Cn v. Lyp

FCMC 2915 / 2020

[2023] HKFC 144

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 2915 OF 2020

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BETWEEN

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DECISION
(Leave to Appeal and Stay of Execution)

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A. THE APPLICATION

1.This is the Respondent Mother’s application by Summons dated 12 May 2023 for leave to appeal against the orders in the Judgment dated 24 April 2023 (the “Judgment”) and a stay of execution pending the intended appeal.

2.I adopt the same abbreviations and definitions used in the Judgment.

3.In summary, I ordered that the Children be relocated permanently to Singapore with Father subject to conditions and undertakings referred to in [140] to [143] of the Judgment.

4.A Memorandum of Notification of Mother’s application for legal aid was filed on 25 May 2023. The proceedings were therefore stayed for 42 days from 25 May 2023 to 6 July 2023 pursuant to Section 15 of the Legal Aid Ordinance and Regulation 7A of the Legal Aid Regulation. The statutory stay was lifted on 7 July 2023.

B. LEGAL PRINCIPLES

5.Before I consider Mother’s Summons, I summarise below the well-established legal principles on the granting of a leave to appeal and a stay of execution pending appeal.

6.Leave to appeal should not be granted unless there is a reasonable prospect of success or some other reason in the interests of justice that the appeal should be heard: Section 63A of District Court Ordinance. A reasonable prospect of success involves the notion that the prospect must be more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125. Where an appeal is against the findings of fact or is involved the exercise of the discretion, the intended appellant must show that the decision was plainly wrong, or has taken into account irrelevant matters or omitted to have regard to relevant matters. The appellant must identify palpable errors in the judgment. An assertion that the finding is against the weight of the evidence or that the judge should have reached another conclusion because of the points advanced in the submissions are not errors within this category: TAC v VDC nee VDM, HCMP 2198/2012, 5 December 2012; China Gold Finance Limited v CIL Holdings Limited, CACV 11/2015, 11 November 2015.

7.The court will usually not exercise the discretion to grant a stay of execution unless the intended appellant can show that there is an arguable appeal (that is, one with reasonable prospects of success), and there is circumstance justifying the deprivation of the winning party of the fruit of judgment, for example having regard to the nature of the order that is the subject matter of the appeal, an appeal would be rendered nugatory without a stay of execution. A balancing exercise shall be conducted with common sense. It is impractical and undesirable to go deeply into the merits and strength of an appeal, but the court must form a preliminary view of the same: Star Play Development Ltd v Bess Fashion Management Co. Ltd, HCA 4726/2001, 7 June 2002.

C. INTENDED GROUNDS OF APPEAL

8.Mother advanced 5 intended grounds of appeal in her draft Notice of Appeal, which can be summarised in two main categories. The first is an allegation of bias against her (intended ground 1). The second is an appeal against the findings of fact, specifically, Mother contended that I failed to take into account the Children’s wishes and feeling, and the recommendations of social welfare officers, and wrongly accepted Father’s evidence and contentions (intended grounds 2 to 5).

9.Mother has not given any particulars on her allegation of bias. As it can be shown in the Judgment, I have carefully considered the evidence and submissions of both parties, including the evidence in favour of Mother. In the conduct of the trial, I have allowed fair opportunity for both parties to present their cases. Mother has not pointed out any basis for her allegation of bias, whether actual or apparent. There are no merits in this ground.

10.With respect to the intended grounds 2 to 5, contrary to the allegation of Mother, the court’s findings were reached after careful consideration of the Children’s views, age, maturity, development and emotional needs. The findings and recommendation in the SIRs and the ISIRs as well as the evidence of the three social welfare officers have been fully considered. Reasons were given for the departure from Ms Lau’s recommendations to maintain the status quo after balancing the financial sustainability of both parties’ relocation plans, the development of meaningful relationship with both parents and co-parenting, child care and children’s emotional needs, and the Children’s views, see Judgment [88] to [134]. The decision was not reached only by reason of Father’s evidence, nor because of Father’s contentions against Mother. Mother has not showed that the decision was plainly wrong or that the court has taken into account irrelevant matter, or omitted to have regard to relevant matters. There is no reasonable prospect of success in intended grounds 2 to 5.

D. CONCLUSION AND COSTS

11.There is thus no reasonable prospect of success in Mother’s intended appeal. Stay of execution shall not be granted. Mother’s Summons is dismissed.

12.There is no reason to depart from the general rule of costs follow the event. On a nisi basis, I order that Mother do pay Father’s costs of this application to be assessed summarily. In the absence of any application for variation by summons within 14 days from the date of this decision, this costs order nisi will become absolute.

13.For the purpose of summary assessment of costs, I direct the following orders to take effect upon the making of the costs order absolute:

(1) Father shall lodge and serve a statement of costs within 14 days from the date of the costs order absolute; and

(2) Mother shall lodge and serve a list of objections within 14 days thereafter.

14.The trial was conducted in English and all key documents were written in English. This decision is, therefore, also written in English. Mother may, if she considers necessary, approach the court to make arrangement for interpretation of this decision to her in Chinese language in the court building.

Ms. Vivien Leung instructed by Ip & Heathfield for the Petitioner.

The Respondent acting in person.