Wssa v. Syh

FCMC 4633 / 2020

[2023] HKFC 217

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4633 OF 2020

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D E C I S I O N
(Leave to Appeal)

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The Application

1.The Petitioner is the wife.  The Respondent is the husband.  I will refer to them conveniently as “W” and “H” in this Decision.

2.On 30/6/2023 this Court handed down its Decision dismissing H’s application by Summons dated 30/12/2021 (filed on 3/1/2022) seeking an Order that I shall be recused from participation in these proceedings including any further hearings (“Recusal Decision”).

3.On 14/7/2023 H issued a Summons seeking leave to appeal the Recusal Decision.  It was common ground that the Recusal Decision was reached as an exercise of discretion and not any factual adjudication.

4.W opposed H’s application for leave to appeal.  W filed her written submissions in opposition.

H’s Draft Grounds of Appeal

5.In H’s draft Notice of Appeal, there are 2 main grounds on which H relied upon, namely :-

“Ground 1 : Misapplied the Proper Test of the Reasonable Apprehension of Bias and/or Failing to Review as the Fair-Minded Observer;

Ground 2 : Failed to Take into Account Material and Relevant Considerations.

6.Within Ground 1, H referred to 7 different matters (from (a) to (g)) that had happened and identified each of them by reference to the paragraph numbers in the Recusal Decision.  H submitted that they would arouse reasonable apprehension of bias and; particularly that of the Fair-Minded Observer (“FMO”).  I would go through each of them in their order of sequence by reference to H’s sub-grounds (a) to (g) under Ground 1.

7.Further, it was said that in making those decisions or uttering criticisms against H as set out in sub-grounds 1(a) to (g), I was wrong to ignore the fact that the FMO would be informed the pertinent background facts that :-

-  the case was only at initial stage with mutual allegation of violence on affidavit evidence which had yet to be found by the court;

-  H seriously allegation that W was an unfit carer;

-  there was expert evidence on removal of the son from H and W and that access be supervised for both H and W;

-  I acknowledged that the ouster order made against H was said not because H was the “bad guy” but just to avoid conflict;

-  prior to the ouster order, H and W had equal access;

-  everyone is entitled to make applications to the court and has the right to be heard except legitimately barred from doing so.

(collectively called the “Background Facts”).

The provisions on granting leave to appeal

8.The jurisdiction to grant leave to appeal rests with section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.

9.The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he or she has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011) per Fok JA (as he then was) at paragraphs 8 and 9 of the Judgment.

Appeal on exercise of discretion

10.It is trite that an appellate court may only interfere with the exercise of the judge’s discretion in the court below in limited circumstances, in accordance with the well-established principles in Hadmor Productions Ltd v Hamilton [1983] 1 AC 191 at 220B to E (see SPH v SA at paragraph 65).

11.Further, the appellate court would not interfere the judge’s discretion in the court below merely because it would have reached a different conclusion had it been hearing the application at first instance.  It can only interfere in three type of cases : (1) where the judge has misdirected himself with regard to the principles in accordance with which his discretion had to be exercised; (2) where the judge, in exercising his discretion, has taken into account matters which he ought not to have done; or (3) where his decision was plainly wrong. (see Bright Shipping Ltd v Changhong Group (HK) Ltd (No.2) per Kwan J, VP at paragraph 5)[1].

12.In the Court of Appeal decision in the case of Wong Kar Gee Mimi v Severn Villa Ltd[2] where Kwan JA, having cited the general principles on granting leave to appeal, further said :-

“30.  Even if the threshold test of reasonable prospect of success is satisfied, the court still retains a discretion whether to grant leave, although the fact there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion. The court may refuse leave to appeal in the interests of procedural economy and proportionality (emphasis added).

31.  It must also be borne in mind that the orders made by the Judge in the intended appeal are case management decisions in the exercise of the discretion of the Trial Judge.  Case management decisions are only subject to appeal in rare circumstances. The appellant faces a “very high hurdle” and must show that the Judge “has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task”, or if the Judge “erred in principle or the order was irrational having regard to the issues that had to be resolved”.  It need hardly be emphasised that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the Judge has misunderstood the law or the evidence or the exercise of discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible.”

Discussion

13.Guided by the above principles, I will now consider W’s draft grounds of appeal in sequence.

Sub-ground 1(a)

14.H contended that at paragraphs 42 to 44 of the Recusal Decision, I had suggested a “practice” that an interim non-molestation order should be made against a party who refused to provide an undertaking to the same effect. This was not an insight possessed by the FMO nor could I argue that there was no bias. Actually, this was just self-justification.

15.It could be seen clearly by any FMO that this Court was simply stating a normal and common pattern of handling non-molestation order applications before it was finally decided after the substantive trial one way or the other.  Reciting below is paragraph 43 of the Recusal Decision, those words which are now bolded are self-explanatory.  With respect, it was utterly wrong to assert that a “practice” was thereby suggested by me as a ground of appeal. 

“43.  In most cases, a party against whom non-molestation order(s) or injunctive relief(s) are sought would normally agree to provide undertaking(s) similar or identical to the relief(s) sought against him or her for the interim period (emphasis added) pending substantive argument of the application(s).  This was done in order to avoid any interim order(s) being granted before the matter was fully argued.  There was no admission of any liability or prejudice of rights by offering the undertaking(s).”

16.The further submission was that even if it was a practice “of the court of the Judge”[3], this was not an insight possessed by the FMO.  With respect, such further submission was completely groundless for 2 reasons.  First, as just said above, there was never a “practice” of providing undertakings suggested by me.  Secondly, the use of the phrase “the court of the Judge” was a statement tailored made for H’s personal stigmatization against this Court.  Such submission, in my view, implicates or suggests that different courts with different presiding Judges administer justice differently.  Such submission, however, was not surprising when it comes from litigants who always with forum-shopping in mind.

17.I find there was no reasonable prospect of success on appeal in respect of sub-ground 1(a).

Sub-ground 1(b)

18.For sub-ground 1(b), the question was actually a three-fold one.  First, for the FMO, whether he or she was aware of the technical distinction between shared care and control on the one hand and week-on week-off access on the other hand ?  Secondly, whether the FMO had knowledge that H, whilst being subjected to an ouster order, would be disentitled to an equal access order ?  Thirdly, H’s week-on week-off proposal was dismissed by me by default (emphasis added) for not to be an access proposal suggested by H.  

19.H submitted that my justification that his week-on week-off proposal was a shared care and control but not an access proposal at paragraph 62 of the Recusal Decision was plainly wrong.

20.I have made it abundantly clear at paragraph 62 of the Recusal Decision that H had not come forward with any access proposal was arrived at from reading 52T to 53D of the official transcripts recording in Miss Yip, S.C.,’s submissions for H.  Suffice for me to say here was that H’s shared care and control proposal or his week-on week-off proposal rests with the provision of caring by H rather than the provision of access of H over the children whose interim care and control was granted to W on the same day of the interim ouster order, that is, on 29/7/2021.  This is more alarming when there was no protest of the interim ouster order by way of any stay of execution application or by way of an appeal.

21.To suggest shared care and control or week-on week-off proposal was an access proposal, in my view, was wrong since “care and control” and “access” are two different perspectives which could not be intermingled.      

22.It follows that the other submission of H that his week-on week-off proposal was dismissed by me by default (emphasis added) falls apart.  Further, the technical distinction between shared care and control and week-on week-off proposal, in the eyes of the FMO, was immaterial insofar as access proposal was concerned.

23.Had there been any justifiable complaints over the so-called “extremity” of the order, be it the interim ouster order or the non-molestation order, it was a matter for appeal of the respective order(s) rather than making a personal statement to frame as a ground of appeal of the Recusal Decision.

24.I find there was no reasonable prospect of success on appeal in respect of sub-ground 1(b).

Sub-ground 1(c)

25.For sub-ground 1(c), H referred to the comments made in the Recusal Decision that H’s case lacked “utmost urgency and exceptional circumstances”; on “costs effectiveness and practicality”; on “bombarding”; on “fair distribution of the Court’s time for other users” etc.  H submitted that all these comments were unnecessary, personal and highly prejudicial which did not dispel the real possibility of bias to the FMO.

26.H complained that my comment over his variation application lack of“utmost urgency and exceptional circumstances”was only raised in the Recusal Decision[4] but not prior illustrated that I was actually engaging in a self-justification exercise with reasoning not present (or alternatively, not known to the parties) at the time of the letter dated 18/8/2021.  My other comment of “costs effectiveness and practicality”[5] also was not raised prior.  H then formed the view that the more justifications I made, the more shows the unnecessity and prejudicial and biased nature of my comments as perceived by the FMO.

27.There was a fundamental flaw in such submission.  H seems to suggest that I should “voice out” my observation or comments in advance of making those case management decisions that I have made which he was not satisfied with.  H was saying that I should/could have done so in the letter dated 18/8/2021 but I did not.

28.In my decision, providing reason(s) for dismissing any recusal application always come after the case management decision that was made which had triggered the summons seeking recusal.  How could this be said to be making self-justification in the mind of any objective FMO ?  There are no conditions precedent to the exercise of any case management decisions.  Any party so affected and aggrieved by the case management decisions could challenge those case management decisions (emphasis added) on limited and narrow grounds by way of an appeal rather than appealing the Recusal Decision.     

29.I find there was no reasonable prospect of success on appeal in respect of sub-ground 1(c).

Sub-ground 1(d)

30.For sub-ground 1(d), H referred to the Court’s communication with the Official Solicitor (“OS”) which ended up with vacating the 4-day trial originally scheduled for H’s variation of care and control application without H being heard or being able to make any representation in advance.  This had deprived H of due process/departed from the proper procedure.  The Court’s justification that no submission would have changed the result of adjourning the 4-day trial would be perceived by the FMO as clear deprivation of due process/proper procedure and hence prejudicial to H seeking to be heard.

31.H also referred to this Court not giving the parties any opportunity to make representation if the Order vacating the 4-day trial was made under Order 1B r.2(4) of the Rules of the District Court, Cap.336H.  It was said that the Court did not observe r.2(5)(b).

32.It must be remembered that the OS was appointed by the Court to represent the children in these proceedings.  There had never been any protest by H or W of such appointment.  The initial 4-day trial was scheduled for H’s variation of care and control application when OS’s input and participation at the trial and their Reports are clearly indispensable material evidence. 

33.It must also be remembered that the date of the OS letter was 25/8/2021[6], which was only 13 days ahead of the scheduled 4-day trial to commence on 7/9/2021.  Given the imminence of the trial and the OS’s readiness for trial had yet to complete as per their letter, that there are various outstanding matters which need to be resolved, to vacate the scheduled 4-day trial was inevitable and the only viable option in the circumstances.  H’s contention of non-compliance with Order 1B r.2(5) is a red-herring for the simple fact that it was impossible for the parties to make representation within the 13-day period to avoid adjourning the 4-day trial.  At the expense of repetition, I said the following :-

“103.  I failed to see what input could the parties provide had they been informed of the OS’s letter and the OS’s concern even if they were invited to provide submissions. I could foresee possibly there would be a further attempt by either or both parties to push for another so-called “urgent” hearing within the 13-day period between 26/8/2021 to 6/9/2021 under the disguise of tackling OS’s concern which apparently for no practical purposes other than increasing legal costs and “hijacking” the Court’s limited resources to the prejudice of other court users.  This was not a question of fairness to the parties or affording them the right to make submissions.  How could the parties manipulate the OS’s concern by providing their submissions ?”

34.It turned out that the first day of the original 4-day trial on 7/9/2021 was made use of for hearing another Summons taken out by H for variation of interim access and to deal with other related matters.  It ended up with most of the morning (10:33 a.m. to 1:03 p.m.) and afternoon (4:35 p.m. to 5:46 p.m.) of 7/9/2021 was spent for H’s Summons and various directions were granted.   

35.I stand by my decision[7] that no objective by-stander or FMO, apprised of the above facts, would conclude that there was any apparent bias or risk of bias against H for vacating the original 4-day trial commencing 7/9/2021.

36.I find there was no reasonable prospect of success on appeal in respect of sub-ground 1(d).

Sub-ground 1(e)

37.For sub-ground 1(e), H first referred to what I said when deciding H’s Summons for variation of interim access (using the first day of initial 4-day trial on 7/9/2021) that I had suggested possible misdeeds by H.  The FMO would perceive this as a real possibility of bias.  H disjunctively quoted what I said :-

“……..would the father now want something to happen during access without being notified or recorded by any third party witness, say, Rent- A-Mum ?”[8]

38.H then referred to what I said later in the Recusal Decision[9] about my observation and expression of an “oddity” in that H once accepted the presence of Rent-A-Mum in the past but now sought to replace the Rent-A-Mum with his newly hired domestic helper.   

39.Finally, H referred to my suggestion that having another representative from Rent-A-Mum would avoid any unnecessary allegation of “snooping” by H or W through the domestic helper as another representative to substitute Ms. S when she was unavailable. H said the suggestion of avoiding “snooping” was an afterthought by me, also my skewed attempt to justify the order on additional Rent-A-Mum.  H said that no sound justification was provided by me for the personal and uncalled for comments over H.

40.It was well accepted by parties’ legal teams including Senior Counsel that the hearing on 7/9/2021 lasted for almost whole day (from 10:55 a.m. to 1:03 p.m. and then from 4:33 p.m. to 5:46 p.m.).  As can be seen from the official transcripts, there were lengthy dialogue and exchange of views between Senior Counsel on both sides and this Court which ended up with the orders and directions granted. 

41.That said, it was pertinent to go through the entire dialogue and exchange of views, rather than cherry-picking phrases or sentences disjunctively to support H’s allegation of afterthought, bias and skewed attempt.

42.H’s reference to my suggesting possible misdeeds[10] was extracted from one of the few paragraphs at 50R to 51J of the transcripts.  In fact, the statement cited was actually taken out of context.  The preceding part(s) of the paragraph containing the cited statement (repeated in bold below) was important which are repeated as follows :-

“Having said, without the presence of the Rent-A-Mum during access in the past, where would be the evidence to support the father’s own case that he is a suitable carer of the children ?  Why would the father now be so concerned with the presence of Rent-A-Mum and would ask for uplifting the supervision arrangement ?  Would the father now want something to happen during access without being notified or recorded by any third-party witness say, the Rent-A-Mum ?”

43.Reading the cited statement in context, it was clearly a hypothetical question to the 2 other preceding questions in that same paragraph.  It should not be misconstrued to say the Court was forming any definitive view, suggesting or was biased to H.  Further, it must not be misconstrued to suggest that H was being insinuated to have something to hide.

44.For the “oddity” observation and expression, it was made abundantly clear at paragraph 121 of the Recusal Decision that the entire paragraph cited under paragraph 42 above was a “self-serving remark” for the “oddity”.  Thus, there was no question of any alleged skewed attempt to justify the order made against H when I said there was an “oddity”.

45.For the suggestion of avoiding “snooping” that I said in paragraph 124 of the Recusal Decision, H now submitted that it was never raised before I made the decision on supervised access by using another Rent-A-Mum when Ms. S was not available.  Thus, this was my afterthought seeking to justify my orders.

46.The concern of “snooping” actually came from the submissions of Miss Yip, S.C., for H if one reads the 7/9/2021 transcripts of hearing at page 68B to 68E where she said :-

“Miss Yip :

….so far, she has been there, helping the parties.  Your Honour, why is that necessary ?  Why does the mother want to snoop ? why does the mother want to keep surveillance by sending her own helper ?  Why is that ?  I don’t see any reason at all.  The father has moved out.  The father is supposed, as your Honour has said, is supposed to enjoy quality time.  And we’re just talking about something which may not even happen, just in case.”

47.Given the concern of “snooping” was thrown out by Miss Yip, S.C., for H, it was fair and reasonable for me to refer to H’s concern of “snooping” in my Recusal Decision. I failed to see how H could now turn around and complained that “snooping” was my afterthought, my skewed attempt to seek justification or I had been biased to H when it actually came out from his own legal team’s submission.

48.I find there was no reasonable prospect of success on appeal in respect of sub-ground 1(e).

Sub-ground 1(f)

49.For sub-ground 1(f), H submitted that a Grepe v Loam order was granted by me without initiating the necessary process by informing the parties and to give parties sufficient opportunities to make submissions.  Reference was made to his 17^th Affidavit paragraph 33 and W’s 15^th Affidavit paragraph 87 to support his case that I have imposed leave requirement for issuing Summons.

50.At paragraph 138 of the Recusal Decision, I said the reason for not listing a date for hearing H’s Holiday Summons was because H sought for the Summons to be dealt with by paper disposal (emphasis added).  Why should a hearing date be given for an application expressly saying to be dealt with by way of paper disposal ?

51.H in his 17^th Affidavit paragraph 33 did not provide any explanation nor did he say that actually he was required by the Court to first clarify his position of the Holiday Summons before a hearing would be scheduled.  Instead, H twisted around by arguing a Grepe v Loam order was granted by me.  This was plainly wrong.

52.At paragraph 87 of W’s 15^th Affidavit, she correctly said it was a case management arrangement depending on the court’s diary, nature of the application, likely time needed and the urgency of the application.  This was what “approval” means in context.  H tried to portray the case management arrangement as if there was a Grepe v Loam order granted by me.  I agree with W.

53.I find there was no reasonable prospect of success on appeal in respect of sub-ground 1(f).

Sub-ground 1(g)

54.For sub-ground 1(g), H referred to paragraph 146 of the Recusal Decision and pinpointing to paragraph no.2 cited therein where I said :-

“2.

The so called “urgency” for hearing the Intended Summons prior to commencement of the coming Christmas school holiday on 21/12/2021 was based upon the Respondent’s personal wish, aspiration and/or manipulative and/or assertive manner of conducting litigation as opposed to any legitimate juridical grounds considered objectively.”

55.It must first be remembered that the cited paragraph no.2 was part of the letter of reply dated 10/12/2021 to H’s lawyers containing the directions granted by me on 9/12/2021.  The Christmas school holidays started on 21/12/2021 (that is, 11 days after the date of the letter).  Clearly this was H’s wishful thinking that his Holiday Summons could be heard within the period of 11 days (including Saturday and Sunday).  This justified my use of the expression “so called urgency (emphasis added) in my directions”.

56.H also complained that my comments “Respondent’s personal wish, aspiration and/or manipulative and/or assertive manner of conducting litigation” are extremely personalised and scathing and would lead FMO to conclude there was a real possibility of bias against H.  In my decision, the said comments must be read in context and in conjunction with what I then said, that is, “as opposed to any legitimate juridical grounds considered objectively (emphasis added) so that it could be probably and fairly understood by the FMO.   

57.That said, my comments are clearly justified and well-founded in the mind of the FMO for the following reasons :-

-  repetitive letters/requests from H’s lawyers for listing his          Holiday Summons keep coming in despite that all of which      had been responded to by this Court (see paragraphs 129 to         144, 146 of the Recusal Decision; and

-  insisting to list a hearing of the Holiday Summons despite the shortness of time of only 11 days before the Christmas Holidays start; and

-  the increased general access already in place (see paragraph 145 of the Recusal Decision).

58.I find there was no reasonable prospect of success on appeal in respect of sub-ground 1(g).

Ground 2

59.H complained that there was failure on my part to take into account material and relevant considerations.  In so saying, H referred to himself losing faith and confidence in my impartiality and professionalism.  H also submitted that my presence as the FDR and CDR judge would undermine his chances of success of both.

60.H went further to submit that I could recuse myself even without a proper hearing or adjudication on the complaint of bias against me simply for the sake of protecting the appearance of justice[11].

61.Ground (2) was devoid of merit and substance.  It could hardly be accepted.  H’s perception of impartiality on my part was a self-proclaimed one not substantiated by any evidence.  Likewise, H’s concern of not succeeding in both FDR and CDR before me as the presiding judge was another self-proclamation rather than any legitimate reason for seeking leave to appeal my Recusal Decision.

62.H’s other submission of recusal simply for the sake of protecting the appearance of justice even without hearing the complaint or any proper adjudication is a complete non-starter.  The facts of this case do not support such an avenue for recusal.

63.I find there was no reasonable prospect of success on appeal in respect of Ground 2.

Any other grounds in the interests of justice ?

64.Apart from the above grounds of appeal, there was no submission by H that leave to appeal should be granted on the “interest of justice ground” for granting him leave to appeal.  Nonetheless, I have also considered this limb.

65.Upon considering the peculiar background and circumstances of this case, I find there are no other grounds in the interests of justice to grant leave to appeal to H against my Recusal Decision.

Decision

66.For all the reasons above, I decided that H’s application for leave to appeal the Recusal Decision fails.

Costs

67.Given the outcome of H’s application and the above reasons, I decided that it is only fair and reasonable for costs to follow the event. 

68.I also grant Certificate for one Counsel.

Orders

69.I now grant the following Orders :-

(a)  H’s Summons dated 14/7/2023 for leave to appeal be dismissed;

(b)H to pay W’s costs of his application, to be taxed if not agreed;

(c)  There be Certificate for one Counsel.

70.This is a costs order nisi which will become absolute if no application to vary the same is made within 14 days from the date of this Decision.

Miss Theresa Chow and Mr. Adrian Kwan instructed by Messrs. Ho & Ip, Solicitors for the Petitioner

Miss Anita Yip S.C., leading Mr. Ken S.H. Chan, instructed by Messrs. Withers, Solicitors for the Respondent