Hkw v. Yyc

FCMC 3123/2021

[2024] HKFC 144

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 3123 OF 2021

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BETWEEN

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DECISION
( R’s leave to appeal )

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1.This is the application taken out by the respondent (“F”) on 19 February 2024 for leave to appeal against my judgment given on 9 January 2024, in which I made an order that parties do have joint custody, the petitioner (“M”) do have sole care and control of Cazzie, a girl born in July 2019, with defined access to F as set out therein.

2.The time for F’s application for leave to appeal expires on 6 February 2024 and delay is about 13 days. He filed an affirmation to explain the reason for delay, namely he was waiting for the consent from the Director of Legal Aid to extend his legal aid certificate to cover this leave to appeal application.

3.Eventually, F’s legal aid was not extended.

Legal principles

4.It is well settled principle that the appropriate tests when considering whether leave to appeal out of time ought to be given are :-

(a) the length of the delay;

(b) the reasons for the delay;

(c) the prospects of success;

(d) the extent of prejudice that would be caused to the other party if leave is granted (see: Leung Yiu & Ors [1998] 1 HKLRD 257).

5.Where the delay is inexcusable, the applicant faces a higher threshold, ie the party must show a real prospect of success on merits and not simply the test of a reasonable prospect of success. The applicant would need to demonstrate a strongly arguable case[1].

6.Section 63A(2) of the District Court Ordinance also provides that for leave to appeal to be granted, the intended appeal should have a reasonable prospect of success or there should be some other reasons in the interest of justice why the appeal should be heard.

7.A reasonable prospect of success involves the notion that the prospect must be more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Hartmann JA at paragraphs 8 and 9 of the Judgment).

Discussion

8.I accept that 13-day delay is by itself not substantial and the reason given by F is also acceptable. Further, no real prejudice is suffered by M.

9.F sets out 12 purported grounds of appeal. In gist, they are essential two-fold by reference to his submission. First, I have failed to consider and/or make findings on M’s hostility against F and its impact on the welfare of Cazzie. Second, I have adopted the 2 SIRs without adequate explanations.

10.In LWH also known as WHHL v NKWS also known as KWSN [2018] HKCA 260, the Court of Appeal said in para. 9:

“Some of the grounds concerned the adequacy of reasons given by the Judge in rejecting the case of W and the Interveners. One of the grounds was that the Judge made it clear that she would not deal with tiny points. We failed to see how this can be a ground of complaint. This Court has repeatedly said that a judge is not obliged to deal with each and every point raised by counsel or litigant in their evidence and submissions. It is sufficient that the Judge gave adequate reasons to explain how the evidence has been weighed. It is an impossible task (and very often it would do more harm than good) if a judge has to rebut the arguments and evidence in great minutiae. We wish to emphasize again that it is not the function of a judgment to address each and every point in arguments or evidence without regard to the significance of the same in the overall exercise in assessment of facts and evidence.”

11.As mentioned in para. 48 to 55, 59 to 61 of my Judgment, I was fully aware of and had carefully considered all F’s allegations including the incidents happened on 13 March 2021, 3 April 2021 and 6 August 2022 as well as the criminal charge in ESCC 2438/2021. Before coming to the decision, I had taken into account of all these matters. In my view, some of the allegations were indeed trivial and had no significance.

12.I was assisted by the 2 SIRs and the oral evidence of the 2 SWOs at the trial, which never showed that the relationship between F and Cazzie was actually hampered by the F’s allegations.

13.As said in para. 67 and 72 of my Judgment, M who is the primary carer of Cazzie has much more stable working schedule than F. M has the assistance from her helper who had looked after Cazzie for several years already. In the best interest of Cazzie, care and control shall be granted to M.

14.I also understand the importance of maintaining the bonding between F and Cazzie. As a result, the defined access granted to F is much generous than that recommended by in the 2^nd SIR.

15.I wholly understand F’s complaints as to M’s obstruction of access and lack of insight. That is the reason why I ordered 12-month supervision by SWO and joint appointment of a parenting co-ordinator, so as to safeguard against any potential obstacle in going forward.

16.In H v W [2021] 2 HKLRD 1251, the Court of Appeal said:

“39. Father’s Counsel had referred the Court to 4 cases from the Court of Appeal in England. The 1^st of these was W v W (A Minor: Custody Appeal) [1988] 2 FLR 505 in which it held amongst other things that although it was entirely within the judge’s discretion whether or not to accept the recommendation of the welfare officers, the judge, if he differed from it, should indicate in his judgment his reasons for doing so, and furthermore, when minded to depart from the welfare officers’ recommendation, the judge ought to consider all the information available and the recommendation should be carefully explored in cross-examination by the representatives of the parties[1].

40. The 2^nd case was Re A (Children:1959 UN Declaration) [1998] 1 FLR 354, in which Thorpe LJ had held amongst other things that it was important that the judge should afford the court welfare officer an opportunity to consider any misgivings the judge might have, or the direction of his thoughts, so that the court welfare officer could comment upon them.

41. This was reiterated by Thorpe LJ in the 3^rd case Re W (Residence) [1999] 2 FLR 390, in which he had held amongst other things that judges were not entitled to depart from the recommendation of an experienced court welfare officer without at least reasoning that departure, and that the judge ought to have expressed his misgivings about her approach to the court welfare officer before giving judgment, providing her with the chance to respond.”

17.I had exercised my independent assessment after carefully considered all the relevant circumstances and decided based on the best interests of Cazzie as to whether I shall adopt part of or all the recommendations made in the 2 SIRs. F’s complaint that I have adopted the 2 SIRs without adequate explanations is totally unfounded.

18.As to the reason why I imposed the condition “provided that F is off duty or on leave”, it is so obvious that F’s working schedule may change from time to time out of his control and that it is undesirable for him to leave Cazzie to be looked after by his mother or the newly hired helper.

19.As to the ground of procedural unfairness, F was always entitled and given opportunity to give written explanations in his affirmations concerning his acceptance of binding over in ESCC 2438/2021 and his affairs with Charlotte or any other allegations made by M against him. F’s legal representatives should have advised him that it must be done by way of affirmation before trial, instead of waiting for cross-examination by M at trial. It is also noteworthy that M was acting in person at trial.

20.None of the grounds made by F has any merit.

Conclusion

21.To conclude, F has failed to demonstrate any reasonable prospect of success in his intended appeal and there is no other reason in the interests of justice why the appeal should be heard. F’s application for leave to appeal should be dismissed.

22.Regarding the question of costs, there is no reason why costs shall not follow event. Ms Bridget Leung, counsel for M, lodged a submission together with a list of authorities on M’s behalf. Although M has not lodged her statement of costs in accordance with para. 9 of the New Arrangement, I am of the view that this application is strict forward and the costs incurred by her for perusal of the relevant documents served on her and preparation of her short submission are very minimal. Thus, I order that costs of this application be paid by F to M summarily assessed at $8,000 forthwith.

Ms Bridget Leung instructed by CL & Co. Solicitors for the Petitioner

Mr Shaphan Marwah instructed by Mike So, Joseph Lau & Co. for the Respondent