Aldl v. Ftfc and Another

FCMC 13698/2013

[2024] HKFC 192

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 13698 OF 2013

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BETWEEN

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DECISION
( Leave to Appeal: Preliminary Issues Judgment)

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1.This is the application taken out by the petitioner (“W”) for leave to appeal against the Judgment handed down by me on 17 April 2024 (Re: Preliminary Issues and Section 17 Applications) ("Preliminary Issues Judgment").

2.In so far as applicable, I would use the same abbreviations as that in the Preliminary Issues Judgment[1].

Legal principles regarding leave to appeal

3.Section 63A(2) of the District Court Ordinance (Cap. 336) provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

4.The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125.

5.As to the appellate approach for challenges to findings of fact, the leading authority is Ting Kwok Keung v Tam Dick Yuen & Ors (2002) 5 HKCFAR 336. The CFA said:

“42. Where the judgment turns on an issue of fact, the Court of Appeal must have regard to the nature of that issue of fact. And it must have regard to the advantages enjoyed by a trial judge who received the evidence on such an issue at first-hand, in other words, in whose presence the whole of the evidence unfolded in its living state. Such advantages can be, as Lord Shaw of Dunfermline put it in Clarke v. Edinburgh Tramways at p.36, "sometimes broad and sometimes subtle". The question for the Court of Appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong. The Court of Appeal should intervene if so satisfied. But if not so satisfied, the Court of Appeal should defer to the trial judge's conclusion even if in some doubt as to its correctness.”

Ground 1

6.W argued that I failed to have regard to the basis for inferring common intention.

7.I have carefully considered the various facts such as the increase of H’s contributions to R2, H’s stopping investment in property and intention to divorce in 2006, H’s assuming liabilities as joint borrower/guarantor, and cohabitation of H and R2 in 52G Banyan Garden and then Parc Oasis etc.

8.After carefully weighing all the relevant circumstances, albeit some in favour of W but some against her, my primary finding of facts that H intended to give and R2 intended to receive as gifts cannot be said as “plainly wrong”.

9.In short, W is trying to re-run all her arguments at trial again in this appeal, which is inappropriate in this application.

10.I consider that this ground has no merit and reasonable prospect of success.

Ground 2

11.W tried to argue that I wrongly accepted H’s alleged donative intent.

12.Needless to say, I had the opportunity to observe the demeanour of H and R2 when they were subjected to extensive and rigorous cross examination by W’s counsel at trial. I then made the determination of H’s and R2’s credibilities, such as “this payment must be a gift[2]”, “I find that all payments…were gifts out of his love and affection[3]” etc.

13.This ground has no merit and reasonable prospect of success.

Ground 3

14.W submitted that I erred in finding against detrimental reliance.

15.W indeed failed to plead “detrimental reliance” in her pleadings, which had been rightly pointed out in H’s opening submissions but not corrected by W.

16.Due to my primary finding of fact as to gift, this issue is academic.

Ground 4

17.W contended that I erred in law by failing to apply the resulting trust analysis to Liberte[4].

18.The short answer is that my primary finding of fact as to gift would sufficiently rebut any presumption of resulting trust.

Ground 5

19.W said that I failed to set aside the “Director’s Emoluments”.

20.It is also a finding of fact that the “Director’s Emoluments[5]” were genuine remunerations paid to R2, which W cannot show such finding is “plainly wrong”. Even if TF Co. Ltd. is an “alter ego”, I consider that H was still entitled to pay remunerations to R2 for her hard works and introduction of business to the company etc.

21.Again, this ground has no merit.

Conclusion

22.To conclude, W has failed to demonstrate any reasonable prospect of success in her intended appeal and there is no other reason in the interests of justice why the appeal should be heard. Her application for leave to appeal should be dismissed.

23.Regarding the question of costs, there is no reason why costs shall not follow event. H and R2 have lodged their respective statements of costs claiming about $148,192.33 and $123,651 respectively. I consider excessive and order that H’s costs of this application summarily assessed at $110,000 and R2’s costs of this application summarily assessed at $98,000 be solely paid by W forthwith.

Petitioner: Mr Adrian Kwan instructed by Chaine Chow & Barbara Hung

1st Respondent: Mr Azan Marwah and Mr Josh Baker instructed by Tsang, Chan & Woo Solicitors & Notaries

2nd Respondent: Mr Eugene Yim instructed by Chui & Lau