Yf v. Wmp

FCMC 1226 /2021

[2025] HKFC 50

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 1226 OF 2021

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RULING

(Leave to Appeal)
(Paper Disposal)

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The Application

1.This is the petitioner’s application for leave to appeal against my Judgment of 27 November 2024 (“the Judgment”). By the Judgment, I allowed the respondent’s appeal against Master Chak’s decision on 11 July 2024 (“the Striking Out Order”) to strike out his 2 summonses for maintenance for the benefit of their two children when he failed to appear at the hearing on that date. I also made an order nisi (“the Costs Order Nisi”) that the petitioner is to bear the costs of the appeal, summarily assessed at $2,000.

2.Although the parties have already divorced upon the issue of a decree absolute on 18 September 2023, for convenience, I shall continue to refer to the petitioner as “the wife” and the respondent “the husband”. I shall use the same abbreviations and nomenclatures adopted in the Judgment.

3.The wife was unhappy with the Judgment. On 20 December 2024, she lodged an application for leave to appeal and sought to have the Striking Out Order be reinstated plus costs payable to her.

4.Shortly before her leave to appeal application, the wife also filed a summons on 10 December 2024 (“the Wife’s Summons”) seeking to reverse:

(1)  The Costs Order Nisi; and

(2)  The Publication of the Judgment.

5.Furthermore, the wife also seeks my recusal from hearing any further matter in these proceedings.

6.I need to mention the Wife’s Summons because the reversal of the Costs Order Nisi being sought by her has a bearing on how to deal with her leave to appeal in respect of the Costs Order Nisi for the reasons that both applications relate to the same subject matter. The Wife’s Summons is being dealt with separately and have no concerns with this Ruling.

A Brief Chronology

7.The brief chronology of events is as follows. The references to paragraphs in the chronology below are references to paragraphs of the Judgment.

(1)  On 19 March 2024, the husband took out 2 summonses for children’s maintenance which were fixed to be heard on 3 May 2024 (“the Husband’s Hearing Date”) before Master Stanley Ho (“Master Ho”): see [19].

(2)  On 29 April 2024, the wife took out her own summons for children’s maintenance returnable on 11 July 2024 before Master Chak: see [20].

(3)  On or about 29 April 2024, the wife wrote unilaterally to Master Ho seeking vacation of the Husband’s Hearing Date for the purpose of having both parties’ applications to be heard on 11 July 2024: see [21] & [22].

(4)  The wife’s application was granted by Master Ho on 2 May, 2024, one day before the Husband’s Hearing Date. Master Ho vacated the hearing and had it re-fixed to 11 July 2024: see [23].

(5)  On 5 May 2024, the husband wrote to the Registry that he would not be able to attend the hearing of 11 July 2024 for the reason that he and the 2 children would be on a trip to the UK during the entire month of July: see [25].

(6)  The husband’s letter was only brought to the attention of Master Chak on 2 July 2024 who directed that the hearing of 11 July 2024 remained unchanged: see [26].

(7)  On 11 July 2024, the husband did not appear at the hearing; thereupon, Master Chak made the Striking Out Order: see [1] & [27].

(8)  The husband then lodged an appeal and was successful before me. The wife now seeks to reverse my decision.

8.As I have already set out the factual background and my reasons in the Judgment, I do not propose to repeat the same here. This Ruling has to be read together with the Judgment. In gist, as set out in the Judgment, I considered that -

(1)  Master Ho erred in acceding to the wife’s unilateral application for the moving of the Husband’s Hearing Date: see [32] to [34]; and

(2)  Master Chak erred in the exercise of her discretion to make the Striking Out Order.

Legal Principles

9.The relevant test governing applications for leave to appeal from the District Court is provided in section 63A(2) of the District Court Ordinance (Cap 336) (“DCO”):

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that –

(a) The appeal has a reasonable prospect of success; or

(b) There is some other reason in the interests of justice why the appeal should be heard.” [emphasis added]

10.On the circumstances in which leave will be granted, the Hong Kong Civil Procedure (2025) sets out the legal principles at §59/2A/4:

Circumstances in which leave will be granted—For leave to appeal to be granted courts will normally apply the "reasonable prospect of success” test or the "interest of justice” test set the threshold for granting of leave to appeal (see High Court Ordinance (Cap. 4 ), s.14AA(4) ; District Court Ordinance (Cap. 336 ), s.63A(2) ; and Lands Tribunal Ordinance (Cap. 17 ), s.11AA(6) ). Section 14AA(4)(a) of the High Court Ordinance (Cap. 4 ) provides that leave to appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter should not be granted unless the court hearing the application for leave is satisfied that the appeal has a reasonable prospect of success. In SMSE v KL [2009] 4 HKLRD 125, [17], Le Pichon JA observed:

"Leave to appeal under Order 59 rule 2B is not lightly granted. The relevant test appears in section 14AA(4) of the High Court Ordinance. In granting leave, the judge must have considered that the test set out in section 14AA(4) had been met. The section requires that the court be satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard before granting leave. Reasonable prospects of success involves the notion that the prospects of succeeding must be ‘reasonable’ and therefore more than ‘fanciful’, without having to be ‘probable’.” (See Zhang Rui Kang v Tunghsu Group Co Ltd [2023] HKCFI 2451 for the application of this principal.)

In Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515, Chu J observed that:

"The adoption of the ‘reasonable prospect of success’ test, as opposed to the ‘real prospect of success’ test, in our legislation is not accidental. In the Interim Report of the Chief Justice’s Working Party on Civil Justice Reform (2001), the proposal was to adopt the ‘real prospect of success’ test as the threshold for granting leave to appeal: Proposal 44 and paras 535-539. In the Final Report (2004), however, the Working Party decided to adopt as the test for granting leave a requirement that the appeal has reasonable prospects of success, as conveying the notion that the prospects of succeeding in the appeal must be ‘reasonable’ and therefore more than ‘not fanciful’, without having to be ‘probable’: Recommendation 115 and para.656. … To meet the ‘reasonable prospect of success’ test, an applicant is required to show more than just an arguable case, but an appeal that has merits and ought to be heard, although he does not have to demonstrate that the appeal will probably succeed.”

In KNM v HTF (HCMP 288/2011, [2011] HKEC 1210), [9], the Court of Appeal confirmed that "The relevant test of whether an appeal has a reasonable prospect of success under section 63A [District Court Ordinance], 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’.” It was insufficient to show that the appeal was "merely arguable” and "not fanciful” for the court to be satisfied that it had a reasonable prospect of success. In respect of case management decisions, the appellant faces a very high hurdle and has to show that the Judge had gone clearly wrong and made orders which clearly involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that his order was irrational ( Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 applied Lee Tak Yee v Chen Park Kuen [2001] 1 HKLRD 401 and Kan Miu Wah v Aeroflot Russian International Airlines (CACV 142/2006, [2006] HKEC 1658 )).

11.Finally, the Court of Appeal in ZJ v XWN, CAMP 67/2018, [2018] HKCA 436 (date of judgment: 25 July 2018) stated, at [64], that application for leave to appeal should be a filtering process and should be conducted summarily and proportionately.

12.Guided by these principles, I turn to the wife’s grounds of appeal.

The Wife’s Grounds of Appeal

13.The wife advances a number of paragraphs which, for the reasons I set out below, is not necessary to refer to in details. The wife says I was wrong, in fact and law, to draw and make findings based on no or insufficient factual foundations and I failed to consider other likely inferred conclusions. The findings that the wife wants to challenge are:

(1)  There was no reason why the wife applied to vacate the Husband’s Hearing Date “at such as late stage”.

(2)  The wife deliberately attempted to delay proceedings and failed to make full disclosure to Master Ho;

(3)  She was “dishonest”, engaged in “devious” tactics, “deceit” and “culpable conduct”;

(4)  The Striking Out Order was the result of the deceit of the wife; and

(5)  The Husband’s Hearing Date was improperly vacated and re-fixed.

The Husband’s Opposition

14.The husband has not lodged any Submissions in Opposition. The time for him to do so expired on 6 January 2025.

Discussion

15.I shall deal with the wife’s grounds in one go.

The Wife’s Application to have the Striking Out Order be reinstated

16.In my view, it may well be that the wife is unhappy with the negative comments that I made regarding her unilateral application to Master Ho for the moving of the Husband’s Hearing Date.

17.However, it is important to remember that that it was not Master Ho who made the Striking Out Order; it was Master Chak.

18.In arriving at the conclusion that Master Chak erred in exercising her discretion, I referred to the Court of Final Appeal Judgment in Wing Fai Construction Co Ltd v Yip Kwong Robert (2011) 14 HKCFAR 935 and the principles summarized by the Hong Kong Civil Procedure (2024) at para 25/L/2. In gist, the main principles are that the power to dismiss or strike out is one of the last resort, and actions may only be struck out in plain and obvious cases: see [37].

19.In the present case, Master Chak was well aware of the husband’s reason for his absence. When the Master made her decision to have the hearing remained unchanged, she should be aware of the fact that the husband had already left for the UK: see [38].

20.It is clear that at the time when the Master exercised her discretion to make the Striking Out Order, her attention was not drawn to the factual background against which the Husband’s Hearing Date was vacated and re-fixed. In other words, when the Master exercised her discretion, the vacation of the Husband’s Hearing Date (whether correctly or erroneously) was not one of her considerations. With the principles on striking out set out above, the Master should have exercised her discretion to have the summonses adjourned to another date instead of having them struck out or dismissed: see [43]. It was wrong for the Master to have made the Order simply on the ground of his absence (and not repeated absences) especially when the reason for absence was known.

21.For these reasons, I have no doubt that the wife’s grounds do not have any reasonable prospect of success and ought to be dismissed; and I so order.

The Wife’s Application regarding the Costs Order Nisi

22.I only need to be brief on this.

23.The wife’s grounds may be relevant to the issue of costs. However, as I have referred to above, prior to her lodging of this application for leave to appeal, the wife had on 10 December 2024 applied to have the Costs Order Nisi to be reversed which is due to be determined pending the exchange of affidavits. Seen in this light, the wife’s application for leave to appeal on this issue is premature. She should have waited for the outcome of the Wife’s Summons on costs before taking out the leave to appeal application. For this reason, I make no order on the wife’s application for leave to appeal on the Costs Order Nisi.

Costs

24.The husband did not lodge any submissions in opposition. In the circumstances, it is fair that the costs order of the wife’s application for leave to appeal is no order as to costs; and I so order.

The Petitioner, in person

The Respondent, in person