Pmcl also known as Lmc also known as Klmc v. Akk also known as Kak and Another

FCMC 11521 / 2015

[2025] HKFC 163

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 11521 OF 2015

----------------------------

----------------------------

_____________________________________

DECISION
(Leave to Appeal & Stay of Execution)

_____________________________________

A.  THE APPLICATION

1.Before me is the Summons (“the Summons”) taken out by H (the 1^st Respondent) on 4 August 2025 for the following reliefs:

1.1.  Paragraph 1 of the Summons - leave to appeal against the orders made by this Court on 22 July 2025 on (a) the preliminary issues of the beneficial ownership of SSEL Shares; and (b) the parties’ ancillary relief claims (“the Orders”);

1.2.  Paragraph 2 of the Summons - leave to admit new evidence deposed to in his 23^rd Affirmation (“H-23”) including the medical documents exhibited thereto (“New Evidence”);

1.3.  Paragraph 3 of the Summons - stay of execution of the Orders pending determination of his appeal; and

1.4.  Paragraph 4 of the Summons - time to apply for a variation of the costs nisi be extended to 14 days after determination of his appeal.

2.The facts of this case and the reasons for the Orders are set out in the Judgment handed down on 22 July 2025, [2025] HKFC 105 (“the Judgment”). For ease of reference, I adopt the same abbreviations and definitions used in the Judgment.

3.H filed his supporting affirmation and submissions on 4 August 2025. W filed her submissions in opposition on 18 August 2025. Subsequently on 21 August 2025, this Court received a Memorandum of Notification of Application for Legal Aid with regard to H’s legal aid application. As a result of it, these proceedings were stayed for 42 days up to 2 October 2025[1]. As at today (3 October 2025), H is still acting in person without legal representation.

B.  LEAVE TO ADMIT NEW EVIDENCE

4.Paragraph 2 of the Summons for leave to admit the New Evidence is procedurally incorrect and ought to be dismissed. Admission of new evidence in an appeal is to be determined by the Court of Appeal. Such application could not be entertained until after leave to appeal has been granted: Man Lin Heung, the Administratrix of the Estate of Man Kwai Yin v 梁根林 & Ors [2019] HKCA 846; YSG (YX) v LYAG [2024] 2 HKC 201, §29.

5.Insofar as H seeks to rely on the contents and exhibits of H-23 in this application for leave to appeal, he has to demonstrate that it is reasonably arguable that the Ladd v Marshall criteria are satisfied. This will be dealt with in Section D1, §§19-22 below.

C.  LEAVE TO APPEAL – LEGAL PRINCIPLES

6.Leave to appeal should not be granted unless there is a reasonable prospect of success, or there is some other reason in the interests of justice that leave should be given: Section 63A of the District Court Ordinance (Cap.336).

7.A reasonable prospect of success involves the notion of the prospect of success must be more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011, 7 September 2011 §§8 – 9.

8.The Court retains a discretion on granting leave to appeal even if the Court takes the view that there is a reasonable prospect of success: Ho Yuen Ki Winnie v Ho Hung Sun Stanley, HCA 391/2006.

9.An ancillary relief order involves an exercise of discretion. There is a high threshold to meet in an appeal against the finding of fact or on issue involving the exercise of discretion. The appellant has to prove that the decision is plainly wrong, or that the judge made some error of law, or has taken into account irrelevant matters or omitted to have regard to relevant matters, or that the discretion was not exercised at all. Palpable errors in the judgment must be identified. The assertion that the finding of the judge 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 coming within that category. The appellate process is not designed to provide the litigants with a platform to regurgitate his submissions on the evidence and factual aspects of the case with the hope that the appellate judges may come to a different view: TAC v VDC nee VDM, HCMP 2198/2012, 5 December 2012; China Gold Finance Limited v CIL Holdings Limited, CACV 11/2015, 27 November 2015; NLC v YMF [2022] HKCA 1310, §16; Shine Grace Investment Ltd v Citibank N.A. & another [2022] HKCA 1341 §60; Salleh Abu Baker v Amway Limited [2023] HKCA 187 §§27-28; YSG (YX) v LYAG at §§27-28.

10.A party who seeks to challenge a case management decision has a high hurdle to pass. He must show that the case management decision was clearly wrong and the orders made involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that the order was irrational: Wong Kar Kee Mimi v Severn Villa Ltd & Ors [2012] 1 HKLRD 887 §31; Elijah Saatori v Raffles Medical Group (Hong Kong) Limited, HCMP 3224/2016, 13 September 2017 §40.

11.I consider the three intended grounds of appeal advanced by H in his Draft Notice of Appeal in accordance with the above principles.

D.  INTENDED GROUND 1 – ILLEGAL AND UNREASONABLE PROCEDURE

12.H raised three complaints under Intended Ground 1, namely (1) this Court proceeded to the Trials in H’s absence, (2) ZL was excluded from the proceedings, and (3) error in the process of assessment of the asset pool and the distribution.[2]

D1.  Complaint (1) - Trials in H’s Absence

13.The background facts and the reasons for proceeding to the Trials in the absence of H and ZL are set out in the Adjournment Decision dated 2 December 2024, [2024] HKFC 219 and Section B of the Judgment.

14.H did not make out any basis to justify this complaint.

15.Firstly, the decision to proceed to Trials in H’s absence was made on 4 December 2024. An appeal lodged 8 months after the decision is out of time. No reason was given for the delay.

16.H was promptly informed of this Court’s decision on his adjournment application on 2 December 2024 and the decision to proceed to Trials in his absence.

16.1.  H was given a copy of the Adjournment Decision by email on 2 December 2024, and the same was sent to ZL on the same day.

16.2.  W’s solicitors told this Court that they have notified H and ZL by email on 4 December 2024 of this Court’s decision to proceed with the Trials in their absence.

17.Secondly, there is no merits in this complaint. The case management decision to proceed to the Trials followed the principles enunciated in Law Yin Pok Bosco v Dr Chan Yee Shing, HCMP 2256/2012, 2 November 2012; Tsang Wing Kwai v Wong Wing Sze Tiffany [2019] HKCFI 2790, and was supported by reasons stated in Section B of the Judgment. H failed to identity any error in the decision.

18.This Court has already given H an indulgence in time to lodge proper medical evidence to substantiate his adjournment application. He chose not to lodge any. He did not seek any time extension in this relation.

19.Thirdly, in respect of the New Evidence, H failed to demonstrate it is reasonably arguable that the Ladd v Marshall conditions are satisfied.

20.H failed to show that the New Evidence could not have been obtained with reasonable diligence at the time of the Trials.

20.1.  Some of the documents that H seeks to adduce (e.g. the prescription of medicine) were issued on 29 November 2024 and 5 December 2024 respectively. There is no explanation as to why these documents, which exist at the time of the Trials, were not produced by H earlier.

20.2.  H has not provided any evidence to show that the medical reports dated 16 December 2024 (“December Report”) and 1 August 2025 (“August Report”) (insofar as they relate to H’s medical condition at the time of the Trials) could not have been obtained at that time with reasonable diligence.

20.3.  It bears repeating that on 2 December 2024, H was given time to produce proper medical evidence but he had not produced any, neither had he sought further time for the production.

21.The New Evidence would not have an important influence on the result of the case.

21.1.  The New Evidence does not contain the information required to justify an adjournment of the Trials and the requirements set out in §4.2 of the Adjournment Decision.

21.2.  The Sick Leave Certificates dated 29 November 2024 and 5 December 2024 as well as the December Report do not contain any evidence that H was unable to attend the Trials for medical reasons. The reference to a surgery in the December Report was unspecific as to when it should take place. There is no evidence that such surgery has been done by now.

21.3.  Only the August Report contain a statement that H was unable to attend the Trials. However, it does not state (a) any ameliorative measures could be put in place; (b) if no such measures, why not; and (c) the likely time frame for H’s recovery and attendance at the Trials.

22.Further, having considered the New Evidence, no conclusion can reasonably be reached that H was not able to attend the Trials in December 2024 and no ameliorative measure was available to enable his attendance at the Trials.

D2.  Complaint (2) – exclusion of ZL from the proceedings

23.ZL was represented by counsel at the hearing on 9 March 2023. This Court has considered the issue on service and the possibility of a short adjournment for ZL to file evidence before proceeding to W’s Joinder application against ZL. The reasons are set out in Sections C and D of the Reasons for Decision [2023] HKFC 154.

24.After this Court’s dismissal of ZL’s application for leave to appeal against the orders made on 9 March 2023 (see: [2023] HKFC 155), no further application was made by ZL to challenge the decision.

25.H purported to justify ZL’s subsequent non-appearance in these proceedings by her loss of confidence in the Hong Kong judicial system and the quality of lawyers. This is in effect an admission that ZL’s absence was deliberate.

26.ZL has not appealed against the Orders though she has taken out a Summons for stay of execution of the Orders insofar as they relate to her. The first hearing of ZL’s Summons for stay of execution was postponed to 11 December 2025 because of the stay resulted from H’s application for legal aid.

27.The allegation in this complaint (2) is wholly groundless and unmeritorious.

D3.  Complaint (3) - erred in the process of assessment of the asset pool and distribution

28.Insofar as such allegations that relate to the substantive issues raised in complaints (1) and (2), they have been considered in the above paragraphs. The other allegations made in this complaint (3) is vague, unspecific and unsubstantiated[3]. H failed to identify any palpable error in the process and procedures.

E.  INTENDED GROUND 2 - LACK OF JUDICIAL INDEPENDENCE

29.Despite H’s absence, this Court has considered his evidence and submissions, see for example §§ 15, 16, 22, 44, 47, 65, 74-75, 77, 91, 93, 102, 110-111, 115-117, 120-125, 142 and 146 of the Judgment.

30.There is no basis for the allegation of bias. A consistent and principled approach had been adopted in assessing both parties’ cases. This can be seen, for example, in the treatment of the parties’ respective claimed indebtedness at §113 of the Judgment, and the decision regarding the untaxed costs order and matters on implementation of the orders at §§186, 190, 192 and 193 of the Judgment.

31.Insofar as H is seeking to overturn the findings of fact, H failed to show that the findings, as analysed in the Judgment, were plainly wrong.

32.H alleged that this Court has obstructed him from obtaining the court records[4]. This is wholly groundless. This Court approved H’s application and made available the transcripts of the Trials for his collection since 15 April 2025. As at the date of the Judgment, H had not collected the same, see §22 of the Judgment.

F.  INTENDED GROUND 3 - WRONG FINDINGS OF FACT

33.H laboured on vague and unjustified criticisms against the findings of fact without pointing out any palpable wrong or error of law. Regurgitation of his previous allegations and arguments must be rejected.

G.  OTHER RELIEFS SOUGHT BY H

34.Given the dismissal of H’s application for leave to appeal against the Orders, his application for stay of execution pending appeal (paragraph 3 of the Summons) should also be dismissed.

35.His application for time extension to vary costs order nisi until after the determination of the appeal (paragraph 4 of the Summons) should be rejected. There is no reason to withhold making absolute the costs orders in the first instance decision. If any party considers the costs order is incorrect, they may appeal against the costs order.

H.  ORDERS

36.The Summons is wholly unmeritorious and is dismissed with costs to be paid forthwith by H to W with certificate for one counsel, and summarily assessed at HK$200,000.

Mr. Deepak Nagpal and Ms. Nicole Chan instructed by Chaine Chow & Barbara Hung, Solicitors for the Petitioner.

The 1^st Respondent acting in person.