Ng Yee Wah v. Lam Chun Wah and Another

HCMP 797/2008 AND 798/2008

HCMP 797/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS no. 797 of 2008

(ON AN INTENDED APPEAL FROM HCA NO. 3349 OF 2003)

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AND

HCMP 798/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 798 OF 2008

(ON AN INTENDED APPEAL FROM HCMC NO. 3 OF 2005

AS TRANSFERRED FROM FCMC NO. 3038 OF 2003)

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Before: Hon Rogers VP in Chambers

Date of Hearing: 13 May 2008

Date of Decision: 13 May 2008

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D E C I S I O N

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1.These are applications for leave to appeal two consent orders.  One was made by Hartmann J on 1 November 2005, and the second was made by Master Hui on 28 December 2005.

2.The major basis upon which these applications are made is that the consent orders were made under duress.  I have been shown the correspondence upon which that is said to have been made.  In my view, and I say no more at this stage, this simply does not amount to duress.

3.The complaint, really, of the husband is that he is being run around by his former wife whom, the papers indicate, is probably of substantial means in her own right and therefore can afford to do so.  She has now brought a second derivative action, the first derivative action having been settled by one of the consent orders by Master Hui.  It is said that that the husband may not be able to have the second derivative struck out because the matters of complaint in that arose after the first derivative action was started.  I will leave that matter there.

4.The major complaint seems to be, on the part of the husband, that the wife has not complied with the consent orders.  If that be right, there are many routes for remedy which the husband would have, but applying for leave to appeal against the consent orders does not appear to me to be a very fruitful course to take.  Apart from anything else, the facts would have to be gone into, which is not a matter which the Court of Appeal can do of its own motion, nor does it have original jurisdiction.  That is far better done by a judge at first instance.

5.In my view, these are not suitable cases for leave to appeal and I refuse the leave to appeal.  I have done so in chambers rather than in open court so that, if the husband feels aggrieved about this, he can renew his application before two judges.  That is a matter for him.

Mr David W K Tang, instructed by Messrs Pansy Leung Tang & Chua, for the 1st Defendant in HCMP 797/2008 and the Respondent in HCMP 798/2008/ Applicant