Tl v. Sn

CACV 196/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 196 OF 2009

(ON APPEAL FROM FCMC NO. 14325 OF 2006)

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BETWEEN

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Before: Hon Hartmann JA and Kwan JA in Court

Date of Hearing: 9 December 2010

Date of Ruling: 9 December 2010

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Hon Hartmann JA:

Introduction

1.The parties to this matter were at one time husband and wife.  There is one child of their marriage, a daughter born in February 2002.  In late 2006, the petitioner, the wife, instituted divorce proceedings against the respondent, her then husband, seeking among other things ancillary relief for herself and the daughter.

2.In July 2008, judgment was given in the Family Court on the issue of ancillary relief.  The petitioner, the wife, appealed a number of findings and/or orders contained in that judgment.  

3.In a judgment handed down on 19 October of this year, this Court determined the wife’s appeal.  We were both members of the court.

4.The respondent, the husband, now seeks to appeal the judgment of this Court to the Court of Final Appeal.  It is his assertion, however, that he no longer has sufficient funds to prosecute the appeal and for that reason he has made application to the Director of Legal Aid for financial assistance.

5.Section 15(3) of the Legal Aid Ordinance, Cap. 91, provides that, when a party to a legal action seeks legal aid to prosecute an appeal, the Director of Legal Aid shall as soon as practicable notify both the other party to the action and the court against whose judgment an appeal is sought.  That notice has been given.

6.Section 15(4) of the Ordinance, read with Reg. 7A of the Legal Aid Regulations, provides that, when such notification is given, then, unless otherwise ordered by the court against whose judgment the appeal is sought, all proceedings shall be stayed for a period of 42 days.  The purpose of that stay is to enable the officers of the Legal Aid Department to consider the application and, if it is granted, to arrange for legal representation.

7.In accordance with the provisions of the Ordinance, the 42-day stay is automatic unless the court – the court in the present instance being this Court – determines otherwise.

8.Pursuant to a summons filed on 19 November of this year, the petitioner, the wife, has asked this Court to exercise its discretion by ordering that there shall be no stay.  In short, she seeks an order that the husband must file his notice of motion seeking leave to appeal to the Court of Final Appeal without further delay even if it means that he must do so without the benefit of legal assistance.

9.The wife, who herself appears without the benefit of legal assistance, has sought a number of other orders.  In the main, these arise out of this Court’s judgment handed down on 19 October.  These other orders may be described as follows:

1. that the husband shall immediately pay into court a sum of $1.5 million, an amount of $1 million of that sum to be released by the court to the wife;

2. that the husband shall pay the full amount of maintenance for the wife and child ordered by the court;

3. that the husband be stopped from incurring any further debts, including legal debts, until such time as all arrears of maintenance have been paid, and

4. that the husband shall provide a history of the legal costs incurred by him.

The current position of the parties

10.The husband is no longer residing in Hong Kong.  Although he has filed no evidence on the matter, we understand his case to be that his business interests in Hong Kong have collapsed, that he is now bereft of assets and that he has returned to Israel, his home country, to attempt to rebuild his life.

11.Until the 7^th of this month, the husband was legally represented.  However on that date he filed a notice to act in person, giving his address for service in Israel.

12.In a letter accompanying the notice to act in person, the husband’s former solicitors conveyed the husband’s wish that the 42-day stay, which is due to expire on the 22^nd of this month, not be uplifted or reduced.  In the letter, the solicitors also said the following:

“Our client has asked us to convey to this Honourable Court his concern that, since the petitioner has now secured a prohibition order against him in the court below [the Family Court], it is impossible for him to return to Hong Kong to appear at the hearing of 9 December 2010 [the hearing which is the subject of this ruling], or come here to see his daughter. He advises us that he is afraid that if he returns to Hong Kong he will not be able to leave as a result of a prohibition order, which means he would be in Hong Kong, without a job, income, or assets, and would thus be rendered destitute."

13.The wife’s position is that the irresponsible actions of the husband in refusing, other than in the meanest of ways, to meet his financial obligations to her and to the daughter of the marriage has placed them both in a parlous financial state, close to destitution.

Should the stay be uplifted?

14.The memorandum of notification was issued by the Director of Legal Aid on 10 November 2010.  Accordingly, as we have said, the stay will expire in any event on the 22^nd of this month in less than two weeks time.

15.The ancillary relief litigation has been long and complex.  There are a number of profound conflicts of fact.  For the Director to determine whether legal aid should be granted is no easy matter.  This is a case, in our view, where, all else being equal, a stay of 42 days is justified.

16.It is the wife’s submission, of course, that all else is not equal.  She speaks of the husband playing for time, stringing out the proceedings and doing so to her direct prejudice.  But we do not see that by allowing the stay to run its full length that fact alone will cause real prejudice to the wife.  It only has another ten days or so to run.  In light of the current circumstances, little of moment can take place in that time.  We therefore decline to uplift the stay or reduce its term.  It will run the full 42 days.

The other orders sought by the wife

17.The wife seeks an order that the husband shall continue to pay the full amount of periodic maintenance for herself and the daughter of the marriage.

18.But, as the wife herself has acknowledged, the orders for maintenance were not challenged on appeal.  They remain in force and the husband is under a legal obligation to make payment in terms of those orders.

19.The stay does not isolate the husband from all his obligations under the judgments handed down by the Family Court and by this Court.  For the avoidance of ambiguity, it must be said that if the husband wishes to suspend payment of any of his obligations created by the two judgments then he must seek appropriate directions from this Court.  It is for him to do it, not for the wife to seek some sort of secondary order of enforcement.

20.As for the order sought by the wife that the husband pays $1.5 million into court, that application is premature.  First, the husband’s grounds of appeal must be understood.  The indications are that the capital sums ordered to be paid to the wife will be the central subject of any appeal.

21.The wife seeks an order that the husband ceases incurring debts, including legal debts, until all arrears of maintenance are paid.  Such an order is not possible, certainly not when couched in such general terms.  A specific intended disposition, once identified, may be made the subject of an order but not all debts generally.  As for legal debts, as we have said the husband is now representing himself.  It is also to be remembered that the issues before this Court at this time concern the husband’s intended appeal, they are not, as yet, issues of enforcement which have their own routes and procedures.

22.To repeat, therefore, we decline to uplift the stay or reduce its term.

Petitioner/Appellant, in person (present)

Respondent/Respondent, in person (absent)