C (Formerly Known As C) v. H

HCMP 930/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 930 OF 2012

(ON AN INTENDED APPEAL FROM HCMC 3/2011 AND HCMP 643/2012)

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Before: Hon Tang VP and Yuen JA in Court

Date of Hearing: 18 May 2012

Date of Judgment: 18 May 2012

Date of Reasons for Judgment: 31 May 2012

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REASONS FOR JUDGMENT

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Hon Tang VP:

1.On 19 December 2011, the wife issued a judgment summons against the husband in respect of maintenance pending suit ("MPS") ordered to be paid by Judge C K Chan on 13 August 2010 ("the MPS order"). On 8 March 2012, the husband applied to vary the MPS order.

2.This application for leave to appeal concerns the order of Poon J given on 9 March 2012 that the husband's summons for variation of MPS ("the variation summons") be heard at the same time as the judgment summons and in open court.  Poon J has refused leave to appeal. 

3.On 9 May 2012 the husband applied to us for leave to appeal insofar as Poon J's order required the hearing of the variation summons to be heard in open court. 

4.We heard the application for leave on 18 May 2012.  We have given leave to appeal and allowed the appeal.

5.The Practice Directions[1] is clear that all applications under the Separation and Maintenance Orders Ordinance (Cap 16) except judgment summonses would usually not be open to the public, because:

"… it is considered that having regard to their nature, one or more of the reasons for excluding the press and the public laid down in Article 10 of the Hong Kong Bill of Rights Ordinance, Cap. 383 … are usually satisfied."

6.On the other hand, unless the exceptions listed in Order 52 rule 6 apply[2], judgment summonses are to be heard in open court.

7.The learned judge ordered that the judgment summons and the variation summons to be heard in open court because he took the view that C v C [2003] 4 HKC 141 was authority that they should be heard together and in open court. 

8.In C v C and A,the Family Judge dealt with 3 matters together and in chambers: (1) the petitioner's claim for ancillary relief; (2) the application by the respondent, who appeared in person, for variation of the order for maintenance pending suit; and (3) the petitioner's judgment summons.

9.On appeal, Ma JA (as he then was) said in his judgment (with the concurrence of the other members of the court):

"46(2)  … Judgment Summonses, like all other committal proceedings, should be heard in open court. …"

10.And that the judgment summons should not be heard together with the application for ancillary relief because of their disparate nature, and went on to say:

"46(1)  … it must be wholly exceptional for a committal application to be heard at the same time as any other substantive application. …"

which was "wrong as a matter of principle and practice".

11.However, Ma JA also expressed the view that in a suitable case, a judgment summons may be heard together with an application for variation in open court.  He said:

"47.      I mentioned in paragraph 46(1) above that there was an exception to the general principle that judgment summonses should not be heard at the same time as other substantive applications. In the present case, it will be recalled that the learned judge had before him an application by the respondent for variation of the maintenance pending suit order.  This application, made under s 11 of the Matrimonial Proceedings and Property Ordinance (Cap. 192), would normally be heard in chambers although this is subject to a specific direction otherwise: see r 81(2) of the MCR. 

48.       In many cases (of which the present case is one) where a judgment summons and an application for variation are really both sides of the same coin, it would be convenient and right that they be heard together in open court.  Afterall, in r 87(5)(a)(ii), it is expressly envisaged that in determining a judgment summons, the court may vary a maintenance pending suit order.  This was precisely what was done by the District Court in G v S."

12.In Laing v Laing [2007] 2 FLR 199 Sir Mark Potter expressed similar views at page 207 that:

"… it is the clear message of Corbett v Corbett [2003] EWCA Civ 559, [2003] 2 FLR 385 that it is preferable for an application to vary a periodical payments order and (if appropriate) remit arrears, to be heard prior to or together with the adjourned hearing of any judgment summons. …"

13.Ms Anita Yip (leading Mr Eric Leung) for the wife has referred us to Matrimonial Causes Rules (Cap 179A) rule 87(5)(a)(ii) which provides that on the hearing of a judgment summons, the court may vary or suspend a MPS order, "if the judgment debtor had made an application for that purpose".  In my view, the rule shows the amplitude of the court's power on the hearing of a judgment summons, but it does not support Ms Yip's submission that a variation summons should ordinarily be heard with a judgment summons and in open court.  C v C and A,and Laing v Laing are clear authorities that in a suitable case, they may be heard together in open court, but they are not authority that ordinarily they should be heard together in open court.

14.Indeed, L v L [2001] 1 HKLRD 150 (Leong and Le Pichon JJA and Cheung J) supports the view that ordinarily the judgment summons should be dealt with in open court after the variation summons had been dealt with in chambers. 

15.That this is so, is further supported by the Family Court Practice issued by the Law Society:

"12. Judgment Summonses in the Family Court (May 2009)

(a)  Hearings

The Court of Appeal has declared the Family Court practice of hearing applications for ancillary relief and judgment summons together in a single hearing to be wrong as a matter of principle and practice.  Members should review the following judgments:

C v C and Another (CACV 272/2002)

and

L v L (2001 1 HKLRD 150)

The practice of most of the Family Judges now is to deal with and make decision on the variation summons in chambers first, and that thereafter the matter will be stood down to give the parties time to reconsider their positions.

The Judge will then robe and proceed to deal with the Judgment Summons in open court.  If the Judge needs to reserve decision on the variation application, then the Judgment Summons will be adjourned to another day for an open court hearing."

16.I have no doubt that such "practice of most of the Family Judges" (the Practice) is the correct practice and should be followed unless there are compelling reasons otherwise.

17.Ms Yip submitted that we should not interfere with Poon J's decision in a matter of case management.  However I believe the learned judge ordered the judgment summons and variation summons to be heard together in open court because he felt that C v C and A required both summonses to be heard together and in open court.  This is not a case where the judge had exercised his discretion according to the facts of the case.

18.In the circumstances of this particular case, I see no reason why we should depart from the practice.  That is why I gave leave to appeal and have allowed the appeal with costs.

Hon Yuen JA:

19.I agree.

Mr David Pilbrow, SC instructed by Tso Au Yim & Yeung for the Respondent

Ms Anita Yip & Mr Eric Leung instructed by C T Chan & Co for the Petitioner