Tpl v. Wyy Formerly Known As Wyy

HCMP 316/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 316 OF 2013

(ON AN INTENDED APPEAL FROM FCMC NO. 15332 OF 2011)

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BETWEEN

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

1.By his judgment dated 3 October 2012, following a trial before him in custody proceedings, Deputy District Judge S. Lo granted joint custody of the parties’ two children to the petitioner (mother) and the respondent (father) and ordered that care and control of the children be to the mother with defined access to the father as specified.

2.As to costs, the Deputy Judge made an order nisi that the costs of and incidental to the custody application be to the mother, including all reserved costs, to be taxed if not agreed.

3.By summons dated 31 October 2012, the father applied to the Deputy Judge for leave to appeal against the Deputy Judge’s order in relation to the care and control of the children and also applied to vary the costs order nisi.

4.By his Decision dated 29 January 2013, the Deputy Judge refused leave to appeal and also dismissed the application to vary the costs order nisi which was accordingly made absolute.

5.By summons dated 14 February 2013, the father has renewed his application for leave to appeal against the care and control order to this Court and seeks the grant of leave to appeal against the costs order.

6.The threshold for the grant of leave to appeal under s. 63A(2) of the District Court Ordinance is that the proposed appeal has a reasonable prospect of success, alternatively there must be some other reason in the interests of justice why the appeal should be heard.  The relevant test of whether an appeal has a reasonable prospect of success 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”.

7.The renewed summons for leave to appeal annexes a draft notice of appeal setting out the proposed grounds of appeal.  It is supported by a skeleton submission of the father dated 14 February 2013.  The mother has not served a statement in response under RHC O.59 r.2A(4).  The Court of Appeal may, pursuant to O.59 r.2A(5)(a), determine the application without a hearing on the basis of written submissions only and we consider it appropriate to do so in the present case.

Application for leave to appeal against grant of care and control to mother

8.The sole basis of the application to appeal against the grant of care and control to the mother is a Supplemental Report of Dr Lynette Levy, a child psychologist who assessed the son, which was prepared on the basis of questions put to her in writing and which was admitted by the parties as part of her evidence at the trial.

9.The draft grounds of appeal restate, in a slightly different form, two of the proposed grounds of appeal put before the Deputy Judge when he was asked to grant leave to appeal.  The crux of the complaint (ground 2) is that the fact that Dr Levy could not conclude that the son’s anxiety is due to the alienation of the mother is inconsistent with the Deputy Judge’s findings that the mother made mistakes and that the root of the parties’ problems partly stems from the mother’s family members.

10.The Deputy Judge addressed that contention in his Decision at paragraphs 20 to 23.  For the reasons there stated, with which we respectfully agree, we do not consider there is any merit in this proposed ground of appeal.

11.As for the more general complaint that the Deputy Judge failed to have proper regard to Dr Levy’s Supplemental Report (ground 1), we consider this is simply a complaint as to the weight attached by the Deputy Judge to that particular piece of evidence.  The weight to be given to that report was a matter for the Deputy Judge and we are not satisfied there is any substance in the proposed ground of appeal.

12.We would add that the additional complaint raised in the father’s skeleton submission that the Deputy Judge erred in shifting the burden to the father regarding Dr Levy’s assistance to the court is artificial and without merit.  Furthermore, the arrangements for Dr Levy to provide evidence further to her first report by way of answering written questions from the parties in her Supplemental Report was a matter of case management for the Deputy Judge and there is no basis for suggesting there was any error in the manner in which her evidence was put before the court.

13.Accordingly, we refuse leave to appeal against the Deputy Judge’s order in relation to the care and control of the children.

14.Further, since we consider that the application for leave to appeal that part of the order is totally without merit, we make an order pursuant to RHC O.59 r.2A(8) that no party may request this determination to be reconsidered at an oral hearing inter partes.

Application for leave to appeal against costs order

15.However, in respect of the application for leave to appeal against the costs order, we are satisfied that the proposed appeal meets the relevant threshold of having a reasonable prospect of success and we grant leave to appeal accordingly.

Costs of this leave application

16.Where leave is refused on the papers only, the usual consequence is that the losing party will be ordered to pay the costs of the application for leave to appeal and those costs will be assessed summarily.

17.Since the mother did not file written submissions on the application for leave to appeal in respect of the care and custody order, it is not clear whether she will have incurred any costs in this respect.

18.In the circumstances, we order that the costs of the application for leave to appeal against the care and custody order (if any) are to be paid by the father to the mother, to be taxed if not agreed.  The mother’s own costs (if any) are to be taxed in accordance with the Legal Aid Regulations.

19.As for the costs of the application for leave to appeal against the costs order, such costs will be costs in the cause of the appeal.

20.For the assistance of the taxing master in due course in the event it is necessary to apportion the costs of this application for leave to appeal against the care and custody order on the one hand and the costs order on the other, we would apportion 50% of such costs to each of those matters.

Written submissions by Mr Felix Li, instructed by Chaine, Chow & Barbara Hung, for the Respondent/Applicant