MHM aka HRM v. MJW

FCMC 2427/2022

[2023] HKFC 23

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 2427 OF 2022

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Judgment
( Leave to Appeal – paper disposal)

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1.  This is the Respondent’s application for leave to appeal against my decision made, ex tempore, on 14 October 2022.

BACKGROUND

2.  The Petitioner and the Respondent were married on 18 June 2008. In 2014, the Petitioner gave birth to the daughter (“the Daughter”). On 25 April 2022, the Petitioner filed the petition for divorce citing unreasonable behaviour.

3.  On 29 April 2022, the Petitioner filed an inter-parte summons seeking, inter alia, an order from the court to allow the Daughter to attend an online school interview with an ESF school (“the ESF School”). The hearing of the summons was fixed for 5 May 2022.

4.  On the day of the hearing, the Respondent strongly opposed the summons. After parties had a chance to discuss matters, they ultimately consented to an order being made allowing the Daughter to attend the online interview, subject to a number of undertakings given by the parties.

5.  On 7 June 2022, the court received a memorandum from the Director of Legal Aid informing the court the Respondent made an application for legal aid. The court granted a 42-day stay on the same day.

6.  On 13 June 2022, the Petitioner filed another summons this time seeking, inter alia, an order that the Daughter be permitted to enrol into the ESF School (“Enrolment Summons”). The directions hearing of the Enrolment Summons was fixed to be heard on 30 June 2022.

7.  On 27 June 2022, the Petitioner filed a summons seeking to lift the legal aid stay (“Legal Aid Stay Summons”). The directions hearing of this summons was fixed to be heard on the same day as the directions hearing of the Enrolment Summons. Up until this point, the Petitioner had all along been represented by Messrs. CRB.

8.  At the directions hearing of the Enrolment Summons and the Legal Aid Stay Summons on 30 June 2022, the Petitioner acted in person. After hearing the parties’ submissions, I gave various directions including lifting of the legal aid stay for the limited purposes of hearing the Enrolment Summons and the calling of a Social Investigation Report.

9.  Due to the urgency of the Petitioner’s application, I fixed the summons for argument to be heard on 14 October 2022.

10.  On 12 October 2022, the court received a memorandum from the Director of Legal Aid informing the court the Respondent has made another application for legal aid. I directed that the issue of the legal aid stay be dealt with at the hearing of 14 October 2022. On the same day, that is 12 October 2022, the Respondent filed a summons asking to “delay [sic] October 14^th 2022 hearing so as to respect my Basic Law Art. 35 Rights.” The summons was fixed to be heard on the same day as the argument hearing of the Enrolment Summons.

11.  On 14 October 2022, I dismissed the Respondent’s summons by allowing the legal aid stay to be lifted and allowed the Petitioner’s application to have the Daughter enrolled in the ESF school. Reasons for the decision were given ex tempore on the same day.

GROUNDS OF APPEAL

12.  The Respondent’s grounds of appeal as per the draft grounds of appeal filed on 14 October 2022 are, as far as possible, summarized as follows:

1)  Appeal on the lifting of the Legal Aid stay.

a)  “[The] Learned Judge never answered [the] Respondents [sic] questions about whether a Supremacy Clause exists in Hong Kong Law, such that rights enumerated in the Basic Law supersede [sic] ordinances and ordinances issued by LegCo and pre-Handover legislation. The case law on record is wrong if it arrives at a conclusion that the bylaws of a 1970’s ordinance, written before the Basic Law, vacate enumerated rights in the city’s first ‘mini-Constitution’.”

b)  The decision violates Article 35 of the Basic Law.

2)  Appeal on the order to permit the Daughter to enrol in the ESF School:

a)  The judge “unfairly and unreasonably limited the scope of both the case and the Social Investigative [sic] Report to overwhelmingly favour the Petitioner.”

b)  The judge did not “make any acknowledgement” of “pre-existing family plans”.

13.  Other points raised in the Draft Grounds of Appeal that are more properly classified as arguments or comments have not been set out above. Though they have not been set out, I have nevertheless considered them in my decision.

THE LAW

14.  Section 63A(2) of the District Court Ordinance provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

15.  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.

16.  In Ho Yuen Ki Winnie and anor v Ho Hung Sun Stanley and anor, HCMP 1009/2009, (unrep), Le Pichon JA stated at paragraph 16 of the judgment: -

“For leave to be granted, this court must be satisfied that the appeal has ‘reasonable prospects of success’. Merely showing that the appeal is ‘arguable’ and ‘not fanciful’ would not be sufficient. In my view, ‘reasonable prospects’ requires something more and, in that regard, some assistance may be derived from the test applied when setting aside a default judgment.”

17.  In KNM v HTF, HCMP 288/2011, (unrep), Fok JA (as he then was) stated at paragraph 9: -

“The relevant test of whether an appeal has a reasonable prospect of success under section 63A 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’”.

(See also the case of SMSE v KL [2009] 4 HKLRD 125)

18.  In so far as the family court is tasked with considering matters relating to the child of the family, it is trite that the court must have the best interests of the child as the first and paramount consideration. See also section 3 Guardianship of Minors Ordinance (Cap 13).

LIFTING OF THE LEGAL AID STAY

19.  The legal aid stay is set out in section 15(4) of the Legal Aid Ordinance which reads as follows:

Where any memorandum is so filed, then, unless otherwise ordered by the court in which the memorandum is filed, all proceedings in the action or in the appeal or in both the action and the appeal shall, by virtue of this section, be stayed for such period, being not less than 14 days, as may be prescribed, and during such period (unless otherwise ordered by any such court) time fixed by or under any law or otherwise for the doing of any act or the taking of any step in the proceedings shall not run. (Amended L.N. 16 of 1991)

20.  The legal aid stay is not absolute and can be lifted by an order of the court.

21.  In the case of Bank of China (Hong Kong) Limited v Fu Ming Kong Michael and another, HCA 7769/2000, (unrep), 24 June 2005, Recorder Kwok SC stated the following at paragraphs 26 and 27 of his judgment:

“26. The purpose of the statutory stay under section 15 of the Legal Aid Ordinance is to allow sufficient time:-

(a) for the Director to process an application for legal aid; and

(b) in the event of legal aid being granted, for the assigned lawyer(s) to effectively represent the assigned client, and, where appropriate, to apply for more time.

27. The statutory stay is an aid in, not an obstacle to, the administration of justice. It does not mean that a defendant has the right to abort the trial of an action by making a fresh application for legal aid on the eve of every set of dates fixed for the trial of the action.”

22.  In the case of CMT v AS, FCMP 219/2007, (unrep), 28 May 2008, HHJ Chu (as she then was) stated the following:

“4. . . . Normally, under section 15 of the Legal Aid Ordinance, there will be an automatic stay of 42 days unless otherwise ordered by the court. In relation to this, I would quote from what Mr Recorder Kwok has said in a case Bank of China Hong Kong Limited v Fu Ming Kong Michael & Another. It is a High Court action, 7769 and 3909 of 2000:

“The purpose of the statutory stay under section 15 of the Legal Aid Ordinance is to allow sufficient time: (a) for the Director to process an application for legal aid and, secondly, in the event of legal aid being granted, for the assigned lawyer to effectively represent the assigned client, and where appropriate, to apply for more time. The statutory stay is in aid of, not an obstacle to the administration of justice.”

5. Furthermore, the Court of Appeal in the case of Lee Shiu Ming v Yeo Hiap Seng (Hong Kong) Limited CACV 39/1993 (unreported, 14 July 1993) has set out the principles for the court’s guidance when considering whether to lift the legal aid automatic stay. The guiding principle is to do what is fair and just between the parties. Yuen J, as she then was, also summarised the position in Re Ip Lai Fan v Ip Lam On HCSD/0111/2000 (unreported, 3 November 2000). This is another case. She summarised what Nazareth has said in the Lee Shiu Ming’s case as:

“The court should be slow to lift a stay before an application for legal aid is determined, especially if a point of law had to be dealt with by a layman. However, if a court was satisfied that the application for legal aid was an abuse of process, then the court should exercise the discretion to lift the stay.”

. . .

9. There is no complicated law involved in an application for interim maintenance. This court is mainly concerned with the reasonable needs of the Applicant and the child and the Respondent’s ability to pay. The judge usually at this stage adopts a broad-brush approach. There is no detailed investigation and if there is any further information, it is also open to the parties to apply for variation, which means that even if the court were to make an order today, if the respondent were indeed assigned lawyers in future and his lawyers were of the view that certain information had not been put before this court, he could apply for a variation.

10. Thus, having considered all the circumstances, I am not allowing any adjournment since I think it is fair and just for the application to go through.”

23.  I had set out my reasons for refusing the Respondent’s summons for adjournment and for lifting the legal aid in my ex tempore decision, which I do not intend to repeat in full.

24.  I repeat the salient facts surrounding the Respondent’s legal aid application (of which I had recounted in my decision):

1)  The issue of schooling came before this court as early as 5 May 2022 when the Petitioner made an application for leave to allow the Daughter to attend the ESF School interview. Though the parties ultimately arrived at an agreement at the hearing, the application was initially hotly contested by the Respondent.

2)  The Daughter was offered a placement in the ESF School and pursuant to a letter issued by the school on 24 May 2022, the offer was only valid for 6 months. At the hearing in October 2022, the parties confirmed they were aware the Daughter’s enrolment offer will expire on 31 October 2022.

3)  According to the documents annexed to the Respondent’s submissions and as further confirmed in his oral submissions on 14 October 2022, the Respondent was offered legal aid on 25 July 2022. There is no dispute the Respondent failed to answer positively to the offer thereby causing legal aid to issue a refusal on 19 September 2022.

4)  The Respondent explained he failed to take up the offer because the Director of Legal Aid required him to make a contribution of HK$41,424 of which he was unable to pay. The Respondent further confirmed, at the hearing on 14 October 2022, that if he was offered legal aid again but on the same condition of a HK$40,000+ contribution, he would not be able to pay. He claimed he was advised by the Director of Legal Aid to re-lodge an application instead of making an appeal.

25.  In arriving at my decision, I had considered a number of authorities. In particular, I considered the cases of Bank of China (Hong Kong) Limited v Fu Ming Kong Michael and another, HCA 7769/2000, (unrep), 24 June 2005, and CMT v AS, FCMP 219/2007, (unrep), 28 May 2008.

26.  In summary, in considering whether the hearing should be adjourned and whether the legal aid stay should be lifted, I considered the following:

1)  The Respondent was clearly aware of his right to seek legal representation. In setting down the argument for the Petitioner’s application, I urged the Respondent to seek legal representation in good time before the hearing. Moreover, I gave ample time for the Respondent to file the necessary documents so that, in the event the Respondent instructed legal representatives, his legal representatives would have sufficient time to comply with my directions.

2)  The Petitioner’s application is not a complicated application that involves difficult points of law. The Respondent was given an opportunity to make his views known through an affirmation in opposition, but chose not to file the same.

3)  The Respondent’s application for adjournment and his argument on the legal aid stay relates to his second legal aid application. The Respondent made his first application for legal aid in good time and was offered legal aid on 25 July 2022. However, he did not accept the offer of legal aid. At the hearing of 14 October 2022, the Respondent inform the court that he would be unable to pay the sum of contribution if legal aid was offered on the same terms. He insisted he was impecunious. Hence in assessing whether any further adjournment would result in the Respondent being legally represented, I was of the view it was unlikely the Respondent would be in a position to accept the legal aid offer even if the Director of Legal Aid renewed his offer of legal aid.

4)  The Enrolment Summons application was urgent as the deadline for accepting the offer was 31 October 2022. If the application was not decided before then, the Daughter would lose the placement offer.

27.  Hence in balancing the above matters, and the interests of the Daughter, I was of the view it was appropriate to lift the legal aid stay for the limited purposes of dealing with the Enrolment Summons and to refuse the Respondent’s adjournment summons.

28.  In so far as the Respondent argued his rights under the Basic Law were violated, I set out the wording of Article 35 of the Basic Law as follows:

“Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies.

Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.”

29.  Article 35 BL seeks to protect the right of access to courts and legal representation. It does not operate to guarantee that each litigant must be legally represented. If a litigant has exercised his right to seek legal representation, but for reasons of his own circumstances or of his own choice, he fails to secure legal representation, the fact that he is then unrepresented cannot be said to be a violation of Article 35 BL.

30.  In my decision, I explained I was of the view there was no violation of Article 35 of the Basic Law for the following reasons:

Legal aid was clearly offered in good time and had the Respondent taken up the offer, he would have had legal representation and his legal advisers would have had ample time to prepare for his representation. Though the Respondent is not being criticized for failing to accept the offer, the fact is he was offered representation and for his own reasons has failed to exercise his right.

31.  In so far as the draft ground of appeal of which I have quoted at paragraph 12(1)(a) hereinabove is concerned, this argument was not raised at the hearing of 14 October 2022. Moreover, it is unclear what the Respondent’s argument is on this intended ground of appeal. It is unclear if he is arguing the constitutionality of the s.15(4) Legal Aid Ordinance in so far as it permits the court to override the mandatory legal aid stay or is merely asking the court to distinguish all cases that have rule in favour of lifting the legal aid stay.

32.  Regardless of what the Respondent’s argument on this ground may be, the fact is the Respondent was aware of and had exercised his right to legal representation by making an application for legal aid. I fail to see how the Respondent can argue with any force his right to legal representation has been violated if he chooses to reject the legal aid offer, and, despite having almost a month’s time before the hearing to find himself legal representation, does not arrange for legal representation.

33.  Having considered the draft grounds of appeal and the Respondent’s written submissions, I fail to see any prospects of success on the draft grounds of appeal relating to the refusal of the adjournment and the lifting of the legal aid stay.

LEAVE TO ALLOW THE DAUGHTER TO ENROL IN THE ESF SCHOOL

34.  In so far as the Respondent claims I had limited the scope of the Social Investigation Report, I set out the direction I made on 30 June 2022 below:

“Social Investigation Report in English regarding custody, care and control and access, and schooling be called for and be filed with the court no later than 14 days before the next hearing.”

35.  I therefore fail to see any merit in this ground of appeal.

36.  In so far as the Respondent claims the court had not considered “pre-existing family plans”, I note the Respondent deliberately chose not to file an affirmation in opposition but instead filed lengthy submissions on the Petitioner’s application.

37.  In my decision, I made it clear that I nevertheless considered the objections raised by the Respondent, including his allegation that there had been “family plans” to move to the USA. This has been set out in my ex tempore decision.

38.  I gave my reasons for allowing the Petitioner’s application for enrolment as follows:

I have considered the parties’ submissions, the authorities cited, the evidence before me and the SIR [Social Investigation Report] recommendations.

The Respondent has submitted a number of reasons why he objects to the application. However, I note the Respondent has failed to file any affirmation in opposition despite the specific directions I gave on 30 June 2022.

Given the Respondent is unrepresented, I have nevertheless considered his objections to the application albeit he has failed to file an affirmation in opposition. I shall not repeat all of his submissions. Suffice to say I have considered them. I shall only deal with the salient submissions made.

In summary the Respondent believes the Petitioner has not been forthright in her plans with the child and is acting without a long term plan to the child’s needs. He believes that it is not in the best interests of the child to keep changing schools and claims that the child has switched schools frequently in the past few years. When asked what he meant by proper plans, the Respondent was vague. From what the court can gather, the Respondent seems to believe that there should be plans made as to whether in fact the child is to stay in Hong Kong or should be moved to the US.

Though I agree a child’s education should not be disrupted unnecessarily or frequently, the present child’s situation is one in which calls for immediate attention.

It is clear from the evidence filed by the Petitioner and the SIR [Social Investigation Report], the daughter is having difficulty with the Chinese language, which is a compulsory course in her current school. According to the SIR [Social Investigation Report], the daughter is not only struggling with the language, but she is reluctant to learn it and therefore has not been able to improve. The Social Investigation Officer clearly opined the daughter would benefit from a school “with inquiry-based and exploratory learning environment and with English as the medium of teaching.” The officer also clearly stated, “Apparently the current local school focusing on homework and textbooks teaching mode was not fit . . .” for the child.

I note these observations are consistent with the Petitioner’s observations.

I am of the view that having reviewed all matters before me, it is in the child’s best interests to transfer to the ESF school. No doubt the child should receive education in a language in which she is comfortable and competent in. To do so otherwise would cause a significant obstruction and hindrance in her education and her long term development.

I therefore allow the Petitioner’s application and permit the child to transfer to the designated ESF school in the upcoming school term, or as soon as permitted by the ESF school.

39.  I see no merits and no reasonable prospects of success in the Respondent’s draft grounds of appeal on the decision to allow the Daughter to enrol in the ESF school.

OTHER REASONS THAT APPEAL SHOULD BE HEARD

40.  I have considered whether there is some other reason in the interests of justice why the appeal should be heard. I find there are none.

SUMMARY

41.  By reason of the matters set out above, I dismiss the Respondent’s application for leave to appeal. I see no reason why the Respondent should not bear the costs of his unmeritorious and unsuccessful application.

42.  I make a costs order nisi that the costs of the Respondent’s application for leave to appeal be paid by the Respondent to the Petitioner, to be taxed if not agreed. Unless any party applies to vary the costs order nisi within 14 days hereof, the costs order shall become an order absolute.

Representation: