WKI v. CKW

CAMP 11/2024, [2025] HKCA 709

On appeal from [2023] HKFC 190

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 11 OF 2024

(ON AN INTENDED APPEAL FROM FCMC NO 11528 OF 2019)

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J U D G M E N T

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Hon Anthony Chan J (giving the Judgment of the Court)  :

Introduction

1.  This is a renewed application for leave to appeal by the Respondent (“Husband”)  against the decision of DDJ J Chow (“Judge”)  dated 28 September 2023[1] (“Judgment”), which held that the outstanding interim child maintenance ordered by DDJ M Lam on 1 April 2021 is due and owing to the Petitioner (“Wife”).

2.  Having considered the papers, we have decided to exercise our power under Order 59 rule 2A(5)  of the Rules of the High Court (Cap 4A)  to determine this application without an oral hearing on the basis of written submissions only.

Background

3.  On 25 September 2019, the Wife filed a divorce petition against the Husband.  On 1 April 2021, DDJ M Lam ordered the Husband to pay interim child maintenance to the Wife with the following terms:

“AND UPON the Petitioner’s undertaking to produce documentary proof of the increment of the monthly tuition fee of the child to not less than HK$16,000 after 1^st September 2021 within 7 days from the date hereof;

IT IS ORDERED THAT:-

1. ……

2.   The Respondent do pay the Petitioner interim monthly maintenance payment of HK$12,000 for the benefit of the child of the family commencing on the 1 May 2021 and thereafter on the first day of each month until the 31 August 2021.  Commencing from the 1 September 2021, the monthly payment be increased to HK$14,000 and continues to be paid on the first day of each month until further order of the Court.”

4.  The Husband did not pay interim child maintenance to the Wife since 1 May 2021, arguing that she had breached the undertaking by (i)  failing to produce documentary proof that showed increment of school fees to HK$16,000 and (ii)  failing to serve the proof of increment on him within 7 days from the order and state clearly how the proof was served.  The Wife took out a judgment summons for outstanding interim child maintenance and a summons for arrears of interim child maintenance over 12 months. 

5.  On 28 September 2023, upon considering the written submissions of the parties, the Judge held that the Husband was obliged to pay interim child maintenance to the Wife as the undertaking stood on its own and that the tuition fee being HK$15,980, i.e., HK$20 short of HK$16,000, was immaterial.  As to the service of the proof of increment, the Judge was not persuaded that the Husband was prejudiced as he could check the most update/revised level of tuition fees on the school webpage.  The Judge considered that the parties should narrow down disputes and focus on the main suit.

6.  On 12 October 2023, the Husband applied for leave to appeal against the Judgment.  Upon considering the grounds relied on by the Husband, namely: (i)  mistakes of fact in the Judgment; (ii)  the Judge’s error in finding that “the undertaking stands on its own”; (iii)  bias against the Husband; and (iv)  no finding on the Wife’s misconduct, the Judge did not find that the appeal had a reasonable prospect of success or there was some other reason in the interests of justice that the appeal should be heard.  Accordingly, the Husband’s application for leave to appeal was dismissed[2].

Appeal to this Court

7.  On 12 January 2024, the Husband made a renewed application to appeal against the Judgment, relying on the following grounds:-

(1)  The Judge made decision based on incorrect facts (“Ground 1”);

(2)    The Judge’s finding that “the undertaking stands on its own” is a severe contradiction to an Order made on 30 March 2023 (“Ground 2”); and

(3)    The Court exercised its discretion incorrectly (“Ground 3”).

Discussion

8.  As per Section 63A(2)  of the District Court Ordinance (Cap 336), leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

Ground 1

9.  The Husband claims that the Judgment was based on wrong facts, including (i)  the tuition fee increment was short of HK$16,000 by HK$14,276 instead of HK$20; (ii)  the Judge’s self-contradiction regarding the service of the proof of increment by the wife; (iii)  the Judge’s statement that “the Husband shall pay interim child maintenance as ordered without regard to the undertaking” was inaccurate as the Wife had always claimed that she had complied with the undertaking; and (iv)  typo as to the date of the Judgment.

10.  Regarding the claim that the tuition fee increment was short by HK$14,276 instead of HK$20, the Husband made reference to his Draft Grounds of Appeal dated 12 October 2023, which in turn referred to his written submissions of 8 June 2023 to the Judge.  We have gone through the said submissions, but consider the Husband’s arguments unsound as he had confused “increment to” with “increment of”.  The former applies to the undertaking.

11.  In relation to the service of the proof of increment, the Judge’s finding was indeed confusing as paragraph 7 and paragraph 12 of the Judgment were in inconsistent with each other.  This however is not a significant issue, nor a matter which assists the Husband. 

12.  As to whether the Wife’s position was that “the Husband shall pay interim child maintenance as ordered without regard to the undertaking”, we consider that the Husband is merely nitpicking over a particular sentence in the Judgment.  In any event, the Wife’s insistence that she had complied with the undertaking was not in conflict with whether she considered that the Husband had to pay without regard to the undertaking.

13.  As for the typo, it was a minor mistake which had been corrected by a corrigendum.  We disagree that such typo is sufficient to cast doubts on the reliability of the Judgment.

Grounds 2 and 3

14.  We shall deal with Grounds 2 and 3 together.

15.  The Husband maintains that if “the undertaking stands on its own”, the Judge would not have made an Order on 30 March 2023 for the Wife to file and serve an Affidavit in Reply as to whether she had fulfilled the undertaking.

16.  The Husband also contends that the Court did not exercise its discretion correctly, but did not provide any further elaboration.

17.  We agree with the Judge’s view that “the undertaking stands on its own”.  The undertaking was given by the Wife during the hearing on 1 April 2021 and became part of the Preamble of the Order made by DDJ M Lam.  It did not constitute a pre-condition of the Husband’s duty to pay interim child maintenance.  That is clear from para 2 of the Order.

18.  In respect of the Husband’s suggestion that the wife is in contempt of court due to her breach of the undertaking, there was no contempt proceedings before the Judge and it was not an issue before the court.

19.  In any case, the tuition fee was increased to HK$15,800 instead of HK$16,000 and the Wife had filed evidence that she had notified the Husband about the increase of tuition fee. 

20.  We are satisfied that the Court had considered all relevant factors holistically when exercising its discretion.  It has not been demonstrated by the Husband how the exercise of discretion can be faulted.

Disposition

21.  For the foregoing reasons, we considered that none of the proposed grounds of appeal has any reasonable prospect of success, nor is there any other reason in the interests of justice why the appeal should be heard.  Accordingly, the Husband’s application for leave to appeal is dismissed.

22.  We make an order nisi that the Husband shall pay the Wife’s costs of this application, to be taxed if not agreed. Such Order shall become absolute 14 days from today in the absence of any variation application. 

23.  As the Husband’s application is wholly unmeritorious, we make an order pursuant to Order 59 rule 2A (8)  of the Rules of the High Court that no party may under rule 2A (7)  request the determination of this Court to be reconsidered at an oral hearing inter partes.