M v. L

CAMP 248/2019

[2020] HKCA 255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 248 OF 2019

(ON AN INTENDED APPEAL FROM FCMC 14921/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

FACTUAL BACKGROUND

1.  This is a renewed application for leave to appeal against the judgment of Deputy District Judge M Lam (“the Judge”) in the Family Court in FCMC 14921/2017 given on 22 May 2019.  In the judgment ([2019] HKFC 133) (“the Judgment”), the Judge allowed the wife’s petition for divorce on the basis of 2-year separation and awarded costs in her favour.

2.  By the decision dated 4 May 2019 (“the Leave Decision”) (see [2019] HKFC 252), the Judge refused leave for the husband to appeal.  The husband took out the present summons on 9 October 2019 renewing the leave application.  Having considered the parties’ written submissions, we consider it is appropriate that the husband’s renewed application be disposed of on the papers without an oral hearing. 

Background

3.  The background leading to the present application is set out in the Judgment at [2] to [11]. 

4.  In brief, the parties married on 30 December 2005 and no child was born to the parties together during the marriage.  The wife initially petitioned for divorce on the basis of 2-year separation since April 2013 under action FCMC 942/2016 (“the First Action”) on 23 January 2016. The husband defended the petition and pleaded that up to 8 September 2015, the couple were still living together in Hong Kong and that the wife only moved out of the matrimonial home on 9 September 2015 (“the Departure Date”).  He prayed for the petition be dismissed with costs to him. 

5.  By the order of Deputy District Judge David Cheung on 23 October 2017, the wife had leave to file a new petition for divorce on the ground of 2-year separation since 10 September 2015 and the new action be consolidated with the First Action.   The wife did so on 15 November 2017 under the present case.  The husband defended the petition and denied separation for lack of agreed or deed of separation.  He further prayed for the wife’s petition be dismissed due to a false statement contained therein about her residential address.  On 4 May 2018, the husband issued a divorce petition based on adultery under action FCMC 5284/2018.  It was consolidated with the wife’s petition by order of the court dated 19 June 2018.  

The Judgments Below

6.  The Judge was satisfied on the evidence that the wife had satisfied the requirements as prescribed by section 11A(2)(d) of Matrimonial Causes Ordinance, Cap 179 (“MCO”) that the parties had lived apart for a continuous period of at least 2 years before the petition.  The Judge rejected the husband’s argument that the absence of any agreement or deed of separation was a bar to the operation of section 11A (2)(d) of MCO.  She held that the law did not require the party intending to separate to seek agreement of the other party for separation.  She also rejected the argument of the husband based on the wife’s incorrect address in the petition.  She accepted the wife’s explanation of the mistake.  In any event, such false address would not destroy the wife’s case of 2-year separation.

7.  Regarding the husband’s allegation of adultery, as the Judge had reached the finding on the breakdown of the marriage on the basis of 2-year separation, she did not find it necessary to investigate into the issue merely to satisfy the husband’s feelings or to allow bitter recrimination against the other party.  Following the approach espoused in Grenfell v Grenfell [1978] Fam 128 and SJH v RJH [2012] 4 HKLRD 308, she adopted the sensible and pragmatic approach to dissolve the marriage as quickly and painlessly as possible.  She also held that the giving birth of a daughter (in September 2017) by the wife with another man long after the parties’ separation would not amount to any “obvious and gross” conduct that may affect either party’s position in the ancillary relief application.

The Leave Application

8.  The husband applied for leave to appeal against the Judgment.  He had put forward 3 proposed grounds of appeal which were duly set out in [7] of the Leave Decision :

(i)     the Judge erred in finding the parties had lived apart for at least two years immediately preceding the filing of the wife’s petition;

(ii)    the Judge was wrong in not granting a decree based on adultery, having ignored the birth of a daughter by the wife with another man during the marriage of the parties; and

(iii)   the Judge wrongly ordered the husband to pay the costs of the main suits.

9.  After due consideration of the parties’ written submissions, the Judge dismissed the husband’s leave application on paper.  On the 2-year separation issue, the Judged rejected the Husband’s allegation that there was a lack of evidence.  Instead, the Judge considered the evidence was strong and well supported by the contemporaneous documents like emails and text messages between the parties which were all consistent with the parties’ conduct and background facts.  Regarding the grounds on the issues of adultery and costs, the Judge found no basis or merits in the husband’s arguments.

The renewed application for leave

10.  By way of summons taken out on 9 October 2019, the husband renewed the application for leave to appeal before this court.

11.  Leave to appeal would not be granted unless this Court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interest of justice that the appeal should be heard, see Section 63A(2) of the District Court Ordinance.  The applicant bears the burden of satisfying this Court that his intended appeal has a reasonable prospect of success.  It means an appeal with a prospect that is more than fanciful but which does not need to be shown to be probable. 

12.  When an applicant seeks to challenge the findings of fact made by the court below, unless he can show that the judge misunderstood the evidence, or failed to appreciate its effects, or overlooked some documentary or other indisputable evidence which should have compelled him to a different conclusion, this court will not interfere with those findings of fact. The evaluation of evidence is primarily a matter for the first instance judge and the threshold for upsetting a factual finding is high, see Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336; China Gold Finance Ltd v CIL Holdings Ltd CACV 11/2015, 27 November 2015; Hoptai Sharkfins Co Ltd v Productos Pesqueros Gallegos SL CACV 240/2014, 7 December 2015.

13.  In this renewed application the husband raised similar grounds of appeal as those advanced before the Judge.   

14.  As regards the husband’s challenge against the Judge’s finding of two-year separation, we are of the view that he is nowhere near to overcoming the high threshold for reversing such finding.  The assessment of evidence is primarily the task of the trial judge.  In this instance, the Judge gave very full and cogent reasons in her judgment of 22 May 2019 for coming to such finding.  She did not fail to consider any relevant evidence. Nor did she misunderstand any evidence.  As far as we can see, on the evidence before the court, her finding that the wife had lived separately since the Departure Date is clearly right.  There is no merit in the husband’s challenge in this regard.  

15.  On the husband’s challenge to the Judge’s approach in refusing to entertain the petition based on adultery, as the Judge had repeatedly explained in [18], [43] to [45] of the Judgment and [20] of the Leave Decision, the modern approach accepted by the courts is that once the court reached a finding on the breakdown of the marriage on the basis of separation, it should adopt a sensible and pragmatic approach to dissolve the marriage as quickly and painlessly as possible.  In so doing, the Judge rightly followed the well-established approach in Grenfell v Grenfell [1978] Fam 128 which was adopted by the Court of Appeal in the case of SJH v RJH [2011] HKCA 280, [2012] 4 HKLRD 308.  This Court also upheld such an approach in THY v CHFR [2018] HKCA 240 which is indistinguishable from the present case in this respect.

16.  We cannot see any relevance of the wife’s giving birth to a daughter with another man during the period of separation on the finding of two-year separation and the approach to be adopted.  If at all, that fact only reinforced the finding of separation in terms of the manifestation of the wife’s intention to leave the husband.  It could not assist the husband. 

17.  On the issue of costs, the Judge duly explained in [26] to [34] of the Leave Decision why the husband should pay costs.  The Judge had a wide discretion on costs.  As long as it is within the reasonable ambit of discretion, this Court will not disturb it.  We do not find any error of principle in the Judge’s ordering costs against the husband in the present case.  Nor do we find such order plainly wrong.  The intended appeal against the costs order has little prospect of success.    

18.  For these reasons, we are of the view that the intended appeal is unmeritorious and has no reasonable prospect of success.  We do not think there is any other reason why this Court should hear the appeal in the interest of justice.  Accordingly, we dismiss the application for leave to appeal.

19.  We are of the view that the application is totally without merit and we make an order pursuant to Order 59 Rule 2A(8) that no party may request the determination to be reconsidered at an oral hearing inter partes.