MLYE v. LOS

HCMP 235/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 235OF 2016

(ON AN INTENDED APPEAL FROM FCMC NO 3321 of 2010)

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JUDGMENT

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

1.  This is a renewed application by the Respondent husband for leave to appeal against the judgment of Judge Melloy [“the Judge”] on ancillary relief in FCMC 3321 of 2010. That judgment was handed down on 12 June 2015. Application for leave to appeal was refused by the Judge on 27 January 2016.

2.  Pursuant to s 63A(2) of the District Court Ordinance Cap 336, leave to appeal should 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 interests of justice why the appeal should be heard.

3.  Prior to the judgment and the substantive trial of the application for ancillary relief (which took place in February and March 2015, lasted for 4 days with written submissions filed afterwards), there had been a trial of preliminary issues which culminated in a judgment of 6 November 2012.  The trial of preliminary issue lasted for 3 days from 30 November 2011 and then another 4 days from 29 May 2012.  Apart from the Respondent husband, 2 interveners also took part.  The issue in that trial of preliminary issue was whether or not a family company which we shall call AFCL was a financial resource that is available to the husband.  The case of the Petitioner wife was that it was.  The case of the Respondent husband (and the interveners, viz AFCL and sister of the husband) was that it was the sister of husband, instead of the husband, who was the true beneficial owner of AFCL.  The Judge found in favour of the case of the Petitioner wife in the judgment of 6 November 2012.

4.  There had been attempts in seeking leave to appeal against the judgment of 6 November 2012.  However, it was not further pursued after the Judge refused leave. The Respondent husband did not apply for leave to appeal against that judgment. Instead he took part in the ancillary relief application. The substantive trial of ancillary relief took place in 2015 without involving the interveners.   

5.  The intended grounds of appeal of the Respondent husband in the present application were set out in his affidavit, paragraph 2 of which stated:

“2. The husband’s ground for appeal against the Ruling and the AR Judgement are

a. The AR Judgement had been based on a Special Issue Judgement (“SI Judgement”) dated 6^th November 2012. The learnt District Court Judge (“the learnt Judge”) had been erroneous in the SI Judgement. Since the AR Judgement is on an erroneous ground that the AR Judgement is also erroneous. This is now shown to me marked Exhibit “LOS2-3”, a copy of the IS Judgement.

b. The learnt Judge has erred in construing the doctrine of adverse inference both in the SI Judgement and in the AR Judgement;

c. The husband and the interveners had been unfairly treated in the proceedings;

d. The Petitioner wife (“the wife”) is a perjurer and a dishonest witness. Unfortunately, the learnt Judge overtly said she was not interested in the wife’s general credibility.”

6.  He also referred to 2 attachments used by him when he sought leave below.  We treated those as his submissions.

7.  As the Judge quite rightly observed in her Decision of 27 January 2016 refusing leave, in substance the intended appeal was directed against the findings made in the judgment of 6 November 2012.  We also agree that it is not permissible for the Respondent husband to re-visit the conclusions reached in that judgment, given the failure on his part to appeal against that judgment. At the hearing before us, he explained that he suffered mental illness and was hospitalised for 3 months in 2013. However, the Official Solicitor subsequently reported to the court that he was fit to represent himself and on that basis he was allowed to represent himself at the ancillary relief hearing. He also told us he was aware of the need to follow the correct procedure if he intended to appeal. He was also aware of the time limit for appeal.

8.  We cannot accept his submission that he could wait for the result in the ancillary relief hearing before seeking leave to appeal against the judgment of 2012. Allowing such course to be taken would go against the purpose of having a trial of the preliminary issue. In any event, that was not his understanding at that time as he had applied for legal aid to bring an appeal though legal aid was refused. He told us he had received advice from a firm of lawyers after the judgment of 2012 and the prospect of appealing against the 2012 judgment must have been a matter canvassed since that firm also acted for AFCL in applying for leave to appeal against that judgment (though it was subsequently withdrawn).       

9.  In respect of his ground with reference to the drawing of adverse inference, as the Judge pointed out in her Decision of 27 January 2016, in the judgment of 12 June 2015 adverse inference was drawn regarding certain loans.  Having read that judgment, we are satisfied that the Judge did not make any error of law or principles in that respect which warrants intervention by this Court. 

10.  As regards the conclusion reached on the ownership of AFCL, we do not think it is simply a matter of drawing adverse inference. The Judge heard the relevant evidence from all parties concerned and reached her conclusions after assessing the evidence.  The process of assessing evidence always involved some inferential judgment, but it is not the kind of adverse inference which family judges sometimes resorted to (and quite properly resorted to) in attributing wealth or assets to a party who failed to observe the obligations of full and frank disclosure as to means.  On the evidence relating to the preliminary issue adduced before the Judge, we are of the view that she was quite entitled to come to the conclusion she did.  There is no palpable error which can provide a basis for this Court to reassess the position.  Regurgitation of submissions already advanced and considered by the court cannot give rise to a valid ground of appeal in the absence of such error, see China Gold Finance Ltd v CIL Holdings Ltd CACV 11 of 2015, 27 November 2015.

11.  In any event, as stated earlier, it is simply too late for any argument regarding the judgment of 6 November 2012 to be entertained.

12.  There is no basis to suggest there had been any unfair treatment of the Respondent husband or his sister.  The findings against them in the judgment of 6 November 2012 was reached after a trial at which both of them had taken part with full opportunity to adduce evidence and make submissions.

13.  The assessment of the credibility of the Petitioner wife is primarily the task of the Judge.  The Respondent husband failed to persuade us that we have any reason to intervene.  

14.  In the circumstances, it is plain to us that the intended appeal has no reasonable prospect of success and there is no other reason in the interest of justice to grant leave to appeal.  The Respondent husband’s intended appeal does not satisfy the requirement in Section 63A(2) of the District Court Ordinance.

15.  We therefore refuse to grant leave and dismiss the summons of 29 January 2016 with costs.

16.  Having considered the statement of costs and heard submissions, we fix such costs at $90,250.00.