Michelle Chen Shaw v. Kyle Arnole Shaw Jr.

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FAMV No. 27 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 27 OF 2000 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMP NO. 2499 OF 2000)

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D E T E R M I N A T I O N

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Mr Justice Chan PJ:

1. After a decree nisi, the applicant (the wife) applied for ancillary relief from the respondent (the husband) asking for a lump sum payment, payment of her debts and arrears of rent and maintenance until she was able to re-organise herself and resume employment. The husband applied for a lump sum payment from the wife. The wife's younger brother intervened seeking a declaration that he was the beneficial owner of two properties in Shanghai which were purchased in the name of the wife and certain interest in a company set up by the husband and the wife.

2. The husband and the wife were married for about 7 years when the decree nisi was granted. They had no child but adopted the wife's niece in 1997 when the girl was in her teens and, as the trial judge had found, for the purpose of enabling her to study in the United States. Both the husband and the wife were highly educated professional people in the financial and banking fields. They had their own investment company in Hong Kong in which the wife's brother was holding half of the shares on trust for the husband. The husband also worked for an investment company and was posted to Shanghai where the couple had spent 3 years. During that time, they purchased three properties in the name of the wife who was a Chinese national, two of the properties for themselves and the third for the husband's employer. The couple also had a number of investments and bank accounts.

3. After a trial which lasted some 14 days, the trial judge substantially accepted the husband's evidence, in particular that it was he who contributed to the purchase of the properties and the investments. He ordered the husband to pay the wife a lump sum of HK$440,000 which represented 8 months maintenance, to discharge the wife's liability towards the tenant in respect of one of the Shanghai properties and to pay the arrears of rent for her. Upon making these orders and upon the wife's compliance with her undertaking to transfer the third Shanghai property to the husband's former employer, the judge dismissed the wife's other claims. He also dismissed the claims of the husband and the intervener.

4. The wife applied to the trial judge for leave to appeal to the Court of Appeal. This was turned down. She then applied to the Court of Appeal. This was again refused. Her application to the Court of Appeal for leave to take the matter to the Court of Final Appeal was also dismissed. She now applies to this Committee. Her application is based on both limbs under s.22 of the Court of Final Appeal Ordinance.

5. With regard to the first limb, notwithstanding the submissions of counsel for the wife, we are not satisfied that she has a right of appeal to the Court of Final Appeal. For the purpose of seeking leave to appeal to the Court of Final Appeal under s.22 (1)(a), we are concerned with the order of the Court of Appeal, i.e., whether there is a final or interlocutory order of that court. The wife's application to the Court of Appeal was, as conceded by counsel for the wife, an application for leave to appeal and the order made was clearly an interlocutory order. In our view, the wife does not meet the condition under s.22(1)(a).

6. With regard to the second limb, it appears that two questions are sought to be certified. The first is framed as follows : Is it fatal for the tribunal to state the provisional determination of issues prior to hearing any oral evidence upon which a determination of those issues depend? The second appears from the notice of application which can be summarised as follows : Is it fatal for the judge to reverse the procedure at the hearing by asking counsel for the husband to open his case?

7. A number of complaints have been made against the trial judge's conduct of the case and his judgment. In particular, it is alleged that the judge had made certain remarks during the hearing indicating the approach he would be adopting in dealing with the applications before him; that this suggested that he had pre-determined the case to the prejudice of the wife; that the judge had reversed the procedure without explaining to the wife (who was then unrepresented) or seeking her consent; that the judge had adopted a wrong approach to the issues before him and that the judge had allowed the wife to look after the intervener's interest.

8. It is clear from the judgment given by the trial judge that he had taken into consideration all the factors set out in the relevant provisions of the Matrimonial Properties and Proceedings Ordinance and had carefully analysed all the evidence before he came to his conclusions. Having considered the submissions of counsel, we are not satisfied that any of the matters submitted by him raises any questions of law of great general or public importance. As regards the specific allegations in this case, we are not satisfied that it can be reasonably argued that the trial judge had pre-judged the issues before him or that the alleged conduct on the part of the judge, which, it would seem, was probably nothing more than the judge giving guidance to an unrepresented litigant or giving his tentative view on the matter, would necessarily have the effect of vitiating the orders which he had made or that the wife had suffered any prejudice as a result of the procedure adopted by the judge.

9. We also do not think that there are exceptional circumstances in this case which would merit the exercise of our discretion under the "otherwise" limb in s.22(1)(b).

10. For these reasons, we refuse the application with costs to the respondent.