W, JS v. M, YMA (formerly known as WM, YMA also known as M,YMA)

FCMC 8870/2022

[2025] HKFC 73

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 8870 OF 2022

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J U D G M E N T
( Application for Leave to appeal )

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1.  This is the application taken out by the respondent wife (“Wife”) for leave to appeal out of time against my decision in respect of a costs order made on 3 January 2025 (“Costs Order”). I ordered that the Wife do pay the costs of the petitioner husband’s (“Husband”) summons filed on 23 December 2024.

2.  This is not the first application taken out by the Wife in respect of the Costs Order. The Wife took out summons on 6 January 2025 to vary the Costs Order. The Wife withdrew the said application at the hearing on 12 February 2025 with costs awarded to the Husband.

3.  As a preliminary matter, the Wife requested for leave to appeal out of time. The application was filed on 24 March 2025. The deadline for taking out the leave application expired on 30 January 2025. This was 52 days after the stipulated 28 days’ timeline from my decision.

4.  The Husband did not file any reply to the Wife’s application.

Legal principles

5.  It is well settled principle that the appropriate tests when considering whether leave to appeal out of time ought to be given are :-

(a)  the length of the delay;

(b)  the reasons for the delay;

(c)  the prospects of success;

(d)  the extent of prejudice that would be caused to the other party if leave is granted.

6.  Where the delay is inexcusable, the applicant faces a higher threshold, i.e. the party must show a real prospect of success on merits and not simply the test of a reasonable prospect of success. The applicant would need to demonstrate a strongly arguable case.

7.  Section 63A(2) of the District Court Ordinance (Cap. 336) also provides that for leave to appeal to be granted, the intended appeal should have a reasonable prospect of success or there should be some other reasons in the interest of justice why the appeal should be heard.

The Wife’s Delay

8.  The Wife said the delay was relatively short and she had made known to the Husband and the court of her intention to challenge the Costs Order at the hearing on 3 January 2025. The Wife also contended that the Husband was partly responsible for the delay.

9.  Despite the Wife is a practising solicitor, she claimed that she has no knowledge of the relevant law and legal procedures. She also claimed that she was busy in preparing other affirmations for the committal proceedings against her and the Husband’s new non-molestation order application.

10.  The Wife’s main justification for the delay was that she did not know the legal procedures. I reject her explanation for the following reasons.

11.  First, it is shocking to learn that the Wife as a solicitor who is holding a practising certificate claimed that she had no knowledge of legal procedures.

12.  Second, even if the court was to treat the Wife as a litigant acting in person, the court has repeatedly held that litigants acting in person should bear responsibility for the proper preparation of their case in accordance with the rules and procedures of the court. All stakeholders, including litigants in person, should adhere to the rules and procedures of the court: see AXA China Region Insurance Company Limited v Leong Fong Cheng (unrep), CACV 113/2016, §§47 and 55.

13.  Third, the Wife’s claim that the Husband was partly responsible for the delay is likewise without merit. The decision on Costs Order was given at the hearing on 3 January 2025 when everyone was present. It is clearly stipulated in the legislation that the time for application for leave to appeal must be made 28 days from the date of judgment. See: Order 58, rule 2 of the Rules of District Court, Cap. 336H.

14.  Fourth, 52 days delay is both substantial and inexcusable. The Wife appears to treat the Costs Order as an interlocutory order. If the Costs Order was an interlocutory order, then the Wife’s application was 66 days after the stipulated 14-day timeline.

15.  For the above reasons, I am unpersuaded by the Wife’s explanations for the substantial delay. These considerations strongly weighed against the grant of an extension of time.

The Wife’s chances of success on appeal

16.  In an application for an extension of time to file a notice of appeal, where the delay is inexcusable, the applicant must show a real prospect of success on merits. In my view, there is in fact no prospect of the Wife succeeding on appeal.

17.  The Wife’s main assertion was that the Husband did not get what he prayed for, i.e. a non-molestation order for 2 years. In the circumstances, the Wife was indeed the winning party. In my view, this argument is totally devoid of merit.

18.  The award of costs is a matter in the court’s discretion. The general principle is for costs to follow the event.

19.  The Husband took out summons on 23 December 2024 for an extension of the non-molestation order granted by HHJ KK Pang on 13 July 2023 (“Extension Application”). The Husband requested the court to extend the non-molestation order for another 24 months.

20.  The Husband complained that despite the non-molestation order was in place, the Wife had failed to comply with the said order and continuously sending offensive and defamatory emails and messages to him, his family members and employer.

21.  The Wife did not dispute that she sent out those emails and messages, but she claimed that her acts were triggered by the Husband’s mother’s unreasonable behavior.

22.  I accepted the Husband had reasonable grounds to take out the Extension Application. However, I considered that it was only appropriate to extend the non-molestation order until 2 February 2025, i.e. before the second anniversary of the date on which the original order was granted.

23.  Although the Husband was not able to extend the non-molestation order beyond 2 years, there were valid reasons for the Husband to take out the Extension Application. In the circumstances, costs should follow the event, and the Wife should bear the costs of the application.

24.  I do not see the intended appeal has any real prospect of success.

Conclusion

25.  For the reasons set out above, the Wife’s application for leave to appeal out of time is dismissed. The Wife has also failed to demonstrate a real prospect of success in her intended appeal and there is no other reason in the interests of justice why the appeal should be heard.

Orders

26.  I make the following Orders:

(1)  The Wife’s summons filed on 24 March 2025 be dismissed; and

(2)  There be no order as to costs of this application.