XCHRX YEUNG WONG FUNG HING v. YEUNG TIM TUNG

CACV 224/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 224 OF 1998

(ON APPEAL FROM FAMILY COURT

MATRIMONIAL CASE NO. 5388 OF 1996)

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REASONS FOR DECISION

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Leong, J.A. (giving the ruling of the Court):

1. This is an application to adduce fresh evidence in appeal. The application was heard on 12th February 1999 and was dismissed with costs to the respondent. At that time, this court indicated that it would give written reasons later and the following are the reasons for decision.

2. The applicant is the respondent in divorce proceedings. His wife is the petitioner. On 14th April 1998, District Judge Carlson ordered the sale of the matrimonial home based on a valuation of $1.65 million and out of the net proceeds of $1.5 million, the wife was to be paid a lump sum of $1 million and the applicant $0.5 million. After deduction for his litigation costs and his indebtedness, the applicant would be left with $160,000 for his disposal. The applicant was also ordered to pay maintenance of a total of $9,900 per month for the maintenance of his three children. The applicant was a bus driver but at the time of trial he was unemployed. The applicant appealed against this order and he now seeks leave to adduce fresh evidence in his appeal.

3. The fresh evidence he seeks to adduce is in three respects:

a. a valuation report of the matrimonial home prepared in August 1998. This report indicates that the open market value of the premises on 24th August 1998 was $1.5 million.

b. evidence that he was granted by the Social Welfare Department financial aid of $1,805 per month for the period from 11th June 1998 to 10th May 1999 to show that he was in financial difficulties.

c. evidence that he had not paid his electricity, gas and telephone charges, insurance premium and management fees for the matrimonial home for several months and that instalment payments for the mortgage of the matrimonial home had not been paid resulting in a writ claiming arrears and possession issued by the mortgagee bank in October 1998.

4. The applicant claims that the evidence was not available at the trial because the events giving rise to such evidence occurred after the trial.

5. Mrs Remedios, counsel for the applicant accepts that since the evidence sought to be admitted in the Court of Appeal is in respect of matters which occurred after the date of trial, the applicant needs not show the requirements of Ladd and Marshall are satisfied and the matter lies with the discretion of the court. Counsel submits that District Judge Carlson in making the lump sum award of $1 million to the wife had based the award on the value of the property being $1.65 million. On that assumption, the applicant would be left with sufficient funds out of the proceeds of sale to pay for the maintenance of his children and for his own maintenance. The valuation report in August 1998 estimated that value of the property was $1.5 million only, a reduction of 9%. On that basis, it is submitted, what would be left with the applicant from the proceeds of sale after payment of the lump sum to the wife and other deductions, would be very little and the applicant would not be able to maintain the periodic payments and to maintain himself. The evidence of the new valuation is to assist the Court of Appeal to appreciate that there is a down turn in the property market so that the lump sum awarded in the definite amount of $1 million should be varied to a lump sum based on a percentage of the value of the property. Mrs Remedios further submits that while periodic payments may be varied on application to the Family Court judge, it is necessary to appeal in order that the lump sum award may be varied. Thus this court should exercise its discretion to admit the evidence.

6. Ms Yip, for the respondent submits that the evidence the applicant seeks to adduce raises issues which the applicant does not agree. These are factual disputes which an appellate court is not in a position to deal with. Further the discrepancy between the valuation before and that after the trial is insignificant, being only a difference of 9% and valuations being mere estimates are not conclusive evidence of the value of the matrimonial home. Miss Yip further submits that since the property market is fluctuating, valuation report of the property giving estimates of value at a given time would not assist the Court of Appeal. The trial judge, it is submitted, had considered the applicant's financial position and the admission of the new evidence would not render it wrong the assumptions on which the judge had reached his conclusion.

7. The law as to admission of evidence in the Court of Appeal as regards matters occurred after the trial is clear. The question has to be decided by an exercise of discretion and it is largely a matter of degree, and there is no precise formula which gives a ready answer. There is however, to be taken into account in exercising the discretion an important factor. It is in general undesirable to admit fresh evidence on appeal because there ought to be finality in litigation. If further evidence of new events were too easily admitted, there would be no finality in such litigation. (Curwen v. James [1963] 1 WLR 748, Murphy v. Stone-Wallwork (Charlton) Ltd., H.L. [1969] 1 WLR 1023).

8. In my opinion, the evidence sought to be adduced relates to a change of the value of the property and of the applicant's circumstances after the trial. The valuation in August 1998, some six months ago, compared with the valuation in April 1998 indicates the value of the property has gone down by 9%. This is challenged by the respondent. How the property market will perform by the time the appeal comes to be heard is not known. It may be more than it was at the time of the order or it may be less. Because of this uncertainty, to invite the Court of Appeal to conclude on the trend of the property market based on the valuation in August 1998 is to invite the court to enter into speculation. The report would not render it wrong the judge's decision that was based on the value of the property at the time of trial. The trial judge was aware of the applicant's financial difficulties, being unemployed and had to live on borrowing and the generosity of his friends. That he is unable to pay his bills and had to receive public assistance is but evidence of his financial difficulties and this would not make the assumption on which the judge reached his conclusion different. An appeal is a review of the judge's decision on the evidence at the trial and not a retrial with further evidence added. The evidence which the applicant sought to adduce would not assist his appeal. In any case, the applicant is entitled to go back to the Family Court and apply for a variation of the order of District Judge Carlson if he is really unable to maintain the periodic payments. This court is not persuaded that this is a proper case for the court to exercise its discretion to admit the evidence sought to be adduced by the applicant. The application is dismissed with costs to the respondent. The respondent being legally aid, his own costs is to be taxed in accordance with Legal Aid Regulations.