LACHY v. YC

CAMP 12/2019

[2019] HKCA 319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 12OF 2019

(ON AN INTENDED APPEAL FROM FCJA 2057/2016)

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JUDGMENT

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

1.  On 17 August 2018, after determining that the 2^nd applicant failed to establish her serious allegations against the girlfriend of the 1^st applicant of improper touching of a child or behaviour in front of the latter in a fact finding hearing, Judge Melloy ordered costs against the 2^nd applicant. The 2^nd applicant sought leave to appeal against the decision on costs and the judge refused to grant leave on 29 November 2018.

2.  The 2^nd applicant renewed the application for leave before us.  She also sought extension of time to do so since she did not apply until 23 January 2019, substantially outside the prescribed period for doing so. 

3.  After considering their respective submissions (the 1^st applicant’s submissions were set out in his affirmation) and hearing the parties, we are of the view that leave should not be granted and extension of time should not be given. 

4.  There is a high threshold for an appeal against costs only.  As it has been said repeatedly, costs are very much a matter for the judge and the Court of Appeal will be circumspect in intervening with the exercise of that discretion: Ho Shu Kwong v Chiang Chun Yuan [2002] 3 HKLRD 419; Hung Fung Enterprises Holdings Ltd v Agricultural Bank of China [2012] 3 HKLRD 679; Poon Ching Man v Lam Hoi Pun [2016] 3 HKLRD 815.

5.  In the judgment on costs of 17 August 2018, the judge adopted no order on costs in child related matter as the starting point (see [6] of the Costs Judgment). She said it would be unusual to award costs unless a party has been unreasonable in the conduct of the litigation.  After citing some relevant authorities, the judge explained the rationale for adopting that starting point at [9]. 

6.  At the same time, the judge was mindful that litigants should not be able to hide behind the fact that a matter is child related to mask litigation behaviour which would not be countenanced in other situation.  She had already said so when she gave her costs order nisi at [33] of her Fact Finding Judgment of 21 November 2017.  She reiterated this stance again at [11] of the Costs Judgment.

7.  The judge said at [9] of the Costs Judgment it was essentially a question of degree in considering whether a litigant had crossed the line between raising legitimate concerns for the court’s consideration and conducting litigation unreasonably.  

8.  She found that the 2^nd applicant had been unreasonable in the conduct of the litigation.  At [11] of the Costs Judgment, she expressed her finding in this respect as follows:

“ It seems to me that the mother’s litigation conduct was unreasonable in that she doggedly continued to trial notwithstanding the reports that had been filed and the fact that it was clear that she could not substantiate the allegations made.”

9.  Counsel for the 2^nd applicant seeks to challenge that finding.

10.  The threshold for this Court to set aside a finding of this nature is very high.   The judge was familiar with the case and, unlike her, this Court does not have the advantage of first-hand experience of the conduct of the litigation.  To upset such a finding, this Court has to be satisfied that the judge had been plainly wrong.  The 2^nd applicant is nowhere near in the discharge of such heavy burden.  Counsel’s submissions did not refer to any specific matters which support the bold assertion that the judge was wrong. Insofar as the 2^nd applicant referred to matters raised before the judge in the application for leave below, the judge had sufficiently addressed the same at [6] in the judgment of 29 November 2018 refusing leave.

11.  Notwithstanding the submissions of counsel, we cannot find any reasonably arguable basis for this Court to overturn such finding. 

12.  Once we reach that conclusion, the intended appeal has no reasonable prospect of success.  We agree with the judge that in the present context it does not matter that the Fact Finding Hearing was directed by the judge as opposed to being requested by the 2^nd applicant.  The judge had given ample opportunity to the 2^nd applicant to retract her unsubstantiated serious allegations.  Nor do we find anything of substance in respect of the references to the postings on Facebook.  These are matters which the judge could take into account.  It is irrelevant that Ms N, the girlfriend, was not joined as a party.

13.  We also do not accept that the 2^nd applicant had any excuse for the serious delay in bringing this application.  Leaving Hong Kong for holidays elsewhere cannot be acceptable excuse.  Extension of time should not be allowed unless the 2^nd applicant shows real prospect of success. As explained, there is no prospect of success in the intended appeal.  

14.  For these reasons, the 2^nd applicant has not satisfied the threshold in Section 63A(2) of the District Court Ordinance for leave to appeal to be granted. 

15.  We dismiss the summons of the 2^nd applicant of 23 January 2019 accordingly.