H v. H

FAMV No. 4 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 4 OF 2001 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV No.322 of 1999)

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Between:

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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. The applicant and the respondent who are now both in their 30s were divorced after they had been married for about 8 years. They have 2 children aged 8 and 4. Upon their applications for ancillary relief, the Family Judge granted the custody of the children to the applicant. The Judge also made certain orders regarding maintenance and property adjustments. On appeal by both parties, the Court of Appeal varied those orders for the main reason that the Family Judge had misunderstood part of the evidence relating to the respondent’s pension and gratuity and failed to take note of the applicant’s increased income. From the orders of the Court of Appeal, the applicant seeks leave to appeal to the Court of Final Appeal from this Committee, having failed to do so before the Court of Appeal.

2. The applicant’s first argument is that she is entitled to appeal as of right because the matter in dispute involves “a question respecting property and an entitlement to maintenance amounting to” a claim which is in excess of $1 million. In support of her argument, she points to the total amount of the immediate available assets of the parties. She has produced before us an updated version of what she said was the family assets. Her claim is also based on maintenance payments for the next 12 months.

3. Under s.22(1)(a) of the Court of Final Appeal Ordinance, an appeal only lies as of right, from a final judgment of the Court of Appeal, where the matter in dispute on the appeal amounts to or is of the value of $1 million or more. This provision does not apply to unliquidated claims. See Cheng Lai Kwan v Nan Fung Textiles Ltd [1998] 4 HKC 1.

4. We do not think the applicant has satisfied this condition. She claims to be entitled to maintenance by the respondent and to a share in the family assets. But she has not indicated exactly how much she is claiming or the basis of her claim, apart from saying that she would be content with getting of 50% of the family assets. That, in our view, is clearly not sufficient for ascertaining the amount of her claim for the purpose of deciding whether she can appeal as of right. From a careful examination of her claim relating to these items, we are not sure that she has given us a correct picture of the family assets and in any event, it is clear that she has not begun to show that the matter in dispute between her and the respondent would be $1 million or more. We are unable to accept that she has a right of appeal.

5. The applicant also submits that there are questions of law of great general or public importance. We do not think so. The principles governing ancillary relief are well known. S.7 of the Matrimonial Proceedings and Property Ordinance set out the relevant matters to be considered. There are of course numerous cases including the case of White v White [2000] 3 W.L.R. 1571 to which the applicant referred in which these principles were applied. But each case is to be decided according to its own facts. We are not convinced that the Family Judge and the Court of Appeal had applied any principle which is inconsistent with these principles or those discussed in White v White. We do not think there is any point of law of great general or public importance involved in this case.

6. We are also not satisfied that there are any other reasons or circumstances justifying the granting of leave. The application is refused.