BKGGB also known as NGGB v. BKND

FCMC 1410/2019

[2021] HKFC 181

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 1410 OF 2019

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BETWEEN

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Reasons for Decision

(Leave to Appeal)

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1.  An oral hearing for this application for leave to appeal was heard on 25 August 2021.

2.  There are two Summons by the Respondent Husband (“Husband”) to be considered under this decision.

(i) His application for leave to appeal against my judgment handed down on 24 May 2021 (“Relocation Judgment”), and

(ii) His Summons to adduce fresh evidence for the purpose of his leave to appeal (“New Evidence Application”).

3.  This was a relocation application by the Petitioner Wife (“Wife”) to bring two children of the family back to the UK, which trial was dealt with by me in December 2021 during my appointment as a deputy judge sitting on a temporary basis over the period. I granted leave for her to do so in the Relocation Judgment, and allowed her to return to the UK with effect from 25 August 2021 so as to give the Husband time to spend with the children over the summer before school starts in the UK.

Background

4.  Reference should be made to the Relocation Judgment for the background of the parties, it will not be repeated here.

5.  The development of this matter warrants the timeline to be set out in detail as a starting point.

Husband’s Leave to Appeal Application

6.  After the trial on the relocation, the Husband began to act in person. Husband filed a Summons for leave to appeal against the Relocation Judgment on 17 June 2021 together with his 14^th Affidavit.

7.  On 30 June 2021, he was directed to follow the proper procedures recorded in the “New Arrangement for applications for leave to appeal in the Family Court” (copy given to him) and to comply with it strictly on or before 9 July 2021. His 14^th Affidavit was returned to him.

8.  On 9 July 2021, he filed the requisite Summons with grounds of appeal, and a skeleton submission (“Leave to Appeal Summons”). In the last paragraph of his grounds of appeal, he wrote this:

“The Appellant seeks leave to file pursuant to the rule in Ladd v Marshall his 14^th Affidavit and Exhibits thereto which provides crucial new evidence that the Respondent has not complied with her evidence and the order to facilitate access and there is no criminal investigation ongoing.”

9.  On 15 July 2021, he was directed to properly seek leave to adduce new evidence “by way of inter-partes summons with supporting affidavit to be filed and served on or before 26 July 2021”, and directions were given for exchange of affidavits to finalize by 13 August 2021. The Husband filed his 20^th Affidavit in support of this application on 26 July 2021 but there was no inter-partes summons filed with the court.

10.  On 5 August 2021, the court informed the Husband that while his affidavit had been received, there was no inter-partes summons, he was then directed to write to court to explain the absence of the inter-partes summons for the court’s consideration, failing which his application to adduce new evidence will not be dealt with. On 9 August 2021, he wrote to Court with an explanation attaching his summons dated 26 July 2021, an excerpt therefrom reads as follows:

I wish to sincerely apologize for my failure to enclose this Summons in my letter to the Court dated 26 July 2021. This is entirely due to a clerical oversight as I have (1) referred to the Summons in my letter to the Court dated 26 July 2021, and (2) reproduced, verbatim, all the terms of the Summons in my 20^th Affidavit dated 26 July 2021, which was fully filed and served upon Withers such that there is no surprise in relation to the terms of the summons and no prejudice whatsoever to the Petitioner in this regard. (my emphasis)

11.  On 16 August 2021, he was given leave to file his late summons on or before 18 August 2021. Further directions were given for the Wife to respond with a deadline for exchange of submissions on 31 August 2021.

12.  Husband wrote to Court on 17 August 2021 attaching his Summons, which he claimed to have previously filed to Court (which in fact he had not). He took issue that the deadlines I gave on 16 August 2021 would render the leave to appeal application nugatory. He asked for submissions to be exchanged on 19 August 2021, and an oral hearing to be held on or before 25 August 2021. He then gave this Court a deadline to respond to him. It is of note that that the Wife’s solicitors had not have the opportunity to respond to the Husband’s New Evidence Application.

13.  Husband wrote to Court again on 19 August 2021 attaching his submission and repeating his deadline to this Court. Wife’s solicitors wrote on the same day in protest.

14.  On 20 August 2021, the Court directed an oral hearing to be heard for both the New Evidence Application and then the Leave to Appeal application at the then earliest available time slot available, on 25 August 2021. At his point, the Husband had still not filed his Summons and he was reminded to do so again in the directions.

15.  Husband eventually filed his Summons for the New Evidence Application on 23 August 2021, more than 5 weeks after he was first directed to do so on 15 July 2021.

16.  On the date of the oral hearing, the Court was given the Wife’s 21^st Affirmation wherein she informed the Court that she would not be able to attend the hearing as she had departed on a flight at the early hour of the morning on 25 August 2021. This was permitted under the Order made in the Relocation Judgment.

The Applicable Legal Principles

17.  The appropriate test when seeking leave to appeal is set out at s.63A of the District Court Ordinance (Cap. 336), which states that either the appeal must have a reasonable prospect of success or that there is some other reason in the interest of justice why the appeal should be heard.

18.  The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. The case of SMSE v KL [2009] 4 HKLRD 125, elaborated as follows:

“…. Reasonable prospects of success involve the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.

19.  It is also trite to say that the Court of Appeal is unlikely to interfere with the exercise of the Court’s discretion unless it can be shown that it has plainly exercised that discretion incorrectly, and not merely because the Court of Appeal preferred a solution which the trial Judge had not opted for.

20.  As to the Husband’s application to adduce new evidence for the purpose of appeal, the applicable law is well established in the case of Ladd v Marshall [1954] 1 WLR 1489, quoted by the Husband in his grounds of appeal and cited in the Wife’s counsel’s submission. In considering whether to exercise my discretion to allow an appellant to rely on evidence which was not before the court during the trial, these are the factors I have to consider:

i. The evidence could not have been obtained with reasonable diligence at the trial;

ii. The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

iii. The evidence must be such as would presumably be believed, or in other words, it must be apparently credible though it need not be incontrovertible.

Husband’s Grounds of Appeal

21.  Save for my order for Joint custody, the Husband appealed against my decisions under the Relocation Judgment and seek a stay of the Orders I made therein.

22.  He asks for leave to appeal based on 21 grounds, following his paragraphs in his Grounds of Appeal:

(1) Important evidence following the trial that the Wife has failed to allow access and new evidence providing proof beyond reasonable doubt that no police investigation was documented as having been opened.

(2) I have erred in law by not allowing a fact-finding exercise which would reveal the “aforesaid new evidence”, and he went on to refer to the police investigation where he stated that there was no police investigation occurred or was “formally opened”.

(3) I have erred in accepting the Wife’ unsubstantiated opinion that the police investigation has not fully close, and had a fact-finding exercise been ordered, “any question of that opinion would have been resolved.

(4) That I have erred in fact by not ordering the Wife to disclose the digital image of the search, “which, amongst other details could have readily answered one basic question in contention, of how many Police officers attended the search.” And that such non-disclosure, inter alia, “gives rise to serious questions as to the overall integrity of any of the [Wife’s] testimony.”

(5) That the new evidence has a “major implication for the false accusation proffered by the Respondent to the UK authorities”, insofar as it reflects the Wife’s now proven false claim that there is “an ongoing criminal investigation”. Herein the Husband went on to talk about the “negative ramifications such as serious misrepresentation presents socially, for employment, legally, and/ or otherwise to the Applicant”.

(6) This is to be quoted in full:

“That the Court erred in fact by stating [para 182 refers] the Respondent “case was clear from the beginning, it was not that she alleged that the Daughters have been …. abused, but she felt they are at risk” – whereas contradicting that summation, the Judgment accepts [para 54] that the SIRS confirmed ‘[there is no evidence] of the abuse the Mother is alleging” and, moreover [para 106 refers] the ISIR confirmation that the Respondent was “worried about A’s emotional and behaviours [sic] needs for being exposed to domestic abuse and potentially being subject to sexual abuse”. (Husband’s emphasis)

(7) That I have erred in fact by accepting the Wife’s evidence that she was “concerned with the risk of abuse” and not “complaining about actual abuse having taken place”, I have contradictorily and prejudicially based my Judgment in major part upon an incident of alleged actual abuse, being the Bot Bot incident (as so referred in the Relocation Judgment), and that such incident is not substantiated as fact.

(8) That I have separated two incidents, which are “the Clubhouse incident” and “The Bot Bot incident”, giving “undue weight to two alleged unsubstantiated incidents”. The Husband states that in reality there is an “automatic linkage of the two alleged events”, and that the second Bot Bot incident could only relate as a “follow on causal outcome of the allegations of the first Clubhouse incident.” He went onto say “Given therefore the linkage is implicit, the conclusions of the SWO, under the guidance of ‘The Special Investigation Team on Child Protection of the Police Force’, should effectively automatically negate the complaint of the first as it did the second.”

(9) That I have erred in fact that I have relied my conclusion only of a “possibility” of risk to children, and not a “probability”.

(10) This in part, also has to be quoted verbatim:

“That the court erred in fact by seemingly definitively concluding that the “book collection” indicated, on the one hand, that the Applicant has an interest in the subject of “undesirable behaviours with children” whilst, on the contrary, admitting the court “cannot say with certainty” [para 180 refers] that the conclusion is valid.”

The Husband went on to state that due to the lack of fact-finding exercise, therefore there was the “absence of expert opinion to guide the court’s lack of certainty, it should have more properly ordered an expert (e.g. clinical psychiatrist) report on the Applicant in this context.” And in the absence of expert evidence, there was “an error under the strictest terms where absolutely no evidence has been presented to the court to provide proof ‘beyond reasonable doubt’ of the supposed subject matter being of ‘supposed interest’.”

(11) That I have erred in law by not ordering a fact-finding exercise to establish the veracity of whether or not the Applicant’s evidence that some of the cited book collections’ titles are not as the Wife alleges. On this point, he states that the book titled “The Little Book of Abuse” were sold in retail and online under the “humour” category, and is about the use of language; and the book “Children by Desire” was a publication listed under “Medical / Health headings and sold within the “Social History” category. And that his evidence that some of the titles listed are also held in the British Library was not considered by the Judgment.

(12) That I have erred in law by not requiring single joint expert evidence that the 43 cited book titles in my Judgment, and which was described by the W’s submission as “worry examples” of “paedophilic, child pornography, and incest”; in how they are categorised, and how many of the circa 20,000 volumes would constitute a worry, and what does worry comprise and how it manifest itself and transmitted to the children.

(13) That I have erred in law by not holding the Wife’s concealment of a photo of part of the book collection a deliberate act of withholding evidence from the court.

(14) That I have erred in law by not holding the Wife’s concealment by way of non-disclosure of the UK investigations, and seriously prejudiced his case. That this was only found out via the ISIR “delivered very close to the trial date” and without time for him to conduct prior proper analysis and prepare submission / evidence.

(15) That I have erred in law by not ordering a fact-finding exercise when it came to light that the Wife had allowed their eldest daughter A, to “official interview and questioning in the UK” without his consent or his knowledge. And there was no evidence that the Wife was not properly entitled to subject this daughter, as a HKSAR citizen, to “such official channels within a foreign jurisdiction”.

(16) That I have erred in fact by not finding that the W’s concealment of the UK investigation which have “contributed to hamper the just delivery of justice”. And that I have erred in law by not requiring expert evidence by way of a Single Joint Expert Report (say, a UK counsel) on UK law and the likely effect (s) of the UK investigation against the Husband.

(17) That I have erred in fact by not holding that the Wife had, by proven evidence, committed criminal acts of deception in the UK by fraudulently creating and passing off an email address and a false phone number as if both belonging to him, and that the Wife had unilaterally prejudged the HK court’s judgment on the unheard relocation hearing by placing A into a school in the UK.

(18) That I have erred in law by treating oral submission made by him acting in person in September 2019 as if they were evidence in court which they were not, and that I have given undue credence to it. This refers to what he stated in court in an earlier direction hearing, and prior to the relocation application, which according to him, “through subsequent passage of time and circumstance should not be applied to the Relocation Application”.

(19) That I have erred in law by directing for the mirror order to be applied for “soon after” the relocation. It cannot be “after” the relocation since the HK Court would no long have jurisdiction following relocation.

(20) This was a general ground which states:

“Not forsaking the highly important new evidence [referred in 1 above], the Judgment includes a number of error of facts, contradictions and important omissions of the trial evidence that brings into question that some of the conclusions and parts of the order under the Judgment are not proven to be of a sound and substantial basis.”

(23) Here, the Husband seeks to file new evidence “pursuant to Ladd v Marshall” which provides new evidence that the Wife had not complied with the order to facilitate access and there is no criminal investigation ongoing.

There were no paragraph 21 and 22 in his Grounds of Appeal.

Husband’s “new evidence”

23.  On 23 August 2021, the Husband filed his Summons for leave to adduce new evidence for the purpose of his application for leave to appeal, supported by his previously filed 20^th Affidavit dated 26 July 2021.

24.  In it he stated that the application relates to 3 matters of new evidence:

i. That he has contacted the Hong Kong Police and obtained confirmation that there has never been any police investigation in relation to the search at the former matrimonial home on 15 August 2018 or in fact regarding any allegations against him of alleged possession of child pornography or child sexual abuse. (“Police Investigation”)

ii. That the Wife has failed to take attempts to register a mirror order.

iii. That since the handing down of the Judgment on 24 May 2021, the Wife had unduly and unreasonably obstructive towards his access with the children.

25.  With regard to the Police Investigation, the Husband on receiving the Relocation Judgment, went to the police station on 8 June 2021. Whereafter he made a statement himself of what transpired at the police station, allegedly under the recommendation of a police officer. The statement contained the following:

i. The police officer could not find record of a search warrant or a search at anytime of the parties’ then matrimonial home where the search took place.

ii. That the search can be conducted without a warrant provide the target agrees.

iii. That the police is not allowed to provide anything in writing to confirm that the police has no record of a search warrant or of any investigation concerning a search of his home, computer and phone.

He also quoted HK Governments’ “Code of Access to Information” and cited the HK Police Force Regulations, and the Code’s “guidance notes”.

26.  He stated that the Wife’s solicitors had not, as on 26 July 2021 filed a sealed copy of the Order dated 24 May 2021, which prevented him from instructing lawyers in the UK to follow up on registering a mirror order process.

27.  The Husband continued to state that access was obstructed by the Wife after the Relocation Judgment was handed down.

My findings on this New Evidence Application

28.  I will start off with the delay of the New Evidence Application. It has baffled this Court why the Summons for the New Evidence Application was not filed in good time. Although the Husband is acting in person, he did file his Leave to Appeal Summons himself on 9 July 2021, so he must have known what to do when directed to file the Summons for the New Evidence Application. Nor did he explain this adequately when given a chance to do so as he only cited “clerical oversight” as his reason for the omission without explaining what clerical oversight this was or by whom. I do not agree when he said that this has caused no prejudice to the Wife, this delay has resulted in the Wife not having a chance to respond properly to his Affidavit.

29.  That said, as this is an important basis of the Husband’s leave to appeal application, this must first be considered. The Court has the benefit of the Husband’s submissions on this application which he sent on 19 August 2021. The parties were also given a chance to make submissions during the oral hearing.

30.  Returning to the police investigation, I am of the view the Husband failed in the first limb under the Ladd v Marshall principle. The Husband had never denied that the police did come to the matrimonial home and conducted a search of the premises and his computer in around August 2018. But I cannot see how the Husband could not have obtained the aforesaid information with reasonable diligence by himself or through his legal representation, prior to the hearing in December 2020. He was making enquiry on what happened with this police search in July 2019 when he engaged a criminal law firm to make investigations. In the Relocation Judgment, I have found those investigation to be wanting; when the Husband was given a chance at trial to provide more information regarding this investigation, he failed to provide the information requested. No explanation was proffered in his 20^th affidavit or his submission as to why this subsequently conducted enquiry at the police station did not or could not have taken place earlier.

31.  For the sake of completeness, I will deal with the other two limbs under the legal principle. The second limb requires me to consider whether the evidence if given would have an important influence on the result of the case. The evidence would not have impacted on my decision for the children to be relocated back to the UK, which was made in the best interest of the children; and it was only one of many consideration I took into account when ordering supervised access (paragraph 183 of the Relocation Judgment).

32.  The third limb of the principle requires that the evidence must be such as would presumably be believed, it must be apparently credible though it need not be incontrovertible. I do believe that the Husband went to the police station, there was a police report number. But as to what transpired during the conversation between him and the police officer, it was contained in a statement made by him, the nature of which was self-serving. The Wife has reminded me that I have found the Husband’s credibility of concern, this is correct.

33.  The application of the Ladd v Marshall principle requires all three limbs to be satisfied. In conclusion, it appears that the Husband has not satisfied the tests therein and there is no basis for him to adduce the police investigation evidence in support of his application for leave to appeal.

34.  As for the Mirror Order, directions were given in the Relocation Judgment for the Wife to obtain this from an appropriate UK Court. He had stated in his 20^th Affidavit that he had not been given a copy of the draft Mirror Order, but his submission stated that he now has UK legal representation, which would no doubt assist him when the Wife makes the application in the UK. This is not a subject matter for application under the Ladd v Marshall principles.

35.  The Husband in his New Evidence Application also stated that the access after the Relocation Judgment had been unsatisfactory. The judgment gave parties liberty to apply on an urgent basis. Issues of access after the judgment is not a subject matter for application under the Ladd v Marshall principles.

36.  I therefore refuse the Husband’s New Evidence Application, as well as his application for stay in that Summons.

Application for Leave to Appeal

37.  As the New Evidence Application had been dealt with, I moved onto the Application for Leave to Appeal. As set out above, he has listed 21 grounds of appeal (the “Grounds”). The Court had received the Husband’s skeleton submission on 9 July 2021, and that of the Wife on 23 July 2021.

38.  Based on my findings on the New Evidence Application, I do not find that paragraphs 1, 2, 4, 5 and 23 of the Grounds to have any reasonable chances of success in an appeal.

39.  The Husband has made a number of references to fact-finding hearing in his Grounds, stating that if a fact-finding hearing been ordered, then certain matters would have been resolved. I have dealt with this in my Relocation Judgment at paragraph 173. To repeat this point here, I made reference to DDJ S Wong’s decision on the Husband’s application for leave to appeal her decision for turning down a fact-finding hearing. Inter alia, the Judge cited previous occasions when the Husband’s counsel raised the issue of fact-finding, but never followed up. Leave was refused and the Husband did not take this up to the Court of Appeal.

40.  I have considered all the grounds which referenced the Court erring in not ordering a fact-finding hearing, which are paragraphs 2, 3, 10, 11, 12 and 15, and of the view that the Husband is not at liberty to re-argue this basis here.

41.  Paragraph 10 of the Grounds cited that Court should have ordered a clinical psychiatrist on the Husband, the Court has no such jurisdiction and there is no merit on this ground.

42.  Referring to paragraphs 10 and 12 of the Grounds, the Husband stated that an expert should have been called on the book collection. The Husband knew full well that the book collection was at issue and calling expert on this was not done prior to the trial by his legal team.

43.  Paragraph 16 cited a similar point referring to ordering expert evidence for the effect of the UK investigation against the Husband. This investigation was revealed in the International SIR which was filed with the Court on 17 November 2020, this issue was not pursued by his legal team prior to the trial.

44.  Paragraph 17 of the Grounds claims that the Wife has committed criminal acts of deception in the UK, a point not brought up at trial.

45.  The authority regarding bringing up a new point on appeal is Flywin Company Limited v Strong & Associates Limited (2002) 5 HKCFAR 356. At paragraph 38 and 39, per Mr Justice Bokhary PJ,

“38. …. What is involved is a general principle. Where a point is taken at the trial, the facts pertaining to it are open to full investigation at the evidence-taking stage of the litigation. That is as it should be. Therefore where a party has omitted to take a point at the trial and then seeks to raise that point on appeal, the position is as follows. He will be barred from doing so unless there is no reasonable possibility that the state of the evidence relevant to the point would have been materially more favourable to the other side if the point had been taken at the trial.

39. Clearly the foundational imperative of the “state of the evidence” bar, as I propose to call it, is fairness.

…”

46.  The principle in Flywin was adopted in the Court of Appeal decision in Mimi Kar Yee Wong Hung v Raymond Kin Sang Hung FACV 10/2014 . With regard to not having raised a point at trial, Chief Justice Ma had this to say,

“43. … Where, however, both parties are properly represented (as in the present case where at every stage, H and W have been represented by leading counsel), the court can in almost every case, unless some exceptional circumstances exist, rely on the parties to look after their own interests. It would be quite wrong in such circumstances for the court to second-guess, much less override, the parties’ approach to the litigation, much of it being driven by tactical considerations.”

47.  Coming back to the Husband’s Grounds at paragraph 10, 12, 16 and 17, and having in mind the fact that he was properly represented at trial, I find that these intended Grounds do not have a reasonable prospect of success on appeal.

48.  In paragraph 14 of the Grounds, the Husband stated that I should have held that the Wife’s concealment by way of non-disclosure of the UK investigations has prejudiced him, I do not agree. My reasons had been set out in paragraphs 103-107 of the Relocation Judgment and the Husband’s attempt to re-argue this has no merits.

49.  Paragraphs 6 and 7 of the Grounds do not correctly reflect what was said in the Judgment. There are no merits on these Grounds.

50.  The Husband’s argument in paragraph 8 of his Grounds is convoluted and attempted to link two incidents together to negate him of culpability in accordance with the SIR. I have considered these two incidents fully and as part of the overall evidence of the case to arrive at my decision accordingly, I do not see any merit on this ground.

51.  I disagree with the Husband’s paragraph 18 of his Grounds as the Court is entitled to take into account all submissions he made at previous hearings. I do not see that there is any reasonable prospect of success on this intended ground of appeal.

52.  The Husband’s paragraph 20 of his Grounds is vague and lack particulars, I am therefore unable to deal with this point and cannot see any merit on this intended ground of appeal.

Conclusion

53.  The Grounds raised by the Husband do not appear to deal with the substantive issue of relocation, but directed at the decision on supervised access. As a matter of fact, while giving his oral submission at the hearing, he had said “I will not be challenging the relocation in the light of the fact that the children will have been prepared for the relocation, because I spoke to them over the last couple of weeks and Amelia was aware that she was going to the UK, so I wouldn’t have wanted to disrupt that psychologically.”

54.  A number of his Grounds seek to re-argue his case, which had already been ably conducted by a specialist matrimonial law firm and an experienced counsel.

55.  The Grounds are at times confusing as to whether I have erred in law or in fact. Based on my analysis above, there is no error of law, nor has the Husband demonstrated that I have been plainly wrong in the exercise of my discretion. There is no reasonable prospect of success in any of his intended grounds of appeal.

56.  There is also no other reasons in the interest of justice for the intended appeal to be heard.

57.  The Husband’s Summons for leave to appeal dated 9 July 2021 is refused, this includes his application for stay of the Orders I made on 24 May 2021.

Costs

58.  In the light of the Husband’s position at the oral hearing that he intends to seek leave in the Court of Appeal should I refuse his applications, I shall reserve the matter of Costs for both Summons.

59.  Liberty to apply.