HKY v. CKH by his guardian ad litem CMKG

FCMC 11078/2024

[2025] HKFC 158

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 11078 OF 2024

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R U L I N G
(Appeal Against Master’s Decision)

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1.  This appeal is fixed for 30 minutes only. This is a simple and straightforward matter. It is appropriate to give an extempore ruling after having heard counsel’s written and oral submissions.

2.  By her summons dated 30 May 2025, the petitioner applied to withdraw her petition and discontinue these proceedings.

3.  On 8 July 2025, Master Chak granted leave for the petitioner to withdraw her petition and thereupon dismissed the petition. She also awarded costs of the main suit in favour of the respondent husband, summarily assessed at $45,000. The respondent now appeals against the order.

4.  To start with, for the reason that the respondent is a person under disability, I raised the point that the requirements under rule 105(6) and (7) of the Matrimonial Causes Rules, ie, the filing of a written consent to act and a certificate by the solicitor acting for the respondent have never been complied with in respect of this divorce proceeding. I am aware that the respondent complied with the requirement in an earlier divorce proceeding (ie FCMC 14498/2023). However, it does not mean that the respondent is exempted from compliance in this divorce proceeding, which is a separate proceeding. The wording of paragraph (6) of Rule 105 is clear: No notice of intention to defend shall be given, or answered or affidavit in answer filed, by or on behalf of a person under disability unless subparagraph (7) is complied with, ie, the filing of documents. On that view, as of now, there is no one entitled to represent the respondent and therefore the petitioner’s application to discontinue cannot be said to have met with opposition. On this alone, I am of the view that the petitioner should succeed in her application.

5.  Be that as it may, for the sake of completeness, I proceed to deal with the appeal on the basis that the respondent has met the requirements under Rule 105. I must emphasise that this is not my finding. Quite to the contrary, as said above, I found otherwise.

6.  Master’s appeal before a judge is by way of actual re-hearing, and the judge treats the matter as though it came before him for the first time: see Order 58 rule 1, Rules of the High Court. The judge in chambers is in no way fettered by the previous exercise of the master’s discretion. The judge, however, is entitled, if he thinks fit, to adopt the master’s reasoning in his own judgment without setting out the reasoning himself; by so doing, the judge does not fail to exercise the discretion confederated on him: see Hong Kong Civil Procedure (2025), at paragraph 58/1/2.

7.  I now turn to the grounds. I shall deal with Ms Yu’s grounds first, then I shall turn to Ms Chan’s grounds.

8.  First, Ms Yu’s submission that the master did not have jurisdiction to grant leave to discontinue is without merit. Paragraph 4 of General Directions 1.1 states that, “… the applications to be made (and the matters which may be dealt with by) the Registrar or a Master in chambers shall include but not limited to, those set out in the Annex hereto”. It is clear that the matters set out in the Annex are not exhaustive. Withdrawal summons is a straightforward and simple matter, both as a matter of law and also as a matter of facts of the present case.

9.  I now turn to Ms Yu’s other grounds.

10.  The petitioner’s application is made under Order 21 rule 3, Rules of the High Court. I am referred to the judgment by HH Judge Pang in 王v羅 [2022] HKFC 198, (FCMC 1378/2021), where the judge summarised the applicable legal principles at paragraph 5 of his judgment. At paragraph 9, Judge Pang concluded, and I quote his words:

9. Applying the above legal principles, I take the view that in order to be successful in his application, H must show: -

(1) good reason for the intended withdrawal and discontinuance; and that

(2) no injustice will be caused to W, nor will she be deprived of any advantage which she has already gained in the litigation, which so far as possible should be preserved.

11.  Ms Yu’s second argument is, from a case management perspective, the Master should have given directions to preserve the progress of these proceedings to its maximum. She relies on Order 1A and Order 1B of the Rules of the High Court to make good her point. Despite her lengthy and forceful submissions, I am not persuaded. The wife, as the petitioner, is to have to conduct of the proceedings. Divorce proceeding is quite unlike other general civil litigation. As I said in DA v SY, FCMC 14138/2014 (date of judgment, 13 July 2017), at paragraphs 54 and 55,

54. I shall start by reminding the parties and their legal representatives that what we have here are family proceedings, to be more specific, matrimonial proceedings. Family litigation is a species of civil litigation but it has some unique features that distinguishes itself from general civil litigation. For instance, quite unlike general civil proceedings which normally deal with and adjudicate on the “rights” of the parties, family proceedings deal with not only rights but also more importantly issues on a most personal level, specifically, the “status” of the parties and one’s family or parenting relationships with other members of the family. The most common legislations that the Family Court has to deal with are, for instance, the Matrimonial Causes Ordinance (Cap 179), Guardianship of Minors Ordinance (Cap 13) and the Parent and Child Ordinance (Cap 429). Further, the “family” situation of the parties could be very dynamic, susceptible to change during and even after the conclusion of the proceedings. It is because of these unique features that family litigation often does not bring about the usual finality to be expected in other civil cases. For this reason, in line with other common law jurisdictions, Hong Kong has a family court specializing in matrimonial and family proceedings. Some jurisdictions even have their own family procedure rules.

55. Matrimonial proceedings are of great consequences since they affect essentially all aspects of parties’ family life: their marital status, the welfare of their children and their assets. The breakdown of the marriage could be emotionally taunting and stressful. Some people may regard failure in marriage is a defeat at the most personal level or the end of the world; and so try to avoid it if possible. Notwithstanding that a petition might have been taken out, a petitioner may still be ambivalent in his or her stance. He or she may still wish to have a second thought, a cooling-off period, give the spouse some time to return, or may wish to try reconciliation. Our practice actually encourages reconciliation; hence we have PD 15.3 (Reconciliation). The respondent may also need time to re-examine his or her matrimonial relationship or seek professional counselling. This is all understandable and this is what the Family Court has seen day-in and day-out. There could be a long list of reasons why a petitioner may or may not wish to let the other side know of the proceedings or take a particular course in the meantime. I venture to suggest that probably it is for these reasons that parties are not required to take out a case management summons after the close of pleadings as parties in civil litigation are required to under Order 25, RHC. Thus, it may not be appropriate to have authorities in other civil litigation disciplines rigidly applied to cases in family proceedings as if the latter are no different from other civil cases.

12.  As the outcome of a divorce proceeding would change the “status” of a person which would have substantial consequences in many aspects and for the observations I set out in DA v SY above, a petitioner should not be pushed to obtain a decree nisi, just as what a plaintiff may face in other civil proceedings. Prima facie, if the petitioner has the conduct of the proceedings as a petitioner, she may, subject to leave being granted, discontinue the petition.

13.  Master Chak rightly pointed out that there is no prejudice or injustice to the respondent. The respondent may at any time take out his own petition for divorce on the grounds allowed under the Matrimonial Causes Ordinance. Leave from the court to do so is not required. Again, Master Chak also rightly pointed out that the Form Es and the Questionnaires and actually other documents concerning financial matters filed in the present divorce proceedings may be used in the new petition if the respondent is going to take out one. I agree with the Master that it is for an ulterior motive and is an abuse of process to try to ride on the present divorce proceedings so that the respondent may file a cross petition and continue with the ancillary relief proceeding. In any event, there is nothing to prevent him from doing so by way of a new petition. The transfer or the use of papers on ancillary relief could be applied for after the respondent has taken out his own petition.

14.  Ms Yu submits that after having exchanged financial disclosures, the petitioner wife now realises she would be the payer rather than the payee in the ancillary relief proceeding. This is a long marriage. The parties were married in July 1998. I do not know if this is the case. Even if it were, it is understandable that the petitioner would make decision in the proceedings that is in her favour. On that view, I do not think it is not a good reason for her to take out a withdrawal application, although at the end of the day, she may or may not face a divorce at the initiation of the respondent. The facts of the present case are different from that in 王v羅 [2022] HKFC 198 (FCMC 1378/2021). In that case, the applicant husband forum shopped and would like to obtain a divorce in another jurisdiction. In the present case, the petitioner wife, for one reason or the other, had a change of mind, and does not want a divorce now. I do not think she can be forced to proceed with a divorce if she is unwilling to do so.

15.  I now turn to Ms Chan’s grounds. Her first ground on issue estoppel is without merit. It is clear from the transcript that Ms Fu, counsel appearing for the respondent before the Master, made it clear at the end of the hearing that the respondent did not give his consent to the application: see page 171 at J/L of the bundle. Ms Chan was present at the hearing, she must have been fully aware of what happened. For this reason, in my view, she should not have taken this point at all. In any event, I do not see how EBS v NTCD [2024] 2 HKLRD 881 supports her contention. The reason is simple. Though initially the respondent seemed to have agreed to the application, he changed his stance (which in my view, he may do so subject to the issue of costs) after the case being stood down for preparing a Statement of Costs.

16.  For the above reasons, subject to the costs issue, the respondent’s appeal ought to be dismissed and I so order.

17.  I referred counsel to the case of Wong Kwok Lin v Wong Ho, FCMC 364/1981, where His Honour Judge Bokhary (as he then was) said a petition ought to be dismissed. This is indeed what the Master did.

18.  I now turn to costs. As the entire petition together with FCMC 14498/2023 are dismissed. It is just and fair that all costs including the costs of the main suit and the ancillary relief, and all costs reserved, are to be borne by the petitioner. I am aware that there is a possibility that the documentary evidence filed in these two divorce proceedings may be transferred to or used in a new petition, if there is one. This can be dealt with at the end of the day by way of taxation or summary assessment in order to avoid double-counting. I make an order that the costs of the main suit and the ancillary relief, including all costs reserved, are to be borne by the petitioner. This is, of course, without prejudice to any previous costs order already made and without prejudice to the costs of the hearing before the Master in relation to the petitioner’s application for withdrawal.

19.  As for the costs of the hearing before the Master, it was for first appointment and the petitioner’s summons for withdrawal. As the costs of the first appointment has already been covered, I only need to deal with the costs in relation to the application for withdrawal. The Master erred in not dealing with the costs of the ancillary relief, but these costs, as an issue, was never raised before the Master. In all fairness and taking a broad-brush approach, I agree with Ms Yu that there should be no order as to costs and these are apportioned to be half of the hearing before the Master.

20.  As for the costs of today’s appeal hearing, the respondent succeeded in getting the costs of the entire proceedings but failed in the appeal against the dismissal. In all fairness, I also consider that there should be no order as to costs.