柯 v. 龔

FCMC 12807 / 2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 12807 OF 2013

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DECISION

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Introduction

1.  This is the hearing of a Summons issued by the Petitioner’s solicitors on 15 June 2015 on the following terms :-

“1. There be leave to file the Affidavit of Fiona Yem and its exhibits all dated the 15^th day of June2015 annexed herein;

2.The Respondent is to file his affirmation in reply within 7 days from the date of this Order; and

3.Costs on the cause.”

2.   According to the records, there was filed a document “Affidavit of Fiona Yem” together with exhibits on the same date of filing of the said Summons.  I will refer to this document as “the Affidavit”.

3.   This case was first scheduled for a Financial Dispute Resolution (“FDR”) on 27 February 2015 at 2:30 p.m.

4.  On 27 February 2015, the Court received a letter from the Respondent’s solicitors seeking adjournment of the FDR hearing that afternoon for the reason that the Respondent was suffering from serious flu.  The Respondent was advised by the doctor not to contact any other person and medical certificate for 2 days sick leave was attached.  The hearing was then adjourned to 3 June 2015 at 2:30 p.m.

5.  Practice Direction 15.11 (Financial Dispute Resolution Pilot Scheme) provides, inter alia, as follows :-

“8. The FDR hearing

a. …….

b. The judge conducting the FDR hearing shall have no further involvement with the Application, other than to conduct any further FDR hearing;

c. …….

d. …….

e.Not later than 7 days before the FDR hearing the applicant shall apprise the Court of details of all such offers, proposals and responses thereto by delivering an indexed and paginated FDR bundle containing the relevant documents, and at the conclusion of the hearing the FDR bundle shall be returned to the Applicant or Respondent as appropriate and not retained on the Court file.”

6.  There was no FDR bundle filed by Miss Yem, acting for the Petitioner claiming ancillary reliefs, pursuant to the said Practice Direction either before the initially scheduled hearing on 27 February 2015 or the re-scheduled hearing on 3 June 2015.  This Court made enquiry with Miss Yem for the reasons for non compliance with the Practice Direction.  The Court was provided with a simple and straight forward answer that no FDR bundle had been prepared. 

7.  Taking into account the prolonged delay of this case at the expense of public funds on both parties and the legal aid certificate for the Petitioner was recently discharged, also considering the fact that the Petitioner is going after a bankrupted Respondent for a relatively small amount of assets, this Court decided not to proceed with the FDR on that day and set down the ancillary reliefs claim for a trial on 2 July 2015 at 10:30 a.m. (1 day reserved).  Both parties were notified there and then that no FDR would be conducted by this Court on that day.  This was accepted by both parties.  With hindsight, this could only be arranged as there had never been filed the FDR bundle to apprise the Court the parties’ without prejudice proposals.   Further, I believe this is in accord with the spirit of the Civil Justice Reform under Order 1A rule 1 of the Rules of the High Court (“RHC”) for case management reasons and costs consideration.

The present Summons

8.  The terms of the present Summons are for leave to file the ‘Affidavit of Fiona Yem’.  Unless and until leave to do so was granted, any attempt to put it such an Affidavit is improper and should be discouraged.  Upon enquiry from this Court, Miss Yem attempted to explain by saying that the Affidavit was not meant to be filed, it was only meant to be a draft annexed.  This is, however, not the situation as the Affidavit clearly came in as a sworn document and ‘filed’ at the same time and separate from the present Summons rather than ‘annexed and form’ part of the Summons.  Had it been a draft, it would not have been sworn.  I do not accept Miss Yem’s explanation.  I also noted that there is no explanation in the Affidavit or at this hearing as to why this was so.  From the records of the last hearing on 3 June 2015 (which is 12 days before the present Summons was issued), this Court was not informed by Miss Yem that she would be seeking leave to file further affirmation.  Again from case management perspective, this is outrageous and completely affront to Order 1A rule 3 of the RHC which provides :-

“3. The parties to any proceedings and their legal representatives shall assist the Court to further the underlying objectives of these rules.”

The Affidavit of Fiona Yem

9.  Miss Yem at paragraph 1 deposed as follows :-

“1. The objectives of my Affidavit is to assist the Court to arrive at a just and fair decision on the Petitioner’s application for ancillary relief based on –

- all the information which the Court is entitled to have;

- the facts that have been properly adduced by the Petitioner and the Respondent; and

- in applying such information and facts in accordance with the correct interpretation of the law.”

10.  As said, the ancillary reliefs trial would be heard in about a week’s time (that is, 2 July 2015).  There are guidelines from the Court of Final Appeal (see LKW v. DD, (2010) 13 HKCFAR 537) as to how the Court should handle financial reliefs claim by spouses.  The 3 ‘limbs’ set out in paragraph 1 above, as I would put it this way, are nothing but stating the obvious. 

11.  I see no basis for Miss Yem to seek leave to file her Affidavit to state the obvious.  Apart from stating the obvious, I am more concerned with the use of the phrase ‘to assist the Court to arrive at a just and fair decision’ at this stage.  Reason being that the Court does not even have a chance to hear the evidence but was nevertheless ‘reminded/warned’ to arrive at a just and fair decision.  This might be close to posing an unscrupulous ‘threat’ to the Court.

12.  At paragraphs 4(a) to (k) under the sub-heading “3 proceedings and costs order”, I do not see where they lead us to in so far as the forthcoming ancillary reliefs trial is concerned.  They are all relate to the past conduct of these proceedings under 3 consecutive petitions for divorce one after the other rather than touching upon the Petitioner’s ancillary reliefs claims. 

13.  At paragraph 4(l) where Miss Yem deposed verbatim as follows :-

“(l) Further all the pleadings are in the Court file for easy access in knowing that it was the Respondent who has caused the 2 consecutive proceedings to be issued. Therefore in the DECISION dated the 24^th of December 2014, the scathing attacks on the petitioner’s handling solicitor in having 3 proceedings and the intention to have the DECISION be posted it in the legal website a permanent form and be known to the legal circle are totally unfounded and uncalled for. While the guise of not having time to peruse the court documents is a lame excuse of not fulfilling one’s diligent duty and then jumped the gun to make the unfair comments. I take great exception to them and I reserve my right to take the matter further when necessary (my emphasis).”   

14.  I see nothing in this paragraph relates to, as Miss Yem so alleged at the beginning of this Affidavit, assisting the Court.  Rather, as I read it, is no more than a discourteous statement in flagrant breach of paragraph 10.07 of the Solicitors Code of Conduct.  The Decision of this Court dated 24 December 2014 referred to by Miss Yem had not been taken to any appeal.

15.  At the final paragraphs 5(1) to (12), they are all matters on discovery or alleged non-disclosure which should either form part of the cross examination at trial or be left to the final submission stage after all the evidence were received by the Court.  The Affidavit is not the right place to tender such submission. This is also not the correct time to make such submission when the trial had not yet started.

The Respondent’s position

16.  The Respondent was represented by Mr. Sam Yeung (“Mr. Yeung”) who acted upon the instructions of the Legal Aid Department.

17.  Mr. Yeung opposed the Summons and submitted that this is simply ‘a waste of time !!’ and seek a wasted costs order against Miss Yem personally under Order 62 rule 8 of the RHC. Mr. Yeung confirmed no Affirmation of Opposition would need to be filed.  Mr. Yeung also confirmed he had already notified the Legal Aid Department of the present Summons.

Decision

18.  This Court enquired Miss Yem whether the present Summons was issued as per the Petitioner’s instructions.  The answer provided was somehow odd.  Miss Yem said she had consulted the Petitioner because the Petitioner would not have the knowledge of the procedural aspects or the way forward on the conduct of the case. 

19.  Given such an answer from Miss Yem, I believe it is Miss Yem’s decision to take out the present Summons and to put in her personal Affidavit rather than acting upon her client’s instructions to do so.  This can also be reflected by her use of the words ‘my Affidavit’ in paragraph 1 of the Affidavit and the absence of those words such as ‘filed on behalf of the Petitioner’.

20.  In my decision, the present Summons must fail and be dismissed with costs for the following reasons.

(a) Miss Yem fails to justify the need for the filing her personal Affidavit on historic events over procedure undertaken which has no relevance or significance whatsoever to the Petitioner’s rights on ancillary reliefs, save and except to increase costs; 

(b)The Affidavit does not touch upon any of those factors under Section 7 of the Matrimonial Proceedings and Property Ordinance, Cap.192, of which the Court would have to consider at the ancillary reliefs trial proper; and

(c) In any event and on a basic procedural aspect, Miss Yem could not rely on her Affidavit which was put into Court without leave as her evidence in support of the subject leave application.  This is totally unacceptable. 

21.  For the above reasons, I decided to dismiss the Summons dated 15 June 2015 with costs.

Wasted Costs Order

22.  Pursuant to Order 62 rule 8(3) of the RHC, I direct there be a separate hearing on such application to be fixed after the final determination of the ancillary reliefs of the Petitioner.

Orders

23.  I now make the following Orders :-

(a) The Petitioner’s Summons dated 15 June 2015 be dismissed with costs;

(b)A date to be fixed after the final determination of the ancillary reliefs trial for the wasted costs order application by the Respondent;

(c) Respondent’s own costs be taxed in accordance with the Legal Aid Regulations.