M v. L

FCMC 14921 of 2017

[2019] HKFC 252

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 14921 of 2017

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Decision
(Leave to Appeal)

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Present application

1.  This is the Respondent’s (“Husband”) application for leave to appeal against my judgment handed down on 22 May 2019 (“Judgment”).

2.  By the time the Husband took out the present Summons in person on 19 June 2019, he was legally represented by a legal firm. Upon enquiry, the Husband confirmed that he would act in person in the present application on 22 July 2019.   He also filed a notice to act in person to comply with the necessary formalities.

Intended grounds of appeal

3.  The background, facts and evidence of this case have been set out in the Judgment which I will not repeat here.  I shall adopt the abbreviations contained in the Judgment.

4.  In brief, both parties recognized that their marriage had broken down irretrievably. The Wife petitioned for divorce on the basis of two-year separation whereas the Husband cross-petitioned for divorce based on adultery.

5.  After trial, I handed down the Judgment.  I found that the parties had lived apart continuously for more than two years before the Wife’s Petition and I declined to conduct further inquiry on the issue of adultery.  I granted a decree nisi of divorce on the Wife’s Petition and made no order to the Husband’s Petition.   I also granted a costs order nisi that the Husband do pay the Wife’s costs of the main suit, including all costs reserved, with certificate for counsel, on party and party basis, to be taxed if not agreed (“Costs Order Nisi”).

6.  Neither of the parties has made application for variation of the Costs Order Nisi.

7.  In the present application, the Husband put forward 3 proposed grounds of appeal.  It is alleged that this court erred in: -

(1) finding the Parties had lived apart for at least two years immediately preceding the filing of the Wife’s Petition; (“2-year Separation Issue”);

(2) not granting a decree based on adultery, having ignored the birth of a daughter (“Daughter”) by the Wife with another man during the marriage of the Parties.  (“Adultery Issue”);

(3) ordering the Husband to pay for the costs of the main suits. (“Costs Issue”)

Applicable legal principles

8.  Leave to appeal shall not be granted unless the court is satisfied the appeal has a reasonable prospect of success or there is some other reasons in the interest of justice why the appeal should be heard: section 63A(2) of the District Court Ordinance, Cap 336.

9.  Reasonable prospect of success connotes the prospect of succeeding must be reasonable and more than fanciful, without having to be probable. An applicant is required to show more than just an arguable case, but he does not have to demonstrate the appeal will probably succeed. Even if the court takes the view that there is a reasonable prospect of success, it still remains a discretion as to whether to grant leave, though the fact that there is, ex hypothesis, a reasonable prospect of success would heavily influence the court in exercising its discretion: Hong Kong Civil Procedure 2019 Vol. I §59/2A/4

2-year Separation Issue

10.  On the 2-year Separation Issue, the Husband seeks to challenge this court’s finding of facts.  It is well-established principle that the appellant court is not to assume the task of reviewing the evidence and substituting the trial judge’s findings with findings of its own.  The appellant court would only reverse a finding of primary fact if it is satisfied that the finding is plainly wrong.  If not so satisfied, it would defer to the trial judge’s conclusion on fact even if in some doubt as to its correctness.  See Ting Kwok Keung v Tam Dick Yuen [2002] 5 HKCFAR 336.

11.  In gist, the Husband put forward 6 arguments in his “written statement/ skeleton submission” (“Written Submission”).  §2 of the Written Submission complains that there was no sufficient witness for proof of the 2-year separation.  This argument is groundless.  Even though only the Parties (and no other witnesses) gave evidence at trial, the Wife’s evidence was so strong that she succeeded in proving more than two-year separation before the Wife’s Petition.  Not only her case and evidence was logical, it was well supported by the contemporaneous documents and was consistent with the Parties’ conducts and the background facts.  The truthfulness of her evidence was fully examined and further tested against the evidence given by the Husband as elaborated in §§ 20 to 40 of the Judgment. 

12.  §§ 3 and 4 of the Written Submission should be dealt with together.  The Husband seeks to challenge this court’s finding of facts relating to a number of text messages of the Wife. Those text messages were exhibited to the affirmations.  The Husband had not mounted any valid challenge to the sending of them to him or the truthfulness of the contents thereof at the trial.   His present allegation that he has not acknowledged those messages lends no support to his challenge to the Judgment.  It does not render those messages non-existed or untrue.

13.  Not only that those messages were flowing in a logical sequence, they in fact intertwined with the Husband’s own text messages at the material times and fitted into the Husband’s own admission of facts.  The analysis of them was summarized in §§ 21 to 30 of the Judgment.  In summary,

(a)     the Wife’s email notifying the Husband of her moving out on the Departure Date (on 9 September 2015) mirrors the Husband’s admission of her moving out of the matrimonial home on the Departure Date at trial.  See §21 of the Judgment

(b)     the Wife’s text message dated 2 August 2016 expressly recorded the separation of the parties for almost one year.  Such message was replied by the Husband who did not deny it.  Instead, he confessed that they had not been seeing each other for long. See §§23 & 26 of the Judgment.

(c)     the Husband’s numerous text messages sent to the Wife since 15 September 2016 had met with no answer until the Wife’s text message dated 17 October 2016. She reiterated the ending of the relationship between them for long and declared her determination of not responding to the Husband’s previous and future text messages.  See §§ 24, 26 & 27 of the Judgment

(d)     the Husband’s own text messages as well as the exchange of text messages between the Husband and the Parties’ mutual friend further marked the long-term separation of the parties since September 2015.  See §§ 26, 29 and 30 of the Judgment

14.  Apart from testing the Wife’s evidence against the Husband’s evidence, the combined effect of all the evidence was also weighed in §§ 31 to 40 of the Judgment.  For reasons aforesaid, his arguments in §§ 3 and 4 of the Written Submission are unjustified.

15.  Arguments in §§ 5 and 6 are without substance.  The reasons for my ruling on those issues were set out in §31 of the Judgment with the relevant background facts stated in §§ 3 to 11 thereof.  In the First Answer (filed on 25 February 2016), the Husband pleaded that the parties had lived separately since the Departure Date.  He had at no stage sought to amend such stated fact.   It was only until 23 October 2017 the First Answer was withdrawn resulting from the withdrawal of the First Petition, and in the subsequent divorce proceedings, he changed to deny separation from the Departure Date.  No sensible explanation was offered for such conducts.

16.  His prosecution of a defence containing untrue material fact for a long period of time and his change of position on the separation date without reasonable explanation are plainly factors this Court could take into account on assessing his credibility. 

17.  For §7 of the Written Submission, the Husband seeks to re-argue the submissions on the Address Argument he advanced at trial.  Those submissions have been fully considered, the determination of which was summarized in §§ 5, 34 to 38 of the Judgment.  I have weighed the relevant evidence on each side separately as well as the combined effect of all the evidence together.  The analysis of the circumstances under which the Said Address was provided by the Wife together with the reasons as to why I accepted the evidence of the Wife but rejected the Husband’s evidence have been provided for.  

18.  After all, the Husband is unable to illustrate how his alleged errors or mistakes in the Judgment, even if they do stand as errors or mistakes (which the Husband failed to prove), are sufficiently material to undermine the conclusion of the Judgment.  His argument in §7 is of no merit.

“Adultery Issue”

19.  On the Adultery Issue, the Husband’s argument in §8 of the Written Submission is a repetition of the Husband’s argument at trial.  I have rejected it and stated the reasons for my decision in §§41 to 47 of the Judgment.  

20.  In brief, I took the view that as a decree was to be granted on two-year separation, this Court should follow the principle and approach of Grenfell v Grenfell and SJH v RJH to adopt a sensible and pragmatic attitude with a view to dissolve the marriage as quickly and as painlessly as possible.  The Court shall be loathed to allow the parties to use court time to litigate on a matter which has no impact whatsoever on the divorce itself, but merely to satisfy feelings of a party or to allow bitter recrimination against the other party.   See §§43 to 45 of the Judgement.

21.  My decision was made after full consideration of the fact that this is a childless marriage, of the Husband’s declaration of not relying on adultery in the ancillary relief application, of the birth of the Daughter was long after the separation of the Parties and could hardly amount to any “obvious and gross misconduct” that would affect either parties’ position in the ancillary relief application and of all the circumstances in this case. In the absence of any fresh argument or legal authority to dispute the legal principles or the reasons given, his argument in §8 is unmeritorious.

22.  §§9-12 of the Written Submission can be dealt with together briefly.  The Husband complained this Court to have given prejudiced comments on the Wife’s adultery, to have ignored the Wife’s burden to deny the fact of adultery, to have confused “an adultery” with “an affair”, to have misjudged the Parties’ respective intention of arguing the adultery issue. 

23.  Given this Court’s decision on declining to conduct inquiry on the issue of adultery and absent any fact-findings on such issue by this Court, there is simply no room for the Husband’s arguments, not to mention that these arguments are unjustified but to quote a phrase out of its context, or to complain basing on a misunderstanding of statements. They will not offer the Husband a valid ground of appeal.

24.  I should add that the email message of the Husband dated 6 June 2018 as mentioned in §46 of the Judgement was to illustrate that the Husband did not really care whether the decree would be granted based on 2-year separation or adultery.

Costs Issue

25.  On the issue of costs, the Husband appears to have got various costs orders in these proceedings mixed up.  In gist, he seeks to argue that this Court has erred in: -

(a)     ordering the costs of the main suit be solely paid by him for the “typical practice of the Family Court” is each party bears it’s own costs. (“Argument (a)”)

(b)     ignoring that “the Wife filed the prior petition 942/2016, which had to be withdrawn by herself due to false separation date and statements.  The learned Judge ought to have ordered those incurred costs be sole covered by the Wife”.  (“Argument (b)”)

(c)     wrongly requesting the Husband to amend the Husband’s Petition by pleading the birth of the Daughter and ordering the Husband to pay for the costs of and occasioned by the amendments.  The court has wrongly ignored that those particulars were “provided in the witness statements instead of direct ground of divorce as in 11A(2)(a) of MCO” and neither the Wife nor the court had asked for such amendments before the trial.  (“Argument (c)”)

(d) not requesting the Wife to amend the Wife’s Petition to include the new witness mentioned in her witness statements. (“Argument (d)”)

(e) ignoring “the fact the adultery petition was not ordered in the trial, with regard to the cost order.” (“Argument (e)”)

26.  Argument (a) is unsustainable.  The legal principle is that costs are in the discretion of the Court: Order 62 rule 3 Rules of the High Court, Cap 4A (“RHC”).   Apart from cases on children matters, the general principle on costs in matrimonial and family proceedings remain to be “costs follow the event”: Re Elgindata Ltd (No. 2) [1992] 1 WLR 1207; Gojkovic v Gojkovic (No 2) [1991] 2 FLR 233; see also Order 62 rule 3(2) & (2A) and 5 RHC.

27.  In this case, the Wife succeeded in proving her case and a decree nisi was granted on two-year separation as prayed by her.  She also managed to convince the court not to conduct further inquiry on the issue of adultery as sought by the Husband.

28.  On the contrary, the Husband failed in his defence and cross-petition.  When he filed the Husband’s Petition, he knew that the Parties had separated for more than 2 years and a decree nisi should be granted on the Wife’s Petition.  He however defended the Wife’s Petition and further filed the Husband’s Petition.  The Wife was dragged into the Courtroom to fight to the end.

29.  In the circumstances, the general principle that costs follow the event applied.  There were no special circumstances which departed this case from the general principle. There is no merit in Argument (a).

30.  Argument (b) is hopeless. Apparently the Husband has ignored the Order made by Deputy District Judge D. Cheung on 23 October 2017.  In the said order, the First Action (action FCMC942/2016) was ordered to be dismissed upon the Court pronounces decree nisi in the new action (the “Wife’s Action”).  The learned Judge also ordered that there be no order as to costs of the First Action.  See §4 of the Judgement.

31.  Argument (c) is bound to fail.  The Husband is silent on the fact that his amendment to the Husband’s Petition was indeed to meet the Wife’s challenge to his defective petition before the start of the trial: the sole fact upon which he sought to rely to establish adultery (the birth of the Daughter) was not stated in the Husband’s Petition. 

32.  It was in response to the Wife’s challenge that the Husband was not entitled to adduce evidence of the birth of the Daughter as stated in his witness statement, he then amended the Husband’s Petition to state such fact. The amendment was made after some consideration of the Husband and by consent.  The Parties also agreed that the costs of and occasioned by such amendment were to be paid by the Husband to the Wife.  The Wife then withdrew her challenge and the trial commenced only after the filings of the amended petitions and the related documents.

33.  Argument (d) is unfounded.  The wife has not added any new witness necessitated an amendment to her petition.

34.  Argument (e) is groundless. The Costs Order Nisi that the costs of and incidental to the main suit to be paid by the Husband covered the costs of both the Wife’s Petition and the Husband’s Petition.  The reasons are stated in §§26-29 above.

Conclusion

35.  Having considered the submissions of both parties, the proposed grounds are without merit. Since the intended appeal has no reasonable prospect of success, and there is no other reason in the interests of justice why the appeal should be heard, leave to appeal is therefore refused.  The Present Summons is dismissed. 

Costs

36.  Given both parties act in person in this application and there is no application for costs by the Wife, I make a costs order nisi that there be no order as to costs in this application. This is a costs order nisi which will become absolute if no application for variation of this costs order nisi by way of summons is made within 14 days.