DB v. DMA

CAMP 311/2023, [2024] HKCA 514

On Appeal From [2023] HKFC 137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 311 OF 2023

(ON AN INTENDED APPEAL FROM FCMC NO. 1006 OF 2021)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

I.  Introduction

1.  By a judgment dated 21 July 2023 (‘the Judgment’), Deputy District Judge S. Allison made orders for ancillary financial relief in favour of the petitioner wife (‘the wife’) against the respondent, her former husband (‘the husband’). The wife is legally represented and the husband acts in person.

2.  The husband applied to the Judge below for leave to appeal. By a decision dated 7 September 2023, the Judge refused leave.

3.  By summons dated 20 September 2023, the husband renews before this Court his application for leave to appeal against the Judgment, for a stay of execution of the Judgment and for injunctive relief. We will deal with this application on paper.

II.  Background

4.  The husband was 47 years old and the wife was 36 years old at the hearing before the Judge. Before they came to live in Hong Kong they lived in Guinea, West Africa and were married there in March 2005. They have four young children, two of whom are autistic. The wife has been the carer of the children. Based on the wife’s petition for divorce, the decree nisi was granted on 28 January 2022. By a consent order dated 25 July 2022, the wife was granted sole care and control of the four children while custody was jointly granted to the husband and wife.

5.  The Judge held that the case is a ‘needs’ case in that the financial situation of the parties could only satisfy the needs of the parties. Despite the husband’s claim that he only earned $25,000 per month, the Judge held that the husband had not been frank and truthful with the disclosure of his financial resources and she drew adverse inference against him. She found that his income was not less than $45,000 each month. The Judge found the wife had no earning capacity. She was receiving Comprehensive Social Security Assistance of $8,303.58 (‘CSSA’) per month. This would cease if she was to receive maintenance that exceeds $18,400 per month. The Judge held that, given the husband’s income and earning ability, it was not correct for the family to rely on CSSA as a primary source of income of the family. The Judge ordered the husband to pay the wife periodical payment of $5,400 per month for herself and $22,400 per month (or $5,600 per child for the children).

III.  The principles

6.  Under section 63A of the District Court Ordinance (‘DCO’) (Cap. 336), leave to appeal shall not be granted under section 63A of the DCO unless this Court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice that the appeal should be heard.

7.  The relevant test of whether an appeal has a reasonable prospect of success under section 63A is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than ‘fanciful’ but which do not need to be shown to be ‘probable’: KNM v HTF(HCMP 288/2011, 7 September 2011) at [9].

IV.  Grounds of Appeal

8.  By the husband’s draft Grounds of Appeal dated 18 September 2023, his challenge to the Judgment can be broadly grouped into the following :

1)  The Judge neglected to give consideration to the unique merits of the case and her order had no connection to the evidentiary submissions tendered before the Court (‘Ground 1’);

2)  The Judge demonstrated a lack of seriousness and comprehension of the case by the errors contained in the Judgment, the errors of which were unsatisfactorily rectified by the corrigendum subsequently issued by the Judge on 16 August 2023 (‘Ground 2’);

3)  The Judge erred in issuing an order exceeding the husband’s actual income and did not give due consideration of his basic needs as demonstrated by the documentary records (‘Ground 3’); and

4)  The Judge ‘fabricated evidence’ in favour of the wife (‘Ground 4’).

V.  Our view

9.  At the outset, this Court notes that all the appeal grounds are attacks on findings of fact made by the Judge after the Judge has evaluated the evidence adduced before her.

10.  Where the grounds of appeal are challenges to findings of fact made by the Judge after evaluation of the evidence adduced before him, unless the applicant can show that the findings are plainly wrong, or some error such as the judge misunderstood the evidence, or failed to appreciate its effect, or overlooked some documentary evidence, or other indisputable evidence, which should have compelled him to a different conclusion, the appeal court will not interfere with those findings of fact.

11.  Similarly, where the appeal is against the exercise of discretion of the judge below, in order to obtain leave the applicant would have to show that he has an arguable case with reasonable chances of success that the decision exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong, and not merely that the appellate court would prefer a solution which the judge had not chosen.

12.  Apart from stating the grounds of appeal, the husband has unhelpfully failed to elaborate his reasons in his statement or affirmation in support, which merely copied the assertions in the draft Grounds of Appeal. As a result, this Court is unassisted with further particularisation of his complaints or identification of the evidence sought to be relied on by the respondent. If improper admission or rejection of evidence is alleged, the evidence must be specified.

13.  Ground 1 concerns merely vague assertions. The husband has failed to identify the evidence relied on or provide any particularisation of the basis upon which his claims that the Judge had failed to give due consideration to his case. This Court wholly rejects this ground as having no reasonable prospect of success.

14.  Ground 2, as this Court understands it, relates to the husband’s complaint regarding the Judge’s errors in the Judgment, which resulted in a corrigendum rectifying the errors.

15.  As shown in the corrigendum, there were two errors made by the Judge: 1) The Judge erred in considering that the wife had a medical condition of ‘significant global development delay, severe language impairment and autism spectrum disorder’ when she did not. In fact it is the younger daughter who is autistic has such problems (‘First Error’); 2) the Judge erred in confusing the identity of the twin son who has autism; she mistakenly referred to the younger son when it was the older son who has autism (‘Second Error’).

16.  The question thus is whether the husband has a reasonable prospect of success in claiming that such errors have led the Judge to come to incorrect conclusions in her Judgment, or whether the mistaken evidence should have compelled the Judge to reach a different conclusion. Reading the Judgment as a whole, we do not consider the husband has a reasonable prospect of success in making such a claim.

17.  In relation to the First Error, the Judge mentioned the mistaken medical condition as part of the introduction of the wife’s background in [3] of the Judgment. When considering her needs or ability to seek paid employment in [68] to [70], the Judge plainly did not take into consideration the mistaken medical condition as part of her decision regarding her earning capacity or needs. We do not consider that the husband has a real prospect of success of overturning this finding.

18.  In relation to the Second Error, the mistaken confusion between the elder and the younger son falls under the slip rule jurisdiction under Order 20, rule 11 of the Rules of the High Court (Cap. 4A). It is clear throughout the Judgment that the Judge considered that one of the two twin boys had autism. We do not consider that the husband has a real prospect of success of claiming the Second Error led the Judge to arrive at any incorrect conclusion in her judgment.

19.  Ground 3 relates to the husband’s complaint that the Judge failed to take into account his actual earnings. He contends that his bank statements and MPF records demonstrated that his income falls significantly lower than an amount which enables him to meet the periodical payment, and alleged that his monthly earnings are only $25,000.

20.  These assertions have already been considered and were rejected by the Judge. After consideration of his evidence at trial, his statements and documentary evidence (including his MPF and bank statements), the Judge found that he has not been truthful about his financial condition. The Judge took into consideration factors such as his failure to provide satisfactory evidence and documentary evidence regarding his alleged loans taken out to cover the family’s expenses (Judgment [41]-[53]); his unsatisfactory evidence regarding his income from the company GDL (Judgment [54]-[59]), and his own evidence regarding his ability to pay (Judgment [64]). The Judge held that the husband conducted his business entirely in cash, and he had undisclosed income or had the ability to manipulate his cash flow from his money exchange business to meet the family expenses (Judgment [65]).

21.  The present ground of appeal does nothing but repeat the assertion made before the Judge. It is not a ground of challenge to claim that by making such a finding the husband would suffer financially. The husband has failed to identify how the Judge erred in any of her findings of fact such as whether and what part of his evidence was overlooked or misunderstood, nor has he pointed out how her exercise of discretion above is plainly wrong or exceeds the generous ambit within which reasonable disagreement is possible. We do not consider that the husband has a real prospect of success of overturning the findings of fact and exercise of discretion by the Judge.

22.  Ground 4 again concerns mere vague assertions. The husband has failed to identify the evidence allegedly ‘fabricated’ by the Judge. Alleging fabrication is a serious complaint and requires particularisation. It is not enough for the husband to merely point to the previous draft Notice of Appeal filed before the District Court dated 1 August 2023[1]. In any event, there does not appear to be any allegation of fabrication in the draft Notice of Appeal dated 1 August 2023. We do not consider that the husband has a real prospect of success of succeeding on this ground.

23.  For reasons above, we conclude that the husband’s intended appeal does not have a real prospect of success. The husband has not put forward any basis for there to be some other reason in the interests of justice that the appeal should be heard. It is not enough for the husband to assert that he would encounter difficulty in complying with the order.

24.  As the husband fails in his application for leave to appeal, there is no point in granting any stay of execution of the Judgment or injunctive relief.

VI.  Conclusion

25.  We therefore dismiss the husband’s application. We are of the view that the application is totally without merits. We will, pursuant to Order 59, rule 2A(8) of the Rules of the High Court, further order that the husband is not allowed to apply for a hearing to reconsider his application.

26.  We would make an order nisi that the husband is to pay the costs of the application to the wife, to be taxed if not agreed.