ZQA AND OTHERS v. SCC AND ANOTHER

FCMP 129/2018

[2020] HKFC 184

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 129 OF 2018

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BETWEEN

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D E C I S I O N
(Leave to appeal out of time)

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Foreword

1.  On 11/6/2019, this Court handed down its decision (“Contempt Decision”) having found the 1^st and 2^nd Respondents are in contempt of Court after trial for failing to comply with an Order of the Court dated 16/11/2017 in another set of proceedings under FCMP No.63/2017 (“2017 Order”).

2.  On 31/7/2020, this Court handed down its decision on sentencing whereby the 1^st and 2^nd Respondents were each committed to prison for a period of 3 months (“Committal Decision”).

3.  On 12/8/2020, the 1^st and 2^nd Respondents issued an Inter Partes Summons seeking :-

- An extension of time to apply for leave to appeal the Contempt Decision; and

- Leave to appeal to the Court of Appeal the Contempt Decision.

4.  In the draft Notice of Appeal attached to the Summons dated 12/8/2020, it sets out 5 grounds of appeal and seeking (a) the Contempt Decision be quashed; and (b) costs of the appeal and in the Court below be to the 1^st and 2^nd Respondents. 

5.  The 1^st Respondent’s filed his 3^rd Affirmation, which was also filed on behalf of the 2^nd Respondent, in support of the application.  In this Affirmation, there was an Appendix attached sub-divided into 6 stages containing whatsapp messages since July 2017 up to July 2020 between the 1^st Respondent and his then handling solicitor Peter Wong (whom I will refer as “Mr. Wong”) in this Decision.  Against these narrated whatsapp messages there were comments/description provided by the 1^st Respondent.  The 1^st Respondent expressly waived the legal professional privilege within those whatsapp messages save on some redacted parts appeared in the Appendix[1].  Besides, it was also attached to the 3^rd Affirmation as exhibit “SCC-24” the print-out of the whatsapp messages, including those narrated whatsapp messages appeared in the Appendix.

6.  In the 3^rd Affirmation, it was divided into 3 parts, namely, Parts A, B and C[2] classified as :-

Part A –	summary of background to the intended appeal and the key documentary evidence relied upon for Parts B and C;
Part B –	the nature and scope of the fresh evidence intended to adduce before the Court of Appeal and also, for completeness, in support of the appeal against the Committal Decision;
Part C –	the factual basis in support of the intended application to adduce fresh evidence in Part B and for extension of time to apply for leave to appeal against the Contempt Decision.

The applicable law and legal principles

7.  The jurisdiction to grant leave to appeal was contained in Section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.  It is trite that the duty of showing reasonable prospect of success falls upon the applicant for leave to appeal, namely, the 1^st and 2^nd Respondents in this case.

8.  The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he or she has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be

“probable” (see KNM v. HTF, HCMP No.288/2011 per Hon Fok JA (as he then was) at paragraph 9 of that Judgment).

9.  In the same Judgment, which also came with an application for extension of time to apply for leave to appeal, His Lordship went on to say :-

“18. As to this, it is clear that the application is 14 days, and not just one day, out of time. Further, the applicant’s assertion that she had already signed her affirmation in support before the deadline is contradicted by the fact that it is dated 24 February 2011. In any event, the attempt to lay a blame on her former solicitors, although it may be a matter of complaint as between her and them, is not a good excuse for the delay. (emphasis added) This is therefore a case in which the delay is inexcusable.

19. Where a delay is inexcusable although insubstantial (which is the situation in the present case), a party seeking an extension of time must show a real prospect of success on the merits: see Secretary for Justice v. Hong Kong & Yaumatei Ferry Co Ltd [2001] 1 HKC 125 at 129I applying Chiu Sin Chung v. Yu Yan Yan Angela [1993] 1 HKLR 225 at p.229 line 45.

20. Therefore, in the circumstances of this case, the threshold for the grant of leave is not simply the test of a reasonable prospect of success but rather the test of a real prospect of success on the merits.”

10.  In determining whether leave to appeal out of time should be given, the following factors have to be considered :-

(a) the length of the delay;

(b) the reasons for the delay;

(c) the prospects of success;

(d) the extent of prejudice that would be caused to the other party if leave is granted.

(see : Norwich and Peterborough Building Society v. Steed [1991]WLR 449 followed by Birkenhead Properties & Investments Ltd v. Leung Yiu & Ors [1998] 1 HKLRD 527.)

New Arrangement for Application for leave to appeal

11.  From 13/8/2018 and thereafter, the case management practice suggested by the High Court in the case of ZJ v. XWN[3] was adopted in the Family Court for handling applications for leave to appeal.  A Protocol was issued to practitioners and members of the public by the Principal Family Court Judge on the same day (“the Protocol”) (**As attached).

12.  Paragraphs 4 to 7 of the new arrangement under the Protocol provides :

“4. Together with the summons, the applicant for leave to appeal (“the Applicant”) has to file:

(1) A draft grounds of appeal which should be attached to the summons;

(2) Where appropriate, an affidavit explaining the reasons for any delay in support of an extension of time; and

(3) A written statement/skeleton submission in support (which should not be more than 5 pages on A4 paper (single side only) legibly printed in no less than 14 font size and 1.5 line spacing, unless otherwise directed by the Court) as to why leave should be granted.

5. All the above documents, together with a notice of this new arrangement in both English and Chinese language (a copy of which is available at the Family Court Registry) must be served on the other party or parties to the proceedings except for ex parte proceedings (unless specifically directed).  An affidavit of service has to be filed within 3 days of service.

6. If the Applicant shall fail to comply with the above new arrangement, he/she may run the risk of having his/her application struck out and dismissed on the ground of failure to prosecute the application with due diligence.

7. A party wishing to oppose the grant of leave to appeal (“the Respondent”) must, within 14 days of the service of the application, file and serve an affidavit (but only where it is necessary in response to the Applicant’s affidavit, if any) and a statement/skeleton submission in opposition (which should not be more than 5 pages on A4 paper (single side only) legibly printed in no less than 14 font size and 1.5 line spacing, unless otherwise directed by the Court) as to why leave to appeal should not be granted or why leave should only be granted on terms.”

The Grounds of Appeal

13.  In the draft Notice of Appeal, the 1^st and 2^nd Respondents set out the following 5 grounds, namely :

(a) that the 1^st and 2^nd Respondents be allowed to adduce evidence to show the non-compliance with the 2017 Order was not wilful, deliberate or contumacious;

(b) this Court failed to consider or sufficiently consider the 1^st Affirmation of the 1^st Respondent and erred in finding the Applicants’ Amended Interrogatories had not been answered or sufficiently answered;

(c) further or alternatively, this Court was wrong to infer that the non-compliance with the 2017 Order was wilful, deliberate or contumacious;

(d) this Court erred in finding that the 1^st Affirmation and/or the Unfiled 2^nd Affirmation did not purge the contempt so found by this Court; and

(e) this Court erred in finding that the 1^st and 2^nd Respondents had acted in breach of the 2017 Order without remorse or regret.  

Discussion

Whether there was compliance with the Protocol ?

14.  Apart from the Inter Partes Summons dated 12/8/2020 and the 3^rd Affirmation of the 1^st Respondent (which was also filed on behalf of the 2^nd Respondent) in support of the present application for leave to appeal out of time, there was no written statement/skeleton submission setting out why leave to appeal should be granted.  This is not only unhelpful but also contrary to paragraph 4(3) of the Protocol.  Thus this Court could only confine to reading into the factual matters set forth in the said 3^rd Affirmation.

15.  More importantly, it is also unclear as to whether paragraph 5 of the Protocol, which is mandatory, had been complied with.  Suffice to say is that as at the date of this Decision, no affidavit of service of the Inter Partes Summons and the 3^rd Affirmation of the 1^st Respondent on the Applicants’ solicitors had been filed.  The Inter Partes Summons was marked and also meant to be served on the Solicitors for the 1^st, 2^nd and 3^rd Applicants[4].  In any event, the 1^st, 2^nd and 3^rd Applicants are entitled to file an affirmation to oppose the present application had they been properly served with the Inter Partes Summons and the 3^rd Affirmation of the 1^st Respondent as per paragraph 7 of the Protocol. 

16.  Almost 4 weeks had now elapsed since the present application was filed on 12 August 2020, paragraph 6 of the Protocol readily applies.  On this alone, I am entitled to strike out and dismiss the 1^st and 2^nd Respondents’ application for their failure to prosecute their application with due diligence.  And I will do so accordingly.

17.  In the absence of any affidavit of service, it is unclear whether the Solicitors for the 1^st, and 2^nd 3^rd Applicants are aware of the present application.  As a matter of fact, no affidavit in response had ever been filed by the 1^st, 2^nd and 3^rd Applicants.

18.  For the sake of completeness, I will go into the merits of the present application for leave to appeal out of time and also the substantive grounds of appeal in the event that my decision to dismiss the present application for failure to prosecute the application with due diligence was overturned by the appellate court.

Whether leave to appeal out of time should be given in this case ?

19.  It is within the Court’s discretion as to whether justice could be served by allowing extension of time for seeking leave to appeal, given full consideration to the following factors.   

(a) The length of the delay

20.  The Contempt Decision was handed down on 11/6/2019.  The 28-day period for appeal expired on 9/7/2019.  The present Summons for leave to appeal was issued on 12/8/2020.  There was a delay of, say, about 400 days which is substantial and excessive.

(b) The reasons for the delay

21.  The reasons for the delay can be found at the following paragraphs of the 3^rd Affirmation :-

“70. We also wish to highlight that the time between the Contempt Decision and the Committal Order appeared to be unusually long for a period of more than 12 months. We had not applied our mind to an appeal, and neither were we expressly advised to pursue one, until the Committal Order for imprisonment on 31^st July 2020.

……….

73. We have been advised that the Court has power to extend the time for applying for leave to appeal against the Contempt Decision. In support of an application for time, we pray in aid of the following matters :-

(i) the matters deposed to in Part C Sections A and B above are repeated;

(ii) particularly, the Contempt Decision albeit dated 11^th June 2019 was only sent to us by Peter Wong on 22^nd July 2019, by which time the original time limit for making an application for leave to appeal had already expired;

(iii) at all material times after the Contempt Decision but before the Committal Order, Peter Wong and Ms Janine Cheung had not advised us on the time limit or merits for bringing an appeal against the Contempt Decision. This is evident from the Whatsapp messages records since 22^nd July 2019;

(iv) it was only until the Committal Order and with the benefit of advice from our present solicitors and counsel were KK So and I made aware about the lateness of an appeal against the Contempt Decision;

(v) even from a practical point of view, if, which KK So and I had at all the material times given to believe, the Court at first instance decided to impose a non-custodial sentence, there would be a realistic possibility for us not to pursue an appeal against the Contempt Decision as this would invariably meant more costs, time and an unnecessary distraction for both the continued conduct of the proceedings in FCMP 63/2017 and the administration of the estate of the Deceased;

(vi) the time between the Contempt Decision and the Committal Order was a long one spreading over 12 months;

(vii) in all the circumstances it may be seen as fair and sensible for KK So and I to adopt a wait and see approach and leave the Contempt Decision to appeal until the Committal Order.”

22.  I will now deal with each of the reasons for the delay in their order of sequence.                          

23.  For the reason under paragraph 70 of the 3^rd Affirmation, I fail to see why and how the length of time between the Contempt Decision and the Committal Order of imprisonment would have any impact or influence on the decision as to whether or not to seek leave to appeal the Contempt Decision. The 1^st and 2^nd Respondents seem to suggest that their decision to appeal or not to appeal the Contempt Decision only came to their mind when they learnt about the sanction of imprisonment imposed by the Court in July this year which was over 12 months.  In my view, had the sanction of imprisonment been a dominant factor for deciding whether or not to seek leave to appeal, it matters not when the Committal Order was passed, be it immediately after the Contempt Decision or 12 weeks or 12 months afterwards.  As a matter of fact, the lapse of time had offered the 1^st and 2^nd Respondents, who have had the benefit of reading the full reasons for convicting them of contempt, ample time and yet another opportunity to take whatever steps as may be appropriate to purge the contempt in the best way they could.  At the end, this had not been done.  Their decision to adopt a “wait and see” attitude could not be accepted as an excuse for the substantial and excessive delay.

24.  For the reason under paragraph 73 (i) of the 3^rd Affirmation, the matters advanced under Part C Sections A and B, namely, events which had happened after the trial of the Committal on 13 March 2019 and their lawyer Mr. Wong was continuously engaged (Section A); and the failure to adduce whatsapp messages at the substantive trial hearing of the Committal on 13 March 2019 (Section B) could hardly be acceptable reasons or excuse for the delay.  In my view, the 1^st and 2^nd Respondents’ decisions to continue engage Mr. Wong, rightly or wrongly with hindsight, could not be acceptable reasons or excuse for the delay.   The alleged failure to adduce whatsapp messages exchanged with Mr. Wong has nothing to do with the reasons for the delay in seeking leave to appeal.  It could not be disputed that whether to adduce the whatsapp messages at the substantive trial hearing of the Committal was a decision made with the benefit of legal advice from Mr. Wong.  I fail to see how the 1^st and 2^nd Respondents could now seize upon their decision to continuously engage Mr. Wong as an excuse for the delay. Had this been lightly accepted as an excuse, it simply opens the floodgate that litigants could place complaints on the lawyers that they had entrusted and then have a change of the legal team when they come to seek extension of time for appealing the Court’s decision.  The attempt to lay a blame on the former solicitors, although it may be a matter of complaint as between them and the lawyers, is not a good excuse for the delay[5].

25.  For the reason under paragraph 73 (ii) of the 3^rd Affirmation, that is, the time when the Contempt Decision was received by the 1^st and 2^nd Respondents had passed the time limit for seeking leave to appeal is another non-starter.  Had the 1^st and 2^nd Respondents wanted to appeal, they could have sought extension of time to do so in the way same as what they are now doing soon after (emphasis added) they received the Contempt Decision[6] on 22 July 2019[7].  In my view, they could not get away with their inactivity for the past 400 days by now shifting the blame on their then lawyer Mr. Wong.  Given the 28-day period for appeal expired on 9 July 2019[8], the delay allegedly caused by Mr. Wong was only about 13 days (between 9 July 2019 and 22 July 2019).  Apparently, the period counting from 22 July 2019 to 12 August 2020 (i.e. the date of this application for extension of time) was around 387 days which was substantial and excessive.

26.  For the reason under paragraph 73 (iii) of the 3^rd Affirmation, had they not been duly advised on the time limit and merits of bringing an appeal of the Contempt Decision, this is only a cause of complaint upon their legal representatives rather than an excuse for the delay.

27.  For the reason under paragraph 73 (iv) of the 3^rd Affirmation, that the advice as to the lateness of an appeal of the Contempt Decision only came from their present legal team also is not an excuse for the delay.

28.  For the reason under paragraph 73 (v) of the 3^rd Affirmation, the practicality of appealing the Contempt Decision had the 1^st and 2^nd Respondents been given to believe that only a non-custodian sentence may be imposed could hardly be an excuse for the delay or any concern to the Court.  Such a submission implicitly hinted that custodial sentence would provoke appeal application.  With respect, such a submission is plainly wrong, offensive and unscrupulous.  The Court would never be deterred from or threatened by any appeal application when passing the appropriate sentence on contemnor according to established legal principles and the particular circumstances of the case before it.

29.  The other submission of pursuing an appeal against the Contempt Decision would mean invariably more costs, time and an unnecessary distraction of proceedings is another lacuna.  As a matter of fact, this is exactly what is now happening.  

30.  For the reason under paragraph 73 (vi) of the 3^rd Affirmation, I repeat my decision at paragraph 23 of this Decision.

31.  For the reason under paragraph 73 (vii) of the 3^rd Affirmation, adopting the approach of “wait and see” what would be the sanction could hardly be an excuse for the delay.  This was a free choice of the 1^st and 2^nd Respondents.  No doubt both of them must have prepared to run the risk of not being able to obtain the indulgence of the Court to grant them extension of time to appeal.

32.  Taking all the above into account, I decided that there are no acceptable excuses for the substantial and excessive delay of, say, 400 days for seeking leave to appeal the Contempt Decision dated 11 June 2019.

(c) The prospects of success

33.  As said[9], I have not been assisted by the lawyers for the 1^st and 2^nd Respondents with any written statement/skeleton submissions or reference to any cases or authorities which they intended to rely upon to support the present application.  This is unusual and extremely unhelpful. 

34.  In all cases of leave to appeal applications, it is pertinent for the appellants to set out in detail and with precision in their written statement/skeleton submissions as to what error of law they envisaged having reasonable prospects of success on appeal and that leave should be readily given.   As the trial Judge giving the Contempt Decision and now to have to consider granting leave to appeal, it is wrong for me to “descend into the arena” and, by reading the grounds of appeal and my reasons for the Contempt Decision, to forecast or guess any possible line of contention that the 1^st and 2^nd Respondents may be arguing to overturn the Contempt Decision.  Such an exercise is akin to the Court undergoing a “review” of its own reasons for the decision and then to find out any flaws in the decision that are likely to be overturned or set aside on appeal.

35.  With such reminder, I will now go through each of the 5 grounds of appeal set forth in the draft produced in their order of sequence.

Ground 1

36.  Ground 1 appears to tie in an application for leave to adduce further or fresh evidence for overturning this Court’s finding against the 1^st and 2^nd Respondents that their non-compliance of the 2017 Order was wilful, deliberate and contumacious.

37.  The law on admission of further or fresh evidence when a case went on appeal are well settled.

38.  Order 59 rule 10 (2) of the Rules of the High Court provides that the Court of Appeal shall have the power to receive further evidence on questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner, but no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.

39.  In the cardinal case of Ladd v. Marshall[10], it was held that the party seeking to adduce further or fresh evidence after trial must satisfy 3 conditions, namely :-

- it must be shown that the evidence could not have been obtained with reasonable diligence for use at trial; and

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

- the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

40.  Furthermore, the Court of Appeal has adopted a strict approach in applying the conditions set out in Ladd v. Marshall (supra) for the reason that :-

“When a litigant has obtained a judgment in a court of justice…. he is by law entitled not to be deprived of that judgment without very solid grounds” (Brown v Dean [1910] AC 373 at 374 per Lord Loreburn LC) who adds that the maxim interest reipublicae ut finis sit litium applies.”[11]

41.  Having said, there are however exceptional cases where the Ladd v. Marshall conditions do not apply, or apply in a modified form. It has been held that, in the following exceptional categories, fresh evidence of pre-trial matters or events may, at the discretion of the court (emphasis added), be admitted notwithstanding the fact that the Ladd v. Marshall conditions are not satisfied[12]. The categories of exceptional cases are :-

- Appeals in judicial review proceedings;

- Appeals against committal orders;

- Appeals involving the welfare of minor children.

42.  There are altogether 9 sub-paragraphs, namely, from (i) to (ix) under Ground 1.  In a gist, they referred to their previous lawyer Mr. Wong to whom they had provided instructions and documents in a timely manner but whose inaction, lack of attention and/or negligent conduct in handling their case was unbeknown to them.  Further, Mr. Wong had not adequately advised them on the consequences of and/or the appropriate steps to take by virtue of the non-compliance with the 2017 Order.

43.  I have not been assisted further as to the underlying core issue whether serious allegation of solicitors’ inactivity and/or oversight and/or negligence, whilst proof of the same is wanting, could readily be a ground for granting leave to adduce further or fresh evidence; in particular, those further or fresh evidence per se attracted legal professional privilege (“LPP”) although it had now been waived[13]. 

44.  Even though the present intended appeal may fall within one of the exceptional cases for adducing further or fresh evidence where the Ladd v. Marshall conditions do not apply[14], or have to be applied in modified form, the court would still have to exercise its own discretion as to whether the further or fresh evidence could be adduced.    

45.  As said by Fok JA (as he then was) in the KNM v. HTF case, supra, where the delay was inexcusable although insubstantial, the party seeking an extension of time must show a real prospect of success on the merits[15]. In the present case, I have already decided against the 1^st and 2^nd Respondents that the reasons for the delay are inexcusable and the length of the delay was also substantial and excessive.  With such finding in place, together with my decision on striking out and dismissal of the present application for want of prosecution[16], the prospect of success factor must be shown to be a real one rather than merely reasonable.  Even this could be shown, which I have not so decided, leave could only be granted upon the second limb of “some other reasons in the interests of justice” under the statutory provisions[17] for granting leave to appeal. 

46.  The stand or fall of Ground 1 depends on whether leave to adduce further or fresh evidence could be granted.  Without the aid of any written statement/skeleton submission from the 1^st and 2^nd Respondents; coupled with my observation under paragraph 43 of this Decision, I am not convinced that leave should be granted for further or fresh evidence to be adduced at this stage.

47.  Having said, I decided that there is no real or reasonable prospect of success on appeal in respect of Ground 1.  

Ground 2

48.  The challenge under this Ground refers to this Court failed to consider or sufficiently consider the contents of the 1^st Affirmation together with exhibits and thereby erred in finding against the 1^st and 2^nd Respondents for not answering the Interrogatories or Amended Interrogatories.

49.  As set out in the reasons for the Contempt Decision, the 1^st Affirmation of the 1^st Respondent was clearly said to be filed in opposition to the Applicants’ claim (emphasis added).  There is no reference anywhere in this 1^st Affirmation that it was filed or intended to be filed as the affirmation to answer Interrogatories pursuant to the 2017 Order[18].  Thus, there is no basis and in fact wrong, for the Court to input another purpose for the filing of the 1^st Affirmation disregarding the clearly stated purpose of filing it by the deponent.  To do so is tentamount to the Court usurping the litigation process to the prejudice of the parties.

50.  Besides, there is also an issue that such 1^st Affirmation was filed out of time without leave to do so being sought from the Court.

51.  I find there is no real or reasonable prospect of success on appeal in respect of Ground 2.

Ground 3

52.  There are 8 sub-paragraphs, namely, from (i) to (viii) under this Ground.  The challenge made was that this Court was wrong to infer non-compliance with the 2017 Order was willful, deliberate or contumacious.

53.  Sub-paragraph (i) refers to the 1^st Affirmation in substance had provided answers to the Interrogatories although not drafted in a desired format or manner.  In my decision, such contention is completely devoid of merits.  The issue is not the way of drafting or the format used.  It was the stated purpose for which the 1^st Affirmation was filed.

54.  Sub-paragraph (ii) refers to delay in filing of the 1^st Affirmation was insufficient for drawing inference against the 1^st and 2^nd Respondents having done so deliberately. 

55.  Under the 2017 Order, the 1^st Affirmation was required to be filed within 28 days from the said Order, that is, the time would be expired on 14 December 2017[19]. The 1^st Affirmation was only filed on 15 May 2018[20], that is, a delay of some 151 days (between 14/12/2017 and 15/5/2018).  The fact that there was never any application for time extension or any reason put forward for not applying for leave to do so out of time is suffice to support the finding of deliberate or intent.  The 1^st and 2^nd Respondents could not simply take the law into their own hands and do whatever they want and whenever they like.

56.  The contention under sub-paragraph (ii) must fail.

57.  Sub-paragraph (iii) must fail.  Since the 2^nd Affirmation had not been filed, let alone that leave to do so would be required but had never been obtained, the contention that the contents of such “unfiled” 2^nd Affirmation were substantially the same as the 1^st Affirmation (which was filed but without leave to do so out of time) becomes a non-starter.  As said in the Contempt Decision[21], this Court could not even consider the “unfiled” 2^nd Affirmation. The need of the 2^nd Affirmation was also in doubt if the 1^st Affirmation was said to have already provided answers to the Interrogatories.  There is also the unexplained fallacy as to the purpose of the “unfiled” 2^nd Affirmation.

58.  On sub-paragraph (iv), reliance and acting upon their own legal advisers had no impact on this Court’s finding of the 1^st and 2^nd Respondents’ conduct being willful, deliberate and contumacious unless the legal advisers had been found to be unethical or negligent by their governing bodies, say the Law Society, or the Court.  So far this had not happened in this case.

59.  On sub-paragraph (v), the lapse of time between affirming the 2^nd Affirmation and the date of service of the Amended Interrogatories and the substantive trial hearing on contempt on 13 March 2019 had no impact whatsoever, given the fact that the 2^nd Affirmation had never been filed with the Court or properly served on the 1^st, 2^nd and 3^rd Applicants who administered the Amended Interrogatories.

60.  The contention under sub-paragraph (v) must fail.

61.  On sub-paragraph (vi), the absence of knowledge of the 1^st and 2^nd Respondents that the 2^nd Affirmation was not formally filed or properly served, after it was affirmed on 10 September 2018 and before the substantive trial hearing on contempt on 13 March 2019, was neither here nor there.  Reason being that such 2^nd Affirmation had never been accepted as evidence to prove compliance with the 2017 Order[22].  That said, no inference of non-compliance had been drawn as per the contention under sub-paragraph (vi).  The conclusion that was drawn was that there was no compliance.

62.  On sub-paragraph (vii) as to the penal notice and lack of legal advice on consequences of non-compliance, I repeat paragraphs 39 to 47 of my Reasons for the Contempt Decision.

63.  The contention under sub-paragraph (vii) must fail.

64.  On sub-paragraph (viii), it was wrong to say an inference was drawn on the mere fact of lapse of time alone.  From the Reasons for the Contempt Decision, it was clear that the finding made or inference drawn came from all factors properly considered collectively rather than upon an inference drawn from an isolated fact of lapse of time.

65.  The contention under sub-paragraph (viii) must fail.

66.  I find there is no real or reasonable prospect of success on appeal in respect of Ground 3.

Ground 4

67.  The 1^st Affirmation was specifically stated and filed for opposing the claim by the 1^st, 2^nd and 3^rd Applicants rather than in compliance with the 2017 Order.  At the time of filing the 1^st Affirmation, which was 15 May 2018, there was no finding of contempt against the 1^st and 2^nd Respondents yet.  Hence. it was wrong for the challenge under this Ground that the Court was wrong to find the 1^st Affirmation did not purge the contempt found as per the Contempt Decision (which was dated 11 June 2019).  The 1^st Affirmation preceded the Contempt Decision.

68.  The “unfiled” 2^nd Affirmation had never been accepted as evidence for the want of filing and service, let alone leave to do so had never been obtained.  Thus, the challenge under this Ground must fall apart.

69.  I find there is no real or reasonable prospect of success on appeal in respect of Ground 4.

Ground 5

70.  This Court having found in the Contempt Decision that the non-compliance was one of “no answer was provided” rather than a case of “insufficient answers were provided”[23].

71.  I fail to see how a complete defiance of the 2017 Order for not providing any answers could not be said to be without remorse or regret.

72.  I find there is no real or reasonable prospect of success on appeal in respect of Ground 5.

Concluding Views

73.  Considering all the above, I find that none of the 5 grounds of appeal had any real or reasonable prospects of success on appeal. 

(d) The extent of prejudice to the other party

74.  In my written Decision on sentence dated 31 July 2020, I said the following :-

“21. In my decision, there was inordinate and excessive delay on the part of the 1^st and 2^nd Respondents to comply with the 2017 Order. Given the fact that there was a lapse of some 20 months (since December 2017 when the answers should have been provided), coupled with the fact that both the 1^st and 2^nd Respondents were legally represented throughout, this is a case where justice calls for appropriate sanctions be imposed upon the contemnor who persist in their continuing breaches of court orders.

22. The 2017 Order was granted in the FCMP 63/2017 proceedings whereby the three Applicants therein, also the same Applicants in these proceedings, who are the mother and 2 minor children at the age of 9 and 6, seeking financial reliefs under the Inheritance (Provision for Family and Dependants) Ordinance, Cap.481, out of the estate of the late SYC. I am minded to say the inordinate and excessive delay on the part of the 1^st and 2^nd Respondents posed serious prejudice to the three Applicants in their proceedings in FCMP 63/2017.”

75.  Given my views and observation above, I have no reservation to say that the extent of prejudice caused to the three Applicants if leave to appeal out of time was granted to the 1^st and 2^nd Respondents would be significant and repugnant to any sense of justice; if not disastrous to the three Applicants.

76.  Taking into account the contumacious attitude and litigation conduct of the 1^st and 2^nd Respondents, I am satisfied that if leave to appeal out of time was granted, the three Applicants (that is, the mother and the 2 children of the age of 6 and 9) in FCMP 63/2017 who are also the same Applicants in these proceedings, would be seriously prejudiced in their claim for financial reliefs which no Court would encourage or tolerate.  If such litigation conduct was to be condoned, I also believe that it is in contravention to the spirit and underlying objectives of the Civil Justice Reform (CJR).

Any exceptional circumstances ?

77.  To complete the picture, I have also considered whether there are any exceptional circumstances where justice calls for leave to appeal, or granting extension of time to do so, be given to the 1^st and 2^nd Respondents.

78.  Given careful consideration, I do not find any exceptional circumstances exist in the present case.

Costs

79.  Since there is no evidence before this Court that the 1^st, 2^nd and 3^rd Applicants had been served with this application and no affirmation of opposition had ever been filed by them, I believe it is fair and reasonable that there should be no Order as to costs of this application.

Orders

80.  I now make the following Orders :-

(a) The 1^st and 2^nd Respondents’ Summons dated 12 August 2020 for leave to adduce further or fresh evidence and leave to appeal out of time be dismissed; and

(b) There be no Order as to costs of this application.

[** Attached Protocol dated 13 August 2018]