WXJ v. YCK

FCMC 677/2018

[2020] HKFC 229

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 677 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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Background

1.  On 30 June 2020, this Court handed down its Judgment after trial whereby H was required to pay maintenance pending suit for W in the sum of HK$8,500 a month and interim maintenance for the child of the family in the sum of HK$7,400 a month, both to commence on 15/7/2020 and thereafter on or before the 15^th day of each succeeding month until further Order (“MPS Decision”).

2.  On 15 July 2020, H through his then solicitors Messrs. Khoo & Co., filed an Inter Partes Summons seeking :-

“1. The Respondent do have extension of time to file and serve a Notice of Appeal, if so advised, against the Judgment by His Honour Judge G. Own made on 30 June 2020 within 14 days upon the extension of legal aid, if any, for filing the Notice of Appeal.

2. The costs of this application be reserved.”

3.  On 14 October 2020, this Court handed down its Decision with full reasons dismissing H’s application for extension of time to file Notice of Appeal.

4.  Whilst H was legally represented by Messrs. A Lee & Partners as his present solicitors on record upon the assignment by the Director of Legal Aid, he chose to issue the present Summons by himself on 21 October 2020 again seeking leave to appeal the MPS Decision of this Court.  Although the Summons was handwritten in Chinese signed by H, I decided to hand down this Decision in English since H’s present solicitors on record would no doubt explain to him the contents of this Decision.

5.  As a bi-lingual docketed judge for this case, I have read and considered H’s present Summons and the attachments provided thereunder.

The present application

6.  At the bottom of the present Summons, H wrote the following :-

“離婚主案有律師代表，但上訴申請由本人處理。”

which transliterally mean that the divorce suit was represented by lawyers whereas the application for leave to appeal he acted by himself.

7.  H in the contents of the present Summons said his previous lawyers issued the abovementioned Summons on 15 July 2020 was only to seek extension of time to file notice of appeal because by that time he was seeking approval of the Legal Aid Department for him to do so.  At the end there was no positive reply from the Legal Aid Department and he could only handle the application by himself.

The Court’s Views

8.  The present application is, in my view, renewing a failed application rather than lodging a legitimate application.  This is procedurally wrong and must fail.  There is no room for H to have a “second bite of the cherry”.  My reasons set forth at paragraphs 6 to 9 of the earlier Decision dated 14 October 2020 hold good for my views on the present Summons.  I do not intend to repeat those reasons here.

9.  I only wish to add that if an application for leave to appeal was filed out of time, the correct procedure is to seek time extension at the same time (emphasis added) when filing the application for leave to appeal.  It is procedurally wrong to simply take out the usual “time-summons” without providing any draft grounds of appeal and the reasons for the delay but asked for the Court’s indulgence.  As stated in paragraphs 7 and 8 of the Decision dated 14 October 2020, the abovementioned Summons, which was inter partes, was not even listed for any call over hearing, this was odd and unusual, nor had the Court ever been informed why this was so. 

10.  Given careful consideration to all the above, I decided H’s present Summons dated 21 October 2020 must be dismissed.

11.  I decided that there should be no Order as to costs.

12.  I directed that a copy of this Decision be sent to H’s lawyers Messrs. A. Lee & Partners for their information.