TJB or JBT v. DMT

FCMC 9861/2014

[2021] HKFC 224

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 9861 OF 2014

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R U L I N G

( Leave to Appeal )

( Paper Disposal )

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Background

1.  The judgment handed down by me on 20 September 2021 (“the Judgment”) was for the resolution of the parties’ ancillary reliefs in their divorce proceedings.  The main order I made is that the 9 pieces of land owned by the parties and located back in their home-country Nepal are to be sold in open market within 6 months and the proceeds of sale are to be divided in the proportion that the petitioner husband is to have 40% and the respondent wife 60%.

2.  Dissatisfied with the Judgment, the respondent applied for leave to appeal. 

3.  In this Ruling, I shall, for the ease of reference, continue to refer to the petitioner as “the husband” and the respondent as “the wife”.  I shall also adopt the same nomenclature and abbreviations used in the Judgment.

4.  As I have already set out the parties’ case and their facts in the Judgment, I do not propose to repeat them here.  This Ruling has to be read alongside the Judgment.

Applicable Legal Principles

5.  The applicable legal principles under which leave to appeal is to be granted pursuant to section 63A(2) of the District Court Ordinance (Cap 336) is well settled.  In brief, leave should not be given unless the court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful”.

The Draft Grounds of Appeal

6.  The wife has 3 draft grounds of appeal. 

(1)The court has no jurisdiction

7.  The wife submits that when making the order for sale, I failed to consider the laws of Nepal because according to the laws of Nepal both the husband and the wife could not sell the lands without the consent or agreement of their children.

8.  This ground can be disposed of right away since it is not a new issue or argument.  I have clearly dealt with this issue at [25] of the Judgment where I said,

25.  The wife claimed in her Opening that the laws of Nepal do not allow division of assets just between the husband and the wife.  There is, however, not any expert legal evidence in support of this assertion nor has there been any application in this regard.  She also claimed their children, who had financial contribution, do not allow the division of the assets.  The assets must be divided amongst them and their children.  In this regard, it should be noted that the children, who are on their mother’s side, are aware of the present proceedings but they have not made any application for appearance.

9.  It is of no use for the wife to just repeat her submissions here. I do not find any merit on this ground. 

(2)Wrong to assume that the Husband would not be able to work

10.  The wife submits that it was wrong for me to have just assumed that the husband would not be able to take up any employment due to his old age even though he gave evidence that he had a job offer.

11.  The wife is either taking what I said out of the context or she simply misunderstood what I said.  The husband was nearly 74 years old at the time of the Judgment. I did not say he did not have any earning capacity; indeed, I found he had some.  What I said at [61] was,

61.  I take the view that the husband may be able to work for another year or so, yet this cannot last for long.  The objective fact is he has long passed the normal retirement age.  I have no doubt he has very limited earning capacity.  Very soon he would have to rely upon the British Army pension that is now standing at about $4,600 per month and the financial resources that the family amassed during their heyday.

12.  Again, there is no merit in this argument. 

(3)Failed to guide/instruct the wife

13.  The wife complains that I failed to guide / instruct her on what the effect would be if she chose not to give evidence at trial.

14.  This assertion is simply incorrect.  At [27] of the Judgment, I said,

27. The wife elected not to give oral evidence at the trial due to, as claimed, her health issues. I accept the wife adduced some medical evidence in her narrative affirmation such as her Esophago-Gastro-Duodenoscopy Report and the Ultrasound Report and that she underwent an abdominal hysterectomy in Nepal in October 2019.  Yet, I fail to see how the medical evidence could support her assertion that she was not fit for giving evidence.  The wife remained firm in her decision not to give evidence even after I had explained to her that in the absence of her oral evidence, the truthfulness of her affirmation evidence and the veracity of her case could not be tested by way of cross-examination.  In the circumstances, little regard should be given to her affirmation or any statements in the guise of evidence: see LWTC v PTH and Anor, FCMC 1648/2011 (unreported, 28 May 2012) at [47] to [49]. 

     (emphasis added)

15.  It should not be forgotten that throughout the trial the wife had her son acting as her McKenzie friend and that her affirmations and documents were obviously well prepared by someone for her. It must have been her conscious and calculated decision not to give evidence at trial.

Order

16.  For the reasons aforesaid, there is simply no reasonable prospect of success on the wife’s intended appeal.  Her application must be dismissed and I so order.

Costs

17.  There is no reason why the wife should not bear the costs of this application.  The husband’s solicitors have attached to their submissions a Statement of Costs for the purpose of summary assessment.  I consider this is the appropriate approach.  However, the husband is legally aided.  Before I make an order nisi on costs, the husband’s solicitors should lodge and serve a written acknowledgment waiving the right to any further sum of money including common fund costs in respect of the costs of the application within 7 days: see Order 62, rule 9C(1)(b), Rules of the High Court.