LSP v. CHT

FCMC 3538/2023

[2026] HKFC 152

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 3538 OF 2023

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JUDGMENT
(Leave to appeal)
(By Paper Disposal)

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1.  This is an application for leave to appeal by the petitioner husband in respect of an order made by me on 10 April 2026 (“the Order”).  By the Order, I set aside a costs order made by me on 1 August 2025 (“the 1 August 2025 Hearing”) when the respondent wife failed to appear at the hearing on that date.

2.  At the same time when this Judgment is being handed down, I also hand down another judgment (“the Interim Maintenance Appeal Judgment”) on the petitioner’s appeal against a master’s order dismissing his application for interim maintenance payable by the respondent wife in favour of their child of the family, whom I refer to as “D”: see LSP v CHT [2026] HKFC 153.  By the Interim Maintenance Appeal Judgment, I reversed the Master’s order and made an order that the respondent is to pay the petitioner a monthly sum of $2,100 for the benefit of D.

3.  I shall continue to refer to the petitioner husband as “H” and the respondent wife as “W”.

4.  This leave to appeal judgment is related to the Interim Maintenance Appeal Judgment the reason being that the 1 August 2025 Hearing was for case management of H’s interim maintenance appeal.  To put H’s present application is proper context, it is necessary to set out the relevant chronology at [5] to [7] below.

5.  H’s interim maintenance appeal was first heard on 2 May 2025. It came to my notice that both parties had never served his/her Form Es on the other side, or for that matter, other documents as well throughout the proceedings for the reason of “reciprocity” or, to be more accurate, out of retaliation. I therefore gave the following case management directions:

1.  Parties shall lodge and serve his/her hearing bundle on or before 11 July 2025.  The hearing bundle shall be served by way of registered post.

2.  Parties do file and serve his/her affirmation of service on or before 18 July 2025. The affirmation of service shall be served by way of registered post.

3.  Parties may lodge and serve a Note on if the hearing bundle from the other side is inadequate on or before 25 July 2025.  Such Note shall not be more than 3 pages (printed one sided on A4 paper, at font 14 and 1 ½ line spacing) and shall be served on the other side by way of registered post.

4.  In the event that parties wish to adduce additional evidence pursuant to Order 58, rule 1 (5) RHC, such application shall be taken out on or before 11 July 2025.

6.  H’s appeal was adjourned to the 1 August 2025 Hearing for case management and with 15 August 2025 fixed for a 2-hour argument.

7.  On 1 August 2025, W was absent at the hearing as a result of which the hearing had to be adjourned to 8 August 2025.  It has to be mentioned that W did appear in the vicinity of the court that morning but she was not there when the case was called. Upon the ex parte application by H, a costs order of $1,500 was made against her.

8.  On 13 August 2025, W sought leave to appeal against the costs order.

9.  W’s leave to appeal was heard together with H’s interim maintenance appeal on 12 December 2025.  W’s case, in essence, was that while her office was near to the court building, she mentioned she had taken the trouble of applying for annual leave from her employer so as to enable her to attend court hearing.  I therefore gave directions that (1) W’s leave to appeal against the costs order was to be treated as an application to set aside an ex parte order pursuant to Order 32, rule 6, Rules of the High Court (“RHC”) and (2) W was to file and serve an affirmation on or before 29 December 2025 explaining in details the reason for her absence, exhibiting her application for vacation leave for the 1 August 2025 Hearing.

10.  W filed the affirmation within time on 29 December 2025 but she did not address the facts that she had been directed to deal with.

11.  On 10 April 2026, after having heard further submissions from the parties, I set aside the costs order and ordered that the costs of the 1 August 2025 Hearing and the costs of W’s application be in the cause of H’s interim maintenance appeal.

Extempore Ruling

12.  In the extempore Ruling, I noted that W had failed to file the affirmation with the contents as directed by the court, i.e. in support of her stance that she had obtained leave from her employer.  As a matter of fact, it was due to W’s ambiguity on this point on 12 December 2025 that the court had given the direction regarding the affirmation. That said, this court had checked the record. The 1 August 2025 Hearing was fixed for 30 minutes at 10:30 am.  When names were taken by the clerk of court at around 10:30 am, W was there. However, when the hearing was to start at 11:01 am, W was absent. The record then showed that she returned to court at about 11:30 am, by then the hearing had ended.  I emphasized that while I had great doubt as to whether she was at the Registry as claimed, nevertheless the record clearly indicated that she did not choose to be absent from the hearing deliberately.  For this reason, I considered that W should be successful and I set aside the costs order accordingly.

13.  Dissatisfied with the order, H lodged an application for leave to appeal.  This application is not surprising at all since this is entirely consistent with the approach that the parties have adopted throughout the proceedings.  As I have referred to the litigation conducts of the parties at [14] and [17] of the Interim Maintenance Appeal Judgment, it is not necessary to repeat the same here.

Legal Principles

14.  The relevant test governing applications for leave to appeal from the District Court is provided in section 63A(2) of the District Court Ordinance (Cap 336) (“DCO”):

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that –

(a) The appeal has a reasonable prospect of success; or

(b)  There is some other reason in the interests of justice why the appeal should be heard.” [emphasis added]

15.  The Court of Appeal discussed the application of s 63A(2) of DCO in Sunny Tadjudin v Bank of America, National Association, HCMP No 691 of 2012, unreported, 29 June 2012 at [9]:

“9. Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (SMSE v KL [2009] 4 HKLRD 125 para 17).  Furthermore, it is pertinent to bear in mind that even if there is a reasonable prospect of success on appeal, the court still retains a discretion whether to grant leave to appeal, although the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion (Ho Yuen Ki Winnie & Ors v Ho Hung Sun Stanley & Anr. HCA 391/2006, 25 May 2009, A Cheung J para 3; and HCMP 1009/2009, 24 August 2009, para 22).”

16.  Further, the Court of Appeal in ZJ v XWN, CAMP 67/2018, [2018] HKCA 436 (date of judgment: 25 July 2018) stated, at [64], that application for leave to appeal should be a filtering process and should be conducted summarily and proportionately.

H’s Grounds of Appeal

17.  It is not necessary to deal with all the points raised by H. In brief, H submitted that:

(1)  W failed to file the affirmation as directed;

(2)  W failed to provide her application for vacation leave for the 1 August 2025 Hearing;

(3)  W failed to appear at the hearing; and

(4)  W all along paid no regard to court proceedings. She was absent in two other unrelated hearings.

Discussion

18.  The basic principle is that costs are in the court’s discretion: Order 62, rule 3, RHC.  It has been said that while, in respect of costs, a court in family matters has a largely unfettered discretion to do what is just in the circumstances, that discretion must of course be exercised judicially; that is, in accordance with certain accepted principles:  F v F (No 2) [2003] 3 HKLRD 976, at [8].

19.  It was beyond doubt that W did not appear when the hearing started at 11:01 am and I did acknowledge that W had failed to file the affirmation as directed by the court.  I made myself clear that I was not satisfied with W’s explanation regarding contents of the affirmation.  In other words, I had taken all these into consideration in the exercise of my discretion.  In order for H to succeed, H has to demonstrate how I erred in the exercise of discretion which I did in allowing W’s application.  As I said, I did consider that W was at the court at 10:30 am when the hearing was supposed to start.  I found that W did not choose to be absent deliberately.  This, in my judgment, is a material point that ought to be taken into consideration.  H did not address how I erred by taking this finding into consideration.  He failed to show he has a reasonable prospect of success.

20.  For the above reasons, H’s application must be dismissed and I so order.

21.  W did not respond to the application. I consider the appropriate costs order is no order as to costs.