CSFK v. HWH

FCMC 15072/2013

[2024] HKFC 112

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 15072 OF 2013

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J U D G M E N T
( Leave to appeal )

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1.  This is the application taken out by the petitioner (“W”)  for leave to appeal out of time against my Decision handed down on 19 December 2022 (“Decision”), in which I ruled that the Memorandum[1] is admissible at the trial of the ancillary relief and ordered, inter alia, that the terms of the Memorandum be considered by the Court pursuant to section 7 of the Matrimonial Proceedings and Property Ordinance Cap. 192 at the trial of the ancillary relief of W.

2.  W raised that the Decision differs from the decision uploaded to the Judiciary’s website (“Decision Uploaded”)  in the way that the Decision did not contain §§ 19 and 20 of the Decision Uploaded, which are set out as follows:

“19. In CMJF v MGF [2019] HKFC 171, the husband was seeking recusal from HH J G. Own who refused his application and said:

“25.  The Heads of Agreement eventually signed by the parties containing terms discussed or negotiated, although falling short of a global settlement on all aspects of W’s ancillary reliefs, should be taken as the parties’ respective positions somewhat akin to open proposals before the Court.  The notion of open proposals has been clearly set out under Paragraph 11 of PD 15.11.  There is no issue of this Court being possessed of information which are privileged or confidential to warrant recusal from hearing the trial of W’s ancillary reliefs.

26.  H by seeking the trial of W’s ancillary reliefs to be set down before a different Judge, he in essence is seeking my recusal in these proceedings save and except to hold one further FDR as prayed for in his Summons.

27.  I have considered those well settled grounds justifying recusal, such as presumed and apparent bias and perception of lack of impartiality, I find none of those grounds exists in this case which call for recusal.  In any event, Mr. Side in his submissions at this hearing and his Note had not been able to identify any of those grounds for seeking recusal save and except purely on the procedural aspect of there was an “Extended FDR” before this Court which contention had, for those reasons aforesaid, failed completely.” (emphasis added)

20. In my view, the Memorandum is at least “somewhat akin to open proposals before the Court” under §11 of PD 15.11, if not a settlement agreement, to which “no privilege shall attach or be capable of attaching”.” 

3.  For unknown reasons, the Decision differs from the Decision Uploaded, but I truly believe that it was the fault of my clerk who was responsible for arranging to hand down the hard copy of the Decision to the parties on 19 December 2022 and then to upload its soft copy to the Judiciary’s website.

4.  I wholly agree that this situation is unacceptable.  However, when the legal representation of W came to notice the difference, they shall immediately alert my clerk and sought clarification from the court without delay.  In any event, §§ 19 and 20 of the Decision Uploaded are just another line of reasoning based on the case CMJF v MGF.  The outcome of my ruling would be the same even if CMJF v MGF is not relied on.

Legal principles

5.  It is well settled principle that the appropriate tests when considering whether leave to appeal out of time ought to be given are :-

(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.

6.  Where the delay is inexcusable, the applicant faces a higher threshold, ie the party must show a real prospect of success on merits and not simply the test of a reasonable prospect of success. The applicant would need to demonstrate a strongly arguable case[2].

7.  Section 63A(2)  of the District Court Ordinance also provides that for leave to appeal to be granted, the intended appeal should have a reasonable prospect of success or there should be some other reasons in the interest of justice why the appeal should be heard.

W’s Delay

8.  In my view, the 1-year delay on the part of W is both substantial and inexcusable.  The medical issues of the younger daughter do not prevent W’s present lawyers, who were also representing her at the hearing on 3 August 2022 before me, from giving proper legal advice to her and lodging the leave to appeal application on her behalf. 

9.  Besides, I accept the 12^th affirmation of H filed 20 December 2023 that the main reason for the delay was that W was awaiting the result of her settlement negotiations with H.  This is certainly not a good and excusable reason.

10.  Although parties’ counsel did not make any submissions in respect of the extent of prejudice that would be caused to H if leave is granted, I would say that this case has been dragged on for over 10 years and the ancillary relief proceedings are still not yet set down for trial.  Indeed, I had directed the parties to do so in the Decision.  It is extremely undesirable.

Ground 1

11.  W argued that the Memorandum was made in the course of FDR.  However, §§ 30 and 64 of the Court of Appeal Judgment in CSFK v HWH [2020] 2 HKLRD 586 states as follows:

“30.The 1^st FDR hearing came before His Honour Judge Bruno Chan on 15 March 2017.  That hearing started at 10:39 am and ended at 4:32 pm.  No agreement was reached before the adjournment.  In the course of the hearing, a document was produced but it had not yet been signed as there were still some outstanding issues.  In light of the remaining differences between the parties, the judge urged the parties to continue negotiation in the court building to try to come up with a signed document within the day.  He also told the parties he had other engagement and therefore would not be able to deal with the matter.  The Court ordered the FDR hearing be “adjourned pending the parties to file a Consent Summons”. There were negotiations after the adjournment of the 1^st FDR which resulted in H (who was not legally represented)  and W (who was legally represented)  signing a memorandum.

….

64.  Whilst there are instances where a judge can direct that an imperfect order announced at a FDR be perfected (as in the case of Rose v Rose), the present case is not such situation.  On 15 March 2017, Judge Bruno Chan did not make any order.  The memorandum was only signed after the hearing.  It is crystal clear from Judge Bruno Chan’s observations at the hearing on 21 June 2017, he did not endorse the memorandum as an order of the court.” (emphasis added)

12.  It is very clear that in the course of the 1^st FDR hearing before the retired Judge Bruno Chan, the Memorandum had not yet signed.  Therefore, it must be only signed and made after the conclusion of the 1^st FDR hearing when the retired Judge Bruno Chan ordered the FDR hearing be adjourned pending the parties to file a Consent Summons.

13.  The retired Judge Bruno Chan did actively involve in the process of negotiation during the 1^st FDR hearing but not after 4:32 pm when the parties were directed to continue the negotiation outside the court room and within the same building.  Eventually, the Memorandum was signed by the parties without any involvement of the learned judge.

14.  W indeed tried to argue that the entire FDR process was only concluded at the end of the 3^rd FDR hearing on 13 February 2018 before DDJ J Chow since the 1^st FDR hearing was extended to the 2^nd FDR hearing and the 2^nd FDR was extended to the 3^rdFDR hearing.  However, my interpretation of §8(c)  of PD 15.11 is that the wordings only protect and cover the evidence of anything said or of any admission made in the course of the hearing, but not the evidence made between the FDR hearings when the FDR judge did not get involved.

15.  The Memorandum was undoubtedly made between the 1^st and 2^nd FDR hearings when both ofthe retired Judge Bruno Chan and DDJ J Chow did not get involved.

16.  This ground has no real or reasonable prospect of success.

Ground 2

17.  W also argued that I erred in law by characterising the Memorandum as a mere general settlement agreement in §17 of the Decision.  W simply fails to cite any legal authorities to support her proposition.  Even if FDR is unique in nature, I do not see that §8 of PD 15.11 has the effect of changing or altering the general legal principle on privilege.  I consider that this ground has no real or reasonable prospect of success.

Ground 3

18.  W argued that I misread the commentary in §76 of the Court of Appeal Judgment of CSFK v HWH [2020] 2 HKLRD 586.

19.  In my view, although the admissibility issue of the Memorandum is not an issue in that appeal, the Court of Appeal was clearly aware of the FDR context, especially it said in §76 “….Otherwise, it would infringe the principle of confidentiality of the FDR process and the FDR judge would trespass onto the process of substantive determination of the dispute…” 

20.  It is implicit in §76 that the Memorandum must be admissible before the trial judge can determine the substantive issue “whether the memorandum should be converted into a court order”.

21.  This ground has no real or reasonable prospect of success.

Ground 4

22.  W argued that the court introduced a new finding in §20 of the Decision Uploaded, which falls outside the Decision.

23.  In my view, §20 is my another reasoning rather than a new finding based on CMJF v MGF, which is one of the authorities cited by W’s counsel at the hearing on 3 August 2022 before me.  As said above, the outcome would be the same even without the new finding or reasoning in §20.

24.  This ground has no real or reasonable prospect of success.

Ground 5

25.  W argued that I erred in finding of W’s waiver of privilege.  W’s counsel made no submission but simply relied on the draft Notice of Appeal.

26.  I accept H’s counsel’s submission that W’s submissions through the draft Notice of Appeal shall be disregarded since legal submissions and Notice of Appeal serve different purposes and the appellant shall not try to put all or most of the submissions in the Notice of Appeal.

27.  W’s hearing note dated 11 May 2021 and her List of Disputed Issues filed on 11 May 2021 did not appear in the hearing bundle for the hearing on 3 August 2022.  I have no opportunity to consider these document for the purpose of H’s Rule 6 Summons[3].  W did not take out any application to adduce fresh evidence.

28.  Indeed, W’s former lawyers, LCP solicitors, had disclosed the content of the Memorandum in its entirely without marking “privileged” in the open letter dated 22 August 2017 to the court.

29.  This ground has no real or reasonable prospect of success.

Conclusion

30.  To conclude, W has failed to demonstrate any real or reasonable prospect of success in her intended appeal and there is no other reason in the interests of justice why the appeal should be heard.  Her application for leave to appeal out of time should be dismissed.

31.  Regarding the question of costs, there is no reason why costs shall not follow event.  H has lodged his submission together with the 12^th  affirmation of H and statement of costs but I am of the view that some of the items in the statement of costs are excessive, such as work done in Part C1 (attendance on client), Part D2 (perusal of documents)  and involvement of another counsel (Mr Harry Chan)  in Part E.  I order that costs of this application be paid by W to H summarily assessed at $106,724 forthwith.