LSM v. SWCR AND OTHERS

FCMC 2161/2015

[2026] HKFC 55

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 2161 OF 2015

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DECISION
(Leave to Appeal)

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1.  By way of a summons dated 28 November 2025 (“the Petitioner’s Summons”), the Petitioner made an application for the following relief:

1)  Leave to appeal against my judgment dated 1 August 2025 (“the Judgment”)  out of time;

2)  Stay pending appeal; and

3)  The interim injunction granted by HHJ KK Pang be continued until determination of the appeal.

BACKGROUND

2.  The background of this case has been set out at paragraphs 2 to 8 of the Judgment. I shall not repeat the same. I shall adopt the same abbreviations used in the Judgment.

3.  The Wife was legally represented at the trial. She continues to be represented by the same legal representatives in this present application.

4.  The Judgment was handed down on 1 August 2025. In her supporting affidavit to the Petitioner’s Summons (“the Wife’s 18^th Affidavit”), the Wife acknowledged the deadline for lodging an appeal expired on 29 August 2025.

5.  For reasons which will be discussed in the relevant sections below, the Wife did not lodge an application to appeal out of time but instead filed a summons for a time extension on 29 August 2025 (“the Time Summons”), citing Order 3 Rule 5 of the Rules of District Court (Cap 336H)  (“RDC”)  in the margin note, requesting the following relief:

“Time for the Petitioner to file and serve her application for leave to appeal against the Order dated 1^st August 2025 be extended for 28 days from the date of the Order.”

6.  The Time Summons was heard on 12 September 2025. No supporting affirmation was filed with the Time Summons and no supporting affirmation was submitted on the day of the hearing.

7.  On the day of the hearing, after raising a number of concerns with the Wife’s counsel, the Wife withdrew the Time Summons application.

8.  On 28 November 2025, the Wife filed the Petitioner’s Summons seeking the following relief:

1)  Leave to appeal against the Judgment out of time;

2)  Pending the final determination of the application for leave to appeal:

a)  The proceedings under FCMC 2161/2015 be stayed; and

b)  The interim injunction granted by Judge Pang be continued.

9.  The 1^st and 3^rd Respondents lodged their submissions to the Petitioner’s Summons on 12^th and 13^th March 2026 respectively.

THE WIFE’S INTENDED GROUNDS OF APPEAL

10.  The Wife lodged three intended grounds of appeal, which spans over 15 pages of the draft intended grounds of appeal lodged to the court (“Draft Notice”). Since much of the particulars are a repetition of what was submitted at trial, I shall succinctly paraphrase and summarize the intended grounds of appeal as set out below:

1)  The court erred in failing to adopt a holistic approach to the evidence on its assessment of whether there was a common intention constructive trust between the Husband and R3.

2)  The court erred in its analysis and weighing of evidence and its refusal to draw adverse inferences against the Husband and R3.

3)  The court erred in its acceptance of the Husband and R3’s evidence.

11.  Since the majority of points raised are a repetition of the Wife’s submissions made at trial, I do not intend to deal with each and every point raised by the Wife. Suffice to say, I am aware of the matters set out in the draft intended grounds of appeal and have considered the same. I shall only deal with the salient points raised.

THE LAW

12.  Section 63A (2)  of the District Court Ordinance provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

13.  The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave to appeal can show that he/she has an arguable case with reasonable chances of success on appeal. 

14.  In Ho Yuen Ki Winnie and anor v Ho Hung Sun Stanley and anor, HCMP 1009/2009, (unrep), Le Pichon JA (as she then was)  stated at paragraph 16 of the judgment:

“For leave to be granted, this court must be satisfied that the appeal has ‘reasonable prospects of success’. Merely showing that the appeal is ‘arguable’ and ‘not fanciful’ would not be sufficient. In my view, ‘reasonable prospects’ requires something more and, in that regard, some assistance may be derived from the test applied when setting aside a default judgment.”

15.  In KNM v HTF, HCMP 288/2011, (unrep), Fok JA (as he then was)  stated at paragraph 9: -

“The relevant test of whether an appeal has a reasonable prospect of success under section 63A is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than ‘fanciful’ but which do not need to be shown to be ‘probable’”.

(See also the case of SMSE v KL [2009] 4 HKLRD 125)

16.  In considering whether to allow an application to appeal out of time, the recent Court of Appeal judgment in the case of Henry Shing Him Chow and anor v Ling Kam Tong, Victor and ors [2026] HKCA 72 succinctly summarized the principles as follows at paragraphs 24 and 25 of their judgment as follows:

“24. In an application for extension of time to appeal (including an application for extending time to apply for leave to appeal), the court takes into account the length of the delay, the reasons for the delay, the chances of success of the intended appeal and the prejudice to the other party if time is extended. Where delay is inexcusable, the applicant must show a real prospect of success on the merits, not just a reasonable prospect of success: The Hongkong Shanghai Banking Corporation Ltd v Sy Shun Wu & Ors [2018] HKCA 736, [8] and [9].

25.  This Court will not entertain an appeal simply because an applicant wishes to regurgitate arguments already considered below with the hope that this Court may come to a different assessment: Symphony Partners Ltd v Fullerton Bay Investment Ltd [2018] 4 HKLRD 264, [33].”

17.  In considering the Petitioner’s Summons, I have considered the above legal principles. I now proceed to consider the Wife’s application for leave to appeal out of time and the intended grounds of appeal. 

LEAVE TO APPEAL OUT OF TIME

18.  I have considered the facts surrounding the Petitioner’s Summons, the Wife’s 18^th Affidavit, and the submissions lodged by her counsel. I find there to be no reasonable explanation for the delay in taking out the application for leave to appeal.

19.  Firstly, it is telling to note the Wife had all along been legally represented by the same firm of solicitors and the same counsel. As conceded by the Wife, she was aware of the time limit in lodging an application for appeal.

20.  The submissions explaining more time was required to consider whether to file the Petitioner’s Summons (due to the voluminous documents involved and the complexity of issues)  are non-starters. The Wife’s legal team is fully conversant with all of the documents and issues relating to the case. It is simply unfathomable the Wife and her legal team would require almost 4 months to decide whether an application for leave to appeal should be lodged.

21.  Secondly, even if (for whatever reason)  the Wife needed more time to consider the matter, there has not been any reasonable explanation provided as to why the Wife could not have made her application for leave to appeal before 28 November 2025.

22.  The Wife’s explanation for the delay due to the late receipt of transcripts is unmeritorious. In paragraph 7.5 of her 18^th Affidavit, the Wife conceded her solicitors had already obtained 5 out of 8 days of trial transcript sometime before 12 August 2025. All of the Husband’s evidence was concluded by the 5^th day of trial. The remaining 3 days’ of trial were relating to the R3’s remaining cross-examination and closing submissions. Even if the Wife needed to consider the remaining 3 days’ of transcript before deciding on whether to make an application for leave to appeal, there is no reasonable explanation as to why the Wife could not have lodged her application for leave to appeal out of time sooner. Furthermore, there is no reasonable explanation offered as to why, despite having finally received the remaining transcripts on 5 November 2025, she waited until 28 November 2025 to file the Petitioner’s Summons.

23.  Thirdly, in so far as the Wife seems to be relying on the fact that she did file the Time Summons, this argument is also unmeritorious. The Time Summons was an erroneous application in several aspects:

1)  Since time for appealing has expired on the day the Time Summons was filed, the Wife should have made an application to file an application for leave out of time. The Wife’s application for time extension citing Order 3 Rule 5 RDC in the margin notes of the Time Summons is clearly erroneous. The proper provision under which the application should have been made is Order 58 Rule 2(10)  of RDC.

2)  There was no supporting affirmation filed by the Wife in support of her application for a “time extension” for leave to appeal. It is trite that any application for leave to appeal, including an application for leave to appeal out of time, must be accompanied by a supporting affirmation. In particular, for the court to consider the application, the Wife is required to explain the reasons for delay by way of affirmation.

24.  The above matters were made known to the Wife at the hearing of the Time Summons. Since the hearing was a substantive argument on the Time Summons, I had indicated that due the above matters, the Time Summons was liable to be dismissed. I had urged the Wife to consider whether she should properly take out an application for leave to appeal out time (with a supporting affirmation)  and stood down for the Wife’s counsel to take further instructions on the matter. Upon taking further instructions, the Wife decided to withdraw her Time Summons in order file an application for leave to appeal out of time.

25.  However, despite the matters discussed at the hearing on 12 September 2025, the Wife waited another 2 months before filing her application for leave to appeal out of time on 28 November 2025. There simply has been no reasonable explanation given as to why the Wife waited until 28 November 2025 before filing the Petitioner’s Summons.

26.  By reason of the matters set out above, I find the Wife has failed to provide a reasonable explanation for the delay in lodging her application for leave to appeal. In such circumstances, I find the delay inexcusable.

27.  For sake of completeness, I shall also consider the merits of the intended grounds of appeal and consider whether there are real prospects of success such that leave to appeal should nevertheless be granted.

THE WIFE’S INTENDED GROUNDS OF APPEAL

Ground 1

28.  The Wife’s argument on the matter has already been considered and canvassed in the Judgment. As I had set out in paragraph 75 of the Judgment, I was aware of the Wife’s argument on adopting a holistic approach to the evidence but for extensive reasons given in the Judgment, I found the Wife unable to prove the facts on which she based her reasoning and inferences.

Ground 2

29.  The bulk of the Wife’s complaint lies in the draft intended Ground 2 of the Draft Notice. As summarized above, the main complaint is against the assessment of evidence.

30.  It is trite to say that the court is not required to answer all points raised by the parties at trial and is not required to set out its decision on all points raised by the parties during the trial. This principle has been reiterated by the Court of Appeal on several occasions and succinctly set out in the case of Houtai Investment Holdings Ltd v. Leung Yat Tung and ors [2022] HKCA 411 as follows: 

“29. . . . The court is not required to deal with each and every allegation raised by a party in support of its case. It only needs to identify the issues critical to its decision and explain how it has resolved those issues: Lucy Michaels v Centaline Property Agency Ltd [2020] HKCA 705 at [51]. Not every factor which weighed with the judge in the appraisal of the evidence has to be identified and explained in the judgment: Leung Wing Yi Aster v Kwok Yu Wah (2015)  15 HKCAR 605 at [59]. . . .”

31.  I am of the view all salient points raised by the Wife have been addressed in the Judgment. As set out in paragraphs 46 and 47 of the Judgment, I was aware the Wife centered much of her argument on the fact that the Husband and R3 had an intimate relationship.

32.  I have set out clearly and explained in the Judgment the reasons why I found the Wife’s reasoning flawed, unsupported by evidence and logically unsound.   I do not repeat the relevant parts of the Judgment. In short, the Wife failed to prove the objective facts on which she based her various inferences and deductions. Furthermore, she failed to prove her inferences are reasonable given the evidentiary gaps in her case. Even considering the Wife’s argument as a whole, there are logical and evidentiary gaps in her reasoning and her conclusion of the events. 

33.  In so far as the Wife claims the court has misinterpreted or erroneously summarized the evidence, I am of the view these submissions seem to have misunderstood the relevant parts of the Judgment. For example, the Wife claims paragraph 31(4)  of the Judgment is erroneous as the Wife and Husband has explained the document belongs to the Husband’s affirmation.

34.  Firstly, the Wife’s submissions are misleading. The Wife has only affirmed in her affidavit (and similarly stated in her witness statement)  that some documents are the same as those appearing in the Husband’s previous affirmations. The Husband in his affirmation, witness statement, and testimony in court confirmed those documents are his, but he does not know why those documents are found amongst the Discarded Documents. Hence as stated in my Judgment, there is no explanation as to why those documents are present amongst the Discarded Documents.  

35.  Secondly, as conceded by the Wife in her counsel’s submissions, the Husband’s explanation about the said documents were uncertain. The Husband’s explanation as to how the documents might have ended up in the Discarded Documents was based on speculation: either he may have enlisted the help of May to photocopy his documents or he might have used Fast Team’s copy machine himself. The Husband was clear in that he did not know how precisely those documents came to be amongst the Discarded Documents. The Husband’s speculation is unhelpful to the court because, in absence of any reference to time or dates as to when the Husband may have used Fast Team’s copying facilities, there is insufficient evidence to draw the inference the Husband caused the documents to be amongst the Discarded Documents.  In the event the court cannot concluded it was the Husband who discarded directly or indirectly those documents in Discarded Documents, the identity of the person who came to cause the documents to be amongst the Discarded Documents becomes crucial and can result in vastly different inferences being drawn. As an example:  if the person who placed the Husband’s documents amongst the Discarded Documents was the Wife, the inference to be drawn is very different from the situation where the person who placed the documents amongst the Discarded Documents was the Husband himself.

36.  As set out in the Judgment, the court recognizes that the Husband and R3 do not dispute the documents belong to them. The dispute is whether the documents are true and accurate. There is simply no unequivocal explanation on why and how the said document came to be amongst the Discarded Documents. In absence of a clear and unequivocal explanation as to how the Husband’s documents ended up amongst the Discarded Documents, the court is unable to safely infer and conclude the Husband has any beneficial interest in Fast Team based on the presence of the said documents amongst the Discarded Documents.

37.  I have set out at paragraph 32 of the Judgment that save and except for the documents unequivocally admitted to by the Husband and R3, I was not prepared to the accept the reliability of the remaining documents.

38.  Another example of the Wife having misreading or taking the Judgment out of context can be seen in the particulars set out at paragraph 4.6 of the Draft Notice. The Wife claims the court has misunderstood the evidence that “the likeness between Rays and Fast Team were so similar that a common contractor had mistook Rays for Fast Team…”.  In paragraph 71 of my Judgment, I specifically stated I failed to see the relevance of the Wife’s argument relating to contractors and proceeded to explain why the Wife’s argument on the same was not relevant. Nowhere in that paragraph of the Judgment did I say that the contractors would have mistook Rays for Fast Team.

39.  I do not intend to explain each and every paragraph of the Judgment. In summary, the matters set out under the draft intended Ground 2 relates to criticisms of the evidence of which I have already dealt with in the Judgment. In so far as the Wife submitted I have misunderstood the evidence or erroneously misinterpreted the evidence, as per the examples above, I am of the view the Wife has misread the Judgment and/or taken the Judgment out of context.

Ground 3

40.  In so far as the Wife claims the court has accepted the Husband and R3’s evidence without proper explanation and analysis, I refer to paragraphs 38, 59, 70, 73, 74 and 77 of the Judgment, where I gave specific reasons as to why I accepted the evidence of the Husband and/or R3. There are also other instances throughout the Judgment where I have made mention of the Husband and R3’s evidence and concluded that the Wife is still unable to prove the facts she alleged, an example would be paragraph 69 of the Judgment. 

41.  By reason of the matters set out above, I fail to see any reasonable or real prospects of success in the Wife’s intended grounds of appeal. I also do not find there to be some other reason in the interests of justice why the appeal should be heard.

SUMMARY

42.  By reason of the matters set out above, I dismiss the Petitioner’s Summons.

43.  I am of the view that costs should follow the event.

44.  I make a costs order nisi that the costs of the Petitioner’s Summons be to the 1^st and 3^rd Respondents, to be summarily assessed. Unless any party applies to vary the costs order nisi within 14 days hereof, the costs order shall become an order absolute.

45.  I therefore make the following orders :

1)  The Petitioner’s Summons be dismissed.

2)  Costs of the Petitioner’s Summons be to the 1^st and 3^rd Respondent, to be summarily assessed.

3)  The 1^st and 3^rd Respondents shall lodge and serve their statement of costs relating to the Petitioner’s Summons within 28 days of this decision.

4)  The Petitioner shall lodge and serve her grounds of objection to the 1^st and 3^rd Respondents’ statement of costs within 28 days thereafter.

5)  No further submissions be lodged by the parties unless with the leave of the court.

6)  The summary assessment of the Petitioner’s Summons shall be dealt with by way of paper disposal.