AC v. MFHJ

FCMC 17626 / 2012

[2018] HKFC 223

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 17626 OF 2012

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Ruling
(Leave to Appeal)
(Paper Disposal)

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Introduction

1.  The parties are former husband and wife with a daughter now 11 years old.

2.  On 3 August 2018, I handed down a judgment on the variation of maintenance payable by the respondent father in favour of the daughter.  This judgment was the result of a 4 ½ day trial upon the applications from both parties.  On the part of the petitioner mother, she applied to have the original maintenance order to be substantially varied up and as for the respondent, he applied for a discharge.  The orders I gave, in brief, are:

1.  The original maintenance order of $8,000 per month payable by the respondent is to be suspended from April 2016 to December 2017.

2.  The sum payable by the respondent under the order is varied from $8,000 to $5,800 per month as from 1 October 2016.

3.  The respondent is to pay the petitioner arrears of maintenance from January 2018 to August 2018 in the sum of $46,400 by 24 monthly instalments, the first is to be paid on 1^st September 2018.

4.  An order nisi that the petitioner is to pay half of the costs to the respondent, such costs to be summarily assessed.

3.  Following the judgment, the respondent now applies for leave to appeal.  He considers that he should have been discharged from any periodical payments order that is made against him.

4.  As I have already set out the background of the parties, their evidence and my reasoning in the judgment, I am not going to repeat the same here. This Ruling has to be read together with the judgment. 

5.  For convenience, I shall continue to refer the daughter as “SF”, the respondent’s girlfriend as “NC” and the respondent and NC’s daughter as “OV”.

6.  The only document lodged by the respondent was his 5-page draft Grounds of Appeal dated 22 August 2018.  In response, the petitioner lodged a letter on 18 September 2018 indicating her acceptance of the court’s decision and expressing her wishes to have a closure of the proceedings.

Legal Principles

7.  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]

8.  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).”

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

Appeal Against Finding of Fact and the Exercise of Discretion

10.  Where an appeal is to challenge the finding of fact or the exercise of his discretion by a trial judge, broadly speaking, an appellate court would only interfere with the determination of the trial judge in plain and obvious case.  

11.  In CCMJ v SSM (Appeals; Bundles; Case Management) [2016] HKFLR 22, Poon JA, after having referred to the Court of Appeal judgment in China Gold Finance Limited v CIL Holdings Ltd (unreported, CACV 11/2015, 27 November 2015), succinctly summarized the guiding principles,

15.  First, to successfully challenge any finding of fact, the burden is firmly on the applicant to demonstrate that the finding is plainly wrong : see Ting Kwok Keung v Tam Dick Yuen [2002] 3 HKLRD 1, at [42].  The applicant has to show that the trial judge misunderstood the evidence, or overlooked important evidence or in some way came to the conclusions of fact that, in the overall context of the evidence as a whole, were plainly illogical or in some other way plainly wrong : KNW v HTF, HCMP 288/2011, 7 September 2011, unreported, at [2] and [3].

16.  Second, maintenance provisions granted under the Guardianship of Minors Ordinance, Cap 13 involve the trial judge’s exercise of discretion.  The appellate court will not interfere with the judge’s exercise of discretion lightly.  It will do so only if the judge erred as a matter of law, misunderstood the evidence, took into account irrelevant factors, failed to take into account relevant factors or had acted blatantly outside the scope of the discretion that no reasonable tribunal would have done. See Hadmor Productions v Hamilton [1983] 1 AC 191, at p 220B-F; SPH v SA [2014] 3 HKLRD 497.  It is not a sufficient basis to intervene merely because the appellate court might have exercised the discretion differently.

12.  With these guiding principles in mind, I now deal with the respondent’s grounds of appeal.

The Respondent’s Grounds of Appeal

13.  The respondent’s grounds of appeal are grouped under 8 headings; I will deal with them in the order as they appear.  

(1)   SF’s expenses and contribution

14.  Under this heading, the respondent is not satisfied with my assessment as regards SF’s expenses while she is under his care.  He specifically refers to the following points: -

15.  First, SF is spending her time with the respondent on 3 consecutive weekends every month; as such SF’s expenses incurred in his home should be more than those incurred during the weekdays when she is staying with her mother.  The $3,000 given by me as SF’s share of the respondent’s general expenses is accordingly too low: [90].  He substitutes $6,785 for $3,000 as the appropriate figure.   There is no explanation on how $6,785 is obtained.

16.  Secondly, it was wrong for me not to have included part of the mortgage instalments of his home as SF’s expenses since the property does not generate any income: [90].  He accordingly gives a figure of $10,375 to represent SF’s share of the mortgage instalment and management fee.

17.  Thirdly, while I recognized the contributions made by NC in respect of the domestic helper and numerous holidays, the figure of $500 that I gave to represent NC’s contribution in respect of SF’s expense is simply too low: [90].  He also submits that the costs of his domestic helper and the holidays should have been included.  In replacement, he gives a figure of $7,000.

18.  Fourthly, the respondent argues that it was wrong for me to have set the petitioner’s financial needs at $40,000 per month when the petitioner was making $42,500 and admitted that she could save $8,000 per month. 

19.  On his own calculation on SF’s needs under the respective care of her parents, the respondent contends that nothing should be payable from him.

Discussion

20.  The assessment of $3,000 as SF’s share of the general expenses was arrived at on the basis of appreciation of the evidence before me.  I expressly mentioned that this $3,000 is in the main her share of food and utilities expenses.  As I said in [90] little purpose can be served by descending into the precise percentage of her share and, for the reason that mortgage payment is a capital expense, I have specifically excluded this item. 

21.  On the respondent’s complaint regarding the omission of SF’s share in respect of the costs of the domestic helper, he seems to have forgotten that in trial he adjusted his original figure of total expense as reported in his Form E of 8 May 2017 from $119,850 to $60,835.  He informed the court that it was made possible in part due to NC’s contribution to the family expenses; in particular, NC is responsible for the expenses of the car, the costs of the domestic helper and meals out of home: [87].  In other words, it was his own deliberate decision to exclude these items. 

22.  As regards NC’s contribution of $500 towards SF as assessed by me, the respondent is clearly unhappy about it but there is nothing to show this is an unreasonable figure.  In this regard, it has to be borne in mind that the respondent’s own figures for SF’s entertainment and clothing/shoes are merely $200 and $100 respectively.  Further, it was the respondent’s own evidence (on 13 March 2018) that NC was able to purchase SF’s clothing on-line from Amazon at much cheaper prices.

23.  As for the holiday expense, I must confess that I do not understand why the respondent would have this complaint.  As has clearly been stated in [87] and [88], the revised figure of $2,000 on this item was given by the respondent during trial on 13 March 2018 and was accepted by the court without any adjustment.  As a matter of fact, all the revised figures given by him were accepted without any deduction.

24.  On the petitioner’s financial needs, I do not know how the respondent got the figure of $42,500 as her salary.  I say so because in trial it was not in dispute that the petitioner was making $45,000 per month.   It was with this amount of money that the petitioner was able to save $8,000 per month.  It follows that her monthly needs should have been $37,000 ($45,000 - $8,000).  Yet it has to be borne in mind that when the trial came to the closing submission, her rental had been increased by $3,000; hence her monthly needs were assessed at $40,000 ($37,000 + $3,000): see [67] to [40].  The respondent’s submission is clearly based on a false premise as regards the petitioner’s monthly earnings.

25.  Ultimately, it has to be remembered that maintenance provisions under the Matrimonial Proceedings and Property Ordinance (Cap 192) involve the trial judge’s exercise of discretion given to him under section 7 of the Ordinance.  It is plainly inadequate for the respondent to have put forwarded some figures that he sees as reasonable or, at the very least, more reasonable than mine.  By the same token, it does not help him if he has an alternative formula in calculating the financial needs of SF.

26.  As I have referred to what Poon JA said in CCMJ v SSM (Appeals; Bundles; Case Management) in [11] above, in order for the respondent to succeed in obtaining leave, he should at least show he has an arguable case that I erred as a matter of law, misunderstood the evidence, took into account irrelevant factors, failed to take into account relevant factors or had acted blatantly outside the scope of the discretion that no reasonable tribunal would have done.  The respondent has failed to demonstrate that he is able to rely on any of these grounds.

(2)   NC’s Loans

27.  The respondent argues that I should have attributed $500 per month as SF’s expenses to represent the repayment of NC’s loans in 5 years’ time.  His calculation is as follows: on the basis that the principal sum is $2,900,000 and this has to be repaid by him in 5 years’ time, it means he has to repay $33,000 per month and SF’s share, he says, is $500.

28.  I do not find any merit in this argument.  There is simply nothing from the respondent to challenge my finding of fact that his liabilities towards NC are in the form of soft loans.  It is simply not NC’s evidence that she required the loans to be repaid in 5 years’ time.   The respondent has simply failed to demonstrate that my finding as regards NC’s loans is plainly wrong, that I misunderstood the evidence or in some way came to the conclusions of fact that, in the overall context of the evidence as a whole, were plainly illogical or in some other way plainly wrong: see [11] above and also The Hong Kong Civil Procedure (2018), at §59/0/53.

(3)   The Respondent’s Earning Capacity

29.  The following are what he says in his draft grounds,

“In [paragraph] 73 the court takes cumulating earnings for the year starting from January 2017 to December 2017 which inflates the monthly salary be (sic) 30% taking it up to $ 75,000. In [paragraph] 74 it returns to the Inland Revenue calendar (sic) that reflects the Respondent real salary of $58,000 per month.”

30.  I must say I find the respondent’s submission confusing. He seems to be saying that I erred in concluding that he had a monthly income of about $60,000 per month but apparently he agrees that his real salary was $58,000.  Again, the respondent has failed to show that in coming to the conclusion that I had regarding his monthly income, I had misunderstood the evidence, or overlooked important evidence or in some way came to the conclusions of fact that, in the overall context of the evidence as a whole, were plainly illogical or in some other way plainly wrong.

(4)   OV’s expenses

31.  The respondent’s submissions are as follows,

“While it is mentioned the (sic) NC should be of financial support to the family to the extend to use her entire divorce lump sum if needed to pay for SF’s expenses and child maintenance nowhere it is referred in the Judgment about Olivia’s needs and expenses and her parent’s contribution. Why should she be deprived from her own parents’ financial resources?”

32.  First of all, it is not mentioned anywhere in the judgment nor is it my finding or view that NC should be of financial support to the family to the extent that she would have to use up her entire divorce lump sum if needed.  Anyway, the respondent’s complaint is that I did not consider OV’s needs and expenses and her parent’s contribution.  With respect, I do not know why he says so.   During trial on 13 March 2018 when the respondent was giving evidence regarding the expenses of his children with reference to what he reported in his Form E of 8 May 2017, I specifically enquired him of OV’s expenses and, on the basis of his evidence, I included entertainment expenses of about $500 per month for OV and a future expense of about $3,100 for her school fees: see [89].  As said, all the revised figures given by him were accepted without any adjustment.  I fail to see how the respondent can now justly say there are some omissions.

(5)   Arrears of Child Maintenance

33.  This ground is to challenge the order given by me that the respondent is to pay the arrears of maintenance from January 2018 to August 2018 in the sum of $46,400 by 24 monthly instalments.

34.  The following are what he says in his draft grounds,

“The court reproaches the Respondent to take upon him to suspend the child maintenance following the loss of employment for the second time in April 2016. The court has clearly acknowledged my underestimation of my SFC suspension impact, the drastically affect (sic) on my job recovery as well my capacity to meet my financial obligations towards not only the Petitioner by (sic) my family. This has not changed and the accommodation given to the Respondent to bring up to date the arrear of child maintenance from January 2018 to August 2018 will weight irremediably on my family financial balance and I will most likely end up not have the mean to follow the court order.”

35.  What the respondent says, in essence, is that he has no money to pay but he fails short of setting out the grounds for the challenge.  This ground is simply unmeritorious.

(6)   The Respondent’s Costs

36.  The following are what he says in his draft grounds,

“Order was made for the Petitioner to pay half the cost of the Respondent. Reading over the court Judgment Judge I WONG elaborated clearly the different refusals to engage in discussion according to court order; the refusal to vacate the Notice of application and acknowledged the refinancing delay caused and the financial impact it had on him and still does.”

37.  I assume the respondent is unhappy with the fact that he was only given half of the costs but not the whole of them.  Again, he fails short of setting out the grounds for the challenge. 

(7)   The Petitioner’s salary increase

38.  The respondent says the petitioner has since the judgment had her salary increased and received a bonus of $15,000.

39.  This is a post-judgment development of the parties’ situation and, as far as this application is concerned, is irrelevant.  Whether this development could be tantamount to a material change in the circumstances may be debatable but even if it is, an appeal is not a proper venue for the respondent. 

(8)   The Respondent’s Mother’s funeral costs

40.  The respondent says since the judgment his mother has unfortunately passed away and he has to shoulder her funeral costs and the incidental flight expenses.  This ground is in the same nature as the earlier ground and for the same reason, is without merit.

Order

41.  In conclusion, the respondent has failed to show that he has an arguable case on any of his grounds.  The intended appeal has no reasonable prospect of success.  For this reason, the application for leave to appeal must be dismissed and I so order.

Costs

42.  I see no reason why the respondent should not be responsible for the costs of this application.  I give an order nisi that the respondent do pay the petitioner costs of this application, to be summarily assessed.