HKW v. YYC

FCMC 3123/2021

[2023] HKFC 70

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 3123 OF 2021

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DECISION
(Leave to appeal)

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1.  This is the application taken out by the respondent (“Husband”) on 22 December 2022 for leave to appeal against my decision made on 30 November 2022 (“MPS Decision”) for maintenance pending suit of $20,000 per month for the benefit of the petitioner (“Wife”) and the child of the family from 1 June 2021 and thereafter on the 1^st day of each month until further order (“MPS Order”).

2.  The Husband’s application for leave to appeal is about 14 days out of time as the MPS Order is an interlocutory order and he has 14 days to apply for leave to appeal from 30 November 2022.

3.  According to his affirmation of service filed 30 December 2022, he has served the relevant documents on the Wife.

4.  This application is disposed of on paper without oral hearing pursuant to the New Arrangement for Application for Leave to Appeal in the Family Court issued on 13 August 2018 (“New Arrangement”).

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 (see: Leung Yiu & Ors [1998] 1 HKLRD 257).

6.  Section 63A(2) of the District Court Ordinance 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.

7.  A reasonable prospect of success involves the notion that the prospect must be more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Hartmann JA at paragraphs 8 and 9 of the Judgment).

8.  Further, the Court of Appeal said in NPYJ v SMRC [2020] HKCA 82 at para.22:

“22.  First, as pointed out by the Judge and Mother, the decision to adjourn the Interim Access Application to 18 November 2020 is an interim order and a case management decision.   In general, appeals against interim orders are not to be encouraged as they tend to distract rather than focus parties’ attention on the real issues of the case, apart from incurring additional and, in most instances, unnecessary costs and time.   In the specific context of interim orders made in proceedings relating to children, it has been noted in  Rayden and Jackson: Relationship Breakdown, Finances and Children at [49.55] that:

“Where the court makes an interim order appeals are actively discouraged as the usual remedy will be to invite the same court to review the provisions of that order at a later hearing. Necessarily, interim orders often call for difficult decisions to be made by and the lower court should endeavor to make such orders in a way which causes the least amount of harm to a child in that interim period. The court on appeal will be slow to interfere in decisions which are only intended to last for a relatively short period of time.”

23.  It is also well established that case management is pre-eminently within the province of the trial judge and the appellant court will only interfere in very exceptional circumstances: Cheung Yee-mong v So Kwok-yan [1996] 2 HKLR 48, 51.   This Court has consistently held that an appellant faces a high hurdle in showing that the first instance judge had gone clearly wrong and made orders which clearly involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that his order was irrational: see Lee Tak Yee v Chen Park Kuen [2001] 1 HKLRD 401; Kan Miu Wah v Aeroflot Russian International Airlines (unreported) CACV 142/2006; and Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887.” (emphasis added)

9.  In other words, since the MPS Order is only intended to last for a short period of time, application for leave to appeal are actively discouraged. 

Discussion

10.  The Husband attached the draft Grounds of Appeal in his summons dated 22 December 2022 and also filed his written statement/submission which was more than 5 pages in contravention of paras. 4(3) and 10 of the New Arrangement. Accordingly, I directed to return his written statement/submission to him as per para. 10 of the New Arrangement and further ordered that unless he do file and serve his written statement/submission in compliance with para. 4(3) of the New Arrangement by 4 pm on 30 January 2023, his summons dated 22 December 2022 be dismissed with costs.

11.  On 7 February 2023, he filed his written statement together with a letter to the court explaining the reason for late filing.  To his benefit, I accept his reason.

12.  Nonetheless, in his written statement, the Husband did not explain the reasons for the delay of his application for leave to appeal out of time although the delay is not substantial, only 14 days.  It is noteworthy that at the date of handing down the MPS Decision, he was legally represented by a law firm called Payne Clement Velasco.  Hence, I consider that his then solicitors must have properly advised him on the time for lodging appeal.

13.  Regarding his draft Grounds of Appeal, he said that he incurred total legal costs of $795,873 in 2022.  Indeed, I have dealt with his submission concerning the alleged legal costs in para. 36 of the MPS Decision.  I do think that it needs to repeat here.

14.  For the other Grounds of Appeal, such as the challenge of my findings as to his and the Wife’s income and expenses, I have also dealt with them in the MPS Decision.  In short, the legal approach for the MPS Application is on a broad brush basis without conducting detailed investigation of the financial position of the parties.  I disagree that his draft Grounds of Appeal has any merit.

Conclusion

15.  To conclude, the MPS Order only intended to last for a short period of time until further order. The Husband has failed to demonstrate any reasonable prospect of success in his intended appeal and there is no other reason in the interests of justice why the appeal should be heard.  His application for leave to appeal should be dismissed.

16.  Regarding the question of costs, there is no reason why costs shall not follow event.  Although the Wife has not lodged her statement of costs but I am of the view that she has spent some time to peruse and consider the relevant documents served on her.  I order that costs of this application be paid by the Husband to the Wife summarily assessed at $500 forthwith.

17.  I understand that for unknown reason, the MPS Order has not been drawn up.  I now direct that the Husband’s present solicitors do draw up, file and serve the sealed copy MPS Order and this order within 7 days.

18.  The Wife may approach the translation office of the District Court and the court interpreter is directed to translate this Decision to her orally, if necessary.