RK v. YS

HCMP 1410 /2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1410 OF 2010

(ON AN INTENDED APPEAL FROM FCMP NO. 151 OF 2008)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Le Pichon JA:

1.  This was an application by summons by the father to set aside the order of Rogers VP of 12 August 2010 granting the mother leave to appeal the custody order made by HH Judge KW Wong dated 8 June 2010. At the hearing an oral application was made to set aside an order for a stay of the custody order pending appeal also granted by Rogers VP. At the conclusion of the hearing both applications were dismissed with costs.

2.  A party who seeks to rescind an order of a single judge of this court granting leave to appeal must appreciate that he faces an extremely high hurdle.  In Chau Cheuk Yiu v Poon Kit Sang and others, HCMP 121/2010, unreported, 13 August 2010, this court stated:

“2. ... Applications to reconsider the grant of leave to appeal by a single judge face a similarly high threshold. The threshold to be met was set out by Lord Donaldson MR in The Iran Nabuvat [1990] 1 WLR 1115 (at 1117H):

“But the point that I am making is that, if one Lord Justice thinks that an appeal is arguable, it is really necessary, in my view, for anybody seeking a reconsideration of that to be able to point fairly unerringly to a factor which was not drawn to the Lord Justice’s attention because, perhaps, it did not feature in the documents which have been studied, or to the fact that he has overlooked some statutory provision which is decisive, or some authority which is decisive, in the sense that the appeal will inevitably fail.  That is really what leave to appeal is directed at, screening out appeals which will inevitably fail.”

3. Those observations were cited with approval in First Tokyo Index Trust Ltd v Morgan Stanley Trust Co and others, The Times, 6 October 1995, CA, where Sir Thomas Bingham MR stated that the settled rule of practice is that this court will not set aside leave granted by a single judge even if of opinion that it would not have granted leave itself or that the single judge was being perhaps over-indulgent to a prospective appellant. He explained that the rationale is to be found in “considerations of practical efficiency and also of justice” and, further, that a high threshold was necessary:

“… because otherwise there is the risk that a procedure intended to save costs and avoid delay increases both by inserting two procedures, the grant of leave on paper and an application to set aside in addition to the hearing of an appeal itself.” ”

3.  A copy of the decision was supplied to the parties at the outset of the hearing.  Ms Rattigan who appeared for the father was undeterred and suggested that this being a case concerning the custody of children the court should be more flexible in its approach and, further, that leave had been granted on a paper application without an oral hearing.  I regret that I am unable to accept that submission and depart from the settled practice.  Applying the test, it is clear that the father cannot show that the mother’s appeal will inevitably fail.

4.  Since the date of the custody order, further incidents have occurred (including a possible breach of bail conditions) that cause concern.  These appear from the evidence filed since the date of the custody order but it is unnecessary to go into those matters at this stage.

5.  Ms Rattigan then made an oral application at the hearing to set aside a stay of the custody order. Although the Registrar’s letter to the father’s solicitors of 12 August 2010 only referred to the grant of leave to appeal, it is apparent from the sealed order that a stay pending appeal was also granted.  It was said that since the date of the custody order there have been changes to the living arrangements of the parties and it would cause undue disruption to comply with the stay order if, ultimately, the appeal were to fail.  It was also suggested that the mother’s new accommodation is not sufficiently large to accommodate the children and the equipment that the younger child needs.

6.  The submission assumes that the appeal would fail.  But as the threshold to rescind the order for leave to appeal has not been met and the appeal is to proceed, I would not interfere with the order for a stay.  In the interests of the children, the parties must endeavour to cooperate to facilitate the immediate compliance with the order for a stay.

7.  What is clear is that the appeal should be heard as soon as possible and upon the court's request, Ms Yip who appears for the mother has undertaken to fix a date for the hearing of the appeal on an expedited basis.

Hon Kwan JA:

8.  I agree with the Reasons for Judgment of Le Pichon JA.