TKY v. YSGA

FCMC 2208/2023
(formerly FCMC 903/2022)

[2023] HKFC 251

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 2208 OF 2023

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DECISION

( Leave to Appeal )

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1.  This is a hearing of the Respondent (“the husband”)’s application for leave to appeal against this court’s judgment on MPS/Interim Maintenance dated 7 September 2023 (“the MPS Judgment”).

2.  In the MPS Judgment, this court granted the following orders of MPS/Interim Maintenance in favour of the Petitioner (“the wife”) and the 2 children of family:

(1)  The husband shall pay a monthly sum HK$28,000 to the wife as the children’s interim maintenance (HK$14,000 each) payable on the 1^st day of every month, starting 1 December 2022, until further order of the court.

(2)  The husband shall pay MPS by way of legal costs provision (“LCP”) in the sum of HK$1,200,000 payable by 12 monthly instalments of HK$100,000 each on the 1^st day of every month starting 1 October 2023 and the last instalment ending on 1 September 2024.

3.  On 21 September 2023, the husband issued the present summons asking for leave to appeal against the LCP Order, but not the interim maintenance order for the benefit of the children. He also asks for a stay of the LCP Order and leave for him to adduce fresh evidence that his parents are unwilling to provide any funds to be given to the wife as LCP. In his draft Notice of Appeal, the husband has put forward 5 grounds of appeal, which will be discussed further below in this decision.

The Law

4.  Leave to appeal is governed by s. 63A (2) of the District Court Ordinance, Cap 336 which reads:

“(2) 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.”

5.  As to what constitutes a reasonable prospect of success, it has been held that the prospects of succeeding in the intended appeal must be “reasonable” and therefore more than “fanciful”, but without having to be “probable”: SMSE v KL[1]

The Husband’s Draft Notice of Appeal

Draft Grounds 1 and 2: Financial Assistance from Husband’s Family

6.  Under draft ground no. 1, Mr. John Scott SC (leading Ms. Madeleine Booth) for the husband submitted that I have erred in assuming that the husband could obtain “assistance from his family”. He submitted that where a spouse enjoys access to wealth but without absolute entitlement to it, the court will not act in direct invasion of the rights of, or usurp the discretion exercisable by, a third party. The court will also not exert pressure on a third party to enhance the means of the maintaining spouse, citing the case of KEWS v NCHC [2013] 2 HKLRD 314, §42 (see also §48). It was further submitted that for the third party’s financial resources to have any bearing on the order to be made, the court must make a finding of fact on the evidence as to (i) the extent of the financial assistance provided by the third party; and (ii) the likelihood of such assistance to be continued in the foreseeable future. But this court is simply not in a position to properly make those findings of fact at this interlocutory juncture, where the evidence had not been argued in full.

7.  Furthermore, there is now evidence that the husband’s parents are in fact unwilling and have refused to pay LCP to the wife. This forms the second ground of appeal, and the husband will apply to introduce such new evidence at the hearing of the appeal after leave is granted.

My Views

8.  As submitted by Mr. Felix Li, counsel for the wife that evidence has already been given in the wife’s affirmation on the financial assistance given by the husband’s parents since 2018, amounting to HK$19.5 million. At §51 of the MPS Judgment, this court accepted the fact that the husband’s family did provide financial assistance to him in terms of the provision of a luxurious accommodation (the Pokfulam Residence) and loans (or gifts as contended by the wife) for the purchase of landed properties or to cover his monthly expenses. It may be true to say that at this interlocutory stage, the court may not be in a position to rule on whether such financial assistance really amounts to HK$19.5 million, but it was quite clear that such financial assistance had to be rather substantial. Even in the husband’s Form E (A/147), he stated that he owed his mother over HK$3 million, being HK$1.65 million for the purchase of landed property and HK$1.4 million to cover his daily expenses. He also stated (A/141-2) that his mother has given him US$300,000 for safekeeping. Furthermore, the husband has already spent over HK$3 million in legal costs, another HK$400,000 to be incurred in this appeal. Presumably, the funding of his legal costs must also come from the parents. Therefore, even by adopting a broad-brush estimation, it is not difficult for this court to conclude that the financial assistance given by the husband’s family had to be substantial, certainly in the millions, if not tens of millions.

9.  On the issue of whether such substantial financial assistance will continue, I note that there was no credible evidence at the MPS hearing to suggest that such financial assistance would cease. Therefore, it was a reasonable assumption that such financial assistance would indeed continue.

10.  As for Ground 2 of the husband’s intended appeal, it merely states the husband’s intention to apply for the introduction of new evidence in the event that leave to appeal is granted. I accept Mr. Li’s submission that it should not form part of this court’s consideration on whether leave to appeal ought to be granted.

11.  I am not satisfied that the husband has a reasonable prospect of success under Grounds 1 and 2.

Ground 3: The Husband’s Capital

12.  Ground 3 concerns with my acceptance that the husband had HK$3,100,000 cash in bank, which according to the husband had already been exhausted.

13.  The HK$3,100,000 figure was taken from the husband’s Form E dated 26 May 2022 (A/142). It is true to say that the husband did say at §25 of his affirmation dated 10 February 2023 (A/71) that:

“25….I understand running a new business has its risks and hence I anticipated the HK$3.5 million I made from the sale of the Greenview Property would be able to cover the family expenses for some 2 to 3 years but unfortunately this sum has already run out as a result of these proceedings.” (Italics added)

14.  However, this was a bare assertion by the husband without any supporting evidence on how the sum of HK$3,100,000 being depleted over a period of less than 9 months. The court was entitled to rely on the previous figures in the husband’s Form E, instead of half a sentence of a bare assertion in his affirmation.

15.  I am not satisfied that the husband has a reasonable prospect of success under Ground 3.

Ground 4: The Financial Circumstances of the Wife

16.  Ground 4 concerns with the court’s alleged error in granting LCP when the wife had financial resources to pay her legal costs and her non-disclosure of means.

17.  Mr. Scott submitted that the wife did have (i) shares worth HK$300,000 and (ii) personal valuables of HK$956,654 (which she did not disclose). The combined sum of over HK$1.2 million should be enough to cover her legal costs up to FDR. Moreover, the wife had received loans from banks and her cousin, and also money from her parents, indicating that the wife had the ability to raise loans for her legal costs. Therefore, it was unjust to order the husband’s family to pay LCP to her.

18.  At §49 of the MPS Judgment, I have already dealt with this point very briefly:

“49. The husband also contended that the wife should have sufficient assets or borrowing powers to cover her future legal costs. But by looking at the rather uncompromising approach adopted by the parties in this litigation, I am not surprised that much of the wife’s available financial resources have already be spent on legal fees.”

19.  On a broad-brush basis, I accepted that the wife had already exhausted her means to pay for future legal costs. As to the allegation of non-disclosure on the part of the wife, that was a dispute of facts that could not be resolved in a MPS hearing.

20.  I am not satisfied that the husband has a reasonable prospect of success under Ground 4.

Ground 5: Quantum of LCP

21.  Mr. Scott submitted that a LCP Order in the sum of HK$1,200,000 was disproportionate in view of the subject matter of the proceedings. He submitted that (i) it was a short marriage of 4 years; (ii) there was insubstantial joint marital acquests; and (iii) the lesser earning capacity of the husband.

22.  As far as legal costs are concerned, I share the same feeling that the legal costs incurred by both parties so far are getting out of hand and that is why I reduce the initial claim of over HK$3 million of LCP to an order of HK$1,200,000. But as I have stated at §48 of the MPS Judgment, the legal costs incurred by the husband at that time was already about HK$3,400,000. He is going to incur another HK$400,000 in this appeal. I understand that he has already filed summons to argue on the costs order nisi in the MPS Judgment. He has filed another application for leave to appeal on children matters. His total legal costs will likely be over HK$5 million, if not more and we have yet to reach the FDR stage. I do not think that he has any legitimate complaint to say that a sum of LCP at HK$1,200,000 is disproportionate.

23.  I am not satisfied that the husband has a reasonable prospect of success under Ground 5.

Conclusions and Orders

24.  Based on the above discussions, I am not satisfied that the husband has any reasonable prospect of success in his intended appeal (on all 5 grounds) and there being no other reasons in the interest of justice that leave should be granted, I refuse to grant leave to appeal and the husband’s summons dated 21 September 2023 is dismissed.

Costs

25.  Costs to follow event. The wife shall have the costs of and incidental to this summons. Such costs are to be assessed summarily. I hereby direct the wife to lodge and serve a 2-page (A4 paper) statement of costs for summary assessment within 14 days and the husband to lodge and serve his list of objections (if any) also limited to 2 pages of A4 paper within 14 days thereafter. Upon receipt of these documents, the court will proceed to assess the costs on a summary basis.

Representation: