LPK v. SH also known as HSC AND ANOTHER

FCMC 11930/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO.11930 of 2010

________________________________

BETWEEN

__________________________________

___________________________

REASONS FOR DECISION
(Leave to Appeal, Leave to Appeal out of time)

   __________________________

Introduction

1.  This is the 1^st Respondent’s application for leave to appeal and the 2^nd Respondent’s application for leave to appeal out of time, both against an Anti-suit injunction granted by this Court on 28 July 2011 which is some 21 months ago.  I will, for the sake of brevity, refer to the Petitioner as the “Wife”, the 1^st Respondent as the “Husband” and the 2^nd Respondent, being the father of the Husband, as the “Father” in these Reasons.

2.  The progress of these proceedings are somehow convoluted due to a number of applications and adjournments, I will for the sake of clarity and completeness set out the chronological background at different stages in so far as they are relevant, necessary and important for these Reasons.

Chronology of Events

3.  The Husband’s Summons for leave to appeal was issued by his then solicitors Messrs. Li, Chow & Company (“LCC”) on 10 August 2011 returnable before this Court on 3 October 2011.   No Grounds of Appeal had ever been filed by LCC or by the Husband himself for today’s hearing. 

4.  By a letter dated 28 September 2011 (that is, 4 days before the scheduled hearing), LCC wrote to this Court saying that the Husband’s Summons for leave to appeal scheduled for hearing on 3 October 2011 had not been served on the Wife or the Father.   Since the Wife had applied legal aid on 19 August 2011 and there being no application for uplifting the legal aid stay by any parties, LCC in this letter sought leave to vacate the hearing of 3 October 2011 and adjourn to a date to be fixed not earlier than the end of October 2011.    This was accepted.  The initial hearing of the Husband’s Summons for leave to appeal was then re-fixed to 2 December 2011.

5.  By a letter dated 7 November 2011 from LCC to this Court and copied to the solicitors for the Wife Messrs. Iu, Lai & Li (“ILL”) and also copied to the solicitors for the Father Messrs. Chiu, Szeto & Cheng (“CSC”), leave was sought to further vacate the hearing of 2 December 2011 and be re-fixed with 1 day reserved in consultation with counsel’s diary.    It is worth noting that as at 7 November 2011, there was no ‘pending’ Summons of the Father, whether issued in the Family Court or in the High Court, for leave to appeal.   I will deal with the Father’s first Summons issued in the High Court by his solicitors CSC for leave to appeal in the following paragraphs.

6.  By a letter dated 22 November 2011 from CSC to this Court and copied to both ILL and LCC, it was said, inter alia, the following :-

“……..

We write to this Honourable Court to explain the position of our client that it was and is our client’s intention to apply for leave to appeal against the Order of the Learned Deputy Judge G. Own dated 28^th July 2011.

Due to inadvertent oversight, we had applied for leave to appeal directly to the Court of Appeal without thoroughly considering Order 59, r.2B of the Rules of District Court, Cap.336H, which requires that leave to appeal must first be sought from the Judge whose order is being challenged. By the time we found that an inappropriate application for leave to appeal had been taken out to the Court of Appeal, the time limit for appealing and serving the Application for Leave to Appeal in the Family Court had already expired.

On 25^th October 2011 we obtained leave from the Honourable Mr. Justice

Cheung, Justice of Appeal to withdraw our client’s application for leave to appeal to the Court of Appeal. We now prepare to file Inter-partes Summons for leave to appeal out of time in the Family Court together with an affidavit explaining the reasons for appeal out of time.

However, we are given to understand that by a letter dated 7^th November 2011, Messrs. Li, Chow & Company, solicitors for the 1^st Respondent herein sought leave from the Learned Judge that the hearing for application for leave to appeal fixed on 2^nd December 2011 be vacated and adjourned to a date to be fixed in consultation with counsel’s diaries.

In the premises, even though our client’s application for leave to appeal has already been out of time, we are bound to wait for an order to be made by this Honourable Court to vacate the hearing on 2^nd December 2011, if the Court sees fit, before we can formally apply for a hearing of our client’s application for leave to appeal to be heard together with that of the 1^st Respondent in consultation with Counsel’s diaries of all parties.

We would be grateful if this Honourable Court would accept our apology and we undertake to promptly take out summons application for leave to appeal to the Family Court on behalf of our client once the hearing on 2^nd December 2011 has been formally vacated.

………..”

7.  About a week later on 30 November 2011, CSC again wrote to this Court and copied to both ILL and LCC, it was said, inter alia, the following :-

“……….

As mentioned in our previous letter, it has all along been our understanding that the hearing on 2^nd December 2011 will be vacated due to the unavailability of the Petitioner’s Counsel on that day and will be adjourned to a date to be fixed in consultation with Counsel’s diaries.

Pending an order to be made by this Honourable Court to vacate the said hearing, we have undertook in our previous letter to promptly take out summons for our client’s application for leave to appeal out of time which could be dealt together with the 1^st Respondent’s application for leave to appeal.

We have instructed Counsel to handle our client’s application for leave to appeal out of time and we have just been informed that the Petitioner’s Counsel is now available and the hearing on 2^nd December 2011 is to stand.

Given the time constraint and for the purpose of saving costs, we respectfully ask this Honourable Court to vacate the hearing on 2^nd December 2011 and adjourn it to a date to be fixed in consultation with Counsel’s diaries of all parties, so that we shall have time to file the summons for leave to appeal out of time, and that the application for leave to appeal of our client and the 1^st Respondent could be dealt with together at the adjourned hearing.

……….”

8.  On 30 November 2011, the following Order was granted and all 3 parties, namely, ILL, LCC and CSC were informed by letter :-

“1. Hearing on 02.12.2011 be vacated;

  2.    Parties to refix date.”

9.  However, it was only some three months later on 6 March 2012 after being notified the hearing on 2 December 2011 was vacated, CSC issued in the Family Court the Summons seeking leave to file and serve the Notice of Application for Leave to Appeal out of time.  This Summons was scheduled for hearing on 3 May 2012 and with 2 hours reserved stated as the time estimate in the Summons.   A draft Application for Leave to Appeal was attached to this Summons which contains 3 Grounds of Appeal settled by Senior Counsel Gerard McCoy and Counsel Pauline Leung.  An Affirmation by a partner of CSC, namely, Chiu Kwok Wing, Benedict, was also filed on the same date seeking time extension for appealing.

10.  There is a joint letter dated 27 April 2012 signed by all parties, that is, ILL, LCC and CSC seeking, inter alia,  :-

(a)     the hearing of CSC’s Summons returnable on 3 May 2012 be vacated and adjourned with 1 day reserved in consultation with Counsel’s diaries;

(b)     the hearing of LCC’s Summons (where no date had been fixed after the Order dated 30 November 2011 - see paragraph 8 above) be fixed to be heard together.

11.  This application was granted by this Court on 30 April 2012.

12.  The 1-day hearing was eventually scheduled for 19 October 2012 and later re-fixed to today.

Appeal to the Court of Appeal ?

13.  As a matter of fact, the Father’s first Summons for leave to appeal was issued by CSC back on 10 August 2011.  This was within time prescribed by the relevant Rules.   However, this Summons was issued in the High Court under case no. HCMP 1522 of 2011 seeking leave from the Court of Appeal to appeal the Anti-suit injunction granted by this Court.   A Notice of Intended Application for Leave to Appeal intuited “CACV” was also filed on the same day with this Summons.   On the record, no date was allocated for this Summons issued in the High Court.

14.  On 24 October 2011, all parties, namely, ILL, CLL and CSC endorsed as a Consent Order under the case HCMP No.1522 of 2011 reciting Order 42 rule 5A of the Rules of the High Court to seek leave to withdraw the Father’s first Summons from the Court of Appeal.   A further Order was granted by Mr. Justice Cheung, JA, on the same terms and on the same date.

The applicable principles

15.  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 : Norwich and Peterborough Building Society v. Steed [1991]

         WLR 449 followed by Birkenhead Properties & Investments Ltd v.

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

16.  Order 58 rule 2 of the Rules of the District Court, Cap.336H, provides, inter alia,

“……….

(4) An application for leave to appeal must be made to a judge, or to a master in the case of an appeal under paragraph (2), within –

(a) in the case of an appeal from a judgment, order or decision of a master under paragraph (2), 28 days from the date of the judgment, order or decision;

(b) in the case of an appeal from a judgment, order or decision (other than an interlocutory judgment, order or decision) of a judge, 28 days from the date of the judgment, order or decision;

(c) in the case of an appeal from an interlocutory judgment, order or decision of a judge, 14 days from the date of the interlocutory judgment, order or decision.

(4A) If the judge or master (as the case may be) refuses an application for leave made under paragraph (4), a further application for leave may be made to the Court of Appeal within 14 days from the date of refusal.

(4B) An application under paragraph (4) or (4A) must be made inter parte if the proceedings to which the judgment, order or decision relates are inter partes.

(5) So far as is practicable, every application for leave to appeal made to a judge or master shall be made to the judge or the master against whose judgment, order or decision the appeal is sought.

(6) In any case in which the Court of Appeal may so allow, any such application may be made direct to the Court of Appeal.”

17.  Further, Section 63 of the District Court Ordinance, Cap.336 provides that a party may only appeal from the District Court to the Court of Appeal with leave.  If the judge below refuses leave, that party may apply to the Court of Appeal for leave.

18.  Section 63A(2) provides that 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.

19.  The applicable test for Section 63A(2) can be found in the case of Ma Bik Yung v.  Ko Chuen (HCMP No.4303 of 1999) by Leong JA, citing the words of Lord Woolf in the English case of Smith & Cosworth Casting Processes Limited [1997] WLR 1538:

“(1) The Court will only refuse leave if satisfied that the applicant

has no realistic prospect of succeeding on the appeal. This test is not

meant to be any different from that which is sometimes used which is

that the applicant has no arguable case. Why, however, this court has

decided to adopt the former phrase is because of the use of the word

‘realistic’ makes it clear that a fanciful prospect or an unrealistic

argument is not sufficient.

(2) The court can grant the application even if it is not so satisfied. 

There can be many reasons for granting leave even if the court is not

satisfied that the appeal has any prospect of success.  For example, the

issue may be one in which the court considers should in the public

interest be examined by this court, or, to be more specific, this court

may take the view that the case raises an issue where the law requires

clarifying.”

20.  Section 63A, being a post CJR amendment, was considered by Her Honour Judge Marlene Ng in the case of Commissioner of Inland Revenue v. Nam Tai Trading Company Ltd (DCTC No.4250 of 2008) where the learned Judge at paragraph 10 of her Judgment said :-

“10. Has there been any change with the introduction of section 63A

of DCO ? In my view, section 63A(2) merely codifies the pre-existing

threshold test of realistic or reasonable prospect of success adopted by

the local courts when considering whether to grant leave to appeal, and

I see no reason to read such provision differently from the helpful

guidance by Smith considered in Ma Bik Yung.”

21.  Thus, the party seeking leave needs to show that there was a good arguable case in respect of the intended appeal that it had a reasonable and not a fanciful prospect of success (see Commissioner of Inland Revenue v. Nam Tai Trading Co. Ltd [2009] 3 HKC 421).

The Husband’s Application

22.  At today’s hearing, the Husband addressed this Court himself unrepresented.   He had not filed any intended grounds of appeal and simply adopting, or it is more appropriate to use the word ‘relying/referring’ to those grounds of the Father.   His Summons was issued well within the prescribed time.

23.  Accordingly, my findings and decisions on the Father’s prospects of success of the intended appeal also apply to the Husband’s case.

The Father’s Application

24.  I will first deal with the application for leave to appeal out of time.

Length of delay

25.  The prescribed 28-day period expired on 25 August 2011.   Since the Father’s first Summons under HCMP No.1522 of 2011 was issued within time, the question of appealing out of time thus fall upon considering his second Summons dated 2 March 2012. This second Summons was issued some 189 days after the expiry date.  The length of delay, in my view, is substantial.

Reasons for delay

26.  With respect, I do not accept Counsel Mr. Jason Wong’s submission that given the history of events, the present Summons was taken out to correct the former procedural irregularity and was one and the same as the first Summons (see paragraph 10 of Counsel’s skeleton submissions). 

27.  Such so-called procedural irregularity, in the context of issuing the first Summons seeking leave from the Court of Appeal, had long been discovered back to 22 November 2011 when CSC wrote that letter to this Court.   In my view, this was discovered even a month earlier since CSC saw fit to obtain consent of all parties for seeking leave to withdraw their first Summons on 24 October 2011.  

28.  Given the fact that if the Court of Appeal allows, leave may be obtained directly from the Court of Appeal, I myself will refrain from saying that issuing the first Summons was a ‘procedural irregularity’.  I will only use such terminology for the sake of convenience in the following paragraphs of these Reasons.

29.  With due respect to Counsel, I do not quite follow the logic in his submission that the Father’s second Summons was taken out to ‘correct’ the so called ‘procedural irregularity’.  Had there been such an irregularity, it had already been dealt with, or using the plain words ‘removed’ by the withdrawal of that Summons with the leave of Mr. Justice Cheung, JA, on 24 October 2011.   There is simply nothing there for the second Summons to ‘correct’, so to speak.   In particular, I also do not follow the logic of how a Summons issued in the Family Court could be considered as ‘correcting’ a ‘procedural irregularity’, even if there was one, arising from a Summons issued in the High Court.   The second part of Mr. Wong’s submission that the second Summons is one and the same as the first Summons, in my view, is neither here nor there.

30.  I noticed CSC in their letter dated 22 November 2011 stated :  “Due to inadvertent oversight………without thoroughly considering Order 59 r.2B of the Rules of District Court, cap.336H……...”, there is no reference at all in the letter that there was any ‘procedural irregularity’ which CSC is now, at this hearing, trying to explain for the delay.  In my view, a party or its legal representatives, without thoroughly considered certain litigation procedure cannot be equated with that procedure, if undertaken, to then become “irregular”; in particular where that procedure is permissible under certain relevant rules.

31.  There are also submissions as to costs saving exercise for having the leave application for appeal by both the Husband and the Father to be dealt with in one hearing.   I accept this may be a sensible approach and well within the regime of the CJR only if both parties are addressing on the same or substantially the same grounds of appeal.  

32.  In my decision, the issuing of a Summons and scheduling the hearing of it, with proper management, can be quite separate and distinct.   A Summons is needed in any event to apply for leave to appeal.   Having had the first Summons in the High Court successfully withdrawn with leave on 24 October 2011 and being informed by LCC by letter on 7 November 2011 that the Husband’s appeal scheduled for 2 December 2011 was going to be vacated (see CSC’s letter dated 22 November 2011), there is a full period of 14 days (counting from 24/10/2011 to 7/11/2011) within which CSC could have issued their own Summons in the Family Court.  Still further, counting from LCC letter of 7 November 2011 to the date of CSC’s letter of 22^nd November 2011, there is also another full period of 14 days when CSC could have issued their Summons.   Why this was not done straight away rather than keep on saying intending to appeal and giving undertaking to issue Summons promptly to the Court ?   There is a total period of 28 days (that is 14 days + 14 days) for CSC to issue the Summons for leave to appeal which is needed in any event.    I must say that the costs of issuing the Summons are always there, whether it was issued within the first 14 days, the subsequent 14 days or eventually on 2 March 2012.   Why the costs of those letters could not be better spent on issuing the Summons which are needed in any event ?

33.  In the same CSC’s letter of 22 November 2011, it was said “……..even though our client’s application for leave to appeal has already been out of time, we are bound to wait (my emphasis) for an order to be made by this Honourable Court to vacate the hearing on 2^nd December 2011, if the Court sees fit, before we can formally apply for a hearing of our client’s application for leave to appeal to be heard together with that of the 1^st Respondent (my emphasis)…….”

34.  I have two observations to make.

35.  First, it was LCC’s application to vacate the hearing of their Summons issued.  How could CSC consider themselves bound to wait for the Order to be granted when, if granted, only related to LCC’s Summons ?   CSC do not even have a Summons in place on the court record for them to seek the Father and the Husband applications be heard together.   This is the reason that I said there was no ‘pending’ Summons in paragraph 5 above.

36.  Secondly, no grounds of appeal had ever been filed at any time by LCC, even up to this hearing.    I noted CSC at the time of their letter of 22 November 2011 had not filed their grounds of appeal either.  How could CSC be in any position to know their client’s grounds of appeal are the same or substantially the same as LCC’s client, namely, the Husband ?    It is worth mentioning the intended appeal relates to the Anti-suit Injunctions against the Father and the Husband covering, inter alia, the Taiwan proceedings where the Father and the Husband are at different ends, namely as Plaintiff and Defendant respectively.   Unless the Father and the Husband are in some way ‘ad idem’ on their respective grounds of appeals to which this Court had not been informed of formally by the production of their grounds of appeal, there is always a chance that justice may be better served by having the hearing of the applications separate rather than merged or that costs might not be saved by having a merged hearing.   In fact, this is not uncommon.   Thus, in the absence of the Husband’s grounds of appeal, I do not see how CSC could conclude at that stage that they would like their client’s application to be heard together with LCC’s application. 

37.  Again in the same letter of CSC dated 22 November 2011, it was said “…..we undertake to promptly take out summons application for leave to appeal to the Family Court on behalf of our client once the hearing on 2^nd December 2011 has been formally vacated (myemphasis).”

38.  It is unfortunate to see CSC issued the second Summons dated 2 March 2012 but only filed it 4 days later on 6 March 2012.   There is a period of 105 days (counting up to 5 March 2012) after the undertaking to issue the Summons application promptly was given to this Court by CSC in their letter of 22 November 2011.   Without having to go to the Oxford’s Dictionary on the exact meaning of the word ‘promptly’, for day-to-day legal practice, it is in all sense fair and reasonable to assume that ‘promptly’ accommodates a time span of a couple of days or, at most a week or so, rather than 105 days which is over 3 calendar months in the present case. 

39.  I noticed CSC saw fit in their subsequent follow-up letter of 30 November 2011, which is 8 days after having given their undertaking to this Court and 2 days before the Husband’s Summons for leave to appeal to be heard, stated  “……Pending an order to be made by this Honourable Court to vacate the said hearing, we have undertook in our previous letter to promptly take out summons (my emphasis) for our client’s application for leave to appeal out of time…….”.

40.  I do not intend to repeat those observations I have made above on CSC’s letter of 22 November 2011.  Suffice for me to say is that CSC re-iterated their undertaking given to the Court to promptly issue the Summons for leave to appeal out of time.   Thus, it can reasonably be taken that the issuing of such Summons was a priority for the Father after the hearing date of 2 December 2011 was vacated.   Nonetheless, it turns out CSC only filed the Summons for leave to appeal 95 days later, which is over 3 calendar months (counting from 2 December 2011 up to 5 March 2012).  

41.  I find the Father’s reasons for delay unconvincing and unacceptable.

Prospects of Success

42.  In the draft attached to CSC’s Summons dated 2 March 2012, the grounds of appeal are :-

“(1) The Court erred in law and/or failed to exercise its discretion to grant leave to the 2^nd Respondent to adduce further expert evidence of Mr. Cai Hong Jie.

(2) The Court in continuing the interim interim injunction dated 1 April 2011 and granting the Interim Injunction.

2.1…………..

2,2…………..

(3)    Further, in granting the Anti-suit Injunction, the Court having found the proceedings taken by the 2^nd Respondent in the Civil Action could not be said to be vexatious or oppressive (at paragraph 31 of the Judgment) :

3.1    erred in finding that the Petitioner did not submit to the jurisdiction of the Taiwanese Court by obtaining the Provisional Attachment on 17 November 2010 (at paragraph 47 of the Judgment);

3.2    failed to give any and/or sufficient regard that the Taiwanese Properties situate in Taiwan and the Taiwanese Court should be the national forum to decide any dispute over it:  Moor v. Anglo- Italian Bank (1897) 10 Ch 681, at 690;

3.3    failed to give any and/or sufficient regard that the 2^nd Respondent is not a party to the marriage and that the Civil Action is not a parallel proceedings for the same relief against the Petitioner (at paragraph 52 of the Judgment);

3.4    erred in finding the Anti-suit Injunction does not offend principles of comity (at paragraph 54 of the Judgment).”

43.  Counsel Mr. Jason Wong confirmed the Father would only pursue on ground no. (3) for leave to appeal.  The Husband, being unrepresented, who had indicated to only refer to or rely upon the Father’s grounds of appeal, confirmed that he himself would not pursue either on those abandoned ground nos. (1) and (2).

44.  Before the hearing, I saw the need to seek clarification from Counsel Mr. Jason Wong as to the juridical advantages, if there are any, to the Father for him to now continue with his application for leave to appeal the Anti-suit Injunction out of time.   Reason being that the parties have entered into various terms before Mr. Justice Poon just about a week ago on 12 April 2013 under the case HCMC No. 9 of 2012.   I should at this juncture perhaps mention that these divorce proceedings initially started as a contested divorce on unreasonable behavior under FCMC No.11930 of 2010, progressed along as an uncontested divorce on one year separation under FCMC No.14402 of 2011 which was then transferred to the High Court at the Pre-Trial Review hearing as HCMC No. 9 of 2012.   The parties in the 3 sets of proceedings are all the same.

45.  For the sake of completeness, I shall recite below the terms of the Order of Mr. Justice Poon under HCMC No. 9 of 2012 :-

“Upon hearing Counsel for the Petitioner, Counsel for the 2^nd Respondent and the 1^st Respondent appearing in person

UPON the 1^st and 2^nd Respondents accepting and acknowledging and agreeing that :-

(a) they shall not rely upon or refer to the Taiwanese Judgment granted in Taiwan Taipei District Court Civil Action (Case No. Year 100 Tsung Su Chi No.61 案號100年重訴字第61號) obtained on 30^th November 2011 by the 2^nd Respondent against the 1^st Respondent (“the Taiwanese Judgment”) in the course of the ancillary relief proceedings herein;

(b) the Taiwanese Judgment is not binding on the Petitioner herein;

(c) the Hong Kong Court hearing the ancillary relief proceedings of the Petitioner herein shall not be bound by the Taiwanese Judgment;

(d) all references to the Taiwanese Judgment be expunged from the bundles of documents to be placed before the trial Judge hearing the ancillary relief proceedings herein and the same shall not be in evidence in the said proceedings;

(e) no reference or reliance placed on the Taiwanese Judgment shall be made to in the course of the evidence and/or the submissions to the Judge hearing the ancillary proceedings herein.

IT IS ORDERED THAT –

1. All references to the Taiwanese Judgment be expunged from the bundle of documents to be placed before the trial Judge hearing the ancillary relief proceedings herein.

2. No reference shall be made to the Taiwanese Judgment in the course of the evidence and/or the submissions of the parties during the ancillary relief proceedings herein.

3. No reliance shall be placed and no weight given to the Taiwanese Judgment in the course of the ancillary relief proceedings herein.

4. All material purporting to be expert evidence relating to Taiwanese law,

whether substantive or procedural, be expunged from the bundles of documents to be placed before the Judge hearing the ancillary relief proceedings herein.

5. For the purpose of the ancillary relief proceedings, none of the parties shall be entitled to adduce evidence, including expert evidence as to Taiwanese law, whether substantive or procedural.

6. For the avoidance of doubt, the determination of beneficial ownership

of the properties subject matter of the Petitioner’s claims for ancillary relief shall be in accordance with the laws of Hong Kong.

7. The summons of the Petitioner dated 9^th January 2013 be adjourned sine die.

8. The summons of the 2^nd Respondent dated 10^th April 2013 be adjourned sine die.

9. The costs of the Petitioner’s said summons dated 9^th January 2013 and the 2^nd Respondent’s said summons dated 10^th April 2013 be reserved to the Judge dealing with ancillary relief.

10. The remaining issues, including the hearing of the ancillary relief proceedings, the 1^st Respondent’s application for a variation of Maintenance Pending Suit dated 3^rd April 2012 and the Petitioner’s application for a Judgment Summons dated 19^th October 2012 be re-transferred to the Family Court.

11. The costs of today be costs in the cause.

12. The Petitioner’s own costs be taxed in accordance with the Legal Aid Regulations.”

46.  The agreement, acknowledgement and concession of the Father and the Husband, as per the terms of the Order in HCMC No. 9 of 2012, have had the effect of putting aside and waiving reliance on all elements of Taiwanese law, substantive and procedural, including the Taiwanese Judgment out of consideration by the Hong Kong courts in the ancillary relief trial.   The terms of the Order, as I see it, would not debar the Father and/or the Husband to assert their rights and interests within the Taiwan jurisdiction.   The question then comes along is whether the Father and the Husband, whilst making those agreements and concessions in Hong Kong, had in mind not to take any action whatsoever in Taiwan, including enforcement action, pending the ancillary relief trial in Hong Kong which will likely to be heard before the end of 2013 ?   Had this been the case, whether the Father and the Husband continue to be subjected to the Anti-suit Injunction pending the ancillary relief trial would become academic.  The only need to seek leave to appeal against the Anti-suit Injuction, as I see it myself, is that the Father and/or the Husband would like to have the Taiwanese proceedings and/or Taiwan Judgment already obtained ‘moved along’ in Taiwan before the ancillary relief trial ends in Hong Kong.  

47.  In reply to my question, Counsel Mr. Wong submitted the Father was rather concerned about the costs under the Anti-suit Injunction which he had been ordered to pay and for that reason the Father  would now like to pursue his leave to appeal. With due respect to Mr. Wong, I am not convinced at all by such an answer. The Father is always entitled to seek leave to appeal on costs only or, at an earlier stage, to seek review of the costs order under the Anti-suit Injunction. Neither of this had ever been attempted by the Father.    In fact, it is also open for the Father to seek stay of execution of that costs order rather than spending further costs now to attempt to overturn a costs order granted 21 months ago.

48.  Upon further instructions taken by Counsel, it was submitted the chances of success on any of those costs-related applications alone without appealing the Anti-suit Injunction are slim for the general rule of costs follow the event. I am not convinced by such an answer either for the simple reason that costs are always in the discretion of the Court. 

49.  I will now deal with those substantive grounds of appeal under ground no. (3). 

50.  To start with, Counsel in his submissions repeatedly referred to my finding that the Taiwanese proceedings taken out by the Father against the Husband cannot be said to be vexatious or oppressive.  That being the finding, it is questionable for the subsequent findings of (a) the Father and the Husband having acted in concert; and (b)  the Husband compelling the Wife to proceed with divorce in Taiwan to be an act intended to remove the Wife’s provisional attachment.

51.  I have clearly stated in paragraph 31 of my Judgment that the concept of vexation or oppression should not be restricted by definition.   Having had the benefit of reading Lord Goff’s Judgment in the Societe Aerospatiale case, I concluded in paragraph 32 of my Judgment that the ultimate question should be, where the justice lies ?  The finding of the Father initiating the Taiwanese proceedings against the Husband (i.e. his Son) not being vexatious or oppressive is no more than recognition of an individual’s right to sue in a court of law.  My other finding of the Father and the Husband having acted in concerted effort was concluded only after  considering all the circumstances from a wider perspective, being those matters which I set out and analysed in paragraphs 33 to 37 of my Judgment.   Further, I have made it clear at paragraph 39 of my Judgment that this Court should not consider the Taiwanese proceedings in isolation as being non-vexatious and non-oppressive when deciding upon Anti-suit Injunction.

52.  My other finding of the Husband compelling the Wife to proceed with divorce in Taiwan; failing which, her provisional attachment would be uplifted was arrived at after consideration of the legal opinion submitted by all parties which I have set out at paragraphs 40 to 42 of my Judgment as opposed to simply relying on the first finding of the Taiwanese proceedings not being vexatious or oppressive at paragraph 31 of my Judgment. 

53.  As for ground no.3.1, my finding of the Wife not having submitted to the jurisdiction of the Taiwanese Court at paragraph 47 of my Judgment was supported by the case of Hwoo Huang Linda v. Fu Being San & others (HCA No.4888/2001).  Counsel Mr. Jason Wong was not able to convince me such case is not applicable to the present facts or is distinguishable.

54.  As for ground no.3.2, it refers to the issue of forum which had not been raised as an issue at the substantive hearing of the Anti-suit Injunction.   Neither was such issue of forum argued at any stage throughout.   There was no application for me to consider such as a live issue at this leave to appeal stage.   This issue could not simply come in at this stage as one of the grounds of appeal without it being raised and argued at the substantive hearing in the first place.

55.  As for ground no.3.3, sufficient consideration had already been given to the fact that the Father is not a party to the marriage and the Taiwanese proceedings not being parallel proceedings.  This is clearly stated in paragraph 52 of my Judgment that the ultimate question is where justice lies rather than the status of the party to be restrained remain to be the main concern of the Courts when granting injunctive reliefs.

56.  As for ground no.3.4, the finding was based upon the established principles in the Societe Aerospatiale case which Counsel Mr. Jason Wong was not able to convince me such case is not applicable to the present facts or is distinguishable.

57.  I noticed Counsel Mr. Jason Wong in his skeleton submissions under sub-headings ‘No Shutting Out of Petitioner” (paragraphs 20 to 27) and “Article 58” (paragraphs 28 to 34) referred to protective measures had been or could have been obtained by the Wife under the law and procedure in Taiwan.   However, it is clear these submissions relate to grounds of appeal no. (2) which was not pursued by the Father for this hearing.

58.  The Husband made no further submissions on his own behalf on his appeal.

59.  For the above reasons, I find there are no reasonable prospects of success on appeal by the Father and/or the Husband.

Prejudice to the Other Party

60.  There are no children of the family and Decree Absolute has been granted under FCMC No.14402 of 2011 on the 19 October 2012.  The only outstanding issue being the Wife’s ancillary reliefs.

61.  The Wife has been on legal aid for some time and substantial costs have already been incurred throughout the 3 sets of proceedings.   As rightly submitted by Counsel for the Wife Miss Remedios, for the Father and the Husband to now further pursue their leave to appeal against the Anti-suit Injunction, costs would be escalated which are unnecessary incurred.  At the end of the day, those unnecessarily costs incurred would have, speaking for the Wife, to come out from any fruits of litigation which the Wife may receive.  More importantly, the Wife’s ancillary relief trial would be further and unnecessarily delayed.

62.  Taking all the relevant factors and circumstances into account, I am satisfied that the Wife would be seriously prejudiced both in terms of time and costs should leave to appeal out of time be given to the Father.   

Any other reasons appeal should be heard ?

63.  Neither Counsel for the Father nor the Husband is able to convince me that there exist any reasons that their appeals should be heard. 

Conclusion

64.  I decided not to exercise my discretion to grant leave to appeal out of time to the Father’s application.

65.  Furthermore, I also decided that the intended appeal against the Anti-suit Injunction of this Court dated 28 July 2011 by the Father and/or the Husband has no reasonable prospects of success.   

66.  Finally, there are no other reasons that any of their appeals should be heard either.

Costs

67.  There is no basis for me to consider departing from the normal rule on costs.  I decided that the Wife should be entitled to the costs of the applications by the Father for leave to appeal out of time and by the Husband for leave to appeal.  

68.  Insofar as any of the costs are intermingled by a joint or merged hearings, I consider it fair and reasonable to be equally apportioned between the Father and the Husband whilst both are legally represented; and be apportioned at 20% to be paid by the Husband and 80% to be paid by the Father whilst the Husband was acting in person.   The Father had been legally represented throughout.

69.  I also consider this a suitable case for granting Certificate for Counsel.

Orders

70.  I now make the following Orders :-

(a)    The 1^st Respondent’s Summons dated 9 August 2011 (filed on 10 August 2011) be dismissed;

(b)    The 2^nd Respondent’s Summons dated 2 March 2012 (filed on 6 March 2012) be dismissed;

(c)    The costs of and occasioned by the 1^st Respondent’s said Summons and the 2^nd Respondent’s said Summons be to the Petitioner and be apportioned as per paragraph 68 of these Reasons, including all costs reserved, to be taxed if not agreed;

(d)    Petitioner’s own costs be taxed in accordance with Legal Aid Regulations; and

(e)    There be Certificate for Counsel.

71.  Unless any party applies for variation of the costs order within 14 days from the date hereof, such costs order nisi shall become absolute.

Dated the 15 day of May 2013.