KWAN KUK LIN v. YIP KU

CACV 7/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 7 OF 1999

(ON APPEAL FROM HCMC NO. 5 OF 1997)

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J U D G M E N T

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Liu, J.A.:

1. This court has been assisted by Mr Yau, counsel for the appellant, the wife. The respondent is the husband. They are being described as husband and wife merely for the sake of convenience. They are divorced and their decree absolute, the final order for the divorce was obtained in early 1998. Matters pending to be resolved after a decree absolute could be many, among which for the purposes of this appeal were ancillary relief and attempted avoidance of dispositions or transactions.

2. At the hearing before Waung, J. of these pending matters, legal advisers applied on behalf of the husband for an open court hearing. The wife, through her legal advisers, resisted the application. For various reasons advanced to the judge, she sought a hearing in the judge's chambers. In that application, the husband succeeded. The wife failed. The judge thereupon ordered these pending disputes to be heard in open court. The wife felt aggrieved by the decision, and she caused an appeal to be lodged. The lodging of the appeal was within the statutory 14-day period. Court dates had been reserved by the judge for the resolution of these pending matters, and he was concerned that these reserved dates should not be, if possible, wasted. On the other hand, the law relating to an open court hearing of the pending matters is far from being simple. It is understandable, therefore, time had to be allowed for the preparation of the Notice of Appeal which was caused to be lodged by the wife within time. No just criticism could be, in the circumstances, directed at the conduct of the intended appeal from the decision of the judge for an open court hearing.

3. It would be pertinent to refer to the dates in these proceedings. The husband's application for an open court hearing was heard by the judge on 16, 17 and 18 of December last year. Some four days later on the 22nd, the judge promptly delivered judgment. The wife lodged her Notice of Appeal 13 days later on 4 January this year. After the lodging of the Notice of Appeal, the wife applied to the judge for hearing of the proceedings to be stayed. Proceedings for resolving the pending matters were scheduled to be resumed on 11 January and the wife's application for a stay of those proceedings came to be heard by the judge on 8 January 1999.

4. There was a subsequent communication between the wife's legal advisers and the staff of the judge on 9 January 1999 and certain instructions or directions were given for the parties to return to the judge tomorrow, 12 January 1999. This court is told that the further communication and the directions given therein are irrelevant to this appeal.

5. The judge refused the wife's application for a stay. However, he ordered the proceedings to be resumed instead of on 11 January, on 18 January. The reasons given by the judge were, among others, that the appeal against his decision for an open court hearing could be heard on 13 January 1999, that there was no excuse for the wife's legal advisers not to be able to hold themselves ready for the hearing, that if indeed an appeal could be entertained on 13 January, a decision might reasonable be expected in 4/5 days - after all, the judge himself delivered judgment in four days after complex and elaborate submissions, and that therefore the case could be resumed on 18th with the benefit of the decision of the Court of Appeal. By then, so it was envisaged, the judge would be in a position to know whether the pending disputes should be heard in open court or in chambers. That would appear to be a reasoning well supported by the practical date-scheduling problem and commonsense.

6. In his conclusion, the judge added a rider to the effect that if the appeal could not be heard or otherwise entertained on 13 January, "then I direct that the parties come back to me immediately ......... for further directions."

7. A date has been fixed for the hearing of the appeal against the judge's ruling for an open court hearing on 13 January. This court is told by Mr Yau, counsel for the wife, that those instructing him were not instrumental to the fixing of that hearing date by the Court of Appeal. Moreover, this court is doubly assured that neither the wife nor any of her legal advisers will attend upon the hearing fixed for 13 January. That being the scenario, clearly, the rider given by the judge at the end of his judgment would bite and, clearly, as directed, the parties should return to the judge immediately for further directions.

8. Much has been said about speedy trial and avoidance of delay. Those aspects are essential for good administration of justice. With those concerns in mind, the judge proceeded to deal with case management in the exercise of his discretion. His attempt and the result flowing therefrom are as admirably practicable as they are fair.

9. In the circumstances, it is plain that there is no substratum for this appeal. If an appeal could otherwise be constituted out of the circumstances I have endeavoured to set out in my judgment, the discretion of the judge has not shown to be plainly wrong.

10. For these reasons, the refusal of the judge to stay proceedings on the application of the wife cannot be said to be erroneous. I would dismiss this appeal with the suggestion that the parties should now return to the judge as soon as practically possible for further directions. It is apparent that Mr Yip who is interested in having his piece to be said need not be called upon.

Leong, J.A.:

11. The present appeal concerns the order of Waung, J. made on 8th January 1999, staying proceedings in ancillary relief proceedings until 18th January 1999 pending the outcome of the appeal against his order on 22nd December 1998 for open court hearing. The notice of appeal against the order of 22nd December 1998 was lodged on 4th January 1999 and the hearing has been fixed on 13th January 1999.

12. The appellant considered that there was insufficient time for them to prepare for this appeal to proceed on 13th January 1999. The appellant considered that the stay only until 18th January 1999 would be unjust. The issue in the appeal on the order on "open court" hearing is a narrow one, though there may be complicated legal argument. Nevertheless, I am unable to disagree with the judge that the matter would not be of such difficulty as would prevent competent counsel from preparing for it within that span of time between the lodging of the appeal and the hearing date.

13. The matter would likely be concluded by 18th January 1999. When the proceedings resumed, the judge would then be in a position to act in accordance with the result of the appeal.

14. I do not see any prejudice to the appellant with a stay only until 18th January 1999, nor would such an order render the appeal on "the open court" issue nugatory. I would dismiss the appeal.

Pang, J :

15. There is nothing further which I can usefully add. For the reasons given by my brothers, Liu and Leong, JJ.A., I agree that this appeal should be dismissed.