WSSA v. SYH

FCMC 4633 / 2020

[2022] HKFC 174

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4633 OF 2020

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D E C I S I O N
(Leave to Appeal)

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Background

1.  By way of general background, the Petitioner was the Wife and the Respondent was the Husband.  Parties married in 2007.  There are 2 children of the family whose custody so far had not been any serious issue.  Interim care and control was granted to the Petitioner but access had all along been a contested issue, in particular over the elder child, between these

highly conflict parents.  The 2 children whom I will refer to them as “G” a boy, aged 12 and “S” a girl, aged 9.  I will refer to the Petitioner mother as “M” and the Respondent father as “F” in this Decision.

2.  On 6/9/2021, F filed a Summons seeking variation of access in respect of the 2 children.  This application was named as “Access Summons” by F.

3.  On 3/1/2022, F filed another Summons seeking an order that the elder child “G” be placed with a boarding school in Hong Kong for the academic school year in 2022/23 to start in September 2022.  This application was named as “Schooling Summons” by F.

4.  Yet there was another Summons filed by F on the same day of 3/1/2022 for this Court to recuse himself from participating in these proceedings any further and that all hearings be vacated, adjourned and re-fixed until determination of the recusal application.  This application was named as “Recusal Summons” by F.

5.  At the hearing on 11/1/2022, this Court granted a composite Order which undisputedly was a case management decision over all application(s) pending before the Court on that day.  This composite Order was named as “Adjournment Order” by F in respect of which, or more precisely part of which, he is now seeking leave to appeal.

6.  F’s leave to appeal was proceeded in the usual way as per the “New Arrangement for Application for Leave to Appeal in the Family Court” issued by Acting Principal Family Court Judge C.K. (as he then was).

7.  F was represented by Miss Anita Yip S.C. leading Mr Ken S.H. Chan.  M was represented by Miss Audrey Eu S.C. leading Miss Theresa Chow.

The Adjournment Order dated 11/1/2022

8.  Apart from the Access Summons and the Schooling Summons, there are the following Summonses which are pending further disposal by this Court as at the hearing on 11/1/2022 :-

-  M’s Discovery Summons dated 27/1/2021;

-  F’s Discovery Summons dated 9/4/2021;

-  M’s Summons dated 10/12/2021 for setting aside leave to issue Committal Summons obtained by F;

-  F’s Summons dated 22/11/2021 for variation of costs order nisi.

9.  The terms of the Adjournment Order are, inter alia, that the Recusal Summons be fixed for substantive hearing in consultation with Counsel’s diaries with 1 day reserved.  The Access Summons, Schooling Summons, and all the other pending Summonses aforesaid[1] be adjourned for disposal after determination of the Recusal Summons.

F’s Recusal Summons

10.  F’s Recusal Summons reads as follows :-

“(1) His Honour Judge George Own shall recuse himself from participation in these proceedings under FCMC 4633/2020 including any further hearings (“Recusal Application”);

(2) All further hearings under FCMC 4633/2020 be vacated, adjourned and re-fixed until after the determination of the Recusal Application; and

(3) There be no Order as to costs of this application.”

F’s Leave to Appeal

11.  F’s Summons seeking leave to appeal the Adjournment Order actually referred to only 2 orders, namely, the order on adjourning the Access Summons (paragraph 1 (a) of the leave to appeal Summons); the order on adjourning the Schooling Summons (paragraph 1 (b) of the leave to appeal Summons).  The remaining application was that this Court made no directions on all interim matters concerning children and finances (paragraph 1 (c) of the leave to appeal Summons).

F’s Draft Grounds of Appeal

12.  There are 3 grounds as follows :-

Ground 1 :  The exercise of case management power by the Learned Judge is plainly wrong in that it blatantly disregards the welfare of the       Children;

Ground 2 :  The Learned Judge was plainly wrong in not directing another family judge to handle and hear the Schooling Summons, the Access Summons and all interim matters;

Ground 3 :  The Adjournment Order was irrational, prevented the Court from carrying out its task and in breach of natural justice.

The statutory provisions on granting leave to appeal

13.  The jurisdiction on granting leave to appeal was under section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.

14.  The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Fok JA (as he then was) at paragraphs 8 and 9 of the Judgment).

Chronology of Events that had happened

15.  Given that F is now seeking leave to appeal a case management decision of this Court, where only Ex Tempore reasons were delivered for the decision, it is important and necessary to refer to matters or events that had arisen prior to the granting of the case management decision on 11/1/2022 in respect of which F is now seeking leave to appeal. 

16.  To start with, at the hearing on 26/1/2021 before Deputy Judge Thelma Kwan (as she then was), which was the hearing for the 1^st Appointment, Children’s Appointment, Interim care, control and access of the children and also the call-over hearing of M’s Summons for ouster order against F, the learned deputy judge after hearing parties’ submissions adjourned most of the outstanding matters and directed, inter alia, that Miss Lora Lee to be appointed as the parties’ single joint expert whose scope of appointment, accepting those proposed by F’s Senior Counsel, was as follows :-

“Miss Lora Lee be appointed as the SJE to prepare a Children Psychologist Report on the children of the family and with focus on the children’s respective relationship with each of the parents. If deemed appropriate, Miss Lee may speak with/interview the parents for the purpose of preparing this report on the children.”

17.  Miss Lora Lee produced her 66-page (270 paragraphs) Report dated 25/6/2021.  In a gist, Miss Lee recommended that the child G to be removed from his home and separated from his parents to protect himself and the safety of those around him.  G would only have overnight stay access with his parents over the weekend when[2] :

A : Both parents have undergone psychiatric evaluation, to assist the court in determining the safety of the children’s mental health and physical safety when under their care.

B : The court has decided on living arrangements based on the   psychiatric evaluation of the parents[3].

18.  Miss Lee further recommended :-

“261. While G is in a safe and secure environment, he should receive intensive therapy with an experienced petitioner.

262. While he is staying in a safe and protected environment, regular but structured supervised visits by his parents should be arranged, so that he does not feel abandoned. In order to provide a sense of safety for G, this would be best supervised by Auntie C (the nanny).

263. An official solicitor to be appointed to represent G once the treating psychologist feels that G is in a stable mental state, so he feels a better sense of control for having his voice heard.

264. In order for G to feel safe and be able to build trust with his therapist, I suggest that his therapist not provide a report to the parents or the court but only record the number of sessions with G. This ensures that G is receiving support and the parents’ continued involvement.

265. To avoid the likelihood of G becoming more paranoid and suspicious of others, both parents must stop recording what G says.

266.  ………..”

19.  At the next hearing on 30/6/2021, both parties indicated that they did not agree (emphasis added) to G to be “left-alone” and separated from his parents.  This Court then directed the Social Welfare Officer in charge of this case to be provided with a copy of Miss Lora Lee’s Report for him to review and then to provide a short memo to this Court, on an expedited basis (emphasis added), as to :-

-  The appointment of Official Solicitor for the 2 children or, only for the child G in light of G’s condition;

-  Views and Recommendations in light of Miss Lora Lee’s Report.

20.  On 26/7/2021, the Social Welfare Officer sent in an “Update Memo” reporting, inter alia, that appointment of the Official Solicitor (“OS”) to represent the 2 children would protect their interests and having their voice heard.  Both F and M expressed no objection to the appointment of the OS so recommended by the Social Welfare Officer.

21.  Given the acrimonious relation between the parents which had persisted if not escalated throughout these proceedings, and the need to ensure that the children’s interests are best secured, and also taking into account the Updated Memo from the Social Welfare Officer, this Court at the hearing on 29/7/2021 (which lasted from 2:33 p.m. to 8:31 p.m. intermittently for 6 hours) directed the Official Solicitor to represent the 2 children in these proceedings.  At this hearing, the Court also granted interim defined supervised access to F on every Tuesdays and Thursdays from 7 p.m. to 9 p.m. and on every Saturdays from 4 p.m. to 9 p.m.

22.  At the same hearing on 29/7/2021, the Court granted further specific and detailed directions as follows :-

-  Dr Peter Lee be appointed as psychologist for the child G;

-  Both parties do undergo psychiatric assessment/treatment by a jointly appointed psychiatrist.  If the parties undergo assessment by their own psychiatrist, each party shall also be assessed by the other party’s psychiatrist.  The respective psychiatrists to produce the following reports to the Court :–

(a)  Psychiatric assessment of the party appointing the psychiatrist;

(b) Psychiatric assessment of the other party;

(c)  Psychiatrists for both parties to meet after finalising their reports and to prepare a joint report setting out (i) agreed and non-agreed observations of F and M; and (ii) reasons for any disagreement.

23.  On 25/8/2021, the OS sent in a letter on an urgent basis (emphasis added) reporting that there are several outstanding matters which need to be addressed.  For the sake of completeness, the relevant parts of the OS’s letter are reproduced hereunder :-

“1. As stated in paragraph 263 of the single joint expert Madam Lora Lee dated 25^th June 2021 expert recommended that Official Solicitor to be appointed to represent G once the treating psychologist feels G is in a stable mental state, so he feels a better sense of control for having his voice heard. However, the Petitioner and the Respondent have not yet arranged G to have the 1^st therapy with Professor Peter Lee even that he was ordered by the Court on 29^th July 2021 to be the expert for the therapy. As we are not medical expert, we are not certain if G was in a stable mental state to voice at the interview.

2. The parties are also yet to undergo (emphasis added) psychiatric assessment/treatment either with their own psychiatrist or by the psychiatrist appointed by the other party to make observations. It is unable to ascertain if the Petitioner or the Respondent are in the capable mental condition to take care of the children.

3. The single joint expert Madam Lee suggested to place G at a foster family as an interim measure. The parties are yet to explore (emphasis added) the possibility of placing G in a foster family and provide the details thereto.

4. Also the updated social investigation report may be required.

In light of the aforesaid, we have reservation whether the Official Solicitor’s Report to be prepared at this moment can properly and correctly reflect the true voice and best interest of the children as our observation to be submitted will definitely subject to the above pre- conditions (emphasis added).

It is, therefore, in our view that an adjournment of the trial for the parties to settle the above matters maybe more appropriate. We should be grateful if the Court will consider and give direction for an adjournment of the trial fixed for 7^th September 2021, if he sees fit (emphasis added).

    Kindly place this letter before the Honourable District Judge G. Own for    consideration and direction.  We look forward to hearing from you on an       urgent basis. Thank you.”

24.  On 27/8/2021, this Court replied to the OS as follows :-

“ 1. Official Solicitors’ views noted and agreed.

2. OS do liaise with both parties on their views.

3. Parties do assist OS on the outstanding matters that need to be done to assist their preparation of the OS Report;

4. A Pre-Trial Review (30 minutes) be scheduled after the OS Report is ready and completed;

5. Trial on 7 to 10 September 2021 be vacated.”

25.  On 30/8/2021, the OS produced their Report.  In their letter of

the same date, the OS requested the following directions :-

“ (a) In addition to our letter to the Court dated 25^th August 2021, whether we are authorized to disclose the Official Solicitor Report filed on 30^th August 2021 to the Petitioner and the Respondent for consideration;

(b) Whether Supplemental Official Solicitor Report is required upon the completion of the outstanding matters; and

(c) Whether the Pre-Trial Review is to be scheduled after the completion of the Supplemental Official Solicitor Report, if so required.”

26.  The OS’s requests for directions were all responded to by the Court with an affirmative answer – “Yes” to each of the 3 requests for directions.

27.  On 2/9/2021, F’s lawyers wrote in to seek leave to issue a Summons on an urgent basis (emphasis added) for variation of the interim care and control of either or both children; and also on the then existing interim defined supervised access arrangement (the “Intended Summons”), asking it to be listed for hearing together with the upcoming directions hearing for M’s Summons for an ouster order against F which had been listed for 7/9/2021 (that is, 5 days later).

28.  On 3/9/2021, leave was granted to F’s urgent request on short notice for the Intended Summons.

29.  On 6/9/2021, F issued his 3-page Intended Summons supported by his 26-page 11^th Affidavit with 11 exhibits adding up to around 200 pages.  As said, with leave of the Court, F’s Intended Summons was listed for hearing on 7/9/2021, which was just the next day.

30.  On 7/9/2021, the hearing started at 10:55 a.m. and ended at 5:46 p.m. intermittently lasted for about 7 hours.  Insofar as F’s Summons for variation of the interim care and control and supervised defined access application was concerned, apart from granting general directions on the filing of affirmation evidence, the Court granted detailed and comprehensive orders as follows :-

-  F’s Summons for variation of care and control and access be     adjourned for substantive argument with 1 day reserved;

-  F’s application for variation of interim care and control of the child G be rejected;

-  F’s application for interim staying access of the child G  be rejected;

-  F’s application for uplift supervised access of Rent-A-Mum be rejected;

-  F do have interim interim dinner access with the 2 children every Tuesday, Wednesday and Friday from 6:30 p.m. to 8:30 p.m. supervised by Auntie C and a representative from Rent-A-Mum commencing 7/9/2021;

-  F’s interim defined supervised access on Saturday between 4 p.m. to 9 p.m. by Auntie C and Rent-A-Mum do continue until further order;

-  Interim telephone access on those non-access days, namely, Monday, Thursday and Sunday, of not more than 1 hour between 6:30 p.m. and 8:30 p.m.  The children shall continue to use their own iPhone or other electronic devices given by F for the interim telephone access;

-  The handover for access days shall take place as follows :-

(i)    Pick up of the children at the beginning of access shall take place at the lobby of M’s residence at xxxx;

(ii)   Collection of the children at the end of access shall take place at the lobby of F’s residence at xxxx; and

(iii)  Both pick up and collection of the children are to be conducted in the presence of Auntie C and a representative from Rent-A-Mum, but in the absence of the parties.

-  In the event that Auntie C is not available to attend F’s access, such access shall be supervised by two representatives from Rent-A-Mum. In the event that Rent-A-Mum is unavailable to secure another representative in time for access, such access shall be suspended and make-up access shall be arranged.”

31.  In addition, the following detailed and comprehensive case management directions were granted at the same hearing :-

-  Professor Lee do prepare a preliminary report on present condition of G with recommendation and timetable on therapy (without disclosing what G has told him) to be filed with the Court and served on all parties and the Official Solicitor (“OS”) within 42 days (“Prof. Lee’s Report”);

-  The joint report to be prepared by the psychiatrists of both parties as stated in paragraph 10 of the Order dated 29/7/2021 shall be filed and served on all parties and the OS within 42 days (“Joint Report”);

-  Within 28 days of service of Prof. Lee’s Report and the Joint Report, the OS do prepare a supplemental report to be filed and served on all parties (“OS Supplemental Report”);

-  The Social Welfare Officer do prepare a further report after receiving Prof. Lee’s Report, the Joint Report and the OS Supplemental Report (“Updated SWR”) to be filed and served on all parties;

-  A Pre-Trial Review for F’s Summons filed on 17/9/2020 in respect of interim care and control of the Children shall be fixed after the service of the OS Supplemental Report and the Updated SWR.”

32.  On 9/11/2021, F issued an Ex Parte Summons on Notice on an urgent basis (emphasis added) returnable the next day on 10/11/2021 seeking various interlocutory reliefs. In a gist, F had arranged an interview and assessment for the child G at xx School at 11:45 a.m. on the following day, that is, 11/11/2021. He wanted to have access to the child G and bring him for the interview and assessment.  The short noticeurgent application was listed for hearing on 10/11/2021 which started from 9:46 a.m. until 1:44 p.m. intermittently for 4 hours.  OS representing the children also attended this hearing.

33.  At the end, F’s application as per his Ex Parte Summons onNoticewas dismissed with costs to M and with Certificate for Counsel.

34.  On 22/11/2021, F issued a Summons seeking variation of the costs order nisi in respect of his Ex Parte Summons on Notice which was dismissed.

35.  On 3/1/2022, F issued the Schooling Summons and the Recusal Summons.

Discussion

36.  First and foremost, it is common ground that case management decisions, which are the exercise of discretion, are pre-eminently within the province of the trial judge.  The appellate court would only interfere in very exceptional circumstances.  The 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 the order was irrational[4].

37.  Secondly, F with the benefit of full legal advice from reputable firm of matrimonial practice and Senior Counsel, decided to seek “All further hearings in FCMC No.4633/2020 be vacated, adjourned and re-fixed until after the determination of the Recusal Summons[5]” in his Recusal Summons is clear and unambiguous.  The Adjournment Order was precisely what F had prayed for and had achieved by the filing of his Recusal Summons.

38.  It is blatantly wrong, with respect, for F to be able to renege from what he had been seeking for or hoping to achieve by his Recusal Summons and, once achieved (emphasis added), be able to pick and choose those applications which he hoped to proceed under the disguise that the “welfare of the Children” was disregarded by the Court when granting the adjournment.  As M’s Senior Counsel fairly and rightly submitted, which I fully agree and accept, that F actually is now appealing an adjournment caused by his own Summons[6].  In so doing, F was cherry picking for the result that whilst there should be an adjournment for some other applications, those applications that he wished to proceed should be excluded from the Adjournment Order and, since the recusal application had yet to be heard, those applications he wished to proceed would then need to be disposed of by another Judge of the Family Court.

39.  Complaint was also laid upon the trial of F’s Summons filed earlier on 17/9/2020 seeking interim shared care and control of the children was vacated by this Court without hearing the parties and against protests by F.  It was said by F that access was extremely limited and with the trial being vacated with no foreseeable re-fixed dates, F had no choice but to take out the Access Summons on 2/9/2021 seeking increase access.

40.  As outlined above, F’s access was initially scheduled on 29/7/2021 for Tuesdays, Thursdays and Saturdays which was 3 days within a week[7]. Starting from 7/9/2021, it was increased to 4 days within a week on Tuesdays, Wednesdays, Fridays and Saturdays.  In addition, there are telephone access on non-access days (that is, Mondays, Thursdays and Sundays)[8].  On any objective view, the access arrangement could hardly be said to be “extremely limited” so alleged by F.

41.  Given that OS was directed by this Court on 29/7/2021 to start representing the children[9], they must take part in all hearings affecting the children with no exception to the trial of F’s Summons even though it was taken out back on 17/9/2020 for interim shared care and control of the children.  Given the many outstanding issues that need to be addressed[10] before the OS was in a position to take part constructively and meaningfully in the trial of F’s said Summons, this was an exceptional circumstances that had arisen within the ambit of the Civil Justice Reform which warranted vacating the trial of F’s said Summons.  That said, it served no legitimate purpose for hearing the parties and to do so would only increase parties’ costs and to waste Court’s limited resources, leaving aside elevating acrimony between the parties.

42.  Complaint was also made to this Court’s refusal to accommodate F’s request to hear the Recusal Summons substantively on 8/3/2022, which date was originally listed for trial of F’s Access Summons but was vacated by the Recusal Summons.   It was also said by F that the time frame proposed for the filing of affirmations/submissions, namely 3 weeks for M followed by 2 weeks by F, would bring up to 1/3/2022 with 7 more days to follow before 8/3/2022.

43.  F’s Recusal Summons was served on M’s lawyers and correctly so, also served on the OS representing the children.  Although it was likely or probable that the OS might take a neutral stance on F’s recusal application, it could happen that M’s affirmation/submissions in opposition and/or F’s affirmation/submissions in reply (both of which had yet to be filed and seen) contain information over the children which called for OS’s assistance by way of affirmation/submissions. The time frame on exchange of affirmation/submissions proposed by Senior Counsel Miss Yip, namely, that 3 weeks for M followed by 2 weeks thereafter by F, with respect, had not taken into account such scenario.   It is procedurally wrong for F to take it for granted as to OS’s stance without the parties’ affirmations/submissions “on the table” but to plainly ignore or exclude the OS’s right to file affirmation/submissions as they may see fit and necessary to do so.  It is clear from Miss Yip, S,C.’s time frame aforesaid that no heed was taken of the OS.

44.  Given the vulnerable characteristic of the children in this case for whom the OS was required to represent them, this case is not one of those “run-of-the-mill” recusal application in a “childless” marriage or, with children who does not require separate legal representation.

45.  Further, leaving aside the OS’s right to file affirmation/submissions as they may see fit and necessary, and given the parties’ affirmations and exhibits filed so far are voluminous in terms of number of pages, it is fair and reasonable for both parties to have the same time span of 3 weeks each for filing of affirmation/submissions notwithstanding that F was happy with having only 2 weeks to file his affirmation in reply, apparently hoping to catch up with the date of 8/3/2022 which Senior Counsel Miss Yip had so submitted at the hearing.  M’s side in opposition had asked for 3 weeks.  As M’s Senior Counsel rightly submitted[11], it is fair for both parties to be given sufficient time to prepare their respective affirmation/submissions. The Court should be able to resist being steamrollered in its case management decision.  More importantly, I am minded to say that court’s resources must be fairly and evenly distributed amongst all other court users and not be manipulated or monopolized by parties in any particular case.

46.  The Covid-19 pandemic had caused a further session of General Adjournment Period (“GAP”) starting from 7/3/2022 to 11/4/2022 (both days inclusive).  With the benefit of hindsight, had the date of 8/3/2022 been utilised for replacing the trial of F’s Summons for interim shared care and control with the trial of F’s Recusal Summons, it would still have been vacated and re-fixed in any event as it falls within the GAP. 

47.  I accept that the Court does not have any crystal ball for knowing in advance at the hearing on 11/1/2022 that a further session of GAP was forthcoming in March 2022.  Had the Recusal Summons been fixed for 8/3/2022, F might possibly argue that it still could be heard as it falls within the “exceptional and urgent” category of cases which, according to the guidelines for GAP, could still be heard.  In my view, given the increased access arrangement from 3 days a week to 4 days a week plus non-access days telephone access, which essentially gave F daily access to the children but in different form, F could hardly say that the Recusal Summons was one of those “exceptional and urgent” cases within GAP that this Court should hear and to consider recusing himself.  Further increasing interim access and the uplift of supervised access vis-à-vis asking the Court to recuse himself fall under different context from any perspective.  In my view, F was cherry picking not only on applications that he wished to proceed, he was also judge shopping around to his favour.

48.  Although F conceded that this case is at the highest end of high conflict cases requiring speedy resolution[12], as a matter of fact, he was “the frolic of his own”.  With the benefit of full legal advice, F ought to know or to have been advised on the practical meaning and effect of the terms of his Recusal Summons; in particular, paragraph 2 therein which would inevitably delay rather than advance speedy resolution of the children matter.  It is fundamentally and conceptually wrong for F to be able to :- (a) on the one hand specifically ask for adjournment of all hearings (emphasis added) and; (b) on the other hand to “complain” that all interim matters are in the void[13] without saying a single word as to any interim arrangement in his Recusal Summons.  F could not complain that the Court did not descend into the arena and grant interim reliefs when he had not, but could have, asked for it.

49.  In the absence of any consensus and requests from both parties, it is procedurally wrong for the Court on its own initiative (emphasis added) to proceed with granting interim reliefs without noting that the key question of recusal had been raised which had yet to be determined.  Apart from unfairness to M who was opposing the recusal, it would create complications if interim orders and directions are granted and implemented during the adjournment period before the substantial trial of the recusal application if, at the end, it turned out to be successful. 

50.  It is readily discernible from the above chronology of events that any complaint or grievances levelled at this Court for disregarding the welfare of the children, failing to direct another judge to hear F’s Access Summons and Schooling Summons and to make orders on other interim matters are devoid of merits and must fail.

51.  Grounds 1 and 2 of F’s Grounds of Appeal have no reasonable prospect of success.

52.  Ground 3 referred to the Adjournment Order was irrational, this Court not carrying out its task and was in breach of natural justice.

53.  Given full and careful consideration to each and every one of the case management directions at each stage of the proceedings within the above chronology, not even to mention the exceptionally long hours taken up for resolving purely interlocutory matters through the granting of directions, it is abundantly clear that any criticisms of irrationality are self-serving statements purposely made which are devoid of merits and bound to fail.

54.  Further, F’s criticisms or complaints on this Court not carrying out its tasks and in breach of natural justice was raised clearly upon his dissatisfaction that his desired results not being accepted by the Court rather than upon any substantial grounds.

55.  Hence, I find Ground 3 of F’s Grounds of Appeal have no reasonable prospect of success.

Any other grounds in the interests of justice ?

56.  Although F did not specifically plead or separately raise this limb in his draft Grounds of Appeal as he might have included this in his Ground 3 abovementioned on breach of natural justice, I have given full and careful consideration and come to the conclusion that there are no other grounds for leave to appeal to be given to F in the interests of justice.

57.  Quite to the contrary, I find that interests of justice would not be secured or observed if leave to appeal was to be granted to F. 

Decision

58.  For all the reasons above, I decided that F’s application for leave to appeal fails.

Costs

59.  F had failed completely in his application for leave to appeal.  I decided that the normal order of costs to follow the event must be fair and reasonable.

60.  And I will so order.

61.  I also grant Certificate for 2 Counsel.

Orders

62.  I now grant the following Orders :-

(a)  F’s Summons dated 25/1/2022 for leave to appeal be dismissed;

(b)  F do pay to M the costs of the application for leave to appeal; including all costs reserved (if any), to be taxed if not agreed; and

(c)  There be Certificate for 2 Counsel.

63.  This is a costs order nisi which would become absolute if no application to vary the same was made within 14 days from the date of this Decision.

64.  The only remaining thing is for me to express gratitude to the valuable assistance rendered to this Court by Senior Counsel, Counsel and the legal teams for both parties.

[1] Paragraph 8 of this Decision

[2] See paragraph 258 of Miss Lee’s Report

[3] See paragraphs 259 and 260 of Miss Lee’s Report

[4] See NPYJ v SMRC [2020] HKCA 832/CAMP 155/2020 §23

[5] Paragraph 2 of F’s Recusal Summons

[6] Paragraph 3 of M’s Skeleton Submissions

[7] See paragraph 21 of this Decision

[8] See paragraph 30 of this Decision

[9] See paragraph 21 of this Decision

[10] See paragraph 23 of this Decision

[11] See paragraph 11 of M’s Skeleton Submissions

[12] See paragraph 16 of F’s Skeleton Submissions

[13] See paragraph 11(d) of F’s Skeleton Submissions