RK v. YS

HCMP 1969/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1969 OF 2012

(ON AN INTENDED APPEAL FROM FCMC 4931/2012
(IN CONSOLIDATION WITH FCMP 151/2008))

________________________

________________________

J U D G M E N T

________________________

Hon Kwan JA (giving the Judgment of the Court):

1.  This is the father’s application for leave to appeal against the decision of Deputy District Judge Simon Lo on 8 May 2012 (“the Decision”).

2.  After a lengthy trial in 2009 and 2010 before HH Judge K W Wong, on 8 June 2010 the judge made an order of sole custody, care and control in favour of the father of two children of the family, AK and KK.  His order was set aside by the Court of Appeal (Rogers VP, Cheung JA and Bharwaney J; CACV 193/2010) on 22 October 2010.  The Court of Appeal made an order of joint custody (“the Joint Custody Order”) with care and control of the children to the mother and reinstated the arrangements which were in place prior to the decision of Judge Wong.  Seven months after the judgment of the Court of Appeal, the father issued his summons to vary the Joint Custody Order, seeking care and control of both children and sole custody of KK.  The application was heard by the deputy judge seven months later.  After an eleven-day hearing, the Decision was given dismissing the application.

3.  The father sought leave to appeal before the deputy judge.  This was refused on 30 August 2012 (“the Leave Decision”).  He renewed his leave application to this court 13 September and on the following day issued a summons in the District Court seeking an order that the care and control of the children be temporarily vested in him pending an investigation into an incident concerning AK on 13 September 2012.  On 18 September, the deputy judge adjourned that application to a call-over hearing on 8 November 2012, having given directions for the filing of evidence in opposition and reply and for an urgent social welfare report to be prepared.  If this court should grant leave to the father to appeal against the Decision, he sought leave to adduce evidence relating to the said incident on 13 September.

4.  We think it appropriate to determine the leave application on the papers before us without holding a hearing, pursuant to the powers given under Order 59 rule 2A(5)(a) of the Rules of the High Court.

5.  For leave to be granted, it is necessary for the father to establish his intended appeal has reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.  Reasonable prospect of success involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (SMSE v. KL [2009] 4 HKLRD 125 para. 17).

6.  The father’s appeal is an appeal against the exercise of discretion of the deputy judge.  It is well established that in an application for custody involving the exercise of judicial discretion, it is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong, that an appeal court is entitled to interfere.

7.  A total of six grounds were advanced by the father.  It is pertinent to note from the grounds that in most of them the complaint was often about the weight of the evidence that was or should be given, namely that the judge had given either too much or too little weight to certain parts of the evidence.  But the appropriate weight to be given to any item of evidence is a matter for the trial judge, not for the appeal court.

8.  The husband accepted that the judge had correctly set out the legal principles that res judicata, whether cause of action estoppel or issue estoppel, has limited application to custody proceedings, but contended that he had erred in law by proceeding only on the basis of findings of fact made previously and failed to reflect on the previous findings in light of new and subsequent evidence and failed to make findings on new and subsequent evidence.  This is not a valid or fair criticism.  It was not the father’s stance in the variation proceedings that he wished to challenge certain findings made earlier or that he had invited the deputy judge to try such issue of fact afresh (para 13 of the Leave Decision).  In those circumstances, the deputy judge saw no reason why he had to disturb previous findings or try them afresh, so he would rely on the findings of fact made by Judge Wong unless they are overturned by the Court of Appeal, he would further rely on findings of fact made by the Court of Appeal in CACV 193/2010, and he would approach the variation application based on the previous findings together with his own findings of fact of the events which happened after Judge Wong’s decision (para 16 of the Decision).  This approach cannot be faulted.

9.  We could detect no error of law or principle in the way the judge approached the subsequent events and made findings of them.  Quite clearly, he had considered all relevant matters raised on both sides, the fact that he did not mention any particular matter in the Decision does not mean he had not considered it (para 52 of the Decision; paras 17 and 18 of the Leave Decision).  He was entitled to make the findings he did about the reports of Dr Levy, and that the mother’s behaviour did not have effect on alienating AK’s relationship with the father.

10.  The deputy judge had not ignored that the mother had been in breach of some of the orders made by the court on custody matters.  His suggestion that the appropriate course was to enforce the court order by making an application to commit the mother for contempt of court if she was in wilful breach instead of applying to vary the Joint Custody Order is not in error (paras 90 and 105 of the Decision).

11.  The judge was alive to the reality that the court shall not grant a joint custody order and hope that the parties would know how to co-operate.  He considered there are other constructive ways to tackle the problem instead of changing the status quo and varying the Joint Custody Order (paras 93, 95, 104, 105, 112, 120 of the Decision).  Notwithstanding the breaches of orders by the mother, he had found in all the circumstances it was in the best interests of the children for care and control to remain with the mother.  He considered the Joint Custody Order still workable and saw no reason to vary it on the evidence before him.

12.  The father has not overcome the high hurdle for the appeal court to overturn the exercise of judicial discretion in his application to vary the Joint Custody Order.  The threshold requirement for leave to appeal is not met.

13.  It is unnecessary to say anything about the further evidence sought to be adduced by the father, as that formed the basis of his further application to vary the Joint Custody Order and is to be considered by the court below when the evidence is complete.

14.  We dismiss the father’s application for leave to appeal.  We further order pursuant to Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes, as this application is entirely without merit.

15.  We make an order nisi the father is to pay the mother’s costs of this application and there would be a gross sum assessment.  We direct the mother’s solicitors to serve a skeleton bill for summary assessment of costs within 7 days hereof and the father do have leave to serve his response within 7 days thereafter.