D, W v. H, H T AND OTHERS

FCMC 2662/2021

[2025] HKFC167

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 2662 OF 2021

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J U D G M E N T
( Leave to Appeal – Transfer to High Court
By paper disposal )

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1.  This is the Petitioner wife’s (“W”) leave to appeal application against my dismissal of her application to transfer this matter to the High Court.

2.  W’s application for transfer was made on 9 May 2025, the hearing took place on 27 June 2025 (the “Transfer Hearing”), and an ex-tempore judgment (the “Transfer Judgment”) was handed down on the same day dismissing her transfer application.

3.  W filed her leave to appeal application on 11 July 2025. The 1^st Respondent husband (“H”) opposes her application.

4.  W acts in person, H is legally represented.

The Background

5.  The parties commenced proceedings in 2021. They attempted private dispute resolution in August 2023 but this fell through. Since then, there have been various applications from both sides, and the parties have traversed a lengthy trial on the H’s section 17 Summons, which decision was handed down in February 2025.

6.  Other applications in this case include H’s show cause application, W’s transfer of this case to High Court, W’s Section 17 Summons, yet another one of H’s section 17 Summons, and discovery application.

7.  Upcoming, W’s Specific Discovery Summons will be heard on 24 November 2025; and a trial for ancillary relief has been set down for 15 days in January 2026, where W’s section 17 Summons and another one of H’s section 17 Summons have been rolled up into the trial.

W’s application for filing late submissions

8.  When W took out her application for leave to appeal, she filed her Summons and Notice of Appeal, but there was no submission. In her covering letter to the Summons, she draws reference to the “guidance provided by the Court of Appeal in ZJ v XWN [2018] 3 HKLRD 644” and invite the Court to :

“1. Deal with the present application by paper disposal;

2.  Provide the necessary directions for the further handing of the application, including for the Petitioner in filing her Skeleton Submissions together with the List of Authorities, and the 1^st Respondent to file his Submissions in reply, together with the List of Authorities (if any).”

9.  H filed his submissions in opposition to the leave to appeal application on 24 July 2025. In this submission, H also says that he has not been served with the “New Arrangement for Application for Leave to Appeal in the Family Court” dated August 2018” (“Appeal Arrangement”) contrary to paragraph 5 therein.

10.  W then engages legal representation and filed a Summons on 29 August 2025 seeking leave to file her Skeleton Submission and for H to file supplemental submission thereafter.

11.  The hearing on this latter application was held on 11 September 2025 where the solicitors for both parties appeared, but not the parties themselves. At this hearing, the Court considers the Appeal Arrangement with both parties.

12.  W argues that she only intends to “regularise the procedure and complete her application” and “it would be too onerous for any party to comply with the New Arrangement if parts of the leave application could simply be refused due to a technical breach”. She also says that she honestly believed (now admitted to be a mistake) that the Court would give further directions, and that she only engaged solicitors on 30 July. Her solicitors also add that any prejudice on the H from this application is “self-induced” as H has “reversed the sequence of filing of the Skeletons”.

13.  It is the Registry practice that every person coming into file an appeal in the Family Court will be handed the Appeal Arrangement, it is not the W’s case that she is not in receipt of this document.

14.  It is clear that paragraph 4 of the Appeal Arrangement indicates clearly what documents are to be submitted for the appeal and included at 4(3) is that a written statement / submission is to be filed.

15.  At the hearing of 11 September 2025, I drew W’s solicitors’ attention to paragraph 3 and 6 of the Appeal Arrangement. These two paragraphs read as follows:

“3. Where such an application is made, no date for hearing will be given by the Court. Oral hearing will only be fixed if the Court so directs. The following directions are deemed to be given upon the filing of the summons, unless the Trial Judge otherwise directs.”

“6. If the Applicant shall fail to comply with the above new arrangement, he/she may run the risk of having his / her application struck out and dismissed on the ground of failure to prosecute the application with due diligence.”

16.  In my view there is no basis for W to ask for directions in the above-mentioned covering letter. Furthermore, in seeking indulgence from the Respondent and the Court to only now file her submission (an application taken 7 weeks after her leave application and more than 4 weeks after H has filed his submission), her solicitors says in her speaking note that the prejudice H would suffer is self-induced as he has, so to speak, “jumped the gun”, in filing their reply submission first.

17.  I disagree with the W’s position in her application for filing of late submission; her failure to provide all the documents initially already opens her leave application to the possibility that it could be struck out. W has now turned around and says it is the H’s fault while all that H has done is to respond promptly in accordance with the Appeal Arrangement. The W’s application to file her submission was dismissed with Costs ordered against her.

Legal principles on Leave to Appeal

18.  Under Section 63A(2) of the District Court Ordinance, leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

19.  The relevant test of whether an 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 therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF HCMP 288/2011. Even if this threshold requirement is met, the Court still has a discretion to refuse leave (Hong Kong Civil Procedure 2025, 59/2A/4).

20.  The refusal to transfer a matter up to the High Court is a case management decision, and the law with regard to appealing against a case management decision is trite. On this I turn to the decision of Chu JA in the case of NPYJ v SMRC, [2020] HKCA 832, where she propounded the following principle:

“23. It is also well established that case management is pre-eminently within the province of the trial judge and the appellant court will only interfere in very exceptional circumstances: Cheung Yee-mong v So Kwok-yan [1996] 2 HKLR 48, 51. This Court has consistently held that an 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 his order was irrational: see Lee Tak Yee v Chen Park Kuen [2001] 1 HKLRD 401; Kan Miu Wah v Aeroflot Russian International Airlines (unreported) CACV 142/2006; and Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887.”

W’s application for leave to appeal

Ground 1: That in paragraph 9 of the Judgement, I have given no explanation as to why this was not an acceptable basis for transfer

21.  On this point, W made reference to a High Court matter of HCA XXX/XXX.

22.  It was made clear at the Transfer Hearing that HCAXXX/XXX had been stayed by Master KW Wong pending the conclusion of the present ancillary relief proceedings. The High Court action is therefore no longer “live” at this point of time.

23.  I have stated clearly in paragraph 9 of the Transfer Judgment that “I agree with the 1^st Respondent’s case”, and when this is read in context under the previous paragraphs and the section titled “Consolidation” (§§6-9 refers), the reason is clearly apparent as I made reference to the stay of the High Court proceedings at §7.

24.  I fail to see how this ground of appeal has any merits in an appeal.

Ground 2: Court has failed to properly consider W’s argument that she is not responsible for the delays in the proceedings

25.  I have considered W’s argument in §11 of the Transfer Judgment. W says she has been inundated with various proceedings while acting in person.

26.  While W argues at the Transfer Hearing that she is not causing the delay in these proceedings, there is no reference in the Transfer Judgment that says she is responsible for any delay.

27.  A comment was made at §13 of the Transfer Judgment that W had time to take out her interlocutory proceedings between December 2024 (first CMH) and the deadline imposed of 24 March 2025. This deadline was subsequently extended twice by consent to 28 April 2025, and then 25 June 2025.

28.  These proceedings have run its normal course of a typical big money case with various satellite applications. The CMH in December 2024, which also set down the 15 days trial in January, aimed to case manage various proceedings as well as placing the aforesaid deadline on interlocutory applications, so that parties can take out their respective applications.

29.  With refence to §14 of my Transfer Judgment, it is not at W’s liberty to argue that because she is acting in person that there should be more time given to her to prepare her case.

30.  I do not see how this ground has any prospect of success on appeal.

Ground 3: Court placed over emphasis on maintaining the milestone trial date in January 2025 without adequately considering that there are exceptional circumstances which justify the trial dates to be moved

31.  In my view, this is a seriously misconceived ground.

32.  W says her affirmation and submission for the Transfer Hearing discussed the justification for the case to be transferred. Those arguments were dealt with at the Transfer Hearing, yet she has given no specificity here as to what are the exceptional circumstances that I have not adequately considered.

33.  The definition of “milestone date” is at Order 25 1B of the Rules of High Court, which must not be varied unless there are “exceptional circumstances”. This principle is also echoed in paragraph 42 of Practice Direction 5.2 (Case Management) which provides as follows:

“Milestone dates will be immoveable save in the most exceptional circumstances and for that purpose, for instance, late instructions from client, change in the team of lawyers, the absence of prejudice to the other party which cannot be compensated for by costs, will not be treated as exceptional circumstances.”

34.  While it is an important task to uphold the sanctity of the milestone date, it is but one of the several factors I have considered at the Transfer Hearing.

35.  Under this ground, W also complains that she is unable to ascertain the family pot and hence unable to prepare her case due to the H’s alleged dissipation of assets. Her specific discovery application taken out in May 2025 will be heard in November 2025, her Section 17 has been rolled up to the main trial and will be dealt with in January 2026, wherein proper legal principles shall be engaged to deal with these issues.

36.  I fail to see how this ground of appeal has any reasonable prospect of success.

Ground 4 and 5: That I have erred in categorising the argument of “apparent bias” as a “new point” raised by W in her Affirmation in Reply

I have further erred in concluding that the allegation of bias and conflict of interest do not amount to a ground to apply for a case to be transferred

37.  The apparent bias and conflict point only appears in W’s Reply Affirmation in her application for transfer of proceeding, and the Respondent rightly submits at the Transfer Hearing that they had no opportunity to respond. This point has been dealt with in §§15-21 of the Transfer Judgment.

38.  W says this is not a new point as she is repeating her previous allegation of apparent bias. If the W is referring to her previous recusal application taken out on 3 January 2024, this was withdrawn by her on the day of the recusal hearing on 23 August 2023 when she was legally represented.

39.  Even if this point were to be considered (which is not accepted), the W was asked at the Transfer Hearing (§19 refers) and she was unable to cite any legal principles or precedents that support her contention that apparent bias and conflict is a basis for transferring her case to the High Court. In her current grounds of appeal, there is no legal basis cited for her contention either.

40.  In the same tenor as paragraph 17 above, W says under this ground that H could have applied for leave to file a supplemental affirmation to address this issue of bias she belatedly raised. Once again, W has trespassed on rules of proper procedures, (i.e. to deal with in a reply only matters arising from an affirmation in opposition); and then to turn around to blame H for failure to do something to regularize what she has done wrong.

Ground 6 and 7: The Court has failed to adequately appreciate the complexity of the W’s case involving the substantial amount of matrimonial assets

The Court has failed to consider the case of AK v MYNT [2020] HKFC 28 and distinguish the facts therein from the current proceedings

41.  This issue has been dealt with at §§22-26 of the Transfer Judgment.

42.  W says that I have failed to consider the AK case and that it was similar to this case in terms of:

a. Case involving “multi-jurisdictional corporate issues, shareholder disputes, international taxation and potential criminal and tort issues”

b. Value of assets is substantial … more than $200,000,000

c. “Complex factual and legal issues” relating to numerous areas of law

43.  The extent to which W submits her case is similar to the AK case is superficial and generic. These descriptions could well describe a number of big-money cases in the family court. Furthermore, the fact that another Judge in the Family Court chooses to transfer the AK case to the High Court in no way bind my hands nor affect my decision; all of such discretionary case management decisions are fact based.

44.  W then says I have only considered 2 cases put forward by H, and says I have misinterpreted W’s argument in that it is not her case that the Family Court lacks expertise, but that the substantial amount of assets involved with complex issues that justify the transfer. The fact that I have quoted 2 cases on this point does not mean I have only considered 2 cases. Furthermore, it is clear that the expertise that Family Court has as a specialist court in dealing with issues of this nature must be a relevant factor in my consideration and in responding to a “complexity” argument.

45.  Again, I see no merits in this ground of appeal.

Conclusion

46.  Generally speaking, I am not of the view that the W has identified in her draft Grounds of Appeal any points that has any real prospect of success on appeal; nor any other reason in the interests of justice why leave should be granted.

47.  I am of the view that my decision to refuse W’s application to transfer this matter to the High Court was a proper exercise of my case management decision power; her leave to appeal application is therefore dismissed.

Costs

48.  I see no reason why Costs should not follow the event, and accordingly make the Order that the Costs of this Leave to Appeal application be to the H. This to be Costs Order nisi to be made absolute 14 days hereof.