HK v. TP

FCMC 245 / 2017

[2019] HKFC 23

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 245 OF 2017

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Leave to Appeal

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Introduction

1.  The intervener is the son (“the son”) of the petitioner (“the father”) and the respondent (“the mother”). He filed a summons on 24 April 2018 for leave to appeal against my judgment handed down on 13 April 2018, in that I have ordered the son be joined as the intervener and the Family Court should determine of beneficial interest of the 7 landed properties as preliminary issues and that of a section 17 application.

2.  Subsequently, the son amended his notice of appeal on 24 September 2018.

Background

3.  The petitioner filed a petition on 9 January 2017 on grounds of 2-year separation. As at the date of this hearing, decree nisi has not been granted. After the filing of petition, the father commenced a civil action in the Court of First Instance (HCA 1524 of 2017) on 28 June 2017 against the son that 4 out of 7 of the landed properties were held in trust for the father. The son then commenced another action in the District Court on 11 July 2017 against the father in respect of 2 out of 7 landed properties (DCCJ 3137 of 2017) of which has been stayed pending determination of HCA 1524 of 2017.

4.  The mother filed a summons on 22 November 2017 (“the mother’s summons”) for an order to join the son as an intervener, to determine the beneficial interest of 7 landed properties as preliminary issues as well as to set aside certain dispositions pursuant to section 17 of the Matrimonial Proceedings and Property Ordinance, Cap 192.

5.  At the hearing of the mother’s summons on 22 March 2018, the father took a neutral stance.

Applicable legal principles

6.  Leave to appeal shall not be granted unless the court is satisfied the appeal has a reasonable prospect of success or there is some other reasons in the interest of justice why the appeal should be heard. (See section 63A(2) of the District Court Ordinance, Cap 336.

7.  Reasonable prospect of success connotes the prospect of succeeding must be reasonable and more than fanciful, without having to be probable.  An applicant is required to show more than just an arguable case, but he does not have to demonstrate the appeal will probably succeed. Even if the court takes the view that there is a reasonable prospect of success, it still remains adiscretion as to whether to grant leave, though the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court in exercising its discretion. (See commentary of Hong Kong Civil Procedure 2018, §59/2A/4)

The son’s application for leave to appeal

Ground 1

8.  The son submitted I have erred to have said the HCA 1524 of 2017 action has only reached pleadings stage. At time of January 2018, the parties have completed discovery stage already. The HCA 1524 of 2017 action was more advanced than this proceeding.

9.  Ms Lam replied the son was relying on an affirmation which was filed on 26 March 2018, notwithstanding it was filed without leave of Court, it was filed after the hearing of the mother’s summons on 22 March 2018. This ground could not stand.

10.  I agree with Ms Lam’s submission. Even if the parties have completed the discovery stage, I have directed the parties to report the progress of this proceedings to the handling master of the Court of First Instance at time of handing down my judgment. As parties of the HCA 1524 of 2017 have not yet reached stage of case management conference or to have fix trial dates, no milestone dates would be disturbed, I see it is still fit to have the issues to be determined in Family Court.

Ground 2 & Ground 3

11.  The son submitted I have erred to state why the dispute of beneficial ownership of the 7 landed properties shall be tried in the Family Court rather than the Court of First Instance and I have also erred in applying an incorrect approach in reaching my decision. The son cited Zhou Cui Hao v. Ting Fung Yee [1999] 3 HKC 634, Chan CJHC (as he then was). It is decided in Zhou Cui Hao that a decision of judge should come with analysis of evidence and give reasons why he has reached a particular conclusion or decision.

12.  I have cited in my judgment of Wong To Yik v. Wood Lock Ointment Ltd v. Merika Medicine Factory Ltd (HCA 562 & 2569 of 2014, HCMP 1550 of 2014, unreported 10 March 2018). The purpose of joinder is to bring all parties to disputes relating to one subject-matter before the court at the same time so that disputes may be determined without delay, inconvenience and expense of separate actions and trials. The situation before me is a multiplicity of proceedings in both Family Court, the Court of First Instance and also the District Court. In consideration of time, costs and effectiveness, both the father, the mother and the son should litigate in a forum and I see the Family Court should be the appropriate one.

Ground 4

13.  The son submitted he has incurred over HK$1 million costs in HCA 1524 of 2017 already. It would be unfair to him if he has to be joined in the Family Court proceedings where more costs are to be incurred. The father shall be blamed of commencing parallel proceedings and the son as the defendant in HCA 1524 of 2017 shall not be penalized by duplicating costs in the Family proceedings.

14.  Be it the issue on costs was no part of the son’s submission in the hearing in 22 March 2018, I take into account the amount of costs the son has incurred in HCA 1524 of 2017, neither would it be costs effective to have same matter to be litigated twice.

15.  The son himself have commenced DCCJ 3137 of 2017, he was also participating in duplication of proceedings.

Ground 5

16.  The son put great emphasis on the evidence of his defence in HCA 1524 of 2017. Ms Lam has pointed it out correctly that I am not in a position to consider the evidence and to make finding of facts on the disputes between the father and the son in HCA 1524 of 2017 in the mother’s summons.

Ground 6, ground 7, ground 8 and ground 9

17.  The son submitted the Court of First Instance is in a better position to hear the trial because the HCA 1524 of 2017 action involved allegations of fabrication of documents and fraud. I have biased to have made  an order to facilitate the father and mother a convenient forum to resolve disputes. I have also biased to have only considered the time and resources of the father and the mother only.

18.  I understand the son had already spent time and resources in HCA 1524 of 2017. On a whole, the parties, i.e. the father, the mother and the son would have duplicated their resources should the issue on preliminary issues and section 17 application not been heard in Family Court.

Conclusion

19.  With the reasons foregoing, I do not see the son has a real prospect of success in the appeal. I also failed to see there are some other reasons in the interest of justice why the appeal should be heard. I refuse to exercise my discretion to grant leave of appeal to the son.

20.  I make the following orders:

(i)  The son’s (the intervener’s) summons filed on 24 April 2018 for leave to appeal against the judgment handed down on 13 April 2018 be dismissed.

(ii)  The son (the intervener) do pay the father’s (the petitioner’s) costs of the summons filed on 24 April 2018, with certificate for counsel, to be taxed if not agreed.