LLY v. LKY

HCMP 970/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 970 OF 2009

(ON AN INTENDED APPEAL FROM FCMC NO. 6897 OF 2003)

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D E C I S I O N

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Hon Le Pichon JA:

1.  This is an application for leave to appeal from a decision of Deputy District Judge T. Chan dated 19 February 2009 out of time.  The applicant who acts in person is the husband respondent in ancillary relief proceedings brought by the petitioner wife.  The judge refused to grant leave to appeal in her written decision of 4 May 2009.

Background

2.  This is set out in detail in §§2-8 of the judgment to which reference should be made.  In summary, after a 28-year marriage, the wife filed a petition for divorce on 16 June 2003 and a decree nisi was pronounced on 11 January 2006.  The husband who is 57 is a qualified executive engineer.  His employment has been unsteady since 1997 and he has been unemployed since 2004.  He is currently a CSSA recipient.  The wife is 55 and works as an accountant.  The younger daughter is in full-time education and will be completing her degree next year.

3.  The parties have a strong connection with the UK.  In 1992 a property was purchased there in joint names and was the former matrimonial home until the parties returned to Hong Kong in 1995.  The judge found that the wife had borrowed GBP 56,000 from her mother for the down payment which is still outstanding.  The UK property, which the parties have agreed has a net value of GBP 527,200, is the only significant matrimonial asset.

4.  The wife sought the whole of the benefit of the UK property and has intimated an intention to retire there while the husband claimed a half share and a periodical payment of $8,000 as from January 2005 up to the time he receives his share of the sale proceeds.

5.  The judge ordered that the UK property be sold in the open market at a price not below GBP 642,550 within two months of the decree absolute, granting the wife an option to purchase the husband’s interest for GBP 235,610.  She refused the husband’s request for a periodical payment.

This application

6.  The husband applies for leave to appeal the judgment out of time.  The summons for leave to appeal is dated 22 May 2009.  Time for appealing the decision expired on 18 May 2009 which, I note, is the date of the supporting affirmation.  The explanation for the delay is that the husband did not receive a copy of the decision of 4 May 2009 until 8 May 2008.  Further, being a person in receipt of CSSA payments, he had to apply for an exemption from the payment of the requisite fee, quite apart from the fact that he is a litigant in person with no knowledge of the procedural rules.

7.  Given the explanation and the fact that the delay was no more than a few days, whether or not leave should be granted would depend entirely on the merits of the appeal.  There are no written submissions from the wife who, like the husband, acted in person in the leave application and also for part of the trial.  According to the husband, a copy of the summons and supporting affirmations were served on the wife on 26 May 2009.

8.  The application is made on four grounds.  The first ground challenges the judge’s rejection of the husband’s application for periodical maintenance for the reasons set out in §52 of the judgment.  That was a matter that was within the discretion of the judge and an appellate court may not interfere with an exercise of discretion unless it is shown to be demonstrably wrong.  In so far as the husband is indirectly challenging the factual basis that the wife “has been shouldering the family expenses by herself for the period of time”, I can see no prospect of that challenge succeeding given the evidence before the judge referred to in §§25, 27, 28 and 29 of the judgment.  Nor do I see any prospect of any successful challenge to the exercise of discretion, there being other matters (such as the fact that the husband had been staying in Hong Kong property until October 2007) that the judge had taken into account in exercising her discretion.

9.  The second ground appears to be a challenge to the manner in which the judge exercised her discretion in granting the wife an option to buy the husband’s share in the UK property.  That part of the order was well within the judge’s discretion and any challenge is doomed to failure.

10.  The third ground challenges the finding of fact made by the judge as to the loan made by the wife’s mother of GBP 56,000 at the time the UK property was purchased.  An appellant who challenges a finding of fact made by the judge faces a high hurdle.  See Ting Kwok Leung v Tam Dick Yuen (2002) 5 HKFAR 336 at 350.  There was ample evidence before the judge to support her finding and I can see no basis on which that finding could be overturned.

11.  The fourth ground concerns an allegation made by the husband that the wife’s conduct had caused a diminution in value UK property.  That aspect was not a matter dealt with in the judgment.  The husband refers to the parties’ closing submissions in which this issue was addressed, suggesting that the judge was wrong when, in §13 of the decision, the judge commented that the issue “was not particularly raised to be argued at the trial, I do not see any reason for this to be dealt with the stage”.

12.  The fact that the matter formed part of the parties’ closing submissions does not invalidate the judge’s conclusion.  The trial itself last 10 days in the course of which numerous issues would have been raised and judge is best placed to evaluate their relative importance in the proceedings.  There is nothing to show the judge was in error.

13.  For these reasons, I do not consider that there is any merit in the husband’s application and I would refuse the application.  I would also make an order under O.59 r.2A(8) that the husband may not request that this determination be reconsidered at an oral hearing inter partes.

Hon Hartmann JA:

14.  In my view, it is evident that the judge at first instance has, within the limits of the family assets, made orders that are fair and just overall.  In matters concerning the equitable distribution of family assets, there can never be one perfect answer.  While no doubt, in parts, the distribution determined by the judge was disappointing to both parties - this being almost inevitable in such matters - it is plain to me that the various orders made by the judge took due note of the statutory guidelines and, viewed in the round, fell well within the boundaries of what was reasonable.  Accordingly, I am also of the opinion that the husband's application lacks merit and that it must be refused.  I agree with the order proposed in §13.

Hon Le Pichon JA:

15.  The order proposed in §13 is thus the order of this court.