TSANG SIU SHING v. LAM KWAI HING AND ANOTHER

FAMV No. 2 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2 OF 1999 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV No. 259 OF 1997)

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DETERMINATION

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Chief Justice Li:

1. This is the determination of the Appeal Committee on the application by the applicant ("the husband") for leave to appeal. The respondents will be referred as "the wife" and "the wife's mother".

2. The husband and the wife were married in December 1990. They had regarded themselves as previously married after a Chinese wedding banquet held in 1984. On the wife's petition for divorce, a decree nisi was made unopposed in August 1995. The decree was made absolute in February 1996.

3. On the breakup of the marriage, the husband and the wife were in dispute on the financial matters. The husband also applied for avoidance of disposition of the transfer in 1991 of a flat in Mongkok by the wife to her mother who was an intervener.

4. The matter was heard by His Honour Judge de Souza over a number of days. He refused the husband's application for avoidance of disposition of the flat in Mongkok. On the basis of the clean break principle, he ordered the husband to transfer his interest as joint tenant of a flat in Tseung Kwan O to the wife and to pay maintenance at $5,000 per month for the period 1 June to 1 November 1997.

5. The husband appealed to the Court of Appeal (Nazareth VP, Liu and Leong JJA). The appeal was heard on 2 July 1998 and judgment was delivered on 14 July 1998. The Court of Appeal allowed the appeal to a considerable extent. Basically, they decided that the clean break principle was not appropriate having regard to the circumstances. The orders made included an order that the wife be permitted to remain in the Tseung Kwan O flat rent free until 14 July 1999, an order that the wife do transfer her joint ownership interest in that flat to the husband on 15 July 1999 and an order that the husband pays maintenance to the wife. They upheld the Judge on refusing to avoid the transfer of the flat in Mongkok to the wife's mother.

6. On 22 July 1998, the husband applied to the Court of Appeal for leave to appeal to the Court of Final Appeal. This application was made within time. On 27 November 1998, the Court of Appeal (Chan CJHC, Nazareth VP and Liu JA) refused the application.

7. Under section 24(4) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, the application to us for leave must then be made within 28 days of 27 November 1998. This was not done. It was only on 26 January 1999 that the husband filed the notice of intended application. On 1 February 1999, he filed the application to extend time.

8. Irrespective of whether we are here concerned with a final judgment where the matter in dispute on the appeal amounts to or is of the value of $1 million or more, the husband has to persuade us to extend time. In the circumstances, we do not consider it appropriate to extend time. In the exercise of our discretion, we refuse to do so.

9. In so exercising our discretion, we have taken into account that the matters in dispute do not give rise to any question of law or principle, that they were given due consideration in the Court of Appeal and that there are concurrent findings of fact in relation to the Mongkok flat. Further, as was observed by Nazareth VP in the Court of Appeal at the conclusion of his judgment: ".... the parties should by now be able to see that if they do not end their litigation none of them will in the end profit by even more of what assets are or may become available being swallowed up by legal costs."

10. Accordingly, we refuse to extend time and dismiss the application for leave.

11. We would note that there is an outstanding claim against the applicant by his former father-in-law for $650,000 in respect of a loan which was apparently used to buy the Tseung Kwan O flat. If judgment is entered against the applicant and enforcement is sought, it is possible, we put it no higher, that there may be a basis for him to make an appropriate application to the Family Court to vary the maintenance provisions in the Court of Appeal's order.

12. We make no order as to costs against the husband. We make an order for taxation under the Legal Aid Regulations in respect of the wife's costs.