NCKP v. CMY

FCMC 14399/2008

[2025] HKFC 44

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 14399 OF 2008

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D E C I S I O N
(LEAVE TO APPEAL)

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1.  This is a hearing of the Respondent (“W”)‘s application for leave to appeal against my Judgment on W’s appeal against Master June Cheung’s order dated 15 December 2023.  Appeal against Master’s decision was conducted by way of re-hearing, after which I handed down my Judgment on 12 December 2024 making the following orders:

  (1)  W to repay the Petitioner (“H”)  forthwith a sum of HK$5,600,000 which was maintenance mistakenly paid by H;

  (2)  No order was made in respect of W’s application for stay of execution of the Master’s Decision; and

  (3)  Costs to be paid by W to H with certificate for counsel.

2.  On 24 December 2024, W issued her present summons for leave to appeal against my Judgment.  She also asked for a stay of execution of the Judgment pending her present appeal.

3.  W’s application for leave to appeal is opposed by H.

4.  The background and the parties’ evidence have already been laid out in my Judgment and they will not be repeated here.

Leave to Appeal

The Law

5.  Leave to appeal is governed by s. 63A(2)  of the District Court Ordinance, Cap 336 which reads:

“(2)  Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that-

(a)  The appeal has a reasonable prospect of success; or

(b)   There is some other reason in the interests of justice why the appeal should be heard.”

6.  As to what constitutes a reasonable prospect of success, it has been held that the prospects of succeeding in the intended appeal must be “reasonable” and therefore more than “fanciful”, but without having to be “probable”: SMSE v KL[1].

W’s Grounds of Appeal

7.  W was represented by Mr. Leo Wong of counsel, who also appeared at the re-hearing.  According to Mr. Wong, there are 3 main grounds of appeal:

(1)  This court was procedurally wrong in determining H’s summons for repayment based on affirmation evidence alone and without affording W a chance to cross-examine the deponents on H’s side.

(2)  This court was wrong in deciding the issues on balance of probabilities, instead of a higher threshold as in summary judgment applications.

(3)  This court misunderstood W’s position and ordered her to pay within a specified deadline.

Ground 1: Was the Court wrong in procedure?

8.  At the re-hearing, the primary position of W was that H’s application for repayment under section 23 of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”)  was an independent cause of action and the procedures to be adopted should be the same as an ordinary civil action.  Therefore, formal pleadings should be ordered and H’s application should not have been decided on affidavit evidence alone.

9.  In Mr. Wong’s written submissions (paragraph 3)  for the present leave to appeal application, more emphasis is now placed on this court’s refusal to allow oral evidence to be heard with cross-examination before proceeding to a determination on the merits of H’s claims.

10.  In my judgement, the court does of course have powers to order pleadings, or direct viva voce evidence to be heard.  But the exercise of such case management powers was a matter of discretion when the matter came before Deputy Judge Cheung (when Master June Cheung then was)  at the call-over hearing.  Even at the substantive argument before the learned Master on 15 December 2023, there was still no such request for pleadings, nor the hearing of viva voce evidence.  W only made this request at the re-hearing before this court on 22 March 2024. 

11.  If one should look at the parties’ respective evidence, there was clear and unequivocal evidence from H (and his witnesses as well)  that H had never been told of W’s re-marriage until very recently.  There was even evidence from the son and daughter-in-law that they were expressly told by W not to inform H as that would affect the maintenance payable by H.  On the other hand, there was no evidence from W and her witness that they had, or anyone had ever informed H of W’s re-marriage.  The evidence on H’s unawareness of W’s re-marriage was clear and overwhelming.  Viewing in this light, W’s very late request for cross examination, especially only after losing her argument before the learned Master was purely a fishing exercise hoping that something might come up during cross examination.   I am afraid that W’s request for cross examination was simply too late to be entertained and was therefore rejected by this court.

12.  W also complained that this court did not address the issue of limitation.  It was W’s case that H’s claim for repayment was time barred after a lapse of 6 years.  However, with the court’s findings that H was unaware of W’s re-marriage and the payment of maintenance was therefore under a mistake, the limitation period, if any, simply did not start to run.  There is no substance in W’s appeal in this regard.

13.  I am not satisfied that W has any resonable prospect of success in overturning the court’s decision on Ground 1.

Ground 2: Was this court wrong in deciding the issues on the balance of probabilities?   

14.  It was submitted by Mr. Wong that this court should not have decided the issues on balance of probabilities.  Instead, it should have adopted a higher threshold usually applicable in summary judgment applications.

15.  In my view, the standard of proof in determining H’s summons or issues arising therefrom must be on the civil standard of balance of probabilities.  After all, H’s summons was not a O.14 application which requires a Defendant to show a triable issue before the court would grant leave to defend.  There is no substance in this ground of appeal.

Ground 3: Was the Court wrong in ordering W to make the repayment forthwith?

16.  It was W’s case that she was unable to pay within a short period of time and therefore, this court should have simply ordered “W to pay a sum of HK$5,600,000 to H” without adding the word “forthwith”.

17.  In my view, an order without allowing time to pay means that the payment has to be made forthwith. Therefore, when the learned Master allowed W to pay within 3 months, it was in fact an indulgence granted to her.

18.  As to W’s inability to pay within a short period of time, I note W was not a person without means. She still owns a Tuen Mun property with a car park with estimated value at HK$10,000,000.  She was able to take a reverse mortgage (shortly after she was confronted with H’s overpayment)  to obtain a loan of HK$1,820,000.  There was no evidence to suggest that she could not liquidate or take further loans by pledging the Tuen Mun property or carpark as security.  There were also no reasonable proposals from W for payment by instalments for the court’s consideration. I was satisfied that she had the ability to pay, whether within 3 months or even forthwith.  After all, it was almost 15 months ago (on 15 December 2023)  when Master June Cheung made her orders and W should have been enough time to make arrangement for payment, whether by way of liquidating her assets or by securing further loans.  There is equally no substance in W’s submission on Ground 3.

Conclusion

19.  After considering all 3 grounds of W, I am not satisfied that she has any reasonable prospect of success in her intended appeal, and I also do not see any other reason in the interests of justice that leave to appeal should be granted, W’s application for leave to appeal is hereby dismissed.

Stay of Execution

20.  An important consideration in whether a stay of execution should be granted is whether there are strong grounds of the proposed appeal and this hurdle is higher than that of chances of success for considering whether leave to appeal should be granted: Asha Harkishin Premsingh v Harkishin Isarsingh Premsingh Kishinani [2000] HKEC 1187.   When this court refused to grant leave to appeal against the repayment order, the application for stay of execution also failed.

Orders

21.  Based on the above discussion, Paragraphs 1 and 2 of W’s summons dated 24 December 2024 are dismissed.

Costs

22.  Costs to follow event.   W fails in her applications and H should be given costs of the summons, including all costs reserved with certificate for counsel, and such costs are to be summarily assessed on paper.   This order will be in the form of an order nisi, to be made absolute upon the expiry of 14 days from the handing down of this Decision.  I note that H has already lodged his statement of costs on 7 January 2025 asking for HK$60,014 (including counsel fee of HK$23,000).  After the costs order being made absolute, I direct W to lodge and serve a 1-page list of objections within 14 days so that the court could proceed to summary assessment.

Representation: