HKW v. YYC

FCMC 3123/2021

[2022] HKFC 245

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 3123 OF 2021

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DECISION

( Leave to appeal )

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1.  This is the application taken out by the petitioner (“Wife”) on 23 September 2022 for leave to appeal against my decision made on 19 April 2022 (“Decision”) for, inter alia, interim access of a 3-year old child to the respondent (“Husband”).

2.  The Wife’s application for leave to appeal is about 4 months and 3 weeks out of time as the order for interim access is an interlocutory order and she has 14 days to apply for leave to appeal from 19 April 2022.

3.  This application is disposed of on paper without oral hearing.

Legal principles

4.  It is well settled principle that the appropriate tests when considering whether leave to appeal out of time ought to be given are :-

(a)  the length of the delay;

(b)  the reasons for the delay;

(c)  the prospects of success;

(d)  the extent of prejudice that would be caused to the other party

if leave is granted (see: Leung Yiu & Ors [1998] 1 HKLRD 257).

5.  Section 63A(2) of the District Court ordinance provides that for leave to appeal to be granted, the intended appeal should have a reasonable prospect of success or there should be some other reasons in the interest of justice why the appeal should be heard.

6.  A reasonable prospect of success involves the notion that the prospect must be more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Hartmann JA at paragraphs 8 and 9 of the Judgment).

7.  Further, the Court of Appeal said in NPYJ v SMRC [2020] HKCA 82 at para.22:

“22. First, as pointed out by the Judge and Mother, the decision to adjourn the Interim Access Application to 18 November 2020 is an interim order and a case management decision. In general, appeals against interim orders are not to be encouraged as they tend to distract rather than focus parties’ attention on the real issues of the case, apart from incurring additional and, in most instances, unnecessary costs and time. In the specific context of interim orders made in proceedings relating to children, it has been noted in Rayden and Jackson: Relationship Breakdown, Finances and Children at [49.55] that:

“Where the court makes an interim order appeals are actively discouraged as the usual remedy will be to invite the same court to review the provisions of that order at a later hearing. Necessarily, interim orders often call for difficult decisions to be made by and the lower court should endeavor to make such orders in a way which causes the least amount of harm to a child in that interim period. The court on appeal will be slow to interfere in decisions which are only intended to last for a relatively short period of time.”

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.” (emphasis added)

8.  In short, since interim orders are only intended to last for a short period of time, application for leave to appeal are actively discouraged.

Discussion

9.  Apart from making an order for interim access on 19 April 2022, I also order, inter alia, to set down the children issues for trial for 3 days scheduled from 30 November 2022 to 2 December 2022.

10.  The Wife took out this application only on 23 September 2022 ie about 4 months and 3 weeks after my Decision and about 2 months before the forthcoming trial on 30 November 2022. Her explanation is that she has received no legal advice. I reject her explanation and consider that she fails to give good reason for her substantial and inordinate delay.

11.  As to her grounds of appeal that the court was misled by the Husband’s legal representation regarding the contents of the Social Investigation Report dated 28 December 2021 (“SIR”), it is entirely without foundation and merit. The paramount concern is the welfare and the best interest of the child. I had carefully considered and taken into account some of the recommendations for access arrangement as stated in para.45 of the SIR at the hearing on 19 April 2022 with some modifications for interim purpose.

12.  The Wife also complained that the “draft” prepared by the Husband’s legal representation did not mention the comments made by me at the hearing. This is misconceived as my comments will not form part of the court order.

Conclusion

13.  To conclude, interim access to the Husband is just a case management decision and only intended to last for a short period of time until further order and pending the trial on 30 November 2022. The Wife has failed to demonstrate any reasonable prospect of success in her intended appeal and there is no other reason in the interests of justice why the appeal should be heard. Her application for leave to appeal should be dismissed.

14.  Regarding the question of costs, there is no reason why costs shall not follow event. The Husband’s legal representation has lodged his statement of costs for $21,870 but I am of the view that it is excessive. I order that costs of this application be paid by the Wife to the Husband summarily assessed at $12,000 forthwith.