Z v. X

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Press Summary (Chinese)

FACV Nos. 11 & 19 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NOS. 11 & 19 OF 2013 (CIVIL)

(ON APPEAL FROM CACV NOS. 166, 251 & 252 of 2011)

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REASONS FOR JUDGMENT

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Mr Justice Ribeiro PJ:

1. The Court’s reasons for the result announced at the conclusion of the hearing are now given by Mr Justice Bokhary NPJ.

Mr Justice Bokhary NPJ:

2. For the reasons given in Sky Heart Ltd v. Lee Hysan Co. Ltd (1997-98) 1 HKCFAR 318 and repeated in Chinachem Charitable Foundation Ltd v. Chan Chun Chuen (2011) 14 HKCFAR 798, this Court’s practice, in common with that of the courts of last resort of comparable legal systems, is not to review concurrent findings of fact save in rare and exceptional circumstances. This practice springs from the nature of a court of last resort’s role, which is primarily of resolving points of law of the highest importance.  It is to be added that the practice also serves to spare litigants from the oppression of unduly protracted litigation.

3. When asked to review such findings, we may begin by hearing argument on the question of whether it would be purposeful to embark upon such a review. That is a procedure which we have employed in the past, and it was employed on the present occasion. Each of the present appeals was dependent for its success on the reversal of a concurrent finding of fact that 83.1% of the shares in New Asia International (Group) Ltd, a BVI company (“the Shares”) belong, as the wife said, to the husband rather than, as the husband and the woman with whom he is cohabiting said, to the cohabitee.  At the conclusion of the argument on whether it would be purposeful to embark upon a review of this concurrent finding of fact, we decided that it would not.

4. That left these appeals (FACV No. 11 of 2013 brought by the cohabitee and FACV No. 19 of 2013 brought by the husband) without any ground on which to proceed. Both were therefore dismissed with costs, it being ordered that the husband and the cohabitee be jointly and severally liable to the wife for her costs of each appeal. A stay ordered by the Appeal Committee when granting the husband leave to appeal to this Court was lifted.

5. These are the Court's reasons for not considering it purposeful to embark upon a review of the concurrent finding of fact that the Shares belong to the husband.

6. Both of these appeals arose out of the wife's application for ancillary relief. If the Shares belong to the husband they would be taken into account in determining the award to the wife of ancillary relief, increasing it. So the ownership of the Shares was tried as a preliminary issue in the wife's application for ancillary relief, in which application the cohabitee became an intervener for the purposes of the preliminary issue. At first instance, Saunders J found as a fact that the Shares belong to the husband, thus deciding the preliminary issue in favour of the wife and against the husband and the cohabitee. On appeal to the Court of Appeal by the husband and the cohabitee, the Court of Appeal (Cheung, Yuen and Chu JJA) affirmed the finding of fact that the Shares belong to the husband, thus making that finding of fact a concurrent one.

7. This concurrent finding of fact was attacked by counsel for the cohabitee and counsel for the husband.

8. It was suggested that there was no evidence on which to find that the Shares belong to the husband. As to that, suffice it to say that there was evidence on which to so find. Indeed, it could be said, although it is unnecessary to say, that there was ample evidence on which to so find.

9. Then the second line of attack ran along the following lines. The Shares represent 83.1% of the shares in the company concerned. Saunders J thought that the wife’s stance was that only that percentage of the shares in the company concerned belonged to the husband. In fact, her stance was that a higher percentage of the shares in the company concerned belonged to him.  As to that, all that has to be said is this. Whether a misapprehension of that sort vitiates a finding such as the one here in question depends on the circumstances. And in the present circumstances, it is plain that the misapprehension does not vitiate the finding.

10. Finally, it was said that references made by Saunders J to the proceedings before him being of an inquisitorial nature indicates that he had approached the question of share ownership as a matter of discretion. Those references do not indicate anything of the sort. Moreover, Saunders J said in terms that the question of whether the Shares belong to the husband was “a simple issue of fact to be determined on the balance of probabilities, with the wife, who seeks to assert that the shares are owned by the husband, carrying the burden of proof to establish that fact”. The appellants were unable to point to any finding in the judgment which was based on any other approach. Throughout his consideration of the evidence, Saunders J never approached the question of share ownership otherwise than as a question of fact.