RK v. YS

FCMP 151/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 151 OF 2008

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 REASONS FOR DECISION
(Leave To Appeal)

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1. The Respondent Mother took out two summonses both of 28^th June 2010 seeking respectively leave to appeal against my decision made on 8^th June 2010 and for stay of execution of the orders therein made, pending appeal.

2. After hearing counsel Miss Anita Yip appearing for the Mother and Mr. David Glynn, solicitor for the Applicant Father and reading their respective written submission as well as parties’ affirmation/affidavits, I dismissed both applications at the hearing with costs reserved. I indicated that brief reasons would be handed down later, which I now do.

Brief Background Post-judgment

3. On 8^th June 2010, I handed down a written decision granting sole custody of the two children of the family to the Father with generous access, including visiting access and staying access, to the Mother. It is this decision of the Court that the Mother is now seeking leave to appeal and to stay.

4. By another application of the Father on 7^th July 2010, the Father asked the Court to suspend the Mother’s access to the children, relying on an unhappy incident which took place on 2^nd July 2010. The children’s paternal grandmother and the domestic helper were allegedly injured on this date when the Mother was asserting her right of access to take AK, who was then having a low fever, to hospital. By the same summons the Father also sought a non-molestation injunction against the Mother. This summons was also returnable at the same hearing of the Mother’s aforesaid two summonses.

5. A number of affidavits and affirmations were filed by the parties and witnesses. At the hearing, the parties are agreeable to, inter alia, giving of mutual non-molestation undertakings and that the question of injunction was to be adjourned sine die. The Mother’s access was not suspended by me and I have directed that reports from Dr. Levy, the psychologist, and social welfare officer on respectively AK’s psychological condition and the children’s access be called for.

Leave to Appeal

6. The grounds of appeal are set out in the draft notice of appeal annexed to the Mother’s summons for leave to appeal and counsel’s submission. After reading them, it is fair to summarize broadly the Mother’s grounds of appeal as follows:

i)   I have wrongly or improperly exercised my discretion in favour of the Father by either failing to give due consideration to matters which I ought to have considered, such as recommendations of the social welfare officer’s report, the wishes of AK, etc. On the other hand, I have given too much weight on matters such as the drinking problems of the Mother, the audio recording on 20^th September 2008 which was orchestrated by the Husband, the alienation of AK by the Mother, etc.

ii) I have come to the wrong factual findings that the Mother had drinking problem, or a drinking problem to the extent as found by me, and that Rosa enjoyed a good relationship with AK, as she was now being charged by the Police for assaulting AK. There was also no evidence for the Court coming to the conclusion that the Mother was erratic, abusive, having sleeping problem, mood change, etc associated with drinking.

iii)   The Mother will rely on post-trial evidence, such as Rosa is now being charged by the Police for assaulting AK, the refusal by the Father to allow access of the children by the Mother and his high-handed way in taking away the children after handing down of my decision to demonstrate that the Court has exercised its discretion wrongly.

The Legal Principles in Leave to Appeal Application

7. Section 63A of District Court Ordinance (“DCO”) provides as follows:

“1. Leave to appeal granted under section 63 may be granted –

(a) in respect of a particular issue arising out of the judgment, order or decision; and

(b)   subject to such conditions as the judge …… hearing the application for leave considers necessary in order to secure the just, expeditious and economical disposal of the appeal.

 2.  Leave to appeal shall not be granted unless the judge …… 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.”

8. Prior to the legislative change in April 2009, the test for leave to appeal application is not codified. The test in the English authority of Smith v Cosworth Casting Processes Limited [1997] 1 WLR 1538 has been adopted and is this:whether there is “no realistic prospect of success”. This test has a low threshold. By this test the Court will only refuse leave when it is satisfied that the applicant has no realistic prospect of success in the appeal otherwise leave should be granted. For completeness sake, the principles set out in Smith v Cosworth by Lord Woolf, MR, are set out as follows:

“i) The Court will only refuse leave if satisfied that applicant has no realistic prospect of succeeding on the appeal. The test is not meant to be any different from that which is sometimes used, which is that the applicant has no arguable case. Why however this court has decided to adopt the former phrase is because the use of the word “realistic” makes it clear that a fanciful prospect or an unrealistic argument is not sufficient. (My emphasis)

ii)  [not applicable in the present case]….”

9. The above principles were cited with approval in the Hong Kong Court of Appeal by Leong CJHC in Ma Bik Yung v Ko Chuen, unreported, HCMP4303 of 1999, 8^th September 1999. This test has been adopted before the legislative change in 2009.

10. Question arises as to whether the old test (i.e. leave will only be refused if satisfied the applicant has no realistic prospect of succeeding on the appeal) is different from what has now been stated in Section 63A of the DCO (i.e. leave will not be granted unless the appeal has a reasonable prospect of success). This has been discussed by H.H. Judge Marlene Ng in Commissioner of Inland Revenue v Nam Tai Trading Company Ltd, (unreported) DCTC 4250 of 2008, 22^nd April 2009. In paragraph 10 of Her Honour Judge’s decision, she has this to say:

“Has there been any change with the introduction of section 63A of the DCO?  In my view, section 63A(2) merely codifies the pre-existing threshold test of realistic or reasonable prospect of success adopted by the local courts when considering whether to grant leave to appeal, and I see no reason to read such provision differently from the helpful guidance by Smith considered in Ma Bik Yung.”  

11. There has been some discussion in her decision and the aforesaid paragraph summarizes her conclusion. It is the learned judge’s view that there has been no change in the litmus test for granting leave to appeal despite the change of language of such test. I consider the learned judge has correctly stated the proper test under section 63A of the DCO, and this will be applied in considering the Mother’s present application.

Discussion

12. I first deal with the first ground of appeal listed above.

13. In G v G [1985] 2 All ER 225, [1985] 1 WLR, [1985] FLR 894, the House of Lords was dealing with the applicable principles when an appellate court was reviewing a judge’s exercise of discretion in cases involving welfare of children. It was acknowledged in G v G that when dealing with welfare of children, the difficulty faced by the family judge is that there is no right or wrong answer for the problem. All practicable answers are to some extent or in some respect unsatisfactory and therefore to some extent wrong. So the task of the family judge is to find an answer that is reasonably satisfactory. Very often he has to choose the lesser of the two evils. As such even if the Court of Appeal would itself have preferred a different answer, it would very seldom say the judge below was wrong and unless it can say so it will leave his decision undisturbed. The following two often-quoted speeches, which have been cited with approval by Lord Fraser in G v G, have clearly stated the principles and are worth repeating here:

i)   By Cumning-Bruce LJ in Clarke-Hunt v Newcombe (1982) 4 FLR 482 at 488

“There was not really a right solution there were two alternative wrong solutions. The problem of the judge was to appreciate the factors pointing in each direction and to decide which of the two bad solutions was the least dangerous, having regard to the long-term interests of the children, and so he decided the matter. Whether I would have decided it the same way if I had been in the position of the trial judge I do not know. I might have taken the same course as the judge and I might not, but I was never in that situation. I am sitting in the Court of Appeal deciding a quite different question: has it been shown that the judge to whom Parliament has confided the exercise of discretion, plainly got the wrong answer? I emphasize the word “plainly”. In spite of the efforts of [counsel] the answer to that question clearly must be that the judge has not been shown plainly to have got it wrong.”

ii) Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345

“It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”

14. The criticism levied under this head is that when I do the balancing exercise, I do not have sufficient regards to the wishes of AK, the recommendation of the social worker, etc and on the other hand, I have paid too much emphasis on the alienation aspect and drinking problem of the Mother. It is fair to say that the criticism is not that the Court has included irrelevant matters or excluded relevant matters in the balancing exercise. It is only an attack that the Court has not given sufficient weight to the factors that are favourable to the Mother. It is also fair to say that this Court is not said to have applied wrong principles of law when doing the balancing exercise.

15. The dissatisfaction of the Mother by my said decision is understandable. It is really a difficult decision and the Court has already reminded itself not to place too much emphasis on any one factor in order to avoid an imbalanced decision. I do not rule out that other minds presented with the same facts may have come to a conclusion different from me. However, the decision was reached by exercise of a discretion after this Court, as a fact-finding tribunal, has seen and heard the witnesses and considered all relevant circumstances as guided by a welfare checklist. By reasons of the principles enunciated above I do not consider the Mother has a realistic prospect of succeeding on appeal on this ground.

16. I now turn to the second ground. 

17. Concerning the first limb of this ground, the Mother is basically saying that I have wrongly preferred the evidence of the Father, the paternal grandparents, Dr. Levy and Rosa against the weight of evidence put in by her. It is an appeal against my finding of primary facts. It basically boils down to my assessment of the credibility of witnesses.

18. There were a total of 8 witnesses giving evidence at trial. Their evidence was tested. They were heavily cross-examined by counsel of the parties. I have the opportunity of seeing them in the witness box responding to questions put to them, observing their demeanour and comparing their testimony with their own prior or other evidence. I think in order for the Mother to succeed on a challenge of facts on appeal, she has a very high hurdle to overcome.

19. Furthermore, it has not been shown that my conclusion of facts allegedly being wrong is unsupported by evidence or that it contradicts any incontrovertible evidence.  Nor has the Mother identified concisely and precisely which of finding of facts are plainly wrong.

20. The principles upon which the appellate court will upset the primary findings of facts based on credibility of witnesses are well settled. In Hong Kong such principles have been set out by Godfrey JA in Tang Kwok Ming v Daxprofit Scaffolding Ltd [1999] 1 HKC 663 and reiterated by Woo VP in Tin Kwong International Enterprise Company Limited & ors v San Tung & anor (unreported, CACV 164/2005, 17^th January 2006,). The said principles have been helpfully summarized by Woo VP in Tin Kwong (at paragraph 14) as follows:

“i) if the Court of Appeal is to reverse the trial judge’s decision on the facts, it “must not merely entertain doubt whether the decision below is right, but be convinced it is wrong”;

ii)    the Court of Appeal will certainly not disturb the judge’s finding of primary fact where they are based on the credibility of witnesses or the preference of the evidence of one witness for that of another because he enjoyed the advantages of receiving the evidence in a living state at first-hand;

iii) in order to disturb a finding of primary fact, the Court of Appeal has to be satisfied that the judge’s conclusion is plainly wrong in the sense that either (1) that there is no evidence to support it; or (2) that is contrary to documentary or other incontrovertible evidence that the judge overlooked. It is not enough to show there is little evidence to support the judge’s finding, or that it was “contrary to the weight of the evidence”. The weight of the evidence is a matter for the trial judge. It does not matter how many witnesses say one thing, and how few say the contrary. The judge is perfectly entitled to prefer the evidence of the few to that of the many. ” 

21. Concerning the second limb that the Mother’s behaviour associated with drinking is unsubstantiated with evidence, I have to say that such allegation is incorrect. There were the professional views of Dr. Chan on behavioural problems generally associated with drinking before this Court which the Court has accepted. There was also behaviour exhibited by the Mother as revealed in the evidence which is consistent with a person with drinking problem. There was evidence that she was drinking. The Court is therefore fully entitled to infer from the evidence a conclusion that the Wife has problems with drinking.

22. By reasons of the above, my assessment is that the Mother does not have any realistic prospect of success on the second ground.

23. As for the third ground Miss Yip submitted that the Ladd v Marshall exception applies and therefore the Mother’s application to adduce additional evidence in the Court of Appeal is bound to succeed. I do not pitch the Mother’s case as high as she did but agree that the Mother may have a fair chance of having post-judgment evidence admitted on appeal.  In G v G (supra), the appellant therein was also seeking to rely on additional evidence dealing with events since the trial. Lord Fraser has this to say,

“Additional evidence dealing with events that have occupied since hearing in the court below is readily admitted, especially in custody cases where the relevant circumstances may change drastically in a short period of time. But it must be a matter for the discretion of the court in each case to decide whether the additional evidence which it is asked to look at is likely to be useful or not and to reject it if it considers it unlikely to be so.”

24. The two main areas of evidence which the Mother sought to adduce are, namely, the criminal prosecution of Rosa and the uncooperative and high-handed attitude of the Father after he had got a decision in his favour. His behaviour demonstrated the Court’s conclusion that the Father being ready to promote access is plainly wrong.

25. With regards to the first part of evidence sought to be adduced, it will be inappropriate for the Court to speculate the outcome of Rosa’s trial which has not yet been fixed. However, Rosa is only a domestic helper. She was found by the Court to be very helpful but she of course is not almighty and indispensable. Her valuable service to the family is only one of the many considerations that the Court has taken note of. However, the fact that she may leave the family anytime has been taken into consideration when the Court was doing the balancing exercise: see paragraph 244 of the said decision. So even assuming (for the purpose of discussion but in no way suggesting and concluding) that Rosa has assaulted AK and therefore has to leave this family, that would not in any way vitiate my conclusion that the Father can work well with domestic helpers and therefore has no problem enlisting support of another helper, in addition to support from the paternal grandparents, to help him take care of the children.

26. With regards to the parties’ affirmations/affidavits on post-judgment access, I have gone through them and consider that the evidence does little more than describing the on-going conflicts between the parties. The incident on 2^nd July 2010 is just another episode of such conflicts. The Father as depicted in the recent affirmations is not inconsistent with what he appeared to the Court at trial. He is sometimes emotional and may, with a view to protecting his children, have over-reacted. I also noticed that the Father was not directly involved in the row which took place on 2^nd July 2010. The access was only suspended totally after the 2^nd July incident in which Del and the paternal grandmother had allegedly been assaulted by the Mother who is currently on Police bail. I do not think evidence to that effect will tip the balance in any way even if it were brought before me at trial.

27. In my judgment, even if the aforesaid additional evidence is admitted, it is unlikely the Court of Appeal will find the said evidence useful. Therefore it is unlikely the appellate court will disturb this Court’s decision. By reasons thereof I do not think the Mother has any realistic prospect of success in her appeal under this third ground.

28. I therefore dismissed the Mother’s said two summonses. As the Mother would be arguing the costs of the custody trial at a date to be fixed, I directed that the question of costs of these two summonses be also reserved for argument, and for the purpose of taxation, 30 minutes of the hearing be appropriated to the hearing of the two summonses.