CCMJ v. SSM formerly known as SKL

FCMP 67 / 2010

[2025] HKFC 182

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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BETWEEN

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D E C I S I O N
(Variation of Costs Order Nisi)

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Background

1.  This is the application by way of Summons dated 2/6/2025 (“June Summons”) taken out by the Applicant seeking :-

(a) variation of the costs order nisi dated 12/5/2025 (“12/5/2025 Costs Order”) to “no order as to costs”; and

(b) the Applicant’s Summons dated 6/3/2025 (“March Summons”) dismissed on 12/5/2025 be reinstated.

2.  In addition to (a) and (b) above, there were further reliefs sought within the June Summons, which I recited in verbatim below:-

(c) “the Applicant’s legal and human rights as delineated by the Mareva injunction law along with the Applicant’s entitlement shall be reinstated;

(d) The Respondent is required to furnish certain undertakings for damages.”

3.  For ease of reference, I would refer to the above reliefs sought within the June Summons as Reliefs (a), (b), (c) and (d) in this Decision.

4.  In support of the June Summons, the Applicant filed his supporting affidavit consists of 17 pages (49 paragraphs) and 3 exhibits, making a total of 55 pages. I would refer to this affidavit as “June Affidavit”.

Chronology leading to the June Summons

5.  To start with, the Applicant issued the March Summons seeking various reliefs which are as follows :-

- Deferral of the handing down of the reserved Decision of this Court in respect of the parties’ cross applications as per the Applicant’s Summonses dated 5/10/2021 (amended on 31/8/2023) and the Respondent’s Summons dated 18/5/2023 until finalisation and issuance of Judgment/Decision in HCMP No.2099/2023 (interpleader proceedings);

- Prohibiting the Respondent from utilising communication between the Applicant and the child N in these proceedings, including photographs of gifts given by the Applicant to the child N as evidence;

- The Respondent be ceased to utilise documents in these proceedings in the HCMP No.2099/2023 interpleader proceedings;

- The Respondent’s current residential address be updated to 2/F, No. xxxxxx, Fanling, New Territories;

- The Respondent shall consult the Applicant regarding the child N’s schooling and medical issues;

- Undelivered access to the child N be compensated to the Applicant within 4 weeks.

6.  In support of the March Summons, the Applicant filed his 36-page Affidavit. I would refer to this affidavit as “March Affidavit”. The March Summons was scheduled for a call-over hearing on 12/5/2025 at 11:30 a.m.

7.  At the call-over hearing on 12/5/2025, the Applicant failed to appear whilst the Respondent and her legal team attended the hearing who had also filed a note of submission dated 7/5/2025.

8.  In the absence of the Applicant and without receiving any reasons for his absence, the March Summons was dismissed with costs of the Summons be paid by the Applicant to the Respondent, to be taxed if not agreed. The Respondent’s own costs be taxed in accordance with Legal Aid Regulations. This 12/5/2025 Costs Order took the form of a costs order nisi which, as in all other cases of costs order nisi, would become absolute if no application to vary the same was made within 14 days thereof.

9.  On 2/6/2025, the Applicant filed the June Summons and his 17-page supporting affidavit (49 paragraphs) and 3 exhibits, making a total of 55 pages for Reliefs (a), (b), (c) and (d)[1].

Directions on the June Summons

(a) Directions dated 27 July 2025

10.  On 23 July 2025, I directed that the application for variation of costs order nisi under the June Summons be disposed of on paper. There were directions on parties to file and exchange written submissions on prescribed format.

11.  Apart from seeking variation of the 12/5/2025 Costs Order as per Relief (a), those Reliefs (b), (c) and (d) are apparently “new” ones given that they did not appear anywhere within the March Summons.

(b) Further Directions dated 14 August 2025

12.  On 7 August 2025, the Respondent’ lawyers wrote to seek if there are any further directions on the June Summons.

13.  On 14 August 2025, I granted further directions to cater for reliefs sought in the June Summons. In a gist, I specified the date that the Respondent should file her written submissions and that Reliefs (b), (c) and (d) of the June Summons be also disposed of on paper.

14.  On 21 August 2025, I received confirmation from the Respondent’s solicitors that no affirmation in opposition would be filed in relation to Reliefs (b), (c) and (d) of the June Summons.

The Court’s Views

Was there any delay by the Applicant to seek variation ?

15.  At paragraphs 2, 4, 5 and 6 of the June Affidavit, the Applicant deposed that the Court’s letter dated 20/5/2025 informing him that the March Summons was dismissed on 12/5/2025 was only received by him on 29/5/2025; by which time the 14-day period (counting from the 12/5/2025 Costs Order Nisi) had already expired. The Applicant produced his Exhibit 1 to support what he said

16.  Under Order 2 rules 4 and 5 of the Rules of the District Court (“RDC”) provides :-

“4. Where a party has failed to comply with a rule or court order, any sanction for failure to comply imposed by the rule or court order has effect unless the party in default applies to the Court for and obtains relief from the sanctions within 14 days of the failure.

5(1) On an application for relief from any sanction imposed for a failure to comply with any rule or court order, the Court shall consider all the circumstances including :-

(a) The interests of the administration of justice;

(b) Whether the application for relief has been made promptly;

(c) Whether the failure to comply was intentional;

(d) Whether there is a good explanation for the failure to comply;

(e) The extent to which the party in default has complied with other rules and court orders;

(f) Whether the failure to comply was caused by the party in default or his legal representative;

(g) In the case where the party in default is not legally represented, whether he was unaware of the rule or court order, or if he was aware of it, whether he was able to comply with it without legal assistance;

(h) Whether the trial date of the likely trial date can still be met if relief is granted;

(i) The effect which the failure to comply had on each party; and

(j) The effect which the granting of relief would have on each party.

(2) An application for relief must be supported by evidence.”

17.  I accepted the Applicant’s explanation that he only received the Court’s letter dated 20 May 2025 on 29 May 2025 sent to him by ordinary mail, by which time the 14-day period to seek variation of the costs order nisi had already expired. Such scenario was supported by evidence of the machine printed post mark on the envelope from the Judiciary shown in his Exhibit 1 in the June Affidavit.

18.  Given the June Summons was issued on 2/6/2025, that is, around 7 days after the expiry date of 26/5/2025, or to be fair and precise, it was only 3 days after the Applicant received the Court’s letter on 29/5/2025. This is not a long period of time. I am satisfied that the Applicant had acted promptly in seeking relief from the sanction of the 12/5/2025 Costs Order nisi from being made absolute on 26/5/2025. Further, the June Summons was issued within 14 days of the failure so required under Order 2 rule 4 of the RDC.

19.  I decided to grant relief from sanction to the Applicant to seek variation of the 12/5/2025 Costs Order Nisi which he claimed under Relief (a) of the June Summons. There is no issue of “delay” for so doing or the said order nisi had become “absolute” and could no longer be varied.

Reasons for the absence at the hearing on 12 May 2025

20.  Within the Applicant’s June Affidavit, he said as follows :-

“10. However, I want to explain that my absence for the hearing dated 12^th May 2025 is rooted in my ongoing struggle with major depression and anxiety, which have severely impacted my ability to manage my responsibilities. Whilst I take full responsibility for missing the hearing, I hope the court can understand that my mental health and physical conditions have played a significant role in this situation.

11. Since 2014, I have been contending with profound depression and anxiety, for which I rely on substantial pharmacological interventions to alleviate my symptoms that incessantly provoke sedation and cognitive impairment, rendering my mind unresponsive and incapable of reacting as one would normally expect.

12. Recently, I encountered an exacerbation of symptoms characterized by confusion, forgetfulness, anxiety, and disorientation, which considerably hindered my capacity to attend the scheduled hearing on 12^th May 2025. I mistakenly believed that it was to be held on 16^th May 2025. I genuinely intended to participate; however, I found myself overwhelmed by my condition.

13. Despite my earnest endeavours to manage my condition, the overwhelming stress associated with navigating numerous court hearings and legal documents has profoundly exacerbated my mental and physical health.

14. Given these circumstances if I could remember the hearing date correctly on 12^th May 2025, I am still not able to attend the said hearing on medical grounds since my depression has triggered a lot of anxiety and panic attacks coupled with the sedation of medications. I respectfully request the court’s understanding and concession regarding my situation. I am committed to resolving my legal matters but find it increasingly difficult due to my mental health and physical health challenges.”

21.  Considering each of the above reasons provided by the Father for his absence, it is unclear whether the Father was saying that his absence was :-

(i) due to his mental conditions of major depression and anxiety (para 10); or

(ii) due to his symptoms had exacerbated into confusion, unforgetfulness, anxiety and disorientation in that he remembered there was a hearing though wrongly to be “16^th May 2025” instead of “12^th May 2025” (para 12); or

(iii) even if he remembered correctly the date of 12^th May 2025, he would still be unable to attend due to his medical issues (para 14).

22.  Whatever reasons the Applicant is now claiming, he must provide sufficient evidence to support his reasons which was required by Order 2 rule 5(2) of the RDC[2] and not based upon mere allegation or bare statement of his own.

23.  The Applicant’s assertion of mental issues as reasons for his absence for the hearing on 12 May 2025 was based upon a Note dated 20/5/2025 issued by medical officer Dr. Li Yan Yin (“Dr. Li”) of Department of Psychiatry at the Kowloon Hospital (“the Note”). The Note was attached to the Applicant’s letter to this Court dated 21 May 2025. The Note reads :-

“To whom it may concern

Dear Sir/Madam,

Re : CCMJ [(Applicant’s ID No.)]

This is to certify that this patient is following up in our clinic for depression since 2015.

He is on regular medications and regular follow up.

He reported feeling very stressful due to his ongoing legal disputes and court hearings, with significant effect on his mental wellbeing. He felt very sorry and guilty about missing his court hearing on 12^th May 2025.

Please considering offering extra concession for this patient.”

24.  Without any disrespect to Dr. Li, from any perspective the Note was plainly reciting words received from the Applicant and not any conclusion or medical findings based upon any mental assessment of the Applicant. In my decision, the Note bears no evidential value to support any of the reasons, whatever they may be, which the Applicant provided in paragraphs 10 to 14 of the June Affidavit[3].

25.  The Applicant is unable to show by any other evidence, apart from his own statements, that it was due to his mental issues, such as depression and anxiety so asserted in his June Affidavit, which caused him unable or forgotten to attend the hearing of his March Summons scheduled for 12 May 2025.

26.  Apart from the Note, there was no other meaningful medical evidence or reports to support the Applicant’s “reasons” for not attending the 12 May 2025 hearing.

27.  My concluding views are that there are no reasons for the Applicant not attending the 12 May 2025 hearing which had ended up with dismissal of his March Summons with costs to follow the event.

28.  As the docket judge overseeing this case for the past 15 years, I should perhaps mention that the Father had once put forward his mental conditions as issues whilst he was contesting the garnishee order nisi obtained by the Respondent called to assess the Father’s mental conditions and capability to handle the proceedings.

29.  On that occasion I handed down my Decision on 11 August 2022 where recited the conclusion reached by the Official Solicitor which is now reproduced as follows :-

“Conclusion

In light of the available medical findings and subject to the Court’s decision, we are of the view that the Applicant should be entitled to the right of self-determination and it may not be necessary or appropriate to appoint a next friend for him in the proceedings.

In the circumstances, we consider that this case could continue to proceed. If it is considered that a legal representative is required, it is suggested that the Applicant may instruct a solicitor on private basis or apply for legal aid.”

30.  It is worth to note that the Official Solicitor’s Report cited in my 11 August 2022 Decision was dated 11/1/2022[4]. This was 7 years after the year of 2015 which Dr. Li said in the Note that the Applicant started receiving treatment from them. There is no evidence before me that the Applicant’s condition had deteriorated after the said Report in 2022 to present (a period of 3 years) had deteriorated to the stage where a further Official Solicitor report was now required.

31.  As a matter of fact, the Applicant’s last assertion of his mental issues in 2021/22 had delayed/deferred the trial of his own application to vary maintenance orders which had unfortunately hindered the Respondent’s enforcement of maintenance orders by way of garnishee proceedings pending the Official Solicitor’s Report on the Applicant’s mental condition.

32.  Given the “reasons” provided by the Applicant was not supported by evidence and not being accepted, I also decided that there are no grounds for him to seek variation of the costs order nisi to “no order as to costs”. It would be fair and reasonable to compensate the Respondent on costs for preparing and attending the hearing on 12 May 2025 which the Applicant had not attended.

33.  I decided that Relief (a) of the June Summons must be dismissed.

34.  With my decision to dismiss the March Summons for the Applicant’s absence on 12 May 2025, there is no room for the Applicant to seek reinstatement of the March Summons as per Relief (b) of the June Summons.

35.  I decided that Relief (b) of the June Summons must be dismissed.

36.  The Applicant at various paragraphs of his June Affidavit tried to justify the need and importance of his March Summons, and repeatedly said he should not be “penalised” to pay costs. This is misconceived.

37.  Unless there are specific directions as to the basis of costs to be “punitive”, that is, to be taxed on indemnity basis, costs order granted in the usual form, say party and party basis, would be “compensatory” in nature rather than any kind of penalty (or “punitive”) on the party liable to pay the costs.

38.  There are no grounds for the Applicant to say that he was being “penalised” for pursuing the March Summons which he himself had not attended whilst not requiring to “compensate” the costs of the Respondent’s legal team who had fully prepared for and attended at the hearing on 12 May 2025. The Respondent is legally aided.

39.  As to Relief (c) of the June Summons, the Applicant was referring to his legal and human rights being delineated by the process of Mareva injunction granted against him.

40.  In my decision, Relief (c) must be dismissed outright for various reasons.

41.  First and foremost, the Mareva injunction process had been disposed of including the Applicant’s leave to appeal which was dismissed. The Applicant could not re-litigate or re-open his failed attempt to discharge or appeal the Mareva injunction discreetly (my emphasis) under the disguise of his June Summons, let alone this issue of legal and human rights was something completely “new” and not covered anywhere in the March Summons.

42.  Secondly, any complaint of his legal and human rights being delineated within the Mareva injunction process was not related to the cause for dismissal of the March Summons with compensatory costs granted against him in favour of the Respondent.

43.  As regards Recital (d), the Applicant was seeking undertakings as to damages to be provided by the Respondent. Same and again, this is completely misconceived.

44.  In the Applicant’s June Affidavit, he said undertakings as to damages should be provided by the Respondent when the Court decided to grant the Mareva injunction over his assets. Whilst such arrangement are not uncommon, this was a matter to be considered and decided at the Mareva injunction process and not at this juncture and in the present application for variation of costs order nisi.

45.  I decided that Relief (d) of the June Summons must be dismissed.

Conclusion

46.  For all the above reasons, the June Summons must be dismissed on its entirety.

Costs

47.  With the conclusion reached upon the above reasons, I decided that it is fair and reasonable for the Applicant to bear the Respondent’s costs, including any costs reserved and also costs in respect of those directions granted on 23 July 2025[5] and 14 August 2025[6].

48.  And I will so order.

49.  The Respondent’s own costs be taxed in accordance with Legal Aid Regulations.