TWM v. SMM

FAMV No. 21 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 21 OF 2010 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 209 OF 2009)

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DECISION

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Mr Justice Bokhary PJ :

1. Like the Court of Final Appeal itself, the Appeal Committee has inherent jurisdiction, which can be exercised by a single permanent judge, to grant a stay for the purpose of protecting its process by ensuring that such orders as it may eventually make are not rendered, or put at undue risk of being rendered, nugatory.  That flows from the cases of Secretary for Justice v. To Kan Chi (2000) 3 HKCFAR 264, Shanghai Tongji Science & Technology Industrial Co. Ltd v. Casil Clearing Ltd FAMP No.2 of 2003, 11 August 2003, PCCW-HKT Telephone Ltd v. Telecommunications Authority (2005) 8 HKCFAR 337, Joint & Several Liquidators of Kong Wah Holdings Ltd v. Grande Holdings Ltd (2006) 9 HKCFAR 795 and DLA Piper Hong Kong v. China Property Development (Holdings) Ltd [2010] 2 HKLRD 704.  None of those was a family case.  But the jurisdiction extends to family cases, and I am now asked to exercise it in a family case.

2. Shortly stated, the circumstances are these.  A child of almost 8 years is involved.  Sadly, the parent’s marriage has failed.  A decree nisi has been made.  Financial relief remains to be dealt with.  The family judge (Her Honour Judge Sharon Melloy) granted joint custody to both parents.  She granted sole care and control to the mother, with generous access to the father.  And she dismissed the mother application for permission permanently to remove the child from Hong Kong, directing non-removal until the child attains the age of 18 save on certain conditions set out in her order.  Both parents then appealed to the Court of Appeal.  That court (Justices of Appeal Cheung, Hartmann and Kwan) dismissed the father’s appeal on care and control, and allowed the mother’s appeal on permanent removal.  So the mother now has not only care and control but also permission for permanent removal.  She plans to leave Hong Kong with the child on the 15^th of next month.  The father’s application to the Appeal Committee for leave to appeal to the Court of Final Appeal on care and control and on permission for permanent removal has been set down for hearing on the 27^th of that month.  He asks that the Court of Appeal’s grant of such permission be stayed pending the Appeal Committee’s determination of his application for leave to appeal to the Court of Final Appeal against that grant.  The mother opposes a stay.

3. In dealing with a child, the courts of course treat the child’s welfare as the paramount consideration.  Where parents differ as to what is in the child’s best interests, the court will, as far as practicable, hear both of them on that issue before arriving at its conclusion.  That is in the nature of the judicial process.  A fair hearing assists the court to make the right decision.  It also helps the party who eventually sees himself or herself as “the losing party” to come to terms with the result.  This is particularly important in family cases in which the parties still have to co-operate as parents even after they cease to be husband and wife.

4. Typically—and the present instance is no exception—deciding whether or not to grant a stay pending further proceedings begins with an endeavour by the court to acquire as clear a picture as possible of the essential circumstances of the case.  Then the court will balance the rival factors in order to arrive at what it considers to be the most satisfactory, or at any rate the least unsatisfactory, result.  Finally, the court will announce the result, preferably with reasons but certainly without saying anything that might prejudice future proceedings.

5. The decision which I have now to make is not an easy one.  After all, the Court of Appeal’s judgment demands a healthy measure of respect.  On the other hand, it is to be remembered that the family judge did not consider permanent removal appropriate.  And there are a number of points of legal principle, possibly with wide implications, which the father seeks to raise.  So I do not feel able simply to brush aside the father’s leave application as doomed to failure.  At the same time, I am naturally reluctant to disrupt the plans for the child which the mother has made on the strength of the permission for permanent removal granted by the Court of Appeal.

6. I do not doubt that granting the stay would cause disruption.  Nor, on the other hand, do I doubt that refusing the stay might render nugatory a leave application which I cannot at this stage say is certain to fail.  The question of this child’s welfare has been brought before the judiciary.  All things considered, I think that the judiciary should see the matter through at least to the extent of safeguarding next month’s leave application by ordering that the permission for permanent removal be stayed pending the determination of that application.  I grant such stay.

[Discussion on costs]

7. Both sides now so agreeing, there will be no order as to the costs of this stay application.  I thank counsel on both sides for their assistance throughout.