WSSA v. SYH

CAMP 319/2023, [2024] HKCA 1150

On appeal from [2023] HKFC 94

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 319 OF 2023

(ON AN INTENDED APPEAL FROM FCMC NO 4633 OF 2020)

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DECISION ON COSTS

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Hon Ng J (giving the Decision of the Court):

Introduction

1.  This is our decision on costs of the Summons dated 5 October 2023 (“Summons”) taken out by the Wife[1] before the Court of Appeal for leave to appeal against the decision and Order of HH Judge G Own (“Judge”) dated 24 May 2023 ([2023] HKFC 94) (“Decision”).

2.  By the Decision, the Judge dismissed the Wife’s Summons dated 26 April 2023 (“Release Summons”) for:

(a)  general leave to use documents and information disclosed or filed in FCMC 4633/2020 and FCMC 12797/2017 (“Family Proceedings”) and to provide the same to MRL for her defence in the criminal proceedings for common assault (“Criminal Proceedings”); and

(b)  the Wife to be released from any implied undertaking in relation to the said documents and information for the aforesaid purpose.

3.  The Judge dismissed the Wife’s application for leave to appeal against the Decision on 21 September 2023 ([2023] HKFC 193) (“Leave Decision”). The Wife then took out the Summons and made a renewed application for leave to appeal to the Court of Appeal on 5 October 2023.

4.  The Summons was originally fixed to be heard on 21 May 2024 before us. On 8 May 2024, upon the consent of the parties, we directed that the Summons be withdrawn and that the hearing on 21 May 2024 be vacated, with costs to be determined on paper. The parties have since filed two rounds of written submissions on costs pursuant to our directions.

Background

5.  The following background is largely taken from the Decision.

6.  The parties were married in September 2007. They have two children, a boy born in 2009 and a girl born in 2012.[2]

7.  In September 2017, the Wife filed a divorce Petition for “unreasonable behaviour” in FCMC 12797/2017 (“FCMC 12797”). Those proceedings subsequently ended up in a fresh divorce Petition filed in June 2020 based on “two years separation” in FCMC 4633/2020 (“FCMC 4633”). A decree nisi was granted in June 2021.[3]

8.  By an Order dated 29 July 2021, interim care and control of the two children was granted to the Wife, and interim defined and supervised access was granted to the Husband. By an Order dated 7 September 2021, such access arrangement was varied on the ground of logistics.[4]

9.  MRL was the Wife’s domestic helper working at the former matrimonial home (“FMH”) of the parties. She was charged with 3 counts of common assault against the Husband, which allegedly took place on 29 November 2020, 17 March 2021 and 21 July 2021 at the FMH. Details of the 3 charges were described in the Wife’s supporting affidavit[5] (“W 17”) as follows.

(a)  1^st charge: The prosecution’s case is that at around 12:45pm on 29 November 2020, MRL used one of her hands to hit and push the Husband’s left forearm, as well as pushing him in the chest once. No injury was sustained by the Husband, nor did he seek any medical treatment after the incident.

(b)  2^nd charge: The prosecution’s case is that at around 1:20pm on 17 March 2021, the Husband was standing by the folding door of the storeroom in the FMH, and when he extended his right arm to block the door from closing, MRL stepped on the hinge of the door with her left leg for about 20 seconds. Further, it is said that there was redness of about 2-3cm on the back of the Husband’s right hand.

(c)  3^rd charge: The prosecution’s case is that at around 8:15am on 21 July 2021, MRL suddenly closed the door of the storeroom when the Husband was filming her with his mobile phone, hitting the back of the Husband’s left hand. Later when MRL tried to stop the Husband from filming further, it is alleged that she pushed him, hit his left forearm twice and kicked his left forearm once. The Husband was then sent to the Queen Mary Hospital for check-up and discharged on the same day with findings of tenderness, bruising and abrasion on left wrist.

10.  As a preliminary observation, it should be noted that the 3 incidents in question all took place after the presentation of the 2 divorce petitions.

11.  Yet, as one shall see, the 2 petitions were among the numerous documents sought by the Wife for use in the Criminal Proceedings. It is difficult to see how the 2 petitions could have any bearing on the issues in the Criminal Proceedings which concerned 3 very short incidents involving MRL and the Husband. There is also no indication in W 17 as to the relevance of the contents of the 2 petitions to the 3 charges – the Wife only hinted in W 17 that a number of the affidavits filed in the Family Proceedings might enable the magistrate to be apprised of the “broader background” to the alleged assaults (as to which see the next paragraph). This reflects how much or little thought was given by the Wife on the necessity and ambit of the Release Summons.

12.  On 26 April 2023, the Wife took out the Release Summons pursuant to Rule 121 of the Matrimonial Causes Rules (Cap. 179A) and the inherent jurisdiction of the Court. In W 17, the Wife explained, as justification of the Release Summons, that:

(a)  All 3 counts of common assault took place at the FMH when the Husband had not yet been ousted from the FMH pursuant to a Court Order dated 29 July 2021 (at [4]).

(b)  MRL was one of the Wife’s witnesses in the Family Proceedings and filed an affirmation in FCMC 4633 (at [5]).

(c)  The Criminal Proceedings against MRL were very much intertwined with the Family Proceedings. She was going to be one of the defence witnesses (at [6]). She was given to understand that MRL could only properly conduct her defence against the 3 charges if she could have access to all relevant materials in the Family Proceedings (at [7]).

(d)  The incidents at the FMH, which were the subject of the 3 charges, were detailed in a number of affidavits filed by the Husband and Wife in the Family Proceedings (at [9]). It is important for the Court in the Criminal Proceedings to be apprised of the “broader background” as to the alleged assault. An overview of the background of the parties and the history of the ongoing matrimonial disputes between the Husband and the Wife would shed light on the incidents leading to the 3 charges laid in the Criminal Proceedings (at [10]-[11]).

(e)  As evident from his witness statement to the police, the Husband alleged that MRL might be gathering or possessing evidence against him in the Family Proceedings (at [12]).

(f)  The Wife was going to be one of the defence witnesses in the Criminal Proceedings. It might become necessary for her to refer to the information, documents and/or correspondence disclosed, filed and/or relating to the Family Proceedings in her evidence (at [13]).

(g)  The use of any material in the Family Proceedings would be “highly relevant and essential” for MRL’s defence and would be limited to assisting her in properly defending the Criminal Proceedings. No prejudice would be caused to the Husband (at [14]).

The Judge’s dismissal of the Release Summons

13.  The Release Summons was taken out by the Wife on an urgent basis given the then imminence of the Criminal trial. The Judge heard the Release Summons on 9 May 2023 and handed down the Decision on 24 May 2023.

14.  The Judge noted that the disclosure sought by the Wife was not for herself but to facilitate a non-party to the Family Proceedings in defending the Criminal Proceedings.[6] The Judge also asked why, and to what extent, should MRL be given the information and materials, which were not only substantial in quantity, but also covering confidential materials relating to the parties and children, even containing personal materials covered by medical confidentiality, for her use in her defence in the Criminal Proceedings.

15.  The substantial extent of the documents and information sought by the Wife was first alluded to in the Decision at paragraphs 11 to 13 as follows:

“11. On 28/4/2023, HI[7] wrote in reply[8] and attached with a 3-page schedule of documents categorized under different headings, namely, (A) Pleadings; (B) Affidavits; (C) Summonses; (D) Orders; (E) Reports; all of which in total 49 items (collectively called “the Documents”).

12. On the same day, that is 28/4/2023, Withers[9] wrote to HI and copied to this Court regarding HI’s requests made to this Court for issuing the intended “Rule 121” application where they said :-

- Delay of HI in copying to them the letter dated 26/4/2023 sent to the Family Court until after this Court granted the directions on 27/4/2023. They only received HI’s letter and attachment(s) at 1740 hours on 27/4/2023; and

- The need of confidentiality to safeguard the privacy of parties in proceedings in the Family Court; protection of intimate disputes also involving private evidence especially when young children are involved.

13. On 2/5/2023, Withers wrote to this Court stating their preliminary views on W’s intended “Rule 121” application where they said :-

- As per HI’s schedule of documents, W was seeking disclosure of the majority of documents in the divorce proceedings which they estimated taking up approximately 10 bundles. W was only making a blanket request and not answering this Court’s memo of directions dated 27/4/2023…”

16.  Subsequent to the 28 April 2023 letter with its 3-page schedule, by letter dated 5 May 2023, the Wife’s solicitors (“HI”), sent to the Judge’s clerk an updated version of the schedule of documents sought by the Wife for the Judge’s consideration. It was in the form of a Table in Schedule 1 and is reproduced, for ease of reference, below.

Schedule 1

List of documents in FCMC 4633/2020 and FCMC 12797/2017 sought to be disclosed in

The Criminal Proceedings

Description	Dated
A. Pleadings
1. Petition (Unreasonable Behaviour)	29/09/2017
2. Fresh Amended Petition (Two Years Separation)	08/06/2020
B. Affidavits
3. Affidavit of WSSA (with exhibits)	21/06/2019
4. 4th Affidavit of WSSA (with exhibits)	24/09/2020
5. 5th Affidavit of WSSA (with exhibits)	08/10/2020
6. 6th Affidavit of WSSA (with exhibits)	12/01/2021
7. 8th Affidavit of WSSA (with exhibits)	28/06/2021
8. 9th Affidavit of WSSA (with exhibits)	29/07/2021
9. 14th Affidavit of WSSA (with exhibits)	09/03/2022
10. 15th Affidavit of WSSA (with exhibits)	12/04/2022
11. 4th Affidavit of SYH (with exhibits)	19/11/2020
12. 5th Affidavit of SYH (with exhibits)	19/11/2020
13. 7th Affidavit of SYH (with exhibits)	25/03/2021
14. 10th Affidavit of SYH (with exhibits)	14/07/2021
15. 17th Affidavit of SYH (with exhibits)	30/12/2021
16. 20th Affidavit of SYH (with exhibits)	21/06/2022
I7. Affidavit of MRL	07/01/2021,
18. Affidavit of BMS	12/01/2021
C. Summons
19. W’s Inter-partes Summons (ouster)	10/09/2020
20. H ’s Inter-partes Summons (children-interim shared care and control)	17/09/2020
21. Consent Summons (children - Single Joint Expert)	01/06/2021
22. W’s Inter-partes Summons (restore ouster)	28/06/2021
23. H’s Inter-partes Summons (children-variation of access)	02/09/2021
24. Ex parte on Notice Summons (children - school enrolment)	08/11/2021
25. H’s Inter-partes Summons (costs on children issues)	23/11/2021
26. H’s Inter-partes Summons (children-boarding school)	30/12/2021
27. H’s Inter-partes Summons (recusal)	30/1212021
28. H’s Inter-partes Summons (children-leave to appeal)	25/01/2022
29. H’s Ex parte on Notice Summons (children-resume access)	08/03/2022
D. Order
30. Order made by His Honour Judge G. Own	10/09/2020
31 Order made by His Honour Judge G. Own	18/12/2020
32. Order made by Deputy District Judge T. Kwan	26/01/2021
33. Order made by His Honour Judge G. Own	03/06/2021
34. Order made by His Honour Judge G. Own	30/06/2021
35. Order made by His Honour Judge G. Own	29/07/2021
36 Order made by His Honour Judge G. Own	07/09/2021
37. Order made by His Honour Judge G. Own	10/11/2021
38. Order made by His Honour Judge K. K. Pang	10/03/2022
E. Reports
39. Social Investigation Report	12/01/2021
40. Report by LL	25/06/2021
41. Social Investigation Report	26/07/2021
42. Psychiatric Report of SYH by Dr CWK	28/07/2021
43. Official Solicitor’s Report	30/08/2021
44. Psychiatric Assessment Report of WSSA by Prof FLM	31/08/2021
45. Supplemental Psychiatric Assessment Expert Report of WSSA by Prof FLM	22/09/2021
46. Further Psychiatric Expert Report of WSSA by Dr CWK	04/10/2021
47. Psychiatric Assessment Expert Report of SYH by Prof FLM	04/10/2021
48. Preliminary Psychological Treatment Report of the son by Prof PWHL	15/10/2021
49. Joint Report by Dr CWK and Prof F LM	10/11/2021
F. Access Reports (*These documents ate not filed with the Court nor used in the proceedings. They are simply included for the avoidance of argument and without prejudice to the Petitioner’s position that they are not subject to any restriction on their disclosure or use.)
50. Access Report	14/12/2022
51. Access Report	16/12/2022
52. Access Report	20/12/2022
53. Access Report	21/12/2022
54. Access Report	22/12/2022
55. Access Report	23/12/2023
56. Access Report	24/12/2022
57. Access Report	27/12/2022
58. Access Report (revised)	28/12/2022
59. Access Report	30/12/2022
60. Access Report	31/12/2022
61. Access Report	03/01/2023
62. Access Report	17/01/2023
63. Access Report	18/01/2023
64. Access Report (amended)	20/01/2023
65. Access Report (amended)	24/01/2023
66. Access Report	31/01/2023
67. Access Report	04/02/2023
68. Access Report	10/02/2023
69. Access Report	28/03/2023

17.  It can be seen from the above that many of the documents set out in Schedule 1 do not appear to have any direct relevance to the 3 charges. Without trying to be exhaustive, a number of the most obvious examples are (i) the 2 petitions for divorce, (ii) the social investigation report dated 12 January 2021 which was related to issues on the custody, control and care issues on the 2 children of the family, (iii) the Report by LL, a registered psychologist, dated 25 June 2021, the purpose of which was for a psychological evaluation on the 2 children’s relationship with the Wife and the Husband, (iv) the Preliminary Psychological Treatment Report of the son dated 15 October 2021 by Professor PWHL, and (v) the numerous Summonses and Orders in Sections C and D. Not only that, some of the documents also touch on matters pertaining to the 2 children of the family and materials covered by medical confidentiality, as mentioned by the Judge at [41] of the Decision.

18.  The Judge rejected each of the grounds advanced by the Wife in support of the Release Summons from [53] to [58] of the Decision. Suffice to say that the Judge was correct in ruling the real need to safeguard the confidentiality of those involved in the Family Proceedings, particularly the 2 children, outweighed MRL’s alleged need to defend herself with the documents and information sought.

19.  In this court’s view, the entire application was poorly thought out.

20.  First, the width of the Release Summons was wholly unjustified.

21.  Second, the suggestion in W 17 that MRL could only properly conduct her defence against the 3 charges if she had access to the documents listed in Schedule 1 is also wholly unjustified. In that regard, we note that all the justifications put forward in W17 in support of the application were bare and general assertions – there was no analysis at all as to why each of the documents sought was essential to MRL’s defence.

22.  After all, one is looking at 3 relatively simple charges of common assault. This type of cases is normally determined on the basis of the credibility of the prosecution and defence witnesses, which any magistrate is well-equipped to assess. There is, objectively, no need to go through volumes of documents in order to be apprised of the so-called “broader background” for the magistrate to be able to come to a proper decision. This is so, despite the fact that MRL was raising an issue of self-defence and the magistrate thought the defence should be considered in light of the background of the dynamics between the Husband and MRL, as can be seen from the transcript of the Verdict delivered on 7 February 2024. It can also be seen from the same page of the transcript of the Verdict that the magistrate was aware, from the videos produced by the prosecution and the defence, of the “quite poor” relationship between the Husband and MRL.

The Wife’s application for leave to appeal and the development in the Criminal Proceedings

23.  On 7 June 2023, the Wife applied to the Judge for leave to appeal against the Decision. The application was dismissed by the Judge on 21 September 2023.

24.  The Wife then took out the Summons on 5 October 2023 to renew her leave application before this court.

25.  Meanwhile, the trial of the Criminal Proceedings took place on 7 and 8 December 2023 as scheduled. It was then adjourned to 25 January 2024, with the date of verdict being 7 February 2024. On 7 February 2024, the magistrate acquitted MRL of all 3 counts of common assault. The prosecution has not appealed against the Verdict.

26.  Following the acquittal of MRL in the Criminal Proceedings, the parties engaged in correspondence on the disposal of the Summons.

(a)  The Wife proposed to withdraw the Summons with no order as to costs, including all costs relating to the Release Summons below. The Wife considered MRL’s acquittal rendered the Summons purely academic, but emphasised that she was confident she would have prevailed in the intended appeal.

(b)  The Husband’s position was that the costs of the Summons should be borne by the Wife by reason of its withdrawal.

27.  By the time of the filing of the written submissions on costs, the parties’ respective positions on costs are as follows.

(a)  The Wife seeks costs of the Summons and all costs below relating to the Release Summons.[10]

(b)  The Husband seeks costs of the Summons on a party-and-party basis and summary assessment of such costs.[11]

Deliberation

28.  The Court has a wide discretion as to what, if any, terms should be imposed when giving leave to withdraw: China Baoli Technologies Holdings Ltd v Orient Equal International Group Ltd and Ors [2021] HKCA 1609 at [21] per Barma JA.

29.  Generally speaking, upon an application for leave to discontinue proceedings, the discontinuing party will be required to pay the costs of the other party, unless exceptional circumstances can be shown to justify a different order. The fact that the discontinuance was caused by the issues becoming academic does not of itself justify departure from this starting point as a matter of discretion: China Baoli Technologies at [17]. The starting point is the same where a party seeks to withdraw an application for leave to appeal: Cheng Siu Fai v Swenson Global Opportunities Funds SPC [2021] HKCA 1005 at [27] and [30] per Kwan VP.

30.  Where an Applicant’s application is doomed to failure by reason not of anything which he has done or not done, but because of an act of the Respondent which is within its control and out of the hands of the Applicant and is, further, a step which could have been taken either prior to the application being made or at an earlier stage in the application so as either to obviate the possibility of the application being made, or to minimise the costs associated with it, it may well be appropriate to recognise this by an appropriate costs order: Re Peaktop Technologies (USA) Hong Kong Ltd [2007] 4 HKLRD 207 at [8], per Barma J (as he then was).

31.  One may also depart from the starting point where the withdrawing/discontinuing party shows that he will succeed on the substantive issue. How far the court will be prepared to look into the substantive issues will depend on the circumstances of each case. The court may take a broad brush approach on the basis of the available materials: China Baoli Technologies at [18(3)].

32.  In Deepak Pagarani v Michel Morren [2020] HKCFI 587, Coleman J observed that:

(a)  Courts do not ordinarily make decisions on academic issues where there is no longer a dispute to resolve. The extent to which the court will look into previously unresolved substantive issues depends on proportionality and good sense. Often a broad brush approach will be justified, so as to reach a decision within a comparatively short time and without necessitating a fully reasoned judgment on the underlying issues which have become academic (at [12]).

(b)  When dealing with costs, the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional costs. In circumstances where coming to a conclusion with a full investigation of the underlying dispute would be out of proportion to the costs at stake, the court might consider it appropriate to make no order as to costs (at [13]).

33.  It is also well-established that where an intended appeal is against the exercise of discretion of a judge, the appeal court’s role is initially one of review. It does not exercise an independent discretion of its own. The appeal court will have to be satisfied that the judge was plainly wrong or had erred in principle in the exercise of his discretion before it will set aside his decision and exercise the discretion afresh: Cheng Siu Fai at [31].

34.  In her 1^st Skeleton, the Wife submits at paras 11(1) and (2) that:

(a)  The Release Summons (and subsequent appeal from the Decision) was not required had the Husband not made utterly spurious complaints against MRL.

(b)  The Wife’s application was made academic for the exact same reason ie the Husband having been disbelieved in the Criminal Proceedings as a complainant pursing an ulterior motive of harassing those who “sided” with the Wife in the Family Proceedings, leading to MRL’s acquittal.

35.  In this court’s view, the submission is a complete non sequitur.

36.  It is true that the Summons was rendered academic by reason of MRL having been acquitted of all 3 charges. It does not follow that the Wife had to issue the Release Summons in the first place.

37.  While the transcript of the Verdict is in the Supplemental Bundle A, there is no clear evidence in support of the Wife’s submission that (i) the Husband had made utterly spurious complaints against MRL, or (ii) the Husband was pursuing an ulterior motive of harassing MRL who “sided” with the Wife in the Family Proceedings. The reason why MRL was acquitted of all 3 charges can only be found in the Verdict and that was because the prosecution had failed to prove its case beyond reasonable doubt that MRL had committed the 3 assaults with which she was charged. Whatever the magistrate chose to say as justification of her Verdict, the fact remains that she was able to reach that verdict without any of the documents or information sought by the Wife in the Release Summons.

38.  For the sake of argument, even if the Husband was found by the magistrate to have made utterly spurious complaints against MRL or he had been pursuing an ulterior motive of harassing MRL, that does not mean the documents and information sought in the Release Summons were “highly relevant and essential” for MRL’s defence in the first place. The fact that MRL was acquitted without having the use of the documents etc requested under the Release Summons in her defence speaks for itself.

39.  Next, the Wife submits in her 1^st skeleton at para 12 that it is obvious the Wife would have succeeded in the substantive appeal against the Decision, or at least in respect of the Summons which only required her to show a reasonable prospect of success in the appeal. In her 2^nd skeleton, she submits she has a very compelling case on the merits for succeeding on both the Summons and the substantive appeal. Written skeletons were filed by both parties on the merits of the Release Summons, the Summons and the Wife’s appeal.

40.  For the purpose of determining the costs of the Summons which had been withdrawn by the Wife and the costs of the Release Summons which the Wife had lost with costs, but now seeks costs against the Husband, it is not feasible for us to embark on a detailed analysis on their merits, as that would mean allowing the parties to argue, and for us to adjudicate, on wholly academic issues. We do not consider that exercise a practicable or proportionate use of judicial resources in the circumstances of this case. This is especially so in light of the numerous documents sought in Schedule 1 and the fact that not all those documents are before us.

41.  Adopting a broad-brush approach and having considered the parties’ submissions and the materials before us, we are not satisfied that the merits of the Release Summons, the Summons or the substantive appeal are so obvious or compelling in favour of the Wife as would justify a departure from the starting point on costs of withdrawal of an application. In fact, the opposite is true – some of the reasons have already been alluded to above. In particular:

(a)  The Wife does not dispute that the relief sought in the Release Summons involved the exercise of a discretion by the Judge. The high threshold for the Court of Appeal to intervene in the exercise of such discretion must be met and in our view has not been met.

(b)  The wide scope of disclosure sought by the Wife. If one looks at the long list of documents set out in Schedule 1, it is not clear to us why many of the documents sought had any relevance to the 3 charges against MRL.

(c)  Given that the Wife now seeks costs of not just the Summons, but also all the costs below relating to the Release Summons, it is not sufficient for the Wife to show that leave to appeal, on the basis that she had a reasonable prospect of success, would have been granted by this Court, in which case the ordinary costs order would be costs in the cause of the appeal. The Wife has to, but fails to establish that she would have succeeded in the Release Summons and hence the substantive appeal.

42.  To conclude, having considered the submissions of the parties, we are not satisfied that the Wife has shown exceptional circumstances which would justify a departure from the starting point that she should bear the costs of the Summons which she has withdrawn or that she should get the costs of the Release Summons below.

Disposition

43.  For the above reasons, there shall be an order that the Husband’s costs (including all costs reserved) of the Summons be taxed if not agreed and paid by the Wife forthwith, certificate for two counsel.