WHY v. LPKK AND OTHERS

FCMC 4816/2016

[2020] HKFC 174

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4816 OF 2016

----------------------------

----------------------------

-------------------------------------

DECISION
(LEAVE TO APPEAL)
(BY PAPER DISPOSAL)

-------------------------------------

1.  This is the Petitioner’s application by Summons dated 24^th June 2020 for leave to appeal against my Judgment dated 6^th May 2020 (“the Judgment”). I shall refer the Petitioner as “the Wife”, the 1^st Respondent as “the Husband”, 2^nd Respondent as “the Brother” and 3^rd Respondent as “the Mother”.

2.  At the beginning, the Wife failed to comply with the requirements under the Notice of the “New Arrangement for Application for Leave to Appeal in the Family Court” dated 13^th August 2018.

3.  She did not file the Skeleton Submission together with her Summons; the same were only lodged on 28^th July 2020 after the directions was given dated 14^th July 2020.

4.  All the Respondents subsequently lodged their Skeleton Submission on 10^th August 2020 opposing the grant of leave to appeal.

Legal Principles

5.  The relevant test governing applications for leave to appeal from the District Court is provided in section 63A(2) of the District Court Ordinance (Cap 336) (“DCO”):

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal 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.” [emphasis added]

6.  The Court of Appeal discussed the application of s 63A(2) of DCO in Sunny Tadjudin v Bank of America, National Association, HCMP No 691 of 2012, unreported, 29 June 2012 at [9]:

“9. Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (SMSE v KL [2009] 4 HKLRD 125 para 17). Furthermore, it is pertinent to bear in mind that even if there is a reasonable prospect of success on appeal, the court still retains a discretion whether to grant leave to appeal, although the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion (Ho Yuen Ki Winnie & Ors v Ho Hung Sun Stanley & Anr. HCA 391/2006, 25 May 2009, A Cheung J para 3; and HCMP 1009/2009, 24 August 2009, para 22).”

7.  In addition, for leave to appeal in cases, where the threshold test is not provided in the relevant statute, the general test which the court applies in deciding whether or not to grant leave to appeal is this: leave will normally be granted unless the grounds of appeal have no realistic prospects of success (Smith v. Cosworth Casting Processes Ltd (Practice Note) [1997] 1 W.L.R. 1538 ; [1997] 4 All E.R. 840, CA).

8.  Recently, the Court of Appeal in ZJ v XWN, CAMP 67/2018, [2018] HKCA 436 (date of judgment: 25 July 2018) stated, in [64], that application for leave to appeal should be a filtering process and should be conducted summarily and proportionately.

9.  For the “some other reason” ground for granting leave to appeal, it is impossible to give an exhaustive list of the circumstances that the Court of Appeal would find that there are some other reasons in the interest of justice that an appeal should be heard.

10.  The Court of Appeal may grant leave if the question is one of general principle, decided for the first time, or a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage.

11.  With the aforesaid legal principles in mind, I now turn to the Wife’s draft Grounds of Appeal.

Draft Grounds of Appeal

12.  Mr. Koo, counsel for the Wife, advances a total of 4 grounds with a number of sub-grounds under each ground. He is essentially arguing that I erred in each and every respect.

13.  Mr. Kong, counsel for the Respondents, stated that in order to render his skeleton submission easier to follow, he will deal with the matters in the sequence of the Wife’s skeleton submission.

14.  I also consider that it is easy to follow if I deal with the matter in the same way as Mr. Kong did.In doing so, though I may not be referring to each and every paragraph, it does not mean that I have ignored any of them.

Resulting Trust

(Draft Ground 2 : re Finding Mother the sole beneficial owner of the Property)

15.  It is submitted by Mr. Koo that I erred in my reasoning and coming to the conclusion that the Mother had proved and/or discharged the burden to prove that she was the sole beneficial owner of the Property by virtue of “resulting trust”.

16.  Mr. Koo drew on the facts that from the contemporaneous documents provided by the Husband there was nothing proving that any part of the down payment and/or mortgage repayments for acquiring the Property was paid with the money of the Father or the Mother, and that there was no evidence proving or showing that any of the money for making the down payment came from the Father or the Mother.

17.  Mr. Koo further stressed that in respect of the mortgage repayment, there was no evidence proving or showing that any money thereof come from the Father or the Mother.

18.  Instead, there was undeniable fact that there were regular payments made by the Husband and other children to the Mother, which could be eventually used to make mortgage repayment. 

19.  Contrary to what Mr. Koo submitted, Mr. Kong argued that there is ample evidence (both from the Respondents and the Wife) about the Husband’s lack of financial ability (at all material times) to finance the purchase of the Property and that there is ample evidence before the court that the money given by the Husband periodically to the Mother was only household expenses rather than funds for mortgage repayment.

20.  Mr. Kong also submitted that the complaint made by Mr. Koo is a re-run of the Wife’s closing submission at trial, and that on the issue of the down payment and mortgage repayments of the Property, there is evidence before the court including earnings of parents, history of property transactions and bank record.

Discussion

21.  As clearly pointed out by Mr. Kong, it can be seen in the Judgment that I was fully conscious of the issues in disputes between the parties [19] and the respective stance adopted by the parties [20-24].

22.  Eventually, regarding the issues and disputes of the parties, I had eventually made finding on (i) Husband’s lack of financial capacity [72-73, 76, 116-117]; (ii) money given to the Mother was not for mortgage repayment [74, 76-90, 100, 123, 131, 133, 150-159]; (iii) the Father and the Mother funded the purchase of the Property [114-123, 224-227], and I had also gone through a thorough analysis of the facts before I made the aforesaid finding of facts.

23.  Plainly, I am of the view that this ground of appeal advanced by the Wife is directed to the finding of facts made by me and it is a re-run of the Wife’s closing submission at trial.

24.  In an appeal against a primary finding of facts, the Court of Appeal has to be satisfied that the conclusion on the facts made by the trial judge was plainly wrong: Ting Kwok Keung v Tam Dick Yuen & Others (2002) 5 HKCFAR 336.

25.  As regards the aforesaid finding of facts made by me, Mr. Koo had not sought to elaborate on how my findings are plainly wrong: see Ting Kwok Keung v Tam Dick Yuen & Others, supra.

26.  Hence, I fail to see why and how the error in my reasoning and coming to the conclusion alleged by the Wife lies. I reject the argument on this ground.

Presumption of Advancement

(Draft Ground 1 : re Finding that the Property being no gift to the Husband)

(Draft Ground 4 : re Finding that the Father acted on advice of Chan)

27.  Mr. Koo submitted that my reasoning and coming to the conclusion that the Mother did not at any time have the willingness to give the Property, or any down payment or mortgage repayment as a gift to the Husband, and that the basis for rebuttal of the presumption of advancement are flawed.

28.  Mr. Koo further submitted that I also erred in my reasoning and finding that the Parents put the Property in the sole name of the Husband simply pursuant to the legal advice allegedly given by Chan.

29.  Mr. Koo argued that even if all the money for acquiring the Property was from the Mother and the Father only, by virtue of the legal principle of “presumption of advancement”, there should be no “resulting trust” unless the Respondents also proved that both the Father and the Mother did not intend to “gift” the Property or any part thereof to the Husband at the material time, i.e. when the Property was acquired.

30.  Mr. Koo contended that I erred in law not to have taken into account of, or adequately considered, the Father’s or both the parents’ intention at the time of acquiring the Property (as opposed to the Mother’s willingness at any time) in determining whether the presumption of advancement is to be rebutted.

31.  Mr. Koo also submitted that the fact that the Property was intended to be used as the Parents’ residence and was so used since the acquisition thereof, proved nothing that the Father did not intend the Husband to be sole beneficial owner of the Property.

32.  Mr. Koo stressed that the mutual arrangement and/or permission amongst the family members regarding their accommodation in their respective properties have no bearing on the question “whether or not the Father or the Mother did intend the Husband to be sole beneficial owner of the Property”.

33.  Mr. Koo submitted that it is inherently implausible and unbelievable for the Father to have acted on the alleged legal advice given by Chan to put the Property in the sole name of the Husband.

34.  As to the counter argument made by Mr. Kong, he submitted that the Wife did not challenge the correctness of the summary of evidence made by me and my reference to the case authorities cited by the Respondents as enunciated in Suen Shu-Tai v Tam Fung Tai [28].

35.  Mr. Kong submitted that the Wife’s criticism as formulated in her appeal Ground 1 and 4 are misconceived, unmeritorious and contradictory to the evidence as revealed in the trial.

Discussion

36.  I shall deal with drat Ground 1 and 4 together, because they both touch the issue of presumption of advancement.

37.  It is correctly pointed out by Mr. Kong that I did not solely rely on the fact that the Parents used the Property as their residence.

38.  In fact, I had clearly stated that since the purchase of the Property, Parents of the Husband used it as their residence and one of the matters which worth considering is the lodging decision and arrangement.

39.  Instead of focusing on any single fact, I had indeed thoroughly considered and examined all the evidence and the whole course of the parties’ conduct in relation to the Property both favourable and unfavourable to the parties before I ruled that there was no intention to gift any part of the Property to the Husband [113, 143-144, 149 & 161].

40.  Eventually, I came to the conclusion that at all material times, there was no intention of gift [219]. Such conclusion was based on my analysis of various matters raised by the Wife.

41.  Mr. Koo also complained about my finding that the reason for the Husband being named as the registered owner was for the purpose of obtaining mortgage finance per the legal advice the Parents received [106-110], [132, 134, 136-138], [148-149].

42.  Mr. Koo considered that it was inherently implausible and/or illogical and unbelievable for Chan, whom the Respondents failed to call to testify at trial, to have given such legal advice.

43.  Whether it is believable that the Parents put the Property in the sole name of the Husband simply pursuant to the legal advice allegedly given by Chan is eventually a finding of facts, and such finding should be supported by reasons [148-149] which I had already explained in the judgment.

44.  Despite the aforesaid complaints made by Mr. Koo regarding as to why the Husband’s name was used for the Property, the ultimate question to be determined remains the issue of presumption of advancement and the issue of resulting trust. 

45.  In my view, again, draft Ground 1 and 4 of appeal advanced by the Wife have fallen into the same fallacy as Ground 1.

46.  I fail to see how I could have erred in these aspects after making all the necessary finding of facts with reasons.

Purpose of Conveyance

(Draft Ground 3 : re Finding the conveyance to the Brother the sole beneficial owner of the Property)

47.  Mr. Koo submitted that I erred in my reasoning and coming to the conclusion as stated in paragraph 238 of the judgment that the Husband’s conveyance of the Property at no consideration to his Brother in May 2016 was unrelated to the divorce proceedings, i.e. made with no intention of defeating the Wife’s claim for financial provision.

48.  Mr. Koo argued that it is inherently implausible and unbelievable for the Husband to have elected to incur stamp duty of significant amount (about HK$78,000) in conveying the Property to the Brother merely for the sole and only purpose of obtaining the mortgage loan of HK$600,000.

49.  Mr. Kong submitted that this is another re-run of the Wife’s submission at trial, and that should the Wife fail in her draft Ground 1 and 2, Draft Ground 3 will cease to be of importance.

Discussion

50.  I agree with Mr. Kong’s observation that the Wife’s 3^rd proposed ground of appeal is a repetition of what has already been submitted in the trial, which I have considered.

51.  Mr. Koo had not made any further elaboration on this point in his submission save and except the point he had raised at the trial.

52.  In the circumstances, I think there is thus no need for me to analyse further on this ground, but would simply refer to what I have said in para 234-238 of the Judgment.

53.  I see no reasonable prospect of success on this ground.

Order

54.  Due to the matters set out above, the Wife has failed to show that she has an arguable case on any of the grounds. The intended appeal has no reasonable prospect of success.

55.  For this reason, the application for leave to appeal must be dismissed and I so order, and I also do not find that the appeal should be allowed on “some other reasons” ground.

Costs

56.  I see no reason why the Wife should not be responsible for the costs of this application.

57.  The Wife do pay the Respondents the costs of this application to be taxed if not agreed, with certificate for counsel, and the Wife’s own costs to be taxed in accordance with the Legal Aid Regulations.

58.  The aforesaid costs order is an order nisi to be made absolute at the expiration of 14 days.