|
FCMP 38/2007
[2020] HKFC 248
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 38 OF 2007
________________________
| |
IN THE MATTER OF an application under Section 6 of the Parent and Child Ordinance (Cap 429) and Section 10(2) of the Guardianship of Minors Ordinance (Cap 13) |
| |
and |
| |
IN THE MATTER OF FNJ and SCJ, minors |
________________________
BETWEEN
| |
[T] |
Applicant |
| |
and |
|
| |
[W] |
Respondent |
________________________
Coram: HH Judge C.K. Chan in Chambers (Not Open to Public)
Mode of Hearing: By Way of Written Submissions
Date of Respondent’s Written Submissions: 5 October 2020
Date of Applicant’s Written Submissions: 25 November 2020
Date of Decision: 3 December 2020
________________________
D E C I S I O N
(LEAVE TO APPEAL)
________________________
1. This is a hearing of the Respondent (“the father”)’s summons dated 5 October 2020, in which he applies for leave to appeal against my Judgment dated 22 September 2020.
2. Just a couple of preliminary points. I note that in the title of the father’s summons, which should be the same as the one in the originating action, he named himself as the “Applicant”. But that is an incorrect description of his title in the originating action. The father may be the applicant for leave to appeal, but he was and still is the Respondent in the originating action, and he should be so named.
3. I also note that the father has served the summons on the Applicant (i.e. the Applicant in the originating action) (“the mother”) by registered post at her address for service in Mong Kok on 5 October 2020. Upon enquiry from the court, the father affirmed that the mother actually had not collected the post. This has rendered the service being unsuccessful. Be that as it may, the mother is now aware of the father’s application and she was given up to 2 December 2020 to make her submissions. The mother duly filed her written submissions on 25 November 2020, after the perusal of which I now give my decision.
4. In the Judgment dated 22 September 2020, I made the following orders:
(1) The maintenance of the 2 minors payable by the father to be increased from $50,000 per month ($25,000 each) to $52,000 per month ($26,000 each);
(2) The father shall pay a further lump sum of $100,000;
(3) The mother’s application for other lump sum payments to be dismissed;
(4) The father’s application for a downward variation of the minors’ maintenance to be dismissed;
(5) The father’s application for an order of undertaking to be dismissed; and
(6) The father shall pay costs of $2,000 to the mother.
The Law
5. Leave to appeal is governed by s. 63A (2) of the District Court Ordinance, Cap 336 which reads:
“(2) 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.”
6. As to what constitutes a reasonable prospect of success, it has been held that the prospects of succeeding in the intended appeal must be “reasonable” and therefore more than “fanciful”, but without having to be “probable”: SMSE v KL[1]
The Father’s Grounds of Appeal
7. In the father’s draft grounds of appeal, he has listed out a total of 7 grounds, of which I will discuss as follows.
The Effect of COVID-19
8. It is the case of the father that the court has not taken into account the effect of COVID-19 on the reasonable needs of the minors.
9. I think the father is not entirely wrong to say that the current public health crisis has not been taken into account when the court considered the needs of the minors. This must be the case because when the parties’ evidence was heard in August/September 2019, the current public health crisis was not yet in existence. If the father is of the view that the current public health crisis is a material change of circumstances justifying a downward variation of the maintenance for the minors, he is at liberty to take out further applications, instead of lodging an appeal to the Court of Appeal.
10. I am not satisfied that the father has a reasonable prospect of success on this ground.
The Mother’s Prospect of Employment
11. It is the father’s case that the court has failed to take into account that the mother was well able to find employment so as to make contribution towards the maintenance of the 2 minors.
12. I think the father was referring to §§81-82 of the Judgment in which I said:
“81. I think it is fair to say that in the 2016 Judgment of Judge Bruno Chan (paragraph 34, page 14 of the Judgment), His Honour did hint that the mother should be able to return to gainful employment after the minors entering secondary education. However, the ironic fact remains that the minors are only 13 years of age requiring the care and attention of the mother, which to a large extent still prevents her from seeking open employment.
82. I understand that it has also been argued before HH Judge Bruno Chan that the mother could employ a domestic helper to take up the caring duties so that she could re-enter the labour market herself. Of course, that may be one way to look at the matter. But one must not lose sight of the fact that when the mother did have full time employment more than a decade ago, she was employed as a secretary. We all know that secretary is a diminishing occupation and companies tend to hire less staff in this area of employment. It is simply not easy for her to get an employment, as a secretary or otherwise, with a decent income after an absence of over a decade from the labour market, not to mention the current economic crisis that Hong Kong is facing as a result of various social events and the recent public health situation. Under these circumstances, requiring the mother to provide financial contribution to the maintenance of the minors is simply not a feasible option at this stage.”
13. I still maintain my view that as the mother has to look after the 2 minors both aged 13, and her previous working experience as a secretary more than a decade ago may not assist her in finding a gainful employment under the present financial circumstances, the prospect of the mother being able to provide meaningful financial contribution towards the maintenance of the minors is rather slim.
14. I am not satisfied that the father has a reasonable prospect in overturning the above finding on appeal.
The Economic Crisis of Hong Kong and the number of Directorships held by the Father
15. The father is saying that I have not taken into account the economic crisis of Hong Kong in 2019-2020 and has wrongly considered the number of his company directorship.
16. As I said earlier, the trial was conducted in August/September 2019, it was simply not possible for this court to consider the economic crisis faced by Hong Kong in the year of 2020. As to the economic crisis in the year of 2019, I do not think there was much evidence on this topic at trial. The father has not adduced any evidence on the various financial indicators of the Hong Kong economy in the year of 2019, for example, whether there was a drastic drop in the GDP, or a sudden rise in the unemployment rate, etc. As a matter of fact, the main plank of the father’s contention at the time was that the “[W] Incident” has damaged his reputation causing him to lose some of the company directorship he previously held in various Hong Kong listed companies.
17. As to the father’s company directorships, I was well aware that the father had held a number of company directorships in the past but at the time of trial, only 5 of those company directorships remain.
18. In his written submission, the father stated that the company “[G]” was not a listed company; he was not a director of it; and he had derived no income from it. First of all, I do not remember the father has drawn my attention to the fact that “[G]” was only a private company at trial. Moreover, whether it was listed or whether he has already resigned as a director of the company, does not alter the fact that he had failed to make disclosure of his shareholding in the company as part and parcel of his overall financial disclosure.
19. The father also submitted that his directorship in [S] Limited was transparent and public data which “was timely announced on Stock Exchange website, hence no grounds to accuse the “missing of reporting by the [father]””. It seems that the father still maintained that he has no positive duty to inform the court or the mother of his appointment as a director of a listed company as part of his duty for full and frank disclosure. This, again, is the father’s catch me if you can attitude that could not be accepted by this court.
20. As far as his bank statements were concerned, the father submitted that he had attended all the hearings (unlike the last application before Judge Bruno Chan) and the mother had a chance to cross examine and extract further information from him at trial. He submitted that the court should not draw the adverse inference as it did for his failure to provide the relevant bank statements. In my judgment, the fact that the father did attend trial did not absorb him from the duty to give full and frank disclosure of his finances.
21. The father submits that his appointment as a consultant of a solicitors’ firm had not yielded him any income. But the fact remains that he had chosen not to disclose his return to legal practice, which does certainly have an important impact on his income, or at least his earning capacity. The duty was on him to prove that he had derived no income from it if that was indeed the case. If he chose to remain silent and it was reasonable for the court to draw an adverse inference under such circumstances.
Delay in Handing Down Judgment
22. It is regrettable that the handing down of the judgment took longer than expected, partly due to the facts that a lot of disputed factual issues needed to be determined and also the convoluted ways in which the evidence was presented by the parties. Be that as it may, as similarly stated in paragraph 9 above, if there has been a material change of circumstances justifying a further variation of the maintenance order, either party is entitled to make further application to the court, instead of lodging an appeal of the judgment.
23. I am not satisfied that the father has any reasonable prospect of success on his intended appeal relying on this ground.
Proof on Relocation Cost of $100,000
24. In the mother’s summons for variation, she has asked for a lump sum of $817,020.80, in which the setup fee and moving costs of the minors (from Chai Wan to Happy Valley) were included. It was indisputable that the mother and the minors did relocate to Happy Valley upon the termination of the tenancy in Chai Wan. I was satisfied that setup and moving costs were indeed incurred on that occasion. The issue was how much. Despite the fact that the evidence as presented by the mother on the quantum was quite difficult to follow, I still decided to allow a lump sum of $100,000, taking into account that the rental deposit of the Happy Valley flat alone was already $50,000 and there had to be some other expenses incurred. I accept that it was a rough estimation but not an unfair one.
25. I am not satisfied that the father has a reasonable prospect in overturning this estimation of the minors’ setup and moving costs.
The Dismissal of the Father’s Application for Downward Variation
26. From §§95-112 of the Judgment, I have given some detailed discussion on the serious deficiency in the father’s financial disclosures. At §109, I have come to a conclusion that such failure was deliberate with an obvious intention to frustrate a reasonable investigation into the father’s financial circumstances. At §112, I have also come to a conclusion that the father must be able to afford the reasonable monthly maintenance of the minors at the rate of $52,000. Under such circumstances, the dismissal of the father’s application for a downward variation of the maintenance payable was inevitable.
27. I am not convinced that the father has any reasonable prospect in overturning this conclusion on appeal.
The Court’s Order on Costs
28. Costs to follow event. The mother succeeded in her application, though not to the full extent. The father failed in all his applications, with a finding that he had not given full and frank disclosure on his finances. There was no reason why the father should not pay costs to the mother. The quantum of $2,000 was reasonable.
29. I am not convinced that the father has any reasonable prospect in overturning my discretionary decision on costs.
Any Other Reasons in Granting Leave?
30. There are no other reasons in the interests of justice for leave to appeal to be granted.
Conclusions and Orders
31. Based on the above reasons, I am not satisfied that the father has any reasonable prospect of success in any of his proposed grounds of appeal, and there are no other reasons in the interests of justice to grant such leave. In the circumstances, the father’s application for leave to appeal is hereby dismissed.
Costs
32. Costs to follow event. The mother should have costs, to be summarily assessed at $200 payable by the father forthwith.
| |
(C.K. Chan) |
| |
District Judge |
Representation:
The Applicant acting in person
The Respondent acting in person
[1] (2009) 4 HKLRD at para 17
|