家事法庭His Honour Judge I Wong6/10/2021[2021] HKFC 197
FCMC2960/2018
A A
FCMC 2960/2018
[2021] HKFC 197 B
B
IN THE DISTRICT COURT OF THE C
C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D MATRIMONIAL CAUSES D
NO. 2960 OF 2018
E E
----------------------------
F F
BETWEEN
G G
LYI also known as YIL Petitioner
H H
and
I I
JJ also known as JJ Respondent
J J
---------------------------
K K
L Coram: His Honour Judge I Wong in Chambers (Not Open to Public) L
Date of the Respondent’s Application and Written Submissions: 30 August 2021
M M
Date of the Petitioner’s Written Submissions: 17 September 2021
N N
Date of Ruling: 7 October 2021
O O
__________________
P P
Q RULING Q
( Leave to Appeal )
R (Paper Disposal ) R
S __________________ S
T T
U U
V V
-2-
A A
1. The judgment handed down by me on 16 August 2021 (“the
B Judgment”) was for the resolution of the parties’ ancillary reliefs in their B
divorce proceedings. The orders I made are that, after having catered for
C C
the financial needs of their 2 children, the matrimonial assets are to be
D D
distributed to the petitioner wife and the respondent husband in 55/45
E
share. This entails the liquidation of the former matrimonial home within E
6 months of the decree absolute for the repayment of liabilities and for
F F
the division. In addition, the respondent husband is to pay maintenance
G for the benefit of their children. G
H H
2. Dissatisfied with the Judgment, the respondent applied for
I I
leave to appeal.
J J
3. In this Ruling, I shall, for the ease of reference, continue to
K K
refer to the petition as “the wife” and the respondent as “the husband”.
L I shall also adopt the same nomenclature and abbreviations used in the L
Judgment.
M M
N N
4. As I have already set out the parties’ case and their facts in
O the Judgment, I do not propose to repeat them here. This Ruling has to O
be read alongside the Judgment.
P P
Q Q
Applicable Legal Principles
R 5. The relevant test governing applications for leave to appeal R
from the District Court is provided in 63A(2) of the District Court
S S
Ordinance (Cap 336):
T T
U U
V V
-3-
A A
“Leave to appeal shall not be granted unless the judge, the
master or the Court of Appeal hearing the application for leave
B is satisfied that – B
(a) The appeal has a reasonable prospect of success; or
C C
(b) There is some other reason in the interests of justice
why the appeal should be heard.” [emphasis added]
D D
E 6. The Court of Appeal discussed the application of s 63A(2) E
in Sunny Tadjudin v Bank of America, National Association, HCMP No
F F
691 of 2012 (Unreported, 29 June 2012) at [8] – [9]:
G “8. Under section 63A(2) of the District Court Ordinance, G
Cap 336, leave to appeal to the Court of Appeal shall not be
H granted unless the Court of Appeal is satisfied that the appeal H
has a reasonable prospect of success, or that there is some
other reason in the interests of justice why the appeal should be
I heard. Counsel relies on both limbs in section 63A(2) in I
seeking leave to appeal.
J 9. Reasonable prospect of success involves the notion J
that the prospect of succeeding must be “reasonable” and
K therefore more than “fanciful”, without having to be K
“probable” (SMSE v KL [2009] 4 HKLRD 125 para 17).
Furthermore, it is pertinent to bear in mind that even if
L there is a reasonable prospect of success on appeal, the L
court still retains a discretion whether to grant leave to
appeal, although the fact that there is, ex hypothesi, a
M M
reasonable prospect of success would heavily influence the
court’s exercise of discretion (Ho Yuen Ki Winnie & Ors v
N Ho Hung Sun Stanley & Anr. HCA 391/2006, 25 May 2009, A N
Cheung J para 3; and HCMP 1009/2009, 24 August 2009, para
22). [emphasis added]”
O O
P The Husband’s Grounds of Appeal P
Q
7. At the outset, it has to be pointed out that in his Intended
Q
Grounds of Appeal the husband made some references to what happened
R R
during the parties’ mediation. Mediation proceedings are without
S prejudice to the parties’ rights and are confidential. For this reason, at S
trial nothing about the mediation was allowed to be adduced or made
T T
U U
V V
-4-
A A
reference to before this court. In the circumstances, I fail to see how
B anything said or done during the mediation could be a ground of appeal. B
C C
8. The husband has altogether 24 paragraphs in his Intended
D D
Grounds of Appeal. These paragraphs are apparently not organised in
E any logical sequence and some have one stroke of sentence only. I must E
say while is it quite clear that 24 paragraphs do not mean 24 intended
F F
grounds of appeal, it is unclear as to how many intended grounds there
G are. Some of the paragraphs are clearly irrelevant and cannot be grounds G
of appeal; for instance, the husband says at [6] that the court should write
H H
to the Housing Department to investigate into and check whether the wife
I I
owns another property with her former husband, at [8] that the wife did
J
not arrange access to the children for him; and at [16] that the wife J
refused to perform the settlement agreement arrived at mediation.
K K
Similar irrelevant grounds, by way of examples, can also be found in [15]
L (the husband does not understand why a trial was needed), [18] (about an L
undertaking given by the wife during mediation) and [21] (about some
M M
undertakings given by the parties during mediation).
N N
O
9. There are also paragraphs from which the nature of O
complaints could not be understood in the context of this application for
P P
leave to appeal. For instance, the husband says at [3] that he was not
Q notified of the handing down of the Judgment on 16 August 2021. With Q
respect, I cannot fathom how this could be a ground of appeal. It is the
R R
practice of the court that notice would be given by phone and in the
S interest of social distancing during the Covid-19 pandemic the judgment S
would be sent to the parties by post. The husband further says in the same
T T
paragraph that he was not provided with documents by the other side.
U U
V V
-5-
A A
This made him not being able to give a response. He, however, does not
B specify what documents he is referring to and when these documents B
should have been provided to him. At [23], the husband asks whether it
C C
should be the wife who is to pay maintenance to him. This issue was
D D
never raised by the husband at trial. For the purpose of the present
E
application, he also fails to articulate his reasoning. E
F F
10. For the above reasons, I do not think it is necessary to deal
G with each and every paragraph in this Ruling. Doing the best I can, I try G
to decipher the grounds and deal with them below.
H H
I I
Challenges to Findings of Facts
J 11. To begin with, a majority of the grounds are challenges to J
the findings of fact made by me. Essentially, the husband submits that I
K K
erred in some primary findings of fact. For the ease of discussion, doing
L the best I can, I group the husband’s challenges into the following L
categories as set out in the table below.
M M
Findings of Fact Relevant paragraphs in
N the Husband’s Intended N
Grounds of Appeal
O Loans from the wife’s father 4, 25 & 26 O
Loans from the husband’s 5&7
P mother for down payment and P
renovation of the former
matrimonial home
Q Q
The wife’s financial needs 9 & 13
R The wife’s financial resources, 10, 11, 12, 17 and 22 R
including her pension, whether
the wife made full disclosure of
S S
her bank account and whether
the wife has another property
T with her former husband T
The husband’s liabilities 20
U U
V V
-6-
A A
The husband’s financial needs 24
B B
C
12. As pointed out by Ms Kwong, the husband’s above grounds C
are essentially a repeat of those he already made at trial and a re-run of
D D
failed arguments which have been rejected on the facts. On the proper
E scope of an appeal against findings of fact, the Court of Appeal said the E
following in China Gold Finance Limited v CIL Holdings Limited & Ors,
F F
CACV 11/2015 (unreported, 27 November 2015),
G 11. It is well settled that in respect of findings of fact, this G
court can only intervene when we are satisfied that the findings
H by the primary judge is plainly wrong: Ting Kwok Keung v H
Tam Dick Yuen (2002) 5 HKCFAR 336 is often cited and
applied in this court.
I I
12. Regrettably, there are still cases coming before us in
which counsel (including experienced and senior counsel)
J apparently failed to have regard to the proper role of the Court J
of Appeal in an appeal of this nature. Thus, from time to time,
we can find judgments from this court reiterating the
K K
fundamental principles in this respect: Chinachem Charitable
Foundation Ltd v Chan Chun Chuen CACV 101 of 2010,
L 14 February 2011 para 26; Welltus Ltd v Fornton Knitting Co L
Ltd [2013] 5 HKC 106; Bank of China (Hong Kong) Ltd v
Tsang Sheung Bun [2013] 5 HKLRD 62; Pang Ketian Sally v
M M
Tam Yuk Hung Annie CACV 147 of 2013, 25 April 2014; To
Pui Kui v Ng Kwok Piu CACV 281 of 2012, 21 August 2014;
N Ageas Insurance Co Ltd v Lam Hau Wah Inneo CACV 65 of N
2014, 9 January 2015 are some recent examples.
O 13. Mr Lam also referred us to the recent judgment of the O
United Kingdom Supreme Court on the same topic: Carlyle v
Royal Bank of Scotland [2015] UKSC 13 in which references
P were made to McGraddie v McGraddie [2014] UKSC 12; P
Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600
Q and the judgment of the Privy Council in Beacon Insurance Co Q
Ltd v Maharaj Bookstore Ltd [2014] UKPC 21.
R 14. These authorities explained the limits of an appellate R
court in reversing the findings of fact of the primary judge. We
used the expression “primary judge” because it emphasizes the
S primary role of the first instance judge in the assessment of S
evidence and making of relevant findings of fact. In our
judicial system, the appellate process is not designed to give a
T T
litigant (or his counsel) a platform for regurgitating his closing
submissions on the evidence and factual aspects of the case
U U
V V
-7-
A A
again with the hope that the appellate judges may come to a
different view to that of the primary judge. It is thus, as we
B said above, a misuse of the appellate process to place before B
this court submissions which, in substance, are (or should be)
C submissions advanced by way of closing submissions at the C
trial after the judge has heard all the evidence.
D 15. In an appeal, the court of appeal should focus on the D
question whether the primary judge has fallen in palpable
errors which could give rise to grounds for intervention by the
E appellate court. As explained in the cases, it is not germane E
that judges in this court may reach a different conclusion from
F
that of the judge. There are many areas, particularly those in
F
relation to findings of fact, where judges can reasonably reach
different conclusions from each other. That would not be a
G ground for intervention. G
16. Thus, in an appeal, it is not helpful if counsel and
H litigant (acted in person) only repeat submissions already H
advanced and considered by the primary judge at the trial. The
starting point should be the judgment of the primary judge and
I I
the identification of palpable errors (which must be errors of
such nature which warrants intervention from this court) in the
J judgment. The mere assertion that the finding of the judge is J
against the weight of the evidence or that the judge should have
reached another conclusion because of points advanced in the
K closing submissions below are not errors coming within that K
category.
L L
M
13. On appeals against the exercise of discretion, The Hong M
Kong Civil Procedure (2021) has the following discussion at §59/0/54,
N N
Appeals against exercise of discretion—There are many
authorities for the proposition that an appeal will not be
O entertained from an order which it was within the O
discretion of the judge to make, unless it be shown that he
P exercised his discretion under a mistake of law ( Evans v. P
Bartlam [1937] A.C. 473 ) or in disregard of principle
( Young v. Thomas [1892] 2 Ch. 134 ) or under a
Q misapprehension as to the facts (ibid.); or that he took Q
into account irrelevant matters ( Egerton v. Jones [1939] 3
R All E.R. 889 at 892, CA) or failed to exercise his discretion R
(Crowther v. Elgood (1887) 34 Ch D 691 at 697) or the
conclusion which the judge reached in the exercise of his
S discretion was “outside the generous ambit within which a S
reasonable disagreement is possible” ( G. v. G. [1985] 1
T W.L.R. 647 ; [1985] 2 All E.R. 225 , HL). See also Banque T
Nationale de Paris v. Chan U Tong [1968] H.K.L.R. 151 ,
and Fung Tin Keung v. Hong Kong Wah Yuen Investment Co.
U U
V V
-8-
A A
& Another [1967] H.K.L.R. 650 , and Re SY Engineering Co.
Ltd (unrep., CACV 1896/2001; [2002] H.K.E.C. 241 , CA)
B (appeal against a winding up order)… (emphasis added) B
C C
14. Thus, it is simply of no use and no assistance for the
D husband to just repeat his arguments. In coming to the findings of fact, I D
E
have in the Judgment set out the relevant evidence and my analysis on
E
why some evidence are accepted and some are rejected. It is unnecessary
F F
to repeat my analyses and conclusions here. In order to challenge the
G primary findings of fact, the husband must be able to point out how the G
conclusion of the facts was plainly wrong. I have no doubt that the
H H
husband has failed to do so. It also has to be remembered that the
I husband failed to file his section 7 narrative affirmation and elected not I
to give any evidence at trial. Thus, the truthfulness of his evidence and
J J
the veracity of his case could not be tested: see [31] of the Judgment. Of
K particular relevance are his assertions as regards the alleged loans from K
his mother, his liabilities owed to the banks and his financial needs which,
L L
without his evidence, simply cannot be substantiated.
M M
N Paras [1] & [2] N
15. The husband says he remains to be unemployed and he still
O O
has to pay (1) the mortgage repayments of the former matrimonial home
P and (2) his debts to the banks. He does not have the ability to pay P
maintenance to his children.
Q Q
R R
16. I was well aware that the husband was unemployed at the
S time of trial in April / May 2021. I dealt with the husband’s earning S
capacity in light of his qualifications and work history and came to a
T T
conclusion that he would have an earning capacity of at least $60,000 per
U U
V V
-9-
A A
month. Of particular relevance is that, in his closing submissions, the
B husband mentioned he was interviewing jobs and there were a lot of B
potential offers: see [71] to [75] of the Judgment. The Judgment was
C C
given about 3 months after the closing submissions. On the evidence
D D
before me I was entitled to come to the conclusion (which I did) that the
E
husband would have the ability to pay maintenance to his children. E
F F
17. As regards the mortgage repayments and the loans
G repayment, it has to be pointed out that the mortgage loans and the sum G
owed under the Charging Order have already been taken into account in
H H
arriving at the net value of the former matrimonial home upon the sale of
I I
it: see [69] & [117] of the Judgment. These liabilities would be repaid
J
out of the proceeds of sale. It is therefore important that the order for J
sale of 16 August 2021 is to be carried out within the timeframe set by
K K
this court.
L L
18. Again, in order to challenge the maintenance payment orders
M M
the husband must be able to point out how I erred in the consideration or
N N
analysis of the evidence before me at trial that led to the conclusion. The
O
husband’s assertion that he remains to be unemployed is not a ground. O
P P
Para [14] - Reimbursement of $25,607
Q 19. At para [14], the husband complains about the Q
reimbursement of $25,607 that I allowed in favour of the wife: see [113]
R R
of the Judgment. This money represents half of the student loan and the
S S
outstanding management fee the wife paid on behalf the husband after
T
their separation. He says it is unfair to him because at all times during T
the relationship the mortgage repayments and the utilities were paid by
U U
V V
- 10 -
A A
him. As said, this $25,607 represents half of the money. The student
B loan and the management fees were post-separation expenses and B
therefore should have been born by the parties in equal shares. The
C C
husband simply fails to point out how I erred in the exercise of the
D D
discretion in allowing the reimbursement.
E E
Para [19] - The Husband’s HSBC Account
F F
20. The husband also complains, at [19] of his Intended
G Grounds, about what I said of the disclosure of his HSBC account. I G
must confess I do not find this a relevant ground. As I said in [61] of the
H H
Judgment, I took the view that even for any reason the husband indeed
I I
failed to make a disclosure, it is clear that this account was for repayment
J
of the monthly mortgage payments of the former matrimonial home and J
there was no substantial sum of money in it. I made myself clear in [61]
K K
& [105] of the Judgment that this was immaterial even where there was a
L non-disclosure and that no adverse inference as regards his financial L
situation was drawn against him.
M M
N N
Conclusion & Order
O
21. For the reasons aforesaid, I have no doubt that the husband’s O
application is unmeritorious. There is simply no reasonable prospect of
P P
success nor is there some other reason in the interests of justice so that
Q the appeal should be heard. The husband’s application should be Q
dismissed and I so order.
R R
S Costs S
22. I see no reason why the husband should not be ordered to
T T
pay the costs of his application. The wife’s solicitors have already
U U
V V
- 11 -
A A
lodged their Statement of Costs for summary assessment. I consider this
B is the appropriate approach. The Statement of Costs states a total sum of B
$52,259. Adopting a board brush approach, I would allow a sum of
C C
$30,150 (with $20,000 as counsel’s fee). I make an order nisi that the
D husband do pay the wife’s costs of this application, with counsel D
E
certificate, and that such costs are summarily assessed at $30,150. E
F F
G G
H
(I. Wong) H
District Judge
I I
Ms Claris Kwong, instructed by Cheung & Co, Solicitors, for the
J
petitioner J
JJ also known as JJ, the respondent, in person
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
FCMC 2960/2018
[2021] HKFC 197 B
B
IN THE DISTRICT COURT OF THE C
C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D MATRIMONIAL CAUSES D
NO. 2960 OF 2018
E E
----------------------------
F F
BETWEEN
G G
LYI also known as YIL Petitioner
H H
and
I I
JJ also known as JJ Respondent
J J
---------------------------
K K
L Coram: His Honour Judge I Wong in Chambers (Not Open to Public) L
Date of the Respondent’s Application and Written Submissions: 30 August 2021
M M
Date of the Petitioner’s Written Submissions: 17 September 2021
N N
Date of Ruling: 7 October 2021
O O
__________________
P P
Q RULING Q
( Leave to Appeal )
R (Paper Disposal ) R
S __________________ S
T T
U U
V V
-2-
A A
1. The judgment handed down by me on 16 August 2021 (“the
B Judgment”) was for the resolution of the parties’ ancillary reliefs in their B
divorce proceedings. The orders I made are that, after having catered for
C C
the financial needs of their 2 children, the matrimonial assets are to be
D D
distributed to the petitioner wife and the respondent husband in 55/45
E
share. This entails the liquidation of the former matrimonial home within E
6 months of the decree absolute for the repayment of liabilities and for
F F
the division. In addition, the respondent husband is to pay maintenance
G for the benefit of their children. G
H H
2. Dissatisfied with the Judgment, the respondent applied for
I I
leave to appeal.
J J
3. In this Ruling, I shall, for the ease of reference, continue to
K K
refer to the petition as “the wife” and the respondent as “the husband”.
L I shall also adopt the same nomenclature and abbreviations used in the L
Judgment.
M M
N N
4. As I have already set out the parties’ case and their facts in
O the Judgment, I do not propose to repeat them here. This Ruling has to O
be read alongside the Judgment.
P P
Q Q
Applicable Legal Principles
R 5. The relevant test governing applications for leave to appeal R
from the District Court is provided in 63A(2) of the District Court
S S
Ordinance (Cap 336):
T T
U U
V V
-3-
A A
“Leave to appeal shall not be granted unless the judge, the
master or the Court of Appeal hearing the application for leave
B is satisfied that – B
(a) The appeal has a reasonable prospect of success; or
C C
(b) There is some other reason in the interests of justice
why the appeal should be heard.” [emphasis added]
D D
E 6. The Court of Appeal discussed the application of s 63A(2) E
in Sunny Tadjudin v Bank of America, National Association, HCMP No
F F
691 of 2012 (Unreported, 29 June 2012) at [8] – [9]:
G “8. Under section 63A(2) of the District Court Ordinance, G
Cap 336, leave to appeal to the Court of Appeal shall not be
H granted unless the Court of Appeal is satisfied that the appeal H
has a reasonable prospect of success, or that there is some
other reason in the interests of justice why the appeal should be
I heard. Counsel relies on both limbs in section 63A(2) in I
seeking leave to appeal.
J 9. Reasonable prospect of success involves the notion J
that the prospect of succeeding must be “reasonable” and
K therefore more than “fanciful”, without having to be K
“probable” (SMSE v KL [2009] 4 HKLRD 125 para 17).
Furthermore, it is pertinent to bear in mind that even if
L there is a reasonable prospect of success on appeal, the L
court still retains a discretion whether to grant leave to
appeal, although the fact that there is, ex hypothesi, a
M M
reasonable prospect of success would heavily influence the
court’s exercise of discretion (Ho Yuen Ki Winnie & Ors v
N Ho Hung Sun Stanley & Anr. HCA 391/2006, 25 May 2009, A N
Cheung J para 3; and HCMP 1009/2009, 24 August 2009, para
22). [emphasis added]”
O O
P The Husband’s Grounds of Appeal P
Q
7. At the outset, it has to be pointed out that in his Intended
Q
Grounds of Appeal the husband made some references to what happened
R R
during the parties’ mediation. Mediation proceedings are without
S prejudice to the parties’ rights and are confidential. For this reason, at S
trial nothing about the mediation was allowed to be adduced or made
T T
U U
V V
-4-
A A
reference to before this court. In the circumstances, I fail to see how
B anything said or done during the mediation could be a ground of appeal. B
C C
8. The husband has altogether 24 paragraphs in his Intended
D D
Grounds of Appeal. These paragraphs are apparently not organised in
E any logical sequence and some have one stroke of sentence only. I must E
say while is it quite clear that 24 paragraphs do not mean 24 intended
F F
grounds of appeal, it is unclear as to how many intended grounds there
G are. Some of the paragraphs are clearly irrelevant and cannot be grounds G
of appeal; for instance, the husband says at [6] that the court should write
H H
to the Housing Department to investigate into and check whether the wife
I I
owns another property with her former husband, at [8] that the wife did
J
not arrange access to the children for him; and at [16] that the wife J
refused to perform the settlement agreement arrived at mediation.
K K
Similar irrelevant grounds, by way of examples, can also be found in [15]
L (the husband does not understand why a trial was needed), [18] (about an L
undertaking given by the wife during mediation) and [21] (about some
M M
undertakings given by the parties during mediation).
N N
O
9. There are also paragraphs from which the nature of O
complaints could not be understood in the context of this application for
P P
leave to appeal. For instance, the husband says at [3] that he was not
Q notified of the handing down of the Judgment on 16 August 2021. With Q
respect, I cannot fathom how this could be a ground of appeal. It is the
R R
practice of the court that notice would be given by phone and in the
S interest of social distancing during the Covid-19 pandemic the judgment S
would be sent to the parties by post. The husband further says in the same
T T
paragraph that he was not provided with documents by the other side.
U U
V V
-5-
A A
This made him not being able to give a response. He, however, does not
B specify what documents he is referring to and when these documents B
should have been provided to him. At [23], the husband asks whether it
C C
should be the wife who is to pay maintenance to him. This issue was
D D
never raised by the husband at trial. For the purpose of the present
E
application, he also fails to articulate his reasoning. E
F F
10. For the above reasons, I do not think it is necessary to deal
G with each and every paragraph in this Ruling. Doing the best I can, I try G
to decipher the grounds and deal with them below.
H H
I I
Challenges to Findings of Facts
J 11. To begin with, a majority of the grounds are challenges to J
the findings of fact made by me. Essentially, the husband submits that I
K K
erred in some primary findings of fact. For the ease of discussion, doing
L the best I can, I group the husband’s challenges into the following L
categories as set out in the table below.
M M
Findings of Fact Relevant paragraphs in
N the Husband’s Intended N
Grounds of Appeal
O Loans from the wife’s father 4, 25 & 26 O
Loans from the husband’s 5&7
P mother for down payment and P
renovation of the former
matrimonial home
Q Q
The wife’s financial needs 9 & 13
R The wife’s financial resources, 10, 11, 12, 17 and 22 R
including her pension, whether
the wife made full disclosure of
S S
her bank account and whether
the wife has another property
T with her former husband T
The husband’s liabilities 20
U U
V V
-6-
A A
The husband’s financial needs 24
B B
C
12. As pointed out by Ms Kwong, the husband’s above grounds C
are essentially a repeat of those he already made at trial and a re-run of
D D
failed arguments which have been rejected on the facts. On the proper
E scope of an appeal against findings of fact, the Court of Appeal said the E
following in China Gold Finance Limited v CIL Holdings Limited & Ors,
F F
CACV 11/2015 (unreported, 27 November 2015),
G 11. It is well settled that in respect of findings of fact, this G
court can only intervene when we are satisfied that the findings
H by the primary judge is plainly wrong: Ting Kwok Keung v H
Tam Dick Yuen (2002) 5 HKCFAR 336 is often cited and
applied in this court.
I I
12. Regrettably, there are still cases coming before us in
which counsel (including experienced and senior counsel)
J apparently failed to have regard to the proper role of the Court J
of Appeal in an appeal of this nature. Thus, from time to time,
we can find judgments from this court reiterating the
K K
fundamental principles in this respect: Chinachem Charitable
Foundation Ltd v Chan Chun Chuen CACV 101 of 2010,
L 14 February 2011 para 26; Welltus Ltd v Fornton Knitting Co L
Ltd [2013] 5 HKC 106; Bank of China (Hong Kong) Ltd v
Tsang Sheung Bun [2013] 5 HKLRD 62; Pang Ketian Sally v
M M
Tam Yuk Hung Annie CACV 147 of 2013, 25 April 2014; To
Pui Kui v Ng Kwok Piu CACV 281 of 2012, 21 August 2014;
N Ageas Insurance Co Ltd v Lam Hau Wah Inneo CACV 65 of N
2014, 9 January 2015 are some recent examples.
O 13. Mr Lam also referred us to the recent judgment of the O
United Kingdom Supreme Court on the same topic: Carlyle v
Royal Bank of Scotland [2015] UKSC 13 in which references
P were made to McGraddie v McGraddie [2014] UKSC 12; P
Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600
Q and the judgment of the Privy Council in Beacon Insurance Co Q
Ltd v Maharaj Bookstore Ltd [2014] UKPC 21.
R 14. These authorities explained the limits of an appellate R
court in reversing the findings of fact of the primary judge. We
used the expression “primary judge” because it emphasizes the
S primary role of the first instance judge in the assessment of S
evidence and making of relevant findings of fact. In our
judicial system, the appellate process is not designed to give a
T T
litigant (or his counsel) a platform for regurgitating his closing
submissions on the evidence and factual aspects of the case
U U
V V
-7-
A A
again with the hope that the appellate judges may come to a
different view to that of the primary judge. It is thus, as we
B said above, a misuse of the appellate process to place before B
this court submissions which, in substance, are (or should be)
C submissions advanced by way of closing submissions at the C
trial after the judge has heard all the evidence.
D 15. In an appeal, the court of appeal should focus on the D
question whether the primary judge has fallen in palpable
errors which could give rise to grounds for intervention by the
E appellate court. As explained in the cases, it is not germane E
that judges in this court may reach a different conclusion from
F
that of the judge. There are many areas, particularly those in
F
relation to findings of fact, where judges can reasonably reach
different conclusions from each other. That would not be a
G ground for intervention. G
16. Thus, in an appeal, it is not helpful if counsel and
H litigant (acted in person) only repeat submissions already H
advanced and considered by the primary judge at the trial. The
starting point should be the judgment of the primary judge and
I I
the identification of palpable errors (which must be errors of
such nature which warrants intervention from this court) in the
J judgment. The mere assertion that the finding of the judge is J
against the weight of the evidence or that the judge should have
reached another conclusion because of points advanced in the
K closing submissions below are not errors coming within that K
category.
L L
M
13. On appeals against the exercise of discretion, The Hong M
Kong Civil Procedure (2021) has the following discussion at §59/0/54,
N N
Appeals against exercise of discretion—There are many
authorities for the proposition that an appeal will not be
O entertained from an order which it was within the O
discretion of the judge to make, unless it be shown that he
P exercised his discretion under a mistake of law ( Evans v. P
Bartlam [1937] A.C. 473 ) or in disregard of principle
( Young v. Thomas [1892] 2 Ch. 134 ) or under a
Q misapprehension as to the facts (ibid.); or that he took Q
into account irrelevant matters ( Egerton v. Jones [1939] 3
R All E.R. 889 at 892, CA) or failed to exercise his discretion R
(Crowther v. Elgood (1887) 34 Ch D 691 at 697) or the
conclusion which the judge reached in the exercise of his
S discretion was “outside the generous ambit within which a S
reasonable disagreement is possible” ( G. v. G. [1985] 1
T W.L.R. 647 ; [1985] 2 All E.R. 225 , HL). See also Banque T
Nationale de Paris v. Chan U Tong [1968] H.K.L.R. 151 ,
and Fung Tin Keung v. Hong Kong Wah Yuen Investment Co.
U U
V V
-8-
A A
& Another [1967] H.K.L.R. 650 , and Re SY Engineering Co.
Ltd (unrep., CACV 1896/2001; [2002] H.K.E.C. 241 , CA)
B (appeal against a winding up order)… (emphasis added) B
C C
14. Thus, it is simply of no use and no assistance for the
D husband to just repeat his arguments. In coming to the findings of fact, I D
E
have in the Judgment set out the relevant evidence and my analysis on
E
why some evidence are accepted and some are rejected. It is unnecessary
F F
to repeat my analyses and conclusions here. In order to challenge the
G primary findings of fact, the husband must be able to point out how the G
conclusion of the facts was plainly wrong. I have no doubt that the
H H
husband has failed to do so. It also has to be remembered that the
I husband failed to file his section 7 narrative affirmation and elected not I
to give any evidence at trial. Thus, the truthfulness of his evidence and
J J
the veracity of his case could not be tested: see [31] of the Judgment. Of
K particular relevance are his assertions as regards the alleged loans from K
his mother, his liabilities owed to the banks and his financial needs which,
L L
without his evidence, simply cannot be substantiated.
M M
N Paras [1] & [2] N
15. The husband says he remains to be unemployed and he still
O O
has to pay (1) the mortgage repayments of the former matrimonial home
P and (2) his debts to the banks. He does not have the ability to pay P
maintenance to his children.
Q Q
R R
16. I was well aware that the husband was unemployed at the
S time of trial in April / May 2021. I dealt with the husband’s earning S
capacity in light of his qualifications and work history and came to a
T T
conclusion that he would have an earning capacity of at least $60,000 per
U U
V V
-9-
A A
month. Of particular relevance is that, in his closing submissions, the
B husband mentioned he was interviewing jobs and there were a lot of B
potential offers: see [71] to [75] of the Judgment. The Judgment was
C C
given about 3 months after the closing submissions. On the evidence
D D
before me I was entitled to come to the conclusion (which I did) that the
E
husband would have the ability to pay maintenance to his children. E
F F
17. As regards the mortgage repayments and the loans
G repayment, it has to be pointed out that the mortgage loans and the sum G
owed under the Charging Order have already been taken into account in
H H
arriving at the net value of the former matrimonial home upon the sale of
I I
it: see [69] & [117] of the Judgment. These liabilities would be repaid
J
out of the proceeds of sale. It is therefore important that the order for J
sale of 16 August 2021 is to be carried out within the timeframe set by
K K
this court.
L L
18. Again, in order to challenge the maintenance payment orders
M M
the husband must be able to point out how I erred in the consideration or
N N
analysis of the evidence before me at trial that led to the conclusion. The
O
husband’s assertion that he remains to be unemployed is not a ground. O
P P
Para [14] - Reimbursement of $25,607
Q 19. At para [14], the husband complains about the Q
reimbursement of $25,607 that I allowed in favour of the wife: see [113]
R R
of the Judgment. This money represents half of the student loan and the
S S
outstanding management fee the wife paid on behalf the husband after
T
their separation. He says it is unfair to him because at all times during T
the relationship the mortgage repayments and the utilities were paid by
U U
V V
- 10 -
A A
him. As said, this $25,607 represents half of the money. The student
B loan and the management fees were post-separation expenses and B
therefore should have been born by the parties in equal shares. The
C C
husband simply fails to point out how I erred in the exercise of the
D D
discretion in allowing the reimbursement.
E E
Para [19] - The Husband’s HSBC Account
F F
20. The husband also complains, at [19] of his Intended
G Grounds, about what I said of the disclosure of his HSBC account. I G
must confess I do not find this a relevant ground. As I said in [61] of the
H H
Judgment, I took the view that even for any reason the husband indeed
I I
failed to make a disclosure, it is clear that this account was for repayment
J
of the monthly mortgage payments of the former matrimonial home and J
there was no substantial sum of money in it. I made myself clear in [61]
K K
& [105] of the Judgment that this was immaterial even where there was a
L non-disclosure and that no adverse inference as regards his financial L
situation was drawn against him.
M M
N N
Conclusion & Order
O
21. For the reasons aforesaid, I have no doubt that the husband’s O
application is unmeritorious. There is simply no reasonable prospect of
P P
success nor is there some other reason in the interests of justice so that
Q the appeal should be heard. The husband’s application should be Q
dismissed and I so order.
R R
S Costs S
22. I see no reason why the husband should not be ordered to
T T
pay the costs of his application. The wife’s solicitors have already
U U
V V
- 11 -
A A
lodged their Statement of Costs for summary assessment. I consider this
B is the appropriate approach. The Statement of Costs states a total sum of B
$52,259. Adopting a board brush approach, I would allow a sum of
C C
$30,150 (with $20,000 as counsel’s fee). I make an order nisi that the
D husband do pay the wife’s costs of this application, with counsel D
E
certificate, and that such costs are summarily assessed at $30,150. E
F F
G G
H
(I. Wong) H
District Judge
I I
Ms Claris Kwong, instructed by Cheung & Co, Solicitors, for the
J
petitioner J
JJ also known as JJ, the respondent, in person
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
FCMC2960/2018 LYI also known as YIL v. JJ also known as JJ - LawHero