Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

S v C

Judgment Cited authorities 5 Cited in 1 Precedent Map Related
Vincent
Judgment Date21 September 2021
Neutral Citation[2021] HKCA 1372
Judgement NumberCAMP243/2021
Subject MatterMiscellaneous Proceedings
CourtCourt of Appeal (Hong Kong)
CAMP243/2021 S v. C

CAMP 243/2021

[2021] HKCA 1372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 243 OF 2021

(ON AN INTENDED APPEAL FROM FCMC NO 15393 OF 2018)

____________

BETWEEN
S Petitioner

and
C Respondent

____________

Before: Hon Cheung and G Lam JJA in Chambers
Dates of Written Submissions: 6 and 19 July and 25 August 2021
Date of Decision: 21 September 2021

_________________

D E C I S I O N

_________________

Hon Cheung JA:

1. I agree with the decision of G Lam JA and the costs order he proposes to make.

Hon G Lam JA:

2. This is an application for leave to appeal from the decision of Deputy District Judge Thelma Kwan (“the judge”) dated 23 March 2021 (“Decision”) ordering the respondent (whom I shall refer to as “H”) to pay maintenance pending suit (“MPS”) and legal costs contribution to the petitioner (whom I shall refer to as “W”).[1] The judge herself refused leave to appeal in a decision dated 22 June 2021 (“Leave Decision”).[2] If leave is granted by this court, H also seeks a stay of execution of the judge’s order pending appeal.

3. The background may be briefly stated. H and W were married in 2007 and have two children of tender age. H is a barrister. W was a flight attendant but her employment was terminated by the employer on 21 October 2020. H and W separated in October 2016. The children, who are in their joint custody, live at the matrimonial home with H, who has become their primary carer, with the help of a domestic helper. W filed her petition on 5 December 2018. Forms E were exchanged on 15 February 2019. A decree nisi was pronounced on 27 November 2020.

4. W took out a summons for MPS on 31 August 2020. She sought $30,000 per month in MPS and $30,000 per month for legal costs contribution. H opposed the application. In the end the judge ordered H to pay W MPS of $28,500 per month, and legal costs contribution of $20,000 per month, both backdated to 1 September 2020.

5. There is an irregularity in H’s application for leave in that the draft notice of appeal for his summons in this court is not the same as the draft notice of appeal placed before the judge. The grounds have in part been changed and the numbering has also changed. This has made it difficult for this court to refer to the views of the judge in the Leave Decision. More importantly, to the extent that the new draft contains, as it does, grounds not stated in the draft before the judge, those grounds are being raised for the first time in this court. No basis has been identified for allowing H, in effect in relation to those grounds, to circumvent the requirement that an application for leave to appeal should first be made to the judge below before it is made to this court (see Order 59 rules 2B and 14(4) of the Rules of the High Court (Cap 4A)). Accordingly, I shall confine my consideration to the grounds raised before the judge, using the numbering in that draft notice of appeal.

6. H has advanced 9 grounds (with numerous sub‑paragraphs) in the draft notice of appeal. Before dealing with these grounds, it should be noted that the determination of an application for MPS is an exercise with a high discretionary content. The proper approach of the appellate court in an appeal from an order for MPS is well established by the authorities, as summarised by Judge A Tse in ALDL v FTFC [2020] HKFC 180 as follows:

“ 5. The granting of maintenance pending suit is a discretionary remedy. On appeal, the Court of Appeal will not exercise the discretion afresh. Instead, it will only interfere with the decision when the discretion was wrongly exercised, such as being contrary to the principle or the primary judge had wrongly taken into account irrelevant matters or ignored relevant matters [see MWY v HWM HCMP 120/2017, 16 May 2017; WW v LLN [2019] HKCA 1278 at §§ 15‑17.]

6. In CHWA v LNLAI [2019] HKCA 1017 at § 3.1, the Court of Appeal, in refusing leave to appeal, stressed ‘the interim nature of [maintenance pending suit] which generally requires the Court to adopt a broad brush approach in deciding the amount to be awarded. It is also for a limited duration until the final resolution of the issue of financial relief of the parties. Inevitably there will be adjustment to the final order to be made in the event of overpayment or underpayment of [maintenance pending suit].’

7. The threshold for appealing against an order for maintenance pending suit is a high one. The court is inclined to leave factual questions of expenses and income for determination at the ancillary relief hearing. The Court of appeal also stated that appeals against maintenance pending suit orders are ‘rare’ and the ‘powers of interference [of an appeal court] are strictly limited’: K v K [2011] 1 HKC 66 at §§ 1, 3; Hewitt, Family Law and Practice in Hong Kong (3rd ed. 2018), § 6.076.”

7. It is important to note that MPS is an interim measure, intended to be temporary, and subject to adjustments in the final orders to be made in the determination of ancillary relief. Overall fairness can be achieved at that point by giving credit and set‑off if there is found to have been any overpayment or underpayment in the interim. In other words, an order for MPS does not finally determine the rights and obligations of the parties, and since it involves simply the payment of money, its effects may in general be redressed by monetary relief at the end. This explains why in relation to MPS the courts “take a broad view” of the parties’ finances rather than engage in any detailed investigation, adopt a “broad brush” approach, and seek to arrive at “rough and ready” conclusions (see Rayden and Jackson on Relationship Breakdown, Finances and Children at §11.78; HJFG v KCY [2012] 1 HKLRD 95, §§32-38). Appeals should be rare and the parties should be encouraged instead to focus on, and bring about as early as practicable, the final resolution of their dispute. As has been said in Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 at §30 (albeit not specifically with regard to MPS), even if the threshold of reasonable prospects is met, the court may nonetheless in its discretion refuse leave to appeal in the interests of procedural economy and proportionality. For my part, I consider that leave to appeal from MPS orders should generally not be granted unless there is some special reason why the matter cannot or should not be left to the ancillary relief stage such as serious hardship caused by the...

To continue reading

Request your trial
1 cases
  • Rmh v Gy
    • Hong Kong
    • Family Court (Hong Kong)
    • 29 October 2021
    ...in Hong Kong or LA, has yet to be tested at trial. 29. Ms Irving draws my attention to a very recent Court of Appeal judgment in S v C [2021] HKCA 1372, CAMP 243/2021 (date of Judgment: 21 September 2021) where Hon G Lam JA 6. The proper approach of the appellate court in an appeal from an ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT