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

Ve (Nee Ke) v Vrj

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date31 March 2016
Subject MatterMatrimonial Causes
Judgement NumberFCMC7676/2011
CourtFamily Court (Hong Kong)
FCMC7676D/2011 VE (nee KE) v. VRJ

FCMC 7676/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7676 OF 2011

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

BETWEEN
VE (nee KE) Petitioner

and
VRJ Respondent

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

Coram: Deputy District Judge I. Wong in Chambers (Not Open to Public)
Date of Hearing: 8 March 2016
Date of Handing Down Judgment: 31 March 2016

__________________

J U D G M E N T
(Leave to Appeal)

__________________

Introduction

1. This is an application for leave to appeal by the respondent husband against some of my decisions on the ancillary reliefs of the parties upon their divorce as set out in a Judgment handed down on 5 October 2015 (“the Judgment”).

2. For convenience, I continue to adopt the same abbreviations of the persons involved. Thus, the petitioner wife is referred to as “P”, the respondent husband “R”, their daughter “J” and their son “A”.

3. In trial, what I had to deal with were essentially two issues. The first was the disposal of the balance of proceeds of sale of the matrimonial home being held in court and the second was on the maintenance of P and the children of the family. I decided that out of the $3.8 million being held in court, $1 million should be applied for the benefit of the 2 children and the balance should go to P. In coming to the award as I did, I considered the needs of the parties were determinative and that the assets available were insufficient to cater for the needs of both parties: §§ 64 and 91 of the Judgment. I gave priority to the needs of the children of the family (§§ 75 – 80 of the Judgment) and I considered that since R had already got the US Colorado Home and the US retirement funds, it was fair for P to have the balance of the sale proceeds after the needs of the children had been catered for (§§ 82 – 84 & 92 of the Judgment). Thus, I gave the following orders:

1. A lump sum of $1,000,000 be released and paid out to R from the monies now being held in court for the benefit of the two children of the family, namely, J and A, with $500,000 for each of them;

2. R shall place the monies into two joint accounts, with $500,000 each. One account is to be in the joint names of R and J and another account in the joint names of R and A. R shall only use the monies exclusively for the education expenses including university tuition of J and A;

3. R do pay P a periodical payment of $7,000 per month for the maintenance of P. The first payment to be made on or before 1 November 2015 and thereafter on the 1st day of each and every month during the joint lives of the parties or until the remarriage of the petitioner, which is the shorter;

4. After the payment out of $1,000,000 according to paragraph 1 above and subject to the First Charge of the Director of Legal Aid the balance of the money held in court be released and paid out to the petitioner’s solicitors or the Director of Legal Aid;

5. Subject to the First Charge of the Director of Legal Aid the balance of the escrow money now being held by P’s solicitors be released and paid out to P or the Director of Legal Aid;

6. The respondent is to return the children to Hong Kong on school Christmas holidays, summer holidays and school holidays with not less than 14 days, if any, for the petitioner to exercise care and control on the children. The respondent is to be responsible for the children’s cost of flights; and

7. The Order dated 27 February 2015 allowing for withdrawals is set aside.

8. There be an order nisi of no order as to costs of the ancillary relief proceedings, including all costs reserved. The petitioner’s own costs to be taxed in accordance with Legal Aid Regulations, with counsel certificate.

4. By his summons dated 2 November 2015, R applied for leave to appeal against paragraphs 3, 4 and 8 of the Order. Subsequently, by a letter dated 23 February 2016, R abandoned his appeal against paragraph 3. I was told in the substantive hearing that, in compliance with the order, R has been making periodical payments to P. Thus, what remain are R’s challenge against my decisions (1) to award P the remaining sum being held in court in the region of $2.86 million and (2) to give no order as to costs of the ancillary relief.

5. Apart from leave to appeal, R also seeks a stay of execution pending the determination of his leave application. There is also a minor issue that R asks to have his living expenses for September and October 2015 paid out according to the order dated 27 February 2015. These are the monies that he was entitled to prior to the Judgment.

6. As I have already set out the parties’ case and the finding of facts in the Judgment, I do not propose to repeat them here. References to the relevant parts of the Judgment will be made as and when necessary.

The Legal Principles

7. The parties have no dispute over the applicable legal principles.

8. The threshold for granting leave is provided in section 63A(2) of the District Court Ordinance (Cap 336) (“the 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]

9. The Court of Appeal discussed the application of s 63A(2) of the DCO in Sunny Tadjudin v Bank of America, National Association (unrep., HCMP No 691 of 2012, 29 June 2012) at §§ 8 – 9:

“8. Under section 63A(2) of the District Court Ordinance, Cap 336, leave to appeal to the Court of Appeal shall not be granted unless the Court of Appeal is satisfied that the appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice why the appeal should be heard. Counsel relies on both limbs in section 63A(2) in seeking leave to appeal.

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).”

10. R has two grounds of appeal.

Ground 1: Legal Cost and First Charge of the Director of Legal Aid (“DLA”)

R’s Case

11. Mr Cooney SC, who appears in this application but not in trial, submits that I erred in finding that, subject to taxation, P had a liability of $5,778,893, being “legal costs owed by P to DLA” (§ 18 of the Judgment). In fact, these monies were not liabilities of P prior to the Judgment. Further, I also erred in treating DLA’s first charge as a liability of P.

12. The only liability P had prior to the judgment, as far as legal costs were concerned, was the total contribution payable by P to DLA pursuant to section 18(1)(b) of the Legal Aid Ordinance, Cap 91. P was and is under the Ordinary Legal Aid Scheme. The amount of contribution that an aided person is required to make under this Scheme ranges from nil up to 25% of his financial resources as assessed by DLA, with a ceiling of $72,595: Regulation 13 and Part 1 of Schedule 3 of the Legal Aid (Assessment of Resources and Contributions) Regulations, Cap 91B. Thus, the amount of contribution that P was required to make was at most $72,595. It could never have been as high as $5,778,893. That was the money spent by DLA but certainly that was not P’s liability.

13. DLA’s first charge was also not a liability prior to the award of the balance of the sale proceeds. Section 18A(1) of the Legal Aid Ordinance, Cap 91 provides that,

(1) Subject to this section-

(a) the amount of a contribution to the extent that it is unpaid; and

(b) except where legal aid has been granted under the Supplementary Legal Aid Scheme, if the total contribution is less than the net liability of the Director on the aided person's account, a sum equal to the deficiency,

shall be a first charge for the benefit of the Director on any property, whether situated in Hong Kong or otherwise, which is recovered or preserved for the aided person in the proceedings or in any other proceedings in respect of which the person was aided and which, in the opinion of the Director, were substantially related to or connected with the proceedings in which property was recovered or preserved.

(2)…

(emphasis added)

14. Thus, the charge would spring into existence only when and if an aided person is successful in recovering or preserving property in the legally aided proceedings. If P is successful in recovering or preserving property, she would be required to repay DLA all sums paid or payable on her behalf out of the property recovered or preserved. Accordingly, where no money or property was recovered or preserved, P would not be required to pay any costs and expenses incurred on her behalf, save and except the contribution payable under the said section 18(1)(b).

15. In the premises, I should not have taken DLA’s first charge or DLA’s legal costs incurred into consideration when rendering my decision or found that they were liabilities of P. It follows that I also erred in finding that since R already has the Colorado Home and the retirement funds, “it is fair that P should be given the remaining sum in court for her maintenance, inclusive payment of her legal costs”: § 83 of the Judgment.

16. In contrast, the...

To continue reading

Request your trial

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