Ww v Lln Formerly Known As Lsm

CourtFamily Court (Hong Kong)
Judgment Date12 Sep 2019
Neutral Citation[2019] HKFC 236
Judgement NumberFCMC4996/2018
SubjectMatrimonial Causes
FCMC4996A/2018 WW v. LLN formerly known as LSM

FCMC 4996/2018

[2019] HKFC 236

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4996 OF 2018

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BETWEEN
WW Petitioner
and
LLN Respondent
formerly known as
LSM

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Coram: HH Judge C.K. Chan in Chambers
Mode of Hearing: By way of written submissions
Date of Petitioner’s Written Submissions: 6 August 2019
Date of Respondent’s Written Submissions: 20 August 2019
Date of Handing Down Judgment: 12 September 2019

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

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1. This is a determination on the petitioner husband (“the husband”)’s application for leave to appeal against the maintenance pending suit (“MPS”) order granted on 23 July 2019 in which the respondent wife (“the wife”) was granted the following MPS from the husband:

(1) $60,000 per month payable on 1st day of every month starting from 1 August 2019 until further order of the court;

(2) $50,000 per month as litigation funding payable on the 1st day of every month starting from 1 August 2019 until further order of the court and such payment should be made directly to the solicitors acting for the wife; and

(3) A lump sum of $660,000 within 14 days as backdated payment to cover the MPS and litigation funding as from 1 February 2019 to 1 July 2019.

2. The wife opposes the husband’s application for leave to appeal.

The Law

3. 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.”

4. 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 Husband’s Draft Notice of Appeal

Burden of Proof

5. The husband must be right in saying that the burden of proof is always on the applicant, i.e. the wife in this case, to prove her case on a balance of probabilities. That is simply a submission on the obvious. The issue here is whether this court has wrongly shifted that burden to the husband.

6. It has to be noted that nowhere in the MPS Judgment did I expressly say that the burden of proof was not on the wife. I was simply silent on this topic as that was not a major issue at the time. However, in §13 of the judgment, I have referred to paragraphs 37 and 38 of Hartmann JA’s judgement in HJFG v KCY[2], in particular, paragraph 37(c) where His Lordship restated the principles on MPS as laid down in the English case of TL v ML [2006] 1 FLR 1263, 1289 as follows:

“(c) In every maintenance pending suit application there should be a specific maintenance budget which excludes capital or long-term expenditure, more aptly to be considered at the final hearing. The budget should be examined critically in every case to exclude forensic exaggeration.”

By relying on such a legal principle, I was fully aware that the wife had a duty to produce a MPS budget for the court’s consideration and the implication must be that she also had the burden to prove her case including the said budget.

7. The husband referred to §26 of the judgment saying that I have erred in law in stating that there was no evidence or claim from the husband that the wife had a good income source. This court was purely stating a fact and I fail to see how that could be translated into a shift of the burden of proof to the husband.

8. The husband also referred to §§29-30 of the judgment concerning the wife’s bare assertions on some of the items in her MPS budget.

9. First of all, the wife’s assertions in her Form E or supporting affirmation are part and parcel of her evidence, be they bare or not. There can be no dispute that the court will adopt a broad-brush approach and no detailed analysis will be carried out at this interim stage. That was why some of the claimed items were reduced by this court in view of the lack of some more objective evidence. Again, I fail to see how that could be interpreted as shifting the burden of proof to the husband.

10. I am not satisfied that the husband has any reasonable prospect of success on this ground.

Quantum of MPS: $60,000 per month

11. The husband submitted that I have erred in allowing the sum of MPS at $60,000 per month without any evidential basis and only relying on the bare assertions of the wife.

Discussion

12. In §§28-38 of the judgment, I have considered the wife’s MPS budget and it is true to say that for some of the items, there was no objective evidence produced apart from the wife’s own assertions.

13. As I have said earlier, the wife’s own assertions were evidence in themselves but as there was a lack of objective evidence in support of the quantum, I have exercised my discretion in reducing the amount of some of those items. This must be right if one should adopt a broad-brush approach. I am sure that the husband is not advocating that the wife would have no expenses...

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