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Wzr v Lwc

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date03 January 2020
Neutral Citation[2020] HKFC 9
Judgement NumberFCMP208/2018
Subject MatterMiscellaneous Proceedings
CourtFamily Court (Hong Kong)
FCMP208A/2018 WZR v. LWC

FCMP 208/2018

[2020] HKFC 9

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT MISCELLANEOUS PROCEEDINGS NO. 208 OF 2018

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

BETWEEN
WZR Applicant
and
LWC Respondent

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Coram : Deputy District Judge Doris To in Chambers (paper disposal)
Date of Written Submission in Opposition : 4 December 2019
Date of Decision : 3 January 2020

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Decision
(Leave to Appeal)

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1. This is the Applicant/Wife’s (“A”) application for leave to appeal against the Decision made on 6 November 2019 whereby it is ordered that the ex-parte leave granted on 27 September 2018 for A to apply for financial relief against Respondent/Husband (“R”) under Part IIA of the Matrimonial Proceedings and Property Ordinance Cap 192 be set aside (“the Decision”). R opposed this application.

2. The said ex-parte leave to seek redress in Hong Kong court was granted on the ground that the PRC courts did not deal with the parties’ properties in Hong Kong for lack of jurisdiction. And it was the same Court that set the ex-parte leave aside.

3. In setting aside the ex-parte leave, the Court held that in granting leave it was misled by misrepresentations in relation to the jurisdictional point and A’s failure to unearth the whole truth by addressing the Court on material matters. In protecting the court’s process from abuse, the Court exercised its discretion to set aside the ex-parte leave; no re-grant yet leaving open the possibility for A to re-apply.

4. Section 63A of the District Court Ordinance Cap 336 provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.

Grounds of Intended Appeal

5. According to the draft Grounds of Appeal, the grounds of the intended appeal can be summarized as follows:-

(1) The Court erred in holding that A had misled the Court through material non-disclosure and/or misrepresentations on the issue of whether the PRC courts had exercised jurisdiction over properties in Hong Kong;

(2) The Court erred in concluding that the PRC court did not deny jurisdiction and had in fact dealt with A’s case on the sale proceeds of Hong Kong properties;

(3) The Court erred in concluding that the alleged non-disclosure or misrepresentations amounted to clear and stark circumstances for setting aside leave;

(4) The Court has applied the wrong test in focusing exclusively or predominantly on whether the Court was misled in granting ex-parte leave, without paying proper regard to the merits of A’s case for financial relief under Part IIA; and

(5) The Court failed to have any or any sufficient regard to matters which militate against setting aside ex-parte leave and/or refusal to re-grant.

Whether the intended appeal has a reasonable prospect of success

Grounds (1) and (2)

6. A said there was no non-disclosure or misrepresentation in her ex-parte leave application because she has referred to and quoted relevant statements of the PRC judgments to explain the lack of jurisdiction. (§(1)(a) – (d) of the draft Grounds of Appeal)

7. A also said the Court has erred in rejecting her explanation on the jurisdictional point. (§(2)(a) – (k) & (3) of the draft Grounds of Appeal)

8. As seen in §25 - 35of the Decision, the Court upon analysis and weighing of the evidence has identified A’s misrepresentations one by one. In seeking leave to appeal, A failed to demonstrate how the finding of misrepresentations is wrong and/or outside the ambit within which reasonable disagreement is possible, such that an appellate court would intervene.

9. In Henwood v Barlow Clowes International Ltd (in liquidation) & Ors [2008] EWCA Civ 577, the English Court of Appeal held:-

(a) “If an appellate court considers that the judge has come to a conclusion that is plainly wrong and outside the ambit within which reasonable disagreement is possible, it is bound to intervene even though the...

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