BT v CBY (2020) 23 HKCFAR 447

Eric Leung (led by Anita Yip SC) appeared for the successful respondent/judgment creditor before the Appeal Committee of the Court of Final Appeal in BT v CBY (2020) 23 HKCFAR 447.

By a consent order in divorce proceedings, the petitioner husband (H) undertook to pay a lump sum of $26 million to the respondent wife (W) in seven instalments within 36 months (the Consent Order). H failed to make any payment until one and a half years after the first instalment was due and then again defaulted. To enforce the Consent Order, W issued judgment summonses requiring H to show cause why he should not be committed to prison for such default. At the hearing of the judgment summonses, the Judge held that H originally had the means to pay W but wilfully chose not to do so. The Judge made a committal order suspended on condition that H pay W the outstanding $24 million with interest and a surcharge in a year’s time to allow him to sell two properties to raise funds to satisfy the judgment, and meanwhile make interim payments of $300,000 per month to W (the Committal Order). H again defaulted. W applied to activate the suspended sentence of committal. However, in light of the handing down of the judgment of the Court of Appeal in YBL v LWC [2017] 1 HKLRD 823, W’s application was refused. W issued a fresh application for committal, which was refused by the Judge on the basis that W was unable to show beyond reasonable doubt that H had the current ability to pay her what he owed. On W’s appeal, the Court of Appeal reversed the Judge’s decision, holding that the Judge had wrongly focused on the state of H’s means asserted at the time of the hearing of the committal application rather than on his conduct and means from the making of the Committal Order until expiry of the extended time for compliance and committed H to prison for three months (see [2020] 3 HKLRD 287). Having been refused leave to appeal by the Court of Appeal, H applied to the Court of Final Appeal for leave to appeal.

Held, dismissing H’s application for leave to appeal, that:

(1) The Court of Appeal’s decision did not give rise to any question involved in the appeal which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court for decision. The present case involved a transitional situation introduced by YBL v LWC which was most unlikely to recur and raised no point of general practical importance. The Court of Appeal’s decision did not break new ground but merely applied YBL v LWC in holding that the requirement was to show that the debtor “has or has had since the date of the order the means to pay the sum in respect of which he has made default” (YBL v LWC [2017] 1 HKLRD 823 considered). (See paras.10-11.)

(2) Not a single one of the over 20 questions submitted by H merited serious consideration as a possible basis for granting leave. The proffered questions were deficient in one or more ways: some did not arise at all; or were not argued below and could not be raised for the first time in the Final Court; or raised questions of fact rather than law. Generally, they were not reasonably arguable. An application for leave to appeal mounted in such an unprincipled and undisciplined manner was to be deprecated. It bordered on an abuse of process. (See paras.12-13, 21.)

(The above headnote is taken from HKCFAR.)


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