CACV 388/2007





(On Appeal from FCMC No. 6197 of 2003)



WSW Petitioner
YKK Respondent

Before: Hon. Cheung and Yuen JJA and Yam J in Court

Date of hearing: 25 November 2008

Date of judgment: 8 December 2008




Hon. Yuen JA (giving the judgment of the Court):

1. On 24 February 2006 Deputy Judge Jenkins gave an order in the Family Court in respect of an application for ancillary relief.

2. The Respondent in the Family Court proceedings (“the Husband”) appealed. He also made an application for leave to adduce freshevidence. He was represented by counsel.

3. At the hearing of the appeal on 24 June 2008 this court refused leave to adduce fresh evidence and on 30 June 2008 we gave judgmentallowing the Husband’s appeal on what has been referred to as the DD v LKW ground (which was not argued before the judge) and varied the judge’s orders.

4. The Husband, not satisfied with the varied orders and now acting in person, has applied for leave to appeal to the Court of FinalAppeal.

5. Section 22(1) of the Hong Kong Court of Final Appeal Ordinance Cap. 484 sets out the conditions for granting leave to appeal to the Court of Final Appeal.

6. We do not see how s.22(1)(a) applies.

7. Accordingly, the Husband must show that the question involved in his intended appeal is one which, “by reason of its great generalor public importance, or otherwise”, ought to be submitted to the Court of Final Appeal for decision (see s.22(1)(b) HKCFAO).

8. The Husband has made extensive written submissions in Chinese which deal with the individual facts of this case. We have perusedthem and we do not consider that they reveal any question which, “by reason of its great general or public importance, or otherwise”,ought to be submitted to the Court of Final Appeal for decision

9. The Husband has however also provided an opinion written by counsel (not the counsel who represented him at the appeal) who hassuggested that when this court adopted the parties’ separation in 1993 as the cut-off point for the purposes of identifying themarital assets, that “brings forth the following important questions for the resolution of the Court of Final Appeal:

(a) the applicability of White v White and Miller & Another v Miller & Another in Hong Kong; and

(b) in what circumstances or conditions the Court can exclude acquisition made during the parties’ separation from the computationof the available assets for distribution under the matrimonial regime”.

In his written opinion, counsel referred to the judgment of Nicholas Mostyn, QC sitting as Deputy High Court Judge in Rossi v Rossi [2006] EWHC 1482 (Fam) where it was held, amongst other things, that an asset acquired post-separation may be treated as non-matrimonial property if thatasset was acquired by a party by virtue of his own personal industry, and not by the use of an asset created during the marriageand in respect of which the other party can assert an unascertained share.

10. A re-reading of the written submissions of the Husband’s counsel at the appeal has confirmed that Rossi v Rossi was not referred to this court during the appeal and that argument was not advanced. Rather it was argued on behalf of the Husbandthat the separation should not be taken as the cut-off point because the Husband and Wife were partners or quasi-partners of thebusiness (as in Dunbar, In marriage of; Dunbar (Intervener)), so that whatever the Wife made with the assets of the business after the Husband left should be included (see para. 51 of the judgmenthanded down on 30 June 2008). In that part of our judgment, we have sought to explain how on the facts of this case, there was nopartnership or quasi-partnership, with the result that there was a clean break of the marital assets at the time of the separationin 1993.

11. In the circumstances we do not see that our judgment involves any question of great general or public importance, nor do we seeany other reason, for leave to be given to appeal to the Court of Final Appeal. The application is dismissed with costs to be paidby the Husband to the Wife.

Justice of Appeal Justice of Appeal Judge of the Court of First Instance

Mr Peter Chung instructed by Edmund Cheung & Co for the Petitioner (Respondent)

The Respondent (Appellant) in person, present.