IW v IX

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 13 October 2005
• Neutral Citation: [2005] SGCA 48
• Docket Number: Originating Motion No 24 of 2005
• Date: 13 October 2005
• Published date: 14 October 2005
• Year: 2005
• Plaintiff Counsel: Michael Hwang SC (Michael Hwang) and Bernice Loo Ming Nee (Allen and Gledhill)
• Citation: [2005] SGCA 48
• Defendant Counsel: Quentin Loh SC, Vivien Teng, Kee Lay Lian (Rajah and Tann)
• Court: Court of Appeal (Singapore)
• Subject Matter: Appeals,Whether proposed appeal raising custody issue involving question of law of importance,Leave,Whether leave should be granted based on test of realistic prospect of success,Husband in matrimonial case heard in district court appealing to High Court and thereafter wife seeking leave to appeal to Court of Appeal,Principles for court to apply when considering whether to grant leave to appeal,Civil Procedure

13 October 2005

Chao Hick Tin JA (delivering the judgment of the court):

1 This was an application by motion for leave to appeal against the decision of the High Court which reversed the decision of the district court (the Family Court) on a custody matter involving a child aged nine. Having heard the oral arguments of the parties, we refused leave. These grounds are issued in response to the arguments advanced by the applicant-wife that the circumstances under which the courts in Singapore should grant leave to appeal should be expanded following the English Court of Appeal decision in Smith v Cosworth Casting Processes Ltd [1997] 4 All ER 840 (“Smith v Cosworth”).

The background

2 The applicant-wife and the respondent-husband were married in 1991. They have two daughters. The older child is now aged 11 and the younger is nine years old.

3 In March 2001, the wife’s employer posted her to New York to take up a new appointment there. In April 2001, her husband and the two children went over to New York to join her. Within a matter of a day or two, the wife dropped a bombshell on the husband indicating that she wanted a divorce and asking him to sign a deed of separation prepared by her lawyer. About two months later the husband returned to Singapore with the older daughter, leaving the younger daughter in New York with the mother. Apparently, the husband could not take the younger child back to Singapore because the wife had insisted on keeping the child with her and refused to release the child’s passport to him to enable the child to make the journey home. We ought to add here that the wife claimed that there was an agreement with the husband, following the parties’ separation, that the younger daughter could remain with her. This assertion was disputed by the husband.

4 Soon after the husband returned to Singapore, the wife (together with the younger daughter) moved in to live with her male companion, who has three children (aged six to nine) from his first wife. On 19 October 2001, the wife filed a petition for divorce in Singapore. On 6 August 2002, a decree nisi dissolving the marriage was granted. The parties managed to agree on other ancillary matters except in respect of the custody of the two children. On 1 December 2004, the district judge, after considering all the circumstances of the case, including three custody evaluation reports, granted custody of the older daughter to the husband and the younger daughter to the wife. The district judge also made provisions for access by both parties to the child not in his or her custody so that the two children would have sufficient time together.

5 The husband was dissatisfied with the custody order made by the district judge with regard to the younger child and filed an appeal. The appeal came before Andrew Ang JC (as he then was) who made the following orders:

(a) There shall be joint custody of the younger child to the husband and the wife but care and control of the younger child shall be with the husband.

(b) That the husband and the wife agree on access, if possible, failing which there would be liberty to apply.

Before arriving at this conclusion, the judge had an extensive interview with the younger child to gauge her feelings on the matter.

Appeal framework

6 Section 28A(1) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“SCJA”) empowers the Chief Justice, “where he considers it necessary or expedient to improve efficiency in the administration of justice and to provide for more speedy disposal of proceedings commenced in the High Court” to, by order, direct that such proceedings be heard and determined by the district court. Section 28A(2)(b) of the SCJA further provides that the Chief Justice may, in any such order, make provision governing appeals relating to proceedings so transferred to the district court.

7 Pursuant to the powers under s 28A, the Chief Justice made the Supreme Court of Judicature (Transfer of Matrimonial, Divorce and Guardianship of Infants Proceedings to District Court) Order 2003 (S 557/2003) which is the Order now in force. Under para 2 of this Order, proceedings under Part X of the Women’s Charter (Cap 353, 1997 Rev Ed), which covers divorce, custody and maintenance matters, commenced in the High Court, are transferred to be heard and determined by a district court. However, under the same paragraph, where the gross value of the matrimonial assets is asserted by any party to the proceedings to be of or above the value of $1.5m, the application for division of matrimonial assets must be transferred to and be heard and determined by the High Court.

8 Finally, in para 6 of the same Order, it is provided that an appeal shall lie to the High Court in respect of a decision of the district court in relation to any proceedings heard and determined by the district court pursuant to the Order. The paragraph further provides that no further appeal shall lie against such a decision of the High Court “[e]xcept with the leave of the Court of Appeal or a Judge of the High Court”.

9 There was no dispute between the parties that in relation to the custody order made by Andrew Ang JC, leave must be obtained before the matter could be brought to this court.

Principles governing leave

10 We now turn to consider the principles on which such leave should be granted. In terms of local jurisprudence, we need not go further back than Anthony s/o Savarimiuthu v Soh Chuan Tin [1989] SLR 607, where the High Court had to decide whether leave should be granted to enable an appeal to be taken in the case as the amount involved was below the limit set by s 21 of the SCJA. In this regard, Lai Kew Chai J examined two previous cases, namely, Wong Yin v Wong Mook [1948] 1 MLJ 164 and Pang Hon Chin v Nahar Singh [1986] 2 MLJ 145, and came to the conclusion (at 608, [2]):

The circumstances for granting leave would include (though obviously not limited to) cases where an applicant is able to demonstrate a prima facie case of error or if the question is one of general principle upon which further argument and a decision of a higher tribunal would be to public advantage.

11 Next is the case of Lee Kuan Yew v Tang Liang Hong [1997] 3 SLR 489, where leave was applied for to appeal against a costs order. Under s 34(2)(b) of the SCJA, leave is required where the only issue in the appeal relates to costs. There this court declared at [16] that:

[I]t is apparent that there are at least three limbs which can be relied upon when leave to appeal is sought: (1) prima facie case of error; (2) question of general principle decided for the first time; and (3) question of importance upon which further argument and a decision of a higher tribunal would be to the public advantage.

12 In the present case, in requesting us to grant leave, the wife effectively asked us not to follow what this court had laid down in Lee Kuan Yew v Tang Liang Hong to be the applicable guidelines in granting leave, but to adopt the more liberal approach enunciated by the English Court of Appeal in Smith v Cosworth ([1] supra) where the plaintiff’s (Smith’s) action was struck out under the English County Court Rules O 17 r 11. There, the plaintiff sought leave to appeal from a single Lord Justice who granted it. The defendant took the matter to the full Court of Appeal where Lord Woolf MR laid down, inter alia, the following guidelines (at 840–841):

(a) The court will only refuse leave if satisfied that the applicant has “no realistic prospect of succeeding on the appeal”. This test is not to be treated differently from “no arguable case”.

(b) However, the court can grant leave even if the court is not satisfied that the appeal has any prospect of success, eg, the issue may be...