Cwk v. Ychs and Another
Read the full judgment text of FCMC 6082/2014 on BabelCite. This Family Court judgment was delivered on 18 November 2015 before Deputy District Judge G. Own.
Matrimonial proceedings – Specific discovery – Full and frank disclosure – Audited financial statements – Bank statements – Securities accounts – Credit card statements – Costs – District Court – Discovery ordered for UB and SW audited reports since incorporation, securities accounts and bank accounts from May 2011, Amex statements for missing months and future, BOC card statements refused – Petitioner's costs awarded to Petitioner.
Legal issues: Scope of discovery for Audited Financial Statements · Scope of discovery for Amex Card Statements · Scope of discovery for Securities Account Statements · Scope of discovery for Bank Accounts Statements · Scope of discovery for BOC Card Statements · Costs of Application
Outcome: Application for specific discovery granted in part; Costs awarded to Petitioner.
Cites 7 cases
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FCMC 6082 /2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 6082 OF 2014 ----------------------------
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------------------------- D E C I S I O N ------------------------- Introduction 1.This is the Petitioner’s (Wife’s) Summons dated 5 June 2015 (“Discovery Summons”) for specific discovery against the 1st Respondent (Husband) on information and materials disclosed under his Form E and Answers to Questionnaires. 2.The terms of the Discovery Summons are, inter alia, production of :-
3.For the sake of brevity, the documents sought can be categorised as follows :
Background 4.The parties were married in 1987 in Hong Kong. This is a childless marriage (despite numerous artificial conception attempts) which was ended after 27 years in 2014. The Husband is now 56 and the Wife is 52. At the time of the marriage, the Husband was a construction site foreman and the Wife was a teller at a Bank. 5.In 1991, the Husband’s career in the construction and engineering industry started to take off. In 1996, the Wife resigned from her full time employment of an assistant bank manager at that time and became a full time housewife to assist the Husband with his growing business. In 1999, the Husband met the 2nd Respondent and around 2 years later in 2001, the 2nd Respondent gave birth to the 1st child with the Husband. Since then, this “extra marital” relationship continues up until present and throughout these years 4 children are born by the 2nd Respondent. 6.It is common ground that throughout all these years the Husband had been financially maintaining the ‘4-child family’ formed with the 2nd Respondent in parallel to the ‘childless family’ with the Petitioner. The Divorce Proceedings 7.The Wife filed her Petition for divorce in May 2014 relying on the fact of “Unreasonable Behaviour”. Decree Nisi was granted on 24 July 2014 and all questions as to ancillary reliefs were adjourned for further disposal. 8.Parties exchanged their respective Form Es on 26 and 27 June 2014. The Wife served her 1st Questionnaire on 28 July 2014 (P2 : 419-429). The Husband’s Answers were filed on 25 August 2014 (P2: 524-543). The Wife issued a Summons on 9 April 2015 (P5: 1341 to 1344) seeking answers and documents in respect of the Husband’s Form E, inter alia, various bank deposits, securities account statements, MPF statements and other utilities expenses statements. This Summons was scheduled for hearing on 4 May 2015 which was then adjourned to 8 June 2015. 9.At a Direction hearing on 10 April 2015, the Petitioner obtained leave to serve her 2nd Questionnaire on or before 13 April 2015. This 2nd Questionnaire (P5: 1350 to 1402) was actually served 1 day late on 14 April 2015 of which no issue was taken by the Husband. The Husband then provided his answers to this 2nd Questionnaire on 29 May 2015 (P7: 1874 to 2273). The applicable legal principles 10.It is common ground the Wife is relying upon Order 24 rule 7 of the Rules of the High Court (“RHC”) seeking the present discovery which was made applicable to matrimonial proceedings (see Rule 3 of the Matrimonial Causes Rules, Cap.179A). 11.Order 24 rule 7 of the RHC provides : “Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it.” 12.Order 24 rule 8 of the RHC provides :
13.Moreover, Rule 77(4) of the Matrimonial Causes Rules Cap.179A (“MCR”) provides :-
14.It is also common ground that the Wife is seeking production of the actual documents listed in the terms of the Discovery Summons as opposed to the Husband filing any affirmation to verify and confirm whether the documents sought exist and whether in his custody, power and possession. Cases and Authorities 15.Senior Counsel Miss Anita Yip, SC for the Wife referred to a number of cases such as Paul’s Model Art GMBH & Co KG v. UT Ltd [2006] 1 HKC 238, Re Peruvian Guano Company (1882) 11 QBD 55, Yau Chin Kwan & Anor v. Tin Shui Wai Development Ltd unreported, CACV 247/2001, B v.B (matrimonial proceedings: discovery) [1979] 1 All ER 801 and K v.K unreported, FCMC 6100/2006. 16.Counsel Mr. Eugene Yim for the Husband referred to the cases of Melvin Waxman v. Li Fei Yu and others, HCA No.1973 of 2012, EL v. CFL, FCMC No.46858 of 2012, FCP v. CJLY, FCMC No.6202 of 2012 and Mimi Kar Kee Wong Hung v. Raymond Kin Sang Hung (2014) 17 HKCFAR 585. The core issue 17.Given the fact that the Husband had provided his answers to the Wife’s 1st Questionnaire and had in addition, by way of voluntary disclosure through correspondence, produced documents of the same class as now requested by the Wife in the terms of the Discovery Summons, I believe the core issue lies with the period or extent of discovery rather than the nature and discoverability of the class of documents in question. 18.On such core issue, Counsel Mr. Yim submitted that the Wife’s requests are unnecessary, unjustified or excessive under the circumstances of the present case or are not proportional to the disclosure exercise. There must have a limit over disclosure. In the absence of justification as to the probative value of those documents for the extended period presently sought, this might be a ‘fishing exercise’ by the Wife. This Court should also note from the case management perspective that not only further costs would have to be incurred for obtaining those documents for the extended period, there are also costs implications for analysing the same. Furthermore, there had never been any issue taken by the Wife that amongst those documents already disclosed by the Husband, say for instance the AFS since 2011, had raised any suspicion on the Wife which warrant an extension of the period of disclosure beyond what would normally be required of by the Form E. 19.Senior Counsel Miss Anita Yip, SC, in reply to the submission of ‘fishing exercise’, referred this Court to the case of Charman v. Charman [2006] 2 FLR 422 where Wilson LJ at paragraph 38 of the Judgment, citing the well known case of B v. B (supra) had said :
20.At paragraph 40 of the same Judgment, Wilson LJ referred to the case of Zakay v. Zakay [1998] 3 FCR 35 where Schofield CJ had said : “the documents requested for production in this case are narrowly confined to the single issue they are aimed to support. The documents are more than likely in the possession of the applicant and are readily identifiable. Of course, it is impossible for the petitioner to know the specific identity of individual documents. But the applicant is being asked a specific question and is being asked to produce the documents to prove his answers. That is not a fishing expedition in the sense of casting a line in the hope that something will be caught: the fish has been identified and the court is endeavouring to spear it.” 21.The settled principles governing specific discovery have been succinctly summarised by Hon Ng J in a recent decision of Jade’s Realm Ltd v. Director of Lands (HCA No.1509/2012) dated 9 January 2015 as follows :-
22.In my view, full and frank disclosure is an important role and also a continuing obligation of the parties with no exception in matrimonial cases. The rationale behind is to reveal all documents and information one party has or possess which is relevant whether in advancing his or his opponent’s case or destroy his own case (see Compagnie Financiere du Pacifique –v- Peruvian Guano Conpany (1882) 11 QBD 55). This is commonly called the ‘Peruvian Guano’ principle. 23.‘Relevance’ is to be determined by reference to the pleadings (see Re Estate of Ng Chan Wah [2003] HKEC 317). In the context of ancillary reliefs applications between spouses where there are no pleadings exchanged, I am entitled to consider the issue of relevance by reference to the disclosure of assets under the parties’ Form E or answers to questionnaires or affirmations. 24.As regards the ‘existence’ of a document, Deputy High Court Judge Queeny Au-Yeung (as she then was) in the case of Ngan In Leng v. Chu Yuet Wah [2013] 1 HKLRD 717 said :-
25.In the often cited case of B v. B (matrimonial proceedings : discovery) [1979] 1 All ER 801 where Dunn J summarised the law on discovery in ancillary reliefs application at page 811 said : “I will conclude the part of my judgment by summarising my conclusions as to law.
26.With the above principles in mind, I now proceed to consider the Wife’s application. Discussion and Analysis Audited Financial Statements (“AFS”) 27.The AFS of the company PB starting from its incorporation in 2008 had now been disclosed by the Husband (C: 217 to 286). Thus, the Wife no longer pursued paragraph 1(a) of her Discovery Summons insofar as the company PB is concerned. 28.As to the AFS of the companies UB and SW since their incorporation respectively in 2007 and 2008, the Husband’s contentions are that the Wife is not entitled to those audited reports since incorporation, which is 8 years ago for UB and 7 years ago for SW in addition to those already disclosed. He asserted that he had already produced the AFS of these 2 companies for 4 years, namely, the financial years ended March 2011, March 2012 and March 2014 which were attached as Exhibit “RA-8” to his Affirmation. The AFS for the financial year ended March 2013 had earlier been attached to his Form E filed. 29.Counsel Mr. Yim also submitted and queried the probative values of those pre-2011 AFS of UB and SW in relation to the issues in question. 30.In my view, the peculiar circumstances of the present case, namely, that a 13-year or so “extra marital” relationship of the Husband with the 2nd Respondent running in parallel with his marriage with the Wife calls for special consideration when the Court comes to determine financial reliefs. Given the undisputed fact that the Husband has all along been and still is maintaining “two families”, the Wife’s asserted case of possible diversion of family assets by the Husband provides justification for discovery, both in terms of specificity and scope, much wider than those that would ordinarily have been expected in other day-to-day ancillary reliefs cases. Senior Counsel Miss Yip, S.C., referred to the case of K v. K, unreported, FCMC No.6100 of 2006 where the learned Deputy Judge K.W. Wong (as he then was) had ordered extensive discovery against the Husband for a period well over 2 years from the divorce petition. It is noted that Miss Yip S.C., was acting for the Husband in the K v. K case. 31.Husband’s Counsel Mr. Yim sought to distinguish K v. K (supra) since the Wife in the present case had pleaded at paragraphs 9 (b) to (e) of her ‘Unreasonable Behaviour” petition and also in her Affirmation in reply to the Husband’s Affirmation in opposition filed in respect of her maintenance pending suit application (which yet to be heard), that she has had knowledge of the 13 years on-going relationship between the Husband and the 2nd Respondent. This is different from the facts in the K v. K (supra) case. 32.With respect, I do not agree with Mr. Yim. The issues in question relate to the Wife’s ancillary reliefs as opposed to the Husband’s marital conduct. The fact that the Wife was and is aware of the Husband’s relationship with 2nd Respondent for 13 years is, in my view, neither here nor there when determining whether more extensive disclosure at this stage should be granted. Knowledge of the Wife about the “extra marital” relationship in existence could not be equated with knowledge of the Husband’s financial means over the years, of which is a live issue for the Court to find and determine at the ancillary relief trial proper. What is important is that the Wife’s evidence that since around July 2001 after the Husband has had formed the said “extra marital” relationship, she was then kept in the dark by the Husband who had by that time redirected all his bank and credit card statements and tax returns to his office address was not controvert by the Husband anywhere in his evidence. She was then kept in the dark in terms of the Husband’s spending, savings and income over the years (see paragraphs 4 and 5 of her 5th Affirmation) (P8: 2397). 33.As submitted by Senior Counsel Miss Yip S.C., without such extensive discovery, both the Wife and the Court would have to accept whatever it is worth asserted by the Husband throughout these years whilst he was undisputedly maintaining “two families” through the use of income and resources which, according to the Wife’s case, might have formed part of the family assets. In the absence of full and comprehensive financial disclosure by the Husband over these years, the Court would be left in limbo when it comes to discharge its investigative role and function over those factors under Section 7 of the Matrimonial Proceedings and Property Ordinance, Cap.192 when determining ancillary reliefs. I entirely agree with Miss Yip S.C. I am satisfied that any hardship likely to be caused to the Wife without the extensive discovery of the finances of the Husband outweigh any possible prejudice to the Husband if disclosure is to be allowed. In any event, it is only the scope and extent of discovery rather than prejudice that the Husband is now contesting against disclosure. 34.The Husband’s other contention that AFS for 4 years of UB and SW had already been produced and there is a single joint expert (“SJE”) undergoing valuation of the 2 companies UB and SW is not accepted. In my view, the SJE’s valuation of the 2 companies merely provides the asset worth at present. It does not reflect the historic business turnover and the Husband’s finances throughout the years. It is only through comparison of historic AFS on a yearly basis that a full and comprehensive scenario as to the Husband’s finances could be explored, not to mention whether any diversion of family assets could be revealed. This is again a live issue to be determined at the ancillary relief trial proper. The AFS are particularly important since it is the Husband’s case that the 2 companies of UB and SW had been his main sources of financial income throughout these years for supporting himself and the ‘two families’. 35.For the above reasons, I am convinced that the Husband should provide the AFS of UB and SW as per paragraphs 1(b) and (c) of the Wife’s Discovery Summons. I will so order. Amex Card Statements 36.The Husband has so far disclosed statements from February 2014 to May 2014 in his Form E (P2: 357 to 374) and from August 2014 to March 2015 (P6 : 2046 to 2084). There is no reason why the intervening months which are missing should not be produced. Hence, I will so order the Husband to produce the statements for the month of June and July 2014. In any event, Husband’s Counsel Mr. Yim already confirmed those were inadvertently left over and would be provided. 37.As disclosure is a continuing obligation of the parties, I will also order the Husband to produce the Amex Card Statements from April 2015 onwards up to present. 38.The issue which remain to be resolved is since when should the Husband disclose his Amex Card Statements ? Relying upon K v. K (supra), the Wife is seeking disclosure since May 2011 which is 3 years prior to the Husband’s Form E dated 27 June 2014 (P2 : 246 to 379) on the footing that the statements not only relate to the needs of the Husband and the Wife, it is also indicative of the disputed issue whether the 2nd Respondent is financially dependent or not dependent on the Husband. 39.Counsel Mr. Yim for the Husband in his Skeleton Submissions referred this Court to the normal period of disclosure that is required of in Form E for credit card statements is 3 months only. The Wife was unable to justify why historical credit card statements beyond 3 months is necessary. The Wife’s contention of the statements produced so far being redacted was also not properly understood by the Husband since this had never been the case. 40.Whilst credit card statements may reveal the historic style of spending of the Husband, the Wife as well as the 2nd Respondent both of whom had been provided with a supplementary card by the Husband, and a proper read-through may assist in determining the respective parties’ living style and standard, I believe those already disclosed credit card statements by the Husband which included the Wife’s and 2nd Respondent’s spending had readily achieved such aim and objective. Unless there are special and extraordinary circumstances of which I cannot find any from the Wife, I fail to see how much more assistance for the additional disclosure of, say, few more years back to May 2011 would assist the Wife. Hence, I agree with Counsel Mr. Yim that the Husband had made sufficient disclosure of his Amex Card Statements. I refuse this item of claim of the Wife in the Discovery Summons. Securities Accounts Statements 41.The Wife is seeking disclosure since May 2011 which is 3 years from separation. The Husband so far disclosed such statements from April 2014 to September 2014. In his Answer, the Husband made reference to those bank statements of one of his savings account, namely, the “628” account with the Bank of China (of which disclosure was also sought by the Wife under item (g) of the Discovery Summons) which is the settlement account for securities investment. Accordingly, it is not necessary to disclose the Securities Accounts Statements. The bank statements of this “628” account covers the period from 26 July 2013 to 31 October 2014. 42.I do not accept the Husband’s argument. The fact that the “628” settlement account shows moneys in and out from stock investments does not tell the complete picture. It is only when there are buy and sell transactions then entries would appear in the bank statements. The bank statements by itself would not show the quantity and value of stocks from time to time kept in the Securities Account which remain to be sold. Moreover, Securities Account Statements would show the frequencies of buy and sell which is indicative of the Husband’s pattern of investment of which bank statements would not show. 43.As I have pointed out in one of the earlier hearings, it is noted by this Court that the Husband’s membership status as an investor with the Bank of China is “Diamond Star” which is the top and highest tier (P8 : 2225) within the 4 types of membership of :-
44.It is also noted from the Securities Account Statement dated 30 September 2014 that the accumulated transaction amount updated since last review was up to HK$78,231,840 (P8 : 2196). In my view, this HK$78 million or so is a huge amount no matter when such amount starts to build up when comparing with the asserted income and finances of the Husband. Looking at the transactions turnover objectively as recorded in the already disclosed Securities Account Statements, it is not difficult to see substantial sums of moneys were being invested from time to time. 45.Given the volumes and values of the transactions of trading, I agree with the Wife that disclosure of such Securities Account Statements from May 2011 is totally justifiable and also assist the Court to accurately determine the financial resources of the Husband. I will allow such item of disclosure in the Discovery Summons. Bank Accounts Statements 46.The Wife is seeking disclosure of bank statements of 3 accounts of the Husband (2 savings accounts abbreviated “538” and “628” accounts, 1 current account abbreviated “986” account) with the Bank of China. 47.The Wife’s stance is simply that the 3 accounts are highly inter-linked. The “538” account appears to be the main account for receiving bonus and dividends from the Husband’s companies, that is, UB or SW over the years (P2 : 525 to 526). The “628” account apart from being used as the settlement account for securities investment, might also had been used for receiving bonus and dividends (P2 : 525 to 526). The “986” account is the current account for making cheque payments. 48.Same as in those earlier requests, the Wife is seeking disclosure of bank statements from May 2011 onwards save and except for those months where statements had already been produced. Such request is to establish the Husband’s historical financial incomes and outgoing provisions during the so-called ‘tri-partes’ relationship. 49.The Husband referred to the requirement of 12 months bank statements disclosure specifically set out in the Form E notwithstanding which he had, in addition, produced statements from November 2012 to May 2015 for the “538” account (P8 : 2229 to 2235); statements from May 2014 to October 2014 for the “628” account which was closed in October 2014 (P8 : 2192 to 2193); and answers for various cheque payments and withdrawals with copies of cheques from August 2013 to February 2015 for the “986” checking account (P7 : 1909 to 1912 and P8 : 2240 to 2272). Such disclosure already exceeded that was normally required of in the Form E. 50.The Husband further acknowledged his obligation to provide further updated statements for 2 of the remaining “538” and “628” ongoing bank accounts. 51.Husband’s Counsel Mr. Yim in his skeleton submissions made reference to the observation of Nicholas Mostyn QC that ‘copy bank statements are cheap to obtain but they are expensive to analyse’. Reference was also made to the words of Ribeiro PJ in LKW v. DD [2010] 13 HKCFAR 537 that the court should avoid ‘any attempt to engage in costly and often futile retrospective investigations of the failed marriage which tend to deplete the parties’ (and the court’s) resources and to increase antagonism and discourage settlement”. 52.In my view, the ultimate consideration is whether disclosure of the historic bank statements back to May 2011 is necessary and fair so as to ensure justice is done in the case with minimal prejudice (if any) or inconvenience to the party against whom discovery is sought, namely, the Husband. I am satisfied that the historic bank statements are relevant and necessary for those reasons which are set forth above on the AFS. There is no contention as to existence of those historic bank statements. The Husband’s contentions are cost-related which contention should not be giving way to justice and fairness to parties in litigation. 53.I agree with Senior Counsel Miss Yip SC, that the 3 bank accounts are highly inter-linked. Moreover, I also believe disclosure of such historic statements would assist the Court at the ancillary reliefs trial proper in resolving the issue as to whether there were diversion of assets by the Husband. 54.I will allow such item of disclosure by the Wife in the Discovery Summons. BOC Card Statements 55.The Wife challenged the Husband for not disclosing this Bank of China Visa Infinite credit card in his Form E dated 27 June 2014. Upon being asked by the Wife, the Husband in his Answers then attached the monthly statements for this credit card from May 2014 to March 2015. 56.The Husband’s explanation is that this Visa Infinite credit card was only issued in April 2014. The statements since May 2014 had been produced under the Husband’s Answer (P7 : 1913). 57.Provided that if the Husband is able to produce written confirmation from Bank of China as to the date of issuance of this Visa Infinite credit card, I find the Husband had fulfilled his obligation of disclosure on this item. In the event that no such proof is forthcoming, I find the Wife’s request fails for the same reasons which I have set forth above for the Amex Card Statements, that is to say, I do not see any additional disclosure of historic credit card statements would add assistance to the Wife’s case against the Husband. 58.Accordingly, I refuse this item of claim of the Wife in the Discovery Summons. Costs 59.On the question of costs, I fail to see any reason why costs should not follow the event. Accordingly, I order that the Wife’s costs of this application be paid by the Husband, to be taxed if not agreed. 60.I also grant Certificate for Senior Counsel. 61.This is a costs Order nisi which will be made absolute if no application to vary it is made within 14 days. Orders 62.For the above reasons, I now grant the following Orders :-
Miss Anita Yip, S.C. leading Miss Christina Tseng, instructed by Messrs. Cheng & Co., Solicitors for the Petitioner Mr. Eugene Yim instructed by Messrs. Hastings, Solicitors for the 1st Respondent | ||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 6082/2014