Ysc v. Ywk

HCMP 3005/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3005 OF 2015

(ON AN INTENDED APPEAL FROM FCMC 2247 of 2001)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

Introduction

1.By a judgment handed down on 20 July 2015 (“the Main Judgment”), His Honour Judge CK Chan disposed of the parties’ respective claim for ancillary relief by ordering :

“(1) The wife shall deliver all title deeds and vacant possession of the former matrimonial home (which shall be free of any encumbrances or interest of the wife) to the husband within 2 months from the date of this judgment.

(2) The wife shall transfer all her rights and title in the 3 shops at 東莞樟木頭 to the husband at nil consideration within 2 months from the date of this judgment at the sole costs of the husband.

(3) The wife shall pay a lump sum of HK$3,200,000.00 to the husband within 2 months from the date of this judgment.

(4) The husband’s retention of the above properties and the lump sum payment shall be subject to the first charge of the Director of Legal Aid.

(5) The husband shall transfer all his title and interest in WF Industrial Building Units 25xx and 22xx to the wife at nil consideration within 2 months from the date of this judgment at the sole costs of the wife.

(6) Subject to the above, each party is allowed to retain whatever other properties that are currently held under his or her name.

(7) The nominal maintenance order in favour of the wife to be cancelled forthwith.”

2.Essentially, after resolving all the factual disputes and having regard to the various factors in section 7 of the Matrimonial Proceedings and Property Ordinance in light of the case law and all the relevant circumstances, the Judge ruled that agreed family assets (HK$15,790,000.00) shall be distributed between the husband and the wife in the ratio of 45% and 55%.  He then made the above order to give effect to his ruling on distribution of the agreed family assets.

3.By another judgment dated 29 October 2015 (“the Leave Judgment”), the learned Judge refused the wife’s application for leave to appeal against the Main Judgment and stay of the Main Judgment pending appeal.

4.The wife now renews her two applications before the Court of Appeal.  We first deal with the application for leave to appeal.  If we refuse leave, then the stay application must also fail.

5.The background facts have been helpfully set out by the Judge in [5] to [21] of the Main Judgment and summarized by him in [2] to [9] of the Leave Judgment.  We shall not repeat them here.

6.The wife raised five grounds of appeal.  We will consider them in turn.

Ground 1

7.Ground 1 concerned two complaints.

8.First, the wife complained that the Judge erred in his evaluation of the Wing Kuen Factory in [32] of the Main Judgment that it was substantially more than RMB2.3 million as contended by the wife but not as high as HK$10 million as contended by the husband.

9.Mr Chung, counsel for the wife argued that the Judge ought to have adopted an evidence based approached, and based the valuation on much more comprehensive and quantitative evidence or alternatively made no finding at all.

10.As rightly pointed out by the Judge in [20] of the Leave Judgment, it had never been the wife’s case that an assessor or expert should be appointed at trial to evaluate the Factory as it would be a futile exercise when the Factory was gifted to the wife by the husband in 1997 and was later sold by her in 2003. On both parties’ case, the Factory must worth something.  The only dispute lied in its value.  That being the case, it would be wholly unrealistic to ask the Judge not to make a finding.  The Judge was doing the best that he could in light of the evidence before him.  He was entitled to do so.

11.The second complaint raised by Ground 1 concerned the Judge’s finding that the family business had at least given the seed moneys in the investment of the two taxis ([37] of the Main Judgment) and that the profits generated by and the proceeds of sale of the family business had to be the seed moneys for the assets acquired by wife as identified ([39] of the Main Judgment).

12.In making the inferential findings as he did, the Judge had taken into account all the relevant evidence and based on the evidence.  Mr Chung has failed to satisfy us that his findings were plainly wrong.

Ground 2

13.In brief, Ground 2 complained that the Judge erred in not giving sufficient consideration to the prolonged desertion of the family by the husband and the delay on the husband’s part in applying for ancillary relief.

14.The Judge dealt with Ground 2 in [23] to [25] of the Leave Judgment.  We agree with him entirely.  For the reasons he gave, we can see no substance in Ground 2.

Ground 3

15.Ground 3 complained that the Judge had neglected or failed to consider the husband’s testimony that he was willing to give a half share of the maintenance and education expenses of the children.

16.The husband’s evidence must be properly understood in context.  As pointed out by the Judge, it is his evidence that the purpose of him leaving the Factory to the wife as a gift was to provide for her and the children’s maintenance.  He also clarified in re-examination that he was willing to share half of the education expenses which had already been covered by the assets he left to the wife in 1997.

17.In any event, the Judge in [62] of the Main Judgment had taken into account the wife’s substantial contribution to the family by supporting the children after the husband’s departure in the final ancillary relief order.  The Judge cannot be flawed as the wife now contended in Ground 3.

Grounds 4 & 5

18.Grounds 4 & 5 can be dealt with together.

19.The complaint in gist is that the Judge had failed to consider the fact that the wife had contributed 73.72% of the total mortgage repayments in relation to the former matrimonial home and Wah Fat Property; and her contribution of 71.56% of the mortgage repayment of the WF 22xx Property.

20.However, the Judge in [62] of the Main Judgment stated that he had taken into account the wife’s substantial contribution to the family.  That must have included the mortgage repayments after the husband’s departure.

21.We do not agree that the Judge had erred as complained.

Conclusion

22.In our view, the Judge has made no error in his findings and in his exercise of discretion in making the ancillary relief order as he did.  The wife has failed to satisfy us that her appeal has any reasonable prospect of success.  We refuse to give her leave to appeal.  We also dismiss her stay application.

23.Costs should follow the event.  We order the wife to pay the husband costs, summarily assessed at HK$85,000.00.  The husband’s own costs are to be taxed in accordance with the legal aid regulations.

24.Further, we are of the view that the application of the wife is totally without merit and we make an order pursuant to Order 59, rule 2A(8) of the Rules of High Court that no party may request this determination to be reconsidered at an oral hearing inter partes.

Mr Hylas Chung and Mr Ubaid-Ur Rehman, instructed by Gary Lau and Partners, for the applicant (petitioner)

Mr Chase Pun, instructed by Tse, Yuen, Ting, Wong, for the respondent (respondent)