Cl v. Lwp and Another
Read the full judgment text of FCMC 16222/2012 on BabelCite. This Family Court judgment was delivered on 12 December 2016 before Deputy District Judge G. Own.
Matrimonial Causes – Leave to Appeal – Section 17 Application – Ancillary Reliefs – Property Dispositions – Credibility of Evidence – Financial Disclosure – District Court Ordinance s.63A – Matrimonial Proceedings and Property Ordinance s.17 – Wife failed to show reasonable prospect of success on grounds regarding 406E property transfer, Luen Wai Property transfer intention, insurance policy disclosure, bank statements and new evidence – Leave refused – Summonses dismissed – No order as to costs
Legal issues: Leave to Appeal Application
Outcome: Leave to appeal refused; Summonses dismissed.
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FCMC 16222 /2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 16222 OF 2012 ----------------------------
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------------------------- D E C I S I O N ------------------------- Foreword 1.On 12 February 2016, this Court after a 6-day trial handed down its Judgment on the Petitioner’s (Wife’s) Section 17 Application and her Ancillary Reliefs claim for herself and the child of the family (“the Judgment”). 2.As stated in the Judgment, there were 4 dispositions listed in the Section 17 Notice of Application which the Wife sought to set aside, referred as dispositions (a), (b), (c) and (d) at paragraph 7 of the Reasons for the Judgment. On the 1st day of trial, at the suggestion of the Husband’s Counsel Mr. Edward T.C. Chan made solely for saving costs and time without admission of the Wife’s case, of which the Wife’s Counsel Miss Eunice Yung agreed, the Husband agreed to have the value of the property in disposition (a) which had been agreed at HK$4.5 million added into the pool of family assets. The Husband also agreed to the sum of HK$500,000 in disposition (d) added into the pool of family assets. Accordingly, the Court would then be asked to deal with the Section 17 application as to the setting aside of dispositions (b) and (c) only. 3.Having said, in the afternoon of the 1st day of trial, Counsel for the Wife confirmed acceptance of the Husband’s position and leave was granted to amend the Section 17 Notice to withdraw paragraphs 1.1 and 1.4 therein which respectively referred to dispositions (a) and (d). After the amendment, the Section 17 Application related to the setting aside of dispositions (b) and (c) only. 4.Moreover, Counsel for both parties after discussion agreed upon the order of speeches as follows, the 1st Intervener, 2nd Intervener, Respondent and lastly the Petitioner to give evidence. 5.Disposition (b) related to the transfer of the so-called “Luen Wai Property” to the 2nd Intervener. Disposition (c) related to a total sum of HK$280,000 consisted of 3 separate transfers also made to the 2nd Intervener. There is no issue that the 2nd Intervener is the lawful and natural daughter of the Husband out of his 1st marriage, where the ex-wife passed away around 2001. 6.Again, as stated in paragraph 6 of the Reasons for the Judgment, the Wife was represented by 6 different law firms since commencement of her divorce proceedings. On the 5th day of the trial, the Wife went unrepresented. Since then the Wife had been using Chinese for her different applications filed subsequent to the trial both before and after (my emphasis) the Judgment was handed down (which I will further deal with below) including the present application for leave to appeal. The Judgment was handed down in English (with corrigendum). It may be easier for this Decision also to be in English. I grant leave for the Wife to obtain a certified translation of this Decision if she so requires upon payment of the prescribed charges. The 8 Summonses issued Pre and Post Judgment 7.After conclusion of the trial but before the Judgment was handed down, the Wife acting in person filed 5 separate Summonses on 17/11/2015, 23/11/2015, 7/12/2015, 11/12/2015 and 16/1/2016 (“pre-Judgment Summonses”) seeking reliefs as follows :-
8.After the Judgment was handed down on 12/2/2016, the Wife further took out 3 Summonses on 16/2/2016, 25/2/2016 and 7/3/2016 (“post-Judgment Summonses”) seeking reliefs as follows :-
9.I will identify each of this chain of 8 Summonses (both pre-Judgment and post-Judgment) by reference to their dates if circumstances so arise in this Decision. The hearings of the 8 Summonses 10.The 17/11/2015 Summons was heard on 4/1/2016 which was then adjourned sine die pending the outcome of the Judgment (which had yet to be handed down at that time). 11.The 23/11/2015 Summons was heard on 18/1/2016. Despite the Judgment had yet to be handed down, the Husband for saving costs and time at the hearing agreed to the Wife’s downward variation of the maintenance order (as per Order of Deputy Judge Yim dated 8/1/2014) from HK$15,000 a month to HK$3,700 a month, commencing 20 January 2016. At the same hearing, the Wife agreed to paragraph (ii) of her Summons (that is, seeking HK$4,000 a month to be paid to the child) be adjourned pending the Judgment on ancillary reliefs. Further, leave was granted to the Wife to withdraw her 7/12/2015 and 11/12/2015 Summonses. 12.The 16/1/2016 Summons was heard on 14/3/2016 when it was ordered that this Summons, together with the 3 post-Judgment Summonses namely, issued on 16/2/2016 (seeking leave to appeal the Judgment), issued on 25/2/2016 (seeking leave to appeal on costs of the Section 17 Application) and issued on 7/3/2016 (again seeking leave to appeal plus financial reliefs claim for HK$1,080,000 to herself and HK$960,000 to the child to be paid by the Husband) all these Summonses to be consolidated for hearing with half day reserved. All the hearings separately scheduled for those 3 post-Judgment Summonses were then vacated. 13.Thus, there remain 4 Summonses at today’s hearing out of which only the 3 post-Judgment Summonses of 16/2/2016, 25/2/2016 and 7/3/2016 are of relevance for the Wife’s application for leave to appeal. 14.As can be seen above, the 16/1/2016 Summons (which has been adjourned sine die) was in fact a replicate of the 17/11/2015 Summons seeking an Order to vary the Land Registry record of owners in respect of the 406E Property under the name of the 1st Intervener, before and after the Judgment. The statutory provisions on leave to appeal 15.The jurisdiction to grant leave to appeal was contained in Section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard. It is trite law that the duty of showing reasonable prospect of success falls upon the applicant for leave to appeal, namely, the Wife in the present case. 16.The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he or she has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Hon Fok JA at paragraph 9 of that Judgment). Grounds of Appeal 17.For each of the 3 post-Judgment Summonses, there was filed the supporting Affirmations which, unfortunately but not surprisingly for those unrepresented litigant, failed to set out clearly what are the grounds of the intended appeal. 18.Nonetheless, the Wife apparently had sought some sort of “legal advice and assistance” and came up with a 37-page Written Submissions in Chinese containing 80 paragraphs filed on 7 June 2016 (along with some documents attached and intended to be produced at this stage) setting out 7 Grounds of Appeal as follows, which I now recite them in Chinese :-
The Court’s Views 19.First and foremost and as I stated above, it was on the 5th day of the trial that the Wife chose to act unrepresented. Throughout the trial, she was all along represented by Counsel Miss Eunice Yung including at the stage of her evidence in chief which started and completed in the afternoon of the 3rd day of trial (that is, 4 February 2015). 20.I will now deal with each of the Grounds of Appeal and cross referenced to those numbered paragraphs in the 37-page Written Submissions only and in so far as it is necessary and relevant to the Grounds of Appeal. No reference would be made to those paragraphs which are bare assertion of the Wife. 21.Ground (一) refers to this Court erred in not considering the impact of the 406E property transfer on the credibility of the Husband’s evidence. 22.At paragraphs 5 to 14 of the Wife’s Written Submissions, she referred to the Husband’s oral testimonies in Court and his written explanation in his Form Es are inconsistent as to the purchase and subsequent disposal of the 406E property. The Husband’s credentials would become an issue if this Court was minded to consider those discrepancies. 23.According to the records, the Husband’s suggestion of the agreed market value of the 406E property to be computed as part of the family assets was unreservedly and unconditionally accepted by Wife’s Counsel Miss Eunice Yung prior to the commencement of the 1st day of trial. Upon application and with the leave of the Court, her Section 17 Notice was amended to withdraw the setting aside of the 406E property transfer before the trial started. 24.The whole regime and rationale of the Section 17 Application is for the Court to set aside disposals made by a spouse with the intention to defeat the other spouse’s claim for ancillary reliefs. If successful, the transaction in question would be set aside to the extent and practical effect, insofar as the parties to the marriage are concerned, that the value under the disputed transfer would be ‘added back’ to the pool of family assets to avoid any depletion thereof. By so doing, the spouse who took out the Section 17 Application and usually would be the same party seeking ancillary reliefs (as in the present case) would not be prejudiced by those transfers that were found by the Court to have been done with the intent to defeat his or her ancillary reliefs. 25.Having said, it is permissible for the spouse who had made the transfer to simply ‘yield up’ and agreed to the value of the transfer in question to be counted into the pool of family assets as if no disposal had taken place. The other spouse faced with such a scenario is not bound to accept such arrangement unreservedly and could, out of necessity or strategy, reserving his or her rights to cross examine on the motive and intention behind the disputed transfer which had gone undisputed by such arrangement. However, this had not been done by Counsel Miss Yung for the Wife. 26.With the Section 17 Notice (amended before the trial commenced) no longer referred to the setting aside of the 406E property, the Wife could not go back on her position now (my emphasis) and raise as a ground of appeal that this Court had not considered the impact of the 406E property transfer. More importantly, without any reservation of rights by Counsel Miss Yung to cross examine on the motive and intention behind the 406E property transfer whilst accepting the said “add-back” arrangement, there is no basis for the Wife to now complain that the Court had not considered the motive and intention behind the 406E property transfer and its impact on the Husband’s credentials. 27.The Wife with the benefit of full legal advice and assistance by lawyers, including Counsel, on her Section 17 Application, she could not go through the ‘back door’ now (my emphasis) by arguing retrospectively upon something which could have been done but somehow had not been done by her then lawyers. 28.In my decision, there is no reasonable prospect of success on Ground (一) . 29.Ground (二) referred to there being insufficient evidence for the Court to make the finding that the transfer of the Luen Wai Property to the 2nd Intervener by the Husband was without any intention to defeat the Wife’s ancillary reliefs. 30.The reasons for the Husband buying the Luen Wai Property in 2007 but not transferring it to the 2nd Intervener until May 2012 were well set out in paragraphs 23 and 24 of the Reasons for the Judgment. At paragraph 16 of the Wife’s Written Submissions, she tried to paint a picture that since there was no evidence to show the Husband had ever given any gift to the 2nd Intervener between 2001 and 2007, it remains suspicious that the Husband had ever promised his late 1st Wife in 2001 to take good care of the 2nd Intervener, there is no evidence to show any fatherly love when he decided to transfer the Luen Wai Property in May 2012. In my view, such postulation is simply untenable. 31.The Court is always entitled to consider parties’ evidence including promises and fatherly love to children and, in appropriate cases, may also need to take into account the presumption of advancement in equity between parents and child. Having said, paragraph 16 of the Wife’s Written Submissions is misconceived. 32.Paragraph 17 further asserted that even though the Husband in 2012 knew her daughter the 2nd Intervener was going to get married in 2013, it does not necessarily mean the Husband did not have the intention to defeat her ancillary reliefs when making the transfer. It is also submitted that whether the transfer was out of fatherly love or for keeping promise is not something which the Court needs to consider. In my view, such contention must fail for the reasons set out in paragraph 31 above. 33.Paragraph 19 seems to assert that since the Court erred in its finding on the reason for purchasing the Luen Wai Property and the incident of “break open” of 2nd Intervener’s bedroom door, it is unclear in the Reasons for the Judgment whether such erroneous finding had affected the Court’s decision on her Section 17 Application. The Wife relied upon her Ground (三) to support her alleged erroneous findings of the Court. 34.The reasons for the purchase of the Luen Wai Property have been set out in paragraphs 29 to 34 of the Reasons for the Judgment. It was the Husband’s case the “break open” of 2nd Intervener’s room door by the Wife triggered the purchase of the Luen Wai Property. His evidence over the “break open” event was accepted as credible. The Wife’s purported explanation, if not an excuse, of breaking open the bedroom door of the 2nd Intervener was found to be not credible. Reasons for such finding have been set out in paragraphs 29 to 34 of the Reasons for the Judgment. Upon such findings the Court found that the presumption against the Husband under Section 17 was successfully rebutted. 35.Paragraph 23 referred to the Court did not explain why it would take into account the “break open” event happened 5 years before the transfer was made when come to determine the intention of the transfer 5 years later. The Court had not further considered any events likely to have happened during those 5 years which might have had an impact on the May 2012 transfer. 36.The reasons have been clearly stated in paragraph 29 of the Reasons for the Judgment which I do not intend to repeat here. The Wife’s assertion of there being no explanation given is misconceived. 37.Paragraph 24 challenged the Court’s findings at paragraphs 76 to 77 of the Reasons for the Judgment. The Wife relied upon her Ground (三) as to why she said the findings were wrong. I will deal with this issue when Ground (三) came to be considered below. However, suffice to say is that paragraphs 76 and 77 referred to the process of identification of assets by the Court after the Luen Wai Property issue in the Section 17 Application had been decided against the Wife. 38.Over and again the Wife at paragraph 25 continued to challenge the Court’s findings of the circumstances leading to the purchase of the Luen Wai Property in 2007 was wrong and might have influenced the Court’s decision on her Section 17 Application. At paragraph 26 she submitted that the Court had erroneously given insufficient consideration to the documentary records and the Husband’s credentials and also erroneously satisfied with the evidence and reasons given by the Husband. In my view, these paragraphs were mere repetition of what had been said earlier and does not advance her case for leave to appeal any further. 39.Paragraph 29 referred to the Husband’s explanation being inconsistent with the documentary records and the Court had not given sufficient consideration or had dealt with it in the Reasons for the Judgment. In paragraph 36 of the Reasons for the Judgment, the Court had stated explicitly that the peculiar facts of this case and the circumstances surrounding the disposal are material and important for considering the Section 17 Application. Further in paragraph 37 of the Reasons for the Judgment, the Court referred to other findings which are of relevance and importance before arriving at its conclusion that the statutory presumption under Section 17 was successfully rebutted. As also stated in paragraph 37 of the Reasons for the Judgment, the transfer took place in May 2012 and it was the Wife who petitioned for divorce 6 months later (my emphasis) on 1 November 2012. There is no evidence that the Husband could foresee the Wife was going to divorce with him 6 months later (my emphasis) and then he transferred away his interests in the Luen Wai Property 6 months before the Wife filed her petition. Yet the Wife’s Section 17 Notice was issued by one of her previous lawyers on 5 February 2014 (see paragraph 8 of the Reasons for the Judgment), that is some 16 months after her divorce petition. She was legally represented when she commenced the divorce proceedings. The Wife’s challenge completely falls apart. 40.Paragraphs 30 to 32 referred to the use of “sale and purchase” conveyance for the transfer does not fit in the Husband’s evidence in Court that the Luen Wai Property was returned to the 2nd Intervener for nil consideration. 41.Paragraph 33 referred to the Husband’s explanation of the “sale and purchase” conveyance was suspicious and that the Court should have found against the Husband on the intention issue. 42.Paragraph 35 referred to the Husband’s instructions to his lawyers for handling the Luen Wai Property transfer could reflect the intention guarded against by Section 17. 43.Paragraph 36 referred to the solemnity of the instrument of transfer and the Husband’s choice of not adducing evidence on his instructions given to his lawyers for handling the Luen Wai Property transfer. 44.Paragraph 37 referred to the Court, in the absence of evidence, to have accepted Husband’s Counsel lightly that the practice of “sale and purchase” conveyance was a commonly used method. At the very least, the Wife submitted that the Court should have summoned the lawyer to give testimony and see if there was any inducement by the lawyer on the way to prepare the instrument of transfer for the Husband. 45.Paragraph 38 referred to the Court, for not having asked and investigated the Husband’s lawyers and then accepted the Husband’s case, passed over a wrong message to members of the public that it is normal to use false instruments of transfer and would still be accepted by the Court. 46.In my view, it is unfortunate that the author of the Wife’s Written Submissions, if not the Wife herself, apart from not knowing the rationale and regime of the Section 17 Application (see paragraph 24 of this Decision above), also misapprehended the practical facet of the Section 17 Application. 47.Quite often the subject matter of a Section 17 Application, whether it is landed properties or shares or options, for it to be transferred must have complied with requisite procedure and formalities such as evidence in writing so to speak. Examples would be for land transfer using deeds of instrument followed by registration of the title; shares transfer using Bought and Sold Note followed by issuance of shares certificates and making entries in the company’s books and records. Section 17 Application is to explore and uncover any suspicious motive and intent behind those transfers reflected by documentary records. Thus the statutory provisions provide a 3-year rebuttable presumption on intent to uplift or overturn transactions notwithstanding that the transfers were evidenced in writing. 48.When deciding upon a Section 17 Application, the Court is engaged in a fact finding exercise by considering all the relevant evidence before it and the surrounding circumstances leading up to the transaction in dispute. The Court is not bound to accept those written instruments or deeds forming the disputed transfer at their face value and indeed this should not be the case for obvious reasons; for otherwise, all Section 17 Applications would be rendered futile. 49.Having said, I find the Wife’s contention that the Court does not accept or consider or attach sufficient weight to the face value of the instruments of transfer or documentary evidence wholly untenable, if not misconceived. I would also add that the unscrupulous assertion that the Court passed over a wrong message to members of the public that it is normal to use “false” instruments of transfer and would still be accepted by the Court is discourteous if not a contempt. 50.Paragraph 40 seems to assert that since the Husband had not explained or accounted for the discrepancies between his oral testimonies and documentary records as to the transfer of the Luen Wai Property, the Court should not simply accepted the Husband’s oral testimonies without any explanation of why the Court believed in him. Such contention is completely misconceived. First of all, it is trite law for one party to discredit the other party’s credentials through cross examination. Counsel for the Wife had had the time and chance to do so. Cross examination of the Husband by the Wife’s Counsel Miss Yung started from 11:56:40 and ended at 3:13:21 (with lunch break in between) on 4 February 2015. As the Husband credentials had not been discredited through her Counsel’s cross examination, the Court after consideration and assessment is entitled to believe in the Husband’s uncontroverted evidence. It is not open for the Wife (or whoever handling the drafting of this Written Submissions) to mount as a ground of appeal by turning around to say the Husband failed in his explanation on discrepancies (if there is any) and therefore his evidence should not be accepted as credible. Secondly, the Court’s findings of fact through assessment of witness’s credibility are not appealable. 51.Paragraph 41 referred to the Court not having considered the circumstances as at May 2012 when the transfer was made. This is wrong. Full consideration had been given and was set out at paragraphs 35 to 37 of the Reasons for the Judgment. 52.Paragraph 42 referred to the Husband not stating in his affirmations or testimonies that he had ever told the Wife about his intention to transfer the Luen Wai Property to the 2nd Intervener. The Husband had not informed the Court either as to when he had decided to transfer the Luen Wai Property. In my view, this is not a ground of appeal at all. Given the fact that the Husband’s case that the Wife had broken open the bedroom door of 2nd Intervener’s room was accepted by the Court as credible, the Husband did not tell the Wife before or even after the transfer of the Luen Wai Property to the 2nd Intervener was not something unexpected. 53.Over and again, paragraph 43 unscrupulously referred to the Husband failed to adduce any evidence that at the material time he had revealed or discussed with anybody about his intended transfer to the 2nd Intervener. Such submission, as I see it, has no relevance whatsoever as to any grounds of the intended appeal. 54.Paragraph 44 again is completely misconceived. The Wife now submitted that the event of the Husband strangling her neck (义頸事件) in March 2012 and her changing the door lock at home (呈請人換鎖) in August 2012 could suggest that her relationship with the Husband was tense around March 2012. However, the Wife apparently had forgotten that in her own evidence in chief (my emphasis) on the 1st day of trial, she testified that she was given full control of all finances by the Husband between April and August 2012. She was allowed by the Husband to keep all rental incomes. She was even given by the Husband his bank cards to withdraw moneys which made her really shocked, in her own words in Court “受寵若驚” (see paragraph 63 of the Reasons for the Judgment) whereas the Husband case was that the Wife had stolen his bank cards. She believed probably because the Husband appreciated her forgiveness of not reporting the strangling neck event to the police. Her own evidence was that she was still on good terms with the Husband around the time of the transfer in May 2012. 55.Apparently and astute enough, the Wife is now making a shift and yield up to the Husband’s evidence being credible in order to portray the transfer was made with intent to defeat her ancillary rights because of their tense relationship at the time. In my view, since the Husband’s evidence was traversed by the Wife at trial who had also presented her own evidence in rebuttal but failed at the end, she could not at this stage turned around to take on board the Husband’s evidence as her own case in order to mount a ground of appeal. 56.For the above reasons, I find there is no reasonable prospect of success on Ground (二) . 57.Ground (三) referred to the Court erred in excluding the Luen Wai Property from the pool of family assets. 58.Paragraph 47 referred to 3 errors in support of such ground of appeal; firstly, that the Husband should be entitled to his share under the principles of Resulting Trust; secondly, the conduct of the Husband was not supportive of the transfer being a gift; and thirdly, the source of funds for purchasing the Luen Wai Property came from matrimonial assets. 59.At trial, no issue had ever been taken by Counsel for the Wife that the source of funds for purchasing the Luen Wai Property was part of the matrimonial assets nor was there any issue raised as to the Husband’s capacity whilst he was holding the Luen Wai Property jointly with the 2nd Intervener despite the fact that affirmations have already been filed by the Husband and the 2nd Intervener well in advance of the trial setting out their respective cases. Apparently the Wife, probably with her 7th round of “legal advice and assistance” behind the scene (see paragraphs 6 and 18 of this Decision), is now revisiting those matters which were unchallenged by her lawyers at trial but attempted to raise them now as issues at the present stage of an appeal. In my view, this is untenable for reason of finality of litigation. The Wife could not have the ‘second bite of the cherry’ so to speak. 60.I find there is no reasonable prospect of success on Ground (三) . 61.Ground (四) referred to the Court arrived at a wrong decision on the outcome of the ancillary reliefs since the decision was based upon an “error” it had made over the transfer of the 406E property. Reference was made to paragraph 103 of the Reasons for the Judgment which required the Wife and the child of the family to yield up possession of the 406E property to the 1st Intervener. 62.The Wife had once attempted, but subsequently with full legal advice and before trial, decided to withdraw the setting aside of the transfer of the 406E property by the Husband to the 1st Intervener. Thus the 1st Intervener was and remained the legal and beneficial owner of the 406E property. On the evidence, the Wife and the child of the family were residing in this 406E Property. Given the Wife’s withdrawal of this 406E Property from her Section 17 Application, the Court when deciding ancillary reliefs and taking into account those factors under Section 7 of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”), would also have to consider the question of accommodation. The Wife is unable to say what error of law was there for the Court to find that she and the child should not continue to ‘sit in’ and remain as occupants of the 406E property where the legal and beneficial owner is not the Husband, but the 1st Intervener who had not consented to her continuously staying in. Nonetheless, the Court in discharge of its duty to consider ancillary reliefs had already catered for the accommodation needs of the Wife and the child under paragraphs 104 and 105 of the Reasons for the Judgment. 63.No matter how the Wife was dissatisfied with having to move out from the 406E property, this could not be disguised as a ground for seeking leave to appeal. 64.I find there is no reasonable prospect of success on Ground (四) . 65.Ground (五) referred to the Court did not follow up with the Husband’s non disclosure of his interests in an insurance policy disclosed by the 2nd Intervener at trial. The Wife also referred to the Court did not include the benefits of such policy into the pool of family assets. 66.According to the agreed order of speech, the 2nd Intervener evidence came before the Husband. Such alleged non disclosure could have, but had not been, raised as an issue by the Wife’s Counsel in her cross examination of the Husband. The Wife could not go through the back door now and put up as a ground of appeal that the Court had not given consideration to an “issue” which had not, but probably might have, been raised as an issue by her own Counsel at the trial. 67.I find there is no reasonable prospect of success on Ground (五) . 68.Ground (六) referred to the Husband did not fully disclose all his bank statements for the Court’s consideration. 69.If a party did not fully disclose his or her financial statements, the other party is entitled to seek discovery through questionnaires and requests, and if no satisfactory result is achieved, submission could readily be made to the Court for drawing adverse inference upon the resistant disclosure. This could not be raised as a ground of appeal. This is rather a matter for submission. 70.In any event, there is a difference between complete non disclosure and incomplete or insufficient disclosure. There is always a difference between (i) disclosing a bank account number and not producing all or any of the bank statements (as the Wife now so alleged against the Husband) and; (ii) not disclosing the existence of a bank account at all but was subsequently revealed by the other party (as happened in the Wife’s case). The latter scenario happened with the Wife during cross examination by the Husband’s Counsel on 5 February 2015. Upon enquiry, it transpired that even the Wife’s lawyers and Counsel had no instructions on those undisclosed bank accounts. 71.As to the contention of incomplete disclosure, as a matter of fact the Wife herself had not “come with clean hands” at all and she was found by the Court to be far from honest. At paragraphs 66 to 70 of the Reasons for the Judgment, it was found by the Court that Wife was less than honest and frank in her testimonies and also failed to disclose (i) her Bank of China checking account (§67 of the Judgment); (ii) yet another Agricultural Bank of China account (§68 of the Judgment); and (iii) a property in Wuhan, Mainland China (§69 of the Judgment). 72.Given the above, I find there is no reasonable prospect of success on Ground (六) . 73.Ground (七) referred to the Court not considering the Wife’s new evidence which she attempted to adduce after trial, and even attached to the 37-page Written Submissions. Under this Ground, she attempted to account for the non disclosure was due to her change of lawyers who had not produced the evidence. The Court did not consider her grievances and criticisms against her previous lawyers. The Court did not give her a fair chance to produce her medical evidence and this was wrong in procedure. 74.Suffice to say is that any breakdown in trust and/or communication between a party and his or her lawyers resulting in evidence readily available at trial but not produced fall outside the ambit of the principles under Ladd v. Marshall [1954] 1 WLR 1489 for filing of evidence at the appeal stage. 75.Given the above, I find there is no reasonable prospect of success on Ground (七) . Any Otherwise Grounds ? 76.Having given full consideration to the Wife’s application and submissions, I find there are no exceptional circumstances or any other reasons on interests of justice for granting leave to appeal. Conclusion 77.For all the above reasons, I find the Wife’s application for leave to appeal fails. Orders 78.Given that there are 4 Summonses (see paragraph 13 above) consolidated for this hearing, I now make the following Orders :-
79.Following the dismissal of the 16 January 2016 Summons, the Summons dated 17 November 2015 which was adjourned sine die pending disposal of this application be also dismissed. 80.I also decided that there be no Order as to costs of the said Summonses for leave to appeal which, somehow to a considerable extent, have been replicated. Other related matters 81.On the 4th day of trial (that is, 1 April 2015) the Wife whilst still legally represented by Counsel Miss Eunice Yung appeared in Court bringing along bank statements of her undisclosed bank accounts, the existence of such accounts was revealed on the 3rd day of trial (that is, 5 February 2015) during cross examination. Her Counsel applied for leave to take instructions from the Wife and also applied for adjournment of the trial. 82.Leave was granted to the Wife’s lawyers to take instructions on the new bank statements. The trial was also adjourned to 24 and 25 June 2015 conditional upon :
83.On the following day, that is 2 April 2015, Messrs. Cap Chan & Co., took out a Summons for leave to cease acting for the Wife. 84.On 13 April 2015, the Court granted the Order for Messrs. Cap Chan & Co., to cease acting for the Wife. 85.At the adjourned trial on 24 June 2015, the Wife appeared in person. No Summons was issued for adducing the new evidence as per the conditions imposed for adjournment of the trial. Oddly enough, the Wife asserted that all her previous 5 Open Proposals were not her decision or instructions. She made criticisms of her lawyers and then put forward her 6th Open Proposals which was not accepted by the Husband. 86.The Wife continued with the trial in person.
The Petitioner appearing in person The Respondent appearing in person The 1st Intervener being absent Mr. K.L. Leung of Messrs. K.L. Leung & Co., acting for the 2nd Intervener | |||||||||||||||||||||||||
Further hearings and rulings under FCMC 16222/2012