Tkb v. Coka

FCMC 2648/2018

[2021] HKFC 67

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 2648 OF 2018

----------------------------

BETWEEN

----------------------------

Coram : District Judge S. Lo in Chambers (Not Open to Public)

Date of Respondent’s submission : 20 January 2021

Date of Petitioner’s submission : 3 February 2021

Date of Decision : 23 April 2021

-----------------------

D E C I S I O N

( Leave to Appeal )

-----------------------

1.This is the application taken out by the respondent (“Wife”) for leave to appeal against my decision dated 31 December 2020 (“Decision”), in which I order to discharge the obligation of the petitioner (“Husband”) to pay the interim maintenance under the order made by DDJ Tse Ching on 13 December 2018.

2.By consent, this application is disposed of on paper.

Legal principles

3.Section 63A(2) of the District Court Ordinance provides that for leave to appeal to be granted, the intended appeal should have a reasonable prospect of success or there should be some other reasons in the interest of justice why the appeal should be heard.

4.A reasonable prospect of success involves the notion that the prospect must be more than fanciful without having to be probable.

Ground 1

5.The Wife submitted that I paid insufficient regard to the incredibility of the Husband’s case concerning his pre-petition finances.

6.As stated in para 31 of the Decision, I am fully aware of the fact that the Husband was running a successful business for parallel importing in Hong Kong which has been closed in 2011, more than 9 years ago.  Thereafter, his income mainly relies on the profit from his stock trading.

7.As per para 28 of the Decision, from 2011 to 2019, the Husband got the net profit from stock trading in the sum of around $2.7 million, which is roughly $300,000 a year or $25,000 a month.  He disclosed a lot of statements in support (over 10,000 pages of documents as said by him) whilst the Wife produced no evidence to challenge this figure of $2.7 million.

8.I disagree that I paid insufficient regard to the Husband’s pre-petition finances.  Although the court is entitled to draw adverse inference against the payer if the disclosure of his finance is materially or obviously deficient, the Wife simply failed to show how material or obvious the Husband’s disclosure is deficient.

9.I consider that this ground has no merit.

Ground 2

10.Concerning the Husband’s post-petition conduct, I understand that he voluntarily gave the undertaking to pay around $51,000 per month in August 2018.  Nonetheless, the court must have the power to discharge such undertaking if there is material change of circumstances.  Based on the documents produced by him, especially when the value of stocks now shown in his securities’ accounts is zero, which cannot be challenged by the Wife, this change of his finance must be material.

11.I consider that this ground has no merit.

Ground 3

12.This concerns the Husband’s incurred and projected legal costs.  The Wife challenged as to how he will be able to repay the loans as alleged by him if he has no substantive income.

13.The Husband also submitted that the Wife alleged to borrow from her mother a total of $2.4 million. As admitted by the Wife, she has around $1.2 million cash in her bank putting aside the Inverness Villa property[1] which shall be rented out to generate some income for her. 

14.Even if the court disagrees the loans as alleged by the Husband, it does not follow that he has the ability to pay.  For interim purpose, it is not appropriate, nor indeed in most cases possible, for the court to conduct a detailed investigation into the finances of the parties.

15.I consider that this ground has no merit.

Ground 4

16.This concerns numerous withdrawals and deposits of funds by the Husband.

17.As said in para 26 of the Decision, as the Wife failed to show whether there is a significant difference between the withdrawals and deposits, I do not think that at this stage, it is justified for the court to draw adverse inference against him simply based on some cash withdrawals by the Husband in certain period of time.

18.As said by the Court of Appeal in Z v X [2015] 5 HKLRD 791, if the court concludes that funds have been hidden, then it should attempt a realistic and reasonable quantification of those funds, even in broadest terms.  The Wife failed to quantify the alleged hidden funds by the Husband.

19.I consider that this ground has no merit.

Ground 5

20.This concerns the practical effect of the Decision.  As a matter of fact, the Husband has already stopped payment since December 2019.  In other words, the Wife has been paying the children’s expenses since then but she is still able to maintain around $1.2 million cash in her bank.

21.In my view, my finding that the Husband is unable to pay is just made for interim purpose and is not final.  The Decision is made on a broad brush approach without going into detailed investigation of the finances of the parties as any under or over payment can be adjusted at the final trial for ancillary relief, the Wife may be able to claim back the children’s expenses paid by her eventually after trial.  After all, the granting of interim maintenance is a discretionary exercise.

Conclusion

22.To conclude, the Wife has failed to demonstrate any reasonable prospect of success in her intended appeal and there is no other reason in the interests of justice why the appeal should be heard.  Her application for leave to appeal should be dismissed.

23.Regarding the question of costs, there is no reason why costs shall not follow event.  I order that costs of this application be paid by the Wife to be taxed, if not agreed.

Mr Ken Chan instructed by of King & Wood Mallesons for the Petitioner

Mr Vincent Lung instructed by M/S Hau, Lau, Li & Yeung for the Respondent