Hyf v. Csl

FCMC14931/2014

[2025] HKFC 38

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 14931 OF 2014

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DECISION
( Leave to Appeal )

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1.This is the application taken out by the Petitioner (“W”) for leave to appeal against the Judgment handed down by me on 30 August 2024 (“Judgment”) and stay of execution pending appeal.

2.Corrigendum was subsequently issued on 22 November 2024.

3.In so far as applicable, I would use the same abbreviations as that in the Judgment[1].

Legal principles regarding leave to appeal

4.Section 63A(2) of the District Court Ordinance (Cap. 336) provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

5.The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125.

Ground 1

6.W argued that I erred in my approach in assessing the values of H’s assets, namely Shanghai Colom, RMB 30 million Compensation, the HK Companies owned by H, the Theme Park etc.

7.Before coming to the conclusion as to the values of H’s various assets, I did carefully examine the documentary evidence such as the Shanghai Colom’s ledgers etc, and consider the testimonies of the witnesses. I also kept reminding myself of the principle in Moher v Moher “to ensure that the non-discloser does not obtain a better outcome than that which would have been ordered if they had complied with their disclosure obligations” in the Judgment.

8.Even though the parties have the duty to make full and frank disclosure of their assets, it will not prevent the opposite side to take out specific discovery application against the other and/or request for professional valuation of a particular asset. In my view, if there are insufficient documentary evidence or lack of professional valuation, the best that the court could do is to assess the value based on the limited evidence before the court. That is what I did in the Judgment.

9.This ground has no merit.

Ground 2

10.W submitted that I was plainly wrong in concluding that there was insufficient evidence to establish that H was the beneficial owner of Dong Fang Ju Hotel, and that I erred in finding that W had secreted sales proceeds of the Ming Yue Road Property.

11.Before coming to such a conclusion and finding, I did thoroughly examine the documentary evidence such as the declaration dated 12 January 2005, bank records etc, and consider the testimonies of the witnesses.

12.If it is the W’s case that H had a beneficial interest in Dong Fang Ju Hotel, but not that he was a registered shareholder or owner, she has to join the relevant party and request a determination of beneficial ownership by the court as a preliminary issue. Nonetheless, W failed to do so.

13.If the adding back of the sale proceeds on top of W’s cash holding and bank account balances resulted in double-counting, W has failed to show the exact amount of the alleged double-counting in her submission.

14.Again, this ground has no merit.

Ground 3

15.W argued that I erred in ordering that W do make the lump sum payment within 28 days from the issue of the Decree Absolute since the bulk of her assets are real properties and cannot be realised within a short period of time.

16.I consider that she may apply for an extension of time to make such payment, if necessary.

Conclusion

17.To conclude, W 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.

18.Since leave to appeal is refused, I see no good reason to grant stay of execution pending appeal. W’s amended summons dated 28 September 2024 and re-filed on 3 February 2025 be dismissed.

19.Regarding the question of costs, costs shall no doubt follow event. H has not lodged his statement of costs. I thus order that costs of this application be paid by W to H, to be taxed if not agreed.

Ms Bonnie Y.K. Cheng and Mr Jonathan Fung instructed by Ho & Ip for the Petitioner

Mr Enzo Chow and Ms Esther Leung instructed by Chong & Partners LLP for the Respondent