Leung, Kingsley v. Liang, Vivien Joyce Hui Yan

HCA 1350/2024

[2025] HKCFI 6120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1350 OF 2024

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D E C I S I O N

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1.This is the Defendant’s appeal against the decision of the learned Master who refused specific discovery of certain documents. My views on whether the documents sought should be disclosed by the Plaintiff under RHC O.24 r.7 are as follows.

Items 1 to 9

2.I start with Items 1 to 9. These items relate to a Cayman Islands company called Great Bay Bio Group Limited (“GBBG”), of which the Plaintiff is a minority shareholder and the Chairman. Some GBBG shares were transferred from the Defendant to the Plaintiff at an agreed price pursuant to the consent order to settle issues of ancillary relief made by the Family Court (“the Consent Order”). The Defendant contends that the requested documents relate to the value of GBBG, and that its value would affect the value of the matrimonial pot of assets.

3.I am not satisfied that the documents sought are relevant to the issues in the action.

(1)  In this action, the Plaintiff seeks to set aside the Consent Order on the basis of the Defendant’s material non-disclosures made in her financial disclosure form. The Plaintiff alleges that the Defendant failed to disclose (a) her intention to re-marry and any financial information of her intended husband, and (b) her taking into possession and the purported ownership of a Chinese wedding gown.

(2)  Therefore, according to what Chow JA said in GM-SA v DDPJ [2022] 3 HKLRD 767 at [28], the main issues in a case like this at trial would involve (a) whether there had been any non‑disclosure, (b) whether the non-disclosure was deliberate or inadvertent, and (c) whether the non-disclosure was material to the decision made at the time, resulting in the making of an order which was substantially different from the order it would have been made if disclosure had taken place.

(3)  Neither party has made any reference to the value of GBBG or its shares in their respective pleading. The Defendant has also not pleaded any alleged contribution she has made to the value of GBBG. Therefore, it does not appear that the value of the Plaintiff’s assets, or the size of the matrimonial pot, is relevant to any of the issues to be determined at the trial.

(4)  Around one week before today’s hearing, the Defendant filed a document called “Voluntary Further and Better Particulars of the Defence” on 18 November 2025 purporting to give voluntary particulars about her plea that the assets were divided in the settlement on a sharing basis. In particular, the Defendant seeks to refer to her alleged contribution in the marriage, including the alleged growth in GBBG. The Plaintiff has indicated his objection to the filing of this document, and the Defendant must apply for leave to serve the purported particulars: Hong Kong Civil Procedure 2025 Note 18/12/69. In any event, this is a re-hearing of the Defendant’s Summons dated 27 March 2025 for specific discovery and I should only look at the state of the pleadings as they stood when the Defendant’s application was taken out. The Defendant cannot justify the relevance of the requested documents by seeking to refer to their “voluntary particulars”.

(5)  The Defendant argues that the actual size of the matrimonial pot is relevant to determine whether the parties settled their claims by reference to sharing rather than needs. Insofar as this is something which needs to be resolved at the trial, the issue can be determined by reference to the evidence that was available to the parties at the time of the settlement, rather than the evidence that was not available before the Family Court.

(6)  The Defendant also argues that she requires the requested documents to rebut the Plaintiff’s plea that the Consent Order was “exceptionally generous”. But whether or not there had been any material non-disclosure does not depend on the generosity or otherwise of the Consent Order. It is also irrelevant to determine whether the Plaintiff had been hiding his own assets as alleged by the Defendant because the Defendant has not mounted any cross-claim to set aside the Consent Order on the basis of the Plaintiff’s material non‑disclosure.

(7)  In any event, the Plaintiff is not asking for the claims for ancillary relief to be re-adjudicated in these proceedings. In the event that the Consent Order is set aside, the Plaintiff has asked for the re-adjudication of the parties’ ancillary relief claims to be done by the Family Court. If and when that happens, the Family Court will have to assess the parties’ wealth as at the date of the trial on the basis of the evidence to be adduced by the parties.

(8)  For these reasons, I am not satisfied that the documents sought in Items 1 to 9 are relevant.

4.For substantially the same reasons, I am also of the view that the documents sought in Items 1 to 9 are not necessary either for disposing fairly of the cause or matter or for saving costs.

5.Further, I am not satisfied that the Defendant has satisfactorily shown that the requested documents of GBBG are in the possession, custody or power of the Plaintiff.

(1)  It is true that the Defendant has filed an affirmation to say that she had personally handled, and was privy to, the GBBG documents whilst assisting the Plaintiff. However, that was the time when the parties were still married, which was over 3 years. There is insufficient material to suggest that the requested documents are now in the Plaintiff’s possession.

(2)  Further, I do not believe the Defendant has sufficiently demonstrated that the Plaintiff, whether as the Chairman or a minority shareholder, has unfettered control of GBBG’s affairs. It is also unclear whether the Plaintiff is a current director of GBBG; the Defendant only stated in her affirmation that the Plaintiff “had been” a director of that company.

6.As far as the documents in Items 6 and 7 are concerned, I also consider the requests to be imprecise and too wide.

7.As far as the documents in Item 9 are concerned, they relate to another entity called “Great Bay Bio Limited”. I am unable to see, and the Defendant has not provided any explanation to show, (1) the connection between this entity and their marriage, (2) whether the entity exists and whether its audited financial statements exist, and (3) why the Plaintiff would have possession, custody or power over the requested documents.

8.For all of these reasons, I dismiss the Defendant’s application for specific discovery in respect of the documents at Items 1 to 9.

Items 10 to 13

9.The documents sought under Items 10 to 13 are shareholders agreements and share restriction agreements relating to GBBG. The Defendant says that the Plaintiff holds the majority of the GBBG shares on trust for his mother. She further says that if the trust claim turns out to be false, the matrimonial pot will be larger.

10.For reasons similar to those given earlier in relation to Items 1 to 9, I am not satisfied that these documents are relevant and necessary, and that the Plaintiff has the possession, custody or power over them. As far as relevance is concerned, I further note that neither party has made any reference to the trust over GBBG shares in their respective pleading.

11.For these reasons, I dismiss the Defendant’s application for specific discovery in respect of the documents at Items 10 to 13.

Items 14 to 23

12.The requested documents at Items 14 to 23 are documents concerning a trust. The Defendant says that they relate to the Plaintiff’s entitlements to a trust called the MJKPC Trust. She further says that the Plaintiff has declared that he is a discretionary beneficiary of this trust but that he has no interest in it. She claims that the Plaintiff’s entitlements under the trust is a matrimonialised asset and the requested documents relate to the size of the matrimonial pot.

13.For reasons similar to those given earlier in relation to Items 1 to 9, I am not satisfied that these documents are relevant and necessary. I note that neither party has made any reference to the MJKPC Trust or Automatic Result Limited, or the growth of the assets comprised in the trust, in their respective pleading.

14.The Defendant asserts that the Plaintiff must have the requested documents in his possession, custody or control because he has significant influence over the trust and is one of the discretionary beneficiaries. In my view, it does not follow that being one of the objects of a discretionary trust would have significant influence over the trustee. Therefore, even assuming that the Plaintiff is an object of this discretionary trust, there is nothing to suggest that the Plaintiff has the power over the requested trust documents. Further, I am of the view that the Defendant has not shown that the Plaintiff has unfettered control of affairs of Automatic Result Limited to procure the disclosure of this company’s documents.

15.As far as Items 16 and 19 are concerned, I am also of the view that the requests are imprecise.

16.For these reasons, I dismiss the Defendant’s application for specific discovery in respect of the documents at Items 14 to 23.

Items 24 to 40

17.According to the Defendant, the documents requested in Items 24 to 40 relate to the Plaintiff’s private company interests which were not previously disclosed in his Form E. The Defendant contends that the documents relate to the size of the matrimonial pot.

18.For reasons similar to those given earlier in relation to Items 1 to 9, I am not satisfied that these documents are relevant and necessary. I note that neither party has made any reference to any of the various companies referred to in these items, or their change in value, in their respective pleading.

19.Further, I am of the view that the Defendant has not shown that the Plaintiff has unfettered control of affairs of the named companies to procure the disclosure of their documents. She has not demonstrated that the Plaintiff has the possession, custody or control of any of these documents.

20.For these reasons, I dismiss the Defendant’s application for specific discovery in respect of the documents at Items 24 to 40.

Items 41 and 42

21.The two classes of documents requested in Items 41 and 42 are emails from the Defendant’s email account from one of the Plaintiff’s companies, and the WeChat history of a certain chat group. The Defendant contends that the requested documents relate to the work she undertook for the Plaintiff and his family businesses.

22.For reasons similar to those given earlier in relation to Items 1 to 9, I am not satisfied that these documents are relevant and necessary. Again, I note that neither party has made any reference to the Defendant’s contribution during the marriage in their respective pleading.

23.Further, I consider that the Defendant has not sufficiently demonstrated that the Plaintiff has the possession, custody or control of these documents.

24.I also find that the requests for the class of documents are too wide.

25.For these reasons, I dismiss the Defendant’s application for specific discovery in respect of the documents at Items 41 and 42.

Defendant’s Summons to Adduce New Evidence dated 19 November 2025

26.Finally, I turn to deal with the Defendant’s summons dated 19 November 2025, filed shortly before this hearing. In that summons, the Defendant seeks leave to adduce 5 additional documents as new evidence in this appeal. She accepts that she needs to satisfy the Ladd v Marshall conditions in order for leave to be given.

27.As far as the first Ladd v Marshall condition is concerned, the Defendant submits that leave was only granted by the Family Court on 13 October 2025 to release her from the implied undertaking to use the documents. She says this is why these documents could not be used at the hearing before the Master. I disagree. The Defendant is now seeking to rely on the information contained in the documents in this appeal. Such information was certainly available to the Defendant and could have been utilised by mentioning it in the form of an affirmation filed in these proceedings before the Master.

28.As far as the second Ladd v Marshall condition is concerned, the Defendant says that the Family Court documents have an important influence in this appeal. Having considered her submissions in the substantive appeal, I do not think the new documents would have made any significant difference to the points advanced by the Defendant in this appeal. Many of the points made by the Defendant for the purpose of the appeal were already supported by the existing evidence in these proceedings. Indeed, Mr Pang for the Defendant accepted that he could make his submissions in this appeal without the new materials.

29.It is unnecessary to consider the third Ladd v Marshall condition.

30.In any event, I also agree with the Plaintiff’s submission that the application is too late.

31.For these reasons, I decline to give leave to the Defendant to rely on the 5 additional documents as new evidence in this appeal.

Conclusion

32.For the reasons given earlier, I dismiss the Defendant’s appeal. I also dismiss the Defendant’s summons dated 19 November 2025. I will now hear the parties on costs.

[Submissions on costs]

33.I make an order that the costs of and occasioned by the Notice of Appeal dated 13 August 2025 and the Defendant’s summons dated 19 November 2025 are to be paid by the Defendant to the Plaintiff, with a certificate for two counsel, to be summarily assessed.

[Submissions on summary assessment]

34.Adopting a broad-brush approach, I summarily assess the Plaintiff’s costs at HK$350,000 in relation to the Notice of Appeal and HK$70,000 in relation to the Defendant’s summons dated 19 November 2025.

Ms Mairead Rattigan SC and Mr Cristian Tsang, instructed by Haldanes, for the Plaintiff

Mr Robert Pang SC and Ms Elizabeth Lee, instructed by Rita Ku & Ser, for the Defendant