D, W v. H, H T and Others

FCMC 2662 /2021

[2025] HKFC 118

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES No. 2662 OF 2021

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J U D G M E N T
( Transfer to High Court Ex Tempore )

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Introduction

1.This is an application on 9 May 2025 by the Petitioner wife to transfer this case to the High Court. She appears in person.

2.Previously on 14 March 2023 and at the time when she was represented, there was a prior application for transfer; at the call-over hearing on 29 March 2023, this prior application was adjourned sine die. The current application is not a restoration of the previous application but a fresh application. As the prior application has been superseded by this one, I shall dismiss the 14 March 2023 application with no Order as to Costs.

3.This is the Extempore decision for this application, and will therefore be brief.

The Legal Principles

4.The applicable principles can be found in Rule 32 and Rule 80 of the Matrimonial Causes Rules, as well as with reference to PD15.14.

5.For simplicity purpose, I shall turn to the summary succinctly put together by HHJ G Chan in the case of FHM v KYM (FCMC 13457/2013, 9 April 2015 at §§45 to 47:

“The relevant considerations are:

(1) Whether there is a matter of public interest;

(2) Where there are novel or difficult points of law to be resolved;

(3) Where delay will work a clear injustice;

(4) Where there is unduly complicated or conflicting evidence the resolution of which is likely to be so protracted that it will unduly prejudice the Family Court lists and this work against the interests of other litigants;

(5) Whether the financial limits for the time being relating to the jurisdiction of the District Court in other matters (but this factor alone is not decisive);

(6) In general, whether there is special complexity”

The Arguments

A.  Consolidation

6.On this point, Petitioner says there were previously 4 High Court cases; now there is one left HCA: XXX/XXX, she says this case is of great impact. And she says the 1st Respondent has leave and so should she. On question by the Court what leave the 1st Respondent has, she says the 1st Respondent has leave to use documents in the family court proceedings to be used in High Court. I informed her that the 1st Respondent’s leave is not the same as that which she is now applying for. She says the two cases have strong correlation, and therefore these proceedings should be consolidated with her case in the High Court.

7.The 1st Respondent husband contends that out of the 4 High Court proceedings, three had been permanently stayed by joint application by consent. As for HCA XXX/XXX, there was substantive arguments in this case resulting in Master K W Wong staying the case pending the conclusion of the ancillary relief proceeding in the Family Court.

8.In the Petitioner’s reply, she says as there are now contempt proceedings against her in relation to the High Court proceedings, this case is therefore still on-going.

9.I agree with the 1st Respondent’s case and find that this is not an acceptable basis for the transfer application. Furthermore, contempt proceedings are enforcement proceedings of a previous order made, and does not mean that a particular case is still active.

B.  Time

10.The Petitioner’s second argument is regarding time; and says that there are only 6 more months to the trial dates in January. In gist, she says she needs information on the 1st Respondent’s transfer of assets, but she has received no information. She says the 1st Respondent has 20 subsidiaries from 5 different countries. She also adds that the assets in the 1st Respondent’s companies had $200,000,000 8 months before the divorce, but then in a negative position (net loss of $100,000,000) shortly after the divorce begun.

11.The Petitioner also says she has been subject to various law and procedure in the past two years, including SJE on company valuations, Crossley application involving the Heads of Agreement that was signed, specific discovery proceedings, and now committal. She argues that she is not the one who is causing the delay in these proceedings.

12.To this point, Counsel for the 1st Respondent argues that the trial dates are milestone dates, and should not be disturbed. Refixing a 15 days trial will cause the 1st Respondent to suffer from delay in the determination of this case, and reminds this court that there has been on-going dissipation even during the course of the divorce proceedings. Counsel also says that a lot of the issues raised by the Petitioner including her complaint about the H’s dissipation will be dealt with at trial, and therefore an early trial date will assist her.

13.As a matter of important principle, a milestone date – in this case being a 15 days trial set down in January 2026 should not be moved arbitrarily. At the first CMH hearing in December 2024, deadline for interlocutory applications was set down for 24 March 2025. Therefore, since last December, the Petitioner had plenty of time to seek further discovery from the 1st Respondent if need be. As at the date of this hearing, she now has her own specific discovery application made on 14 May 2025 to be heard coming July.

14.I do not accept her explanation that there needs to be more time as there are overwhelming information to deal with or to be sought as a basis for transferring this case to the High Court. It almost appears as if she is hoping for more time to prepare her case by this transfer application. This ground for transfer is therefore not accepted.

C.  Complain about bias

15.This is a new ground that the Petitioner only brought up in her Reply Affirmation. 1st Respondent’s counsel says this is an ambush, and there is no avenue to address this new point raised. On this ground alone, 1st Respondent submits that this is not a point to be considered.

16.This new point by the Petitioner states that as she has worked at XXXXXX, XXXXXXX, and XXXXXXX, and that I had previous private banking roles as XXXXXXXXXXXXXXXXX at two other private banks; she then claims that (1) our path had crossed - with no specific evidence, and (2) that we “competed in the same business” – hence I was her competitor (3) there are overlaps in terms of relations with clients, colleagues and associates – again with no specific evidence. Therefore I have a conflict of interest.

17.Petitioner then went on to repeat her previous allegation of apparent bias on my part against her, and felt that she has suffered from prejudice. She had in fact spent a substantial part of her submission on this “apparent bias” point.

18.First of all, a Reply affirmation should not be bringing out new issues which the other party has no opportunity to address. I acknowledge the 1st Respondent ask of me to ignore these points.

19.To be complete, I ask the Petitioner to address me on what authority is she relying on to say that “apparent bias” is the basis of an application for transfer of case to the High Court. Her answer was she cannot find one. The 1st Respondent’s counsel submits that bias has no role to play in this application, as this is not a recusal application.

20.For the record, the Petitioner did take out a recusal application back on 3 January 2024, at the date of the substantive hearing with legal representation on 23 August 2024, the Petitioner withdrew her application.

21.I agree with the 1st Respondent’s case, allegation of bias is not a ground to apply to transfer a case to the High Court; nor is conflict of interest. I therefore find no merit on this point.

D.  Complexity

22.The Petitioner says in conclusion that this case should be transferred to the High Court because it is complex. To quote from her submission, she says:

“This case involves disputed assets of more than HK$200,000,000, dissipation of trust assets from the matrimonial pool, multi-jurisdictional corporate issues, shareholder disputes, international taxation and potential criminal and tort issues arising from the unauthorised transfers or illegal waste of corporate assets. The Interplay between the complex fact pattern of this case and applicable laws and principles spanning across multiple legal areas justifies a transfer to the High Court.”

23.The 1st Respondent argues that an allegation of complexity requires specific description of the actual issue as to why they are complex, and this has not been done. It was further submitted that the factual issues as to discovery and frittering of assets can be dealt with at trial; that there is no more trust involved as it has been dissolved; the beneficial ownership of company shares (in this case alluding to the 1st Respondent’s s.17 application of Ningbo shares) are issues that the family court is most familiar in dealing with, and there has not been any tax issues identified.

24.In this regard I was brought to two cases which was cited and relied on by the 1st Respondent, namely:

The Family Court consists of “a pool of judges who are very experienced in this particular field. The judges deal with a wide range of ancillary relief cases, regularly involving may millions of dollars and with international implications.” NLT v LYKJ [2020] HJFC75 at §20.

“The Family Court judges, being judges in this specialized field, have been determining, as a matter of daily routine, claims on third party beneficial interest and / or whether dispositions of property should be set aside under section 17 of the MPPO.” FHM v KYM (FCMC 13457/2013, 9 April 2015 at §51.

25.I agree with my sister judges in both of the above cases. There is indeed no specifics as to the alleged complexities. And despite the generality with which the Petitioner has described the complexity of the case, it does not appear at all that those are outside the expertise of the family court judges in our usual determination of big money cases with complex business and family holding structures.

26.Furthermore, the Family Court has no financial limit in terms of our jurisdiction and the alleged size of a matrimonial pot of $200,000,000 is hardly a sufficient reason for this matter to be transferred to the High Court.

Conclusion

27.In conclusion, I do not find that the Petitioner has put forward any meritorious grounds for this case to be transferred to the High Court.

Costs

28.Costs should follow the event, and the costs of this application should be to the 1st Respondent.

The Orders

29.The Petitioner’s application dated 14 March 2023 be dismissed with no order as to Costs.

30.The Petitioner’s application dated 9 May 2025 be dismissed.

31.All Costs of, arising from and incidental to this Summons dated 9 May 2025, with all costs reserved, be to the 1st Respondent, to be taxed if not agreed, with certificate for counsel. This to be a Costs Order Nisi to be made absolute 14 days hereof.

The Petitioner acting in person

Ms Terri Ha instructed by Lee Law Firm appeared for the 1st Respondent