C,Hj Aks Chj v. Lsr Aks L,Sr and Another
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FCMC 12018/2022 [2025] HKFC 181 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 12018 OF 2022 ---------------------------- BETWEEN
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------------------------- J U D G M E N T (Reimbursement of Child’s School Fees/Variation ------------------------- Introduction 1.The Petitioner and the 1st Respondent are respectively the wife and husband in these divorce proceedings. I will refer to them as “W” and “H” respectively in this Judgment. 2.This is the substantive argument of 2 applications, namely, W’s Summons dated 20/3/2025 (“W’s Summons”) and a Summons subsequently taken out by H dated 13/5/2025 (“H’s Summons”). The substantive argument hearing does not involve the 2nd Respondent and the Intervener. 3.Parties somehow agreed that H’s Summons be dealt with and heard together in the trial of W’s Summons which had already been scheduled for 23/6/2025 and that both H and W do personally attend the hearing. However, it was then further agreed between the parties :-
4.There was a Consent Summons taken out by H’s lawyers[1] dated 23/5/2025 to incorporate the agreed arrangement which W’s lawyers endorsed their consent. On 4/6/2025, the Court sent to parties a note of “By consent, order in terms”[2] 5.Both H and W are legally represented and engaged Counsel for the substantive argument before me. 6.For the substantive argument, parties’ affirmation evidence includes :-
7.W’s Summons[7], which was issued earlier in terms of time, reads as follows :-
8.H’s Summons[8] which was issued subsequently reads, as follows :-
9.It may be worth to mention the provisions and rules upon which the 2 Summonses were issued. 10.At the marginal note of W’s Summons, it referred to Sections 4, 5 & 10 of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”) and Section 3 of the Guardianship of Minors Ordinance, Cap.13 (“GMO”). 11.At the marginal note of H’s Summons, it referred to Section 11 of the MPPO. Background 12.Parties were married in October 2004. There is one child of the family born in 2008 whom I would refer to him as “J” in this Judgment. At the time of this hearing, J was aged 17 and had been receiving full time education in Canada since 2022. 13.In December 2022, W petitioned for divorce relying on the fact of “Unreasonable Behaviour”. H did not contest the main suit. 14.Decree Nisi was granted in November 2023. 15.On 30/5/2024, W issued a Summons seeking J’s tuition fees continued to be paid by H (“W’s Tuition Fees Summons”). 16.On 12/7/2024, H issued a Summons for interim maintenance for J and maintenance pending suit for himself (“H’s MPS Summons”). 17.On 19/7/2024, Master W.Y. Ho at a directions hearing of the aforesaid 2 Summonses decided, inter alia, that there be an “interim interim maintenance” Order that H was to continue to pay J’s tuition fees and boarding cost and all school-billed expenses until determination of H’s MPS Summons[9]. 18.These aforesaid 2 Summonses were substantially argued and disposed of by Deputy District Judge P. Barnes on 18/11/2024. The learned deputy judge handed down his Judgment on 11/12/2024 and it was decided, inter alia, as follows[10] :-
19.Given the reliefs sought under the aforesaid 2 Summonses, the substantive hearing before the learned deputy judge was conducted upon parties’ affirmation evidence and Counsel submissions without oral evidence given by the parties (same as in the present substantive argument hearing before me). 20.At the end, W succeeded in her “Tuition Fees Summons” and obtained the so-called “School Fees Order” whilst H completely failed in his “MPS Summons”. Some Procedural and Preliminary Matters 21.Whilst W’s Summons was taken out under the MPPO and GMO provisions, there was no issue between the parties that the reliefs sought by W were brought under Order 45 rule 6(2) of the Rules of the High Court, Cap 4A, that is, to specify the time for H to comply with the “School Fees Order”. 22.There was no appeal or any indication to appeal out of time by H in respect of the 11/12/2024 Judgment of Deputy District Judge P. Barnes. That said, the views taken and conclusion reached by the learned deputy judge for arriving at the “School Fees Order” was accepted by H. 23.There was no dispute as to the governing law and applicable legal principles between Counsel that are of relevance to determine W’s Summons and H’s Summons. 24.Actually, it has been fairly conceded by H’s Counsel Mr Sam Ng at paragraph 86 of his Written Submissions where he said :-
25.Given that there was no oral evidence received from the parties at this substantive argument before me (as parties had so agreed[11]), but only Counsel submissions on behalf of the parties, cross referenced to the views taken and decision reached (my emphasis) by Deputy District Judge P. Barnes on a “broad-brush” approach, I have reminded myself that neither the parties’ credentials nor any of those matters raised in their affirmation evidence filed so far had been tested through process of cross examination in a substantive trial (my emphasis). 26.With such caveat, the parties’ affirmation evidence (including exhibits) filed for the present applications would only be viewed upon at their face values, assessed objectively and on a balance of probabilities basis. I am in no position to make, nor the learned deputy judge had ever made, any findings of facts on the parties’ cases upon their affirmation evidence. That said, it was somehow akin to the situation of “one’s words against the other’s”, so to speak. 27.Besides, there are a number of crucial factual disputes which are of relevance to resolve H’s Summons but had yet to be decided through the necessary process of trial; in particular, the preliminary issues involving the Intervener’s claim to be determined in accordance with the TL v ML process. Those crucial factual disputes, amongst others and just to say a few, such as :-
28.H’s Counsel Mr Sam Ng had fairly and helpfully put forward the following emphasis at paragraphs 30(3) and (5) of his Written Submissions which reads:-
29.Further, H’s Counsel at paragraph 18 of his Written Submissions also correctly summarized the relevant principles in applications for variation with emphasis that the overriding objective of the Court is to achieve fairness (citing CMM v CHWK [2022], AEM v VFM [2008] 3 HKLRD 36, HCTT v TYYC [2008] 5 HKC 86). 30.W’s Counsel, apart from referring to the relevant tests laid down in the prevalent cases, contend that there was no material change of circumstances so alleged by H[12]. H’s application was unmeritorious akin to a “back-door” appeal through which H sought to re-argue the same set of facts in the hope of obtaining a different outcome[13]. Discussion 31.From a practical approach, I will first consider H’s Summons. 32.Paragraphs (1) and (2) of H’s Summons are in the alternative. H first sought a discharge of the order for payment of the “School Fees Order” under the 11/12/2024 Judgment; and if unsuccessful, he sought a suspension of the “School Fees Order” until final determination of the Intervener’s claim against him. 33.There are 2 different scenarios on the submission that there was a material change of circumstances. The first scenario is that a new circumstances had “emerged” which did not exist or foreseeable at the time when the “School Fees Order” was made which rendered compliance not feasible or possible. The second scenario was that those circumstances that had existed at the time when the Order was made had undergone material change (my emphasis) to the extent that compliance with the Order was no longer feasible or possible. 34.In my decision, both scenarios would require “cogent and convincing” evidence preferably from independent source. The Court would have to consider such evidence holistically from an objective perspective. The circumstances under which such “cogent and convincing” evidence, apart from the source where they “emerged”, is also important when deciding what weight should be attached to such evidence to support that a material change of circumstances had occurred which was not self-engineered. 35.The material change of circumstances which H submitted was, firstly, his lack of means. H’s sole proprietorship business “L” was said to be no longer in a profitable position in 2024 comparing with 2020 to 2023 when there were repayment of director’s loan to him H to the tune of HK$749,422 per year[14]. The director’s loan owed to H had reduced from around HK$4.6 million in 2020 down to HK$1.6 million in 2023. The learned deputy judge then concluded that if the trend for the past 4 years is an indication, “L” was a financial resource to H for repayment of director’s loan and possibility of declaring dividends[15]. 36.According to H, L’s draft financial statements for 2024 (which was not available at the hearing on 18/11/2024 before the learned deputy judge) shows L had only earned a net profit of HK$77,743 for 2024 (i.e. HK$6,479 a month), a drop from HK$171,820 for 2023 (i.e. HK$14,318 a month). Gross profit has also dropped from HK$1,655,133 in 2023 to HK$1,385,411 in 2024 due to a drop in revenue and an increase in costs of sale[16]. Contrary to the learned deputy judge’s observation of repayment between 2020-2023 of HK$749,422 per year, L had only repaid director’s loan of HK$160,000 to H in 2024 and none in 2025[17]. This was a material change of circumstances on L’s income or H’s source of income. 37.Further and more importantly, H was no longer able to access the “Disputed Assets” in the way as he did in the past years without the permission of his mother, the Intervener. H said he was faced with threats of legal proceedings from the Intervener for any future access to the “Disputed Assets” without the Intervener’s express permission. To this end, H had given an Undertaking voluntarily to the Intervener. This is another material change of circumstances to support his case for discharge or suspension of the “School Fees Order.”. 38.There are submissions that the learned deputy judge did not take into account H’s other assets/means in concluding that H was better placed than W to pay J’s School Fees[18]. Moreover, it was also said W had not identified realizable assets or means that H could utilize to pay for J’s School Fees[19]. 39.Furthermore, there are also submissions of H’s intended sale of his membership of The Hong Kong Golf and Tennis Academy (“HKGTA”) at the best possible price of HK$1.2 million intending to reimburse W. This had not gone through due to the Academy does not allow members selling membership below HK$2.3 million. The learned deputy judge did not base his decision on H’s means to pay by having to sell this asset[20]. 40.There were other submissions on H’s property at “Avignon” had been encumbered by W registering a Form A causing H unable to liquidate this asset. This asset has a net value of around HK$4.3 million though it was subject to a mortgage of around HK$2.3 million[21]. My Views on H’s submissions 41.The submissions that H’s business “L” was no longer profitable as it was in previous years would have to be further considered upon the finalized audited financial statements and accounts being adduced as evidence in due process of a trial proper. Snapshots of unaudited figures in a draft form of business accounts and turnover could hardly be accepted as “cogent and convincing” evidence to show a significant drop of business income to substantiate that there was a material change of circumstances. 42.As to H’s inability to access the “Disputed Assets” and the Undertaking that he had provided voluntarily in April 2024[22] to the Intervener, this was precisely a highly controversial and crucial factual dispute tied up with the “yet-to-resolve” preliminary issue as to beneficial ownership of the “Disputed Assets” between H and the Intervener. Actually this had already been pointed out by H’s Counsel as one of his emphasis to me in his Written Submissions[23]. 43.On this topic, the Intervener’s approval of a loan of HK$86 million to H to cover his legal costs liabilities but not granting a comparatively modest amount of loan to H for him to pay the “School Fees Order”[24], in my view, is susceptible to W’s concern of any concerted effort between the Intervener mother and her son H to prevent or defer W from receiving the fruits of litigation under the “School Fees Order”. Subject to my other observation at paragraphs 46 to 48 of this Judgment below, H’s submission of his inability to access the “Disputed Assets” without the Intervener’s permission could only be accepted or verified upon “tested” evidence and could not just rely on the parties’ (that is, the Intervener and H bearing in mind their intimate relationship of mother and son) mere “say-so” on paper. 44.As for the submissions that the learned deputy judge had not taken into account H’s intended sale of the HKGTA membership, his “Avignon” property being encumbered by W, and H’s financial means to pay and ability to borrow for complying with the “School Fees Order”, I am not convinced that the learned deputy judge had not considered or taken into account all those matters in his broad brush assessment exercise. 45.It is trite law that it is not the function of a judgment to address each and every point in arguments or evidence without regard to the significance of the same in the overall exercise in assessment of facts and evidence (as per Lam VP (as he then was) in the case of LWH v NKWS & Ors [2018] HKCA 260). In this case, I am satisfied that the learned deputy judge had sufficient information with assistance from Counsel submissions on the “untested” evidence when granting the “School Fees Order”. 46.As I observed earlier[25], there were no findings of facts made by the learned deputy judge when he formed his views and discretionary decision (my emphasis) to grant the “School Fees Order” after he had “broad brushed” the “untested” affirmation evidence before him. I believe this was the correct approach for him to take at the time. 47.To successfully argue that a material change of circumstances had taken place subsequently, there must first be identified what circumstances were there at the time when the “School Fees Order” was made. This would only be established on facts by proof of evidence rather than what the learned deputy judge believed or thought how it was or ought to be. 48.Having so established, it would then be possible to do a “comparison” of that earlier circumstances with the latter circumstances that had arisen (also need to be established on facts by proof of evidence) to see :-
A day-to-day example would be the factual circumstances of a person who was in employment at one time but, a material change had occurred, that he was subsequently dismissed from employment. 49.Given that the learned deputy judge made the “School Fees Order” out of his views and discretionary decision that it was fair for him to do so, I failed to see the logic how the judge’s views and discretionary decision (my emphasis) could be taken as established circumstances (my emphasis) from which a material change had occurred to support a case for variation. To do so is akin to challenge the judge’s views and discretion on the pretext that a material change of circumstances had occurred. 50.This observation led me to consider W’s Counsel submissions that H’s Summons was akin to a “back-door” appeal[26]. I tended to agree with W’s Counsel that when there was never ever any appeal lodged by H in respect of the “School Fees Order”, it would be fair to say that H had fully agreed with the views and discretionary decision (my emphasis) of the learned deputy judge. To lodge a variation application whilst not being able to establish on facts (my emphasis) the actual circumstances before the learned deputy Judge, in my view, is nothing more than attempting “a second bite of the cherry” hoping to obtain a different view from the Court with “untested” evidence. This perhaps could explain the absence of an appeal by H on the Judge’s discretionary decision, which could rarely succeed, but through the “back-door” of a variation application. 51.For the above reasons and analysis, I decided that H had not been able to demonstrate on facts by evidence that a material change of circumstances had occurred since the “School Fees Order” leading to the case where a de novo review was warranted. 52.I decided to dismiss paragraph 1 of H’s Summons. 53.Paragraph 2 of H’s Summons also fall apart for the absence of any grounds for me to “suspend” the “School Fees Order” pending determination of the preliminary issue. 54.I decided to dismiss H’s Summons in its entirety. My Views on W’s Submissions 55.W’s Summons was actually brought in to specify the time for compliance with the “School Fees Order” but not seeking any other additional reliefs[27]. 56.With my decision to dismiss H’s Summons in its entirety, and the fair concession of H’s Counsel[28], there are no reasons for me to reject paragraphs 1 and 2 of W’s Summons which catered for H’s compliance of the unchallenged “School Fees Order” and which was long due. 57.There will be an Order in terms of paragraphs 1 and 2 of W’s Summons, subject to any payment(s) that had been made by H prior to this Judgment that need to be accounted for and need to be worked out between the parties’ legal teams. 58.I also decided that a penal notice be endorsed on this Judgment. 59.As to paragraph 3 seeking the payment into Court order, I decided that there are not sufficient grounds for me to grant such an order at this stage, given W’s success on paragraph 2 of her Summons on reimbursement in full from H on sum(s) paid upon proof. 60.Paragraph 3 of W’s Summons will be dismissed. Costs 61.Overall speaking, W is the successful party of this substantial argument hearing. I see no reason why, but only fair and reasonable, W should not be compensated for the costs of and occasioned by pursuing her Summons and opposing H’s Summons, including all costs reserved. 62.I was invited by W’s Counsel to consider indemnity costs order against H. Given full and careful consideration to all the circumstances, also taking into account the “yet-to-resolve” preliminary issues (and section 17 of the MPPO involving the 2nd Respondent) where a full blown 12-day trial between H, W, the Intervener and 2nd Respondent and substantial costs implications one way or the other seems inevitable, any punitive type of costs order at this stage may not be fair and appropriate. 63.Having said, I decided the costs that H has to pay W for their Summonses will be on party and party basis, including all costs reserved, with Certificate for Counsel and to be taxed if not agreed. 64.And I will so order. 65.This is a costs order nisi which will become absolute if no application to vary the same is made within 14 days of this Judgment. The Way Forward 66.I noted that there was once a Financial Dispute Resolution (“FDR”) back in August 2025 which was vacated and adjourned pending this Judgment. 67.I also noted that there has now been fixed a 2-hour Pre-Trial Review (“PTR”) scheduled for 2 July 2026 at 10:30 a.m. followed by a 12-day trial on Section 17 and preliminary issue scheduled to start on 1 September 2026 at 10:30 a.m. 68.With this Judgment now handed down, I expect the parties to restore the FDR hearing soonest, preferably within 7 days of this Judgment, with the view to resolve all disputes of the parties to save costs and valuable judicial resources, let alone the time and expenses for the Intervener travelling from overseas for the 12-day trial. 69.Last but not least, I wish to thank Counsel and the parties’ legal teams of both parties for their valuable assistance to this Court.
Miss Alison Choy instructed by Messrs. Charles Russell & Speechlys LLP, Solicitors for the Petitioner Mr Sam Ng instructed by Messrs. Haldanes, Solicitors for the 1st Respondent [1] TB:A/21 to 24 [2] TB:A/25 [3] TB:B/243 to 254 [4] TB:B/255 to 284 [5] TB:B/285 to 303 [6] TB:B/304 to 312 [7] TB:A/1 to 3 [8] TB:A/4 to 6 [9] TB:A/7 to 10 [10] TB:A/11 to 13 [11] See §4 of this Judgment [12] See §§35 to 48 of W’s Counsel Written Submissions [13] See §51 of W’s Counsel Witten Submissions [14] See §22 of H’s Counsel Written Submissions [15] See §23 of H’s Counsel Written Submissions [16] See §33 of H’s Counsel Written Submissions [17] See §34 of H’s Counsel Written Submissions [18] See §61(1) of H’s Counsel Written Submissions [19] See §61(4) of H’s Counsel Written Submissions [20] See §69 of H’s Counsel Written Submissions [21] See §§73, 74 & 76 of H’s Counsel Written Submissions [22] TB:A/82 to 83 [23] See §28 of this Judgment [24] See §49 of H’s Counsel Written Submissions [25] See §26 of this Judgment [26] See §30 of this Judgment [27] See §21 of this Judgment [28] See §24 of this Judgment | |||||||||||||||||||||||||
Cases cited in this judgment
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Cpu v. Lcw
Wnwg v. Pbf
Sg v. Gdv
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Op-ps v. T (T-h) W
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陳 對 楊
謝 對 黃
Jph v. Pk
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林 對 容
李 對 黃
黃 對 李
蔡 對 陳
廖 對 陸
劉 對 劉
Kkwz v. Cpw
黃 對 陳
Further hearings and rulings under FCMC 12018/2022