Cmk v. Lvsc

FCMC 7556 / 2022

[2026] HKFC 172

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7556 OF 2022

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DECISION
( Leave to Take Out Late Interlocutory Application and
to File Further Evidence )

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1.By Summons dated 5 August 2026 (“the Summons”), the Respondent Wife (“the Wife”) made the application as follows:-

(a)  Leave for the Wife to take out late interlocutory application for her to file and serve the 2^nd Affirmation dated 5 August 2026 (“2^nd Affirmation”) as a further s.7 affirmation to be relied upon at the Trial of the ancillary relief proceedings (“Late Leave Application”); and

(b)  Leave for the Wife to file and serve the 2^nd Affirmation as a further s.7 affirmation to be relied upon at the Trial of the ancillary relief proceedings (“2^nd Affirmation Application”).

2.The Petitioner Husband (“the Husband”) opposes the Summons.

Background and procedural history

3.The parties married on 14 January 2011.  Petition for Divorce was taken out by the Husband on 16 August 2022 and the decree nisi was granted on 13 June 2023.

4.There are two children of the family.  The elder son, who is 14 years of age, is now attending Form 3 in a Secondary School in Wanchai, while the younger son, aged 12, has just started his secondary school education in September 2026.  Joint custody was granted to the parties, care and control to the Wife with defined access to the Husband.

5.The Husband has been working in a company for 23 years and is currently a marketing executive with monthly salary of about HK$22,432 in the tax year 2024/25.  The Husband has been paying the Children Maintenance through a third party (the “Third Party”) who deposited HK$6,900 to the Wife’s HSBC bank account on his behalf.

6.The Wife worked as a purchasing agent between 2001 and 2017, and thereafter became a housewife following the elder son’s diagnosis of ADHD.  Although she resumed work in March 2022, earning about HK$25,000 per month, she was dismissed in April 2023 after being diagnosed with breast cancer and had to undergo a series of treatments.  She has been unemployed since then.

7.The former matrimonial home in Southern District (“FMH”) was registered in the Husband’s sole name, and is now subject to mortgage.  The Wife’s claimed expenses in her first Form E and updated Form E were prepared on the basis that she and the children would continue to reside in the FMH rent-free.

8.On 13 January 2026, HHJ Own directed the parties to file and serve section 7 Affirmation within 28 days, i.e. by 10 February 2026.  The Judge also directed that all further interlocutory application shall be filed within 28 days.  On 9 April 2026, DDJ Lee granted an extension of time to the Wife to file the section 7 Affirmation by 23 April 2026.

9.At the Pre-trial Review on 28 April 2026, I made an “unless” order for the Wife to file and serve the section 7 Affirmation by 4 pm on 12 May 2026.  I also directed that the trial on ancillary relief to commence on 12 October 2026 with 4 days reserved, with the 2^nd PTR to be heard on 10 August 2026.

10.The Wife filed the section 7 Affirmation on 12 May 2026 (“the 1^st Affirmation”).  By my Order dated 10 August 2026, the 1^st Affirmation was expunged, and the Wife was directed to file a redacted version to remove the contents concerning expert evidence (see [2026] HKFC 144).  The redacted version of the 1^st Affirmation was filed on 24 August 2026.

11.The Wife took out the Summons on 5 August 2026 seeking leave to take out late interlocutory application for the filing of the 2^nd Affirmation.  The hearing was originally scheduled for 3 September 2026.  Both parties agreed that the hearing can be brought forward to be dealt with at the 2^nd PTR on 10 August 2026.  I directed the parties lodge their respective written submissions and that the Summons will be disposed of on paper.

Legal principles

12.As regards the legal principles to deal with late application to introduce new evidence, Coleman J. (as he then was) has this to say in the judgment of Chu Hsiao Chiu Alias Chu Tony Chu Hsiao Chiu Alias Chu Hsiao Chiu, Deceased v Ma Jinrui Ma Ming And Another [2020] HKCFI 942 at §§18-21:

“ 18. It is well-established in the ‘post-CJR era’ that the underlying objectives emphasise not only substantive but also procedural fairness.  Therefore, late or last-minute applications trigger the Court’s expectation that the applicant will provide a full account of the lateness of the application, and full justification as to why the application should be entertained at all at such a late stage.

19. There is no longer room for the notion that delay, even though inordinate and unexplained, will be forgiven as long as there is no prejudice and costs are paid.  Courts should take into account that there may be an irreparable element of unfair prejudice in unnecessarily delaying proceedings.  Further, the vacation or adjournment of the hearing occasioned by last-minute applications may mean the loss of the hearing day which could have benefited other litigants, and inefficiencies in the use of Court time, which is a public resource. Hence, late applications can be dismissed on the basis of lateness alone.

20. Further, whilst the ultimate concern of the court is to achieve a just resolution of the case, it does not mean that a party should be permitted to raise any arguable case at any point in the proceedings, simply on payment of costs.  If a party has been afforded a reasonable opportunity to advance its case, the just resolution of the case does not require that he should be allowed a further opportunity in spite of his own inordinate and inexcusable delay.  Essentially, the applicant making a late application is extremely unlikely to be able to rely upon self-induced prejudice.

21. Of course, each case turns on its own particular circumstances.  There may also be a real and practical difference between (a) an application to admit new evidence shortly before a trial and (b) an application to admit new evidence in the context of an interlocutory hearing.  But the underlying principles remain the same, and it is only the exercise of the court’s discretion by reference to the particular circumstances which might change.”.

13.Mimmie Chan J said the following in Converge Design and Construction Company Limited v Mount Kelly International Limited [2020] HKCFI 2433 at §§2 and 9:

“2. The courts have emphasized on repeated occasions that CJR is about early preparation for trial, in order to achieve the objectives of the Rules. It needs no further reminder that delay itself is a ground to refuse a late application, either for discovery or for the introduction of new pleadings and evidence, when trial is imminent. The onus is on the applicant to justify its delay and to show good reason for leave to be granted. Whilst delay is to be weighed against the probative value and relevance of the pleadings and the evidence sought to be introduced, it need not be emphasized further that the primary aim in the Court’s exercise of its powers is to secure the just resolution of disputes in accordance with the substantive rights of the parties. Such just resolution of disputes requires due consideration of the time occasioned by last minute applications to introduce amendments to the pleadings and/or evidence on the eve of trial. Prejudice is inevitably caused, in the disruptions in the preparation for trial, the need to consider the new evidence and the need to respond thereto, coupled with the need to locate witnesses at the last minute to consider and if necessary to respond to the new evidence, and the last minute distraction from the proper focus and priority of the due preparation for trial. This is actual prejudice.

[…]

9. As for lists of documents and discovery made on the eve of trial, it is for the litigant giving discovery at the eleventh hour to establish why the Court should exercise its discretion to permit the late discovery (Hong Lok School Limited v Chow Sai Yiu, HCA 17139/1999, 7 July 2003 and Big Island Construction (HK) Limited v Wu Yi Development Company Limited, HCA 1957/2005, 22 February 2010). Absent a good and credible explanation, by affidavit, as to why the document was not disclosed earlier, the application may be refused on the ground of delay alone. Even if there are documents hitherto disclosed, but were not referred to in the witness statements filed for trial, there should be affidavit evidence as to the use proposed to be made of the documents in question, the provenance and the maker of the document, its relevance to the issues before the Court, and the availability or otherwise of the maker of the document to attend trial for cross-examination. Clearly, this is all to ensure that the opponent in the litigation can fairly prepare for trial, and to enable the Court to properly exercise its discretion in dealing with objections from the opponent.”

14.In the case of A v. B [2025] HKCFI 1060, having considered the above two cases, Herbert Au-Yeung J. said that:

“18. Counsel for W have specifically reminded this Court that the Court’s overriding objective is to secure the just resolution of disputes in accordance with the substantive rights of the parties: Order 1A rule 2(2) of the RHC, and that the Family Court has a quasi-inquisitorial role in assessing the section 7 MPPO factors. These are of course trite. However, the fact that the Family Court (and the Court of First Instance hearing Matrimonial Cases) having an inquisitorial role does not mean that the Court has to allow late evidence to be adduced at all costs. In my view, the approaches explained in cases such as Converge Design and Construction Company Limited (supra) and Chu Hsiao-Chiu alias Chu Tony (supra) are equally applicable to such cases.”

Discussions

15.The contents of the 2^nd Affirmation can be divided into the following groups for discussions:

(a)  §§3-5: concerns the housing needs of the Wife and sons;

(b)  §6: concerns the alleged reduction of the Wife’s bank balance;

(c)  §§7-10: concerns the alleged Husband’s non-disclosure;

(d)  §§11-12: concerns the Husband’s payment through a third party;

(e)  §13: concerns the Wife’s recent discovery of the Husband’s tax return;

(f)  §§14-15: concerns the alleged Husband’s luxurious items.

§§3-5 of the 2^nd Affirmation

16.The Wife argues that §§3-5 of the 2^nd Affirmation serves to update the Court on the housing needs and budget of the Wife and her two sons.  The younger son was recently admitted by a College in Wanchai on 7 July 2026.  As both sons are studying in Wanchai district from September 2026, she intends to rent a property in that district to reduce their travelling time and costs. She produced a copy of the Admission Slip which asked the younger son to attend registration on 9 and 10 July 2026.

17.The Wife submits that the evidence already filed did not reflect the recent changes.  In the Wife’s 2^nd Form E dated 11 November 2025, the Wife did not include a rental budget because she and the sons were still residing rent-free in the FMH, which is held in the Husband’s sole name.  She estimated that, if she and the sons were to move out of the FMH, the rental expenses for a flat of a similar size would be about HK$15,000 per month.  In §28 of her 1^st Affirmation, she revised the estimated monthly rental expense to HK$25,000.

18.The Husband’s objections include the following:

(a)  §§3-5 of the 2^nd Affirmation sought to justify the Wife’s increase of the monthly rental costs from HK$15,000 in her Updated Form E dated 11 November 2025 to HK$25,000 as stated in her 1^st Affirmation, after the Wife had obtained legal advice;

(b)  There is no justification for the Wife to move from FMH to a place in Wanchai. The elder son has been attending school in Wanchai when the family stayed in the FMH. There is no reason why the younger son is now required to move house;

(c)  The Wife provided no justification for the increase of the rental estimate to HK$25,000 per month.  The Wife now wishes to justify this figure disguising it as an “update” when the real purpose is to strengthen her case on housing needs.

19.I agree with the Wife’s submissions that whether the Wife has a genuine and reasonable plan to move to Wanchai district with the children, whether the rental budget is appropriate and justified, and whether the Wife and the children’s housing needs could reasonably be met are matters for determination at trial subject to cross examination and closing submissions.  It is premature at this stage to go into the substantive issues.

20.I am satisfied that those paragraphs could only be emerged after the younger son has been admitted to a college in Wanchai which happened after filing of the 1^st Affirmation on 12 May 2026.  I remind myself that I have to balance all the circumstances in exercising my discretion.  I am of the view that the facts newly disclosed are relevant to the ancillary relief proceedings and the Wife should be allowed to make affirmation on this issue.  To be fair to the Husband, the Husband should be allowed to make affirmation in reply on the basis that the milestone dates will not be disturbed.

§6 of the 2^nd Affirmation

21.The Wife submits that §6 of the 2^nd Affirmation serves to update the Court on the significant reduction of the Wife’s bank balance.  By doing so, she is complying with her continuing duty to update the Court and the Husband of her financial position, particularly when there has been a material change, and in accordance with the principle that assets should generally be valued as at the date of the trial.

22.The Husband’s objections include the following:

(a)  The Wife stated in her Updated Form E (November 2025) that the bank balance amounted to HK$491,381.40.  But in her 1^st Affirmation (May 2026), the Wife reported her bank balance as HK$273,908.66 but provided no explanation for the significant drop. It was only after the Husband’s challenge of this discrepancy in his Submissions (July 2026) that the Wife sought to explain the drop in the 2^nd Affirmation by attributing it to living expenses and legal fees;

(b)  The Wife produced in the 2^nd Affirmation only two pages of account balance screenshots, one for her BOC account and one for her HSBC account.  No transaction records, no bank statements, no invoices, and no receipts were provided to substantiate the Wife’s alleged payments for living expenses or legal fees.  The BOC screenshot does not even show the date of the balance;

(c)  The Court already has the Wife’s updated figures from November 2025 (HK$491,381.40) and May 2026 (HK$273,908.66). A further “update” without any supporting transaction details adds nothing of value.

23.In this regard, I agree with the Husband’s submissions.  The screenshots produced by the Wife purported to show the bank balance of the Wife of a particular date only. The BOC screenshot does not even show the date of the balance. Those screenshots and the figures thereon do not have any probative value.  The parties have been afforded reasonable opportunity to advance their respective case by filing of updated Form E and section 7 affirmation.  They have already done so by filing the updated Form E and affirmation.  A just resolution of the case does not require a further opportunity for the Wife to make this last-minute disclosure.  This paragraph should not be allowed.

§§7-10 of the 2^nd Affirmation

24.§§7-10 of the 2^nd Affirmation concerns the correspondence between solicitors in respect of the Wife’s request for the disclosure of the Husband’s insurance policies, MPF plan and bank or credit card statements.  The Wife wishes to exhibit full set of solicitors’ correspondence to show the complete picture of the alleged Husband’s non-disclosure in this regard.

25.The Husband’s objections are that:

(a)  In the Husband’s Solicitors letter dated 13 July 2026, the Husband already admitted that he was the registered owner of Sunlife MPF and that his failure to disclose the same was his inadvertent mistake;

(b)  The Husband’s Prudential policies were medical insurance policies which were irrelevant to the AR proceedings;

(c)  The Husband’s Solicitors have already informed the Wife that the credit card ending 4803 has been cancelled, the bank account ending 94668 did not belong to the Husband, and bank account statement ending 505 has been disclosed.

26.As I see it, the real issue is not whether the Husband is or is not the owner of the various accounts, but whether the Husband has discharged his duty of disclosure.  The correspondence in question were made after the 1^st Affirmation, and the contents of the correspondence are relevant to whether the Husband has discharged his duty of disclosure.  The Wife is entitled to rely on the correspondence to cross examine the Husband on the alleged material non-disclosure.

§§11-12 of the 2^nd Affirmation

27.§§11-12 of the 2^nd Affirmation relates to the Husband’s payment of interim maintenance through a third party, not from his own personal account. The Husband has never explained this peculiar arrangement. The Wife in fact knew that the Third Party was a close colleague of the Husband, and that the Husband told her there was a private financial arrangement regarding their respective commissions. The Wife suspected that the Children Maintenance was in fact part of the Husband’s commission, concealed to hide his actual income.

28.The Husband submits that the two paragraphs should be refused because the transfer of Children Maintenance through the Third Party has been happening at least since November 2024, and the Wife is fully aware of that.  In fact the Wife has already mentioned the Third Party in her 1^st Affirmation.  Further, the Husband argues that the Wife’s suspicion about the Husband’s commission is purely speculative.

29.I consider that the Wife failed to explain why those two paragraphs could not have been included in her 1^st Affirmation.  In any case, the Wife could cross examine the Husband at the trial as to why the Children Maintenance was paid by bank transfer from the Third Party.  Those two paragraphs in the 2^nd Affirmation are unnecessary and should not be allowed.

§13 of the 2^nd Affirmation

30.§13 of the 2^nd Affirmation states that the Wife recently discovered an employer’s return of remuneration and pensions for the year from 1 April 2017 to 31 March 2018 (“Tax Return”), which showed that the Husband earned an annual income of HK$931,512 from the same company for which he now works.

31.The Wife’s position is that the Husband’s income during the marriage was around HK$80,000 to HK$90,000 per month.  That was stated in §61 of her 1^st Affirmation. But, at the time when preparing her 1^st Affirmation, she could not locate any document to support that assertion. There is no reason why, as the Wife argues, she should not be permitted to rely on the Tax Return, which she discovered only recently, to substantiate it. The Tax Return also lends support to the credibility of the Wife’s evidence in this regard.

32.The Husband’s objections are that:

(a)  The Wife provided no explanation as to when it was found, why it could not have been located earlier. The Tax Return has all along been in the FMH, in which the Wife has been staying;

(b)  The Husband has provided full and contemporaneous documentary evidence of his income, including tax returns between 2021 and 2024, and the staff salary receipts issued by his employer between December 2022 and February 2023. These documents show that since 2021, the Husband’s income has been approximately HK$20,000 per month.  There is nothing to support that a single Tax Return concerning the income 8 years ago can be used to impute an earning capacity that is inconsistent with years of contemporaneous documentary evidence.

33.In reply, the Wife says that the Tax Return could lead to train of inquiry which is plainly relevant to the Court’s consideration under s.7 MPPO: Why did H’s earnings fall so substantially while he continued to work for the same company?  Was the reduction genuine, or was it engineered to conceal his ability to pay? If the Husband genuinely earns only HK$20,000 per month, should he seek alternative employment having regard to his former income level and alleged expenses?

34.I agree with the Wife that, apart from the monthly earnings of the Husband, his earning capacity is also in issue.  In exercising my discretion and balancing all relevant factors, I will allow the Wife to rely on this paragraph and the Tax Return.

§§14-15 of the 2^nd Affirmation

35.§§14-15 of the 2^nd Affirmation sought to disclose a receipt for a Rolex Deepsea watch purchased in March 2016 and various social media photographs allegedly showing the Husband wearing luxury watches and accessories with their listed prices online.

36.The Husband criticizes that:

(a)  Given that the receipt has been at FMH all along, the Wife provided no explanation as to when it was found, why it could not have been located earlier;

(b)  The Wife fails to disclose the source of the photographs, nor is there any evidence that the alleged luxury watches and accessories were genuine rather than replicas;

(c)  The Wife has merely attached screenshots from a third party’s social media account and superimposed her own labels and valuations listed on the “official websites” upon them.

37.The Wife invites the Court to consider that had she been permitted to prepare a further questionnaire, she should be entitled to ask the following questions with reference to the photos: whether H owned the valuable personal items shown in the relevant photos?  If he did, what are their estimated values? If he did not own them, why was he wearing them?

38.I do not think that the Wife is entitled to raise the above question as claimed.  First, there is no direction to allow the Wife to file a further questionnaire.  Second, I accept the Husband’s argument that the source of the photos was unknown, and the receipt and the photos do not have evidential value.  Third, I am of the view that the Wife’s suggestion that the Husband could have filed an affirmation stating on oath that the items did not belong to him or that he was wearing replicas has missed the point because if the question should not have been asked in the first place, an affirmation to refute this will serve no purpose but to escalate the legal costs.  Those two paragraphs should not be allowed.

Conclusion

39.Including the introduction paragraphs (i.e. §§1-2), the Wife is entitled to rely on §§1-5, 7-10, and 13 of the 2^nd Affirmation together with the exhibits referred to in those paragraphs.  I note that the 2^nd Affirmation was only attached to the Summons, and the said affirmation has not been formally filed into Court.  The Wife should prepare a fresh 2^nd Affirmation to include only §§1-5, 7-10, and 13 (with the paragraphs renumbered) together with the exhibits referred to in those paragraphs, and the contents thereof should be identical to those attached in the Summons.

40.Since the Wife is partly successful in her application while the Husband successfully resists some of the paragraphs, I will make an order nisi that there be no order as to costs.

41.I hereby order that:

(a)  Notwithstanding paragraph 4 of the Order dated 13 January 2026, leave be granted to the Respondent to take out the Summons dated 5 August 2026 (“the Summons”).

(b)  The Respondent shall file and serve a fresh 2^nd Affirmation which shall only include §§1-5, 7-10, and 13 of the 2^nd Affirmation (together with the exhibits referred to in those paragraphs) as attached to the Summons on or before 25 September 2026.

(c)  The Petitioner shall file and serve an affirmation in reply, if any, on or before 2 October 2026.

(d)  Notwithstanding paragraph 3 of the PTR Order dated 10 August 2026, the Petitioner shall lodge into the Court and serve on the Respondent updated Trial bundle (in both physical and searchable electronic format) on or before 2 October 2026.

(e)  There be costs order nisi that no order as to costs is made in respect of the Summons.

(f)  The Petitioner’s own costs be taxed in accordance with the Legal Aid Regulations.

Ms. Cyndi Ho instructed by C.Y. Chan & Co., assigned by Director of Legal Aid, for the Petitioner

Mr. Cyrus Lau instructed by Keith Lam Lau & Chan for the Respondent