Ann Virginia Hotung v. Joseph Edward Hotung

Case No.

Court

Date—

Judge—

Case Document

100%Judiciary

HCMC000053A/1980

1980 No. 53

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

DIVORCE JURISDICTION

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BETWEEN
	ANN VIRGINIA HOTUNG	Petitioner
	and
	JOSEPH EDWARD HOTUNG	Respondent

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Coram: Hon. Fuad J. in Chambers

Date of Judgment: 9th December 1980.

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ORDER

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1. The application which is before me today arose in this way. The petition filed by the wife on the 27th June this year, contained (as required by rule 68 of the Matrimonial Causes Rules) an application for ancillary relief, including maintenance pending suit, periodical payments, secured provision and a lump sum. Since the wife wished to proceed with the application, notice in the usual form dated the 14th July, was served upon the husband. The notice required the husband to file an affidavit of means. No such affidavit was filed within the 14 days allowed, and the wife duly applied for an Order under rule 73(2) of the Rules. On the 30th September, for the reasons that I gave, I made the Order sought, and on the 7th October the husband filed an affidavit which was in the following terms:-

"	1.	I have net realizable assets of or in excess of US$100 million and a commensurate income.
	2.	I am advised by my lawyers that in the circumstances there is no requirement for me to give any greater detail nor for me to quantify my assets with any greater particularity (which would in any event take me many months to do) since the above assets are more than sufficient to satisfy any order which this Honourable Court might reasonably make."

2. When, in October, I was dealing with other applications arising out of these proceedings, Mr. Swinton Thomas, who appears for the wife, raised the issue of the sufficiency of the affidavit, and when Mr. Robert Johnson, for the husband, said that he had not come prepared to argue that issue, the matter was stood over by consent. In the meantime, a formal application was filed for an Order "that the respondent do file an affidavit of means or alternatively a further affidavit in accordance with the provisions of Rule 73(2) of the Matrimonial Causes Rules," and this is the application upon which I have to reach a decision.

3. Mr. Swinton Thomas supported his application on a number of grounds:-

(i)	that rule 73(2) was clear and was binding on the husband;
(ii)	that the extent of his income and property was hightly relevant to enable the court to make just and proper financial provision for the wife when the time came, in accordance with the matters to which the court is required to have regard under s.7 of the Matrimonial Proceedings and Property Ordinance;
(iii)	that an affidavit, giving full particulars of the husband's assets, was vital to enable the wife's case to be properly conducted and for her to be properly advised;
(iv)	that there existed no authority, in Britain or Hong Kong, that could support a contention that any person, whether on account of extreme wealth or any other reason, could be excused from compliance with the Rules; and
(v)	that the court had already made an Order directing an affidavit of means to be filed and, in those circumstances, the husband had three courses open to him, none of which he had pursued, namely-

	(a)	to comply with the Order;
	(b)	to ask for more time; or
	(c)	to appeal against the Order.

4. Mr. Johnson submitted that the Court's Order had been complied with, for an affidavit of means had indeed been filed. If the Court were to hold that such was not the case, then there was a discretion whether to order a new affidavit or further particulars or not, and that discretion should not be exercised in the wife's favour because the information contained in the affidavit of the 7th October was amply sufficient in the particular circumstances of this case to enable the Court to deal with the issues that were relevant to the decision which would ultimately need to be made.

5. It is necessary I think to set out the relevant statutory provisions. Paragraph (2) of Rule 73 of the Matrimonial Causes Rules is in the following terms-

"(2) Where a respondent spouse or a petitioner is served with a notice in Form 8 or 9 in respect of an application for ancillary relief, not being an application to which rule 74 or 75 applies, then, unless the parties are agreed upon the terms of the proposed order, he shall, within 14 days after service of the notice, file an affidavit in answer to the application containing full particulars of his property and income, and if he does not do so, the court may order him to file an affidavit containing such particulars."

Subsection (1) of s. 7 of the Matrimonial Proceedings and Property Ordinance is as follows-

"7. (1) It shall be the duty of the court in deciding whether to exercise its powers under section 4 or 6 in relation to a party to the marriage and, if so, in what manner, to have regard to the conduct of the parties and all the circumstances of the case including the following matters, that is to say-

(a)	the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
(b)	the financial needs, obligations and responsibilities which each of the parties to the marriage had or is likely to have in the foreseeable future;
(c)	the standard of living enjoyed by the family before the breakdown of the marriage;
(d)	the age of each party to the marriage and the duration of the marriage;
(e)	any physical or mental disability of either of the parties to the marriage;
(f)	the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;
(g)	in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring."

6. It is to be noted that while that subsection begins in almost identical terms to subsection (1) of s.25 of the United Kingdom Matrimonial Causes Act 1973, in the Hong Kong statute, the requirement in the United Kingdom Act that the Court should strive "to place the parties, so far as is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other" is omitted. Of course, this omission can be no accident and the difference will need to be borne in mind at the appropriate time. I need only say here that I do not consider that it has any real bearing on the application before me.

7. In resisting the application, Mr. Johnson submitted that there were in essence two types of case - the "contribution" type of case and the "need" type of case. Here the wife had made no contribution whatever to the building up of the husband's great wealth and so the "contribution" consideration was irrelevant. As to her needs, while it would be right for the wife to be treated justly, and even generously, against the background of the husband's enormous riches, these needs could be assessed, without further details, from the information already before the Court. It would be a protracted and expensive exercise to attempt to go into the sort of detail envisaged by Mr. Swinton Thomas, and such an exercise was wholly unnecessary in all the circumstances. I think it should be said, at this stage, that on the material before me, I feel it would be quite wrong to dismiss out of hand considerations, so far as they may be relevant, of any contributions of the kind referred to in paragraph (f) of subsection (1) of s.7 of the Matrimonial Proceedings and Property Ordinance, that the wife may have made.

8. Mr. Johnson argues that on the facts of this case it could not be that the Court would need to decide the total value of the family assets, for the Court would not consider it appropriate to award the wife a fixed proportion of these assets, or to divide them by a fraction to reach the right figure. It was essential, in his submission, for the Court to view the present application in the light of the issues involved. The issue here, essentially the legitimate needs of the wife (albeit against the background of huge wealth) could be resolved without the need for further particulars regarding the husband's assets. Mr. Johnson cited a number of authorities on interrogatories and discovery to indicate the approach of the courts to requests for information or material not essential for a fair decision to be reached in civil proceedings. There can be no doubt about the principles applied by the courts in this area of the law of procedure and, if I may say so with respect, the cases cited were merely examples (although it must be said, good examples) of the application of these principles in particular circumstances.

9. Mr. Johnson suggested that the time had come for the Court to step in and stop the wife from pursuing a course of action that found no support in the authorities and was not sanctioned by statute law.

10. While absolving the husband of any possible suggestion that he was being defiant in filing an affidavit in the form which is before me, and accepting without question that neither he nor his advisers seek to advance the proposition that his immense wealth entitles him to any special indulgence, in my judgment it cannot be said, by any stretch of the imagination, that his affidavit complies with the requirements of the law. It does not begin to give "full particulars of his property and income" as stipulated by paragraph (2) of rule 73 of the Rules. The Court, in deciding the form and extent of the financial provision that should be made for the wife (in the unhappy event of no agreement being reached) has, of course, a wide discretion. But the discretion is not at large - it is governed both by statute and, to an extent by authority, and in my view, Mr. Swinton Thomas was right in submitting (particularly in the context of a lump sum order, the form of order that is most likely to suit the circumstances of this case) that the first task of the Court will be to make a realistic estimate of the means of each of the parties; in effect, of the family assets. I also accept that the Court will need to know not only what are the assets but what are their worth. Even where very great capital is possessed the income of the husband (about which nothing has been said) cannot be irrelevant. Indeed this is one of the matters to which the Court is required to have regard under the statute. Unless matters such as these are adequately dealt with in an affidavit of means, I agree that the Court will have no starting point, whatever modifications are made to the guidelines laid down by the authorities, and whatever be the approach ultimately adopted by the Court to reach a just and reasonable conclusion on financial provision, in the special circumstances created by the husband's enormous riches. Such wealth may well make the "one-third rule" inappropriate, and the Court might not arrive at the amount to be awarded by a calculation based on a proportion of the husband's total assets, but it seems to me that it is essential, if the Court is to do its duty in the way the statute enjoins, for as reliable an account, as the circumstances allow, of the assets of each party, and their worth, to be before the Court.

11. There is much force, too, in the submission made on behalf of the wife, that a full and frank disclosure by the husband is essential before she can be properly advised in negotiations that might lead to a compromise, or in the stand she should take if the matter is litigated to a conclusion.

12. It would be wrong not to recognize the very considerable expense and effort that would need to be expended if the husband were to be required to file an affidavit in the form urged by the petitioner. I can understand, too, the reluctance of a man with world-wide interests and a great fortune, to reveal more about his affairs than he need. However, these are not considerations that can have any weight, if my view of the law be correct. At least it can be said that the husband has the means to employ the best professional help (and by this I mean accountants, valuers and the like) that is available.

13. It will have been seen that I have been content to rest my decision on the wording of the relevant statutory provisions. I hold that the affidavit sworn and filed on the 7th October does not contain full particulars of the deponent's property and income and, in my judgment, the affidavit falls so far short of complying with the provisions which founded my Order of the 30th September, as to be, in effect, no affidavit of means at all. I therefore grant the application and order that a further affidavit be filed of the kind contemplated by rule 73(2) of the Rules. I do not think it to be either appropriate or necessary for me to attempt to spell out into what detail the affidavit should go. So long as my Order stands, it will be for the husband's advisers to advise him on this matter, in the light of the views I have expressed above. Of course, the parties are free to agree to any exceptions or limitations to the particulars required if they so chose.

14. I will now hear counsel on costs and the date on or before which the fresh affidavit should be filed.

	(K.T. Fuad)
	Judge of the High Court

Representation:

Mr. Swinton Thomas, Q.C. and Mr. A. Allman-Brown (Hampton, Winter & Glynn) for petitioner

Mr. Robert Johnson, Q.C. and Mr. G. Rodeay (Johnson, Stokes & Master) for respondent