LM v. PK, H

FCMC 7076 / 2022

[2025] HKFC 63

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO.7076 OF 2022

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J U D G M E N T

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A. The Application before the Court

1.  By her summons (“the Summons”)  dated the 19^th of August 2024 the Petitioner Wife (“the Wife”)  seeks an order for specific discovery from the Respondent Husband (“the Husband”).

2.  The particulars sought as set out in Schedule A to the Summons have been condensed since the date of application, including during the hearing on 4 and 5 December 2024.

3.  The finalised schedule (“Schedule A”)  was attached to the Wife closing submission dated 10 January 2025 with the Husband’s updated position in his closing.

B.   Introduction

4.  The Wife is aged 36, the Husband 42. By the time the Parties met in 2014 they had each garnered much wealth and professional success; the Wife was president of a publicly listed company, and the Husband had set up his own asset management business (“AM business”)  the shares of which he held through a BVI company.

5.  The Parties commenced co-habitation in March 2019, soon thereafter the Wife discovered she was pregnant, and marriage arrangements were then formulated.

6.  In April 2019 the Parties scheduled their marriage banquet at a prodigious hotel in Hong Kong for 12 July 2019.

7.  In May 2019 the Parties corresponded through their then solicitors as to the terms of a pre-nuptial agreement (“the PNA”).

8.  On 13 June 2019 the Husband set up a Family Trust (‘the Trust”)  and transferred his shares in AM business into the Trust.

9.  On 14 June 2019 the Parties signed their PNA prior to their marriage in Hong Kong on 12 July 2019.

10.  Their son was born on 21 November 2019 (“the Child”).

C.   Chronology of the proceedings

11.  On 4 August 2022, the Wife filed her petition for divorce. A First Appointment was listed for the 18 October 2022; in accordance with Practice Direction 15.11 the Parties were to file and exchange their Form Es 28 days before the First Appointment; the Wife filed her Form E on 20 September 2022, the Husband filed his on 5 October 2022.

12.  By the consent order of 19 September 2022, the petition was amended resulting in a consensual decree nisi being pronounced on the 7 February 2023. On the 31 March 2023 a consent order was made whereby the Parties have the joint custody of the Child, with care and control to the Wife and access to the Husband.

13.  On 10 October 2022, the Wife filed a summons seeking maintenance pending suit, interim periodical payments for the Child and litigation funding (“the Wife’s MPS application”).

14.  On 5 December 2022, the Husband filed a summons (the “Crossley Application”)  for the Wife to show cause why she should not be bound by the PNA.

15.  The Wife’s MPS application was heard on 22 September 2023, judgment was given on 22 March 2024 and on 16 August 2024 the Family Court gave leave to the Husband to appeal such judgment; the appeal is listed for 13 May 2025.

16.  Following a directions hearing on the 27 April 2023, the following matters were adjourned to the 1^st Case Management Hearing (“1^st CMH”)  on 31 July 2023:

i)  The Wife’s intended amended discovery summons

ii)  The Husband’s Imerman summons

iii)  The Husband’s Crossley Summons

iv)  The First Appointment

17.  Inter alia the following orders were made at the 1^st CMH on the 31 July 2023:

i)  Amended Discovery Summons adjourned to the 2^nd CMH on 3 October 2023; the Husband to file an updated Form E within 28 days (28 August 2023); costs to the Wife with certificate for two counsel.

ii)  Crossley Summons adjourned to the 2^nd CMH; “pending the Court’s decision on whether there will be a preliminary issue, the dates on 3,4,7 to 9 October 2024 be reserved for the hearing of the Crossley Summons”.

iii)  The amended Imerman Summons be adjourned sine die with liberty to restore.

18.  The Husband filed his updated Form E on 12 September 2023.

19.  Inter alia at the 2^nd Case Management Hearing (“2^nd CMH”)  on 3 October 2023 the following orders were made:

i)  The Wife to file and serve a questionnaire on the Husband’s updated Form E within 28 days (31 October 2023)

ii)  The Husband to file his Answer 42 days thereafter (31 December 2023)

iii)  The Wife be given leave to file an additional discovery summons within 42 days thereafter

iv)  The Wife’s amended discovery summons be set down for argument on 18 April 2024 with 1 day reserved.

20.  On 9 January 2024 the Husband filed his Answers to the Wife’s questionnaire.

21.  In the context of settlement discussions, the Parties filed a consent summons on 12 April 2024 which was endorsed as a consent order on 16 April 2024 which, so far as discovery, adjourned the hearing fixed on 18 April 2024 “to a date to be fixed not earlier than 31 May 2024, in consultation with Counsel’s diaries, with 2 days reserved”.

22.  Settlement discussions did not bear fruit and following the Wife’s summons of 19 August 2024, on 29 August 2024 the court made, inter alia the following orders, as to the conduct of the Wife’s “Specific Discovery Application”:

i)  The Specific Discovery Application to be listed for 4 and 5 December 2024

ii)  The Husband to file his affirmation in opposition by 10 October 2024

iii)  The Wife to file her reply by 7 November 2024

iv)  The Trial listed for 3, 4, 7 to 9 October 2024 be vacated

v)  The Husband’s Crossley Summons filed on 5 December 2022 be adjourned sine die after the decision on the Wife’s Specific Discovery Application.

23.  Therefore, for the avoidance of doubt, the only application which is the subject matter of this judgment is the Wife’s Specific Discovery, the Husband’s Imerman and Crossley Summonses having been adjourned.

D.  The Parties’ respective positions

24.  The Wife’s case as summarised in her Counsel’s opening:

§2   The Wife seeks an order requiring H to, within 28 days from the date of the order, make an affirmation:

1.1.  Stating whether the Respondent has in his possession or has at any time had in his possession, custody or power the documents set out in Schedule A (annexed to the Summons); and if not, when the Respondent parted with the same and what has become of the same.

1.2.  Providing answers (including all relevant information and documents)  to the interrogatories contained in Schedule A as annexed hereto.

§6    The Wife “seeks discovery in respect of these ancillary relief proceedings”

§9 … “Indeed most of the documents W now seeks by way of summons are documents H should have provided years ago, together with his first Form E”.

25.  The Husband’s case, in response as summarised in his Counsel’s opening:

§2   “W attempts to frame her case on the basis of general ancillary relief proceedings with flagrant disregard for the existence of a prenuptial agreement dated the 14^th of June 2019 that the parties freely entered into with the benefit of independent legal advice”

and

§74   “In light of the above facts and in line with the costs-saving approach adopted in Crossley, S v S and L v F, supra, the discovery that the Court should order at this stage should be limited to what is strictly necessary to determine the Crossley Summons.  To do otherwise (as suggested by W’s counsel)  would be tantamount to prejudging the Crossley Summons, which would be unfair to H.”

E.  The relevant Law and applicable principles

26.  Both Counsel assisted the court with various authorities as to disclosure. In addition to which I consider it relevant to have in mind an overview of the ancillary relief procedure.

27.  The procedure for ancillary relief is set out in Practice Direction 15.11 (“PD 15.11”)  which came into force on 29 December 2003. The unequivocal intention of which was to “reduce delay, facilitate and encourage settlements, limit costs incurred by parties to the proceedings and provide the court with much greater control over the conduct of proceedings than at present exists”

28.  As to “Application and extent” PD 15.11 states as follows:

“2. The procedure under the Practice Direction will apply to all ancillary relief Applications and any related Custody Application, other than claims for nominal maintenance or in cases where the parties have reached agreement on ancillary relief, where the Petition or Joint Application is filed on or after the 29^th December 2003 or, any subsequent Answer or Application for ancillary relief in matrimonial proceedings.

3. The Practice Direction provides for an early First Appointment at which directions will be given with the objective of defining the issues and saving costs. Provision is made for there to be a Financial Dispute Resolution ("FDR")  hearing where proposals for resolving the Application can be discussed in circumstances of privilege. The extent of discovery will be limited. Written estimates of costs will be required to be provided at each hearing so that the parties are fully aware of the costs that are being incurred in the proceedings.”

29.  The front passage of Form E gives clear and precise guidance to the deponent as to the duty of disclosure and the consequences of failing to make disclosure  :

“Please fill in this form fully and accurately.  Where any box is not applicable write “N/A”.  You have a duty to the court to give a full, frank and clear disclosure of all your financial and other relevant circumstances.

A failure to give full and accurate disclosure may result in any order the court makes being set aside and an order for costs being made against you.

If you are found to have been deliberately untruthful, criminal proceedings for perjury may be taken against you.

If there is not enough room on the form for any particular piece of information, you may continue on an attached sheet or paper.

Attach documents to the form where they are specifically sought and you may attach other documents where it is necessary to explain or clarify any of the information that you give.

This statement must be sworn or affirmed before a solicitor or a Commissioner for Oaths before it is filed with the Court or sent to the other party.

Important: You are recommended to obtain independent legal advice before completing this form.”

30.  Shortly after PD 15.11 Hon Lam J (as he then was)  delivered the seminal judgment in L v L [2005] 1 HKFLR 121 on 18 November 2005:

“198. It is high time that litigants in matrimonial proceedings and those advising them should appreciate that affirmation of means and answer to questionnaire are not a game of hide and seek. Too much legal costs and judicial time had been spent on such wasteful exercise. As stressed by Mr Mostyn, the onus falls squarely and fairly on a party to give full and frank disclosure of his or her own means. To adopt a wait and see approach with a hope that the opponent might fail to ask the right question is a tactic to be deplored. That by itself is a breach of the positive duty to give disclosure. As Coleridge J put it recently in J v V [2004] 1 FLR 1042, “all cards must be put on the table face up at the earliest stage if huge costs bills are to be avoided.”

31.  In her recent Judgment HHJ Grace Chan emphasised how disclosure should be made in BC v MSH (Ancillary Relief) [2024] 1 HKLRD 441.

“63. Fourth, as to how the disclosure should be made, Recorder Cheng SC explained at [20]-[21] in Katherine Ching Yip v Horst Joachim Franz Geicke (HCA 676/2016, [2016] HKEC 2446, 9 November 2016), that the disclosure must be "full, frank and clear", and "to give a presentation that is immediately understandable by a solicitor of average financial sophistication":

[20] As to how a disclosure should be made, Deputy High Court Judge Nicholas Mostyn QC stated in GW v RW that it not only has to be full and frank but also clear so that it would be understandable by the other party:

 'Moreover, when a person's financial affairs are complicated it is incumbent on him, as part of the duty of full, frank and clear disclosure to give a presentation that is immediately understandable by a solicitor of average financial sophistication. It is no good to present very complex material in such a way that only an accountant of enormous financial acumen can understand it. … It cannot be emphasised often enough in these cases that a party's obligations of disclosure are not confined to providing the information and documents prescribed by Form E and as ordered by the court in response to a questionnaire. There is a continuing duty to provide, without being asked, new information and documents that may affect the exercise of the statutory discretion.' (Emphasis added )”

32.  The obligations and duties as to disclosure in “all ancillary relief Applications” have therefore been well settled for over 20 years as recently succinctly summarised by His Honour Judge I. Wong in LNE formerly known as LKPBB v CKLM [2024] HKFC 73:

“62. I summarize the guidance below:

(1) The court’s role in ancillary relief proceeding is inquisitorial.

(2) Parties have the duty to give full and frank disclosure.

(3)  Unlawfully obtained documents/information, subject to the questions of privilege and relevance, are admissible.

(4)  The court has the power to exclude admissible evidence if satisfied that it is in the interest of justice to do so.

(5)  In considering whether to exclude admissible evidence, the court has to carry out a balancing exercise.

(6) In doing so, the court is guided by what is “necessary for disposing fairly of the application for ancillary relief or for saving costs”, the importance of evidence, “the conduct of the parties” and other relevant factors.”

33.  It is however the Husband’s case that his duty of financial disclosure must be seen in the context of his Crossley Application:

“§49 It is stated in Rayden and Jackson on Relationship Breakdown, Finances and Children [R#6] (September 2020)  at para [13.104]:

“In financial remedy proceedings, disclosure and discovery begins with service of the Form E and the documents which are required to be attached to the Form E, and any other documents necessary to explain or clarify any of the information contained in the Form E. Thereafter, disclosure and discovery is by means of a questionnaire served in advance of the First Appointment and considered by the court at that appointment, and, if the court gives permission, by further questionnaire at a later stage of the proceedings. Questionnaires can, like interrogatories, request information as well as seek production of documents. As part of its case management role, the court should regulate the extent of the discovery of documents so that the exercise is proportionate to the issues in question, and to ensure that the discovery process does not become a fishing expedition approved by the court.” (emphases added)”

and

“§57. In respect of the extent of disclosure required at the time of negotiation of a prenuptial agreement, the following observations that Mostyn J made in BN v MA, supra regarding §69 of Radmacher, supra, are apt:

“30…The question is whether the husband here gave sufficient disclosure, and it is important to understand that the disclosure in question, as the Supreme Court pointed out in paragraph 69, is that which is necessary to permit the party to reach a decision that is material. As the Supreme Court put it, “What is important is that each party should have all the information that is material to his or her decision”. That does not require “full and frank disclosure”…; it requires only a sufficiency of disclosure to enable a free decision to be made.

…

32…it must be the case, surely, that one would not need really very much disclosure in order to justify as fair the level of provision to be made in a prenuptial agreement in the event of the marriage ending within two years where all the assets in question can properly be characterised as non-matrimonial…”

34.  The circumstances of Crossley [2008] 1 FLKR 1467 were as follows:

i)  The Husband aged 62, had been married once before and had had a long-term previous relationship resulting in four children.

ii)  The Wife was 50, had been three times previously married and had three children

iii)  At paragraph 5 the judge at first instance Bennett J is recorded as stating:

“I think the Form Es should be completed without documents, without questionnaires, and in the Form Es it can be explained why the prenuptial agreement is or is not what I would call a knockout blow. The first appointment will be adjourned to the hearing in front of the High Court hearing the application of Mr. Marks”

iv)  At paragraph 15 Lord Justice Thorpe giving the lead judgment stated:

“All these cases are fact dependent and this is a quite exceptional case on its facts, but if ever there is to be a paradigm case in which the court will look to the prenuptial agreement as not simply one of the peripheral factors in the case but as a factor of magnetic importance, it seems to me that this is just such a case.”

35.  At §61 of his submission the Husband  records that in L v F [2023] HKFC 108  “the Court ordered the wife’s Crossley application to be heard after the exchange of Forms E with disclosure of only bank and credit card statements without the filing of further affirmations or questionnaires.”.

36.  Significantly both in Crossley and L v F prior to the filing of Form Es, the court determined whether or not to truncate the Form E, whereas in the present case the Husband unilaterally without leave filed a truncated Form E.

37.  Bearing in mind the Court’s order of the 29 August 2024 that Husband’s Crossley Summons filed on 5 December 2022 be adjourned sine die after the decision on the Wife’s Specific Discovery Application I do not accept the Husband’s contention that:

“§74…the discovery that the Court should order at this stage should be limited to what is strictly necessary to determine the Crossly Summons…”

Analysis

38.  I consider the starting point is to evaluate the Wife’s application for Specific Discovery by reference to the duty of disclosure as set out in PD 15.11 and prescribed in Form E.

39.  The Husband’s 1^st Form E was filed on 5 October 2022; it should have been filed 28 days prior to the First Appointment listed on 18 October 2022 namely 20 September 2022.

40.  A Form E sets time periods from which disclosure should start, I estimate the approximate dates in this case are as follows :

i)  §2.3 Bank accounts “within the last 12 months” :  September 2021

ii)  §2.4 Shareholding/beneficial interest in private companies “Attach copies of the last 2 years’ audited/unaudited financial statements and any other documents on which you base your valuation.” : September 2020

iii)  §2.5 Directorships hold or held in the last 24 months : September 2020

iv)  §2.6 Businesses “Attach copies of the last 2 years’ audited /unaudited financial statements and any other documents on which you base your valuation”: September 2020

v)  §5.1 “State whether there has been significant change in your assets during the last 36 months, including any assets held outside Hong Kong”. September 2019

41.  The Parties married on the 12 July 2019, separated  in April/July 2022, with the Wife’s Petition being  filed on 4 August 2022 and a decree nisi being pronounced on 7 February 2023; the marriage was therefore of a short duration of @ 3 years .

42.  It is of relevance to note that paragraph 5.1 of Form E requires disclosure of any significant change in assets during the last 36 months which is only slightly shorter in duration from the date of the PNA, 14 June 2019 to date of the Petition 4 August 2022.

43.  By reason of the Court’s duty under section 7 of the MPPO, whether the Crossley application is a standalone application or not, it will be necessary for the Court to have a broad understanding of the Parties’ assets at the time of the PNA as well as at the time of the FDR and or ancillary relief trial.

44.  The Wife’s various requests for discovery back to 2019 arise in part due to the significant dispute as to the PNA and whether or not the Husband properly and adequately disclosed his assets at the time of negotiating the PNA in May 2019 prior to its execution on 14 June 2019.

45.  Rather than addressing this question on a piece meal basis through categories of disclosure I consider it will assist the court and is consistent with the intention and objective of PD 15.11 for the Husband to disclose on oath his assets of substance as at May 2019 by completing (without supporting documentation)  Part 2 (2.1 to 2.13)  of Form E together with the “Summaries of assets and Liabilities.”

46.  Schedule A seeks valuation reports in June 2019 and correspondence in the past 3 years relating to five landed properties. There was discussion in the trial as to whether or not the Parties would agree valuations of the 5 landed properties. Unfortunately, agreement was not forthcoming however the Husband in his closing has now proposed valuations in respect of 4 properties : A1. Shanghai Matrimonial Home, A2.Unit 2201 A3.Ocean Drive, and A4.White House on the following basis:

“The parties do attempt to agree valuation [90] days prior to the date set down for Trial of Ancillary Relief, failing which the parties shall appoint Single Joint Expert (“SJE”)  [60] days prior to the date set down for Trial of Ancillary Relief to perform updated valuation, the costs of which shall be reserved but shall initially be shared by the parties equally.”

47.  Rather than waiting for the hearing of the ancillary relief trial, it is important that for the purposes of negotiation and any forthcoming FDR for the Parties and the Court to have available the value of landed property: in the circumstances I order that  :

i)  The Parties shall attempt to agree on the valuation of the five properties within 42 days of this judgment. If no agreement on valuation  is reached;

ii)  Leave be granted to the parties to adduce expert evidence from a single joint expert in relation to the value of the properties;

iii)  The Parties shall attempt to agree on the identity of and appoint a single joint expert within 56 days of this judgment

iv)  The single joint expert shall prepare a valuation report which shall be filed with the court

v)  The expert's fees shall be borne by the parties in equal shares initially, and such costs shall be in the cause.

vi)  Unless the court otherwise directs, the single joint expert report shall be admitted as evidence at the trial without calling the maker thereof.

vii)  In the event the parties are unable to reach agreement on the identity of the single joint expert, the parties shall each nominate, by letter to the court (copied to the other side), a single joint expert of his/her choice, and attach therewith the nominee's resume, quotation of fees and proposed date of completion of the report within 63 days of this judgment

viii)  Any party who has fails to make such nomination will be deemed to have waived his/her right to do so.

48.  These directions shall also apply to the Xi’an Property referred to below.

The disclosure sought: Schedule A

49.  As referred to above the Husband is to disclose on oath his assets of substance as at May 2019 and the Parties are to obtain valuations of the 5 landed properties.

50.  I propose to consider the disclosure sought item by item by reference to the numbering in Schedule A.

51.  Before doing so I consider it is relevant to have in mind examples of the manner in which the Husband chose to be selective in his financial disclosure, rather than complying with his obligation to make full frank and clear disclosure ensuring that “all cards must be put on the table face up at the earliest stage if huge costs are to be avoided”.

52.  In his 1^st Form E (October 2022)  he states his net assets to be HK$75,083,620.07; (approximately US$9.6 million).  At Paragraphs D, E and J of the Form E , he disclosed  HK$0 assets. These paragraphs refer to interests in private companies, business interests and other assets.

53.  In his 2^nd Form E (September 2023)  he states his net assets to be HK$141,240,992.53; (approximately US$18.1 million). His entries for paragraphs D and E remain the same, however his entry under Paragraph J is significantly different: “Interest in discretionary trust, not presently quantifiable”

54.  The total of his liabilities in his 1^st Form E is stated as “HK$193,079,176.44. The Husband repeated the same figure and described it (“as at Oct 2022)  in his 2^nd Form E dated 12 September 2023, notwithstanding that he had been ordered to file an updated financial statement on 31 July 2023.

55.  In summary I find the Husband’s financial disclosure to date to be woefully unclear and thereby inadequate.

A1.   “Shanghai Matrimonial Home”

Request A1.2.  Documentary evidence of any mortgage or loan taken out, if any;

56.  In his Closing Submission the Husband states “No mortgage had previously been taken out”.

57.  In the circumstances, it is ordered that the Husband to affirm that, if it be the case, that there has been no mortgage, charge or other encumbrance on the property since it purchase on 13 December 2018. If there has been a mortgage, charge or other encumbrance on the property since its purchase the Husband do produce details with supporting documentation including the date and manner in which the mortgage, charge or other encumbrance has been discharged; such affirmation to be filed 42 days from the date of this judgment.

A2.   “Unit 2201”

Request A2.6.  Documentary evidence of any mortgage or loan taken out, if any.

58.  In his Closing Submission the Husband states “No outstanding mortgage - documents relating to previously outstanding mortgage are not relevant or necessary”

59.  The property was purchased in December 2014. By reason of paragraph 5.1 of Form E, the Husband is to disclose any significant change in his assets for last 36 months. In the circumstances, it is ordered that the Husband to affirm that, if it be the case, that there has been no mortgage, charge or other encumbrance on the property since September 2019 to date. If there has been a mortgage, charge or other encumbrance on the property since September 2019 the Husband do produce details with supporting documentation including the date and manner in which the mortgage, charge or other encumbrance has been discharged; such affirmation to be filed 42 days from the date of this judgment.

A4.   “White House”

Request A.4.15.    A copy of all mortgages and loans taken out in respect of White House, including DBS loan of SGD31.5 million and loan from the Fu Family Trust on 28 July 2022 of US$10 million.

60.  In his Closing Submission the Husband states:

“DBS mortgage statement dated 8 October 2024 [B3/51/711-713] and loan agreement with FF Trust [B2/14/415-418] have already been produced – Part 7 of Form E only requires copy of latest statement of mortgage / other loans to be provided”

61.  The property was purchased in August 2022. The Husband valued the property gross at SGD45.5 million in both his Form E’s (October 2022 and September 2023), with an identical mortgage or charge of SGD31.5 million and a net value of SGD 14 million (HK$76,580,0000).

62.  The DBS “mortgage loan statement” produced by the Husband on 15 October 2024 runs from 1 January 2024 until 8 October 2024 showing a debit balance of SGD29,936,935.

63.  The Trust Loan Agreement attached to the Husband’s 2^nd Form E discloses a loan of US$10,000,000

64.  At this stage of proceedings and particularly prior to an FDR, I consider the Husband has provided sufficient disclosure regarding this question.

A.5   “Xi’an Property”

Request A5.21.   All valuation reports, or such other related correspondence, that have been produced in or about June 2019 and in the past 3 years.

65.  In his Closing submission the Husband states:

“No valuation has been performed since 2019.

Valuation is unnecessary, irrelevant, excessive and not what Form E requires.  W does not dispute this is ringfenced under the PNA for H’s parents’ residence [A1/14/207/46; A2/20/300/54; A2/20/318/122].”

66.  The documents to which the Husband refers at A1/14/207/46; A2/20/300/54; A2/20/318/122] are his 1^st Affirmation filed on 6 December 2022 and his 2^nd affirmation filed on 13 November 2024; they are not evidence that the Wife does not dispute this property is ringfenced under the PNA.

67.  In his 2^nd Form E filed on the 12 September 2023 the Husband valued the property at HK$21,800,000 and stated that the property is one part of his “Separate Property” under the PNA, that is reserved as the home for his parents in the Mainland “which is well known to the Petitioner”.

68.  The Husband then stated at “Note 2.2d(2)  As this property was purchased some time ago, I cannot recall the details of the purchase. Meanwhile, I am retracing the information and will provide these information when available”

69.  2.2d(2)  corresponds to the following information : Downpayment, paid by, Mortgage/legal charge, name of lender, Other loans, name of lender, Other expenses stamp & tax, paid by.

70.  In the circumstances where the Husband has already provided one valuation and has said he will provide other information it is appropriate to have an updated valuation as with the other properties.

71.  For the avoidance of doubt the fact of a valuation is not to be taken as any determination as to whether or not the property is or is not Separate Property under the PNA.

B.  H’s Accounts

Documents

Request B. 22.  Save as already disclosed, all of the personal statements in respect of all accounts, including (i)  bank (ii)  credit and debit card; and (iii)  investment accounts that H has had access to or control of in June 2019, and in the past 3 years, including but not limited to (i)  Julius Baer account no. HK9993088-01l; (ii)  Julius Baer account no. SG63883088-01; (iii)  Ningbo Bank; (iv)  Bank of China (including the Jin Mao Tower branch); (v)  DBS Bank (whether in Hong Kong, Singapore, or elsewhere); and (vi)  Goldman Sachs (whether in Hong Kong, Singapore, or elsewhere).

72.  In his closing, the Husband’s responded as follows:

“All accounts have already been disclosed in H’s Form Es. Latest 12 months of bank statements and latest month of securities account statement have already been produced with H’s 1^st Form E. H is willing to produce latest 12 months of bank statements and latest month of securities account statement if W also produces the same for her bank and investment accounts.

(i) Julius Baer account no. HK9993088-01 See [B2/356-357];

(ii) Julius Baer account no. SG63883088-01See [B2/347-354];

(iii) Ningbo Bank; Statements attached to H’s 1^st Form E (not in hearing bundle)  – see [A1/9/91-92/7];

(iv) Bank of China (including the Jin Mao Tower branch)  No such account – burden is on W to show that H has such account);

(v)   DBS Bank (whether in Hong Kong, Singapore, or elsewhere); See [B2/243 -286]

(vi)   Goldman Sachs (whether in Hong Kong, Singapore, or elsewhere).See [B2/243-286]; No such account – burden is on W to show that H has such account.”

73.  The Husband’s obligation to disclose his bank statements in his 1^st Form E is from the September 2021.  There is no reason for a departure from such timeline, in addition to which the Husband was obliged to file his more recent bank statements in accordance with his updated Form E filed on the 12 September 2023.

74.  The Husband makes his updated disclosure conditional on the Wife updating her disclosure: “….if W also produces the same for her bank and investment account”.The Husband is fundamentally incorrect in such an approach as this is the Wife’s application for Specific Discovery, there is no application by the Husband for specific discovery, although in the event the ancillary relief does not settle it may well be that the Wife updates here own disclosure.

75.  In the circumstances the Husband is ordered to disclose on oath the bank statements of all his personal bank accounts from 1 September 2021 to date save as previously disclosed; such affirmation to be filed 42 days from the date of this judgment.

76.  Request B22 (ii)  Credit and debit cards

77.  The Wife seeks statements for credit and debit cards in June 2019 and in the past 3 years. It is relevant to have in mind that the obligation in Form E to disclose credit cards is at Part 2 which relates to liabilities “If you have credit cards, attach copies of the latest 3 months credit statements”.

78.  In his 1^st Form E of 5 October 2022, the Husband disclosed an HSBC and Amex credit card, with respective balances of HK$0 and HK$330,442.25. In his 2^nd Form E dated 12 September 2023 his deposed to exactly the same disclosure notwithstanding the 2^nd Form E was approximately a year later. It is of note that the credit card attachments to the 2^nd Form E run from June to August 2022.

79.  On the face of the Form E’s the Husband has not disclosed his credit cards in accordance with his obligation to do so. The disclosure of credit and debit cards arises under “Liabilities” as referred to above although in many cases credit and debits cards are more relevant as to ascertaining the parties’ standard of living and personal expenditure.

80.  In the circumstances of this case where the current focus is the quantum of the Parties’ capital resources, I do not propose to accede to the Wife’s request for the Husband to provide his credit and debit statements for June 2019 and for the last three years but rather for the Husband to produce a schedule verified on oath quantifying his monthly credit and debit card expenditure from September 2022 to date; such affirmation to be filed 42 days from the date of this judgment.

81.  In the event the ancillary relief is not resolved at the FDR or otherwise the Wife is not precluded from renewing her request.

Request B 22(iii) investment accounts:

i)  Julius Baer account no. HK98993088-01 (HK9993088-01 in the request would appear to contain an incorrect digit)  ; the documents exhibited at B2/356 and 357 are letters from the Julius Bar Hong Kong Branch JBHK dated the 19 October 2022 and 13 June 2023 to the Husband and Wife. The correspondence confirms the Husband and Wife have been clients since 14 October 2019; the letter of 19 October 2022 states “over the last 36 months has maintained net asset balance with the Bank is nil balance since inception on 14 October 2019.” The letter of 13 June 2023 infers the above account is to be closed within 30 days of 13 June 2023.

ii)  Julius Baer account no. SG63883088-01; the documents exhibited at B2/347-354 are an asset statement at 31 August 2022 with an approximate value of US$47,500. This is the figure given by the Husband in his 1^st and 2^nd Form Es.

iii)  Ningbo Bank;  A1/9/91-92/7 refers the Husband’s Answer filed on 27 January 2023 : “the said RMB7,000,000 was just an inter-bank transfer from the Petitioner’s NBB Account to this China Merchant Bank Account, which is also evident by the statement of NBB Account produced by the Respondent in Attachment 2.3 of R’s Form E.

iv)  Bank of China (including the Jin Mao Tower branch)  No such account – burden is on W to show that H has such account);

v)  DBS Bank (whether in Hong Kong, Singapore, or elsewhere); exhibits B2/243 -286 relate to the Husband’s multi currency account 120 -111985-8 from 1 July 2021 to 31 July 2022.

vi)  Goldman Sachs (whether in Hong Kong, Singapore, or elsewhere). No such account – burden is on W to show that H has such account.

82.  Bearing in mind the manner in which the Husband has obfuscated his disclosure to date, the Husband to list with supporting  documents the details of his investment accounts from September 2021 with the value of each such account as at September 2021, September 2022, September 2023 and September 2024 and in addition confirm on oath if it be the case whether or not he has held accounts with Ningbo Bank, Bank of Chinese and Goldman Sachs within and without the jurisdiction of Hong Kong since September 2021; such affirmation to be filed 42 days from the date of this judgment.

Questions

Request B 23.  Save for the transactions already addressed in H’s Answer to W’s 2^nd Questionnaire on H’s updated Form E, please provide details of the purpose, source, and destination of all deposits and withdrawals of HK$500,000 or more from any of the following bank accounts together with supporting statements.  The Wife then lists 8 accounts.

83.  The Husband’s response is that :

“Transactions of HK$1m or more have been disclosed [A1/12/154-158/16]. Request is unnecessary, disproportionate, oppressive and constitutes fishing expedition.”

84.  Bearing in mind the manner in which the Husband has obfuscated his disclosure to date, the Husband, save as previously disclosed is ordered to provide on oath details of the purpose, source and destination of all deposits and withdrawals of HK$500,000 or more from the bank accounts listed in request 23.1 to 23.8 from September 2021; such affirmation to be filed 42 days from the date of this judgment.

C.  Shareholding and Businesses

C1.  General

Documents

Request C 24.  Audited and unaudited financial statements of all private companies and/or businesses in which H has/had directly or indirectly held shares or been beneficially interested in or has/had control over in Hong Kong or elsewhere in June 2019 and in the past 3 years (including those held through the Fu Family Trust, Nova Aqua, or any member within the CBC Group).

85.  The Husband’s response is:

“-Unaudited consolidated financial statements of CBC Group Holdings Limited for period ended 31 March 2023 and year ended 31 December 2022 have been produced [B2/11/404-405; A2/21/338/7], which are what Form E requires.

-Audited financial statements are not required for Cayman Islands or BVI companies [A2/21/338/5].”

86.  The Husband’s obligation in his 1^st Form E is from September 2020; the Husband is therefore ordered, save as previous disclosed, to produce on oath copies of the audited / unaudited financial statements of all private companies / and or business in which he has / had directly or indirectly held share or been beneficial interest in or  had control in Hong Kong or elsewhere since September 2020; such affirmation to be filed 42 days from the date of this judgment.

Questions

87.  Request C25. List all private companies in which H has directly or indirectly held shares or been beneficially interested in in Hong Kong or elsewhere in June 2019.

88.  Request C26. List all businesses in which H has had or has otherwise owned or controlled in Hong Kong or elsewhere in June 2019

89.  Request C27. List all directorships H has had in June 2019

90.  The Husband’s response to requests C25,26 and 27 is

“All of H’s businesses, companies and directorships in the last 24 months have been declared in his Form Es. Any request beyond what Form E requires is unnecessary, irrelevant and oppressive.”

91.  In accordance with his obligations in his 1^st Form E (October 2022), the Husband was under a duty to disclose the relevant information and documentation in respect of requests C1.25, 26 and 27 since September 2020.

92.  Save as previously disclosed the Husband is to disclose the  details as requested in C1.25, 26 and 27 from September 2020 on oath,  such affirmation to be filed within 42 days of the date of this judgment.

C2.  CBC Group and Nova Aqua

Documents

Request C2.28. A copy of the valuation report from Campbell Lutyens dated around 10 March 2022, which states that CBC Group is worth around US$1.6 to US$2.1 billion.

93.  The Husband’s response is

“Valuation lacks probative value as it is preliminary, based on assumptions and prepared by a private capital advisory firm as a sell-side pitch/marketing document [A2/20/324-326/135(2)-(3)].

Request is unnecessary and irrelevant as asset is ringfenced under PNA.

Without prejudice to this primary position, H is prepared to supply a copy of this document to W.”

94.  In such circumstances where the Husband has agreed to provide the valuation report from Campbell Lutyens dated around 10 March 2022 he is ordered to produce a full and complete copy of the report within 42 days of this judgment. For the avoidance of doubt this is not a determination as to whether or not the asset is ring fenced under the PNA.

Request C2 29.  A copy of all valuation reports, or such related correspondence, that have been produced in respect of CBC Group (and any of its members); and Nova Aqua (and any entity in which it has held shares),in June 2019 and in the past 3 years. The request elaborates that the request is made on the premise that CBC HIP is part of CBC Group. It (if)  is not part of CBC Group, all requests in this paragraph are repeated in respect of CBC HIP, mutatis mutandis.

“No valuation has been performed since 2019 (other than item 28, if any).

Request is unnecessary, irrelevant, disproportionate, oppressive and constitutes a fishing expedition.”

95.  In his solicitors’ disclosure letter dated 6 May 2029 prior to the PNA the Husband gives a value of “over US$100,000,000”;

i)  In his 1^st Form E’s he states his net assets to be HK$75,083,620.07; (approximately US$9.6 million). 

ii)  In his 2^nd Form E’s he states his net assets to be HK$141,240,992.53; (approximately US$18.1 million).

iii)  There is substantive disparity in what the Husband disclosed immediately prior to the PNA, in his 1^st Form E and in his 2^nd Form E.

96.  In the circumstances the Husband’s is to produce on oath copies of all valuation reports and or correspondence relating to valuations, that have been produced in respect of the CBC Group and or Nova Aqua since May 2019, such affirmation to be filed 42 days from the date of this judgment.

E.   Loans owed by 景仕琦 to H

Request E 31.  In respect of the RMB700,000 loan from the H to 景仕琦:

31.1   A copy of the loan document (whatever form it may take)  in respect of the loan.

31.2   Correspondence between 景仕琦 and the H about the loan.

97.  It is the Husband’s case that

“Loan has been repaid – see [A1/9/95/14; A2/20/327/138; A1/11/128/2.8; A1/9/95/14].

Request is unnecessary and irrelevant”

98.  The interest free loan was disclosed by the Husband in his 1^st Form E in October 2022. In his Answer dated 26 January 2023 he stated it was a bridging loan to a friend for the purchase of a property and that the loan has been fully repaid.

99.  RMB700,000 is a significant sum of money. There may or may not have been a loan document and or correspondence, however the Husband would know from which account he had advanced the loan and into which account it was repaid.

100.  In the circumstances the Husband to disclose on oath within 42 days of this judgment :

i)    Any loan document and or relevant correspondence in respect of the loan

ii)    Details with supporting documentation of the account from which the loan was made and details with supporting documentation of the account into which the repayment was made

F.  Liabilities

Documents

101.  Request F33 In respect of the loan from Li Yun Song and Wang Yu referred to at Part 2.13 of H’s Updated Form E; (i)  all correspondence between H and Li Yun Song and Wang Yu, in respect of either of those loans, (ii)  the bank account(s)  to receive such loans, and (iii)  their current whereabouts.

102.  It is the Husband’s case that

“Loan agreements has been produced at [B2/16-17/422-431] and repayments have been identified at [A2/20/328/140; A1/12/154-157/16]

103.  In his 1^st Form E the Husband disclosed the loan in the sum of RMB5 million from Li Yun Song and RMB14,300,000 from Wang Yu and attached the loan agreements. The Husband stated that the relevant deposits could be found in his China Merchant Bank account disclosed in Paragraph 2.3 of his Form E.

104.  The Husband, as with any deponent, is to make disclosure which is not only full but clear, in the circumstances the Husband is to provide on oath within 42 days of this judgment a schedule identifying in respect of each loan the following:

i)  The receipt of each instalment of the loan

ii)  The repayment of each instalment of each loan

iv)  In addition, the Husband to explain the reason and purpose of each loan and the relationship between the Husband and the lender.

G.  Trusts

Request G 34.2  In respect of the Fu Family Trust, save as already disclosed a copy of all valuation reports, or such relevant correspondence, produced in or about June 2019 and in the past 3 years

105.  It is the Husband’s case that this “Overlaps with item 29 – see item 29 above” which reads no valuation has been performed since 2019 (other than item 28, if any). The request is unnecessary, irrelevant, disproportionate, oppressive and constitutes a fishing exercise.

106.  The Husband has been ordered above to disclose his assets of substance as at May 2019 being shortly before the he set up the Fu Family Trust being the entity into which the he transferred his AM shares on 13 June 2019 the date before he signed the P.N.A.

107.  The Husband has also been ordered to disclose the valuation report from Campbell Lutyens dated around 10 March 2022 in relation to the CBC Group

108.  On the basis of the disclosure already ordered, I do not propose to order further disclosure.

109.  Request G35.3  All lists of assets of the Ocean Drive Trust in or about June 2019 and in the past 3 years.

110.  It is the Husbands case that

“H has confirmed the only trust property held by the trust is the Ocean Drive property [A2/20/330/145].”

111.  The Husband exhibited the Ocean Drive trust document date 3 August 2022 to his 2^nd Form E date 12 September 2023.The Property was purchased by the Husband on 27 August 2017 and on 3 August 2022 gifted to his son through the Ocean Trust. The Husband also produce a valuation of the property in his Form E. In the circumstance I do not propose to order further disclosure.

H.   Income and benefits

Documents

I propose to consider Requests H36,  H37 and H38 together

Request H36.  (i) H’s proof of income; (ii) H’s tax returns in all jurisdictions; (iii) employment contracts H has been a party to since 2019:

112.  It is the Husband’s case that

“-36(i)  & (ii)  was withdrawn by W in her 10^th affirmation dated 7 November 2024 – see [A2/22/362/51-52] & [B4/62/941/21]

Proof of income in the forms of Notice of Tax Assessment issued by the Inland Revenue Authority of Singapore and pay slips has been produced [B2/19/471-476; A2/20/331-332/146; B3/53/714-719].

Request beyond what has been produced is not what Form E requires and is redundant and unnecessary.”

113.  Request H37.  Written correspondence (including emails and instant messages)  showing the breakdown of all income earned by H (whether from any member of CBC Group, Nova Aqua or any company in which it holds shares, the Fu Family Trust, the Ocean Drive Trust, or any other company, partnership, or entity); regardless of whether it takes the form of salary, allowance, bonus, commission, tips, dividends, profit distributions, carried interest, or some other form.

114.  It is the Husband’s case that

“H has explained and W is fully aware that all dividends and carried interest from CBC Group are distributed to NAL as part of tax planning arrangement and do not form part of H’s personal income [A1/11/136/3.6; A2/20/332/147; A2/20/294/31; B3/20/485/P]. Such distributions are ringfenced according to the PNA [B3/20/498].

-  Separate property under PNA remains separate and ringfenced even if it has been expended for the benefit of the family or joint expenditure during marriage – see [B3/20/488/2.7(c)]

Request is unnecessary, irrelevant, disproportionate and oppressive.

115.  Request H38.  Written correspondence (including emails and instant messages)  or any company policy (handbook)  explaining how income and/or benefits (in different forms)  are made.

116.  It is the Husband’s case that

“Request is vast, wide and undefined and appears to overlap with item 37. In any event, request is unnecessary, irrelevant, disproportionate and oppressive.”

Consideration of Requests H36 to H38

117.  In her exhibit LMJ10-8 to her 10^th affirmation the Wife’s request 21 sought “Copy of the employment contracts H has been a party since 2019”.

118.  Request 36 of Schedule A is wider in scope however as referred to above in LKPBB v CKLM “the court’s role in ancillary relief is inquisitorial”. In addition, by reference to Section 7(1)  (a)  the court has a duty to have regard to income.

119.  In Attachment 3.1 to his 2^nd Form E the Husband exhibited the Income Tax - Notice of Assessment from the Inland Revenue Authority of Singapore dated 10 May 2021 and 4 April 2022

i)  In the year of assessment 2021 employment income was recorded as 252,240 with donations recorded as 252,240; 0 tax was payable.

ii)  In the year of assessment 2022 employment income was recorded as 240,000 with donations recorded as 240,000; 0 tax was payable.

iii)  He also exhibited CBC Group salary advice for the months of May, June 2022 and July 2022; the net amount payable each month was S$18,797

iv)  The figure of S$18,797 corresponds with the figure the Husband gave in both his Form E’s under paragraph 3.1 “My present basic income per month is SGD18,797, equivalent to HK$102,780.55”.

120.  At paragraph 3.6 (Other income)  of his 1^st Form E the Husband stated “Other than those ringfenced as my “Separate Property” under PNA, all the dividends and other incomes were directly paid into my bank/investment account(s).

121.  At paragraph 3.6 (Other income)  of his 2^nd Form E the Husband stated

“Nil, note 3.6” Note 3.6 states “All the dividends and carried interests from CBC Group (which are my Separate Property under PNA)  are distributed to NAL and not to me”

122.  In his 1^st Form E in October 2022 the Husband assessed his gross assets at HK$268,162,796.53, liabilities of HK$193,079,176.46 producing a net figure of HK$75,083,620.07.

123.  In his 2^nd Form E in September 2023 the Husband assessed his gross assets at HK$334,320,169.99, liabilities of HK$193,079,176.46 (same as before)  producing a net figure of HK$141,240,992.53.

124.  The ancillary relief in this case is almost certainly to be resolved on a clean break basis therefore the capital resources of the Parties are likely to be of greater focus  than  their current respective income and or earning capacity however this does not obviate  a party from the duty  disclose their  income as required in Form E which includes inter alia dividend income and concludes with the catch all declaration “Apart from the above I do not have any other income”.

125.  The Husband has left the court in the dark as to his income; this is simply unacceptable.

126.  In the circumstances the Husband is to disclose on oath 42 days from the date of this judgment his income as required in paragraphs 3.1 to 3.6 of Form E namely from September 2022 to include the quantum of his annual income as at:

i)  31 December 2022

ii)  31 December 2023

iii)  31 December 2024

Costs

127.  Understandable at this juncture I have not heard the Parties’ submissions as to costs.

128.  The Parties respective costs of the proceedings to date are:

i)  For the Wife approximately HK$7 million of which approximately HK1.9 million relates to the Specific Discovery Application

ii)  For the Husband approximately HK$8 million of which HK$2 million related to the Specific Discovery application

129.  The total costs of the proceedings to date are therefore approximately HK$15 million of which HK$3.9 million relates to the Specific Discovery application.

130.  In the main the Wife has been successful; in addition to which the Husband has failed to make full and frank disclosure as required by PD 15.11. In the circumstances the Husband shall pay the Wife’s costs of and incidental to the application for Special Discovery, including all cost reserved with certificate for two counsel, such costs to be taxed in default of agreement on a party and party basis. 

131.  I propose to summarily assess such party and party costs, including certificate for two counsel; which on a broad brush basis of 65% of HK$1,900,000 million amounts to HK$1,235,000 ; such sum to be paid by the Husband to the Wife 42 days from the date of this judgment.

132.  Such order shall be nisi to become absolute 28 days from the date of this judgment unless either Party informs the court in writing that they wish to be heard on costs.

133.  Orders flowing from this judgment are as follows :

a.  The Husband to disclose on oath his assets of substance as at May 2019 by completing (without supporting documentation)  Part 2 (2.1 to 2.13)  of Form E together  with the “Summaries of assets and Liabilities”.

b.  The 5 landed properties to be valued in accordance with the above directions.

c.  The Husband to affirm that, if it be the case, that there has been no mortgage, charge or other encumbrance on the Shanghai Matrimonial home since it purchase on 13 December 2018, such affirmation to be filed 42 days from the date of this judgment.

d.  The Husband to affirm that, if it be the case, that there has been no mortgage, charge or other encumbrance on Unit 2201 since September 2019 to date, such affirmation to be filed 42 days from the date of this judgment.

e.  The Husband to disclose on oath the bank statements of all his personal bank accounts from 1 September 2021 to date save as previously disclosed such affirmation to be filed 42 days from the date of this judgment.

f.  The Husband to produce a schedule verified on oath quantifying his monthly credit and debit card expenditure from September 2022 to date; such affirmation to be filed 42 days from the date of this judgment.

g.  The Husband to list with supporting documents the details of his investment accounts from September 2021 with the value of each such account as at September 2021, September 2022, September 2023, September 2024 and in addition confirm on oath if it be the case whether or not he has held accounts with Ningbo Bank, Bank of Chinese and Goldman Sachs within and without the jurisdiction of Hong Kong since September 2021; such affirmation to be filed 42 days from the date of this judgment.

h.  The Husband, save as previously disclosed is ordered to provide on oath details of the purpose, source and destination of all deposits and withdrawals of HK$500,000 or more from the bank accounts listed in request 23.1 to 23.8 from September 2021; such affirmation to be filed 42 days from the date of this judgment.

i.  The Husband is ordered, save as previous disclosed, to produce on oath copies of the audited / unaudited financial statements of all private companies / and or business in which he has / had directly or indirectly held share or been beneficial interest in or had control in Hong Kong or elsewhere since September 2020; such affirmation to be filed 42 days from the date of this judgment.

j.  Save as previously disclosed the Husband is to disclose the details as requested in C1.25, 26 and 27 from September 2020 on oath, such affirmation to be filed within 42 days of the date of this judgment.

k.  The Husband to produce on oath a full and complete copy of the Campbell Lutyens report dated around 10 March 2022 within 42 days of this judgment.

l.  The Husband’s is to produce on oath copies of all valuation reports and or correspondence relating to valuations, that have been produced in respect of the CBC Group and or Nova Aqua since May 2019, such affirmation to be filed 42 days from the date of this judgment.

m.  In respect of the RMB700,000 loan from the Husband to 景仕琦 : the Husband to disclose on oath within 42 days of this judgment.

i.  Any loan document and or relevant correspondence in respect of the loan.

ii.  Details with supporting documentation of the account from which the loan was made and details with supporting documentation of the account in to which the repayment was made

n.  In respect of the loans form Li Yun Song and Wang Y the Husband is to provide on oath within 42 days of this judgment a schedule identifying in respect of each loan the following:

i.  The receipt of each instalment of the loan

ii.  The repayment of each instalment of each loan

iii.  In addition, the Husband to explain the reason and purpose of each loan and the relationship between the Husband and the lender

o.  The Husband is to disclose on oath, 42 days from the date of this judgment his income as required in paragraphs 3.1 to 3.6 from the prescribed filing date of his 1^st Form E namely September 2022 to include the quantum of his annual income as at:

i.  31 December 2022

ii.  31 December 2023

iii.  31 December 2024

p.  The Husband do pay the Wife’s costs of and incidental to the Specific Discovery Application summarily assessed at HK$1,235,000 within 42 days, such order shall be nisi to become absolute 28 days from the date of this judgment.

134.  By the nature of the application this order is intricate and specific, particularly as to the details of accounts and timelines; in the circumstances I give liberty to apply as to the form and implementation of the order.

Finally

135.  It is apparent from the Court file that both Parties indicated in their respective Certificates as to Mediation that they would each consider mediation; however, I am not aware this process and resource has been proactively engaged.

136.  In the context where the Parties were only married for 3 years but have been litigating for over 2.5 years (the Wife’s Petition was filed in August 2022)  at a financial cost of approximately HK$15 million it may be prudent of them each to consider, with the assistance of their specialist lawyers, additional forms of dispute resolution be it mediation, private FDR or Private Adjudication so that this sad and expensive dispute can be appropriately resolved. Furthermore, in addition to the monetary cost, I anticipate the Parties will be painfully aware of the emotional toil and burden of protracted litigation.

137.  Last, but not least I thank all Counsel for their assistance at the hearing and their concise, precise and informative opening and closing submissions.