CHERYL CHAN v. NAGAI PO LUN PAUL

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JUDGMENT

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Kempster, JA :

1. This is an appeal, by leave of HH Judge Chism, by a respondent husband in divorce proceedings commenced in 1982 from an order made by that judge on 8 January 1990 whereby the husband was required to make his wife, the petitioner, his attorney for the purposes of obtaining such accounts of Bun Shun Enterprises Ltd over the preceding five years, including figures for profit and loss and expenditure and income, as could be called for by any shareholder of that company and to pay to her the costs of and incidental to the application. It is submitted that the judge had no jurisdiction to make such an order; alternatively that he should not have done so without an undertaking by the wife to indemnify her husband against the costs of any proceedings which she might bring as his attorney and for which he would be liable. In any event, the submission concludes, the husband should not have been ordered to pay the costs of the application.

2. The wife, who seeks some suitable financial provision from her husband, points to the paragraph in his affirmation of means made on 29 September 1988 wherein he admits to being the legal but not the beneficial owner of 83 shares in Bun Shun Enterprises Ltd and to the further affirmation, which he made on 5 January 1990, giving the number of shares as 90. A declaration of trust made on 31 January 1984 in favour of the husband's father is exhibited to the earlier affirmation. To the best of my belief no application has been made to cross-examine him on his affirmations, no evidence contradicting the averment of trust has been adduced and no allegation made that might justify recourse to section 17(1)(b) of the Matrimonial Proceedings and Property Ordinance (Cap 192). In response to an order for particulars made on 24 July 1989 the husband stated that his father was also beneficially entitled to the income from the shares. On the same day the husband was ordered to supply the accounts of the company as already described.

3. Those documents were not forthcoming and on 4 December 1989 the wife issued an application claiming the relief ordered on 8 January of this year. The application was supported by a document being neither an affidavit nor an  affirmation signed by the wife on 8 December 1989. It was affirmed rather than sworn but the opening words do not conform with those required by section 7(4) of the Oaths and Declarations Ordinance (Cap 11). Having regard to the terms of section 5 of the Interpretation and General Clauses Ordinance (Cap 1) and to RSC Order 41 rule 4, we are, I believe, nonetheless entitled to allow the use of the document in evidence as the judge below inferentially did.

4. The husband asserts that, by himself and his solicitors, he has sought copies of the company's accounts in vain and that it would be difficult if not immoral to bring proceedings against his father for their production. He has been ordered to deliver certain accounts. He has not been ordered to execute any conveyance contract or other document so as to allow even the High Court to order execution by a third party pursuant to section 25A of the Supreme Court Ordinance (Cap 4). No more have circumstances been disclosed warranting the appointment of a person to convey land by virtue of section 51 of the Trustee Ordinance (Cap 29). Miss Wong, whom we invited at the outset to address us on behalf of the wife, has had to rely on the terms of rule 77(5) of the Matrimonial Causes Rules in seeking to support the jurisdiction of the judge to make the order he did. Subrule (5) reads : -

From these express provisions Miss Wong invites us to find that a District Court judge exercising the statutory divorce jurisdiction has impliedly been given the power to order the execution of a power of attorney because it might be and, in this instance, was necessary for the proper exercise of that jurisdiction. From my part I am unable to accede to her argument. In my opinion the judge had no jurisdiction to make the order he did. In the circumstances I would allow the appeal and set aside the order made by Judge Chism.

Sir Derek Cons, V-P :

5. I agree with my Lord that the appeal should be allowed and the order below set aside and for the reasons he has given.

Clough, JA :

6. I also agree.