MKK v. YSM

FCMC 11948/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11948 OF 2010

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JUDGMENT
(Ancillary Relief)
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Introduction

1.  This is a trial on the ancillary relief application by the petitioner husband.

2.  For convenience, I shall refer the petitioner husband as “P” and the respondent wife “R”.

3.  Long as it is not only the length of this marriage but also the length of their separation.  The parties married in January 1972 in Hong Kong and parted their ways on 1July 2000 when P moved out of the matrimonial home.  Hence, it is a 28-year marriage up to 2000 and up to now the parties have separated for nearly 15 years. 

4.  P is now 66 years old, and is living alone.  During most of his time in the 1970s and 1980s, he worked as a waiter in different restaurants. Between December 1988 and 1993, he worked as an insurance agent as a subordinate of R’s brother.  In 1994, P started a business selling festival and party costumes.  I will refer this business as “FPC”.

5.  R is now 64 years old. She started her career as a cashier and then became a manager for the human resources department of a retail chain-store.  In the 1990s, she changed to work as an operation manager at another retail store until her retirement in 2001.

6.  They have 2 adult children: their daughter KY, aged 42 and their son JB, aged 36.  Both have married and are independent.  KY is living in Hong Kong and JB is in the United States.  KY is a witness for R in the trial of the present ancillary relief proceedings. 

7.  On 14 September 2010 P filed his petition for divorce on the ground of 2 years separation, the date of separation, as pleaded on the petition, was as from 1 July 2000.  Hence, it was more than 10 years after separation that P took action to wind up the marriage.  As will be seen below, this long lapse of time is one of the main grounds relied upon by Ms Yip SC, counsel for R, in opposing P’s application.

8.  Decree nisi was granted on 25 August 2011 and it was made absolute on 19 December 2011.  Hence, what remains is the financial issue between the parties.

Background and Salient Features of the Case

9.  There are two salient features in this case. 

10.  The first is that the majority, if not all, of the assets, whether acquired before or after the parties’ separation, were/are in the form of landed properties and the second is that these landed properties were/are predominately owned in the name of R or in the name of vehicles controlled by her.  The vehicles used are two companies, LTS and WF; both incorporated in Hong Kong.  I will come to these 2 companies in due course but suffice for me to say at this point is that P had for some time been the shareholder and director of WF. 

11.  At this juncture, it would be useful for me to set out some of the transactions by the parties.  I wish to make it clear that when I mention that “the parties bought” certain properties or P or R bought certain properties, it does not necessarily mean that I agree with either party’s version.

After Marriage but Before Separation of 2000

12.  At the beginning of their marriage, the parties initially lived with P’s family at a rented property in Happy Valley.  Soon afterwards conflicts with other members of the extended family heightened, compelling the couple to move to a rented room in Causeway Bay on the first few days of the Chinese New Year of 1973 and when R was pregnant with KY, at a monthly rental of $250.  KY was born shortly thereafter in March 1973.

13.  Then about 2 years into the marriage, the parties bought their first matrimonial home in Wanchai, referred to as “the Antung Property”, in R’s sole name; this was a small 2-bedroom flat with gross floor area of 430 ft², and net 300 ft².  They moved into the new home in early 1975.

14.  In mid 1975, another property at Nan Fung Sun Chuen, North Point (“the Nan Fung Sun Chuen Property”) was bought in the name of R and was sold with a handsome profit shortly afterwards in 1977 before the completion of the building.  A further property at Carson Mansion (“the Carson Mansion Property”) was also bought in the name of R in 1980, which was subsequently sold in 1984.

15.  Later on in 1986, the parties bought another property, a 3-bedroom flat in City Garden of North Point, in the name of R (“the City Garden Property”) which became their 2^nd matrimonial home.

16.  In 1991, a property at Greenview Terrace (“the Greenview Property”) was bought in the name of P.  In the same year, LTS was incorporated for the purpose of acquisition of an apartment at Hatton Place at the Mid-levels.  Apart from R, there were also 2 shareholders/investors who were friends of R.

17.  In 1993, a property in Lee Wing Building (“the Lee Wing Property”) was bought in the name of R as their 3^rd matrimonial home.  In the same year, the City Garden Property was sold. 

18.  In about August 1994, a shop being Shop 73 at Admiralty was purchased in the name of LTS from which P operated FPC; and in the same year the Greenview Property, which was in the name of P, was sold and another property, an apartment in the Discovery Bay (“the La Vista Property”) was purchased in the name of WF, of which at that time P and R were shareholders in the proportion of 4,999 shares and 5,001 shares respectively.

19.  On 3 January 1995, LTS bought another shop, being Shop 97 in the same shopping arcade where Shop 73 situated.  

20.  A few months later in September 1996, R purchased another property at Parkvale of Discovery Bay (“the Parkvale Property”) in her name.  This property became the parties’ 4^th and last matrimonial home.  The Lee Wing Property continued to be occupied by their children and R also occasionally stayed there.

21.  One year later in May 1997, LTS bought a further shop, being Shop 50.  Hence, at one time, LTS owned 3 shops in the same shopping arcade.

22.  On 12 May 1997, the La Vista Property was sold and in replacement, WF bought a house in the same development, referred to in this judgment as the BH House.

23.  It would appear that it was in about 1999 that P bought a property in Dongguan of the Mainland (“the Dongguan Property”).  P’s case is that he started to live there since about 1999.   In the same year, a property on 9^th floor of East Asia Building (“the 1^st East Asia Property”) was bought in the name of R for storage purpose.

24.  In June 2000, shortly before the separation, R purchased a property in La Serene of the Discovery Bay and sold it in August 2004.

Transactions After the Separation

25.  Since separation, R has purchased the following properties.

26.  R bought, via LTS, a property in Lee Man Building (“the Lee Man Property”) in 2004 and an office in Kai Wong Building (“the Kai Wong Property”) in March 2005.  

27.  In July 2006 she bought another property on 8^th floor of East Asia Building (“the 2^nd East Asia Property”); and in January 2007, she acquired a shop at Central House of Central in the name of LTS.

28.  Then R sold, via LTS, Shops 73 and 97 in 2009, the Lee Man Property in July 2010 and the Lee Wing Property in November 2010.

29.  Finally, in April 2010, she purchased a flat in Ship Street (“the Pao Yip Property”).

30.  Broadly speaking, P’s Dongguan Property was for his abode after separation, the Parkvale Property had been used as the matrimonial home of the parties and since the separation, by R, the East Asia Properties were used as warehouse and Shops 73 and 97 were used for the business of FPC.  Shop 73 was used until end of 1998 and Shop 97 was until December 2000.  Thereafter, they were rented out.  As for the other properties, the modus operandi appeared to be that they were essentially rented out for rental incomes for covering at least the relevant mortgage payments. 

31.  Since LTS, WF and FPC loomed large in the trial, I set out their background as below.

LTS 

32.  On 1 June 1992, R and 2 other friends formed LTS, each taking up 1/3 of the shareholding for the purchase of Hatton Place in the Mid-Levels.  After this property was sold, R’s friends withdrew from it. 

33.  Thereafter, LTS was used to acquire (i) Shop 73, on 1 August 1994, (ii) Shop 97, on 3 January 1995, and (iii) Shop 50, on 29 May 1997.

34.  From about 1994 to 2002, R held 2/3 of the shares in LTS and CM, P’s younger sister, held the other 1/3.  I believe it is common ground that CM was just R’s nominee.  The two ladies, together with KY, the daughter, were the directors of LTS.  

35.  On 5 March 2002, CM returned her shares to R and consequently, R became effectively the majority shareholder of LTS holding 99.99% and KY came to hold the balance, ie 0.01% of the shares. This is the situation up to now. P was never a shareholder or a director of this company.

WF

36.  This company was acquired initially for the purchase of the La Vista Property in November 1994.

37.  At the beginning P, together with the vendor and R’s sister-in-law, were the first directors and P owned 9,998 shares out of 10,000 shares.  It is quite astonishing that in trial both P and R said they did not know how this happened.  Anyway, the fact is it was only some time later on 13 May 1994 that P transferred 4,999 shares to R as a result of which she held 5,001 shares, making her the majority shareholder, and P continued to hold the remaining 4,999 shares. 

38.  Starting from 1993, P was also the company’s secretary. This was the situation up to 2003 when his shares were transferred to KY.  P said his duty as the secretary was to gather the documents and records to the auditors for preparing the financial statements. He was the authorized signatories of WF’s accounts and had access to both of its current and saving accounts.  He was also responsible for issuing cheques for the company.

39.  In May 1997, WF sold the La Vista Property for $9,800,000 and subsequently in a month, purchased the BH House at $16 million.  Hence, the situation up to 2003 or 2004 was that P owned nearly half of the shares in WF which held the BH House.  Then in about 2003/2004, P transferred his entire shareholdings to their daughter KY at nil consideration and resigned as its secretary.

The FPC

40.  In August 1994, P started the business of FPC in Shop 73.  The genesis of the business was from R.  At that time, R was contemplating purchasing Shop 73 which was then operated as a party and festival costumes shop by a German lady owner.  The lady owner’s condition for sale was to have the business sold together with the Shop as a bundle.  FPC was therefore acquired when Shop 73 was bought.  R says this was the business purchased by her for P to run so that he might have his own business.

41.  Later in early 1995, FPC also occupied Shop 97 which was also owned by LTS.

42.  It is not in dispute that during the time when FPC used Shops 73 and 97, P “paid” rents for the premises.  R stresses that it was strictly a commercial transaction, as such P or his FPC was simply a tenant only, no more and no less.  As for P, his case is that FPC was a family business and the use of the shops by FPC was a family arrangement. 

43.  In about 2001 (ie after the parties’ separation), FPC moved out from Shops 73 and 97 to another rented shop.  This shop was unrelated to R and was in the basement of a shopping arcade in the Central. 

44.  It is P’s case that FPC ceased business in August 2006 when he sold the business to one Mr Chan and he then retired.  Since then he has not worked in any serious sense.  From 2007 to 2010 he occasionally assisted Mr Chan during peak seasons and acted as a middleman for clients in purchasing costumes and masks but they were not on regular basis. 

45.  R says this is completely untrue.  In fact, P has been running the business.  He failed to properly disclose the business in his 1^st Form E.  As of now, the extent of the operation and the profitability of the business remain a mystery. 

The Petitioner’s Case

46.  P’s case is simple and straightforward.  It was due to the joint effort and contribution of the parties throughout the marriage that wealth has been accumulated.  In trial, P repeatedly made use of the term “family fund” (家庭基金) and maintained that he had contributed to this fund which all along was controlled by R.  It was at the time of purchase of the Nan Fung Sun Chuen Property that R made the suggestion that all the family investments and funds were to be centralized in her hands for the sake of convenience.  He agreed and handed over his savings and profits to R.  Not only that the landed properties were part of the family assets, likewise FPC was also part of the family assets.  It did not belong to him alone.  He further claimed that despite their separation in July 2000, he had financial contribution until 2002.

The Respondent’s Case

47.  R has two main grounds, namely (1) separate finance or financial independence and (2) long separation to justify a departure from the sharing principle.

Financial Independence / Segregation

48.  Ms Yip, on behalf of R, argued that this is a unique case where exceptionally the parties chose to operate separate economies during the marriage: R managed and invested her own property speculation/investment portfolio and P operated his FPC business. 

49.  R also claimed that she was born into and grew up in a well-off family which enabled her to have savings of more than $100,000 (“the Seed Money”) before marriage.  The accumulation and growth of R’s capital assets began when she purchased the first property ie the Antung Property with the Seed Money.  That was the reason why the property was purchased in her sole name.  All the subsequent properties purchased by her were through the use of the Seed Money and the profits derived from it.  All the net sale proceeds were kept by her and used for further purchases.  Given their financial independence she never had to report to P about her investments.  She emphasized that throughout the 28 years of their marriage, they maintained one joint cheque account only.

50.  For P, he began his own FPC business in his sole name as a sole proprietor in 1994.  To further evidence the financial independence, P was required to pay rent to the properties owned by LTS of which R was at all times the majority shareholder. 

51.  The marriage failed and the parties separated on 1 July 2000.  This signifies the end of the marital partnership.  Thereafter, they maintained minimal contact, lived their own lives and segregated with each other both emotionally and financially. 

52.  Ms Yip argued that court should respect the way the parties chose to conduct their lives, or the modus operandi, during the currency of the marriage.  The court should uphold this arrangement and refrain from any re-ordering of assets in these proceedings.

Long Separation

53.  Further or alternatively, Ms Yip submitted that the court must have regard to the fact that the parties have long separated since 2000.  Further, there was a clean break arrangement between them in 2000 following their separation; and all the financial ties were disconnected or completed by about 2003 or 2004 when P transferred his shares in WF to KY.

Parties’ Open Offer

54.  The parties are poles apart in their position.

55.  P is seeking a lump sum of $31,600,000 or alternatively, the transfers of equivalent value of properties held in the name of R, WF or LTS free from mortgages or encumbrances, the costs and the stamp duties of the transfers to be borne by R. 

56.  As for R, her offer is based on P’s needs and is as follows:

1. Within 3 months, R to provide accommodation to P at a property which is of a similar size to the Dongguan Property in the Mainland or the East Asia Properties, at a price not exceeding RMB 1,000,000 (ie approximately $1,287,000);

2. Within 3 months, R to pay P a lump sum of $1,344,000;

3. R shall waive the loan of $750,000 due and owing from P; and

4. R shall waive the all costs order made against P in these proceedings.

Issues to be Determined

57.  In spite of what he has pleaded in his own petition regarding the date of separation, at the beginning of the trial it would appear that P maintained that the parties continued to maintain a relationship until 2010.  That was denied by R.  Subsequently, Mr Chu accepted that the parties separated in July 2000 but urged the court to look at the conduct of the parties in the post separation period.  With this concession, the date of separation ceased to be an issue in dispute.

58.  Further, Ms Yip accused P of failing to give a full and frank disclosure of his FPC business.  Her case is that even as late as October 2011 FPC was still a running business.  This issue however has clearly become insignificant in the course of the trial.  It seems clear to me that even if FPC is still in operation, it is at a very small scale.  Seen in this light, this issue is insignificant in the present ancillary relief exercise.

59.  In my view, the following are the factual issues that required determination:

1. Whether there was any Seed Money as alleged by R?

2. The reason and the circumstances under which the WF shares were transferred from P to KY

The Evidence and the Witnesses

60.  Apart from the parties, KY and one Ms Li, R’s long-time friend, have given evidence in court.  The evidence filed in this case is voluminous.  It is not possible nor is it necessary for me to deal with each and every of them.  Needless to say, some issues and evidence will be given more weight than the others but I wish to make it clear that for those issues or evidence that I have not specifically dealt with in this judgment, it does not mean that I have not given any regard to them.

61.  It is certainly not an exaggeration to say that P’s evidence on a number of issues crumbled in cross-examination.  The following are some of the notable examples.  I will deal with rest when it comes to the relevant matters to be dealt with.

Guarantor

62.  P mentioned he was the guarantor in the purchase of the Antung Property but there is no evidence in support.  The Memorial registered at the Land Registry against the property shows a 2-Party Mortgage.

63.  He also mentioned that he was the guarantor of Shop 97 for LTS though he was neither the shareholder nor director of the company.  Later, in light of the evidence which shows that R and his younger sister CM (who was made a shareholder and director by R) in fact were the guarantors at that time for the purchase of the shop, he shifted to say he was the ‘invisible’ guarantor because when R applied for the mortgage, the bank was concerned about their repayment ability, P then produced his business records to prove that LTS had repayment ability.

Relationship with Madam Lam

64.  R’s alleged that P had an affair with one Madam Lam.  P denied and further denied that his separation with R in July 2000 was because of his relationship with Madam Lam.  What is more, he was adamant that he did not know anyone in this name.  But when being confronted with a cheque dated 14 November 2007 issued by him for $39,600 in favour of a securities company with Madam Lam’s full English name and apparently her bank account number and telephone number endorsed on the back of the cheque, he changed to say there was a male friend in this name.  The evidence clearly points to P having an affair with Madam Lam at the relevant time.

P’s Recent Income

65.  P is found to have failed to disclose his FPC current account in his 1^st Form E dated 27 October 2010.  He is also found to have failed to disclose his income in his 1^st Form E dated 27 October 2010 and the figure he gave regarding his income for the first half year of 2011 in his Answers dated 4 July 2011 is different from that as stated on his 2^nd Form E dated 8 July 2013 though objectively speaking the amounts were not substantial.  He admitted in cross-examination that both figures might not be accurate.  His sales figure of $89,625 from July 2011 to May 2013 is also unreliable.  

The Approach

66.  It is rather unfortunate that the factual disputes spread over a period of four decades.  It is important to bear in mind Hon Ribeiro PJ’s guidance in LKW v DD (2010) 13 HKCFAR at paras 62-63 that there should be rejection of minute retrospective investigations.

67.  Given the number of issues and the complexities of the relating facts advanced by the parties, I also bear in mind the proper judicial task that I am given in cases of this kind is that the court has to endeavour to paint the canvas of his judgment with a broad brush rather than with a fine sable, as was said by Thorpe LJ in para 22 of Parra v Parra, [2002] EWCA Civ 1886; [2003] 1 FLR 942; [2003] 1 FCR 97; [2003] Fam Law 314.

Factual Issues to be Determined

(1) Seed Money

R’s Case

68.  R gave evidence that when she was 18 years old her mother gave her $50,000.  On the top of this, she was able to save another $50,000, mainly from what she earned by assisting in her father’s groceries shop, hence a total of $100,000 before her marriage.  She made use of part of the money for the purchase of the Antung Property and the remaining on the purchase of the Nan Fung Sun Chuen Property.  She never told P that she had the money.

P’s Case

69.  P said the price of the Antung Property was $119,000 odd.  There were 3 methods of payment:  (1) there would be 10% discount if they chose to make full payment in one go; (2) there would be 3% discount if they paid a down payment of 30% by 3 instalments; and (3) payment of 10% as deposit and then paid the remaining 90% by mortgage.  He gave evidence that he thought R went for option 3 (ie a payment of $12,268 only) because options (1) and (2) were beyond their means but he admitted he did not know the actual amount of deposit paid.  He now knows from the present proceedings that R in fact paid $49,000.

Discussion

70.  P said before the purchase of Antung Property in 1974, the couple had savings of about $30,000.  This already included his savings of $5,000 before the marriage.  He also gave evidence that he did part-time job in the Jockey Club in order to have more savings.  However, he failed to mention his saving of $5,000 in his 1^st Affirmation.  Anyway, as Ms Yip rightly pointed out in trial, if he had savings of $5,000 he could have rented a room for them upon marriage but in this regard, what he mentioned in his affirmation dated 31 July 2012 was that they had difficulty in renting a room.  Ms Yip was also right to point out that P never mentioned about doing part-time job for extra savings.  In any event, during cross-examination he conceded it was not possible for them to have saved up such a substantial sum.  He mentioned by passing or by way of a slip of the tongue that if there was no $30,000 there should be at least $10,000 odd.  Nevertheless, he insisted that he handed over his savings to R and the parties had joint savings.  Under cross-examination, he eventually agreed that since all the purchase monies were from R, the property was in her sole name.  

71.  The Antung Property was the parties’ first property; what is more, it was their first matrimonial home.  If P had made some monetary contribution, it is difficult to understand why it was purchased in R’s sole name.

72.  On the Nan Fung Sun Chuen Property, even on his evidence, it was simply impossible for the family to have saved up $5,000 down payment for the purchase of it.  It must also be the case that the family was not able to afford the monthly payments of $950 because at the same time they had to make mortgage payments towards the Antung Property.

73.  At one stage Mr Chu frankly admitted that P does not know whether there was any seed money as alleged. This is consistent with R’s evidence that she never told P of the seed money.

74.  Despite R’s allusion to her mother being the younger sister of a prominent local businessman in the 50’s and so she came from a wealthy family, with respect, on the evidence before me, I am not persuaded that this is the case.  To me, there is quite a difference between one coming from a wealthy family, ie born of wealthy parents and one having a wealthy brother.  The two are not the same, in particular for a traditional Chinese family.  It is fair to say that both were from humble background.  The evidence is that none of R’s siblings went to university; at all times her parents lived in rented premises and in their final days, they were treated in public hospitals rather than in private hospitals.  P and R met each other and started courtship while both were working in a fast food shop in Causeway Bay.  R was the cashier and P was an odd-hand worker / assistant in the kitchen.  According to P, his wages were $300 while R’s was $200 and R had worked briefly as a worker in a factory.  When they got married, P was a restaurant waiter earning $800 per month and R was a cashier in a chain retail store with a salary of $600 plus occasional bonus of $50 if the sales volume was satisfactory.

75.  It is beyond dispute that $100,000 in early 70’s was a substantial sum of money.  There is some evidence that this would be sufficient for the purchase of 2 flats in the North Point area.

76.  Though it is clear that even on the basis of P’s evidence or for that matter, his own admission, there was no way that the parties could have saved up $30,000 for the purchase of the Antung Property, it does not necessarily lead to the conclusion that there was $100,000 Seed Money.   The price of the Antung Property was $119,000 and according to R, the deposit paid was $49,000 and this, together with legal costs, stamp duty and renovation costs all were paid out from the Seed Money. At one point, under cross-examination, she said after the purchase of the Antung Property, she still had $51,000 left but it is not in dispute that after the purchase, in order to keep them afloat, they had to rent a room to CM, P’s younger sister.  If there were $100,000, there is no reason why one of the 2 rooms had to be rented out for some extra cash, bearing in mind that the flat was small in size and KY was already borne. 

77.  It should also be noted that according to P, when the parties purchased the Nan Fung Sun Chuen Property in 1975, since they did not have sufficient money they negotiated a special deal with the developer.  The price was $145,000.  Instead of paying 30% down payment (ie $43,500) by 36 monthly instalments of $1,208 each, they paid $5,000 as down payment and another $5,000 handling charge and chose to pay monthly instalments of about $950 each.  At the end, they managed to have it sold about 2 years later before the issuance of the occupation permit with a handsome profit of about $280,000.  The amount of profit is disputed by R but it is not relevant here.  What is relevant is according to R, she should still have $51,000 with her after the purchase of the Antung Property (or even less because the legal costs, stamp duty and renovation costs were too paid out from the Seed Money).  R did not deny the assertion regarding the $5,000 deposit in her affirmation dated 1 November 2012.  In the same affirmation, she said she used part of the remaining balance of the Seed Money to pay the deposit and sold the property after about one year before completion.  She said she has little recollection of this property except that she made a profit big enough for her to pay off the mortgage of the Antung Property and purchase the Carson Mansion Property.  It is important to note that she did not say she used any of the Seed Money to purchase the Carson Mansion Property or indeed any other subsequent properties.  In other words, there was no mention of the use of the remaining Seed Money if it was initially in the sum of $100,000.  The implication is that she had exhausted the Seed Money after the Nan Fung Sun Chuen Property.  This is somewhat inconsistent with what she said in trial where she said if she had made use of all the Seed Money in the purchase of the Antung Property, she would not have the money to buy the City Garden Property.

78.  Therefore, on the above analysis, while I do not accept that R came from an overly wealthy family as alleged, I accept that she had some seed money.  However, it is doubtful as to whether R had as much as $100,000.  Doing the best I can, on the evidence that she paid about $50,000 for the Antung Property, another $10,000 for the Nan Fung Sun Chuen Property together with 1 to 2 years’ instalments of $950 per month, I reckon that she probably had about $80,000 at that time. 

(2) Transfer of WF Shares

79.  Some 4 years after the parties had separated, on 31 July 2004, P’s 4,999 shares in WF, which was then holding the BH House, were transferred to KY.  There have been a lot of debates over the reasons for the transfer.

80.  Shortly stated, P’s case is that due to the SARS at that time there was a landslide in the real property market.  As a move to salvage the BH House in the event that the mortgagee bank called for repayment of the loan if the price continued to fall, he transferred the shares to KY who was then having a well paid job with HSBC.

81.  R gives an entirely different version: P’s transfer was initiated by him unilaterally and was a desperate attempt on his part to get rid of his liabilities to the mortgagee bank in the event the property became a negative asset. 

82.  It is important to note that at the time of the purchase, both P and R had given their joint and several guarantee in favour of the bank to secure the mortgage loan.  However, the guarantee was not dealt with at the time of the transfer. It was not until 21 November 2007 that the guarantee was released upon the re-mortgage of the property by R. 

83.  In his affirmation, P said the transfer of the shares and change of directorship in WF was triggered by the poor performance of FPC.  He claimed he was asked by R to transfer his 4,999 shares to the daughter, as she would be a better guarantor for further credit.

84.  In evidence in chief, he gave a more detailed account on the course of the events.  He said that R discussed with him and suggested to invite KY to become a shareholder.  KY agreed and even agreed to provide some funds but if she was to take up the guarantee, she needed a controlling share in WF.  At first, P suggested to R that the shareholdings could be arranged so that KY was to have 40% and each of them to have 30%.  As for the guarantee, it would be remained unchanged for the time being.  He believed that in case of need, KY would assist.  The transfer was just a precautionary measure.  In response, R proposed P to transfer his shares to KY and that was the final agreement which was acceptable to KY.  He added that at that time, the agreement and intention was to change the shareholdings only and that in the meantime he and R remained as guarantors. There should not be any change lest the bank would be alerted.  This was something that P and R would not wish to happen.

85.  P maintained that he did not wish to transfer the shares; it was done at the request of R only because she worried about the situation.  He also maintained that the property was not a negative asset but R refused to sell it.  In any event, he signed the relevant documents in about the Christmas time of 2003 and not on 31 July 2004 as shown on the documents. The letter of release issued by the bank was produced by P in the present proceedings.  He received this document from R in about 15 December 2007.

86.  R agreed that the market value of the BH House had dropped significantly at the material time.  P, being a shareholder and co-guarantor, was very afraid that the BH House would become negative equity and he would be sued by the bank.  He was adamant to shed all his liabilities.  He then transferred all his shares in WF to KY and asked her to take up the role of guarantor in his place.  She added that to change the shareholder of WF or the guarantor of the mortgage was something that she would definitely avoid as it might trigger the bank to review the then existing terms of the loan to less favourable terms.  It was a highly risky exercise.  In evidence, she said P wanted to have the property sold as soon as possible but she disagreed, so she conceded to P’s request for the shares to be transferred. She did not inform the mortgagee bank of the transfer and at that time the bank did not demand repayment of the mortgage loan. 

87.  KY’s evidence is more or less the same as that of R.  She said it was at P’s insistence that the shares were transferred.  She emphasized that she never asked for any controlling shares.  Further, at the time of transfer, there was no specific discussion between her and P over the guarantee; the focus was simply not there.  The impression I got from this witness is that she was really very mad with P because he was the culprit destroying the family.

88.  Ms Yip challenged that P has given 5 versions.  P’s version in court is different from what he said in the affirmation.  There was no mention of his proposal of 40%, 30% and 30% division in his affirmation.  Further, if KY was willing to help anyway, there was no need to have the shareholdings transferred.  There was also no need for P to resign as the company’s secretary.  She also challenged that when P made the affirmation he mentioned that the arrangement was for KY to become the guarantor but this was not what he said in court.  

89.  I accept there are inconsistencies in P’s testimony and the challenges by Ms Yip are certainly forceful and valid.  However, in my judgment, both parties’ evidence is far from satisfactory. 

90.  R was evasive when it came to the guarantee.  She claimed she did not have much recollection about it. She did not know whether P had been a guarantor in her property transactions and as regards WF in specific, she could not recall whether she and P had given the guarantee.  In fact, she even said that both P and she were not aware of having given a guarantee at that time.  She believed P would be relieved of his liabilities if he ceased to be a shareholder and the matter was over after the transfer was done.  Under cross-examination, she even claimed that P was a co-guarantor for his FPC’s overdraft facilities only and so it was not anyway related to the property.  This is in great contrast to and is inconsistent with what she said in her affirmation dated 1 November 2012 that the guarantee was in relation to the property. When being confronted with the letter of release dated 21 November 2007 she doubted the truthfulness of the letter, though its authenticity was never challenged.  I do not find this credible. 

91.  It should also be noted that under cross-examination, at one stage she denied she and P were the guarantors.  If this were true, then her affirmation dated 1 November 2012 where she said P asked KY to take up the role of guarantor in his place must not be the truth.  Further, if the guarantee is in respect of the overdraft facilities, her investment would be adversely affected if P failed to honour his liabilities.  It should be born in mind that by then the parties had separated for 4 years.

92.  R is and was a seasoned property investor.  The parties chose to purchase their investments by way of a limited liability entity.  There is no reason why she was not aware of the fact that she and P had given a guarantee and her liabilities under it. 

93.  KY said at that time she had just completed training in the bank.  To me, this is far from the truth.  It is clear the she tried to downplay her position and hence her financial capacity at that time.  She sided with R probably because P betrayed R for having an affair with Madam Lam.

94.  KY graduated from the university with a First Class Honours degree and had since graduation worked with HSBC.  Despite Ms Yip’s challenge that P did not know KY’s position with HSBC and had no knowledge of her income, the objective fact is that KY was then 30 years old.  By that time, she had already joined HSBC for about 7 to 8 years; and she was the fund manager of a trust fund, albeit according to her it was the smallest in terms of the value of the fund.

95.  KY maintained that she had not seen the bank’s letter of release before.  Though she was the shareholder and director of WF, she did not learn of this letter until this litigation.  R never mentioned this letter or the guarantee to her.  She denied having knowledge of the release back in 2007.  Mr Chu suggested it is unreasonable for KY, as a fund manager by training, not to be aware of the guarantee.  I agree. As a graduate majoring in Accounting and Finance and as a banker, there is no reason why she was not aware of the guarantee - a form of security normally required by financial institutions - if the transactions were carried out by way of a limited liability vehicle.  I also agree with Mr Chu that it is unreasonable for KY not to have checked at that time whether P would have been relieved of his liabilities.  Definitely she knew far better than her father that there was actually without much risk at all for her to become a shareholder per se; and that was what actually happened.  She did not need to pay anything and if the property had to be sold as a negative asset, she did not have to be liable for the shortfall. 

96.  There is also a material inconsistency in her evidence in that in chief, KY gave evidence that one day P prepared all the documents, handed over them to her and told her that he had to withdraw (準備哂所有文件, 然後交比我話要退股) but in cross-examination she said she asked her friends in the accounting profession on the forms to be obtained and the procedure to be taken on transfer of shares.

97.  I believe this issue can be resolved on the basis of inherent probability of the parties’ case.

98.  R’s version would be true on the basis of 2 premises.  First, P was mistaken as to his legal position as a shareholder of a limited liability company; and second, he and for that matter, everyone forgot about the guarantee or was mistaken that no guarantee had ever been made. In trial, Ms Yip suggested inference could be drawn that at that time P mistook that his guarantee was released by transferring the shares to KY and by resigning as a secretary of WF but I note she did not raise this point again in her closing submissions.

99.  Both P and R, probably by virtue of their position as directors of WF, had given their guarantees for the mortgage loan and it was not until 2007 when R re-financed the property that the joint and several guarantees were released.  If P’s objective was to have him released from the liabilities of this piece of asset, given that being a shareholder per se would not be liable for the debt of the company, he did not have to worry about the property being turned to a negative asset.  The transfer of the shares to KY would not have alleviated his worries.  What really threatening must be the guarantee that he had given.  Though P is not a well educated or a sophisticated person, the undisputed evidence is that it was P who was responsible for the preparation of the annual returns of WF up to 2003, thus it is quite inconceivable that he did not know this basic principle or he would have forgotten the guarantee that he had previously given.  If P was desperate in shedding his liability towards the bank, he must have been very anxious to ensure that his liabilities under the guarantee had been released.   

100.  R gave evidence that for the reason that FPC required overdraft banking facilities, she gave 4,999 shares of WF to P so as to facilitate the application.  If that was the case, given that the parties had already separated and bearing in mind how anguish she was at time towards P for the affairs that he had with Madam Lam, there is no reason why P’s guarantee or the overdraft facilities had not been dealt with at the time of the transfer.

101.  According to KY, at about the time after the SARS epidemic but before the transfer of the shares she offered to buy a small flat for her parents to live together.  Though the offer was rejected outright by P, this is indicative that their relationship was not as bad as R would have put it as otherwise KY would not have made the offer at all.  Clearly, neither party was contemplating a divorce at that time.

102.  Thus analyzed, I consider that P’s version is closer to the truth. 

103.  Taking one step backward, even with all the good arguments R has, if one looks at the situation objectively, the risk that P had been exposed to arising from the personal guarantee that he gave as a security for the purchase of BH House, whether knowingly or not, was both real and substantial right up to November 2007.  R said that all the properties belonged to her and she made all the decisions.  In that case, one may wonder why P had to give such a guarantee if it had not been under the arrangement of R and for the fact that he was the husband of R.

The Law and Legal Principles on Ancillary Relief

104.  The jurisdiction of the court in granting financial provision for a party is governed by section 4 of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”).  Pursuant to sections 6 and 6A of the same legislation, the court also has the power to grant orders for transfer, settlement or sale of properties.  In deciding on how to exercise its power in this regard for a party to the marriage, the court is bound to consider the principles set out in section 7 (1) of MPPO.  These principles are to be interpreted in the light of the Court of Final Appeal judgment in LKW v DD (2010) 13 HKCFAR 537.  I will follow the steps set out by Mr Justice Ribeiro PJ in that judgment in the consideration of the application before me.  As the parties have no dispute over the principles and the 5 steps to be applied, it is not necessary for me to set them out here.

Financial Resources of the Parties

Identifying the Parties’ Assets

105.  There are only a few items that I need to deal with.

P’s Assets

106.  P had one substantial asset only.  It was a flat in Dongguan which, according to P’s evidence, he spent most of the time there in post separation period.  Notwithstanding that the flat was sold in 2013 for $1,200,000 for funding the present litigation, Mr Chu agreed on behalf of P that the sale proceeds be accounted for and should go into the matrimonial pot.

107.  P’s assets and liabilities are as follows:

The Petitioner’s Assets and Liabilities

Nos	Assets	Amount (HK$)
		(Round up to nearest dollar)
1.	Dongguan Property	$1,200,000
2.	Cash at Bank	$73,813
3.	Value of Stock	$246
		____________________
	Total:	$1,274,059
Nos	Liabilities	Amount (HK$)
		(Round up to nearest dollar)
4.	Loan from Bank	($51,227)
		____________________
	Net Value:	$1,222,832

108.  P’s assets are largely undisputed.  On the evidence before me, the value of his business is insubstantial; accordingly I have not given a value to it.

109.  I accept in spite of the fact that he has been earning some income on ad hoc basis, by and large P has retired.  I find that his earning capacity is negligible. His constant stream of ‘income’ is the monthly $3,000 living expenses contributed by KY. 

Liabilities of P

110.  R said she lent a total of $750,000 to P between 2009 and 2010 but P was adamant that he got $550,000 only.  It is true that from the bank statements produced by R, it shows up to 7 November 2009 there were deposits of total sums of $750,000 into the parties’ joint account.  He explained that on 3 November 2009 a sum of $200,000 was deposited by R but the same amount was withdrawn by her the next day.  Thus, he got $550,000 only.  His letter dated 7 November 2009 pleading for a further loan of $40,000 referred to his indebtedness at $550,000 only and it is not in dispute that no further loan was advanced by R since the letter.  I consider that P’s version is more credible.  

111.  As for the other liabilities, P’s 1^st Form E dated 27 October 2010 reported that he had no debts or liabilities but his 2^nd Form E dated 8 July 2013 reported his liabilities at $114,412, of which $50,000 was owed to a friend in the name of Lam, the other two items were owed to banks.  However, his Answers dated 31 July 2013 failed to disclose any list of creditors or the relevant particulars.  It was only in his Answers dated 11 October 2013 that he provided a list of creditors from 2010 to 2013, with 2012 debt-free, at the total sum of $227,210.  He explained he did not do so because there were no written proofs.  To me, he does not have any plausible explanation as to why he failed to list them out in his Form Es.  Further, under cross-examination, his evidence regarding his liabilities to friends has shown to be entirely unbelievable.  For these reasons, I have not included these alleged loans.

112.  P has not included the $550,000 debt owed to R in his Schedule as liability.  Therefore, adjustment has to be made and the value of his net asset comes down to $672,832 ($1,222,832 - $550,000).

R’s Assets

113.  R accepted in evidence that she has been managing her investment portfolio like a business.  Thus, clearly she still has substantial earning capacity.

114.  As for the assets and liabilities of R, the details have been set out in her Re-Re-Amended Schedule of Assets and Liabilities; I do not think I need to repeat the same here.  I will just give a brief table outlining her assets and liabilities as below,

The Respondent’s Assets and Liabilities

Nos	Assets	Amount (HK$)
		(Round up to nearest dollar)
5.	8 Landed Properties	$64,034,093
6.	Cash at Banks	$1,553,945
7.	Insurance Policies	$265,618
8.	Loans owed to Respondent	$2,565,188
		____________________
	Total:	$68,418,844
Nos	Liabilities	Amount (HK$)
		(Round up to nearest dollar)
9.	Outstanding Mortgage Loans (8 Landed Properties)	$23,443,282
10.	Credit Cards Loans and	$12,034,157
	Other Liabilities
11.	Companies Liabilities	$3,808,878
12.	Potential Liabilities(Building Order re: BH House)	$3,310,000
		____________________
	Total	$42,596,317
		____________________
	Net Value:	$25,822,527

115.  There are a couple of items that require adjustments.

Liabilities of R

116.  R’s reported liabilities (except outstanding mortgage loans on the properties) have increased from $461,109 on 5 May 2011 to $3,741,112.35 on 25 July 2013.  Sometime later, her Re-Re-Amended Schedule of Assets and Liabilities dated 13 January 2014 further stated her liabilities at $15,843,035. 

117.  As for the outstanding mortgage loans of the properties, from about September 2013 to December 2013, she re-mortgaged 4 of her properties raising a total of $13,818,000.  The original outstanding mortgage sums were $2,091,000, the net result was that extra funds of $11,727,000 were realized.  

118.  I agree with Mr Chu that the situation is alarming. 

119.  A significant portion of the surging liabilities was an alleged unauthorized overdraft of about $10,065,500 owed to HSBC.  That was incurred arising from her foreign exchange trading.  In support of this she produced a letter dated 2 October 2013 from the bank stating that as at 24 June 2013 there was an outstanding amount of $10,057,499.57.  R said the bank would only issue a letter and no statement would be issued.  Notwithstanding that the letter stated that the bank would pass her case to a debt collection agency, R was adamant that the letter was just something a matter of procedure and the bank would not really chase her for the return of the money.  The bank would allow her to wait for the rise in the currency and would not chase her for payment provided that she was to pay interest at the rate of 13% per annum.  Her evidence seemed to suggest the amount of the unauthorized overdraft would be liable to fluctuate depending on the ups and downs of her foreign exchange portfolio.  If this sum needed not be repaid and it seems quite clear to me that R was not minded to repay, I wonder how this could be loans in the real sense.  Further, Mr Chu was correct to point out that R did not state this amount of indebtedness in her Form E dated 25 July 2013, and instead, she only disclosed an unauthorized overdraft of $2,311,352.75.  R did not have any plausible explanation on this.  To me, there is no reason why R was not aware of this huge sum of liabilities at the time of her Form E.  At an interest rate of 13% per annum, $10,000,000 would mean a sum of $1,300,000 per year or $108,333 a month.  There is no reason why she did not make use of at least some of the funds realized from the re-finance of her properties (dealt with below) to repay at least part of the overdraft amount.  I find that R failed to prove her liabilities.  I would exclude $10,065,500 as R’s liabilities.

120.  As for the re-finance exercise resulting in the liquidation of funds of $11,727,000, to begin with, it would appear that R’s Re-Re-Amended Statement of Assets and Liabilities is incorrect in that as confirmed by R in evidence, she did not re-mortgage the 2^nd East Asia Property, hence the extra sum realized should only be$10,797,768. 

121.  R was rather ambiguous as to why she needed to do this.  I must confess I do not fully understand what she said about the reasons for the re-mortgage.  She initially mentioned that she liquidated the cash for further property or other investment and for her legal costs.  Then, she said legal costs were not material because she had funds ready for the purpose.  She then said the main reason was because of the present proceedings.  It seemed that she finally rested her case on the financial difficulty caused to her by P.  She alleged that P posed as the owner of her properties and notified the estate agents that the properties were not to be leased but to be sold and even falsely represented that some of the properties had been sold.  These caused her not being able to have the BH House and Shop 50 rented out so she needed extra monies for mortgage payments.  Up to the date of evidence, she had been paying an extra sum of $149,000 each month for the last 6 months to cover mortgage payments and other expenses.  She also said she needed money for reinstatement or renovation because the BH House was infected with termites and according to the quotation it would cost her over $3,310,000.

122.  I agree with Mr Chu that the circumstances under which R had to do the re-finance, in particular, the 4 properties in one go, are highly suspicious.  What sounds unconvincing is why she had to re-finance Shop 50.  The original outstanding mortgage was merely $499,000 and the monthly mortgage payment was merely $14,000 but after the re-finance, the new mortgage loan was $6,799,320 (her 99% share in LTS) and the mortgage payment soared to $49,800.  To me it does not make sense.  If she did not involve Shop 50 in the exercise, her alleged extra payment each month would be $35,800 less.  As a matter of fact, she gave evidence that her initial intention was to have one property re-financed only but it turned out that there were altogether 4 properties.

123.  The re-finance exercise is essentially a form of liquidation.  In theory, the assets have been transformed into cash and per se would not have been dissipated.  Her legal costs are estimated to be in the region of $2,600,000 and the reinstatement costs for BH House are estimated to be in the region of $3,310,000, both are listed as potential liabilities, which means they have not been paid yet.  There is also no evidence on what further or other investments she has brought by making use of the extra funds.  Therefore, as at the date of the hearing, it would appear that apart from the alleged monthly payment of $149,000, a substantial portion of the money would still be in the hands of R.  To this, she agreed.  

124.  R was unclear as to where the money had gone.  Upon the court’s enquiry, she replied that the money was deposited into her companies’ accounts but according to her Re-Re-Amended Statement of Assets and Liabilities, LTS and WF do not appear to have this sum of money in their accounts.  Neither do her other accounts on the Schedule have record of this money.  Further, as said above, if R was in such a financial difficulty, I fail to see why she did not see it fit to have some of her unauthorized overdraft repaid.

125.  There is no application before me under section 17 of MPPO to have the re-finance transactions set aside. What I should do is to deduct $10,797,768 from her liabilities.

126.  There is also the cost for the replacement of the lift at the Kai Wong Property.  Apparently the cost should have already been paid and the same should be LTS’s responsibility.

127.  Despite the quotation provided by R, I have great reservation over the amount required for the reinstatement of the BH House.  What is before me is a stretchy quotation without concise breakdown or particulars.  It looks overly unreal for a quotation of over $3 million.  I incline to agree with Mr Chu that the quotation is overly exaggerated.  In any event, R should only be responsible for 50.01%.  On this basis, I would take P’s figure of $2,210,000; I give a figure of $1,105,221 ($2,210,000 X 50.01%).

128.  Lastly, for the reason that I find P owes R $550,000 only, a deduction of $200,000 has to be made on R’s assets. 

129.  On the above analysis, I add back the following sums to the assets:

1.	Unauthorized Overdraft	$10,065,500
2.	Money from Re-finance	$10,797,768
3.	Replacement of the Lift at the Kai Wong Property	$11,394
4.	The excess of Reinstatement Costs	$2,204,779
5.	Deduction of $200,000 (part of loan rejected by court)	($200,000)
	Total:	$22,879,441

130.  It should be noted that I have not included the parties’ potential legal costs as liabilities.  

131.  Thus, the net value of R’s assets is $48,701,968 ($25,822,527 + $22,879,441) and the total family asset is in the region of $49,374,800 ($672,832 + $48,701,968).

Financial Needs of the Parties

132.  P was cross-examined on his financial needs on the basis that he will be living in the Mainland.  In response, he said that he has not decided where to live yet.  Then, subsequently he confirmed that he is not going to live in the Mainland and has decided to live in Hong Kong.  It is hard to believe that he was able to make such a decision in just a few minutes’ time.  Mr Chu conceded that P has not made his financial needs clear since all along he is asking for sharing the family assets.  Be that as it may, I agree with Mr Chu that on the evidence before me, wherever P is going to live, his needs are not substantial.

133.  As regards R, she stated in her up-dated Form E dated 25 July 2013 that she needs about $211,600 per month.  However, I have to agree with Mr Chu that a substantial part of R’s financial needs are generated by the purchase and the maintenance of the assets and such position could always be improved by liquidating some of the mortgaged properties.

The Sharing Principle

134.  The modern law of ancillary relief treats marriage as a marital partnership with husband and wife each pulling their weight and discrimination between roles impermissible:  White v White [2001] 1 AC 596.  This is a relationship lasting in reality nearly 28 years up to their separation in July 2000 which by any standard is undoubtedly long.  Further, the parties have raised a family of 2 children, both grown up, highly educated and independent.  The concept of fairness requires the refutation of any gender or role discrimination (PJ Riberio in LKW v DD (2010) 13 HKCFAR 567, at para 57).  Apparently, the yardstick of equality should apply. 

Whether there are Good Reasons for Departing from Equal Division

135.  As said, it has been contended by Ms Yip that there are 2 major departing factors, namely (1) separate finance and (2) long separation of the parties.  There are also two minor ones, being R’s illiquidity and the clean break of the parties.

Separate Finance – The Law

136.  R claimed that throughout all these years, P had his own jobs at the early stage and later operated his own FPC business during which he kept all his receipts and made his own savings. In the absence of R’s knowledge, he also chose to make use of his own money to purchase the Dongguan Property.

137.  On her part, she did the same by keeping her own savings from her income, and making use of her own financial resources in the purchase of successive landed properties; in particular, prior to their marriage, she accumulated through her own effort the Seed Money, out of which she purchased the 1^st matrimonial home and kick-started her investment in real properties.  Thus, all these properties were purchased with her own financial resources and at her own decisions without reference to P or indeed anyone else.  In short, R said that throughout the marriage they had a practice of keeping their finances and investment portfolio entirely separate and independent.  For this reason, her finances and investment portfolio should be considered separate from P’s money and FPC business.

138.  Ms Yip referred to R’s assets acquired in this manner as ‘unilateral assets’.  She relied on what Baroness Hale of Richmond said at Para 153 in Miller v Miller and McFarlane v McFarland [2006] 2 AC 618:

[153] This is simply to recognise that in a matrimonial property regime which still starts with the premise of separate property, there is still some scope for one party to acquire and retain separate property which is not automatically to be shared equally between them. The nature and the source of the property and the way the couple have run their lives may be taken into account in deciding how it should be shared.

139.  In the case of a long marriage, as it is here, Ms Yip referred to para 25 of the same judgment where Lord Nicholls said:

With longer marriages the position is not so straightforward.  Non-matrimonial property represents a contribution made to the marriage by one of the parties. Sometime, as the years pass, the weight fairly to be attributed to this contribution will diminish, sometimes it will not.  After many years of marriage the continuing weight to be attributed to modest savings introduced by one party at the outset of the marriage may well be different from the weight attributable to a valuable heirloom intended to be retained in specie.  Some of the matters to be taken into account in this regard were mentioned in the above citation from White’s case.  To this non-exhaustive list should be added, as a relevant matter, the way the parties organized their financial affairs.

140.  She further cited what Baroness Hale said at para 153:

Take, for example, a genuine dual career family where each party has worked throughout the marriage and certain assets have been pooled for the benefit of the family but others have not.  There may be no relationship-generated needs or other disadvantages for which compensation is warranted.  We can assume that the family assets, in the sense discussed earlier, should be divided equally. But it might well be fair to leave undisturbed whatever additional surplus each has accumulated during his or her working life.  However, one should be careful not to take this approach too far.  What seems fair and sensible at the outset of a relationship may seem much less fair and sensible when it ends.  And there could well be a sense of injustice if a dual career spouse who had worked outside as well as inside the home throughout the marriage ended up less well off than one who had only or mainly worked inside the home.

141.  It was contended by Ms Yip that the way in which the parties organized their financial affairs is relevant and should be considered.  Applying the principles, the court should not disturb the modus operandi that the parties had adopted during the marriage. The facts of the case clearly reflect that there had not been a pooling of the parties assets towards R’s property investment portfolio. Therefore, it is only fair that what she had accumulated in her property investment portfolio should be undisturbed.  She argued that this kind of unilateral property category has been endorsed by Lord Mance at Para. 170:

“…Once needs and compensation have been addressed, the misfortune of divorce would not of itself, as it seems to me, be justification for the court to disturb principles by which the parties have chosen to live their lives while married”

142.  She further argued that this statement heralded the English Court of Appeal’s approach in Charman v Charman No. 4 [2007] 1 FLR 1246 of a movement towards distributing assets more and more on “the principles by which the parties had chosen to live their lives while married”: para 86 of Charman.  This is also consistent with the judicial trend to an increasing recognition of matrimonial agreements, be they ante-nuptial, post-nuptial, or intra-nuptial: see Granatino v Radmacher [2011] 1 AC 534.

143.  After the conclusion of the trial, it has come to my attention that our Court of Appeal has discussed the very issue in ARAV v VP, LJ also known as PJ [2011] 3 HKLRD 759.  I do not know why this case was not referred to me.  I do consider that I am owed an explanation as to why this case was not brought to my attention during the course of the trial.

144.  Speaking of Separate Finance, Hon Fok JA (as he then was) said as follows:

Separate finances

81. The issue here is whether the financial arrangements between the parties during the marriage was such as to give rise to an agreement that upon divorce each party should retain such assets that he or she was respectively left with.  The wife contends that they should.

…

87. In support of the wife’s contentions on this issue, Mr Coleman relied on the speech of Baroness Hale of Richmond in Miller v Miller and McFarlane v McFarlane [2006] 2 AC 618 at §§150-153 supporting a concept of unilateral assets which ought not to be subject to the sharing principle upon divorce:

“150. More difficult are business or investment assets which have been generated solely or mainly by the efforts of one party. The other party has often made some contribution to the business, at least in its early days, and has continued with her agreed contribution to the welfare of the family (as did Mrs Cowan). But in these non-business-partnership, non-family asset cases, the bulk of the property has been generated by one party. Does this provide a reason for departing from the yardstick of equality? On the one hand is the view, already expressed, that commercial and domestic contributions are intrinsically incommensurable. It is easy to count the money or property which one has acquired. It is impossible to count the value which the other has added to their lives together. One is counted in money or money's worth. The other is counted in domestic comfort and happiness. If the law is to avoid discrimination between the gender roles, it should regard all the assets generated in either way during the marriage as family assets to be divided equally between them unless some other good reason is shown to do otherwise.

151. On the other hand is the view that this is unrealistic. We do not yet have a system of community of property, whether full or deferred. Even modest legislative steps towards this have been strenuously resisted. Ownership and contributions still feature in divorcing couples' own perceptions of a fair result, some drawing a distinction between the home and joint savings accounts, on the one hand, and pensions, individual savings and debts, on the other (Settling Up, para 128 earlier, chapter 5). Some of these are not family assets in the way that the home, its contents and the family savings are family assets. Their value may well be speculative or their possession risky. It is not suggested that the domestic partner should share in the risks or potential liabilities, a problem which bedevils many community of property regimes and can give domestic contributions a negative value. It simply cannot be demonstrated that the domestic contribution, important though it has been to the welfare and happiness of the family as a whole, has contributed to their acquisition. If the money maker had not had a wife to look after him, no doubt he would have found others to do it for him. Further, great wealth can be generated in a very short time, as the Miller case shows; but domestic contributions by their very nature take time to mature into contributions to the welfare of the family.

152. My lords, while I do not think that these arguments can be ignored, I think that they are irrelevant in the great majority of cases. In the very small number of cases where they might make a difference, of which Miller may be one, the answer is the same as that given in White v White [2001] 1 AC 596 in connection with pre-marital property, inheritance and gifts. The source of the assets may be taken into account but its importance will diminish over time. Put the other way round, the court is expressly required to take into account the duration of the marriage: section 25(2)(d). If the assets are not 'family assets', or not generated by the joint efforts of the parties, then the duration of the marriage may justify a departure from the yardstick of equality of division. As we are talking here of a departure from that yardstick, I would prefer to put this in terms of a reduction to reflect the period of time over which the domestic contribution has or will continue (see Bailey-Harris, "Comment on GW v RW (Financial Provision: Departure from Equality)" [2003] Fam Law 386, at p 388) rather than in terms of accrual over time (see Eekelaar, "Asset Distribution on Divorce - Time and Property" [2003] Fam Law 828). This avoids the complexities of devising a formula for such accruals.

153. This is simply to recognise that in a matrimonial property regime which still starts with the premise of separate property, there is still some scope for one party to acquire and retain separate property which is not automatically to be shared equally between them. The nature and the source of the property and the way the couple have run their lives may be taken into account in deciding how it should be shared. There may be other examples. Take, for example, a genuine dual career family where each party has worked throughout the marriage and certain assets have been pooled for the benefit of the family but others have not. There may be no relationship-generated needs or other disadvantages for which compensation is warranted. We can assume that the family assets, in the sense discussed earlier, should be divided equally. But it might well be fair to leave undisturbed whatever additional surplus each has accumulated during his or her working life. However, one should be careful not to take this approach too far. What seems fair and sensible at the outset of a relationship may seem much less fair and sensible when it ends. And there could well be a sense of injustice if a dual career spouse who had worked outside as well as inside the home throughout the marriage ended up less well off than one who had only or mainly worked inside the home.”

88. He also relied on paragraph 170 of the speech of Lord Mance as further support for this approach:

“Fourthly, and whatever the position on the third point, I agree with what Baroness Hale has said in paragraph 153, which is, as I see it, also consistent with the last sentence of paragraph 25 of Lord Nicholls' speech. The present marriage had what one might call a traditional aspect. Mr Miller worked, and Mrs Miller gave up work to look after him. But there can be marriages, long as well as short, where both partners are and remain financially active, and independently so. They may contribute to a house and joint expenses, but it does not necessarily follow that they are or regard themselves in other respects as engaged in a joint financial enterprise for all purposes. Intrusive enquiries into the other's financial affairs might, during the marriage, be viewed as inconsistent with a proper respect for the other's personal autonomy and development, and even more so if the other were to claim a share of any profit made from them. In such a case the wife might still have the particular additional burden of combining the bearing of and caring for children with work outside the home. If one partner (and it might, with increasing likelihood I hope, be the wife) were more successful financially than the other, and questions of needs and compensation had been addressed, one might ask why a court should impose at the end of their marriage a sharing of all assets acquired during matrimony which the parties had never envisaged during matrimony. Once needs and compensation had been addressed, the misfortune of divorce would not of itself, as it seems to me, be justification for the court to disturb principles by which the parties had chosen to live their lives while married.”

89. Mr Coleman submitted that, whereas family assets, such as Bloomville, should be divided equally, separate property should be left “undisturbed whatever additional surplus each has accumulated during his or her working life” (Miller/McFarlane §153).  In the present case, he submitted, both the husband and wife had an equal benefit from Bloomville and chose to use that benefit separately as each saw fit.  That was how the parties had “chosen to live their lives while married” (Miller/McFarlane §170).

90. In Charman v Charman (No. 4) [2007] 1 FLR 1246 at §86, Sir Mark Potter P noted that Lord Mance’s extension of the concept of unilateral assets may:

“… have foreshadowed future, albeit no doubt cautious, movement in the law towards a more frequent distribution of property upon divorce in accordance with what, by words or conduct, the parties appear previously to have agreed.”

91. In support of the trend of the courts to uphold contractual bargains made by parties to a marriage, whether before, during or after marriage, Mr Coleman cited a number of cases, including the recent decision of the UK Supreme Court in Radmacher v Granatino [2010] 3 WLR 1367.

92. However, the present case is not a case involving a formal pre- or post-nuptial agreement or any express agreement.  Instead, the wife’s case is based on a tacit or implied agreement that upon divorce each party should retain such assets that he or she is respectively left with.  The question here is simply whether, on the facts, a relevant agreement to keep finances separate in the event the marriage should come to an end has been demonstrated.

93. On the facts of this case, I do not consider that an agreement to the effect relied upon by the wife should be implied.  The fact that the couple kept their financial arrangements separate in the manner found by the Judge does not, in my opinion, give rise to an inference that they agreed that their respective assets should be ring-fenced in the event of a divorce.

94. The cross-examination of the husband below indicates that the commerciality of the arrangements between the couple were due to the wife’s insistence, over which he had “no choice”.  But, in any event, the separation of the parties’ finances, exemplified by the charging of interest on loans made by the wife to the family companies and the payment of rent by Bloomville for the occupation of the matrimonial home do not, in my view, give rise to a pressing inference of a post-nuptial agreement of the nature claimed by the wife.  There may have been many sound reasons for adopting these arrangements without implying the agreement contended for.  That those reasons do not appear to have been fully developed in the evidence appears to derive from the fact that the existence of a post-nuptial agreement to isolate each parties’ separate assets in the event of a divorce does not appear to have been put to the husband in cross-examination.  (In this respect, I should note that neither Mr Coleman nor his junior, Mr Jeremy Chan, appeared below.)

95. Mr Shieh submitted that this was not a case where the wife had inherited assets which she brought to the marriage.  She did not have a separate career as such.  Instead, she obtained an income from the family business, Bloomville, and invested her salary.  The matrimonial home was purchased using a dividend declared by Bloomville from the sale of a previous matrimonial property.  It would appear that much of the increase in value of the assets in the wife’s hands derived from increases in the property market. I would accept these submissions.

96. No finding of an agreement of an implied post-nuptial agreement of the nature now advanced by the wife was made by the Judge below and it does not appear that she was invited to make such a finding.  For that reason, I do not agree with Mr Coleman’s criticisms of paragraphs 104 and 105 of the Judgment.  On the facts of the case, I consider that the Judge was entitled to reject the invitation to depart from the yardstick of equality notwithstanding her acceptance of the way the parties conducted their financial relationship.

97. I would add that I also agree with the submission made by Mr Shieh that separate finance arrangements apply to many households in Hong Kong and finding that such arrangements give rise to the insulation or quarantine of such assets from division between parties in the event of a divorce would have far-reaching consequences. Although the present case involves a wife seeking to ring-fence her assets, it is not unlikely that in many marriages where separate finances are kept it is the principal breadwinner (whether husband or wife) who holds the bulk of the assets.  If the keeping of separate finances were too readily held to give rise to the type of post-nuptial agreement claimed in the present case, there would be a real risk of the weaker spouse being left without redress upon divorce.

98. In the light of my conclusion that the post-nuptial agreement relied upon by the wife is not supported on the facts, I do not consider it necessary to analyse the cases cited by Mr Coleman relating to such agreements because, in my view, this case is not the opportunity to consider enforceability of the different types of matrimonial agreements that have been considered by other courts in other proceedings or the extent to which the courts of this jurisdiction should or should not embrace the concept of unilateral assets within a marriage.

99. I would, however, note that the passages in Miller/MacFarlane on which the wife’s case is based should be considered with care.  In the first place, the comments of Baroness Hale and Lord Mance relied upon are strictly obiter.  Secondly, Lord Nicholls disagreed that separate business and investment assets should be immune from the sharing principle (see §§17 to 20).  Thirdly, the comments of Baroness Hale were made in the context of a short marriage and the present case is not such a marriage: on the contrary, it is common ground that this was a long marriage. Fourthly, Ribeiro PJ in LKW v DD at §97 indicated a tentative preference for the approach of Lord Nicholls.

100. It is to be noted that a similar argument based on separate finances was rejected by this court in W v H and Z, unrep., CACV 127/2008, 12.5.09 at §§54 to 57.  In my view, courts should be cautious lest they too readily imply post-nuptial agreements which might have the effect, if upheld, of ousting the discretion of the court under section 7. (emphasis added)

145.  Hon Tang Acting CJHC (as he then was) in the same judgment also opined as follows:

11. As for the Sorrento property which was first acquired by Bloomville in 2003 and later transferred to the wife in June 2004, even Baroness Hale who in Miller drew a distinction between ‘family assets’ and ‘non family assets’, such as business or investment assets not generated by the joint efforts of the parties, recognized the impact of the length of a marriage on these two types of properties.  In respect of the latter category of assets she said at paragraph 152 that,

‘If the assets are not “family assets”, or not generated by the joint efforts of the parties, then the duration of the marriage may justify a departure from the yardstick of equality of division.’

12. This means the departure will occur in short rather than long marriages.  This recognition is to give effect to one of the factors identified in the equivalent of section 7(1)(d) of MPPO, namely ‘the duration of the marriage’.

13. Lord Nicholls at paragraph 20 was disinclined to draw a distinction between ‘family’ assets and ‘business or investment assets’.  He held that the nature and source of the parties’ properties are matter to be taken into account when determining the requirements of fairness.

14. Ribeiro PJ observed in LKW under the heading of ‘Unilateral Assets’ that,

‘97. The difference of opinion is relatively narrow as it only relates to cases where the marriage is of short duration. The merits of the competing views are open to debate and it is not necessary to reach a firm conclusion in this judgment. I will content myself with saying that I am tentatively inclined to prefer Lord Nicholls’s approach as being simpler to operate and as avoiding the possible re-introduction of a discriminatory element into the exercise.’

15. In the present case the parties were married for 27 years from 1980 to 2007 and they had lived together for at least 24 years before they became separated.  This was a long marriage and in my view, the Sorrento property was rightly included as part of the family assets.”  (emphasis added)

146.  The wife’s contention of separate finance in the above case was rejected by the trial court and the Court of Appeal.  Her application for leave to appeal was also rejected by both the Court of Appeal and the Court of Final Appeal.

147.  As can be seen, the majority of our Court of Appeal has expressed the view that separate finance as a factor warranting departure is relevant to short marriages only.  Though one may argue that their views are obiter, they are of very high authority, in particular it should be noted that both Hon Tang and Hon Fok JJA are now in our Court of Final Appeal.  Further, Lord Nicholls’s approach that the court should be slow to introduce, or reintroduce, a distinction between “family” assets and “business or investment” assets is clearly preferred by Hon Ribeiro PJ.

Discussion

Financial Contribution

148.  R said P made no financial contribution towards the acquisition, loan repayment or upkeep of any of the said properties, whether before or after the separation. 

149.  It is important to note that R’s contribution issue is not raised in the context of the parties respective contributions to the welfare of the marriage, which the court is duty-bound by section 7(1)(f) of MPPO to have regard to.  Equally, R is not putting forward a case that her financial contribution is so special that she warrants a larger share in the division of the family assets.  Her case is that P has no share at all.  She is relying on P’s absence of financial contributions towards her investments in support of her contention of separate finance.  

150.  With the canonical opinion of the Court of Appeal that I have referred to above, R’s separate finance has become frail in the present long marriage case.  Accordingly, the contribution point, in the context that R tries to pursue, also loses much of its vigour. In any case, if ‘contribution’ is to be considered in the present context, it is only logical that both the financial and the non-financial aspects have to be considered.  

The Alleged Transfers of Monies from P to LTS, WF and R

151.  In response to R’s allegation of absence of financial contributions, P said the income he earned from his job as an insurance agent and later from FPC was used for the benefit of WF, LTS and R.  He produced FPC’s saving account and his personal saving account to show that there were relevant withdrawals from time to time over all these years in order to prove his financial contributions.  So he said from December 1994 to November 1999, sums of about $2,015,000 were transferred to R’s account, from 1994 to October 2000, about $1,220,970 were transferred to LTS’s account for mortgage payment, management fees, rates, auditors’ fee and business registration fees; and from June 1996 to November 2002, sums of about $765,251 were transferred to WF.  He further claimed that his contributions extended to sometime after they had separated.

152.  R denied; and in rebuttal, she said some of the deposits into FPC’s account were her loans and the withdrawals should be the repayment of these loans and the payment of rents for Shops 73 and 97.

The Entries

153.  P placed reliance on the records of his bank passbooks; and in particular on the handwritten markings or records that he made next to the relevant entries. 

154.  He gave evidence that if R was in need of money, he would deposit the money into her account.  Thus, there were markings showing a number of payments to R. 

155.  Apart from these, there were also said to be withdrawals, by way of examples, for:

(1) mortgage payments of Shops 73 and 97;

(2) mortgage payments for Shop 50 and specifically an entry of withdrawal of $5,000 on 4 June 1997 for the mortgage payment of Shop 50, which shop was never used by FPC;

(3) expenses of WF;

(4) the purchase of bricks for the Parkvale Property;

(5) rates and management fees for the Shops and also for the Parkvale Property;

(6) mortgage payment of the Parkvale Property and the payment for a golf-cart;

(7) payment for the mortgage of the BH House;

(8) payment for management fees of the Lee Wing Property and the 1^st East Asia Property;

(9) their son JB’s tuition fees;

(10) R’s and their son’s insurance premium;

(11) R’s tax; and

(12) even a payment for R’s cats’ sands. 

156.  Further, there was a withdrawal of $47,000 on 15 January 1997 for the mortgage payment of La Vista.  All in all, according to P, the monies were for business, investment and domestic purposes of the family. 

157.  Ms Yip challenged how P could have earned sufficient monies so as to enable him to make financial contributions.  On his income as an insurance agent, P initially said that his income was high in the first few years and his affirmation alluded that his business was good in 1991 but in light of the relevant tax returns produced by R which did not support his assertion that he earned $30,000 to $60,000 per month, he shifted to say that the business had already turned bad in 1991. 

158.  In relation to FPC’s business receipts, P’s bank passbooks caused criticisms from Ms Yip on the ground that not all the pages of the passbook had been produced to support his assertion about the sales volume of FPC.  Ms Yip challenged that there were more than 100 pages missing and the pages already disclosed did not show the receipts of total sums of $1,310,000 and $2,156,000 alleged by him.  

159.  Ms Yip also challenged that from the Profit and Loss Accounts of FPC produced by P, the sales volume could not support his assertion that he made use of the business receipts of FPC in support of mortgage payments for LTS.  In light of this, under cross-examination, when his back was against the wall, and when he was warned of the criminal implications, he said he had short-reported $300,000 to $400,000 per year.  For the year 1994/1995, he short-reported $300,000, so the sales should be about $1,300,000 and not $1,100,000 and for the year 1995/1996, he short-reported $700,000 so the sales were not $1,338,365 but in fact should be in the region or $2,015,000.  That said, he insisted that except the sales figures, the other figures on the Profit and Loss Accounts were true.

160.  More importantly, P accepted that at least 4 entries alleged to have been deposited into LTS’ accounts from FPC, being $92,000, $30,000, $100,000 and $100,000 on 27 October 1994, 29 October 1994, 9 November 1994 and 6 December 1994 respectively were proved to have been entirely wrong.

161.  Another entry was a sum of $25,000 on 2 January 1997 which P said was for the mortgage payment of Shop 50.  This must be wrong since the purchase of Shop 50 was only completed on 29 May 1997.  He also admitted to other wrong entries.  It is not necessary for me to set them out here.

162.  In cross-examination, P accepted that the entries, at least the more recent ones, were not entered contemporaneously.  In other words, at least some of them were post-dated.  

163.  He also admitted that FPC had a current account and there were movements between FPC’s savings account and its current account but the current account statements were not produced.

164.  He accepted WF had a saving account of which both he and R were signatories and it was possible that some of the deposits into FPC’s account were from WF.  However, he was adamant that it was not possible that withdrawals from FPC to LTS and to R were monies from WF; the reason being that WF’s own source of income, ie the rental income, would not be sufficient for its mortgage payments. There was simply no extra money for other purposes. 

165.  He also accepted that every time when he asked R for money for purchase of merchandises, she would deposit money directly into FPC’s saving account. 

Discussion

166.  To start with, in light of the various wrong entries and P’s admission that at least some of the entries were not marked contemporaneously, greatest care and caution should be exercised before accepting P’s evidence in this regard.

167.  With this in mind, in my judgment, it does not necessarily mean that all the entries are false and cannot be relied upon.  I have gone through the entries on the bank passbooks carefully; it appears to me it could not be the case where all the entries were marked or ‘created’ recently for the purpose of the present proceedings. It is also not the suggestion of Ms Yip.  Some of the records were on P’s borrowings from R or other party (for instance, CM).  Thus, there were markings of “owe Wendy” (“欠 Wendy”) or “owe Cindy” (“欠 Cindy”).  It simply cannot be the case that all the payments were for rents or loans as R tried to suggest.  In coming to this conclusion, I have taken into the evasiveness of R’s evidence on this subject matter when she was cross-examined.  I have also taken note of the fact that there were entries stating “paying rents” rather than making mortgage payments.  This is another reason why I consider the entries were not ‘created’. R’s complaint that P deliberately took away her documents including the old bank passbooks and records of LTS and WF and this impeded her defence in this regard is without substance.  Even on her own evidence, she was present all the time when P did the removal and she even assisted him in putting the documents into the plastic bags.  The conclusion I reach is that despite all the forceful challenges by Ms Yip, I accept that there were some payments made by FPC towards R’s investments.  For the present purpose, it is not necessary to conduct an audit in order to come to a conclusion as to what the figure was; nor is it possible.  

168.  At this juncture, it is appropriate for me to deal with the dealings between the parties after their separation.

169.  P gave evidence that after their separation, at his request and on one occasion, R made use of her TS Bank credit card and AE card for cashing some needy money to relieve his financial problem.  He repaid by depositing the monthly minimum payments directly into R’s account.  He said it was not until 2009 that these loans were fully repaid.  He did not ask R for further assistance because he was aware that R was also not financially in good shape.

170.  At the same time, R also cashed money by using her credit cards at FPC when she was financially tight. It appears that for some time after separation, P kept on making certain transfers from FPC account to R, apparently for easing some of her financial pressures.  Whilst accepting that this happened before separation, R was evasive to P’s assertion that she had made use of her credit card to obtain cash at FPC after the separation, in particular $100,000 for her own use on 13 October 2000.  The evidence is that as late as early 2001, R still continued to obtain cash via FPC.  For instance, there were records of $73,317.50 on 30 January 2001 and $71,416.14 on 22 February 2001.  Ms Yip accepted that this happened for a brief period of time after the separation but P maintained that it lasted until 2006.  P, however, did not produce any bank passbook up to 2006 in support of his assertion. 

171.  R seemed to agree that after separation P continued to make certain payments for her and LTS’ benefits. Some of the entries speak for themselves, for instance, there were 7 payments of government rates on 29 October 2000, January 2001 and July 2001. According to P, they were for payment of rates for Shop 97, Shop 50, Shop 73, the Lee Wing Property, the 1^st East Asia Property, the BH House and the Parkvale Property.  It is common ground that all the properties in Hong Kong were not in P’s name.  While it might be necessary for P to be responsible for the rates of the Shops that he was using, there is no reason why he needed to pay the rates of other properties, especially when the parties had separated.

172.  Also, on 4 September 2000, R deposited $20,000 into FPC’s account from which P paid the mortgage payment of the Lee Wing Property and the utilities of the Parkvale Property.  Again, these entries were post separation.  P testified that throughout all these years all the demand for utilities, management fees and rates were sent to FPC’s shop for his handling; that was the case even after he had left the matrimonial home.

173.  On 11 September 2000 there were 2 deposits by R in the sums of $5,400 and $400 and according to the markings they were for transmitting to their son in the US. 

174.  There was also an entry of withdrawal of $342.57 on 14 August 2001.  P said this was for payment of R’s insurance policy.  R agreed that incidentally the figure matched the premium amount that she had to pay under the policy she had purchased from her brother.  On the balance of probability, I find this payment was for R’s insurance policy.  

175.  If in the post-separation period, there were still these transactions between the parties indicating that they had been maintaining certain kind of relationship, it is hard to believe that there were no such transactions prior to the breakdown of the marriage.

176.  R emphasized that all the properties were purchased by her with her own monies.  She denied having discussed and resolved with P on the buying and selling of properties. 

177.  On the evidence before me, it is obvious that P was not clear about the details of the purchase of the Antung Property.  He was not aware of the sale price of the Nan Fung Sun Chuen Property.  He was not aware of R’s purchase of the Carson Mansion Property.  It was not until R requested him to chase the tenant for outstanding rentals that he knew of the purchase.  He was somewhat directed by R to make use of his name in the purchase of the Greenview Property.  He admitted that he did not participate in the purchase of Hatton Place (via LTS) in 1992 and he just vaguely knew that the price was about $5 million.  This is clear that the decision was rested with R.  Not only that P had no involvement, at that time he did not know the sale price and the amount of profits.  After the sale of the Hatton Place, 2 of the original shareholders, friends of R, dropped out of the picture and subsequently, CM and later KY were made shareholders but he did not know it and had no involvement in the exercise. 

178.  I accept that R made all the decisions regarding which properties to be invested.  She was the entrepreneur and the mastermind and P played a subordinate and supporting role.  As a matter of fact, Ms Yip also accepted that at times R enlisted the assistance of P in this regard but she stressed that it was never the intention of R that her investment was to be shared. 

179.  There can be little doubt that P also played a part in the building up of the investment portfolio and hence in the accumulation of wealth of the parties, though this role was denied or at least belittled by R.  Apart from the fact that the Greenview Property was purchased in his name at the direction of R, I accept that P made use of his tax returns as an insurance agent from March 1990 onwards in support of his application for mortgage finance.  It must be the case because if he was the registered owner, the bank would have the need to look into his financial ability.  R seemed to suggest when giving evidence that it was so arranged because he was negotiating for overdraft facilities with the bank and she also said it was probably because she had to work overseas.  What she said is inconsistent with her affirmation where she said it was for tax reason.  Be that as it may, I do not think the reason is important. What is important is P participated in the entrepreneur.  Further, I find that P had the following involvements:

1. P arranged for the renovation of the Wing Lee Property upon its purchase in 1993.  He also involved in the maintenance and upkeep of the properties.

2. P was guarantor for the BH House until November 2007. 

3. P also said in 1995 when R purchased Shop 97, since the parties were already paying monthly mortgage of $26,000 for Shop 73, the bank was hesitant in granting the loan.  R made the application on the strength of FPC; and for this purpose, he provided FPC’s business records in support of the application.  I accept that.

4. Though P was never a shareholder or director of LTS, since R was busy with her employment, starting from 1994 he was responsible for keeping the documents such as the demands for rates and management fees and was responsible for liaising with the accountants for preparing the audited statements.  He was also responsible for all WF’s documents filed to the Companies Registry up to the time of transfer of the shares.

180.  Ms Yip stressed that since FPC was using Shops 73 and 97, the payments were rentals paid by a tenant and could not be considered as contribution.  P gave evidence that it was upon the advice of the accountants that the incomes from FPC were treated as rentals for payment of mortgage instalments of the Shops.  He emphasized it was agreed that the monies were in name rentals only.  There was never any agreement in the strict commercial sense.  R also agreed that the rental sum of $14,000 for Shop 97 was suggested by the accountants.  That lends support to P’s version.  It would appear that only one tenancy agreement in respect of Shop 97, dated 8 February 2000, was ever signed.  It was rather informally prepared and was not stamped.  P said he signed the tenancy agreement at the request of R for the purpose of application for re-finance of the property.  I consider his version is closer to the truth.

181.  Further, it is telling that R admitted that some of the handwritten records on P’s own personal account passbook were made by her.  For instance, the words ‘Sold Greenview” (Sold 翠景) were under her hand.  One wonders why R’s own handwritings would have appeared on P’s own bank passbook if the parties were operating separate finance.  To this, R had no explanation.

182.  KY tried to paint a picture that whether financial or otherwise, R’s contribution was much more than that of P.  I have no doubt that, just as what KY said, R was far more capable in her work.  She performed well, worked hard and she got a lot of promotions. She was very career-minded and at the same time, money-minded.  She had a special lust for wealth.  In contrast, P seemed to be at the other end of the scale.  He was more laid-back, more submissive and far less career-minded. 

183.  As a couple, the weaker partner may require more assistance from the stronger party but on occasions the stronger may require assistance in times of need, both financially and emotionally.  This is mutual support and this is what husband and wife are for.  As I see it, this is what we have here, as is for most of the families.

184.  Under cross-examination, R agreed that as husband and wife, she was not calculating; whoever had the means would pay (誰有誰出).  But, said she, if P had an affair with Madam Lam she would be calculating in every aspect. 

185.  She admitted she authorized P to operate WF’s bank accounts and issued cheques. She also authorized P to use the rentals before the due date for mortgage payments.  She agreed that P could make use of the rentals received and she never asked P for the details. And it was P who was responsible for arranging the payments of the outgoings such as rates, insurance and management fees.  She had no explanation on why after separation there were still payments of water, electricity and utilities charges in respect of her properties.  Her evidence was evasive in this regard.

186.  She also admitted having quarrels with P over her landed investments.  She also admitted having participated in the operation of FPC, for instance she gave her ideas on the display of merchandizes.  She also gave evidence that she gave P the WF shares in order to facilitate FPC’s overdraft facilities and she allowed FPC’s overdraft facilities to be secured on the BH House.  She never chased P for outstanding “rentals”.  It seems clear to me that it was not strictly commercial as alleged because there can be little doubt that P was in arrears of “rentals” for a rather substantial period of time.  

187.  P gave evidence that the New Shop, which was at the basement of a shopping arcade in the Central, was located by R and she also oversaw the renovation work for him.  KY’s evidence is that it was not R who found the shop because she objected to operating the business from a basement.  To me, it is immaterial as to who found the shop. What is material is at that time the parties had already separated and if R had no further involvement with P, KY’s answer should have been that it was not possible because R had nothing to do with P anymore but surprisingly, her answer was that R still raised her objection.  On the part of R, she admitted having given her opinion on the renovation of the New Shop.  Her explanation that she also did this for her tenant is utterly unbelievable.  Whilst I can understand that she might have given her opinion to her tenants on the renovation of her shop, it is hard to believe that a landlord would have given her opinion to an outgoing tenant on the renovation of the new premises of which she was not the owner, especially when the outgoing tenant was substantially in arrears of rentals.  It is contrary to commonsense. 

188.  Putting all the jigsaw pieces together, the more sensible picture appeared to be that there was mixing or intermingling with matrimonial activities and assets and that the investments and FPC are inter-related; in particular, funds or financial resources available from one source would be utilized in the use of another in order to maximum the gain or to keep the investments.  

189.  Faced with P’s application, R jealously guards what she regards as solely belonged to her.  Ms Yip, in her closing submissions, stressed that the peculiar features to the present case being the agreement between the parties to operate separate investment portfolios.  But the crucial point is there was no agreement to keep the finances separated in the event the marriage should come to an end.  Ms Yip has not put her case as one that there was a nuptial agreement (express or implied) between the parties.  In any event, the evidence does not give rise to an inference that there was such an agreement.  Why would P have participated or assisted R in her investments if there was such an agreement?

190.  It is true that in 2009 P did borrow money from R and in the course of the event he wrote letters acknowledging that he was borrowing from her rather than withdrawing money from the family fund and he even offered R to have the rentals of the Dongguan Property.  Looking at the situation objectively, P was essentially ‘begging’ for money, it is of little wonder that he was writing in such a condescending manner.  I do not think very much can be made out of it. 

191.  For the reasons aforesaid, I have to reject R’s claim.  In all events, given that there was not any nuptial agreement that the parties’ respective assets should be ring-fenced in the event of a divorce, all the parties’ assets should be considered as matrimonial property.

Pre and Post-Separation Assets

192.  It is common ground that the parties separated in July 2000.  Given that the parties separated for a significantly long period of time before the matter has come to court, the court needs to consider whether this should justify a proper consideration of parties’ financial position as at the time of the separation, rather than at the time of trial, being over 10 years apart. 

193.  In Rossi v Rossi [2007] 1 FLR 790, there had been a very substantial passage of time between the separation of the parties and the hearing of the husband’s claim for ancillary relief. There was the critical question of whether money or property that had been acquired after separation formed part of the matrimonial property.  Mr N Mostyn QC, sitting as the Deputy Judge of the English High Court (now Mostyn J), summarized the principles in relation to post-separation assets as follows:

‘24.1 The statute requires all the assets to be valued at the date of trial.

24.2 For the purposes of establishing the matrimonial property in respect of which the yardstick of equality will ‘forcefully’ apply the value of assets brought into the marriage by gift and inheritance (other than the former matrimonial home), together with passive economic growth on those assets, should be excluded as non-matrimonial property.

24.3 Assets acquired or created by one party after (or during a period of) separation may qualify as non-matrimonial property if it can be said that the property in question was acquired or created by a party by virtue of his personal industry and not by use (other than incidental use) of an asset which has been created during the marriage and in respect of which the other party can validly assert an unascertained share. Obviously, passive economic growth on matrimonial property that arises after separation will not qualify as non-matrimonial property.

24.4 If the post-separation asset is a bonus or other earned income then it is obvious that if the payment relates to a period when the parties were cohabiting then the earner cannot claim it to be non-matrimonial.  Even if the payment relates to a period immediately following separation I would myself say that it is too close to the marriage to justify categorisation as non-matrimonial.  Moreover, I entirely agree with Coleridge J when he points out that during the period of separation the domestic party carries on making her non-financial contribution but cannot attribute a value thereto which justifies adjustment in her favour.  Although there is an element of arbitrariness here, I myself would not allow a post-separation bonus to be classed as non-matrimonial unless it related to a period which commenced at least 12 months after the separation.

24.5 By this process the court should, without great difficulty, be able to separate the matrimonial and non-matrimonial property. The matrimonial property will in all likelihood be divided equally although there may be deviation from equal division: (a) if the marriage is short; and (b) part of the matrimonial property is ‘non-business partnership, non-family assets’ (or if the matrimonial property is represented by autonomous funds accumulated by dual earners).

24.6 The non-matrimonial property is not quarantined and excluded from the court’s dispositive powers.  It represents an unmatched contribution by the party who brings it to the marriage.  The court will decide whether it should be shared and, if so, in what proportions.  In so deciding it will have regard to the reality that the longer the marriage the more likely non-matrimonial property will become merged or entangled with matrimonial property.  By contrast, in a short marriage case non-matrimonial assets are not likely to be shared unless needs require this.

24.7 In deciding whether a non-matrimonial post-separation accrual should be shared and, if so, in what proportions, the court will consider, among other things, whether the applicant has proceeded diligently with her claim; whether the party who has the benefit of the accrual has treated the other party fairly during the period of separation; and whether the money-making party has the prospect of making further gains or earnings after the division of the assets and, if so, whether the other party will be sharing in such future income or gains and if so in what proportions, for what period, and by what means.’ (emphasis added)

194.  It is true that there were landed properties acquired by R after separation but equally during the post-separation period some of the pre-separation landed properties were sold, probably making use of the proceeds for the acquisition of new investments.  Thus, it seems clear to me that since separation R has been making use of the assets acquired during the marriage in the continuation of her ‘business’ . Thus, I do not think that the new investments can be regarded as post-separation accruals.  

195.  Further, it cannot be said that P had nothing to do with R.  According to my finding, P assisted R in obtaining needy cash by using her credit cards at FPC and he also handled and paid the rates and utilities of the landed properties for least up to 1 ½ years or so after their separation.  P was the co-guarantor of the BH House up until November 2007.  As I have already dealt with P’s involvements in earlier part of this judgment, it is not necessary for me to repeat them here.

196.  Finally, I accept that not very long after separation R started to embark on her foreign exchange trading. Though I would not term it as ‘gambling’ as Mr Chu has put it in his closing submissions, given that KY, a fund manager, also recounted that she was ‘scared to death” upon knowing R’s high risk involvement in the foreign exchange trading, in a way, she has been putting the family assets at risk or even in jeopardy.  I will elaborate this in the later part of this judgment.

197.  For the above reasons, I come to the view that the assets are to be valued at the date of trial.

198.  Another important factor that Ms Yip relies upon is the long separation or its corollary, the delay of P in taking out of the present ancillary proceedings.  As for the effect of the delay, again in Rossi v Rossi, where there was undue delay on the part of the husband in pursuing his ancillary relief claim, Mr Mostyn QC, as the Deputy Judge of the English High Court, said:

25. In some cases delay will receive at least some reflection by the characterisation of assets acquired after separation as non-matrimonial. But as I have tried to explain above, this is by no means an invariable consequence. The question is whether delay per se should be reflected in the exercise of the discretion.

26. In Jackson's Matrimonial Finance and Taxation (7th Edition) at Paragraph 5.7 it is stated:

Whatever the length of the marriage, a claim may fail if it is left dormant for too long, in which case one factor may be that the husband's assets have been built up with another woman. It has been said that after a long lapse of time a party to a marriage should be entitled to take the view that there would be no revival or initiation of financial claims against him; the longer the lapse of time the more secure he should feel in the rearrangement of his financial affairs and the less should any claim be encouraged or entertained.

27. The authorities for these propositions are all very old: Foster v Foster (1977) 7 Fam Law 112, Chambers v Chambers (1979) 1 FLR 10 and Fraser v Fraser (1981) 3 FLR 98. I consider them to have equal validity in the post-White era.

28. These propositions were foreshadowed in the even earlier case of Chaterjee v Chaterjee [1976] Fam 199 where Ormrod LJ stated:

Delay, if it really is delay in the sense of prejudicing the other party, may have an important influence on the justice of the case. So may conduct which can be described as "lulling" the other party into the belief that all claims have already been dealt with. Similarly it may be unjust to interfere with property rights after a lapse of a reasonable and proper manner in the belief that the financial consequences of the divorce have been settled.

29. A vivid example of the vice of delay is the decision of Booth J in D v W (Application for Financial Provision: Effect of Delay) [1984] 14 Fam Law 152. There the delay was 6 years and the parties were found equally responsible for it. That aside the applicant wife had a meritful claim. She was seeking to recover the value of her half share of the former matrimonial home. That half share was worth £14,000. On that basis she would waive the £2,000 unpaid periodical payments that H owed her. Booth J stated:

There are certain detrimental consequences of delay. The first is that delay engenders bitterness and hostility between the parties which is detrimental to the whole fairly and, in particular, to any children of the family. The husband in this case is aggrieved at the attack that is now made upon the home in which he has been living for the past 10 years. The wife, on the other hand, feels deprived of her money and the right to live there. The delay inevitably increases costs. It leads to a multiplicity of affidavits which are filed in order to deal with the ever-changing position of each of the parties. Inevitably, it lead (sic) to an exchange of correspondence over a protracted period between solicitors and, no doubt, also leads to attendance of the parties upon the solicitors. And all those matters adds (sic) up in costs.

Further, with the change in property values and with inflation as it is in our present economic situation, as well as with the changes in the parties' own situation and the commitments they take upon themselves, the whole case can be materially altered, and the ability of the parties to cope with any orders that the court might otherwise properly have made upon the merits of a case may be put in jeopardy. Indeed, delay can put the court in the simple position of not being able to do justice between the parties according to the merits of each case. Unless it can be clearly shown that one party bears the greater responsibility for the delay that does the other, the court may be left with no alternative but to make an order which does not reflect the merits of the case.

In the result Booth J felt that all she could do was to award the wife a mere £2,500 (inclusive of the arrears of maintenance). I would emphasise the risk of injustice that is caused by delay. The longer the time that passes the more likely it is that documents will disappear and memories cloud with the result that there is a greatly enhanced risk of the court rendering imperfect justice.

Long Separation

199.  R referred to the crash of Nasdaq in 2000, the 911 terrorists’ attack in 2001 and the SARS in 2003 that plunged the economy of Hong Kong into depression. Consequently, there was a drastic drop in the market value of properties triggering demands for early partial repayment from banks.  At the same time, the worsening of the rental market resulted in early termination of tenancies, reduction in rent, request for long rent free period by tenants and vacancies from time to time and had in turn created the problem of her inability to pay mortgage instalment to banks.  She described that after separation she had to borrow extensively from credit cards, banks, financial institutions, friends and relatives in order to keep her properties and avoid bank foreclosure.  It is noteworthy that this is consistent with P’s evidence that R obtained some needy cash by using her credit cards at FPC. 

200.  At about the same time, after her retirement in 2001, R made use of her pension money in the trading of “foreign currency linked structured products”.  This is a trading in high yielding foreign currency such as Australian and New Zealand dollars with a leverage of up to 9 times.  She placed deposits in foreign currencies and those deposits, acting as securities, allowed her to have access to further overdraft facilities.  As a result, it allowed her to earn a fixed deposit interest above that of normal time deposits and take advantage of exchange rate movements to make potential currency appreciation gains.  She repetitively used the overdraft facilities, which were automatically granted and collateralized against the fixed deposits placed at the bank, to withdraw money in placing further deposits.  Therefore, she was able to achieve as much as 9 times’ leverage on her deposits.  According to the illustration given by her, a $100,000 deposit can be leveraged to $900,000 for investment.

201.  She said that given the track record of both her foreign currency trading performance and her credit-worthiness proven to the banks, together with the bank earning respectable fee income from her frequent trading of the foreign currency linked structured products, the bank granted her further credit facility which helped her to service the mortgages during property market slumps and in between rental contracts when she received no rental income for a particular property.

202.  She specifically mentioned that from 2001 to 2007, high yielding currencies like Australian Dollar and New Zealand Dollar appreciated more than a double.  And she made substantial gains out of the leveraged foreign currency linked structured product.  That said, she admitted that it also exposed her to great potential liabilities.  During the 2008 Lehman crisis, these currencies swiftly halved within one year, leaving her with numerous margin trading calls to fill in, and she had to borrow $3,000,000 from a relative.  She admitted it was a highly risky venture.  

203.  It would appear that she referred her involvement in the high risk leverages investment in currency linked notes as one of the ‘unprecedented extraordinary measures” for the purpose of preserving her assets.  To me, there is no concrete evidence in support.  Quite to the contrary, there can be little doubt that this has significantly increased her exposure to liabilities.  She admitted it was fortunate that the Australian and the New Zealand dollars had been on uptrend from 2000 to 2007.  Had it been otherwise, especially in the first few years of her investment, she might have lost everything.  She admitted more than once in her affirmations that her investments or trading in foreign exchange was a high risk one and all along she used the policy of “9 lids for 10 pots” (十個樽九個蓋). She confessed that if she is lucky, there would be substantial profits but if the currency goes the other way down, she would have loss as much as 9 times of her principal.  Ms Li (RW1) also gave evidence that R once told her that she could earn a lot of money in a single day but can also lose a lot of money in another.  She had reminded R that this was a high risk exercise but R’s reply was that she had no choice because she needed money. 

204.  However, in cross-examination, R claimed that the risk of her foreign exchange investment is even smaller than her investment in landed properties.  It is utterly unbelievable and is contrary to her affirmation evidence.

205.  Strikingly, KY mentioned that at the time of Lehman financial crisis in 2007, when she learned of R’s high risk exposure she was “scared to death”.  She testified that as a fund manager, she had advised R not to involve in this kind of high risk investment with substantial money involved but her mother continued to have her own way. That said, I believe out of protection of her mother, KY described R’s foreign exchange trading as a kind of asset allocation.  KY frankly admitted that if both the property market and R’s foreign exchanges go down, R would not be able to survive unless she manages to find a new source of income or a new form of investment.  She agreed that in light of the depreciation of the Australian and the New Zealand dollars, R might have to re-mortgage some of the properties.  

206.  It should be borne in mind that R started involving in this risky investment just about one year after the parties had separated. It is inconceivable that she has not utilized funds from the property investments into foreign exchange trading and vice versa. 

207.  There is some inconsistency in her evidence regarding her use of the pension fund upon retirement.  At one stage, in her affirmation dated 30 August 2011, she said she used her provident fund to repay some of her debts but then in her affirmation dated 1 November 2012 and also in court, she said she converted her pension into the foreign exchange transaction.

208.  R was also evasive when she was asked whether there are any connections between investments and trading.  Despite her insistence that her property investment and foreign exchange trading are two separate investments, at the end she agreed that she maintains one bank account from which she makes use of for both activities.  Clearly, it is more likely than not that fund from one activity would be used for the other.

209.  For these reasons, I would not rate the foreign exchange trading as such a positive factor as Ms Yip would like to put it.

R’s Illiquidity

210.  Ms Yip submitted that R’s properties are tied up with mortgages and re-financing crediting that the true net value of her assets is in the negative.  She urged the court to take into R’s illiquidity and her copper-bottomed and risk-laden assets into consideration.

211.  I need only to be brief on this.  First, it is clear that her assets are not in the negative.  Secondly, the assets in question are not in the form of say, certain shareholdings in a private company or a minority interest in a business. They are in the form of landed properties and they are clearly marketable especially in the context of Hong Kong.  They are also capable of being liquidated, as can be seen from the re-finance exercise done by R back in 2013.

Whether there was a clean break arrangement between the parties following their separation in 2000 and on the transfer of WF Shares in 2003 or 2004?

212.  In her affirmation dated 22 July 2012, R described what happened upon the separation in 2000, in particular she mentioned that she was heart-breaking and emotionally collapsed but she decided to terminate her relationship with P.  In order to do so as soon as possible, she decided not to claim for the repayment of the monies owe to her and to allow P to keep the WF shares and FPC.  In my view, the totality of her evidence does not support any clean break arrangement or agreement between the parties.  The interactions between the parties during the first 2 years of the separation have betrayed her.  If she did consider this was the case, it was her own subjective wishful thinking.  Further, it is also not Ms Yip’s case that there was a nuptial agreement between the parties upon separation.

213.  With the conclusion that I have come to regarding the transfer of WF shares in 2003 or 2004, there was certainly not any clean break arrangement or agreement.  Again, Ms Yip has not put her case as one of nuptial agreement.

214.  There was also no conduct on the part of P that can be described as “lulling” R into the belief that all claims have already been dealt with.

Deciding the Outcome

215.  R described in her affirmations how she up-kept and maintained the properties, looked for and negotiated with potential tenants on better terms and made some renovations before handing over the properties to tenants.  I accept that it is not entirely a case of passive growth in value.  She had to attend to the “business” such as showing the properties to tenants and after that, managing the tenants.  I have not lost sight that she must have put in some extra efforts in the management of her property investments in times of recession or the diving of the property market.  Of course, another reason why she has to put in extra effort must in part be due to her stretching the resources to their limits. The term of “9 lids for 10 pots” (十個樽九個蓋) was recurring during the trial to describe how R juggled.

216.  I have found that R had the Seed Money.  It was an external source of finance and was not the fruit of marriage.  However, given the long marriage of the parties, its significance has diminished over time.  Further, a substantial part of the Seed Money was deployed in the acquisition of the parties’ very first matrimonial home (ie the Antung Property), which was intended for and devoted to family use and which had a central place in any marriage: per Mr Justice Ribeiro PJ in LKW v DD (2010) 13 HKCFAR 537, at para 98. 

217.  R also emphasized that she supported the son JB’s education in the United States in about the same time, ie 2000.  She seemed to have complained that P did not make any contribution but the objective fact is R was in control of the majority if not all of the family assets.

218.  It may be that R’s contribution to the family was larger than that of P as KY has described, but clearly it has not been put forward as a special or stellar contribution. 

219.  Each family is unique.  There are families in which both parties are more or less equal in terms of their roles in the family, whether emotional, domestic or financial.  There are families where there is a clear ‘bread-winner’ and ‘homemaker’ division of labour and in the past very often the bread-winner role vested with the husband and the homemaker role fell on the wife but nowadays it may not often be the case. There are families where one party may be more dominant and the other more submissive and confirmative.  There may also be a combination where one party is more career-minded, a rain-maker or a wealth creator but the other partner may be more laid-back and less career-minded.  One can always have an incessant list of combinations.  I think this is for this reason that the law treats marriage as a matrimonial partnership and each partner is equal.  After having lived with this case for quite some time, I do not find any feature strikingly unusual in this family that warrants a radical departure as contended for by R when it comes to the division of assets.  R was clearly more domineering and far more career and money minded.  As for P, he was clearly less capable in terms of making and savings of money and more submissive.  Despite the fact that he might have openly opposed R’s somewhat risky investments, nevertheless he supported his wife by playing a role in it as can be seen from what he did. I am not saying that they complemented each other or that P’s role is indispensable.  It is not necessary for me to come to a view in this regard.  I only wish to point out that this was the way they were for the last 28 years which was put to an end probably because of P’s affairs with Madam Lam, causing R much anguish and seemingly deep-seated hatred towards P.

220.  During Ms Yip’s closing submissions, I raised the point that even if separate finance is applicable here to the fullest extent as contended for by her, the Parkvale Property, being the matrimonial home immediately before the separation, should be treated as matrimonial property for the purpose.  This is also exactly the observation made by Hon Tang JA (as he then was) in ARAV v VP, LJ also known as PJ, at para 10.

221.  I have rejected R’s claim on separate finance and illiquidity.  I have also found there was no clean break in 2000.  As regards the long separation, I accept that there was delay on the part of P in pursuing the ancillary relief claim but I consider that the delay per se should not deprive him of his claim.  I do give some consideration to the fact that there were still activities, at least on the money side, between the parties in the first one or two years after the separation and P remained as the guarantor of the BH House until November 2007.  Whilst I do not rate the foreign exchange trading as such a positive factor, I do give weight to the efforts that R has been putting in attending to and managing the properties investments.  Finally, it would be wrong for me not to give weight to the fact that this is a very long marriage.

Conclusion

222.  Having considered all the above factors and taking the situation in a round, doing the best I can, I reckon that the family assets should be divided in the proportion that P is to have 45% and R is to have 55% of the assets.  Translate them into monetary term would mean P would have $22,218,660 ($49,374,800 X 45%) and R would have $27,156,140 ($49,374,800 X 55%).  As P is already in possession of $672,832, it means that R has to pay him $21,545,828.  From this, $550,000 has to be deducted for the loan that P owes R.  It means a final figure of $20,995,828 ($21,545,828 - $550,000).  I round it up to $20,996,000.  In my view, R would still have sufficient means to continue her ‘business’. This is a clean break arrangement.

223.  R may need time to liquidate or re-finance some of her landed properties in order to make the lump sum payment.  I would allow R to make payments within 6 months by two equal instalments. 

Orders

224.  For the above reasons, I order that the respondent do pay the petitioner a lump sum of $20,996,000 within 6 months’ from the date hereof by 2 equal instalments. The first half of $20,996,000 is to be paid on or before 23 September 2015 and the balance is to be paid on or before 23 December 2015.

Costs

225.  I reserve the issue of costs for argument.