M-D, MP v. M, MGA

CACV 881 /2025, [2026] HKCA 1474

On appeal from [2024] HKFC 163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 881 OF 2025

(ON APPEAL FROM FCMC NO 751 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Introduction and background

1.  This is an application by summons dated 4 February 2026 (“Summons”) issued by the petitioner/wife (“W”) for leave to adduce further evidence in her appeal against the judgment of His Honour Judge George Own dated 23 August 2024 (“Judgment”)[1] and his subsequent decision on 9 September 2024 refusing W’s application to re-open the ancillary relief trial to adduce updated valuation information of the matrimonial assets (“Re-opening Summons” and “Refusal Decision”). The Court of Appeal (Chu VP and Cheung JA) granted leave on 26 September 2025 to appeal against the Judgment and the Refusal Decision. 

2.  The Summons is opposed by the respondent/husband (“H”).  Having considered the papers and the submissions lodged, we think it is appropriate to determine the application on paper without a hearing. 

3.  The ancillary relief trial took place before the judge in July 2022.  Evidence was heard over ten days and judgment was reserved.  The parties made submissions on the appropriate treatment of the marital assets, including two key assets – a property in Stanley purchased by them (“Stanley Home”); and H’s “Stocks, bonds and securities” as identified in the Agreed Scott Schedule of Assets and Liabilities (“GS Portfolios”).

4.  At the time when judgment was pending, the parties wrote to the court jointly on 29 November 2023 and 8 April 2024 (“Joint Letters”), inviting the judge to indicate when judgment might be handed down.  No response was received from the court at the time.

5.  On 15 August 2024, W issued the Re-opening Summons to re-open the ancillary relief trial, supported by her 13^th affidavit, which exhibited updated materials concerning the value of the Stanley Home and the GS Portfolios.

6.  W’s primary submission on the Re-opening Summons was that a substantial period of over two years had elapsed between the July 2022 hearing and the anticipated judgment.  She contended that during that period,

(1)  the Stanley Home had declined in value by approximately HK$100 million; and

(2)  the GS Portfolios had increased materially in value by approximately HK$155.7 million.

7.  On 23 August 2024, the Judgment was handed down. The judge’s approach was to value the matrimonial assets by reference to assessed values current around the evidential hearing in July 2022 (“2022 values”), based on the single joint expert valuation report prepared for the ancillary relief trial a few months before it.  The judge made these key determinations in calculating the total value of the matrimonial pot:

(1)  the Stanley Home, transferred to W, was valued at approximately HK$347 million; and

(2)  the GS Portfolios, retained by H, were valued at approximately HK$341 million.

8.  The judge declined to adopt a later valuation date.  He also ruled that the GS Portfolios shall not be shared in specie according to the Wells principle[2] and their value shall form part of the calculations of the value of the assets to be shared by way of an equalising lump sum payment.

9.  On 9 September 2024, the judge dismissed the Re-opening Summons in the Refusal Decision.

10.  On 14 October 2025, W filed a notice of appeal with leave granted by the Court of Appeal against the Judgment and the Refusal Decision.  The notice of appeal seeks the following orders:

(1) the Refusal Decision be set aside;

(2) an order in terms of §1 (the ancillary relief trial be re-opened for the parties to adduce fresh evidence as specified in (a) to (d) therein) and §2 (the ancillary relief trial be re-listed for hearing with one day reserved and/or directions be given for the filing of written submissions regarding the fresh evidence) of the Re-opening Summons; and

(3) the GS Portfolios be shared in accordance with the Wells principle upon the re-opening of the ancillary relief trial. 

11.  The following grounds of appeal are raised in the notice of appeal:

Ground 1 on error in valuation date

The judge erred in law by refusing to adopt or consider the adoption of a valuation date later than that of the date of the evidential hearing in July 2022 for, inter alia, the Stanley Home and the GS Portfolios, when (1) the Judgment was outstanding for a substantial period of time (it was handed down two years after the ancillary relief trial); and (2) there was a significant, exceptional and/or unexpected change in value in the matrimonial assets, including the Stanley Home and GS Portfolios, which disproportionately affects the value of the assets allocated to W and H to the material detriment of W, thereby contradicting fairness and the Judgment’s aim of broad financial equality between the parties.  Further and/or consequently, the judge failed to correctly apply the guidelines in Ladd v Marshall [1954] 1 WLR 1489 and to admit the fresh evidence referred to in §1 of the Re-opening Summons.

Ground 2 on error in declining to share the GS Portfolios on the Wells principle

The judge was plainly wrong and/or erred in principle not to order the GS Portfolios to be shared based on the Wells principle, when this was the common position of W and H that they should have been, and no reason had been identified by the judge (and no reason exists) for the departure from such common ground.  Further or alternatively, the judge’s exercise of discretion in this regard ought to be set aside by reason of his failure to take account of a relevant consideration, ie, the parties’ aforesaid common ground.

12.  Ground 1 relates to §§(1) and (2) of the orders sought in the notice of appeal.  Ground 2 relates to §(3) of the orders sought.

13.  On 4 February 2026, W issued the Summons presently before this court for leave to adduce further evidence in the appeal. The Summons seeks leave to adduce four categories of documents:

(1)  the Joint Letters of 29 November 2023 and 8 April 2024 concerning the outstanding judgment;

(2)  §§1 to 9, 16 to 18, and 34 to 40 of W’s 13^th affidavit and exhibits 13-1, 13-5 and 13-6;

(3)  a preliminary valuation report from RHL Valuation dated 4 September 2024 for the Stanley Home; and

(4)  the note of W’s counsel dated 6 September 2024 prepared for the application to re-open the trial.

14.  The new evidence sought to be adduced in the Summons relates only to Ground 1.  W’s position is that if the judge had given effect to the common position that the GS Portfolios be shared based on the Wells principle, she could have shared in the increased value of these assets.  That is the second error she identified and it gives rise to Ground 2.

The present application to adduce further evidence on appeal

15.  W’s primary position is that:

(1)  the updated valuation evidence is central to Ground 1 and directly undermines the Judgment’s essential premise that the use of 2022 values would achieve broad financial equality;

(2)  the movements in the Stanley Home and GS Portfolios are substantial and material, together representing approximately 62% of the matrimonial pot;

(3)  her focus on these two assets is justified because they are the dominant assets and H refused updated disclosure of assets under his control;

(4)  the evidence concerns the state of affairs at or shortly before the date of judgment, not a supervening post‑judgment event; and

(5)  the RHL valuation, dated only 12 days after the Judgment, is sufficiently proximate to be materially probative.

16.  H opposes the application and his primary position is that:

(1)  most of the proposed material is irrelevant narrative or commentary where W puts a gloss or spin in describing documents;

(2)  at most, only neutral valuation material should be received;

(3)  any later-date exercise must encompass all significant assets, on consistent dates, and usually with agreed or single joint expert values; and

(4)  W cannot selectively update only assets that have moved unfavourably to her while disregarding the rest of the matrimonial balance sheet.

Legal principles

17.  The application is made under Order 59, rule 10(2) of the Rules of the High Court, Cap. 4A which provides:

“The Court of Appeal shall have power to receive further evidence on questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner, but no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.”

18.  Applying Order 59, rule 10(2), for evidence of matters occurring after the hearing (and all four categories of documents sought to be adduced in the Summons occurred after the ancillary relief trial in 2022), the Ladd v Marshall conditions do not apply, but the court exercises a wide discretion sparingly, having regard to the need for finality, the extent to which the evidence may affect the outcome, the time element, the parties’ conduct, and whether the evidence substantially affects a basic assumption made at the trial: Re China Fishery Group Ltd and Another [2020] HKCA 169 at §26; Cheung Wing Kuen, Samuel v Ip Chui Sum [2022] 3 HKLRD 709 at §§42 to 43; EBS v NTCD [2023] HKCA 425 at §23.

19.  The applicable principles governing “evidence as to matters which have occurred after the date of the trial or hearing” were summarised in Cheung Wing Kuen, Samuel at §43 as follows:

“(1) The Court of Appeal has a wide discretion in relation to admitting such fresh evidence but it should always be exercised sparingly with due regard to the need for finality in litigation: Hughes v Singh (The Times, 21 April 1989).

(2) It is impossible to produce an exhaustive list of considerations relevant to the exercise of that discretion, but the following factors will always be material:

(a) the extent to which the fresh evidence may affect the award of damages: the greater the extent, the more likely and ready the Court of Appeal should be to admit the evidence;

(b) the time element: it is not necessary that the fresh evidence should emerge before the case would ordinarily reach the Court of Appeal, but the closer to the date of trial the more likely it is that the evidence will be admitted; and

(c) the conduct of the parties: any inequitable conduct on the part of a litigant will plainly be relevant, and other conduct may also be relevant.

(3) The evidence should be admitted in all cases where it would be an affront to one’s sense of fairness not to admit it. In applying that test the court takes into account all the circumstances, before, during and after trial: Hughes v Singh.

(4)  The new evidence must substantially affect a basic assumption made at the trial: the matter is one of degree.”

20.  We turn to consider the four categories of documents in the Summons.

Category 1: the Joint Letters

21.  The Joint Letters of 29 November 2023 and 8 April 2024 from the parties’ solicitors to the court are in the files of the Family Court and form part of the lower court’s record.  It is permissible to refer to the lower court’s record to show the fact and content of the parties’ communication to the court.  It is not necessary to obtain leave to adduce on appeal a part of the lower court’s record.  We decline to make an order in respect of category 1.  

Category 4: counsel’s note

22.  The note of W’s counsel dated 6 September 2024 was prepared for the Re-opening Summons.  It set out W’s arguments and calculations in support of her application to re-open the trial, including the proposition that only 37% of the matrimonial pot would be awarded to her, thus failing to achieve the objective of “broad financial equality” intended in the Judgment.

23.  The note is not “further evidence on questions of fact” within Order 59, rule 10(2).  It is not proof of the updated values or the asserted 37% division.  Any factual material referred to in the note derives its evidential status from its underlying source, not from counsel’s recital or calculation.  It is a document of legal submissions and forms part of the procedural record of the lower court.  It is permissible to refer to the submissions made in the lower court on appeal.

24.  It is neither appropriate nor necessary to seek leave to adduce this document on appeal.  We decline to grant leave for category 4.

Category 2: selected parts of W’s 13^th affidavit and exhibits

Category 3: the RHL valuation report

25.  These two categories of documents may be conveniently dealt with together.

26.  In the Summons, W does not seek leave to adduce her entire 13^th affidavit but only selected parts and some of the exhibits.  It is only when the Refusal Decision is successfully set aside on appeal that she seeks an order to adduce her entire 13^th affidavit and other documents for the re-opening of the ancillary relief trial to be heard by the judge.

27.  §§1 to 9 of the 13^th affidavit relate to matters that are either background or immaterial for the further evidence application.  Insofar as §8 mentioned the Joint Letters, we have ruled that it is unnecessary to seek leave to adduce the Joint Letters on appeal.  We decline to grant leave to adduce §§1 to 9 of W’s 13^th affidavit.

28.  §§16 to 18 of the 13^th affidavit relate to what was described as the “Disclosure Request Letters” exchanged between the parties’ solicitors between May and July 2024, being exhibit 13-1.  By these letters, W requested H to disclose updated values of the marital assets before judgment was to be handed down but H declined claiming lack of legal basis for the request.  These parts of the affidavit and exhibit 13-1 laid the groundwork for W’s subsequent Re-opening Summons and are relevant to W’s contention on appeal.  We give leave to adduce on appeal §§16 to 18 of W’s 13^th affidavit and exhibit 13-1.

29.  §§38 to 40 of the 13^th affidavit relate to the fall in luxury real estate prices in Hong Kong which is relevant to the Stanley Home, with reference to articles dated 24 October 2023, 8 May 2024 and 29 July 2024 from South China Morning Post, Financial Times and Bloomberg in exhibit 13-6.  The RHL valuation dated 4 September 2024, which was obtained 12 days after the Judgment, gave a preliminary opinion that the market value of the Stanley Home was HK$247 million as at the date of the report.

30.  §§34 to 37 of the 13^th affidavit relate to the increase in value of the GS Portfolios, with screenshots of Google Finance and Yahoo Finance on various dates between 26 July 2024 and 1 August 2024, being exhibit 13-5.  This translates into an increase in value of around HK$155.7 million.

31.  These extracts of the 13^th affidavit and the exhibits mentioned above lie at the crux of W’s appeal, without which it is impossible to make out her contentions on the error in valuation date in Ground 1 of the notice of appeal.  We are satisfied that such new evidence is factual and relevant to a question of fact in the appeal; it has the potential to substantially affect a basic assumption made by the judge in achieving “broad financial equality” and affect the outcome of Ground 1; the timing of the RHL valuation makes it closely proximate to the issue under appeal, that the judge should have chosen a valuation date as close to the date of Judgment as was practically possible; and there is no inequitable conduct by W in seeking to adduce such new evidence.  It would be fair to admit such new evidence.

32.  We are not at this stage concerned with the merits of W’s arguments on appeal.  The Court of Appeal has granted leave to W to argue Ground 1.  She can proceed on the assumption that the court has found Ground 1 reasonably arguable.  For the purpose of this application, it is not necessary for her to explain how the new evidence meets the principles in Barder v Caluori [1988] AC 20.

33.  As for H’s contention that admission of new evidence on the values of the Stanley Home and the GS Portfolios necessarily requires the revaluation of all or all significant assets, that this offends the principle of finality and would open the door to a wide-ranging and disproportionate exercise, that is something to be considered if W’s appeal is allowed and the Refusal Decision set aside, but is not a reason for refusing leave to adduce the new evidence in support of a ground for which leave to appeal has been granted.

34.  We do not agree with H’s submission the new evidence in relation to the Stanley Home should not be admitted because W had stated her intention to remain in the Stanley Home until around 2028 (this is disputed by W).  We are inclined to think that the valuation of the Stanley Home remains relevant to the size of the matrimonial pot and the notional division of assets, even if the property was not intended for immediate sale.  This again is a matter for the appeal.

35.  As for H’s submission that new evidence in relation to the GS Portfolios should not be admitted because he testified on Day 9 of the trial that the shares had been sold, we are not persuaded on the available materials that any rise in their value must have become moot.  H has not provided any information or supporting documents regarding the alleged sale. This assertion was not raised in his closing and reply submissions for the trial, or in his submissions resisting W’s application for leave to appeal.  The alleged sale is inconsistent with H’s summons issued three days before Day 9 in which H sought leave to adduce his 9^th affirmation at the trial inviting the judge to consider the substantial drop in value of the GS Portfolios and showing that he continued to hold the shares.  There was no change in the cash position in the marital bank accounts evidencing such a sale.

Disposition

36.  For the reasons given above, we make the following orders on the Summons:

(1)  leave is granted to W to adduce these documents on appeal: W’s 13^th affidavit, §§16 to 18 and §§34 to 40, exhibits 13-1, 13-5 and 13-6; and a preliminary valuation report from RHL Valuation of the Stanley Home dated 4 September 2024;

(2)  leave to H to file evidence in response (if any) to the evidence in (1) within 28 days thereafter; and

(3)  leave to W to file evidence in reply (if any) to H’s evidence in (2) within 28 days thereafter.

37.  We make a costs order nisi that H should pay W’s costs of the Summons and decline to award indemnity costs as sought by W.  We have considered W’s statement of costs for summary assessment.  The engagement of three counsel for the Summons is not justified.  We assess W’s costs at $562,670.  If no application to vary is made within 14 days of this judgment, the costs order and gross sum assessment will be made absolute.

[1]  [2024] HKFC 163

[2]  Wells v Wells [2002] 2 FLR 97