柯 v. 龔

FCMC 12807 / 2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 12807 OF 2013

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D E C I S I O N

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Introduction

1. This is the application by the Petitioner Wife (“Wife”) against the Respondent Husband (“Husband”) by way of Summons dated 8 August 2014 (“the Summons”).  There is also a supporting Affirmation (together with exhibits) of the handling solicitor Miss Fiona Yem (“Miss Yem”) for the Petitioner on the instructions of legal aid.  The terms of the Summons are as follows :-

“1. The Respondent is to disclose with all relevant documents of the whereabouts of the sale proceeds of HK$515,835.41 of Flat X on XX floor, Block X, Amoy Gardens, 77 Ngau Tau Kok Road, Kowloon (淘大花園).

 2.Costs to be provided.”

2.  Surprisingly, one day before the said Summons was filed, there was another Summons and supporting Affirmation of Miss Fiona Yem (together with exhibits) of exactly identical contents filed with the Court.  Upon clarification with Miss Yem at the outset of this hearing, this was a mistake of them and leave was granted there and then for withdrawal of the earlier Summons and the supporting Affirmation with no order as to costs.  This Court also refused to grant the Petitioner’s solicitors own costs against the Director of Legal Aid, which apparently was wasted through no fault of the Legal Aid Department or the aided person.

3. Still further, it transpired that the present Summons and the supporting Affirmation, although filed on 8 August 2014, was only served on the Respondent’s solicitors on 21 October 2014 (that is, some 73 days after the issuance) leaving with 28 days in advance of this hearing.  The reason provided by Miss Yem was that the rules provide for the time for service of summons is 2 clear days only.

4. In any event, the Respondent through his lawyers, also acting on the instructions from Legal Aid Department, filed his Affirmation in Opposition on 7 November 2014 together with exhibits.

Three (3) sets of proceedings?

5. It is worth to mention that there are 2 previous actions under FCMC No.4042 of 2011 and FCMC No.1136 of 2012 between the same parties.  For the sake of convenience, I will refer to those previous actions as “2011 case” and “2012 case” respectively.  Suffice also to say the Petitioner was represented by Miss Yem throughout in the 2011 case, 2012 case and in the present proceedings.

6. For the purpose of determining the present Summons, I am not prepared to venture into the history and background as to how and why, by referring to the year of the cases, there happened to be 3 consecutive cases between 2011 and 2013.  This is exceptionally unusual.  I am also sceptical about the handling and progress of this case since both parties are legally aided, not a so-called ‘big money case’ or involve any difficult questions of law or complicated sets of facts.  The situation is even worse when I noted that the Respondent was adjudged bankrupt on 30 December 2008 of which bankruptcy was discharged in 2012.  The Respondent was and is still a recipient of Comprehensive Social Security Assistance under the account of his mother Madam Chan since March 2012.  It is the Petitioner who has been pursuing ancillary reliefs.  Taking into account of the present situation, as rightly submitted by Mr. Yeung for the Respondent, it is highly doubtful as to how would all these perplex proceedings be bringing any practical financial reliefs to the Petitioner herself (leaving aside the fact that whatever financial reliefs she might obtain at the end of the day would also have to be subject to Legal Aid First Charge) save and except to the financial benefits of lawyers at the expense of public funds?  We are now at the post CJR era and the underlying aims and objectives in terms of costs effectiveness, case management and expediency must be strictly observed and adhered to.

The Petitioner’s Application

7. Miss Yem filed her Affidavit in support of the present Summons on behalf of the Petitioner.  This Affidavit consists of 16 paragraphs which I need to summarise and set out below.

8. At paragraph 1 of the Affidavit, reference was made to an Order dated 23 February 2012 granted by Deputy Judge Yim in the 2012 case where it provides, inter alia :-

“答辯人要存檔由二零零四年一月至二零零八年十二月之間之全部銀行戶口月結單, 證券及股票, 牛頭角物業資料, 破產令 HCB   9751/2008之一切有關文件, 及找不到工作之書面證明。”

9. At paragraph 2 of the Affidavit, it was conceded that the Respondent had filed a bundle of documents including牛頭角物業資料. 

10. Paragraphs 3 and 4 simply referred to the land search of the said 牛頭角物業. 

11. At paragraph 5 of the Affidavit, reference was made to a Statement of Account (which was produced and marked as exhibit “FY-B”) in respect of the sale of the 牛頭角物業showing a net balance due to the Respondent in the sum of $515,835.41.

12. Paragraph 6 of the Affidavit simply referred to the undisputed fact of the Respondent’s bankruptcy.

13. At paragraphs 7 to 10 of the same Affirmation, Miss Yem sets out her enquiries with Messrs. Neil Collins Corporation Advising Ltd, the Joint and Several Trustee for the Respondent’s estate after bankruptcy and the responses received.

14. Paragraph 11 of Miss Yem’s Affidavit referred to Messrs. Neil Collins Corporation Advising Ltd’s response being unclear.

15. Paragraphs 12 to 13 referred to the Respondent having made a “without prejudice” offer of settlement which had been responded to by the Petitioner.

16. Paragraphs 14 to 15 referred to the Petitioner having made a “Open Offer” but with no response received from the Respondent.

17. Paragraph 16 is the concluding paragraph seeking disclosure order.

The Respondent’s Affirmation

18. The Respondent in his Affirmation started by setting out the historical background starting from the 2011 case and the ancillary reliefs all along sought by the Petitioner in the 2011, 2012 and in the present case.  In addition, reference was made to events happened in the previous 4 hearings in the present case on 18/11/2013 (1^st hearing), 16/1/2014 (2^nd hearing), 16/5/2014 (3^rd hearing) and 25/7/2014 (4^th hearing) leading to the present Summons.

19. In gist, the Respondent objects on the ground that those information presently sought under the terms of the Summons were made 6 years after the Respondent’s bankruptcy or 2 years after the discharge of bankruptcy.  There is also the contention of relevance since the Petitioner all along in the 3 sets of divorce suits was seeking ancillary reliefs in specific terms of two catties of gold as opposed to a share in the net proceeds of sale of the said淘大花園.  In the Respondent’s Form Es filed in all 3 cases, he had accounted for the relevant amount of gold (which is about 10 tael in quantity) which had either been utilized or returned to the Petitioner.  The net proceeds of sale of 淘大花園 had been utilized for repayment of debts prior to his bankruptcy.

The applicable principles

20. There is no issue as to the provisions under which the Wife is seeking discovery or specific discovery. Rule 77(4) of the Matrimonial Causes Rules Cap.179A (“MCR”) provide :-

“(4) Any party to an application for ancillary relief may by letter require any other party to give further information concerning any matter contained in any affidavit filed by or on behalf of that other party or any other relevant matter, or to furnish a list of relevant documents or to allow inspection of any such document, and may, in default of compliance by such other party, apply to the court for directions.”

21. Besides, Order 24 Rule 7 of the Rules of the High Court (“RHC”) which is applicable to matrimonial proceedings by virtue of Rule 3 of the MCR is also relevant. 

22. It is trite law that to invoke Order 24 Rule 7 of the RHC, there are 3 prerequisites, namely, relevance, existence and possession of the documents sought for discovery.  Once a prima facie case has been made out by the party seeking such order, the court has a discretion whether or not to order disclosure (see Paul’s Model Art GMBH & Co KG –v- UT Ltd [2006] 1 HKC 238).  It is then for the other party objecting disclosure to show that it is not necessary for disposing fairly of the cause or issue in question or for the purpose of saving costs (see Hong Kong Civil Procedure 2012, Vol 1, para 24/8/1).

Is there a prima facie case?

23. Given the nature of this application being interlocutory, evidence was produced by way of affirmations without oral testimony.  This follows that the answer to this very first question need to be found by reading the contents of the supporting affirmation which, for this application, was filed by Miss Yem on behalf of the Petitioner.  From reading each and every paragraphs of Miss Yem’s Affidavit, I am not convinced that a prima facie case has been made out in favour of the Petitioner’s Summons seeking disclosure.  Miss Yem’s Affidvait only pointed to the undisputed fact that once there was the property at 淘大花園 which had been disposed of with a net balance of HK$515,835.41 due to the Respondent around February 2007.  However, such undisputed fact had existed at all times even long before the Respondent was adjudged bankrupt 1 ½ year later in December 2008.   

24. The Respondent in his evidence had not disputed of having received such net proceeds of sale but allegedly had spent them for repayment of debts prior to his bankruptcy.  This is the answer provided. Miss Yem in her submission in reply on the question of relevance of the information sought under the terms of the present Summons vis-à-vis the ancillary reliefs of two catties of gold sought under the prayer of the Petition was that the Petitioner should be entitled to know the whereabouts of the net proceeds of sale of the淘大花園 property.  Say for example, whether the Respondent had spent them for purchasing other assets instead of repayment of debts.  With respect, I do not agree with Miss Yem.

25. Given the answer of the Respondent as to the whereabouts of the net proceeds of sale of the淘大花園 property, the real issue which calls for determination at the ancillary relief trial would fall upon whether the Respondent’s answer of having spent the net proceeds of HK$515,835.41 towards repayment of debts is credible or believable and whether such sum should or should not form part of the family assets of which the Petitioner should be given a share of it. 

26. In my decision, unless the Petitioner is able to show a prima facie case in the supporting Affidavit that the Respondent had spent the money to acquire other assets as opposed to his alleged repayment of debts, it is simply a question of determining the Respondent’s credentials rather than seeking disclosure of the whereabouts of the said net sale proceeds.  The right to seek such disclosure as to whereabouts of the net sale proceeds could only be asserted if the Respondent’s answer had already been discredited or that there being a prima facie case that such answers are not believable had been made out by the Petitioner in the supporting Affidavit.  However, none of this is forthcoming.

The Respondent’s Bankruptcy

27. It is also important to note that the Respondent was adjudged bankrupt on 30 December 2008, which is over 1 ½ year after he received the said net proceeds of sale of HK$515,835.41.  He is statutory bound to declare his assets and liabilities by using the form of Statement of Affairs which need to be sworn and submitted to the Official Receiver. 

28. Unless the Petitioner is able to show the information contained in the Statement of Affairs (which had been produced by the Respondent as exhibit to his Affirmation) is incorrect or incomplete, there is no room for this Court to disbelieve and reject the contents therein and then to find the Respondent had concealed the net sale proceeds in the Statement of Affairs so as to justify an Order in terms of the present Summons.  By reading the Affirmation of Miss Yem, I am not convinced that the Petitioner has been able to establish such a case to support her Summons.

Conclusion

29. For the above reasons, I find against the Petitioner and that her Summons dated 8 August 2014 must be dismissed.  Since both parties’ are legally aided, I decided not to grant any costs order save and except both parties’ own costs be taxed in accordance with Legal Aid Regulations.

Others

30. As stated, I am sceptical about the progress of these proceedings of having 3 sets of divorce suits one after the other and which had lasted for over 3 years.  I believe this is the right time for the Legal Aid Department (for the Petitioner) to thoroughly review the entire matter from its inception to ensure public funds had been and would be properly and effectively incurred for attainment of justice between the parties as opposed to others’ financial benefits.

31. I direct a copy of this Decision be provided to the Legal Aid Department (for the Petitioner).