CYYC v. TVKT

FCMC 14649 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 14649 OF 2014

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RULING
(Disclosure)

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The Application

1. This is the petitioner wife’s 2^nd application for discovery.  By her summons dated 10 June 2016 the petitioner seeks disclosure against the respondent in respect of her 2^nd Questionnaire. 

2. I shall continue to refer the petitioner wife as “P” and the respondent husband “R” in this Ruling.  It is not necessary for me to set out the background to these proceedings for the reason that I have already done so in a Ruling of 21 December 2015 (“the said Ruling”) when I dealt with P’s 1^st application for discovery and for an interlocutory injunction: §§4 – 13 of the said Ruling.

3. By the time when it came to the substantive hearing, the issues in dispute had somewhat been narrowed down as a result of the Answers given by R on 31 August, 23 September and 3^rd October 2016.  On behalf of R, Mr Lam made further concessions in the substantive hearing on a number of questions on which I have already given the necessary orders on 4 October 2016.  They are Questions 73, 84.1.1, 111, 114, 5.6.3, 6, 7.2, 7.7, 18, 19.1, 77 and 78. Question 56 was not pursued and Questions 71, 72, 74.1 and 76 were disposed of in the First Appointment hearing which took place on the same date; so I do not have to deal with them here.

The Legal Principles

4. Order 24 rule 7 of the Rules of the High Court (“RHC”) is applicable to matrimonial proceedings by virtue of Rule 3 of the Matrimonial Causes Rules (Cap 179A).  I believe the relevant legal principles are not in dispute.  To invoke order 24 rule 7, RHC, there are 3 prerequisites, namely, relevance, existence and possession of the documents sought for discovery.  Once a prima facie case has been made by the party seeking such order, the court has a discretion whether or not to order disclosure.  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:  Paul’s Model Art GMBH & Co KG v UT Ltd [2006] 1 HKC 238; Jade’s Realm Ltd v Director of Lands (unrep., HCA No. 1509/2012, 10 June, 2014) at § 21; also Hong Kong Civil Procedure (2017) at § 24/8/1. 

5. In the context of matrimonial proceedings, Rayden and Jackson on Relationship Breakdown, Finances and Children (July 2016) has this to say on disclosure:

[13.104]

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

(emphasis underlined)

6. Parties to ancillary relief claims owe to court a duty of full and frank disclosure of their financial situation.

7. In H v W & Ors (unreported, HCMC 6/2008, 10 September 2013) Au Yeung J referred to L v L (HCMC 1/2003, 18 November 2005; reported at [2006] HKFLR 121) where Lam J (as he then was) identified that the party who gives disclosure also carries the obligation to present the information in a way that could be readily comprehensible to his opponent.  A good litmus test for distinguishing a bona fide fulfilment of the duty to give disclosure from an attempt to obfuscate is to ask whether the answer or the material can on its own meaningfully assist in informing others as to the means of that party.  The point was made that litigants in matrimonial proceedings and those advising them should appreciate that affirmations of means and answers to questionnaire are not a game of hide and seek.  Too much legal costs and judicial time are spent on such wasteful exercises.  It needs to be stressed that the onus falls squarely and fairly on a party to give full and frank disclosure of his or her own means.  To adopt a wait and see approach with a hope that the opponent might fail to ask the right question is a tactic to be deplored.  That by itself is a breach of the positive duty to give disclosure: at § 43.

Parties’ General Position

8. Mr Coleman SC, for P, submitted that R and his solicitors have continued to adopt the kind of unaccommodating attitude in not giving a responsive answer to most of P’s questions.  On the other hand, Mr Lam argued that P’s approach to discovery can be characterised as (1) blindly accusing of delay, (2) over-elaborated, disproportionate and unnecessary, (3) ignorant of reality, and (4) better-ask-more-than-less and let-the-court-decide. 

9. Before turning to the outstanding questions, I need to mention that during the hearing, there was some debate over the accuracy of the audited accounts produced by R.  The cause for this aroused from R’s assertion in previous correspondences that ledgers and journals were being prepared.  It was questioned why ledgers and journals would still have to be prepared when the audited accounts had already been disclosed.  It was clarified by Mr Lam that the exercise is merely on the re-formatting of the data so that they could be printed out in more legible form. 

The Outstanding Questions

10. I do not propose to set out all the outstanding questions verbatim.  I would do so only when it is necessary. 

Question 17.2 

(Unit Trust Trading Through Other Accounts and Other Securities Trading Losses)   

Please confirm if R is aware of the extent of losses made by him via trading in this account so far?

11. This question is in relation to R’s security trading.  By a letter dated 23 September 2016 R’s reply was essentially that he did not know whether there were gains or losses.  Nevertheless, he had already instructed his forensic accountant to advise him on his performance on securities since 2010 to 2015.  R also reminded P that he was a househusband and not a professional investor.

12. In response, Mr Coleman highlighted this is an apparent shift in R’s position from being a sophisticated investor in growing the family pot as he originally asserted to a simple homemaker.  Initially, he asserted that he had been investing the family assets and had been successful in making “profits”.  It has been emphasized by Mr Coleman that so far R simply still failed positively to articulate his case of “profits”.  He failed to identify what the alleged ‘profits” were, how they were made, and where they are now.  R how retracts to say the value of securities fluctuates so he cannot specify whether he made a loss or gain, and that he was not a professional investor keeping track of and he did not prepare charts of his trading in securities. 

13. Mr Coleman also drew support from H v W & Ors, supra, where it was opined by Au-Yeung J that where the affairs of a party are complex, involving accounts relating to a number of businesses, he/she carries the primary duty to see that disclosure is properly made even where professional advisers have been engaged: at § 44.  R could not stand behind the back of his accountant.  More than 20 months have lapsed but not a single page of analysis from his accountant was in sight.  In any event, R has the duty to carry out proper disclosures. 

14. Mr Lam re-affirmed, on behalf of R, that R takes the primary responsibility on disclosure.  R is waiting for the advice of his forensic accountant.  After that he will give a clear answer, ie whether there were gains or losses.  Mr Lam informed the court that the report is expected to be available by December this year and assured that R’s expert will certainly cover this point.

15. On that basis, considering the long lapse of time, I gave an order on 4 October 2016 that R is to lodge and serve his forensic accountant’s report by 10 December 2016.  I see no reason why I should not give an order that R is to give an answer within 14 days upon receipt of his forensic accountant’s report.  I wish to make it clear that even if R’s expert report unexpectedly does not cover this aspect, this would not be an excuse and he would still be required to give an answer to this question.

Question 21

(Audited Accounts of NP Limited)

Please explain the reason for the transfer of $1,500,000 out from NP Limited’s account back into the R’s Personal Account on 15 June 2011.  The manual markings on the transaction advice indicate this was a repayment of director’s loan to R (copy of an extract of the relevant bank statement is attached at page 83).  However, there is no such indication in the audit accounts of NP Limited for 2012.  In fact, the shareholder’s loan amount went up between 2011 and 2012 by H$7,895 (copy extract from 2012 audited accounts is attached at page 84) despite the fact that over HK$2,000,000 sat in NP Limited’s account untouched from 2011 till 2013.  Please explain such discrepancies.

16. NP Limited is controlled by R.  R’s Answer of 31 August 2016 was that on 14 February 2011, R transferred $1.5 million to NP Limited as a loan.  As the loan was unused, it was returned to R on 15 June 2011.  As both transfers happened in the same financial year, they were booked in the same year. It naturally did not show in 2012 audited accounts. 

17. Mr Coleman submitted that R’s answer does not explain the discrepancies of $7,895.  Notwithstanding the insubstantial amount of $7,895, it shows that the director’s loans did vary and there were movements of funds during the period; and R also has not answered why NP Limited would have the need to raise loans from its directors despite having over $2 million in its account. 

18. In response, Mr Lam submitted that it was not unusual for directors to pay expenses on behalf of the company first, and then to be reimbursed later.  Mr Coleman was right to point out that Mr Lam was putting forward evidence from the bar-table but accepted this might well be an answer.

19. Clearly, the discrepancy in the amounts of directors’ loans on the audited reports shows there were transactions during the year.  P wants to know what the movements were and why.  The thrust is whether an explanation is required.  Bearing in mind that the parties are at the stage of ascertaining the size of the pool of assets for the purpose of FDR hearing and that the court, as part of its case management role, should regulate the extent of disclosure so that the exercise is proportionate to the issues in question, I agree with Mr Lam that movements of funds with a difference of less than $10,000 would not assist the parties for the purpose of identification of assets available for division.  I do not consider this question is warranted.

Question 24.1

(Dual HK/PRC Car Licences)

Please provide documentary evidence, including a copy of the purchase agreement and invoices/receipts, to support the amounts of RMB660,000 and RMB760,000, which, according to R's Form E, were spent on acquiring the first and second Plates in May 2012 and July 2012 respectively, and identify the source of funds, supported by bank statements. If they were both acquired in case, identify the cash withdrawals from the relevant bank statements.

20. R previously disclosed the price of the 1^st plate was RMB660,000 and he identified one of the transfers to his friend Mr Lo in RMB200,000 was attributable to the purchase of this license.  P now seeks to know where the remaining RMB460,000 came from. 

21. Mr Coleman accepted that R might have partly answered this question when he explained the purposes of 5 transfers to Mr Lo; however, it seems that the source of RMB460,000 for the licence plate has still not been explained.  Mr Coleman emphasized that where the money came from is important.

22. It is unclear whether P has doubts over the actual price paid for the 1^st plate, hence she wants to trace the source to ensure that R did not inflate the price. Yet, apparently, there is no challenge on the 2^nd plate which R said was purchased for RMB760,000.  As I said in the said Ruling, P has one main theme running through her application for discovery:  she is suspicious that R may have further assets yet undisclosed to her and there is a “black hole” of missing family assets of as much as $100 million:  §§ 8 and 9.  P is determined to conduct a ‘strip search’ on R’s affair.  Whist I can understand the approach taken by P,there are limits as to how far this approach can be stretched.  I agree with Mr Lam that what is important is what assets there are and then have them valued.  Given that R has accepted the principal source of funds for investments he made was from P’s legal practice, I see little purpose in knowing where the fund came from.

Question 24.2.1

(2^nd HK/PRC Car Plate)

Who is now using the Second Plate, and whether any rental income is received in respect thereof. If yes, please identify the account(s) into which the income is received, and provide the relevant bank statements from 2012 to date.

23. R’s answer, via his solicitors’ letter of 23 September 2016, was that the licence has been granted, but the plate has not been issued.  Since there is no car licence plate, there is no renting.

24. During the hearing, P changed her position by asking for the production of documents evidencing the grant of the license, the price and possibly why the plate has not been issued.  Mr Lam, in reply, said there was no such document.  He accepted that R will have to make an affirmation to confirm this.  In my view, if this is R’s answer, this is conclusive at this stage and P has to bear with it.

Question 49

(Rental Income of landed properties in Hong Kong)

Please confirm for which periods since their acquisition (i) 36C Whitty Street Court and (ii) Rooms B, C and D of Tsui Yuen Mansions, were left vacant and why they were left vacant? If they were not left vacant, then please produce the rental agreements for each of the nine units since they became available for rent.

25. The properties in questions were purchased by R.  They were partitioned into several units for the purpose of renting out.  By his Answer of 31 August 2016, R said,

"They were not left vacant, except during the gaps of changing tenants for the sub-divided units or for refurbishment when required…R does not have the requested rental agreements of the sub-divided units in his possession. It would be very costly to engage the accountant to work out the respective period of vacancy of each and every sub-divided units on all the monthly statements since the time the various properties had been acquired. Such information, even when they are available, would not assist the Court for the FDR or the Trial. The Court is requested to strike a balance thereon as requested in the last Answer."

26. Further, by a letter of 23 September 2016, R objected to the production of all the rental agreements of the many sub-divided units for all the years since their acquisitions on the ground that they are minute in nature and that their respective rentals have been properly recorded in the company’s books and reflected in its accounts and audited accounts.

27. In the hearing, Mr Coleman narrowed down his focus on the production of all the rental agreements.  They may not be in R’s possession as alleged, but it is definitely within his control and power to obtain those agreements from the professional agents or from his partner Mr Ip.

28. Mr Lam’s ground of opposition was neatly made:  the discovery should be proportionate. The audited accounts of TA Limited, which holds the properties, should be sufficient.  At all events, there is no challenge to the propriety of the auditing. 

29. I must say I have to agree with Mr Lam.  It is trite that the court will not make an order unless the discovery sought is necessary either for disposing fairly of the cause or matter or for saving costs.  I see little purpose in producing the rental agreements.

Question 61

30. This question concerns an address at Oriental Ginza Building, Shenzhen that was used by R as the contact address on a Sale Agreement when he sold another property in Shenzhen.  The original question was on the ownership of this property, whether it was owned, directly or indirectly, by R, whether it was rented by R or whether the renting was funded by R; and if the property was neither owned nor rented by R the reason for using this address.

31. R gave an answer that he does not own or rent the property and he has no documents on proof of ownership.  It was an address provided by his girl friend CX and he was told that the property was rented. He does not know who owns the property and he merely used this address for convenience.

32. Mr Coleman contended that R failed to explain why the address was convenient.  R’s answer does not fully explain why the address was used.

33. With respect, I have to agree with Mr Lam that R has already said he has no idea on the ownership of the property.  R has given an answer that the address was for convenient.  I consider this should be the end of the matter at this stage; any dispute on that is a matter for trial. 

Question 66

Please explain the need for R to close his HSBC Broking securities account which was funded out of the Joint Account, transfer all funds therein to his Personal Account in December 2013, and then open a BOCI securities account, funded afresh out of the Joint Account?

34. While the HSBC Broking securities account was funded out of parties’ joint account, it was opened in R’s sole name.  Essentially, P is asking why funds were taken out from the parties’ joint account and deposited into R’s own account.

35. R’s answer of 31 August 2016 was that as HSBC was reducing its service products, he closed the HSBC account.  He then found another service provider, ie BOCI.  He also supplemented on 23 September 2016:

“…If P’s question is why he closed the joint account and “transferred all the funds therein to his personal account”.  The answer is simply Why not?  Same answer for the question of “using funds afresh from the joint account”.  The parties were in normal relationship in 2013.  R had no intention whatsoever to differentiate between his personal accounts and the joint accounts in 2013 or at all, as all funds in all accounts were part of the family pot.  If P implies improper dealings by R in the matter in Q66, it is hereby denied. “

36. Mr Coleman made the point that “Why not” is not an answer to the question.  If there was no differentiation between the joint accounts and his personal accounts, then there must be some other reasons for his action. R did not make these suspicious transfers before 2010.  His plan to remove funds from P’s accounts unilaterally since 2010 is telling.

37. I agree that “Why not” is not a proper answer. It is argumentative and unhelpful; some may even find it discourteous.  R said the parties’ relationship was normal at that time and there was no differentiation between the accounts.  I can readily see one can argue that if that was the case, why the funds were not transferred from one joint account to another joint account.  One could also raise other doubts arising from this answer.  Yet, be that as it may, I agree with Mr Lam that R has already given his answer, whether P likes it or not.  Again, any dispute on that is a matter for trial.

Question 81

(HSBC Shenzhen Accounts)

Please confirm that all entries in the banks statements that are marked "Self Dep" or "Self W/D" (on 15 May, 30 Aug, 11 and 17 September, 8 and 17 Oct, 2 Nov 2012, 27 Mar, 11 and 25 April, 9, 16 and 30 May 2013) were made by R travelling up to Shenzhen personally on weekdays to make over the counter transactions in person?

38. R has already said since he could not withdraw cash from cash dispensing machine from the account that he opened in Hong Kong so he opened the accounts in Shenzhen and confirmed that apart from him, there was no other signatory to his HSBC Shenzhen accounts.  P wants to know whether R made the deposits and withdrawals personally or someone did these on his behalf.  To this, R replied on 31 August 2016 that he had no recollection of the dates specified and further questioned the relevance of this requisition.  Mr Coleman argued that this is relevant as it will show either R went up to the Mainland to arrange the transactions or the account was operated by a third party. 

39. It seems to me what are relevant should be the purposes of these transactions and where the monies went; it is of particular relevant if the total amount involved is immensely huge but unfortunately I was not told of the figure in question.  I agree with Mr Lam that this question does not assist the court in ascertaining the assets, and thus it is irrelevant.  Even if some of the transactions were done by some other people on R’s behalf, I fail to see how this issue would assist the parties for the purpose of FDR. 

Question 89

40. This question concerns the withdrawals of a total sum of $170,000 (from 17 November 2012 to 8 June 2015 by 8 transactions) by one Mr Ip, R’s friend and partner in TA Limited.  Given that Mr Ip only paid $43,500 into the company, P wants to know why he would be entitled to receive $170,000 from the company.

41. In brief, R’s answer of 31 August 2016 was that receipts from and payments to Mr Ip are part of the movements in the Directors’ accounts of Mr Ip.  The balances in the Directors’ accounts are changing all the time.  When the company requires fund, either Mr Ip or R would loan to it. When the company has incomes and cash, directors’ loans would be repaid. 

42. Again, I have to agree with Mr Lam that this question is not relevant.  R has already given the answer that these withdrawals were movements in Mr Ip’s Directors’ account and the audited statements have also been provided.  It seems to me what is relevant should be the net position – how much the company owes to Mr Ip or vice versa.  This would inform the parties the amount that is available for division.  Mr Coleman pointed out that there is no differentiation between Mr Ip and R when it comes to the Directors’ accounts on the audited statements.  If that is the case, as I see it, what P should have asked for should be their individual figures.

Questions 106 and 107

43. I would deal with these 2 questions in one go.

44. These 2 questions concern R’s investment of $2.5 million in a Guangzhou company of which a Mr Ng is the chairman and a Mr Fu is one of its directors, both are personal friends of R. 

45. Question 106 deals with the injection of capital by R into the company.  In support of his assertion that he had made a payment R produced an unsigned term sheet dated 15 July 2013.  R confirmed that there was no signed term sheet but insisted that the confidentiality provision contained in the document is binding on him.  P wants to know why R says the confidentiality provision is binding.  R has given a reply that this question is a question of law.  Mr Coleman argued that P is not seeking a legal opinion but the facts upon which R made his assertion.

46. Question 107 follows up on R’s assertion that he could not get any information as to the “total loss” he suffered from this investment.  In his Answer dated 31 August 2016, R said he had requested Fu several times verbally and was told of the total loss. He had also instructed his solicitors to make inquiry with the company by 2 separate letters but no response was received.  Dissatisfied with this answer, P wants R to explain why, given that his business relationship with this company involves persons in senior positions who are both his friends he still claims he cannot get any information. P seeks R to explain what attempts were made by him to obtain this information.  It can readily be seen the implication is that it is unbelievable for him not being able to obtain any documentary proof.  Mr Coleman said R should provide meaningful documents, such as the audited/unaudited financial statements of the company or any other financial information concerning the current status of the investment for the joint valuer to consider the current value of the business. Alternatively, R could have asked Ng and/or Fu to file an affirmation to explain the business and its current status.

47. Mr Lam’s reply is simple and straightforward.  P may not be happy with the answers, but they should be taken as conclusive at this stage.  P would have the chance to deal with this when it comes to R’s cross-examination in trial.  Mr Coleman does not disagree with this suggestion but he said P wants to narrow down the scope of examination. 

48. I agree with Mr Lam that the matter should be considered as conclusive at this stage.

Question 115

(Loan to Mr Ip)

According to R’s Answer No 85 of his first Answer, he produced a schedule of sums allegedly ‘banked in’ or ‘transferred’ to him by Ip. Please explain why there are discrepancies in the bank statements disclosed which do not match the other dates claimed by R when Ip allegedly made repayments, for example: $125,000 allegedly repaid by transfer on 26 July 2013?

49. R’s Answer of 31 August 2016 was that he guessed the discrepancies on dates were due to the clearing process of the bank involved; and the said $125,000 was not part of the personal loan.  However, subsequent to this, by his solicitors’ letter of 23 September 2016, R changed to say the said $125,000 was considered a repayment by Mr Ip in the month of July 2013 towards his debts owed to R.

50. I cannot accept Mr Lam’s submission that the answer as regards the loans made by R to Mr Ip can be found in TA Limited’s audited accounts for the simple reason that this is a matter between two individuals, albeit they are both directors of the company.  Mr Lam also referred me to a letter sent out by R’s Solicitors as early as on 24 February 2016 where it was explained that though Mr Ip deposited $30,000 in July 2013 only as part repayment of the loan, for the reason that R during the same month also withdrew $190,000 it was agreed that half of this $190,000 (ie $95,000) would be considered as repayment of loan by Mr Ip; so adding $95,000 and $30,000 together would give a figure of $125,000.  That said, Mr Lam accepted there is an inconsistency on the face of the 2 answers given by R. 

51. I have no doubt that R has to provide particulars on all the loans that were made to Mr Ip and all the repayments that are said to have been made by him; as such R has to clarify whether or not the said $125,000 was part of the repayment of loan.

Orders

52. For the reasons aforesaid, I give the following orders:

1.   The respondent do file and serve his answers to Questions 24.2.1 and 115 of the petitioner’s 2^nd Questionnaire within 14 days;

2.   The respondent do file and serve his answers to Question 17.2 of the petitioner’s 2^nd Questionnaire within 14 days upon receipt of his forensic accountant’s report but in any event by 24 December 2016;

3.   Questions 21, 24.1, 49, 61, 66, 81, 89, 106 and 107 of the petitioner’s 2^nd Questionnaire are dismissed; and

4.   Penal notice be endorsed.

Costs

53. Mr Coleman reminded me of the history of the proceedings which shows repeated procrastinations and delays on the part of R.  It is not necessary for me to set out the chronology here.  As a matter of fact, some of the incidents have been referred to in the said Ruling when I dealt with P’s 1^st application for discovery.  The more recent event was the liquidation of funds amounting to USD 1 million from R’s “I Fast Account” in August 2016.  R or his solicitors could have given a straightforward answer but instead, they saw it fit to engage in unnecessary correspondences on peripheral matters and finally, it took R as long as 8 days to give a simple reply that the funds were liquidated due to the ownership re-structuring of the investment plan.  An issue that could have been resolved easily was made complicated in the process by an argumentative approach.  It was entirely unnecessary and a waste of costs.  Since I have been living with this case for 2 years I can say P’s complaints are not without grounds.  It is clear that some of the answers could have been given much earlier. 

54. Meanwhile, I take the view there is some force in Mr Lam’s submissions that some of P’s questions were disproportionate and unnecessary and P adopted a “better-ask-more-than-less and let-the court-decide” approach.  These can be seen from the rejection by the court of the above outstanding questions.

55. Taking all the factors in a round and doing the best I can, I consider it is fair that the respondent is to bear half of the costs of this application, with certificate for senior counsel and to be taxed if not agreed; and I so order.  There be no order as to costs in respect of the remaining half of the costs.