HCMJ v. HYM

FCMC 12078 / 2014

[2020] HKFC 164

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 12078 OF 2014

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J U D G M E N T
(Ancillary Relief)

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Introduction

1.  In this ancillary relief application, the petitioner (“the wife”) seeks a transfer of property and lump sum payment against the respondent (“the husband”).

Background of this suit

2.  The wife and the husband were married on 7 January 2004. The wife petitioned for divorce on 17 January 2013 but was withdrawn shortly. On 11 September 2014, the petitioned again on ground of two-year separation. Decree nisi was pronounced on 10 June 2016.

3.  The wife and the husband are in their forties and fifties.  They have a son and a daughter who are 20 and 14 years old (“the elder son and the younger daughter”).  On 19 November 2015, by consent, sole custody, care and control of the both children were granted to the wife and reasonable access to the husband.

4.  The elder son had his secondary education in New Zealand and is studying Economics in a university in Australia. He is moving towards the qualification of a certified public accountant. He has poor eye sight and needed regular treatments. The younger daughter is a Form 3 student in a secondary school in Hong Kong. Although she has been suffering from Attention Deficit Hyperactivity Disorder, she works hard towards her tertiary education abroad. Both the wife and husband agreed the younger daughter should join the elder brother abroad to attain tertiary education and beyond. Prior to handing down of this judgment, by consent, the wife obtained an order to remove the younger daughter to Australia for further education on 23 December 2019.

5.  On 2 February 2016, the husband was ordered to pay the wife HK$8,000 maintenance pending suit: HK$15,000 (HK$7,500 each) interim children maintenance for the month of February and March 2016 and from April 2016 at HK$25,000 per month until further order (“the MPS”). The husband did not pay MPS as ordered on a timely basis and that has resulted in a judgment summons taken out by the wife on 8 September 2016. On 28 October 2016, the husband in turn applied to vary the MPS to zero. On 13 October 2016, the wife’s judgment summons was adjourned pending resolution of the husband’s application for variation of MPS. As at trial, the husband is owing HK$537,000 MPS to the wife.

6.  Prior to trial and with a view to resolve the outstanding MPS, on 14 June 2017, the husband gave an undertaking to Court to sell the only apparent family asset, a piece of land in Hunghom (“the Land”). The Land was acquired by the husband in a series of litigation of adverse possession and is now operating as an open-carpark with 32 carpark spaces, it has limited commercial value because it cannot be redeveloped on its own with easement covenanted.  The husband leased the Land to his tenant at HK$30,000 per month. Both parties agreed the value of the Land assessed by a joint surveyor at HK$17,200,000.  Nevertheless, the value of the Land may be depleted by costs on litigation because it is subject to litigation in the District Court and the Court of First Instance (DCCJ 4578 of 2018 & HCA 2420 of 2018) regarding easement issues with the owner of the adjoining property. 

7.  I am given to understand the parties were unable to sell the Land and the outstanding MPS was left unresolved. Both the wife’s judgment summons and the husband’s application for variation of MPS are still on foot. The outcome of this ancillary relief trial shall be final and it is unnecessary to determine on variation of MPS. As the judgment summons was premised on a different cause, I see fit to direct the wife to consider whether to proceed with judgment summons after handing down of this judgment. 

Background of the parties

8.  The husband was running a mobile phone business whereas the wife was working as a saleslady of high-ends apparels when they met in 1997. The couple started to cohabit in 1998 and the wife gave birth to the elder son in the same year. They finally married in 2004. Since cohabitation, the husband developed his business in selling CDs and DVDs, building / construction businesses and some other businesses in the PRC. The wife has been a full time wife and mother taking care of the family save she had embarked on some ad-hoc retail business.

9.  Over the years, the wife found the husband had become a member of a triad society. In 2010, the husband was ambushed and attacked by rival gangs with knives and had ended up in hospital. The incident was reported in local newspapers. The wife believed the husband was a successful businessman and also an influential figure in the PRC because in the same year, the husband was appointed as a member of the Chinese People’s Political Consultative Congress (“CPCC”).

10.  Sadly, the relationship started to deteriorate in or about 2011 when the husband frequently travelled to PRC. The wife discovered photos in the husband’s cellphone depicting himself and a female in an intimate manner.  By 2012, the husband stationed in the PRC for most of the time, he would usually had dinner with the wife and the children when he returned to town occasionally. The wife came to know at a later stage a child was born by the husband with a female in the PRC.

11.  Unbeknown to the wife, in 2012, the police started investigating the husband and had attempted a house search in the matrimonial home. The wife developed anxiety and has diagnosed to have suffered from brain neurasthenia. Starting from 2013, she attended regular social welfare counselling sessions to maintain her mental and emotional stability and further sought treatments from a Chinese herbalist.

12.  The younger daughter started to develop emotional symptoms, she has been suffering from ADHD and was followed up in a government hospital. The younger daughter sought treatment from a psychiatrist and was administered with prescriptive medication, she was also referred to counselling program on a need basis.   Later the day, the younger daughter found herself to suffer from food allergy. The wife, as a mother, took the responsibility to prepare her meals carefully.

13.  The wife petitioned in 2013 but was withdrawn upon the husband’s promise to support the elder son’s overseas education expenses.

14.  In August 2014, the husband was arrested and charged with “money laundering” for a sum over HK10,000,000 (DCCJ 787 of 2014).  The husband admitted he has borrowed HK$3 million as legal costs in defending himself in the criminal trial.

15.  In September 2014, the wife petitioned for divorce for the 2^nd time.

16.  It was uneventful after the wife petitioned for the 2^nd time. The husband deprived the wife and the children a basic roof over their heads. The husband once returned to the matrimonial home in early 2016 with a view to reconcile with wife, he promised her the same luxurious style of living plus HK$200,000 cash to use for the forthcoming Chinese New Year. Upon the wife’s refusal, the husband left the matrimonial home with all his belongings for good.  Started from March 2016, the husband refused to pay rent and living expenses, the landlord repossessed the matrimonial home. Without other choice, the wife and both children squatted in the maid’s room of her brother’s flat in the New Territories. The children lost all their books, toys, clothes overnight. The younger daughter was exhausted when she had to travel back and forth from the New Territories to her school in Hong Kong Island.

17.  The wife borrowed money to maintain herself and both children during difficult times. She was able to secure loans from (i) her friend Ms AH to pay for the medical and school expenses of both children; and (ii) her friend Ms W for settling same expenses between the period from June 2018 to October 2018 including paying the medical expenses of the elder son in Australia.

18.  On 28 December 2018, HH Judge Yiu convicted the husband after trial and had sentenced him for a period of 3 years and 9 months. I am given to understand, after this ancillary relief trial, the appeal against conviction and sentence taken out by the husband was dismissed by Pang JA on 9 April 2020 (CACC 33 of 2019; [2020] HKCA 234).  I am told the husband’s expected time of release would be around June 2021.

The family’s standard of living

19.  The wife and the children enjoyed a high standard of living during marriage, the family used to live in a spacious 3-bedroom apartment in Siu Sai Wan with a domestic helper.  The family then moved to a rented premise in North Point after the apartment was sold in 2008. The husband was responsible to pay HK25,500 monthly rent.

20.  The husband gave the wife around HK$100,000 – HK$130,000 per month to spend and as much as she needed for spending with supplemental credit cards. The children had a good supply of branded clothing, toys and gadgets. The wife bought for herself and the husband carat sized diamond rings, luxurious watches, branded handbags, branded apparels on a regular basis. The husband usually wears a 2-carat diamond ring. Travelling overseas for vacations was also a norm of the family.

21.  According to the wife’s 8^th affirmation, the wife deposed in detail the family expenses on both vacation trips and luxurious items between the period April 2012 – 2015, to name a few, it was not unusual for her to spend few ten thousand dollars per trip to Taipei, Bangkok, Japan, Australia and New Zealand. On 2 February 2014, she recalled she had purchased a branded handbag costed HK$31,483.87 at Jenyi Airport. The wife and the children continued to go on overseas holidays almost every school holiday. Sometimes they flew business class or premium economy and staying in 5-stars hotels.

22.  The wife was also able to spend around HK$1,000 to $1,500 monthly on foot massage. The husband bought expensive diamonds, watches, handbags as gift to her whenever he was in good mood and on her birthdays.

23.  The family owned private cars, the latest one was a new Porsche Cayenne platinum edition. During the marriage, the wife was provided with a Toyota Mark X 300G for her own use for the first time in 2005 and a brand new Mercedes Benz C280 in 2008. The husband then bought an Audi Q5 for his own use in 2011 and finally a brand new Porsche. The wife said the Audi Q5 came with a cross border vehicle licence and was mainly used by the husband to shuttle between Hong Kong and the PRC. The husband had a chauffeur /bodyguard always. In 2017, the Porsche was sold for HK$230,000  and the balance of proceeds were paid to the Director of Legal Aid and was subject to a first charge upon settlement of part of the outstanding MPS.

24.  The husband was never short of cash, he appeared to the wife that he had been running various businesses successfully under the name of others. He is also an investor of a large housing project in the PRC. To the wife’s understanding, the husband has always been an agent in sale of land, goods and business projects. He owns construction / renovation businesses and an apparel manufacturing business. The wife knew the husband was also involved in operating illegal gambling, vice establishments, sauna parlours and hotels in the PRC.

The wife’s open offer

25.  The Land is the only visible family asset. The wife seeks clean break with the husband by offering the husband to transfer the Land to her at nil consideration.

The husband’s open offer

26.  The husband offers sale of the Land with sale proceeds to be distributed in the following proportions:

(i)     4/10 be paid to the wife (HK$6,880,000);

(ii)    4/10 be paid to the husband (HK$6,880,000);

(iii)   1/10 be paid to the elder son (HK$1,720,000); and

(iv)   1/10 be paid to the younger daughter (HK1,720,000).

27.  The husband agrees the outstanding MPS in sum to be deducted from the sum from his share of the proceeds of the sale of Land.

The wife’s case

28.  The wife intended to relocate with the younger daughter to Australia when the elder son is already studying there. The elder son has attained distinctive results at school in Australia and will be expected to continue his studies there.

29.  At time of trial, the wife is urging for the need of an accommodation for herself and the younger daughter because both of them were squatting in a maid’s room measured 65 square feet. The needs of the wife and the younger daughter had changed after the consent order on removal of the younger daughter to Australia on 23 December 2019.

30.  The wife is seeking what is sufficient in maintaining herself and the children to stay in Australia for good. The wife intends to sell the Land to repay her debts and means to provide a roof and living costs of the children. The wife takes full responsibility of the children, their upkeep, education and welfare. It is expected the elder brother will continue to proceed to his master’s degree and followed by professional qualification in 2025. The younger daughter will continue with her education in Australia for at least 7 years until graduation. The wife expected she will not be permitted to work there.

31.  The wife estimated the costs of buying an apartment in Australia around HK$5.37 million, she may need an extra HK$250,209 to purchase a car for transport and another HK$500,000 to pay off renovation, furniture, tax and insurance. She specifically asked for medical expenses of the elder son in sum of HK$50,000. All items totalling HK$6,170,209[1].

32.  The wife is also seeking monthly maintenance at HK$111,676.50[2] for herself and both children.  

33.  The wife said the Land is not the only family asset, the husband did not disclose his true financial position. She seeks an order of transfer of the Land plus HK$20 million lump sum payment or alternatively a lump sum payment of HK$37.2 million to be paid by the husband.

The husband’s case

34.  The husband was an employee of SD Limited earning HK$30,000 per month. He left the job by the end of 2015. The Land is the only matrimonial asset. He has limited income generated from the rental income of the Land. The husband is expected to release from imprisonment in June 2021 and after that his income and earning capacity will not be the same as before. He expects to earn a very low income.

35.  The husband accepted the living style and standard of living of the family the way the wife had put forward. The only issue in dispute was the wife’s earning capacity. At her age, the husband said she should be able to return to the labour market few years later when the younger daughter is able to take care of herself. The husband disagreed the wife should purchase a property in Australia, it is good enough to live in a rented premise, like the way he has provided them in Hong Kong.

General principles for ancillary relief

36.  To start off with the landmark case of LKW v. DD (2010) 13 HKCFAR 582, section 7 of Matrimonial Persons and Property Ordinance, Cap 192 (“the MPPO”) should be approached with 5 steps, namely, (i) identification of assets; (ii) assessing parties’ financial needs; (iii) deciding to apply sharing principles; (iv) considering whether there are good reasons to depart from sharing principles; and lastly (v) deciding the outcome.

37.  Section 7 of the MPPO reads:

“7. Matters to which court is to have regard in deciding what orders to make under sections 4, 5 and 6

(1) It shall be the duty of the court in deciding whether to exercise its powers under section 4, 6 or 6A in relation to a party to the marriage and, if so, in what manner, to have regard to the conduct of the parties and all the circumstances of the case including the following matters, that is to say—

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

(g) in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.”

38.  An order for property transfer order or a sale of property is governed by sections 6 and 6A of the MPPO:

“6. (1) On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation, or at any time thereafter (whether in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may, subject to the provisions of sections 10 and 25(1), make any one or more of the following orders, that is to say-

(a) an order that a party to the marriage shall transfer to the other party, to any child of the family or to such person as may be specified in the order for the benefit of such a child such property as may be so specified, being property to which the first-mentioned party is entitled, either in possession or reversion;

(b) …

(c) …

(d) …

(e) an order for the sale of such property as may be specified in the order, being property in which or in the proceeds of sale of which either or both of the parties to the marriage has or have a beneficial interest, either in possession or reversion, and for use of proceeds of such sale…

Step 1: Identification of assets

39.  The very first step in determining ancillary relief pursuant section 7 of MPPO is to identify matrimonial assets. Without being able to ascertain the value, the Court is left with a difficult position to decide on the other outcome.

The wife’s allegation on the husband’s non – disclosure

40.  The main issue of this trial is material non-disclosure on the part of the husband. With the wife’s understanding the husband has been a notable businessman, she witnessed he has presented his name card representing himself as an agent to various companies. She does not believe the husband is working as a consultant earning a monthly income of HK30,000 and was out of work prior to their separation. The husband cumulated substantive wealth during marriage, the wife sees the husband’s evidence did not reflect the true picture on his financial status, he has failed to disclosure fully and frankly his assets. The wife invited me to draw adverse inference against the husband.

41.  The wife explained in her 6^th affirmation that she was only aware of the husband’s true and detailed financial status by reading the affirmation of the husband filed in his bail application. The husband has been

(i)     since 2011 conducted business as a sales and purchase commission broker who has had many years of experience;

(ii)    he was granted with the registration of a business of DXXXXXXX RXXXXXX CXXXXXXX Co. Ltd in mainland China. The husband was found to be a member of the Chinese People’s Political Consultative Committee;

(iii)    he was the project manager of a company EXXXXX CXXXXXXXXXXX EXXXXXXXXXX Ltd;

(iv)    he was a business director of a company EXXXXX Limited. 

42.  The wife further discovered the husband has undisclosed income and assets deposited to the following accounts:

(v)     HSBC account no 112 –XXXXXX-XXX;

(vi)    China Construction Bank account 6217 – XXXX – XXXX – XXXX – XXX; and

(vii)   Chiyu Banking Corporation Ltd account 039 – XXX – X – XXXXXX – X.

Principles on material non-disclosure

43.  In the landmark English Court of Appeal case, Baker v. Baker [1995] 2 FLR 829, her Ladyship Butler-Sloss stated the duty of full and frank disclosure is applicable to both parties. The problem of non-disclosure arose in cases where on party has deliberately failed or refused to provide the material facts and concealed from the other party and the court his true financial position. Her ladyship summarized the J v. J [1995] P215 line of cases that the Court can and should draw adverse inference against the party whom is guilty of deliberate failure to give the court and accurate and complete picture of his true financial resources.

44.  The Court of Appeal in Hong Kong gave a stern warning of the consequence of non-disclosure in L v. C [2007] HKFLR 334, Stock JA at paragraphs 67:

“68. This is a poor state of affairs. That this kind of conduct in matrimonial ancillary proceedings is not unique is well understood but what seems not well to be understood is the actual consequence of such conduct, namely, the drawing of adverse inferences, and a further potential consequence of such conduct: there can be little doubt but that in cases of this kind questions of perjury may arise and although each case will no doubt be approached with suitable sensitivity, the option of referring papers to the appropriate authority is an option that judges will bear in mind and which legal advisers would do well to draw to the attention of their clients.

69. The effect of the authorities has been summarised thus:

“The importance of the duty of both husband and wife to make disclosure of their assets which is full, frank and clear cannot be over emphasised.  Unless a court is provided with correct, complete and up-to-date information on the matters to which … it is required to have regard, it cannot lawfully or properly exercise its discretion in the manner ordained by [the statute].  The duty of each party is absolute, and it must be discharged regardless of whether the application for ancillary relief is adjudicated upon by the court after full evidence has been heard, or settled after an exchange of financial information between the parties leading to a consent order.  The duty is also a continuing one; a party must not mislead the other party and the court into assuming that his financial situation is unchanged if it [in] fact has changed. … A party who seeks to negotiate and secure a settlement without informing the other party about a material change in his or her financial circumstances runs the risk that, if a settlement is reached and a consent order is made, the consent order will be set aside by the failure to provide full, frank and timely disclosure. Shortcomings in disclosure will be visited by orders for costs against the offending party, often on the indemnity basis.  Furthermore, deviation from the standard of disclosure required may be visited by the court drawing adverse inferences against the party in default.”

Rayden and Jackson on Divorce and Family Matters, 18^th ed.,  para 17.28”

45.  In a more recent case NG v. SG [2011] EWHC 3270 (Fam), [2011] All ER (d) 180 (Dec), Mostyn J gave a useful summary on the consequence of non-disclosure by either party. When relying on available evidence to draw appropriate inference and to embark on guesswork, her Ladyship concluded the following steps to avoid unjust results:

“[16] Pulling the threads together it seems to me that where the court is satisfied that the disclosure given by one party has been materially deficient then:

(viii) The court is duty bound to consider by the process of drawing adverse inference whether funds have been hidden.

(ix)   But such inferences must properly drawn and reasonable. It would be wrong to draw inferences that a party has assets which, on an assessment of the evidence, the court is satisfied he has not got.

(x)   If the court concludes that funds have been hidden then it should attempt a realistic and reasonable quantification of those funds, even in broadest terms.

(xi)   In making its judgment as to quantification, the court will first look to direct evidence such as documentation and observations made by the other party.

(xii)  The court will then look to the scale of business activities and lifestyle.

(xiii) Vague evidence of reputation or the opinions or beliefs of third parties is inadmissible in the exercise.

(xiv) The Al-Khatib v Masry technique of concluding that the non- discloser must have assets of a least twice what the claimant is seeking should not be used as a sole metric of quantification.

(xv)  The court must be astute to ensure that a non-discloser should not be able to procure a result from his non-disclosure better than that which would be ordered if the truth were told. If the result is an order that is unfair to the non-discloser it is better that than the court should be drawn into making an order that is unfair to the claimant.”

46.  HH Judge I Wong updated the law on non-disclosure in his recent case TCP v. KLS [2020] HKFC 67 in paragraph 51:

“51. There has been some development recently, in particular in respect of the principles set out in para [16] (iii) and (vii) of NG v SG (Non-Disclosure), in the English Court of Appeal case of Moher v Moher[2019] EWCA Civ 1482; [2020] 2 WLR 89; [2020] 1 FLR. 225; [2019] 3 FCR. 244. The court held that in the event of non-disclosure of a party's financial resources in a financial remedies case, the court was not obliged to give a precise figure or bracket for the undisclosed resources before making an order. Instead, it should: (i) seek to determine the extent of the undisclosed resources; (ii) draw such adverse inferences as were justified; and (iii) where appropriate, infer that resources were sufficient that the proposed award represented a fair outcome.

Moylan LJ said,

86. My broad conclusions as to the approach the court should take when dealing with non-disclosure are as follows. They are broad because, as I have sought to emphasise, non-disclosure can take a variety of forms and arise in a variety of circumstances from the very general to the very specific. My remarks are focused on the former, namely a broad failure to comply with the disclosure obligations in respect of a party's financial resources, rather than the latter.

87. (i) It is clearly appropriate that generally, as required by section 25, the court should seek to determine the extent of the financial resources of the non-disclosing party.

88. (ii) When undertaking this task the court will, obviously, be entitled to draw such adverse inferences as are justified having regard to the nature and extent of the party's failure to engage properly with the proceedings. However, this does not require the court to engage in a disproportionate enquiry. Nor, as Lord Sumption JSC said, should the court “engage in pure speculation”. As Otton LJ said in Baker v Baker [1995] 2 FLR 829, inferences must be “properly drawn and reasonable”. This was reiterated by Baroness Hale of Richmond JSC in Prest v Prest [2013] 2 AC 415 , para 85:

“the court is entitled to draw such inferences as can properly be drawn from all the available material, including what has been disclosed, judicial experience of what is likely to be being concealed and the inherent probabilities, in deciding what the facts are.”

89. (iii) This does not mean, contrary to Mr Molyneux's submission, that the court is required to make a specific determination either as to a figure or a bracket. There will be cases where this exercise will not be possible because the manner in which a party has failed to comply with their disclosure obligations means that the court is “unable to quantify the extent of his undisclosed resources”, to repeat what Wilson LJ said in Behzadi v Behzadi [2009] 2 FLR 649 .

90. (iv) How does this fit within the application of the principles of need and sharing? The answer, in my view, is that, when faced with uncertainty consequent on one party's non-disclosure and when considering what Baroness Hale and Lord Sumption JJSC called “the inherent probabilities” the court is entitled, in appropriate cases, to infer that the resources are sufficient or are such that the proposed award does represent a fair outcome. This is, effectively, what Munby J did in both Al-Khatib v Masry [2002] 1 FLR 1053 and Ben Hashem v Al Shayif [2009] 1 FLR 115 and, in my view, it is a legitimate approach. In that respect I would not endorse what Mostyn J said in NG v SG [2012] 1 FLR 1211, para 16(vii).

91. This approach is both necessary and justified to limit the scope for, what Butler-Sloss LJ accepted could otherwise be, a “cheat's charter”. As Thorpe J said in F v F [1994] 1 FLR 359 , although not the court's intention, better an order which may be unfair to the non-disclosing party than an order which is unfair to the other party. This does not mean, as Mostyn J said in NG v SG, at para 7, that the court should jump to conclusions as to the extent of the undisclosed wealth simply because of some non-disclosure. It reflects, as he said at para 16(viii), that the court must be astute to ensure that the non-discloser does not obtain a better outcome than that which would have been ordered if they had complied with their disclosure obligations.”

The husband’s non – disclosure / hidden business

47.  I observed, after the assault in 2012, the police investigated the husband’s involvement in trial activities, the wife witnessed some triad members paid visits to the husband in hospital. The wife learned the husband’s business by seeing the scale of business he has had throughout the years in which I accept, with the status of a CPCC member, the husband must be an influential figure in his “industry”.

48.  There is evidence the husband had carried out garment manufacturing business in Dongguan and had invited movie stars to appear in the grand opening of his apparel shops. The wife was there once seeing people congratulated the husband as the boss directly. The husband’s conduct in his involvement in his apparel businesses in the PRC is substantive.

49.  With his reputation in the construction industry, the husband put great effort in liaising business with prestigious housing estate in Hong Kong. He testified he was responsible to look for suitable paint for repainting the outer wall of the entire estate, he was also involved in negotiating contracts of building maintenance.

50.  Apart from that, the husband had a company carrying on business on referral of overseas school placement. The wife’s sister was his client who has paid HK$60,000 referral fee to his company for her son’s school placement in Canada. The wife was told the husband owned 25% of the business and one Mr Yip owned the rest of it.

51.  Having said that, the wife’s case on non – disclosure on the husband’s involvement is too far fetch when only relying on some promotional brochures of a land development project in the PRC. The husband told the wife he has an interest on the project in a heated argument. The wife testified at that moment, the husband was drunk and the conversations might be unreal.

52.  During cross examination, the wife admitted she did not verify the authenticity of the husband’s business. She had no idea of the nature and the extent of the husband’s involvement. The wife has no idea what a managing director does. Her knowledge of such businesses were derived from the husband’s representation including the husband’s name cards. The husband had once explained to the wife the reason of being an employee of SD Limited was to facilitate him to apply for credit cards from various banks. In fact, the husband was not required to work on a daily basis. It was not surprising for the wife’s inability to answer questions asked by the husband’s counsel during cross examination that she had no knowledge on the legal documents of the business or the capacity of the husband. The wife, for most of the time as a housewife living in Hong Kong with two children, may not see it is necessary to inspect documents of the husband’s business and to verify his capacity.

53.  The husband’s evidence is not credible. He insisted earning a fixed income from SD Limited, a trading company carrying on business in the sale of apparel as well as property business, on the other hand, he adamantly said he has been working as a “sales and purchase commission broker” and a number of times during cross examination that he had income from rent of the Land. He stated in his answer filed on 27 March 2017 in response to the wife’s questionnaire, he had received commission from various companies from time to time from his brokerage trade. The discrepancy in source of income cannot be well explained by the husband, his income, be it a fixed salary or commission based are uncertain. The husband was inclined to hide from disclosing his real income throughout the years.

54.  The husband was evasive in answering questions in relation to his dealings with other companies, for instance, RXXXXXXX Limited in the PRC, he explained in an uncertain manner on the one hand he could receive commission on successful deals and he was at the same time a director / manager of the company on the other hand. Finally, he concluded he had nil income from this company.

55.  During cross examination, the husband testified his dealings with building maintenance projects. The husband denied he had involved in such projects save and except he has “assisted” his friend. I note husband’s evasive answers in clarifying whether he was involved in such projects.

56.  The husband blatantly denied his involvement in all other companies the wife is putting to him with his name printed on name cards with titles. He refused to accept he was ever paid by the companies on the services rendered.

57.  On this point, the only conclusion I can reach is that the husband has substantial involvement in both the apparel manufacturing and retailing in the PRC, building construction / maintenance business, school placement business in Hong Kong. I also accept the husband had carried out illegal or vice activities which he had income cannot be disclosed. I find the wife has sufficient grounds to say confidently the husband concealed his assets and has not disclosed his true financial position. The husband’s evidence on his employment with SD Limited did not reflect all fact because it is more likely than not the husband has other income from his agency, construction, land or even illegal businesses.   

Evidence on the family’s monthly expenses

58.  The husband’s act on non – disclosure is also well supported by the standard and lifestyle of the family. The husband said in his Form Es and in his affirmation that he has been a fixed income earner of HK$30,000 per month and rental income of the Land for another HK$30,000 to HK$40,000 per month. The gross family income would be at most HK$70,000 per month.

59.  However, the monthly expenses of the family were way beyond his affordability. The wife has received monthly maintenance until January 2016 around HK$130,000 (at time when the husband has left the matrimonial home); settling overseas school fees of the elder son at HK$40,000 until January 2016; rental payment of the former matrimonial home at HK$25,500 per month. Moreover, on Chinese New Year days, the wife recalled the husband would usually give her an extra HK$200,000 cash on top of regular household maintenance to spend on red packets and good food. The family had sumptuous feast with abalone and fish maw. Not to mention the alleged extravagant gifts given to his wife and children, the husband should be unable to satisfy the monthly expenses with his modest income.

60.  The husband agreed he had branded private vehicle to use, including a Mercedes Benz and a Cayenne Porsche. After the wife learned the existence of the husband’s mistress, she discovered on Facebook photos of the mistress showing off with expensive in-house dining food in hotel room and gifts sent to her by the husband, including a bunch of origami roses made of HK$1000 note.

61.  It is even more telling when the husband deposed in his narrative affirmation he had borrowed HK$3 million from his friends to fund his legal team in defending himself in the criminal trial. Without identifying the borrower and repayment terms, it is more probable than not the sum was in fact the husband’s own money. The legal costs of the husband was alarmingly high when he said he has paid over HK1 million to brief senior and junior counsel in applying for bail in 2014. When the husband was facing with serious charges of “money laundering” over HK$10 million and imprisonment term is inevitable upon conviction. The lender of HK$3 million would have assumed a high risk of not being repaid by the husband should he been convicted. Comparing the mode of the husband’s business in Hong Kong and the PRC, as a businessman or person which could obtain moneys from illegal means, the husband should be at ease in paying HK$3 million for his legal fees. The explanation of advancing the said sum from his friend(s) was camouflaging his size of the value of his real assets.

62.  The wife believed the husband had means to obtain huge amount of money from the illegal activities and that explains why the husband paid her cash as living expenses, travelling expenses most of the time. Looking at the lifestyle the wife has said and without much being challenged by the husband, it is an obvious case the husband has concealed his real income.

Evidence on undisclosed bank accounts and credit cards

63.  The wife submitted the husband failed to disclose his credit cards in both Form Es. The husband stated he has a total of 3 credit cards issued by Citibank, namely two Citibank Rewards Card (ending 6541 & ending 8743) and one Octopus Citibank Platinum Card (ending 7755). The wife later discovered he has successfully applied for and has been using another 4 credit cards from Citibank. During cross examination, the husband was uncertain of the credit cards discovered, he tried to make it through by saying the new cards are replacement of lost cards. The husband’s evidence is too obvious to be incredible because he has mixed up the time when the credit cards were lost.

64.  The husband is also being alleged of hiding bank accounts with Construction Bank in PRC which he had not stated in any of his Form Es. In response to the wife’s 1^st questionnaire in November 2016, he had only disclosed one Construction Bank account with the PRC (ending 9553) without transactions in the past 2 years. The wife further listed in paragraph 9 of her 2^nd questionnaire filed on 26 January 2016 the bank accounts that the husband has not disclosed. The husband answered on 27 March 2017 that he is in the progress of retrieving the statements. Neither had he disclosed them or to have updated the said bank accounts in his 3^rd Form E filed on 29 June 2016. During cross examination, the husband attempted to make it through by saying one of the account listed above was belonged to his mother.

65.  The husband even admitted during cross examination he had put in fictitious figures in his Form Es. I see this answer concluded the husband’s intention in the entire ancillary relief proceedings. He designed what to disclose and what not to and having done so he had abused the system of discovery in a contumelious manner which the court has no real figures to rely on in quantifying the real worth of his assets.  

Evidence on the real income of the Land

66.  To take the point of non – disclosure further, the wife reckoned the monthly rental income of HK$30,000 is untrue by criticizing the falsity of the lease of the Land by comparing two tenancy agreements disclosed by the disclosed by (i) the husband in his Answer to the wife’s questionnaire filed on 27 March 2017[3] and (ii) one from a letter written by his instructing solicitors to the wife on 12 July 2019. The first tenancy agreement was dated 15 November 2016, the husband leased the Land to HXXXXXX Property Management Limited at a monthly rent of HK$30,000 from 15 November 2016 until 14 November 2021. The 2^nd tenancy was undated to have commenced from 1 May 2019 until 30 April 2019 at a monthly rent of HK$30,000. The husband explained he had asked his sister to handle the tenancy matter of the Land whilst he was in custody. He was told by his sister the need to look for another tenant when the original one had defaulted in paying rent. I fail to see this could sensibly explain the situation.

67.  The wife further argued both rental income may not reflect the true income derived from the Land.  On recommendation of the valuation report that the rental value of each carpark space is approximately HK$2,600 per month, the possible income of the Land with 32 carparks can be as high as (HK$2,600 x 32) HK$83,200 per month. I find both tenancy agreement(s) are disguise to the real income of the Land.

Evidence on the husband’s English name and his residential address

68.  The wife believed the husband has been toning down his influence as an important figure of triad society and hiding his real place of residence.

69.  I agree with the wife when the husband denied his English name was “BXXXX HXXX” when it appeared in most of his namecards.

70.  The wife further criticized the husband did not disclose frankly his residential address since the commencement of this suit by using different addresses:

(i)     the husband stated in his Form Es an address in Aberdeen however he conceded he had never resided in the address when it was the residential address of his ex-wife of his 1^st marriage. It was intended to be a correspondence address only;

(ii)    he added the address he used in the tenancy agreements of the Land in Tai Po was also his correspondence address, he had never lived there;

(iii)   he once used his friend’s address in Huizhou, PRC in his affirmation on bail application filed on 25 August 2014[4]; and 

(iv)   he portrayed himself as a person without permanent place of residence and sometimes he will stay in massage parlour.

71.  The husband is also reluctant to answer fully of his ex-marital relationship with his mistress who had given birth to a daughter in August 2016. Since 2015, both of them were living in a rented premise Fotain, Shenzhen. He was responsible to pay the rent at the beginning but was unable to meet the sum after he was charged. The husband refused to answer continuously during cross examination on his relationship with his mistress but had finally admitted he had transferred money to her as living expenses.

Conclusion on non-disclosure & identification of family asset

72.  It is evident that the husband has not much to disclose in terms of financial status as compared to his happenings including his criminal convictions of “money laundering”. Apparently from the evidence, the lifestyle of himself, the wife and the children do not match with the income and assets of the husband. In light of the foregoing, the husband was in overt breach of disclosing his true financial positon and the size of matrimonial asset and I am bound to draw adverse inference against him. 

73.  I find the husband is not a fixed income earner prior to his unemployment since 31 December 2015, this must be correct because he had mixed up the date of losing his job in his Form Es, his Answers and his affirmation. I am satisfied the inference has been properly drawn and reasonable to the extent that the husband had in his possession substantive asset, in both Hong Kong and the PRC.

74.  The husband, on the other hand, claimed in his updated Form E his monthly expenses of HK$81,867. I reject this is a real sum when comparing the sum to his extravagant lifestyle. This sum is too modest and unreal when the husband was able to purchase Cayenne Porsche, Cartier watch, 2-carat sized diamond ring, branded handbags for the wife and employing a chauffeur for himself. The wife once testified the husband funded her to purchase high end apparel for him and to fly business class on vacations. The evidence on his expenditures spent on his mistress is worth noting. Be it the husband strenuously denied he had been doing so, the pictures uploaded by the husband’s mistress were too telling on how solvent the husband had been.

75.  The husband’s scale of business in PRC is huge, I have no doubt to conclude he has hidden funds. I then should quantify realistically and reasonably, also in broadest terms, the value of the matrimonial asset and the true financial position of the husband.  In absence of direct evidence to assess the value of the matrimonial asset and the true financial position of the husband, I rely on the scale of business he has been doing, his status in the PRC, the extravagant lifestyle that the family had enjoyed. I pay attention particularly to his ability to raise HK$3 million loan on legal costs in defending himself in the criminal trial. The husband is convicted of the charge of “money laundering” for a sum over HK10 million.

76.  To safeguard and to ensure a non-discloser should not be able to procure a result from his non-disclosure better than that which would be ordered if the truth was told. I am allowed to err on the overestimation, if any, on his true financial status than to allow him to benefit from his act. Although there are difficulties in assessing the size of the matrimonial property in exact monetary terms, I am comfortable to estimate in broadest terms the husband should have assets at least worth HK$30 million.  

Step 2: assessing parties’ financial needs: the wife, the husband and the children

The wife’s needs

77.  The wife furnished her 1^st Form E on 31 December 2015, in that she stated she has only HK$24,696 cash left in her bank, cash value of HK67,685 from her insurance policies and liabilities of HK$158,595.95 being 3 months’ outstanding rent, two credit cards debit and loan from her friend. She maintained a monthly expenses of herself and both children of the family at HK$114,253.

78.  The wife updated her Form E on 10 December 2016. Her cash at bank dropped to HK$12,652.61 with stock value at HK$4,560. Her insurance cash value maintained the same as the last Form E. The wife computed her current monthly expenses at HK$85,960. 

79.  Unfortunately, the elder son developed drastic worsening of vision in his right eye since April 2016 due to extreme pressure from study and family pressure. He was in need of treatment from specialist of an estimated cost of HK$50,000 and at least one HK$2,800 treatment every two weeks.  The wife filed her 5^th affirmation on 9 March 2017 to state in detail the needs of the elder son. The tuition fees, accommodation fees and daily expenses of the elder son in Australia for the 1^st year of university was HK$205,883, HK$90,236 per month staring from fall 2017, due to insufficient resources, the wife asked her sister, her brother and her friend (Ms W) to paid for her in advance. The husband agreed to sell his Porsche to satisfy such expenses.

80.  The wife’s last updated Form E was filed on 3 July 2018. Her liabilities mainly with additional personal loans to HK$1,370,117. The wife has no income, no assets, not only kept borrowing money, she sold all her branded handbags and jewellery to maintain herself and the children in the past few years with a sum of HK$1,646,446.17 liabilities incurred.

81.  The wife updated her expenses in her 6^th affirmation filed on 13 July 2018 with the following tables. At that time, the wife and the younger daughter were still in Hong Kong:

For household expenses

Item	Amount (HKD)
Rent	---
Mortgage instalments	---
Utilities (electricity, gas, rates, water and telephone)	$1,200
Management fees	---
Food	$8,500
Household expenses	$3,200
Car expenses	$8,500
Insurance premia	---
Domestic helper	---
Others (please specify)	---
TOTAL MONTHLY EXPENSES	$21,400

For the wife

Item	Amount (HKD)
Meals out of home	$2,000
Transport	$500
Clothing / shoes	$1,500
Personal grooming (including haircut and cosmetics)	$1,100
Entertainment / presents	$2,200
Holiday	---
Medical / dental (including Chinese medicine)	$5,000
Tax	---
Insurance premia	$1,300
Interim maintenance	---
Contribution to parents	---
Dependent family members	---
Others (please specify)	---
TOTAL MONTHLY EXPENSES	$13,600

For the children

Item	Elder son (HKD)	Younger daughter (HKD)
School fees	$20,000	---
Extra tuition fees (exam tuition fees)	---	$3,850
School books and stationery	$500	$350
Transport to school (including school bus)	$1,000	$1,900
Medical / dental	$300	$250
Extra curriculum activities	---	$3,200
Entertainment / presents	$1,000	$1,000
Holidays	---	---
Clothing / shoes	$1,000	$2,000
Insurance premia	$1,000	$620
Lunches / pocket money	$6,000	$1,370
Other transport	$500	---
Child minding fees	---	---
Uniform	---	$550
Others: -         Haircut -         Accommodation -         Examination fees -         Visa & airfare to Hong Kong	$430 $7,700 --- $2,200	$420 --- $420 ---
TOTAL MONTHLY EXPENSES	$41,630	$15,930

82.  Prior to removal of the younger daughter, the aggregate expenses of the wife and both children in sum of (HK$21,400 + HK$13,600 + HK$41,630 + HK$15,930) HK$92,560. The wife further estimated the school fees and living expenses for both the children will be around HK$4 million for the elder son and the younger daughter.

83.  The wife updated her needs when she and the younger daughter joined the elder son in Australia. At a glance, the wife is seeking:

(i) To purchase a property in Australia	HK$5,370,000
(ii) Renovation & furniture	HK$500,000
(iii) To purchase vehicle	HK$250,209
(iv) Elder son medical expenses	HK$50,000
	HK$6,170,209
(v) Plus monthly maintenance	HK$111,676.50

84.  The breakdown of the wife and the children’s monthly maintenance is as follows:

For household expenses

Item	Monthly amount (HKD)
Vehicle expenses & insurance	$5,660
Utilities	$5,000
Food and household	$15,000
Holiday	$12,500
Insurance	$3,000
Medical expenses	$3,000
TOTAL	$44,160
Share of each	$14,720

For the wife

Personal expenses – wife	$15,000
English tuition lessons – wife	$2,000
Insurance – wife	$3,000
Medication – wife	$1,400
TOTAL	$21,400

For the elder son

School fees - elder son	$19,166
Living expenses -  elder son	$3,000
Book fees – elder son	$600
Flight tickets – elder son	$833
TOTAL	$23,599

For the younger daughter

School fees – younger daughter	$16,200
Tuition fees – younger daughter	$1,984.50
Living expenses – younger daughter	$3,000
Book fees – younger daughter	$500
Flight tickets -  younger daughter	$833
TOTAL	$22,517.50

HK$44,160 + HK$21,400 + HK$23,599 + HK$22,517.50 = HK$111,676.50

The husband’s needs

85.  The husband filed his 1^st Form E on 27 May 2016. He stated he has no income at that time because he has left his job with his previous company. SD Limited with a monthly salary at HK$30,000 on 31 December 2015. He lived in a flat in Tin Wan with his ex-wife and two children from their former marriage. He has HK$1,607 cash left in his bank and MPF valued at HK$375,788.63. He has no assets, insurance policies except a Porsche Cayenne valued at HK$700,000 (with HK$430,000 mortgage) and the Land with a rental income of HK$40,000. He has HK$1,221 outstanding credit card debt. The husband stated he was the director of a company known as GXXXXX FXXXXXXXXXX Limited (“GF Limited”). Having said that, he maintained a monthly expenses at HK$51,299.17.

86.  The husband then filed his updated Form E on 8 December 2016. He maintained unemployed for the period with same MPF value. He was living at the same residence with his ex-wife. He updated the GF Limited valued at HK$400,000 and two insurance policies with Cigna and AIA of an unknown cash value. He stated he has a 2.04 carat diamond ring and a gold Rolex which has both left in the former matrimonial home. The husband has HK$3,234.307.51 debt including outstanding MPF payments, credit card debts and most significantly HK$3,011,000 personal loan from a friend paid as legal fees to defend his criminal charges.

87.  The husband filed his 3^rd Form E on 29 June 2018 with most of the items remained the same.

88.  The husband stated his updated Form E of the following monthly expenses:

For household expenses

Item	Amount
Rent	$5,000
Mortgage instalments	---
Utilities (electricity, gas, rates, water and telephone)	$1,000
Management fees	---
Food	---
Household expenses	$500
Car expenses	$17,867
Insurance premia	---
Domestic helper	---
Others (please specify)	---
TOTAL MONTHLY EXPENSES	$24,367

For the husband

Item	Amount
Meals out of home	$3,000
Transport	$1,000
Clothing / shoes	$2,000
Personal grooming (including haircut and cosmetics)	$1,000
Entertainment / presents	$500
Holiday	$500
Medical / dental (including Chinese medicine)	$500
Tax	---
Insurance premia	$3,000
Interim maintenance	$33,000
Contribution to parents	$5,000
Dependent family members	---
Others (maintenance for FCMC 6027 of 1999 for former spouse)	$8,000
TOTAL MONTHLY EXPENSES	$57,500

89.  The husband stated an aggregate of (HK$24,367 + HK$57,500) HK$81,867 as his monthly expenses.

My view on the needs

The wife and the children

90.  The needs of the wife and children in both Hong Kong was not challenged by the husband and in which I accept, the standard and lifestyle of the family during marriage he has paid the wife more or less around HK$100,000 to HK$130,000 per month as living expenses during the marriage. The family usually flew business class during vacation. The wife was provided with private cars to use and credit cards to spend on luxurious items for the family.

91.  The husband however challenged the wife should have some earning capacity and should have obtained some gainful employment when both children require no close attention. I am given to understand and I accept the background of the wife, she is 43 years old at trial who has attained HKCEE level without a pass in English. She had working experience as a saleslady of high end apparel and some experience in retail business. Since February 2014, the wife has been suffering from neurasthenia followed by Urticaria (red rash and itchy skin) in late 2017. The wife’s condition stabilized after she took Chinese herbal medication by a Chinese herbalist in Beijing.  I do not see the medical condition of the wife has impaired her in the labour market but without marketable skills and on the strength of a student guardian visa, she may not be able to take up any gainful employment now. It is a good for the wife gain proficiency in English by attending English classes but at this stage, I agree her earning capacity is limited.

92.  Having considered the change of circumstance after conclusion of evidence, that the wife has removed the younger daughter to Australia, it is proper to say the needs of the wife of herself and both children to be that of establishing a home there including an accommodation, funds to maintain all three of them, funds to pay off the school fees of both the elder son and the younger daughter until they attained 18 years of age or had finished full day education. 

93.  The husband challenged the necessity of purchasing a property in Australia and a vehicle for the wife. He said it would be sufficient if they could live in a rented premise. For reason that I have accepted the wife has limited earning capacity in Australia, I see it is appropriate for her to establish a permanent place of residence by purchasing a property for all three of them. It would also be necessary for her to purchase a vehicle. The husband did not suggest the value of both the property and vehicle should I found the wife is entitled to purchase, I accept the wife’s evidence on purchasing a property for accommodation, furniture and vehicle. On this item, I agree HK$6,170,209 is appropriate.

94.  With regard to the wife, she explained and without challenge on the part of the husband, I accept her monthly expenses will be (HK$14,720 + HK$21,400) HK$36,120.

95.  With regard to the elder son, the wife explained, which I accept, the elder son will proceed to 2 years’ Master degree and 3 years’ accountancy training. He is expected to complete the above by 2023. I accept his monthly expenses will be (HK$14,720 + HK23,599) HK38,319.

96.  With regard to the younger daughter, wife counted she will have 7 years’ of education before she graduates in a tertiary institution, she estimated the younger daughter’s maintenance, her monthly maintenance is therefore (HK$14,720 + HK22,517.50) HK$37,237.50.

97.  As seen from the past record of the husband, it is unlikely he would pay her on time, I prefer to capitalize maintenance of all 3 of them in form a lump sum. I take into account the elder son is able to all his tertiary education with professional exams, he should be able to support himself, the younger daughter (his sister) and the wife (the mother). The quantification is as follows:

(i)     the wife should be allowed to be maintained for a period of 7 years. I expect she should have some English proficiency after attending English classes and by then she may be able to obtain a working visa of some kind. I also expect the younger daughter no longer needs the wife’s special attention by that time. The wife’s aggregate maintenance should be (HK$36,120 x 12 months x 7 years) HK$3,034,080.

(ii)    The elder son’s maintenance should be quantified as (HK$38,319 x 12 months x 3 years) HK$1,379,484.

(iii)   The younger daughter should enjoy maintenance for a longer period of time, the wife said it is expected for another 7 years until graduation. The younger daughter’s aggregate maintenance should be (HK37,237.50 x 12 months x 7 years) HK3,127,950.

98.  I accept the wife has her needs to meet daily expenses and to pay off loans from friends since the husband has left the matrimonial home permanently. The wife deposed she has incurred personal loans in sum of HK$1.37 million in her updated Form E filed on 3 July 2018 and then elevated to HK$1,646,446.17. I take the wife has to borrow from friends and relatives continuously since the date of trial, I estimate she has to borrow an extra sum of HK$90,000 per month from the date of trial until date of handing down this judgment (January 2019 – June 2020, 20 months). Her total liability should be (HK$1,646,446.17 + HK$1.8m) = HK$3,466,466.17.

99.  To conclude, the needs of the wife and the children should be  quantified as follows:

(i)     Accommodation, vehicle & furniture	HK$6,170,209
(ii)    Wife’s maintenance	HK$3,034,080
(iii)   Elder son maintenance	HK$1,379,484
(iv)   Younger daughter maintenance	HK$3,127,950
(v)    To repay loans	HK$3,466,466.17
	HK$17,178,189.17

The husband

100.  The husband is 55 years old. He was educated up to Form 5 level. He claimed to work for a construction company with a salary of HK$30,000 until the end of 2015. Prior to that, the husband had worked in the mobile phone retail industry for more than a decade. At time of trial, he was convicted and has been serving a sentence term of 3 years and 9 months with an expected date of release in June 2021. The husband testified he would not have the same earning capacity as before but I see from his past lifestyle as an influential figure in the business field, I find he should have more or less same earning capacity after his release from imprisonment.

101.  The needs of the husband would be those of his daily expenses including his daily expenses, monthly maintenance to his former wife, his partner and his new born daughter in Fotian, Shenzhen. The husband said he incurred HK$81,867 as his monthly living expenses. I doubt this is the true figure when he has provided with the wife a lucrative sum of HK$100,000 – HK$130,000 per month to use. I find his monthly expense at a sum far more than HK$81,867. Again, I take into account the wife and the children are in Australia, I rely on the lifestyle of the husband and in a conservative manner, his monthly expense should be no less than HK$100,000 per month and the which the sum will likely consume the rest of the matrimonial asset in less than 10 years.  

Step 3: deciding to apply the sharing principle

102.  The sharing principle come into place when there are surplus to satisfy the needs of both parties and children of the family. The said principle is operated by equal division of family asset for long marriage unless there are good reasons to depart from it.

103.  I estimated the aggregate matrimonial asset being HK$30 million above; the wife and the children’s needs at HK$17,178,189.17. The remaining would be (HK$30 m - HK$17,178,189.17) HK12,821,810.83. Although I am unable to quantify the husband’s needs but at least I am confident it would not exceed HK12,821,810.83.  

Step 4: whether there are good reasons to depart from equality principle

104.  This is a difficult question when the surplus to satisfy all needs is unable to be quantified. On my finding, the wife does have lower earning capacity than the husband. She is now staying in Australia without a working visa. The husband, on the other hand, would be able to continued his business, not only be able to earn a living but also be able to accumulate wealth. In principle, and if there is surplus, for disparity of their level of earning capacity is a good reason to depart from equality principle and the wife should have a larger share in division of matrimonial assets. Nevertheless, as I have mentioned the surplus unascertainable, equal division of asset may not be viable.

Step 5: deciding on the overall outcome

105.  Having canvassed the recent development that the wife and the younger daughter have joined the elder son in Australia already. I see a fair outcome of the ancillary relief would be an order to satisfy all needs of the family. I see it is a better for the wife to have HK$17,178,189.17 lump sum as clean break. I have drawn adverse inference against him with a finding of hidden assets, I am satisfied the husband should have sufficient resources to pay the wife and failing which, pursuant to section 6 of the MPPO, the husband shall transfer the Land to the wife, which its value is able to satisfy the wife and the children’s needs. 

The husband’s application for variation of MPS

106.  The husband applied for variation of MPS to nil on grounds of unemployment, upon determination of the ancillary relief between the parties, the husband’s application on variation of MPS is unnecessary.  To complete the picture, I find the husband has not disclosed his true financial position and the said application is bound to be dismissed.

107.  To avoid double counting, the outstanding sum of MPS due and owing to the wife shall be discharged because I have included it in the wife’s borrowings from family and friends to maintain herself and the children above.

Orders

108.  I make the following orders:

(i) The husband’s (the respondent’s) summons filed on 28 October 2016 on variation of MPS be dismissed.

(ii) A costs order nisi that the husband’s (the respondent’s) do pay cost the said summons to the wife’s (the petitioner’s), to be taxed if not agreed.

(iii) The wife’s (the petitioner’s) is at liberty to restore her judgment summons filed on 8 September 2016 before the Practice Judge in the Family Court with a date to be fixed.

(iv) Subject to the first charge of the Director of Legal Aid, the husband (the respondent) do pay the wife (the petitioner) a lump sum of HK$12,607,755.17[5] being maintenance of the wife (the petitioner) within 1 month from the grant of decree absolute.

(v) Subject to the first charge of the Director of Legal Aid, the husband (the respondent) do pay the wife (the petitioner) a lump sum of HK$1,379,484 being maintenance of the elder son within 1 month from the grant of decree absolute.

(vi) Subject to the first charge of the Director of Legal Aid, the husband (the respondent) do pay the wife (the petitioner) a lump sum of HK$3,127,950 being maintenance of the younger daughter within 1 month from the grant of decree absolute.

(vii) Failing compliance of all or any of paragraphs (iv), (v) or (vi) above, subject to the first charge of the Director of  Legal Aid, the husband (the respondent) shall transfer all the title and interest of the property, namely the Land in his name to the name of the wife (the petitioner) at nil consideration; the fees, including taxes, for the property transfer concerned are to be paid by the husband (the respondent) solely.

(viii) Penal notice be endorsed, personal service on the husband (the respondent) is required.

(ix) A costs order nisi that the husband (the respondent) do pay costs of the ancillary relief including all costs reserved to the wife (the petitioner), with certificate of counsel, to be taxed if not agreed.

(x) The wife’s (the petitioner’s) own costs be taxed in accordance with the Legal Aid Regulations.

(xi) Both costs orders nisi for both the husband’s (respondent’s) summons filed on 28 October 2016 and the matter of  ancillary relief shall be made absolute unless either party to vary by way of summons within 14 days from the date of handing down of this judgment.

(xii) Declaration pursuant to section 18 of the Matrimonial Proceedings and Properties Ordinance (Cap 192).