YUNG YUEN LING ALICE v. WONG MING KAN MICHAEL

HCA 231/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 231 OF 2004

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J U D G M E N T

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1.  In this matter there are four summonses before me, one of the plaintiff and three of the defendant.  That of the plaintiff seeks that payments made out of assets subject to a Mareva injunction be varied, in an unspecified manner, or dispensed with whilst one of the summonses of the defendant seeks that the Mareva injunction be discharged.  The remaining two summonses of the defendant relate to the payment to the Director of Legal Aid, out of the affected assets, of costs which the defendant was ordered to pay and to discovery.

2.  After discussions between counsel it has been agreed that the two summonses relating to the discharge or variation of the Mareva injection be adjourned.  It is plainly necessary for an updated assessment of the plaintiff’s medical state to be available should those summons proceed.  However, for the reasons which I indicated clearly earlier today, it is to be hoped that further proceedings, with the inevitable result of diminution of the assets subject to the injunction which would only be to the detriment of both parties, will prove to be unnecessary.

3.  The order that I make in respect of those two summonses is that they be adjourned to 2 February 2007 at 10.00.  Costs are reserved.

4.  In respect of the defendant’s summons dated 30 November 2005 relating to discovery, I have heard argument today but, after discussions with counsel, will only deliver my ruling on 1 December 2006 at 09.30 and then only if it be necessary to do so.  Attendance of counsel is dispensed with.

5.  That leaves only the defendant’s costs summons.  This summons, dated 3 January 2006, seeks leave for costs in the amount of $360,000.00 to be paid from moneys which are subject to the Mareva injunction.  The costs are the party and party costs payable by the defendant to the Director of Legal Aid as taxed on 13 December 2005 and which relate to the Order 14 proceedings instituted by the plaintiff.

6.  In his affirmation of 11 October 2006 the plaintiff’s representative accepts that this sum should be paid by the defendant to the Director of Legal Aid.  However he indicated he does not “agree” that the money should be paid from the funds subject to the Mareva injunction

“... until and unless the defendant has produced convincing evidence that he has no assets to make the payment.”

7.  On another topic, that of ancillary relief in the divorce proceedings, the plaintiff’s representative says

“I wish to point out that apart from repeated assertions of the defendant that he had no other asset, there is no satisfactory evidence to support such claim”.

The defendant has stated on more than one occasion in affirmations that he is not possessed of any assets, other than an insurance policy, which are not subject to the Mareva injunction.

8.  No sensible suggestion has been put forward as to how, other than by way of asserting the fact in an affirmation, the defendant is expected to “prove” the non-existence of assets – even if there were any onus on him to do so. 

9.  Throughout the proceedings, including those relating to the Mareva injunction, the plaintiff has not pointed to any other assets which she is able to assert were the property of the defendant.  At best there appears the veiled comment in her first affirmation that the defendant was secretive about his assets together with a reference to the IMF Trust:  it is plain that the entire capital of the IMF Trust was distributed to the plaintiff and the defendant.  There were passing references to the wealth of the defendant’s late father: there is not so much as an assertion, let alone evidence, that the defendant was to benefit in some further way from his father’s estate.

10.  The overwhelming probabilities are that in the ancillary relief proceedings in the Family Court some portion of the assets subject to the Mareva injunction will be ordered to be paid to the defendant.  I will deal with that in more detail in due course if it prove necessary.  However, simple commonsense dictates that such amount will be in excess of the amount due to the Director of Legal Aid.

11.  It is plainly in the plaintiff’s own interests that the costs be paid so soon as possible as this will then allow the release to her of any security held by the Director.

12.  There will be an order in terms of paragraph 1, save that the amount be $360,500.00.  The plaintiff is to pay the defendant’s costs as taxed or agreed.