CHWS v. LNLAI

FCJA 3385 /2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

JOINT APPLICATION NO. 3385 OF 2013

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D E C I S I O N
(Filing of Summons dated 7 January 2016)

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Background

1. The 1^st Applicant is the Husband.  The 2^nd Applicant is the Wife.

2. The Joint Application for divorce was filed in October 2013.  Decree Nisi was granted in December 2013 and the question of ancillary reliefs has yet to be resolved through Financial Dispute Resolution (“FDR”) or the trial proper. 

3. The FDR was initially scheduled for 18 September 2015.  Three days before the FDR hearing, the Wife made a request to file her 3^rd Questionnaire.  Having heard submissions, this Court rescheduled the FDR to 29 December 2015.  The Court then directed that all interlocutory applications must be taken out within 14 days, that is to say, on or before 2 October 2015. 

4. On 9 October 2015, the Wife issued and filed a Summons (“October Summons”) returnable on 29 December 2015, which is the same date of the FDR fixed earlier but this Summons was scheduled to be heard before the FDR hearing.  This Summons was, however, dated 2 October 2015.  The contents of the October Summons are as follows :

“1. The 2^nd Applicant do issue an application, to file the Third Questionnaire (a copy of which is attached) for the 1^st Applicant to Answer, within 14 days from the date of the Hearing, i.e. on or before 2 October 2015;

2. Costs be reserved.

The 1^st Applicant is requested to consider the Third Questionnaire filed and served pursuant to Paragraph 1 above within 14 days from today, i.e. on or before 16 October 2015; and to file and swerve his Answers within 28 days thereafter, i.e. on or before 13 November 2015.”

5. Although the October Summons referred to a copy of the Third Questionnaire being attached thereto, it was noted that the Wife had already ‘filed’ the Third Questionnaire as a separate document without leave 7 days ago on 2 October 2015. 

6. At the hearing on 29 December 2015, Miss Elsie Liu, Solicitor for the Husband, confirmed the Husband was willing and would provide Answers to the Wife’s Third Questionnaire within 14 days, that is, before 12 January 2016, save and except Questions 19, 20 and 22 therein.  In view of the fact that the Third Questionnaire had already been ‘filed’, retrospective leave for the ‘filing’ was granted by this Court.  The Husband was ordered to file and serve his Answers within 14 days save and except questions 19, 20 and 22 to be adjourned for further disposal on 6 January 2016 at 2:30 p.m. with 1 hour reserved.

7. On 6 January 2016, the Wife did not show up at the scheduled time of 2:30 p.m. According to the audio records, this Court rose at 2:42 p.m. when Counsel Mr. Jeremy Chan for the Husband was informed that the Wife had notified the Court that she was on the way and was somewhere in Garden Road.  At 2:43 p.m., Mr. Chan agreed to stand down the matter for 10 mins.  At 2:56 p.m., this Court rose again when the Wife had not yet appeared in Court.  At 2:57 p.m., this Court said :-

“…the 3 Questions which was adjourned for further argument this afternoon, because of the 2^nd Applicant not turning up on time and now is already 3 o’clock, 30 minutes late, so I need to dismiss those 3 Questions    and …. (deal with costs matter)”

8. There is a record in the file that the Wife appeared at the Court room around 3:10 p.m. after the hearing was finished and the order made. There is also a small bundle marked “The Wife’s Supplemental Notes for the Hearing on 6^th January 2016 at 2:30 p.m.” in the Court file.

9. On 7 January 2016 (that is, the following day), the Wife issued the present Summons (“January Summons”) returnable on 22 February 2016, contents of which are as follows :

“1. Question 19, 20 and 22 in the Wife’s Third Questionnaire filed in the Court on 2 October 2015 to be answered full and frank by the Husband

I would like to apologize to this Honourable Court, the Husband and his lawyers for the inconvenience caused due to my tardiness for the Hearing on 6^th January 2016 at 2:30 p.m. which was scheduled to deal with the same issue in paragraph 1.

I will undertake all costs incurred in the Hearing on 6^th January 2016 at 2:30 p.m. ”

10. At the hearing on 1 February 2016, which was the date fixed earlier for conducting the 2^nd FDR, the Wife was again late for about 30 minutes.  Prior to the commencement of this 2^nd FDR hearing, the Court noticed from the file that there was the Wife’s “January Summons” scheduled for a 15-minute call over hearing on 22 February 2016 (which is 3 weeks ahead). Spending about the rest of the afternoon to clarify with the Wife’s on procedural matters, the Court decided to vacate the 22 February 2016 call over hearing and fixed 12 April 2016 at 2:30 p.m. for substantive argument with half day reserved.  Directions were also given for the exchange of Affirmations by the parties.  The FDR was then re-fixed to 4 May 2016 at 2:30 p.m. with half day reserved.

The Husband’s Opposition

11. The Husband’s opposition consists of a 2-fold contention.  First and as a preliminary point of submission, the Wife’s January Summons was an illegitimate attempt at re-litigation of an issue which was rendered Res Judicate/Issue Estoppel for the fact that there was the Order dated 6 January 2016 dismissing such issue.  Moreover, the January Summons was issued out of the time limit permitted by the Court for talking out interlocutory applications and without leave.  Secondly and as a further submission made Ex Abundanti Cautela, the contents of the disclosure sought under each of the questions 19, 20 and 22 are disproportionate and/or excessive, if not being an abuse of the Court process.

12. Mr. Jeremy Chan, Counsel for the Husband, in his Written Skeleton Submissions referred to the case of Nayif v. High Commission of Brunei [2014] EWCA Civ 1521 where the English Court of Appeal provided an overview of the law on ‘res judicata’ and ‘issue estoppel’ with reference to the English Supreme Court decision in Virgin Atlantic Airways v. Zodiac Seats UK [2014] AC 160.  Citing SCF Finance Co. Ltd v. Masri (No.3) [1987] 1 All ER 194 where it was held that an order dismissing proceedings is capable of giving rise to issue estoppel even though the court making such order has not heard argument or evidence directed on the merits.  Further, reference was also made to the case of Staffordshore BC v. Barber [1996] ICR 379 where the applicant in that case was precluded from pursuing a dismissed claim on the ground of Res judicata, for both cause of action estoppel and issue estoppel.

13. Pursuant to this Court’s directions, the Husband filed his 48-page Affirmation on 1 March 2016 along with 18 exhibits (“Husband’s Affirmation”) in opposition setting out the development since the FDR was first scheduled for 18 September 2015 with reference to his 2 answers already provided to the Wife’s 1^st and 2^nd Questionnaires respectively.

14. The Husband’s position is that extensive answers had already been provided in his 109-page 1^st answer filed on 11 December 2014 (with 31 annexures) and his 212-page 2^nd answer filed on 4 May 2015 (with 161 annexures).  Lately, he also provided his 69-page 3^rd answer (with 10 annexures) on 12 January 2016 to the Wife’s Third Questionnaire save and except the 3 questions of 19, 20 and 22.

The Wife’s Contention

15. The Wife, acting in person, filed her written Skeleton Submissions only on the date of the hearing.  She submitted that there was no Res Judicata/Issue Estoppel in her case.  On 6 January 2016 around the scheduled time of 2:30 p.m., she did notify the Court that she was on her way to the Court.  Over the phone, she made clear that she was somewhere around Garden Road but unfortunately she only managed to arrive at the Court room around 3:10 p.m.  She further accounted for the lateness was because on that day upon arrival at the Court building, she first went to the Registry for filing her a small bundle of papers intended to be used at the hearing.  She admitted that with hindsight she should have come to the Court room first.  She had never abandoned her request for filing the 3 questions of 19, 20 and 22.

16. In answer to the Husband’s contention that the January Summons was issued out of the time limit prescribed by the Court on 18 September 2015 for taking out interlocutory application and without leave, the Wife made a fine and narrow point over the wordings of the perfected Order dated 6 January 2016 which provides “The Second Applicant’s Summons filed on 2 October 2015 for leave to file Questions 19, 20 and 22 of her 3^rd Questionnaire be dismissed”.  However, upon checking the audio record on that date, what was actually said by the Court was “…the three questions which was adjourned for argument this afternoon … need to dismiss those three questions.”  Then the Wife submitted that the January Summons was not caught by the time limited under the Order dated 18 September 2015 but she agreed that her Summons dated 2 October 2016 was. 

17. At paragraph 7 of the Wife’s Written Skeleton Submissions, she submitted the January Summons was filed as per Order 32 rule 5 (4) of the Rules of the High Court, Cap.4A, which provides for the restoration of a summons which was dismissed without a hearing.

18. Pursuant to this Court’s directions, the Wife filed her 14-page supplemental Affirmation dated 15 February 2016 along with 25 exhibits, also her Affirmation in reply dated 14 March 2016 along with 2 exhibits. 

19. The Wife’s position is simply that the Husband was not only short of full and frank in his financial information and had, allegedly, made use of his director’s loan account with the company S Holdings Limited (“SHL”) as a ‘hiding area’ for his assets.  The Wife claimed that the Husband only produced years of balance sheets of his director’s loan account with SHL but without any further categorisation and verifying supporting documents on the items in the balance sheets, this would not reveal the true picture of his financial status.

The 3 Questions to be determined

20. I will approach the Wife’s application by posing the following 3 questions.

21. First, whether the principle of Res Judicata/Issue Estoppel applies for the fact of the dismissal order granted on 6 January 2016 so that the Wife should not be allowed to raise questions 19, 20 and 22 ?  If so, her application fails.

22. Secondly, if such doctrine does not apply, whether the Husband had already provided sufficient answers to the Wife’s 1^st and 2^nd Questionnaire to the extent that he has fulfilled and discharged his duty of financial disclosure. 

23. Thirdly, if the Husband had not provided answers or sufficient answers to the Wife’s 1^st and 2^nd Questionnaires, would leave be granted to the Wife to raise her further questions 19, 20 and 22 in the Third Questionnaire within the ambits and parameters of financial disclosure and discovery under accepted legal principles.    

The Court’s Views

(a) Res Judicata/Issue Estoppel

24. It is common ground that the Order dated 6 January 2016 on dismissal was granted in the Wife’s absence at a hearing scheduled for substantive argument as to the filing of questions 19, 20 and 22 set out in the

Wife Third Questionnaire, in respect of which retrospective leave for filing the other questions had already been granted.

25. In my view, the central issue is whether the dismissal was granted by the Court upon the abandonment or withdrawal of a cause of action or an assertion of right by the Wife; or was it a dismissal merely because of the absence of the Wife whereby the Court could do so on the so called ‘want of prosecution’ ground.  The Court must consider the background leading to the dismissal when deciding whether the principle of Res Judicata/Issue Estoppel is applicable.  The cases and authorities produced by the Husband’s Counsel (supra) supported the former scenario and in appropriate cases, even without hearing any argument between the parties.  However, those cases and authorities do not support the latter scenario.

26. Given the fact that the Wife did attend Court on 6 January 2016 albeit late until 3:10 p.m., and also the fact that there was a small bundle of supplemental notes produced for the hearing on that day (see paragraph 8 above), there is no room for finding the Wife had abandoned or withdrawn her case for leave to file questions 19, 20 and 22.  The principle of Res Judicata/Issue Estoppel does not apply in her case.  The Order dated 6 January 2016 does not operate as a ‘bar’ to the Wife reviving her leave application through the filing of the January Summons.  This follows that the Husband’s contention that the Wife attempted to re-litigate upon an issue which had been determined but dismissed could not stand.

27. The next question is the Husband’s contention that the January Summons was filed out of the time limited prescribed by the Court on 18 September 2015 and without leave.  Such contention is in conflict with the Wife’s submission that the filing of the January Summons was permissible under the procedural rules of Order 32 rule 5 (4) of the Rules of the High Court, Cap.4A.

28. With my finding against the Husband on Res Judicata/Issue Estoppel, I accept that the Wife is entitled to file a fresh Summons in the way as what she had done on 7 January 2016 (the following day).  I do not, however, accept that the fresh Summons could be said to be based upon Order 32 rule 5 (4) of Cap.4A.  The rule explicitly provides for the restoration of a dismissed Summons.  The 2 October 2015 Summons had not been dismissed. It was in fact and in law disposed of by the Court at the hearing when granting (i) retrospective leave for filing the Third Questionnaire; (ii) directing the Husband to file answers save and except questions 19, 20 and 22; and (iii) adjourning for further disposal as to questions 19, 20 and 22.   

29. The filing of a Summons generally does not require the leave of the Court unless otherwise directed.  The terms of the Order dated 18

September 2015 does provide that all interlocutory applications must be taken out within 14 days from the date of the Order.  The Wife had done so by filing the 2 October 2015 Summons. @@@@@The ultimate question boils down to the January Summons a fresh interlocutory application per se, or a c

30. For these reasons, I find the Husband’s preliminary point of submission of Res Judicata/Issue Estoppel fails.

(b)  Whether the Husband had provided sufficient answers to the Wife’s 1^st and 2^nd Questionnaires  ?

31. It is necessary to first set out and examine each of those questions in the Wife’s 1^st and 2^nd Questionnaires forming the subject of Questions 19, 20 and 22 in the Wife’s Third Questionnaire.  For the sake of easy reading, those of the Husband’s answers are set out in bold print below.

32. Question 19 in the Third Questionnaire referred to the Husband’s 1^st Answers to the Wife’s Questions 26, 27 and 28 (1^st Questionnaire) and the Husband’s 2^nd Answers to the Wife’s Question 17 (2^nd Questionnaire).

33. In Question 26 (1^st Questionnaire), the Wife asked and the Husband answered :-

“26. Please provide with documentary evidence a schedule to each of the following expenses as listed by the First Applicant, setting out the type of expense(s) with dates, the amount, the payer account and the payee account(s) “over the years” :-

i. The downpayment of the UK property as referred to in Part 2.2 (and Question 3 herein);

ii. T’s school fees and living expenses.

iii. L’s school fees and living expenses.

iv. Personal expenses including but not limited to “tax payments, credit card expenses”.

  Answer

i. Downpayment for the UK Property.

Please refer to the First Applicant’s Answer to Question 3 above.

ii. T’s school fees and living expenses during the period from April 2008 to October 2004

Please refer to Annexure 3 for details.

iii. L’s school fees and living expenses during the period from April 2008 to October 2014

Please refer to Annexure 3 for details.

iv. The First Applicant’s personal expenses during the period from April 2008 to October 2014

Please refer to Annexure 3 for details.

34. In Question 27 (1^st Questionnaire), the Wife asked and the Husband answered :-

“27. Please confirm whether the First Applicant provided support to the Second Applicant with the same account prior their separation. If so, please also provide a schedule to her expenses setting out the type of expense(s) with dates, the amount, the payer account and he payee account(s).

“Answer

The First Applicant did provide support to the Second Applicant from the funds owed to him in is director’s loan account with S Holdings Ltd. Please refer to Annexure 3 for details.

35. In Question 28 (1^st Questionnaire), the Wife asked and the Husband answered :-

“28. Please provide a schedule to other expenses not mentioned herein.

Answer

Please refer to Annexure 3 for details.”

36. In Question 17 (2^nd Questionnaire), the Wife asked and the Husband answered :-

“17. Please answer Questions 26, 27 and 28 again in earnest.

Answer

17. The First Applicant has already answered Question 26 in earnest in his Answer dated 11 December 2014. The balance sheets for the director’s loan account which the First Applicant holds with S Holdings Limited for the period from 1 April 2008 to 31 October 2014 has already been exhibited as Annexure 3 in the First Applicant’s Answer dated 11 December 2014. The said Annexure 3 is, in itself, documentary evidence and a schedule of the expenses as referred to in Questions 17(i)(b) to 17(i)(d) above and has also provided details of :-

i. The dates of when the expenses were incurred;

ii. Descriptions of the expenses. For instance :-

a. Annexure 3 in itself provides a schedule of T’s school fees and living expenses paid out from the First Applicant’s director’s loan account with S Holding Limited. Examples of such expenses included expenses with descriptions marked “Hutrchison Telecom” (which were the Children’s mobile phone expenses); “R School”; “T Chan”; “University College London”; “HK School of Motoring”; and “Imperial College London” etc.

b. Annexure 3 in itself provides a schedule of L’s school fees and living expenses paid out from the First Applicant’s director’s loan account with S Holding Limited. Examples of such expenses included expenses with descriptions marked “Hutchison Telecom” (which were the Children’s mobile phone expenses); “English Schools Foundation”; “Warwickshire College”; “L Chan”; “University of Warwick”; and “Imperial College London” etc.

c. Annexure 3 in itself provides a schedule of the First Applicant’s personal expenses paid out from his director’s loan account with S Holding Limited. Examples of such expenses included expenses with descriptions “Govt HKSAR” (which were for his tax payments); “S Chan” (which were usually withdrawn by the First Applicant’s personal bank accounts); and “DBC Bank” and “American Express Int’l Inc” (which were for his credit card expenses).

iii. The payee and purpose of such expenses; and

iv. The amount of expenses for each transaction.

   In the case where the Second Applicant is of the view that the copy of the balance sheets in Annexure 3 is an unofficial copy, the First Applicant has also provided an official letter in Annexure 6 above from S Holdings Limited dated 9 February 2015 confirming the balance of his director’s loan account as of 31 October 2014 (please refer to the First Applicant’s Answer to Question 4(i) above).

   Should the Second Applicant wish to request for further “documentary evidence” in addition to the balance sheets provided in Annexure 3 and in Annexure 6, please specify in detail and elaborate on the “documentary evidence” which the Second Applicant would like the First Applicant to provide and justify how are those “documentary evidence” necessary to the present proceedings.  The same applies to the Second Applicant’s request for a further schedule in addition to the one provided in Annexure 3 and Annexure 6 for the said expenses. Otherwise, the Second Applicant’s query is a waste of time and costs.

  Question 27

“Please confirm whether the First Applicant provided support to Second Applicant with the same account prior their separation. If so, please also provide a schedule to her expenses setting out the type of expense(s) with dates, the amount, the payer account and the payee account(s). Documentary support is necessary.

Answer

27. The First Applicant has already answered Question 27 in earnest in his Answer dated 11 December 2014. As referred to in the First Applicant’s Answer to Question 17(i) above, the Annexure 3 exhibited in the First Applicant’s Answer dated 11 December 2014 is, in itself, documentary evidence and a schedule of the financial support which the First Applicant has provided to the Second Applicant. Besides, Annexure 3 has provided details of :-

i. The types of the Second Applicant’s expenses paid out from the First Applicant’s director’s loan account. Such expenses included expenses with description marked “Voice Technology” (which were for the installation expenses of the Second Applicant’s television); and “IL” (which were usually for the Second Applicant’s personal expenses) etc;

ii. The dates as to when those expenses were paid; and

iii. The amount of those expenses.

  In the case where the Second Applicant is of the view that the copy of the balance sheets in Annexure 3 is an unofficial copy, the First Applicant has also provided an official letter in Annexure 6 above from S Holdings Limited dated 9 February 2015 confirming the balance of his director’s loan account (please refer to the First Applicant’s Answer to Question 4(i) above).

  Similar to Question 17(i) above, should the Second Applicant wish to request for further “documentary evidence” and/or “documentary support” in addition to the balance sheets provided in Annexure 3 and Annexure 6, please specify in detail and elaborate on the “documentary evidence” which the Second Applicant would like the First Applicant to provide and justify how are those “documentary evidence” and/or “documentary proof” are necessary to the present proceedings.  The same applies to the Second Applicant’s request for a further schedule in addition to the one provided in Annexure 3 and in Annexure 6 for the said expenses.  Otherwise, the Second Applicant’s query is a waste of time and costs.

   Question 28

“Please provide a schedule to other expenses not mentioned herein.”

   Answer

  28.  The First Applicant has already answered Question 28 in earnest in his Answer dated 11 December 2014.  As referred to in the First Applicant’s Answer to Questions 17(i) and 17(ii) above, the Annexure 3 exhibited in the First Applicant’s Answer dated 11 December 2014 is also, in itself, a schedule of all the other expenses that had been paid out from the First Applicant’s director’s loan account during the course of the parties’ marriage.  Details of the types of the expenses, the dates of the expenses, the purpose of the expenses and the amount of the expenses have all been set out in Annexure 3 should the Second Applicant review the same.

  In the case where the Second Applicant is of the view that the copy of the balance sheets in Anexure 3 is an unofficial copy, the First Applicant has also provided an official letter in Annexure 6 above from S Holdings Limited dated 9 February 2015 confirming the balance of his director’s loan account (please refer to the First Applicant’s Answer to Question 4(i) above).

  Similar to Question 17(i) above, should the Second Applicant wish to request for a further schedule in addition to the one provided in Annexure 3 and Annexure 6, please justify how is such additional schedule necessary to the present proceedings. Otherwise, the Second Applicant’s query is a waste of time and costs.”

37. The present Question 19 was raised under the heading “Previous Expenses” and read as follows :-

“19. In respect of the 1^st Applicant’s First Answers dated 11 December 2014 to Questions 26, 27 and 28 (page 70 – 72 of 1^st Questionnaire) and Second Answers dated 4 May 2015 to the same Question 17 (page 182-187 of the 2^nd Questionnaire). Please identify those transactions during the period from 1 April 2008 to 31 October 2014 in your bank accounts, credit card accounts and/or director’s loan account and provide a schedule to each of the listed expenses in separate tables as the one below (or equivalent format showing the five headings, date, Description of expenditure, payer, payee and supporting documents). Please provide documentary proof to support your answers including but not limited to goods receipts, wire transfers, bank transfers, copies of cheques (front and back),    etc.”

38. Annexure 3 attached to the Husband’s 1^st Answer consists of balance sheets of SHL from 1/4/2008 to 31/10/2014 (total of 6.5 years).  Annexure 6 attached to the Husband’s 2^nd Answer is the letter from SHL confirming the amount outstanding and due to the Husband as at close of business on 31/10/2014 in the sum of HK$746,279.26. 

39. Question 20 in the Third Questionnaire referred to the Husband’s 1^st Answers to the Wife’s Questions 41, 42 and 43 (1^st Questionnaire) and the Husband’s 2^nd Answers to the Wife’s Questions 24, 25 and 26 (2^nd Questionnaire).

40. In Questions 41, 42 and 43 (1^st Questionnaire), the Wife asked and the Husband answered :-

“41. Please provide breakdown with supporting documents for the following expenses :-

i. Food: HK$500.

ii. Household expenses: HK$1,000.

iii. Car expenses :driver, car parking, running and maintenance”: HK$1,369.

     Answer

  These expenses were paid for by (i) the First Applicant’s Cathay Pacific Elite Credit Card (Credit Card No.3771-xxxxxx-xx006), DBS Credit Card (Credit Card No.4539-xxxx-xxxx-xx19) and  HSBC Premier Credit Card (Credit Card  No.5185-xxxx-xxxx-0020); (ii) withdrawals from the First  Applicant’s bank accounts with DBS Bank A/C No.21-xxxxx10 and China CITIC Bank A/C No.757-x-xxxxxx00; and (iii) withdrawals from his director’s loan account with S Holdings  Limited.

  Please refer to (i) Attachment 2.3 and 2.13 of the First Applicant’s Form E dated 13 March 2014 for a copy of the available credit card and bank account statements; (ii) Annexure 5 and Annexure 8 for the updated bank account statements; (iii) Annexure 23 for the updated credit card statements; and (iv) Annexure 3 for a copy of the balance sheets of the First Applicant’s director’s loan account with S Holdings Limited.

42. Please provide breakdown with supporting documents for the following expenses:-

i. Meals out of home: HK$2,000

ii. Clothing/shoes: HK$2,000

iii. Personal grooming: HK$1,000

iv. Entertainment/presents: HK$8,000

v. Holiday: HK$1,000

   Answer

   These expenses were paid for by (i) the First Applicant’s Cathay   Pacific Elite Credit Card (Credit Card No.3771-xxxxxx-xx006), DBS Credit Card (Credit Card No.4539-xxxx-xxxx-xx19) and HSBC Premier Credit Card (Credit Card    No.5185-xxxx-xxxx-0020); (ii) withdrawals from the First Applicant’s bank accounts with DBS Bank A/C No.21-xxxxx10 and China CITIC Bank A/C No.757-x-xxxxxx00; and (iii) withdrawals from his director’s loan account with S Holdings Limited.

  Please refer to (i) Attachment 2.3 and 2.13 of the First Applicant’s Form E dated 13 March 2014 for a copy of the available credit card and bank account statements; (ii) Annexure 5 and Annexure 8 for the updated bank account statements; (iii) Annexure 23 for the updated credit card statements; and (iv) Annexure 3 for a copy of the balance sheets of the First Applicant’s director’s loan account with S Holdings Limited.

43. Please provide breakdown and explain in context with supporting documents for the expenses :-

i. School fees of L “including meals and accommodation”: GBP4,125/HK$53,625

ii. Medical/Dental “uncovered by insurance”: HK$1,500

iii. Entertainment/presents “including telephone and internet”: HK$1,800

iv. Holiday expenses: HK$5,000

v. Clothing/Shoes: HK$3,600

vi. Meals and accommodation for T: GBP1,400/HK$18,200

   Answer

  These expenses were paid for by (i) the First Applicant’s Cathay Pacific Elite Credit Card (Credit Card No.3771-xxxxxx-xx006), DBS Credit Card (Credit Card No.4539-xxxx-xxxx-xx19) and HSBC Premier Credit Card (Credit Card No.5185-xxxx-xxxx-0020); (ii) withdrawals from the First Applicant’s bank accounts with DBS Bank A/C No.21-xxxxx10 and China CITIC Bank A/C No.757-x-xxxxxx00; and (iii) withdrawals from his director’s loan account with S Holdings Limited.

  Please refer to (i) Attachment 2.3 and 2.13 of the First Applicant’s Form E dated 13 March 2014 for a copy of the available credit card and bank account statements; (ii) Annexure 5 and Annexure 8 for the updated bank account statements; (iii) Annexure 23 for the updated credit card statements; and (iv) Annexure 3 for a copy of the balance sheets of the First Applicant’s director’s loan account with S Holdings Limited.

41.  In Questions 24, 25 and 26 (2^nd Questionnaire), the Wife asked and the Husband answered :-

“24. Please answer Question 41 again in earnest.

Question 41

“Please provide breakdown with supporting documents for the following expenses:-

i. Food: HK$500

ii. Household expenses: HK$1,000

iii. Car expenses “driver, car parking, running and maintenance: HK$1,369”

(Please note: the question ask for the breakdown of the items and not how the 1^st Applicant paid for them)

Answer

  24.  The First Applicant has already answered Question 41 in earnest in his Answer dated 11 December 2014.  The First Applicant has stated in his Answer dated 11 December 2014 to Question 41 that these expenses were   paid for by his credit cards; withdrawals from his bank accounts; and withdrawals from his director’s loan  account with S Holdings Limited.  Hence, the  breakdown of the expenses as referred to in Question 41 can be seen in the credit card statements, bank account statements and the balance sheets of the First Applicant’s  director’s loan account with S Holdings Limited as exhibited in (i) Attachment 2.3 and Attachment 2.13 of the First Applicant’s Form E dated 13 March 2014; and  (ii) Annexure 3, Annexure 5, Annexure 8 and Annexure  23 of the First Applicant’s Answer dated 11 December 2014. In the case where the Second Applicant would like to have a breakdown of the items, she can refer to those statements.

   Besides, the expenses items in Question 41 above (namely Food: HK$500, Household: HK$1,000; and Car  expenses: HK$1,369) are rough estimated averages.  They are also very modest sums and it is unreasonable as well as disproportionate to request the First Applicant to give a further “breakdown” of those items.

25.  Please answer Question 42 again in earnest.

   Question 42

“Please provide breakdown with supporting documents for the following expenses:-

i. Meals out of home: HK$2,000

ii. Clothing/shoes: HK$2,000

iii. Personal grooming: HK$1,000

iv. Entertaiment/presents: HK$8,000

v. Holiday: HK$1,000”

(Please note: the question ask for the breakdown of the items and not how the 1^st Applicant paid for them)

   Answer

   At the outset, there have been changes in the First Applicant’s monthly personal expenses since the filing of his Form E on 13 March 2014, from a sum of HK$95,681 (or a sum of around HK$15,681 if excluding the maintenance payments of HK$80,000 to the Second Applicant) to a sum of HK$100,681 (or a sum of HK$20,681 if excluding the maintenance payments of HK$80,000 to the Second Applicant).  The updated breakdown of his monthly personal expenses is as follows:-

Item	Amount
Meals out of home	HK$2,000
Transport	HK$0
Clothing / Shoes	HK$2,000
Personal Grooming	HK$6,000
Entertainment / presents	HK$8,000
Holidays	HK$1,000
Medical / Dental (uncovered by insurance)	HK$ Covered by employer
Tax	HK$ Settled from director’s loan account
Insurance premia	HK$1,681
Maintenance (for Iris)	HK$80,000
Contribution to parents	HK$0
Dependent family members	HK$0
Others (specify)	HK$0
Sub-total:-	HK$100,681 (or HK$20,681 excluding maintenance payments of HK$80,000 to the Second Applicant)

   With regard to Question 25 above, the First Applicant has already answered Question 42 in earnest in his Answer dated 11 December 2014.  The First Applicant has stated in his Answer dated 11 December 2014 to Question 42 that these expenses were paid for by his credit cards; withdrawals from his bank accounts; and withdrawals from his director’s loan account with S Holdings Limited.  Hence, the breakdown of the expenses as referred to in Question 42 can be seen in the credit card statements, bank account statements and the balance sheets of the First Applicant’s director’s loan account with S Holdings Limited as exhibited in (i) Attachment 2.3 and Attachment 2.13 of the First Applicant’s Form E dated 13 March 2014; and (ii)  Annexure 3, Annexure 5, Annexure 8 and Annexure 23 of the First Applicant’s Answer dated 11 December 2014.  In the case  where the Second Applicant would like to have a breakdown of the items, she can refer to those statements. 

Similar to the First Applicant’s Answer to Question 24 above, since the amount of the expenses referred to in Question 42 is trivial, the Second Applicant’s query is a waste of time and costs.

  26.  Please answer Question 43 again in earnest.

   Question 43

“Please provide breakdown and explain in context with supporting documents for the expenses:-

i. School fees for L “including meals and accommodation: GBP4,125/HK$53,625

ii. Medical/Dental “uncovered by insurance”: HK$1,500

iii. Entertainment/presents “including telephone and internet”: HK$1,800

iv. Holiday expenses: HK$5,000

v. Clothing/Shoes: HK$3,600

vi. Meals and accommodation for T: GBP1,400/HK$18,200”

(Please note: the question ask for the breakdown of the items and not how the 1^st Applicant paid for them)

Answer

  26.  There have been changes to the First Applicant’s  monthly Children’s expenses since the filing of his Form  E on 13 March 2014 as both Children have now  graduated. The monthly expenses have reduced from a  sum of HK$83,725 to a sum of HK$10,000.  The  updated breakdown of his monthly Children’s expenses  is as follows:-

Item	Amount
School fees for Lester (including meals and accommodation)	HK$0
Extra tuition fees	HK$0
School books and stationary	HK$0
Transport to school	HK$0
Medical / Dental (uncovered by insurance)	HK$ Covered by other expenses
Entertainment / presents (including telephone and internet)	HK$ Covered by other expenses
Extra-curricular activities	HK$0
Holidays	HK$ Covered by other expenses
Clothing / Shoes	HK$ Covered by other expenses
Insurance premai	HK$ Fully paid up
Lunches and pocket money	HK$ Covered by other expenses
Other Transport	HK$ Covered by other expenses
Child-minding fees	HK$0
Uniform	HK$0
Others:	HK$10,000
Sub-total:-	HK$10,000

  With regard to Question 26 above, the First Applicant has already answered Question 43 in earnest in his Answer dated 11   December 20914.  The First Applicant has stated in his Answer dated 11 Decemebr 2014 to Question 43 that these expenses were paid for by his credit cards; withdrawals from his bank accounts; and withdrawals from his director’s loan account with S Holdings Limited.  Hence, the breakdown of the expenses as referred to in Question 43 can be seen in the credit card   statements, bank account statements and the balance sheets of the First Applicant’s director’s loan account with S Holdings   Limited as exhibited in (i) Attachment 2.3 and Attachment 2.13 of the First Applicant’s Form E dated 13 March 2014; and (ii)   Annexure 3, Annexure 5, Annexure 8 and Annexure 23 of the First Applicant’s Answer dated 11 December 2014.  In the case where the Second Applicant would like to have a breakdown of the items, she can refer to those statements.

  Besides and as stated above, the monthly expenses as set out in the First Applicant’s Form E have been reduced and the breakdown as shown in Part 4.4 of the First Applicant’s Form E is no longer applicable.

42.  As can be seen, those questions 24, 25 and 26 in the Wife’s 2^nd Questionnaire is a replicate of questions 41, 42 and 43 of her 1^st Questionnaire.

43.  Question 22 in the Third Questionnaire referred to the Husband’s 2^nd Answers to the Wife’s Question 31 in her 2^nd Questionnaire.

44. I now set out below the wordings of Questions 19, 20 and 22 in the Third Questionnaire in respect of which the Wife now seeks to raise with the Husband.

45. Question 19 was drafted as follows :-

“19. In respect of the 1^st Applicant’s First Answers dated 11 December 2014 to Questions 26, 27 and 28 (page 70 – 72 of 1^st Questionnaire) and Second Answers dated 4 May 2015 to the same Question 17 (page 182-187 of the 2^nd Questionnaire). Please identify those transactions during the period from 1 April 2008 to 31 October 2014 in your bank accounts, credit card accounts and/or director’s loan account and provide a schedule to each of the listed expenses in separate tables as the one below (or equivalent format showing the five headings, date, Description of expenditure, payer, payee and supporting documents). Please provide documentary proof to support your answers including but not limited to goods receipts, wire transfers, bank transfers, copies of cheques (front and back),    etc.”

46. Question 20 was drafted as follows :-

“20. In respect of the 1^st Applicant’s First Answers dated 11 December 2014 to Questions 41, 42 and 43 (page 94 – 97 of 1^st Questionnaire)and Second Answers dated 4 May 2015 to the same Question 24, 25and 26 (page 198 – 206 of the 2^nd Questionnaire). Please identify those transactions for the current month in your bank accounts,credit card accounts and/or director’s loan account and provide a schedule to each of the listed expenses in separate tables as the one below (or equivalent format showing the five headings, date,Description of expenditure, payer, payee and supporting documents). Please provide documentary proof to support your answers including but not limited to goods receipts, wire transfers, bank transfers, copies of cheques (front and back), etc.”

[TABLE ]

47. Question 22 was drafted as follows :-

“22. In respect to the 1^st Applicant’s Answer dated 4 May 2015 to Question 31, please list all legal proceedings with Hasting and Co. the instructing solicitor of the 1^st Applicant and/or the companies he represents.”

48. It is plain and obvious that the Wife in her Questions 19 and 20 requires the Husband first to “identify” each and every transaction disclosed by the Husband’s 1^st and 2^nd Answers (including each of the entries recorded in the 6.5 years of balance sheets produced under Annexure 3) in the format of a table set out by her under Question 20.  Apart from identification using such table, the Husband is also required to produce documentary support for

all the answers which apparently was referring to receipts, vouchers, records of payments so on and so forth. 

49. Husband’s Counsel Mr. Jeremy S.K. Chan submitted that this is akin to asking the Husband to do the exercise of a forensic accountant if not more.  If that is so required by the Wife, it should be herself to undertake such exercise at her own costs and not asking for it from the Husband.  In fact, the Husband had went further by producing to the Wife a coloured version of those balance sheets separately bringing out items of expenses over the years spent on the 2 children, himself and the Wife, together with a further letter from SHL updating the Wife the balance of amount due to him as at 10 December 2015 (Exhibit “CHWS-1-7” in the Husband’s Affirmation).

50. The way in which Questions 19 and 20 were drafted, in my view, is no more than an in-depth exploration of the expenses items provided by the Husband in his Answers rather than taking the form of any further or specific discovery.  In such a case, the core issue turns upon whether the Husband’s answers contain sufficient description or information to enable the Wife to know why a particular sum of money was spent, when it was spent, and to whom it was given.  The Husband had already stated the source of funds for paying all the expenses either came from his director’s loan account with SHL, credit card accounts or bank accounts.  The 6.5 years of balance sheets from 2008 to 2014 and further down to 2015 was neatly divided into separate columns of Date, Breakdown, Nature of Payments, Debit and Credit entries.   

51. I agree with Counsel Mr. Chan’s submission that the Husband had provided sufficient answers to the Wife’s 1^st and 2^nd Questionnaires.  Should the Wife be able to justify seeking the Husband’s elaboration on any particular item in the balance sheets, say for instance, an air ticket expense, such request or questionnaire would have to be specifically raised.

52. Given careful consideration to the Wife’s 1^st and 2^nd Questionnaires and the Husband’s 2 Answers, I do not allow the Wife to raise her Questions 19 and 20 in the Third Questionnaire which, in my view, is disproportionate and excessive as rightly submitted by the Husband.