CSM v. NSY

FCMC 10433/2017

[2019] HKFC 88

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 10433 OF 2017

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Decision

(Leave to Appeal)

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1.  This is the Petitioner/Wife’s (“W”) application by Summons dated 31 December 2018 for leave to appeal against the Order dated 17 December 2018.

2.  W failed to comply with the requirements under the Notice of the “New Arrangement for Application for Leave to Appeal in the Family Court” dated 13 August 2018. She did not file the draft Grounds of Appeal and Skeleton Submission together with her Summons; the same were only lodged on 18 January 2019.

3.  By her 5^th Affirmation, W seeks leave to lodge her draft Grounds of Appeal and Skeleton Submission out of time. Having considered the explanation for delay, length of delay, risk of prejudice to the other party, leave is granted. The Respondent/Husband (“H”) subsequently lodged his Skeleton Submission on 1 February 2019 opposing the grant of leave to appeal.

The Orderdated 17 December 2018

4.  At the hearing on 17 December 2018, the Court dealt with W’s discovery summons dated 19 November 2018 by which she sought discovery of “Class 1” and “Class 2” documents. H’s Form E was filed on 25 September 2017; but Class 1 documents relate to H’s bank statements back the period from January to December 2013 for one Dah Sing Bank account, one Bank of China account and 4 securities accounts of Fulbright Securities.

5.  Against the relevant history of proceedings as set out below, I dismissed the discovery summons in part. Discovery of Class 1 documents is dismissed outright (“Class 1 Order”); in relation to discovery of Class 2 documents, directions are given for the filing of evidence and for substantive argument.

6.  W now seeks leave to appeal against the Class 1 Order.

Grounds of Appeal

7.  W’s 5 grounds of appeal can be categorized into 3 heads:

(1)  The Court erred in dismissing part of the application without hearing substantive argument or considering merits.

(2)  The Court erred in regarding W’s renewed application as an abuse of process. Despite W’s previous withdrawal of a general discovery request, she is not debarred from making an application for specific discovery; the avenue of making further discovery applications is still open to her.

(3)  Class 1 documents are plainly relevant and necessary to ascertain the size of the matrimonial pot in the ancillary relief proceedings.

Relevant History of Proceedings

Hearing on 6 June 2018

8.  W’s first request of the Class 1 documents was in her discovery summons dated 17 May 2018. As evident by the transcript of proceedings, at the hearing on 6 June 2018 before HH Judge G Chan, the scope of W’s discovery was discussed.

9.  W’s legal representative expressly acknowledged to the Court that the summons was not for general discovery, and the focus was on the “big” figures but not a full scan of documents. Upon parties’ discussion, a few transactions were identified by W to go about; this was recorded in writing. It was W’s own choice and decision that she did not want to go for a full-blown discovery of all statements of the relevant bank accounts. 

10.  W’s legal representative then prepared and handed up her handwritten draft amended summons to the Judge offering to amend the summons to define the scope of discovery. The Judge instead directed W to file a Questionnaire in relation to those identified transactions. It was done and H has duly answered.

Hearing on 23 October 2018

11.  At the adjourned First Appointment hearing on 23 October 2018, the Court dealt with W’s request for disclosure of documents under the Schedule of Documents in her hearing bundle dated 9 October 2018 (“the Schedule”). The Schedule contained Class 1 documents; this was the 2^nd time W asked for the same.

12.  Upon H’s objection, W seeks leave to withdraw her request, except for items under Annexure 47 and 48 in the Schedule. (Annexure 47 and 48 do not cover Class 1 documents.) Leave was granted. The Court further ordered that “Unless by 20 November 2018 W takes out the relevant application for disclosure of documents under Annexure 47 and 48 under the Schedule of Documents dated 9 October 2018, W shall be debarred from doing so.”

13.  W did not obtain leave to issue summons in respect of the Class 1 documents, but she saw fit to request again the same items in the discovery summons filed on 19 November 2018.

Hearing on 17 December 2018

14.  17 December 2018 was the call-over hearing of W’s discovery summons filed on 19 November 2018. W’s legal representative admitted that Class 1 documents is outside the scope of documents which the Court sets limit, but argued that W is entitled to make further discovery applications.

15.  I dismissed the application for discovery of Class 1 documents mainly because it offended the Order made on 23 October 2018. Further, W’s repeated attempts of discovery despite previous withdrawals of the same request is an abuse of process.

Intended Appeal has no reasonable prospect of success

16.  In exercising its case management power (taking into account the relevant history of proceedings) to limit the scope of discovery, the Court dismissed the application. There is no need to adjourn every application for substantive argument when it is plainly a waste of time and costs.

17.  The intention and effect of the Order dated 23 October 2018 is abundantly clear that W was only allowed to take out application for disclosure with the scope limited to Annexures 47 and 48. Hence, the avenue of making further discovery applications beyond the limit imposed by the Court is not open to W as alleged.

18.  Even if the application is considered on merits, it has no merits and is a fishing exercise. The intended discovery is premised on the ground that there is asset gap between 2011 to 2017 in H’s Bank of China account and Dah Sing Bank account. H has expressly answered that the Dah Sing account was closed in December 2011. In any event, the asset gap in the Bank of China and Dah Sing Bank since 2011 does not justify a full-blown discovery of accounts in Fulbright in 2013. In the absence of justification on why a general discovery beyond the usual disclosure period should  be allowed, W’s application is meritless.

19.  Since the intended appeal has no reasonable prospect of success, and there is no other reason in the interests of justice why the appeal should be heard, leave to appeal is therefore refused. (See : section 63A of the District Court Ordinance Cap 336) 

Conclusion

20.  W’s Summons dated 31 December 2018 is dismissed.

21.  I make a costs order nisi that W do pay H’s costs of the application summarily assessed at HK$75,000.

22.  Unless there is an application within 14 days to vary, the nisi order shall become absolute.