K, AWY v. YHW

FCMC 8794/2022

[2025] HKFC 174

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8794 OF 2022

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

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This Application

1.  This is the Petitioner wife’s (“W”) application for ancillary relief against the Respondent husband (“H”).

2.  The trial was set down for 2 days on 17^th and 18^th December 2024. H did not appear at trial, and the hearing lasted for one day with only the W’s attendance and her legal representation.

Parties background

3.  At the time of this hearing, H was aged 41, and W aged 36. H was born and grew up in Shenzhen, he came to Hong Kong when he was around 17, according to W, he had been working as a licensed property agent. W works as a Senior Client Service associate of an international bank in Hong Kong.

4.  The parties have twin boys, born on XX April 2018, and aged 6 at the time of the hearing (together, the “Children”).

5.  The parties met in July 2016 and commence cohabitation in October 2016. W found out she was pregnant in July 2017, the parties were married on XX September 2017.

6.  Their relationship started to descend downhill in around February 2019; in February 2022, H moved out of the FMH. This was a 5½ years relationship.

7.  W commenced her Petition on 16 September 2022, H filed his Form 4 on 26 September 2022 via his former solicitors. Decree Nisi was pronounced on 17 January 2023.

8.  An Order was made on 31 October 2023 by consent, granting sole custody, care and control of the Children to W, and reasonable access to H.

H’s participation in these proceedings

9.  By my Order of 17 April 2024, W was asked to provide details and evidence of H’s knowledge of and engagement in these proceedings, W’s solicitors summarized the information in her opening submission.

10.  H has never personally attended any hearing; and he has never filed any financial information or Form J.

Failure to provide financial information

11.  Orders were made by paper disposal on 16 November 2022 by DDJ W Y Ho for Form E to be filed, H filed his notice to act in person on 19 December 2022, and did not comply with any of the orders made in November 2022.

12.  When he started to act in person, H did however provide his service address at Tung Chung and his mobile number; and on request from W’s solicitors, he also subsequently provided his email address on 31 January 2023 for receiving documents with regard to the proceedings.

13.  According to W, all subsequent pleadings and correspondences of these proceedings were served on H via (i) ordinary post to his service address (ii) by Whatsapp to his mobile number and (iii) by email to the email address he provided.

14.  When W applied for extension of time to file her Form E, her solicitors duly informed H of W’s intended Summons and the hearing date on 24 February 2023 in or around 10 February 2023, this is contained in the Solicitors’ Affirmation of Service dated 23 February 2023. H did not attend Court on 24 February 2023. When the Order was made for W’s time extension, it was served on him on 22 March 2023. H responded via email on 26 March 2023, asking for more time and stating he wished to settle the matter with W. H must therefore be fully aware of the Court Order for financial information disclosure at that point of time.

15.  At the first Case Management Hearing (“CMH”) on 14 September 2023, I adjourned the CMH to 5 December 2023, giving a further 28 days after service for H to file his Form E. This Order was served on H in or around 25 October 2023 (Solicitors’ Affirmation of Service dated 4 December 2023). H did not comply with the Order.

16.  The following CMH on 5 December 2023 was presided over by HHJ CK Chan, who issued an Unless Order for H to comply with the Order to file his Form E by 9 January 2024, failing which he would be debarred from filing the same. This Order was served on him on 3 January 2024 (Solicitors’ Affirmation of Service dated 16 April 2024). H did not comply with that Order.

17.  No financial information was ever filed by H in these proceedings despite given a number of opportunities.

H’s limited engagement with regard to the Children issues

18.  H did not file the Form J ordered by DDJ WY Ho on 16 November 2022.

19.  H had in April 2023 participated in an interview with the SWO (via video link) for preparation of the SIR, and used his service address for the report.

20.  A Children’s appointment was set down on 19 May 2023 by Order of DDJ W Y Ho on 3 February 2023. This Order was served on H on 22 March 2023 (Solicitors’ Affirmation of Service dated 23 February 2023).

21.  H did not attend the hearing on 19 May 2023.

22.  When the Order of 19 May 2023 was served on H on 23 August 2023, he was also informed of the CMH on 14 September 2023. H responded via Whatsapp to W that he would not be attending the CMH, and he would sign the necessary documents so that she can have the Children.

23.  H eventually signed a Consent Summons with regard to Children arrangement which he sent back to the W’s solicitors by courier on 11 October 2023. This was made an Order of Court on 31 October 2023.

CMH and PTR

24.  DDJ W Y Ho set down these proceedings for CMH on 14 September 2023 by her Order of 19 May 2023. Referencing paragraph 22 herein, H was in receipt of the Order and said he would not be attending the CMH.

25.  On receipt of the Order of 14 September 2023, Referencing paragraph 15 herein, H should have been aware that the CMH had been adjourned to 5 December 2023. He did not attend the 2^nd CMH.

26.  On receipt of the Order of 5 December 2023, referencing paragraph 16 herein, H should have been aware that the CMH has been adjourned to 17 April 2024, he did not attend the 3^rd CMH on this date.

27.  At this 3^rd CMH, the PTR was set down to be heard on 8 October 2024. This Order dated 17 April 2024 was served on H on 3 June 2024. And the note for the PTR was served on him on 4 October 2024 (Solicitors’ Affirmation of Service on 29 October 2024). He did not appear at the PTR.

Date of the Trial

28.  The trial dates of 17 and 18 December 2024 were set down at the 3^rd CMH on 17 April 2024. As mentioned above, this Order was served on H on 3 June 2024.

29.  The Notes of the PTR from the Petitioner dated 4 October 2024 was served on him the same day, this note also mentioned the upcoming trial dates.

30.  Draft Trial Bundle index (Solicitors’ Affirmation of Service of 13 December 2024) and the chronology was served on H on 30 November 2024; the draft Schedule of assets and liabilities and List of issues in dispute were served on H on 2 December 2024.

31.  W’s solicitors also contacted H by phone on 2 December 2024 reminding him about the upcoming trial on 17^th and 18^th, confirmed his receipt of documents sent and enquired if he needed more time to review the documents; H answered that there was no need and cut off the call (Solicitors’ Affirmation of Service of 13 December 2024). W’s solicitors went on to serve the abovementioned documents filed with Court on H through ordinary post to his service address, as well as by email and Whatsapp message in the usual manner.

32.  The opening submission and open proposals were served on H on 9 December 2024.

W’s Affidavits

33.  W has filed the following Affidavits:

	Scope	Date of Affidavit	Service on H
3rd Affidavit	Narrative Affidavit	22 February 2024	22 February 2024
4th Affidavit	PRC Properties land searches	29 May 2024	29 May 2024
5th Affidavit	Financial update	24 September 2024	24 September 2024
6th Affidavit	Landed properties valuation	22 October 2024	Order made on 8 October 2024*
7th Affidavit	Service of documents on H	29 October 2024	Order made on 17 April 2024 served on H 3 June 2024

*I am unable to find the record of service of this Affidavit or the Order but the valuation of the properties are contained in the Schedule of assets and liabilities which was served on the H on 2 December 2024

My findings on the H’s knowledge of these proceedings

34.  I am satisfied that every effort has been made to effect service on H and find that he has been fully informed of the proceedings throughout and been provided with the documents filed herein, and he has deliberately chosen not to comply with any of the Court Orders nor participate in any way. In particular, he has chosen not to provide any financial information, nor refute any of W’s allegation on his ownership of assets and valuations thereof.

35.  While given ample opportunity to do so, H has failed to file Form E or a narrative affidavit, he did not respond to W’s submission, open proposals, and various schedules, and he did not appear at trial.

36.  My starting point on this case is that no challenge has been made by H to W’s case.

W’s Case

37.  W says that during the marriage, H had been paying for the rental of around $15,000 to 16,000 for the former matrimonial home and around $20,000 for herself and the Children; and when he moved out in February 2022, he unilaterally reduced the amount to $10,000.

38.  She says H had only resumed seeing the Children on 26 June 2022 but had only seen them for 4 times before ceasing all physical contact with the Children from 17 September 2022 onwards.

39.  In accordance with an agreement regarding the Children, H is to pay $20,000 to W for the children but since the last time he saw the children in September 2022, he ceased all payment of maintenance from October 2022.

40.  In April 2022, she moved in with her parents who live in TKO together with the Children. And in September, W and her parents and the Children move to a property in TKS. This property is held in her name but also beneficially owned by her parents (more on this later).

41.  W’s parents have been helping to look after with the children. As at the time of the hearing, her mother is living with her, and her father has moved back to TKO.

42.  W says H owns a number of real properties, although her information is limited; this will be considered below in the analysis of the matrimonial pot.

W’s Open Proposal

43.  Based on W’s calculation, the matrimonial pot is around $84.3 million, this is made up of $1,165,554 in her name, and $83,147,886 in H’s name.

44.  W asks that she retains her interest in TKS, to enjoy solely the benefit thereof.

45.  W asks for a lump sum of $10,000,000 to be paid to her within three months from the Decree Absolute; or in the alternative, a nominal maintenance of $1.

46.  W asks for H to pay periodical payments in the sum of $50,000 for the Children ($25,000 each) until they reach the age of 18 or ceases full time education, whichever is the later.

H’s Case

47.  Needless to say, H has provided no information on his case.

48.  The only relevant information I can glean on the evidence, is in one of his Whatsapp messages dated 13 February 2023 (at 2:41 pm), in response to documents served on him, he said to W the following:

“… 另外我在香港有幾多錢你可以分, 其實你大約也計得出, 銀行帳戶混亂, 牽連甚廣不能給你. 我相信你也清楚我剩下的沒有多少.

太古城不用說了直接給你, 每月2萬元小朋友撫養費, 但我和母親必須有每個星期看一次的探視權,並且可以帶小朋友出街玩…”

The Applicable Law & Legal Principles

Legal Principles with regard to determination of ancillary relief claims

49.  Section 7 of the Matrimonial Proceedings and Property Ordinance (“MPPO”), Cap 192 sets out the matters that the court must have regard to when making orders for ancillary relief:

“(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.

50.  The Court of Final Appeal in its landmark judgment of LKW v DD [2010] 13 HKCFAR 537 has laid down a 5-step approach in assessing the division of the parties’ matrimonial assets:

1. The ascertainment of the financial resources of each of the parties calculated as at the date of the hearing (§§71 to 73);

2. The assessment of the parties’ financial needs. If the total resources are not enough to meet the parties’ needs, the s.7 exercise should stop at this step and there is no room to apply any sharing principle (§§74 to 79);

3. If surplus assets would remain after the parties’ needs have been catered for, the next step should normally be for the court to apply the sharing principle to the parties’ total assets, with a yardstick of equal division as part of that principle. This means that the total assets should be divided equally between the parties unless there is good reason for departing from an equal division (§§80 to 82);

4. In considering whether good reasons exist for departing from equal division, the answer is to be found in the terms of s.7 and the implicit objective of a fair distribution of the assets. Factors like source of the assets, conduct, financial needs, duration of the marriage, contribution to the family and compensation are all material considerations (§§ 83 to 130); and

5. The weight to be given to each of the factors is a matter of discretion for the court (§131).

51.  Which are to be considered against 4 guiding principles, namely:

(i)  objective of fairness,

(ii)  rejection of sex or role discrimination,

(iii)  yardstick of equal division, and

(iv)  rejection of minute retrospective investigation.

52.  The principles are trite and will be applied to the issues in this case hereinbelow.

Legal principles with regard to failure to disclose financial information

53.  On this, I turn to the case of Moher v Moher [2019] EWCA Civ 1482; [2020] 2 WLR 89; [2020] 1 FLR. 225; [2019] 3 FCR. 244, which was quoted in the case of CCYL v CCSR [2022] HKFC 238 by HHJ I Wong at paragraph 86 therein:

86. … English Court of Appeal 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.

54.  It has been said where a party has been guilty of not making full disclosure, he could not complain if uncertainties were determined against him: L v C [2007] 3 HKLRD 819, at paragraph 191(2). And in the case of NG v SG (Appeal: Non-Disclosure) 2011 EWHC 3270 (Fam), [2012] 1 FLR 1211, at paragraph 16 (viii):

“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 that the Court should be drawn to into making an order that is unfair to the Claimant.”

55.  On the analysis that I have set out, I find that H is in grave dereliction in compliance with his duty of full and frank disclosure. I am therefore fully justified in drawing adverse inferences against H, and find that he is in possession of the assets that W claims. As guided by the above authorities, the proper approach to be taken is to infer that his resources are sufficient, or are such that the proposed award to the W represents a fair outcome; and that he has the ability to pay the amount to be ordered in this decision.

Discussion

Parties’ Financial Resources

H’s Assets

56.  Information on H’s assets could be found in W’s 3rd and 4th affidavit of 22 February 2024 and 29 May 2024, and subsequently updated in her 5^th and 6^th Affidavits dated 24 September 2024 and 22 October 2024. These are the affidavits which were served on H; or where orders were made for him to file and serve affidavits in opposition and H has failed to do so; or the Orders made for the affidavit to be filed and subsequent PTR Note were duly served on him so H is apprised of the fact that affidavits were to be filed by W, and H did nothing to ask for an opportunity to respond. It is therefore clear that the evidence of W’s case on the H’s assets, income and valuations is unchallenged, and the Court is at liberty to accept these information as the basis of W’s ancillary relief claims.

Properties

Zhuhai Property

57.  The Zhuhai property was valued by a Mainland valuation company at RMB2,087,760 ($2,275,658) as at 16 October 2024. According to the information provided, H co-owns this property in Zhuhai with another person, it was purchased in September 2016 and which ownership was registered in October 2016. 50% would be $1,137,829.

58.  From the report, it would appear that the property is mortgaged but W does not know how much mortgage is outstanding.

59.  In accordance with a rental agreement produced by W which was signed by H and the tenant, W says the property is rented out at around RMB3,500 monthly, she understands that the rental income is used to set off the mortgage payment. In fairness, W says that she has not taken into account this amount when citing H’s other rental income as his resources.

Shi Yan Street No. 12 and No. 26

60.  W believes the two properties at Shi Yan Street belonging to H had been surrendered for redevelopment with a company in the Mainland. W has in her possession the original copy of the Compensation Agreement dated 12 May 2017 signed between H and this company.

61.  According to the Compensation Agreement, upon completion of the redevelopment project, H would be entitled to an apartment of 220.18 square meters. Furthermore, H would have other compensatory payments including monetary reimbursement, relocation subsidy, transitional rent etc totalling RMB337,924 ($368,337).

62.  PRC Solicitors instructed by W says that the ownership certificates of these properties could not be located, although this is not uncommon. At the inspection for valuation of these properties, it was found to be “hoarded” up and the constructions “has yet completed”. W’s valuation is based on market value of an apartment of the size that H would be entitled to in the vicinity, and at RMB8,490,000 ($9,254,100).

Shang Wu Xin Cun No.3

63.  W has visited this property with H during the marriage in 2018.

64.  This is an 8 – storey building owned by H. W says H has signed a tenancy agreement with someone to rent out 1^st to 7^th floor at a monthly rental of RMB19,000 from 1 May 2015 to 30 April 2018; and kept the top floor for his own use.

65.  W’s valuation of this property is estimation based on neighbourhood properties, at RMB56,134,426 ($61,186,524).

66.  Again, PRC Solicitors instructed by W says that the ownership certificates of these properties could not be located, although this is not uncommon.

Tian Xin Properties (2 properties)

67.  W says that she was advised by her PRC lawyers, that H may have beneficial interests in two properties which are also subject of a redevelopment project similar to the abovementioned Shi Yan Street properties.

68.  W managed to find an extract page of an agreement concerning the redevelopment, this was dated September 2015 and signed by H; and also cited the size of the respective properties.

69.  While W was unable to search the address on the agreement in October 2024, she resorted to look at the market value of neighbourhood properties and estimates the value of the two properties based on the size cited in the abovementioned extract, to be around RMB4,802,892 ($5,235,152).

Central Property, Hong Kong and sale proceeds

70.  This property was purchased in around May 2017 and sold on 25 March 2021 for $5,430,000.

71.  W discovered copies of completion statements when the property was purchased, and found that the property was mortgaged to Bank of East Asia, the loan amount then was $3,061,380. According to W’s calculation, the balance of the mortgage at the time of sale of the Central Property should be $2,689,686 and estimates that H is likely to have received not less than $2,740,313 in net sale proceeds.

72.  When the property was sold, H transferred a sum of $500,000 to his mother on 22 April 2021; and W considers that this is H’s dissipation of funds prior to the divorce in early 2022.

Kowloon Property and Sale proceeds

73.  H also co-owns a property in Kowloon with another person which was purchased in September 2016 and sold on 29 January 2021 at the price of $3,960,000, W produces a deposit slip for a cheque in the amount of $2,289,757 in favour of the joint owners of the same date, 50% thereof would be $1,143,878.

74.  W says that this property was subdivided into three units and rented out fetching a total of $9,320 per month in total.

75.  Again, when the sale proceeds were received, H transferred an amount of $450,000 to his mother. Once again, W says this is dissipation of family funds prior to the divorce.

Liquid Assets

76.  W further assesses that H has other cash assets from the following sources:

a.  Sale proceeds from the Central property of at least $2,740,313

b.  Sale proceeds of the Kowloon property of at least $1,143,878

c.  Agency fees received from a settlement deal of a property on Austin Road of $1,581,750 (W produced a deposit slip of payment to H)

d.  Agency fees received from two lease arrangements of $500,000 (W produced a copy of the agency agreement signed by H with parties to the leases)

e.  Cash sums received from the surrender of Shi Yan Street Properties for the redevelopment project of $368,337

These amounts come up to $6,334,278 in total.

77.  It is recognised that these liquidity amounts went back some way from the date of the hearing. Item a and b above were received in early 2021; item c was received in October 2020, during tax year 2020/21, and Item d in May 2021, during tax year 2021/2022; and it is not clear when item e was received by the H, but the Compensation Agreement was signed in 2017.

78.  In considering this submission from W, I have taken into regard that H would have expenses over the years, although the Court has no sight of these numbers. His expenses could have been covered by these amounts listed above, or his own income which included those coming from his salary, and subsequently his own company, and rental income from his various properties.

W’s Assets

79.  W’s most substantial asset is the property she now lives in at TKS. This is valued at $8,770,000 as at October 2024, with an outstanding mortgage of $4,789,929, therefore the net value is $3,980,071.

80.  W has elaborated in detailed explanation of the beneficial ownership of the TKS property leading to the arrangement whereupon she claims now to have only 34.1% of the TKS property, and her parents together owns 65.9%.

81.  In brief, a property on Austin Road was purchased in July 2015, W’s contribution to the TKS property purchase came from the sale proceeds of this property on Austin Road which W used to co-own with her ex-boyfriend, and her parents. When the relationship with her ex-boyfriend fell apart, the property was sold in August 2017, and the net sale proceeds therefrom were apportioned to W and her parents in the proportion of their respective contributions. As they wanted to purchase a property in TKS for investment purpose, they all placed the proceeds they received from the Austin property into buying TKS. W calculates the money so contributed based on the purchase price of TKS, and assesses her portion of the capital comes to 34.1%. Hence, she says her share of the net value of the TKS property is $1,357,204.

82.  H has never challenged W’s version of these events. He had also said in his abovementioned WhatsApp message on 13 February 2023 that the TKS property is to go to W. I therefore accept the W’s version of ownership in TKS, the value thereof, and H’s intention that W should retain her interest in this property for herself.

W’s Liabilities

83.  W has to bear all the maintenance of the Children when H stopped paying from October 2022; she initially resorted to borrowing from banks and credit companies and her father. After paying off the credit company and bank loans in July 2023 and September 2024 respectively, she has since been borrowing only from her father to save on the interests. As at the time of hearing, she owes him $1,062,406.

The Matrimonial Pot

84.  It is submitted by W that the following are the assets and liabilities of the parties respectively:

Wife

		HK$
1	34.1% of TKS	1,357,204.05
2	Cash at bank	23,136.95
3	Children’s school debenture	180,000
4	Insurance policies	92,365.64
5	Diamond engagement ring	45,000
6	Pension Fund	559,900.97
7	Net Liabilities   Loan from Father	(1,092,052.93)
		1,165,554.68

Husband

		HK$
1	50% of Zhuhai Property (without taking into account outstanding mortgage)	1,137,829.20
2	Shi Yan Street Properties (Redevelopment)	9,254,100
3	Shang Wu Xin Cun	61,186,524.39
4	Tian Xin Properties (Redevelopment)	5,235,152.54
5	Sale proceedings of Central Property	2,740,313.78
6	Sale proceeds of Kowloon Property	1,143,878.61
7	Agency Fees received from Austin Property deal	1,581,750
8	Agency fees received for a lease	500,000
9	Cash sums received from surrender of the Shi Yan Properties	368,337.87
		83,147,886.39

85.  In the absence of any responses or challenges from H, I accept W estimation of H’s assets value. In particular, the Zhuhai property is a result of land search in Zhuhai with H’s Hong Kong Identity Card, W has put forward evidence of H surrendering properties at Shi Yan Street and Tian Xin for redevelopment, and W had personally visited the building at Shang Wu Xin Cun. The property valuations of Zhuhai and Shi Yan Street come from valuers in the PRC, and as for Tian Xin and Shang Wu Sin Cun, W has turned to conduct research for value in the neighbourhood of these latter properties, which are accepted by me. I also accept the evidence that there had been difficulties in locating ownership information of these properties, according to W’s evidence, it could be possible that the properties do not have ownership certificates due to historical reasons, as some landowners built properties without applying for proper land title documents or the local government could not complete registration of properties due to the vast numbers; furthermore, if properties have been subject to land conversion scheme (redevelopment), the original ownership certificates might have been discharged.

H’s Income & Earning Capacity

86.  During the marriage, H was a licensed property agent initially until he started his own company in around early 2020.

87.  Based on tax returns from his employers, W says he was making the following average amount while he was employed:

	Annual income	Average monthly income
2016-17	$1,380,925	$115,017
2017-18	$4,101,538	$341,779
2018-19	$1,655,639	$147,969
April – December 2019	$717,186	$79,687

88.  When H started out on his own, W was only able to find limited information to show for the tax year 2020-21, at least $1,581,750; and for the tax year 2021-22, two copies of agency agreements dated in May 2021 worth $500,000; that documented in part H’s income. It is acknowledged that W is not in a position to seek out more information of the H’s income.

89.  W also submits that in any event, H’s income would not be less than $20,000 as he offered to pay this amount of maintenance for the children, although this maintenance was ceased in October 2022.

90.  It is accepted that H has a reasonably high income and earning capacity. Understandably as an estate agent, H income from his business could be market dependent, but W says that H had been his employer company’s top sales for 8 consecutive years when he was employed and he left to set up his own company as he did not wish to share the commission he earned with his employer. Taking his earnings while he was employed, he was making, on a monthly average of $174,561 over 3 years and 9 months ($1,380,925 + $4,101,538 + $1,655,639 + $717,186) / 45 months. I will accept these figures as H’s earning capacity, and considers that he could be making even more at his own company.

91.  W also submits that H was receiving rental income from the properties he owns, while the numbers upon which W relies were historical due to the absence of disclosure; W’s basis of calculation reveals that H should have been receiving a monthly rental of $22,142 to $47,491 during the 7 tax years period from 2016/17 to 2022/23. These came from the Central Property, the Kowloon Property and the Shang Wu Xin Cun No.3.

W’s Income and Earning Capacity

92.  W works as a Senior Client Service associate at an international bank in Hong Kong, earning a monthly salary of $73,866.

93.  Given W’s age, it is expected that she will be continuing with her employment, and I accept this figure as her earning capacity.  

Assessing Parties’ Needs

W’s Financial Needs

94.  W presents the following expense table in her 5th affidavit of 24 September 2024, which are as follows (decimals removed):

GENERAL	HK$
Rent	18,159.71
Mortgage	8,178.93
Utilities	1,685
Management Fees	884.55
Food ($12,000 out of which is paid by my mother directly with my payment of $20,000 to her each month)	13,000
Household expenses	350
Insurance	182
TOTAL : General	42,440.19
PERSONAL
Meals out of Home	4,000
Transport	880
Clothing / Shoes	550
Personal grooming	700
Entertainment / presents	630
Holiday	2,921.80
Uncovered Medical / Dental	100
Tax	5,437.08
Insurance premia	3,555.49
TOTAL : PERSONAL	18,774.37

95.  With regard to her general expenses, W says:

a.  When W and her parents purchased TKS, it was an investment property. The rental received was used to pay off the mortgage and management fees, and the net balance was all given to her parents as her share of the net balance was very small. After they moved to live at TKS, she knew that she has deprived her parents of the income from TKS and she resorted to paying ½ share of the market rental to her parents (½ share only because she is in dire financial difficulties) as well as contributing to the monthly mortgage, management fees, and government rent and rates in the proportion of their beneficial interest. From March 2024, W agreed with her parents that she would be paying for their share of the monthly mortgage, management fees and government rent and rates, which is a similar amount to the prevailing market rent. This explains her expenses showing the rental and mortgage elements of TKS.

b.  She also says that the $20,000 she pays to her mother each month includes the amount of $12,000 being sums her mother has been paying directly on her behalf for food items and household expenses, and $8,000 being child minding fees to her for taking care of the Children.

96.  I take note that the food item of $12,000 also includes household expenses paid by her mother for the family; and I accept that W is paying her mother a child-minding fee that is higher had she engaged a domestic helper. In the round, I found W’s General and Personal expenses to be reasonable and modest.

97.  I also take the view that with W’s income, she is able to take care of her own personal expenses, and a portion of the general expenses expected of her in the circumstances.

98.  In W’s open proposal, she is asking for $10 million of capital share of the matrimonial pot. From the calculation above, I find that H would be in position to pay or at least have the asset(s) to borrow against for the purpose of securing this amount. $10 million is also a small percentage of the total matrimonial pot of $1,165,554.68 + $83,147,886.39 = $84,313,441.1. 11.86% is a reasonable ask for a case with this background and size of asset pool.

99.  While it has not been explained as to how the $10 million is tied to her needs. I am mindful that she has a mortgage of at least more than $4.79 million just prior to the hearing for which she is bearing in full. The capital will allow her to pay off her debt to her father, and may ease off on this mortgage payment in terms of duration and amount to a certain extent. More importantly, it is important she has some buffer as the children are in her care and control, and a long time before they complete their education. Furthermore, this capital sum should provide some financial security given the history of this case. I therefore find that W’s open proposal for $10 million lump sum is a reasonable amount.

H’s Needs

100.  Clearly I have no way of assessing H’s needs.

101.  W reminds me that H told the SWO and record in the SIR dated 2 May 2023 that he was renting a studio flat in Shenzhen at RMB2,600 per month.

102.  Based on the assessment of his earning capacity, he is more than able to financially support himself.

Children’s Needs

103.  W produces the following numbers for the Children’s needs.

	HK$
School Fees	25,373.17
School books and stationery	60
Transport to School (including school bus)	2,940
Uncovered Medical / Dental	333.33
ECA	10,475
Entertainment/ presents	1,000
Holidays	2,600
Clothings / Shoes	745
Insurance premia	1,031.42
Lunches and Pocket money	1,669.50
Other transport	800
Uniform	400
Child minding fees (paid to W’s parents in place of domestic helpers)	8,000
Miscellaneous	364
TOTAL	55,791.42

104.  Noting these numbers are for two children, I also find them to be reasonable and modest; and remind myself the Children are only aged 7 and the school fees are likely to increase with time.

105.  As for the Children’s share of the general expenses, a broad brush approach would be for the Children’s portion of the general expenses to be $42,440 × 1/2 = $21,220 (2 children in a household of 4), rounded up to $22,000; and applying a proportion to this amount base on earning capacity as considered above, I conclude that the H is to bear 2/3 of this amount which is $14,666, rounded up to $15,000.

106.  H should also proportionately bear 2/3 of the Children expenses which is $55,792 × 2/3 = $37,195, rounded up to $38,000.

107.  The tally for H’s share of the Children’s expenses is therefore $38,000 + 15,000 = $53,000.

Application of the Sharing Principle and Departure from Equality

108.  I have assessed W’s ask of $10 million to be a reasonable amount. While there are assets left in the matrimonial pot, W is not asking for a percentage sharing thereof.

109.  The case law is also trite that I should not immerse myself in analysing the minutiae to come up with a number or bracket for the matrimonial pot.

110.  It is acknowledged that this is not a long marriage. Parties’ cohabitation in October 2016 moved seamlessly into their marriage in September 2017, and H left the matrimonial home in February 2022; this is therefore a relationship of around 5½ years. If I had to look at departing factor from equal sharing of matrimonial assets, the duration of marriage would be part of the consideration.

111.  In the circumstances, I would not be applying the sharing principle to this case.

Deciding the Outcome

112.  I have come to the conclusion that the H is to pay W a lump sum award of $10,000,000 for herself, as full and final settlement of all claims she has against him.

113.  Relying on the above cited Moher v Moher, and faced with the H’s conduct and the extent of non-disclosure on his part, I am entitled to “infer that the resources are sufficient or such that the proposed award does represent a fair outcome.” I am of the view that this is a fair outcome to W for her ancillary relief claim; and that H has the ability to pay for this amount.

114.  The maintenance payment for the Children shall be $53,000 for the two of them.

Enforcement in the PRC

115.  At the end of W’s submission, she makes reference to section 37 of the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap 639).  It is submitted that the Order to be made in this decision falls under the provision of this Ordinance and one that could be enforced by W in the Mainland following certain prescribed procedures.

116.  W is correct in her contemplation that there are still process ahead in the Mainland to ensure H’s compliance with the Order herein. I agree that the Orders made below falls under Part II of the Matrimonial Proceedings and Property Ordinance (Cap 192) and effective in Hong Kong for the purpose of applying Cap 639.

Costs

117.  Costs should follow the event, and clearly the W has been successful in her claim. There shall be a Costs Order in W’s favour.

118.  Given the conduct of the H in his lack of engagement in almost the whole process (except for the minor involvement regarding the Children), his delinquent maintenance payment for the Children of an amount he himself offered to pay, and the clear consequential legal process W has to go through to obtain the information to enable her to process her claim, I am of the view that the H should be paying Costs on an indemnity basis.

Orders

119.  For the reasons aforesaid, I make the following Orders:

a.  The Respondent Husband shall pay a lump sum to Petitioner Wife of $10,000,000 within 3 months from the granting of Decree Absolute.

b.  The Respondent Husband shall pay $53,000 to the Petitioner Wife for the maintenance of the Children of the family, being $26,500 for each child. This payment to be backdated to the month following the trial, from 1 January 2025 and thereafter on the 1^st of each month until they reach the age of 18 or complete full-time education, whichever is the later.

c.  Costs of these proceedings, including all costs reserved, be to the W on an indemnity basis, to be taxed if not agreed. This to be a Costs Order nisi to be made absolute 21 days hereof.

d.  Section 18 Declaration to be issued.