LNE formerly known as LKPBB v. CKLM

FCMC 13477 /2019

[2024] HKFC 73

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 13477 OF 2019

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JUDGMENT

(Ancillary Relief)

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Introduction

1.  At centre stage of this ancillary relief trial is whether the respondent husband has substantial hidden assets amassed from his professional investments or he is just a retiree without any income.

2.  The wife is the petitioner in the present divorce suit. In this Judgment, I shall, for convenience, refer to the petitioner as “the wife” and the respondent as “the husband”, though I understand litigants often dislike being so described in proceedings of this nature.

The Twists and Turns of the Proceedings

3.  While the impacts of Covid on all aspects of our lives are still alive in our memory, the longer time for this litigation journey cannot simply be explained by Covid.

4.  The husband has been acting in person throughout the proceedings.

5.  The wife was legally represented at the beginning but turned to handle the proceedings on her own in February 2021, a couple of months before the Financial Dispute Resolution (FDR) that was presided by HH Judge CK Chan.

6.  Parties failed to obtain a settlement at the FDR hearing of 16 July 2021; thereupon the learned judge gave directions for parties to prepare for the trial including the exchange of section 7 narrative affirmations. The Pre-trial Review (PTR) was fixed for 7 December 2021 with the trial fixed to take place on 12 and 13 January 2022, all to be heard before me.

7.  Subsequently, unknown to the husband and to the court, it transpired that the wife had returned to Vancouver since the failed FDR and did not return to Hong Kong for her claim until a year later, during which period no progress was made.

8.  On 7 December 2021, the wife failed to attend the PTR hearing. She also failed to comply with HH Judge CK Chan’s directions for trial.

9.  On 16 December 2021, the wife again failed to attend the adjourned PTR hearing.

10.  What followed were protracted correspondences between the court and the wife regarding the holding of hearing on 12 January 2022 by remote means.

11.  On 2 January 2022, the wife informed the court that due to adverse weather condition she would not be able to attend a business centre for remote hearing. Eventually, the trial had to be re-fixed to 24 August 2022 with a PTR hearing fixed for 25 July 2022.

12.  It was only on 25 July 2022 that the wife finally appeared in court; and the trial finally proceeded as scheduled.

13.  The twists and turns however did not end here.

14.  The trial was interrupted twice by typhoon no 8 signal on 25 August 2022 and 2 November 2022.

15.  What was more, it turned out that once again the wife had returned to Vancouver in the middle of the trial. This time she instructed another team of solicitors and Ms Law as counsel on 15 November 2022. Her legal team attended trial physically while she attended the hearing remotely. As the original courtroom was not large enough to house the remote hearing facilities, the original dates had to be re-fixed with some of the new dates being half-day sessions only.

Background

16.  Both parties are Hong Kong locals.

17.  The wife is currently 54 years old. She is of Chinese and English descent. After having completed her Form 5 education at the age of 17 in Hong Kong, she had worked as an insurance agent, a flight attendant, a receptionist and an administrator.

18.  The husband is 60 years old. When he was young, he received tertiary education in the United States. At about the same time (1984), his parents emigrated from Hong Kong to Canada. They first moved to Montreal and then re-settled in Vancouver. After the husband had obtained his BBA degree, he moved to join his parents in Vancouver and obtained a MBA degree from a prestigious university there. He became a Canadian Chartered Accountant in 1991.

19.  In 1992, the husband returned to Hong Kong to pursue his career in corporate finance where he met the wife.

20.  The parties married in Hong Kong in June 1995.

21.  The gave birth to two children. The eldest is a daughter, born in May 1996, and the younger is a son, born in September 2006. The children are currently 27 and 17 years old respectively.

22.  It would appear that the husband’s career was not plain sailing until he met a Mr MV, an investment banker. In about 2000, the husband resigned from his job and started an investment advisory business (which I shall refer to as the “DGV Business”) in which the husband owned 90% and the wife owned 10% of the shareholdings.

23.  The wife was also involved in the business but, apparently, her involvement was only limited to handling minor clerical or peripheral matters and acting as driver for the husband. Anyway, it seemed quite clear that the wife did not “work” in any real sense ever since the DGV Business had turned out to be a high-flying business.

24.  In 2009, the parties ceased their DGV business and immigrated to the United Kingdom. In order to obtain the immigration visa, they had to make an investment of £1 million.

25.  The husband had just stayed in the UK for about half a year. He then returned to Hong Kong. He said it was because of the time difference that staying in Hong Kong allowed him better management of his investment portfolios.

26.  The parties did not own any matrimonial home while in Hong Kong or in the UK. After getting married, they had stayed for about a year in the husband’s parents’ home on Bonham Road (the “Bonham Road Property”), and then rented various places.

27.  The DGV Business was clearly a successful one. The wife said at its peak a project of DGV’s business earned up to tens of millions of dollars and the husband at some point owned HK$70 million cash. Before moving to the UK, they were living in an apartment at Repulse Bay, with a size of 3,000 ft², at a monthly rental of $120,000, and being served by three domestic helpers and a chauffeur. They had the use of three cars (a Range Rover, a Porsche and a Toyota 7-seater). They were also members of 2 exclusive private/golf clubs.

28.  In less than two years (ie in about 2010/2011), the couple, together with the son, left the UK and immigrated to Vancouver where the husband’s parents were living while the daughter remained in a boarding school in the UK. They bought a premium 12,283 ft² property located in West Vancouver as their matrimonial home (“FMH”). It was bought for CAD 2.7 million (or about HK$16,470,000), without any mortgage, in the sole name of the wife.

29.  I was told throughout all these years they brought along one of their domestic helpers to the UK and Canada. They had the use of 3 cars in Vancouver: a Ferrari, a Tesla and an Audi Q8.

30.  In about 2015/2016, the husband moved back to Hong Kong but continued to travel back to Vancouver to see his family. The wife spent most of her time in Vancouver and stayed at the husband’s place in Hong Kong from time to time. There was a time from the end of 2018 to August/September 2019 when she returned to Hong Kong in exchange for the husband returning to Vancouver for taking care of the son. While in Hong Kong, the wife stayed at the husband’s home. I did not know why there was such an arrangement. The husband’s version is that the wife petitioned for divorce upon his return from Canada. As I shall explain later, what happened during the wife’s “stay” turned out to be influential on how the trial proceeded.

31.  Hence, since 2015/2016 the husband has been spending most of the time in Hong Kong, leaving the wife and the children in Vancouver. This situation remained largely the same up to now save that the daughter had moved back to UK since December 2019. She is financially independent.

32.  In November 2019, the wife petitioned for divorce on the ground of the husband’s unreasonable behaviour. She claimed to have found out the husband had an affair.

33.  On 22 January 2020, by consent, the joint custody of the son has been granted to the parties, with the son’s care and control be given to the wife and reasonable access be given to the husband.

34.  The main suit was uncontested; decree nisi was granted on 19 November 2020.

Exchange Rates

35.  Parties agree an exchange rate of CAD 1.00 : HK$6.1 and USD1 : HK$7.75 be adopted.

Dramatis Personae

36.  In addition to the husband and the wife, the following persons (in their pseudonyms) featured in evidence:

1.  “Madam NS”, the mother of the husband.

2.  “BC”, the daughter of the parties.

3.  “N Inc”, a company having an office in Hong Kong but listed in the United States as “Over-the-Counter” (“OTC”) Stocks.

4.  “Mr P”, an acquaintance of the husband and who apparently had an interest in or was a shareholder of N Inc.

5.  “Mr H”, believed to be an officer and a shareholder of N Inc.

The Main Issue in Dispute

37.  At centre of the dispute is the extent of wealth and the earning capacity of the husband.

38.  The husband consistently claims he has retired since 2009 (when the family immigrated to the UK) and has had no income. These can be seen in his Form E dated 24 March 2021.

39.  To the contrary, the wife claims the husband failed to make a full and frank disclosure of his financial situation. The wife’s complaints are two-folded.

40.  First, the husband has extensive experience in private investments; making investments has always been his full-time job. In addition to managing his own investment portfolios, he handles projects and investments for private clients. The husband has had enormous income from these activities that are not recorded for any tax purposes nor is there any business registration. As such, they have not been disclosed in the husband’s Form Es.

41.  Second, the husband has parked his assets under the name of Madam NS and BC. The assets that are formally under his name do not reflect the extent of his wealth.

Parties’ Open Proposals

42.  The parties are worlds apart in terms of remedies sought by them.

43.  The wife seeks a lump sum of CAD 3 million plus the entire interest in the FMH. She also seeks a monthly maintenance of CAD 3,000 for the benefit of the son and an order that the husband is to pay the son’s school fee and private tutorial fees until he finishes university education.

44.  The husband has his own ancillary claim. As the FMH is in the wife’s sole name, he seeks a 50/50 split of its interest. That said, the husband is agreeable to pay a monthly sum of HK$50,000 for household expenses that, I presume, cover both the wife and the son’s needs and is agreeable to be responsible for the education and related expenses of the son.

Documents Adduced by the Wife

45.  Before I start the section 7 exercise, I need to deal with some of the documents adduced by the wife.

46.  Shortly before trial on 18 August 2022, the wife exhibited the following documents to her Statement of Issues in Dispute on 18 August 2022:

Those relating to the husband’s financial situation

1.  A “Financial Needs Analysis” dated 17 May 2019 in which the husband disclosed his monthly income and the extent of his wealth for the purpose of application for an Insurance Policy.

2.  The husband’s “Application for Insurance Policy” dated 21 August 2019 that served the same purpose as item no 1.

3.  The husband’s “Premium Financing Overdraft Facility” form dated 19 August 2019 duly completed by the husband.

Those relating to N Inc.

4.  A Call Option Agreement dated 15 January 2020 signed between the husband and Mr P. I shall refer to this Agreement as “the Short Agreement”.

5.  A Stock Option Agreement dated 26 May 2020 signed between the husband and Mr P. I shall refer to this Agreement as “the Stock Option Agreement”.

6.  A Stock Purchase Agreement dated 18 January 2020 (“the Stock Purchase Agreement”) made between Mr P and Mr H.

Those relating to the husband and Madam NS

7.  Some copies of blank cheques signed by Madam NS.

8.  2 transfer slips in respect of Madam NS’s bank accounts.

9.  Madam NS’s statement of November 2020 with a securities company which I shall refer to as “SHKIS”.

10.  A Loan Agreement dated 14 September 2020 (“the Loan Agreement”) between Madam NS as lender and a company controlled by Mr P as borrower in respect of a loan of $1,900,000. The husband signed the Loan Agreement for and on behalf of Madam NS.

Those relating to the husband and BC

11.  Some Bank Deposit Confirmations in respect of BC’s bank accounts in January 2019.

Documents taken from the Husband

47.  The husband claimed some of the above documents, specifically, the 3 documents relating to the husband’s financial situation (item nos 1 to 3) and those relating to Madam NS and to BC, save and except the Loan Agreement (item no 10), were stolen from him.

48.  The wife did not dispute those were the husband’s documents (clearly, she could not); it seemed she did not deny the stealth allegation, too. She readily admitted having taken photos of Madam NS’s blank cheques (item no 7) at home.

49.  As I have alluded above, before the breakdown of the relationship, the wife returned to Hong Kong and stayed at the husband’s place from time to time; and there was a time stretching over a period about 10 months that she returned to Hong Kong in exchange for the husband’s taking care of the son in Vancouver. Based on this and from the documents complained of by the husband were all in existence during the relationship, the only logical inference that can be drawn is the wife must have taken these documents during that period, preparing herself for the ancillary relief claim.

50.  In Imerman v Tchenguiz and Others [2010] 2 FLR 814, on an application on the part of the husband for an injunction against the wife who had unlawfully obtained his documents, the English Court of Appeal held, inter alia, that the husband’s right of confidentiality had been breached and that the documents must be retained by the husband’s solicitors until further order or agreement.

51.  In the present case, it should be noted that documents nos 2, 4 and 5 had already been disclosed by the wife in her section 7 narrative affirmation as early as in February 2022, yet the husband took no action to enforce his right against the wife. The rest of the documents were only disclosed to the husband shortly before trial. Notwithstanding the husband was reminded that he should consider taking legal advice, he took no action throughout the protracted period of trial.

52.  It is patently clear that the wife had resorted to “self-help” well before she commenced the divorce proceedings. It was a calculated, premature and unlawful step taken by her. Her action was clearly premised on her belief that the husband would bound to have failed to give a full and frank disclosure of his financial situation. The husband’s right to the protection of privacy has been breached.[1] Fortunately, none of the documents in question could give rise to legal professional privilege. The wife was legally represented at the beginning of the proceedings. I acknowledge there is no evidence that the wife passed the information onto her first solicitors but I incline to believe she did.

53.  It is also claimed by the husband that the following documents were from questionable source. They are the 3 documents relating to N Inc, ie The Short Agreement (item no 4), the Stock Option Agreement (item no 5) and the Stock Purchase Agreement (item no 6) and the Loan Agreement (item no 10).

54.  These documents were post-separation so there was no way the wife could have taken them away when they were “living” together. It is significant to note that the authenticity of these documents were never disputed by the husband. This too applied to the Stock Purchase Agreement (enclosure no 6) to which the husband was not even a party. The husband said he did not have a copy of it but admitted he had had a sight of it. The wife was ambivalent as to how she came into possession of these documents. She vaguely mentioned that someone sent the documents to her by WhatsApp. Even if what the wife said was truth, I consider that, as far as the documents to which the husband was a party was concerned, his right of confidentiality had also been infringed upon. It might be that the wife was not the one who did the unlawful taking or disclosure but she was happy to take benefit from it. On that view, she is not in a different position from the wife in Imerman.

55.  Save and except those matters relating to the husband’s financial dealings with Madam NS and BC, nothing regarding these documents or the information contained were raised by the wife in her 2 Questionnaires dated 5 October 2020 and 30 June 2021 (filed on 12 July 2021). The majority of the documents were only made known to the husband and to the court when the trial was imminent. I have already referred to the twists and turns of the proceedings. The wife had had more than sufficient time to confront the husband about her case by way of Questionnaires but failed to do so. I believe the wife kept these documents up her sleeves, minding at putting the husband on the back foot, which should not be allowed. Her litigation conduct was not considered to be acceptable even under the old “rule in Hildebrand”. She failed to have made prompt disclosure to the husband of the existence of the documents: see the observations made in Imerman v Techenguiz & Others, at [48] and Hildebrand v Hildebrand [1992] 1 FLR 244.

56.  Therefore, the wife was wrong in resorting to unlawful self-help and in setting up an ambush.

57.  That said, consideration must be given to the fact that the husband and the wife were “living together” at the time of breach of confidentiality. Lord Neuberger MR (currently a Non-Permanent Judge of Court of Final Appeal) pointed out at [88] of Imerman v Techenguiz & Others that,

[88] The question must, inevitably, depend on the facts of the particular case. Thus, if a husband leaves his bank statement lying around open in the matrimonial home, in the kitchen, living room or marital bedroom, it may well lose its confidential character as against his wife. The court may have to consider the nature of the relationship and the way the parties lived, and conducted their personal and business affairs. Thus, if the parties each had their own study, it would be less likely that the wife could copy the statement without infringing the husband's confidence if it had been left by him in his study rather than in the marital bedroom, and the wife's case would be weaker if the statement was kept in a drawer in his desk and weaker still if kept locked in his desk. But, as we have already said, confidentiality is not dependent upon locks and keys. Thus the wife might well be able to maintain, as against her husband, the confidentiality of her personal diary or journal, even though it was kept visible and unlocked on her dressing table.

58.  The precise circumstances under which the wife obtained the documents were unknown. There is no allegation from the husband that his keys were taken away or locks were broken. The husband said the wife had his passwords to his computers but made an allegation at the very late stage of the trial that his computers in his homes both in Hong Kong and in Vancouver were essentially “seized” by the wife. As I shall explain below, the assertion of seizure is unbelievable and must be rejected. The facts of this case, in particular the husband’s evidence that the wife had his passwords, suggest that the wife had access to these documents without any difficulty. That being the case, the documents in question might have lost their confidentiality character as against the wife.

59.  The use of unlawfully obtained information must depend on the facts of the case that can be highly fact specific. It has been said at [170] and [171] of Imerman that,

[170] After all, the use in court as evidence of material which has been improperly obtained (whether in breach of confidence, tortiously, or even criminally) is permissible, though such use may be refused by the court or permitted only on terms. Subject to certain exceptions, notably information obtained by torture, the common law does not normally concern itself with the way evidence was obtained when considering admissibility: see R v Sang [1980] AC 402, [1979] 3 WLR 263, relying on Kuruma v The Queen [1955] AC 197, [1955] 2 WLR 223. Accordingly, in the present case, it appears to us that information derived from the documents obtained, albeit unlawfully, from Mr Imerman's computer records is, subject to questions of privilege and relevance, admissible in the ancillary relief proceedings. However, just because it is admissible, it does not follow that the court is obliged to admit it.

[171] Thus, it appears that, as a matter of common law, a judge often has the power to exclude admissible evidence if satisfied that it is in the interests of justice to do so: Marcel v Commissioner of Police for the Metropolis; Anchor Brewhouse Developments v Jaggard [1992] Ch 225, [1992] 2 WLR 50, at 265 and 70 respectively, per Sir Christopher Slade…

60.  And Lord Neuberger MR made the following conclusion at [177],

[177] Accordingly, we consider that, in ancillary relief proceedings, while the court can admit such evidence, it has power to exclude it if unlawfully obtained, including power to exclude documents whose existence has only been established by unlawful means. In exercising that power, the court will be guided by what is 'necessary for disposing fairly of the application for ancillary relief or for saving costs', and will take into account the importance of the evidence, 'the conduct of the parties', and any other relevant factors, including the normal case management aspects. Ultimately, this requires the court to carry out a balancing exercise, something which, we are well aware, is easy to say in general terms but is often very difficult to effect in individual cases in practice.

61.  Subsequent to Imerman, Thore LJ said the following in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315 ,

36. However ancillary relief proceedings are marked by features absent in other civil proceedings:

i) The proceedings are quasi-inquisitorial. The judge must be satisfied that he has, or at least that he has sought, all the information he needs to discharge the duty imposed on him to find the fairest solution.

ii) The parties owe the court a duty, a duty of full, frank and clear disclosure. The duty is absolute.

iii) Sadly the duty is as much breached as observed. The payer's sense of the obligation is distorted by the emotions aroused by the payee. Breaches take many forms.

iv) Breach by omission is commonplace. A bank account or some other asset is not declared. That tactic gives rise to the counter, filching and copying the contents of desk, briefcase or computer (now proscribed by the decision of this court in Tchenguiz v Imerman [2010] EWCA Civ 908, the effects of which have yet to be worked out).

62.  I summarize the guidance below:

(1)  The court’s role in ancillary relief proceeding is inquisitorial.

(2)  Parties have the duly to give full and frank disclosure.

(3)  Unlawfully obtained documents/information, subject to the questions of privilege and relevance, are admissible.

(4)  The court has the power to exclude admissible evidence if satisfied that it is in the interest of justice to do so.

(5)  In considering whether to exclude admissible evidence, the court has to carry out a balancing exercise.

(6)  In doing so, the court is guided by what is “necessary for disposing fairly of the application for ancillary relief or for saving costs”, the importance of evidence, “the conduct of the parties” and other relevant factors.

63.  Therefore, the wife’s unlawfully obtained documents are prima facie admissible, subject to court’s power to exclude them or part of them if it is in the justice to do so. As is evident from this judgment below, except the Short Agreement and the Stock Option Agreement, it is not necessary to give much weight to the information contained in these documents. The most crucial evidence came from the husband’s witness box, which evidence was inconsistent, self-contradictory, and hence destructive to his case.

Applicable Legal Principles

64.  The jurisdiction of the court in granting financial provision for a party and for a child of the family is governed by sections 4 and 5 of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”). Pursuant to sections 6 and 6A of the same legislation, the court has the power to grant orders for transfer, settlement or sale of properties.

65.  The principles upon which this case is to be considered are the conventional ones, namely those set out in section 7 of MPPO which confers a broad discretion on judges dealing with ancillary relief. That said, these principles are to be interpreted in the light of the Court of Final Appeal judgment in LKW v DD (2010) 13 HKCFAR 537. In that case, Riberio PJ referred to the four principles which are applicable to all ancillary relief proceeding, viz, (1) the objective of fairness: [56], (2) rejection of discrimination: [57], (3) the yardstick of equal division: [58] – [61] and (4) avoidance of ‘minute retrospective investigation’: [62] – [69].

66.  Ribeiro PJ further set out the steps to be taken by the courts in undertaking the exercise. In brief, they are:

(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].

67.  Lastly, I do bear in mind the reminder given by Thorpe LJ in Parra v Parra [2003] 1 FLR 942 at [22] that the proper judicial task of the court is to exercise a singularly broad judgment that obviates the need for the investigation of minute detail.

Identification of Assets

Earning Capacity of the Wife

68.  The wife has not been economically active in any real sense since the DGV Business in about 2000. It is not the suggestion of the husband that the wife has any earning capacity that she has to utilize it for her living.

The Wife’s Assets

69.  At the time of trial, the wife said she had nearly exhausted her monies on living expenses and had about CAD 50,000 to CAD 60,000 in the bank only. I take the average sum of CAD 55,000 (ie $335,500).

70.  When the wife filed her 1^st Form E dated 24 January 2020, she reported having the following major sums with banks:

	Account	Amount (HK$)	Amount (HK$)
1.	Hang Seng Bank Integrated Account	1,063,905
2.	Royal Bank of Canada	3,050,000
3.	HSBC InvestDirect in Canada	464,000
		Total:	4,557,905

71.  Starting from early 2020, the husband has been paying her $50,000 monthly for living expenses. If a period of 33 months is taken (from November 2019 to July 2022), this would give $1,650,000 ($50,000 X 33 months).

72.  Therefore, the monies available for the wife’s disposal during these 33 months was $6,227,905 ($4,557,905 + $1,650,000).

73.  The wife initially said she spent $600,000 odd on legal costs, but when being cross-examined by the husband, she changed to say it was about $800,000. Considering that when she acted on her own on 8 February 2021 the case had not even reached FDR, I would take the lower figure.

74.  The husband did not dispute that she lent $200,000 to a friend.

75.  Hence, on the wife’s own evidence from November 2019 up to August 2022 (a total of 33 months), if the legal costs and the loan were excluded and taking into account that she still had $335,500, the wife spent a total of $5,092,405 ($6,227,905 – ($600,000 legal costs + $200,000 loan + $335,500 bank balance)), or on average $154,315 per month.

76.  Considering the high standard of living enjoyed by the family during the relationship, the air-tickets, the lodgings at hotel for quarantine, the extra money paid to the helper for taking care of the son when the wife was in Hong Kong and the payment for a membership of a Vancouver Country Club of CAD 60,000 by instalments (the first instalment of CAD 10,000 was paid before November 2019), on the above analysis, I believe the wife’s report of her bank balances should be closer to the truth.

77.  Apart from the above, the wife had investment of $60,000 and a Tesla car that she assessed to worth $305,000 (CAD 50,000); these were not challenged by the husband.

78.  The wife agreed to the figure of $856,000 provided by the husband regarding the value of her insurance policies.

79.  The parties failed to agree over the wife’s personal valuables including some Rolex watches and diamond rings. The wife said they worth $1 million but the husband said they were as much as $3 million. No valuation report was ever submitted. I take the average sum of $2,050,000.

80.  The husband also did not challenge that the wife had credit card liabilities of $61,000.

81.  I assess the wife’s assets as follows.

The Wife’s Assets & Liabilities

	Description	Amount (HK $)	Amount (HK $)
1	Former Matrimonial Home	32,140,900
2	Bank Balances	335,500
3	Investment	60,000
4	Tesla Car	305,000
5	Insurance	856,000
6	Valuables	2,050,000
7.	Receivable (loan to friend)	200,000
		Sub-Total	35,947,400
	Liabilities
7	Credit Cards Liabilities	(61,000)	(61,000)
		Total	35,886,400

82.  I round up the figure to $35,900,000.

Financial Needs of the Wife and the Son

83.  The wife claimed her and the son’s general expenses are about $90,000 per month, and she and the son need $51,000 and $61,500 respectively as personal expenses, totalling $202,500 (or CAD 33,200). This total sum or the individual items did not meet with challenge by the husband.

84.  The wife conceded that after this litigation, it would not be necessary for her to travel back to Hong Kong on a more frequent and longer basis; and it would not be necessary for her to hire a live-in helper to look after her son. She estimated that her total monthly needs post-litigation should be less. They should be about $173,780 (or CAD 28,488). Again, this was not met with challenge by the husband.

85.  Considering the high standard of living enjoyed the family during the relationship, I agree this is reasonable figure. I round up the figure to $174,000. The son is living with the wife. Taking a board brush approach, I divide the figure equally between them. Each of the wife and the son’s monthly needs is therefore $87,000 ($174,000 ÷ 2).

Earning Capacity of the Husband

The Wife’s Case

86.  It is the wife’s case that the husband, being a seasoned investor, has been making a lot of money from his own investments and from managing investments for private clients.

87.  The wife mentioned in her affirmation dated 28 February 2022 that in 2016 a potential client of the husband visited their family in Vancouver a couple of times to get to know their family; the wife had to spend twice a week playing badminton with the clients’ wife before the client allowed the husband to be fully in charge of the business project. At the end, said the wife, the husband earned $36 million on that project alone. She even alleged the husband is a market maker (莊家) and a market manipulator. He manages shares on behalf of some fund managers. On his own admission, the husband’s monthly income is as much as $360,000.

The Husband’s Case

88.  On the part of the husband, in his Statement of Factual Issues in Dispute, the husband claimed to have “retired without pension, lives on savings…” He, however, acknowledged at trial that since 2009 after they had emigrated to the UK, he has been managing his investment portfolio, mainly in the form of stocks, foreign exchanges, bonds and sometimes, futures; 90% of his stocks are in Hong Kong and the rests are in the US and Singapore.

89.  He agreed that he returned to Hong Kong in 2015 alone for good for the reason that staying in Canada did not allow him to earn sufficient for his family.

90.  Back to Hong Kong, as the husband used to be a licensed financial adviser, he worked on some Pre-IPO investments projects but, unfortunately, no income whatever had been generated. His only sources of income were from managing his own and NS’s investment portfolios and the wife’s “InvestDirect” account with HSBC in Vancouver.

Discussion

IPO Subscriptions

91.  The husband’s evidence is that he frequently applied for IPO subscriptions that, depending on the demands, might or might not be successful. It would appear that on the husband’s own evidence, he had the practice of utilizing substantial sums for the subscription exercise. By way of an example, in February 2021, his securities company SHKIS returned $9.97 million to him after the applications, which, I presumed, were unsuccessful. On 9 February 2021, he paid SHKIS $5.23 million that, he said, was mainly for IPO subscriptions. The husband did not elaborate, apart from IPO subscriptions, what other purposes the monies were for.

92.  I acknowledge the above is just a snapshot but it does cast light on the modus operanti of the husband’s investments and supports the contention of the wife that the husband is an active investor.

The Financial Needs Analysis Forms

93.  The wife relied upon two documents that she unlawfully obtained from the husband in support of her contention that the husband earned as much as $360,000 per month and that there were hidden assets.

94.  The first is the Financial Needs Analysis dated 17 May 2019 (item no 1 under “Documents Adduced by the Wife) in which he reported having average monthly income of $360,000 and liquid assets of $45 million.

95.  The second is the Financial Needs Analysis dated 14 August 2019 (item no 2 under “Documents Adduced by the Wife) where the husband similarly reported to have average monthly income of $360,000. He reported having liquid assets of $22.5 million and property valued at $50 million, totalling $72.5 million.

96.  The husband admitted both were his forms. The 1^st form was filled out by his agent but signed by him. At one point, he said he informed the agent of the contents, but when it was pointed out by the wife that he reported having total liquid assets of $45 million, he changed to say he followed his agent’s words.

97.  It is husband’s evidence that he did not proceed with his application under the first form.

98.  I notice that the 2 forms were only 3 months apart but there were material inconsistences between them. The husband reported on the second form that he had a property worth $50 million but it was not so stated on the first form. He tried to explain he was referring to their FMH in West Vancouver.

99.  I accept that whilst the forms were said to be “declaration”, they were not vetted. They cannot be seen as if they were tax returns. I shall also give weight to the fact these documents relied upon by the wife were stolen from the husband. Her unlawful conduct should not be encouraged. Seen in this light, I decide to attach little weight on these two documents in so far as they relate to the husband’s assets.

100.  However, it is striking to note that the husband reported a monthly income of $360,000 in both documents when he said he had retired and he only managed his own investment portfolios. In this connection, I must have regard to the husband’s closing submissions where he said the $360,000 figure was just a rough estimate only and it accounted only for the average income for the 2 calendar years preceding May 2019 but “not for 5 or 10 or 15 years”.

101.  If $360,000 was just for two years, it begged the question of why the husband’s income mysteriously reduced to zero in just a few months’ time as reported in his Form E dated 13 January 2020. In my view, the husband’s admission that he made on average $360,000 per month cannot be ignored and should carry weight.

Living Standard

102.  The truthfulness of the husband’s testimony can be judged against the family’s living standard. When being asked by court why the husband decided to return to Hong Kong in 2015, he said he was not able to earn sufficient for the family. However, on his own evidence, back in Hong Kong he was not able to rebuild his clientele and business. Yet, at the same time, it was demonstratively clear that he was able to provide his family an affluent living on the other side of the Pacific Ocean. He was even able to provide CAD 60,000 for joining an exclusive country club in Vancouver.

103.  Taking all these into consideration, I am driven to the conclusion that it is likely than not that the husband by and large earns about $360,000 monthly. He has an earning capacity that is more than adequate for providing an affluent lifestyle for his family.

The Husband’s Assets

104.  The husband reported his assets in 2^nd Form E dated 24 March 2021 as follows,

	Assets	Amount (HK$)
1.	Banks	121,120
2.	Stocks	4,297,798
3.	Insurance	7,793,576
4.	Valuables (kept by the wife)	Nil
	Liabilities
5.	Credit Cards and legal fees	(310,439)
	Total:	11,902,055

105.  I round up the figure to $12,000,000.

106.  Before I deal with the more contentious grounds, it is convenient to deal with 2 minor assets at this juncture, namely, (1) the two companies and (2) the husband’s residence in Hong Kong.

The Two Companies

107.  There are two companies which no doubt are family assets but have no implication on the present section 7 exercise. The first is the DGB business. It has become dormant for over 14 years. The second is a company incorporated in British Columbia. It was established mainly for a real estate project that the husband had with Mr P in Vancouver Island. It is common ground that this business venture ended with a loss.

The Husband’s Residence in Hong Kong

108.  The husband has been living in an apartment since 2016. He said it is leased.

109.  It is the wife’s case that the husband once told her that he would buy his home in Hong Kong so she believed the registered owner was the husband’s mistress and was just a nominee. Later, Ms Law, counsel for the wife, retracted to say it is not the wife’s position that the owner was a mistress. Be that as it may, I am satisfied there is simply no evidence that the husband is the owner of his home in Hong Kong.

The Contentious Grounds

110.  The wife admitted that because of the husband’s professional qualifications, it was the latter who arranged the family’s finances and she relied upon him for living expenses. It was also for the same reasons that it was beyond her ability to know exactly how much assets the husband owns. However, she rejects the husband’s figures; she is sure that the husband has grossly understated his assets. From the information and documents she gathered, she estimates that the husband has assets well over $100 million, and even as much as $138 million.

111.  As referred to above, the wife relies upon two grounds.

112.  The first is the husband has amassed enormous assets from his investment activities. The wife specifically relies upon 2 transactions relating to N Inc that took place in 2020.

113.  The second is the husband has his assets parked under the name of Madam NS and BC.

Transactions Relating to N Inc

The Short Agreement and the Stock Option Agreement

114.  The husband was cross-examined on the Short Agreement and the Stock Option Agreement (item nos 4 and 5 under “Documents Adduced by the Wife”).

115.  Under the Short Agreement dated 15 January 2020 signed between Mr P and the husband, Mr P agreed to sell to the husband 900,000 call options for purchase of shares in N Inc at the exercise price of USD 25,650 (call option price at USD 0.0285 each and exercise price of USD 0.3 per share) for a term of 2 years, expiring on 20 January 2020.

116.  Under the Stock Option Agreement dated 26 May 2020, Mr P granted to the husband 900,000 options to purchase shares in N Inc at an aggregate amount of USD 27,000, being USD 0.03 per Option for one share. The exercise price was USD 0.65 per option. The options have a term of 3 years from 17 January 2020 and can be exercised by the husband in part or in whole at any time until 17 January 2023.

The Wife’s Case

117.  The wife said, according to public records, the highest market price of N Inc on 3 February 2020 was USD 5.00 per share. If the husband had exercised the options under the Short Agreement, the husband stood to gain USD 4,204,350.[2] Likewise, the husband’s potential gain from the Stock Option Agreement would be as much as USD 3,888,000.[3] Adding these two sums together would give a total profit of $62,715,713. This is the main reason why the wife claimed the husband owns assets as much as $100,000,000.

The Husband’s Case

118.  While the husband admitted he signed and dated the Short Agreement below his signature, he, however, asserted that this Agreement was invalid because Mr P did not date his own signature. In any event, the transaction never took place.

119.  The husband also acknowledged that he signed the Stock Option Agreement. He categorically denied that the Stock Option Agreement, that set out the terms and conditions in details, was the formal agreement for the Short Agreement. He said the Stock Option Agreement was signed pursuant to another preliminary agreement that was never before the court.

120.  The husband did not deny the share of N Inc had gone up to its peak at USD 5.00 per share on 3 February 2020 and that if he had exercised the options he would have made huge profits. He, however, said the trading volume of this company in open market was so low that it was virtually impossible for him to have reaped his profits; for instance, the public records produced by the husband (Exhibit D-1) showed on 3 February 2020 the trading volume was merely 2,800.

121.  The husband laid much emphasis on Clauses 4 and 5 of the Stock Option Agreement under which he was required to give written notice for exercising the Options or part of them before Mr P would execute the transfer and made an endorsement on the share certificates. It was upon all these procedures completed he would then be in a position to have the shares sold. These matters took time. Given this company had a very low trading volume; it would take about a month. He repeatedly emphasized that the low trading volume of this company would not have allowed him to sell the shares at prices above the exercise price; it was a waste of time exercise.

122.  In any event, said the husband, he “cancelled” the Stock Option Agreement by entering into a subsequent agreement dated 1 September 2020 with Mr P by which he sold the Options back to Mr P for USD 9,000; as a result of which he made a loss of $130,000. This agreement was a short agreement and was adduced by the husband in his trial bundle.

123.  Finally, the husband argued that these were post-separation transactions/assets.

Discussion

124.  Contemporaneous with the husband’s transactions with Mr P was the Stock Purchase Agreement dated 18 January 2020 (item no 6 under “Documents Adduced by the Wife”) made between Mr H and Mr P by which Mr H sold Mr P 873,674 shares in N Inc for USD 0.45 per share ie USD 393,153.30 at Closing (ie on 18 January 2020).

125.  It is significant to note that whilst the husband was not privy to this Agreement, he never doubted its authenticity. Indeed, he admitted he had a sight of it. The husband initially was firm to say that the Agreement was a “stolen” document. Yet, he admitted he was not in possession of a copy of it. He eventually conceded he had no basis to say the wife had stolen it from anyone.

126.  It seems that this Agreement somehow relates to the Short Agreement and the Stock Option Agreement.

127.  In the course of the husband’s evidence, various technical terms referring to the methods by which the shares of N Inc, being an “Over-the-Counter” (OTC) stocks, could be sold such as “block-trade”, “black pool” and “negotiated trade”, etc were exchanged and some of the practices on the sale and purchase of OTC stocks in the US were mentioned.

128.  At trial, when the wife was acting in person, the husband merely emphasized that the trading volume was so low that it was not possible for him to have purchased or sold 900,000 shares. He was adamant that even if he had exercised the option, clauses 5 and 6 of the Stock Option Agreement would have prevented him from catching a good time for profits. He repeatedly emphasised that in reality it was not possible to carry out the transactions.

129.  Subsequently, when Ms Law, who I understand was also a professional accountant, was involved as counsel for the wife, the husband was rather hostile to her and he was extremely defensive when being asked about these Agreements.

130.  He was evasive when being put to him that if the sale and purchase was carried out by way of “block-trade”, such as “black-pool” or “negotiated trade”, the relevant transaction would not be reflected in the open market. He eventually rejected these suggestions, saying that “black pool” may not be possible and he could not find a purchaser and a broker to effect the sale. All in all, the husband was adamant that he was not able to do all these. In any event, he had not given notice to Mr P and eventually he sold the option back to Mr P with a loss of $130,000.

131.  On his repeated assertion that in reality it was not possible for him to reap his profits, as I see it, then why he had entered into the Short Agreement and the Stock Option Agreement?

132.  According to the husband, he had known Mr P for 15 to 20 years. Mr P is also an accountant. It is clear that Mr P was close to the husband. The husband and Mr P had a failed joint investment on a piece of land in British Columbia in about 2012/2013. The wife said before 2017, she was given Mr P’s ATM card in Canada for withdrawal money (a maximum of CAD 10,000 per month) for her use. This was not disputed by the husband.

133.  The husband testified that he came to know N Inc as early as in about 2010. All along this company was listed OTC and its daily trading volume was low. He explained he thought something could be done to this company, such that this company could be elevated from OTC to Nasqad; in that event, the trading volume would have increased enormously so much so that he would then have the shares sold in open market.

134.  Hence, on his own evidence, the husband had been watching this company for about 10 years. It has to be remembered that the husband is a seasoned investor and a professional accountant. It must have been a calculated move on his part to enter into the Short Agreement and the Stock Option Agreement. On his own evidence, he thought something could be done to this company so that it could be elevated to Nasqad. The husband did not elaborate why he took the move as he did in early 2020 and what he planned to do in order to achieve elevation.

135.  The Short Agreement was for a term of 2 years. It is difficult to understand why this agreement, as alleged by the husband, was invalid merely because Mr P did not put down the date below his signature. There was no explanation at all from the husband.

136.  Likewise, the Stock Option Agreement was for a term of 3 years, expiring on 17 January 2023. There was no explanation from the husband why he had hastily and prematurely sold the options back to Mr P in just 7 months’ time.

137.  I must say the husband’s explanations simply did not make sense to me.

138.  According to the public records produced by the husband, from February 2020 to October 2020, the share price of N Inc was bouncing between USD 5.00 and USD 0.60. There were times when the price was USD 3.2 (on 10 February 2020), USD 2.50 (on 9 March 2020) and USD 1.70 (on 1 June 2020) that allowed the husband to reap his profits during that period. [4] In any event, the husband eventually had to agree that he had the right to exercise the options before he “cancelled” the Agreement on 1^st September 2020.

139.  In the analysis, I disbelieve the husband’s version. I find that he was not truthful and frank when being confronted with these Agreements. I reject the husband’s case that he did not exercise the options nor was he prevented by the terms of the Agreements in realizing his profits. I find, on balance, that the transactions he had with Mr P did take place. These could have been by way of “block-trade” such as through private negotiation or brokers, or simply by way of payment of monies by Mr P in lieu of transferring the shares as provided under Clause 6 (Alternative to Transfer) of the Stock Option Agreement.

140.  That said, I do not agree with Ms Law that the Short Agreement and the Stock Option Agreement represented two separate transactions. It seems to me that all along at issue were 900,000 options only.

141.  The precise amount of profit is unknown due to the non-disclosure of the husband. I shall return to this issue when I consider if adverse inference should be drawn against the husband.

The Husband’s Assets under Madam NS’s Name

142.  The husband’s parents used to operate a ceramic shop before immigrating to Canada in 1984. The parents initially settled in Montreal; they later moved to Vancouver in about 1991. That was about the same time when the husband decided to return to Hong Kong for his career.

143.  The husband’s father died in 2003. Madam NS continued to live at her property at Mackie Street, Vancouver until she returned to her hometown Chaozhou (潮州) of the Mainland in 2015. She settled there since then.

The Wife’s Case

144.  The wife said for the reason that Madam NS had resettled to Chaozhou, she was not treated as a resident under the Canadian law for tax purpose anymore. This opened the gate for the husband to open various bank and securities accounts in the name of Madam NS to serve the husband’s own investment and business purposes. Since the wife at all times remained a Canadian resident, she was not available for account openings during the relationship. Her mother, a Hong Kong resident, was requested to do so too but she refused.

145.  The wife said the husband maintained 22 accounts in the name of Madam NS. They were in different currencies and for different purposes. All the monies there belonged to the husband. Her mother-in-law was already 85 years old at the time of trial. She had a number of health issues; she was blinded on the left-eye and suffered from diabetes, high blood pressure, foot problem and lymphoma. The wife even alleged Madam NS had mental problem. Hence, it was not necessary for her nor was she capable of maintaining so many accounts. In any event, Madam NS was not a wealthy person. There was no way that she could have so much monies. Madam NS’s contact number with the banks and financial institutions was the husband’s number. During the relationship, the husband even asked the wife to pretend to be Madam NS to speak to the bank.

146.  In support of her contention, the wife relies upon the documents she unlawfully obtained from the husband. They are the blank cheques signed by Madam NS (item no 7), the 2 transfer slips (item no 8), Madam MS’s Statement of November 2020 with SHKIS (item no 9) and the Loan Agreement (item no 10). In respect of the Loan Agreement, the wife said at the time of signing of it Madam NS was in Chaozhou.

The Husband’s Case

147.  The husband asserted that the wife knew nothing about his mother. Her relationship with his mother was bad even before the latter’s departure from Canada in 2015. Since then, the wife has had no communications with his mother at all.

148.  Contrary to what the wife depicted, the husband portrayed Madam NS as a very active and capable person; she was good at investment. When the husband was young, his mother taught him how to invest in shares, gold and foreign exchanges.

149.  The husband agreed there were various accounts opened in the name of Madam NS. These were for IPO subscriptions and for swapping the monies for higher interest rates. He managed his mother’s investment portfolio. He was equipped with a Power of Attorney to operate the accounts for his mother. That said, the husband claimed it was not possible for him to operate Madam NS’s account on line because of the security measure of “double authentication code” that had to be sent to her mobile phone.

150.  The husband explained that the accounts were for IPO subscriptions and for swapping the monies from one bank to another for higher interest rates. He managed his mother’s investment portfolio.

151.  His evidence appeared to be that his funds intermingled with those of his mother from time to time because he said some monies in his bank accounts belonged to Madam NS and vice versa.

152.  His mother was a wealthy person. His parents immigrated to Canada on the ground of investment or entrepreneurship. Their Bonham Road Property (also the parties’ matrimonial home at the beginning of the marriage) had been sold. The proceeds of sale were then used for paying up the parents’ home at Mackie Street in Vancouver, which was in the joint names of Madam NS and the husband. The Mackie Street property had since been sold before Madam NS’s return to the Mainland. She bought a block of building in Chaozhou and had it renovated by herself. Hence, it was utterly untrue for the wife to have said Madam NS was never wealthy.

Discussions

153.  The monies in Madam NS’s accounts prima facie belonged to her. The wife has the onus of proving that these, or at least part of them, were the husband’s own monies.

154.  Parties spent substantial time on the finances of the husband’s parents dating back as early as in the 1980s when they immigrated to Canada; and certain money matters between the husband and his parents. All these happened way before their marriage, and at most at the early stage of it. I fail to see the relevance.

155.  Initially, the wife said Madam NS was never wealthy. Under cross-examination, she reluctantly accepted that she was incorrect on this. Ms Law, on behalf of the wife, conceded her final positon is that the mother had some monies but not utterly wealthy as being depicted by the husband. Most of the monies under her name belonged to the husband.

156.  In my assessment, it is a concession correctly made. On the facts that the parents were in business, that they immigrated to Canada under the investment or entrepreneurship category, and that the Mackie Street property had been liquidated, it is quite clear that Madam NS is not a person without money.

157.  The wife admitted that she did not have a congenial relationship with Madam NS. She quarrelled with her when the mother-in-law was staying at their matrimonial home briefly before returning to Chaozhou. She did not even see Madam NS off at the airport when she left in 2015. Under cross-examination, the wife conceded that her mother-in-law did not have any mental problem and did not contest the husband’s suggestion that she had not seen Madam NS for 8 years.

158.  That said, it does not necessarily mean what the wife said about the husband’s dealings with his mother were fabricated out of her imagination. I accept the wife’s evidence she had more blank cheques back at her home in Vancouver. Madam NS was asked to sign these cheques in 2015 for the husband’s projects and the wife was given these cheques by the husband. On evidence, I accept the wife’s explanation that she knew all these from the husband. It has to be borne in mind that even on the husband’s part, he admitted there was at least once when he asked the wife to pretend to be Madam NS to speak to the bank. Their relationship only broke down in about 2018/2019 when the wife discovered that the husband had an affair.

159.  It is clear that the wife knew the overall picture of the husband’s business and his financial situation well. As Dunn J made the following observations in B v B (Matrimonial Proceedings: Discovery) [1978] Fam 181,

“It is another feature of such proceedings that one party, usually the wife, is in a situation quite different from that of ordinary litigants. In general terms, she may know more than anyone else about the husband's financial position; she will know at first hand of the standard of living of the family during the marriage; she will know about the furnishings and equipment of the matrimonial home, and of the physical possessions of the husband, and perhaps the approximate amount of cash kept in the house. She may also know, from conversations with the husband in the privacy of the matrimonial home, the general sources of his wealth and how he is able to maintain the standard of living that he does. But she is unlikely to know the details of such sources or precise figures, and it is for this reason that discovery now plays such an important part in financial proceedings in the Family Division.”: at 191E/H.

160.  The husband admitted he made use of his mother’s $6 to $7 million for the purchase of a life insurance policy that gave him 4% return annually and he pledged the insurance policy for an overdraft facility of $11 million from the Chiyu Bank for investments such as for IPO subscriptions. There is thus evidence that the so called “the mother’s funds” intermingled with those of the husband. Yet, there is no evidence that the money for the purchase of the insurance policy was from Madam NS nor is there any evidence in support of the husband’s contention that he repaid his mother already.

161.  Another piece of evidence is the admission of the husband that some monies in his bank accounts belonged to Madam NS. Similarly, some monies in Madam NS’s bank accounts were in fact his monies. This happened when he had to make use of Madam NS’s account for time deposits.

162.  The husband had a Power of Attorney from Madam NS. I bear in mind the husband’s testimony regarding the security measure of “double authentication code” that would prevent him from operating Madam NS’s accounts on-line. I am sure the husband had ways to deal with that if his mother’s contact number is his own number.

163.  The husband testified on 20 December 2022 that he kept tracks of how much money his mother had with him by way of jogging down some handwritten draft or sketch (草稿) and presented the same to his mother together with verbal reports. He expressly made it clear it was not in “Excel” form. He had the practice of throwing the sketch away after his mother had a sight of it. He last reported to his mother in end of September or October 2022 when she came to Hong Kong. At that time, he reported that inclusive of interest earned from time deposits and the loan to Mr P under the Loan Agreement, Madam NS had about $7 million with him and he had no money of his own placed with his mother.

164.  However, shortly afterwards on 30 January 2023, the husband forgot what he had said about the figure and claimed his mother had well over $10 million with him. When the discrepancy was being pointed out by this court, the husband tried to explain by saying that his records were kept in his personal computers (more than one) at his homes both in Hong Kong and in Vancouver. The wife took away all his documents and his computers both in Hong Kong and Vancouver. She knew his computer passwords and gained access to all his documents. The wife then destroyed them and threw them into the sea.

165.  Strikingly, the husband mentioned on 19 July 2023 that it was his cell phone but not his computers that was taken and thrown away.

166.  I have since heard the recording of the court proceedings. The husband confirmed more than once on 30 January 2023 that it was his personal computers that were taken away.

167.  It can readily been seen the husband’s evidence is not only confusing and contradictory but is utterly unbelievable. Regardless of whether it was the computers or the cell phone, it must have been a traumatic event causing him immense inconvenience, if not difficulty, in his daily lives as an investor. Yet, he admitted he did not disclose or mention this incident before; and for reasons that he did not explain, he maintained that this incident (if true) did not impede his ability to make a full and frank disclosure of his financial position.

168.  The only conclusion I am able to come to is the husband was making up his evidence along the way. His evidence is a pack of lies.

169.  This brings me to the Loan Agreement dated 14 September 2020 made between Madam NS as lender and a company controlled by Mr P as borrower regarding a loan of $1,900,000. The husband claimed the loan money came from Madam NS and he had obtained her approval before signing the Loan Agreement on her behalf. When being asked about Mr P’s financial background, the husband was evasive and claimed as a friend he might not be able to be entirely clear about his financial position on a daily, monthly or yearly basis.

170.  The husband, under cross-examination, mentioned that, under his arrangement, there was another loan intended to be advanced by Madam NS to one Mr Leung for $1 million. This transaction eventually did not go through.

171.  It might have been the case that Madam NS was an astute businessperson and active but she was already 85 years old at the relevant time. I agree with Ms Law that the question is, given her advanced age and being away from Hong Kong for over 40 years, why she had to maintain so many accounts with active movements and lent a substantial sum to someone she did not know and whose financial background her son was not clear.

172.  The wife first raised the issue of Madam NS accounts (not the Loan Agreement) in her 1^st Questionnaire dated 5 October 2020 and repeated it in her 2^nd Questionnaire dated 12 July 2021. There was no reply from the husband.

173.  On the above analysis, the only logical conclusion I can come to is that the husband has been hiding his assets in Madam NS’s accounts. I determine:

(1)  that the husband made use of Madam NS’s accounts for his investments and business projects as claimed by the wife; and

(2)  that the husband has failed to give a full and frank disclosure regarding his dealings with Madam NS, specifically, the amount of monies he had in Madam NS’s accounts.

174.  I accept that Madam NS is not a person without money. I could not rule out the possibility that the mother might have some assets being managed by her son for her benefit. However, for the reasons that I have elaborated, I believe the amounts should not be as substantial as the husband may wish the court to accept. In this connection, it has to be borne in mind that the mother already spent her monies in purchasing a block of building in Chaozhou and had it renovated. I am also conscious that there were likely to have some overlaps and double counting of funds arising from interbank transactions.

The Husband’s Dealings with BC

175.  Same as her case regarding Madam NS’s accounts, the wife puts forward the same case regarding BC’s accounts in Hong Kong. All monies in their daughter’s accounts are as part of the matrimonial assets.

176.  The wife said that there were 2 accounts opened in the name of their daughter in the sums of $5.136 million, $600,000 and $700,000 odd. She relied upon some stolen Deposit Confirmations issued by the banks in respect of BC’s bank accounts in January 2019 (item no 11 under “Documents Adduced by the Wife”).

177.  The wife mixed up the dates when the accounts were opened. She initially said the accounts were opened in 2019 when the whole family returned to Hong Kong for vacation. At that time, BC was already 23 years old. Later, she corrected that it should be 2015. In any event, the wife accepted that the husband transferred the money back to his accounts, though she did not know if the husband continued to operate them.

178.  The husband accepted the monies were family assets. The occasions mentioned by the wife were the only ones. As BC at the relevant time was a Canadian resident, she was not happy about the possible tax implications. He therefore ceased the operation.

179.  I accept the husband’s explanation. There is no evidence that there are assets being held under the name of BC.

The Husband’s Failure to Give Full and Frank Disclosure

180.  Plainly, the husband has been opaque in his approach to financial disclosure. It is patently clear that the husband is not a retiree without any income.

181.  I reject his case that he managed his and Madam NS’s portfolios only and his attempts to have pre-IPO investments projects were not fruitful. From the transactions in relation to N Inc, the Loan Agreement, from his knowledge on the Stock Purchase Agreement and from all these accounts opened in the Madam NS, I find he has been actively involving in business activities.

182.  Apart from the stock option transactions and the dealings with Madam NS, Ms Law drew my attention to the fact that the husband did not disclose any of his statements with his securities company SHKIS, the Fubon Bank account and of his insurance policies. Indeed, the SHKIS account was not even mentioned in the husband’s Form Es. It transpired that there were substantial transactions between the SHKIS account and the husband’s Chiyu Bank account.

183.  The duty of full and frank disclosure is onerous; it is an absolute and continuing one. Rayden and Jackson on Relationship Breakdown, Finances and Children states at [13.101].

  The importance of the duty of both parties to make disclosure of their assets which is full, frank and clear cannot be overemphasised. Unless a court is provided with correct, complete and up-to-date information on the matters to which, under the MCA 1973, s 25, it is required to have regard, it cannot lawfully or properly exercise its discretion in the manner ordained by that section. The duty on each party is absolute, and it must be discharged regardless of whether the application for a financial remedy is adjudicated upon by the court after full evidence has been heard, or settled after an exchange of financial information between the parties leading to a consent order. The duty is also a continuing one: a party must not mislead the other party and the court into assuming that his financial situation is unchanged if in fact it has changed. Any material changes in the financial situation of either party occurring between the filing of their Form Es and the final dispatch of the claims by the court must be brought to the notice of the other party and the court at the earliest opportunity. A party who seeks to negotiate and secure a settlement without informing the other party about a material change in his or her financial circumstances runs the risk that, if a settlement is reached and a consent order is made, the consent order will be set aside by the failure to provide full, frank and timely disclosure. Shortcomings in disclosure will be visited by orders for costs against the offending party, often on the indemnity basis. Furthermore, deviation from the standard of disclosure required may be visited by the court drawing adverse inferences against the party in default.

184.  As I have demonstrated, the husband attempted to cover up with lies. Due to the husband’s failure, the court is being placed in a very difficult position, as it simply does not have a good idea of the extent of the husband’s wealth. What can be certain is the husband owns assets much more than he is willing to admit.

185.  As I said at [84] of CCYL v CCSR (Ancillary Relief) [2022] HKFLR 448, [2023] 1 HKC 335, [2022] HKFC 238, the court should be careful to ensure that the husband’s failure does not give rise to what is called a ‘cheat’s charter’ as Dame Butler-Sloss P put it in Baker v Baker [1995] 2 FLR 829 (CA) and quoted by Mostyn J in NG v SG (Appeal: Non-Disclosure) [2011] EWHC 3270 (Fam), [2012] 1 FLR 1211. If the drawing of adverse inferences is to be too conservative, unfairness would be visited on the claimant giving rise to what might be termed a non-discloser’s dividend: NG v SG (Appeal: Non-Disclosure). I accept that the court must be astute to avoid this unfairness and that a strong message must be sent out 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. But the court must be realistic and there must surely be some finding, soundly based on admissible evidence, as to the broad extent of the hidden funds. This finding can be as broad or precise as the facts of the case demand.

186.  Mostyn J summarised the relevant principles in NG v SG (Non-Disclosure) on how adverse inferences are to be drawn:

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

(i) The Court is duty bound to consider by the process of drawing adverse inferences whether funds have been hidden.

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

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

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

(v) The Court will then look to the scale of business activities and at lifestyle.

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

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

(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 into making an order that is unfair to the Claimant.

187.  In the more recent case of Moher v Moher [2019] EWCA Civ 1482; [2020] 2 WLR 89; [2020] 1 FLR. 225; [2019] 3 FCR. 244, the 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.

188.  On the analysis that I have set out, I consider the present case is one where such adverse inference could be properly and reasonably drawn. I am prepared to draw adverse inferences against the husband that he has substantial undisclosed assets. It has been said where a party had 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 [191(2)].

189.  In respect of the dealings in relation to N Inc, the best conjecture I can make on the basis of the material before me is to work on the supposition that the husband was able to have reaped his profits at USD 2.50 per share (ie half of the peak price USD 5.00) pursuant to the Stock Option Agreement. This gives a sum of USD 1,638,000 or $12,694,500 (USD 2.50/share – (USD 0.03 (cost of share option) + USD 0.65 (exercise price)) x 900,000 shares).

190.  As regards the monies held under the name of Madam NS, once again, a precise figure on how much money the husband has parked with his mother is impossible to obtain due to the lack of candour on his part. From the husband’s attempt to lead the court to believe that Madam NS had well $7 million or $10 million with him, I extrapolate the amount is likely to be significant. The wife reckoned from the bank statements that the amount was in the region of $8.6 million.[5] I adopt the wife’s figure.

191.  Therefore, on the top of the husband’s figure of $12,000,000 as reported in his Form E, $12,694,500 and $8,600,000 have to be added to his side. This comes up to $33,294,500. I round it up to $33,300,000. I also need to factor in the “cheat’s charter”. This leads me to a round up figure of $34,000,000.

Total Matrimonial Pot

192.  The total matrimonial pot is therefore worth $69,900,000, with $35,900,000 under the wife’s name (51.36%) and the remaining $34,000,000 (48.64%) under the husband’s control.

Financial Needs of the Husband

193.  The husband stated in his Form E of 24 March 2021 that his monthly needs were $148,000. This was not challenged by the wife. Excluding the monthly expenses of $18,400 for the son and the interim payment of $50,000 to the wife, this comes down to a monthly sum of $79,600.

194.  With the arrival of the matrimonial pot, I hear the rattling of keys to unlock this section 7 exercise.

Deciding to Apply the Sharing Principle

195.  I have found the husband’s monthly earnings are broadly in the region of $360,000; this alone has been able to provide the family with a comfortable living. I am aware the husband is already 60 years old. Nevertheless, I do not see how his age could adversely affect his investments and hence his earning capacity. Indeed, on his own version, he has already retired since 2009. He would in all likelihood be able to generate his wealth in the same fashion as he did during the relationship.

Whether good reasons for a departure from equality exist

196.  This is a marriage lasting for 24 years with 2 children; each had contributed his or her due share to the family and to the raising of the 2 children prior to the breakdown of the relationship. The wife also involved in the business of the DGV Company that used to be fountain of their fortune. The present case is one that seems to me equal division is just and fair to both parties.

197.  There are two factors that require consideration, viz, (1) the wife’s financial needs and (2) if the dealings relating to N Inc were post-separation, hence non-marital.

The Wife’s Financial Needs

198.  “Fairness” is the main theme running through all ancillary relief cases. It is easy to say but in reality, since each family is unique, it is a taxing exercise for family courts to achieve an outcome that is fair between the parties. Lord Nicholls in Miller v Miller, McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618 identified three elements or strands on how family assets are to be divided fairly, they are (1) financial needs, (2) compensation and (3) sharing: see [4] – [20].

199.  The wife is 54 years old. She is still relatively young, apparently in good health and should still have many years to go. The wife has since the early days of the marriage been relying on the husband for living. The parties positioned themselves different roles in the family: the wife was the homemaker and the husband the breadwinner. Against the background of this family and the standard of living enjoyed during the relationship, the wife in reality virtually has no earning capacity. Nor has this been the husband’s suggestion that the wife has to work to support herself. Her post-divorce financial needs therefore has to be borne in mind. On the other hand, the husband has always been the breadwinner of the family and he, as I found, continues to enjoy high earning capacity and should be able to generate his wealth in the same fashion he did before. Fairness requires that the wife’s financial needs have to be considered: see section 7(1)(b) of MPPO.

200.  I have assessed the wife needs $87,000 per month, which means a yearly sum of $1,044,000. I capitalize this spousal maintenance at 7 years; this gives a sum of $7,308,000. This is about 10.45% of the matrimonial pot. Taking a board brush approach, I would tentatively allow the wife an additional 10% of the matrimonial assets. This would mean a departure from equal division.

Dealings relating to N Inc

201.  The husband argued that the transactions regarding the Short Agreement and the Stock Option Agreement were post-separation; as such they were non-marital. I can dispose of this issue quickly.

202.  It is true that in terms of the timeline, the transactions took place in 2020. But it was only a few months after the breakdown of the relationship. On the husband’s own evidence, he had known N Inc since 2010, it is more likely than not that the negotiations and the move to engage into the transactions must have happened well within the relationship. The other side of the coin is that the lapse of time was not long enough to taint the profits in a colour different from those of matrimonial assets: see Rossi v Rossi [2006] EWHC 1482 (Fam), [2007] 1 FLR 790.

Deciding the overall outcome

203.  While the factors that have been discussed above are individually or cumulatively capable of resulting in a departure from an equal division, a finding that one or more of those factors are engaged does not necessarily mean that a departure must occur. The court is required to give an examination of the overall picture.

204.  A clean break is to be encouraged wherever possible: VP v JP [2008] EWHC 112 (fam), [2008] 1 FLR 742, at [59]. At the same time, I do bear in mind the remarks made by Baroness Hale in Miller v Miller and McFarlane v McFarlane that too strict an adherence to equal sharing and the clean break can lead to a rapid decrease in the primary carer's standard of living and a rapid increase in the breadwinner's: [142].

205.  I am of the view that family assets are sufficient to achieve a clean break that is just and fair in the circumstances.

206.  I have quantified the family assets at $69,900,000. I have come to the tentative view that the wife should be given an extra 10% of the matrimonial assets. I remind myself of the risk of double counting. At the same time, I also have to remind myself of the husband’s high earning capacity and that due to the husband’s failure to make a full and frank disclosure, this is merely an estimate. It may well be the case that the husband is in possession of more assets.

207.  If the tentative adjustment discussed above is given effect, the wife will have $41,940,000 (60%) of the assets; and the husband will have $27,960,000.

208.  Having regard to all the circumstances of this case and on the above analysis, I believe a 60/40 division of the assets is a fair financial outcome for the parties.

209.  The wife is already in possession of $35,900,000. The husband therefore has to pay an equalization money of $6,040,000.

Maintenance to the Son

210.  It has always been the husband’s responsibility to maintain the son. The son’s monthly needs are $87,000. This is the monthly maintenance that the husband is to pay.

Orders

211.  I therefore make the following orders:

(1)  The husband do pay the wife a lump sum of $6,040,000 within 21 days of the decree absolute; and

(2)  The husband do pay the wife a monthly sum of $87,000 for the benefit of the son, the first payment to be made on 1^st May 2024 and thereafter on the 1^st day of each and every month until the son reaches the age of 18 or completes full time education, whichever is the later.

Costs

212.  The wife has succeeded substantially with her claims. Normally, costs should follow the event. Further, the husband is found to have failed to give a full and frank disclosure of his financial situation; there are judicial authorities that he should pay costs on indemnity basis: ML v YJ (No. 2) (Stellar Contribution) [2009] HKFLR 122 and Hashen v Ali Shayif [2009] 2 FLR 896.

213.  There are 3 factors that I need to take into consideration.

214.  The first is no doubt the litigation misconduct of the wife in relation to the unlawfully obtained documents. I think the court should send out a clear message that such misconduct is unacceptable.

215.  The second is the extra time and costs occasioned by the involvement of the wife’s second legal team in the middle of the trial.

216.  When Ms Law became the wife’s counsel, the husband was in the middle of his cross-examination. She sought leave to add 7 bundles of bank statements. I was told these documents had long been produced by the husband. Since the wife previously acted in person, she was not aware of the need to include these documents. I did not think it was fair to the husband if the wife was allowed to do so. At the end, I granted leave for some selected bank statements previously produced by the husband in his Form E and Answers to be included.

217.  Ms Law attempted to cast the net as wide as possible and to re-do the cross-examination by essentially conducting extensive examination afresh. Many of her questions were in areas not on documentary evidence, the wife’s 2 Questionnaires or foretold in her Lists of Issues and Opening Submissions.

218.  The husband was asked of his work and business experience dating back the earliest days of his career and before the family’s emigration to the UK. He was asked about a BVI (not in any of the wife’s evidence) that the husband said was long dormant since leaving for the UK. It is clear that the wife was well prepared for her ancillary relief claim before taking out her petition for divorce. It is to be remembered that the parties’ relationship only broke down in about 2019. I am sure the wife would have known and would have obtained the documents if the husband had any active BVI company during the proceedings.

219.  The husband was asked about his investment strategies: if the husband engaged in short term or long term trading. He was taken at lengths to some of the 2019/2020 inter-bank transactions of substantial sums that were not raised in any Questionnaires. In my view, this is highly unsatisfactory and the way in which the wife conducted her claim should not be encouraged. Giving evidence in court is not a memory test.

220.  The third is the wife’s repeated absences in case management hearings and her failure to adhere to directions preparing for trial.

221.  If I stop here, I would decide that, in fairness to the husband, he should be ordered to pay the wife half of the costs of the ancillary relief proceedings. However, it has to be recalled that the wife has already paid legal costs of $600,000 to her first legal team out of the family assets. There would be double counting and the wife would stand to gain if the husband is to pay half of her entire legal costs. For this reason, I determine that the appropriate costs order is no order as to costs (including all costs reserved). This is by way of a costs order nisi.

Section 18 (MPPO) Declaration

222.  Lastly, I make the section 18 declaration.