LKB v. FCM

FCMC 12181 of 2015

[2020] HKFC 31

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 12181 of 2015

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BETWEEN

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D E C I S I O N

(Discovery)

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The Application

1.  By way of summons filed on 1 August 2018 (“Present Summons”), the petitioner (“wife”) seeks financial information and documents from the respondent (“husband”).  The wife’s requests are set out in a draft questionnaire (“Third Questionnaire”). 

2.  The Third Questionnaire encompasses 11 areas and 62 questions (and a number of sub-questions).  They are the questions the husband refused to answer at the first appointment hearing on 6 March 2018 and the questions to follow up the husband’s Reply (to the wife’s second questionnaire) dated 27 April 2018.

3.  In response to the Present Summons, the husband filed his second affirmation on 29 November 2018 (“Second Affirmation”).  The Second Affirmation contains 27 pages and its exhibits run up to 593 pages which provides some of the documents and information sought by the Present Summons.  Nevertheless, the wife considers that there are still plenty of requests remain unanswered. 

4.  At this hearing, the wife withdraws Questions 1(d)-(e), 7, 12(C), 17, 23, 26, 27, 29, 36-38, 42, 43, 47-49, 54(d), 55, 57(b), 57(d) and 58 (Question 60 is missing) but continues her other requests as set out in the Third Questionnaire (“Disputed Questions”).

5.  Other than Question 56, the husband refuses to provide the information or documents as sought by the Disputed Questions on the ground that they are either irrelevant and/ or unnecessary for disposing fairly of the matters in issue or for saving costs or oppressive.

Background

6.  The husband is now aged 57 and the wife is 44 years old.  They got married in 1998.  Three children were born to the marriage.  The eldest child is now aged 19 and the twins are 16.  All of them are still in full-time education.

7.  In October 2014, the wife issued a petition for divorce (“Previous Petition”) but withdrew it subsequently.  She commenced the present proceedings by filing the petition for divorce and ancillary relief in September 2015 (“Present Petition”).

8.  For disclosure of documents, the husband filed his Form E (“First Form E”) and second Form E (“Second Form E) on 16 November 2015 and 8 March 2016 respectively.  Not satisfied with the husband’s disclosure, the learned Deputy District Judge D Cheung made a disclosure order on 12 July 2016, which was followed by a disclosure affirmation of the husband as well as two rounds of questionnaire-and-Reply between the parties.  The wife is not satisfied with the disclosure of the husband, hence, the Present Summons.

9.  The common ground of this case is that the husband has financial interests in a number of companies including, inter alia, the following 6 companies : -

(a) the BWD Limited : the husband is the sole director and shareholder of it.  It was the registered owner of a landed property in Wanchai;

(b) the FS Limited : the husband and the wife are the shareholders of it.  The husband is its sole director.  It is the registered owner of the matrimonial home;

(c) the H Engineering Limited (“Engineering Limited”) : the husband is the sole shareholder and sole director of it;

(d) the H Building Company (“Building Company”) : the husband is its sole owner.  It is a company with unlimited liability.

(e) the L Limited : the husband and his business partner are the only two directors and equal shareholders of it. 

(f) the W Limited : the husband owns 24% shareholdings of it.  He is not a director of it.  

((c)-(d) collectively the “2 Wholly-owned Companies”)

((c)-(f) collectively the “Four Companies”)

10.  On 20 January 2017 and 9 February 2017 respectively, the parties’ jointly appointed expert (“Joint Expert”) completed the valuation reports of the Four Companies.  According to the expert report, the Joint Expert took the 12-month net profits of the companies to evaluate the value of the husband’s shareholdings of the Four Companies.  Subsequently, at the request of the parties, the learned Deputy District Judge D Cheung  granted leave to the parties to seek further opinion on the evaluation from the Joint Expert.  The areas for further opinion have yet been finalized.

The Matters in Dispute

11.  It is the wife’s case that soon after the issuance of the Previous Petition, the husband had used their matrimonial home to obtain banking facilities totaling HKD22 million for the L Limited and the Building Company without her consent.  She only found this out from his First From E.  He has not properly accounted for the whereabouts of such loans.  (“Home-Loan Issue”).

12.  Further, in or about February 2017, she accidentally discovered that the husband had paid for the family expenses (from October 2012 to December 2015) with the bank cheques issued by various companies : -

(a) HKD901,000 from the Engineering Limited;

(b) HKD116,000 from the Building Company;

(c) HKD400,000 from the AWE Limited;

13.  She complains that not only the husband has not accounted for the relationship between the AWE Limited and him, he has not explained for the circumstances under which those payments were made by the various companies for him.  His explanation that those payments “might form and/ or be recorded as part of the respondent’s remunerative payments and/ or loans made to the respondent” raises serious doubts on his financial status.  In particular, for the period between April 2014 and March 2015, five cheques were issued by the Engineering Limited, totaling HKD281,000. However, neither the audited report of the Engineering Limited nor the tax return of the husband has reported receipt of any director’s emoluments or shareholder’s dividends from the Engineering Limited for the same period. The net profit of the Engineering Limited was reported to be HKD114,337 only.

14.  On the other hand, the only income he reported in his tax return for the same period was HKD692,000,  being his monthly salary of HKD57,667 as the manager of the Building Company. No other income from any other companies was reported.  Coupled with his monthly expenses were reported to be HKD145,266, his monthly overspending would have been HKD87,599.  The wife therefore argues that his over-spendings for the past few years indicates his under-reporting of his income.  (“Expenses Issue”)

15.  She also complains that the expenses, directors’ emoluments, directors’ loans, shareholders’ loans reported in the audited reports and the financial documents of the Four Companies disclosed by the husband (“Financial Documents”) are problematic which do not sit comfortably with the alleged financial status of the husband. (“Income Issue”)

16.  She argues that, for reasons aforesaid, there is solid evidence to show that the Financial Documents do not reflect the true profits of the Four Companies.  The husband has actually been using his companies’ resources for his personal use and under-reporting his true income.  Such practice has deflated the net profits of the Four Companies and accordingly, his shareholdings of the Four Companies has been substantially undervalued.  She asserts that the information and documents sought by the Disputed Questions are necessary and relevant to the matters in issue in these proceedings for they will directly affect the valuation of his shareholdings of the Four Companies as well as the assessment of his actual income, earning and borrowing capacity.

17.  In response, the husband said in the Second Affirmation that his financial status became critically fragile when his 3 companies in the mainland (“3 PRC Companies”), which were wholly-controlled by him despite not registered in his name, had been penalized by the mainland government to pay overdue tax and fines plus mainland lawyers’ fees at about RMB15 million, equivalent to about HKD18.464 million, (“PRC Expenses”) in 2011-2012.  (In the Second Form E, he stated that the payment in the sum of RMB12,802,823 was made in April 2012).

18.  He alleged that he had been threatened by some mainland officers that if the tax and fines were not immediately paid in full, he would be imprisoned in the mainland.  He therefore made use of the following loans and funds to fully pay off the PRC Expenses in or around April 2012 : -

(a) a sum of about HKD5 million (“Sale Proceeds”), out of the sale proceeds of the Wanchai Property;

(b) a sum of about HKD4.5 million, being the reserve fund of the Building Company payable to its supplier for the cost of good sold between August 2011 and March 2012.

(c) a sum of about HKD4 million, being the reserve fund of the Engineering Limited payable to its service provider for the services provided between November 2011 and March 2012.

(d) a sum of about HKD2 million, being a loan drawn from the SC Bank to the Engineering Limited on or around 18 August 2011.

(e) a sum of about HKD2.964 million, being revolving loans drawn from the trading loan accounts of the Building Company with the HS Bank in or around March 2012.

(Items (b) to (e) in the total sum of around HKD13.464 million be collectively the “First-tier Loan”)

19.  In order to reduce the First-tier Loan owed to the supplier, the service provider, and the banks plus interest accrued thereon and to cope with the increasing operating costs of his business, the husband borrowed further sums after April 2012 as follows: -

(aa) a sum of about HKD2.5 million, being a loan drawn from HC Bank to the Engineering Limited on or about 12 August 2012.

(bb) a sum of about HKD3.7 million, being the third mortgage loan over the matrimonial home drawn by the FS Limited on or around 14 November 2012.

(cc) a sum of about HKD0.5 million, being a personal loan drawn from the SC Bank by the husband on or about 18 November 2013.

(dd) a sum of about HKD1.276 million, being a loan drawn from the SC Bank by the Engineering Limited on or about 30 June 2014.

(ee) a sum of about HKD2.326 million, being a loan drawn from the SC Bank by the Engineering Limited on or about 7 June 2016 (upon full repayment of the said loan of HKD1.276 million in May/ June 2016 as stated in sub-paragraph (dd) above).  (See para 18(e) of the Second Affirmation)

(Items (aa) to (ee) in the sum of around HKD10.302 million be collectively the “Second-tier Loan”)

20.  He said that since 2011, he has been using new debts to repay the old debts and heavy interests accrued thereon.  The children and the wife have all along been financially supported out of those loans, rather than his salaries from the 2 Wholly-owned Companies.   In 2017, his debts and loans were in the region of HKD20 million while his substantive assets was valued at HKD0.3 million only.

21.  According to the Supplemental Skeleton Submissions for the husband, it is said that up to 20 April 2012, he had utilized about HKD18.464 million which comprised the First-tier Loan (of around HKD13.464 million) to pay off the PRC Expenses. Such payments were made more than three years before the Present Petition. Between 2012 and 2016, he obtained the Second-tier Loan to repay a significant part of the First-tier Loan.  Up to December 2017, he had incurred HKD28.5 million debts (“2017 Debt”) to repay :

(a) the First-tier Loan (inclusive of the Second-tier Loan) of about HKD13.464 million;

(b) family expenses of about HKD8.8 million for the period between mid-2012 and December 2017; and

(c) business operating expenses of the 2 Wholly-owned Companies together with the interests incurred for various loans for the period between mid-2012 and December 2017.

22.  At this hearing, two schedules have been helpfully prepared and submitted to this Court by the Counsel : -

(a) “Table of documents provided by the husband dated 9 April 2019” which lists out all the Financial Documents provided by the husband to the wife so far.  The table is agreed by both parties;

(b) “Table of H’s Financial Position dated 9 April 2019” in that the husband sets out his financial positions with reference to the documents disclosed by him (“Schedule II”);

23.  In Schedule II, it is further clarified for the husband that : -

(a) the PRC Expenses were paid by the Sale Proceeds and the First-tier Loan.

(b) the First-tier Loan was partially repaid by the Second-tier Loan between August 2012 and June 2016, (allegedly to have left the husband with an outstanding debt of HKD3.162 million (“2016 Debt”) as at June 2016).

(c) the 2017 Debt is comprised of the business expenses, which is “roughly about HKD6.3 million (about HKD95,000 per month)”

(the First-tier Loan, the Second-tier Loan, the 2016 Debt, the 2017 Debt collectively the “Loans and Debts”)

24.  So far the husband has only provided the wife with a small amount of documents relating to the grant of the loans as well as some purported receipts for proof of payments of the PRC Expenses.  There is no direct evidence to prove that those loans were actually used to pay off the PRC Expenses.  The documents for proof of using the new loans to settle the old loans are flimsy. The wife takes issue on the husband’s allegations relating to the PRC Expenses. (“PRC Expenses Issue”)

(the Home-loan Issue, the Expenses Issue, the Income Issue and the PRC Expenses Issue collectively defined as the “Four Issues”)

Legal Principles

25.  The applicable legal principles are agreed as follows : -

(a) orders for specific discovery are governed by Order 24 rule 7, the Rules of the High Court, Cap.4A (“RHC”);

(b) the applicant bears the burden of proof that the documents sought are relevant, in existence and in possession, custody and power of the party being sought;

(c) once a prima facie case has been made by the applicant, the court has a discretion whether or not to order disclosure. The court will not order disclosure unless it is satisfied that the production is necessary either for disposing fairly of the issues between the parties or for saving costs;

(d) statements in the responding party’s affidavit are conclusive;

(e) Order 24 Rule 7 RHC is made applicable to matrimonial proceedings by Rule 3 of the Matrimonial Causes Rules, Cap.179A (“MCR”);

(f) in matrimonial proceedings, disclosure and discovery begins with the service of the Form E and thereafter, by means of a questionnaire. Questionnaires can, like interrogatories, request information as well as documents. As part of the case management role, the court should regulate the extent of the discovery of documents so that the exercise is proportionate to the issues in question, and to ensure that the discovery process does not become a fishing expedition. See Rayden and Jackson on Relationship Breakdown, Finances and Children (2016) at para. 13.104.

(g) The generally accepted obligation is to make disclosure of banking and other documentary evidence from a day three years before the date of petition. See Halsbury’s Laws of Hong Kong Vol. 28 at para. [180.446]

(h) in respect of discovery of company documents in matrimonial cases, the general principles are laid down in B v B (Matrimonial Proceedings: Discovery)[1978]3 W.L.R. 624 : -

“in many, perhaps most cases audited accounts of companies of which the husband is a shareholder will be sufficient, together with full disclosure of all the husband’s personal financial records.  But there are cases when the court will go behind company accounts and order discovery of company books and documents, if it has the power within the law and within the Rules to do so. It is not usual, however, for the court to take this course unless there is evidence before it from accountants or other experts that the published accounts of the company cannot be relied upon.

......

‘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 may…..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 an important part in financial proceedings in the Family Division.

Applications for such discovery cannot be described as “fishing” for information, as they might be in other divisions.  The wife is entitled to go “fishing” in the Family Division within the limits of the law and practice.’

......

Of course, it is impossible for the petitioner to know the specific identity of individual documents.  But the applicant is being asked a specific question and is being asked to produce the documents to prove his answers. That is not a fishing expedition in the sense of casting a line in the hope that something will be caught: the fish has been identified and the court is endeavouring to spear it.”

......

(2) The documents of a company are in the legal possession of the company.  If they are or have been in the actual physical possession of a director who is a party to litigation they must be disclosed by that director, if relevant to the litigation, even though he holds them as servant or agent of the company in his capacity as an officer of the company. (3) Whether or not documents of a company are in the power of a director who is a party to the litigation is a question of fact in each case. “Power” in this context means “the enforceable right to inspect or obtain possession or control of the documents”. If the company is the alter ego of such a director so that he has unfettered control of the company’s affairs, he must disclose and produce all relevant documents in the possession of the company.  (4) Where relevant documents in the possession of a company are disclosed by a director as being in his custody of power, the court has a discretion whether or not to order production of them. (5) The discretion is a judicial discretion, and in exercising it the court will have regard to all the circumstances. The court will balance the relevance and importance of the documents and the hardship likely to be caused to the wife by production.  It has not hitherto been the practice of the Court to order production of company documents to which the board of directors objects on affidavits, provided that the court is satisfied that the objection is not contrived for the purpose of frustrating the powers of the court. The court will not in the exercise of its discretion order parties to do that which they have no power to do it. The court will not order production unless it is satisfied that production is necessary either for disposing fairly of the issues between the parties or for saving costs.”

Analysis

26.  With these legal principles in mind, I turn to consider the arguments of the parties.

27.  It is said for the husband that given all the relevant figures as the amounts of the debts and the loans being present, it is up to the wife to identify which part of the money flow or the existing documents “do not add up to warrant the disclosure order beyond the stipulated limit of discovery in Form E”.

28.  It is clear to me that the husband’s defence to the wife’s claim for ancillary relief relies heavily on the impact of his alleged liability for the PRC Expenses.  He said in the Second Affirmation that “since my financial hardship arising from the PRC Tax in 2011/ 2012, I have not kept substantive investment assets. The total amount of my substantive assets was currently about HKD0.3 million in 2017, which were insignificant assets if compared to the existing debts owed by my 2 wholly-owned companies.”. It is his case that all his existing and recurrent debts (said to be HKD28.5 million up to December 2017) have been incurred mainly as a result of the PRC Expenses since 2011/2012, and that his financial standing has never been restored. 

29.  Consequently, the question of whether the Loans and Debts were incurred as a result of the PRC Expenses and whether those loans were actually used for repayment of genuine debts of the husband or for the purpose of defeating the wife’s claim for ancillary relief will undoubtedly have an impact on defining the assets and incomes of the husband.   The Four Issues fall to be determined in the ancillary relief application.

30.  In my view, for determination of the Four Issues in the ancillary application, the following matters are necessary and relevant which have yet been accounted for by the husband : -

(a) the husband’s actual interest in the 3 PRC Companies and his personal liability for the PRC Expense remains unclear.  A general description of the husband being “the actual controlling person” (“實際控制人”）” of one of the 3 PRC Companies in the judgements of the court of the mainland as well as a general statement in the letters purportedly signed by the registered owners of the 3 PRC Companies that they had been entrusted and appointed by the husband to be the legal representatives of the 3 PRC Companies do not virtually define what actual interest (the nature and extent of the interest) the husband had in these 3 companies and why he had to personally pay off the PRC Expenses “out of his assets, monies and incomes in Hong Kong” even though “he was not personally liable for the regulatory breach.”.

(b) exactly how the First-tier Loan and the Second-tier Loan were used to pay off the PRC Expenses and how the old debts were paid by the new debts have not been accounted for in details.  Neither the chain of payments of the PRC Expenses nor the actual flow of the funds of the loans was disclosed.  The husband says that the payments were made through law firm and agents.  However, no invoices or fee notes were provided, still less of any documentary proof in support of the husband’s “remittance of money from Hong Kong” to the relevant PRC authority was disclosed.

(c) how the Loans and Debts and the family expenses were booked in the books and accounts of the Four Companies and/ or other companies have not been accounted for. 

(d) Why the matrimonial home was used to secure loans for not only the 2 Wholly-owned Companies but also the L Limited and why the husband insists on repaying those loans with the sale proceeds of the matrimonial home rather than repayments by the borrowing companies has not been elaborated in details.

31.  As elaborated above, the information and documents disclosed by the husband have not given an adequate answer to such questions.  Neither the financial arrangements between the various companies (the Four Companies, the 3 PRC Companies and his friend’s Companies) nor the flows of the funds of the various loans have been sufficiently accounted for.  The husband’s allegation cannot be verified. 

32.  Even if the husband had some debts to pay and some loans from the banks (I have made no fact-findings on this matter at this stage), it does not necessarily mean that those debts were paid off by such loans.  There is no such presumption the husband can rely on.  Apparently an inference that the alleged payment of the PRC Expenses was met by a number of enduring loans which were drawn from various different banks before and after the alleged payment cannot be readily drawn.

33.  In the premises, the causation between the PRC Expenses and the Loans and Debts is one of the main issues in dispute to be determined in the ancillary relief application.  The husband’s allegation of the PRC Expenses leading to the increasingly heavy loans and debts and ending up with his debts far exceeding his assets requires verification. 

34.  Accordingly, the flow of the funds of the Loans and Debts as well as the chain of payment of the PRC Expenses are of direct relevance to the main issue in dispute in the ancillary relief application. They are necessary for fair disposal of the matters in dispute in this case.

35.  Furthermore, whether and how the Loans and Debts as well as the family expenses were booked in the books and accounts of the Four Companies, i.e. loans to shareholder or director, company expenses or remunerations to the husband as employee or director, will have an immediate impact on the value of the shareholdings of the Four Companies as confirmed by the Joint Expert in his letter dated 20 November 2017.  As pointed out by Mr Yim, Counsel for the wife, the Joint Expert has, in the expert report dated 20 January 2017, clarified that no financial statements of the Four Companies after 31 March 2015 had been provided to him for valuation of the shares and he relied heavily on the information given by the instructing party.  He also assumed that the financial position of the 4 Companies had no substantial change since  31 March 2015.  In the circumstances, such information is necessary and relevant for determination of the value of the Four Companies and the husband’s actual income, earning and borrowing capacity.

36.  Moreover, the circumstances under which the husband had obtained additional loans and mortgages over the matrimonial home without the wife’s knowledge and the basis of his insistence on having those loans to be repaid with the sale proceeds of the matrimonial home when it is sold in future (instead of by the borrowing companies) call for justification.

37.  For reasons aforesaid, I take the view that there is solid basis to depart this case from the usual practice of discovery. Discovery should not be limited to the company audited accounts or the usual 3-year time limit. 

38.  I now turn to consider each of the Disputed Questions.  I do not intend to repeat all the questions in full and will only summarize them in brief.

The Disputed Questions

Questions 1-2 : the Husband’s income

39.  Regarding Question 1 : the husband is asked to specify the nature of his alleged incomes received from the 2 Wholly-owned Companies and the W Limited from 2012 to 2015 with documentary proof for items (a) - (c) and (f). 

40.  In reply, the husband has, in the Second Affirmation, stated that the payments from the 2 Wholly-owned Companies were “wages (or income)” and the payments from the W Limited were “dividends (or income)”.  Given the answers “(or income)” are ambiguous and the wife is entitled to be appraised of his income that he has been and is capable of  deriving from the three companies,  I order the husband to answer Question 1.

41.  Regarding Question 2 :  the husband is asked to specify the Husband’s duty and working hours in the Four Companies. Given the husband has, in paragraphs 7-10 and 25 of the Second Affirmation, stated his roles, duties and incomes from the Four Companies, I make no order for this item.

Questions 3-6 : the Husband’s income

42.  Questions 3-6 shall be dealt with together. The wife asks for the facility letters and bank statements (the exact documents sought are specified at this hearing) relating to the HS bank facilities (concerning the matrimonial home and the Wanchai Property) granted to the husband and his companies from January 2012 onwards, by reasons of the husband’s unilateral and substantial expansion of the banking facilities to a total of HKD22 million (using the matrimonial home without the wife’s consent) shortly after her issuance of the Previous Petition. 

43.  The expansion of loans and mortgages undoubtedly has an effect of depleting the value of the family assets including the matrimonial home.  This is particularly so for the reasons set out in paragraphs 27-37 above as well as the husband’s declaration that the borrowing companies would not settle those loans secured by the matrimonial home. The wife is entitled to make inquiry about the grant and expansion of such substantial loans, which were arranged unilaterally by the husband.  Such information is relevant to ascertain the financial resources of the husband and the size of the matrimonial pot.  They are necessary for determination of the Four Issues.

44.  The husband’s answer that he himself made no record on how much of such loans had been spent for the purposes of family expenses or business expenses because he was legally accountable to himself who is the sole shareholder of the 2 Wholly-owned Companies is not a valid objection to the disclosure of such documents, bearing in mind that the Hong Kong companies are required by the laws of Hong Kong to keep proper financial records. 

Questions 8 - 16 : Engineering Limited

45.  The Engineering Limited is solely owned by the husband. In his Second Form E, he claims that it has net value of HKD185,011 but liability of HKD9.47 million.  No adequate particulars or documents of those alleged liabilities has been provided.

46.  In Question 8, the husband is asked to provide particulars and documentary proof of the 4 loans granted to the Engineering Limited by different banks as stated in the Second Form E.  Given the concerns as set out in paragraphs 27-37 above, the husband’s alleged liabilities have the effect of substantially depleting the value of the shareholdings and are of direct relevance to assess the matrimonial pot.  The husband should have no difficulty in producing the relevant documents as he is the sole owner of the company.  I allow this question except the request for “whether the husband and the Engineering Limited are in the position to repay those loans upon demand with detailed reasons and supporting documents”.  Such request is unnecessary at this stage and not cost-saving.

47.  Questions 9, 14 and 15 can be dealt with together.  The husband is asked to provide the names, identities and salaries of each of the employees of the Engineering Limited for the financial years between 2012 and 2015 with documentary proof and to explain the change in this period together with employment details of a particular employee. 

48.  I share the view of Mr. Fong, counsel for the husband, that the wife has failed to justify her request for such information.  Simply an observation of significant decrease in salaries and allowance does not pass the test of relevancy and necessity.  In the absence of any valid basis for investigations into the commercial decision and operation of the company, the requests are plainly a costly fishing expedition in the hope of finding any material in favor of the wife.   They should not be allowed.

49.  Regarding Question 10, the husband is asked to provide particulars and documentary proof concerning 12 bank cheques issued by the Engineering Limited for the wife’s maintenance between October 2012 and December 2015, I would only allow Questions 10(A) and 10(E) and further limit them to : -

- Question 10(A) : to provide documentary proof in support of his allegation that the said 12 bank cheques were recorded as the amount due from shareholders in the company’s books;  and

- Question 10(E) : how the said 12 bank cheques were related to the company’s operation.

50.  The 2 questions are required to demonstrate how the said family expenses have been booked in the accounts of the Engineering Limited.  They are relevant to and necessary for determination of the Four Issues.

51.  I make no order for the remaining part of Question 10. To ask for particulars and documentary support of all amounts due from the husband as shareholder to the Engineering Limited, of the loan authorization process and persons involved in such process, of any other method of account, of explanation for how other loans the husband borrowed are related to the company’s operations are clearly fishing exercises that cannot be allowed.  They are too wide, not necessary or relevant.  At any rate, the husband’s declaration of non-existence of the loan agreement as well as his account of the authorization process of issuance of cheques in the Second Affirmation is an adequate answer to Questions 10 (B) and (C).

52.  Questions 11 and 12 can be dealt with together.  The husband is asked to account for his repayment of his alleged loans due to the Engineering Limited as shareholder (i.e. the loan of HKD5.270 million in March 2014 was reduced to HKD2.567 in March 2015) as well as how such shareholder’s loans and the bank overdraft of the Engineering Limited of several millions were used to pay for the PRC Expenses. 

53.  As elaborated in paragraphs 27-37 above, such information is relevant and necessary for fair disposal of the Four Issues.   So far the husband has not properly explained the source of funds he used to repay the shareholder’s loan of HKD2.703 million to the Engineering Limited, nor has he provided any documents for proof of payment for the PRC Expenses with such shareholder’s loans and bank overdraft.  The fact that such loans were borrowed long after the payment of the PRC Expenses warrants closer scrutiny.

54.  In Question 13, the husband is asked to explain why he chose to receive financial resources from the Engineering Limited by way of loans to shareholder instead of director’s emoluments or shareholder’s dividends to pay for the wife’s maintenance and the PRC Expenses from 2012 to 2015.   For reasons set out in the paragraphs 27-37 above, such information is relevant and necessary for fair disposal of the Four Issues. This question is allowed.

55.  In Question 16, the husband is asked to specify the rent, rates, management fees, size and location of the office with documentary support from 2012 to 2015.  The wife’s request is premised on a change of office location and an increase in office expenses.  This is however not a valid basis to extend the scope of discovery to an investigation into commercial decision of the company.  This question is not allowed.

Questions 18-22, 24-25 : L Limited

56.  Questions 18 to 21 can be dealt with together.  The husband is the 50% shareholder of the L Limited. He claims in the Second Form E that his shareholding has a net value of HKD838,000 and that the L limited has a liability of HKD5.156 million.  As he only holds half share of the L Limited, his use of the matrimonial home as security to obtain banking facilities for the L Limited and his insistence on meeting those loans with the sale proceeds of the matrimonial home when it is sold in future (instead of by the L Limited) demand justification.  

57.  In consideration of the husband’s unusual security arrangement of the matrimonial home and the wife’s interest in the matrimonial home (through a limited company), I agree with Mr Yim that the wife is entitled to ask for particulars of the loans relating to the matrimonial home incurred by the L Limited, including the purposes of such loans, the reason for the change of security from the other property to the matrimonial home and repayment of those loans. However, those questions shall be limited to the loans secured by the matrimonial home but not others. This is upon the husband’s confirmation that he has not used any monies of the L limited to partly pay the PRC Expenses. Accordingly, I find no basis to go into the arena of commercial decision for running the business made by the husband and his business partner other than the loans which were secured by the matrimonial home. Further, similar to Question 8, the request for whether the husband and the L Limited are in the position to repay those loans upon demand with detailed reasons and supporting documents will not be allowed.  Such request is unnecessary at this stage.

58.  In Question 22, the husband is asked to give detailed reason on why he was the only one who has made banking facility available to the L Limited.  The husband has done so in paragraph 25 (D)(17) of the Second Affirmation, i.e. he was contractually responsible for providing financial provision to the L limited whereas the other shareholder was responsible for soliciting clientele and project work.  Whether his reasons are to be believed is another issue.  Absent solid basis to challenge his answer in the affirmation, this question should not be repeated. 

59.  In Question 24, the husband is asked to explain how the L Limited generated substantial revenues without any staff.  I am persuaded that the wife fails to show how the number of staff is relevant to these proceedings especially when the husband has already provided his answer in paragraph 25 of the Second Affirmation, i.e. in construction industry, the L Limited can earn profits by subcontracting project work to independent contractors and or other subcontractors. It needs not maintain a lot of staff.  At any rate, the income of the L Limited is taken into account in the family pot.  Absent solid basis to challenge his answer in the affirmation, this question should not be repeated. 

60.  In Question 25, the husband is asked to explain the inconsistency between what was stated in his letter in 2017 and the audited reports of the L Limited in terms of the amount owed by the husband to the L Limited.  Given the husband has, in the Second Affirmation, stated that he might have made a mistake in his calculation when the former was attended and confessed to rely on the figures stated in the audited reports of the L limited, I do not see what purpose will be served by asking him again for reason of the inconsistency and for particulars of those figures with documentary support. Absent solid basis to challenge his answer in the affirmation, this question should not be repeated. 

Questions 28, 30-35 : Building Company

61.  The husband is the sole owner of the Building Company which is an unlimited company. He claims in the Second Form E that the net value of his shareholding is HKD 226,505 and the Building Company has liabilities of HKD4.218 million.  The matrimonial home is also pledged as security to obtain various banking facilities and there was a sudden increase of the mortgage loan without consent of the wife after the issuance of the Previous Petition.  As indicated in the husband’s answer to Question 27, he takes the stance that the Building Company will not repay those banking facilities.  He also alleges that the loans were used to pay off part of the PRC expenses and family expenses.

62.  In the premises, the wife is entitled to ask the husband to provide particulars of the loans incurred by the Building Company, including the purposes of those loans, the reason for the sudden expansion and drastic increase of them particularly after the issuance of the Previous Petition, the reason for the change of security to the matrimonial home without the wife’s consent and how they have been repaid, and to substantiate his answers with documentary proof.

63.  Of Questions 28, 30-35, the husband is asked to provide particulars and documentary proof of the loans granted to the Building Company by the bank as stated in the Second Form E.  The husband’s alleged liabilities are of direct relevance to the assessment of the matrimonial pot and his earning capacity.  The husband should have no difficulty in producing the relevant documents as he is the sole owner of the company. I allow Questions 28, 30-33 and 35 except the request for whether the husband and the Building Company are in the position to repay those loans upon demand with detailed reasons and supporting documents under Question 28.  Such request is unnecessary at this stage.

64.  Of Question 34, in light of the husband’s account of the relationship between the Building Company and the 3 PRC Companies in paragraph 25(E) (34) of the Second Affirmation, this question is limited to set out the loans which are used for payments of the PRC expenses with documentary proof.

Questions 39-41, 44-46 : W Limited

65.  Of Questions 39-41, 44-46, it is submitted for the wife that all these requests are to ascertain whether the husband has received any salary or allowance from the W Limited.  It is said that being a 24% shareholder, the husband has not reported any income from the W Limited in the Second Form E. It was only upon inquiry, he then alleged that he received HKD200,000 and HKD 240,000 from it in the year of 2012/2013 and 2014/2015 respectively. He later corrected the latter amount to HKD20,000 and supplemented that the two sums are dividends.  The wife argues that the nature of such payments remain highly dubious, and therefore find it necessary to investigate into the duties, working hours, involvement, remuneration, fringe benefits and loans of the directors as well as of the shareholders so as to ascertain the husband’s income.

66.  Absent evidence to challenge the husband’s clear answers in his letters and the Second Affirmation that he is not a director but only an investor and minority shareholder of the W Limited, that he received no income from it other than dividends, that he is not in management of it and does not work there, that he does not have, other than the audited reports, any relevant documents to answer questions relating to internal management of the W limited as accounting matters, staff employment, or daily expenses, the wife’s mere suspicion does not form valid ground for discovery beyond the audited reports or beyond the usual  3-year time limit.  I accept Mr. Fong’s submission that Questions 39-41 are nothing more than a fishing exercise in the hope of finding any materials she could make use of which shall not be allowed.

67.  I must add that the questions asking for the office space, identities of all the employees and their respective salaries for 3 years under Questions 36-38 (such questions are only withdrawn at the hearing); for the identities of all the directors and shareholders, their respective roles, duties, working hours, emoluments, quarter expenses under Questions 39-41; for how much the entertainment expenses,  motorcar expenses, rent, rate, management fee and transportation expenses were consumed or incurred by the husband in the financial years between 2012 and 2015 under Questions 44 to 46, are wholly excessive, unnecessary, and irrelevant.  This is a clear example of fishing expedition that serves no purpose but wastes costs. 

Questions 50-51 : AWE Limited

68.  For the period between January 2014 to September 2015, the husband was used to pay the wife maintenance by cheques of the AWE Limited. On record, he is not a shareholder, director or employee of this company. In a letter, he claimed that those were loans granted by the AWE Limited to him which have been fully repaid.

69.  No doubt an ability to raise loans and to repay them is part of a person’s financial resources which is of direct relevance of ancillary relief application.  The husband should explain the relationship with the AWE Limited under oath (or the explanation to be verified by a statement of truth) and provide documentary records of the alleged loans and their repayments.  The two questions are allowed.

Questions 52 : FS Limited

70.  In Question 52, the wife asks for the purposes, use and the whereabouts of three property installment loans obtained by the FS Limited from a bank in 2007, 2008 and November 2012 respectively as well as transaction records showing such loans were used to pay for the PRC Expenses, if any.

71.  Being the 50% shareholder of the FS limited which in turn holds the matrimonial home, I agree that she is entitled to seek the information and documentary proof in relation to the loan in November 2012.  On the other hand, the other two loans were obtained long before the petition.  There is no suggestion that they were obtained for payment of the PRC Expenses or for defeating the wife’s ancillary relief claim.   I accordingly allow this question but limit it to item c only.

Questions 53 : bank accounts

72.  Given the considerable volumes and values of the transactions into and out of the husband’s personal bank account from November 2014 to the end of 2015, shortly before and after the commencement of the present proceedings, the husband is required to account for the purposes, sources and destination of such transactions which will assist the court to accurately determine the financial resources of the husband.  I allow such question but only for transactions involving HKD100,000 or above.

Questions 54, 57, 59 : miscellaneous documents production

73.  In Questions 54, 57, 59 (except 54(d), 57(b) (d), which are withdrew at the hearing), the wife seeks production of the audited statements of the 2 Wholly-owned Companies and the L Limited together with the bank statements of the 2 Wholly-owned Companies, the FS Limited, the BWD Limited and all bank accounts the husband has access to, for the years between 2012 and 2017 save for those already disclosed.

74.  For reasons elaborated in paragraphs 27-37 above, I allow Questions 54, 57, 59 except Question 54 (c).  The husband’s declaration of non-existence of audited statements for the unlimited company, Building Company, is a complete answer to Question 54(c);

Questions 61 to 63 : the husband’s Reply to the Second Questionnaire

75.  Questions 61 to 63 are follow-up questions arising from the husband’s previous reply to the wife’s Second Questionnaire.  The husband is asked to account for his relationship with the 3 PRC Companies and for the proof of payments of the PRC Expenses.

76.  Given the information and documents sought are directly related to the husband’s alleged payments for the PRC Expenses.  For reason set out in paragraphs 27-37 above, I allow these questions.  So far the husband’s disclosure is limited to the names of the legal representatives and shareholders of the 3 PRC Companies and a few receipts purportedly to acknowledge receipt of payments for the PRC Expenses (without making reference to the husband as the payer), the wife is entitled to demand for explanation of the relationship between them and for proof of his payment obligation and arrangement of the PRC Expenses.

77.  I should add that in reply to the Present Summons, the husband has, in the Second Affirmation, repeatedly stated that he had no further documents to disclose.  I however do not regard such statements as conclusive for they are general and ambiguous. He has neither specifically referred to exactly what documents he could not supply, nor has he accounted for whether he has ever in possession, custody or power of such documents and what have become of them. 

Conclusion

78.  Having considered all the evidence and documents before me as well as the submissions of both parties, I make an order that : -

(1) the wife do have 21 days to file into Court and serve on the husband the revised Third Questionnaire;

(2) the husband do file into court and serve on the wife a Reply to the revised Third Questionnaire within 42 days after service of the revised Third Questionnaire;

(3) the Husband do file into court and serve on the wife an affidavit confirming whether he has or has had possession, custody and power of the documents sought in the revised Third Questionnaire and if those documents are no longer in his possession, custody and power, state when he has parted with them and what has become of them within 42 days after service of the revised Third Questionnaire.

(4) there be liberty to apply for implementation of this Order.

Costs Order

79.  The wife has not been entirely successful in this application and some of her requests are plainly too wide in ambit, unnecessary and irrelevant.  I nevertheless must consider that the wife actually had no option but to make the present application and she succeeds in most of her application.

80.  I remind myself that costs are determined not by dividing litigation into quantifiable subjects and figures, like a profit and loss account, but rather by way of overall impression. See F v F (No 2) [2003] 3 HKLRD 976.

81.  Having considered all the relevant circumstances in this application, I make an order nisi that the husband do pay two-third of the wife’s costs of and occasioned by the present Summons, including all costs reserved, on a party and party basis, in any event, to be taxed if not agreed, with certificate for counsel.

82.  This Order Nisi shall be made absolute within 14 days from the date of this decision unless either party applies to vary the same by way of summons.

83.  I thank Counsel for their assistance.