LAU HANG PING v. CHOW YUN NIN

HCA 1067/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1067 OF 2013

________________________

__________________________________

REASONS FOR DECISION
___________________________________

1.  This action was commenced on 14 June 2013 by the plaintiff against the defendant for among other things a declaration that a property registered in the defendant’s name is held by him in trust for the plaintiff absolutely.

2.  As the plaintiff and the defendant had been lawfully married, for ease of reference, I shall call them respectively “W” and “H” in this decision.   

3.  Counsel Mr Alan Yung appeared for H at the trial, and W acted in person, although she was legally represented at the time of the issue of the writ herein.

4.  It transpired from Mr Yung’s opening submissions that there were two main issues which the court would need to determine in the present action:

(i) Whether the funds for the purchase of the subject property purchased after the granting of the decree absolute, were funds originated from family funds jointly owned by the parties during their marriage, or from W’s sole funds;

(ii) Whether W should be bound by the Chinese agreement signed on 3 November 2011 by the parties.

(“Main Issues”)

5.  At the commencement of the hearing on Monday 11 April 2016, both H and W had wanted to produce further documents.  W had wanted to produce further documents from the parties’ divorce proceedings in the Family Court under FCMC 14118 of 2002 (“FC Proceedings”).  This court decided to adjourn the trial to call for all the files from the Family Court in connection with FCMC 14118 of 2002, and the trial of the present action was then adjourned to today.

6.  At the resumed hearing on 13 April 2016, having received no objection from the parties, I ordered that the present action be adjourned sine die, with liberty to restore, if necessary, after final determination of the parties’ ancillary claims in the FC Proceedings.

7.  I set out my reasons hereunder, and also the relevant events which can be gleaned from those files in the FC Proceedings.

8.  The parties were married in October 1995.  It was H’s case that the parties met when they were teenagers in 1988 and started to cohabit sometime before their marriage.  Anyway, W petitioned for divorce against H in December 2002.

9.  In the divorce petition, W applied for joint custody of the children and only a nominal sum of HK$1.00 for her maintenance. H filed an acknowledgment of service indicating he did not intend to defend the divorce and that he did not wish to be heard on any of W’s claims nor did he wish to make any claims for himself.  At that time, the parties had two children of the family, both sons.

10.  The decree nisi was granted on 22 August 2003, and joint custody of the children was granted to the parties with care and control to W, and H was ordered to pay W HK$1.00 for her maintenance.  There was no order for maintenance for the children, nor any order for ancillary relief made at the time of the decree nisi.  The decree was made absolute on 13 October 2003.

11.  It is not disputed that notwithstanding the divorce, the parties had continued to cohabit as man and wife, as before, together with their two children. 

12.  During the parties’ marriage and/or relationship, a number of properties had been bought and registered in W’s sole name.  There was in particular a business set up in 1998 called Hoi Tin Trading Company registered in W’s name which W said was her sole business while H alleged that it was set up with joint family funds.

13.  Anyway, less than a year after the granting of the decree absolute, and during the parties’ continued cohabitation, on 21 September 2004, the subject property at Flat A, 8 floor, Block 2, Kai Tak Garden Phase I, 121 Choi Hung Road, Wong Tai Sin was purchased on 21 September 2004 in H’s sole name (“Property”).  

14.  Thereafter, W gave birth to a daughter in March 2007 during the parties’ continued cohabitation. As a result, there are now three children of the family, respectively, about 20, 15, and 10 years of age.

15.  The parties’ relationship only turned sour in October 2011 and in November 2011, H moved out to reside in the Property.  W had alleged that she was assaulted by H  as a result of which W had applied for a non-molestation order on 13 December 2011 in the FC Proceedings.  The FC Proceedings were then revived.

16.  This was later followed by W issuing a Form A /Form 25, on 3 may 2012 namely a notice of intention to proceed with an application for ancillary relief.  The parties’ 1^st Form Es/financial statements were then filed in about April/May 2012.  H was acting in person and in Part 6.1 of his Form E, relating to orders sought, he had written “not applicable”.  Although W was legally represented at the time, she had left blank Part 6.1 in her Form E.  However, both parties set out their financial positions at the time.  It would appear that at the time W was primarily seeking maintenance for the children.

17.  The parties filed their 2^nd Form Es in December 2012.  This time, in Part 6.1 of his Form E, H had set out that all the orders he sought including property transfer orders against W in respect of 7 properties (not including the Property) and for a dismissal order of W’s claims for ancillary relief.  In W’s Form E, again she left blank Part 6.1.

18.  On 27 March 2013, H had filed a Form 8 in which he appeared to be seeking a variation of maintenance order only.

19.  Further on 16 May 2013, H’s father, who is also a witness in the present action, had filed an affirmation to support H’s claims in respect of a Shenzhen property. 

20.  Thereafter in November/December 2013, H and W respectively filed their 3^rd round of Form Es.  This time, in Part 6.1 and Part 6.2 of his Form E, H had sought a variation of the maintenance order in respect of the children and again sought a dismissal of W’s claims for ancillary relief, and also sale of property orders in respect of 2 properties.  In Part 6.1 of her Form E, W had sought a maintenance order from H together with interest.

21.  Although under Rule 68 of Matrimonial Causes Rules, leave is required for any application by a petitioner or a respondent if such an application is not made in the petition or answer, neither seemed to have made an application for leave, nor did it seem that this matter had been raised before the judge.  In any event, neither party had objected to the other’s claims for ancillary relief and parties had already filed 3 rounds of Form Es and further narrative affirmations. 

22.  From what I can see, although there had been orders made relating to children and children’s maintenance, the question of ancillary relief between the parties themselves has not yet been dealt with under the FC Proceedings, nor has there been any Financial Dispute Resolution / FDR hearing.  So far as I can see, there has not been any order dismissing their respective claims against each other.

23.  Thereafter, on 14 June 2013, W issued the writ in the present action.  W had tried to explain to this court that she was informed by the judge that as the Property was purchased after the decree absolute, the matter was outside jurisdiction of the Family Court.  I cannot see any determination / decision / judgment / order to this effect.  In any event, one of the Main Issues is really whether the funds for the purchase of the Property were part of the family funds.

24.  Having considered all the circumstances of this case, I have come to the view that W’s claims in the present action and the Main Issues concerning the Property can be more effectively dealt with in the FC Proceedings as part of the parties’ ancillary relief claims within the jurisdiction of the Family Court, in particular when 3 sets of Form Es having already been filed.  Further, the present action is only dealing with part of the parties’ claims in the FC Proceedings.  The parties’ financial dispute should be dealt with all in one go and not in a piece meal fashion.  I see no importance or complexity of any issues in the FC Proceedings, notwithstanding there has been a long delay after the decree absolute.  A long delay does not mean that the Family Court no longer has jurisdiction in dealing with the issues, as can be seen in Rossi and Rossi [2006] EWHC1482 (Fam), and further in the present case, the fact that the parties had continued to reside as man and wife resulting in a 3^rd child being born would seem in my view a good reason or explanation for the delay.

25.  In any event, the parties should also avail themselves of the FDR procedure in the FC Proceedings.

26.  In the circumstances, at the resumed hearing, I have asked the parties whether they had any objection to proceeding with their respective ancillary relief claims in the FC Proceedings and to the adjournment of this action.  Neither objected.  I have therefore ordered that the present action be adjourned sine die, to be restored if necessary, after the final determination of the parties’ ancillary relief claims in the FC Proceedings.  I have ordered costs be reserved.

27.  I have also directed that a Chinese translation of these reasons be provided to W.