CWK v. YCHS AND ANOTHER

FCMC 6082 /2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 6082 OF 2014

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D E C I S I O N
(Specific Discovery)

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Introduction

1. This is the Petitioner’s (Wife’s) Summons dated 5 June 2015 (“Discovery Summons”) for specific discovery against the 1^st Respondent (Husband) on information and materials disclosed under his Form E and Answers to Questionnaires. 

2. The terms of the Discovery Summons are, inter alia, production of :-

“a. Copies of the audited reports of PB since 2008 (Question 4(15) of the Petitioner’s Further Questionnaire filed on 14 April 2015);

b. Copies of the audited reports of UB since 2008 (Question 5(5) of the Petitioner’s Further Questionnaire filed on 14 April 2015);

c. Copies of the audited reports of SW since 2008 (Question 6(6) of the Petitioner’s Further Questionnaire filed on 14 April 2015);

d. Copies of all, complete and unredacted American Express Centurion card monthly statements, including the statements of the 1^st Respondent, the Petitioner and the 2^nd Respondent, from 1 May 2011 onwards to present (Question 18(3) of the Petitioner’s Further Questionnaire filed on 14 April 2015);

e. Copies of all, complete, unredacted securities account statements and/or transaction records of the 1^st Respondent’s securities account number 012-xxx-63-xxxxx-6 with the Bank of China (Hong Kong) Limited from May 2011 onwards to present (Question 36(1) of the Petitioner’s Further Questionnaire filed on 14 April 2015);

f. Copies of all, complete, and unredacted bank statements of the 1^st Respondent’s savings account number 012xxx10xxx538 with the Bank of China (Hong Kong) Limited from May 2011 onwards to present (Question 38(8) of the Petitioner’s Further Questionnaire filed on 14 April 2015);

g. Copies of all, complete and unredacted bank statements of the 1^st Respondent’s savings account number 012xxx19xxx628 with the Bank of China (Hong Kong) Limited from May 2011 onwards to present (Question 39(12) of the Petitioner’s Further Questionnaire filed on 14 April 2015);

h. Copies of all, complete and unredacted bank statements of the 1^st Respondent’s current account number 012xxx00xxx986 with the Bank of China (Hong Kong) Limited from May 2011 onwards to present (Question 40 of the Petitioner’s Further Questionnaire filed on 14 April 2015); and

i. Copies of all, complete and unredacted bank statements of the 1^st Respondent’s Bank of China Visa Infinite Card number 4863-xxxx-xxxx-0019 from May 2011 onwards to present (Question 43(1) of the Petitioner’s Further Questionnaire filed on 14 April 2015).”

3. For the sake of brevity, the documents sought can be categorised as follows :

  -  “Audited Financial Statements” (items (a) to (c));

  -  “Amex Card Statements” (item (d));

  -  “Securities Account Statements” (item (e)),

  -  “Bank Accounts Statements” (items (f) to (h)); and

  -  “BOC Card Statements” (item (i)).

Background

4. The parties were married in 1987 in Hong Kong.  This is a childless marriage (despite numerous artificial conception attempts) which was ended after 27 years in 2014.  The Husband is now 56 and the Wife is 52.  At the time of the marriage, the Husband was a construction site foreman and the Wife was a teller at a Bank.

5. In 1991, the Husband’s career in the construction and engineering industry started to take off.  In 1996, the Wife resigned from her full time employment of an assistant bank manager at that time and became a full time housewife to assist the Husband with his growing business.  In 1999, the Husband met the 2^nd Respondent and around 2 years later in 2001, the 2^nd Respondent gave birth to the 1^st child with the Husband.  Since then, this “extra marital” relationship continues up until present and throughout these years 4 children are born by the 2^nd Respondent.

6. It is common ground that throughout all these years the Husband had been financially maintaining the ‘4-child family’ formed with the 2^nd Respondent in parallel to the ‘childless family’ with the Petitioner.

The Divorce Proceedings

7. The Wife filed her Petition for divorce in May 2014 relying on the fact of “Unreasonable Behaviour”.  Decree Nisi was granted on 24 July 2014 and all questions as to ancillary reliefs were adjourned for further disposal.

8. Parties exchanged their respective Form Es on 26 and 27 June 2014.  The Wife served her 1^st Questionnaire on 28 July 2014 (P2 : 419-429). The Husband’s Answers were filed on 25 August 2014 (P2: 524-543).  The Wife issued a Summons on 9 April 2015 (P5: 1341 to 1344) seeking answers and documents in respect of the Husband’s Form E, inter alia, various bank deposits, securities account statements, MPF statements and other utilities expenses statements.  This Summons was scheduled for hearing on 4 May 2015 which was then adjourned to 8 June 2015. 

9. At a Direction hearing on 10 April 2015, the Petitioner obtained leave to serve her 2^nd Questionnaire on or before 13 April 2015.  This 2^nd Questionnaire (P5: 1350 to 1402) was actually served 1 day late on 14 April 2015 of which no issue was taken by the Husband.  The Husband then provided his answers to this 2^nd Questionnaire on 29 May 2015 (P7: 1874 to 2273). 

The applicable legal principles

10. It is common ground the Wife is relying upon Order 24 rule 7 of the Rules of the High Court (“RHC”) seeking the present discovery which was made applicable to matrimonial proceedings (see Rule 3 of the Matrimonial Causes Rules, Cap.179A).

11. Order 24 rule 7 of the RHC provides : “Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become    of it.”

12. Order 24 rule 8 of the RHC provides :

“On the hearing of an application for an order under rule 3, 7 or 7A the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing    fairly of the cause or matter or for saving costs.”

13. Moreover, Rule 77(4) of the Matrimonial Causes Rules Cap.179A (“MCR”) provides :-

“(4) Any party to an application for ancillary relief may by letter require any other party to give further information concerning any matter contained in any affidavit filed by or on behalf of that other party or any other relevant matter, or to furnish a list of relevant documents or to allow inspection of any such document, and may, in default of compliance by such other party, apply to the court for    directions.”

14. It is also common ground that the Wife is seeking production of the actual documents listed in the terms of the Discovery Summons as opposed to the Husband filing any affirmation to verify and confirm whether the documents sought exist and whether in his custody, power and possession. 

Cases and Authorities

15. Senior Counsel Miss Anita Yip, SC for the Wife referred to a number of cases such as Paul’s Model Art GMBH & Co KG v. UT Ltd [2006] 1 HKC 238, Re Peruvian Guano Company (1882) 11 QBD 55, Yau Chin Kwan & Anor v. Tin Shui Wai Development Ltd unreported, CACV 247/2001, B v.B (matrimonial proceedings: discovery) [1979] 1 All ER 801 and K v.K unreported, FCMC 6100/2006.

16. Counsel Mr. Eugene Yim for the Husband referred to the cases of Melvin Waxman v. Li Fei Yu and others, HCA No.1973 of 2012, EL v. CFL, FCMC No.46858 of 2012, FCP v. CJLY, FCMC No.6202 of 2012 and Mimi Kar Kee Wong Hung v. Raymond Kin Sang Hung (2014) 17 HKCFAR 585.

The core issue

17. Given the fact that the Husband had provided his answers to the Wife’s 1^st Questionnaire and had in addition, by way of voluntary disclosure through correspondence, produced documents of the same class as now requested by the Wife in the terms of the Discovery Summons, I believe the core issue lies with the period or extent of discovery rather than the nature and discoverability of the class of documents in question. 

18. On such core issue, Counsel Mr. Yim submitted that the Wife’s requests are unnecessary, unjustified or excessive under the circumstances of the present case or are not proportional to the disclosure exercise.  There must have a limit over disclosure.  In the absence of justification as to the probative value of those documents for the extended period presently sought, this might be a ‘fishing exercise’ by the Wife.  This Court should also note from the case management perspective that not only further costs would have to be incurred for obtaining those documents for the extended period, there are also costs implications for analysing the same.  Furthermore, there had never been any issue taken by the Wife that amongst those documents already disclosed by the Husband, say for instance the AFS since 2011, had raised any suspicion on the Wife which warrant an extension of the period of disclosure beyond what would normally be required of by the Form E. 

19. Senior Counsel Miss Anita Yip, SC, in reply to the submission of  ‘fishing exercise’, referred this Court to the case of Charman v. Charman [2006] 2 FLR 422 where Wilson LJ at paragraph 38 of the Judgment, citing the well known case of B v. B (supra) had said :

“38. It follows that, in this area of the case, I would not accept that different principles apply in financial proceedings following divorce from those which apply elsewhere. In this regard I refer to the decision of Dunn J in B v. B (Matrimonial Proceedings: Discovery [1978] Fam 181. Before him was a wife’s application in financial proceedings for disclosure by the husband, rather than by a non-party. At 191E-H, the judge said :

‘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.’

The judge’s first paragraph is, if I may say so, important; and I will return to it at para [47], below. But his reference to an entitlement to go ‘fishing’ might have caused confusion. I believe that he meant to convey only that, by a request for an order for disclosure, a wife is entitled to seek to ensure that a husband complies with his duty to make full and frank disclosure of all his resources. The passage does not, and could not, confer upon a spouse a licence to    go ‘fishing’ for documents against a non-party.”

20. At paragraph 40 of the same Judgment, Wilson LJ referred to the case of Zakay v. Zakay [1998] 3 FCR 35 where Schofield CJ had said :

“the documents requested for production in this case are narrowly confined to the single issue they are aimed to support. The documents are more than likely in the possession of the applicant and are readily identifiable. 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.”

21. The settled principles governing specific discovery have been succinctly summarised by Hon Ng J in a recent decision of Jade’s Realm Ltd v. Director of Lands  (HCA No.1509/2012) dated 9 January 2015 as follows :-

“(1) There is no jurisdiction to make an order for specific discovery under RHC O.24 r.7 unless there is sufficient evidence or prima facie case that : (a) the documents or classes of documents exist which the other party has not disclosed; (b) the documents relate to a matter in issue in the action; and (c) the documents are in the possession, custody or power of the other party;

(2) Once it is established that those three prerequisites for jurisdiction do exist, the court has a discretion whether or not to order discovery.

(3) The Court will not make an order unless the discovery sought is necessary either for disposing fairly of the cause or matter or for saving costs.

(4) The Peruvian Guano test remains the test of relevance. A document is relevant if :

(i) it is reasonable to suppose that it contains information which may, not must, either directly or indirectly enable the party requiring the same either to advance his own case or to damage the case of his adversary; or

(ii) it is a document which may fairly lead the party to a train of inquiry which may have either of those two consequences.

   (5)  For the purpose of discovery, the pleadings have to be looked at broadly.

   (6)  The order must identify with precision the documents or categories of documents which are required to be disclosed, for otherwise the person giving the discovery may find himself in serious trouble for swearing to a false affidavit, even though doing his best to give an honest disclosure.

   (7)  Notwithstanding the Peruvian Guano test, ‘fishing’ is not allowed, and discovery should not be oppressive.

   (8)  The respondent may answer an application for specific discovery by an affidavit stating that he does not have the documents, and this will be conclusive at the interlocutory stage.”

22. In my view, full and frank disclosure is an important role and also a continuing obligation of the parties with no exception in matrimonial cases.  The rationale behind is to reveal all documents and information one party has or possess which is relevant whether in advancing his or his opponent’s case or destroy his own case (see Compagnie Financiere du Pacifique –v- Peruvian Guano Conpany (1882) 11 QBD 55).  This is commonly called the ‘Peruvian Guano’ principle.

23. ‘Relevance’ is to be determined by reference to the pleadings (see Re Estate of Ng Chan Wah [2003] HKEC 317).  In the context of  ancillary reliefs applications between spouses where there are no pleadings exchanged, I am entitled to consider the issue of relevance by reference to the disclosure of assets under the parties’ Form E or answers to questionnaires or affirmations.

24. As regards the ‘existence’ of a document, Deputy High Court Judge Queeny Au-Yeung (as she then was) in the case of Ngan In Leng v. Chu Yuet Wah [2013] 1 HKLRD 717 said :-

“42. A prima facie case on existence may be established on merely showing the probability arising from the surrounding circumstances or on specific facts deposed to : Hong Kong Civil Procedure 2012, Vol.1, para.24/7/1, at pg 554. For example, a prima facie case on existence may be established simply by assessing whether it is business practice for a certain type of document to exist : Union Bank of India v. General Nice Resources (Hong Kong) Ltd ,      HCA 299/2007, 10 May 2010, Bharwaney J at para 10.”

25. In the often cited case of B v. B (matrimonial proceedings : discovery) [1979] 1 All ER 801 where Dunn J summarised the law on discovery in ancillary reliefs application at page 811 said : “I will conclude the part of my judgment by summarising my conclusions as to law.

(1) A party to a suit must disclose all the documents in his possession, custody or power which are relevant to the matters in issue. The court has discretion whether or not to order him to make such disclosure, and also has discretion whether or not to order him to produce the documents for inspection by the other party or the court.

(2) …………….

(3) …………….

(4) …………….

(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 the non-production against any prejudice to the Husband and third parties likely to be caused by production………..….. 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.”

26. With the above principles in mind, I now proceed to consider the Wife’s application.

Discussion and Analysis

Audited Financial Statements (“AFS”)

27. The AFS of the company PB starting from its incorporation in 2008 had now been disclosed by the Husband (C: 217 to 286).  Thus, the Wife no longer pursued paragraph 1(a) of her Discovery Summons insofar as the company PB is concerned.

28. As to the AFS of the companies UB and SW since their incorporation respectively in 2007 and 2008, the Husband’s contentions are that the Wife is not entitled to those audited reports since incorporation, which is 8 years ago for UB and 7 years ago for SW in addition to those already disclosed.  He asserted that he had already produced the AFS of these 2 companies for 4 years, namely, the financial years ended March 2011, March 2012 and March 2014 which were attached as Exhibit “RA-8” to his Affirmation.  The AFS for the financial year ended March 2013 had earlier been attached to his Form E filed.

29. Counsel Mr. Yim also submitted and queried the probative values of those pre-2011 AFS of UB and SW in relation to the issues in question.  

30. In my view, the peculiar circumstances of the present case, namely, that a 13-year or so “extra marital” relationship of the Husband with the 2^nd Respondent running in parallel with his marriage with the Wife calls for special consideration when the Court comes to determine financial reliefs.  Given the undisputed fact that the Husband has all along been and still is maintaining “two families”, the Wife’s asserted case of possible diversion of family assets by the Husband provides justification for discovery, both in terms of specificity and scope, much wider than those that would ordinarily have been expected in other day-to-day ancillary reliefs cases.  Senior Counsel Miss Yip, S.C., referred to the case of K v. K, unreported, FCMC No.6100 of 2006 where the learned Deputy Judge K.W. Wong (as he then was) had ordered extensive discovery against the Husband for a period well over 2 years from the divorce petition. It is noted that Miss Yip S.C., was acting for the Husband in the K v. K case.

31. Husband’s Counsel Mr. Yim sought to distinguish K v. K (supra) since the Wife in the present case had pleaded at paragraphs 9 (b) to (e) of her ‘Unreasonable Behaviour” petition and also in her Affirmation in reply to the Husband’s Affirmation in opposition filed in respect of her maintenance pending suit application (which yet to be heard), that she has had knowledge of the 13 years on-going relationship between the Husband and the 2^nd Respondent.  This is different from the facts in the K v. K (supra) case.

32. With respect, I do not agree with Mr. Yim.  The issues in question relate to the Wife’s ancillary reliefs as opposed to the Husband’s marital conduct.  The fact that the Wife was and is aware of the Husband’s relationship with 2^nd Respondent for 13 years is, in my view, neither here nor there when determining whether more extensive disclosure at this stage should be granted.  Knowledge of the Wife about the “extra marital” relationship in existence could not be equated with knowledge of the Husband’s financial means over the years, of which is a live issue for the Court to find and determine at the ancillary relief trial proper.  What is important is that the Wife’s evidence that since around July 2001 after the Husband has had formed the said “extra marital” relationship, she was then kept in the dark by the Husband who had by that time redirected all his bank and credit card statements and tax returns to his office address was not controvert by the Husband anywhere in his evidence.  She was then kept in the dark in terms of the Husband’s spending, savings and income over the years (see paragraphs 4 and 5 of her 5^th Affirmation) (P8: 2397). 

33. As submitted by Senior Counsel Miss Yip S.C., without such extensive discovery, both the Wife and the Court would have to accept whatever it is worth asserted by the Husband throughout these years whilst he was undisputedly maintaining “two families” through the use of income and resources which, according to the Wife’s case, might have formed part of the family assets.  In the absence of full and comprehensive financial disclosure by the Husband over these years, the Court would be left in limbo when it comes to discharge its investigative role and function over those factors under Section 7 of the Matrimonial Proceedings and Property Ordinance, Cap.192 when determining ancillary reliefs.  I entirely agree with Miss Yip S.C.  I am satisfied that any hardship likely to be caused to the Wife without the extensive discovery of the finances of the Husband outweigh any possible prejudice to the Husband if disclosure is to be allowed.  In any event, it is only the scope and extent of discovery rather than prejudice that the Husband is now contesting against disclosure.   

34. The Husband’s other contention that AFS for 4 years of UB and SW had already been produced and there is a single joint expert (“SJE”) undergoing valuation of the 2 companies UB and SW is not accepted.  In my view, the SJE’s valuation of the 2 companies merely provides the asset worth at present.  It does not reflect the historic business turnover and the Husband’s finances throughout the years.  It is only through comparison of historic AFS on a yearly basis that a full and comprehensive scenario as to the Husband’s finances could be explored, not to mention whether any diversion of family assets could be revealed.  This is again a live issue to be determined at the ancillary relief trial proper.  The AFS are particularly important since it is the Husband’s case that the 2 companies of UB and SW had been his main sources of financial income throughout these years for supporting himself and the ‘two families’.

35. For the above reasons, I am convinced that the Husband should provide the AFS of UB and SW as per paragraphs 1(b) and (c) of the Wife’s Discovery Summons. I will so order.

Amex Card Statements

36. The Husband has so far disclosed statements from February 2014 to May 2014 in his Form E (P2: 357 to 374) and from August 2014 to March 2015 (P6 : 2046 to 2084).  There is no reason why the intervening months which are missing should not be produced.  Hence, I will so order the Husband to produce the statements for the month of June and July 2014.  In any event, Husband’s Counsel Mr. Yim already confirmed those were inadvertently left over and would be provided.

37. As disclosure is a continuing obligation of the parties, I will also order the Husband to produce the Amex Card Statements from April 2015 onwards up to present.

38. The issue which remain to be resolved is since when should the Husband disclose his Amex Card Statements ?  Relying upon K v. K (supra), the Wife is seeking disclosure since May 2011 which is 3 years prior to the Husband’s Form E dated 27 June 2014 (P2 : 246 to 379) on the footing that the statements not only relate to the needs of the Husband and the Wife, it is also indicative of the disputed issue whether the 2^nd Respondent is financially dependent or not dependent on the Husband. 

39. Counsel Mr. Yim for the Husband in his Skeleton Submissions referred this Court to the normal period of disclosure that is required of in Form E for credit card statements is 3 months only.  The Wife was unable to justify why historical credit card statements beyond 3 months is necessary.  The Wife’s contention of the statements produced so far being redacted was also not properly understood by the Husband since this had never been the case.

40. Whilst credit card statements may reveal the historic style of spending of the Husband, the Wife as well as the 2^nd Respondent both of whom had been provided with a supplementary card by the Husband, and a proper read-through may assist in determining the respective parties’ living style and standard, I believe those already disclosed credit card statements by the Husband which included the Wife’s and 2^nd Respondent’s spending had readily achieved such aim and objective.  Unless there are special and extraordinary circumstances of which I cannot find any from the Wife, I fail to see how much more assistance for the additional disclosure of, say, few more years back to May 2011 would assist the Wife.  Hence, I agree with Counsel Mr. Yim that the Husband had made sufficient disclosure of his Amex Card Statements.  I refuse this item of claim of the Wife in the Discovery Summons.

Securities Accounts Statements

41. The Wife is seeking disclosure since May 2011 which is 3 years from separation.  The Husband so far disclosed such statements from April 2014 to September 2014.  In his Answer, the Husband made reference to those bank statements of one of his savings account, namely, the “628” account with the Bank of China (of which disclosure was also sought by the Wife under item (g) of the Discovery Summons) which is the settlement account for securities investment.  Accordingly, it is not necessary to disclose the Securities Accounts Statements.  The bank statements of this “628” account covers the period from 26 July 2013 to 31 October 2014.

42. I do not accept the Husband’s argument.  The fact that the “628” settlement account shows moneys in and out from stock investments does not tell the complete picture.  It is only when there are buy and sell transactions then entries would appear in the bank statements.  The bank statements by itself would not show the quantity and value of stocks from time to time kept in the Securities Account which remain to be sold.  Moreover, Securities Account Statements would show the frequencies of buy and sell which is indicative of the Husband’s pattern of investment of which bank statements would not show. 

43. As I have pointed out in one of the earlier hearings, it is noted by this Court that the Husband’s membership status as an investor with the Bank of China is “Diamond Star” which is the top and highest tier (P8 : 2225) within the 4 types of membership of :-

  - ‘Bright Star’ (below HK$300,000);

  - ‘Silver Star’ (HK$300,000 or above to below HK$3 million);

  - ‘Gold Star’ (HK$3 million or above to below HK$30 million) ;

   and

  - ‘Diamond Star’ (HK$30 million or above) 

44. It is also noted from the Securities Account Statement dated 30 September 2014 that the accumulated transaction amount updated since last review was up to HK$78,231,840 (P8 : 2196).  In my view, this HK$78 million or so is a huge amount no matter when such amount starts to build up when comparing with the asserted income and finances of the Husband.  Looking at the transactions turnover objectively as recorded in the already disclosed Securities Account Statements, it is not difficult to see substantial sums of moneys were being invested from time to time. 

45. Given the volumes and values of the transactions of trading, I agree with the Wife that disclosure of such Securities Account Statements from May 2011 is totally justifiable and also assist the Court to accurately determine the financial resources of the Husband.  I will allow such item of disclosure in the Discovery Summons.  

Bank Accounts Statements

46. The Wife is seeking disclosure of bank statements of 3 accounts of the Husband (2 savings accounts abbreviated “538” and “628” accounts, 1 current account abbreviated “986” account) with the Bank of China. 

47. The Wife’s stance is simply that the 3 accounts are highly inter-linked.  The “538” account appears to be the main account for receiving bonus and dividends from the Husband’s companies, that is, UB or SW over the years (P2 : 525 to 526). The “628” account apart from being used as the settlement account for securities investment, might also had been used for receiving bonus and dividends (P2 : 525 to 526).  The “986” account is the current account for making cheque payments.

48. Same as in those earlier requests, the Wife is seeking disclosure of bank statements from May 2011 onwards save and except for those months where statements had already been produced.  Such request is to establish the Husband’s historical financial incomes and outgoing provisions during the so-called ‘tri-partes’ relationship.  

49. The Husband referred to the requirement of 12 months bank statements disclosure specifically set out in the Form E notwithstanding which he had, in addition, produced statements from November 2012 to May 2015 for the “538” account (P8 : 2229 to 2235); statements from May 2014 to October 2014 for the “628” account which was closed in October 2014 (P8 : 2192 to 2193); and answers for various cheque payments and withdrawals with copies of cheques from August 2013 to February 2015 for the “986” checking account (P7 : 1909 to 1912 and P8 : 2240 to 2272).  Such disclosure already exceeded that was normally required of in the Form E.

50. The Husband further acknowledged his obligation to provide further updated statements for 2 of the remaining “538” and “628” ongoing bank accounts.

51. Husband’s Counsel Mr. Yim in his skeleton submissions made reference to the observation of Nicholas Mostyn QC that ‘copy bank statements are cheap to obtain but they are expensive to analyse’.  Reference was also made to the words of Ribeiro PJ in LKW v. DD [2010] 13 HKCFAR 537 that the court should avoid ‘any attempt to engage in costly and often futile retrospective investigations of the failed marriage which tend to deplete the parties’ (and the court’s) resources and to increase antagonism and discourage settlement”.

52. In my view, the ultimate consideration is whether disclosure of the historic bank statements back to May 2011 is necessary and fair so as to ensure justice is done in the case with minimal prejudice (if any) or inconvenience to the party against whom discovery is sought, namely, the Husband.  I am satisfied that the historic bank statements are relevant and necessary for those reasons which are set forth above on the AFS.  There is no contention as to existence of those historic bank statements.  The Husband’s contentions are cost-related which contention should not be giving way to justice and fairness to parties in litigation.

53. I agree with Senior Counsel Miss Yip SC, that the 3 bank accounts are highly inter-linked.  Moreover, I also believe disclosure of such historic statements would assist the Court at the ancillary reliefs trial proper in resolving the issue as to whether there were diversion of assets by the Husband.

54. I will allow such item of disclosure by the Wife in the Discovery Summons. 

BOC Card Statements

55. The Wife challenged the Husband for not disclosing this Bank of China Visa Infinite credit card in his Form E dated 27 June 2014.  Upon being asked by the Wife, the Husband in his Answers then attached the monthly statements for this credit card from May 2014 to March 2015. 

56. The Husband’s explanation is that this Visa Infinite credit card was only issued in April 2014. The statements since May 2014 had been produced under the Husband’s Answer (P7 : 1913).

57. Provided that if the Husband is able to produce written confirmation from Bank of China as to the date of issuance of this Visa Infinite credit card, I find the Husband had fulfilled his obligation of disclosure on this item.  In the event that no such proof is forthcoming, I find the Wife’s request fails for the same reasons which I have set forth above for the Amex Card Statements, that is to say, I do not see any additional disclosure of historic credit card statements would add assistance to the Wife’s case against the Husband. 

58. Accordingly, I refuse this item of claim of the Wife in the Discovery Summons.

Costs

59. On the question of costs, I fail to see any reason why costs should not follow the event.  Accordingly, I order that the Wife’s costs of this application be paid by the Husband, to be taxed if not agreed.

60. I also grant Certificate for Senior Counsel.

61. This is a costs Order nisi which will be made absolute if no application to vary it is made within 14 days.

Orders

62. For the above reasons, I now grant the following Orders :-

(a)  The 1^st Respondent (Husband) do within 21 days from the date of this Order provide the following documents to the Petitioner (Wife), namely :-

(i)  Copies of the audited financial reports of UB since its incorporation up to present (save and except such reports which have already been produced);

(ii)  Copies of the audited financial reports of SW since its incorporation up to present (save and except such reports which have already been produced);

(iii)  Copies of all complete securities account statements in respect of Securities Account No. 012-xxx-63-xxxxx-6 with the Bank of China (Hong Kong) from May 2011 onwards up to present (save and except such statements which have already been produced);

(iv)  Copies of all complete bank statements in respect of Savings Account No. 012xxx10xxx538 with the Bank of China (Hong Kong) from May 2011 onwards up to present (save and except such statements which have already been produced);

(v)  Copies of all complete bank statements in respect of Savings Account No. 012xxx19xxx628 with the Bank of China (Hong Kong) from May 2011 onwards up to present (save and except such statements which have already been produced); and

(vi)  Copies of all complete bank statements in respect of Current Account No. 012xxx00xxx986 with the Bank of China (Hong Kong) from May 2011 onwards up to present (save and except such statements which have already been produced).

(b) The 1^st Respondent (Husband) do pay the Petitioner’s (Wife’s) costs of this application, including all costs reserved, to be taxed if not agreed;

(c) There be Certificate for Senior Counsel.