PMCL also known as LMC also known as KLMC v. AKK also known as KAK AND ANOTHER

FCMC 11521 / 2015

[2024] HKFC 205

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 11521 OF 2015

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BETWEEN

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DECISION
(R1’s Summons dated 28 October 2024)

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A. The Summons

1.  The Trial on ancillary relief dispute and preliminary issue of this case (with 10 days reserved) will commence on 2 December 2024, about 3 weeks from today. The Trial dates were fixed last year on 22 December 2023.

2.  On 28 October 2024, R1 took out a Summons (“Summons”) for the following relief:

2.1. Paragraph 1 - leave to take out the Summons ex parte;

2.2. Paragraph 2 – direct both parties to release all funds in the KPL account, and to distribute according to the respective urgent needs of each party, to be accounted for at the AR Trial. P shall have cash of HK$3,000,000 (already distributed) and the remaining be distributed to R1, or to be distributed urgently in the proportion deems fit by the court;

2.3. Paragraph 3 - leave be granted to R1 to adduce further evidence one week before the AR Trial;

2.4. Paragraph 4 – direct P to forthwith make full and frank disclosure of the statements of a bank account at the Standard Chartered Bank held in the joint name of P and her late father (“SCB Account”) from September 2014 to reflect the historical transactions and the closing balance.

3.  On the factual background and procedural history of this case, I refer to my previous decisions, in particular [2023] HKFC 34 on R1’s application for joinder, discovery and section 18 declaration, [2024] HKFC 99 on P’s application to compel the filing of Form E, and [2024] HKFC 125 on R1’s MPS and stay of proceedings application.

4.  The relief sought by the Summons will affect not only the conduct of the AR Trial but also the parties’ substantive rights. Both parties have the right to be heard. There is no reason to hear this Summons ex-parte.

5.  On 28 October 2024, I directed that a hearing be fixed for today to consider whether leave should be granted to R1 to take out the Summons, and if leave is granted, the Summons is to be heard immediately thereafter.

6.  P appeared at today’s hearing by her legal representative. P’s primary position is to oppose leave for the reasons that this is a very late application (about one month before the commencement of the trial), and R1 did not even mention his intention to issue the Summons at the PTR hearing on 7 October 2024. If this court is minded to grant leave to R1, solely for practical reason, P will remain neutral and raise no opposition.

7.  There is no reason for the extreme lateness of the Summons. R1 has not even explained why he chose to take out the Summons at this very late stage. His supporting affirmation is by and large a regurgitation of the matters previously raised by him and rejected by the court. Nonetheless, solely for case management and expedient disposal of the matter, I hear the Summons today. The parties should not take this as their entitlement to have any late Summons be heard before the AR Trial.

8.  The parties have attended the hearing and argued the Summons, Paragraph 1 of the Summons is therefore overtaken by event.

9.  The issues to be dealt with today are thus:

9.1. Specific discovery of SCB Account statements;

9.2. Leave to adduce further evidence; and

9.3. Distribution of KPL funds.

B. SCB Account Statements

10.  R1 sought discovery of the statements of the SCB Account, which is a joint account held by P and her late father.

11.  One of the questions in R1’s 3^rd Questionnaire is the production of statements of this bank account from September 2014 onwards in P’s possession, custody and power. P was ordered to answer this question by an order dated 13 February 2023.

12.  P answered on 14 April 2023 that she did not have any recollection of having this bank account with her late father, she would make enquiry with the bank for copies of the statements and would provide the same to R1 when available.

13.  At the hearing, the parties agreed that P has recently provided R1 with the bank statements of this account from December 2016 onwards showing zero balance, but not those dated earlier. Thus, the scope of R1’s application today is limited to the production of bank statements from September 2014 to November 2016.

14.  P said that the bank statements dated earlier than December 2016 are not in her possession, custody and power as she does not have those records and was told by the bank that it no longer has such records.

15.  R1 argued (which P denied) that P deliberately withheld the request for statements from the bank until after the expiry of the 7 years storage period. R1 also contended that this is one of the bank accounts where P hid her money. These are matters that R1 may argue at the AR Trial if he so wishes.

16.  The court has already made an order on 13 February 2023 requiring the production of the bank statements (including the period from September 2014 to November 2016) that are in P’s possession, custody and power. There is no evidence that the bank statements for September 2014 to November 2016 are within P’s possession, custody and power. I do not see any basis for this court to make another order compelling the production of these bank statements.

17.  For completeness, R1 has also said at the hearing that P failed to produce these statements pursuant to an order made by Judge Melloy in September 2019. However, upon checking by this court, Judge Melloy’s order dated 11 September 2019 does not cover the SCB Account. The parties agreed.

C. Leave to File Further Evidence

18.  The application for leave to file further evidence (Paragraph 3 of the Summons) is devoid of merits. R1 has made similar applications to the court and failed. The latest application was made by R1 on 4 October 2024 which was dismissed. There is nothing new in the present application.

19.  R1 had already been reminded in previous hearings that (1) the court will not give blanket permission for the filing of new evidence, the applicant has to produce draft affirmation or draft witness statement intended to be adduced for the court’s consideration; and (2) given the closeness to the trial, the court will very unlikely allow the filing of new evidence save for exceptional circumstances with very good reason for the delay, which are to be proved by the applicant. It is with regret to note that despite these reminders from this court, R1 took out the present application once again without explanation for the delay, and without any draft affirmation nor draft witness statement, nor particulars of further evidence that he wishes to adduce at trial. This application is bound to be dismissed.

D. KPL Funds

20.  The KPL funds is a main part of the matrimonial assets. I was informed by the parties that upon R1’s request for the distribution of the KPL funds to pay legal fees, the parties agreed to the withdrawal of HK$3 million from the funds by each of the parties last month (October 2024). No Notice to Act is filed for R1 so far. P opposed the withdrawal and distribution of the remaining funds in the KPL account prior to the determination of the AR Trial.

21.  It is R1’s case that he and the children need the funds for daily expenses. He said that the family assets had been controlled by P and they have been cash starved by P. R1 relied on sections 4 to 8 of MPPO for this application.

22.  This is another attempt of R1 to raise the same argument made in his MPS Summons dated 7 December 2023. Although R1 has not specifically referred to the release of KPL funds in the MPS Summons, the substance of his argument is the same. I have dismissed the MPS Summons for the reasons set out in the decision numbered [2024] HKFC 125, in particular paragraphs 19 to 34. The same reasons apply.

23.  The distribution of matrimonial assets, if any, is an issue to be determined at the AR Trial. There is no basis to order a distribution of these funds without both parties’ consent prior to the determination of the ancillary relief dispute at the AR Trial.

E. Conclusion

24.  This is R1’s another attempt to re-argue the same matters which had been determined by the court in previous applications. It is an abuse of process, and is frivolous and vexatious. P has by correspondence invited R1 to withdraw the Summons to save costs. No response was received from R1.

25.  By reason of the above, the Summons is dismissed.

26.  [submission on costs]

27.  There is no reason to depart from the starting point that R1, the unsuccessful party, shall pay P’s costs of the Summons. Accordingly, R1 is ordered to pay P forthwith the costs of this Summons summarily assessed at HK$20,000.

28.  P do draw up, file and serve this order.