CHAN CHUN CHOI v. CHAN CHIU HON FONG, FLORENCE

1998, No. 35
(Civil)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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(ON APPEAL FROM THE DISTRICT COURT

DIVORCE JURISDICTION NO. 2138 OF 1986)

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J U D G M E N T

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Keith J. (giving the first judgment at the invitation of Nazareth V.-P.):

Introduction

1. This is an appeal from an interlocutory order made in ancillary relief proceedings by Deputy Judge Leung in the District Court. In order to appreciate the issues which arise on the appeal, an understanding of the background facts is necessary.

The facts

2. The Petitioner ("the husband") and the Respondent ("the wife") were divorced in 1986. The ground for the divorce was that they had lived apart since about April 1981. In due course, the wife applied for maintenance for her and the two children of the family. Her case was that she had made a substantial contribution to the husband's business, and that she should therefore share in the husband's present wealth.

3. In an affidavit sworn by the wife in the maintenance proceedings, she referred to a savings account with the Hong Kong Bank ("the Bank"). She deposed that this account was jointly held by her and her husband, and that it was "the best evidence to demonstrate [their] joint effort to fight for the family business at that time". She added that the passbook for this account had been kept by her, and that whenever the husband wanted to withdraw money from the account, he had to obtain the passbook from her. She claimed that in that way she had "good control of the finance of ... [the] family business at that time".

4. Copies of four passbooks relating to this account had already been exhibited to another document filed in the maintenance proceedings. The names of the husband and the wife had been written in hand on the first page of each of the copies, and the copies therefore purported to show that the account was in their joint names. The period covered by the four passbooks was May 1981 to October 1985, and in her affidavit the wife made the point that if she and the husband had indeed been living apart since about April 1981, they could not have operated joint accounts together after that. Her argument was that the husband had lied about when they had separated in order to conceal the fact that she had continued to contribute to his business.

5. The husband denies that he was a joint holder of the account. His case is that it was the wife's account only. He believes that the handwritten entries in the passbooks purporting to show that he was a joint holder of the account are forgeries. Accordingly, his solicitors requested the wife's solicitors to make the originals of the passbooks available for inspection. Her solicitors' reaction was that they would only be produced at the hearing of the application for maintenance. The next two things which happened were as follows. First, the Bank confirmed by letter that the husband had never been a holder of the account. Secondly, the wife's solicitors informed the husband's solicitors that the four original passbooks could not be located. It was against that background that the husband applied by summons for an order that the originals of the four passbooks be produced for inspection.

6. A week or so later, the wife's solicitors wrote to the husband's solicitors explaining the circumstances in which the passbooks had gone missing. However, the wife subsequently found one of the passbooks, and the husband's solicitors were invited to inspect it. When they did so, they discovered that the front page (which had borne the names of the account holders) had been torn off.

7. The husband's summons first came before Deputy Judge Geiser on 17th October 1997. He ordered the summons to be adjourned to a date to be fixed, but he also ordered the parties to attend the hearing for cross-examination. By the time the summons came before Deputy Judge Leung on 18th November, the wife had sworn a further affidavit explaining in detail how the three passbooks came to be missing and how the front page of the one passbook which she still had had been torn off. However, by then the Bank had confirmed, not merely that the husband was not a joint holder of the account, but also that the account holder was the wife alone. It was in these circumstances that Deputy Judge Leung refused to permit the wife to be cross-examined, and dismissed the husband's application for the originals of the four passbooks to be produced. Those are the orders which the husband now appeals.

The judge's reasoning

8. The reasons which the judge gave for the orders he made are clear and concise. It had by then been established that the account had indeed been in the wife's name only. The account therefore did not support the wife's assertion that the husband had lied about when they had separated in order to distance the wife from his business. Henceforth, the originals of the passbooks would only be relevant to the issue of the wife's credibility. On that issue, the husband's case was that the wife's credibility would be seriously impaired if his claims were ultimately accepted, namely that she had forged the passbooks by adding his name as a joint account holder on them, and that she had told lies about the loss of three of the passbooks and the circumstances in which the front page of the fourth passbook had been torn off. As the judge put it, all that was left were

"the collateral matters of credibility and possible criminal enquiry. I do not consider it conducive to good case management to deal with such collateral matters at this stage. Credibility should be dealt with in context at the ancillary relief hearing proper and it is undesirable that I should form any view on it long before I start to hear the main proceeding."

The attack on the judge's reasoning

9. The primary attack on the judge's reasoning by Mr. Rimsky Yuen for the wife in his careful and moderate submissions is as follows. Deputy Judge Geiser had ordered the parties to attend the hearing for cross-examination. No appeal had been lodged against that order, and it remained valid and subsisting. In those circumstances, unless there were good reasons to the contrary, Deputy Judge Leung should have allowed cross-examination to take place. Indeed, even without Deputy Judge Geiser's order, cross-examination should have been allowed because the issue to which the cross-examination would have been addressed was a discrete one, it could be disposed of quickly, and the hearing of the application for maintenance would have been shortened.

10. One must not overlook that Deputy Judge Leung's order was an exercise of judicial discretion. As such, the powers of intervention by an appellate court are severely circumscribed. For my part, I do not think that the husband's arguments begin to show that the exercise by the judge of his discretion was outside the generous ambit within which reasonable disagreement is possible. The circumstances had changed since Deputy Judge Geiser had ordered the attendance of the parties for cross-examination. The confirmation by the Bank that the account was only in the wife's name meant that the originals of the passbooks were no longer relevant to whether the husband had lied over when he and his wife had separated. In view of the change of circumstances, it was open to Deputy Judge Leung to decide whether cross-examination was still necessary or even desirable in order to resolve the question of whether the originals of the passbooks should be produced for inspection.

11. That question was, to a great extent, dependent on whether the originals of the three remaining passbooks were indeed lost. If they were, there would have been little point in ordering the wife to produce them. But to decide whether they were indeed lost, it would have been necessary for the wife to be cross-examined. In my opinion, the judge was entitled to conclude that the need to decide whether they were indeed lost was far outweighed by the undesirability of determining an issue of credibility at the interlocutory stage. The obvious time for the determination of all issues of credibility was the application for maintenance itself, especially if it turned out that Deputy Judge Leung was not going to preside over the application.

12. In any event, the attack on the wife's credibility was not going to be considerably enhanced by the production of the originals of the passbooks for inspection. The points which the husband wished to make could, for the most part, be made by reference to the copies. Deputy Judge Leung recognised that because, although he dismissed the summons for the production of the originals, he said in terms that that was without prejudice to the "parties' rights to raise the matters again in the later hearing". By that, I believe he meant that it would still be open to the husband's counsel to cross-examine the wife at the application for maintenance on the issues raised by the passbooks. That is borne out by the judge's own note of what he said at the conclusion of the hearing:

"Cross-examination by [husband] as requested by Summons not allowed at this point... All matters will be dealt with in hearing proper."

For my part, I would leave it to the judge who hears the application for maintenance to decide whether, in the light of that cross-examination, it would be either desirable or necessary to order the wife then to produce the originals of the passbooks.

13. Finally, it was suggested by Mr. Yuen in his helpful skeleton argument that Deputy Judge Leung had misunderstood some of the facts. For example, it is said that he thought that the passbooks were relevant only to the issue as to when the parties separated, rather than to whether the wife continued to contribute to the husband's business. Again, it is said that the judge thought that the one passbook which the wife had not lost had been produced at the hearing before Deputy Judge Geiser when it had not been. I am not convinced that the judge erred in these respects. After all, the date when the parties separated was itself relevant to whether the wife continued to contribute to the husband's business. And even if the one passbook had not actually been produced at the hearing before Deputy Judge Geiser, the fact is that its recent discovery was expressly referred to. Indeed, even if the judge had been in factual error in these respects, it would not in any way have undermined the compelling reasoning which persuaded him to reach the conclusion which he did.

Conclusion

14. For these reasons, this appeal should, in my opinion, be dismissed.

Liu J.A.

15. I agree. This appeal involves, at its core, case management. Deputy Judge Leong has not been showed to be plainly wrong. I wish to say a word or two on the Order filed. On 18 November 1996, the Order was made by the Deputy Judge. In his signed judge's notes, reference was made to two matters. First, the court had not ruled on, inter alia, production and further, all matters were still open at the hearing proper and would be dealt with at that hearing. The Deputy Judge did not provide any written reasons until he was invited by the husband to do so. And in his written reasons for his decision given on 27 November 1997, this is what the Deputy Judge said:

"The Order I actually made at the hearing is to refuse the Petitioner's application to cross-examine the Respondent but in effect is to dismiss the Petitioner's summons for an order of production, without prejudice to the parties' rights to raise the matters again in the later hearing."

16. The judge's notes and his written reasons given later are consistent but they would seem to be both at variance with the Order drawn up and perfected. This will have to resolved.

Nazareth, V.-P.

17. I also agree with the conclusions expressed by Keith J and his reasons.

18. Clearly Deputy Judge Geiser's order of 17 October 1997 was intended to enable the matter of the production of the passbooks to be determined, if the additional affidavit he called for was not sufficient, by cross-examination.

19. I have to confess that initially it did seem to me that the production of the passbooks was called for but on closer consideration of the matters Keith J has adumbrated, I am not persuaded that such an order would be right given the wife's latest affidavit deposing to loss of those passbooks, which it should be noted was made after Judge Geiser's order. The issue therefore becomes one of credibility and clearly this should be determined in the context of the main trial.

20. Accordingly, I am of the view that Deputy Judge Leung was right in his conclusion. At the very least his conclusion cannot be said to be outside the general ambit of reasonable disagreement. Upon that basis there would be no cause for intervention by this Court.

21. I concur also in the view expressed by Keith J that the matter of production of the documents, and that of credibility, would best be left to the judge hearing the trial.

22. Accordingly, the appeal is dismissed.