C, S (formerly known as C, S) v. W, CT

FCMC 11994/2021

(formerly FCMC 5660/2020 & FCMC1930/2019)

[2025] HKFC 75

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11994 OF 2021

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J U D G M E N T
(Ancillary Relief)

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1.  This is the parties’ application for ancillary relief.

2.  The sharing of the children’s expenses was resolved on the last day of the trial and therefore the only remaining dispute is the division of matrimonial assets.

3.  On the day of the trial, the parties’ open proposals were as follows:

1)  The Petitioner (“the Wife”):

a)  The former matrimonial home (“17A Bel-Air”) and Car Park 98 be sold in the open market at a price not lower than $37,100,000 (unless otherwise agreed by the parties). The proceeds of sale after deducting all necessary and related expenses be shared equally.

b)  The parties retain their own assets.

2)  The Respondent (“the Husband”):

a)  On the assumption the court accepts the Husband’s expert on the valuation of the Wife’s company (“SCBS”), the Husband proposes the Husband be allowed to keep his own assets and the Wife should transfer / pay the following to the Husband:

(i)  Her share in the former matrimonial home (“17A Bel-Air”);

(ii)  The debenture of Harrow International School Hong Kong (“the Harrow Debenture”)

(iii)  The Wife’s Aberdeen Marina Club Membership (“the AMC Membership”)

(iv)  A lump sum of $44,770,385 to the Husband.

b)  If the court accepts the Wife’s expert on the valuation of SCBS, the Husband proposes a 60:40 split of all matrimonial assets, with the Husband obtaining 60% of all matrimonial assets. To equalize the asset distribution, the Wife should transfer / pay the following to the Husband:

(i)  Her share in the former matrimonial home (“17A Bel-Air”);

(ii)  The Harrow Debenture

(iii)  The Wife’s Aberdeen Marina Club Membership (“the AMC Membership”)

(iv)  A lump sum of $7,549,975 to the Husband.

4.  All monetary figures are in Hong Kong dollars unless otherwise specified.

A.  BACKGROUND

5.  As at the date of the trial, the Wife was 41 years old and the Husband was 40 years old. The parties have two children at ages 9 and 8 (as at the date of the trial).

6.  I set out the chronology of the salient facts below:

Date	Event
January 2012	Parties got engaged. At the time, the Wife was working for Messrs Simpson Thatcher & Bartlett and the Husband was working for Messrs Richards Butler.
September 2012	The Wife commences work at Messrs Ogier
9 January 2013	The Husband signed an IOU with his father (“the Father”) for the sum of $7,300,000 with the intention to purchase the parties’ first matrimonial home (“30B Bel-Air”). Although the IOU was signed for $7,300,000, the actual sum lent was $7,197,000. The Wife does not accept the purported loan is a genuine loan in which the Husband has to repay.
30 April 2013	The parties purchased 30B Bel-Air subject to an existing tenancy.
May 2013	The Husband joins Messrs Cleary Gottlieb Steen & Hamilton (“Messrs Cleary”)
3 November 2013	Parties got married.
2014 - 2022	During this period, the Husband borrowed a total sum of $6,879,125 from the Father. The Wife disputes the veracity of these loans.
May 2014	Parties moved into 30B Bel-Air.
16 July 2014	The parties’ first child was born (“the Son”).
27 June 2015	The parties purchased a pre-developed property in UK.
October 2015	The Wife set up 2 companies: one a holding company and one a corporate vehicle for carrying out business (collectively referred to “SCBS”). The business of SCBS was to help clients set up investment funds in the Cayman Islands. The Husband and Wife each owned 50% of the shares of SCBS.
26 January 2016	The parties’ second child was born (“the Daughter”).
1 April 2016	The Wife resigned from Messrs Ogier.
23 December 2016	30B Bel-Air sold at approximately $16 million.
6 July 2017	The Husband signed an IOU with the Father to borrow $5,000,000 for the purchase of their former matrimonial home (“17A Bel-Air”).
1 August 2017	The Husband transferred his 50% shares in SCBS to the Wife.
24 August 2017	Parties purchased 17A Bel-Air and Car Park 98 using net proceeds of sale from 30B Bel-Air. The Husband claims the remaining sum was financed through the Father’s loan. The Wife disagrees the sum from the Father was a loan.
January 2018	The Husband quitted his job at Messrs Cleary.
February 2018	The parties moved in 17A Bel-Air.
May 2018	The Wife purchased the Harrow Debenture at $4,450,000.
May 2018	The Husband joined Messrs Li & Partners as a consultant.
14 November 2018	The Husband purchased his Hong Kong Jockey Club membership (“the HKJC Membership”) at the price of $450,000.
18 February 2019	The Wife issued wardship proceedings against the Husband after the Husband took the children away on 17 February 2019. There is a dispute between the parties as to how the Husband came to leave the premises with the children and whether the Wife knew of the same.
22 February 2019	The Wife filed the divorce petition on grounds of unreasonable behaviour.
25 February 2019	By reason of the parties’ mutual undertaking of non-molestation, Deputy District Judge KK Pang (as he then was) (“Judge Pang”) made a number of orders and called for a social investigation report.
May 2019	The Wife and the children move out of 17A Bel-Air.
5 August 2019	The Husband commenced work as an in-house legal counsel at CMB International Capital Corporation Limited.
2 July 2020	The Wife issued a fresh petition for divorce on the ground of one-year separation by consent.
29 December 2020	After 8 days of trial, Deputy District Judge Egerton made orders relating to the custody care and control, and access of the children.
24 November 2021	The Wife issues a fresh divorce petition based on the ground of two-year separation.
8 November 2022	Decree Nisi granted.

7.  I shall elaborate the parties’ respective case on specific issues in the relevant sections of this judgment.

B.  THE ISSUES

8.  The parties have lodged a Joint Statement of Issues in Dispute (“the Joint Statement”). However as the trial progressed, some of the issues listed in the Joint Statement have either fallen away or have been reframed to be relevant to other matters. I therefore summarize the issues in dispute as at the date of the parties’ closing submissions as follows:

1)  Whether the Father’s contribution to 30B Bel-Air, 17A Bel-Air, and Car Park 98 were gifts or loans to the parties and/or the Husband.

2)  The Wife’s Assets:

a)  The correct value of SCBS and the correct valuation methodology to be adopted.

b)  Whether the withdrawals from SCBS in the sum of $16,706,400 should be added back to the Wife’s assets.

c)  Whether the director’s loans made to the Wife from SCBS should be counted when calculating the Wife’s assets.

3)  The Husband’s Assets:

a)  Whether the loans from the Father in the total sum of $6,457,000 (or $6,879,125 as deposed by the Father) should be counted as part of the Husband’s liabilities when calculating the Husband’s assets.

4)  Whether the following sums should be added back to the parties’ assets and/or matrimonial assets:

a)  The $1,000,000 transferred by the Wife to the Father.

b)  The value of the Husband’s HKJC Membership.

c)  The value of the Husband’s Weimob Inc. Shares.

d)  The Husband’s Patek Philippe watch the Wife claims he is in possession of.

5)  Whether there are good reasons for departing from sharing the matrimonial assets equally.

9.  I note there are several matters that were either posed as an issue in dispute in the Joint Statement or were disputed in the Joint Schedule of Assets and Liabilities (“the Joint Schedule”) but are no longer argued in the parties’ closing submissions and were not put to the parties during cross-examination. These issues are as follows:

1)  Whether the Husband should be responsible for half share of the children’s school fees from 2018 up to the date of the trial.

2)  Whether the single parent and child tax allowance claimed by the Husband should be added back to the calculation of the matrimonial pot.

3)  Whether the loss resulting from Wife’s refusal to sell 17A Bel-Air should be counted against the Husband’s assets.

10.  The first two aforesaid issues have now been settled in the parties’ agreement on the children’s financial arrangements by the order dated 12 August 2024.

11.  Regarding the purported loss of failing to sell 17A Bel-Air and Car Park 98 earlier, parties’ counsel have not addressed the said issue in their closing submissions and have not cross examined the parties on the same. Moreover, the Husband’s narrative affirmation filed on 29 March 2023 (“the Husband’s Narrative Affirmation”) makes no mention of the same. Given the lack of evidence before me on this issue and the speculative nature of the purported loss, I am unable to make any ruling on this issue.

C.  MATRIMONIAL ASSETS

12.  In considering the proper ancillary relief order to be made, the court is to consider the factors set out in s.7 Matrimonial Proceedings and Property Ordinance. HHJ Wong in the case of SSLT v SMFC [2019] HKFLR 458 has succinctly set out the well-known principles enunciated in LKW v DD [2011] HKFLR 106 to be considered when considering ancillary relief applications. Paragraphs 25 and 26 of HHJ Wong’s judgment reads as follows:

25. The principles upon which this case is to be considered are the conventional ones, namely those set out in section 7 of MPPO which confers a broad discretion on judges dealing with ancillary relief. That said, these principles are to be interpreted in the light of the Court of Final Appeal judgment in LKW v DD [2011] HKFLR 106, (2010) 13 HKCFAR 537. In that case, Riberio PJ referred to the four principles which are applicable to all ancillary relief proceeding, viz, (1) the objective of fairness: [56], (2) rejection of discrimination: [57], (3) the yardstick of equal division: [58] – [61] and (4) avoidance of ‘minute retrospective investigation’: [62] – [69].

26. Ribeiro PJ further set out the steps to be taken by the courts in undertaking the exercise. In brief, they are:

(1) The ascertainment of the financial resources of each of the parties calculated as at the date of the hearing: [71] to [73];

(2) The assessment of the parties’ financial needs. If the total resources are not enough to meet the parties’ needs, the s.7 exercise should stop at this step and there is no room to apply any sharing principle: [74]to [79];

(3) If surplus assets would remain after the parties’ needs have been catered for, the next step should normally be for the court to apply the sharing principle to the parties’ total assets, with a yardstick of equal division as part of that principle. This means that the total assets should be divided equally between the parties unless there is good reason for departing from an equal division: [80] to [82];

(4) In considering whether good reasons exist for departing from equal division, the answer is to be found in the terms of s.7 and the implicit objective of a fair distribution of the assets. Factors like source of the assets, conduct, financial needs, duration of the marriage, contribution to the family and compensation are all material considerations: [83] to [130]; and

(5) The weight to be given to each of the factors is a matter of discretion for the court: [131].

Parties’ undisputed assets and liabilities

13.  As set out in the Joint Schedule, the parties do not dispute the Wife has assets in the sum of $3,084,666 and the Husband has assets in the sum of $466,407.

14.  The parties also do not dispute they each have liabilities regarding salaries tax, and legal fees. The Husband also does not dispute the Wife also has liabilities for profits tax of SCBS. However, the parties have not provided a figure in the Joint Schedule or in their closing submissions to the court for the purposes of calculation. In such circumstances, I shall take the figures as stated in the parties’ latest Form E as being the correct figure. I set out the figures below:

1)  The Wife:

a)  Salaries tax: $820,062

b)  Profits tax for SCBS: $1,001,658

2)  The Husband:

a)  Tax: $332,448 ($27,704 x 12)

The Wife’s Disputed Assets and Liabilities

15.  The major dispute on the Wife’s assets and liabilities are as follows:

1)  What is the correct value of SCBS?

2)  Whether the director’s loans made to the Wife by SCBS should be counted as the Wife’s liabilities?

3)  Whether the Wife’s unexplained withdrawals from various bank accounts should be added back to the matrimonial pot?

4)  The proper value of other miscellaneous items.

Value of SCBS

16.  Pursuant to Judge Pang’s order dated 20 September 2022, leave was granted for each party to nominate one forensic accountant to conduct a valuation on SCBS. The Husband nominated Mr Wong of Roma Appraisals Ltd and the Wife nominated Mr Pan of Norton Appraisals Holdings Ltd.

17.  Each expert agreed there were commonly three approaches in conducting company valuations: Asset Based Approach, Income Based Approach, and Market Based Approach. However, the experts were unable to agree on the proper approach to be adopted and have therefore have arrived at very different valuations of the company.

18.  Mr Pan for the Wife adopted the Asset Based Approach and valued SCBS at $12,452,176. Mr Pan opined the Asset Based Approach was the more suitable approach for the following main reasons:

1)  SCBS is merely a vehicle for the Wife to conduct business. The business of the company is reliant on the Wife’s reputation and the customer’s willingness to conduct business with the Wife. Hence, SCBS’s profitability is dependent on the Wife.

2)  This valuation methodology does not require there be an assumption that the business is a going concern. In other words, the valuation methodology does not require the court to assume the Wife will continue to work for SCBS or that she will continue to operate SCBS in the same manner as she had done before.

19.  Though Mr Pan admits that some documents (such as cash flow statements) have not been provided by the Wife, Mr Pan is of the view that such documents are not necessary for the Asset Based Approach. Hence, even in the absence of some documents, Mr Pan was able to conduct the valuation properly and correctly.

20.  Mr Wong opined the Market Based Approach was the more appropriate valuation approach and valued SCBS at $82,800,000. Mr Wong explained he was of the view that the Income Based Approach would have been appropriate but he was not provided with the necessary documents, such as the business plan and financial forecast. He stated the Asset Based Approach was not adopted because such an approach could not reflect the market value of the business. Hence, Mr Wong chose to adopt the Market Based Approach.

21.  I have considered the evidence of the experts and their respective reports. I am of the view Mr Pan’s valuation method is the more appropriate method in the present case.

22.  Firstly, the Market Based Approach adopted by Mr Wong requires too many assumptions to be made in order for the valuation to be correct. During cross-examination, Mr Wong conceded his methodology assumes the Wife would continue to work in SCBS and continue to carry out the services she had done previously. The methodology also assumes that the company development would be normal. If the Wife leaves the company, Mr Wong concedes the valuation of SCBS would be affected. However, since he had no information on how much the Wife’s presence would affect the business, he was unable to comment any further.

23.  I agree with the submissions of leading counsel for the Wife, Mr Chan, that the Wife is not compelled to carry on her business and therefore it would be inaccurate for any valuation methodology to assume the same. The Wife has already given evidence that due to changes in the laws and various socio-economic factors, she is uncertain, if not pessimistic, about the future of her business. The Market Based Approach simply does not cater for the uncertainties raised by the Wife and does not address the fact that she is the principle service provider in the company, without which the company would have no business. I am of the view the Market Based Approach makes too many assumptions about the future which render the valuation to be unreliable in the present case.

24.  Secondly, I am of the view the comparables adopted by Mr Wong are inappropriate. The companies used as comparables are all listed companies or law firms. SCBS is a private company and cannot be compared to listed companies because listed companies are in a league of their own. Needless to say, listed companies are typically much higher in value due to the share prices, which are traded in the open market. The size of such companies in terms of operation and employees are much larger than SCBS. On those matters alone, SCBS cannot be compared against listed companies. Law firm comparables are also misleading as SCBS is not solely offering legal services. Having viewed the comparables used by Mr Wong, I do not find any of the comparables similar to SCBS. Hence, I am of the view that any valuation based on these comparables would be inaccurate and misleading.

25.  Thirdly, the Market Based Approach assumes the company can be sold in an open market. In my view, this is an erroneous assumption to make for private companies. Private companies, unlike listed companies, are not easily sold in the open market for a variety of reasons. In this particular case, SCBS’s business is dependent on the Wife’s skills and expertise, without which SCBS’s profitability is uncertain.

26.  By reason of the matters set out above, I do not accept the expert valuation of Mr Wong.

27.  I am of the view that Mr Pan’s valuation is more realistic and caters for the unique circumstances of SCBS. I agree with Mr Pan that SCBS’s business is highly dependent on the Wife’s participation and that she is the key person who brought customers into SCBS. I also accept that SCBS is merely a corporate vehicle for the Wife to conduct her business. She could easily close down SCBS and establish another corporate vehicle to conduct the same business. I therefore find Mr Pan’s valuation methodology, that is the Asset Based Approach, to be the more accurate valuation of SCBS. I find the proper value of SCBS to be $12,452,176.

Director’s Loans from SCBS

28.  According to the latest audited reports of SCBS, the director’s loans to the Wife made by SCBS amount to $21,493,139 as at 31 December 2022 and $15,897,826 as at 31 December 2021.

29.  The Wife’s junior counsel, Ms Tam, argued the director’s loans should be deducted from the value of SCBS or alternatively should be counted as the Wife’s liabilities. In her closing submissions, Ms Tam submitted the Wife’s primary position is that the director’s loans should be treated as written off, thereby deducting the same from the value of SCBS. Ms Tam submitted that due to the Wife’s inability to repay the said loans, the value of SCBS is now overinflated by counting the director’s loans as an asset to be recovered in some distant future.

30.  I disagree the director’s loans should be deducted from the value of SCBS. As suggested by Mr Chan in his cross examination of the Husband’s expert, there are various accounting methods to deal with the director’s loans: the loans can either be written off, rolled over year after year, set off by SCBS issuing dividends to the Wife, or repaid in cash by the Wife.

31.  Mr Pan had already taken into account the value of the director’s loans in his valuation of SCBS. Mr Pan was not asked whether the various scenarios suggested by Mr Chan would warrant a deduction in the value of SCBS. Mr Pan was not asked by counsel to address the scenario of writing off the director’s loans. Moreover, Mr Pan was never asked to clarify, on the assumption the director’s loans would be written off, whether the director’s loans should be deducted from his valuation amount in order to reflect the true value of SCBS.

32.  The assumption the Wife will never be able to repay or does not intend to repay the director’s loans is contrary to her evidence in her affirmation filed on 29 March 2023 (“the Wife’s Narrative Affirmation”). She clearly states in her Narrative Affirmation that she does not agree the loans should be written off, as it would have tax consequences for herself personally. She also states she may be able to pay the said sum if she had the proceeds from the sale of 17A Bel-Air. In other words, even on her own evidence, she does not rule out the possibility she may repay the loans to SCBS. Furthermore, she specifically points out that the director’s loans were made from clients’ retainer monies, pre-paid service fees etc. She does not rule out the possibility that SCBS may have to refund some of the said monies back to the clients. Hence, by extension, this must mean that in such situations, the Wife may make some repayments to SCBS in order to keep the company afloat or to keep some level of cash flow. In such circumstances, I do not accept the value of SCBS should be deflated by the director’s loans.

33.  Ms Tam’s alternative argument is that the director’s loans must be counted as part of the Wife’s liabilities. I disagree.

34.  I set out the director’s loans for the period from financial years 2017 to 2022 as below:

2017	2018	2019	2020	2021	2022
$10,371,310	$943,707	$8,290,436	$12,639,278	$15,897,826	$21,493,139

35.  From the above table, the following is apparent:

1)  There has been a repayment of director’s loans in the year of 2018.

2)  The Wife does not seem to have made any repayments to the director’s loans since 2018.

3)  The loans have been rolled over year after year.

4)  SCBS has allowed the outstanding loans to accumulate over the years while continuing to lend further sums to the Wife.

36.  By reason of the above matters, coupled with the Wife’s admission that SCBS is merely a corporate vehicle for her to carry out her own business, I am of the view it is highly unlikely for SCBS to enforce repayments of the outstanding loans against the Wife. This is consistent with the fact (and as conceded by the Wife) SCBS is wholly owned by her and she is the person making all the corporate decisions of SCBS. The Wife clearly states in her Narrative Affirmation she does not intend to write off the sums, and she does not have the means to make repayment. She has only nonchalantly mentioned that the sums “may be able” be used to repay even if she did receive any sales proceeds from 17A Bel-Air, without firmly committing to any repayment plan.

37.  In such circumstances, the director’s loans are akin to soft loans in which there is no immediate obligation for the Wife to make repayments and it is uncertain whether the Wife will in fact repay the said loans. As suggested by Mr Chan during trial, one possible accounting method that may be employed to neutralize the said loans is to set off the same by issuing company dividends. Until SCBS or the Wife through SCBS makes a clear determination as to how to deal with such loans, the Wife’s repayment obligations remain uncertain.

38.  I therefore decline to count the Wife’s director’s loans as part of her liabilities when calculating the value of the family assets.

Add-back of assets to the Wife’s assets

39.  I have considered the jurisprudence on add-backs and the recent case of LCC v LTLA [2024] HKCA 406. In LCC v LTLA, the Court of Appeal succinctly summarized the historical jurisprudence and principles relating to add-backs at paragraphs 27 – 61 of the judgment. In summary, unless there was a wanton dissipation of assets, or some “gross and obvious” misconduct which would be inequitable for the court to disregard, the courts would be slow to “add-back” sums proposed by the parties.

40.  As per the Husband’s closing submissions, the Husband claims the Wife’s unexplained withdrawals from SCBS of approximately $16,706,400 (or $16,782,000 adopting an exchange rate of HKD:USD at 7.8:1) should be added back into the Wife’s list of assets as follows:

1)  US$1,000,000 (dated 23 January 2019)

2)  $840,000 (dated 20 February 2019)

3)  $1,200,000 (dated 22 February 2019)

4)  US$690,000 (dated 22 February 2019 and 12 March 2019)

5)  US$200,000 (dated 22 February 2019)

41.  I shall deal with this argument succinctly.

42.  Firstly, the Wife has already provide an explanation of the whereabouts of these withdrawals.

1)  The US$1,000,000 is disclosed in the Wife’s Form E as a liability. The Wife explained the amount is listed as a liability because it is a loan from SCBS. Unless SCBS writes off the said loan in its accounts, the sum should be considered as the Wife’s liability.

2)  Regarding the sums of $1,200,000 and US$690,000, the Wife had already produced evidence during trial to prove these sums were transferred back into SCBS’s accounts.

3)  The Wife had already explained the sum of $840,000 was used to defray her expenses.

4)  The sum of US$200,000 was used to pay Campbell’s legal fees.

43.  Hence, it is incorrect for the Husband to submit these withdrawals are unexplained.

44.  Secondly, the Husband has not produced any evidence to rebut the explanations given by the Wife on the whereabouts of the said sums. I do not find there to be anything inherently unbelievable about the explanations provided by the Wife. Her explanation is supported by documentary evidence. In so far as she explained some of the money was used to defray her expenses, this is consistent with her usual modus operendi in using funds from SCBS to pay for family expenses. The Husband has not produced any evidence in rebuttal of the Wife’s explanation. In such circumstances, I accept the Wife’s explanation regarding the said sums.

45.  Thirdly, The Husband has not produced any evidence to show the sums were either “wantonly dissipated” or that there was some “gross and obvious” misconduct in the Wife’s part which would compel the court to add back the sums proposed.

46.  By reason of the matters set out above, I do not accept the Husband’s submissions in this regard and decline to add back the sum of $16,706,400 or $16,782,000 to the Wife’s assets.

Other miscellaneous assets and liabilities

47.  The Wife sets out in her Form E that she owns a Patek Philippe worth $60,000. Although the Husband claims to dispute this in the Joint Schedule of Assets and Liabilities, the reason for dispute does not make sense. The Husband merely states, “Dispute, this watch is in the possession of the Wife.” Since no further evidence was given on this, I shall accept the Wife’s proposed valuation of the watch.

48.  As for the Wife’s claim she lent a sum of $227,988 to the Husband’s mother (“the Mother”) for the investment for the Son, I note the parties were not cross-examined on this during trial. I note the Wife’s Narrative Affirmation on the same is scant and her response in her Answer to the Husband’s questionnaire is confusing. In her Narrative Affirmation, the Wife claims she lent the Mother a sum of $55,000. Subsequently she discovered the Mother held the sum of $227,988 in securities and cash for the Son. There is no evidence or explanation on how the sum of $55,000 became a sum of $227,988. I further note the Wife concedes in the Joint Schedule there is little prospect of recovering such loans. In any event, the Wife’s case is merely that the Mother has not returned the said sum to either her or the Son. There is no evidence to say the Mother intends to treat the said sum as her own money. In such circumstances, the said sum (even taking the Wife’s case to its highest) cannot be considered a liability sustained by the Wife. I therefore do not include the said sum in the calculation of the parties’ assets.

49.  As for the Wife’s personal items, the Husband’s objection in the Joint Schedule again is incomprehensible. The Husband stated “Dispute. The jewelleries, handbags and watches were purchased by the family fund and sold without H’s consent.” There was no evidence given by the Husband on what he felt was the proper value of the Wife’s personal items. I therefore accept the Wife’s assertion that there is currently no value attributable to her personal items.

The Husband’s Disputed Assets and Liabilities

50.  The major issues relating to the Husband’s assets and liabilities are as follows:

1)  Whether the loans from the Father and/or the Husband’s mother (“the Mother”) are genuine loans, soft loans, or a gift.

2)  Whether the following matters should be added back to the Husband’s assets:

a)  The unexplained withdrawals from various accounts amounting to $6,772,656.

b)  The value of the Husband’s HKJC Membership.

c)  The Wife’s loan to the Father in the sum of $1 million as requested by the Husband.

d)  The Husband’s shares in Weimob Inc.

e)  The value of the Husband’s Patek Philippe watch at $60,000.

f)  The value of the Husband’s family car.

Loans from the Father (via Chitex) and the Mother

51.  The Husband claims he borrowed the following sums from his Father:

1)  $7,197,000 for the purchase of 30B Bel-Air;

2)  $5,000,000 for the purchase of 17A Bel-Air;

3)  $6,457,000 for miscellaneous matters such as living expenses and litigation fees.

52.  In his latest Form E, the Husband confirms that the updated outstanding amount for the loan used to purchase 30B Bel-Air is $5,887,000. In summary, the Husband claims he owes the Father and the Mother a total sum of $12,344,000.

53.  The Father gave evidence to support the Husband’s claim and testified the loans are genuine loans. The loans were mostly financed through the Father’s company Chitex. The Father claims he lent a total sum of $6,879,125 to the Husband during the period from 2014 to 2022. Up until the date of trial, this sum continues to remain unpaid by the Husband. The Father also confirms he lent the Husband money to purchase 30B Bel-Air and 17A Bel-Air, and the total outstanding amount for the said loans is $10,887,000. In summary, according to the Father’s evidence, the Husband continues to owe a total sum of $17,766,125.

54.  Needless to say, the Wife questions the veracity of these loans and believes such purported loans are actually gifts to the Husband. In the alternative, the Wife argues these are soft loans and should not be counted as part of the Husband’s liabilities when calculating the total value of the matrimonial assets.

55.  I have considered the extensive evidence on this issue and the submissions of counsel. I shall not repeat the parties’ evidence and shall not repeat counsel’s submissions.

56.  I am of the view that taking to the Husband’s case at its highest, these purported loans from the Father via Chitex and the Mother can only be considered as soft loans at best.

57.  According to the Father, he had lent a total of $19,076,125 ($7,197,000 + $5,000,000 + $6,879,125) to the Husband during the period from 2013 to 2022. Up until the date of the trial, the total of $17,766,125 ($10,887,000 + $6,879,125) was still outstanding. In other words, the Husband had only repaid $1,310,000 over 9 years. The Father confirmed the Husband only made half repayments during July 2015 to December 2015, and the Husband stopped making repayments altogether since December 2017. Despite the Husband’s default in repayments, the Father has not taken any legal action against the Husband for the outstanding loans. The Father and/or Chitex have not issued any letter of enforcement to chase the Husband for the outstanding sums. Furthermore, despite the Husband’s failure to make repayments, the Father continued to lend the Husband substantial sums of money. I am of the view all these factors point to the conclusion the Father does not intend to enforce the repayment of these loans, and that the Husband can make repayments as and when he chooses without financial consequences.

58.  The Father explained he did not want to enforce the repayments of the loans because the Husband was going through the divorce. However, according the Amended Petition, the parties separated on 12 May 2019 and the divorce petition was filed on 24 November 2021. Prior to the Husband and Wife’s separation, the Husband had already been in default of his repayments for 4 years. The Father has not offered an explanation as to why there was no action taken during the said 4 years prior to the parties’ separation. I therefore do not accept the Father’s explanation for not taking any enforcement action against the loans. I also do not accept the Father genuinely intends to enforce the loans against the Husband after the present proceedings.

59.  As to whether these loans could be considered as gifts, I have considered the evidence, in particular, the IOUs signed by the Husband. I am of the view that if the Father intended the sums to be gifts, he would not have asked the Husband to sign IOUs. I do not accept the Father intended to “gift” the sums to the Husband. I accept the Father would still expect repayments to be made by the Husband if and when he is able to do so. However, I am of the view the Father does not intend to enforce the loans in the event the Husband defaults. Hence I do not find the loans to be a sham, but I am of the view the Father’s loans are soft loans where the Father does not intend to take enforcement action against the Husband if he defaults in repayments. I therefore do not count the said loans as part of the Husband’s liabilities.

Add-back of assets to the Husband’s assets

Withdrawals of $6,772,656

60.  I have considered the relevant submissions and evidence on the withdrawals amounting to $6,772,656. I do not accept the Wife’s submissions on the same. I note the Husband has accounted for a majority of the sums and has provided the supporting evidence. The Wife has not provided evidence in rebuttal of the Husband’s explanations.

61.  In so far as there are withdrawals from the parties’ joint account of which the Husband says he does not recall, the sums amount to $350,000. The Wife argues since the Husband is unable to recall the said sums and is unable to provide the documentary evidence relating to the same, the court should make an adverse inference the Husband has wantonly and recklessly dissipated such sums.

62.  I note the withdrawals were made during 2016, that is, 3 years before separation. During that time, the Wife had access to the joint bank accounts. Hence, I am of the view she must either have been aware of the withdrawals at the time or, at the very least, had access to the information surrounding the withdrawals if she chose to obtain them. Since the Wife has not produced any evidence to support there has been a wanton dissipation of the said sums, I am of the view there is insufficient evidential basis for the court to make any adverse inferences or to conclude such sums must have been wantonly dissipated.

63.  I therefore decline to add back the said withdrawals to the Husband’s assets.

The transfer from the Wife to the Father in the sum of $1 million.

64.  It is unclear on what basis the Wife seeks to add back the sum of $1 million transferred to the Father. On her own evidence, the Wife claims the Husband asked her to lend the Father $1 million and she did so without asking further questions. The Wife does not make allegations of deceit or some dishonest act by the Husband which lead to the transfer. She does not allege any gross misconduct as a ground of adding back the said sum. She does not specify whether the sum should be added back to the Husband’s assets and she does not argue this transfer to be a ground of departure from equal division. Her counsel merely classifies the $1 million as a sum that should be notionally added back to the matrimonial pot on grounds of fairness, and that it should only be counted as the Wife’s asset if the sum is recoverable.

65.  I have difficulty in accepting both the Wife and the Husband’s explanation for the said transfer.

66.  It is clear the Father had offered extensive financial support to the parties during their marriage. Given the Father’s ability to raise substantial funds through his own companies, I find it unbelievable the Father had to borrow $1 million from the Husband. I also find it difficult to believe the Father, out of his four children, would ask the Husband for a loan of $1 million when the Husband required substantial financial assistance from the Father during the marriage. I therefore reject the Wife’s explanation for the transfer.

67.  As for the Husband’s allegation that the $1 million was a gift to the Father, I find this assertion even more unbelievable. The transfer was made in 2018. By this time, the Father had purportedly lent the Husband a total sum of over $11 million ($7,197,000 for the purchase of 30B Bel-Air, an IOU of $5,000,000 signed in 2017 for the purchase of 17A Bel-Air, and other miscellaneous sums). Moreover, according to the Father’s evidence, the Husband did not make full repayments as promised and stopped repayments altogether in 2019. Clearly, the Husband had no money to gift the Father if the Husband was relying on the Father’s financial assistance. In such circumstances, I find it unbelievable the Husband would choose to “gift” $1 million to the Father as opposed to making any repayments.

68.  Having considered the evidence and submissions of both counsel, I do not accept the parties’ respective assertions on the true nature of this transfer. By reason of the lack of any proper basis to add the sum back to either the Wife or the Husband’s assets, I therefore do not accept the sum should be added back to the parties’ assets.

Hong Kong Jockey Club membership

69.  The Wife does not accept the Husband’s valuation of the membership at $0 and claims the Husband’s Jockey Club membership is worth over $1,000,000. The Wife proposes the AMC Membership and HKJC Membership should not be counted as part of the matrimonial assets. She suggests the said memberships should be set off against each other allowing each party to retain their respective membership.

70.  I do not accept that the said memberships should be discounted from the assessment of matrimonial assets, especially the AMC Membership which can be liquidated and sold at a substantial value.

71.  Even on the assumption the Husband’s HKJC Membership is non-transferrable, I do not agree that it has no value. In absence of any agreement between the parties on the value of the HKJC Membership and in absence of any expert valuation evidence on the same, I shall adopt the purchase price of the membership as being the value of the HKJC Membership. I therefore find the HKJC Membership to be worth $450,000.

Other miscellaneous items

72.  The Wife also seeks to add the value of the following items back into the Husband’s assets:

1)  Patek Philippe Watch (Nautilus) worth $60,000

2)  The Husband’s family car

3)  Weimob Inc. Shares worth $434,880

73.  The Wife believes the Husband is still in possession of a Patek Philippe Watch worth $60,000. However, the same was not put to the Husband during cross-examination and no evidence was produced to support the Wife’s assertion. The Husband has all along denied having possession of the same. In absence of evidence to prove the Husband has the same in his possession, I am unable to find or infer the Husband is in possession of the watch.

74.  As for the Husband’s family car, the Wife claims the value of the car should be accounted for in calculating the Husband’s assets. The Husband in his closing submissions conceded and updated his assets by adding the value of his current family car at $300,000.

75.  As for the shares in Weimob Inc., the Husband never gave any evidence to say he no longer has such shares. Although Mr Leung for the Husband submits that the Husband no longer has the shares, there is no evidence from the Husband to support the said submission. In such circumstances, I will take the sum of $434,880 as stated in the Husband’s Form E as being accurate. I therefore include the value of the Weimob Inc. shares in the assessment of the matrimonial assets.

Value of 17A-Bel-Air

76.  The parties agree the value of 17A Bel-Air to be $37,100,000. Parties also agree the outstanding mortgage to be $13,992,745. The main dispute between the parties is whether the purported loans from the Father should be deducted from the value of 17A Bel-Air.

77.  By reason of the matters set out above, I am of the view the purported loans from the Father are at best soft loans. I am therefore of the view that any sums from the Father used to finance the purchase of 17A Bel-Air and Car Park 98 should not be deducted when calculating the value of 17A Bel-Air and Car Park 98.

78.  I therefore find the value of 17A Bel-Air and Car Park 98 to be $23,107,255 ($37,100,000 - $13,992,745).

Parties’ assets and liabilities

79.  By reason of the matters above, I set out my findings of the parties’ assets and liabilities:

80.  The Wife:

17A Bel-Air and Car Park 98 (1/2 share)	$11,553,627.50
Undisputed assets	$3,084,666
SCBS	$12,452,176
AMC Membership	$1,000,000
Patek Philippe Watch	$60,000
Less Liabilities	($1,821,720)
TOTAL	$26,328,749.5

81.  The Husband:

17A Bel-Air and Car Park 98 (1/2 share)	$11,553,627.50
Undisputed assets	$466,407
HKJC Membership and family car	$750,000
Weimob Inc shares	$434,880
Less liabilities	($332,448)
TOTAL	$12,872,466.50

82.  The total matrimonial assets of the parties is $26,328,749.5 + $12,872,466.50= $39,201,216.

D. THE PARTIES’ RESPECTIVE EARNING CAPACITY, CLEAN BREAK, AND PROPORTION OF DIVISION

83.  Parties agree there should be a clean break. They also agree this is a “sharing case” and not a “needs case”. However, the parties are in dispute over the proportion of division. The Wife proposes an equal sharing of the matrimonial assets but the Husband argues there are grounds for departure from equal division.

Whether there should be departure from equal sharing of matrimonial assets

84.  The Husband raises the following as being factors for departing from equal sharing:

1)  The Wife has a much superior earning capacity than that of the Husband.

2)  The purchase of 17A Bel-Air and Car Park 98 was largely financed by loans from the Father, with the Wife making little or minimal financial contribution to the same. Due to the short marriage and because the purchase was financed by the Father, it would be unfair for the Wife to have an equal share in the same.

3)  The Wife unreasonably refused to sell the Harrow Debenture thereby failing to liquidate a valuable family asset. The failure to sell contributed to the Husband’s impecuniosity, which lead the Husband to take out loans from the Father.

4)  The Wife’s delayed response to the sale of the UK property resulted in a forfeiture of a deposit of $1,000,000.

Harrow Debenture

85.  I have considered the evidence of the parties and the correspondence evidence filed by the parties on this issue.

86.  In summary, the Husband claims that despite having found potential purchasers for the Harrow Debenture for a relatively lucrative price (net prices of $2,800,000 and $2,901,250), the Wife refused all such offers without good reason.

87.  The Wife explained the so-called offers purportedly procured by the Husband were not genuine offers to purchase but were only a commitment to sale, without having a genuine buyer on hand. The Wife further explained if she agreed to the sale and if the sale went through, the Harrow Debenture would be sold at a loss of more than $1,650,000. Since she has not ruled out the possibility of the children changing schools and she is not prepared to suffer a significant loss on the Harrow Debenture, she refused to sell the debenture.

88.  I agree the Wife’s concerns about a genuine buyer may not be justified or a good reason to decline to sell via the agents found by the Husband. However, it seems the Wife’s real concern is about sustaining a loss of over $1,650,000 on the Harrow Debenture. I accept this to be a genuine and valid concern. A loss of over $1,650,000 is a significant sum, which would have a significant impact on the family assets. I find no fault in the Wife for being cautious and having reservations about liquidating a family asset at a price that would result in a significant capital loss.

89.  I therefore do not find the Wife’s refusal to sell the Harrow Debenture to be so irrational or unreasonable that would warrant a departure from equal division of assets.

UK property

90.  I have perused the email exchanges between the parties and the UK property agent. Although I accept the Wife was initially slow in her response to the offer from potential buyers, I note she accepted the offer within 20 days from the date she was notified by the Husband of the potential buyer’s offer. Given the transaction was to happen overseas and the Wife’s lack of knowledge of the conveyancing process in the UK, I am of the view she cannot be faulted for asking the questions she did or for requesting for clarification of the process.

91.  I note it took the Wife about 2 weeks before she gave her identity card and address proof for the purposes of completing the sale. However as I explained previously, she cannot be faulted for asking questions in a situation where she is unfamiliar with the procedure or rules of conveyancing in UK. Although she may be criticized as being pedantic, her behaviour falls short of being irrational or unreasonable so as to warrant to court to order a departure from equal sharing.

92.  I do not speculate whether the sale would have gone through if the Wife had accepted the offer sooner or if she had been less inquisitorial. Given the agent’s explanation the buyers refused to follow through with the sale due to economic uncertainty, I shall accept this to be the reason why the sale of the UK Property was unsuccessful. In such circumstances, the Wife alone cannot be blamed for the loss of the deposit paid on the house. I therefore decline to order any departure from equal sharing based on the same.

Parties’ respective earning capacity

93.  I outright reject the Husband’s submission that his earning capacity is far inferior to that of the Wife’s. Both parties are in their early 40s at the time of this judgment. Both graduated with a law degree from a prestigious university. Both became qualified solicitors and secured employment in reputable law firms in Hong Kong. Both started their careers with similar salaries and worked in corporate law. There is no disparity in education or professional qualifications between the parties.

94.  I am of the view that the Husband’s purported inferior earning capacity or the perception that he has an inferior earning capacity is a result of his own personal choices. I have no doubt that if the Husband was serious about finding a better offer of employment, with his qualifications and his social network, his earning capacity would be no less inferior to that of the Wife. I find their earning capacity is similar, if not the same.

95.  By reason of the matters set out above, I see no reason why this court should depart from the principle of equal sharing.

Division of assets

96.  If the matrimonial assets were to be shared equally based on the various valuations before me, the Husband’s share would be $19,600,608 (39,201,216 / 2 = 19,600,608) and the Wife would have to pay the Husband a sum of $6,728,141.50 ($19,600,608 – $12,872,466.50= $6,728,141.50) to equalize the assets between the parties. I shall round down the figure to the nearest thousand as $6,728,000.

97.  I am of the view that 17A Bel-Air should be liquidated and the net proceeds be used to meet any payments that need to be made by the Wife.

E. SUMMARY AND ORDERS

98.  By reason of the matters set out in this judgment, I make the following orders:

1)  17A Bel-Air and Car Park 98 be sold in open market for the price of not less than $37,100,000 or at a price to be mutually agreed by the parties, within 6 months of the Decree Absolute.

2)  Parties shall mutually agree on the conduct of sale including appointment of estate agents and lawyers.

3)  There be liberty to apply for further directions on the sale of 17A Bel-Air and Car Park 98 if necessary.

4)  The proceeds of sale of 17A Bel-Air and Car Park 98 after deduction of the mortgage payments, estate agent commissions, legal costs, and all other necessary incidental expenses of the sale (“the Net Sale Proceeds”), shall be equally divided between the parties.

5)  The Petitioner shall, within 30 days of receipt of her share of the Net Sale Proceeds, pay the Respondent a lump sum of $6,728,000.

6)  Save and except 17A Bel-Air and Car Park 98, parties shall retain the assets (including but not limited to cash at bank accounts, landed properties, etc.) under his / her own name.

7)  Save and except the above, all remaining ancillary relief claims the parties may have against each other be dismissed upon the making of this order.

8)  Section 18 MPPO declaration be granted.

F. COSTS

99.  I have considered the open proposals by the parties.

100.  I find neither of the parties to be successful in the present proceedings. For reasons set out in this judgment, I have rejected substantial submissions made by both parties on their purported liabilities. Moreover, I have not accept either parties’ calculation of the matrimonial assets. I am therefore of the view that each party should bear their own costs.

101.  I therefore make a costs order nisi as follows: There be no order as to costs of the Ancillary Relief Proceedings (including all costs reserved). Unless any party applies to vary the costs order within 14 days hereof, the costs order shall become an order absolute.