WONG KWOK HIN v. WONG LAI FAN AND ANOTHER

HCA5199/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.5199 OF 1999

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J U D G M E N T

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The claim

1. The plaintiff ("Mr Wong") is the elder brother of the 2nd defendant ("Mr Choi") although their surnames are different. The 1st defendant ("Ms Wong") is the former wife of Mr Choi. Ms Wong and Mr Choi were married on 29 August 1985. Ms Wong petitioned for divorce in April 1997. The court granted divorce on 21 November 1997. The matrimonial home of Ms Wong and Mr Choi was situated at Flat No.4, 35th Floor including the roof thereof, Block O, Amoy Garden, Phase III, 77 Ngau Tau Kok Road, Kowloon, Hong Kong ("the property"). Mr Choi was the registered owner of the property. On 6 February 1998, H.H. Judge De Souza of the Family Court ordered ("the Order") Mr Choi to transfer his interest in the property to Ms Wong absolutely. The assignment in favour of Ms Wong was executed by the Registrar of the High Court on 24 July 1998. The plaintiff is now seeking the following relief :

(1) A declaration that he was and still is the sole beneficial owner of the property.

(2) A declaration that Mr Choi and Ms Wong had been holding the property as trustees for his use.

(3) A declaration that the Order had been obtained by Ms Wong without making full and frank disclosure of all the material facts to the court or alternatively the Order had been obtained by Ms Wong on the erroneous basis that Mr Choi was the sole beneficial owner of the property and that the Order ought to be set aside.

(4) An order vesting the property in him.

The plaintiff's case

2. The plaintiff's case is a simple one. He bought the property in April 1984 with his own money. The purchase price was $256,960. The agreement for sale and purchase ("the agreement") of the property was signed by Mr Choi on 9 July 1984. The assignment of the property was executed on 20 May 1985.

3. According to the first schedule of the agreement, a deposit and part payment of the purchase price of $25,696 was to be paid upon the signing of the agreement and $231,264 as balance of the purchase price was to be paid on or before 10 April 1984. The plaintiff produced evidence in support of his claim that he paid for the purchase price of the property by means of a cheque dated 10 April 1984 drawn in favour of Messrs Woo, Kwan, Lee & Lo, the solicitor for the vendor, in the sum of $231,264.

4. Mr Wong explained why the property was registered in the name of his younger brother, Mr Choi. In 1983, Mr Wong had applied for emigration to the USA. He knew at that time that he would have to land in the USA in or around early 1990 if the application was approved. In 1983, he was living in his own property. His father, who had been living in the Philippines, returned to Hong Kong in 1984 and lived with him. His mother also lived with him. He said that the property was purchased for his parents. As he would leave Hong Kong sooner or later, he started to think of his mother's future. His mother had complained to him that the location of the flat in which they were living in Shatin was too far away from the home of his elder sister who was residing in To Kwa Wan. He expected that after his departure, his mother would have more frequent contacts with his elder sister and she would be looked after by his elder sister. He was concerned with Mr Choi who did not have a steady job or saving. He believed Mr Choi would be unable to acquire his own flat in the near future. He was also thinking that if his mother and Mr Choi were to reside together, Mr Choi could assist in taking care of her. He chose the property as it was close to his elder sister's home. As he considered that it would be inconvenient and hard for him to manage his property from abroad, he requested Mr Choi to act as the registered owner of the property and Mr Choi agreed.

5. Mr Choi moved into the property in June 1985. Soon after that, he married Ms Wong. Mr Wong's mother spent about two weeks each month at the property while his father spent several days a month at the property. At that stage, his parents were still living with him. Later on, the parents moved to reside at the property. Mr Wong eventually left Hong Kong and emigrated to the USA in August 1990. After leaving Hong Kong, Mr Wong had only returned on two occasions in February 1996 and March 1998 respectively.

6. In 1997, he learnt from his elder sister that Ms Wong and Mr Choi were having an unhappy marriage and Mr Choi left the property and disappeared since early 1997. In March 1998, he was informed by his elder sister that Ms Wong had claimed herself to be the owner of the property and had attempted to evict his mother. Mr Wong made further enquiries and subsequently learnt of the assignment of the property to Ms Wong pursuant to the Order. He commenced the present action on 29 March 1999.

Ms Wong's case

7. According to Ms Wong, the marriage was arranged by her parents. She had a short courtship with Mr Choi although they were first introduced earlier. They were married not long after they started their courtship. Ms Wong said that she started the courtship with Mr Choi at the end of 1984. Soon after the courtship, Mr Choi introduced her to his father ("the father"). In mid-May 1985, Ms Wong had tea with the father and Mr Choi in a restaurant. During the meeting, the father told them that he had agreed to purchase the property in the name of Mr Choi and pay 10% of the purchase price. He said the property was to be the matrimonial home if Ms Wong was to marry Mr Choi. He also said that the transaction was to be completed very soon. After tea, the father took them to see the property.

8. Mr Choi proposed to marry her in May 1985 when he assured her that they were going to reside in Amoy Garden as his father had already purchased a unit there and there would be no need to pay the mortgage instalments as his father would pay the purchase price by one lump sum. At that time, the income of Ms Wong and Mr Choi were insufficient to meet all the expenses. She and Mr Choi moved into the property after the marriage. From time to time, the father would spend a few nights to over one month in the property on an irregular basis. He did this for roughly one year from October 1985.

9. On one occasion in October 1985, the father told her and Mr Choi that he had savings from working in the Philippines and he had entrusted his eldest son with safe keeping of his savings because he was illiterate. He said he had property provided for all his three sons and that the property was his gift to his youngest son, i.e. Mr Choi. The father died in May 1988. Ms Wong gave birth to her daughter on 18 September 1988 and Mr Choi's mother came to reside in the property on a permanent basis to take care of the daughter as both Ms Wong and Mr Choi had to work. Ms Wong's second child was born on 11 December 1991 and Mr Choi's mother also assisted in looking after the second child. Mr Choi left Ms Wong and the children in 1997.

Mr Choi

10. Mr Choi appeared in person in this action. Although he had filed a witness statement, he chose not to give any evidence at the hearing. He further chose not to question the witnesses or make submissions.

Findings

11. I find Mr Wong to be a truthful witness and I accept his evidence regarding the purchase of the property. He was obviously a successful businessman and he was able to acquire the property with his own money. I accept his evidence on why he purchased the property in the name of Mr Choi. It was for the purpose of providing a home for his parents. In view of his pending emigration to the USA, it was more convenient for Mr Choi to be registered as the owner of the property. Mr Choi was his younger brother and at that time was working for him. Obviously, Mr Wong trusted his younger brother in holding the property on his behalf. I do not find this to be extraordinary in the setting of a Chinese family like Mr Wong's.

12. I further accept Mr Wong's evidence that the father was not a wealthy man. He was not able to make much money when he was working in the Philippines. I do not accept that the father had entrusted his savings with Mr Wong. Mr Wong had also called another of his brother to give evidence, namely Mr Leonardo Lim ("Mr Lim"), who had been living in the Philippines since 1984. Mr Lim confirmed that his father did not have a good income when he was working in the Philippines. He denied that the father had purchased a matrimonial home for him in the Philippines. The Philippines property was purchased by him and his wife jointly, together with a mortgage loan.

13. In my view, the tell-tale evidence on the true ownership of the property is to be found in the contemporary documents. The contemporary documents show that by April 1984, Mr Wong had paid for the whole of the purchase price of the property and by July 1984, the agreement for the purchase of the property was signed. When Mr Wong bought the property, Ms Wong had not started the courtship with Mr Choi which only began at the end of 1984. Even if the conversations with the father and Mr Choi had taken place as stated by Ms Wong, what the father and Mr Choi said would not stand in the light of the contemporary documents and in the light of the testimony of Mr Wong and his younger brother, Mr Lim. The inference is that Mr Wong had indeed bought the property for his parents.

14. Further, as stated in Snell's Equity, 30th Edn. at paragraph 9-16 :

"The acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the declaration; subsequent acts and declarations are only admissible as evidence against the party who made them, and not in his favour.⁵⁵

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⁵⁵ Shephard v. Cartwright [1955] A.C. 431, where this passage was cited by Viscount Simonds with approval at 445."

In this case, the agreement to buy the property was signed on 9 July 1984. The declaration by the father was allegedly made in May 1985. In my view, such declaration, apart from being hearsay, is inadmissible.

Ms Wong's affirmation

15. In support of the application for the transfer of the property to her, Ms Wong had filed an affirmation in the divorce proceedings in which she stated that the purchase price of $256,900 was provided by the following means : her parents gave Mr Choi $150,000; Ms Wong provided $50,000 to $60,000 from her savings and the father gave $15,000 to Mr Choi. Mr Hung, counsel for Mr Wong, had asked for Ms Wong's affirmation to be admitted as evidence in this case. I had made a ruling on this matter and the decision is appended to this judgment. As stated in the decision, Mr Hung, was not asking me to assess the credibility of Ms Wong by reference to her earlier affirmation. It is not necessary for me to do so. The evidence in the present case clearly support Mr Wong's claim for ownership of the property. I do not find this to be a case where Mr Wong had colluded with his younger brother to deprive Ms Wong of the benefit of the property.

16. Ms Wong also relied on the fact that she kept the title deeds of the property after the assignment and in 1990 Mr Choi had raised a loan on the mortgage of the property. Mr Wong agreed that Mr Choi was in breach of trust by mortgaging the property for his own use but he said that being brothers in the same family, he would take a more lenient view of the matter. In my view, the fact that Mr Wong did not keep the title deeds after the assignment is not an indication that Mr Wong is not the beneficial owner of the property. As the purpose of registering the property in the name of Mr Choi was to enable Mr Choi to manage the property more conveniently, the fact that Mr Wong did not keep the title deeds is not something that can be used to his detriment. Of course, there are other ways of enabling a property to be managed for an absent owner, such as by way of a power of attorney or alternatively, a declaration of trust by Mr Choi. Neither of these steps had been taken in this case. However, I do not find this to be against Mr Wong. In view of his pending emigration, he had chosen a method which he considered to be the most appropriate in the circumstances. This turned out to be a troublesome process. But ultimately, he is able to satisfy that court that he is in fact the true beneficial owner of the property.

Delay in bringing the action

17. It was submitted by Mr Allan, counsel for Ms Wong, that Mr Wong had delayed in bringing the proceedings. Ms Wong presented her divorce petition in April 1997 and Mr Wong only chose to bring the present action in March 1999. It was submitted that Mr Wong's mother, who was living in the property, ought to have known that Ms Wong was applying for divorce. In my view, Mr Wong and his family may well be aware that Ms Wong was divorcing her husband, however, the delay in bringing the present action is only slightly over one year after the Order was obtained in February 1998. The delay is not so substantial as it would preclude Mr Wong from obtaining the relief.

Other disputes

18. There is allegation that Ms Wong had cut off the gas supply in the property so as to preclude Mr Wong's mother from cooking. She also threatened to evict her. This is denied by Ms Wong. She said that she had agreed with Mr Wong's mother that they would move out from the property and let it to a tenant in order to supplement her income. The mother had initially agreed but, when it came to the time of moving, refused to do so. In my view, allegations on the conducts of the parties are not germane to the issue I am deciding and I would not make any finding on them.

19. In my view, notwithstanding the Order, as I am satisfied that the true beneficial ownership of the property belongs to Mr Wong, he is entitled to a declaration that he is the true beneficial owner of the property and that Mr Choi and Ms Wong had been holding the property as trustees for his use.

Conveyancing and Property Ordinance

20. Mr Allan referred to section 3 of the Conveyancing and Property Ordinance which provides that no action shall be brought upon any contract for the sale or other disposition of land unless the agreement upon which the action is brought is in writing. This provision is expressly stated to be subject to section 6(2) which provides that the creation or operation of resulting, implied or constructive trusts is not affected by this provision. As Mr Wong is the true beneficial owner of the property, Mr Choi, and subsequently Ms Wong, is holding the property on resulting trust for Mr Wong. The statutory requirement is not applicable.

Setting aside the order

21. Mr Hung explained why this action was instituted by the plaintiff. He referred to de Lasala v. de Lasala [1980] AC 546 where Lord Diplock at page 561 stated that :

"Where a party to an action seeks to challenge, on the ground that it was obtained by fraud or mistake, a judgment or order that finally disposes of the issues raised between the parties, the only ways of doing it that are open to him are by appeal from the judgment or order to a higher court or by bringing a fresh action to set it aside."

This approach was followed in Lui Sik Kuen alias Lui Lup Fun v. Lee Suk Ling [1992] 2 HKLR 371 where the court further stated that the expression "fresh action" cannot embrace an application in proceedings already instituted.

22. These cases are concerned with one of the parties to the original proceedings wishing to challenge the original decision. In this case, Mr Wong is not a party to the original divorce proceeding. Mr Hung submitted that if Mr Wong was to take the appeal route, he had to intervene as a party in the divorce proceeding but it is unlikely that he would be given leave to appeal out of time by the Family Court because as he was not a party to the original proceedings, there was simply no evidence before the court on his claim on the ownership of the property. The Court of Appeal cannot decide on his case without admitting fresh evidence. Hence, the only route available to Mr Wong is to bring the present action.

23. Mr Hung further referred to section 7 of the Matrimonial Proceedings and Property Ordinance, Cap.192 in which it is expressly provided that it shall be the duty of the court to have regard to, among other things, all the circumstances of the case, including the specific matters referred to in section 7, in deciding whether to exercise its power to make property adjustment orders. As the court had made the enquiry, it is necessary to set aside the Order on the ground of material non-disclosure by way of a fresh action. A judgment which has been obtained by fraud may be impeached by means of an action : Halsbury's Laws of England, Vol.26, para.560 and Stern v. Friedman [1953] 1 WLR 969. Fraud is an extrinsic, collateral act which vitiates the most solemn proceedings of courts of justice. A judgment obtained by fraud or collusion may normally be treated as a nullity ... (these propositions) may be accepted without qualification in favour of persons who were not party to the judgment, whether it was in rem or in personam : Halsbury, Vol.16, para.1000. In Bandon v. Becher (1835) 3 CL & FIN 479, the House of Lords affirmed the decision to allow a person who was not a party to a proceeding to challenge the order which was obtained by fraud. Although Mr Wong did not rely on fraud but rather the lack of full and frank disclosure of material facts, there is judicial expression that material non-disclosure is akin to misrepresentation or fraud or breach of duty or frankness owed to the court for the purpose of setting aside an earlier order : see B-T v. B-T [1992] FLR 1.

24. Mr Allan relied on para.180.439 at Vol.12 of Halsbury, Laws of Hong Kong, in which it is stated that :

"Third party's right in matrimonial property dispute A common situation often occurs where a third party needs to protect his or her beneficial interest against the claim of a spouse for a sale or transfer or settlement of property order under the provisions of the Matrimonial Proceedings and Property Ordinance upon a decree nisi being granted. A typical example is where landed property is purchased with money advanced, wholly or partly, by a parent of the husband who then becomes the sole registered owner of the property, which is then used by the husband as the matrimonial home for himself and his wife.

There are two ways of resolving the dispute. First, an application under the Matrimonial Proceedings and Property Ordinance may be adjourned pending the trial of the claim in other proceedings. Secondly, the third party may be allowed to intervene in the ancillary relief proceedings between the husband and wife. It has been decided that the court has jurisdiction to determine not only the rights and interests of the spouses in the property, but also the rights and interests of the third party."

25. In Tebbut v. Haynes & another [1981] 2 All ER 238, the wife obtained a divorce and applied for a transfer of property order against the husband in respect of a property registered in the name of the husband. The registrar gave leave to the husband's mother and aunt to intervene in the wife's application. The husband's mother claimed that she had beneficial interest in the property. After hearing, the registrar ordered that the husband's legal and beneficial interest in the house be transferred to the wife. The husband's mother appealed. A High Court judge found that the wife had no claim through the husband to the house except to the extent that he had contributed to its purchase. A few days before the judgment, the husband's mother issued a writ against the husband and wife claiming an interest in the house. The wife counterclaimed for a declaration that she was entitled to a 90% beneficial interest in the house or to such interest as the court thought fit. On the determination of a preliminary issue, the court held that the wife was not estopped from asserting that she was entitled to an equitable interest in the house. The Court of Appeal reversed the decision and held that :

(1) On an application by a spouse for a transfer of property order, the court had jurisdiction to determine not only the rights and interest of the husband and the wife in the property, but also the rights and interest of third parties who had intervened in the application to claim an interest in the house, for it was fundamental to the jurisdiction under section 24 of the Matrimonial Causes Act 1973 the judge should know over what property he was entitled to exercise his discretion and if there was a dispute between a respondent's spouse and a third party as to the ownership of the property, that dispute had to be resolved before the judge could make an effective order under section 24.

(2) Since the issue of the rights and interest of the husband and wife and the mother in the house had been fully and fairly enquired into and dealt with by another judge, it followed that the finding was conclusive as between the wife and the mother and that the wife was estopped from reopening the same issue unless there were circumstances which make it fair and just that the issue should be reopened.

26. Section 24 is the equivalent of section 6 of the Matrimonial Proceedings and Property Ordinance which enables the court to make property transfer orders. It is clear from cases such as, for example, Yat Tung Investment Co. Ltd v. Dao Heng Bank Ltd [1975] AC 581 that the doctrine of estoppel by res judicata applies, among other things, only to the parties to a litigation. In this case, Mr Wong is not a party to the divorce proceedings. Hence, the doctrine of res judicata will not apply to him. It is clear from the affirmation of Ms Wong filed in the Family Court that she had not disclosed the full facts to the judge when she obtained the Order. Mr Choi was absent in those proceedings. Ms Wong had maintained in the present action that her oral evidence is true. If her knowledge of the ownership of the property is as disclosed in her evidence in this action, then clearly she had not made a full and frank disclosure to the Family Court. This being the case, the court should grant a declaration that the property transfer order was obtained on the basis of material non-disclosure.

27. However, I would not grant a declaration that the Order should be set aside even though there may be jurisdiction to do so. This is because the Order affects not merely the rights of the parties of this action but also the two children of Ms Wong. The Order declared in the final paragraph that :

"..... the Court is satisfied that CHY and CYF are the only children of the family to whom Section 18 of Matrimonial Proceedings and Property Ordinance, Cap.192 applies and the arrangements for their welfare have been made and are satisfactory or are the best that can be devised in the circumstances." (I have used abbreviations for the names of the children).

When the Order was made, Mr Choi had left his family and obviously any order requiring him to pay maintenance for the children would not be effectively enforced. The property that was ordered to be transferred to Ms Wong was the only asset that could be relied upon by Ms Wong and the children. If it is now declared that the Order ought to be set aside, it would mean that Ms Wong and the children's interest would be affected, without, at the meantime, any valid court order providing for their interest. A declaration is a discretionary remedy. The welfare of the children is clearly a relevant matter to bear in mind in the exercise of the discretion.

28. Faced with my decision, Ms Wong would have to apply to set aside the Order by herself or with the consent of Mr Choi and at the same time, apply for fresh financial provisions for herself and the children. In my view, Mr Choi, as the former husband of Ms Wong and the father of his two children, ought to assume his responsibility to them, at least financially.

29. In order to make the declaration on the ownership of the property effective, Mr Wong is entitled to a vesting order of the property. However, I will suspend the vesting order for a period of four months or further time as may be required, in order to enable Ms Wong to make the necessary application for financial relief in the Family Court.

30. The Order and the Notice of Intention to Proceed registered against the property should be vacated. There is a Legal Aid Charge in respect of Ms Wong's costs in the divorce proceedings being registered against the property as well. As the Legal Aid Department is not a party to this action, it is inappropriate for me to make any order about this charge.

Improvements to the property

31. Ms Wong stated that she had incurred expenses in improving the property. In 1990, she spent $60,000; in 1995, she spent $52,000 and in 1999, she spent $12,000. The improvement in 1990 was repainting the interior, making a partition, reflooring from wood to tiles, and on the drainage on the roof; the 1995 improvement was replacing the fresh water drainage and repainting the walls and in 1999, the expenses was for repainting the walls. The partition was made because Mr Wong's mother required a family's shrine to be built in the living room. I am satisfied that Ms Wong had spent these monies. It is said that Mr Wong had no knowledge of this improvement. In my view, it can hardly lie in the mouth of Mr Wong to say that he had no knowledge of this improvement. His mother had been living in the property since 1985. Until 1997, his younger brother, Mr Choi was also living there. He had asked Mr Choi to look after the property for him. Obviously, there would have to be improvements on the property from time to time and he would agree to such improvements. Ms Wong is entitled to recover the $124,000 she had spent on improvements in the property. The improvements were expressly pleaded in the Defence and Counterclaim although it was not included in the prayer of the Counterclaim. Mr Wong was obviously aware of Ms Wong's claim for improvement. This was dealt with in the cross-examination of Ms Wong. Ms Wong is, accordingly, entitled to her claim.

Conclusion

32. Accordingly, I shall give judgment for Mr Wong against Ms Wong and Mr Choi for the following :

(1) A declaration that Mr Wong was and still is the sole beneficial owner of the property.

(2) A declaration that Mr Choi and Ms Wong had been holding the property as trustees for the use of Mr Wong.

(3) A declaration that the Order was obtained by Ms Wong without making full and frank disclosure of all the material facts to the court.

(4) An order that the property be vested in Mr Wong. This order is stayed for four months or for such longer period of time as may be required by Ms Wong to set aside the Order and obtain financial relief for her and her two children.

(5) An order that the Order and the Notice of Intention to proceed registered in the Land Registry against the property be vacated from registration upon the property being vested in Mr Wong.

33. I shall further give judgment to Ms Wong against Mr Wong for the sum of $124,000. There shall be interest on this sum at judgment rate from date of the judgment until payment.

Costs

34. The property was registered in the name of Mr Choi. There is no evidence that Mr Wong had personally informed Ms Wong that Mr Choi was merely holding the property on his behalf. Although Ms Wong had not made full disclosure in the Family Court, in my view, she was reasonable in defending the present action. In the circumstances, I will make a costs order nisi that each party will bear its own costs of this action.

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D E C I S I O N

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Date of Decision : 13 June 2001

1. The plaintiff is in possession of two documents, namely, a divorce petition and an affirmation of means of the 1st defendant. The 1st defendant was the petitioner in a divorce proceedings of which the 2nd defendant was the respondent. Mr Hung, counsel for the plaintiff, intends to rely on the affirmation in the cross-examination of 1st defendant. Mr Allan, counsel for 1st defendant, objects to its use.

2. Rule 121 of the Matrimonial Causes Rules provides that a party to any matrimonial proceeding may, among other things, bespeak a copy of any document filed in the registry of those proceedings. As to non-parties, Rule 121(2) provides that : "Except as provided by Rules 47A(3) and 95(3) and paragraph 1 of this rule, no document filed or lodged in the registry other than a decree or order made in open court, shall be opened to inspection by any person without leave of the court, and no copy of any such document, or of an extract from any such document, shall be taken by or issued to, any person without such leave."

3. The provisions of Rules 47A(3) and 95(3) are not relevant to this case. By virtue of Rule 121(2), the affirmation is clearly confidential in nature and intended to be so.

4. The 2nd defendant had taken no part in the divorce proceedings. On 31 May 2001, C.D. Kam & Co., solicitors, wrote to the Registrar of the Divorce Registry of the Family Court, stating that they acted for 2nd defendant and asked the Registrar to allow their clerk to make copies of the petition and affirmation of means of the 1st defendant. Approval was given by the court to make copies. The 2nd defendant said that he had indeed instructed the solicitors to obtain the documents. He received photocopies of those documents from his solicitors. He, however, did not provide copies to the plaintiff, who is his elder brother, and he did not authorise his solicitors to provide the copies.

5. Mr Hung said that his solicitors obtained the documents from the 2nd defendant's solicitors and he produced the letter of 31 May 2001. Belatedly, Mr Hung accepts that the documents were irregularly obtained but asks for leave to regularise the possession.

6. Phipson on Evidence 15th Edn, at para.22-07 stated that : "... once affidavit has been served and filed, it would have been hard to imagine that it was possible to assert a claim for privilege even against the third party in subsequent proceedings." And also, "No implied undertaking arose in the case of an affidavit once served not to use it for collateral purpose, save in those situations where the affidavit will require for a compulsion, where it was established that undertaking not to use the affidavit for collateral purpose would be implied."

7. In my view, affirmations filed in matrimonial proceedings must be subject to special treatment because of the terms of Rule 121(2). It would be absurd if a non-party which had not obtained leave in the first place to inspect or copy the documents would nonetheless be able to use the documents in subsequent proceedings as if Rule 121 does not exist.

8. There were cases in which documents relevant to family proceedings were supplied to a third party by either the immediate parties or their privies in the matrimonial proceedings, examples are, Medway v. Doublelock Ltd [1978] 1 All ER 1261, where the wife in a matrimonial proceeding supplied her husband's affidavit of means to parties who were engaged in litigation with the husband; S. v. S. [1997] 3 FCR 1 and R. v. R. [1998] 1 FLR 922 are cases where the Inland Revenue received documents of family proceedings in which there was evidence that the husbands had underdeclared their income. The court in these cases had to consider the nature of the case before deciding whether the third party could make use of the documents.

9. In the present case, C.D. Kan & Co. had ceased to act for the 2nd defendant on 16 August 2000 and the 2nd defendant has been acting in person. Apart from filing a witness statement, he had not filed any acknowledgement of service or any list of documents, although the plaintiff had not applied for judgment in default against him. Why the 2nd defendant should instruct solicitors on 31 May 2001 to obtain copies of documents in the divorce proceedings is baffling. It is equally baffling that the 2nd defendant's solicitors should release the documents without the authority of the 2nd defendant.

10. While the circumstances in which the plaintiff came to have these documents are in my view not fully explained, this is not the true basis in which the plaintiff's application should be considered. The true test is, if the plaintiff had applied for leave in the first place to obtain the affirmation, would leave be granted?

11. Leaving aside the question whether the plaintiff would succeed in his action, one of the grounds relied by the plaintiff in this action is that the 1st defendant had not made full and frank disclosure on the true ownership of the property when she obtained the property transfer order in the Family Court. Mr Hung said that he is not using the affirmation to cross-examine the 1st defendant on her credibility because of her previous inconsistent statement in the affirmation on how the property came to be acquired : see section 14 Evidence Ordinance. He is also not relying on the affirmation as proof of the facts stated in it : see Halsbury's Laws of England, Vol.17, para.196. He is also not suggesting that the content is untrue or that her oral testimony is untrue. He said that he is relying on the affirmation to show that the 2nd defendant relied on the affirmation when she obtained the property transfer order. In other words, this goes to support the plaintiff's case that she had not disclosed the full facts when she obtained the Order.

12. On this basis, in my view, the affirmation is relevant and leave would have been granted to the plaintiff to use the document. Accordingly, I will allow the affirmation to be used on the basis as indicated by Mr Hung.