李 v. 黃 AND ANOTHER

FCMC 4682/2021

[2023] HKFC 39

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4682 OF 2021

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D E C I S I O N

(STRIKING OUT)

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Applications

1.  There are two striking out summonses before me, one from the Petitioner (“the Wife”) and the other one from the 2^nd Respondent (“the Mother”), who is the mother of the 1^st Respondent. They are:

(1)  The Wife’s summons dated 23 November 2022 in which she asked for paragraphs 20-23 of the Mother’s Points of Claim filed on 12 October 2022 be struck out; and

(2)  The Mother’s summons dated 3 January 2023 in which she asked for the second sentence of paragraph 8(1) and the second sentence of paragraph 11 (9) of the Wife’s Points of Defence be struck out.

2.  The 1^st Respondent (“the Husband”) does not take part in these striking out applications.

3.  Although most of the pleadings were drafted in Chinese, I have decided to hand down this decision in English because both counsel’s written submissions were prepared in English.

Background

4.  The Wife and the Husband were married in 2003. Within wedlock, they have a son who is now 18 years of age.

5.  In 2021, the Wife issued a petition for divorce based on behaviour on which a decree nisi was granted on 18 August 2022.

6.  One of the main issues concerning ancillary relief was the beneficial ownership of a property located at Yue Shing Building, nos. 28, 28A & 30 Boundary Street, Kowloon (“the FMH”). It was not disputed that the FMH was purchased in the year of 2010 in the name of the Husband. But according to the Mother, all the purchase moneys were paid by her and there was a common intention constructive trust/resulting trust in her favour. Therefore, the Husband was merely holding the FMH as a trustee for her. By the end of 2020, the Mother requested the Husband to transfer the FMH back to her. After such transfer, the Wife took out an application for an avoidance of disposition order under section 17 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”). It was quite clear that whether the FMH should form part of the matrimonial pot would have a huge impact on the Wife’s application for ancillary relief and so the beneficial ownership of the FMH has become the central issue of her application.

7.  On 31 August 2022, I gave directions for the beneficial ownership of the FMH to be tried as a preliminary issue and for that purpose, the Mother was joined as the 2^nd Respondent. Directions were given for pleadings to be filed. The Mother filed her Points of Claim on 12 October 2022, and the Wife filed her Points of Defence on 9 November 2022.

8.  After service, both parties filed their respective application to strike out part of the other’s pleadings. Directions were given for their applications to be decided on paper, of which I hereby do.

Legal Principles

9.  Both sides rely on O.18 r.19(1) (b) & (c) of the Rules of High Court (“RHC”) which states:

“19 (1) The Court may, either of its own motion or on application, at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that –

(a) …

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) … “

10.  There is no dispute that striking out should only be made in plain and obvious cases. There should be no trial upon affidavit. The burden is on the party seeking the striking out to demonstrate that the case is a plain and obvious one in which the other party’s claim is bound to fail: See Hong Kong Civil Procedure 2023 at 18/19/4.

11.  The court has a general jurisdiction to expunge scandalous matter in any record or proceeding. Relevance, is an important consideration. A discussion on the exercise of such jurisdiction could be found in the Judgment of Barma J (as Barma JA then was) in Re Linea Trading Co Ltd (HCCW 350/2004, [2005] HKEC 1225), [4]:

“(1) Scandalous has the same meaning in Order 41 rule 6 as it does in Order 18 rule 19 dealing with the striking out of pleadings. Thus, degrading, indecent and offensive charges made in an affidavit will be regarded as scandalous if they are irrelevant or inadmissible in evidence to prove any material allegation in the petition (see e.g. Cashin v Cradock (1877) 3 Ch 376; Christie v Christie (1873) LR 8 Ch App 499, in the context of striking out a pleading);

(2) Matters which are material will not generally be struck out even if they are offensive, although when unnecessary detail is given, that may be susceptible to being struck out (see e.g. Blake v Albion Assurance Society (1846) 45 LJCP 663, also in the context of striking out of pleadings).

(3) Irrelevant matter may be struck out even if not scandalous (Re J (An Infant) [1960] 1 All ER 603).

(4) It is wrong to include argumentative material in affidavits and such material may be struck out (see e.g. Deak v Deak Perera Far East Limited [1991] 1 HKLR 551).

(5) The court may take one of three approaches to an affidavit in which there is scandalous, irrelevant or oppressive matter: -

(a) It may decline to strike the matter out, on the basis that it is capable of excluding such material from its mind when deciding the issues which arises for decision; or

(b) It may think it appropriate to strike out some or all of the material complained; or

(c) It may, in an extreme case, order the entire affidavit to be taken off the court file.

Which of these courses is adopted will depend on the circumstances of the case, regard being had to the nature and extent of the objectionable material.”

12.  The expression “frivolous or vexatious” includes proceedings which are an abuse of the process. A proceeding is frivolous when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed. A proceeding is vexatious when it is oppressive and/or lacks bona fides: See Hong Kong Civil Procedure 2023 at 18/19/7.

13.  The mere fact that a pleading contains some unnecessary matter is not sufficient ground for an application for striking out. A statement will not be struck out merely because it is unnecessary, so long as it is otherwise harmless. Similarly, a pleading will not be struck out unless it is clear on the face of the allegations that they are irrelevant. It is no part of the one party to reform the other party’s pleading; but if wholly immaterial matter be set out in such a way that the applicant must plead to it, and so raise irrelevant issues which may involve expense, trouble, and delay, then the irrelevant matter will be struck out, as it will prejudice the fair trial of the action: See Hong Kong Civil Procedure 2023 at 18/19/8.

14.  I will bear the above principles in mind when I come to decide on the parties’ respective application.

The Wife’s Striking Out Application

15.  The Wife applies to strike out paragraphs 20-23 of the Mother’s Points of Claim, which read:

“20． 呈請人婚後的工作和收入低，且不穩定，卻經常逢平日晚和週末往朋友家打麻雀和玩樂，通宵達旦。她對於其兒子（即第二答辯人的孫子）疏於監督管教，更經常帶同兒子一起去打麻雀，以及學期中途帶兒子回湛江鄉下探親，導致後者荒廢學業。她並教導尚未成年的兒子喝酒，容許他吸煙。因此，兒子無論學業成績和操行都慘不忍睹，中學二年級留學兩年後被學校勸諭退學。其後兒子在職業進修學院就讀機械工程，但呈請人和兒子仍然不知悔改，導致兒子終日曠課，並已收到學院通知，因上課時間不足，考慮勒令退學：其後兒子轉讀髮型設計，以便延續學業。

21． 呈請人對第二答辯人的態度惡劣，與第二答辯人的關係長期陷於緊張的狀態。 呈請人購買食物、水果或零食回家，沒有與第二答辯人分享。即使第二答辯人在家，呈請人在家裡煮食也沒有預留給第二答辯人。另一方面，呈請人嫌棄第二答辯人買回來的食物。第二答辯人為避免婆媳衝突，日常飲食除了在其工作的餐廳解決，只能自己出外進食。

22. 2020年4月底，第一答辯人與呈請人就兒子的學業和操行、呈請人沒有履行妻子及母親責任，以及婆媳相處等問題，產生爭執。呈請人指責第一答辯人給予的家用減少，第一答辯人提出呈請人應體諒新冠疫情期間其收入減少，要求呈請人幫手煮飯給家人（包括第二答辯人）食用。當晚，第二答辯人發現呈請人帶同兒子離開該房產。其後，第二答辯人或第一答辯人告知，呈請人致電第一答辯人，明確表示拒絕與第二答辯人同住，要求第一答辯人搬離該房產，前往 呈請人位於缽蘭街的新居所，與呈請人居住。由於第一答辯人沒有答應呈請人的要求，呈請人另提出，第一答辯人一半時間與呈請人居住於缽蘭街的居所，另一半時間與第二答辯人居住於該房產。第一答辯人同樣沒有答應。

23. 數月後，第一答辯人告訴第二答辯人，呈請人要求第一答辯人將該房產無償轉讓給呈請人。基於呈請人對第二答辯人的敵視態度，第二答辯人擔心第一答辯人懾於呈請人威嚇，會在第二答辯人不知情的情況下將該房產轉給呈請人，屆時第二答辯人將無法繼續於該房產居住，又沒有能力尋找其它住處。因此，2020年底，第二答辯人要求第一答辯人根據雙方協議將該房產轉回給第二答辯人， 確保她不會沒有住所。第二答辯人提出，如果第一答辯人願意，轉名後可繼續 在該房產居住，呈請人及其兒子也可以回來居住。第一答辯人接受第二答辯人的要求。”

16.  The gist of the Wife’s complaints is that paragraphs 20-22 of the Mother’s Points of Claim contain a total of 17 factual allegations directed solely at the conduct of the Wife and the parties’ son. All these allegations, even if true, do not have any bearing on the central issue of whether there was a common intention constructive trust/resulting trust in favour of the Mother on the beneficial title to the FMH. All these irrelevant allegations should therefore be struck out.

My Views

17.  The first observation to be made is that counsel’s submissions directed only at paragraphs 20-22 of the Mother’s Points of Claim, but nothing was mentioned on paragraph 23.

18.  From a fair reading of paragraphs 20-22, the Mother was trying to portrait the Wife as a person who would indulge in mah-jong playing and neglected the proper caring of the son. She had also treated the Mother badly and even refused to cook for her. This had led to many arguments and the eventual separation of the parties.

19.  I agree with counsel submissions that all these allegations, even if true, do not have a sufficient connection with the central issue of whether there was a common intention constructive trust or resulting trust in favour of the Mother.

20.  In order to prove a common intention constructive trust, the Mother has to prove that she and the Husband had an express agreement or at least a tacit understanding on the beneficial interest of the FMH. In proving a resulting trust, the Mother has to prove that all the purchase moneys were paid by her and those payments were not gratuitous in nature. But what paragraphs 20-22 of the Mother’s Points of Claim sought to establish were that the Wife was not a good spouse, nor a good parent. These are clearly irrelevant materials to the central issue of the beneficial ownership of the FMH. By putting in all these irrelevant materials, it would be unfair if the Wife should not be given an opportunity to refute, which would in turn prejudice or delay the fair trial of the preliminary issue. I am of the view that paragraphs 20-22 of the Mother’s Points of Claim should not be allowed to remain and must therefore be struck out.

21.  As far as paragraph 23 is concerned, I could only take that the Wife is no longer insisting on a striking out. After all, by reading paragraph 23 objectively, I am satisfied that it could be regarded as background information to explain why the Mother demanded a transfer back of title from the Husband. Therefore, I am not minded to make any striking out order on paragraph 23.

The Mother’s Striking Out Application

22.  The Mother applies to strike out the second sentence of paragraph 8(1) and the second sentence of paragraph 11 (9) of the Wife’s Points of Defence, which read:

“8． 呈請人否認第11段所述事項：

(1) 第二答辯人的說法和第一答辯人經濟情況陳述書2.13，第4.2以及 第5. 5部分聲稱第一答辯人每月還款給予第二答辯人互相衝突。在此情況下，第一答辯人和第二答辯人其中一方必定曾經在第一答辯人經濟情況陳述書或第二答辯人申索要點中在宣誓下向法庭作假證供，應被刑事檢控；

…

11. …

(9) 第二答辯人以推定信託 (constructive trust) 或歸復信託 (resulting trust) 成為該房產的實質擁有人的說法，目的是為了迎合第一答辯人在第一答辯人問卷回覆書提出該房產是以信託持有的新近說法。第一答辯人及第二答辯人在宣誓下兩人共同向法庭作假證供，應被刑事檢控。”

23.  According to these 2 paragraphs, the Wife is saying that the case as pleaded by the Mother was so inconsistent with some of the evidence of the Husband that one of them must be lying and their perjury should be criminally prosecuted.

My Views

24.  The cases of the Mother and the Husband may, or may not be consistent but that should be a matter for the trial. An averment that one of them must be lying, or that they have committed perjury and should be criminally sanctioned is, in my view totally unnecessary. These averments should not appear in the Wife’s Points of Defence. I have thought of whether this court should simply ignore those pleadings, saving a striking out. But since the court would strike out part of the Mother’s Points of Claim, coupled with the fact that the Husband is currently acting in person, I am convinced that it would only be fair that these two sentences of the Wife’s Points of Defence, being unnecessary and therefore irrelevant, should also be struck out.

Orders

25.  Based on the above reasons, I hereby make the following orders:

For the Wife’s Summons dated 23 November 2022

(1)  Paragraphs 20-22 of the Mother’s Points of Claim filed on 12 October 2022 be struck out; and

(2)  The Mother to file and serve an amended Points of Claim with paragraphs 20-22 therein being struck out within 14 days from the date of this order.

For the Mother’s Summons dated 3 January 2023

(3)  The second sentence of paragraph 8(1) and the second sentence of paragraph 11 (9) of the Wife’s Points of Defence be struck out; and

(4)  The Wife to file and serve an amended Points of Defence with the second sentence of paragraph 8(1) and the second sentence of paragraph 11 (9) therein being struck out within 14 days from the date of this order.

Costs

26.  Both parties’ applications are successful either wholly or substantially. I think it is fair for the parties’ costs, including all costs reserved with certificate for counsel to be costs in the cause of the preliminary issue trial. This will be in the form of an order nisi, to be made absolute after the expiry of 14 days from the handing down of this decision.

Representation: