LWSE v. LPT

FCMC 15829/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MATRIMONIAL CAUSES NO. 15829 OF 2015

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RAESONS FOR DECISION
(Leave to appeal)

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Introduction

1.  On 20^th January 2016, the Petitioner (hereinafter called “the wife”) made an ex parte application to Duty Judge A. Yim of the Family Court for injunctive relief pursuant to :-

a. Section 17(1)(a) of the Matrimonial Proceeding and Property Ordinance (Cap.192)(hereinafter called “the MPPO”); and/or

b. The inherent jurisdiction of the court, for mareva injunction and for other associated directions.

2.  After hearing the said application, Deputy District Judge A. Yim granted an injunction order (hereinafter called “Ex Parte Order”) against the Respondent husband (hereinafter called “the husband”) and adjourned the matter to a return date on 27^th January 2016 for inter parte hearing.

3.  The Ex Parte Order sought to restrain the husband from dealing with the time deposit kept in the HSBC account up to the value of HK$1,486,196.70.

4.  On 27^th January 2016 (return day), deputy Judge A. Yim made an Order, inter alia, that the injunction order, which was made ex parte by the wife on 20^th January 2016, be continued until further Order (hereinafter called “Continuation Order”).

5.  On the 2^nd Return Date hearing, the husband indicated that he opposed to the injunction order (i.e. the Ex Parte Order and the Continuation Order).

6.  Subsequently, the substantive hearing was heard before me on 6^th September 2016 and I gave my ruling on 24^th October 2016 that :

1) the application made by the husband to discharge the Continuation Order be dismissed;

2) paragraph(1), (2) and (3) of the injunction order made by Deputy District Judge Yim on 27^th January 2016 be continued until further Court order with the following exception be added :-

“the husband be allowed to withdraw HK$3,000 per month on the last day of each and succeeding month with effect from 31^st August 2016 by transferring the said sum of HK$3,000 per month from the restrained HSBC account to the account designated by the wife as part performance of the husband’s obligations under the existing interim maintenance order for the maintenance of the wife and the daughter.”

3) credit would be given for the said payments of $3,000, and all the aforesaid monthly payments will be paid on account of any sum eventually received by the wife and/or the husband when the AR is determined.

Proposed grounds of appeal

7.  The husband now wishes to apply for leave to appeal the Order. In essence, the husband says that I was wrong in refusing to discharge the Continuation Order. He sets out 5 proposed grounds of appeal in his draft Notice of Appeal as follows :

(1) That I erred in giving weight or had given undue weight to the Whatsapp messages exhibited and relied upon by the wife in support of her application for the Injunction to show the husband’s intention to defeat the wife’s claim for financial relief in the proceedings (“Ground 1”);

(2) That I erred in finding that the failure to make full and frank disclosure on the part of the wife in relation to her own financial condition when making the application for the Injunction is immaterial (“Ground 2”);

(3) That I had failed to take into account the likely nature and extent of the financial relief that the wife may receive at the trial of the financial relief issues (”Ground 3”);

(4) That I erred in finding that the balance of convenience did not lie in favour of discharging the Injunction (“Ground 4”); and

(5) That I erred in ruling that the wife’s failure to conclude the matters promptly did not cause serious prejudice to the husband, which should render the discharge of the Injunction (“Ground 5”).  

Applicable law on leave to appeal

8.  It is trite to say that section 63A(2) of the District Court Ordinance provides that leave to appeal shall not be granted unless:

(a) the intended appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice that the appeal should be heard.

9.  The relevant test of whether an appeal has “a reasonable prospect of success” is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011.

10.  For the “some other reason” ground for granting leave to appeal, it is impossible to give an exhaustive list of the circumstances that the Court of Appeal would find that there are some other reasons in the interest of justice that an appeal should be heard.  The Court of Appeal may grant leave if the question is one of general principle, decided for the first time, or a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage (See: Hong Kong Civil Procedures 2016, Vol 1 para 59/2A/4 at p1067).

11.  The husband’s appeal is directed to the Judgment made in the exercise of my discretion. It is trite to say that where the court below exercised a discretion, the appellant court would only intervene when it considered that the judge below had exceeded the generous ambit within which the judicial disagreement was reasonably possible, and was in fact plainly wrong, and not merely because the appellant court preferred a solution which the judge had not chosen (See: G v G [1985] 2 All ER 225; RK v YS, HCMP 1969/2012 (date of judgment: 1 November 2012)).

12.  I shall now turn to his grounds of appeal.

Grounds (1)

13.  Mr. Chow, counsel for the husband, argued that I erred in my approach in dealing with the evidence of the Whatsapp Messages exhibited by the wife. Mr. Chow submitted that in the case of Chan Sung Lai, when considering placing no weight on the transcripts of the video footage recordings which were secretly filmed by one party, the Court of First Instance regarded to the unfairness to the other party that he had no opportunity himself to examine the video footage to determine whether or not any other passages of recordings should be put before the court.

14.  Mr. Chow submitted that I erred in placing weight on the Whatsapp Messages before considering the husband’s account as to the alleged transaction and that without being availed with the chance to determine whether any other Whatsapp Messages and any voice messages should be put before the Court to support the husband’s version, there had been great unfairness and prejudice to the husband.

15.  I stated in paragraph 25 of my ruling that to decide on whether any weight should be placed on the Whatsapp Messages and the Recordings, the ultimate issue should be whether the wife had painted a highly misleading picture as suggested by the husband.

16.  If the wife had painted a highly misleading picture, it followed that there will be unfairness to the husband. From paragraphs 30 to 40 of my ruling, I set out the summary of the husband’s version and explanation to the Whatsapp Messages.

17.  It was not suggested by the husband that the Whatsapp Messages were not meant to be understood as what could be seen and construed linguistically. The husband’s case is only suggesting that there were reasons behind the transfer of the money and the opening of another bank account.

18.  Therefore, from paragraphs 41 to 42 of my ruling, I gave my reasons to the husband’s version that even if his version was believable, it was nothing different from a clear intention of dissipation of matrimonial assets.

19.  Nevertheless, the husband’s version was not believable according to my ruling. From paragraphs 43 to 45 of my ruling, I gave my reasons as to why the husband’s version was not believable. I did not place any weight on the Whatsapp Messages in isolation, instead I considered those Whatsapp Messages in the context of the husband’s version first, before I came to conclusion to reject the husband’s version.

20.  I am therefore not able to see that I erred in my approach in dealing with those evidence, and that I erred in placing weight on the Whatsapp Messages before considering the husband’s account as to the alleged transaction.

21.  It was submitted by Mr. Chow that the wife still fell short in proving that the husband’s intention was to defeat her claim in ancillary relief and that I overlooked and/or ignored the evidence proving that Tong Gor was never the husband’s daytime taxi driver and the amount of rental incomes stated in the husband’s profit and loss statement in 2014/2015.

22.  Ms. Wong who represented the wife had adopted the written submission prepared by Mr. Yip and it was submitted that daytime, nighttime, or shift-work was really not the core of the question.

23.  It is not disputed that the money intended to be transferred by Tong Gor belonged to the husband, therefore I do not see why the wife needed to prove the nature of the money i.e. revenue or repayment of debts. Likewise, I do not see there is any need to show that Tong Gor is a daytime or nighttime or shift-work driver.

24.  The main issue remained whether the husband intended to defeat the wife’s claim in ancillary relief, and whether the money transferred belonged to the husband.

25.  Mr. Chow submitted that I failed to take into account that a single transaction should not be regarded as dissipation with intention to defeat the wife‘s ancillary relief claim and that the transaction concerned only a relatively small portion of the family assets.

26.  From paragraphs 47 and 48 in my ruling, I had made it clear that the amount involved is only one of the factors to be considered, and that the overall conduct and the actual plan of the husband was more important when considering whether there was any real risk of dissipation.

27.  I had concluded that the arrangement between the husband and his sister is to have a plan to conceal property. The transfer made by Tong Gor was part of the plan, Hence, I do not find that the transfer made by Tong Gor was merely a single transaction.

28.  The wording of the Whatsapp Message is plain and straightforward. It showed a clear intention of dissipation of the matrimonial assets, and the only purpose is to defeat the wife’s claim for financial relief.

29.  I find that there is no reasonable prospect of success on Ground 1.

Ground (2)

30.  Mr. Chow also submitted that in making the determination on the question of material non-disclosure, I failed to direct myself to consider the relevant guidelines and authorities, and that I also erred in ruling that non-disclosure of those assets are immaterial.

31.  The husband had complained that the wife deliberately concealed the fact that the husband transferred HK$560,000 to the wife. From paragraphs 66 to 70 of my ruling, I had given my observation to the allegation made by the husband and concluded that the wife was not required to give an account of the history tracing back to December 2013.

32.  The husband also complained that the wife had dissipated within 10 months a total sum of HK$263,133.99. From paragraphs 73 to 74, I had given my reason as to why the complaint made by the husband should fail.

33.  The husband also complained that the wife had failed to disclose the number of golden bracelets, luxury watches, insurance policies and Chong Hing Bank account. In paragraph 77 of my ruling, I am of the view that without further discovery of the wife’s and the husband’s assets, the aggregate value of these items (if any) would not significantly affect the amount previously restrained in the Continuation Order.

34.  The wife only received modest income, I do not see that there is a need to quantify each and every items of the assets of the wife so as to give a fair estimation of the wife’s claims under section 4, 5 and 6 of the MPPO at the moment.

35.  I therefore find that there is no reasonable prospect of success on Ground 2.

Ground (3)

36.  The husband’s 3^rd proposed ground of appeal is a repetition of what he has already said/submitted in the hearing, which I have considered. There is thus no need for me to analyse further on this ground, but would simply refer to what I have said in paragraphs 51–65 of my ruling.

37.  I see no reasonable prospect of success on Ground 3.

Ground (4)

38.  The husband’s 4^th proposed ground of appeal is that I erred in finding the balance of convenience does not lie in favour of discharging the Injunction.

39.  At paragraph 25 of the written submission of Mr. Chow, he stated that I failed to take into account of the fact that the wife’s interests had been well-protected and the husband’s urgent need in cash for repaying debts to third parties, living expenses and legal expenses.

40.  The Ex parte order sought to restrain the husband from dealing with the time deposit kept in the HSBC account for up to an equivalent of HK$1,486,196.70 only, when the total of the said time deposit was actually of RMB 1,511,147 (equivalent to HK$1,838,238.21).

41.  The husband is using the amount not restrained for his legal expenses; he chose to pay his legal expenses up front to his solicitors. The husband is free to make use of the rest of the matrimonial assets which was not being restrained in any way he prefers.

42.  Since I ruled that there is a real risk of dissipation by the husband, and I also considered all the issues raised under the topic of balance of convenience, I do not see that there is a reasonable prospect of success on Ground 4.

Ground (5)

43.  In Mr. Chow’s written submission under the topic of Ground 4, he submitted that an applicant who succeeds in obtaining a Mareva injunction is under an obligation to conclude the matter speedily, and he submitted that I erred in ruling the husband’s argument had no merit, without providing any reasons.

44.  Mr. Chow also complained that I had failed to consider the open offer made by the husband in the hearing, namely, consent to vary the Injunction to HK$800,000 should the Injunction not be discharged.

45.  The husband’s case is that he asserted that the Taxi (and the sale proceeds of the 1^st Taxi) is a unilateral asset or non-matrimonial asset, therefore he claimed that the wife may be entitled to around 20% only, whereas the wife’s approach to this issue is totally different.

46.  In my ruling at paragraph 78, I had ruled that the amount restrained in the Continuation Order is a fair estimation of the wife’s claims under section 4, 5 and 6 of the MPPO at the moment. If the amount is a fair estimation at the moment, there is sufficient reason for the wife to reject the offer (if any) made by the husband.

47.  I see no reasonable prospect of success on Ground 5.

48.  There is no submission that there is “some other reasons” in the interests of justice that the appeal should be heard, and I also do not find that there is “some other reasons” that the appeal should be allowed to be heard.

Costs

49.  I will make a costs order. Costs shall follow the event. I will make a decree nisi that costs of this application shall be to the wife to be taxed if not agreed, and the wife’s own costs be taxed in accordance with Legal Aid Regulations, such order to be made absolute upon the expiration of 14 days. There shall be certificate for counsel.

Conclusion

50.  I would repeat what I have concluded and ordered in this hearing:

(1) The Respondent’s summons filed on 7^th November 2015 for leave to appeal be dismissed;

(2) The Respondent do bear the Petitioner’s costs of this application to be taxed if not agreed, with certificate for counsel, this costs order to be made absolute upon the expiration of 14 days;

(3) The Petitioner’s own costs be taxed in accordance with the Legal Aid Regulations;

(4) This order be drawn up by the Petitioner.