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Cwk v Ychs And Another

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date18 November 2015
Subject MatterMatrimonial Causes
Judgement NumberFCMC6082/2014
CourtFamily Court (Hong Kong)
FCMC6082/2014 CWK v. YCHS AND ANOTHER

FCMC 6082 /2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 6082 OF 2014

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BETWEEN
CWK Petitioner

and
YCHS 1st Respondent
CKY 2nd Respondent

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Coram: Deputy District Judge G. Own in Chambers (Not Open to Public)
Date of Hearing: 20 October 2015
Date of Decision: 18 November 2015

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D E C I S I O N
(Specific Discovery)

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Introduction

1. This is the Petitioner’s (Wife’s) Summons dated 5 June 2015 (“Discovery Summons”) for specific discovery against the 1st Respondent (Husband) on information and materials disclosed under his Form E and Answers to Questionnaires.

2. The terms of the Discovery Summons are, inter alia, production of :-

“a. Copies of the audited reports of PB since 2008 (Question 4(15) of the Petitioner’s Further Questionnaire filed on 14 April 2015);

b. Copies of the audited reports of UB since 2008 (Question 5(5) of the Petitioner’s Further Questionnaire filed on 14 April 2015);

c. Copies of the audited reports of SW since 2008 (Question 6(6) of the Petitioner’s Further Questionnaire filed on 14 April 2015);

d. Copies of all, complete and unredacted American Express Centurion card monthly statements, including the statements of the 1st Respondent, the Petitioner and the 2nd Respondent, from 1 May 2011 onwards to present (Question 18(3) of the Petitioner’s Further Questionnaire filed on 14 April 2015);

e. Copies of all, complete, unredacted securities account statements and/or transaction records of the 1st Respondent’s securities account number 012-xxx-63-xxxxx-6 with the Bank of China (Hong Kong) Limited from May 2011 onwards to present (Question 36(1) of the Petitioner’s Further Questionnaire filed on 14 April 2015);

f. Copies of all, complete, and unredacted bank statements of the 1st Respondent’s savings account number 012xxx10xxx538 with the Bank of China (Hong Kong) Limited from May 2011 onwards to present (Question 38(8) of the Petitioner’s Further Questionnaire filed on 14 April 2015);

g. Copies of all, complete and unredacted bank statements of the 1st Respondent’s savings account number 012xxx19xxx628 with the Bank of China (Hong Kong) Limited from May 2011 onwards to present (Question 39(12) of the Petitioner’s Further Questionnaire filed on 14 April 2015);

h. Copies of all, complete and unredacted bank statements of the 1st Respondent’s current account number 012xxx00xxx986 with the Bank of China (Hong Kong) Limited from May 2011 onwards to present (Question 40 of the Petitioner’s Further Questionnaire filed on 14 April 2015); and

i. Copies of all, complete and unredacted bank statements of the 1st Respondent’s Bank of China Visa Infinite Card number 4863-xxxx-xxxx-0019 from May 2011 onwards to present (Question 43(1) of the Petitioner’s Further Questionnaire filed on 14 April 2015).”

3. For the sake of brevity, the documents sought can be categorised as follows :

- “Audited Financial Statements” (items (a) to (c));

- “Amex Card Statements” (item (d));

- “Securities Account Statements” (item (e)),

- “Bank Accounts Statements” (items (f) to (h)); and

- “BOC Card Statements” (item (i)).

Background

4. The parties were married in 1987 in Hong Kong. This is a childless marriage (despite numerous artificial conception attempts) which was ended after 27 years in 2014. The Husband is now 56 and the Wife is 52. At the time of the marriage, the Husband was a construction site foreman and the Wife was a teller at a Bank.

5. In 1991, the Husband’s career in the construction and engineering industry started to take off. In 1996, the Wife resigned from her full time employment of an assistant bank manager at that time and became a full time housewife to assist the Husband with his growing business. In 1999, the Husband met the 2nd Respondent and around 2 years later in 2001, the 2nd Respondent gave birth to the 1st child with the Husband. Since then, this “extra marital” relationship continues up until present and throughout these years 4 children are born by the 2nd Respondent.

6. It is common ground that throughout all these years the Husband had been financially maintaining the ‘4-child family’ formed with the 2nd Respondent in parallel to the ‘childless family’ with the Petitioner.

The Divorce Proceedings

7. The Wife filed her Petition for divorce in May 2014 relying on the fact of “Unreasonable Behaviour”. Decree Nisi was granted on 24 July 2014 and all questions as to ancillary reliefs were adjourned for further disposal.

8. Parties exchanged their respective Form Es on 26 and 27 June 2014. The Wife served her 1st Questionnaire on 28 July 2014 (P2 : 419-429). The Husband’s Answers were filed on 25 August 2014 (P2: 524-543). The Wife issued a Summons on 9 April 2015 (P5: 1341 to 1344) seeking answers and documents in respect of the Husband’s Form E, inter alia, various bank deposits, securities account statements, MPF statements and other utilities expenses statements. This Summons was scheduled for hearing on 4 May 2015 which was then adjourned to 8 June 2015.

9. At a Direction hearing on 10 April 2015, the Petitioner obtained leave to serve her 2nd Questionnaire on or before 13 April 2015. This 2nd Questionnaire (P5: 1350 to 1402) was actually served 1 day late on 14 April 2015 of which no issue was taken by the Husband. The Husband then provided his answers to this 2nd Questionnaire on 29 May 2015 (P7: 1874 to 2273).

The applicable legal principles

10. It is common ground the Wife is relying upon Order 24 rule 7 of the Rules of the High Court (“RHC”) seeking the present discovery which was made applicable to matrimonial proceedings (see Rule 3 of the Matrimonial Causes Rules, Cap.179A).

11. Order 24 rule 7 of the RHC provides : “Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it.”

12. Order 24 rule 8 of the RHC provides :

“On the hearing of an application for an order under rule 3, 7 or 7A the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.”

13. Moreover, Rule 77(4) of the Matrimonial Causes Rules Cap.179A (“MCR”) provides :-

“(4) Any party to an application for ancillary relief may by letter require any other party to give further information concerning any matter contained in any affidavit filed by or on behalf of that other party or any other relevant matter, or to furnish a list of relevant documents or to allow inspection of any such document, and may, in default of compliance by such other party, apply to the court for directions.”

14. It is also common ground that the Wife is seeking production of the actual documents listed in the terms of the Discovery Summons as opposed to the Husband filing any affirmation to verify and confirm whether the documents sought exist and whether in his custody, power and possession.

Cases and Authorities

15. Senior Counsel Miss Anita Yip, SC for the Wife referred to a number of cases such as Paul’s Model Art GMBH & Co KG v. UT Ltd [2006] 1 HKC 238, Re Peruvian Guano Company (1882) 11 QBD 55, Yau Chin Kwan & Anor v. Tin Shui Wai Development Ltd unreported, CACV 247/2001, B v.B (matrimonial proceedings: discovery) [1979] 1 All ER 801 and K v.K unreported, FCMC 6100/2006.

16. Counsel Mr. Eugene Yim for the Husband referred to the cases of Melvin Waxman v. Li Fei Yu and others, HCA No.1973 of 2012, EL v. CFL, FCMC No.46858 of 2012, FCP v. CJLY, FCMC No.6202 of 2012 and Mimi Kar Kee Wong Hung v. Raymond Kin Sang Hung (2014) 17 HKCFAR 585.

The core issue

17. Given the fact that the Husband had provided his answers to the Wife’s 1st Questionnaire and had in addition, by way of voluntary disclosure through correspondence, produced documents of the same class as now requested by the Wife in the terms of the Discovery Summons, I believe the core issue lies with the period or extent of discovery rather than the nature and discoverability of the class of documents in question.

18. On such core issue, Counsel Mr. Yim submitted that the Wife’s requests are unnecessary, unjustified or excessive under the circumstances of the present case or are not proportional to the disclosure exercise. There must have a limit over disclosure. In the absence of justification as to the probative value of those documents for the extended period presently sought, this might be a ‘fishing exercise’ by the Wife. This Court should also note from the case management perspective that not only further costs would have to be incurred for obtaining those documents for the extended period, there are also costs implications for analysing the same. Furthermore, there had never been any issue taken by the Wife that amongst those documents already disclosed by the Husband, say for instance the AFS since 2011, had raised any suspicion on the Wife which warrant an extension of the period of disclosure beyond what would normally be required of by the Form E.

19. Senior Counsel Miss Anita Yip, SC, in reply to the submission of ‘fishing exercise’, referred this Court to the case of Charman v. Charman [2006] 2 FLR 422 where Wilson LJ at paragraph 38 of the...

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