Kgl v Cky And Another

Court:Family Court (Hong Kong)
Judgement Number:FCMC1453/2002
Judgment Date:05 Aug 2005
FCMC001453/2002 KGL v. CKY AND ANOTHER

FCMC 1453 of 2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 1453 OF 2002

_________________

BETWEEN

KGL Petitioner
and
CKY 1st Respondent
LSM 2nd Respondent

_________________

Coram : Her Honour Judge Chu in Chambers

Date of Hearing : 11 April, 12 April, 9 May & 9 June 2005

Closing Submissions for the Petitioner : 3 July 2005

Closing Submissions for the 2nd Respondent : 13 July 2005

Date of Handing Down of Judgment : 5th August 2005

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J U D G M E N T

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1. There were initially two summonses before me issued on behalf of the 2nd Respondent :

(i) a summons issued on 5th November 2004, (“1st Summons”) for, inter alia, leave to appeal to the Court of Appeal, out of time, the following orders :
(a) order of 5th November 2003, setting aside a disposition of HK$1.3 million by the 1st Respondent to the 2nd Respondent (“1st Disposition Order”)
(b) order of 20th November 2003, a substituted service order in relation to the Petitioner’s notice for avoidance of disposition in relation to a sum of HK$245,000 from the 1st Respondent to the 2nd Respondent, an injunction order dated 5th November 2003 freezing a sum of no less than HK$245,000 in the 2nd Respondent’s HSBC account, and the Petitioner’s supporting affidavit thereof (described as the “3rd Service Order” later in this judgment)
(c) order of 30th August 2004, anorder dispensing with service of the Petitioner’s 20th affidavit filed in support of her application for ancillary relief (described as the “4th Service Order” later in this judgment)
(d) that part of the order of 15th September 2004, which relates to 2nd Respondent, (“the 2nd Disposition Order”) for, inter alia,
· setting aside a disposition of HK$245,000 by the 1st Respondent to the 2nd Respondent
· the dispositions of HK$1.3 million and HK$245,000 having been set aside, the 2nd Respondent being indebted to the 1st Respondent in a total sum of HK$1,545,000, the 1st Respondent is ordered to transfer and assign this debt of HK$1,545,000 to the Petitioner
(ii) a summons issued on 9th November 2004, (“the 2nd Summons”) for, inter alia, setting aside the following 4 orders relating to service :
(a) order of 26th August 2002, forservice of the amended petition on the 2nd Respondent be deemed to have been effected (“the 1st Service Order”)
(b) order of 11th August 2003, dispensing with personal service on the 2nd Respondent of the order of 13th June 2003 requiring her to file her affidavit of means and that service of all other relevant documents on the 2nd Respondent be effected by delivery to 1st Respondent (“2nd Service Order”)
(c) order of 20th November 2003, for service of a copy of the Notice of Application for Avoidance of Disposition Order dated 4th November 2003 (later referred to as “2nd s.17 Application” in this judgment), an injunction order dated 5th November 2003, and a copy of the Petitioner’s 15th Affidavit on the 2nd Respondent be substituted by advertising once in the Oriental Daily News (“3rd Service Order”)
(d) order of 30th August 2004, for service of the Petitioner’s 20th Affidavit on the 2nd Respondent be dispensed with (“4th Service Order”)

2. On 18th April 2005 a further summons (“3rd Summons”) was issued on behalf of the 2nd Respondent to set aside the 1st and the 2nd Disposition Orders. On 9th May 2005, I granted leave to the 2nd Respondent to have the 1st Summons adjourned sine die with liberty to restore after the hearing of the 2nd Summons and the 3rd Summons. Thereafter the 2nd Respondent proceeded with only the 2nd Summons and the 3rd Summons.

BACKGROUND

3. W (“W”) and the 1st Respondent (“H”) were married in New York in February 1987 where they were then living.

4. After marriage, H and W continued to live in the United States, although work constraints kept them living apart for most of the time.

5. There are no children of the family.

6. In 1992, H returned to Hong Kong to work for his father’s stockbroking firm.

7. W said she met the 2nd Respondent (“L”) first, after H had returned to Hong Kong. W said after their meeting, she and L then became friends and it was only at about end of 1992, when L was returning to Hong Kong and voluntarily delivered W’s Christmas gift to H that L eventually met H in Hong Kong. However, L claims that she met H and W together socially in the United States in about July 1992. The details of the circumstances of how L met H are not relevant at this stage, save that L admitted first meeting H in 1992, and having kept in contact with him since and they later became good friends.

8. According to W, by 1994, H had formed an intimate relationship with L. This is, however, denied by L, who said that her intimate relationship with H only started on her birthday on 9th October 2002 and before then, they were only good friends. L said that during the period 1995 to 2000 she was living in the United States and she in fact married another man in the United States in July 1997.

9. Anyway, in 1994, W returned to Hong Kong and resided with H at his parents’ home. According to W, after her return, her marriage with H continued harmoniously, notwithstanding she was under the belief that H was then already having an intimate relationship with L.

10. After W’s return to Hong Kong, she did not take up any employment, and was financially dependent on H until he left Hong Kong and disappeared.

11. In the meantime, it appears that L had been coming to Hong Kong for holidays. L said her own marriage was not happy, and in 2000, as she was then 35, and as she was unlikely to conceive a child with her husband with her marriage having broken down, she was contemplating having a child from a sperm bank. She said she understood from H, with whom she had kept up contact since they first met, that his marriage had broken down sometime ago, and that he also wished to have a child. L said she then decided it was “more appropriate that her child should have a father whom the child would know and would provide for him and who would be to some extent involved in his life rather than just an anonymous donor”. Subsequently, a child was conceived by L out of artificial insemination on 28th January 2000, and she produced a letter from her doctor in Hong Kong in support of the fact that her child was born out of artificial insemination. What L says is that in 2000 H was only the provider of the sperms for her to conceive a child and that at that time her relationship with H was not yet an intimate one. L maintains that in 2000, there was no physical or intimate relationship between her and H. Her child (“C”) was born in the United States in October 2000.

12. L claims that when her pregnancy was confirmed, she reached an oral agreement with H for him to support her and her child and that H would purchase an apartment to provide for her child (“Oral Agreement”). L says the Oral Agreement was further evidenced by a birthday card H sent her in October 2000.

13. L further says that after birth of C she did not see H for a period of over 1 year until the end of June 2001, when C was about eight and half months old and when H went to the United States. L says she was originally planning to return to Hong Kong after the birth of C, but her health and C’s health prevented them from doing so until August 2001. It transpires that C has not been a very healthy child and as early as May 2001, when L and C were still in the United States, C was diagnosed with mild psychomotor delay, but according to L, she kept this from H as she was concerned that if H knew, he might renege on the Oral Agreement to support C.

14. Subsequently, according to L, H honoured the Oral Agreement and paid a sum of HK$1.3 million to her and part of the sum was used to purchase a flat which is at Woodlands Terrace, Central (“Woodlands Terrace Property”). This property is registered in the sole name of L. The address of Woodlands Terrace Property was, however, not disclosed to W and W only found out this address much later, in July 2003 (The copy of the land search produced by W bore a search date of 3rd July 2003).

15. On 8th February 2002, W petitioned for divorce based on H’s unreasonable behaviour. L was only cited later on 2nd May 2002 as the 2nd Respondent when W amended her petition.

16. According to the affirmation of H of 30th April 2002, he moved out of his parents’ home to live with L and their son C on 19th April 2002 in a rented flat at Cordial Mansion, Caine Road (“Cordial Mansion”).

17. L now gives a slightly different version of events in her affirmations. According to L, H told her in April 2002 that W had issued divorce proceedings against him and he asked to move to share her accommodation, to which she agreed. However, she said she and C occupied one bedroom and H was occupying another bedroom. L was then residing at Cordial Mansion with C. The lease at Cordial Mansion was only a temporary lease for 3 months from 1st February 2002 to 30th April 2002. L produced a copy of this temporary lease in her 2nd affirmation. L said she resided there from 4th February 2002, upon her...

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