Smse v Kl

Judgment Date15 May 2009
Year2009
Citation[2009] 4 HKLRD 125
Judgement NumberCACV111/2009
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV000111/2009 SMSE v. KL

CACV 111/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 111 OF 2009

(ON APPEAL FROM HCMC NO. 2 OF 2006)

----------------------

BETWEEN
SMSE Appellant
and
KL Respondent

----------------------

Before: Hon Le Pichon JA and Poon J in Court

Date of Hearing: 13 May 2009

Date of Judgment: 13 May 2009

Date of Handing Down Reasons for Judgment: 15 May 2009

--------------------------------------

REASONS FOR JUDGMENT

-------------------------------------

Hon Le Pichon JA:

1. This was the adjourned hearing of a renewed application by the applicant for a stay of orders made by Hartmann JA (sitting as an additional judge of the Court of First Instance) on 9 and 30 April 2009 (“the orders”). By the orders, the judge dismissed the applicant’s summons to set aside a subpoena duces tecum served on him by the respondent (“the husband”) in matrimonial proceedings for ancillary relief between the petitioner (“the wife”) and the husband and ordering that there be production by the applicant pursuant to the subpoena of the documents identified in the judge’s ex tempore ruling of 30 April 2009.

2. The renewed stay application to this court was made in the context of the following circumstances. At the hearing on 30 April 2009, the judge granted the applicant leave to appeal the orders but refused a stay pending appeal because of “time constraints”, that being a clear reference to the fact that the trial for ancillary relief has been fixed to commence on 1 June 2009. The applicant, being a non-party to those proceedings, had played no part in the fixing of the trial dates.

3. At the conclusion of the hearing, this court granted a stay pending appeal for reasons to be handed down which we now do.

Background

4. The ancillary proceedings are between the wife and husband.

5. The applicant is the wife’s brother and a director of the principal company (“the Company”) in a group of companies owned by the wife’s family engaged in the business of manufacturing leather goods. The business was founded by the wife’s father in the 1970s and specialises in the manufacture of handbags.

6. The applicant was served in his capacity as a representative of the Company and also in his personal capacity as the person authorised to produce the documents of the Company specified in the subpoena. Neither the applicant nor the Company is a party in the ancillary relief proceedings.

7. In outline, the applicant and the Company’s involvement in the ancillary relief proceedings was not of their own volition but arose from the following circumstances.

8. The wife (who and whose family are from Hong Kong) met the husband who is a US citizen in the United States. They married there in 1987 and came to live in Hong Kong in 1988 when they joined the family business which, at the time, was a sole proprietorship. At the end of 1990, the Company was incorporated to take over the family business. The Company remained under the control of the wife’s immediate family although the husband and wife were given shares in the Company amounting to 15% of the issued shares and became directors. The husband and wife were responsible for marketing.

9. According to the husband, it was due to his efforts and ability to develop relationships with a number of highly prestigious brand name companies in the United States that the business moved into the luxury end of the handbag market and was transformed from a relatively small-scale enterprise into a significant business.

10. Both the husband and wife are US citizens. In about 2002, apparently for US tax reasons, the husband and the wife surrendered their shares in the Company and acquired two companies (“X” and “Y”) (of which they were the sole directors and shareholders) through which they conducted a marketing business. They acted as sales agents for the Company and charged commissions.

11. The husband and the wife separated in July 2004. The husband continued marketing for the Company until about August 2005. A decree nisi was pronounced on 28 April 2006.

12. In § 17 of the judgment of 9 April 2009,

“17. In addition to these ‘formal’ commissions [to X and Y] – and of central importance to the husband’s case in the ancillary relief proceedings – is his contention that, with the business doing so well, in or about 1990 an arrangement was set up in terms of which the husband and wife and other family members received further regular payments, effectively ‘informal’ commissions known as ‘family gifts’. It is the husband’s case – which is denied by the wife and her brother, [the applicant] – that these payments can accurately be described as commissions because they were calculated by reference to the sale price of [the Company’s] handbags.”

That additional fictional cost was said to range between 5 % and 8% of the price of each handbag but the...

To continue reading

Request your trial
422 cases
  • Man Kai Tak v 梁妹 And Others
    • Hong Kong
    • District Court (Hong Kong)
    • 8 May 2018
    ...of success; or (b) there is some other reason in the interests of justice why the appeal should be heard. 4. In the case of SMSE v KL [2009] 4 HKLRD 125, Le Pichon JA said this in paragraph 17 of the “Reasonable prospects of success involves the notion that the prospects of succeeding must ......
  • Jrmw v Nav
    • Hong Kong
    • Family Court (Hong Kong)
    • 21 August 2018
    ...that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (SMSE v KL [2009] 4 HKLRD 125 para 17). Furthermore, it is pertinent to bear in mind that even if there is a reasonable prospect of success on appeal, the court still ret......
  • Ve (Nee Ke) v Vrj
    • Hong Kong
    • Family Court (Hong Kong)
    • 31 March 2016
    ...that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (SMSE v KL [2009] 4 HKLRD 125 para 17). Furthermore, it is pertinent to bear in mind that even if there is a reasonable prospect of success on appeal, the court still ret......
  • Lcklm Nee Cklm v Lwk
    • Hong Kong
    • Family Court (Hong Kong)
    • 29 August 2016
    ...that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (SMSE v KL [2009] 4 HKLRD 125 para 17). Furthermore, it is pertinent to bear in mind that even if there is a reasonable prospect of success on appeal, the court still ret......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT