Wkf v Cch

CourtFamily Court (Hong Kong)
Judgment Date15 Feb 2017
Judgement NumberFCMC359/2014
SubjectMatrimonial Causes
FCMC359/2014 WKF v. CCH

FCMC 359 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 359 OF 2014

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

BETWEEN

WKF Petitioner

and

CCH Respondent

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

Coram : Deputy District Judge Phoebe Man in Chambers (Not Open to Public)
Dates of Hearing : 26 – 28 October 2016; 9, 16,17 November 2016; 16 December 2016
Date of Handing Down Judgment : 15 February 2017

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

J U D G M E N T

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

Application

1. This is the trial of the Petitioner’s and the Respondent’s respective application for ancillary relief upon the dissolution of marriage. For convenience, the Petitioner is hereinafter referred to as the “Husband” whilst the Respondent is hereinafter referred to as the “Wife”.

The Law

2. In deciding on ancillary relief claims between the parties to the marriage, the Court is required by section 7(1) of Matrimonial Proceedings and Property Ordinance, Cap 192 (MPPO) to have regard to the conduct and all the circumstances of the case including the following matters:

(a) the income, earning capacity. Property and other financial resources which each of the parties has or is likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of the party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

(g) in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefits (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

3. The parties agree to the 4 principles to be borne in mind, as set out in in LKW v DD [2010] in LKW v DD (2010) 13 HKCFAR 537 at 559 - 563:

(a) Objective of Fairness;

(b) Rejection of Discrimination;

(c) Yardstick of Equal Division;

(d) Rejection of Minute Retrospective Investigation.

4. The steps to be taken in an ancillary relief trial, as set out in LKW v DD at 563 - 579, are also agreed by the parties:

i) Identification of assets;

ii) Assessing the parties’ financial needs;

iii) Deciding whether to apply the sharing principle;

iv) Considering whether there were good reasons for departing from equal division;

v) Deciding the outcome.

5. Little evidence was adduced on the parties’ financial needs as there was consensus between the parties that there were more assets than the parties’ financial needs. The parties agree that their respective application for ancillary relief should be met by a lump-sum payment, a clean break between the parties.

6. Given the parties’ positions, including not asking the court to consider their respective needs and the Court of Final Appeal’s guidance in Mimi Kar Kee Wong Hung v Raymond Kin Sang Hung (No 2) [2015] 18 HKCFAR 210 that it is desirable to have finality in matrimonial litigations, it is agreed that after identifying the assets and assessing their value, the Court would decide whether to apply the sharing principle and whether there are good reasons for departing from equal division.

Identification Of Assets

Assets not in dispute

7. The parties have no dispute as to the following assets and their division:


Assets

Value

Manner of Division

i) Matrimonial Home in Fanling

HK$2,620,000.00

50/50 equal division

ii) FS’s account in Communications Bank

HK$4.35

50/50 equal division

iii) Joint accounts with Bank of China

HK$5,468.82
RMB 93.22

50/50 equal division

iv) P’s bank accounts

HK$145,399.80
RMB 125.87

50/50 equal division

v) R’s bank accounts

a) HK$6,369 (half share interest of joint account with WTN)
b) HK$32,328

50/50 equal division

vi) interests in insurance policies, MPF policies

The Husband, the Wife and the children will retain 100% of all interests under their own respective names.

vii) trailers, cars

HK$255,054.00

50/50 equal division

viii) Debts under the Husband’s name

-HK$169,975.37

50/50 equal division

ix) Mortgages under the Wife’s name

-HK$2,742,874.60

50/50 equal division

x) Credit card debts under the Wife’s name

-HK$163,997.43

50/50 equal division

Assets in Dispute

8. Much of the Husband’s assets and liabilities are not disputed. The Husband on the other hand claims a share in assets that are alleged to be in the Wife’s name and disputes loans alleged to be owed by the Wife.

9. The Wife has in her name the following disclosed assets. It is noted that the Wife only owns 50% of these properties as there are co-owners to the various properties. The Husband does not dispute that the Wife only has a 50% interest in these properties. The co-owners to these properties were never joined as third parties as there has never been any allegation by the Husband that the co-owners’ share in the properties also belong to the Wife. The only dispute is that the Husband claims half of the Wife’s 50% interest in these properties whereas the Wife says they do not form part of the matrimonial assets at all. The properties in dispute are:

i) the “Unit 8B Factory”

ii) the “Unit 15A Factory”;

iii) the “Unit 4A Factory”;

iv) the “Unit 14D Factory”;

together, the (“4 Properties”).

10. The details of the 4 Properties are as follows:


Properties

Date of Purchase

½ share Valuation
(net of mortgage)

Alleged Source of Funding

Registered Owners

Unit 8B Factory

8 Nov 2010

HK$1,584,402

Borrowed from CSY

Wife (50%)

WTN (50%)

Unit 15A Factory

25 Jan 2011

HK$1,847,711

Borrowed from CSY

Wife (50%)

WTN (50%)

Unit 4A Factory

30 Apr 2013

HK$727,680

profit from previous investment

Wife (50%)

TCM (50%)

Unit 14D Factory

23 Aug 2013

HK$777,332

-

Wife (50%)

WTN (50%)

11. The Husband has in his first questionnaire dated 2 September 2014 asked for particulars of the Wife’s alleged debts. The Husband disputes the following loans:


Alleged Debts

Value

Manner of Division

Debt owing to CSY

HK$1,875,000

all debts are disputed as to existence and value

Debt owing to KYF

HK$500,000

Debts owing to WTN

HK$864,000

Debt owing to LHL

HK$750,000

Debt owing to YWY

HK$29,000

Debt owing to TCM

HK$90,000

Debt owing to LTK

HK$120,000

Total:

HK$4,228,000

Hidden Assets

12. The Wife’s Counsel contends that the Husband should have about HK$100,000 – HK$200,000 in terms of hidden assets, the figure is obtained by looking at his bank statements and deducting his usual expenses. The court does not consider that it can be inferred from merely circumstantial evidence that the Husband has hidden assets.

13. On the other hand, there is more basis to complain that the Wife has hidden assets: on the last day of the trial, the Wife, under cross-examination, admitted that during 2012 and 2013, she had in fact sold 6 more properties, with profits amounting to HK$779,155. Such profits were never disclosed in her Form E or witness statements. She alleged that such sums had already been re-invested into various other properties, but she had no recollection of any details.

14. Whilst the court finds the Wife to be evasive, both in terms of her non-disclosure and in terms of the quality of her oral testimony, there is insufficient evidence to say that such profits had not been utilized in the Wife’s investments and that such amount should be counted as additional to the matrimonial pool of assets.

15. Mostyn J. held in Kremen v Agrest [2012] 2 FCR 472 that: “where the court was satisfied that the disclosure given by one party had been materially deficient, the court was duty bound to consider, by the process of drawing adverse inferences, whether funds had been hidden. Such inferences had to be properly drawn and reasonable. If the court concluded that funds had been hidden, it should attempt a realistic and reasonable quantification of those funds, even in the broadest terms. In making its judgment as to quantification, the court would first look to direct evidence such as documentation and observations made by the other party…

16. There was no attempt by the Husband to explore, even in the broadest of terms whether such profits remain or whether they have been subsumed in other investments. The court holds that the Husband had not produced sufficient evidence to assert that the Wife has hidden assets.

Should the Sharing Principle apply?

Background

17. The Husband (now 53 years old) and the Wife (now 49 years old) were married in Foshan, PRC in August 1989. Two children were born to the marriage: a son was born in 1992 (the “Son”) and a daughter was born in 1997 (the “Daughter”). The parties agree that this is a long marriage of more than 24 years.

18. The Son is now 24 years old and currently studying full-time in the USA. The Daughter is 19 years old and is currently studying full-time in Hong Kong. There are plans for her to study overseas in future.

19. Before the parties were married, the Husband worked as a cross-border truck driver and the Wife worked as a waitress. Later on, the Husband acquired more driving...

To continue reading

Request your trial

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