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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| BETWEEN |
| | LWSE | Petitioner |
| and |
| | LPT | Respondent |
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Coram: Deputy District Judge D.Cheung in Chambers (Not open to public)
Date of Hearing: 6th September 2016
Date of Judgment: 24th October 2016
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RULING
(Interlocutory Injunction)
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Introduction
1. On 20th 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 27th 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 27th 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 20th January 2016, be continued until further Order (hereinafter called “Continuation Order”).
5. The terms of the Continuation Order can be found in Bundle A page 38 to 41 which I shall not repeat here.
6. Deputy District Judge A. Yim adjourned the return date hearing to 9th May 2016 for a 2nd Return Date hearing. On the 2nd Return Date hearing, the husband indicated that he opposed to the injunction order (i.e. the Ex Parte Order and the Continuation Order).
7. At the hearing on 9th May 2016, I adjourned the matter to 6th September 2016 for substantive hearing and gave direction to the parties to file further affidavit evidence.
Evidence and pleadings filed by the parties
8. Both parties had filed and exchanged their respective affirmations and Form E Financial Statements. Questionnaires and Requests for Further and Better particulars, and Answers to these Questionnaires/Requests had been filed and exchanged.
General Legal principles
9. Both counsels for the parties submitted that section 17(1)(a) of the MPPO requires an additional evidential burden to establish that the husband has disposed or is about to dispose family assets with the intention of defeating the wife’s claim.
10. It was submitted by Ms. Ng that the evidential basis for a s.17 injunction and a Mareva Injunction is different; and the onus under s.17 of the MPPO is heavier.
11. It was further submitted that although the evidential burden was not as high as that for a s.17 injunction, the evidential basis for risk of dissipation in a Mareva Injunction application must also be strong, and bare assertion of fear bears little, if any, weight.
12. Both counsels relied on relevant sections of Family Law and Practice in Hong Kong, 2nd Edition, Sweet & Maxwell. In particular, Mr. Yip referred me to para.15.001 – 15.073 on page 509-522; and Commentary to Order 29, Hong Kong Civil Procedure 2016.
13. Under para.15.012, it was stated that while orders made under s.17(1)(a) of the MPPO have similar consequences to a Mareva Injunction, the evidential basis for each is not the same. There is a heavier onus under s.17(1)(a) of the MPPO than for a Mareva injunction. Section 17(1)(a) requires the court to be satisfied that the other party is about to make a disposition or transfer out of the jurisdiction or otherwise deal with any property with the intention of defeating the claim for financial provision.
14. My view is that although the words used are different, the language all points in the same direction. A recent decision by Mr. Justice Mostyn in ND v KP (exp Application)[2011] EWHC 457 (Fam); [2011] 2 FLR 662; [2011] Fam. Law 677; (2011) 161 NLJ 702 in which the applicable legal principles have been succinctly set out:
“4. I want to begin this judgment, which is being given ex tempore and which I hope will be comparatively short, with some statements of principle. In ancillary relief proceedings there are two routes available to obtain a freezing order. An application can either be made under section 37 of the Matrimonial Causes Act 1973 or it can be made under the inherent jurisdiction. It was submitted by Mr. Turner QC in a case called Khreino v. Khreino [2000] FCR 80, CA that the effect of the decision of the House of Lords in Richards v. Richards [1984] AC 174, HL was that the only permissible route was the statutory one, but that submission was rejected.
5. That said, it would be a strange state of affairs if either the procedure or the test applicable under the statutory mechanism differed materially from that which applies under the inherent jurisdiction. Under the statutory test the court can restrain the transaction if it is satisfied that the other party to the proceedings is, with the intention of defeating the claim for financial relief, about to make any disposition, or to transfer out of the jurisdiction, or otherwise deal with, any property. So under the statutory test there has to be identified by evidence an impending transaction, or at least the risk of an impending transaction taking place.
6. It is really not very different from the test that applies under the inherent jurisdiction. I quote from Civil Procedure otherwise known as the White Book at paragraph 25.1.25.5 which states, citing a decision of Sir Peter Pain of O'Regan & Ors v Iambic Productions Ltd (1989) 139 NLJ 1378, that the applicant should depose to objective facts from which it may be inferred that the respondent is likely to move assets or to dissipate them; unsupported statements or expressions of fear have little weight. The notes go on to say that great care should be taken in the presentation of evidence to the court so that the court can see not only whether the applicant has a good arguable case but also whether there is a real risk of dissipation of assets. A freezing order should not be granted unless the applicant has established an appropriately strong case showing, amongst other things, that the respondent owns the assets concerned or has some interest in them. It is for the applicant to make out his case, and orders should not be granted simply because the respondent cannot show an immediate and obvious prejudice. That formulation is really not very different from the formulation in section 37 which I have recited above.
7. Indeed, it is mirrored by the comments in more vivid language of Thorpe LJ in the case of Khreino where he says this:
“Family Division judges day in day out exercise the inherent jurisdiction to grant injunctions to ensure that one spouse does not selfishly or irresponsibly salt away, squirrel away or spirit away family assets which may be in his name but which must be carefully preserved pending the ultimate judicial determination as to what proportion of that asset must be either transferred to or made available for the benefit of the applicant spouse.”
8. So whilst the words used are different the language all points in the same direction, namely that there must be a good case put before the court, supported by objective facts, that there is a likelihood of the movement, or the dissipation, or the spiriting away, or the salting away, or the squirreling away, or the making of a disposition, or the transfer, of assets, with the intention of defeating a claim. It all comes to the same thing.
9. What is to be emphasised is that in this country, unlike some other countries on the continent, we do not have a system of general saisie conservatoire whereby assets are automatically frozen pending the determination of a divorce claim. Indeed, one must remind oneself that the basic rule in this country is of separate property, and that is bolstered by Article 1 of Protocol 1 of the European Convention on Human Rights which says that every natural person is entitled to the peaceful enjoyment of his possessions. So, in order to obtain a freezing order there must be before the court a demonstration of objective facts that evidence the likelihood of the movement or dissipation of assets with the intention of defeating the applicant's claim. That is the first principle.
15. And in para 32, the learned judge said the following regarding the applicant in that particular case,
“32. Those submissions, in my view, expose the real motive behind the wife's application which was to obtain a freeze over the husband's assets for no reason other than it would be desirable to keep them preserved until trial. But that, as I have explained, is not the law in this country…”
16. In brief, there are two basic points.
17. The first is that the procedure or the test applicable under the statutory mechanism (i.e.Section 17 of MPPO) does not differ from that under the inherent jurisdiction, in the present case Section 52B of the District Court Ordinance, Cap 336. The same point was made by Mr. Justice Mostyn in L v K (Freezing Orders: Principles and Safeguards) [2013] EWHC 1735 (Fam); [2014] Fam 35.
18. The second is that there must be evidence showing the likelihood of the movement or dissipation of assets with the intention of defeating the applicant's claim.
The issues of the case
19. It was submitted by Ms. Ng that the injunction ought to be discharged for the reasons stated in paragraph 23 of her written submission. I shall treat those said reasons as issues of the case for discussion purposes:
(1) whether the wife had failed to show the intention of defeating the claim for financial provision (or a risk of dissipation) by the husband;
(2) whether the wife had failed to show a good arguable case;
(3) whether there was any delay by the wife to conclude the matters;
(4) whether the balance of convenience laid in refusing the injunction; and
(5) whether there were any material non-disclosures.
Failed to show intention to defeat her claim (or risk of dissipation)
20. Ms. Ng submitted that the wife’s allegation of the husband’s dissipating matrimonial assets solely based on various whatsapp messages (hereinafter called the “Whatsapp Messages”)and recordings (hereinafter called the “Recordings”) stored inside a Samsung mobile phone owned and used by the Respondent, and it was the husband’s case that the said phone was stolen by the wife on or before 19th December 2015. The phone as well as the information stored inside the phone, including but not limited to the Whatsapp Messages and the Recordings, belonged to the husband and had been obtained by the wife illegally.
21. Ms. Ng further relied on Chan Sung Lai v Chan Sung Lim Paul [2015] 4 HKLRD 268and submitted that when considering placing no weight on the transcript of the video footage recordings which were secretly filmed by one party, the Court of First Instance regarded to the circumstances in which the evidence came to be in existence, in particular 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.
22. Ms. Ng submitted that in the present case, no weight should be placed on the Whatsapp Messages and the Recordings, as the husband was not availed with an opportunity to examine them, particularly when there were some other recordings inside the whatsapp conversation, and that the wife had painted a highly misleading picture.
23. Firstly, whether it is unfair to the husband that he had no opportunity to examine the video footage to determine whether any other passages of recordings should be put before the court, my view is that since the husband was able to give his own version to the transaction with his sister and “Tong Gor” without resort to the Whatsapp Messages and the Recordings, I do not see that there is any unfairness to the husband.
24. In addition, it is clearly stated in Chan Sung Laiv Chan Sung Lim Paul [2015] 4 HKLRD 268 that there is no similar power in a Hong Kong court in civil proceedings to refuse to admit otherwise admissible evidence on the basis of either unfairness, or that the evidence has been illegally obtained (see paragraphs 30 to 32).
25. Therefore, to decide 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 Ms. Ng.
26. The evidence that the wife relied onto show disposition by the husband of the family assets to third party and intention to make disposition to defeat the wife’s claim were more particularly described in the 1st Affirmation of the wife from paragraphs 60 to 78.
27. In summary, it was submitted that the husband tried to evade service of the Petition or tried to pretend that the Petition was not served upon him, and the wife believed that such tactic was with a view to delay the process of the proceedings so that the husband may have more time to orchestrate his scheme to further transferring assets to other party, including his sister.
28. It was further submitted that the husband’s sister was trying to hold money for the husband, and that the husband was asking someone to pay money into the account of the husband’s sister. The wife stated that the husband’s sister explicitly mentioned in the whatsapp about the transferring of the assets to her, and that she was trying to hold money for the husband secretly.
29. The above wife’s allegation was denied by the husband. The husband stated that by suggesting that he tried to dissipate assets by asking Tong Gor to transfer money to his sister and his sister held some money for him, the wife misled the court by submitting screenshots of selected whatsapp messages and taking them out of context.
30. The husband explained that he would like to set aside some of his earnings in order to improve his mother’s living conditions. Such improvements included purchase of a new television in replace of the old malfunctioning home appliances, and painting and general renovation of his mother’s residence, and the husband had spent HK$40,000 for such improvements.
31. The husband also stated that there was an agreement between him and his sister that his sister would arrange for the improvements and he would repay the same to her.
32. The husband further explained that his sister was aware of the ongoing divorce proceedings together with the fact that he had been advised that his finances would be under scrutiny, his sister was afraid that any monies spent jointly would result in complications.
33. The husband and his sister had decided to pay his mother’s care out of monies not currently held in the Time Deposit account in his HSBC account (hereinafter called “HSBC Time Deposit”), but debts and favour paid to them by third parties.
34. The husband stated that as a result, he asked his friends including “Tong Gor” to transfer the money owed by them to his sister’s bank account. The husband stated that the total sum of loans owed by his friends were approximately HK$50,000 in total.
35. The husband further stated that the wife at all material times had full knowledge of the debts owed by his friends including Tong Gor.
36. The husband also stated that the 2 whatsapp messages in Chinese were garbled out of context. The husband said that his sister’s husband is extremely against the idea of his sister keeping any “pin money”.Therefore, his sister did not tell her husband that she had funds to pay for the renovation expenses of his mother’s residence and the dealings with Tong Gor in fear of aggravating her husband.
37. Another whatsapp message quoted by the wife related to the fact that the husband’s sister would open a bank account when the husband’s mother paid her HK$10,000 which was from the husband. The husband said that his mother did not want to accept any money from him and his sister.
38. The husband explained that the reason why his sister had to open another bank account was that she did not want her husband to know about the financial dealings she had with others.
39. The husband also said that neither Tong Gor nor he himself had ever transferred the said HK$39,700 to his sister, and that the husband’s mother also did not repay them the said HK$10,000.
40. The husband also explained that the reason why he had to repay his sister the costs on the improvements to his mother’s residence using the money from Tong Gor was to preserve the money in the HSBC Time Deposit.
41. If what the husband’s assertion was true, he was simply saying that his sister was repaid by those debts which his friends owed him. In that case, the plan of the husband was to try to cover up the fact that the debt had been repaid and settled, by secretly transferring the money to his sister.
42. The debt owed to the husband was also part of the assets of the husband, which may form part of the matrimonial assets. By transferring the money to his sister, the husband clearly intended to dissipate matrimonial assets by his own admission.
43. In addition, the husband’s version is also not believable. He said that the wife had full knowledge of the debts owed by his friends including Tong Gor and the wife had urged him to chase Tong Gor to repay the debt to him.
44. If that is the case, it is strange that the husband asked Tong Gor to repay the debt to his sister,unless the husband was of the view that the wife in future would never enquire as to whether the debt owed to him had been settled and repaid.The wife denied that she was aware of the fact that Tong Gor owed money to the husband, and the wife’s version was convincing.
45. The husband said that the reason why his sister had to open another bank account was that she did not want her husband to know about the financial dealings she had with others, yet the husband asked Tong Gor to transfer money to his sister‘s HSBC bank account. The action and the rationale given by the husband were full of contradiction, and did not make much sense.
46. Ms. Ng also submitted that the monies involved were just HK$39,700, and that if the husband was to evade any responsibilities by dissipating his assets in or since April or October 2015, the husband would have stopped paying maintenance to her in that month and he would not have renewed the HSBC Time Deposit when it became mature in November 2015.
47. I am of the view that the amount involved is only one of the factors to be considered, the overall conduct and the actual plan of the husband is more important when considering whether there is any real risk of dissipation.
48. The arrangement between the husband and his sister to open another bank account is clearly a scheme to conceal property whether present and/or future on the husband’s behalf. The wording being used in the whatsapp was clear and a solid evidence to show a real risk of dissipation.
49. There is no need for me to go into details as to whether the husband attempted to evade service of the Petition because even if the husband did not attempt to evade service of the Petition, there is solid evidence to show that the husband is planning to dissipate assets with the intention of defeating the claim for financial provision which included the wife’s potential claim for periodical maintenance for herself and the daughter.
Failed to show a good arguable case
50. Ms. Ngsubmitted that the wife fell short in proving that her entitlement of the matrimonial assets is as high as HK$1,468,196.70.
51. According to the wife’s 1staffirmation dated 20th January 2016, the wife’s case was that the amount that she sought to restrain was only limited to her fair share of the family assets (subject to further discovery). The calculation of the amount being restrained was more particularly described in the wife 1st affirmation from paragraphs 16 to 30.
52. In summary, the wife stated that there were 2 major matrimonial assets of the family, namely the taxi which was acquired by the husband in 2013 (hereinafter called “the 2nd taxi”) through hire purchase and a fixed time deposit of RMB 1,511,147(equivalent to HK$1,838,283.21) kept in HSBC account.
53. The wife said that the value of 2nd taxi is HK$6 million and after deducting the outstanding principal owing to the bank, the net value of the 2nd taxi was HK$940,055.73.
54. Therefore, the wife believed that the aggregate value of the aforesaid 2 major matrimonial assets of the family would be at least HK$2,778,338.94. In addition to that, the wife also said that the husband held another HSBC savings account in his sole name.
55. The wife said that notwithstanding the recent rapid draining of the balance in this account by the husband, there was at least HK$158,054.46 in the said account. Therefore, the wife believed that the aggregate value of the family assets would be at least HK$2,936,393.40.
56. The wife stated that the marriage lasts for more than 10 years, and at all material times, she was also employed and has her own monthly income. She believed that she was entitled to half of the family assets by applying the 50/50 principle, and that HK$1,468,196.70 represented her fair share of the family assets.
57. The wife further stated that she had maintained certain bank accounts and insurance policy and MPF account, but the money and assets kept by her or held under her name are insignificant comparing to the aggregate net value of the family assets.
58. Ms. Ng submitted that it was possible that the court, at the ancillary relief trial, considered that the 2nd taxi and the sale proceeds of the 1st taxi was a unilateral asset or non-matrimonial asset and the wife may be entitled to round 20% or less. Ms. Ng relied on SCT v. CT unrep., FCMC 15783/2011 and TCWF v. LKKS (No.1) [2014] 1 HKLRD 896.
59. Ms. Ng also submitted that when purchasing the 1st Taxi, the husband’s parent provided a loan of HK$300,000 to the husband, while the balance was obtained from bank financing.
60. The wife stated that the 1st Taxi was purchased in 2008 during the marriage, and that the initial deposit for the sum of HK$100,000 of the 1st taxi was actually paid by her using a cheque drawn by her company. She admitted that the said sum of HK$100,000 was also regarded by the parties as part of the matrimonial assets.
61. The husband’s explanation was that since he did not have checking account, his parents deposited HK$300,000 cash to the wife’s bank account. In that case, my view is that it was admitted by the husband that at least the said sum of HK$100,000 was paid through the wife.
62. Therefore, putting the husband’s case to the highest at the moment, his assertion was that the parent provided a loan to him, and if that was the case, the assertion of the husband would not change the fact that the 1st taxi was a family asset but only subject to the repayment of loans.In addition, it was still an issue to be determined in future whether there was any loan from the husband’s parent.
63. By reason of the aforesaid, the wife did show a good arguable case that the 1st taxi should be regarded as part of the family asset.
64. The wife further stated that as to the acquisition of the 2nd taxi, quite a substantial part of the fund used to acquire it came from the refinancing of the 1st taxi. She further stated that an initial deposit of the acquisition of the 2nd taxi in the sum of HK$300,000 was mainly from a loan that she made from Standard Chartered Bank (Hong Kong) Limited (hereinafter called “SCB”) (amongst the said HK$300,000, HK$260,000 was from her loan from SCB, HK$10,000 from her own, and the remaining are from borrowing from friends).
65. Since quite a substantial part of the fund used to acquire the 2nd taxi came from the refinancing of the 1st taxi, I am of the view that as the source of the money was from family asset, and with the assistance of the wife to borrow money from various sources, the wife had also showed a good arguable case that the 2nd taxi should be regarded as part of the family asset.
Hiding of transfer of HK$560,000 from the husband
66. Ms. Ng submitted that the wife deliberately concealed the fact that the husband transferred HK$560,000 to her on 3rd December 2013 so that she could settle her debts owed to SCB on 4th December 2013.
67. In the 3rd affirmation of the husband, he stated that it was the first time that he knew HK$300,000 was paid by way of loans taken out by the wife, and that when the hire purchase took place, he was not told where the money has come from and he thought that those monies would have been taken out from some of the family assets.
68. The husband further stated that after he transferred HK$560,000 to the wife on 3rd December 2013, the wife managed to settle the loan with SCB immediately on 4th December 2013.
69. In that case, there would be a surplus of approximately HK$260,000 to be held by the wife in her bank account. The wife stated that the said monies was used to pay credit card expenses incurred and/or used by the husband and pay family expenses, including the husband expenses, and some of the money was used to invest in stocks.
70. On 20th January 2016, the wife made her ex-parte application. I do not see there is any reason why the wife needed to give an account of a history tracing back to December 2013. I do not consider that the wife was trying to hide the transfer of HK$560,000 from the husband.
71. Ms. Ng also complained that on many occasions since about January 2015, the wife withdrew over HK$10,000 cash and sometimes over HK$20,000 from different bank accounts within one month. When being enquired about the reasons for such withdrawals, the wife answered that those were for household expenses.
72. It was also complained by Ms. Ng that a total sum of HK$263,133.99 had been dissipated by the wife within a short span of 10 months.
73. The wife’s case is that the husband paid her HK$15,000 and the said sum was insufficient to cover all the family expenses. The wife would also use her salary to support the family.
74. Firstly, the amount of the withdrawal complained by the husband was insignificant comparing to the aggregate value of the family assets. Secondly, taking into account of the span of time of 10 months, it would mean that on average, the wife withdrew HK$26,000per month. The amount of the withdrawal on average was not unreasonable and excessive amount to support a family, as the wife stated that she required more than HK$15,000 per month to run the household.
Other unaccounted matrimonial assets
75. Ms. Ng also submitted that the wife failed to disclose the number of golden bracelets received from the husband's parents or family, and that she failed to disclose she owned any luxury watches, insurance policies and Chong Hing Bank account.
76. Mr. Yip submitted that these were not material facts leading to the injunction, and that an application to an ex parte injunction had a duty to make full and frank disclosure on material facts not a duty to make unqualified full and frank disclosure regardless of the circumstances upon which the application was made and regardless of the question of materiality.
77. Although the value of the bracelets, luxury watches, the cash value of insurance policies and Chong Hing Bank account may affect the amount to be restrained in the Continuation Order, my view is that without further discovery of the wife’s and the husband’s assets, I am not convinced that the aggregate value of these items (if any) would significantly affect the amount previously restrained in the Continuation Order.
78. 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.
79. I agree with the observation made by Mr. Yip that the parties were yet to obtain directions from the court as to the extent to which each such questionnaire and/or request for particulars shall be answered, and the extent of any such documents are to be produced.
80. Ms. Ng also complained that the wife had refused to disclose transactions concerning securities. The husband said that on 15th December 2014, 27th January 2015, 15th April 2015 and 24th April 2015, the wife’s bank account had a number of transactions with an undisclosed brokerage accounts.
81. The husband further complained that upon being confronted, the wife still refused to disclose such assets and merely deflected his solicitor’s query by stating that she had not received dividends since April 2015.
82. The wife stated that the brokerage account had not been operated by her currently. Her answer was not inconsistent with her Form E when she declared that she did not hold any stock or securities.
83. The husband’s observation that there were transactions in April 2015 could not suggest that at the time when the wife made her 1st affirmation, she had failed to disclose that she had stock and securities.
84. I agree with Mr. Yip that the husband wrongfully assumed that he asked the wife, then the wife must answer and, if not, then the wife failed to make full and frank disclosure.
Legal expenses and possible medical expenses of the husband
85. Ms. Ng also submitted that the husband had been suffering from osteophytosis, and he was entitled to make use of the assets to pay for his medical expenses, and that the husband had to make use of the matrimonial assets to pay for the legal expenses, it was highly doubtful that the wife’s entitlement was as high as 1.4 million.
86. While the husband is free to make use of the matrimonial assets to pay for the legal expenses, the purpose of the Continuation Order is only to protect the wife’s entitlement. There is nothing to stop the husband to make use of the rest of the matrimonial assets which was not being restrained and represented his entitlement according to calculation of the wife.
87. As to the husband’s medical expenses, it could be covered by the husband’s monthly earnings. There is no evidence so far to suggest that the husband is unable to work in future. I see no reason why the legal expenses and the medical expenses of the husband could affect the wife’s entitlement.
Delay by the wife to conclude the matters
88. In gist, Ms. Ng complained that the wife failed to give any attempt to negotiate settlement with the husband. I do not see any merits of this argument submitted by Ms. Ng.
Balance of Convenience
89. Ms. Ng submitted that there is no urgency for the wife to have the injunction granted and that it was highly unlikely that the husband would sell the taxi, and the husband was in need of cash to sustain himself.
90. Ms. Ng further submitted that the husband had been deprived of the interests from the HSBC Time Deposit when the said deposit reached its maturity on 18th February 2016.
91. Since there is solid evidence to show a real risk of dissipation by the husband, there is urgency and need for the wife to have the injunction granted on an ex-parte basis so that the wife’s entitlement was protected.
92. The husband stated that he was in need of cash to sustain himself, and at the same time, he stated that the Petitioner had no financial stress at all but would be receiving maintenance pending suit from the husband until trial.
93. This is not the position now, as part of the maintenance pending suit for the wife and the daughter had to come from the HSBC Time Deposit.
94. It is not correct to say that the balance of convenience lies in refusing the Injunction taking into account of all the circumstances that I had discussed above.
Material non-disclosures
95. Ms. Ng also submitted that the foundation of the wife’s application for the Injunction arose from a matrimonial proceedings wherein the wife filed for divorce on the grounds of 2 years separation, therefore whether the parties had actually separated for two years is a material fact.
96. Ms. Ng also submitted that the wife had concealed certain facts which should have been disclosed to the court to consider whether there has been 2 years’ separation.
97. In essence, the alleged facts raised by the husband that the wife failed to submit to the court were facts relied on by the husband that there has been no separation. Ultimately, it is a question of whether the wife had showed a good arguable case that there has been 2 years’ separation.
98. In the wife’s 1st affirmation, she took the initiative to mention about the Taiwan trip and gave her explanation. She also gave a brief account of the facts that she relied on for the 2 years’ separation. I do not see what the husband is complaining about is amounting to any material non-disclosure.
99. By reason of the aforesaid, the application made by the husband to discharge the Continuation Order shall be refused and dismissed.
100. In the written submission of Mr. Yip related to the husband’s application for discharge of the Continuation Order, Mr. Yip had stated that the husband be allowed to withdraw HK$3,000 per month, being the purported reduced amount sought to be varied by the husband in the interim maintenance order, from the restrained HSBC account under the name of the husband given that the same are withdrawn to pay to the wife as part performance of the husband’s obligation under the existing interim maintenance order for the maintenance of the wife and the daughter.
101. Therefore, I will allow an amount of HK$3,000per month to be come from the restrained HSBC account.
Order
102. It is ordered 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 27th 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 31st 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.
Costs
103. 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.Lastly, I thank both counsels for their assistance.
| | David C. W. Cheung
Deputy District Judge
|
Representation:
Mr. Arthur Yip instructed by Messrs. Cheung & Choy, solicitors for the Petitioner
Ms. Sharon Ng instructed by Messrs. Yaddy Cheung &Co., solicitors for the Respondent