CWGH v. CTTC

FCMC 13721 / 2018

[2021] HKFC 177

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 13721 OF 2018

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BETWEEN

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J U D G M E N T

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Introduction

1.  The Petitioner was the Wife (“W”). The Respondent was the Husband (“H”). Both parties are legally represented and instructed Counsel for this trial on ancillary reliefs.

2.  Parties were married in Hong Kong in November 2011. There was no child born out of the marriage. At trial, H was at the age of 37 and W at the age of 36.

3.  In October 2018, W filed a petition for divorce alleging H’s adultery/unreasonable behaviour leading to irretrievably break down of their marriage. The petition was later amended to remove “adultery” and went uncontested on the “unreasonable behaviour” of H for the divorce.

4.  Decree Nisi was granted in December 2019. Decree Absolute was granted in October 2020. This is a medium long marriage which lasted for around 7 years up to the time when H moved out from the former matrimonial home in September 2018 or around 8 odd years up to the time of the Decree Nisi. Although H in his answers to W’s questionnaires on finances repeatedly said W had locked him out of the former matrimonial home since October 2018[1], H later accepted in his narrative affirmation that it was he himself who moved out from the former matrimonial home[2].

Background

5.  Parties came to know each other in their university studies in the United Kingdom around 2003. Upon graduation and their respective return to Hong Kong around 2007/2008, they both secured full time employment within the banking/financial industry.

6.  In 2009, they purchased a property situated at xxx, xxx, xx x, xxxxx, xxx, Ap Lei Chau Drive, Hong Kong (“FMH”) under their joint names with the assistance of mortgage from the DBS Bank. The purchase price was HK$3.85 million[3] and that it was first rented out for yielding rental income. This property was later used by them as their matrimonial home upon their marriage in 2011. It is W’s case that she had cashed out a portion of her Sunlife insurance policy and paid HK$285,000 to the conveyancing lawyers for the purchase of the FMH[4]. This was not disputed by H.

7.  Not much was said or disputed by H over W’s beneficial interests in the FMH. There are also 2 carparks, namely, Nos.51 and 54 within the same residential complex of the FMH. Both carparks were purchased under the joint names of H and W in March and May of 2015. At one stage H contested that carpark no.51 was beneficially owned by his parents who paid for all the purchase price. Such contention was not pursued further by H and, as a matter of fact, no application had ever been taken out by H for determination of the beneficial ownership of carpark no.51.

8.  During the subsistence of the marriage, parties maintained 3 joint name accounts with the DBS Bank where either one of them could have access to the accounts if they so wish without the requirement of the other’s signatory. In this Judgment, I will refer to these joint name accounts as “127 account”, “033 account” and “409 account” for the sake of brevity.

9.  Hence, there are 3 landed properties (that is, the FMH, carpark no.51 and carpark no.54) and also 3 accounts with the DBS Bank under the joint name of the parties. Parties agreed the value of the FMH to be HK$9,505,000 and the carparks at HK$2,310,000 each.

10.  Apart from the 3 joint name accounts, H has 3 other joint name accounts with his parents at the Bank of China. He himself has a sole name account with HSBC HK, which I will refer to it as “H’s HSBC HK account”, and a sole name account with HSBC UK, which I will refer to it as “H’s HSBC UK account”.

11.  On the other hand, W has 2 bank accounts with HSBC HK, which I will refer to them as “HSBC 980 account” and “W’s HSBC account”.

12.  There are cross allegations against each other for having formed improper relationship with third parties. In addition, there are also allegations of biological dysfunctional issues leading to infertility of the parties. Suffice to say is that none of those cross allegations or issues, apart from escalating animosity between the parties, are of relevance for determining ancillary reliefs in the present case.

The Parties’Respective Position

(a) Landed Properties

13.  Both parties fairly agreed that this is a “sharing case”. In principle, parties are ad idem that the FMH and the 2 carparks be sold and the net proceeds of sales equally split between them; although there was the possibility of W buying out H’s portion or share.

(b) Funds in joint name bank accounts – DBS Bank

14.  For the funds in the joint name accounts, it is W’s case that H had, without her knowledge or consent, withdrawn substantial sums of money kept in the DBS joint name accounts soon after he moved out from the FMH in September 2018. W only came to know about the depletion of funds in the joint name accounts at the stage of financial dispute resolution in the course of these proceedings.

15.  Upon reviewing the bank statements, a total sum of around HK$1.10 million (of which W had included H’s two months’ salary of around HK$190,000 in total) was found to have been withdrawn by H within a time span of only 6 months between December 2018 and June 2019.

16.  W’s case is that it is only just and fair for this sum so withdrawn be either “addedback” to the matrimonial pot or, that the Court should cast a departure of 10% of the total matrimonial assets (which was estimated to be around HK$9.20 million) in her favour when determining ancillary reliefs.

17.  It is also W’s case that there was an agreement with H when they purchased the FMH back in 2009 that both of them would share all the costs and expenses for the FMH, including the mortgage instalments repayable to the mortgagee DBS Bank, utilities, management fees, rates etc.

18.  Despite her income was always less than H, she had from time to time caused sums of money which on average around HK$25,000 or above a month from her HSBC 980 account after she received her salary payment and bonus income and then credited into H’s HSBC HK account for fulfilment of their agreement as to sharing of the FMH expenses.

19.  The reason for her to transfer to H’s HSBC HK account instead of directly to the joint name accounts with DBS where mortgage instalments were debited was to avoid transfer charges between different banks. Throughout these years, W had entrusted H as the “treasurer” in that he would make use of her payments, together with his share of the contribution, to pay mortgage instalments and other related expenses of the FMH, and expecting that H would save up whatever surplus left over as their joint savings for their future use.

20.  To support her case, W tried to obtain from HSBC all records of transfers made by her to H’s HSBC HK account since 2009. Due to the lapse of time and the fact that her HSBC 980 account was a passbook account, she was only able to retrieve part of the records of transfers from 2012 onwards until December 2019 which added up to HK$1,992,948[5]. W agreed that she had never transferred moneys into any one of the joint name accounts with DBS for the reasons given above.

21.  In this trial, W is seeking the sum of HK$1.10 million withdrawn by H from the joint name accounts with DBS be added back to the matrimonial pot and then there be a 50/50 division to achieve equality or fairness. Alternatively, without having to “add-back” the HK$1.10 million, a simple way is to cast a departure of 10% of the matrimonial pot in her favour which would more or less be reflecting the HK$1.10 million unilaterally withdrawn by H.

22.  H’s case was that at all times he had allocated a specific purpose to each of the joint name accounts with the DBS Bank. The “033 account” was designated for servicing the mortgage payments of the FMH and carpark no.54; the “127 account” was for receiving his salary and thus served as his own personal savings account; and the “409 account” was for receiving rental of carpark no.51 (which H once alleged that car park no.51 was his parents’ investment) solely for the benefit of his parents.

23.  According to H, there had never been any mixing of funds between the 3 joint name accounts with DBS Bank or with those moneys transferred by W to him over the years. Funds kept in each of the joint name accounts had always been “ring-fenced” without inter-mingling with the others.

24.  The funds kept in the 127 account was his own moneys which had been withdrawn by him for meeting his personal expenses, and all the withdrawals are both necessarily made and reasonably spent. Admittedly by H, out of the funds withdrawn, he had given GBP20,000 to his father for reimbursing him for taking care of his living costs whilst he was in UK and in HK, another sum of GBP15,000 was given to his sister as a wedding gift. None of the moneys withdrawn was recklessly spent or wantonly squandered which entitled W to put forward her case of “add back” within established legal principles[6].

(c) Valuable Items

25.  It is H’case that there are some valuable items acquired during the marriage which had not been disclosed by W but should have been brought into the matrimonial pot. H made an effort to produce 2 Schedules attached to his narrative affirmation, namely, Schedule A (items agreed by W that were or once had been in existence) and Schedule B (items wholly omitted by W in her financial disclosure). H placed his own valuation against each of the items in the two Schedules.

26.  For Schedule A, there are 40 items in total which H estimated worth HK$648,679[7]. For Schedule B, there are 13 items in total which H estimated worth HK$864,023[8].

27.  Parties had engaged Mr. Simon Sham as the single joint expert who produced his valuation report dated 1 September 2020[9] in respect of 8 items of valuables in W’s possession and 3 items of valuables in H’s possession. All the valuables added up to the sum of HK$181,000.

(d) BMW car

28.  There was a BMW car registered under the name of W’s mother. Although W’s mother was the registered owner, it is common ground that the car formed part of the matrimonial assets with an agreed value of HK$220,000.

29.  At one stage H had driven away the car from the FMH without the knowledge of W. It ended up with W having to report to the police. It was only upon the sentiment of the Court at the Pre-Trial Review hearing that H returned the car to W.

(e) Lump Sum of HK$160,000

30.  W was made redundant since September 2019. She was still unemployed as at this trial. She sought a capitalised lump sum of HK$160,000 from H to assist her whilst she was seeking employment. This was based on the calculation of a 12-month period at HK$13,333 a month.

31.  Such item of claim was strongly denied by H for 3 reasons, namely, that W is well educated and could be readily employable; W has deliberately placed herself in a position of unemployment; and W has no financial needs as she was well provided for by her parents, let alone that W also has her own savings to live upon.

(f) Alleged material non-disclosure by H

32.  H was once a shareholder and director of a newly formed company “X10” in the United Kingdom which was incorporated on 9 March 2019. This was discovered by W through searches at the UK Companies House and not by H’s voluntary disclosure in his 2^nd Form E filed on 13 January 2020. Besides, it was also discovered by W in H’s LinkedIn that H was a director of another UK company by the name “Axxx Property Limited” which company used the same address of the company “X10”.

33.  However, W decided not to pursue further on H’s share, interests and involvement in these two UK companies notwithstanding that, through further searches of the public records, company “X10” was holding 3 landed properties in the United Kingdom recorded with value of around GBP330,000 in total. W only invited this Court to draw adverse inference against H for his lack of full and frank disclosure of his interests in the UK companies, his “dodging” of questions raised by W in relation to his interests in the said UK companies and thereby to properly assess H’s credibility.

34.  On such issue of material non-disclosure, H contended that since W had confirmed to the Court and to him that she did not pursue on the two UK companies, any submissions made against him on such topic was purely litigation tactics for gaining prejudicial advantage over H. Much ink was then spilt by H’s Counsel in his written submissions against W on her spending post-separation vis-à-vis H and to suggest that “fairness” asserted by W must also be addressed through comparing the parties’ respective spending pattern[10].

(g) Add Back of HK$1.10 million

35.  W’s claim for “add back” of the HK$1.10 million withdrawn from the DBS accounts by H was strongly opposed.

36.  According to H, the amount of HK$1.10 million (which H said that it should only be HK$920,000 because W had also included his 2 months’ salary income for December 2018 and January 2019 around HK$190,000) withdrawn by him had been reasonably spent for his living expenses, relocation costs back to UK, and legal fees since he had no other financial resources to drill upon as he had been unemployed for some time.

37.  Further, W had agreed during cross examination that the two sums of GBP20,000 and GBP15,000 given by H to his father and his sister respectively were reasonable. W only contested that those payments should not be made out of their joint savings kept in the DBS Bank accounts. In the absence of any evidence of reckless, wanton or extravagant spending so required by law for the “Norris” or “Vaughan” type of add-back to be applied against him, such claim by W should fail.

The Parties’ Open Proposals

Husband

38.  H’s Open Proposals are set out in his lawyers’ letter dated 5 October 2020[11] as follows :-

Landed Properties

39.  The FMH and the 2 car parks be sold with net proceeds of sale equally shared.

Bank Accounts – Joint Names

40.  There be an equal split of the existing balances in the “033 account”, “127 account” and the “409 account”.

Bank Accounts – W’s accounts with HSBC

41.  W may retain all the balances with her HSBC accounts.

Bank Accounts – H’s accounts with HSBC

42.  H may retain all the balances with his HSBC HK and HSBC UK accounts.

Bank Accounts – H’s accounts with BOC

43.  The balances in all the BOC bank accounts shall belong to H’s parents.

Cash and Chattels – Joint

44.  Parties do have an equal share.

Cash and Chattels – Others

45.  For items in respect of which the parties agreed had existed as set out in Schedule A of H’s narrative affirmation, which H estimated worth of HK$428,679, should be adopted and that each party shall have equal share.

46.  For items in respect of which W disagreed had ever existed whilst H maintained that they were omitted by W, of which H had listed out in Schedule B of his narrative affirmation with an estimated value of HK$864,023, it should be adopted and be split in the ratio of W having 75% and H having 25%.

Other Assets (Insurance) and Pensions

47.  W to retain her Sun Life Insurance Policy value and her MPF accrued value with HSBC MPF Super Trust Plan.

48.  H to retain his accrued benefits with AIA MPF account.

Wife

49.  W’s Open Proposals dated 5 October 2020 are as follows :-

(a) The FMH be sold with net proceeds of sale be divided equally between the parties. Alternatively, W to pay to H a sum equivalent to 50% of the net value of the FMH with H’s outstanding mortgage repayment be set off from the net sale proceeds and then the property be transferred to W’s sole name.

(b) Car Park Nos.51 and 54 be sold with net proceeds of sale be divided equally between the parties. Alternatively, the parties each to retain one car park.

(c) H to provide W with the sum of HK$53,861 (being HK$2,261 for renewal of car insurance and half of the rental received from Car Park No.51 at HK$4,300 a month since commencement of divorce in October 2018.

(d) The funds in the joint name accounts with DBS Bank be divided equally between the parties with the balances to be taken as of 16 November 2018, which is prior to H’s withdrawal of the sum of HK$1,199,929.52, and that all the joint name accounts be closed thereafter.

(e) H’s joint name accounts with his parents at the Bank of China be retained by H.

(f) All other bank accounts, chattels and pensions, shall be divided equally between the parties, with the chattels to be retained by W, and H’s 50% interest to be set off from the net proceeds of sale from the car parks. Neither party shall be entitled to make any claims against the other in respect of those bank accounts, chattels and pensions.

(g) H to provide W financial support for 12 months in the sum of HK$13,333 a month, to be capitalised into a lump sum of HK$160,000.

Issues in Dispute

50.  Given the parties’ respective cases and their position, the issues which call for this Court’s finding before going further to determine ancillary reliefs can be summarised as follows :-

(a) Apart from being one of the registered legal co-owner of the landed properties (that is, the FMH and the 2 car parks) and also one of the joint name account holder with H at the DBS Bank, what are W’s beneficial interests therein[12];

(b) The purpose of payments made through bank transfers by W from her HSBC 980 account to H’s HSBC HK account since 2009 so alleged by W or since 2012 as shown by W’s bank records ?

(c) Whether the funds withdrawn by H from the joint name accounts with DBS Bank should be “add back” to the matrimonial pot or, without the “add back” being granted, should there be a departure from equal division to W’s favour when applying the “sharing” principle for determining ancillary reliefs suggested by W ? and

(d) Whether there was any material non-disclosure by H of his finances to the extent that adverse inference need to be drawn against him ?

Discussion

Issue (a)

51.  It has been firmly established that a party seeking to establish a common intention that the beneficial ownership in a property differs from the legal ownership has a heavy burden to discharge.

52.  In the case of Lo Kau Kun v Cheung Yuk Yun (unreported) HCA No.152 of 2013, date of judgment 24 February 2015, DHCJ Sakhrani (as he then was), citing Stack v Dowden [2007] 2 AC 432, held :-

“9. In Stack v Dowden [2007] 2 AC 432 it was held (Lord Neuberger dissenting) that where a domestic property was conveyed into the joint names of cohabitants without any declaration of trust there was a prima facie case that both the legal and beneficial interest in the property were joint and equal. The onus of proof lay upon any party seeking to establish that equity should not follow the law. Such a party had to prove that the parties had held a common intention that their beneficial interests be different from their legal interests, and in what way. In order to discern the parties’ common intention the court should look at the parties’ whole course of conduct in relation to the property. It was also held that that the law had moved on from the presumption of resulting trust and many more factors other than the parties’ respective financial contributions might be relevant to divining their true intentions. When all relevant factors had been taken into account, cases in which the joint legal owners were to be taken to have intended that their beneficial interests should be different from their legal interests would be very unusual.

10. I would also refer to what Lord Walker said at paragraph 33 in Stack v Dowden (supra):

“In the ordinary domestic case where there are joint legal owners there will be a heavy burden in establishing to the court’s satisfaction that an intention to keep a sort of balance-sheet of contributions actually existed, or should be inferred, or imputed to the parties. The presumption will be that equity follows the law……..”

and also to what Baroness Hale said at paragraph 68 :

“The burden will therefore be on the person seeking to show that the parties did intend their beneficial interests to be different from their legal interests, and in what way. This is not a task to be lightly embarked upon……”

53.  In the later case of Lung Ka Kuen v Chu Chun Yuk& Anr (unreported) HCA No.2832 of 2015, date of judgment 24 October 2016, DHCJ Marlene Ng (as she then was) held :

“21. The onus of proof lay on the party seeking to show that equity should not follow the law….. and to establish (a) the joint owners intend their beneficial interests to be different from their legal interests and (b) in what way [see Stack v Dowden [2007] 2 AC 432, 439 (per Lord Hope) and 458 (per Baroness Hale) and Mo Ying at p 996]. The burden is a heavy one “because it will almost always have been a conscious decision to put the property into joint names, and committing oneself to spend large sums of money on a place to live is not normally done by accident or without giving it thought” [see Chen Tak Yee & ors v Chan Moon Shing & anor HCA954/2010 (unreported , 7 May 2015) para 16).”

54.  More has to be said that the emphasis placed by the Courts nowadays has moved away from simply focusing on financial contributions to a more holistic approach by looking at the parties’ entire course of conduct in relation to the property in question.

55.  In the case of Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985, date of judgment 15 April 2015, Cheung JA held :

“5.12 At [31], Lord Walker [in Stack v Dowden] further stated that :

In a case about beneficial ownership of a matrimonial or quasi-matrimonial home (where registered in the names of one or two legal owners) the resulting trust should not in my opinion operate as a legal presumption, although it may (in an updated form which takes account of all significant contributions, direct or indirect, in cash or in kind) happen to be reflected in the parties’ common intention.

5.13 Baroness Hale in Stack at [60] stated :

……The law has indeed moved on in response to changing social and economic conditions. The search is to ascertain the parties’ shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it.

5.14 Specifically Baroness Hale in Stack stated more factors than financial contributions may be relevant to divining the parties’ true intention :

[69] In law, ‘context is everything’ and the domestic context is very different from the commercial world. Each case will turn on its own facts. Many more factors than financial contributions may be relevant to divining the parties’ true intentions. These include: any advice or discussions at the time of the transfer which cast light upon their intentions then; the reasons why the home was acquired in their joint names; the reasons why (if it be the case) the survivor was authorised to give a receipt for the capital moneys; the purpose for which the home was acquired; the nature of the parties’ relationship; whether they had children for whom they both had responsibility to provide a home; how the purchase was financed, both initially and subsequently; how the parties arranged their finances, whether separately or together or a bit of both; how they discharged the ongoings on the property and their own household expenses. When a couple are joint owners of the home and jointly liable for the mortgage, the inference to be drawn from who pays for what may be very different from the inference to be drawn when only one is owner of the home. The arithmetical calculation of how much was paid by each is also likely to be less important. It will be easier to draw the inference that they intended that each should contribute as much to the household as they reasonably could and that they would share the eventual benefit or burden equally. The parties’ individual characters and personalities may also be a factor in deciding where their true intentions lay. In the cohabitation context, mercenary considerations may be more to the fore than they would be in marriage, but it should not be assumed that they always take pride of place over natural love and affection.

[70] This is not, of course, an exhaustive list. There may also be reason to conclude that, whatever the parties’ intentions at the outset, these have now changed. An example might be where one party has financed (or constructed himself) an extension or substantial improvement to the property, so that what they have now is significantly different from what they had then.

5.15……..

5.16 In Jones, Lord Walker and Baroness Hale in their joint judgment further elaborated on the applicable principles on disputes in respect of family homes in joint names and family homes in sole name. In respect of joint name homes, the principles are as follows. For ease of reading, I have arranged each of the five principles in separate paragraphs :

[51] In summary, therefore, the following are the principles applicable in a case such as this, where a family home is bought in the joint names of a cohabitating couple who are both responsible for any mortgage, but without any express declaration of their beneficial interests.

(1) The starting point is that equity follows the law and they are joint tenants both in law and in equity.

(2) That presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home, or (b) that they later formed the common intention that their respective shares would change.

(3) Their common intention is to be deduced objectively from their conduct: “the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party’s words or conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party”: Lord Diplock in Gissing v Gissing [1971] AC 886,906.

Examples of the sort of evidence which might be relevant to drawing such inferences are given in Stack v Dowden [2007] 2 AC 432, para 69.

(4) In those cases where it is clear either (a) that the parties did not intend joint tenancy at the outset, or (b) had changed their original intention, but it is not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, ‘the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property’: Chadwick LJ in Oxley v Hiscock [2005] Fam 211, para 69. In our judgment, ‘the whole course of dealing…. In relation to the property’ should be given a broad meaning, enabling a similar range of factors to be taken into account as may be relevant to ascertaining the parties’ actual intentions.

(5) Each case will turn on its own facts. Financial contributions are relevant but there are many other factors which may enable the court to decide what shares were either intended (as in case (3)) or fair (as in case (4)).”

56.  It then comes along the case of Erwiana Sulistyaningsih v Tsui Yun BunBarry [2018] 1 HKLRD 487, date of judgment 28 December 2017, Mr Recorder Steward Wong SC held :

“28. First, on the question of the beneficial ownership of the Property, it is a matter of the parties’ …shared intention, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it. But the starting point is that where there is joint legal ownership there is joint beneficial ownership, and the burden is on the party asserting otherwise…. to show otherwise. See Stack v Dowden [2007] 2 AC 432 at [56], [58], [60] and [68], per Baroness Hale of Richmond (with whom Lord Hoffmann, Lord Hope of Craighead and Lord Walker of Gestingthorpe agreed). See also Lord Hope at [4]-[5] and Lord Walker at [14] and [33]. Stack v Dowden has been followed in Hong Kong: see for example Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985.

29. In other words, unless there is evidence on which the Court makes a finding of contrary intention (actual, inferred or imputed), and the burden is high, equity follows the law and beneficial ownership follows the legal ownership (Stack v Dowden at [54], per Baroness Hale). As stated in Snell’s Equity (33^rd ed, 2015) at para 24-049:-

‘Where an express trust has not been declared, then the starting point is that equity follows the law, and the beneficial ownership of the property is held in the same way as the registered legal estate in the property. If the property is registered in the name of one party only, then they will be presumed to be the sole beneficial owner. If it is registered jointly in the names of both parties, then it is presumed that they hold for themselves as beneficial joint tenants. This will be the case even where one party has made no financial contribution at all to purchasing the property.’”

57.  With these authorities, I will first deal with the 3 landed properties. For the FMH and the 2 car parks purchased under joint names of the parties, H had not produced any single strand of evidence showing any kind of trust had ever existed upon himself or any common intention to the contrary that W’s beneficial interests do not follow her legal title. Given the legal principles set out in the cases and authorities cited above, I find as a fact that W, being one of the legal joint owners, she beneficially owned the FMH and the 2 car parks together with H.

58.  For the joint name accounts with DBS Bank, it is not sufficient for H to simply say at trial that W’s interests in the accounts being “in name” only or that each of the joint name accounts was allocated by him exclusively for a specific purpose which was well within W’s knowledge and without her involvement, to be sufficient for severance of W’s beneficial ownership from her legal title. The other submission that funds in each of the joint name accounts were ring-fenced without any mixing of funds is also self-serving.

59.  The joint name “127 account” which H said was designated by him for receiving his own salary payment and with his own savings in there, in my decision, could not displace W’s legal and beneficial interests as a joint account holder at common law. H could always, had he so wished, designate any of his other sole name bank account or even set up another sole name account at DBS Bank for receiving his own salary income thus keeping all his income and savings exclusively (emphasis added) to himself. My same decision applies to the other 2 joint name accounts, namely, the “033 account” and “409 account” at the DBS Bank.

60.  Given H is a highly educated and sophisticated person who had worked in the banking/finance industry for a number of years, this could hardly be something that he could not have thought about. In my decision, it is all probable than not that the manifested intention was to have no distinction or segregation of funds with W in any of the joint name accounts ever since they were opened. As rightly submitted by W’s Counsel, the joint name accounts with DBS Bank had been in place throughout the entire period of marriage. I find as a fact that both H and W are legal and beneficial owners of all the joint name accounts with the DBS Bank.

61.  The unity of legal and beneficial ownership at common law applies with no distinction as to what the jointly held assets in question actually was, be it chattels, landed properties or choses in action. W, as a joint name account holder of all the DBS Bank accounts throughout the years of their spousal relationship, in my judgment, it is more probable than not that their common or manifested intention was that at all times the moneys in the joint name accounts belong to H and W jointly rather than to any one of them exclusively.

62.  This finding is further supported by the undisputed evidence that either of them could have access to the funds in those accounts without the other’s notice, consent or signature. It just happened that W did not withdraw sums of moneys for her own use save for settling some of the FMH expenses by issuing cheques from the DBS joint name accounts.

63.  In my decision, H’s bare assertion at trial that “it is my money” and “there is no mixing of funds” simply could not stand as sufficient evidence to disintegrate W’s beneficial interests from her legal ownership. That said, I also find as a fact that ever since the setting up of the joint name accounts at the DBS Bank, W has legal and beneficial interests over the funds therein at all times irrespective of the source or origin of funds.

Issue (b)

64.  For the bank transfers made by W over the years since 2009 from her HSBC 988 account to H’s sole name HSBC HK account and the underlying reasons for her to do so, H had neither taken any issue in his narrative affirmation nor adduced any evidence in contention or rebuttal at trial on this topic. W was not even cross examined on any of the transfers that she had made over the years.

65.  H’s only contention, as I see it, was that W had never made any payments into the joint name accounts at DBS Bank; H himself had always kept his own savings in the DBS accounts separate and distinct from W’s payments into his HSBC HK account; and that “money does not go backand forth” between H’s bank accounts. At trial, H had once mentioned that he had kept a spreadsheet where W’s payments were recorded but such spreadsheet had not been produced anywhere within H’s documents or after such assertion was made by him.

66.  From reading H’s DBS consolidated bank statements, it can be seen that what had actually happened was that the mortgage repayments of the FMH were directly debited from the joint name “033 account” whilst W paid her share of the contribution towards the FMH into H’s sole name HSBC HK account. H would arrange inter bank account money transfers from the joint name “127 account” where his salary income was credited into the joint name “033 account” where mortgage repayment was debited.

67.  From reading H’s sole name HSBC HK account statements, he would withdraw funds from there (where there were funds transferred into it by W) to settle his personal expenses, including his credit card bills[13] which otherwise would have to be paid out from his salary income credited into the “127 account” with the DBS Bank by his employer.

68.  In my view, such pattern of mortgage repayment is akin to W reimbursed H for having first paid her share of the FMH from H’s salary income. Since H adduced no evidence, or had he produced the “spreadsheet” which he had once mentioned at trial, as to whether there was any shortfall of contribution by W over the years; nor was W able to show precisely the contribution by her for her share of the FMH, the only possible finding that could reasonably be made was that their respective monetary contributions over the FMH, including mortgage repayments, are more or less equal even if not exactly the same.

69.  Given careful consideration to all the circumstances, I accept W’s case and evidence, namely, that she had made transfers for the purpose of sharing the FMH as had been agreed with H, including mortgage payments, and that any surplus out of her share of the contributions made or their combined contribution was to be kept by H as their joint savings, more probable than not to be the truth.

70.  On such finding, W’s beneficial interests over the FMH was vested upon her and H jointly not only by reason of her legal title, by the fact that it was their former matrimonial home, there was also monetary contribution by W throughout their years of marriage since 2011, let alone the unchallenged evidence that she had also paid an extra sum of HK$285,000 from a portion of her insurance policy to the conveyancing lawyers who handled the purchase of the FMH.

71.  Since W entrusted H for keeping any surplus to be their joint savings, it does not matter where the joint savings were kept, whether it was kept in H’s sole name account or in the DBS joint name accounts, so long as they could be readily traced, identified and accounted for.

72.  Further, given my views that the arrangement was somewhat akin to W “reimbursing” H’s withdrawal from the DBS joint name accounts by making credit transfers into H’s sole name HSBC HK account (although there was no solid evidence as to matching the exact dollar and cent in and out H’s sole name HSBC HK account and the DBS joint name accounts), it is my finding that whatever funds in the DBS joint name accounts at any time would be a mixture of H’s and W’s joint savings.

Issue (c)

73.  In the month of December 2018, the total balance of the DBS joint name accounts was HK$1,185,007.32[14]. The total balance of H’s sole name HSBC HK account was HK$66,835.79[15]. Despite H had resigned in January 2019 with no salary income afterwards, his sole name HSBC HK account somehow was upgraded from SmartVantage[16] to Premier[17] starting from the following month of February 2019 with the same account number.

74.  In the month of June 2019, the statement balance of the DBS joint name accounts dropped to HK$44,001.14[18]. The statement balance of H’s sole name HSBC HK account somehow increased to HK$330,305.51[19].

75.  H did not dispute that a sum of around HK$1.10 million (or to be more precise it should be HK$1,141,006.18, that is HK$1,185,007.32 minus HK$44,001.14) was withdrawn by him from the DBS joint name accounts over a period of about 6 months (between December 2018 and June 2019). Reason given was that since he was unemployed in February 2019, he needed the money to pay for his living costs and related expenses and also to cover legal fees. Besides, in April 2019, he had also paid or reimbursed his father with GBP20,000 for covering his expenses whilst he was in HK and UK and also made a wedding gift of GBP15,000 to his sister.

76.  Whilst W did not seem to strongly disagree that H need to withdraw monies for his living costs and expenses when she was being cross examined by H’s Counsel, what she actually disagreed was that the withdrawals by H was plainly for his personal use which should not be made out of their joint savings. Further, spending a sum of around HK$1.10 million within a time span of about 6 months for living costs could hardly not to be “reckless”, “wanton” or “extravagant” spending when; in particular, H had resigned and stayed out of work without any income after February 2019 but still saw fit to pay out a total sum of GBP35,000 (approximately HK$350,000) to his father and sister.

77.  I will first deal with the sum of GBP20,000 given to H’s father in April 2019. The answer provided by H was that it was for paying back/reimbursing his father’s expenses spent upon him whilst he was living in UK and in HK. In my decision, such answer is hardly convincing and not accepted by this Court.

78.  First and foremost, there is no evidence by way of affirmation or otherwise, from his father that such sum given to him was for the alleged reason. The Court could not take H’s words, completely uncorroborated, at their face value to be the truth especially when H was faced with W’s case of reckless or wanton spending such sum of money. As a matter of fact, GBP20,000 (approximately HK$200,000) is not a small amount of money when compared with the total amount of HK$1.10 million allegedly had been wantonly squandered.

79.  Whilst the name of the payee appeared in the entries of the bank statements[20] generated by the bank’s computer to be the name of H’s father, the words “Mum and Dad” in manuscripts underneath the father’s name was written by H. The question thus follows is : “Why would H have to write those words in manuscripts ?”

80.  The only logical answer to this question is that H did it for a purpose, rather than to remind himself that the named payee printed in the bank statements is his father or to remind himself that the payments were made to his father so alleged by him. In my view, H hardly needs any reminder as there was one and only one payment made to his father at the material time. Why did H not simply write words such as “pay back” or “reimbursement” as he did for the next entry for his sister : “Sis wedding”. The only possible reason for writing “Mum and Dad”, as I see it, is litigation driven in order to match his case.

81.  Secondly, there is no evidence of any pressing need, such as having been demanded by the father for the “pay back/reimbursement”. H had already been unemployed for 2 months in April 2019 when the sum of GBP20,000 was given to his father, it is unlikely that his father would not know about his unemployment but still asked for repayment at the time. To be fair to H, it is actually not H’s case that his father had demanded repayment. It was upon his own initiative and probably filial piety to pay back his father as he thought that it was “a pretty good deal” in terms of money’s value. Given the sum of GBP20,000 (approximately HK$200,000) formed part of the HK$1.10 million, I find it more probable than not that such payment given to his father is also litigation driven. Having said, this sum would need to be added back to the matrimonial pot as it actually came from the joint savings of the parties.

82.  Thirdly, as rightly submitted by W’s Counsel[21], H tried to say the sum of GBP20,000 given to his father was for a period of 10 months for rent, utilities, food, car expenses, laundry and storage costs which he said was “a pretty good deal”, without noticing that it was actually for a period of 6 months only. That said, for a sum of GBP20,000 (approximately HK$200,000) for 6 months worked out to be around HK$33,333 a month which could hardly be “a pretty good deal”. As submitted by W’s Counsel, such inconsistent evidence of H is most alarming which I agree.

83.  Fourthly, I also agree with W’s Counsel’s that the amount of GBP20,000 for paying back items that had already been spent are all self-serving statements without any single strand of supporting evidence for the individual item of expenses.

84.  Given H’s dire financial situation at the time, I find the spending of GBP20,000 (approximately HK$200,000) to be unjustified if not being reckless and should be “added back” to the matrimonial pot.

85.  For the sum of GBP15,000 given to H’s sister, I have the following observations.

86.  Same as in the case of GBP20,000 given to the father, there is no evidence from H’s sister that the sum she received (as shown in H’s bank statement) was for her wedding which took place in June, which is 2 months after the transfer. The Court could not simply take H’s words at their face value to be sufficient evidence to counter W’s case against H for his reckless or wanton spending.

87.  Whilst accepting that there is no restriction as to what form of wedding gift that it should take and the value of it, and also that cash payment or gift coupon is not uncommon nowadays, there still remain a sense of proportionality whenever there was an issue as to the reasonableness in amount of such a gift.

88.  Given that there is no contention by W as to H’s sister wedding having taken place, a sum of GBP15,000 (approximately HK$150,000) as a wedding gift, in my decision, could be said to be extravagant in light of the dire financial situation of H at the time. I would, however, decide that GBP5,000 (approximately HK$50,000) to be a fair and reasonable amount in the circumstances.

89.  Thus, out of the GBP15,000 (approximately HK$150,000) given by H to his sister, there was a balance of GBP10,000 (approximately HK$100,000) which I decided that it was an unreasonable and extravagant spending and need to be added back to the family pot.

90.  Having considered the two sums of GBP20,000 and GBP15,000, totalling GBP35,000 (approximately HK$350,000) (taking exchange rate GBP1 to HK$10), the balance of the HK$1.10 million that had been withdrawn by H would become HK$750,000 (that is to say, HK$1,100,000 minus HK$350,000) which I will now consider below.

91.  H’s 1^st Form E was dated 14 December 2018[22]. He deposed to his monthly general expenses of HK$48,400 and personal expenses of HK$28,500, making a total of HK$76,900 a month.

92.  Applying H’s monthly expenses of HK$76,900 for 6 months from December 2018 to June 2019, the total amount of expenses would be HK$461,400 (that is, HK$76,900/month x 6 months). For legal costs spending, H deposed to having spent HK$100,000 in 2019 in his narrative affirmation[23] dated 14 September 2020. Adding up all these figures, H’s total spending (including legal fees) for the 6-month period from December 2018 to June 2019 would become HK$561,400 (that is, HK$461,400 + HK$100,000). Such sum is clearly incompatible with the sum of HK$1.10 million which he had unilaterally withdrawn from the joint name accounts with DBS Bank. The question which then follow was : “Where have thebalance moneys gone?”

93.  To succeed in her case of “add back”, W has to prove on balance of probabilities that H had recklessly depleted the family assets and thus potentially disadvantaged her within the ancillary proceedings[24].

94.  I have already found against H in the preceding paragraphs for his spending of GBP20,000 (approximately HK$200,000) given to his father and, out of the GBP15,000 (approximately HK$150,000) given to his sister as wedding gift, a sum of GBP10,000 (approximately HK$100,000) to be reckless, unreasonable or extravagant. I have also found H’s financial needs for the 6-month period, adopting his own calculation in his Form E and including legal costs spent, was HK$561,400. By off-setting all these figures from the sum of HK$1.10 million which H had withdrawn from the DBS bank accounts, there was a shortfall of HK$488,600 (that is, HK$1,100,000 minus HK$561,400 as to H’s financial needs and HK$50,000 as to wedding gift to his sister) unaccounted for.

95.  I noted that there might be some other related expenses which had been spent, such as air ticket back and forth United Kingdom and Hong Kong, which had not been specifically counted in the ledger. However, I also noticed that H in his latest (2^nd Form E) dated 13 January 2020[25] had included a tax payment of HK$10,000 a month (emphasis added) under his Personal Expenses (Part 4.2)[26]. At Part 1.4.1, he deposed to staying unemployed since 18 January 2019, which is just over a year when he signed his 2^nd Form E in January 2020. Hence, such item of tax payment obviously would not have been incurred. I decided that such item of tax payment of HK$10,000 a month, having been counted as part of the overall monthly expenses of HK$76,900, could and would be sufficient to offset those other related expenses such as air ticket which H had spent but had not specifically counted.

96.  That said, there was a shortfall of HK$488,600 (that is, HK$1,100,000 minus HK$561,400 and minus HK$50,000) gone “missing” or unexplained to the satisfaction of the Court. Thus, it is my decision that this sum would need to be added back to H’s ledger to achieve equality and fairness. Such course of “adding-back” does not necessarily have to be the Norris v Norris[27] type for the simple reason that every single dollar and cent in the joint name accounts, as I have found above, was a mixture of H’s and W’s joint savings[28].

97.  On this issue (c), the total sum to be “added back” would therefore be HK$488,600.

Issue (d)

98.  This issue touches upon the two UK companies, namely, “X10” and “Axxx Property Limited”[29].

99.  Neither of these two companies were disclosed in H’s latest (2^nd) Form E dated 13 January 2020[30]. Company “X10” was incorporated on 9 March 2019[31] and H was the sole director and shareholder. He was also the person with significant control (“PSC”)[32]. H ceased to be the PSC on 10 April 2019[33].

100.  H had not been able to come up with any legitimate reasons for the non-disclosure. H’s Counsel tried to say that it is a red herring for W to make such submission of non-disclosure against H when she had already agreed not to pursue upon such UK company.

101.  In my decision, a party’s duty of full and frank disclosure is obligatory and continuing throughout the process of litigation. It does not depend or hinge upon whether the information or assets that need to be disclosed would or would not be pursued by the opponent. It is rather in the converse that once a party has fulfilled his or her duty of full and frank disclosure, it is for the opponent to decide whether to pursue further on the information or assets that had been disclosed.

102.  H’s explanation, or more aptly to say, his excuse, is not accepted. H should not be allowed to take advantage of W’s position as a “reason” for not fulfilling his obligatory duty of full and frank disclosure.

103.  I find H had failed in disclosure of his involvement in the UK Company “X10”. It matters not how brief his involvement was. Adverse inference would readily be drawn against him.

104.  Far more importantly, I noticed that H might have tampered with the Notice of Ceasing to be a PSC of “X10” which he produced a copy of it as Attachment 5 in his Answer[34] (filed with his Statement of Truth). Since such Notice was a public document, such document was also obtained by W and she produced it as exhibit “CWGH3-20” in her 3^rd Affirmation[35].

105.  Upon scrutiny of H’s Attachment 5 and W’s exhibit, I am prepared to say that they are one and the same document but surprisingly with sharp difference. The difference being that the portion “Register entry date of 12/6/2019” underneath H’s cessation details appeared in W’s exhibit but does not happen to be there in H’s Attachment. There is about an inch blank spacing in H’s exhibit.

106.  On this matter, I am minded to say that it is more probable than not that the missing portion in H’s Attachment was the result of covering up those words before making the photocopy and then produced it to the Court. This is most unsatisfactory and underhanded litigation conduct which would amount to misleading the Court and possible criminal conduct.

107.  Disappointedly, neither H nor his Counsel saw fit or bothered to offer any explanation for such discrepancies in H’s Attachment even after this was revealed by W’s Counsel.

108.  With the above findings of facts, I will now start to consider the ancillary reliefs in this case.

The Law on Ancillary Relief

109.  The jurisdiction of the Court in granting financial reliefs is governed by section 4 of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”) which provides:

“4. Financial provision for party to a marriage in cases of divorce, etc.

(1) On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may, subject to the provisions of section 25(1), make any one or more of the following orders, that is to say-

(a) an order that either party to the marriage shall make to the other such periodical payments and for such term as may be specified in the order;

(b) an order that either party to the marriage shall secure to the other to the satisfaction of the court, such periodical payments and for such term as may be so specified;

(c) an order that either party to the marriage shall pay to the other such lump sum or sums as may be so specified.

(2) Without prejudice to the generality of subsection (1)(c), an order under this section that a party to a marriage shall pay a lump sum to the other party-

(a) may be made for the purpose of enabling that other party to meet any liabilities or expenses reasonably incurred by him or her in maintaining himself or herself or any child of the family before making an application for an order under this section;

(b) may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court.“

110.  The governing principles in relation to the distribution of the family assets in dissolution of marriage are set out in section 7 of the Matrimonial Proceedings and Property Ordinance, Cap. 192, (“section 7 factors”) which states as follows:

(1) It shall be the duty of the court in deciding whether to exercise its powers under section 4, 6 or 6A in relation to a party to the marriage and, if so, in what manner, to have regard to the conduct of the parties and all the circumstances of the case including the following matters, that is to say-

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage 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 each 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 benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

111.  In the leading case of LKW v DD[36] the Court of Final Appeal sets out 4 principles as to how section 7 shall be approached, which are stated as follows:

a. The first is that the implicit objective of a section 7 exercise is to arrive at a distribution of assets which is fair as between the parties[37];

b. The second is that the concept of fairness requires the refutation of any gender or role discrimination[38];

c. The third principle is that, with a view to eliminating insidious discrimination and promoting fairness, judges should check their tentative views on distribution against a “yardstick of equal division” which should be departed from only for good, articulated reasons[39];

d. The fourth principle is that the court should not countenance any attempt to engage in costly and often futile retrospective investigations of the failed marriage which tend to deplete the parties’ (and the courts’) resources and to increase antagonism and discourage settlement[40].

112.  The Court of Final Appeal went further to lay down 5 steps as to how the Court should do when exercising section 7 as follows:

a. The first step in the exercise is to ascertain the financial resources of each of the parties calculated as at the date of the hearing[41];

b. The next step is for the court to assess the parties’ financial needs[42];

c. If surplus assets would remain after the parties’ needs have been catered for, the next step in the exercise should generally be for the court to apply the sharing principle to the parties’ total assets, leaving the “needs” question previously considered to be dealt with under that principle[43];

d. The fourth step therefore involves considering whether good reasons exist for departing from the principle of equal division[44];

e. When deciding the outcome, the court is not bound to depart from equality in the division of the parties’ assets even if one or more of the factors considered are engaged on the facts. The weight to be given to such considerations is a matter of discretion for the court[45]

Step 1 : Identification of Assets

113.  At trial, there was an Asset Schedule produced by W and marked as Exhibit “P1” which sets out the inventories of assets as per parties’ latest financial statements which also contained remarks on some of the disputed items and cross referenced to an earlier Agreed Asset Schedule dated 25 September 2020[46].

114.  Taking into account the Court’s findings in respect of the issues in dispute by the parties and the inventories as per the respective Asset Schedules, the following assets and values have been identified :-

Description		W’s portfolio	H’s portfolio
1.	The FMH agreed at HK$9,505,000	HK$4,752,500 (50 %)	HK$4,752,500 (50 %)
2.	Carpark No.51 agreed at HK$2,310,000	HK$1,155,000 (50 %)	HK$1,155.000 (50 %)
3.	Carpark No.54 agreed at HK$2,310,000	HK$1,155,000 (50 %)	HK$1,155,000 (50 %)
4.	Add Back GBP20,000 given to H’s father[47]	/	HK$200,000 (that is GBP20,000)
5.	Add Back GBP10,000 over paid to H’s sister as wedding gift[48]	/	HK$100,000 (that is GBP10,000)
6.	Add Back a sum of HK$488,600 withdrawn by H[49]	/	HK$488,600
7.	BMW vehicle agreed at HK$22,000	HK$110,000 (50 %)	HK$110,000 (50 %)
8.	W’s HSBC 980 account	HK$7,053	/
9.	W’s HSBC account	HK$57 (HK$21 + HK$36)	/
10.	H’s HSBC HK account	/	HK$325 (HK$241 + HK$35 + HK$23 + HK$26)
11.	H’s HSBC UK account	/	HK$1,392.60 (GBP 141)
12.	W’s jewelleries, handbags and valuables[50]	HK$287,419	/
13.	H’s watches and valuables[51]	/	HK$126,260
14.	W’s Insurance Policies	HK$14,011	/
15.	W’s MPF Super Trust Plus	HK$410,195	/
16.	H’s MPF in AIA	/	HK$760,449
Sub-total :		HK$7,891,235	HK$8,849,526

Less liabilities		W’s share	H’s share
1.	FMH Mortgage of HK$1,921,904.70	HK$960,952 (50 %)	HK$960,952 (50 %)
2.	Other home loan of HK$1,765,648.80	HK$882,824 (50 %)	HK$882,824 (50 %)
3.	HSBC personal loan xxx-xxxxxx-166	HK$175,156.20	/
4.	HSBC personal loan xxx-xxxxxx-167	HK$51,245	/
5.	American Express Platinum card xxx-xxxxxx-91008	HK$289,309	/
6.	HSBC Visa Platinum card xxx-xxxx-xxxx-9453	HK$181,178	/
7.	Standard Chartered card 5523-xxxx-xxxx-2530	/	HK$4,003
8.	HSBC Premier card 5185-xxxx-xxxx-4143	/	HK$256
9.	Loans from parents	(see paragraph 118 below)	/
	Sub-total :	HK$2,540,664 + Loans from parents	HK$1,848,035

Net Assets Value	W’s portfolio	H’s portfolio
Net total:	HK$7,891,235 – HK$2,540,664 = HK$5,350,571	HK$7,001,491

115.  It is W’s case that she had borrowed loans from her parents to cover her financial needs since these divorce proceedings started in 2018. She produced under Attachment 9 in her Answers to H’s Questionnaire a Chinese handwritten confirmation and agreement dated 28 November 2018[52] signed by herself and her parents as evidence of the loan agreement with her parents. She also produced some bank deposit slips, bank transfer slips, cheque copies issued by her parents[53] to her as documentary evidence of loan having been received by her from her parents.

116.  W in her 3^rd Affirmation deposed to a total sum of HK$2,574,266 having been borrowed from her parents between November 2018 and August 2020[54]. However, she had not arranged her parents to testify in Court and cross examined on such issue. Going through the dates and amounts of the loan she received from her parents, I am not entirely convinced that all those money W received from her parents were used for her basic financial needs although some of them could have been be the case. An example of meeting W expenses would be the 2 separate sums of HK$18,540 and HK$15,726 both of which were payable to W’s lawyers Withers[55].

117.  There are other substantial sums received from her parents within a month (emphasis added) which could hardly be accepted as loans made to meet W’s living costs from any perspective given the fact that W, in her latest Form E dated 30 January 2020, she deposed to her monthly expenses were only in the sum of HK$80,149 a month[56]. Example of those substantial amount of monthly transfers are :-

Month/Year	Amount received by W	Total
January 2019	HK$110,000 HK$38,000	HK$148,000
July 2019	HK$50,000 HK$20,000 HK$40,000	HK$110,000
December 2019	HK$180,000	HK$180,000
January 2020	HK$170,000	HK$170,000
February 2020	HK$70,000 HK$226,000	HK$296,000
April 2020	HK$170,000	HK$170,000
May 2020	HK$238,000	HK$238,000
June 2020	HK$157,000 HK$150,000	HK$307,000
July 2020	HK$215,000	HK$215,000
August 2020	HK$258,000	HK$258,000

Total (10 months*):

HK$2,092,000

118.  Having said, on the issue of parents’ loan to assist W in her expenses which need to be attributed as liabilities under W’s ledger, the following computation would be adopted :-

(a) Taking off HK$2,092,000[57] from the total sum of parents’ loan in the sum of HK$2,574,266[58] to arrive at the sum of HK$482,266; and

(b) Adding W’s monthly expenses of HK$80,149 a month for the 8 (out of 10) months*, that is, HK$80,149 x 8 = HK$641,192. The months of January 2019 and July 2019 would be excluded since W was only made redundant in September 2019.

119.  Thus, the total amount of parents’ loan accepted by the Court as liabilities under W’s ledger would therefore be HK$1,123,458 (that is, HK$482,266 + HK$641,192).

120.  The lump sum payment of HK$160,000 claimed by W against H for financially sustaining her during her unemployment would not be accepted. Given the fact that W, on her own case, agreed that she was young and has proven earning capacity, I believe it was purely because of the worldwide economic downturn caused by the covid-19 pandemic that had driven her out of employment, such factor no doubt would also affect H. There appeared to be no basis for such item of claim.

121.  Hence, the total liabilities under W’s ledger would be HK$3,664,122 (that is, HK$2,540,664[59] + HK$1,123,458[60]), or say, round up to HK$3,664,000. The net assets value of W’s portfolio would then be HK$4,227,113 (that is, HK$7,891,235[61] – HK$2,540,664[62] – HK$1,123,458[63]); or say, round up to HK$4,227,000.

122.  As for H’s small house concessionary right in Kai Kuk Sha Ha village, no account would be taken of it since W was not seeking any right in it to be determined in her ancillary reliefs save and except that H had failed in his disclosure of such right whereupon adverse inference should be drawn against H.

The adjudged pot of family assets :

123.  With all the above findings, the adjudged portfolios are :-

(a) W’s portfolio: HK$4,227,113[64] (or round up to HK$4,227,000);

(b) H’s portfolio: HK$7,001,491[65] (or round up to HK$7,000,000)

124.  The total pot of family assets is therefore HK$11,227,000 (that is, HK$4,227,000 + HK$7,000,000).

Step 2 : Assessing the parties’ financial needs

125.  The next step is to assess the parties’ financial needs. There is no question that both parties are young and have enough earning capacity to cater for their own needs. Both parties sensibly looked forward to a clean break arrangement.

Income, earning capacity, property and other financial resources

126.  At trial, H was aged 37 working in the banking/finance industry for a couple of years. H once resigned in January 2019 with the intent of returning to UK to join his parents there. In March 2019, H secured a job in UK but he had to quit in April 2019 for having to fly back to attend to these divorce proceedings. In July 2020, he managed to secure a job in Hong Kong. H’s earning capacity is not in issue. There is no reported physical or mental disability which may affect his earning capacity in the foreseeable future.

127.  At trial, W was aged 36 who had been made redundant in September 2019 and was unemployed at trial. Prior to being made redundant, W worked as a Manager with a monthly income of HK$48,000. W’s earning capacity is not in issue. There is no reported physical or mental disability which may affect her earning capacity in the foreseeable future.

Financial needs, obligations and responsibilities etc

128.  Both parties are capable to utilise their respective earning capacities to look after their own financial needs.

Standard of living before breakdown of marriage

129.  Both parties deposed in their respective Form Es that during the marriage, they took long haul and short haul trips in a year and stayed at 4 to 5 stars hotel.

130.  As noted from parties’ evidence, and confirmed by the single joint expert report, both of them had some valuable items such as watches, handbags and jewelleries.

131.  The standard of living before breakdown of marriage, in my view, could be said to be moderately good.

Age of each party and duration of marriage

132.  At present, H is aged 38. W is aged 37.

133.  On the date of the Decree Nisi on 4 December 2019, the marriage had lasted for 8 years. This is a medium long marriage.

Physical or Mental disability of either of the parties

134.  There was no reported physical or mental disability on the part of either parties in their Form Es.

Contribution made by each parties to the welfare of the family

135.  Both of them have been working full time since their marriage. There is no child of the family. Their respective contribution to the welfare of the family could be said to be more or less the same.

Step 3 : Applying the sharing principle

136.  Both parties agreed that this is a “sharing” case and had agreed, in principle, to a 50/50 division of the pot of family assets but subject to the issue of whether there should be any “add-back” of funds to the extent of about HK$1.10 million unilaterally withdrawn by H without the knowledge and consent of W.

137.  I decided that the sharing principle be applied in this case.

Step 4 : Consideration of any good reasons for departing from equal division

138.  W’s Counsel submitted departure from equal division to be an option to reflect H’s unilateral withdrawal of HK$1.10 million from the pot of family assets. The appropriate percentage for departure being 10% in favour of W.

139.  Since H’s unilateral withdrawal of the HK$1.10 million had been categorically dealt with at the step of identification of the pot of family assets in this Judgment, which ended up with part of the HK$1.10 million withdrawn had to be “added back” to the ledger, any departure at this step would not be correct for otherwise, there would be double counting.

140.  I decided that there should be no departure from equal division.

Step 5 : Deciding the Outcome

141.  Applying 50/50 equal division between the parties, each party would be receiving HK$5,613,500 (HK$11,227,000 x ½ = HK$5,613,500).

142.  W’s portfolio was identified at HK$4,227,000[66]. She should therefore be given the sum of HK$1,386,500 (that is, HK$5,613,500 – HK$4,227,000) out of H’s portfolio of HK$7,000,000 to achieve equalisation.

143.  The bulk of the family assets consists of landed properties, namely, the FMH and 2 carparks, and that their respective values were agreed around 9 months ago for the purposes of this trial. Given further that property prices in Hong Kong could fluctuate significantly within short period of time, it is my decision that should there be any surplus of sale proceeds over the 3 landed properties after the equalisation as per this Judgment, they should be apportioned between the parties equally in line with the equal division decision of this Court.

144.  Should the parties mind to “buy out” the other party’s share or interest in any one or all of the landed properties, he or she would have the first priority and option to make the offer to buy at current market value within 30 days of this Judgment; and in the absence of any such offer, there be an Order for sale of any or all of the landed properties, namely, the FMH and the 2 carparks, in the open market after 30 days.

Costs

145.  Taking into account the parties’ respective Open Proposals and the decision of this Court, my overall impression is that W is the winning party since she had been successful on the key issue of “add back” although not to the full extent of HK$1.10 million. It is fair and reasonable for her to be awarded the costs of this ancillary reliefs trial. The question then arises is whether such costs should be awarded on an indemnity basis as W’s Counsel repeatedly urged for in his Final Submissions.

146.  Given careful consideration, I accepted W’s Counsel’s submission that indemnity costs were warranted and justified.

147.  First, in spite of the fact that H was legally represented throughout these proceedings, he had failed in his duty of full and frank disclosure by not disclosing his involvement in the two UK companies until this was revealed by W[67]. Such litigation conduct should not be condoned.

148.  Secondly, the obvious and apparent discrepancies of H’s documentary evidence produced by him as Attachment 5 when compared with W’s exhibit “CWGH3-20” badly called for immediate and full explanation which had not been forthcoming[68]. At the risk of repetition, such litigation conduct is most underhanded and blatantly flies in the face of the Court which must be deterred by costs sanction.

149.  I decided that costs should be awarded against H on an indemnity basis.

Orders

150.  I now make the following Orders :-

(1) Subject to any first priority and offer to purchase by either party to the other party in respect of the FMH and/or any one or both of the 2 carparks within 30 days from the date of this Judgment, there be an Order for sale of the FMH and/or any one or both of the 2 carparks in the open market at the current market value;

(2) W be paid the sum of HK$1,386,500 by H for equalisation of the adjudged pot of family assets;

(3) Any surplus in excess of the adjudged pot of family assets of HK$11,227,000 after equalisation be equally split between the parties;

(4) Upon compliance with paragraphs (1) to (3) above, all joint name bank accounts of the parties be cancelled forthwith and both parties’ ancillary reliefs be dismissed;

(5) H do pay to W costs of the ancillary reliefs trial, including all costs reserved, to be taxed if not agreed on an indemnity basis; and

(6) There be liberty to apply for directions on implementation of this Judgment.

151.  I also grant Certificate for Counsel.

152.  This is a costs order nisi which will become absolute if no application to vary the same is made within 14 days from the date of this Judgment.

153.  Last but not least, I wish to thank both parties’ Counsel for their valuable assistance to the Court.

Mr Jeffrey Li instructed by Messrs. Withers, Solicitors for the Petitioner

Mr Sunny Chan instructed by Messrs. K.B. Chau & Co., Solicitors for the Respondent