IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 231 OF 2004
Before: Deputy High Court Judge Wright in Chambers
Date of Hearing: 1 November 2006
Date of Judgment: 1 November 2006
J U D G M E N T
1. In this matter there are four summonses before me, one of the plaintiff and three of the defendant. That of the plaintiff seeksthat payments made out of assets subject to a Mareva injunction be varied, in an unspecified manner, or dispensed with whilst oneof the summonses of the defendant seeks that the Mareva injunction be discharged. The remaining two summonses of the defendant relateto the payment to the Director of Legal Aid, out of the affected assets, of costs which the defendant was ordered to pay and to discovery.
2. After discussions between counsel it has been agreed that the two summonses relating to the discharge or variation of the Marevainjection be adjourned. It is plainly necessary for an updated assessment of the plaintiff’s medical state to be available shouldthose summons proceed. However, for the reasons which I indicated clearly earlier today, it is to be hoped that further proceedings,with the inevitable result of diminution of the assets subject to the injunction which would only be to the detriment of both parties,will prove to be unnecessary.
3. The order that I make in respect of those two summonses is that they be adjourned to 2 February 2007 at 10.00. Costs are reserved.
4. In respect of the defendant’s summons dated 30 November 2005 relating to discovery, I have heard argument today but, after discussionswith counsel, will only deliver my ruling on 1 December 2006 at 09.30 and then only if it be necessary to do so. Attendance of counselis dispensed with.
5. That leaves only the defendant’s costs summons. This summons, dated 3 January 2006, seeks leave for costs in the amount of $360,000.00to be paid from moneys which are subject to the Mareva injunction. The costs are the party and party costs payable by the defendantto the Director of Legal Aid as taxed on 13 December 2005 and which relate to the Order 14 proceedings instituted by the plaintiff.
6. In his affirmation of 11 October 2006 the plaintiff’s representative accepts that this sum should be paid by the defendant tothe Director of Legal Aid. However he indicated he does not “agree” that the money should be paid from the funds subject tothe Mareva injunction
7. On another topic, that of ancillary relief in the divorce proceedings, the plaintiff’s representative says
The defendant has stated on more than one occasion in affirmations that he is not possessed of any assets, other than an insurancepolicy, which are not subject to the Mareva injunction.
8. No sensible suggestion has been put forward as to how, other than by way of asserting the fact in an affirmation, the defendantis expected to “prove” the non-existence of assets – even if there were any onus on him to do so.
9. Throughout the proceedings, including those relating to the Mareva injunction, the plaintiff has not pointed to any other assetswhich she is able to assert were the property of the defendant. At best there appears the veiled comment in her first affirmationthat the defendant was secretive about his assets together with a reference to the IMF Trust: it is plain that the entire capitalof the IMF Trust was distributed to the plaintiff and the defendant. There were passing references to the wealth of the defendant’slate father: there is not so much as an assertion, let alone evidence, that the defendant was to benefit in some further way fromhis father’s estate.
10. The overwhelming probabilities are that in the ancillary relief proceedings in the Family Court some portion of the assets subjectto the Mareva injunction will be ordered to be paid to the defendant. I will deal with that in more detail in due course if it provenecessary. However, simple commonsense dictates that such amount will be in excess of the amount due to the Director of Legal Aid.
11. It is plainly in the plaintiff’s own interests that the costs be paid so soon as possible as this will then allow the releaseto her of any security held by the Director.
12. There will be an order in terms of paragraph 1, save that the amount be $360,500.00. The plaintiff is to pay the defendant’scosts as taxed or agreed.
Mr Dennis Law, instructed by Next Friend, Official Solicitors, for the Plaintiff
Ms June Wee, instructed by Messrs Sit, Fung, Kwong & Shum, for the Defendant