WONG ON LIN v. WONG LEE YUK YIN

IN THE COURT OF APPEAL

1995, No. 142
(Civil)

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J U D G M E N T

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Nazareth, V.-P.:

1. This is an appeal by Wong On-lin (the husband) who was the respondent below against the order made by His Honour Judge Surman on 25th January 1995 that the husband transfer to Wong Lee Yuk-yin (the wife) his share of the matrimonial home which they owned jointly.

2. The facts can conveniently be taken from p.1 of the judgment:

"The Parties were married in Hong Kong in May 1984. Their Marriage was dissolved in October 1993, after a contested hearing, when the Petitioner (Wife) was granted a Decree Nisi on the ground that the Marriage had irretrievably broken down caused by the Respondent's (Husband) unreasonable behaviour. This Decree has not yet been made Absolute. The Wife is now aged 28 and the Husband is 44. There are two Children of the Family: two girls ages 10 & 7, both of whom are in the formal custody of their Mother.

A vital and important allegation made by the Wife against the Husband in her Petition concerned an incident when the Husband threw Sulphuric Acid at his Wife's face causing her very serious injuries. The Husband was convicted of Assault in the High Court in May 1992 and sentenced to 13 years imprisonment. An Appeal by the Husband against this Sentence [was] dismissed. ...

In her Divorce Petition, augmented by a further Application, the Wife asked for, inter alia, a Lump Sum for the support of herself and the Children and for the transfer of the Matrimonial Home from the Joint Names of the Parties into the sole name of the Wife. The Husband has made no Application for ancillary relief.

The Wife [was at the time of the hearing] living in the Matrimonial Home, which is at Flat C2 (26/F) Rhine Court, Bonham Road, Hong Kong. That Property [it was apparently accepted at the time of the hearing] is valued at 1.9 Million HK$. This Property ... is owned jointly by the Wife & Husband. Not surprisingly the Property holds bad memories for her. It is also unsuitably located in relation to the Children's Schools."

3. In coming to his decision the judge properly reminded himself of the necessity to have regard to s.7 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. He then continued:

"I have therefore taken particular note of the following:

(a) The Income, earning capacities and other resources of the Parties.

The Wife, through her terrible injuries has little or no sensible earning capacity. This apart from the fact that she has the responsibility of looking after the Children. The Husband of course has no earning capacity either. The principal resource of each Party is their share of the Matrimonial Home.

(b) The Financial Needs etc. of the Parties.

The Wife has significant needs for herself and the Children. She has to have a Roof over her head and for what remains of the Family. She has obligations re the Children and their support. They are a heavy and continuing responsibility for her in the years to come.

(c) The Ages of the Parties & the duration of the Marriage.

The Wife is now age 28. The present marriage lasted 9 years. Her prospects of remarriage must be minimal.

(d) Physical & Mental Disabilities of the Parties.

As already stated the Wife now has a significant physical disability.

(e) Contributions made by the separate Parties to the welfare of the Family.

Prior to the birth of the Children the Wife had made a financial contribution (probably not as high as the Husband's), but after each of the two Children arrived her contribution will have been in the form of caring and looking after them and the upkeep of the Matrimonial Home.

Conclusions

In the preamble to Section 7 (MPPO) I must also have regard to the conduct of the Parties and the overall circumstances of the Case. In my view the Husband's conduct in assaulting the Wife in such a way that she has been seriously disfigured was of such a gross nature that it would be entirely inappropriate for me not to take it into account.

The Family circumstances now dictate that the Wife must be given a roof over her head for herself and the Children. The Matrimonial Home at Rhine Court must be transferred to her. With her horrible physical disability, wholly caused by the criminal activity of the Husband, together with the heavy Family responsibilities that she must now bear alone, force me to come to the only just solution: namely that the Matrimonial Home should be transferred to her entirely. In all the unhappy circumstances of this Case it would not be fair to include any Legal Charge in favour of the Husband. Any such Charge in his favour would normally carry the stipulation that it was not to be enforced until the younger child reached the age of 18 or on the sale of the Property ( if that is the Wife's plan). The enforcement of such a Charge would straightaway deplete the Wife's resources. Bearing in mind the Husband's predicament in prison, she has nowhere else to look for financial support. I shall therefore make an Order that the Property at Rhine Court is to be transferred entirely to the Wife.

The Husband's Provident Fund

I shall not make any Order concerning this money. I am not certain what the precise amount is especially after the deduction of the Husband Legal Costs both in the Criminal & Divorce Jurisdictions."

4. It has to be said that apart from the matrimonial home and the husband's provident fund, whatever the value of the latter, there were no other family assets. The position in regard to the provident fund remains as uncertain as it was before the judge. The wife's contention originally was that the husband would be entitled to have his contributions back and that this should be of the order of $100,000. However, before us today, the husband states that his entitlement was only of the order $60,000, which he withdrew to fund his appeal against conviction and sentence in respect of the sulphuric acid assault upon his wife.

5. In his written grounds of appeal and before us today, the husband has attacked the judge's order in two broad respects. First, in relation to the wife. He disputes the figure of $1.4m suggested to this Court by Miss Suzanne Sim as the current value of the flat. He contends that it is over $2m, and that the current rent would not be the $7-8,000 per month suggested by Miss Sim, but rather in the order of $14,000 per month. He submits that the judge was wrong in stating that with her husband in prison, the wife "has nowhere else to look for financial support"; he insists that he always wanted the flat to be rented out to produce an income for his wife and two daughters' living expenses. He contends that the judge's order will not ensure a steady income for the wife and two daughters but on the contrary causes concern to him that if she receives a lump sum payment, she may well dissipate it by poor investment as in the past and that in any event the capital would be eroded by inflation.

6. The second general respect in which he complains against the order is in relation to his own needs. He submits that he will have no earning capacity when he is released in some 4 years' time and will be 51 years old. He will have no home to live in and will not know where to go upon his release. His parents are now old and have no property of their own. He has no place to store his belongings and if the matrimonial home is sold, there will not be any place to store them.

7. He complains that the judge did not give consideration to the latter matters and generally had regard only to the wife's needs and not to those of the husband or the children.

8. It is not disputed that in terms of earning capacity, without going into the distressing details, the judge was right in almost wholly discounting the wife's earning capacity. Indeed, it appears that she faces the daunting prospect of a series of painful operations designed to mitigate the severe disfigurement she has sustained. Her needs and those of the two children are substantial. They were put at the trial at just below $14,551 per month.

9. It is plain from his judgment that the judge took into account the conduct of the husband, and from his reference to this being of a gross nature that he did not overlook the judgment of the Court of Appeal given by Lord Denning MR in Wachtel v Wachtel (1973) 1 All ER 829 at 835, 836. Lord Denning said that the statutory requirement that the court had to have regard to the conduct of the parties did not mean that there had to be the sort of inquiry into conduct that preceded divorce for irretrievable breakdown. He rejected the suggestion that the respondent wife should be subject to a discount or reduction in what she was to receive because of her supposed misconduct, guilt or blame adding that:

"There will no doubt be a residue of cases where the conduct of one of the parties is in the judge's words 'both obvious and gross', so much so that to order one party to support another whose conduct falls into this category is repugnant to anyone's sense of justice. In such a case the court remains free to decline to afford financial support or to reduce the support which it would otherwise have ordered. But, short of cases falling into this category, the court should not reduce its order for financial provision merely because of what was formerly regarded as guilt or blame. To do so would be to impose a fine for supposed misbehaviour in the course of an unhappy married life. Counsel for the husband disputed this and claimed that it was but justice that a wife should suffer for her supposed misbehaviour. We do not agree. Criminal justice often requires the imposition of financial and indeed custodial penalties. But in the financial adjustments consequent on the dissolution of a marriage which has irretrievably broken down, the imposition of financial penalties ought seldom to find a place."

Clearly, the husband's conduct here was "both obvious and gross" so that the judge was free to decline to award or to reduce the share he would otherwise have ordered (assuming future financial support is to be dealt with upon the same basis as a share of existing family assets contributed to by both parties). But the judge was yet enjoined by s.7 to take into consideration under paragraph (b) of that section the financial needs of the husband and as far as we can see he failed to do so.

10. We do not accept the husband's contention before us that upon his release in some 4 years' time at the age of 51 he will be unable to find employment. Although he might not be able to find employment in his former occupation as a teacher, we should be very surprised if he did not find some other employment. People in Hong Kong work well beyond the age of 51 years and he appeared to be fit and well preserved with many years work in him. Despite these considerations, apart from any benefit he may obtain from his provident fund, which is uncertain, he will be without any funds on his release and will need a reasonable amount to get on his feet. We do not think $75,000 would be over generous.

11. In the latter regard, if the wife and children's needs are $14,551 per month upon the wife's own estimate, prepared no doubt with professional assistance, it would seem to be more than amply provided for by a sum of $1.4m. From the wife's affidavit before the judge he would have been aware that the wife proposes to sell the family home and rent accommodation nearer the children's school. There would therefore be no question of the wife being denied the use and benefit of the family home to allow a share to the husband.

12. At this point, it is necessary to refer to the civil action for damages the wife has taken against the husband, no doubt for a very substantial amount given the nature and severity of her injuries. Clearly, the execution of any such judgment could have the potential to frustrate any award this Court might make to the husband. We would, therefore, not have been disposed to make such an award but for the wife's communication through her legal advisers that she would not levy execution upon such an award. Having, therefore, assured as best as possible that the husband should receive an amount of $75,000 upon or prior to his release, it seems to us that it would be only right that the wife should be able to proceed against the husband's provident fund benefit, whatever it is worth, and any other assets he may have.

13. For the reason therefore that the judge erred in principle and in law in not having regard to the husband's needs, we would allow the appeal and in exercising the discretion he should have exercised properly, we vary the judge's order to the extent of ordering the wife upon sale of the family home, or upon the husband's release, whichever is the earlier, to pay to him $75,000.

14. There remains the minor matter of the husband's clothing and some other possessions that are still stored in the family home. He wishes them to be handed to his sister. The wife has no objection to doing so. We make an order for such handing over at the mutual convenience of the wife and sister.

15. Finally, we make an order nisi that there be no order as to costs, and that the wife's own costs be taxed in accordance with the Legal Aid Regulations.