CYTS v. LCK

HCMP 49/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDING NO. 49 OF 2005

(ON APPEAL FROM FCMC 13803/2003)

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J U D G M E N T

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Hon Woo VP (giving the judgment of the Court):

1. This is a renewed ex parte application by the respondent for leave to appeal against the Order made by District Judge Geiser on 18 November 2004.  The respondent had made two similar applications, the first one before the judge, who refused it on 24 December 2004, and the second on paper to this Court, which was refused by Yeung JA on 21 January 2005. 

2. The Order made by Judge Geiser on 18 November 2004 ordered the respondent to pay maintenance pending suit to the petitioner in the sum of $20,000 per month and interim maintenance to the two children of the family in the sum of $7,500 per month for each child.  Thus, the respondent is to make paymentstotalling $35,000 a month.

3. In his Ruling of 18 November 2004, the judge set out the financial position of the parties as well as the disputes as to facts between them.  Having examined the standard of living of the parties prior to the breakdown of the marriage, which was not subject to dispute and which he described as luxurious, he came to the view that the petitioner’s necessary monthly expenses, including those for the two children of the family, came to $41,500 per month.  He referred to the respondent’s affirmation evidence of his income, being $18,000 each month which he allegedly earned as a manager with Sky Rich Holdings Ltd and reached the conclusion that this allegation was unworthy of belief. 

4. The judge took a broadbrush approach to order the $35,000 per month as maintenance pending suit to be paid by the respondent.  His conclusion was made mainly on the following bases, namely,

(1)	The standard of living of the parties before the marriage broke down around October 2003;
(2)	His non-acceptance of the respondent’s allegation that two lucrative businesses, ie, Hung Wan Car Park Ltd and Chee Shing Management Enterprises Ltd had ceased trading respectively since 31 December 2003 and 31 March 2004; and
(3)	His non-acceptance of the respondent’s allegation that the monies withdrawn from the respondent’s bank accounts since the breakdown of the marriage amounting to about $1.4 million were monies belonging to the respondent’s sister and for his repayment of a debt due to a cousin.

5. On behalf of the respondent, it has been pointed out, and we accept, that the threshold for leave to appeal to be granted is a comparatively low one in that leave should be granted unless the appeal has no realistic prospect of success, see Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538. 

6. The main ground of appeal is that the judge should not have refused to accept the allegations of the respondent that the two lucrative businesses had ceased trading and that the $1.4 million withdrawn by the respondent were not his own monies.  The appeal seeks to have the total monthly payment reduced to $18,000.

7. We have been referred to Long v Farrer & Co and Farrer [2004] BPIR 1218 for the proposition that where there is a dispute of fact, as in the present case, subject to limited exceptions, the court should not and could not reject the respondent’s evidence without cross-examination.  Of course, normally that is the position.  However, the instant case is one relating financial provisions pending suit, and the judge’s task was to consider whether to make an order for periodical payments pending suit as he “thinks reasonable” pursuant to s 3 of the Matrimonial Proceedings and Property Ordinance, Cap 192.  He was only required to fix a reasonable figure as to maintenance, having regard to the needs of the wife and children and the ability of the husband to pay: see Wong Che Wai Raymond v Wong Chung Yee Fong Helen [1983] 1 HKC 556 at 572.  It is not appropriate for him to make a detailed investigation of the financial position of the parties.  Nor is it necessary for him to resolve conflicts of evidence.

8. In matters relating to financial provisions after the breakdown of the marriage, the court is fully entitled to take into account the standard of living of the parties prior to the breakdown.  Such standard of living is a ready yardstick for the consideration of the financial needs of the parties as well as their incomes and earning capacities after the breakdown, barring credible and acceptable evidence of circumstances that have altered their positions after the breakdown. 

9. The judge had specifically referred to the lack of documentary evidence provided by the respondent in support of his allegations, and taking a broadbrush approach, the judge was fully entitled to place great weight on the standard of living of the parties prior to the breakdown of marriage in coming to the following conclusion:

“

19.

I am satisfied that the reality of the matter is that the Respondent can go a long way to meet the financial needs of the Petitioner bearing in mind the standard of living she was used to prior to the breakdown of the marriage.”

10. In the present case, the respondent was running two lucrative businesses producing net profits, according to the judge’s calculation, of no less than $2.2 million a year.  The petitioner, who worked for these businesses prior to her leaving the matrimonial home, had been paid a monthly salary $20,000 as well as the exclusive use of supplementary credit cards.  The judge refused to accept the respondent’s allegation that the two lucrative businesses had ceased trading soon after the breakdown of the marriage.  He expressed his disbelief in these terms:

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On the one hand the Respondent had said in his 1st Affirmation that the Petitioner had taken away money from the company and as he was being investigated by the police he decided to close the company.  However in a later affirmation he indicated the reason to be that various landowners refused to continue to rent land to him as a result of the company being in arrears of rent.”

11. In his affirmation filed on 15 November 2004 (which was before the judge), the respondent stated that the petitioner wrongly took away huge sums of money from the businesses resulting in their failure to pay rent, which ultimately led them to be closed down.  He stated that there could be no dispute that the petitioner failed to pay rent for at least 12 months amounting to no less than $360,000.  We share the incredulity of the judge that as compared with the large amount of net profits that could be derived from the businesses, the failure to pay rent in the accumulated amount of $360,000 was the reason for closing down the businesses. 

12. This case has shown itself to be one that is subject to one of the exceptions in Long v Farrer that the allegation of the respondent as to his income, deposed to on affirmation as limited to $18,000 a month is, as found by the judge, incredible.

13. Moreover, the judge was exercising a discretion and this Court may interfere only where it is satisfied that he has come to a conclusion which on the evidence no judge ought to have come to: see Yung v Yung, CACV 201/1985 (18 March 1986, unreported), per Huggins VP at para 4.

14. Having examined the Ruling and all the circumstances very carefully, we have come to the conclusion that there is no realistic prospect of success in the proposed appeal.  The application must therefore be dismissed.