LCK v. WMDGL

FCDJ 8388 of 1993

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8388 OF 1993

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J U D G M E N T

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The Application

1. This is the Petitioner Husband’s application for downward variation of the Court Order of 19^th December 2005 on periodical maintenance to the Respondent Wife.   A Summons for the same was issued on 30^th December 2005, eleven days after such order was made.  This is the third time the Petitioner applied for variation of the maintenance order since 1997.

Background of the Application and History of the Family

(I) Family Background

2. The Petitioner and the Respondent were married in Hong Kong on 23^rd May 1981.  Their daughter, G was born in 1983.  In 1990, the Respondent and G immigrated to the United States of America and they are now citizens there.  On 20^th December 1993, the Petitioner petitioned for divorce on the ground of five year separation since 17^th June 1988.  The Respondent filed an Answer denying the separation.

3. By consent, it was ordered on 20^th October 1995 that the Petitioner do pay a monthly sum of US$3,500 to the Respondent and G as maintenance pending suit.

4. On 23^rd November 1995, a property situated at Kowloon (“the Property”) was purchased under the name of a company called GTHL (“GT”) at the consideration of HK$3,000,000.   The shareholding of GT was:  one share held by the Petitioner and 9,999 shares by his present wife (then his girlfriend), WWFR (“R”).  The size of the Property was about 560 square feet and was later used as their matrimonial home.  The Petitioner resigned his office as both the secretary and director of GT only on 17^th May 2005.  His only share was “sold” to one WCMP on or about 8^th March 2005 at HK$1 whose address is the same as that of the Petitioner and R.

5. The divorce proceedings were withheld for a while, until the said petition was amended to the ground of divorce basing on 2 year separation without consent in 1997.

6. The Petitioner in 1997 was in arrears of maintenance payments.  Judgment summons and application to vary the maintenance order were issued by the respective parties.  After hearing, the interim order remained as it was and the Petitioner was ordered to make up the arrears.

7. On 9^th February 1999 the Decree Nisi was pronounced.

(II) Hearing in 2000

8. The 2^nd time when the parties appeared before a family judge for trial on Ancillary Relief issue was in 2000.  At that hearing Deputy Judge Winston Leung did not accept the Petitioner’s average monthly income to be HK$30,000, but took a broad-brush approach and set the average income of the Petitioner to be HK$50,100 per month.  As the Petitioner offered to pay the Respondent and G US$4,500 per month, it was ordered by consent, inter alia, that as from 1^st September 2000 the Petitioner was to pay US$2,500 per month as maintenance for G until she attains the age of 18 or until she finishes her full-time education, whichever is later and US$2,000 per month as the maintenance for the Respondent (“2000 Maintenance Order”).

9. At the same hearing, the Petitioner claimed that R was very supportive of him both financially or otherwise, and he has never contributed any money to the Property.  The monthly repayment made by R of the Property was about HK$20,615.

(III) Judgment Summons and Variation of Maintenance in 2004 / 2005

10. It was said by the Petitioner that when the 2000 Maintenance Order was made, the Petitioner’s business was better and R, who was working at that time, was willing to use her salary of HK$30,000 per month to finance his maintenance payments.  The Petitioner alleged that he has been living beyond his earnings, and that due to the 2000 Maintenance Order his living standard has been greatly compromised.

11. He had claimed that he was unable to pay the maintenance pursuant to the 2000 Maintenance Order on the following grounds : -

1.	Substantial reduction of his income from his practice;
2.	R has retired from her employment as a cabin crew and has no income, and therefore, she is not able to assist him in making payment of the maintenance; and
3.	His expenses increased as a result of the birth of his son W and also his financial commitment to his mother.

12. It was noted that in the beginning of 2003 the Petitioner was in breach of the 2000 Maintenance Order and failed to make full payment on the monthly maintenance of US$4,500 for the Respondent and G.  On 25^th November 2003 R gave birth to their eldest son W.  As from January 2004, the Petitioner has completely ceased all payments of maintenance to the Respondent and G.  The Petitioner was earning HK$715,676.20 in 2004.  For the whole year of 2005, he only managed to pay US$700.

13. Judgment Summons for arrears of maintenance was taken out by the Respondent on 8^th March 2004, followed by the Petitioner’s Application for maintenance variation filed on 26^th March 2004.  It was the 3^rd time when the parties appeared in Court for trial on financial matters.

14. Before that hearing took place in July 2005, the Petitioner signed a Deed of Separation in February 2005 with R, offering to pay her HK$20,000 per month.  As he was indebted to the Inland Revenue for income tax of approximately HK$330,000, he voluntarily petitioned for his own bankruptcy in June 2005.  In August 2005, he was declared bankrupt.  During the 2005 hearing, the Petitioner on one hand relied largely on the 2000 Judgment delivered by Deputy Judge Winston Leung in August 2000 but on the other hand insisted and maintained that his monthly income was only about HK$30,000 at that time, despite the findings of it made by Deputy Judge Leung to be HK$50,100 per month.

15. The hearing was eventually ended by the parties’ submissions made on 19^th October 2005, and pending delivery of Judgment, the Petitioner on 14^th November 2005 wrote to Court stating that R was accidentally pregnant and expected to deliver in June 2006.  Judgment was delivered on 19^th December 2005 (“2005 Judgment”) without considering any issue of the alleged unexpected pregnancy.  This Court ordered, inter alia, that the Amended Maintenance Order filed herein on 27^th September 2000 be varied as follows : -

“(i)	the Petitioner do pay the Respondent the periodical payment with effect from 1st April 2004 in the sum of US$1,000 per month as maintenance for the child of the family, namely GLCL (“G”), and US$980 per month as maintenance for the Respondent until 31st December 2004;
(ii)	the Petitioner do pay the Respondent periodical payment with effect from 1st January 2005 in the sum of US$1,760 per month as maintenance for G until she finishes her full time education, and US$1,760 per month as maintenance for the Respondent;
(iii)	for avoidance of doubt, the Petitioner’s obligation to pay maintenance to G shall cease after the expiration of one month from the date of the completion of full time education by G; and
(iv)	also provided that after the expiration of one month of the completion of G’s full time education, the Petitioner do pay US$1,950 per month as maintenance for the Respondent.”

The order varied is now referred to as “2005 Maintenance Order”.

16. At the same time, this Court was satisfied that the Petitioner had deliberately defaulted in payment of the maintenance to the Respondent and G despite that he has income and the ability to do so and he has not shown cause why he should not be committed to prison.  Therefore an order was made but suspended on terms as follows :-

“1.

The Petitioner be committed to prison for 2 months provided that such committal order be suspended for so long as he pays the total sum of the Judgment Debt of US$91,360 by instalments of US$350 per month commencing on 1st day of January 2006, and thereafter on the first day of each and every subsequent and consecutive month, and also provided that after expiration of one month of the completion of G’s full time education, the sum under this term of Order shall be adjusted to US$1,900, payable in the same manner as aforesaid until full payment of the said Judgment Debt under the said Judgment Summons and Order thereof.

2.

The Petitioner shall file his affidavit by 30th June 2006 showing any efforts of augmenting his income.”

The committal order is now referred to as  “2005 Suspended Committal Order”.

(IV) Present Application by the Petitioner

17. In eleven days’ time after the 2005 Judgment (comprising the 2005 Maintenance Order and the 2005 Suspended Committal Order) was delivered, the Petitioner filed his Application for variation of maintenance on 30^th December 2005, which is the subject matter of the present hearing. 

18. On 13^th February 2006 the Petitioner’s trustees in bankruptcy, confirmed by letter that they have “no objection to the sum(s) under the 2005 Maintenance Order (of 19^th December 2005) being deducted as the bankrupt’s expenses”.  The Petitioner’s bankruptcy therefore has no significance nor implication on the payments to the Respondent and G under the 2005 Maintenance Order.

19. The Petitioner’s daughter, G, completed her full time education at the University at the end of March 2006.

20. By virtue of the 2005 Maintenance Order and the 2005 Suspended Commitment Order, maintenance for G ceased to be payable after 30^th April 2006.  The monthly maintenance to the Respondent accordingly was adjusted from US$1,760 to US$1,950 on 1^st May 2006.  The monthly instalment of the Judgement debt was also adjusted from US$350 to US$1,900 on 1^st May 2006.

21. Apart from making monthly payments of US$350 in partial satisfaction of the Judgment debt since January 2006, the Petitioner failed and/or refused to make all other payments and adjusted payments in accordance with the 2005 Maintenance Order and the 2005 Suspended Committal Order.  In such circumstances, a total sum of US$17,980 was and became outstanding for the period from January 2006 to June 2006, under the 2005 Maintenance Order, and another aggregate sum of US$3,100 also remained outstanding for the months of May and June 2006 under the 2005 Suspended Committal Order.

The Laws

22. Application for variation of maintenance shall be made under Section 11 of the Matrimonial Proceedings and Property Ordinance (“MPPO”).  Under and by virtue of Sections 11 (1) and 11 (2) of the MPPO, the Court has power to vary or discharge the periodical payment(s) in favour of the Respondent under Section 4 (1a) or in favour of G under Section 5 (2a).  Pursuant to Section 11 (7) of the MPPO, it was provided that “in exercising the powers conferred by this section, the Court shall have regard to all circumstances of the case, including any change in any matters to which the Court was required to have regard when making order to which the application relates”.  Matters under Section 7 of the MPPO will also have to be considered.  It is clear that the Court is to look at all circumstances and all relevant matters and materials in dealing with  the application for such variation.

23. In this hearing, both the Petitioner and the Respondent referred to the 2000 trial before Deputy Judge Winston Leung and the 2005 trial before me.  It seems necessary to review the history of these proceedings for the purpose of considering the variation being applied for and to examine what, if any or at all, those change(s) of circumstances may be, in support of the Petitioner’s application.

The Petitioner’s claim

24. The Petitioner claims that he is unable to make payments of any maintenance under the 2005 Maintenance Order and the 2005 Suspended Committal Order on the following grounds :-

1.	Substantial reduction of his income from his practice since the last hearing in July 2005;
2.	Extra expenses incurred as a result of the birth of his 2nd son H in June 2006 and the school fee charged by the P at Kowloon Tong, which his eldest son W is attending.

25.The Petitioner does not dispute the Court’s findings that US$1,946.81 and US$1,929.70 were reasonably required by the Respondent and G for their respective monthly expenditures.  He agrees that there is no necessity for the Respondent to file any updated affirmation of her needs nor to attend Court for cross-examination.  Under these circumstances the Court needs only to deal with the Petitioner’s ability to pay.

The Petitioner’s case

26. The Petitioner aged 55 is a registered chiropractor practising in Hong Kong since 1981.  He has been an extremely experienced chiropractor.  He started his clinic under the name of Dr CKL at the clinic situated at Hong Kong (“Clinic”) in 1981.  The Petitioner met his present wife, R in 1993.  On 23^rd November 1995, the Property was purchased under the name of GT at the consideration of HK$3,000,000.  The Property was later used as their matrimonial home.  On 9^th February 1999 the Decree Nisi of the marriage between the Petitioner and the Respondent was pronounced.  Such Decree was made absolute on 14^th September 2000.  The Petitioner married R on 7^th November 2000.

27. At present the Petitioner is still running the SC Clinic at the same place.  Apart from operating this clinic, the Petitioner had, from May 1998 to November 2003, worked at the NTWMC in Tsuen Wan (“NTW”) on a profit sharing basis with 55% profit to the Petitioner.  It was undisputed that since 1^st December 1999, all the income arising from the Petitioner’s work at NTW were paid to GT.  His income from the NTW was HK$498,143 in 2002 and HK$254,566 in 2003 respectively.  From June 2003 to May 2004 the Petitioner had also worked at LH Centre (“L”).  He was to pay 50% of his income to the management as licence fees.  His income from L was HK$78,510.51 in 2003 and HK$27,366.20 in 2004 respectively.

Historical Income of SC Clinic

28.It is noticed that the Petitioner’s income in the past few years was  as follows :-

For the year 2003, his income from the SC Clinic was HK$668,940, i.e. an average of HK$55,745 per month.  During this period of time, he had attended work at NTW as well as L and was not full-time working in SC Clinic.

In 2004, his total income from the SC Clinic was HK$688,310, a monthly average of HK$57,359.  The Petitioner asserted that his income in 2004 had been reduced.  As a result, he completely ceased paying his maintenance for the Respondent and G.  He pursued his application for variation in March 2004.  He stopped to work for L in May 2004 but did nothing to increase his income.

29. The Petitioner has, for reason unknown, not produced his income for July 2005, the average monthly income, basing alone on his income for the months from January to June 2005 and August to December 2005, from SC Clinic in 2005 appeared to be in the region of HK$40,000.

30. For five months in 2006, the Petitioner’s average income from SC Clinic allegedly further descended to about HK$20,000 per month.  The Petitioner set out the gross income from the SC Clinic as follows : -

Month / Year	Amount (HK$)
August 2005	$60,200
September 2005	$38,300
October 2005	$25,100
November 2005	$28,870
December 2005	$19,700
January 2006	$16,200
February 2006	$17,240
March 2006	$26,900
April 2006	$23,200
May 2006	$22,920

31. Basing on the above figures, the average income from August 2005 up to May 2006 is about HK$27,863 per month.  Having deducted the approved monthly expenses of the SC Clinic of HK$13,300 (as adjudged by the Court in the 2005 Judgment), the Petitioner would have an average of HK$14,563 per month.   Basing allegedly on the above figures for the last six month, the Petitioner came up with an average net monthly profit of HK$7,726.

The Respondent’s Submission

Alleged factors for variation

(I)  Deed of Separation and Rowena’s pregnancy

34.The Petitioner stated that his marital relationship with R had become so tense that he had to physically move out in February 2005 and lived separately.  On 25^th February 2005, the Petitioner entered into a Deed of Separation with R.  Under the said Deed, the Petitioner offered to pay R HK$20,000 per month as periodical payment for R and W from 1^st March 2005.  The Petitioner claimed that he would occasionally visit his son at the Property.  During these visits he slept separately from R.  Their marriage was then alleged to be, and seemingly very much, at stake.  The Petitioner sought to rely on his alleged “separation” and “obligation” to pay R HK20,000 a month in opposing the maintenance payment to be made to the Respondent and G.

35. The Petitioner also said that he has moved to live with his mother, as such he also claimed expenditure on his mother.  In the last hearing the Petitioner again emphasised that he was in distressful financial state.

36. Not only did he allegedly have difficulty to maintain himself, he was also totally unable to support R and his son, W.  Had the Petitioner’s allegations of such financial difficulty been true, there would have been no likelihood of extending any financial support by the Petitioner to R, her son and her household.  The Petitioner however at the trial claimed that he has been supporting two separate households in Hong Kong, one for R and the other for his mother, despite his alleged “bare minimal allowances”.  It is apparent that the Petitioner was using his claim(s) on the expenditures for the two households as against the Respondent’s claim for maintenance for herself and G.

37.In 2003 when R gave birth to W, large sum of medical expenses were incurred both in pregnancy and labouring, not to mention the daily expenses spent on the baby after birth.  The long term financial responsibility for having another child must have been well contemplated and catered for by the Petitioner and R.  It is most unrealistic for the Petitioner to allege that the “separated”, couple like the Petitioner and R, would have agreed, and been willing to have the second child without the necessary financial means in support.  The fact that R has been maintaining her living style and standard, being able to meet the monthly mortgage payment of over HK$26,000, maintaining a domestic helper and a car and without having to work at all, and without any other financial means, except perhaps “the money, one or two thousands, borrowed from the Petitioner’s mother”, speaks for itself.

38.The Petitioner knows better than anyone does that having a child is not only a life long commitment but will entail heavier burden financially or otherwise on his family, hence affecting the claim for maintenance by his ex-wife the Respondent and G.  The fact that the Petitioner maintained his version of separation even up to the hearing last October and also his allegation of offering and/or obligation to pay, to R HK$20,000 a month as for her maintenance, knowing fully well that he and R had in fact had consummation at least in about last August (if not before), speaks for itself.  If R had ever had to rely on her MPF or savings, as alleged, she would have exhausted them all well within less than a year, by her standard of living.

(II)  Bankruptcy

39.It was only on 24^th June 2005 that the Petitioner revealed for the first time of his bankruptcy application made on 17^th June 2005 for the outstanding tax of about HK$330,000 due to the Inland Revenue Department.  There were no other debts to be included or declared in the Debtor’s Bankruptcy Petition. 

40.If  R, who has borne the Petitioner the 2^nd child, despite separation, was a lady of financial means and, if the Petitioner’s mother was lending R money, albeit small sum, to pay for the monthly instalment of the Property, why did the Petitioner not seek help from the two or either of them to pay for the outstanding tax ?  HK$330,000 is not too large an amount for which the Petitioner is unable to obtain a loan.  There was no evidence that he had ever approached any financial institution for a loan, nor had he requested for payment of tax by instalments.  Coupled with the fact that the Petitioner chose to “sell” his one share of GT to one WCMP

of the same address as that of the Petitioner and R, without however accounting for the true value of the share (e.g. the market value of the Property) on about 8^th March 2006, that the Petitioner resigned his secretary and director’s post on or about 17^th May 2006, and that his “income” dramatically and drastically fell from the usual average of about HK$52,000 to HK$28,000 for the month of June 2005 (the month before the hearing in last July 2005), it leaves the Court very little, room to doubt that such voluntary “bankruptcy” was self “petitioned”, and the alleged “sale of share”, resignation from GT and the “sharp” falling of income, were made to happen, with a view to catering for the support of his application for the variation of maintenance and to counteract, undermine and/or defeat the Respondent’s claim on maintenance, which was due to be heard in July 2005.

(III)  Schedule of Income

41.The Court in the 2005 hearing was shown the amount and calculation containing in the Schedule of the Petitioner’s Income for the period from January 2003 to June 2005, as prepared according to the evidence and information provided by the Petitioner including the patient records availed, monthly income statements of NTW, the credit notes of L and various bank statements.  In the present hearing, this Court also adopts the same Schedule for purposes of making observation and comparison (Annexure “C” of the written submission of the Respondent’s solicitors and Exhibit R 5 of 2005 trial).

Schedule of Income from March 2002 to June 2005

Date		Amount (HK$)
Year	Month	SC	GT	L
2002	January	Missing	22,480
	February	Missing	42,642
	March	60,100	38,775
	April	46,030	36,797
	May	42,580	38,394
	June	38,980	53,608
	July	35,850	56,130
	August	61,900	33,553
	September	73,200	37,834
	October	84,040	55,691
	November	84,950	38,945
	December	48,500	43,294
	Total :	576,130	498,143
2002	January	50,550	28,715
	February	44,990	43,473
	March	42,650	42,462
	April	65,450	30,074
	May	75,750	36,768
	June	70,550	17,402	14,859.10
	July	31,200	10,666	29,512.78
	August	42,190	14,753	14,631.55
	September	46,200	14,981	2,582.92
	October	96,730	14,573	3,918.70
	November	42,750	699	9,091.01
	December	59,930	N/A	3,914.45
	Total :	668,940	254,566	78,510.51
2004	January	48,300		3,145.95
	February	60,250		10,238.05
	March	71,690		9,495.95
	April	34,450		2,412.85
	May	45,300		2,073.40
	June	83,650
	July	58,300
	August	71,590
	September	48,280
	October	88,000
	November	44,350
	December	34,150
	Total :	688,310		27,366.20
2005	January	68,560
	February	23,800
	March	61,700
	April	62,140
	May	42,200
	June	28,800

(IV)  NTW / L / resourceful man

42. As early as in May 1998 the Petitioner worked at NTW on a profit sharing basis.  Pursuant to the Consultancy Agreement dated 9^th November 1999 entered into between CB and the Petitioner in the name of GT.  The Petitioner was to provide chiropractic services at NTW on Monday, Wednesday and Friday from 10:00 a.m. to 3:00 p.m. and on Tuesday and Saturday from 2:00 p.m. to 6:00 p.m.  CB and GT were to share the profit with 55% to GT, 45% to CB.

43. From the 2000 Judgment, this Court was led to believe and reckon that it was the Petitioner’s evidence that R had in all these years been paying for the monthly instalment of the Property and the Petitioner had never contributed any money towards the Property.  At the 2005 trial, the evidence revealed that since 1^st December 1999, all the income arising from the Petitioner’s work at NTW were paid to GT account which were and had been used to repay the monthly mortgage of the Property.  His annual income in NTW in 2002 was HK$498,143.  His annual income in NTW in 2003 was HK$254,566.  The Petitioner ceased working at NTW since about December 2003.

44. From June 2003 to May 2004, the Petitioner also worked at L Healthcare Centre operated by LHM Ltd (“L”).  On 29^th May 2003, the Petitioner entered into a Licence Agreement with LHM Limited to operate chiropractic service.  His working schedule was Monday, Wednesday, Friday, 9:00 a.m. – 11:00 a.m. and 7:00 p.m. – 9:00 p.m. (by appointment); Tuesday, Thursday, Saturday, 12:00 noon – 3:00 p.m. and 7:00 p.m. – 9:00 p.m. (by appointment); Sunday and Public Holiday, 2:00 p.m. – 5:00 p.m. (by appointment).  The Petitioner was to pay 50% of his income as Licence fees to the management.

45. In these nine months his income from L was HK$46,873.28.  As the income had dropped in the last few months at L, the Petitioner decided to terminate the Agreement and ceased practice there in May 2004.

46. It is noted that between June 2003 and November 2003, the Petitioner was operating chiropractic service at three clinics, namely the SC Clinic, NTW and L; and had three sources of income.  He spent half of his time working in NTW and / or L and half of time in SC Clinic.

47. The Court accepts that the Petitioner was a very resourceful man and he could, if he so wished and was willing to, take and make use of the opportunities and took active steps in promoting his business as he did in the past.  It was not so long ago (between June 2003 – November 2003) that the Petitioner was operating chiropractic service at three clinics at one time.

48.The Petitioner asserted that from June 2004 onwards his only source of income came from the SC Clinic.  He was therefore left with a lot of free time to expand his service or to go into any other business(es).  On one hand the Petitioner alleged that he was in serious financial difficulty to the extent that he had to voluntarily petition for a bankruptcy, but on the other hand he has done nothing actively or at all to improve or enhance his financial situation or to extend his professional services.  The Court gave its view in 2005 that if the Petitioner had worked harder, he would have found other additional sources of income.  Therefore the Petitioner was allowed six months from December 2005 to make arrangement with other clinics so as to provide services and to augment his income.  The Court then was however not made aware of how the Petitioner’s alleged “separated” wife could have survived by the Petitioner’s alleged “financial difficulty”.

49. Eventually at a social function it was the owner of the NTW who approached him for his professional services.  Consequently the Petitioner on 11^th February 2006 entered into a Consultancy Agreement with the NTW MC Ltd (“NTW Ltd”) to provide chiropractic services at its J Clinic during the mutually agreed operating hours.

50. The two parties were to share the profits with 55% to the Petitioner and 45% to NTW Ltd.  Unlike the previous consultancy agreement in 1999, where the Petitioner was required to spend about 1 / 2 of his working time in the NTW, there was no longer any working hours specified in this new Agreement.  The Petitioner only works upon on-call basis.  In other words, the Petitioner can work quite flexibly and freely for NTW Ltd.  No monthly income statement of NTW Ltd was provided, but the Petitioner stated that the income he received from NTW Ltd was HK$1,825.50 for March 2006 and HK$658.62 for April 2006.  It can be deduced from the amount he so received that the time he spent on working for NTW Ltd was very little.

51. Again he still has a lot of spare time to provide his services or to go into other business(es), for the purpose of increasing his income.  Apart from the Petitioner claiming that he attempted to offer services to a hotel and several spa, there was no documentary evidence to show such attempt actually being made, nor any evidence that the Petitioner has approached other medical centres / clinics to provide services with a view to increasing his income ever since May 2004.  It was allegedly the owner of the NTW who approached the Petitioner for him to provide services for NTW Ltd in March 2006.

52. The Petitioner is a very experienced and resourceful chiropractor.  Having been in practice for not less than 25 years, he would certainly have his own professional connection and means to avail himself with wider options on his income source.  The Petitioner did not seem to have made the most of his resources.

53. The Court reckons that the Petitioner is the kind of person who will not allow himself to make so little income and yet do nothing to improve his situation.  But the evidence seems to show that ever since the Petitioner left L in May 2004 he has not put in any effort to increase his income even up to and after the time when he was asked to do so by this Court in December 2005. 

54.The Court in any event is not satisfied that the Petitioner has shown his financial means, his genuine income and/or source(s) of income in full, and/or that the Petitioner has any genuine “financial difficulty” as alleged.  It is the Court’s view that even if, which the Court doubts very much, there had been any sharp downfall of his business as alleged or at all, unless the Petitioner now works to “earn” much more than he actually revealed in his evidence and the self serving documents he produced for his application for variation, he cannot possibly afford not doing anything to improve his financial situation. The Petitioner seems to have made repeated applications for variation to undermine or defeat the Respondent’s claim in sole reliance of his “records of income” which the Court is not confined to look at or to accept.

(V)  The Petitioner’s mother and R’s household

55.The Petitioner’s mother is the registered owner of a flat in Tsim Sha Tsui which the Petitioner claimed that he is now living in.  She engaged her own maid by signing an employment contract with her.  Likewise it is noted that R also employed her own maid.  It is undisputed that to become an employer of a maid, adequate financial means of employer must be shown.  In this present hearing the Petitioner alleged that his mother has been lending HK$1,000 to HK$3,000 to R to pay her monthly mortgage of the Property.  If the Petitioner’s mother has extra financial means and was able to render help constantly to R, she would probably be in a position to assist the Petitioner in his payment of tax so as to save him from becoming a bankrupt.  Not only the Petitioner sought no help from his mother to save him from the financial predicament, he admittedly further burdened himself by making financial provision for his mother and paying for her maid.  Having considered all circumstances, the Court is satisfied that the Petitioner is able to provide, and is in fact providing, the same as alleged.

56.The Court has no reason to doubt that the Petitioner’s mother has extra financial means to render help, if she ever did, to R.  It is well noted that in the previous hearing the Petitioner’s mother was being used or intended to be used by the Petitioner as such means to enlarge his expenses, so as to pay lesser and/or to avoid paying any maintenance to the Respondent.  Whereas in this hearing the Petitioner’s mother was being used to explain, why R having no income at present was still able to maintain the luxurious living standard enjoyed by her always and throughout.  In either case, the Court is in no position to accept that the few thousand dollars “lent” to R or the Petitioner by his mother would or could support R’s household in terms of her living style or standard, which is still luxurious in nature.  The Court finds it irresistible to conclude that, R’s household must mostly, if not all, have been supported and provided for by the Petitioner.

(VI)   R’s financial position in 2000

57. Having served the Airlines for 16 years, R retired as a Leader Cabin Attendant in May 2002.  At that time, she was earning HK$26,821 per month.  She first joined the Airlines in April 1986 when she was only 21.  Presumably her income would be much lesser 16 years ago.   The Petitioner and R met each other in 1993.

58.In November 1995 the Property (which was later used as their matrimonial home for the Petitioner and R) was purchased for HK$3 million.  The Petitioner emphasised from time to time that he had never contributed towards the purchase of the Property and at least up to 2000 trial, he had never paid for any monthly instalments.  He maintained that it was R who used her own money to purchase the Property and has always been paying the mortgage instalments herself.  Nothing was however produced to support his allegations in any way.

59. The Property was mortgaged to the Bank for HK$2.1 million to be paid in 20 years.  Presumably at least about HK$900,000 down-payment was paid out of R’s own pocket in 1995.  The monthly repayment was about HK$20,615 at that time.  There was no evidence to suggest that R had any source of income other than her salary for serving as a cabin crew.  Her savings accumulated in the past nine years would have almost, if not all, been used up in 1995 for the down-payment of the Property and the necessary legal costs.  At that time, the Petitioner and R were cohabitating.

60. At the 2000 trial the Petitioner insisted that he was then earning HK$30,000 per month.  He claimed that as R was willing to use her monthly salary of HK$30,000 to finance him, he therefore agreed to pay US$4,500 as maintenance to the Respondent and G.  As a result of the Petitioner’s agreement, though after trial, he was ordered to pay US$4,500 to the Respondent and G under the 2000 Maintenance Order.

61. The Petitioner has never seen R’s source of income as being questionable or suspicious.  He did not suggest that R is a lady of wealth, or that she has received any inheritance or engaged in any profitable investments or side business.  There was no evidence to suggest and no reason for the Petitioner to suspect that R has other source of income or unknown financial resources except the income she received as a cabin crew since 1986.  It is undisputed that she retired 16 years later in May 2002 and was earning HK$26,821 at the time of her retirement. 

62. The Petitioner has presented various versions on when he started paying the monthly mortgage of the Property.  Up to 2000 trial, the Petitioner still maintained that he has never contributed towards the Property financially.  At the 2005 trial, he has given conflicting evidence as to his contribution to the monthly repayment of the Property.  Whichever way the Petitioner’s evidence goes, it was the case of the Petitioner that R paid for the monthly mortgage out of her own salary for many years and now from her own savings.  It is in any event clear that the Petitioner never suggested that R has other income source or financial means, known or unknown.

63. With regard to the Petitioner’s evidence on R’s monthly contribution on the Property and towards the Respondent’s maintenance, she could not possibly have the financial ability to assist and pay for both expenditures at the same time.  It was noticed by the Court that at least in the years of 2000 / 2001, R had contributed HK$30,000 annually (i.e. HK$2,500 per month) towards her dependent parents or grandparent as claimed in her tax statement which was filed on 12^th April 2005.

(VII)  R’s financial position after 2000

64. Upon retirement in May 2002, R has no other income except a few thousand dollars for a very short term given by the Petitioner for helping in his clinic in 2002 / 2003.

65. Contrary to what he said at the previous trial, the Petitioner claimed that he has started to pay the monthly mortgage of the Property in 2002 / 2003 by using the income he received from NTW.  But in 2004 he paid such instalment only on an occasional basis.  As from February 2005 he has allegedly ceased making all payment to R, except a few thousand dollars in June 2005 and July 2005.

66. With insufficient or no maintenance at all made by the Petitioner, R was allegedly still paying the monthly mortgage and family outgoings from her own savings.  She and her two children, W and H, are still residing at the Property.  R is still keeping a 13 year old Japanese car, a maid with monthly salary of HK$3,270 for her own use.  She is also responsible for paying the management fee and utilities bills.  Her eldest child W is attending HKPS at KT and has incurred school fee of HK$3,300 per month.

67. Having considered the above circumstances and also the amount allowed by this Court in 2005 for the expenses on household / food / baby / car / travelling / domestic helper/ management fee / utilities / rates and miscellaneous items, R would at least require not less than HK$45,000 per month just to maintain her household (excluding the Petitioner).  The way R lived and spent goes unquestionably beyond what she could possibly afford, if without any Petitioner’s support as alleged.

68. It was the Petitioner’s evidence as shown in the 2000 Judgment, and also at the 2005 trial as well as the present trial that R purchased the Property with her own money and paid for the monthly instalments of over HK$20,000 all these years.  She allegedly had also rendered financial assistance to the Petitioner to pay the maintenance of the Respondent and G as early as in 1995.

69. It is inconceivable that that R could have so much savings to allow her to spend freely and to maintain a luxurious living standard unless with contribution from the Petitioner.  Even with the MPF/ pension of about HK$325,000 she received upon retirement and the little, if any, financial support from the Petitioner’s mother, R would still not be able to lead the life-style and spend in the way as revealed by the Petitioner in his evidence.  The financial situation of the Petitioner’s family (with R) simply does not correspond with the difficult financial situation as alleged by the Petitioner.

(VIII) Bank Record / Patient Record

70. The Petitioner’s practice is cash business.  Receipts will only be issued upon request.  He said he has always asked the patients to sign against their personal file to indicate their attendance.  No such record has been shown to the Court.  The Petitioner produced two sets of documents to prove his income, i.e. the patient records and his bank statements with Bank a / c no..

71. The deposits in the Petitioner’s bank statement appeared to reconcile with the recorded income he received in SC Clinic, but the Petitioner did not deposit all the income he received from the patient into the bank account.  He admitted that the deposits were credited in a way to specifically match with the income stated on the patient record availed and produced by him.  The Court does not accept that these two sets of documents have truly accurately and wholly reflected his actual income and earning capacity.  They are self-serving documents on which this Court can hardly place much or any reliance.

(IX)   The Petitioner’s credibility

72. The Petitioner gave inconsistent evidence as to the amount, the frequency and the purpose of the payments made.  His oral evidence in these aspects contradicts the information contained in his bank statements.  The Petitioner has on several occasions refused to answer directly the questions as to whether or not he contributed to the mortgage monthly repayment of the Property or if he pays R money to help in maintaining her expenses.  He beat about the bush and pretended that these payments were made for purposes other than on the Property.

73. It was in the evidence that the Petitioner chose to stop paying maintenance for the Respondent and G but continued to maintain R.  He tried to deny having made these payments to R by differentiating the purposes for such payments made.  The Petitioner has given different and inconsistent reasons as to when he started or ceased to pay for the monthly instalments of the Property or the maintenance for R.

74. If the Petitioner was telling the truth about his financial difficulty and arrangement, it would then be impossible for him to make any amount of payments to R, even without having to pay G or the Respondent.  However, the Petitioner admittedly was and has been still able to give R “some” money at times even up to mid 2006.

Findings by the Court

75. Bearing in mind the relevant law to be applied in application of this nature, the Court has fully considered with care the case as a whole, the conduct of the parties especially the Petitioner, the judgments given in 2000 and 2005, which were referred to by both parties, the evidence at the 2005 trial which was heard by this Court and the evidence in the present hearing.  As a result, this Court cannot help but firmly says that the evidence presented by the Petitioner were unconvincing and questionable, and that having a second child is no ground for the Petitioner to vary the 2005 Maintenance Order and the 2005 Suspended Committal Order.

76. The Court hence is not impressed with the Petitioner’s alleged evidence and finds him and his purported evidence to be incredible and totally unreliable.

Conclusion

77. The total income of the Petitioner for the year 2003 was HK$1,002,016.51 i.e. HK$83,501.37 per month, while for the year 2004, the total income was HK$715,676.20, i.e. HK$59,639.68 per month.  The reduction in income that year was due to the termination of the service agreement with other clinics.

78.HK$52,000 was accepted to be his average monthly income in the first five months of 2005.  At that time the Petitioner has not done anything to improve his income.  This Court will continue to treat HK$52,000 to be his average monthly income for the whole year in 2005, but cannot find nor accept any alleged “changes” in circumstances by any means.  The Court in any event is not satisfied that the Petitioner has made any proper and adequate effort to increase his alleged “low” or “dropping” income.  The Petitioner’s earning capacity and his monthly income are found to remain in the region of HK$52,000.

79.Having reached the findings as above, and in light of the inexplicable and rather luxurious expenditures of R’s household entirely inconsistent, and even seriously conflicting, with what the Petitioner alleged, the Court is encumbered to make reference of this judgment to the Official Receiver and the Department of Inland Revenue for their consideration and any appropriate action in investigating into the alleged financial affairs, status and/or standings of the Petitioner at all material times.

80. The Court entertains no doubt and finds that the Petitioner could and has the means and ability to make payment in accordance with the 2005 Maintenance Order and the 2005 Suspended Committal Order.  The Petitioner’s application for variation of maintenance is therefore dismissed, with an order nisi that the costs of this application be paid to the Respondent by the Petitioner, such costs to be taxed, if not agreed.