YUNG SAU MAN v. YUNG YEUNG SIU MEI

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JUDGMENT

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Fuad, J.A.:

1. This is an appeal against a decision of His Honour Judge McClelland (pursuant to leave) given on 16 May this year, ordering the Appellant to pay his former wife $750 per month as periodical payments for her maintenance.

2. The background of the case is that the parties were married in China in 1955 when they were in their teens. They are now both aged about forty-eight. There were three children of the marriage who have all grown up. Some thirteen years after they were married, the Appellant came alone to Hong Kong and settled here. Since 1974 he has been living with another lady by whom he has four children who now range image between four and twelve years.

3. The Respondent herself came to Hong Kong in 1983 and since her arrival here has been receiving $500 a month from the Appellant.

4. The Appellant filed his petition for divorce on 16 May 1985 and he averred in it that the marriage had broken down irretrievably in that the parties had lived apart for a period of not less than five years immediately preceding the petition. He obtained his decree nisi on 7 February 1986 and the decree was made absolute on 27 March.

5. Each of the parties gave evidence before the judge in amplification of the affirmations they had filed, and they were cross-examined.

6. The Appellant's evidence was that he operated a cooked food stall with his uncle and earned about $80 per day for 26 working days a month, making a total of $2,080. He did accept, however, that in a good month he might earn something in excess of $3,000 a month. This was his only source of income. He had no capital. He owes something between $12,000 and $13,000 to his relatives and he gives the lady he lives with (who we understand has become his wife since the matter was before the judge) $1,500 a month to cover all their household expenses including rent. That lady is unable to work because she has to look after the children.

7. As for the Respondent, she says she has nothing at all by way of resources, apart from what the Appellant was paying her. She lives with her elderly mother and younger brother. She has not worked since 1984.

8. With regard to the Appellant's means, the learned judge, in his judgment, pointed out that, as was usual in a case of this kind, there were no books of account or other documentary evidence, and he said this:

9. As to the Respondent, the judge accepted that she had cataract trouble with her eyes and suffered from chronic lumbago but held on the evidence that she was capable of doing light work, such as baby sitting, and he assessed her earning capacity at $600 per month. There is no Respondent's Notice about this finding.

10. In her affirmation, the Respondent gave a breakdown of her monthly expenditure which totalled to $3,420 per month. It seems to be common ground that this was the figure for the entire expenses of the household of three and that the monthly expenditure for her own needs would be about one-third of that. This explains why the solicitor then appearing for the Respondent, at the beginning of the hearing, asked for $1,200 per month on her behalf and, it is to be noted, the Respondent herself told the judge that she needed at least $1,200 per month for her living expenses.

11. The Notice of Appeal complains that the judge erred in finding that the Appellant's monthly earnings were in the range of $3,900 per month, basically because there was no evidence to support that finding.

12. In my judgment, it is not possible to interfere with the learned judge's conclusion that the monthly earnings of the Appellant were in the region of $3,900 per month. Clearly he was not bound to accept the mere "say so" of the Appellant and despite the fact that there is very little other evidence to show what his true earnings might be, I think the judge was entitled to draw an inference, once satisfied that the Appellant was not being fully frank that since he was paying his foki between $60/70 a day he must have been earning a good deal more than that. I would not interfere with that finding.

13. The Appellant also urges upon us that the judge was wrong in not exercising his discretion to order a lump sum payment. That is how the matter is put in the Notice of Appeal. Mr. Mitchell has suggested that the possibility that the Appellant could raise money to be able to pay a lump sum should at least have been investigated, for the law encourages the clean break principle.

14. When one looks at the record of the proceedings, although I appreciate that it contains only brief notes of what transpired, the solicitor then acting for the Appellant is recorded as having said that the Petitioner was willing to pay a lump sum to enable the Respondent to have treatment for whatever disability she might have and after that she could make her own living. On that point, the judge said:

15. In the circumstances, I do not think that further consideration by the judge of the possibility of ordering a lump sum was realistic. The Appellant had no capital assets, he is in debt and no firm offer was made. We are told from the Bar that the Appellant is now willing to offer a sum in the region of $20,000 to his wife as a lump sum payment. Whatever may be the result of this appeal, there is nothing to stop the parties getting together to see whether an agreement can be reached about any capital sum that the Appellant is willing and able to pay to the Respondent and, of course, when the sum is decided upon, the parties can consent to the order for periodical payments being set aside entirely or reduced, as the circumstances dictate. However that may be, I am unable to accept that there is a valid ground for complaint about the judge's failure to make a lump sum order in this case despite the obvious advantages of orders of that kind:

16. The other Ground of Appeal addresses the judge's assessment of the financial needs of the Respondent and here I think there is some substance in the submissions. The learned judge in the course of his judgment said this:

17. There is nothing to show where the judge got these figures from. If one compares the Respondent's affirmation, the itemized figures are not one-third of the figures she gave there. If the judge had said that despite the fact that the Respondent had put her minimum needs at $1,200 per month, having regard to all the matters he had to take into account, he felt that a sum of $1,350 would be appropriate, I would not have been inclined to interfere, but the judge has himself found the "bare minimum outgoings" to be $150 a month more than the Respondent herself stated them to be.

18. Although these matters are not to be governed by mere arithmetical calculations, it seems to me a legitimate ground of complaint that the judge reached the figure of $1,350 in the way that he did. I consider that the learned judge's figure of $1,350 cannot stand.

19. Complaint is also made in the Notice of Appeal that the judge did not sufficiently take into account the financial commitments and responsibilities of the Appellant in doing the balancing exercise when comparing them with the needs of the Respondent. In my view, the learned judge plainly took these matters into account, for in his judgment he refers to the sum that the Appellant gave to the lady with whom he lived and states the following:

20. I am of the opinion that we are in a position to make the appropriate Order, if my Brother agrees with me, to save the matter having to be referred back to the lower Court with all the time and expenses involved. I would allow the appeal and reduce the amount of the periodical payments per month that the Appellant should pay from$750 to $600.

Clough, J.A.:

21. I agree with what has been said by Fuad,J.A. in his judgment and I do not consider that I can usefully add anything.