HCKY formerly known as HKY v. CYL

FCMC 12155 /2024

[2026] HKFC 57

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 12155 OF 2024

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BETWEEN

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J U D G M E N T
(Appeal Against Master’s Decision)
(Interim Maintenance Order)

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Introduction

1.  This is an appeal by the respondent husband in respect of an interim maintenance order (“IMO”) made against him by a master (“the Master”) on 16 September 2025.

2.  In this Judgment, I shall refer to the petitioner wife as “W” and the respondent husband as “H”.

3.  The brief background of the parties could be stated as follows.

4.  W is currently 41 years old and H is 48. They married in Hong Kong in January 2010. They have 3 children. The eldest is a girl, now 11 years old. The 2^nd and 3^rd are boys. They are twins and 8 years old.

5.  In about March 2023, the parties separated.

6.  On 17 August 2023, W petitioned for divorce on the ground of H’s unreasonable behaviour (“the 1^st Divorce Petition”). Subsequently, by consent, pursuant to an order dated 16 October 2024, leave was given for W to commence a fresh petition for divorce on the ground of one-year separation. That was duly done on 12 November 2024.

7.  On 7 March 2025, W, by way of a summons, sought interim maintenance of $35,760 per month for herself and $40,000 (back-dated to 1 August 2023) for the 3 children.

8.  On 26 May 2025, the Master ordered H to pay a monthly sum of $15,000 as the interim-interim maintenance for the 3 children, commencing from 1 June 2025. H complied with this order up to September 2025 only and defaulted since.

9.  H was previously legally represented. On 18 August 2025, H filed a Notice to Act in Person. He has since then been representing himself in the proceedings.

10.  On 16 September 2025, W’s application came before the Master for determination. At the hearing, W was willing to lower the sum of interim maintenance for the 3 children to $25,000 (back-dated to 1 August 2023) and not to seek interim maintenance for herself. After hearing arguments from both sides, the Master made the IMO that (1) H is to pay W a monthly sum of $28,000 for the interim maintenance of the 3 children, the first payment to be made on 1 October 2025. H also has to pay the costs of the application.

11.  Dissatisfied with the IMO, H lodged this appeal.

Facts Not in Dispute

12.  I believe the following facts are not in dispute.

13.  When the parties were still a family, H used to pay W $25,000 to $30,000 monthly as household expenses. Starting from November 2017, H increased the sum to $60,000.

14.  When the parties separated in March 2023, H reduced the monthly sum to $30,000 and ceased payment entirely after W had moved out of the former matrimonial home in July 2023 while H continued to pay for some time, directly to the school, the children’s school fees. H, however, stopped this payment too as from September 2023. In other words, H has not been making any contribution for the maintenance of the children for over 2 ½ years.

15.  At the appeal hearing, W’s stance is that the IMO should stand. H declined to make any contribution on the ground that he has no ability to pay.

Master’s Appeal

16.  It is trite that an appeal from a master’s decision to a judge in chambers is a de novo hearing, and the judge will deal with the matter in question as if it came before him or her for the first time. A judge hearing an appeal from a master, however, is entitled, if he thinks fit, to adopt the master’s reasoning in his own judgment without setting out the reasoning himself; by so doing the judge does not fail to exercise the discretion confederated on him: see Hong Kong Civil Procedure (2026) at para 58/1/2.

Applicable Legal Principles

17.  W is seeking interim maintenance for the children only. The empowering provision is section 5 of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”). HH Judge Bruno Chan said the following in DX v LN (Maintenance Pending Suit & Costs Provision) (FCMC 7870/2014; 21 September 2015),

27. As the Wife’s present application is not just for her own reasonable needs but also those of the 2 children of the family whose care and control has earlier been granted to her, it would also be relevant to note that s 5 of MPPO gives the court much wider powers in dealing with financial provision for children both in terms of both the time for making orders which is before (hence maintenance pending suit) or on granting the decree of divorce, and the range of orders that the court can make including periodical payment, secured periodical payment, as well as a lump sum for the benefit of the children or for the purpose of enabling any liabilities or expenses reasonably incurred by or on behalf of the children before the making of the application, and that the court may exercise such orders from time to time, and to make further orders from time to time.

28. Furthermore, when considering such application albeit interim on behalf of the children, s 7(2) of MPPO requires the court to exercise those powers as to place the children, so far as it is practicable and just to do so, in the financial position in which the children would have been if the marriage had not broken down and each of the parties had properly discharged his or her financial obligations and responsibilities towards them. This would in my view be particularly relevant when the court comes to consider the standard of living which the children used to be able to enjoy and the parties’ proposed financial provisions for them.

(emphasis added)

18.  As to the approach to be adopted, the Court of Appeal in HJFG v KCY [2012] 1 HKLRD 95 summarised the established principles,

37.  The principles that have emerged over time to guide judges in matters of interim maintenance have been fashioned in the main to ensure fairness. This is well illustrated in the judgment of Nicholas Mostyn QC, sitting then as a deputy High Court judge, in TL v ML and Others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263, at 1289, in which, having looked at earlier authorities, he derived the following principles that speak specifically to fairness or are based on the need to ensure it. For present purposes, it is sufficient to cite the relevant principles without citing the judge’s reference to the source of those principles:

i.  The sole criterion to be applied in determining the application is ‘reasonableness’, which is synonymous with ‘fairness’.

ii.  A very important factor in determining fairness is the marital standard of living. This is not to say that the exercise is merely to replicate that standard.

iii.  In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long-term expenditure, more aptly to be considered on a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration.

iv.  Where the affidavit or form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources. In such a situation, the court should err in favour of the payee.

38.  Finally, it is to be noted that in applications for interim maintenance, when the amount to be paid is for a limited period only and not all of the evidence is necessarily before the court, it is not appropriate, nor indeed in most cases possible, for the court to conduct a detailed investigation into the finances of the parties. While, in order to determine what is or is not reasonable, some analysis is always required, that analysis can be conducted on a ‘broad-brush’ basis.”

(emphasis added)

19.  Further, Rayden and Jackson on Relationship Breakdown, Finances and Children (Lexis Nexis), said the following,

[11.78] There is no hard and fast rule, and no fixed proportion: each case depends on its own facts. The approach to maintenance pending suit should be empirical, and that 'in the ordinary sort of case the district judges who deal with these applications will have to take a broad view of means on the one hand and income on the other and come to a “rough and ready” conclusion', or take a 'broad brush' approach. The overriding consideration is the actual needs of the parties pending suit. Although the provisions of the MCA 1973, s 25 are expressed to arise only when the court is deciding whether to exercise its powers under s 23, 24 or 24A, the court may nonetheless have regard to the criteria listed in s 25 on an application for maintenance pending suit.

[11.79] In practice, as oral evidence is rarely given, it will be unusual for the court on an application for maintenance pending suit to be in a position to make findings of fact on issues in dispute sufficient, for example, to deal with conduct or allegations of non-disclosure. However, if it is demonstrated that the paying party has not performed his duty to make full and frank disclosure of his financial resources, then the court can take a broad and robust view of his means, and it does not have to accept and proceed on the basis of the assertions of the paying party as to his means and an inability to pay. The court can look at the reality of the situation and take into account voluntary funding from third parties (see TL v ML above).

(emphasis added)

Present Situation of the Parties

20.  W and the 3 children have returned to live with her parents at her maiden home since July 2023. This home is a small 2-bedroom public housing unit. The 3 children are attending the same school.

21.  Both parties were working full-time during the marriage. W is an administrative assistant and is currently earning $37,000 per month. W has been taking care of the children since separation.

22.  H is an IT professional. He received tertiary education in the United Kingdom and has a bachelor and a master’s degree. He, however, claims that he has not been so employed in the field for some time and is engaging in causal work in other fields only. H is currently living rent free with his parents at a Home-Ownership flat in Tseung Kwan O.

The Issues

23.  In determining the appropriate interim maintenance payable by H, I consider the following issues are relevant: (1) the living standard of the children; (2) the financial resources and needs of H; and (3) the financial resources and needs of W and the children.

The Living Standard of the Children

24.  As referred to above, both parties were in gainful employment during the marriage. When the eldest daughter arrived in December 2014, they started to hire a foreign domestic helper and H was paying W $25,000 to $30,000 as household expenses. At that time, the family was living at a flat of which H was one of the two registered owners. The other owner was his parent. I shall refer to this flat as “the MC Court”. When the twin sons were born in August 2017, the family hired an additional foreign domestic helper and moved to a larger apartment about 800 ft² large at a rental of $30,000 per month. At the same time, H increased his contribution to $60,000; this covered the rental and household expenses with any shortfall being met by W from her own income. In October 2019, the family moved to another apartment of 1,120 ft² large plus a car parking space at a decent neighbourhood in Kowloon (“the Kowloon Flat”) at a total monthly rental of $38,000. Further, instead of arranging the children to attend a free-school, they arranged them to attend a direct-subsidized school. W said she was given money by H to take the children for overseas vacation once or twice a year.

25.  It was in March 2023 that the marriage broke down. That was the time when the family moved back to MC Court and lived under the same roof briefly until W and the children moved away in July 2023.

26.  It is clear from the above that during most of the time of the parties’ relationship the family enjoyed a rather comfortable lifestyle. The living standard that the children enjoyed prior to the breakdown of the marriage, in my assessment, was slightly above an average middle class family. This continued to be the case until the family moved out of the Kowloon Flat and returned to MC Court that was much smaller. This signifies a decline in the living standard. While W did not frankly state the reason, I believe that was due to H’s deteriorating financial situation. I say this because there is evidence from W suggesting that was the case. W pleaded in her 1^st Divorce Petition that one of H’s unreasonable behaviours was “H and W always have disputes over H’s debt issues” (答辯人與呈請人常因答辯人債務問題發生爭拗。).[1] This down turn is also a factor that has to be taken into account in assessing the financial needs of the children.

The Financial Resources and Needs of H

27.  There is indeed not much disparity between the parties over the financial arrangement of the family during the marriage. In his affirmation dated 23 June 2025 (“the Affirmation in Opposition dated 23 June 2025”) (at that time H was legally represented), H agreed with W’s assertion that as from 2017 he contributed $60,000 as household expenses. In February 2021, he sustained injury to his hand during work. This led to his dismissal. He had to engage in litigation with his employer and finally was paid compensation $80,000. He, however, claimed that the IT circle was small, because of this litigation, he was not seen favourable by potential employers; he was not able to return to his previous job as an IT professional. In any event, he was not able to cope with the job due to his injury. He was forced to engage in some casual work making about $7,500 per month.

28.  H said in the Affirmation in Opposition dated 23 June 2025 that at the relevant time, he had to rely on loans to keep the family running. As at March 2023, his debts were as much as $3 million. When he could not afford further, the family had to move out from the Kowloon Flat and returned to the MC Court that was rent-free and much smaller.

29.  In my view, it is hard to believe in H’s assertion regarding the reason why he was not able to return to the IT filed. There are simply no particulars from H such as his attempts to look for similar jobs in support of his assertion. Further, it is undisputed that he was able to secure a contract employment for a few months in 2023, making $60,000 per month. I consider H’s claim that the litigation and his injury have prevented him from returning to his job is a mere say-so.

30.  H’s claim that he has been earning $7,500 per month is also unsupported by any evidence or particulars. The business registration of his 2 unincorporated businesses simply cannot support the amount of earnings that he claimed to have been making. Common sense also informs me that $7,500 is incredibly low for an educated, able-bodied person such as H.

31.  H applied for bankruptcy and was granted the order on 2 September 2025. That happened before the substantive hearing before the Master but not a single piece of document regarding his bankruptcy petition or his liabilities was produced. At the hearing before this court, H could not be more precise apart from mentioning his liabilities were as much as $4 million to $5 million of which $3 million odd were owed to his parents and the remaining owed to banks.

32.  H’s Form E dated 3 October 2024 disclosed that he had bank loans of about $1.2 million. Then 7 months later, in the Affirmation in Opposition dated 23 June 2025, H said as at March 2023 his debts were well over 3 million. It was at that point he decided to move out from the Kowloon Flat.[2] He then further said that as at 23 June 2025, his debts owed to banks had reduced to $1.104 million, ie $90,000 less.[3] That was the time when H alleged he was making roughly about $7,500 per month. He explained in court that the reason for the drop in liabilities was that he had borrowed from his parents. He made use of his parents’ loans to repay loans from banks.

33.  Ms Lee was correct to have pointed out that according to H’s 1^st Form E of 3 October 2024, he had already transferred his interest in the MC Court to his mother on 1 November 2023 for repayment $1.9 million loans that were advanced to him from 2021 to November 2023; and on 29 April 2024, he had also transferred his interest in another property to his parents for the repayment of $722,000, being loans advanced to him as from December 2023. Therefore, according to H, he had already repaid his parents $2,622,000. H did not report having any liability owed to his parents in the 1^st Form E, the logical conclusion one could arrive at is he only had debts owed to banks. It is incumbent upon H, as part of his duty to make full and frank disclosure, to explain clearly why and how he still owed his parents $3 to $4 million odd; in particular, it should not be forgotten that he ceased making any contribution for the living of W and his children, that he claimed in his Affirmation in Opposition dated 23 June 2025 [4] and the latest Form E that he only needed $7,500 per month as living expenses.

34.  Looking at the events chronologically, it appears that H’s self-engineered bankruptcy was a response to the present proceedings. H mentioned at the hearing before this court that the Official Receiver had not been in touch with him yet. For the purpose of the present application, H’s bankruptcy, put at its highest, has marginal relevance only. What is material here is H’s earning capacity and his unshirkable legal responsibility towards his children.

35.  Leaving H’s alleged liabilities aside, it is clear that H has the qualifications and experience required to return to his previous job. His last job gave him $60,000 per month. I reject H’s allegation that he has been earning a humble sum of $7,500 only. I have no doubt that H has an earning capacity way much higher than that. I assess he has the ability to earn $60,000 per month.

36.  There is undisputed evidence that H received financial assistance from his parents, at least in the past; that being the case, the court may need to consider the if the Third Party Financial Assistance principles set out by the Court of Final Appeal in KEWS v NCHC (2013) 16 HKCFAR 1 are engaged. However, there is some evidence suggesting that his parents’ financial assistance was only available to H when he was jobless. Since I have arrived at the conclusion that H’s financial resource is $60,000 per month, it is not necessary to deal with KEWS v NCHC principles at this stage.

H’s Financial Needs

37.  As mentioned above, H is currently living with his parents. He stated in his Affirmation in Opposition dated 23 July 2025 that his monthly needs are $7,500 only. This was confirmed by H at the hearing and was not met with challenge by W. I accept this is what H needs .

W and Children’s Financial Needs and Resources

38.  W works as an administrative assistant earning $37,000 per month. On the top of this, on most of the months she was in receipt of $3,000, being the financial assistance from the Government’s Student Finance Office; hence, a total receipt of $40,000 at her disposal.

39.  W’s 1^st Form E dated 16 April 2024 (“1^st Form E”) stated that her total monthly expenses amounted to $56,110, of which $16,110 were general expenses, $13,900 were personal expenses and the balance $26,100 being children’s expenses. At that time, H was still paying the children’s monthly school fees of $2,318.

40.  In her Supporting Affirmation dated 7 March 2025 (“the Supporting Affirmation”), W claimed her total expenses increased to $77,178, the breakdown of which is as follows.

General Expenses:	$16,860
Personal Expenses: (including $10,000 repayment of loans)	$23,900
Children’s Expenses:	$36,418
Total:	$77,178

41.  In her latest Form E dated 10 September 2025, she said her total monthly expenses were $61,177.

42.  W said in the absence of any maintenance from H, she had to rely on credit card facilities and a loan from a friend in order to make ends meet. She reported in her 1^st Form E of 16 April 2025 that her liabilities were about $393,000. In the Supporting Affirmation, the debts were said to have increased to about $760,000.[5] The amount further went up to $913,000 on 10 September 2025 in her latest Form E.

43.  W further affirmed in the Supporting Affirmation that she had to pay a minimum sum of around $39,000 per month. Significantly, I noticed that W did not include this sum or indeed any sum as part of her expenses in the 1^st Form E and the latest Form E. I sought clarification from Ms Lee accordingly. The reason is simple. If W has $40,000 per month at her disposal, after repaying $39,000, she would have a meagre $1,000 for living expenses only. Yet, at the same time, I noticed W’s bank balance remained roughly the same (about $12,000). One simply could not fathom how W could have survived. Ms Lee somehow gave the explanations that W borrowed further from banks, that in fact W did not repay as much as $39,000 and that she had been in receipt of financial assistance from her younger brother. When I was deliberating on this judgment, I realized that what escaped everyone’s eyes during the discussion was that there was a small line in the “Table of Expenses” set out at paragraph 31 of W’s Supporting Affixation (see [40] above) that she had included $10,000 (and not $39,000) for repayment of loans as her personal expenses. It is unknown why W failed to include this sum in her 2 Form Es. It is incumbent upon her and her solicitors to ensure that a clear and correct financial profile was presented. The omission is material - if $10,000 for repayment of loans is added to the 2 Form Es, the total expenses would be consistently around $70,000 per month.

44.  Another significant point is that the financial assistance from W’s younger brother was never mentioned before. Ms Lee, as counsel, was not allowed to give evidence from the bar table. Same as H’s situation, the “financial assistance” from W’s younger brother could be a financial resource for W. On that view, W also failed to make a full and frank disclosure of her financial situation in that she understated her financial resource. It has to be emphasized that the duty to make full and frank disclosure applies with equal force to a recipient or a payee. The court would not be slow to sound out its disapproval.

45.  With the conclusion I have come to, I find W has financial resource more than she admitted in evidence. I could not be more precise due to W’s non-disclosure.

46.  I now turn to W and the children’s expenses. I have assessed that the children’s living standard used to be somewhat above an average middle class family and have come to the view that when the parties’ relationship was drawing to an end the family’s financial situation deteriorated. The parties chose to place the children to study in a school that is not free; presumably this entails more miscellaneous expenses and extracurricular activities. I acknowledge the current living condition is far from ideal. W and the children, together with the paternal grandparents, have been living in a cramped public housing unit that is not meant to house them. Notwithstanding this, W sensibly has not included a notional rent for alternative accommodation in her claim. In the meantime, they have to bear with the situation. Doing the best I can and taking a board brush approach, I assess the children’s immediate and reasonable needs as follows,

General

Item	Amount (HK $)
Utilities (electricity, gas, rates, telephone & water)	750
Food	8,000
Household expenses	1,200
Domestic helper(s)	6,610
Total monthly household expenses	HK$ 16,560

Personal

Item	Amount (HK $)
Meals out of home	2,500
Transport	1,500
Clothing / Shoes	1,000
Personal grooming (including haircut and cosmetics)	1,000
Entertainment / presents	1,000
Holiday	1,000
Medical / Dental	400
Contribution to parents	3,000
Repayment of loans	10,000
Others (specify)
Total monthly personal expenses	HK$ 21,400

Children

Item	Amount (HK $)
School fees	2,320
Extra tuition fees	10,000
School books and stationery	33
Transport to school (including school bus)	1,600
Medical / Dental	1,000
Extra Curricular Activities	4,000
Entertainment / presents	3,000
Holidays	3,000
Clothing / Shoes	3,000
Insurance premia	1,630
Lunches and pocket money	1,000
Other Transport	1,000
Uniform	500
Others (specify)	1,300
Total monthly expenses for children	HK$ 33,383
Total Monthly Expenses	HK$ 71,343

47.  I assess W and the children’s total monthly expense at $71,343.

48.  The children’s share of general expenses is $12,420 ($16,560 ÷ 4 X 3). There is no reason why the repayment of $10,000 should not be included as children’s expenses. Their share therefore is $7,500 ($10,000 ÷ 4 X 3). The children’s total monthly expenses are therefore $53,303 ($12,420 + $7,500 + $33,383). I round it up to $53,400.

Amount H has to pay

49.  I have found that W has financial resources more than $40,000 that she reported and that H has an earning capacity of $60,000 per month. I give consideration to the facts that in the past H always took up a major share in maintaining the children, and that H continued to contribute $30,000 as household expenses from March 2023 to July 2023 even when he was out of job and engaging litigation with his former employer. I also need to consider the fact that H ceased contribution entirely as from August 2023.

50.  With the findings that the total monthly receipts of H and W are at least $100,000 plus ($40,000 plus from W and $60,000 from H). Doing the best I can, in fairness to both parties, I consider that H should be responsible for 2/3 of the children’s expenses, ie $35,600 per month ($53,400 X 2/3). This is to be backdated to 1 October 2025. From October 2025 to March 2026 are 6 months, this gives a total sum of $213,600 ($35,600 X 6 months). This sum has to be paid over a period of 15 months (ie $14,240 per month). In other words, starting from 1^st April 2026 H has to pay $49,840 ($35,600 + $14,240) as the children’s interim maintenance for 15 months, ie up to June 2027. As from 1 July 2027, the monthly interim maintenance returns to $35,600.

Costs

51.  It is abundantly clear that all along H has been trying his utmost to evade his responsibility to his children. He should recognise that this would inevitably be met with stern disapproval of the court. W has been successful in this appeal and the application before the Master. There is no reason why costs should not follow the event. I make an order that the costs of the application, including all costs reserved, be borne and paid by H, to be taxed if not agreed. W’s own costs to be taxed in accordance with Legal Aid Regulations.