MICHELLE CHEN SHAW v. KYLE ARNOLD SHAW JR

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2499 OF 2000

(ON AN INTENDED APPEAL FROM FCMC 2538/1999)

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JUDGMENT

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Hon Leong JA (giving the judgment of the Court):

1. The petitioner Michelle Chen Shaw and the respondent Kyle Arnold Shaw Jr were wife and husband. They married in 1992. Prior to the marriage they had been living together intermittently for different periods of time. They had no children by their marriage but they adopted a daughter Kelly who is now aged 17 and the adoption was legalised in March 1997. The adoption order was made by the Taipei Family Court. The marriage lasted until 1999 when the wife petitioned for divorce and obtained a decree nisi on 12 April 1999.

2. In the wife's application for ancillary relief and the husband's claim for a lump sum payment from the wife, H. H. Judge Carlson on 30 December 1999 ordered the husband to make a lump sum payment of HK$440,000 to the wife to be paid over a period of 8 months at HK$55,000 per month. In addition, the Judge ordered the husband to pay US$43,218 to the Sharp Corporation as his contribution towards the wife's liabilities to the Sharp Corporation. The husband was also ordered to pay the arrears of rent on the wife's flat at Botanic Terrace as at 31 December 1999. The wife's application for ancillary relief was ordered to stand dismissed upon payment by the husband of the amounts specified in the order. The husband's claim for a lump sum was dismissed. The wife now applies for leave to appeal against such orders.

3. Both parties are professionals in the finance and banking field and both possess high academic qualifications. After their marriage, the husband operated his own independent financial consultancy company holding 50% shares and the wife's brother, the intervenor in these proceedings, held the other half. In April 1993, the husband and wife moved to Shanghai where the husband worked for Tudor Investment Corporation of New York until 1996. The Judge found the wife did not make any valuable contribution to the husband's work during his employment with Tudor. During their stay in Shanghai, three properties were purchased. One was purchased by Tudor in the wife's name and the other by the husband. The Judge found the wife made no contributions to these purchases. The third one was also purchased in the wife's name and this was used as the parties' home. There was an outstanding mortgage in respect of this last property.

4. The parties left Shanghai and returned to Hong Kong in March 1996 and the wife started a company called Cambridge Investment Management Ltd to trade in Hong Kong stocks and shares. They moved to live at Crown Terrace in Hong Kong. Prior to their departure from Shanghai, the wife claimed that she sold the two properties in Shanghai to her brother to release funds for them to invest through Cambridge Investment Management Ltd in the Hong Kong stock market. The Judge found that there was no evidence to show that the wife's brother had passed to the wife funds for investment in the Cambridge Investment Management Ltd. The Judge also found the purported conveyances by the wife to her brother of the two properties in Shanghai were a sham.

5. In October 1997, the husband left the matrimonial home at Crown Terrace and lived elsewhere but he continued to pay the rent for the premises at Crown Terrace. In July, 1998, the wife moved to her present address at Botanic Terrace, the lease for which was jointly signed by the husband and the wife.

6. After examining the schedules showing the amount of investments by the parties and the funds held by them respectively, the Judge found the wife's gross assets are US$1.32 million which included the two properties in Shanghai valued at US$620,000 and approximately US$300,000 investment in a technology fund. The wife is now unemployed and lives on savings and borrowing from friends and relatives and there are arrears of rent on the premises at Botanic Terrace.

7. The Judge found the wife's liabilities included the legal costs of these proceedings totalling US$943,402 and the overdue rent on the premises in Botanic Terrace in the amount of HK$256,000. The wife also owed to the Sharp Corporation US$43,218 but the Judge declined to have regard to the excessive drawings by the wife from the accounts of her brother because he found that the brother had not proved that the funds held by him were his. The wife's claim of a further liability of US$490,923 due to her brother was also rejected.

8. The husband's financial position which the Judge had found is that he had a net amount of US$1,003,592, the majority of which was for investing in a fund which the husband had created jointly with his partners. The husband's liabilities, the Judge so found, included HK$1 million for his costs in these proceedings and his obligations under the lease for the premises in Botanic Terrace.

9. As regards their adopted daughter, the Judge found that she had never depended on either husband or the wife for maintenance and it was her natural parents who had been financially supporting her. The Judge also found that she had never lived with the parties for any proper period of time after her adoption which was to help her to go to university in the United States.

10. The wife though unemployed at present, is not lack of employment potential and in fact, her evidence was she would seek employment after the conclusion of these proceedings.

11. The Judge also had regard to the behaviour of the parties prior to the divorce and their respective contributions to the marriage and their responsibilities. In short, the Judge having regard to all the factors required to be considered under s. 7 of the Matrimonial Proceedings and Properties Ordinance and all the circumstances of the case, concluded that a clean break would be appropriate. He regarded that the wife, in view of her experience and contacts and that a brighter prospect was dawning in the Asian economies, would take about 8 months to rearrange her life and to find new accommodation and new employment. The Judge concluded that during this period the husband should provide her with maintenance.

12. The Judge accordingly made the orders the wife now seeks to appeal against.

13. The wife's proposed grounds of appeal in a nutshell, relate to the Judge's assessment and analysis of the evidence adduced by the parties respectively relating to their investments and financial positions, namely their assets and liabilities. A more substantive ground was that the Judge had prior to the commencement of the hearing announced that the likely award would not be more than 10 months maintenance which was much lower than the amount negotiated by the parties but in the end, the Judge awarded to the wife only 8 months maintenance. The wife said this intimidated her and weakened her bargaining power and eliminated the prospect of further negotiation for settlement. However, as admitted by the wife in her grounds of proceedings, there is no record of such announcement by the Judge prior to the commencement of the trial. The complaints in the remaining grounds are complaining in effect that the Judge did not assist the wife who was acting in person, that the Judge had committed procedural error and that the Judge had wrongfully exercised his discretion.

14. Suffice to say, assessment of the weight of the evidence is a matter for the Judge and nothing is shown that it may be argued that the Judge had failed to consider all the relevant evidence or otherwise failed to have regard to matters he should have regard to or to have taken into consideration irrelevant matters. The applicant had not shown that it may be argued that the Judge had gone wrong with his decision in making the orders. The application for leave to appeal is dismissed. There is no order to costs.