FSM v. BDS AND OTHERS

FCMC 12749/2016
[2018] HKFC 1

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 12749 OF 2016

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J U D G M E N T
(Maintenance pending suit and variation of interim interim maintenance)

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The Application

1.  By the summons dated 7^th February 2017, the petitioner wife (“the Wife”) applied for herself and for the two children of the family, both aged 8 now (“the 2 Children”), against the 1^st respondent husband (“the Husband”):-  

(a) for maintenance pending suit in the monthly sum of HK$127,733 and asked for the payment be backdated from 4^th October 2017;

(b) that the Husband shall continue to pay directly for the rental and carpark of the Wife’s residence, salary of the domestic helper, the transportation expenses to school of the 2 Children, the school fees of the 2 Children and the insurance premium for the Wife and the 2 Children (ie. total sum of about HK$66,934 (HK$31,800 + HK$6,000 + HK$2,668 + HK$23,900 + HK$854 + HK$1,712)); and

(c) costs.

2.  The Husband opposed to her application and filed the affirmation in opposition on 2^nd May 2017 (“the Husband’s 1^st Affirmation”).

3.  By the order of His Honour Judge I. Wong dated 27^th March 2017, it was ordered that the Husband do pay an interim interim maintenance pending suit to the Wife in the monthly sum of HK$50,000 and to the 2 children in the monthly sum of HK$50,000 respectively.

4.  At the hearing for the application for maintenance pending suit on 1^st June 2017, both the Husband and the Wife were legally represented by counsel.  As an open offer, the Wife proposed that the Husband do pay a monthly total sum of HK$158,501 for the Wife and the 2 Children as maintenance pending suit, with the Wife then agreeing to refrain from asking for any amount to be backdated. The Husband opposed to the Wife’s proposal and offered to continue paying a monthly total sum of HK$100,000 for the Wife and the 2 Children as maintenance pending suit, which was not accepted by the Wife.  

5.  During the argument hearing, counsel for the Wife, Ms Kwan, submitted to court and provided to Mr. Wong, counsel for the Husband, further written notes of hearing and tables (of up to 15 pages) supplementing her written submissions previously filed, which further explained the Wife’s stance that the Husband has the ability to pay, the allegation that the Husband has dissipated family funds and the Husband’s non-disclosure of his finance position.

6.  Submissions could not finish on 1^st June 2017 and the case was adjourned part-heard to 9^th August 2017.  During the adjourned period, the Husband applied for legal aid and the Court received the memorandum of notification of an application for legal aid dated 5^th July 2017. On 25^th July 2017, the Husband filed the Notice to Act in person. 

7.  On 8^th August 2017, that is one day before the part-heard hearing, the Husband took out an application for variation of interim interim maintenance pending suit (“the Husband’s Summons”) and filed an affirmation in support (“Husband’s 2^nd Affirmation”).  The Husband asked for the monthly interim interim maintenance to the Wife be varied from HK$50,000 to HK$2,000, and that for the 2 Children be varied from HK$50,000 to HK$20,000.

8.  During the 2^nd day of the hearing, the Husband attended the hearing acting in person and also confirmed with the court that the legal aid application had been refused.  Parties agreed that no legal aid stay would be needed and agreed that the court to hear the Husband’s Summons together without the need to file and serve any further affirmations. 

Background of the case

9.  The parties were married on 10^th December 2006.  The 2 Children both aged 8 now, were born in their wedlock, and are now attending the French International School.

10.  The Wife is now aged 40.  She has been a full-time housewife since about 2008 and she is financially dependent on the Husband.  The Husband is now aged 45.  He used to be employed by an international assets management limited company and a family trust company.  He has later become an entrepreneur and is now the director of 5 limited companies (“the 5 Companies”).  Since about 28^th March 2017, the Husband has been employed by a company as a Director of International Business, earning a monthly salary of HK$33,750.  The Husband is also a part-time model for advertisements.

11.  During the marriage, the family used to live at a rented flat at the Pacific Palisades of Braemar Hill Road (“the Former Matrimonial Home”).  The parties separated in February 2016.  In about November 2016, the Wife and the 2 Children moved to reside at the Island Resort at Siu Sai Wan. 

12.  The Wife initiated divorce proceedings on 4^th October 2016 on grounds of unreasonable behaviour.  Decree Nisi was granted on 14^th December 2016.

13.  By the order of the court dated 27^th March 2017, it was ordered that the Husband do pay an interim interim maintenance pending suit commencing 1^st April 2017 to the Wife in the monthly sum of HK$50,000 and to the 2 children in the monthly sum of HK$50,000 respectively.

14.  Although the Husband did not offer any undertaking to the court, Mr. Wong informed the court that by a letter from the Husband’s solicitors dated 5^th April 2017, the Husband’s solicitors had confirmed that the Husband would continue to make the following payments directly:- 

(a)  rental and carpark of the Wife’s residence (HK$31,800);

(b)  salary of the domestic helper (HK$6,000);

(c)  the school bus fees of the 2 Children (HK$2,668);

(d)  the school fees of the 2 Children (HK$23,900); and

(e)  the car expenses of the Wife (HK$2,000).

15.  The total of these 5 items amounted to HK$66,368.  In the said letter, the Husband proposed to deposit the remaining amount of HK$33,632 to the joint account of the parties on the 1^st day of each and every month until further order of the court.

16.  It is the Wife’s stance that the 5 items that the Husband had agreed to pay directly do not cover provision to the Wife for basic items such as food or household expenses.  The remaining amount of HK$33,632 could not cover all the expenses of the Wife and the 2 Children.  According to the Wife, she has been paying the difference with her own savings and borrowings from her mother, relatives and friends.  However, she has already exhausted her savings and can no longer borrow from relatives and friends further.  Therefore, the Wife has no options but to apply for legal aid and to take out the present application.

The legal principles

17.  Under section 3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“the MPPO”), the court may order either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of presentation of the petition or the making of the application and ending on the date of the determination of the suit, as the court thinks reasonable. 

18.  The legal principles governing any maintenance pending suit application require the court to balance the reasonable needs of the applicant spouse (and the concerning children where applicable) against the paying spouse’s ability to pay by using a broad brush approach.  In HJFG v KCY [2012] 1 HKLRD 95, the Court of Appeal has summarised the established principles as follows:-

“33. Jurisdiction to award maintenance pending suit to a spouse is statutory, being governed by the provisions of s.3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. By that section the court is given a discretion to make an order requiring either party to the marriage to make to the other such periodical payments for his or her ‘maintenance’ as the court thinks ‘reasonable’, subject to the condition that the duration of any such order is limited to the period of what may broadly be called the divorce litigation.

34. By definition, therefore, maintenance pending suit is restricted to payments which constitute ‘maintenance’, which are reasonable in the circumstances and which will endure for no longer than it takes to determine the divorce litigation. ‘Maintenance’ is a broad concept. I do not seek to define its exact meaning but it seems to me that it must be restricted to those payments necessary to meet the recurring costs of living at whatever standard of living is appropriate. That being the case, no matter how great the wealth of the parties and how unevenly distributed that wealth may be at the time an application for interim maintenance is made, the court has no jurisdiction to make orders which for all practical purposes result in a form of pre-trial capital rebalancing. In the present case, the Judge recognised the long-established approach of looking to the ‘immediate and reasonable needs’ of the wife and son.

35. As to the amount of maintenance pending suit that may be paid, the Ordinance provides only that it must be ‘reasonable’, that is, having regard to the circumstances of the case, that it must be fair.

36. An important factor in determining fairness is a consideration of the martial standard of living. In this regard, each case must be considered according to its own circumstances. It is not simply to be assumed that great wealth equates to great extravagance. Some married couples who enjoy great wealth spend with comparative modesty and with a discipline born of discretion, others enjoy consumption on a grand scale.

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 Judge, in TL v ML [2006] 1 FLR 1263, 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:

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

(b) 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.

(c) In every maintenance pending suit application there should be a specific maintenance pending suit bedget 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.

(d) 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.”

19.  It is also well established that in ancillary relief proceedings, which include maintenance pending suit, there is a duty on both parties to make full and frank disclosure of the relevant materials to enable the court to exercise its discretion to make the order, and if the court is of the view that the evidence disclosed by a party is deficient, inferences may be drawn by the court from such defective disclosure against that party when making the appropriate order.

Issues of the case

20.  Counsel for both sides agree the following are the issues for the court’s determination :-

(a)  How much maintenance pending suit to the Wife and to the 2 Children should be paid? (Issue 1)

(b)  Can the Husband afford to pay the sum? (Issue 2)

(c)  In the event that MPS is ordered, what date should that part of the order take effect from? (Issue 3)

21.  In the Husband’s Summons, he asks for variation of monthly interim interim maintenance to the Wife from HK$50,000 to HK$2,000, and that for the 2 Children from HK$50,000 to HK$20,000.  As the maintenance pending suit is yet to be decided, the issues to be considered and decided by the court for the Husband’s Summons are basically the same.

The wife’s case

22.  It is the Wife’s case that prior to the parties’ separation in February 2016, the Husband had been providing the following monthly to the Wife and the 2 Children :- 

(a) Monthly deposit of HK$23,000 (ie. HK$17,800 for the family expenses and HK$5,200 for the Wife’s personal expenses) into the joint account of the parties;

(b) Rent of the Former Matrimonial Home and car park space in the total sum of HK$36,000 per month, plus utilities of HK$5,320 per month and domestic helper of HK$5,950 per month;

(c) All children expenses including school fees, tuition, extra curricular activities and insurance premium in the sum of about HK$92,051 per month;

(d) The Wife’s insurance premium at HK$10,250 per year (ie. about HK$854 per month);

  (adding (a) to (d): a total monthly sum of HK$163,175)

(e) 2 credit cards with total credit limit of HK$100,000 per month; and

(f) Octopus card with automatic add-value service.

23.  According to the Wife, since about November 2016, the Husband has only continued to pay the following monthly :-

(a) The rent of the new apartment in Siu Sai Wan for the Wife and the 2 Children in the sum of HK$29,000, plus salary of the domestic helper at HK$6,000 per month;

(b) The school fees of the 2 Children in the total sum of HK$23,900 per month; and

(c) The 2 Children’s insurance premium in the sum of HK$1,712 per month.

  (adding (a) to (c): a total monthly sum of HK$60,612)

24.  Since the order dated 27^th March 2017, the Husband has been paying a monthly sum of HK$100,000 to the Wife and to the 2 Children, in the manner as explained in paragraphs 14 and 15 hereinabove.

25.  According to the Wife, since she and the 2 Children had moved out from the Former Matrimonial Home and started residing at the present address in Siu Sai Wan, she had reduced the expenses.  The Wife had updated the expenses for herself and for the 2 Children in the supporting affirmation, which added up to a total of HK$191,045 per month (with detailed breakdown explained in paragraph 34 hereinbelow). 

26.  It is the Wife’s stance that the expenses are reasonable, with reference to the standard of living they had enjoyed before the Husband and Wife separated. 

27.  In the alternative, the Wife proposed that on the basis the Husband continues to pay for all the items he has always been paying in the total sum of about HK$66,934 (with details referred to paragraph 1(b) hereinabove), the Wife asks for a sum of HK$127,733 to be paid to her as maintenance pending suit for herself and the 2 Children.

28.  According to the Wife, the following should be taken into consideration for the present application :- 

(a) the 5 Companies which the Husband being a director;

(b) the Husband’s expenses are much more than his alleged income and there are sums of HK$100,000 to $700,000 deposited into the Husband’s bank account by the Husband’s mother;

(c) the Husband’s income from his part-time work as a model;

(d) the Husband’s relationship with his mistress Madam Yang and the birth of his illegitimate daughter with Madam Yang in November 2014;

(e) the Husband had sold a property at Kowloon Tong Mansion in 2014 (“Kowloon Tong Property”), which he owned with his step father, ie. the 3^rd Respondent, as a joint tenant.  The Kowloon Tong Property was sold within 3 years preceding the date of petition for divorce and according to the Wife, the Husband did not account for the proceeds of sale.  The date the Kowloon Tong Property was sold was the same as the date another property at Hong Lok Yuen (“the Hong Lok Yuen Property”) was purchased with the Husband’s mother (ie. the 2^nd Respondent) and the 3^rd Respondent being the joint tenants;

(f) the Husband’s material non-disclosure about his finance. 

The husband’s case    

29.  The Husband’s case, in essence, is that he does not currently earn any money from the 5 Companies. He worked as a part-time model before, but as he was not very famous, he only earned about HK$10,000 to HK$15,000 for each job and would have about 1 to 2 jobs throughout the year.  He is now employed with a monthly salary in the sum of HK$33,750, with no bonus or double pay, and that is his only monthly income at the moment.  According to the Husband, he only supports his child with Madam Yang in the PRC at a minimum level. 

30.  It is the Husband’s stance that as he only had a modest income at the material times, and there was no way he could afford to pay the purchase price of the Kowloon Tong Property in 2011 and the subsequent purchase of the Hong Lok Yuen Property in 2014, which the Wife alleged the Husband has beneficial interest in.

31.  On the 1^st day of the hearing on 1^st June 2017, it is the Husband’s stance that he was not able to pay more than HK$100,000 per month as maintenance pending suit for the Wife and the 2 Children, and through his counsel, the Husband’s view is that the monthly sum of HK$100,000 is reasonable and affordable.    

32.  On the part-heard hearing on 9^th August 2017, the Husband said that he could not even afford to pay HK$100,000 per month as he had used up all his money.  With his monthly salary of HK$33,750, he could only afford to pay a total sum of HK$22,000 to the Wife and the 2 Children, as stated in the Husband’s Summons and the Husband’s 2^nd Affirmation.

33.  The husband further submitted that the court should take into consideration the following matters :-

(a) the Wife’s educational background and her earning capacity;

(b) the Wife should have looked for a job and ease the financial burden of the family;

(c) the Wife and the 2 Children should have lived at the home of the Wife’s parents in order to save money;

(d) the Husband had asked the Wife to look for a job in about 2013 when there was financial difficulties of the Husband, but the Wife refused;

(e) the Wife had withdrawn cash from the bank account jointly held by the parties in the sum of about HK$343,557.34;

(f) there was no non-disclosure of the Husband.

How much maintenance pending suit to the Wife and to the 2 Children should be paid? (Issue 1)

34.  The Wife has provided for the expenses breakdown in her Form E filed on 25^th November 2016, with the total expenses being HK$207,701 (general expenses of HK$79,450 + personal expenses of HK$36,200 + children expenses of HK$92,051).  She has further provided the updated breakdown in her affirmation in support filed on 10^th April 2017, as follows :-

For general expenses:-

Items	Amount HK$
Rent	31,800
Utilities	5,320
Food	18,000
Miscellaneous household expenses	6,800
Car expenses (gasoline of HK$4,000, tunnel and parking fees of HK$2,000 and insurance, licence fees and maintenance of HK$1,880)	7,880
Domestic helper	6,000
Total:	75,800

For personal expenses:-

Items	Amount HK$
Meals out of home	3,200
Transportation	2,500
Clothing / Shoes	2,400
Personal grooming	5,520
Entertainment	3,200
Holiday	3,760
Medical / Dental	6,000
Insurance premia	1,364
Total:	27,944

For children expenses:-

Items	Amount HK$
School fees	23,900
Extra tuition fees (Mandarin class of HK$7,000, French class of HK$2,500 and Chinese and Maths class of HK$2,900)	12,400
School books and stationery	1,600
Transport to school (including 2,700 school bus fees)	5,450
Medical / Dental (General medical and dental of HK$1,000 and speech therapy of HK$4,000)	5,000
Extra curricular activities -      Piano class and related expenses of HK$4,095 -      Ballet class and related expenses of HK$2,295 -      Tennis class of HK$2,360 -      Football class and training of HK$1,135 -      Drama class and related expenses of HK$1,785 -      Olympus maths training of HK$3,000	14,669
Entertainment	7,000
Holidays (about 4 holidays per year)	10,000
Clothing / Shoes	4,500
Insurance premia	1,712
Lunches and pocket money	400
Other transport	500
Uniform	170
Total:	87,301

35.  The updated total amount of expenses for the Wife and the 2 Children is HK$191,045 (HK$75,800 + 27,944 + 87,301).

36.  The Wife explained that these are reasonable amounts, with reference to the standard of living before the parties separated.  According to the Wife, the Husband had no problem financially in supporting the Wife and the 2 Children during the marriage.

37.  In the Husband’s 1^st Affirmation, he agreed that the family used to enjoy a very high living standard while he was working as an investment manager in an international assets management limited company and a family trust company between 2007 and 2010, and between 2010 and 2012 respectively.  While the Husband had been working to support the family financially, the Wife decided to cease working and become a full-time housewife to take care of the 2 Children with the aid of two maids initially when the 2 Children were younger (and later with 1 maid) and enjoy her personal life.

38.  According to the Husband, he explored different business opportunities in order to maintain the increasing monthly expenses of the Wife and the 2 Children, as he noticed that the limited income could not support the family in the long run. Therefore, between 2013 and 2017, the Husband decided to start up his own businesses with the connections that he built up while he was working as an investment manager.  However, it turned out that the businesses were not very successful and some of them even failed. 

39.  It is the Husband’s case that he had been asking the Wife to reduce the monthly expenses of hers and the 2 Children on one hand, and try to explore some new sources of income on the other hand, after the Husband quitted his job as an investment manager in about 2013.

40.  According to the Husband, the standard of living of the family had not been as high as alleged by the Wife, at least not after about 2013.  But the Husband did not deny that he has all along provided financially and sufficiently for the family as requested by the Wife and the 2 Children, and the Husband had agreed that the standard of living was not in issue for the present application. 

41.  For the present application, the court should not resolve factual disputes and should only take a broad brush approach in the determination of the reasonable sum with reference to the standard of living of the parties during marriage. 

42.  The educational background and earning capacity of both the Husband and the Wife will have to be investigated further in detail during the ancillary relief trial.  Whether the Wife should re-enter the labour market and find a job, especially when the 2 Children grow older, would no doubt be an area to look into during the ancillary relief trial.  But for the purpose of this application, with the Wife being a housewife since 2008 and the 2 Children are now aged 9, I accept, at the moment, that the Wife be a full-time housewife, assisted by a domestic helper.

43.  Whether the Wife and the 2 Children should move to live with the Wife’s parents would be another area that the trial judge has to investigate further and determine at the ancillary relief trial regarding the accommodation needs of the Wife and the 2 Children, which the court cannot resolve at this stage.  For the present application, I rule that the monthly rent to be paid is reasonable.

44.  Regarding the allegation of the Husband that the Wife had withdrawn cash from the bank account jointly held by the parties in the sum of about HK$343,557.34, the Wife has explained in her affirmation in reply filed on 22^nd May 2017 that there is nothing wrong to withdraw money from a joint account that the Husband had told the Wife that she could use the fund therein anytime for family expenses.

45.  There is no further evidence or supporting documents from the parties in relation to whether each of the items of expenses was reasonable or not.  Neither did the Husband or his Counsel made any specific comment or criticism about the Wife’s itemized expenses.  Ms Kwan asked the court to use the discretion, on a broad brush approach, to consider and rule on the reasonable sum.   

46.  The items of expenses provided by the Wife are estimates only and they are bound to vary from month to month.  The court can only rule on the reasonable and immediate needs, with reference to the standard of living during marriage on a broad brush approach, and to exercise discretion.  I notice that some items had been initially agreed to be paid by the Husband on the 1^st day of the hearing, which I would take that the Husband does not dispute they are reasonable items and reasonable sums.

47.  For general expenses, as the Husband had agreed to pay, in the open proposal, rental and carpark of the Wife’s residence in Siu Sai Wan in the sum of HK$31,800, the car expenses of the Wife in the sum of HK$2,000 and salary of the domestic helper in the sum of HK$6,000, I accept that those are reasonable expenses.

48.  I can accept utilities in the sum of HK$5,320 and miscellaneous household expenses in the sum of HK$6,800.

49.  About food under general expenses in the sum of HK$18,000, there is no breakdown as to how the Wife gets the figure.  With the Wife claiming meals out of home under personal expenses being HK$3,200 per month and the lunches and pocket money for the 2 Children only being HK$400, I rule that the reasonable sum for food under general expenses being HK10,000.

50.  About car expenses under general expenses in the total sum of HK$7,880, it is not in dispute that the family used to have a private car during marriage.  With the Wife and the 2 Children now residing at Siu Sai Wan, it is not unreasonable for the Wife to claim for car expenses as she has to drive the 2 Children.  According to the table of para. 15(a) of the Wife’s supporting affirmation, the car expenses are incurred mainly for driving the 2 Children.  That means other than taking the school bus, the Wife would be driving the 2 Children as well. 

51.  However, I notice that the Husband has agreed to pay HK$2,668 for the school bus fees for the 2 Children.  Having to drive the 2 Children to and from school, but not using or fully utilising the school bus service which the Husband has agreed to pay would be a waste of resources.

52.  Even if the Wife has to drive the 2 Children to and from school from time to time and also to drive them for extra-curricular activities, the car expenses and transportation expenses should not be as high as claimed by the Wife. 

53.  For the transportation to school under children expenses, the Wife claims HK$5,450, including school bus fees of HK$2,668.  The 2 Children are either going to and from school by school bus or driven by the Wife, I accept the reasonable sum of transport to school round up being HK$2,700.  I accept that other than the transport to school, there is the sum of other transport under children expenses in the sum of HK$500.

54.  Even if the car expenses are incurred mainly for driving the 2 Children, as the 2 Children also take school bus, the car expenses by the Wife should not be as high as HK$7,880.  It is noted that the Wife also claims HK$2,500 for transportation under personal expenses.  As a broad brush approach, I rule that the reasonable car expenses under the general expenses should be HK$4,000; with the Wife’s transportation expenses under personal expenses should be HK$1,000.

55.  For personal expenses, I rule the sum of HK$1,364 being insurance premia as reasonable.  I notice that the expenses for personal grooming is more than a double than the expenses for clothing / shoes.  I also notice that the Wife’s medical / dental expenses amounts to HK$6,000.  With no breakdown of items or further documents in support, and by adopting a broad brush approach, which the figures could be adjusted at the ancillary relief trial, I rule the reasonable and immediate needs of the Wife for meals out of home being HK$2,000; clothing / shoes being HK$2,000, personal grooming being HK$2,000, entertainment being HK$2,000; holiday being HK$3,000; and medical / dental being HK$3,000. 

56.  For the expenses for the 2 Children, the Husband had agreed to pay school fees in the sum of HK$23,900, school bus fees in the sum of HK$2,700 and insurance premia in the sum of HK$1,712, which I accept as reasonable items and reasonable amounts. 

57.  I accept lunches and pocket money in the sum of HK$400, other transport in the sum of HK$500 and uniform in the sum of HK$170.

58.  With uniform of the 2 Children in the sum of HK$170, and lunches and pocket money in the sum of HK$400 for the 2 Children, entertainment in the sum of HK$7,000 and clothing / shoes in the sum of HK$4,500 seem to be excessive.  I rule the reasonable and immediate needs for entertainment being HK$2,000 and for clothing / shoes being HK$2,000.  I also rule the reasonable sum for school books and stationery being HK$1,000. 

59.  For the expenses for holidays, as I have ruled the reasonable sum for the Wife being HK$3,0000 per month in average, the sum of HK$10,000 per month for the 2 Children seems to be excessive.  I rule the reasonable sum for holidays being HK$3,000.

60.  For the items of extra tuition fees, medical / dental and extra-curricular activities, as there is breakdown for these items and they had not been challenged or criticised, I accept the amounts stated by the Wife as reasonable.

61.  As a result, I rule the expenses of the Wife and the 2 Children as follows :-

For general expenses:-

Item	Amount HK$
Rent	31,800
Utilities	5,320
Food	10,000
Miscellaneous household expenses	6,800
Car expenses	4,000
Domestic helper	6,000
Total:	63,920

For personal expenses:-

Item	Amount HK$
Meals out of home	2,000
Transportation	1,000
Clothing / Shoes	2,000
Personal grooming	2,000
Entertainment	2,000
Holiday	3,000
Medical / Dental	3,000
Insurance premia	1,364
Total:	16,364

For children expenses:-

Item	Amount HK$
School fees	23,900
Extra tuition fees	12,400
School books and stationery	1,000
Transport to school (school bus fees)	2,700
Medical / Dental	5,000
Extra curricular activities	14,669
Entertainment	2,000
Holidays (about 4 holidays per year)	3,000
Clothing / Shoes	2,000
Insurance premia	1,712
Lunches and pocket money	400
Other transport	500
Uniform	170
Total:	69,451

62.  With the above individual items added together, the total sum is HK$149,735 (HK$63,920 + HK$16,364 + HK$69,451).  By adopting a broad brush approach, I apportion about half of the general expenses to the 2 Children and rule that the reasonable sum for the 2 Children being HK$100,000 and the reasonable sum for the Wife being HK$50,000.

Can the husband afford to pay the sum? (Issue 2)

63.  On the 1^st hearing on 1^st June 2017 when the Husband was legally represented, his counsel informed the court that he could not afford to pay more than HK$100,000 per month as maintenance pending suit for both the Wife and the 2 Children. 

64.  The Husband has provided for the expenses breakdown in his Form E filed on 8^th December 2016, with the total expenses being HK$106,250 (general expenses of HK$48,950 + personal expenses of HK$8,050 + children expenses of HK$49,250).   He has further provided his updated breakdown in the Husband’s 1^st Affirmation filed on 2^nd May 2017, as follows :-

Item	Amount HK$
Food	5,000
Public transport	2,000
Rent (living in mother’s house)	Free
Utilities	800
Mobile telephone plan	200
Clothing	1,500
Insurance payment	2,300
Medical expenses	200
Total:	12,000

65.  In the Husband’s 1^st Affirmation, he further explained that he was currently paying HK$100,000 to support the family as follows :-

Item	Amount HK$
Rental	29,000
Car park rental	2,800
Salary of domestic helper	6,000
Tuition	23,900
School bus fees	2,668
Fixed penalty and autotoll fees for Sabaru Forester	2,000
Sub-total:	66,368
Maintenance payable other than the above items	33,632
Total:	100,000

66.  On the adjourned part-heard hearing on 9^th August 2017 when the Husband acted in person, he said he could not even afford solicitors representing him. With his salary of HK$33,750 per month, he could not afford to pay the monthly sum of HK$100,000 that he previously agreed to pay.  According to the Husband, he could only afford to pay the total monthly sum of HK$22,000.

67.  In the Husband’s 2^nd Affirmation, he explained that the interim interim maintenance of a total of HK$100,000 was ordered by His Honour Judge I. Wong by a broad brush approach, considering that the Husband had some public trading stocks that worth approximately HK$700,000 in his stock account.  However, he would use up all his resources and he could barely have enough to pay up beyond July 2017.  According to the Husband, from August onwards, he could only be able to utilise his monthly salary in the sum of HK$32,250 (after deduction of MPF). 

68.  The Husband further explained that he could not retrieve any cash from Lab One Limited, one of the 5 Companies.  He emphasised that with his monthly salary, he could only afford to pay a monthly total sum of HK$22,000 to the Wife and the 2 Children. 

69.  It is the Wife’s stance that the Husband has much resources supporting his ability to pay and there is material non-disclosure of his finance.    

70.  Ms Kwan submitted that the court should consider the following regarding the Husband’s ability to pay :-

(a) Despite the Husband’s alleged financial difficulty, he purchased Chanel in the sum of HK$25,500 in August 2016.

(b) With reference to the table submitted by Ms Kwan on the 1^st day of the hearing, which summarises the cash flow of the Husband in his bank accounts, it is noted that there are more than HK$400,000 going into the HSBC account of the Husband and about HK$900,000 going into the BOC account of the Husband.

(c) The Wife questioned the reason why the Husband took on the present work with a monthly salary of only HK$33,750, with the background that the Husband used to earn much more in the past.

(d) The Wife is of the view that the Husband’s mother is a financial resource of the Husband.

(e) The Husband had removed money in the respective sums of HK$400,000 and HK$1,000,000 before adding the Wife to the jointly held bank account in October 2010.

(f) Despite the Husband’s alleged financial difficulty, he had transferred a total sum of RMB200,000 from 10^th August 2015 to 13^th January 2016 to Madam Yang, as shown in the statement of the BOC (China) account of the Husband.  Besides, on the Husband’s own admission in his Answers to the Questionnaires, sums of RMB80,000 and RMB 70,000 had been paid to Madam Yang in Nov 2015 and January 2016 respectively as repayment of her hospital fees and insurance for the daughter of the Husband and Madam Yang.

(g) From the end of 2015 and throughout the whole of 2016, the Husband had been dwindling funds.

71.  Besides, Ms Kwan also questioned the Husband’s allegation that no income was generated from the 5 Companies, gave examples that the Husband changed his Answers from the 1^st Questionnaire to the 2^nd Questionnaire, and also listed out in her written notes a number of the Husband’s questionable transactions in various amounts of several hundreds of thousands dollars. 

72.  I notice that there are a number of points raised by Ms Kwan that involve criticism of the credibility of the Husband.  I have reminded myself that at this stage, the court should not rule on substantive disputes of facts or credibility of the parties.  There should not be detailed investigation of the evidence regarding the finance of the parties, which should be left at the ancillary relief trial when the parties are given the chance to explain during cross-examination.  Instead, I should adopt a broad brush approach.  Notwithstanding that a broad brush approach is to be adopted, the court would still have to engage analysis on the basis of the evidence before it.

73.  Further, about the Husband’s ability to purchase the Kowloon Tong Property and the Hong Lok Yuen Property dated back in 2011 and 2014 respectively, and the Husband’s interest in those properties should be dealt with at trial for the preliminary issue, for which application had been already been made for the preliminary issue regarding the beneficial interest of those properties.

74.  Generally, for application for maintenance pending suit, it is not necessary to resort to the Questionnaire and Answer, as the court should be taking a broad brush approach.  But as the Questionnaires and Answers are already before the court during this hearing, I am entitled to consider the Answers which are now before the court, not for conducting detailed investigation, but to consider the application adopting a broad brush approach.

75.  According to the Wife, there is no full and frank disclosure of documents of the Husband, including the following :-

(a) In the 1^st Questionnaire, the Wife asked the Husband to provide BOC (mainland branch) statements since 2013.  The Husband only provided the print out from ATM for the past 2 years, as he “could not make it personally for the opening hours of the BOC branch in China” as explained in his Answer to Questionnaire.

(b) In the Questionnaire, the Wife asked the Husband to provide income proof, employment contract and tax return. The tax return of the Husband was not provided.

76.  Based on the evidence and documents before the court, not having to rule on the credibility of the Husband, I agree with Ms Kwan’s submissions that the Husband’s affidavit and Form E disclosure, including the provision of documents and information in his Answers is obviously deficient.

77.  Without disclosing those documents requested by the Wife, which may suggest that the Husband could have some other income, other than the monthly salary he now receives, especially in view of the background of the case and the past work experience of the Husband, adverse inference and robust assumptions could be drawn in relation to the Husband’s ability to pay.

78.  Leaving aside whether the 5 Companies are generating income for the Husband and whether the Husband had dwindled money, it is the Husband’s stance that he only earns a monthly income of HK$33,750.  However, it is trite law that the court is not confined to the mere say-so of the payer as to the extent of the his income or resources. 

79.  At the time the Husband’s 1^st Affirmation is filed on 2^nd May 2017, which is the affirmation in opposition to the Wife’s application to maintenance pending suit, the Husband has been receiving monthly salary of HK$33,750.  The Husband should know full well his financial position.  Yet, the Husband, through his counsel on the 1^st day of the hearing, offered to continue paying HK$100,000 to the Wife and the 2 Children.  The Husband should know full well that with his monthly income, he has to obtain money to continue paying interim maintenance for the family.  There is no substantial change of circumstances regarding the Husband’s finance, which he could not possibly anticipate, since he agreed to pay HK$100,000 per month back in June 2017.  It is surprising that shortly before the adjourned hearing, the Husband filed his 2^nd Affirmation, saying that he could no longer afford even the amount of HK$100,000 he had earlier agreed to pay.

80.  Regarding the Husband’s ability to pay and his financial resources, the support from his mother (ie. the 2^nd Respondent) could not be ignored.  From the Husband’s Form E and Answers to Questionnaires, he agreed that his mother has been assisting him with the family expenses in various sums.

81.  The Husband submitted that the money from his mother is loan, not gift, and there is no guarantee that his mother will continue supporting him financially.  As there is no evidence that the Husband has to repay or has repaid his mother, the money he has obtained from his mother, if not viewed as gift, could at least be viewed as soft loan.

82.  For the purpose of this application, I do not have to make a final finding on whether the money from the Husband’s mother are gifts or loans or soft loans.  These matters would be determined by the trial judge in the ancillary relief trial when oral evidence is received and tested.  It is trite law that the ability to borrow on the part of the paying party can be regarded as a means of financial resources that the court could consider for maintenance pending suit application. 

83.  What is more alarming is the amount of money the Husband has received from his mother throughout the years, be it gift, or loan or soft loan.  Without having to go into detailed investigation, according to the Husband’s Form E filed on 8^th December 2016, he has obtained a total sum of HK$3,427,500 as loan from his mother. 

84.  When being asked about details of these loans from his mother, the Husband clarified, by way of a table for the answer for question 14, in his Answer to the Wife’s 1^st Questionnaire filed on 17^th May 2017, that for the period from July 2014 to September 2016, a total sum of HK$3,683,300 was obtained from his mother, in numerous sums from several thousand dollars to up to HK$700,000. 

85.  The reasonable inference is that the Husband has the means to pay.  By using a broad brush approach, and in such a situation, the court should err in favour of the payee.  I therefore rule that the Husband has the means to pay maintenance pending suit in the amounts I have ruled.

86.  As a result of the analysis above, the application to vary the interim interim maintenance by way of the Husband’s Summons must fail.

In the event that MPS is ordered, what date should that part of the order take effect from? (Issue 3)

87.  The Wife asks for the amount of maintenance pending suit awarded be backdated to October 2016 when the Wife filed the divorce petition.

88.  Having ruled on the reasonable sum to be awarded as maintenance pending suit and the Husband’s ability to pay, I notice this is not the type of cases that the Husband has the amount available to be withdrawn or realised from his own bank or securities accounts.  I have ruled that the Husband has the ability to pay having considered his resources, mainly on the amount of money he has obtained and can reasonably be expected to obtain from his mother, and the robust assumption that he has the ability to pay .

89.  In view of the numerous factual issues in dispute, which should best be dealt with at trial, and in view of the open offer by the Wife, I am of the view that it is fair not to order backdating the amounts to be paid.

90.  I have to emphasise that the maintenance pending suit ordered is only an interim measure pending the substantive hearing, and that the amounts awarded could be reviewed retrospectively, so that any over or under-provision as a result of the maintenance pending suit order could always be rectified at the substantive ancillary relief hearing.

Conclusion

91.  I make the following orders :-

(a) The Husband do pay the Wife maintenance pending suit in the sum of HK$50,000 per month, with the 1^st payment to be made on or before 1^st day of February 2018 and thereafter on the 1^st day of each and every month and until further of the court.

(b) The Husband do pay the Wife maintenance pending suit for the benefit of the 2 Children in the total sum of HK$100,000 per month, with the 1^st payment to be made on or before 1^st day of February 2018 and thereafter on the 1^st day of each and every month and until further of the court.

(c) The above payments are to be deposited into the Wife’s designated HSBC account.

(d) The Summons filed by the Husband dated 8^th August 2017 be dismissed.

92.  Although the Wife does not succeed in all her claims for maintenance pending suit, the undeniable fact is that she has to come to court before she could get the maintenance pending suit as now ordered.  In the circumstances, I am of the view that it is fair for the Wife to get the costs of her application for maintenance pending suit, including all costs reserved. 

93.  In relation to the Husband’s application, as I have dismissed his Summons, there is no reason that costs should not follow the event.  As that Summons was heard together on the 2^nd day of the hearing, with no further affirmations filed by the Wife, I anticipate not much costs should be incurred as a result.

94.  I order that the Husband do pay the Wife costs of the Wife’s application for maintenance pending suit and the costs of the Husband’s application to vary the interim interim maintenance, including all costs reserved, to be taxed if not agreed.  Counsel certificate is also granted.  The Petitioner’s own costs be taxed in accordance with Legal Aid Regulations.  This is a cost order nisi, which shall be made absolute after the expiry of 14 days from the handing down of this judgment.