CONNIE WAI HAN TANG YUNG v. STEPHEN WILLIAM KWING PUI YUNG

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JUDGMENT

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Sir Alan Huggins, V. -P.:

1. This is an appeal in matrimonial proceedings. The District Judge had before him an application for leave to file an answer out of time, an application by the Petitioner to adduce evidence on affidavit at the hearing and an application for maintenance pending suit. We are now concerned only with the final part of that matter: the maintenance pending suit. It is agreed that leave should be given to file an answer out of time - so I take it that the appeal is withdrawn in respect of that - and it is agreed that leave having been given to file an answer out of time the evidence at the trial ought to be given orally.

2. The learned judge was put in a very difficult position. The Applicant is now living in America and all the evidence, or nearly all the evidence, which was led in support of her application related to the cost of living in America. In my judgment that evidence is totally irrelevant. The result was that the District Judge was left with practically no evidence upon which to base a proper appreciation of the needs of the Petitioner. He did the best he could. He was told that the house - the matrimonial home where the Husband was now living in Hong Kong - was worth $750,000. He was told that the living expenses of the Husband and the Wife whet they were living together was in the region of $2,400 a month and that the Wife had been receiving $5,000 a month as pocket money. He summed up his conclusion like this:

"In this particular case I think it is relevant to take into account that this marriage is over 11 years old. I do not consider it appropriate to consider the question of conduct. Considering the wife's needs, in practical terms, there is merit in Miss Eu's submission that her reeds equate to what she requires to live to the same standard as she did before the separation. She needs to house herself. It would seem that the flat they used to live in is not at the top of the luxury market, but given the husband's own valuation is HK$750,000, it is clearly a flat of a very good standard. I am also satisfied that the parties lived to a higher standard than the husband seeks to persuade the Court. There is, for example, some evidence of the purchase of chincilla and other fur coats and jewellery etc. It is clear the parties also travelled extensively. There is no evidence of the wife's earning capacity but equally there is no suggestion from the husband that she should work. There was also no evidence as to the rental worth of the matrimonial home so it is extremely difficult to estimate what rental the wife would have to pay for similar accommodation. Tanking into account his substantial income and the other factors mentioned above, I consider a reasonable sum for maintenance pending suit is $35,000.00 per month and this I award."

The income of the Husband had been assessed in the region of $1,300,000 a year. That figure has not been in dispute in this court. What has been suggested is that the learned judge has taken a figure for maintenance which is entirely too high and cannot possibly be justified. It is suggested that the only way in which the judge could have come to that conclusion was by looking at the available income and dividing it between the parties rather than, as is submitted, properly looking at the needs of the Wife in conjunction with the available money. In my view it is the needs of the Wife to maintain a proper standard of living commensurate with the standard which she had been enjoying up to that stage which the judge should have been looking for, and unhappily I think he was put in the position that really he found it impossible to come to a conclusion without just taking a figure out of the hat. He has given no breakdown at all of the figure which he has awarded. I accept that under s.3 of the Matrimonial Proceedings and Property Ordinance it is not appropriate to make a very detailed and full investigation into all the matters which are relevant to a final award under s.7 of the same Ordinance. Nevertheless I do think it is incumbent on a judge who is considering a s.3 case to consider those factors and it is not possible to come to any satisfactory conclusion without making some attempt at dividing up the needs in terms of dollars for each of the factors involved.

3. I have come to the conclusion that on such evidence as there was before the judge the highest figure that could properly have been awarded would have been made up as follows. On a valuation of $750,000 it is difficult to see that a figure for rent in excess of $7,500 a month could be justified. The wife had been receiving pocket money of $5,000 a month and that I would allow. The judge thought that the assessment for food and similar expenses (utilities and so forth) was totally unrealistic. Discussion at the Bar has been on the basis of something like two to three times that amount and I think it is justified to take a figure of $7,000 a month for those expenses. In addition there are the matters which the judge mentioned in the passage that I have cited relating to presents and, more especially, to travelling expenses, and I think it would be justifiable to take a figure of $2,500 per month for that. Therefore, in total, the highest figure that I can come to on such evidence as there was is a figure of $22,000 a month.

4. I accept entirely what was said by Ormrod, L.J. in Preston v Preston 1982 F. 17, 29 where he quoted from Asquith, L. J.' s judgment in Bellenden v Satterthwaite 1948 1 A11 E. R. 343. It is not for us to substitute our discretion for that of the judge: we may interfere only where we are satisfied that the judge has come to a conclusion which on the evidence no judge ought to have come to. Here - and I do not criticise the judge: as I say, he was in a position of considerable difficulty - I think that the figure which he has fixed is outside the bracket which could justifiably be awarded in a case of this kind.

5. I would therefore allow this appeal and substitute a figure of $22,000 a month for the figure which was assessed by the judge.

Kempster, J. A.:

6. I agree with the figure which my lord the Vice President has reached and with the breakdown of that figure. The parameters within which the judge could operate in this instance were wide. Unhappily his figure seems to me to be outside those parameters.

7. I would only add, in another context, that as there is an order refusing the application to file an answer out of time, it may be that we should in fact allow the appeal in order to enable the answer to be filed.

Nazareth, J.:

8. I would agree with what my Lord the Vice-President had said and also with what my lord Kempster, J. A. had said and I have nothing to add.

Sir Alan Huggins, V. -P.:

9. After hearing further argument I now agree with my brother Kempster that we ought also to allow this appeal in respect of the first two matters to which I alluded, and we can do that on the basis of new evidence which has been put before us. I do not need to go into it in detail.

18th March 1986