CWK v. YCHS AND ANOTHER

FCMC 6082 /2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 6082 OF 2014

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D E C I S I O N
(Maintenance Pending Suit)

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Introduction

1. This is an application by the Petitioner (“Wife”) by way of her summons dated 28 April 2015 seeking maintenance pending suit against the 1^st Respondent (“Husband”) backdated to 1^st June 2014.  The amount sought is HK$70,000 a month.  In addition, the Wife also seeks reinstatement of her American Express Centurion Supplementary card (“AE Card”) which was cancelled by the 1^st Respondent without her knowledge.

2. There is no application for litigation funding by the Wife.

3. The Wife was represented by Miss Anita Yip, S.C., leading Miss Christina Tseng.  The 1^st Respondent was represented by Mr. Robert Pang, S.C., leading Mr Eugene Yim for this hearing. 

Background

4. One day before this hearing, this Court handed down its Decision on the Wife’s application for an extended period of discovery of financial documents against the Husband where I have set out the background of the parties.  Hence, I do not intend to repeat what had already been set out save and in so far as it is necessary for this Decision.

5. The parties were married in 1987 and, despite numerous artificial fertility treatments over the years, no child was born out of this 27-year marriage.  The Wife filed her Petition in May 2014 relying on the fact of ‘Unreasonable Behaviour’ of the Husband.  Decree Nisi was granted in August 2014.

6. Suffice to say that when the parties married in 1987, the Husband was a site foreman and the Wife was a bank teller.  Shortly after the marriage, the Wife used her savings and purchased a property at Riviera Gardens under her sole name at a consideration of HK$374,000 (“1^st Riviera property”).  On 2 November 1988, the Wife added the Husband’s name to the title of the 1^st Riviera property as joint tenants.  The gross area of this property is about 529 sq. ft. Then, the parties moved out from the Husband’s mother’s place where they had resided after married to this 1^st Riviera property as their first matrimonial home.

7. Around 1991, the Husband set up a sole proprietorship business under the name HF Engineering Company (“HF”) and started his own business taking up construction projects.  Since the Husband was only educated up to Form 3 level, the Wife handled all the administrative work after her working hours.  The Husband’s business was mainly contractor doing maintenance, repair and renovation work for various government infrastructures. 

8. In 1993, the Husband incorporated his company as a limited company, namely, HF Construction Engineering Co. Ltd., with himself holding 60% shareholding and the Wife holding the remaining 40%.  The Wife’s role of handling administrative work for the Husband continued and remained unchanged.  The Husband’s business became profitable and his career started to take off.

9. Around 1995, the parties bought another property also at Riviera Gardens which was about 829 sq. ft (“2^nd Riviera property”) where they moved in.  The earlier and smaller 1^st Riviera property was then leased to the Wife’s elder sister. 

10. In August 1996, upon discussion with the Husband, the Wife resigned from her full time employment when she was at that time already an assistant branch bank manager. Since then she became a full time housewife.  The Wife assisted the Husband in his business development and tried to get pregnant which sadly to no avail.

11. In 1998, the Husband’s business became lucrative. The parties bought a property at Symphony Bay, Sai Kung, New Territories, at the price of HK$6,504,100 together with a car parking space at the price of HK$500,000.  This property had 4 bedrooms and the gross area was about 1,180 square feet including one storage room.  In June 1999, the parties sold the 2^nd Riviera property for HK$2,775,000.

12. In 2001, the Husband made a confession to the Wife that he had had an extra marital affair with the 2^nd Respondent who was already pregnant with his child. The Wife was assured by the Husband that he did not want a divorce and was only meant to have a child.

13. The Husband’s relationship with the 2^nd Respondent, however, went on and on until now.  Over the years, the 2^nd Respondent gave birth to 4 children with the Husband who are now respectively of the age of 13, 10, 8 and 4.  It is common ground that such relationship ‘running in parallel’ to the marital relationship with the Wife.

14. At the same time, the Husband’s business continued to grow.  In July 2001, he formed a new construction company PB Engineering Limited (“PB”) with a partner Mr. Yeung, each holding equal shares in the company.  It is around this time that the Husband started not to let the Wife involved in his businesses dealings and transactions.  The Wife was then kept in the dark as to the Husband’s financial position and his income generated from the businesses.

15. In November 2005, the HF Construction Co. Ltd was deregistered as a defunct private company.

16. In October 2007, the Husband and his partner Mr. Yeung formed another company UB Engineering Limited (“UB”) in equal shares to replace the PB Company. 

17. In April 2008, the Husband and his partner Mr. Yeung formed another company SW Engineering Limited (“SW”) also in equal shares to run the business along with UB.  Around this time the parties bought the property at Manhattan Hill where they resided as their matrimonial home prior to the Husband’s sudden departure in May 2014.

18. On 2 May 2014, the Husband abruptly packed his personal belongings and left the matrimonial home at Manhattan Hill whilst the Wife was at work.  The Husband went to live with the 2^nd Respondent in Shatin. The Husband left behind 2 letters of the same date in the letter box to the Wife which was written in Chinese by him.  The Wife was shocked, devastated and shattered by the Husband’s all of a sudden departure. 

The applicable principles

19. Section 3 of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”) provides the Court the discretionary power to make interim orders requiring one party to the marriage to make to the other periodical payments for his or her maintenance as the court thinks reasonable having considered all the circumstances of the case (see HJFG v. KCY [1012] 1 HKLRD 95).  The overriding principle is one of ‘reasonableness’.

20. It is useful to recite those paragraphs of Hartmann JA (as he then was) in the HJFG case :-

“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 re-balancing.  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 marital 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 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 now confirmed 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.

21. There is not much dispute by both Senior Counsels as to the law on maintenance pending suit application which is well settled. 

22. In addition to those commonly cited Hong Kong cases for maintenance pending suit applications, Miss Yip, S.C., referred to 2 cases in the Probate Division in England and Wales, namely, Sansom v. Sansom [1966] and Acworth v. Acworth [1942]; and also the case of Griffith v. Griffith [1957] 1 All ER 494.  Mr Pang, S.C., referred to the English case of Moore v. Moore [2010] 1 FLR 1413.

The undisputed facts

23. The following are undisputed facts :

(a)   The parties maintained a joint name Premier account with the HSBC (“HSBC account”) where the Husband would deposit the entire monthly salary he received from his companies, namely, UB and SW;

(b)   The Husband’s monthly salary was HK$65,000 and since May 2012, it was increased to HK$70,000;

(c)   The sum of HK$70,000 was made up of 2 sums of HK$15,000 and HK$55,000;

(d)   Out of the monthly deposits made, a sum of HK$10,000 would be withdrawn for the Husband’s monthly spending from the HSBC account;

(e)   Whenever there were yearly bonuses payable to the Husband out of his companies, he would give to the Wife substantial sums of approximately HK$770,000 to HK$790,000 which would also be paid into the HSBC account;

(f)   Throughout the years the Wife was in charge of arranging payment of all the monthly family and household expenses;

(g)   The source of moneys for settling the monthly family and household expenses came from those moneys in the HSBC account although not directly debiting from the HSBC account;

(h)   Throughout the years of marriage, the Wife has been a thrifty housekeeper;

(i)   The Wife was given an American Express Centurion Supplementary Card (“AE Card”) which was terminated by the Husband in June 2014;

(j)   The 2^nd Respondent was also given an American Express Centurion Supplementary Card by the Husband.

The Wife’s case

24. She maintained a personal bank account with the Standard Chartered Bank (“SC Bank”) through which she has been using it for throughout the years to settle all the family and household expenses.  Throughout the marriage, it has been her habit of accumulating and saving the moneys given to her by the Husband up to certain amount and then transferred a significant sum from the HSBC account to the SC Bank account.  The Husband has all along been aware of such arrangement and throughout the years had never asked her to account for the moneys that he gave to her.

25. She has all along been thrifty on her personal expenses and also on the up keeping of the family.  She did not spend much on the AE Card.  Most of her AE Card spending was for modest sums such as purchase of movie tickets.  In May 2014, following the Husband’s sudden departure from her when she was devastated, she made a one-off splurging in the sum of HK$227,357 on the AE Card.  The Husband became furious and sent her threatening text message.  She immediately and without second thought settled the spending on her own in one payment by writing out a cheque to the Husband.  Nevertheless, the Husband then terminated the AE Card. 

26. She is now working as a supporting staff at a bank earning a modest salary of HK$9,880 a month and has had to rely on her savings to defray her monthly expenses, not to say the substantial legal costs that had incurred and would have to be incurred for these proceedings.  Her updated expenses set out in her 4^th Affirmation are as follows :

General
Item	Amount (HKD)
Mortgage instalments (to be deducted from the MOA deposit)	$0
Utilities (electricity, gas, rates, telephone & water)	$5,000.00
Management fees	$3,000.00
Food	$8,000.00
Household expenses	$3,000.00
Insurance premia (I used to be responsible for payment of the 1st Respondent’s Insurance premia until the same ceased from effect)	$3,100.00
Domestic helper	$4,010.00
Total monthly household expenses	$26,110.00

Personal
Item	Amount (HKD)
Meals out of home	$5,000.00
Transport	$2,000.00
Clothing/shoes	$5,000.00
Personal grooming (including haircut and cosmetics)	$3,000.00
Entertainment/presents	$10,000.00
Holidays	$10,000.00
Medical/dental	$5,500.00
Tax	$2,000.00
Insurance premia	$4,000.00
Dependent family members	$2,000.00
Total monthly personal expenses	$48,500.00

27. Thus, the Wife’s maintenance pending suit (“MPS”) budget is in the region of HK$74,610 (HK$26,110 + HK$48,500) a month.

The Husband’s case

28. The Husband challenge rests upon the Wife’s financial resources readily in hand and her actual financial needs.  Apart from the salary of HK$9,880 a month, the Wife’s other sources of income include :-

(a)   Rental income from the parties’ joint name property at the 1^st Riviera which is HK$10,000 a month;

(b)   Rental income from the car parking space at the Manhattan property which is HK$4,000 a month;

(c)   Dividends from her investment funds which she had set aside from the liquid cash capital and which averaged around HK$7,300 a month; and

(d)   Other interests and dividends from various fixed deposits and yields from stock investments.

29. Thus, the Wife’s income from various other sources together with her monthly salary added up to no less than HK$31,180 a month (HK$9,880 + HK$10,000 + HK$4,000+ HK$7,300 = HK$31,180).  In the Wife’s Form E, she disclosed having a total capital sum of about HK$14 million as of June 2014 which, according to the Husband, are moneys transferred out unilaterally by the Wife from the HSBC account over the years.

30. There is no depletion of finances on the Wife.  Although her disclosed cash and stocks updated a year later in June 2015 came down to about HK$10.9 million, this is for the fact that she withdrew HK$3 million from her SC Bank account to purchase a new life insurance policy thus ended in the reduction of her liquid case asset value from HK$14 million odd to HK$10.9 million odd dollars.

31. As to the Wife’s MPS budget, the Husband considered the items have been exaggerated and that most, if not all, of the expenses are not substantiated by receipts or any relevant documents.  Mr. Pang S.C., in his written Skeleton Submissions analysed the Wife’s items of expenses listed under, namely, (a) General Expenses; and (b) Personal Expenses, and then set out what would be the Wife’s reasonable expenses.  According to the Husband, the Wife’s reasonable expenses are estimated at the region around HK$28,246 a month as follows :

Items	HK$
General expenses
Mortgage instalments for W’s residence	Paid by H
Utilities	2,500
Management fee	3,000
Food (including meals out of home and expenses on dependent family members)	4,000
Household expenses	1,500
Insurance premia	2,896
Domestic helper	2,600
Sub-Total	16,496

 

Personal expenses
Meals out out home	---
Transport	1,000
Clothing/ shoes , entertainment/ presents and personal grooming	5,000
Holidays	1,250
Medical/ dental	500
Tax	---
Insurance premia	4,000
Dependent family members	---
Sub-Total	11,750
Grand-Total	28,246

32. Such estimated amount of monthly expenses in fact tally with the figure of HK$28,300 which can be deduced from going through those transactions appeared in the Wife’s bank statements and credit card statements.  Thus, the Wife is capable to accumulate almost all the sums deposited by the Husband into the HSBC account over the years.   

33. As to the Husband’s finances, he only has about HK$3.5 million of liquid cash in his bank accounts, which is about ¼ of the liquid assets of the Wife.  His salary income from his companies is HK$70,000.  On top of the salary income, he had received year-end bonuses from his 2 companies.  For the year ended March 2014, he received HK$2,095,000 from the company UB and HK$1,065,000 from the company SW.  However, he anticipated lower business profit for at least the year ahead since the main contractor of UB and SW had lost a maintenance contract work for the Vocational Training Council.  Although there was another contract for the Hospital Authority as replacement, he estimated the profit margin would be much lower due to the need to increase costs of manpower and office space for such newly obtained contract.

34. As to the Husband’s liabilities, in his Answers dated 29 May 2015 to the Wife’s Questionnaire, the monthly expenses came about to the region of around HK$ 224,826 as follows :-

General Expenses (for the family with Madam CKY and the 4 children)
Item	Amount (HK$)
Mortgage instalments	31,318
Utilities (electricity, gas, internet & water)	4,000
Management fees	3,646
Government rent and rates	2,306
Food and household expenses	10,000
Car expenses (car parking fees $4200, licence fees $483, insurance premia $440, maintenance fees $500, fuel and parking fees outside home $2400)	8,023
Insurance premia for domestic helpers and household	300
Domestic helpers ($4110 x 2) and transportation fees	8,620
Others (mobile fees x 4) Expenses on 2 dogs	600 500
Total monthly household expenses	HK$69,313

 

Personal Expenses
Item	Amount (HK$)
Meals out of home (for the family with Madam CKY and 4 children)	9,000
Meals out of home (for 1st Respondent and with friends)	12,000
Transport	1,000
Clothing / shoes	1,500
Personal grooming (including haircut)	400
Entertainment (massage, purchase of red wine, mahjong)	7,000
holiday (family trip)	10,000
Medical / Dental (including consulting specialist)	4,000
Tax	47,201
Insurance premia	3,419
Total monthly personal expense	HK$95,520

 

Children Expenses (4 children)
Item	Amount (HK$)
School fees	21,320
Extra tuition fees and Extra-Curricular Activities (*)	13,823
School books and stationery	1,000
Transport to school (including school bus totaling $2,750 and other transportation means to school $1,000)	3,750
Medical / Dental	1,400
Entertainment / presents for friends’ birthday parties	3,000
Holidays (not with the 1st Respondent)	5,000
Clothing / Shoes	4,000
Insurance premia	2,900
Lunches and pocket money	2,000
Other Transport ($200 x 4 children)	800
Uniform	1,000
Total monthly expenses for children (*) Monkey Tree English Learning Centre - HK$1500 (1 child) Civic education, Chinese, English and Maths - HK$3900 (2 children) A+ Maths - HK$1500 (2 children) Tutorials at home - HK$2400 (2 children) Piano - HK$1143 (1 child) Swimming class (海天) - HK$1,380 (3 children) Swimming class (體藝會) - HK$1,000 (2 children) French Class - HK$1,000 (2 children)	HK$59,993

35. There is also the added financial constraint as to his personal medical expenses caused by the Wife’s cancellation of his medical insurance policy in April 2015.  This medical policy was taken up since 1992.  Given the fact that the Husband previously suffered from kidney tumour and had angioplasty twice, he is now unable to take out any new medical insurance coverage.  He would have to pay those medical expenses from his own pocket.

36. Mr. Pang, S.C., for the Husband in his able submissions referred to the judgment of Hon Hartmann JA (as he then was) in the HJFG case (supra) where His Lordship said the courts had no jurisdiction to make orders which for all practical purposes result in pre-trial capital rebalancing.  This would have happened in this case since the Wife’s assets is quadruple to that of the Husband but nevertheless seeks maintenance pending suit for a sum which is significantly in excess of her actual reasonable needs.

37. Mr. Pang, S.C., at paragraph 74 of his written Skeleton Submissions made out a meticulous calculation based upon the Wife’s disclosed liquid assets on hand of HK$10.9 million for paying off an estimated needs of HK$28,300 a month, it ends up with a period of 385 months (that is, 32 years).  Had the sum of HK$70,000 been used as the Wife’s needs per month, it still came up with a period of 155 months (that is, 13 years) to go along with the HK$10.9 million odd liquid cash assets.

Discussion and Analysis

38. As mentioned, this Court delivered its Decision the day before this hearing on the Wife’s extended discovery as to the Husband’s finances of which had yet to be seen. Leaving aside any further assets which might come to light, I am not convinced that on the value of assets presently available, this is one of those ‘big-money’ cases for ancillary reliefs.

39. However, on the available evidence and also a common ground of the parties, that there is no urgent and immediate need of cash for the Wife nor is there any shortage of cash for the Husband.  In such a situation, the focus would thus fall upon whether it is ‘reasonable’ for granting maintenance pending suit rather than the Wife’s “immediate needs” for it or the Husband’s “ability to pay” to pay for it.   

40. In the unreported case of C v. F (FCMC No.1701 of 2000), His Honour Judge Bruno Chan at paragraph 14 of the Judgment had said :

  “14.  Although the sole statutory guideline in considering maintenance pending suit is that the award shall be “reasonable”, the Court will nevertheless bear in mind all the factors drawn to its attention relating to the marriage and the parties to it (my emphasis), and perhaps the 2 most outstanding matters in every case, as in this one, are the standard of living of the parties, and the ability of the husband to pay.”

41. Pausing here, Miss Yip, S.C., for the Wife has throughout this case submitted to this Court that there is a peculiar feature of this case by using the terminology “tri-partes relationship” to reflect the relationship of the Husband and the 2^nd Respondent running in parallel with the marriage in question since 2001 for some 13 odd years and still continuing which had sadly ended up with the breakdown of the marriage. 

42. I agree with Miss Yip, S.C. that such “tri-partes relationship” is peculiar and indeed a factor, in the words of the learned Judge Bruno Chan, relating to the marriage which was drawn to this Court’s attention and would have to be borne in mind when considering maintenance pending suit application (see C v. F, supra).  Given such peculiar feature and the undisputed fact that the Husband has been maintaining ‘2 families’ at the same time for some 13 odd years, it is on all reasonableness that this Court when considering the standard of living of the parties, to also take note of the spending made for the 2^nd Respondent whom the Husband had also maintained throughout the years.  In this regard, I have reminded myself against making any moral judgment to the detriment of the Husband in respect of the “tri-partes relationship” and confined myself to only consider what is required under the law to determine the Wife’s MPS application.

43. Having said, I am entitled to consider Miss Yip S.C., submissions as to the spending and lifestyle of the Husband over the 2^nd Respondent and the 4 children born out of the relationship with the 2^nd Respondent, which was paid for by the Husband as per his American Express Centurion Card statements or receipts as follows :

Date	Item description	Amount (HKD)	Reference
2 April 2013	General Expenses	$100,000	P7/1907
2 April 2013	General Expenses	$100,000	P7/1907
29 August 2013	General Expenses	$100,000	P7/1908
5 September 2013	Education fees	$35,000	P7/1910
18 September 2013	General Expenses	$100,000	P7/1908
16 October 2013	General Expenses	$100,000	P7/1908
20 November 2013	General Expenses	$100,000	P7/1908
21 December 2013	General Expenses	$100,000	P7/1908
15 January 2014	General Expenses (CNY spending)	$200,000	P7/1908
16 January 2014	Kids’ language course	$28,000	P7/1910
20 January 2014	Household expenses paid to Madam Chu (especially for CNY)	$450,000	P7/1911
24 February 2014	Flight tickets to Singapore for 4 people	$20,840	P7/1911
25 February 2014	Paid to Madam Chu for kids’ 3 computers and study desk	$50,000	P7/1911
23 April 2014	Paid to Madam Chu for general expenses	$250,000	P7/1911
16 May 2014	Decoration fee for Palazzo	$100,000	P7/1911
17 May 2014	Decoration fee for Palazzo	$200,000	P7/1908
19 May 2014	Expenses for Madam Chu’s birthday dinner, Singapore trip and general expenses	$200,000	P7/1908
4 June 2014	Fees for kids’ courses	$10,760	P7/1912

44. In addition, as Miss Yip, S.C., with her junior has helpfully summated from the Husband’s answers and statements, that there are the following financial provisions made by the Husband to the 2^nd Respondent and/or the 4 children over the years as follows :

Date	Item Description	Amount (HKD)	Reference in the Trial Bundles
9 February 2014	Gigasports	$4,468.20	P2/357
10 February 2014	Capital Investment Part London	$172,780.30	P2/357
17 April 2014	MD Boutique	$1,820	P2/373
17 April 2014	Seed Heritage	$1,150	P2/373
19 April 2014	Ralph Lauren Children	$610	P2/373
19 April 2014	Bape Kids	$998	P2/373
21 April 2014	Dr Kong Footcare	$1,089	P2/373
20 September 2014	Nicolas and Bears	$2,133	P7/2075
21 September 2014	Lloyd	$882	P7/2075
26 September 2014	Burberry Asia Limited	$17,300	P7/2075
2 October 2014	Burberry Asia Limited	$5,000	P7/2069
18 January 2015	Adidas	$1,348	P8/2168
2 March 2015	Tony Burch	$2,380	P7/2046
22 March 2015	Gigasports	$3,308.80	P7/2047
15 May 2015	Cerruti 1881	$6,984	P8/2175
24 May 2015	Dr. Kong Footcare	$449	P8/2168

45. It is very important for this Court to also take note that the above summation contains financial provisions made before and after the Husband’s departure in May 2014.  Most of the provisions were made during the time when the Husband was giving to the Wife his entire monthly salary of HK$70,000 via deposits into the HSBC account. Such long established pattern of payment to the Wife, however, ceased in June 2014, which is coincidentally or otherwise the month following his abrupt departure from the Wife and the Wife’s commencement of these divorce proceedings in May 2014.   

46. As to the standard of living of the Husband, and again Miss Yip, S.C., with her junior also helpfully summated the Husband’s spending on his own by going through the Husband’s credit card statements and answers to the Wife’s questionnaires as follows :

Date	Item Description	Amount (HKD)	Reference in the Trial Bundles
12 September 2013	Mahjong debts	$17,400	P7/1910; P8/2247
17 December 2013	Mahjong debts	$12,700	P7/1910; P8/2250
5 May 2014	Mahjong debts	$20,000	P7/1911; P8/2263
17 June 2014	Mahjong debts	$11,000	P7/1912; P8/2271
24 June 2014	Mahjong debts	$11,000	P7/1912; P8/2272

 

Date	Item Description	Amount (HKD)	Reference in the Trial Bundles
11 March 2015	Massage and sauna	$2,340	P7/2046
24 March 2015	Massage and sauna	$2,168	P7/2177
4 April 2015	Massage and sauna	$1,600	P7/2177
9 April 2015	Massage and sauna	$2,100	P7/2177
14 April 2015	Massage and sauna	$1,300	P7/2177
21 April 2015	Massage and sauna	$1,500	P7/2178
28 April 2015	Massage and sauna	$1,400	P7/2178
4 May 2015	Massage and sauna	$1,600	P7/2178
7 May 2015	Massage and sauna	$1,600	P7/2176
15 May 2015	Massage and sauna	$1,500	P7/2176
20 May 2015	Massage and sauna	$1,700	P7/2176

47. Miss Yip, S.C., in her able submissions referred to the ludicrousness of the Husband to now make use of the Wife’s merit or credit of thriftiness over the years of marriage against her in his opposition to maintenance pending suit application, to put in the context expressed by Miss Yip, S.C., : “Is that the Wife should continue to be thrifty since she does not need that much money and not be entitled to the same pattern of payment that she had been receiving throughout the years prior to the breakdown of marriage ?”  I fully agree with Miss Yip, S.C.’s submission.

48. In my view, unless there is cogent evidence showing a material change of financial circumstances to the extent affecting the Husband’s ability to continue with what he had so far been paying to the Wife for years, there is no room for the Husband to cease an established pattern of payment simply because a divorce suit was filed against him.  Had this been allowed, it is tantamount to set up some form of financial threat or duress to deter a spouse from taking court proceedings. Put it the other way, it is akin to ‘penalise’ the Wife for filing the divorce.

49. I am not convinced by the Husband’s evidence that there was any material change in his financial circumstances in June 2014 which had affected his ability to continue to pay the HK$70,000, or more precisely HK$60,000 since out of which HK$10,000 was reserved for his own spending.  He was and is running the companies UB and SW and that both of them are still in business.  Any contingencies or uncertainties as to business turnover or profits, as Miss Yip S.C. rightly submitted, is something bound to occur in all commercial settings and one have to wait and see.  After all, any maintenance pending suit order is always subject to variation if there is any genuine and material change of circumstances after such order was granted.   

50. This led to another issue in this case, which is, whether the salaries given to the Wife was actually her ‘maintenance’? 

Was it intended for the Wife’s maintenance ?

51. Parties disputed heatedly as to the nature and purpose of the HK$70,000 given by the Husband to the Wife.  The Husband’s case is that all along his salary was aimed for investment and savings for their retirement purposes rather than maintenance for the Wife.  He expected the Wife to manage the moneys.  The Wife’s case is that she was entrusted by the Husband to use the moneys without restraint for her maintenance and also for defraying family expenses.

52. In the English case of Acworth v. Acworth in 1942 where Scott LJ said :

“The first question which arises is whether the fact that the wife was being maintained by friends in the United States of itself constitutes a reason why the husband should be freed, even temporarily, from his obligation to pay maintenance.  “Maintenance” is a very wide word, and, in my view, it should be read as covering everything which a wife may in reason want to do with the income which she enjoys.  It includes much more than food, lodging, clothes, travelling, and so on.  It includes, for instance, charity and making arrangements for the future, thus incurring various liabilities in her discretion, and it is wrong to limit it to any particular form of expenditure……”  

53. In the later case of Sansome v. Sansome in 1966, which is an appeal from the Registrar in increasing a permanent alimony of the wife, where Sir Jocelyn Simon P said :

“(5) The husband finally argues, on the case generally, irrespective of figures of income, that the wife has not only managed to live on the £1,150 a year which she has been enjoying by way of permanent alimony, but has actually been able to make savings from it reflected in the purchase of a car and some securities. This shows, it is argued, that she does not need an increase in permanent alimony. Why, then, should she be awarded it at the expense of the husband, who does need the money? Here again, both principle and authority are against the husband’s contention. First, it is no business of the court or the husband (now that cohabitation has been disrupted through his own misconduct) how the wife lays out her money, and in particular what proportion she devotes to current consumption and to provision for the future, respectively. Secondly, a wife’s extravagance in living beyond her allotment could hardly be a reason for increasing her alimony. Why, then, should her thrift in living within her allotment be a ground for limiting it? Thirdly, in any event, a similar argument was addressed to the Court of Appeal in Dean v. Dean and Pigott v. Pigott and there rejected.”

54. In the case of HJFG (supra) where Hartmann JA (as he then was) at paragraph 34 of the Judgment said :

“34…..”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…..”

55. Mr. Pang, S.C, submitted the above cases are not related to maintenance pending suit applications but rather for permanent financial orders.

56. In my view, to ascertain the common intention and conduct of the parties in the present case are more important that to apply the ordinary literal meaning of the word ‘maintenance’, though I am bound to take note of those cases and authorities where the term ‘maintenance’ had been defined. 

57. As earlier mentioned, there has been an established pattern of payment by the Husband of his entire salary to the Wife.  Given the fact that the Wife at all times since 1996 was a full time housewife financially dependent upon the Husband, I find it more probable than not that it would be in the Husband’s knowledge and contemplation that part of his salary would be used for defraying the monthly family expenses.  As Miss Yip S.C., rightly submitted, if those deposits were aimed for safe keeping and investments, then, how could the Wife who was unemployed to defray those day to day family expenses? 

58. As to the remaining part of his salary, there is no evidence from the Husband that he had ever requested for, or had the Wife ever informed him of, details of any surplus that remained in the HSBC account for a particular month or for any particular period after defrayment of family expenses.  There is also no evidence that over the years the Husband had ever checked the balance of the HSBC account for ascertaining how the ‘investments’ are up to.  This is antagonistic to any case of ‘saving up moneys for retirement purposes’ as the Husband had so alleged.   

59. Considering objectively all the circumstances, I am inclined to find in favour of the Wife that the moneys given to her by the Husband as per the establish pattern of payment was more likely than not for her personal use with no restrictions, including for her to defray all necessary day to day family expenses.  Whatever sums left over after defrayment of expenses would be for the purpose of her maintenance.

60. It is the established pattern of payment, with the Husband’s knowledge and concurrence of those recurring expenses for family living (although not knowing the exact amount) were to be defrayed out of it by the Wife, satisfies the notion of ‘meeting the recurring costs of living at whatever standard of living is appropriate’ propounded by His Lordship Hartmann JA in HJKG.

61. Before I leave this area of established pattern of payment, the learned Judge in C v. F (supra) at paragraph 58 of the Judgment had also said :

“58. The last issue that I need to deal with is that if part of the past maintenance for the Wife was indeed for her savings, as alleged by the Husband, is it reasonable to order him to continue to contribute towards her savings at this stage? It is not clear how much of such maintenance payments was used to be saved up by the Wife, but whatever the amount, if it were part of the parties’ lifestyle and practice in the past (my emphasis), I fail to see why it should be treated differently from, say, paying for her large credit card bills or providing 3 cars for her use ……..”

62. As can be seen from the above cases, it has been over half a century since Acworth in 1942 until HJKG in 2011 that the term “maintenance” was judicially considered as a wide word involving a broad concept.  Depending on the facts of each particular case, I believe “maintenance” under the context of maintenance pending suit applications covers different categories and also with varying spectrum of coverage.  The ultimate answer, in my view, is one of ‘reasonableness’ considered objectively by the Court having regard to all the circumstances of the case in question and then exercise its discretion on a ‘broad brush’ basis.

Any capital rebalancing?

63. With respect, I cannot agree with Mr. Pang, S.C., that there may be capital rebalancing if the Court is minded to order the Husband to pay maintenance pending suit to the Wife whilst there is significant disparity of liquid assets of the parties, the amount sought is over and in excess of the estimated reasonable needs and also there is no immediate financial needs of the Wife.

64. The fact that the Wife is in possession of assets in excess of the Husband does not necessarily prevent or debar her from seeking maintenance pending suit.  Each case must depend upon its own facts.  The recent case of YBK v. CLHD (FCMC 456/2015) date of judgment : 7 October 2015 was cited by Mr. Pang S.C. where the wife’s application for the daughter’s interim maintenance was dismissed.  The learned Judge in that case had found that there was no urgent need since the wife had been single-handedly maintained the daughter for the past 10 years and no serious action was taken by her against the husband for almost a decade.  Moreover, the husband who was suffering from bad health was only left with HK$440,000 cash in banks. 

65. Although the Wife in the present case also does not have urgent need for maintenance as in the YBK case, there is however the established pattern of payment for years which was, in the absence of any evidence as to any material change of financial circumstances, ceased completely by the Husband soon after and in the month following his sudden departure from the Wife.  This also coincides with the time that it happened soon after the Wife filed her divorce petition.  The established pattern of payment falls upon, quoting the words of the learned judge in C v. F (supra) “part of the parties’ lifestyle and practice in the past” of which there is no justifiable reasons for the Husband to bring it to a complete end.   

66. In any event the Husband, in his handwritten letter to the Wife dated 30 April 2014 which is 2 days before his sudden ‘disappearance’, had assured her with the same standard of living which she enjoyed over the years.  Miss Yip, S.C., took the liberty to read out the contents of the 2 letters in Court which I reproduced as follows :-

(Letter 1)

“xx:

坦白講：現在我都好幸苦，公司的工作同以前唔同，人工商判头價錢貴，的標以前中落根本搵唔到錢，以到臨界邊分分鐘要蝕錢，所以生活費我會比少比的妳，不過亦夠妳日常生活開支，希望妳明白，妳都知，我看錢唔係好重要，如果日後我找到錢，我一定唔會虧待妳，現在我身體的確有好多毛病，血糖高、前列線、心血管都有問題，我都要自己保重身體，妳亦要，以後有什麼須要我幫手或其他事都可以找我，打後待妳心情平伏後我會找妳，至於將來可否大家再一起生活睇願份，其實我的仔女比人傷害得好緊要，比人叫做二奶仔、野仔，唔見得光等，今次分開亦有為此原因，至於我的衣服，我执咗幾件衫及褲，錶我拿咗，留來紀念，至於護照希望妳叫工人拿比我，至於我只要回宏利保險單一份，到時我自己供保費，妳都知我身體實在有好多毛病，唔知往後是點，我都唔知，最後希望妳注意身體，多做運動、多做義工，開闊自己生活圈子，主動多些家庭敍會，多些旅行，想去什麼地方就去，工人照請免得自己幸苦，更希望妳明白我現在的處境，更希望妳忘記以前所有，屋企有什麼大、小事都可以找我或WhatsApp我，開開心心生活向前看，代妳心情平伏後，我會找妳食飯唔好當仇人一樣，希望有日可以再續前緣。

請多多保重身體

X上

4月30日”

(Letter 2)

xx：

當妳收到我封信後要冷靜，要堅強，唔好為我而傷心、落淚，這次決定我想咗好耐，我亦顧及妳要洗禮成為天主教徒，所以現在才給妳這封信，呢幾個月，我不停地想，令我這幾個月根本睡唔到，以及長時間的掙扎，才決定今次的抉擇，今次的決定，我知會傷害得妳好深，對唔住，其實呢幾年我地以經過着有名無實的婚姻生活，感情轉淡，應該妳感覺得到，就算今次唔分開，遲早都會分開，今次早的分開，對大家是好的，應該向前看，唔好向後看，今次老母的死對我打繫好大，我亦知道，大家條路唔易行，屋企轉變，兄弟不和妳應見到，我已經是自己一個人力撐，我要工作搵錢，亦要照顧肆個細路，亦要顧及的細路唔好比人睇小及睇唔起，唔好有什麼事情傷害到佢地，唔想佢地行咗歪路，所以要對佢地負責任，才決定今次分開生活，事實上，齊人之福唔易做，針無兩頭利，相信妳都會知道這件事遲早都會發生，請妳明白我的決定，其實我以心力胶捽，但無得我去選擇，多謝妳呢26年的婚姻生活，有開心及唔開心當中唔開心的事，得到妳多年的諒解及包函，內心非常蠶愧，請妳原諒。

多謝送啞媽最後一程萬分感謝。

我倆之間的事，唔關任何人事，是我倆人的事，至於我倆之物業，曼克頓山連車位，海濱花園等，及現有之現金全部歸妳所有，海濱花園我會找律師轉名比妳，我全部唔要，AE卡妳照用，到期我會換比妳，妳keep住用另外只要我工作如今天一樣不變，我會如以往一樣照顧妳，每月給妳生活費，直至我無工作或其他因素等為止，妳唔須要為我唔開心，我個人唔係一個直得妳為我傷心的人，我離開可能妳反而無咗壓力，可能妳重開心，其實呢拾幾年，妳以經好獨立咗好多。至於我地做唔成夫妻，可以做個好好的朋友，唔好當仇人，要講的以經講完，希望妳原諒我今次的決定，謝謝。

x

30/4/14”

67. It is also my decision that, on all fairness, which is the governing principle on maintenance pending suit applications, that the Wife should be entitled to the same ‘established pattern of payment’ for the during of these proceedings.  As Miss Yip S.C., also fairly submitted, that the Wife already did not seek any litigation funding or to also include those bonuses which she hitherto received in the present application.   

68. Further, this is not any kind of capital rebalancing since, as at the date of this hearing, discovery against the Husband had yet to be completed.  Given the peculiar feature of this “tri-partes relationship”, there may also have complicated issues involving finances (if any when considering the Wife’s ancillary reliefs) spent on the 2^nd Respondent which had yet to be explored.  It is, in my view, ‘premature’ to say that there was capital rebalancing merely by reference to the face value of liquid cash on hand of the parties. 

69. After all, the Court is only required to approach maintenance pending suit in a ‘broad brush’ manner.  Should there be any over-provision or under-provision, it can always be adjusted at the ancillary relief trial proper at a later stage.

How much MPS should the Husband pay to the Wife?

70. Now I turn to the amount to be awarded.  The undisputed evidence is that the Husband would be keeping HK$10,000 out of the sum of HK$70,000 deposited for his own spending.  This is also part and parcel of the established pattern of payment of which I have found for awarding maintenance pending suit to the Wife.

71. Accordingly, I decide the amount of maintenance pending suit should be HK$60,000 a month (that is, HK$70,000 minus HK$10,000).

Should there be back-dating?

72. The next question is whether it should be backdated to 1^st June 2014 as prayed for by the Wife.  Given the fact that there is no finding of ‘immediate needs’ of the Wife or reimbursement of expenses spent by her since the Husband’s cessation of the established pattern of payment, I do not intend to backdate the maintenance pending suit. 

73. In broad terms, I will order the maintenance pending suit of HK$60,000 per month to commence from the 15^th day of December 2015 and thereafter on the 15^th day of each succeeding month until further order.   

Other matters

74. It is the Husband’s case that over the years the Wife had withdrawn substantial sums away from the HSBC account without his knowledge and consent to her personal SC bank account.  In my view, these are ‘conduct’ issues which should be considered when it comes to the ancillary relief trial proper and not at this interim stage of maintenance pending suit.  Over and again, any withdrawal in excess of her entitlement adjudged at the end of the day would have to be accounted for or ‘added back’ in the computation process.

75. Accordingly, I will not make any findings on such contention of withdrawals.

Reinstatement of AE Card

76. I agree with Mr. Pang S.C., that there is no jurisdiction to order reinstatement of the AE Card under the maintenance pending suit provisions.  Thus, this item of claim fails.

77. In any event, the Wife’s spending on the AE Card had all along been on modest sums which should, as Mr. Pang S.C., so submitted and I agreed, would have been reflected in the expenses items under the Wife’s MPS budget.

Costs

78. As to the question of costs, I find there is no reason for departure from the normal rule of costs to follow the event.  I will so order.

79. I will also grant Certificate for Senior Counsel.

80. This is a costs order nisi which will be made absolute if no application to vary it is made within 14 days.

Orders

81. For all the above reasons, I now grant the following Orders :-

(a)  The 1^st Respondent (Husband) shall pay to the Petitioner (Wife) maintenance pending suit at the rate of HK$60,000 a month commencing 15^th December 2015 and thereafter on or before the 15^th day of each and every succeeding month until further order;

(b)  The 1^st Respondent (Husband) shall pay all costs of the Petitioner’s (Wife’s) Summons dated 28 April 2015 including costs reserved; to be taxed if not agreed;

(c)  There be Certificate for Senior Counsel.

82. Last but not least, I wish to thank both Senior Counsels for their valuable assistance to this Court.