LKK v. CSM

FCMC 6074 of 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 6074 OF 2007

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J U D G M E N T

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INTRODUCTION

1. There were originally two applications before me:

(i)	The Summons (“Injunction Summons”) issued by the Petitioner (H) on 5 December 2007 to, inter alia, restrain the Respondent (W) from disposing of, or otherwise dealing with the sale of the parties’ former matrimonial home in Shenzhen (“the Shenzhen Property”);
(ii)	The Summons issued by W on 7 December 2007 for maintenance pending suit for herself.

2. At the hearing, H’s Injunction Summons was adjourned to be  dealt with at the same time as the ancillary relief trial, and that left only W’s application for maintenance pending suit.

BACKGROUND

3.  The parties met in Guan Lan City, Shenzhen in about 1994.  H was then a Hong Kong citizen, but he was running a factory in Guan Lan City, and thus he was living there most of the time.  W claimed she was working as a clerk in a factory, and only working part time as a disc jockey at a karaoke club.  The parties later married on 10 September 1996 in San Shui City.

4.  After their marriage, the parties lived in Guan Lan City. There is one child of the family, namely a son who was born on 15 June 1998 (now 9) (”the Child”).

5.   In 1998, H bought the Shenzhen property as their family home but registered it in W’s sole name, and the family moved into their new home in about January 1999.

6.  In about August 2003, the Child came to live in Hong Kong and to start schooling here.  The Child resided in the H’s family home in Sai Kung (“Sai Kung Home”).  Later, in about April 2004, W also moved to Hong Kong and also resided in the Sai Kung Home.  At the time, H was still commuting between Guan Lan City and Hong Kong.  There were 3 bedrooms at the Sai Kung Home, H’s mother and one of his sisters occupied one bedroom, the Child and another of H’s sisters occupied another bedroom, and a third sister occupied the remaining bedroom.  The parties had to sleep on a mattress on the floor in the living room.

7.  In August 2004, as there was not enough space to accommodate all, H raised the matter with his family, and one of H’s sisters then bought a property in Shatin ( “Unit 05”) for the parties to reside in and for which H paid a nominal rent.

8.  W, however, claimed that she was in fact “evicted” by H’s family and had to move to Unit 05.  According to W, this flat was unfurnished, and she referred to it as a “ Bare House” in her affirmations.  H denied this, and said it was purchased with some furniture and items.  Further, W claimed that she moved there alone, but again H denied this.  He claimed that he was working in Mainland China during weekdays but would return to Unit 05 during weekends with the Child.  What is clear is that the Child has remained living at the Sai Kung Home under the care of H’s family, after W moved to Unit 05 and H has since about March 2007, also been living at the Sai Kung Home.

9.  According to H, his business failed in about April 2005, and his factory was closed due to financial loss, and subsequently, he found work in Hong Kong.

10.   The parties then decided to sell the Shenzhen Property, and the sale took place on 8 November 2005.  The net sale proceeds were about RMB 250,000.  According to H, the net sale proceeds were to be placed on fixed deposit for a period of at least 2 years, H saying that the parties were intending to purchase a home in Hong Kong eventually with the money as a down payment.

11.  Anyway, for reasons which I do not now need to go into, the net proceeds of RMB 250,000 were deposited into W ‘s sole account.  It is, however, clear that this sum was part of the parties’ family assets.

12.  Then there was an incident on 16 February 2007 (“the Incident”).  According to H, he and the Child witnessed W with another man “holding each other tight” that day at the main entrance of the Golden Lion Development.  The events which happened thereafter were somewhat confusing.  It was H’s case that notwithstanding the Incident, the parties continued to reside under the same roof in Unit 05 until about 28 March 2007.  W’s case was that she was “evicted” from Unit 05 after the Incident.

13.  On about 19 March 2007, H received a letter from W’s then solicitors Yip Tse and Tang (YTT) indicating that she would issue a divorce petition, and that according to YTT’s letter, since March 2006, the parties had been living separately, and that W had been living at the flat next to Unit 05, i.e. Unit 06 (“Unit 06”), which has always been the address of  Mr. Wong, who is now her cohabitant.

14.  At the hearing, W’s solicitor, Mr. Tse, explained that there was an error in YTT’s letter, and that W was “evicted” from Unit 05 after the Incident.  Thereafter, she claimed to have stayed in various villas and hostels for about a month, and only in March 2007, Mr. Wong invited her to move in with him.  H’s solicitor, Ms Cheung, produced a land search record of Unit 06 (P1) to show that on 10 March 2007, Mr. Wong transferred Unit 06 into the names of W and himself and to hold Unit 06 as joint tenants.

15.  W’s  case as to when she moved into Unit 06 to cohabit with Mr. Wong and also when their relationship started was rather confusing However, I do not need to deal with these issues now.

16.  It is quite clear that W had already formed a relationship with Mr. Wong by 10 March 2007.  It is further not disputed that Mr. Wong has been supporting W, although W produced some receipts to show she had contributed towards purchase of some household items for Unit 6 totalling about HK$5,840.

17.   On 22 May 2007, H issued a divorce petition based on W’s unreasonable behaviour.  W has since filed an Answer and a Cross Petition, and H a Reply.  Clearly, the marriage has broken down irretrievably.  The parties have now agreed to H issuing a fresh petition  after 28 March 2008, based on the parties separation since 28 March 2007.

18.  After the issue of the petition, it appears that H then found out that W had withdrawn the entire sum of RMB 250,000.  This resulted in H issuing the Injunction Summons.  Eventually, on 11 January 2008, W produced a schedule of her various withdrawals, purportedly to explain the whereabouts of the sum of RMB 250,000.  To put it simply, she claimed that the entire sum was spent.

19.   The matter of custody is at present also contested, and W’s application for interim custody and access has been fixed for a direction hearing in March.

LEGAL PRINCIPLES 

20.  It is not disputed that at this interim stage, I am to adopt a broad brush approach, and to consider W’s immediate reasonable needs, and H’s ability to pay, against the background of the various s. 7 factors as listed in the Matrimonial Proceedings and Property Ordinance.

W’s CASE 

21.   In her summons, W was initially seeking a sum of HK$3,000 per month for her maintenance pending suit.  Later, her solicitor Mr. Tse informed that court that she was willing to accept HK$1,500 per month.

22.  W’s case was that she was not able to work for long periods, mainly due to health problems, and was in need of maintenance from H.

H’s CASE

23.  H asks that W’s application be dismissed for the following reasons:

(i)	W has sufficient earning capacity to maintain herself;
(ii)	W has not been frank as to the whereabouts of RMB 250,000, and she still has a large part of such sum, if not all, with her;
(iii)	W has overstated her expenses;
(iv)	H is unable to pay.

24.  I will deal with (iv) above first. After W’s concession, H clearly has the ability to pay her HK$1,500 per month, since in his Form E, his expenses were stated to be about HK $9,151 per month, and his income was HK$10,833 per month.  Although his solicitor, Ms. Cheung, submitted that there could be other urgent expenses for H and/or the Child, there was no such evidence before me.

25.  The real issues are W’s earning capacity, her reasonable needs, and whether she still has any part of the sum of RMB 250,000.

W’s EARNING CAPACITY 

26.  W ‘s case as to her work history was not consistent.  In her 2^nd Form E filed on 11 January 2008, she claimed she had been unemployed since 10 May 2007, and that from July 2006 until May 2007, she was working at the Polytechnic Staff Canteen, earning about HK$1,500 per month.  Between July 2006 and May 2007, the entries marked “salary” in her HSBC account averaged about HK$1,178 per month but during this period, there were also credits in her BOC account by cheques or transfers, averaging about another HK$1,327 per month.  It further appears that since about December 2006, W had been buying and selling securities. There was a balance in her BOC savings account of HK$12,488 on 14 November 2007.  It appears that this account was used mainly for her salaries and securities transactions.

27.  Notwithstanding that W said on 11 January 2008 she was unemployed since 10 May 2007, less than a month later, and about a week before the hearing, on 5 February 2008, she admitted in her 3^rd affirmation that she had worked as a waitress in different restaurants.  She further admitted in this 3^rd affirmation she was  working on a “long term casual basis”.

28.  At the hearing, W’s solicitor, Mr. Tse, accepted W’s work history as listed by H in his 2^nd affirmation and only disputed the periods. Basically, W had at least 8 different jobs from about May 2004 until the present.  Although it appears that each of these 8 jobs might not have lasted for too long a period, it is clear that she was able to find work and earn about HK$5,600 per month not long after she arrived in Hong Kong in 2004.  

29.  W was born on 26 Feburary 1975, and is now 33.  She claimed that she suffered from pelvis problems, and was not able to stand for long time.  There was no medical evidence relating to her pelvis problems, or that such affected her ability to work.  She had produced medical bills, but mostly were for blood tests or other tests, and were all incurred after April 2007.  As pointed out by H’s solicitor, Ms Cheung, such bills added to a total of only about HK$1,760. 

30.   W had no difficulty in finding jobs in June 2004 notwithstanding being a new immigrant, although it appears that she was not able to hold a job for long, for whatever reasons I know not at this stage.  H’s solicitor, Ms Cheung, submitted that it was when she started share trading that she stopped working.  Whatever the reason, there was certainly no evidence at this stage that her not being to hold a job for long was due to any medical problems as alleged by her.

W’s EXPENSES

31.  According to her 2^nd Form E, W said her then expenses were HK$10,332 per month, and yet she was then claiming HK$3,000 per month.  When asked how she was meeting the deficit, there was no satisfactory explanation.

32.  W claimed that the transfer of Unit 06 into her name jointly with Mr. Wong was only to enable her to claim custody, I find this difficult to understand. She claimed that she in fact held no interest in Unit 06. It appears that she is trying to say that she holds the property Unit 06 in trust for Mr. Wong, but if this is the case, I really cannot understand why Mr. Wong would incur all the expenses involved to transfer the interest to her, not merely as tenants-in-common, but as joint tenants.  W and presumably Mr. Wong were legally represented at the time of the transfer, and yet there was no trust deed.  Whatever the reason for the transfer, it is not disputed that she does not need to pay any rent for her accommodation.

33.  W’s  “personal expenses”, as stated in her 1^st Form E, was only HK$6,000 per month.  In her 2^nd Form E, this has escalated to about HK$10,000 per month, being about HK$4,500 per month for her “general expenses” and HK$1,780 for the Child’s expenses, whereas her “personal expenses” have gone down to about HK$4,000 per month.  W’s 1^st Form E was filed by her acting in person, but still she can read Chinese, and there was no reason why her expenses should vary to such an extent within 7 months.

34.  Anyway, there was no sufficient documentary evidence to support the expenses claimed by W.  From her bank accounts, it would seem that her monthly cash withdrawals were at most about HK$5,000 to HK$6,000 per month, and often less.  In addition to W not having to pay for her accommodation, she admits that she receives financial support from Mr. Wong.

35.  H’s solicitor, Ms Cheung, submitted that W’s reasonable expenses were only about HK$3,000 per month for herself, and HK$500 per month for the Child, whom she saw only about 2 or 3 times a month, totalling HK$3,500 per month.

36.  On the evidence presently before me, I am of the view that W’s reasonable expenses should not be more than HK$5,000 per month.

WHEREABOUTS OF THE SUM OF RMB 250,000

37.   W has not provided any documentary evidence to support her claims regarding how she spent the entire sum of RMB 250,000.

38.  The main reason she listed was for maintaining her livelihood, her medical expenses, and only for the final sum withdrawn on 30 July 2007, she claimed part of it was for buying furniture and computers for Unit 06, allegedly for the Child, in case she obtains his custody.   The only furniture and computer bills produced by her added to a total of only about HK$5,840.

39.  It is not disputed that from marriage until at least April 2004, H was paying W RMB 3,000 per month.  In 2003, W was still living in Shenzhen.  There was no evidence that she was in any financial difficulties or that, as alleged by her, she had to borrow RMB 30,000 from a friend in October 2003.  From about June 2004 onwards until the end of that year, W was earning on average about HK$5,600 per month, and she did not need to pay any rent.   Again, there was no evidence that she was in any financial difficulties or that, as alleged by her, she had to borrow RMB 10,000 in November 2004.   In fact, by December 2004, in her BOC account, she seemed to have been able to save about HK$7,000 from her salaries.  W has filed two Form Es, one on 30 May 2007, and one in January 2008.  In her 1^st Form E, W claimed that she still had about RMB 100,000, and then shortly thereafter, within two months, she withdrew two sums of RMB 50,000 respectively on 2 June 2007 and 30 July 2007. During these months, she was in fact trading in securities.  There was no evidence as to when these last two withdrawals of RMB 100,000 was used up.  Taking into account the bills produced by her, and at, say HK$5,000 per month, W should still be able to maintain herself from the sums of RMB 100,000 for at least 18 months.

40.  In short, apart from some relatively small amounts from the bills she produced, there was simply no other evidence to support W’s claims of her various borrowings, and why she needed to spend the entire sum of RMB 250,000 for her “livelihood/medical expenses”.  This is, however, not a matter, I need to go into details or make any findings now as I have not yet heard W’s oral evidence, but I would say at this stage it appears that H is not unjustified in suspecting that W still has part, if not all, of the sum.

CONCLUSION

41.  Having regard to all the circumstances, I am of the view that W is well capable of maintaining herself from her own earnings or other financial resources.  She is therefore not in need of any maintenance pending suit from H at this interim stage.

ORDER

42.  My order is thus:

Paragraph 3 of the Respondent’s summons of 7 December 2007 for maintenance pending suit be dismissed.

COSTS

43. I will reserve the question of costs.  As both parties are under legal aid, I will order that their own costs be taxed under Legal Aid Regulations.