SKH v. LCS

FCMC 14536/ 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 14536 OF 2012

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JUDGMENT
Maintenance Pending Suit

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The Application

1.  The respondent wife applies for maintenance pending suit at a monthly sum of $26,500.  She asks that this sum be payable as from December, 2012.

2.  In this judgment, I will refer the petitioner husband as “S” and the respondent wife as “L”.

3.  By an order dated 4 February, 2013, I have already given an interim interim maintenance in the sum of $15,000 per month commencing on 8 February, 2013.  Prior to this, S had been paying L a weekly sum of $1,500, roughly $6,750 per month.

Background

4.  The parties were married in 2002.  They have one daughter, now 10 years old.

5.  S is 39 years old.  At all times, he has been working as a police officer.  He has recently got a promotion and is earning a salary of $87,280 odd. 

6.  L is one year younger, aged 38.  She ceased working as a sales representative in September, 2007, because of depression and physical illness.  She has since then a full-time homemaker.

7.  The parties were then living in their self-owned matrimonial home in Ma Wan, the New Territories.  It is a 3-bedroom flat with about 993 sq. ft. 

8.  In July, 2012, S moved out of the matrimonial home with the daughter to live with his mother in Quarry Bay, in a flat owned by the mother and his elder brother.  As a result, L has since been living alone at the matrimonial home.  

9.  On 9 September, 2012, S petitioned for divorce on the ground of 2 years separation.  He is also seeking the custody of the daughter.  

10.  L opposed the alleged fact of 2 years separation and cross-petitioned for divorce on the ground of S’s unreasonable behaviour.  She is also seeking the custody of the daughter. 

11.  By an order dated 4 February, 2013, I granted L interim access to the daughter.

The Legal Principles

12.  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. 

13.  The Court of Appeal has recently in HJFG v. KCY [2012] 1 HKLRD 95 summarised the established principles,

“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.  ‘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’, whichis 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 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.”

14.  I am guided by the above principles. Accordingly, I have to look at the “immediate and reasonable needs’ of L in order to set an amount which is fair having regard to the circumstances of the case and in doing so I have to consider the marital standard of living of the parties.  It is not appropriate for me to conduct a detailed investigation into the finances of the parties at this stage and so I am entitled to take a broad brush approach.

Marital Standard of Living

15.  L said that throughout the marriage for about 10 years, S had been the sole breadwinner of the family.  Apart from having worked for about 18 months in about 2005 to 2007 as a sales representative with a monthly salary of about $10,000, L’s was a homemaker and was primarily responsible for taking care of the daughter.  However, she ceased working in January, 2007 because she was diagnosed as suffering from reactive depression and benzodiazepine dependence.  She has not been working since then.   Further, she was diagnosed to have suffered from mild obstructive sleep apnoea in about 2012 and in about February, 2013, she was also certified by the West Kowloon Psychiatric Centre to be a disabled person, for her neurosis, a mental illness.

16.  L said that with S’s stable and regular income together with government housing benefits which S had received up to early 2012, the family used to enjoy a comfortable lifestyle and standard of living.  S was responsible for paying all the mortgage instalments out of the housing benefits from the government.

17.  For general expenses, S paid her about $8,680 per month ($2,000 per week X 4.34 week) for food of the family only.  S also paid all the outgoings directly and would reimburse her for her purchases she had made from time to time including shopping for herself and the daughter, medical bills and health food supplements.  S also paid her weight-losing plan by instalments of $1,000 per month, and he also used to pay her health/body treatment.

18.  S said during the marriage her average monthly expenses were not less than $30,000.  The family would also take at least one holiday to South East Asian countries each year and would often dine at nice restaurants during weekends.

19.  L said the family used to enjoy a comfortable lifestyle.  In my view, whether one has a “comfortable lifestyle” is rather subjective and must be seen in the context of the case.  On the evidence before me, it seems to me clear that the family is not of great wealth and with S as the sole breadwinner, it is just an ordinary middle class household. The parties do have not savings of substantial amount and the only noticeable assets are the S’s pension funds and the matrimonial home.  

S’s Undertakings

20.  During the hearing, Ms. Yip, on behalf of S, agreed to undertake to pay L’s electricity, water, gas, rates and government rent, management fee of the matrimonial home and the monthly fee of one mobile phone in the total estimated sum of about $3,266.50.  S also agreed to undertake to pay the monthly instalments of L’s weight-losing plan and the insurance premiums of L’s 4 insurance policies in the sum of about 1,424.  By the time of the hearing of 6 June, 2013, the weight-losing plan had already finished.  

21.  The total amount that S agrees to undertake to pay is therefore about $4,690.50 ($3,266.50 + 1,424). 

22.  There were some arguments from Ms Ng during the hearing over whether the utilities accounts should be changed back to L’s name.  In my view, given that an undertaking is as good as an order and it is highly likely that the matrimonial home will have to be sold for division up of the assets, together with the fact that what we are dealing with here are merely interim measures, such arguments are wholly unnecessary and wastes of time.

23.  The total amount that S undertakes to pay is about $4,690.50 ($3,266.50 + 1,424). 

24.  As a result of these concessions and together with the fact the parties are able to agree on the figure for Entertainment / Presents (for both L and the daughter) at $750, what remains are the following 12 items in dispute: (1) food (including meals out of home), (2) household expenses, (3) transport, (4) clothing/shoes, (5) personal grooming, (6) medical expenses, (7) domestic helper, (8) insurance for domestic helper, (9) cigarettes, (10) now TV service, (11) home internet service and (12) home telephone/fax line.

L’s Case

25.  In her 1^st Affirmation dated 4 December, 2012, L stated that in the recent half a year she needed about $25,000 per month which are made up as follows: 

Items	Average Monthly Amount (HK$)
Medication (psychiatric illness, liver illness and other physical illness)	15,000
Daily living expenses	8,000
Payments for water, electricity and gas bills	2,000
Total:	25,000

26.  She does not provide further breakdown.

27.  However, about one and a half months later, in her Form E dated 22 January, 2013, she stated her general expenses as follows,

General Expenses
Item	Amount (HK$)
Utilities (electricity, rates, water, telephone & internet)	3,755
Management Fees	1,728
Food	1,200
Household expenses	1,500
Insurance premium (for part-time domestic helper)	15
Domestic helper (charged at an hourly rate of $90)	1,800
Others (Laundry)	500
Total:	10,498

28.  As for her personal expenses, they are as follows,

Personal Expenses
Item	Amount (HK$)
Meals out of home	4,800
Transport	5,000
Clothing/Shoes	750
Personal grooming (haircut, cosmetics & skin care products(	5,700
Entertainment / presents	500
Medical (medical equipment rental & health food supplements)	12,000
Insurance premium	285
Contribution to parents	200
Others (charity donation, cigarettes, loan repayments)	4,983
Total:	34,218

29.  Therefore, taking all the general and personal expenses together would give a figure of $44,716.  L also states that she would incur $250 per month as entertainment / presents for the daughter, hence, the total figure is $44,966 ($10,498 + $34,218 + $250).

30.  There is virtually no explanation from L as to why between such a limited span of time, her expenses have jetted up from $25,000 to $44,966, an increase of 79.86%.

L’s Needs

31.  I now deal with the items in disputes.  

32.  (1)  Food: In her Form E, L claims for food in the sum of $1,200 and meals out of home for $4,800, totalling $6,000. 

33.  Ms. Ng accepted that there are no evidences or particulars as to how these figures are arrived at.  In her skeleton submissions, Ms. Ng said L is now claiming just $4,500 which is a ‘much more reasonable sum’ or equivalent to 5 meals that P has spent in the Island Shangri-La Hotel.  Ms. Ng also submitted that as L is living alone, rather than sitting alone at home she tends to eat out on a regular basis in her neighbourhood, this would lighten her loneliness and depressed.  Ms Ng however admitted that this explanation is not in any evidence before me. With respect, she, as an advocate, is not allowed to give evidence from the bar . 

34.  As for S, he said that $3,000 should be sufficient.  Ms. Yip, for S, submitted that according to L’s 1^st Affidavit of 4 December, 2012, she just needs $8,000 per month for her daily expenses and out of these $8,000, $5,000 are, according to her Form E, for travelling expenses.  L has not given any justification or explanation on why the amount has increased to $6,000.  Even on L’s evidence, the family would only dine out occasionally during the marriage.  Hence, $3,000 should be sufficient.

35.  I have no doubt that $6,000 is an exaggerated sum.  Even on L’s own evidence, S used to give her $2,000 every week for food expenses for the whole family which is roughly about $8,680 per month ($2,000 X 4.34 weeks).  On this basis, L’s share would be $2,893 which means about $96 per day (ie $2,893 X 1/30).  Taking a broad brush approach I would add $1,000 to cater for L’s dining out and daughter’s share which L may need to be responsible when she is having access, making a total of $3,893.  This represents about $130 per day, which I think is reasonable.  I would round it up to $4,000.

36.  (2)  Household Expenses: There are 2 items on L’s Form E, namely (1) household expenses for $1,500 and (2) laundry for $500.  Ms. Ng conceded that there are no particulars or breakdown as to how these sums are come up to, nor are there any documentary receipts. On behalf of L, Ms Ng now claims for a total sum of $1,000 only. 

37.  On the other hand, Ms. Yip argued that since L is living alone, $500 for household expenses should be sufficient and as for laundry, for the reason that there is no evidence from L in support of this item, S is offering nothing.  In any event, the undisputed evidence is that there is a washing machine at the matrimonial home which L can make use of.

38.  In my view, whether it is $1,000 or $500 as stated by the parties, they are just estimates and are in no way precise figures.  That said, on the one hand it would appear that S’s refusal to take into account the possibility that L may need some dry-cleaning occasionally is too harsh to her but on the other, I would certainly consider that the initial $500 as claimed by L is excessive.  Doing the best I can and again taking a broad brush approach, I would give $800 for the household expenses. 

39.  (3)  Transport: This item is as much as $5,000 per month. 

40.  L explained that because of her mental illness of neurosis, she would feel frightened and panic when travelling on public transportation. The people around her seemed to crush and trap her. Thus, she has no alternative but to travel by taxi or by paging for the service of transportation companies, which I understand, are the services provided by light goods vehicles.  She affirmed that on a number of occasions, she actually tried to take bus or MTR but was too nervous or panic to do so.  

41.  Ms. Ng tried to adduce evidence and particulars in her skeleton submissions on the numbers and the purposes of the trips that L needs per month and the estimated amount required for such trips.  As she is not entitled to slip in these evidence from the bar table, I would not take these into consideration.

42.  Ms. Yip questioned that all the receipts produced by L are for the month of November, 2012 only; and according to her calculation, apart from one receipt the amount of which is illegible, the receipts add up to $3,116 only.  She also drew my attention to the fact that some of the receipts produced by L do not show a journey directly between L’s home and a destination.  It means that at some point L must have taken some means of public transportation in order to complete the journey.  Ms. Yip also submitted that ‘neurosis’ is a general term covering a wide variety of disorders and there is no concrete medical evidence showing L is suffering from phobia of public transport or being amongst a crowd.

43.  I must say I agree with Ms. Ng. 

44.  Even on L’s own evidence as set out in her 1^st Affirmation, she affirmed that most of the transportation expenses are spent on travelling for medical treatments.  She reckoned that she would need medical treatments for about 15 days per month and would have to spend about $240 each.  On that basis, even on L’s own version, the monthly sum would be $3,600 only (15 X $240).  My attention was drawn to one of the receipts, on which she stated that the taxi fare was incurred after having boxing class on 13 November, 2012.  If she was able to attend boxing class, I wonder whether she would still require medical treatments as many as 15 times per month.  In any event, apart from her contention in the affirmation, there is no evidence on the numbers of medical treatments per month.  Further, there is simply no medical evidence in support of L’s contention that because of her illness she needs private means of transportation or the use of them are prescribed by doctors or upon medical advice which is conducive to her recovery.  I have no doubt that L has exaggerated her claim.

45.  That said, I do accept that Ma Wan, the place where L is residing, is in a rather inconvenient location and as such, she may need to incur higher transportation costs.  Though there is no evidence as to her or the family’s pattern or mode of transportation during the marriage, I do take the family’s middle class background into consideration and this means that on balance, L should have been able to take private means of transportation such as taxi from time to time when necessary.  Doing the best I can and again taking a broad brush approach, I would assess it on the basis that L may need to travel say on 20 days per month and I would give on average $120 for each day.  This would give a figure of $2,400.

46.  (4)  Clothing / Shoes: The original amount in Form E is $750.  In the hearing, L reduced it to $500.

47.  Whilst Ms. Yip submitted that there is no evidence of pattern of spending on this item during the marriage, S is willing to pay $300 for this item. 

48.  Hence, there is a difference of $200.  I would err in favour of L and give $500 accordingly.

49.  (5)  Personal Grooming: L’s Form E states a total sum of $5,700 which is said to include haircut, cosmetics and skin care products.  At the hearing, Ms Ng informed me that L is claiming for $1,400 only.

50.  Ms Ng admitted that there are no particulars explaining how the sum is arrived at.  There is also no evidence as to what and how L spent on this item during the marriage.  The particulars and the receipts that L has produced are all on purchases made after the breakdown of the marriage. 

51.  As for S, he offers $300 only but without giving any particulars as to how he comes up to this figure.

52.  In my view, the substantial concession made by L, reducing the figure from $5,700 to $1,400, shows nothing but the gross inflation of the original figure on her part.  That said, given that the family is a middle class family and given her relatively young age, I think it is reasonable for L, as a lady in her late thirties, to spend some money on personal grooming.  I would therefore err in her favour and doing the best I can, I would give a figure of $1,000.

53.  (6)  Medical Expenses: The original amount in L’s 1^st Affirmation is $15,000.  In her Form E, she reduces it to $12,000 and during the hearing, Ms Ng said L is willing to accept $10,000, a one-third decrease from the initial figure.

54.  L said that due to her depression, various physical illness and over-weight problem, she has all along received treatment from Chinese herbalist and acupuncturist and she has also employed therapies such as Tuh Nai (   ) and Fire Therapy (  ).  She also has the habit of consuming health food supplements.  In her affirmations, she said that S previously paid all these for her which amount to an average of $15,000 per month.

55.  Ms Ng informed me that out of the $10,000 now being claimed, $2,000 are on health food supplements, $1,400 on the rental of the breathing machine for treating L’s apnoea and the remaining $6,600 for medical bills and body treatment.  She however admitted that this breakdown is not in any evidence adduced before me.

56.  Ms Yip argued that L, as the spouse of S, is entitled to the use of government clinics operated for civil servants and their dependants.   Further, L all along has been receiving treatment from the West Kowloon Psychiatric Centre for her mental illness.  Ms Yip also mounted various challenges which I think would be more convenient for me to deal with in the following paragraphs.

57.  I have no doubt that L’s claim is excessive.

58.  First, L is already receiving primary medical care from the West Kowloon Psychiatric Centre which I understand is free of charge for L as the spouse of a civil servant.  Whilst I accept that L may find traditional Chinese medicine beneficial to her and accordingly may make proper use of it, however, on the evidence before me, it seems to me that she has lavished herself uninhibitedly on various kinds of alterative therapy.  For instance, the receipt issued by one H.C. L. B. E. Therapy Centre shows that in July, 2012 she spent a total of $10,011 on treatment and healing food (食療) and in August, 2012, a total sum of $11,171.  It has to be borne in mind that these are from one service provider only and there are others.  On the face of the receipt, it is not known what these treatments and healing food are for.  There is also no acceptable medical evidence, for instance at least some evidence from a Registered Chinese medicine practitioner, to suggest that the consumption is necessary. 

59.  Secondly, Ms Ng mentioned that L needs $2,000 for health food supplements every month.  I do not know how she comes up with this figure and whether this figure overlaps with the healing food that I mentioned in the last paragraph, but at any rate, in my view, $2,000 for each and every single month is excessive and unreasonable. 

60.  Thirdly, some of the certificates issued by a Chinese medicine practitioner regarding L’s back pain appear to relate to the slip and fall accident that L sustained in a supermarket in September, 2011.  On the evidence before me, I accept it is likely that L has recovered from the injuries.  First, the certificate states that there was no further treatment after 13 June, 2012 and that L could do exercise at home.  Secondly, the undisputed evidence is that she has already received $250,000 compensation from the supermarket as full and final settlement.  Thirdly, on 8 November, 2012 L spent $2,182 on the purchase of 24 boxing lessons.  It shows that she is able even to attend boxing class.  All these indicate that, on balance, she has recovered from the injuries.  Therefore, the medical expenses should not be as much as before.

61.  There are some disputes over when S informed L about the cessation of his housing allowance which is in the sum of $17,550.  On her own evidence, L admitted that S only told her in about January, 2012 that the benefit would come to an end in March, 2012 and that he was not prepared to pay any medical bills of traditional Chinese medicine.   As for S, he said that he had reminded L of this and hence the worsening of the family’s financial position as early as since 2010.  He therefore repeatedly reminded L to gradually stop attending private medical treatment and shift to government clinics which are free of charge and as of right as the spouse of a civil servant. 

62.  I do not need to resolve this factual dispute in this application.  On the evidence before me, I accept that L may need some private medical treatment including Chinese medicine and perhaps body treatment to handle her over-weight issue but only at a reasonable sum.  As a matter of fact, S said in paragraph 10 of his affirmation that from January, 2012 to mid 2012, he was paying L the approximate sum of $3,000 to $4,000 per month for the “hygiene products and treatments” and “true medical expenses”.  I think this should reflect what L thought she needed at the time and this sum also appears to me to be reasonable.  I am of course aware that according to my finding, it is likely that L has recovered from the accident, but I also accept that L is now required to pay the rental of the breathing machine.  For these reasons and taking a broad brush approach, I am prepared to come up to a figure of $4,000.

63.  (7)  Domestic Helper: The original figure as stated in Form E is $1,800. 

64.  During the time when L was working in 2005 to 2007, the family had employed a foreign domestic helper.  As from September, 2011, a part-time domestic helper was employed to assist in the household chores. 

65.  In her Form E, by stating a figure against this item, it appears that L is still enlisting the help of a part-time domestic helper but she fails short of providing any breakdown or particulars of the current situation.  Ms Ng also admitted that L has not stated, either in her Form E or in the affirmations, why she needs the help of a part-time helper.  Instead of asking for 20 hours, Ms Ng said L is now seeking 10 hours only, ie a sum of $900. 

66.  Ms Ng, in her skeleton submissions, stated that since L suffered a slip and fall injury in September, 2011, the family had to employ a part-time helper to do the cleaning work and L is still suffering aches and pain on the injured parts of her body.

67.  Ms Yip submitted that the foreign domestic helper was required previously because L had to work.  That situation ceased after L had stopped working.   As for the part-time helper, now that L has recovered and is not working, there is virtually no need for this item, the previous reason or pattern simply does not apply. 

68.  It cannot be disputed that the family had the use of a part-time domestic helper before the breakdown of the marriage; this has been admitted, at least indirectly, in paragraph 34(b) of S’s Reply to Answer and Answer to Cross Petition.  However, there is no evidence from either side that the part-time domestic helper was required because of L’s injuries or that S is still suffering aches and pain.  Ms Ng is not allowed to give evidence. The only evidence I have is perhaps the coincidence in time:  the family started to employ a part-time helper since September, 2011 and that was the time when L got injured.  L reduces this item by 50%.  There is no explanation why she is able to do so.  Is this because 50% is the actual figure that L is spending or she is prepared to spend 50% less?  Thus, on the evidence before me, I have great doubts over whether L is still employing a part-time helper.  Even if she is, I do not think a part-time helper is her immediate and reasonable need.  First, the situation has changed entirely.  The household used to have 3 persons but L is now the only one.  Secondly, I fail to see why L cannot do the household chores by herself.  There is some suggestion that L has not been capable of handling the chores because of her injuries.  However, I have already found it is likely that she has recovered.  Finally, she fails to provide any particulars and explain why she needs this item.  

69.  For the above reasons, I would not award any sum on this item.

70.  (8)  Insurance for domestic helper: Since the claim for domestic helper fails, I would also decline to award this item.

71.  (9)  Cigarettes: In her Form E, this item is included under “charity donation, cigarettes, loan repayments” in the total sum of $4,983.  There are no particulars or breakdowns.

72.  During the hearing, the parties referred to the expenditure on cigarettes only, thus I assume that L is not pursuing the other two items.  Ms Ng said L asks for a sum of $780 which represents 15 packs of cigarettes per month (ie $52 X 15 packs).  Again, this is not in any of the evidence before me. 

73.  On the part of S, whilst accepting L is a smoker, Ms Yip argued that there is no evidence regarding L’s smoking habit. S is not offering any sum under this item.

74.  It is true that there is no direct evidence on L’s smoking habit but it does not mean that there is no evidence on which I can draw inference.  I was referred to paragraph 13 of S’s Reply to Answer and Answer to Cross Petition where he said he had on numerous occasions advised L not to smoke at home as this would harm the health of the daughter. To me, this somewhat shows that L is more than a mere social or occasional smoker.  However, I do bear in mind that L tends to inflate her figures.  Doing the best I can and taking a broad brush approach, I would give half of sum claimed, ie $390.

75.  (10)  now TV service :  This amounts to $460.  I think I only need to be brief on this item.  For the reason that the family already had this service subscribed before the breakdown of the marriage, I consider this is reasonable for L to continue to enjoy it. 

76.  (11)  Home Internet Service: This amounts to $220.

77.  There is a duplication of internet service here.  There was already an internet service installed at the matrimonial home which was in S’s name and at the beginning of the hearing he was prepared to undertake to pay this sum.  However, what transpired during the hearing was that after the breakdown of the marriage, L had subscribed for a new service and thus put the original service in disuse.  Her reason is that since the account was open in S’s name, she feared that her e-mail account or messages would be subject to hacking by S or his friends.  With respect, even if hacking is feasible as a matter of technology, there is virtually no evidence in support of her suspicion or fear.  I do not think it is reasonable for her to discard the original service which is still effective and asks S to pay for another one.  I would not allow this item. 

78.  (12)  Home telephone / fax line: This concerns an insignificant amount of $63.  However, there is a dispute as to whether such line was installed during the marriage.  Again, I am not in a position to resolve this issue for the purpose of the present application.  I would err in favour of L and allow this item.

79.  Therefore, on the basis of the awards above, the items are assessed as follow,

Items	Amount (HK$)
Food	4,000
Household Expenses	800
Transport	2,400
Clothing / Shoes	500
Personal Grooming	1,000
Medical Expenses	4,000
Cigarettes	390
now TV service	460
Home telephone/fax line	63
Total:	13,613

80.  Inclusive of the items that S has undertaken to pay which is in the region of $4,690.50, he will be effectively paying an interim maintenance of about $18,304.  Though L is presently receiving disability allowance in the sum of $1,680, I would not make a deduction at this interim stage.

S’s Ability to Pay

81.  I now turn to S’s ability to pay.

82.  Since I do not need to conduct a detailed investigation into the finances of the parties, I can be brief on this.

83.  In his Form E, S gives a total monthly expenditure of $72,466.23.  However, these already include the expenses that he has been paying for L in the total sum of about $7,900.  They are:

Items	Amount (HK$)
Utilities (matrimonial home)	2,600
Management fees (matrimonial home)	1,800
Insurance premium (matrimonial home)	500
Government Rent (matrimonial home)	500
Weight-losing plan for L	1,000
Insurance premium for L	1,500
Total:	7,900

84.  Hence, S’s monthly expenditure should be $64,566.23 only ($72,466.23 - $7,900).  He is earning a salary of $87,280, thus leaving a balance of about $22,714 ($87,280 - $64,566.23).  As the effective interim maintenance that I have assessed is about $18,304 only, this is within his competency to pay.

85.  I am aware that S said that he would like to rent a flat for him and the daughter and this would cost him about $18,000 per month.  If possible, he would also retain a domestic helper.

86.  I would not take these into consideration.

87.  First, there is simply no evidence that he has taken such moves.  Secondly, given that what we are dealing with here are interim measures, there is no reason why he should not wait for the final resolution of the financial matters.  I do not see any urgency in the matter. Thirdly, even according to his Form E, his monthly expenditure is $72,466.23, he would not be able to afford to rent a flat anyway.

Observations

88.  Before I conclude, I have to say I am not impressed by the way in which L dealt with this application.  As can be seen above, she started off with an already rather high figure in her 1^st Affirmation, then jetted it up to nearly double of it in her Form E, and subsequently reduced it to a more acceptable level in her solicitors’ skeleton submissions clearly, in my view, for the purpose of negotiation.  Her amazing flexibility in the figures causes any reasonable mind to cast doubt on the truthfulness of the original figures.  For instance, common sense tells us that medical expenses should be essential expenses and accordingly there should be little room for reduction, but in L’s case, there is an inexplicable one-third reduction.  With respect, this application is not meant to be a game to be played out like this.  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.  What L should have done is to act sensibly and reasonably in providing a genuine and realistic figure for the other side’s consideration.  I will certainly take these observations into consideration when it comes to costs.

89.  Further, despite my repeated reminders that the present exercise is meant to provide an interim maintenance pending the final resolution of the ancillary relief dispute, and that there would be final adjustment at the end of the day, it is unfortunate that the parties however have mounted their challenges on basically all the items, even those which are of insubstantial amounts.  The result is that the costs occasioned are, in my view, way out of proportion of the stake involved.  It is perhaps due to the high emotions involved in proceedings of this kind that the parties are determined to fight this legal battle on all fronts and at all costs and have not been able to sensibly and reasonably deal with the present application.  I think it is pertinent for me to sound a warning again by quoting the following paragraph in the Court of Appeal judgment in T, L v. S, N, CACV No. 196/2009 (date of judgment: 19 October, 2010): 

“10. … In view of the hostility and deep distrust that existed between the parties, their legal advisers should have taken a more dispassionate stance so as to focus on the real issues in a realistic way. And instead of each putting his or her case at the highest, the interest of clients would be better served if legal advisers had firmly advised them what was sought to be established in litigation might be achieved at wholly disproportionate costs, and might not overall be in the family’s best interests...”

90.  Finally, legal representatives of the parties should be disciplined in not trying to adduce evidence which is simply not in the parties’ affirmations or properly adduced. 

Conclusion and Orders

91.  For the above reasons, I give an order that S do pay maintenance pending suit at a monthly sum of $13,613, commencing from 8 July, 2013 and thereafter on the 8^th day of each and every month until further order of the court.  I will also hold S onto his undertakings which will form part of this order.

92.  As for the back-dating of the maintenance pending suit, I will back-date it to 8 February, 2013, the date when I gave the interim interim maintenance in the sum of $15,000.   As this $15,000 does not include the management fee in the sum of about $1,800 that S has been paying, the interim interim maintenance is effectively about $16,800. The shortfall is about $1,504 per month ($18,304 - $16,800).   There are 5 months from February, 2013 to June, 2013, hence a total of $7,520 ($1,504 X 5).  I have to stress again that the sums awarded here are interim measures and are subject to adjustment at the final resolution of the financial matters.

93.  I order that S do pay a sum of $7,520 as maintenance pending suit within 14 days.

Costs

94.  On the question of costs, I have already indicated that I would make an order nisi that costs of and occasioned by this application be reserved and be determined at the final hearing of the ancillary relief proceedings and I so order.