HTL v. K, RE

HCMP 270/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 270OF 2016

(ON AN INTENDED APPEAL FROM FCMC NO 1678 of 2013)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an application for leave to appeal against the judgment of Judge Melloy [“the Judge”] in FCMC 1678 of 2013 on ancillary relief. On 10 November 2015, the Judge discharged the maintenance pending suit order of 11 July 2014, rejected the husband respondent’s application by way of judgment summons regarding arrears of such maintenance, refused his application for variation of such maintenance. The judge also ordered by way of final ancillary relief that the petitioner wife shall retain the former matrimonial home. She further ordered the petitioner wife shall pay the respondent husband a sum of $550,000 (being 40% of her pension earned during her married life) upon receipt of that pension when she retires in full and final settlement of his claims for ancillary relief.

2.  The respondent husband applied for leave to appeal against that decision.  The Judge refused leave on 19 January 2016.

3.  By a summons of 2 February 2016, the father applied to this court for leave to appeal.  On 24 February 2016, he wrote to court to seek a stay of this application pending his application for legal aid.  On 26 February 2016, the court granted him a stay of 42 days on condition that he should apply for legal aid by 4 March 2016.  On 3 March 2016, the Legal Aid Counsel lodged a memorandum of notification in respect of his application for legal aid.  On 18 April 2016, the court was notified that legal aid had been refused.

4.  Pursuant to s 63A(2) of the District Court Ordinance Cap 336, leave to appeal should not be granted unless this court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

5.  Having read the grounds of appeal attached to the respondent husband’s affidavits of 2 and 24 February 2016, we are not satisfied that the appeal has any reasonable prospect of success.  Nor do we see any other reasons in the interests of justice to have the appeal heard.

6.  The grounds of appeal put forward by the respondent husband were set out by him at page 2 in a document attached to his affidavit of 2 February 2016.  Apart from what he said to be his present circumstances and his application for legal aid in other matters, he said he requested for an order for 50/50 share of the matrimonial assets on equal basis.  He also asked for the former matrimonial home to be retained for the living of the children until the son reaches 18 and then it be sold and divided 50/50.  He also asked for an oral hearing.

7.  In his affidavit of 24 February 2016, he further contended that it is not in the best interest of the children for him to have no maintenance.  He said this would impact on the quality of their access with the father and their perception of him.  He said there should be maintenance for the children when they were with him.  He asked for a yearly lump sum for that purpose.  He also referred to Articles 25 and 37 of the Basic Law.

8.  In the judgment of 10 November 2015, the Judge had carefully considered the respective circumstances of the parties.  On the evidence, the Judge came to the conclusion that the respondent husband has earning capacity though he deliberately chosen not to make good use of it.  The Judge found as follows at §36 to 42 of her judgment:

“ 36. The husband has consistently maintained throughout the ancillary relief proceedings that he suffers from ill health and that he is unable to earn his own living, either to support himself or to maintain his children.  Consequently on the 15 May 2014 the court ordered inter alia as follows:

2. The parties do agree within the next 5 days on a joint expert to assess the health condition of the Respondent, failing an agreement the parties do write to the Court for direction 3 days thereafter on the engagement of the said joint expert;

37. On the 28 May 2014 the court further directed as follows:

The Court has received a number of letters regarding the appointment of a single joint expert to give medical evidence at the forthcoming ancillary relief trial.

Given that the Respondent has not provided any estimate from his preferred expert, the Court directs that Dr K be appointed because although his hourly rate is HK$5,000 per hour, his estimate for both preparing a report and attending Court start at a slightly lower rate than the estimate of Dr L.

It is a matter for the Respondent if he wishes to apply to the Court for leave to call any addition medical evidence.  If he wishes to do so please seek leave by close of business on Friday 30^th May 2014.

38. The husband refused to attend any appointment with Dr K.  Therefore there is nothing to substantiate his claim that he is suffering from ill health to the extent that he is so incapacitated that he cannot work in any capacity.  The wife further points out that he did not make this claim until after he lost the first custody battle.

39. It is also of note that although the husband carries a stick, he is often seen walking without it or he is seen carrying it.  This point is also substantiated by the surveillance report dated the 7 June 2015 by V Consulting Limited.

40. The wife also produced a summary of the husband’s activities from the 18 June 2014 to the date of trial as seen on his face book page.  From this is can be seen that the husband was actively involved in many different things.  He took part in numerous demonstrations.  He even participated in three hunger strikes.  I accept that the husband appears to be perfectly healthy.  In such circumstances it seems to me that the husband has chosen not to work in a paid capacity.  Instead he has taken on other roles which are of interest to him and which he believes are important.  This is his choice.  It is also one that has impacted significantly on the welfare of his children.

41. I accept that the husband is reasonably well educated as he claimed during the child related proceedings.  In particular I note that he claimed in various e-mails to the wife to have previously taught English to Chinese University graduates. I accept that that is more likely than his claims to have been an US Government Intelligence officer or a business man.  I also accept that the husband was a pastor during the marriage and that he contributed towards the finances of the household during that time.

42. All in all I am not of the view that the husband has any health issues which impact on his ability to earn a reasonable living.  In so far as his earning capacity is concerned it seems to me that the husband certainly does have the ability to support himself and to make a reasonable contribution towards his children’s maintenance, if he chose to do so.  The wife suggests that he should be able to earn HK$15,000 per month by teaching English.  This seems to me to be a reasonable expectation in the circumstances.  Unfortunately it seems to me that regardless of any order that the court might make, it is extremely unlikely that the husband will comply with any order to pay maintenance based on his deemed earning capacity.  Thus the burden of raising the two children from a financial perspective will most likely continue to rest solely with the wife.  This is something that I intend to take into account when coming to a final determination on ancillary relief.”

9.  The Judge also concluded that he was guilty of material non-disclosure and had concealed some assets.  At §31 of the judgment, she said:

“ 31. In broad terms I accept the wife’s complaints with respect to the complete inadequacy of the husband’s financial disclosure.  The wife argues that the husband has refused to produce documents and has further refused to answer perfectly reasonable enquiries raised by her.  I accept that an adverse inference should be drawn in such circumstances.  For the avoidance of doubt I accept that the husband is more likely than not to have some undisclosed assets.  However I do not accept that the husband is a man of considerable means given the parties lifestyle in the past which was fairly ordinary and his earning capacity which was similarly limited.  It seems to me that the adverse inference to be drawn must be seen in the context of the case.  By the same token I accept entirely that as far as possible the husband should not be allowed to benefit from such an approach.”

10.  The Judge also found that the respondent husband had not contributed to the family since separation.  The following findings at §§33 and 34 are pertinent:

“ 33. On an initial assessment of the facts it seems likely that an award that caters for the needs of the wife and children will far exceed an award based on the sharing principle.  The husband has not provided any form of maintenance for the wife and children since their separation.  He sought and was awarded maintenance pending suit pending this trial when it was understood that there would be a full enquiry into his earning capacity and alleged health issues.  The wife’s needs and those of the children are acute.  The wife needs somewhere for herself and the children to live.  She needs to be able to maintain them appropriately and to provide for their future education costs.  The wife is wholly responsible for the children’s financial needs.  Her income is reasonable.  She currently earns HK$49,214.75 per month after the deduction of her provident fund.  However this is not excessive and her budget is tight.  In the past she has earned some money by investing on the stock exchange.  I accept however that this is an extremely risky endeavour and one that may not produce good results in the future.  I accept that she does not have the ability to increase her income other than this and that she has no other property or other financial resources other than as disclosed.  Previously the wife had some savings which have now been virtually depleted and she also took out a loan to help with cash flow difficulties.  I accept that the wife has survived to date by being extremely frugal.

34. The husband for his part chooses not to work.  (This will be discussed in more detail below).  He has recently moved to a Public Housing Unit so his housing needs are met.  I accept as indicated above that he probably has some other undisclosed financial resources.  I have noted in particular that during the period when the wife paid him maintenance that he would routinely cash in her cheques very late which presupposes that he did not need the money urgently.  He is also entitled to a pension from the United States as he is a US citizen.  According to the documentation filed (albeit very late) the husband is entitled to US$615 per month if he elected to take his pension from aged 62 or US$1,074 he took it from the age of 70.  The husband is currently 58 years of age.  Although the present situation is a little unclear it is thought that he is currently receiving CSSA.”

11.  Due to the poor condition of the matrimonial home when the respondent husband left the same, the Judge also found that substantial amount had to be incurred by the petitioner wife to renovate the same in order to make it marketable.

12.  Moreover, the Judge found the respondent husband to be guilty of litigation misconduct which had led to a huge costs liability on the part of the petitioner wife.  The judge had this to say at §48:

“ 48. It is generally acknowledged that litigation misconduct should more properly be reflected in an adverse costs order.  In this instance the husband has gone out of his way to undermine the process.  He has behaved in the most appalling manner; he has refused to comply with court orders, he has not made full and frank disclosure, he has deliberately flouted rules and regulations to the extent that he appears to have contrived illness and two hospital visits in order to avoid the final hearing.  At the end of the day he simply refused to attend the final adjourned hearing preferring to visit Macau instead.  His behaviour is contemptuous.  The pressure on the wife as a result has been enormous.  In such circumstances I accept notionally that the wife should have her costs, including the costs of the hearing in June on an indemnity basis.  However I also accept that given that it will be virtually impossible for the wife to enforce that costs order, that the more sensible way to proceed is for the wife to retain the matrimonial home with no order as to costs.”

13.  The respondent husband did not advance any grounds to suggest the Judge had made palpable error in making these findings. This court has no arguable basis to intervene with these findings.   

14.  Against these findings, the Judge was perfectly entitled to hold at §46:

“ Further I accept entirely that all things being equal the husband should contribute both towards the children’s future education expenses and their current maintenance. I also accept that it is unlikely that he will voluntarily do either.”

15.  The Judge was also plainly right in deciding the case on the basis that realistically irrespective of the award made the court the petitioner wife would have to shoulder the financial burden for the maintenance of the children solely.  The petitioner wife gave an undertaking to the court that she would be responsible for the cost of the children’s future tertiary education.

16.  Viewed against these lights, the Judge’s award of a share of the pension to the respondent husband is already very generous. After all, the petitioner wife still has to work for another 13 years and at the same time take care of the 2 children when the respondent husband may continue to lead his life without any gainful employment.  We have no hesitation in saying that the intended appeal is plainly frivolous and vexatious. 

17.  For these reasons, we refuse to grant leave to appeal.  Though the respondent husband asked for an oral hearing, we are of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination to be reconsidered at an oral hearing inter partes.