CMT v. AS

FCMP 219 / 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 219 OF 2007

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J U D G M E N T

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    (Custody and Maintenance)

INTRODUCTION 

1. This is an application by the Applicant (“W”) seeking custody, care and control of the child, Z, born out of her marriage with the Respondent (“H”).  W further seeks maintenance for herself and for Z.

2. The application was initially issued by W on 21 December 2007 under s.5 of the Separation and Maintenance Orders Ordinance Cap. 16 (“SMOO”) as well as under s.8 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”).   Although H and W registered their marriage in Hong Kong, at the time of the registration, apparently H was already married in Pakistan. W is now only proceeding under SMOO. Initially, it appears that H may challenge the validity of his marriage with W, as he has said in his 1^st Affirmation and his 2^nd Affirmation that his marriage to W is bigamous and null and void. However, subsequent thereto, there has not been a challenge to W being a “married person” under the SMOO.  

3. At the first direction hearing on 28 February 2008, H was legally represented. By consent of the parties, an “interim” interim order was made for H to pay HK$2,500 per month, being HK$1,250 for each commencing from 1 March 2008 (“1^st Interim Order”).  At the same time, H also undertook to pay a sum of HK$10,000 to W for her to pay for the rental deposit and for purchase of household and furniture items for her and Z to move to new accommodation.  Thereafter, on 30 April 2008, W applied for an upward adjustment of the 1^st Interim Order.  The hearing was fixed in May 2008, when H turned up acting in person.  The hearing had to be adjourned part-heard to 20 June 2008.  Prior to the resumed hearing, new solicitors and Counsel were suddenly instructed by H to appear on his behalf, and due to the shortage of time in preparing for the interim hearing, they applied for an adjournment.  I granted the adjournment and made a 2^nd “interim” interim order, ordering H to pay a total of HK$5,500 per month as from 1 July 2008 until further order, being HK$3,000 for W and HK$2,500 for Z, plus a sum of HK$320 for Z’s summer camp.  (“2^nd Interim Order”).

4. Eventually, after hearing further both sides’ argument, on 1 September 2008, this Court handed down a judgment and ordered that H to pay interim maintenance of HK$7,000 per month, being HK$3,500 for W, and HK$3,500 for Z, as from 1 September 2008 until further order (“3^rd Interim Order”). 

5. I understand that H has not been complying with the interim maintenance orders, and W has issued a Judgment Summons for enforcement.  Such Judgment Summons has now been adjourned sine die with liberty to restore after the determination of custody and final maintenance. 

THE LEGAL PRINCIPLES

6. W’s application is made under the SMOO, on the ground set out in s.3(1)(e), namely that where a married person has failed to provide reasonable maintenance for the other party to the marriage or reasonable maintenance and education for that party's children whom the married person is legally liable to maintain, the other party may apply for an order under s.5 of SMOO.

7. S.5 of SMOO sets out as follows:

(1) On any application under section 3, the District Court may make an order containing all or any of the following provisions-

(a)  that the Applicant be no longer bound to cohabit with the other party to the marriage (which provision while in force shall have the effect of a decree of judicial separation on the ground of cruelty);

(b)  that the legal custody of any children of the marriage be committed to the husband, or to the wife, until such children attain the age of 18 years;

(c)  that the husband or wife shall pay to the other party to the marriage, or to the Registrar of the District Court or any third person on such other party's behalf, such lump sum (whether in one amount or by instalments) or periodical payments or both as the court, having regard to the means of both of the parties to the marriage, considers reasonable, and an order under this paragraph for the payment of a lump sum may be made for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining such other party before the making of the order to be met;

(d)  that the husband or wife shall pay to the other party to the marriage, or to the said Registrar or any third person on such other party's behalf, such lump sum (whether in one amount or by instalments) or periodical payments or both as the court considers reasonable, having regard to the means of both of the parties to the marriage, for the maintenance and education of each child of the marriage committed to such other party's custody under paragraph (b);

(e)  a provision for payment by the husband or the wife, or both of them, of such reasonable costs of the parties or either of them as the court may think fit.

(2) An order under subsection (1)(d) directing a lump sum payment for the maintenance and education of a child of the marriage shall only be made for the purpose of-

(a)  providing for the immediate and non-recurring needs of the child; or

(b)   enabling any liabilities or expenses reasonably incurred in maintaining or educating the child before the making of the order to be met, or for both such purposes.

(3) In making an order under subsection (1), the court shall have regard primarily to the best interests of the children.

8. Thus, when dealing with the custody, care and control, and maintenance of Z, this Court shall have regard primarily her best interests, and in considering the issue of maintenance, this Court shall have regard to the means of both parties in deciding what is a reasonable amount.

BRIEF BACKGROUND

9. W was born in July 1975 in the Philippines, and will be 34 years old in July this year.  According to the 1^st social welfare report which this Court called for in relation to the Z’s custody (“1^st SWR”), W completed high school in the Philippines, and had worked in a hamburger shop there for about 2 years before coming to Hong Kong in 1997 as a domestic helper.  Her last contract ended on 12 July 2005, and at the time of termination received a sum of HK$20,032 from her then employers for long service and other payments.  W is a Muslim.

10. H was born in Pakistan in July 1966 and he will be 43 years old in July this year.  According to the 1^st SWR, H had completed high school education, but during the trial, H clarified that he only completed Class 10 at the high school, and therefore he did not actually complete high school.  He engaged in a garment and fashion accessories business for some years in his home country.  H came to Hong Kong in 1996 and initially worked as a casual worker at the new airport.  He was a construction worker, and then he did some other work like trading.  In 2004, he started a fast food/take away/mess business selling Pakistani and Muslim food, and was granted residency in Hong Kong in the same year.

11. Again from the 1^st SWR, it was revealed that H had married a Chinese woman in Hong Kong in October 1996, but such marriage ended in a divorce sometime in 2003.  It now appears that H married again on about 11 February 2003 in Pakistan, and he and his Pakistani wife (“SP”) now have 4 children, all sons, the two elder sons being twins, and the youngest was only born in April last year in Hong Kong.  The younger twin son is now living with and being cared for by H’s mother or a relative in Pakistan.  I understand that according to Islamic law, H is allowed to have four wives.  As I have mentioned earlier, although in H’s 1^st and 2^nd Affirmation, he was alleging that his marriage to W was bigamous, and therefore null and void, in the end, there was eventually no challenge to W being a “married person” who is entitled to apply under the SMOO.

12. According to H, he and W first met in Hong Kong some time in 1997 at the Victoria Remand Centre, while both were visiting their respective friends there.  They soon began an intimate relationship.  It is H’s case that W intentionally “trapped” him into marriage by becoming pregnant.  W denies this.  According to W, she told H she was pregnant in June 2005 and in July 2005, her employment contract terminated.  After her employment contract ended in July 2005, W stopped working, and since then, she has not worked and has been a full time wife and mother. 

13. After W became pregnant, they registered their marriage in Hong Kong on 7 October 2005.  Z was born on 28 February 2006 in Hong Kong, and she is now just over 3 years old. 

14. It is H’s case that W knew at the time of the registration of their marriage in Hong Kong that he had a Pakistani wife and that W knew of the births of his sons.  W denied this and said she only learnt in January 2006 when his mother told her during a visit to Hong Kong.  She admitted, however, that she did suspect that H had a wife or a girlfriend in Pakistan before his mother told her.

15. The marriage between H and W was short lived.  W and Z moved out of the former matrimonial home the first time on 23 February 2007 after being allegedly beaten up by H, but they returned on 13 March 2007.  Later they left the former matrimonial home again on 4 June 2007, when W learnt that H had ceased supporting her stay in Hong Kong.  W alleged that she had to move out with Z to a refuge centre due to H’s violent and abusive behaviour.  Anyway, the marital relationship between H and W lasted for only about 1 year and 9 months. 

16. After W and Z moved out of the former matrimonial home in June 2007, they first stayed in a refuge centre.  After the 1^st Interim Order, she moved into a room in a private flat on 17 April 2008, where they have remained.  Their home is a small room of about 170 sq ft, with an en-suite bathroom. 

17. H withdrew his sponsorship for W’s resident visa at end of May 2007.  She is currently on a visitor’s visa, renewable every 2 weeks.  W has applied to remain in Hong Kong as a refugee, but such was rejected.  Her appeal is still pending, and her assigned immigration lawyers Messrs Barnes & Daly are dealing with this matter.  According to a letter dated 23 March 2009 from Messrs Barnes & Daly, the appeal is unlikely to be heard before the fourth quarter of this year, and may well not be able to be heard until some time in 2010.  If W’s appeal fails, she intends to return to the Philippines with Z, if she were granted custody of Z.  Z, being born in Hong Kong, is entitled to social welfare assistance and has been receiving about HK$2,000 per month, and the amount also depends on the monthly maintenance W receives from H for Z’s benefit.  W, herself, is not at present entitled to any welfare assistance.

18. Last summer, W enrolled Z in a short 2½ week summer course at a nursery, from 1 August to 19 August for 2 sessions a week in the mornings, each session about 2 hours.  H was ordered under the 2^nd Interim Order to pay the summer course fee of HK$320.  It is W’s intention to enrol Z in a local kindergarten for K1 class commencing September 2009. 

19. Turning back to H, from the Business Registration Records (“BR”) provided by W in her 3^rd affirmation (p.96-100), it appears that H started his business on 5 May 2004 selling cold drinks and take-away snacks initially at a shop space in M Mansion.  The name of such business was on 4 July 2005 changed to (“SMC”) (p.98 ).  On 11 January 2006, the name of the business was changed to  (“BJDM”).  After several changes to the business address, before its cessation of business, BJDM occupied 2 shop spaces in CK Mansion.  The nature of the business of BJDM on the BR was described as “mess club/food factory”.

20. It further appears from the BR that the business started off as H being its sole proprietor, and soon thereafter changed into a partnership in July 2004, but then on 11 July 2005, his partner left and H became the sole proprietor.  According to the BR, BJDM ceased business on 25 March 2008 (p.98).  H filed a Notice of Cessation of business on 23 April 2008.  Thereafter, it is H’s case that he has been employed as a shop assistant/chef by the new proprietor of a new business (“BJM”) at exactly the same shop space where BJDM was, and H is still working.

21. It is W’s case that the business is a continuing business and H still is the sole proprietor, and I will deal with this issue later in this Judgment.

22. In July 2007, H’s wife from Pakistan, SP, came to Hong Kong with her 1^st and 3^rd son on visitors’ visas, and have since then been staying in Hong Kong.  They have also applied for residents’ status.  As mentioned earlier, her youngest son was born in April last year in Hong Kong.  Thus, H now lives with SP, and three of their sons, aged 5, 3½, and 1 respectively.

THE EVIDENCE

23. W has affirmed a total of 8 affirmations and 2 Form Es, and H has affirmed a total of 4 affirmations and 2 Form Es.  SP affirmed one affirmation.  They all attended trial to be cross examined.  For all three of them, they swore with their respective hands over or holding the Koran.   The social worker who prepared the two social welfare reports, Miss Ching, also attended the trial for cross examination.  W further served a subpoena on the Immigration Department in relation to the income information provided by H in connection with SP’s application for residence in Hong Kong and a Mr. Lau attended the trial in response thereto.

24. Ms Tsui has attacked H’s credibility.  I agree that prior to the trial, H did appear to be evasive in certain respects, but, at the trial, perhaps it was because I asked him to give oath over the Koran, he appeared to be more forthcoming, and even though some parts of his evidence were still unsatisfactory, generally speaking, he was more co-operative in disclosing further financial statements. So far as SP is concerned, I generally find her a credible and reliable witness, although no doubt she was fully supporting her husband and would not say anything which would be contradictory to his evidence.  W has received much higher education than SP, and it nows seems also higher than H.  She has been working in Hong Kong almost as long as H, i.e. 12 years by the time of the trial.  I find her a clever lady.

S 3(1)(e) of SMOO : GROUND OF W’S APPLICATION

25. It is W’s case that after she left home with Z the second time on 4 June 2007, and until the 1^st Interim Order, apart from a sum of HK$1,000 paid on 17 July 2007, and some money paid for Z at the Mosque on 21 October 2007, H had not paid any reasonable maintenance for W or Z.  W was not really cross examined on what she had said.  I find that she has made out her ground under s.3(1)(e) of SMOO.

THE MAIN ISSUES

26. H opposes Z’s custody being granted to W.  Having said this, in fact, neither party seems to have made a formal custody application.  W has omitted to apply for custody of Z in her Originating Summons, and H himself has not issued any summons for Z’s custody.  Anyway, I shall deem that both parties have made such an application.  In relation to custody, care and control, the main issue is whether it is in Z’s best interest to remain under the care of her mother, or to live with her father and SP and her 3 half brothers, and to be looked after by SP.

27. In relation to W’s maintenance application, the main issues are:

(i)    H’s income

(ii)    W’s and Z’s reasonable needs

CUSTODY CARE AND CONTROL OF Z

28. After the 1^st SWR, this Court called for an updated report in (“2^nd SWR”) which was filed about end of February this year.  In both reports, Miss Ching was of the view that it would be better for Z to have a stable carer and her mother was the one who had looked after her since her birth.  Miss Ching attended the trial, and confirmed that this remains her view as Z is so young. 

29. There was one occasion on 17 February 2009, when Ms Ching was present and H bought along SP and their 3 sons.  Z was observed to be “acquainted with” her three half brothers.  According to W, she usually speaks to Z in English, but has taught Z Tagalog, and is now trying to teach Z Chinese by letting her watch VCDs in English, Cantonese and Mandarin.  Z only speaks simple Punjabi, which is the language spoken by PS and her 3 sons.  Miss Ching said the children were not speaking much, and were all playing happily in the Play Room at the premises of the Social Welfare Services.  SP also spoke to Z in Punjabi and she touched Z and kissed Z’s face.  Z did not reply but occasionally turned her head back to look at SP with a smiling face when PS played the toy with her. 

30. When asked which would be more difficult for Z if she were to go to the Philippines or to go to live with H, Miss Ching replied that she could not comment at this stage, and that more investigation would have to be carried out in relation to the circumstances in the Philippines and whether W would have any support in caring for Z. 

31. Miss Ching was also cross examined as to an incident which took place at the interview she had with W on 7 March 2008, when Z was climbing onto to her mother, wanting to be breastfed, and W shouted at Z and pushed her away.  Miss Ching said she then offered counselling to W on the undesirable impact of breastfeeding Z too often at her age and in places other than her home as well as shouting to stop Z’s behaviour, but Miss Ching said that was the only occasion that she saw W shouting at Z. 

32. Miss Ching has also said that she is concerned that PS already has to take care of 3 young boys.  There have been allegations from W that SP had hit her sons, or left her youngest son at home.  Miss Ching said that it would be difficult for PS to look after one more young child, particularly when PS had never taken care of Z before.  It was also Miss Ching’s view that it would be difficult for Z to live with another family. 

33. H is of the view that SP will have no problem in caring for 4 children, and says this is part of their Pakistani culture, as his own mother has cared and raised 7 children. 

34. H’s main reason for objecting W to have Z’s custody is that he believes that Z is better staying and growing up in Hong Kong, and further that he is in a better position to be Z’s custodian parent due to his being a Hong Kong citizen, his stable job and home, as well as an intact family that can provide Muslim upbringing and education to Z. 

35. H has further made allegations about W and her background.  H suspects that W had a close relationship with another man even before their separation, and provided a photograph of W being taken in a hotel room.  W has denied this, and I find that there is no sufficient evidence that W was /is having any intimate relationship with another man.  H has also alleged that W’s sister has a child by a man who is not her husband, and W’s father also has a child by a woman who is not his wife, and he does not like Z to be brought up in that environment.  H has queried as to what future Z has if she were to follow her mother. 

36. H has also complained that W has not looked after Z well by constantly giving her ‘junk food’ at KFC or the MacDonald’s, as a result of which Z has a skin problem, whereas he will be able to feed Z with fresh food.

37. SP has attended trial to give oral evidence and be cross-examined.  She fully supports H in having Z’s custody, and says that she will be able to look after four young children.  According to her, H has breakfast at home, and leaves for work sometimes at about 10 am, sometimes about 11 am, and returns home at about 10 pm.  H works 7 days a week, but about 2 or 3 times a month, he takes a holiday on Sundays to take the children out for an outing.  She denies having beaten any of her sons, saying only sometime “maybe a soft slap on legs”.  She says as she has no daughter, she will treat Z as her own daughter.  She further believes that as religious knowledge and teachings are very important in their Muslim culture and religion, she will be able to teach Z, and will love her “more than her own daughter”. 

38. SP is about 37 years old, and she was educated to class 5 in primary school.  She speaks Punjabi, but says she has friends in Hong Kong and has no problem shopping in the markets.  She admitted, however, that she could not communicate with the teachers of her sons in Hong Kong.  Although SP has not received much education, I am impressed by her, as she appears to be a genuine supporting wife and mother.  I believe that she will use her best endeavours to look after Z and to bring Z up, if H were to be granted custody.

39. I do not doubt that H loves Z, but he obviously has to rely on PS to help him look after Z, who is only just over 3 years old.  I also appreciate that if Z were to live with H and SP, Z will have 3 half siblings of similar ages to grow up with, and she will have play mates.  Even though Z seems to have got on well with SP and her 3 half brothers, in my view Z cannot be as attached to them as she is to her own mother who has been her full time primary carer since birth.

40. It is generally regarded that it is in the best interests of a child to be cared for by a natural parent.  The role of the mother is considered to be particularly important in the case of very small children, particularly when she is able to fulfill the role of a full time parent.  This is so even if there are very devoted and caring members of the extended family who are also able to fulfil that role (see L v C CACV 333 of 2007, Aslam v Ali CACV 144 of 2003, MG v LHH, FCMP 137 of 2007)

41. H says Z is better staying and growing up in Hong Kong.  Any custody order in relation to a child in Hong Kong will include a restriction that the child is not to be removed from the jurisdiction unless with leave of court, or with consent of both parents.  It is W’s present intention to continue to live in Hong Kong.  In the event that her application fails and she has to leave Hong Kong with Z, she will need to take out an application for Z’ permanent removal.  Thus, until such event occurs, W and Z are living in Hong Kong. 

42. Having regard to all the circumstances and the information contained in the two social investigations reports, and having regard to Z’s young age, I am of the view that it is in Z’s best interests to remain in the care of her mother.  H will be granted reasonable access.

H’S INCOME

43. One of the parties’ main disputes is H’s income and whether he is still the sole proprietor of the business formerly known as BJDM, and now the business known as BJM. 

44. As I have pointed out previously in my Judgment of 1 September 2008 (“Interim Judgment”), there are two issues here:

(i)    whether H is still the sole proprietor of the business BJM or  he is now only an employee

(ii)  in either scenario, what is his income

45. H’s case is that he was employed by BJM earning HK$8,000 per month since April 2008, but he resigned on 15 May 2008 as a protest to the low salary.  On 1 June 2008, he was re-employed by the new proprietor at BJM at a monthly salary of HK$15,000 per month, although he has said that he did not get paid for November and December 2008. 

46. In his 2^nd Affirmation, H had said he received consideration of HK$60,000 cash from the new proprietor at BJM.  In my Interim Judgment, I had mentioned that it was not clear how H arrived at the consideration of HK$60,000 for the sale of the business BJDM.  During the trial, H clarified this and said that when he ceased his business BJDM, he sold the furniture of BJDM for HK$60,000 to the new proprietor, a Mr. M, who started a new business, namely BJM.  According to H, Mr. M was a customer of BJDM.  H’s case is that he decided to cease the business BJDM due to dwindling business.

47. Prior to BJDM, the registered business address of BJDM’s predecessor SMC was that of a flat in Minden Row (“Minden Row Premises”) as from 4 July 2005 onwards.  When SMC changed its name to BJDM, the business address was changed to a shop space in Ck Mansion, and later in December 2007 the business was expanded to 2 shop spaces.  Even though H said the 2 shop spaces were originally part of one space, it is clear that there was an expansion in December 2007.

48. Although BJDM carried on business at the shop space at Ck Mansion, the cooking of the food continued to be carried out at the Minden Row Premises.  Minden Row Premises were also the premises where H and W had lived during their marriage.  H and W occupied one bedroom there.  H surrendered the tenancy of Minden Row Premises on 31 May 2008 (R-7), which at the time of the surrender still had an unexpired tenancy term until 28 February 2009.  H further admitted that at one stage, he was also subletting the Minden Row Premises to various workers who would sleep in the sitting room, while he and W slept in the bedroom.  H would charge such worker HK$1,000 per person per month.  On average, he would have 2 or 3 workers staying there, and thus on average, he was receiving an additional income of HK$2,000 to HK$3,000 per month. 

49. It appears that one month after his marriage with W, apart from the Minden Row Premises, H also rented another flat at Temple Street (“Temple Street Flat”).  His explanation during the trial was that sometimes he was so depressed during his marriage with W that he needed some space, and also he was expecting his mother and family to come to Hong Kong, and he did not want them to stay with W at Minden Row Premises.  H said his mother later did come and stayed 8 or 10 months at Temple Street Flat.  The tenancy of the Temple Street Flat was last renewed on 4 September 2007 for two years, and this is where H and SP and their 3 sons are now living.  The monthly rent of the Temple Street Flat is HK$4,700 per month.

50. When W’s Counsel, Ms Tsui, asked H as to where the cooking of the new business BJM is now being carried out, H refused to disclose, as he said if W knew of the address, she would make a report to the police, complaining that he was taking drugs, as W had previously brought a police to the Temple Street Flat to disturb his family.  H, however, admitted that there are other people living in the new address.  I would have thought H’s legal advisors should have advised him to produce a copy of the tenancy agreement of the place where cooking is now being done, with the address deleted.  This would at least show who has signed the lease, whether H, or the new owner of BJM. 

51. H had said that he ceased the business of BJDM as business was not good.  In the Interim Judgment, I had pointed out that from the then available bank statements, it did not appear that BJDM was facing any financial difficulties and that it was only after W started proceedings that there was reduced activity in the bank account.  I further pointed out that as at 31 March 2008, there was still a net profit shown in the Trading and Profit and Loss Accounts.  During the trial, under cross-examination, H suddenly said the actual reason that he ceased the business of BJDM and sold the furniture for HK$60,000 was because his wife SP was pregnant and he needed money for the hospital, and he was told by the hospital that he had to deposit HK$40,000, and so although his business was “OK”, but not good, he did have enough money to support daily living, but not enough to come up with HK$40,000. 

52. Although H said BJDM ceased business on 25 March 2008, he did not inform the investigating social welfare officer.  Furthermore, H only disclosed in his 2^nd Affirmation that he had received HK$60,000 cash from the new proprietor of BJDM at the time of cessation.  As I have pointed out in the Interim Judgment, this was never disclosed by him during the hearing in May nor at the hearing in June last year. 

53. H has now produced bank statements of the following bank accounts:

(i)    a savings account at Wing Lung Bank which he opened for Z, and held by him for Z (“Z’s Savings Account”) which was opened on 2 May 2006 and closed on 27 November 2008, and a copy of the passbook was produced by H at the trial (R-1)

(ii)    a current account at Wing Lung Bank (“Personal Current Account”)

(iii)   a savings account at Wing Lung Bank (“Personal Savings Account”),

(iv)   a current account in the name of BJDM (“BJDM’s Current Account”), which was opened on 18 July 2007 and closed on 10 April 2008 , and statements of which were produced by H at the trial (R-2)

(v)   a savings account in the name of BJDM (“BJDM’s Savings Account”), which was opened on 18 July 2007 and closed on 10 April 2008, and statements of which were produced by H at the trail (R-3)

54. W had previously alleged that H had accounts at the Bank of China.  H eventually produced a letter dated 7 April 2009 from the bank (R-10) certifying that he had 3 accounts there, two of his accounts were closed in 2003 and 2004 respectively, and for the third one, there were no transaction records between January 2007 and 27 March 2009 and had a zero balance at the closing date on 31 August 2008.  I accept H’s evidence that he no longer has any bank accounts at Bank of China. 

55. It was only during the trial that H produced the passbook of Z’ Account (R-1).  He said after he opened the account for Z, he handed the passbook to W, and after she left home, he got it back.  He said he did not produce it earlier as he was not able to locate it.  In this account, on 21 August 2007, there were 2 deposits, one of HK$31,000, and the other one of HK$15,000, and on 2 October 2007, a sum of HK$45,000 was transferred out.  H said the 2 sums were some one else’s money, and he was given the money for safe keeping, and he put it into Z’ Account.  He then said he could not recall to which account was the sum of HK$45,000 transferred.  There was another cash deposit of HK$15,000 into this account on 3 January 2007, but H could not explain the source or the destination of the transfer out of the said sum on 16 January 2008.  Anyway, the account was closed on 27 November 2008, and all sums therein had been withdrawn by H.  I find H’s evidence as to the above deposits and transfers unsatisfactory and believe that he was all along using the account for his own purposes rather than saving for Z.

56. During the trial, H said that his Personal Savings Account was opened for business purposes, and that he opened his Personal Current Account at the same time, and he would transfer money from his Personal Savings Account to his Personal Current Account for issue of cheques.  During the trial, H has further said that his Personal Current Account was closed in April 2008, but the statements produced by him indicated that there were still transactions until 25 July 2008.  Anyway, it is H’s case that his Personal Current Account is now closed. 

57. When H was cross-examined that as he used his Personal Current Account in writing cheques in connection with his business, why he needed to open an account in name of BJDM.  H’s response was that after W ran away from home, and told him he would see him in court, he decided to open a separate account for BJDM to keep everything separate.  He then produced statements of these two accounts of BJDM (R-2 and R-3) which showed that both the BJDM’s Current Account and the BJDM’s Savings Account were opened on 18 July 2007.  He agreed that from then onwards, BJDM’s accounts would show all the income of the business.  H did not disclose BJDM’s Savings Account until the trial.  His explanation was that he treated the savings account as part of the same account of the current account, and he said he had given all photocopies of statements to solicitors.  Both BJDM’s accounts were closed on 10 April 2008.

58. It is H’ case that previously receipts from BJDM were deposited into his Personal Savings Account.  There were regular monthly payments of HK$1,000 each to AIA, which H says were his MPF payments.  Apart from the “AUTO CR” payments, H says the deposits in his Personal Savings Account after April 2008 were his salaries from BJM

59. In H’s Personal Current Account, there were large amounts of deposits and most deposits were by cash or ATM DP Memo, which were transfers.  The withdrawals were mostly by cheques or cash/EPS/PPS payments.  There were many transactions until January 2008.  W’s Originating Summons was issued on 21 December 2007, and thereafter, there have been very few activity in this account.  H’s case is that he had not kept the business monies/dealings separate from his personal monies, and that the deposits and withdrawals in his Personal Current Account were business related.  Looking at the nature and number of transactions in his Personal Savings Account and his Personal Current Account, I accept that H was intermingling his business monies with personal monies, and thus it is difficult to distinguish which transactions were business related and which were not.  However, on H’s own evidence, the cash and cheque deposits in his 2 Personal Accounts were from his business.

60. According to the Trading and Profit and Loss Account for BJDM provided by H for the year ended 31 March 2008, the sales for the period were HK$1,707,985.80 and purchases were HK$906,374.  The net profit for the year was HK$128,580.22, i.e. HK$10,715 per month.  Rent, rates and management fees for the 2 shops at CK Mansion were about HK$30,560 per month, and staff salary was HK$12,500 per month.  During the trial, H admitted that BJDM used to employ 5 staff, and he paid HK$4,000 per month for each of about 3 of the workers, and the others were part time workers.  H claimed he roughly earned about “HK$8,000 or HK$10,000 or HK$ 12,000 per month” from BJDM.  At the trial, he told this Court that his daily receipts from the business would be an average of HK$3,500 per day, namely about HK$105,000 a month, sometimes more or sometimes less.  H said he would only deposit the cash receipts into his Personal Savings Account.

61. Under cross-examination, H agreed that his bank statements showed that business in January and February 2008 were very good as sometimes there would be business fairs or maybe during festivals, there would be more customers.  When asked why he decided to close the business of BJDM, H said one had to look at the income for the whole year.  From the Summary submitted by Ms Tsui, attached as Appendix I in her Closing Submissions, there is, however, no indication that the average receipts for 2007 were notably less than those in January or February 2008.  Further in December 2007, the business was very good, and H even expanded the shop.  I have already said in the Interim Judgment that there was no evidence to show that the business was dwindling or running at a loss and that there were inconsistencies in his case regarding his income and financial position.  H’s bank accounts did not indicate any financial difficulties.  He was able to pay W HK$10,000 in February for W’s move and purchase of furniture.  I do not find the reasons H gave for suddenly ceasing the business of BJDM on 25 March 2008 convincing. 

62. H said he needed money for the hospitalisation expenses for SP to give birth, but there was no reason why he could not arrange for a loan from his friends at that time, as pointed out by Ms Tsui in her Closing Submissions, he was able to do subsequently.

63. H has said the daily intake of BJM now is only about HK$2,000.  There is no supporting evidence for what he says.  He has not arranged for the alleged new owner to file any affirmation or attend the trial to give evidence on his behalf.  H has admitted that he is still the one who does the cooking, and manages the new business.  I am in no doubt he is still in charge of the business BJM, even though his name may not appear on the new business registration record of BJM.

64. In his 2^nd Form E filed in March this year, H said he only had about HK$87 in his Personal Savings Account, which is the only account he now has.  Apart from his MPF, he has no other assets.  He claims he has liabilities of about HK$221,000.  H did produce acknowledgments / confirmation of these outstanding loans, but none of his creditors were called.  The arrangements between him and his friends were vague and loose and there was no record produced as some of these loans were not a one off payment.  Apart from a sum of US$10,000 which he said was by cheque, the rest were all cash payments.  No interests were payable, and there did not appear to be any repayment dated.  H said he hoped that one day he would repay slowly, as he always hopes for the best.  I agree that the so called loan agreements or confirmations produced by H were self-serving.  It is W’s case that these were not genuine loans.  It is clear that even on H’s own evidence, there is no pressure of repayment, and I do not believe that they were genuine loans.

65. According to H’s 1^st Form E, filed on 19 May 2008, his monthly income was only HK$8,000, but he claimed his total monthly expenses were about HK$22,360.  According to his 2^nd Form E, his monthly expenses are now HK$25,480 per month, whereas his income is only HK$15,000. 

66. The rent of the Temple Street Flat is HK$4,700 per month, and he used to pay this by cheque from his Personal Current Account until June 2008, then thereafter apart from one payment on 17 December 2008 from his Personal Savings Account, it is not clear how he has been paying his rent.  Previously, when he was maintaining the Minden Row Premises at a monthly rental of HK$7,560, the rent for both places at one stage would be a total of HK$12,260 per month. 

67. In July 2007, SP and her 1^st and 3^rd son to come to Hong Kong.  W’s side served a subpoena on the Immigration Department, and a Mr. Lau appeared on behalf of Immigration Department during the trial bringing along the file in relation to H’s sponsorship for SP’s application for a visa to stay in Hong Kong, and Mr. Lau produced copies of H’s Savings Account for the period from 18 July 2007 until 2 October 2007. 

68. As mentioned earlier, SP did attend trial to testify on behalf of H.  She said that although H was the “boss” of BJDM before, now he no longer is. 

69. As I have said earlier, I do not find H’s reasons to suddenly cease the business of BJDM on 25 March 2008 convincing. 

70. Appendix I, prepared by Ms Tsui, is a summary of all the cash and cheque deposits in H’s all 4 accounts (A-3), excluding inward transfers and interests.  For the fiscal year from April 2007 to March 2008, all the deposits added up to HK$1,919,307.  As Ms Tsui has pointed out, if all these deposits represent daily cash receipts, then the sum is larger than the reported sales of HK$1,707,985 in the Trading and Profit and Loss Account.  For the year ended 31 March 2008 (p. 105-85) There would be a difference of HK$211,322, or an average of HK$17,610 per month. 

71. I accept that Appendix I shows only the total gross receipts.  It is H’s case that the Trading and Profit and Loss Account for the year ended 31 March 2008 (105-85) shows that the purchases for that year were HK$875,675 and soft drinks cost another HK$30,698.20, and the net profit was only HK$128,580.22, or about HK$11,000 per month.  These accounts were prepared by H’s friend, who is not an accountant, and these were produced by H at end of July 2008, in the midst of W’s application for interim maintenance.  No supporting documents had been produced to support the figures in these accounts.  The net profit figure of HK$128,580.22 was also different from the figure of assessable profit of HK$130,963 on H’s Profits Tax Assessment for 2007/2008 (p.105 (263)).  Although the difference is small, the basis for such figures is not clear.   Anyway, as according to H, the total deposits in Appendix I were receipts from BJDM, then there would be an understating of the gross receipts in the Trading and Profit and Loss Account.

72. It is H’s case that he did not receive any salary from his employer for two months in November and December 2008, and that he has arranged to go and see the Labour Department over this.  However, on 12 December 2008 there was a cash sum of HK$30,000 credited in his Personal Savings Account. 

73. In his latest Form E, H’s monthly expenses were HK$18,480 per month for him, SP, and his 3 sons, exclusive of the monthly sum of HK$7,000 under the 3^rd Interim Order.  I have found that his loans were not genuine loans.  Thus H’s income would appear to be HK$20,000 to HK$25,000 per month.  To summarise, I am of the view that H’s income is more than HK$15,000 per month, and in any event, I am of the view that he has the ability to pay the amounts ordered. 

W’S AND Z’S REASONABLE NEEDS

74. According to the W’s Form E filed in December 2007, the total monthly expenses for her and Z were then about HK$4,840, and this was when she and Z were staying in a refuge centre.  After they moved to the cubicle, the “General “expenses for her and Z under paragraph 4.1 of the Form E increased from HK$1,500 per month to about HK$4,550 per month, including HK$2,500 per month for rent and HK$250 for utilities, HK$1,500 for food and HK$300 for household expenses.  At that time, W’s “Personal” expenses under paragraph 4.2 were about HK$2,050 per month.

75. W said in her 2^nd affirmation filed about a year ago, she was going to enrol Z in a nursery in June 2008, and she had claimed additional expenses for the Child of HK$1,980, plus HK$840 per month for other expenses, including HK$240 per month for diapers.  As set out in paragraph 26 of my Interim Judgment, excluding Z’s share of the General Expenses in paragraph 4.1, under paragraph 4.3, Z’s direct monthly expenses would be about HK$2,359, i.e. HK$1,719 (school related expenses) plus another HK$640, as set out by W for entertainments / presents, holidays, clothes/shoes etc, excluding the diapers.  At that time, W was seeking a total of HK$7,000 per month as interim maintenance.

76. H’s case is that a total sum of HK$2,500 per month would be reasonable, namely HK$1,000 per month for W and HK$1,500 per month for Z, if W were to have Z’s custody. 

77. H’s Counsel, Mr. Chong, challenged mainly W’s and Z’s “Food” and “Household” expenses under paragraph 4.1, and W’s expenses for “Meals out of Home” under paragraph 4.2.

78. Mr. Chong has not really cross-examed W on the other expenses of W and Z, but merely compares W’s expenses to income of H.  He suggests that all 7 members of the family, namely H, his Pakistani wife SP, his 3 sons, W and Z all share equally the monthly income of H, net of rent, which is only HK$10,300, and that each of H’s family of 7 should be entitled to HK$1,471 each.  Further, Mr Chong pointed out that during the parties’ marriage, from September 2005 until 4 June 2007, when W left home with Z, H was only paying her HK$1,000 per month as pocket money.  However, when W and Z were residing with H, they did not need to pay for rent, or utilities, or household expenses, or food.  In fact, most of H’s food expenses were probably covered by BDJM.

79. In W’s updated Form E filed on 4 February 2009, she sought a total sum of HK$9,524 per month including the anticipated schooling expenses for Z commencing coming September, and Ms Tsui in her Closing Submissions sought an amount of not less than HK$8,500 per month.  In W’s updated Form E, she gave an amount of HK$7,150 per month for the total of her present expenses for her and Z. 

80. W produced an invoice from her landlord regarding rent and utilities of about HK$2,786 per month (p. 105 (221)), but the electricity bill was for 2 months, and thus it appears that the average amount for rent and utilities would be about HK$2,660 per month.  So far as the “Household” expenses are concerned, W said this was for tissues, cleaning, detergent, washing powder, and a broom.  Buying a broom is not a monthly recurring item.  W and Z are living in a very small cubicle of 300 sq ft, and only had a small kitchen.  I find that the monthly sum of HK$300 is on the high side.

81. W was challenged by H’s Counsel, Mr. Chong, as to her food expenses being HK$ 1,500 per month.  She said it was HK$25 for each, or HK$50 for both every day, and assuming 30 days, this would come to HK$1,500 a month.  W claimed another HK$500 for meals outside home, saying that she could not cook all the time.  During re-examination, she clarified that HK$1,500 was for milk and food for meals at home, including buying fresh vegetables and fish at the wet market, and the HK$500 was for having meals outside home.  As Z is only just over 3 years of age, in my view, a reasonable amount for food at home would be HK$1,200 per month.

82. Under paragraph 4.1 “General” Expenses, I find a reasonable sum for the total amount, inclusive of rent, would be about HK$4,000 per month.  Ms Tsui has suggested this amount be apportioned between W and Z equally, and this was not challenged by Mr. Chong.

83. According to W, she and Z would eat outside at least about twice a month, when they go to the Immigration Department, twice a month to see the Social Welfare Department, and about 3 or 4 times a month to meet her solicitors, generally about 7 or 8 times, and she claims an amount of HK$500 per month for “Meals out of Home” under paragraph 4.2 “Personal” expenses.  I find that this is on the high side.  Now that the main trial is over, the frequency of her visits to her solicitors should be reduced, and the frequency of her meals outside home could be reduced, and so would her transport expenses.  I also agree with H that home cooking would be healthier than MacDonald hamburgers.  W herself has agreed that H used to pay her HK$1,000 per month for her personal expenses.  In total, I find a total sum of about HK$1,200 per month reasonable to cover W’s “Personal” Expenses under paragraph 4.2.  Thus, including her share of “General” expenses, I find a sum of HK$3,200 per month will cover W’s reasonable needs.

84. So far as Z is concerned, W says Z’s direct expenses under paragraph 4.3 amount to about HK$600 per month, which I accept.  Thus, with her share of “General” expenses, I find a sum of HK$2,600 per month will cover Z’s reasonable needs for the time being.  W has further said that by September 2009, Z’s monthly expenses will be increased by about HK$2,440 per month under paragraph 4.4, including HK$1,695 per month for Z’s kindergarten fees when Z starts to attend K1. 

85. When Z starts schooling in September this year, she will be entitled to benefits under the education voucher scheme in Hong Kong, of HK$12,000 per year, or about HK$1,200 per month (10 months in a school year).  Ms Tsui submits that there is still a shortfall of HK$400 per month, so far as Z’s tuition fees is concerned.  Before Z starts school, her direct expenses are only HK$600 per month.  Upon commencement of school, I find Z’s additional expenses to be about HK$1,200 per month, after taking into account the education voucher system.  In my Interim Judgment, I found a total sum of HK$7,000 per month to be reasonable.  However, this sum took into account Z’s tuition expenses, but it now seems that Z has still not commenced any schooling, apart from attending a summer camp in August 2008, for which H had separately paid HK$320.  In the circumstances, I find that it would only be fair that the amounts in the 3^rd Interim Order to be adjusted. 

86. Having considered all the above circumstances, prior to Z’s commencement of kindergarten, W’s and Z’s reasonable needs will be covered by a sum of about HK$5,800 per month, and that when Z starts schooling, then H should pay an additional HK$1,200 per month.  Thus, the amount in the 3^rd Interim Order will be adjusted to HK$5,800 per month, being HK$3,200 per month for W and HK$2,600 per month for Z.

87. Under s.9 of the SMOO, it appears any interim order shall only operate for not more than 3 months from the date of the order.  For periodical payments for the maintenance and education for a child, under s. 12 of SMOO, such payments may begin with the date of the application, or any later date, and shall not extend beyond the age of 18, unless the child would be receiving instruction at an educational establishment or undergoing training for a trade, profession, or vocation, whether or not he is also, or will also be in gainful employment.  The Ordinance is, however, silent as to the duration for orders for periodical payments for a “married person”.  I am of the view that similar to the periodical payments for a child, the payment for a “married person” may begin with the date of the application, or any later date. Since SMOO only applies to a “married person”, I am of the view that the payments will cease if the Applicant is no longer a “married person.”.

ORDER

88. My order is thus:

(i)    Custody, care and control of the Child of the marriage be granted to the Applicant with reasonable access to the Respondent;

(ii)  Paragraph 1 of the Interim Order of 1 September 2008 be varied to : the Respondent shall pay a sum of HK$5,800 for the interim maintenance for the Applicant and the Child of the marriage, namely HK$3,200 for the Application, and HK$2,600 for the Child, commencing 1 September 2008 ,with credits for amounts paid;

(iii)    Upon expiration of the above Interim Order, as from 1 December 2008, the Respondent to continue to pay a sum of HK$3,200 per month for the maintenance for the Applicant during her marriage with the Respondent or during parties’ joint lives, whichever shall be the shorter;

(iv)   Upon expiration of the above Interim Order, as from 1 December 2008, the Respondent to continue to pay HK$2,600 per month for the maintenance of the Child, with credits for amounts paid.  The payments for the Child shall be payable until the Child reaches the age of 18, or completes full time education, whichever shall be the later. 

(v) As from 1 September 2009, upon the Child commencing schooling, the payments for the Child shall be increased from HK$2,600 per month to HK$3,800 per month.

(vi)   The above sums shall be payable on the 1^st day of each calendar month and shall be deposited by the Respondent into the Applicant’s account with HSBC account number 088-9-027033.

COSTS

89. The Applicant is clearly the successful party, even though she has not succeeded in being awarded the sum she is claiming.  I further find the Respondent’s piece meal disclosure throughout the proceedings entirely unsatisfactory.  Ms Tsui has referred to the inefficiency of the Respondent’s lawyers in her Closing Submissions.  I agree that it appears that the Respondent’s lawyers could have done more to assist him in preparing his case and to help him to obtain the necessary bank statements much earlier.  My only concern is the amount of costs which have been incurred in these proceedings, and that any order for costs may have a serious impact on the Respondent’s ability to continue to pay the amounts of maintenance as ordered above.  I therefore reserve costs and direct that :

(i)    The Applicant shall lodge her written submissions on costs, together with an estimate of her costs and a paginated bundle of all correspondence regarding proposals on settlement, whether without prejudice or not, within 14 days from today;

(ii)   The Respondent shall lodge his written submissions on costs within 14 days thereafter.