LY v. FF

FCMC 161/2017

[2018] HKFC 13

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 161 OF 2017

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J U D G M E N T
(Maintenance Pending Suit)

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Introduction

1.  The Petitioner is the Wife (“W”) and the Respondent is the Husband (“H”).

2.  In January 2017, W filed her petition for divorce relying on the fact of “Unreasonable Behaviour”.  Decree Nisi was granted on 25 July 2017.  Custody, care and control of the only child of the family, who is now 3 years old (“the Child”), was granted to W with reasonable access to H.

3.  On 7 June 2017, W applied by way of summons for maintenance pending suit for herself and interim maintenance for the Child.  W’s ground of application was contained in her Affirmation filed on the same date (TB:96-114).  H filed his Affirmation in Opposition on 7 July 2017 (TB:131-143).  W’s Affirmation in reply was filed on 4 August 2017 (TB: 144-156).

4.  However, without leave of the Court, H chose to file a further Affirmation on 22 August 2017 (TB:162-171) purportedly in further reply to W’s Affirmation.  At the hearing on 26 September 2017, leave was granted by consent for H to adduce such further Affirmation as evidence for this hearing with consequential leave for W to file one further Affirmation within 28 days.  W filed her further Affirmation on 24 October 2017 (TB:178-194).

5.  W is now seeking a monthly periodical payment of HK$50,000 in total as maintenance pending suit for herself and interim maintenance for the Child.  W had neither stated in her Summons as to the respective apportionment of the amount claimed nor as to when it should commence.

Parties’ Open Proposals

6.  On the day of trial, W split the amount for herself and the Child.  W proposed monthly sums of HK$10,000 for herself and HK$26,000 for the Child, thus making a total of HK$36,000 a month as her Open Proposals.  H proposed HK$18,000 a month only for the Child without any proposals for W.

7.  With the sharp difference between the proposals, the trial started.

8.  At the conclusion of this trial and upon parties’ agreement, this Court granted an interim interim maintenance order against H pending this Judgment at the same amount of his open proposals, namely, HK$18,000 a month apportioned at HK$8,472 for W and the Child, with the balance of HK$9,528 as school fees for the Child.

Background

9.  The parties married in 2013.  At trial, both H and W was aged 33.  There is one child born out of the marriage in June 2014 who is now aged 3 and is attending whole day nursery close to W’s living place which is a rented unit since February 2017.

10.  W has been a housewife throughout the marriage until present.  She is a lawyer in the PRC and undisputedly still maintained her practising certificate there although she has not been practising after marriage.  The reason given for maintaining the practising certificate was that she has to keep her PRC state benefits ‘open’ such as social security insurance.  It is only for this reason that she wants to continue to pay the practising certificate fees.

11.  In April 2017, she started working as an insurance agent in AIA International Limited in Hong Kong.  For the months between April and September 2017, she was only able to earn commissions of HK$9,010.70 and HK$916.07 out of 2 insurance policies, one of which was actually purchased by herself, the other one by her relative. In late September 2017, she decided to resign for the fact that she would not be able to work after January 2018 when her dependant visa would expire. Further, she did not see any future to continue working as an insurance agent since she had not been successful in sales of insurance policies to earn sufficient income to meet her financial needs.

12.  In order to be able to stay in Hong Kong to look after the Child, W enrolled herself in a post graduate diploma in business programme which enabled her to be able to obtain a study visa for the time being.  The programme would last for 1 year and by then she would like to continue a master degree programme which would last for another 1 to 2 years.  After graduation, she planned to stay in Hong Kong based on the Immigration Arrangement for Non-local Graduates visa (“IANG Visa”) (TB: 185).

13.  H works as a Vice President in the Corporate Banking Department of a local bank in Hong Kong.  In his Affirmation, H deposed to having an income of around HK$50,000 with bonus which fluctuated quite a lot from time to time.  H deposed his average monthly income around HK$60,000 provided that he could go back to work without being disturbed by W.  Reason being that since 1^st July 2017, H had to cease his work because W had attended his office causing all sorts of disturbances.  Undisputedly, at the time of this trial, H had resumed his work with the same employer and his remuneration package remain unchanged.

14.  There is a property in Taikoktsui, Kowloon, Hong Kong which used to be the former matrimonial home (“FMH”) registered under the sole name of H.  This property is “mortgage free” with a market value of around HK$11 million.  The monthly rental of an apartment similar to the FMH is around HK$28,500.  However, the FMH was left vacant until shortly before this trial when H moved back and stayed there.

W’s case

15.  W deposed in her Affirmation as to how she had been denied access to the FMH around January 2017.  Around early December 2016, H admitted to her of having an extra-marital affair and insisted for a divorce notwithstanding that by that time W was pregnant for about 3 months.  H insisted W to carry out abortion through a private hospital in Shenzhen, PRC.  W was unwilling to do so at the beginning but she gave in at the end.  W carried out the abortion as arranged by H in mid to late December 2016 in Shenzhen, PRC.

16.  Upon return to Hong Kong after the abortion around late December 2016/early January 2017, W found out all the locks to the FMH were changed by H.  Starting from then onwards, she was denied access to the FMH.  She was forced to stay in a hotel with the Child for a short period of time before she rented the apartment in Taikoktsui which she is now living with the Child at the rent of HK$19,300 a month.

17.  W in her supporting Affirmation (TB: 100-102) sets out her monthly expenses as follows :-

General Expenses	Amount
Rental	HK$ 19,300
Utilities (Electricity, gas, telephone, water and internet)	HK$    800
Food	HK$ 4,500
Household expenses	HK$ 1,200
Total:	HK$ 25,800
Personal Expenses
Meals out of home	HK$ 2,000
Transport	HK$ 1,000
Clothing/Shoes	HK$ 1,500
Personal grooming (including haircut and cosmetics)	HK$ 500
Holiday	HK$ 1,700
Medical/Dental	HK$ 100
Insurance premia	HK$ 300
Fees for social security and lawyer’s practising certificate	HK$ 1,660
Total:	HK$ 8,760
Child’s Expenses
School Fees	HK$ 6,141
School books and stationery	HK$ 100
Medical/Dental	HK$ 250
Entertainment/presents	HK$ 800
Holidays	HK$ 1,500
Clothing/Shoes	HK$ 1,000
Other Transport	HK$ 400
Child minding fees	HK$ 2,000
Uniform	HK$ 125
Total:	HK$ 12,316

18.  W in her 3^rd Affirmation repeated her monthly expenses with a revised school fee for the Child of HK$11,500 instead of HK$6,141 since the Child had started whole day nursery; an additional item of English tuition of HK$1,638 for the Child.  With these revision, the Child’s Expenses become HK$19,313 instead of HK$12,316.

H’s case

19.  H chose not to comment on W’s case as to the denial of access to the FMH claiming that it was irrelevant to the present application (TB: 132). H chose to explain why he himself did not stay in the FMH and also why the FMH was left vacant since their separation.

20.  H’s explanation was that since W had asserted that she would keep going to his place to hassle him, he decided to rent and live elsewhere after separation. The reason for not letting out the FMH was that he found out W had registered a Notice at the Land Registry, he was being told by the estate agent it would be very difficult to find a tenant willing to rent the FMH.

21.  H estimated the Child’s expenses to be approximately at HK$13,775 a month (excluding one third of the rent, namely the rent spent on the Child).   At paragraphs 15 to 17 of H’s 2^nd Affirmation (TB: 134-135), H said :-

“15. When it comes to details of the expense listed out in paragraphs 13, 14, 16 and 17, (1) household expenses of HK$1,200 shall be removed since the Petitioner and her mother are both living in the rented unit and there is no need to pay for household; (2) school fees at the amount of HK$11,500 already include HK750 as the meal fee and HK$1,280 as the book and entertainment fee for the Child. It is proposed that entertainment/present expenses for the Child shall be reduced to HK$200 per month and holiday expenses shall be reduced to HK$1,000 per month; (3) since the Child is living and attending school in Hong Kong within walking distance of the rented unit, no transportation expenses shall be incurred on regular basis; and (4) since uniform fee is paid on monthly basis, the Child’s clothes/shoes expenses shall be reduced to HK$600 per month.  

16. Particularly, the HK$2,000 paid to the Petitioner’s mother listed in paragraph 19 overlaps with the child-minding fees as listed in paragraph 16. I crave leave to refer to the Petitioner’s answer to my questionnaire of her Form E (“Her Answer”), paragraph 14 of Her Answer explains that the Child-minding fees of HK$2,000 is the fees paid to the Petitioner’s mother, including the expenses for meals out of home and transport. Therefore, the expense of HK$2,000 shall be removed from the list of total monthly expenses claimed by the Petitioner. Further, the Petitioner’s mother is taking care of the Child for the ease of the Petitioner to go to work on full time basis and it is up to the Petitioner to make such arrangement to maximize the value of her professional qualification and career development. Therefore, any expenses incurred by the Petitioner’s mother shall be considered as part of the living expenses of the Petitioner instead of the Child and be removed from the Child’s expense.  

17. In addition, I do not agree with the Petitioner’s proposal in paragraph 18 of her Affirmation. The Child is attending a whole-day class at a reputable school and the school fee is HK$11,500 per month. Resources spent on education of the Child is considered sufficient and adequate under current financial condition. Spending additional HK$1,638 per month for English class would make the education excessive and unaffordable for me. Also, I fail to see the necessity for a 3-year child to have 3 classes   per week after a whole-day education at school.”  

22.  Thus, H proposed the Child’s expenses are as follows :-

Item	Amount (HK$)
School fees (including meal fee and book and birthday party fee)	11,500
School books and stationery	100
Medical/Dental	250
Entertainment/presents	200
Holidays	1,000
Clothing/Shoes	600
Uniform	125
Total :	13,775

23.  H in his 3^rd Affirmation said further :-

“12. Paragraphs 13 to 18 of the Petitioner’s 3^rd Affirmation are denied. I crave leave to refer to the Paragraphs 14 to 18 and Paragraphs 24 to 26 of my 2^nd Affirmation as reply. Just to reiterate, my travelling expenses include the expense of my travel to Beijing at least once or twice per year to meet my parents alone without the Petitioner and the Child. Hence the Petitioner or the Child’s travel expenses are not comparable with mine.

13. Further, there has never been the so-called “common intention” that the Child should travel 2-3 trips per year after he attains the age of 3 or the Child should go to the international school. Frankly speaking, in my opinion, thoses choices in respect of the Child are all flexible as long as the Child can have a happy childhood and those choices shall be practical and conditional upon the actual income of the parents and the status of the family at that time. I do not see the necessity to take the Child for long distance trip at the age of 3. The Child will be too young to bear the tiredness and discomfort of the long flight trip and the possibility of getting sick during the trip is considerable. Meanwhile, attending international school is a reasonable choice for the Child before separation and may still be a feasible option if I can go back to work without the Petitioner’s hassling and intrusion and if the Petitioner performs her Responsibility by starting a serious full-time job as soon as possible.”

The statutory provisions and applicable legal principles

24.  Section 3 of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”) provides the Court the discretionary power to make interim orders requiring one party to the marriage to make to the other periodical payments for his or her maintenance as the court thinks reasonable

having considered all the circumstances of the case (see HJFG v. KCY [1012] 1 HKLRD 95).  The overriding principle is one of ‘reasonableness’.

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

“33. Jurisdiction to award maintenance pending suit to a spouse is statutory, being governed by the provisions of s.3 of the Matrimonial Proceedings and Property Ordinance, Cap.192. By that section the court is given a discretion to make an order requiring either party to the marriage to make to the other such periodical payments for his or her ‘maintenance’ as the court thinks ‘reasonable’, subject to the condition that the duration of any such order is limited to the period of what may broadly be called the divorce litigation.

34. By definition, therefore, maintenance pending suit is restricted to payments which constitute ‘maintenance’, which are reasonable in the circumstances and which will endure for no longer than it takes to determine the divorce litigation. ‘Maintenance’ is a broad concept.  I do not seek to define its exact meaning but it seems to me that it must be restricted to those payments necessary to meet the recurring costs of living at whatever standard of living is appropriate.  That being the case, no matter how great the wealth of the parties and how unevenly distributed that wealth may be at the time an application for interim maintenance is made, the court has no jurisdiction to make orders which for all practical purposes result in a form of pre-trial capital re-balancing.  In the present case, the judge recognised the long-established approach of looking to the “immediate and reasonable needs” of the wife and son.

35. As to the amount of maintenance pending suit that may be paid, the Ordinance provides only that it must be ‘reasonable’, that is having regard to the circumstances of the case, that it must be fair.

36. An important factor in determining fairness is a consideration of the marital standard of living.  In this regard, each case must be considered according to its own circumstances.  It is not simply to be assumed that great wealth equates to great extravagance.  Some married couples who enjoy great wealth spend with comparative modesty and with a discipline born of discretion, others enjoy consumption on a grand scale.

37. The principles that have emerged over time to guide judges in matters of interim maintenance have been fashioned in the main to ensure fairness.  This is well illustrated in the judgment of Nicholas Mostyn, QC, sitting then as a deputy High Court judge, in TL v. ML and Others (Ancillary Relief : Claim against Assets of Extended Family) [2006] 1 FLR 1263, at 1289, in which, having looked at earlier authorities, he derived the following principles that speak specifically to fairness or are based on the need to ensure it.

  For present purposes, it is sufficient to cite the relevant principles without citing the judge’s reference to the source of those principles :

a. The sole criterion to be applied in determining the application is ‘reasonableness’, which is synonymous with ‘fairness’.

b. 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.

c. 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.

d. 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.

26.  As for the matters which the court should consider in assessing an application for maintenance pending suit, Rayden and Jackson on Divorce and Family Matters, 18^th Edition, said as follows:

“16.17 …..There is no hard and fast rule, and no fixed proportion: each case depends on its own facts. It has been said that the approach to maintenance pending suit should be empirical, and that ‘in the ordinary sort of case the district judges who deal with these applications will have to take a broad view of means on the one hand and income on the other and come to a ‘rough and ready’ conclusion, or take a ‘broad brush’ approach. The overriding consideration is the actual needs of the parties pending suit. Although the provisions of s 25 of the MCA 1973 are expressed to arise only when the court is deciding whether to exercise its powers under s 23, 24 or 24A, the court may nonetheless have regard to the criteria listed in s 25 on an application for maintenance pending suit.

16.18 In practice, as oral evidence is rarely given, it will be unusual for the court on an application for maintenance pending suit to be in a position to make findings of fact on issues in dispute sufficient, for example, to deal with conduct or allegations of non disclosure. However, if it is demonstrated that the paying party has not performed his duty to make full and frank disclosure of his financial resources, then the court can take a broad and robust view of his means, and it does not have to accept and proceed on the basis of the assertions of the paying party as to his means and an inability to pay. The court can look at the reality of the situation and take into account voluntary funding from third parties. Any under provision or over provision in the order for maintenance pending suit can always be corrected when the account comes to be taken at the substantive hearing when there every opportunity to do fairness by set-off…….”

27.  In the often cited unreported case of C v. F (FCMC No.1701 of 2000), my learned brother Judge Bruno Chan at paragraph 14 of the Judgment said, which I respectfully agree :

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

28.  Thus, in all maintenance pending suit applications, the Court would not be expected to carry out any detailed and minute investigation of finances and expenditures since there would be no cross examination of the parties’ affirmation evidence to determine their credentials or to make any findings of fact on the information produced.  Nonetheless, the Court would adopt a so-called ‘broad brush’ approach on the information before it and determine whether it is ‘reasonable’ to grant such order and; if so, what the amount should be.

29.  With these principles in mind, I now consider W’s application.

30.  In addition, H’s Counsel invited me to also consider the case of LJ v. LWHH [2003] 3 HKC where it was held that earning capacity would also be considered in maintenance pending suit applications.

Discussion and Analysis

Marital Standard of Living

31.  During the marriage, the parties enjoyed a moderate standard of living.  H was the sole breadwinner supporting W and the Child.  W continued to be a housewife.

32.  The FMH is about 928 sq . ft with private clubhouse facilities.  There is no issue as to the market monthly rent of a similar unit was around HK$28,500 a month. 

33.  In my view, the standard of living of the parties during the marriage was slightly above average standard.

The Child’s Expenses

34.  Going through each of the Child’s expenses items, I allow the items claimed by W though with some adjustments on Holidays which I will assess at HK$1,000 and Clothing/Shoes assess at HK$600.  As to the transportation costs of HK$400 which H contended that the school is within walking distance from W’s living place, my view is that there is bound to be transportation costs on holidays even though the Child everyday goes to school and return home on foot.  Thus I allow this modest sum of HK$400 a month.  However, since it is W’s case that she has been looking after the Child full time as a housewife, I fail to see any reason why there will be a child minding fees of HK$2,000 which H should be held liable to pay.  Thus, the item of child minding fees would be removed.  H has not been able to show the additional English tuition class of HK$1,638 would not be in the best interests of the Child save and except for his alleged financial reasons.  There is also no evidence to show the Child could not cope with such tuition.  I will allow such item of expenses.

35.  Given the said adjustments, the Child’s reasonable amount of interim maintenance will be as follows :-

“Child’s Expenses
School Fees	HK$ 11,500
English tuition class	HK$ 1,638
School books and stationery	HK$ 100
Medical/Dental	HK$ 250
Entertainment/presents	HK$ 800
Holidays	HK$ 1,000
Clothing/Shoes	HK$ 600
Other Transport	HK$ 400
Child minding fees	HK$ --
Uniform	HK$ 125
Total:	HK$ 16,413”

[NB: Bold print denotes adjusted amount]

The General Expenses of W and the Child

36.  As to the General Expenses of HK$25,800, I am satisfied that the items listed therein and the amounts thereunder are necessities and reasonable in respect of which one third (1/3) should be attributable to the Child.  The remaining two thirds (2/3) would be attributable to W and her mother.  Thus, there will be an additional sum of HK$8,600 (that is, HK$25,800 x 1/3) added

to the Child’s expenses, making a total of HK$25,013 a month as the Child’s financial needs.

W’s Personal Expenses

37.  Now I will deal with W’s Personal Expenses. 

38.  There is not much contention by H as to W’s Personal Expenses save and except the main challenge against W was, being a qualified PRC lawyer and having a high earning capacity, that she did not utilise it by seeking employment either in Hong Kong or Mainland China.  Given the fact that W’s mother has been living with her and assisted her in taking care of the Child, there is no reason why W could not seek employment and have to seek financial support from him. 

39.  As for W’s expenses, I do not agree the fees for social security and keeping her PRC practising certificate to form part of the expenses which H should be liable for.  I will allow the items at the following adjusted amount :

“Personal Expenses
Meals out of home	HK$ 1,000
Transport	HK$ 1,000
Clothing/Shoes	HK$ 800
Personal grooming (including haircut and cosmetics)	HK$ 500
Holiday	HK$ 1,000
Medical/Dental	HK$ 100
Insurance premia	HK$ 300
Fees for social security and lawyer’s practising certificate	HK$ 0
Total:	HK$ 4,700”

[NB: Bold print denotes adjusted amount]

40.  Same as in the Child’s Expenses, there will be added one third (1/3) of the General Expenses of HK$8,600 (HK$25,800 x 1/3) to W’s Personal Expenses, thus making a total of HK$13,300 a month as W’s financial needs.

W’s Earning Capacity

41.  Submission was made by H’s Counsel as to W’s earning capacity should be considered (see LJ v. LWHH [2003] 3 HKC 455).  It was W who chose to resign from her post of insurance agent and then stay unemployed to seek financial assistance from him.

42.  W in her 3^rd Affirmation at paragraphs 8 to 12 (TB: 146-148) gave her reasons for not seeking employment.  First of all, she has been a housewife since mid 2012 and would not be easy for her to find full time employment after those idle years.  Secondly, as the sole custodian having care and control of the 3-year old child, she would like to take care of the child herself.  Her mother continued to stay with W was because of her abortion in December 2016 and tried to assist her during those difficult times with the failed marriage.  Moreover, her mother is already 62 years old with joint problem at her shoulder making her difficult to lift up her arms.  Her mother is not physically fit to take care of the Child on a full time basis.  Her mother also does not speak any Cantonese and does not know English at all making her unable to assist the Child academically.

43.  Furthermore, W was and at the time of trial is on a dependent visa with validity until January 2018.  Having enquired with the Immigration Department, she would not be able to renew such visa given the present state of affairs and there is no other way to apply other visa for her to stay in Hong Kong.  Eventually she enrolled on a post graduate diploma programme which enabled her to stay in Hong Kong to study and which also facilitated her to look after the Child.

44.  H in his 3^rd Affirmation in reply (TB: 162-171) contended that W, with her legal qualifications and experience as a PRC lawyer, would be able to find decent job with a considerable income had she wanted to do so.  Having said, she would then be able to stay in Hong Kong on a working visa notwithstanding expiry of the dependent visa.  H then talked about himself also on a working visa with expiry in June 2018. 

45.  In my view, the case of LJ v. LWHH (supra) does not assist H.  Although it was held that there was no rule that the parties’ earning capacity could never be considered in an application for maintenance pending suit, the Court by nature of the application being maintenance pending suit, would not consider parties’ long term prospects or earning capacity in circumstances which were less obvious.

46.  At paragraphs 25 and 26 of the Judgment where it was said :

“25. However, in our view, what a judge should not do, at this stage, is to consider earning capacity in circumstances which are less obvious. In the present case, the wife has not worked for the past six to seven years, since she started living with the husband. She is a new immigrant and speaks no English. Her former employment was as a saleslady on the Mainland and she has no skills. With the present state of unemployment in Hong Kong, it is by no means clear that she can easily find suitable employment. 26. Accordingly, whilst we do not agree with the submission by counsel for the wife that the court should never take the parties’ earning capacity into account in an application for maintenance pending suit, we have to say that in this case, the deputy judge fell into error in taking it into account when there was no evidence that a suitable job was available for the wife and she had refused it. Different considerations would of course apply at an application for ancillary relief.”

47.  Thus, was there any circumstances or evidence in the present case which are not less obvious so that W’s earning capacity should be considered by this Court ?

48.  In my view, W is somehow akin to the wife in the LJ v. LWHH case as W had also stayed out of employment in the legal field for some 5 to 6 years.  She does not have any experience working in Hong Kong as a foreign lawyer.  There is no evidence before me as to the employment market in Hong Kong on the supply and demand of PRC lawyers (without any experience working in Hong Kong).  Thus I am unable to take H’s words as the truth nor any judicial notice that gainful employment suitable to W was around the market and it is just because W who refused to seek such employment.

49.  Having said, I believe W’s earning capacity could not be taken on board for consideration simply relying upon H’s bare assertion that W was able to make full use of her earning capacity to generate income.

50.  I find against H on his contention that W’s earning capacity should be considered in the present application for maintenance pending suit.

H’s financial ability to pay

51.  Before going through H’s income and expenses, it is worth to mention that the “mortgage-free” FMH (where H is the sole legal owner) which W was denied access after the abortion around December 2016 was left

vacant and unoccupied since separation until shortly before this trial when H moved back and resided there.

52.  During the period of separation, H rented a service apartment for himself allegedly because he wanted to avoid W’s hassling him if he stays at the FMH. 

53.  H in his Form E reported a monthly basic salary of HK$50,600 along with an average bonus of HK$30,000, thus making a total income of around HK$80,600 a month.   Although he had stopped from working for a few months during which he received no income, it is undisputed that at the time of this trial he had already resumed employment with the same employer and on the same terms.  Moreover, he had moved out from the service apartment he rented and returned to reside in the “mortgage-free” FMH.

54.  H’s reported Monthly Expenses in his Form E are as follows :-

General Expenses	Amount
Rental	HK$ 22,100
Utilities (Electricity, gas, telephone, water and internet)	HK$   3,000
Management fees	HK$ 2,200
Food	HK$ 5,000
Household expenses	HK$ 2,000
Total:	HK$ 34,300
Personal Expenses
Meals out of home	HK$ 3,000
Transport	HK$ 1,500
Clothing/Shoes	HK$ 3,000
Personal grooming (including haircut and cosmetics)	HK$  300
Entertainment/Presents	HK$ 2,000
Holiday	HK$ 3,000
Medical/Dental	HK$ 1,500
Tax	HK$ 10,000
Contribution to parents	HK$ 10,000
Contribution to other dependants	HK$ 5,000
Others (Electrical appliances and house maintenance)	HK$ 3,000
Total:	HK$ 42,300
Child’s Expenses
School Fees	HK$ 9,100
Medical/Dental	HK$ 200
Extra curricular activities	HK$ 500
Clothing/Shoes	HK$ 500
Lunch and pocket money	HK$ 800
Uniform	HK$ 200
Total:	HK$ 11,300

55.  Moreover, H in his Form E disclosed a number of bank accounts with CITIC Bank and Wing Lung Bank adding together with savings around HK$578,435 and stocks valued around HK$205,000.   H had 4 credit cards but only one of which had an outstanding balance of HK$49,180.63. 

56.  Going through each of the items listed H’s Form E as to General Expenses and Personal Expenses and assessing on a broad brush basis, I believe there are items which H had exaggerated.  There are items of contribution to parents of HK$10,000 and contribution to dependants of HK$5,000, totalling HK$15,000 which no Court would agree to rank priority to support the Child.  Hence, I adjusted and set out below the amount which this Court considers as reasonable for H’s General and Personal Expenses.  Those adjusted amount will be annotated in bold print.

“General Expenses	Amount
Rental	HK$ 0
Utilities (Electricity, gas, telephone, water and internet)	HK$ 2,000
Management fees	HK$ 2,200
Food	HK$ 2,500
Household expenses	HK$ 1,000
Total:	HK$ 7,700
Personal Expenses
Meals out of home	HK$ 3,000
Transport	HK$ 1,500
Clothing/Shoes	HK$ 1,000
Personal grooming (including haircut and cosmetics)	HK$ 300
Entertainment/Presents	HK$ 1,000
Holiday	HK$ 1,000
Medical/Dental	HK$ 800
Tax	HK$ 10,000
Contribution to parents	HK$ 2,000
Contribution to other dependants	HK$ 1,000
Others (Electrical appliances and house maintenance)	HK$ 1,000
Total:	HK$ 22,600

57.  With the adjusted amounts, H’s General Expenses would be HK$7,700 and Personal Expenses would be HK$22,600, making a total of HK$30,300.  Thus, H would have a surplus of around HK$55,700 out of his average income of HK$86,000.  Given the fact that bonus are variable and not payable on a month to month basis, H would still have a surplus of HK$19,700 out of his basic salary income of HK$50,000 (HK$50,000 - HK$30,300 = HK$19,700) for paying interim maintenance to W and the Child.  Any deficit could have been made good from his bank savings without having to liquidate his investments.

58.  For these reasons, I consider and rule H has the ability to provide maintenance pending suit and interim maintenance for W and the Child.

How much should be paid by H towards W’s and the Child’s financial needs ?

59.  “Maintenance” has been held to be a broad concept and generously interpreted.   The ultimate answer to all applications for maintenance pending suit, in my view, is one of ‘reasonableness’ considered objectively by the Court having regard to all the circumstances of the case in question and then exercise its discretion on a ‘broad brush’ basis.  Should there be any over-provision or under-provision, it can always be adjusted at the ancillary relief trial proper at a later stage.

60.  Given careful consideration to all the above, I rule the financial needs of W and the Child at present are HK$13,300 and HK$25,013 respectively a month.  For the sake of convenience, I will round up the Child’s amount to HK$25,000 (instead of HK$25,013).  The total amount to be paid by H would then be HK$38,300.  I decided it should commence on 1 February 2018 whereupon the interim interim maintenance Order of HK$18,000 dated 8 December 2018 would cease. 

61.  As W is legally aided, her maintenance pending suit would be subject to Legal Aid First Charge. 

Costs

62.  Given this Court’s decision and parties’ Open Proposals, I decided that H should pay W’s costs of this application together with all costs reserved, to be taxed if not agreed.  I will so order accordingly.

63.  I also order that W’s own costs be taxed in accordance with Legal Aid Regulations.

64.  This is a costs order nisi which will become absolute if no application to vary it is made within 14 days from the date of this Judgment.

Orders and Directions

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

(a)  H (Respondent) shall pay to W (Petitioner) maintenance pending suit (subject to any Legal Aid First Charge) at the rate of HK$13,300 a month commencing 1 February 2018 and thereafter on or before the 1^st day of each and every succeeding month until further order;

(b)  H (Respondent) shall pay to W (Petitioner) interim maintenance for the Child of the family at the rate of HK$25,000 a month commencing 1 February 2018 and thereafter on or before the 1^st day of each and every succeeding month until further order;

(c)  H (Respondent) shall pay all costs of W’s (Petitioner’s) costs of this application as per the Summons dated 7 June 2017 including all costs reserved, to be taxed if not agreed;

(d)  W’s (Petitioner’s) own costs be taxed in accordance with Legal Aid Regulations.

66.  I also direct that a Penal Notice be endorsed.

67.  Personal Service of this Order on H (Respondent) be dispensed

   with and be effected upon H’s legal representatives.

68.  In the event H (Respondent) becomes unrepresented, there be

   personal service of this Order on H (Respondent).

69.  Last but not least, I wish to thank both parties’ legal representatives and Counsel for their assistance to this Court.