LUK MOK NGAN CHEUNG v. LUK HOI CHUEN

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JUDGMENT

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Penlington, J.A.:

1. This is the judgment of the Court

2. This is an appeal from a decision of His Honour Judge Chism in the District Court on the application of the petitioner ("the wife") for ancillary relief. In her petition she had sought an order for nominal maintenance, for a lump sum and for a property adjustment order in respect of the former matrimonial home which was Flat D, Block 8, 3rd Floor, Kornhill Garden, Quarry Bay ("the flat"), which was purchased in May 1987 under the Home Ownership Scheme. There was no dispute that the husband had only made a small contribution towards the purchase price of $287,000 and the bulk had. come from his brothers and his mother.

3. At the conclusion of the hearing an order was made that while there would be no order from maintenance the respondent ("the husband") must pay the wife a lump sum of $120,000 within three months from the date of the order. The judge made no order as to costs save that the parties' own costs be taxed in accordance with the Legal Aid Regulations. He did, however, take into account that the wife's costs would be some $20,000 and that the Director of Legal Aid would deduct that from the amount which had been awarded to her. Subsequently the husband applied for the trial judge to review his decision. However he came to the conclusion that he had not been in error in the award made and refused to amend.

4. Somewhat surprisingly, in view of the very sharp conflict as to fact involved in this matter, the only viva voce evidence called at the trial was that of Luk Sik Chuen, the younger brother of the husband, who had allowed his bank account to be used in the purchase of the flat and who had provided about $100,000 towards the purchase price. This evidence was limited to the question of whether the wife had deposited $37,000 into his bank account which he denied. He said that he had had no money transactions with the wife and had "no contact with her". This evidence was not believed by the trial judge. There was no application to cross-examine either the wife or the husband upon their affidavits although we are informed the wife was present in court throughout the hearing.

5. The trial judge, in very careful and detailed reasons for his decision, has considered the evidence that was before him including the bank account records of both the husband's brother and also those of the wife. He concluded that he was fully satisfied that the wife did contribute substantially to the purchase price of the matrimonial home, took into account that the wife had worked throughout the marriage, a period of some five years, and that the husband conceded that she had contributed to family expenses.  He said,

6. Miss Leong for the husband first of all argued that the judge's finding as to contribution was wrong and she pointed to various matters in the wife's evidence which appeared to be suspicious. She pointed out, for instance, that on the 28th January 1987 the wife withdrew $22,000 in three separate sums from her account, in cash. This was alleged to have been used for part payment of the flat but completion was not until May 1987. An occupation permit had not been issued at the time this money was withdrawn from the bank. There were several other points raised and analysed by Miss Leong in her meticulous and helpful written argument. These were matters on which the wife could have been cross-examined. She may well have had satisfactory explanations. There were similar apparent discrepancies in the husband's evidence and that of his family which also might have been explained. The trial judge has considered all these matters carefully as to the contribution made by the various members of the husband's family towards the flat and we do not consider that there is any reason for us to interfere with the conclusions that he came to that the wife had contributed some $79,000 towards the purchase and decoration of the flat.

7. It was a further ground of appeal that the wife had only claimed a lump sum representing the amount of her contribution, together with interest, whereas the award of $120,000 included an element representing in part the maintenance element of a ''clean break". Again we are satisfied that the small amount which was represented by that factor was not by any means unreasonable. As the trial judge found the wife had contributed to the marriage both financially and by giving her support for a period of some five years; she was not going to receive any maintenance from the husband in future and there was no reason why something should not have been included in the lump sum to reflect that fact. As the trial judge has said, the husband could not seem to accept that even though this was a short marriage of some five years and he would have financial responsibility for the only child, the wife had contributed to the marriage in a way that could not be represented in purely financial terms.

8. A further ground of appeal was that the judge had not treated the loans made by the husband's family in the same way as a loan on mortgage obtained from any commercial financial institution. If the loans were deducted from the amount for which the flat could now be sold the $120,000 was not available and the husband would be faced with an impossible task in finding that sum. Again we do not agree. There was no evidence that the husband's family were pressing him for payment and the fact remains that the flat is in his name and it is entirely unencumbered. We also accept that its real value is considerably more than the sum paid for it. We do not consider that the loans made by the husband's family should be considered in the way suggested by Miss Leong. The trial judge has taken the view, with which we agree, that when the husband got the chance to buy the flat it was, as Miss Eu, who appeared for the wife here, has said, somewhat like winning a prize in a lottery. His family provided most of the financial support to enable him to complete. We have no doubt, how ever, that the flat is, and will be, regarded as a family asset.

9. It was further argued that on the evidence the husband did not have $120,000 in cash and that he would not be able to raise that amount by a mortgage on the flat due to the amounts owing to his family. Again we do not agree. We have no doubt that if it was so required this amount could be raised by putting up the flat as security and we see no real difficulty in that course being adopted in order to pay the amount awarded to the wife if necessary. For the same reasons we do not consider that there would be any need for the husband to sell the flat immediately and that it is not appropriate for there to be an order, as was suggested, that sale should be deferred until the only child of the husband and wife reaches majority or financial independence.

10. In reaching a figure of $120,000 lump sum payment for the wife but in refusing to make any maintenance order for her even of a nominal amount the trial judge has carefully considered all the evidence that was before him as to the contribution made by the wife to the marriage including her financial contribution towards the purchase of the flat. He has also considered her liability for costs and has included an award for interest on her financial contribution at the modest rate of 8.5%. We do not think that the total award he thus arrived at of $120,000 is wrong.

11. The appeal against the judge's decision in this matter is therefore dismissed. Each party is legally aided and make an order nisi that their costs be taxed in accordance with the Legal Aid Regulations.

12. We would only add that we have been greatly assisted in this matter by the very diligent and helpful submissions made by counsel for both parties.