FMFT v. HKWE

CACV 230/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 230 OF 2000

(ON APPEAL FROM DISTRICT COURT
MATRIMONIAL CAUSES NO. 536 OF 1997)

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J U D G M E N T

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Woo JA (delivering the judgment of the Court):

Introduction

1. This is an appeal against two orders made by Deputy District Judge Jenkins on 6 December 1999 and 1 March 2000. By the 6 December 1999 Order, the Judge ordered that the petitioner ("the husband") should within 6 months from 6 December 1999 pay to the respondent ("the wife") a lump sum of $5 million for her maintenance. He also varied the amount of the periodic payment pending suit from $35,000 a month to $17,500 a month, effective as from 8 June 1999, and ordered such varied maintenance be continued until the payment by the husband of the lump sum of $5 million, at which time the periodic payment would cease.

2. By the Order of 1 March 2000, the Judge ordered the husband to pay one-quarter of the wife's costs, including the costs previously reserved and those of the hearing on 1 March 2000, to be taxed if not agreed.

3. Although the husband appeals both Orders, in respect of the Order of 6 December 1999 he only appeals against the part relating to the lump sum payment of $5 million, and does not appeal against the varied amount of the maintenance pending suit.

Facts

4. The husband was born in 1950 in Hong Kong. His mother, Ana Fung, is the second wife of Mr Henry Fok, a well-known businessman of immense wealth, although it seems that they have never gone through any formal marriage. The identity of the husband's father is unclear. It is not Henry Fok. However, Henry Fok allowed his name to be registered as the father of the husband at the Registry of Births.

5. Due to various reasons, including his not being the natural child of Henry Fok and his lack of success in working for Henry Fok's various companies and in his own business ventures, and in particular his being arrested and jailed for an arms deal in the States, the husband's relationship with Henry Fok has never been close and is now (because of Henry Fok's having been subpoenaed to give evidence in this case before the Judge) more distant than ever.

6. The Judge accepted that the husband had no real possibility of receiving any capital in the foreseeable future. He also found that there was no real possibility of any change in the husband's financial situation in the foreseeable future. Apart from the occasions when he worked for his own businesses and joint ventures with others, the husband has been under the employ of Henry Fok's companies for a salary, and at the time of the trial he received a sum of about $36,600 a month on average from one of those companies.

7. The husband had a son, A, by an earlier marriage, who was born in 1978. A has been well catered for by Henry Fok through Ana Fung, with all his education and travelling expenses paid in addition to a monthly sum of $8,000.

8. The couple married on 11 December 1985. Their matrimonial home was first at a flat in Amber Court, Kennedy Road, which had been bought by the wife's own family with the assistance of a mortgage. After a few months, the couple moved to live in an annex with its own entrance to an 11,000 square-foot house in grounds of 0.3 acre with a swimming pool and tennis court on Mount Kellett Road occupied by Ana Fung and the family of the husband's younger brother, rent and expense free. The Amber Court flat was sold, and the wife received $1,000,000 out of the proceeds after repayment of the mortgage loan. Out of that, the husband borrowed $500,000 which he injected into Fival Ltd, a joint venture he operated together with the wife's brother.

9. The husband has the use of a second-hand Jaguar car which was bought for him through hire purchase by Ana Fung. The expenses for the car have also been paid for him by his family.

10. The annex to the Mount Kellett Road property, of an area of 1,088 square feet, had been the matrimonial home for the couple and their child R, born in 1986 shortly after they moved in, until the wife left with R in 1994. The wife started then to lodge with her friend, Ester Chan who, according to the wife, provided a home for themselves and R in a 1,800 square-foot flat with a 2,200 square-foot terrace on Briar Avenue. It appears that the wife and R had been well taken care of by Ester Chan, and the Judge found that the wife had no immediate need to obtain the $13,500 monthly payment from National Investment Co Ltd, a company of Henry Fok. That payment had been made available to her every month between June 1992 and June 1999 at about the time when a subpoena to testify was served on Henry Fok, but she only went to collect the money about once every three months during the period.

11. The Judge found that the wife who used to be a television performer would not be able to take up any paid employment at her age of 44 years. He did not believe her evidence that she had no interest in the Briar Avenue flat, or that she did not have personal interest in the amounts of money in the account of Boomwing Development Ltd which purchased the flat that she said were held for her friends. She was a director of Boomwing Development. He also found that she had engaged in share dealing on a substantial scale, but her explanation was that all the transactions she did were on behalf of Ester Chan and other friends. He felt that she was not being entirely frank with the court.

12. The Judge summed up the parties' financial positions thus: "both the husband and wife enjoy a comfortable way of life despite having little visible income. The husband's expenses are largely covered by his family with the wife's being paid for by Ester."

13. He found that the husband was able to obtain loans, on a commercial basis or on a domestic basis, from Henry Fok's companies or relatives and did not have any trouble if he did not repay. He ordered that the husband pay a lump sum of $5,000,000 to the wife to effect a clean break, while he ordered him also to make a periodic payment of $5,000 a month for the maintenance of R. That sum of $5 million was adopted for enabling the wife to provide a lodging for herself and R, whose custody was granted to her, in case they could not live with Ester Chan any more. The lodging envisaged was more modest than the Briar Avenue flat or a flat that the wife had hoped for.

Grounds of appeal

14. Six grounds of appeal are raised regarding the order for the lump sum payment. They are set out below.

(1) In the light of his findings:

(a) that the evidence given by the husband as to his financial position was truthful;

(b) that the husband's income as found truly represents his earning capacity;

(c) that the husband has no worthwhile assets and there is no possibility of there being any change in his financial situation in the foreseeable future;

(d) that in the light of the evidence, it was quite impossible for the Judge to find that the husband in this case has any real possibility of receiving any capital in the foreseeable future;

(e) that there is simply no evidence that the husband has the means to satisfy the award as proposed by counsel for the wife;

(f) that there is no evidence that the husband's mother has any substantial assets;

(g) that the husband does not feel in a position to ask Henry Fok for anything as the husband's failures have incurred his dislike;

(h) that relations between the husband and Henry Fok are clearly not close and have been strained yet further by the debts incurred by the husband at the Eastern Chinese Emporium Co ("ECEC") and Fival, the husband's detention in the USA and the wife's subpoenas;

the Judge erred both in principle and in the exercise of his discretion in holding that it is "practicable" for the husband or that the husband's resources include an ability to obtain loans whether on a commercial basis or an informal family basis to the extent of meeting the Court's award of $5 million.

(2) The Judge erred in principle in that he failed properly or at all to consider or apply the "doctrine of effective control" in his apparent findings of the "resources available" to the husband.

(3) The Judge erred in principle in that he failed in his judgment properly or at all to consider or apply the recognised principle that a Court should not act in direct invasion of the rights of a third party nor put pressure on a third party in a way which may enhance the means of the husband.

(4) The Judge erred in the exercise of his discretion in finding on the evidence before the Court that either the husband has "the resources" to meet the Court's award or that the wife is entitled or has needs appropriate to require the same.

(5) In the light of his findings:

(a) that since her final departure from the matrimonial home the wife has enjoyed a very comfortable way of life;

(b) that Ester Chan and the wife together acquired the flat in Briar Avenue sometime in 1993;

(c) that the wife has complete freedom to draw on the bank accounts of Boomwing Development Ltd;

(d) that the Judge can see no reason for these resources not to continue in the foreseeable future;

(e) that the wife, as the Judge believed, has the option of remaining at Briar Avenue indefinitely;

the Judge erred in both principle and the exercise of his discretion in holding that the wife's "reasonable requirements" entitled her to funds with which to purchase a flat or a lump sum to generate income for herself in the sum of $5 million.

(6) The Judge erred in the exercise of his discretion and was "plainly wrong" in finding on the evidence before the Court and in all the circumstances that an appropriate lump sum award to the wife was $5 million.

15. Regarding the appeal against the order for costs, the only ground raised is that the Judge erred in principle and was plainly wrong in the exercise of his discretion in holding, despite clear evidence of the wife's misconduct in the litigation, material non-disclosure and false presentation of her evidence, that the husband should pay a quarter of the wife's costs of the various applications before the Court.

The needs of the wife

16. We start with the wife's "needs" which is attacked by Ground (5). A part of Ground (4) also challenges the needs of the wife on the basis of the evidence. Mr Pilbrow for the husband refers us to H v H (Financial Provision: Capital Allowance) [1993] 2 FLR 335 where on an appeal by a husband on ancillary relief, Thorpe J said @ 349F:

"The last word that I want to say relates to the district judge's apparent justification of his capital order by reference to the case of Re Besterman (above). That is relied upon by Mr Sternberg, who particularly draws attention to the passage at p 478 in the judgment of Oliver LJ. It must be borne in mind that the allocation of money between spouses in substantial cases is nowadays principally directed to the estimable objective of obtaining a clean break and furthermore, in pursuit of that end, the Duxbury approach (Duxbury v Duxbury [1987] 1 FLR 7) has become common place. So perhaps dicta in relation to cushions have less relevance today than once they did. It does not seem to me, in the age of Duxbury, that there is much principle for increasing a wife's capital award by reference to some specific cushion. Insofar as the district judge seems to have resorted to that justification in this case, I believe he fell into error."

17. Mr Pilbrow further suggests that the Judge having found that the wife had been enjoying a very comfortable way of life with Ester Chan and that there was no reason for the resources not to continue in the foreseeable future, the award was clearly to provide a Besterman cushion for the wife, which should not have been allowed. He further submits that as the award was based not on the husband's resources, but a "hope of a loan from the family", the court should scrutinise the wife's needs even more carefully.

18. In re Besterman, decd [1984] FLR 503, where the applicant, the widow of a very wealthy deceased, sought financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, Oliver LJ held that a lump sum exceeding the cost of an appropriate annuity should be awarded to the widow. However, the case has no general application, as the judge himself expressed at p 522H of the report that "it would be a pity if this case should be used as a basis for drawing general deductions of principle to be applied in other and probably quite different cases, whether of large or small estates."

19. At the trial below, counsel for the wife suggested a lump sum of $8,250,000 for the purchase of a flat, based on a 1,500 square feet property at $5,500 per square foot, and a further lump sum of $6,600,000 for living expenses for the wife and R calculated at $55,000 a month for 10 years. The Judge balanced these suggested figures with the ability of the husband to pay. He said:

"He (the husband) does not, I have found, have anything like this sum himself but as I have said earlier he has access to funds in the form of loans. Taking all relevant matters into account I propose to award the wife a lump sum of $5,000,000. I accept that it may take the husband sometime to raise this sum and since the wife does not seem to be in urgent need I order that this sum be paid within six months.

This lump sum will enable the wife to house herself and R although rather less modestly than she had hoped. That is if she needs to be rehoused. Her current living arrangements give the impression of being indefinite of (sic) not permanent. If, as I believe, she has the option of remaining at Briar Avenue indefinitely then she can utilise the lump sum award to provide an income."

20. The Judge did not provide a Besterman cushion for the wife in awarding the lump sum. Although he believed that she could choose to remain living with Ester Chan indefinitely, he rejected the argument of Mr Pilbrow, who also appeared for the husband before him, that there was any financial claim that could be raised by the wife against Ester Chan if their relationship broke down. The Judge took into account the reality in Hong Kong that

"an unmarried couple living together have no such claims by virtue of their cohabitation. There is furthermore of course, no legal obligation on Ester to continue providing for the wife, or for that matter R."

We do not see anything wrong in those observations of the Judge. One cannot foretell the vicissitudes of life and how long, if at all, the wife could continue to enjoy the generosity of Ester Chan towards her and R. The Judge cannot be criticised for making a lump sum award for the wife to effect a clean break between the parties in order cater for a lodging for her and R, in case she and R had to leave Briar Avenue, for one reason or another. The monthly payment of $5,000 he ordered the husband to pay for maintaining R obviously did not include any lodging expenses for the child, nor did the interim payment of $17,500 per month for the wife cover her lodging needs. If a lodging is not required in the foreseeable future, the $5 million will produce an income of about $300,000 a year, based on the prevailing normal interest rate of about 6% per annum that banks in Hong Kong pay on a large sum fixed deposit, meaning $25,000 a month, not too much over the $17,500 interim payment, which will cease upon the $5 million being paid. The interest income so assessed is much lower than the $50,000 (ie, $55,000 less $5,000 for R) a month for the wife's living expenses mentioned above. As Mr Pilbrow has not challenged the varied interim payment of $17,500 per month ordered by the Judge, we do not see how he can complain that the $5 million lump sum award does not represent a fair figure for the wife's needs. Ground (5) and the part of Ground (4) relating to the wife's needs therefore fail.

The husband's resources

21. All other grounds relate to the sufficiency of the husband's resources to meet the lump sum order.

22. Mr Pilbrow relies heavily on Howard v Howard [1945] P 1, where a husband was a beneficiary under a discretionary trust. Lord Greene MR said @ p 4:

"... seemingly the basis of the learned judge's decision was that he took the view that if he made an order of this kind the effect would be to bring pressure on the trustees to make to the husband an allowance out of the settlement income. If that was the object of this order, it was, in my opinion, entirely wrong in principle. Trustees who have a discretion are bound to exercise it, and if they do so nobody can interfere with it. In my opinion there is no jurisdiction in the Divorce Court to make an order which will leave the husband in a state of starvation (to use rather picturesque language) with a view to putting pressure on trustees to exercise their discretion in a way in which they would not have exercise it but for that pressure. ... On what ground should pressure be put upon the trustees to exercise their discretion in such a way as to pay to the husband, in order that he may pay maintenance to his wife, sums which in their discretion they would not otherwise have paid to him? It seems to me that such an order is as bad as an order on a man to pay a sum far in excess of what he could be ordered to pay out of his own means merely to put pressure on a rich relation to support him. ... What has to be looked at is the means of the husband, and by 'means' is meant what he is in fact getting or can fairly be assumed to be likely to get."

23. Although we accept Mr Pilbrow's submission that the judgment of Lord Greene in Howard remains good law, a body of authority has developed that "judicious encouragement" can be legitimately made by the court to induce family companies and discretionary trustees to help a maintaining spouse to satisfy financial arrangements made by the court: see B v B (Financial Provision) (1982) 3 FLR 298, and Thomas v Thomas [1995] 2 FLR 668. We will refer to a passage in the judgment of Waite LJ in Thomas because it has particular relevance to the present case; he said at p 669-670:

"The availability of unidentified resources may, for example, be inferred from a spouse's expenditure or style of living, or from his inability or unwillingness to allow the complexity of his affairs to be penetrated with the precision necessary to ascertain his actual wealth or the degree of liquidity of his assets. Another is that where a spouse enjoys access to wealth but no absolute entitlement to it (as in the case, for example of a beneficiary under a discretionary trust or someone who is dependent on the generosity of a relative), the court will not act in direct invasion of the rights of, or usurp the discretion exercisable by, a third party. Nor will it put upon a third party undue pressure to act in a way which will enhance the means of the maintaining spouse. This does not, however, mean that the court acts in total disregard of the potential availability of wealth from sources owned or administered by others. There will be occasions when it becomes permissible for a judge deliberately to frame his orders in a form which affords judicious encouragement to third parties to provide the maintaining spouse with the means to comply with the court's view of the justice of the case. There are bound to be instances where the boundary between improper pressure and judicious encouragement proves to be a fine one, and it will require attention to the particular circumstances of each case to see whether it has been crossed."

24. Mr Pilbrow tries to distinguish the above cases and the other cases that he has cited, namely, Brown v Brown [1989] 1 FLR 291 and T v T and Others (Joinder of Third Parties) [1996] 2 FLR 357, where "judicious encouragement" was applied by submitting that those cases related to the maintaining spouse having effective control of the trustees who would exercise their discretion in accordance with his or her direction. However, on close examination of all the four cases, one cannot find any judicial observation that the doctrine of "judicious encouragement" only applies to such a maintaining spouse. What Mr Pilbrow suggests flies in the face of the judgment of Waite LJ, cited above.

25. We are not satisfied that the Judge had erred in the manner as stated in Grounds (2) and (3). Indeed, all the grounds of appeal on law against the lump sum order are not substantiated.

The Judge's decision

26. While the factual matters mentioned in support of Ground (1) are mostly correct, the conclusion is not. The Judge's reasoning for ordering the lump sum can be found in the following part of his judgment:

"He (the husband) has no worthwhile assets, and I cannot see there being any real possibility of their (sic) being any change in his financial situation in the foreseeable future. But what he does have, and what I cannot overlook, is that he comes from an extremely wealthy family. This does not mean that I am to make any award that the wife seeks on the assumption that it will be underwritten by the family. But at the same time I cannot overlook this wealth. On two occasions, firstly the husband's losses at ECEC and Fival, and secondly on his arrest in USA he has been financially bailed out by his family. His resources include his ability to obtain loans whether on a commercial basis or on an informal family basis which may or may not need to be repaid.

The wife's earning capacity, in the sense of conventional paid employment, is limited. But she currently enjoys a comfortable way of life by virtue of Emma's (sic) resources. I fully accept though that the availability of these resources (as with the husband's) are not legally enforceable but at the same time I note that obligations within a family may be more likely than not to be honoured irrespective of the legal position. The wife's enjoyment of these resources has existed since she left Mount Kellett at the end of 1992 and I can see no reason for them not to continue in the foreseeable future."

27. After dealing with evidence on each of the factors mentioned in s 7(1) of the Matrimonial Proceedings and Property Ordinance, Cap 192, namely, their parties' needs, obligations and responsibilities, the standard of living before the breakdown of the marriage, their ages and duration of marriage, their physical and mental disabilities, their contributions, loss of benefit, and their conduct, the Judge awarded the lump sum to the wife. In particular, it should be mentioned that the Judge alluded to the wife's contribution of $500,000 being the loan to the husband for his investing into Fival.

28. The loans that the husband was able to raise are also mentioned in the judgment. They were connected with his employment history, and can be summarised as follows:

(a) At the end of 1979, the husband returned to Hong Kong from Canada after graduating from university. He worked in Yau Wing Shipbuilding Co, one of Henry Fok's companies, and was paid $2,000 a month.

(b) Within a year, he was transferred to ECEC and was paid $7,000 a month to start with.

(c) In 1981 he set up Fival Ltd with his wife's brother, into which he injected the $500,000 borrowed from his wife in 1985. Fival failed.

(d) He had obtained some goods from ECEC for sale by Fival and was indebted to ECEC for $1.6 million. The money was repaid ultimately by another company of Henry Fok, which also covered Fival's losses, some $2.4 million. These two sums amounted to $4,064,802.38. No steps had been taken to recover this sum.

(e) In 1988, the husband started to work for National Investment Co Ltd, another of Henry Fok's businesses, and was paid $27,000 a month, the same as he had received at ECEC at the time he left.

(f) He was involved in the arms deal in 1991 and 1992. The total bill for his legal problems came to some $2.7 million between 6 November 1991 and 31 May 1993, also paid by his family.

(g) In 1994, he set up two companies Reostar and Hall Advisers. These ventures were on a relatively modest scale, and both had ceased operation within two or three years.

(h) Thereafter towards the end of 1996 he went back to work at National Investment. His salary for the year 1998/9 according to the employer's return of remuneration filed with the Inland Revenue was $439,040 or $31,360 a month with a two-month year-end bonus. $15,000 was deducted from his salary each month, for repaying a loan of $180,000 from the company borrowed in February 1999 to enable him to pay the maintenance pending suit for the wife.

(i) He had also borrowed sums totalling $120,000 from what he described as "family friends in Macau" to help him meet the payments due to the wife. These loans together with interest at 15% per annum were repayable in March 2000.

(j) He also borrowed $35,000 from his own brother for the same purpose.

29. The Judge found that the husband's salary was not the sole benefit he enjoyed. There was the $8,000 a month paid to A. The husband lived rent-free on Mount Kellett. He was not required to make any contribution to the running expenses of the household. Utilities, servants' wages, food bills and so forth were all paid by one or other of Henry Fok's companies. So too were his bills at the Chinese Recreation Club. He had the use of a second-hand Jaguar, with its running expenses met by one of Henry Fok's companies.

30. Mr Clough, for the wife, draws our attention to the expenses involved for the various kinds of benefit enjoyed by the husband, as follows:

(a) the maintenance for the Jaguar comes to an average of $13,711 per month;

(b) his expenses at the White Swan Hotel, Guangzhou average $2,179 per month;

(c) Chinese Recreation Club expenses average $2,923 per month, and we found the correct figure should be $2,956 per month;

(d) mobile phone charges average $1,232 per month;

(e) other expenses from Henry Fok's personal account average $71,595 per month. However, this item took into account part of the husband's salary and the $13,500 per month paid to the wife referred to above. As adjusted, the other expenses incurred by the husband that were paid by Henry Fok came to $19,468 per month.

31. Mr Clough submits that his enjoyment from his family, including his salary and rent-free lodging on Mount Kellett comes to $1.8 million per annum. It is also submitted that the capital required to provide for such a sum would be in excess of $45,000,000. Due to the adjustment made to item (e) above, the enjoyment of the husband including his salary and all expenses borne by his family with a home on Mount Kellett rent and expense free comes to about $1.5 million instead. Using an interest rate of 6% per annum, which is close to what may normally be obtainable from banks in Hong Kong on large amount fixed deposits, the capital required would be around $25,000,000 to produce an annual sum of $1.5 million. This is not using the Duxbury calculation for assessing a capital sum necessary to produce an annuity that will stop at the end of the expected life of the spouse being maintained, which is derived from the judgment of Ackner LJ in Duxbury v Duxbury [1987] 1 FLR 7 at p 8F-G, as follows:

"... the resultant figure is ￡540,000 and, according to expert evidence which has not been challenged before us, this sum is required to produce over the assumed future expectation of life of Mrs Duxbury of 35 years, she being at the date of the hearing 45 years old, an income which is spendable (that means after tax) of ￡28,000 per annum approximately. When I say that this sum is required, resort is to be made both to the income which it can produce and to the capital so that over the 35 years she can thus maintain herself, the assumption being - and it is all theoretical - that at the end of the 35 years the whole of that fund will have been spent."

32. Duxbury also deals with the criterion by which an appellate court may interfere with the trial judge's discretion. Stephen Brown LJ said at 15C:

"Mr Jackson has reminded this court of the case of Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343, and of the words of Asquith LJ that it was only where the exercise of a discretion exceeded the generous ambit within which reasonable disagreement was possible, and was in fact plainly wrong, that an appellate court was entitled to interfere. That has recently been endorsed by the House of Lords in the case of G v G [1985] FLR 894."

33. Although there does not appear to have been any specific evidence to support the ability of the husband to pay the sum of $5 million, we are not disposed to hold that the Judge erred in adopting the figure. We accept that the rough estimation based on the parties' standard of living during marriage, the benefit enjoyed by the husband and his ability to raise loans as the Judge described, as well as the husband's various expenses having been paid whenever the need arose, can justify the Judge's drawing the inference that the award of the lump sum of $5 million in favour of the wife was not beyond the resources of the husband based on a practicable point of view. While the Judge found that $17,500 per month was sufficient to cover the wife's personal expenses when varying the periodic payment, that figure has not included expenses to provide a lodging for her commensurate with her standard of living before the break-up of the marriage. What the Judge did was to take into account all the evidence before him and draw inferences from the unusual facts of this case where neither the husband nor the wife seems to have any appreciable tangible assets but both have been enjoying a very comfortable way of life. That is well justified on the basis of the judgment of Waite LJ cited above. Needless to say, the award is not plainly wrong. We do not think we should interfere.

34. In the premises, we are not satisfied that the Judge had erred in principle or on facts. The appeal against the lump sum award of $5 million must be dismissed.

The costs order

35. Although the Judge found that the wife had not been entirely frank with the court regarding her financial matters, and she had not been readily forthcoming in complying with the court orders for disclosure, we are not persuaded by Mr Pilbrow that the Judge, who had been dealing with the eventual financial provisions for the parties after a 15-day trial, with full knowledge of what had gone through in these proceedings before the Family Court, had erred in the exercise of his discretion on costs. He had already taken into account the conduct of the proceedings by the wife to allow only one-quarter of her costs against the husband. This appeal is also dismissed.

Costs of the appeal

36. We also make an order nisi for costs of the appeal to be borne by the husband.