L v. L

FCMC 6452/1995

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 6452 OF 1995

_________________

_________________

_________________

J U D G M E N T

_________________

1. This is the parties' application for ancillary relief against each other upon the dissolution of their long marriage. It is in fact the Respondent Husband's claims that I now need to deal with, as the Petitioner Wife has since abandoned her claims and is prepared to accept only a nominal sum of $1.00 per annum.

2. The parties were married on 13th September 1975 in Hong Kong. It was a childless marriage during which both had regularly worked, with the Wife then and still a medical doctor, while the Husband was initially an accountant and later a successful stockbroker with his own stock brokerage firm. The marriage unfortunately came to an end in 1995 when the Wife petitioned for divorce based on the Husband's unreasonable behaviour including violent temper, financial irresponsibility and extra-marital affair with another woman. In her petition the Wife also sought various ancillary relief including transfer of the parties' former matrimonial home at Kotewall Road, Hong Kong and an apartment in Northern Territory, Australia.

3. On 14th March 1996 the decree nisi of divorce was granted to the Wife on her petition uncontestedly, with the question of her application for ancillary relief adjourned to Chambers pending the filing of affidavit of means first by the Husband within 21 days, and the Wife 14 days thereafter. There was no application for ancillary relief by the Husband at that time. On 6th May 1996 the decree nisi was made absolute.

4. The Husband who was then acting in person filed his home-made affidavit of means on 15th May 1996 in which he deposed to be a member of the Hong Kong Stock Exchange with his own brokerage firm known as C Securities Company and that he was also a director and shareholder of 4 other trading and investment companies but all of which, he said, were either making losses or not trading at all. The only other substantial asset he claimed to have, i.e. the Kotewall Road property in Hong Kong was heavily mortgaged, whilst the Australian apartment which was also part of the Wife's original claims, was said to have never come into his possession as the Australian property developer had gone bankrupt and the purchase money had been returned to him. He claimed to have no other property or asset of significant value.

5. The Wife however was not satisfied that the Husband had fully disclosed his true financial position and on 11th September 1996 obtained an order requiring him to provide further and better particulars with supportive documents on or before 7th October 1996. However, no further steps were taken by either party in the proceedings until about some 9 months later. It turned out that shortly after the said order, a client of the Husband's C Securities Company complained to the Stock Exchange that the company had failed to pay about $1.9 millions due from the sale of shares belonged to that client. This led to an investigation by the Securities and Future Commission of the Husband and the Company and as a result its trading was suspended. On 13th November 1996 on the application by the Commission to the High Court, the Husband's assets were taken over by administrators appointed by the court, which was followed by a flurry a legal proceedings taken by his creditors and clients against him for monies due and owing to them, including the mortgagee bank of his Kotewall Road property and clients of his C Securities Company.

6. At about the same time the matter was also referred to the Commercial Crime Bureau and as a result the Husband was subsequently charged with 11 criminal offences of theft in connection with certain stocks and shares held for clients of C Securities company involving more than $12 millions in total value. On 26th September 1997 the Husband was convicted of the theft charges and sentenced to prison for 2 years and 8 months, and on 17th October 1997 a criminal bankruptcy order was also made against him.

7. Whilst he was in prison and with the assistance of legal aid, the Husband filed an affidavit on 20th November 1997 setting out his then predicament and indicating his wish to apply for a lump sum and monthly maintenance against the Wife in order to meet his future living expenses upon his release from prison. On 27th February 1998 the parties' respective applications came before Judge Gill who for obvious reason adjourned the hearing until after the Husband's release from prison.

8. On 19th June 1999 the Husband was released from prison and on 30th September 1999 he filed a new affidavit stating his inability to find employment or to meet his debts which amounted to $16.5 million in total. He repeated his wish to seek a lump sum and monthly maintenance from the Wife in order to meet his future living expenses. The parties have since filed further affidavits to up-date their financial situation and there have been extensive discoveries of documents on both sides. At the hearing both parties gave detailed evidence and were extensively cross-examined.

The Law

9. Although it is somewhat rare for a husband to claim maintenance against his wife, the law does not make any distinction between parties to a marriage as to their rights to apply for financial provisions in cases of divorce as provided in S. 4 of the Matrimonial Proceedings and Property Ordinance, Cap. 192, and in considering such application by the Husband in this case, I am obliged to consider all the circumstances of the case including the conduct of the parties and all those matters as set out in S. 7 of the same ordinance. I shall start with the Husband's financial situation.

The Evidence

10. The Husband is now almost 60 years old and claims to have been unable to find employment since his release from prison and is basically dependent on his younger sister who is a restaurant cashier earning only $7,900 per month. According to his latest affidavit of means filed on 20th November 1999, the Husband's attempts to find jobs in the financial related field such as estate agent, forex dealer, broker or insurance agents have all been unsuccessful because of his inability to obtain a practice licence due to his criminal record. He says he then turned his efforts to other fields such as salesman but again without any success despite his registration with the Labour Department because of his old age and poor health conditions. He has produced a medical report on him by a Dr Yiu Sing Nam dated 10th November 1999 which confirmed that he was suffering from high blood pressure, diabetes, renal calculus which required operation to prevent the situation from getting worse, and myopia.

11. To meet his living expenses, the Husband says he had to sell his only remaining valuable asset, i.e. his Rolex watch in late 1999 and relied on the refund of his bail money from his criminal trial and an one-off allowance from the Official Receiver, totalling $48,000 but all of which has since been exhausted. He says he then had to resort to borrowing from his friends and has run up further debts of about $30,000 to meet his daily needs and medical expenses. He says he is now in desperate situation as his sister's meagre income is simply insufficient to support both of them.

12. The Husband says he has since his release from prison been residing with his younger sister, initially at her rented cubicle of about 80 sq. ft. at Kei Lung Street, Kowloon where he could only sleep on the floor. As the room was too small and that the landlord would not allow more than 1 person to stay in it, they therefore later moved to another rented cubicle at the present address in North Point, which is a motel like accommodation with cooking facilities and is fully furnished. It costs $8,010 per month in rent but is inclusive of management fees and utilities such as electricity, gas and water.

13. The Husband puts his present monthly expenses at about $9,850 which includes his 1/2 share of the said rental expenses. He says although he has not been able to find employment, he is not sitting idle at home and has in fact often offered voluntary services to charitable organisations such as Oxfarm and World Vision.

14. The Wife however does not believe that the Husband has made full and frank disclosure of his financial means at all material times and asks the Court to draw inferences against him. She says that on 15th May 1996 when he filed his 1st Affidavit of Means, it was in response to her then application for ancillary relief against him and she believes that he had deliberately failed to make full and frank disclosure of his means in order to avoid her claims. She reasons that if all his business including C Securities Company were suffering heavy losses for years as alleged in his said affidavit, how could he manage to meet his then monthly expenses of more than $90,000, and if he had no money as alleged, why did he not apply for ancillary relief against her at that time ? She submits that the mere fact that he agreed under cross-examination at the hearing that in 1995 he did not find it necessary to make such application despite his alleged financial difficulties puts it beyond doubt that he was a man of means and that he had concealed his true financial position in his 1st affidavit.

15. In addition, the Wife argues, that there are ample evidence, both in the documents subsequently filed by the parties and in the cross-examination of the Husband, to show that he has not been full or frank as to the disclosure of his financial means. For example, that he had disclosed only one bank account in his 1st Affidavit of Means with only the statement for 1 month instead of 4 years as required by the order of 14th March 1996. In fact, the Wife says, as revealed in his 2nd Affidavit filed 1 year later on 17th July 1997, the Husband had 4 other bank accounts and 5 credit card accounts not previously disclosed. Yet he still failed to produce copies of full statements of these accounts as from 1992 as stipulated by the said order, and that he had disclosed only the balance of the accounts just prior to his assets being received by the Official Administrators in November 1996. She believes that the only explanation for his action is that he did not want to let the Court know his precise financial position at that time, and that he chose to present a picture that he was poor when faced with the Wife's application.

16. The order of 14th March 1996 required the Husband's Affidavit of Means to exhibit a certificate of his income, tax returns and all bank statements and accounts from 1st August 1992. There is no dispute that his Affidavit of 15th May 1996 did not fully comply with the said order as to disclosure of documents. Although it did exhibit copies financial statements and audited reports of his various companies, there were no bank statements dating back from 1st August 1992 save for one single page of his Dao Heng Bank current account for the month of April 1996 which showed a deficit balance of $40,000 odd.

17. The Husband's explanation for this deficiency in disclosures is that he was then acting in person without the benefit of legal advice as to what he was required to do under the said order, and that at the time of the preparation of his Affidavit, he had not kept his past bank statements and so he could only produce the latest statement in hand.

18. I do not accept his explanation as valid as it is obviously plain to all in the order that 4 years of bank statements were required and that if he indeed had not kept copies of past statements, he could have applied to the banks for copies. After all, it had taken him 2 months to file his said Affidavit and it cannot be said that there was not sufficient time for him to do so.

19. Furthermore, as pointed out by Counsel for the Wife, the Husband's 2nd Affidavit of Means of 17th July 1997 revealed that in fact he had 4 other bank accounts in 1996 which he had failed to disclose in his 1st Affidavit, and despite the fact that he was already legally represented when his 2nd Affidavit was filed, he again produced only 1 page of statement for 1 month for each of the 4 accounts instead of 4 years as required by the order.

20. Without the benefit of seeing all the relevant bank statements of the Husband as stipulated by the said order, or at least some statements at the material time if not the full set for 4 years, it is not possible to rely on bank statements to gauge the Husband's financial position at that time or to see whether what he had said about his financial means in his Affidavit is true or not. One can still find, however, many substantial transactions or activities in the few pages of bank statement that have been produced. To wit, the September 1996 statement of his Hang Seng Bank Account No. 267-000719-001 showed a deposit of $2,672,344.90 on 8th October 1996, and a withdrawal of almost same amount on the same day, whereas the October statement of his National Commercial Bank Account No. 036-721-0-007692-1 showed a deposit of $772,850.00 on 15th October 1996.

21. Both were very large sums of money indeed. They might of course not necessarily be the Husband's income, as he has explained in his evidence that without the assistance of other documents such as his company or business records, it is impossible for him, some 4 years later, to say what these sums were or where they came from, but he believes that they must be related to his stock brokerage business and were not his income.

22. It is in fact also difficult, if not impossible, to find out what the Husband said to be his then income in his 1st Affidavit of Means as in Paragraph 4 where he was supposed to state his income, he simply produced the audited accounts of C Securities Company and his other 4 investment companies without stating his income derived from these companies either as proprietor, director or shareholder.

23. I do not think there is any dispute that the Husband's main source of income came from his C Securities Company, which was however said to have suffered substantial losses for the past 3 years at that time, i.e. $56,424.62 in 1993, $2,515,828.34 in 1994, and $2,068,873.87 in 1995, as verified by the audited reports exhibited to his 1st said Affidavit of Means. Of the other companies of the Husband, X and Y were also said to be suffering losses for years as revealed by their audited reports, while K Trading Investment and Consultant Co and N Ltd were said to be not trading at all.

24. The facts that the audited reports revealed losses and that they were apparently accepted by the Inland Revenue were of course matters between the Husband's companies and the Revenue, and they do not necessarily bind the Wife in these proceedings, as the Husband's income and assets for the purpose of ancillary relief in matrimonial cases are not assessed in the same way as they are for Revenue purposes. To put the matter in another way, the matrimonial court takes a broader view than the Revenue of the concept of resources.

25. What can be seen from these audited reports is that there were income from the business, but there were also more expenses for running the business and hence the business were said to be running at a loss, which prompted the Wife's question that if the Husband's business were indeed in such bad shape for years, why did he continue with them, and why did he not at that time apply for ancillary relief against the Wife who was, after all, a successful medical doctor ?

26. The Wife's suspicion of the Husband's financial position is further fuelled by her discovery of a document at the former matrimonial home before she left in 1995, which is now exhibited to her 2nd Affidavit of 19th October 1999 as "LLKC-11", in which the Husband purportedly listed his total assets at more than $42 million in July 1994. She believes that this may actually represent a truer picture of his financial position than the one painted by him in his 1st Affidavit of Means.

27. Of the assets listed in the document, 2 items in particularly caught the Wife's attention and called for great scrutiny, i.e. investments in bonds, debentures and shares which were put at $18,273,519.50, and life insurance / coy superannuation at $11,700,000.

28. The Husband's explanation is that the document was part of his application to a Westpac Finance Asia Ltd for a loan to finance his purchase of the apartment in Australia in 1994. He denies that he had any personal investments in bonds or shares worth more than $18 million as listed in the document. He explains that the document was prepared by his secretary on his instruction to include the shares held by his C Securities Company for its clients at that time as part of his assets in the hope that it might facilitate his loan application. For the same reason the insurance coverage of $11.7 million for C Securities Company was also included as part of his assets. He agrees that these 2 items were in fact not his assets, but since he was the owner of C Securities, he does not see anything wrong to include them as part of his assets in that document.

29. The Wife of course does not see it that way and suspects that the Husband only made up this excuse to hide the fact that he had accurately revealed his true financial position in that document. The Husband's explanation, on first hearing, indeed did not sound convincing. In fact, it would mean that he had made a false declaration in the document. However, upon considering the audited reports of C Securities Company at that period of time, in particularly the one for the financial year ended 31st December 1994 which covered the month of July 1994 when the said document was prepared, the company's assets which included mainly securities such as stocks and shares were put at $16,214,481.89, a figure not very far off from the one listed in the document at $18,273,519.50, the slight difference of which may be due to the fact that the former figure was taken as at 31st December 1994, whilst the latter was for the month of July 1994 when the document was made.

30. The same can also be said about the item of life insurance of $11.7 million which, although no documentary evidence has been put forward by the Husband, appears to be the kind of compulsory insurance coverage required for his brokerage firm rather than his own life insurance. In any event, even if it were the Husband's life insurance, there is no evidence of what its surrender value or who the beneficiary was.

31. As explained by the Husband, the reason for putting these items as his assets in this document was to facilitate the approval of his housing loan. Illegal it may be, and certainly incorrect and misleading in its contents if the Husband's explanation is true, but I cannot say that the story is so far-fetched or inherently unlikely that it should be rejected. One thing is for sure though, that whatever the Husband's financial position might be in the mid-90s, it must have been affected by subsequent important events such as his criminal conviction and bankruptcy that it should now be looked at in those contexts.

32. The Husband's evidence on his criminal conviction and bankruptcy, either in his affidavits or oral evidence given in Court, is sketchy and incomplete, but according to the affirmation of Po Wai Kwong of the Securities and Future Commission exhibited to the Husband's 2nd Affidavit of 17th July 1997 as "LKK-16 and made in support of the Commission's application to the High Court for the appointment of Official Administrators for the assets of the Husband and C Securities, the total market value of shares in C Securities' account as at 15th October 1996 was found to be $5,878,338, which fell short by $9,500,371 of the value of securities that ought to be so held according to the company's records and that in addition, C Securities also had client payable of about $2.8 million which it was unable to meet and which had prevented the return of securities to its clients. In other words, there were about $9.5 million worth of shares and securities missing from C Securities in October 1996 which belonged to its clients and which it was unable to account for.

33. The Husband admits that he did sell shares that were worth about $1 million without the authority of his clients and used the money to pay for some of the debts of C Securities, but of the remaining shares of about $8.5 million that were missing from C Securities, he suspects that it was his senior manager Ms Tao who had sold them and pocketed all the money herself. He says he did report this to the police but it was he who ended up being charged for the theft of these shares.

34. The Husband's explanation is not acceptable to the Wife who argues that it was a pack of lies as Ms Tao's evidence given at the criminal trial denying the Husband's evidence had been accepted by the trial judge whereas the Husband was convicted as charged. Furthermore, she argues, that Ms Tao has never been suspended by the Hong Kong Stock Exchange for any wrongdoing at C Securities and is in fact still a practising stokebroker.

35. It is also pointed out by the Wife that as the missing $8.5 million worth of shares were deposited with C Securities, when they were sold, the sale proceeds would also be deposited either directly into the account of C Securities or the clients' account from which, she believes, only the Husband could withdraw the money and hence he must have pocketed all the sale proceeds which he is still hiding from the Court.

36. The fact that the Husband has since been declared bankruptcy, the Wife submits, is not conclusive evidence that he is a man without any means, as there is no evidence to suggest that the Official Receiver has made any inquiry about his assets, as it is not the usual practice for Official Receiver to take an active steps to do so, and that the Statement of Affairs relied on by the Husband of his poor financial position was his own declaration rather than the result of any investigation by the Official Receiver. Given the fact that he had lied and cheated on his own clients, the Wife does not think that any weight should be placed in such declaration of his.

37. These are powerful arguments indeed. If the Husband had stolen the $8.5 million, and for which he had been tried and convicted by the Court, where is the money indeed ? And if he still has the $8.5 million, certainly he must fail in his application for a mere monthly sum of $8,000 against his former wife. The answer however is not so simple.

38. Firstly, I do not agree with the Wife's submission that it is the usual practice of the Official Receiver not to take an active steps in collecting the Husband's assets in such cases and that there is no evidence to suggest that the Official Receiver has made any enquiry about the same. There is simply no evidence or basis to make this suggestion. 2 Official Receivers / Administrators were appointed by the High Court on 13th November 1996 to take over all the assets of the Husband and C Securities and to investigate such assets and to do all other things incidental to the exercise of those powers as set out in the said order and for which they were to be remunerated according to the law. To suggest that the Official Receiver would not take any active steps in collecting the Husband's assets because there is no direct evidence of such given in these proceedings is simply preposterous.

39. Secondly, as argued by the Husband, when he was faced with the 11 criminal charges which would lend him in prison if convicted, if he had hidden the $8.5 million, would he have not returned the money in mitigation in the hope to avoid imprisonment ?

40. It is the Husband's evidence that after the Security and Future Commission had started investigating the missing shares of C Securities, he was desperate to find money to repay his clients and to save his business including trying to sell his Kotewall Road Property to raise money, but was unable to do so as the Wife had at that time registered a charge of her claims for ancillary relief against the said Property. He says he therefore tried to negotiate with the Wife for a settlement in return for the uplifting of the charge, the details of which are contained in Paragraph 11 of his 3rd Affidavit of 20th November 1997.

41. The Husband in fact bitterly blamed the Wife for his predicament because of her refusal to uplift the charge. This is what he said in Paragraph 12:-

"12. The Petitioner had registered a charge on the Previous matrimonial home. This had created substantial problems on my part because for long time, I had wanted and was obliged to sell the said Property in order to repay the debtors who had demanded me to repay the debt owed to them and to stop from incurring further interest, but I was unable to do so because of the subject charge. Should I be able to dispose the said Property earlier before the financial crisis of my company happened, I could cut off my liability with Hang Seng Bank earlier and be able to fetch some case to ease the working capital situation of my business and I would not be running into my present status resulting a two year imprisonment in jail. The outstanding loan amount booked under Hang Seng Bank against the mortgage of the said Property had been running and still carries around HK$70,000 interest a month which had aggregated my debt liability with Hang Seng Bank by at least HK$1 million in the past year. Hence, the longer the Petitioner delays the settlement of this case, the more banking interests and legal cost will be incurred. The Petitioner was and is well aware of all troubles and consequences that would or had caused me."

42. Although the Wife has denied in her 2nd Affidavit of any agreement to pay maintenance to the Husband as alleged, she does not dispute that there were attempts to negotiate at that time, which are also evidenced by the various letters written by the Husband's solicitors to the Wife's and exhibited to Husband's 3rd Affidavit.

43. It would therefore not be unreasonable to question that when the Husband found himself in deep trouble and stand to lose all his business and assets including his home in the Kotewall Road Property which was worth $11 million, and his reputation which he has built up for years as a reputable member of the Stock Exchange and the Hong Kong representative of Northern Territory, Australia, and above all, his liberty, and at his then age and health condition, would he still cling on to this $8.5 million which, when compared with what the Husband stand to lose, was relatively insignificant.

44. Given the evidence before me and the facts and circumstances at that time, I do not believe that the Husband still has $8.5 million with him without being discovered by the Official Receiver. Where then did the $8.5 million go ? The Husband has blamed it on his former manager Ms Tao which was however already rejected by the court in his criminal trial. If he had used the money to pay for his personal assets, they would have been seized by the Official Receiver. Or he could have spent all the money, which is unlikely in view of the large amount over such a short period of time.

45. There is of course a possibility which was unfortunately never properly canvassed at the hearing, i.e. the money might have been lost through speculation in shares margin, a practice not uncommon in some rogue stock brokers by selling shares of their clients without authorisation betting for a fall in the market so that the same shares can be bought back at a lower price later on, thereby making money from the difference in share prices, a practice which can of course backfire if the market goes up instead of down, and if it keeps going up and long enough beyond the means or ability of the broker to rectify the situation, the practice will be exposed in similar circumstances as C Securities.

46. I am not saying that this is what actually happened to the Husband's business, as there is no evidence to suggest it, but it is a possibility which has never been looked into at the hearing, and without access to the evidence produced at the Husband's criminal trial, it is simply not known what were the findings of the criminal court, if any, as to the whereabouts of the missing $8.5 million worth of shares from the C Securities' account, but I am not satisfied, for the reasons aforesaid, that the Husband still has the money with him, as it would otherwise beg the obvious question : if he has $8.5 million with him, what is he doing seeking a mere few thousand dollars per month from the Wife ?

47. The Wife has proferred an answer. She believes that the Husband is trying to take revenge against her as he blames her for causing the collapse of his business when she refused to uplift the charge registered against his Kotewall Road Property in 1997. As he is on legal aid, she says he has nothing to lose even if his application turns out to be unsuccessful, but by pursuing his claim, he can at least cause trouble to her and to waste her legal costs, and may even be lucky enough to persuade this Court to grant him some maintenance from her.

48. I do not find this argument convincing. I have no doubt that the Husband still resents the Wife for her action against his Kotewall Road Property in 1997. In fact he also blames her for informing some of his clients of the trouble with C Securities in 1996 which led to their exodus and the eventual collapse of the business, but he also did try to settle the ancillary relief dispute with her at that time by making an offer on similar terms of today's. If he had wanted to take revenge against the Wife by causing trouble to her, I would have expected him to act a lot more unreasonable such as by adopting an unyielding position and making outrageous claims such as for a transfer of her property and large maintenance orders in order to run up huge legal costs. This is simply not the case before me. I accept that his present application is being pursued on his genuine belief that he is entitled to financial assistance from the Wife in view of his present unemployed situation.

49. But is it true that he has been unable to find any work, and if so, has he tried hard enough ? The Wife seems not to think so. She argues that there is no medical evidence to suggest that he is physically unfit to work, and of the medical report produced by him, she has studied it as a medical practitioner and is of the view that he is physically fit to work. She says as a matter of fact, he is enjoying a good life by having meals at the restaurant and has found a new girlfriend. She believes that he should at least find a job as a clerk, security guard or deliveryman to earn his own living rather than making outrageous demand for a lump sum to start a new business.

50. I agree with the Wife that the Husband's medical report does not show any strong indication that he is unfit to work. It is quite common for men at his age to have high blood pressure or diabetes, but there is simply no evidence that he is unable to work because of these conditions. He was previously an accountant and an experienced stoke broker with good business connection and sufficient income to maintain a $90,000 per month life style. Ordinarily it would be difficult for him to refute that he has high earning capacity. He is however in no ordinary situation. He has a criminal record of theft who has been in prison for more than 21/2 years. I do not think he has any future in the finance business. Furthermore, as an undischarged bankrupt, he is barred from holding any directorship in any company. The only kind of jobs that may be suitable is, as suggested by the Wife, as a clerk or a deliveryman. With his background and at his present age in the present job market, I can see he might initially have some difficulty finding employment, however it has been more than 1 year since his release from prison, and I am not convinced that it is impossible for him to find a job. Furthermore, if he is without any job or income, how did he manage to meet his present expenses of almost $10,000 per month ? Certainly not just by relying on his sister's income. His evidence on this again is sketchy but I would put his earning capacity at at least several thousand dollars per month.

51. The major item of the Husband's stated monthly expenses of $9,850 is his share of the rent for his present apartment with his sister. Whilst one may argue that he could have rented a cubicle by himself at a cheaper rent rather than the present one with cooking facilities, I accept his explanation for the need to be able to prepare his own food. There is no major challenge to his other expenses by the Wife and I do not find them to be unreasonable or excessive.

52. I shall now consider the Wife's financial situation. She is now almost 54 years of age and has been a self-employed general medical practitioner since 1977. She runs a clinic by herself at Tak Tin Estate, a public housing estate in Lam Tin, Kowloon. She says her income has dropped substantially the past year or so from an annual net income of about $1 million to the present low of less than $250,000, giving her only an average monthly income of about $20,000. In order to supplement her income, she has also worked as a part-time sales agent for Amway and Nulife, earning additional income of about $1,450 per month on average. She has produced copies of balance sheet and profit and loss account of her medical practice for the year ended 31st March 1999 and also notices of assessment of profit tax from 1995 to 1998 as well for comparison. In addition to the financial statements of her practice, the Wife has also produced copies statements of her several bank accounts in which she claims to have no substantial savings.

53. The Husband disputes the Wife's evidence on her present low income, pointing out the fact that according to her tax returns, her annual income had all along been on the rise from $700,000 odd in 1996, $950,000 in 1997, and $1,060,000 in 1998, and it is inconceivable that it could suddenly drop so dramatically in 1999 to less than a quarter of the previous year. He suspects that she must have diverted or concealed part of her income to avoid his present application.

54. The Wife gives 2 reasons for her reduced income in her detailed oral evidence given at the hearing. She says firstly there has been a lot of re-development to the Lam Tin area in which she works as a result of which many of her former patients have moved away, whilst those who have stayed behind are ageing and have preferred to attend public or government clinics such as the Jockey Club Clinic nearby as they can no longer afford private doctors. In order to attract more patients, the Wife says some of the private doctors in her neighbourhood are charging as little as $70 to $100 per consultation, hence less income than before.

55. The second reason, as alleged by the Wife, is that there has been more competition from new doctors moving into her area. She says there used to be only a few doctors in her neighbourhood but now there are as many as 18 registered private doctors in Lam Tin area, not to mention those who are unregistered as well. Some of her younger competitors, the Wife says, even work on Sundays and public holidays, something which is more difficult for her in view of her age. She says these days she has only about 10 odd patients per day with an average daily intake of less than $2,000 at $130 per consultation. She also explains that her patients always pay in cash which she would being home each evening for use to meet her expenses, or deposit in her bank accounts the next day.

56. According to her 2nd Affidavit of Means of 19th October 1999, the Wife has 5 bank accounts including 2 current accounts and a foreign currency savings account with the Hongkong Bank, and a current and savings account with Liu Cheong Hing Bank. 2 transactions in the 2nd Hongkong Bank current account No. 118-034370-001 in particularly attracted the Husband's attention, i.e. a cash deposit of $450,000 on 27th June 1995 and a transfer deposit of $1,030,164.42 about 2 weeks later on 10th July 1995.

57. For the deposit of $450,000, the Wife's explanation is that it was a loan from a very closed friend who was also a fellow medical practitioner to enable her to pay the deposit for the flat which she purchased for her home after leaving the Husband in 1995. As her friend had no current account, the Wife explains, so she had to withdraw the money from the bank to give her the cash which she brought home before depositing the cash into her said Hongkong Bank account the following day. There was no loan agreement of any sort necessary in view of their close relationship, the Wife says, and that she had repaid her friend over the years by instalments of several thousand dollars each. As for the 2nd deposit of $1 million, the Wife says it was for the balance of the down payment for the purchase of her property and that it came from her foreign currency time deposit representing almost her entire savings at that time.

58. I do not think there is any dispute that the Wife did at that time purchase her property for $3.8 million by means of a mortgage of $2.52 million, which means that she would have to make a down payment of about $1.3 million plus legal costs, stamp duty and other expenses. I do however have great difficulty with her evidence in respect of the cash deposit of $450,000 which, I must say must be a most unusual way of lending her the money. Firstly, it is incredible for some one like the Wife's friend who was a doctor practicing in Hong Kong to find it unnecessary to operate a current account to pay for the rent of her clinic, the salaries of her staff, or medical supplies for her practice, just to name a few normal and re-current expenses which one would conveniently pay by cheque.

59. Secondly, even assuming this unlikely situation of this friend not having any current account is indeed the case at that time, surely there must be better and safer ways to lend the money to the Wife than the way as described by her. $450,000 is a lot of money in cash to be withdrawn from one's bank account and to be carried around and anyone with any common sense would surely know that there would be great risk of the money being robbed after it left the bank. Furthermore, it is equally incredible that after receiving the cash from her friend, the Wife would take it home that evening instead of depositing it into her bank account right away, thereby exposing herself to further risk of being robbed of the money.

60. Since the money was intended for initial deposit for the flat, and the evidence is that the Wife's friend also knew about this, one cannot help to ask that with the minds of 2 obviously highly intelligent persons, why couldn't they think of better ways to move the $450,000 from the friend's account into the Wife's hands, such as by internal bank transfer if they had accounts in a bank common to both, such as the Hongkong Bank in which the Wife had 3 accounts, or by means of a cashier order or bank draft which may cost the Wife some service charge, but surely a much more secured and convenient way than dealing with the money in cash. I simply have great difficulties accepting the Wife's evidence about the $450,000.

61. I am also unable to find any evidence in support of the Wife's allegation that the money was a loan from her friend other than her own words. There is not one piece of documentary evidence indicating it was a loan such as loan agreement or any evidence of repayments which may be seen from her bank statements. After all, it was a large sum of money by any standard and surely there must have been some documentary evidence of its repayment which was by many instalments over the years. There is simply none produced by the Wife.

62. If, however, this deposit of $450,000 was not a loan from her friend as alleged by the Wife, what could it be ? The only possible answer that I can think of is that it was part of the Wife's assets the source of which she has not disclosed. I must stress that I am not saying that I believe this must be the case, as it was never put to the Wife by Ms Wong for the Husband during her cross-examination of the Wife. I am saying that I have difficulty accepting the Wife's explanation as to the deposit of the $450,000 and that it is not unreasonable in the circumstances to suspect that the Wife has not told the truth about the source of this money.

63. Be that as it may, and even assuming that the $450,000 was indeed part of the Wife's assets, it was then and what about now ? Has the Wife been truthful about her present financial situation ? The Husband seems to be saying that if she has lied about the source of the $450,000 which he believes was part of her assets in 1996, then adverse inferences should be drawn against her as to her financial position of today. However, it is not enough simply to ask that adverse inferences be drawn, as I would still need to know what the Wife has today, after all, the $450,000 has clearly been already spent in the purchase of her flat and is obviously no longer available to meet the Husband's claims.

64. The Husband believes that the Wife has more income from her medical practice than she is prepared to disclose. According to him, the Wife's evidence about her present income is inconsistent in that she told the Court that as she has only about 10 odd patients on average per day charging about $130 from each patient, her daily income is therefore about $1,000 odd on average. He says this will work out at an average monthly turnover of about $30,000, which means that after deducting from her clinic's overhead expenses, she should have no or very little net income. However according to her tax return filed on 19th October 1999, the Wife stated her net income at $20,000 per month, which is inconsistent from her oral evidence.

65. In reply, the Wife argues that there is no basis for the Husband to submit that net of operation expenses, she would have no income at all. She says her evidence is that after deduction of operating expenses, the assessable profits for the year 1998 - 99 was about $242,000. I agree that the Wife's evidence about her income appears to be inconsistent with what is stated in her tax return for 1998 / 99, as submitted by the Husband, but when she was describing her daily income at the hearing, she was referring to her present income, while the tax return was for her income in 1998 / 99, which was more than 1 year ago. In other words, she appears to be saying that her present income is even less than that of 1 year ago. This is also disputed by the Husband.

66. According to the Husband, as the Wife's tax returns show a gradual increase in her income from $678,000 in 1994 / 95 to the all time high of $1,060,000 in 1997 / 98, it could not have dropped so dramatically and so suddenly just one year later to only $242,000 in 1998 / 99 even if it is true that her practice has been affected by the re-development program in Lam Tin and by competition. He argues that such re-development has been going on for years which has in fact benefited her practice as evidenced by the gradual rise of her income until 1998 / 99.

67. I agree there is validity in the Husband's argument. I am unable to see any connection between the re-development program and the Wife's clientele based on her tax returns. Furthermore, as pointed out by the Husband, re-development program does not just mean tearing down buildings and moving the occupants away, it also means re-building new buildings to be occupied by people again. In fact, if the re-development program indeed has any adversed impact on the Wife's practice, how can it reconcile with her evidence that more and more doctors are moving into the neighbourhood with their practice ? Surely it is a simple matter of demand and supply and that these new doctors must have first assessed the potential supply of patients before deciding to move into this area. Whilst I can understand keen competition may indeed cut into the Wife's profit margin, and that there can be only so many patients in the neighbourhood to support a certain number of doctors or clinics, and that if this number is exceeded it will affect the income of individual doctor, but I find it difficult to believe that it could reduce the income so dramatically by 3 or 4 times as alleged by the Wife in her case over just the span of 1 year, which is why the Husband suspects that she has deliberately fabricated a sham income with the intention to defeat his claims, as the time of his application appears to co-incide with the dramatic reduction of her income.

68. Between the time of the issue of the Wife's petition in August 1995 and the Husband's criminal trial in August 1997, there was only one application for ancillary relief and it was the Wife's, and until the collapse of his business, the Husband was even prepared to offer to pay her a lump sum of $1 million, a matter not disputed by the Wife but the offer was not acceptable to her because she says it was only to be paid 1 year later. According to the Husband's 3rd Affidavit of 20th November 1997, it was in about late July 1997 shortly before the criminal trial that he met the Wife at his solicitor's office when he asked her to pay him $8,000 per month as maintenance in view of the collapse of his business and his financial difficulties. The meeting is again not disputed by the Wife but she denies ever agreeing to the Husband's maintenance request. It is therefore clear that the Wife knew about the Husband's predicament and his requirement of monthly maintenance from her at that time, and that by late 1997 she would have realised from the Husband's 3rd Affidavit of 20th November 1997 that he had formally applied for a lump sum to assist him to re-establish his life and for monthly maintenance to meet his future living expenses after his release from prison. This, the Husband argues, is too much a co-incidence when the Wife started to experience a dramatic reduction in her income immediately afterwards in the following year in 1998.

69. There is certainly cause to the Husband's suspicion but unfortunately for some reason not known to this Court there has been no more up-to-date financial documents of the Wife's practice such as tax return or balance sheet and profit and loss accounts for 1999 /2000 which should be available by the time of the hearing to enable me to ascertain her latest financial situation, nor is there any further production of the Wife's Hongkong Bank Assetvantage Account No. 564-062354-888 after the 1 page statement dated 30th June 1995 exhibited to her 1st Affidavit of Means which shows more than $1 million in savings in her account at that time.

70. I accept that this savings may have already been used later for the purchase of her property, but as the Wife was making good money between 1995 and 1998, it would certainly be helpful to see what sort of savings she might have been able to accumulate in this account. I note that in her evidence she did give an account of how much she was able to save during those years, most of which she claims to have been used to pay for her profit tax, but as her other bank accounts did not reveal such savings, I expect that she would have put these savings in fixed deposit in the said Assetvantage account, as she has done in the past or in some other accounts, and I see no reason why she has not produced any further bank statements of this account since her 1st Affidavit, or for that matter, why she produced only 1 page statement in her 1st Affidavit instead of from August 1992 as stipulated under the original order of 14th March 1996.

71. As I have said earlier, the profit tax assessment of the Wife's practice for 1998 / 99 at $240,000 is a matter between her and the Inland Revenue and is not necessarily conclusive evidence of her income. For the various reasons aforesaid I share the Husband's suspicion about the Wife's present alleged low income and I have reservation over whether she has fully disclosed her financial means. However the information before me is simply not enough for me to draw any firm conclusion as to exactly how much she is making today, and the loose manner in which the Wife was being cross-examined by Ms Wong for the Husband on her financial position certainly does not help at all, whilst many of the allegations made against her in Ms Wong's submission such as manipulating her income in cash so as to avoid higher tax or failing to declare all her income to the Inland Revenue Department were never put to the Wife during cross-examination.

72. Nor, indeed, was she ever asked how she has been able to meet her monthly expenses of $36,000 or the mortgage instalment of $25,000 for her flat with her present income. There are many relevant questions about the Wife's financial position which have not been asked or answered. Although I have reservation about whether the Wife has fully disclosed her present financial position, given the limited information before me, I am unable to reach any firm conclusion on how much income she is getting from her medical practice, although I doubt that it is as little as $20,000 per month.

73. Of the Wife's stated present expenses of $36,496.45, the biggest item is the mortgage instalment of $25,159.20 which is essential, whilst the other items appear to be normal and reasonable, in particularly in view of her background and status in the society. But if her monthly expenses exceed her income, which appears to be the case according to her evidence, how then did she manage ? Unfortunately as I have said, this was never explored during her cross-examination, and as there has been no production of bank statements beyond December 1999, it is not even possible to gauge from such documents of her present financial position.

74. Whether the Wife has or has not the financial resources to support the Husband, it is submitted on her behalf that the Husband is the author of his own misfortune and that he has no one to blame but himself for what he did the past few years and it would be inequitable to disregard such conduct of his and to order the Wife to support him now.

75. The relevant part of S 7 of the Matrimonial Proceedings and Property Ordinance, Cap 192 as to conduct is :

"It shall be the duty of the Court in deciding whether to exercise its powers under section 4, 6 or 6A in relation to a party to the marriage and, if so, in what manner, to have regard to the conduct of the parties and all the circumstances of the case including the following matters, that is to say - ......"

76. Conduct therefore appears to be placed in the forefront of the matters the Court is required to consider, and that it does not only mean conduct causing or contributing to the breakdown of the marriage, but may also relate to the conduct of the proceedings, and may occur at any time, even after the breakdown of the marriage or after decree absolute, as in the case of Jones v. Jones (1986) Fam 8 where the husband attached the wife with a razor after decree absolute, causing her right hand to be permanently disabled so that she was unable to continue to work, conduct was taken into account.

77. The kind of conduct of the Husband in this case which the Wife wants to be taken into account is his adultery with one Ms Murine Tsui which she says was responsible for the breakdown of their marriage, and his dishonesty in stealing his clients' shares in C Securities for which he was convicted.

78. It is true that the Wife was granted the decree of divorce based on the Husband's behaviour as set out in her petition which included his adulterous relationship with Ms Tsui and that it was not contested by the Husband, but adultery was only one of the factors for the breakdown of the marriage, and the need to examine the conduct of the parties does not mean that the Court has to entertain the parties' mutual recriminations as to their respective responsibility for the breakdown of the marriage, something which was recognised in Wachtel v. Wachtel where Ormrod J said :-

"As section [25] stands, conduct is to be taken into account as a factor which may modify the result which is arrived at after consideration of all the other factors specified in the section. The Court can only approach this issue in a broad way. It should bear in mind the new basis of divorce which recognises that, generally speaking, the causes of breakdown are complex and rarely to be found wholly or mainly on one side, and that the forensic process is not well-adapted to fine assessments or evaluations of behaviour, and that it is not only conduct in relation to the breakdown which may have to be considered. Conduct subsequent to the separation by either spouse may affect the discretion of the Court in many ways, e.g. the appearance of signs of financial recklessness in the Husband or of some form of socially unacceptable behaviour by the Wife which would suggest to a reasonable person that in justice some modification to the order ought to be made. In my experience, however, conduct in these cases usually proves to be a marginal issue which exerts little effect on the ultimate result unless it is both obvious and gross."

79. And in the Court of Appeal Lord Denning MR said:

"It has been suggested that there should be a "discount" or "reduction" in what the Wife is to receive because of her supposed misconduct, guilt or blame (whatever word is used). We cannot accept this argument. In the vast majority of cases it is repugnant to the principles underlying the new legislation, and in particular the Act of 1969. There will be many cases in which a Wife (though once considered guilty or blameworthy) will have cared for the home and looked after the family for very many years. Is she to be deprived of the benefit otherwise to be accorded to her by section [25](1)(f) because she may share responsibility for the breakdown with her Husband ? There will no doubt be a residue to cases where the conduct of one of the parties is in the judge's words ..... "both obvious and gross", so much so that to order the party to support another whose conduct falls into this category is repugnant to anyone's sense of justice. In such a case the Court remains free to decline to afford financial support or to reduce the support which it would otherwise have ordered. But, short of cases falling into this category, the Court should not reduce its order for financial provision merely because of what was formerly regarded as guilt or blame. To do so would be to impose a fine for supposed misbehaviour in the course of an unhappy married life. [Counsel] disputed this and claimed that it was but justice that a Wife should suffer for her supposed misbehaviour. We do not agree. Criminal justice often requires the imposition of financial and indeed custodial penalties. But in the financial adjustments consequent upon the dissolution of a marriage which has irretrievably broken down, the imposition of financial penalties ought seldom to find a place."

80. Buckley LJ in a later case of Armstrong v. Armstrong (1974) 4 Fam Law 156 said that the relevant question was not so much whether the conduct was obvious and gross but whether the conduct was such that it would be repugnant to anyone's sense of justice to say that it ought not to be taken into account. The Court will therefore look at the whole picture and assess the gravity of a party's conduct in the light of the conduct of the other party.

81. I do not agree that the Husband's adultery with Ms Tsui during the marriage was such conduct that in the light of this case should be taken into account. There certainly isn't much evidence or information on this particular issue that has been adduced at the hearing, and in view of the fact that the parties had ceased their sexual relationship since the 3rd year of the marriage irregardless of whose fault it was, I am unable to say that it is a conduct which is relevant to the financial dispute between the parties or that it should be taken into account.

82. I cannot, however, say the same about the other conduct of the Husband, i.e. his dealings of his clients' shares in C Securities that caused the eventual collapse of his business and the loss of all his assets including the former matrimonial home which the Wife initially intended to claim. There is no doubt that in the Wife's petition she sought to claim a lump sum and / or transfer of the former matrimonial home at Kotewall Road which was then worth at least $10 million with a net equity of about $5 million. Although the property was registered in the Husband's sole name, the Wife believes that she had earned a share in the property by having paid for all the household expenditure while living there during the marriage and by having properly discharged her duty as a wife in their 20 years marriage.

83. There is also no dispute that the Husband did at one point in 1996 offer a lump sum of $1 million to settle the Wife's claim before the collapse of his business. Whether or not the offer was a reasonable one which the Wife should have accepted, I think she is entitled to feel aggrieved that had the Husband not been dishonest to his clients by stealing their shares and got caught, she would have been awarded a lump sum from the Husband, be it $1 million or otherwise, and being the author of his own misfortune as a result of his dishonesty, it would be unfair, she argues, to now allow him to claim against her instead, and that such conduct of his, she submits, is both obvious and gross that it is inequitable to disregard it.

84. Conduct of one party which depreciated or destroyed the family assets will certainly be taken into account. A leading case on financial conduct is Martin v. Martin where the parties married in 1942, and separated in 1969. The Wife stayed at the farm, which had been the last matrimonial home, and improved it, whereas the Husband entered into a series of transactions one of which resulted in a large loss. In the Court of Appeal, Cairns LJ said :-

"Another question which arose was as to whether the Husband's conduct in relation to the financial matters after the separation was relevant. In my opinion, nothing that was said in Wachtel v. Wachtel [1973] Fam 72, [1973] 1 All ER 829 was intended to apply to any conduct either during or after cohabitation which has the effect of reducing the funds available to provide for the needs of both parties after divorce. Such conduct must be taken into account because a spouse cannot be allowed to fritter away the assets by extravagant living or reckless speculation and then to claim as great a share of what was left as he would have been entitled to if he had behaved reasonably. .....

Next it is complained that the judge referred to money lost in successive unsuccessful business ventures and to the Husband's dissipating assets to the extent of about ￡33,000. It is true that sums of that order have disappeared. However, the only wholly successful business venture was the purchase of Downhayes Farm which reuslted in a capital loss of some ￡35,000. This was a loss which was, or should have been on the judge's finding, shared equally between the Husband and Mrs Freame. Moreover, a large investment in agricultural land in 1974 was not necessarily reckless. The disastrous fall in land values in the next 12 months was something which took many reasonably prudent business people by surprise. I have, therefore, some sympathy for the Husband over this loss. But, on the other hand, it can properly be said against him that he was entering into a transaction on a scale which was far beyond his own resources and which he could only finance by putting in jeopardy money which the Wife was entitled to share.

These are matters which are properly to be taken into account by the Court in complying with the final words of section 25(1) of the Act of 1973. It is the Court's duty to make such an order as will place the parties, so far as practicable, and having regard to their conduct just to do so, in the financial position in which they would have been if each had properly discharged his or her financial obligations and responsibilities to the other.

Now here the financial position of both parties has been adversely affected not merely by the separation, which involves the maintenance of two homes instead of one, but by the fact that the Husband has dealt with the assets in such a way as he would clearly to have adopted if he had continued to live at Potts Farm and to carry out his obligations to the Wife. This, in my judgment, was conduct which makes it just for the Court to be more concerned to mitigate the reduction in the Wife's standard of living than the Husband's."

85. Notwithstanding the repeal of the concluding words of the original section 25 (1) of the English Matrimonial Causes Act of 1973 and the fact that there are no such requirement in our relevant S 7 of Matrimonial Proceedings and Property Ordinance, it is believed that this statement remains good law in relation to financial conduct.

86. In C v. C (1990) 2 HKLR the Wife's losses in gambling in Macau and in speculating on the Hang Seng future exchange were regarded as financial irresponsibility and a total sum of $1.4 million of such losses were brought into account in assessing her means and her share of the matrimonial assets.

87. In the present case, as a result of his dishonest dealings of the clients' shares in C Securities for which he has been convicted, the Husband has not only lost all his personal assets, but also family assets such as the former matrimonial home, thereby substantially depreciating or destroying the family assets and depriving the Wife her rightful share therein or for which she could have made a proper claim. I have no doubt that such conduct of the Husband was one which falls within the category of gross and obvious, or was such that it would be repugnant to anyone's sense of justice to say that it ought not to be taken into account, or in allowing him to now make a claim for lump sum against the Wife whose main asset is her own residence which was purchased after the breakdown of the marriage with her own resources and which the Husband has not contributed at all financially or otherwise. It is heavily mortgaged and is needed by the Wife as her home. There is no evidence that she has the capital to pay the Husband a lump sum other than forcing a sale of her home, nor is there any evidence as to how much lump sum the Husband may need to re-establish his career. It would in my view simply not be fair or equitable in the circumstances to order the Wife to pay the Husband any lump sum.

88. As regard periodical payment, I accept that the Husband may be in need of some financial assistance until such time when he is able to find employment, of which I have already made my comment when I dealt with his earning capacity earlier, but again although I have some reservation about the Wife's evidence as to her present income, my difficulty is that with the sketchy evidence and information before me, I am unable to make any finding as to her present income with sufficient certainty to enable me to make any substantial maintenance order in favour of the Husband at this stage. In fact the same can be said about the evidence on the Husband's efforts to find employment.

89. This has been a lengthy marriage lasting 20 years. Despite its length the parties appeared to have led a somewhat independent life, financially at least, during the marriage. Their sexual relationship ceased on the 3rd year after the Husband had allegedly contracted venereal disease. The Wife has alleged in her petition that the Husband had not been supportive of the family financially during the marriage and that he rarely contributed towards the up-keeping or rental payment of their earlier homes during the marriage. Of course the fact that the Wife has proved her petition against the Husband and thereby obtained the decree of divorce does not necessarily mean that she is totally in the right from the point of view of assessing matrimonial conduct when considering what if any periodical payments should be ordered. What is however proved in court cannot afterwards be disputed, and it is not open to the Husband to seek to refute the facts proved in support of her petition, not that he has attempted to do so at this hearing.

90. It appears to me from the facts of this case and from the petition that this is a case in which the parties had been more or less financially independent of each other as both parties were highly skilled professionals with good earnings throughout the marriage and the fact that there is no evidence of any jointly purchased or owned assets such as joint bank accounts or properties. If not because of the Husband's predicament in 1996, I believe that they would have achieved a clean-break financially between them after their divorce. For the reasons aforesaid and having considered all the relevant factors and circumstances of the case, I believe that the Husband is not entitled to any lump sum the application for which is hereby dismissed. It would also be appropriate to dismiss all the Wife's claim for ancillary relief including nominal maintenance in view of the respective financial situation of the parties. I am however not be prepared to dismiss the Husband's application for periodical payment in view of his present financial situation and would instead give him a nominal order of $1.00 per annum so that in future if the Wife's financial position improves and that he is still in needs, he can always apply for variation of this order. Lastly, regarding costs, as the Wife has successfully resisted the Husband's applications for lump sum and substantive periodical payments, I agree that she should be entitled to her costs which will be paid by the tax payers since the Husband is legally aided. For this reason I have to say that some of the costs in her preparation of the trial bundle such as the extensive and expensive copies of documents should have been avoided as some of them were never required at the hearing, such as the 89 pages of financial statements of the Husband's companies exhibited to the Wife's 3rd Affidavit which is wholly unnecessary. I will urge the taxing master to look into this item in particular when taxing the Wife's bill.

91. In summary, my order is as follows :-

1. The parties' respective application for ancillary relief against each other is dismissed save that the Petitioner shall pay to the Respondent a nominal sum of $1.00 per annum for his maintenance;

2. Costs including all costs reserved be to the Petitioner to be taxed if not agreed with Certificate for Counsel. This is an order nisi to be made absolute at the expiration of 14 days;

3. The Respondent's own costs to be taxed on Legal Aid Regulations.