DJM v. LYB

FCMC 17018 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 17018 OF 2012

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J U D G M E N T
(Ancillary Relief)

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1. This is a trial on the Respondent (hereinafter called “W”)’s application for ancillary reliefs against the Petitioner (hereinafter called “H”).

Background

2. H is a 43-year old Australian, an English teacher on the NET program.  W, aged 46, is from mainland China.

3. The parties met at university in Japan.  They were married in May 2001 in Japan.  They lived in Japan between 2001 and 2007.  They moved from Japan to live in H’s home town in Australia between July 2007 and July 2010.  They have lived in separate bedrooms since about 2009.  They moved from Australia to Hong Kong in August 2010.

4. The divorce petition was filed on 16 November 2012, a Decree Nisi was granted on 20 June 2013 and a Decree Absolute on 12 August 2013.  By an order dated 25 February 2014 made by Deputy District Judge A. N. TSE, it is ordered H shall continue paying the rent and utilities, and further pay W maintenance pending suit in the sum of HKD15,000 per month, the 1^st payment to be made on 1 March 2014.

W’s open offer

5. Base on her own calculation, she believes that H now has at least AUD700,000 cash on hand.  She requested:-

(i)  a lump sum payment from H of AUD350,000 in cash; and

(ii)  periodical payments of at least AUD6,000 per month, in support of her future plan to live in Australia.

H’s open offer

6. H seeks a clean break so both parties can go their independent ways.  H said he is worth about AUD300,000, and W has AUD64,400 in bank in Australia.  H also said W has investments that her father was taking care of for her in China.  He offerred to pay her a lump sum payment of AUD150,000 in full and final settlement of her claim for ancillary reliefs.

The law

7. Section 7(1) of the Matrimonial Proceedings and Property Ordinance, Cap 192, sets out the governing principles in relation to the distribution of assets upon dissolution of the marriage.  The Court will have regard to the conduct of the parties and all the circumstances of the case including:-

(a)  Income, earning capacity, property and other financial resources;

(b)  Financial needs, obligations and responsibilities of the parties;

(c)  Parties’ standard of living before marriage breakdown;

(d)  Age of the parties and duration of marriage;

(e)  Any physical / mental disability;

(f)  Contributions made by parties to welfare of family;

(g)  Value of any benefit a party will lose chance of acquiring.

8. Further guidelines have been given by the Court of Final Appeal in LKW v DD (2010) 13 HKCFAR 537, namely a five-stage process: identifying the parties’ assets; assessing the parties’ needs; deciding to apply the sharing principle; whether good reasons for departure from equality exist; and deciding the overall outcome.

Issues in dispute

9. There is no real estate. The parties’ assets are largely monies held in bank accounts.  Throughout the years, the parties have lived by cash.  There is little paper trail.  W said H used to keep his savings by way of deposits held under H’s name with banks. She believes that a huge sum of money that forms part of the family assets is being hidden by H.  There is also a dispute as to whether W holds AUD63,000.00 in her bank account beneficially as alleged by H or whether she holds 3/5 of the money on trust for her sister as claimed by her, and as to whether she has unclosed assets in China.  The main issue boils down to: What is the size of the family pot for sharing?

The ‘Should Be’ savings

10. The only financial resource throughout the marriage has been H’s income.

11. W said the family savings had been significantly increased during the time they lived in Japan between 2001 and 2007.  H set out his financial position in his Form E, previous Affidavits, and in the Answers to the W’s Questionnaires and documents disclosed.  H worked in Japan from 2000 - 2007 as an English teacher on the JET program in Tokyo. His yearly salary was JPY3,600,000/ AUD39,000.  In his narrative Affidavit, H stated that his expenses including payment on rent, utilities, fuel, food, clothing, grooming, pocket money to W and the parties’ travelling expenses inside and outside Japan amounted to AUD43,560 per year.

12. On account of H’s statement, he was running a deficit budget.  Despite of that, H under his name lodged a time deposit in the sum of AUD123,000 [B/670] with the Westpac Banking Corporation (hereinafter called “Westpac”) in 2007 when the parties left Japan for Australia.  Much as it is not disputed that W worked as a part-time waitress in spells in Japan and that she chipped in JPY30,000 a month on family expenses, the numbers do not add up.

13. During cross examination, H explained to the Court that a substantial part of the said sum of AUD123,000 represented money that he saved from his work as an electrician in Australia before he went to Japan.  I am incredulous to H’s explanation.  Not only has H never mentioned that he amassed savings from his job as an electrician in Australia in his previous Affidavits and Answers to W’s Questionnaires, but what he presently said also flies in the face of his Counsel’s Opening Submissions, in which Ms Moir submitted that the majority of the family assets are in the form of savings amassed solely by H during the course of the marriage from his income as a teacher.

14. It means that either H did not spend as much as he said, he earned more than what he said, or it was a bit of both of the two scenarios.  W did not query H’s claim on the expenses.  W’s contention is that H would do part-time tutorial classes in the evening on weekdays and Saturdays which H denied.  H’s Japanese working visa does not allow him to do moonlighting.  At the same time, it is his testimony that at least once he worked part-time as requested by his boss in Japan.  It seems that his visa’s restriction on employment did not always prevent him from taking up side line job.  After having taken into account all evidence, on balance I prefer W’s case to that of H in this respect.

15. To her memory, W said, the family savings as at 2007 was approximately in the region from JPY25,000,000 to JPY30,000,000/ AUD250,000 to AUD300,000.  There is a huge disparity between what W contended the family savings ‘should be’ and what the financial statements show them to be.  W attempted to link this to alleged hidden assets of H.  W has raised Requests for Further and Better Particulars.  I have read her copious Requests and H’s Answers to them.  In my view, by and large the transfers to which W referred in the Requests have been accounted for by H.  H transferred money around his accounts to avoid paying charges for account inactivity, or for failing to maintain a particular balance.  I agree with Ms Moir that it is by no means uncommon.  On the other hand, W has been unable to produce any credible proof in support of her assertion that H has hidden assets.  Even assuming that H would do part-time job in Japan, I am not persuaded by W’s assertion that the family savings as at 2007 was as much as AUD250,000 to AUD300,000.  It is inconceivable that H could have saved that kind of money on his earning capacity.  After having carefully considered, I accept H’s case that the family savings as at 2007 was AUD123,000, as evidenced by the bank statements.

16. For the time the parties stayed in Australia, H said he had worked for two and a half years on and off as a contract teacher.  His weekly income would vary from approximately HKD2,000 to HKD10,500.  He would receive very little during school holidays but would use the opportunity to travel.  For the last year in Australia, H was paid for two and half days’ work a week plus any extra shifts he could pick up when teachers could not make it to school.  H said his yearly gross income was about AUD40,000 to AUD60,000 minus 20 - 30% taxes.

17. H produced a letter of the NSW Department of Education and Communities dated 29 October 2013 that shows his yearly income ranging from AUD40,000 to AUD60,000 during 2007 to 2010.  His total income for 2007 to 2010 was AUD145,799.

18. H said the yearly family expenses were about AUD59,097.  The details of which are as follows:-

Rent	AUD   160
Household expenses	100
Electricity	130
Gas	65
Internet	60
Home phone + calls	60
Mobile phone	30
Meals out of home	500
Meals at home	1,000
Bus for the Respondent’s English lessons	80
Clothing	216
Personal grooming	144
Entertainment/presents	216
Pocket money	600
Contribution to parents	173
Automobile fuel	320
Medical	50
TOTAL SUM PER MONTH	AUD  3,904

Yearly expenses included:-

Car service check quarterly	AUD150x4 = 600
Car registration	320
Car pink slip ok	35
Car third party insurance	297
Car full insurance	267
Car tyres	600
Boat registration	65
Boat trailer registration	65
Respondent’s travels to China	5,000
Petitioner’s travelling and Casino visits	5,000
TOTAL	AUD  12,249

Yearly total AUD12,249 + monthly total AUD46,848 (AUD3,904 x 12) = AUD59,097.

19. H’s claim on rental is supported by a letter of NSW Government Teacher Housing dated 22 July 2014 that shows H paid AUD40.5 per week for rent i.e. about AUD160 per month.  He produced a bill that shows electricity from 18 June 2010 to 25 August 2010 were AUD255.26, and the balance of the last bill was AUD270.84.  There is also a letter dated 8 August 2014 from a gas station in the neighbourhood certifying that H fuelled his car up at a cost of AUD60 – 80 at their business site on a weekly basis.  Apart from the above, both parties have been unable to produce any documentary proof in support of their respective cases about the family expenses in Australia.

20. W did not take issue with H’s income in Australia, but she contended H had over-inflated the family expenses. She said during the period the parties lived in Australia the living standard was low.  In her Affirmations, she said the parties spent no more than AUD700 per month on food, AUD120 per month on rental, AUD140 per month on electricity and Wi-Fi network.  The water in their lived area was free of charge so they did not have to pay for it.  During her examination-in-chief, she increased her estimate about the expenses on food to AUD800 per month, decreased the rental to AUD100 per month and said the parties’ monthly expenses on meals out of home were no more than AUD400.  She also remarked that actually H’s father paid for the family car’s fuel.  W said for the period between July 2007 and July 2010 in Australia, the family savings had been accumulated to more than AUD450,000.

21. H’s claim that he was running at a deficit budget does not live up with the fact that he managed to amass savings from 2007 to 2010.  H under his name lodged a time deposit in the sum of AUD58,092.99 with Westpac in 2010.  Most likely, as suggested by W, he has over-inflated his expenses in Australia.  At the same time, even if H had saved every penny he made in Australia, H would have had to have saved more than AUD300,000 to make the figure of H’s savings soar to AUD450,000.  The likelihood of that is almost none.  H’s total income for 4 years in Australia as proved by the said letter dated 29 October 2013 was only AUD145,799.

22. H said his savings as of August 2010 was AUD253,001, as shown by his bank statements:-

Westpac Integrated Account	Date	Amount AUD
E saver	August 2010	10
Term Deposit 135205	October 2010	190,552
Term Deposit 146182	August 2010	58,092
Bonus Saver	August 2010	560
Choice Saver	August 2010	3,787
	TOTAL	253,001

So between 2007 and 2010, H managed to keep around AUD253,000 – 123,000 = AUD130,000, which included the interest earned from fixed term deposits.  Admitting there is no evidence from the parties as to how much interest was earned, except that there is a Term Deposit Renewal Advice showing the interest rate for the fixed term from 17 August 2012 to 17 November 2012 being 4.5% p.a. [B/84], it should be reckonable that on H’s case, he saved no less than 40% to 70% of his total income for the time.  I take the view that, supporting two adults, H could not possibly have saved much more than what he said he did. The upshot being although I consider H has bloated up his claim on expenses, I accept his savings as of August 2010 was about AUD253,000.

23. In August 2010, the parties moved to Hong Kong. H  worked as an English teacher under the NET program on a fixed term contract from August 2010 to August 2014.  He earned an average of HKD60,309 a month, which included a basic salary of HKD43,450 and housing allowance of HKD16,859 per month.  On 10 July 2014, H signed a new contract with his employer to cover the period from 16 August 2014 to 15 August 2016 in which he will earn HKD47,290 a month plus housing allowance (which remains the same).  He is entitled to a gratuity in the sum of 15% of his basic salary, payable upon the successful completion of each contract.  It is accepted that H has made totally HKD3,327,628 for August 2010 to August 2014. 

24. For the time from September 2010 to February 2014, according to H, his monthly expenses were HKD35,118, but W considered that his reasonable monthly expenses should be below HKD25,000.  The details are as follows:-

General
Item	H’s claim	W’s estimate
Rent	9,800	Agreed
Utilities (electricity, gas, rates, telephone & water)	1,500	500
Food	4,000	1,000
Household expenses	1,000	500
Total monthly household expenses	HKD16,300	11,800

Personal
Item	H’s claim	W’s estimate
Meals out of home	4,000	3,500
Transport	500	Agreed
Clothing / Shoes	800	Agreed
Personal grooming (including haircut and cosmetics)	200	Agreed
Entertainment / Presents	2,000	500
Holiday	500	Agreed
Medical / Dental	200	Agreed
Tax	10,288	5,500 (excluding provisional tax)
Insurance premium	330	Agreed
Total monthly personal expenses	HKD18,818	12,030
Grand total	HKD35,118	23,830

25. It is undisputed that H moved out in December 2013 and now pays HKD10,400 a month for his own accommodation.  H also started paying W interim maintenance of HKD15,000 a month from 1 March 2014.

26. In accordance with W’s case, H could save up to HKD35,000 per month from September 2010 to December 2014, HKD25,000 per month from January to February 2014, and up to HKD10,000 a month from March 2014 to August 2014.  Coupling with the gratuity, the total is more than HKD2 million.  H currently has savings of AUD275,000 in his Australian Westpac banks accounts, a further AUD30,000 being held in Australia on his behalf by his mother and currently around HKD20,000 in his Hong Kong bank account.  When H left Australia for Hong Kong in 2010, he had AUD253,000. Thus, he has saved (AUD275,000 + AUD30,000 + HKD20,000) – AUD253,000 = AUD54,954 x 6.77 = HKD372,040, which is less than ¼ of what W contended he had, since he went to Hong Kong.

27. It is undisputed H earned fixed income in Hong Kong.  The contention between the parties is what H’s expenses were.  Neither H nor W produced any documentary proof of his expenses in Hong Kong.  In H’s case, he said it is because W had not raised any query about his expenses in Hong Kong until the first day of trial.  For W’s part, she has failed to give a satisfactory explanation why she did not raise her query about H’s expenses in Hong Kong in her previous Requests for Further and Better Particulars.  In fact, W did not make her query on H’s expenses known to H until the exchange of Counsel’s Opening Submissions.  However, W was unable to substantiate her challenge with anything but bare assertions.  Ms Moir urged the Court to adopt a robust approach in the assessment of H’s expenses in Hong Kong in the circumstance.  And I so do.  It appears from the Assessment Demands for H’s salaries tax that excluding provisional tax, H’s tax liability was about HKD66,000 a year.  Duly, I agree with W that H’s expenses on tax should be only HKD5,500, instead of HKD10,288 per month.  Other than tax liability, taking an overview of H’s case, it seems that H’s expenses as claimed by him are reasonable.  I accept his expenses as per his Form E were HKD30,000 per month.

28. It is noted that H has had other expenses on top of those set out in his Form E.  H stated in his Affidavit dated 12 December 2013 [B/510] and testified that he used to give W HKD4,000 per month for her other expenses.  W stated in her Affirmation dated 20 December 2013 [B/516] and testified H gave her HKD6,000 every month as pocket money for the food (mostly her lunch), cosmetics, clothing, hairdressing or other negligible expenses up to May 2012.  In light of of W’s testimony (see the below paragraph [52]) and my finding in the below paragraph [53], I hold that H used to give W HKD6,000 per month.  W said H had stopped giving her money since June 2012 which H denied.  She made an application for maintenance pending suit (hereinafter called “MPS”) on 13 November 2013.  H did not deny W’s allegation that he has cut her off financially since June 2012 in his opposing Affidavits filed for the purpose of W’s application for MPS.  W’s MPS application was heard by the Court on 14 February 2014.  Despite that in his narrative Affidavit dated 17 June 2014, H stated he continued to supporting W and providing her with all the necessities to live comfortably until December 2013, I accept W’s contention that it would be unreasonable that H did not deny W’s allegation that he had cut her off financially since June 2012 in his previous Affidavits, had H continued giving W money to cover her living costs until December 2013. Accordingly, I find that H stopped paying W money in June 2012.  The total amount for HKD6,000 per month from October 2010 up to June 2012, i.e. HKD6,000 x 21 months is HKD126,000.  It is accepted by the parties H also paid W’s expenses for her travelling to Shanghai, the purchase of a laptop, and her medical expenses (HKD20,000).  For the additional expenses, I adopt a ballpark figure of HKD50,000.

29. After the parties moved to Hong Kong, they resided in a two-bedroom apartment, sleeping in separate bedrooms.  H said because the parties continued to live in the same accommodation, he found it uncomfortable to be there over the weekend as W does not often leave.  As such he has developed a habit of staying in hotels most Fridays and every Saturday to enjoy his own space.  H paid up to HKD1,500 per night on Friday and Saturday nights in totals in Central or Wan Chai.  It seems that H has been so doing for the period from about October 2010 until December 2013 when H moved out.  For H’s hotel expenses, I adopt a ballpark figure of HKD1,500 x 52 weeks x 3 years = HKD234,000.

30. H gave AUD4,602.49 to his mother for ongoing maintenance expenses for his car that is kept at his mother’s house .

31. H spent AUD6,000 on a trip to Japan in December 2012.

32. In summary, his total expenses in Hong Kong were:-

(i)  From September 2010 to December 2014: HKD30,000 per month x 40 months = HKD1,200,000 (see above paragraph 27)

(ii)  From January to February 2014: (HKD30,000 + 10,400) per month x 2 months = HKD80,800 (see above paragraph 25)

(iii)  From March to October 2014: (HKD30,000 + 10,400 + 15,000) per month x 8 months = HKD443,200 (see above paragraph 25)

(iv)  HKD126,000 + 50,000 = HKD176,000 (see above paragraph 28)

(v)  HKD234,000 (see above paragraph 29)

(vi)  AUD4,602.49 x 6.77 = HKD31,158 (see above paragraph 30)

(vii)  AUD6,000 x 6.77 = HKD40,620 (see above paragraph 31)

HKD1,200,000 + 80,800 + 443,200 + 176,000 + 234,000 + 31,158 + 40,620 = HKD2,205,778.

33. The figure of AUD6.77 to the HKD has been adopted in this Judgment, representing the exchange rate as of 15 October 2014.

34. Making a basic calculation, the difference between income and expenses i.e. H’s potential savings during the past four years are HKD3,327,628 – 2,205,778 = HKD1,121,850.

35. As we have seen above, H’s actual savings are HKD372,040.  How does H account for the shortfall of HKD749,810?

36. H’s legal costs up to July 2014 were HKD238,750.  This does not take into account the three days of trial in October 2014.

37. H withdrew the sums of AUD10,000, AUD9,000 and AUD20,000 from his eSave account on 20 July 2011, 3 August 2011 and 15 August 2011 respectively, that is AUD39,000 x 6.77 = HKD264,030.  The payments were for contributions to his elderly parents’ remodel of their house in Australia.  H agreed that the said sums should be added back to the family pot. 

38. HKD238,750 + 264,030 = HKD502,780.  There is still a shortfall of HKD247,030.

39. H enjoys gambling and has played poker and blackjack all his life in various casinos throughout Australia, the Philippines, Korea, America and Macau.  In his Affidavit dated 26 August 2013, H admitted he has spent significant sums over the last years in Hong Kong on his hobby however this is mostly from income and not capital.  I am not persuaded by what H said in cross-examination that he has been all in all breaking even on gambling for the time in Hong Kong.  It seems that probably H has lost the said HKD247,030 in gambling.

40. It is obvious that the said sums of HKD238,750 + 264,030 + 247,030 = HKD749,810 should be added back to the family pot for sharing.

Identifying the parties’ assets

41. H currently has savings of around AUD275,000 in his Australian Westpac bank accounts and AUD30,000 being held on his behalf by his mother.  In Hong Kong, his savings in HSBC are around HKD20,000.  He has a small holding of Crown Casino shares, and a superannuation fund in Australia.

42. H has no liabilities.

43. W now has HKD5,516 in cash and savings of AUD64,390.  She claimed 3/5 of the said AUD64,390 is being held on trust for her sister for investment.  H disagreed.

44. W produced an Application for Funds Transfer Form [B/280] in an attempt to show that about 3/5 of the money was sourced from her sister.  The transfer amount was AUD30,972.55.  As was noted by this Court, the document states that the money is for ‘living expenses’.  W said in her evidence-in-chief that the Chinese banks would ask customers to put down ‘living expenses’ even if the money is for investment. As was noted in cross-examination, W’s sister did not give evidence and there is no way to substantiate this.  W contended that the money was deposited into H’s account rather than waiting a few days for W to open an Australia bank account because of the attractive exchange rate.  That the money was transferred at exactly the time the parties moved to Australia reinforces H’s contention that this money was in fact W’s savings and as such, should not be withheld from the family pot.

45. W claimed to have borrowed a total sum of RMB200,000 and HKD171,000 from her younger brother (including a total sum of RM100,000 from her younger brother during the past few years for her living expenses; a sum of RMB100,000 being the share of her father funeral expenses in 2012; a total sum of HKD51,000 in February 2013; a sum of HKD40,000 in April 2013 and a sum of HKD80,000 in September 2013).  She produced copy of remittance advices showing that a sum of HKD51,000, HKD40,000 and HKD80,000 respectively had been remitted into her account.

46. W said the borrowings supplemented her living expenses in Shanghai and Hong Kong.  When asked if the brother expected the money back, W testified “he didn’t say ‘when are you going to give it back’, but I would have had to pay him back”.  There are no receipts for any of the sums excluding the remittances above.  I agree with H’s submission that rather than being hard debts, these are ‘soft’ loans and should not be included in W’s liabilities.

47. It is H’s belief that W has hidden asset in Shanghai, but he is unable to prove this with anything but bare assertions.

48. In summary, I consider the family assets include:-

(i)	H’s assets
	Item
	AUD savings	AUD275,000
	AUD savings held by H’s mother	AUD30,000
	HSBC savings	HKD20,000
	Crown casino shares	AUD1,821
	Superannuation	AUD12,676
	Added-back	HKD749,810
	Sub-total	AUD319,497 HKD769,810

(ii)	W’s assets
	Item
	Westpac savings	AUD64,390
	HSBC savings	HKD5,516

H’s financial needs

49. H signed a new contract with his employer to cover the period from 16 August 2014 – 15 August 2016.

50. I consider H’s reasonable monthly expenses are HKD30,000.  This figure does not take into account the rent of HKD10,400 he has been paying for his own accommodation since December 2013 and the MPS has been paying since March 2014.

W’s financial needs

51. W listed monthly expenses of HKD18,400 on her Form E.  On the face of it, W’s daily living expenses would be higher than H’s, once H’s tax liability and accommodation is taken out of the equation.

52. During cross-examination, W stated that the figure of her expenses i.e. HKD18,400 she gave in her Form E is not correct.  Having been warned by the Court of her right not to answer questions for fear of incrimination herself, W refused to respond when she was asked about the discrepancy.  An inference can be drawn that W deliberately over-inflated her Form E expenses in order to maximise her MPS payments.  Some of the questions and answers are as follows (see page 72 - 74 of the Transcript):

Q.	So if we deduct from the 35,118 the rent and the tax, then the like-for-like figures in terms of what you are both spending every month on essentials, for the husband that would be $15,030 a month.  Okay, and that compares to 18,400 a month, which is your expenses.
A.	If you’re asking me about this Form E that I’ve filled in, it’s very difficult for me to answer you at the moment.
Q.	Why would that be?
A.	Please don’t talk about this 18,400 on this From E filled in by me. I cannot answer you. What I can tell you is that what I have got was $6,000 for household expenses.
Q.	All right.  Well, them, why did you put down that your expenses were 18,400 every month?
A.	That’s why I said I cannot answer this question of yours.
Q.	Did you …
A.	That is, that’s just the same as, like, the first time when I received this – how do you say?  For both parties’, like, separation for two years.  In the end there’s what this – two years’ separation for these proceedings.  But the fact …
INTERPRETER: Sorry
A.	But, factually, it was not two years’ separation…
Q.	Well, that’s all very interesting, but I’m asking you about your Form E.
A.	I think it’s the same question. I think it’s the same question.
Q.	Can you just answer the question, please?  It would be a lot faster.
A.	I’ve told you that – I’ve told you that I could not answer you.  That was an answer in itself.
Q.	Well. That’s slightly ambiguous.  All I’m asking is, one, did you sign this Form E in February 2013?
A.	(Answer not interpreted)
Q.	Is that your signature?
A.	I signed …
Q.	Yes
A.	I signed this, but it’s the same for this two-year, two-year thing.  Whether I agreed, I also signed.
Q.	So…
A.	(Answer not interpreted)
Q.	…Madam, are you saying that you just sign things without actually reading them?
A.	You are wrong.  I admitted that I have read it and I signed it.
Q.	And are these figures – you were asked by your counsel if this represented a true account of what was actually stated at the time.  So are you now saying these figures are not accurate?
A.	I have said that I cannot answer your question.
Q.	Well. Could you please tell me why you can’t answer my question?
A.	Regarding the figures, just like what I’ve answered earlier on, it is the same – it’s exactly the same as whether it’s a two-year separation.
Q.	I’m sorry.  It just doesn’t make any sense.
A.	(Answer not interpreted)
…
Court	Now, witness.  Please answer the question earlier asked by counsel…
A.	Then let’s do it this way. You – now, let’s put it this way.  You change the figure of 18,400 to $6,000.
…
Court	… making a false declaration is a criminal – is a crime and in Hong Kong you are not obliged to answer or to give any information which may incriminate yourself in a criminal offence…
Q.	In your Form E, when you were claiming maintenance from the court, you stated that you had total monthly expenses of $18,400.  You are now saying the figure should only be $6,000.  So why did you put a figure of $18,400?
A.	As your Honour has said what you did just now, what I would like to say is: I have told my lawyer everything about the condition and then this document came out.  So it’s now – it’s very difficult for me to say and I do not want to put the blame on the lawyer.

53. Still, it is necessary to put an estimate on what W’s expenses are.  On her Affirmation, W has stated that throughout the marriage, W lived frugally.  On this basis, I am prepared to hold that, excluding rent and utilities, W’s monthly expenses should be in the region of HKD6,000, exclusive of legal fees.

54. W’s credibility has been compromised by her refusal to answer any questions about her expenses.  This should be borne in mind when the Court comes to consider the copious bare assertions she made in respect of H’s savings throughout their marriage and her ‘future plan’ to return to Australia.

55. W has submitted a highly dubious claim for living expenses of AUD6,000 a month based on the scenario of her moving to Sydney to study for seven years, first learning English and secondly training to be a nurse.

56. W said she planned to reside in Sydney of Australia after these proceedings in Hong Kong.  She is a permanent resident of Australia.  She prefers Sydney to Shanghai because she likes the environment of multicultural society of Australia and there are ‘perfect’ systems of the adult education in Australia.  She said she plans to go back to school for further improvement of her English in Australia.  It would take 3 years to complete the English course.  After the English course she plans to spend 4 years to complete a Nursing degree.  She plans to look for part-time jobs in Australia from time to time.  She said her expenses will be about AUD6,146 per month for the 1^st to 3^rd year and about AUD6,112 per month for the 4^th to 7^th year in Australia. She can earn a living as a Nurse in Australia and can stand on her own feet after couple of years later.

57. The future expenses are premised on W moving to Sydney, Australia to study English for 3 years and then undertake a nursing course for 4 years.  No documentation showing any applications to or acceptances by educational institution in this respect has been provided.  As could be seen by W’s cross-examination, she is not even able to provide the most basic information as to what it entails to train as a nurse in Sydney, the time and costs involved, the universities offering diplomas, how long a diploma would be and what the deadlines are for applying.  It was patently clear W has not done her homework or put together a basic plan.  I regard W in fact has no intention of returning to Australia, where she has no close friends or family.

58. W clearly has an earning capacity and should have utilized her language capabilities to find work a long time ago.

59. W has worked as a nurse in China for ten years.  She has a degree from Kyorin University in Japan.  She is fluent in Japanese.  According to W, the last time she worked was in 2007, having been a part-time office assistant in Japan between September 2006 – April 2007 earning around HKD12,000 a month.  In 2006, H paid AUD7,000 for W to do an aromatherapy course. 

60. In Australia, W enrolled in a government-funded English course, which is permitted to new immigrants.  H suggested to W that when her English had improved, he would enrol her in a basic one-year nursing course at a nearby college.  Two weeks after H brought up the discussion about the nursing course, W quitted her English classes, never to apply for a job, nor continue with her studies.

61. W’s English capabilities were lacking.  However, she managed to communicate sufficiently with H’s parents to help them with their delivery business.  It should also be noted that W has been married to a native English speaker for 9 years, lived in Australia for 3 years where she took English classes ‘on and off’.  During her evidence, it was clear she has basic understanding of English.

62. Moreover, W has had ample time to study English over the past four years, if not before.  Her claim that she needs three years to get her English up to standard and that H should pay for this is derisory.  As H testified, it is more likely than not that W, who will no longer be sponsored by H as a dependent, will – and should – return to Shanghai to be with her family.

63. The authorities recognise that earning capacity is a resource and that it is wrong to perpetuate a situation where one partner provides the other with a lifetime or long-term meal ticket.

64. W should already have made efforts to re-establish herself in the workforce and it is not appropriate that she should expect periodical payments.  With her existing qualifications, she could work as a Japanese translator, office assistant or in aromatherapy-related field.  If W were to utilize her skills, I believe she could earn a salary sufficient for her to pay her own way.

65. I am fully aware that W is currently not earning a salary, but the Court will look at a spouse’s ability and qualification to assess his or her earning capacity and will not confine it to current earnings.  The Court would also expect a wife who is not encumbered by pre-school age children to take steps to acquire or increase an earning capacity so she would not be financially dependent on her former husband in perpetuity: W v W[1].

66. This is clearly a case for clean break.

Applying the sharing principle

67. This is a 10-year marriage with no children.  The parties are in their forties.  The majority of the assets are in the form of savings amassed by H during the course of the marriage from his income as a teacher.  At the time when the parties lived in Australia, W had to take care of the family.  She also helped in H’s father’s delivery business when the parties lived in Australia.

68. Both parties agree to the yardstick of equality.  I accept that there is no good reason for a departure from equality.

Deciding the overall outcome

69. The family assets available for sharing are:-

  AUD319,497 + AUD64,390 = AUD383,887

  HKD769,810 + HKD5,516 = HKD775,326

70. Allowing W to keep her AUD and HKD savings, in full and final settlement of W’s claim for ancillary reliefs, H should pay W the following sums or their equivalent:-

71. It is my finding that W’s monthly expenses is in the region of HKD6,000, excluding rent and utilities, and H has stopped paying W any money to cover her costs of living since June 2012 until March 2014.  Thereafter, H started to pay W HKD15,000 per month.  To make up any under/ over provision, I regard it is fair and just that H shall pay W the sum of HKD6,000 per month x 19 months (from June 2012 to February 2014) – (HKD15,000 – 6,000) x 7 months (from March to October 2014) = HKD51,000.

72. It is ordered that H shall pay W the said sums of AUD127,553.5, HKD382,147 and HKD51,000, or the equivalent, upon making of the decree absolute.  The order for MPS dated 25 February 2014 shall be discharged as soon as the abovementioned sums are paid.

73. There shall be section 18 declaration.

Costs

74. Broadly speaking, notwithstanding that the reliefs awarded by this Court are nowhere near her open offer, W is the successful party.  H reiterates his submission made at the end of the second day that regardless of the outcome of this litigation, he should be entitled to the costs of the first and second day of trial.  That W’s case was not in shape by the time of opening is not something H should be burdened by. For all that, I consider about half day has been wasted.  I consider W shall pay H half refresher and fees for 2.5 hours of the attending solicitor in any event, to be taxed if not agreed, to compensate H for the thrown away costs. Subject to aforesaid, it is ordered nisi that H shall pay W’s costs of the application, with certificate for counsel, to be taxed, if not agreed.  The order nisi becomes absolute 14 days after the order is made unless a party has applied to the court for varying the order.