LNYK (formerly known as NSMC) v. LCMB

FCMC 11296/2020

[2021] HKFC 200

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 11296 OF 2020

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

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1.  This is a hearing of the Petitioner wife (“the wife”)’s application for maintenance pending suit (“MPS”) in the monthly sum of $35,500 against the Respondent husband (“the husband”).

2.  The parties were married in 1999 and separated in 2020.  This was a long marriage of 21 years.

3.  The parties have 2 children.  The elder daughter is aged 20 and residing with the wife.  The son is now aged 18 and should be living independently. 

4.  There is criminal allegation by the daughter against the husband causing the wife and daughter moving out of the former matrimonial home in December 2020.  Since then, the husband has stopped all monthly maintenance payment (which was $33,500, being $15,500 for rent and $18,000 for living expenses) towards the wife and daughter.

5.  The wife is now aged 55 and is a consultant working for a family company earning a monthly sum of Macau MOP$15,000 (equivalent to about HK$14,521).  In her Form E, she stated her personal assets were HK$7,303,523 including a property in Macau (HK$4,621,563); bank deposits (HK$777,554); HSBC shares (HK$416,000); insurance policy value (HK$319,680); motor vehicle (HK$100,000); and 8 niches (HK$1,080,000). However, as disclosed by the husband, the parties also held a joint bank account at Hang Seng Bank (Account no. 024-766-518-668) (“the HSB Joint Account”) with a deposit of HK$2,758,970.53 as at 9 March 2021.  If half of that deposit counts towards the assets of the wife, her total assets should amount to about HK$8,683,008 (HK$7,303,523 + HK$1,379,485), out of which about HK$2,100,000 is liquid cash in various bank accounts (HK$777,554 + HK$1,379,485).

6.  It is the husband’s case that the wife has not made full and frank disclosure of her financial resources by pointing at some of the bigger bank transactions and her acquisition of shares in December 2020.  The wife explained that those transactions were made on behalf of the company after which she would be reimbursed.  The explanation may or may not be true but this is certainly not the appropriate time to make a determination thereon. 

7.  As to the acquisition of shares in the sum of $655,740 in December 2020 (in the wife’s Hang Seng Bank account no. 225-48623-888), I am not satisfied that it must be regarded as unequivocal evidence of material non-disclosure on the part of the wife. 

8.  There is also allegation on the wife understating her income at MOP$15,000.  However, I do not see any clear evidence in that regard.  In short, I do not think that the various allegations on material non-disclosure could be made out without a full investigation at trial.

9.  As could be seen from her Form E, the wife’s monthly expenses amount to HK$38,950 (Bundle p.68-69).   But she said that there is likely to be an increase of the daughter’s university tuition fee in September 2021 (for an increase of about HK$60,000 per annum). Moreover, I also note that she has not included any provision for legal costs in her monthly budget.

10.  I note from counsel’s submissions that the husband is challenging the reasonableness of the wife’s expenses.  For example, the husband submitted that the wife’s claim for food at HK$11,200 as being extravagant ($3,000 for food, $5,000 for dining out and $3,200 for the daughter’s lunch and pocket money).   However, if one should look at the husband’s Form E (Bundle p.395), his claim for food was $11,000 ($5,000 for food and $6,000 for dining out).  He also said he was paying $5,000 as pocket money and I can only assume that it was for the younger son.  All the husband’s monthly expenses added up to HK$88,088 (Bundle p.396), as compared to the wife’s claim of HK$38,950.   Under these circumstances, I do not think that there is any justification in saying that the wife’ expenses were extravagant.

11.  As far as the financial circumstances of the husband are concerned, I note from his Form E (Bundle 380-402) that he was working as a Regional Sales Manager with a monthly income of HK$96,392.72.  After taking into account of his claim of a debt of HK$1,000,000 for legal expenses being owed to one of his siblings, his total net personal assets were HK$6,996,951 (Bundle p.392), out of which HK$3,330,300 were deposited in his various bank accounts (Bundle p.385-6).  However, it is to be noted that those bank accounts have already included the HSB Joint Account in which the husband only entitles to half share as a joint owner.  If one should take that into account, his total bank account interests should amount to about HK$1,950,000 (HK$3,330,300 – HK$1,379,485) only.

12.  The wife now claims for MPS in the monthly sum of HK$35,500, being the monthly maintenance the husband used to pay at HK$33,500 (which the husband does not deny) plus HK$2,000 being the pocket money the husband used to pay the daughter before their moving out.

13.  At the call over hearing on 25 June 2021, I have granted an interim MPS Order that a monthly sum of HK$15,000 should be paid out of the parties’ HSB Joint Account towards the interim maintenance of the daughter and HK$10,000 per month by the husband towards the MPS of the wife.

14.  In the determination of the wife’s MPS application, I bear in mind that a broad brush approach is to be adopted.  It would not be a fruitful exercise to go into a detailed adjudication on the parties’ respective finances at this interim stage.  If any preliminary assumption is found to be incorrect, proper adjustment in the final ancillary relief order can always be made. 

15.  In considering the wife and daughter’s interim reasonable needs, and also the husband’s financial circumstances, in particular, his ability to pay, I am of the view that the interim maintenance for the daughter as ordered in the interim MPS Order (i.e. HK$15,000 from the HSB Joint Account) should continue.  As to the MPS for the wife, I would set it at HK$15,000 as well.  I came to this conclusion mainly based on the facts that the wife, though in need of interim maintenance for herself and daughter, was in possession of liquid assets in the form of bank deposits in the sum of about HK$2,100,000, which was even slightly better than that of the husband at HK$1,950,000.  But since the monthly income of the husband was much higher than that of the wife (HK$96,000 as against HK$ 14,521), coupled with the fact that he used to pay HK$33,500 towards the maintenance of the family before separation, I think it is fair for him to contribute a monthly sum of HK$15,000 from his income towards the MPS of the wife.  As for the interim maintenance of the daughter, it should be borne by the parties equally by payment out from the HSB Joint Account.

16.  With these payments, the wife would get a total monthly sum of HK$30,000 towards her MPS and the daughter’s interim maintenance.  By adding her own income of about HK$14,500, that would give her a total interim income of about HK$45,000 per month. These, together with her other liquid assets, should afford them a reasonable living standard in the interim period, pending the final determination of the ancillary relief claims.

17.  On the other hand, the husband was only required to pay a monthly sum of HK$15,000 from his own income towards the wife’s MPS whilst the daughter’ interim maintenance would be shared by the parties in the form of payment out from the parties’ HSB Joint Account. In such circumstances, even if the court should take into account the husband’s financial responsibility towards the son and his need for legal expenses in defending the present matrimonial proceedings and the criminal proceedings, I am confident that he would be able to do so without too much hardship.  After all, he used to pay HK$33,500 towards the family expenses, and the present total payments (MPS and interim maintenance) is even less than that amount.   

18.  Based on the above discussion, I would grant the following orders:

(1)     The parties should continue to withdraw a monthly sum of HK$15,000 from the HSB Joint Account on the 1^st day of every month starting from 1 November 2021 towards the interim maintenance of the daughter until further order of the court.

(2)     The husband should pay a monthly sum of HK$15,000 to the wife as MPS on 1^st day of every month starting from 1 November 2021 until further order of the court or the granting of decree absolute, whichever is earlier.

19.  As to costs, the wife has to come to court before she could get the above orders and therefore, prima facie, she should also get the costs of this application.  Although the final MPS order is not as much as she has requested, I am of the view that she should still be regarded as the winner of the application.  Therefore, the wife should be given the costs of the MPS application, including all costs reserved. This will be in the form of a costs order nisi to be made absolute after the expiry of 14 days from the handing down of this judgment.  After the costs order being made absolute, the wife should lodge and serve a statement of costs (restricted to 1-page of A4 size paper, double line spacing, and in font 14) within 7 days for the court’s summary assessment.  The husband is entitled to lodge and serve a list of objections (restricted to 1-page of A4 size paper, double line spacing, and in font 14) within 7 days thereafter for the court’s consideration.