NEKY v. WKC

FCMC 2075 /2022

[2025] HKFC 178

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 2075 OF 2022

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BETWEEN

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JUDGMENT

( Ancillary relief : cohabitation; marital living standard and needs; financial assistance from third parties;
inheritance prospect; clean break; adjustment for maintenance made between trial and judgment; child maintenance )

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1.  In this trial, I am tasked to determine 2 matters:

(1) the ancillary relief claims of the respondent (“wife”) for herself and the daughter of the family;

(2) the wife’s summons filed on 9 August 2024 for, among other things, her maintenance pending suit ($42,400 per month) and the interim maintenance for the daughter ($37,307 per month), both to be back-dated to a date as deemed fit by the court (“2^nd MPS Summons”). The 2^nd MPS Summons was filed after the ancillary relief matters were already fixed for trial.

2.  The petitioner (“husband”) does not have any claim for ancillary relief for himself.

A. Background

3.  The husband was born in 1976 and is now 49 years old. He comes from an educated and well-off family. His late father (“Grandfather”) was a solicitor and a partner of a solicitors’ firm. The maiden family of his mother (“Grandmother”) used to own a free-standing house in Kowloon Tong. The husband went to study in the USA and graduated there in 1999 with a Bachelor Degree in Fine Arts and Architecture, after which he became (and still is) a US registered architect. He worked in the USA for about 10 years, focusing on building, furniture and interior design. Upon his return to Hong Kong in 2009, he worked on and off at various architecture firms until he was made redundant in 2020.

4.  The wife was born in 1986 and is now 39 years old. Her father runs a business in metal and raw materials, with a Hong Kong office and a PRC factory. Her mother is a housewife. The wife obtained a diploma in hospitality in Hong Kong, and later got a bachelor’s degree in English for international corporate communication from a university in the UK. Upon graduation, the wife worked mainly in the banking industry.

5.  The parties came to know each other in a social gathering in 2011. They got married in June 2015. There is a dispute as to whether they had seamlessly cohabited since 2012 until their marriage in 2015, which will be discussed later in this judgment.

6.  In January 2016, they bought their matrimonial home at Maiden Court, Cloud View Road (“Maiden Court property”) at $13.1 million. The Maiden Court property, with its car park space, was registered in the sole name of the husband. The Grandfather paid $7 million for its downpayment, and a home mortgage was obtained by the husband with the Bank of China.

7.  The parties lived in the Maiden Court property for a few years. In March 2019, they moved to a rented property at Jardine’s Lookout (“Jardine’s Lookout property”) at monthly rentals of $32,500 to $34,500. The Maiden Court property was put on sale, though it was rented out for a brief period from April 2020 to September 2021 at around $40,000-$41,000 per month. The husband took all rental income.

8.  A few months after the Maiden Court property was purchased, their daughter was born in May 2016. She is now 9 years old. The parties reached an agreement in 2023 that they shall have joint custody of the daughter, while the wife has her care and control. The question of access was transferred to my court for case management hearing. They settled their dispute on access during a children dispute resolution (CDR) hearing held on 17 October 2023 before me. Briefly, the husband has defined access to the daughter, including weekly day access and alternate weekend staying access.

9.  It is fair to say that since their marriage, the husband was the one who paid for the majority, if not all, of the expenses of the family and the daughter. He continued to do so even during the time when the wife was working, and even after he was made redundant in September 2020.

10.  While the wife considers their marriage life was uneventful, save and except some occasional arguments, the husband does not think so. According to his own affidavit evidence[1], their relationship started to deteriorate “a few years into the marriage” due to the wife’s attitude towards him, his parents and the maids. He describes the wife as “self-centred, bad temper and controlling”, and deposes that he “had been unhappy for a long time”. He views that there was already marital discord since April 2021[2], and that their relationship had a sharp downturn in early 2022, soon after the health of the Grandfather deteriorated.

11.  The following sequence of events that took place since April 2021 is worth-noting:

(1) The husband had been paying the wife cash allowances of $20,000-$25,000 per month since she stopped working in 2018 and despite that he was made redundant in September 2020. Such cash allowances stopped since April 2021;

(2) At least in around January 2022, the husband, without the knowledge of the wife, sought legal advice on divorce and paid his solicitors some costs on account;

(3) In the same month of January 2022 (ie on 26 January 2022), he entered into a sale and purchase agreement to sell the Maiden Court property at $17.25 million. It cannot be disputed that the Maiden Court property was then the most substantive asset of the parties. The completion took place on 23 March 2022. At completion, the husband pocketed all the net sale proceeds in the sum of about $13,325,197[3];

(4) About a month after the completion of the sale of the Maiden Court property, the husband filed his petition for divorce on 20 April 2022 (relying on the alleged behaviour of the wife);

(5) Not a word after he filed his petition for divorce, the husband went out with the wife for lunch the next day on 21 April 2022. A few hours later and while at home, the wife was suddenly served with the petition;

(6) In that same evening, the husband cancelled the SCB credit card that was given by him to the wife for her use;

(7) From May 2022 onwards, he cancelled their joint HSBC account, the HSBC supplemental credit card and her membership with the Hong Kong Country Club;

(8) On 2 June 2022, he moved out of the Jardine’s Lookout property to live with the Grandmother at her 3-storey house at Shouson Hill (“Shouson Hill property”);

(9) In August 2022, the wife changed the door lock of the Jardine’s Lookout property, after which the husband could not enter the premises at his free will. He thus stopped paying the rental and expenses of the premises.

12.  While it is not my duty in this trial to re-visit why the marriage of the parties broke down, I accept that the wife must be shocked to have been served with the petition for divorce in the circumstances described aforesaid, which explains why she feels, and thus alleges, that these were the premeditated and calculated acts of the husband to divorce with her.

13.  Under such background, it comes as no surprise that the litigation between the parties has been acrimonious. Although they struggled and managed to settle the child matter in the CDR, there is a wide gulf in their ancillary relief disputes, so much so that they confirmed to me in the case management hearing that they were not amenable to a financial dispute resolution (FDR). As a result, no FDR was held.

14.  It is sad to say that they have paid the price for such acrimonious litigation. Their estimated combined legal costs (custody and ancillary relief altogether) have flared up to about $6,137,739, with $3,255,447 for the husband[4], and $2,882,292 for the wife[5].

B. Interim orders on AR

15.  As said above, the husband stopped paying for the rent and utilities of the Jardine’s Lookout property in August 2022. Hence, on 16 September 2022, the wife took out her first application for maintenance pending suit/interim maintenance. This application was disposed of by way of a consent order made by a deputy judge on 9 November 2022, which contains various undertakings of the husband, such as making a capital advancement of $2 million to the wife, and continuing to settle the rent and utilities of the Jardine’s Lookout property, and the school fees of the daughter (“1^st MPS Order”).

16.  On 27 March 2023, the family court made another order by consent on the accommodation arrangement of the wife and the daughter (“Accommodation Order”), which entails these:

(1) The wife and the daughter shall move out of the Jardine’s Lookout property by 23 March 2023 to another rented property at her choice (which turned out to be a 3-bedroom’s flat in Taikoo Shing);

(2) The husband shall pay her $454,000 to cover the rental deposit, the rent of the next 12 months, moving costs, furniture expenses and agency fee;

(3) Starting from the 13^th month, he shall pay her $28,500 per month as contribution to the rent;

(4) He shall reimburse or pay the utilities of the newly rented flat.

17.  However, on 1 July 2024, the wife moved out of the Taikoo Shing property because the landlord reclaimed the property for his own use. She thus rented another flat at Lei King Wan at a rent of $30,000 per month. The husband refused to pay the new rent or any rental subsidizes for the month of August and September 2024, saying that the wife had not consulted him prior to moving to live in the Lei King Wan property at a higher level of rent and that she could have used the rental deposit of the Taikoo Shing property to pay the new rent.

18.  This triggered the wife to take out the 2^nd MPS Summons. The parties reached a partial settlement of the 2^nd MPS Summons on 22 August 2024 by the husband’s undertakings to make another capital advancement of $800,000 to the wife to cover her household expenses and legal costs (“2^nd MPS Order”). The rest of the 2^nd MPS Summons was adjourned to be tried together with the final ancillary relief trial.

19.  According to a joint table signed by both parties on 14 October 2025, the wife has received from the husband total capital advancements of $3,254,000.[6]

20.  In this trial, Mr Ken Chan, counsel for the husband, confirms that he no longer seeks to reduce the final ancillary relief entitlement of the wife by the amount of such capital advancements. I opine that this is a correct concession to make.

C. Their respective case & open offer

21.  The wife says that she started to cohabit with the husband in 2012 and seamlessly married to him in 2015. The marriage was a long one of about 10 years. She does not accept that a sum of $600,000 transferred by the husband from the Wing Lung Bank accounts to the Grandfather’s personal account was for paying the latter’s medical expenses, and thus insists that this sum should be added back to the pot. She asks that her liabilities of about $752,603, allegedly incurred as a result of the husband’s insufficient financial maintenance, should be paid out of the family pot. According to her, net of her liabilities, she has total assets of about $675,962 only. The total family pot is worth about $11,859,714, of which she should be entitled to 50%.

22.  On top of this, she argues that she has been a full-time mother and will continue to do so. The husband was the main breadwinner during their marriage, and with the generous financial support from his parents, the parties did not have to worry about money and they spent more than their means. Such middle-to-upper class lifestyle should be maintained by the husband for her and the daughter way forward.

23.  Hence, it is her open offer that the husband shall pay her:

(1) A lump sum of $5,253,895 as the equalisation money;

(2) Periodical payment of $60,000 per month as her maintenance for 10 years, which may be reduced to $40,000 per month commencing from the 11^th year (when she plans to start working again);

(3) Periodical maintenance for the daughter in the sum of $57,402, which is an all-inclusive maintenance, as she rejects any payment by the husband by way of undertakings (but in her oral evidence, she accepts that the husband may directly pay for the daughter’s school fees, in-patient medical insurances and extra-tuition fees including Chinese, piano, Putonghua and gymnastics).

24.  On the other hand, the husband does not agree that there was cohabitation that moved seamlessly into their marriage. He takes the view that the marriage was a short one of about 7 years. The shorter the marriage, the lesser the need to replicate the living standard during the marriage, which was, after all, not luxurious.

25.  On the size of the pot, he says that the money in the Wing Lung Bank accounts is the Grandfather’s money. He argues that the various gold coins and watches gifted to him by his great grandfather or the Grandfather, as well his entitlement of $1 million of the estate of the Grandfather, are either pre-marital or post-separation assets that should be excluded from sharing with the wife. However, at the beginning of this trial, he adjusts his stance and is prepared to put everything into the pot for equal sharing. This generous offer, he says, would give the wife sufficient monetary buffer during the transitional period before she returns to the job market.

26.  He further points out that the wife has tactically flared up her spending and the needs of the daughter, and thus her claimed liabilities are not justified. Her quitting of the latest job after being served with the petition for divorce is litigation-driven. She should have resumed working to earn an income of $25,000 per month, such that she can support herself out of her income and the lump sum payment allotted to her. There is thus no basis for him to pay any further periodical payment to her.

27.  In his view, the total family pot is worth about $12,012,317, of which $1,428,565 is under the wife’s ledger and the rest under his. However, in computing the equalization money to be given by him to the wife, the court should give credit for an amount of $43,736 per month that he undertakes to pay from the date of trial to the date of the judgment. [7]

28.  According to his revised open offer,[8] he would pay:

(1) A lump sum of $4.6 million to the wife as the equalisation money and on a clean break basis, subject to the final adjustment to the family pot by taking into account the monthly sum of $43,736 paid by him between the trial and the date of the judgment;

(2) Periodical maintenance of $32,785 per month for the daughter, of which $20,332 would be paid directly to the wife and the remaining of $12,453 (mainly relates to school fees, school uniforms, tutorial and extra-curricular activities, and insurance) directly to the relevant third parties;

(3) When the wife goes to work and hires a full-time domestic helper, he would pay 50% of the maid’s wages and other statutory-required expenses.

D. Issues

29.  The parties have prepared an agreed statement of issues dated 9 August 2024. Upon considering this statement of issues and all evidence, I am of the view that the major issues between the parties are:

(1) Whether there was cohabitation of the parties, the period of which should be counted towards the length of marriage;

(2) The living standard during the marriage;

(3) Whether a sum of $600,000 transferred from the husband to the Grandfather on 4 May 2022 should be added back; whether the wife’s liabilities totalling $752,603 are genuine and should be paid out of the family pot;

(4) Whether the financial resources of the husband include the financial assistance from his family and his inheritance prospect to the assets of his parents;

(5) The respective earning capacities and needs of the parties;

(6) How should their assets be shared? Should there be a financial clean break, or should the husband be ordered to pay periodical maintenance to the wife?

(7) Whether and what further order should be made in respect of the 2^nd MPS Summons?

(8) Whether there should be an adjustment on the final family pot to reflect that the husband has been paying $43,736 per month from the date of the trial up to the date of the judgment;

(9) What should be the amount of child maintenance payable by the husband to the wife.

30.  I will not approach the above issues in the sequence as stated, but will deal with them at the appropriate and relevant topics as I deem it appropriate.

E. Section 7 of the MPPO

31.  Section 7 of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”) sets out the matters that the court must have regard to when making orders for ancillary relief for a spouse and any child of the family:

“ (1) 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-

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

(g) in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

(2) Without prejudice to subsection (3), it shall be the duty of the court in deciding whether to exercise its powers under section 5, 6 or 6A in relation to a child of the family and, if so, in what manner, to have regard to all the circumstances of the case including the following matters, that is to say—

(a) the financial needs of the child;

(b) the income, earning capacity (if any), property and other financial resources of the child;

(c) any physical or mental disability of the child;

(d) the standard of living enjoyed by the family before the breakdown of the marriage;

(e) the manner in which he was being and in which the parties to the marriage expected him to be educated;

and so to exercise those powers as to place the child, so far as it is practicable and, having regard to the considerations mentioned in relation to the parties to the marriage in paragraphs (a) and (b) of subsection (1), just to do so, in the financial position in which the child would have been if the marriage had not broken down and each of those parties had properly discharged his or her financial obligations and responsibilities towards him.”

32.  In its landmark judgment of LKW v DD [2010] 13 HKCFAR 537, the Court of Final Appeal enunciated 4 guiding principles as to how section 7 of the MPPO should be approached, namely (i) distribution of assets should be “fair” as between the parties; (ii) gender or role discrimination should be rejected; (iii) equal sharing of the parties’ assets should be departed only for good and articulated reasons; and (iv) minute retrospective investigations should be rejected.

33.  It has further laid down 5-step approach as follows:

(1) Ascertain the financial resources of each of the parties calculated as at the date of the hearing;

(2) Assess the financial needs of the parties;

(3) Apply the sharing principle to the parties’ total assets (if surplus assets would remain after the parties’ needs have been catered for);

(4) Consider whether there are good reasons for departing from the principle of equal division;

(5) Decide the outcome.

F. Pre-marital cohabitation

(i) The law

34.  It is now well-settled in this jurisdiction that, depending on its nature, pre-marital cohabitation which moves seamlessly into marriage may be taken into account pursuant to section 7(1) of the MPPO, as being integral to and therefore part of the marriage : GW v RW (Financial Provision: Departure From Equality) [2003] 2 FLR 108 at §33; WLK v TMC (2010) 13 HKCFAR 618 at §97-§98; EJB v CJB (CA) [2011] 5 HKLRD 508 at §73.

35.  In this trial, counsel for the respective parties refer me to the English case of VV v VV [2023] 1 FLR 170 and the local case of RGP v CFB [2024] HKFC 84, both of which have set out a line of authorities on the cohabitation jurisprudence.

36.  After going through the authorities, I would summarize the general legal principles as follows:

(1) The “nature” of cohabitation dictates whether pre-marriage cohabitation should be counted. Cohabitation per se is not sufficient : F v F [2003] 1 HKLRD 836 at §117;

(2) The inquiry of whether cohabitation moves seamlessly into marriage is a fact specific one;

(3) The essential inquiry is whether the parties lived together in circumstances which is “approximate to cohabitation as a married couple” : WLK v TMC (supra) at §98, or whether pre-marital relationship “is of such a nature as to be treated as akin to marriage” : VV v VV (supra) at §46;

(4) The relationship must be one which is “committed” and “settled”, and which often “endure for years” : CO v CO (Ancillary Relief: Pre-Marriage Cohabitation) [2004] 1 FLR 1095 at §44. When it is a relationship of cohabitation “which span a significant period during which the parties have produced children, shared the equivalent of a matrimonial home, mingled their finances, and so forth”, such a relationship will often be regarded as a cohabitation relationship seamlessly moving into the state of marriage : WLK v TMC (supra) at §104; McCartney v Mills McCartney [2008] 1 FLR 1508 at §55;

(5) The court must look to “an accumulation of markers of marriage” which eventually will take the relationship over the threshold into “a quasi-marital relationship” : IX v IY (Financial Remedies: Unmatched Contributions) [2018] EWHC 3053 (Fam), [2019] 2 FLR 449 at §68;

(6) On the other hand, if cohabitation is on the basis of a “trial period” to test if there is any prospect of marriage, then it should not be counted as part of the duration of marriage: F v F (supra) at §119;

(7) Also, if the cohabitation is an “on-off” basis lacking the semblance of permanence; and there were no children; and the parties consider themselves free to take another partner during separation, it is unfair to treat the cohabitation as part of the marriage period: H v H (financial provision: short marriage) (1981) 2 FLR 392 at 399.

(ii) Whether cohabitation moving seamlessly to marriage?

37.  The wife is insistent that since 2012, she started to live with the husband at his flats at Happy Valley and later at Fortress Hill, during which he paid for all the household expenses and gifted her with electronic gadgets, fashion jewelleries and designers’ handbags. Therefore, the pre-marital cohabitation of about 3 years should be taken into account as the length of the marriage.

38.  The husband, needless to say, does not agree. He points out that although the wife did come to stay overnight at his place from time to time, she did not reside there. She still had her own job and lived with her family in Tseung Kwan O.

39.  Upon considering all the evidence, I am not convinced by the wife that she had cohabited with the husband since 2012 and that such cohabitation, if any, moved seamlessly into marriage, for the following reasons:

(1) It is her mere say-so that she moved to live with the husband since 2012. Apart from the documents showing that some of her online purchases and a letter from the Small Claims Tribunal were sent to the husband’s address in 2012 and 2014, there is no other documentary evidence proving that she had moved completely into the husband’s place. Notably, her more important personal documents, eg bank statements and tax documents, were still sent to her maiden home;

(2) Even if (just assuming) she did reside with the husband there and then, the law is clear that cohabitation per se is not sufficient to show that such cohabitation moves seamlessly into marriage;

(3) There was a major alteration in the manner the parties conducted their relationship before and after the marriage, including (i) they opened a joint account (the joint HSBC account) only at the time of their marriage; (ii) the wife was pregnant only after the marriage. Their daughter was born about one year after their marriage; and (iii) the matrimonial home was purchased after their marriage.

40.  I thus conclude and rule that the wife has not made out a case that they had cohabitation prior to the marriage, and/or that their cohabitation prior to the marriage, if any, was approximate to cohabitation as a married couple. Hence, any cohabitation period, if any, should not be counted towards the length of their marriage.

(iii) Short or long marriage?

41.  Perhaps, it is more convenient at this stage to deal with the husband’s argument that this is a short marriage, a factor which he says would impact on how the living standard during the marriage should be replicated way forward.

42.  The marital relationship of the parties from the day of their marriage (June 2015) until the date of petition (April 2022) lasted for about 7 years. In my view, this should be regarded as a short marriage.

43.  In the landmark case of LKW v DD (supra), the parties were married in February 1996 and separated in June 2002. Their marriage lasted for only 6 years, which is already sufficiently long for the Court of Final Appeal to decide that the equal sharing principle (instead of the conventional one-third rule) should engage. Further, if young children are involved, whom would, in many cases, be taken care of by the wife upon the breakdown of the marriage, fairness dictates that the length of the marriage becomes a lesser important factor in the section 7 exercise. For these reasons, the husband’s argument must be rejected.

G. Identification of assets

44.  The parties have prepared various joint schedules of agreed and disputed assets and liabilities, with the most updated one submitted to the court during the trial on 16 October 2024.

45.  I will pause here to make one observation and comment. Very often, family law practitioners would transcend to very minute details, giving the value of each item of asset/liability to two decimal places. This is wholly unnecessary because the court is only required to take a broad brush approach, as explained by Ribeiro PJ in LKW v DD (supra) at §72.

46.  Therefore, I would appeal to all the family law practitioners that they should bear the above in mind in drafting the joint tables of assets and liabilities, and that it is sufficient to state the value of an asset or a liability to the nearest decimal place, which I will do in this judgment.

H. Transfer of $600,000 from Wing Lung Accounts

47.  By way of background, the husband and the Grandfather jointly held 2 accounts at Wing Lung Bank: (i) a savings account ending with #034; and a current account ending with #288 (collectively “Wing Lung Accounts”). The Grandfather had terminal lung cancer and sadly passed away on 3 June 2022. On 25 April 2023, the Wing Lung Accounts were closed. Importantly, the closing balance of about $210,491 was deposited by the husband into his SCB account. As at this trial. there is no dispute that the balances at the SCB account form part of the assets for sharing in this case.

48.  During the case management hearing, I enquired if the husband alleged that the Grandfather was the beneficial owner of the Wing Lung Accounts, and if so, whether the estate of the Grandfather should be joined into these ancillary relief matters. The enquiry was made because in his reply (to the wife’s questionnaire) filed on 18 October 2022, the husband said that the Wing Lung Accounts were set up to hold funds for the Grandfather’s medical expenses, and that the entirety of the funds belonged to the Grandfather.

49.  Upon taking instructions, his solicitors submitted that the husband would acknowledge and agree that he is the legal and beneficial owner of the Wing Lung Accounts. Such concession is duly recorded in the order of this court made on 22 December 2023.

50.  About 2 weeks before this trial, the husband disclosed to the wife the bank statements of the said current account via his solicitors’ letter dated 3 October 2024. Only then did he disclose that a sum of $600,000 was transferred from the said current account to the Grandfather’s personal account on 4 May 2022 (ie about one month before the death of the Grandfather).

51.  In the trial, the husband gave evidence to the effect that on or about 4 May 2022, the Grandfather gave him verbal instructions to transfer the said $600,000 to the Grandfather’s personal account to prepare for his medical bills, as they were planning to move him from the Ruttonjee Hospital to try out different cancer treatments in a private hospital.

52.  The wife takes issue with this withdrawal of $600,000, and argues that the Grandfather was then very ill and staying in a public hospital, and thus did not require $600,000 to settle his medical bills. Ms Lareina Chan, counsel for the wife, submits that the said withdrawal was done “in order to avoid it from being shared in these proceedings”.

53.  The ultimate question to determine is thus this: whether the said $600,000 was transferred from the said current account for the reason(s) and in the circumstances as alleged by the husband, of which I hold the following views.

54.  First, I do not accept the husband’s oral evidence that the Wing Lung Accounts are the Grandfather’s accounts (which suggests that the Grandfather is the beneficial owner), because the husband has already acknowledged and agreed that he is the legal and beneficial owner of the Wing Lung Accounts. The circumstances leading to such a concession is already set out at [48] to [49] of this judgment.

55.  While I accept that a concession made by a party in a hearing may be withdrawn, it is trite to say that a formal application is necessary and the court will closely scrutinise the application. There is no formal application from the husband seeking to retract from the said concession.

56.  I go further to say that even if such an application was taken out, I can see no justification to allow the husband to retract from the concession made on his behalf by his solicitors, there being no vitiating factors, such as fraud, mistake or material change of circumstances, which affect the basis of the concession.

57.  Second, it needs no explanation that medical fees of a public hospital are generally inexpensive and much lower than those of a private hospital. It is thus hard to accept that the Grandfather’s medical fees of the Ruttonjee Hospital would come anything close to $600,000.

58.  Notably, the Grandmother had already paid for the medical fees of the Ruttonjee Hospital on 17 May 2022.[9]

59.  Third, it is a mere say-so of the husband that his family had plans to transfer the Grandfather to a private hospital. Such allegation does not sit well with the WhatsApp messages between him and the Grandmother[10]. In these WhatsApp messages that spanned from January to May 2022, there was no suggestion, whether directly or indirectly, of such a moving plan to a private hospital. On the contrary, the Grandmother forwarded a message to the husband which recorded positive comment about public hospitals:

“Heard that the Oncology Dept of the Eastern Hospital [Pamela Youde Nethersole Eastern Hospital] is up to par. So please be at ease…”

60.  Fourth, even if (just assuming) the Grandfather was really to be transferred to a private hospital for different cancer treatments, there was no discernible reason that he would need $600,000 to prepare for his medical fees, because he had just sold a shop at Tin Hau (free of mortgage) for $24 million on 18 May 2022. As a matter of fact, the conveyancing documents were signed by the husband on the Grandfather’s behalf, pursuant to a power of attorney.

61.  Fifth, I find the husband extremely evasive during the cross-examination to the questions concerning the condition of the Grandfather in the last month of his life. For example, he was asked at least 2 times if the Grandfather was admitted into the “intensive care unit” of the hospital, but he did not give a direct answer. When the question was put to him the 3^rd time but in different wordings, namely which ward the Grandfather was staying, he replied that he did not look at the name of the ward and that he would have to ask the Grandmother for the name of the ward. Such a reply is devoid of any logic and common sense.

62.  In summary, I do not believe in the husband’s case on this issue. I hold the general view that he wants to downplay the seriousness of the medical condition of the Grandfather, so as to impress this court that the Grandfather was conscious and healthy enough to give the instructions to transfer $600,000 to his personal bank account. I do not believe this was the case. Therefore, I conclude that the husband transferred $600,000 out of the Wing Lung Accounts (of which he concedes that he is the legal and beneficial owner) without good and acceptable reasons, and thus more likely than not that this is with a view to reduce the size of his assets. I am of the view that this sum of $600,000 should be added back to the pot.

I. Liabilities of the wife

63.  As at the date of the trial, the wife has unpaid credit card balance of $424[11], which should not be of dispute. Her other liabilities (disputed) come up to $752,603:

(1)	HSBC visa platinum card	$469,771
(2)	SCB visa platinum card	$97,262
(3)	AIA policy	$50,570
(4)	Sakura (friend)	$135,000
	Total:	$752,603

64.  These alleged liabilities will be conveniently discussed under the following sub-headings.

(i) HSBC and SCB Loans

65.  The husband accepts that the wife owes HSBC and SCB the amount of loans stated in the above table. Mr Chan for the husband points out that the wife was already drawing loans from her HSBC credit card as early as October 2023, but argues that these loans were caused by her unreasonable spending and “wanton” conduct which is clearly litigation driven. For example:

(1) She bought 2 iphones in October 2023 for $17,098;

(2) She travelled to Singapore in December 2023, and stayed at the Conrad Hotel (for $6,305);

(3) She bought a BMW in April 2024 for $214,737;

(4) She travelled to London in April 2024, during which she bought an expensive jacket from Moncler at $7,627.

66.  First of all, it is not the duty of the court to perform a forensic examination of the wife’s spending at the material times; a broad brush review is sufficient.

67.  Taking a broad brush approach to read her HSBC visa platinum card statements and SCB credit card statements (disclosed with her 2^nd Form E), I note that substantial parts of her credit card spending were related to expenses of daily life, such as purchases at HKTV Mall, 7-Eleven, Aeon Style at Kornhill, Eslite Taikoo store, Starbucks Coffee, as well as Octopus card top-ups. These items of spending cannot be said as “wanton” spending.

68.  I have not forgotten that she received a capital advancement of $2 million pursuant to the 1^st MPS Order. However, I accept that she had spent most of it on the legal fees of this case. I have set out the parties’ legal costs at [14] of this judgment. I also accept that she has to bear other expenses of daily living that are not being paid directly by the husband pursuant to his undertakings, eg food and supermarket purchases.

69.  Further, according to the wife, her second-hand BMW was purchased by selling some of her stock investment, but not by utilising the HSBC or SCB loans.[12] This was not challenged by the husband when she was being cross-examined.

70.  The wife sets out her alleged expenses that she spent for herself and the daughter for the Singapore and UK trips[13]. I note that apart from the criticism by Mr Chan on her spending of the Conrad Hotel and the Moncler jacket, counsel is not able to particularise other “wanton” items of these 2 trips.

71.  Looking at the matter in the round, I am not able to embrace Mr Chan’s submission. I am of the view that the HSBC and SCB loans should be taken into account in arriving at a net value of the wife’s assets.

(ii) AIA loan

72.  The wife took out a loan in the sum of $50,570 (USD6,500) from her existing insurance policy with AIA on 15 July 2024, intending to use it for her and the daughter’s living expenses. However, since the husband paid her $800,000 pursuant to the 2^nd MPS Order, the AIA loan is still kept at her HSBC account, unspent, as at this trial.

73.  The husband does not dispute that the wife has borrowed the said loan. But since she has not used it, this purported liability can be disregarded.

74.  I agree with the husband’s submission and reject that of the wife. Since the AIA loan is still unused, she can simply repay the loan. This would not affect her HSBC account balances as reflected in the most updated joint schedule of assets and liabilities, because the said updated joint schedule is based on the financial disclosure up to her 2^nd Form E (dated 29 May 2024). The AIA loan was taken out and paid into her HSBC account (in July 2024), after her 2^nd Form E was filed.

75.  I conclude that her AIA loan can be disregarded for the purpose of identifying the net value of the wife’s assets.

(iii) Loans from Sakura

76.  The wife says that she borrowed 2 sums from her friend, Sakura: (i) a sum of $35,000 on 11 April 2024; and (ii) another sum of $100,000 on 12 June 2024, of which she had all spent for daily expenses. In support, she produces 2 home-made IOUs signed by her and Sakura. The IOUs state that the loans would be repaid either within 12 months or 18 months, at an interest of 3% per annum.

77.  The husband challenges the genuineness of these 2 loans, arguing that the wife failed to disclose the IOUs together with her 1^st Form E or 2^nd Form E (as the case may be), but chose to disclose them only on 26 September 2024, which was just about 2 weeks before the commencement of this trial.

78.  I am inclined to agree with the husband’s submission. The wife conveniently says that the alleged loans from Sakura are in cash. However, it is unimaginable and thus illogical that one would take the trouble to go to the bank to draw out $35,000 or $100,000 in cash, when online inter-bank transfers can be done nowadays so easily by pressing a few buttons on one’s computer or smartphone. Further, the wife is not able to give a satisfactory and acceptable explanation as to why the alleged IOUs were disclosed at such a late stage. She has not called Sakura to give evidence in this trial. Last but not the least, the wife strangely says in her oral evidence at cross-examination that at first she did not intend to mention the 2^nd loan of $100,000, not until the husband suggested making amendments to the joint schedule of assets and liabilities. This stance does not sit well with her claim that the loans from Sakura are genuine loans.

79.  My conclusion is that the wife has not come up to the proof that she owed Sakura $135,000.

J. Summary of their assets

80.  Due to the above findings, I conclude that the parties’ net assets come up to $12,046,033 which are tabulated below:

	Wife	Husband
Cash at banks	$395,199	$7,291,135
Stock investment	$258,583	$1,597,211
Policies	$396,460	---
Personal valuables, eg watches, gold items, car	$229,838	$411,450
MPF	$149,658	$283,956
Inheritance from the Grandfather	---	$1,000,000
ADD
$600,000 transferred from Wing Lung Accounts to the Grandfather’s personal account	---	$600,000
LESS
Wife’s liabilities ($424 + $469,771 + $97,262)	$567,457	---
Total (net):	$862,281	$11,183,752

K. The marital living standard

81.  The starting point is that under section 7 of the MPPO, the court must consider “the standard of living enjoyed by the family before the breakdown of the marriage”, as this is relevant to the assessment of the needs of the parties and the children of the family (if any).

82.  In this case, the parties have a huge and uncompromising gulf as to what their living standard during the marriage was.

83.  The wife repeatedly stresses that during the marital life, “money is never an issue” for this family, and they lived a “very comfortable lifestyle” or “highly comfortable living standard”. On the other hand, the husband adamantly describes that the family led a “relatively modest” or “moderate” lifestyle, went to medium-priced restaurants or simply ordered Deliveroo home delivery, and had not travelled out of Hong Kong since their marriage.

84.  Upon considering all evidence, I have to say that both parties have, in my view, either exaggerate or downplay their living standard during the marriage, which is not uncommon in family litigations. In addition, I make the following observations or comments.

85.  First, partly subsidized by the Grandfather, their marriage banquet was held in the top-class Four Seasons Hotel. Their matrimonial homes, firstly at Maiden Court and later at Jardine’s Lookout, were both situate in prestigious residential districts at the mid-levels on the Hong Kong Island.

86.  Second, they joined one of the elite clubs, the Hong Kong Country Club, as early as the first year of their marriage. I believe that during the marriage, the whole family enjoyed club dining and other facilities on a regular basis.

87.  Third, I accept that the husband had access to various cars, mainly of BMW or Honda, during the marriage, though he alleges that these cars beneficially belonged to his parents. I also accept that since 2019, the family had the enjoyment of using a BMW M135i sports car. Notably, the matrimonial homes at Maiden Court or Jardine’s Lookout were equipped with a car parking space.

88.  According to the husband’s evidence, he drove the sports car more and that he “was basically the one who drove and picked [the daughter] from school and activities/classes everyday”. However, the wife recounts that since 2019, the husband let her drive the sports car to send the daughter to school and other extra-curricular activities, as well as to the Hong Kong Country Club, and thus it was she who used it more.

89.  I do not think that I need to decide on who drove the sports car more during the marriage, because no matter what, it is clear to me that at the very least, it was the living standard of the daughter during the marriage that she did not use public transportation (such as mini-bus, bus or MTR) for school and various education activities.

90.  Fourth, I acknowledge that it may not be fair to rely on the fact that the parties did not have overseas trips, or they cancelled planned trips/staycations, during the Covid-19 pandemic when international travelling was basically put to a halt. However, it remains factually true that the parties did not have any overseas trips in the pre-Covid period. The destination of their planned but later cancelled honeymoon was in Japan, but not in Europe or America.

91.  I agree with Mr Chan, counsel for the husband, that it is wrong and contrived for the wife to rely on her recent trips to Singapore and the UK as the benchmark to prove the living standard during the marriage.

92.  Taken into account all relevant factors, it does not occur to me that it was the living standard during the marriage that they would have extensive and luxurious overseas trip(s) to Europe. An average-priced travel once a year to Asian or Southeast Asian countries was, in my view, the living standard of this family during the marriage.

93.  Fifth, I do not believe that the parties went to high-end or Michelin restaurants frequent enough to become a benchmark that was reflective of their living standard. Taking the wife’s case to its highest, they went to such restaurants on “some” occasions only[14]. In her oral evidence, she concedes that they dined out in high-end restaurants a few times per year only.

94.  Sixth, I do not accept that it is a norm during the marriage (and thus not their living standard) that the wife was gifted or had bought fashion jewelleries or designers’ handbags. This allegation does not sit well with her own Form Es, in which she says either that she does not possess any valuable personal chattels (1^st Form E), or that she merely has a gold bracelet (worth of $4,664), a gold ring (worth of $2,174) and a Rolex watch (worth of $30,000).

95.  Seventh and of huge importance, in determining the living standard during the marriage, I am of the view that the court should not merely consider the subjective descriptions such as “moderate” or “highly comfortable” lifestyle proffered by the parties, but should look more closely to the objective facts showing their financial arrangement and lifestyle, as well as their spending pattern which can be gleaned from their credit cards.

96.  I think the following financial arrangements during the marriage are either not in dispute or indisputable:

(1) The husband was the main financial provider to the family. He paid for the mortgage of the Maiden Court property, rent of the Jardine’s Lookout property, utilities and groceries, the daughter’s expenses, such as school fees, extra tuition or extra-curricular activities. He also paid for the meals out when the family ate out together;

(2) After the wife left her employment in February 2018 until March 2021, he paid her cash allowances in the sum of $20,000 per month (increased to $25,000 from September 2018 to June 2020). He stopped paying her cash allowances since April 2021;

(3) On top of the above, the wife had free access to the HSBC and SCB credit cards, which bills were settled by the husband.

97.  The husband has complied a table showing the credit cards spending of the family from April 2021 to March 2022, which he says is reflective of their actual living standard. His table shows that their credit cards spending during this period was about $35,204 per month only. This is objected by the wife, who argues that there were many other items of expenses not covered by credit cards but by payments in cash or bank transfers by/from the husband, such as payments to the learning centres, purchases at the wet markets, and the maid’s salaries. She also complains that the husband should have disclosed the credit cards statements of the pre-Covid period (which would reflect the true living standard), but he refused to do so.

98.  My views of the husband’s table of credit cards spending are:

(1) If the wife thinks that the credit cards statements of pre-Covid period are relevant, she should have taken out an application for discovery. Yet she has not done so;

(2) At all material times when the wife was provided with the husband’s credit cards for her use at her discretion (with credit limits as high as $80,000 for HSBC credit card, and $478,000 for SCB credit card), the total monthly spending was merely of an average of $35,204 only;

(3) That said, nevertheless, it is my view that the credit cards spending set out in the husband’s table cannot be taken as the only and conclusive benchmark to reflect their living standard during the marriage. Buffer should be allowed, because this period (April 2021 to March 2022) fell within the Covid-19 pandemic when social distancing was put in place and social activities were restricted for most of the time;

(4) I have read the credit cards statements of the relevant periods. The wife is correct in pointing out that the daughter’s school fees/extra tuition/extra-curricular activities were not paid by credit cards. Such expenses, according to the husband, would be around $11,729 per month;[15]

(5) It is also noted that the rent of the Jardine’s Lookout property ($32,500 per month) was not paid by credit card(s);

(6) It must be remembered that according to the husband’s own case, he gave cash allowances to the wife in the monthly sum of $20,000-$25,000 during the period when she was not working. He stopped such cash allowances only since April 2021.

99.  Roughly (and it is also my findings), the total expenses of the family that was paid by the husband, including cash allowances to the wife, came up to $99,433-$104,433 per month for a substantial period of time during their marriage. This has not included the monthly mortgage repayment of the Maiden Court property (ranging from $16,260-$16,475 per month)[16] up to the time of its sale in March 2022, and if added, would bring the total expenses to $115,693-$120,908 per month. That said, however, I have to remind myself that these were the figures when the family (of 3 or 4 if including a full time maid) was still living together in one household.

100.  I opine that the above analysis is sufficient for me to conclude that the parties enjoyed a fairly comfortable middle-class lifestyle during the marriage, but surely not of a lavish or extravagant standard. However, it also impresses me that both parties, being loving parents, readily spent on the daughter to make her life and study comfortable and rewarding.

101.  All of the above analysis will form the basis of my assessment of the needs of the parties and the daughter way forward, but at the same time, I will also be vigilant about the following legal principles:

(1) The standard of living is not an immutable guide, and cannot be taken as a factor which “dominate” the section 7 exercise : FF v KF [2017] EWHC 1093 (Fam) per Mostyn J at §18;

(2) As time passes, how the parties lived in the marriage becomes increasingly irrelevant, and too much emphasis on it imperils the prospect of eventual independence : SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam), [2015] 2 FLR 1124 per Mostyn J at §35;

(3) The use of the standard of living as the benchmark emphatically does not mean that in every case needs are to be met at that level either at all or for more than a defined period (of less than life). The provision should enable a gentle transition from that marital standard to the standard that she could expect as a self-sufficient woman : Miller/McFarlane [2006] UKHL 24, [2006] 2 AC 618, [2006] 1 FLR 1186, per Baroness Hale of Richmond.

102.  There are other points advanced by the respective parties in their written closing submission, but I am of the view that there is no need to go further into these points. Suffice it is for me to say that I have considered them, but they have not persuaded me to form a contrary view.

L. The wife’s earning capacity

103.  According to the wife’s affidavits, supplemented by her oral evidence, she agrees that she has earning capacity and that it is not the case that she does not want to work (不是不想做), but she cannot work because of the daughter. She says that the daughter is emotionally sensitive and shows a strong attachment to her. Hence, she needs to take care of the daughter who (i) does not want to stay alone with a maid; (ii) does not want to take school bus alone without the wife; and (iii) wants the wife to prepare and deliver lunch box to her. When answering questions from the court, however, the wife confirms that with the assistance of a full time maid (whose wages and expenses should be borne by the husband solely), she can work again in the compliance department of banks when the daughter goes to Form 2, earning about $20,000 per month.

104.  The husband does not agree with the wife at all. He argues that she returned to the workforce in 2022 because of the financial reality of the household (ie he was laid off since 2020 and the family was living off his savings). She tactically quitted her job 5 months later. She uses the excuse of taking care of the daughter in order not to work, in the greedy hope that she would get a meal ticket for life from him. He is adamant that she should return to work immediately, and upon which he would share 50% of the maid’s expenses if she hires a maid.

105.  There is no doubt in my mind that the wife should return to work. She is still young, at the age of about 39 years old only. She has abundant working experience in the banking industry, specializing in the field of compliance. Pertinently, she continued to work even after the marriage and after the daughter was born; she stopped working only from 2018. She worked again in 2022 for 5 months. She argues that it was the pre-meditated plan of the husband to ask her to work again in 2022, by telling her that she was “too housewife-like” (太師奶). If this was true, then it is very telling of her own intention to work. Otherwise, she could have easily rejected the husband’s suggestion.

106.  Further, it is my findings that the wife quitted her job in 2018 because the family lost the service of a full-time maid to assist taking care of the daughter who was only aged 2 at that time. However, the daughter is now 9 years old and is no longer a toddler. I do not believe that the daughter is so emotionally sensitive and so heavily attached to the wife, to the extent that she can only be taken care of by the wife and that she rejects to be taken care of by a maid. Importantly, it was observed by the social investigation officer(s) that the daughter was “strong in problem solving”[17] and “cheerful and smart”[18]. There was not any problem for the Grandmother’s maid(s) to bathe or change her, because when the social investigation officer(s) asked about the staying access, the daughter “showed her thumb and smiling face”[19].

107.  Before the wife quitted her job in 2018, she earned about $25,000 per month. When she worked again in 2022, her income was $25,200 per month. Hence, I conclude that with the assistance of a full-time maid, the wife should be able to return to work in the banking industry, earning around $25,000 per month.

M. The husband’s earning capacity

108.  The husband is now 49 years old. His background and qualification are already set out at [3] above.

109.  After he returned to Hong Kong in 2009, he ran his own freelance design business, Axxx, between 2011 to 2014. At the same time, he studied at the University of Hong Kong for a master’s degree in business administration. The master’s degree was awarded to him in 2015. Since 2015, he was employed by various architecture firms. The monthly income of his last job, before he was made redundant in September 2020, was $80,000 (excluding his double pay received around the Chinese New Year).

110.  After running briefly for one year an online business in selling wallet (which was subsequently closed down due to minimal business), he re-started the business of Axxx again in 2023, intending to take up freelance design work for architecture, interiors, furniture and other products. Between September 2023 to August 2024, Axxx has taken up 3 website design consulting projects, and according to its management accounts, Axxx earned a total net profit of $21,895 (ie at a token sum of $1,825 per month) during this period[20].

111.  The husband claims that Axxx has taken on design services of household products for the USA market since July 2024 for 4 months at a fee of about $25,000 per month. The term of the contract has been extended and is still continuing as at this trial.

112.  Way forward, he plans to take up more projects in order to increase his income. If that is not possible, he would have to return to the job market. However, it would be “extremely difficult” for him to find a job with $80,000 per month, and it is likely that he has to dip into his half of the family pot to pay for his and the daughter’s expenses. He points out that his earning ability is hindered by a number of factors, such as:

(1) He does not have a Hong Kong architect licence; he does not have native Chinese language skill;

(2) He is not trained in the BIM compute program (which is a requirement of many architecture firms);

(3) His skills are not specialised but a mixture of architecture, interior design, entrepreneurship and project management;

(4) There is a shift to smaller teams and using freelancers abroad due to cost cutting and efficiency;

(5) His age, as many architecture firms prefer younger workers for design roles;

(6) The stress of the divorce and the unethical personal attacks of the wife against him and his parents have caused a negative impact on his creativity.

113.  To support the above allegations, the husband claims that he attended interviews with Henderson Land, Dragages, Great Eagle etc, but was not offered a job. He also sent out 13 job applications in July to August 2024, but has not been offered any job.

114.  In my judgment, the husband possesses diversified qualifications. Not only is he an architect, but he also has a master’s degree in business administration. By the time he was made redundant in 2020, he had been working as an architect in the USA and in Hong Kong for over 20 years. He must have accumulated valuable experiences over these years, which gives him a competitive edge over those architects who do not have overseas experience. Further, Hong Kong is an international city embracing professionals from all over the world, and thus I do not believe that his language barrier (ie he speaks mainly English), if any, would pose any limitation on him in securing a job. In my view, his US-architect experience adds a touch to his international diversities, rather than a hindrance. Since he returned from the USA to Hong Kong, his continued involvement in big and international projects, such Tai Kwun (the former Central Magistracy and Victoria Prison) and a hotel in Japan, is a further proof of the advantage of his international diversities.

115.  Importantly, the aforesaid alleged hindrance on his earning capacity does not sit comfortably with the fact that his monthly income with Mxx increased significantly by about one-third from $60,000 to $80,000 from 2018 to 2019. Besides, I do not believe that his creativity has been adversely affected by the divorce proceedings. After all, it is his unilateral decision to divorce with the wife, as it is his own evidence that he already felt marital discord a few years into the marriage and that he has been unhappy for a long time.

116.  Ms Chan submits on behalf of the wife that the husband’s last-minute attempts to apply for jobs in July to August 2024 (shortly before the PTR) are merely to bolster his image for trial. I would not have gone that far to think so. However, I do hold an overall impression that the husband is not keen to get a job. As a person who has been out of the job market for years, it is very strange and discouraging information to provide to a potential employer in the preliminary job-enquiry emails that he has not worked in the field since September 2020 “due to some family issues”, and that he can only “work from home on Thursdays and Fridays if possible”.

117.  In view of the above comments and findings, I am of the view that the husband has not done his best to utilise his earning capacity. I also rule that it is his subjective choice, but not the objective market reality or his claimed limitations, that he has not taken up any full time architecture jobs since 2020. I will have more to say on such a choice when I come to the analysis of any financial assistance from his family.

118.  In conclusion, the husband is deemed to be able to get a job as an architect, earning at least $80,000 per month.

N. Financial assistance from his family

(i) The law

119.  The leading authority on financial assistance from a third party in matrimonial/family proceedings is the judgment by the Court of Final Appeal in KEWS v NCHC [2013] 2 HKLRD 314 at §33-§39. A more recent judgment comes from the Court of Appeal in TKY v YSGA [2025] 1 HKLRD 977 at §27.

120.  Pulling the threads together, I venture to summarise the legal principles as follows:

(1) In deciding the financial resources of a party, the court is not bound to merely look at the assets under his legal ownership. Section 7(1)(a) of the MPPO is wide enough to include those assets or financial resources that a party is likely to have access at present or in the foreseeable future;

(2) Where third party assistance is involved, the court would carry out a 2-stage test, namely,

(a) whether there was, and if so the extent of, financial assistance from the third party; and

(b) if there is a likelihood of such assistance will be continuing in the foreseeable future;

(3) In determining these questions, the court will look at the “reality” and “substance” but not just “form”;

(4) The past conduct is a useful guide as to what might happen (ie what financial assistance might be given) in the future;

(5) The outcome of the evaluation is case-specific and fact-sensitive.

(ii) Whether, and if so, the extent of financial assistance?

121.  On behalf of the wife, Ms Chan submits that the husband comes from a wealthy family, and that his parents owned/own a number of landed properties of substantive value, including the 3-storey Shouson Hill property, 2 commercial shops (one of which in Tin Hau was sold at $24 million immediately before the Grandfather passed away). With the financial support (in cash and/or by cheques) from his parents, including reimbursement of the daughter’s kindergarten fees (Victoria Kindergarten) and rental payment of their matrimonial home, the wife claims that the parties could spend beyond their means and never had to worry about money during their marital life.

122.  The husband vehemently disputes the above allegations and retorts in his section 7 affidavit that,

“28. …Although my father was relatively well-off, he always encouraged me and my brother to be self-sufficient and be financially independent. I have never received financial support from my family, save and except for a one-off gift from my late father in the sum of HK$7 million for the purchase of the Maiden Court Property. The said HK$7 million was deposited into my Bank of China savings account no. XXXX. Throughout the marriage, I have been relying on my savings (including savings from before the marriage) to pay for the family’s expenses…” (emphasis ended)

123.  In his closing submission, Mr Chan for the husband submits that the wife changes her case on her knowledge of the alleged financial arrangement between the husband and his parents, set out more particularly at §32 to §40 of his closing submission. Counsel argues that the wife has no knowledge about the finances between the husband and his parents, and that she has no evidence to support that the Grandmother had/has supported and is willing to financially support the husband.

124.  Upon due careful consideration of all the evidence, I express my views/comments in the following.

125.  First, it is a fact that during the marriage, the husband settled the majority, if not all, of the family expenses, and paid the wife cash allowances in the sum of $20,000-$25,000 per month ever since she stopped working in 2018 until 2021. As long as the family expenses were taken care of by the husband, I cannot see why the wife should be bothered by the question of what the financial arrangement, if any, between the husband and his parents was.

126.  Second, the wife’s complaint about the failure of the husband to provide his bank statements of 2018 and 2019, which she believes would throw light on the financial gifts or reimbursements from his parents to him, is not accepted. After all, she has not taken out any application for specific discovery of the husband’s bank statements beyond the period required by his Form Es.

127.  Third, however, that is not detrimental to the wife’s case, because in my view, merely considering the husband’s own case, there is undisputed or indisputable evidence that his parents had/has provided some financial assistance to the husband over the years. The financial assistance includes:

(1) Payment of the parties’ wedding banquet at the Four Seasons Hotel for about 40 tables of guests (the husband, despite repeatedly asked in the trial, conveniently said that he was not able to recall how much the wedding banquet had cost);

(2) Gift of $7 million to assist the husband to purchase their first matrimonial home at Maiden Court;

(3) Allowing their car(s) to be registered in the husband’s sole name (and it is the husband’s case that he held the cars on trust for his parents) and/or allowing the husband to use their cars. These include a white BMW M135i sports car, a black BMW M135i sports car, a BMW X1 and a Honda 7-seater at different stages. In particularly, they paid for the vehicle licence fees and vehicle insurance of those cars used by the husband;[21]

(4) Allowing the husband to keep the sale proceeds of the black BMW M135i sports car, which was sold on 30 August 2022 for $99,440, despite the husband’s assertion that the said car belonged beneficially to the Grandfather (and thus upon the death of the Grandfather, to the Grandmother who is the major beneficiary of the former’s estate). The sale proceeds of the said car was subsequently paid into the husband’s BOC account;[22]

(5) Allowing the husband to take the balances of the Wing Lung Accounts, despite the husband’s own assertion that the moneys in the said Accounts were beneficially owned by the Grandfather whose Will provides that the Grandmother is the major beneficiary of his estate;

(6) Allowing the husband to live in the Shouson Hill property, not only free of rent, but with the enjoyment of service of maid(s), since June 2022.

128.  Pausing here, I will point out that what the husband deposes in his affidavit set out at the above [122] (that the only financial contribution from his parents is the gift of $7 million) is not true, but his attempt to downplay the financial assistance given by his parents to him.

129.  Fourth, the husband alleges that he is required by the Grandmother to pay partial household expenses and food of the Shouson Hill property, as well as the wages of one of her maids (who assists in taking care of the daughter during the husband’s access time) since January 2023. I refuse to believe such evidence for the following reasons:

(1) The Grandmother is 78 years old and of good health. She comes from a wealthy family that used to own a free-standing house in Kowloon Tong. The house was sold in the 1990s at $90 million. She is the major beneficiary of the Grandfather’s estate comprising of various landed properties. She lives in the Shouson Hill property with 3 maids. She can and should be described as a lady with sound and stable financial ability, if not very wealthy;

(2) The relationship between the Grandmother and the husband, as described by the husband, is very close. Solely considering the husband’s own evidence, I think there are good reasons for that. The husband is the only son of the Grandmother now living with her in Hong Kong. Her elder son has been living with his own family in Japan for over 10 years. In the old days when both the husband and the elder brother were studying overseas, the Grandmother went to the USA in company with the husband (but not his brother). In the husband’s own words, he “hang out more” with the Grandmother. Towards the demise of the Grandfather, the husband decided to move to the Shouson Hill property to accompany the Grandmother. From then on, their relationship has become even closer. When the Grandmother allegedly asked him for a loan of $3 million (co-incidentally 2 weeks before he filed his petition for divorce), he just gave her the money without even asking for the purpose of such alleged loan. The WhatsApp messages between them (disclosed by the husband) are also indicative that he is caring and gentle to the Grandmother. For example, he would message her to check out where she was; he would take initiative to download the Uber apps for her[23]. All in all, I have little doubt that the husband is a filial and loving son in the eyes of the Grandmother;

(3) Given such close and loving relationship between them, the Grandmother must be aware that the husband has been unemployed since 2020 with no or minimal income, but has been under the constant pressure/burden of paying various payments and capital advancements to the wife (as a result of her MPS Summonses) and bearing a substantial amount of legal costs which, he says, is triggered by the wife’s unreasonable litigation conduct;

(4) In the totality of the above circumstances, this court cannot discern any logical reason why the Grandmother suddenly told the husband that he has to bear the costs of the maid and some household expenses at such difficult and weary time of his life;

(5) It is the husband’s mere say-so that he was requested by the Grandmother to pay for the wages of one of her maids and some of the household expenses. If indeed these requests were genuine or serious, it is then very strange that the husband has not asked the Grandmother to make an affirmation and to come to give evidence in the trial to support this claim.

130.  Fifth, in her closing submission, Ms Chan for the wife tries to compare the legal costs incurred by the husband and the reduction of his bank balances to show that there must be other financial resources available to him from his family.

131.  On the reduction of his bank balances, the husband explains in his 7^th affidavit like these:

“20. There is no depletion of HK$8 million from my bank accounts…as I have explained in my solicitors’ letters dated 29 July 2024 and 16 August 2024, [the wife] should have looked at the total balances of all of my accounts, instead of just focusing on my Bank of China accounts. The total balances of my bank accounts was HK$14,834,950 as at July 2022, and HK$9,595,767 as at January 2024 - a difference of HK$5,239,203 (sic)[24]. This difference can be explained by the following:

a. My legal fees including and up to June 2024 was a total of HK$2,845,429.10;

b. Payment of [the wife] and [the daughter’s] expenses, including the two lump sums advanced to [the wife] for the reasonable expenses of [the wife] and [the daughter] on 18 November 2022 and 28 February 2023 respectively totalling HK$2,454,000.” (emphasis added)

132.  I have the following observations/comment of the above explanation of the husband:

(1) The difference of the aforesaid $5,239,203 cannot be fully explained by the 2 sums set out in (a) and (b) in the preceding paragraph, because the 2 sums added up to $5,299,429. There is a shortfall of $60,226, which begs an explanation from the husband as to the source of how the shortfall was met;

(2) It is true that the husband had made two capital advancements totalling $2,454,000 to the wife. Yet, it must be remembered that apart from the capital advancements, the husband had to also pay for (i) his own monthly expenses; and (ii) various expenses pursuant to his undertakings given to the court in the 1^st MPS Order and the Accommodation Order (See: [15] to [16] above). According to his 1^st Form E (which is the Form E made during this relevant period), his total expenses (including the sums he undertook to pay) as at 24 August 2022 were $61,607 per month. It begs a further explanation from the husband as to how he was able to meet his own monthly expenses and the expenses he undertakes to pay;

(3) Pausing here, the husband confirms in his oral evidence that he has failed to mention in his Form E the monthly fee of the Hong Kong Country Club, which was $3,000 per month[25]. If added, his total monthly expenses as at 24 August 2022 should have been $64,607 per month;

(4) His alleged monthly expenses and the sums he undertook to pay to the wife could not have been paid by the savings from his bank accounts, because his legal fees and the lump sum advancements to the wife, added together, were already more than the depleted amount of his bank accounts during the relevant period;

(5) Considering all of the above matters in the round, and unless the husband has other undisclosed assets (which is certainly not his case), it is more likely than not that the husband has financial support from his parents, or the Grandmother (after the Grandfather had passed away on 3 June 2022), such that he can meet his ends.

133.  For the matters set out above, I conclude that the husband has received financial assistance from his parents. In the early years of the marriage, the financial assistance was to the extent of assisting him in setting up the parties’ home and providing car(s) for their use. With the breakdown of the marriage, the husband is in need of an accommodation, and the Grandmother provides financial assistance in the form of giving the husband a free lodging at the Shouson Hill property, without requiring him to shoulder any contribution in accommodation, food or other expenses, as well as providing him with some monetary assistance so that he can have his ends met, without further depleting his bank savings.

134.  In my view, this may also explain why the husband has not been keen on looking for a full time job.

(iii) Likelihood of financial assistance?

135.  Upon due consideration, I will not accept the husband’s mere say-so that there was not, and will not be, any financial assistance from the Grandmother. In particularly, I take into account the following:

(1) The close and loving relationship of the Grandmother and the husband is already described at [129] above, and I shall not repeat here anymore;

(2) When asked by this court during the trial if his parents would help him out if in need, the husband fairly accepts and says that he thinks so[26]. When asked further by this court that the Grandmother would not ask him to leave the Shouson Hill property, unless he himself wants to leave, the husband confirms that the Grandmother would not “right now, kick [him] out”. Finally, he also concedes that he does not have the ability to move out from the Shouson Hill property yet, and that as long as he does not make enough earnings, he would not move out from it;

(3) Also on the own oral evidence of the husband, he tells that the Grandmother likes the daughter very much. Whenever the daughter comes to the Shouson Hill property for access, the Grandmother would stay at home to eat with the daughter, and help in her homework. This is easily understandable, because the daughter is the only grandchild of the Grandmother;

(4) Last but not the least, I do not believe that the husband would move out of the Shouson Hill property in any near future, in particularly after the death of the Grandfather. When asked by this court in the trial, the husband reveals that he has not even begun to do any budgeting of how much he needs to earn in order to move out of the Shouson Hill property into his own place.

136.  For the matters set out above, I am of the view that it is very unlikely that the Grandmother would “kick the husband out” of the Shouson Hill property. On the contrary, it is more likely than not that the Grandmother would welcome the husband (and the daughter during access time) to continue to live with her in the Shouson Hill property, without the need to bear any expenses of the household and/or any of her maid(s). It is also more likely than not that the Grandmother would assist the husband to make his ends meet.

O. Inheritance prospect of the husband

(i) Legal principles

137.  There is no question that future inheritance can be part of “other financial resources which each of the parties…is likely to have in the foreseeable future” under section 7 of the MPPO.

138.  The learnt authors of Rayden and Jackson on Relationship Breakdown, Finances and Children give a detailed explanation on inheritance prospects at §11.331-§11.337.1.

139.  What is the meaning of “likely”? The learnt authors explain at §11.332 as follows,

“In Michael v Michael [1986] 2 FLR 389 Nourse LJ considered that the broad and somewhat informal language of s 25(2)(a) [similar to section 7(1)(a) of the MPPO] demonstrates that it was intended to operate at large and not in some straitjacket tailored to the sober uniforms of property law. ‘Likely’ has been considered by the Court of Appeal in Priest v Priest [1980] 1 FLR 189 as meaning on the balance of probabilities. Arguably, following Re H (minors)(sexual abuse: standard of proof) in the House of Lords, the phrase “likely” could be accorded a different meaning. Here it was held that the word “likely” in the ChA 1989, s31(2)(a) was being used in the sense of a real possibility, a possibility that could not sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case.” (emphasis added)

140.  As to “foreseeable future”, the learnt authors say at §11.333 that there would appear to be two general interlinked factors that the court would take into account: (i) proximity; and (ii) certainty.

141.  The learnt authors go on to explain “proximity” at §11.333:

“At the higher end of the spectrum, fifteen years would appear to be ‘dimly foreseeable’ as per Cumming-Bruce LJ in Priest v Priest and Munby J (as he then was) in C v C (ancillary relief : trust fund) [2009] EWHC 1491 (Fam), [2010] 1 FLR 337. Meanwhile, in Milne v Milne (1981) 125 SJ 375, the court held that 10-11 years was not outside the foreseeable future. At the other hand of the spectrum, in Morris v Morris (1977) 7 Fam Law 244 the Court of Appeal considered ‘foreseeable’ as in two to three years’ time, while in Priest v Priest five years was considered ‘sufficiently proximate’.” (emphasis added)

142.  On “certainty”, the learnt authors elaborate at §11.334,

“In relation to certainty, Nourse LJ, in the case of Michael v Michael, sought to underline that:

‘the foreseeable future is necessarily the same thing as the near future.’

He went on to link proximity with certainty stating:

‘If, as in Milne v Milne, it can be foreseen that the interest will vest on a certain future date, albeit a somewhat remote one, I can understand that the court might think that it will vest in the foreseeable future…’.” (emphasis added)

143.  Thus in Michael v Michael where one of the issues related to the wife’s prospect of inheriting an interest in the property under her mother’s Will, Nourse LJ found that there were considerable uncertainties as to the time of the occurrence of the inheritance, the likelihood of the wife receiving an interest, if any, in the property under the mother’s Will, and the possibility of the mother changing her Will in favour of other beneficiaries in order to defeat any court order in favour of the husband. Hence, it was impossible to conclude that there was any real possibility of the wife inheriting an absolute interest in the property to enable her to make a financial provision for the husband or that the property could be regarded as a property she was likely to have in the foreseeable future.

144.  Nourse LJ’s approach was followed by Scott Baker J in K v K (financial provision: conduct) [1990] 2 FLR 225. There, the wife’s mother owned a property in New Zealand worth of about £50,000 and had capital invested of about £100,000. The two likely beneficiaries were the wife and her brother, and on the face of it, they could expect to take in equal shares. The mother was aged 79 and of good health. The court held that the wife’s inheritance expectations were not “proximate” enough to be taken into account as a significant factor.

145.  In H v H (financial provision: capital allowance) [1993] 2 FLR 335, Thorpe J (as he then was) was to determine on the husband’s inheritance prospect of his mother who was then aged 67 and of good health. The learnt judge ruled in the negative and commented that,

“it would be wrong in principle to bring this hope of succession into the scale in this case in anything other than the most general way. To bring it in as though it were a vested interest, likely to fall into possession within the foreseeable future, is in my judgment to exaggerate its significance unreasonably.”

146.  Further, even if future inheritance prospects can be proved, the assets are likely to be regarded as unilateral assets, unless such assets are generated through joint efforts and contribution during the marriage. Hence, inheritance prospects post separation are of less significance in the exercise of the court’s discretion under section 7 of the MPPO.

(ii) Discussion

147.  The wife believes that the husband will stand to inherit the assets of his parents. She proffers that originally, the husband and his elder brother would inherit the Grandfather’s estate in equal shares, but the Grandfather made a new Will in 2021 to bequeath most of his estate to the Grandmother and only $1 million to the husband. She insists that this was a disguised arrangement in preparation of the husband’s pre-meditated divorce, and explains her rationale in her section 7 affidavit,

“67. …[The husband] conveyed to me that there was no need to worry about the future or money because his family has substantial assets for him as he has prepared for the inheritance long ago, he gave up his US status on 2013/2014 to avoid US inheritance tax. He also anticipated receiving large sum of inheritance from his family. His family has a 3-storey house and 2 commercial shops, receiving a rental income of around $250,000 per month, derived from McDonald and another restaurant. And he stands to inherit these assets in future….

74. …

While his mother has held the US passport, but suddenly gave up her US passport on [sic] the year of 2020/2021, [the husband] brushed away the issue and just told that’s for tax issue and refused to talk more. But that timing has matched with the date of the new Will of [the Grandfather], ie July 2021. I believe [the husband] already started planning for the divorce when his father changed the Will on [sic] July 2021 and his mother to inherit most of his father’s wealth instead of [the husband]…It can be seen that [the husband] was the one who prepared to inherit from the family (he gave up US status to avoid inheritance tax on [sic] 2013/2014), [the husband] is also the only son residing in HK to manage the family’s properties, so he will finally have inheritance from his mother, this can also tell why he has not been worried about money, and spent beyond his mean [sic], and repeatedly asking to change [the daughter]to schools that charge more higher fees.”

148.  I do not accept the wife’s case on the Grandfather’s Will, because:

(1) The starting point must be that a third party is free to dispose of or bequeath his own assets in the way they want. And even if a testator (in this case, the Grandfather) had really made a previous Will, he was perfectly entitled to revoke it and make a new one at his own free will;

(2) Hence, it is too far-fetched to suggest that the Grandfather, before his demise, colluded with the husband in so-called changing his Will in order to defeat her ancillary relief claims;

(3) There is nothing illogical and objectionable for a husband (like the Grandfather of this case) to bequeath the majority of his assets and chattels to his surviving wife, ie the Grandmother;

(4) Importantly, in the case management hearing before me, the wife already confirmed that she accepts the husband’s inheritance entitlement of the Grandfather’s assets is “limited to HK$1,000,000 only”. Such concession is duly recorded at the recital paragraph of the Order of 22 December 2023. She should not be allowed to retract from this concession in the trial. The purported explanation that she was a litigant in person as at the said case management hearing is not accepted. The wife is educated and has abundant working experience.

149.  I now turn to the husband’s inheritance prospect of the estate of the Grandmother.

150.  In view of my earlier findings of a very close and loving relationship between the husband and the Grandmother, I accept that it is ”likely” that the husband will inherit some of the Grandmother’s estate upon her demise. This is a possibility that cannot sensibly be ignored.

151.  However, the wife is not able to pass the hurdle of “certainty” and/or “proximity”. It is pertinent to say that the wife has not challenged the husband’s evidence about the Grandmother, ie she is 78 years old, still of good health and active in her social life. The Grandmother is one year younger than the mother in K v K (supra). There is simply no evidence to show that the interest of the Grandmother’s estate would vest in the husband “on a certain future date”. Furthermore, any such inherited assets, if any, would surely be of post separation in nature and thus is too remote to be considered in this section 7 exercise.

P. Needs of the wife and the daughter

152.  It can be seen from the joint (updated) table of agreed and disputed the expenses for the wife and the daughter (dated 16 October 2024) that the parties have dispute to nearly every item therein. However, I will focus on the major items of dispute, and do not intend to discuss those items which are unnecessarily trivial, and/or clearly not commensurate with the marital living standard.

153.  My analysis below should be read together with my findings on the living standard during the marriage set out previously in this judgment.

(i) Rent

154.  It should not be of dispute that the wife and the daughter will be living in an area which is close to the school of the daughter, such as Taikoo Shing, Tai Hang. The main dispute boils down to how big the flat should be. The wife says that it should be a 3-bedroom’s flat which will cost $28,500 to $33,500 per month. The husband argues that it is sufficient for them to live in a 2-berdoom’s flat at $22,500 per month.

155.  In my view, the former matrimonial homes were meant to house 3 or 4 persons (depending on whether a full-time maid was hired). With the breakdown of the marriage, the wife should not expect that her future accommodation would be as big as the former matrimonial homes.

156.  That said, however, the Accommodation Order was agreed upon the stance of the husband that the wife and the daughter would move out of the Jardine’s Lookout property and rent another accommodation of monthly rental at $28,500, and that she should bear the extra rent if she decided to rent a bigger flat of 800 sq feet or more[27]. In my judgment, this is telling as to the accommodation standard that the husband has in mind for the wife and the daughter.

157.  Further, I must remind myself of the words of the learnt authors of Rayden and Jackson on Relationship Breakdown, Finances and Children in explaining the welfare of a child and the accommodation need at Vol 1 at §11.364:

“…in considering the welfare of a child, the court should where possible avoid making an award which provides one parent with far superior accommodation to the accommodation of the other parent: it is not in a child’s interest for him to view one parent as the poor relation of the other.”

158.  I have already found that the husband is unlikely to move out of the Shouson Hill property. Indisputably, the Shouson Hill property is a 3-storey house of 5 bedrooms, a maid’s quarters and a garden. During staying access, the daughter has her own bedroom which is filled with all kinds of girlie toys and decorations.

159.  In my judgment, it is not in the daughter’s best interest to face with a huge divergence in the accommodation standard between the households of the wife and of the husband. Going forward, the daughter should have her own bedroom in the wife’s household.

160.  Balancing all factors, including the need to house a maid (because it is the husband’s case that the wife should go back to work, with the assistance of a maid), I am of the view that a flat in Taikoo Shing or nearby area, of saleable area of around 700 sq feet, comprising of 2 bedrooms plus a smaller multi-purposes cubicle (which may turn into a maid’s room), is commensurate with the marital living standard and is in the best interest of the daughter. As such, the husband’s suggested rent of $22,500 is on the low side. Doing the best I can, I will take the current rent of $30,000 as the accepted rent for the wife’s household way forward.

(ii) Food

161.  I think both parties have either exaggerated or downplayed the expenses for food. I am of the view that a broad brush figure of $8,000 per month is more compatible with the living standard during the marriage.

162.  The need to feed the maid to be hired should not be forgotten. I shall hold the husband to his undertaking to pay the food allowances to the maid, currently fixed at not less than $1,236 per month by the government.

(iii) Household expenses

163.  The wife claims that her household expenses have increased from $3,000 per month (as at September 2022) to $4,238 (as at May 2024). In her reply to the husband’s questionnaire, she explains the breakdown of $3,000 to include cleaning products ($100), daily-use items such as shampoo and toothpaste ($300), RAT test kits ($500), internet ($213), supplements ($500), dry cleaning ($200), floor mat/bedsheet/ towels/pillow/ electronic appliances/furniture/desk/cabinet ($500).

164.  However, RAT test kits are no longer necessary. It is not accepted that the wife needs to buy items such as bedsheets, pillows or other furniture every month or every year. Subject to these comments, I would allow $1,500 for this item.

(iv) Car expenses & other transport expenses

165.  The wife seeks a total of $10,422 per month to cover her car expenses of renting a car parking space, vehicle licence, gas and maintenance ($6,422), her other transport costs ($1,000), and gas refill and transport costs of the daughter ($3,000). I shall discuss these items altogether as follows.

166.  A few months before this trial, the wife bought a second-hand BMW in April 2024 at $214,737 (including the price of the car, associated transfer fees and insurance). She attempts to explain in her affidavit that the purpose of buying a car is mainly “for the purpose of transporting the child to school and various classes”, and that “Taikoo is a busy place, often with long queues for taxi and other transportation in peak hour[s], which can make the area crowded and the child feel uncomfortable”.

167.  Upon considering all evidence and submission, I fail to see why there is an imminent need for the wife to buy the BMW car in April 2024, amidst her repeated complaints of insufficient interim maintenance provided by the husband since the commencement of this divorce case. Further, I do not believe that taking uber or taxi in peak hours will make the daughter feel uncomfortable. Notably, the social investigation report reveals that the daughter is a cheerful and relatively creative child, with “a good problem-solving capacity”[28]. It is common knowledge that nowadays, uber or taxi service can be pre-booked online, such that there is no need to queue up at the taxi stand or on the street anymore.

168.  Moreover, putting the wife’s case to its highest, she did not have the enjoyment of having her own car during the whole period of the marriage. According to her, she used to take uber or taxi when she went out with the daughter before 2019. She began driving the BMW car in 2019, mainly for transporting the daughter to specific locations such as school, extra-curricular classes, the Hong Kong Country Club and nearby places. They continued to take taxi or uber when they went to other places.[29] This BMW car was sold shortly before the husband filed his petition for divorce in 2022.

169.  With my finding that the wife should return to work and with the assistance of a maid, I take the view that for practical and logistic reasons, there is no need for her to keep the car. The maid can take the daughter to and from school, and between activities by uber or taxi, and so does the wife when she goes to work, with occasional use of public transport when it is more convenient to do so. Keeping a car at average monthly expenses of $7,922, plus additional transport costs of $2,500 for both the wife and the daughter are, in my view, on the high side, which cannot be sustained in the long run after the family has broken down into 2 separate households.

170.  The husband’s counter suggestion of $500 for the wife, and $818 for the daughter is definitely too much on a low side, especially when he claims in his own Form Es that his monthly car and other transport expenses amount to $5,840 (his 1^st Form E) or $3,100 (his 2^nd Form E). His suggestion that they should use public transport only is firmly rejected.

171.  I will give a broad brush figure of $3,000 each for the wife and the daughter to cover their respective transport expenses, including taking taxi/uber from time to time. Her car expenses are rejected.

(v) Domestic helper

172.  The family had the service of a live-in maid during the marriage from time to time until 2018 when the wife stopped working. Currently, the wife hires a part-time cleaner at $1,560 per month.

173.  The husband agrees that if the wife goes back to work, a live-in maid is necessary to assist her. He undertakes to bear half of the maid’s salaries and associated expenses that are required to be paid under the employment law, with the remaining half to be paid by the wife.

174.  However, I rule that the maid’s expenses should be wholly regarded as the daughter’s expenses, to be paid wholly by the husband. I agree with the wife that her income is not sufficient to cover the maid’s expenses. I will therefore hold the husband to his undertaking to pay all the expenses of hiring a domestic helper, including wages, food allowances, insurance, agency fees, air tickets and long service payment, if any.

175.  The maid will be selected at the choice of the wife. But in order to avoid any possible dispute of constant/repeated change of maid(s) within a short period of time, to be balanced against the possible reality of a chosen maid not working up to a reasonable standard, I will say that the wife would be allowed one chance of changing a maid within a 2-year’s contract period. I urge the wife to exercise her care and good sense in choosing a maid for her household.

(vi) Other items of general expenses

176.  I fail to see why the wife needs to incur insurance premia of $1,257 under her general expenses for a rented accommodation. Also, this is a new item not claimed in her 1^st Form E. I will not allow this item.

177.  The wife claims 2 other new items in her 2^nd Form E, namely red packets and gifts to her family/relatives during Chinese New Year. There is no evidence to prove that the wife bought gifts to his family/relatives during the marriage. The expenses for the red packets should be absorbed by the wife out of her own capital way forward.

178.  In her 1^st Form E and reply to the husband’s questionnaire, the wife includes electronic appliances as one of the household expenses under the sub-item of “other” which she gives a figure of “$500” only (See: [163] above). However, the expenses for electronic appliances suddenly and unreasonably soars up to $2,254 per month, which is rejected by the court. In any event, this item of expenses is already included under the item of “household expenses”.

179.  In respect of the item of “Tech” (such as home camera, software fee, printer and ink), I am inclined to put this under the daughter’s expenses of computer for i-learning and ipad, for the obvious reason that she would need computers in her study.

(vii) Wife’s personal expenses

180.  Meals out – Given that (in fact it is also the husband’s case) the wife should return to work, then it is not fair for him to suggest that a working woman only needs to spend $800 per month for meals out. That would allow her merely $36 per working day for lunch (assuming there are 22 working days per month), not to mention that she may also eat out on weekends. To reflect the living standard during the marriage, I would allow the figure ($3,372) suggested by the wife.

181.  Clothing/shoes, personal grooming, entertainment and gym centre day pass - I am of the view that the wife’s claims for her clothing/shoes ($5,356), personal grooming ($3,000) and entertainment ($2,000), all added up to $10,356 per month, is excessive and not in line with the living standard during the marriage. Further, I have the opportunity of observing the wife while she was in the witness box. She wore in normal and day-to-day style clothing, with minimal make-up. This does not sit well with her claim of the above expenses.

182.  However, the husband’s counter-suggestion of merely $2,800 is far too low and distant from the marital living standard. Besides, upon dissolution of their marriage and her disqualification to the Hong Kong Country Club membership, there is nothing objectionable that the wife should be able to enjoy some private gym service at $750 per month.

183.  Since it is expected that the wife should return to work, I will allow a total sum of $7,000 per month for these items.

184.  Holidays - I have already, after giving leeway for travel restrictions during the Covid-pandemic, ruled that the living standard of the parties should allow the wife to travel with the daughter once a year to Asia, such as Japan, which would usually take not more than a week. The husband’s suggested budget is too tight. I will award a broad brush figure of $15,000 per year, or $1,250 per month. The wife’s claim for $6,016 per month (for herself only) is not accepted.

185.  Medical/dental and insurance - The husband does not dispute that the wife has 2 insurance policies, namely AIA life insurance (with saving components) and AXA health insurance, but is of the view that he should not be made to continue to pay for these insurances upon their divorce, given that he has made capital advancements in millions to her. I agree with the husband that way forward, the wife can and should pay the premia of her insurance (one with saving components) at $1,033 per month out of her own capital.

186.  With a medical insurance in force, the wife has not provided sufficient elaboration or explanation why her medical/dental expenses come up to $2,200 per month. Her two Form Es have not stated that she has any physical or mental illness. On the other hand, the husband says in his oral evidence that he used to pay for the dental expenses of the wife, and that he accepts that her likely medical/dental expenses would be around $500 per month. I accept the husband’s figure.

187.  Contribution to parents - The wife accepts in her oral evidence that her contribution to her parents ($2,000) can be dispensed with. I agree.

188.  Computer/smartphone - These are rather durable but necessary items, which need not be renewed on a yearly basis. There is no reason why the wife cannot have shared the daughter’s computer(s). Further, the evidence does not show that holistically, the wife bought a new smartphone/computer each year during the marriage. In any event, she has just bought 2 new iphones in late 2023 for $17,098 for her and the daughter. I would allow $250 per month for the wife’s smartphone(s).

189.  Donation - I accept that the wife has been making donation for a long time and during the marriage. This item will be allowed.

(viii) Daughter’s expenses

190.  In the following, I shall focus on the major disputed items of more substantive sums.

191.  Extra tuition fees - It is indisputable that the daughter is currently taking Chinese, Mandarin and piano classes. The dispute concerns the amount of such expenses. Their difference is not big. I will point out that the piano classes are charged at $475 per lesson, and depending on the number of weeks in a month, the monthly amount would vary, and may not be $1,900 per month as suggested by the husband. Also, with the passage of time, the fees per lesson may be adjusted by the tutorial schools.

192.  Looking at the matter in the round, I think this can be solved by way of an undertaking from the husband to pay/reimburse the wife for these 3 existing tuition classes of Chinese, Mandarin and piano (this would also cover any increase of expenses per lesson way forward).

193.  The other dispute is about the swimming classes. The husband objects to them because the wife arranged them to take place during his access time, without his prior consent. I agree that the wife should not have arranged any extra-curricular or extra tutorial classes during the husband’s access to the daughter, unless agreed by him. That said, it is in the interest of the daughter to learn how to swim. This can be solved by the husband’s arranging the daughter to learn swimming at the South China Athletic Association (SCAA), at a time picked by the wife but which must not be within his access time unless with his prior consent. I will hold the husband to an undertaking to bear the expenses of the swimming classes.

194.  Stationary/exercise books/story books - The wife explains that the daughter’s school requires the students to bring one story book every day to read in the morning reading session. However, it does not necessarily mean that the daughter needs to purchase a new story book for each reading session. She may sometimes buy new ones; she may also borrow from public libraries from time to time. I consider that a broad brush figure of $500 under this item would be sufficient and fair.

195.  Medical/dental - At present, the daughter is under the cover of the husband’s health insurance. The husband has only disclosed the annual statements of his insurance policies in his two Form Es, but not the insurance contracts, such that I do not know exactly what illnesses/medical treatments are covered.

196.  However, the wife says that the daughter’s health insurance with AXA covers hospitalisation but not clinic visits. I have no reason to doubt what the wife says. Further, the wife asks that the medical insurance be transferred to her name.

197.  I think it is fair to deal with the medical and dental expenses of the daughter in the following ways:

(1) I shall hold the husband to his undertaking to pay for the dental treatments of the daughter, provided that such dental treatment is advised by a licensed dentist in writing;

(2) As to hospitalisation expenses, I will hold the husband to his undertaking to pay for all hospitalisation expenses, provided that such treatment is advised by a licensed medical doctor in writing. I do not see any need to transfer the daughter’s medical insurance to the account of the wife;

(3) For clinic consultations, the wife’s main concern is the skin allergy of the daughter, as well as some unforeseen/emergency medical needs. The wife also says that the daughter needs allergy cream, over-the-counter Chinese medicine, vitamins, supplements etc. With the dental and hospitalisation expenses covered by the undertakings of the husband, I am of the view that a monthly sum of $500 would be sufficient to cover clinic visits and other related medicine, bearing in mind that according to the wife, the daughter “rarely had to visit doctor” and is “generally healthy”.

198.  Extra-curricular activities - The wife claims $1,164 for the daughter’s extra-curricular activities, which is “12 months average of July-Aug summer activities costs”[30] and includes visits to trampoline centre, climbing sessions, playdates at playhouses, Disneyland etc during summer.

199.  I accept that since the wife’s membership of the Hong Kong Country Club was cancelled by the husband, she can no longer go with the daughter to participate in the kids entertainment or festive activities organised by the Club. As a result, she has to arrange alternative forms of activities for the daughter from time to time.

200.  The husband argues that such activities arranged by the wife for the daughter will not be on all weekends and during all of the daughter’s leisure time, because the daughter stays with him on alternate weekends and half of the school’s long holidays under the access arrangement. While this argument may have some force, it is noted that according to the husband’s own Form Es, he says that the extra-curricular activities of the daughter (including summer activities) come up to $5,098 per month (as at 24 August 2022 in his 1^st Form E) or $6,220 per month (as at 10 May 2024 in his 2^nd Form E).

201.  Balancing all evidence, I conclude that the wife’s figure of $1,164 is accepted.

202.  Entertainment & presents - The wife says that the daughter needs $3,460 per month for her entertainment, such as birthday party ($300), theme parks ($568), toys and presents ($1,250) and other activities ($1,342).

203.  First, I note that visits to Disneyland are also included as an item of claims under extra-curricular activities.

204.  Second, the wife proffers to provide some receipts to support her case. For example, she provides 3 receipts of a game centre in Lohas, Tseung Kwan O called Namco.[31] The 3 receipts are all dated 2 November 2024 (Saturday) and printed respectively at 4.29 pm (expenses at $500), 5.01 pm (expenses at $250) and 7.29 pm (expenses at $300), which means that a total sum of $1,050 was spent within a merely of 3 hours. This, if true, is excessive. There is another receipt dated 2 October 2024 and printed at 7.05 pm with expenses at $300[32], but, strangely, 2 October 2024 is not weekend, nor a public holiday. For another example, the wife provides an invoice from Sweet Factory dated 30 April 2024 for the purchase of a cake plus delivery charges at $880.[33] The daughter’s birthday is on 2^nd May. Yet and strangely, she provides another invoice from the same bakery for a cake at the same price, the date of which is 3 May 2024[34], by which time the daughter’s birthday was over.

205.  I am thus very sceptical that the daughter’s entertainment and presents would cost as much as $3,460 per month.

206.  That said, I reject the husband’s suggestion of merely $600 per month, all inclusive of summer extra-curricular activities and entertainment/presents, which surely is too much on the low side and not reflective of the marital living standard.

207.  I am of the view that a sum of $1,500 per month is more reflective of their living standard.

208.  Holidays - I repeat my view set out at [184] above, which applies equally to the daughter’s holidays expenses. A sum of $1,250 per month will be allowed.

209.  Clothing/shoes and eye-glasses - I acknowledge that the daughter is a growing child. However, it is not the marital living standard to buy lavish and expensive wardrobe for her. A sum of $1,500 per month for her clothing and shoes is in my view sufficient and reflective of the marital living standard.

210.  The wife says that the daughter has astigmatism since she was 4 years old. She has to bring the daughter for an eye check every 6 months, and the daughter has to change her eye-glasses regularly which costs $300 per month. The husband, however, says that an all-inclusive monthly sum of $800 is sufficient to cover the daughter’s clothing/shoes and eye-glasses, which I will not be hesitant to reject. I accept the wife’s figure.

211.  Meals out of home, snacks and drinks outside - The wife claims a sum of $3,372 per month for such items. The husband counter-suggests $800 per month.

212.  There is insufficient evidence to support that the parties, on a regular basis, dine-out 1-2 times during weekdays and 1-2 times during weekends in their marital life. Further, as the daughter grows up and promotes to higher grades in the primary school, her study and homework may not allow her to eat out that often during weekdays. And when a full-time maid is in service, home-made meals can easily be prepared by the maid. I will award a broad-brush figure of $1,500 per month for this item.

213.  Computers and ipads - I reject the husband’s suggestion that this item of expenses should be shared equally between the parties. The wife claims $600 per month. This item should be read together with [179] and [188]. I conclude that a sum of $500 per month is sufficient and fair.

Q. A summary of their expenses and needs

214.  I set out a summary of the expenses of the wife and the daughter allowed by me in the following table for easy reference:

Items	Wife’s claimed sum	Husband’s suggestion	Court’s ruling/comment
General expenses
Rent	$28,500-$33,500	$22,500	$30,000
Utilities	$2,028	$2,028 (agreed)	$2,028
Food	$11,738	$6,000	$8,000
Household expenses	$4,238	$800	$1,500
Car expenses	$6,422	$0	NIL
Insurance	$1,257	$0	NIL
Domestic helper	$1,560 (part-time cleaner)	$0 (but give an undertaking to pay for 50% of the helper’s costs if and when the wife engages a full-time maid)	Husband’s undertaking to pay the expenses of hiring a full-time maid, including wages (currently $5,100), food allowances (currently $1,236), insurance, agency fees, air tickets and long service payment
Lai see during Chinese New Year	$200	$0	NIL
Gifts to family/ relatives during Chinese New Year	$174	$0	NIL
Electronic appliance for home	$2,254	$300	Included in “household expenses”
Tech (home camera, software fee, printer & ink)	$500	$0 (covered under “electronic appliance”)	Included under daughter’s expenses of “computer for i-learning & ipad”
	$58,871-$63,871	$31,628	$41,528 PLUS undertaking (of at least $6,336 if a full-time maid is hired)
Personal
Meals out	$3,372	$800	$3,372
Transport	$1,000	$500	$3,000
Clothing/ shoes	$5,356	$1,000	$7,000
Personal grooming	$3,000	$500
Entertainment/ presents	$2,000	$1,300
Gym centre day pass	$750	$0
Holidays	$6,015.80	$1,000	$1,250
Medical/ dental	$2,200	$500[35]	$500
Insurance	$1,033	$0	To be paid by wife out of her capital assets
Contribution to parents	$2,000	$0	NIL
Computer/ smartphone	$1,000	$0	$250 for smartphone
Donation to World Vision	$490	$0	$490
	$28,216.80	$5,600	$15,862
Daughter
School fees	$6,000	$6,000 (agreed but paid by way of undertaking)	$6,000 - Husband’s undertaking to pay school directly
Extra tuition fees	Chinese: $1,408.30	Chinese: $1,300	$6,088 - Accept wife’s figures (except swimming) but to be paid by way of husband’s undertaking upon production of receipts   Husband’s undertaking to pay swimming classes which shall take place at SACC
	Mandarin: $2,470	Mandarin: $1,980
	Swimming: $426.70	Swimming: $0
	Piano: $2,058.30	Piano: $1,900
	Others (piano books, concerts, competition) : $152	Others: $152 (agreed)
		(All to be paid by way of undertaking)
School books/ stationery	Textbooks: $333	Textbooks: $333 (agreed)	$393 – Husband’s undertaking to pay directly to school
	School materials: $60	School materials: $60 (agreed)
		(All paid by way of undertaking
	Adventure magazine: $100	Adventure magazine: $100 (agreed)	$100
	Stationery/ exercise books/ story books: $953	Stationery/ exercise books/ story books: $200	$500
Transport to school	$1,500 (gas refill)	$318	$3,000
Other transport	$1,500	$500
Medical/dental	$1,500	$200	Husband’s undertaking to pay dental expenses, upon written advice of a licensed dentist Husband’s undertaking to pay all hospitalisation expenses, upon written advice of a licensed medical practitioner Clinic visits : $500
Extra-curricular activities	$1,164	$0 (covered by “entertainment/ presents”)	$1,164
Entertainment/ presents	$3,460	$600	$1,500
Holidays	$3,702	$1,000	$1,250
Clothing/shoes	$2,696	$800	$1,500
Glasses	$300	$0 (covered under “clothing/ shoes”)	$300
Insurance	$528.60	$528 (paid by way of undertaking)	About $528 to $529 - Husband’s undertaking to pay insurance premia
Uniform	$500	$200 (paid by way of undertaking)	$500 – do not accept undertaking from husband
Meals out/snacks and drinks outside	$3,372	$800	$1,500
Computer for i-learning & ipad	$600	(shared equally upon production of receipts)	$500
Donation for school (Christmas, funfair)	$150	$0	$150
Piano rental	$350	$0	$350
	$35,283.90	$4,518 (excluding undertakings) $16,971 (including undertakings)	$12,814 PLUS undertakings (currently known amount is $13,009)
GRAND TOTAL:	$122,371.50 -  $127,371.50	$41,746 (excluding undertakings) $54,199 (including undertakings)	$70,204 PLUS undertakings currently known amount of $13,009 (if a maid is not hired), or of at least $19,345 (if a maid is hired)

215.  Apportioning the above expenses between the wife and the daughter in accordance with the comments made by me earlier in this judgment, their needs way forward are like these:

(1)	Wife:	$20,764 + $15,862 = $36,626
(2)	Daughter:	$20,764 + $12,814 = $33,578 (rounded up to $33,600) PLUS husband’s undertakings

216.  The wife’s needs going forward are $36,626 per month. Her monthly income is taken to be $25,000 per month. There is a shortfall of $11,626 per month. She will be 40 by January 2026. There is a shortfall of about $2,813,492 up to the normal retirement age of 60.[36]

R. Needs of the husband

217.  The husband’s case on his monthly expenses are set out in the following table:

Items	1st Form E (dated 24 August 2022)	2nd Form E (dated 10 May 2024)
General expenses	$41,848[37]	$12,600
Personal expenses	$5,509	$9,200
Daughter’s expenses	$14,250	$20,326
Total:	$61,607	$42,126

218.  Given my findings on the financial contributions from his family at [121] to [136] above, I find it unnecessary to analyse the general expenses of the husband. I do not accept that the husband needs to pay any general expenses of the Shouson Hill property, nor does he need to pay for the car expenses.

219.  The daughter’s expenses are already discussed in the earlier part of the judgment. The only item paid by the husband for the daughter while she is at the Shouson Hill property is the home tutoring ($4,800). There is no obvious challenge to this item by the wife. I find no reason to reject this item.

220.  As to the husband’s personal expenses in his 2^nd Form E ($9,200), I will rule that the husband’s holiday expenses way forward should be $1,000 per month instead of $2,100 per month, which brings his total personal expenses to $8,100 per month. Going forward, his total monthly expenses would be $12,900 per month ($8,100+$4,800). His income is able to cover his expenses and all of the daughter’s expenses (including the expenses to be paid by way of undertakings), roughly of at least $59,509 per month (if a maid is not hired) or a least $65,845 per month (if a maid is hired). It is more likely than not that he would be able to save up some of his salary after meeting all the expenses. Furthermore, I have already found that if the husband is unable to meet his ends, it is more likely than not that the Grandmother will come to his financial assistance.

S. Whether sharing principle applies

221.  In LKW v DD (supra), the Court of Final Appeal explained at §80 to §83 that if surplus assets would remain after the parties’ needs have been catered for, the next step in the exercise should generally be for the court to apply the sharing principle to the parties’ total assets, leaving the “needs” question previously considered to be deal with under that principle. It is clear to me in this case, there is surplus assets after considering the needs of the parties. I am of the view that the equal sharing principle shall apply unless there are good and articulated reasons not to do so.

T. Any reasons for departing from equal sharing

(i) Compensation

222.  I take note that the wife once suggests in her affidavit that the husband should “compensate” her for giving up her career for the benefit of the family.[38] However, in this trial, Ms Chan for the wife has not pursued this point.

223.  But for avoidance of doubt, I will point out that “compensation” as a material factor for departing from an equal sharing of assets is discussed thoroughly by the Court of Final Appeal in LKW v DD (supra) at §119 to §130. I only need to quote the comment of Riberio PJ as follows,

“126. In my view, the risk of double-counting in ‘clean break cases’ arises not merely because of a potential overlap with financial needs but because compensation for “relationship-generated disadvantage” is, like “contribution”, already intrinsically factored in as part of the sharing principle. By recognizing that a spouse who has given up a potentially lucrative career to take up a traditional role within the family should enjoy equal status with the breadwinner and should receive an equal share of the assets unless there is good reason to the contrary, the sharing principle gives effect in principle to this form of compensation.

127. I therefore find it difficult to see how double-counting can be avoided if some additional premium is to be attributed to the lost opportunity of an independent lucrative career.” (emphasis added)

224.  In view of the above comment of His Lordship, I find it difficult to see how the wife can successfully persuade the court that she should get a larger share of the assets in order to “compensate” her for giving up her career. Further, I have ruled that it is never her intention or plan that she would be a full-time housewife and never work again.

(ii) Unilateral assets

225.  Up to his opening submission of the trial, the husband still asserted that the inheritance of $1 million from the estate of the Grandfather, and the gold items and Rolex watches gifted by the Grandfather/Grandmother and the great grandparents are non-matrimonial assets unilaterally acquired by him, such that these assets should not be counted for equal sharing. However, he later revised his stance and conceded in the afternoon of Day 1 of the trial that the inheritance and the gifts would be put into the pot for equal sharing, by way of his latest open proposal.

226.  I hold the view that this is a correct concession to make on the part of the husband, especially in view of the following matters:

(1) He has a much higher earning capacity than the wife;

(2) The wife’s income is not able to satisfy her own needs, in which case fairness dictates that an asset, even if non-matrimonial in nature, may be subject to sharing;

(3) He strives to have a clean break with the wife.

(iii) Financial needs of the wife

227.  I have already analysed and made findings on the earning capacity of the wife at [103] and [107], and summarised her needs at [214] to [216] of this judgment.

228.  Simply, even upon her return to the labour market, her income of $25,000 per month is insufficient to cover her monthly expenses of $36,626. There is a shortfall of $2,813,492 up to the normal retirement age at 60. I am of the view that this is clearly a factor warranting a departure from an equal sharing of their assets.

(iv) Unreasonable litigation conduct

229.  In his opening submission, Mr Chan for the husband argues that the wife’s unreasonable litigation conduct “has consumed an unproportional amount of the husband’s assets by way of legal costs on both sides”, which justifies “an add-back on her end”, or “a departure”.

230.  However, in the closing submission, Mr Chan somewhat adjusts his submission to say that the unreasonable litigation conduct of the wife shall “neutralise” her request for a larger share of their assets. I take it that the husband is now using “litigation conduct” as a “shield”, but not as a “sword”, to argue against any departure from the equality sharing principle. Some of the examples of the wife’s litigation conduct given by Mr Chan are:

(1) Her refusal to accept the husband’s open offer contained in his letter dated 26 October 2022, in which he suggested that (i) his $1-million inheritance entitlement of the Grandfather’s, and gold items and Rolex watches etc gifted by his family should be carved out as non-matrimonial assets; (ii) he shall pay a lump sum of $7.1 million to the wife as the equalisation money on a clean break basis; (iii) he shall pay for the daughter’s school fees; (iv) both parties shall share equally the daughter’s share of rent, the salary of the maid, and expenses of extra-curricular activities/extra tuition classes, to be paid out of each party’s distributed assets;

(2) Her request to add back certain portion of the husband’s legal costs into the pot for sharing. But in fact, it is due to her unreasonable pursuit to minimise the husband’s time with the daughter, such as last minute change to access arrangement; twisted interpretation of access orders; trickily became unrepresented right before the children dispute resolution hearing etc, that has caused both parties to incur around millions of dollars solely on child matter;

(3) Her unreasonable stance in insisting to share the non-matrimonial assets of the husband;

(4) Her unreasonable financial conduct of moving to a bigger flat at the husband’s expense but without his prior consent, and buying a BMW car despite her alleged financial difficulty.

231.  Likewise, the wife says that the husband is guilty of litigation misconduct. On her behalf, Ms Chan submits that the husband’s litigation conduct is “inexcusable”, such as his late disclosure of the bank statements of the Wing Lung Bank current account; his suggestion that the financial assistance from his family is not one of the issues in dispute. Although the general approach is that litigation conduct will be reflected in a costs order, Ms Chan argues that the husband’s litigation misconduct throughout the proceedings has led to a depletion of the matrimonial assets that cannot be remedied by an order for costs. Counsel also point out misconduct is a relevant factor that the court should consider even in a “needs” case: JTMW v NAV, FCMC 8504/2017, [2022] HKFC 46 at §62-§69.

232.  In BC v MSH also known as H, MSO & Others [2024] 1 HKLRD 441, [2023] HKFC 222, I summarised 4 distinct scenarios where “conduct” is relevant in a financial remedy cases. One of the scenarios is “litigation misconduct”, and if proved, would be severally penalized in costs, but not so much as to affect the substantive disposition.

233.  With respect to Mr Chan, I fail to see how the wife should be criticized for not accepting the husband’s open offer of 26 October 2022. Merely on the husband’s own case, the wife is only able to earn around $25,000 per month, a sum not even enough to cover her own needs, let alone to bear half of the expenses of the daughter suggested by the husband in his said open offer. The husband’s suggestion that the wife should immediately dive into her capital, after sharing of the parties’ assets, is not an attractive proposal, in view of the husband’s more superior earning capacity and financial assistance from his family.

234.  The submission on costs incurred in the child proceedings by the respective parties is not accepted by the court, either. Importantly, a “no costs order” was made in the CDR upon the consent of the parties. It follows that neither party should be allowed to re-argue on the costs of the child proceedings to the extent that such costs were unreasonable and should be taken into account in the ancillary relief proceedings.

235.  The husband’s submission on the non-matrimonial nature of the inheritance of the Grandfather and the gold items and Rolex watches gifted to him by his family, and the wife’s alleged unilateral decision to move to a bigger rented flat during these proceedings is already sufficiently dealt with in the earlier parts of this judgment. Simply put, I do not accept the husband’s submission.

236.  In conclusion, I reject that the litigation conduct alleged by the parties against each other constitute a factor for departure of the equal sharing principle.

(v) Length of marriage

237.  I have already given an analysis on the length of marriage at [37] to [43] of this judgment, which I need not repeat here. This is not accepted as a departing factor.

U. The 2^nd MPS Summons?

238.  In the 2^nd MPS Summons, the wife seeks an undertaking from the husband to meet the following expenses:

(1) full rent and utilities of her current accommodation in Lei King Wan, or similar accommodation in the event that the lease of the Lei King Wan property cannot be renewed;

(2) school fees and extra tuition fees of the daughter;

(3) repayment of her HSBC credit card instalment of $9,528.93 per month, and a one-off sum of $97,261.6 for repaying her credit card payment with the Standard Chartered Bank.

239.  On top of the above undertakings, she prays for an order that the husband should pay her:

(1) maintenance pending suit in the sum of $42,400 per month;

(2) interim maintenance of the daughter in the sum of $37,307 per month;

(3) the above sums should be back-dated to the date as deemed fit by the court;

(4) moving costs of $55,000.

240.  In the call-over hearing of 22 August 2024, the parties settled partially the 2^nd MPS Summons. On top of reimbursing the wife a sum of $25,000 on her moving costs and estate agency fee in respect of the Lei King Wan property, the husband undertakes to:

(1) make a capital advancement of $800,000 to the wife to cover her household, personal expenses and legal costs within 7 days;

(2) continue to pay the rent of the Lei King Wan property (then standing at $30,000 per month) and its utilities at $2,028 per month;

(3) pay the school fees of the daughter;

(4) pay the extra tuition and extra-curricular activities (Chinese, Mandarin and piano classes), school books and materials, and AXA medical insurance of the daughter.

241.  With the arrangement set out in the preceding paragraph (especially the capital advancement of $800,000 to cover the wife’s household, personal expenses and legal costs) and the ancillary relief orders given in this judgment, I am of the view that it is not necessary or fair for me to make a separate and/or additional order for the 2^nd MPS Summons.

V. Final adjustment to the pot?

242.  On behalf of the husband, Mr Chan invites the court to deduct from the husband’s ledger, before equalisation, a sum equivalent to the number of months from the trial to the delivery of the judgment at $43,736 per month. Counsel runs his argument in this way:

(1) Since there will be a time gap from the date of the trial to the date of the delivery of the judgment, there will be a depletion of assets on the part of the husband for the expenses of himself and of the wife. Counsel submits that this will amount to $43,736 per month;[39]

(2) If this monthly sum of $43,736 is not deducted from the husband’s ledger, then the husband would be prejudiced to equalise his assets, part of which has already been consumed by the wife and the daughter before the equalisation.

243.  Ms Chan for the wife has not made any specific response to this line of argument in her closing submission in reply.

244.  I will boldly reject Mr Chan’s argument. According to LKW v DD (supra), the assets of the parties are calculated as at the date of trial. Mr Chan has not provided any authority in support of his argument. Further, as the court has refused to make a separate order for the 2^nd MPS Summons, it is fair that no separate adjustment should be made to the husband’s ledger for the payment he has made during the intervening period of the date of trial and the date of judgment.

245.  I go further to say that with the findings of the court that the husband is receiving some financial assistance from his family, it is highly suspicious, and thus not accepted by the court, that the amount of assets under the husband’s ledger would be reduced by the amount of monthly expenses of $43,736.

W. Deciding the overall result

246.  I now turn to step 5 in LKW v DD (supra). Broadly, I need to consider what should be the overall ratio of division of assets, whether periodical payment should be ordered in favour of the wife, and whether the husband should bear all of the daughter’s expenses way forward.

247.  In LKW v DD (supra), the Court of Final Appeal expressed at §131 that,

“…the court is not bound to depart from equality in the division of the parties’ assets even if one or more of the factors considered are engaged on the facts. The weight to be given to such considerations is a matter of discretion for the court. Stepping back and looking at the overall impact of the factors found to be relevant, the court may decide that certain factors carry such weight that a departure from equality is called for. The decision is fact-specific and discretionary….” (emphasis added)

248.  In the present case, there are ample facts and factors which makes it fair to depart from equal sharing of the parties’ assets.

249.  The husband was the main financial provider for the wife and the daughter during the marriage. In addition to the financial assistance from his family that he will continue to enjoy, he is regarded as having much higher earning capacity than that of the wife. As explained by Moylan LJ in Miller v Miller; McFarlane v McFarlane [2006] 2 AC 618 at §132, although earning capacity is not an asset that can be shared, it is a factor that the court may consider whether to depart from equal division of the matrimonial assets.

250.  Importantly, even when the wife resumes working, her income is not sufficient to cover her own needs. Her financial needs up to the normal retirement age, after taking into account her monthly income, is capitalised at $2,813,492. This roughly accounts for 23% of their total assets.

251.  Stepping back and looking at the overall impact of all the relevant factors, I am of the view that the wife should be allotted 73% of the parties’ total assets. In this way, it is unnecessary for her to dip into her allocated assets to satisfy her needs before her normal retirement, such that upon her retirement, she would have the allocated assets together with any interest earned thereon, and the mandatory provident fund that may be accumulated during her working life, for her disposal.

252.  This allotment to the wife will achieve a “clean break” between the parties and provide a way for them to move on with their own lives. The consideration and legal principles of “clean break” is discussed by me in LSL v WYF [2023] HKFC 76, [2023] HKFLR 199 at §74 to §86. Besides, Baroness Hale in Miller/McFarlane (supra) also strived to explain these (which I would aptly adopt),

“126. …Nor in many cases was it desirable to perpetuate their mutual interdependence. The whole point of a divorce is to enable people whose lives were previously bound up with one another to disentangle those bonds and lead independent lives...”

253.  In so far as the maintenance of the daughter is concerned, the overall evidence is very clear that there is no extra room for the wife to support the daughter financially out of her monthly income. Moreover, for the reasons stated above, it is not accepted by the court that, if a clean break is to be ordered, the wife should utilize her allocated assets to support the daughter. In my view, the husband should take full responsibility of all of the daughter’s expenses.

254.  For reasons set out above, the wife should take 73% of the total net assets of $12,046,033. She already has net assets of $862,281, and thus the husband shall pay her a lump sum of $7,931,323, which shall be, for convenience, rounded up to $7,932,000, on a clean break basis. In the whole circumstances of the case, I regard it as a fair financial outcome, which will enable the parties to move on with their lives.

X. Costs

255.  As to the costs of the ancillary relief proceedings, I understand that the husband is very adamant in seeking costs against the wife, due to his allegation of her litigation conduct. I shall reserve the question of costs of the ancillary relief matters, including this trial, for further argument if necessary. However, I do urge the parties to take into account the observations of this court made in this judgment to see if they would come to an amicable solution on the costs issue. At first blush, neither party seems to be an overall winner of this ancillary relief trial.

256.  I thus allow the parties 28 days to attempt to agree on the issue of costs of the ancillary relief proceedings. They shall then report to the court by way of a joint letter on their agreement on costs, or alternatively, their respective stance on costs, upon which the court will give further directions.

Y. Conclusion

257.  Due to the matters set out aforesaid, I will make the following order:

(1) The husband shall pay the wife for the maintenance of the daughter in the sum of $33,600 per month commencing from the 1^st day of the month immediately following the grant of decree absolute and thereafter on or before the 1^st day of each succeeding month until the daughter reaches 18 years of age or completes her full time education (1^st degree), whichever is the latter. Such payment shall be made into the wife’s designated bank account (details to be provided in the draft order);

(2) The husband shall pay the wife a lump sum payment of $7,932,000, on a clean break basis, within 14 days upon the grant of decree absolute;

(3) The parties’ respective claims for ancillary relief against each other, if any, shall stand dismissed upon the grant of decree absolute;

(4) Upon the payment of the lump sum of $7,932,000 to the wife, all previously-made interim maintenance orders and/or any undertakings previously given by the husband in the 1^st MPS Order, the Accommodation Order and/or the 2^nd MPS Order shall be discharged;

(5) No further order shall be made in respect of the 2^nd MPS Summons, with no order as to costs including costs reserved;

(6) Costs of the ancillary relief proceedings, including this trial, shall be reserved.

258.  The above order is made upon the husband’s following undertakings:

(1) He shall pay to the wife for the benefit of the daughter the salaries, food allowances, insurance, agency fees, air tickets and long service payment (if any) of a full-time maid hired by the wife at her choice, within 7 days upon the wife’s production of employment contract or the relevant invoices (as the case may be), until the daughter reaches 18 years old, or completes her full time education (1^st degree), whichever is the later;

(2) He shall pay directly to the school(s) of the daughter the school fees, school textbooks and school materials, until the daughter reaches 18 years old, or completes her full time education (1^st degree), whichever is the later;

(3) He shall pay the daughter’s extra tuition fees (Chinese, Mandarin, Piano including piano books, student concerts/competition), within 7 days upon the wife’s production of invoices/receipts, until the daughter reaches 18 years old, or completes her full time education (1^st degree), whichever is the later;

(4) He shall pay directly for the swimming classes of the daughter which shall take place at SCAA at the time slots picked by the wife, provided that such time slots will not fall within the access time of the husband unless it is with his prior written consent;

(5) For the daughter’s dental treatments that are advised by a licensed dentist in writing, he shall pay such dental expenses within 7 days upon the wife’s production of invoices/receipts, until the daughter reaches 18 years old, or completes her full time education (1^st degree), whichever is the later;

(6) For the daughter’s medical treatments at hospitals and/or hospitalisation expenses that are advised by a licensed medical practitioner, he shall pay all such expenses until the daughter reaches 18 years old, or completes her full time education (1^st degree), whichever is the later;

(7) He shall pay the insurance premia of the daughter’s insurance until the daughter reaches 18 years old, or completes her full time education (1^st degree), whichever is the later;

259.  A penal notice is endorsed with this court order, and personal service of this court order shall be dispensed with.

260.  I grant the declaration under section 18 of the MPPO that I am satisfied with the arrangement of the daughter.

261.  With the conclusion of this trial, I truly hope that the parties can put an end to their dispute and move forward to co-parent the daughter for her best interest.

262.  Lastly, I thank counsel for their respective assistance rendered to the court in this trial.