CHAN WEI YIN v. CHEONG SHUN CHIU

Headnote

Matrimonial Proceedings and Property Ordinance, Cap. 192 - wife's application for ancillary relief - District Judge made an order in the form of a "recommendation" to the Housing Authority that the existing tenancy of the matrimonial home be transferred into the sole name of the wife - Husband filed affidavits disclosing very limited financial means and was not cross-examined. Held (Court of Appeal): (1) Judge had no jurisdiction under the MPPO, cap. 192, to make the "recommendation" concerning the matrimonial home; (2) Such a "recommendation" had no place in the statutory scheme under the Housing Ordinance, cap. 283; (3) The uncontradicted affidavit evidence before the court did not justify the order for maintenance made under section 4 of the MPPO, cap. 192; (4) Orders of judge set aside and case remitted to District Court for re-hearing.

IN THE COURT OF APPEAL

1993, No. 67
(Civil)

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J U D G M E N T

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Litton, J.A. (giving the judgment of the court):

1. We have before us two highly vulnerable people. The appellant is the husband Mr. Cheong Shun Chiu. The respondent to this appeal is the wife Madam Chan Wei Yin. They are both about 56 years old. They were married in January 1958 and have five children, all grown up. They were divorced in April 1992 on the wife's petition.

2. What we are concerned with on this appeal is an order made by the District Judge, His Honour Judge Surman, on 13 January 1993 pursuant to the wife's application for ancillary relief. The order (where relevant) is in these terms:

"1. There be a recommendation to the Housing Authority that the existing tenancy of the matrimonial home of Room 3615, Man Chat House, Hing Man Estate, Chai Wan, Hong Kong be transferred into the sole name of the Petitioner [wife];

2. The Respondent [husband] do pay to the Petitioner [wife] periodical maintenance at the rate of HK$3,000.00 per month of 1st payment on 1st January 1993 and subsequent payments on the 1st day of each succeeding month until further order; ..."

3. The judge ordered that each parties' cost be taxed in accordance with the Legal Aid Ordinance.

4. The husband has, until recently, been represented by solicitors on legal aid. Grounds of Appeal against the judge's order were lodged on the husband's behalf in April 1993, pursuant to leave granted by Bokhary, J.A. on 21 April 1993. It will be necessary later on in this judgment to refer to those grounds of appeal as filed.

Affidavit evidence

5. In response to the wife's application for ancillary relief, the husband lodged an affidavit of means which, in essence, disclosed the following:

(1) He carried on the business of transporting school children by mini-bus.

(2) The gross income from that business was $16,200 per month; In answer to the pro-forma question: "Do you received any benefits in kind, as free accommodation, use of car, etc?" He answered:

" Sub-let Granville Road, the rent received is $1,500 per month".

The "Granville Road" here refers to a flat at No.54 Granville Road, 4th floor, Kowloon, the home of a Madam Fu Siu Ling and her 22 year old daughter. The husband is nominally the tenant of that flat.

(3) As to his expenses, the husband gave figures for business expenses such as the cost of fuel, maintenance costs, renting of car parking spaces for the mini-buses etc. which leave the husband with very little disposable income.

(4) In answer to the pro-forma question: "What do you claim to be your necessary expenses of providing yourself with a place to live in, such as rent .... etc.?" The husband answered:

(5) As regards his assets, the husband gave details of three mini-buses, only one of which was operational, with a total value of $39,000 to $49,000. As to other assets, he particularized gold ornaments worth $9,000 and bank accounts totaling approximately $24,000. As regards his liabilities they were as follows:

(a) Rent in arrears for No.54 Granville Road, 4th floor $32,316;

(b) charges for vehicle repairs in arrears $16,000;

(c) contributions to chit funds totaling $2,500.

6. Pursuant to an order for further particulars of his income and property, the husband filed a further affidavit of means on 23 September 1992 together with supporting documents totaling nearly 240 pages. This focused upon a number of bank accounts which he held, some jointly with his children, some in the name of his company Cheong's Motors Co. and some in his own name. Except for the accounts with the Citibank the amounts and turnover on these accounts were extremely modest; for instance, exhibit "CSC-6", a savings account with the Shanghai Commercial Bank, for the period 21 December 1980 to 6 April 1992 (covering a period of over eleven years) the opening balance was $213, the highest credit balance was $3,277 and the closing balance was $957.

7. Following the lodging of this affidavit, there was much correspondence between the respective solicitors, spanning the period 25 September 1992 to 26 November 1992 in which the wife's solicitors queried some of the items in the husband's affidavit: in particular, the gross receipts of his business. Nothing in the husband's solicitors' replies amounted to anything like admissions that the husband's account of his current income is untrue.

8. On 18 December 1992 the husband lodged yet another affidavit which, together with the documentary exhibits, totaled over 350 pages. This was followed by yet a further affidavit on 11 January 1993.

9. The picture which emerges from these affirmations broadly is as follows:

(1) The husband's mini-bus business has been running down for some time. Whilst, in the 1970s, it might have been flourishing - at its height, he employed 10 persons - by mid-1992, it was very modest. He had only one operational 16 seater mini-bus, manufactured in 1984. At the time of his affirmation of 18 December 1992 he had as clients 27 students paying an average of $470 per month and therefore making a total of about $12,690 per month. This was, of course, only during the school terms.

(2) In earlier years his over-all financial position was much better: for instance he was able to help his son Willie to buy the flat which is now his home, where the wife now lives (at least temporarily).

(3) Recently he had to sell some of his gold ornaments (the total value of which was modest) to make ends meet.

(4) The total of the credit balances in his various bank accounts came to only about $20,000 which included advance payments made by his clients.

(5) His monthly outgoings, which included $334 paid to his mother, contributions of $2,000 to chit funds and meal expenses of $3,000 came to a total of $17,414.

(6) As regards the Granville Road flat of about 800 square feet in area, one bedroom was sublet at a rent of $1,500 per month and the other two bedrooms were occupied by Madam Fu and her daughter. Madam Fu had been the husband's "second wife" for over thirty years and the 22 year old daughter was his daughter. However, the rent of $3,750 per month was wholly discharged by Madam Fu and her daughter. The husband was not cohabiting with Madam Fu; he lived at Room 3615 Man Chat House, Hing Man Estate; this was his home as well as the base for his business; there was no extra room at Granville Road to accommodate him.

The hearing

10. At the hearing before the District Judge, both parties were represented by solicitors. The wife entered the witness-box and was cross-examined. The husband did not enter the witness-box and was accordingly not cross-examined with regard to his affirmations.

11. Immediately upon the conclusion of the hearing, the judge gave judgment. As regards the question of accommodation, the judge's conclusion was, in essence, this: The wife was a "Matrimonial Nomad", living for short periods of time with some of her children, whereas the husband had, in effect, "two homes". He reached this conclusion on the basis that there was adequate room for him at Granville Road if he chose to live there.

12. As regards maintenance, the judge said this:

"The husband admits that he still indulges in gambling, and that he has had several holiday trips to visit relatives in China, accompanied sometimes by his Mistress for whom he presumably pays. These luxury expenses could well be diverted to help make some sensible contribution to the support of the Wife."

13. He accordingly made the two orders he did.

Maintenance

14. The only "admissions" the husband could have made were those in his various affirmations. As regards gambling, he said in paragraph 8 of his affidavit of 23 September 1992:

"8. I have also maintained an account ... with the Royal Hong Kong Jockey Club for placing bets by telephone, but I bet in small sums and the record of them is shown in the statements of my savings account .... exhibit 'CSC-4"'.

15. In paragraphs 5(d) and (e) of his affidavit of 18 December 1992 he said:

"5(d) I do not and did not gamble frequently nor on numerous occasions won or lost a few thousand dollars on mahjong.

(e) I have never been involved in paper gold trading nor shares and stocks trading as alleged by the Petitioner."

16. On page 12 of the same affidavit (page 396) of the bundle, he said:

"(vii) I have interest and experience in horse-racing and I know quite a number of people of the Royal Hong Kong Jockey Club. My son Mr. Jimmy Cheong was formerly a jockey and is now a deputy horse-trainer. My friends have confidence in me and used to ask me to bet on horses on their behalf. I used to place small bets on horses, however, my friends ... deposited with me the sum of $20,000 each in September 1992 and October 1992 respectively for betting on horses. They agree to give me 30% of the proceeds as bonus if I bet on the right horses for them and I have so far received about $6,000 as bonus ..."

17. This last passage does suggest considerable knowledge of horse-racing and familiarity with betting on races, but it is not easy to get an overall picture of his spending habits based on his statements on affidavit. The impression is that, whatever the position might have been in the past, the husband's life-style at the present time has become much reduced. If, by the finding that the husband "indulged in gambling" the judge meant that he had grossly understated his disposable income, this is not justified by the affidavit evidence.

18. The judge also found that the husband had under-stated his disposal income because he made contributions of $2,000 per month to the chit funds. This is surprising. If the husband should default in his monthly contributions, he would forfeit the right to draw for the capital, thereby risking perhaps the total loss of his previous investment.

19. As regards the husband's "holiday trips" which the judge found were "luxury expenses" which could "well be diverted to help make some sensible contribution to the support of the wife", this is what the husband said in his affirmation of 18 December 1992 (page 396 of the bundle):

"(viii) I visit my relatives in China several times every year, but I used to go alone and only on few occasions I went with Madam Fu. I had not gone to China with Madam Fu this summer as alleged by the Petitioner through her solicitor. I had joined a tour in Hong Kong to visit Japan together with Madam Fu this summer, but each of us paid our own expenses. I only spent about $3,000.00 for the trip as I brought with me some cosmetics for resale at a profit there which contributed to my expenses for the trip."

20. Apart perhaps from the trip to Japan, the husband's visits outside Hong Kong cannot be described as "luxury trips". Visits to China are not necessarily costly. The judge assumed that when Madam Fu accompanied the husband to China he paid for her, but there is no concrete evidence to support this assumption. The husband's present relationship with Madam Fu was never explored at the hearing. There was no cross-examination. Apart from the fact that the husband pays her a modest salary to act as "bus mother" when he transports the school children to and from school, there is little in the material before us to support the inference that the husband was indulging his mistress at the expense of his former wife.

Accommodation

21. The question of accommodation lies at the heart of this appeal. The husband is the tenant of the Housing Authority in respect of Room 3615, Man Chat House, Hing Man Estate. This was the former matrimonial home which the wife left in January 1991 after a violent quarrel in the course of which she was assaulted by the husband. Since then, she has been a "matrimonial nomad" living for brief periods of time with her adult children. The judge's finding was as follows:

"These children have family responsibilities of their own, and insufficient accommodation to allow their Mother to live with them in the long term, although three of the children do support her (in contrast to the Husband) with a small monthly financial contribution ... In my view it is wholly unreasonable for the children to be expected to provide their mother with shared accommodation if other independent housing arrangements for her can be made."

22. The broad conclusion which the judge drew, in relation to the matters which a court must have regard to in deciding what orders to make under sections 4 and 6 of the Matrimonial Proceedings and Property Ordinance Cap.192, was as follows:

"The Husband now continues to have an income from the business; his Wife has none. The Husband has in effect two homes; the Wife has none. The Wife moves from place to place; the Husband is static. The Wife has to rely on others for financial support."

23. The finding that the husband has "two homes" is based on the affidavit evidence to the effect that the husband is the tenant of the Granville Road flat in which Madam Fu and her daughter lived (and in which one room has been sublet to produce a monthly income of $1,500). The presumption which the judge made, crucial to this issue, is that the husband would be able to live there if he chose. On the material before the court, we cannot see how this assumption can properly be made. The relationship between the husband and Madam Fu, at the time the judge made his order, was wholly unexplored. The husband is, in name, the tenant of the flat, but it is Madam Fu and her daughter who pay the rent. At the time when the husband made his first affidavit of means, in May 1992, the rent for the flat was 9 months in arrears. There is no evidence before the court as to who ultimately discharged those arrears. What the husband said in his affirmation of 18 December 1992 (page 400 of the bundle) concerning the Granville Road flat is this:

"I am not cohabiting with Madam Fu. I do not wish to live with her in the future especially because our said daughter has grown up. There is no extra room in her home to accommodate me and I hope I can continue to live in [Room 3615, Man Chat House] by myself."

24. In his affirmation the husband also says that he used the car-parking spaces in the public housing estate for his two mini-buses; the rent is low and this, he says, is essential to his business; without this facility, it would not be possible for him to continue his business. On the material before the court, these assertions are unchallenged.

"Recommendation" to the Housing Authority

25. At the hearing before us, the husband was unrepresented. When we asked Miss van der Eb for the statutory authority justifying the judge's "recommendation" to the Housing Authority that the tenancy of Room 3615 Man Chat House be transferred from the husband to the wife, she was unable to point to any. She told us that such "orders" are often made in the Family Court. On our own motion, we then caused the Notice of Appeal to be amended by adding the following:

"2(A) That, having regard to the provisions of the Matrimonial Proceedings and Property Ordinance, Cap.192, and of the District Court Ordinance, Cap.336, the judge had no jurisdiction to make the order in paragraph 1 of his order dated 13 January 1993."

26. Plainly, a term of years under a tenancy, which has no restriction on transfer, can be the subject of an order for the transfer of property under section 6 of the Matrimonial Proceedings and Property Ordinance, on the court granting a decree of divorce. But this is not what the judge did in this case.

27. It seems to us beyond argument that paragraph 1 of the judge's order is ultra vires and cannot be sustained. There is simply no statutory basis for it.

28. There is another, equally, fundamental objection to the order. It is this. The control of housing estates is given to the Housing Authority by statute: see Part IV of the Housing Ordinance, Cap.283. The courts are not given any co-ordinate jurisdiction in that regard. Obviously, the Authority must exercise its statutory powers under Part IV of the Ordinance fairly and objectively, in accordance with its own policy guidelines. Short of the exercise of power in judicial review proceedings under Order 53 of the Rules of the Supreme Court, the court cannot intervene. In some instances the court's jurisdiction is expressly excluded:for instance, in relation to the termination of tenancies of units in housing estates, section 19(3) states:

"No court shall have jurisdiction to hear any application for relief by or on behalf of a person whose lease has been terminated under subsection (1) in connection with such termination."

29. The judge's "recommendation" in paragraph 1 of his order, if it has any effect at all, would require the termination of the husband's tenancy and the grant of a new one to the wife; it would interfere with the exercise of the Authority's discretion under section 19 of the Housing Ordinance; there are no provision in that Ordinance which accommodate such a "recommendation". It is questionable, in the context of a housing estate tenancy, whether the expression "transfer" is ever accurate. Where a tenancy is "transferred" or "assigned" the transferor or assignor is the tenant; if the tenancy contains no prohibition against transfer or assignment, the landlord is not concerned with the transaction; it is simply the exercise of the tenant's right of property. In the present case, the judge had not considered whether a "transfer of property" order under section 6 of the Matrimonial Proceedings and Property Ordinance could be properly made in consultation with the Housing Authority; his "recommendation" was directed unilaterally to the Housing Authority; to implement the "recommendation" it required an act on the part of the Housing Authority, not of the husband. It is highly questionable whether the expression "transfer" is applicable at all to the transaction contemplated by the judge.

30. The matter can be tested in this way: Under s.63(1) of the District Court Ordinance, a party aggrieved by a "judgment, direction, decision or order" made by a District Judge may apply for leave to appeal. Is the "recommendation" made by the judge any of those things? Does it not demonstrate conclusively that he had no jurisdiction to make any such "recommendation"?

Conclusion

31. Plainly, the result of this appeal is that paragraph 1 of the judge's order must be discharged.

32. The question then remains: What to do with the rest of the order? Normally, this court would not interfere with a District Judge's exercise of judgment in family matters, where the parties have been heard and the factors under s.7(1) of the Matrimonial Proceedings and Property Ordinance have been properly evaluated. But, in this case, the husband was not heard. The adverse inferences which the judge drew were in some instances not justified by the material before him. Whilst the wife undoubtedly deserves the sympathy of the court, and the finding that at 55 she has no earning capacity and has to rely upon her former husband and children for support is probably justified, the judge failed adequately to assess the husband's position. Whilst the husband had, at one time, a reasonably flourishing mini-bus business concentrating mainly on transporting school children and old people, by mid-1992 or early 1993 the business had become rather run down. Whether this has anything to do with the unresolved matrimonial disputes was never explored. The wife is without question highly vulnerable; but arguably, so is the husband.

33. We appreciate the difficulties under which the Family Court labours, and regret it should be so. The judges are hard pressed for time and they work under wholly unsatisfactory conditions. They have no secretarial assistance in court and have to keep the record in long hand. Viva voce evidence leads to the prolongation of hearings and takes up additional time which the judges can ill-afford. Nevertheless, the present case is one which cries out for deeper exploration of the underlying facts. Further, the judge's conclusion is vitiated by a fundamental error of law, as regards the tenancy of the matrimonial home.

34. Reluctant though we are to order that this case be remitted to the District Court for a fresh hearing before another judge, this seems to us inevitable. The re-hearing must start upon the basis that the tenancy of Room 3615 Man Chat House is vested in the husband. If the wife wants to contend that the husband has two homes available to him and that an order should be made by the court under s.6 of the Matrimonial Proceedings and Property Ordinance requiring the husband to transfer the tenancy of Room 3615 to the wife, then she must adduce evidence, perhaps by taking out a witness summons directed to the Housing Authority, to satisfy the court that the terms of that tenancy enable such order effectively to be made. The question of "transfer", what form such "transfer" can take, can only be resolved by evidence concerning the policy and practice of the Housing Authority. A court cannot make an order in a vacuum. Assuming the tenancy will, in fact, remain vested in the husband, and upon this basis, what amount of maintenance can reasonably be required to be paid by the husband to the wife? This question was not determined; yet this may be the only proper approach.

35. We would, accordingly, allow the husband's appeal, set aside the judge's order of 13 January 1993 as regards paragraphs 1 and 2, but leave the order for costs undisturbed. The application for ancillary relief should be heard afresh by another judge, upon the basis that both parties do attend the hearing and be cross-examined. As far as the costs of the appeal are concerned, we would make an order nisi that the wife pays the husband's costs: these will be minimal as he was unrepresented at the hearing.

36. There should be a certificate under the Legal Aid Ordinance for the taxation of the wife's costs on the appeal.