YYPP v. NKF

FCMC 1757/2017

[2019] HKFC 67

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 1757 OF 2017

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________________________

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J U D G M E N T

(Maintenance pending suit)

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The Application

1.  By the summons dated 20^th April 2018, the petitioner wife (“Wife”) applied for herself and for the two children of the family, aged 24 and 15 respectively (“Children”), against the respondent husband (“Husband”) for maintenance pending suit.  The Wife filed her affirmation in support (“1^st Affirmation”) on 14^th May 2018 and particularised her claim for maintenance pending suit (“MPS”) :-

(a)  for HK$32,953 for the Wife; and

(b)  for HK$82,237 for the Children.

2.  The Husband opposed to her application and filed the affirmation in opposition on 16^th July 2018 (“Husband’s Affirmation”).

3.  The Wife filed her the affirmation in reply on 30 August 2018 (“2^nd Affirmation”).

Background of the case

4.  The parties were married in August 1992.  There are 2 Children born in their wedlock, namely the elder daughter (“Daughter”) born in 1994, now 24 years old and the younger son (“Son”) born in 2003, now 15 years old, studying Form 4 in a government secondary school.

5.  The Wife is now 50 years old.  She had been a secretary and a teacher in the past.

6.  The Husband is now 54 years old.  He is a licensed estate agent and a director of an estate agency company (“K Property Agency Limited”).  He also holds 20% shareholding in the company.  H is also a 20% shareholder of a limited company (“GF Limited”), which is a property holding company holding 5 landed properties.

7.  During the marriage, the family used to live at a property at Lei King Wan, which is a property registered in the parties’ joint name (“Former Matrimonial Home”), which was purchased in 1995.

8.  Since about 2009, the Wife started being a housewife and she has been financially dependent on the Husband.  The Husband has been the sole breadwinner of the family.

9.  In 2012, the Daughter went to the United Kingdom to read law. She graduated from the Bachelor of Laws in 2016.  She then pursued the Masters of Laws in Hong Kong in September 2017 and completed in 2018.  From September 2018, the Daughter started working part time in a law firm on an hourly basis.  

10.  An incident occurred on 2^nd August 2015, and after the incident, the Wife, together with the Children, moved out from the Former Matrimonial Home. The Husband has remained residing at the Former Matrimonial Home.  The parties have separated since then. 

11.  The Wife filed the Petition for divorce on 15^th February 2017 on grounds of unreasonable behaviour.  The Petition was subsequently amended to separation for more than 1 year with consent as the ground of divorce.

12.  Decree Nisi was granted on 2^nd February 2018.

13.  By consent, it was ordered on 23 April 2018 that the joint custody of the Son be granted to the Wife and the Husband, with care and control be granted to the Wife and reasonable access to the Husband.

14.  At the 1^st Appointment Hearing dated 23 April 2018, upon the Husband having confirmed that :-

(a)  he has 20% beneficial ownership of the shares in GF Limited;

(b)  he has 25% beneficial ownership of the property at Mody Road (“Mody Road Property”) of which the Husband is one of the 4 joint tenants, with the Husband jointly owned the Property with his mother and his siblings; and

(c)  he has 25% beneficial ownership of the 2 bank accounts which are jointly owned with his mother and his siblings, parties have agreed that there are no preliminaries issues in this case.

The legal principles

15.  Under section 3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”), the court may order either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of presentation of the petition or the making of the application and ending on the date of the determination of the suit, as the court thinks reasonable. 

16.  The legal principles governing any maintenance pending suit application require the court to balance the reasonable needs of the applicant spouse (and the concerning children where applicable) against the paying spouse’s ability to pay by using a broad brush approach.  In HJFG v KCY [2012] 1 HKLRD 95, the Court of Appeal has summarised the established principles as follows:-

“33.  Jurisdiction to award maintenance pending suit to a spouse is statutory, being governed by the provisions of s.3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. By that section the court is given a discretion to make an order requiring either party to the marriage to make to the other such periodical payments for his or her ‘maintenance’ as the court thinks ‘reasonable’, subject to the condition that the duration of any such order is limited to the period of what may broadly be called the divorce litigation.

34.  By definition, therefore, maintenance pending suit is restricted to payments which constitute ‘maintenance’, which are reasonable in the circumstances and which will endure for no longer than it takes to determine the divorce litigation. ‘Maintenance’ is a broad concept. I do not seek to define its exact meaning but it seems to me that it must be restricted to those payments necessary to meet the recurring costs of living at whatever standard of living is appropriate. That being the case, no matter how great the wealth of the parties and how unevenly distributed that wealth may be at the time an application for interim maintenance is made, the court has no jurisdiction to make orders which for all practical purposes result in a form of pre-trial capital rebalancing. In the present case, the Judge recognised the long-established approach of looking to the ‘immediate and reasonable needs’ of the wife and son.

35.  As to the amount of maintenance pending suit that may be paid, the Ordinance provides only that it must be ‘reasonable’, that is, having regard to the circumstances of the case, that it must be fair.

36.  An important factor in determining fairness is a consideration of the martial standard of living. In this regard, each case must be considered according to its own circumstances. It is not simply to be assumed that great wealth equates to great extravagance. Some married couples who enjoy great wealth spend with comparative modesty and with a discipline born of discretion, others enjoy consumption on a grand scale.

37.  The principles that have emerged over time to guide judges in matters of interim maintenance have been fashioned in the main to ensure fairness. This is well illustrated in the judgment of Nicholas Mostyn QC, sitting then as a Deputy Judge, in TL v ML [2006] 1 FLR 1263, 1289, in which, having looked at earlier authorities, he derived the following principles that speak specifically to fairness or are based on the need to ensure it. For present purposes, it is sufficient to cite the relevant principles without citing the Judge’s reference to the source of those principles:

(a)  The sole criterion to be applied in determining the application is ‘reasonableness’, which is synonymous with ‘fairness’.

(b)  A very important factor in determining fairness is the marital standard of living. This is not to say that the exercise is merely to replicate that standard.

(c)  In every maintenance pending suit application there should be a specific maintenance pending suit bedget which excludes capital or long-term expenditure, more aptly to be considered on a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration.

(d)  Where the affidavit or Form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources. In such a situation, the court should err in favour of the payee.

38.  Finally, it is to be noted that in applications for interim maintenance, when the amount to be paid is for a limited period only and not all of the evidence is necessarily before the court, it is not appropriate, nor indeed in most cases possible, for the court to conduct a detailed investigation into the finances of the parties.  While, in order to determine what is or is not reasonable, some analysis is always required, that analysis can be conducted on a ‘broad-brush’ basis.”

17.  It is also well established that in ancillary relief proceedings, which include maintenance pending suit, there is a duty on both parties to make full and frank disclosure of the relevant materials to enable the Court to exercise its discretion to make the order, and if the Court is of the view that the evidence disclosed by a party is deficient, inferences may be drawn by the court from such defective disclosure against that party when making the appropriate order.

Issues of the case

18.  Counsel for both sides agree the following are the issues for the court’s determination :-

(a)  What are the reasonable expenses? (Issue 1)

(b)  Can the Husband afford to pay the sum? (Issue 2)

The wife’s case

19.  It is the Wife’s case that the Husband has always been maintaining the family financially, including but not limited to all the Children’s education expenses, whilst the Wife took care of the household and the Children.

20.  According to paragraph 7 of the Wife’s 1^st Affirmation, in or around 2012, the family monthly expenses were as follows :-

(a)  HK$28,200 for the general expenses for the Wife and the Children;

(b)  HK$19,500 for the Wife’s personal expenses;

(c)  HK$41,667 for the Daughters’ expenses when she was studying in the United Kingdom; and

(d)  HK$14,900 for the Son’s expenses.

21.  Therefore, the Husband was contributing at least HK$104,267 (HK$28,200 + HK$19,500 + HK$41,667 + HK$14,900) per month for the family expenses.

22.  According to the Wife, in about June 2015, the monthly allowance provided to the Wife and the Son was reduced from HK$46,000 to HK$30,000, and later increased to HK$36,000, as the Husband told the Wife that he could not afford the same level of maintenance due to his drop in income.  Further, in addition to the amount paid to the Wife directly, the Husband had been paying for other expenses direct, such as the tuition fees and expenses for the Daughter when she studied in UK, and other household expenses for the family. 

23.  In the Wife’s Form E filed on 25 April 2017, the total family monthly expenses were HK$107,369, with breakdown as follows :-

(a)  HK$45,749 for the general expenses for the Wife and the Children;

(b)  HK$21,500 for the Wife’s personal expenses; and

(c)  HK$40,120 for the Children’s expenses

24.  In the Wife’s 1^st Affirmation filed on 14 May 2018, she updated the family monthly expenses, with a total of HK$115,190 with the breakdown as follows :-

For general expenses:-

Items	Amount HK$
Rental expenses	14,260
Utilities	1,200
Food	7,800
Insurance premia	3,600
Household expenses	5,000
Others	4,000
Total:	35,860

For personal expenses:-

Items	Amount HK$
Meals out of home (for Wife and Children)	6,000
Transport	800
Clothing / Shoes	1,000
Personal grooming, haircut and cosmetics	1,000
Entertainment / present	1,000
Holiday	5,000
Medical / Dental	1,200
Insurance premia	2,000
Contribution to parents	3,000
Total:	21,000

For children’s expenses :-

Items	Amount HK$
	Daughter	Son
School fees	13,770
Extra tuition fees		4,500
School books and stationery		500
Medical / dental	4,000	1,500
Extra-curricular activities		7,000
Entertainment / present	1,000	1,000
Holiday	5,000	5,000
Clothing/ shoes and personal grooming	2,000	2,000
Insurance premia		1,240
Lunches and pocket money	4,000	2,500
Uniform		500
Occupational therapy		2,820
Sub-total	29,770	28,560
Total:		58,330

25.  The Wife is of the view that the expenses she claims are reasonable, with reference to the standard of living they had enjoyed before the Husband and Wife separated. 

26.  It is the Wife’s stance that the Husband is from a wealthy family.  He has worked for the family business mainly dealing with tenancy matters of numerous landed properties owned by himself and his family members.  The Husband has been the sole breadwinner of the family and he has the ability to pay the amount the Wife asks for.

The husband’s case

27.  The Husband’s case, in essence, is that the expenses as stated by the Wife has been exaggerated.  Since March 2016, the Husband has been paying HK$36,000 per month to the Wife, but she is now asking for a total sum of HK$115,190 for herself and the 2 Children.

28.  Besides, the Husband is of the view that he should not be responsible for paying the expenses of the Daughter for MPS.

29.  The Husband said he does not have a stable income.  He only earns on commission. As the estate agency business is not doing well, his income has been decreasing. He could not afford his expenses, as well as paying HK$36,000 per month to the Wife, and therefore he has been borrowing loan from his brother.

30.  The Husband offers to continue paying HK$36,000.  He explains that in fact, he does not have the money to pay the amount, but he could borrow money from his brother, as he did in the past, in order for him to continue paying HK$36,000 to the Wife and the Son, which the Husband thinks is a sufficient amount.

31.  According to the Husband, his expenses as stated in his Form E filed on 4 May 2017 were HK$56,495 in total, with breakdown as follows :-  

For general expenses :-

Items	Amount HK$
Utilities	*1,800
Management fees	*1,800
Food	2,000
Household expenses	3,000
Domestic helper	*4,400
Total:	5,000

*these items paid out of HK$36,000 (money to dependent family members)

For personal expenses :-

Items	Amount HK$
Meals out of home	3,000
Transport	5,000
Clothing / shoes	2,000
Personal grooming	500
Entertainment / presents	2,000
Holiday	1,000
Medical / dental	500
Tax	829
Insurance premia	666
Dependent family members	36,000
Total:	51,495

32.  In the Husband’s Affirmation filed on 16 July 2018, he had revised his expenses, which is now only HK$9,762 per month, which are summarised as follows :- 

For general and personal expenses :-

Items	Amount HK$
Utilities	150
Management fees	1,802
Food	800
Household expenses	500
Meals out of home	3,000
Transportation (including taxi fees)	2,000
Clothing / shoes	500
Personal grooming / haircut	150
Medical / dental	200
Insurance premia	660
Total:	9,762

What the reasonable expenses are (Issue 1)

33.  In considering the first issue of what the reasonable expenses are, I have to, first of all, consider the issue of whether or not the expenses for the Daughter should be considered at this MPS hearing.  The parties have different views.

34.  It is not in dispute that the Daughter pursued a Bachelor of Laws degree in the United Kingdom and graduated in about July 2016.  She then pursued her Master of Laws degree in Hong Kong in 2017, which was completed in about May 2018. Starting from September 2018, the Daughter has been working part-time on an hourly basis in a law firm. 

35.  It is the Wife’s position that the Daughter intends to pursue PCLL in the coming school year and therefore she has not completed the full time training.  She is now doing preparation to be admitted to the PCLL.  The Wife further explains there was a gap year because of the Daughter’s depressive condition that she was not being able to continue her study and therefore there was a gap year.  The Wife alleges that these are special circumstances the court should consider and the Husband should continue paying for the maintenance for the Daughter.

36.  The Husband disagreed.  It was the Husband’s position that after the Daughter had completed the Law Degree, she stopped for a year before she pursued her Master Degree.  After completed her Master Degree, she then started working part-time.  The Husband contented that the Daughter may not pursue or may not be admitted to enrol the PCLL course, rendering the Daughter having completed the full-time education or training, and therefore no maintenance should be paid to the Daughter.

37.  The court had considered parties’ submissions.  Counsel for parties had agreed that it may be best to determine at trial, when oral evidence is given and with investigation into documents to be further discovered, whether the Daughter had completed full time education, the effect of her psychological condition, if any, on her completion of the full time education and if she is admitted to PCLL, whether the Husband should continue paying for her maintenance, including the educational fees.

38.  For this MPS application, from the evidence before me, I notice that the Daughter had completed the full time Bachelor of Laws.  There was a gap year before she pursued her full time Master of Laws.  After completed her Master degree, the Daughter has now started working part-time in a law firm, earning a salary.  It is not surprising that the Daughter may aspire to pursue for the PCLL course and may be working hard towards the aim to be a lawyer, including gaining more experience by working in a law firm now.  However, there is no certainty of being admitted to PCLL and the Daughter is still working on it, hoping to get admitted to PCLL.  In the circumstances, with the evidence before me, I am of the view that it is not reasonable to include the expenses of the Daughter as reasonable expenses for this MPS application.

39.  I now turn to the general expenses, the personal expenses of the Wife and the expenses for the Son in turn.  I have to make it clear that at this stage, the Court has to balance the reasonable needs of the Wife and the Son, and also the ability of the Husband to pay on an interim basis.  I have to emphasise that it is not the case that any amount claimed without receipts or supporting documents cannot be considered.  At the same time, any amount claimed with receipts does not automatically mean they are justifiable and reasonable.  Some analysis will be conducted by the Court on a broad brush basis.

40.  In undertaking this balancing exercise, the Court will adopt a broad brush approach and not a detailed investigation of the financial positions of the parties, and at the same time, bearing in mind the marital standard of living of the parties.

41.  Regarding the marital standard of living, the parties used to live at the Former Matrimonial Home, which is a 3-bedroomed apartment, with a helper.  The family travelled about twice per year.  

42.  Going back to the reasonable expenses, I’ll now look into the disputed items in turn.

(a) General Expenses

(i) Rent

43.  The Wife asks for a monthly sum of HK$14,260 (with rental of $14,000 per month and estate agency fee of $6,250 once every 2 years).  The Husband did not dispute the amount paid for rent.  He refused to pay as he is of the view that the renal was paid upfront a lump sum of HK$196,000 (HK$14,000 x 12 months + 2 months’ rent as deposit), paid up to June 2019. 

44.  The Wife explained the reason why the rent was paid upfront was because she has no employment and the landlord is a sympathetic landlord who has agreed to receive rent at a very economical price. 

45.  I am of the view that rental payment is recurring expense.  The upfront lump sum payment has been paid up to June 2019.  With the tenancy agreement provided showing that the monthly rental is HK$14,000 per month, I rule that it is a reasonable sum under this head.

(ii) Utilities

46.  For utilities, the Wife asks for HK$1,200. According to the Wife, in 2 electricity bills that she has produced (for the months of June and July), the electricity bills each month costs more than HK$1,100.

47.  The Husband proposes HK$1,000 for utilities.  He commented that the Wife has only produced very limited utility bills and with the bills she has produced, they are of the highest usage in a year.  The Husband stated in his Affirmation that according to his calculation with the chart in the utilities statements, the average electricity expenses should be about HK$700 per month and the average water expenses should be HK$106 per month.

48.  I agree that the few utilities statements the Wife has produced are amongst the highest usage in a year.  However, at this stage, I am not going to investigate in detail the accuracy of the Husband’s calculation of the average electricity bills and water bills.  With a broad brush approach and with reference to the limited documents the Wife has produced, I am of the view that HK$1,200 per month is reasonable under this head.

(iii) Food

49.  For household food expenses, the Wife asks for HK$7,800 for 3 persons (with the breakdown of HK$300 per day x 26 days).  The Husband disagreed and offered HK$3,900. 

50.  For food expenses, I notice that the Wife is claiming HK$7,800 under general expenses and HK$6,000 for meals out of home (for herself and the Children) under personal expenses, apart from a separate item for lunches and pocket money for the Children. 

51.  I am of the view that the sums seems to be excessive, I rule that about HK$200 per day is reasonable, making is HK$6,000 per month for the household food expenses.  For the meals out of home under personal expenses, also taking a broad brush approach, I am of the view that HK$4,000 under that head is reasonable.

(iv) Insurance premia

52.  For insurance, the Wife claimed HK$3,600.  The Husband disagrees.  He is of the view that he could not afford the amount of insurance premia that the Wife is now paying.  Besides, the Husband proposed in his Affirmation that he could arrange for his own insurance for accidents and hospital stays, which he believed would be effectively less than the amount the Wife now claims. 

53.  The Wife has explained in her 2^nd Affirmation that the sum comprises of household insurance for the Former Matrimonial Home and Metlife family hospital & accident plan for the Wife, the Husband and the Son.  I notice from the supporting documents produced by the Wife, the policies of the insurance for the Wife, the Husband and the Son have been in force since before the parties had separated. 

54.  I am of the view that these are reasonable sums under this head.  During submissions, counsel for the Husband, Ms Kwan, confirmed that the Wife can stop paying for the 2 insurance policies with the Husband being the insured (with the monthly payments being HK$576 and HK$892).  In that case, I rule that the reasonable sum under this head be HK$2,132 (HK$3,600 – HK$576 – HK$892)

(v) Household and other expenses

55.  I will consider these 2 items together.  For household expenses, the Wife claims HK$5,000 and has provided breakdown in her 1^st Affirmation, explaining household expenses include cooking utensils, home appliances, beddings, consumables and daily necessities.  She further explained that because of the new accommodation, she had to purchase a new set of bedding, mattress and kitchenware, which has increased the general household expenses. The Husband disagrees and offers HK$1,200 under this head.

56.  For other expenses, the Wife asks for HK$4,000, with the breakdown explained in her 1^st Affirmation, as follows :-

“- new furniture and electronic appliances due to relocation such as telephone, TV, laptops, printer and computer software

- health food for the Children, on average about HK$1,500 per month

- fitness club of HK$650 per month

- piano tuning and rental”

57.  The Husband disagrees and offers HK$1,500. 

58.  The Wife explained that a number of items under these 2 heads had been bought due to moving to the new accommodation and the payment method was by monthly instalments.  I am of the view that even if the payment is by monthly instalments, the nature of the purchase of these items are one-off and not recurring monthly.  I can accept the replacement of some items with wear and tear, but not the buying of furniture and appliances etc , which are not the recurring costs of living. 

59.  I accept the buying of daily necessities and the replacement of old and damaged household items.  Health food is acceptable, but I have reservation as to the amount spent on health food.  Expenses of fitness club, upon proof of amount paid, and the Wife and the Son actually using the facilities in the fitness club, sound reasonable.  In relation to the piano tuning and rental, as there is a piano at the Former Matrimonial Home.  It is high time for parties to consider moving the piano to the residence of the Wife, so that no further rental of piano needs to be paid, and it would be much more convenient for the Son to practise piano at home.

60.  With a broad brush approach, I rule that the reasonable amount is HK$5,000 under these 2 heads.

(b) Personal expenses of the Wife

61.  I have ruled in paragraph 51 that meals out of home be in the sum of HK$4,000.  For transportation, the Husband agreed to the sum of HK$800 claimed by the Wife.

(i) For Clothing/shoes, personal grooming and entertainment/present

62.  I will consider these 3 heads together.  The Wife claims HK$1,000 under each of these heads.  The Husband disagrees.  To his understanding, the Wife has not spent that much for these items in the past and as the Wife does not work, she does not need to spend that much under these heads.  He criticised that the Wife had not produced sufficient supporting documents, and with the supporting documents that the Wife eventually produced, they were receipts near the MPS hearing, which the Husband disputes whether they are genuine spending or not.  The Husband proposes HK$1,000 for clothing/shoes and personal grooming, and HK$500 for entertainment/present.

63.  With the documents produced by the Wife, she has explained the items of spending under these heads and the approximate amounts spent.  At this stage, on a broad brush approach, having considered the fact that the Wife has been a housewife and the standard of living of the parties, I am of the view that a total of HK$2,500 for spending under these 3 heads is reasonable.

(ii) Holiday

64.  It is not in dispute that the family go for holiday for about twice a year, with one long haul and one short haul.  The dispute is how much should be the reasonable expenses for the holiday, if any.  The Wife claims for HK$5,000 for herself and HK$5,000 for the Son.  The Husband is of the view that nothing for holiday should be provided for the MPS.

65.  The Wife has produced supporting documents for 2 trips in 2016, one with HK$35,760 spent on a trip to Birmingham and one with HK$21,010 spent on a trip to the mainland, with both trips for the Wife and the 2 Children. 

66.  The Husband is of the view that the amount claimed by the Wife is exaggerated.  The Husband explained that to his recollection, the most expensive tour they joined in the past was a tour to Egypt in 2012, with tour fees of HK$48,000 for 4 persons and the miscellaneous expenses of the whole trip of about HK$6,000, making it HK$13,500 per head for the long haul trip.  For short haul, he spent about HK$15,000 on a short haul tour for 3 of them, with miscellaneous expenses of about HK$500 to HK$1,000, making it about a little over HK$5,000 per head for the short haul trip.

67.  Having considered parties’ explanation and the documents provided for the Court’s consideration, I am of the view that HK$1,600 for holiday for each of the family members is a reasonable sum.

(ii) Medical / dental

68.  For medical / dental, the Wife claims HK$1,200.  The Husband disagrees and proposes HK$900.

69.  I notice that the Wife has produced supporting documents, including for body check up, medical expenses and dental expenses.  With a broad brush approach, having considered the documents in support, I am of the view that HK$1,000 per month is a reasonable sum.

(iv)Insurance premia for the Wife

70.  The Wife claims HK$2,000, which the Husband disagrees and suggests nothing should be included under this head.

71.  From the supporting document provided by the Wife, the monthly insurance premia paid for that policy, which is a life insurance, is shown.  At this stage, I accept that HK$2,000 is a reasonable sum under this head.

(v) Contribution to parents

72.  The Wife claims HK$3,000 for contribution to her mother.  The Wife explains in her 1^st Affirmation that her mother has suffered a stroke in recent years and has moved to an elderly home with caretakers, with her expenses of domestic helper, elderly home rent and medical expenses shared between her siblings.  The Wife has been paying HK$3,000 to her mother during the marriage for her usage and has produced supporting documents of her bank passbook, showing some transactions of the withdrawal of HK$3,000 from the Wife’s account.

73.  The Husband said he was not aware that the Wife had paid HK$3,000 to her parents. Even if she has, the Husband is of the view that he should not be responsible for the amount paid for that purpose.

74.  I have considered parties’ submissions.  At this stage, with the evidence before me, I am of the view that it is not fair to include contribution to parents for this MPS application.

(c) Expenses for the Children

75.  In relation to expenses for the Daughter, I have analysed in paragraphs 33 to 38 above and I am not going to repeat here.  Under this part, I will go through the expenses for the Son, which the Husband disputes.

(i) Extra tuition fees

76.  For the extra tuition fees, the Wife claims HK$4,500.  She explains that currently there are 3 tutors assisting the Son, one for biology, one for mathematics and one for physics and chemistry.  The Son currently receives these tutorial lessons about once every 2 days, with each lessons about 2 hours, making it about 30 hours per month.  With the hourly rate of HK$150 per hour, the monthly costs for tutorial are about HK$4,500.  The Wife further explains that the hourly rate is expected to be increased to HK$170 soon, which will make the monthly costs to about HK$5,100.

77.  The Husband disagrees and proposes HK$4,000.  The Husband is of the view that with 1 tutorial lesson (of 2 hours each lesson of HK$150/hour) every 2 days, that means 3 times per week or 12 times per month, making it HK$3,600 (HK$150/hr x 2 hrs x 12 times).  Also relying on a schedule of tuition classes provided by the Wife in a letter dated 5 July 2018, in March, there was a total of 26 hours of tuition which cost HK$3,870.

78.  I have considered parties’ submissions.  With the Son now studying F.4, the frequency of having tutorial lessons for 3 subjects, as explained by the Wife, is reasonable.  I rule HK$4,500 being a reasonable sum under this head.

(ii) School books and stationery

79.  For school books and stationery, the Wife claims HK$500, which the Husband disagrees and proposes HK400.

80.  With a total sum of HK$3,876 spent on school textbooks for the school year 2017/18, making it HK$323 per month, expenses for other school books, if any, and stationery are not included.  I am of the view that HK$500 per month under this head is reasonable.

(iii) Medical / dental

81.  For medical / dental, the Wife claims HK$1,500, which the Husband disagrees and proposes HK$550, with reasons as follows :-

(a)  With the doctor consultations and vaccinations of HK$400 per month as claimed by the Wife, the Husband is of the view that the Son does not need to visit the doctor that often, and there is no single document in support in the Wife’s 1^st Affirmation.  The Husband is of the view that 4 times a year is sufficient.

(b)  With the annual check-up of HK$400 per month as claimed by the Wife, the Husband comments that there is no receipt for the Son’s body check in the Wife’s 1^st Affirmation.  Assuming each body check costs about HK$2,000, he considers body check of every 3 years is sufficient.

(c)  With the dental care of HK$100 per month as claimed by the Wife, the Husband refers to the scaling costs of HK$450, which he is of the view that the son only needs it once a year.

(d)  With the eye examination and spectacles of HK$300 per month as claimed by the Wife, the Husband agrees eye examination each year of HK$450 each, but he is of the view that normally one would not buy a new pair of spectacles every year.

(e)  For the specialist in nose of HK$300 per month as claimed by the Wife, the Husband notes that the last visit on the specialist costs HK$1,318, but he had not seen other receipts in the Wife’s 1^st Affirmation, despite the Wife saying there were follow up and check-ups a few times a year.

82.  In the Wife’s 2^nd Affirmation, she has produced further receipts.  Having considered parties’ submissions and with the documents before the Court, I have the following views :-

(a)  Doctor’s consultation of 4 times a year is reasonable.  In addition, including vaccinations, a monthly sum of HK$200 is reasonable. 

(b)  The Wife has produced a receipt for body check of HK$3,200 in her 2^nd Affirmation.  I am of the view that body check of once a year is reasonable.

(c)  With the dental expenses, apart from scaling, there may be charges of other services performed by the dentist.  I am of the view that HK$100 per month is reasonable.

(d)  With the eye examination and spectacles, and with the age of the Son, I am of the view that eye examination once a year and a pair of spectacles every 1 to 2 years is reasonable, making it about HK$280 per month.

(e)  With the specialist in nose, I am of the view HK$150 per month is reasonable.

83.  By adding these items, I am of the view that for the Son’s medical / dental, a total sum of HK$1,000 is reasonable.

(iv) Extra-curricular activities

84.  For extra-curricular activities, the Wife claims HK$7,000, which includes regular expenses of HK$4,000 and summer expenses of HK$36,000 per year (making it an additional HK$3,000 per month for the summer expenses). 

85.  The Husband disagrees to summer expenses of HK$3,000, but agrees to HK$4,000 regular extra-curricular activities. 

86.  I am of the view that at this stage, when the Court is yet to hear oral evidence in relation to the reasonableness and the amount for the summer expenses and the summer trip of the Son, I rule that HK$4,000 per month for a F.4 student is reasonable.

(v) Holiday

87.  For holiday, the Wife claims HK$5,000 for the Son, which the Husband disagrees and he suggests nothing should be included under this head. 

88.  I have analysed about holiday expenses in paragraphs 64 to 67 above.  I rule that HK$1,600 per month for the Son is reasonable.

(vi) Insurance premia for the Son

89.  The Wife claims HK$1,240, which the Husband disagrees and proposes nothing should be included. 

90.  From the supporting document provided by the Wife, it clearly shows the monthly insurance premia for the life insurance policy for the Son, with the policy in force since 2006.  I rule that HK$1,240 is a reasonable sum under this head.

(vii) Lunches and pocket money

91.  For lunches and pocket money, the Wife claims HK$2,500.  According to the Wife, transportation fees is included under this head.  She also explains that she has been providing HK$2,000 per month to the Son in the past, and has increased to HK$2,500 as the Son is entering F.4, so as to allow the Son more actively manage his own finances, including buying books for study groups and accessories for his own interests.   

92.  The Husband disagrees and he proposes that HK$1,500 is sufficient, with HK$300 being daily travelling by bus or MTR, HK$660 for lunches (HK$30 x 22 days) and HK$500 for pocket money.

93.  As a F.4 student with extra-curricular activities in school, I am of the view that travelling of HK$400 per month (about HK$100/week), and lunches and pocket money of about HK400 per week (making it HK$1,600 per month) is reasonable.  I rule a total sum of HK$2,000 under this head.

(viii) Entertainment / present

94.  The Wife claims HK$1,000 under this head, which the Husband disagrees and proposes HK$500. 

95.  On a broad brush approach, having considered the background and all the circumstances as a whole, and the need of a F.4 student, I am of the view that HK$600 (of about HK$125 per week) is reasonable.

(iv) Uniform

96.  For uniform, the Wife claims HK$500, which the Husband disagrees and proposes HK$200.  The Husband is of the view that with the receipts of school uniform provided by the Wife which cost a total of HK$845 for winter, the summer uniform should cost the same, if not lower prices, making it HK$1,690 a year (HK$845 x 2) and in average HK$140 per month.  Therefore, HK$200 should be sufficient.

97.  The Wife, in her 2^nd Affirmation, explained that as the Son is going through adolescence, it is necessary to purchase a new set of uniform every year.  Apart from normal school uniforms, the Son also needs outdoor uniforms for physical education lessons, which are not covered in the receipts provided to the Husband.

98.  I accept the Wife’s explanation and I rule that HK$400 is reasonable under this head.

(x) Clothing / shoes and personal grooming

99.  The Wife claims HK$2,000 under this head, which the Husband disagrees and proposes HK$500.  The Husband makes reference to the receipts produced by the Wife and explains further that he is of the view that clothing nowadays is not expensive.  Therefore, he concludes that HK$500 per month for the Son under this head is sufficient.

100.  The Wife explains in her 2^nd Affirmation that she has no habit of keeping receipts for every piece of clothing and shoes purchased for the Son. The Wife made reference to the Son’s health record and showed that he has grown from 149cm to 157cm and to 164cm from July 2015 to March 2016 to July 2017. New sizes of clothing and shoes are required more frequently.  

101.  I accept the Wife’s explanation that the Son is growing up fast and new shoes and clothing may be required more frequently.  However, on a broad brush approach and with the evidence before the Court, I am of the view that a monthly sum of HK$2,000 for a F.4 student under this head is excessive.  Besides, the clothing at school is covered already under the head of uniform.  I rule that HK$800 is a reasonable sum.

(xi) Occupational therapy

102.  The Wife claims HK$2,820 under this head, which the Husband disagrees and proposes HK$2,320 (HK$1,920 + HK$400).  The Husband explains that even if the Son needs weekly therapy, it would cost HK$480 x 4, ie. HK$1,920.  Together with the costs of the assessment report of HK$4,800, which the Husband could only see 1 receipt, an additional HK$400 (HK$4,800 / 12months) is agreed. 

103.  In the 2^nd Affirmation, the Wife explained that normally 2 reports are needed every year as they will be submitted to the school and the Education Bureau so that Timothy would be allowed to take extra time during examinations.

104.  Having considered parties’ submissions and the evidence before the Court, I accept the Wife’s explanation and I rule that the sum of HK$2,800 is reasonable under this head.

105.  To summarise, for the 1^st issue, I have to point out that for the present application, the court could not resolve factual disputes and should only take a broad brush approach in the determination of the reasonable sums with reference to the standard of living of the parties during marriage. 

106.  The educational background and earning capacity of both the Husband and the Wife will have to be investigated further in detail during the ancillary relief trial.  Whether the Wife should re-enter the labour market and find a job, given her educational background and previous work experience, especially with the age of the 2 Children now, would no doubt be an area to look into during the ancillary relief trial.  But for the purpose of this application, I will not look into this area of earning capacity.

107.  Another point I need to make is that the items of expenses provided by the Wife are estimates only and they are bound to vary from month to month.  The court can only rule on the reasonable and immediate needs, with reference to the standard of living during marriage on a broad brush approach, and to exercise discretion.

108.  As a result, I rule the reasonable expenses of the Wife and the Son as follows :-

For general expenses:-

Items	Amount HK$
Rental expenses	14,000
Utilities	1,200
Food	6,000
Insurance premia	2,132
Household and other expenses	5,000
Total:	28,332

For personal expenses:-

Items	Amount HK$
Meals out of home	4,000
Transport	800
Clothing / Shoes, Personal grooming, haircut and cosmetics and Entertainment / present	2,500
Holiday	1,600
Medical / Dental	1,000
Insurance premia	2,000
Total:	11,900

For the Son’s expenses :-

Items	Amount HK$
Extra tuition fees	4,500
School books and stationery	500
Medical / dental	1,000
Extra-curricular activities	4,000
Entertainment / present	600
Holiday	1,600
Clothing/ shoes and personal grooming	800
Insurance premia	1,240
Lunches and pocket money	2,000
Uniform	400
Occupational therapy	2,800
Total:	19,440

109.  By adopting a broad brush approach, I apportion about half of the general expenses to the Son and rule that the reasonable sum for the Son rounded up to HK$34,000 and the reasonable sum for the Wife being HK$26,000.

Can the husband afford to pay the sum? (Issue 2)

110.  The Husband has provided his expenses breakdown in his Form E, which was later revised in his Affirmation.  In his Form E, he claimed for a total sum of HK$56,495, which was later reduced to HK$9,762 in his Affirmation (with details summarised in paragraphs 31 and 32 hereinabove).

111.  Counsel for the Wife, Mr. Leung, criticised the Husband having revised his expenses to such a low level for tactical purpose. 

112.  According to counsel for the Husband, Ms Kwan, the reason to revise and to lower his expenses is because his income is so low that he has to cut the expenses, and he expects the Wife and the Children to do the same.

113.  According to the Husband, he now works at K Property Agency Limited, and he is still holding 20% shareholding of the company.  His income is based on commission and is market driven.  As the business is not doing well, therefore his income is low and cannot afford to pay the amount the Wife requested.

114.  In the Husband’s Form E filed in May 2017, he has monthly income of HK$52,334 in average, comprising of commission from K Property Agency Limited of HK$10,667 and director’s fees from GF Limited in the sum of HK$41,667.

115.  In the Husband’s Affirmation filed in July 2018, he explained that he had resigned as a director of GF Limited in April 2018 and he is no longer entitled to any director’s fees.  Based on the tax return for the year ended 31 March 2018, his annual income from April 2017 to March 2018 was HK$342,160 (ie. HK$28,513 per month in average).  The Husband further explained that since 1 April 2018 up to the time his Affirmation was filed on 16 July 2018, he has not had any successful transactions completed and he has zero income so far.

116.  I notice, in fact, according to the Husband, his income is so low that he could not even afford to pay HK$36,000, which he has offered to continue to pay for this MPS hearing.  The Husband’s case is that he has been borrowing money from his brother to meet ends.  From October 2017 to June 2018, the Husband has borrowed a total sum of HK$650,000 from his brother, and according to the Husband, the money borrowed is interest bearing.

117.  According to the Wife, the Husband has the ability to pay and has more than sufficient financial resources to meet the Wife and the Children’s needs, from:-

(a)  His income / commission of at least HK$28,513 per month received from K Property Agency Limited;

(b)  His earning capacity of at least HK$41,667 per month as a director of GF Limited;

(c)  The rental income of HK$83,960 that he is entitled to from the properties held by GF Limited and from the Mody Road Property;

(d)  His ability to raise funds from his entitlement to the properties in GF Limited and Mody Road Property.

118.  In relation to the Husband’s income, he confirmed that as shown in his tax return for the year ended March 2018, he earns income of about HK$28,513 in average from K Property Agency Limited.  The Husband clarifies in his Affirmation that this is currently his only source of income. 

119.  The Wife has reservation as to whether the income of the Husband is as low as alleged.  Apart from the income/commission the Husband received, it seems that the Husband gets other form of financial resources from K Property Agency Limited.  As shown in an official receipt from a travel agency, with attention to K Property Agency Limited, for the family trip to Birmingham in June 2016 for HK$35,760, it seems that K Property Agency Limited has paid for the family trip.

120.  As submitted by Mr. Leung, about the director’s remuneration received from GF Limited, the audited financial statements of GF Limited do not show the breakdown of the directors’ remuneration nor has the Husband provided any documents, such as management accounts to show what the actual breakdown of directors’ remuneration was between the 5 directors.  From the Husband’s own assertion, as shown in his Answers to Questionnaire / in his Form E, without any supporting documents, he received the following amount as directors’ remuneration :-

(a)  In 2014, he did not receive any directors’ remuneration

(b)  In 2015, HK$240,000 (ie. in average HK$20,000 per month)

(c)  In 2016, HK$410,000 (ie. in average HK$34,166 per month)

(d)  In 2017, HK$41,667 per month

121.  The Husband explained that as he is no longer a director of GF Limited since April 2018, he is no longer entitled to payment to the director of GF Limited.  In relation to the rental income of GF Limited, the Husband explains that GF Limited is his mother’s property holding company, with shareholding given to the 4 sons, including the Husband.  The property rental income received was used to pay off mortgage loans and expenses of GF Limited.  No dividend was ever declared by GF Limited, even if the Husband is entitled to.

122.  The Husband further explains that in relation to the Mody Road Property, he is one of the registered owners of the property together with his mother and 2 siblings, holding on trust for their mother.  It is the Husband’s case that the rental income is applied towards paying off loans for GF Limited, and he never had access to the rental.

123.  I have considered parties’ submissions and the evidence before the Court carefully. With GF Limited being a limited company and the Husband only having a minority shareholding, I accept that the Husband may not be in a position to distribute the use of the rental income from GF Limited.

124.  But at the same time, I also notice, as rightly pointed out by Mr. Leung, the Husband having been a director of GF Limited for the last 20 years.  In the Husband’s Affirmation, he stated that he had resigned as a director in April 2018 as his “mother no longer needs my assistance in dealing with the company’s matters for her”.  His brothers, NKP and NKH have been directors of GF Limited since at least 2011 and assumingly assisting their mother in GF Limited all along.  There is no detailed explanation as to why the Husband’s service as a director is no longer needed in April 2018, rendering him no longer entitled to directors’ remuneration.

125.  Coincidentally, in around the same period of time, the Husband alleged that he owes his brother, HK$650,000 in total plus interest, with borrowing from October 2017 until June 2018.  It is trite law that the ability to borrow is to be considered as financial resources, which the court will take into account.

126.  What is more alarming is that the Husband contents that the rental income from the Mody Road Property and from the properties of GF Limited cannot be used as he is only a minority shareholder and he requires the consent of his mother or other joint owners or shareholders of GF Limited.  However, as pointed out by Mr. Leung, the Husband is a signatory of the accounts of GF Limited, and from the Husband’s Answer to Questionnaire, it could be shown that he was able to draw directly from the accounts of GF Limited, as summaried bellows :-

(a)  Withdrawal of HK$34,000 on 23 February 2016 from GF Limited account with China Construction Bank;

(b)  Withdrawal of HK$36,000 on 28 March 2016 from GF Limited account with China Construction Bank;

(c)  Withdrawal of HK$36,000 on 26 September 2016 from GF Limited account with China Construction Bank;

(d)  Deposit of HK$50,000 on 22 December 2016 from GF Limited;

(e)  Deposit of HK$50,000 on 23 January 2017 from GF Limited;

(f)  Withdrawal of HK$40,000 on 24 January 2017 from GF Limited account with China Construction Bank;

(g)  Deposit of HK$40,000 on 24 April 2017 from GF Limited.

127.  The Husband explains that for the months of February, March, September 2017 and January 2017, as his business at K Property Agency Limited was not doing well, he was short of funds to pay the Wife and the Children.  He therefore talked to his mother and borrowed money from her for paying the Children.  With the consent of his mother, cheques were drawn directly out of the cheque account of GF Limited with China Construction Bank. 

128.  According to the Husband, the agreement as to the beneficial ownership of GF Limited, the Mody Road Property and the 2 bank accounts, as explained in paragraph 14 hereinabove was for the purpose of not having to drag his 81-year-old mother into the proceedings, and to save time and costs on a preliminary issues dispute.

129.  The background of this case cannot be viewed in a vacuum, but has to be considered in context.  As shown in the Husband’s Form E, :-

(a)  The Mody Road Property is jointly registered in the names of his mother, his 2 siblings and himself as joint tenant, with the estimated present market value being HK$18 million.  The Husband having agreed to having 25% beneficial ownership.

(b)  The GF Limited is holding 5 landed properties, with total estimated market value of HK$130 million, having deducted mortgage of HK$26 million, making it a net value of HK$104 million in total.  The Husband having agreed to having 20% beneficially ownership.

(c)  There are 2 accounts, one with Standard Chartered Bank (with balance of HK$98,235) and one with China Construction Bank (with balance of HK$560,413), with both jointly owned by the Husband’s mother, his 2 siblings and the Husband.  The Husband having agreed to having 25% beneficial ownership.

130.  From the evidence before the Court,

(a)  It seems that K Property Agency Limited, apart from paying income / commission to the Husband, has also paid for and supported the family trip (refer to paragraph 119 above).

(b)  There were amounts in tens of thousands dollars either from GF Limited or bank account of GF Limited transferred to the Husband (refer to paragraphs 126 and 127 above).

(c)  With the Husband’s brother and mother lending money to him when he has financial difficulties as alleged (refer to paragraphs 116 and 127 above).

131.  With the background of this case and in view of the evidence before the Court, I am of the view that it is reasonable to infer that the Husband could raise a reasonable amount of funds either from GF Limited by way of shareholders loan, or through one of his family members such as his mother or his brother by using his interest in those properties as collateral.  Ability to borrow, at least from the Husband’s mother or brother, is to be viewed as financial resources. There is no evidence that the Husband’s family has refused the Husband’s request for financial assistance.

132.  In the circumstances, with the financial resources of the Husband as I have analysed above, I am of the view that the Husband has the ability to pay. 

133.  I have to emphasise that the maintenance pending suit ordered is only an interim measure pending the substantive hearing, and that the amounts awarded could be reviewed retrospectively, so that any over or under-provision as a result of the maintenance pending suit order could always be rectified at the substantive ancillary relief trial.

Orders

134.  I make the following orders :-

(1)  The Husband do pay the Wife maintenance pending suit in the sum of HK$26,000 per month, with the 1^st payment to be made on or before 1^st day of April 2019 and thereafter on the 1^st day of each and every month and until further order of the court.

(2)  The Husband do pay the Wife maintenance pending suit for the benefit of the Son in the sum of HK$34,000 per month, with the 1^st payment to be made on or before 1^st day of April 2019 and thereafter on the 1^st day of each and every month and until further order of the court.

(3)  The above payments are to be deposited into the Wife’s designated bank account.

135.  Although the Wife does not succeed in all her claims for maintenance pending suit, the undeniable fact is that she has to come to court before she could get the MPS as now ordered.  In the circumstances, I am of the view that it is fair for the Wife to get the costs of her application for MPS, including all costs reserved.  This is a cost order nisi, which shall be made absolute after the expiry of 14 days from the handing down of this judgment.