CSY v. KCK

FCMC 6097/2018

[2020] HKFC 109

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 6097 OF 2018

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J U D G M E N T
(Maintenance pending suit and Interim maintenance)

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THE APPLICATION

1.  This is an application made by the Petitioner Wife by summons filed on 23 September 2019 (“the Summons”) for maintenance pending suit (“MPS”) for herself ($58,000 per month) and interim maintenance for $35,000 per month for the only child of the family who was born in March 2015 (“the Son”). 

2.  With the consent of the parties, this application is disposed of on paper without an oral hearing.

THE LEGAL PRINCIPLES

3.  The applicable legal principles are well established and are not in dispute.  They have been set out in HJFG v KCY [2012] 1 HKLRD 95 from paragraphs 33 to 38 thereof:

“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 re-balancing. 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 marital 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 High Court judge, in TL v ML and Others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263, at 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:

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

ii. 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.

iii. In every maintenance pending suit application there should be a specific maintenance pending suit budget 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.

iv. 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.”

4.  It is also trite that in the event it is found, after a full ancillary relief trial, that there has been any overpayment or underpayment caused by the maintenance pending suit order, the matter can be rectified in the final ancillary relief order made after trial.

REASONABLE NEEDS OF THE PETITIONER AND THE SON

5.  The first question that this court has to ask is what the reasonable expenses of the Petitioner and the Son are. 

6.  The Petitioner has set her and the Son’s expenses out in her Form E affirmed on 25 July 2018.  She has, in her 2^nd Affirmation filed in support of this application on 23 September 2019, further revised many of the items of expenses claimed.  I will refer to those figures below. 

7.  On the other hand, for many of the items claimed, the Respondent has not addressed this court (neither in his Affirmation filed in opposition nor in his counsel’s written submissions) on the reasonableness thereof, save as to submit that the level of reasonableness should be assessed by reference to the changed market situation, and that he is willing to pay the round-up figure of $62,000 monthly as MPS / interim maintenance ($40,000 being reasonable expenses for both the Petitioner and the Son PLUS $21,072.98 being the monthly mortgage instalment claimed to be payable by the Petitioner in respect of the premises in which she is living with the Son).

8.  Despite the Respondent’s approach, I do not agree with the submission of Mr. Li that since the Respondent has not made any submission or adduced any evidence on the reasonableness of the items of expenses claimed, this court should accept those items as reasonable.  In my view, while this court may take the (lack of) stance on the part of the Respondent into account, at the end of the day, the Petitioner still has the burden in satisfying this court that the amounts claimed are reasonable. 

9.  With the above in mind, I turn to consider the expenses claimed.

General expenses

10.  The monthly general expenses claimed are as follows:

Items	Form E (HKD)	2nd Affirmation (HKD)
Mortgage instalments	4,111.80	4,625.00
Utilities (electricity, gas, rates, telephone & water)	2,300.00	2,900.00
Management fees	2,657.00	2,657.00
Food	9,000.00	12,000.00
Household expenses	6,000.00	3,500.00
Domestic helper	Nil	7,060.00
Safe deposit box	72.83	69.00
TOTAL:	24,141.63	32,811.00

Mortgage instalments

11.  As aforesaid, the mortgage concerned is in relation to the premises in which the Petitioner is living with the Son.  It was explained in her 2^nd Affirmation that according to the terms of the mortgage, while the monthly instalment was still kept at a very low level at the time when this application was taken out, such instalment would rise sharply to $17,646.57 in January 2020 and then to $21,072.98 in February 2020. 

12.  The above figures were adopted by the Petitioner from a “first mortgage loan schedule” dated 18 October 2018 issued by Pettico Limited (exhibited as “CSY-13”).  However, it can be seen that the Petitioner’s bank account with Bank of China was only debited for $20,559 on both 3 February 2020 and 2 March 2020[1].  At both entries, the word “Pettico” is printed at the remarks.  This figure of “$20,559” coincides with the repayment amount stated in another “first mortgage loan schedule” dated 8 August 2017 issued by Pettico Limited which was attached to the Petitioner’s Form E.  That being the case, I would adopt the figures of mortgage repayment in this earlier schedule issued in 2017 rather than the one issued in 2018.  I would therefore only accept that the monthly mortgage instalment was increased to $17,123 in January 2020 and $20,559 from February 2020 onwards.

13.  Mr. Yim, on behalf of the Respondent, has confirmed that the Respondent is willing to pay for the mortgage instalments.  I am of the view that given it is reasonable for the Petitioner and the Son to live in the premises concerned, the amount of mortgage instalment should be allowed in full as reasonable expenses.

Utilities

14.  Having perused the bills exhibited to the Petitioner’s 2^nd Affirmation, I take the view that a reasonable amount of utilities should be around $2,500 per month.  I will therefore only allow this amount.

Management fees and safe deposit box

15.  The total amount of $2,726 ($2,657 + $69) per month will be allowed as reasonable.

Food

16.  The Petitioner now claims $12,000 as expenses on food for herself, the Son (who has just turned 5 in March 2020) and their domestic helper.  This amounts to $400 per day, which, in my view, is unreasonably high.  I will adopt $8,000 per month as the reasonable figure.

Household expenses

17.  The Petitioner initially claimed $6,000 under this head in her Form E, but she reduced it to $3,500 in her 2^nd Affirmation.  Despite the reduction, $3,500 is not a small amount.  There is no explanation whatsoever as to how the figure of $3,500 was arrived at or what items were intended to be covered.  I am unable to accept $3,500 as a reasonable amount.  I will only allow $1,500 per month.

Domestic helper

18.  It is not disputed by the Respondent that the family has always had the assistance of domestic helper at home.  That being the case, I accept that it is reasonable for the Petitioner to engage such assistance even though she is now a full-time mother.

19.  From the salary payment record produced, it appears that the Petitioner has been paying monthly salary which is over the statutory minimum to her domestic helper.  The Petitioner has also exhibited invoices which show that she has paid service fees to a foreign domestic helper agent when she employed her domestic helper.  In my view, this court may take such fees together with the air tickets expenses (which the Petitioner is obliged to pay for her domestic helper under the employment contract) into account, although such expenses should be averaged out for 24 months which is the standard term of the employment contract.  Taking all the above into account, I will adopt the figure of $6,500 as the reasonable monthly expenses on domestic helper. 

20.  The general expenses allowed from February 2020 onwards are therefore as follows:

Items	HKD
Mortgage instalments	20,559.00
Utilities (electricity, gas, rates, telephone & water)	2,500.00
Management fees	2,657.00
Food	8,000.00
Household expenses	1,500.00
Domestic helper	6,500.00
Safe deposit box	69.00
TOTAL:	41,785.00

21.  I will round the figure up to $41,786.  Hence, I assess the reasonable general expenses of the Petitioner and the Son at $20,893 each from February 2020 onwards.

22.  It should be remembered that it has been found that the monthly mortgage instalments were kept at a low level at $4,625 up to December 2019, and was only adjusted upwards to $17,123 in January 2020 and eventually to $20,559 in February 2020. 

23.  Therefore, the reasonable general expenses of the Petitioner and the Son in 2019 should only be $25,851 ($41,785 – $20,559 + $4,625).  I would adopt the figure of $25,850 (i.e. $12,925 each).

24.  The corresponding figure for January 2020 is therefore $38,349 ($41,785 – $20,559 + $17,123).  I would round it up to $38,350 (i.e. $19,175 each).

The Petitioner’s personal expenses

25.  Many of the claims made by the Petitioner in her Form E and in her 2^nd Affirmation are, again, different.  They are as follows:

Items	Form E (HKD)	2nd Affirmation (HKD)
Meals out of home	3,000.00	7,500.00
Transport	1,200.00	1,600.00
Clothing / Shoes	2,000.00	2,000.00
Personal grooming (including haircut and cosmetics)	3,000.00	4,000.00
Entertainment / presents	1,000.00	3,000.00
Holiday	1,000.00	2,000.00
Medical / Dental	1,000.00	1,500.00
Insurance premia	8,951.91	9,523.00
Contribution to parents	10,000.00	10,000.00
TOTAL:	31,151.91	41,123.00

26.  While arguing the case on behalf of the Petitioner, Mr. Li has repeatedly emphasised that the Petitioner is entitled to maintain the marital standard of living. While I agree that this court should pay regard to such a standard, at the same time, I think the court should bear in mind the fact that we are concerned with a relatively short marriage: The parties were married in October 2014 and separated in April 2017.  “Needs”, in such circumstances, should be viewed more conservatively than in the case of a long marriage.

27.  I now turn to consider the individual items.

Meals out of home

28.  While the Petitioner originally only claimed for $3,000 as expenses on meals out of home, she has increased her claim under this head to $7,500 in her 2^nd Affirmation.  She did not explain how this 150% increment came about, save to state that this is the amount she spends on meals outside together with the Son and her domestic helper.  Taking into account the fact that she has been allowed $8,000 as food expenses above, the present increased claim of $7,500 is undoubtedly unreasonable.  I will only allow $3,000 per month.

Transport

29.  The Petitioner claimed $1,200 for transportation expenses in her Form E and $1,600 in her 2^nd Affirmation.  She asserted in her affirmation that she used to commune either by taxi or by car (driven by the Respondent).  This is not disputed by the Respondent in his affirmation in opposition.  On such a basis, I agree that the claim of $1,600 per month is reasonable.

Clothing / shoes and personal grooming

30.  The Petitioner claims for $2,000 for clothing / shoes and $4,000 on personal grooming.  In his written submission, Mr. Li for the Petitioner submitted that:

“…W invites the Court to take into account of the fact that their family business being one in jewellery, and when W was the deputy general manager [of the company] for the latter parts of her employment therein, she has always required to keep a respectable attire commensurate with the jewellery profession, especially for ladies. This explains her claims concerning personal grooming, clothing and shoes and presents. W accepts that she no longer works at [the company] and is a fulltime mother now so she no longer has to keep up with such attire but she is on the other hand entitled to her marital standard in this respect.” [2]

31.  Now that the Petitioner is no longer working for the jewellery company, I do not accept that there is any need for her to spend the same amount on clothing and shoes and personal grooming.  I will only adopt $1,000 and $2,000 as the reasonable monthly figures respectively.

Entertainment / presents

32.  To support her claim under this head, the Petitioner alleged in her affirmation that she enjoyed a relatively high standard of living during her marriage with the Respondent and she received from the Respondent gifts such as jewellery and luxury goods valued at $150,000 to $200,000 per year.  With respect, I do not accept receiving presents or buying presents for herself can be regarded as the Petitioner’s reasonable needs at all.  I will therefore disallow this claim in this application.

Holiday

33.  In her Form E, the Petitioner claimed that during the marriage, the family would travel once a year, whereas the Respondent stated in his   Form E that the family would travel twice a year.  However, neither of them specified what the usual destinations were. 

34.  As the Petitioner is only claiming $2,000 under this head, which amounts to $24,000 annually, I would allow this claim in full as a reasonable amount.

Medical / dental

35.  The claim of $1,500 per month is reasonable and I would allow this in full.

Insurance premia

36.  The Petitioner has 2 insurance policies, which she took out with BOC Life (“the BOC Policy”) and Manulife (“the Manulife Policy”) respectively.

37.  The BOC Policy, which seems to be a life policy, was taken out in 2014 and the annual premium payable is $27,393.  I am of the view that this item of expenses is a reasonable one, and will take $2,282 as the monthly expenses.

38.  On the other hand, the Manulife Policy was only taken out in July 2017, in other words, after the parties had separated (even though they were still living under the same roof at the time).  According to a premium notice issued by Manulife, the annual premium (together with levy) payable is $80,078.02, and all premium will be paid up in 5 years.  According to a table exhibited as “CSY-27”, this is not just a life policy. The Petitioner is free to surrender the policy after certain years so as to get paid for more than what she had paid as premium.  As a MPS payment should normally be used towards the applicant’s immediate needs but not for the purpose of achieving capital gain, I am not satisfied this is a reasonable need of the Petitioner as such.  I will therefore not take the Manulife Policy into account.

Contribution to parents

39.  I am of the view that the court should only consider the Petitioner’s own needs, rather than those of her parents.  I will therefore disallow this item.

40.  I summarise the Petitioner’s personal expenses allowed as follows:

Items	HKD
Meals out of home	3,000.00
Transport	1,600.00
Clothing / Shoes	1,000.00
Personal grooming (including haircut and cosmetics)	2,000.00
Entertainment / presents	0.00
Holiday	2,000.00
Medical / Dental	1,500.00
Insurance premia	2,282.00
Contribution to parents	0.00
TOTAL:	13,382.00

The Son’s personal expenses

41.  The claims made by the Petitioner in her Form E and in her 2^nd Affirmation are as follows:

Items	Form E (HKD)	2nd Affirmation (HKD)
Extra tuition fees	1,500.00	2,000.00
School books and stationery	3,600.00	1,300.00
Transport to school (including school bus)	0.00	600.00
Medical / Dental	1,000.00	1,000.00
Extra-Curricular Activities	0.00	3,000.00
Entertainment / presents	1,000.00	1,700.00
Holidays	1,000.00	2,000.00
Clothing / Shoes	1,000.00	1,500.00
Lunches and pocket money	3,000.00	3,000.00
Other Transport	1,200.00	1,200.00
Uniform	560.00	600.00
Food out of home	0.00	1,000.00
TOTAL:	13,860.00	18,900.00

Extra tuition fees

42.  As aforesaid, the Son is just 5 years old, and he is studying in K2.  I do not accept that it is reasonable for him to receive extra tuition.  This item is therefore disallowed.

School books and stationery

43.  The Petitioner explained in her affirmation that this item also includes miscellaneous fees charged by the school.  Having taken into consideration the school books and stationery invoice for the first term of the 2019-2020 academic year (for the sum of $3,550) exhibited as “CSY-21”, I would allow $1,000 as a reasonable sum, which in effect means this court has allowed around $4,900 annually[3]  for miscellaneous fees charged by the school.

Transport to school (including school bus) and Medical / Dental

44.  The Petitioner’s claims of $600 and $1,000 respectively per month are reasonable and I would allow them in full.

Extra-Curricular Activities

45.  On this claim, the Petitioner’s evidence was that:

“As my Son is attending Kindergarten 2, I intend to enroll him into extra-curricular activities based on his interests in the near future. I consider a monthly allowance of HK$3,000 to be appropriate based on the activities he joined last year.”

46.  According to the receipts produced by the Petitioner, the Son had been enrolled for “children wushu” class and “children drawing” class.  A fee of $1,280 was paid on 18 December 2018 for the “second period” and another fee of $960 was paid on 9 April 2019 for the “third period” for these classes.  I would take it that the average fees payable per month would be around $280[4].  She has also produced another circular for choral singing in respect of which $1,200 is payable for 3 months, i.e. $400 per month. 

47.  The Petitioner seems to be suggesting that she will enrol for more activities for the Son other than those activities mentioned in the preceding paragraph. However, even if that is the case, $3,000 per month is no doubt an inflated budget.  I would adopt $1,500 for this item only.

Entertainment / presents and holidays

48.  The Petitioner claims for $1,700 and $2,000 per month respectively. I consider these amounts reasonable and would allow them in full.

Clothing / Shoes

49.  The Petitioner claims for $1,500 per month.  I would allow this in full.

Lunches and pocket money

50.  The Petitioner claims for $3,000 under this head.  From the receipt issued by the kindergarten, it seems that the Son is attending a “PM” class, that means he is not required to pay luncheon fees to the kindergarten.  As such, the cost of lunches should have been included in the Petitioner’s budget for “food” as one of the items for general expenses.  There should not be a separate item of claim.

51.  Given the Son’s very tender age, it is unreasonable to provide him with any “pocket money”. 

52.  Hence, the whole claim under this head should be dismissed.

Other Transport

53.  The Petitioner’s claim for $1,600 as transportation expenses was allowed in full above on the basis that she would normally be travelling on taxi.  That being the case, even if she is going out with the Son, there should not be any additional transportation costs.

54.  Bearing the above in mind, the claim for $1,200 as the Son’s “other transportation” expenses is unreasonable.  I would only allow $200 per month under this head.

Uniform

55.  In support of her claim for costs on uniform, the Petitioner exhibited a receipt for $810 which she spent on the Son’s Winter uniform in October 2018.  I take it that, normally, there is only a need to buy uniform twice every year.  In my view, the claim for a monthly amount of $600 is undoubtedly excessive.  I would therefore allow a monthly amount of $200 on uniform.

Food out of home

56.  The Petitioner claims $1,000 for “food out of home [with her]”.  When I considered the Petitioner’s personal expenses on “meals out of home”, I have already taken into account her explanation that the claimed amount of $7,500 was the amount she spent on meals outside together with the Son and her domestic helper.  Any other claim on meals out of home made under the Son’s name is therefore a duplication and should not be allowed.

57.  The Son’s personal expenses allowed are summarised as follows:

Items	HKD
Extra tuition fees	0.00
School books and stationery	1,000.00
Transport to school (including school bus)	600.00
Medical / Dental	1,000.00
Extra Curricular Activities	1,500.00
Entertainment / presents	1,700.00
Holidays	2,000.00
Clothing / Shoes	1,500.00
Lunches and pocket money	0.00
Other Transport	200.00
Uniform	200.00
Food out of home	0.00
TOTAL:	9,700.00

Total amount of reasonable expenses

58.  To conclude, the reasonable needs of the Petitioner and the Son are assessed as follows:

Period	The Petitioner	The Son	Total
Up to Dec 2019	$26,307[5]	$22,625[6]	$48,932
Jan 2020	$32,557[7]	$28,875[8]	$61,432
From Feb 2020 onwards	$34,275[9]	$30,593[10]	$64,868

59.  It is noted that Hong Kong has been affected by the pandemic since around February 2020.  Since then, all schools have been closed and it has been announced recently that K1 and K2 students (the Son is one of them) will not have to return to school in this academic year.  Hong Kong people (except those who cannot work from home) have generally been staying at home.  Theme parks[11] have been closed. People have been advised by the Government that they should not travel abroad unless it is really necessary for them to do so.  As a result, the Petitioner and the Son must have spent much less in the last few months on meals out of home, transportation (whether to the school or otherwise), clothing/shoes, holiday, school miscellaneous expenses, extra-curricular activities and entertainment.  Even if more expenses should be allowed on food as a result of their having more meals at home, there should still be a reduction of actual expenses in the last few months.

60.  Be that as it may, it appears that Hong Kong people’s lives are getting back to normal gradually, even though it is difficult, if not impossible, to say when people can resume entirely what they have done in the past.  In my view, bearing in mind the broad brush approach which should be adopted herein, fairness can be achieved by taking this factor into account when this court considers the issue of backdating this order rather than adjusting the monthly expenses allowed downwards by reason of the pandemic.

THE RESPONDENT’S ABILITY TO PAY

61.  In his affirmation in opposition filed in October 2019, the Respondent, apart from alleging that the Petitioner’s budget is unreasonably high, emphasized that the business of his solely owned jewellery company has been badly hit by the drastic economic changes, and as a result he was able to pay a total of $44,625 per month as MPS and interim maintenance only.

62.  However, in his counsel’s submissions, it was submitted on his behalf that he is now willing to pay a round up figure of $62,000.  This figure is comprised of $40,000 as what he perceived to be the total reasonable expenses of the Petitioner and the Son, plus the round up figure for monthly mortgage instalment claimed to be payable by the Petitioner.  Even though I have in the end accepted a lower figure for the monthly mortgage instalment, that, in my view, should not affect the Respondent’s representation that it is within his financial ability to pay $62,000 per month.

63.  There is thus only a difference of $2,868 between this figure of $62,000 and the assessed reasonable needs of the Petitioner and the Son for the period starting from February 2020.  The question is, therefore, whether in the view of this court the Respondent has the ability to pay the extra $2,868 per month.

64.  For the purpose of this case, the Respondent has filed a Form E which was affirmed on 5 November 2018.  In this Form E, the Respondent reported that his monthly salary and expenditure were $120,000 and $113,084 (excluding his proposed maintenance amount of $60,000) respectively.  While the surplus was just around $7,000 per month, the Respondent suggested at the time, among other things, that he would pay $60,000 as monthly maintenance, which coincidentally is roughly the amount which he is now proposing to pay via his counsel for the purpose of this application.

65.  Out of the reported monthly expenses in the said Form E, one of the items is “contribution to parents” in the sum of $20,000.  While it is no doubt a good deed on the part of the Respondent to contribute to the living expenses incurred on the part of his parents, in my view, whenever there is a need to rank his priorities, the Respondent should always discharge his obligations on raising his son first.  In other words, if required, the Respondent should use his contribution to parents for the purpose of making sure that the reasonable needs of the Son are satisfied.  Viewed in such light, I hold that the Respondent has the ability to pay a total of $64,868 towards the reasonable needs of the Petitioner and the Son.

66.  In coming to the above conclusion, I have not lost sight of the following two points/questions raised in the written submissions of the Respondent’s counsel, namely:

(1)  As the Form E was made on 5 November 2018, how could that reflect the updated financial position of the Respondent?

(2)  The court should only award “a total MPS of $62,000 in consideration of liquidity hardship [the Respondent] and [his company] are now facing…To award anything substantially higher…would lead to an immediate closure of [the Respondent’s company] which is no good for [the Respondent], no good for its 15 employees, and most importantly no good for [the Petitioner and the Son]”[12].

67.  As far as the Form E made in November 2018 is concerned, it is noted that the Respondent’s solicitors had indeed proposed to the Petitioner’s solicitors by letter dated 28 February 2020 that both parties should file updated Form E by 16 March 2020.  Although such a suggestion was not acceded to by the Petitioner, there was nothing which stopped the Respondent from taking the matter further, for example, by applying for leave to file and serve an updated Form E.  However, the Respondent did not do so.  That being the case, the Respondent has himself to be blamed when the Form E prepared in November 2018, which is his only Form E filed herein, is relied upon in this application. 

68.  Furthermore, as it has been pointed out, in the said Form E, the Respondent himself suggested that a monthly maintenance of $60,000 be paid.  By virtue of his counsel’s written submissions, he is now saying that he is willing to pay $62,000, which must be taken to mean that he has the ability to do so despite his previous representation in his affirmation that he could only afford a monthly amount of $44,625.  This demonstrates that the Form E is not as outdated as alleged.

69.  In relation to the Respondent’s point about him and his company being “ruined” if the court awards any sum as MPS/interim maintenance which is “substantially higher” than $62,000, it must be noted that neither the Respondent nor his counsel had explained further the meaning of “substantially higher”.  On my part, I take the view that $64,868 is not “substantially higher” than the proposed amount of $62,000 because there is only an approximately 4.62% difference between these figures.  More importantly, it is noted that the Respondent has not put in any evidence on how his liquidity would be affected if a “substantially higher” amount of MPS/interim maintenance is ordered.  That being so, this court would not accept the Respondent’s bare assertion on this matter.

BACKDATING

70.  In his written submissions, Mr Li for the Petitioner asked that the order to be made herein be backdated to June 2019, or alternatively 23 September 2019 (i.e. the filing date of the Summons). 

71.  The Respondent’s stance on this application of backdating is vague, to say the least – Although Mr Yim did not object against this explicitly in his submissions, he described this therein as a “sudden insertion” with a footnote stating that this request was not raised in the Summons nor in the Petitioner’s affirmations filed in support of the Summons. 

72.  Even if this is taken to be an objection on the part of the Respondent, I do not think this technical ground can hold water, because even though I agree that this request was not made in the Summons, it is clear that parties had anticipated at the call-over hearing of the Summons (which took place on the following day after the Summons was filed) that “backdating” was going to be an issue to be dealt with in the substantive hearing of the Summons, for the Respondent’s undertaking to pay a lump sum of $40,000 (representing the shortfall of maintenance between June and September 2019 – see further paragraph 76 below) was made in the aforesaid hearing “without prejudice to the Petitioner to argue backdating in her Maintenance Pending Suit application”. The above quotation, which was subsequently incorporated into the preamble of the court order made on 24 September 2019, was included in the draft minutes which the parties submitted to the court at the said call-over hearing, and such minutes had been signed by Mr. Yim himself as counsel for the Respondent. The Respondent and Mr. Yim are therefore not caught by surprise by such “backdating” argument at all.

73.  I now turn to consider the substantive merits of this application for backdating. 

74.  It is undisputed that the court has unfettered discretion in this regard, and it should take into account all the circumstances of the case.  The question is what is a just order to be made.

75.  The first matter that I consider is the liquidity of the Petitioner and how it has been affected by the Respondent’s reduction of payment since June 2019.  According to the undisputed evidence of the Petitioner, the Respondent had initially paid her and the Son a total of $60,000 per month as interim maintenance pursuant to their agreement since March 2018.  After the Respondent had unilaterally cut it down to $20,000 per month in June 2019, the Petitioner had to use her own savings to make ends meet as well as to pay legal expenses.  It can be seen that the Petitioner’s bank account balance with Bank of China had dropped from around $550,000 on 28 August 2019[13] to around $150,000 on 12 March 2020[14].  Having said that, while the Petitioner has exhibited a customer advice which shows that she had around $247,000 in her HSBC account on 30 August 2019[15], she did not disclose the more recent position of that account.  For the present purpose, I would assume that the current balance of the Petitioner’s HSBC account is, at the very least, not less than the balance as at 30 August 2019 because:

(i) In her 2^nd Affirmation (affirmed on 23 September 2019), the Petitioner stated that the savings in her Bank of China account had further dwindled since July 2019 as she had yet to pay legal fees to her solicitors at that time.  She did not mention that she would use her money deposited in her HSBC account at all;

(ii) In her 3^rd Affirmation (affirmed on 26 March 2020), when she asserted that her saving had further dwindled, she only produced her Bank of China passbook in support and did not produce any evidence to show the then balance of her HSBC account.  If the balance of this account had, like the Bank of China account, gone down, there is no reason why the Petitioner would not produce documentary proof in support.

76.  The second matter that I take into account is the amount of shortfall caused by the Respondent’s reduction of payment since June 2019.  Pursuant to the aforesaid undertaking given and the court order made by consent on 24 September 2019, the Respondent had paid the Petitioner a lump sum of $40,000 to cover the shortfall of the maintenance for the period between June and September 2019, and a monthly interim interim maintenance of $40,000 since October 2019.  The combined effect of the above is that the Respondent had paid maintenance for a monthly sum of $30,000 between June and September 2019, and $40,000 since October 2019.

77.  Since the monthly mortgage instalment was only increased from January 2020 onwards, the shortfall between the reasonable expenses and the actual interim maintenance paid was not as large in 2019 than in 2020.  Such shortfall can be shown in the following table:

Month	Maintenance paid (A)	Reasonable expenses[16] (B)	Shortfall (B) – (A)
Jun 2019	$30,000	$48,932	$18,932
Jul 2019	$30,000	$48,932	$18,932
Aug 2019	$30,000	$48,932	$18,932
Sep 2019	$30,000	$48,932	$18,932
Oct 2019	$40,000	$48,932	$8,932
Nov 2019	$40,000	$48,932	$8,932
Dec 2019	$40,000	$48,932	$8,932
Jan 2020	$40,000	$61,432	$21,432
Feb 2020	$40,000	$64,868	$24,868
Mar 2020	$40,000	$64,868	$24,868
Apr 2020	$40,000	$64,868	$24,868
May 2020	$40,000	$64,868	$24,868

78.  On the face of the above table, since the Respondent unilaterally cut the monthly maintenance in June 2019, the Petitioner had been suffering from some hardship because the payment made by the Respondent was not enough to pay off all reasonable expenses on a monthly basis. 

79.  However, one must not lose sight of the Petitioner’s admission that the Respondent had been paying her $60,000 maintenance on a monthly basis since the filing of the Petition herein in May 2018[17] up to May 2019.  According to the finding of this court, such a sum is over and above the reasonable needs on the part of the Petitioner and the Son before the increment of the monthly mortgage instalments which did not come about until January 2020.  At least part of the shortfall as shown in the above table could therefore have been absorbed by the surplus left before June 2019.  If the Petitioner had already spent all those surplus before June 2019, then she would only have herself to be blamed. 

80.  Another important matter which the court should take into account when considering whether the order should be backdated is that, as aforesaid, the actual monthly expenses incurred by the Petitioner and the Son must have been reduced by reason of the pandemic.  As a result, the actual shortfall since February 2020 should be less than that stated in the above table.  In the event this court orders any backdating of the order, there may well be surplus which may be used to offset any previous shortfall.     

81.  Having conducted a balancing exercise of the above factors, I am of the view that, for the purpose of achieving overall fairness between the parties, the order herein should only be backdated for a short period of time.  I will order that the MPS / interim maintenance order be backdated to April 2020.

COSTS

82.  By the Summons, the Petitioner applied for a total of $93,000 for MPS and interim maintenance.  This amount was arrived at on the basis that the monthly mortgage repayment was only $4,625.  Since the monthly mortgage instalment was increased in 2020, the Petitioner, through her counsel’s written submissions, is asking for a total of $109,300 herein.

83.  At the end of the day, this court would only order the Respondent to pay $64,868 per month, and has refused to backdate such an order to the extent as prayed for by the Petitioner.

84.  On the other hand, at the time of the call-over hearing of the Summons, the Respondent was only willing to pay $40,000 as interim interim maintenance.  In his affirmation filed around a month later, he asserted that he should only be paying $40,000 as reasonable expenses plus the amount of monthly mortgage instalment. This stance was maintained in his counsel’s written submissions, even though he acknowledged that the monthly mortgage instalment was no longer $4,625 but more than $20,000. 

85.  By reference to the ruling of this court above, neither party can be regarded as entirely successful, even though the Respondent may be treated as being more successful than the Petitioner.  However, it has been indicated by the Respondent that, even if he were successful in resisting this application, he would ask for “no order as to costs”.  In these circumstances, I am of the view that this court should make an order nisi that there be no order as to the costs of this application.

ORDERS

86.  I therefore make the following orders: -   

(1)  The Respondent shall pay the Petitioner maintenance pending suit in the sum of $34,275 per month, such payment to be backdated to 1 April 2020 and thereafter to be paid on the 1^st day of each succeeding month until further order of the court.

(2)  The Respondent shall pay the Petitioner interim maintenance for the Son in the sum of HK$30,593 per month, such payment to be backdated to 1 April 2020 and thereafter to be paid on the 1^st day of each succeeding month until further order of the court.

(3)  There be no order as to the cost of this application.  This cost order nisi shall become absolute in the absence of application to vary within 14 days hereof.