WONG SIN YEE v. CHEUNG SI YAN

IN THE COURT OF APPEAL

1996, No. 222
(Civil)

- Headnote -

Matrimonial proceedings - Financial provisions for wife - Judge "slicing up a small cake" best he can - Ambit for reasonable judgment in such cases is wide - Judge having weighed all relevant considerations properly Court of Appeal cannot interfere.

IN THE COURT OF APPEAL

1996, No. 222
(Civil)

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J U D G M E N T

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Litton, V.-P.:

Introduction

1. This appeal concerns an order made on 27 July last year by HH Judge Hartmann in proceedings for ancillary relief, following the dissolution of the parties' marriage. The appellant before us is the husband. The respondent is the wife.

2. The parties were married in October 1976 and, as the judge puts it, they lived together until the early part of 1995 when unhappy differences resulted in the wife leaving the matrimonial home. There are two children, a boy and a girl. In July 1996 when the judge made his orders the boy was aged 14 and the girl 9.

3. The orders of 27 July 1996 are as follows:

(1) The husband to pay to the wife $2,500 per month by way of periodical maintenance;

(2) The husband to pay to the wife 30% share of his provident fund with the Bank of East Asia when the same falls due to the husband;

(3) The husband to inform the wife when the provident fund falls due;

(4) A lump sum equivalent to 25% of the net value of the matrimonial home - Flat 7C, No. 44 Nassau Street, Mei Foo Sun Chuen - to be secured by a legal charge over the property, the charge not to be exercisable until 1 August 2006 (when the girl will be 19) or if the property is sold earlier.

4. The judge subsequently awarded the costs of the application to the wife.

5. The husband now appeals as follows:

(a) Given the orders for maintenance at $2,500 per month and the 30% eventual share in the provident fund, the judge should not have ordered that the wife should get 25% of the net equity in the Mei Foo Sun Chun flat when it is sold; this apportionment of 25% to the wife is manifestly excessive; and

(b) the judge should have left each party to pay his or her own costs, particularly having regard to the fact that the wife was legally-aided but the husband was not.

The background facts

6. The husband has, since before his marriage, worked in the Bank of East Asia and has therefore been an employee there for over 20 years. His average monthly income at the time of the hearing last year was $19,600 per month. He has, throughout his employment, been contributing to a provident fund and will continue to do so until his retirement, which will not be for another 15 years or so. The present value of his entitlement is approximately $1m. The husband has worked his way up from a lowly position in the Bank and has prospects of further promotion, with obviously a corresponding increase in salary.

7. In July last year the husband had debts of about $100,000 owed to various credit card companies.

8. As regards the flat, this was purchased partly by means of money provided by the husband's parents and partly by way of a mortgage loan taken out by the husband with the Bank of East Asia, in respect of which he was paying, in July last year, about $3,800 a month to the Bank. The property was bought in early 1990 and the husband, his parents and the two children have lived there ever since: the wife was living there of course as well until she moved out in early 1995.

9. Since leaving the matrimonial home the wife has clearly had a difficult time. She was accommodated by her brother, sharing a bed in the living-room. Until the judge's order in July last year for maintenance she was getting $1,000 a month from the husband. She worked as a waitress earning on the average about $5,400 per month. If she should lose the roof over her head as provided by her brother she would be in a most vulnerable position: And the judge found that the brother was thinking of getting married; if that occurred, the wife would have to move out.

10. As things stand at present, the disparity in the positions of the parties is striking: The husband continues to live in the matrimonial home with the children and his parents, paying approximately $3,800 a month towards discharging the mortgage. He has a secure position with the Bank. The wife lives in crowded conditions with her brother earning about $5,000 a month as a waitress and may soon have to find accommodation of her own. She has virtually no ability to make savings to secure her old age.

The judge's evaluation

11. The judge painstakingly analysed the factors set out in section 7 of the Matrimonial Proceedings and Property Ordinance.

12. In a case such as this there is no such thing as the "right" solution. All a judge can do is to carefully weigh the relevant considerations and come to a conclusion best he can. The ambit for reasonable judgment in a case like this is large.

13. The judge, wisely, looked not only to the immediate present but also to the future. There, the prospects for the wife are not rosy. The 30% share in the provident fund, to accrue in about 15 years' time, will not enable her to buy property and secure a roof over her own head. By that time she will be in her late fifties and will find it difficult to get employment. Moreover, she is suffering from arthritis now and that condition could only get worse. So how is she to be cared for financially? Counsel says she can always go back to the court to apply for an increase in maintenance. But an order in ancillary relief proceedings predicated upon further litigation in the future is obviously not an ideal solution. The judge resorted to the only practical solution and gave her a 25% share in the equity of the Mei Foo Sun Chuen flat. This works out to something less than half of the husband's own entitlement.

Grounds of appeal

14. Counsel for the husband submits that the judge should at most have ordered that the wife be given a 6% share in the equity of the property and that anything more is manifestly excessive. This is, he says, particularly so having regard to the fact that, between the time of purchase and the date when the wife left the matrimonial home - that is, between early 1990 and early 1995 - the wife had made little contribution to the acquisition of the property. I cannot accept this submission. It seems to me to be beside the point. The judge was not assessing the wife's property interest in the flat at the time he exercised his judgment. On the assumption that, in July 1996, the wife had no equity in the flat and that the husband had a 60% interest, the just solution, according to the judge, was to give to the wife 25% in the equity - a transfer of property in her favour which was to be postponed for 10 years and secured by the legal charge.

15. In my judgment, nothing we have heard suggests that Judge Hartmann had erred in the exercise of his judgment.

Costs

16. As to the costs in the court below, the judge awarded the costs to the wife. This, counsel submits, is wrong in principle. He submits that in the Family Court whilst costs are in the discretion of the court they do not normally follow the event. This statement as a broad statement of principle is correct but that does not rob the judge of his overall discretion. He has weighed the matter carefully having regard to the respective positions of the parties and in the exercise of his judgment ordered that the husband should pay the wife's costs in the court below. I cannot see how it can be argued that he has erred in principle.

17. For these reasons, the appeal must be dismissed.

Bokhary, J.A.:

18. I agree.

Godfrey, J.A.:

19. The judge, in this difficult case, exercised his discretion, in dividing between husband and wife what is really quite a small cake, in a manner which may be thought by some to have been generous to the wife; but not, as it seems to me, so excessively generous as to justify our interfering with the judge in this exercise of his discretion.

20. I, too, would therefore dismiss this appeal on the substantive point. So far as costs are concerned, I would myself have made no order as to the costs below; but the order made by the judge was clearly made within a proper exercise of his discretion and I would not interfere with it.

[submissions on costs of the appeal]

Litton, V.-P.:

21. We now deal with the costs of the appeal. By our judgments, we concluded that this appeal is wholly without merit. It has been dismissed. In these circumstances the proper order is that the appellant, the husband, should pay the wife's costs and there will be an order that the wife's own costs be taxed under the Legal Aid Regulations.