HMSE v. JJS

CAMP 272/2019

[2020] HKCA 139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 272 OF 2019

(ON AN INTENDED APPEAL FROM FCMP NO. 70 OF 2008)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

I.  Factual and procedural background

1.1  T is the child born outside marriage of the applicant mother (‘M’) and the respondent father (‘F’).  M also has a daughter B from a previous marriage.

1.2  After M and F’s relationship ended, M took out proceedings in 2009 against F to claim for maintenance of T.  The proceedings led to the judgment delivered by H H Judge B Chu (as she then was) on 29 April 2009 (‘2009 Order’). 

1.3  In the 2009 Order, it is ordered that : 

(1) F pays M a lump sum of HK$333,520 for the benefit of T within one month;

(2) F pays M periodical payments for the benefit of T at HK$47,500 per month as from 1 May 2009;

(3) The sum of HK$47,500 shall be reduced to a monthly payment of HK$35,000 as from the date of completion of property purchase (see below).

1.4  Also in the 2009 Order, the parties gave various undertakings.  They included F’s undertaking :

(1) to buy a property in his name at a value no more than HK$3.5 million (in Shatin or Mei Foo Sun Chuen) within three months and to provide this property for the accommodation of T, M and B (‘Mei Foo Property’);

(2) to take out a life insurance policy for the benefit of T as sole beneficiary at HK$3 million to provide T the living and educational expenses in case of F’s death;

(3) to use the Mei Foo Property as security for the periodical maintenance of T.

1.5  Subsequent to the 2009 Order is an order by consent made by H H Judge C. K. Chan dated 31 March 2010 (‘2010 Consent Order’).  By this Consent Order, it is ordered that the periodical payments for the benefit of T in the 2009 Order at HK$47,500 each month is to be varied to HK$35,000 commencing 1 April 2010 and thereafter on the first day of each month.

1.6  In the preamble of the 2010 Consent Order, it is acknowledged by the parties that a flat i.e. the Mei Foo Property was purchased by F in compliance with the 2009 Order.  M also acknowledged that she and T were not living in the Mei Foo Property and had no intention in the immediate future to live there.

1.7  In the 2010 Consent Order, the parties also gave various other undertakings :

(1) F is to either provide the Mei Foo Property for M, T and B’s accommodation or,

(2) F is to pay M a sum of HK$12,000 each month if M chooses not to live in the Mei Foo Property.  In such circumstances, F is entitled to rent out the Mei Foo Property for rental income;

(3) The sum of HK$12,000 is independent of the rental income of the Mei Foo Property and is not subject to variation by either party.  This sum is payable monthly until M and T decide to move back to the Mei Foo Property;

(4) If M and T wish to move back to the Mei Foo Property, reasonable notice should be given to F.

1.8  The Mei Foo Property is now free of mortgage.

1.9  M together with T, B and a maid, had previously lived in a rented flat in Mei Foo Sun Chuen (‘Mei Foo flat’) which is not the Mei Foo Property.  Since 2009, M together with her two children and the maid moved home several times.  They have been living in the Tsim Sha Tsui area.  They later moved to live in a flat in Cox’s Road (‘Cox’s Road flat’) in April 2017 where they are now still living.

1.10  On 31 March 2016, M took out an application for variation of the financial provision for T.  She requested the following :

(1) To be released and discharged from her undertaking to agree to accept the sum of HK$12,000 per month on the Mei Foo Property, and for this sum to be increased to HK$45,000;

(2) Periodic payment for T in the amount of HK$35,000 be increased;

(3) Life insurance policy for T in the amount of HK$3 million to be increased to HK$10 million in total;

(4) A lump sum of HK$960,000 for repayment of the debts she had incurred in maintaining T.  Later, this amount was clarified to be HK$3,103,934.40.

1.11  The application was heard by Deputy District Judge Rita So.  By a 76‑page judgment dated 1 March 2019 the Judge held that although F enjoys a comfortable lifestyle, it is not an extravagant one.  He is a horse trainer in Hong Kong and has high earnings.  The overall circumstances of the case need to be considered to achieve a fair result on what is an appropriate amount to grant to T in light of F’s living standards. 

1.12  The Judge did not agree that F’s living standard has increased so substantially that would justify M’s accommodation standard to be ‘upgraded’ to a more prestigious place in Cox Road.  The Judge agreed that since the 2009 Order of H H Judge B Chu, the property market in Hong Kong has substantially changed, justifying M to apply for a discharge or release from her undertaking on the agreed monthly sum of HK$12,000 for the benefit of T.  The Judge directed the parties to seek an updated market rental valuation of the Mei Foo Property or the Mei Foo flat in order to determine this amount. 

1.13  The Judge held that the periodical payments is to be increased to HK$53,000 per month after consideration of many various items including utilities, household expenses, food, foreign domestic helper, part time nanny, car expenses, T’s expenses and allowance for M. 

1.14  M’s request for life insurance policy for T in the amount of HK$3 million to be increased to HK$10 million was dismissed as the Judge held that the existing arrangement is sufficient.

1.15  Although it was alleged by M that a large amount of her loans was borrowed for T’s upbringing which she sought to justify the increased HK$3.1 million lump sum payment, the Judge held that M was unable to show or distinguish on evidence the amounts incurred in maintaining T.  She simply alleged that the borrowed amounts were for ‘everything’.  The Judge accepted F’s proposal that the proper way to deal with the lump sum payment is by way of backdating the difference of the periodical payments since the summons application was issued in March 2016.  So calculated, the amount of lump sum payment was held to be HK$648,000.

1.16  On top of that the Judge accepted the F’s undertakings to reimburse T’s expenses for extra‑curricular activities and extra tuition classes.

1.17  M applied for leave to appeal against the judgment.  The Judge refused to grant leave.  M now renews her application before this Court.  We will consider her application on paper.

II.  Grounds of appeal

2.  M’s grounds of appeal can be summarised as follows :

1)  On accommodation, the Judge placed all her focus on the past orders or judgments but failed to account for T’s current circumstances, interests and benefits.  Since M and T were living in the Cox Road flat, the amount that T should receive on accommodation should be assessed according to the Cox Road flat standard.  M asks for a flat close to where T goes to school.

2)  On lump sum payment, the Judge failed to consider certain items of expense, including purchase of a second hand car, moving costs, extra‑curricular activities of T;

3)  Her own allowance was too low;

4)  The Judge misunderstood her case on the increase in periodical payment.

III.  Legal principles

3.1  Section 63A(2) of the District Court Ordinance (Cap. 336) provides that leave to appeal shall not be granted unless the Court is satisfied that :

1)  the appeal has a reasonable prospect of success; or

2)  there is some other reason in the interests of justice why the appeal should be heard.

3.2  On an appeal from an exercise of discretion (which is the nature of the decision below), the Court of Appeal is not to exercise the discretion afresh but will only do so if the discretion is wrongly exercised when, for example, the Judge has erred in principle, taken irrelevant factors into account, ignored relevant factors or where the decision is plainly wrong which is no different from the requirement that the discretion has been wrongly exercised.

IV.  Our view

4.1  We will refuse to grant leave because it has not been shown that it is reasonably arguable that the Judge’s discretion was wrongly exercised.  Nor has it been shown that leave should be granted in the interest of justice.

1)  On accommodation, M alleges that the Court should take the value of Cox Road flat (rental of $48,000 for the flat and carpark) and use $45,000 as the basis for assessing the monthly payment.  She claims that circumstances have changed since the 2009 Order.  T is now living close to her school.  If F is financially able to pay M at the Cox Road flat level, then M should be entitled to it.

4.2  We are of the view that this point has no reasonable prospect of success.  The Judge had explained that M should not be ‘upgraded’ to the Cox Road flat standard because F’s living standard has not been increased so substantially which may justify the increase.  She also recognized M should be living in a larger accommodation now that the children have grown up, hence the valuation for the new rental allowance is by reference to the 3‑bedroom Mei Foo flat.

4.3  M also complains that the Judge should not have left the matter of valuation to be agreed by the parties.  In our view, as the Judge was not provided with the valuation of the rental of the Mei Foo accommodation, she had to make the Order subject to the agreement of the parties.  M now says the Mei Foo rental has changed from $28,000 to $30,000.  If this is really the case then in our view it is a matter for the parties to consider whether to accept these figures.

4.4  On lump sum payment, M alleges that the Judge failed to consider certain items of expense.  We are of the view that it is clear that it was M who failed to provide the Judge with sufficient supporting documents and particulars to establish her case for these expenses.  There is no merit in this ground.

4.5  On her own allowance, M alleges that it was too low.   We are of the view that it is not helpful for M to compare different judicial decisions, extrapolate comparative percentage increases and deduce what she believes to be a valid increase for financial provision.  We agree with the Judge that the decision is not an arithmetic exercise, but is based on a consideration of all the evidence adduced by the parties.  Simply disagreeing and stating a higher figure, and re‑arguing that F is living lavishly does not advance M’s case.  The Judge had already ruled that F is not living lavishly.  This point has no merit.

4.6  On the issue of the increased periodical payment, in our view the Judge had not misunderstood M’s case.  She had meticulously gone through the individual items.  M had not provided the Judge with detailed accounts of her expense, and the Judge had taken into account what was practical and reasonable in a matrimonial context. The Judge had taken a broad brush approach and exercised her discretion in arriving at appropriate figures for different items of claim.

4.7  Accordingly we will refuse leave to appeal.

4.8  We are of the view that M’s application is without merit.  Under Order 59, rule 2A(8) of the Rules of the High Court, we order that M is not allowed to apply for an inter partes hearing to reconsider this application.

V.  Costs

5.  Although M failed in her application we will not order costs against her as this application is brought for the benefit of the child T.