MCYP v. CWYW

FCMC 11432/2018

[2022] HKFC 19

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 11432 OF 2018

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DECISION

( Variation of Maintenance Pending Suit )

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Introduction

1.  This is an application by the Respondent wife (“W”) to apply for upward adjustment of her maintenance pending suit (“MPS”).

2.  The Petitioner (“H”) and W are both in their fifties and were married in 1995.  H filed a petition for divorce on 5 September 2018, it was a long marriage of 23 years.  H and W have three children aged 23, 20 and 17 (“the Children”).

3.  An Order by consent with H’s undertakings was made on 30 November 2018 (“the Consent Order”), the main terms are essentially (1) H shall pay W her MPS at HK$120,000 per month; (2) H shall provide W (i) usage of credit cards for the expenses of W and the Children up to HK$30,000 per month and HK$60,000 per month respectively; (ii) the matrimonial home for W to live; (iii) travelling and overseas accommodation for W and the Children; (iv) the use of the current domestic helpers and driver; (v) the club facilities and (vi) Chinese medicine and consultation fees up to HK$90,000 per month for 12 months; and (3) H undertakes to pay school fees, tuition fees, school related expenses, living expenses (including pocket money) for the Children.

4.  H’s undertaking to pay for W’s Chinese medicine and consultation fees (“the Undertaking”) expired after November 2019.  Parties reached an agreement (“the Agreement”) for an extension of 12 months for this item but for a lesser amount capped at HK$60,000 per month.  H refused to continue paying for this item since June 2020. 

5.  W now applies for a variation of her MPS from HK$120,000 to HK$180,000 from September 2020 and H to reimburse W her Chinese medicine and consultation fees between HK$153,000 June and August 2020.

H’s Undertaking

6.  The term of the Undertaking for payment of Chinese medicine is as follows:

“AND UPON the Petitioner undertaking to the Court and to the Respondent that he will directly settle all Chinese medicine and consultation fees of the Respondent’s Chinese medicine doctor(s) within 2 days after an invoice by the Chinese medicine doctor is issued for the next 12 months from the date of the Order provided that the total costs of which is capped in the sum of HK$90,000.00 per month”.

H’s Refusal to Pay for Chinese Medicine

7.  In the letter dated 2 June 2020 from H’s solicitors herein, H considered himself no longer under an obligation to continue to settle the invoices.  H asserted that it continued to be unclear what health issues W had and why she needed such amount of Chinese medicine.  W disregarded his concern that W’s purchase at the medicine company she mostly visited (“SM”) for high mark-up prices and were more expensive than other sellers.  W was considered not acting in good faith and intentionally deceiving H and taking advantage of his good intentions. 

H’s Case

8.  H’s case that it is not reasonable for W to consume Chinese medicine and the amount of her consumption is not reasonable.   Moreover, the Chinese medicine W purchased was over-priced.

9.  Mr. Chan, Counsel for H, further submits there is no change of circumstances that justifies the variation of MPS.  

H’s Letter dated 9 December 2020

10.  In his written submissions, Mr. Chan attached a letter from H’s solicitors to W dated 9 December 2020 as part of his submissions which he said contained a succinct summary of H’s case and position.

11.  It was claimed in the said letter that H all along understood that W had real medical needs and he was misled into believing that the Chinese herbs purchased by W were properly prescribed by lawfully licensed Traditional Chinese Medicine professionals.

12.  It was asserted that H would be willing to continue to pay for and reimburse W’s expenses upon presentation of proper medical diagnosis and prescription from a lawfully qualified doctor.

13.  There was an allegation that W had artificially inflated the expenses on Chinese medicine in 2017 by reference to invoices from August 2016.

14.  Undoubtedly, Ms. Yip, senior counsel for W, complains about Mr. Chan’s reliance on this letter for it clearly intended to introduce new evidence and allegations when it was sent after parties had already filed affidavit evidence pursuant to the Court’s directions. 

15.  I agree with Ms. Yip.  Matters referred to in this letter would be disregarded.

W’s Case

16.  Ms. Yip stresses that this is an ultra-big money case, the amount now in dispute is a minor amount, no resources should be wasted on interlocutory applications as such and the determination of this should be left to trial.

17.  Mr. Chan does not agree that this is automatically an ultra-big money case, H’s wider family wealth is not relevant.  W must show merits in her case.

18.  While I largely concur with Ms. Yip’s proposed approach, I do not consider it right to totally ignore merits of parties’ respective cases before making a decision.

Change of Circumstances

19.  Mr. Chan submits that this Court has to pay regard to the old order as may be thought appropriate and should consider whether there has been a change of circumstances.

20.  Mr. Chan relies on HCTT v TYYC [2008] HKFLR 286  citing the following paragraphs:

“Almost invariably, an application to vary an earlier periodical payments order will be brought on the basis that there has been some change in the circumstances since the original order was made; otherwise, except in exceptional circumstances, the application will, in effect, be an appeal. If an order is not appealed against, or is made by consent, then the presumption must be that the order was correct when made. If it was correct when made, then there will usually be no justification for varying it unless there has been a material change in the circumstances” (§15 citing Garner v Garner [1992] 1 FLR 573)

“Thus, although the jurisdiction to vary is untrammelled, normally the earlier order would not be varied unless there has been a material change in circumstances” (per Tang VP (as he then was) §16).

21.  Ms. Yip points out that the modern approach in dealing with an application for variation is for the Court to look at the matter de novo and highlighted the following paragraph:

“The modern approach, as required by section 11(7), is for the Court to consider all the circumstances of the cases. The Court is not required to proceed with the starting point of the original order but look at the matter afresh: Flavell v. Flavell [1997] 1 FLR 353 at 357B following Lewis v. Lewis [1977] 1 WLR 409 and Garner v. Garner [1992] 1 FLR 573”

22.  Ms. Yip further refers to Jackson’s Matrimonial Finances and Taxation, 9th edn., at §3.154 that reads:

“The modern approach is that the court has to consider all the circumstances of the case, and the court is not hide-bound by the existence of a previous order; the court must look at the matter de novo and make an order that is reasonable in the current circumstances.”

23.  Ms. Yip submits that change of circumstances or radical departure from the parties’ previous stance is but one of the circumstances which the Court will consider and not the sole guiding criterion. 

24.  For completeness, it would be useful to look at the remaining paragraph 15 [HCTT v. TYYC [2008] HKFLR 286 at 290 §15 citing Garner v Garner [1992] 1 FLR 573 :

“But as Garner v Garner [1992] 1 FLR 573 shows that does not mean that the earlier order, whether made by consent or not, carries no weight. How much weight should be given to the earlier order must depend on the circumstances.

Cazalet J said in the English Court of Appeal:

…

Following Lewis v Lewis, by which decision this court is bound, a court on the hearing of an application to vary is fully entitled to look at all the relevant matters set out in s. 25 of the Matrimonial Causes Act 1973. On occasions, the court may be slow to accede to an application to vary a consent order; not least because the parties’ solicitors might otherwise be deterred from either seeking to negotiate such a provision or to achieve finality. Another factor which may influence a court will be the time that has passed since the original order was made. If an application consequent on an order is brought very soon after that order has been made, the court, in normal circumstances, is likely to attach more weight to the earlier order than if it had been made some years previously. Likewise, the court would expect to pay full regard to any special terms agreed between the parties at the time the original order was made - as, for example, when endorsements on briefs or contemporaneous correspondence show that an agreed order has, for some particular reason, been set at an artificially low figure. Shortly stated, the court must decide what weight it should attach to the original order and all the surrounding circumstances. However, once an application to vary is before it, the court is fully entitled to make an order considering all the circumstances afresh, paying such regard to the old order as may be thought appropriate.”

25.  I consider both Ms. Yip and Mr. Chan are correct on the law, the only difference is where they put their emphases.  I accept that the Court must take into account of the Consent Order but what weight to be attached must depend on the circumstances.

26.  The present application for variation was taken about 20 months after the Consent Order had been made on 30 November 2018.  The Undertaking had long expired.  There was no consent order governing the payment of Chinese medicine at the time of the application for variation.  The Agreement was no longer in place as H reneged on it from June 2020. 

27.  Mr. Chan suggests that there was a built-in time limit of 12 months in the Undertaking contemplated and agreed by the parties that W’s medical needs would end and would not last indefinitely.

28.  There is no evidence about the negotiation that led to the Consent Order, in particular, the Undertaking.  In my view, the setting of a time limit in the Undertaking can only be viewed as there being no agreement having been reached between parties beyond the agreed 12 months bearing in mind that it was a consent order for MPS but not a final order.  It does not mean the payment term could not be further negotiated or extended.  Indeed, parties subsequently agreed without court order for an extension of 12 months.

29.  As the item on Chinese medicine was previously covered by the Undertaking and the Agreement, after the refusal to be bound by the Agreement, this item is no longer covered by any order or agreement between parties.  Accordingly, I accept that there is a change of circumstances or at least these are exceptional circumstances. 

Marital Standard of Living

30.  H was born in a wealthy family, he and his siblings, inherited the family wealth and have always been living in a luxurious lifestyle.

31.  H has reportedly owned over HK$370,000,000 in total assets including shareholdings in family related companies as seen from his Form E filed on 14 May 2019.  It is noted that H has only minor shareholdings and no control in these companies that hold substantial amount of asset and he has limited involvement in his family business.  H’s real interest and involvement is reportedly in charitable and social work.  It is noted that H’s case is there should not be a clean break between W and him by reason of W’s spending pattern.

32.  Under the Consent Order, W is paid HK$120,000 per month in cash.  By H’s undertaking, W has a credit limit by use of credit cards up to HK$300,000 per month for her own purchases and expenditure and HK$60,000 for the 3 Children’s expenses.  W can continue living at the matrimonial home of about 8,000 square feet, and enjoying service of domestic helpers and driver free of rent and expenses.  W can stay free of costs and payment at the London apartment.  W can have continuous use of facilities of several clubs with reasonable expenses.   H will continue to settle all school fees and living expenses for the 3 Children.  H will continue to pay for travelling expenses of W and the 3 Children for first class flight tickets and 5-star hotel accommodation for 3 US trips, 5 UK trips and 3 Asia trips per year.  And finally, W could have up to HK$90,000 per month for Chinese medicine for 12 months.

33.  In my view, the above consent agreement should sufficiently reflect that W enjoyed a very high standard of living of W during the marriage.  Reasonableness of W’s needs should be assessed accordingly taking into account F v F (Ancillary Relief Substantial Assets) [1995] 2 FLR 45 in which Thorpe J gave guidance on the exercise of the court’s discretion in big money cases as follows: 

“...I think that it is necessary to establish a yardstick that more nearly reflects the standard of living which has been the norm for the wife ever since marriage and for the husband for considerably longer.”

H’s Expert Opinion

34.  H obtained an opinion (“the Opinion”) from a Chinese medicine practitioner, Dr. Wong who prepared a report dated 1 November 2020. 

35.  Based on the Opinion, H attacked the purported diagnosis made by W’s doctors that they failed to comply with the professional rules of the Chinese practitioners and that SM could be in breach of the authorized protocol and/or regulations.

36.  Dr. Wong also commented on the price of the Chinese medicine that W purchased and that W’s bulk purchase was seemingly for commercial purpose but not for medical purpose. 

37.  W expressed disagreement to the Opinion.  Dr. Wong did not examine W or going through her medical records, it would be unfair and unprofessional to make any comment according to his observation.  Dr. Wong also drew the conclusion that the purchase was bulk based only on quantity. 

38.  I consider W’s complaints justified.  The Opinion was unilaterally obtained by H.  The Opinion was not prepared by a single joint expert pursuant to directions given by the Court, W was not properly given an opportunity to respond.  I also do not consider it right to embark on a mini-trial of these matters that ought to be dealt with at trial.  I will accordingly put very little weight on the Opinion.

Reasonable Needs for Chinese Medicine of such Consumption

39.  W said she started regularly buying and taking Chinese medicine since 2015 or 2016.  

40.  It is not in dispute that W had been taking Chinese medicine before the divorce proceedings.  Based on H’s records of W’s Chinese medicines paid by him since January 2017, H had paid over $1.3 million for the year of 2017 and close to over $2.2 million from January to November 2018.

41.  W said she had a sport accident in 2014, apart from chiropractor, she began to attend and consult the resident Chinese doctors at SM for follow-up treatment, referred to by a friend of H, since June 2016 for treatment.  As a result, her health improved and H was well aware of it.  W was advised by the Chinese doctors at SM for her long-term problem and the injury, recommending long-term treatment and consumption of Chinese medicinal products.  Such recommendations were endorsed by W’s another Chinese doctor, Dr. Law who had treated her for years.

42.  W provided confirmations from Dr. Law dated 19 September 2020, SM dated 8 September 2020 and her chiropractor dated 18 November 2020 in relation to her health conditions.

43.  H alleged in evidence that SM was only a shop for selling Chinese medicine but without a Chinese doctor.  However, this allegation clearly contradicts H’s private investigator’s report that SM indeed had a Chinese doctor.

44.  H questions W’s needs to consume Chinese medicine and complains that she has provided only limited medical proof for her needs, the invoices provided by W from SM were for Chinese medicine only without prescription.  Mr. Chan argues that there has been no prescription from any doctors for W’s ongoing and huge consumption of a variety of extremely expensive Chinese medicine and/or supplements.  There was no suggestion and evidence to show how W’s health would be adversely affected if she does not continue to consume the same level of Chinese medicine.

45.  Mr. Chan also argues that according to the Undertaking that required the production of invoices from Chinese medicine doctor for Chinese medicine and consultation fees, there should be medical diagnosis and medical prescription by a registered Chinese medical practitioner.

46.  Ms. Yip disagrees with H’s interpretation of the Undertaking and submits that the term Chinese medicine is wide enough to cover therapeutic medication, medicinal products and even supplements.   

47.  Ms. Yip further points out that the Undertaking refers to Chinese medicine doctor but not Chinese medical doctor or registered Chinese medical practitioner, there was no requirement that there should be a diagnosis and prescription.

48.  There is no evidence adduced by parties in support of their respective interpretations, my view is that the question of interpretation should be resolved at trial.

49.  H had been paying substantial amount for W’s Chinese medicine even before the Undertaking in 2017 and 2018.  Before the current dispute, H never questioned the invoices provided by W to say that the invoices were without proper medical proof. 

50.  In H’s Form E filed on 25 January 2019, he said “Her mental instability also extends to her lack of judgment and too much wanton spending.  For instance, she buys large quantities of very expensive Chinese medicine, spending some HK$90,000 per month for imagined health issues, when there is no apparent indication of ill health, apart from her mental state.”

51.  It is indeed quite clear that H never really considered that W had a medical condition that required Chinese medicine, yet H agreed to give the Undertaking and agreed to an extension of 12 months after the expiry of the Undertaking, albeit for a lower amount.

52.  Having accepted W enjoyed very high marital living standard and she had been consuming Chinese medicine and H had been paying for this well before the present divorce proceedings, I am satisfied that W has the reasonable needs for Chinese medicine and this item should continue to be allowed as part of the expenses to be covered by maintenance pending suit.

53.  H questions that the products W had been purchasing and consuming were supplements only, and that W changed her case in her affirmation in reply by saying that she bought the supplements as her lifestyle.

54.  I do not agree with H’s interpretation of W’s evidence.  When W explained her needs for Chinese medicine or Chinese medicinal products, she just said it was her accustomed style and standard of living to visit SM and not her accustomed style to hunt around for cheap supply.

55.  W clearly said “I am in need of taking the Chinese medicinal products to maintain and improve my health.  It is also our standard of living and lifestyles”. 

Whether the Products are Over-Priced?

56.  H compared the purchases at another Chinese supplier.  However, the invoices cannot show the quality of the Chinese medicine, it would be difficult to make a direct comparison to say that SM must have over-priced.

57.  H engaged a private investigator who prepared a report dated 27 October 2020 to suggest SM as dishonest, I do not think that this matter in dispute should be resolved at this stage. 

58.  Even H’s own expert, Dr. Wong opined that there would be a huge difference in prices of products like ginseng (Korean, American), Cordyceps, antler, Ah Gau and etc, depending on the grades, categories and origins, not to mention counterfeit.   Dr. Wong admitted he did not have a chance to have examined the actual products bought by W, it would be difficult for him to make an objective determination.He even explained that a lot of Chinese medicine like those bought by W can be both therapeutic medication and supplements.

59.  Overpayment of any item under the MPS can be dealt with at trial and proper adjustment would be made then, I really do not consider it appropriate for this to be argued in this application.

H’s ability to Pay

60.  H does not dispute his ability to pay and it therefore is not an issue in this application.

Conclusion

61.  Adopting a broad-brush approach, I would allow the MPS be varied upward by HK$60,000.

62.  Mr. Chan submits that the correct approach is like the case of SPMK v WCC [2020] HKFC 186 (FCMP No. 250 of 2017; 14 September 2020) in which the court allowed an increase of interim maintenance upon production of receipts for physiotherapy sessions.  The above term was made as a result of the undertaking given by the claimant.  This is not the case here.

63.  I have found that there is a reasonable need for Chinese medicine by W, I do not see why there is a need for imposing any condition. 

64.  The court has an almost unrestricted power to vary its own order retrospectively and to backdate any variation.

65.  I would allow the MPS to take effect from 1 June 2020 as the justice of this case requires.  As W is claiming the sum of HK$153,000 for the months of June, July and August 2020 only.  I would make an order for H to pay this amount separately.

66.  Accordingly, I make the following orders:

1.  Leave be granted for Paragraph 1 the Order made on 30 November 2020 be varied to the extent that the Petitioner do pay the Respondent a sum of HK$180,000 per calendar month as interim maintenance for the Respondent by way of cheque to be addressed to the Respondent commencing from 1 September 2020 and thereafter on the 1^st day of each and every succeeding calendar month until further order;

2.  Credit be given to any sums that the Respondent has paid to the Petitioner from 1 September 2020 onwards; the difference (if any) shall be paid within 14 days from the day of this Order;

3.  The Petitioner do pay the Respondent a sum of HK$153,000 within 14 days from the day of this Order;

Costs

67.  Although I allow W’s application for variation of MPS, whether H would be successful eventually obtaining adjustment in favour of him over the Chinese medicine is yet to be decided after trial.  I consider the proper costs to be costs in the cause.

68.  I further order that that there be an order nisi that costs of the Respondent’s Summons filed on 20 August 2020 shall be costs be in the cause of the Ancillary Relief.