HUI SHIU WING v. CHEUNG YUK LIN

HCMC000052/1965

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

No. 52 OF 1965

(CIVIL APPEAL No. 40 OF 1967)

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BETWEEN
	HUI SHIU WING	Petitioner
	AND
	CHEUNG YUK LIN alias Loretta Cheung	Respondent

Coram: McMullin, J. in chambers

Date of Judgment: 15 August 1969

 

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JUDGMENT

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1. This is an appeal under r.61 of the Matrimonial Causes Rules from the order of Mr. Oliver, the Deputy Registrar of the Supreme Court, made upon the 22nd of March, 1969, relating to the maintenance of a wife by her divorced husband. The appellant was the respondent in the original Divorce Action No.52 of 1965, her husband Hui Shiu Wing being the petitioner. The husband petitioned upon grounds of desertion. This was denied by the wife who cross-petitioned on grounds containing various allegations of cruelty on the part of her husband. A decree nisi was granted to the petitioner by Sir Ivo Rigby, Senior Puisne Judge, on the 28th of August, 1967, and the cross-petition was dismissed. The wife appealed from his decision to the Full Court and upon the 27th of February, 1968, the decision of the trial judge was reversed and a decree nisi was entered in favour of the respondent against the petitioner. There was an application for leave to appeal to the Privy Council thereafter on the part of the petitioner which was refused by the Full Court on the 16th of April, 1968. The decree became absolute and the marriage was dissolved upon the 11th of October, 1968. An application for ancillary relief was made to the Registrar on the 19th of November, 1968, which at the request of the parties was adjourned to the 27th of December. On that day further directions were asked for and it was directed that further affidavits should be filed for reasons stated in the order. The maintenance application was taken before the Deputy Registrar upon the 6th of March, 1969, and it is from the decision made by him pursuant thereto on the 22nd of March that the wife, the successful respondent in the divorce action, now appeals. There is a cross appeal by the original petitioner against the sum of periodic maintenance awarded.

2. The application to the Deputy Registrar was made under s.28 of the Matrimonial Causes Ordinance, 1967. This section is in terms identical with those of s.60 of the Consolidated Matrimonial Causes Act, 1965, in England. By the decision of the Deputy Registrar the petitioner was ordered to pay, or cause to pay, to the respondent maintenance for herself in the lump sum of $250,000 and also, as from the date of the decree absolute, further maintenance for herself during the joint lives until further order at the rate of $60,000 per annum payable monthly, of which two-thirds was to be secured to the respondent for her life or until further order on security to be agreed or referred to the Registrar in default of agreement.

3. The respondent maintains that the Registrar has had regard to all the proper and necessary considerations in coming to his conclusion and he contents himself with saying that while no considerable objection can be made on any reasonable ground to the lump sum awarded the Registrar had erred upon the side of generosity in favour of the wife in making the order for $60,000 annual maintenance. It may be added, to complete the picture, but at the moment the petitioner is paying to the respondent a sum of $3,200 per month by way of alimony pendente lite pursuant to an order of the Registrar dated 5th of January, 1967.

4. The general circumstances leading up to the marriage of the ...(illegible) and to their oventual divorce are amply disclosed in the judgment of Rigby, J. to which the Registrar has referred in his written decision. Although Blair-Kerr, J. on appeal saw fit to make criticisms of certain findings I think it can fairly be said that the primary facts of the married life of the parties leading to the breakdown of the marriage as disclosed in the judgment of Rigby, J. have not been in dispute. The divergence of results between the court at first instance and the Court of Appeal turned upon the interpretation given by the several judges to these facts. The learned judge at first instance in finding for the petitioner gave it as his opinion that both parties were somewhat at fault although he did not believe that her husband's conduct amounted to cruelty. Of the judges on appeal one only Blair-Kerr, J. unhesitatingly described the husband's conduct as cruel while Mills-Owens, J. and Hogan, C.J. found in effect that, whether or not the husband's conduct amounted to cruelty, it afforded ample reason for the wife leaving her husband and therefore was to be regarded as ?? desertion by him.

5. Mr. Cheung who appeared for the husband and Mr. Zimmern who appeared for the wife on this appeal are in agreement to this extent that Mr. Zimmern supports and Mr. Cheung does not diverge from the approach adopted by the Registrar at the instance of the respondent's counsel in coming to his task. It appears to me, on the authorities cited, that he did approach the matter in the correct way that I too must have regard principally to three things (a) the wife's personal fortune (b) the ability of her husband to pay maintenance and (c) the conduct of the parties. The first of these topics is not seriously in dispute. The wife, who like her former husband, is a child of wealthy parents, is possessed in her own right of properties amounting in capital value to something in the neighbourhood of $100,000. As to this Mr. Zimmern contents himself with saying that her fortune compared with that of her husband is paltry in the extreme. It is common ground also that the wife, who is now aged 32 years, has been living in England for about 4 1/2 years and that she has during that time acquired a diploma in Interior Decoration, a qualification which the Registrar regarded as endowing her with some earning power although there is no evidence to show her present or prospective earnings deriving therefrom. She has remained unmarried.

6. In attacking the order of the Registrar Mr. Zimmern has directed his attention mainly to those matters which he deems to be erroneous in the Registrar's conclusions relating to the conduct of the parties and the husband's ability to pay. On the first of these matters he says that the Registrar, while professing to receive and be bound by the decision of the Full Court, which threw the blame for the break-up of the marriage upon the husband, has nevertheless allowed himself to be influenced by the original decision of Rigby, J. and that he has, covertly as it were, reintroduced for the purposes of his assessment the conclusions of the latter in relation to the relative blameworthiness of the parties. He points in particular to a passage in the decision where having reviewed certain portions of the judgment of the judges on appeal the Registrar said as follows:-

	"It is clearly not open to me as Deputy Registrar in considering the conduct of the parties to the person of this application to draw my own conclusions as to which party (if either) was entitled to succeed on the facts. This has already been done by the Full Court who have dissolved the marriage in favour of the respondent.
	On the other hand it is clearly open to me to absorb all the doubts expressed in the judgment of the Chief Justice and Mr. Justice Mills-Owens."

7. Mr. Zimmern maintained that the error in this passage lies in the fact that the only doubt expressed by either of the judges mentioned related to the question of whether or not cruelty had been established. He points out that none of the judges upon appeal saw fit to impugn the conduct of the wife to any significant degree. I am asked to say therefore that the Registrar erred in coming to a different conclusion from the Full Court upon the evidence taken at first instance and to say that the Registrar should have approached the matter on the basis that the husband was wholly to blame for what happened and that the wife was totally blameless. So far as this contention is concerned it does appear that the point made by the Registrar as point (3) on page 9 of his written decision may not wholly square with the reality underlying the Full Court's decision. The phrase: "considerable doubt and hesitation." appears solely in the judgment of Hogan, C.J. and in the reference made by the Registrar himself to the individual judgments of the members of the Full Court it would appear from what he says on the previous page of his decision (page 8) that he was well aware that the three decisions expressed three separate degree of certainty in relation to the expediency of reversing the decision of the court below. Thus Blair-Kerr, J. was unhesitatingly of the opinion that the husband's conduct amounted not only to constructive desertion but also to outright cruelty while Mills-Owens, J. was not sure that he wanted to go as far as that but was quite certain that the husband's conduct amounted to constructive desertion; the doubt expressed by the learned Chief Justice was a doubt whether the conduct of the husband, while it afforded just cause for his wife separating from him, could amount to constructive desertion. Of the three judges he alone appears to have been in some doubt on this matter and the doubt was resolved in favour of the wife.

8. If this be a misdirection on the part of the Registrar I cannot, however, regard it as being seriously in derogation of his findings. He was perfectly entitled in coming to his conclusion as to maintenance to have regard to all the sources of fact at his disposal including the statements made by the parties in their affidavits and the findings of fact made by the trial judge. He was not entitled to use such evidence in such a way as to suggest that he was overturning the final decision of the Full Court as to the relative blame attaching to the parties and he was careful so to direct himself. I do not find anything in the written reasons for his decision from which it might be inferred that he was departing from the specific finding of the Court of Appeal that it was the husband's conduct which was the effectual cause of the break-up of the marriage. Indeed the very passage he quotes from the judgment of Rigby, J. is a passage in which the trial judge is at pains to apportion some degree of blame to the conduct of the husband. The seventh point which he makes in directing his mind to the conduct of the parties discloses no such criticism of the wife's conduct as would give rise even to the suspicion that he regarded her conduct as materially contributing to the failure of the marriage. I find therefore there is no effective substance in this particular ground of complaint against the decision.

9. There has been considerable debate relating to the evidence upon affidavit and before the trial judge relating to the capacity of the husband to pay maintenance. Mr. Zimmern wishes me to see in the husband an extremely wealthy man whose personal fortune is such that the order made against him in favour of his former wife should be regarded as being almost derisory. Mr. Cheung on the other hand relies on the fact that the husband is a minority shareholder in the two hotel companies from which his income is largely drawn and asks me to say upon the evidence on record that, effectively, the business control of these concerns is in the hands of the elder brother of the respondent and of his father. He points to various elements in the affidavits and in the findings of the trial judge as showing that the respondent is something of a weakling who, though nominally the heir to great wealth, has, by virtue of the manner in which the family dealt with it, little real control even of such assets as are legally his. He asks me to say that effectively during the course of their brief married life together the husband and the wife lived upon the salary of $3,500 per month which the husband drew as a nominal manager of the Shamrock Co., Ltd. In one of her affidavits the wife deposed to her belief that her husband was in receipt of an income from all sources of something in the region of $1,500,000 per annum. Mr. Zimmern in the course of his address to me suggested that from rent of the two hotels alone the husband's income was about $900,000 while his share of the profits might raise the total figure to close on $2,000,000 per annum. At the other end of the scale Mr. Cheung while admitting the very large rents accruing to both brothers from both hotels pointed out the various liabilities in which the husband shares in relation to mortgages upon the properties and overdraft facilities secured from the Hang Seng Bank for the benefit of the Park Hotel Ltd. and he asks me to accept a figure, after all outgoings, of something in the neighbourhood of $300,000 as the effective income of his client per annum. I have been referred to the balance sheets and profit and loss accounts for both the Shamrock and the Park Hotels (these being the principal properties of the husband in debate) but I do not propose to go into these figures in any detail because it does not seem to me to be seriously in dispute from the husband's side that, despite the protestations in his affidavits concerning lack of all effective control over his potential wealth, he is nevertheless to be regarded as a person of considerable means, certainly quite sufficient to cover the payment of any order that could reasonably be made on this application. Mr. Cheung explicitly said that he was not denying that his client had such a capacity and I have no doubt that he has actually or potentially the means to cover any order even were it framed in terms as extreme as the wife seeks. He makes no demur as to his capacity to pay a quarter of a million by way of lump sum together with $16,000 per annum and I have no doubt that if the court were to see fit very considerably to raise the figure of the lump sum the means to pay it would be found by him or made available to him. I put the matter in that way because as it seems to me, there is a certain element of unreality in the husband's declarations of financial inadequacy. While I think it is true that his capital position is complicated and unusual and that he has a little effective say in the running of those concerns from which his considerable potential fortune derives it would be wholly unrealistic to regard him as other than a wealthy young man. If one were to take at their face value the allegations put forward by him in his several affidavits one might be forced to the conclusion that he was effectively in control of his fortune only to the extent of the $3,500 per month which he can claim as manager of the Shamrock Hotel. If that were his true position it is difficult to see why he now confronts the existing order of the Deputy Registrar with such equanimity. It may be that as Mr. Cheung suggests he is not the master of his fortune to the extent that those wealthy husbands were who figure in several of the decided cases cited to me but if he is, as he suggests, the puppet of his father and his brother and if they are, as he suggests, not prepared as shareholders and directors of the several companies to use their powers to advance his interests, it is difficult to see why, on a wage of about $40,000 a year he accepts without demur an order obliging an instant payment of $250,000 together with a continuing liability for the foreseeable future in the sum of $60,000 annually.

10. I turn now to the final and, as it seems to me, decisive point argued in the debate before me as to the proper order to be made. This point also falls under the heading of conduct of the parties and was so dealt with by the Deputy Registrar. It concerns, however, not the circumstances giving rise to the divorce proceedings but rather the manner of life of the two young people during the period while they still cohabited as husband and wife.

11. The parties were married on the 29th of October, 1959, and after their marriage they lived together on the first floor of the home of the husband's parents until mid-October, 1960 when they moved to a flat of their own in Kadoorie Avenue. They lived there until the 29th of November, 1960, the day upon which the wife finally left the matrimonial home. There is evidence that the rent of the latter premises was $1,250 per month. On the evidence before him the Registrar found that the standard of living enjoyed by the young couple was moderate. He found that they lived in much the same style as the husband's parents and, as he put it,: "both families enjoy a comfortable existence but certainly no higher than that." Later he said: "there is no evidence to show that the parties lived extravagantly nor is there evidence to show that the petitioner wished his wife to live in a 'grand manner'." He then found specifically: " .......... that the parties lived economically and unostentatiously and it is this standard of living which the respondent had lost."

12. Now, as I understand Mr. Zimmern's argument, he does not dispute the correctness of the Registrar's finding as to the style of living enjoyed by the husband and wife during their marriage but he vigorously protests his conclusion that that is the style which he must use as a base for his calculation in coming to a figure for maintenance. The merits of various decided cases involving parties of considerable wealth were discussed before the Registrar and out of those he felt that the decision which was of the most assistance was that in Davis v. Davis⁽¹⁾ that decision together with the decision in the later case Brett v. Brett⁽²⁾ are the authorities upon which Mr. Zimmern has mainly relied in this court. Of the two cases Brett v. Brett⁽²⁾ would seem to come closer to the circumstances here in as much as in that case, as in the present case, the court had before it a wealthy husband with a complicated capital position, a wife who was blameless so far at least as sexual propriety is concerned, and who was moreover equipped with a professional qualification giving her a certain earning power, a marriage which lasted for just about one year and an eventual order for a large lump sum payment together with an order for annual maintenance.

In the judgments of both the judges in Brett v. Brett⁽²⁾ reliance was placed upon the dictum of Lord Merivale, P. in the case N. v. N.⁽³⁾ which is as follows:

"I conceive that I must take into consideration the position in which the parties were, and the position in which the wife was entitled to expect herself to be and would have been, if her husband had properly discharged his marital obligation ..........................."

Willmer, J. commenting on this passage in Brett v. Brett⁽²⁾ said as follows page 1012:-

"From this statement of principle it has been argued on behalf of the wife that she is entitled, in effect, to compensation for the loss of the position which she would have held as the husband's wife, and for the loss of benefits which would have accrued to her from living with a husband of such wealth and position. On behalf of the husband, on the other hand, it has been contended that maintenance never has been awarded, and ought not to be awarded on a compensation basis, like an award of damages. For my part, I think this is largely a battle of words. Whether or not it is called 'compensation', I do not propose to depart from Lord Merrivale's test; i.e., the test of taking into consideration the position in which the wife was entitled to expect herself to be, and would have been, if the husband had discharged his marital obligation, the marital obligation being, of course, an obligation to maintain her on the scale appropriate to his station in life."

Commenting on the same test Phillimore, L.J. has the following to say in Brett v. Brett⁽²⁾ at p.1014:

"In my judgment, when considering the words what 'the wife was entitled to expect ...... if her husband had properly discharged his marital obligation', the test must be objective. We must consider what a reasonable husband would normally have provided if equipped with the financial advantages of this particular husband. When reference is made to 'marital obligation', that, I think, does not mean purely legal obligation but the ordinary marital obligation of a husband for the maintenance and proper care of his wife."

13. Mr. Zimmern leans heavily on these passages in particular and he says that the Registrar has misconstrued his duty in assessing the station in life to be attributed to the wife in this case. He has employed, Mr. Zimmern says, a purely subjective test and not the objective test suggested by Lord Merivale in N. v. N.⁽³⁾ read together with the gloss put upon it by Phillimore, L. J. in Brett v. Brett.⁽²⁾. These observations of the judges in Brett v. Brett,⁽²⁾, he says, make it clear that the court should be concerned not with the way the parties actually lived but with an estimation of the style in which they ought to have lived had the husband been maintaining for himself and his wife a standard and style of living appropriate to his actual wealth and station. A wealthy but miserly husband should not be permitted to draw advantage, after the break-up of the marriage (more especially a break of due to his own default), from the fact that while the marriage lasted he treated his wife ungenerously. Put in that way the proposition has obvious attractions. On the other hand Mr. Justice Willmer who in Davis v. Davis⁽¹⁾ delivered the leading judgment of the court (as he later did in Brett v. Brett)⁽²⁾ seems to have understood the dictum of Lord Merrivale in N. v. N.⁽³⁾ in a less objective sense that he and Phillimore, L.J. seem to have attributed to it in Brett. v. Brett⁽²⁾ because he says at p.126:

"There is no doubt that, in assessing an ordinary claim for maintenance, it is proper to have regard to the standard of living to which the wife was accustomed during the marriage; that appears from the dictum of Lord Merrivale, P., in N. v. N., which was cited and followed by Sachs, J., in Schlesinger v. Schlesinger (1960) 1 A.E.R. 721 at p.725. I see no reason why the same should not apply to a claim made under the Act of 1965 for a lump sum payment. If the wife has been accustomed during the marriage to live in a luxuriously appointed house, I think that she is entitled to ask for a lump sum payment of such an amount as will provide her with a standard of living commensurate with that to which she has been accustomed. I use the word 'commensurate', for it must be obvious that she can hardly expect exactly equivalent accommodation; it would not be 'reasonable' to award enough for that."

14. Two separate standards might be said to be discernible in these several quotations. The first, or subjective, standard is the standard to which the wife was accustomed during the marriage and the second, or objective standard is the standard to which she was entitled during the marriage. The latest authority certainly seems to support the propriety of an objective test. I think therefore that when a husband has during the currency of the marriage wilfully maintained his wife either at a lower standard than he himself enjoys or else at a standard shared by him but greatly below what he could reasonably afford, and what his position would reasonably demand, a wife would be entitled to ask that, after divorce, the court should see that she achieved the standard of living from which her husband's meanness or wilfulness had excluded her.

15. That does not seem to be exactly the picture here. The parties certainly to have enjoyed a modest if comfortable standard of existence which may not have been strictly in keeping with the husband's potential wealth as a man of property. It seems clear enough that this was the result of his passive attitude in the face of family custom and family control. No doubt had he had the force of character to assert himself and insist upon the realization of some of his rights as a co-owner of the two hotels he could have seen to it that these sources of income were made to yield for himself and his wife a more impressive competence. He apparently did not choose to do so and was content to accept the familiar and unpretentious style appropriate to the temperament of a spoiled and unambitious younger son content to have the problems of daily life solved for him by the more forceful personalities in his family circle. It must be remembered that these two did not come together suddenly and by chance. There was nothing on the husband's side in the nature of a romantic mispresentation of his intentions in relation to their style in married life. The appellant must have been well aware of the nature of the person she was marrying and of the style of living she was going to share with him and the marriage was, as the trial judge remarks, no precipitate affair but the leisurely result of arrangements between two wealthy families which had known each other for a considerable period of time.

16. It is to be observed also that no complaint ever seems to have been made by the wife concerning her husband's means or the manner in which they lived. For as long as it lasted she too appears to have accepted the style in which she first lived with him. Her complaints were all directed to his alleged cruelty and want of consideration.

17. In view of all these considerations although the style at which they lived seemed certainly to have been more modest than the husband's financial advantages might seem to demand I do not think that his failure to insist upon a better standard for the both of them would amount to a breach of his marital obligation to provide proper care and maintenance for his wife. He is no captain of industry; not a bold, acquisitive and resourceful businessman such as were the husbands in Brett v. Brett⁽²⁾ and Davis v. Davis⁽¹⁾ and any culpability he may have seems to stem from his inability or disinclination to acquire a more responsible place in the family businesses. The Deputy Registrar accepted the evidence that during the marriage the respondent and his wife lived upon his salary as manager. There is no doubt she might have expected a better standard of living than that and I believe that some such consideration must have been at the back of the Deputy Registrar's mind in making the order that he did. On the basis that he was going to make an order for periodic payments to afford the wife a standard of living equivalent to what she had been accustomed to during the marriage, one might have expected that he would have made, at best, an award based upon a figure of $3,000 odd per month.

18. Mr. Cheung indeed argues that the figure of $5,000 should be reduced to $3,200 as the Registrar has been, he says, over generous on this aspect of the order. Mr. Zimmern, as I understood him, did not make any very strong representations in regard to this part of the order. He did suggest at one point that the monthly payments should be related to the lump sum so that if the latter were increased so should the former. Later on he suggested that if the lump sum were raised to the region of a million dollars he would say that the present periodic payments were at least not inadequate. If the sum were larger still the court might absolve from periodic payments altogether. He suggested that the court should protect his client from the frailties and inadequacies of her former husband's nature by concentrating, as it were, upon the lump sum and by making a very substantial award of that nature which would, of course, pass at once into the possession of his client and which, unlike periodic payments, would not be subject to the vagaries of his temperament. The suggestion there was, I think, that the husband was so unreliable a personality that he could not be relied upon to secure his own fortune to such an extent that he would be able for the foreseeable future to provide the periodic payments for his wife. As against this it must be remembered that it was part of the Registrar's order that the $60,000 per annum was, as to two-thirds of that amount, tk be secured upon securities to be agreed or referred to the Registrar in default of agreement.

19. Taking the case as a whole I cannot say that the Registrar has made any obvious error in estimating the many imponderables in the facts put before him. In considering such an award as this certain basic principles should be kept in mind. In the case of Bellenden (formerly Satterthwaite) v. Satterthwaite(2)⁽⁴⁾ ...(illegible) L.J., said as follows:-

"We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere."

This passage is cited with approval in the case of J. v. J.⁽⁵⁾ in the judgment of Hodson, L.J. at p.619 of that report. Again, in Davis v. Davis⁽¹⁾ Willmer, L.J., addresses himself as follows at p.126 of the report:-

"Bearing those considerations in mind, I come to the question: did the judge award a proper sum by way of lump sum payment? The only guidance to be obtained from the words of the statute is that the sum must be such 'as the court thinks reasonable having regard to' the matters to which I have already referred. It seems to me that in those circumstances the question is one very much for the discretion of the judge who has to deal with it. I do not think that it would be right for this court to interfere unless satisfied that the judge below arrived at a wholly erroneous figure. In my judgment an appeal against the quantum of a lump sum award should be approached in very much the same way as an appeal against an award of damages."

20. In the light of these principles I can only say that looking at the award before me, while I might myself have awarded to somewhat higher figure in respect of the lump sum and a somewhat lower figure in respect of the periodic payments, I find myself wholly unable to say that the Registrar's decision exceeds, to use the words of Asquith, L.J., "the generous ambit within which reasonable disagreement is possible" and is so plainly wrong that I, as an appellate court, feel compelled to interfere. I have not referred to all the matters put before me, as for example the question as to the wife's possible prospects of future marriage. This point, and certain other points put to me seem to me to be of minor importance. She is a young woman in her early thirties. If properly secured there is no reason to suppose that the periodic payments will not eventually yield in actual terms of cash received, a sum of money equivalent to and perhaps exceeding the figure pressed upon me by Mr. Zimmern. On the other hand the figure awarded by way of lump sum payment seems to me to be quite adequate for the purpose of securing for her a dwelling place commensurate not merely with the standard which she enjoyed while she lived with her husband but of a standard superior to that. In addition I have been told (and there has been no rebuttal of the suggestion) that a car was given to her at the time of her marriage which, so far as the respondent to these proceedings is concerned, is still in her possession. Effectively therefore the Rogistrar's order has secured to her a better standard of living than that which she enjoyed during the marriage, it will not be the style one might be prepared to accord to the wife of a wealthy, independent and enterprising merchant price. In the circumstances I think it would be reasonable to regard him as such. The evidence on affidavits and otherwise which the Registrar accepted tended to show that this man was very much in the hands of his father and his elder brother so far as the realisation and enjoyment of his potential wealth is concerned.

21. It may be said with some force that this is a finding which has at least the appearance of being in contradiction of my finding that the respondent has the ability to meet the requirements of any order which this court might consider reasonable in the circumstances. In strict logic that may be so but the circumstances of such cases as this are as variable as the subtleties of human and familial relations can make them. On paper this respondent is a very wealthy man. If he had the grit and intelligence to do so he could perhaps realise his potentialities and acquire a considerably more luxurious standard of living for himself. In this regard it is to be remembered that the judge at first instance made an estimate of his character which seems to lend support to the protestations of managerial inadequacy in the respondent's affidavits and it is clear that it was this estimate which weighed heavily with the Registrar in coming to his conclusions. The wife took him as he was with all his faults and with open eyes entered into marriage with him. The venture proved disastrous and there is little doubt that the weakness of his character and the immaturity of his outlook were major factors contributing to that disaster. I think it would be wrong, however, to suggest that such a domestic explosion could have the effect of sending a wife, however wronged and guiltless, to orbit in a sphere of magnificence wholly beyond the realities or expectations of her marriage. For these reasons the appeal is dismissed. The cross appeal is also dismissed.

 

 

	(A.M. McMullin)
	Puisne Judge

 

Representation:

C.V Cheung Q.G. & Swaine (Samusl Soo & Co.) for Petitioner.

A.Zimmern (F. Zimmern & Co.) for Respondent.

Judgment handed down in chambers.

 

 

(1) 1967 (1) All E.R. 123

(2) 1969 (1) All E.R. 1007

(3) 1928 All E.R. 466

(4) 1948 (1) All E.R. 345

(5) 1955 (2) All E.R. 617

HCMC000052A/1965

  

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

  

ACTION NO. 52 OF 1965

AND CIVIL APPEAL NO. 40 OF 1967

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BETWEEN:
	HUI Shiu Wing	Petitioner
	and
	CHEUNG Yuk Lin alias Loretta Cheung	Respondent

Coram: J.R. Oliver, Deputy Registrar

Date of Judgment: 22nd March, 1969.

  

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DECISION

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1. This is a claim for maintenance made by the wife Respondent against the Petitioner following upon a divorce granted to her by the Full Court on the 27th of February 1968. It is to be observed that at the original hearing which took place six months earlier the husband Petitioner was granted a divorce against the Respondent on the grounds of her desertion.

2. This application is framed under Section 28 of the Matrimonial Causes Ordinance, 1967. The Section reads:-

"On granting a decree of divorce or at any time thereafter (whether before or after the decree is made absolute), the court may, if it thinks fit and subject to subsection (3) make one or more of the following orders:-

	(a)	An order requiring the husband to secure to the wife, to the satisfaction of the court, such lump or annual sum for any term not exceeding her life as the court thinks reasonable having regard to her fortune (if any), his ability and the conduct of the parties;
	(b)	An order requiring the husband to pay to the wife during their joint lives such monthly or weekly sum for her maintenance as the court thinks reasonable;
	(c)	An order requiring the husband to pay to the wife such lump sum as the court thinks reasonable."

3. This section follows an identical section in England which was conceived as Section 5(i) of the Matrimonial Causes ...(illegible) 1963, and which later became Section 16 of the Consolidated Matrimonial Causes Act of 1965.

4. It has been suggested by counsel for the Respondent that it is open to me to make an order under each of the three paragraphs of sub-section (1), and that, in particular, because of the enormous wealth of the Petitioner, this is a particularly suitable case to order a lump sum and secured maintenance.

5. Counsel for the Respondent also contended that in working out the amount or amounts which I should award I should pay particular regard to (1) the Respondent's fortune, (2) the ability of the Petitioner to pay, and (3) the conduct of the parties.

6. The reasoning of the Court of Appeal in the case of Davis v. Davis⁽¹⁾ is of great assistance in this case. Not only does it lay down the considerations to be applied in determining what lump sum payment (if any) should be paid but the Court in that case further observed that the word "reasonable" which appears in paragraphs and (c) to sub-section (1) of the English Section 16 of the Consolidated Matrimonial Causes Act of 1965 should be construed as being qualified by the words "having regard to her fortune (if any), his ability, and the conduct of the parties" which words appear in sub-paragraph (a).

7. I do not propose to recite at length the facts which have led up to the Respondent being awarded a divorce against the Petitioner, suffice it to say that I have had the advantage of reading:-

          (1) The Judgment of the trial judge, Mr. Justice Rigby, who, on the 28th of August, 1967, awarded the Petitioner a divorce against the Respondent on the grounds of her desertion without reasonable cause.

          (2) The judgments of the Full Court of the 27th of February 1963 in the form of judgments by the Chief Justice, Mr. Justice Blair-Kerr, and Mr. Justice Mills-Owens whereby the decision of the trial judge was reversed and the Respondent was granted a divorce against the Petitioner; and

          (3) The judgments of Mr. Justice Blair-Kerr and Mr. Justice Mills-Owens sitting in the Full Court on the 16th of April 1963 when they refused the Petitioner's application for leave to appeal to the Privy Council.

8. The application for maintenance in this case is supported by the following application and affirmations:-

	(1)	The application for ancilliary relief filed by the Respondent dated the 14th of September, 1966.
	(2)	The affirmation of means of the Petitioner dated the 26th of October, 1966.
	(3)	The affirmation of means of the Respondent in reply dated the 9th of November, 1966.
	(4)	A further affirmation of means of the Petitioner dated the 3rd of January, 1967.
	(5)	A further affirmation of means of the Petitioner dated the 28th of February, 1969.
	(6)	A further affirmation of means of the R spondent dated the 24th of February, 1969, and
	(7)	A final affirmation of means of the Petitioner dated the 7th of March 1969.

9. For the sake of convenience I will refer to these affirmations from now on as the 1st, 2nd, 3rd, 4th, 5th and 6th affirmations respectively.

10. ...(illegible) and I quote from the 5th edition of Tolstoi on Divorce⁽¹⁾ The form of the decree does not necessarily reflect the relative guilt of the parties and in deciding what amount of maintenance (if any) is to be awarded .... the registrar must assess the conduct of the parties as best he can, not merely from the form of the decree but also from the shorthand note of the judgment and other admissible evidence. This I have done.

11. I propose first to deal with the Respondent's fortune. In the 2nd affirmation she admits that she possess as jewellery worth approximately $30,000.00, and that she is also the registered owner of 8 shares of $10,000.00 each in the family company known as the Carlton Hotel Ltd. Later in her affirmation she said that between 1960 and 1965 she had received the following dividands in respect of her ...(illegible).

	1960	$16,000.00
	1961	$8,000.00
	1962	$8,000.00
	1963	$8,000.00
	1964	Nothing
	1965	Nothing

12. It should not be overlooked that this affirmation was filed on the 15th of November 1966 but the Respondent confirmed in the 6th affirmation that no dividends were received in respect of her shareholding for the years 1966, 1967 and 1968. Apart from these assets she has no other fortune.

13. The Respondent has been living in England since late 1964 and it is to her credit that since leaving Hong Kong she has matriculated and has obtained a diploma in interior decoration. She is now aged 32, and has been living in England almost continuously for four and a half years.

14. A consent order for alimony pendente litem was agreed between the parties on the 5th of January 1967 at the rate or $3,200.00 per month and this sum has been paid by the Petitioner from the date of the service of the Petition on the 25th of June 1966 to the date when the Decree Nisi was made absolute. The Respondent, by virtue of the qualification which she has obtained, does have some earning power.

Since the date of the Decree Absolute the Petitioner has paid nothing to the Respondent and it is agreed that any order which I make will have to take this factor into consideration.

15. The Petitioner's ability to pay is evidenced by the details of his wealth disclosed in the 1st, 3rd, 4th, and 6th affirmations. In particular there were annexed to the 4th affirmation the following audited Accounts.

	The Park Hotel Ltd.	Accounts for the calendar years
		1963 to 1967.
	The Shamrock Company Ltd.	Accounts for the calendar years
		1963 to 1967.
	The Ritz Private Hotel.	Accounts for the calendar years
		1963 to 1967.
	The Sun Sun Emporium.	Accounts for the calendar years
		1963 to 1966.

16. I propose very briefly to summarize the contents of the affidavits filed by the Petitioner which deal with this question of means.

17. The Petitioner is now 35 years of age and it is as a result of the generosity of his father that he finds himself the owner of the assets disclosed in the affirmations.

18. The Petitioner's father bought the land upon which the Park and ...(illegible) Hotels in Kowloon were built. This land stands in the name of the Petitioner and of his brother. The father later formed limited companies to develop the sites and there were built upon them the two hotels. Shares to the value of 48% in each of these Limited Companies were put in the name of the Respondent.

19. In law he is therefore entitled to a half share of the land upon which each hotel is built and 48% of the share capital in the limited companies known as the Park Hotel Limited and the Shamrock Company Limited.

20. In addition he owns the house and land known as No. 16 Marigold Road, Yau Yat Chuen, Kowloon, and a moiety of and in 1/12th of the land and house known as 83 Woo Sung Street, Kowloon.

21. The Petitioner is the Manager of the Shamrock Hotel and is in receipt of a salary of $3,500.00 per month. He has recently re-married.

22. In the 3rd affirmation the Petitioner admitted, after he had been put to proof by the Respondent in the 2nd affirmation that he was also a partner in the Sun Sun Emporium and that he holds 85 shares of $1,000.00 each in this company. He further admitted that he was a partner in the business known as the Ritz Private Hotel and that he holds 15 shares of $1,000.00 each in this business.

23. It is to the 4th affirmation that the detailed accounts of the Park, Shamrock, and Ritz Hotels are annexed.

24. The principle feature of these accounts and affirmations show:-

	(1)	As owners of the land upon which the Shamrock Hotel is built the Petitioner and his elder brother are entitled to a monthly rental of $30,000.00 from the Shamrock Company Ltd.
		The Petitioner's share of this on an annual basis is ...........................................................	$180,000.00
	(2)	As owners of the land upon which the Park Hotel is built the Petitioner and his elder brother are entitled to a monthly rental of $120,000.00 from the Park Hotel Ltd.
		The Petitioner's share of this on an annual basis is ...........................................................	$720,000.00
	(3)	The Petitioner is the owner of 48% of the share capital in the Shamrock Hotel Ltd. ; and
	(4)	48% of the share capital in the Park Hotel Ltd.
	(5)	For the last five years the trading profits or losses of the Shamrock Company Ltd. have been:-

	1963 Profit of	$57,617.92
	1964 Profit of	$7,340.04
	1965 Loss of	$161,885.84
	1966 Profit of	$32,923.49
	1967 Profit of	$35,176.40

(6)

For the last five years the trading profits of the Park Hotel Ltd. have been:-

	1963	$1,775,510.50
	1964	705,019.60
	1965	1,526,949.31
	1966	1,893,209.36
	1967	2,572,118.49

25. The subject of the Petitioner's ability to pay maintenance should not be concluded without reference being made to the substantial legal liabilities which he carries in the shape of a very large mortgage to the Hang Seng Bank Ltd. secured on the land upon which the Park Hotel is built. There are also heavy premiums for which he is responsible to the Crown in respect of the land upon which the Park and Shamrock Hotels are built and also in respect of the Woo Sung Street property.

26. The Petitioners counsel quite correctly emphasised the point that although the Petitioner is a man of considerable wealth on paper he is still a minority shareholder in two private limited liability companies and in the case of the larger, the Park Hotel Limited, he enjoys no managerial privileges. Effective legal control is still firmly in the hands of the elder brother and the Petitioner's father.

27. It is significant that no accounts have been produced of the Shamrock Company Ltd. and of the Park Hotel Ltd. for the last financial year.

28. I do not propose to go further into the details set out in the affirmations and accounts as I am quite satisfied from the figures available that the Petitioner clearly has the ability to pay or alternatively he can arrange for payments to be made of ...(illegible) amounts to cover the orders for maintenance which I propose to make.

29. I must now consider the conduct of the parties.

30. The original hearing of this case at first instance lasted ten days, and the proceedings were spread over the period 31st of July 1967 to the 28th of August 1967. The learned trial judge took pains at the end of his judgment to deal with certain aspects of the conduct of both parties so that he might anticipate the difficulties which fall to my lot now that I have to consider this question of the conduct of the parties in relation to any Order for maintenance.

31. He said:-

"          In conclusion, I would only make these observations: They are relevant in the light of any further proceedings of a different nature which may take place between the parties. In cases of this nature it must be very rare indeed to find that the breakdown and failure of a marriage can be attributed solely to one or other of the spouses. This cases provides no exception. The Petitioner admitted that even during the relatively short period they lived together he was out many evenings during the week leaving his wife at home. He said that this was largely due to the fact that he had to attend business dinners and functions of a business nature at which he had to entertain actual or prospective clients. Such business entertainment often included attending nightclubs and similar places of entertainment. Many of these functions were for men only, but he admitted that some of them were mixed parties, and he further admitted that although on some of these occasions he took his wife, on others he could have done so but did not do so. I have no doubt that the Petitioner found the attendance of these so-called business functions a useful pretext to combine business with pleasure. The incident of being found in the car with another woman in March 1960 and, indeed, his lack of any explanation (either to his wife at the time or to this Court during the course of his evidence) to account for his late return to the Kadoorie Avenue flat on the 29th of November immediately preceding the incident which gave rise to the Respondent finally leaving the house, are matters in themselves which could hardly have conduced to furthering a happy relationship between the parties. Whilst I am fully satisfied that his conduct fell far short of cruelty or constructive desertion, I am equally satisfied that his selfish and inconsiderate behaviour and his attitude towards his wife were matters which, although not sufficient to form a valid defence to a petition for desertion without reasonable cause, contributed in no small degree to the breakdown of this marriage. Those are matters which may well be relevant for consideration if and when any application for permanent maintenance is made by the Respondent."

32. It is true that on appeal the finding of desertion by the Respondent was reversed but the three separate judgments of the Full Court are by no means unanimous in the conclusions which they drew from the facts recorded at first instance.

33. Mr. Justice Blair-Kerr after an extremely detailed review of all the evidence was of the opinion that the appeal should be allowed on the grounds that the husband had treated the Respondent with cruelty and that he was also guilty of constructive desertion.

34. The finding of Mr. Justice Mills-Owens was more cautious, he concluded his judgment by saying:-

"It is only after lengthy consideration that I come to a conclusion different from that of the learned trial judge, but taking the view which I do of the husband's words and actions, and their cumulative impact and effect on the wife I feel bound to conclude that his petition ought to have been dismissed and the wife granted a decree on her cross-petition, if not on the ground of cruelty then certainly on the ground of constructive desertion."

35. The President of the Full Court, the learned Chief Justice, had deeper reservations. In the last passage of his judgment, he says:-

"	It seems to me that even if the conduct disclosed by the evidence in the Court below was not sufficient on the part of the husband, it was sufficient to give the wife just cause for separating from him. My doubts in this matter have arisen mainly on the question whether it was also sufficient to found her prayer for a divorce on the grounds of constructive desertion. For that, it is necessary not merely to have just cause for separating, but in addition the ill-treatment complained of must be accompanied by expulsive words or must, in itself, amount to expulsive conduct.
	After careful consideration and bearing in mind the advantage the judge had in determining primary facts, I nevertheless have also come to the conclusion that this requirement is satisfied and that the wife is entitled to a decree nisi because the conduct of the husband amounted to constructive desertion."

36. It is clearly not open to me as Deputy Registrar in considering the conduct of the parties for the purpose of this application to draw my own conclusions as to which party (if either) was entitled to succeed on the facts. This has already been done by the Full Court who have dissolved the marriage in favour of the Respondent.

37. On the other hand it is clearly open to me to absorb all the doubts expressed in the judgment of the Chief Justice and Mr. Justice Mills-Owens.

38. A further refinement is introduced by Mr. Justice Mills-Owens' judgment of the 16th of April 1968 when the Petitioner's application for leave to appeal to the Privy Council was refused.

39. Towards the end of the first page of the judgment, he says:-

"If the decree in the husband's favour were to be restored it would be simply on the ground of her desertion, in circumstances which might well have provided 'just cause'. These are matters to which the Court, or the registrar, will have to pay regard in deciding the application for maintenance, having regard to the duty under section 28 to take account of the 'conduct of the parties' in assessing the amount properly payable."

40. In directing my mind to what is reasonable in relation to the 'conduct of the parties' I have particularly considered the following points:-

	(1)	Before their marriage the parties came from similar backgrounds.
	(2)	The parties lived together for only thirteen months during which time the Respondent kept a close association with her own home and her own family. She felt constrained to leave the Petitioner on one previous occasion before the final parting on the 30th of November, 1960.
	(3)	The Full Court have found that the Petitioner was guilty of constructive desertion but this finding was not made without "considerable doubt and hesitation."
	(4)	In so far as cases of constructive desertion which come before these courts go this case can not be described as a bad one of its kind.
	(5)	The parties were young when they married. They were obviously both somewhat immature. The Petitioner was only 25 years old and the Respondent was only 22; the marriage took place on the 29th of October 1959, and they are now approximately only 35 years of age and 32 years old respectively. This is not a case where a man has abused a young wife to his own advantage and then very much later in life discarded her.
	(6)	It is to the wife's credit that no serious allegations have been made by her husband against her other than the allegation of desertion which though it succeeded at first instance failed on appeal, and the facts set out in the Reply and Answer to the cross Petition of the 28th of July 1967 which in themselves cannot be described as serious.
	(7)	There is no suggestion in this case of adultery by the wife either during or after the marriage, and unlike the case of Davis v. Davis(1) and Schlesinger v. Schlesinger(2) there is no question of her asking for the discretion of the court to be exercised in her favour.

41. In addition to considering the conduct of the parties in relation to each other it is now vitally necessary for me to consider their conduct in relation to the style of living they kept up during their marriage.

42. Upon this particular subject Lord Justice Wilmer had this to say in Davis v. Davis⁽¹⁾ at page 126, line I.

"There is no doubt that, in assessing an ordinary claim for maintenance, it is proper to have regard to the standard of living to which the wife was accustomed during the marriage; that appears from the dictum of LORD MERRIVALE, P., in N. v. N.⁽³⁾, which was cited and followed by SACHS, J., in Schlesinger v. Schlesinger⁽²⁾, I see no reason why the same should not apply to a claim made under the Act of 1965 for a lumpsum payment. If the wife has been accustomed during the marriage to live in a luxuriously appointed house, I think that she is entitled to ask for a lump sum payment of such an amount as will provide her with a standard of living commensurate with that to which she has been accustomed. I use the word "commensurate", for it must be obvious that she can hardly expect exactly equivalent accommodation; it would be not "reasonable" to award enough for that.

43. And later in the same case at page 127, line 9, the learned Lord Justice went on to say:-

"Moreover, I think there is force in the contention that the lump sum to be awarded should if possible, be sufficient to leave something over, after establishing a new home, by way of liquid capital which can be used, for instance, for buying a car or for dealing with any emergency which may arise, or even to put by for use on a rainy day."

44. The Petitioner's counsel addressed me at some length upon this vital question of the standard of living enjoyed by the parties before, during, and after the marriage and as this is a matter of considerable importance I will describe what I believe to have been the position.

45. Although both the parties came from families who are more than affluent the standard of living in both homes was, and this is to the great credit of both families, restrained. Both families enjoyed a comfortable existence but certainly no higher than that.

46. All the evidence which is at hand in this case indicates that the lives of the parties and their parents were geared to an engine of a car possessing far less modest proportion than that of a Rolls Royce, and certainly not that of the "Rolls Royce" and standard referred to by Mr. Justice Sachs in the Schlesinger v. Schlesinger⁽¹⁾ case at page ...(illegible)

47. Before marriage the Respondent had lived with her family in Chatham Road, Kowloon. After the marriage the Respondent and the Petitioner lived in the home of the Petitioner's parents at Marigold Road. They lived there for twelve months and it was only for the last month of the marriage that they moved to a flat of their own in Kadoorie Avenue.

48. It is true that whilst they lived at Marigold Road they had occupied a self contained part of a large house but they were substantially living in the Petitioner's parents home.

49. During this time the Petitioner never received in cash a salary of more than $3,000.00 a month and it was on this salary and upon a charge account at the Shamrock Hotel that he and the Respondent lived.

50. There is no evidence to show that the parties lived extravagantly nor is there evidence to show that the Petitioner wished his wife to live in a "grand manner". It is to the credit of the Respondent that there is no evidence to show that there was any attempt on her part so to live.

51. Counsel for the Petitioner has said that the parties lived economically and unostentatiously and it is this standard of living which the Respondent has lost.

52. I have been referred to awards of maintenance made in the following cases:-

Gilbey v. Gilbey(2); Schlesinger v. Schlesinger(1); and Davis v. Davis(3); in addition I have also referred to the case of Hulton v. Hulton(4).

53. All these cases have one common feature and that is they deal with persons of great wealth, but they do not really offer any good guide. Davis v. Davis⁽¹⁾ is probably the most helpful. There can be little doubt that in deciding what sum is reasonable the overriding principle is that each case must turn upon its own peculiar facts not only in relation to the decree obtained but more particularly in relation to the exact form which the maintenance order or orders will take.

54. The Respondent's Counsel submitted to me that I should order the Petitioner to pay a lump sum of $1,000,000.00 and that in addition I should order the Petitioner to secure maintenance to the wife for the period of her life in a sum of $150,000.00 a year or approximately $12,000.00 a month, and that there should be a maintenance order for joint lives in a nominal amount.

55. The Petitioner's Counsel advanced quite different figures. He suggested I should make orders for a lump sum payment of $120,000.00 to $130,000.00 to cover the cost of an apartment and that I should further include in this sum an amount to cover the cost of furnishing and decorating the apartment.

56. The figure should also include the cost of a motor car of average price and further having regard to the style of living from which she was driven the Respondent should also receive maintenance and that in this respect a fair figure would be something in the nature of $3,000.00 to $3,200.00 per month.

57. Having considered all the facts so far mentioned I am of the opinion that the Petitioner should pay the Respondent a lump sum of $250,000.00. This payment should be enough to enable her to purchase a flat in Hong Kong or a small house in England, furnish it, buy a car and have a sum left over for a rainy day.

58. ...(illegible) it should also provide her with a modest sum of money to provide a working capital to enable her own feet the Petitioner's responsibility to provide maintenance for her may be reduced.

59. I would have fixed this sum at a higher figure but apart from the past conduct of the parties which is always at the back of my mind I pay particular regard to the fact that the Respondent is in possession of some fortune of her own and as a single lady it is open to her to purchase the smallest type of apartment or house for herself albeit suitable to her station in life.

60. Underpinned by her own fortune and by this payment of $250,000.00 the need for maintenance in its turn must turn upon what is a reasonable award in relation to the past conduct of the parties.

61. I therefore order that the Petitioner pay or cause to be paid to the Respondent maintenance for herself in the lump sum of $250,000.00 and also as from the date of the decree absolute further maintenance for herself during their joint lives until further order at the rate of $60,000.00 per annum payable monthly, of which two-thirds of this sum is to be secured to the Respondent for her life or until further order on security to be agreed or referred to the Registrar in default of agreement.

62. The Petitioner will pay the Respondent's costs of this application, and I certify that this is a suitable case for a certificate for counsel.

63. The award for ...(illegible) will date ...(illegible) to the ...(illegible)

  

  

	(J.R. Oliver)
	Deputy Registrar
	Supreme Court.
	22nd March, 1969.

  

Representation:

  

  

(1) Davis v. Davis 1967. L.A.E.R. 123.

(1) Tolstoi. The Laws & Practice of Divorce 5th Ed. p.144.

(1) Davis v. Davis 1967. 1. A.E.R. p. 123 and 126 (I)

(2) ...(illegible) v. Schlesinger 1960. I.A.E.R. 721.

(3) N. v. N. 1928. A. E.R. 462.

(2) Gilbey v. Gilbey. 1927. p.197.

(4) Hulton v. Hulton 1916. p.57.