FCMC 5141 / 2010
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MATRIMONIAL CAUSES NO. 5141 OF 2010
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| BETWEEN | | |
| | YYK | Petitioner |
| | and | |
| | TSCJ (now known as TKW) | Respondent |
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| Coram: Deputy District Judge G. Own in Chambers (Not Open to Public) |
| Dates of Hearing: | 22nd, 23rd, 24th October 2013, 15th November 2013, 20th February 2014 and 23rd April 2014 |
| Dates of Closing Submission: 21st May 2014 |
| Date of Submission in Reply: 18th June 2014 |
| Date of Judgment: 29th January 2015 |
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J U D G M E N T
(Ancillary Reliefs)
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Background
1. This is the trial of the Respondent Wife (“Wife”) claim against the Petitioner Husband (“Husband”) for ancillary reliefs.
2. The parties were married on 20th December 1997 in Hong Kong. There is one child born out of the marriage, a boy, who is at the age just over 12 ½ years at the commencement of this trial. These divorce proceedings were commenced by the Husband in April 2010 relying on the fact of “Unreasonable Behaviour”. Decree Nisi was granted on 6th October 2010. On 25th October 2010, His Honour Judge K.W. Wong adjourned the question of custody for trial with 2 days reserved.
3. On 14th September 2010, a Notice of Application for Ancillary Relief was filed by the Wife’s lawyers.
4. On 16th June 2011, a Consent Order was granted by His Honour Judge K.W. Wong whereby custody of the child was granted to the Husband with reasonable access be given to the Wife.
5. At the commencement of trial, the Husband was aged 43 and his reported occupation was ritual attendant/marketing consultant. The Wife was aged 39 and was a housewife.
6. Both parties are legally represented at the time of trial and have agreed that the trial be conducted in English. The Wife arranged her father as witness to testify and also issued a subpoena duces tecum to the Husband’s brother for attending the trial to produce certain documents.
Joint Statement of Issues
7. Parties have set forth and signed a Joint Statement of Issues as follows :-
(a) To ascertain the assets of the Wife which would fall within the matrimonial assets available for distribution. More specifically whether the sum of $600,000 given to her by her father still exists and whether this sum (or the remainder of it) is matrimonial asset.
(b) What has been and is the income of Husband. More specifically, does he still earn $100,000 per month ?
(c) What were the businesses owned fully and partly and operated solely or jointly by Husband at the time of the Petition and what are these now. What are the income derived and the share of net assets therein.
(d) What are the other assets of Husband. More specifically whether his statements and figures in Form E are accurate.
(e) Does Husband have any beneficial interest in Property B and if yes, what proportion.
8. For the sake of completeness, Property B refers to the property at Flat D, 1st Floor, Block xx, XXXX, No.xx Siu Lek Yuen Road, Shatin, New Territories, Hong Kong, which was registered in the sole name of the Husband’s brother. Property B was used by the Husband and the child of the family since around 2007 up until now after the Husband disposed of the former matrimonial home around 2006.
The Wife’s latest Open Proposals
9. The Wife proposed as follows :
“- Periodic Payment : $15,000 per month
- Lump sum : $2,000,000 (may be by instalments)
- (Difference between maintenance pending suit and Periodic Payment of $10,000 per month to be paid to Wife for the past period from 7/2010 to the present.)
-Costs (to be taxed in accordance with Legal Aid
-Regulations to be paid by Husband)
The Husband’s latest Open Proposals
10. The Husband proposed as follows :
“呈請人一方願意以下條件作為此案最終解決方案 :-
(一)呈請人支付答辯人每月港幣柒仟元正 (由每月十日或之前支付);
(二)其支付直至任何一方死亡或答辯人再婚;
(三)日後任何一方可作申請更改;
(四)無任何訟費命令;
(五)答辯人的訟費根據法律援助署規則評定。”
The question of “Illegality”
11. In the afternoon of the first day of trial (that is, 22/10/2013) after the Wife has started her evidence in chief, Mr. Eric C.K. So acting for the Husband suddenly made an oral submission for immediate dismissal of the Wife’s ancillary reliefs claim in its entirety. The basis of such application was that the Wife at paragraph 15 of her 1st Affirmation (at Trial Bundle TB – page 84) deposed that the Husband, apart from other business activities, had also engaged in business like illegal off-course soccer betting and also Mark Six betting. She adopted such affirmation as her evidence in chief.
12. I should say such application came up ‘out of the blue’ of which, on all fairness, advance notice should have been given to the Wife’s Counsel. Considering the draconian nature of the application, the trial was temporarily suspended in order to receive oral submission from Mr. So. It was then adjourned to the following day (that is, 23/10/2013) for further disposal with directions for Mr. So to submit his written formal application and grounds of application. Trial on ancillary reliefs in family cases procedurally differ from trials in criminal cases, especially those in magistrate courts, where from time to time defence counsel may seek a ruling from the court to ‘stay’ the criminal trial without any notice being given to the prosecution.
13. On the following day, Mr. So continued his submission and Counsel Mr. Wong for the Wife had also replied. Leave was granted for Mr. So to file a proper Summons by 11:00 a.m. on the following day, namely, on 24 October 2013.
14. Upon consideration, this Court granted the following Orders in respect of Mr. So’s application and an ex tempore Decision was delivered :-
(a) Petitioner’s Summons for dismissal of the Respondent’s ancillary reliefs claim be dismissed;
(b) Petitioner to pay the Respondent’s costs (apportioned 5 hours);
(c) Basis of costs to be reserved until conclusion of the trial;
(d) Respondent’s own costs to be taxed in accordance with Legal Aid Regulations.
15. Strangely enough, the Husband’s solicitors Mr. Eric C.K. So in his written Final Submission of this ancillary relief trial re-visited the question of illegality. As rightly submitted by the Wife’s Counsel in the written Closing Submission in reply, such question has been decided and thus was res judicata. No appeal was launched by the Husband for the Court’s decision and in now so doing, the Husband or his lawyers are simply attempting a second bite of the cheery, if not an abuse of process.
16. I agree with Counsel Mr. Wong. There will be no consideration of this part of Mr. So’s written Final Submission by this Court.
The Law on Ancillary Relief
17. The jurisdiction of the Court in granting financial relief for a party is governed by section 4 of the Matrimonial Proceedings and Property Ordinance, Cap 192(“MPPO”) which provides:
“4. Financial provision for party to a marriage in cases of divorce, etc.
(1) On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may, subject to the provisions of section 25(1), make any one or more of the following orders, that is to say-
(a)an order that either party to the marriage shall make to the other such periodical payments and for such term as may be specified in the order;
((b)an order that either party to the marriage shall secure to the other to the satisfaction of the court, such periodical payments and for such term as may be so specified;
(c)an order that either party to the marriage shall pay to the other such lump sum or sums as may be so specified.
(2) Without prejudice to the generality of subsection (1)(c), an order under this section that a party to a marriage shall pay a lump sum to the other party-
(a) may be made for the purpose of enabling that other party to meet any liabilities or expenses reasonably incurred by him or her in maintaining himself or herself or any child of the family before making an application for an order under this section;
(b) may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court.“
18. The governing principles in relation to the distribution of the family assets in dissolution of marriage are set out in section 7 of the Matrimonial Proceedings and Property Ordinance, Cap. 192, (“section 7 factors”) which states as follows:
(1)It shall be the duty of the court in deciding whether to exercise its powers under section 4, 6 or 6A in relation to a party to the marriage and, if so, in what manner, to have regard to the conduct of the parties and all the circumstances of the case including the following matters, that is to say-
(a)the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
(b)the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
(c)the standard of living enjoyed by the family before the breakdown of the marriage;
(d)the age of each party to the marriage and the duration of the marriage;
(e)any physical or mental disability of either of the parties to the marriage;
(f)the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;
(g)in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
19. In the leading case of LKW v DD[1] the Court of Final Appeal sets out 4 principles as to how section 7 shall be approached, which are stated as follows:
a. The first is that the implicit objective of a section 7 exercise is to arrive at a distribution of assets which is fair as between the parties[2];
b. The second is that the concept of fairness requires the refutation of any gender or role discrimination[3];
c. The third principle is that, with a view to eliminating insidious discrimination and promoting fairness, judges should check their tentative views on distribution against a “yardstick of equal division” which should be departed from only for good, articulated reasons[4];
d. The fourth principle is that the court should not countenance any attempt to engage in costly and often futile retrospective investigations of the failed marriage which tend to deplete the parties’ (and the courts’) resources and to increase antagonism and discourage settlement[5].
20. The Court of Final Appeal went further to lay down 5 steps as to how the Court should do when exercising section 7 as follows:
a. The first step in the exercise is to ascertain the financial resources of each of the parties calculated as at the date of the hearing[6];
b. The next step is for the court to assess the parties’ financial needs[7];
c. If surplus assets would remain after the parties’ needs have been catered for, the next step in the exercise should generally be for the court to apply the sharing principle to the parties’ total assets, leaving the “needs” question previously considered to be dealt with under that principle[8];
d. The fourth step therefore involves considering whether good reasons exist for departing from the principle of equal division[9];
e. When deciding the outcome, the court is not bound to depart from equality in the division of the parties’ assets even if one or more of the factors considered are engaged on the facts. The weight to be given to such considerations is a matter of discretion for the court[10]
The five (5) Issues
Issue (a) - The sum of $600,000 received by the Wife
21. It is undisputed that the Wife had received a sum of $600,000 from her father around 2007. The Wife’s case is that such sum was placed with her on trust for her father for investment in the stock market. All the moneys were lost by 2008/2009 in the stock market.
22. The Wife’s case on this issue had not been challenged by the Husband’s lawyers. According to the records of hearing, not a single question was put by Mr. Eric C.K. So, who represented the Husband at trial, to the Wife’s father during cross examination to discredit the Wife’s case of the sum of HK$600,000. In Mr. So’s written Closing Submission, there is no submission either as to why no such question was put to the Wife’s father.
23. In the absence of any contradictory evidence or challenge, I find for the Wife that the sum of HK$600,000 was money held on trust for her father and therefore did not fall within the pool of family assets for distribution.
Issue (b) – What has been and is the income of the Husband ?
24. The Husband’s evidence is that prior to 2009 he was engaged in different businesses including trading in electrical goods and piece goods wholesale in Mainland China, also in the business of selling the so-called ‘twisted- eggs’ and some electronic games in Hong Kong. On 1st March 2009, he was employed by a Macanese company by the name Kyle Support & Adm Software Overseas Limited (‘Kyle’) as a ritual attendant/marketing consultant. His role and job duties with Kyle were to arrange hotels, ferry tickets and catering for customers (either from Mainland China or Hong Kong) who were interested to travel to and gamble in Macau. His salary was allegedly $50,000 at the beginning but was reduced to $30,000 around September 2010. The Husband’s case is that since the source of income was earned outside Hong Kong, he was not required to report his salary for tax purposes in Hong Kong and thus could not produce any official proof of income. The only documentary evidence available, insofar as his employment and income is concerned, is a letter issued by Kyle dated 27/9/2010 (at Trial Bundle TB - 1470).
25. Eventually, Kyle closed down in October 2010 and he remained unemployed until 2011 when he returned to the same line of business as Kyle with some of his friends. No company had ever been formed or his business activities been registered up until now. His present level of income allegedly was variable between $20,000 and $30,000 per month. There is also no documentary evidence or tax return to support such alleged income of the Husband.
26. Under cross examination, the Husband stated that he had had no other business since he was employed by Kyle. At one stage he was involved, only on a temporary and short term part time basis, in sales activities for a printing company and a security equipment company but both of which did not yield any income to him.
27. Counsel Mr. Wong for the Wife submitted that the only piece of documentary evidence of Kyle adduced by the Husband cannot be conclusive proof of his income. Reference was then made to the records of the personal bank accounts of the Husband. There are numerous entries of transactions where different sums of moneys were deposited and withdrawn, some of which were of large amount. There were transactions running up to $400,000 and also one transaction of about 1 million of which the Husband, in his evidence, explained that it was a loan to Kyle for payment to the casino in Macau. This incident arose out of a ‘miscount’ of bank notes and he had to seek his brother’s assistance for a loan of $400,000. The Husband deposed that those transactions appeared in his personal bank account were either payments received from or paid to his customers or received from or paid to the casinos. Those were not his income.
28. The Wife in her 4th Affirmation stated that before the separation, she believed the Husband’s monthly income was already not less than $100,000. She deposed that the household expenses in the few years before separation was about $60,000. By that time the Husband was paying her a monthly maintenance of $15,000 and that the Husband himself was spending about $20,000 a month. All these sums, say, $60,000 plus $15,000 and $20,000 added together was close to $100,000. Moreover, the Husband would go to Macau every Thursday for some meetings and would also be receiving a fixed sum of $50,000 as remuneration.
29. According to the documents produced by the Husband, for the years between 2008, 2009 and 2010 a total sum of $817,420 was paid by the Husband either into the Wife’s father’s bank account or the joint name account of the Wife and her father. For the breakdown, a total sum of $125,420 was paid in 2008, another total sum of $329,700 was paid in 2009 and a further total sum of $362,300 was paid in 2010 (see paragraph 16(1) of the Wife’s 4th Affirmation).
30. The Husband also received a sum of $231,900 from his Macau business between 2008 and 2010 (see paragraph 16(2) of the Wife’s 4th Affirmation).
31. Besides, there are other sources of income from his business of sale of twisted-eggs, electronic games and computer products which was revealed by the Husband’s documents or his answers to questionnaires adding up to $1,374,342 between the years 2008 and 2010 (see paragraph 16(3) of the Wife’s 4th Affirmation).
32. The Wife in her 10th Affirmation deposed that her younger brother had once worked for the Husband in Mainland China for a few years. This was confirmed by the Wife’s father’s testimony in Court and in his affirmation filed on 19 March 2012. Such fact was not disputed by the Husband.
33. The Wife in her 10th Affirmation produced as an exhibit marked “TKW-18” which is a list (at Trial Bundle TB - 552) obtained by the Wife’s younger brother from his ICBC Bank account No.6222xxxxx004050xxxx showing the following sums were transferred to a bank account at the Zhu Hai branch of the Agricultural Bank of China (“ABC”) No. 6228xxxxx003725xxxx with the Husband’s sole name as account holder. This ABC bank account had never been disclosed by the Husband.
| Date of transfer | Amount (RMB) |
| 2nd March 2011 | 70000000 |
| 23rd March 2011 | 50000000 |
| 10th May 2011 | 20000000 |
| 10th June 2011 | 7174000 |
| 6th July 2011 | 11000000 |
| 158174000 |
34. Besides, within the same exhibit, there was an outgoing entry of transfer from the Husband’s ABC bank account to the Wife’s younger brother’s ICBC Bank account in the sum of RMB 2000000 on 26th July 2011.
35. The Wife in her 12th Affirmation produced as an exhibit marked “TKW-24” (at Trial Bundle TB – pages 1283 to 1294) documents received from the Zhu Hai branch of the Agricultural Bank of China which consists of details of breakdown of entries for the Husband’s ABC Bank account. Upon checking and comparing the figures in this exhibit with Exhibit marked “TKW-18”, it can be seen that the amount of those transactions which appeared in exhibit “TKW-18” should in fact read as follows :-
| Date of transfer | Amount (RMB) |
| 2nd March 2011 | 700,000.00 (at page 1283) |
| 23rd March 2011 | 500,000.00 (at page 1285) |
| 10th May 2011 | 200,000.00 (at page 1285) |
| 10th June 2011 | 71,740.00 (at page 1286) |
| 6th July 2011 | |
| 1,581,740.00 | 110,000.00 (at page 1286) |
36. Thus, the exact amount transferred by the Wife’s younger brother to the Husband as per the 5 transactions appeared in exhibit “TKW-18” should be RMB 1,581,740 instead of RMB 158,174,000 (that is to say, with the decimals included). Applying an exchange rate of, say, RMB 1 to HK$1.20, this is equivalent to HK$1,898,088.
37. Putting all these together, the Wife believed the Husband has undisclosed bank account where there were substantial sums of monetary transactions which call for full explanation. The Wife deposed that she believed the then monthly income of the Husband between 2009 and 2011 was in the region of $100,000 or above.
38. The Husband in reply said over the years he had been relying upon his personal savings and also the net proceeds of sale of the former matrimonial home in 2006, the proceeds of sale of his securities investment and proceeds of sale of those remaining stock-in-trade of twisted-eggs to make up the monthly shortfall between income and expenses. This can be seen from his Form E filed on 4th October 2010 where his reduced monthly salary income from Kyle of $30,000 was not sufficient to cover his then monthly expenses of $45,724.83 (at Trial Bundle TB – 157 to 180). The Husband maintained his monthly income had never exceeded $50,000 in the past years.
39. In reply to those transactions revealed in the ABC bank account, the Husband in his oral testimony stated he had no idea of having that account. He claimed that he had lost his China Return Permit (回鄉咭) at one time and wondered whether the ABC bank account was opened by someone using his lost China Return Permit (回鄉咭). Although he said he had made a report to the Chinese Authorities about the lost of his China Return Permit (回鄉咭), no proof of such report was produced to this Court. He could say no more than that as to the existence of the ABC Bank account with his name as the account holder.
40. Counsel Mr. Wong for the Wife in his written Closing Submission invited the Court to draw inference of the Husband’s income by considering the Husband’s expenses level and the surrounding circumstances, namely, those numerous transactions adding up to large sum of moneys over the years in and out of the Husband’s personal bank account of which no satisfactory explanation could be provided. Had the Husband been telling the truth, why would those moneys allegedly belonging to Kyle or Kyle’s customers would have gone through the account of Kyle’s employee (namely, the Husband’s) personal bank account and not the company account of Kyle ? There is no reliable evidence, documentary or otherwise, to support the Husband’s explanation except his own bare allegation. Likewise, there is also no evidence to show his level of income since he set up his business activities of ritual attendant (similar to that of Kyle’s business after Kyle closed down) from 2011 until now is between $20,000 and $30,000. Again this is no more than his bare allegation.
41. Upon detailed consideration of the evidence available, I accept those bank transactions adding up to substantial sum of moneys in and out of the Husband’s personal bank account does attract scepticism which warrant full explanation by cogent evidence rather than by bare allegation. The Husband’s ‘explanation’, if I may so call it, is unbelievable and not being accepted.
42. With the benefit of legal advice and assistance, there is no challenge by the Husband as to the contents and authenticity of Exhibits “TKW-18” and “TKW-24” produced by the Wife, namely, the records of money transfer between the Wife’s younger brother and the Husband and the breakdown of entries of transactions of the ABC Bank account. The Husband had not arranged the younger brother of the Wife to give evidence to discredit the Wife’s case against him on Exhibit “TKW-18” and “TKW-24”.
43. Under cross examination in the morning of the last day of trial (that is, 23rd April 2014), the Husband agreed to Exhibit “TKW-24” was obtained by the Wife’s lawyers on the strength of a written authorisation to the ABC Bank signed by him. He deposed that the ABC Bank refused his request to cancel the account and get the money back. The reason given by the ABC Bank was that there was 1 digit difference in the numbers of his China Return Permit (回鄉咭) and the bank records of the same document. He further requested to get back the money in the account but was also refused for the reason that he did not possess the bank card. The Husband then explained to the Court that for replacement of the China Return Permit (回鄉咭), the last digit number would be increased by 1.
44. Question was then put by Counsel Mr. Wong to the Husband as to why he wanted to get the money back since he claimed the account was not his, he had no knowledge how this account came about, no operation of it and the money in there not belonged to him ? The Husband answered that he wanted to get the money back because he did not open the account and want to cancel it !
45. Upon analysis, the Husband’s explanation as to the existence of the ABC Bank account is totally unbelievable and defies all common sense. If the ABC Bank account was opened by somebody who had picked his lost China Return Permit (回鄉咭), as the Husband so alleged or suspected, how would that person be able to sign a specimen signature same as the Husband’s signature in the authorisation letter which authorized the Bank to release the documents as per Exhibit “TKW-24” to the Wife’s lawyers ? There is no specimen signature anywhere in the China Return Permit (回鄉咭) which facilitate that person who had picked the lost China Return Permit (回鄉咭) the chance to try to forge the signature of the holder. Further, the Husband’s evidence that he wanted to get the money back also suggested that the account is, on balance of probabilities, his account. If he was not the account holder and had no idea of such account whatsoever, how could and why would he want to get the money out of the account which belongs to others ?
46. Accordingly, I find as a fact that the name of YYK (in the same Chinese characters as that of the Husband) recorded in Exhibit “TKW-18” is actually the Husband and not any other third party with the same name and family name. I also find whatever moneys standing in credit within the ABC Bank account, in the absence of any contrary evidence, belongs to the Husband.
47. For the above reasons, I find on balance of all probabilities that there are undisclosed monetary entries of bank transactions by the Husband. As rightly submitted by Counsel Mr. Wong, this is a case of material non disclosure of which adverse inference could readily be drawn to the Wife’s favour (see H v. W, K & B (HCMC No.8 of 2008) where Madam Justice Au-Yeung citing the judgment of Lam J (as he then was) at paragraphs 197 to 199 in L v. L (HCMC No.1 of 2003)). The standard of proof required to infer the existence and amount of assets which a spouse declines to reveal to the court should be the balance of probabilities (per paragraph 50 of her Ladyship’s judgment in H v. W, K & B, supra).
48. In the English case of NG v. SG [2012] 1 FLR 1211 where Mostyn J at paragraph 16 of the Judgment sets out a list of factors to be considered in circumstances where the court is satisfied that a party’s disclosure has been materially deficient. The factors are :-
“(a) The court is duty bound to consider by the process of drawing adverse inferences whether funds have been hidden.
(b) But such inferences must be properly drawn and reasonable. It would be wrong to draw inferences that a party has assets which, on an assessment of the evidence, the court is satisfied he has not got.
(c) If the court concludes that funds have been hidden then it should attempt a realistic and reasonable quantification of those funds, even in the broadest terms.
(d) In making its judgment as to quantification the court will first look to direct evidence such as documentation and observations made by the other party.
(e) The court will then look to the scale of business activities and at lifestyle.
(f) Vague evidence of reputation or the opinions or beliefs of third parties is inadmissible in the exercise.
(g) The Al-Khatib v. Masry technique of concluding that the non-discloser must have assets of at least twice what the claimant is seeking should not be used as the sole metric of quantification.
(h) The court must be astute to ensure that a non-discloser should not be able to procure a result from his non-disclosure better than that which would be ordered if the truth were told. If the result is an order that is unfair to the non-discloser it is better than that the court should be drawn into making an order that is unfair to the claimant.”
49. The question which follows next is quantification, namely, what is the present level of income of the Husband and what is the likely amount of hidden funds or assets (see NG v. SG, supra).
50. Taking into account of all the evidence available, I accept the Wife’s case that the Husband’s disclosed income of $20,000 to $30,000 per month at present does not reflect his actual earnings. I do not accept the letter issued by Kyle dated 27/9/2010 (at Trial Bundle TB - 1470) as sufficient proof of his present income. Applying factors (c), (d) and (e) set out in the case of NG v. SG supra, I am entitled to draw adverse inference on the Husband’s present level of income by looking at historical monetary transactions. I find the Husband’s present income by adverse inference remain in the region of $50,000 per month.
51. As regards the likely amount of his assets, I find the moneys as revealed by Exhibit “TKW-18” in the currency of renminbi in credit in the Husband’s ABC Account of RMB 158,174,000 or, say, HK$1,898,088 to be the hidden assets.
Issue (c) – Businesses owned fully and partly by Husband, income derived, share of
net assets etc
52. I accept Counsel’s submission that since the Husband had not fully disclosed his assets, this issue could not be resolved or there being any further grounds upon which inference could be readily drawn upon.
Issue (d) – Any other assets of the Husband; accuracy of his Form E
53. Likewise, I also agree with Counsel Mr. Wong that this issue could not be resolved or there being any further grounds upon which inference, adverse or otherwise, could readily be drawn upon by reason of the Husband’s material non disclosure as found by this Court.
Issue (e) – Does the Husband have any beneficial interest in Property B ?
54. Counsel Mr. Wong fairly conceded that the only evidence of Husband having a beneficial interest in Property B is limited to the evidence of the Wife by way of her oral testimonies and affirmations. This Court is, however, invited to compare the credentials and evidence of the parties.
55. In my decision, the Wife is unable to come up with cogent and sufficient evidence to prove the Husband having a beneficial interest in Property B. The documents produced by the Husband’s brother on this issue do not support the Wife’s case either.
Other Issues
(a) The cash sum of $400,000
56. Apart from the Joint Statement of Issues, it is the Husband’s case that a cash sum of $400,000 was given by him to the Wife on 11th September 2006 out of the net proceeds of sale of the former matrimonial home. According to the records of hearing on the 3rd day of trial (that is, 24 October 2013) between 12:24 pm to 12:29 pm, Mr. So in his cross examination challenged the Wife of not having denied in any of her Affirmations after the Husband had deposed in his 1st Affirmation that he had given her such sum of money. The answer given by the Wife there and then was that it was impossible that the Husband had given her $400,000. She was only aware of this sum of $400,000 from these proceedings. Counsel Mr. Wong also objected the appropriateness of Mr. So’s question on 2 grounds. Firstly, there is the doctrine of implied joinder. Secondly, as a matter of law, silence cannot equate admission.
57. Mr. So further attempted to ask the Wife whether she would agree to having received such sum of $400,000. This question was immediately objected to by Counsel Mr. Wong relying upon the rule of ‘finality of answers’ to questions in cross examination. This objection was accepted by the Court. The Wife was not required to answer this further question. In such circumstances, I do not see how Mr. So could now said the following in his written Final Submission at paragraph 32 :-
“32. There has been no denial that the Respondent had received a sum of HK$400,000 from the Petitioner when the Petitioner sold Property A (please see ‘xxx 第一確認書’ at paragraph 8 on page 203 in Box 1). During cross examination the Petitioner reinstated that he had given such sum to the Respondent and there is no suggestion to the contrary. The question is, therefore, where did this sum of $400,000 go ?”
58. The bank statement entry of withdrawal of $400,000 appeared at page 14 of Exhibit “YYK-2” (at Trial Bundle TB – page 1320) was recorded as ‘CW – Cash Withdrawal $400,000’. Considering the amount being substantial, why would the Husband have to withdraw cash notes and not simply issuing a cheque or bank draft to the Wife if he was minded or decided to give such sum to her ? According to the bank statement, he had a current account at that time. Alternatively, the Husband could instruct the lawyers handling the property conveyance to split $400,000 out of the net proceeds of sale of $787,856.67 to the Wife rather than him withdrawing cash notes from the bank and give to the Wife. It is noted that the net proceeds of sale of matrimonial home is $787,856.67 and in the form of a cheque deposit on 8 September 2006 (which is a Friday). The cash withdrawal of $400,000 was on 11 September 2006 (that is 2 days later, the following Monday) apparently after the cheque of $787,856.67 was cleared. I do not believe that the alleged withdrawal of $400,000 to the Wife was a decision formed over the weekend (that is, between the two days of 8th and 9th September 2006). There is also no evidence of there being any urgency for the Husband to have to withdraw cash notes to the Wife the following Monday soon after the cheque was cleared. There is no evidence or explanation from the Husband either save and except himself alleged having paid the sum of $400,000 to the Wife. Considering all the circumstances and on balance, I do not believe the Husband’s evidence that he had given $400,000 to the Wife. On the contrary, I find the Wife’s evidence credible. Apart from saying it was impossible for the Husband giving her $400,000, she also said if that was the case, the Husband would have transferred the money to her, the Wife then said she did not know why the Husband kept accusing her ! (我邊有可能收到佢40萬現金呀, 佢要俾佢都係過數俾我呀, 我完全都唔知lei個數目, 我都係依家先知道lei 40萬, 係咁冤枉我做咩野, 我都唔明 !)
59. I wish to add that since it is the Husband’s case that he had given $400,000 to the Wife, it is for him to prove by evidence on balance of probabilities the truth of it rather than, as what Mr. Eric C.K. So for the Husband attempted, to rely upon the Wife’s ‘non denial’ or any ‘implied admission’, so to speak.
60. For the reasons above, I find against the Husband. He had not given $400,000 to the Wife out of the net proceeds of sale of the former matrimonial home of $787,856.67. He had kept the entire proceeds of sale to himself.
(b) The missing jewelleries
61. The other contention is that the Wife had, as revealed by her credit card statement with Aeon Credit Service (Asia) Co. Ltd (at Trial Bundle TB – page 72) spent $60,738 in the month of July 2010 for purchase of jewelleries which are luxuries but had not been accounted for in her evidence or their whereabouts disclosed (at Trial Bundle TB – pages 71 to 72). The Husband submitted that the Wife had incurred heavy debts and loans on purchase of other luxuries such as handbags of which debts were all repaid by the Husband. This had caused the Husband have to ‘control’ the Wife’s money spending by making those maintenance to the Wife indirectly through her father.
62. The Husband’s solicitor, Mr. Eric C.K. So, submitted a letter to this Court after the filing of his written Closing Submission to seek indulgence of the Court for replacement of paragraph 29 of his written Closing Submission. This letter was copied to the Wife’s solicitors. The gist of the replacement is to question the Wife how could she afford to buy jewelleries of $60,738 in July 2010 when allegedly she was only having a monthly income of $6,340 ?
63. It is obvious the jewelleries were purchased and paid by way of the credit card of the Wife, namely, with Aeon Credit Service (Asia) Co. Ltd. The Wife explained those spending happened after she had taken medication for her psychiatric illness. Those spending had not been repeated. There was an entry of debt and liabilities at Item 2.13 of the Wife’s Form E owing to the same credit card company a sum of $66,487.02 (as at 16/9/2010). The amount spent and the time of spending in the jewelleries purchase matched with each other. The Husband’s queries had been fully answered.
64. Regarding the whereabouts of the jewelleries purchased in July 2010, it is noted that at Item 2.10 of the Wife’s Form E dated 30 September 2010, there was 1 pair of diamond ear ring worth $30,000 but pawned for $20,000. The Wife’s evidence is that the Husband stopped paying her maintenance since July 2010. She had to borrow money from friends and utilize funds obtained through credit card to maintain a living (see Item 5.1 of her Form E). Accordingly and on balance of probabilities, I find for the Wife that the jewelleries purchased were sold for her living expenses. I noted the difference in amount as to the diamond ear ring and the amount of the jewelleries purchase. Bearing in mind the Wife’s explanation for the purchase was because of medication she took, I am prepared to accept there might possibly be some other jewelleries which the Wife had disposed of but not being able to recall with precision and state in her Form E.
(c) Any maintenance payment to the Wife ?
65. Under cross examination, the Wife disagreed the Husband had paid her maintenance through her father since July 2010. She maintained that before the separation the Husband would pay maintenance of $15,000 per month directly to her.
66. The Wife’s father in his testimony adopted the contents of his Affirmation as evidence in chief. Under cross examination, he denied having any knowledge about the Husband making payments into his bank account between the years 2008 and 2010. He himself had not retrieved any single dollar from the sum of $817,420 deposited by the Husband. Upon recollection, between the years 2008 and 2010 he had, and still has, a bank account with HSBC and a bank card through which withdrawals can be made in Hong Kong or Mainland China. Since the Wife’s younger brother (that is, his younger son) worked for the Husband during those years and would be receiving salary, the younger son had asked for the bank card in order for him to receive his salary from the Husband, whether in Hong Kong or Mainland China. This part of his testimony had not been discredited by Mr. Eric C.K. So through cross examination. Upon Re-examination, he deposed the Husband had not told him before or after the divorce that money had been deposited into his bank account for his use and also for his daughter (that is, the Wife). Such evidence supports the case that the Husband deposited moneys into the Wife’s father was for payment to the Wife’s younger brother. Given careful consideration and assessment of his testimonies, I find him credible and accept his evidence more probable than not to be the truth of the case.
67. On this issue, I find the Husband had not paid maintenance to the Wife through the Wife’s father’s bank account as he so alleged.
(d) Disclosure of HSBC bank account and BOC securities account
68. The next contention of the Husband is that the Wife had not disclosed that she possessed a bank account with HSBC and also a securities account with the Bank of China (“BOC”). There was a credit balance of $132,306.74 as at 8th December 2007 with the HSBC bank account which went unexplained. There was a credit balance of $683 as at 18th April 2008 with the securities account of Bank of China which also went unexplained.
69. The contention of $600,000 held by the Wife had been found to be moneys held on trust for her father for stock investment. Thus, the securities account at Bank of China where those investments for the father were made had not been disclosed would not have any significant ramifications upon the parties’ respective claims against each other. The credit balance of $683 would not fall into the pool of family assets for distribution.
70. As can be seen in the Wife’s bank statement with HSBC which the Husband produced as his Exhibit “YYK-1” (at Trial Bundle TB – page 1302), the credit balance of $132,306.74 was placed under the description of ‘Total Balance in Investment Services’ of an earlier entry of $132,051.90. Accordingly and likewise, such credit balance also would not form part of the pool of family assets for distribution.
The Parties’ Form Es
71. Both parties filed their Form Es back in October 2010. They were given the time and chance to update their latest financial situation and expenses by oral testimonies during trial.
(a)The Wife’s present expenses
72. At paragraph 4 of the Wife’s 4th Affirmation filed on 17/2/2012 (at Trial Bundle TB – page 106), she deposed as follows :
| “在2010年12月離開父親自住後 | 港幣 |
| 每月只能維持糊口生活之支出(直到現時) | |
| 租金 | $ 2,700 |
| 早、午、晚三餐 | $ 1,500 |
| 電視及寬頻 | $ 380 |
| 手提電話費 | $ 300 |
| 藥費 | $ 200 |
| 門診費 | $ 480 |
| 交通費 | $ 200 |
| 電費 | $ 100 |
| 個人儀容開支 | $ 300 |
| 其他 | $ 180 |
| 總共 : $6,340” |
73. During cross examination by Mr. So, the Wife updated paragraph 4 of her 4th Affirmation on the monthly expenses as follows :-
| “ | 港幣 |
| 租金 $ 將增至 | $4,000 |
| 早、午、晚三餐 | $ 3,000 |
| 電視及寬頻 | $ 0 (沒有寬頻) |
| 手提電話費 | $ 300 |
| 藥費 | $ 約 $1,500 |
| 門診費 | $ 180 |
| 交通費 | $ 200 |
| 電費 | $ 500 |
| 個人儀容開支 | $ 500 |
| 其他 | $ 180 |
| 總共 : $10,360” |
74. Further, during cross examination, the Wife was referred to paragraph 6 of her 4th Affirmation on the items there under and testified that the latest figures should be as follows :-
| “比較合理每月生活支出 (以個人計算) | 港幣 |
| 租金 | $ 4,000 |
| 早、午、晚三餐 | $ 3,000 |
| 差餉、水、電、煤 | $ 700 |
| 家中用品支出 | $ 1,000 |
| 交通費 | $ 500 |
| 衣服 | $ 2,000 |
| 醫藥費用 | $ 1,500 |
| 個人支出 | $ 1,000 |
| 個人消遣 | |
| 總共 : $ 14,200” |
75. The Wife is a psychiatric patient and is not able to find or hold a job. She is financially depending upon the maintenance pending suit of $5,000 per month from the Husband and a monthly disability allowance of $1,540 from the Government. However, due to the Legal Aid First Charge, $200 was deducted from the $5,000 maintenance pending suit so she is only receiving $6,340 (that is, $5,000 - $200 + $1,540) a month. The Wife has no other source of income.
76. According to the bank records and statements produced, the Wife has no major financial assets save and except two insurance policies with Manulife (at Item 2.8 of Form E), one of which attached with a policy loan. The net total value as at May 2010 was around $3,580.57.
(b)The Husband’s present position
77. During his evidence in chief, the Husband was referred to his Form E and provided the updates, adopting the item numbers of the Form E, as follows :-
“Item 2.3 : The same bank accounts were there with balances :-
| “HSBC (Savings) No.558-xxxxxx-833 | $ 29,000 (approx) |
Hang Seng Bank (Savings)
No.348-xxxxxx-668 | $ 1,000 (approx) |
| Standard Chartered 320xxxxx238 | $ 10 (approx) |
| Standard Chartered 321xxxxx985 | $ 1,400 (approx) |
Standard Chartered 337xxxxx004
(RMB currency) | cancelled $ |
| $ 31,410 (approx) |
Item 2.8 : The Insurance Policy still there but unable to provide a value.
Item 2.13 : The amount of indebtedness has been reduced to about
$400,000.
Item 3.1 : The present average income is $30,000 a month, may be
slightly more but unstable.
Item 4.1 : General Expenses
Utilities (electricity, gas, rates,
telephone & water) | $ 600 |
| Food | $ 5,000 |
| Insurance premia | $ 1,800 |
| $ 7,400 |
Item 4.2 : Personal Expenses
| Meals out of home | $ 1,500 |
| Transport | $ 1,800 |
| Clothing/Shoes | $ 200 |
| Personal Grooming | $ 100 |
| Entertainment/presents | $ 300 |
| $ 3,900 |
Item 4.3 : Children’s Expenses
| School Fees | $ 6,440 |
| Extra Tuition Fees | $ 6,800 |
| School books and stationery | $ 130 |
| Transport to school (including school bus) | $ 1,000 |
| Extra Curricular Activities | $ 50 |
| $14,420” |
78. The total amount of Husband’s monthly expenses is about $25,720 per month (including the child’s expenses).
Identification of Assets
79. Counsel Mr. Wong for the Wife invited this Court to view the case in a broad brush approach.
80. Given the fact that the progress of this case at the pre-trial stage has been prolonged by the discovery process, the 6-day trial proper stretched over a year and the Court’s finding of hidden assets of the Husband in respect of which the quantity and exact amount could only be determined by adverse inference, I am prepared to consider Mr. Wong’s submission whilst applying the established principles laid down in the leading case of LKW v. DD (supra) and considering the section 7 factors. I have reminded myself that in any event the ultimate aim is to achieve fairness to the parties.
81. As found by this Court, the Husband’s undisclosed assets are $1,898,088 (see paragraph 51 above). The disclosed assets at trial added up to $31,410 (see paragraph 77 above). In addition, there are the net proceeds of sale of the former matrimonial home which the Husband confirmed at paragraph 7 of his 1st Affirmation (at page 14 of Exhibit “YYK-2” at Trial Bundle TB – page 1320) was $787,856.67.
82. The alleged indebtedness of $400,000 by the Husband to his elder brother was not supported by evidence both as to the existence and the cause of it. This amount would not be considered in the computation process.
83. The Husband also possessed one insurance policy of which no updated value was produced at trial. The Wife’s two insurance policies were valued at $3,580.57 in her Form E back in May 2010 (one of which attached with a loan) of which also no updated value was produced at trial. In the absence of documentary evidence, I decided not to put into the computation process the values of both parties’ respective insurance policies.
84. The Wife has no assets and was so found by the Court. The Wife’s indebtedness to Aeon Credit Service (Asia) Co. Ltd. would be excluded from the computation process for two reasons. First, such indebtedness was accepted and found by the Court to have arisen from purchase of jewelleries of which the Wife had utilised for her living expenses due to lack of maintenance from the Husband. To take into account such liabilities when computing the total pool of matrimonial assets may pose unfairness to the Husband since the lack of maintenance would have to be considered under those section 7 factors, such as ‘conduct of the parties’, ‘responsibilities’ or ‘contributions’ etc. Secondly, there is also no updated documentary evidence as to the latest amount of this indebtedness at trial.
85. The total capital assets (both disclosed and undisclosed) of the Husband is therefore $2,717,354.67 (that is $1,898,088 + $31,410 + $787,856.67) or, say, round up to $2,718,000 for easy calculation.
86. In my decision, this is also the total amount of family assets since the Wife has no capital assets.
Assessing the parties’ financial needs
87. The next step is for the Court to assess the parties’ financial needs.
Income, earning capacity, property and other financial resources
88. As found by this Court, the Husband’s present level of income remain in the region of $50,000 a month (see paragraph 50 above). On all the evidence considered objectively, the Husband is believed and so found by the Court to possess high earning capacity. Over the years he has been able to handle and manage business activities of unrelated nature both inshore and offshore, namely, Hong Kong and Macau. He has been the sole bread winner since marriage. There are no debts incurred notwithstanding that he claimed not being able to make ends meet each month without recourse to his savings. His alleged indebtedness of $400,000 to his elder brother had not been accepted by this Court.
89. Again as found by this Court, the Husband possessed capital assets which he had not fully disclosed. Taking into consideration the amount and frequency of monetary transactions and turnover in his bank accounts and his ‘explanation’, it is probable that the amount of assets so found and determined by adverse inference might be just ‘the tip of an iceberg’.
90. The Wife has no earning income. She has been a housewife and depended entirely on the Husband financially. At present, she has no earning capacity and living upon the Husband’s maintenance pending suit of $5,000 per month (undertook by the Husband and embodied in an Order of this Court in October 2010). She is also receiving a disability allowance of $1,540 each month.
Financial needs, obligations and responsibilities etc
91. The child of the family whose custody, care and control rests with the Husband. It is agreed that the child is suffering from Attention Deficit Hyperactivity Disorder (過度活躍症) (“ADHD”). At present, the child is at the age of 15. No evidence was adduced by the Husband as to any extra financial needs of the child for the ADHD except those usual monthly expenditure items in the Form E. The Husband has no physical or health problems requiring extra financial needs.
92. On the other hand, the financial needs of the Wife are wanting, both in terms of her mental health treatment and usual monthly expenditures.
93. In the medical report by Dr. Benjamin Lai (specialist in psychiatry) dated 6 October 2010 (at Trial Bundle – page 1776), the Wife was diagnosed suffering from depressive illness associated with anxiety, obsessional symptoms, and suicidal behaviour and require medical treatment. She was also found to be under stress of relationship problem with her Husband. In another Psychiatric Report by Dr. Lee Hou Tao, Louis, of Department of Psychiatry, NTEC dated 16 November 2010 (at Trial Bundle TB – page 1779), it was recommended that she should continue with her psychiatric follow-up. In a further medical report by Dr. K.L. Wong of Castle Peak Hospital dated 30 December 2011, she was also diagnosed to have Bipolar Affective Disorder. Her condition had been fluctuating and was given mood-stabilizing agent, antipsychotic, anxiolytic and hypnotics. Further follow up session was also arranged for her.
94. In the latest medical report by Dr. Greg Mak of Castle Peak Hospital dated 12 July 2013, of which I recite the following important passages :-
“She has been suffering from sleeping difficulties and mood disorder since 2004, which was precipitated by the chronic marital discord since then. She used to follow up in private psychiatrist on medications. In August 2009, she had overdosed herself by consuming softener after a heated quarrel with her husband who did not let her to take care of her son. She has been admitted to the psychiatric unit in Shatin Hospital for 3 days. She then continued her follow-up in private after discharge. In early 2010, she drove a car to the hillside and she was then admitted to the United Christian Hospital. Since then she was followed up at the psychiatric clinic in the Prince of Wales Hospital and was later transferred to Castle Peak Hospital for further care due to geographic reason. She was diagnosed to have Bipolar Affective Disorder type II and Borderline Personality Disorder. She was given medications including mood stabilizers and hypnotics. Psychological treatment was also provided.
Her mental condition was largely settled in the past 2 years as she had good response to the drug regime. Yet there were still episode unstable emotions but they had identifiable precipitating factors e.g. provocation from her ex-husband who refused her seeing her sonand refused to pay her alimony (my emphasis). She felt very disturbed in mood whenever she had to deal with these two issues with her husband……….”
95. It is thus plain and obvious that there are financial needs of the Wife both immediate and in the foreseeable future which the Court has to consider when deciding her financial claims.
Standard of living before breakdown of marriage
96. As deposed by the Wife of which the Husband took no issue, the parties lived in a private residential flat in Shatin of an area around 700 sq. ft with clubhouse facilities. There was the service of a foreign domestic helper. There were 2 trips of travelling to South East Asia countries each year. The standard of living is moderately good and above average.
Age of each party and duration of marriage
97. At present, the Husband is aged 45 (born in 1970). The Wife is aged 41 (born in 1974). As at the date of the Decree Nisi in October 2010, the marriage had lasted for about 13 years. This can be said to be within the spectrum of long marriage.
Physical or Mental disability of either of the parties
98. As said, only the Wife has mental disability. The Husband is both physically and mentally sound.
Contribution made by each parties to the welfare of the family
99. After marriage, the Wife has been a full time housewife and mother looking after the child of the family. The Husband was the sole bread winner.
100. In my decision, the contribution of the parties to the welfare of the family was about the same.
Compensation
101. The parties have no dispute on this factor.
Applying the sharing principle
102. The pool of family assets as found by this Court are readily sufficient to go beyond to meet both parties’ financial needs. Generally, the Court will decide that the sharing principle applies to the total assets, so that they should be divided equally between the parties unless there are good reasons for departing from the principle of equal division (see LKW v. DD, supra).
103. In my decision, the principle of equal division will also be applied to this case subject to departure as hereinafter stated.
Consideration of any good reasons for departing from equal division
104. The proper question to be asked is whether there are good and articulated reasons for departing from the ‘yardstick of equal division’ (see LKW v. DD, supra) ?
105. On the facts of this case, I am inclined to provide a 10% departure from equal division in favour of the Wife. The reasons for such departure are as follows :-
(a)there are material non disclosure by the Husband of his assets of which adverse inference had to be drawn, both in terms of his capital assets and monthly income; and
(b)the Wife, having no income or earning capacity since breakdown of the marriage and throughout these proceedings, had not been adequately maintained by the Husband. The maintenance pending suit of $5,000 a month (1st payment on 1/11/2010 as per the Husband’s Undertaking embodied in the Order dated 25/10/2010) is insufficient to cover her basic needs and expenses. Thus, the Wife has been actually suffering a financial loss since 1/11/2010 for over 4 years.
106. I wish to add that the Court has already taken into full account and consideration of the Husband having to take care of and financially support the child of the family solely who is suffering from ADHD when arriving at such percentage of departure from equal division.
Deciding the Outcome
107. Considering all the factual circumstances and the evidence, I find this is not a suitable case for a ‘clean break’ for the parties when deciding the Wife’s ancillary relief claims. In my decision, justice and fairness dictate a lump sum award and a periodical payment order to be granted for the Wife’s ancillary relief claims.
108. Applying the 60:40 ratio upon the total amount of family assets found by this Court, the Wife’s share of 60% is $1,627,200 (that is, $2,712,000 x 60%) which will be the lump sum award.
109. Since the entirety of the family assets found by this Court is in the possession of the Husband, the lump sum award of $1,627,200 will have to be paid to the Wife (subject to Legal Aid First Charge) by the Husband. Such payment to be made within 14 days from the date of the decree nisi granted on 6 October 2010 being made absolute. It has been noted by the Court that the Wife in her Open Proposals had accepted lump sum to be payable by instalments. However, in my decision, any lump sum by instalments order would have to be decided upon application by the Husband, if any in due course. There is no basis of making any lump sum by instalments order.
110. Since the Wife is the Respondent against whom the decree nisi was granted, I direct the Wife’s solicitors to file the appropriate application under Rule 65 (4) of the Matrimonial Causes Rules, Cap.179A, for the decree nisi to be made absolute.
111. For periodical payments, the Husband’s present income as found by the Court in the region of $50,000 a month. The total expenses for the Husband and the child add up to around $25,720 a month (see paragraph 78 above). There is a surplus of, say, around $24,280 a month (that is, $50,000 - $25,720).
112. The Wife’s present expenses are around $14,200 per month (see paragraph 74 above).
113. This Court accepts the amount of monthly expenses claimed by the parties. For easy calculation, the Husband’s monthly expenses would be rounded up to $26,000 and that of the Wife’s would be rounded up to $15,000.
114. In view of the fact that there would be a surplus from the Husband’s income of around $24,000 a month, I also order that there be monthly periodical payments of $15,000 (subject to Legal Aid First Charge) by the Husband to the Wife commencing 1 February 2015 until re-marriage of the Wife or the joint lives of the parties, whichever is the shorter. Having made such payment, the Husband would still be left with a surplus of around $9,000 a month.
115. I have considered the Wife’s Open Proposals of the periodical payments to take into account the maintenance pending suit and whatever amount of difference to be back dated to July 2010 (that is, over 4 years ago). I do not consider such mode of calculation is fair since the monthly expenses at present may differ from 4 years ago. I believed the departure of 10% from equal sharing would have sufficiently compensated for whatever deficit the Wife is entitled to in terms of her periodical payments since July 2010.
Maintenance for the Child of the family
116. In light of the financial situation and health condition of the Wife, the Husband would have to continue solely maintaining the child of the family. In any event, there is no cross application by the Husband for contribution to the child’s maintenance although any such application at this stage would be futile.
Costs
117. Taking into account the outcome of this case and the latest Open Proposals of the Husband, the normal rule as to costs should apply. Thus I order the Husband to pay all the costs of the Wife’s ancillary relief claims, including all costs reserved, to be taxed if not agreed on party and party basis.
118. I also order the basis of the costs order dated 23 October 2013 to be on party and party basis, to be taxed if not agreed.
119. I also grant Certificate for Counsel for the ancillary reliefs trial and for the Costs Order dated 23 October 2013.
Orders
120. I now make the following orders and directions on the Wife’s ancillary reliefs claim :
(1)Subject to the First Charge of the Director of Legal Aid, the Husband (Petitioner) do pay to the Wife (Respondent) the following ancillary reliefs : -
(a) Lump sum of $1,627,200 within 14 days from the date of the decree nisi being made absolute; and
(b)Periodical Payments at the rate of $15,000 per month commencing 1st February 2015 and thereafter on or before the 1st day of each and every succeeding month until the re-marriage of the Wife (Respondent) or joint lives of the parties, whichever is the shorter.
(2)The Wife’s (Respondent’s) solicitors do issue a Summons under Rule 65 (4) of the Matrimonial Causes Rules, Cap.179A within 14 days from the date of this Decision ;
(3)The Husband (Petitioner) do pay all the costs of the Wife (Respondent) ancillary reliefs claim including all costs reserved, to be taxed on party and party basis, if not agreed;
(4)The basis of costs as per the Costs Order dated 23 October 2013 to be on party and party basis, to be taxed if not agreed;
(5)There be Certificate for Counsel for the ancillary reliefs trial
and the Costs Order dated 23 October 2013;
(6)The Respondent’s own costs be taxed in accordance with Legal Aid Regulations;
(7)There be liberty to apply for implementation of this Order.
121. This costs order nisi will become absolute unless any party apply to vary the same within 14 days from the date of this Judgment.
Section 18 declaration
122. I also grant a declaration under Section 18(1)(b)(i) of the Matrimonial Proceedings and Property Ordinance, Cap.192.
123. Last but not least, I wish to express my gratitude to both parties’ legal representatives for their assistance in this case.
| (George Own) |
| Deputy District Judge |
Mr Eric C.K. So of Messrs. Ivan Tang & Co., Solicitors for the Petitioner
Mr Timothy Y.H. Wong instructed by Messrs. Liu, Choi & Chan on the
instructions of the Director of Legal Aid, Solicitors for the Respondent