G S also known as S, G v. SM formerly known as K, M

FCMC 11746/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 11746 OF 2016

________________________

________________________

________________________

JUDGMENT
(Maintenance Pending Suit)

________________________

Introduction

1.  This is an application by a Respondent wife for maintenance pending suit in the sum of HK$3,000 per month. In her summons dated the 25 November 2016 she originally sought a total sum of HK$14,000 per month. However, at the hearing of the 10 March 2017 it was agreed that the husband would pay the wife interim maintenance for the child of the family in the sum of HK$4,500 per month. In addition, he undertook to pay for half of the mortgage on the former matrimonial home in the additional sum of HK$4,517 per month. The issue of the wife’s maintenance pending suit was adjourned to the 26 April 2017. I set out what happened next in my Ruling on Recusal dated the 13 October 2017 as follows:  

4. … Up until that point both parties had been represented by solicitors. Unfortunately, however immediately prior to the hearing the wife’s legal aid certificate was discharged and she subsequently represented herself. The wife was very upset at the hearing and it seemed that the main issue was that she needed domestic help in order to be able to go out to work. As things stood she had no one available to look after the child. Consequently, a compromise was eventually reached. The husband undertook with immediate effect that he would pick the child up from the school bus stop at the end of each school day and that he would then look after the child until the wife returned from work or was otherwise available. On that basis the maintenance pending suit summons was adjourned sine die with liberty to restore, the idea being that the wife would be able to return to work and support herself.

5. Unfortunately, it seems that this negotiated solution was not acted upon. Ms. Manek maintains that immediately after the hearing the wife made another proposal which was not accepted by the husband, with respect to final settlement. At subsequent hearings the wife appeared agitated and wished to have the issue of the original maintenance looked at again, whilst not seeking to have the application formally restored. She subsequently issued the summons for recusal referred to above.

2.  At the First Appointment hearing on the 27 October 2017 the wife confirmed that she wished to restore the hearing on maintenance pending suit.  The only remaining point in dispute was the amount to be paid to herself on an interim basis. She did not wish to disturb the interim order for maintenance for the daughter or the husband’s undertaking with respect to the mortgage repayments.   

Background

3.  I also set out the background to this case in my Recusal Ruling which is repeated here as follows:

3.   This is a case concerning two ethnic Indians. The Petitioner husband was born and grew up in India and came to Hong Kong in order to marry the Respondent wife. The wife was born and raised in Hong Kong. According to the papers the parties met in 2006 and married later that year. They have one child, a daughter, who was born on the XX October 2010 and is now almost 7 years old. It seems that unhappy differences arose between the couple and on the 13 September 2016 the husband issued proceedings based on the wife’s unreasonable behavior. The decree nisi was granted on the 27 April 2017. The parties were also able to come to terms with respect to their daughter and on the 10 March 2017 an order was made by consent that the parties have joint custody of the child with care and control to the wife and defined access to the husband.

4.  I would add that the Recusal hearing was heard on the 9 October 2017 and the mother’s application was dismissed on the 13 October 2017.

The issue

5.  There is then only one issue to be currently determined namely how much maintenance, if anything at all, should be paid to the wife by the husband on an interim basis?

The law

Maintenance pending suit and interim maintenance

6.  The law is well known and not in dispute. Section 3 Matrimonial Proceedings and Property Ordinance Cap 192 states that the only governing principle is that the court shall make such order as it considers reasonable in all of the circumstances of the case. Consequently, applications such as these are approached on a broad-brush basis. A detailed examination of the parties’ means may be examined at a later date at a full ancillary relief hearing if there is no agreement in the meantime, when there is then every opportunity to achieve fairness by means of a set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing. As Rayden points out

…what really matters is the immediate and reasonable requirements of the wife balanced against the ability of the husband to pay for them, assessed using a broad-brush approach. (See paragraph 16.17 of Rayden, 18^th edition).

7.  Further

In practice, as oral evidence is rarely given, it will be unusual for the court on an application for maintenance pending suit to be in a position to make findings of fact on issues in dispute sufficient, for example, to deal with conduct or allegations of non disclosure.  However, if it is demonstrated that the paying party has not performed his duty to make full and frank disclosure of his financial resources, then the court can take a broad and robust view of his means, and it does not have to accept and proceed on the basis of the assertions of the paying party as to his means and an inability to pay.  The court can look at the reality of the situation …… Any under provision or over provision in the order for maintenance pending suit can always be corrected when the account comes to be taken at the substantive hearing when there are every opportunity to do fairness by set off ……” (See paragraphs 16.18 of Rayden, 18^th edition).

8.  Likewise the court may look to the assertions made by the payee and take a similar approach when looking at her means and alleged reasonable requirements.  The court should look to the reality of the situation, in so far as it can, in relation to bare assertions made by either the husband or the wife.

9.  Ms Manek for the husband also referred me in particular to the Court of Appeal decision in HJFG v KCY [2012] 1 HKLRD 95 where it was held that:

“(a) The sole criterion to be applied in determining the application is ‘reasonableness’, which is synonymous with ‘fairness’.

(b) A very important factor in determining fairness is the marital standard of living. That is not to say that the exercise is merely to replicate that standard.

(c) In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long-term expenditure, more aptly to be considered on a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration.

(d) Where the affidavit or Form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources.  In such a situation the court should err in favour of the payee.”

Discussion

The husband’s ability to pay     

10.  It is the husband’s case that he simply cannot afford to pay more than he is paying at present.  He says that he is currently earning in the region of HK$17,150 per month, which includes his full time job plus another part time job. He points out that he does not speak Cantonese and that his earning potential is somewhat limited as a result. He also complains of some health issues namely varicose veins, which makes standing for extended periods difficult. He says that he is struggling to make ends meet and that he has had to borrow from friends in order to keep up with the current payments. He says that he only has HK$2,141 per month for his own living expenses once the maintenance and mortgage and other essential outgoings are paid.

11.  The difficulty with the husband’s case is that he did have a more lucrative part time job at the beginning of these proceedings namely as a bouncer in a club. He is also reasonably young at only 33 years of age. Thus it seems reasonable to conclude that he should be able to earn a little more than he is currently earning.

The wife’s earning capacity    

12.  There is similarly a lot of disagreement surrounding the wife’s earning capacity. There is no dispute that she has worked throughout the marriage and that her previous job came to an end on the 31 December 2016. It is the husband’s case that this was contrived – something that is vehemently denied by the wife. In any event the wife has not worked since. It is though reasonably clear that she will need to work going forward. It is the husband’s case that the wife’s earning capacity is greater than his whereas the wife argues that she needs more financial support from the husband, in order to employ a domestic helper and that without this she cannot work. Ms Manek points out that in any event the wife should be able to work part time during the daughter’s school hours. The husband is also of the view that the wife has been working in the interim period although there does not appear to be any hard evidence to support that proposition.

13.  As with the husband it is also clear that the wife has some debt and that she is struggling to make ends meet. At one point during the hearing the wife even suggested that the daughter live with the husband and that the current difficulty might be resolved in that way.

14.  In summary then I accept that this is one of those very difficult cases where there is simply not enough money to go around and where there is no alternative but for each side to maximize their earning capacity. The wife says that during the marriage the husband used to give her HK$23,000 per month and that in addition she had her own income to rely on. Although that may have been the case then, it is clear that the husband would not be able to pay such a high sum now and that he has his own outgoings to pay, including rent etc.

15.  I have looked at both parties’ outgoings and neither seem to be particularly excessive – but together they are significantly more than the husband currently earns. I certainly accept that even if the husband was able to increase his income a little that he is unlikely to be able to afford an additional HK$3,000 per month. Similarly, I accept that infact the wife requires a lot more than HK$3,000 per month in addition to the maintenance for the child and the contribution towards the mortgage repayment. It seems to me that there is no alternative but for her to return to work and as quickly as possible. Other solutions may need to be explored for child care and she may need to make enquiries of the Social Welfare Department and other NGO’s in that respect.

Conclusion

16.  In such circumstance I shall order that the husband pay an additional sum of HK$750 per month as maintenance pending suit for the wife, with effect from the 1 December 2017. I will not backdate this sum. In so far as costs are concerned given that this is a finely balanced application and that each side had an arguable case, I shall exercise my discretion and make an order nisi to be made absolute in 14 day’s time that there be no order as to costs. The husband’s own costs to be taxed in accordance with Legal Aid Regulations.

FCMC 11746 / 2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11746 OF 2016

________________________

________________________

________________________

R U L I N G
(Recusal)

________________________

Introduction

1.  This is the hearing of a summons issued by a Respondent wife dated the 21 July 2017 in the following terms:

Apply for change of the Judge of Court 4.

2.  In other words, she asks that I recuse myself from the case.  

Background

3.  This is a case concerning two ethnic Indians. The Petitioner husband was born and grew up in India and came to Hong Kong in order to marry the Respondent wife. The wife was born and raised in Hong Kong. According to the papers the parties met in 2006 and married later that year. They have one child, a daughter, who was born on the XX October 2010 and is now almost 7 years old. It seems that unhappy differences arose between the couple and on the 13 September 2016 the husband issued proceedings based on the wife’s unreasonable behavior. The decree nisi was granted on the 27 April 2017. The parties were also able to come to terms with respect to their daughter and on the 10 March 2017 an order was made by consent that the parties have joint custody of the child with care and control to the wife and defined access to the husband.

4.  The real issue here though concerns the wife’s application for maintenance pending suit/interim maintenance. The wife issued a summons on the 25 November 2016 and the normal directions were given for the service and filing of affirmations etc. In the court order dated the 10 March 2017 the husband also undertook to continue to pay for half of the mortgage on the former matrimonial home and to also pay interim interim maintenance for the daughter in the sum of HK$4,500 per month. The matter was then set down for hearing on the 26 April 2017 with half day reserved. Up until that point both parties had been represented by solicitors. Unfortunately, however, immediately prior to the hearing the wife’s legal aid certificate was discharged and she subsequently represented herself. The wife was very upset at the hearing and it seemed that the main issue was that she needed domestic help in order to be able to go out to work. As things stood she had no one available to look after the child. Consequently, a compromise was eventually reached. The husband undertook with immediate effect that he would pick the child up from the school bus stop at the end of each school day and that he would then look after the child until the wife returned from work or was otherwise available. On that basis the maintenance pending suit summons was adjourned sine die with liberty to restore, the idea being that the wife would be able to return to work and support herself.

5.  Unfortunately, it seems that this negotiated solution was not acted upon. Ms. Manek maintains that immediately after the hearing the wife made another proposal which was not accepted by the husband, with respect to final settlement. At subsequent hearings the wife appeared agitated and wished to have the issue of the original maintenance looked at again, whilst not seeking to have the application formally restored. She subsequently issued the summons for recusal referred to above.   

Recusal

6.  Halsbury sets out a useful summary of the law on recusal at para 90.1056 as follows:   

[90.1056] Duty of trial judge to recuse himself in appropriate circumstances It is important that the trial judge is, and is seen to be, impartial as between the parties and the trial judge should not continue to act where such is not the case. The test applied for many years by the English and Hong Kong courts was whether there was a real danger of bias on the part of the judge.

However, more recently, following the lead of the High Court of Australia, the House of Lords decided that the appropriate test for determining the existence of bias (so as to require the judge to recuse himself) should be whether a fair-minded and informed observer would consider that there was a possibility of bias on his part.  This test of the ‘fair minded and informed observer’ has now been accepted in Hong Kong and applied on several occasions.

There are other circumstances, falling outside the arena of bias, where the trial judge should recuse himself i.e. stand down so that the trial is conducted by another judge.  Such a situation might arise, for example, if the trial judge has become aware of privileged evidence.

7.  There have been a number of cases on point in Hong Kong including the Court of Final Appeal’s decision in Deacon v White & Case Ltd Liability Partnership [2004] 1 HKLRD 291, which was later followed by the Court of Appeal decision in Chau Siu Woon v Cheung Shek Kong. In addition, Ms. Manek referred the court to another recent High Court decision where these issues were again canvassed namely Komal Patel and Others v Chris Au and others [2016] 1 HKLRD 328.   

8.  Consequently, it is accepted that the more usual test is not whether I am actually biased against the wife but whether a fair-minded and informed observer might come to the conclusion that there was a possibility of apparent bias going forward, given the facts set out above. In Chau Siu Woon this was reiterated as follows:

12. The relevant test for apparent bias has been reviewed by the Court of Final Appeal in Deacons v. White & Case Ltd Liability Partnership & Others (2003) 6 HKCFAR 322 which took into account the development of the English law in this area in cases such as Director General of ‘Fair Trading’ v. Proprietary Association of Great Britain [2001] 1 WLR 700 and Porter v. Magill [2001] UKHL 67.  The test can be stated as follows: The Court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was biased.  It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.

Fair-minded observer

13.  Further as observed by the House of Lords in Helow v Secretary of State for the Home Department and another [2008] 1 WLR 2416, per Lord Hope of Craighead at 2418.

‘2 The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488,509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The “real possibility” test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.”

9.  Ms Manek also distilled the reasoning in the Komal Patel case as follows:  

(C)   In KOMAL PATEL AND OTHERS v. CHRIS AU AND OTHERS; Reported in: [2016] 1 HKLRD 328, HCA 183/2014, dated 10^th November 2015 His Lordship Mr Justice Kevin Zervos reiterated above principles and said:

“9. The reasonable apprehension of bias test underwent some adjustment upon concern that the “reasonable likelihood” and “real danger” tests in R v Gough [1993] AC 646 which tended to emphasize the court’s view of the facts and to place inadequate emphasis on the public perception of the irregular incident. Lord Hope of Craighead in Porter v Magill [2002] 2 AC 357 articulated the test in the following way which emphasises the need to consider the relevant established facts. He said at 494H:

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

10. Kwan JA in Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd [2014] 3 HKLRD 375, at paragraph 51, articulated the test in terms of “…whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge had not brought or will not bring an impartial mind to bear on the adjudication of the case, that is, a mind open to persuasion by the evidence and the submissions of counsel…”.

His Lordship further commented as follows:

“16. It is incumbent upon judicial officers to be true to their oath of office to decide cases without fear, favour or self-interest or deceit.[8] To this end, judicial officers are required to discharge their professional duties unless disqualified by law.

17. Fairness dictates that a court should be actively involved in the management or control of proceedings in order to secure the just resolution of a dispute in accordance with the substantive rights of the parties.[9]To this end, a court is required to make decisions or give directions that may impact on the issues of the case and on the rights of the parties before the case is finally resolved but this will be done on the evidence and arguments then presented and will invariably involve the court making tentative or preliminary comments or findings about the case. However, this is understood to be necessary for the good management and just disposal of the proceedings and subject to final determination of the case when all the evidence and arguments have been presented. If this did not take place, the wheels of justice would come to a grinding halt.

With respect I agree.

Discussion

10.  In this instance the wife set out the reasons for seeking a recusal in her affirmation in support also dated the 21 July 2017 as follows:

①   She keep refusing & postponing my MPS.

②   I dispute for her orders, she just refuse & ignore she do rectify for her & petitioner lawyer makes on mind, she mainly focus and agree to Petitioner’s lawyer.  She mentioned to my Chinese lawyer she’s not interested.

③   I use to have a lawyer she asked my lawyer that my MPS she’s not interested.

④   Today its 2^nd court date not having lawyer my legal cert got discharged & today she said she can’t do anything on my MPS need to submit again.

⑤   I’m jobless no helper, she’s focusing on property valuation & not procedure 1 (mps) at all!!

We are not native speaker, she use her power to push   me & listen & she leave me w/o choice except agreeing her unfairness

⑥   I know she’s Melloy her name is everywhere for foreigner but I am not seeing that she’s working out anything for me & my child.

⑦   Unreasonable Judge.

Ms Manek for her part has subdivided these complaints into four parts namely a) Refusing and postponing the maintenance pending suit hearing, b) Allegations of favouritism/bias, c) Allegation of requirement to submit Maintenance Pending Suit again and d) Allegation “Unreasonable Judge”. Under each of these subheadings the question is whether a fair-minded and informed observer might come to the conclusion that there was a possibility of apparent bias going forward.

Refusing and postponing the maintenance pending suit hearing

11.  I have not as a matter of fact refused or postponed the maintenance pending suit hearing other than adjourning the summons sine die with liberty to restore on the 26 April 2017. As has been explained to the wife on a number of occasions it is open to her to seek to restore this hearing and for there to be a further substantive hearing on the matter. To date she has not chosen to do this. During this hearing the wife said that she wished me to advise her as to whether or not she should restore the hearing or alternatively seek to stay the proceedings for one year. I explained that I could not advise her. She said that she wished to consider the matter of whether or not to restore the maintenance pending suit hearing further. Thus the issue of restoring the hearing presently remains in abeyance at the request of the wife. I accept, however, that the wife did attempt to bring up this matter on a more informal basis at the First Appointment hearing on the 21 July 2017. This was not appropriate and some of the difficulty may have been that the wife is not familiar with legal processes. In any event I accept, as suggested by Ms Manek that this allegation is misconceived. It is of note that an interim interim order has been in place throughout.

Allegation of favouritism/Bias   

12.  The court has not handed down any judgments or Rulings prior to this one. The allegation of favouritism/bias seems solely to rest on the fact that the court encouraged the parties to reach a practical solution to the issue surrounding child care. Again it seems to me that there is no substance to this allegation.

Allegation of requirement to submit Maintenance Pending Suit again

13.  This allegation makes little sense save in the context of a restored hearing. I do not accept that there is any merit in the allegation.

Allegation “Unreasonable Judge”.

14.  Aside from the fact that both parties were urged to try to reach a sensible compromise on the issue of child care that did not involve illegality, which the court could not sanction in any event, it is hard to see how this allegation can stand up. Ms Manek maintains that it is baseless. I tend to agree. 

Conclusion

15.  In such circumstances it seems to me that the court has no alternative but to dismiss the wife’s application. Costs shall follow the event in the normal way. Thus there shall be an order nisi to be made absolute in 14 days’ time that the wife shall pay the husband’s costs of and occasioned by her application dated the 21 July 2017 to be taxed on a party and party basis if not agreed. The husband’s own costs to be taxed in accordance with Legal Aid regulations. It is further directed that the Respondent write to the court within the next 14 days to indicate whether or not she now wishes to restore her application for maintenance pending suit/interim maintenance.  In the event that she decides to restore the matter the court will give further directions and will set the matter down for a further substantive hearing. There shall also be a further First Appointment on the 27 October 2017 at 9:30 a.m. Both parties do personally attend that hearing.