Dx v. Ln

FCMC No. 7870/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 7870 OF 2014

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JUDGMENT
(Maintenance Pending Suit & Costs Provision)

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1.This is the Petitioner Wife’s application by way of a summons issued on 22^nd April 2015 for maintenance pending suit of HK$142,000 per month or such reasonable sum as the courts deems fit for herself and the 2 children of the family whose care and control have been granted to her after a 5-days trial earlier this year, and by a second summons issued 2 months later on 26^th June 2015 for provision of her legal costs at HK$200,000 per month from the Respondent Husband pending the final determination of the question of ancillary relief, which now appears not to be anytime soon given that preliminary issue have just been raised over the beneficial ownership of various landed properties currently held in the Husband’s name but which he claims to be beneficially owned either by his father or by both of his parents.    

2.At the returned hearing of the Wife’s said summons for maintenance pending suit on 22^nd April 2015 which had to be adjourned for argument, I made an order for the Husband to pay what he then offered of HK$35,000 per month as interim maintenance pending the determination of that application which is now before me, but which he now claims he cannot afford and proposes that amount be further reduced to HK$20,000 per month due to his deteriorating financial situation after allegedly being cut-off by his father financially whom he had always relied on but has since fallen out with him as a result of the breakdown of his marriage and the Wife’s present divorce proceedings.

3.This is of course not acceptable to the Wife who believes that the Husband has ample financial resources to meet her urgent needs, but that he and his family have now ganged up against her by presenting such false pictures of his financial situation to mislead the court and to defeat her financial claims against him.      

The Background

4.The background of the case had already been set out in my earlier judgment of 19^th June 2015 on the trial of the care and control of the children, and I do not propose to recite them here save for those details especially financial aspects which are relevant to the matter now before me.

5.The Wife is now aged 30 and a full-time housewife, while the Husband aged 37 is a businessman working in his father’s business in Wuhan, which is where the parties were born and raised, with the Wife being the only child of her now divorced parents, and the Husband the only son with a younger sister of a rather well-off family with substantial business interests including real estate in Wuhan.

6.In 1995 the Husband and his family came to settle in Hong Kong, from where he then went to Australia for further studies before returning in 2003 to work in his father’s business, spending most of his time in Wuhan where he met the Wife who was then just fresh out of university, and subsequently married her on 27^th November 2006 in Hong Kong.

7.After marriage the parties made their home initially in Wuhan where the Husband continued to work in his father’s business, of which it is not in dispute that he was being groomed to eventually take over, while the Wife never worked and was a full-time housewife.      

8.0pt;margin-right:0cm;margin-bottom:0cm; margin-left:0cm;margin-bottom:.0001pt;text-align:justify;text-justify:inter-ideograph; text-indent:0cm'>8.     In about 2010 when the Wife became pregnant the parties relocated to Hong Kong where their elder son WL was subsequently born on 16^th August 2010. The parties then made their home in a 2,100 sq ft property at Harbourfront, Hung Hum while the Husband would shuttle between Hong Kong and Wuhan for his father’s business. By then the Husband’s mother has also come to stay with the parties, while his sister who is married to a Hong Kong resident also lives with their own children in the same neighbourhood.      

9.On 22^nd July 2012 the Wife gave birth to their younger son SF. By then the parties had 3 domestic helpers in their household with 2 of them to assist in the care of their children and the 3^rd helper for the household chores, while the mother also from time to time helped out with the care of the children.   

10.In about Christmas 2012 the Wife suspected the Husband was having an affair with another woman in Wuhan and, after a heated confrontation with him, she suffered an emotional breakdown and left Hong Kong on 3^rd January 2013 to return to her mother’s home in Wuhan where she met and told the Husband’s father of the extra-marital affair. On 10^th January 2013 she returned to the former matrimonial home in Hong Kong when the parties appeared to have reconciled.

11.However, during their trip to Wuhan in early February 2013 for the Chinese New Year, the Wife became suspicious that the Husband was still carrying on with his extra-marital affair and therefore left Wuhan to return to Hong Kong by herself. A few days later she decided to separate from the Husband and moved out of the matrimonial home after removing her jewellery and some gold bars from the safe deposit box and withdrawing about HK$3.2 million in cash from her own bank accounts as well as their joint account to return to her mother’s home in Wuhan where she received treatments for emotion trauma.

12.For the following year or so the Wife return to Hong Kong on various occasions to stay or spend time with the children, and eventually in February 2014 she rented a 650 sq ft serviced apartment in Hung Hum near the former matrimonial home for herself and the elder boy WL as the younger boy SF was then still remaining in the former matrimonial home under the care of the Husband with the assistance of his mother.

13.On 21^st February 2014 the Wife launched these proceedings against the Husband for divorce, custody care and control of their 2 children as well as general ancillary relief for herself and the children. While the Husband agreed that their marriage was indeed at an end, for which the decree nisi of divorce has since been granted, and that the parties should have joint custody of their children, the question of their care and control was strenuously contested, and as noted above after a 5-days trial the Wife was granted the care and control of both children on 19^th June 2015, and as a result the younger boy SF has since August 2015 also come to reside with her and the elder boy WL at her rented apartment.

14.It was during that trial on 22^nd April 2015 when the Wife claimed to have almost exhausted all her funds that she found it necessary to apply for maintenance pending suit, and that the Husband offered to pay HK$35,000 per month which the Wife found to be wholly inadequate but nevertheless accepted on interim basis pending determination of her maintenance pending application issued on the same day.

15.By then the parties had of course already filed their respective Form E back in May 2014, in which the Husband claimed to work as a consultant for a company in Wuhan presumably owned by his father and earning a monthly salary of only HK$15,000, with an even smaller monthly expenditure of HK$14,100 with virtually no household expenses and essentially just for his meals out of home and entertainments and holidays for himself and the children, while being the registered legal owner of the said matrimonial home at Harbourfront and several properties in Wuhan (“Wuhan Properties”) the total value of which he put at HK$82 million but which he also qualified as being held on trust for his fatehr, and with bank savings of almost HK$750,000 and personal items worth more than HK$3 million including 3 vehicles [A1/15 - 40].

16.In her Form E [A1/98 – 125] the Wife confirmed to be a housewife without any income or past employment experience, that she had about HK$1.2 million in savings left of the HK$3.2 million which she earlier withdrew in 2013, and a property in Wuhan worth about HK$1.7 million, but had a monthly expenditure as much as HK$140,000 for herself and the elder boy WL including rental of HK$19,200 for her current apartment. She also gave a detailed account of how she had spent the HK$3.2 million essentially on her living expenses over the past 2 years and her legal costs incurred in these proceedings, leaving her with only about a third of the money left at the time of her Form E.

17.In support of her present application for maintenance pending suit, the Wife filed her 8^th Affirmation on 22^nd April 2015 [A3/606] to update her cash position which she claimed to be virtually nil and that she has been relying on borrowed moneys from her relatives close to HK$1 million so far to meet her daily needs and those of the 2 children as well as her legal costs, and that she now has an urgent needs of HK$142,000 per month for her current living expenses pending the determination of her ancillary relief claims.

18.0pt;margin-right:0cm;margin-bottom:0cm; margin-left:0cm;margin-bottom:.0001pt;text-align:justify;text-justify:inter-ideograph; text-indent:0cm'>18.     Apparently for the same reasons the Wife issued another summons on 26^th June 2015 for litigation costs allowance to be included as part of her maintenance pending suit application to be heard together, and in her 9^th Affirmation [A3/666] in support she claimed to require HK$675,000 for counsel fees up to FDR hearing, plus solicitors’ costs which she claimed to have spent on average about HK$64,000 per month in the past.    

19.In response the Husband filed his 5^th Affirmation of 22^nd July 2015 [A4/896] in which he took issue with the Wife’s allegation that she has exhausted all her savings, and insisted that as he was merely earning a monthly salary of only HK$15,000, he was all along during the marriage largely relying on his father to support himself and the family in that all their daily expenses were met by the monthly rental income of more than RMB300,000 from the Wuhan Properties beneficially owned by his father, but that since January 2013 after the Wife told his father of his extra-marital affair, he was no longer authorized by his father to use the rental income, and with only about HK$320,000 left in his savings, he has in fact also been relying on his mother and sister to pay for his expenses including his legal costs which had been paid by his sister of more than HK$3.4 million. He concluded his said affirmation by praying that he be allowed to reduce his interim maintenance for the Wife from HK$35,000 to HK$20,000 per month in view of his present predicament.

20.About a month later on 18^th August 2015 the Husband issued a summons to join his parents as parties to these proceedings for the sole purpose of determining the beneficial ownership of the former matrimonial home at Harbourfront and those Wuhan Properties as a preliminary issue before the Wife was to proceed with her ancillary relief application, as he now formally claims, as he did in his supportive 6^th Affirmation of the same date, that these properties have all along been held by him on trust for his father and/or mother, which summons was returnable on the same date of the Wife’s maintenance pending suit application, and an order was therefore made by this court on that day without argument for the parents to be so joined with the usual directions to file their affirmations in due course.      

21.Meanwhile given the huge gulf between the parties as to their respective proposal the Wife’s maintenance pending suit application was argued before me on 25^th August 2015 by Ms Anita Yip SC for the Wife and Mr Jeremy Chan for the Husband, and typical of applications of this sort there were no oral evidence from the parties and their arguments were essentially made on the basis of their affirmations before the court. 

22.Before proceeding to consider such arguments and affirmation evidence of the parties, however, it would be helpful to first set out the legal principles applicable to such application as follows.

Applicable Legal Principles

23.The power to order maintenance pending suit is set out in s 3 of Matrimonial Proceedings and Property Ordinance, Cap 192 (MPPO) whereby the court may order a party to make to the other such periodical payments for his or her maintenance and for such term beginning not earlier than the date of the presentation of the petition and ending on the date of the determination of the suit, as the court thinks reasonable.

24.It is clear that under this provision there is no power to make an order for an interim lump sum or an interim order for sale or transfer of property, but otherwise the court has an unfettered discretion in the matter subject to the result being reasonable: F v F (maintenance pending suit) (1983) 4 FLR 382.

25.As for the matters which the court should consider in assessing an application for maintenance pending suit, Rayden and Jackson on Divorce and Family Matters, 18^th Edition, said these as follows:

“16.17. … There is no hard and fast rule, and no fixed proportion: each case depends on its own facts. It has been said that the approach to maintenance pending suit should be empirical, and that ‘in the ordinary sort of case the district judges who deal with these applications will have to take a broad view of means on the one hand and income on the other and come to a “rough and ready” conclusion’, or take a ‘broad brush’ approach. The overriding consideration is the actual needs of the parties pending suit. Although the provisions of s 25 of the MCA 1973 are expressed to arise only when the court is deciding whether to exercise its powers under s 23, 24 or 24A, the court may nonetheless have regard to the criteria listed in s 25 on an application for maintenance pending suit.

16.18. 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 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 and take into account voluntary funding from third parties. 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 every opportunity to do fairness by set-off…”

26.It is also noteworthy that the Wife in this case has based her reasonable needs on the high standard of living which she claims to have been provided by the Husband during the marriage, and that the Husband himself has in his Form E put the total value of those landed properties registered under his name including the former matrimonial home in excess of HK$80 million. While it remains to be seen whether or not this case would qualify as one of those big money cases specifically mentioned by Thorpe J, as he then was, in F v F (ancillary relief substantial assets), [1966] 2 FCR 307, [1995] 2 FLR 45, it would be helpful to refer to his guidance on the exercise of the court’s discretion in determining the wife’s reasonable needs on an interim basis according to standard of living in big money cases as follows

“I think that it is very important to recognise that in measuring affluence, extravagance and reasonable needs there are no absolutes. All these concepts are comparative … Thus, in determining the wife’s reasonable needs on an interim basis it is important as a matter of principle that the court should endeavour to determine reasonableness according to the standards of the ultra-rich and to avoid the risk of confining them by the application of scales that would seem generous to ordinary people. This I conclude that it would be wrong in principle to determine the application on some broad conclusion that if the wife cannot manage at the rate of a quarter of a million a year, she ought to be able to. I think that it is necessary to establish a yardstick that more nearly reflects the standard of living which has been the norm for the wife ever since marriage and for the husband for considerably longer.”      

27.As the Wife’s present application is not just for her own reasonable needs but also those of the 2 children of the family whose care and control has earlier been granted to her, it would also be relevant to note that s 5 of MPPO gives the court much wider powers in dealing with financial provision for children both in terms of both the time for making orders which is before (hence maintenance pending suit) or on granting the decree of divorce, and the range of orders that the court can make including periodical payment, secured periodical payment, as well as a lump sum for the benefit of the children or for the purpose of enabling any liabilities or expenses reasonably incurred by or on behalf of the children before the making of the application, and that the court may exercise such orders from time to time, and to make further orders from time to time.      

28.Furthermore, when considering such application albeit interim on behalf of the children, s 7(2) of MPPO requires the court to exercise those powers as to place the children, so far as it is practicable and just to do so, in the financial position in which the children would have been if the marriage had not broken down and each of the parties had properly discharged his or her financial obligations and responsibilities towards them. This would in my view be particularly relevant when the court comes to consider the standard of living which the children used to be able to enjoy and the parties’ proposed financial provisions for them.

29.It is with these principles and guidance in mind that I shall now consider the evidence on the maintenance pending suit, which is as expected essentially from the parties’ relevant affirmations and other materials but without oral evidence, starting with the Wife’s stated needs for herself and the children.      

The Wife’s Needs

30.I propose to deal with the Wife’s needs in terms of living expenses for herself and the children first, with her legal costs provision separately later in this judgment, but whatever my observations and findings made in respect of the parties’ respective financial means and resources when considering the former shall of course also apply to the latter where relevant.

31.Firstly, it is not in dispute that the Wife was throughout the marriage a housewife wholly dependent on the Husband, but that since their separation no maintenance had been paid by him until the said sum of HK$35,000 offered in April 2015, presumably on the basis of her earlier withdrawal of HK$3.2 million. As noted in her Form E when she had only the elder son WL residing with her and under her care, the Wife put their then monthly expenses at just over HK$140,000 being HK$51,900 for her household expenses including HK$19,200 for renting her present apartment, HK$69,300 for her personal expenses, and HK$19,725 for WL’s expenses including his school fees of HK$4,775 which were all along being directly paid for by the Husband [A1/116 – 117].

32.In the same Form E the Wife put the total balance of her 4 disclosed bank accounts at about HK$394,000 but explained that in addition she also had about HK$820,000 left of the HK$3,230,000 which she withdrew in February 2013 and placed with her mother for safe keeping after meeting her living expenses from about February 2013 to May 2014 when she filed her Form E in the total sum of HK$1,308,000 as well as her legal costs [A1 : 109 – 110]. She disclosed no other assets of significant value save for some personal jewellery and an apartment in Wuhan worth about HK$1.7 million.        

33.More than a year down the road since and after a major trial over their children, it is the Wife’s case that she has now run out of all her cash and has to resort to borrowing from her relatives in total loans of some HK$875,000, and hence she requires urgent financial assistance from the Husband, as she explained in her 8^th Affirmation [A3/606, 608 – 611] where she gave an itemised breakdown of her immediate needs for herself and the 2 children in paragraph 22 as follows [A3/612 – 614]:

General Household Expenses	HK$
Rent	$19,200
Utilities	$ 1,700
Food	$19,200
Domestic Helper	$10,000
Others	$  158
	General Household Subtotal :   $56,258
Personal
Meals out of home	$16,000
Transportation	$ 3,000
Clothing/Shoes	$22,500
Personal Grooming	$15,000
Entertainment/presents	$ 1,000
Travelling/Holidays	$ 2,000
Medical/Dental	$ 500
Insurance	$ 7,800
Others	$ 800
	Personal Subtotal :  $68,600
Children
School fees	(paid directly by Husband)
School books and stationary	$ 1,050
Transportation	$ 1,180
Medical/Dental	$ 2,500
Extra-Curricular Activities	$ 2,908
Entertainment/presents	$ 1,500
Clothing/Shoes	$ 4,000
Travelling/Holidays	$ 2,000
Lunches and Supplements	$ 1,400
Others	$  500
Children Expenses Subtotal : $17,158
	Total : $140,016

34.In support of such claim the Wife also made references to her various Answers to the Husband’s Questionnaire regarding these expenses in Bundle A1/267 – 275. In addition she claims to require a larger 3-bedrooms apartment of about 1,200 sq ft in the same neighbourhood to accommodate the 2 children at a higher rent of about HK$50,000 which would bring her total expenses to HK$172,800 per month, and which Ms Yip submits that the court should use a broad brush to round up to HK$200,000 as there is no reason why the Wife and the children should suffer a significant downgrade and to spend with great caution when it was never the case during the marriage, and that it is all the more so given the plain and clear inference which can be drawn from the evidence that the Husband has access to massive wealth.       

35.Mr Chan for the Husband however submits that, without prejudice to his case as noted above that he no longer has the ability to pay, in the absence of any concrete documentary evidence such as credit cards and bank records as the Wife was allegedly operating only in cash, whatever her actual spending would be matters within only her knowledge, but that she has grossly exaggerated her needs to almost twice as much as her actual spending over the past 2 years.

36.Firstly, Mr Chan submits, it is her own evidence in her said Form E [A1/110] that she spent HK$1,308,000 over the course of 16 months from February 2013 to May 2014 which averaged out to only HK$81,750 per month, and if one were to exclude the month of April 2013 during which her spending was exceptionally high at HK$120,000, then her monthly expenses would come down even further to just HK$79,200 on average.      

37.Elsewhere in her said Answers to his Questionnaire, Mr Chan submits that the figures given by the Wife also produce a much reduced average of her monthly expenses than her present claim, such as the HK$1 million which she claimed to have spent from February 2013 to February 2014 [A1/265] which comes to about HK$83,333 per month on average.

38.Furthermore, Mr Chan submits, in the same Answer the Wife also stated that from February 2013 to February 2014 during the period when she was staying in Wuhan, her average spending amounted to RMB70,000 per month, but as it also included RMB380,000 on hiring a private investigator which should not be treated as part of her living expenses, and hence her actual average expenses would be more like RMB30,000 to RMB40,000 per month, while her monthly average in Hong Kong from March to May in 2014 was actually only HK$60,000, hence the Husband believes that the Wife has grossly exaggerated her claim for HK$140,000 per month in her present application.

39.Mr Chan has cited further examples of what the Husband believes to be exaggerations of the Wife’s claim of HK$36,600 for spending on food including meals out of home which would average to more than HK$1,200 per day and which he argues as wholly excessive for an adult and 2 small children, and similarly it is unreasonable for her to lavish more than HK$38,000 per month on herself in clothing, handbags and other luxurious items at a time when her marriage is coming to an end and she is going through expensive litigation.

40.Based solely on these figures this argument of the Husband may well be valid, as even Ms Yip’s very helpful table in paragraph 72 of her Skeleton Submission which summarises the Wife’s total available cash after payments for her legal costs and private investigator with a balance of HK$2,637,077 to meet her living expenses over 31 months from February 2013 to August 2015 would average to just over HK$85,000, an amount more in the vicinity of the Husband’s figures and far less than her claim of HK$140,000 per month.

41.Ms Yip however submits that it would not be right to just rely on those figures as it is only fair that the court should also look at the parties’ standard of living during the marriage for the determination of maintenance pending suit on what should be the Wife’s reasonable living expenses, when she first in her Form E [A1/120] gave details of the family’s spending pattern during the marriage and later repeated again in her 9^th Affirmation as follows [A3/607]:

“4. I am a full-time housewife. During the marriage, the Respondent has been responsible for all the expenses of the family, including expenses of the household, my personal expenses and the children’s expenses. I never had to worry about money.

5. To my understanding, the respondent has a monthly income of about RMB300,000 odd which he would use it for paying the expenses. There was always cash at home (i.e. cash in the range of HK$50,000 to $100,000 or occasionally HK$200,000) which I could freely take when I needed money. I would also use the cash at home for paying the helpers’ salaries and to give them money for buying food. In addition, the Respondent would pay me RMB40,000 each month by transferring the money into my bank account. I also have the use of his supplementary credit card, the limit of which was originally HK$300,000 and was subsequently increased to HK$1 million. I was not required to spend within a budget.

6. Whenever we went out for dinning, shopping or going on holidays, the Respondent would pay for the bills. The Respondent would also buy me handbags, shoes and clothings when we went shopping.”

42.All of these, Ms Yip submits, were however never disputed by the Husband in his subsequent affirmations, and hence it cannot be right for him to now levy severe criticism on her claimed needs. In any event she argues that the Wife has already produced all the documentary evidence that she could including some receipts to support her expenses in her various Answers to the Husband’s Questionnaires, and that a broad brush glance at her figures suggest that they are more than reasonable and cannot be trimmed given the evidence of her spending pattern during the marriage.

43.Indeed the Husband never in his 5^th Affirmation, which he specifically stated was made in response to the Wife’s 8^th and 9^th Affirmations, nor in any of his other affirmations did he try to dispute or challenge her alleged spending pattern during the marriage, and which he could have easily verified one way or the other by producing past records of his own credit cards or of her supplementary cards but which he has chosen not to do so.

44.True or exaggerated, the spending pattern of the family during the marriage must inevitably depend on the Husband’s financial means and resources, albeit essentially at a broad brush glance at this stage but undeniably with abundant materials and information available as a result of extensive discoveries having already taken place between the parties, the evidence of which I propose to consider next.      

The Husband’s Ability to Pay

45.The Husband’s case is that essentially he had all along worked under his father who and his mother used to provide him with various privileges and resources to meet his expenses and those of his family, but that since January 2013 after the Wife had told his father about his extra-marital affair, his financial situation has since changed for the worse as he was no longer allowed to use any of the rental income derived from the Wuhan Properties of some RMB320,000 ( ̴ HK$380,000) per month, and as his monthly salary of HK$15,000 is far from sufficient to meet his needs, he has been relying on his mother and sister to pay for his expenses including the children’s school fees and interim maintenance.

46.In his said 5^th Affirmation it is particularly noteworthy of what the Husband stated about his financial reliance on his parents especially his father as follows:

“(3) All along during marriage, the petitioner was well aware that I was largely relying on my father … to support myself, her and our children financially as I am only earning a monthly salary of about HK$15,000.00…the daily expenses of the Petitioner and I are paid for by the rental income derived from a property in Wuhan which is beneficially owned by my father. It is the Petitioner’s practice since 2013 to claim reimbursement of expenditures from my mother with receipts. My father would also assist my finance and arrange to transfer money to my bank accounts when I am in need.

(4) My mother … is a full-time housewife and she relies on my father to support her financially…

(5) The rental income for (4th floor of Wuhan Property) was deposited into my China Construction Bank account … The rental income for (3rd floor of Wuhan Property) was deposited into my HKB account …

(6) It was my father’s instructions to the tenants … that they should pay their rent directly to my said bank accounts. All the said rental income … is in fact beneficially owned by my father.

(7) Upon prior approval by my father, I would withdraw money from my said bank accounts to pay for the daily expenses of the Petitioner and I and the expenses of the family if necessary.

…

(10) However, since in or about January 2013, after the petitioner told my father about my extra-marital relationship as alleged by the petitioner, I was no longer authorized to use any of the rental income including the rental income for (3rd and 4th floor of the Wuhan Property). There is now shown and produced to me a table showing the rental income derived from (3rd and 4th floor of Wuhan Property) enclosing the relevant bank statements …

(11) To further update my current financial position, there is about a total sum of HK$321,483.56 in all my bank accounts according to the latest bank statements that I have …

(12) Apart from the shares that I hold under my HSBC investment account … of a value of HK$6,140.69 as of 16th May 2015, I also hold shares in trust of my aunt and her friend under my securities account at BOCOM International Securities Limited in the sum of about HK$100,000.00 and HK$1,000,000.00 respectively since in or about June 2015 …

…

(15) I have been relying on my mother … and my sister … to pay for my expenses since in or about January 2013. For details, please refer to my Answer to the Petitioner’s Questionnaire.

(16) My sister has already paid a total legal fee of HK$3,443,610.00 to my former solicitors Messrs. Cheung & Choy and the costs on account in the sum of HK$100,000.00 to my current solicitors Messrs. Wat & Co. since in or about March 2014. Out of the loan of RMB2,000,000.00 (HK$2,900,000.00) owed by me to (Sister), (Sister) has paid about a legal fee of HK$400,000.00 to my former solicitors Messrs. Cheung & Choy and my father have on behalf of me repaid her a total sum of about HK$500,000.00 in about 2013 or 2014. There was an additional loan in the total sum of HK$3,143,610.00 (being HK$3,443,610.00 and HK$100,000.00 less HK$400,000.00) owed by me to (Sister) pursuant to the said loan of RMB2,000,000.00 (HK$2,900,000.00) for payment of my legal fees. In early 2015, there was a further loan of about HK$500,000.00 owed by me to (Sister) for payment of my credit card bills. The said additional loan of HK$3,143,610.00 and the said further loan of HK$500,000.00 are repayable on demand and interest free …

(17) I can never pay the petitioner the requested maintenance pending suit in the sum of HK$142,000.00 per month without the financial support from my father. In fact, I have difficulty to pay the interim maintenance of HK$35,000.00 to the Petitioner. My sister … has been paying the HK$35,000.00 interim maintenance to the Petitioner for me since April 2015 …

(18) In paragraph 33 of the said 8th Affirmation of … the Petitioner says that I should have the ability to pay to her the requested maintenance pending suit in the sum of HK$142,000.00 per month partly because I have been travelling to Macau, taking the children to overseas holiday. I emphasize that all the expenses for such trips have been paid by my father using his own money.”      

47.As a result of being cut-off by his father, the Husband claims that his cash position has dropped more than half from some HK$749,000 at the time of his Form E to only about HK$321,000 at the time of his said 5th Affirmation, and hence he concluded in that affirmation that he can no longer pay the interim maintenance of HK$35,000 per month, that he has had to ask his sister to bear the same, and that it should be reduced to HK$20,000 per month as the best he can provide to the Wife at the moment [A4/903].

48.Pausing here first before moving on to the Wife’s arguments, 2 questions immediately arise from that conclusion of the Husband: With still some HK$321,000 in his savings in July 2015, and with all his expenses already paid for by his mother and sister with further financial assistances such as HK$500,000 from the sister for his legal costs in early 2015, what difficulty does he have with payment of the interim maintenance of HK$35,000 that he has had to ask his sister to pay on his behalf, and why is a reduced amount of HK$20,000 the best he can provide when he still has enough cash to pay HK$35,000 for a further 9 months without even taking into account of his monthly salary of HK$15,000? I am unable to find any answer to ether questions from his evidence.      

49.His case of financial difficulties is as noted above of course not acceptable to the Wife, and Ms Yip submits on her behalf that on the clear evidence before the court, the Husband is a man of independent means as the registered owners of various properties gifted to him by his father and/or his mother and with their substantial rentals as his monthly disposable incomes more than sufficient to meet her needs and of the children.

50.Firstly, Ms Yip points out, while the Husband may have claimed in his Form E that he only held the former matrimonial home and those Wuhan Properties on behalf of his father, he also stated to own their full beneficial interests at total net value of HK$82,700,000 [A1/19 – 23], and in the summary of Part 2 of his Form E, he put his total assets at HK$86,443,634.77, and that even after setting them off against his total liabilities which were essentially debts allegedly owed to his parents and sister, he still had a substantial net worth which he put at more than HK$37 million [A1/31].

51.Furthermore, Ms Yip submits that of these alleged debts which totalled RMB32,308,920 ( ̴ HK40 million), according to his Answer given to the Wife’s 1^st Questionnaire, the Husband explained that RMB12,888,120 were loans from his parents for the acquisition of some of those Wuhan Properties, while the rest of almost RMB19.5 million were for the mortgage payments and other expenses [A2/409].     

52.All these, Ms Yip argues, contradict his own case that he is merely holding these properties for his father or parents, as otherwise he would not have stated in his Form E, which was prepared by his former solicitors, that his beneficial interests in them were valued at more than HK$82 million instead of nil if he was indeed just a trustee or nominee holder, nor would he have claimed to have borrow RMB32 million from his parents for their purchase. Hence, even on his own case, these properties actually belong to him.

53.However, when he filed his 6^th Affirmation in support of his Joinder Application on 17^th August 2015, Ms Yip argues that the Husband tried to change his case by alleging that these loans from his parents were actually not loans when he said this in §18:

“In my Answer to the Petitioner’s Questionnaire filed herein 18th November 2014, I said I have borrowed a total sum of RMB10,150,000.00 from my parents for the mortgage payments and my monthly expenses [Bundle A2/p.409). According to paragraph 1 of the (Borrow Note) dated 25th January 2013, prior to my repayment of the said sum of RMB10,150,000.00 my parents are entitled to all the interests including the value-added interests of the Hong Kong property purchased under my name … I now clarify and confirm that the said total sum of RMB10,150,000.00 is in fact not a loan by my parents to me and the said Hong Kong property refers to the Harbourfront Flat. The said (Borrow Note) was signed between my parents and me to evince in writing that they have paid a total sum of RMB10,150,000.00 for the mortgage loans and my monthly expenses and should be entitled to all the interests of the Harbourfront Flat despite that it is registered under my name and in view of my deteriorating relationship with the Petitioner since in or about January 2013. It has long been our intention that my parents should be entitled to all the interests of the Harbourfront Flat …”  

54.Ms Yip submits that plainly the Husband referred to that sum of RMB10 million odd as loans borrowed from his parents, and similarly with those other sums for the acquisition and mortgage payments of the Wuhan Properties, and that however they were dressed up by him and his parents in their 2 so-called loans agreements [A4/1150 & 1215] which she notes were both homemade after the Wife had gone to seek his father’s help in January 2013 over the Husband’s extra-marital affair, she submits that they do not in fact support his trust case.

55.Ms Yip further submits that another document produced by the Husband dated 31^st March 2011 [A4/1191], shows that 2 of the Wuhan Properties were acquired in his name back in 2001 and 2002 with his father’s money is consistent with the fact that the father gifted them to his only son of the family, while those additional documents [A4/1211 – 1213] which claimed that some of the Wuhan Properties actually belong to the Husband while the others belong to his father, and that no mention was made as to the Harbourfront property, all of which she submits to be inconsistent with the 2 loans agreements, and that as a matter of law the alleged arrangement of loans and trust cannot co-exist.

56.That is another salient point, Ms Yip submits, if indeed the father was genuine or serious about his ownership in these properties, it strikes as very odd that he has so far not made any affirmation supporting the Husband’s case at all, which she can only conclude that all the evidence in fact support the Wife’s case there were never any loans nor trust over the acquisition of these properties which were all gifted by his parents to the Husband as their only son of their family, which is why all along he could use and spend their rental income in whatever ways he wanted without having to account to his parents or made any repayment to them after all these years.

57.It is of course not possible nor appropriate for me at this stage, in the absence of oral testimony or affirmations from the Husband’s parents, to make any factual findings as to what exactly these loans agreements and other documents produced by the Husband including those purportedly signed between his parents were about in relation to those properties which he claims to be held on trust for them, which is to be dealt with separately as a preliminary issue now that the parents have been joined for that purpose, but for the application now before me, it is the Wife’s case that there is in fact ample other evidence that the court can find that the Husband has the means and resources to meet her immediate needs without making any specific findings as to the ownership of these properties.       

58.Ms Yip submits that even on his own admitted case the Husband has always been well provided for by his parents to a limitless extent, and that there is no evidence to suggest that such financial support has ceased or will cease, nor is the court bound to accept his bare assertion that he has since January 2013 been cut off financially by his father, of which the Wife believes to have never actually happened, but rather just some excuse made up by the Husband along the way and as part of the scheme which he and his family have ganged up against her in these proceedings, and I can see why.

59.Firstly, Ms Yip argues, it is the Wife’s case that throughout the marriage the family could spend limitlessly, and that on top of the rental income from those Wuhan Properties of more than RMB300,000 per month which the family could use without any restriction, the Husband also had other sources of funds which enabled him to spend far beyond those rental income, such as his spending of HK$419,977.74 at Marina Bay Sands Hotel in Macau in August 2014 [A4/999/§32], and another sum of HK$414,000 at Galaxy Macau in April 2015 [A4/889] which the Wife believes were for his gambling habit, and his many other substantial spending on luxurious goods such as jewellery, watches and handbags as evidenced by his credit cards record and summarised in §55 of her Skeleton Submission.

60.In support Ms Yip points to what the Wife believes to be the Husband’s numerous material non-disclosure about his true resources, such as the list of transactions revealed from his various bank accounts records of very substantial deposits and withdrawals exhibited to his Form E [A1/228 – 231] which he mostly failed or refused to explain or clarify in his answer to her several questionnaires, or his failure to disclose his interests in his Form E of other assets held in his name or possession including car parking spaces #91 – 94 of those Wuhan Properties, 3 additional bank accounts with China Construction Bank, China Merchants Bank and China Minsheng Bank, the whereabouts of the sale proceeds in excess of HK$7.4 million of a property known as Tower 3 of Aria in Kowloon held in his sole name, or a securities account which he only claimed to be held on trust for his relatives at a much later stage without any documentary evidence and only when queried by her questionnaires, all of which Ms Yip submits as non-disclosure of the worst kind, and for which the court should draw adverse inference that he has ample financial resources of his own independent of his parents.        

61.Secondly, Ms Yip submits, the Husband’s allegation of being financially cut-off or withdrawn of authorisation to use the rental income by his father since January 2013 was incredible, as not only was there not supported by a single word from his father, it is in fact totally absurd to think that his father would actually do that, given the fact that the Husband had always denied that he was having any extra-marital affair at that time, a denial he has always maintained up to now and throughout the custody trial over the children of the family, during which he had also called his mother and sister to give evidence in support of his case, hence it is absurd for him to now ask the court to believe him that his father has stripped him of the right to use the rental income because the daughter-in-law told him something which his son has always denied and corroborated by the mother and sister.

62.Given the Husband’s close relationship with his parents and their apparent complete trust on him with their financial affairs to the extent that one day he is to take over the father’s business, I can see why the Wife finds this allegation of the Husband that he has been cut off financially simply because of what she had told his father incredible, and that it would still be so even if he had never denied the extra-marital affair to his father, or that his father had chosen to believe his daughter-in-law over his own son.

63.Furthermore, it is relevant to note what the Husband’s sister said in her affirmation on 22^nd July 2015 in support of his case as to how the father later became upset by the Wife’s actions and decided not to help her anymore [A4/983§8]:

“ … the Petitioner also alleges that my father said to her that he would pay her back for what she has spent in that period. I was present at the time of the said conversation between the Petitioner and my father and I heard what my father said – our father said that he would agree to pay for the Petitioner’s expenses for taking of the children provided if and only if the Petitioner and the children stay in Hong Kong, the Petitioner must not divorce the Respondent and must take care of the children. However, the Petitioner did not do so – she left Hong Kong and subsequently proceeded to divorce the Respondent. Our father is very angered by the Petitioner’s actions. I believe that if the Petitioner had stayed in Hong Kong with the children and had not divorced the respondent, then our father would have continued to financially support the petitioner and the children, and indeed he had done so all along in the apst, which is how the Respondent and his family survived. Our father has decided that he will no longer financially support the Petitioner and the children, and indeed has also cut-off the respondent as well.”

64.If indeed the father subsequently became upset by the Wife’s actions in bringing divorce proceedings, one may ask why did he continue to cut off his financial support for his only son? As a matter of fact, the sister in her said affirmation also mentioned another reason for the father’s cutting off the Husband, as told to her by her mother, that it was because the Wife had also told the father in about December 2012 or January 2013 that the Husband had lost HK$8 million gambling in Macau which made the father very angry, and that the Wife therefore asked the father to cut him off and stop letting him any access to money [A4/982§6].

65.Even leaving aside this evidence as told to the sister by the mother is clearly hearsay and so far not corroborated by either parents or even the Husband himself, again this assertion that the father would take such drastic action against his own son solely on the basis of his daughter-in-law’s words is highly questionable, all the more so when the sister also stated in the same paragraph that up to the time of her affirmation and more than 2 years since the Wife’s alleged conversation with the father, that she still did not know whether or not the Husband really did lose so much money in gambling as alleged, given the severity of the allegation and the amount of money involved as well as the sister’s proclaimed closeness to her brother and her involvement in almost every detail of his family as evidenced by her support to him throughout his earlier custody trial and her alleged payment of more than HK$3.4 million for his legal costs, it seems very odd to me for her not to have known by now whether or not the Husband did gamble away that kind of money.

66.It is in fact the Wife’s case, Ms Yip submits, that the Husband’s gambling habit has all along been well known to his family and that there is absolutely no sign of his parents’ being unhappy about it, as he has still gone about gambling in Macau as recently as early this year, when as noted above his credit card record revealed that he spent more than HK$400,000 in the casinos there on 2 separate occasions in February and April 2015.    

67.Above all, this allegation of him being financially cut-off by his father since January 2013 which if true would surely have been a serious blow to the Husband both as to his finance and his relationship with his parents, or at least something so significant that it would have been at the forefront of his mind when he gave instructions to his lawyers for the preparation of his Form E in May 2014, yet not a single word about it was mentioned in that document or any of his subsequent affirmations filed for the custody trial until the Wife’s present application for maintenance pending suit, nor is there any sign of any such impact on his relationship with his parents when in fact both of them have shown full support to him in his earlier dispute with the Wife over their children.      

68.Ms Yip of course argues that in fact no such cut-off ever took place, as the evidence before the court in particularly the Husband’s bank records clearly show that the rental income had continued to go into his bank accounts since January 2013 as summarised in paragraph 49 of her Skeleton Submission.

69.Mr Chan submits for the Husband that initially indeed the rental income had to be deposited into his bank accounts as he was the registered owner and landlord of the tenancy agreements, but that since February 2013 the rental income passing through his hands was seriously reduced to less than half of previously, and since March 2014 when the Wife filed for divorce, he was financially cut-off totally by his father, whose staunch stance is in fact underlined by the Wife’s own analysis in her 10^th Affirmation when after a few rounds of negotiation with the Father in 2013, she concluded that he cared about money more than anything else [A4/1001§46].

70.Mr Chan therefore submits, should an order for maintenance pending suit be made in favour of the Wife, the father will know for sure that the Husband would be paying money over to the Wife, and even more so the father would ensure that the Husband is not placed with such monies. But has that in fact been the case?

71.The answer may well be found from the Husband’s said 5^th Affirmation already referred to above, in which he claimed that since January 2013 after being cut off by his father to have been relying on his mother and sister to pay for his expenses including more than HK$3.4 million in legal costs, and that it was his sister who has been paying the interim maintenance of HK$35,000 per month to the Wife on his behalf, but that since both the mother and sister are full-time housewives, which begs the obvious question of where did that kind of money, which must have accumulated very substantially over the past 2 years, come from if not from the father?

72.Furthermore, according to the Husband’s said affirmation, it was the father who had subsequently repaid RMB500,000 to the sister on his behalf for his legal costs [A4/899§16], while all the expenses for his trips to Macau as well as his overseas holidays with the children up to this year in 2015 were also paid directly by the father [A4/899§18], which seems to me a case of the father taking away his financial assistance with his right hand but giving it back with his left, and if the whole purpose of cutting off the Husbands finance was to punish him for his extra-marital affair and/or so that he could not continue with such affair, then why at the same time allow the mother or the sister to provide the same financial assistance to him over the past 2 years? None of these make any logical sense to me but rather to support the Wife’s case that they were just part of the Husband’s attempts to mislead the court about his financial resources.

73.If indeed the Husband as well as the Wife and their children were financially supported by third party such as his parents, the law in respect of which was laid down by the Court of Final Appeal in KEWS v NCHC [2013] 2 HKLRD 314 at 317 starting from §36 where Ma CJ stated:

“36.  In every case where third party assistance is involved, there are two critical evidential questions for the court to consider:

What is the extent of the financial assistance provided by the third party to the husband or wife?

What is the likelihood of such financial assistance continuing in the foreseeable future?

37. It goes without saying that in the fact finding exercise, the court must look at the reality of the situation and have regard to matters of substance and not just form. In looking at reality, the court can take into account not only what a party actually has, but also what might reasonably be made available to him or her if a request for assistance were to be made. In O’D v O’D [1976] Fam 83, which involved the court taking into account the financial support given to the husband by his father, Ormrod LJ said at p.90D – E: “In making this assessment the Court is concerned with the reality of the husband’s resources, using that word in a broad sense to include not only what he is shown to have, but also what could reasonably be made available to him if he so wished”.

38.  In addition, in looking at what may occur in the foreseeable future, past conduct is often a useful guide: see SR v CR (Ancillary Relief: Family Trusts) [2009] 2 FLR 1083, at 1091 (para.27).

39.  Having ascertained the extent of the financial assistance provided by the third party and then finding on the evidence on a balance of probabilities that there is a likelihood of the continuation of such financial assistance in the foreseeable future, the court is then in a position in law first to take this into account in the identification of the financial resources of the parties and secondly, in determining the appropriate ancillary relief to be granted. This is an approach that is entirely consistent with the court’s duty under s.7(1) of the MPPO. Needless to say, the outcome in any given case is inevitably fact-sensitive.”

74.In the present case, while the Wife believes that the Husband is independently wealthy and disputes that he is financially dependent on his parents, it is clearly his own case that he and his family had all along been dependent on them including being allowed to make the Harbourfront Property their matrimonial home and to use the rental income of those Wuhan Properties to meet their living expenses, and that notwithstanding his allegation that he has since January 2013 been cut-off by his father, of which I have already expressed above serious doubts, but again even on his own case he has still been relying on his mother and sister to pay for his own living expenses and his substantial legal costs, while his travelling and holidays expenses with his children were also paid for by his father, hence it is clear to me that only the second question referred to by Ma CJ in KEWS above needs to be asked: What is the likelihood of such financial assistance continuing from the Husband’s family in the foreseeable future?

75.Given his clear case of necessity to rely on his parents due to his own limited income, and of his own evidence in the earlier custody trial that he proposed to become a stayed-home full-time father because his parents would continue to provide him with full financial support in the event of the children being granted to him after his divorce, all of which if true, one can only conclude that his parents were willing to do so for the most natural and simple reason that they love and care about him as their only son as well as his children as their grandsons, and that it was out of necessity because his monthly salary is simply insufficient to maintain himself and his children.

76.It follows that after his divorce and that he has been granted joint custody of his children with weekly and holidays staying access to them, would his parents then love him any less and therefore cease or withdraw all such financial assistance that they have been providing him all these years? I simply do not believe so.

77.I have earlier in this judgment already expressed my grave doubts over the allegation that his father would seriously cut him off simply because of being told by the Wife of his extra-marital affair, which doubts have been reinforced by all the evidence that were before me that such financial provision has in fact continued up to the presence albeit in various different forms or guises, and hence in the absence of any expressed desire or intention from his parents, in reality the likelihood that such financial assistance would suddenly cease or be withdrawn can safely be put down as virtually nil, and even if the parents were to do so tomorrow, I am unable to think of any valid reason why they would other than as suspected by the Wife to gang up against her in these proceedings which if true is certainly a conduct not acceptable by the court.       

78.While the Wife disputes that the Husband relies on his parents financially and insists that he is instead independently wealthy, and I can see why given the numerous and substantial transactions seen from his bank records and his credit cards spending referred to above, but even if it is indeed the case that his financial means are confined only to his stated monthly salary of HK$15,000 plus the use of the monthly rental from the Wuhan Properties of more than RMB300,000, which would give him a total sum close to HK$400,000 per month to meet the Wife’s present application, which brings me back to the question of what should be the reasonable needs of the Wife and the 2 children given the background of this family and the standard of living which they used to enjoy during the marriage.

79.As noted above the Wife has asked for more than HK$170,000 per month including renting a bigger apartment now that she has the care and control of both boys and needs more than one domestic helpers and to maintain that high standard of living as before, while the Husband argues that her spending pattern since their separation averaged only about half that amount and at most no more than HK$85,000 per month.

80.While it is clear to me that Wife has based her claim not just on necessity but also what should be reasonable given the Husband’s financial resources and the standard of living during the marriage, which as I have commented above that the past credit cards spending pattern of the parties when fully disclosed should be able to shed some light on, but until then and notwithstanding the Wife’s argument, this does not appear to me one of those “big-money cases” that their spending were unlimited, at least not on the evidence so far before me.

81.Henceforth, except for those “big money cases” where it is commonly accepted that whatever the standard of living during the marriage, the parties can afford to maintain it and should do so while going through litigation whether on voluntary basis or by way of maintenance pending suit, but for the majority of cases, of which I believe to include this case as well, in reality divorcing couple simply cannot afford to maintain the same standard of living for the reason that upon separation there would be 2 households and hence 2 sets of almost every item of expenses to meet instead of one during the marriage, and more significantly because of the litigation very often 2 sets of legal costs as well which very often, as in the present case, simply dwarf the former items, with the couple’s income remaining as before and that whatever other financial resources such as savings would dwindle fast to exhaustion. This is simply the unfortunate reality.

82.No doubt the Wife may very well feel unfairly treated, and I agree she has every right to do so, as there is clear evidence that the Husband had continued to indulge himself say at the casinos in Macau as recently as in early 2015, while she is expected to skim on her normal spending on herself and the children, but the reality is that at this stage of the proceedings when it is quite apparent that its end is nowhere near, I believe that she should exercise caution with her spending when it is simply not practical if impossible to make any long term planning for her future, at least not until the Husband’s true financial means have been properly identified and ascertained, which perhaps explains why she had in fact been spending much less than her proposed sum at only between HK$80,000 and HK$85,000 per month as submitted by Mr Chan for the Husband.

83.In the premises I find the Wife’s proposal to require HK$50,000 to rent a bigger apartment for the children somewhat premature at this stage, while it also appears to me simply not sensible budgeting to maintain the same standard of her past personal spending such as more than HK$53,000 on meals out of home, personal clothing and grooming per month when engaging a hostile and protracted litigation, clearly not at her instigation but seemingly fast becoming out of control and no doubt worrying to all concerned with the resultant escalating legal costs. In the premises and by taking a broad brush approach I find a monthly sum of HK$100,000 more reasonable and sensible to cater for the interim needs of the Wife and the children to be dated back to 1^st day of the month following her application, i.e. May 2015 pending the final determination of the question of ancillary relief or until further order and without prejudice to the parties’ right for proper adjustment at that hearing.        

Legal Costs Provision

84.The Wife asks for a monthly provision at HK$200,000 per month made up of HK$120,000 for 2 counsel and HK$85,000 as costs of solicitors in light of the upcoming discovery and joinder application, the latter of which will inevitably lead to another major battle over the beneficial ownership of those properties held in the Husband’s name but which he claims are on trust for his parents by way of preliminary issue, to be followed by another full-blown trial on her ancillary relief application in view of the Husband’s hostile stance and attitude adopted throughout these proceedings.

85.Mr Chan submits for the Husband, without accepting that he has the ability to pay any costs provision to the Wife, that the Curry test is applicable, which requires the Wife to show that she has no assets or none that can reasonably be deployed, that she can provide no security for borrowing or obtaining legal service subject to a charge on such security, and that she cannot obtain legal aid, of which he argues that, as noted above, it is her own evidence that she has been borrowing from her relatives and friends to meet her living expenses, hence there is no reason why she cannot do so with her legal costs.

86.As I have already found above, I am satisfied on the affirmation evidence before me that the Wife has by now exhausted all her cash that she brought with her when she separated from the Husband during which there was never any maintenance from him either for herself or the elder boy until the recent interim maintenance of HK$35,000 per month, and while she may still have a property in Wuhan, it is simply not practical or reasonable for her to have to liquidate or deploy it as security for borrowing for her legal costs, while it is not in dispute that she is not eligible for legal aid.        

87.More relevantly, Mr Chan submits, legal costs are not incurred each and every month and hence the court should not order a ‘fixed monthly sum’, and that it does not encourage efficient and timely litigation, as otherwise protraction would be rewarded as the longer things are dragged on the more would be paid over as the months go on.

88.Mr Chan therefore submits that if the court is to accede to this application of the Wife, it would be much more sensible and fair to consider a fixed amount broken up into monthly instalments, but of which he argues that the Wife’s suggested figures of HK$725,000 for a senior and a junior counsel for 6 months until FDR and costs of solicitors at HK$85,000 per month as excessive and unreasonable in the circumstances when the Husband is not so represented.

89.I agree that costs provision should be based on one properly estimated lump sum inclusive of both counsel fees and solicitors costs the payment of which if not in one go should be by instalments on monthly or other basis, and that at this stage it should be catered for up to FDR hearing including the possible trial of the preliminary issue involving third parties, but given the time taken for the interveners and the parties to plead their respective case, to be followed by the discovery process and then trial no doubt subject to counsel diary, 6 months seem to me unrealistic and probably at least 9 months if not more, and no doubt the situation can be reviewed again if necessary.

90.As for the Wife’s request for provision for 2 counsel, there is no question that the Husband was so represented during the custody trial, and while he may now be represented only by Mr Chan in this application, he did not say that he will continue to do so, and that in any event given the complexity of the forthcoming preliminary issue involving several properties and that his parents who have now been joined as interveners with what the Wife believes as unlimited resources for their legal team and undoubtedly on the same side with the Husband against her, I accept that in the circumstances and at this stage her request for 2 counsel cannot be said to be unreasonable or unnecessary.

91.On this issue it would perhaps be relevant for me to just refer to what Holman J stated in A v A (Maintenance Pending Suit: Payment of Legal Fees) [2001] 1 WLR 605 at 614E relied on by the Wife:

“This wife has always been dependent on her husband. She is locked into a bitter struggle with him, whose outcome is of intense importance to her. She has an acute need for good legal representation and in circumstances in which her lawyers do not always have to be desperately economising relative to the husband. He himself is spending huge sums on the litigation. He can, in my judgment, afford to pay the sums I have ordered and it is reasonable that I should require him to do so.

In Sears Tooth v Payne Hicks Beach [1997] 2 FLR 116, 118-119 Wilson J referred to:

“a grave and widespread problem encountered increasingly in the Family Division: namely, how can a spouse, usually a wife, who is ineligible for legal aid but who has negligible capital, secure legal advice and representation in order to pursue her rights against her husband, particularly one who is rich, litigious or obstructive or whose financial circumstances are complex or unclear?”

In my judgment, in an appropriate case, maintenance pending suit provides a partial answer and, for the reasons I have now given, I made the order in the present case. I add that, since I made the order, the House of Lords has given its judgment in White v White [2000] 3 WLR 1571. That did not, of course, impact at all on my decision which I had reached and announced several days earlier, nor on my reasons for it. However, Lord Nicholls of Birkenhead stressed, in relation to the substantive outcome, that there is no place for discrimination between husband and wife and their respective roles. In my view, that substantive approach may be illusory if a wife is unable to vindicate it due to the difference in their roles, and its discriminatory effect upon their income and capital and upon a wife’s ability to match the legal representation of her husband. The changing climate for the outcome of matrimonial litigation, which the House of Lords has clearly heralded, further fortifies me in my view as to financing its interlocutory stages”

92.I respectfully agree with that statement, and it goes without saying that the concepts of fairness and rejection of discrimination between husband and wife and their respective roles so underpinning the White v White line of cases from UK have since been fully endorsed by our courts, and not just in the exercise of s 7 of MPPO for the outcome of final ancillary relief litigation but also at its interlocutory stages such as maintenance pending suit applications as in the present case.

93.Accordingly, the Husband’s suggested HK$300,000 certainly appears to me wholly inadequate, and I find that the Wife’s figures more accurate and realistic, and I propose to round them down to a total sum of HK$1.2 million payable by 9 equal monthly instalments at HK$133,333 each subject to future review where necessary.    

Conclusion

94.In the premises and accordingly I order that the Husband do pay to the Wife a monthly sum of HK$233,333 as maintenance pending suit for her and the 2 children of the family and inclusive of her costs provision for 9 months, which sum is to be dated back to 1^st May 2015 and until further order.

95.For the question of costs, given the outcome of my decision including the costs provision, I propose to reserve it pending the final determination of the ancillary relief application or at some later stage where appropriate.

96.Last but not least, I wish to express my gratitude to both Ms Yip and Mr Chan for their most valuation assistance rendered throughout the hearing.

Ms Anita Yip SC instructed by M/S Chaine, Chow & Barbara Hung for the Petitioner.

Mr Jeremy Chan instructed by M/S Wat & Co for the Respondent.