Wai Yuk Fung v. Tsui Sum
Read the full judgment text of CACV 21/1968 on BabelCite. This Court of Appeal judgment was delivered on 13 September 1968.
2. The difficulty in the case lies in the total inadequacy of the evidence of the means of the respondent. There was evidence that he is the sole proprietor of a factory producing plastic products which employs 20 odd workers. The respondent said the factory has a turnover of $30,000.- a month but that the accountant told him it was running at a loss. He said his total earnings were $480.- a month. In addition he said he collected $190.- by way of rent for two stone houses. There was evidence th
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CACV000021/1968 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CIVIL APPEAL NO.21 OF 1968 (On Appeal from N.K.S.26303 of 1968.) -----------------
----------------- Coram: Huggins, J. Date of Judgment: 13 September 1968 ----------------- JUDGMENT ----------------- Huggins J.: The appellant filed a complaint under the Separation and Maintenance Orders Ordinance alleging that the respondent had wilfully neglected to provide reasonable maintenance for her and for the dependent children of the family. She asked for maintenance for herself and for two of the six children of the marriage. She did not apply for a non-cohabitation order because it is common ground that the respondent has left her and has gone to live with another woman. The learned magistrate found that only one of the two children named was below the age of 16 and he ordered maintenance in the sum of $400.- a month for the complainant and this child. The appellant appeals on the ground that the figure of $400.- a month is inadequate. 2. The difficulty in the case lies in the total inadequacy of the evidence of the means of the respondent. There was evidence that he is the sole proprietor of a factory producing plastic products which employs 20 odd workers. The respondent said the factory has a turnover of $30,000.- a month but that the accountant told him it was running at a loss. He said his total earnings were $480.- a month. In addition he said he collected $190.- by way of rent for two stone houses. There was evidence that at one time the appellant was receiving from the respondent a sum of $260.- a month; that he paid $125.- rent for the cubicle which she occupied; and that he paid $95.- as school fees for the two youngest children. In addition he would give odd sums to the children to buy books. The respondent admitted in evidence that he had stopped paying the rent and the school fees but there was a dispute whether he had stopped paying the monthly sum of $260 as maintenance. 3. I should also mention that there was in evidence a Probation Officer's report. The learned magistrate expressly referred to Young Hay v. Wong Kit-mui(1) where Mr. Justice Briggs said at p.710:
It was no doubt with this passage in mind that the learned magistrate obtained the consent of the solicitor for the respondent and of the complainant to call for a report from a Probation Officer. If he thought that this was a course which was authorized by the words used by Mr. Justice Briggs then with respect I cannot agree. What I think the learned judge had in mind was the possibility that having seen a Probation Officer's report the parties might agree a statement therein as to the means of the husband: he expressly said that it was not proper to call for the report of a Probation Officer in cases of this nature and I do not think that he ever intended to encourage magistrates to delegate part of their function to a Probation Officer, which is the real effect of the parties' consenting to the admission of a document which is not yet in existence and which they have not seen. Thus we find in our case the Probation Officer reporting a statement by the eldest son of the marriage that the respondent should be in a position to pay $500.- a month. The learned magistrate found himself unable to make any finding as to what the defendant's actual income was but thought that $400.- a month "appeared to be within his means to pay". He was satisfied that the respondent had wilfully neglected to provide reasonable maintenance for the complainant and the child Tsui Lai-chun but made no finding as to what had in fact been paid, if anything. 4. The learned magistrate was clearly justified in finding that the respondent had not revealed his true income. It is significant that in cross-examination he suggested that he was earning only $420.- a month. Before me he had admitted that he had a source of income which was never mentioned to the learned magistrate, namely commission, although here again he did not give reliable details. 5. I am bound to interfere in this case because the learned magistrate has inadvertently awarded a lump sum for the complainant and the child. The legislature deliberately provided for separate awards to each individual because it will be necessary to know how much the complainant is to receive when the child reaches the age of 16 years. Also I think it was intentional that the legislature fixed the maximum amounts which could be ordered to be paid with reference to the week rather than to he month. In my view the sum awarded by the learned magistrate was the minimum which he could reasonably award on the information before him. In view of the fact that the respondent has now revealed another source of income I think some slight increase would not be improper. It is much to be regretted that the complainant was not assisted in the preparation of her case and that the respondent was not compelled to produce all his accounts. However, I do not think I ought to call for further evidence at this stage and doing the best that I can on the information available I allow the appeal and substitute an order that the respondent pay $90.- a week for the maintenance of the complainant and $20.- a week for the maintenance of Tsui Lai-chun until she reaches the age of 16 years. 13th September 1968. Representation: Respondent in person (1) (1967) H.K.L.R. 708 |