Siu Chi Ho v. Siu Wong Yuen Sai

CACV000021/1997

IN THE COURT OF APPEAL

1997, No. 21
(Civil)

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Coram: Nazareth, V.-P., Bokhary and Ching, JJ.A. in Court

Date of hearing: 25 April 1997

Date of judgment: 25 April 1997

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J U D G M E N T

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Bokhary, J.A. (giving the judgment of the court):

1. These parties were married in China in 1966.

2. In 1990, the wife presented a petition for divorce here. A decree nisi was pronounced in respect of their marriage in 1995. And that decree was made absolute on January 21 this year. The wife is now in her early 50's while the husband is in his late 50's. They have two children, both daughters: one born in 1967 and the other born in 1970.

3. An application for ancillary relief by the wife was heard before Deputy Judge Victoria Chan over two days in July last year and then over four days in October that year.

4. The judge gave her decision on December 6 last year, making an award of ancillary relief and costs in favour of the wife against the husband in these terms:

"(i) The [husband] do pay the [wife] a lump sum payment in the amount of $600,000.00 in full and final settlement of her claim for ancillary reliefs in this suit by two equal instalments as follows:-

(a) the first instalment to be paid within 30 days of the pronouncement of the Decree Absolute herein;

(b) the second instalment to be paid within 60 days of the pronouncement of the Decree Absolute herein.

The usual default clause to apply.

(ii) Upon payment by the [husband] to the [wife] of the lump sum under (1) above, the [wife's] claims for ancillary reliefs against the [husband] herein be dismissed.

(iii) Costs be to the [wife] on a party and party basis, and to be taxed if not agreed.

(iv) Certificate for Counsel."

5. With leave granted by the judge on January 14 this year, the husband now appeals to this Court against that award to the wife.

6. His notice of appeal does not say what he asks us to order in place of the award.

7. The grounds of appeal set out in his notice of appeal read:

"(1) That the trial judge had made error in laws in deciding the amount of lump sum payment;

(2) That the trial judge had not fully and justly considered the financial circumstances of the Appellant and the Respondent."

8. Appearing before us in person, the husband tells us that by that first ground, he meant no more than to raise the question of whether there was any inconsistency between anything ordered in the Hong Kong court and anything ordered in the Chinese court.

9. In the course of her judgment, the judge noted that the wife said that she had presented a petition for divorce in the Chinese court in 1972, doing so, she said, on her husband's suggestion so that things would not be awkward for her and her children by reason of his unauthorised departure from China to Hong Kong. She says that she discontinued those proceedings in China, doing so in September 1993. We have no material on which we can find any inconsistency at all between the actions of the two court systems, let alone any relevant inconsistency.

10. Reverting to the judge's judgment, she said that the material before her relating to the husband's financial position was plainly incomplete; that he had been evasive and unconvincing in his oral evidence; and that she had no alternative but to take a broad approach when making an award to the wife.

11. It was on that basis that she made the award which we have just mentioned.

12. As it appears to us, the judge did the best she could with what material she had and made no error which enables us to interfere with her order.

13. Indeed, when he addressed us, the husband did not quarrel with the order beyond asking for five years to pay by instalments the amount which he had been ordered to pay by way of lump sum. The wife's counsel was unable to obtain instructions to agree to that or any other variation. And there is no material which would justify this Court in imposing any variation.

14. In those circumstances, this appeal must be - and is - dismissed.

Representation:

SIU Chi Ho, appellant husband in person

Miss Anita Yip (instructed by M/s Yolanda Fan & Co) for the respondent wife