Mwy v. Hwm

HCMP 120/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 120 OF 2017

(ON AN INTENDED APPEAL FROM FCMC No. 9262 of 2015)

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BETWEEN

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

I. Application

1.This is the respondent husband’s renewed application for leave to appeal from the decision of Deputy District Judge A. N. Tse Ching made on 2 November 2016 ordering the husband to pay maintenance pending suit to the wife and two children of the family.  The Judge refused the husband’s application for leave to appeal on 5 January 2017. We will deal with the application on paper.

II.  Background

2.1The wife and the husband were married on 14 February 2008.  Of the two children born to the marriage, a son was born on 9 January 2009, and a daughter was born on 23 August 2012, now respectively aged 8 and 4.  The husband is a medical practitioner.  The wife has been a full-time housewife since marriage.

2.2In about mid-2015, the marital relationship went wrong.  The wife had since moved out of the former matrimonial home with the two children into a rented accommodation.

2.3On 21 July 2015, the wife petitioned for divorce.  The parties agreed by consent that both parents would have joint custody, shared care and control of the two children.  The two children now spend roughly equal time with each parent.

2.4Since the break-up of the marriage in mid-2015, the husband has provided no maintenance to the wife.  On 25 September 2015, the wife issued an application for maintenance pending suit against the husband.  In response, on 21 October 2016, the husband issued a summons asking the Court to order the wife to consent to the sale of a jointly-owned property situated at Tung Chung (‘the property’).  The husband proposed that the net proceeds of the sale be deposited into a joint bank account and each party should then be entitled to withdraw HK$20,000 per month from the account until further order of the Court.  The two summonses were heard by the Judge on the same day on 2 November 2016.

2.5Upon hearing the parties’ legal representatives, the Judge dismissed the husband’s summons and ordered the husband to pay indemnity costs to the wife.  In respect of the wife’s application, the Judge ordered the husband to provide HK$45,000 per month to be backdated to October 2015 for the wife and the two children as maintenance pending suit (HK$10,000 for the wife and HK$17,500 for each child) until further order.  The husband was also ordered to pay the costs of the wife’s summons.  To date the husband has failed to comply with the order for maintenance pending suit. 

III.  Principles

3.1Section 3 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) empowers the Court to grant maintenance pending suit for the reasonable maintenance of a spouse pending divorce.  It is a discretionary remedy.  A broad brush approach is to be adopted and it is not appropriate to conduct any detailed investigation of the financial affairs of the parties : HJFG v KCY [2012] HKLRD 95.

3.2On an appeal from a discretionary remedy, the role of the Court of Appeal is not to exercise the discretion afresh but will only interfere when the discretion was wrongly exercised, such as being contrary to principle or the judge below had wrongly taken into account irrelevant matters or ignored relevant matters.

IV.  Our view

4.1We will refuse leave as we are of the view that the husband did not show that there is any reasonable prospect of success of appeal against the Judge’s exercise of her discretion and there is no issue in the interests of justice that requires the intended appeal to be heard.

4.2In making the order, the Judge had considered the needs of the wife and the children, the financial resources of the parties, the earning of the parties and the late disclosure by the husband of his bank accounts and the non disclosure of 1) supporting documents in respect of the husband’s earnings, 2) accounts of a company of which the husband is a sole proprietor and 3) income from the husband’s insurance policy.  The Judge held that the husband has failed to give a full and frank disclosure.

4.3The husband contended that maintenance pending suit was not necessary as the property can be realized to provide a fund for the maintenance of the wife and children.  The Judge had dismissed the husband’s application to order the wife to consent to the sale of the property.  In the first place there was no jurisdiction for the Judge to make the order requested by the husband.  What is more important is that there was no appeal by the husband against that decision.  Hence this is no longer a relevant issue and the focus should be on whether the order for maintenance pending suit is a reasonable one.

4.4The husband criticised the Judge’s findings on the wife’s needs and the husband’s ability to pay maintenance.  

4.5First, the husband claimed that the wife was able to earn an income in the labour market from March to June 2015.  He said the wife has capacity to make an earning.  Whilst the parties’ earning capacity can be taken into account in an application for maintenance pending suit, judges should not do so when the circumstances are not obvious (LJ v LWHH, CACV 129/2003 at paragraphs 23-26).  The wife left school after completion of secondary school education.  She had been a full-time housewife since marriage (7 years out of the labour market).  It is true that she took up some part-time jobs after the marriage broke down earning monthly wages of around HK$6,000-$14,000; however, the wife has always been the primary carer of the two children of young age.  In the circumstances, at this stage of the proceedings, the Judge was not required to go further to examine the wife’s earning capacity.

4.6Second, the husband said that before the break-up of the marriage, he paid the wife HK$18,500 per month as the living expenses for the whole household and thus, a monthly maintenance of HK$45,000 granted by the Judge is extravagant.

4.7The Judge rejected the husband’s evidence that he only paid $18,500 when the evidence showed that since 2014, he had been paying $23,000 per month into her account. The Judge considered the husband’s own living expenses which he claimed to be $78,000 per month and in our view, rightly rejected the husband’s complaint that $45,000 is extravagant.  The wife is living with two children and a domestic helper in a rented apartment at a monthly rental of HK$14,500.  The monthly wage of the helper is about HK$4,500.  These two items add up to HK$19,000.  Hence, by ordering a monthly maintenance of HK$45,000, the Judge was granting HK$26,000 as the living cost for three persons.  We fail to see any error in this amount.

4.8The husband claimed that the wife did not have a need for maintenance because shortly before the petition for divorce (June 2015), the wife had some HK$780,000 cash in her bank account, out of which HK$505,000 came from him.  The wife said the funds had largely been used up and gave an explanation for its depletion which included the payment of legal costs of the divorce litigation. We do not see any error in the Judge’s finding in accepting the wife’s explanation.

4.9The husband criticised the Judge for ignoring his income change because he did not work in any day time part time job and only worked overnight job.  Further since he also has to look after the children, this limited his time to have part time job.  The husband was earning about HK$100,000 a month from his employment as a medical practitioner before the wife’s petition for divorce.  The husband claimed that after the wife filed the petition for divorce, his income was reduced to HK$60,000 a month and thus he was unable to pay a monthly maintenance of HK$45,000.  The Judge noted that despite repeated requests the husband did not produce his employment contract (including part time employment) and gave no explanation for the sudden reduction in salary.  The Judge also took into account the husband’s failure to give a full and frank disclosure.  In the circumstances, the Judge had rightly made an assumption about the husband’s income and his ability to pay HK$45,000 as the monthly maintenance.

4.10The husband complained that there should not be backdating of the order.  He insisted that the wife had $780,000 in her account and gave a calculation of how much money the wife should still have for her maintenance.  As pointed out earlier, the Judge had accepted the wife’s explanation on the depletion of the fund and we do not see how a repetition of this argument would assist the husband.

4.11The husband submitted that the usual costs order in maintenance pending suit application is no order as to costs.  He claimed that he had made an offer to sell the property and the wife still have funds in her possession and as such the wife should pay his costs instead.

4.12We are surprised by the boldness of this submission.  Costs order is in the discretion of the Court.  There is no such thing as a usual order in maintenance pending suit.  We fail to see how it can be said that the Judge had wrongly exercised her discretion on costs.

V.  Conclusion

5.1Accordingly, we dismiss the husband’s application for leave to appeal with costs to the wife, summarily assessed in the sum of HK$60,000 (of which $40,000 is counsel’s fee).  The wife’s own costs shall be taxed in accordance with the Legal Aid Regulations.

5.2As the intended appeal is totally without merit, pursuant to Order 59, rule 2A(8) of the Rules of High Court, we order that neither party may request reconsideration of our determination at an oral hearing.

Mr Felix Li, instructed by Tsang, Chan & Woo, assigned by Director of Legal Aid, for the petitioner

Mr Tang Leon, instructed by Patrick Mak & Tse, for the respondent