Mcyc also known as Msk v. Sack Formerly Known As Sack

FCMC 6505 /2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 6505 OF 2016

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Coram : Her Honour Judge Grace Chan in Chambers (not open to public)

Date of hearing : 15 March 2017

Date of judgment : 5 May 2017

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JUDGMENT
(Maintenance pending suit)

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Introduction

1.The petitioner (“wife”) in this case takes out a summons dated 19 December 2016 to seek maintenance pending suit (“MPS”) from the respondent (“husband”).  It is her latest proposal that the husband do provide her a sum of $35,000 per month to cover her housing and living expenses, to be back-dated from the date of her summons. Through her solicitor, Mr Lo, she confirms that she withdraws para (1) and (2) of her summons, ie request for accommodation expenses to be payable by the husband to the 3^rd party, such as her cousin or her future landlord.

2.According to her, she was (and still is) a housewife financially dependent on the husband who had afforded her with an extravagant life style and pampered her with expensive/luxurious gifts such as Hermes bags and accessories during their marriage. But after a heated argument with him on 9 April 2016, she was forced out of the matrimonial home at Cloud View Road. Since then, he cut all the supplementary credit cards given to her and gave her a mere sum of $12,000 per month for her all-inclusive use. As a result, she had to squatter at her cousin’s place or to “flee” to Thailand where lower living costs are possible. However, her wish is to rent a service apartment (where basic furniture and utensils are provided) in Hong Kong for the time being, because that would save her the resources and trouble of decorating and buying new furniture.  The rental, she says, would cost her at least $15,000 per month. Her other living expenses would at least need $20,000. Therefore, she seeks $35,000 per month from the husband.

3.In response, the respondent rejects her allegation that the living standard of the parties during the marriage is extravagant. In addition, he says that he does not have the ability to pay the sum requested by her. He has a mere income of $44,000 per month with 2 children of the family to support and feed. He used to rely on the financial contribution from his mother who has now made it clear that she is not going to subsidy him in paying any MPS to the wife. He further alleges that the wife has breached the duty of full and frank disclosure by concealing that she is trading in a honey jelly business and selling the luxurious handbags that the husband had gifted her in the recent 2 – 3 years.  His latest proposal, made through his counsel, Ms A Choy, is that he would pay her $22,000 per month to cover her accommodation and daily living expenses in the interim period.

4.The issues of this hearing are thus these:

(1) What is the living standard during their marriage;

(2) What is the financial ability/means of the husband, including any financial assistance from 3^rd party;

(3) The reasonable needs of the wife;

(4) Whether the wife has concealed her financial means.

Background

5.The parties are now in their mid-30s. They were married to each other in 2003 at a rather young age of 23.  At that time, the wife was a part-time model but has ceased working since the marriage. The husband, after returning to Hong Kong from his study in Canada, started to work in his father’s company (“W Ltd”) specialising in electronic transformers. It is fair to say that he worked his way up from a sales assistant to his present position as a director of W Ltd, though he was terminated twice by his father in 2004 and 2007 allegedly due to argument originated solely from the wife.

6.Two children, a daughter and a son, were born within their wedlock in 2004 and 2006 respectively (now aged 13 and 11).

7.From what the parties have revealed to the social investigating officer of this case, the marital relationship since their marriage cannot be described as good. Each accuses of the other of being moody and bad temper, leading to arguments from time to time. On top of that, the husband complains that the wife spent too much time in taking care of abandoned cats and dogs on the street. 

8.On 9 April 2016, the parties separated after a heated argument. By then, the marriage lasted for 13 years. Since the separation, the husband continues to stay with the children at the matrimonial home. The wife, however, lived at different places, first at her cousin’s place until January 2017 when she went to stay in Thailand for a while.  By the time of this hearing, she has returned to Hong Kong and is staying in a rented and tiny studio flat in Stanley.

9.By a consent order dated 22 December 2016, joint custody of the children is granted to the parties. The husband has care and control of the children. The wife enjoys reasonable access.

10.Historically, the husband paid $12,000 per month to the wife by bank transfer for her own spending. Since her MPS summons, he has given an undertaking to pay her interim MPS in the sum of $22,000 per month (inclusive of the usual payment of $12,000) commencing from 5 January 2017 until further order of this court (“Interim MPS Undertaking”).

Applicable legal principles

11.The power for this court to make a maintenance pending suit for a spouse is set out in section 3 of the Matrimonial Proceedings and Property Ordinance.

12.The governing principles in any MPS application are succinctly explained by Hartmann JA (as he then was) in HJFG v KCY [2012] 1HKLRD 95 as follows:

“34. By definition, therefore, maintenance pending suit is restricted to payments which constitute ‘maintenance’, which are reasonable in the circumstances and which will endure for no longer than it takes to determine the divorce litigation.  ‘Maintenance’ is a broad concept.  I do not seek to define its exact meaning but it seems to me that it must be restricted to those payments necessary to meet the recurringcosts of living at whatever standard of living is appropriate. That being the case, no matter how great the wealth of the parties and how unevenly distributed that wealth may be at the time an application for interim maintenance is made, the court has no jurisdiction to make orders which for all practical purposes result in a form of pre-trial capital re-balancing.  In the present case, the judge recognised the long-established approach of looking to the “immediate and reasonable needs” of the wife and son.

35. As to the amount of maintenance pending suit that may be paid, the Ordinance provides only that it must be ‘reasonable’, that is, having regard to the circumstances of the case, that it must be fair.

36. An important factor in determining fairness is a consideration of the marital standard of living.  In this regard, each case must be considered according to its own circumstances.  It is not simply to be assumed that great wealth equates to great extravagance.  Some married couples who enjoy great wealth spend with comparative modesty and with a discipline born of discretion, others enjoy consumption on a grand scale.

37. The principles that have emerged over time to guide judges in matters of interim maintenance have been fashioned in the main to ensure fairness.  This is well illustrated in the judgment of Nicholas Mostyn QC, sitting then as a deputy High Court judge, in TL v ML and Others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263, at 1289, in which, having looked at earlier authorities, he derived the following principles that speak specifically to fairness or are based on the need to ensure it.  For present purposes, it is sufficient to cite the relevant principles without citing the judge’s reference to the source of those principles:

i. The sole criterion to be applied in determining the application is ‘reasonableness’, whichis synonymous with ‘fairness’.

ii. A very important factor in determining fairness is the marital standard of living.  This is not to say that the exercise is merely to replicate that standard.

iii. 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.

iv. 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.

38. Finally, it is to be noted that in applications for interim maintenance, when the amount to be paid is for a limited period only and not all of the evidence is necessarily before the court, it is not appropriate, nor indeed in most cases possible, for the court to conduct a detailed investigation into the finances of the parties.  While, in order to determine what is or is not reasonable, some analysis is always required, that analysis can be conducted on a ‘broad brush’ basis.”

The living standard

13.Mr Lo for the wife submits that the parties enjoyed a comfortable and extravagant lifestyle during their marriage. The husband has a particular interest in sports cars, having once owned a Maserati, a Porsche GT3 and a BMW M3, and currently still owns 3 sports cars (a Nissan GTR, a Mercedez Benz AMG A45 and a Honda Civic type R). On the part of the wife, she likes to use luxurious fashion items such as Hermes handbags and accessories. She used to drive a Porsche on daily basis as well. She enjoyed multiple memberships to spa, cosmetic treatment centres and gyms. She visited professional hair stylists and dentists for teeth whitening and orthodontic treatment. Her own monthly expenses before separation amounted to some $61,000.

14.The husband, through his counsel, accepts that at the MPS stage, the parties’ pre-separation living standard is a relevant factor, but points out that it is only for about 3 years out of their 13-years of marriage that they did enjoy a “relatively higher” living standard.[1]  While the husband does not dispute that he had gifted the wife with numerous expensive bags and accessories, he points out that it was done only in the recent 2 years or so in an attempt to salvage their falling marriage, and thus it is principally wrong for the wife to rely on these recent purchases as a benchmark of their marital living standard.  Besides, he stresses that these gifts were made possible only because he had taken away his mother’s money without her knowledge and consent.

15.To give a glimpse of the luxurious items gifted by the husband to the wife since 2014, one may refer to the husband’s Form E (dated 11 July 2016) where he sets out the luxurious items given away to her in the last 20 months.[2] Such items are said to worth in the total sum of $1,156,000, including Hermes bags and accessories, diamond rings and necklaces, Patek Philip and Rolex watches.

16.Notably, there is a dispute between the parties as to whether this court should adopt the living standard since 2014 as the benchmark in this MPS application. I hold the following preliminary view.

17.In considering the marital living standard, this court should form an overall impression of the living standard upon considering all the circumstances, rather than focusing on a particular aspect of lifestyle or a particular act(s).

18.In this case, it does not occur to me that the wife seriously disputes that the husband started to gift her with luxurious items since about 2014.  One must take note that apart from the receipt of these luxurious gifts, the wife has not alleged that there were any changes in other aspects of the living standard of the family. They continued to engage only 1 maid to serve a household of 4 people. The children continued (and still now) to study in government-subsidized schools, but not the more expensive international or private schools. The couple did not own any property, but all along lived in various properties/apartments provided by the husband’s parents, though such properties/apartments were of over 1,000 sq feet and situate mainly in reputable residential areas on the Hong Kong Island. For example, they had once stayed in the South Bay Towers in the Southern District and the Merton in the Kennedy Town, before they moved to the current matrimonial home in Cloud View Road. The area of the matrimonial home is over 1,000 sq feet with current rental at $45,500 per month which is paid by W Ltd.

19.It is not disputed that the wife once drove a Porsche, but it is also her case that the car was recently sold at a very modest sum of $30,000 only.

20.The couple enjoyed membership of spa and gyms, but not that of reputable clubs such as the Hong Kong Jockey Club or Hong Kong Country Club.

21.Upon considering the evidence in totality, I reject the wife’s allegation that the living standard during marriage was very high and extravagant.  My overall impression is that the family enjoyed a comfortable living standard of middle class in Hong Kong.  

The husband’s income and expenses

22.The husband avers that he has no ability to pay the amount requested by the wife, as he has 2 children of the family to support. According to his Form E (dated 11 July 2016), his household expenses are as follows:

(1)	General expenses:	$22,550
(2)	Personal expenses:	$17,653 (excluding interim MPS)
(3)	Children expenses:	$17,193
		$57,396

23.The children’s expenses, including their share of general expenses, are about $32,226 per month ($22,550 x 2/3 + $17,193), whereas the husband’s own monthly expenses (including his share of general expenses) are about $25,170 per month.

24.In the same Form E, he says that he is a director of W Ltd with a modest salary of $44,000 per month.  As said, the rental of the matrimonial home now in the sum of $45,500 is paid by W Ltd.  Besides, he owns 5% of the shares of W Ltd (but claims that he is merely holding the same on trust for his father). He has bank accounts at the HSBC, Hang Seng Bank and Dah Sing Bank. The majority cash is kept in a joint account with Hang Seng Bank held jointly with his mother (“HS Joint Account”). More will be said about this HS Joint Account later in this judgment.

25.The wife does not seem to accept that the husband is a mere trustee of the said 5% shares of W Ltd. She points out that the trust allegation comes out from the husband for the first time in his reply (dated 2 February 2017) to the wife’s questionnaire. In that questionnaire, the wife asks him to explain the basis of valuing his 5% shares of W Ltd at $185,995.40 in his Form E. He replies that the question on valuation is “irrelevant” because the shares were held by him on trust for his father.[3]

26.At this preliminary stage, it is pre-mature for this court to make any finding on the alleged trust arrangement of the 5% shareholding of W Ltd.  However, I do take note that initially in his Form E, the husband has not alleged that he was holding such shares of W Ltd on trust for his father. This allegation only surfaces after the wife has taken out her application for MPS. And to support his trust allegation, the husband has filed an affirmation of the accountant of W Ltd, but not that of his father who is alleged to be the actual beneficial owner of these shares.

27.It is trite to say that if the husband and/or his father is/are adamant in pursuing that the husband is a mere trustee of the 5% shares of W Ltd, the father, very likely, needs to be brought into these proceedings for a trial on the preliminary issue of the beneficial ownership of such shares in accordance with the principles and procedures set out in TL v ML & Other (Ancillary Relief: Claim Against Assets of Extended Family) [2006] 1 FLR 1263 and Leung Wing Yi Asther v Kwok Yu Wah & others (2015) 18 HKCFAR 605.  

28.For the purpose of this application, it is sufficient for me to say that the husband has received double pay or bonus for the years of 2015 ($91,000) and 2016 ($135,000).[4] When that added, his average income for the year of 2016 is not as low as $44,000 per month as claimed in his Form E, but should be revised up to $55,250 per month (excluding the rental of the matrimonial home covered by W Ltd for him).

Financial assistance from his mother  

29.On the face of his Form E, the husband’s monthly income is not able to meet his and the children’s total monthly expenses, let alone paying the wife any amount of MPS.  Quite obviously, the financial constraint portrayed by him does not sit well with his open offer of paying $22,000 per month to the wife as her MPS. This brings into play the issue of any financial assistance to him from a third party.

30.It cannot be disputed that the mother of the husband has financially treated him well, if not spoiled. She gifts him with expensive items from time to time.  According to his mother (who has prepared an affirmation for the purpose of this application), between 2014 and 2016 alone, she has allegedly used almost $1.85 million to buy luxurious cars and watches to the husband, including a Mercedes Benz car ($773,679), a Honda car ($534,833) and 2 Patek Philip watches ($537,900).[5]

31.It is equally indisputable that throughout their marriage, the husband (and thus the wife and their children) has relied on the financial support of his mother from time to time. Purely on his own allegation, he received $10 million from his mother between 2007 and 2010 to pay up his loss in stock margin investment. Over a period of 17 months starting from 2010 (when the husband did not have housing allowances provided by W Ltd yet), his mother paid the rent of his matrimonial home in the total sum of about $300,000.

32.I take note that it is the husband’s allegation that the above financial provisions are mainly loans from his mother that he needs to repay. For the purpose of this application, I do not have to make a final finding on whether these are bona fide loans that really need to be repaid. That, I believe, would be determined by the trial judge in the ancillary relief trial when oral evidence is received and tested.  I only need to reiterate the general legal principles that in any MPS application, the ability to borrow on the part of the paying party can be regarded as one of his/her financial resources.

33.I have not lost sight of the husband’s and his mother’s allegation that she is no longer prepared to provide any financial provision to him in order to enable him to pay any MPS to the wife.  Yet, his mother has repeatedly made it clear that she would continue to provide him with financial assistance for the benefit of the children of the family.  In her affirmation dated 18 January 2017, his mother has this to say:

“40. Thus, when [the husband] explained to me that [the wife] was applying for maintenance pending suit from him, seeking a monthly sum that [the husband], as someone who only has a monthly salary of $44,000, cannot afford, I immediately told [the husband] not to expect that I would lend him any money at all to allow him to pay the sum.

41. I have also made it clear to [the husband] that while I do not mind lending money to him for even occasionally gifting sums to him so that he could pay for the expense incurred by my grandchildren, I would never give [the husband] any money by way of loan or gift if I found out that the sum was spent towards supporting [the wife’s] living.

42. As I have stated above, I am a housewife with no earning ability, nor do I have unlimited financial resources. While I do not mind spending money on my grandchildren out of my love for them, I have every reason not to allow [the wife] to be eventually using my money…” (my emphasis added)

34.It does become very clear that even on the husband’s own case, it is more likely than not that at least for this interim period, the children’s expenses stated at § § [22] – [23] above would be taken care of by his mother, if needs be.  The rental of his accommodation is covered by W Ltd.  His average monthly income in 2016 is about $55,250 and thus he still has about $30,000 available for the wife’s MPS, even after taking into account his own monthly expenses stated in his Form E (about $25,170).

HS Joint Account

35.As said above, the HS Joint Account is in the joint names of the husband and his mother.  As at the date of this hearing, this account maintains a balance of about $2.24 million.[6]

36.The wife submits that the HS Joint Account is a solid source of the husband’s financial means to pay for her MPS. According to her, the money in this account comes from 2 major gifts of cash advanced by the husband’s father to the husband, and hence is the husband’s money:

(1) A sum of $5.8 million (“Fund”) gifted by his father to the husband for the purchase of a matrimonial home way back in 2013, as the couple had by then married for 10 years; and

(2) A sum of $4 million gifted by the father to the husband between January and April in 2016 (“Gift”).

37.There cannot be any dispute that the husband has received the Gift from his father, but he insists that he has to keep the money in order to repay his mother for various sums of withdrawals that he has taken away secretly without her knowledge from the HS Joint Account.

38.By way of background, the Fund was transferred in and out of a number of back accounts in a convoluted way as follows:

(1) The money was first put into a tri-parte bank account (of the wife, the husband and his mother) with Hang Seng Bank on 9 August 2013;

(2) But later on the same day, the Fund (or to be exact a sum of $5,796,000) was transferred to the HS Joint Account;

(3) A month later on 9 September 2013, a sum of $ 5 million out of the Fund was transferred to a Dah Sing Bank account jointly held by the husband and his mother (“Dah Sing Joint Account”) for higher interest rate;

(4) On 10 June 2014, the husband transferred $5 million (plus the interest) from Dah Sing Joint Account back to HS Joint Account.

39.The wife says that since money was transferred back from the Dah Sing Joint Account to the HS Joint Account, the husband has used such money freely and at his own discretion, including for the purpose of purchasing various luxurious items gifted to her since 2014.

40.The husband, however, objects to the wife’s version of the Fund and the HS Joint Account. His case can be summarised broadly in the following:

(1) The Fund was actually a gift from his father to his mother. He was asked by the father to “help manage her finances on her behalf as she aged”. But since the wife was also present on that occasion and in order to make her feel involved as a family, the Fund was paid into the said tri-parte bank account (of the couple and the husband’s mother) on 9 August 2013. On 2^nd thought later that day, his parents considered that the wife was not trustworthy, hence the Fund was transferred into the HS Joint Account;[7]

(2) On 6 September 2013, his mother deposited $500,000 into the HS Joint Account on 6 September 2013;[8]

(3) On his mother’s instruction, a sum of about $5 million out of the Fund was later transferred to the Dah Sing Joint Account for higher fixed deposit interest yield on 9 September 2013. On 10 June 2014, the husband, secretly and without his mother’s knowledge, uplifted the fixed deposit with Dah Sing Bank and transferred $5,051,490 from Dah Sing Bank into the HS Joint Account, leaving only $100 left in Dah Sing Bank;

(4) On 10 March 2014, his mother put another $1 million into Dah Sing Joint Account to create another fixed deposit.[9] However, the husband, again secretly and without her knowledge, uplifted this fixed deposit and transferred the money into the HS Joint Account on 24 March 2013;

(5) Apart from the above sums of money, his father had gifted his mother a total sum of $3.83 million between October 2013 and July 2014, which was paid into the HS Joint Account;[10]

(6) Hence the total amount of money belonging to his mother that were deposited into the HS Joint Account between August 2013 and July 2014 is about $11.18 million (“Total Amount”);[11]

(7) The husband has, since September 2013, started to operate the HS Joint Account without his mother’s knowledge/consent and withdraw the Total Amount for various purposes, such as investing in stock, paying for family expenses, buying luxurious items for the wife. Besides, a total sum of about $1,846,412 out of the Total Amount was withdrawn with his mother’s consent to buy luxury items such as cars and watches for the husband;

(8) The shortfall that he had withdrawn/spent without his mother’s consent is thus over $9.3 million, which he needs to repay gradually.  And in order to do so, he has specifically done these. First, he sold his stock on 30 March 2016 and put back about $1.4 million into the HS Joint Account. Second, he has paid back another $3 million out of the Gift in the HS Joint Account. Third, he transferred another $800,000 out of the Gift to his mother as partial repayment of her loan on 7 January 2016.

41.Given the nature of MPS which aims to provide some interim and temporary financial provision for a receiving spouse, it is not necessary for me to make a final determination on beneficial ownership of the money in the HS Joint Account at this stage.  More importantly, I am of the view that my finding in §§[29] – [34] is quite sufficient to dispose of this application.

42.That said, I still wish to make the following observation:

(1) On the husband’s own case, he has withdrawn/taken away from the HS Joint Account without the consent of his mother some $9.3 million within a period of about 3 years between 2013 and 2016, of which, and at the most, $1,156,000 was spent on gifts to the wife.[12] That would mean that over $8 million was spent/used by the husband within 3 years, to which he had not accounted for in details or in breakdown;

(2) On the other hand, the spending of over $8 million within 3 years reflects, to a certain extent, the living standard of the parties;

(3) The husband alleged that a total sum of $3.4 million ($1.4 million + $3 million) was paid back or into the HS Joint Account in order to repay the money that he has withdrawn without his mother’s consent. Yet, it remains unexplained why the balance of the HS Joint Account now stands only at $2.24 million. There is a shortfall of about $1 million;

(4) The fact that at least a shortfall of $1 million is withdrawn and used does not sit well with the husband’s own allegation that he has to set aside and keep the money in the HS Joint Account for the purpose of repaying his mother, and hence no extra financial means to pay the wife her requested amount of MPS.

43.With the above observation, I am sure that the husband will have a lot to explain in the ancillary relief trial if the parties fail to settle in the financial dispute resolution (FDR) hearing. Until further explanation is proffered by the husband, it does seem, prima facie, that the money in this HS Joint Account has all along been freely used by him, and that there has not been any urgent need to repay the alleged loan(s) to his mother at this stage.  It also remains a fact that he has received the Gift (of which about $3 million was kept in the HS Joint Account) from his father.  In all circumstances and for the purpose of this application, I am inclined to treat the money in the HS Joint Account as a financial resources of the husband in this interim period.

Reasonable needs of the wife

44.Ms Choy, counsel for the husband, accuses the wife of giving at least 3 inconsistent tables on her expenses, showing her failure to give a consistent MPS figure. I do not accept this line of argument. True as it may be that the wife has given 3 tables on her expenses, she has made it clear in her affirmations that the said 3 tables of expenses represent her expenses at different stages, namely at the time during the marriage when she stayed at the matrimonial home; at the time when she had to temporarily squatter at her cousin’s place; and after she has left her cousin’s place.

45.Ms Choy also comments on the wife’s renting 2 apartments at the same time, one being in Thailand and the other being in Stanley, Hong Kong. This proves, Ms Choy submits, that the wife does not really have any cash flow problem, especially after the Interim MPS Undertaking made on 22 December 2016. Ms Choy goes on to submit that if the wife really has cash flow problem, it is self-induced and as a result of her irresponsible financial management.  

46.With respect to Ms Choy, I think she has overlooked the fact that the wife is under legal aid. Her solicitor, Mr Lo, submits that the amount received by her under the Interim MPS Undertaking is subject to the first charge of the Director of Legal Aid, in the result of which $4,800 per month is deducted and kept by the Director of Legal Aid. The wife effectually receives only $16,800 per month since the Interim MPS Undertaking, which is quite insufficient to cover her needs comparable to the one enjoyed by her during the marriage. In any event, the wife has clarified in her 2^nd affirmation dated 24 February 2017 that she is now living in Hong Kong and has no plan to continue living in Thailand. I am thus unable to accept Ms Choy’s submission on this point.

47.On the other hand, the husband’s own Form E alleges that his own total expenses amounts to about $25,170 per month (excluding accommodation expenses).  In my view, he has adopted a double standard to his own and the wife’s expenses. I will give 2 brief examples by way of illustration here. He avers that the wife’s reasonable transport expenses should be $30 per day (or $900 per month) while he himself enjoys the luxury of 2 or 3 brand new cars with monthly spending of $9,100 per month. He further avers that the wife’s reasonable holiday expenses should be $800 per month, but his claimed personal holiday expenses are $10,000 per month.

48.In all fairness to the wife, I am of the view that her reasonable personal expenses should be at least be comparable to the claimed personal expenses of the husband.

49.The question of the wife’s housing needs warrants some analysis. As a starting point, I do not think that the parties have any serious dispute that a serviced apartment should be rented at this stage. The husband, through his solicitors, has made some suggestion to the wife.[13] The wife in reply has indicated that she may consider the deluxe unit at YesinSpace in Tai Kok Tsui, as it provides basic kitchenette for her to cook so that she needs not eat out each time.[14]  Such deluxe unit costs $14,800 - $20,800 per month. However, the husband is of the view that a single studio (without kitchenette) which costs $5,000 - $9,500 per month is sufficient.

50.The legal authority clearly states that “fairness” is the benchmark in any MPS application. In such circumstances, it is not fair for the husband to argue that the wife’s reasonable needs at this interim stage, including her housing needs, should be as low as $22,000 per month, while his own general and personal expenses per month (excluding rental expenses) is said to be $25,170 per month. 

51.Having said so, this must be balanced against the fact that the parties are now living in 2 separate households and thus both have the need to adjust their daily expenses. 

52.Taken all the circumstances of this case into account, I am of the view that it is more reasonable for the wife to rent a cheaper executive room, also provided with kitchenette, at the said YesinSpace or similar serviced apartment. The monthly rental is at least $12,500.  By adopting a broad brush approach, I am of the further view that the reasonable accommodation and daily needs of the wife for this interim period is $30,000 per month.

53.I remind both parties that any over-provision or under-provision at the stage of the MPS application can be adjusted at the final hearing of the ancillary relief (See: F v F (Ancillary Relief: Substantial Assets) [1996] 2 FCR 397).

Non-disclosure by the wife

54.Ms Choy, counsel for the husband, is very adamant in submitting that the wife has been guilty of non-disclosure in 2 aspects.

55.First, Ms Choy says that the wife has refused to disclose her involvement in the business of JN selling honey products, which was found out by the husband from her social media platform. On her Facebook or Instagram, she posted about JN’s “new product” and described the grand opening of JN as “our” JN royal bee jelly grand opening. She also posted a photo of the logistic workers of JN and wrote “comrades, (you) having been working hard” (同志們, 辛苦了).[15] In another post, she even wrote that it was an honour to become a sales agent of JN in Hong Kong.[16]

56.In response, the wife explains that in 2013, she had the idea of becoming a distributor of JN’s honey jelly products in Hong Kong and sought the financial assistance from the husband, who rejected the idea. She did not pursue the matters further, but continued to use the honey products as well as recommended the same to her friends. When the parties separated, she has continued to post pictures onto her social media platforms to create an image that she was living her life well. She does not want to show any weakness in her social circle, or else she would be humiliated.

57.To some extent, I accept that what the wife has written/posted on her Facebook and Instagram about the business of JN is something that calls for further explanation. However, at this stage, I am not prepared to convict her for non-disclosure to the extent as submitted by the counsel for the husband, because her bank statements disclosed so far, whether of pre-separation and post-separation period, does not readily support that she has the funding to be a distributor of the honey products.

58.Yet, in saying so and without binding on the trial judge of the ancillary relief matters, I do not mean to conclude that in the years to come pending dissolution of their marriage, the wife should continue to be a housewife without work, though she may need some time to pick up and re-establish herself.

59.The 2^nd aspect of the wife’s non-disclosure submitted by Ms Choy relates to the various luxurious and expensive handbags that were gifted by the husband to her since 2014. Counsel says that the wife has (i) grossly underestimated the value of these luxury items in her Form E, [17] and (ii) refused to disclose the actual quantity and details of these luxury items that are in her possession and/or failed to disclose that she has sold some of such items with details. Counsel has set out in her written submission (at §59) those items that the wife has initially failed to disclose but had eventually disclosed in her belated 2^nd affirmation (dated 24 February 2017) and her reply (dated 23 February 2017) to the husband’s questionnaire. The wife belatedly reveals that she has sold 3 Hermes bags between April and June 2016 for the total sum of $116,000, which she has failed to mention in her Form E (dated 17 October 2016). Hence, counsel for the husband concludes that the wife is deliberately concealing her assets, a factor which this court should not lose sight of (See: W v W (Financial Provision: Form E) [2004] 1 FLR 494).

60.I have the following observation/comment to the husband’s line of submission:

(1) It does not occur to me that the husband is seriously disputing that these luxury items are part and partial of the wife’s daily items/wardrobe, at least since 2014.  I am not inclined to say that they should be sold for the purpose of supporting the wife in this interim period;

(2) Some of these items, such as high heels, are estimated by the husband to worth $3,000 only. In such circumstances, the wife should not be expected to list out all these lesser valued items of her daily wardrobe in her Form E. If the husband’s logic is correct, one may ask these rhetorical questions: does a smart phone, which is well-known to worth a few thousand dollars and is indisputably quite indispensable nowadays, needs to be disclosed in the Form E? Does failure to disclose his/her smart phone makes one guilty of non-disclosure?

(3) The dispute over the current value of the wife’s luxury items can and should be dealt with by way of negotiation/agreement, in lieu of which a single joint expert can be appointed to provide a valuation report. It is quite erroneous at this interim stage to equate any alleged undervaluation of these items by the wife to wilful non-disclosure on her part.

61.In the premises, I will reject the husband’s argument. I am not prepared to jump to a conclusion at this interlocutory stage that there is wilful non-disclosure on the part of the wife to the extent advanced by the husband.

Backdating

62.The wife initially asks me to backdate her MPS to the date of the petition. However, her latest position is to backdate to the date of her summons (19 December 2016).

63.It is conceded by the wife that she had sold 3 Hermes handbags ($116,000) and her Porsche ($30,000) in the total sum of $146,000 since the separation in April 2016. She has kept it all for herself and/or her spending. It is noted that since the separation, she continued to receive $12,000 per month from the husband, which was increased to $22,000 under the Interim MPS Undertaking since January 2017. She stayed at her cousin’s place until January 2017 when she went to stay in Thailand for lower living costs. She has moved back to Hong Kong only in late February 2017 and stayed at a cubicle of 30 sq feet in Stanley, the rental of which is $5,000. It is fair to say that she has yet to incur substantial or additional accommodation expenses probably pending the outcome of this judgment.   

64.In such circumstances, I am not persuaded that her MPS should be backdated. I reject her request.

Conclusion

65.Due to the matters aforesaid, I shall allow the MPS application of the wife in the sum of $30,000 per month.

66.Given this judgment, neither the wife’s nor the husband’s open offer is accepted by this court. Neither of them can be described as the true winner of this application. I shall thus exercise my discretion to make a costs order nisi that the costs of this application be in the cause of the ancillary relief matters.

67.I shall summarise my order as follows:

(1) the husband shall pay to the wife for her maintenance pending suit in the sum of $30,000 per month commencing from 5 May 2017 and thereafter on the 5th day of each month until further order of the court. Such payment shall be credited into the wife’s designated bank account;

(2) The costs of and occasional by this application shall be in the cause of the ancillary relief matters. This is a costs nisi which will be made absolute within 14 days from the date of this judgment unless either party applies to vary the same;

(3) The wife’s own costs shall be taxed in accordance with legal aid regulation.

68.For completeness and avoidance of doubt, the husband’s Interim MPS Undertaking given on 22 December 2016 should be discharged forthwith.

Mr C Lo of Stevenson Wong & Co (on the assignment of DLA) for the petitioner (wife)

Ms A Choy instructed by Chan Ching Man & Co for the respondent (husband)

[1] Husband’s written submission at §77.

[2] Husband’s Form E at Part 5 [21]

[3] Husband’s reply to the wife’s questionnaire dated 23/12/2016 [A/78/Q12].

[4] Husband’s reply to the wife’s questionnaire dated 23/12/2016 [A/70/Q2].

[5] [A/99/§§31-33] & [A/84-82]

[6] [B(II)/415]

[7] Husband’s 3^rd affirmation [A/119/§§48 -50]

[8] Husband’s reply (dated 2 February 2017) to the wife’s questionnaire [A/83]

[9] Husband’s reply (dated 2 February 2017) to the wife’s questionnaire [A/76]

[10] Husband’s reply (dated 2 February 2017) to the wife’s questionnaire [A/84]

[11] Husband’s reply (dated 2 February 2017) to the wife’s questionnaire [A/84]

[12] Husband’s Form E [A/21]

[13] Husband’s letter dated 9 January 2017 [B(IV)/1126-1127]

[14] Wife’s reply letter dated 19 January 2017 {B(IV)/1128-1129}

[15] [B(IV)/955]

[16] [B(IV)/956]

[17] In the wife’s Form E, she lists out about 16 items of valuable personal items, such as shoes, handbags and jewelleries. She estimates the value in the sum of about $100,500. But the husband avers in his Form E that luxury items worth $1,156,000 were gifted to the wife.