Qmy v. Gss
Read the full judgment text of FCMP 147/2012 on BabelCite. This FCMP judgment was delivered on 17 July 2020 before His Honour Judge I Wong.
Child maintenance – Guardianship of Minors Ordinance – Issue estoppel – Financial resources – Carer's allowance – Backdating – Maintenance order – Jurisdictional dispute – Mainland proceedings – Property dispositions – Earning capacity – Best interests of child – Lump sum order – Periodical payments – Costs. Mother applied for maintenance for daughter G born out of wedlock. Father challenged jurisdiction in Hong Kong and Mainland courts. Court of Final Appeal confirmed Hong Kong jurisdiction. Court held Mainland Maintenance Order did not create issue estoppel barring further claim. Father's financial resources assessed including disposed properties and joint accounts. Mother's financial resources assessed including loans from sister. Court awarded carer's allowance to mother. Maintenance backdated to date of application. Father ordered to pay 60% of G's needs. Lump sum and periodical payments ordered.
Legal issues: Issue Estoppel · Father's Financial Resources · Mother's Financial Resources · G's Financial Needs · Carer's Allowance · Backdating · Amount Payable
Outcome: Mother's application granted; Father ordered to pay lump sum and periodical maintenance.
Cited by 5 cases · Cites 9 cases
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FCMP 147/2012 [2020] HKFC 161 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NUMBER 147 OF 2012 ________________________
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________________________ J U D G M E N T ________________________ 1.This is a trial on the mother’s application against the father for financial provisions for the benefit of their daughter, who was born out of wedlock, pursuant to section 10(2) of the Guardianship of Minors Ordinance, Cap 13 (“the Ordinance”). 2.In this judgment I shall, for ease of reference, refer to the applicant and the respondent as “the mother” and “the father”. I shall refer to the daughter as “G”. Parties Background 3.The mother is now 47 years old. She was born and grew up in the Mainland and virtually has had no connection with Hong Kong. 4.The father, now 56 years old, is a Hong Kong permanent resident. At the material times the father was working in Guangzhou as the Regional Director for South China of a Hong Kong listed company. 5.The mother first met the father in the Mainland through work in about 1997. They developed an intimate relationship in about 2000 or 2001 despite the fact that the father was already married and had a family of 2 children in Hong Kong. 6.In October 2001, with the financial support of the father, the mother went to the Switzerland for a one-year diploma course. Upon completion of her studies in August 2002, the mother returned to the Mainland and worked in the same company of the father. 7.In about 2006, the mother got pregnant. They decided to keep G, after previously having had several abortions in respect of which the father admitted having accompanied the mother for the operations. The father paid for the mother to come to Hong Kong to give birth to G in August 2007. 8.In October 2007, the mother brought G back to Guangzhou and two of them had been living there until August 2017 when the mother and the daughter emigrated to Toronto, Canada. At the time of the commencement of the proceedings, G was 5 ½ years old. She is now almost 13. 9.In April or May 2008 when G was about 8 months old, the mother resigned from her job. She has since assumed the role of a full-time mother and has not been in any gainful employment. 10.The parties’ relationship took a turn for the worst when it was made known to the father’s wife. They eventually broke up in August 2008. 11.In 2012, the mother applied to emigrate to Canada with G for which she had to pay CAD 120,000 into certain Canadian investments. Her application was successful and accordingly, she and G relocated to Toronto in August 2017. The mother therefore had to fly all the way from Ontario for the purpose of attending this trial. Due to the restriction imposed upon her as an immigrant, the mother was not able to leave Canada from August to November 2019 so this case had to be part-heard with 6 months’ apart. Unfortunately, the proceedings further went into quandary due to the outbreak of the COVID-19. Procedural Background 12.The mother’s application was taken out on 12 July 2012. Regrettably it has taken a detour of nearly 5 years for this case to come to trial. This was due to the father’s challenge on this court’s jurisdiction to deal with the application. The father took the view that courts in Hong Kong had no jurisdiction to hear the mother’s claim as G was not ordinarily resident or physically present in Hong Kong and in any event, the People’s Court of Siming District in Xiamen City (廈門市思明區人民法院) of the Mainland (“the Siming Court”) should be the more appropriate forum to deal with the claim. The challenge took its full course to go all the way to the Court of Final Appeal which ultimately determined in favour of the mother. 13.As things turned out, the father has been determined to fight on all possible fronts he could and, for that matter, at all costs. 14.In order to put the mother’s claim and the father’s defence in proper context, it is useful to summarise the relevant procedural background. 15.On 6 September 2012, the father commenced a separate set of proceedings in the Siming Court seeking the custody of G as well as payment of maintenance by the mother for G. 16.On 24 September 2012, the father applied to have the present proceedings stayed on the ground of forum non conveniens in favour of the Siming Court. 17.On 21 January 2013, the Siming Court dismissed the father’s claim for custody and maintenance. 18.On 21 February 2013, in addition to his application for stay, the father applied to challenge Hong Kong’s jurisdiction on the ground that G was not ordinarily resident or physically present in Hong Kong. 19.On 3 March 2013, the father appealed to the Intermediate People’s Court of Xiamen against the judgment of the Siming Court but his appeal was rejected on 28 October 2013. 20.On 27 May 2013, a judgment by myself was handed down dismissing the father’s challenge on the jurisdictional point and on forum non conveniens: see QMY v GSS (Forum: Maintenance for Child under GMO) [2013] HKFLR 336. 21.Meanwhile, on 28 November 2013, the father commenced yet another claim concerning the custody and maintenance of G in another court in the Tianhe District of Guangzhou (“the Tianhe Court”). 22.On 18 March 2014, the Tianhe Court dismissed the father’s claim for custody, but determined that the father should bear the financial responsibility for G in the sum of RMB10,000 per month (“the Mainland Maintenance Order”). The father appealed against the custody decision but was rejected on 12 August 2014. 23.Turning back to Hong Kong, the father appealed to the Court of Appeal against my decision and he succeeded on a point not raised by him before me: see QMY v GSS, [2015] 4 HKLRD 641. 24.The mother then appealed to the Court of Final Appeal which, by a judgment dated 21 June 2017, finally determined that Hong Kong courts have jurisdiction to deal with the mother’s claim under the Ordinance and the Hong Kong Family Court is a more appropriate forum: see QMY v GSS, (2017) 20 HKCFAR 303. 25.It was after this judicial odyssey that the main application returned to the Family Court for adjudication. Present Situation of the Parties 26.Due to the passage of time G is now a teenager. Apart from this, a lot has happened since the last 5 years or so. The Present Situation of the Mother and G 27.The mother has been the primary carer of G since her birth. As said, the mother and G have since August 2017 settling in Toronto. As before, the mother is not working and continues to take care of G on a full-time basis. However, shortly after landing on their new homeland, the mother was diagnosed to have breast cancer. She is now in remission but still has to attend follow-up at rehabilitation centre. 28.The mother and daughter are living in a leased apartment. G is attending an international school nearby. The Present Situation of the Father 29.The father is living with his wife with whom he married in 1989 in a property at the Discovery Bay that was purchased in his sole name. His two children have grown up, aged 25 and 20 respectively. His wife and the two children emigrated to Australia in the early years and the children received tertiary education there. The elder son is working for an investment bank in Sydney and the younger daughter is attending a university there. 30.The father left his top-managerial job with the Hong Kong listed company in November 2016 due to the company’s privatization. On the father’s version, he was being laid-off after 18 years’ service. From October 2017 to April 2018 he was employed as the vice-president of a non-state-run company (民企) in the Mainland with a net monthly salary of RMB70,000. He has not been in any gainful employment since May 2018. He said currently he has been prevented from taking up any meaningful employment because he has to take care of his wife who was diagnosed to have classical Hodgkin lymphoma, stage 2, in January 2019 and has undergone radiotherapy and chemotherapy. The Parties’ Case 31.It is a relief that neither party has ever tried to argue that a court of Ontario is a more appropriate forum to deal with the mother’s claim. 32.The mother’s case is straightforward. The father should be held solely responsible for the maintenance of G until she reaches the age of 18 or finishes full-time education. Despite the fact that he has left his previous employment, the father has the financial ability, both in terms of the wealth and his earning capacity, to support G. 33.On the part of the father, parentage and liability are never in dispute. Yet, I must confess it is not an easy task to grasp his case. 34.From the father’s affirmation evidence and the way in which his case was presented in the Opening Submissions, initially it was thought the father would rely on the agreement that he alleged he had made with the mother regarding the joint investments when the parties were in a relationship to support his contention that he had already provided more than sufficient financial security for G well before the mother took out the present proceedings. 35.The father said as from 25 August 2003 to 6 April 2008, he had given a total of RMB 2,645,584 and $1,540,000 to the mother who made use of substantial part of these monies into the purchase of 3 pieces of property in Guangzhou in her sole name. Except the last property in the Ersha Island, the other 2 properties have already been sold with profits. The father claimed there was an agreement between them that these properties were to be jointly owned and that any profits generated by these investments would be used for further investments and any gains would be shared equally. He further claimed that subsequently after the arrival of G there was an agreement that the rental income of their jointly owned properties would be used to meet the monthly expenses of G and that each of them would have ¼ share of the joint investment and that G would be entitled to the other half. 36.Whilst accepting there were such money gifts, the mother denied there was ever any agreement as alleged, whether on the joint investment, the purchase of properties or the maintenance of G. 37.As a matter of fact, apart from the legal proceedings concerning G that the father commenced in the Mainland, he also commenced a separate set of proceedings in Guangzhou claiming beneficial interests in the said 3 pieces of property and the return of them by the mother. I shall refer to these proceedings as the “Mainland Restitution Proceedings”. His claim was substantially successful in the first instance but met with failure on appeal. 38.I shall deal with the alleged agreement and the Mainland Restitution Proceedings in the latter part of this judgment. 39.During his opening, Mr Lin clarified that it was not the father’s intention to invite the court to come to any findings of fact as to whether or not there was any agreement over the joint investment or the maintenance of G as alleged by the father. Mr Lin adroitly emphasized that the monies were provided to the mother in contemplation of the parties to maintain G. He submitted that the court should take all these transfers of funds and purchases as part of the circumstances of the case into consideration when determining whether or not the father should pay any further maintenance and if the answer is in the positive, how much the father has to pay. 40.In addition, the father is now unemployed and, in any event, the mother is financially better than him. 41.Lastly, the mother has failed to give a full and frank disclosure of her financial situation; specifically, she has parked substantial assets with her sister. The Mother’s Open Offer 42.The mother is seeking: -
43.As for the period before the relocation, at the beginning of the trial the mother was seeking a periodical payment of RMB 42,000 and a carer’s allowance of RMB 10,000 per month from July 2012 (the date of the application) to August 2017. The mother subsequently reduced the figures to RMB 40,000 and RMB 9,700 respectively. 44.The mother is willing to give credit to RMB 350,000 already paid by the father pursuant to the Mainland Maintenance Order. The Father’s Open Offer 45.It is not in dispute that the father had paid a monthly sum of RMB 10,000 pursuant to the Mainland Maintenance Order from November 2013 to October 2016, making a total of RMB 350,000. The father was willing to continue to pay after October 2016 but he was prevented from doing so because the mother’s bank account had been closed. 46.Before trial, the father had never given any open offer. It was upon the court’s repeated inquiry during the opening that, Mr Lin, on behalf of the father, confirmed that notwithstanding it is the father’s case that he has already provided more than sufficient for the upbringing of G, he agrees to provide an undertaking to the court that he shall continue to pay RMB 10,000 or alternatively, he is agreeable to an order of RMB 10,000 to be made against him; so the father is essentially saying that the mother is not entitled to any maintenance out of the present proceedings. With respect, it has remained a mystery as to how the father would have come up to a figure of RMB 10,000. It has to be remembered that when the Mainland Maintenance Order was awarded by the Tianhe Court, the mother and G were living in Guangzhou but they have since moved to Toronto. One wonders whether in the eyes of the father RMB 10,000 is a magical figure that shelters him against all circumstances. Exchange Rates 47.This case involves three currencies and spreads over a couple of years. I shall adopt the broad-brush and pragmatic approach proposed by Mr Yim to which I understand Mr Lin has no objection. 48.For the exchange rate of Reminbi to Hong Kong dollars, according to Mr Yim’s calculation, it is RMB 1 to $1.184. 49.For the exchange rate of Canadian dollars to Hong Kong dollars, it is CAD 1 to $5.8896. 50.As for Canadian dollars to Reminbi, I adopt the rate of 1:5.35. Issue Estoppel 51.Before I embark on dealing with the mother’s claim, there is a preliminary issue that needs to be cleared. 52.It is to be recalled that clearly as a response to the mother’s present application, the father instituted a separate set of proceedings in the Mainland in respect of the custody and maintenance of G. His first attempt at the Siming Court met with failure but his renewed application at the Tianhe Court of Guangzhou was accepted. As far as the Tianhe Court proceedings are concerned, it would appear that the parties have chosen to refer to and have adduced in the present proceedings those judgments that are in their favour only. What are before me are the 1st instance judgment of 18 March 2014 by the Tianhe Court (“the Tianhe Court Judgment”) and the final judgment of 14 August 2017 by the Intermediate Court (“the Intermediate Court Judgment”). Whilst by the Tianhe Court Judgment, the Tianhe Court found it had jurisdiction over the matter, it dismissed the father’s application for the custody of G. Instead, the Tianhe Court awarded G’s custody to the mother and made the Mainland Maintenance Order. As confirmed by counsel during the Closing, subsequent to the Tianhe Court Judgment, there were further applications by both parties including an application by the mother for re-hearing of the matter and eventually the proceedings came to a conclusion when the Intermediate Court refused the mother’s application and confirmed the Tianhe Court Judgment. The Father’s Case 53.Mr Lin relies heavily upon the Intermediate Court Judgment, which is ‘final and conclusive’ on the maintenance issue, to argue that the judgment gives rise to an “issue estoppel” and the mother is thus estopped from seeking to re-litigate the same issue (namely, the maintenance of G in Guangzhou) and that such an attempt would be an abuse of process. 54.It is also Mr Lin’s submission that in any event, comity would require a foreign order should be recognized and respected. 55.He referred to §18/19/10 of the Hong Kong Civil Procedure (2010) where it reads,
56.Mr Lin argues that the 3 requirements set out in DSV Silo-und Verwaltungs-Gesellschaft MBH and Owners of the Sennar [1985] 1 WLR 490, [1985] 2 All ER 104 at 499A for issue estoppel to apply are met in this case. The first requirement is the judgment in the earlier action relied on as creating an estoppel must be (a) of a court of competent Jurisdiction, (b) final and conclusive and (c) on the merits. The second requirement is that the parties (or privies) in the earlier action relied on as creating an estoppel, and those in the later action in which that estoppel is raised as a bar, must be the same. The third requirement is that the issue in the later action, in which the estoppel is raised as a bar, must be the same issue as that decided by the judgment in the earlier action. 57.It is therefore Mr Lin’s contention that as far as the issue of G’s maintenance in Guangzhou is concerned, be it as regards to liability or quantum, it has been finally determined and the mother is barred from re-litigating the same. Legal Principles 58.I have not long ago dealt with this issue in the context of a relocation case in which I referred to Rayden and Jackson on Relationship Breakdown, Finances and Children and Hale J (as she then was)’s judgment in Re B (Minors) (Care Proceedings: Issue Estoppel) [1997] Fam 117, [1997] 1 FLR 285: see RM v SRM (Security for Costs: Child Relocation) [2019] 2 HKLRD 1094, [2019] HKFLR 145, [2019] HKFC 93. Rayden and Jackson on Relationship Breakdown, Finances and Children has the following commentary on this subject,
59.Hence, in short, it is because of the court’s inquisitorial duty to investigate into what is in the best interests of the children that the doctrine is not strictly applicable. 60.In Re B (Minors) (Care Proceedings: Issue Estoppel), supra, the questions that Hale J (as she then was) had to consider were the scope and application of the doctrine of issue estoppel and the power of the court to control the evidence to be called in proceedings concerning children. The father in that case was found in an earlier separate proceeding to have sexually abused two children under his care. Before the trial on the care of another 2 children took place, the proceedings were transferred to the English High Court on a preliminary issue. The issue before Hale J was whether the father was bound by this finding in another proceedings relating to other children. After having reviewed the approaches taken in previous authorities, Her Ladyship came to a conclusion that the father was “not necessarily” bound by the previous finding of sexual abuse. Her Ladyship concluded at 128B-129C,
61.While Re B (Minors) was a care proceedings case, the principles enunciated by Hale J were followed in the financial remedies case of MB v KB [2007] EWHC 789 (Fam), [2007] 2 FLR 586. In that case the parties were able to come to a compromise in the ancillary relief proceedings pursuant to which a consent order was granted. After that, the wife applied for a settlement of property order and/or a lump sum under the Children Act 1989, Schedule 1. The husband’s application to strike out the wife’s application on the ground that the question of housing needs had already been determined by the courts was rejected by Baron J who said,
62.It should be noted that the Hong Kong equivalence of an application under Schedule 1 of the Children Act 1989 is an application under section 10(2) of the Ordinance, the very section that the mother relies upon in the present application. 63.In Hong Kong, the principles in Re B (Minors), supra, were considered and applied in the Court of First Instance case of JEK v LCUP, HCMP 468/2015 (unreported, 8 May 2015) where Chu J, said, 29. As seen from the judgment of Hale J, the father’s Queen’s Counsel had traced the history of issue estoppel in family cases in her submissions on behalf of the father, demonstrating that the courts had always been reluctant to apply it strictly, and that in divorce cases, it was held subject to the court’s overriding duty to inquire into the truth of the allegations made, and in ancillary matters, the courts became increasingly reluctant to be bound by the grounds for divorce which had been had established in the divorce suit. In children’s cases, the court’s duty would be to give paramount consideration to the child’s welfare, it would be highly unlikely to let the findings in the divorce suit stand in the way of considering all the evidence relevant to that issues. 64.Hence, it is clear that in considering the question of whether the Mainland Maintenance Order constitutes an issue estoppel that bars the mother from seeking further maintenance in respect of the period when G was living in Guangzhou in the present proceedings, I shall follow the guidance laid down in Re B (Minors). Discussion 65.This doctrine, under the name of estoppel per rem judicatam, has two branches: “cause of action estoppel”, which precludes a party from relitigating the existence of the same cause of action, and “issue estoppel,” which precludes a party from denying any matter of fact or law necessarily decided by the earlier judgment: see Dicey, Morris & Collins on the Conflict of Laws (15th Edn) at [14-030]. In advancing their arguments, counsel have not made a clear distinction between the two branches and their arguments apparently cover both. 66.I shall now turn to the father’s grounds. For the purpose of discussion, I have grouped and numbered the arguments advanced by Mr Lin into two board areas. Ground No 1 67.In light of Re B (Minors), supra, Mr Lin, on behalf of the father, concedes that the father is not contending that there is any strict rule of issue estoppel binding on any of the parties in cases concerning children, as the welfare of the child is a very relevant consideration as one of all the circumstances of the case. Mr Lin further accepts that children proceedings are inquisitorial in nature and the court has a discretion as to how to conducts its inquiry. He however argues that in this case there is no strong reason for the court to allow the Guangzhou maintenance issue to be retried after the Tianhe Court has made its final and conclusive determination. 68.Mr Lin submits that, as a starting point, a party to civil proceedings is generally not allowed to make an assertion lightly that the previous essential findings of a court of competent jurisdiction is incorrect unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in previous proceedings has since become available to him: Mills v Copper [1967] 2 QB 459, at 468-469. It has been emphasized by Mr Lin that the Mainland Maintenance Order was made after a proper trial and appeal procedure and that the courts had considered the relevant materials from the Hong Kong proceedings. In the present case, there is no new evidence or information casting doubt upon the accuracy of the original findings of the Intermediate Court. In particular, the mother has not submitted any evidence to suggest that the assessment made by the Intermediate Court was wrong. 69.Mr Yim, on the mother’s behalf, submits that the father failed to raise this issue during the course of the trial. The father only raised this issue for the first time in Mr Lin’s Closing Submission. To allow this argument to be advanced at this late stage would be wholly unfair to the mother, because she was effectively deprived of an opportunity to deal with this issue through evidence. If those acting for the mother had had advanced notice of this argument, they would likely have adduced Mainland legal expert evidence on the effect and nature of the Mainland Maintenance Order, in particular the finality of that Order. The father has the burden of establishing that the Mainland Maintenance Order is “final and conclusive”. However, he has completely failed to adduce any Mainland legal expert’s evidence in this regard. 70.In respect of the argument that there is no new evidence or information casting doubt upon the accuracy of the original findings of the Intermediate Court, it is Mr Yim’s submission that the Intermediate Court Judgment was made on the basis of evidence submitted unilaterally and selectively by the father and the Mainland courts never had the benefit of any evidence from the mother when making the decision. Further, the Mainland Maintenance Order was made on the basis that the father had a salary of just over $85,000 and owned one joint-name property in Hong Kong only. Yet from the evidence transpired in the present trial these materials were clearly untrue. As explained in Re B (Minors), supra, the welfare of a child is unlikely to be served by relying upon determination of fact which is erroneous. In the present case, the court is not asked to grapple with a second application on the same evidence as that adduced for the purpose of the Mainland Maintenance Order. Rather, this court is asked to form an independent assessment of the amount of maintenance payable by the father based on a different, updated and more accurate sets of facts. It would be contrary to substantial justice if the mother and the child are to be precluded by the Mainland Maintenance Order from bringing the present application in Hong Kong, as the amount of maintenance granted, ie RMB 10,000 clearly was incommensurate with the financial position of the father at the time the decision was given. 71.I must say I agree with Mr Yim that issue estoppel is an issue far too late to be raised. I would go further to say that the father should have raised this issue well before the trial. Apart from what Mr Yim has said, in my view, there is an additional ground that is more fundamental. It should not be forgotten that Re B (Minors), supra, is a decision on a preliminary issue. Hale J was tasked to give some guidance to the trial judge in that case as to how the trial should be conducted in light of the challenge of the findings of fact by the father. Her Ladyship pointed out that whether or not any issue of fact is to be tried afresh would have to be determined by the trial judge who, in exercise of his discretion, would have to consider many factors in the balancing exercise. It is therefore clear that whether or not the doctrine of res judicata or issue estoppel applies would have to be determined prior to trial. Where a party wishes to rely upon this doctrine he should either apply to have the other party’s relevant application or claim to be struck out or seek directions from the court as to how the inquiry into the matter is to be conducted at trial; the court would have to consider whether there should be a rehearing on any issue or evidence. In doing so, the court would have to consider all the relevant factors including those highlighted by Hale J in the balancing exercise. 72.Thus analysed, what the father should have done before the trial was to apply to have the mother’s application, insofar as it relates to the Mainland Maintenance Order, to be struck out or to seek directions from the court on whether he may rely upon certain findings of facts already determined by the Tianhe Court so that the relevant evidence is not required to be reheard. If such an application had been made, as pointed out in Re B (Minors), supra, “the court may wish to be made aware, not only of the findings themselves, but also of the evidence upon which they were based. It is then for the court to decide whether or not to allow any issue of fact to be tried afresh”. Likewise, in the balancing exercise the court would have the consider whether the Mainland Maintenance Order was determined upon erroneous evidence regarding the father’s financial situation as asserted. Not only that the issue of whether there was any erroneous evidence was not raised before the trial, worse still it was not dealt with in the course of the trial as a result of which even up to now the court has not been told of the father’s stance. As a matter of fact, the relevance of the Mainland Maintenance Order was vouched in Mr Lin’s Opening Submission as only one of the circumstances that the court should give regard to when considering what the father’s share of G’s reasonable maintenance should be. As such, it has been repeatedly emphasized on the father’s behalf that RMB 10,000 as awarded under the Mainland Maintenance Order was already on the very high side. Questions in this regard were put to the mother during cross-examination and, in the same vein, her and G’s expenditures and life-style in Guangzhou were also subject to strict scrutiny. In reality, the court was invited to and did re-hear the evidence. That being the case, if the court has heard the evidence in full; and given that the court is tasked with an inquisitorial role to give regard to the best interests of G as the first and paramount consideration, I have no doubt that the father’s application comes far too late to be considered. Ground No 2 73.It is also argued by Mr Lin that given the mother’s contention that Hong Kong courts should be the appropriate forum, she could have applied for an anti-suit injunction in Hong Kong to stop the father from proceeding further in the Mainland. Instead, the mother chose to take part in the Mainland proceedings and argued the substantive merits of her case. To distant herself from the Mainland proceedings, the mother sought to suggest that she did not submit any evidence to prove G’s education and living expenses or provide any documents concerning her financial status. Mr Lin submits that was entirely a matter of her choice how she intended to handle the proceedings. It is emphasized by Mr Lin that even the mother has confirmed in her testimony that she considered the Mainland proceedings have come to an end and there has not been any further appeal from or any application for a variation of the Intermediate Court Judgment. 74.On the other hand, it is Mr Yim’s argument that the present application plainly involves no abuse of process. Critically, it must be remembered that it was the mother who first commenced her application in July 2012. The father chose to disregard the mother’s application and initiated a series of proceedings in the Mainland. To allow the father to rely on any issue estoppel in circumstances thereby precluding the mother from seeking a proper adjudication form this court will offend any sense of justice and fairness. 75.I agree with Mr Lin that the mother could have applied for an anti-suit injunction at the relevant time. Yet, for the reason that I have set out above, what the father should have done was to make an application to have the mother’s relevant part of her application to be struck out and if the court accepts his application, it would not be necessary for the court to rehear the evidence. I have no doubt that this is an argument that comes too late to have any validity. 76.For the above reasons, I conclude that the father should not be allowed to rely upon res judicata or issue estoppel. The Legal Principles 77.The present application is made under s 10(2) of the Ordinance. The provision of s 10(2) is as follows,
78.As can be seen, the manner in which how the power is to be exercised by the court is framed in general terms: the court may exercise the power given under s 10(2) as it thinks reasonable having regard to the means of that parent. 79.In WGL v ASB (Child Maintenance under the GMO) [2013] HKFLR 391, Deputy High Court Judge Chu (as she then was) compendiously analysed the differences between Hong Kong and England in terms of the legislative framework and came to the view that, despite the differences in the statutory framework, courts in Hong Kong, in the exercise of discretion under s 10(2), may give regard to the matters provided in the English legislation. These matters include the factors set out in paragraph 4(1) of Schedule 1 of the English Children Act 1989. Paragraph 4(1) read as follows,
80.It is well settled that the principles and guidelines set out in the English Court of Appeal judgment of Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865 are very helpful guidance on how the power is to be exercised. In that case, speaking of the said paragraph 4, Bodey J gave the following guidance,
81.Lastly, it should not be forgotten that courts in Hong Kong are enjoined by section 3 of the Ordinance that in dealing with matters concerning a child’s custody and upbringing, the courts shall regard the best interests of the child as the first and paramount consideration. 82.Guided by the above principles, I now turn to the mother’s claims. Issues in Disputes 83.The issues identified by counsel are broadly similar. They are:
84.In respect of issue nos 1 and 2, the court is not tasked with the division of assets between the parties, all that is required is a ballpark assessment. The Father’s Financial Resources 85.The mother estimates the father has assets close to $56,773,000 while the father says his assets have dwindled to about $12,394,000. This huge disparity is mainly due to 3 reasons. 86.First, since these proceedings the father has made a series of dispositions of his assets in favour of his family members. Mr Yim labels these transactions as dissipations on the part of the father with the intent to defeat the mother’s claims. 87.Secondly, whether the full value of the balances in the 2 bank accounts held under the joint names of the father and his wife should be considered as the father’s monies or only half of the value should be considered. 88.Thirdly, a substantial sum of money, reckoned by Mr Yim to be more than $13,000,000, is being locked up in some insurance and annuity plans. 89.In order to put the arguments in their proper perspective, one has to look at the relevant chronology of events. 90.Before the present proceedings the father had interest in 4 pieces of landed property.
91.Since the mother’s commencement of the present proceedings in July 2012 the father has made the following dispositions/transactions. 92.On 13 March 2013, the father transferred the 2204 Property to his son. 93.On 30 July 2016, the father purchased a property in the Discovery Bay for $18,390,000 as his new matrimonial home. This was purchased with a mortgage in his sole name. I shall refer to this property as the “45C Property”. 94.In August 2016, the father sold the 1102 Property for RMB 8,700,000 and in about December 2016, he made use of the proceeds of sale in the region of $9,730,000 in the purchase of another property in the Discovery Bay (“the Siena Property”) for $11,000,000 for his daughter. 95.At about the same time, the father and his wife sold the Shatin Property for $12,380,000. Upon receipt of the proceeds of sale, the father transferred $10,000,000 to his wife. 96.In October 2016, the father transferred $1,000,000 to his wife; and in November 2016, he transferred another sum of $400,000 to her. 97.From May to July 2018 the father transferred a total of RMB 2,300,000 in favour of his son. 98.As a result of these exercises, the father currently has interest in 2 pieces of landed property only, namely, the Lai Wan Property in Guangzhou of which he has half of the interest and the 45C Property. 99.It is highlighed by Mr Yim that the timing of these dispositions and purchases is highly suspicious. They all took place during the currency of the present proceedings. Specifically, the purchase of the 45C Property and the sale of the Shatin Property took place just shortly after the Court of Appeal had granted leave for the mother to appeal on the jurisdictional and forum grounds. Disposals of the Landed Properties 100.The father gave his explanation for the very first time in his oral evidence. In essence, all these distributions of assets were done upon the instructions of his late mother (“the grandmother”) who at the relevant time was living in Guangzhou. 101.The father testified that in the fall of 2011, the mother paid a visit to the grandmother who thereupon learned of his extra-marital affairs and the existence of G. The grandmother allegedly reacted with such shock and fury to such an extent that she had to be admitted to hospital for medical care. It was during her stay at the hospital that the grandmother instructed the father to purchase or distribute properties to each of his wife, daughter and son, since he had already “purchased” 3 pieces of property for the mother and G. The 2204 Property was therefore given to the son, the daughter was given the Siena Property and the wife was given the proceeds of sale of the Shatin Property. The grandmother passed away shortly thereafter. Subsequently, the family had a meeting on the grandmother’s “dying” wishes. 102.The father’s story seemed spurious. The “dying” wishes of the grandmother and the family meeting did not feature in any of the father’s affirmations. There is no reason why the father did not mention this. Nor any member of his family was called to give evidence regarding the family meeting. At the time of the transfer, the father’s son was merely a 19-year old and was about to graduate from the university. Likewise, when the father purchased the Siena Property his daughter had just come to the age of majority and was receiving education in Australia. One wonders why there was such a rush. Common-sense informs us that probably his daughter, who up to now is still a final year finance/marketing student, needs a career more than a piece of property. 103.Be that as it may, whether or not it is a true story, in my view, it does not have impact on the determination of the issues before me. The grandmother’s “dying” wishes is alleged to have been made before the present proceedings. Obviously, at that time no one would have anticipated this protracted litigation or indeed any litigation at all. I am sure when the father subsequently made all these disposals, this litigation and the litigations in the Mainland must have been in the forefront of his mind; yet he consciously decided to go ahead. Whatever the true reason is, whether they were gifts or compensations as asserted in his Answers or they were made upon the instruction of the grandmother as he said in court, these dispositions no doubt resulted in diminishing his wealth and objectively undermining his ability to maintain G. I do not think the father should be allowed to do so. Disposals of RMB 2,300,000 to the son 104.The father’s Form E of 28 August 2017 stated he was holding a trust fund of RMB 2.3 million for his son. This was an investment fund purchased in the name of the father from a bank in Guangzhou from April 2017 to August 2017. The money that was used in the purchase was from the son and therefore the father had no interest in it. In evidence, the father explained that at that time he had just lost his job, was looking for employment and was not in a good mood; it was upon the encouragement of his wife and the son that an idea of purchasing a property in Guangzhou was came up. In about April 2017, the father, his wife and his son decided to pool their resources in the purchase of a property in Guangzhou for RMB 8.03 million. It was decided that the wife and the son would contribute RMB 3.75 million and RMB 2.3 million respectively and the father’s share would be RMB 1.98 million. The purchase however fell through due to the backing out of the vendor. The son’s money however had not been returned to him at that point. Instead, at the request of the son the father made use of the money in the purchase the trust fund. Subsequently, the said RMB 2.3 million was returned to the son in 2018. 105.I accept there are aspects of his evidence that are not entirely satisfactory. The father was ambiguous as to why the family had to pool their resources in the way they did. Initially, the father explained that at that time he did not have sufficient capital so contribution was made from the three of them. When it was pointed out to him that at that time (April 2017) he was already paid a retirement fund of $8.866 million in January 2017, the father corrected what he meant was he did not have sufficient money in his Guangzhou account and it was impossible for him to remit his money from Hong Kong. Further, the father agreed that the trust fund, though located in Guangzhou, could be operated online on the internet. 106.That said, I accept the said RMB 2.3 million was originated from the son’s Mainland account and so prima facie it was the son’s money. This is supported by the relevant bank statements. I cannot accept Mr Yim’s suggestion that the subsequent return of the money was a dissipation. 107.In my judgment, a more relevant question is why the son would have had such a substantial sum of money? The father said his son graduated from the university in about 2013 or 2014 so when the contribution was made the son, then aged 23, was either in his final year of his undergraduate or in the first year of his career. It is hard to imagine that the son could have amassed such wealth by his own effort, nor was this the suggestion of the father. The undisputed evidence is that the father was at all times the sole breadwinner of his family. The only logical conclusion that can be drawn is that the fortune was endowed from the father. The Balances in 2 Joint Accounts 108.The father stated that, in respect of 2 joint accounts that he has with his wife (one with the HSBC and the other with the Hang Seng Bank), he owns half of the money in the account only, the other half being his wife’s property. 109.It is Mr Yim’s submission that notwithstanding the father and his wife are the joint holders, the monies in these accounts in fact belong to the father entirely. He draws upon the following evidence in support of his contention. 110.First, all his salaries including the last payment of about $558,000 upon the termination of his employment, the retirement fund of $8,866,000 and the sale proceeds of his properties were all deposited into the HSBC account. 111.Secondly, on 23 July 2016 the father withdrew $5 million from this joint account for the purchase of his 45C Property and all the monthly mortgage payments have been paid out from this joint account. 112.Thirdly, on 29 October 2016 and 10 November 2016 from this account the father transferred respective sums of $1 million and $400,000 to his wife. He said these were reimbursement of expenses that the wife had paid on his behalf, specifically for the costs of renovation and furniture of the 45C Property that was purchased in his sole name. However, as a matter of fact, according to his Answer, the father had already issued a cheque for $608,212 on 3 August 2016 and 2 cheques in the respective sums of $304,106 and $456,159 on 5 December 2016 all of which he said were for the renovation of the newly purchased property. Mr Yim contends that if the total of $1,400,000 was really for the reimbursement of expenses that his wife had spent on his behalf, it is inexplicable as to why he repaid the money out of this joint account which he claimed his wife had half of the interest in it. Effectively, what he said was he made use of his wife’s money to repay half of his indebtedness towards his wife. As I see it, the father does not have any satisfactory explanation. 113.Fourthly, the money that the father used for the purchase of the Siena Property in November 2016 was also drawn from this account. 114.Fifthly, the premiums for the father’s 2 insurance plans in the region of about $5,560,000 in 2017 and 2018 were drawn from this account. 115.Finally, with the funds from this account the father purchased a golf-cart and a club-membership for $1,950,000 as a gift for the wife. 116.In response, Mr Lin submits it is trite law that if there was no agreement between husband and wife as to mutual rights in a bank account, equality should apply and a spouse should be entitled to one half of the balance in such account. He relies upon the opinion of Lord Walker of Gestingthorpe NPJ in Yung Shu Wu v Vivienne Sung Wu (2011) 14 HKCFAR at [65],
117.Mr Lin highlights the fact that either the father or his wife can operate the joint account singly. The fact that withdrawals were used for acquiring the father’s insurance plans, or the golf-cart as a gift to the wife cannot be treated as evidence for establishing the alleged sole beneficial ownership of the father in the joint accounts in that each spouse has the power to draw on the joint account not only for the benefit of the spouses but also for his or her own benefit and that money withdrawn from a joint account by one account-holder would generally became his or hers outright. Again, Mr Lin draws support from Yung Shu Wu v Vivienne Sung Wu, supra, where Lord Walker said,
118.Yung Shu Wu v Vivienne Sung Wu is a judgment by the Final Court of Appeal. As such, it is binding upon this court. However, I fail to see how these principles could be of assistance to the father. 119.To begin with, there is no evidence of pooling resources. More importantly, it is trite that in family proceedings in the assessment of a party’s means to pay the court would look at the reality of the situation. The relevant principles were succinctly summarized by HH Judge Bruno Chan in T v J (Children born out of wedlock), [2009] HKFLR 67,
120.I am satisfied these principles are pertinent to the present case. It is important to bear in mind at issue is what are the financial resources at the disposal of the father so that G’s needs could be met. The evidence compellingly points to the reality that all the monies in the 2 joint accounts have been and are at the father’s disposal. Insurance and Annuity Plans 121.In May 2017, shortly after he had lost his job, the father purchased two insurance policies which required premiums of $5,560,000. He made use of part of the retirement fund of $8,866,000 for payments. The policies have a term of 10 years. Upon maturity, he would be entitled to an annuity. These policies are meant to be for his income protection when by the time the policies mature he would be around 60 to 65 years old. There is another annuity plan that the father purchased with HSBC. Not much details however are known about this plan. 122.Mr Yim challenges that at the time of the purchase, the father, being all along the sole bread-winner of the family, had just lost his job and had to pay monthly mortgage payments of $46,000 for the 45C Property and $25,510 for his wife’s property; and on the top of all these he had to pay costs for the legal proceedings both in Hong Kong and in the Mainland. Yet he decided to spend such a large sum of money on the insurance plans. Furthermore, at about the same time, on 1 June 2017 he lent his relative one Mr Fung a sum of RMB 1.3 million. Under cross-examination, the father conceded that since he had no immediate use of the retirement fund and was minded to remain economically active, he therefore decided to spend a large portion of the fund in the way he did. 123.It has been stressed by Mr Yim that as much as $13,000,000 are being locked up under these plans. I take what he means is that by the time when these plans come to maturity, funds of this amount would be available. To this, it appears that Mr Lin has not given a response. As such, I am not sure whether the figure is that much. However, what I am sure is in a couple of years’ time, the father should be able to receive a constant stream of income for his benefit. This is exactly what he said he intended to achieve. 124.The father’s wife has not been working since they were married some 26 years ago. Yet, his wife still had the ability to pool RMB 3.75 million for the intended purchase of a property in Guangzhou in April 2017. I accept there is a possibility that the RMB 3.75 million might have come from the $10 million given to her out of the proceeds of the Shatin Property. However, according to the father’s own evidence, after the mother had commenced these proceedings, his wife purchased another property in the Discovery Bay and moved to live there, leaving the father in the Shatin Property. The father and his wife are now living in the 45C Property. There is no evidence as to what is the use of the wife’s Discovery Bay Property now but seemingly it could be rented out for some revenues. I accept the father may strongly feel obliged to take care of his wife financially and probably for this reason he has been footing the monthly mortgage payments of his wife’s property. I respect that. Nevertheless, all these pieces of evidence suggest the father’s wife has her own means. 125.As said, the task faced by the court is not to distribute the parties’ assets. It is thus unnecessary to be pedantic; all that is required is to take a broad view of the reality as to what the financial resources at the disposal of the father are. 126.In my judgment, at least the joint accounts, the Siena Property, ½ of the proceeds of Shatin Property and the disposals of $1 million and $400,000 in favour of the wife should be included for the present purpose. The father’s financial resources are therefore as follows,
127.The 2204 Property is valued at the time of the purchase in about 2003-2004; in all likelihood its current value should be way far more than $2,368,000. It should also be borne in mind that the insurance plans which would provide a considerable stream of income to the father upon their maturity have not been included. The conclusion that can be drawn is that, even where a conservative approach is taken, which is the case here, the father should have at least about $35,956,000 at his disposal. Earning Capacity of the Father 128.The father has a bachelor and a master’s degree in Engineering and is qualified as a Chartered Engineer in both the Mainland and Australia. 129.As mentioned in [30] above, the father was laid off from his top-managerial job in November 2016. He stated in his Answers of 26 February 2018 that his monthly salary before leaving his employment was $390,000. It is not in dispute that a substantial part of his income was subject to taxation in the Mainland (“PRC tax”). According to the father, the PRC tax was deducted by his employer prior to payment of his salary ie “the pay as you earn approach” and that his income liable to PRC tax would be exempted from taxation in Hong Kong. At trial, the father was taken to his salary statements and tax returns on what his actual income was. There is some ambiguity regarding how the PRC tax had been paid and what the tax rate was; be that as it may, according to his tax return filed with the Hong Kong Inland Revenue, his income for the year 2015/2016 was reported to be $8,995,844, of which 1,723,844 was his income from shares option. On the totality of evidence, it seems quite clear that $390,000 was the net monthly salary he received post-PRC tax and that his remuneration far exceeded what was stated on his Form E. I have no doubt that the father was a high-income earner, and without seeking to be arithmetically precise, I reckon his average monthly remuneration during that year was somewhat close to $500,000 per month. 130.After leaving his employment, the father got another senior position with a non-state-run enterprise (民企) in Guangzhou. This gave him RMB 70,000 post-PRC tax per month. He just worked there from October 2017 to early April 2018. Since then, the father has not had any permanent employment. He said at the beginning he was over-optimistic about being able to return to top management. That said, he is still enthusiastic in returning to gainful employment and so he has been actively involved in the real estate field on voluntary or ad hoc basis. He has taken up a consultant position with an institution from which he may receive some income on a case-by-case basis. In such capacity, he attended seminars in Hong Kong and Huizhou (惠州) of the Mainland and a study tour in the UK. If an opportunity presents itself, he could work for a few more years. 131.In my assessment, it is true that the father is already 57 years old but given that he has substantial experience, had been a prominent figure in the real estate business in the Southern part of the Mainland, in particular in Guangzhou for many years, and a member of the Guangdong Consultative Committee and the Guangzhou Consultative Committee for a couple of years, I am sure he is valued not by his age or physique but by his professional knowledge, impressive experience and most importantly, social network. As a matter of fact, the undisputed evidence is that he continues to spend substantial time in Guangzhou notwithstanding his claim that he has to take care of his wife and is without a job. He quitted his job with the non-state-run enterprise because he was not able to cope with the work culture; it was unrelated to his competence. Whilst I agree that it may not be easy for the father to return to a lucrative job as before, he should be able to be economically active and financially supportive of his family in the foreseeable future. 132.The father’s Form E of 28 August 2017 stated he needed $376,900 per month of which $316,800 was general expenses, $30,600 personal expenses and the remaining $29,500 was the daughter’s expenses. 133.The bulk of his general expenses were mortgage payments ($45,800) and insurance premium ($239,000). The father confirmed that in fact by May 2017 the insurance premiums had been fully paid up so $239,000 was gone. 134.The father’s personal expenses also included the RMB 10,000 (or $11,840) that he had to pay the mother pursuant to the Mainland Maintenance Order. 135.Further, the father’s daughter will soon graduate from university. 136.It follows that if the insurance premiums, the daughter’s expenses and the Mainland Maintenance Order are excluded, the monthly need of the father would be just about $96,560, with $77,800 being general expenses and the rest $18,760 being personal expenses. Of $77,800, $45,800 is mortgage payments which are essentially capital in nature. The Mother’s Financial Resources 137.The father says the mother is far wealthier than him. This is because the father is taking an extreme position by excluding everything he has disposed of and including every item that he says the mother has failed to explain satisfactorily, including at least RMB 7,030,000 that the mother has parked them with her sister. On that basis, the father says the mother should have at least $33,858,000’s worth of assets. 138.On the other hand, the mother’s case is that during all these years, in the absence of any financial contribution from the father for the maintenance of G, her assets have depleted rapidly. She had to liquidate her assets in order to sustain her living. At the moment, she has about $25,318,000’s worth of assets only; of which about $20,128,000 is the value of her only and last piece of property. Background 139.The mother used to have 4 pieces of property in the Mainland. 140.The first one, in the Siming City of the Fukien Province (“the Siming Property), was jointly owned by the mother and her sister. This property is unrelated to the dispute where the father alleged the purchase money was provided by him and the acquisition of it was pursuant to the alleged agreements. 141.The other 3 pieces of property, all in Guangzhou, were purchased in the sole name of the mother. 142.The first in line was purchased, free of mortgage, on 20 September 2004 for RMB 1,122,070. I shall refer to this property as the “305 Property”. The mother said when she purchased it she had to borrow RMB 400,000 from her sister and she borrowed a further sum of RMB 80,000 for the renovation of the property. The transfer of the said RMB 400,000 from the sister to the mother was in fact mentioned in the judgment by the Intermediate Court. At trial this has not met with challenge. She agreed the loans should have been repaid before 2008 either from the monies given to her by the father or in any event by 2012 after she had sold the 1201 Property (referred to in the following paragraph) in July 2009. 143.The second one, referred to as the “1201 Property”, was purchased just some 10 days later, on 1 October 2004, for RMB 1,115,147 with a mortgage of RMB 780,000. The mother’s evidence is that on about the same day the father purchased the 1102 Property (referred to in [90] above) which was in the same development as the 1201 Property of which their employer was the developer. The 1102 Property was subsequently sold by the father in November 2016 with the proceeds of sale being used in the purchase of the Siena Property for his daughter: see [94] above. 144.In the interim, G was born in August 2007. 145.The third and the last one is located on the Ersha Island and so it is referred to the “Ersha Island Property”. It was purchased on 17 September 2007 for RMB 5,080,000 with a mortgage finance of RMB 2,550,000. 146.The following chronology is helpful in understanding the mother’s case. 147.In about April 2008, when G was about 8 months old the mother left her employment for taking care of her. Since then the mother had to rely upon her savings and cash liquidated from her assets. 148.In February 2009, the mother and her sister sold the Siming Property for RMB 1,780,000. According to the mother, out of the entire proceeds RMB 200,000 were applied for the discharge of the Siming Property mortgage. She accepted that her sister should be entitled to half of the proceeds and on the top of that, the sister’s contribution to the mortgage payment was more than hers. At that time the sister allowed her to use the money to meet her financial needs; accordingly, about RMB 492,800 were used in the discharge of the mortgage of the 1201 Property and the balance in the region of RMB 1,077,200 was used in support of her and G’s living. The total sum that needed to be returned was reckoned at RMB 1,100,000. 149.In July 2009, the mother sold the 1201 Property for RMB 3,590,000. 150.3 years later in July 2012, the mother commenced the present proceedings and filed her 1st Form E dated 10 July 2012. 151.In September 2016, the mother sold the 305 Property for RMB 10,500,000. 152.As of now, the mother still owns the Ersha Island Property which is still subject to a mortgage of about RMB 1 million and is currently being rented out for RMB 20,000 per month. The Mother’s Case 153.The mother said apart from the money she needed to support her and G’s living, she also needed money for her application for emigration to Canada and for settling the legal fees in Hong Kong and the Mainland. She was required to invest CAD 120,000 in a designated project. Her financial problem further aggravated in August 2013 when the father obtained a freezing order from the Tianhe Court against her assets in his action for the return of the properties as a result of which she was restrained from dealing with her properties and for a couple of months was not able to rent them out. Starting from 2014 the mother had to resort to borrowings from her sister from time to time. 154.In her Answers dated 11 December 2017 and in oral evidence, the mother said she had borrowed (1) RMB 2 million from the sister since 2014 and (2) RMB 1.3 million via the sister from the latter’s friend in 2016 and (3) a further sum of RMB 100,000 from the sister on 2 January 2017. Inclusive of the sister’s share of proceeds of the Siming Property in about RMB 1.1 million, all these added up to about RMB 4.5 million. 155.It was not until after the sale of the 305 Property in September 2016 that she was able to repay her debts. Upon the receipt of the sale proceeds of RMB 10.5 million, the mother transferred, in 2 trances, a total of RMB 9.8 million to her sister’s account. It was out of this sum that the indebtedness of RMB 4.5 million were repaid, and the following sums were returned to the mother:
156.There was a balance of about RMB 1.87 million which the sister, a bank manager in the Mainland, has made use of in the purchase of certain investment products on the mother’s behalf. The statement shows that the value of these products has appreciated to about RMB 2,006,600. 157.Whilst the father accepts that the mother had to return the proceeds of the Siming Property to the sister, he does not agree there was a need on the part of the mother to borrow. It is the father’s case that her alleged debts are a sheer fabrication. It is on this basis that the father says the mother has substantial undisclosed assets. 158.The mother has the onus to prove her allegations. The core issue in dispute is therefore whether there were:
Discussion RMB 2 million 159.The only evidence that the mother produced was the WeChat messages that she had exchanged with the sister. There was a WeChat conversation on 17 March 2016 where the mother confirmed she owed the sister RMB 1.15 million and on 18 May 2016, according to another WeChat message, the amount went up to RMB 1.55 million. Finally, there was a WeChat message of 18 July 2016 that the mother confirmed she owed a total of RMB 2 million. 160.These self-serving statements naturally attracted criticism from Mr Lin which, in my judgment, is valid. The mother said the monies were loaned to her over time in different trances, yet there was not a single statement or transfer record adduced in support of her contention. The mother explained that when she gave her answers in her 3rd Affirmation of 11 December 2017 she had just landed on Canada and did not have the statements with her; shortly thereafter she was diagnosed with having cancer. Yet, later on, when being further questioned by the father, all those the mother gave in her Answers dated 27 April 2018 were the said WeChat messages. In my view, these cannot be said to be satisfactory or adequate given that on any view RMB 2 million is not a small sum of money. The mother, who has been acting through her solicitors all the time, must have been fully aware of the importance of adducing evidence to substantiate her case. 161.I am conscious of what the mother said about the father having made use of the documents that she produced in the present proceedings in the Mainland proceedings without the leave of the court. That was in breach of the father’s implied undertaking given to this court. That being the case, the mother was hesitant in producing the relevant statements in particular those of her sister’s. I consider this cannot be a ground for justification since relevant application could have been made to this court to address her concern. RMB 1.3 million 162.The mother testified that she borrowed RMB 1.3 million from her sister’s friend in 2016 and she did not know who that person was. Apart from these particulars, she could not be more precise. Same as the loan of RMB 2 million, the mother produced little evidence except the screenshot of her WeChat message of 2 January 2017 exchanged with her sister. The WeChat message was simply in one stroke of sentence, “Transferred, total 1.3 million” (“轉了，總共130萬”). The mother relied upon this message to support her contention that her sister had transferred RMB 1.3 million out of RMB 9.8 million on her behalf in the repayment of the loan. As I read it, not only that this message is self-serving, its meaning is ambiguous as well. It can readily be seen that there was no reference to any ‘loan’ or any ‘friend’. Even if this message is to be read in the context of other messages on the screen, one could hardly be able to have an understanding of the meaning intended to be imported by the mother. In this connection, it is intriguing to note this RMB 1.3 million message was in fact one of the 2 messages sent by the sister at the same time. The RMB 1.3 million message was the second one and the first one was apparently an image of a transfer slip confirming that some money had been transferred. A bank statement of the mother’s account with the China Merchants Bank showed RMB 80,000 was transferred from her sister’s account in her favour. The mother’s explanation was that on the day before (ie 1 January 2017) she asked her sister for RMB 100,000. Her sister therefore transferred RMB 80,000 to her and gave her RMB 20,000 in cash. As one reads it, and this is the reading adopted by Mr Lin (I agree he is entitled to do so), if the 2 messages are read together, it could give a meaning that up to 2 January 2017 the sister had transferred (in fact, returned) a total of RMB 1.3 million to the mother. RMB 100,000 163.The mother said in her Answers dated 11 December 2017 that on 2 January 2017 she returned RMB 100,000 to her sister. The evidence she purportedly relied upon was the transfer slip and the bank statement referred to in the foregoing paragraph. It can readily be seen that the transfer of RMB 80,000 cannot be proof of return of the loan because the said RMB 80,000 was a transfer from the sister’s account in her favour. At that time the sister was keeping her money, so the transfer was just a transfer of her own money. Did the mother have the need to borrow from the Sister? 164.Mr Lin draws my attention to what Chung J said in Star Glory Investment Ltd. v. Kai Tuo (H.K.) Technology Co. Ltd. HCA No.3523 of 2002 (date of judgment: 13 August 2005) regarding assessing credibility for the purpose of making a finding of fact,
165.It is in light of the scanty and somewhat inconsistent evidence that Mr Lin submits that the mother’s assertion of loans must be dismissed. A resounding theme repeatedly emphasized by the father is that the mother, having been blessed with 3 pieces of property, should have been able to live comfortably and did not have the need to borrow. In my judgment, the question of whether the mother had the need to borrow must be examined against the totality of the evidence before the court. 166.The mother’s 1st Form E of 27 June 2012 stated she had liquid assets of about $4,415,782 (or about RMB 3,729,500). That was the position after she had sold the Siming Property and the 1201 Property from which she received a total of RMB 4,667,000. On a rough estimate, it is entirely plausible that after a lapse of about 3 years (ie from July 2009 the time of sale of 1201 Property to June 2012) she had about RMB 3,729,500 remained on the date of the Form E. 167.From the date of the Form E (ie June 2012 when G was about 5 years old) up to her sale of the 305 Property in September 2016 (G was about 9 years old) for RMB 10.5 million, the mother testified that during these 51 months she had roughly a net rental income of RMB 754,290. Importantly this piece of evidence has not been challenged. It means that throughout this period of 51 months the mother would have had about RMB 4,483,790 at her disposal (ie RMB 3,729,500 + RMB 754,290). 168.The unchallenged evidence is that at the relevant time the mother paid CAD 120,000 (or RMB 642,000) for her emigration to Canada. She also paid about $820,000 (ie RMB 692,570) for her legal proceedings in Hong Kong. As for the Mainland proceedings the mother testified that she spent about RMB 2 million odd; she was not able to be more precise nor was there any documentary evidence in support. On the other hand, the father said he spent about RMB 1 million only but likewise there was no documentary proof. For the present analysis, I would err in favour of the father and adopt his figure of RMB 1 million as the mother’s legal costs in the Mainland. 169.Piecing all these figures together would give a picture that the mother would have RMB 2,149,220 left as her living expenses over a period of 51 months, or on average RMB 42,140 per month. The breakdown is as follows,
170.The next question is whether RMB 2,149,220 was sufficient for the mother. 171.As will be seen in [202] below, G’ reasonable needs when she was in Guangzhou is assessed at RMB 34,700 per month. It has to be borne in mind that a distinction has to be made between actual expenditure and expenditure that is assessed to be reasonable. For the purpose of this exercise, I shall err in favour of the father by adopting the reasonable figure. The average figure of the mother’s personal expenses in her 2 Form Es is about RMB 11,500. Again, I shall err in favour of the father by merely adopting half of this sum, ie RMB 5,750. There are also some expenses of capital nature eg insurance premium for which I would lean against the mother and adopt a conservative figure of RMB 10,000 in total under her personal expenses (ie RMB 5,750 personal expenses plus RMB 4,250 capital expenses). Adding to this should be the mother’s share of the general expenses of RMB 8,800. All these give a total of RMB 53,500; the breakdown of which is as follows,
172.On this analysis, over a period of 51 months, the mother would need roughly RMB 2,728,500. There would be a shortfall of about RMB 579,280 (RMB 2,728,500 – RMB 2,149,220). 173.The above analysis demonstrates that the mother had a shortfall to meet and I so find. This analysis also demonstrates that the shortfall was not as large as the mother had put it. I asses it at RMB 580,000. In other words, RMB 2,820,000 have to be added back. I wish to stress that if the court has come to an incorrect figure such that the shortfall was larger than assessed, the mother may blame no one as she is the only person who could put the materials before the court. 174.Following the above analysis, the mother’s financial resources as at April 2019 were as follows,
G’s Financial Needs 175.It has been emphasized by Mr Yim that in considering the reasonable needs of G the court should not be bogged down in detailed analyses and categorisations of specific items making up opposing budgetary presentations. Rather, the court should do its best to achieve a fair and realistic outcome by the application of broad common sense to the overall circumstances of the particular case: Re P(Child: Financial Provision), supra, at [77(i)] and see [80] above. 176.Mr Yim also refers to the same judgment where Thorpe LJ, at [40], quoted Hale J (as she then was)’s opinion that:
177.Mr Yim urges upon the court to give some regard to the standard of living of the father’s family: see: Re M-M (Schedule 1 Provision) [2014] EWCA Civ 276, [2014] 2 FLR 1391, at [34]. 178.On the strength of the above authorities, it is Mr Yim’ submission that the court should assess the financial needs of G in light of her living standard and lifestyles as well as those of the parties by applying broad common sense to the overall circumstances. 179.I will begin this subject with some general observations. 180.Mr Lin questions whether the mother’s emigration was necessary for the welfare of G and suggests that the mother used it as an excuse to significantly boost up her claim for the maintenance of G. 181.I am not impressed by this submission. I must say I am impressed by the dedication of the mother towards the care and upbringing of G. The mother has since the birth of G assiduously assumed the role of her sole-carer. Everything the mother has been doing is with the well-being and best interest of G in the forefront of her mind. Again, since the birth of G, whether in Guangzhou or in Toronto and whether in terms of G’s physical, emotional and spiritual enrichment the mother has been doing her utmost to give the best she could to her daughter. All her time and effort have been unreservedly devoted to the daughter. 182.When filling out G’s application form for her school in Canada, the mother stated she was a manager of a Mainland property management company but in fact she was not. Her explanation was she wanted to increase G’s chance of being admitted. The mother did not fill out the personal particulars regarding the father on the form. Her initial explanation was she was not able to contact the father. Under cross-examination she agreed that was not the case. She then gave the explanation she did not fill out the particulars because she reported herself as “single” on her application for emigration. She did not consider it necessary to provide any information regarding G’s father. Given that the parties were unmarried and they had already separated, I can understand why the mother made the application in the way she did. I extrapolate that in her eyes, rightly or wrongly, G is very much an abandoned child. 183.I gather that the mother has had plans for G since her infancy. I recognise the school fees in Guangzhou and in Toronto are not very affordable. It was after the mother’s careful consideration that she placed G in a co-educational school and so she chose the International School that G attended when they were in Guangzhou. Even when they had landed on Canada where G was entitled to enrol in a public school which was free, the mother continued to enrol G in an International School. I accept it was a decision consciously made for the sake of nurturing G’s talents and potentials that she chose to emigrate to Canada and specifically she chose Toronto as their home notwithstanding its punishing weather in the winter rather than the more approachable Vancouver in the Pacific Coast. The renowned violin tutor that G admired is in Toronto and the Royal Conservatory of Music where G may further her music talents is also in the city. Of course, all these are not free; they come with pricey charges by the tutor and the Royal Conservatory; so do the charges by the Music Festivals and the Swimming Club. She testified that she has plans of moving to Boston for G’s high school, paving the way for fulfilling G’s ambition of getting into the Harvard College. 184.With these observations, I cannot agree with nor do I find any merit in Mr Lin’s contentions that the emigration was a scheme engineered by the mother for the purpose of jacking up the maintenance to be payable by the father. 185.At this point, I have to say, not without some regret, that the mother’s dedication towards G is in great contrast to that of the father as impressed upon me at trial. 186.A theme that has been repeatedly stressed by the father is that G’s expenses at all times were and are excessive, exaggerated and unreasonable. It has been argued by Mr Lin that there is no objective evidence showing that the extensive extracurricular activities are in fact beneficial to G. Leaving these criticisms aside for one moment, it is significant to note, especially from his Closing Submission when by the time it was prepared the father had already heard the mother’s evidence, that apart from these criticisms there is virtually no suggestion or input from him, at least in respect of some of the items, as to what G’s reasonable needs should be in terms of her best interests notwithstanding that the mother’s financial resources and expenses, whether in respect of those in Guangzhou or in Toronto, have been meticulously scrutinized akin to an auditing exercise. In other words, I do not see any proposal from the father on how the childcare plan of his daughter could be enhanced. I am conscious that because of the animosity between the parties the father did not know much about his daughter but it is exactly because of this that, in my view, the father should have taken hold of the opportunity to ensure G’s interest is best served. This is what the trial is intended for. Take G’s extracurricular activities in Toronto as an illustration. It is true that in his affirmation of 26 February 2018 the father has made a number of critical remarks about the extracurricular activities that the mother arranged, so much so that the mother is alluded to be a “monster parent” (怪獸家長). Apart from the criticism that G has been attending activities including learning piano, violin, mathematics and swimming that are more than necessary and overly expensive, at trial there was virtually no inquiry from the father on what interests, potentials, strengths and weaknesses G has and what her aspirations are so that a suggestion may be put to the mother as to whether some activities should be given priority and whether some could be scaled down or dropped with a view to keep those expenses within an affordable scope while at the same time G’s talents could continue to flourish. Another example is notwithstanding the father mentioned in his affirmation of 5 November 2012 that certain prestigious non-state-run private schools (民辦學校) in Guangzhou could have been a choice for G, at trial this was not put to the mother for her response nor any evidence about the likely fees was adduced. In my view, it is irrelevant as to who ultimately has to pay the money. It is question of how, within a limited budget, G’s upbringing could be arranged in terms of her best interest. 187.It is because of the stance so taken by the father that even up to this day, after having heard the mother’s evidence in full, he has fallen short of suggesting any figure, not even a ballpark one, on the overall sum or at least in respect of some specific items, that he considers as reasonable for the maintenance of G. If there is not a reasonable figure in his mind or in the absence of some reasoned assessment, one wonders on what basis the father could be able to claim with a degree of confidence that the financial well-being of G has been and will be well taken care of without the need of his further contribution apart from the magical sum of RMB 10,000 per month under the Mainland Maintenance Order and this is an outcome that is fair to both parties? This absurdity is, in my view, too obvious when the mother and G have now moved to Toronto where the circumstances are entirely different from those in Guangzhou. Equally, in the absence of any reasoned assessment one wonders on what basis the father could be able to claim any further contribution on his part would have serious impact on his financial situation or beyond his means and on what basis the father is able to say the mother should be able to manage? A further question is if there is not a reasonable figure in his mind, how could he ensure the so called ‘agreement’ that he aspires G is to be entitled to half of their joint investments is to be achieved; and for that matter, what does it really mean? Does the father mean at the end of the day when G comes of age she should be given half of the investments or does he mean half of the investments are to be spent on G’s living expenses? 188.With all these observations in mind, I now turn to G’s financial needs. Financial Needs in Guangzhou 189.Back in Guangzhou, the mother and G initially lived in the Ersha Island Property. They subsequently moved to a leased apartment. G started to attend an international school in Guangzhou at the age of 3. That was the only school that she attended before her departure for Toronto. 190.G’s monthly needs, which include half of the general expenses as her share, are said to be RMB 39,577 or round it up RMB 40,000. This is an average figure obtained from the figures disclosed by the mother in her Form Es of 27 June 2012 and 28 September 2017. There appears to have no dispute over the arithmetic. 191.Mr Lin draws my attention to the International Social Investigation Report dated 5 December 2012 where it was reported that according to the mother her daily living expenses were merely about RMB 5,000 per month. G’s extra tuition fees were about RMB 7,000 per month and her school fees together with miscellaneous expenses were RMB 201,554 per year. 192.I am aware of what was said by the Tianhe Court about how the award of RMB 10,000 was arrived at. Each case has its own facts. In this regard, it should be noted that G’s school fees of about RMB 14,700 per month was already way above RMB 10,000. Further, G is quite unlike the majority of the children in Guangzhou. For the reason that she was arranged to be born in Hong Kong, she did not have a ‘household registration’ (“Huji” 戶籍) in the Mainland; her choice of schools in Guangzhou was limited; and her status also disallowed her to have access to public health and other social benefits; all of these mean higher costs of living. On any view, even by Hong Kong’s standard, the father in this case was a high income earner with properties in Guangzhou and Hong Kong. The father’s daughter attended an international school while in Hong Kong. Obviously, it was under the arrangement of the father that his family emigrated to Australia in about 2000s. Both of his children received university education there. 193.Mr Lin focuses his complaints on G’s extra tuition fees which were said to be RMB 5,153 and RMB 11,240 respectively in the 2 Form Es and which the father considers to be “very expensive”. Specifically, he highlights the fact that at some stage G’s violin lessons alone already costed RMB 5,200; this sum of money was already half of the amount considered in the International Social Investigation Report to be sufficient to provide for a high standard of living for families in Guangzhou. 194.The mother explained this head of expense consists of the fees for G’s piano lessons (RMB 500 per lesson, one lesson per week), violin lessons (RMB 5,200 per month), swimming lessons (RMB 1,800 per month), Chinese calligraphy lessons (RMB 1,680 for 15 lessons) and French lessons (RMB 200 per lesson). 195.I reckon the average sum is about RMB 8,197 per month ((RMB 5,153 + RMB 11,240) ÷ 2). It has been highlighted by Mr Lin that at the age of 5, G was required to learn, amongst other activities, piano, French, music, ballet and Kumon maths. I acknowledge that according to the mother G has talents in music and sports. This has not been questioned by the father. Yet, looking at the figure and the variety of the subjects objectively and considering that during that period G was merely 5 to 10 years old, I think there is some validity in the criticism that the mother was spending too much on this head. 196.With all the observations I have in mind, I take the view that the mother should have been more selective in the choice of activities. In the absence of any assistance from the father and doing the best I can, I would assess this item at RMB 5,000 per month (or $5,920) over this period of 5 years. My experience informs me that $5,920 as extra tuition fee should be within the range of reasonableness for a child of similar age from an upper-middle class background in Hong Kong. I think I am also entitled to take judicial notice that broadly speaking the cost of living in Guangzhou at the relevant time was lower than that in Hong Kong. RMB 5,000 should be adequate for G. 197.The burden rests squarely on the mother to prove her claims. Her other items of expenses however have not met with serious challenge from the father. 198.The mother said back in the Mainland she and G went for trips during the 3 term breaks every year. They had been to Japan, Australia, Singapore, Malaysia, Thailand, Bali and Inner-Mongolia. The mother also took G to a music summer camp in Tsingtao. 199.The mother and G had moved home a couple of times. In order to economise, the mother had sold her car and opted for public transportation. Needless to say, G’s outgoings, notably school fees, extra tuition fees, transportation to school and other expenses also varied during the years when they were in Guangzhou. 200.The father is not a stranger to Guangzhou. His extended family is there and he virtually has had his entire career there. According to his affirmation of 5 November 2012 in support of his forum non conveniens application, he had spent a large portion of his time in Guangzhou, at least for nearly 2 decades when he was working for his former employer. Even after he has left his last employment in April 2018 the father admitted he has been spending much time there. It has to be remembered that the father’s speciality is on real estate development in the Mainland and he used to have properties in the city. I have no doubt the father should be well familiar with the situation and the living standard of Guangzhou. On that view, it telling that by and large the other items of living expenses have not met with serious challenge from the father. 201.I bear in mind that when G was still in Guangzhou, save for the last few months her father was a high-income earner. It is impossible nor is it necessary to be arithmetically precise on each and every item by capturing every change and making appropriate adjustments. All that is required is to paint with a broad brush. 202.The mother is not claiming any of her personal expenses to be paid by the father. All she asks for is half of the general expenses to be attributed as part of G’s expenses, which, in my view, is a reasonable way of dealing with this matter. Doing the best I can and taking a board brush approach, G’s financial needs in Guangzhou are assessed at RMB 34,700 and the breakdown is as follows. The figures are rounded to their nearest RMB 100.
Financial Needs in Toronto 203.The mother and G are now living in a 2 bed-room leased apartment. She has acquired a BMW SUV by hire-purchase, mainly for taking G for activities. She says she currently needs CAD 11,900 for the maintenance of G of which CAD 9,089 is attributable to G’ personal expenses and the rest is her share of the general expenses. As far as G’s personal expenses are concerned, the major items are school fees (CAD 2,870), extra tuition fees (musical instruments and swimming) (CAD 3,125) and the costs for summer camps (CAD 800). The mother is in receipt of Child Tax Benefit in the sum of CAD 580 from the Provincial Government for the benefit of G. 204.It is pointed out by Mr Lin that according to the information obtained by the father on the internet, the annual expenditure of a normal overseas student in Canada would be at most around CAD 30,000 (ie CAD 2,500 per month), which is 80% less than what the mother is now claiming. It is therefore unrealistic and unfair if the court is to approach G’s reasonable financial needs in such an extravagant way as claimed by the mother. Mr Lin however declines to say whether CAD 2,500 per month is the bottom-line or the maximum amount that G needs. 205.A recurring complaint on the part of the father is the extracurricular activities and tuition of G, as claimed by the mother, are overly expensive. 206.Mr Lin submits that while there may be benefits to allow G to gain exposure through extracurricular activities and tuition, it is not in her interests or “needs” for her to be burdened with numerous extracurricular classes. The mother has chosen an elite violin tutor or swimming club without giving due regard to the costs involved. The annual overseas summer music camps in Tsingtao and in Germany, the swimming competitions and the chamber music are all needed to be paid for. The extent of extracurricular activities that G has been doing is entirely disproportionate or unnecessary to her needs or the financial capacity of either parent. The amount and frequency which G attends these classes must be relative to the financial ability of her parents. The mother has not been working for the past 10 years while the father is also no longer in employment. Mr Lin stresses that neither party has any immediate prospects of resuming employment. 207.Mr Lin refers to the comments given by Deputy District Judge Tse Ching (as she then was) in CWYW v CCH, FCMC 124/2013 (unreported, 19 August 2016),
208.In my view, the comments made by the learned judge must be seen within the context of that particular case or to be more specific, within the context of that particular child and his or her parents. 209.In her 3rd affirmation, the mother described the lives and schooling of G in both Guangzhou and Toronto. It is mentioned that back in Guangzhou G was strong in academic. She had been the students’ representative for a couple of times and had been chosen to represent the school in the Mathematical Olympiad. G is also described to have had a profound interest and talents in music and sports; hence, she started learning violin and piano in her tender age. She was able to make herself the principal violinist of the Guangzhou schools’ orchestra and had been nominated by the school to perform together with the Vienna Boys’ Choir. G is also said to be strong in swimming. She had been for a couple of times nominated to represent her school in swimming contests. On the part of the father, he said in his affirmation of 26 February 2018 that he was happy to learn of G’s talents. 210.The mother further detailed G’s learning in Toronto in her 4th affirmation of 27 April 2018. G is said to have a great passion for swimming, piano and violin. The child dedicates her time in training and practice by getting up early out of her own volition. As from 2018, G has been admitted to the Young Artist Programme of the Royal College of Conservatory and was awarded a scholarship covering up to 50% (about CAD 4,685) of the tuition fees. 211.When being questioned by Mr Lin as to the choice of extracurricular activities in Toronto, the mother was able to return a sensible answer. By way of illustration, when being asked why the mother cancelled the Super-maths activity offered by the school and enrolled G to a private Mathematics course, the mother’s reply was that according to G, the school course was something like a reception class; it was too rudimentary for her. 212.The decision by the mother to put G into an expensive private international school rather than in a public school attracts criticism too. It was suggested by Mr Lin in cross-examination that the mother and G should have moved to a better school zone so that G could enrol herself in a public school. 213.As I said, the school fees are not very affordable. The mother accepted that G could have changed to a public school. She had discussed this issue with G who preferred to stay. Another reason is that G is strong in academic. Her academic performance is on the top amongst her peers. When G was in Grade 6, her mathematics was already up to Grade 10. G is going to represent her school in a nationwide mathematics competition. Unlike public schools where everyone is following the same curriculum, the mother said G’s school could make appropriate adjustments in order to further her academic potentials. 214.G’s aspiration is to get into the Harvard College. For this reason, she took G to Boston to see some high schools. This has not been challenged by the father. 215.I have listened carefully to the mother’s evidence. I accept G is an outstanding child with talents. I can see the reasons behind what the mother has been doing as regards G’s schooling and extracurricular activities. 216.The mother and G had been to Whistler in the British Columbia, Ottawa, Niagara Falls and Boston and the Mainland for holidays. 217.I accept there should be medical insurance to cover G since the public medical service does not cover dental treatment. However, there is no evidence that G requires any psychologist consultation now. 218.As far as ahead the eye can see, her monetary needs would increase as she grows and her needs are changing. It is in my view wholly inappropriate to budget by way of prescribing how many classes per week for a particular activity or whether a particular activity should continue. I have no doubt that what should be strived for is to achieve a fair and realistic outcome by the application of broad commonsense to the overall circumstances of this case. 219.It should be recognized that this case is never a “billionaire defence” case – not even when the father was having his high-income job. In Hong Kong’s context, with all respect to the father, I think he cannot be regarded as overly rich. The evidence before me is that the lifestyle of the father and his family was never lavish or opulent but rather typifies that of upper middle class families in Hong Kong – living in decent but not overly exclusive locality and children receiving international and overseas tertiary education. There was no frequent dining at high-end restaurants, travelling on business class and staying in 5-star hotels on vacation. While for its own reasons it is more and more common in Hong Kong for professionals and upper middle class families to put their children to international schools I am sure the same cannot be said for their counterparts in Canada. The reality is that the father is approaching his retirement age and in all likelihood would not be able to return to a job as lucrative as before. At the same time, though neither party has adduced or attempted to adduce any relevant evidence before me, I think it must be right to say that the cost of living in Toronto is much higher than that in Guangzhou and again, in broad terms, it is somewhat comparable to that of Hong Kong, except perhaps for the cost of housing which Hong Kong should be way higher. In real terms it means the living standard that was enjoyed back in the days in Guangzhou could not be replicated in Toronto. 220.G’s current personal expense alone is said to amount to CAD 9,089, which means roughly $53,530. Inclusive of her share of the general expenses, it would mean CAD 11,900 or $70,086. With all the above considerations in mind, I am convinced that overall speaking G’s personal expense is on the high side. While I can see there are reasons for G to remain in her school and continue with her learning in music and swimming, the same have to be kept within a reasonable budget which essentially means prioritizing which courses are to be preferred or which to be scaled down. A reasonable budget would also mean that when more money is spent on G’s education and learning there would be less money available for other expenses. By way of examples, where it is decided that the Summer Music Camps in Tsingtao and Germany should continue there would necessarily be fewer trips of other nature. Where G is to continue to stay in the present school then whether or not she is living in a good school zone is not a significant factor. Consideration could be given to move to a less expensive area thereby saving a few hundred dollars (Canadian) or spend less on dining out or other expenses. The list is non-exhaustive. I believe there are numerous ways of doing this. Doing the best I can, I assess the reasonable needs of G at CAD 9,200 (or $54,184). The breakdown is as follows. Monthly Expenses
221.A sum of CAD 580, being the Child Tax Benefit, should be deducted from CAD 9,200; this gives a net sum of CAD 8,620 (or $50,768). What is the maintenance payable by the father? 222.I shall deal with this ultimate question in 2 parts. First, whether the father has to make any contribution for the maintenance of G on the top of the Mainland Maintenance Order? Secondly, if the answer is in the positive, what is the amount payable by the father? Whether the father has to make any contribution for the maintenance of G? 223.This issue calls for the consideration of the father’s allegation that he had an agreement with the mother on the maintenance of G. Alleged Agreement for the Maintenance of G 224.As I mentioned in [37] above, as a parallel to the Mainland proceedings for the custody of G, the father also commenced the Mainland Restitution Proceedings claiming for the return of all the 3 pieces of property. The father failed in his claim. 225.I agree with Mr Yim that the father’s claim is inconsistent with the agreement so alleged by him. I have read the Mainland judgments. The Mainland court in the first instance seemed to have agreed with the father that the monies provided to the mother were not gifts and that there was a joint investment agreement as alleged by the father; and accordingly, its decision was based on the sources of contribution of the funds for the purchase and mortgage payments of the properties. On appeal, my reading of the judgment is that the appellate court (ie the Intermediate Court) overturned the findings by the first instance court that there was a joint investment agreement. The appellate court went so far as to say that there was virtually no evidence in support of the allegation as contended by the father. That being the case, the father’s stance that he is not inviting this court to come to any findings of fact regarding the alleged agreement is not a surprise at all. If he had done so, he would be trying to have a second bite of the cherry. 226.Even if there were an agreement between her parents when G was merely an infant, MB v KB, supra, referred to in [61] above is the clear authority that no adult compromise can oust the jurisdiction of the court. The requirements of children, as they grow, in turn require the court to preserve its jurisdiction for their protection. 227.At trial, both parties were taken to the relevant events. To me, these matters are relevant to how G’s living expenses should be borne and shared by her parents. 228.The father affirmed that beginning from about 2004 they started to invest jointly. The father transferred monies to the mother from time to time so that she could invest jointly on their behalf. Such investments included time deposit, stocks and finally landed properties. The mother subsequently purchased 3 pieces of property in Guangzhou. Although the properties were purchased in the mother’s sole name, it was agreed between them that the profits generated by the investment would be used for further investment and any gains would be shared between them equally. 229.The father said after the birth of G, in order to improve the living environment of G, he funded the mother to purchase the Ersha Island Property in 2008. That was the 3rd and the last property. 230.The father said after their relationship was made known to his wife in about mid of 2008, their relationship ended but they continued to have discussion over the care and upbringing of G. At that time, the father proposed the monthly income generated by their joint investment should first be used to meet the monthly expenses of G. He also suggested to the mother that they should each hold a ¼ share of the joint investment and that G be entitled to a ½ share. The father said the mother did not raise any objection to the suggestion. He added that the mother should have had more than sufficient income from the joint investment to meet the monthly expenses of G. On this point, it is rather perplexing to note the father was reported to have mentioned to the Social Investigation Officer that since the mother was perennially out of work he worried that in the long run the mother might not be able to manage financially: §28 of the Report. 231.The father, in his affirmation of 5 November 2012, said he had detailed discussion with the mother in one summer night of 2008. He proposed to give priority (優先) to the living of G in the use of the rental income of the properties; and the properties would be owned by them, with G having half of the share. The mother did not raise any objection at that time. He repeated the same in his affirmation of 26 February 2018. 232.The mother denied there was ever any agreement as alleged. She accepted that there were money gifts in the region of RMB 4 million but all the purchases were her own decisions and for her own benefit. Discussion 233.At the time when the father said he had the final discussion with the mother, the mother was jobless without any income and G was about one-year-old. It is true that the mother owned 3 pieces of property but the 1201 Property and the Ersha Island Property each was subject to a mortgage and the mother and G were residing in the Ersha Island Property which was undoubtedly the most expensive one. The mother later on had to economise by moving out from the Ersha Island Property and have it rented out. The mother said after deducting the mortgage payments and the outgoings the net rental income from the 2 properties was just RMB 14,790 per month. In fact, according to the findings by the Mainland courts, during the period from November 2004 to May 2014, the mother received a total rental income of RMB 1,952,560 but she had to make mortgage payments of RMB1,868,489. As such, there was only a surplus of RMB 84,070 over the course of 115 months (around 9.5 years). This gives a monthly sum of just RMB 731 for the use of the mother. 234.The father said in his affirmation that he was surprised to learn of the mother’s sale of one of the properties in the present proceedings. In my assessment, there was no reason for this response. The father was admittedly well familiar with the real estate situation in Guangzhou. What is more, at least one of the properties was a project of the father’s company in which I have no doubt he was greatly involved. It was also in part due to the reason that he was familiar with the situation in Guangzhou that his family members made the suggestion of pooling their monies into buying a property in Guangzhou. He agreed he was aware of the situation regarding mortgage payments and rental receipts when he discussed with the mother in the summer of 2008. In fact, the father had to accept that the rental receipts could not have been sufficient for the mother and G’s living and so the mother unavoidably had to sell some of the properties for making their ends meet. As I see it, this fact is as plain as the nose on one’s face. The mother and G were living in the most expensive property, ie the Ersha Island Property. It was however not the father’s evidence that there were discussions there and then regarding whether the mother should be prepared to economise by moving out. If the meeting was meant to be a serious one – it must have been because by that time the parties had already separated and they were planning for the care of their daughter in the years ahead - it is hard to believe there was no discussion on which property is to be used as a place of abode and which were to be leased out, how the mortgage payments were to be met and most importantly, given that the mother was not working, how the living expenses of G could be met. 235.Further, if some or even all of the properties eventually have to be sold for G’s livings, one wonders how G could be given half of their interests. It is significant to note that in the father’s very first Mainland proceedings in the Siming Court seeking the custody of G, he also sought a monthly maintenance of RMB 2,000 to be payable by the mother which on any view was a humble sum. Again, one wonders if there were such an agreement as alleged, why the father would have sought such an insignificant sum. 236.Thus analysed, the father’s assertion regarding the agreement is clearly untenable. This is the stance consistently maintained by the mother. I have also demonstrated that even if there were such an agreement it would not be a bar against the court’s jurisdiction. Once this issue is cleared and with the conclusions I have reached regarding the financial resources of the parties and G’s reasonable needs, in my judgment, it is beyond doubt that the father has to make contribution to the maintenance of his daughter. 237.I now turn to the subsidiary issues. Carer’s Allowance 238.The mother is claiming for a carer’s allowance payable by the father until G reaches the age of 15. The burden rests on her to satisfy the court that she is entitled to it. 239.It is well settled that the court may augment the periodical payments order for a child to include an allowance for the mother, especially if the mother has to give up work or is unable to work because she has to look after the child: Haroutunian v Jennings (1980) 1 FLR 62; WGL v ASB (Child Maintenance under the GMO) [2013] 1 HKFLR 391, at [194]; see also, K v W (Children – Removal from Jurisdiction) [2006] 2 HKFLR 292, T v J FCMP 38 of 2007 (unreported, dated 26 August 2008); H v S FCMP 70 of 2008 (unreported, dated 29 April 2009) and IDC v SSA [2013] HKFLR 61. 240.On the approach to be adopted, Thorpe LJ said the following in Re P (Child: Financial Provision), supra,
241.The approach was followed in IDC v SSA, supra, where HH Judge Bruno Chan said,
Guangzhou 242.The mother gave evidence that during her employment her remuneration was about RMB 530,000 per annum. After she had left her job in about April or May 2008 she was approached by a head-hunter with the prospect of securing a job of about RMB 1 million per annum but she turned it down. She chose to remain the carer of G on a full-time basis rather than going back to work and hiring a maid. She has been determined to devote her time to walk with G. 243.The father doubts very much whether the mother would have been able to obtain a job with a yearly remuneration of RMB 1 million. The mother has exaggerated her importance and the nature of her duties. He relied upon a letter issued by their common employer which stated that in 2008 the mother’s basic wages was merely RMB 300,000 per annum. 244.There is however another letter dated 7 January 2008 issued by the same employer certifying that during her employment the mother occupied the position of Director of Administration and Personnel (行政人事總監), Assistant to General Manager (總經理助理) and Assistant General Manager (副總經理). It is plain that the mother was highly appraised of her performance and had been dignified as “an outstanding manager” (“優秀管理者” 光榮稱號). The authenticity of this letter has not been in doubt and its contents have not been subject to challenge. 245.It should also be noted that while the letter relied upon by the father stated the mother’s basic wages was RMB 300,000, her employment contract clearly provided that on the top of basic wages the mother was also entitled to half-yearly and yearly bonuses. 246.I accept that apart from what the mother said in court there is nothing in support of her claim that she was offered a RMB 1 million job. I consider it was unlikely that the mother could have had this job. Yet, on the evidence before me, I incline to accept what the mother said about her remuneration of RMB 530,000. 247.It has been submitted by Mr Lin that the mother is in a better financial position than the father and she has made no effort to economise and reduce expenses. The father should not be held to ransom under the disguise of “benefit of the minor”. It is because of her financial resources that came from the father that have made it unnecessary for her to work rather than she had to give up her work opportunity in order to take care of G. Instead, she lived comfortably in Guangzhou. The mother was not economical. She could have reduced her expenses rather than asking for allowance. For instance, while in Guangzhou the mother frequently dined in hotels and spent on manicure. 248.When the mother left her job, G was only about 8 or 9 months old. However comfortable the mother’s lives might have been in Guangzhou as Mr Lin described, I think it must be right to say that taking care of an infant and later a toddler single-handedly is a demanding and tiring task draining one’s physical and mental strengths around the clock. I accept it was a sacrifice on the part of the mother to forgo her career for the benefit of G for which the father should be grateful. 249.For these reasons, I agree that the mother should be given an allowance when they were in Guangzhou. 250.The mother is seeking a monthly sum of RMB 9,700. Even according to the former employer’s information (which is not in dispute) the mother’s annual basic wages in 2008 was RMB 300,000, or RMB 25,000 per month. RMB 9,700 is therefore merely about 39% of her previous basic wages which I consider is a reasonable sum and I so assess. Toronto 251.The mother has remained the sole carer of G after their emigration to Canada. Except for a couple of months when the sister was in Canada assisting the mother while she was receiving treatment for her cancer, the mother has been taking care of G single-handedly, including driving G to school and activities. 252.Mr Lin raises the point about the mother’s use of a luxurious imported SUV. In cross-examination the mother responded by saying that she was mindful of safety because Toronto is very snowy during winter times; she needed a more reliable vehicle and in fact, overall speaking, as a package it was not as expensive as that suggested by Mr Lin. 253.G is now a teenager. I agree with Mr Yim that given G is still in her formative year, it is essential for the mother to remain closely involved in taking care of her. Given the unforgiving weather in the winter of Ontario and that public transportation in Toronto may not be as extensive and convenient as other places like Guangzhou, I accept that the mother has to drive G around for the purpose of schooling and activities. I further consider that even when G comes to the age of 15, she would still not be able to drive on her own and thus, would still, to some extent, have to rely upon her mother in moving around. On this view, I consider that the length of the mother’s claim for carer’s allowance is reasonable. 254.The mother admitted that due to her qualification and low proficiency in English, she may not be able to find a job with good income in Toronto. At the same time, I have not lost sight of the state of her health after what anyone would consider a terrible illness. I consider at most the mother may be able to secure some clerical jobs in business serving the Chinese community; and, probably because of her health, on part-time basis. Her situation in Toronto is therefore very much different from that in Guangzhou. It is rather unfortunate that neither party has adduced any evidence on the likely earnings that mother may be able to achieve in Toronto. For the reasons that I have set out, it is apt to err on the lower side. Doing the best I can I quantify the carer’s allowance at a modest sum of CAD 1,000. Backdating 255.The mother seeks to have the maintenance to be backdated to July 2012 when she commenced the present proceedings. This can be done as our statutory framework allows the court to give a lump sum order for the immediate and non-recurring needs of a child or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining a child before the making of the order to be met, or for both: see Section 10(2)(a) of the Ordinance in [77] above. Significantly, it should be noted that such a lump sum order could be made in respect of those liabilities or expenses reasonably incurred even before the application was made. That is to say, where appropriate, the maintenance could be backdated up to the birth of the child. 256.As is the power to give a maintenance order under section 10(2) of the Ordinance, backdating is a matter of discretion of the court; such power to be exercised judicially. Speaking of backdating, HH Judge Barnett in the English case of H v C [2009] EWHC 1527 (Fam), [2009] 2 FLR 1540, [2009] Fam Law 802, had this to say,
257.When the mother made her application G was already 5 years old. Prior to this, the mother had supported G on her own. In my view, it is reasonable for the mother to have asked for the maintenance to be backdated as from the date of her application. The present case bears some resemblance to H v C, supra, where both of the mothers have had to fight tooth and nail over many years for a relief on behalf of their child. Further, I am in agreement with the learned judge. I do not see anything wrong or unjust even if the backdated order contains an element of compensation. What is the amount payable by the father? 258.For the last 12 years the mother has been exhausting her assets. Being the full-time carer of G, she has not been able to work. Even when she could be released of some of her duties when G is older and that she is able to get a job, I believe she would continue to rely a great deal upon her assets to keep her going. The mother has only one piece of property left, ie the Ersha Island Property. This property is still subject to an outstanding mortgage with monthly instalment of around RMB 19,000 to RMB 20,000. The outstanding mortgage loan was roughly RMB 1 million at the time of the trial. The rental income and the monthly mortgage payment would therefore offset each other. 259.Mr Yim refers me to what Thorpe LJ said in Hill v Morgan [2007] 1 WLR 855 (CA) at,
260.I agree with Mr Yim that given the mother’s age, her health condition, the fact that she, as a single parent, has been out of the workforce since 2008 and she has to take care of G, she should be afforded a chance to keep this property instead of liquidating it, in order to afford her a degree of financial security and provide for her future. 261.The father is liable to pay an agreed cost of $2.95 million on the Jurisdictional Proceedings at the Court of Appeal and the Court of Final Appeal. On the top of that, the father is also liable to pay the costs of the Jurisdictional Proceedings in the Family Court the quantum of which is yet to be agreed or taxed. At present, the figure being claimed by the mother amounts to about $427,700. In addition, it has been stressed by Mr Lin that the father has paid his own legal costs in respect of the Jurisdictional Proceedings in the total sum of $2,422,800. This does not include his costs in respect of the maintenance issue which are estimated at about $1.6 million. It is Mr Lin’s submission that the court should take these liabilities into account when considering the father’s share of his responsibility. He even goes so far as to suggest that the mother’s assets should increase correspondingly upon receipt of the payment. 262.It is true that the mother would recover costs from the father out of the Jurisdictional Proceedings but these costs are assessed on party and party basis. I am told the mother’s own bill amounts to $3,518,000. The mother has paid her solicitors $820,000 only so the bulk, if not all, of the payment would go to her solicitors to cover the deficit. It was the father’s own conscious decision to use his money in fuelling all these litigations. I take the view that little weight should be given to these liabilities. To do otherwise would be unfair to the mother, compensating the father for his costs at the expenses of the mother. 263.During most of the time when G was in Guangzhou her father was a high income earner. This fact should carry weight when it comes to how much the father should be held to be responsible because that is what he should have paid at that time. To do otherwise would be unfair to the mother and in some ways penalizing the child. I am conscious that the father lost his job some 9 months before G and her mother left for Canada for good but at the same time it should not be forgotten that the father had not paid any maintenance before the commencement of the proceedings. 264.I am conscious that the father is no more a high-income earner. Yet, the assets at his disposal are assessed to be at least 35,956,000 and further that, the father should be able to be economically active and financially supportive of his family. Apart from those in the nature of capital his monthly outgoings are not substantial. It should also not to be forgotten that in a couple of years’ time he would have a stream of income from his heavily invested insurance and annuity plans. While the father is older than the mother, his overall financial situation is better. 265.At the same time, I acknowledge that the mother is not a person without any means. It should be recognised that the objective facts are a great portion of her wealth was originated from the father and she has been making use of these financial resources providing G with a quality living and education. On that view, the father cannot be said to have not made any contribution albeit an indirect one. 266.Considerations have to be given to the fact that the mother has been confining her claim to the maintenance of G since her application and she has not claimed any costs incurred in setting up a home or on relocation to Canada. 267.The exercise of assessing a child’s needs and determining how the needs are to be shared is never an exact science. Looking at this matter in the round, I consider that across the board the father should be responsible for 60% of G’s needs. 268.I have assessed G’s net current needs at CAD 8,620 so it means the father should be responsible for CAD 5,172. On the top of this is the carer’s allowance of CAD 1,000. This totals at CAD 6,172 and should be backdated from September 2017 to July 2020 (a total of 35 months). This gives a total of CAD 216,020 or $1,272,271. 269.When G reaches the age of 15, the monthly sum payable by the father shall be reduced to CAD 5,172. 270.G’s reasonable needs in Guangzhou are assessed at RMB 34,700 per month; so the father has to be responsible for RMB 20,820 plus carer’s allowance of RMB 9,700, hence a total of RMB 30,520. This should be backdated from August 2012 to August 2017 (a total of 61 months). I reckon this is RMB 1,861,720 or $2,204,276. 271.Credit should be given to RMB 350,000 (or $414,400) previously paid by the father. However, since as of now, the Mainland Maintenance Order is not enforceable in Hong Kong, the sum payable by the father under that order would not be deducted from the orders made in this judgment. 272.The back-dated sums are therefore $3,062,147 (($1,272,271+ $2,204,276) - $414,400). I would give a round figure of $3,062,000. This is well within the father’s affordability. Orders 273.For the reasons aforesaid, I make the following orders:
Costs 274.The mother’s financial resources and expenses, whether in respect of those in Guangzhou or in Toronto, have been meticulously scrutinized. Yet, apart from the bashing of the expenses as being exaggerating, excessive and unreasonable, there was virtually no analysis on the part of the father on how much G would reasonably need given her current age and station in life. The father was never able to give any figure, not even a ballpark one, as to what he thinks should be reasonable and sufficient for the maintenance of her daughter. At all times, he insists that as far as this application is concerned, the mother is not entitled to anything. 275.On the other hand, the mother has succeeded substantially with her claims. Normally, costs should follow the event. I make an order nisi that the respondent do pay the applicant the costs of these proceedings, including all costs reserved and with counsel certificate, to be taxed if not agreed on party and party basis.
Mr Eugene Yim and Mr Timothy Lam, instructed by Christine M Koo & Ip, Solicitors, appeared for the applicant Mr Kenny Lin and Mr Lincoln Cheung, instructed by Lo, Wong & Tsui, Solicitors, appeared for the respondent |
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