Hui Shiu Wing v. Cheung Yuk Lin

CACV000040A/1967

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 52 OF 1965

AND CIVIL APPEAL NO. 40 OF 1967

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Coram: J.R. Oliver, Deputy Registrar

Date of Judgment: 22nd March, 1969.

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DECISION

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1. This is a claim for maintenance made by the wife Respondent against the Petitioner following upon a divorce granted to her by the Full Court on the 27th of February 1968. It is to be observed that at the original hearing which took place six months earlier the husband Petitioner was granted a divorce against the Respondent on the grounds of her desertion.

2. This application is framed under Section 28 of the Matrimonial Causes Ordinance, 1967. The Section reads:-

"On granting a decree of divorce or at any time thereafter (whether before or after the decree is made absolute), the court may, if it thinks fit and subject to subsection (3) make one or more of the following orders:-

3. This section follows an identical section in England which was conceived as Section 5(i) of the Matrimonial Causes Act, 1963, and which later became Section 16 of the Consolidated Matrimonial Causes Act of 1965.

4. It has been suggested by counsel for the Respondent that it is open to me to make an order under each of the three paragraphs of sub-section (1), and that, in particular, because of the enormous wealth of the Petitioner, this is a particularly suitable case to order a lump sum and secured maintenance.

5. Counsel for the Respondent also contended that in working out the amount or amounts which I should award I should pay particular regard to (1) the Respondent's fortune, (2) the ability of the Petitioner to pay, and (3) the conduct of the parties.

6. The reasoning of the Court of Appeal in the case of Davis v. Davis⁽¹⁾ is of great assistance in this case. Not only does it lay down the considerations to be applied in determining what lump sum payment (if any) should be paid but the Court in that case further observed that the word "reasonable" which appears in paragraphs and (c) to sub-section (1) of the English Section 16 of the Consolidated Matrimonial Causes Act of 1965 should be construed as being qualified by the words "having regard to her fortune (if any), his ability, and the conduct of the parties" which words appear in sub-paragraph (a).

7. I do not propose to recite at length the facts which have led up to the Respondent being awarded a divorce against the Petitioner, suffice it to say that I have had the advantage of reading:-

(1) The Judgment of the trial judge, Mr. Justice Rigby, who, on the 28th of August, 1967, awarded the Petitioner a divorce against the Respondent on the grounds of her desertion without reasonable cause.

(2) The judgments of the Full Court of the 27th of February 1963 in the form of judgments by the Chief Justice, Mr. Justice Blair-Kerr, and Mr. Justice Mills-Owens whereby the decision of the trial judge was reversed and the Respondent was granted a divorce against the Petitioner; and

(3) The judgments of Mr. Justice Blair-Kerr and Mr. Justice Mills-Owens sitting in the Full Court on the 16th of April 1963 when they refused the Petitioner's application for leave to appeal to the Privy Council.

8. The application for maintenance in this case is supported by the following application and affirmations:-

9. For the sake of convenience I will refer to these affirmations from now on as the 1st, 2nd, 3rd, 4th, 5th and 6th affirmations respectively.

10. ...(illegible) and I quote from the 5th edition of Tolstoi on Divorce⁽¹⁾ The form of the decree does not necessarily reflect the relative guilt of the parties and in deciding what amount of maintenance (if any) is to be awarded .... the registrar must assess the conduct of the parties as best he can, not merely from the form of the decree but also from the shorthand note of the judgment and other admissible evidence. This I have done.

11. I propose first to deal with the Respondent's fortune. In the 2nd affirmation she admits that she possess as jewellery worth approximately $30,000.00, and that she is also the registered owner of 8 shares of $10,000.00 each in the family company known as the Carlton Hotel Ltd. Later in her affirmation she said that between 1960 and 1965 she had received the following dividands in respect of her shareholding.

12. It should not be overlooked that this affirmation was filed on the 15th of November 1966 but the Respondent confirmed in the 6th affirmation that no dividends were received in respect of her shareholding for the years 1966, 1967 and 1968. Apart from these assets she has no other fortune.

13. The Respondent has been living in England since late 1964 and it is to her credit that since leaving Hong Kong she has matriculated and has obtained a diploma in interior decoration. She is now aged 32, and has been living in England almost continuously for four and a half years.

14. A consent order for alimony pendente litem was agreed between the parties on the 5th of January 1967 at the rate or $3,200.00 per month and this sum has been paid by the Petitioner from the date of the service of the Petition on the 25th of June 1966 to the date when the Decree Nisi was made absolute. The Respondent, by virtue of the qualification which she has obtained, does have some earning power.

Since the date of the Decree Absolute the Petitioner has paid nothing to the Respondent and it is agreed that any order which I make will have to take this factor into consideration.

15. The Petitioner's ability to pay is evidenced by the details of his wealth disclosed in the 1st, 3rd, 4th, and 6th affirmations. In particular there were annexed to the 4th affirmation the following audited Accounts.

16. I propose very briefly to summarize the contents of the affidavits filed by the Petitioner which deal with this question of means.

17. The Petitioner is now 35 years of age and it is as a result of the generosity of his father that he finds himself the owner of the assets disclosed in the affirmations.

18. The Petitioner's father bought the land upon which the Park and Shamrock Hotels in Kowloon were built. This land stands in the name of the Petitioner and of his brother. The father later formed limited companies to develop the sites and there were built upon them the two hotels. Shares to the value of 48% in each of these Limited Companies were put in the name of the Respondent.

19. In law he is therefore entitled to a half share of the land upon which each hotel is built and 48% of the share capital in the limited companies known as the Park Hotel Limited and the Shamrock Company Limited.

20. In addition he owns the house and land known as No. 16 Marigold Road, Yau Yat Chuen, Kowloon, and a moiety of and in 1/12th of the land and house known as 83 Woo Sung Street, Kowloon.

21. The Petitioner is the Manager of the Shamrock Hotel and is in receipt of a salary of $3,500.00 per month. He has recently re-married.

22. In the 3rd affirmation the Petitioner admitted, after he had been put to proof by the Respondent in the 2nd affirmation that he was also a partner in the Sun Sun Emporium and that he holds 85 shares of $1,000.00 each in this company. He further admitted that he was a partner in the business known as the Ritz Private Hotel and that he holds 15 shares of $1,000.00 each in this business.

23. It is to the 4th affirmation that the detailed accounts of the Park, Shamrock, and Ritz Hotels are annexed.

24. The principle feature of these accounts and affirmations show:-

25. The subject of the Petitioner's ability to pay maintenance should not be concluded without reference being made to the substantial legal liabilities which he carries in the shape of a very large mortgage to the Hang Seng Bank Ltd. secured on the land upon which the Park Hotel is built. There are also heavy premiums for which he is responsible to the Crown in respect of the land upon which the Park and Shamrock Hotels are built and also in respect of the Woo Sung Street property.

26. The Petitioners counsel quite correctly emphasised the point that although the Petitioner is a man of considerable wealth on paper he is still a minority shareholder in two private limited liability companies and in the case of the larger, the Park Hotel Limited, he enjoys no managerial privileges. Effective legal control is still firmly in the hands of the elder brother and the Petitioner's father.

27. It is significant that no accounts have been produced of the Shamrock Company Ltd. and of the Park Hotel Ltd. for the last financial year.

28. I do not propose to go further into the details set out in the affirmations and accounts as I am quite satisfied from the figures available that the Petitioner clearly has the ability to pay or alternatively he can arrange for payments to be made of reasonable amounts to cover the orders for maintenance which I propose to make.

29. I must now consider the conduct of the parties.

30. The original hearing of this case at first instance lasted ten days, and the proceedings were spread over the period 31st of July 1967 to the 28th of August 1967. The learned trial judge took pains at the end of his judgment to deal with certain aspects of the conduct of both parties so that he might anticipate the difficulties which fall to my lot now that I have to consider this question of the conduct of the parties in relation to any Order for maintenance.

31. He said:-

"          In conclusion, I would only make these observations: They are relevant in the light of any further proceedings of a different nature which may take place between the parties. In cases of this nature it must be very rare indeed to find that the breakdown and failure of a marriage can be attributed solely to one or other of the spouses. This cases provides no exception. The Petitioner admitted that even during the relatively short period they lived together he was out many evenings during the week leaving his wife at home. He said that this was largely due to the fact that he had to attend business dinners and functions of a business nature at which he had to entertain actual or prospective clients. Such business entertainment often included attending nightclubs and similar places of entertainment. Many of these functions were for men only, but he admitted that some of them were mixed parties, and he further admitted that although on some of these occasions he took his wife, on others he could have done so but did not do so. I have no doubt that the Petitioner found the attendance of these so-called business functions a useful pretext to combine business with pleasure. The incident of being found in the car with another woman in March 1960 and, indeed, his lack of any explanation (either to his wife at the time or to this Court during the course of his evidence) to account for his late return to the Kadoorie Avenue flat on the 29th of November immediately preceding the incident which gave rise to the Respondent finally leaving the house, are matters in themselves which could hardly have conduced to furthering a happy relationship between the parties. Whilst I am fully satisfied that his conduct fell far short of cruelty or constructive desertion, I am equally satisfied that his selfish and inconsiderate behaviour and his attitude towards his wife were matters which, although not sufficient to form a valid defence to a petition for desertion without reasonable cause, contributed in no small degree to the breakdown of this marriage. Those are matters which may well be relevant for consideration if and when any application for permanent maintenance is made by the Respondent."

32. It is true that on appeal the finding of desertion by the Respondent was reversed but the three separate judgments of the Full Court are by no means unanimous in the conclusions which they drew from the facts recorded at first instance.

33. Mr. Justice Blair-Kerr after an extremely detailed review of all the evidence was of the opinion that the appeal should be allowed on the grounds that the husband had treated the Respondent with cruelty and that he was also guilty of constructive desertion.

34. The finding of Mr. Justice Mills-Owens was more cautious, he concluded his judgment by saying:-

"It is only after lengthy consideration that I come to a conclusion different from that of the learned trial judge, but taking the view which I do of the husband's words and actions, and their cumulative impact and effect on the wife I feel bound to conclude that his petition ought to have been dismissed and the wife granted a decree on her cross-petition, if not on the ground of cruelty then certainly on the ground of constructive desertion."

35. The President of the Full Court, the learned Chief Justice, had deeper reservations. In the last passage of his judgment, he says:-

36. It is clearly not open to me as Deputy Registrar in considering the conduct of the parties for the purpose of this application to draw my own conclusions as to which party (if either) was entitled to succeed on the facts. This has already been done by the Full Court who have dissolved the marriage in favour of the Respondent.

37. On the other hand it is clearly open to me to absorb all the doubts expressed in the judgment of the Chief Justice and Mr. Justice Mills-Owens.

38. A further refinement is introduced by Mr. Justice Mills-Owens' judgment of the 16th of April 1968 when the Petitioner's application for leave to appeal to the Privy Council was refused.

39. Towards the end of the first page of the judgment, he says:-

"If the decree in the husband's favour were to be restored it would be simply on the ground of her desertion, in circumstances which might well have provided 'just cause'. These are matters to which the Court, or the registrar, will have to pay regard in deciding the application for maintenance, having regard to the duty under section 28 to take account of the 'conduct of the parties' in assessing the amount properly payable."

40. In directing my mind to what is reasonable in relation to the 'conduct of the parties' I have particularly considered the following points:-

41. In addition to considering the conduct of the parties in relation to each other it is now vitally necessary for me to consider their conduct in relation to the style of living they kept up during their marriage.

42. Upon this particular subject Lord Justice Wilmer had this to say in Davis v. Davis⁽¹⁾ at page 126, line I.

"There is no doubt that, in assessing an ordinary claim for maintenance, it is proper to have regard to the standard of living to which the wife was accustomed during the marriage; that appears from the dictum of LORD MERRIVALE, P., in N. v. N.⁽³⁾, which was cited and followed by SACHS, J., in Schlesinger v. Schlesinger⁽²⁾, I see no reason why the same should not apply to a claim made under the Act of 1965 for a lumpsum payment. If the wife has been accustomed during the marriage to live in a luxuriously appointed house, I think that she is entitled to ask for a lump sum payment of such an amount as will provide her with a standard of living commensurate with that to which she has been accustomed. I use the word "commensurate", for it must be obvious that she can hardly expect exactly equivalent accommodation; it would be not "reasonable" to award enough for that.

43. And later in the same case at page 127, line 9, the learned Lord Justice went on to say:-

"Moreover, I think there is force in the contention that the lump sum to be awarded should if possible, be sufficient to leave something over, after establishing a new home, by way of liquid capital which can be used, for instance, for buying a car or for dealing with any emergency which may arise, or even to put by for use on a rainy day."

44. The Petitioner's counsel addressed me at some length upon this vital question of the standard of living enjoyed by the parties before, during, and after the marriage and as this is a matter of considerable importance I will describe what I believe to have been the position.

45. Although both the parties came from families who are more than affluent the standard of living in both homes was, and this is to the great credit of both families, restrained. Both families enjoyed a comfortable existence but certainly no higher than that.

46. All the evidence which is at hand in this case indicates that the lives of the parties and their parents were geared to an engine of a car possessing far less modest proportion than that of a Rolls Royce, and certainly not that of the "Rolls Royce" and standard referred to by Mr. Justice Sachs in the Schlesinger v. Schlesinger⁽¹⁾ case at page 726 line H

47. Before marriage the Respondent had lived with her family in Chatham Road, Kowloon. After the marriage the Respondent and the Petitioner lived in the home of the Petitioner's parents at Marigold Road. They lived there for twelve months and it was only for the last month of the marriage that they moved to a flat of their own in Kadoorie Avenue.

48. It is true that whilst they lived at Marigold Road they had occupied a self contained part of a large house but they were substantially living in the Petitioner's parents home.

49. During this time the Petitioner never received in cash a salary of more than $3,000.00 a month and it was on this salary and upon a charge account at the Shamrock Hotel that he and the Respondent lived.

50. There is no evidence to show that the parties lived extravagantly nor is there evidence to show that the Petitioner wished his wife to live in a "grand manner". It is to the credit of the Respondent that there is no evidence to show that there was any attempt on her part so to live.

51. Counsel for the Petitioner has said that the parties lived economically and unostentatiously and it is this standard of living which the Respondent has lost.

52. I have been referred to awards of maintenance made in the following cases:-

53. All these cases have one common feature and that is they deal with persons of great wealth, but they do not really offer any good guide. Davis v. Davis⁽¹⁾ is probably the most helpful. There can be little doubt that in deciding what sum is reasonable the overriding principle is that each case must turn upon its own peculiar facts not only in relation to the decree obtained but more particularly in relation to the exact form which the maintenance order or orders will take.

54. The Respondent's Counsel submitted to me that I should order the Petitioner to pay a lump sum of $1,000,000.00 and that in addition I should order the Petitioner to secure maintenance to the wife for the period of her life in a sum of $150,000.00 a year or approximately $12,000.00 a month, and that there should be a maintenance order for joint lives in a nominal amount.

55. The Petitioner's Counsel advanced quite different figures. He suggested I should make orders for a lump sum payment of $120,000.00 to $130,000.00 to cover the cost of an apartment and that I should further include in this sum an amount to cover the cost of furnishing and decorating the apartment.

56. The figure should also include the cost of a motor car of average price and further having regard to the style of living from which she was driven the Respondent should also receive maintenance and that in this respect a fair figure would be something in the nature of $3,000.00 to $3,200.00 per month.

57. Having considered all the facts so far mentioned I am of the opinion that the Petitioner should pay the Respondent a lump sum of $250,000.00. This payment should be enough to enable her to purchase a flat in Hong Kong or a small house in England, furnish it, buy a car and have a sum left over for a rainy day.

58. Furthermore it should also provide her with a modest sum of money to provide a working capital to enable her own feet the Petitioner's responsibility to provide maintenance for her may be reduced.

59. I would have fixed this sum at a higher figure but apart from the past conduct of the parties which is always at the back of my mind I pay particular regard to the fact that the Respondent is in possession of some fortune of her own and as a single lady it is open to her to purchase the smallest type of apartment or house for herself albeit suitable to her station in life.

60. Underpinned by her own fortune and by this payment of $250,000.00 the need for maintenance in its turn must turn upon what is a reasonable award in relation to the past conduct of the parties.

61. I therefore order that the Petitioner pay or cause to be paid to the Respondent maintenance for herself in the lump sum of $250,000.00 and also as from the date of the decree absolute further maintenance for herself during their joint lives until further order at the rate of $60,000.00 per annum payable monthly, of which two-thirds of this sum is to be secured to the Respondent for her life or until further order on security to be agreed or referred to the Registrar in default of agreement.

62. The Petitioner will pay the Respondent's costs of this application, and I certify that this is a suitable case for a certificate for counsel.

63. The award for maintenance will date back to the Decree Absolute.

Representation:

(1) Davis v. Davis 1967. L.A.E.R. 123.

(1) Tolstoi. The Laws & Practice of Divorce 5th Ed. p.144.

(1) Davis v. Davis 1967. 1. A.E.R. p. 123 and 126 (I)

(2) Schlesinger v. Schlesinger 1960. I.A.E.R. 721.

(3) N. v. N. 1928. A. E.R. 462.

(2) Gilbey v. Gilbey. 1927. p.197.

(4) Hulton v. Hulton 1916. p.57.