Hui Hon Kit v. Leung Yuet Ming

CACV000063/1994

1994,No.63
(Civil)

IN THE COURT OF APPEAL

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Coram: Hon Penlington, J.A., Liu and Wong, JJ. in Court

Date of hearing: 12 July 1994

Date of delivery of judgment: 12 July 1994

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J U D G M E N T

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Penlington, J.A.:

1. I ask Liu, J. to give judgment of the court.

Liu, J.:

2. The husband petitioned for divorce. Before the hearing, Deputy Judge Gill awarded $3,000 per month by way of maintenance pending suit to the wife and $2,000 to each of the three young children as interim maintenance. The total award stood at $9,000 per month. The petitioning husband felt aggrieved and from that determination of the Deputy Judge he now appeals.

3. We have been told that some evidence heard by one judge was subsequently incorporated by the Deputy Judge for the purposes of the instant determination, the subject matter of this appeal. That is evidently a practice highly undesirable, which ought to be avoided at any cost. However, counsel for the appellant concedes that the determination of the Deputy Judge is valid and enforceable, constituting a proper matter for the present appeal.

4. Four grounds are mounted against the determination of the Deputy Judge. I propose to deal with them in the same order as they are put.

5. First, it is said that the award is unreasonable in the circumstances. In this day and age, $9,000 in terms of quantum for four cannot be said to be unreasonable. The need of the wife and the children for proper support was accordingly assessed by the Deputy Judge. Afterall, even the public assistance granted to the wife and her three children comes to $8,281 per month. However, the crux of the matter is whether the Deputy Judge awarded the proper support to the wife and the children within the husband's means.

6. We are reminded by counsel for the respondent that the award made by the Deputy Judge should not be varied unless it is shown to be plainly wrong. Davis v. Davis, [1967] P.185.

7. The husband gave evidence before the Deputy Judge, the totality of which was that his whole monthly income came to $15,670. In court, he undertook to pay for rates $418, utilities $503.50, management fee $176, domestic helper $3,200, nursery bus and school $3,260. The monthly mortgage payment of $7,161.47 was part of the running expenses of his company and paid by his firm as such before profit. All in all, the mortgage payment aside, it came to about $7,557. $15,670 less $7,557 would yield a figure of $8,113, and that is the amount which the husband has available for himself, his parents and the wife and the children. The husband was not cross-examined and we are to abide by the evidence that he has given about his means. The $9,000 award made by the Deputy Judge together with his own maintenance and the items of expenditure he has undertaken to pay ($9,000 + $7,000 + $7,557 = $23,557) would far exceed his total monthly income. His $15,670 monthly income cannot even cope with the $9,000 award and the items of expenditure alone ($9,000 + $7,557 = $16,557).

8. The liability so thrust upon him would take his responsibility beyond his means on which no cross-examination was conducted. The award made by the Deputy Judge failed, in our view, to take into account the husband's admitted ability to pay. We are not prepared to disturb the award granted in favour of the wife of $3,000 per month. But we would interfere by reducing the award to each child from $2,000 per month to $1,000 per month, all awards to commence from 1 March 1994. That would bring the total award down from $9,000 to $6,000 per month, within the unchallenged available balance of $8,113 in the hands of the husband. That disposes of Ground 1 of the Grounds of Appeal.

9. The 2nd Ground of Appeal complains of the failure of the Deputy Judge to make any finding on the $310,000 withdrawn by the wife from the husband's company's account in March 1992. Much is advanced on behalf of the husband. It is submitted that the Deputy Judge had failed to deal with this episode, particularly when it was incredible for this $310,000, together with other funds, to have been allegedly spent by the wife in a short period of time. That matter was disputed before the Deputy Judge as it is disputed before us today. The Deputy Judge was, in our view, entitled not to attach significance to the amount in dispute, particularly when the wife had managed to persuade the Social Welfare of her eligibility to public assistance and procure a grant of $8,218 per month. We find no substance in Ground 2.

10. Turning to Ground 3, counsel is critical of the excessive reliance said to have been placed by the Deputy Judge on the grant of public assistance in favour of the wife and the children of the family. Suffice it for us to say that it has not be shown that the Deputy Judge was unduly influenced by the public assistance so given to the wife and her young family. That disposes of Ground 3. The last ground is a general ground which falls with the others. We do not find it necessary to deal with that ground separately.

11. In conclusion, the appeal is allowed in part. The maintenance pending suit of $3,000 per month awarded by the Deputy Judge is to stand. The award of interim maintenance at $2,000 per month for each of the three children of the family be reduced to $1,000 per month and to that extent, the award of the Deputy Judge is set aside and that part of the Deputy Judge's order be substituted by an order that the interim maintenance payments to each of the three children of the family be at $1,000 per month, also to run from 1 March 1994. To that extent the appeal succeeds.

(Costs not being sought)

Penlington, J.A.:

12. We order accordingly with no order as to costs.

Representation:

Miss Elaine C. Longmore, inst'd by M/s Lo, Wong & Tsui, for Appellant/Petitioner

Miss Pamela Cheng inst'd by M/s W.K. To & Co., for Respondent/Respondent