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Betty Nio v. Nio Joen Tjong and Another

Read the full judgment text of FCMC 297/1972 on BabelCite. This Family Court judgment before Mr. Registrar Jones.

Divorce – Ancillary Relief – Property Division – Maintenance – Matrimonial Proceedings and Property Ordinance 1972 – Petitioner sought ancillary relief for herself and three children. 1st Respondent wealthy businessman failed to disclose assets. Court ordered transfer of 131 Waterloo Road to Petitioner free from incumbrances. Periodical payments of $5,000 per month secured for Petitioner. Periodical payments of $1,500 per month secured for each of Tony and Terry. No order for Roy as over 21 and no evidence of education or training. Petitioner entitled to costs with certificate for counsel. – Divorce – Ancillary Relief – Property Division – Maintenance – Matrimonial Proceedings and Property Ordinance 1972 – Petitioner sought ancillary relief for herself and three children. 1st Respondent wealthy businessman failed to disclose assets. Court ordered transfer of 131 Waterloo Road to Petitioner free from incumbrances. Periodical payments of $5,000 per month secured for Petitioner. Periodical payments of $1,500 per month secured for each of Tony and Terry. No order for Roy as over 21 and no evidence of education or training. Petitioner entitled to costs with certificate for counsel.

Legal issues: Property Division · Maintenance for Petitioner · Maintenance for Children

Outcome: Ancillary relief granted. Property transferred. Maintenance ordered.

Case No.FCMC 297/1972
Court
Family Court
Date—
JudgeMr. Registrar Jones
Case Document
100%Judiciary

FCMC000297/1972

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

DIVORCE JURISDICTION

ACTION NO. 297 OF 1972

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BETWEEN    
  BETTY NIO (otherwise Manggunic) also known as LIE KIEM TENG alias BETTY LIE Petitioner
  and  
  NIO JOEN TJONG also known as MAS MANGGUNIO 1st Respondent
  and  
  LILY CHEE 2nd Respondent

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Coram: Mr. Registrar Jones in Chambers.

Date of Judgment: 7th June 1973

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DECISION

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1. This is an application by the petitioner against the 1st respondent for ancillary relief for herself and the three children of the family.

2. A decree nisi was granted to the petitioner on the 24th February 1973 on the grounds of irretrievable breakdown of the marriage the petition being undefended. The proof of ground was adultery the petitioner finding it intolerable to live with the 1st respondent. The decree has not yet been made absolute although it was ordered to be made forthwith. At the hearing custody of the three children of the family, Roy who is now over 21 years of age, Tony aged 14 and Terry aged 12, was granted to the petitioner.

3. An order for maintenance pending suit was made on the 24th January 1973 for the 1st respondent to pay the petitioner $3,000 per month but apart from one payment he has not complied with this order so that he is in contempt. Accordingly the 1st respondent was not entitled to be heard in these proceedings but Mr. Ching for the petitioner did not press this point so that I have read the affidavits filed on his behalf.

4. Neither party gave viva voce evidence so that the application has been dealt with entirely on affidavit evidence which has not been very satisfactory.

5. The parties were married on the 14th March 1951 in Djakarta, Indonesia and from 1951 to 1958 the parties lived there after which time they moved to Hong Kong. A house in Djakarta was purchased in 1951 at a cost of 50,000 rupees. The petitioner says that as the 1st respondent did not have sufficient funds for the purchase price she gave him some of her jewellery to sell which she estimates was worth the price paid. The petitioner does not know how much the 1st respondent obtained from the sale of the jewellery. The parties lived in this property until 1955 when they purchased a house at Krekot Djakarta where they remained until they came to Hong Kong. The first property was given to on employee of the 1st respondent as a gift.

6. Subsequently the petitioner says that in order to assist the 1st respondent and at his request she sold further amounts of jewellery at various times to provide him with funds until they came to Hong Kong. In addition she says that she sold more jewellery in 1964 to assist the 1st respondent in one of his business ventures. The petitioner estimates that during the marriage the amount of jewellery that was sold by her or given by her to the 1st respondent to sell amounted to about $700,000.00. The petitioner does not say in her affidavits how she acquired the jewellery but the 1st respondent says that during the marriage he gave the petitioner considerable quantities of jewellery which he assesses to be in excess of $500,000.00.

7. After various separations the 1st respondent finally left the petitioner sometime at the beginning of 1971 since which time the parties have not resumed cohabitation.

8. I will deal first with the properties referred to by both parties:-

PROPERTIES IN DJAKARTA

1. House at Sri Widjaja. The 1st respondent says that he gave this property to the petitioner and claims that it is now worth US$100,000. He says that it is occupied by the petitioner's daughter by her former marriage. This is contradicted in the 1st respondent's affidavit of the 31st January 1973 when he says that the petitioner transferred the property to her son-in-law one week after it was transferred to her. The petitioner says that with the authority and in the presence of the 1st respondent and upon his insistence she transferred the house to her daughter and son-in-law as a wedding present. A copy of a Power of Attorney executed in Djakarta was exhibited to an affidavit of the petitioner. The legal effect of this document was not proved by an expert in Indonesian law but it does appear that the 1st respondent who is referred to in the document authorised the transfer of the property. On the evidence before me I find that this property does not belong to the petitioner.  
2. Property at Djalan Krekot 75. The 1st respondent says that it is worth HK$200,000 and believes that it has been given to the petitioner's brother and her mother. The petitioner agrees that the property is in her name. There was no satisfactory evidence available to indicate the present value of the property nor whether the petitioner would be in a position to place it on the market for sale.  
3. Hotel Patria. The 1st respondent says that the petitioner sold the hotel for 60,000,000 rupiahs but the petitioner says that it was sold for 60,000,000 rupiahs. The petitioner exhibited the document under which the property was assigned to her by the 1st respondent in her affidavit of the 17th May 1973 together with a Power of Attorney giving authority to her daughter and son-in-law to deal with it. A copy of a deed of sale that was also exhibited revealed that the property was sold by her daughter and son-in-law for 4,000,000 rupees. I accept the evidence of the petitioner upon this matter.  
4. Hotel in Djalan Monjet. The 1st respondent says that this hotel is worth HK$200,000 with a rental value of US$1,500 per month. The hotel has been requisitioned by the Air Force but the 1st respondent says that the petitioner should have no difficulty in collecting rent from the Air Force. However, in the absence of evidence to the contrary I consider it highly improbable that rent is being paid and I reject the 1st respondent's statement.  

9. On the evidence presented to me it is debatable whether the petitioner has at the moment any material interest in the two properties in Djakarta that remain in her name.

10. It is significant that the 1st respondent in his affidavit of the 10th February 1973 stated that he was making enquiries in Djakarta to substantiate his allegations but that it might take several weeks to do so. Although four months have since elapsed no further affidavit has been filed by the 1st respondent with the result that I am highly sceptical of the assertions that he has put forward and I place little reliance upon them.

PROPERTIES IN HONG KONG

11. It is not in dispute that all the properties in Hong Kong are in the name of the 1st respondent's uncle Siew Chee Hong who holds them in trust for the 1st respondent. The properties are:-

  1. 131 Waterloo Road. The land upon which the house was built was purchased by the 1st respondent in 1962 with the intention that it should be the permanent matrimonial home. The 1st respondent estimates that the present value of the property, which is subject to a mortgage in favour of the Shanghai Commercial Bank to secure a loan for $285,000,00, is $2,000,000.00. The petitioner continues to live at this property with the three children of the family.  
  2. Flat C, 1st floor, Garden Mansion. This property has been sold and the proceeds of sale which were not disclosed were used for the repayment of a loan to the Shanghai Commercial Bank.  
  3. 10 Playing Field Road, 8th floor, Grant Mansion. The 1st respondent resides in this property when he is in Hong Kong. No estimate as to the present value of the property was given.  
  4. Block E, 5th floor, National Court, Kowloon.  
  5. Block B, 1st floor, 116 Argyle Street, Kowloon.  
  6. Flat E, 11th floor, Lee Fung Building. Each of the last three properties has been mortgaged to the Shanghai Commercial Bank to secure banking facilities and interest amounting to $208,000.00 in addition to borrowing notes amounting to $55,000.00. Again there was no evidence available as to the present value of these properties nor documentary evidence verifying the mortgages and loans outstanding.  
  7. 5 lots in demarcation district No. 113. These are agricultural lots which the 1st respondent says are not being cultivated and which are let to a protected tenant at a rent of $500 per month. No evidence as to the present value of the lots was given.  

12. The 1st respondent claims that Block E, 5th floor, National Court and Block B, 1st floor, 116 Argyle Street are let to protected tenants at $680 per month and Flat E, 11th floor, Lee Fung Building at $500 per month.

13. The 1st respondent throughout the marriage has been engaged in various business ventures and there can be no doubt having regard to his means that he has been very successful. Between 1948 and 1951 he was the sole proprietor of a car repair factory which carried on a substantial business under the name Joen Tjong Carosorie Factory. In 1951 he opened a tin factory in Djakarta called Joen Tjong which is still operating although it was not disclosed whether the 1st respondent still has an interest or whether it has been sold. In 1953 the 1st respondent formed another company Mangguni (Prt.) Limited in Djakarta which was concerned with the distribution of aero spare parts and was the main supplier to the Indonesian Air Force. In 1956 the 1st respondent opened a private merchant bank in Djakarta named P.T. Bank Buana Indonesia of which he was the Chairman. Before the parties came to Hong Kong the 1st respondent sold the bank for HK$2,500,000 and with the proceeds he established the business of Mangguni & Co. in Hong Kong which conducted a comparatively large scale business in aero repairs at Kai Tak until it was closed down in 1965. With regard to the business of Mangguni & Co. the 1st respondent claims that the petitioner is well aware that the business failed and that a large proportion of capital was lost. However, he has provided no details of the loss that he says was incurred nor has he given any explanation as to what has become of the tin factory in Djakarta or what happened to Mangguni (Prt.) Limited. Further in respect of Mangguni (Prt.) Limited the 1st respondent says that there was a debt due to the company from the Indonesian Government for US$500,000.00 in respect of materials supplied for a conference hall in Djakarta. He contends that he was informed by the Indonesian Government that there was little likelihood of the debt being paid for many years and that in the meantime he would not receive any interest on this sum. Again apart from this bald statement by the 1st respondent no evidence has been produced to support this allegation.

14. The 1st respondent has emphasised that he derives no income from Hong Kong or Indonesia except from the properties already referred to. However, he says that in the past seven months he has been endeavouring to set up an oil tanker business under the name National Oil Tankers Co. S.A. in Vietnam which if it materialises will provide the 1st respondent with a thirty-three per cent of a seventy per cent interest in the company. His interest in the company is held from the 70% holding of National Management Services A.C. a Liechtenstein Company, in National Oil Tankers S.A., and it is intended that he should receive a salary of US$500 per month from this company. The capital of the company is at present US$50,000.00, but loan facilities have been arranged from the major financing parties for US$31,050,000.00. He says that it is intended that he should be the Director General of the company from which he anticipates that he will receive a minimum salary of US$2,000.00 per month. However, it appears that the 1st respondent may already be operating the business for the petitioner exhibited to one of her affidavits a name card which shows that the 1st respondent is the Vice President and General Manager of the 'Vietnam Oil Tankers Co. S.A.' which company has its head office in Saigon. The name is admittedly slightly different, but the 1st respondent provides no explanation for this in any of his affidavits.

15. The 1st respondent says that when he requires funds he borrows from his uncle Siew Chee Hong to whom he alleges he is at present indebted in the sum of $700,000.00. Again there is no independent evidence before me to support this statement and little reliance can be placed on this assertion.

16. Reference was made by both parties to various cars given to the petitioner by the 1st respondent during the marriage but I consider that this issue is of minor importance and has little bearing upon the matters that I have to determine.

17. The 1st respondent maintains that from 1965 his uncle Siew Chee Hong paid to the petitioner between $5,000 to $6,000 per month for her support in addition to discharging all the outgoings on the house at 131 Waterloo Road. Although outgoings of about $1,400 have been continued to be paid the monthly maintenance payments ceased in August 1972.

18. The petitioner says that she has no income and relies on her daughter and son-in-law in Djakarta for support. In her affidavit dated the 24th January 1973 she says that the cost of upkeep of the house and her family amounts to $5,500 per month. Having regard to the standard of living enjoyed by the parties I do not consider this figure to be unreasonable. In addition to this sum the petitioner says that the running and maintenance costs of the house amount to an average of $2,185 per month. The greater part of this calculation is based upon electricity consumption which she estimates to be $50 per month in winter and $2,500 per month in summer. In the absence of documentary evidence to support this claim I find the amount expended during the summer inordinately high, unreasonable and excessive.

19. The petitioner has been criticised by the 1st respondent for maintaining her former standard of living which he regards as extravagant and contends that she should move from the house in Waterloo Road to a smaller house. This criticism may be well founded in many cases but having regard to the considerable wealth of the 1st respondent it is not so here.

20. Although the 1st respondent says that he has no income from any source in Hong Kong or Indonesia apart from the properties which may be true it appears that he has a substantial income from his business ventures in Vietnam and Singapore which income has not been disclosed. The 1st respondent claims that he is unable to maintain the petitioner in her former standard due to his business failures but apart from his own statement to this effect there is no evidence before me to substantiate this allegation. I am satisfied that the 1st respondent is still a man of considerable wealth and that he has deliberately failed to make a full disclosure of his assets and income so far as this application is concerned.

21. The 1st respondent has not produced any documentary evidence to show the amount of the mortgages or loans that he says are at present outstanding nor has he produced any bank statements which would obviously be material to this application. I am further handicapped in as much as no expert valuations have been made of the various properties.

22. Both the younger children Tony and Terry are still at school but there is no evidence to show what Roy is at present doing. Form 2B 'Statement as to Arrangements for the Children' that was filed by the petitioner said that Roy's education had been interrupted due to the 1st respondent's failure to provide sufficient means, but that it was his desire to complete his academic training by taking a course in business administration at a commercial school in Hong Kong. There is no evidence to show that Roy is receiving a course of education or is undergoing training for a trade profession or vocation nor are there special circumstances which justify the making of an order in his favour.

23. In determining applications of this nature Section 7(1) of the Matrimonial Proceedings and Property Ordinance 1972 provides:-

            'It shall be the duty of the court in deciding whether to exercise its powers under section 4 or 6 in relation to a party to the marriage and, if so, in what manner, to have regard to the conduct of the parties and all the circumstances of the case including the following matters, that is to say-'

24. Five of the seven matters referred to are relevant to this application:-

  (a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
  (b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
  (c) the standard of living enjoyed by the family before the breakdown of the marriage;
  (d) the age of each party to the marriage and the duration of the marriage;
  (e) ....................................
  (f) the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;
  (g) ..........................................................

25. The English Matrimonial Proceedings and Property Act 1970 upon which our Ordinance is based provides a qualification to section 5(1) the equivalent to section 7(1) as follows:- 'and so to exercise those powers as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other'. This qualification has been omitted from section 7(1) although it has been included in section 7(2) which relates to the duty of the court when exercising its powers under sections 5 and 6 in relation to a child of the family. It would therefore appear that this omission is due to an error in drafting.

26. In this case the 1st respondent is a very wealthy business man upon whom the petitioner was entirely dependent during the marriage. There is no evidence that she ever worked or supported herself. Apart from the jewellery that she gave to the 1st respondent and this in all probability had been given to her by the 1st respondent there is no evidence that she ever made any financial contribution to the marriage. The marriage lasted for 20 years before the 1st respondent finally deserted the petitioner during which time the conduct of the petitioner has not been impugned. In fact upon the evidence available this is one of the few cases where the breakdown of the marriage can be entirely attributed to the conduct of the 1st respondent.

27. Taking into consideration the conduct of the parties and all the circumstances of the case I shall make the following orders to take effect upon decree absolute:-

  1. Under section 6(a) of the Matrimonial Proceedings and Property Ordinance that the 1st respondent transfer the property 131 Waterloo Road to the petitioner free from incumbrances.
  2. Under section 4(1)(b) of the Matrimonial Proceedings and Property Ordinance that the 1st respondent do secure to the satisfaction of the court periodical payments for the petitioner in the sum of $5,000 per month to be paid to the petitioner during the joint lives of the parties or until further order.
  3. Under section 5(2)(b) of the Matrimonial Proceedings and Property Ordinance that the 1st respondent do secure to the satisfaction of the court periodical payments of $1,500 per month for each of the two children, Tony and Terry until further order.

28. The petitioner is entitled to the costs of this application with a certificate for counsel.

29. Dated this the 7th day of June, 1973.

  (B.L. Jones)
  Assistant Registrar

Representation: