Lam Fan Kwok Fun v. Lam Tin Pui

HCMP000800/1981

M.P. 1981 No. 800

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

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Coram: Hon. Power, J.

Date of Hearing: 23 May 1984

Date of Delivery of Judgment: 11 June 1984

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JUDGMENT

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1. In this matter the applicant Lam Fan Kwok Fun is asking that an order made by this Court dated the 16th November 1981 be varied and that the Respondent be ordered to pay to the Applicant a periodical payment of $1,500 each month for the maintenance of herself and $2,250 each month for the maintenance of each child.

2. In the original order I ordered that the Respondent paid to the Applicant $850 each month for the maintenance of each of the children, I made no order with regard to the Applicant as I was satisfied that during the times when the parties resided together she had worked and that she was continuing to work and to earn a wage of $2,200.

3. It is the case for the Applicant that the circumstances have now materially changed and that she, being no longer able to obtain employment, should be paid $1,500 a month and that because of the rise in the cost of living and because of the increased expense of maintaining the children, the maintenance for each should be increased from $850 a month to $2,250, I will deal firstly with the application for maintenance for the Applicant herself.

4. She said in her affidavit that early in May of 1983 her employment as a garment factory clerk was terminated because of financial difficulties being experienced by her employer, Kong Tung Hing Garment Factory Limited, who were put into receivership.

5. She said that, since her employment had been terminated, she had tried to obtain alternative employment but that, because of her age, education and her desire to be present to supervise her two children upon their return home from school, she had found it impossible to obtain employment which was suitable to the hours when she needed to be available to supervise her children.

6. She said in evidence, at the time of her dismissal she was earning $3,000 per month which could be up to $3,800 if she had overtime, She said that the older child, a girl, attended full day school and the younger child, a boy, attended afternoon school. Under cross examination she said that she had been working for ten years with her employer and that her job had been to handle the certificates required by the Department of Commerce and Industry, These it seemed were Certificates of Origin and Export Licences. She said that she was the only one in the office who dealt with these forms.

7. The applicant was asked to detail the efforts she had made to get employment during the year that had elapsed since she lost her job early in May 1983. She said that she had written more than ten letters to apply for a job but had received no response. She said that the duplicates of the letters were not available and that she did not have the names of the companies to whom she had written as the letters had been addressed to post office box numbers which she had got from newspapers. She said that she had never approached any employment agency or been to the Labour Department. She said that she had made a telephone call to the Labour Department and had told that she was allocated to the Chai Wan district but she admitted that she had never followed up the matter by attending at any office of the Labour Department.

8. She did not suggest in her evidence that she would not, because of the children, be able to take up employment but did say that she would like to be at home to supervise them when they arrived from school and when they were doing their homework. The evidence revealed that the mother and father of the Applicant live nearby and that some of their grand children live with them. I saw both of the children and they were well grown and intelligent and I have no doubt that they would, if their mother was not at home, be capable of going to their grand parent's home.

9. It is material, when considering whether or not the Respondent must be regarded as having an earning capacity, to look at all of the circumstances including the background from which she comes. She said that her elder sister who was married to an owner/driver of a taxi works in a bakery and helps to support her own family. She said her next sister's husband was a construction worker and that her sister worked as a book-keeper. She said that she was the third child in the family and that the fourth child, a brother, used to work in the same company as she did but that since the closing down, he had set up his own business as a garment exporter. She said that his wife worked for a computer company. She said that the fifth child was another daughter and that she worked in the computer department of Watsons and that her husband worked as a sales representative for an air cargo company. She said that the sixth child was a son who was presently in the United States and that the seventh child, who was a daughter, was married with one child and that she worked as a typist and that her husband worked at the airport. She said that the eighth child was another daughter who was single and that she worked as a typist. All of her sisters, married and unmarried, with or without children, were gainfully employed.

10. Giving full weight to the responsibility she has towards the children, I am nonetheless satisfied, bearing in mind the background from which the Applicant comes and the fact that she worked throughout her married life, that she must be taken to have an earning capacity. I am satisfied that she has not made any real effort to obtain employment and that I must, therefore, take this earning capacity into account when deciding whether her husband should be called upon to pay her any sum by way of maintenance. I was urged by Mrs. Lui, for the Respondent, to put her earning capacity at $3,800 a month which was the amount which she was able to earn with overtime in her former employment. I consider, however, that it would not be fair to take the overtime into account in this regard and I, therefore, approach the matter upon the basis that in her last job, she was able to earn $3,000 per month. I was asked by Miss Lau, for the applicant to fix a lesser amount as her earning capacity upon the basis that she was only able to earn this amount because she had 10 years seniority in the factory. I consider that some weight should be given to this submission in that it is likely that she would not be offered an amount as high as this in a new job. I am satisfied that she must be held to have an earning capacity of between $2,000 to $2,500 per month. This is about the amount which, according to the figures which she placed before the Court, she would need for her own maintenance. It is to be noted also that she has a potential income from a property which she owns which is presently occupied by her mother and father. She owns half of this property and receives no rent therefrom. It is suggested that she is only fulfilling the duty which she owes to her parents by allowing them to remain in the property without paying any rent therefor. There is some force in this suggestion. However, it seems to me, when one takes into account that all of her brothers and sisters are working and that the youngest of them and some of the children of the others reside with the grand parents, that she is contributing much more than her share in this regard. If she elects not to take advantage of a potential source of income, to which she is entitled, in order to benefit her parents, she is in no position to urge that her entitlement thereto should not be taken into account when making a claim against her husband. I do not consider that it would be proper to make an order the effect of which would be to require the husband to bear the burden of contributing this measure of support towards the upkeep of his wife's parents. It is not, however, necessary to consider this matter in any more length as the wife's potential earning capacity is enough by itself to disentitle her to any payment of maintenance by the husband.

11. Before leaving the claim of the wife, I think I should remark upon the evidence that she has been forced to borrow considerable sums of money to support herself over the past year. She said that she borrowed $10,000 from a Mr. Mok Yuk Ming and $15,000 from a Mr. Chow Wai. She also said in her evidence that she had borrowed $25,000 from her elder sister. Mr. Mok and Mr. Chow both made affirmations swearing that they had lent the money to the Applicant and both were called for cross-examination. Suffice to say that I found both of them singularly unimpressive witnesses and I had no hesitation in rejecting their evidence and that of the applicant as to these loans. Having done so, I am unable to give any credence to her evidence that she has been borrowing large sums of money to pay for the expenses of herself and the children.

12. I turn now to consider the claim for variation of the maintenance being paid to the two children. The Applicant's evidence was that the daughter required maintenance of $1,993 per month and the son required maintenance of $1,726 per month. I am satisfied that the claims itemized by the Applicant in paragraph 9 of her affidavit are inflated. Indeed I am satisfied that in one incident, the Plaintiff has deliberately tried to mislead the Court by falsifying a receipt. This was a receipt for $214 from the Turbo Sports Centre Ltd. Which had clearly been altered from $14 to $214. I reject the evidence of the Applicant that this was done by the shop itself. I have no doubt that the applicant has deliberately inflated the claims which she makes with regard to the children. The Defendant has criticized these claims and has suggested the amounts which he says are appropriate under each head. It may well be that the Defendant is being niggardly in his approach and is, perhaps unknowingly, failing to take into account items upon which the mother does have to expend money.

13. The Court is placed in a difficult position as there is no reliable evidence upon which to arrive at a proper assessment. The mother who could have given accurate figures has inflated her evidence and the father who is, anyway, not in a position to know of all the expenditure has been somewhat niggardly in his approach thereto.

14. The Respondent admitted that that the applicant's figure of $168 for each child for water, electricity, gas and telephone was reasonable (Items 1, 2, 3 & 4).

15. He contested the claim that the total for books for the two children amounted to $220 per month (Items 5 & 6) and said, using the receipts which had been exhibited by the wife to her affidavit, that the average per month for both children was $128. Taking an average of these figures, which I think is the only fair approach, I fix the amount at $170 per month. As the books for the elder child cost almost double those required for the younger child, I apportion this $110 for the elder child and $60 for the younger child.

16. For school uniform expenses, the applicant claims, $85 per month for the older child and $80 per month for the younger child (Items 7 & 8). The father said that he had made inquiries from a school uniform supplier in Wanchai and that from his inquiry he was satisfied that the figure of $12.50 per month for each child was correct. Again in this regard I am satisfied that the mother exaggerated but I do not accept that the figure for school uniforms for the children would be as low as $12.50 per month. I am satisfied that a reasonable estimate would be $50 for each child and I allow that amount.

17. The Respondent accepted that the school bus charges for the children would be $90 per month for the older and $50 per month for the younder (Item 9).

18. The applicant asked for $180 per month to allow her daughter to continue her piano lessons (Item 10). She has been having these lessons for a number of years and I would be loath to refuse an allowance in this regard unless it was absolutely necessary to do so. I will allow the sum of $180 for piano lessons.

19. The Respondent did not contest that the hair-cutting expenses for the two children would be $60 a month, i.e. $30 each (Ittem 11). The applicant made claim for herself and the two children for special Sunday expenses of $245 per month (Item 11) which would allow for a movie and a dinner or picnic once a month. This would be an amount of $80 per month for each child. I consider this is a reasonable amount.

20. The wife made a claim for Chinese New Year expenses and for expenses for other festivals. Some allowance should certainly be made in this regard but I consider that the figure of more than $100 per month (Items 12 & 13) being claimed by her for each child is excessive and will allow $50 per month for each child.

21. I do not consider that Birthday Gifts to the Parents (Item 14) and Birthday and Christmas gifts to Children (Item 15) can properly be included as part of the maintenance for the children. Nor would I allow anything with regard to Medical Expenses (Item 16). I am quite satisfied that the wife has never made any endeavour to use the free medical services provided by the Government to her as the wife of a Government servant. I am satisfied that she has acted wilfully in this regard in failing to minimize the family expenses by taking advantage of a free service.

22. The Applicant is claiming $300 per month from Miscellaneous Expenses for Wing Yin and $40 per month from Miscellaneous Expenses for Chi Chung (Item 17). The Respondent points out that lunch at the school canteen costs $6 a day and he submits that the $200 which he presently pays to Wing Yin is sufficient to cover this item. I accept his evidence in this regard. I am satisfied that $200 is enought to cover this item. When making an order for a payment in that amount on this head I indicate that it is done upon the basis that the Respondent is not required hereafter to make any separate payment in this regard. The Respondent had no quarrel with the amount of $40 for pocket money for Chi Chung.

23. The Applicant's claim for other food expenses (Item 19) when broken down produces a claim of $500 for food for Wing Yin and $800 for food for Chi Chung. The Respondent contests this claim suggesting that it should be reduced by about 1/3. I will make what I consider is a reasonably generous allowance on this head of $400 for Wing Yin and $600 for Chi Chung.

24. The Applicant seeks an allowance of $230 for clothing, apart from school uniforms, for the 2 children (Item 20). This amounts to $2,760 per annum. The Respondent suggests that this claim is grossly inflated and should be halved. Doing the best I can upon the basis of the available evidence, I would allow $180, being $90 for each child.

25. The Plaintiff (Item 21) claims Miscellaneous Expenses of $300. The Defendant understandably queries this claim, pointing out that it is unsupported by evidence. He, however, agrees that some allowance should be made under this head and suggests $100 should be allowed. I consider that $150 would be proper allowance under this head and as the expenses are for three persons, the mother and the two children, I would allow $50 for each child.

26. The Applicant (Item 22) claims $300 per month for Household Appliances Repair and Maintenance. The Respondent contests this claim pointing out that some of the claims which, as evidenced by the receipts, seems to fall under this head were non-recurrent capital expenditures. The Court must, however, bear in mind that the Applicant will have to make capital expenditure from time to time for various household items. I would allow $240 on this head, which breaks down to $80 per month for each child.

27. The total of the above allowance is in the case of Wing Yin, $1,578 and in the case of Chi Chung, $1,348.

28. In paragraph 12 of the Respondent's affidavit, he said, "I have offered to increase the maintenance to $3,000 per month but the same has been rejected by the Applicant." I have arrived at the above estimates of the proper allowances to make without having regard to this offer. I have made them upon a basis which I thought was reasonably generous and they in total amount to $2,926. If the figures are fixed at $1,600 for Wing Yin and $1,400 for Chi Chung which takes them up to the nearest hundred dollars, they total $3,000.

29. I order that the Respondent makes payments in those amounts to the Applicant for the two children. I am satisfied in the circum-stances that I should make no order as to costs. I will, therefore, make an order nisi that there will be no order as to costs except that the costs of the Applicant be taxed in accordance with the Legal Aid Regulations. Respondent is to make payments as from and including the month of May 1984. Respondent is to make payment of $1,300 forth-with being the amount necessary to bring the payments for month of May up to date. Payments thereafter of $3,000 to be made on the last day of each month commencing on last day of June.

Representation:

Miss S. Lau (John, Ku & Tam) for Applicant.

Miss Alison Liu (Fairbairn & Kwok) for Respondent.