Siu Chow Tong v. Siu Cheng Shui Ying
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1. The Respondent wife, now aged 49 years, has applied for maintenance for herself and the sole child of the marriage, Siu Yuen Fat. The latter, aged 18 years, is in regular employment. The claim in respect of him was not pursued at the hearing.
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HCMC000001A/1977 IN THE SUPREME COURT OF HONG KONG HIGH COURT DIVORCE JURISDICTION ACTION NO. 1 OF 1977 -----------------
----------------- Coram: Mr. Registrar Cruden in Chambers. Date of Judgment: 21st July, 1978. Mr. P. Hon of Hon & Co. for Respondent. Miss J. Leong instructed by Clayton Wong & Co. for Petitioner. ----------------- JUDGMENT ----------------- 1. The Respondent wife, now aged 49 years, has applied for maintenance for herself and the sole child of the marriage, Siu Yuen Fat. The latter, aged 18 years, is in regular employment. The claim in respect of him was not pursued at the hearing. 2. The parties were married on 23rd December, 1947 and cohabited until 1971 when the Petitioner left the matrimonial home. On 21st November, 1977 a decree nisi was granted in favour of the Petitioner based on 5 years separation. The question of maintenance was referred to me for determination. 3. In the early years of the marriage the Respondent made financial contributions to the marriage by working as an amah. Subsequently the financial position of the parties substantially improved. This was mainly the result of the Petitioner's work as a cartage contractor working on a contract or sub-contracting basis. 4. From savings from that business, together with $10,000 which the Respondent alleges she contributed from her personal savings, a flat was purchased at No. 303 Queen's Road. I am satisfied that this flat was purchased as the matrimonial home and it was the parties intention that the property would be their permanent home. However, it was purchased in the name of the sole child of the marriage, Siu Yuen Fat, who remains the registered owner. The parties continued to live in this flat until the Petitioner left in 1971. The Respondent and her son have continued to live there ever since and it is their present address. Some time after he left the matrimonial home, the Petitioner on a number of occasions visited Thailand. He thereafter cohabited with a Thai woman in Hong Kong. In 1974 he purchased a flat at No. 36 Man Ying Street 16th floor, Kowloon for $64,000. 5. According to the Petitioner, his contracting business, due to lack of work, no longer exists. On this question his evidence was unsatisfactory. Initially he described himself as a coolie and only subsequently admitted that he had previously carried on business as a cartage contractor. Three days before this hearing he filed an affidavit which simply declared that the No. 36 Man Ying Street property "is no longer owned by me". The affirmation was silent as to when it was sold, why it was sold, the sale price, or the manner in which the sale proceeds were applied. This extreme economy of expression in his professionally prepared affirmation, was consistent with his reluctance to make disclosure when he was giving oral evidence at the hearing. He then orally agreed that he has sold the flat for $120,000. This was the same flat he purchased in 1974 for $64,000. 6. At the hearing he alleged that because of the shortage of work for his cartage business, coupled with his increasing age, he had instead recently started up a poultry business. To do so he borrowed funds, which he calculated totalled $40,000, from friends. He further alleged that earlier this year the chickens and ducks, representing the entire livestock of his new business, all died and the business was now a complete loss. He states he is now unemployed and is in receipt of no income. He also states he is ill. As a consequence he recently sold his Man Ying Street property for $120,000. After discharge of his debts, he states he now only has "a few tens of dollars" left for his old age. He is still cohabiting with the Thai woman and I am prepared to infer that in the event of his present decree being made absolute, it may well be that he will re-marry. He has given no details of the manner in which the proceeds of the flat were applied. He has given no precise details of the debts he alleges he paid out of those proceeds. He has given no precise details of the balance he has retained. As to his present financial position he merely summarises it with the words that he "aspired to be rich but he was not favoured by the lucky star" and now lives from hand to mouth. 7. The Respondent stated on affirmation and confirmed in her oral evidence that she continues to live in the former matrimonial home with her son. He earns $320 per month as an apprentice to a metal worker. He shares that income with the Respondent. In addition, although the flat is owned by her son, she sublets one room which produces a further $300 per month. So the joint income of the Respondent and her son does not exceed $620 per month. She has cash savings of just over $800. I am satisfied that she has made full disclosure of her financial position. 8. In her affirmation she asserted that she needed a further sum of $500 per month from the Petitioner. In her oral evidence she increased this estimate to $1,000 to $1,400. In her oral evidence she also further asked for a capital lump sum payment of $120,000. However, her counsel expressly declined to make any submissions in support of a lump sum. 9. There was evidence that in addition to the tenant, a sworn daughter of the Respondent and a child, also lived at the No. 303 Queen's Road premises. While this is apparently so, I am satisfied that no substantial contribution is made by them to the Respondent, over and above the expenses incurred by them living in the same flat. The Respondent itemised her expenditure in detail and produced receipts evidencing many of her regular outgoings. The latter included rates of $182.25 per quarter, water rates of $84 per quarter and electricity of $67 per month. The Respondent submits her claim is reasonable. She submits that the Petitioner has been less than frank, has sold the flat to evade his financial obligations to her and that his financial position is much stronger than he has disclosed. 10. The Petitioner, on the other hand, states that he is now a poor man with only a small amount of capital and, being unemployed, is in receipt of no income. He reminds me that since he left the matrimonial home in 1971 he has not paid any maintenance to his wife, nor has she until now made any application. He submits that she has obviously been able to maintain herself over that period. If the Court is to be realistic, he submits, it should recognise he simply has no income or available capital from which to pay maintenance. 11. As to any question of delay, I would record that the application for periodical payments was included in the Respondent's Answer which was duly filed within the prescribed time limits. The decree nisi was granted on the 21st November 1977. It is yet to be made absolute. There is therefore no question of delay. As to the fact that no maintenance has been paid by the Petitioner since he left the matrimonial home in 1971, that is merely one, of several circumstances, to be taken into account. 12. I am unable to find, on the evidence, that the Petitioner sold the flat to evade his financial obligations to his wife and I reject that possibility. While due to her full disclosure I have a very complete picture of the financial position of the Respondent, the position of the Petitioner is unfortunately far from clear. However, he has been represented throughout and any lack of particulars relating to his financial position is due solely to his own fault. 13. The law is well settled that where a party, opposing an application for maintenance, fails to make full disclosure of his financial position, a court is entitled, on the evidence otherwise before it, to draw inferences against such a party. The position was summed up by Willmer, L.J., in Payne v. Payne (1968) 1 All E.R. 1113, 1117, when he said:-
14. Applying that principle to the instant case, I am prepared to infer that the Petitioner could afford to pay the $500 sought by the Respondent as particularised in her affidavit. He has just sold a flat for $120,000 which he had purchased only 4 years previously for $64,000. The only debts he was able to particularise - and even then in only a very general way - amounted to $40,000. There is no explanation of what happened to the remaining $80,000. This was a very recent transaction, so this is not a case where his memory may have been affected by lapse of time. His present capital position now, he alleges, only amounts to a few tens of dollars. He further alleges he is in ill health. No medical evidence was adduced. He appeared at the hearing to be in good health. He is still only in his fifties. I am unable to find that his earning capacity has been affected by ill health. 15. I therefore now turn to consider whether the amount sought is reasonable. The former matrimonial home is obviously an important source of income for the Respondent. However, she has no legal interest in that property. Ideally it would be desirable if she could secure a registered interest in the flat. That course is not open to me in these proceedings. I recognise, however, that for some years she and her son have lived there and it was purchased as the matrimonial home. In assessing maintenance I am going to do so on the assumption that she will continue to reside there, rent free, except for meeting the outgoings, and that she will receive the income it may produce. If there is any change in that position, then she has the right to apply for variation of the order I am going to make in these proceedings. 16. The greater part of the son's income - in itself small - must realistically be apportioned largely to his own expenses. If a balance of $100 is allotted to the Respondent that combined with the rents of $300 would produce an income of $400 per month out of which, in addition to the usual daily outgoings, she has to meet rates, water and electricity charges. 17. While I infer that the Petitioner's financial position is very much better than he alleges, I am prepared to accept in his favour that his income in the future will probably be less than it has been in the past. He is now 54 to 55 years of age. I also take into account the probability that he will shortly re-marry. 18. Her present income is insufficient to meet the Respondent's needs. I am satisfied that her husband has the capacity to pay reasonable maintenance and in all the circumstances should do so. Taking all these considerations and all the matters referred to in Rayden (12th Edn.) page 715, paragraph 11, fully into account, I consider that the Petitioner should pay the Respondent by way of maintenance the sum of $400 per month which would result in her having a personal gross income of $800 per month. 19. There will be no order in respect of the son. The maintenance payable to the Respondent shall be paid by the Petitioner by consecutive monthly payments of $400 on the last day of each and every month; the first of such consecutive monthly payments being due and payable on the 31st day of July, 1978. 20. The Petitioner shall pay to the Respondent the costs of and occasioned by this application which shall be taxed in accordance with the Legal Aid Regulations. There shall be liberty to apply. 21. Dated this 21st day of July, 1978.
Representation: Mr. P. Hon of Hon & Co. for Respondent. Miss J. Leong instructed by Clayton Wong & Co. for Petitioner. |