Lo Leung Ling Kwan v. Lo Kwok Fai

HCMC000029/1975

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 29 OF 1975.

(formerly V.D.J. No. 169/75)

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Coram: Mr. Registrar Silke in Chambers.

Date of Judgment: 28 October, 1975.

D.G. Sparrow, Esq., instructed by Messrs. P.H. Sin & Co. for Petitioner.

Miss M. Chiu instructed by Messrs. R.W. Young & Co., for Respondent.

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Maintenance Pending Suit.

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1. The parties were married on the 9th March, 1955. There are two children of the marriage, Kin Yip born in 1957 and now aged 18 years and 6 months, Kin Wing born in 1958 and now aged 16 years and eleven months.

2. A divorce petition by the wife was filed on 21st March, 1975, and among the prayers was one for maintenance pending suit. This is the hearing of that application. The Petitioner/Applicant was represented by Mr. Sparrow on the instructions of P.H. Sin & Co. and the Respondent by Miss Chiu on the instructions of R.W. Young & Co.

3. Neither party is without means. The Petitioner is employed as a clerk by the Hong Kong Electric Co., Ltd. at a salary of $1,398.50 per month. She owns the property No. 11B, Babington Path, 7th floor, which she rents out for $659.00 per month gross. She owns shares, the present market value of which is $87,206.25. She admits to $22,000 being in her savings account with the Chartered Bank and $5,800 in her accounts with the Hang Seng Bank Ltd.

4. She admits to jewellery valued at $16,475.00 and gold bars at the value of $8,500.

5. She has taken a tenancy of a flat at 95, Hill Road, 5th floor, flat 5A, incurring, she avers, expenses of $11,243 in so doing. The reason for this was to permit the younger child of the marriage to reside with her - that being then his election.

6. There was subsequent argument on this issue between the parties, the net result of which was that the younger son returned to reside with the Respondent - the older having resided with him all along.

7. She gives her total monthly outgoings as $2,875.63 with total monthly income of $2,048.00 - to the latter must be added the income from her share holding estimated at $1,000 per year.

8. The Respondent admits to an income of but $1,000 per month arising from his sole proprietorship of Level Measurers and Weighters Co. I am told that this firm has made a loss over the past five to six years but the Respondent in some magical way manages to pay himself this salary out of those losses.

9. This of course is not the end of the story. It would appear that, as the result of an inheritance which came to him in the form of gold bars and valuables on his father's death in China seventeen to eighteen years ago, he made various purchases of property and opened his business - a cargo measurer. He owns the flat he lives in, he admits to having $9,537.44 in his account with Banque Nationale de Paris, $25,708.26 in his account with Chase Manhattan Bank and $312.68 in his moribund account with the Chartered Bank. He owns a BMW520 car, the present value of which is estimated at $15,000. The cost of its maintenance and fuel are provided by his firm - presumably out of its losses. I have no evidence of any overdraft.

10. I am told he sold some of his inheritance to buy the premises in Robinson Road in which he lives - in 1968. He bought a further premises in Gloucester Road in 1974, in respect of which he paid $23,000 direct and $50,000 resulting from a mortgage. The flat was then let at a rent of $600 per month, but as it appeared uneconomical to the Respondent in the light of the mortgage repayments, he sold the premises in July 1975 for the same sum $73,000, as paid for its purchase in 1974. The mortgage has been repaid.

11. He failed to disclose a flat purchased for $60,000 in 1971.

12. He owns shares to the approximate value of $54,000. There is what I accept to be an unintentional error in paragraph 9 subparagraph (h) of his affirmation. I have no information on the income from these shares.

13. I do not accept that the Respondent's sole income is a mere $1,000 per month. There is the maintenance of his children to be considered. It is the Respondent's contention that his sister-in-law has provided for the education of the elder son for some considerable time - even while the Respondent was at odds with his brother, her husband. The brother is now dead but I have no supporting evidence before me from Madam Ng as to this. I find it difficult to accept that the true situation is as the Respondent paints it.

14. He gives his total expenses as $1,648 which I feel to be an under estimation.

15. There is no hard and fast rule as to the proportion of his income that the Respondent should pay the Petitioner and it is not necessary for me to take a long term view. It is not for the Petitioner to improve her position by initiating these proceedings. She has not been living apart from the Respondent for any considerable time and is of independent means. However, I think there should be some provision made for her by her husband pending a final settlement in this matter and viewing the evidence as a whole - bearing in mind that there has been no cross-examination on the respective affirmations - I think the sum of $900 to be appropriate.

16. I would therefore make an order that the Respondent do pay the Petitioner the sum of $900 as maintenance pending suit, the first payment to be on the 1st day of November, 1975, and subsequent payments on or before the first of each month thereafter.

17. The Respondent to pay the costs of this application to be taxed. Certify fit for Counsel.

18. Dated this 28 day of October, 1975.

Representation:

D.G. Sparrow, Esq., instructed by Messrs. P.H. Sin & Co. for Petitioner.

Miss M. Chiu instructed by Messrs. R.W. Young & Co., for Respondent.