Mable Lai v. Lam Chow

HCMC000060/1969

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

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CORAM: Mr. B.L. Jones, Assistant Registrar, in Chambers.

Date of Judgment:10th February, 1970.

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DECISION

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1. This is an application by the Petitioner for an order for maintenance pursuant to the reference of the Trial Judge made at the hearing of the divorce proceedings on the 11th October, 1969.

2. The parties were married on the 11th January, 1949 and there are no children of the family. A decree nisi was granted to the Petitioner on the 11th October, 1969 on the grounds of the Respondent's adultery and desertion which proceedings were undefended.

3. In her affidavit of means dated the 17th October, 1969 and which she confirmed in evidence the Petitioner states that she is employed at the Tack Ching Girls' Middle School, Kowloon as a clerk earning $200 per month which is her sole income. The Petitioner's monthly expenses for food, transport, clothing, medicine and other incidentals amount to $245. She owns no property other than personal effects and a sum of about $1,000 in a bank account. The Petitioner lives at the former matrimonial home Fortson Farm, 14, Milestone, Taipo, which property is owned by the Respondent. It is agreed that no maintenance has been paid by the Respondent to the Petitioner since October, 1968.

4. With regard to the difference between her income and expenditure the Petitioner explained that she receives some financial help from her sisters.

5. Although the parties separated in 1963 the Petitioner worked at the Respondent's laboratory, Hapley Laboratories from 1965 to 1967 at a salary of $150 per month but the Respondent said he paid $200 per month.

6. The Respondent gave evidence that he is now living with the woman named in the Petition and has two children by her aged three and two. It is clear from the evidence that the Respondent is now the sole proprietor of the firm called Hapley Laboratories which manufactures pharmaceutical and toilet products. Formerly the Respondent was one of five partners in the business. The capital of the firm is $23,000, of which sum the Respondent contributed $3,000. The other partners have to all practical intents and purposes withdrawn from the business but maintain their claims to their respective interests in the capital which they contributed.

7. The Respondent said his salary from the business is $1,000 per month and that his monthly expenses as listed in paragraph 8 of his affirmation dated the 29th October, 1969 total $810.

8. The bank account referred to in paragraph 5 of the Respondent's affirmation is in fact a firm account and not the Respondent's personal account.

9. The Respondent stated that Fortson Farm was purchased in 1956 and he estimated that its present value is $20,000. Upon the security of the property he borrowed $10,000 from Madam Hung Wai Yung in March 1966 and agreed to repay this sum within one year but in fact after two extensions the money is still outstanding. The last extension was given on the 15th March, 1969 and the Respondent is at present negotiating a further extension. It was suggested by Counsel for the Petitioner that the document evidencing the loan was never in fact made. However there was no evidence before me to support this contention. Counsel however contended that the document should have been registered but this point is not relevant as Madam Hung was the mortgagee. The Respondent said that he possessed no other assets.

10. The Respondent produced balance sheets in respect of Hapley Laboratories for the years 1963/1964/1965/1967 and 1968. These accounts showed that the business made a profit for the years 1963/1964 but that from 1965 onwards it has been running at a loss.

11. Although none of the balance sheets had been audited I see no reason to disregard such evidence. It is also clear from the Commissioner of Inland Revenue's assessments for the years 1966/1967 and 1967/1968 that the business was in fact running at a loss. It was suggested to the Respondent by Counsel for the Petitioner that these losses were incurred as a result of the Respondent's gambling but this was denied and there was no evidence before me to support this allegation. It was further suggested that in view of the losses of the firm that the Respondent should have taken steps to close it down but the Respondent explained that it was difficult to find anyone to take it over with the result that he has continued.

12. No evidence was adduced before me to show that the Respondent's income was more than the sum of $1,000 per month and I accept the figures given by him as to his expenses.

13. I further accept the evidence given by the Petitioner as to her means.

14. In assessing maintenance in this case I must take into account the Respondent's responsibility to maintain the two children by the woman named and his obligation although not legally enforceable towards the woman named whom I am told by the Respondent is not working. However, it is clear that the Petitioner's rights must not be made subordinate and that she is entitled as an innocent wife to be maintained so far as is practicable in a comparable standard of living to that obtaining before the divorce.

15. Taking all matters into consideration I shall make an order for the Respondent to pay to the Petitioner maintenance in the sum of $175.00 monthly, the first payment to be made one month from the date of the decree nisi being made absolute and thereafter monthly.

Representation: