Au Yeung Tsang Shun Ching v. Au Yeung Wan

HCMC000144/1970

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 144 OF 1970

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

Date of Judgment: 17th day of May, 1971.

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DECISION

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1. On the 13th February 1971 the Petitioner was granted a decree nisi upon the grounds of the Respondent's cruelty and adultery to be made absolute within three months.

2. The Petitioner's claim for maintenance was adjourned for determination by the Registrar of the Supreme Court.

3. The parties who have no children were married on the 27th November 1963 when the Petitioner was aged 17 and the Respondent 23.

4. The marriage only lasted until the 14th March 1964 when the Petitioner left the matrimonial home as a result of the conduct of the Respondent and his mother. On the 8th July 1964 a separation order was made at the Tsuen Wan Magistracy in favour of the Petitioner on the grounds of persistent cruelty and wilful neglect to maintain. Maintenance of $150 per week was ordered to be paid by the Respondent.

5. The Petition for divorce contained allegations that the Respondent's mother adopted a callous and indifferent attitude towards the Petitioner which caused her humiliation and distress. The Respondent also treated the Petitioner with indifference and did not intervene on the Petitioner's behalf during the incidents that involved his mother. The adultery committed by the Respondent resulted in the woman named giving birth to a child.

6. The divorce proceedings were commenced on the 31st July 1970 and a general appearance was entered by the Respondent on the 3rd September 1970. However, no answer was filed and the Petition was undefended at the hearing.

7. The Petitioner by her notice of application for ancillary relief claims maintenance, a lump sum and an order for a secured provision. Affidavits of means were filed by the Petitioner and the Respondent. Oral evidence was given before me on the 15th April and 22nd April 1971.

8. The Petitioner who is now 25 years of age works as a Beauty Consultant with Revlon earning with commission about $600 per month which is her sole income apart from the maintenance payments of $150 per week made by the Respondent. The Petitioner's mother purchased a flat in Nathan Road in the name of the Petitioner some 18 months ago for $46,475. The deposit and legal fees amounting to $20,000 were borrowed from the Petitioner's uncle. The Petitioner is paying the instalments due to the Hang Seng Bank Limited of $595.95 per month in respect of the balance of the monies borrowed. In her evidence which I accept the Petitioner said that she would not contemplate selling or disposing of the flat whilst her mother with whom she lives is alive. The Petitioner has no other capital assets of any description.

9. The Respondent who is now aged 31 comes from a wealthy family in the New Territories and lives in Kwai Chung. He does not work and has not done so since he left school at the age of 24. I formed the impression that the Respondent is an extremely weak character whose life is completely dominated by his arrogant self-seeking mother. The reference made by Mr. Zimmern in cross examination to the expression in Cantonese Yee Sai Jo i.e. a person who comes from a rich family who does not have to work, accurately describes the Respondent. The Respondent said that he has no income or capital assets of his own with the result that he is entirely dependent upon his mother for support. In fact he said that even when he goes to the cinema he has to ask his mother for the money.

10. The main issue upon which the Petitioner's application for ancillary relief has been contested was the ownership of the seven properties referred to in the Petitioner's affidavit of the 8th April 1971. These properties were originally in the name of the Respondent but were transferred shortly after the break-up of the marriage to the Respondent's mother by deed of gift.

11. The Respondent's evidence in the magisterial proceedings is significant for he said at page 16 of the Notes of Evidence:-

"My mother supports me. I own no property. Lot 732, Castle Peak Road, Kwai Chung was owned by me in November, 1963. I transferred it to my mother so that she could look after this and other properties should I go to the U.S.A. to further my studies when my present course ends when it is due to in approximately 6 months. I began this course this month. All properties applicant mentioned except one flat were transferred by me to my mother in the same way in November, 1963 ...... I gave instructions to my solicitors to transfer the San Tsuen Street property in November, 1963. The Ching Ping Street property does belong and always has to my mother."

12. In cross examination at Page 19 the Respondent said:-

"At 21 I inherited a substantial sum of money from my grandfather. My mother used it to buy up property. I inherited money at 12 and my mother was my only next of kin. Lot 732, Castle Peak Road was not bought with my money. Yes, it was. So were all the other properties applicant mentioned in evidence including that in Ching Ping Street. She is holding all the properties for me. She assigned all except that in Ching Ping Street when I was 21. At end of March and beginning of April I transferred them back to her. She still holds them for me though. It cost a lot in stamp duty. It was not done to evade maintaining my wife."

13. However, in these proceedings it was argued on behalf of the Respondent that there is a custom in the village in Kwai Chung from where he comes that the properties were never owned by the Respondent but always belonged to the mother who has absolute power to sell or dispose of them. The Respondent's grandfather died about twelve months after the Respondent's father when the Respondent was 8 years of age. It was put forward that upon the demise it is the custom for the son to hold the urn containing the incense for the purpose of worshipping the deceased, but as the Respondent was too young it was held instead by his mother. As a result of holding the urn the mother as the new head of the family became entitled to receive all the properties and lands of the deceased. However, if the Respondent had been old enough he would have been entitled to his inheritance. Evidence as to this custom was also given by the Respondent's mother, a village representative and another witness who does not hold any official capacity. However, in order to establish this custom one would expect evidence to be given by an expert or that some documentary evidence would have been produced. Neither the present head of the Au Yeung family who is the manager of the Au I Tai Fong which is a branch of the Au Yeung Clan gave evidence nor was any written evidence produced. In spite of the alleged existence of the custom no explanation was given as to why the properties were in fact originally in the name of the Respondent. No reference was made to this custom in the separation and maintenance proceedings held at the Tsuen Wan Magistracy in 1964.

14. The Respondent in cross examination contradicted his evidence in chief that he had inherited the properties and said he had assigned them to his mother as his mother had originally given him money with which to purchase the flats. Another explanation was that given in the Magistracy that the assignments were made because he intended to go to America to study. However, the Respondent did not in fact go to America and I doubt that he ever intended to do so. The Respondent prevaricated when answering questions upon this subject with the result that I reject his evidence.

15. The evidence given upon the alleged custom was wholly unreliable and I do not accept that the consequences said to flow therefrom exist.

16. Lord Merrivale P. said in N. v. N. 1928 All E.R. P.466 as quoted by Hodson L.J. in J. v. J. 1955 2 All E.R.P. 620 "The ecclesiastical Courts showed a degree of practical wisdom ....... They were not misled by appearances .... they looked at the realities .... The Court not only ascertained what moneys the husband had, but what moneys he could have had if he liked, and the term 'faculties' describes the capacity and the ability of the respondent to provide maintenance ..... I conceive that I must take into consideration the position in which the parties were, and the position in which the wife was entitled to expect herself to be and would have been, if her husband had properly discharged his marital obligation ....".

17. I find that the properties in this case were inherited by the Respondent and were deliberately transferred by him to his mother with the express intention of defeating the rights of the Petitioner to financial relief. I hold that the Respondent is the true owner of the properties and that he is therefore entitled to receive the rents therefrom apart from 25 Ho Pui Street which has been sold.

18. The Respondent's mother manages the properties and she has full knowledge of the rents payable. However, the true position with regard to the amounts payable was not given by the mother who created a most unfavourable impression when giving evidence. During her evidence on one occasion she refused defiantly to answer a question put by Mr. Zimmern concerning the amount of rent payable in respect of 12 Ching Ping Street until I warned her of the consequences. Throughout her cross examination she was evasive and proved to be a thoroughly unreliable witness. She has not kept accounts and in evidence agreed that she can squander the family fortune as she thinks fit. I do not accept her evidence that the properties were purchased with her own money.

19. How wealthy the Respondent is is not really known in view of the evasive evidence given by the Respondent and his mother. However, with regard to facts in dispute it is clear that the court is entitled to draw inferences in favour of the wife and not against the husband as was done in J. v. J. 1955 2 All E.R. 617.

20. A valuation report prepared by Mr. Dai-Chung Sh...(illegible), Chartered Architect was produced on behalf of the Petitioner showing the value of the properties today to be worth $590,000. This includes a figure of $60,000 for the property 25 Ho Pui Street which the Respondent's mother sold last year for $39,000. Although Mr. Liu challenged the valuation figure he chose not to call evidence to dispute the figure of $590,000 and in the absence of such evidence I accept the valuation produced. The rents payable today in respect of the properties was not established but there is no doubt that they are much higher than they were in 1964 and they could well be in the region of $6,000 per month as suggested by Mr. Zimmern.

21. Section 28 of the Matrimonial Causes Ordinance 1967 deals with maintenance orders and lump sum payments. The section provides:-

22. In assessing an ordinary claim for maintenance it is proper to have regard to the standard of living to which the wife was accustomed during the marriage so the same approach should govern a claim for a lump sum. She is entitled to ask for a lump sum of such an amount as will provide her with a standard of living commensurate with that to which she has been accustomed.

23. In Davis v. Davis⁽¹⁾ Willmer L.J. said at P. 192 "As a practical matter it is clear that an order for a lump sum payment can only properly be made against a husband possessed of sufficient capital assets to justify it. It is not to be expected, therefore, that the question is likely to arise except in relatively rare cases".

24. In the same case Willmer L.J. said reasonable means reasonable having regard to the wife's fortune, the husband's ability and the conduct of the parties.

25. The Respondent did not defend the proceedings and from the evidence before me no blame can in any way be attached to the conduct of the Petitioner.

26. The Respondent of his own choice does not work and leads an idle but comfortable life whilst the Petitioner finds great difficulty in subsisting upon the earnings from her employment and the small amount of maintenance.

27. It is abundantly clear that the Respondent is a wealthy man and that this is one of the relatively rare cases where a lump sum should be awarded in addition to maintenance.

28. With regard to the claim for maintenance I shall award the sum of $1,000 to be secured to the satisfaction of the court and to be paid by the Respondent to the Petitioner during the joint lives of the parties or until further order to be payable monthly, the first payment to be made when the decree nisi is made absolute.

29. The orders that can be made under the three paragraphs in section 28 are not alternative but the burden cast upon the Respondent in respect of any one paragraph should be taken into account in deciding the amount of any order to be made under either of the other two paragraphs. In deciding a figure to be paid by way of a lump sum in Curtis v. Curtis 1969 2 All E.R. at Page 290 Edmund Davies L.J. said "But these are far too early days to say that any principle or tariff has been established in such cases as the present. Indeed, at this stage I take leave to doubt the desirability of a tariff ever being established and so tying the hands of this court, or the trial judge, in arriving at a proper assessment by adverting to all the circumstances of the particular case".

30. Having considered all the circumstances of this case I consider that a reasonable sum to be paid as a lump sum to be secured to the satisfaction of the court by the Respondent to the Petitioner is the sum of $85,000.00.

31. The costs of and incidental to this application will be paid by the Respondent and there will be a certificate for counsel.

32. Dated this the 17th day of May, 1971.

Representation:

(1) Davis v. Davis (1967 P. 185)