Wong Fung Man-yan v. Wong Yu-sang

HCMC000148/1970

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 148 OF 1970

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

Date of Judgment: 4th day of August, 1971.

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DECISION

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1. This is an application by the Petitioner for maintenance that was referred to the Registrar for determination at the hearing of the divorce proceedings on the 13th February 1971 when the Petitioner obtained a decree nisi on the grounds of cruelty.

2. The parties were married on the 23rd November 1965 and there are no children of the family.

3. The parties separated in August 1967 and on the 2nd December 1967 the parties signed a Separation Agreement at the then Secretariat for Chinese Affairs. No provision was made in the Agreement for the Petitioner to be maintained by the Respondent but no clause was incorporated to the effect that the Petitioner waived her right to claim maintenance.

4. The Petitioner's sole income at the present time amounts to $60 per month which she receives from some knitting work which she does on a casual basis. The Petitioner said that she is unable to do any other work due to her present state of health. The Petitioner came to Hong Kong from mainland China in 1962 and it appears that prior to coming here she had been suffering from tuberculosis. However, it seems that she has fully recovered from this illness although she makes annual routine visits for a medical check up. The Petitioner complains that she has suffered from kidney trouble since 1969 but no medical evidence was produced to support this contention.

5. The Petitioner is supported by her brother who pays the rent of the premises where she lives and for her other outgoing expenses. This situation has continued since 1967 apart from one year when the Petitioner was working regularly. The Petitioner has no assets or property of any description.

6. The Respondent in his evidence said that he is employed at the Diamond Cafe, Choi Hung Estate as a cashier. The Respondent's present earnings amount to $700 per month but it appears that he receives extra pay at Chinese New Year and this year he received in respect thereof a sum of $300. In addition he received an allowance of $1,000 in 1969 and in January this year the sum of $2,000 for 1970. The actual earnings of the Respondent would therefore be in the region of $900 per month It was argued on behalf of the Petitioner that the Respondent is a partner in the business of the Diamond Cafe with an income of about $1,500 per month but this was firmly denied by the Respondent. Mr. Poon the sole proprietor of the Diamond Cafe also gave evidence that the Respondent was not a partner.

7. On the 18th February 1970 the Respondent entered into a hire purchase agreement to purchase a Triumph 1300 Saloon motor car at a total hire purchase price of $18,814.40 payable by 36 monthly instalments of $379 after an initial cash payment of $2,990.50. The initial cash payment was provided by Mr. Poon who said that if the Respondent maintains his hire purchase monthly repayments regularly he will be under no obligation to make any repayment of the cash payment. The car is used both for the Respondent's own benefit and for the business of the Diamond Cafe.

8. The Respondent's other monthly commitments include rent $175, breakfast, lunch and other expenses $150.

9. Although in paragraph 8 his affirmation dated the 18th May 1971 the Respondent stated that he intends to remarry after the divorce this is no longer his intention. The Petitioner also stated that she has no intention to remarry for the time being.

10. Evidence of the Respondent's earnings was substantiated by receipts produced by Mr. Poon.

11. Although the Petitioner declined to apply for maintenance in the Separation Agreement such a decision does not now preclude her from claiming maintenance. The Respondent chose not to defend the divorce proceedings and in view of the decree granted in the Petitioner's favour no blame can be attached to the Petitioner for the break down of the marriage. In deciding what is a proper amount to award for the maintenance of the Petitioner I consider that the payments made by the Respondent in respect of the car if the evidence as to his income is to be believed, are a luxury which he can ill afford. I shall therefore disregard this expense when considering the question of quantum of maintenance. However, although the Petitioner has been in ill health nevertheless I am of the opinion that her earning capacity should be more then the $60 per month which she is at present receiving.

12. In all the circumstances I am of the opinion that the proper sum to be paid as maintenance to the Petitioner during the joint lives of the parties until further order is the sum of $150 per month payable monthly, the first payment to be made one month from the date when the decree nisi is made absolute.

13. The costs of and incidental to this application will be paid by the Respondent and there will be an order for the costs of the Petitioner to be taxed in accordance with the provisions of the legal aid (Scale of Fees) Regulations Cap. 91.

14. Dated this the 4th day of August, 1971.

Representation: