Wong Che Wai Raymond v. Wong Chung Yee Fong Helen and Another

HCMC000064/1981

IN THE HIGH COURT OF JUSTICE

DIVORCE JURISDICTION

BETWEEN

Coram: Hon. Power, J.

Date: 5th August 1983.

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JUDGMENT

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1. This is an appeal against a decision of Mr. Registrar Wilson given on the 9th March 1983 ordering the petitioner, Wong Che Wai, Raymond, (the husband) to pay the respondent, Wong Chung Yee Fong, Helen, (the wife) interim maintenance as follows:

2. The learned Registrar made no order as to costs saying: "I intend to make no order for costs. I do not intend to make what may be regarded as the "usual" order in favour of the wife because - (a) The award I now make in 1983 is not appreciably more than what the husband commenced paying voluntarily in 1981 and has been paying since; (b) The wife's conduct and attitude in my view has been largely responsible for turning what is intended as a swift and speedy remedy for urgent needs into proceedings of some length and complexity." One cannot arrive at any exact figure but it seems to me that the learned Registrar must have had in mind an overall figure of about $21,000 per month.

3. The notice of appeal asks that the husband be ordered to pay to the wife a sum by way of maintenance pending suit for her and the children of the marriage which would enable her and the children to enjoy a standard of living comparable to that which was enjoyed by the parties before the break down of the marriage and that such sum be paid retrospectively from the 20th October 1981. It also asks that the respondent be awarded costs of the application before the learned Registrar.

4. The petition in this matter, which was dated the 13th August 1981, showed that the husband and wife were married on the 6th July 1972 and that there were two children of the family namely, Benedict, born on the 23rd December 1972 and Bernedette, born on  the 2nd July 1975. In this petition the husband alleged behaviour by the wife such that he could not be reasonably expected to live with her and he also alleged that she had committed adultery.

5. The wife in her answer filed on the 20th October 1981 denied the allegations made against her and alleged that the petitioner had behaved in such a way that she could not reasonably be expected to live with him. At the hearing of the petition on the 31st January 1983, the Court ordered that the prayer for dissolution in the petition be dismissed and the decree nisi was granted on the prayer in the answer. The decree was, with the consent of the parties, given upon the basis that it was an undefended action: The parties agreed certain terms at the time of the making of the decree nisi, one of which was that each party should be at liberty to refer to the allegations raised in the suit in the ancillary relief proceedings and custody proceedings, save and accept the allegations against the respondent of adultery.

6. It was common ground that at the time of the marriage e the husband was a Government doctor and that in May 1979 he entered private practice. At the time when the husband went into private practice he was earning a monthly salary of $11,000 ($132,000 per annum). Given that he had a Government flat, this would have allowed the family to live in relative comfort, but certainly would not have been sufficient to allow for any lavish expenditure. The financial statement for the husband's clinic for the year ending 31st December 1980 shows a total income of $605,845.00 which, after deduction of expenses, left a nett income before tax of $389,740.99. A similar statement for the year ended 31st December 1981 showed a total income of $736,051.00 which, after deduction of expenses of $272,108.08, left an nett income before tax of $463,942.92.(B2/669). A similar statement for the year ended 31st December 1982 showed a total income of $1,044,253.00 which, after deduction of expenses of $378,258.29, left an nett income before tax of $665,994. 71. It was the wife's suggestion that the husband earned more than these amounts. Whether or not that be so on the figures admitted there is a dramatic increase in earning after the husband entered private practice.

7. I think it appropriate at the outset to make the following comment on the wife's suggestion that the husband accustomed her and the children to a very high, standard of living. Whether the husnand's version of the events of the married life be correct or whether the wife's be correct, or indeed, if the truth lies somewhere between, it is clear that for some time prior to the separation in August 1981 there were considerable matrimonial difficulties. Indeed the wife in her answer said that since June 1980, just one year after the husband went into private practice the petitioner had failed to give her "any money for house keeping and she had been forced to attend at his clinic to obtain a few hundred dollars each time from his staff in order to run the home". (Paragraph 5(f)). If this be correct, and the wife alleges it is, can it stand side by side with the suggestion that her husband was, at the time when his earnings were becoming more substantial, accustoming her and the children to live at what, according to her account, was a lavish standard.

8. In the hearing before the learned Registrar, both parties filed affidavits and both were cross-examined thereon. As the learned Registrar remarked in his decision, "The matter was fought and resisted vigorously at every turn". The wife was claiming maintenance in excess of $60,000 a month. The husband suggested that the appropriate figure was $9,000 per month plus the rental on the flat and all out goings thereon. The learned Registrar considered that the .wife's claims were extravagant and that her list of needs contained "manifest exaggerations". He readily believed "the husband's evidence that his wife descended on his surgery frequently with the sole intent of taking all the money she could" and referred to her "depredations" on the income of the husband.

9. The learned Registrar dealt with a suggestion that the husband was secretly receiving commissions from medical laboratories and said that the evidence was so slender and speculative that he attached no significance to this suggestion

10. The suggestion was made to the Registrar that, although the taxation authorities fray take a different view of the matter, some of the items in the financial statements to which I have referred, notably those for depreciation and entertainment, should not be treated as deductible expenses in an application such as this as they involve a substantial element of personal benefit. He dealt with this by saying that these items seemed to him to represent  "no more than the well known tendency of self employed persons to stretch things like entertainment and travelling expenses as far as possible without exciting the suspicion and investigation of the revenue authorities". This did not answer the submission that they involve an element of personal benefit, however the learned Registrar went o n to say that, in his view, the items did not represent "any great sum in the circumstances".

11. He dealt also with the suggestion that the husband was pocketing a large proportion of his income, which was in cash, and concealing it. The wife sought to establish the truth of this suggestion by showing that the total credits in the husband's bank account over the years exceeded the declared gross income. The learned Registrar seems to have accepted that the reason why this was so was because the husband made cross transfers between his accounts in order to prevent some, at least, of his earnings from falling into the hands of his wife. He seems to have accepted not only that the husband made such manoeuvres but also that they were designed to salvage money from the wife's depredations. In the outcome he found that the husband's earning capacity was, "perhaps, $40,000 a month", It seems clear that, when making this finding, the learned Registrar was relying very much upon the husband's evidence that he was earning $38,000 to $40,000 per month and that he was referring to the nett income before tax which would leave an income of about $34,000 after tax.

12. As to the wife, he found "The wife has had substantial property assets and dealings and has sources of income from this and elsewhere. The full extent of this may have to be canvassed in further proceedings. She is clearly not without independent means and is not solely dependant on the husband".

13. As to the standard of living obtaining before the breakdown, the learned Registrar said, "One would expect a doctor who has just left Government service for practice to have a good, indeed a high, standard of living; but not necessarily a lavish one to the extent envisaged by the wife".

14. Finally the learned Registrar said, "I must have regard to the needs of the parties including the children. Unfortunately one of the two children has a slight impediment. Even more unfortunately much was wade of this, especially the alleged cost of expensive specialist treatment. I propose to say as little as possible; this child should benefit from a modest and reasonable amount of therapeutic treatment over and above that given an average child. This will cost extra and I take that into account".

15. The learned Registrar arrived at his decision upon the basis that the husband's nett earning capacity was about $40,000 a month and that the wife was not without independent means and was not solely dependant upon her husband. He was satisfied that the parties had enjoyed a good standard of living, but not a lavish one, and that he was called upon to provide a modest and reasonable amount of therapeutic treatment for the child with an impediment. I must say that, on its face; the learned Registrar's decision seems to me to be in accord with both law and common sense. He refrained from going too deeply into the financial position of the parties, which was quite proper, given that he was dealing with an application for interim maintenance. Having heard the parties, he grade his assessment as to their credibility and he based his decision squarely upon the facts as he found them to exist.

16. When the appeal carne on for hearing in front of me, both counsel asked that Ideal with not only the appeal against the decision of Registrar but also with the application for permanent maintenance under which secured periodic payments and a lump sum were sought.

17. It had been agreed by the parties at the time of the making of the decree nisi that the decree was not to become absolute until the petitioner purchased for the respondent either the present flat or a flat of comparable size, similar in location to the present flat, at the choice of the respondent, and to the approximate value of HK$1.5 million. It was also provided that the husband was to be responsible for any mortgage payments with regard to the said new flat and was to pay the wife $10,000 towards her removal expenses. Mr. Payne asked that the application for permanent maintenance be now dealt with upon the basis of this agreement. Mr. Pirie on the other hand, while also asking that the appeal and the application for permanent maintenance be heard together, asked the Court to grant the decree absolute forthwith and to proceed thereafter with the other hearings. He seemed to be suggesting that this course could be followed despite the fact that the agreed terms had not been carried out and even though the wife objected strongly to the grant of a decree before the carrying out of the agreed terms. He submitted that, if the course he was suggesting was followed, the Court could, when making its decision as to the permanent maintenance, take into account that no residence had been provided by the husband together with all of the other factors. I must say that, given the agreement between the parties, I was not able to understand how it could be suggested that it would be proper to follow such a course. I was satisfied that the only proper course in the circumstances was to proceed to hear the appeal against the Registrar's decision. This was so not only because I would have found it difficult to deal properly with the question of interim maintenance while at the same time trying to bear in mind the wider considerations which apply with regard to permanent maintenance but also because there, clearly, was no real agreement between the parties as to the basis upon which a joint hearing should take place.

18. The hearing commenced on Monday, the 11th July but was then adjourned until the following day as Mr. Pirie had not had the opportunity to examine the bundle of documents prepared by the solicitors for the respondent. The hearing resumed then on Tuesday, 12th July, when Mr. Pirie made an application for issue of nine subpoenaes. It was clear that  both parties intended to canvass once again all of the matters raised in front of the learned Registrar. I pointed out to counsel that it was, "not appropriate for the Court to make a detailed investigation of the financial position of the parties", either in a Registrar's hearing or in an appeal therefrom and referred to V. v. V. ⁽¹⁾

19. Mr. Payee then opened the case for the appellant traversing the affidavits  filed   in front of the Registrar and dealing particularly with the financial statement for the year ended 31st December 1982 which was exhibited to the affidavit of the husband filed on the 24th June 1983 and which had not been in front of the learned Registrar. This statement showed that the total income for that year was $1,044,253.00 and that after expenses of $378,258.29, the nett income before tax was $665,994.71. He pointed out that this produced a monthly income well in excess of the figure of $40,000 upon which the learned Registrar had made his assessment. He suggested further that matter such as "Entertainment", "Business Trips", "Motor Vehicle Expenses" and "Depreciation" should be regarded as being part of the amount available to the defendant for his personal expenditure and that, when these were so considered, his nett income before tax was. about $750,000.

20. Mr. Payne's opening took all of Tuesday, 12th July, and he was still opening when the hearing concluded on the afternoon of  Wednesday, 13th July.

21. At the commencement of the hearing on the morning of Thursday, 14th July, it was indicated to me that more time might be needed than the 10 days that had been allotted. In consequence of this, I made the following statement to counsel, It has been indicated to me that more time may be needed than the 10 days allotted, I am satisfied that this matter should be dealt with in accordance with the guidelines in V. v. V. ⁽¹⁾. Nothing I have heard so far indicates that the learned Registrar erred in his approach - he was dealing with an application for interim maintenance. He was not called upon to take a long term view or to 'make a detailed investigation of the financial position of the parties' nor, I think it appropriate to add, am I. Given the mounting costs, it seems to we proper to add that, although what I have heard so far indicates that the learned Registrar was right in his approach, it may be that the figure he arrived at will require adjustment because of the knowledge the Court now has of the actual amount earned by the petitioner in 1982. As to the costs awarded by the learned Registrar, it seems to me arguable that, if it be taken that he was giving effect in his order to the view that each side should bear the cost of 3 days of the hearing, he was broadly right in the approach he took. Indeed I think it appropriate also to remark that the respondent should bear in mind that if she persists in her claim for interim maintenance in a sum in excess of $60,000 in these proceedings and fails in that claim, such failure may well be reflected in the order for costs made by this Court."

22. Mr. Payne, after having taken instructions, said that he was prepared to proceed with the appeal upon the basis of the balance sheet and expenses for the year ending 1982. He was then pressed by Mr. Pirie to say exactly what he was seeking and he said that he would put the figure being sought upon the basis of the balance sheet itself. He said that his submission was that the husband had a nett income of about $750,000 and that he would have to pay tax on this of about $90,000 which left him with a nett income after tax of $660,000. He said that this was a monthly income of $55,000, rather than the figure of about $34,000 used by the Registrar, and that he would be arguing that on those figures the proper order for the wife and the children should be an amount of $25,000 per month plus the rent of $6,000 per month for the flat. He said that he would also be asking for $10,000 per month with regard to the expenses of the children. He said that the total being sought then would be $41,000 which would leave the husband with the sum of $14,000. He said that he would be asking the Court to bear in mind that the husband's income was a rising one and that when one considered the 1982 figures, he would, in fact, have more than the $14,000 left.

23. Mr. Payne then continued to address upon the basis set out above. On the wife's figures the husband's income had been understated by $21,000. She was now asking for $41,000 instead of the $21,000 which I assess as the approximate figure the Registrar had in mind when he made his order. She was therefore asking for $20,000 of the $21,000 (i.e. the amount of the understatement). Indeed if a figure of less than the $21,000, which was her estimate of the understatement, is taken then she was seeking an order Which would give her more than the total amount of the understatement.

24. Given the above it is not surprising that Mr. Pirie during the course of the afternoon indicated that he wished to cross-examine the wife and would be attacking her evidence, which had been given both in affidavits and before the Registrar, that she had no independent earnings or assets. I pointed out to Mr. Pirie that the learned Registrar had already dealt with this matter saying, "The wife has had substantial property assets and dealings and has sources of income from this and elsewhere. The full extent of this may have to be canvassed in further proceedings. She is clearly not without independent weans and is not solely dependent on the husband" and that this finding was in his favour. Mr. Pirie indicated that he was now in a position to show that the wife had incomings of $60,000 a month. The respondent/wife was then called and Mr. Payne examined   her as  to the out goings for the children's schooling and medical expenses.

25. Upon resumption on Friday, 15th July, Mr. Pirie said that he was not agreeable to limit the appeal as had been suggested by Mr. Payne and that he wished to cross-examined the respondent/wife as to various bank accounts which he said had come to the knowledge of the petitioner since the commencement of this hearing. I considered that he was entitled so to do and after lunch on Friday, 15th July, he proceeded with his cross-examination of the respondent/wife.'

26. The cross-examination of the wife occupied 4 days. At its conclusion I was satisfied that there was a substantial body of acceptable evidence which indicated that the wife, because of her husband's conduct as she saw it, had convinced herself not only that lie must, regardless of cost, provide the very best for herself and the children, but also that it was proper and just that this should be so. I was satisfied that she was not a witness of truth and was prepared to conceal from the Court anything which she thought might tell against her.

27. I do not intend to canvass all of the cross-examination but will illustrate the quality of her evidence by the following references thereto.

28. She was cross-examined at length about an incident in July 1982 when it was alleged she had tried to obtain double payment of the monthly maintenance payment of $9,000 by, first, pretending   that a maintenance cheque, No.743929, could not be cashed because it was not in her full name and by then, having obtained a second cheque, attempting to bank both cheques. It was clear that cheque, No.743929, was paid into the bank and cashed on the 23rd July 1982 and the second cheque, No.743930, which was provided after the complaint about the first cheque, was also banked.  No payment was ever made with regard to the second cheque because the husband, having learned that his account had been debited as regards the first cheque, put a stop order on the second cheque.

29. The witness was unable to say into what account she had paid that cheque and indeed no satisfactory explanation was ever forthcoming with regard to the bank no that cheque or, indeed, as to how she chine to bank both cheques.

30. Mr. Pirie then turned to cross-examine the witness about Savings Account No.3167-9 with the Hong Kong Chinese Bank. The witness had never revealed the existence of this account either before the Registrar or in any of her previous affidavits. She tried to explain her failure so to do by saying that she had dealt with the matter in her affidavit of June 1982 in which she had said that she had done some investment for her father. Her explanation appeared to be that, as she had mentioned that she did some investment for her father and as this account was concerned with that investment, she had, by implication, revealed its existence. She agreed that moneys came into this account from an account at the Ka Wah Bank held by her father. She suggested that these moneys. must have come from the share transactions which she was, doing for her father.

31. She was questioned about the transactions shown in the account as having taken place in the first months of 1981. She agreed that on the 2nd February 1981, $110,780 was trans-ferred into Savings Account No.3167-9 from the Ka Wah Bank and that on the 26th March 1981, $106,308 was paid in from the Ka Wah Bank to that account. She agreed that on the 22nd May 1981, she transferred $83,500 from  the Savings Account No.3167-9 to her Current Account No.6097 and that she then drew out $83,509 60.  She agreed also that on the 28th May 1981 she transferred $50,500 to her Current account and that she then cashed a cheque in that sum. She agreed that on the 24tn June 1981, she transferred $133,731 50 from the Savings Account to the Current Account and then drew a cheque in that amount. She agreed that on the 3rd July 1981, she transferred $32,320 from the Savings Account to the Current Account and then drew a cheque on the Current Account in that amount on the 3rd July, the same date. She agreed that on the 9th July, she transferred $87,800 from the Savings Account to the Current Account and then drew a cheque in the sure of $87,782.25 on the Current Account. These figures show that in the period of 31/2   months, from 26th March to 9th July 1981, she withdrew just under $390,000. She agreed that the Savings Account had a balance of $5,000 on the 9th July 1981 and that on the 22nd July 1981, she deposited $32,320 therein and that as at 1st September 1981, that account had a balance of $55,743.47. She denied that she used the Savings Account to make disbursements with regard to the matrimonial home. She denied that Savings Account No.3167-9 was used by her to deposit and withdraw her own moneys. She said it existed so that she could act on behalf of her father in relation to sums obtained from the buying and selling of shares. She denied that in 1978 while her husband was still working with the Government, she had been crediting small amounts, coming from her husband to that account. She denied that the credits, after the opening of her husband's clinic on the 23rd May 1979, which were in varying amounts of cash, came from the takings of the clinic. She said that these amounts were, "Some by way of cheque, and some cash. Those were money in relation to buying/selling of shares and my father gave me the money to put into my account". She was invited at this stage of her evidence by the Bench to produce a running account with regard to these amounts and she said that she would ask her stock-exchange company to produce a list to that effect. In the outcome, however, no such account was ever produced. She was asked where the sum of $200,996 deposited on the 4th August 1979 had come from and she said, "By investment - certain shares were sold out". It was put to her that she had sold the shares in order to realize enough money to purchase a flat at Wongneichung Road and that, for this purpose, she had withdrawn $203,500 from the account. She said that in June 1979, the Wongneichung Road flat was purchased but said that she had bought it on behalf of her father. She was asked to explain why, given that the money was said to be coming from share-brokers and would, therefore, be expected to have been paid by way of cheque, there were so many cash payments. She said that, apart from the proceeds of shares, sometimes her father merely gave her his own money to put into the account. This explanation, advanced for the first time, was  elicited from the witness in circumstances. where she was finding it difficult to explain why there should be so many cash payments into an account which was said to have existed for the purpose of receiving money from share transactions. It was, in my view, gravely suspect. As to the payments from the brokers, she said: "In relation to share business, it would be always the cash. Cheque or cheques would be given to my father. Cheques would be handed to me and would then go into this account It was difficult to understand her evidence in this regard but she finally agreed that the cash payments were moneys which came from her father's business and the payments by cheque were ones which came from share transactions.

32. When asked about the purchase of the shares, she said, in answer to a question from the Bench, that the shares were put by the broker sometimes into her name and sometimes into her  father's name. It was put to her that she had never produced the accounts for share-dealings. She avoided giving a direct answer to this question by saying that site had mentioned "about it in paragraph 37 of her affidavit". It is true that a mention was made in that affidavit of the matter but it was a mention which did not, in any way, descend too specifics. She agreed that on the 7th March 1980, she had a balance of $128,817 in the account and that on that date there was a transfer of $102,018 to the account. She said she was unable to say where that money had come from, but she agreed that on the 13th March, she withdrew $234,549. It was put to her that this was for the purchase of a flat at Dragon Court. She said that she was unable to recall and it could have been that her father wished to purchase some shares.

33. The witness was then shown some transfer slips. She agreed that they were signed by her but denied that the deposits from the 17th September 1980 had come from her husband's practice. She said that the moneys represented therein had come from her father or had been transactions from buying and selling shares. She was asked about a withdrawal of $179,000 from her Current Account and she said that it was used for transaction". When asked to be more specific, she said that she was unable to recall any detail. It was then put to her that it was an amount used as a down payment for the purchase of a flat at Braemar Hill and she said that may be it was. She agreed that on December, 10th, 1980, she deposited in her Savings Account 3167-9, a sum of $823,253. She was then asked where this money came from and said that it was "by way of my father's investment". She was asked again where it came from and said, "his investment''. It was then put to her that it was the proceeds of the sale of Dragon Court and she said, "May be part of it". She agreed that on 10th December, 1980, she had a credit balance in the account of more than $1,000,000, and that the transfer of money on December, 12th was by way of cashier's order to purchase the Braemar Hill flat.

34. The witness, as set out above, had answered initially that the amount of $823,253 was "by way of my father's investment". When pressed to say where it had come from and she said, "his investment". She was then asked whose cheque it was and she said, "After selling out something that person gave a cheque She was asked by the Bench whether that person was her father and she said, 'The buyer issued a cheque". It seemed to me clear, that the witness was not making any effort to give a full and frank answer to this question. She was finally pressed to ask whether the amount was the proceeds of the sale of the flat at Dragon Court and she said, "May be part of it". She agreed that the Braemar Hill flat cost $1.3 million and that $1,000,000 came from her account and that $300,000 had to be borrowed from the Heng Seng Finance. When asked where the balance came from, she said that she didn't know, but that it had been paid already. She said that, "might be" her father who bought the cashier order and got the $200,000. She said that she believed that a further $51,200 transferred from the account on December, 12th 1980 was part of the payment for that flat and she said that a further amount of $68,000 which was transferred to Account No.6009 on the 26th January 1981 was used she thought, for the buying and selling of shares She agreed that on the 28th January, she transferred $30,000 to her Current Account and drawn a cheque therefrom in the sum of $36,000. She was then asked whether her evidence before the Registrar, in which she had said that she had disclosed all accounts was true or whether her evidence today, in which she was agreeing that the Savings Account did exist and had not formerly been disclosed was true. She said, "All along I have been telling the truth". She maintained that her earlier evidence was the truth because the Savings Account had been closed when she was giving evidence and the moneys formerly in it had been transferred to the Current Account.

35. Elsewhere in her evidence, she seemed to be suggesting that the reason she had not been untruthful in failing to disclose the existence of the Savings Account was because it was really her father's account. She said that she did not disclose Savings Account No.3167 because it was held "for my father." She continued to maintain that she had mentioned it in her affidavit of June 1982. This was, as I have already indicated, quite wrong. Such an account was never mentioned in that affidavit. What she said in the affidavit was that she had done some investing for her father.

36. She was asked about a letter sent on the 27th June 1983 to her solicitors asking her to disclose all accounts whether jointly held or otherwise with which she was connected. She said that she understood she had to make such disclosure. Let me say without hesitation that I reject wholly her explanations as to why she didn't disclose the account. I am quite satisfied that she knew perfectly well that she should have disclosed the account and that she deliberately refrained from so doing because she felt that it might be too damaging to her case.

37. She was asked why she had not disclosed the share trading some of which was in her name although, according to her, done on behalf of her father. her explanation appeared to be that "In buying or selling shares, one did not have to have the name changed. Sometimes shares only held for days or weeks She went on to say I did not hold them. I merely had it on behalf of by father". It was not alto ether clear what her explanation was, whether it was because the shares had never actually been in her name or whether it was because, although some of them had been in her name, she didn't feel she was required to make the disclosure as she was doing it on behalf of her father. Finally she said that the position was that for the past "three years she hadn't caused any certificates to be changed into her name. This did not seem to me to be in accord with her earlier evidence.

38. I was satisfied that the finding of the learned Registrar that she was "not without independent means" was wholly justified.

39. Whether the money is invested or simply secreted I do not know, I am, however, satisfied that she has substantial assets which she has never disclosed which came originally from her husband's practice.

40. She was then asked why she had denied having a betting account (B1/21) when, in fact, she did have a betting account with the Royal Hong Kong Jockey Club. The account, while it was operational, showed considerable activity and the final result of the betting through the account was a loss of more than $8,000. She attempted to explain why she had denied having a betting account by saying that a Jockey Club official had told her that the account was closed. I found her explanation completely unacceptable.

41. The cross-examiner turned to the question of the $45,000 given by the husband to his wife and she admitted that she had paid this amount into account No.3167 which, of course, she had been saying was an account reserved for moneys which belonged to tier father. Her explanation as to why this money went into that account was as follows, All of a sudden, he gave me the money and I had no bank-book in my handbag. That is why I proceeded to way father's office to obtain the account book No.3167 and that is why I put the $45,000 into the account". I did not find this explanation at all convincing.

42. She was cross-examined about the extensive physiotherapy treatment which her son was undergoing for what has been described as either mild cerebral palsy or a "clumsiness" syndrome. It was put to her that she was unnecessarily insisting that the child be treated every day with physiotherapy. Her reply to this was that it was the wish of the child. It was suggested to her not only that she was insisting on the child having more physiotherapy than was really necessary, but had also indicated to the physiotherapy clinic that they should "charge in the usual manner". A letter from the clinic was produced and shown to her which stated that she had made such a request. It was suggested that if she had made it plain that they were treating a doctor's son the clinic would have been given a substantial rebate. She had to agree that she had not made it plain that her son was a doctor's child, but suggested that the clinic must have known and that it was up to them to impose the appropriate charge.

43. The cross-examiner then turned to the question of the physiotherapy treatment being given to the son saying that Dr Harry Fang would be prepared to say that the mother, suitably instructed, would be able to do the exercises with the son without need for daily visits to the physiotherapist. The wife said that she was not aware whether this would be possible.

44. The Bench suggested that since April 1979, when her husband was earning about $11,000 p.m., and the present time, when she was suggesting that she needed an amount in excess of $60,000, she had accustomed herself to a much higher standard of living. She said that the standard, even when he was in Government, was higher than would be indicated by her   husband's salary as he was in receipt of gifts from patients and because the family were entertained regularly by patients. I was satisfied that she greatly exaggerated the position in this regard. She said that in 1980, she had never had arguments with her husband about her taking money from the clinic, but that, in fact,her husband had come home from the clinic and given her money collected thereat and said to her that it was only a minor portion of his earnings. I note that this is not in accord with the allegation in her answer that since June 1980 the husband gave her no money and forced her to go to the clinic to get money.

45. As to the question of servants,she said that there had been two servants in the household since the 16th January 1981. This, of course, was the year when the marriage broke up, and she said that she needed two servants even though she was not working. Her words were, "I am accustomed to two servants". Frequently during the hearing she had a servant sitting in Court beside her. She said that she needed this servant to help to carry the various bundles of the papers that were being used in the litigation.

46. She said that she considered a claim for $9,000 for food to be very, moderate. When the Court suggested that it is neither necessary nor desirable that young children be given shark's fin and bird's nest, she suggested that they had been made used to such luxuries by the father and that, any way, the $9,000 would not, at present day prices, be sufficient to cover such items. Whether or not this be so, the fact of the matter is that she included those items in her claim as justification, in part, for the expenditure of the amount of $9,000. She attempted to explain this by saying that she had simply copied the wording of the claim in this regard from an earlier claim and that she should have deleted those items.

47. I turn now to consider the other oral evidence. A Mr. Henry S.K. Wong, a chartered accountant, was called by the wife. Mr. Wong said that he had examined the books provided to him by the petitioner relating to the petitioner's practice accounts. He said that the books were such that he was unable to form any satisfactory opinion about the accounts. He did not suggest that the accounts were not correct, but simply that they were kept in such a way that, without questioning the person keeping them as to the method and the accuracy of the books, he was unable to offer any opinion about them.

48. Dr. Michael Mak, a paediatrician, was called by the husband He said that he had been consulted by the wife and had examined her son Benedict. He said that his observations were based on the report of a Miss Louisa Lee, a physiologist is attached to his office and also upon reports which had been made by Dr. Rose Mak Dr. S.L.Luk and Dr. Shroff. He said that the intelligence of the child was, at least, hat of an normal child, but that he was physically handicapped because of mild cerebral palsy. He said that the cerebral palsy manifested itself in the child's failure to perform fine motor functions such as doing up buttons and tying  shoes laces. He said that he also had a disturbance of equilibrium which made it difficult for him to walk up and down stairs. He said that his speech was also sometimes effected, especially when he was excited and that, because of poor control of his facial muscles, he at time made involuntary "funny faces". He also told of an eye defect from which the child suffered but said that it had been operated on in 1980 and was now much better. lie said that physiotherapy could definitely improve his motor function and that the exercises required could, provided the mother was conscientious and the child was co-operative, be performed, after careful instruction, an   home. However, he said that professional supervision would still be necessary and that the child should be brought to the physiotherapist two to three times a week. He said that in arriving at this conclusion, he had tried to strike a balance, bearing in mind all of the other factors. He said that he was aware that, as well as having seen the doctors whose reports he used, the child had also seen Dr. Janice Lee and Dr. Fang and that he himself had sent the child to the professor of paediatrics at the University. He said that, in his view, it was not in the interest of the child that he be brought to doctor after doctor but that he wouldn't blame  an anxious mother for taking the child to various doctors and institutions. He agreed that the child had a confidence problem and said that he should be brought to see a clinical psychologist every 3 months for assessment and counselling and should have his eyes checked  every 6 to 12 months. He said that the child could be treated by any qualified physiotherapist but that as he had established a good relationship with the physiotherapist in the Hong Kong Physiotherapy Centre, it was desirable that he continue to attend at that centre. Because of the strong relationship which the child had with his mother, he felt that there should be no problem about the treatment at home. The doctor was asked about the desirability of tutoring for school work and said that he himself objected to tutoring but had to admit that his own wife had his child tutored. He said that playing the piano might help Benedict's fine motor function, but he sounded a caution in this regard saying that any such exercise had to be approached with care lest it disturb the child's confidence.

49. The petitioner gave evidence saying that he was prepared to pay for any further physiotherapy treatment needed by the child. He said that he would arrange for the child to continue to attend as recommended by Dr. Mak, at the Hong Kong Physiotherapy Centre.

50. The witness agreed that Benedict did need tutoring in Maths but he did not consider that tutoring was necessary in other subjects. He said he was agreeable to pay a monthly sum with regard to tutoring, but that he had to be certain that the sum was being spent on his son.

51. He agreed that in June 1982 in his first affidavit he had said that he estimated he was earning $35,000 per month nett and that that meant before tax. tie agreed that when he came to give evidence in November 1982, he had said that he then believed his nett earnings to be $38,000 to $40,000 and that he had said to the Registrar that he had lost patients and that the cost of rent and drugs had gone up. He agreed that the implication to be drawn from his evidence was that his income was down. It was put to him that the analysis of his practice showed that his income increased in the months from July to October. He agreed that was so and agreed that he must have known the rate at which the fees were running. He agreed that after 10 months he would have known the approximate figures that he had received. He agreed that he knew that his income was $10,000 more than the figure he was putting forward to the Registrar, but said that, he had in mind "current expenditure - legal cost, how long it would last." He went on to say that he was thinking about the cost of the injunction which he had taken, out to prevent his wife interfering with him at his clinic and that this was a figure which he felt could be included in the figure of expenditure and therefore deducted from his nett income. He agreed, however, that he had nowhere said, while giving evidence, that he was making any such deduction. He then went on to say that he had worked out his nett income by looking at the first 6 months' takings and had taken into account when so doing the cost of the injunction and said that he had not, at that time when he gave evidence, worked out the figures for July to October. His words were, "I haven't done the addition at that time, I did that in December". I do not accept the petitioner's explanation as to how he came to understate his income. I am satisfied either that the petitioner was deliberately lying to the Registrar and deliberately understating his income or, that he was careless in failing to familiarize himself, for all of the figures before coming to give evidence. If he was careless, then the carelessness, which allowed him to understate his income by a substantial amount, was both convenient and culpable. It is now clear that the petitioner's income was substantially more than the amount stated to the Registrar. Whether he misled the Registrar deliberately or through carelessness, he cannot, whatever the conduct of his wife, wholly escape the consequences that follow from the fact that, as the Registrar was not in a position to make a proper assessment, resort had to be had to this Court.

52. It was put to the witness that there was a substantial benefit to him in the entertainment allowance and he agreed that this was so. He was not prepared to commit himself, however, in this regard, as to the motor vehicle allowance and the depreciation allowance.

53. The witness admitted that there had been some change in the standard of living of the family after he had set up in private practice saying that there was then more money about. I was quite satisfied that the witness was truthful when he said that he did not really know how much the wife had been taking from the practice. The Witness, when he sought to explain now he was able to purchase a new BMW motor car in 1980, had to fall back upon the explanation that he was using his "winnings from racing". This is, of course, an explanation often used by persons seeking to explain the source of moneys which are in excess of their disclosed earnings. The witness said that he had revealed to the Registrar that he won roughly $50,000 a year at racing, but he said that, as a matter of fact, it was much more than that. He said that in 1980 he was able to point to at least two cheques from the Hong Kong Jockey Club in payment of winnings. Wherever the excess moneys may have come from, be it from race Winnings or from the practice, the fact of the matter is that Mr. Registrar Wilson had before him an admission by the petitioning husband that he received an extra $50,000 a year from some source. This was doubtless in the Registrar's mind when he came to his decision in the matter. The witness finally admitted that the Registrar had been under the impression that he was earning only $40,000 per month, but that, in fact, he was earning more than this.

54. There is nothing in the evidence to establish to my satisfaction that the husband is earning more than he has now disclosed. I consider that he does derive some personal benefit from his entertainment deduction and think it fair when making an assessment of his income for the purpose of this hearing to halve the figure claimed. I do not consider there is any evidence to warrant my interfering with the figures claimed for motor vehicle expenses and depreciation. The husband's nett income can therefore be taken to be $696,000. His income after tax would be approximately $604,000 giving a monthly figure of approximately $50,000. The learned Registrar worked on an after-tax figure of approximately $34,000. The income was therefore understated by $16,000.

55. Mr. Pirie suggests I should not interfere with the order of the learned Registrar, even though the husband's earnings are higher than was found by the learned Registrar, as he made a reasonable and proper assessment based upon his view of the wife's needs. He submits that this was the proper approach to adopt in an application for interim maintenance and that, even if the learned Registrar had been aware that the husband's earnings were higher than he thought, he would not have increased the amount of his award. I cannot accept his submission as I have no doubt that the learned Registrar had in mind, and properly so, the amount of the husband's earnings when arriving at the figure he awarded. As this is an application for interim maintenance I do not propose to attempt to make any finding as to extent of the wife's assets. However, when fixing the figure to be awarded, I bear in mind that she has substantial assets which initially came from her husband. I bear in mind also that I am not called upon to take a long term view, but am required to fix a reasonable figure having regard to the needs of the wife and children and the ability of the husband to pay

56. As I have already indicated I find myself in overall agreement with the approach and the findings of the learned Registrar. I hold as follows:-

57. The Notice of Appeal asks that the order be backdated to 20th October 1981. The learned Registrar refused to back-date the order bearing in mind no doubt that the husband had been paying $9,000 per month and the rent and that the wife was "not without independent means''. I am satisfied that he was correct in so doing and will not interfere with that part of his order.

58. The present order will be back-dated to the first of April.

(1)    (1982) 12 H.K.L.J. 83

Representation:

Mr. Pirie (King & Co.) for Petitioner.

Mr. Payne (Victoria Y. Chan & Co.) for Respondent.