Choi Wai Fung v. Choi Yat Kit

HCMC000080/1969

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: 6th day of January, 1970.

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DECISION

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1. This is an application for maintenance by the Petitioner for himself and the two children of the family.

2. The parties were married on the 20th May, 1960 and the two children are Choi Siu Kei born on the 2nd October, 1960 and Choi Siu Man born on the 15th September, 1962.

3. A divorce petition was filed on the 23rd May, 1969 which incorporated a prayer for alimony pending suit and maintenance. No appearance was entered by the Respondent and the case accordingly proceeded as an undefended cause.

4. A Decree Nisi was granted to the Petitioner on the 30th September, 1969 on the grounds of cruelty and an Order for custody of the two children was made in favour of the Petitioner.

5. The proceedings for maintenance came before me on the 16th December, 1969 when evidence was called for the Petitioner. The Respondent was not present at this hearing. The Petitioner's evidence was confined to her affirmation of means dated the 9th December, 1969. According to the affirmation the Petitioner is employed as a telephone operator and typist at a monthly salary of $375 and she has no capital assets. Her monthly expenses amount to $588 which covers food, school fees for the children and other incidental expenses. The Petitioner at present lives with her mother but does not pay any rent for the accommodation provided.

6. The Manager, Mr. Luk Tung Wo of the United Overseas Motors Ltd. gave evidence that his firm employs the Respondent as a car salesman and that he had been so employed since March 1969 at a monthly salary of $300.  He produced a list of the Respondent's earnings including commission paid since the commencement of his employment until the 21st, November, 1969. The commission paid over this period amounted to $20,635.20 and salary to $2,700 making a grand total of $23,335.20. Mr. Luk said that the Respondent had purchased an Izuzu car from the firm about a month previously for $10,350 making a $350 down payment and had arranged to pay the balance by further monthly instalments of $350. The commission monies paid to the Respondent were in respect of the sale of public light buses and Mr. Luk said his firm had sold 200 to date and anticipated selling 400 during the next 12 months. Mr. Luk unhesitatingly said that the Respondent can maintain his present earnings and was sure that he could earn $2,000 per month.

7. Having heard the evidence for the Petitioner I adjourned the hearing for a week and made an Order for the Respondent to attend before me pursuant to Rule 51(2) of the Matrimonial Causes Rules 1968.

8. At the adjourned hearing the Respondent appeared pursuant to the order and elected to give evidence on oath. He confirmed the details relating to his employment and his earnings as listed in the exhibit produced by Mr. Luk. The Respondent stated that he had no capital assets apart from his car and that he lived in a flat on his own. He set out his liabilities as: -

9. The Respondent lives on the Island and works in Kowloon which accounts for the expenses relating to crossing the harbour whilst the payment of $850 is in respect of payments made to runners who introduce business. The figure given by the Respondent in his evidence relating to runners was $800 to $900.

10. In cross-examination the Respondent said that his flat consisted of a sittingroom, kitchen and bathroom and that his rent for accommodation had risen since he moved to his present address from $130 to $320. The Respondent admitted having purchased a record player two months previously for $900 and that he had paid cash.

11. The Respondent produced 28 receipts in respect of payments which he said he had made to runners but admitted some of the amounts had not in fact been paid and that he had produced them partly for the purpose of this hearing. It is clear that payments would be payable to runners but on the evidence before me I am unable to place too much reliance on the receipts produced.

12. I accept the evidence of Mr. Luk that the Respondent should be able to earn commission at the rate of $2,000 per month and that this is a fair figure to adopt in these proceedings as the Respondent's present average monthly commission. To this sum will be added his basic salary of $300 making a monthly income of $2,300. I do not consider that the Respondent is entitled to any allowance in respect of his car which is not essential for his employment. I understand that it is customary for persons introducing business i.e. runners would be entitled to receive payments in respect of a successful introduction and that a figure of 1/2 or 2/3rds of the commission payable to the salesman would be paid to the runner. I consider that a 50% deduction from the commission payable to the Respondent is a reasonable figure in this respect.

13. Taking all matters into consideration I shall make an Order for the Respondent to pay to the Petitioner maintenance in the monthly sum of $200 and $125 in respect of each child making a total monthly figure of $450. The Petitioner has not yet applied for the decree nisi to be made absolute but as the 3 month period has expired she is entitled to do so. Accordingly I shall order that the first payment of maintenance will be payable one month from the making of the Decree Absolute and thereafter monthly. The Costs of this application are awarded to the Petitioner. Costs to be taxed in accordance with the Legal Aid Regulations. Certificate fit for counsel.

Representation: