Lai Ling Ling v. Chun Foo Keung

HCMP263/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 263 OF 2003

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BETWEEN

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Coram : Deputy High Court Judge L Chan in Chambers

Date of Hearing : 30 September 2005

Date of Delivery of Decision : 30 September 2005

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D E C I S I O N

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1.The plaintiff has obtained an order for ancillary relief in the Subordinate Court of Singapore.  That order was made under divorce proceedings brought by the plaintiff in Singapore against the defendant, her former husband.  The plaintiff applied on 18 January 2003 to register this order under the Foreign Judgment (Reciprocal Enforcement) Ordinance, Cap. 319.

2.The Singaporean order provided that the defendant had to pay maintenance to the plaintiff and their three children at the rate of S$1,000 per month from 1 February 2001 onwards and that the matrimonial property in Sha Tin, Hong Kong be sold with proceeds to be divided equally between the plaintiff and the defendant.

3.On 22 January 2003, Master Mary Yuen registered the Singaporean order for the purpose of payment of maintenance at S$1,000 per month from 1 February 2001 to 31 January 2003 and also for the sale of the matrimonial property and division of proceeds. 

4.A further order has been made by Master J Wong on 22 December 2004 to govern the mode of sale of the property and the distribution of the net proceeds.  The sale will be completed on 10 October 2005. 

5.However, in the meantime, the defendant had not paid any maintenance to the plaintiff despite the registration of the order.  The plaintiff therefore applied on 30 August 2005 to have a supplemental order for payment of maintenance in arrears at S$31,000 for the period from 1 February 2003 to 31 August 2005 with interest and for further maintenance at S$1,000 per month from 1 September 2005 onwards.

6.The plaintiff says that when she applied for registration of the order in January 2003, she did not seek to include the maintenance from 1 February 2003 onwards as she at that time wanted to leave her options open.  I note that section 8 of the said Ordinance provides that no proceedings for the recovery of a sum payable under a foreign judgment, being a judgment to which the provisions of that Ordinance apply, other than proceedings by way of registration of the judgment, shall be entertained in any court in the Hong Kong Special Administrative Region.

7.Thus, once a part of the Singaporean order relating to future maintenance should be registered under this ordinance, the plaintiff would not be able to take any other enforcement proceedings including those under section 9 of the Maintenance Orders (Reciprocal Enforcement) Ordinance, Cap. 188 to enforce this part of the judgment.

8.However, in the light of the defendant’s persistent failure to pay maintenance and the completion of sale of the matrimonial property becoming imminent, she therefore seeks the supplemental order referred to above.  The Registrar refused her application on 12 September 2005 and she now appeals against that refusal. 

9.In the light of the persistent refusal of the defendant to pay maintenance and the imminence of the completion of the sale and division of the net proceeds, which are new facts arising after the making of the order by Master Yuen on 22 January 2003, I am of the view that the supplemental order is justified. 

10.I also refer to In v Scowby [1897] 1 CH 741 at 754, Ford-Hunt v Raghbir Singh [1973] 1 WLR 738 at 740 and Republic of Somalia v Woodhouse Drake & Carey (Suisse) SA & Others [1993] QB 54 at 60 to 61.  I am satisfied that I do have the jurisdiction to make this supplemental order. 

11.I therefore allow this appeal and make the supplemental order in terms of the draft annexed to the written opening of the plaintiff’s counsel.  I also order costs of this application and of the appeal be to the plaintiff and the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr Bernard Mak, instructed by Bough & Co., for the Plaintiff

Defendant, in person, absent