C v. K

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 6299 OF 2000

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BETWEEN 

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Coram : H.H. Judge Bruno Chan in Chambers

Date of Hearing :   23 – 26 January, 8 February 2006 (Submission)

Date of Judgment :   10 March 2006

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J U D G M E N T

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1.This is the Petitioner Wife’s application against the Respondent Husband for upward variation of the maintenance order for the 2 children of the family obtained at the time of their divorce in 2000 and for an order that such maintenance be attached against his income in future.  Although the parties are already divorced, for convenience I shall refer to them as Husband and Wife in this judgment.  They are now respectively 48 and 39 years of age.

Background

2.The parties were married in 1987 in Hong Kong.  The Husband was then a 29 years old insurance agent with AIA while the Wife was a secondary school student at 20.  Shortly after the marriage, the Husband was promoted to a team leader in his company whereby in addition to the usual commissions earned from business brought by his own clients, he would also be entitled to certain overriding commissions on each new insurance policy sold by those agents working under him in his team, thus earning under what was commonly known as a “Dual Commission System”.  For this reason he therefore recruited the Wife as one of his team members by opening an agent account for her with AIA, and would then put his new business under her account so as to earn these additional commissions, a practice which was said to be quite common for married couples in the insurance industry, even though the Wife in this case was rarely involved in the business as she soon became pregnant with the first child, a son who was born later in 1988, followed by a daughter in 1991.

3.In 1992 the parties purchased a property in joint names as their matrimonial home at Filicity Garden, Shaukiwan, Hong Kong for $2.72 million by means of a mortgage of about $2.44 million which was eventually paid off in 1997.

4.In 1994 the Wife enrolled into the University of Hong Kong to study law on a full-time basis. In about June 1997 the parties decided that they needed a bigger home and therefore put their Filicity Garden Property up for sale and entered into an agreement for the purchase of a flat at City Garden, North Point, Hong Kong in joint names for $6.75 million, which purchase was to be completed 3 months later in September 1997, hoping that by then they would have sold their Filicity Garden Property and could then use the sale proceeds thereof for the purchase of the new property.

5.Unfortunately the property market started to fall shortly afterwards and by September 1997 when the purchase of the City Garden Property was due to take place, the parties were still unable to sell their Filiicty Garden Property.  They therefore decided to retain that property and mortgaged it to the Bank of East Asia for a loan of $3.99 million to meet the down payment of the City Garden Property, with the balance of the purchase price secured by a mortgage on the second property to AIA at low interest staff rate.  The parties also ended up remaining in the Filicity Garden Property and let out the City Garden Property for rental income to help out with the mortgage payments.

6.In about 1999 the parties started to live apart from each other after the Wife discovered that the Husband was having an affair with one of his recruited agents called Sandy which eventually led to these divorce proceedings being instituted in July of 2000.  The Wife was then a trainee solicitor which was perhaps the reason why she chose to represent herself in the proceedings.  In any event the parties were able to reach overall agreement on all aspects of the divorce on the following terms : -

1. The Wife shall have custody of the 2 children with reasonable access to the Husband;

2. The Husband shall pay the Wife nominal maintenance of $1.00 per annum for herself, and $5,000 per month for each of the 2 children totalling $10,000 payable on the 1^st day of each month until the age of 18 or cessation of full time education, whichever is the later;

3. The Wife shall transfer to the Husband all her interest in their joint property at City Garden, Hong Kong;

4. The Husband shall transfer to the Wife all his interest in their joint property at Felicity Garden, Hong Kong.

7.These terms were subsequently made an order of the Court on 27^th November 2000 upon the pronouncement of the decree nisi of divorce to the Wife, but perhaps due to an oversight, the term of the Husband’s transfer of his interest in the Felicity Garden Property to the Wife was somehow left out from the filed copy of the order.  There is however no dispute that it was part of the parties’ agreement at that time, which also included that each was to be responsible for the outstanding mortgage of the property he / she was to retain, and that the Husband would allow the Wife to receive the rental income from the City Garden Property to subsidise her expenses including the mortgage payments of the Filicity Garden Property, as he and his girlfriend would be residing in some rented accommodation elsewhere.  The decree nisi was subsequently made absolute on 19^th January 2001, but for reason unclear no steps were taken then to effect the transfer of the respective properties to the parties in accordance with their agreement.

8.Having completed her training, the Wife found a job as an assistant solicitor in one of the local firms at a salary of $40,000 per month which together with the children’s maintenance of $10,000 from the Husband and the rental income from the City Garden Property, she was able to maintain herself and the children as well as meeting the mortgage instalments of the Filicity Garden Property which was then at about $24,000 per month.

9.In May 2001 the Wife moved to another firm at a lower salary of $35,000 per month, which was further reduced to $30,000 in January 2002 due to the then poor economic situation in Hong Kong.  The situation was further compounded by the fact that in April 2002 the Husband started to be late with his maintenance payments for the children, and was in arrears of more then $30,000 by July 2002.

10.Finding herself unable to cope with the mortgage payments of the Filicity Garden, the Wife approached the Bank of East Asia in late August 2002 with a proposal to sell the property, which she hoped for about $3 million, and to pay the balance of the mortgage of $1 million by instalments.  Her proposal was however not accepted by the Bank which instead insisted that the property be sold as soon as possible.  The Wife therefore delivered up possession to the Bank but the property was not sold until after the outbreak of the Sars in August 2003 which caused further down fall of the property market, at a much lower price of $1.58 million, which the Wife blames on the Husband for his initial refusal to co-operate with the Bank, leaving an outstanding mortgage of about $2.5 million still owing to the Bank.

11.In February 2004 the Wife left Hong Kong with the children for Ontario, Canada, having found a job there as a consultant for a business centre at an annual salary of C$40,000 (about HK$260,000) before tax.  She rented an apartment and enrolled the children into the local school where the son is now in Grade 12 and the daughter in Grade 9.  The family has since settled in Canada.

12.On 21^st March 2005 the Wife travelled to Hong Kong to launch the application which is now before me.  Her case is that her income is insufficient to meet the regular expenditure of her family of more than C$8,000 per month, especially with the children growing up and spending more, with extra expenses such as driving lessons for the son and dental braces for the daughter.  The son is now 17 while the daughter will soon be 15.

13.The Wife believes that the Husband, as an experienced insurance manager with almost 30 years of working experience, is earning more than HK$1 million per annum and is therefore able to increase his maintenance for the children without any difficulty.  She also suspects that he has put many of his new business in his girlfriend Sandy’s account with AIA in order to earn additional commissions, as he did with hers in the past during the marriage, which explains why he was able to spend $600,000 renovating his City Garden Property where he is believed cohabiting with Sandy, and drives a brand new Mercedes Benz around town.  She therefore asks that the children maintenance which has never been adjusted since 2000 be now increased to HK$17,563 per month for each child, and that the total monthly sum of HK$35,126, or any sum which the Court may decide, be attached against the Husband’s income in view of his frequent defaults in the past, as at the time of her application he was again in arrears of maintenance for 3 months.

14.The Husband’s case is that he actually earns much less than what the Wife thought at only HK$67,000 per month on average, and denies having placed any of his business under Sandy’s account with AIA, as this practice is no longer allowed by the new Code of Practice for the Administration of Insurance Agents in the insurance industry.  Furthermore, after the Wife left Hong Kong for Canada, the mortgagee bank of the Filicity Garden Property has come after him as one of the joint mortgagors for the outstanding mortgage sum of more than HK$2.5 million, and when he failed to settle the same, the Bank of East Asia brought bankruptcy proceedings in the High Court against him.  To avoid being made bankrupt which he says would have disqualified his insurance licence, he has no choice but to shoulder up the liability which he believes was squarely hers under their divorce agreement, by agreeing to settle the outstanding mortgage by monthly instalments from his income, thereby making it financially impossible for him to increase the children’s maintenance to the amount as requested by the Wife.

15.This application was brought under section 11 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 which empowers the Court to vary a maintenance order made by virtue of inter alia section 5 (2) (a), i.e. periodical payments for children of the family upon the granting of the decree of divorce, and in exercising the powers the Court shall have regard to all the circumstances of the case including any change in any of the matters to which the Court was required to have regard when making the order to which the application relates.

Section 28 (1) of the same Ordinance also provides that where a maintenance order has been made against a maintenance payer and that the Court is satisfied that the payer has without reasonable excuse failed to make any payment which he is required to make by the maintenance order, or that it is satisfied that there are reasonable grounds to believe the payer will not make full and punctual payment in compliance with the maintenance order, or if the payer and designated payee agree to the making of an order under this section, and that there is any income capable of being attached payable to the payer, the Court may order such income to be attached as to the whole or part of the amount payable under the maintenance order and the amount attached to be paid to the specified payee.

16.Furthermore, section (1A) provides that in deciding whether there are reasonable grounds to believe that the maintenance payer will not make full and punctual payment in compliance with the maintenance order, the Court shall take into account all the circumstances of the case including the payer’s past record and conduct in discharging his reasonable financial obligation towards the designated payee before and after any maintenance order is made, and the risk of the payer dissipating his property, while (2A) provides that the Court may at any time after an maintenance order has been made, including in the same hearing in which the maintenance order is made or varied, make an attachment order.

17.I shall start the section 11 exercise with the Wife’s situation, which includes the children’s as well.  There is no question that there have been significant changes to their circumstances over the past few years when they lost their home at Filicity Garden and moved to live in Canada.  Nor is there any serious dispute by the Husband to the Wife’s present income, or her family’s expenses in Canada.  There is clearly insufficient income to meet the expenses, which I find to be normal and reasonable, resulting in a monthly deficit of more than C$4,500, even without taking into account of the various additional expenses and income tax as set out in paragraph 13 of her 1^st Affidavit, which the Wife claims to have been borrowing from her family such as her sisters to meet.

18.While not disputing her current expenses, the Husband suspects that the Wife must have accumulated substantial savings during the marriage including most of his income as well as those commissions from his business which were paid into her account with AIA all of which he claims she has never properly accounted to him.

19.Although matters that went back more than 10 years ago may not seem entirely relevant to the present application, in view of the Wife’s allegation that the Husband has not fully disclosed his income part of which she suspects might have been with his girlfriend, I find it necessary to examine the evidence over some of the parties’ financial dealings during the marriage.

20.The Husband does not dispute the Wife’s allegation of him putting his new clients under her account with AIA to earn more commissions, but claims that she had used the monies in this account for various investments or business activities through her own family during the marriage instead of spending on the family as originally agreed between them, monies which he believes to have been as much as $1 million or more but which she has failed to disclose or account for.

21.The Wife denies this allegation and insists that although the account was in her name, she was never allowed to use the monies and in fact every month when commissions were paid into the account, the Husband would accompany her to the bank to withdraw the same on the same day which were then all handed over to him.

22.The Husband agreed in his evidence at the trial that he did accompany the Wife to the bank every month for the withdrawal of the commissions, but insisted that it was the Wife who not only pocketed all the money paid into her account with AIA, but also his own income as well, leaving only a small sum for his daily use.

23.He also alleges that when the Wife decided to study law in 1994, she refused to use the money in her AIA account for her school fees which amounted to some $40,000 per year, and instead insisted that he paid the school fees for her, and as he did not have sufficient money in hand at that time, he had to withdraw cash from his credit cards accounts to pay for the same for 4 years which is one of the reasons why he is now in such heavy debts.

24.I however find this evidence of the Husband difficult to accept.  At the time when the AIA account was opened for the Wife, she was then still a 20 years old student, while the Husband was 29 already with 10 years experience in the insurance business.  It is not in dispute that it was his idea to open the account for the Wife for only 1 purpose : to put his new business under her account in order to earn additional commissions under the Dual Commission System.  This begs the obvious question : was the Wife in a position to demand that all the commissions including the Husband’s own income be handed to her for her own use without accounting to him ?

25.The Husband’s explanation is that having just married the Wife, he wanted to please her and hence acceded to her unreasonable demand, which may in my judgment be plausible initially, but to say that he would allow this situation to continue throughout the course of the marriage against his wish, in particularly in view of the fact that he obviously needed the income to maintain the family and to meet his own various expenses at the same time, is hardly convincing.

26.Furthermore, based on what I have observed about him at the trial and throughout the proceedings, the Husband appeared thoroughly decisive and assertive, and did not seem like someone who would be so submissive to the Wife.  Similarly, I do not get the impression that she would be such a demanding person based on what I have seen and heard of her evidence in the trial, and that even if she were indeed such a person at the time of the marriage, the Husband could have easily stopped putting his clients in her AIA account in later years if he had wanted to, as after all it was something entirely within his control.

27.In addition, the Husband’s allegation that he had to hand over all his monthly income to the Wife save for a small amount for his own expenses is simply inconsistent with the evidence of his 2^nd Affirmation when he said in paragraph 3 that he was responsible for the family’s daily expenses as well as the children’s maintenance.  His argument that he had had to withdraw cash from his credit cards for 4 years in the total amount of $160,000 at high interest rate for the Wife’s school fees in the law school simply because she refused to use the money in her AIA account, money which belonged to him in the first place, is simply incredible in the circumstances.

28.Whatever the truth about the financial arrangements between the parties during the marriage in particularly over the monies in the Wife’s AIA account, however, I believe that by the time they purchased the City Garden Property but were unable to sell their Filicity Garden Property and had to resort to heavily mortgaging both properties to AIA and the Bank of East Asia respectively, there would not have been any money or savings left with the parties which was also the reason why the Husband had to borrow $150,000 from his father-in-law for his income tax at that time.  The father-in-law also gave evidence for the Wife to confirm that she had not hidden any assets with him.  His evidence were never challenged by the Husband and I see no reason why they should not be accepted.

29.This was also the reason, I believe, why the Husband settled the divorce proceedings with the Wife on the terms mentioned above without any further reference to any other capital, savings or properties which the Wife might have accumulated with the monies in her AIA account during the marriage, regardless of the fact that she was then already a qualified solicitor who drafted the settlement terms which were neither legally complicated nor anything beyond the understanding of the Husband, whom I in fact find to be a very articulate and intelligent witness.

30.I do however agree with the Husband that one of the main reasons why the Wife suddenly left Hong Kong with the children for Canada must be because she was unable to handle the financial problems caused by the Filicity Garden Property and the pursuit of the mortgagee bank, as she has admitted in her 3^rd Affirmation, and that when she failed to reach any agreement with the bank, and under the threat of the bankruptcy proceedings that would sure to come with fatal effect on her practicing licence as a solicitor, she decided to flee Hong Kong for Canada, no doubt a desperate step by a single mother with 2 children, one which might have been avoided or at least better handled if she were able to get assistance or co-operation from the Husband, but certainly not deserving harsh criticisms.

31.This also reinforces my belief that the Wife must have by then run out of any savings or capital and was in a desperate financial situation when she left Hong Kong, and that there is simply no evidence to suggest that she might have been able to accumulate any new savings since settling in Canada.  For these reasons, coupled by the fact that I have found her to be generally a truthful witness, I am satisfied that she has fully and frankly disclosed all her means.  I shall next consider the Husband’s means.

32.The Husband claims that since the divorce he has gradually shifted from marketing to management in his job by taking a 2 years’ management course in Charter Insurance Agency Management run by Life Insurance and Management Research Association in 2002 and 2003.  While admitting that he was able to earn more than $1 million in both 2003 and 2004, averaging between $84,000 and $85,000 per month, he claims that his current income has dropped to only $67,000 per month on average, for which he has produced as evidence a summary of his income statement, annexed to his 2^nd Affirmation, for the months from December 2004 to July 2005.

33.One of the central issues over the Husband’s income is of course whether he has diverted some of his clients and hence part of his income to Sandy’s account with AIA as suspected by the Wife, as he had done during the marriage with her account.  The fact that he did do so with the Wife during the marriage, as he has readily admitted as a common practice amongst married couples in the insurance industry in those days, does lend weight to the Wife’s suspicion, but it does not necessary follow that it must be the case, in particularly in view of the fact that Sandy, as repeatedly argued by the Husband, was merely a girlfriend and not his wife.  While I fail to see any real substance in this argument of wife versus girlfriend by the Husband, which later turned out to be a non-issue when it was revealed at the trial that they have since in fact registered their marriage, I agree that more concrete evidence is needed for the Wife to advance her case.  The Wife says there is.

34.She relies on 6 photographs taken in May 2005 and exhibited to her 3^rd Affidavit marked “CLCR-27” showing both Sandy and the Husband being included in the Hall of Honour of AIA for Millionaires as a result of their earnings for the year have reached $1 million or more.  She believes that as Sandy came from China some years ago and is still only in her 20s, it is unlikely that she was able to earn as much as $1 million without any help from the Husband, which is why she believes that the Husband has been putting his own clients in Sandy’s account, as he used to do with her during their marriage.

35.This is also the reason, the Wife says, why the Husband and Sandy have managed to lead a luxurious life including spending $600,000 renovating their home at the City Garden Property, and driving a brand new Mercedes Benz purchased in Sandy’s name but which the Wife believes actually belongs to the Husband as the 2 letters in its licence number of “AK3168” actually stand for the Husband’s English name of Alan Kwok.

36.The Husband of course denies having put any of his clients in Sandy’s account, explaining that having made a mistake in the past with the Wife’s account which the Wife had then taken control and pocketed all his commissions, he insists that he would not make the same mistake again with Sandy.  Above all, he says that such a practice is no longer allowed under the Code of Practice for the Administration of Insurance Agents.

37.I have to admit that I find the Wife’s evidence that the Husband might have diverted some of his clients or income into Sandy’s account at best circumstantial and speculative, and in the absence of any direct or documentary evidence, I am unable to conclude in her favour.  Even if I were to draw any adverse inference against the Husband on this issue, there is no evidence at all to indicate exactly how much of his income has actually gone into Sandy’s account, or how much of Sandy’s income should form part of the Husband’s, as her situation is different from that of the Wife during the marriage since she does work as an insurance agent for AIA and would have formed her own clientele, whereas the Wife never actually worked as an agent during the marriage and hence all the commissions paid into her account could be said to have come from the Husband.  It is therefore not possible, in the absence of any further evidence, to say how much of the $1 million annual income that Sandy earned last year actually came from the Husband’s clients, if any, and hence should be treated as part of his income.

38.Furthermore, as is well established in cases such as Whitfield v Whitfield (1986) 1 FLR 99, while the court can and will assume that the second wife, as is the case of Sandy, will make a proper contribution from her income to the outgoings of the husband’s household, her income cannot be taken into account as part of the husband’s income available for distribution to the former wife and children, as Sir John Arnold P said in that case in the Court of Appeal : -

“It would of course be quite wrong for the judge to award, in effect, maintenance or periodical payments to the first wife from the income of the second wife; but in so far as the husband’s ability to provide periodical payments for his first wife is affected by the circumstance that he has to keep his second wife and her children, it is entirely relevant to consider the extent to which she is able out of her own resources to contribute to their keep”.

39.On the other hand, should I accept that $67,000 per month is what the Husband is now able to earn ?  He blames his reduced income on the present market environment for the insurance industry which he says is adversely different from the past, as there have been new diverse investment linked products in the market in recent years which account for a large portion of the profit in the insurance industry, but which he is not fully qualified to deal with.

40.In addition, he claims that there was a change of regulations in AIA in 2004 which prohibit its agents in Hong Kong from selling its insurance policies to residents in China which largely accounts for the drop in his current income.  He also explains that the renovation of the City Garden Property was actually done after its purchase during the marriage and not recently as the Wife appears to have implied.  As for the Mercedes Benz registered in Sandy’s name, he claims that it was purchased with Sandy’s money and has nothing whatsoever to do with his income.

41.The Husband’s evidence that he earns only $67,000 per month on average is based on the figures for the first half of 2005.  At the trial in January 2006 he produced the figures for the rest of 2005 (“R-4”) which show a significant improvement to bring the total income for the year to slightly over $1 million, more or less the same as in the 2 previous years, giving him an average monthly income of over $84,000, which does not seem to support his case of a downward trend.

42.The Husband did however produce his various bank statements and credit card statements up to late 2005, which show significant overdrawn situations and unpaid credit card debts.

43.In his 2^nd Affirmation of 12^th September 2005 the Husband put his expenditure at almost $110,000 per month, which exceeded his then alleged income by as much as $42,000 per month, which he says should explain his heavy debt situation.

44.At the trial, he confirmed that his expenditure has since come down to about $82,600 per month after having paid off 2 personal loans as well as his tax loan towards the end of 2005.  Of the remaining items of expenses, the Wife disputes the necessity of his maintaining so many insurance policies that cost $11,000 in total, which the Husband defends that to cancel some of them which he has had for many years would represent a much greater financial loss, or of the alleged maintenance of $5,500 for his parents which the Husband claims to be necessary as both of them are already retired, or of some of the alleged loan repayments to his friends and relatives.  While accepting the Wife’s argument that the Husband’s father should be capable of supporting himself after having sold his publishing business, there cannot be any dispute to the biggest item of the Husband’s expenses, i.e. the repayment of the outstanding mortgage of the Filicity Garden Property, a liability now forced upon him after the Wife has left Hong Kong for Canada.

45.As explained in his 4^th Affirmation, the Bank of East Asia launched an action against the Husband in the High Court under HCA 4577 / 2003 in 2003 and obtained a judgment against him on 1^st March 2004 for the sum of $2,536,278.86 being the outstanding mortgage in respect of the Filicity Garden Property plus interest and legal costs.

46.On 14^th January 2005 the Bank presented a bankruptcy petition under HCB 407 / 2005 against the Husband in respect of the said judgment debt.  To avoid being made bankrupt and thereby losing his licence as an insurance agent and hence his job, the Husband therefore entered into a settlement agreement with the Bank, which is exhibited to his 4^th Affidavit as “KWL-19”, in which he is to sell his own City Garden Property within 4 months and to apply the net sale proceeds which is expected to be about $1 million towards the judgment debt, with the balance of about $1.9 million to be paid out of his income by monthly instalments of about $25,000.  In the meantime he is also required under the agreement to pay $10,000 per month towards the judgment debt until the sale of the City Garden Property when the said payment shall, as aforesaid, be increased to $25,000 per month.  Under this arrangement the Husband estimates that it will take him more than 6 years to pay off the remaining judgment debt.

47.In anticipation of the sale of his City Garden Property, the Husband has moved to a rented flat in the same building for which he claimed in his said Affidavit to have to pay $7,500 per month.  In the same affidavit however he also alleged that the flat has been rented for 1 year at a monthly rental of $17,500 for which he is sharing with a friend called Mr Leung who is occupying one of the 2 bedrooms, while Sandy would from time to time share the other bedroom with him.

48.It is unclear how the Husband’s share of the rental comes to the sum of $7,500 per month under this arrangement, as his evidence on this is both vague and evasive.  The Wife is doubtful whether this Mr Leung is actually sharing the rented flat with the Husband and Sandy, with their joint income there is really no economic reason for them to share the flat with anyone.  I share the Wife’s doubt and that it would be reasonable to assume that the Husband and Sandy are sharing the rental as well as their household expenses, as they must have done throughout their cohabitation.

49.This however would not have much effect in reducing the Husband’s other expenses as most of them are personal in nature and hence are unlikely to be shared by Sandy.  Nevertheless I agree with the Wife that the Husband would still be able to cut down on some of his expenses such as his insurance payments, his travelling expenses and his business entertainment expenses, and at an average income of $84,000 per month, he should be able to increase his maintenance for his children, albeit not at the rate sought by the Wife.

50.In his final submission the Husband has proposed to increase the children’s maintenance in the following manners : -

(i)     from January 2006 to December 2007 by an increment of $4,000, bringing the maintenance to $14,000 per month for both children;

(ii)    from January 2008 by further increment to $16,000 per month;

(iii)   that the situation be reviewed in 2010.

51.The Husband submits that to come up with such increments, he is prepared to cut down on some of his insurance payments, but that it is the best he can do in his present situation, and that to order him to pay more than what he is proposing would mean more financial pressure on him which would not be fair or just under the circumstances.

52.To achieve justice to both parties is of course what the Court aims to do, and I agree that the Husband is entitled to feel aggrieved by the fact that the Wife, and I do not mean to be too critical of her, has not only dumped the heavy burden of the mortgage of the Filicity Garden Property when she left Hong Kong, which was her responsibility under the parties’ divorce agreement, on the Husband’s laps some 5 years after their divorce, but which also has the disastrous result of causing him to lose his City Garden Property, and ended up with a long term heavy burden of repayments for years to come.

53.On the other hand, there is no question that the children are in urgent need of greater financial assistance from the Husband as the current maintenance is clearly insufficient to meet their present needs.  Taking into account of the Husband’s proposal and the prospect of him gaining the necessary professional qualification soon to enable him to widen the scope of his clientele and hence hopefully higher income, and on the basis of his high earning capacity and his past earning records, I believe he should be able to manage a somewhat higher increment to the children’s maintenance than his proposal to $20,000 per month, commencing from 1^st April 2006 and payable thereafter on the 1^st day of each month.  It is of course open to the parties to refer the matter back to Court for review or adjustment anytime in future when the situation warrants.  I accept that this increment has fallen way short of what the Wife is seeking, but is in my judgment ultimately just and reasonable having considered all the relevant circumstances of this difficult case.

54.As regard the Wife’s application for an order that such maintenance be attached against the Husband’s income, I agree that the Husband had been in defaults in the past, all of which he has subsequently made good, but I am prepared to accept his explanation that it was partly caused by the financial problems in relation to the Filicity Garden Property, and on his assurance that it would not happen again, knowing that the Wife can bring the application should he default again when the Court may not be as generous next time, and therefore will not make the attachment order against him on this occasion.

55.Lastly, although neither parties were legally represented and hence have not incurred legal costs, I allow the Wife the costs of her application to follow the event and also because she has incurred expenses including air fares for travelling to Hong Kong for the proceedings.  This is an order nisi to be made absolute at the expiration of 28 days in view of the fact that she resides overseas.

56.My order is therefore as follows : -

1. The maintenance order of 27^th November 2000 be varied to the extent that the Respondent Husband shall as from 1^st April 2006 and thereafter on the 1^st day of each month pay to the Petitioner Wife $20,000 per month as maintenance for the 2 children of the family being $10,000 per child, until the child reaches the age of 18 or ceases full time education whichever is later, or until further order;

2. The Respondent to pay the Petitioner’s costs including costs reserved to be taxed if not agreed.

Both parties in person.