K v. H

FCMC No. 8845/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8845 OF 2007

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BETWEEN

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Coram: Deputy District Judge K.W. Wong in Chambers (not open to public)

Date of Hearing: 15^th July 2008

Date of Handing Down Written Decision: 25^th July 2008

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DECISION

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1.This is the application of the Respondent wife (“Wife”) against the Petitioner husband (“Husband”) by summons dated 2^nd May 2008 for:

i) an order that the Husband do pay her maintenance pending suit (“MPS”) at the rate of HK$26,000 per month until further order back-dated to the date of petition; and

ii) an injunction to restrain the Husband from dealing or otherwise dispose of his end-of-contract gratuity to be received very soon until further order or until disposal of the questions of ancillary relief together with certain consequential directions.

The Application

2.The Wife was represented by Mr. Sousa of the firm of solicitors acting for her while the Husband was represented by Mr. Enzo Chow of counsel. Upon my invitation at the start of the hearing, the parties’ representatives did try to negotiate with a view to an amicable settlement so as to avoid full argument of the summons. Despite efforts, no fruitful agreement could be reached.

3.Before making submission, Mr. Sousa stated the Wife’s position openly: the Wife was willing to accept a monthly sum of $21,000 and payment into Court or joint bank account one-half of the gratuity, but without any deduction therefrom the Husband’s liabilities for additional tax and MPF arising from such gratuity.

4.On the other hand, Mr. Chow made an open offer on behalf of the Husband that he was willing to pay the Wife MPS at the rate of $19,500 per month together with payment into court or in a joint account one-half of the Husband’s gratuity after deducting therefrom the aforesaid liabilities.

The Legal Principles

Interlocutory Injunction

5.It is Mr. Sousa’s submission that the application for injunction was not based on section 17 of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”) which requires the applicant to show intentional dissipation of assets with a view to defeating any claim for financial provisions. Mr. Sousa submitted that the Wife’s application was based on Section 52B(3) of the District Court Ordinance, Cap 336 (“DCO”) which empowers this Court to grant any interlocutory injunctions. Further, Mr. Sousa also relied on Order 29, Rule 2 of the Rules of District Court (“RDC”), which stipulates that this Court has power to make orders for preservation of any property which was the subject matter of the proceedings. Mr. Sousa submitted that these provisions do not require the applicant to show any evidence of assets dissipation.  

6.Although Mr. Sousa did not refer the Court to any authorities to support his proposition, Mr. Chow did not appear to challenge such proposition.

7.Given Mr. Chow’s position, the present injunction application will be proceeded with on the basis that evidence of intentional dissipation of assets is not required.

8.As far as I can understand from Mr. Sousa, his position is that there has been no intentional dissipation of assets on the part of the Husband. However, the recent depletion of the Husband’s assets has sounded an alarm.  Recently, the Husband has paid over $100,000 to his girlfriend. Furthermore he has done some securities trading which resulted in a loss. Although the parties started off with more or less the same level of deposit in their respective bank accounts and therefore the Wife may not need to lay hand on the Husband’s money in his bank, the preservation of half of the gratuity, which is an additional fund and without deduction, is to allow a safety margin for her claim. In any event Mr. Sousa submitted the Husband could still freely enjoy the remaining half upon receipt of the gratuity and satisfy his tax or MPF liabilities out of this share he kept. On the other hand, the Wife has no immediate enjoyment of the preserved half, pending resolution of her ancillary relief claim.

9.Shipman v Shipman [1991] 1 FLR 250 is a case concerning an appeal by a husband against the registrar’s decision restraining him from disposing of or dealing with a sum amounting to about half of the severance payment he was going to receive. The injunction was made pursuant to section 37 of the Matrimonial Causes Act 1973 (“MCA 1973”).  The Hong Kong equivalent of this English provision is section 17 of the Matrimonial Causes Ordinance, (Cap179) (“MCO”). It has been decided in Shipman that:

i)  the court has an inherent jurisdiction to freeze assts which might be put beyond the reach of the applicant, notwithstanding the enactment of section 37 of MCA 1973 (i.e. section 17 of MCO of this jurisdiction);

ii)  the court, when deciding whether to exercise its inherent jurisdiction to restrain the husband, was not required to have regard to the many restrictions and safeguards surrounding the use of worldwide Mareva injunctions and to assimilate the use of and procedure for injunctions in the family court to those in commercial law. The matrimonial field called for a different approach; and

iii)  it is possible for the husband to change his intention and if left without a job and new responsibilities, will be faced with a temptation to eat into the whole of the fund.

The above principles were accepted by the Hong Kong courts and applied in Tan Li Hui v Tan Kian Chee [1997] 4 HKC 94 as per Le Pichon J (as she then was).

10.Accordingly, this Court retains an inherent jurisdiction to freeze assets even without invoking any statutory power. I consider the Husband correct in adopting a position of paying into Court part of his gratuity.  Furthermore, intention to dissipate assets with a view to defeating a claim is no pre-condition to such injunction.

11.However, injunction is an equitable remedy and is an exercise of Court’s discretion. The narrow issue before me is whether, after considering all relevant circumstances of the case, I should exercise my discretion to restrain disposal of half of the gratuity with deductions, or without deductions. As the Court’s discretion is unfettered, in deciding whether to preserve money with or without deductions, the Court can still consider whether there is any intention on the part of the Husband to dissipate assets with a view to defeating the Wife’s claims, though such is not a pre-requisite nor a determining factor. The Court is also entitled to consider whether there is a likelihood of loss of family asset to an extent as to prejudice the Wife’s interest.

12.Mr. Sousa referred the Court to the RDC. With respect, he is wrong to rely on the RDC, although the provisions of both the RDC and the Rules of High Court (“RHC”) under Order 29 are the same. By Rule 3 of the Matrimonial Causes Rules, the RHC, instead of the RDC, are made applicable to all matrimonial proceedings, subject to modification.

MPS

13.There is no dispute that the Court has jurisdiction to grant MPS. Section 3 of the MPPO provides:

“On a –

(a) petition or joint application for divorce; or

(b) petition for nullity of marriage or judicial separation,

the court may order either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition or making of the application and ending on the date of the determination of the suit, as the court thinks reasonable.”

14.Rule 78 of the Matrimonial Causes Rules of the Matrimonial Causes Ordinance, Cap 179 stipulates that: 

“Upon an application for ancillary relief, the court may make an interim order upon such terms as it thinks just.”

15.As can be seen below, the Wife has made application for, inter alia, periodical payment. Accordingly there should not be any dispute as to the Court’s jurisdiction to grant MPS.

16.The learned H.H. Judge Chan has in H v H (unreported) FCMC 1969 of 2007 3^rd October 2007 summarized the principles applicable to MPS application. In short, these principles are as follows:

i) the statutory guiding principle for MPS is such maintenance the court thinks reasonable in the circumstances: see section 3 of MPPO;

ii) the court has an unfettered discretion in making the order Waller v Waller [1956] 300, [1956] 2 ALL ER 234,236, CA and Griffith v Griffith [1957] 1 ALL ER 494, 495;

iii) a broad-brush approach instead of a detailed investigation of the financial position by oral evidence should be adopted.  It is because such maintenance is intended to operate for a relatively short period of time pending the final disposal of the ancillary relief application: see Miller v Miller [1985] 1 HKC 595 per Power J (as he then was). At this stage the court has no time to be perfect: Wong Wai Chi Susanna v Kim Miu Sup Mark (unreported) CACV 203/98 10^th February 1999 as per Liu JA; and

iv) The sole criteria in making the award were reasonableness and needs of the parties as well as the ability of the spouse to pay. Long term view or potential earning capacities or future capital prospect of parties not considered: see Miller v Miller (supra) and LAML v TCCY [2004] HKCU 1056 as per Hon Cheung JA at paragraph 13.

17.I also think that the Court has to take into consideration of the pre-breakdown standard of living of the marriage when considering the reasonableness of the MPS to be granted.

18.I shall, whenever relevant, apply the above principles to the facts of the present case.

Background and Affirmation Evidence

19.I have gone through the affirmation evidence of the parties. I do not consider that there is much dispute of facts between the parties. The Husband does not dispute, and I think rightly, that he is under a duty to maintain the Wife, at least during this interim period, pending the final disposal of the Wife’s ancillary claim. The apparent differences between the parties in this application are their assessment of Wife’s reasonable needs and the Husband’s ability to pay. As such, for the purpose of this application, only brief background of the parties and the marriage are set out.

20.The Husband and the Wife were married on 2^nd November 1991. The Husband, then aged 30, was an investigator of ABCD and the Wife was then 26. After the marriage the Wife worked for various companies as a temporary accounting clerk. The Husband continued to work for ABCD and remained the sole breadwinner of the family.

21.The Husband is presently a senior investigator of ABCD. According to his affirmations, his present monthly salary is $80,445. He confirmed that in August 2008 he will be receiving an end-of-contract gratuity equivalent to 25% of the aggregate of his basic salary earned during his current term of 30-month contract. The exact amount has yet to be confirmed but it is estimated that the same will around $450,000.

22.On 9^th November 1997 the Wife gave birth to the only child of the family, J (now aged 10). Unfortunately since the birth of J the Wife has suffered from post-natal depression and has since received medication, psychological and psychiatric treatment. In or about 2004 she was diagnosed to have suffered from bipolar depression.

23.By consent, custody of J has been granted to the Husband with reasonable access to the Wife, subject to various undertakings of the Husband to the Wife and to this Court regarding child arrangement.

24.Since the birth of J, the Wife ceased working and has since then been a full-time housewife. A Filipino domestic helper was hired to assist in the household chores and taking care of J. The family enjoyed a lifestyle typical of a middle-class family in Hong Kong. They have overseas trips every year, including long haul flights to Europe, North America, Australia and short trips to Southeast Asia, China and Japan. The Husband is entitled to housing allowance from the Government. Before the split up, the family of 4 (including the domestic helper) lived in rented premises in South Horizon of size about 1,065 square feet, with clubhouse facilities. They also enjoyed the use of a family car.

25.They jointly owned a flat in Discovery Bay which was used to be their matrimonial home. This unit was sold in March 2007. After deduction of costs and expenses arising from the sale the net proceed was shared equally by them. There appears to be a slight discrepancy in the parties’ affirmation as to the actual amount that each has received. However, each should have received an amount of around $0.92 million.

26.The parties separated in December 2005. The Wife moved out to a smaller unit in the same housing estate. The Husband paid the monthly rental of $8,500 direct to the landlord. As from April 2006, on the top of rental the Husband paid her $10,000 per month as maintenance. This additional sum was reduced to $5,000 as from July 2006. The Husband’s explanation was that he could not afford $10,000 per month. Her monthly maintenance remains unchanged (i.e. $13,500) since July 2006.

27.The Husband presented his petition for divorce on 23^rd July 2007 based on the facts of consent one-year separation since December 2005. The decree nisi was granted on 19^th March 2008.

28.The Husband said that two and a half years have elapsed since their separation, the Wife has failed to secure any gainful employment. He accused the Wife of malingering for the purpose of claiming ancillary relief.

29.The Wife denied. According to her, her psychiatric condition became unstable in February this year and she had committed suicide by overdose of drugs. She has been hospitalized for about 2 weeks. These facts appear not in dispute.

30.Unfortunately, shortly after her discharge from hospital she suffered from acute appendicitis and received an operation in March 2008. She was hospitalized for another 3 weeks and was discharged in or about mid-April 2008.

31.By chance more than by arrangement the tenancy of her premises was due for renewal during her hospitalization. The Husband renewed the tenancy with the landlord at a rental of $12,000 per month. However, her monthly maintenance was reduced accordingly. The Wife was only paid $1,500 (i.e. $8,500 + $5,000 - $12,000) per month as from April 2008.

Reasonable Financial Need of the Wife

32.Based on the affirmation evidence, I do not consider that the Wife is malingering as alleged or at all. Provisionally I consider the accusation unfair and ungrounded. The Husband does not appear to deny that the Wife has suffered from post-natal depression and subsequently bipolar depression. Furthermore, the Wife has produced a medical report from the Queen Mary Hospital which said that she has suffered a fluctuating course of bipolar affective disorder. The report suggests that prior to the suicidal episode in February 2008, she has been admitted to hospital for another 6 times for stabilization. The psychiatrist is of the view that during the past 2 and half years her mental state was affected by her marital problem and other medical problems. Her psychiatric condition has not sufficiently stabilized, resulting in lack of motivation and poor concentration, which would not be conducive to maintaining a steady job.

33.By reasons of the above, for the time being and for the purpose of her MPS application, I simply treat the Wife having no earning and earning capacity.

34.The Wife set out her expenses in her affirmation in support affirmed on 9^th May 2008. For the purpose of this decision I repeat the same below with the major objections of the Husband contained in his affirmation affirmed on 5^th June 2008 and submitted through counsel. These objections are set out in the last column below:

Item Description	Amount (HK$)	Husband’s Objectionsand Proposal
General
i) Rent	10,000	Wife is living alone, rental of$8,000 at a less-expensive locality reasonable. Saving of $2,000 achieved.
ii) Utilities	955	-
iii) Food	1,500	-
iv) Household Expenses	300	-
v) Insurance	108	-
vi) Domestic Helper	1,560	Wife is not working, assistance of domestic helper not necessary. $1,560 can be saved.
Others (removal and estate agency fee)	333	-
Sub-total:	14,756	Proposed deduction of -$3,560
Personal
vii) Meals out of Home	1,200	$600 can be saved
viii) Transport	900	Husband only incurred $300under this head. Wife needs totake rest constantly and proposed$450, therefore a reduction of $450.
ix) Clothing/ Shoes	700	Reduced by half, i.e. $350.
x) Personal Grooming(including haircut and cosmetics)	1,000	Reduced by half, i.e. $500.
xi) Holidays	600	-
xii) Medical/Dental	1,290	No evidence that consultationwith private practitioners given. Proposed deduction of $600.
xiii) Insurance	1,447	-
xiv) Others	1,300	No particulars given and since suffered from bipolar disorder, this $1,300 dubious and should be disallowed.
Sub-total:	8,437	Proposed deduction of -$3,800
Child
xv) Entertainment/presents	200	On the evidence of the Wife, the Wife is unable to exercise access on a regular basis. It is highly doubtful as to whether the Wife would havea real prospect to incur expenses in traveling with J, nor is it necessary for the Wife to incur expenses for    J’s clothing/shoes, etc. All under this head should be disallowed.
xvi) Holidays	600
xvii) Clothing/Shoes	150
xviii) Lunches andPocket money	500
Others: Transport	100
Sub-total:	1,550	Proposed deduction of -1,550
Total Monthly Expenses:	24,743	Proposed deduction of  -$8,910

35.In relation to the objections raised by the Husband, I would like to have the following comments:

i) the husband proposed a deduction of $2,000 from the Wife’s rental. The Wife in her affirmation said that she has recently found out that in the Tseung Kwan O district she was able to find comparable accommodation at $9,500. As such I allow a deduction of $2,000 as proposed by the Husband;

ii) the Wife has, prior to her marital breakdown, had the service of domestic helper. Now that she only has the service of a part-time domestic helper. I consider the amount reasonable;

iii) regarding food expenses, the Wife only asked for a total sum of $2,700 [$1,500 under (iii) + $1,200 under (vii)] as her food expenses. It averages out to $90 per day or $30 per meal. I think for a family with total income over $80,000 per month, her food expenses are at any rate reasonable;

iv) the traveling expenses of $900 per month represent an average of $30 per day. This is reasonable in the circumstances;

v) for clothings, shoes, personal grooming expenses, I think it is reasonable for the purpose of MPS to allow a total of $1,200 per month. $500 can be deducted under these two heads;

vi) there is no dispute that the Wife has suffered from a psychiatric condition that has resulted her committing suicide earlier this year. She has also suffered from some medical problem that kept her in hospital for 3 weeks, again earlier this year. Her health condition is really alarming. I fail to see why making medical provisions for the Wife to consult private practitioners unreasonable;

vii) regarding “other expenses” in item (xiv), the Wife has set out in page 17 her various other expenses under item 4.2 of her Form E. Those items include Yoga, ceramic, gymnasium, entertainment, Zen class and for newspaper and magazine in the total of $2,140. Since the Wife has been suffering from bipolar depression, I believe such classes and activities are beneficial to her. I allow the same in full;

viii) turning to expenses of the Wife for the child, I do not consider the proposed total deduction reasonable. Given that the Wife has exercised access to the child and will incur expenses when doing activities with the child, I am prepared to allow $800 for her under this head. As such, a sum of $750 will be deducted.

36.By reason of the above, I am prepared to accept a round-off monthly sum of $21,500 as the Wife’s reasonable expenses for MPS purpose ($24,743 - $2,000 - $500 - $750). 

Husband’s Ability to Pay

37.The Husband has a monthly income of $80,445. According to his affirmation made on 5^th June 2008, his monthly expenses, including the MPS of $13,500 presently paid to the Wife, exceed his current income by $8,064.96. They are repeated as follows:

Description of Expenses	Amount (HK$)
General
i) Rent	20,000
ii) Rent for Car Parking Space	1,600
iii) Utilities - Electricity ($1,000) - Gas ($1,000) - Water ($400) - Home telephone ($90) - Home internet ($199) - Mobile phone for Husband and J ($150)	2,839
iv) Household Expenses (including food)	1,650
v) Car Expenses - Annual vehicle licence ($7,664) - Annual vehicle insurance ($1,300) - Annual vehicle maintenance ($12,000)	1,747
vi) Insurance	-
vii) Domestic Helper	3,400
viii) Others - Annual insurance premium for domestic helper ($583) - Annual levy for domestic helper ($4,800) - Annual return air tickets for domestic helper ($2,000) - Traveling expenses ($200)	815.25
Sub-total:	32,051.25
Personal
ix) Meals out of Home	1,214
x) Transport ($600 for Husband and J)	300
xi) Clothing/Shoes	500
xii) Personal grooming (including haircut and cosmetics)	-
xiii) Holidays ($2,352 for myself and J)	1,176
xiv) Medical/ Dental	-
xv) Tax Loan ($120,000)	10,247.32
xvi) Insurance premia	5,382
xvii) MPS to Wife	13,500
xviii) Contribution to mother	3,500
xix) Others (Credit Union Instalments)	2,000
Sub-total:	37,819.32
Child
xx) School Fee	5,200
xxi) Tutorial fee	1,300
xxii) Extra tuition fee - Instrumental classes ($1,354.4) - Ice skating ($550)	1,904.4
xxiii) School books and stationery	187
xxiv) Musical instrument and books	400
xxv) Transport (including school bus and extra-curricular activities)	1,290
xxvi) School lunch	480
xxvii) Medical/Dental	58.33
xxviii) Entertainment/presents	500
xxix) Holidays ($2,352 for Husband and J)	1,176
xxx) Cloth/Shoes	300
xxxi) Insurance premia	1,818
xxxii) Lunches and pocket money	1,000
xxxiii) Other transport ($600 for myself and J)	300
xxxiv) Uniform	84
xxxv) Summer activities ($3,210 paid with receipts)	333.33
xxxvi) Summer Japan Trip ($27,700)	2,308.33
xxxvii) Others	-
Sub-total:	18,639.39
Total Monthly Expenditure:	88,509.96

38.Furthermore, it is the Husband’s evidence that in the near future, he will be incurring further expenses in the total sum of $13,800 per month, as to $8,300 for his education, clubhouse membership and his girlfriend, $5,500 for J’s boarding expenses (commencing September 2008) and extra-tuition fee (commencing September 2009).

39.I do not think it is necessary for the time being to consider the anticipated expenses of the Husband. Firstly, as correctly pointed out by Mr. Sousa for the Wife and which has not been denied by Mr. Chow, though he claimed he did not have much details, the Husband expects to receive a salary adjustment soon by the HKSAR Governemnt. Mr. Sousa said that the increase would be in the region of 6.3%. Although there is no affirmation evidence on the actual rate of increase, I do not think the parties will hotly dispute there will soon be salary increase for the Husband in the near future. Any anticipated increase in expenses of J can be met out of such increase.

40.Secondly, as there is no evidence at all about his girlfriend, such as whether she is now co-habiting with the Husband, her working capacity as well as why she should not be working, I see no reason why the Husband should be financially supporting her. Any maintenance to his girlfriend for the time being will not be regarded as reasonable expenses.

41.Thirdly, no particulars have been given regarding the Husband’s future education. No provision will be made in this respect for the purpose of this application. 

42.It is the Mr. Sousa’s submission that the Husband has over-stated his expenses and should have saved a sum $10,641 from his expenses.  In relation to the above table of expenses, I have the following comments:

i)  the utilities bills are obviously on the high side for a family of 3 (including the domestic helper). I think it is reasonable to estimate the total under this head at about $2,300. A sum of about $500 can be saved under this head;

ii)  for car expenses, I am prepared to allow it as reasonable $8,000 for annual car maintenance expenses. An average of $333 ($4,000 per annum) can be saved;

iii)  it is not in dispute the air-ticket to domestic helper will be required once every two years instead of every year. As such, the amount will be reduced by $83 per month under this head (i.e. $1,000 per annum);

iv)  the Husband pays substantially, some $5,382 per month, for his insurance. There is no detail evidence as to the nature of the policies, e.g. whether it is purely accident insurance, a life policy, policy with saving and/or investment elements. As such it will be difficult for this Court to assess whether the expenses are reasonable or not. Normally, if it is for investment or saving, it will be difficult for the Court to accept the same being reasonable. As for insurance against other risk, unless the family has no problem meeting all other reasonable needs, such will not normally be accepted. Since it is the Husband’s case that he has deficit every month, for the purpose of this application, I do not accept this sum as reasonable expense;

v)  it is fair for one to make provision for one’s parent. However if after paying one’s parent one has failed to pay sufficiently for his spouse, the Court has to order provision to one’s spouse taking priority over that to one’s parent. Furthermore, the Wife’s evidence is that the Husband has four other siblings that can share the maintenance of his mother. For the purpose of this application I think a sum of $2,000 under this head reasonable, meaning a saving of $1,500;

vi)  it is not in dispute that contribution to credit union is for saving. As such this $2,000 is not real expenses and should be disallowed;

vii) the Wife has pointed out a calculation error on the part of the Husband regarding J’s school fee. The monthly school fee of $5,200 is payable for only 10 months of a year. As such the average monthly school fee is only $4,333, meaning a saving of $867 a month;

viii) I consider musical instrument a capital payment and should be paid out from the Husband’s saving. I allow $200 for musical books only, meaning a saving of $200 under this head;

ix)  the Husband claimed a sum of $1,000 for lunch and pocket money for J. This overlaps with J’s school lunch expenses of $480. The Wife said the school lunch fee is only $480 per month. Obviously these two items overlap. I also fail to see for a child of 10 years of age she needs much pocket money. I allow $300 under this head, meaning saving of $700;

x)  again, I disallow $1,818 for J insurance for the purpose of MPS. There is no evidence as the nature of the insurance. I understand that for middle class family parents are ready to provide what they consider to be the best to their child out of what they can afford. However, is it not the evidence of the Husband that he has deficit every month? If he really wants to protect J by insurance, I think he has to re-prioritize his expenses on J and himself. I believe given his $80,000 odd monthly income he should have no problem juggling around his spending and provide appropriate insurance coverage for J;

xi)  I do not think J needs entertainment and presents expenses of $500. I think $200 can be saved under this head;

xii) the Husband spends about $4,660.33 per month, amounting to about $56,000 per annum for his holidays and his summer Japan trip with J. The spending is on the high side. If he has got a Japan trip with her daughter, it is reasonable to expect him to spend less on other leisure trips or for holidays with J. Beside the Japan trip, I allow $600 for each of the Husband and J, meaning a total saving of $1,152 per month for them. 

43.I will accordingly knock out the above in arriving at the reasonable expenses of the Husband. The total deductions, by reasons of the above are $14,735, rounded up to $14,700. 

44.Since the total spending is about $88,500, the ability of the Husband to pay (on the top of $13,500 per month) is in the region of $6,700 [$80,500 – ($88,500 - $$14,700)].

45.My conclusion for the Wife’s MPS is therefore $20,200 per month ($13,500 + $6,700). At this rate, the Wife may still have a monthly deficit of about $1,300. I do not intend for the time being to date back the payment date to that of the petition as the Court will make final adjustment when it comes to conclude the question of ancillary relief.

Injunction

46.Mr. Sousa has submitted that there been loss of assets on the part of the Husband though it cannot be regarded as intentional dissipation. As such he considers it reasonable to preserve half of the gratuity without deduction in order to allow for a safety margin for the Wife’s claim.

47.The stance taken by the Wife is understandable. However, after taking into considerations of all the circumstances of this case, including the followings, I am prepared to allow payment into Court half of the gratuity, after deduction therefrom the salary tax the gratuity attracts:

i) as Mr. Sousa has submitted, the Wife does not intend to lay hands on the assets currently held by the Husband because they represent basically half of the proceeds of sale of their former matrimonial home of which the Wife has already received her fair share. As such what appears to be the only asset to which the Wife may have a claim is, arguably, the gratuity;

ii) however, the Court has not forgotten that this is a divorce based on consent 1-year separation since December 2005. The gratuity is accruing over a contract period of 30 months and is payable upon expiry of the said term in or about August 2008. The gratuity is therefore accruing during a period after the parties have separated;

iii) there is no intentional dissipation of assets with a view to defeating the Wife’s claim. There is no evidence to suggest that the loss in stocks trading is intentional dissipation. There is also no evidence and suggestion from the Wife to show that the Husband’s spending and investment is irresponsible which is likely to extinguish the Husband’s existing assets and erode into her claimed share of the gratuity; and

iv) the Husband has the custody of J and is expected to make provisions out of the assets of the family for her. Of course I have not forgotten the health condition of the Wife. How these 2 factors interact in the ancillary relief application depends entirely on the evidence to be adduced. However, as the parties have already got an equal share of the major asset of the family, their former matrimonial home, further provision for J by the Husband, if necessary, may have to be made out of the gratuity that he is going to receive. As such I do not consider a so-called “safety margin” for the Wife fair. The Husband may equally want the same margin. In any event, the tax which the gratuity attracts can be regarded as the government’s share of such sum and does not go to the pot of the family assets. When considering the claim of the Wife, the tax liability of the Husband must be taken into account.

48.It is therefore fair to exclude the tax and preserve half of the remaining gratuity.

49.I do not think the gratuity attracts MPF. For tax purpose, it is fair to fix the deduction of the gratuity at 15%, which is the current standard tax rate.

Costs and Conclusion

50.I therefore make the following orders:

i) the Husband do pay the Wife MPS in the sum of $20,200 per month as from the 8^th May 2008 and thereafter on the 8^th day of each and every succeeding month until further order;

ii) such payment be paid by the Husband directly into the Wife’s account with the HSBC No.599-5-013934;

iii) credit be made to the $13,500 per month already made by the Husband to the Wife as from May this year;

iv)  the Husband, whether by himself, his agents or servants or howsoever otherwise be restrained, and that an injunction be granted restraining him from dealing with or otherwise disposing of HALF of his contract end gratuity, after deduction therefrom 15% thereof, to be received by the Husband from the HKSAR Government in respect of his present employment contract with ABCD until the trial of the Wife’s ancillary relief application or further order;

v) the Husband do within 14 days from the date of this order disclose and/or deliver to the Wife’s solicitors details of the said gratuity, including but not limited to any statement of such gratuity as well as the amount and time of receipt of such gratuity;

vi) the Husband do within 5 days upon receipt of the said gratuity from the HKSAR government deposit into Court HALF of the said gratuity after deduction therefrom 15% of the total gratuity; and

vii) liberty to apply for further directions for implementation of the aforesaid orders.

51.Apparently the Wife succeeds on the MPS application but fails on the injunction, I think it is fair to make no order as to costs of this application.

52.I make a costs order nisi that there be no order as to costs of this application. Such order is made absolute after 14 days if no application is made to vary the same.