Ypts v. Tss

FCMP 228 / 2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 228 of 2006

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Coram : H.H. Judge Bruno Chan in Chambers

Date of Hearing : 14 – 16 July 2009, 12 March 2010, 20 - 21 January, 22 February, 14 March, 2 June 2011, and 4 January 2012.

Date of Judgment : 27 February 2012.

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J U D G M E N T

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(Children’s maintenance)

1.On 30^th November 2006 the Applicant Wife issued an originating summons against the Respondent Husband for a declaration  under Married Persons Status Ordinance, Cap. 182 that she is the sole beneficial owner of  and is entitled to possession of the 1/F and Roof of a 2-storey village house at Ian Court ( Phase 1), San Wai Tsuen, Yuen Long, New Territories, Hong Kong (“Yuen Long Property”) now being occupied and enjoyed solely by the Husband. She estimated at that time that the house as a whole was worth about HK$1.2 million. 

2.In the same originating summons she also sought, under s. 10 (2) of Guardianship of Minors Ordinance, Cap. 13, an order for custody of  their 3 children of their marriage then 15, 14 and 8, that the Husband do pay her monthly sums of HK$740, HK$1,460 and HK$2,440 respectively for the children’s maintenance, and for the transfer of his interest in the G/F and garden of the Yuen Long Property to her in trust for the benefits of the children, or that it be sold or secured to meet their children’s past and future maintenance.

3.The case is somewhat unusual in that the parties had actually already emigrated to the U.S. with their children, 2 girls and a boy, more than 10 years ago and made their home there until about 2004 when the Wife filed for divorce in their home state in California, but upon the Husband subsequently returned to Hong Kong by himself in the midst of their divorce proceedings in 2005 without any further participation, and when he failed to comply with certain maintenance orders subsequently obtained by the Wife from the U.S. divorce court, she therefore launched these proceedings in 2006 through her Hong Kong lawyers against the Husband for those reliefs mentioned above.

4.While the Husband may argue that the said property is actually worth quite a bit more at HK$4.8 million, the claims do appear relatively modest and straightforward, but sadly the case had somehow dragged on for far too long, partly for the obvious reason that the Wife was residing out of the jurisdiction, but also because the Husband had during the proceedings raised serious issues over her care arrangement for the children which necessitated investigation by the relevant social welfare organisation, and that at some stage the 2 elder daughters now aged over 18 appeared to be against or at least unsupportive of their mother’s claim against the said property, or so according to the Husband.       

5.Matters were further compounded when his mental capacity was at some stage of the proceedings called into question when it emerged that he had been receiving psychiatric treatment/consultation at Castle Peak Mental Hospital and other out-patient clinics thus necessitating the Official Solicitor to step in to consider representing him in the proceedings which at last turned out to be unnecessary when his latest psychiatric report showed that he is mentally capable of representing himself unaided in the remaining proceedings.

6.Nevertheless and as noted above, by the time the matters finally proceeded to trial the 2 daughters were already over the age of 18 and whom the Husband believes to have been working part-time to support themselves and hence no longer need his financial assistance, and that he was also ready to concede on the custody care and control of the son to the Wife and on her entitlement to sole beneficial interest in 1/F and Roof of the Yuen Long Property, but claimed that he barely earns enough to support himself as a garage worker, and has offered to let out the garden of the his property in order to pay HK$2,000 per month for the maintenance of the son, but insisted that he needs the G/F of the Property for his home, hence it should not be sold or otherwise dealt as sought by the Wife in her application.  These propositions were however not acceptable to the Wife and so the questions of the children’s needs and the Husband’s means to pay remain the main issues between the parties.       

Background

7.The parties were married in 1989 in Hong Kong out of which 3 children were born : daughter TKY on 30^th October 1991 and now as aforesaid aged 20, daughter THY on 16^th October 1992 and now aged 19, and son TSC born on 4^th August 1998 now aged 13. During the marriage the parties ran some trading business in electronic components together and purchased various properties at different times including the said Yuen Long Property which became their matrimonial home in Hong Kong. For some technical reasons not necessary to go into here, the 2 storeys of the said Property carry separate titles in that G/F was registered in the Husband’s name while 1/F was in the Wife’s. It was by all account a comfortable but modest standard of living for the family.

8.In 2000 they emigrated to San Francisco, California after disposing of their business and properties save for the said Yuen Long Property. They rented an apartment in San Francisco as their home and sent their children to the local schools. The Wife then worked as a merchandiser while the Husband worked as a driver/delivery man.

9.In about 2002 the Husband met a traffic accident and while no details thereof have been provided, it is not in dispute that he did receive serious injuries in particularly to his elbow, and was off work for 2 years for which he was subsequently awarded damages in the sum of US$80,000.   

10.Unfortunately their marriage started to unravel thereafter mainly over financial matters, and in September 2004 the Wife instituted divorce proceedings in San Francisco whereupon the Husband moved out of their apartment, and after attending court on 23^rd and 25^th August 2005 initially trying unsuccessfully to oppose the divorce, he left the U.S. a few days later to return to Hong Kong to their Yuen Long Property without any further involvement in the U.S. proceedings.

11.On 29^th September 2005 the U.S. divorce court ordered that the Husband shall pay US$495 per month as interim child support, that the Yuen Long Property be sold forthwith, that his share of the sale proceeds be used to pay off the outstanding mortgage, that the remaining funds be paid into a trust account held by the Wife’s lawyers from which withdrawn may be made to meet child support, that the parties shall return to court at a later date for further adjudication regarding the disposition of the remaining funds in the trust account, and that the Husband be restrained from disposing his jeep or to travel outside the U.S. without leave of the court (PB1 : 55 – 60). By then, as mentioned above, the Husband had already returned to Hong Kong and, as I understand it, had also sold the jeep, presumably before his departure.           

12.Upon his return to Hong Kong, the Husband initially started a company known as US Dakons Limited dealing in frozen meat presumably with the compensation obtained from his accident in the U.S., but the business turned out unsuccessful and the company was eventually folded in about 2007. Thereafter he was allegedly unable to hold down any full-time job, relying on his elder sister and doing odd jobs such as bringing computers or other electronic goods to China for sale and earning meagre income, until about 2009 when he claimed to have found a more regular job working in some garage as a repairman allegedly earning only HK$7,000 per month which he says were barely enough to support himself.   

13.Meanwhile the Wife was granted her divorce by the U.S. court on 5^th December 2005 together with an order for custody of the 3 children and for the Husband to pay her US$663 per month for child support (PB1 : 62 – 67).             

14.When neither of the said U.S. orders regarding the children’s maintenance or the sale of the Yuen Long Property had been complied with by the Husband, the Wife instituted these proceedings in Hong Kong on 30^th November 2006 by issuing the said originating summons against him for those reliefs mentioned above, followed later by an action for essentially the same claims under District Court Civil Action No. 1666 of 2009, for which she subsequently obtained judgment in default of defence in the sum of US$33,746.46 plus accrued interest of US$28,733.17 and costs (PB2 : 493).   

15.As noted above, what appeared to be a relatively straightforward parental disputes over what can only be described as a fairly limited amount of children’s maintenance, and the Wife’s interest in what was their former matrimonial home before their departure for the U.S. and which seemed wholly noncontroversial at least on the face of it as far as the legal title is concerned,  it is unfortunate that the proceedings had taken far too long to trial, due not just to the fact that it had to be scheduled at the convenience of the Wife to enable her to travel to Hong Kong after making proper arrangement for the children in the U.S., but also because the Husband, who appeared in person throughout, had raised the issue of custody after allegedly receiving e-mails and letters from the 2 elder daughters which he said had caused him great concern over the welfare of the children under the care of their mother, hence the inevitable involvement of the Social Welfare Department and their subsequent investigation into the matter.

16.Further delays were as noted above caused by the issue over the Husband’s mental capacity, coupled by the unfortunate fact that the hearing for closing submission had to be adjourned twice due to changes in instructions as to the various figures in the Wife’s claims for the children’s maintenance in her counsel’s submission resulting from the 2 daughters reaching the age limit under s. 12A of Guardianship of Minors Ordinance before the making of any maintenance order.            

17.It would also be relevant to note that, from her supportive affirmation of 22^nd November 2006 when the Wife issued her originating summons, it appears that the main purpose of her launching these proceedings in Hong Kong was to enforce the terms of those U.S. court orders, as she said on page 7 (PB1 : 25) :

“19. Despite repeated requests and demands, the Respondent has not strictly complied with maintenance order granted by the U.S. Court. My U.S. attorney had written to the Respondent requesting for settlement of outstanding maintenance but the Respondent did not reply at all.

20. As at 15^th Sep 2006, the Respondent owes to me an aggregate sum of US$7,546.60 being the maintenance in arrears for the children...

21. I have been advised by my legal advisors that the U.S. court order is unenforceable in the Hong Kong Court both at law and under statutes.

22. As the family assets includes but not limited to landed properties in Hong Kong namely Yuen Long Flats. I have no alternative but to seek relief regarding the children and Yuen Long Flats from this Honourable Court despite the grant of the U.S. court orders.”                      

18.Such purpose became more apparent when Ms Chan in her closing submission calculated the Wife’s claim for past children’s maintenance on the basis of the U.S. Court order initially at the monthly rate of US$495 and later increased to US$663 from 24^th October 2005, which brought the total amount for all 3 children to just over HK$638,000 after giving credit to the judgment sum of HK$262,547.46 obtained by her in her said civil action (Paragraphs 51 – 54 of Ms Chan’s revised closing submission)..     

19.It is however also obvious that by taking proceedings under GMO, the Wife can only seek financial provisions for the children but not for herself, and that the principles upon which the court is to decide on such application is mainly on reasonableness rather than those applicable to divorce as set out in the relevant section 7 of Matrimonial Proceedings and Property Ordinance, Cap.192, although the type or scope of the financial provisions sought are by and large similar in both situations.

20.Furthermore, while in her originating summon she sought as aforesaid monthly sums of HK$740, HK$1,460 and HK$2,440 respectively for the 3 children as well as a transfer of the said G/F of the Yuen Long Property to her for their benefit, in her final submission she has revised her claim for a lump sum initially calculated at more than HK$1.9 million to cover the past and future maintenance for the children, which sum was later revised down to about HK$1.6 million upon the 2 elder daughters having reached 18 in October of 2009 and 2010 respectively.  

21.Before I commence to consider the issues and the parties’ evidence in details, it would be relevant, and of assistance to the Husband who had appeared in person throughout the proceedings, that I first set out the law and principles applicable to this application.      

Applicable Principles

22.The relevant provisions under which the Wife’s application for custody and maintenance for the children is brought are set out in the relevant parts of section 10 of GMO as follows :

“(1) The court may, on the application of either of the parents of a minor … make such order regarding –

(a) the custody of the minor; and

(b) the right of access to the minor of either of his parents, as the court thinks fit having regard to the welfare of the minor and to the conduct and wishes of the parents.               

(2) The court may as regards a minor, on the application of a person with whom, whether by virtue of an order under subsection (1) or otherwise, custody of the minor lies at law, make in respect of the minor any one or more of the following orders –

(a)  an order requiring payment to the applicant by the parent or either of the parents of the minor of such lump sum (whether in one amount or by instalments) for the immediate and non-recurring needs of the minor or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the minor before the making of the order to be met, or for both, as the court thinks reasonable having regard to the means of that parent;

(b)   an order requiring payment to the applicant by such parent or either or such parents of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;

(c)  an order requiring the securing to the applicant by such parent or either of such parents, to the satisfaction of the court, of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;

(d)  an order requiring the transfer to the applicant for the benefit of the minor, or to the minor, by such parent or either of the parents, of such property, being property to which the parent is entitled (either in possession or reversion), as the court thinks reasonable having regard to the means of that parent;

(e)  an order requiring the settlement for the benefit of the minor, to the satisfaction of the court, of such property, being property to which such parent or either of such parents is so entitled, as the court thinks reasonable having regard to the means of that parent.

23.There are however provisions limiting the powers of the court to make such orders and their duration in section 12A as follows :

“(1) Subject to subsection (3), the term for which by virtue of an order specified in subsection (2) any payments are to be made or secured to or for the benefit of a child may begin with the date of the making of an application for the order in question or any later date but shall not extend beyond the date when the child will attain the age of 18.

(2) The orders specified for the purposes of subsection (1) are an order –

(a) under section 10(2)(a)….for payment of a lump sum by instalments;

(b) under section 10(2)(b) or (c)….for periodical payments or secured periodical payments.

(3) The court may include in an order referred to in subsection (1) in relation to a child who has not attained the age of 18 a provision extending beyond the date when the child will attain that age the term for which by virtue of the order any payments are to be made or secured to or for the benefit of that child, if it appears to the court that –

(a) that child is, or will be, or if such an order or provision were made would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also, or will also be, in gainful employment; or

 (b) there are special circumstances which justify the making of the order provisions.”            

24.It is clear from the above that while maintenance payment for a child may begin with the date of the application, and in this case it would mean dating back to 30th November 2006, the court can only make the order before the child attains the age of 18, a point conceded by Ms Chan for the Wife in respect of the 2 elder children who attained 18 respectively on 30th October 2009 and 16th October 2010 before the conclusion of the trial, and that the Wife can now only claim on their behalf under section 10 (2)(a) for a lump sum for the purpose of enabling any liabilities or expenses incurred in maintaining them before the making of the order, which explains the last-minute-revision to the calculations in her closing submission dated 12th March 2011.           

25.As also noted above, in determining this application, the only guidance given by section 10(2) is that the award shall be reasonable given the means of the paying parent. Nevertheless, to arrive at what is reasonable, the court will bear in mind all the relevant matters and circumstances drawn to its attention not just relating to the minor but also the parents as well, and no doubt the most outstanding matters in almost every case, as in this, are the reasonable needs of the minor which must necessarily be linked to the financial position of the applicant parent, and of course the financial position of the paying parent and his/her ability to pay. With all these in mind, I shall start with the children’s needs.

The Children’s  Needs

26.It is not in dispute that all 3 children have been on full-time education including the 2 elder daughters who are now over 18 but attending university, and while the Husband believes that both of them are working part-time jobs to finance their studies, there can be no question that all 3 children were wholly dependent on their parents at the time when these proceedings were instituted with their expenses then set out in the originating summons as well as the Wife’s said supportive affirmation (PB1 : 37 – 38).

27.The children were then at the age of 15, 14 and 8, and their monthly expenses were as noted above put at HK$748.80, HK$1,466.40 and HK$2,449.20 respectively, all of which appear fairly modest and were not challenged by the Husband at the trial. Some 7 months later on 25^th June 2007 when she filed her 1^st Form E, the Wife put the children’s respective monthly expenses at HK$1,271, HK$1,942 and HK$733 (PB1 : 231 – 233). While there seems to be quite a jump in the expenses of both daughters, those of the son had dropped substantially due to the fact that he no longer took extra tuition, which had in fact brought their total amount down by more than HK$700 per month. Again the Husband took no issue with any of these figures at the trial.

28.He does however, as noted above, take issue that the 2 elder daughters require maintenance from him to meet these expenses as he believes that they have been able to support themselves by working part-time jobs. He has produced a letter allegedly written and signed by his 2 daughters on 10^th September 2010 and exhibited to his affirmation of 7^th January 2011 as evidence of their working part-time, but given the sentiments expressed therein and the absence of any challenge to its authenticity, it would in my view be relevant to set out the main content in its entirety as follows :

“My sister and I would like to express our feelings about our stay in Hong Kong this summer. It has been 6 years since we last saw our father. During these years, we’ve missed him dearly. Since our parents’ relationship is on bad terms, it is impossible for us to visit our father in Hong Kong because our mother has total control of our passport and other travelling documents. Now that we are of age, we are able to renew our travelling documents. So this summer, my dad used most of his savings to pay for our plane tickets to visit him in Hong Kong. When we arrived, we’ve noticed that our father is in deep stage of depression. His depression has worsened since the last time we saw/talked to him. Through him we heard about the court cases between my mother and father. We do not understand how can two different cases be fought at once over the same property. We noticed that it has been hard for my father to fight two court cases at the same time along with his severe depression. We hope that the court will give him a fair chance to fight for his rights since this is the only property he has left. We are worried that he will have no home to stay at if he loses everything. We would like to let the court know that at the age of 14 after my dad was forced to leave America, we found part-time jobs to pay for our personal expenses. This time, because my mother cancelled her original plan to see me off to college since she found out that I am visiting my father this summer, my dad had to borrow money to pay for another plane ticket for my sister to move-in with me instead. We will be going back to America in a few days and we hope that we can reunite with our father in the near future where he is healthy and well. Lastly, we feel that we will not be the final benefactors if the house is sold since we would rather have a house in Hong Kong.”

29.It seems clear that this letter was written while the daughters were in Hong Kong visiting their father, with whom they were clearly supportive and sympathetic, and that some of the matters mentioned therein must have come from him unilaterally, but whatever differences they may appear to have with their mother, I do not think they have lied about their working part-time or earning their personal expenses.  

30.In fact, the Wife does not appear to have any serious dispute over such part-time jobs, as she admitted in paragraph 5 of her 2^nd affirmation of 25^th June 2007 (PB2 : 267) :

“ ... By encouraging my daughters who are respectively 15 and 14 to participate in some community part-time work like museum demonstrators, i believe that they would have gained some community work experience which could in effect enhance their future applications to college or university studies. I also added that all the money from the part-time work would be kept by my daughters as their pocket money.”

31.However, it is not clear what living expenses referred to by the daughters actually consist of : do they include all their expenses including accommodation and school fees, or as the Wife was referring to, just their pocket money? In the absence of any actual figures, it is not po0ssible to ascertain whether they have indeed become financially independent or self-supporting as argued by the Husband thereby rendering the Wife’s claim for their maintenance unnecessary or unjustified.  

32.Be that as it may, there is no question that the son has been totally dependent on his mother, and the Wife has put his future needs as a full-time student for more than 10 years to go based on his current rate at HK$1,517 per month and hence for him a lump sum of more than HK$210,000.

33.Is it however realistic, one must ask, for the Wife to project the son’s needs so far ahead into the years for university to be met by a lump sum now based on his current expenses? Or for that matter the same for the 2 elder daughters notwithstanding the restrictions as noted above under s. 12A of GMO. All these points may however be just academic if the Husband is indeed as he has claimed financially incapable of meeting their needs, but before considering his means, I propose to look into the Wife’s first.

The Wife’s Financial Circumstances

34.In 2006 when these proceedings were commenced, the Wife was working as a merchandising manageress in an electronic company in San Francisco earning a bi-weekly net salary of US$842, hence US$1,684 or the equivalence of about HK$13,000 per month. At that time she claimed to have a monthly expenses of US$2,928 or HK$22,838 for herself and the 3 children, the breakdown of which were set out in her said supportive affirmation of 30^th November 2006, basically HK$14,700 for general household expenses, HK$3,400 for her personal expenses, and HK$4,600 for the children’s, but due to the shortfall of her income and lack of financial support from the Husband, she claimed to have to resort to borrowing from a friend in the aggregate amount of US$7,000 up to that time, as there were no more savings in her bank accounts or any other assets in their family in the US

35.By April 2007 however, the Wife was laid off by her employer and has since been a full-time mother on government welfare benefits of about US$1,800 per month after relying on friends’ borrowing of US$12,000 for a while. Her evidence at the trial was that she has since not returned to work because she found it necessary to stay home to look after the younger children in particularly the son who was then only 8, but if that was indeed the reason, it is not clear why then she could afford to work full time in the past when the children were obviously much younger, which brings me to the Husband’s claim that she may not have fully or frankly disclosed all her assets especially the cash which he said the family had brought to the U.S. when they emigrated there and their subsequent whereabouts.

36.It is the Husband’s case that the Wife used to have a security account dealing in shares in Hong Kong before emigrating to the U.S., the statements of which he said he had seen showed some HK$1 – 2 million in equities, and that she had also brought substantial savings to the U.S., but none of which had been disclosed in her Financial Statement (Form E).

37.The Wife of course denies that she has not made full and frank disclosure of her means, and insists that whatever capital or assets she had brought to the U.S., they were nowhere near the amount alleged by the Husband, and that whatever they were, they had long since been exhausted maintaining her family after the Husband ceased his financial support for her and the children.    

38.To deal with that issue it would be necessary to go into more details of the parties’ background and financial dealings during better days of their marriage in particularly before their emigration to the U.S., which can be found in the Wife’s said 1^st Affirmation (PB1 :  19 – 41) and summarised as follows :

(a)    during the marriage until 1996 the parties carried on a trading business in electronic parts under the name of Smart (Hong Kong) Company(“Smart Hong Kong”);

(b)  between 1990 and 1996 the parties also operated a business known as Smart Satellite Technology Ltd. (“SST”) in which they were directors and equal share holders where the Husband would supply and install satellite discs for customers while the Wife would man the shop premises;

(c)    in 1990 they purchased a shop premises at Peninsular Centre, Mody Road, Kowloon in their joint names with the Husband’s parents and used it to run both businesses;

(d)  in 1993 the Husband purchased a flat at Ka Wai Chuen, Kowloon under the Home Ownership Scheme in joint names with his father in exchange of his father’s public housing unit;

(e)   later in the same year the parties purchased another property, a house in Palm Spring, Yuen Long, New Territories for their home;

(f)    they sold the Palm Spring property the following year for a profit and used the proceeds to purchase the said Yuen Long Property in August 1994 for HK$1,790,000 as their matrimonial home with the assistance of a bank mortgage of HK$895,000;

(g)   but by 1996 as neither business was making any money, the parties sold the said shop premises for a net sum of about HK$1,640,000 which were all kept by the Husband upon his agreement to use the money to maintain the family and to pay for all its expenses;

(h) in 1997 the parties were considering emigrating to the US, and it was agreed that the Wife should go first to San Francisco  where she found a job as a saleslady, while the Husband would take steps to wind down their business and affairs in Hong Kong while their emigration application was being processed;

(i)     in 1999 the Husband’s father passed away, and in 2000 the Ka Wai Chuen property was sold and the Wife claimed that the Husband had pocketed the proceeds;

(j)      In 2000 their application was approved and the Husband  subsequently joined the Wife and the children in San Francisco in November of that year after the parties had put HK$200,000 in their joint account with Bank of China to meet the monthly mortgage payments of their Yuen Long Property.   

39.None of these evidence were challenged by the Husband either in any of his affirmations or at the trial, and while it is not clear what had since happened to whatever capital and/or assets they might have brought to the U.S., it would not be unreasonable to assume that substantial amounts must have been spent on setting up their home and life in San Francisco, and whatever was left by way of savings must have since been depleted after what the family had gone through over the years including the Husband’s traffic accident and the subsequent breakdown of the marriage which eventually caused the Wife and the children to rely on social welfare.

40.In the premises and in the absence of any more concrete evidence other than the Husband’s bare allegation, I am not persuaded that the Wife may have concealed any cash or securities as suspected by the Husband. She does of course have her interest in 1/F and roof of the said Yuen Long Property waiting to be capitalised. As noted above she put its worth at HK$600,000 in her Form E being one-half of her estimation of the whole house. This is however much lower than the Husband’s estimation of HK$4.8 million for the house and hence HK$2.4 million for her floor.

41.Without any formal valuation report it is not possible to ascertain which estimation is more accurate, but given the fact that property consists of a usable roof and garden and was bought by the parties for HK$1,790,000 in the 90s, I am more inclined to accept the Husband’s estimation as more accurate in the prevailing market situation. In other words, the Wife has an asset in Hong Kong worth more than HK$2 million at her disposal. I shall next turn to consider the Husband’s financial circumstances where similar suspicion of hidden means has been raised by the Wife.

The Husband’s Financial Circumstances

42.The Husband is now in his late 40s and, as noted above he claims that he now works in a garage as a vehicle repairman earning only about HK$7,000 per month which he says just about enough to meet his living expenses according to his Form E. The Wife however does not accept that that is all he could do or earn for a living, and calls into question his true earning capacity, as after all, he used to run successful businesses in the 90s before their emigration to the U.S., and another business as recently as in 2005 upon his return to Hong Kong, albeit not successful but it still goes to show his ability to engage in various business rather than just working as a garage repairman.

43.In fact, Ms Chan for the Wife argues in her closing submission that with his “very good commercial experience in various trades, good commercial sense, articulate language skill, presentable outlook and fluency in English ... able to handle this litigation logically with attention to details and carried out the cross-examination in a methodological manner”, the Husband’s alleged mental conditions were merely a tactic for delaying the Wife’s application, and that he should be able to find a much better job without too much difficulty, hence his present job as a vehicle repairman was just an attempt to obstruct or frustrate the Wife’s application.

44.While there can be no dispute to his past trade and business activities in particularly those prior to his emigration,  it is also a fact that he  had only worked as a truck driver in the U.S. and had had a serious accident that put him out of work for more than 2 years, and while it is not clear what if any impact his injuries might have on his earning capacity, he certainly did not appear to me, at least in court, to be someone with articulate language skill or presentable outlook as submitted by counsel.

45.In fact, quite to the contrary, the Husband in most if not all of the hearings, and there had been quite a number of them over the past 5 years,  almost always appeared just the opposite, and was in my view much more accurately described by his doctor Dr. Gloria Chow of Castle Peak Hospital in her report dated 22^nd October 2010 and exhibited to his affirmation of 7^th January 2011, when she wrote as follows :

“1. ... he became mentally ill in 2003 after a series of life events. He was a victim in a car accident in 2001 and sustained fracture left elbow followed by failed business and financial hardship. He was later divorced by his wife. His parents deceased already due to physical illnesses. He ranks the last amongst eight siblings. The only supportive carer is his elder sister who has seldom contact with him. One of his nephews has suspected history of psychosis with details unknown.

He was an anxious prone person. Although he had lots of friends before the onset of mood problem, he has inadequate stress coping skills. He has poor social support...

3. He was diagnosed to have Recurrent Depressive Disorder, Moderate Depressive Episode. He was prescribed with antidepressant and hypnotic when necessary. His mental state fluctuated, and was improved while his daughter was in Hong Kong. However, he was facing stress of litigation with his wife, which would perpetuate his mental illness. He was last seen on 27 Aug 2010. He mentioned that his wife cancelled all financial support once she got the knowledge of her daughter would come to Hong Kong to visit patient. He had labile mood and with unexplainable over sweating and dry mouth, crying spells. Community psychiatric nurse has difficulty to contact him. He reported he managed his work. He was still anxious but sleeps better. He takes medications regularly ... “

46.Dr. Chow then concluded in paragraph 4 of her report that the Husband “suffers from Recurrent Depressive Disorder, currently Moderate Depressive Episode. He needs intensive treatment and follow-up. Due to the great impact in life and he lacks social support in Hong Kong, his mental illness would have a guarded prognosis. The rehabilitation of his mood disorder would likely be highly dependent on the social support from his family, especially his children. The resolution of other psychosocial problems, such as financial matters, would also be important for the remission of his mental illness”.

47.      There was no challenge by the Wife as to the contents of this report, nor was Dr. Chow called at the trial, and while some of the dates of events referred to in the background history of the report may not be entirely correct and were obviously provided by the Husband during his assessment by Dr. Chow, the report clearly painted a much different picture about him than that submitted by Ms Chan, and one that accords much more closely with my observation of him in court.

48.It also seems clear from the report that the Husband’s mental conditions were caused by various important events both in the U.S. and Hong Kong and exacerbated by these proceedings, and while it was the Husband himself who for whatever reason chose to leave his children behind in the U.S. to return to Hong Kong, given his apparent close relationship with them, in particularly the eldest daughter, the impact of being kept apart from them thousands of miles away for the past several years on him should not be underestimated either, and which were all there to be seen in court on quite a few occasions when he appeared particularly emotional, weepy and sobbing distressingly whenever his children were mentioned.

49.These conditions of his were in fact also supported by 2 other medical reports produced by him, with an earlier one dated 31^st May 2006 (PB1 : 210) stating that he was already suffering from stress and depression at the time of his divorce in the U.S., while the later one confirmed that such conditions were still manifesting up to January 2008 (PB2 : 326), as well as the Social Investigation Report dated 8^th November 2008 in which he was observed to be depressed, tearful and forgetful and was referred by the investigating officer for psychological service (PB2 : 306).

50.Be that as it may, Ms Chan may be correct in arguing that such depressive disorder should end once this litigation is over, in which case if he is not to work as a garage repairman as argued by Ms Chan for the Wife that it is well below his true earning capacity, the question must then be : What sort of job and income would he then be expected to be able to obtain?

51.Certainly Ms Chan had throughout the proceedings complained about unsatisfactory financial disclosure by the Husband, such as incomplete bank statements or the lack of tax returns or MPF records,  but since there was never any serious dispute over the closure of his frozen meat business due to cash flow problem, in the absence of any evidence as to substantial capital being available, any chance that he may be able to start any business again is in my view simply too remote, and similarly in the absence of any evidence of any special skills or qualifications that he may possess, it is equally unrealistic in my judgment to expect him to find employment outside the labour market.

52.Whatever doubts Ms Chan may have casted over the Husband’s evidence such as his different version as to the amount of his alleged debts due to his sister, or of his purchasing air tickets for the daughters to fly to Hong Kong last summer and paying for their mobile phone charges, at the end of the day they should not distract from the reality that the Husband has limited earnings or earning capacity for the reasons already referred to above.       

53.He is of course not entirely without any asset, as he still has G/F of the said Yuen Long Property, which is what the Wife in effect has been after in these proceedings. As noted above, he put it in his latest Form E at HK$4.8 million for the entire house, hence HK$2.4 million for his G/F and garden, which is 4 times higher than the Wife’s estimation, and which in some way goes to rebut her suspicion that he has understated his means. As I understand it, she has obtained a charging order against that property for more than HK$260,000 being the judgment sum under her said civil action.

54.He also claims to owe his sister HK$480,000 being the mortgage payments in respect of the said property she has made on his behalf during his years of financial difficulty. There is no other evidence of such debt has been produced, nor has his sister filed any affirmation to corroborate his other than an earlier civil action in the District Court not dissimilar to the Wife’s and also charged against the said property, but given the state of his financial circumstances over the past several years, it is entirely possible that financial assistance may have been provided by the sister.        

Conclusion

55.It is established as a general rule and principle that in deciding maintenance order, the court should ignore the fact that the applicant is receiving welfare support or benefits for the children, as is the Wife in this case  : Barnes v Barnes [1972] 3 All ER 872, [1972] 1 WLR 1381, CA; Peacock v Peacock [1984] 1 All ER 1069, [1984] 1 WLR 532.

56.This is true even if the maintenance order will have the effect of pro tanto abatement of the applicant’s welfare benefits so that the result of an order of the court in the applicant’s favour is likely to be that she will not ultimately gain thereby is irrelevant to the question of the amount which the respondent should be ordered to pay by way of maintenance : Peacock v Peacock [1984] 1 All ER 1069, [1984] 1 WLR 532; Foot v Foot [1987] FCR 62. However, while the fact that the Wife in this case will not be required to reimburse the U.S. government of any payment under a court order which she may be able to obtain from the Husband in these proceedings, as confirmed by her solicitors’ said letter of 17^th January 2012, should not in my judgment be a reason not to make the order against the Husband, it would be relevant if it may cause hardship to him or put him in difficulty, in particularly when it comes to decide on her claim against his property.

57.I do agree that after his return to Hong Kong and from 2005 to 2007 when he was running a business, the Husband should have had the means to contribute towards the maintenance of his 3 children, albeit not necessarily at the monthly rate required by the Wife or ordered by the U.S. court, but not so after the collapse of the business and the onset of his mental conditions as I have found above. However and despite my such findings, as confirmed by her solicitors‘ said letter the Wife has since obtained against him summary judgment in her other civil action in the total sum of HK$262,547.46 being his maintenance for the children in arrears under the U.S. order from 1^st November 2005 to 1^st March 2009, which as noted above has already been charged against his interest in G/F of the said Yuen Long Property.

58.This is however clearly double counting against the Husband at least as far as the Wife’s similar claim herein for past children’s maintenance is concerned, coupled with the facts that the 2 daughters have been subsidizing their living expenses with part-time jobs and their apparent stance over their own needs, and that the Wife has an asset in 1/F and Roof of the Yuen Long Property which she does not need for her accommodation and hence can be sold to fetch her more than HK$2 million to meet the children’s needs, and given the Husband’s current mental conditions, his limited means and his needs for a roof over his head, I am unable to say that it would be fair or proper to order him out of his home so that it be sold or secured to meet essentially just the future needs of the son, for which the Husband has made what I would consider a reasonable proposal under the circumstances to let out the garden of the said property to pay HK$2,000 per month towards the maintenance of the son.

59.In the premises and for the reasons aforesaid I refuse all the Wife’s claims against the Husband’s interests in G/F and garden of the said Yuen Long Property, but order that he shall pay her HK$2,000 per month as maintenance for the son commencing 1^st March 2012 and thereafter on the 1^st day of each month until he reaches the age of 18 or completes full-time education whichever the later, or until further order.

60.I shall next hear the parties on the Wife’s claim for costs of her application.                                     

Ms Dora Chan instructed by M/S Tang, Lai & Leung for the Applicant.

The Respondent appeared in person.