Y v. H

FCMC 12101 /2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 12101 OF 2013

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DECISION
(Maintenance pending suit: wife and child)

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1.This is an application of the petitioner (“wife”) by way of her summons filed on 13 November 2013 for maintenance pending suit (“MPS”) for herself and the only child of the family, a baby boy of 1 year old.

2.The initial sum sought by the wife in her MPS summons is $54,000 per month, which is revised down to $38,480 per month in her subsequent affirmation[1] and further down to $28,480 in the oral submission made by her solicitors during the hearing.

3.The respondent (“husband”) opposes to this application and proposes in his affirmation[2] that he would arrange for the wife and the child to live in his grandparents’ village house in Yuen Long free of rent; continue to pay for the costs of the maid; and on top of these, pay the wife $5,000 per month for the interim maintenance of the child. Yet, in his solicitors’ oral submission made in the hearing, it seems that he has scaled down his proposal to $5,000 per month only.

4.The wife has not sought any litigation funding from the husband in this MPS application, as she is now legally aided.

Brief Background

5.The wife was born in Tianjian, China in July 1981 and is now 32 years old. She was educated up to university level and became a news editor in Tianjian. She is now a full-time housewife taking care of the child of the family.  

6.The husband was born in June 1977 and is now 36 years old. His parents emigrated to Australia from Hong Kong many years ago and thus he was born in Australia. He was educated to university level and is a qualified architect. He claims that he has been unemployed since November 2013.

7.The couple first met in 2005 in Tianjian and got married in Australia in July 2006.  They stayed together for a brief period in Australia before they parted with each other from time to time due to work arrangement: the husband working in England and Dubai; the wife returning to Tianjian to be a news editor.

8.In 2007, the husband came to work in Hong Kong as an architect in the field of urban design. It is the husband’s allegation that the wife refused to settle down in Hong Kong despite a visa for her to stay in Hong Kong was obtained. Nevertheless, when she subsequently became pregnant in mid-2012, she came to stay in Hong Kong. The husband rented a flat in Ma On Shan and hired a maid for her. Their baby son was born on 28 March 2013 in Hong Kong.

9.The wife claims that in or about July 2013, the husband admitted to her that he had extra-marital affairs with another woman and moved out from the Ma On Shan flat in or about August 2013. The husband rejects this allegation of extra-marital affairs.

10.On 23 August 2013, the wife filed her petition for divorce on the alternate facts of adultery and 1-year separation since 15 August 2012. The husband has filed a Form 4 to acknowledge that he consents to a divorce on the fact of 1-year separation. However, up to now, decree nisi has not been granted.

11.From November 2013, the husband stopped paying any maintenance for the wife and the child on the alleged ground that he has become unemployed. Since then, there have been several arguments/conflicts leading to police intervention; the more serious one involved the wife’s allegation of threat/intimidation administered by the husband on/about 2 November 2013, as a result of which he was arrested by the police on 20 December 2013 and released on bail. No charge has been laid against him so far, though.

Interim interim MPS, interim access and adjourned MPS

12.The wife’s MPS summons first came before me on 9 December 2013. Usual directions were given on filing of affidavits. The summons was set down for argument on 21 March 2014. 

13.In the same hearing, the wife also raised her concern that as the husband had already stopped paying any maintenance for herself and the child and refused to renew the tenancy of the Ma On Shan flat, she would soon be evicted therefrom by the landlord. As a result, an interim interim MPS order for the wife and the child was made by me as follows:

(1) A sum of $18,000 to be paid forthwith;

(2) A sum of $10,000 per month from 9 December 2013 and thereafter on the 9^th day of each month until further order of this court.

14.I also directed that a social welfare investigation report (“SWD report”) on access be prepared and that interim access was to be arranged and supervised by the social welfare officer.

15.It is, however, unfortunate that parties have allowed their acrimony to extend to the front of the interim access, as a result of which the social welfare officer had to report to this court by way of a memo dated 13 March 2014 seeking my urgent directions on interim access arrangement way forward so that the SWD report can be prepared in good time for the next hearing of 30 May 2014.

16.An urgent direction hearing on interim access arrangement was thus fixed by me to be heard on the same day but immediately before the MPS argument hearing. Yet, unnecessary time was spent because the solicitors acting for the wife has failed to take instructions from her on the memo of the social welfare officer before this hearing. As a result, a brief adjournment had to be given for the benefit of the wife.

17.In the end, the MPS argument could not be commenced until almost lunch time. But further hiccup was caused because the wife purported to adduce her 6^th affirmation at this 11^th hour of the hearing to disclose 2 PRC bank accounts. It is very fair of the husband’s solicitors not to object to this belated application of the wife.

18.When the MPS argument resumed after lunch, it became clear that despite the obvious changes in the wife’s living arrangement and thus her monthly expenses since the last direction hearing on her MPS summons (9 December 2013), her solicitors has not taken any timely and appropriate application for further affidavit to be prepared in order to update this court with the wife’s current position. As a result, the MPS hearing had to be adjourned to 1 April 2014 for the wife to prepare an affidavit on her updated monthly expenses and for the husband to give his affidavit in reply.

19.Before turning to the applicable legal principles, I cannot help commenting at this stage that the wife’s preparation for her MPS application leaves much room for improvement. There remains no need for me to remind those acting for the wife, who is legally-aided, that they also owe a duty to the Director of Legal Aid that time and costs would not be unnecessarily incurred or wasted.

Applicable Legal Principles

20.The power for this court to make a maintenance pending suit for a spouse and interim maintenance order for the children of the family is set out in sections 3 and 5 of the Matrimonial Proceedings and Property Ordinance (“MPPO”) respectively.

21.The relevant legal principles are succinctly set out by Hartmann JA (as he then was) in HJFG v KCY [2012] 1HKLRD 95, where his lordship quoted Nicholas Mostyn QC sitting then as a deputy High Court judge in TL v ML and Others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263,  as follows:

“33. Jurisdiction to award maintenance pending suit to a spouse is statutory, being governed by the provisions of s.3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. By that section the court is given a discretion to make an order requiring either party to the marriage to make to the other such periodical payments for his or her ‘maintenance’ as the court thinks ‘reasonable’, subject to the condition that the duration of any such order is limited to the period of what may broadly be called the divorce litigation.

34. By definition, therefore, maintenance pending suit is restricted to payments which constitute ‘maintenance’, which are reasonable in the circumstances and which will endure for no longer than it takes to determine the divorce litigation. ‘Maintenance’ is a broad concept. I do not seek to define its exact meaning but it seems to me that it must be restricted to those payments necessary to meet the recurring costs of living at whatever standard of living is appropriate. That being the case, no matter how great the wealth of the parties and how unevenly distributed that wealth may be at the time an application for interim maintenance is made, the court has no jurisdiction to make orders which for all practical purposes result in a form of pre-trial capital re-balancing. In the present case, the judge recognised the long-established approach of looking to the “immediate and reasonable needs” of the wife and son.

35. As to the amount of maintenance pending suit that may be paid, the Ordinance provides only that it must be ‘reasonable’, that is, having regard to the circumstances of the case, that it must be fair.

36. An important factor in determining fairness is a consideration of the marital standard of living. In this regard, each case must be considered according to its own circumstances. It is not simply to be assumed that great wealth equates to great extravagance. Some married couples who enjoy great wealth spend with comparative modesty and with a discipline born of discretion, others enjoy consumption on a grand scale.

37. The principles that have emerged over time to guide judges in matters of interim maintenance have been fashioned in the main to ensure fairness. This is well illustrated in the judgment of Nicholas Mostyn QC, sitting then as a deputy High Court judge, in TL v ML and Others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263, at 1289, in which, having looked at earlier authorities, he derived the following principles that speak specifically to fairness or are based on the need to ensure it. For present purposes, it is sufficient to cite the relevant principles without citing the judge’s reference to the source of those principles:

i. The sole criterion to be applied in determining the application is ‘reasonableness’, whichis synonymous with ‘fairness’.

ii. A very important factor in determining fairness is the marital standard of living. This is not to say that the exercise is merely to replicate that standard.

iii. In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long-term expenditure, more aptly to be considered on a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration.

iv. Where the affidavit or form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources. In such a situation, the court should err in favour of the payee.

38. Finally, it is to be noted that in applications for interim maintenance, when the amount to be paid is for a limited period only and not all of the evidence is necessarily before the court, it is not appropriate, nor indeed in most cases possible, for the court to conduct a detailed investigation into the finances of the parties.  While, in order to determine what is or is not reasonable, some analysis is always required, that analysis can be conducted on a ‘broad brush’ basis.”

33.Put simply, the court needs to balance the reasonable needs of the applicant spouse (and the children where applicable) against the paying spouse’s ability to pay using a broad brush approach (Rayden & Jackson: Divource and Family Matters (18^th ed) at para 16.18).

The wife’s case

34.The wife has filed her 3^rd to 7^th affirmations in support of her MPS application. She claims that the husband used to pay the following for her and the child:

(1) $20,000 per month as regular monthly maintenance;

(2) $17,000 per month for the rental (Ma On Shan flat);

(3) An additional of $10,000 per month from time to time for the child.

35.She claims that after she was evicted from the Ma On Shan flat, she and the child have moved to a rented flat in Yuen Long at much lower rental of $8,000 per month. She has also dispensed with the service of the maid hired by the husband. Her current monthly expenses are thus revised from $48,120 in her Form E to $38,480 in her 7^th affirmation.

36.She avers that the husband, despite his allegation of being unemployed now, has the earning capacity to continue to work as an architect. Further, she argues that the husband has not made full and frank disclosure of his bank statements in that up to now, his HSBC bank statement for August 2013 has not been disclosed. From what can be gleaned from his bank records, he has withdrawn a total sum of $1,789,099.52 from his HSBC bank account within 2.5 months between September and November 2013. The husband, in her case, has the financial ability to support her and the child during this interim period up to the final resolution of the ancillary relief matters.

The husband’s case

37.The husband has filed his 1^st to 3^rd affirmations in opposition to the MPS application.

38.He alleges that during their marriage, the wife overspent by using supplementary credit card(s) given by him to her and withdrawing substantial money from their joint bank accounts. The total sum spent or withdrawn by her since March 2006 up to October 2013 amounted to some $2,127,000.[3] This sum of about $2,127,000 included a sum of $300,000 given by the husband to the wife in/about 2008 for purchase of a property in Tianjian, which he alleges that she still owns but fails to disclose to the court in this application.  She has also failed to disclose at least 3 PRC bank accounts. In gist, he says that she has the means to support herself and the child.

39.Further, he complains that the current monthly expenses claimed by the wife are excessive. The reasonable expenses for her and the child, he says, should be $16,500 per month only, of which he can only pay $5,000 per month in this interim period because he has been unemployed since November 2013 up to now. He has to rely on borrowings from friends.

Standard of living

40.It is not disputed by the husband that before he moved out from Ma On Shan flat in August 2013, he was paying at least $20,000 per month to the wife and the child. On top of that, he settled the rent of Ma On Shan flat ($17,000) and the credit card spending of the wife (at least up to February 2013).

41.It cannot be challenged that the Ma On Shan flat is about 1,000 sq feet and that the wife and the child enjoyed the service of a maid. It is not denied by the husband that the parties travelled quite often during their marriage to places like Australia, Dubai and other asian countries.[4]

42.Upon considering the Form Es and supporting affidavits filed by the parties for this MPS application, I take the view that this family enjoyed a good but not luxurious living standard during their marriage.

Needs of the wife and the child

43.In her 7^th affirmation, the wife states that her current monthly expenses are $38,480, being $19,800 for general expenses; $14,450 for personal expenses; and $4,230 for child expenses.

44.The husband avers that the said monthly expenses are exaggerated and excessive. A more reasonable sum, he says, should be $16,500, being $12,000 for general expenses; $2,000 for personal expenses; and $2,500 for child expenses.

General expenses

45.I note the husband’s concern that the wife has not produced a copy of the new tenancy agreement in any of her affirmation. However, the stamp duty certificate has been exhibited showing necessary details of the new tenancy, eg full address, term, monthly rent. I am prepared to give full weight to this stamp certificate. It needs to be pointed out that the husband’s current rental for himself alone is $22,000 per month. I cannot see why the current rent payable by the wife ($8,000 per month) should not be accepted.

46.The husband complains about the wife’s claim for utilities ($2,800), food ($8,000) and household expenses ($1,000) and argues that the same should be scaled down to $500, $3,000 and $500 respectively. However, considering the good living standard that the couple enjoyed during their marriage, against the backdrop of the husband’s monthly income of $92,000 immediately before his unemployment, I cannot agree to the husband’s proposition, in particularly when he claims that he alone spends $2,500 on utilities (excluding rates which are paid by his landlord[5]) and $1,000 on household expenses per month. On a broad brush assessment, I take the view that $3,500 is a reasonable sum for utilities and household expenses for this interim period.

47.The expenses on food claimed by the wife, on the other hand, seem a bit overstated, as the maid is no longer staying with her. However, the child is now 1 year old and should start consuming some solid baby food. For the purpose of interim arrangement, I am of the view that a sum of $5,000 per month on food is reasonable.

Personal expenses

48.At a glance, it is easy to find out that the wife should not have put down the interim interim maintenance ($10,000 per month) as an item of personal expenses in her table of updated monthly expenses. Her correct personal expenses should thus be $4,450 ($14,450 - $10,000).

49.The husband takes issues on each and every item of the wife’s personal expenses. He says that he should not be made to pay for the contribution to her parents ($500), to which I agree.

50.He also argues that the monthly expenses for transport should be $500 instead of $1,200, and the total sum of all the remaining items should not be more than $1,500. Given the good standard of living enjoyed by the parties during their marriage, I find it difficult to agree with the husband that the wife’s personal expenses, currently stood at $3,950 (if contribution to her parents in the sum of $500 is deducted), is unreasonably excessive, in particularly when the husband himself states that he spends $6,000 on meals out (while the wife claims only $300); $4,060 on his car and another $1,500 on transport (while the wife claims only $1,200); $1,000 on medical (while the wife claims only $300).

51.For this interim period, I am prepared to allow $3,950 per month as the wife’s personal expenses.

Child expenses  

52.The wife claims that the child needs to attend play group which costs $1,880 per month, to which Mr Chan for the husband submits that the expenses were absolutely unnecessary due to the very tender age of the child. On the evidence before me, the parties are both professionals educated up to university level. I have little doubt that they both place great weight on the education of the child. The husband says in his Form E that he wants the child to receive education in Australia; the wife plans to send the child to an international school. Sending the child to playgroup at this age does not seem to me to be contrary to the living standard of the family during marriage and certainly is rather common nowadays among middle-class families. With the child’s best interest always on my mind, I would rather accept the wife’s case at this interim stage, in the full knowledge that any over payment can be re-adjusted or rectified at the final ancillary relief hearing, but otherwise may cause unnecessary hardship or difficulties to the wife in making provision or arrangement for the child if the amount turns out to be too low.

53.I am, however, not persuaded by the wife that a 1-year old baby would need expenses for lunch and pocket money ($200). She has not explained what other extra-circular activity ($250) that the child is participating apart from the playgroup, nor has she produced any receipt for the same. I am not prepared to allow these 2 items.

54.On the other hand, I notice that the wife has not included in her updated child expenses table the spending on diapers or milk powder. I will take the husband’s suggestion of $2,500 per month to cover diapers, milk powder and medical expenses of the child.

55.Adopting a broad brush approach, I conclude that for the interim period, the child expenses are $5,000 per month.

Summary of expenses

56.Due to the matters aforesaid, I set out below the expenses assessed and allowed by me for the purpose of this MPS application:

(1) General expenses (including rent)	$16,500
(2) Personal expenses	$3,950
(3) Child expenses	$5,000
Total:	$25,450

The wife’s financial resources

57.In her Form E dated 4 November 2013, the wife claims that she has no other assets except about $4,000 kept in 3 bank accounts held jointly with the husband. She also claims that she has a beneficial interest in an Australian property and the sale proceeds of a Hongkong property (in Hunghom), both of which is/was held in the sole name of the husband. Her only income is the monthly payment of $20,000 made by the husband to her, but that was stopped arbitrarily by the husband since November 2013.  

58.The husband, however, avers that the wife has sufficient asset to cater for her and the child’s interim needs, because she had income working as a news editor in Tianjian until pregnancy. He accuses her of withdrawing substantial money from their joint accounts in the HSBC over 6 years in the total sum of about $1.46 million between November 2007 and October 2013.[6] He further alleges that the wife owns a flat in Tianjian (denied by the wife), which was purchased in/about 2008, for which he had transferred RMB$300,000 to her as downpayment. Last but not the least, he is adamant in saying that she has failed to make full and frank disclosure of her PRC bank accounts (2 with China Merchant Bank; 1 with Bank of Communications).

59.The parties have a dispute as to facts on whether the wife owns any Tianjian property. Since the court can only consider affidavit evidence without hearing oral evidence in a MPS hearing, it is not appropriate for me to proceed at this interim stage on the husband’s presumed basis that the wife owns such property. That, in my view, should only be left for the determination of the trial judge of final ancillary relief matters. 

60.The wife has not expressly denied in her 4^th affirmation in reply about the allegation of withdrawing substantial money from their joint HSBC account over years. Yet, it is not the husband’s case in this MPS application that she has dissipated the money so withdrawn. Rather, his allegation focuses on her overspending, which, in my opinion, is more relevant to the final ancillary relief proceedings.

61.As to the 3 PRC accounts, it is a different story. First of all, it is noted that in her Form E, the wife discloses that she has bank accounts in Hong Kong only. The husband first raised the existence of these 3 PRC accounts in his 1^st affirmation (dated 4 December 2013) supported by related remittance slips or email record, to which the wife gave the following response in her 4^th affirmation:[7]

“I am willing to produce the 3 bank account’s statements set out in paragraph 15 of his affirmation if the bank account numbers are correct.”

62.She does not expressly deny that she does/did not have any PRC bank accounts at the material times.

63.However, when asked for disclosure of these bank accounts, the wife denies in her answer to the husband’s questionnaire (dated 5 March 2014) that she owns any bank account outside Hong Kong in the last 24 months.[8] Yet, the wife in her 6^th affirmation (filed only during this this MPS hearing) changes to say and discloses her PRC accounts with entries up to March 2014 including:[9]

(1) A certificate of personal bank assets of China Merchant Bank from 31 January 2012 to 31 March 2014, with a credit balance of RMB$64.97 (“CMB account records”);

(2) A retail customer transaction details of Bank of Communication from 13 March 2012 to 13 March 2014, with a credit balance of RMB$28.15 (“BC account records”).

64.No explanation has been offered by the wife in any of her affirmations as to why there is such a change of stance on her PRC bank accounts.

65.Although the CMB account records do not, on the face of it, shows any bank account number that resembles the account number in the remittance slips exhibited in the husband’s 1^st affirmation, I am prepared to accept, despite the submission made by the husband’s solicitors, what is stated in the 1^st para of the CMB account records, ie the records “include deposits, treasury bonds, CMB investment, third party entrusted investment…” Prima facie, the wife has disclosed, though belatedly, her last 24 month’s bank records with China Merchant Bank.  

66.The bank account number of the BC records, however, does not tally with the bank account number stated in the email record produced by the husband at all.  The wife has, for unknown reason, failed to explain in her 6^th affirmation on such difference. Mr Tse, her solicitors, attempts to offer an explanation on the difference in the hearing. But it is quite clear that he is not supposed to give evidence from counsel’s table. In the end, he concedes that the wife has not made full disclosure of her bank account(s) with the Bank of Communication.  

67.As such, I am entitled to take a robust view and to draw adverse inferences against her that she has the means to support herself.   

The husband’s earning capacity and ability to pay

68.The main area of dispute here concerns (i) the husband’s unemployment and (ii) the withdrawal of over $1.78 million from his HSBC premier account since the petition.

69.To begin with, it is pertinent to point out that the wife took out her MPS summons on 13 November 2013, but about 7 days later on 20 November 2013, the husband resigned from his job and has become unemployed since then. His unemployment, he claims, is partly caused by the wife. He describes the circumstances leading to his resignation as follows:[10]

“7. I am an Architect specialised in Urban Design. As deposed above, I worked in Hong Kong since late 2007 in a company called [A Company]. In 2010, I changed to another company namely {B Company}. In September 2013, I returned to [A Company]. The salary was $92,000 per month. However, the [wife] had caused nuisance interference and disturbance to me. For instance, she denied me to go into our residence and I needed to stay at my friend’s home overnight, she denied my access to my work clothing and working tools, she threatened to come up to my office to embarrass me. All these has caused great emotional distress to me and I was unable to concentrate on my work. My working performance was seriously affected. By that time, I was still under the 3-month[’s] probation period. As a result, on 19 November 2013, my employer gave me a warning letter and verbally asked me to resign, otherwise I would be sacked. In order to avoid a record of being terminated, I tendered my resignation reluctantly on 20 November 2013 and I had [sic] been unemployed since then.”

70.He maintains that he is, and will be, unable to find a similar job in the near future mainly for 3 reasons:

(1) there is a non-competition clause in his employment contract with A Company in that he is not allowed to “take up employment of similar nature within 3 months from the date if the termination of the employment”;

(2) there is a very limited market for urban design architects in Hong Kong. There are only 6 firms which have a department of large-scale town planning. The husband had worked for 2 out of the 6 in the past; the remaining 4 seldom recruit new staff;

(3) the husband is suffering from depression and insomnia because of this divorce litigation and the arrest by the police on 20 December 2013 as a result of the wife’s allegation of criminal intimidation committed by him.

71.In the hearing, Mr Chan, solicitors acting for the husband, has fairly conceded that on the evidence before this court, the husband has “good earning capacity”, but argues that his earning capacity cannot be generated into income at this stage due to the 3 factors set out in the preceding paragraph.

72.I am not persuaded by this argument of Mr Chan. The non-competition clause[11] restricts the husband to work in a company who has businesses, or in direct/indirect competition with A Company; it certainly does not forbid him from working in other architectural firms of other nature. Further, the clause covers 3 months from the date of the termination, which means the restriction has already expired by 19 February 2014. Besides, there is no medical evidence produced by the husband to substantiate (i) his alleged depression, and (ii) the alleged depression has caused his inability to work on any temporary or permanent basis. All the husband has produced at this stage are 2 medical receipts, both issued in March 2014, showing that he has insomnia only. His case is thus not advanced any further by these medical receipts. The attempted reliance on the description of the social welfare officer in the social welfare investigation report that the husband has been and is under great emotional distress is a non-pointer, since the social welfare officer does not possess the requisite expertise to give any medical opinion on his work ability.    

73.Mr Chan also submits in this hearing that the husband has done his best to try to find a job but in vain. Nevertheless, the affidavit evidence shows that, so far, he has written only 1 letter (dated 1 February 2014) and registered with jobDB.com (on unknown date) in an attempt to find a job. That is clearly not sufficient to discharge his evidential proof that he has utilised his earning capacity.

74.In conclusion and for the purpose of this MPS application, I take the view that with his academic background, professional expertise and work experience, the husband does possess high earning capacity to earn an income during this interim period to fully support the child. 

75.I shall now turn to the husband’s withdrawal from his HSBC premier account.

76.It is not disputed that the Hunghom property was purchased in the husband’s sole name in 2009 in the sum of $3.39 million and was sold in February 2013 for $5.5 million. Upon deduction of the outstanding mortgage ($3,369,390), a net profit (about $2,130,610) was paid into his HSBC premier account. The wife points out, and it has to be accepted by the husband, that he has withdrawn a total of $1,789,099.52 from this HSBC premier account since the date of the petition as follows:

(1) A sum of $770,140.01 withdrawn on 2 September 2013 (7 days after the date of the petition);

(2) A further sum of $1,018,959.51 withdrawn on 23 November 2013 (10 days after the MPS summons).

77.The husband offers his explanation in his 1^st affirmation like this. The Hunghom property was a joint investment of him, his aunt and his mother.[12] After it was sold, a sum of $1,122,775, being her aunt’s contribution to the property, was repaid to her; another sum of $450,000, being his contribution to the deposit ($200,000) and renovation expenses ($250,000) was paid to the husband. The balance of about $557,835 was shared between him and his aunt in the ratio of 2:8 (ie $111,567 to the husband; $446,268 to his aunt).

78.The ownership of the Hunghom property and thus the alleged repayment to the husband’s aunt, is another area of dispute between the parties, the determination of which should be left for the trial judge of the final ancillary relief matters. However, this does not mean that the sale proceeds of the Hunghom property should be totally carved out from my consideration when assessing the husband’s financial means to pay MPS. It is because even in his own case, the husband received a total of about $561,567 ($450,000 + $111,567) upon the sale of the Hunghom property. Mr Chan for the husband submits that most of this sum has been spent by the husband between February and September 2013 in settling his credit card payments; in purchasing a private car from Volkswagen Hong Kong Ltd ($104,000) and a Rolex watch ($170,000). However, this submission is in direct contradiction to what the husband alleges in his 1^st affirmation. In the 1^st affirmation, he says that,

“this sum has largely been withdrawn by the [wife] for her own use in the past months.”[13]

79.Given the above marked divergence, the husband’s explanation on this sum of $561,567 is not accepted by me at this stage.   

80.Further, according to his own Form E, the husband alleges that he borrowed from his friends, namely Mr C in the sum of $80,000 on 3 September 2013,[14] and Mr L in the sum of $100,000 on 1 October 2013.[15] He also obtained a revolving loan from the HSBC of at least $367,500.  He has failed to disclose or explain the whereabouts of these loans.

81.The overall picture is thus like this. As at 1 October 2013, the husband has at least the financial means of $1,109,067 ($561,567 + $180,000 + $367,500) available to him, not to mention his monthly income of $92,000 which, according to him, stopped only with effect from 20 November 2013 on his resignation. Of note is that he has not paid any maintenance for the wife and child in November 2013, and was only ordered to pay interim interim MPS in the sum of $18,000 initially and thereafter at 10,000 from December 2013.

82.It also goes without saying that the said loans from the friends and the bank help to show that the husband has the ability to borrow in order to support the child.

83.All in all, I conclude that for the purpose of this MPS application, the husband has the earning capacity and financial means to pay for any interim maintenance that is going to be ordered by me pending final resolution of the ancillary relief proceedings.

Conclusion

84.Due to the matters aforesaid, the interim maintenance required for the child is $13,250 ($16,500/2 + $5,000), which I shall round up to $13,300 per month. This is the amount I shall order the husband to pay to the wife for the interim maintenance of the child. 

85.For matters set out in paras 57 to 67, I refuse to make any MPS order for the benefit of the wife.

86.Since both parties have not fully disclosed their financial resources to this court and that neither party’s proposal is accepted by me, I take the view that costs of this application should be reserved and be in the cause.

87.I shall thus make the following order:

(1) the husband (respondent) shall pay to the wife (petitioner) for the interim maintenance for the child of the family in the sum of $13,300 per month from 9 April 2014 and thereafter on the 9^th day of each and every succeeding calendar month until further order of the court;

(2) the interim interim MPS order made on 9 December 2013 be discharged with effect from 9 April 2014;

(3) There be a cost order nisi that costs of and occasional by this application be reserved and be determined at the final ancillary relief proceedings, which will be made absolute within 14 days from the date of this decision unless either party applies to vary the same;

(4) The wife’s (petitioner) own costs be taxed in accordance with Legal Aid Regulations.

88.I shall also direct that a copy of this decision be sent to the Director of Legal Aid for their records.

Mr K H Tse of Tse & Associates (on assignment of DLA) for the petitioner (wife)

Mr E Chan of Messrs K L Chan & Co for the respondent (husband)

[1] See the wife’s 7^th affirmation

[2] See the husband’s 1^st affirmation [197]-[198]

[3] See the husband’s schedule of credit card spending and bank withdrawal by the wife [275-276]

[4] See the wife’s Form E [23]

[5] See tenancy agreement clause 2 (b) of Schedule II [234]

[6] See table prepared by the husband attached to his 1^st affirmation [275]-[276]  

[7] See [341]

[8] See Question 5 at [434]-[435]

[9] See [413]-[414]

[10] See the husband’s 1^st affirmation [192] – [193]

[11] See employment contract on non-competition [180]

[12] See [194]

[13] See para 10 at [194]

[14] See loan document on [104]

[15] See loan document on [105]