Ccmj v. Ssm Formerly Known As Skl
Read the full judgment text of FCMP 67/2010 on BabelCite. This FCMP judgment was delivered on 5 June 2015.
1. This is the Respondent Mother’s Summons dated 25 October 2013 seeking maintenance provisions for the child “N” born out of their relationship. At the conclusion of this trial, the child N was about 6 ½ years old whose custody, care and control had been granted by this Court to the Respondent Mother after a 16-day trial back in 2012. Suffice to say for the past 3 years there was protracted litigation between the parties in respect of N. At the moment, there is pending the Father’s Summons for
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FCMP 67 /2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010 ----------------------------
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------------------------- JUDGMENT ------------------------- Introduction 1.This is the Respondent Mother’s Summons dated 25 October 2013 seeking maintenance provisions for the child “N” born out of their relationship. At the conclusion of this trial, the child N was about 6 ½ years old whose custody, care and control had been granted by this Court to the Respondent Mother after a 16-day trial back in 2012. Suffice to say for the past 3 years there was protracted litigation between the parties in respect of N. At the moment, there is pending the Father’s Summons for variation of N’s custody, care and control . Background 2. Both parties are Hong Kong citizens. The Father now aged 55 and the Mother aged 30. They came to know each other in 2005 and started cohabitation around 2 years later in 2007. In early 2008, the Mother found herself pregnant and she gave birth to N in November 2008. 3.Throughout the period of cohabitation, they lived at the Father’s parents’ residence in Kowloon Tong, which is a 4-storeys townhouse type of dwelling of about 4,800 sq ft in size (“Kowloon Tong property”). The Father had been living there rent free since 2001, that is to say, long before the cohabitation started. The other family members living there are the Father’s parents, elder brother, elder sister-in-law and 2 domestic helpers. The Kowloon Tong property was owned by a ‘family owned’ company by the name SLAFF Limited with the parents, the Father and his siblings as shareholders. On 28 April 2011, the Father and each of the siblings executed a Declaration of Trust (at pages 646 to 651 of the Trial Bundle) in respect of their respective shareholdings declaring the shares were held on trust for their elderly father. 4.Prior to the cohabitation, the Mother lived with her parents in a Government’s home ownership scheme property in Tseung Kwan O area (“TKO property”) with the Mother’s elder brother as the sole owner. The gross area is about 800 sq ft which is a 3-bedroom dwelling. The Mother’s parents, the Mother, N and a domestic helper, altogether 5 persons are living there. 5.Following an argument around May 2009 over change of milk powder when N was about 6 months old, the parties’ relationship broke down. The Mother and N left the Kowloon Tong property and went to live at her maiden family in the TKO property whereas the Father continued to stay in the Kowloon Tong property. Back in November 2007, the Father himself bought a newly built property by the name One Silver Sea in Tai Kok Tsui area (“One Silver Sea”) at a consideration of HK$6.90 million. He made a down payment of HK$3.90 million with the balance of HK$3.0 million on mortgage with the Bank of China. The monthly repayment at present is about HK$15,000 with the remaining term of 156 instalments (that is, 13 years) and the outstanding mortgage is about HK$2 million. 6.It is the Father’s evidence that he moved and resided in the One Silver Sea property last year around May 2014. It is also the Father’s evidence that the One Silver Sea property was purchased for his financial security and all along intended to be his ultimate home after his parents pass away. He had renovated the One Silver Sea property by pulling down one partition wall to change it from a 3-bedroom unit to a 2-bedroom unit which he described as a ‘bachelor’s flat’. Since the One Silver Sea property was purchased, he continued to reside in the Kowloon Tong property. The reason given in his Affirmation for not moving to his own property is only because he had to assist in the care of his elderly parents for his brother who always work in Mainland China. It can be seen from the 1st Affirmation of the Father in these proceedings filed back in the year 2010 up until his 24th Affirmation filed on 3 March 2014 opposing the Mother’s present claim, the Kowloon Tong property was used as his residential address in all his Affirmations. It only started from his 25th Affirmation filed herein on 27 June 2014 (which was filed in support of other application), he changed his residential address to the One Silver Sea property. The statutory provision 7.Section 10 (2) of the Guardianship of Minors Ordinance, Cap. 13 (“GMO”) provides :-
The relevant case law and applicable principles 8.There has once been controversy as to the interpretation of the statutory provision of Section 10(2)(a) as to whether it provides the court with jurisdiction to make lump sum orders for the purchase of housing and whether such provision of housing falls within the ambit of ‘immediate and non-recurring needs’ under the statutory wordings of Section 10(2)(a) of the GMO. 9.The Court of Appeal in the case of IDC v. SSA [2014] 4 HKLRD 220 (Date of Judgment : 6/6/2014), after reviewing the legislative history of our Section 10(2) with cross reference to the relevant English statutes and some other case law, disagreed with the decision of Her Honour Judge Chu (as she then was) in the case of H v. S (Financial Provision or a Child of Unmarried Parents) [2012] HKFLR 236 and concluded that Section 10(2)(a) does not confine to a one off lump sum application (see paragraph 21 of the CA’s Judgment). The Court of Appeal agreed with the trial Judge’s finding in IDC v. SSA that the housing need of a child is a recurring need. The attempt to have such recurring need satisfied by a property already owned by a parent would not change the nature of the need to become a non-recurrent one. The purchase of a property to cater for such need for the time being cannot satisfy such need once and for all (see paragraph 26 of the CA’s Judgment). 10.The Court of Appeal, having considered the Judgment of Singer J in the case of Phillips v. Peace [2005] 2 FLR 1212, went further and decided that a lump sum order under Section 10(2)(a) is not appropriate if the intention is to reserve a reversionary interest to the paying party (see paragraph 27 of the CA’s Judgment). Having said, the Court of Appeal however ruled that Section 10(2)(e) does provide the Court with jurisdiction to order a sum of money for the purchase of property to cater for the housing need to be the subject matter of the settlement for the benefit of the child in question. At paragraphs 31 to 36 of the CA’s Judgment, Hon Lam VP said :-
11.The learned trial Judge Bruno Chan in IDC v. SSA (supra), whilst holding Section 10(2)(e) could not be extended to “putative property”, where the appellate court now held that a sum of money to purchase “putative property” could be the subject of a settlement, took the view that Section 10(2)(e) refers to settlement of a property to which the parent is so entitled (i.e. a property already (my emphasis) owned and which can be properly identified). This view was not taken on appeal and I fully agree with the learned trial Judge’s view. This stands to be the correct interpretation of the law. Putting together the appellate court’s decision on the interpretation of Section 10(2)(e), the court’s jurisdiction thus could either be ordering a sum of money to be settled on trust for the purchase of property to cater the child’s housing need with reversion to the payer parent or, in appropriate cases, simply to order settlement of a property already (my emphasis) owned by that parent, either in possession or reversion, for the child’s accommodation if it is fair and reasonable, having regard to the means of that parent. 12.When concluding Section 10(2)(a) of the GMO confines to a one off application (such view has now been disapproved by the Court of Appeal in IDC v. SSA (supra) ) in the case of H v. S (Financial Provision for a Child of Unmarried Parents) [2012] HKFLR 236, Her Honour Judge Chu (as she then was) had analysed and compared the major differences between the provisions in Hong Kong under the GMO and those set out in Section 15 and Schedule 1 of the English Children Act 1989. The learned Judge concluded the factors under Paragraph 4(1) of Schedule 1 of the English legislation do not exist in the Hong Kong GMO. 13.For the English legislation, Paragraph 4(1) of Schedule 1 sets out the criteria which the court has the duty to have regard to when making financial orders for children as follows :-
14.Deputy High Court Judge Chu (as she then was) in the later case of WGL v. ASB (HCMP No.489 of 2013) at paragraph 54 of the Judgment said :-
15.In the English case of Re P (Child : Financial Provision) [2003] 2 FLR 865 which is the leading case where the Court of Appeal in England undertook a review of the principles underlying Schedule 1 of the Children Act 1989. At paragraphs 76 and 77 of the Judgment, Bodey J said :-
16.Our Hong Kong Court of Appeal in IDC v. SSA (supra), whilst disagreed with Judge Chu (as she then was) on the interpretation of Section 10(2)(a) of the GMO, had not disturbed Judge Chu’s (as she then was) views in both H v. S (Financial Provision for a Child of Unmarried Parents) and WGL v. ASB (supra) as to the approach which the court needs to adopt when considering financial orders for child of unmarried parents. 17.At paragraph 57 of the Judgment in WGL v. ASB (supra), Deputy High Court Judge Chu (as she then was) said :-
18.With the authoritative decision of our Court of Appeal in IDC v. SSA (supra) of which I am bound to follow, and the guidance of Bodey J in Re P (supra), I now proceed to consider the facts of the present case and the Mother’s application. I intend to do so by going through each of the items listed in the Mother’s Open Proposals and the Father’s Open Proposals in reply. In so doing, I have also reminded myself the appropriate approach to be taken set out in the above cases of H v. S and WGL v. ASB (supra) and the statutory wordings “….as the court thinks reasonable having regard to the means of that parent” in Section 10 (2) of the GMO. The Mother’s Application 19.The Mother is now seeking various financial provisions for N from the Father which, as set out in her Open Proposals, contains the following :-
20.The Mother filed her 7th Affidavit in support of the application and her 9th Affidavit in reply to the Father’s 24th Affirmation in opposition. The Father’s Objection 21.In the 41-page 24th Affirmation, the Father grouped his objections under separate headings followed by his revised proposals in relation to the maintenance for N claimed by the Mother. The sub-headings are :-
22.The Father obtained leave from this Court to file his Mother (Madam Wong)’s Affirmation dated 8 June 2014 without calling his mother as a witness to testify at this trial for cross examination for health reasons. Besides, the Father also issued a subpoena to a bank officer of the Bank of China (also known as Madam Wong) to testify at the last day of trial in respect of a sum of HK$32 million once kept in the Father’s bank account which he held on trust for his elderly mother. Standard of living before separation 23.The parties started their cohabitation in the Kowloon Tong property around late 2007 or early 2008. N was born in November 2008 and lived there until her parents separated in May 2009. Ever since the cohabitation, the Mother was not working. She worked as a clerk for her father’s business prior to the cohabitation. 24.There are 2 domestic helpers and a driver employed by the Father’s family in the Kowloon Tong property, which is a 4-storeys townhouse type dwelling of about 4,800 sq ft. For a more descriptive condition of the Kowloon Tong property, the Father in his 1st Affirmation filed at the commencement of these proceedings when he sought for N’s custody, care and control, at paragraph 150 (at pages 82 to 83 of the Trial Bundle) said :-
25.During pregnancy, the Mother was allowed to use the Father’s car, by that time was an Audi A3, with all expenses paid by the Father for transportation. After N was born, the Father bought a brand new SUV, which is an Audi Q5, for taking N and the Mother around. N was taken care of by the Mother full time. N was also enjoying tonic food on a regular basis for her health. As a matter of fact, during the entire period of cohabitation, all the expenses of N and the Mother were borne by the Father. 26.The Father is a member of the Hong Kong Jockey Club (“HKJC”) and the Kowloon Cricket Club (“KCC”). At present, the HKJC monthly membership fees are HK$2,000. The KCC monthly subscription fees are HK$1,300. N was able to enjoy the clubhouse facilities suitable for her age. 27.The living standard at the time, as I see it, is quite high compared with most of the middle class families in Hong Kong. Standard of living after separation 28.After separation, the Mother and N started to live in the maiden family residence in Tseung Kwan O area, which is a home ownership scheme property solely owned by the Mother’s brother. The gross area is around 800 sq ft, which is about one-sixths (1/6) of the size of the Kowloon Tong property. The Mother continues to look after N as a full time mother. There is 1 domestic helper employed by the Mother’s father (i.e. the maternal grandfather) who helped in doing the household chores as the Mother’s parents have to work daily in their canteen business. 29.It is obvious, so far as the usable size of the living places for N is concerned and not to consider any parks or spaces nearby in the vicinity, the Kowloon Tong property is 6 times larger than the TKO property which N is currently living. 30.In so far as N’s maintenance is concerned, the Mother in her 7th Affidavit filed on 25 October 2013 at paragraphs 4 to 12 (at pages 123 to 126 of the Pleadings Bundle) set out the difficulty she encountered with the Father over the years on N’s maintenance after separation :-
31.The parties’ respective Form Es were only filed in January/February 2014. 32.It is the Mother’s case that due to insufficient maintenance from the Father since separation in May 2009, she has incurred debts from her father and her father’s canteen business, loans from credit cards altogether running up to around HK$753,000 as at early January 2014 (at page 12 of her Form E). The Father’s background, means, resources and liabilities 33.The Father graduated from University of Birmingham in 1983 with Bachelor of Science in electronic and electrical engineering. He was granted a Master Degree in Business Administration by the University of Aston in Birmingham in 1985. 34.The Father worked for different companies holding posts of General Manager and Senior Vice President with monthly salary income ranging from HK$59,000 in 1990 to HK$150,000 in 2000. 35.In 2008, the Father joined a Hong Kong listed company as Director of Business Development for a monthly salary of HK$100,000. Around October 2010, he arranged with his employer to work on a ‘part-time’ basis at a reduced salary of HK$70,000. The reason provided by the Father for such arrangement was that he wanted to have more time with N. During the years of employment with the current employer, he had received discretionary bonus of HK$1.30 million for the year 1/4/2012 to 31/3/2013, HK$200,000 for the year from 1/4/2009 to 31/3/2010. He thus averaged out the bonus income to be HK$20,833 per month over his 6 years employment with the current employer. The fixed monthly salary plus the average bonus thus come to around HK$90,833 (HK$70,000 + HK$20,833) a month. 36.The Father in his Form E filed in February 2014 deposed to have total assets in the region around HK22.7 million (exclusive of the HK$32 million held on trust for his mother). The value of his total assets comes from 2 landed properties (1 property in One Silver Sea in Hong Kong under his sole name, 1 property in Beijing PRC jointly owned with a friend through a Hong Kong incorporated company “MB Limited”), cash value in banks worth around HK$4.9 million, values in stocks worth around HK$4.8 million, a Audi Q5 car worth around HK$180,000, and other valuable items of 2 Rolex watches, 2 IWC Schaffhausen, 1 Official Panerai, Leica camera and lenses, Canon camera and lenses (total value worth around HK$285,000), MPF valued around HK$167,834. For his 50% interest in the MB Limited holding the Beijing property, he estimated his interest worth around HK$8,324.50 excluding the value of the Beijing property. In the Annexure to his Form E, he valued the Beijing property worth around HK$9.21 million using an exchange rate of RMB 1 to HK$1.01 only. He is also holding 20% shareholding in SLAFF Limited on trust for his father, which company holds the Kowloon Tong property. 37.The Father’s reported liabilities in his Form E include (a) Club membership fees with HKJC at $2,000 and (b) Legal fees to Haldanes at HK$150,230. There is a credit balance of HK$40,903.06 in his Visa Card account with the Bank of China. Thus, the reported net liabilities is HK$111,326.94 (i.e. HK$2,000 + HK$150,230 – HK$40,903.06 = HK$111,326.94). It is noted the liability owed to HKJC is the regular monthly membership fees and the other liability to Haldanes is part of the legal costs incurred for these proceedings. 38.The Father, without obtaining leave in advance and before resumption of the part-heard trial in March this year, filed his 27th Affirmation on 13 January 2015 to update his latest position, as to his financial and his health, since he filed his Form E in February 2014. His net assets worth had dropped from HK$22.7 million to HK$20.7 million, a reduction of HK$2.0 million odd within 11 months since his Form E was filed due to expenditure on legal costs, counsel’s fees and disbursements and various other reasons. Besides, there are legal costs around HK$449,735 remain outstanding as of 9 January 2014. In anticipation of the legal costs for this trial and his ongoing variation of custody application, he anticipated his net assets worth would be dropped by at least another 4 million. 39.In his 27th Affirmation, he deposed there are further additional liabilities which include having to share his father’s medical expenses of approximately HK$118,800 per month with his siblings. His share (1/6th) is around HK$19,800 per month. Since May 2014, he started to live in his One Silver Sea property and there are additional monthly expenses for utilities. He has to spend HK$500,000 to purchase Individual Nomination Right of ESF school for N’s admission later this year and by then, N’s school fees would be doubled by what he is now paying for N. He also needs to reserve funds for N’s future education in private schools and tuition, physical health care and mental health care, including possible overseas medical treatment for N’s leg problems. Further, he anticipated that there will be additional expenses of approximately HK$4,000 per month for counselling N’s anxiety issues recommended by Dr. Anita Leung earlier in these proceedings. 40.In his 27th Affirmation, he also deposed that although he had been working part time since 2010, the workload and responsibility are exactly the same as a full time position and are ever increasing with the fast growth of his employer’s business. The pressure and responsibility demanded from his work are too high for him to cope with at his present age. His employer had been in negotiation with him several times as to when would be the appropriate time for him to leave the company. He was expected by his current employer to complete three very difficult and important projects on hand under the supervision of a new executive director before the termination of his employment. The Father expected that it is likely that he would be losing his current job in about 5 to 7 months after he completed those projects. 41.In addition to the increased expenses, he deposed there are also treatment costs of himself. He had been receiving treatment since May 2012 for major depressive disorder, anxiety and insomnia. He had spent HK$45,612 on treatment costs over his depression between May 2014 and January 2015. Since he would be terminated by his current employer in the foreseeable future whereupon losing his health insurance, he needs to pay approximately HK$40,000 annually for health insurance coverage. Besides, he claimed the major cause of his psychiatric condition is stress from work, ceasing to work would undoubtedly be beneficially to his health. Given the fact that his employer had indicated that he would be phased out in the near future and coupled with his health condition, it is opportune time for him to retire from working life. By then he would have to rely on his savings, stocks and landed properties to support his and N’s expenses. He expected it is unlikely for him to find other employment in future. The Mother’s background, means, resources and liabilities 42.The Mother received local education up to secondary level. Before she came to know the Father, she worked as a clerk for his father’s canteen business at a salary of HK$10,000 a month. Through her times of work, she came to know the Father around 2005 and started the courtship leading to cohabitation 2 years later. 43.The Mother ceased working after cohabitation with the Father in 2007. She became a full time mother after N was born in November 2008. After the separation in May 2009, she stayed unemployed with no income and continued as a full time mother looking after N. Around May 2013, she had a chance to join as a member of Nu Skin as end user for purchase of some vitamins and cod oil for N’s consumption. She found the products of Nu Skin effective and then started to introduce them to friends and relatives. In so doing, she could earn irregular income whenever friends and relatives purchased Nu Skin products through her membership. These incomes were highly irregular depending upon the quantity and value of products bought from Nu Skin. The Mother does not reckon such income as any fixed or regular part time employed work since there were no fixed or designated working hours or any sales target. At paragraph 38 of her 9th Affidavit, she deposed the income so earned from Nu Skin as follows :-
44.Over the years since separation, the Father had not adequately maintained N financially. This resulted in her having to obtain loans from her father, her father’s canteen business, her maiden family’s assistance and also have to resort to loans from credit cards to pay for her own and N’s expenses. 45.The Mother in her Form E filed in January 2014 deposed to have the following assets and liabilities :-
Analysis and Discussion (a) Accommodation needs of N 46.The Father in his Open Proposals at the beginning of the trial in June last year offered a sum not exceeding HK$5 million (including stamp duty and set up costs) to purchase a property under his name for the Mother and N’s residence with reversion to him upon N’s majority. This proposal was, however, completely withdrawn by the Father at the resumed hearing in March this year without any alternative proposals. There is even no proposal for rental payments. It was suggested by the Father that N could continue living at the Mother’s maiden home in Tseung Kwan O. 47.The One Silver Sea property is a private dwelling in Kowloon area worth about 13 million at the time of this trial. This property is about 1,000 sq ft purchased by the Father in 2007 as the sole owner and the current mortgage repayments around HK$15,000 a month. The Father deposed at paragraph 10.25 of his 24th Affirmation (in opposition to the Mother’s present claim) that this property was purchased for his financial security and intended to be his ultimate home after his parents pass away. The Father continued to reside in the Kowloon Tong property after he bought the One Silver Sea property was only because he had to assist in the care of his elderly parents for his brother who always work in Mainland China. 48.The Father’s latest Open Proposals for the accommodation needs of N, as I see it, is far from reasonable. Reason being that N’s accommodation needs had not been catered for at all when the Father completely withdrawn his earlier proposals of settling a sum of HK$5 million to purchase a property. First of all, the Father has had his Summons seeking variation of N’s custody, care and control to be given to him running in parallel (my emphasis) to the Mother’s present claim for N’s financial provisions, including N’s accommodation. In the event that the Father’s Summons for variation is successful, N would then either be staying with the Father at his own property which is the One Silver Sea property or the Kowloon Tong property. Given the fact that the Father had deposed the One Silver Sea property is now his residence in his 25th Affirmation (contents of this 25th Affirmation unrelated to the present claim) filed in June 2014 and in his subsequent 27th Affirmation in January 2015, it is more probably than not that N would be residing with the Father at the One Silver Sea property, or in the Kowloon Tong property as the Father may so choose, if the Father is successful in his Summons. 49.Leaving aside whether the One Silver Sea property had been renovated or rebuilt into a bachelor’s flat or otherwise, in terms of usable space, value and location, it is obvious that there is significant disparity between the One Silver Sea property (a 13-million worth private dwelling solely owned by the Father) and the Mother’s maiden home at Tseung Kwan O (a home ownership scheme property not even owned by the Mother, but is owned by the Mother’s elder brother). Given the fact that N’s accommodation needs are the same irrespective of who is her ultimate primary carer, I find there is no reason why N should be residing in the Mother’s elder brother’s residence when the Mother is having her custody, care and control but to reside in a 13-million worth of residence (that is, the One Silver Sea property) in the event that the Father has her custody, care and control, not to say the possibility of living in the even more luxurious Kowloon Tong property. 50.The Father, whilst completely withdrawing his Open Proposals of providing 5 million to be settled on trust to purchase a property to cater N’s living needs, provided no proposals whatsoever towards the living costs of N, whether by way of rental payments for renting alternative accommodation or in the form of any monetary contribution. The Mother in her Form E had stated that there are mortgage instalments over the TKO property which was paid by her elder brother but N is also living there. Why should the maternal uncle (i.e. the Mother’s elder brother) have to bear N’s living costs? On the other hand, when it comes to calculate N’s expenses (whether on reimbursement of expenses incurred for 62 months since separation or further periodical payments) other than living costs, the Father made his best efforts through his Counsel to go into meticulous calculation such as working out the percentage of access time which he is currently enjoying with N (which is around 46%) and invited the Court to take this into account as part of his financial liabilities. 51.In my Judgment, N is entitled to be brought up in circumstances which bear some sort of relationship with the Father’s current resources and the Father’s present standard of living (see J v. C, supra). The Father’s suggestion of N to continue to live in TKO property on a ‘no costs basis’, in my view, is in affront to any sense of justice or fairness or any jurisprudence which I am aware of. This is not a case of maintaining the status quo of N’s living environment. Quite contrary, on the facts before me, this is a proper case where such status quo of living should give way to the best interests of N. Apparently, the present status quo of N’s living was brought about by the parties’ separation 5 years ago (when N was only 6 months old not even attending nursery at that time) and forced upon N without any consideration of her best interests. With the fast growing needs of N and her primary education needs, this is high time for the Court to look into N’s best interests in all perspective if this was not too late. Also with the fast physical growth of a child at her age, it is my decision that it is not in her best interests to continue to live in an accommodation of 800 sq ft with 4 other adults (including the Mother) whereas it happens that her Father claimed to be living alone in a HK$13 million worth of dwelling. 52.I have considered the option of ordering a sum of money to be settled by the Father to purchase a property for N’s accommodation with reversion to the Father, notwithstanding the Father had withdrawn such option in his latest Open Proposals. Such option, however, seems to create problems rather than provide solutions. However, I believe the Father who had the benefit of legal advice would have already considered the potential problems when he proffered the HK$5 million cash be settled in his earlier Open Proposals. 53.With the rapid and sharp increase in prices in the Hong Kong property market lately, it is practically difficult if not impossible to fix the appropriate level of money needed to acquire a suitable accommodation for N. Since whatever property to be acquired would be purchased under the Father’s name and settled for N’s use with reversion to the Father, there are the secondary stamp duty (so called “SSD”) issue which may be payable because the Father had already owned his first property, namely, the One Silver Sea. Such SSD, if this have to be paid, would no doubt eat up part of the moneys set aside resulting in reduction of the moneys available for the purchase. Further, it is unlikely that the Father would be willing to arrange finance by mortgage because of his alleged anticipated lost of job or early retirement. In the event of purchasing a property by full payment without raising any mortgage, say for instance, using the Father’s initial proposal of HK$5 million, it might result in an even worse scenario than the Father paying off the remainder of the existing mortgage of the One Silver Sea property, which is just around HK$2 million outstanding, a difference of putting up HK$3 million cash less in money terms. Even if the Father is agreeable to arrange mortgage for the new purchase, this would end up with the Father having to pay, in addition to the existing One Silver Sea property mortgage, another ‘newly created’ mortgage for the next 10 or 15 years on the property to be purchased. 54.Since the Father had completely withdrawn his earlier proposals of settling a sum of not exceeding HK$5 million without proposing any monetary sum to purchase (or even to rent) alternative accommodation to cater for N’s accommodation needs, coupled with this Court’s finding that it is not in N’s best interests to continue to live in the TKO property, and the potential problems aforesaid, the only option then open for consideration by the Court on N’s accommodation needs would be the One Silver Sea property. 55.Pausing here, the Court would have to look into the 2 questions which the Father’s Counsel Mr. Jeremy Chan fairly submitted, namely, (a) how could the Father’s residence, namely, the One Silver Sea property be transferred when there is an outstanding mortgage? and (b) the financial means and resources of the Father to accede to the Mother’s Open Proposals. 56.Counsel submitted that since the One Silver Sea property is on mortgage, it is not feasible or legally possible for any transfer of ownership unless the mortgage is fully paid off. The outstanding mortgage at present is around HK$2 million. Moreover, the One Silver Sea property is the Father’s only property and place of residence. Counsel then submitted that he had not heard of any cases where the owner (i.e. Father) should be evicted from the use and occupation of his own and only place of residence. It was submitted that the Father could not afford to settle any sum of money for the purchase of any other accommodation, not to mention the sum of 13 million proposed by the Mother for N’s accommodation costs and over half a million dollars for decoration costs to pull down and ‘re-do’ the One Silver Sea property. 57.I have some observations over the Father’s evidence about his current place of residence is the One Silver Sea property. 58.First of all, I do not believe the Father is now using the One Silver Sea property as his place of residence as he so alleged. Had I been wrong on this finding, to the very least, the One Silver Sea property is not the only place where the Father could live in as his residence. In his 24th Affirmation filed in March 2014 whilst he was still using the Kowloon Tong property address as his residential address in the affirmation, the Father gave the reason for staying in the Kowloon Tong property is because of having to assist in the care of his parents. In his evidence given during cross examination at the resumed trial on 15 January 2015, he gave the reason for moving out of the Kowloon Tong property to the One Silver Sea property was because there had been discussions ongoing for few years within the family about selling the Kowloon Tong property in order to help in settling his elder brother’s business debts incurred in Mainland China (中山三鄉鎮). Such discussion had continued for years and went on in 2014. At the same time, his elderly father’s health condition had deteriorated a lot. The elderly father now had difficulty in walking. The elder brother suggested the entire family should move to live in some other properties with lift because the Kowloon Tong property is a kind of 4-storeys townhouse with stairs. His mother Madam Wong strongly objected to the idea of selling the Kowloon Tong property. According to the Father’s evidence, there was conflict within the family on such issue which had intensified recently. He just felt embarrassed to continue living there as he does not want himself to be, using his own words, a ‘parasite (寄生蟲)’ to continue living in the Kowloon Tong property. Also he did not want his elder brother to wrongly think his continuous stay in the Kowloon Tong property hindered the idea of selling the Kowloon Tong property to settle the business debts. He also did not want to be involved within the family conflict. Therefore, he decided that it would be better for him to move out from the Kowloon Tong property. The Father said he could only move to his own property at the One Silver Sea. 59.I find the Father’s evidence, on balance, not believable. There is no evidence either from his elder brother or parents to support his reasons to have to move out from the Kowloon Tong property. In the absence of such evidence, his reasons proffered are no more than his bare allegations or mere assertions. He was cross examined by the Mother’s Counsel Mr. Kevin Li whether he knows the amount of his elder brother’s debts. The answer provided was that he did not know since this is his elder brother’s affairs. I find this odd and unusual for the Father not even able to tell the debt was how much, say, for instance hundreds of thousands or several millions since he alleged the idea of selling property to settle debts had been thrown out by the elder brother quite a while and had been ongoing. 60.Under cross examination, the Father agreed with the Mother’s Counsel that his reasons of there had been on-going family conflicts and his hope to avoid such family conflicts himself had not been mentioned by him anywhere in any of his earlier Affirmations; in particular, such ‘family conflicts’ had been ongoing for a few years already. The Father also agreed with the Mother’s Counsel that even at present, it is a matter of his choice to stay few nights in the One Silver Sea property and other few nights at the Kowloon Tong property. The Father, seemingly noticed a loophole in his answers, tried to supplement his answer by saying that in any event after his parents pass away in future, he would certainly need a place to live in because the Kowloon Tong property is not his place of residence. This last supplemented answer will only happen many years later. 61.The Father had all along been represented by reputable legal firms with extensive matrimonial practice and experienced Counsel, the absence of the ‘family conflicts’ reasons for the moving out in any of his affirmations handled by his lawyers renders his reasons given at trial unbelievable. I do not believe what the Father said. 62.As the Mother’s Counsel rightly put to the Father, he chose to move out at the time when the elderly father’s health had deteriorated but the earlier reason given for staying in the Kowloon Tong property was to assist his elder brother to take care of his parents seems contradictory. Would it not be the case that his elderly father whose condition had deteriorated need more care now than before ? There was no constructive reply to this question except to say that that is why he needed to share part of his father’s medical costs and the other domestic helper salary. There is no evidence from the elderly father of being in need of such contribution. Moreover, there is no documentary evidence produced by the Father to support his sharing of such costs. 63Given careful consideration to the Father’s evidence in totality, I find there are no compelling reasons or any urgency for him to have to move out from the Kowloon Tong property in May 2014. Although I accept his evidence about his parents’ ages and health, there is no evidence that he would be ‘evicted’ or ‘expelled’ by his siblings from living in the Kowloon Tong property (where he had been living there for about 14 years since 2001) after his parents pass away. The Kowloon Tong property was owned by SLAFF Limited and not by any of the siblings, or the elder brother who allegedly was in debt and who had wanted to sell the Kowloon property. There is also no evidence in respect of the Father’s concern that he would have to move out from the Kowloon Tong property after his parents’ pass away. 64.On the other hand, the One Silver Sea property was bought in 2007 and was left vacant for about 7 years despite the Father’s case that the property was all along intended to be used as a bachelor’s flat solely by himself. The Father’s claimed intention of self use is not accepted by this Court. Reason being that from his handwritten note given to the Mother which was produced and attached as exhibit “9-SSM-1” to the Mother’s 9th Affidavit where the Father said :-
65.Although there is no date written on this handwritten note, it is obvious the One Silver Sea property, to the very least at some point in time after having it renovated expeditiously, was intended for the use of N and the Mother. 66.Secondly, it appears to me odd and unusual that the Father would not update or amend his residential address from the Kowloon Tong property to his One Silver Sea property if it was his genuine and determinative plan to move and live in his own property in May 2014. Attached to the Father’s 27th Affirmation dated 13 January 2015 as Exhibits “CCMJ27-1” is a bundle of documents of 70 pages. Within this exhibit there are the Father’s bank statements of HSBC (from February to December 2014), One Silver Sea mortgage repayment schedule for December 2014, Daily Securities Transaction Statement dated 11 December 2014, MPF Statement printed by BCT dated 17 December 2014, Visa Card statement with Bank of China from January to December 2014, Hang Seng Bank HKJC membership card statement from January to December 2014 (collectively called “personal statements”). It is noted that all these personal statements contain the Father’s name and the address used there is the Kowloon Tong property address. Even though there is no evidence before me from the Father, I am prepared to accept that it is all possible for the Father to get his personal statements sent to the Kowloon Tong property when he went there to see his elderly parents. I am, however, not convinced at all that since the Father’s reasons given (only lately during this trial) was that his moving out from the Kowloon Tong property is that he does not want to be ‘parasite (寄生蟲)’ and also to avoid any misunderstanding of his elder brother that he ‘hindered’ the sale of the Kowloon Tong property. In that case, how would his physical moving out but keeping the Kowloon Tong property address as his mailing address would alleviate his concern or show he does not want to be ‘parasite (寄生蟲)’ within the family ? In the absence of any evidence from the elder brother or the parents, it is my finding by drawing reasonable inference that either the Father’s assertion of change of residence from the Kowloon Tong property to the One Silver Sea property is only temporarily and for a purpose or it simply did not occur at all. 67.Section 10(2)(e) of the GMO empowers the Court to order property to be settled on trust and such property could already be owned by the parent either in possession or reversion or, such property to also include ‘a sum of money’ for acquiring a ‘putative property”. The One Silver Sea property is owned by the Father and could, in appropriate cases, be settled on trust with a reversion to the Father. The fact that the One Silver Sea property is encumbered by a mortgage would not prevent it from becoming the subject matter of a settlement. Any such arrangement would resolve the first question (a) posed above by Counsel if this Court is minded to grant a settlement order under Section 10(2)(e) and not a transfer order under Section 10(2)(d) of the GMO . 68.The other submission raised by Counsel that there are no cases to his knowledge that a legal owner be ‘evicted’ from using his own residence falls miles apart upon my finding of fact that the One Silver Sea property is not the Father’s place or only place of residence. It is also my finding of fact that the Father’s unprecedented move to the One Silver Sea property and then asserted using it as his place of residence is, on balance of all probabilities, not believable and likely to be an attempt to prevent the One Silver Sea property from being ‘seized’ for use by N through the Mother’s present application. 69.Turning to the second question (b) as to the Father’s financial means and resources, this Court is urged to take into account the Father’s liabilities since the Father has been granted extensive access time to N, during such access time the Father would have to pay for N’s expenses and not the Mother. Such extensive access time accounted for about 46% of the entire period of the time when N would be under the care and control of the Mother. 70.Father’s Counsel in his supplemental closing submissions on law referred to the discharge of the existing mortgage of the One Silver Sea property by the Father would involve ‘tying up’ over HK$2 million which the Father would then not be able to access until N finishes full time education and financially independent, something that is in all likelihood about 15 years away if not more. This submission, in my decision, may only be relevant if the Father could be ordered by the Court to discharge a mortgage to facilitate a transfer of ownership under Section 10(2)(d) of the GMO. Father’s Counsel had rightly submitted that the GMO does not provide such jurisdiction as to order a discharge of mortgage. If a mortgagor (the Father in the present case) voluntarily undertakes to do so, the Court could accept such an undertaking. However, as I have decided under paragraph 67 above, to order settlement of a property under Section 10(2)(e) of the GMO does not require the discharge of the existing mortgage of that property. 71.I also hold a different view with the Father’s Counsel’s submission of ‘tying up’ assets for about 15 years. If the mortgage over the One Silver Sea property is redeemed now through capital payment of HK$2 million out of the Father’s liquid cash on hand which is about 7 or 8 million, the Father would be immediately relieved from the burden of having to pay monthly mortgage instalments of HK$15,000 for the next 13 years. Since the Father’s case is that he would be losing out his employment and thus salary income upon his anticipated termination or retirement in the near future, such ‘tying up’ of HK$2 million coming out from his 7 or 8 million liquid cash on hand may be financially justified than having to pay HK$15,000 monthly mortgage instalments for the next 13 years to go, which means until the Father is 68 years old (that is, 55 + 13 = 68). According to the Bank repayment schedule of the One Silver Sea property dated 20 December 2014, the outstanding term is 156 months (i.e. 13 years). 72.Given careful consideration to the above analysis and findings and all the available options, also having taken in account the means and resources of the Father, I would grant a settlement order under Section 10 (2)(e) of the GMO in respect of the One Silver Sea property to cater for N’s use and occupation under the care of the Mother, with a reversion to the Father upon N’s reaches 18 or ceases full time education, whichever is the later. Since the Mother is granted the custody, care and control of N, she would have to live with N together until further Order. 73.Having said, whether the Father chooses to continue to discharge his monthly mortgage repayment liabilities of the One Silver Sea property with the Bank of China for the next 13 years or by full capital payment to redeem the One Silver Sea property outright is entirely a matter for the Father’s own choice of which this Court would not, as Father’s Counsel rightly submitted, have jurisdiction to deal with. (b) Renovation costs for One Silver Sea 74.The Mother filed this item of claim based upon figures and quotation provided by one Choice Design Company (at pages 1083 to 1093 of the Trial Bundle). The Mother’s case is that the One Silver Sea property would need to be refurbished back to its original layout for N’s use. The Father had refurbished the property by knocking down the wall partition of 1 room converting the property from a 3-bedroom to a 2-bedroom flat. The Father also took out the bathtub in the guest washroom to add a cabinet there. 75.In my decision, this item of claim must fail for the following reasons. 76.First, there is no sufficient evidence as to the present condition of the One Silver Sea property requires refurbishment to the extent as the Mother thought so before it could be used as N’s accommodation. Secondly, even if there is a need for some refurbishment, the extent of refurbishment must be specific (or even tailor made) to cope with N’s use and needs, no less and no more. This could only be checked out after N had moved in and live there. Thirdly, there is no sufficient evidence that the quotation is the best price obtainable in the open market or the items of refurbishment set out in the quotation are necessarily needed for N. Fourthly, the quotation was not prepared after an on-site inspection of the property and therefore lacks precision. 77.In the event that such item of refurbishment expenses are needed (which I made no finding at this stage), there are still provisions under the GMO to cater for such expenses. (c) Transportation arrangement 78.The Mother’s claim for the provision of a car to be arranged by the Father would have to be determined by considering the following questions :-
79.The Mother under cross examination agreed the Father bought the Audi Q5 after N was born. Before separation, the Father had used it to drive N. Occasionally the Father also drove her to the MTR station after she received physiotherapy treatment. 80.During cross examination, the Mother was referred to a letter dated 29 April 2011 (at page 817 of the Exhibits Bundle) by Father’s Counsel which was sent by her then solicitors to the Father’s then solicitors where it said :-
81.The Mother agreed that the letter reflected her stance at that time when N was still young and the Father could not commit to drive N daily. Faced with such situation at that time, the only option open to her was for N to take the school bus. If a car is now provided, she would be able to drive N to and from school and N would not have to take school bus. On weekends and holidays, it would be more convenient for her to drive N for pleasure trips such as to Disneyland and Shek O. The Mother further testified that the Father had once provided her with an Audi A3 to drive the Father to and from work, for her pregnancy check etc. She agreed that she had never driven the Audi Q5. 82.On the Mother’s uncontroverted evidence, transport arrangement by private car is not something ‘new’ to N since her birth. After separation, except on access occasions when the Father would pick up and return N using his Audi Q5, N does not have the benefit of transportation by private car. 83.Since N would continue to study full time in Primary 2 in coming September, I agree with Father’s Counsel that by that time there would not be much use of a private car when N is at school Mondays to Fridays (except certain weekday holidays). There is also the time when N is with the Father when there would be no need for the Mother to drive N along. Also, I agree the costs to maintain a private car is comparatively higher than taking school bus on school days and public transport on holidays. 84.If a private car is to be provided as N’s transport arrangement, I believe it is a matter of comfort and convenience more than anything about N’s best interests. In my Judgment, best interests for N on this topic should be taken to mean she could attend schools or events on time unrelated to what means of transport to bring her there, be it a private car, by MTR, by taxi or even by bus. 85.Taking into account the costs involved for maintaining a private car and considering from the best interests perspective other than the choice of comfort and convenience, I find it not reasonable for the Father to provide a private car for N’s transportation needs. This item of claim fails. (d) Monthly maintenance, school fees, uniform, extra curricular fees etc 86.There is disagreement between Counsels as to whether the Father’s Undertakings given during the hearing on 12 June 2014 embodied as the Court Order of the same date had dealt with the Mother’s claim for reimbursement of N’s school fees, school bus, school uniform, school books and stationery; and also dealt with N’s extra-curricular activities for the 62 months so much so that this Court would not have to be troubled with making any findings on those expenses at this trial. 87.I will deal with the issue of Extra-Curricular Activities expenses, school fees, school uniform etc at the later paragraphs of this Judgment when I come to consider the terms of the Order dated 12 June 2014. Suffice to say at this juncture that in any event Extra Curricular Activities expenses arranged by the Mother in excess of HK$4,000 per month is an issue to be determined by this Court since this would fall outside the maximum limit of the Undertaking. 88.The Father now sought to adjust the amount in the Undertaking on Extra Curricular Activities expenses from HK$4,000 a month down to HK$3,000 a month. This was not agreed to by the Mother. Therefore, the Undertaking stands in its original form and the maximum amount of reimbursement capped at HK$4,000 a month. 89.The Mother in her Open Proposals suggested N’s monthly maintenance and expenses in the sum of HK$59,950 included an item of carer’s allowance at HK$12,000. The Father in his Open Proposals suggested N’s monthly maintenance and expenses in the sum of HK$7,533 with the aforesaid 2 Undertakings remain intact but without any carer’s allowance. The following is the comparison table of the monthly maintenance of N (at pages 269 to 270 of the Correspondence Bundle) of the Mother’s claim and the Father’s views or comments, including his proposed amount, on each of the individual items.
90.For the item of utilities, the Father proposed HK$600. The Mother’s estimate of HK$3,800 for N’s share appears excessive. It is however not at all possible to quantify the exact sum. I would therefore assess this at HK$1,600 a month as a fair and reasonable share for N on this item. 91.For the item of NOW TV (cartoon channel), I do not agree with the Father that N, at the age of 7, should not be watching cartoon channels of programme suitable to her age. I allow this item of HK$143 a month in full. 92.For the item of Broadband Internet, the Father’s latest position as per the letter dated 10 June 2014 is to share 50% of the charges of HK$226 with the Mother. His share is HK$113. I allow this item at HK$113. 93.For the item of Food, the Father proposed HK$2,250 out of the Mother’s claim of HK$6,000. Although the Father is paying N’s school fees which include lunch, there are still food expenses for breakfast, snacks, dinner and meals for non school days when N is with the Mother. Again, it is not at all possible to quantify the exact sum. I would assess N’s expenses for this item at HK$3,000 a month. 94.For the item of household expenses, which include items such as share of toothpaste, tissue paper, washing powder, detergents, use of bowls and dishes utensils etc. The Father’s proposed sum of HK$300 a month is, in my view, definitely too low and beyond reasonableness. I would assess N’s expenses for this item at HK$1,000 a month. 95.For the item of car expenses, I had disallowed this item for the reasons set out above at paragraphs 78 to 85 of this Judgment. Although the Father’s Undertaking covered school bus, there are still transportation expenses on non school days for pleasure, attending tuition classes or Extra-Curricular Activities not being catered for. I would assess N’s expenses for this item at HK$3,000 a month. 96.For the item of domestic helper, the Father is offering HK$2,000 as N’s share for the use of the domestic helper on the basis that the Mother is going back to employment. The corollary is that if the Mother does not go back to work, there will be no such contribution by the Father. 97.I will deal with this item when I come to consider the Mother’s claim for carer’s allowance in the later paragraphs of this Judgment. 98.For the item of school books, this was covered by the Father’s Undertaking on a 14-day reimbursement basis. Therefore, there is no finding of any amount in N’s monthly expenses for this item. 99.For the item of Extra-Curricular Activities, this will be confined to those activities arranged by the Mother in excess of HK$4,000 per month. In my decision, it is fair that any Extra-Curricular Activities arranged by the Mother in excess of HK$4,000 should be equally shared between the parties. Subject to such sharing, there is no finding of any fixed amount as N’s monthly expenses for this item. 100.For the item of entertainment/presents, the Mother’s estimate of HK$3,800 appears excessive. Again, it is not at all possible to quantify the exact sum. I would assess N’s expenses for this item at HK$1,600 a month. 102.For the item of holidays, I agree with the Father that on all fairness each party should pay for their own holiday arrangements for N. There is no finding of any fixed amount over this item as N’s monthly expenses. 102.For the item of clothing/shoes, the Father agreed the sum of HK$500. There will be a finding for this item at this amount. 103.For the item of medical insurance, the Father agreed the sum of HK$370. There will be a finding for this item at this amount. 104.For the item of lunch/pocket money, the Father maintained this had been covered by his Undertaking to pay school fees of which lunch is included. Mother in her evidence clarified that the sum of HK$1,000 a month was given to N each month to teach her savings habit. Whilst I accept the Mother’s evidence of the need to teach N savings habit and this is no doubt in N’s best interests to learn, I do not agree such ‘money for savings’ should take the form of any regular monthly maintenance payment from the Father. This item will be disallowed. 105.For the item of skincare, the Father agreed the sum of HK$100. There will be a finding for this item at this amount. 106.For the item of other foodstuff or vitamins, Marine Omega, Edible bird’s nest, Probiotics, Caterpillar fungus and ingredients for soup, the Father disagreed completely. Father’s stance is that if the Mother provides healthy food for N, no supplemental or luxurious nourishment is needed. I can hardly agree with the Father. In my decision, it is not uncommon for child of tender years to take vitamins or food supplements although this need to be selective in quality, quantity and kind of supplement. I would assess N’s expenses for this item at HK$2,300 a month. 107.Based on the above assessment adding together, I find N’s monthly expenses, not to include those items covered by the Father’s Undertakings and for the time being, the carer’s allowance, at HK$13,726 a month. 108.The Father, apart from challenging N’s monthly expenses claimed by the Mother to every single dollar and cents, also invited the Court to take into account that the Father is now having about 46% of access time during such time the Mother would not have to pay for N’s expenses. I will deal with this submission at the later paragraphs of this Judgment. (e) Carer’s Allowance 109.The Mother is seeking a sum of HK$12,000 as Carer’s Allowance. The Father strongly opposed this item on the basis that the Mother has earning capacity. Prior to the cohabitation, the Mother was working for her father’s canteen earning HK$10,000 a month. The Father alleged that the Mother had not resigned but took maternity leave for the pregnancy. Besides, the Mother is now working as a ‘sales distributor’ with Nu Skin with commission income derived from sales of products. The Mother in her Form E had confirmed that she had received income from Nu Skin at HK$54,854.29 for a period of 6 months from May to October 2013 which averaged out at HK$9,142.38 a month (i.e. HK$54,854.29 x 1/6 = HK$9,142.38). In November 2013 she earned HK$7,316.34, in December 2013 she earned HK$2,166.96 and in January 2014 she earned HK$4,842.30. 110.The Mother in her 9th Affidavit in reply explained she only came across Nu Skin in February 2013 when she joined their membership to purchase vitamins and cod oil for N as an end user consumer. She found the products safe and effective. She therefore started to introduce Nu Skin products to her friends and relatives. This is not any kind of employment since there are no fixed hours of work. The participation in Nu Skin is flexible and she only received income upon purchases made through her. The Mother further explained the reason for joining Nu Skin was because since July 2012, the Father had further reduced N’s monthly maintenance. At that time she was already in debts owed to her father’s business. She did not want to increase her debts and liabilities. The income received from Nu Skin had been spent to repay her loans, to pay for N’s English class and to pay for a trip to Dubai with N during Chinese New Year. To prove the Father’s further reduction in maintenance, the Mother produced a handwritten note written by the Father produced as Exhibit No. “9-SSM-7” in her 9th Affidavit (at page 828 of the Trial Bundle) where the Father said :-
111.This handwritten note is undated but it came in together with a cheque dated 12 November 2012 drawn in favour of the Mother for HK$5,000 as maintenance. The contents of the quoted sentence, on all fours, tally with the Mother’s evidence that the Father had reduced N’s maintenance in 2012. First, I believe and find more probable than not that this handwritten note was sent to the Mother around the time of the cheque. Secondly, I find the meaning of the Chinese character “…再 cut budget” speaks for itself which literally means “again cut budget”. I was invited by Father’s Counsel not to just consider the meaning of the quoted sentence in isolation or in context but also to have regard to the overall circumstances and the background when the note was so written and given. However, Counsel has not been able to persuade me further that the quoted sentence bears a meaning different from what I have found. 112.I accept the Mother’s evidence and reason for her joining Nu Skin. Having so found to be the case, would justice and fairness permit the Father could take advantage of his unilateral reduction of N’s maintenance, which was ‘forced upon’ the single parent Mother who simply made her efforts to relieve her financial burden on maintaining N, then to come up to say the Mother had earning capacity and had also earned income; and accordingly, the Mother is not entitled to any Carer’s Allowance ? In my judgment, the short answer must be ‘No’. 113.During cross examination of the Mother on the item of domestic helper as part of N’s expenses, the Father’s Counsel positively put to the Mother that she was not financially qualified to hire a domestic helper since she had no income to satisfy the Immigration requirements on hiring foreign domestic helper. The Mother’s initial answer was that she did not know clearly the Immigration requirements but she might agree if that is the case. Father’s Counsel then produced those requirements downloaded from Immigration Department as to the requirements for hiring foreign domestic helpers and other related extracts. These were produced and marked Exhibit A(1)(i) and A(1)(ii) at the trial. 114.Given this is the Father’s case on the Mother’s eligibility to hire domestic helper to take care of N, and given the fact that the Mother was granted custody, care and control of N and has been the primary carer since N was 6 months old, it goes without say the Mother would be the only person to look after N under the terms of the custody order. I see no reason why the Mother should not be given carer’s allowance. I will so order accordingly. 115.In the case of Re P (Child : Financial Provision) [2003] 2 FLR 865 where Thorpe LJ said :-
116.In the case of IDC v. SSA (supra), I find the following passages from the Judgment of the learned trial Judge Bruno Chan on the item of carer’s allowance particularly useful :-
117.I adopt the approach of the learned trial Judge in IDC v. SSA (supra) for granting the Mother’s carer’s allowance. I fixed the Mother’s carer’s allowance at the rate of HK$10,000 a month. Such allowance to be dated back to the date of her Summons (i.e. 25 October 2013). 118.Since I have allowed carer’s allowance for the Mother, there will be no finding of any amount on the Mother’s claim for domestic helper. (f) Purchase of a Harp in the sum of HK$40,000 119.The Mother in her evidence at trial agreed not to pursue further on this item. Accordingly, there will be no award on this item. (g) Reimbursement by way of lump sum of HK$1,056,269 (From May 2009 to June 2014) – total 62 months 120.The Mother agreed she had received HK$426,951 (from May 2009 to August 2013) and HK$98,000 (from September 2013 to June 2014) from the Father. 121.The sum of HK$1,056,269 which the Mother is now claiming reimbursement was arrived at by using N’s expenses of which she assessed at HK$22,449 a month for 62 months (from May 2009 to June 2014), plus Extra Curricular Activities of HK$83,626, Medical of HK$23,836, School Bus of HK$39,920 and Holiday expenses of HK$42,000 and then minus the 2 sums she had received from the Father (at pages 331 to 333 of the Pleadings Bundle). 122.The Mother under cross examination confirmed the sum of HK$1,056,269 was the amount she had spent on N which she is seeking reimbursement from the Father. Counsel for the Father, in his written closing submissions, used the Mother’s claim for reimbursement of HK$1,056,269, plus the 2 sums of HK$426,951 and HK$98,000 received by the Mother, and worked out a summation of HK$1,581,220 as the total sum of money which the Mother allegedly had spent on N for the 62 months between May 2009 and June 2014. 123.The Mother under cross examination was also asked to give a figure as to how much she spent on herself for the past 62 months. The answer given by the Mother was around HK$10,000 a month. 12.Counsel for the Father then, using the Mother’s claim for reimbursement of HK$1,056,269, plus the Mother’s spending on herself of HK$620,000 (i.e. HK$60,000 x 62 months) and came up with the figure of HK$1,676,269 as the Mother’s and N’s combined expenses. The Mother’s further evidence under cross examination was that, leaving apart the Father’s contribution of the 2 sums of HK$426,951 and HK$98,000 in the past, she had to use her credit cards and to obtain loans from her father and her father’s business to make ends meet on the monthly expenditure. The total amount of indebtedness disclosed in her Form E is HK$753,002. It was then submitted by Father’s Counsel that the Mother’s case on N’s expenses for reimbursement simply did not add up at all. Reason being that there was an unexplained sum of HK$923,267 (HK$1,676,269 – HK$753,002 = HK$923,267) of ‘magical money’ (using Counsel’s phrase in his written submissions) coming from nowhere in the Mother’s evidence . 125.At paragraph 34 of Father’s Counsel’s written submissions, it was then submitted that given the Mother’s unexplained sum of HK$923,267, the best way to work out N’s expenses for the past 62 months (May 2009 to June 2014) would be by adding :-
with all these added up together is HK$1,480,953. By average this figure for the 62 months, it works out at HK$23,886 per month (HK$1,480,953 x 1/62 = HK$23,886). 126.At paragraph 36 of Counsel’s written closing submissions, it was further submitted that the said HK$1,480,953 is in fact not appropriate for going forward. Reason being that this amount had included the 3 sums of money claimed by the Mother to have been spent but was however either covered by the Father’s Undertaking to pay them or covered by insurance coverage. The 3 sums are respectively HK$83,626 for Extra-Curricular Activities (covered by Father’s Undertaking); HK$39,920 for school bus (also covered by Father’s Undertaking) and HK$23,836 for medical expenses (covered by medical insurance). If one is to take away these 3 sums, the total amount would then be reduced from HK$1,480,953 to HK$1,333,571 (i.e. HK$1,480,953 – HK$83,626 – HK$39,920 – HK$23,836 = HK$1,333,571) for 62 months which would work out an average of HK$21,509 a month. 127.This base figure of HK$21,509 so arrived at, submitted by Father’s Counsel at paragraph 37 of his written closing submissions, would be the expenses for both the Mother and N combined together. 128.Father’s Counsel’s then, at paragraph 39 of his written closing submissions, further submitted that a fair and reasonable apportionment would be 2:1 for Mother : N in terms of the combined expenses of HK$21,509 he so worked out. Such apportionment rests upon the fact that N spends ‘half-time’ with the Mother. By such 2:1 ratio, N’s expenses would be around HK$7,169 a month (HK$21,509 x 1/3). This amount of HK$7,169 compares fairly and reasonably with the Father’s estimate and in his Open Proposals of HK$7,533 a month. The figure of HK$7,533 a month should be used as a base figure for calculating the Mother’s claim for 62 months reimbursement claim subject to some other additions and deductions. He thus worked out the outstanding amount of reimbursement to be HK$89,477 (see paragraphs 46 to 49 of Counsel’s written closing submission). 129.In all cases involving children, I would say there is no hard and fast rule as to how a child’s expenses should be worked out or any rigid formula to adhere to or any scientific methodology of calculation to be adopted. There is always a degree of flexibility and reasonableness within the Court’s discretion. A child’s expenses are made up of different items also at variable amounts in different cases depending on the child’s needs of which age is one of the factors. It may be over simplistic if the Court is to apply any rigid straight line theoretical approach to determine a child’s expenses. 130.There was challenge from the Father’s Counsel as to the figures provided by the Mother did not sit together happily, leaving the so-called ‘magical money’ unexplained (see paragraph 124 above). Mother’s evidence as to the loans from her father and her father’s business was heatedly challenged by Father’s Counsel as ‘soft loans’ for lack of any obligation of the Mother to repay. In fact, on the Mother’s evidence under cross examination, she confirmed and agreed that it had never been repaid so far but she then said there would be repayment after these proceedings. I believe the Mother was meant to say being successful in her claim of reimbursement after these proceedings. 131.I noted there is no documentary evidence from the Mother on the alleged loans due to her father and/or her father’s business. Her father had not been arranged as a witness to testify on this issue either. It is the Mother’s case that the reason for having to obtain financial assistance from her father and/or father’s business, leaving aside for the time being her need to rely on loans from her own credit cards, is because of the need to maintain N due to insufficient maintenance from the Father, of which had been further reduced to HK$5,000 in 2012. 132. In relation to the Mother’s claim for reimbursement of N’s expenses already incurred, the proper question to be considered is not the nature or source of funds obtained by the Mother, be it a loan recognised by law, a ‘soft loan’ or even a gift of moneys out of parental love and affection. What is in real issue is whether there are actually liabilities or expenses reasonably incurred by the Mother for N from May 2009 to June 2014 (62 months), then using the statutory wordings of Section 10(2)(a) of the GMO, ‘…… for the purposes of …………. maintaining the minor before the making of the order……..as the court thinks reasonable having regard to the means of that parent’ of which the Father is now obliged to repay. 133.It is useful to refer to the Father’s Open Proposals set out in his lawyers’ letter dated 10 June 2014 (at pages 266 to 268 of the Correspondence Bundle) on the Mother’s claim for reimbursement which are as follows :-
134. Although there is no sufficient evidence to ground a finding of loan owed by the Mother to her father or the father’s business, I believe the Mother’s testimonies and accept her evidence to be more probable than not that she had incurred liabilities and expenses for maintaining N during the said 62 months. The Father had not been able to show or was it the Father’s position in his Open Proposals in June 2014 or his case throughout this trial that the 2 sums of HK$426,951 and HK$98,000 he paid were already adequate and enough to meet all of N’s expenses for the 62 months. 135.It is undisputed that receipts and documents for the 62 months period had already been provided to the Father although lack completeness. However, the receipts are already quite substantial in quantity as can be seen from the photocopies produced for this trial (see pages 160 to 261 of Correspondence Bundle; pages 1021 to 1076 of the Exhibits Bundle) although they did not add up to every single dollar and cents of the amount claimed for reimbursement. Mother’s Counsel invited this Court to consider what would be the reasonable amount. 136.I believe the Mother had been doing her very best to keep up with the receipts. On each of the pages from 160 to 261 of the Correspondence Bundle, there are 2, 3, 4 or more receipts put together and then photocopied as 1 page apparently for green reasons. Take just a few examples, the receipts can be as petty as HK$13 for buying bread in A-1 Bakery inside ‘Taste’ supermarket on 5 August 2010 (at page 160), a pack of strawberries for HK$24.80 on 5 April 2010 (at page 163), a pack of Tofu for HK$5.80 at Park’N shop on 11 October 2009 (at page 202), 2 Muffins for HK$20 at Park’N Shop on 23 September 2009 (at page 202), a pack of菜心 for HK$12.20 on 25 April 2010 (at page 203) so on and so forth. There are also receipts of comparatively larger amount, say for instance, of medical fees of Dr. Cheng Chun Fai at $1,510 (at page 252). 137.In answering the Father’s Questionnaire, the Mother had also provided various other receipts (see pages 1021 to 1076 of Exhibits Bundle) where, over and again, receipts of petty sums can be seen. Examples such as receipts from fresh food market stall 名鮮店 for buying chicken (雞) at HK$32 (at page 1022), from fresh food market stall成安時果 for buying apples (蘋果) for $20 (at page 1037), from fresh fruit market stall 四季蔬菜 for buying eggplant (茄子) for $8, so on and so forth. 138.Amongst the receipts produced by the Mother, there are also other receipts for purchase of various different items of food and groceries adding up to a few hundred dollars. For the items shown on these receipts, I believe those items were not for the exclusive consumption of N but by the Mother’s maiden family of which N would have taken part at the meals. In that case, how are we going to carve out how many taels out of a catty of菜心was eaten by N ? This is an impossible task. 139.In my decision, it is plainly impossible to split or divide which item out of these purchases was consumed by N for which the Father should pay for it. In that case how could the Mother in any position to provide ‘….breakdown and calculation……’ to reply to the Father’s Open Proposals I cited above ? 140.Faced with such a scenario, what the Court would do is to adopt a broad brush approach in assessing N’s portion. The best and fairest way, in my decision, is to give a discount over the expenses claimed by the Mother for reflecting items not consumed by N, then deduct the 2 sums of HK$426,951 and HK$98,000 already paid by the Father from the discounted figure to arrive at the best estimate for N’s expenses for the 62 months. This is what I have done in the following paragraphs. 141.I wish to add that given the lengthy period of time, even if a particular amount for a particular month was found to be N’s expenses, it does not necessary follow it was the same the following month or throughout the entire 62 months. N was born in November 2008. The 62 months stretched from May 2009 (when N was only 6 months old) up until June 2014 (when N was 5 years and 7 months old). There are different needs in terms of food and expenses as N grows up day by day from 6 months to 5 years and 7 months within the 62 months period. 142.Having said and for assessing N’s expenses for the 62 months period, I will apply a 20% discount on the total amount which the Mother alleged had been spent on N from her own moneys and from the amount of indebtedness disclosed in her Form E, that is to say, 80% of the summation of HK$203,000 and HK$753,002 (that is, totalling HK$956,002) to be my assessment of N’s reimbursement sum which come up with the figure of HK$764,801.60 (that is, HK$956,002 x 80/100 = HK$764,801.60). 143.Then by offsetting the Father’s 2 payments of HK$426,951 and HK$98,000 (that is, totalling HK$524,951) against this sum of HK$764,801.60 and arrive at the net sum (my emphasis) for N’s reimbursement, of HK$239,850.60 (that is, HK$764,801.60 – HK$426,951 – HK$98,000 = HK$239,850.60). 144.The last question on this item of reimbursement is whether the aforesaid 3 sums of HK$83,626, HK$39,920 and HK$23,836 (see paragraph 126 above) have to be deducted from this net sum for N’s reimbursement for the reason that they were covered either by the terms of the Father’s Undertaking or medical coverage. The answer must be considered by reference to the Order dated 12 June 2014. The Order dated 12 June 2014 145.This Order embodied the Father’s 2 Undertakings and was drafted by the Mother’s solicitors ‘having the carriage of the order’ (see 42//5/4 of HKCP 2015), perfected and sealed on 16 July 2014. There is no question that it had been duly served upon the Father’s lawyers. 146.Since the Order has been perfected and sealed, it is trite that this Court is now functus officio on the terms therein (see Andayani v. Chan Oi Ling [2000] 4 HKC 233). If any party considers that an order not in accordance with the order as pronounced, he should apply to the court to vary the order as soon as possible so as to prevent the order from being passed and entered and made final (Re Swire (1885) 30 Ch.D, 239). 147.In my decision, the terms of the Undertakings are clear in context and coverage, it refers to “all school fees, school bus, school uniform, school books and stationery…….” and “all reasonable costs of extra-curricular activities ……no exceed HK$4,000 per month….” without any reference or restrictions as to any period of time for it to apply, whether in prospective, that is to take effect from and since the date of the Undertakings, or retrospective, that is to also cover expenses before the date of the Undertakings. 148.In my decision, the Father’s 2 Undertakings apply to expenses before and after the date when the Undertakings were given. That is to say, they also covered those expenses under the Mother’s claim for reimbursements within the 62 months. There are 2 reasons for this finding. First, the Undertakings contained the word “all” which could not be taken to mean only expenses spent on and after the date of the Undertakings. Secondly, the 12 June 2014 was the very first day of the trial of the Mother’s claim which included reimbursement of these expenses that had been spent within the 62 months prior to the trial. The 2 Undertakings were included (as drafted by the Mother’s lawyers) as pre-emptive clauses before the order for adjournment of the trial. Without any express limitation as to the time period, this could not be taken to mean it only covers expenses spent on and after the date of the Undertakings but not before. 149.It is my decision that the 2 sums of HK$83,626 for Extra-Curricular Activities expenses and HK$39,920 for School Bus (spent and incurred during the 62 months between May 2009 and June 2014) both fall within the terms of the Father’s 2 Undertakings given on 12 June 2014. Accordingly, subject to the Father’s full compliance of the terms of his Undertakings, these 2 sums would have to be deducted from the sum of HK$239,850.60 (paragraph 143 above). 150.The medical expenses of HK$23,836 for N fall outside the Father’s Undertakings. Given the lapse of time since these expenses were incurred, they are now no longer recoverable from the Father’s employer’s medical insurance. In Father’s Counsel’s written closing submissions on calculation of outstanding reimbursement figure, it was said that the Mother had belatedly provided the Father with documentary proof. It is now too late to claim from medical insurers and the Father would have to pay from his own pocket (paragraph 48(3) of Counsel’s submissions). The Father’s Counsel, with this sum of HK$23,836 added in as money payable by the Father, then came up with the total sum of HK$89,477 as the total outstanding amount. The fact that the Father had not produced evidence on his assertion of the Mother belatedly gave him the receipts and the inclusion of such sum as part of the amount which need to be reimbursed, it is my decision that such medical expenses should not be deducted from the sum of HK$239,850.60 (paragraph 143 above). 151.Based on the above, the net amount of reimbursement to be paid by the Father to the Mother, subject to full reimbursement of the Extra-Curricular Activities expenses and School Bus expenses, is HK$140,140.61 (that is HK$239,850.61 – HK$83,626 – HK$39,920 + HK$23,836 = HK$140,140.61). The Father’s 27th Affirmation dated 13 January 2015 152.Without obtaining leave of the Court in advance, the Father sought to update his latest financial position since he filed his Form E in February 2014 by filing his 27th Affirmation. 153.The Father claimed his assets had dropped by about 2 million odd dollars within the past 11 months from around HK$22.7 million to around HK$20.7 million notwithstanding some of his asset values such as stocks and securities and the One Silver Sea property had increased. 154.The reasons put forward for the drop in asset values include having to pay his own legal costs but still with an outstanding sum of HK$449,735 as at 9 January 2014; he had to contribute to his father’s medical expenses and care expenses including a domestic helper, having to share HK$19,800 per month towards his father’s medical expenses with his other siblings; utilities expenses for the One Silver Sea property as he had moved in there in May 2014; having to reserve HK$500,000 to purchase Individual Nomination Right of ESF for N which will be payable later this year; having to reserve a respectable amount of funds for N’s future education, tuition, physical health, care and mental health care, possible overseas medical treatment, having to spend approximately HK$4,000 a month for counselling N’s anxiety issue. 155.Besides, there are medical costs for his own healthcare as he expected to have to purchase health insurance after his current employment was terminated. He anticipated such costs to be in the region of HK$40,000. 156.At paragraph 17 of this 27th Affirmation, he deposed he had been receiving treatment since May 2012 for major depressive disorder, anxiety and insomnia. He had incurred treatment costs of HK$45,612 from May 2014 to January 2015 for his depression. The treatment costs receipts were produced under Exhibit No.”CCMJ27-4”. A letter from his treating doctor was produced under Exhibit “CCMJ27-6”. 157.In my decision, a parent’s liability or potential liability to pay his own legal fees for privately engaged lawyers, in my view, is not a factor which the Court should have much regard to when considering the means of the paying parent under the provisions of the GMO. Otherwise, a parent under legal obligation to maintain his or her child could, when being claimed in a court of law, engage the most expensive legal team and argue his or her resources are being used up for or exhausted by the legal fees in the subject proceedings where the child’s maintenance is at stake. In the present case, it is the Father’s own choice and preference to have lawyers and Counsels to represent him for the past 5 years since he issued the Originating Summons back in 2010. In my decision, this is an item of expenses of which the maintenance of the child in question should not be giving way to. 158.There is no other evidence to substantiate the Father’s assertion of having to contribute to his father’s medical expenses and care expenses including a domestic helper, having to share HK$19,800 per month towards his father’s medical expenses with his other siblings, apart from his own assertions. None of his siblings or parents were arranged to testify on such issue. Therefore, I need to consider from all the circumstances objectively and on balance of all probabilities, to determine his credentials as to whether such additional expenses do exist. 159.Throughout these proceedings, there has never been any evidence adduced as to the Father’s parents requires financial assistance. The Father’s parents’ financial situation seems quite wealthy instead. To the very least and leaving aside the asset value of the Kowloon Tong property beneficially owned by the Father’s parents, it is the Father’s case that a sum of HK$32 million in cash once kept in his personal account with the Bank of China is in fact his mother’s money. He simply kept it on trust for his mother. Such evidence can be found in the Affirmation of the Father’s mother, Madam Wong xxx filed in these proceedings. The Father had also arranged another Madam Wong, an officer from the Bank of China, to testify upon such issue on the last day of trial. This piece of evidence alone, in my view, justifiably displaces any suggestion of financial needs of the Father’s parents. 160.I noted it is the Father’s evidence that he was making the contribution towards the medical costs of his elderly father for filial reasons (there is no such finding by this Court) rather than parents’ financial needs. Since the Father invited the Court to note these contributions when assessing his financial abilities to maintain N, it is my decision that this would be a relevant factor for the Court to take into account if and only if (my emphasis) there are financial needs of the parents which the Father must bear or share. Otherwise, such contribution would not be a relevant factor for the Court when deciding the parent’s means to provide for his or her child’s maintenance. 161.Based upon the finding of this Court that the One Silver Sea property is not the Father’s residence or only place of residence, coupled with the fact that the utilities expenses for the Father (1 person), such as gas, water, electricity etc in all circumstances would be minimal, I do not believe such utilities payment for the One Silver Sea property would affect the Father’s means to support N. The other expenses such as government rent, rates, management fees and also mortgage instalments of the One Silver Sea property are payable anyway whether or not the Father is residing there. These other expenses are not something ‘new’ and in fact had all along been paid by the Father ever since he purchased the One Silver Sea property in 2007. How could this be counted as a factor for change of the Father’s financial means and resources in the past 11 months since he filed the Form E in February 2014? 162.The need to purchase health insurance and reserve funds for N as the Father had so deposed is, in my view, neither here nor there in so far as the present application is concerned. Reason being that these are not accrued liabilities due and payable. It is, in my decision, incorrect to take into account of future and not yet existing or contingent liabilities, such as having to ‘hold up’ funds or to reserve moneys even for designated objectives and purposes, when the Court is required to consider a parent’s means to meet imminent (my emphasis) maintenance payments or to reimburse the other parent for past accrued (my emphasis) maintenance liabilities of his or her child. Such reason could not take precedence over a child’s right to be adequately maintained afforded by the law. It also could not prejudice the other parent’s right to seek reimbursement under the statutory provisions. I need to clarify that in forming such a view, I do not mean reserving funds for the child’s future use is not in the child’s best interests. However, this involves an element of ‘wait and see’ whether those funds so reserved or being held up are really needed for the child. The same applies to the need to purchase health insurance which only arises when the termination actually materialise. I would also add there is no evidence to support the Father’s case of the ‘would-be’ termination of employment except his own assertion. 163.The receipts for the Father’s treatment costs of HK$45,612 are contained in 10 receipts issued by Dr. Gabriel B.K. Hung. There is also a letter by Dr. Hung dated 7 January 2015. 164.In Dr. Hung’s letter, there is no reference to the anticipated or likely treatment costs for the Father. There is also no reference to any likely period of treatment or expected recovery time. Dr. Hung has diagnosed the Father to have suffered from, quoting the words of the doctor, ‘significant anxiety symptoms, being on multiple psychiatric medications for treatment of depression, anxiety and insomnia’. It appears to me extremely odd and unusual that the doctor also stated in the letter that he has no reservation regarding the Father’s fitness to take care of N and his psychiatric condition has no impact on the Father’s ability. In the absence of further medical evidence or elaboration from Dr. Hung, I am in no position to accept the ‘face value’ of the letter and, in particular, the spending of those sums as per the 10 receipts to be sufficient to the extent of affecting the Father’s financial means and resources to financially support N. 165.At paragraph 14 of the 27th Affirmation, the Father had not disclosed nor deposed further in any detail as to whether the treatment costs of HK$45,612 spent are recoverable or had already been recovered from the medical insurance scheme of his current employer. If so, such expenses would not be affecting his financial means. For the fact that the Father at paragraph 4.2 of his Form E deposed to medical expenses (if not covered by medical insurance provided by employer) of HK$500, I believe such treatment costs would have been covered by the employer’s medical insurance scheme. If these expenses are not recoverable and had to be paid by the Father himself, as I said above, there is nonetheless no evidence how much more and for how long the Father would have to pay these treatment costs which would affect his financial means and resources. At paragraph 4.4 of the Form E dated 18 February 2014 (Anticipated Future Expenses), the Father had not stated there are any such psychiatric treatment costs for himself. If such treatment costs are on an on-going basis, I believe he would have said so in paragraph 4.4 since he deposed having received treatment on his psychiatric problems since May 2012 (see paragraph 17 of his 24th Affirmation). 166.Nonetheless, I wish to add that such treatment costs of HK$45,612 only represents 0.228 % of his latest net assets value of HK$20 million, or, even to take away the asset value of the One Silver Sea property of HK$13 million, only represents 0.57% of his latest net cash value on hand of around HK$8 million, if the Father really had to pay it out of his own pocket. 167.I also wish to add that Dr. Hung in his letter said he started treating the Father in May 2014. The Father himself deposed at paragraph 17 that he had been receiving treatment since May 2012 for major depressive disorder, anxiety and insomnia. Dr. Hung described the Father’s condition as ‘significant anxiety symptoms, being on multiple psychiatric medications for treatment of depression, anxiety and insomnia’. The descriptive wordings of the diagnosis seem to suggest some degree of seriousness which had occurred for some time. This tally with the Father’s own evidence of having been receiving treatment of his psychiatric problems since May 2012. In that case, why there is no medical reports or receipts for the treatment between 2012 and 2014 prior to the Father seeing Dr. Hung ? More importantly, I noted that at paragraph 1.12 of his Form E dated 18 February 2014, he put in the word ‘Nil’ for himself when he was required to state with full details whether he has any physical or mental disability. At the same paragraph 1.12 he had, however, chosen to state quite a lot of physical disability of N. Had the Father’s psychiatric problems started in May 2012 as stated in paragraph 17 of his 24th Affirmation, he should not have stated ‘Nil’ in the Form E in February 2014. 168.Given the fact that the Father is conversant with English and his case had all along been handled by reputable legal firms with extensive matrimonial practice and experienced Counsels, it strikes me with great surprise if this was any kind of error or oversight on the part of those handling the drafting. We are dealing with 2 different documents, the Form E and 24th Affirmation, affirmed on 2 different dates, namely 18 February 2014 and 28 February 2014 respectively. It needs very high probability of coincidence for such kind of error or oversight to occur. 169.The Father also produced as Exhibit “CCMJ27-7” an Attendance Certificate issued by Evangel Hospital to certify his attendance on 19 April 2014 for suffering from Insomnia. Such certificate is not, in my view, convincing evidence so as to affect his financial means and resources to support N. Father’s Employment Contract 170.It is the Father’s evidence that his monthly salary was adjusted from HK$100,000 to HK$70,000 since October 2010. He had so far only produced a 6-page Employment Contract dated January 2008 for the HK$100,000 monthly salary (at pages 163 to 168 of Exhibits Bundle). He testified at trial that there was no written Employment Contract signed with his current employer for the switch over to part time work earning HK$70,000 a month. Although this is not an issue heatedly contested by the Mother, it again appears odd and unusual to me that a Hong Kong listed company not to have any written contract or memorandum to record such change when there was a very well drafted and comprehensive 6-page Employment Contract in the first place. The Beijing property 171.The Father is also one of the co-owner of a property in Beijing since 2007 with one of his friends through a corporate vehicle MB Limited. 172.According to the Father’s Form E (Annexure A) dated 18 February 2014 which is over a year ago (at page 189 of the Pleadings Bundle), the Father estimated the market value was around HK$9.21 million. There was no mortgage on this property nor, according to the Father’s evidence a trial, had it been rented out at any time. The property was just left there since it was purchased. The down payment at that time was about RMB 3.06 million or HK$3.09 million (the Father took an exchange rate of RMB: HK at 1: 1.01 only). 173.Taking the current exchange rate which is around RMB: HK at 1: 1.25, the current market value would definitely be more than HK9.21 million. Moreover, I took judicial notice that since February 2014, property prices in Hong Kong and major cities like Beijing, Shanghai in Mainland China had arisen quite a lot. The current market value (taking into account the rise in property prices and also the 25% or so increase in exchange rates of RMB when compared with the Father’s exchange rate of RMB: HK at 1: 1.01 in the Form E), I believe this property might worth around HK$10 million or even more at the date of this trial. 174.In my view, this is an asset of which the Father owns 50% interest at a present value of about HK$5 million if not more (50% of HK$10 million or more) idling around the corner for the past 8 years which should also be taken into account of when assessing the Father’s financial means and resources. 175.Although the Father gave an explanation for the property to be left unrented for various reasons, such as the complexities for renting out in Mainland China and other fiscal laws and regulations in the PRC, he had not come up with any evidence in support of such explanation. It is fair and reasonable to say the Father did have the financial ability to acquire this property and the further financial ability to let the property yielding zero income since 2007. The Father’s mother’s Affirmation 176.Since no issue was taken by the Mother’s Counsel as to the sum of HK$32 million transferred back from the Father to his mother Madam Wong, there is no finding of this Court as to the contents of Madam Wong’s Affirmation dated 8 June 2014. The evidence of the Bank Officer Madam Wong 177.The evidence of the bank officer Madam Wong relates to the sum of HK$32 million. As said, since no issue was taken by the Mother’s Counsel at trial that such sum actually belongs to the Father, there will be no finding of this Court as to the credentials of this witness’s testimonies. The Father’s overall financial means 178.Given careful consideration and assessment of all the above, I come to the conclusion that the Father’s overall financial means and resources are sufficient to maintain the child N at the level of living standard comparable to the Father’s present living standard. It is also my finding that it is in N’s best interests to have such standard of living. 179.I have also considered Father’s Counsel’s submission of the need to take into account the percentage of access time (that is, 44% with Father) when considering Father’s liabilities to meet N’s expenses (at paragraphs 69 and 108 above). Given this Court’s finding on the Father’s financial means and resources, any expenses to be incurred by the Father during his 44% access time would not, in my view, affect the Father’s means to support N to the extent as I have so decided in this Judgment. Conclusion 180.For all the reasons above, there will be financial provisions for the child N, subject to the Legal Aid First Charge (if any), as follows :-
Costs 181.Given the outcome of this case and the latest Open Proposals of the Father, I see no reason or any basis to depart from the normal rule for costs to follow the event. 182.I decided that the Father should pay all the costs of the Mother’s Summons dated 25 October 2013 including all costs reserved, to be taxed if not agreed, on party and party basis. The Mother’s own costs be taxed in accordance with Legal Aid Regulations. 183.I also grant Certificate for Counsel. 184.This is a costs order nisi which will become absolute if no application to vary the same within 14 days from the date of this Judgment. 185.Last but not least, I wish to thank Counsels for the assistance to the Court.
Mr. Jeremy S.K. Chan instructed by Messrs. Haldanes, Solicitors for the Applicant Mr. Kevin Li instructed by Messrs. Stevenson, Wong & Co, Solicitors for the Respondent assigned by the Director of Legal Aid | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMP 67/2010