S v O

Court:Family Court (Hong Kong)
Judgement Number:FCMC5603/2003
Judgment Date:19 Mar 2005
FCMC005603/2003 S v. O

FCMC 5603 / 2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 5603 OF 2003

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BETWEEN

S Petitioner
and
O Respondent

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Coram : Deputy Judge C. K. Chan in Chambers

Date of Hearing : 14 – 17 December 2004

Date of Judgment : 19 March 2005

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J U D G M E N T

_________________

1. This is a trial of the Respondent’s application for ancillary relief against the Petitioner. For convenience, I shall call the Petitioner the husband and the Respondent the wife in this judgment.

Background

2. The parties met in 1993 when the wife was working as a Guest Services Officer of a hotel in Manila. The husband was the Director of Culinary Development of the same hotel with the wife working under him at that time.

3. The parties started to date each other in about November 1993. As it might not be too appropriate for a senior staff to develop a love affair with a subordinate in the same department, the wife quitted her job and started to cohabit with the husband.

4. The parties got married in 1998 with their matrimonial home at Kadoorie Avenue, Kowloon, Hong Kong as the husband had already been transferred here.

5. There is some dispute on the wife’s alleged cohabitation with the husband between the period of 1993 and 1998. The husband said they were merely lovers with the wife staying at his home occasionally when she travelled to Hong Kong from the Philippines. I shall turn to that later in this judgment.

6. The parties have no children during the marriage.

7. It is not in dispute that after the beginning of their relationship, the wife had ceased her full time employment but only worked occasionally as a part-time model with negligible income. The husband had taken up the role to maintain the wife by providing her with 2 supplementary credit cards with unlimited credit and cash allowance was also given. On average, the wife spent about HK$10,000 to $30,000 each month on the credit cards. On top of that, the husband gave her HK$7,000 cash each month to meet her other expenses which was later increased to HK$10,000 after marriage. Furthermore, the husband had also provided the wife with a membership of the Pacific Club so that the wife could enjoy the facilities there, which included swimming pool, spa, sauna, facial and massage treatment, manicures and pedicures etc.

8. The relationship between the parties began to turn sour by the end of 2001 after the wife had taken a trip to Italy. The husband alleged the wife to have maintained an affair with an Italian man which was of course denied by the wife. Even worse was the allegation that the wife had gone on a spending spree in February and March of 2002 on her credit cards for a sum of more than HK$1.5 million which had almost pushed the husband to the edge of bankruptcy.

9. The husband immediately stopped the wife’s 2 supplementary credit cards and suspended the monthly maintenance. He also had to arrange for a personal loan from the banks to cover the credit card payments. Starting from that period of time, the parties stopped cohabitation and they separated from each other.

10. The final blow came in October 2002 when the husband alleged that the wife came to the matrimonial home when he was out of town and removed most of his personal belongings, artefact collection, household furnishings, home appliances, utensils and cutlery (“the husband’s personal items”) without his consent. There are a total of 56 items as listed in page 568 – 570 of the Trial Bundle. For ease of reference, they are now reproduced in the schedule attached to this judgment. The husband valued them at a total sum of HK$237,320 (HK$47,000 + USD24,400 @ 7.8). The husband decided to end the marriage and a petition for divorce on the ground of unreasonable behaviour was filed on 19th May 2003.

11. The wife filed an Acknowledgment of Service indicating that she would defend the divorce and seek ancillary relief. However, she failed to file an Answer on time. Subsequent applications to file the Answer out of time was refused by the court. Decree Nisi for divorce was granted on 10th December 2003 and the question of ancillary relief was adjourned with directions for the filing of affidavits showing each parties’ means and assets.

The Husband’s Case

12. In his opening address, counsel for the husband has made it clear that the allegation of the wife’s improper association is not directly relevant to the issue of ancillary relief. It is common ground that the conduct of either party has to be “obvious and gross” before the court will take that into account in deciding on ancillary relief applications : Wachtel v. Wachtel [1973] Fam 72 (CA).

13. The only issue concerning the extra-marital affair is the issue of credibility. According to the husband, the evidence of improper association is abundantly clear. By vigorously denying such a fact, it only shows that the wife has no intention to be frank. This should have cast doubts on her evidence concerning her financial position as well.

14. As far as the husband’s means is concerned, the details are listed out in his affidavit of means dated 3rd April 2004 (page 244 – 338 of the Trial Bundle). In summary, as a vice-president of a hotel, the husband receives a monthly salary of HK$137,150 with a housing allowance of HK$50,000 per month.

15. As to his gross assets, the husband is worth about $3,135,006 which mainly consists of his cash in bank, some unit trust investment and most importantly his retirement benefits to which the husband is only entitled when he leaves the employment. As the husband also has a liability on tax and legal fee payments of about $400,000, the net capital worth of the husband is about $2,731,133. I do not propose to go into the details of all these figures because I do not think they were being seriously challenged by the wife.

16. As to his expenses, they are listed out under paragraph 7 of the husband’s affidavit of means (P. 246 of the Trial Bundle) which amounts to the sum of HK$123,833, the details of which are as follows : -

Descriptions Current expenses
(HK$)
(1) Rent (covered by the housing allowance) 50,000
(2) Rates 2,500
(3) Utilities (electricity, gas, rates, telephone and water) 4,000
(4) Food and meals out of home 25,000
(5) Household expenses, maid and gardener 6,000
(6) Clothing and shoes 5,000
(7) Personal grooming (including haircut) 2,000
(8) Entertainment / presents 2,000
(9) Transport 5,000
(10) Holidays expenses 10,000
(11) Medical / Dental (80% covered by the employer Out of pocket HK$10,000 per annum) 833
(12) Club subscriptions (Pacific Club) 1,500
(13) Legal expenses of the divorce proceedings 5,000
(14) Miscellaneous (Laundries, newspapers, magazines, household maintenance and repair) 5,000

Total : 123,833
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17. On those expenses, counsel for the wife has only cross examined the husband on the reasonableness of 3 items, i.e. food and meals out of home ($25,000), transport ($5,000) and legal expenses ($5,000). I note that the husband is a man of high position in the hotel industry. I have no difficulty in accepting the outgoings on food and transport to be reasonable. As to the monthly legal costs of HK$5,000, the husband said he receives an interim bill each month from his solicitors. I do not think that is unreasonable either. However, this will stop after the conclusion of these proceedings and so I do not think it should be listed as a recurrent item. Overall speaking, I accept that the figure of HK$118,833 (after the deduction of HK$5,000 which is not a recurrent item) represents a fair estimate of the husband’s monthly expenses.

18. As to the resources of the wife, the husband asked the court to take into account of a sum of HK$2,283,320 which was made up of the following sums : -

(1) HK$1.5 million spent by the wife in February / March 2002 in purchasing luxury items in Europe.
(2) HK$237,320 worth of the husband’s personal items that the wife had removed from the matrimonial home in October 2002 without the consent of the husband.
(3) HK$312,000 (US$40,000) being proceeds of the sale of a Mercedes which was a gift from the husband.
(4) HK$234,000 (US$30,000) being the start up capital of a business in the Philippines given by the husband on 28th January 2002.

19. In his final submission, counsel for the husband submitted that the court should take into account the following facts before it reaches its final decision on the matter of ancillary relief : -

(1) This was a relatively short marriage of about 3 years and 3 months from October 1998 to January 2002. The husband contends that the intermittent living together between the period of 1993 and 1998 should not be counted as formal cohabitation between the parties.
(2) The wife has not been frank in the disclosure of her income and assets. The wife has failed to explain the movement of funds in her bank accounts, the whereabouts of the proceeds of sale of the Mercedes and the business set up capital given by the husband in 2002. The wife has also failed to explain adequately the evidence on the 2 purported loans from her mother and friend. In view of those failures, the husband invited
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