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K v K

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date29 February 2008
Year2008
Judgement NumberFCMC6100/2006
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC006100/2006 K v. K

FCMC No. 6100/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 6100 OF 2006

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BETWEEN
K Petitioner
and
K Respondent

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

Date of Hearing: 29th and 31st January 2008

Date of Handing Down of Written Decision: 29th February 2008

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DECISION

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1. This is the application of the Respondent wife (“Wife”) against the Petitioner husband (“Husband”) by summons dated 12th January 2008 for an order that the Husband do pay her maintenance pending suit (“MPS”) at the rate of:

i) HK$120,000 per month for herself; and

ii) HK$30,000 per month for the benefit of one of the children of the family, J2,

effective from the date of the Petition, namely, 25th May 2006, until the date of decree absolute and payment be made within 7 days of the order. She also asked to factor a monthly sum of HK$50,000 in the MPS to cover her ongoing legal expenses. The Husband opposed the application, offering a monthly sum of $33,000.

Background

2. The parties were married on 24th August 1983. The Husband, then aged 25, was a businessman working mainly for the family business. The Wife, then aged 28, has since been a housewife looking after the family and the children.

3. There are two children of the marriage. They are J1, a girl just turned 20 and J2, a boy now aged 18. J1 is now studying in Hawaii at the Hawaii Pacific University. J2 is now studying in his last year in America International School in Hong Kong. He is now living with the Wife at the matrimonial home in Shiu Fai Terrace. This property is owned by a family company of which the paternal family members are shareholders and the Husband and his father are the only two directors.

4. After about 20 years the parties split up. According to the Wife, she discovered that the Husband had extra-marital affairs with other women in 2003. Despite the Husband’s promise to stop such affair, she said the Husband failed to do so and the parties eventually separated in June 2005. The Husband said in the Petition that they have separated since April 2004.

5. The petition for divorce was issued by the Husband on 25th May 2006 based on the fact of 2 years separation. The decree nisi was granted on 26th February 2007.

The Brief Facts from Affidavits/Affirmations

6. In support of the Wife’s application, she filed and served two narrative affidavits respectively on 12th and 28th January 2008 (referred to as the “Wife’s 1st Affidavit” and “Wife’s 3rd Affidavit” here, the 2nd having been filed for her application for discovery of documents). The Husband filed and served his on 28th and 31st January 2008 (referred to as the “Husband’s 1st Affidavit” and “Husband’s 2nd Affidavit” respectively). It should be noted that the parties have also exchanged Form E shortly after the issue of the petition. The Wife’s Form E was dated 28th September 2006 and the Husband’s a day before, i.e. 27th day 2006. Questionnaires have been exchanged and answers filed. The parties also relied on these answers and documents for the present MPS application.

7. The Wife’s case is that she has been a housewife since they got married. The Husband has since been the sole breadwinner for the family. He is the only son of a very wealthy family and is himself a very successful businessman managing his family business in US, Canada and Hong Kong. After marriage, they moved to the present matrimonial home, which is a 4-bedroom flat of about 2,800 square feet and owned by a family company. There appears to be some discrepancy in the size of the accommodation. In the Husband’s 1st Affidavit he described the flat is only 2,200 sq. ft in size. However, in his Form E he said his residence is 2,500 sq. ft while the Wife described it as 2,700 sq. ft. in hers. In any event by Hong Kong standard this is a spacious accommodation located in a prestigious location. She said that their family enjoyed a high standard of living. Although in the Form E the Husband claims that he has a monthly income of HK$280,000, given the family’s lifestyle, such as long hauls flight in first or business class to Europe or North America and sea cruises trips annually for the past few years, she believes the Husband’s income greatly in excess of this amount. Besides, there are substantial landed properties held by the Husband and/or family companies in Hong Kong and the North America. These properties, according to the Wife, are held and controlled through a complicated system of offshore companies and are worth hundred of millions dollars. One of the examples is that according to the annual report of a family company K & K, the assets held by this company is worth about 40 million Canadian dollars.

8. Before the turning sour of their relationship in or about 2004, the Wife said she had unlimited use of 4 supplemental credit cards. In 2004, the Husband has stopped her use of 2 supplemental credit cards, namely credit cards with the American Express and Citibank (respectively the “AE card” and “Citibank card”). In September 2005, her use of the remaining 2 credit cards, namely cards issued by the Overseas United Bank Limited (“OUB card”) and Hang Seng Bank in co-operation with the Jockey Club (“HS JC card”) were also withdrawn.

9. Furthermore, before the surface of their marital problem, the Wife can enjoy membership of prestigious clubs. Her use of the Hong Kong Jockey Club (“HKJC”) was suspended in September 2005. It is admitted by the Husband that as from January 2008 the Wife can no longer sign her bills at the Hong Kong Country Club (“HKCC”). That means that she can no longer enjoy any club facilities which she used to enjoy.

10. As regards maintenance, she also alleged that the Husband used to pay her $50,000 monthly (on the top of unlimited credit card spending, club facilities, chauffer service and luxurious trips). The money is deposited into the Wife’s account with the Hang Seng Bank every month. However, this monthly sum was reduced to HK$30,000 in August 2005. It was further reduced to HK$20,000 the next month (i.e. September 2005) when her membership with the HKJC and use of the remaining two credit cards were suspended. In the Wife’s 1st Affidavit, she said that the Husband would like to deduct from her $20,000 for her spending in December 2007 at HKCC, leaving only a sum of $6,000 odd for her for January 2008. This deduction was withdrawn after protest from the Wife through her solicitors. The Husband’s explanation is that it was probably a misunderstanding on the part of his secretary. However, it is not in dispute that she has been denied use of the HKCC as from January 2008. Her daughter J1, on the other hand, can sign at the HKCC.

11. The Wife also complains that she was denied use of chauffer and the 2 luxury cars of the family but is only provided with a modest Nissan. The domestic helpers serving the family were reduced from 2 to 1. She was also denied the enjoyment of a family house in Toronto, Canada, which is about 2 acres in size, and another house in San Francisco, which is with 4 acres of land. These houses are used to be enjoyed by the family before their breakup. After June 2005, the Husband did not paid for her trips any more.

12. The Wife said J2 was arranged to study in a boarding school between 2004 and 2006 in Canada. However, J2 was unhappy to be separated from the family and his school result in Canada was unsatisfactory. He was required to repeat Grade 9. J2 wanted to return to Hong Kong but the Husband refused. In early 2006 J1 returned to Hong Kong to further her study because she developed serious allergy to the cold weather in Canada. The Wife said that seeing how unhappy J2 was then and with the consent of the Husband’s mother, she managed to arrange for J2 to study in Hong Kong as from September 2006. This made the Husband extremely angry. He refused to make regular contribution since August 2006 to J2’s expenses for which she became responsible. Although as from December 2006 the Husband has started paying J2 pocket money, he still failed to pay for the tuition fee and other expenses regularly. She claimed that she has incurred at least a sum of HK$102,624 for J2’s tuition fee and his school expenses during 2006 and 2007. Receipts were exhibited to her 1st affidavit. She wanted this sum back from the Husband. She said that the irregular contributions of the Husband to J2 put her in great financial stress and burden.

13. The Husband agreed in his Affidavit to repay the Wife the amount referred to in the preceding paragraph. At the hearing he undertook to repay the same before the Lunar New Year of 2008.

14. As a result of the decrease in maintenance from the Husband, the Wife said that she has to live on her own savings which drops from about 1.2 million to about 0.3 million. Miss Remedios for the Wife has submitted that what the Husband has done after the break down is totally unfair, unjust and discriminating against the Wife. It is because while the Husband can have lavish spending on his clothing and meals and J1 can enjoy unlimited credit card and club facilities, the Wife is only provided with $20,000 a month. It is no more than a squeeze on the Wife by the Husband with a view to set a new but lower pre-breakup standard of living in order to defeat her maintenance claim. Since the Wife is now 53 and has suffered from naso-pharyngeal cancer in 1991 and anxiety in 1997, very likely she cannot be able to find a job to finance her pre-break off standard of living. The Wife therefore would like to claim against the Husband for interim maintenance, pending final disposal of her ancillary relief claims, and hopefully in the...

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