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K v W

Judgment Cited authorities 12 Cited in Precedent Map Related
Vincent
Judgment Date07 May 2010
Year2010
Judgement NumberFCMC5641/2001
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC005641A/2001 K v. W

FCMC 5641/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 5641 OF 2001

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BETWEEN
K Petitioner
and
W Respondent
________________________

Before : HH Judge Bruno Chan in Chambers

Date of Hearing : 8 – 12 June, 10 – 14 August, 16 – 17 September, 8 – 9 December 2009, 20 January, 25 February and 15 March 2010.

Date of Judgment : 7 May 2010.

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J U D G M E N T

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1. This is the parties’ contested application for ancillary relief upon the dissolution of their 20 plus years marriage. Their main dispute essentially concerns how their assets, consisting basically of 11 real properties located mostly in Hong Kong but also in the US, Australia and China with a total value in excess of HK$32 million, should be divided between them, with the Husband alleging that the Wife has already dissipated their 2 elderly home businesses and taken away substantial part of the family funds, the lost value of which should be “added back” into the balance sheet of her assets and hence he should be given a bigger share of the remaining real properties, while the Wife also seeks a bigger share thereof on the basis that she had made much more contributions towards the marriage and their assets. These contentions of the parties basically constituted the main issues before me.

2. As will be apparent below in this judgment, the dispositions by the Wife of the elderly home businesses between late 2000 and 2001 had triggered off an application by the Husband back in May 2002 for avoidance thereof under section 17 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“Section 17 Application”), which led to some of the most acrimonious and protracted litigations that this court has ever witnessed, which perhaps explain why it had taken so long for the parties to come to this final stage of their divorce proceedings.

3. While in the earlier proceedings both parties were represented by counsel, the Wife had since 2006 started to act in person, but had with the leave of this court the assistance of a lady friend as a McKenzie friend to assist her in this trial, although it was not denied that she had also been from time to time receiving legal advice on the side.

4. It was also agreed between the parties that since all the Husband’s affirmations were in English while the Wife’s were in Chinese in this application, with a view to save time and costs and again with the permission of this court the trial was conducted in Chinese, with assistance to the Wife by the court’s interpreter in case of any difficulty which she might have in reading the Husband’s affirmations and any other documents in English, although it has to be said that she does have a good working knowledge of that language, having attended college courses in the U.S.

5. I should also mention that while the trial bundles numbered 14 in total with more than 3000 pages of pleadings and documents, many of which were however never referred to during the trial and mainly came from the Wife, and of those with no or little probative value or relevancy to the matters before me, I do not propose to refer to them in this judgment. .

The Background Facts

6. The Husband, who is now aged almost 70, was born in July 1940 in Indonesia where his family ran a business selling electrical appliances. He went to China in 1960 to study music at Beijing University, and upon graduation with a decree in music he stayed to work in China where he met his first wife and married her in 1968 with 2 daughters born out of that marriage. Sadly his wife died of cancer in 1976 and he had to raise the daughters at the same time working full-time in a factory.

7. The Wife, who is much younger at 57, was born in November 1953 in Guangzhou, China, where she was studying to become a nurse when she first met the Husband in 1977. On 21st December of the same year the parties married in Guangzhou where they made their home together with the 2 daughters from the Husband’s first marriage, FC and YC who were then only 4 and 8 years old.

8. Shortly after the marriage the Husband was allowed to settle in Hong Kong, and in 1980 he applied for the Wife and his 2 daughters to join him in Hong Kong where the Wife gave birth to 2 daughters of her own in quick succession, E on 29th June 1980, and J on 20th September 1981, but both of whom while still in their infancy were sent to China to be cared for by the Wife’s mother until they were older, as both parties had to work and could only manage to take care of the 2 elder daughters of the Husband for the time being in Hong Kong.

9. In November 1982 the parties purchased their first property in Hong Kong at Chung Hing Building, Quarry Bay as their home for HK$193,000 with the assistance of a bank mortgage. With mortgage payments to meet and 4 small children to raise, they struggled to make their living with the Husband working first as a building security guard and later in a factory during the day and giving music/singing lessons in the evening, while the Wife also held down several jobs as a nurse on both full-time and part-time basis in various hospitals and clinics.

10. In 1987 they started their first elderly home business known as SKW Care and Nursing Centre, later changed to ST Home for the Aged (“ST”) which provided the main source of income for the family and, according to the Husband, their various investments in properties in the early 1990s as well, including their former matrimonial home at Taikoo Shing. It was however the Wife’s case that most of the properties were in fact funded by her own moneys and investments made in China, thus forming the first of many issues between the parties.

11. In 1996 a second elderly home known as RG Home for the Elderly (“RG”) was set up with the Wife and her brother registered as partners in its business registration but was found in my said judgment to be owned in fact by the parties in the same way as ST.

12. In the early 1990s the Husband applied for emigration to U.S. for the family and after obtaining residency there he returned to stay in Hong Kong. In 1995 the parties’ own daughters E and J went to further their studies in California, and the Wife went to join them in 1997 and bought 2 properties in San Francisco, one as their home and the other let out for rental income, while the Husband remained in Hong Kong to run their elderly home business, the extents of which, as will be apparent later in the judgment, also formed part of the major dispute between the parties.

13. In early 2000 the Wife returned to Hong Kong to take control of the 2 businesses after receiving news of the Husband’s affair with one of the staff. Although he denied the affair, their relationship started to unravel when the Wife kept the Husband out of the businesses and allegedly removed more than HK$8.7 million from their joint bank accounts, part of which she admitted of using to purchase her own residence while in Hong Kong at the City Garden in North Point.

14. As a result the Husband petitioned for divorce in these proceedings in September 2000 against the Wife based on her unreasonable behaviour and for general ancillary relief. The petition was initially contested by the Wife but eventually the parties were able to agree to a consensus divorce, and the decree nisi was subsequently pronounced in June 2002 and the decree absolute issued later in the same year.

15. Meanwhile in April 2002 when the Husband applied for interim maintenance against the Wife after he was prevented from drawing any funds from the business accounts for his living expenses, as he used to do so in the past, it was from the Wife’s affirmation in response that he first learnt of her transfer of RG to her brother back in December 2000, and ST to E and J, who were then still students in U.S., in June 2001, at nil consideration for both transfers, and had appointed one of their friends JY as the business manager. The businesses were then each incorporated into a limited company bearing the same name as before.

16. The Husband therefore took out the said Section 17 Application to set aside those dispositions on the basis that they were made with the intention to defeat his ancillary relief claims. The Wife denied any such intention but gave various reasons for the dispositions, in the case of RG that the Husband was disturbing the business by inciting its former employees to commence proceedings against the company and launching various complaints to Labour Department and Social Welfare Department, thereby causing the residents to leave and the business was therefore not viable, and that she found it physically and mentally difficult to carry on the business, but as she was unable to find a buyer, she therefore transferred the business to her brother so that he could close it down on her behalf.

17. As for ST, she gave the same reason of physically and mentally difficult for her to carry on with the business, and that the Husband was sabotaging the business by taking money from its business accounts, and so she transferred it to her 2 daughters also for them to close it down.

18. As mentioned above, that application was heatedly contested, during which the Wife even involved the police with allegations that the Husband had falsified documents for use in the proceedings, which led to him subsequently being charged for using a false affirmation, with that trial pending the conclusion of these proceedings. Meanwhile the trial of the Section 17 Application lasted some 27 days between January and July 2003 and involved a considerable number of witnesses including former employees as well as the 2...

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