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Kews v Nchc

Judgment Cited authorities 13 Cited in Precedent Map Related
Vincent
Judgment Date02 December 2011
Year2011
Judgement NumberCACV75/2011
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV75/2011 KEWS v. NCHC

CACV 75/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 75 OF 2011

(ON APPEAL FROM FCMC NO 13087 OF 2008)

____________

BETWEEN

KEWS
 Petitioner
(Respondent)
and
NCHC Respondent
(Appellant)

____________

Before : Hon Cheung CJHC, Cheung & Kwan JJA in Court

Date of Hearing : 16 November 2011

Date of Judgment : 2 December 2011

_______________

J U D G M E N T

_______________

Hon Cheung CJHC:

The appeal

1. This is an appeal by the respondent in the matrimonial proceedings below (“the Wife”) from the judgment and order of His Honour Judge C K Chan given on 19 October 2010. The Judge ordered the petitioner (“the Husband”) to pay periodical payments to the Wife on the first day of every month at the initial rate of HK$14,000 per month for the months of November and December 2010, and thereafter at the increased rate of HK$21,000 per month, until the death of either party or the re‑marriage of the Wife (whichever is earlier), or until the further order of the court. The Judge dismissed all other forms of ancillary relief applied for by the Wife. In particular, the Judge refused to adjourn the Wife’s claim for capital provision and dismissed the claim instead. The Judge’s order also stated that for the purpose of the Wife’s application under section 17A of the Matrimonial Causes Ordinance (Cap 179) (“the MCO”), the Court was satisfied that the financial provision made by the Husband for the Wife is reasonable and fair or the best that can be made in the circumstances of the case. The Judge also made an order nisi that there be no order as to costs including all costs previously reserved. After a further hearing, the Judge made absolute his costs order nisi.

2. Mr David Pilbrow SC, appearing for the Wife, contends that the periodical payments for maintenance awarded by the Judge are plainly too low in view of the Husband’s earning capacity and his family background. As regards the Judge’s dismissal of all other forms of ancillary relief, senior counsel argues that the Judge ought to have acceded to his application to adjourn the claim for capital provision, and he ought not to have made any order in relation to the claim for secured periodical payment. As a fallback position to his argument that the capital claim should have been adjourned, Mr Pilbrow argues, without any objection from the opposite side even though the point was not mentioned in the Supplementary Notice of Appeal, that in any event, the Judge was wrong to dismiss his client’s capital claim after rejecting his application for an adjournment. In this regard, counsel contends that the Judge failed to take into account sufficiently his client’s case on conduct.

Facts

3. Before turning to these contentions, it is necessary to give a brief account of the facts.

4. All sides agree that this is a particularly sad case. The parties are a relatively young couple without any children. The Husband is now aged 35 and the Wife aged 33. They met in the early 90s when both were still in their teens. The Husband comes from a prominent and wealthy family. He is one of four children. His father, now in his early seventies, is the grandson of the founder of a business empire. His mother is also in her early seventies. She is the daughter of one of the founders of a well known institution in Hong Kong, of which her brother is still the Chairman.

5. The Wife is one of two siblings. Her father is a medical doctor and has provided comfortably for his family. In the summer of 1996, the Wife, then a top student in an ESF school, intended to go to summer school at Harvard University to study English. The Husband, who was then an undergraduate student at that University, invited the Wife to share an apartment with him. She agreed. It is the Wife’s case, strongly denied by the Husband though, that he molested her and left her alone in the apartment for three days without any food. It is alleged that this incident caused her dramatic psychological trauma, which was, in turn, to have severe repercussions on both her psychiatric and physical well‑being.

6. Yet, despite this alleged incident, which the Wife’s parents only learnt about after the commencement of the present proceedings, the parties continued their friendship which later even developed into a romantic relationship. The Wife failed to meet a conditional offer made by Oxford for admission to study at that University, and went to London for her tertiary education. But she failed to sit for her final examinations, having been diagnosed with anxiety or depression. In the meantime, the Husband, having graduated from Harvard with a degree in economics, returned to Hong Kong and worked for a consulting firm for a short period of time at the salary of $24,000 per month. He left the company in 1999 to care for the Wife who falsely told him that she had got cancer.

7. In any event, in December 2000, the parties were married in London without the presence of their respective parents. Upon their return, their families accepted the fait accompli and formal celebrations of marriage – a blessing at St John’s Cathedral and a lavish reception at the Island Shangri‑la Ballroom ‑ were arranged on 18 August 2001. According to the evidence, the wedding reception was paid for by the Husband’s family. The Husband worked for another company in February 2001 but only for a short while. He left upon the request of the Wife as she did not like being alone. In November of the same year, the Wife became pregnant, but as she was undergoing a course of electro‑convulsive therapy, she was advised to abort the pregnancy. Indeed, starting with binge eating back in mid 90s, the Wife had sought treatments from various psychiatrists for panic attacks, insomnia and depression.

8. However, in October 2002, she was diagnosed to be suffering from a very rare gut disorder called “superior mesenteric artery syndrome”. This is a most uncommon disease where the artery coming out from the aorta supplying most parts of the gut impinges on the second part of the duodenum thus causing blockage to the normal passage of food from the stomach to the small bowel. This was to be the beginning of long years of nightmare, not only for the Wife but also for her family. In November 2002, the Wife underwent the first of what has to‑date been 10 operations during which a large part of her digestive system had to be removed, including the whole of her stomach. For a considerable period of time, she could not eat properly and had to rely on intravenous fluid and nutrient solutions. She also had constant severe abdominal pain and experienced great difficulties in passing stool. According to the trial judge, the Wife only weighed 70 pounds as at the time of trial. She was on heavy medication. She was homebound and a full time maid was employed to look after her. As at the time of trial, she was under the joint care of 2 experts in gastrointestinal diseases for her gut problem and another expert for her genital prolapse. All this was on top of her depression and other psychiatric problems. And needless to say, the ongoing matrimonial proceedings did not help her condition at all.

9. As the Judge noted, it is not in dispute that despite the deterioration of the Wife’s health during the marriage, the parties remained attached to each other. He was by her side most of the time whether she was seeking treatment in Hong Kong or overseas. However, in the latter part of 2006, the Husband told the Wife and her family that he needed a break and to re‑establish his career. He left the couple’s rented matrimonial home in Causeway Bay and returned to stay with his parents. The parties have remained separated ever since.

10. The Husband issued a petition for divorce on 3 November 2008 based on 2 years separation. A decree nisi was granted on 24 March 2009. On 19 February 2009, the Wife filed both the Form A (Notice of an Application for Ancillary Relief) and Form B (Notice of an Application Under Rule 56B).

11. It is plain from the evidence that whether before or after the separation in 2006, the Husband had only been engaged in gainful employment sporadically. As the Judge found, the couple received financial assistance from their respective families during the subsistence of the marriage, so much so that they were able to enjoy a reasonably high standard of living during marriage. The Judge also found that after the separation, the Husband continued to receive substantial support from his parents financially. Hence, he was in a position to give his entire income (of $15,000 per month) which he earned from a job he got since 24 February 2009 to the Wife as interim maintenance payment. The Judge observed that “there is no reason to believe that such support will not be continued” (para 86 of the judgment below).

12. As for the mounting medical and caring expenses of the Wife, again there is no dispute that before the separation in 2006, they had been funded by the respective families. However, after the separation, they were wholly borne by the Wife’s family, despite earlier promises by the Husband to the Wife and to her parents that he and his family would be responsible for the same. Such promises are, however, denied by the Husband.

13. As at the time of trial, a total sum of over $2.4 million has been incurred by the Wife’s parents on the medical treatment and maintenance of the Wife. That figure has not been seriously contested.

14. There is no serious controversy that after the separation, the Husband continued to enjoy a reasonably high standard of living. There is evidence to suggest that he has got a new girlfriend working in the entertainment business. But the Judge made no express finding on this. In any event, according to the documents...

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