IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 6452 OF 1995
Coram: H.H. Judge Bruno Chan in Chambers
Date of Hearing: 7 & 8 June, 11, 12, 25 October 2000 and 15 January 2001
Date of Handing Down of Judgment: 21 February 2001
J U D G M E N T
1. This is the parties' application for ancillary relief against each other upon the dissolution of their long marriage. It is in fact the Respondent Husband's claims that I now need to deal with, as the Petitioner Wife has since abandoned her claims and is prepared to accept only a nominal sum of $1.00 per annum.
2. The parties were married on 13th September 1975 in Hong Kong. It was a childless marriage during which both had regularly worked, with the Wife then and still a medical doctor, while the Husband was initially an accountant and later a successful stockbroker with his own stock brokerage firm. The marriage unfortunately came to an end in 1995 when the Wife petitioned for divorce based on the Husband's unreasonable behaviour including violent temper, financial irresponsibility and extra-marital affair with another woman. In her petition the Wife also sought various ancillary relief including transfer of the parties' former matrimonial home at Kotewall Road, Hong Kong and an apartment in Northern Territory, Australia.
3. On 14th March 1996 the decree nisi of divorce was granted to the Wife on her petition uncontestedly, with the question of her application for ancillary relief adjourned to Chambers pending the filing of affidavit of means first by the Husband within 21 days, and the Wife 14 days thereafter. There was no application for ancillary relief by the Husband at that time. On 6th May 1996 the decree nisi was made absolute.
4. The Husband who was then acting in person filed his home-made affidavit of means on 15th May 1996 in which he deposed to be a member of the Hong Kong Stock Exchange with his own brokerage firm known as C Securities Company and that he was also a director and shareholder of 4 other trading and investment companies but all of which, he said, were either making losses or not trading at all. The only other substantial asset he claimed to have, i.e. the Kotewall Road property in Hong Kong was heavily mortgaged, whilst the Australian apartment which was also part of the Wife's original claims, was said to have never come into his possession as the Australian property developer had gone bankrupt and the purchase money had been returned to him. He claimed to have no other property or asset of significant value.
5. The Wife however was not satisfied that the Husband had fully disclosed his true financial position and on 11th September 1996 obtained an order requiring him to provide further and better particulars with supportive documents on or before 7th October 1996. However, no further steps were taken by either party in the proceedings until about some 9 months later. It turned out that shortly after the said order, a client of the Husband's C Securities Company complained to the Stock Exchange that the company had failed to pay about $1.9 millions due from the sale of shares belonged to that client. This led to an investigation by the Securities and Future Commission of the Husband and the Company and as a result its trading was suspended. On 13th November 1996 on the application by the Commission to the High Court, the Husband's assets were taken over by administrators appointed by the court, which was followed by a flurry a legal proceedings taken by his creditors and clients against him for monies due and owing to them, including the mortgagee bank of his Kotewall Road property and clients of his C Securities Company.
6. At about the same time the matter was also referred to the Commercial Crime Bureau and as a result the Husband was subsequently charged with 11 criminal offences of theft in connection with certain stocks and shares held for clients of C Securities company involving more than $12 millions in total value. On 26th September 1997 the Husband was convicted of the theft charges and sentenced to prison for 2 years and 8 months, and on 17th October 1997 a criminal bankruptcy order was also made against him.
7. Whilst he was in prison and with the assistance of legal aid, the Husband filed an affidavit on 20th November 1997 setting out his then predicament and indicating his wish to apply for a lump sum and monthly maintenance against the Wife in order to meet his future living expenses upon his release from prison. On 27th February 1998 the parties' respective applications came before Judge Gill who for obvious reason adjourned the hearing until after the Husband's release from prison.
8. On 19th June 1999 the Husband was released from prison and on 30th September 1999 he filed a new affidavit stating his inability to find employment or to meet his debts which amounted to $16.5 million in total. He repeated his wish to seek a lump sum and monthly maintenance from the Wife in order to meet his future living expenses. The parties have since filed further affidavits to up-date their financial situation and there have been extensive discoveries of documents on both sides. At the hearing both parties gave detailed evidence and were extensively cross-examined.
9. Although it is somewhat rare for a husband to claim maintenance against his wife, the law does not make any distinction between parties to a marriage as to their rights to apply for financial provisions in cases of divorce as provided in S. 4 of the Matrimonial Proceedings and Property Ordinance, Cap. 192, and in considering such application by the Husband in this case, I am obliged to consider all the circumstances of the case including the conduct of the parties and all those matters as set out in S. 7 of the same ordinance. I shall start with the Husband's financial situation.
10. The Husband is now almost 60 years old and claims to have been unable to find employment since his release from prison and is basically dependent on his younger sister who is a restaurant cashier earning only $7,900 per month. According to his latest affidavit of means filed on 20th November 1999, the Husband's attempts to find jobs in the financial related field such as estate agent, forex dealer, broker or insurance agents have all been unsuccessful because of his inability to obtain a practice licence due to his criminal record. He says he then turned his efforts to other fields such as salesman but again without any success despite his registration with the Labour Department because of his old age and poor health conditions. He has produced a medical report on him by a Dr Yiu Sing Nam dated 10th November 1999 which confirmed that he was suffering from high blood pressure, diabetes, renal calculus which required operation to prevent the situation from getting worse, and myopia.
11. To meet his living expenses, the Husband says he had to sell his only remaining valuable asset, i.e. his Rolex watch in late 1999 and relied on the refund of his bail money from his criminal trial and an one-off allowance from the Official Receiver, totalling $48,000 but all of which has since been exhausted. He says he then had to resort to borrowing from his friends and has run up further debts of about $30,000 to meet his daily needs and medical expenses. He says he is now in desperate situation as his sister's meagre income is simply insufficient to support both of them.
12. The Husband says he has since his release from prison been residing with his younger sister, initially at her rented cubicle of about 80 sq. ft. at Kei Lung Street, Kowloon where he could only sleep on the floor. As the room was too small and that the landlord would not allow more than 1 person to stay in it, they therefore later moved to another rented cubicle at the present address in North Point, which is a motel like accommodation with cooking facilities and is fully furnished. It costs $8,010 per month in rent but is inclusive of management fees and utilities such as electricity, gas and water.
13. The Husband puts his present monthly expenses at about $9,850 which includes his 1/2 share of the said rental expenses. He says although he has not been able to find employment, he is not sitting idle at home and has in fact often offered voluntary services to charitable organisations such as Oxfarm and World Vision.
14. The Wife however does not believe that the Husband has made full and frank disclosure of his financial means at all material times and asks the Court to draw inferences against him. She says that on 15th May 1996 when he filed his 1st Affidavit of Means, it was in response to her then application for ancillary relief against him and she believes that he had deliberately failed to make full and frank disclosure of his means in order to avoid her claims. She reasons that if all his business including C Securities Company were suffering heavy losses for years as alleged in his said affidavit, how could he manage to meet his then monthly expenses of more than $90,000, and if he had no money as alleged, why did he not apply for ancillary relief against her at that time ? She submits that the mere fact that he agreed under cross-examination at the hearing that in 1995 he did not find it necessary to make such application despite his alleged financial difficulties puts it beyond doubt that he was a man of means and that he had concealed his true financial position in his 1st affidavit.
15. In addition, the Wife argues, that there are ample evidence, both in the documents subsequently filed by the parties and in the cross-examination of the Husband...