IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
SUIT NO. 2250 OF 2000
Coram: H.H. Judge Bruno Chan in Chambers
Date of Hearing: 18 - 21 February, 3 - 4 April & 21 June 2002
Date of Handing Down of Judgment: 2 September 2002
J U D G M E N T
1. This is the Petitioner Wife's application for ancillary relief against the Respondent Husband, specifically for a substantive lump sum and a share in his landed properties mainly of agricultural and farm lands in the New Territories.
2. The facts of the case are unusual.
3. The Husband's grandfather, TCF, was a wealthy man and one of the biggest land owners in the New Territories. He had 3 sons namely TPK, TKW and TKC, the Husband's natural father. In 1931 TCF distributed part of his assets to his 3 sons. However as TKW had already died at that time, his share was therefore held by the TKW Tso. As TKW was without any issue, under the direction of TCF, the Husband who was then only a small child of 2 years of age, was adopted by TKW's widow WS in order that the male lineage of TKW could be assured. The Husband therefore became the sole heir to the TKW Tso but while he was a minor, his natural father TKC was appointed the manager of the Tso until he died in 1953.
4. In the late 1940s or early 1950s, when the grandfather TCF was in his 90s and not in good health, he was keen that the male line of the TKW Tso descendants should be assured before his death by arranging with WS for the parties to marry each other. The wedding took place on 17th January 1951 in accordance with the Chinese customary rites and ceremonies arranged by the heads of the respective families some 2 years before, when the Husband was 19 and the Wife only 15, whose consents to the marriage were not sought, as most customary marriages were in those days.
5. About 1 year prior to the marriage, the Husband formed a relationship with a girl by the name of SF and started living with her. It is common ground that the Husband and Wife had only met on 3 occasions before the wedding. On the 1st 2 occasions the Husband had tea with the Wife's father and barely spoke to her. On the 3rd occasion the Husband brought along SF to meet the Wife in a hotel and disclosed to her of their relationship. Afterwards the Wife told her father of SF, but the marriage nevertheless went ahead.
6. After the marriage the parties lived with WS, but the Husband was seldom at home, staying most of the time instead with SF. 3 months later he brought SF to meet WS and later took her as his concubine when they would live together with TCF's widow in Ha Chuen, while the Wife was to continue living with WS. Despite this 2 children were born of the parties' marriage, a son in 1952 and a daughter in 1954 to whom the Husband had never assumed any parental role. The Wife and the children were all along being supported by WS with the income from TKW Tso.
7. After the death of TCF in 1952, the remainder of his estate took the form of the "Six Entities" which distributed income and capital to his male descendants including the TKW Tso. One year later the Husband's father TKC also died, leaving his estate to his 4 male sons including the Husband. In 1955 the Husband separated from SF and commenced living with Madam Y by whom he has 4 children.
8. Upon the death of TKC, WS was appointed the manager of TKW Tso and for the first few years she continued to distribute the Tso's income to the Husband until about 1955 when she decided to retain the whole of the income generated by the Tso as well as its share of the income generated by the Six Entities, which upset the Husband and caused a rift between them, which he claimed was the result of the Wife having spoken against him and SF in the past.
9. Their relationship deteriorated further when WS allowed the Wife to be appointed an additional manager of the Tso in 1968, with the conflict coming to head in 1977 when the parties' son TTC was also appointed a manager. In 1978 the Husband instituted legal proceedings in the High Court against WS, the Wife and their son TTC for a declaration that he was the sole legal successor to the Tso and that their respective appointments as managers were null and void. The case was eventually settled in 1983 with 40% of the Tso's assets given to the Husband and the remaining 60% to the said TTC. It was also part of the settlement that both WS and the Wife were to cease being the Tso's managers. They were since maintained by TTC. WS died later in 1996.
10. In January 2000 the Wife with the assistance of legal aid applied to this Court for a declaration that her marriage to the Husband on 17th January 1951 was a subsisting customary or validated modern marriage under the provisions of the Marriage Reform Ordinance, Cap 178. On 6th March 2000 in the absence of the Husband who was served by substituted service care of his elder brother's address, the Wife was granted the declaration accordingly.
11. On 14th March 2000 the Wife instituted the present proceedings for divorce against the Husband on the ground of his desertion since 1956, and for general ancillary relief and costs.
12. On 20th March 2000 the Wife on ex-parte basis applied and obtained an injunction restraining the Husband from disposing any of his assets on the basis that she feared that he would dispose of his assets once he found out about her claims for ancillary relief against him in her petition.
13. At the return inter-partes hearing of the Wife's application, the Husband denied that he had any intention to dispose of his assets which include more than $30 millions of cash in the bank, plus stocks and shares and interests in numerous lots of lands in the New Territories, and that he was willing to give an undertaking not to dispose of his assets pending the determination of the proceedings, which undertaking was accepted by the Court and the injunction was therefore discharged.
14. The parties' divorce dispute was subsequently resolved by the Wife's amending her petition to one based on separation since 1956 with the decree nisi of divorce granted on 12th September 2000. The question of ancillary relief was adjourned to Chambers for argument, with the usual direction for the filing of affidavit of means by the parties. At the trial both parties gave oral evidence and were cross-examined extensively.
The Wife's Case
15. The Wife says that she saw very little of the Husband after their marriage as he rarely returned home and later in 1956 deserted her and the children altogether. She says he has never fulfilled his duties either as a husband or a father throughout their marriage, financially or otherwise. On the other hand, she has always fulfilled her duties as a wife, a daughter-in-law to both his father and WS, and as a mother to their 2 children who were practically brought up all by herself without any help from the Husband who would indulge in gambling and womanizing, and when he lost all his money, he then started the High Court action for the Tso's assets despite the fact that he had already succeeded to his father's estate. She and the children were all along supported by WS with income of the TKW Tso until 1983 when her entitlement ceased with the settlement of the said High Court case, as a result she had considered applying to court for maintenance from the Husband, after he had refused her requests for maintenance and tried to avoid her, but later decided not to in deference to WS's wishes who was not in favour of any litigation between the parties.
16. From thence on the Wife says she has been maintained by her children in particularly her son with the income from his business and the sale proceeds of his share of the Tso's assets. Over the years she says the children have been very generous to her to the extent that she was at one time able to spend up to $30,000 to $50,000 per month playing mahjong or gambling on the Star Cruises and to take various pleasure trips to Southeast Asia and China.
17. Unfortunately in about 1999 she was told by her son that he could no longer shoulder the burden of maintaining her due to his business failures and that the source of income of the Tso has dried up since it no longer holds any more land. As she is now old and not in good health, and as she is without any income or assets of significant value other than an old and crummy village house in Yuen Long, she believes that the Husband should start facing up to his responsibility by providing her a lump sum to meet her future living expenses and to enable her to purchase a decent flat in Shatin so that she can live near her daughter, as well as a share in his landed properties as recognition of her substantial contributions to their lengthly marriage.
The Husband's Case
18. The Husband says that he did tell the Wife at their meeting prior to the marriage that he would continue to cohabit with his girlfriend SF after their marriage, and that she must either accept this relationship or else he would call off their wedding, to which the Wife agreed and their marriage therefore went ahead. However later when he was going to marry SF as a concubine, the Wife did not keep her promise and started to speak ill against SF, as a result he was upset and decided to stay away from the Wife and their matrimonial home.
19. In or about 1954 the Husband says he and the Wife formed the opinion that their marriage was at an end and agreed to live separate from each other. He agrees that he had never during the marriage paid any maintenance for the Wife or their children as they were all along being maintained by the income of TKW Tso.
20. Despite being made a successor of the TKW Tso...