FCDJ 8388 of 1993
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 8388 OF 1993
Coram : Deputy District Judge H F Woo in Court
Date of Hearing : 11th –13th July 2005, 26th July 2005 and 19th October 2005
Date of Delivery of Judgment : 19th December 2005
J U D G M E N T
I. Applications in Question
There are 3 applications before me :-
(a) Judgment Summons issued by the Respondent on 8th March 2004 and 11th July 2005 against the Petitioner (to be examined on oath as to his means he has or has had since the date of the Order made herein by Deputy Judge Winston Leung on 18th August 2000 (“the Maintenance Order”)) for payment of maintenance and for showing cause why the Petitioner should not be committed to prison for such default;
(b) Application by the Petitioner on 26th March 2004 for variation of the Maintenance Order of US$4,500 payable to his exwife (“the Respondent”) and his daughter (“G”); and
(c) Application by the Respondent for variation of G’s maintenance upwards on 21st July 2004. However, such Application had been withdrawn before the hearing commenced.
1. The Petitioner and the Respondent were married in Hong Kong on 23rd May 1981. They have one daughter, named G who was born on 13th September 1983. She is now 22 years old. In 1990, the Respondent and G immigrated to the United States of America and they are now citizens there. Between 1990 and 1993, the Petitioner visited the Respondent in U.S.A. and in July 1993, the parties decided to live separately and apart from each other. On 20th December 1993, the Petitioner petitioned for divorce on the ground of five year separation since 17th June 1988. The Respondent filed an Answer denying the separation.
2. By consent, it was ordered on 20th October 1995 that the Petitioner do pay a monthly sum of US$3,500 to the Respondent and G as maintenance pending suit.
3. On 23rd November 1995, a property situated at Hong Kong (“the Property”) was purchased under the name of a company called GTHL (“GT”) for a consideration of HK$3,000,000. The shareholding of GT is one share held by the Petitioner and 9,999 shares by his present wife (then his girlfriend), WWF (“R”). The size of the Property was about 560 square feet and was later used as their matrimonial home.
4. The divorce proceedings were withheld for a while, until the said petition was amended to the ground of divorce based on 2 year separation without consent in 1997.
5. The Petitioner in 1997 was in arrears of maintenance payments, judgment summons and application to vary the maintenance order were issued by the respective parties. After hearing, the interim order was retained as it was and the Petitioner was ordered to make up the arrears.
6. On 9th February 1999 the Decree Nisi was pronounced.
7. Upon an application by the Respondent for ancillary relief in the form of periodical payments and lump sum payment, the Petitioner declared in the hearing of the relevant application in 2000 that his average income was about HK$30,000. He claimed that his (then) girlfriend who is now his wife R was very supportive of him both financially or otherwise, and he has never contributed any money to the Property owned by GT of which they were both directors and shareholders. The monthly repayment made by R of the Property was about $20,615. The evidence did not support that the Petitioner has contributed 50% of the mortgage of the Property. Deputy Judge Winston Leung delivering his judgement on 18th August 2000 (“2000 Judgment”) found, inter alia, that :-
(i) The Respondent had failed to prove hidden fund or undisclosed income of the Petitioner. The sources of income came only from SC Clinic and TW Medical Centre. Having taken a broadbrush approach, $50,100 was accepted to be the Petitioner’s average income. The Petitioner should be very generous to have offered to pay US$4,500 (HK$35,100);
(ii) Even if the Petitioner’s gross income as suggested by the Respondent were $63,000 per month, HK$35,100 is still a generous maintenance in the circumstances; and
(iii) US$4,500 per month is all the Petitioner can afford to pay to the Respondent and their daughter, G.
8. The Property was not taken into consideration for various reasons. It was ordered in the Maintenance Order by Deputy Judge Leung, inter alia, that as from 1st September 2000 the Petitioner is to pay the Respondent periodical payment in the sum of US$2,500 per month as maintenance for G until she attains the age of 18 or until she finishes her full-time education, whichever is later and US$2,000 per month as maintenance for the Respondent (“2000 Maintenance Order”).
9. The Decree Absolute was granted on 14th September 2000.
10. On 7th November 2000 the Petitioner married R.
11. It is not disputed that the maintenance of US$2,500 per month for G has not taken into consideration her university school fees. When G was due to be admitted to the university, the Respondent asked the Petitioner to increase the maintenance to provide the school fees but such was refused. As a result, the Respondent claimed that G had to withdraw her admission into the B University a private university and was forced to move to University of CD (“UCD”) a states subsidised university in 2001.
12. R used to be a cabin crew working for JA since 1986. She retired from her employment in May 2002. According to the Petitioner, R has not worked since then except helping the Petitioner at his SC Clinic for a while. In the beginning of 2003, R became pregnant and she gave birth to a boy, named W (“W”) on 25th November 2003.
13. Since the beginning of 2003, the Petitioner has in breach of the Maintenance Order failed to make full payment of the monthly maintenance of US$4,500 for the Respondent and G. As from January 2004, the Petitioner ceased all payments. Up to July 2005, the total amount outstanding was US$104,000. A breakdown of the amount paid and outstanding is set out in “Exhibit R1” by the Respondent and was accepted by the Petitioner to be accurate.
14. On 25th February 2005, the Petitioner entered into a Deed of Separation with R. The Petitioner claimed that since February, he has lived separately and apart from R but would go home from time to time. Under the said Deed, the Petitioner offered to pay R HK$20,000 per month as periodical payment for R and W commencing from 1st March 2005.
15. On 17th June 2005, the Petitioner petitioned for his own bankruptcy. In the Statement of Affairs annexed to the Debtor’s Bankruptcy Petition, the Petitioner claimed to be indebted to Inland Revenue Department for HK$334,659. On 2nd August 2005, he was declared bankrupt. There was no joinder of the Official Receiver, nor any issue raised.
III. The Laws
1. The Law on Enforcement of Maintenance Orders
The enforcement of orders is by way of Judgement Summons issued pursuant to Rule 87 of the Matrimonial Causes Rules (“MCR”). Under Rule 87 (5) of MCR, it was provided that “on the hearing of the Judgment Summons, the Judge may make an order for commitment of the Judgment Debtor if he fails to show cause why he should not be committed to prison”. In other words, if the Court is satisfied beyond all reasonable doubt that the Judgment Debtor, namely the Petitioner in this case, has failed to give any good reason why he has not complied with the Court Order, the Court may commit him to prison.
2. The Law on Variation of Maintenance Orders
The Petitioner’s application for variation of the Maintenance Order was made under Section 11 of the Matrimonial Proceedings and Property Ordinance (“MPPO”). Pursuant to Section 11 (1) and (2) of MPPO, the Court has power to vary or discharge a periodical payment order made in favour of the wife under Section 4 (1) (a) or in favour of the child under Section 5 (2) (a). Section 11 (7) of MPPO provided that “in exercising the power conferred by this Section, the Court shall have regard to all circumstances of the case including any changes in any of the matters to which the Court was required to have regard when making the Order to which the application relates …… ”.
IV. The Issues
1. In respect of the variation downwards of the Maintenance Order, the issues are as follows : -
(i) Whether there should be any variation downwards of the Maintenance Order for the Respondent and G.
(ii) If yes, the amount to be reduced.
(iii) The date from which the said reduction should take place.
2. In respect of the Judgment Summons, the issues are as follows : -
(i) Whether the Petitioner has the ability to pay in full of the Maintenance Order.
(ii) If not, whether he is able to pay in part of the Maintenance Order during the period of divorce.
(iii) If yes, whether the non-payment is deliberate and whether the Petitioner should be committed to prison for acting in breach of the Maintenance Order.
V. The Petitioner’s case
1. The Petitioner claims that he is unable to pay maintenance pursuant to the Maintenance Order on the following grounds :-
1.1 Substantial reduction of his income from his practice;
1.2 Rowena has retired from her employment as a cabin crew and has no income, and therefore, she is not able to assist him in making payment of the maintenance; and
1.3 His expenses increased as a result of the birth of W.
2. He is heavily indebted to the Inland Revenue for additional income tax. As a result, he has petitioned for bankruptcy.
3. He claimed that he did not know that he had to pay maintenance pursuant to the Maintenance Order after he had made application for variation of maintenance downwards.
4. The Petitioner accepted that the Respondent has no income and earning capacity...