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Lsm v Cmp

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date19 September 2014
Subject MatterMatrimonial Causes
Judgement NumberFCMC7040/2011
CourtFamily Court (Hong Kong)
FCMC7040/2011 LSM v. CMP

FCMC 7040 / 2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7040 OF 2011

----------------------------

BETWEEN
LSM Petitioner

and
CMP Respondent

----------------------------

Coram: Deputy District Judge I. Wong in Chambers (Not Open to Public)
Dates of Hearing: 13 – 15, 19 – 20, 22, 26 November 2013, 3 – 4 April 2014, 13 and 21 May 2014
Date of Handing Down Judgment: 19 September 2014

__________________

J U D G M E N T
(Ancillary Relief)

__________________

1. This is a trial on the ancillary relief of an undoubtedly long marriage. Long as it is not only the marriage but also the length of separation.

2. The petitioner is the wife (“W”); she is now 68 years old. The respondent husband (“H”) is now 73. The couple was married in Hong Kong in 1965 by having gone through a traditional Chinese marriage ceremony. They underwent a formal registration in October 1984 in order to facilitate their second daughter (“YL”)’s application for further education in the United States.

3. Five children were born out of this union:-

1. YY, a daughter now aged 48.

2. YL, a daughter, now aged 47. She has been living in the United States since departing Hong Kong for education in about 1986;

3. YS, a son, now aged 45. He is also living in the United States;

4. YK, a son, now aged 43, is in Hong Kong. He is married, living apart from the parties and is working as a security guard; and

5. TK, a son, now aged 24, is attending university in California.

4. On 30 May 2011, W petitioned for divorce on the ground of 2 years’ separation. She pleads that the parties has separated since September 1994.

5. Initially, there was some dispute over when the parties started to separate from each other. H’s version was that it was at a much later time, in about 2001, that he realized the parties had separated. Be that as it may, H now accepts that for the purpose of the present proceedings the parties have separated as from 1994.

6. As H did not file any Form 4 contesting the petition, decree nisi was granted on 26 November 2012.

7. Both parties have issued Notice of Application for Ancillary Relief. In addition, H has also filed an Application under s 17A of the Matrimonial Causes Ordinance, Cap 179 for the court to consider his financial position after the dissolution of the marriage.

8. Notwithstanding that W has her own application for ancillary relief, it has become clear that the trial is essentially on H’s application, for the reason that he is now on CSSA and is obviously impecunious. W also applies for maintenance for the youngest son TK to be paid by H, but clearly the application is premised on H being successful in getting a share of her assets from which H would then be in a position to maintain TK. As I will explain below, I believe W’s application is misconceived.

9. To start with, I need to highlight two unusual features in this case.

10. The first is the length of both the marriage and the separation as I have mentioned above.

11. The second is, whilst H is undoubtedly penniless, W puts forward an even bolder claim that she is in fact insolvent. In this respect, it is of note that both parties are legally aided in the present proceedings.

12. It is rather unfortunate that the factual disputes spread over a period of more than three decades; and unusual as it is, the factual matrix of this case is rather complicated. On this note, I bear in mind Ribeiro PJ’s guidance in LKW v DD (2010) 13 HKCFAR at paras 62-63 that there should be rejection of minute retrospective investigations:-

“62. The fourth principle is that the court should not countenance any attempt to engage in costly and often futile retrospective investigations of the failed marriage which tend to deplete the parties’ (and the courts’) resources and to increase antagonism and discourage settlement.

63. Such attempts have been encountered in various contexts, including disputes over the extent of a party’s assets; over the contribution made to the welfare of the family; over the parties’ conduct; over claims to be compensated for having suffered some disadvantage, and so forth.”

Some Salient Facts

13. The following are the salient facts of this case.

14. W is an indigenous villager of the L Village in the New Territories, but H is not. As can be seen below, the fact that she is an indigenous villager has some bearings on the dispute of this case.

15. It is obvious that both parties received little education and had little skill. In about 1965, H partnered with 2 friends to start a business of construction equipment rentals. In 1977, ie some 12 years into the marriage, H withdrew from the partnership and started his own company in the name of PK. The business of PK later expanded to roads and building constructions. Apparently, the business grew and the parties were able to purchase a flat in Shatin (“the Shatin Flat”) on 1 August 1983 for use as PK’s office. It was purchased in H’s name at a price of $286,000, with a mortgage of $140,000. It is common ground that PK was the source of finance.

16. On 11 February 1987, the Shatin Flat was sold for $330,000.

17. From about February 1991 to June 1991, W purchased a piece of land (“the Land”) at a nearby village from another indigenous villager. The Land was then partitioned into 3 sections, being Section A, Section B and Remaining Portion (“the RP Lot”). She built a 3-storey village house on Section B (“the 47D House”) which became her and TK’s home since 2001 up until now.

18. At about the same time, another 3-storey village house was built on Section A (“the 47E House”). According to the land search record, except for a brief period of time from 19 June 1991 to 10 December 1991 during which W was the owner of Section A, on the face of it the lot was developed by someone else which became the 47E House. Again, according to the record, the three floors were sold to different purchasers in around September and October 2001 for a total price of $3,350,000.

19. Finally, as for the RP Lot, W transferred it to the eldest son YS on 19 June 1991. Since then there was no activity till 31 January 2013 when YS apparently executed an assignment in favour of a developer for the consideration of $680,000.

20. As much of the disputes revolve around the Land, I need to revert to what happened to it in greater details below.

21. Shortly after the Land was purchased, on 29 August 1991, a flat in Uptown Plaza (“the Uptown Property”) was also purchased, with mortgage finance, in the name of W for $1,438,000. The Uptown Property was used by the parties as their matrimonial home; before then, the family used to live in rented accommodation.

22. On 13 May 1994, W entered into a second mortgage on the Uptown Property, apparently for the purpose of raising capital for PK. However, shortly thereafter on 24 September 1994, the Uptown Property was sold for $2,780,000 and the parties then moved to a house (“No. 52 House”) in W’s native village, the L Village. This house belonged to W’s younger brother LYM, who at all the material times was living in Canada.

23. W says it was when she moved to live in the L Village that she started to separate with H. A while later, W, together with TK, moved to another house within the same village, leaving H in No. 52 House where W’s mother was also living. H’s version that he took care of W’s mother until she died in 2001 is not challenged.

24. In 2001, when the construction of the 47D House was completed, W and TK moved in and they have since been living there until now. Meanwhile, H continued and is still living in No. 52 House.

The Business of PK

25. As mentioned above, this company, a sole-proprietorship, was started by H in about 1977. Though there are some disputes over the roles that the parties played and hence their contribution to the business, I think it is not inaccurate to say that the business once prospered in the early 90’s and then declined. W’s case is that she had no involvement in the business after 1997 or 1998. On the other hand, H denies this and says he and W was in the business together up to about 2001 when PK ceased business.

26. The situation as it stands is that both are not working and H has been on CSSA since 2002. Both are on legal aid in the present proceedings. It is common ground that because of their age and ill health, both do not have any earning capacity. H is facing eviction from W’s younger brother and if the 47D House is to be sold for division between the parties, W will have to look for alternative accommodation. Finally, the education needs of TK would have to be catered for.

27. Since the children also play a part in the dispute, I need to set out their brief particulars.

28. The eldest daughter YY worked in the Netherland in her early years. Unfortunately she became mentally ill upon return to Hong Kong and is now living in a rehabilitation home. She has a daughter, now about 17 years old.

29. The second daughter YL left for Hawaii for further education in about 1986. After graduation in about 1990, she went to work in Singapore for a while and then immigrated to the United States. She appeared to have a well-established career in information technology and is now residing in California.

30. The eldest son YS is about 2 years younger than YL. He followed YL and headed for further education in Hawaii but unfortunately for some reasons he was not able to complete his degree. He however did not return, got married and has since been settling there. I am told that because of his lacking in qualifications, in contrast to YL, he has been working in a rather insignificant position in a restaurant.

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