Pak Lo Sai v Luk Kam Choi

Court:District Court (Hong Kong)
Judgement Number:DCCJ1950/1971
Judgment Date:22 Feb 1972
DCCJ001950/1971 PAK LO SAI v. LUK KAM CHOI

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 1950 OF 1971

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BETWEEN

PAK LO SAI

Plaintiff

And

LUK KAM CHOI

Defendant

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Coram: T.L. Yang, D.J.

Maintenance – whether deed of separation prevents wife from claming – deed contains no provision for maintenance – whether husband can still be guilty of willful neglect to maintain

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JUDGMENT

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1. The parties were married in 1962. There are no children of the marriage, save that the wife has a son of school age from a previous union.

2. For reasons which need not be gone into in these proceedings, the parties reached a separation agreement in August 1967 (hereafter called the August agreement), though the actual separation did not take place until the following month. By the same agreement the husband promised to give the wife $50,000, and it was intended by both parties that the separation was to be for a duration of three years only.

3. Shortly after the August agreement was entered into (it is not clear whether before or after the actual separation), the parties executed a formal separation agreement dated 13.9.67 (hereafter called the September agreement). The September agreement was prepared by a firm of solicitors and signed by both parties in the presence of a solicitor. There is no direct evidence whether the September agreement was intended to supercede the August agreement, but according to the wife’s evidence, both the terms as to the husband’s promise to pay her $50,000 and the term as to the three year period in the August agreement were preserved. This evidence is in my view unacceptable. It will be seen that neither term was mentioned in the September agreement; furthermore, it is clearly stipulated by clause 3 of this agreement that “the wife agrees with the husband that she will support and maintain herself.” Had it been the parties’ intention to preserve the terms respecting the payment of $50,000 and the three year period, one would have expected the solicitors to include these arrangements in the September agreement. I am satisfied that the September agreement superceded the earlier one.

4. After their separation the husband has from time to time given the wife various sums of money. From 1967 to September 1970, he gave her a total of $30,200. I find as a fact that these were entirely voluntary payments and not, as the wife would have the Court believe, payments in pursuance of the August agreement.

5. After the payment in September 1970, the husband stopped giving her any more money and she had had to live on loans. The husband and wife did not see each other again after the separation until November 1971 when they met outside the school of the wife’s son, when she told him she was in need of money and asked him why he had stopped paying her. In reply he told her to apply to the Court.

6. As to her living expenses each month, for herself she requires $300 for food, $50 to $60 for clothing, $50 for miscellaneous items, $150 for rent, electricity and water, and $100 for medical expenses as she is in poor health. She has a life insurance policy on which she has to pay US$68.80 (say HK$380) once every six months. She says that she requires $750 a month for herself. I accept this as a reasonable figure. She pays $60 per month for her son’s school fees and $190 per month for his boarding charges. She also gives her mother in China $100 per month and her aunt in Macau $50 per month.

7. According to a letter from the husband’s employers (which I accept as true) his income from 1.9.70 to 31.10.71 was $33,850.29, the average monthly income is therefore $2,417.87. The wife says his income is about $4,000 per month but there is nothing to support this estimate.

8. Having thus stated the facts, I now turn to the law. In this connexion I have to refer to Clause 5 of the September agreement which provides that nothing therein shall...

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