Appeal from Registrar's decision - Hearing de novo, but only confined to the issues set out in the notice of appeal - Wrong in principle for the court to make an order for a smaller maintenance than the case merits so as to bring pressure upon the wife to be in gainful employment and thereby reduce the husband's liability to maintain her - costs awarded on five years' separation on unreasonable conduct of the husband.
IN THE DISTRICT COURT OF HONG KONG
HOLDEN AT VICTORIA
ACTION NO. 309 OF 1980
|ROBERT YUNG PAK LIANG
|(alias YUNG CHO FAM)
|LENA YUNG DAI MING
Coram: H. Wong, D. J. in Court.
Date: 11th March 1983
1. This is an appeal against the Registrar's decision on ancillary relief in a matrimonial action. I shall, for convenience's sake, call the husband appellant as the "Husband" and the wife respondent as the "Wife", although their divorce decree has been made absolute.
2. The couple was married in Hong Kong in 1962 and two children were born to them in 1963 and 1965 respectively. In 1974 the Wife alone went to live away from the rest of the family and thenceforth was given $4,000 by the Husband as monthly maintenance. Their marriage was eventually dissolved in September 1980, with the children's custody being given to the Wife but control and upkeep remaining vested in the Husband and with maintenance. to the Wife. continuing on the same term as before.
3. On 13.1.82 the Wife's application for ancillary relief was heard by Mr. Registrar Blackwell (as he then was) who: (a) confirmed the then existing interim order of maintenance of $4,000 (b) ordered the Husband to pay to the Wife a lump sum of $200,000 and (c) awarded costs to the wife. It was against this decision that the Husband appealed on 2 grounds: (1) for a reduction of the maintenance and (2) for the cancellation of the order as to costs; whilst the wife also cross-appealed for an increase in that maintenance.
4. All along the Husband was legally represented and his notice of appeal was filed on 18.1.82. At the hearing of the appeal on 28.10.82 the Husband's counsel proceeded on the basis that all 3 items of the Registrar's order, viz, lump sum payment, maintenance and costs, were challenged
5. Although I agree with both counsel that the appeal is a hearing "de novo", yet I feel that since the court was moved to try what was set out in the notice of appeal, i.e. on maintenance and costs, it could not, without the Wife's consent, hear the Husband's argument on lump sum payment which is a matter extraneous to the scope of that notice. It should also be noted that the Husband had 9 months between January and October 1982 within which to decide what items to prosecute but had taken no steps to amend the ambit of the issue to incorporate the third item of lump sum payment in his notice of appeal. In the event I hold the view that the question of lump sum payment cannot be considered. Nevertheless, for the sake of argument, I would, if the matter was allowed to proceed, deal with it in the following manners According to the notes of the proceedings before the Registrar, the Husband stated that he was managing director of. lotus international limited, a travel agency (hereinafter referred to as "lotus Ltd.") for many years and, in order to enhance his position vis-a-vis clients, he was given, without consideration, 10% of the issued shares of that company by H.P. Kong, Lotus Ltd's largest shareholder and the person having its effective control. The Husband's story was also that that donation would be returned to the donor once he left Lotus Ltd. He admitted that his said holding consisted of 550,000 shares at par value of $1.00 each and that the equity of lotus Ltd., as shown in the Balance Sheet as at 30.9.80, stood at $12,107,430.00, from which should be deducted a fraud perpetrated by an employee of the company of $3,500,000.00. Furthermore, he argued that his shares were not marketable because of the restriction on their transfer. The Registrar appeared to reject that argument and held that the Husband's shares had real value and could be realized. He also felt that there were special circumstances being involved and assessed $200,000.00 as an arbitrary lump sum. For my part, I would hold the view that, first, in the absence of proof that the Husband held those shares in trust for H.P. Kong, the claim that H.P. Kong had equitable interest in them would be untenable. Second, I would say that the said...