IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MATRIMONIAL CAUSES NO. 791 OF 2016
Coram: Deputy District Judge D. Cheung in Chambers (Not open to public)
|Date of Hearing: 9th November 2016 and 28th December 2016
|Date of Handing Down Judgment: 19th April 2017
J U D G M E N T
( Maintenance Pending Suit )
1. This is a hearing of the petitioner wife’s (hereinafter called “the wife”) application for the children maintenance pending suit (“MPS”) against the respondent husband (hereinafter called “the husband”).
2. The Summons for MPS was taken out on 26th April 2016 with a returned date on 23rd May 2016 “hereinafter called “MPS Summons”). On 7th September 2016, it was agreed by both parties that MPS Summons be adjourned sine die with liberty to restore. The wife later requested to restore MPS Summons for argument.
3. In her submission, she stated that she asked for (i) MPS for the sum of HK$46,420 per month being half of the monthly general and children expenses, and she requested that the (ii) MPS be dated back to 27th April 2016. She also requested that (iii) the husband to pay the monthly mortgage for Flat H (hereinbelow defined)(including those overdue and future payment) (iv) and to release her as guarantor for Flat H.
4. Originally both parties were legally represented, but at the time of the hearing, both parties acted in person.
5. The wife is now aged 45 and the husband is now aged 44. The parties were married in June 1997.Within wedlock, they have 1 son and 1 daughter, now aged 16 and 11 respectively, and both of them are students.
6. The matrimonial home was in fact a combined flat of two apartments with the partition wall joining the 2 flats being demolished, namely Flat G and Flat H (hereinafter collectively called the “matrimonial home” and individually called “Flat G” and “Flat H”). Flat G is registered in the wife’s name whereas Flat H is registered in the husband’s name.
7. The wife is the sole director and the sole shareholder of a limited liability company incorporated in Hong Kong in 2006 (hereinafter called “HK company”) and is in the business of selling watches.
8. Throughout the years, all the expenses including but not limited to the mortgage payments of Flat G and Flat H, utility bills, management fees, Government rates, the domestic helper’s salary and all household expenses were paid from money sourced from HK company and/or from the wife’s savings, and all these family and children expenses were paid by the profit generated by HK company.
9. In 2012, the wife and the husband set up an office in Los Angeles (hereinafter called “the LA company”). In about January 2014, the parties agreed that the husband should move to the USA to dedicate his entire time to running the business of LA company. Since then, the husband would stay mostly in the USA and occasionally returned to Hong Kong to stay for around 10 days per month.
10. HK company would supply goods to LA company and LA company would sell goods to its US customers. It was arranged between the wife and the husband that the husband was the sole owner of LA company while the wife would act as the sole director and shareholder of HK company.
11. At the time of the set up of LA company, HK company had incurred a loan of HK$2 million from HSBC (“the loan”) in order to fund the set up in LA company. The loan was secured by Flat G.
12. Previously, the husband also received a salary of HK$35,000 per month from HK company which was paid to him by way of direct deposit into the joint account held by the wife and the husband. The mortgage repayment of Flat H, utility bills and management fees of the matrimonial home, government rates, salary of the domestic helper, family’s monthly membership fee of a private club and part of the household expenses were paid by the husband’s salary received from HK company.
13. The wife also received her own salary from HK company which was paid to her by way of direct deposit into her personal account. The mortgage repayment of Flat G, children school fees, children expenses and other household expenses were paid by the wife’s salary received from HK company.
14. Since 12th November 2015, the wife revoked the husband from being an authorized signatory of the bank account of HK company, and the husband was not allowed to enter into the office of the HK company, and the husband had been excluded from managing HK company and the daily operation of HK company. In addition, since November 2015, the husband also stopped receiving any salary from HK company.
15. The wife subsequently took out an application under FCMP 278/2015 asking for non-molestation order and ouster order against the husband. Pursuant to the non-molestation and ouster order dated 29th December 2015 (hereinafter called the “ouster order”) in the aforesaid proceedings, the husband was ousted from the matrimonial home.
16. Later, both party agreed that the husband could give his undertakings in place of ouster order. Pursuant to the husband’s undertakings made to the wife and to the court on 5th May 2016, the husband remained ousted from the matrimonial home.
17. On 7th September 2016, the husband and the wife was granted joint custody of the children and the wife was granted care and control of all the children with reasonable access to the husband, and the husband remained ousted from the matrimonial home, whereas the children and the wife would stay at the matrimonial home.
18. LA company was dissolved later, and the husband was currently employed by a company in the USA (hereinafter called “J Inc.”) and receiving a salary of HK$25,000.
19. Both parties had filed and exchanged their respective affirmations and Form E Financial Statements. Questionnaire had also been filed and exchanged.
The Law on Interim Maintenance
20. Section 3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192(hereinafter called “MPPO”) states that the only governing principle is that the court shall make such order as it considers reasonable in all of the circumstances of the case. Consequently applications such as these are approached on a broad-brush basis. A detailed examination of the parties’ means may be examined at a later date at a full ancillary relief hearing if there is no agreement in the meantime, when there is then every opportunity to achieve fairness by means of set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing.
21. For the interim maintenance of a child, the governing section is s.5 MPPO (which provides for the maintenance of a child), to be read together with r.78 of the Matrimonial Causes Rules, Cap.179A (which empowers the Court to grant an interim order upon the application for ancillary relief).
22. The overriding consideration for such applications is reasonableness. The Court has to balance the reasonable needs of the applicant and the ability to pay of the respondent on an interim basis (LJ v LWHH  3 HKC 455 at 461D).
23. In undertaking this balancing exercise, the Court will adopt a broad brush approach, and not a detailed investigation of the financial positions of the parties (per Cheung JA in LAML v TCCY CACV75/2004, 13/9/2004 at pp.7-8).
24. It is clear that under this provision there is no power to make an order for an interim lump sum or an interim order for sale or transfer of property, but otherwise the court has an unfettered discretion in the matter subject to the result being reasonable: F v F (maintenance pending suit) (1983) 4 FLR 382.
25. As for the matters which the court should consider in assessing an application for maintenance pending suit, Rayden and Jackson on Divorce and Family Matters, 18th Edition, said these as follows:
“There is no hard and fast rule, and no fixed proportion: each case depends on its own facts. It has been said that the approach to maintenance pending suit should be empirical, and that ‘in the ordinary sort of case the district judges who deal with these applications will have to take a broad view of means on the one hand and income on the other and come to a “rough and ready” conclusion’, or take a ‘broad brush’ approach. The overriding consideration is the actual needs of the parties pending suit. Although the provisions of s 25 of the MCA 1973 are expressed to arise only when the court is deciding whether to exercise its powers under s 23, 24 or 24A, the court may nonetheless have regard to the criteria listed in s 25 on an application for maintenance pending suit.