Wai Yuk Fung v Tsui Sum

Judgment Cited in Precedent Map Related
Judgment Date13 September 1968
Judgement NumberCACV21/1968
Year1968
CourtCourt of Appeal (Hong Kong)
CACV000021/1968 WAI YUK FUNG v. TSUI SUM

CACV000021/1968

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CIVIL APPEAL NO.21 OF 1968

(On Appeal from N.K.S.26303 of 1968.)

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BETWEEN
WAI YUK FUNG Complainant

AND
TSUI SUM Respondent

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Coram: Huggins, J.

Date of Judgment: 13 September 1968

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JUDGMENT

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Huggins J.: The appellant filed a complaint under the Separation and Maintenance Orders Ordinance alleging that the respondent had wilfully neglected to provide reasonable maintenance for her and for the dependent children of the family. She asked for maintenance for herself and for two of the six children of the marriage. She did not apply for a non-cohabitation order because it is common ground that the respondent has left her and has gone to live with another woman. The learned magistrate found that only one of the two children named was below the age of 16 and he ordered maintenance in the sum of $400.- a month for the complainant and this child. The appellant appeals on the ground that the figure of $400.- a month is inadequate.

2. The difficulty in the case lies in the total inadequacy of the evidence of the means of the respondent. There was evidence that he is the sole proprietor of a factory producing plastic products which employs 20 odd workers. The respondent said the factory has a turnover of $30,000.- a month but that the accountant told him it was running at a loss. He said his total earnings were $480.- a month. In addition he said he collected $190.- by way of rent for two stone houses. There was evidence that at one time the appellant was receiving from the respondent a sum of $260.- a month; that he paid $125.- rent for the cubicle which she occupied; and that he paid $95.- as school fees for the two youngest children. In addition he would give odd sums to the children to buy books. The respondent admitted in evidence that he had stopped paying the rent and the school fees but there was a dispute whether he had stopped paying the monthly sum of $260 as maintenance.

3. I should also mention that there was in evidence a Probation Officer's report. The learned magistrate expressly referred to Young Hay v. Wong Kit-mui(1) where Mr. Justice Briggs said at p.710:

"I do not think that it is proper to call for the report of a Probation Officer in cases of this nature, but if the parties had agreed that having read the report they would be bound by any statement therein as to the means of the appellant they could not be heard to complain about its admission as evidence later."

It was no doubt with this passage in...

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