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Yuen Toombs Stephanie Downs v Yuen Elmer

Judgment Cited in Precedent Map Related
Vincent
Judgment Date21 February 2001
Year2001
Judgement NumberHCMC2/2000
Subject MatterMatrimonial Causes
CourtHigh Court (Hong Kong)
HCMC000002/2000 XCHRX YUEN TOOMBS STEPHANIE DOWNS v. YUEN ELMER

HCMC000002/2000

HCMC 2/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MATRIMONIAL CAUSES NO. 2 OF 2000

(formerly FCMC (DJ)9231/96)

____________

BETWEEN
YUEN TOOMBS STEPHANIE DOWNS Petitioner
AND
YUEN ELMER Respondent

____________

Coram: Deputy High Court Judge Woolley in Chambers

Dates of Hearing: 7, 12 and 13 February 2001

Date of Handing Down Judgment: 21 February 2001

______________

J U D G M E N T

______________

1. These are applications for ancillary relief by both the petitioner and the respondent in these matrimonial proceedings, together with other related applications for injunctions, and setting aside transactions under section 17 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. The respondent did not appear at this hearing and was not represented, but sent to the court letters enclosing what purported to be medical reports. I acceded to the request of Mr Coleman, on behalf of the petitioner, to proceed in the absence of the respondent, and will first of all give my reasons for so doing.

2. The proceedings were commenced on 27 September 1996, a decree nisi was granted on 12 May 1997, and the outstanding matters were transferred to this court by order of HH Judge Carlson on 7 January 2000. Directions were given by Deputy High Court Judge Gill on 29 June 2000, which included an order that the parties file and simultaneously exchange updated affidavits of means by 31 August 2000 and attend the court for cross-examination. Shortly thereafter, I understand, the parties attended the Listing Officer and the matter was fixed to be heard before me on 7 February this year with eight days reserved. The petitioner filed her affidavit in December 2000, and served it on the respondent, after waiting in vain for him to exchange his. He has never done so.

3. When the matter came before me on 7 February 2001, the court, and the petitioner's solicitors, had received, one or two days before, a letter from the respondent in New York, USA, with two medical reports. He requested an adjournment of the proceedings because of an attack of acute gouty arthritis, and of the medical reports, one, dated 30 January 2001, advised him to take a rest from that date to 5 February, and a second, dated 3 February, citing severe pain, advised him to remain at home for one week from 3 February to 9 February. On the basis of these reports, which were on the respective doctors' headed notepaper and signed and chopped by them, I adjourned the hearing to 12 February.

4. On 12 February the court received a further letter by fax from the respondent saying that he had been strongly advised by his doctor not to travel in the coming few weeks, and enclosing what purported to be a further medical report, which I did not consider provided a sufficient reason to again adjourn the hearing. The medical report itself raises doubts as to its genuineness. It is not on the doctor's headed notepaper as before, but apparently produced on a word processor, with different, and incorrect, spacing between some of the words and numbers. It is typed rather than written in the doctor's own handwriting, and does not bear his chop. As to its contents, I am not satisfied that, even if genuine, they give adequate reasons for the respondent not to attend. The doctor does not say he has even seen the respondent, or been told of the impending hearing, describes the foot pain as only "moderate", and only "suggests" that he should take it easy and not travel. This, in my view, is far from a convincing medical opinion that the respondent is unable to travel to Hong Kong to complete proceedings which have been in progress for a long time and the hearing date of which was fixed many months ago.

5. Taking all the circumstances into account, including the respondent's total failure to comply with Deputy High Court Judge Gill's order of June 2000, his failure to instruct solicitors to assist him, except when it suited him, which, as I find below, he could well afford to do, and the constant and apparently intentional lack of complete disclosure throughout these proceedings, about which he would have to face difficult cross-examination, I am led to the conclusion that this is a cynical attempt to avoid this hearing, or to put it off indefinitely. I accordingly ordered the matter to proceed. Although only the petitioner has filed an up to date affidavit pursuant to Deputy High Court Judge Gill's order, I have been referred to those filed earlier in the proceedings by the respondent. I was at first of the view that I could not take these into account, as part of the order provided that no affidavit shall be relied on if the deponent is not present to be cross-examined, but Mr Coleman requested that I do so, if only to be able to take into account the respondent's explanations, and to see the extent of his non-disclosure. In any event, it may be that Deputy High Court Judge Gill had I mind, not the parties, who were required to attend for cross-examination in any event, but others whose affidavits had been filed at various times in the course of the proceedings. In the event, only the petitioner appeared and gave evidence.

BACKGROUND AND HISTORY

6. The parties were married on 23 September 1988, when the petitioner was 34 years of age and the respondent 39. There were two children of the marriage, Paul, born on 26 May 1989, and Madeline, born on 7 July 1991. Unhappy differences having arisen between the husband and wife, the respondent left the matrimonial home in December 1995 and they have not lived together since. As Judge Carlson noted in his judgment in respect of maintenance pending suit on 24 December 1997, it is not being unfair to the respondent's case to observe that he has shown very little interest since then in the welfare of his wife and the two children. There has been little contact, and the petitioner has received no direct financial assistance from the respondent since early 1997, and the sum ordered by Judge Carlson of $80000 a month from 1 January 1998 by way of maintenance pending suit, save as to sums recovered by her under garnishee proceedings, remains unpaid as to about $2,000,000.

7. Both parties come from comparatively wealthy backgrounds. At the time of the marriage the respondent was the chief executive officer of a company originally founded by his father, Tele-Art Ltd (held by British Virgin Islands company called Tele-Art Inc.) which was very successful and provided them with a comfortable, and possibly luxurious, lifestyle. Their first matrimonial home was a flat in Harbour City, Tsimshatsui, of about 2900 sq. ft, and the second, only slightly smaller, in Cox's Road, overlooking the Kowloon Cricket Club. They had two and sometimes three domestic helpers and a driver, and the petitioner had the use of two cars, latterly a Lexus and a BMW. They also had a 100 ft yacht, in the name of the company but used for family and business entertaining. They spent lavishly on travelling, staying at the best hotels and eating at the best restaurants. In short it was the lifestyle of the family of a rich and successful businessman. The evidence now, which I shall come to shortly, is that the respondent continues to enjoy a similar lifestyle, while the petitioner has had to restrict her spending to what she can now afford, which is far less than that she enjoyed before their separation.

8. When they first met in 1987, the petitioner, who has a master's degree in business, and is fluent in German, was working for American Express as a project manager. The respondent offered her an appointment as chief executive officer and president of a subsidiary of his company from 15 March 1988, which she accepted. She continued to work in this capacity, and to work with the respondent on a number of other projects for his other companies, after they were married, and, indeed, after the birth of their children, two domestic helpers being employed to enable her to do so. This involved numerous business trips abroad both with him and by herself, to Thailand and Ireland. However, shortly after the marriage the respondent stopped paying the petitioner's salary, citing difficult business conditions, and the fact that they were a partnership in marriage as well as in business and that the assets thereby created were for the family.

Mission Hills

9. One of the projects entered into was to build in China what is now known as Mission Hills Golf Club. It was the idea of a Mr David Chu, a friend of the respondent, and, with another friend and business associate, Mr Suraphan, it was agreed that they would invest a total of US$10,000,000 in it in the proportions of 55% from Mr Chu, 30% from Mr Suraphan, and 15% from the respondent, to which the petitioner would contribute some of her own money. A shelf company called Loxwin Ltd was formed for the purpose of holding the petitioner and respondent's 15%, however, the petitioner later discovered that it was never transferred to Loxwin Ltd but retained in his own name. Of the US$1,500,000 contribution this represented, the petitioner put in US$150,000, her mother invested US$200,000 and the respondent's father, US$250,000. The respondent has, however, described the father's payment to be an interest free loan to himself, which is relevant when considering the payment he received from the final settlement below. The petitioner discovered at a later stage that the respondent did not in fact pay any of the US$900,000 which was his share of the investment. Although it was intended that the project should be kept within the original investors' families, the respondent later invited a Mr Edward Ting, another friend and business...

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