Chan Tin Sun v Fong Quay Sim

• Jurisdiction: Singapore
• Judgment Date: 15 January 2015
• Date: 15 January 2015
• Docket Number: Civil Appeal No 87 of 2014
• Court: Court of Appeal (Singapore)

Chan Tin Sun

Plaintiff

and

Fong Quay Sim

Defendant

[2015] SGCA 2

Sundaresh Menon CJ

,

Andrew Phang Boon Leong JA

and

Judith Prakash J

Civil Appeal No 87 of 2014

Court of Appeal

Family Law—Matrimonial assets—Division—Wife poisoning husband—Husband making unexplained withdrawals from bank account—Whether misconduct should be considered in determining just and equitable division—Whether adverse inference to be drawn against husband—Section 112 (2) Women's Charter (Cap 353, 2009 Rev Ed)

The husband (‘Husband’) and wife (‘Wife’) were married with a son from 29 March 1977 until 15 December 2011, when a decree nisi was granted to both the Husband and Wife on their claim and counterclaim respectively. The Husband had filed for a divorce on the ground that the Wife had systematically poisoned him with arsenic between 2004 and 2005. The Wife was sentenced to one year's imprisonment for the offence of causing hurt to the Husband. The Wife's counterclaim alleged that the Husband had neglected and verbally abused her during the course of the marriage.

At the ancillary hearing, the judge rejected the Husband's contention that the Wife's act of poisoning him ought to negate all her indirect contributions to the marriage. However, he found that the Wife's misconduct significantly reduced her indirect contributions as caregiver vis-à-vis the Husband from 2004 onwards. The judge eventually held that an award of a 35% share of the matrimonial assets to the Wife was a just and equitable division of the matrimonial assets. The judge also found that the Husband had failed to make full and frank disclosure in respect of moneys withdrawn from his bank account between November 2009 and July 2012. An adverse inference was drawn against the Husband and the Wife was awarded an additional 7% share of the matrimonial assets.

The Husband appealed against the judge's decision. He contended that the judge had failed to adequately consider the Wife's misconduct in determining the just and equitable division of the matrimonial assets and further that the judge erred in drawing an adverse inference against the Husband.

Held, allowing the appeal:

(1) Whilst s 112 (2) of the Women's Charter (which enumerated a list of factors to be considered to assist the court in deciding whether and how to exercise the discretion conferred by s 112 (1) of the same Act) did not expressly include the conduct of parties as a matter that the court should have regard to, the enumerated factors in s 112 (2) were clearly not exhaustive and were ultimately subject to the overriding direction in s 112 (2) that the just and equitable division of matrimonial assets had to be made having ‘regard to all the circumstances of the case’. Hence, the court was not precluded from considering the conduct of the parties in exercising its power to order the division of matrimonial assets. However, the court only ought to have regard to conduct that was both extreme and undisputed: at [22] and [25] .

(2) Marriage was an equal co-operative partnership of efforts for the mutual benefit of both spouses. Where a spouse not only failed to contribute to the marriage, but also engaged in conduct that fundamentally undermined the co-operative partnership and harmed the welfare of the other, a negative value could be ascribed to such conduct. The court would do so as part of the exercise of valuing the spouse's contributions to the marriage and not in order to punish the wrongdoing spouse: at [27] and [28] .

(3) The spouses' respective financial needs were something that our courts could have regard to when determining the just and equitable division of matrimonial assets. Where one spouse's future foreseeable financial needs had largely been the result of the conduct of the other, it ought to be given more weight: at [49] .

(4) No one factor was determinative in respect of a just and equitable division of the matrimonial assets. The various factors had to be duly assessed and considered in a holistic manner, subject to the overriding direction to the court to come to a just and equitable division of the matrimonial assets having regard to all the circumstances of the case: at [28] .

(5) The Wife's conduct was extreme and undisputed; it fundamentally undermined the co-operative partnership and harmed the Husband's welfare. A negative value therefore ought to have been ascribed to the Wife's conduct and considered in the just and equitable division of the matrimonial property. The Wife's needs should be subordinate to those of the Husband's, since his needs largely stemmed from her misconduct of poisoning him the first place. Nevertheless, due credit had to be given for the Wife's contribution to the welfare of the family prior to her misconduct. The Wife ought to be awarded a share of the matrimonial assets. In the premises, it was just and equitable to apply a discount of 7% to the 35% share that the Wife had been awarded by the judge below: at [54] to [56] .

(6) The judge did not err in drawing an adverse inference against the Husband. A prima facie case had been made out against the Husband in light of the moneys he had withdrawn from his bank account and which remained unaccounted for, despite being a matter clearly within his knowledge. The Husband's explanations for the withdrawals were without basis and unsupported by credible evidence: at [60] to [62] .

(7) It was within the court's discretion to determine how to give effect to the adverse inference drawn against a spouse and the appropriate way to do so would depend on the facts of the particular case subject to the overriding impetus of achieving a just and equitable result. Where the appropriated sum of money or the value of the undeclared property was known, the approach that would best achieve an equitable and just result would be to add the known sum or value back into the matrimonial pool for division. Therefore the unaccounted sum ought to have been added back into the matrimonial pool to give effect to the adverse inference drawn against the Husband: at [65] and [66] .

Av A [1995] 1 FLR 345 (refd)

AQS v AQR [2012] SGCA 3 (folld)

Bateman v Bateman [1979] Fam 25 (refd)

BCB v BCC [2013] 2 SLR 324 (refd)

Chan Tin Sun v Fong Quay Sim [2014] 3 SLR 945 (overd)

Clark v Clark [1999] 2 FLR 498 (refd)

Evans v Evans [1989] 1 FLR 351 (refd)

Fong Quay Sim v PP Criminal Motions Nos 34 of 2011 and 36 of 2010 and Magistrate's Appeal No 183 of 2010; [2011] SGHC 187 (refd)

Hv H [2006] 1 FLR 990 (folld)

Hall v Hall [1984] FLR 631 (refd)

Koh Bee Choo v Choo Chai Huah [2007] SGCA 21 (folld)

Kyte v Kyte [1988] Fam 145 (refd)

Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR (R) 520; [2007] 3 SLR 520 (refd)

Miller v Miller [2006] 2 AC 618 (refd)

NK v NL [2007] 3 SLR (R) 743; [2007] 3 SLR 743 (folld)

PP v Fong Quay Sim [2010] SGDC 189 (refd)

PP v Fong Quay Sim [2010] SGDC 224 (refd)

Tan Bee Giok v Loh Kum Yong [1996] 1 SLR (R) 130; [1996] 2 SLR 188 (refd)

Tay Sin Tor v Tan Chay Eng [1999] 2 SLR (R) 385; [2000] 2 SLR 225 (refd)

Wachtel v Wachtel [1973] Fam 72 (folld)

W v W [1976] Fam 107 (refd)

White v White [2001] 1 AC 596 (refd)

Yeo Chong Lin v Tay Ang Choo Nancy [2011] 2 SLR 1157 (folld)

Penal Code (Cap 224, 1985 Rev Ed) s 328

Women's Charter (Cap 353, 2009 Rev Ed) ss 46 (1) , 112 (1) , 112 (2) (consd) ;ss 112, 112 (2) (d) , 112 (2) (h) , 114 (1) (b)

Matrimonial and Family Proceedings Act 1984 (c 42) (UK)

Matrimonial Causes Act 1973 (c 18) (UK) ss 24, 25 (consd) ;ss 25 (2) (b) , 25 (2) (g)

NSreenivasan SC and Stuart A Palmer (Straits Law Practice LLC) for the appellant

Wong Chai Kin (Wong Chai Kin) for the respondent.

Andrew Phang Boon Leong JA

(delivering the grounds of decision of the court):

1 This is an appeal by the ex-husband (‘the Husband’) against the decision of the judge (‘the Judge’) below (in Chan Tin Sun v Fong Quay Sim[2014] 3 SLR 945 (‘the Judgment’)) to award his former wife (‘the Wife’) a 42% share of the matrimonial assets - 35% based on a just and equitable division of the matrimonial assets with a further 7% uplift after drawing an adverse inference against the Husband for concealing assets.

2 This was a wholly unexceptional case, save in one (perhaps paradoxically) startling respect - the Husband had been systematically poisoned by the Wife with arsenic between 2004 and 2005. In due course, the Wife was convicted for causing hurt to the Husband under s 328 of the Penal Code (Cap 224, 1985 Rev Ed) and was sentenced to one year's imprisonment.

3 On 12 November 2014, we heard the parties and allowed the appeal. We now set out the detailed grounds for our decision.

Facts

4 The Husband and Wife were married on 29 March 1977. The Husband is presently 74 years old and the Wife is 72 years old. They have one son from the marriage (‘the Son’), now aged 36. The Son is presently working as a veterinarian in Hong Kong and has been living there since 2005.

5 Throughout the marriage, the Wife was a full time housewife. The Husband worked as a contractor.

Events leading up to the divorce

6 The Husband started to feel very ill and was admitted to Changi General Hospital several times between August 2005 and September 2006. Upon his readmission in October 2006, he was diagnosed to be suffering from chronic arsenic poisoning. A police report was filed by Changi General Hospital on 29 November 2006.

7 Following police investigations, it came to light that the Husband had been systematically poisoned by the Wife between 2004 and 2005. On 27 May 2010, the Wife was sentenced to one year's imprisonment for causing hurt to the Husband, an offence under s 328 of the Penal Code, by adding arsenic, in the form of powdered insecticide into his food (see PP v Fong Quay Sim [2010] SGDC 189 and PP v Fong Quay Sim [2010] SGDC 224 for the decisions of the District Court on liability and sentence, respectively). Her appeal against...