Chow Hoo Siong v Lee Dawn Audrey

• Jurisdiction: Singapore
• Judge: S Rajendran J
• Judgment Date: 10 October 2003
• Neutral Citation: [2003] SGHC 235
• Docket Number: Divorce Petition No 975 of 2000
• Date: 10 October 2003
• Year: 2003
• Published date: 22 October 2003
• Plaintiff Counsel: Raj Singam and Gopinath Pillai (Drew and Napier LLC)
• Citation: [2003] SGHC 235
• Defendant Counsel: Ms Loh Wai Mooi (Bih Li and Lee)
• Court: High Court (Singapore)
• Subject Matter: Maintenance,Taking into account wife's salary,Wife,Family Law,taking into account wife's share of matrimonial assets,Whether substantial improvement by wife or both parties,Gifts,Shares in family company and car acquired by husband as gift before marriage,Matrimonial assets,Division,Appropriate multiplier and multiplicand to use,Whether misdirection for judge to deduct wife's share from husbandÂ’s share before apportionment

1 The Petitioner, Audrey Lee Dawn (“Wife”) and the Respondent, Chow Hoo Siong (“Husband”) were married in the United States of America on 8 February 1989. The Wife was at that time a citizen of the USA. They relocated to Singapore in 1991 and have since then lived in the Husband’s parents’ home. There were no children in the marriage. The Husband worked in a family company which was part of a group of companies founded by the Husband’s father (“Chow”) and the Husband’s uncle. The Wife too worked but not in any of the family companies. Teo Tee Teow Pte Ltd and Teo Brothers Pte Ltd (“the Teo companies”) which will feature in this appeal were companies within this group. The Husband’s parents had, prior to the Husband’s marriage, gifted some shares in the Teo companies (“the Teo Shares”) to the Husband.

2 Differences arose between the Husband and Wife in late 1999. The Wife left the family home in January 2000. In March 2000, she petitioned for divorce on the grounds of unreasonable behaviour. Decree Nisi was granted on 17 August 2000 on an uncontested basis.

3 The ancillary matters relating to the division of their matrimonial assets and the provision of maintenance for the Wife were dealt with after the grant of the Decree Nisi. These ancillaries were heavily contested. The parties and their witnesses gave oral testimony and were subjected to intense cross-examination. The hearing took a total of 13 days between October 2001 and September 2002.

4 The orders that the District Judge made at the conclusion of the hearing included the following:

(a) The Husband pay the Wife a sum of $1,413,746 being 30% of her share of the Husband’s matrimonial assets after deducting the Wife’s assets. Payment to be made not later than 1 November 2002.

(b) The Husband pay the Wife a sum of $180,000 being lump sum maintenance to the Wife in full and final settlement of her claim for maintenance. Payment to be made not later than 1 November 2002.

(c) The Husband pay the arrears of maintenance amounting to $24,000. Payment to be made not later than 11 October 2002.

Dissatisfied with these orders, the Husband appealed. The appeal, heard on 19 May 2003 and 8 October 2003, centered around what assets constituted matrimonial assets available for division and the amount of the lump sum award for maintenance.

Matrimonial assets.

5 Mr Raj Singam, counsel for the Husband, submitted that the District Judge erred in considering the Teo Shares gifted to the Husband by his parents and the value of a Mercedes Benz registered in the name of Chow as part of the matrimonial assets available for division between the parties. He also submitted that the District Judge erred in assessing the value of the shares in Chowiz Pte Ltd, Plene Pte Ltd, Zolton Investments Pte Ltd and Mixtown.com Pte Ltd (“the other shares”) held by the Husband and in assessing the amount of the loans given to these companies by the Husband.

6 The court’s powers to order the division of matrimonial assets is set out in s 112(1) of the Women’s Charter which reads:

The court shall have power, when granting or subsequent to the grant of a decree of divorce, judicial separation or nullity of marriage, to order the division between the parties of any matrimonial asset or the sale of any such asset and the division between the parties of the proceeds of the sale of any such asset in such proportions as the court thinks just and equitable. [Emphasis added]

The words “matrimonial assets” are defined in s 112(10) as follows:

For the purposes of this section, “matrimonial asset” means –

(a) any asset acquired before the marriage by one party or both parties to the marriage –

(i) ordinarily used or enjoyed by both parties or one or more of their children while the parties are residing together for shelter or transportation or for household, education, recreational, social or aesthetic purposes; or

(ii) which has been substantially improved during the marriage by the other party or by both parties to the marriage; and

(b) any other asset of any nature acquired during the marriage by one party or both parties to the marriage,

but does not include any asset (not being a matrimonial home) that has been acquired by one party at any time by gift or inheritance and that has not been substantially improved during the marriage by the other party or by both parties to the marriage. [Emphasis added]

An asset (other than a matrimonial home) acquired by one party as a gift or inheritance would, by reason of this definition, be a matrimonial asset and hence available for division only if that asset has been substantially improved, during the marriage, by the other party to the marriage or by both parties to the marriage.

7 Section 112 came into effect in 1996 when the then s 106 of the Women’s Charter was repealed and re-enacted. Prior to this repeal and re-enactment, there was no specific definition of “matrimonial asset” and no specific reference in s 106 to gifts and inheritances. The previous s 106(1) empowered the court to order the division between the parties of any assets acquired during the marriage by their joint efforts having regard to the consideration set out in s 106(2), while s 106(3) empowered the court to order the division of assets acquired during the marriage by the sole effort of one party to the marriage having regard to the considerations set out in s 106(4). Section 106(5) extended the meaning of “assets acquired during marriage” to assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts. In effect, therefore, even under the previous provisions of s 106, gifts or inheritances – acquired by one party before the marriage – were divisible between the parties upon divorce if those assets had been substantially improved during the marriage by the other party or by their joint efforts.

8 I have in the above paragraph outlined the position under the previous s 106 because it was submitted by Mr Raj Singam that the District Judge had misdirected herself by referring to cases relating to gifts and inheritances – in particular Koh Kim Lan Angela v Choong Kian Haw [1994] 1 SLR 22 – decided under the old law. I see no merit in that submission as even under the old law gifts and inheritances held by one party at the time of marriage were divisible as a matrimonial asset provided that asset had been substantially improved during the marriage either by the sole effort of the other party or the joint effort of both parties. The principles enunciated in those cases are to that extent still relevant.

The Teo Shares.

9 The fact that the Teo Shares were gifts to the Husband from his parents was not disputed. As they were gifts they would, by reason of s 112(10) be available for division between the parties only if they had been “substantially improved” during the marriage by the Wife or by both the Husband and the Wife. The Teo companies, as noted earlier, were within a group of family-run companies founded by Chow and Chow’s brother and the Husband was employed by one of the companies in the group. A group company – Top Global Ltd – had, during the marriage, been publicly listed and this had led to an appreciation in value of the Teo Shares. The question at issue was whether this “improvement” of the value of the Teo Shares could be said to be a substantial improvement attributable to the efforts of the Wife or the Wife and the Husband jointly.

10 The court had, for the purposes of the division of the matrimonial assets, appointed an accountant to value the Teo Shares and the other shares held by the Husband. The Husband, however, refused to make full disclosure to the accountant and the District Judge drew an adverse inference from such refusal. In her words:

The real problem in this case was that the Respondent [Husband] refused to allow inspection of the accounting and financial records of the TTT and Teo Bros to the Court Appointed Accountant (“Goh”). That would have enabled the court to make a considered decision as to whether the nature of the shares remained the same as when they were given to the Respondent or had been substantially improved by one or both parties during the marriage.

…

I was of the view that the lack of evidence concerning the shares should not be held against the Petitioner [Wife] in the division of the matrimonial assets. I could only conclude that his refusal to disclose was because the value of the shares was substantially improved by his efforts and indirectly by her financial contribution towards the...