Koh Kim Lan Angela v Choong Kian Haw and Another Appeal

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 17 November 1993
• Neutral Citation: [1993] SGCA 83
• Plaintiff Counsel: Raj Singam and Randolph Khoo (Drew & Napier),Tan Hin Tat and Sean Lim (Piah Tan & Pnrs) and Yeoh Piah Chuan (instructing solicitor) (Sim Hill Tan & Wong)
• Date: 17 November 1993
• Published date: 19 September 2003
• Subject Matter: Words and Phrases,Assessment,Definition of 'joint efforts' within the meaning of s 106 of the Women's Charter (Cap 353),Matters to consider when deciding wife's share,Court's power to draw adverse inference that husband is of very substantial means from his failure to make full and frank disclosure,Maintenance,Matrimonial assets available for division under s 106 Women's Charter,Duty of husband to make full and frank disclosure of assets,When gifts acquired by husband before marriage may be considered divisible matrimonial property,s 106(1), (2), (3) & (5) Women's Charter (Cap 353),s 106 Women's Charter (Cap 353),Family Law,Matters to consider,Whether efforts of others a bar,s 108 Women's Charter (Cap 353),'Joint efforts',Matrimonial assets,Division,Lump sum order
• Docket Number: Civil Appeals Nos 163 and
• Citation: [1993] SGCA 83
• Court: Court of Appeal (Singapore)
• Year: 1993

Cur Adv Vult

The facts

This appeal and cross-appeal arise out of the ancillary orders made in divorce proceedings between the parties. The parties were married on 20 December 1982. The wife was 23 years old at the time. Prior to the marriage she had worked as a model. After the marriage she gave up her job to help in the husband`s business. There are no children to the marriage.

In August 1985 the wife moved out of her then father-in-law`s family home in which the couple lived. In May 1986 there was an attempt by the couple at reconciliation. It is disputed how long this period lasted. In August 1986 the wife moved out permanently. On 27 August 1987 the wife filed a petition for divorce. The husband in turn cross-petitioned for divorce. On 14 November 1988 the husband was ordered to pay the wife $3,000 a month as interim maintenance. On 4 September 1991 the decree nisi was granted.

At the conclusion of the hearing on the ancillary matters the learned judicial commissioner made, inter alia, the following orders:

(1) Under s 108 of the Women`s Charter (Cap 353), that the husband pay the wife a lump sum of $54,000 in lieu of future maintenance payments;

(2) Under s 106(3) of the Women`s Charter a sum of $100,000 be paid by the husband to the wife in six equal monthly instalments.

In Civil Appeal No 163 of 1992 the wife appeals on the ground that the amounts ordered to be paid to her are too low. In Civil Appeal No 165 of 1992 the husband argues the converse, that the order was too generous, and in addition, that the lump sum order for maintenance was inappropriate.

The husband`s assets and liabilities

The husband`s business assets involve three related entities: the partnership firm of Glamourette (`Glamourette`), the company Glamourette Plus Pte Ltd (`Plus`) and Glamourette Shops Pte Ltd (`Shops`).

Prior to the marriage the husband owned half of Glamourette and 20% of Shops. Glamourette had been set up by his parents. In 1980, his father made him a partner in place of his mother who had been ill since 1979. He and his father, thereafter, were equal partners. Shops, which at that time was a shelf company, subsequently became the family company. His father, his two sisters and his brother each own 20%. Sometime later Plus was set up. It was a dormant $2 company with the husband and his father each owning a half share. In 1989 the business was re-organized with a view to expansion with a partner, Ambassador Holdings Pte Ltd (`Ambassador`). Plus was used for this purpose. The business of Glamourette was injected into Plus. The capital of Plus was increased to $2m. 49% of the capital was issued to the husband and his father. 51% of the capital was issued to Shops. The 49% issued to the husband and his father was sold to Ambassador in consideration of four million ordinary shares of Ambassador of $1 each. The agreement with Ambassador provided that the husband and his father were each to have two million ordinary shares. However the husband`s father directed that all the shares be transferred to the husband.

Thus the husband`s business assets at this point in time are:

(1) 20% of Shops, and through this, 10.2% of Plus;

(2) A debt owing to him by Shops;

(3) Four million Ambassador shares.

The husband`s affidavit of means revealed:

(1) $89,746.14 in the ordinary account of his Central Provident Fund as of June 1991;

(2) Two insurance policies under which a sum of $150,000 is payable;

(3) A Honda Accord with an estimated value of $55,000 subject to a hire purchase agreement that would last until March 1992;

(4) The husband`s monthly income is stated as $4,500. Somewhat inconsistently his gross taxable income for the whole year ending December 1990 was $19,181.

The husband stated that he had no bank accounts at all. However in cross-examination he admitted he possessed `a few thousands` in his bank account. He possessed three credit cards, two in his name and another in the name of Plus. He was unable to recall his monthly credit card expenditure.

His liabilities were:

(1) Interim maintenance payments of $3,000 a month to the wife;

(2) Insurance premium payments of $334.50 monthly;

(3) Income tax liability for the year ending December 1990 of $579.05;

(4) Expenses estimated at $1,700. Monthly instalments for the Honda had expired by time of trial;

(5) His partnership profits in Glamourette - overdrawn by $169,947.01 (the learned judicial commissioner accepted that this was owing to his liability to pay the wife interim maintenance);

(6) A business liability together with his father under a performance guarantee to Ambassador for $2,577,627;

(7) The husband now has a second family. At present he has a child. His wife, Foo May Lin, is pregnant with his second child and is a housewife. They do, however, live in his father`s home and the husband only funds the marketing when he does it.

The wife`s resources and needs

The wife testified that her total monthly expenses came to $6,580. The following is a breakdown:

Rental of a flat $2,000

Dental bills $2,000

Food $ 750

Clothing $ 500

Transport $ 300

Grooming $ 130

Make-up $ 500

General expenses $ 400

She testified that she was working as a jewellery designer. To date she has sold to Galeries Lafayette, Chomel, Tangs and Robinsons. She receives $800-900 every two months from Galeries Lafayette, and $2,000-5,000 from Chomel on the same basis. She has only done one sale to Robinsons and Tangs. She also does business in Bali with an annual turnover of $30,000 to $40,000 with a profit margin of 20%. She pays no income tax upon her earnings. She expressed a desire to do a course in business management during her examination-in-chief. Later she revealed a desire to go to Parson`s of New York to study jewellery design which would cost her US$10,000 a year.

The division of matrimonial assets

The learned judicial commissioner ordered a lump sum payment of $100,000 by the husband to the wife in six equal monthly instalments.

The question of division of matrimonial assets is governed by s 106 of the Women`s Charter. For present purposes a distinction has to be drawn between those assets the husband possessed prior to the marriage, which are governed by s 106(5), and assets acquired during the marriage, which are governed by s 106(1) or s 106(3). We will deal first with the question whether each disputed asset is capable of such division; we will deal with the wife`s quantum out of the available assets thereafter.

Assets acquired prior to the marriage

These assets are two. The first is the husband`s half share in Glamourette given to him by his father. We are of the view that the dispute over this asset is misconceived because Glamourette is now a dormant company. Owing to the re-organization of Glamourette its assets were injected into Plus as already recounted. Hence it is the Ambassador shares and the 20% of Shops that are the disputed assets possessed by the husband. The Ambassador shares are assets acquired during the marriage and will be discussed later; the 20% of Shops will be discussed now.

The issue of whether the 20% share in Shops is amenable to division is governed by s 106(5) which reads as follows:

For the purpose of this section, references to assets acquired during the marriage include 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.

It will be seen from the words of the statute that there are two requirements: substantial improvement in the assets during the course of the marriage, and that the source of that improvement should be the wife`s efforts or the joint efforts of the husband and wife.

The learned judicial commissioner stated his finding on this question in these terms:

... Mr Choong (the husband`s father) said his children did not pay for the shares. He gave them the shares. According to Mr Choong`s evidence this company (Shops) was incorporated as part of his plan for the future so that eventually all his assets will go to his children. Mr Choong said that everything in the company is under his control. If he wants back the shares he had given to his children, they will return them to him ... I accept the evidence of Mr Choong. However I would regard the respondent`s (husband) interest in GSPL (Shops) as a gift from his father.

According to Mr Chio`s affidavit evidence, the book value of the respondent`s interest in GSPL is $400,000. However there is no evidence before me that this particular asset of the respondent`s has been substantially improved during the marriage the petitioner (sic) or by the joint effort of both parties.

The learned judicial commissioner`s reasons can therefore be summarized into two: that the shares were a gift; and that there had been no substantial improvement. We are of the view that the fact that the asset was initially a gift is no bar provided the two above-mentioned conditions of sub-s (5) are made out. This was made clear by the recent decision of this court in Hoong Khai Soon v Cheng Kwee Eng . This case concerned, inter alia, the husband`s share in a restaurant, Soon Heng Restaurant. This had been a gift from his parents prior to his marriage. At first instance the trial judge held that the gift was an interest acquired prior to the marriage. This court agreed at p 38:

Here, the husband`s capital interest was certainly vested and must be taken to be fixed, before the marriage, at the date of the registration of the partnership.

The court did not view the fact that it had been a gift as a bar. Its reason for disallowing the wife an interest was that she could not prove that she, either alone or jointly with her husband, had contributed to the substantial improvement of the asset. This was clarified at p 38:

It is plain that the efforts which bring the asset, ie the

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