A woman who went to prison for a year for poisoning her husband will suffer a 7 per cent cut in her share of their matrimonial assets in their divorce.
The Court of Appeal, in a novel decision, ruled that her crime had to be taken into account in deciding how to split the assets between them.
"It was plain to us, on the facts of the present case, that the wife's misconduct was so extreme and undisputed that it fell to be considered in determining what would be a just and equitable division of the matrimonial assets," wrote Judge of Appeal Andrew Phang in the grounds released yesterday.
Madam Fong Quay Sim, 72, was convicted in 2010 of lacing husband Chan Tin Sun's food with arsenic between 2004 and 2005. He was so ill at one stage that he could not move his limbs.
The couple were married for 34 years and have a 36-year-old son who is a veterinarian in Hong Kong.
Mr Chan, 74, a retired contractor, sued for divorce in 2011, and Madam Fong, who was said to have suffered a long history of chronic spousal emotional and verbal abuse, made a counterclaim against his unreasonable behaviour. A family court granted an interim divorce to both in 2011.
Last year, the High Court awarded Madam Fong 35 per cent of the couple's $2.1 million in assets plus another 7 per cent when Mr Chan failed to account for $705,000 withdrawn from his bank account which would have been part of their joint assets.
Senior Counsel N. Sreenivasan, citing English cases in arguing Mr Chan's appeal, urged the court to ascribe a negative value to Madam Fong's crime and said his client was prepared to give her a 20 per cent share of their total assets.
But Madam Fong's lawyer, Ms Wong Chai Kin, countered that to factor a negative value for her misconduct was tantamount to punishing her twice as she had already served a jail term.
The Court of Appeal stressed that in ascribing a negative value, the court is "not seeking to punish the wrongdoing spouse. Rather the court does so as part of the exercise of valuing the spouse's contribution to the marriage".
It made clear that if it ignored the misconduct, "the public might think that we had taken leave of our senses", quoting an English judgment dealing with a somewhat similar case.
The apex court clarified that no one factor can be paramount and various factors must be taken altogether to ensure assets are fairly distributed between spouses.
The court, comprising Chief Justice Sundaresh Menon, Judge of Appeal Phang and Justice Judith Prakash, ordered the 35 per cent share of the matrimonial assets for Madam Fong be cut to 28 per cent to reflect the "negative value" of her misconduct.
The court also ordered the sum undisclosed by Mr Chan, computed at $645,960, to be added to the assets, which would then total $2.745 million.
Madam Fong was therefore entitled to 28 per cent of this - a total of $768,582.
The court did not award costs as she was legally aided.
