Chan Tam Lai-man v. Chan Shu-yam

CACV000022/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 22 OF 1968

(On appeal from Divorce Jurisdiction Action No.37 of 1967)

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Coram: Hogan, C.J. and Huggins, J.

Date of Judgment: 23 January 1969

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JUDGMENT

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Hogan, C.J.:

1. This is an appeal from the dismissal of a wife's petition for divorce made on grounds of cruelty and one alleged act of adultery. An answer was filed consisting almost entirely of a blank denial of the grounds for divorce alleged in the petition. In his judgment, the trial judge was critical of the answer and at an early stage in the proceedings appears to have endorsed the contention of counsel for the petitioner that the answer was very unsatisfactory but it does not appear clearly what effect, if any, was given to these criticisms as, apparently, the husband was allowed to introduce all the evidence on which he wished to rely in answering the wife's allegations and was not precluded from doing so by any defect in his pleadings.

2. The parties were married in November, 1957, at the Marriage Registry, Victoria, Hong Kong, the petitioner being then aged 20 and the respondent 27. There are two children of the marriage, both boys, one born in August, 1958, and the other in July, 1960. The petition for divorce was filed in April, 1967. Throughout the greater part of their married life, save for the relatively short periods immediately before and after the births of the children, the petitioner was in employment mainly as a shop assistant, for a short period as a cashier in a photographic studio, and, for a relatively short period before she left the respondent, as a dance hostess. During those periods she was undoubtedly contributing to the upkeep and maintenance of the family household. The respondent himself was also in employment, originally as a shop supervisor, but, during the latter part of the marriage he was, for a substantial time, unemployed.

3. The trial judge summarised the allegations of the petitioner as being that the respondent was a man of ungoverned temper, addicted to gambling and that he had, shortly after the marriage, exhibited a hostile disposition towards the petitioner and manifested an utter lack of affection for her and had thereby pursued a course of conduct calculated to cause, and in fact causing, the petitioner distress and injury or apprehended injury to her health. This summary reproduces paragraph 9 of the petition which was followed by some 30 paragraphs of specific allegations of cruelty and adultery.

4. The trial judge stated that in view of the paucity of the evidence he found it necessary to examine the wife's complaints in some detail but the first ground of appeal before us is that the trial judge was wrong in law and misdirected himself in failing to determine whether the petitioner or the respondent was untruthful and thereby failed to discharge the responsibility reposed in him as an adjudicator; and that the petitioner was entitled to a decision as to whether the evidence which she had given and adduced was or was not to be believed.

5. In argument on this point reference was made to the case of Ho Yau Yee v. Yu Ming⁽¹⁾. In that case, I advanced views, as to the duties of an adjudicator when faced with a conflict of evidence which, as they did not commend themselves to both members of the court, were in the nature of obiter dicta. In doing so, I indicated that a litigant on whom rested the burden of proof and who had produced evidence which, if believed, would be sufficient to discharge that burden, was entitled to a positive decision as to whether that testimony was or was not entitled to credence and should not be adjudged the loser because a judge had failed or was unable to make up his mind on an issue of fact and had left the matter open. It seemed to me that if there was testimony in a case which, taken by itself, was entitled to credence, that credence should not be withdrawn merely because there was conflicting testimony to which credence was not being given.

6. The position would, of course, be different if the adjudicator was prepared to accord to the later evidence a measure of belief sufficient to justify withdrawing credence from the earlier testimony. But if an adjudicator cannot properly say that he does not believe the evidence of one party meroly because other evidence has been introduced, which he rejects as untrue, can he, nevertheless be justified in withdrawing credence from evidence which he would otherwise have believed, merely because he has heard conflicting testimony in which he lacks belief?

7. Attention has been drawn to the position where, having nothing on which to test a decision other than two flatly contradictory statements, a choice between them would be pure guesswork but, under our system, an adjudicator is rarely, if ever, put in that position. He has before him the pleadings in the case, the course of the proceedings and the advantage of testimony, authenticated by oath or declaration and tested by examination, cross-examination and re-examination, and by such further questions as he may wish to put. Although we do not have the opportunities for those experimental shortcuts which earned for Solomon his, possibly exaggerated, reputation for wisdom, it is an assumption of our system of administering justice that, with the advantages just mentioned, an adjudicator will, at the end of the day, be able to recognize where the truth lies and to make findings of fact to which the law can be applied. That is the task and the function accorded to an adjudicator by the community. Failure or inability to discharge it is, if not a failure by the adjudicator, at least a failure of the system and a failure which, if at all frequent, must bring that system into disrepute. It may be that there are occasions when, taking everything into account, including the demeanour of the witnesses, the texture of their testimony under close examination, and the inherent probabilities, both sides are left in exactly equal balance or balanced so close that there is no sensible margin between them but such occasions must be rare indeed. Their existence, at least in traffic accident cases, where it is notoriously difficult to get reliable and satisfactory testimony of fleeting incidents that can make so different an impact on the perception and memory of honest men and women, seems to have been discounted in the observations of the judges in the cases of Bray v. Palmer⁽²⁾ and Baker v. Market Harborough Industrial Co-operative Society Ltd.⁽³⁾, to which reference was made in the Ho Yau Yee⁽¹⁾ case. In Baker's⁽³⁾ case, Denning, L.J., as he then was, said that where the court had no evidence to draw a distinction between the two drivers in a collision case, the court would not wash its hands of the matter because it could not say whether it was only one vehicle which was to blame or both:

8. That approach seems to have found some endorsement in the recent case of Salt v. Imperial Chemical Industries⁽⁴⁾, dealing with a claim for negligence in connection with the manufacture of drums containing caustic soda. In recounting the argument, the Court of Appeal said:

"But Mr. Thompson, for the plaintiff, had complained that really the Judge had failed to reach any conclusion at all, and that this case was in pari materia with Bray v. Palmer⁽²⁾ - the case of a street accident between motor vehicles in which the Judge at first instance had concluded that he could not decide which of the parties had been negligent. In those circumstances the Court of Appeal had said that that result must be an injustice to one, if not to both, of the parties; and that if there was negligence so clear on the part of one or the other party, or possibly of both parties, the Judge must make up his mind.".

9. The Court of Appeal however took the view that the analogy was not a true one:

"..... for an accident of the present kind was not comparable to a street accident unless it could be proved as a matter of fact and according to the ordinary dictates of reasoning that the accident could not have occurred without want of care on the part of one or the other defendant ..... The Judge was entitled to conclude, as he had done, that the defendants had satisfied him that in doing what they did do as regards these drums they had exercised all the proper care which they were in duty bound to do.".

10. Whilst distinguishing the Bray⁽²⁾ case on the facts of the case before them, the court would not appear to have questioned the validity of the principle said to have been expressed in the Bray⁽²⁾ case but that approach does not appear to have found favour with the Australian High Court in the case of Nesterozuk v. Mortimore⁽⁵⁾.

11. In that case two vehicles approached from opposite ends of a straight road, each driver said he was on the correct side and held to his course and that the other vehicle must have swerved although he could not say that he had seen the other swerve. The vehicles struck each other a glancing blow. Apart from the evidence of the parties there was nothing to indicate where abouts in the road the collision occurred. The trial judge said:

"I am thus left with the two conflicting accounts of plaintiff and defendant, with nothing to support either of them. The story of either one could be true or it may be that both were travelling more in the middle of the road than they have claimed to have been. There has been nothing of significance in relation to the demeanour of any of the witnesses. I have no sufficient material on which to decide which party's story is true. I cannot find that the balance of probabilities is weighed down in favour of either the plaintiff or the defendant. In these circumstances, my finding is in the nature of a non-suit but under the Rules of Court I have no alternative but to enter a judgment for the party who stands in the position of defendant in respect of both claim and counterclaim.".

12. An appeal to the Full Court of the Supreme Court of South Australia was dismissed by a majority and this dismissal was upheld, by four judges to one, in the Australian High Court though it is not entirely clear on precisely what the majority of the court were agreed in their apparent, if qualified, dissent from propositions based on Bray v. Palmer⁽²⁾ and Baker v. Market Harborough Industrial Co-operative Society Ltd.⁽³⁾. Owen, J. who gave, perhaps, the principal judgment, referred to the statement of Denning, L.J., as he then was, in Baker's⁽³⁾ case about the practice of the courts in not re...(illegibl)using compensation simply because it could not say whether only one vehicle was to blame or both. He said:

"In my opinion (the passages) quoted from the judgment of Denning, L.J. ought not to be accepted as sound in law, and if the practice of the courts is as his Lordship describes it is contrary to principle and should be replaced by a due recognition of the law as to onus of proof and an acceptance of the simple proposition that no court is entitled to make a finding which is not justified by the evidence.".

13. Kitto, J. expressed his entire agreement with the judgment of Owen, J. but ended his own examination of the Bray⁽²⁾ and Baker⁽³⁾ cases by saying:

"The tribunal may of course reason from the material before it, drawing all logical inferences while refraining from speculation. In particular, by comparing that which is proved to have occurred with that which according to general experience is to be expected when a particular condition has been fulfilled, it may conclude that the condition was not fulfilled in the case before it - res ipsa loquitur. By this process of reasoning many a case is decided in which the fact sought to be proved is that in a particular situation a person did not conduct himself with reasonable care and skill; but the utility of the process in the present case has been exhausted when the conclusion has been reached that there was a lack of reasonable care on the part of one or other or both of the drivers. Because of the meagreness of the evidence, general experience provides no basis for a belief enabling a choice to be made between the three possibilities by a tribunal acting judicially.".

14. Menzies, J. appears to have based his judgment mainly on the distinction between the case where a plaintiff was suing two defendants, and there was evidence that one or other or both were negligent, and an action by a plaintiff against a defendant, when all that could be said at the end of the case is that there was negligence on the part of one or other or both the parties. In the latter case he said:

"the whole of the evidence leaves open the question whether the injury was caused by the plaintiff's own negligence without any negligence on the part of the defendant, Upon such evidence the plaintiff has not, I think, proved his case and is not entitled to any judgment against the defendant.".

15. Windeyer, J. did not refer to Bray's⁽²⁾ case or Baker's⁽³⁾ case but said, in conclusion:

"Doubtless the facts spoke for themselves, and eloquently of negligence; but of whose negligence they had nothing convincing to say. And when the parties themselves spoke, what they said left the learned trial judge still in doubt.".

16. MoTiernan, A.C.J. differed from his colleagues and would have allowed the appeal.

17. The case might possibly be distinguished on the grounds that it turned more on the meagreness of the evidence given by each party than on a direct conflict between testimony which, if believed, was, in itself, fully adequate to prove the contention on which either party relied. The account of the accident given by each seems so thin and insubstantial that in itself it could hardly satisfy the judge as to what happened. Nevertheless, there are passages in the judgments which seem to recognize that a party does not necessarily suffer injustice if a judge leaves unresolved a conflict of evidence though it might fairly be said that the context of the decision ties the observation to a traffic case where, as so often happens in such cases, an adequate, satisfactory and reliable account of precisely what occurred was not forthcoming and the consequences of failure were equally distributed.

18. The conflict in the present case is of a somewhat different character and may well merit an approach closer to that revealed in the recant and widely publicised case of Onassis and Callas v. Vergottis⁽⁶⁾, where three judges in the English Court of Appeal and two judges in the House of Lords appear to have taken a view of the evidence different from that which commended itself to the trial judge and the three other judges in the House of Lords. This would seem to indicate that the balance on either side must have been very fine indeed, but Lord Dilhorne, who spoke for the majority in the House of Lords, put the trial judge's view of the adjudicator's task very ...(illegibl)ucei...(illegibl)ctly when he said:

"The evidence covered a considerable time and on almost every point there was a serious conflict. Mr. Justice Roskill had said that he had to decide who was telling the truth, Mr. Onassis and Madame Callas, or Mr. Vergottis: 'Which do I believe?'".

19. That approach seems to leave little room for an option of not making up his mind between the parties and letting the matter be determined by the onus of proof. The judge's responsibility was again emphasized at the close of Lord Dilhorne's speech when he said:

"The judge was right in saying that the decision turned on the credibility of the witnesses. He was faced with having to decide whether Mr. Onassis and Madame Callas, persons of high repute, had given false evidence and had presented a false claim, or whether Mr. Vergottis, also of high repute, had given untrue evidence and had presented a dishonest defence.".

20. That statement may not have been intended as a considered opinion directly on the point under discussion but it certainly seems to suggest a robust approach to the task of reaching a conclusion.

21. In the light of these decisions, we can determine the first ground of appeal only by examining each allegation and seeing whether, in respect of it, the judge found himself faced with that fine or even balance of evidence which makes a choice impossible or simply failed to adjudicate.

22. The specific allegations begin with the statement, in paragraph 10 of the petition, that, shortly after the marriage, the husband began returning to the matrimonial home two or three times a week at about 2 a.m. and on his return demanded that the petitioner prepare his bath: frequently shouting at her for being too slow. The answer simply denied this allegation. In evidence the husband admitted that he returned late about once a week, because he had to stay late working on accounts at his place of employment, but he denied awakening his wife and asking her to prepare a bath, etc., although he admitted that he did so if she was in fact awake when he returned. The petitioner gave evidence supporting the allegation in her petition which, at best, could establish little more than highly inconsiderate conduct but this, if proved, would have to be taken into account in determining the main issue, the judge, however, made no finding on this conflicting testimony.

23. In support of the allegation in paragraph 11 of the petition, the petitioner gave evidence that once in March 1959, because she was unable to catch a bus, she was half an hour late returning from her work at an emporium in Kowloon, which finished at 11 p.m., and that, on her return, the husband flew into a rage and assaulted her by twisting her arms behind her back. The husband testified that there was a quarrel of short duration but denied any assault, saying there was a re...(illegibl)onoiliation that evening and that he even offered to take the petitioner out for a meal. The judge said he was satisfied that there was a quarrel and he accepted the evidence of the petitioner, corroborated by her mother, that the respondent did chase her out of the bedroom brandishing a high-heeled shoe in his hand but whether he would have struck her with the shoe if not intercepted by the mother and a neighbour must, the judge said, remain a matter of speculation. He went on to say he was not satisfied that there was "really sufficient evidence" that the husband assaulted the petitioner before rushing from the bedroom into the sitting room.

24. The wife gave evidence in support of an allegation in paragraph 12 of the Petition that, in 1962, on returning late, because she had difficulty in catching a bus from the Golden Gate Studio, where she was then working, the respondent shouted and scolded her and falsely accused her of going out with a man. The husband gave what the judge described as "a somewhat inconsistent and conflicting account of this incident", which he went on to describe as so trivial that it was hardly worth referring to. He made no finding as to whether he believed the petitioner or the respondent's account of the incident.

25. Paragraph 13 of the petition alleged that, since 1962, the husband began staying out at night until 4 or 5 in the morning on about three or four occasions in the week and that, when questioned, he would tell his wife that it was none of her business or else say he had been playing mahjong or decline to answer. The wife gave evidence in support of this allegation whilst the husband denied it, saying that sometimes, perhaps once or twice a week, he was kept late dressing the windows of the store where he worked and this was well known to his wife. He admitted, however, that once or twice a month he stayed out late playing mahjong. The judge said:-

"In this matter I have no doubt that there is an element of truth in the testimony of both parties in that the respondent was, to some extent, a mahjong addict and that he did stay out late at night more than once or twice a month but, at the same time, I am of the opinion that the evidence of the petitioner that he stayed out three to four times a week up to 4 and 5 a.m. is probably exaggerated.".

26. Paragraph 14 of the petition alleged that, on about five separate occasions, the husband forced the petitioner to masturbate him orally, well knowing that this gravely upset the petitioner. The petitioner gave evidence in support of this allegation but the respondent testified that it happened only once although he admitted that he did ask the petitioner to do this on other occasions but accepted her refusal and did not seek to press the matter further. The judge said:

"It is not disputed that the respondent did ask the petitioner to perform this act and that she regarded it as distasteful and unpleasant. I accept the evidence that the husband did repeat his request to her for the same thing on other occasions, and it may well be that she was entirely nauseated by the suggestion. However, the petitioner herself said that what was done culminated in normal sexual intercourse. I am quite unable to accept the petitioner's evidence that the respondent compelled her by force to do this on at least five occasions.".

He did not say whether he accepted the evidence that the petitioner was compelled on any occasion or whether the respondent did insist on oral masturbation, well knowing that the suggestion nauseated the petitioner.

27. Paragraph 15 of the petition said that in the winter of 1963, when the wife had arranged to accompany her eldest son and a fellow employee (a cripple) to the cinema, the husband on hearing this went to the office where the wife was working and, in front of her fellow employees, tore up the tickets and assaulted the petitioner by pushing her and holding her head down on the shop counter, striking her several times with his fist, and that, when she managed to get loose, he caught her again and twisted her arms behind her back, eventually running away and leaving the petitioner in great pain. The wife gave evidence in support of this allegation, except that she spoke of only one ticket whilst the husband said that the incident was partly true in that the wife did phone his place of employment and did tell him that she was going to the cinema with her son and that he then went to her place of work although he did not indicate why he thought this necessary. The judge however assumed that it was because the husband objected to her going to the cinema without him. According to the husband, he opened her handbag on arrival and found two tickets and, as it was unnecessary to have a ticket for his five-year old son, he asked for an explanation. She was, he said, unable to give one so he tore up the tickets, a row ensued and the wife threw a transistor at him. He denied assaulting her. The judge's conclusion on this is expressed as follows:-

"It seems to me to be a reasonable inference that the respondent was annoyed when his wife telephoned him and said that she was going to the cinema - without him - and that was why he went to her place of employment. Upon the evidence I am quite unable to say whether there was one cinema ticket or two. It is clear, however, that a quarrel ensued but upon the evidence I am unable to find that the respondent assaulted the petitioner in the manner concerning which she has testified or at all.".

28. In paragraph 16 of the petition, it was alleged that the husband had admitted to the petitioner in early 1964 that he had been "going out with other named girls". The petitioner gave evidence in support of this allegation and also stated that she had found a photograph of one of these girls in his pocket diary, that when she remonstrated with him he promised to return it but that she later found it in the pocket of his pyjamas. In his evidence the husband said that his contacts with these girls were nothing more than ordinary relations with colleagues. He admitted having night snacks with them and attending dinner parties given by the company once a month, after which he escorted them on occasions to their home. He admitted the finding of the photograph, which he said had been given to him by one of the girls at work; that he had forgotten to return it as promised but said that, when reminded about the promise by his wife and she had asked him for this photograph, he had given it to her and that she had torn it up. He denied that it had been found in his pyjamas. The judge's conclusion on these issues - and it may be noted that the pleadings contained no reference to the photograph - was expressed as follows:-

"The allegations of philandering with shop girls working in the same shop with the respondent and the finding by the petitioner of the photograph of a girl in the pocket diary of the respondent and later the same photograph in the respondent's pyjama pocket in a drawer containing his underwear, appear to me so relatively trivial I do not propose to make further reference to them. Whether such allegations are taken individually or in their cumulative effect in relation to the alleged pattern of conduct of the respondent to the petitioner over their married life of ten years, they appear to me to fall far short of conduct amounting to cruelty.".

29. In paragraph 17 of the Petition, it was alleged that, in or about March, 1964, the husband beat the wife and twisted her arms behind her back with such force that she cried out for help; that her screams were heard by her sister and mother and that only on the arrival of the latter did the respondent release the petitioner. The wife gave evidence in support of this allegation. The husband admitted coming home somewhat late on the occasion in question whereupon the wife accused him of having been out with girls; he denied it; she, he said, started to talk loudly and struck him; he grabbed hold of her hands and she then said that if he did not release her she would shout for help. He claimed that he did release her. The judge said he was satisfied that the wife had shouted for help and that the mother, when she arrived, found the respondent twisting the petitioner's left arm and pressing her forehead down but that there was a direct conflict of evidence as to what happened before hand and that he found "the evidence in this matter inconclusive".

30. Paragraph 18 of the petition stated that in the early summer of 1964 the wife asked the husband, who had just returned home after gambling all night, for some household money; that the husband said he had none but the wife later found $300 in the respondent's coat, which she took for overdue household bills; that when the husband discovered this he assaulted her on the bed, striking her with his first many times and demanding the return of the $300, that the wife agreed to return it at "the bus stop" if he would let her go; that at the bus stop the respondent dragged the petitioner across the street and over the kerb, causing her legs and one arm to be lacerated; that neighboure who saw this incident called the police and that the wife was so distressed that she went to stay with her parents for two weeks. The wife gave evidence supporting these allegations. The husband partially admitted them but said the $300 was money entrusted to him by a customer for the purchase of clothing which he specified; that he insisted on the return of the money which his wife refused; that when she left the house he followed her to the bus stop insisting on its return; that he asked her to return, because it was so embarrassing to quarrel in the street, that she started to return but slipped on the pavement and fell, causing abrasions to her arm and leg; that she lost her temper, blamed the respondent for her fall, and, on returning home, in an excess of anger broke all the glasses in the house; and that when a policeman came, on hearing the noise, the wife sent him away, saying it was only a domestic quarrel.

31. Dealing with these issues the judge said:

"Here again there is a direct conflict of evidence as to what actually occurred. Often one is able to form an opinion as to the credibility of a witness by his or her demeanour in the witness box. I have been unable to form any such opinion in this case since it appeared to me that from time to time both parties were not entirely truthful, or, alternatively, were exaggerating, in their evidence to the court. Doing the best I can with the evidence as to this incident I think it is more than probable that the petitioner's testimony is true, that the respondent had in fact been out .... playing mahjong all night ..... That the respondent was angry that his wife had removed the money from his pocket and refused to return it to him, I have no doubt. Whether he accompanied her to the bus stop ..... or whether he followed her ..... seems to me uncertain. It is, however, clear that they were both together at the bus stop. On the evidence it seems to me more probable than not that the respondent did in fact try to pull or drag the petitioner back to the house and that the minor abrasions ..... were caused ..... by her being dragged along the ground after she had fallen down while he was pulling her.".

32. The petition contained allegations of indecent assault on the wife's sister who was living with them and of rape or adultery. Evidence on the matter was given by the parties and the wife's sister. The judge found that there had been no such assault and counsel for the appellant has not contested this. There was, however, no finding on the allegation of adultery or the evidence adduced in support of it, although the judgment gives the impression that, in rejecting the allegations of indecent assault and rape, the judge intended also to dismiss the allegation of adultery.

33. In paragraph 22 of the petition, it was alleged that since 1965 the husband had been addicted to gambling and, on a bout five nights a week, stayed out all night for this purpose. The husband refuted the wife's testimony to this effect and the judge dealt with the conflict of evidence in the following way:-

"I have already said that in my view it is probably true that the respondent was addicted to mahjong and that he did stay out late gambling more frequently than he should have done, and more frequently than he is prepared to admit. But I think it probable that the allegations by the petitioner that he stayed out all night about five nights a week is very considerably exaggerated.".

34. Evidence was given for and against the allegation in paragraph 23 of the petition that the husband had not supported the petitioner and the children according to his means. On this the judge merely said:-

"The respondent denies the allegation of failure to support the petitioner. He gave particulars as to his salary which varied from a maximum of $1,200.- per month for the one month of December, 1961, down to $450.- per month for the period from 1st of August, 1965, to the 26th of April, 1967. A...(illegibl) from paying the rent of $137.- per month he said, in effect, that he contributed as much as he could to the maintenance and support of the family. It is a matter for comment that as from May, 1966, the petitioner was herself earning an average of $1,500.- per month as a dance hostess; in marked contrast to the $120.- to $130.- per month she had previously been earning as a shop assistant.".

35. In paragraph 24 of the petition it was alleged that on eight or ten occasions the husband had removed the petitioner's clothing and her wedding ring without her consent and pawned them in order to pay his gambling debts. The answer to the petition denied the allegation about the clothes and the jewellery but went on to say that if he had pawned his wife's jewellery it was with her consent. The judge made no finding on the conflicting evidence given in regard to this allegation of pawning her clothes but, as regards the pawning of the ring he accepted the husband's testimony that, in place of the pawned ring, he had made up into the form of a ring for his wife a piece of jade which he had previously purchased and given to her, none of which had been put to the wife in cross-examination.

36. The wife in her petition alleged that she had contributed the whole of her salary for household expenses during marriage and that after the husband became unemployed in September, 1965, she had, in order to support the family, become employed as a dance hostess, a job which she disliked. The husband in his testimony denied that the wife had contributed the whole of her earnings for household expenses and alleged that she had been a dance hostess before their marriage and when they were living together. She denied that she had ever been a dance hostess and said he merely lodged in her parents house. The judge made no finding on these matters.

37. In paragraph 27 of the petition, the wife alleged that, when preparing to go to work one afternoon in January, 1967, the husband refused, to let her leave, assaulted her and insisted on intercourse with her, greatly to her distress. The wife gave evidence supporting this allegation, the husband denied it and the judge made no finding on it.

38. In paragraph 28 of the petition, the wife alleged that in late 1966 and early 1967 the husband, on numerous occasions insisted on having intercourse with her when she was exhausted after her work and that, when she refused, he threatened to get someone to "destroy her face" by throwing acid or by cutting her face with a ...(illegibl) blade or a broken bottle or to kill her. Her husband in his evidence denied these allegations, which had been supported by the wife's testimony, and the judge said:

"Allegations of this nature, made in support of a divorce petition, are very easy to make and difficult to disprove other than by the bare assertion that they are not true. On the balance of probabilities I am not satisfied that the petitioner's testimony as to the respondent's alleged threats to have her killed or disfigured has been proved.".

He made no finding ...(illegibl) the allegations about unreasonable demands for sexual intercourse.

39. At a later stage in his judgment, he said that, "by reason of the interesting and informative judgment of the Full Court in the case of HUI Shi...(illegibl) wing v. CHAN Yuk-lin⁽⁷⁾ he had found it necessary to deal in very much greater detail with each and every incident complained of ...(illegibl) he would otherwise have done", and ...(illegibl)luded his judgment by saying:

"Giving the most careful consideration to the evidence placed before me, and considering it against the pattern and background of the matrimonial life of the parties concerned, I have come to the firm conclusion that these allegations of cruelty, whether considered individually or cumulatively, have not been proved and that it would be quite impossible for one to say - and therefore quite wrong for me to hold - that the respondent's conduct or behaviour towards the petitioner over the ten years of their marriage has been such as to warrant or justify the granting of a decree nisi against him on grounds of cruelty.".

40. Whether, in respect of each allegation, the evidence has received the detailed consideration which the judge clearly felt he was giving to the matter may be open to question. In a number of instances, although the conflicting allegations are recounted in some detail, there appears to have been little or no attempt to resolve the conflict of evidence and, consequently, no finding of fact, whilst, in others, there is little or no reference to the evidence and no finding. True, in a number of such instances, though by no means all, the incidents are relatively trivial; they would, nevertheless, merit consideration as part of the general pattern and texture of the marriage and would have to be weighed together with the more serious allegations. The omissions and, on occasions, the nature of the language used must create grave anxiety as to whether, when the judge said that, because of a conflict of evidence, he was unable to make a finding, the effort and determination to balance the conflicting testimony and reach a conclusion attained the standard which can reasonably be expected from these who carry the responsibility of determining conflicts of this nature. The anxiety is such that I do not think this judgment can be allowed to stand but the question remains whether we must order a retrial or whether, having regard to the findings made by the judge and the evidence in the case, we have sufficient material on which we can properly reach a conclusion so as to avoid exposing the parties to the strain, quite apart from the expense to the public purse, which would flow from a retrial.

41. The judge did make the following findings:-

42. The other allegations were left in a state of uncertainty. The most serious of them appeared to be (i) the assault in public at the Golden Gate Studio, (ii) the husband's failure to support his wife and children according to his means, which led to her taking work as a dance hostess that she greatly disliked, (iii) the making of unreasonable sexual demands, (iv) the pawning of the wife's clothes and ring and (v) insistence on oral masturbation well knowing that this nauseated the wife. The judge's finding on the last mentioned negatived the use of force but otherwise left the matter open. It might, perhaps, be questioned whether the Golden Gate incident was left without a finding. Normally a judge's statement that he is unable to find that a petitioner had been assaulted in the manner to which she had testified or at all might well be regarded as a positive finding that he did not believe her evidence on this point but the approach revealed elsewhere in the judgment to those parts of the testimony where there was simply a conflict between the evidence of the petitioner and the respondent and no other evidence to disprove or confirm that of either, and the use by the judge of the same expression to describe his inability to determine the conflict of evidence about the number of tickets, impel me to the conclusion that, in this instance also, he was not prepared to choose between them.

43. Apart from the 5 matters just mentioned, the other allegations seem to be less important, although I would not be disposed to share the judge's view that the accusation of keeping a photograph of a girl from the husband's place of business in his pocket-book and, later, in the pocket of his pyjamas after he had been questioned on it and promised to return it to the donor was, in the circumstances of this marriage, so trivial as to require no further attention.

44. As Huggins, J. and I are not in agreement as to the possibility of making further findings, it is undesirable that I should say much more about these issues of fact, though I think it appropriate to give some indication of the reasons why I would have thought it open to us to make findings which could avoid the necessity for a new trial.

45. Appellate courts are notoriously slow to reverse the findings on fact of a court of first instance but in the instant case we are not faced with such an obstacle in respect of those matters where no finding was made and, recently, the Full Court, in Hui Shiu Wing v. Cheung Yuk Lin⁽⁷⁾, did not hesitate in somewhat similar circumstances to make findings of fact on matters left undetermined by the trial judge. Moreover, we are not faced with the difficulty that the judge attached any particular importance to the demeanour of the witnesses on either side although his findings would appear to reflect somewhat more adversely on the husband than on the wife. After taking due account of the judge's view, as reflected in those matters where he made a positive finding, it seems to me that on the balance of probabilities - the test adopted in Blyth v. Blyth⁽⁸⁾ - findings favourable to the petitioner could have been made on the 5 matters which I have mentioned and that it would have been possible then to consider whether these, together with the matters on which the judge had made a positive finding, revealed conduct of such a grave and weighty nature as to make cohabitation virtually impossible (Saunders v. Saunders⁽⁹⁾). It has been said that the objectionable nature of such conduct must be much higher than the ordinary wear and tear of married life, (McEwan v. McEwan⁽¹⁰⁾) and that the defaulting partner must have behaved in a way which the other spouse should not, in the circumstances, be called upon to endure (Safier v. Safier⁽¹¹⁾). Possibly, with further findings these standards could have been met although there might have been difficulty in satisfying the requirement that the misconduct must cause injury to health or reasonable apprehension of such injury. In Mulhouse v. Mulhouse⁽¹²⁾ Sir Jocelyn Simon, in a passage subsequently quoted and impliedly endorsed by the Divisional Court in Hudson v. Hudson⁽¹³⁾, said:-

"it must be proved that there is a real injury to the health of the complainant or a reasonable apprehension of such injury. Of course, if there is violence between the parties the court will not stop to inquire whether there is a general injury to health; but in the absence of acts of violence which themselves cause or threaten injury, the law requires that there should be proved a real impairment of health or a reasonable apprehension of it.".

In the instant case, there were acts of violence, of which two, those at the Golden Gate Studio and at the bus-stop, occurred in public and in circumstances which must have been particularly humiliating and offensive to the wife but question might arise as to whether the violence contemplated by Sir Jocelyn Simon was of a more serious and vicious character. The wife also gave evidence that her health was impaired although this was not supported by any medical testimony and the judge made no finding on the issue.

46. As there is a likelihood that these matters may be the subject of further proceedings I think it would be undesirable to say more about them at this stage.

47. In accordance with the provisions of the Full Court Ordinance, as Huggins, J. and I both take the view that the judgment in the court below should be set aside, but are not agreed that the Full Court should, on the material now before it, decide the issues arising between the parties, the order of the Full Court will be that the judgment in the court below be set aside and the case sent back for retrial; the appellant to have the costs of the appeal, which will be taxed in accordance with Regulation 15 of the Legal Aid Regulations; and the parties will have liberty to apply.

Representation:

(...illegible)(...illegible)

(1) (1962) H.K.L.R. 682.

(2) (1953) 1 W.L.R. 1455.

(3) (1953) 1 W.L.R. 1472.

(4) The Times, 1st February, 1958.

(5) (1965) 39 A.L.J.R. 288.

(6) The Times 1.11.68.

(7) Civil Appeal No. 40 of 1967.

(8) (1966) 2 W.L.R. 634.

(9) (1965) P. 499, 504.

(10) 108 S.J. 198.

(11) 108 S.J. 338.

(12) (1964) 2 All E.R. 50, 56.

(13) (1965) 1 W.L.R. 567.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO.22 OF 1968

(On Appeal from Divorce Case No.37 of 1967)

-----------------

Coram: Hogan, C.J. & Huggins, J.

Date of Judgment: 23 January 1969

-----------------

JUDGMENT

-----------------

Huggins, J:

48. The first sentence in the first ground of appeal suggests that a judge is under an obligation to make a general decision that a witness is either truthful or untruthful. That is manifestly an untenable proposition and the contention advanced in argument has been that there is a duty on a judge to decide every material issue of fact and to that extent, to decide whether each witness is telling the truth. Then it is said that in deciding a single issue of fact as distinct from deciding whether all the necessary facts have been proved the rule as to onus of proof is irrelevant. In particular, it is said that where on a charge of cruelty the question is whether a particular assault which is alleged was committed or not the judge must either decide that it was committed or that it was not committed and may not say merely that there being an equal balance of probability the burden of proof has not been discharged. I am not quite clear at what precise stage in the present case it is suggested that the burden of proof could become material, but, with respect, it seems to me that this argument does not represent the rule which has been applied for centuries in the courts in England, and in Hong Kong since the founding of the Colony. I have never before heard it suggested that the onus of proof does not apply at every stage in establishing a case and I do not require authority to satisfy me that the submission on behalf of the appellant cannot be right. I accept, of course, that a judge must decide every issue which is material to a proper determination of the case but it is well to bear in mind that in the administration of human justice the question is not whether a story is true but whether the judge has been persuaded that it is true. One hopes that in the vast majority of cases this is a distinction without a difference but there may be cases where the limits placed upon the judge by his humanity leave him with two or more inconsistent stories which appear to him equally worthy of belief. Although the authority which is vested in the judges comes ultimately from God the judges, along with the rest of mankind, enjoy only a limited revelation of truth. As I see it the only foundation for allowing of different degrees of proof is this very limitation on the power of the human mind to grasp the truth. When one talks of proof on a balance of probabilities one is not talking about the inherent probabilities of the stories themselves but of the probabilities that any one of them as presented to the court is true: one is not, as it were, weighing so many pages of printed matter but weighing all the factors which might tend towards belief - inherent credibility, demeanour of the witnesses, corroboration and so forth. It has been questioned whether in a case where two witnesses of equal credibility tell contradictory stories of equal inherent credibility the judge is entitled to withdraw credence from the one witness solely out of regard to the opposing story, which (ex hypothesi) he does not believe. I can understand its being said that to do so is illogical but I am none the less sure that that is how the human mind works. Disbelief of a witness does not necessarily involve belief in a witness who says the opposite: it may do so but it may also indicate nothing more than...(illegibl). Suppose that one dark night as a result of a flying accident one were to find oneself on a road in a strange land. Seeing two passers-by one asks the direction of the nearest town. The first says "This way" and the other says "No, that way". Assuming both to be equally credible what is one to do? Does one believe the first because he was the first? If the second had not been there one would have assumed the first was telling the truth, but faced with a dilemma surely one either sits down to wait for further enlightenment or, literally or metaphorically, one tosses a coin. Neither of these courses is open to a judge who finds himself benighted or befogged in a wilderness of evidence and it seems to me that if a decision is to be reached at all without his being dishonest to himself he must be permitted to fall back on the rule that the party on whom lies the burden of proof must tip the scales, be it never so little. My Lord has said that a litigant on whom rests the burden of proof and who has produced evidence which, if believed, would be sufficient to discharge that burden is entitled to a positive decision whether that testimony is or is not entitled to credence. I do not think there is any difference of substance between us here: it depends what one means by "entitled to credence" and I take it to mean that the testimony is such as to tip the scales in favour of the party whose case it supports. My Lord has recognised that a judge may accord to evidence adduced by the opponent a measure of belief sufficient to justify withdrawing credence from the evidence of the affirmant. It may be, therefore, that the other difference between us on this part of the case is in reality nothing more than a matter of words, for one then has to ask what measure of belief in the evidence of the opponent would justify such withdrawal of credence from the evidence of the affirmant. It follows from what I have said that in my view any degree of 50% or more would be sufficient. The result is that a judge may say "the scales are even and I am not satisfied that the affirmant's evidence is true" or he may say "the scales are even and I am unable to say where the truth lies". The first formula or words to the like effect are to be found time and again in the reports in contexts which show that they constitute a sufficient adjudication. The second formula conveys exactly the same sense and it seems to me it would not be reasonable to hold that it would not constitute a sufficient adjudication.

49. Let me say here that I share my Lord's recognition of the possibility that a judge may too readily give up the struggle to find some inequality in the evidence of two parties who have advanced directly conflicting stories. This is a possibility which the judge must guard against but the fact that the possibility exists does not seem to me justification for refusing to give full effect to the principal affirmanti, non neganti, incumbit probatio. Her Majesty's subjects do indeed look to Her Majesty's judges to recognise where the truth lies and to make findings of fact to which the law can be applied. To that end those whose duty it is to advise Her Majesty upon the appointment of judges have a heavy responsibility in selecting persons with the qualities necessary for the performance of those functions and no one should accept the appointment of judge unless he is willing to perform those functions to the limit of his ability. A judge who cannot be relied upon to do that and not to flout his judicial oath by making no proper attempt to make findings from the evidence adduced before him ought not to be upon the Bench. For myself I do not question that there are judges wiser than I who are better able to discover the truth but even the wisest must sometimes be faced with an issue of fact which on the evidence adduced appears to him irresolvable. The irresolvability is only apparent, for an ultimate solution is always available if required by application of the rule as to onus of proof and only if a judge having failed to make a "positive" finding of fact then fails to apply that rule ...(illegibl)an he properly be said to have failed to adjudicate upon the issues of fact or to have left the conflict unresolved. How often or how rarely it may happen that a judge has to resort to the burden of proof to resolve a dispute seems to me immaterial so long as the judges do their best. I add only that I concern myself here with the law as I find it and do not stop to consider the merits or demerits of the accusatorial system.

50. My Lord has analysed a number of cases which impinge to a greater or lesser extent on the question before us and I do not propose to refer to them at length. Bray v. Palmer⁽¹⁾ is of little assistance because the error there made by the learned judge was in over-simplifying the issues: he assumed that one party must have been at fault and the other not at fault, whereas there was a possibility that both were at fault. The passage which my Lord has cited from Nesterczuk v. Mortimore⁽²⁾ appear to me entirely consistent with the view which I have expressed and I cannot believe that the meagreness or abundance of the evidence is per se material: the scales may rest equally balanced whether the pans contain much or little although it is, of course, true that the more evidence there is the less chance there is of an equal balance at the end. The only report of Onassis v. Vergottis which is available to us is that in The Times Newspaper of 1st November 1968 and I am not persuaded that their Lordships intended to hold that a positive finding of fact must be made on every issue. Where there are two conflicting stories one of which must be true and one untrue it is natural that the judge will ask himself "Which do I believe?" and in the majority of cases he will decide in favour of one or the other. In doing so he ipso facto answers the question "Do I believe the party on whom lies the burden of proof?", but the fact that the natural question is "Which do I believe?" should not lead us to forget that it is the second question which is the vital one. In summing up to a jury in a criminal case it is often a wise precaution to remind them that a conviction must be based upon the strength of the evidence against the accused and not upon the weakness of the case for the defence. The basic principle is no different in a civil case where the degree of proof needed is proof on a balance or probabilities.

51. In the present case counsel for the respondent has been forced to concede that upon certain matters the learned judge did not adjudicate. I will return to these later. For the moment I am concerned to consider those other matters upon which counsel for the petitioner says that there has been no adjudication and to ascertain to what extent (if any) his complaint is justified.

52. As to the incident involving the tearing up of a cinema ticket the judge says that he is unable to find that the respondent assaulted the petitioner as alleged or at all. The argument for the petitioner appears to me to equate "I cannot" with "I will not". I entirely agree that the judge who says in relation to a material issue of fact "I will not decide" or even "I do not decide" is failing in his duty, but I would want some evidence that there was a failure to adjudicate, whether that failure was wilful or not: the absence of any reference to balancing the one against the other would be sufficient evidence. However, where the judge has weighed one story against another and found either expressly or by implication that one story is as credible as the other it seems to me that common sense drives one to the conclusion that the judge is not satisfied that the story of the party on whom lies the onus of proof ought to be believed. This was the view taken by Mr. Justice Rigby in Ho Yau-yee v. Yu Ming⁽³⁾ and to that extent I find his judgment convincing. In my view what the judge said in the instance now being considered amounted to a finding that the assault had not been proved and that finding was all that was required of him.

53. As to the circumstances surrounding the assault by the respondent upon the petitioner at 50 Robinson Road in March 1964 the learned judge found the evidence "inconclusive". It is argued that this indicates a refusal rather than an inability to draw a conclusion and further it seems to be suggested that the judge was weighing the evidence in vacuo. I cannot agree. To say that evidence is inclusive suggests to me that the judge has made a conscious effort to choose between the conflicting stories. Even if (which I doubt) his language can fairly be construed as indicating that he then gave up at the moment he saw that they were inconsistent I think it can equally be construed as indicating that he did not stop at the first hurdle but went on to discharge the duty to adjudicate which everyone agrees was upon him. If there be any ambiguity then the words of Lord Greene, M.R. in Norman v. King⁽⁴⁾ seems to me most pertinent:

"I think that where there are two possible, and, indeed, equally possible, meanings to be attributed to (the judge's) language it is the duty of this court to choose that which will support his decision and to give him, so to speak, the benefit of the doubt".

It is true that the judgment in the case at Bar is remarkable for the number of issues upon which no adjudication was made but I am not persuaded that this is justification for not giving the language of the learned judge a favourable construction where that is possible. Moreover, it seems to me quite wrong to assume that the judge considered the evidence in vacuo or, as I described it earlier, as though he was weighing so much printed matter. There is a grave temptation for an appellate court, in its anxiety to remedy error, to approach the words of a trial judge with an excess of subtlety and in my view it is a temptation which must be resisted. When considering a charge to a jury I think one ought to ask oneself how the judge's words would have been understood by the jury and when considering a judgment I think one ought to ask whether there is any real possibility that the judge has misdirected himself or failed to do what is manifestly required of him. For my part I am satisfied that the judge here found that the circumstances of the assault had not been proved to be such that self-defence might not excuse the assault and therefore that the assault was not relevant to the allegation of cruelty.

54. As to the incident when the petitioner found $300 in the respondent's pocket and removed it the judge said "it is more than probable that the petitioner's testimony is true" and upon the question whether the money was the proceeds of gambling or deposit money paid to the respondent by a client he said "the former appears to me to be more probable explanation". Again, he said "on the evidence it seems to me more probable than not that the respondent did in fact try to pull or drag the petitioner back to the house and that the minor abrasions which she sustained were caused ...... by her being dragged along the ground after she had fallen down while he was pulling her". It has been argued that the judge was not there saying in effect that the burden of proof had been discharged to the extent indicated and no more. As I see it the only possible basis for such an argument would be an assertion that the words indicated an attempt by the judge to weigh two stories without regard to the witnesses who told them and all the other factors relevant to the weighing of evidence. For the reason which I have already given I do not think that is a proper approach to the language of the learned judge.

55. I shall not deal with all the other incidents for in my view the language used does not differ materially from that which I have already considered. I will therefore turn to the matters upon which it is conceded that there were no findings:

56. I have set out hereafter the few matters upon which clear findings were made. The learned judge said at the end of his judgment:

"By reason of the interesting and informative judgment of the Full Court in the case of Hui Shu Wing v. Cheung Yuk Lin alias Loretta Cheung, I have found it necessary to deal in very much greater detail with each and every incident complained of by the petitioner than I would otherwise have done."

I am not sure what he had in mind because as I understand the three separate judgments of the Full Court in Hui Shu-wing v. Cheung Yuk-lin⁽⁵⁾ the court did not lay down any new principle but merely applied the law as it then stood to the facts of the case. The main point decided was that the trial judge was wrong in considering in isolation some of the incidents relied upon as constituting cruelty without paying sufficient regard to their cumulative effect upon the relationship of the parties to the marriage. With respect to the judge below in this case it is by no means clear that he has not misdirected himself in the same way. He summed up the case by saying that "these allegations of cruelty, whether considered individually or cumulatively, have not been proved". There was only one allegation of cruelty, based on allegations of various incidents. What the learned judge had to consider "individually and cumulatively" were such of those allegations relating to the various incidents as he found to have been proved and if what he meant by the sentence quoted was that his findings of fact did not justify a conclusion that the respondent was guilty of cruelty then there was no such misdirection as there was in Hui Shu-wing v. Cheung Yuk-lin⁽⁵⁾. However, I am reluctantly driven to the conclusion that there is a real possibility here that there was a misdirection. Apart from the passages cited, in relation to three of the incidents as to which no findings were made the learned judge expressed the view that they were "so trivial" or "so relatively trivial" as to be unworthy of further reference. Although concerning two of them he did speak of their possible cumulative effect in relation to the alleged pattern of conduct of the parties and found that they fell far short of conduct amounting to cruelty, the language he used suggests that he may nevertheless, while having considered their cumulative effect inter se, not have considered their cumulative effect together with the other allegations which he found to be proved. As it seems to me any misconduct, however trivial, must be thrown into the scales at the end of the day. Whether the incidents were as trivial as the learned judge considered them to be is beside the point at this stage.

57. The judge went on to say that there were "two tests of cruelty", which he described as being equally important. There may here have been no misdirection although the phrase I have quoted taken by itself would not in my view be accurate. The tests which he describes are in truth not separate and distinct tests of cruelty but are tests for the two constituents of cruelty, namely cruel acts and injury or reasonable apprehension of injury to health. It will often be convenient, though it is not, I think, essential, to decide first whether there is injury or apprehended injury to health. The cruel acts have to be considered in the light of the respondent's own conduct and then one has to decide whether they amounted to conduct which the petitioner ought not to be called upon to endure. The learned judge appears to have intended to approach the matter by asking himself first whether the conduct of the respondent was sufficiently serious for him to say that the petitioner ought not to be called upon to endure it. Because of the conclusion he then reached he did not go on to ask himself whether the petitioner had suffered, or had reasonably apprehended, injury to her health.

58. Here it is necessary to deal with a further submission on behalf of the petitioner, that some of the grounds of complaint against the respondent were sought to be negatived by matters which had not been pleaded. The petitioner alleged an assault by the respondent in March 1959 when she returned home late from work because she could not catch a bus. She further alleged that her hours of work were 10.30 a.m. to 11 p.m., although the petitioner did not say at what time she normally arrived home. At the trial the respondent alleged that the petitioner did not return home until 12.30 a.m. and it is suggested that he should not have been allowed to make such an allegation without having pleaded it in his Answer. Counsel for the petitioner submits that the matter went to credibility: if it had been pleaded he would have been put upon enquiry and he might have called evidence to show the time was in fact earlier than 12.30 a.m. The contention is that in matrimonial proceedings any intention to put forward a different version of the facts pleaded in the petition must be indicated by the answer: it is not enough merely to deny the substance of the petitioner's allegations. The contention is based upon r.16 of the Matrimonial Causes Rules 1957, which were in force at the material time, and it is said that the decision in Finch v. Finch⁽⁶⁾ was made without reference to that rule. The material part of the rule reads:

"A respondent ...... who has entered an appearance to a petition and who wishes to defend all or any charges made therein, or who, notwithstanding that he does not wish to defend such charges, wishes to make against the petitioner any allegation which might be a defence thereto, shall ...... file an answer to the petition ......".

In my view that does not go as far as counsel contends. The vital words appear to me to be "which might be a defence". The version of the facts told by the respondent was not so much a "defence" within the meaning of the rule as evidence supporting his denial of the petitioner's charge and as such was properly not pleaded. The respondent did not allege that the petitioner treated him with cruelty and I think he was entitled to suggest that she was herself of ungovernable temper and therefore not to be believed as to events said to have occurred when she had lost her temper.

59. It was similarly argued that the respondent should not have been allowed to say that he asked the petitioner to prepare his bath and/or his food late at night only when she was already awake upon his return home. No finding was made upon that point but in my view it was, for the reasons just given, not improper to allow such evidence to be adduced. It was at one point suggested (and rightly suggested Porr v. Porr⁽⁷⁾) that consent, when relied upon as a defence to a charge of cruelty, must be pleaded but it was said that consent to the pawning of the petitioner's engagement ring and clothes had not been pleaded. It is now conceded that such consent was pleaded.

60. It has been suggested that we are in a position where it would be proper for us to make findings on the matters upon which no adjudication has been made. Unhappily I find myself not in agreement with my Lord the Chief Justice on this point. Here we are at once in a difficulty because another complaint made against the judgment in the court below is that evidence was adduced on behalf of the respondent which had never been put to the petitioner. This evidence related in part to matters upon which an adjudication was made and in part to matters upon which an adjudication was not made. It is suggested that in weighing the evidence we would have to make allowance for the fact that the petitioner had no opportunity to deny these allegations, but I find it difficult to see how we could decide what allowance ought to be made. I have hesitated as to whether it would be proper for us to make a finding that there was injury or apprehension of injury to health on the basis of Sir Jocelyn Simon's dictum in Mulhouse v. Mulhouse⁽⁸⁾. The authorities show, however, that not every act of violence by a spouse is sufficient to constitute cruelty: one must consider the nature of the violence, the circumstances accompanying its use and what have been described as the powers of endurance of the victim. Although Sir Jocelyn Simon's dictum was applied in Hudson v. Hudson⁽⁹⁾ there was in that case evidence of "many physical assaults" involving "substantial violence". While I accept that the court should not be slow to assume that violence has caused injury to health all the circumstances must be considered and in the present case I am not satisfied that all the circumstances have been sufficiently established to warrant our making a finding. As to the othe issues upon which no finding has been made, after the most anxious consideration I am driven to the conclusion that it would not be just for us to attempt to adjudicate upon them. In a case where the major part of the issues had been adjudicated upon and the evidence on what remained was tolerably clear I might be disposed to fill the gap but here, it seems to me, there is too much remaining undecided and too much uncertainty as to the credibility of the witnesses for us to be sure that justice was being done. I realise how unfortunate it will be if the parties (or the Legal Aid Scheme, as the case may be) should be put to the expense and unpleasantness of a new trial. The observations of Lord Justice Denning in Thompson v. Thompson⁽¹⁰⁾ are not entirely in point because the Court of Appeal was there dealing with an interlocutory application to strike out parts of the Answer: although the court held that there were defects in the Answer, there were similar defects in the Petition and the Commissioner who was to try the suit would be able to see that justice was done in spite of all these defects, so that the expenditure of time and money necessary to put the pleadings in order would not be justified. In the absence of a finding of injury to health it seems to me that we could not grant a decree upon the findings which have been made by the learned judge. He found that in March 1959 the respondent chased the petitioner out of the room when he was brandishing a high-heeled shoe. In the summer of 1964 there was an incident during which the petitioner took $300 from the respondent's pocket and, having left the house, was dragged from the bus-stop by the respondent and sustained slight injuries. The pawning of the petitioner's ring and clothes cannot be excused on the ground that the respondent gave her another ring but even throwing into the balance the fact that the respondent stayed out late gambling more frequently than he should have done I cannot say that the case is a strong one. The respondent's conduct was must reprehensible but the incidents covered a period of 8 years and although this may be a border-line case in my view there was not enough to form the basis of a finding of cruelty.

61. Having come to this conclusion I think the less that I say about the merits of the case the better. I would allow the appeal and direct a new trial.

23rd January, 1969.

Representation:

...(illegible) Basto (Tso & Co.) assigned for the Petitioner.

...(illegible) Suffiad (Hastings & Co.) assigned for the Respondent.

(1) 1953 1 W.L.R. 1455

(2) (1965) 39 A.L.J.R. 288

(3) 1962 H.K.L.R. 682

(4) 1946 1 All E.R. 339, 341.

(5) Civil Appeal No.40 of 1967.

(6) 1960 2 All E.R. 52

(7) 1963 1 All E.R. 213

(8) 1964 2 All E.R. 50, 56.

(9) 1965 2 All E.R. 82

(10) 1957 1 All E.R. 161, 168.