Wong Chan Ying-han, Julia v. Wong Chik-wai
Read the full judgment text of CACV 24/1972 on BabelCite. This Court of Appeal judgment was delivered on 6 June 1973.
1. The parties are Chinese. I shall refer to them as "the husband" and "the wife". They were married on 3rd July 1968. The husband was than 28 and the wife 26 years of age. There is one child of the marriage, a son born on 6th February 1969.
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CACV000024/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 24 OF 1972 (On appeal from Divorce Action No. 236 of 1971) -----------------
----------------- Coram: Full Court (Blair-Kerr, S.P.J., McMullin and Pickering, JJ.) Date of Judgment: 6 June 1973 ----------------- JUDGMENT ----------------- Blair-Kerr, S.P.J. 1. The parties are Chinese. I shall refer to them as "the husband" and "the wife". They were married on 3rd July 1968. The husband was than 28 and the wife 26 years of age. There is one child of the marriage, a son born on 6th February 1969. 2. The parties set up their matrimonial home in the house of the husband's family. This household consisted of the husband's father, the husband's step-mother, two half-brothers and three half-sisters. One of the half-sisters is a teenager named WONG Sook-hei, also known as Betty Wong. In 1972 she was over 17 years of age. It would therefore appear that in 1968 she was over 13 years of age. 3. The wife's petition for an order dissolving the marriage was filed on 24th, and served on the husband on 27th, July 1971. Her allegation was that between July 1968 and July 1971, the husband had frequently committed adultery with WONG Sook-hei, his half-sister. Why his Answer, filed on 7th April 1971, the husband denied that he was guilty of adultery. He prayed that the court would dismiss the wife's petition; and he also sought an order for restitution of conjugal rights. Therefore, when the matter came on for hearing before the learned judge on 21st March 1972, the issue was simply: Was the husband guilty of adultery with his half-sister, WONG Sook-hei? 4. I notice that the parties gave evidence on affirmation. There is nothing on the record to indicate whether, and if so why, they objected to taking an oath(1); and presumably they do not profess the Christian religion. 5. The wife gave her evidence-in-chief on 21st March 1972. She said that in June 1971 she had heard certain rumours concerning the husband and his half-sister; but that she dismissed them from her mind. However, WONG Sook-hei went to England on 19th June to further her studies; and at the end of June the wife's suspicions were aroused on finding several letters addressed to the husband from WONG Sook-hei in England. These letters were not such as any sister, or half-sister, would write to a brother. In one letter written on the day she arrived in England, WONG Sook-hei spoke of letter-writing being the only way to "maintain our love until we are reunited again". She said that she felt the "agony of separating". She went on to say: "I do not like you to be intimate with that 'ha bar dog'" [a reference to the wife, according to the evidence] and Wong signs the letter "your beloved wife". The other letters contained similar phraseology such as: "I recall that in June and July last year our love was then budding"; "those sweet days in the past 10 months"; "darling, I love you ..... when I am 21 years old, I shall never leave you; you will be my husband forever ..... Our first wedding anniversary is approaching." 6. One can well imagine the wife's state of mind on reading such letters. She made photostat copies of them; and, as far as one is able to judge from her evidence, it was about 5th July that she had a long discussion with the husband about his relations with WONG Sook-hei. I say "as far as one can judge" because at that stage in the case it was clearly not a matter of importance to the wife whether the discussion with her husband had taken place at the beginning of July or in the middle of July. What mattered to her was the fact that he confessed to her that he had been committing adultery with his half-sister for several years, even before his marriage. Furthermore, he said to the wife that he had no intention of giving up his illicit, and criminal, relationship, and he indicated his intention of having "two families", that is to say, to treat WONG Sook-hei as a kind of secondary wife or mistress and to continue to live with the wife, as husband and wife; and he had the effrontery to tell the wife that he had had sexual intercourse with Wong more often than with the wife because he loved Wong more and because Wong had "a better figure". 7. After this conversation, the wife must have been convinced of the husband's adultery with Wong. Wong returned from England on 13th July. Her mother found some letters from the husband in her luggage. These letters were partly in code; but even in the "clear" parts, one comes across such expressions as: "Without you by my side, everything is just like a desert without life"; and what appears to be a translation of a part of the coded portion of one letter reads: "My dear darling wife, I am thinking of you all the time and cannot sleep ..... Your loving husband." 8. The contents of these letters came to the wife's knowledge on or about 15th July 1971; and, of course, they confirmed what she already knew, namely that the husband had been carrying on this adulterous relationship with her sister-in-law. 9. The wife consulted her solicitors on 20th July; and she left the matrimonial home on 27th July 1971, the day the petition was served on the husband. 10. The wife's state of mind at this time is revealed by what she said towards the end of her examination-in-chief. The judge's note of her evidence reads:-
11. At this stage, the case was adjourned to 4th April; and by then Mr. Zimmern had been briefed by the husband's solicitors. It is clear that he thought little of the husband's denials of adultery on the pleadings; and he very properly fastened on to the wife's last answers in examination-in-chief. The record of the wife's answers is, unfortunately, in narrative form; but it would appear that the cross-examination ran something like this:
12. At this stage of the case, it may have dawned on the wife that the precise dates when the last acts of intercourse took place might be a matter of some importance. At any rate, it appears that when Mr. Zimmern returned to this aspect later in cross-examination, the wife gave this evidence:
The answers Mr. Zimmern got from the wife a little later in his cross-examination must have left him in grave doubts as to whether his client's denials that adultery took place would be believed. The judge's note reads:-
13. In Re-examination by Mr. Asome, the wife was asked what she meant when she said in cross-examination that she and the husband lived "as man and wife" till 27th July. She said: "Living as man and wife means living together in the same room." It appears that she was then asked specifically the date on which the last act of sexual intercourse took place. The record of her answer reads:
14. The hearing was adjourned to 6th April 1972. The husband gave evidence. Mr. Asome's cross-examination was completed by lunch time. When the court resumed at 2.30 p.m. Mr. Zimmern was granted leave to amend the husband's Answer by the addition of the following paragraph:-
No application was made to recall the wife or the husband for further examination, or cross-examination in the light of this important change in the husband's case as pleaded. Counsel then addressed the court; and a reserved judgment was delivered on 10th April 1972. 15. The judge accepted the wife's evidence. He said:
The appeal papers do not include a note of counsel's closing addresses; but before this court, counsel informed us that, in the court below, counsel for the wife argued the case on the lines that although there may have been intercourse between the parties after the wife suspected, or even after she must have been convinced, that the husband had been guilty of adultery, there was no condonation because, in the words of s.51(2) of the Matrimonial Causes Ordinance, such "continuation or resumption of cohabitation" as may have occurred was "with a view to effecting a reconciliation". Apparently, the judge was not asked to consider whether, looking at the evidence as a whole, and apart altogether from s.51(2), there ever was condonation in the true sense in which that term is understood in this branch of the law. His judgment reads:-
I entirely agree; and Mr. Bernacchi, counsel for the wife, did not attempt to argue otherwise in this court. What he did invite us to do was to scrutinize the evidence with the utmost care in the light of the change in the husband's pleadings at the end of the trial after all the witnesses had been examined and cross-examined, the conduct of the case in the court below, and in the light of the general principles laid down in leading cases; and Mr. Bernacchi's submission was to the effect that no court could reasonably infer from her conduct that the wife had really condoned the husband's adultery. 16. The general principles which guided courts in the days when condonation was a matter of importance (which, happily, it no longer is) were well established. The learned editors of the 11th Edition of Rayden on Divorce say (p.1136) :-
And at pp.1138/9, the learned editors say :-
17. Now, in applying these principles to the facts of this case, perhaps the most important fact which has to be borne in mind is that, despite the wife's exhortations, the husband refused to give up his adulterous, indeed incestuous, association with his half-sister. So infatuated was this man that, short of suicide, he proposed to set up two homes; and his attitude never changed. It is equally clear on the wife's evidence (which was accepted by the judge) that the wife never for one moment agreed to accept such a situation. The judge found that there was no intercourse on 26th July. In cross-examination, she did say that there was intercourse after the contents of the husband's letters to Wong had come to her notice i.e. about 15th July. But, later in cross-examination, and certainly in re-examination, she emphasised that the last act of intercourse was in the beginning of July. Furthermore, although no court would accept, in their literal sense, her reference to having been "forced" to submit to sexual intercourse, it is obvious that this was simply another way of saying what she had already said in her examination-in-chief namely that when she had refused the husband's demands, he had told her it was her duty to submit to intercourse whether she liked it or not. 18. In these circumstances, how can it possibly be said that, in submitting to his demands, she forgave the husband, and remitted his wrong when she knew perfectly well, on his own admission to her, that he had no intention of giving up his adulterous association with his half sister, and that she (the wife) would never, under any circumstances, accept such a situation? For myself, I cannot bring myself to believe that there was condonation in this case. 19. For these reasons, I would set aside the orders dismissing the wife's petition and granting the husband an order for restitution of conjugal rights, and grant the wife a decree nisi for the dissolution of her marriage to the husband. Subject to anything which may be urged by counsel. I would be prepared to order that the decree be made absolute forthwith. 20. The wife is not now claiming custody of the child of the marriage; and the only remaining question is maintenance. In my view this question should be referred to the Registrar for his determination.
Representation: B. Bernacchi, Q.C. and M. Asome (C.C. Lee & Co.) for appellant. A. Zimmern (Kwong, Lam & Chan) for respondent. (1) Vide s.7 of the Oaths and Declarations Ordinance no.20 of 1972. |