Hui Shiu Wing v. Cheung Yuk Lin
Read the full judgment text of CACV 40/1967 on BabelCite. This Court of Appeal judgment was delivered on 27 February 1968.
1. On 6th September 1965 Hui Shiu Wing (whom I shall refer to as 'the husband') filed a petition for the dissolution of his marriage with Loretta Cheung (whom I shall refer to as 'the wife') on the ground that she had deserted him without just cause. The wife was then engaged on a course of study in England; and the petition was served upon her when she returned to Hongkong some time during the summer of 1966. On 16th September 1966 she filed an answer in which she averred that she was not guilt
Cited by 11 cases
|
CACV000040/1967 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CIVIL APPEAL NO. 40 OF 1967 (ON APPEAL FROM D.J. ACTION NO.52 OF 1965) -----------------
Coram: Blair-Kerr, J. Date of Judgment: 27 February 1968 ----------------- JUDGMENT ----------------- 1. On 6th September 1965 Hui Shiu Wing (whom I shall refer to as 'the husband') filed a petition for the dissolution of his marriage with Loretta Cheung (whom I shall refer to as 'the wife') on the ground that she had deserted him without just cause. The wife was then engaged on a course of study in England; and the petition was served upon her when she returned to Hongkong some time during the summer of 1966. On 16th September 1966 she filed an answer in which she averred that she was not guilty of desertion and that she had good cause for withdrawing from cohabitation in that since the celebration of the marriage the husband had treated her with cruelty. She also cross-petitioned for divorce on the ground of his alleged cruelty to her and on the ground of constructive desertion by him in that by his conduct he had evinced an intention to drive her from the matrimonial home with the object of bringing cohabitation between them permanently to an end. 2. The petition and cross-petition were heard before Rigby J.; and, on 28th August 1967, the learned judge delivered an oral decision (which has since been transcribed, and it is before this court) in which he granted a decree nisi for the husband and dismissed the wife's cross-petition. From this decision, the wife has appealed on three grounds, namely:-
3. The husband was described as quick-tempered, temperamental and highly strung, and the judge appears to have accepted this as an accurate description of him. In evidence, the husband said that during the three years prior to his marriage he had been taking a drug named Milltown three times a day to quieten his nerves and to induce sleep. Counsel for the wife intimated that he proposed to call a doctor, who is described in the record as a "psychologist" (the question whether this is a typing error for" psychiatrist" was not explored on this appeal) to give general evidence as to the effect upon the human body of tranquillising drugs. This doctor had not examined the husband. It is not clear whether counsel for the husband objected to the doctor being called as a witness. The judge's note records him as having said: "All (this doctor) would say is as to the possible effects in general of tranquillisers." How he knew what his opponent's witness was going to say is not clear. At any rate, without hearing what the doctor had to say, the learned judge ruled that the evidence of this doctor although strictly admissible, would be of no assistance to him in the determination of the issues before him; and he intimated that, if the witness were called, he would bear this in mind in the matter of costs. Upon hearing this, counsel for the wife said he would not call the doctor. 4. With the greatest respect, I entirely disagree with the judge's ruling in this matter. According to the record, he could not have known precisely what this doctor was going to say; and (assuming that the doctor had been accepted by the court as an expert in this particular field) if he had testified that the continued consumption of three tablets of Milltown per day over a prolonged period could not but have had a damaging effect on the nerveus system of a human being (no matter who the human being was), and if he had then testified as to the effect of such damage on human behaviour, it seems to me that the relevance of such evidence would have been unquestionable. It is not for this court to speculate, nor, with respect, was it right for the learned judge to speculate, as to what evidence the witness was going to give. Counsel had the responsibility for the conduct of the wife's case; and, in my view, he should not have been. "warned off" from calling such evidence as he considered relevant by a threat that the court might, irrespective of the result of the trial, penalise him in the matter of costs. If counsel wastes the time of a court by calling irrelevant evidence, his client may properly be penalised in costs. But no court can decide on the relevancy of evidence unless and until it knows precisely what that evidence is. 5. The parties, who are the off spring of wealthy parents, are Buddhists. The period of their courtship lasted for about three years. The wife testified that during that period the husband was kind and considerate to her; that they had quarrels over small matters; but that she had no reason to think that he was excitable and quick-tempered; and that, before marriage, she did not know that he was in the habit of taking tranquillising drugs. 6. There was a conflict of evidence as regards these matters. The husband alleged that the wife did know that he was taking such drugs; that she knew that he was temperamental and highly strung; and that they had quarrels before marriage. The judge has not indicated which of these two conflicting versions he was disposed to accept. 7. The parties were married on 29th October 1959 in the marriage registry in Kowloon, the husband being then 25 and the wife 22 years; and the marriage was consummated on 2nd November 1959. They have no children. 8. After marriage they lived on the first floor of a building in Osmanthus Road. The husband's parents lived on the ground floor. As a result of an incident which occurred on 30th August 1960, the wife left the matrimonial home and stayed with her parents. When she returned to the husband some six weeks later, the parties moved to another flat in Kadoorie Avenue. The wife finally left the matrimonial home during the early hours of the 29th November 1960. 9. In the cross-petition, there is a general allegation by the wife that, since the celebration of the marriage, the husband treated her with cruelty. She also alleges generally that he is a man of "ungoverned" temper, and that he habitually used violence to her. She also makes detailed allegations in regard to a number of incidents which occurred between the date of the marriage and 16th September 1961; and in paragraph 8, she alleges that, on many occasions, the husband "taunted" her. The paragraph reads:-
In paragraph 11, the wife alleges that by reason of the husband's conduct she:
10. The wife's allegations in para. 8 of the pleading were fully supported by her evidence. After she had concluded her evidence-in-chief regarding an incident in March 1960, the wife was asked this question by her counsel:-
Her answer was:-
She also said that during the incident which occurred on 30th August 1960, he told her that she could divorce him if she liked; and that he phoned her a few days later and asked her to divorce him; that during the incident on the night of the 28th-29th November 1960, he again said: "Woman is cheap; I can have any woman I like"; and that, on the same occasion, after making some sneering remark about the fact that she was taking French lessons, he said: "You can have as many men as you like if you go to the New Method College." 11. In regard to all this the learned judge has this to say:
12. It is clear from the evidence that these so-called taunts were made when the parties were quarrelling. There is no suggestion that they were ever made in jest. I can understand how a man might, in anger, say to his wife during the course of a quarrel: "Divorce me if you like". But I find it difficult to imagine under what circumstances a man could tell his wife where she could "have" as many men as she liked, unless he had reason to suspect that she was associating improperly with other men and the remark was made in a fit of jealousy, or alternatively his marriage had virtually ceased to mean anything to him. Furthermore, if a man, otherwise that in jest, repeatedly says to his wife: "Woman is cheap, money can buy love, I can have any woman I like," it seems to me that a wife might reasonably conclude that her husband had lost all respect for her, and that she might reasonably suspect that he either had had, or was contemplating having, sexual relations with other women in return for money. 13. In describing the husband's remarks as "offensive observations", the learned judge appears to equate them with mere terms of abuse; and he appears to imply that it was unreasonable for the wife to have regarded these remarks in any other way. The judge has given no reasons for his conclusion that "no weight or importance" should be attached to this part of the evidence; and, in the absence of such, I find myself quite unable to comprehend how remarks of this sort by a husband could be dismissed collectively as "offensive observations". It seems to me that, in the circumstances in which they were made, these remarks are most significant; and, in my view, this portion of the wife's evidence (the judge appears to accept it) should be considered by this court in the light of all the other evidence, in order to determine whether the learned judge's finding (that the wife deserted the husband without cause) can be supported, and, if not, whether the husband was guilty of cruelty, and whether the truth of the matter is that his intention was to drive the wife from the matrimonial home with the object of bringing cohabitation between them permanently to an end. 14. With regard to these so-called taunts, throughout this case it has never been suggested that, prior to 28th November, 1960, the wife at any time refused to accede to a request by the husband for sexual intercourse. Furthermore, there is no suggestion that, since the celebration of the marriage, the wife has ever sought the company of other men. Her marriage was the civil equivalent of a Christian marriage; and, although she is a Buddhist, there is nothing to suggest that her approach to marriage has been other than that of a Christian, viz. the union for life of one man and one woman to the exclusion of all others. After she withdrew from cohabitation on 29th November 1960, she lived with her parents. It appears that she interrupted her academic studies in order to marry the husband. At some time between 1961 and 1963, she resumed these studies; and in December 1963 she went to London where she eventually passed her 'A' Level examinations, and subsequently took a 3-year course in interior designing. In evidence she said: "I wanted to train, to start a new life." 15. In my view, these are matters of some importance because, while the evidence indicates that the wife had solid reason to fear that the husband might be associating with other women, there is not a scrap of evidence to suggest that he had any reason to fear that she was associating with other men. 16. Before she dealt with the particular incidents pleaded, the wife gave certain evidence in support of her general allegation of cruelty. She said that after marriage, the husband's attitude towards her hanged completely; that he was indifferent to what she did; that he would suddenly become angry and suddenly happy; that he was always finding fault with her and looking for excuses to quarrel with her; that he would often scold her for no reason; and that, as a result, she became unhappy, nervous, and afraid of him. 17. The learned judge accepts, of course, that the husband was temperamental, quick-tempered and highly strung; but he does not appear to have made any other findings in regard to this ...(illegible) the ...(illegible) evidence. He says at the end of his judgment :-
But these remarks appear to refer to the fact that the husband went out a great deal in the evenings leaving the wife alone. They do not appear to refer to the wife's allegations in regard to the husband's conduct in the matrimonial home. 18. In dealing with the first incident referred to by the wife in her cross-petition the learned judge makes a general assessment of the credibility of the parties. He says: -
It seems to me that the last sentence is ambiguous. It could mean that, in the judge's view, the husband told more lies than the wife did. On the other hand, to say that neither party. (particularly the husband) has told the "entine truth" could mean that there was "truth" which neither party told the court. The learned judge's meaning becomes clearer when his findings of fact in regard to each incident are studied. 19. The first incident occurred about ten days after the marriage. The husband took the wife to a nightclub named "The Highball". An argument developed about where they should sit. The husband admitted in evidence that he wanted to sit at a table, and in a position, where he could have a better view of a floor show. The floor show consisted of some performance by a Japanese woman who was described (either by him or by those who sponsored her performance) as a "sex-bomb". Apparently she was scantily clad. The husband said in evidence that she had a low-cut frock and part of her thighs were visible. His evidence was that, during the argument, the wife flung her wedding ring on the floor. The wife denied this; but the judge has found as a fact that she did so. They then left the nightclub. According to the husband, they returned home, and nothing untoward occurred between them either in the car or at home. He says they simply went to bed without speaking to each other. According to the wife, the husband slapped her in the car; that, in raising her arm to protect herself, she accidentally broke his spectacles; that, as a result, he could not see to drive; that they returned home by taxi; that he then scolded her in an angry, loud voice, accusing her of damaging his glasses; that he then struck her heavy blows with his hands on the head, neck and body, pushed her to the ground and kicked her on the shin bones; that he behaved like a madman; that her servant Mak Lai pulled him away from her; that she had bruises on her legs; that she spent the next day in bed; and that she received treatment from a Chinese herbalist whom she consulted on two occasions. 20. The servant (Mak Lai) was called as a witness. She did not confirm the wife's evidence that she had to separate the parties on the evening in question; but she said that she remebered that the wife was weeping, and that during the few days succeeding this incident, she saw a black "spot" on the wife's shin bone as if she had been kicked by someone, and that she accompanied her to the herbalist. 21. The wife's brother (Lawrence) testified that about 11.30 p.m. on the night in question, in response to a telephone call, he went to the matrimonial home and saw his sister (the wife) sitting on the floor; that she was crying; that her hair was dishevelled; and that she was trembling. He also said that, when he asked the husband what was the cause of the trouble, the latter said: "Had my glasses not been messed about I would not have been so angry." 22. In regard to this incident, the learned judge's findings are as follows:-
23. The judge has found as a fact that the wife threw her wedding ring on the floor because the husband was paying more attention to "other people on the floor" than to his newly-wed wife. The evidence is that the husband was paying attention to one person in that nightclub, namely, the Japanese "sex-bomb". Clearly that was the cause of the quarrel. The wife was jealous and hurt because her newlywed husband was showing such interest in a scantily-clothed nightclub entertainer. Her method of protesting was to throw her wedding ring (the symbol of their marriage) on the floor. Unduly sensitive she may have been; but the point is: it was not her husband's interest in "other people on the floor" which had precipitated the quarrel, but his positive interest in another woman. 24. The husband's evidence is that he did not strike the wife at all that evening; and he does not allege that she struck him. Yet the judge has found that because she was the sort of person who would show her resentment, there was a "fracas" in the car and an "exchange of blows" at their home. 25. It seems to me that there was no evidence that a "fracas" took place in the car. The learned judge has found that she was struck in the car; and there was no evidence that the husband's glasses were knocked off otherwise than accidentally when the wife was protecting herself. Furthermore, there was no evidence that there was an "exchange of blows" at home. The husband said that nothing happened there. She said that she was assaulted by the husband; and there was ample corroboration of this. If the learned judge did not accept her story "in its entirety", which pertion of it did he reject? If the husband was not entirely to blame for the incident, in what way was the wife to blame? It could only have been because she was unduly sensitive in throwing her wedding ring on the floor of the night-club and/or because she accidentally knocked off the husband's spectacles in the car. 26. It would appear that the learned judge has, to some extent, expressed his own view as to what occurred, and that his view is not based on evidence. If I am correct in this, then it seems to me that it is the duty of this court to scrutinise the evidence with the utmost care. A trial judge has a great advantage over an appellate court in that he sees and hears the witnesses; and, when there is a direct conflict of testimony, an appellate court normally bows to his conclusions as to who is telling the truth partly because he is in a position to assess the character of the witnesses. But no court is entitled to make findings of fact without evidence. 27. Clearly the wife was assaulted and injured by the husband; and, as the judge has not indicated which portion of the wife's testimony, if any, he disbelieves, it seems to me that this court should, for the purposes of this appeal, accept her account of what occurred that night in the car and at home. Of course, I agree with the learned judge that, taken by itself, the incident would not be enough to justify a court in granting a decree nisi to the wife on the ground of cruelty, nor could it reasonably be regarded as just cause for her withdrawing from the matrimonial home. But it is material to bear in mind the husband's behaviour within 10 days of the marriage. 28. The next incident of importance to which the wife made reference occurred on 30th March 1960. She had had dinner with the husband in their home and she had then gone to her mother's house to see a television programme. She said that when she was returning home by taxi, she saw the husband driving his car and that there was a woman sitting beside him, a woman who was very pretty and who had long hair; that the husband drove this woman into a side street in the area of the Ritz Cinema; that she (the wife) followed; and that when she reached his car, there was no one in it; that, in response to a telephone call, her mother-in-law arrived; that they proceeded to the spot where the car had been parked, but it was no longer there; that the car had been parked there empty for about half an hour; that when the husband returned home about 11.30 p.m., she told him that she had seen him in the car with a woman; that he told her that it was none of her business; that an argument developed; that they came to blows; and that they were separated by other members of the family. 29. The husband admitted that he had been dancing with a dance hostess whom he had met in a ballroom in Mongkok; that he had then taken her to supper at a restaurant, that he paid her $40-$50; and that he then took her for what he called a "joy ride to more quiet places"; that he returned home about 11.30 p.m.; that he met the wife at the door of their home and that she scolded him and slapped him; and that he apologised for what he had done; that his reason for going out with a dance hostess was that he felt so "pent-up and frustrated" because of the wife's attitude towards him, and, that during the previous day, she had told him he was a useless person who knew nothing of business and who spoke "Temple Street English". 30. The learned judge refers to this incident in the following terms :-
31. I agree with the learned judge that the wife did not seek to establish cruelty on the footing that her husband was in the habit of taking out other women, nor did she seek to do so by evidence that on this one occasion he took out a dance hostess. She endeavoured to establish just cause for her withdrawal from cohabitation on 29th November 1960, and she sought dissolution of the marriage because of the whole of the husband's conduct towards her since the celebration of the marriage. In my view the learned judge did not attach to this incident the significance which it merited. 32. On the hearing of this appeal, counsel for the husband submitted that, because there was no allegation of adultery in the pleadings, it was quite unreasonable for the wife to attach any significance to the fact that the husband went out a great deal by himself in the evenings; that, during their quarrels, the husband had used language suggesting that he could at any time buy anywoman he wanted; and that on this occasion he had actually taken out a dance hostess. 33. I find myself quite unable to agree with these submissions. A young wife may not have any evidence that her husband has committed adultery at least not the sort of evidence which would justify her seeking a divorce on that ground in a court of law. But her thoughts and sufferings are not governed by the rules of evidence which regulate proceedings in courts of law. On the hearing of a petition for dissolution on the ground of cruelty, what the court should try to assess is the effect upon a spouse of the behaviour of the other spouse looked at as a whole. 34. The undisputed evidence was that the husband went out a great deal in the evenings by himself. There was no corroboration for his assertion that he was usually in the company of male business friends. There is no evidence that he ever told her where he was going, or that he ever introduced her to any of these business friends. He had shown his interest in another woman as early as ten days after their marriage; and a wife does not pigeon-hole incidents of that kind and forget about them. Forgiving and forgeting are two different things. 35. As regards the incident of 30th March 1960, the car was parked in the side street empty for half an hour. What was the husband and that dance hostess doing during that period? Of course, there is no evidence to lay before a court of law that he was behaving improperly with the girl. That does not mean to say that the wife did not have any reason to suspect that he might be behaving improperly. If she suffered mental anguish, how can any court say that she had no ground for her suspicions? The husband told the learned judge that the reason he took the girl out was that he was "pent-up and frustrated". That is the language of a man who seeks physical sexual relief; and it was on this occasion (or shortly afterwards) that he bragged to the wife that money could buy flesh; and that at a time when, according to him, he was penitent for having strayed from the straight and narrow path on this one occasion. Why should a man of his background take a dance hostess out till 11.30 p.m.? The state of the wife's mind during this period in their married lives may be gauged by her use of the expression "Temple Street English" to describe his manner of speaking when she upbraided him for some reason or other on 29th March. Anyone who has presided over magistrates' courts in Kowloon knows that a large number of cases involving brothels in Temple Street have come before these courts. 36. Another incident referred to specifically in the pleadings occurred on 30th August 1960. The wife says that during this period quarrels were frequent and that the husband was always angry; that he would slam cupboard doors, throw his clothes around, and speak in a loud voice; and that from about 4 or 5 months after the marriage she was in a very nervous state. She said that on this occasion he came home at 2 a.m.; that she was in bed; that he switched on the lights, slammed the door, and wakened her by shaking her; that he then asked her if she knew where he had been; that she did not answer him: that he then said that he had been to a floor show; that she did not answer because she was afraid that he was going to make trouble; that he then demanded to see some wedding albums; that she was unable to produce them because she had taken them to her mother's home to show them to her brother; that the husband then slapped her hard across the face; and that, when she tried to get up, he pushed her back into bed and slapped her on both cheeks; that she begged him to stop, which he did; but that he warned her he would beat her up properly if she ever again took things to her parents' home; that he shouted at her saying:- "If you like, you can divorce me"; that, next morning, she tried to speak to him normally; that he looked angry as if he hated her; that he slammed doors and eventually left the house; that she decided to leave the matrimonial home; and that she did so at noon that day; that he phoned her a few days later, and told her that she could divorce him if she liked; that, a few weeks later, as a result of a phone call from him, she met him in the Grand Hotel; that he then said that he was sorry that he had treated her badly; that his parents had scolded him for his behaviour and that he felt ashamed because he had to ask their forgiveness; and that she then agreed to return to him. 37. The husband said in evidence that, in asking her to return to him, he admitted to her that he had been wrong in going out to night clubs and restaurants. However, he gave the trial judge an entirely different version of what occurred on 30th August. According to him, he returned home at 10 p.m. and she returned at 11 p.m.; that he had "remonstrated" with her when she told him she had taken the wedding photos to show them to her brother, but that he did not assault her at all; that she left the matrimonial home next day and returned home some weeks later on condition that they moved away from his parent's home into a home of their own; that they then moved into a flat in Kadoorie Avenue, the rent of which was $1,250 per month. 38. In regard to this incident, the learned judge says:-
Again, the husband says that he did not assault the wife; and he does not suggest that she assaulted him. The judge finds that there was a quarrel of sufficient seriousness to cause her to leave the matrimonial home next day. The only sworn evidence before the court which might be said to have justified her taking such a course is her own evidence that she was assaulted. Yet, the learned judge finds that her allegations of violence have not been "substantiated". It is not clear whether he means that, as regards this particular incident, he is not prepared to accept her allegations of violence unless corroborated in some way by another witness such as a doctor. In regard of that, it was never suggested by her that the assault on this occasion was of such a nature as to require her to go to a doctor for treatment for injuries. According to her she was slapped and shouted at and warned that she would get a severe mauling if she ever again took away articles from the home. If she was disbelieved, what caused her to leave the matrimonial home? If the husband's behaviour was not the sole or primary cause of the quarrel, what justification had she for leaving? She certainly did not have sufficient reason for leaving if all that happened was that the husband "remonstrated" with her. 39. The learned judge said that in arriving at his conclusion he had borne in mind certain correspondence which had passed between the parties' solicitors subsequent to the incident, and in particular to a letter written by the husband's solicitors 51 days after the incidert, part of which reads:-
In regard to this letter, the learned judge says :-
The learned judge makes no findings in regard to the wife's evidence that when she met the husband in the Grand Hotel, he apologised for having treated her so badly in the past, and said that he had been forced to ask his parents' forgiveness. But the matter does not end there. There was another letter before the court written by the wife's solicitors, It reads thus :-
There was no reply to this letter either by the husband or by his solicitors. In my view, the weight to be attached to letters of this kind must be minimal. But, having referred to the letter written by the husband's solicitors, it seems extraordinary that no reference is made in the judgment to the letter written by the wife's solicitors. The two solicitors did not testify. There was no question of the judge believing one and not the other in regard to the instructions alleged to have been received from their respective clients. 40. For the above reasons, I think that this court should make its own independent assessment of the evidence in regard to the incident on 30th August 1960; and, in view of the judge's finding that the "quarrel" was "of sufficient seriousness to cause (the wife) to leave the matrimonial home next day", it seems to me that this court, for the purposes of this appeal, should accept the wife's version of what took place. 41. Upon the wife's return, the parties moved into the Kadoorie Avenue flat. According to the wife, she had no cause to complain of the husband's behaviour during the first few weeks; but he then began to return to his old ways. She testified as to outbursts of temper on his part, shouting at her over trivial matters, and accusing her of wasting money. 42. The incident which precipitated the final break between the parties occurred towards midnight on 28th November 1960. According to the wife, the husband had been out all evening without informing her where he was going. She says she went to bed at 11 p.m.; that he returned about midnight in a happy mood, that she refused his advances toward sexual intercourse as she was "not in the mood"; that he then became angry and shouted foul language at her; that he said: "Woman is cheap; I can have any woman I like"; that he then said that she could have as many men as she liked if she went to the New Method College; that he began to put on his clothes; and that, when she asked him where he was going, he said: "It is none of your business"; that she told him she would not let him go out; that he then said that no one could prevent him; that he slapped her face; that she grabbed his tie; that he pulled her out of bed and kicked her as she lay on the floor; that she got up and threw a small alarm clock at him; that he cried like a wild beast and threw a hand mirror at her; that he then called for the maid; that he then rushed at her saying he was going to strangle her; that the maid came in and pulled her away; and that she then put on a dressing-gown and drove to her parents' home. She said her body was aching all over and that she had bloodstains on her lips. 43. The husband's story was this: that she refused him sexual intercourse saying: "You rotten man, coming home at such a late hour"; that he was very angry; that he put on his clothes with a view to going out for a walk; that she put the key of the bedroom door under her pillow; that she resisted when he took the key from under the pillow; and that, as he walked away, he was hit by the clock which she flung at him. In certain earlier proceedings before a magistrate, his version of this incident was somewhat different. His story on that occasion was that the wife held the key in her hand, and that he had taken it from her. 44. The wife's brother, Lawrence, said in evidence that he came to his parents' home that night about 11.30 p.m. in response to a telephone call from his sister; that he saw the wife crying; that she was spitting blood into a towel which she was holding in her hands; and that she had blood on her lips. 45. There was evidence that on this occasion Lawrence had to be physically restrained from assaulting the husband. It appear that he did in fact assault him on 17th January; and that he was subsequently charged before the magistrate and bound over to keep the peace. 46. The wife consulted her doctor on 29th November. The evidence which he gave in these proceedings appears to have been based on such notes as he made at the time in his medical records. He said that on 29th November the wife was in a very distressed condition, and that she was weeping; that she had a bruise 2 inches by 1 inch on her left leg, a small bleeding wound on the inside of her lower lip, and tenderness to the right of her left shoulder blade; and that he took an X-ray with a view to ascertaining whether any of her ribs were fractured. 47. The learned judge deals with this incident thus :-
48. According to the husband, the wife resisted when he recovered the key from her possession, and she then flung the clock at him. According to the wife, she did not take the key, although she told him she would not let him go out again. She said she was assaulted and that she then flung the clock at him and that he flung a mirror at her. According to the judge the husband removed the key from under the pillow "with some degree of force"; the wife then flung the clock; that after the flinging of the clock, there was a "fight"; and that it was in the course of this "fight" that the wife sustained her injuries. 49. Can it be said that the judge, in so finding, acted on any evidence adduced? Neither party suggested that there was a "fight" after the flinging of the clock. If the husband's version was to be accepted, the injuries could only have been inflicted prior to the flinging of the clock; and the same applies if the wife's evidence was to be accepted. But the judge has found that neither party gave the correct sequence of events to the court. He therefore has stated what he thought probably happened; and, in the process, he has virtually made it look as if the wife was the aggressor by flinging the clock. This is not a case of a trial court drawing an inference from primary facts which it has found; and with the greatest respect, in stating the sequence of events as he has done, the learned judge appears to be making findings which are not based on evidence. 50. If then, it is accepted that the wife's injuries were sustained before the flinging of the clock, clearly this court must look at the evidence afresh in order to ascertain for itself how they were caused. 51. The husband admitted that he came home between 11.30 p.m. and midnight. It is common ground that the wife refused to permit him to have sexual intercourse with her. She said she was not "in the mood"; and in my view, her refusal in such circumstances ought reasonably to have been accepted by him. But, instead, her refusal made him angry. His mind was obviously on sex (not on walking), because he proceeded immediately to brag that he could "have" any woman he liked and that she could "have" as many men as she liked. The judge has not found that these statements were not made by the husband; and I see no reason why this court should not accept that they were made. Remarks of that kind, uttered at a time when the wife had refused him sexual intercourse, might reasonably have signified to her that whatever his attitude to the marriage bond had been hitherto, he no longer regarded it as sacred, and that he considered that he was free to find his sexual life elsewhere. Furthermore, when he proceeded to dress and when he announced that he was going out again, it would have been indeed surprising if she had not recalled to mind her past experience of his visits to night clubs and his association with a dance hostess. I see no reason to disagree with the learned judge's finding that, in all probability, the wife took possession of the key of the door. Her action in doing so could only have been prompted by the fear that the husband might seek the company of another woman. The judge says that one can sympathise with the wife for taking the key. Indeed, one can. But, he has not indicated whether he takes the view that mental torture of this sort in a young wife who takes some action to prevent. her marriage crumbling, is something which ought to be considered by a court of law in deciding whether she has been treated with cruelty. The judge appears to be concerned only with the physical injuries suffered by her. 52. How, then, were those injuries caused? According to the husband, she resisted when he took the key; but he does not suggest that there was anything in the nature of a struggle between them. Of course, there was never any suggestion that he suffered any injuries, apart from the wound caused by the clock; and the obvious conclusion on the evidence appears to be that he succeeded in recovering the key without much difficulty, but that he slapped her, pulled her out of bed, and used violence on her face and leg, all as testified by her. The bruise on the leg could well have been caused by a kick, and the cut lip could well have been caused by a blow on the mouth. Indeed a few weeks later her solicitors wrote to the husband's solicitors alleging that the cut on her lip was caused in this way. It is admitted that the wife was injured; and the only evidence as to how she came by her injuries is her own evidence; and I see no reason why the court should not have accepted it. To go outside the evidence and find that her injuries were caused in a "fight" after she had flung the clock is, with all due respect to the trial judge, conjecture. 53. The learned judge describes the injuries which were treated by the doctor next day as "relatively superficial". I do not think that this description adds anything to the evidence. To a doctor cuts and bruises are no doubt minor injuries. I apprehend that a broken leg or a fractured skull would fall into the category of major injuries. But, it has never been suggested that the wife had any of her bones broken - although it is perhaps not without some significance that the doctor who examined her on the 29th November 1960 thought fit to ascertain by x-ray whether any of her ribs were fractured. Cuts and bruises are what a court would normally expect to find when a wife complains that her husband has used violence on her. But this court is concerned not only with the injuries which the doctor happened to record in his notes when he treated her next day. The court is concerned with the whole of the husband's conduct on his, and on all previous, occasions, and with the effect of his conduct upon the wife. 54. In regard to this incident, the learned judge says :-
The judge, of course, took the view that the wife's injuries were caused in a "fight" with the husband after she had provoked him by taking possession of the key and after she had hurled the clock at him. That view is not supported by the evidence. But, in any event, the judge again appears to be considering this incident in isolation. It was never the wife's case that the court should act upon the evidence in regard to any particular incident. Her case was that, by 30th November 1960, she had come to the "end of her tether", and that she could not stand to live with the husband any longer. 55. The final incident referred to by the wife in her pleadings occurred on the 16th September 1961, i.e. 9 1/2 months after she left the matrimonial home. Her evidence was that about 11.00 p.m. she and her sister and brother-in-law went for a drive; that when they came to Norfolk Road she saw the husband sitting in the driver's seat of a car with his arms round a woman; that her brother-in-law stopped; that she approached the husband and put her hand through a 4" gap in the front window; that the husband suddenly drove off; that her hand was caught in the gap; that, after being dragged along for some 15-18 yards, she fell to the ground, thereby sustaining bruises and abrasions on her elbow, hip, knee, lips, arm and cheek. 56. On 26th March 1962, she instituted a private prosecution against the husband charging him with assault occasioning actual bodily harm on 16th September 1961. The magistrate found the husband guilty of this offence. 57. The husband's story to the trial judge in these proceedings was this: He said that he was sitting with a female member of his own staff in the car; that the wife suddenly appeared; that she said: "Don't tell me that I have not caught you"; that she put her hand through the 4" gap in the partially-open window on his side; that, in the mirror of the car, he saw a heavily built person whom he took to be the wife's brother, Lawrence, approaching; and that he panicked and drove off. 58. The record of his answers in cross-examination during the proceedings before the magistrate were put to him. These included the following :-
He agreed that he gave these answers to the magistrate. The learned judge's record of the husband's cross-examination in these proceedings includes the following:-
59. He first drove to his mother's home and told her that he had seen the wife in the reflection of the mirror of the car; that a crowd of people behind her appeared to be about to "rush the car"; that he was frightened and that he drove off; and that he did not know if the wife was injured or not. 60. At his request his mother accompanied him to the police station. He told the police an untrue story. What he said to them was that, as he was driving along Waterloo Road near Boundary Street, he noticed that he was being followed by another car; that he stopped in Waterloo Road; that a big strong man from the other car whom he did not know came to the bonnet of his car; that he was afraid and drove off. 61. His conflicting stories were put to him in cross-examination in these proceedings; and he admitted that he sometimes told lies when he panicked. 62. The wife was treated for her injuries at Kowloon Hospital in the early hours of the morning of 17th September, and, during the next 3 1/2 weeks, she received further medical treatment on six occasions. It is not in dispute that her injuries consisted of :
In regard to this incident, the learned judge says :-
Later, the learned judge says :-
63. As to this incident, there appears to be very little dispute as to the primary facts viz that the wife found the husband with his arms round another woman; that the wife was leaning against the car on the driver's side with her hand through a 4" gap in the front window; that the husband suddenly drove off thereby causing her to be dragged by the car for some 15 - 18 yards before she fell down on the roadway and sustained various injuries. Again, the judge's description of the injuries ("of a relatively minor nature") adds nothing to the evidence. The wife was extensively bruised as a result of being dragged along for 15 - 18 yards by the car and then falling heavily on the ground. 64. The husband was obviously caught unawares; and no doubt he was startled by the sight of the wife at the partially-open window. It is common ground that Lawrence was not in fact at the scene. The judge makes no finding as to whether the husband in fact thought that Lawrence was at the scene, and, if so, whether he had any reasonable ground for so thinking. All the judge says is that the husband's "only idea and intention" was to get away as quickly as possible. But even if we assume that the husband really believed that he was in imminent danger of being assaulted by Lawrence, he obviously knew that the wife was leaning against the car and that her hand was through a narrow 4" gap in the partially-open window. To drive off in these circumstances was, in itself, a dangerous act. Furthermore he must have seen the wife's hand through the window as the car progressed for 15 - 18 yards; and, by not stopping immediately, he must have realised that he was placing her in very real danger of serious injury. It appears that he knew immediately afterwards that she had fallen from the car on the ground. Nevertheless he did nothing to help her. To say the least of it, his whole behaviour on this occasion betrayed a selfish and callous indifference to the safety of another human being. 65. The judge has found that the wife was already in desertion by 16th September 1961. In my view, the evidence should be carefully scrutinized by this court in order to determine whether this finding can be supported. There is no doubt that when she went to her parents home in the early hours of the morning of 29th November 1960, she was in a very distressed state and suffering from various injuries inflicted upon her by the husband. He says that he followed her to her parents home that night and that he tried to persuade her to return, but that she refused to do so; that, a few days later, he again asked her to return, and that she again refused; and that he received a further refusal from her when he spoke to her on the telephone about I month later. 66. His evidence on these matters was not corroborated in any way; and the learned judge does not say that he accepted it. The wife denied that he contacted her after she left the matrimonial home; but she was referred to the record of her evidence before the magistrate which indicated that, early in 1961, in response to a request by her, the husband came and discussed matters with her at her mother's home. She told the learned judge that she could not recall any such incident; but she agreed with counsel for the husband that her memory for such events was possibly better in May 1962 (when the magistrate tried the assault charge) than in August 1967. 67. According to her, she left home on 29th November in a dressing gown, and came back to collect some of her personal belongings a few days later. She said that about 3 weeks later she again visited the flat and found that new tenants were in occupation. It is not known exactly when the husband had entered into negotiations for the letting; but he must have done so very soon after the 29th November. He told the learned judge that he had let the flat because he did not wish to live in such an expensive flat by himself. Having regard to the fact that on 18th January 1961 his solicitors wrote to the wife's solicitors suggesting a reconciliation between the parties, one wonders why this flat was disposed of by him in such a hurry. 68. He consulted his solicitors about 3rd January 1961, and they wrote to the wife saying: "We are instructed by ...... (the husband) ...... who instructs us to say that you deserted him on 30th November 1960 ...... " The wife's solicitors replied on 16th January 1961 denying this allegation and asserting that she was forced to leave by the husband's cruel behaviour; and they alleged constructive desertion on his part. 69. The day after he was assaulted by Lawrence the husband again contacted his solicitors; and, through them, he wrote a letter to the wife. It is not clear why a personal letter from him had to be forwarded by his solicitors. In it he does not say to the wife: "Please come back to me;" but he purports to put certain things on record such as: "your brother told me that you will not cohabit with me in the future," and "since you ran away from me for months I believe that you are no longer in love with your husband. I hope for the sake of our future whether something can be done through our lawyer"; and he suggested that she should meet him "and discuss our future." 70. The wife's solicitors replied on 3rd February expressing the hope that efforts might be made to bring the parties together; but they concluded by saying: ".... (the wife) is still deeply afraid of returning to your client because of his ungovernable temper." 71. The judge's note of the wife's evidence-in-chief regarding her state of mind between the 29th November 1960 and December 1963, reads thus :-
Further questioned by her own counsel, the judge's note reads :-
The record of her cross-examination on the point reads :-
72. The magistrate's record of her answers to questions put to her by counsel for the husband during the hearing of the assault charge reads :-
If the husband's case is that she had finally made up her mind on 29th November 1960 never to return to him it is extraordinary that his counsel should have suggested to her that it was she who sent for the husband early in 1961 to discuss matters. Why should she have had anything more to do with him if her mind had already been made up? 73. The learned judge says :-
Two points arise on that finding. Firstly, at one stage she did say that she would have returned to the husband in September 1961 if the conditions mentioned by the judge had been fulfilled; but later, in answer to both counsel, she said that it was not until 1963 that she finally made up her mind. Secondly, if, on 29th November 1960, she had not made up her mind finally to leave the husband but she had (according to the judge's finding) made up her mind to do so before 16th September 1961, at what stage during the intervening period did she finally make up her mind, and what caused her to do so? There is nothing in the evidence which could point to an answer to that question. 74. It is difficult to see on what basis the judge has found that she had finally made up her mind before 16th September 1961 never to return to the husband. The whole tenor of the correspondence passing between the parties, and of her evidence in court, seem to suggest indecision on her part and to suggest that, while she had no intention of returning to the matrimonial home unless she received some very real assurance that the husband was going to treat her properly, she had not really taken any firm decision in the matter. 75. In my view, on the evidence, it is impossible to come to any firm conclusion as to when she finally decided never to return to the husband. Nothing turns on the fact that she took no steps to initiate divorce proceedings. There is no evidence that she intended to set up a new home. Indeed, the evidence is that she decided to go back to her academic studies; and it would appear that she was quite content to let her marriage drift on indefinitely until, of course, the husband charged her with desertion, and she then decided to challenge his allegations and to put her version before the court. 76. In my view, the learned judge's finding that she was in desertion before 16th September 1961 should not be accepted by this court. Although it is impossible to say when she finally made up her mind not to return to the husband, the whole weight of the evidence appears to point to the fact that it was after the incident on 16th September, 1961. 77. The learned judge appears to have considered only the various acts of physical cruelty pleaded by the wife, and to have regarded each incident in isolation. In Jamieson v. Jamieson(1) Lord Normand drew attention to the danger of approaching the evidence in matrimonial proceedings in this way. He said :-
78. The case for the husband was that the wife was unduly sensitive to the normal "wear & tear" of married life, and that when the slightest thing went wrong, she "ran back to mother". I do not think that this is borne out by the evidence. In my view the wife had just cause for leaving the husband on 29th November 1960. In taking a husband "for better, for worse", no wife bargains to put up with what the wife in this case had to put up with. The judge has not found that she knew before marriage that the husband was taking drugs. It may be that during courtship the husband was able, by means of these drugs, to control himself and to hide his true nature and temperament from her. At any rate, very soon after marriage he showed that he had little or no respect for her, and that he was prepared to use violence upon her. He subsequently assaulted her severely on a number of occasions; and on the night of 29th November 1960 she had ample justification for seeking the shelter of her parents' home and staying there until she had some real guarantee that he had decided to treat her reasonably. Although he appears to have apologised for his behaviour on 30th August 1960, there is no evidence that he apologised for the assault on the 28th/29th November 1960 or that he gave her any indication that he intended to treat her reasonably in the future. She had every reason to fear further assaults if she returned to him; and the incident on the 16th September 1961 did nothing to assuage her fears on this score. 79. Furthermore, the wife did not base her case entirely on the fact that she had been severely assaulted on a number of occasions and that she had reason to fear further violence. The specific assaults pleaded formed part of the husband's general pattern of behaviour towards her. Obviously, he thought that he was entitled to treat her just as he liked. His violence, his outbursts of temper, his inconsiderateness in leaving her alone in the evenings, have to be viewed in the light of his remarks which, it seems to me, reveal his attitude to women in general, to his wife in particular, and to his marriage. In the light of all the evidence in this case, I am quite unable to understand how any court could dismiss these remarks as "offensive observations". Even assuming that by 28th November 1960 she did not have sufficient reason to suspect that he had in fact committed adultery, by that date (if not before) she had good reason to suspect and fear that he was intending to do so - and with the type of woman who sold her body for money. She did not say in evidence that she entertained any fears concerning her own health if the husband should have carried out his apparent intentions; but she may well have considered that that aspect of the matter could safely be left to the court. 80. The whole weight of the evidence seems to suggest that the husband must have realised that his conduct towards her would, sooner or later, drive the wife from the matrimonial home. I am clearly of the opinion that the appeal should be allowed, that is to say that the decree nisi in favour of the husband should be rescinded and that the wife should be given her decree nisi on both grounds namely that the husband treated her with cruelty and that he was guilty of constructive desertion.
27 FEB 1968 Representation: ...(illegible) (1) 1952 A. C. Pg. 535 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CIVIL APPEAL NO.40 OF 1967 (ON APPEAL FROM D.J. ACTION NO. 52 OF 1965) -----------------
----------------- Coram: Hogan, C.J., Blair-Kerr, J. and Mills-Owens, J. Date of Judgment: 27 February 1968 ----------------- JUDGMENT ----------------- 81. Only after considerable doubt and hesitation have I reached a conclusion in this matter, which turns primarily on issues of fact and the appraisement of oral evidence. 82. Whilst the recent decision in the case of Onassis v. Vergottis(1) emphasises the limits of the advantages enjoyed by a trial judge when it comes to drawing deductions from the demeanour of witnesses, courts of appeal are naturally slow to differ from the findings of fact by a trial judge if demeanour plays a significant part in the proper determination of the value of evidence - see Khoo Sit Hoh v. Lim Thean Tong(2), Yuill v. Yuill(3) and Watt v. Thomas(4). Moreover there would appear to be support for the argument that the significance to be attached to demeanour may be greater in matrimonial causes than in many other matters (see Lord Thankerton in Watt v. Thomas)(4). Nevertheless, in the present case, there were, I think, certain errors which materially affected the approach of the judge to the issues before him. 83. As indicated in Jamieson v. Jamieson(5) quet d by Blair-Kerr, J., when there are a number of alleged incidents it may be necessary, in order to do justice between the parties not only to assess and appraise each incident in the light of the others but to look at their combined effect on the matrimonial relations as a whole. It seems to me that this was such a case and, indeed, the judge, in dealing with the earlier incidents, appears to have been fully aware of this. For example, in referring to the incident at the Highball, 10 days after the marriage on the 29th October, 1959, he said :-
84. Again, referring to the incident in December, some 6 to 8 weeks after the marriage, when the petitioner allegedly slammed down the lid of the piano in a manner likely to injure the wife's hands, the judge said that :-
85. Referring to the incident or incidents in March, 1960, he said :-
But when he moved on to consider the later and more serious incidents on the 30th August, 1960 and the 29th November, 1960, not only does he appear to have treated them merely as isolated incidents and to have lost sight of the question whether, in the light of what had gone before, they could amount to cruelty, he also appear to have confined his assessment of these incidents to cruelty alone and not to have applied his mind to the question whether they could constitute constructive desertion on the part of the Petitioner or, alternatively, a defence to the Petition for desertion without reasonable cause. 86. He appears to have placed the same limits on his consideration of the final incident, that on the 16th September, 1961. He concludes his assessment of this incident with the following words :-
87. Not only does this paragraph indicate that the judge did not consider this incident in relation to the possibility of constructive desertion by the husband or a defence by the wife to the allegation of desertion without reasonable cause but the passage also seems to suggest that the judge was mistaken as to what was required for the success of a petition founded on desertion without reasonable cause. 88. Desertion, as a ground for divorce, differs from adultery and cruelty in that the latter provide an accrued right to petition for divorce. The offended spouse may at once repudiate the marriage and is no longer bound to affirm it. The offence of desertion is different. It is said to be "inchoate" until the action is constituted (Perry v. Perry)(6). Until then, the deserted spouse must continue ready and willing to take back the deserting spouse. Can he or she properly be regarded as ready and willing to take back the deserting spouse if his or her conduct during the period of desertion is such as to amount to constructive desertion or to justify the deserting spouse in staying away? 89. In Pratt v. Pratt(7), where the wife deserted the husband without cause but subsequently suggested meeting with a view to discussing the renewal of their married life and the husband had rejected these approaches, it was held that he could not successfully petition on the ground of desertion without just cause. 90. In the House of Lords, Lord Macmillan said :-
91. Lord Romer took a similar view. Having said that if the husband had not rejected the wife's approach, he would have been entitled to the decree he sought, Lord Romer continued :-
92. There is, however, in Lord Romer's speech a further passage where he said :-
93. That language would appear to suggest that without some move by the deserting spouse the desertion continues. On the other hand, if the deserted spouse was behaving in such a way that the deserting spouse could not reasonably be expected to go back and resume cohabitation, could he or she reasonably be expected to take steps for that purpose by way of a conditional proposal or otherwise? 94. Whilst any view I may express is qualified by the fact that we have not had very full argument on this point, it seems to me that the last mentioned passage from Lord Romer's speech should not preclude the court, even where no effort to resume cohabitation is made by the alleged deserter, from taking account of the conduct of the petitioner, during the statutory period up to the time of presenting the petition, for the purpose of determining whether, in the light of that conduct, the petitioner has shown that the desertion continued without just cause for the prescribed period. 95. In not weighing the Petitioner's conduct as a whole and in not determining whether that conduct, including the incident on the 16th September, even if it did not amount to cruelty, would justify the wife's conduct on other grounds, the judge, it seems to me, was in error. In this connection, I have not overlooked the remarks of Hodson, J., as he then was, in Barker v. Barker(8) about the danger of saying "This is not cruelty, but is so near it that it amounts to a grave and weighty matter justifying separation" and his remarks in the Court of Appeal in the later case of Pike v. Pike(9); but I have considered them in the light of the further qualifications or observations on them made by Bucknill, L.J. in Edwards v. Edwards(10) and Lord Merriman in Foster v. Foster(11). Observations which apply, I think, to the facts of the present case. 96. I am very much aware that, at any rate, in regard to some of the misconduct not only did the judge have the advantage of being able to observe the demeanour of the husband and wife in the witness box but that advantage was used in considering the possibilities of just cause for separating or constructive desertion. However, the judge did not, it seems to me, make use of that advantage in respect of a substantial and significant part of the evidence in relation to which he did not address his mind to these issues. In the circumstances, I think that, for the purpose of these issues, I must make my own assessment of the evidence as a whole. 97. The requirements of cruelty, constructive desertion and just cause for separating as well as the differences between them emerge very clearly from the judgment of Diplock, L.J. in the later case of Thoday v. Thoday(12) to which reference does not appear to have been made in the court below, but which has already been quoted by Mills-Owens, J. 98. Bearing these differences in mind, it seems to me that even if the conduct disclosed by the evidence in the court below was not sufficient to establish cruelty on the part of the husband, it was sufficient to give the wife just cause for separating from him. My doubts in this matter have arisen mainly on the question whether it was also sufficient to found her prayer for a divorce on the grounds of constructive desertion. For that, it is necessary not merely to have just cause for separating, but in addition the ill-treatment complained of must be accompanied by expulsive words or must, in itself, amount to expulsive conduct. 99. After careful consideration and bearing in mind the advantage the judge had in determining primary facts, I nevertheless have also come to the conclusion that this requirement is satisfied and that the wife is entitled to a decree nisi because the conduct of the husband amounted to constructive desertion.
27th February, 1968. Representation: ...(illegible) (1) Times, 24.1.68. (2) 1912 A.C. 323. (3) 1945 P. 15. (4) 1947 A.C. 484. (5) 1952 A.C. 525. (6) 1952 P. p.203 at p. 211. (7) 1939 A.C. p.417 at p.422. (8) 1949 P. 219 at 226. (9) 1954 P. 81. (10) 1950 P. 8. (11) 1954 P. 75 (12) 1964 P. 181 at p. 199. IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CIVIL APPEAL NO. 40 OF 1967 (On appeal from Divorce Action No.52 of 1965) -----------------
Coram: Full Court (Hogan C.J., Blair-Kerr & Mills-Owens JJ.) Date of Judgment: 27 February 1968 ----------------- JUDGMENT ----------------- 100. The evidence has been reviewed at length by Blair-Kerr J., and I agree generally with his conclusions. The various incidents which occurred during the cohabitation of the parties are not to be viewed separately or in isolation, the one from the other. As Lord Normand said in King v. King(1): "The general rule in all questions of cruelty is that the whole matrimonial relations must be considered ...... ". I take that rule to apply also where the question is whether the conduct of a spouse gives rise to just cause for desertion or amounts to constructive desertion. 101. On a review of the whole of the evidence I consider it right to say that throughout the married life the husband exhibited tendencies, and, whatever his real intentions, professed intentions such that the wife was not obliged to continue in cohabitation with him. In particular, he made it clear to her that he considered that he had the right to disregard the sanctity of the matrimonial bond, that he was to be free to resort to other women, bought women, whatever her objections, and to indulge himself thus whenever he felt so inclined. It is true that the wife's cross-petition makes no charge of adultery, nor is there any evidence of any act of adultery by him. It is the case, also, in my view, that the evidence is insufficient to show that he induced in her a reasonable belief that he had in fact committed adultery. Nevertheless the effect on the wife of his words and conduct are most material. In my view, on the occasion of the incident when the wife finally left the matrimonial home he must have known that his words and conduct, culminating in that incident, would in all probability have that result. No wife could be expected to accept the situation in which the respondent was placed, nor could any wife be expected to accept the obvious dangers to herself physically if his professed intentions were to be carried into effect, namely association with women whose favours he might purohase. 102. Whilst he may not have given her cause to believe that he had in fact at any time committed adultery he had, in my view, certainly given her cause to believe that he held himself free to do so. I would refer in this connection to the decision of their Lordships of the Privy Council in Lang v. Lang(2) where, to quote the headnote, it was held that:
In Gollins v. Gollins(3), Lord Reid referred to the decision in Lang v. Lang(2) and, at p.974 said:-
103. To amount to just cause for desertion the conduct alleged must be seriously disruptive of the marriage; it must go far beyond the ordinary frictions of married life. In the classic phrase, it must be grave and weighty. In Young v. Young(4), the President, Sir Jocelyn Simon, said:
In Saunders v. Saunders(5) in discussing the matter of constructive desertion, he said :-
In Thoday v. Thoday(6), Diplock, I.J. was concerned to distinguish between just cause and constructive desertion in relation to cruelty, and said :-
104. In the present case, as it appears to me, the wife was entitled to succeed on her cross-petition, if not on the ground of cruelty then on the basis that the husband's conduct rendered further cohabitation virtually impossible and amounted to constructive desertion. He must have known that his conduct would in all probability result in the wife ceasing to cohabit with him, and for that reason, in my view, he is to be taken to have intended that result. 105. It is only after lengthy consideration that I came to a conclusion different from that of the learned trial judge, but taking the view which I do of the husband's words and actions, and their cumulative impact and effect on the wife I feel bound to conclude that his petition ought to have been dismissed and the wife granted a decree on her cross-petition, if not on the ground of cruelty then certainly on the ground of constructive desertion.
27th February 1968. Representation: Leo D'Almada e Castro Q.C. and A. Zimmern instructed by F. Zimmern & Co. for respondent (appellant). Oswald Cheung Q.C. and Patrick Yu (Samuel Soo & Co.) for petitioner (respondent). (1) (1953) A.C. 124 at 125. (2) (1955) A.C. 402. (3) (1963) 2 All E.R. 966 at 973-4. (4) (1964) P. p.152 at p.158. (5) (1965) 1 All E.R. 838 at p.843. (6) (1964) P. p.181 at p.199. |
Other judgments that cite this case