Kwan Chung Miu-heung v. Kwan Kwong-yan

HCMC000038/1975

IN THE HIGH COURT OF JUSTICE

DIVORCE JURISDICTION

ACTION NO. 38 OF 1975

(Formerly V.D.J. Action No.285 of 1975)

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Coram: Li, J.

Date of Judgment: 26th July, 1976.

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JUDGMENT

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1. This is a petition for a decree on the ground that the marriage had broken down irretrievably. The parties were married in January, 1970. There were three daughters born to the union. The first child was born in January 1971; the second child in September 1972 and a third child in August 1974. The reason, the petitioner said, that the marriage had broken down irretrievably was because of the conduct of the respondent. It is alleged that the respondent's conduct is so violent towards the second child and the petitioner that the petitioner could not reasonably be expected to live with him any more. The issue is comparatively simple.

2. According to the evidence of the petitioner, the respondent started to beat the second child, Yuk Kam, when she was about four months old. The respondent alleges that when the second child was born the respondent's mother fell ill and he had to remit money to Mainland China to buy medicine for his mother. For this reason, the respondent alleged that the second child had brought bad luck to the family. He started beating her on the limbs. When the child cried he beat her more and he slapped her on the face. This became a matter of habit which grew more and more in frequency. Every time the petitioner intervened to save the child from beating, the respondent threatened the petitioner. This carried on for a couple of years until the petitioner no longer dared to interfere with the respondent's beating of the child, Yuk Kam. Sometime in 1973, in November/December, the respondent was involved in a fight. As a result, he was charged, convicted, and was sent to prison for four months. Upon his release the respondent lost his job with the Kowloon Motor Bus Company. His temper went from bad to worse culminating to one incident sometime in July 1974, soon after they moved to a new address, when the respondent severely beat Yuk Kam and treated her with cruelty. What happened was that the second child broke a toy-car. The respondent lost his temper. He lifted the child and threw her down and then beat her. The petitioner went to the child's rescue and took the child to her madiden home. The respondent pursued the child to the petitioner's maiden home, recovered the child and beat her again. In the process of doing so, the respondent struck the petitioner's mother. Once the respondent had the child home, he denied her food over 24 hours. He went to the extent of throwing food away instead of feeding the child and the petitioner was too weak to dare disobey the respondent. After a day or so, the respondent relented and gave the child some food and water. However, the beating continued. Perhaps I should add at this stage that prior to the incident of the toy incident, the respondent had beaten the child so much that from time to time the petitioner had to take the child home to her own mother to be cared for, so as to give the child a break. But financial circumstances would not permit her to leave the child too long with her mother because while the child was there she had to contribute at least about $200 a month on the average for the maintenance of the child. The family income would not enable her to do so. However, as soon as the child was brought back the beating started again and the petitioner became very distressed over this. A month or so after the toy incident, after the child was brought home, the beating resumed until one day in August 1974 there was some quarrel in the family in the presence of the respondent's father and the respondent threw a plastic bowl at the petitioner hitting her on the stomach or abdomen. At that time the petitioner was eight and a half months pregnant with the third child. The respondent told the petitioner to leave and told the petitioner that she could take the children with her as well and that he would not be responsible for their up-keep. For this reason, the petitioner left home with her children and hid herself away from the respondent for a few months. Hence the petition.

3. The respondent gave evidence himself. He strongly denied any beating of the second child at all. According to the respondent, the petitioner was a good wife. They courted one another for about 5 or 6 years before they were married. It was agreed that they were happy in the first few months of their marriage and when the second child was born there was no such incident that his mother fell ill or that he ever blamed the child, Yuk Kam, for bringing the family bad luck. He said that Yuk Kam, was rather chubby and cute. As a loving father, he merely patted her from time to time on the face or the limbs, never used any great force to hit her. Referring to the incident of the fighting, he said that it was a fight with his colleague. Despite his plea with the Magistrate and giving the family background, the learned Magistrate saw fit to send him to prison for a period of four months. Since then the petitioner's family used that as an excuse thinking that he could never secure a job again. The respondent said that he was a very loving father and a very good husband and treated the petitioner's family with generosity and affection. He said that he spent a fortune, his whole savings of over $10,000, as a gift during the wedding or before the wedding with the petitioner. Every month, while he had his job, he used to give three to four hundred dollars for the maintenance of the petitioner's maiden family. The petitioner's brothers were never-do-wells, they never had a regular job and they associated with undesirable characters. Making use of the incident, despite the generous and kind treatment on the part of the respondent, the mother-in-law and brothers-in-law never treated the respondent with any sense of gratitude. He admitted having hit the child over the toy incident but that was with reasonable force and as a chastise of a child for misbehaving herself. He never overdid it. Nonetheless the petitioner used that as an excuse. He said he never hit his mother-in-law. It was only on that occasion when he wanted to give the child a beating that the mother-in-law warded off his blow whereupon his brothers-in-law used a chopper to chase him away from the maiden home of the petitioner's family. He further alleged that the petitioner had been weak, was induced by her family to petition for this divorce. The petitioner, although she had been a loving wife, had obviously changed. This generally is the issue.

4. The question to be considered is whether the petitioner's evidence is to be believed or whether the respondent's evidence is to be believed. Looking at the case as a whole, I find that the respondent is obviously a man of violent temper which he never even attempted from time to time, to control. Despite his denial of his brutal treatment of the second child which caused the petitioner distress, he admitted that on one occasion he threw a cup at his brother-in-law and gave the brother-in-law a blow causing him, the brother-in-law, to bleed. It is not necessary to consider the financial support or otherwise given to the petitioner's family by the respondent. What I have to consider is the respondent's conduct, whether it has been proved to me beyond doubt that he behaved in such an unreasonable manner that the petitioner could not reasonably be expected to live with him in the future. Out of his own conduct in this court, as well as in the District Court in the course of interlocutory proceedings he let himself down. Right before Judge Mayo, in chambers, the respondent gave the petitioner a blow on the bridge of her nose in full view of the judge. This morning, at the resumed hearing, the conduct and attitude of the respondent can be described only as openly defiant. He would not allow counsel for the petitioner to ask him any question and he would refuse to answer any question which he considered he should not answer. In other words, he wanted to run the proceedings himself which is obviously not permissible in this court or indeed in any court. He persistently interrupted the proceedings by a running commentary on his part using abusive language, and he was openly defiant to me. He made one remark persistently saying that "the fairest judge cannot judge a family dispute." It may or may not be so in other places but in this day and age, as far as Hong Kong is concerned, the law gives me jurisidction to adjudicate upon family matters and indeed it is my duty to do so and I have to do so, however unpleasant that task may be. In his closing address the respondent, instead of commenting on the evidence, proceeded to give fresh evidence. Upon this occasion he saw fit to attack the petitioner, alleging infidelity, saying in so many words that the petitioner had committed adultery. Nonetheless he was willing to have her back. He addressed me in open court that he did think of killing people and he did not do so solely because he felt that those people, including the petitioner and her maiden family, were people who were uneducated and not worthy of killing.

5. Having regard to the conduct of the respondent in court and having regard to the petitioner's evidence which the respondent was unable to cause any doubt in my mind or seriously refute in any way, I am of the opinion that the conduct of the respondent as alleged by the petitioner has been proved. I come to the conclusion that while at times the respondent could be a kindly husband when he chose to do so, yet at another time when he had a temper, his was violent and would not be controlled in any way. He never made any effort to control himself. To force the petitioner to go back to the respondent with the children tantamounts to forcing them to subject themselves to a man with violent temper and expose themselves to the risk of their limbs and life. In the circumstances, I accept the evidence of the petitioner that the conduct of the respondent is such that no wife can reasonably be expected to live with a husband of such nature. Accordingly, I pronounce the decree in favour of the petitioner and that the custody of all three children will be given to the petitioner. As to maintenance, as I understand it, the financial circumstances of the respondent was such that obviously he was in no position to pay any lump sum. He had lost his job in 1974 and I understand he did not get another job until 1975. However, the petition was caused by the unreasonable conduct of the respondent and an interim order had been made for interim provisions and maintenance, I will make an order that the respondent must contribute now, instead of three hundred, four hundred dollars per month for the maintenance of the petitioner and the three children.

6. I will make no order of access at the moment in respect of any of the children. That is in view of the attitude of the respondent who said in open court that if I should not force the wife and children to go back to him, he would not pay any maintenance whatsoever. He would leave the family and would not care for them. It seems that it is all a matter of dollar and cents. That is a matter that remains to be seen. However, I give liberty to apply and if the respondent proves himself to be a more reasonable man in the future, he may be granted reasonable access to the children. And if the circumstances of the respondent is a bit better or worse, that order for maintenance may be varied.

7. Yes, what does he want to say?

RESPONDENT: I ask your Lordship not to make an order for a decree but an order for separation so that I could have a final chance; and during the period of separation, I am willing to pay her maintenance. I have never laid my hands on her for the few years of our marriage and I quite tolerate with her. If you make an order for decree - make a decree order then she has no face to come back for a reunion. I honestly ask your Lordship to make an order for separation instead of a decree order. I love my children as well. Say, to make an order for three years' separation.

COURT: I have already made my decision and this is not a decision I make very lightly.

Representation: