Li Lau Siu Ngar v. Li Fu Kuen

HCMC000256/1971

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 256 OF 1971

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Coram: Pickering, J.

Date of Judgment: 26 March 1973

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JUDGMENT

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1. This is a wife's petition for divorce. The parties were married at the Kowloon Marriage Registry on the 28th April 1960; in September 1970 the wife left the husband as a result of what she alleges was his cruelty and failure adequately to maintain herself and the four living children of the marriage. These are respectively a daughter now aged 12, another daughter who is almost 11 years old, a son now 9 and a further daughter aged 7. At the present time all the children are living with the respondent in Tokwawan, whereas the petitioner has an address at Castle Peak Road, but for the most part sleeps at Hennessy Road on Hong Kong Island where she is employed as an amah.

2. The petitioner's allegations of cruelty date back to 1961 when, she alleges, the respondent hit her with a beer bottle causing her leg to become black and blue. There were allegations that upon subsequent dates she was scratched and punched on the face by the respondent and that he threatened to disfigure her to the extent that she would afterwards be unable to make a living. Other allegations were of having her hair pulled, her head banged against the wall and of being beaten up to the extent that bruises resulted. The petitioner further complains that when the respondent used to come home late at night he would not let her sleep but expected her to get out of bed and talk to him and that she was frequently not allowed to sleep until the early hours of the morning. Her allegations of beatings, all of which are denied by the respondent, are to some extent corroborated by the petitioner's mother and sister, the former of whom testified to seeing the petitioner's black and blue leg and to seeing scratches on her face whereas the latter testified to seeing scratches on the petitioner's hands and bruises on her face. The petitioner further complains that the respondent beats the children, an allegation which was denied by the respondent but which was, to some extent, corroborated by the sister's testimony that she had seen the second daughter's arm black and blue.

3. In addition to her complains about physical violence on the part of the respondent, the petitioner also testified that, in the presence of friends and relatives, the respondent humiliated her by accusing her of being a prostitute and of supporting a drug addict.

4. I do not propose to recount in detail the unhappy history of this marriage but merely to say that I was impressed by the testimony of the petitioner and wholly unimpressed by that of the respondent. I am fully satisfied that the beatings which she described did in fact take place and also that on one occasion, after the respondent had threatened to disfigure her with acid, a bottle of acid remained under the connubial bed for some two or three nights to the terror of the petitioner.

5. It was common ground that during a considerable period of the marriage, the petitioner had been a dance hostess, but her reasons for adopting this type of employment were contested. It was her evidence that her husband took her to ballrooms to obtain such employment for her, whereas the respondent claimed that his wife had told him that she had a job at the Peninsula Hotel and that, his suspicions being aroused, it was only after he had followed her by car "for some months" that he discovered that she was working in a ballroom. His evidence was that he protested at this form of employment but it was not explained why it was necessary to follow the petitioner for some months before the nature of her employment was sufficiently clear to him to bring him to the point of protesting. The petitioner's evidence was that, as a dance hostess, she earned $700 to $800 a month and that the respondent took the whole of her earnings, allowing her merely $2 per day. On the question of whether the petitioner adopted this mode of employment from choice, it is perhaps significant that at no time since she left the respondent has she worked as a dance hostess and that she is now employed as an amah at $400 per month. I am satisfied that it was the respondent who induced the petitioner to take up employment as a dance hostess.

6. As to the allegations of the respondent's failure adequately to maintain the petitioner and her children, it was the evidence of the petitioner that at the time when she was working, the respondent gave her no money at all and that when she was not working he gave her sometimes $70 and sometimes $140 a month. It was the respondent's evidence that he regularly gave the petitioner $400 a month by way of two instalments of $200 each. The petitioner, however, testified that during the whole of their marriage, the respondent had only given her $400 a month during one period of four consecutive months, after which the amount was again reduced. Whilst I cannot but feel that there may be some exaggeration in the petitioner's assertion that during some months she received only $70 for the maintenance of herself and the family, on the balance of probabilities I prefer the petitioner's evidence, and I am satisfied that, whatever the exact amount received by the petitioner, there was in general a failure on the part of the respondent adequately to maintain his family.

7. Apart from denying the petitioner's allegations, the respondent claimed that her evidence and that of her mother and sister represented a conspiracy between the three of them, but I was fully satisfied that there was no such conspiracy and, at the end of the hearing, I ordered that a decree nisi issue and adjourned consideration of the ancillary orders until such time as I had seen the two older children and also had the benefit of a report from the Social Welfare Department as to the living conditions and related circumstances of both the petitioner and the respondent, and as to the children's probable welfare in the custody of either.

8. When I saw the two older children in my chambers they left me in no doubt whatever as to their strong preference for living with their mother. Moreover, as a result of what they told me about the two younger children I decided that I must also see the little ones, both of whom expressed to me a preference for living with their father, whilst being unable to give me any specific reason for not wishing to live with their mother.

9. The present living conditions of the children are unsatisfactory. They live with the respondent in what the welfare officer describes as a tiny, shabby cubicle a few steps underneath the kitchen and next to the toilet. The place is described as poorly ventilated and standing a high chance of flooding after rain. The two younger children sleep with their father in a double bed whilst the older two sleep in a folding bed at the entrance to the cubicle. The respondent is away for most of the day at work and elsewhere, and returns only at 10 or 11 o'clock at night. The children are taken to school by their father and collected from school daily by their mother, the petitioner, who meets them outside their school and then escorts them to the respondent's address where she leaves them at the staircase. According to the respondent, whilst at home during his absence, the children are looked after by a neighbour, an elderly man. This cannot be regarded as an arrangement in the best interests of the welfare of the children; moreover, I am satisfied as a result of my interviews with the children, that the older two are exposed to a measure of cruelty on the part of the respondent which does not extend, to any appreciable extent, to the two younger children.

10. It is manifest that as far as the two elder children are concerned they will be far better off with their mother. To remove them from the respondent's address however, will be to alter seriously the condition of the two younger children, for the eldest girl, the 12-year-old, is the little housewife of this establishment and it is she who cooks for herself and her brother and sisters. The two younger children are incapable of looking after themselves in this regard and I have no evidence of any adequate alternative facilities for them during the lengthy periods when the respondent is not at home. I am in no doubt that it is in the best interests of all the children that they should be in the custody, care and control of the petitioner. This is in the paramount interests of the welfare of the children and it also reflects the conduct of the parties and acknowledges the fact and advantage of brotherhood and sisterhood. The custody, care and control of all the children is, therefore, awarded to the petitioner. I am informed that there is accommodation for the children at the petitioner's address. Her sister moreover, has indicated that she will assist in the upbringing of the children though in what manner and to what extent, was not specified.

11. The petitioner's claim for maintenance for herself is, as patently on the evidence it can only be, for nominal maintenance and I award her a sum of $1 ...(illegible) month to be payable on the first day of each succeeding month after the date of this judgment.

12. The award of maintenance in respect of the children presents more difficulty since I cannot be confident that I have heard the truth in regard to the respondent's earnings. He is a shoe-maker by trade and he himself stated his earnings at $450 to $500 a month, whereas the petitioner said that in the course of their quarrels about money he sometimes told her that he would not give her any more money even though he was earning $900 a month. The respondent was asked in cross-examination whether he had any documentary evidence as to his earnings and replied that he had none although, no doubt, his employer would have such evidence. When he was asked if he could produce documents from his employer, his reply was that his employer would inevitably refuse to let him have a record of his earnings. In all the circumstances, I award a sum of $50 a month as maintenance in respect of each of the four children, such sum to be payable at the same time as the nominal maintenance is to be paid to the petitioner.

13. Having today heard counsel as to the mechanics of the actual transfer of the physical custody of the children and as to access on the part of the respondent, I order that such transfer take place at 2.30 p.m. on Thursday 29th March 1973 at the offices of the petitioner's solicitors, Messrs. Johnson, Stokes and Master, Hong Kong and Shanghai Bank Building, 1, Queen's Road Central; and that the respondent have access to the children upon one day per week during hours to be mutually agreed between the parties. In default of agreement there will be liberty to either side to apply.

14. The petitioner is entitled to the costs of her action which must be taxed under the Legal Aid Regulations.

Representation:

Mills-Owens (Johnson, Stokes & Master) assigned for petitioner

Miss Ida Cheung (H.H. Lau & W.S. Lo) assigned for respondent.