Chan Tam Lai Man v. Chan Shu Yam

HCMC000037/1967

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

Action No. 37 of 1967.

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Coram: Rigby, Ag.C.J.

Date of Judgment: 18 May 1968

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JUDGMENT

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This is a wife's Petition for Divorce on grounds of cruelty and one alleged act of adultery. The Petition is defended by the husband and an Answer was filed. The Answer consisted, for the most part, of a blank denial of the divorce allegations contained in the Petition. The Answer, if I may say so, appears to be very far from being a model of careful drafting and Mr. Suffiad, who appears for the Respondent - but who, it is right to say, was not the counsel concerned in settling the Answer - has, in my view, been very considerably hampered in his conduct of the case by the narrow lines upon which the Defence was prepared and within the confines of which he has been constrained to conduct the case for the Respondent.

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

3.The Petitioner complains that the Respondent is a man of ungoverned temper, addicted to gambling, and that he has, since shortly after the marriage, exhibited a hostile disposition towards the Petitioner and has manifested an utter lack of affection for her and has thereby pursued a course of conduct calculated to cause, and in fact causing, the Petitioner distress and injury or apprehended injury to her health.

4.In view of the paucity of the evidence put forward to support the Petition it is, I fear, necessary to examine her complaints in some detail. At the outset of her evidence the Petitioner said that the marriage had been unsatisfactory from the start; that the Respondent used to come home at about 3 a.m. to 4 a.m. two to three times a week; that he declined to say where he had been or, alternatively, would say that he had been playing mahjong. He was very short tempered and even when he came home at these late hours, he would expect the Petitioner to prepare a bath for him and provide him with food. It is perhaps not entirely without significance that the first specific complaint of cruelty is not alleged to have occurred until some time in 1959 - when the parties had already been married for approximately some 18 months. At that time the Petitioner was employed as a salesgirl in a general emporium, her hours of work being from 10.30 a.m. to 11.00 p.m. She complains that one evening during that year - she was unable to pinpoint the period of time more specifically - she had difficulty in boarding a bus to take her home with the result that she had to employ a 'pak pai'. She arrived home some 15 minutes late. Upon her arrival the Respondent was most suspicious as to where she had been. He scolded her and abused her, hit her with his fists and twisted her arm. The incident took place in the bedroom. She rushed out of the bedroom into the sitting room, closely pursued by the Respondent carrying a high heeled shoe with which he tried to hit her. Fortunately her mother was in the sitting room and prevented the Respondent from carrying out his intentions. She said that she was very distressed by the incident and suffered pain on her back where the Respondent had struck her with his fists.

5.The next incident complained of allegedly took place some time in 1962 - some three years later. At that time the Petitioner was employed at the Golden Gate 'Art' Studio, her hours of work being from 10 a.m. to 10 p.m. She complains that one evening in 1962 - again she is unable to specify the approximate month when the alleged incident occurred - she got home some 10 to 15 minutes late. The Respondent abused her and accused her of having been out with a man.

6.She complains that from 1962 onwards the Respondent started staying out even later at nights, coming home at 4 a.m. to 5 a.m. three to four times a week and offering no explanation as to where he had been or, alternatively, saying that he had been playing mahjong. At that time the Respondent was employed as a store supervisor at an emporium in North Point, his hours of work being up to 10.30 p.m. in winter and 11 p.m. in summer.

7.Taken in chronological order, the Petitioner next complains that between June and September, 1962, the Respondent, on four or five occasions, compelled or induced her to masturbate his penis orally, thereby causing her considerable distress. At a later stage in her evidence she admitted that such conduct was considerably short of actual masturbation; that it was for a very short duration and culminated in normal sexual intercourse.

8.In the latter part of 1963 the Petitioner was employed as cashier at the Golden Gate Studio. She had made arrangements to go to the cinema one evening, taking her five-year old son with her (despite the fact that it commenced at 9.30 p.m.), and had asked a fellow worker, a male, to obtain a ticket in advance for her - a second ticket not being also necessary for her five-year old son. After having secured the ticket she telephoned the Respondent, at his place of work, telling him of her intention. The Respondent was angry, apparently suspecting that she was going to the cinema with the male employee who had secured the ticket for her. He told her she was not to go but she insisted she was going. The Respondent left his employment, came to the studio, took possession of her handbag, and tore up the ticket. He then pressed her head down on the counter and struck her several times on the back. She ran out of the studio but he followed her and punched her several times.

9.During the early part of 1963 the Petitioner had apparently heard certain rumours that the Respondent was associating with female fellow-employees at the emporium where he was working and that he had been out dancing with them. She mentioned the matter to the Respondent, specifying the names of three or four particular girls. He denied the suggestions. In the summer of 1963 she found a photograph of one of these girls, whom she herself knew, in the pocket diary of the Respondent. She challenged the Respondent about it; she wanted to tear up the photograph but he said that he would return it to the girl, and she agreed to that course. Some months later she found the photograph in the pocket of his pyjama jacket in a drawer containing his underwear. She reminded him of his agreement to return the photograph to the girl and, upon him offering no explanation for not having done so, she tore up the photograph.

Later, in early 1964, she again complained to him that she had heard he had been going out with girls, the names of some of whom she had mentioned. He asked her forgiveness and said that it would not happen again.

10.In March, 1964, the parties occupied a first floor flat at 50 Robinson Road. The Petitioner's sister occupied a ground floor flat in the next building, which was separated by a narrow intervening lane or alleyway. The windows of both flats - or some of such windows - apparently looked out on to this lane or alleyway. Both the Petitioner and the Respondent were at that time working long hours - up to 10.30 p.m. or 11 p.m. at night - in the shops where they were separately employed. The Petitioner complains that one night when she got home from work the Respondent did not return until about midnight. Being suspicious that he had been out philandering she asked him where he had been. He became angry, twisted her arm behind her back and punched her several times on the back and used abusive language to her. She cried out, "Help," and shortly afterwards her mother arrived from the flat next door, told the Respondent to stop and scolded him for what he had done.

11.One day in the summer of 1964 the Respondent, according to the Petitioner, arrived home about 8 a.m. In answer to her query as to where he had been he said he had been playing mahjong. She told him there was no money for household expenses and asked him for money. He said he had none. Later he went into the bathroom: she seized the opportunity to search his pockets and found $300 in notes. Being in need of housekeeping money, she took the $300 and then told the Respondent, on his return, what she had done. He was very angry and demanded the return of the money. Upon her refusing to return it he seized her arm and twisted it. She then told him that she was going to her mother's home by bus (the parties apparently no longer lived in Robinson Road) and that if he boarded the bus with her she would return the money to him on the bus. Her reason for saying this was that she genuinely wished to go and see her mother and she felt that at any rate he wouldn't assault her publicly on the bus. He admitted that they left the flat together. Prior to leaving she had transferred the $300 to her handbag from the place where she had hidden it. They crossed the road to the bus stop. Then, the Respondent apparently changed his mind, seized hold of the Petitioner's arms and started to drag her back to the house. In the course of being dragged she slipped and fell. He continued to drag her along the ground, thereby causing bruises to her arms and legs. He got her back to the flat. There, the commotion caused between them was apparently such as to cause a police constable to come to the flat. The Petitioner told the constable it was just a domestic quarrel and he left. The Petitioner was so distressed by the incident that she left the matrimonial home and, according to her evidence, stayed with her mother for the next two weeks.

12.In October, 1964, the Petitioner's sister, who was unemployed at the time, was living with them and in fact slept on a sofa in the same room as the Petitioner and the Respondent who shared a double bed in that room. The Petitioner's mother was at that time living out at Shaukiwan. The Petitioner complains that one night she saw the Respondent get out of bed, put his hand under the quilt covering the Petitioner's sister on the sofa where she was sleeping, and touch or attempt to touch, her sister's body. The Petitioner said that she had been watching similar conduct on the part of the Respondent for several nights previously and had in fact reproached him for his conduct and that he had denied it. On this night she was deliberately keeping watch. On seeing what he was doing, or trying to do, the Petitioner switched on the light and then saw the Respondent withdraw his arm from under the quilt. The Respondent got back into the bed and the Petitioner reproached him for what he had done. The Respondent got angry and started to hit her, causing her to call out and thereby awaken her sister.

The sister, the testimony of whom was taken de bene esse by the Registrar before the hearing of these proceedings since she was leaving Hong Kong to get married and to take up residence in Singapore, gave evidence supporting the Petitioner's testimony. She said she remembered the incident. She was awakened by someone touching or stroking her on her foot up to her thigh. When she felt the movement she actually turned round in bed and saw the Petitioner squatting by the side of the sofa. She withdrew her leg and, at the same time, the light was switched on. She heard the conversation which then took place between the Petitioner and the Respondent and the retorts of the Respondent; she heard the Respondent strike the Petitioner; she heard the Petitioner call out for help, and she then intervened and told the Respondent to desist. I will comment on this evidence at a later stage.

13.At paragraphs 20 and 21 of her Petition, the Petitioner avers that in March, 1965, the Respondent raped the Petitioner's sister or, in the alternative, committed adultery with the sister with the sister with her consent. The only evidence in support of this allegation, which is in fact one of rape, is - as one would, indeed, expect - from the sister herself. Here again that evidence was taken by the Registrar de bene esse at the same time as the allegation as to indecent assault. In March, 1965, the Petitioner and the Respondent were living with the Respondent's parents at premises in Health Village Estate, Hong Kong. The Petitioner's sister, who was by then divorced and who was unemployed at the time, slept on a sofa in the sitting room. She said that at about 8 a.m. one morning in March she was awakened by the Respondent, who was then still dressed in his pyjama trousers, and who was trying to pull down her pyjama trousers and the underpants she wore underneath. Shen then described the circumstances in which the Respondent, according to her testimony, raped her. She did not cry out nor, indeed, did she report the matter to anyone until later, in February or March, 1967 - approximately two years after the alleged incident - when the Petitioner told her that she was going to divorce the Respondent, and she then told her sister about this incident.

14.The Petitioner next complains that since about March, 1965, the Respondent started to stay out about five nights a week, telling her that he had been out gambling.

15.Since May, 1966, the Petitioner complains that the Respondent has had no fixed employment, apparently eking out a precarious livelihood as a broker selling imitation jewellery, and has only given her about $100 a month for housekeeping and family expenses.

16.In support, presumably, of her general complaint as to the callous and indifferent attitude shown towards her by the Respondent, the Petitioner alleges that on a number of occasions during the ten years of marriage the Respondent, in order to pay his gambling debts, without her knowledge pawned some of her clothing and, indeed, her engagement ring. The engagement ring was never redeemed. She added that, for the same purpose, he had from time to time pawned his own clothes.

17.In or about September, 1965, the Respondent lost his employment and thereafter the Petitioner became the sole supporter of the family. In order to make more money the Petitioner reluctantly became a dance hostess employed at, or by, a specified ballroom. She obtained such employment through the assistance of a friend of the Respondent. She continued as a dance hostess until February or March, 1967. It was in March, 1967, that she consulted solicitors with a view to instituting divorce proceedings, and such proceedings were filed in April, 1967. During the period the Petitioner was working as a dance hostess the Petitioner continued to live with the Respondent. In fact she lived with him right up to the day the Petition was served on him on the 26th April, 1967.

18.The Petitioner complains that one afternoon in January, 1967, when she was about to leave, somewhat earlier than usual, for her work as a dance hostess, the Respondent would not permit her to go; that he in fact removed her dress and shoes - or prevented her from putting them on - and that he tried, against her will, to have sexual intercourse with her. His efforts were unsuccessful and she later left for work.

19.Finally, the Petitioner complains that towards the latter part of 1966, or early 1967, when she came home late - sometimes as late as 2 a.m., 3 a.m., 4 a.m., or even 5 a.m. - from her work as a dance hostess, despite her fatigue the Respondent would still demand to have sexual intercourse with her, and when she refused he would threaten to get people to kill her or disfigure her by throwing corrosive acid at her.

20.The Petitioner avers that by reason of the Respondent's intemperate and inconsiderate treatment of her she lost weight and became emaciated and that she suffered from prolonged headaches and insomnia. She admitted in examination-in-chief that she never consulted a doctor, for the simple reason that she said that one or two visits would not have cured her complaints.

21.Such is the sum total of the Petitioner's evidence. Her mother, called as a witness, said that the Respondent was a bad tempered person and often used abusive and obscene expressions. The mother sought to corroborate the 1959 incident referred to in paragraph 4 within in that she says that she heard the Petitioner return home some time after the Respondent had come in; that she heard the Respondent scolding the Petitioner and then saw the Respondent chasing the Petitioner into the sitting room brandishing a high-heeled shoe in his hand with which he appeared to have the intention of wishing to strike the Petitioner. He was prevented from achieving his purpose by the presence of the witness herself and that of the principal tenant, both of whom were in the sitting room at the time. Again, she sought to corroborate the March, 1964, incident referred to in paragraph 10 within. At that time she was visiting her younger daughter at No. 52 Robinson Road. She heard the Petitioner cry out from the adjacent premises and at the same time heard the Respondent scolding her. The witness rushed across to the Petitioner's flat, entered it and saw the Respondent twisting her daughter's left arm and with his right hand pressing her forehead down. She told him to stop and threatened to hit him if he didn't.

22.The younger sister, to whom I have already referred and the deposition of whom was taken de bene esse, in addition to her testimony as to the alleged indecent assault and the rape, seeks to corroborate the evidence of the Petitioner in certain matters, to wit, the general allegation that the Respondent was bad tempered and used abusive and obscene language; the allegation that as far back as 1957, shortly after the marriage of the Petitioner and the Respondent, the Respondent would come home two or three times a week at about 2 a.m. and expect the Petitioner to prepare a bath and/or a meal for him; and the allegation referred to in paragraph 4 concerning the March incident in respect of which she says that from her adjoining flat at 52 Robinson Road she heard the Petitioner, at a late hour at night, calling out for help, heard the Respondent abusing the Petitioner, and that her mother left her, the sister's, flat in order to go to the Petitioner's assistance.

23.So much for the case for the Petitioner. Turning now to the case put forward by the Respondent. As I have already stated his defence has, in my view, been considerably hampered by the somewhat terse and curious manner in which his written Answer to the Petition has been pleaded.

The Answer consists of a combination between a general denial of most of the allegations of cruelty and inconsiderate treatment complained of, and the allegation of adultery and/or rape and, as an alternative pleading, what I might fairly describe as a confession and avoidance of some of the allegations made.

He denies the general allegations that he is a person of ungoverned temper, or that he is addicted to gambling or that he showed a hostile disposition towards his wife or an utter lack of affection towards her. He denies that after the marriage he used to return home several times a week at 2 a.m. to 3 a.m., but he admits that about once a week he did return home late because he had to stay at his place of employment to work on the accounts. He denies that when he used to return home late he used to awaken his wife and ask her to prepare a bath and/or food for him, although he admits that he used to do this if she was in fact still awake when he returned.

24.As to the incident in March, 1959, referred to in paragraph 4 herein the Respondent admits that there was a quarrel when the Petitioner returned home late, but he maintains that the quarrel was of short duration, that there was no question of him assaulting his wife and in fact that there was a reconciliation that same evening and he offered to take her out for a meal since she had not yet apparently had her evening meal.

I am satisfied that there was a quarrel and I accept the evidence of the Petitioner, corroborated by her mother, that the Respondent did chase her out of the bedroom, brandishing a high heeled shoe in his hand. Whether or not he would have struck her with the shoe if he had not been intercepted by the Petitioner's mother and the principal tenant - the latter of whom was not called as a witness - must remain a matter of speculation. I am, however, not satisfied that there is really sufficient evidence that the Respondent assaulted the Petitioner in any way in the bedroom before she rushed out into the sitting room.

25.Turning now to the next incident complained of some time in 1962 and which is referred to in paragraph 5 herein. It is to be noted that this incident did not allegedly occur until some three years later. The Respondent gave a somewhat inconsistent and conflicting account of this incident. Although at first unable to remember, he finally purported to remember that the Petitioner did in fact get home after his own return. In cross-examination of the Petitioner it was suggested to her by Respondent's counsel that after she had got home late the Respondent accused her of having been out with a man called Luk whom she admittedly knew before her marriage. She denied that suggestion and said that the Respondent simply accused her of having been out with "a man". The Respondent himself, in evidence, denied that he had asked the Petitioner whether she had been out with Luk and denied that he accused her of having been out with any man. He merely said that he asked her where she had been and, in order to avoid a row, accepted her explanation that she was late because she was unable to get a bus. The incident itself - if indeed it is worthy of the name "incident" - is really so trivial that it is hardly worth referring to it. I have referred to it only because it is specifically mentioned in the Petition - and supported by the evidence of the Petitioner - as one of the many grounds put forward upon which the allegation of cruelty is sought to be supported.

26.The Respondent denies the allegation that as from 1964 he made a habit of returning home in the early hours of the morning three or four times a week and that he either offered no explanation as to where he had been or, alternatively, said that he had been playing mahjong. He said that sometimes - perhaps once or twice a week - he was kept late at the store where he was employed because he had to dress the windows of the store after it had been closed to the public - the hours of closing being 10.30 p.m. in the winter and 11 p.m. in the summer. He said that his wife well knew that this was part of his duty. He admitted that once or twice a month he did stay out late playing mahjong. In this matter I have no doubt that there is an element of truth in the testimony of both parties in that the Respondent was, to some extent, a mahjong addict and that he did stay out late at night more than once or twice a month but, at the same time, I am of the opinion that the evidence of the Petitioner that he stayed out three to four times a week up to 4 and 5 a.m. is probably exaggerated.

27.As to the allegation that the Respondent compelled or induced the Petitioner to take his penis in her mouth: the Respondent said that this happened only once although he admitted that he did ask the Petitioner to do this on other occasions, but he accepted her refusal and did ask not seek to press the matter further. With regard to this conduct it is, I think, not irrelevant to refer to the judgment of Lord Merriman P. in Holborn v. Holborn,⁽¹⁾ in the course of which he said:

"No one can sit here as long as I have sat without realising that there is the greatest diversity of standards between one set of spouses and another as to what is or is not a normal standard of sexual intercourse. What will be regarded as grossly excessive demands by one wife (or by the husband, as the case may be) will be regarded as quite normal and reasonable by another wife or husband. I go further. There are things strictly outside what may be called normal sexual intercourse which will be regarded by one wife (or one husband, as the case may be) as so revolting as to be unmentionable, whereas other couples will regard them as nothing more than natural, normal love-making. Anyone who is familiar with the class of evidence and the class of controversies which arise in this court will know exactly what I mean."

That passage in the judgment was quoted by Sir Jocelyn Simon P. in the case of C. v. C.⁽²⁾

In the Holborn & Holborn⁽¹⁾ case the court held - and I quote from the headnote:

"Where a spouse persists in making sexual demands which are known to be regarded by the other spouse as inordinate or revolting, such persistent lack of consideration may amount to a course of conduct so grave and weighty as to justify the other spouse in withdrawing from cohabitation - a fortiori where such a course of conduct is calculated to affect the health of the other spouse."

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

28.As to the Golden Gate Studio incident in 1963 complained of in paragraph 8 herein: the Respondent says that the incident is partly true and that the Petitioner did phone him at his place of employment and did tell him that she was going to the cinema with her son. The Respondent then went to her place of work. It is by no means clear why he apparently found it necessary to go and see her, but I assume that it was because he objected to her going to the cinema - presumably without him. Upon arrival at her place of work he opened her handbag and found two tickets. A ticket was unnecessary for the five-year-old son and the Respondent asked her to explain the other ticket. She was unable to do so and he accordingly tore up the ticket. A row ensued and the Petitioner threw a transistor set at him. He then left. He denied assaulting her.

Here again, there is a direct conflict of testimony as to what actually occurred. The Petitioner said there was only one cinema ticket; the Respondent says there were two; the relevant paragraph in the Petition itself refers to "cinema tickets". It seems to me to be a reasonable inference that the Respondent was annoyed when his wife telphoned him and said that she was going to the cinema - without him - and that was why he went to her place of employment. Upon the evidence I am quite unable to say whether there was one cinema ticket or two. It is clear, however, that a quarrel ensued, but upon the evidence I am unable to find that the Respondent assaulted the Petitioner in the manner concerning which she has testified, or at all.

29.The allegations of philandering with shop girls working in the same shop with the Respondent and the finding by the Petitioner of the photographs of a girl in the pocket diary of the Respondent and later the same photograph in the Respondent's pyjama pocket in a drawer containing his underwears, appear to me so relatively trivial that I do not propose to make further reference to them. Whether such allegations are taken individually or in their cumulative effect in relation to the alleged pattern of conduct of the Respondent to the Petitioner over their married life of 10 years, they appear to me to fall far short of conduct amounting to cruelty.

30.Turning now to the incident complained of by the Petitioner in March, 1964, when the parties were living at 50 Robinson Road. The Respondent admits coming home somewhat late and said that the Petitioner, upon his arrival, accused him of having been out with girls. He denied it; she started to talk loudly and strike him with her hands. He grabbed hold of her hands and she then said that if he did not release her she would shout out for help. He did release her. I am satisfied from the evidence of both the Petitioner's mother and her sister that the Petitioner did in fact shout out for assistance and that it was in consequence of her shouts -together with the noise of the quarrel preceding it, or continuing at the same time - that the mother went over from the sister's flat to the Petitioner's flat. The mother said that when she arrived she found the Respondent twisting the Petitioner's left arm and pressing her forehead down on the bed. I accept that evidence. But there is, quite clearly, a direct conflict of evidence as to what actually took place between the parties before her arrival. Was it the Respondent who assaulted the Petitioner in the manner complained of: or was it, on the other hand, the Petitioner who, indignant at her husband's late return and suspicious as to where he had been, took the initiative by abusing him and trying to strike the Respondent, thereby causing him to attempt to control or restrict her actions? I find the evidence in this matter inconclusive.

31.As to the incident complained of in the summer of 1964 when the Respondent, according to the evidence of the Petitioner, arrived home about 8 a.m. after a night's gambling and mahjong. The Respondent admitted that he got home about 7 - 8 a.m. but said that he had not been gambling, but had been at the company's store dressing windows. The $300 the Petitioner found and removed from his pocket was money entrusted to him by a customer as a deposit on account of the purchase of a number of items of clothing, which he specified. He told this to the Petitioner and said that he must have the money back, but she refused to return it and left the house. He followed her to the bus stop insisting on the return of the money, but she persisted in her refusal to return it. He asked her to return to the house since it was so embarrassing to quarrel in the street. She started to return, but, as she was about to cross the road, slipped on the pavement kerb and fell, thereby causing abrasions to her arm and leg. This increased her anger; she lost her temper and blamed the Respondent for her fall. Upon returning home, in an excess of anger she broke all the glasses in the house. A police constable heard the noise and came to the door but the Petitioner sent him away saying it was only a domestic quarrel.

Here again there is a direct conflict of evidence as to what actually occurred. Often one is able to form an opinion as to the credibility of a witness by his or her demeanour in the witness box. I have been unable to form any such opinion in this case since it appeared to me that from time to time both parties were not entirely truthful, or, alternatively, were exaggerating, in their evidence to the court. Doing the best I can with the evidence as to this incident I think it is more than probable that the Petitioner's testimony is true, that the Respondent had in fact been out, as she told me, playing mahjong all night. Whether or not the $300 in his pocket was in fact the proceeds of gambling or, as the Respondent himself said, deposit money paid to him by a client, seems to me uncertain although, here again, the former appears to me to be the more probable explanation. That the Respondent was angry that his wife had removed the money from his pocket and refused to return it to him, I have no doubt. Whether he accompanied her to the bus stop as she alleges, or whether he followed her to the stop after she had left the house, seems to me uncertain. It is, however, clear that they were both together at the bus stop. On the evidence it seems to me more probable than not that the Respondent did in fact try to pull or drag the Petitioner back to the house and that the minor abrasions which she sustained to her leg and arm were caused not by her slipping and falling as the Petitioner alleges, but by her being dragged along the ground after she had fallen down while he was pulling her.

32.Turning now to the indecent assault allegedly committed by the Respondent on the Petitioner's sister in March, 1965. The Respondent emphatically denies that any such assault took place. He says he does remember the incident. He says he got out of bed to urinate; he noticed that the quilt covering his sister-in-law on the sofa on which she was sleeping was partially on the floor. He picked it up and put it on again over her. The light was then switched on and the Petitioner at once accused him of having indecently assaulted her sister. He denied it, but she went on nagging and accusing him for the next two to three hours.

I am far from satisfied that this allegation has been proved. The Petitioner herself said that for several nights previously she had been watching the Respondent and had already reproached him for indecently assaulting, or trying indecently to assault, her sister. If in fact that was true - and I am not persuaded as to its truth - I find it very difficult to believe that, despite this warning, the Respondent would again quite deliberately have tried to assault his sister-in-law indecently. The Petitioner said that when she switched on the light her sister was asleep - or appeared to her to be asleep - and she did not awake - or appear to awake - when the light was switched on. Her sister herself said that she was in fact awakened by someone - the Respondent - stroking her leg and she actually turned her face to see who it was. Thereafter she heard the Petitioner accusing and reproaching the Respondent and she heard the Respondent denying the accusation, and she heard the quarrel that then ensued, culminating in the Respondent striking the Petitioner. Making every allowance for the natural reluctance of a relative - particularly a relative who was then enjoying the hospitality of her brother-in-law - interfering in any quarrel or dispute between husband and wife, it seems to me, nevertheless, quite remarkable that if in fact this incident occurred the sister did not herself instinctively react and protest at the time against this allegedly indecent assault, or attempted indecent assault, committed upon her and, secondly, that she should not have supported the Petitioner in respect of her accusations and reproaches to the Respondent as to his behaviour and thereby give the lie to his continued denial of any alleged indecent assault.

33.As to the allegation of rape upon the sister-in-law in March, 1965 - a matter of which she made no complaint or report to anyone until March or April, 1967-the Respondent denies the allegation.

It is sufficient to say that I have carefully considered the evidence in relation to this extremely serious allegation, and whether the standard of proof, or the degree of proof, required is proof beyond reasonable doubt or proof upon the balance of probabilities, I am wholly satisfied that the evidence is quite inadequate to support the charge made.

34.The Respondent denies that as from 1965 - or, indeed, at any time in their ten years of matrimony - he stayed out gambling about five nights a week. I have already said that in my view it is probably true that the Respondent was addicted to mahjong and that he did stay out late gambling more frequently than he should have done, and more frequently than he is prepared to admit. But I think it probable that the allegations by the Petitioner that he stayed out all night about five nights a week is very considerably exaggerated.

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

36.The Respondent admits that he did on one occasion - and on one occasion only - pawn some of the clothes of the Petitioner and also her engagement ring, but he said that this was done with her full knowledge and consent. The clothes remained in pawn for some considerable time since the Respondent said that he paid interest on the loan every four months in order to preclude the pawned articles from being sold. It is not apparent from his evidence as to whether he, in fact, ever redeemed the clothes.

As to the engagement ring, the Respondent said that towards the end of 1966, the Petitioner told him that she had purchased a piece of jade, but asked him to get it made up into a ring. He did so; and had the ring encircled by twenty-two pieces of diamond chips at a total cost of $565. He gave this to the Petitioner in place of the pawned ring which, in any event, the Petitioner had told him that she did not like very much, and it had in fact cost less than $565. It is right to say that none of this was put to the Petitioner in cross-examination; at the same time I see no reason to disbelieve the Respondent's evidence in this matter, and I accept it.

The Respondent admitted that he had occasionally pawned some of his own clothing, but he said that this was not done in order to pay his gambling debts, but because he was short of household expenses. I think it is more than probable that he was short of household expenses. I think it is more than probable that he was short of household expenses because he had first to meet his gambling debts.

37.The Respondent admitted that in or about 1965 he lost his employment, but he said that that was because the emporium at which he was employed had closed down the particular department in which he worked and had been unable to absorb him, in his capacity as a Department Supervisor, in any other department. He denied that the Petitioner - as she had alleged - had always contributed the whole of her earnings to the household expenses.

38.The Respondent admitted that in 1966 the Petitioner became a dance hostess; he alleged that she had in fact been a dance hostess before he married her and at a time when they were in fact living together. The Petitioner herself denied that she had been a dance hostess at any time before the marriage. The Respondent denied the allegation - referred to in paragraph 17 - that one afternoon in January, 1967, he prevented the Petitioner from leaving for her work and insisted on having sexual intercourse with her.

39.Finally, he denied the allegation - made in paragraph 19 herein - that when she came home in the early hours of the morning from her work he insisted, despite her fatigue, on having sexual intercourse with her, and he denied that when she refused his demands he threatened to get people to kill her or disfigure her. Allegations of this nature, made in support of a divorce petition, are very easy to make and difficult to disprove other than by the bare assertion that they are not true. On the balance of probabilities I am not satisfied that the Petitioner's testimony as to the Respondent's alleged threats to have her killed or disfigured has been proved.

40.It is manifest that as from May or June, 1966, the Petitioner had been earning a fairly substantial income as a dance hostess. The Respondent, on the other hand, was eking out a somewhat precarious livelihood as a broker or commission agent selling imitation jewellery. The Petitioner was earning a good deal more money than the Respondent and I think it more than probable that she was contributing a very much greater share to the family exchequer.

41.It may well be that the Respondent is a somewhat shiftless and indolent individual. I have already referred to his addition for mahjong. But I am very strongly of the view that the true reason underlying these proceedings is that the Petitioner was thoroughly dissatisfied with the conditions under which she was living with the Respondent and felt, with considerable truth and not unnatural irritation and annoyance, that she was contributing a very much larger share than her husband to the maintenance of the family household.

42.Mr. de Basto, for the Petitioner, both at the outset of the case and in his concluding address, drew attention to the Answer filed and complained that he had been taken by surprise in that he had had to meet allegations made by the Respondent which had not been pleaded. I have already commented upon the Answer filed on behalf of the Respondent. In the main the Answer consisted primarily of a bare denial of the allegations made. Whilst I have no doubt that the Respondent's Answer could have been very much more satisfactorily settled, I think it quite clear that the nature of the defence sought to be put forward was very clearly disclosed by the questions put to the Petitioner in cross-examination by Mr. Suffiad.

43.By reason of the interesting and informative judgment of the Full Court in the case of HUI Shiu Wing and CHEUNG Yuk Lin alias Loretta CHEUNG,⁽³⁾ I have found it necessary to deal in very much greater detail with each and every incident complained of by the Petitioner than I would otherwise have done. There are two tests of cruelty as I understand the law now to be. The first is this: Is the conduct complained of sufficiently grave and weighty to warrant the description of being cruel? The second test, equally important, is: Has the conduct complained of caused injury to health or reasonable apprehension of injury to health? In Rayden on Divorce, 10th Edition, at page 147, it is submitted that the proper approach is:

"Was the conduct of such a grave and weighty nature as to make cohabitation virtually impossible?"

And again:

"To obtain a divorce on the ground of cruelty it must be proved that one partner in the marriage, however mindless of the consequences, has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that that misconduct had caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in a case of cruelty: From the petitioner's side, ought this petitioner be called on to endure the conduct? From the respondent's side: was this conduct excusable? .... Assuming that injury or apprehended injury to health is found, the Court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view, after a consideration of any excuse which this respondent might have in the circumstances, the conduct is such that the petitioner ought not to be called upon to endure it."

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

This Petition must accordingly be dismissed.

Note:

As to the matter of costs: This is a case in which both sides have been legally aided. After having heard counsel on both sides I think the proper order for me to make is as follows:-

18th May, 1968.

Representation:

Basto (Tso & Co.) assigned for Petitioner.

Suffiad (Hastings & Co.) assigned for Respondent

(1) 1947 (1) A.E.R. p.32

(2) 1967 Probate p.298 at 300

(3) Civil Appeal 40 of 1967.