Maurice Andre Gensburger v. Evelyn Apryl Gensburger and Others

HCMC000113/1967

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 113 OF 1967

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Coram: Briggs, J.

Date of Judgment: 22 March 1968

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JUDGMENT

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1. This is a husband's petition for divorce on the ground of the adultery of his wife with two co-respondents. The respondent filed an answer and cross petitioned for divorce on the ground of the petitioner's cruelty. The first co-respondent entered an appearance but filed no answer. The second co-respondent filed an answer. The petitioner filed a reply to the answer of the respondent and with the leave of the Court filed a supplementary petition for divorce on the ground of the adultery of his wife with the second co-respondent since the date of the filing of his original petition.

2. The petitioner also prays for the custody of the children of the marriage, and that the co-respondents be condemned in damages. There is also an application before the Court to vary a settlement made by the petitioner.

3. The case came on for trial before me on March 19th. All the parties were represented by counsel except for the first co-respondent but I was told that there was a solicitor present in Court on his behalf.

4. Counsel informed the Court that the respondent did not intend to proceed with her cross petition nor did she wish to be heard as to her answer so far as the decree of divorce was concerned. Counsel for the second co-respondent also intimated that he did not intend to proceed with his answer so far as a decree of divorce was concerned. As I have said the first co-respondent has not filed an answer.

5. Both counsel for the respondent and the second co-respondent made it clear that they intended to defend so far as the other relief prayed for by the petitioner is concerned. And the application for a variation of the settlement is the subject matter of a separate summons.

6. In these circumstances, I dismissed the cross petition of the respondent and struck out the answer of the respondent and second co-respondent so far as they relate to matters relevant to the decree of divorce. The matters really in issue between the parties were adjourned into chambers at 10 a.m. March 20th 1968. And I proceeded to hear the husband's petition as an undefended petition.

7. The petitioner was born in France but is domiciled in Hong Kong as of choice. He has been living in Hong Kong for some twenty years and is the managing director and majority shareholder in a well known firm of jewellers in Hong Kong. He has purchased a flat in Hong Kong. He speaks English fluently. He is a man of education and I am quite certain that he understands what the phrase 'domicil of choice' means. And I accept his evidence that he considers Hong Kong to be his permanent home and that he is domiciled in Hong Kong. The petitioner married the respondent in Hong Kong on March 7th 1956 and cohabited with his wife in a flat in Macdonnell Road, Hong Kong. After a short time they moved into a different address in the same road where they are still living together in the same flat, which was the flat purchased by the petitioner.

8. Two children were born of the marriage, a boy in 1959 and a girl in 1962. The two children are also at present living with their parents in the Macdonnell Road flat.

9. The petitioner said that early in the morning of July 26th 1967 he was awakened by his wife's sobs. She then confessed to him that she had had an affair with the second co-respondent for some months.

10. The petitioner said that he had until that time no idea whatever that his wife had been unfaithful to him though for about one year he thought her attitude towards him had cooled rather.

11. When she made her confession to him he asked her whether she had committed adultery with any other man, to which she said NO.

12. At her suggestion the petitioner made an appointment with the second co-respondent in the evening of the same day. At that appointment the second co-respondent admitted that he and the respondent had committed adultery frequently together during a period of several months.

13. At some time later the petitioner through the respondent came to know that she had also committed adultery with the first co-respondent. At the time that he was informed of this the first co-respondent had moved to New Zealand where he still lives. The adulterous association between the respondent and the first co-respondent lasted from the autumn of 1964 until the end of 1966 and preceded that with the second co-respondent. Upon hearing of the first co-respondent the petitioner wrote to him and received a reply. The petitioner said that since his wife confessed to him on 26th July 1967 he had abstained completely from any sexual relationship with his wife. They continued to live in the same flat because of the convenience so far as the children were concerned but they occupied separate rooms and went their individual ways. The petitioner said he has never condoned or forgiven the conduct of his wife.

14. Sometime in August the petitioner took steps to find out more about his wife's relationship with the second co-respondent. To that end he purchased a tape recorder of a type which is noise activated. He concealed this but connected it to the telephone in his flat. He switched it on each morning and it remained switched on all day. He switched it off each evening. When it was switched on it would start recording automatically when a noise was made. In particular if any person used the telephone, their conversation and that of the caller or person called would be recorded.

15. The petitioner said that sometimes he would speak the date into the telephone so that it would be recorded on the tape. He changed the tape when necessary.

16. In answer to his counsel the petitioner said that he had not interfered with the tape in any way. He had not cut any portion; nor had he erased any portion. He had kept the tapes in a safe in his solicitor's office and he himself kept the key of the safe.

17. He said he had a tape recorder in Court and he asked that he might play the tapes which he had thus made. There were a great number of reels of tape but he wished only to play short passages therefrom. He said the conversation recorded was in the English language.

18. At the same time he produced a typescript of what was said on the tapes. He said that this had been made by himself with the assistance of a professional stenographer and that it was accurate except for some few places where there was interference or some interruption by an extraneous noise.

19. As this was in effect an undefended petition there was no objection to the admission of this evidence. I have been unable to find a case in Hong Kong where such evidence has been admitted before but of course, as is well known, such evidence has been accepted in England for a considerable period of time. I did not consider it necessary to hear argument on this and I readily admitted the evidence. It seems to me that provided it is proved that there has been no tampering with the tape and provided that the voices are identified there can be no objection to admitting such evidence. Certain parts of one reel were played in Court. And they were repeated. The Court on the second occasion was given a copy of the transcripts. After the first hearing the petitioner said that the conversation to which we had listened was a telephone conversation between the second co-respondent and his wife. He identified their voices.

20. I found that after an initial but short difficulty in adjustment that it was very easy to hear what was said. It was especially useful to have a transcript but only as a check. It reminded me of listening to a piece of music with a score: the score clarified the hearing of the music but does not take its place.

21. The portion of the conversation between the respondent and co-respondent which was played as evidence concerned the first co-respondent. It contained unequivocal admissions by the respondent that she had committed adultery with the first co-respondent.

22. The petitioner also produced three voluntary confessional statements - One was made by the respondent confessing that she had committed adultery with the second co-respondent. The respondent did not refer to the first co-respondent in this statement. The second was made by the second co-respondent confessing that he had committed adultery with the respondent. The importance of the tape recording is that it was by that means that the petitioner was able to prove that the respondent admitted, albeit to a third person, the second co-respondent that she had committed adultery with the first co-respondent.

23. There was evidence that all these three confessional statements were made voluntarily and that the persons responsible for making them realised that the petitioner might rely upon them in his petition.

24. As to the supplementary petition there is this to say.

25. That portion of the tape recording which was given in evidence was recorded on December 21st 1967. This was after the date of the petition which was filed on September 13th 1967. At that time only the second co-respondent was cited as a co-respondent. An amended petition was filed on November 4th 1967 which added the first co-respondent. It is clear from the portion of the tape recording to which I listened that the adulterous association of the second co-respondent and the respondent was continuing at that time, i.e. in late December 1967.

26. In these circumstances, I found that the respondent had committed adultery with the first and second co-respondents and that she had also committed adultery with the second co-respondent since the filing of the original petition.

27. I therefore pronounced a decree nisi on the ground of adultery against the respondent as prayed by the amended petition and the supplementary petition. The petitioner is entitled to his costs against both co-respondents.

22 MAR 1968.

Representation:

O.V. Cheung Q.C. & de Basto (Peter Mo & Co.) for Petitioner.

A. Zimmern (Deacons) for Respondent.

Thornhill of Johnson, Stokes & Master for 1st Co-Respondent.

Donnelly (Stewart & Co.) for 2nd Co-Respondent.