Chan Cheng Siu Kun v. Chan King Kan

HCMC000006/1979

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Coram: Mr. Commissioner de Basto, Q.C.

Date of Judgment: 7 December 1979

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JUDGMENT

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1. The wife petitioner in this suit seeks a decree of divorce on the ground that her marriage has broken down irretriviably. In support of that ground, she pleads that the husband has behaved in such a way that she cannot reasonably be expected to live with him.

2. The parties were married in 1957 and there are four children of the family ranging in age from 13 to 20 years'. From her evidence it would appear that the wife's main complaints are that during the last 20 odd years the husband frequently scolded and assaulted her, although her allegations on this aspect were somewhat generalized and vague. She said she has desired a divorce ever since her marriage.

3. In her petition, however, the wife only refers to two incidents in which she alleges she was assaulted. The first of these occurred in May 1978. She testified that the husband pushed her off the bed which they were then sharing. She said he then hit her on the chest and arms as a result of which she was treated at the United Christian Hospital. However, she conceded that the husband had also suffered minor injuries in that incident. It is not in dispute that he, too, was treated in the same hospital. At first the wife suggested the husband's injuries were self-inflicted but later conceded "it was possible" that they were accidentally caused when the husband grabbed hold of her. All I can say of this incident is that there was probably a fight or scuffle between the parties during which both of them received minor injuries.

4. The next specific incident of assault involves the wife's head being hit by a refrigerator door. She testified that the husband deliberately shut the door on her head although she was not sure how he did this. She said that as a result she felt "dizzy". I am inclined to think that, on balance, that incident was accidental.

5. The wife testified that the husband made inordinate sexual demands of her. I do not accept that the husband ever forced himself on her but I think he may well have, on occasions, been somewhat insistent in his requests for sexual intercourse when the wife alleged she was tired or unwell. She said they had sexual intercourse on average (before they stopped living as man and wife) about two or three times a week. The husband, on the other hand, puts it at about twice a month. I think the true figure probably lies somewhere between the two versions given by the parties. I cannot say I regard that as inordinate, especially as the wife is only forty.

6. The wife also alleged that the husband was mean in money matters. It is not in dispute that the husband gave the wife the whole of his salary each month and that he would then ask her, on a daily basis, for money to spend on himself. In his answer the husband pleaded that he was allowed about half of what he gave the wife but in evidence he gave figures which represented a smaller percentage. The wife also worked but the husband did not ask for, nor receive, any part of her earnings.

7. The wife is illiterate and allowance must be made for the fact that she gave her evidence in a somewhat desultory fashion.

8. There can be no doubt that the wife wishes to be red of the husband. However, as Sir George Baker P. said in Katz v. Katz⁽¹⁾:

"The court must consider the effect of the behaviour (of the respondent) on the particular petitioner and ask the question - is it established, not that she is tired of the respondent or, colloquially, fed up with him, but that she cannot reasonably be expected to live with him?"

9. I would have thought that if the wife had been scolded, abused, threatened and assaulted over a considerable period of time, it should not have proved difficult to adduce some corroborative evidence. The wife said her mother was over 60 and a cripple. Mr. Kwan, for the wife, in response to a query by the Court, said, in effect, that he did not think the children of the parties could be of much assistance to the Court. Corroboration is not required as a rule of law but it is desirable. To use Lord Denning's expression, "It is a proposition of good sense". Of course, a court is entitled in a proper case, where there is no doubt where the truth lies, to act on the uncorroborated testimony of a petitioner.

10. The husband testified, inter alia, that although by Chinese custom he was master of the house, the others (including the wife and their children) did not render him "much respect". He also said he did not have much "say" in the house. The house to which he refers is a small stone hut in which some fourteen people live. The wife denied this congestion caused friction among the fourteen people living there, including herself and the husband. I doubt that.

11. The husband said his wife's allegations of assault were a fabrication on her part. He said that for the last five or six years he spent most of his time (when not working) staying with a friend - he said he did this because his friend's premises were more spacious than his own - he said there was no other reason. I do not believe him.

12. I do not think that either party was telling the Court the whole truth. I formed the very distinct impression that the parties were ill-matched and that this situation has probably existed since the marriage.

13. I find it helpful to remind myself of an observation by Omrod J. in Pheasant v. Pheasant⁽²⁾:

"In matrimonial cases there are two subjects to be considered, and, moreover, two subjects whose personalities are constantly interacting with one another through this relationship".

14. I am required to make a value judgment about the behaviour of the husband and its effect on the wife. I have examined the whole of the evidence adduced before me and I have considered the personalities of the parties as displayed in the witness box. Performing the best survey I can I have concluded that I am not satisfied, on the preponderance of probabilities, that the husband has behaved in such a way that the wife cannot reasonably be expected to live with him.

15. The petition is dismissed with costs to the respondent to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. Thomas Kwan, instructed by Vincent Lo & Co. for the Petitioner.

Mr. Adrian Huggins (assigned by D.L.A.), instructed by Poon & Sum for the Respondent

High Court Divorce Jurisdiction Suit No. 6 of 1979

Date of Trial: 3rd & 4th December, 1979.

Date when Judgment was delivered: 7th December, 1979.

ORDER: Petition dismissed with Costs to the Respondent.

Cases cited in Judgment

(1) Katz v. Katz [1972] 1 W.L.R. 960

(2) Pheasant v. Pheasant [1972] 1 All. E.R. 590

Authority cited by Court but not mentioned in the Judgment

(1) Sec. 15 (A) 4 of Cap. 179

Representation:

Mr. Thomas Kwan, instructed by Vincent Lo & Co. for the Petitioner.

Mr. Adrian Huggins (assigned by D.L.A.), instructed by Poon & Sum for the Respondent

(1) [1972] 1 W.L.R. 960

(2) [1972] 1 All E.R. 590