Fong Lo Lai Ying v. Fong Fu Sing

HCMC000057/1978

Coram: Zimmern, J.

Date of Judgment: 9 November 1979

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JUDGMENT

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1. This is a wife's petition for divorce. The sole ground for divorce is that the marriage has irretrievably broken down and she alleges that it has so broken down by reason of the behaviour of the respondent husband in which she as the wife could not be expected to live with him any more.

2. Before I come to the particulars, let me mention that the parties were married in China in the province of Kwangtung in 1961 and a year later they came to live in Hong Kong and have been here ever since. The husband was by trade a mechanic and there can be no doubt that the husband and wife tried very hard to make a living in Hong Kong. There is also no doubt that they are good, hardworking people, law-abiding, and after so many years of marriage there has not been a complaint by one against the other of any vice, gambling, drinking, womanising, anything of the nature at all.

3. Given this very brief history, let me now come to the pleadings. Paragraph 10 is a general allegation that the husband respondent is a person of hot temper and

"He unreasonably assaulted the petitioner on numerous occasions and caused physical injuries to the petitioner but the date and frequency of such assault the petitioner cannot recall."

The respondent, in giving evidence, admitted that he is a person of some temper, which breaks out now and again and when it does, he is capable of sweeping things off the table. From the evidence, I assume that it is not something which has developed in the course of the marriage but it is part and parcel of his make-up and has been there perhaps since a very young age. Anyway there is no evidence or allegation that this hot temper developed at any particular time.

4. Then paragraph 11,

"The respondent's unreasonable behaviour began in 1975, and due to the enormous strain the petitioner had undergone, the petitioner had to stay with relatives for sometime in order to prevent such assault by the respondent."

This, to me, is just a bit of generalisation.

5. Then we come to three incidents. Paragraph 12,

"On 13th day of August 1976, the respondent over trivial matter, bitterly beat up the petitioner, as a result the petitioner's breast and back were swollen and bruised. The petitioner had to attend medical treatment for a considerably long period."

6. Paragraph 13,

"On or about July 1977, with no possibly foreseeable reason, the respondent started a quarrel with the petitioner, in front of the children of the family, and tore off the petitioner's clothes before he assaulted the petitioner. Consequently physical injuries and embarrassment caused to the petitioner."

7. Paragraph 14,

"On 11th October 1977, over the carelessness of the petitioner to store water during the water rationing, the respondent caused physical injuries to the petitioner by throwing a children bicycle at the petitioner. The petitioner treated the matter seriously and reported to the police station. Since this incident, the petitioner has lived apart from the respondent in order to avoid any assault by the respondent."

8. Let me now go back to the history of the family again. When they came to Hong Kong they lived in the Hunghom district and they moved from one place to another. I have no doubt in my mind that life was very hard for them but they have five children and, as I have said, they are good working people and the petitioner makes no allegations of the conduct of the respondent during this time save that the respondent's unreasonable behaviour began in 1975 and it wasn't till 1976 that they moved out to Shatin to live, and the three particular incidents alleged were all in respect of matters after they moved out to Shatin.

9. Before dealing with these incidents, having very carefully watched the petitioner and the respondent giving their evidence in the box, I have no doubt in my mind that the petitioner has developed almost a pathological hatred and a repulsion for her husband. As far as she is concerned, certainly at present, she thinks or she says or she alleges that the marriage has irretrievably broken down, but I am not, on the evidence before me, having seen the two of them, prepared to accept that this hatred, that this repulsion for her husband was in any way by reason of the behaviour of the husband at all.

10. I come to these three incidents.

"On 13th day of August 1976, the respondent over trivial matter, bitterly beat up the petitioner, as a result the petitioner's breast and back were swollen and bruised."

This incident was due to door-slamming when she, the petitioner, had gone out for a morning cup of tea with a cousin and on returning home had wakened the husband as a result of which there was a quarrel between them. She alleges that the respondent beat her up to such an extent that her breasts and back were swollen and bruised, that she attended medical treatment for a considerably long period. There is no evidence whatsoever that the petitioner had to have medical treatment even for a moment, never mind for a considerably long time. On behalf of the petitioner the second son gave evidence and there is not the slightest evidence from him that his mother was ever so beaten up by his father. I prefer and accept the evidence of the respondent of this incident,

"Yes, there was a quarrel. She did wake me up. I never locked her in. I never prevented her from going to the police."

the petitioner's version being that after such a beating up she was locked up there for a day guarded by the respondent and couldn't report to the police. I do not see this in the character of the respondent at all. And let me say this, and this covers the other two incidents as well; this is not a case of a strong husband against a weak wife. I have no doubt in my mind that they, both of them, had minds of their own and they can stand up to one another with no trouble at all, and if I had to make a finding, who was possibly the stronger character, I would say it would be the petitioner.

11. I come to the next allegation. It is said that in July, with no possibly foreseeable reason, the respondent started to quarrel with the petitioner. Well, at the date of the petition there was apparently no possibly foreseeable reason. By the time the petitioner came into the witness-box, it was a case of refusal of intercourse. She refused the intercourse, therefore he got so angry, he tore her clothing off to the shame of the children. Consequently there were physical injuries and embarrassment caused to the petitioner. The respondent completely denies this and this denial is fortified by the evidence of the son who, despite one or two promptings about this particular incident, made no reference to it whatsoever. If such an incident had occurred, that boy, the son who loves his mother, no doubt would have honestly come out with it, but he did not.

12. Then we come to the incident alleged in paragraph 14, 11th October, 1977. Again it is an altercation or a quarrel over some trivial matter, the storage of water. The petitioner said she was caused physical injuries by the respondent throwing a children's bicycle at her. She, in the box, said her toes were injured. The respondent admitted he did push a bicycle, not at her it didn't hit her, as he, in a fit of temper, merely pushed it. The outcome of this matter was that the petitioner dialled 999 and told the police that she was being attached by a maniac. I think that shows her mentality. It shows her pathological dislike of her husband. A small incident like this she reports to the police, accusing her husband of being a maniac and trying to kill her. They went to the police station. What else - what can she say? There was not even a medical examination.

13. Then there was supposed to have been another incident, the tea-pot incident and the throwing of the fan. Again if it occurred at all, I accept the evidence of the respondent that it was really a typical quarrel between husband and wife, and I find that her version of it was completely exaggerated. But what rather surprises me is that the allegations in paragraph 14 close with this sentence,

"Since this incident, the petitioner has lived apart from the respondent in order to avoid any assault by the respondent."

She left home on that date and one assumes from the petition that that was the last time she went home, but according to the evidence, that was not so at all. It is common ground that on the eve of Chinese New Year in 1978 she went back home. The reasons for going home are in conflict. She said that the second daughter had had a severe beating by the respondent and she went to her in a sorrowful state, and to look after her and to cater for her. She took her home to settle her and the other children down, but according to the evidence, on her own admission, she stayed there until certainly early in April which belies really the reasons she gave for her return. The respondent's version was the children wanted her back and I think the elder daughter or the elder son who consulted the respondent's mother and the mother advised the children to go to the mother and try and persuade her to go home. That sounds to me the truth of the matter. It is Chinese New Year's eve, families do get together, and that was as good a time for a trial reconciliation as any and I think she went home that Chinese New Year's eve for that particular purpose. Her version that she had no intercourse, no speech other than quarrels with the respondent during that time just does not make sense to me. She is an independent woman in every sense of the word as shown by the way she can leave home. She has left home again to support herself. I accept the evidence of the respondent that during that time they lived as husband and wife. It might well be that the respondent did not know it was really a trial period in the mind of the petitioner but in any event it was not till April that the petitioner left.

14. This case has caused me great anxiety and I am particularly sorry that I have had to say certain things against the petitioner, but as I stated right from the very beginning, she has been a good mother, she has been a good wife, living under hard conditions I accept that she has developed this dislike for her husband and much as she may want a divorce now, the law does not allow me to grant it as I have already said, her repulsion cannot be attributed to the behaviour of the respondent, therefore the petition must be dismissed.

15. As far as the custody is concerned, I have no doubt in my mind that the five children ought not to be separated. I have heard both sides on the matter. They moved out in 1976 to an entirely different environment in Shatin, a good environment, and there is no attack on the morals of the father. He is a good father as she is a good mother and balancing the two together, the children should not be separated.

16. Petition is dismissed with costs to be taxed in accordance with Legal Aid regulations.

17. There will be an order for joint custody, care and control to the respondent so long as the petitioner and the respondent live apart, reasonable access to the petitoner. Certificate that the court is satisfied with the arrangements made for the children.

Representation:

Rose YEUNG (H.M. So & Co.) for petitioner.

J. LEONG (Kwong & Lam) for respondent.