Siu Chow-tong v. Cheng Shui-ying

HCMC000001/1977

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

DIVORCE JURISDICTION

SUIT NO. 1 OF 1977

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Coram: Mr. Commissioner Liu, Q.C. in Court

Date of Judgment: 21st November, 1977.

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JUDGMENT

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1. This is a petition for divorce on the basis of a five years' separation. In her answer, the wife respondent contended that by virtue of section 15B(1) of the Matrimonial Causes Ordinance she was entitled to oppose the grant of a decree on the grounds that the dissolution of the marriage will result in grave financial or other hardship to her and that it would in all the circumstances be wrong to dissolve the marriage.

2. The parties were married on the 23rd December 1947 in Chiu Chow. The petitioner has set foot in Hong Kong for quite a considerably long time. His claim of having been in Hong Kong for no less than 33 years seems, according to his evidence, to be a little optimistic. The respondent joined the petitioner some 2 years after his arrival. The parties worked and prospered. The respondent was a domestic servant until after the petitioner had set himself up in the cartage business with which the petitioner disclaimed any association except that he was a casual coolie. The petitioner conceded that for a period from 1965 to the end of 1971, through the introduction of the factory manager of Star Industrial Limited, he toiled for the proprietor of Kam Pik in sub-contracting. On the admission of the petitioner, in that period, as subcontractor he made a profit of $50,000 with which and a loan the flat in which the respondent and her son now reside was acquired for a sum of $30,000. The loan subsidizing the purchase was from the sister of the respondent, and it was repaid in 10 months. This flat is 500 to 600 square feet part of which has been let out providing the respondent with a monthly income from the sub-rental.

3. The assignment of this flat was taken in the name of the son with the respondent as trustee. In the petitioner's evidence, he told the Court that he gave instructions for his son to sign his name in the acquisition of these premises and that he purchased the flat in the name of his son with his wife as trustee. And at the conclusion of the proceedings, counsel disclosed that the petitioner is not making any claim to the beneficial interest of the flat now occupied by the respondent and his son. It was conceded that the same flat was purchased for the son as a beneficiary.

4. After years of marriage, the petitioner and the respondent fell apart, and by early 1971 the relationship was irreconcilable. They had earlier approached, on the recommendation of the police, the City District Office by whom they were in turn referred to the Kaifong Women Society. In the City District Office, the dispute led to the signing of a Separation Agreement by the petitioner himself and by the brother of the respondent. The respondent declined to append her signature on the same document. The reason for the absence of her signature thereon was a matter of disagreement, but it is common ground that her signature is nowhere upon it.

5. After the unpleasant incident which landed the parties in a police station, subsequently the City District Office and thereafter the Kaifong Women Society, on the 23rd January 1971 the petitioner abruptly departed from the matrimonial home. On the same day, the petitioner moved into his present premises which were bought for a sum of $64,000. It was revealed that the petitioner had planned to acquire these particular premises, but the evidence is vague as to whether or not they were acquired with an intention of his living apart from the respondent.

6. After the separation, the petitioner has been living at 203 Queen's Road West, 2nd floor and the respondent at 36 Man Ying Street 16th floor. The petitioner found himself the companionship of a woman from Thailand with whom he is and has throughout been cohabiting for a number of years. The petitioner explained that because of ill-health and old age, he was desirous of entering into matrimony with this woman; hence the presentation of this petition.

7. Against his denial of interest in a transportation company, the petitioner's visiting card (Exh. D1), on which the address and telephone number of his old flat as well as the name of a company bearing one of the Chinese characters in his name, was produced. The explanation offered by the petitioner for the information on this visiting card leaves much to be desired. At one stage of his evidence, the petitioner even mentioned "My own transportation company". The petitioner was previously the owner of a junk. According to the petitioner, business was not prosperous after the end of 1971 and he only carries on with his casual coolie trade today. The petitioner testified that since 1974 he has regularly visited Thailand annually for a period of about a week for pleasure and that he played mahjong almost nightly with and was regularly entertained by people in the Tak Hing Sheung, a wholesaler of poultry feeds at 141 Des Voeux Road West. The petitioner's way of life is certainly not consistent with that of a casual labourer. The petitioner seems to have grossly underestimated his means, given an unwarranted pessimistic assessment of his resources and deliberately downgraded his status. As the question of maintenance will have to be decided, I do not propose to make any more comments.

8. Having said what I have said, it is clear that the respondent is not facing any financial hardship let alone grave financial hardship; nor is she experiencing hardship of any kind. The respondent has the benefit of the sub-rental of a flat to which her son is beneficially entitled. She has a roof over head. Her son is gainfully employed. The parties have separated for five years, and the respondent is neither financially nor emotionally dependent. The circumstances would not enable me to say that it will be wrong to dissolve the marriage. In conclusion, the prayer in the petition for a decree nisi must be allowed.

9. There has not been any arrangement satisfactory or otherwise as regards the child of the family who is 17 almost 18, and there is no agreement for the wife's maintenance.

10. I turn to deal with the question of cost. It is obvious that the answer was filed with a view to airing the grievances of the respondent. This is not a Court of morals, and if only for want of wisdom in human relationship I wish to pass no judgment on the approach taken by the respondent. Suffice it to say that she has no business to be here in opposition to the petition. I must not overlook the concession of Mr. Lee who fairly invited the Court to make no order as to costs. Bearing that concession in mind, had this petition been prosecuted uncontested the respondent would have been entitled to appear legally represented with an eye on her future claim for maintenance and protection against unjustifiable accusations. Therefore, a fair order for costs would be: No order as to costs for the petitioner with costs for the respondent limited to the first half day of hearing and to be taxed as if the proceedings had been heard in open Court in District Court on the upper scale.

11. I was invited to deal with the question of maintenance. Mr. Lee, counsel for the petitioner, drew my attention to the affidavit of means filed by the petitioner on the 5th November 1977. Counsel complained that no affidavit of means had been filed by or on behalf of the respondent. Counsel's predicament and anxiety are not unreal. The whole proceedings were contested on section 15B(1) of the Matrimonial Clauses Ordinance. The question of maintenance was not directly in issue, and counsel for the petitioner stated the obvious that in a divorce petition the question of maintenance did not truly begin to become relevant until the granting of a decree nisi. In my view, it is at least desirable to have the question of maintenance pending suit and permanent maintenance adjourned to be dealt with by the Registrar. likewise, the question of maintenance for the child be adjourned also to be determined by the Registrar.

Representation:

Mr. K.S. Lee instructed by Messrs. Clayton Wong & Co. Petitioner.

Mr. Ming Huang instructed by Messrs. Hon & Co. for Respondent.