Kao Yeuhg Lun Yuk v. Kao Cho, David

HCMC000018/1974

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 18 OF 1974

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Coram: Trainor, J. ini Court.

Date of Judgment: 13th June, 1975.

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JUDGMFNT

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1. The petitioner seeks the dissolution of a marriage which, she alleges, she entered into with the respondent on the 21st September, 1966 on the ground that the marriage has irretrievably broken down and that as the result of the respondent's behaviour she cannot reasonably be expected to live with him.

2. By his Reply the respondent alleged that at the time of the alleged marriage the petitioner was still lawfully married to one, Chan Yiu Kwan, in China and the marriage purported to have taken place was invalid. He prayed that the petition be rejected and that the marriage celebrated between the petitioner and himself be declared null and void. The facts of the case are as follows.

3. The petitioner was born in Shanghai and her mother died when the petitioner was very young. Her father went to Hong Kong to live and she, the petitioner remained and lived with her grandfather. About 1956, when she was 17, her grandfather sent her to live with a family and there she commenced cohabiting with a son of the family. Of this cohabitation two children were born. According to the petitioner no ceremony of any sort was ever porformed nor were there any formalities.

4. In 1962 by reason of differences between herself and the mother of the man with whom she was cohabiting, the mother ordered the petitioner out of the house. She said she came to Hong Kong in 1962 and has lived here ever since.

5. The parties met about May, 1966.

6. Although the primary issue in this case was whether or not the marriage performed on the 21st September, 1966 in the Registrar's office in Hong Kong was a valid marriage Mrs. Chiu who appeared for the petitioner, in agreement with Miss Leung for the respondent, elected to proceed first. She called the petitioner who established the facts which I have already set out.

7. The respondent in his evidence produced a letter which he said, had come to his home addressed: "To my wife", and then followed the name of the petitioner. The letter was from Mr. Chan and addressing her as his wife he asked her to come back to Shanghai saying that he and the children missed her. He referred to the years that they had lived together, and it is quite clear from the tone of the letter he wished her to return. That this letter was from Mr. Chan, and that it referred to the time when the petitioner and he cohabited as a result of which the two children were born, was not disputed by the petitioner.

8. Miss Leung's contention that at the time the ceremony before the Registrar at Victoria took place there was a valid and subsisting marriage between the petitioner and Mr. Chan was, she said, supported by the petitioner who said that she considered she was married to him, and it was not until she received legal advice in Hong Kong that she thought otherwise. Miss Leung said that the relationship between the petitioner and Mr. Chan which was recognised by Mr. Chan's family and also by the petitioner's grandfather, and the fact that the association was not secret but open and known to the public led to the presumption, irrespective of the lack of ceremony, that there was a marriage. She cited Sir Barnes Peacock in Sastry Velaider Aronegary and His Wife v. Sembecutty Vaigalie and Others (1881) 6 Appeal Cases 364 where at p.372 he said:

"In the case of Piers v. Piers, 2 H.L.C. 331, it was laid down by the House of Lords that the presumption of marriage arising from cohabitation with habit and repute can only be rebutted by the clearest and most satisfactory evidence. The Lord Chancellor said: 'I have not found that the rule of law is anywhere laid down more to my satisfaction than it is by Lord Lyndhurst in the case of Morris v. Davies 2 C.L. & F. 163, as determined in this House. It is not precisely the same presumption as exists in the present case; but the principle is strictly applicable to the presumption which we are considering.' He says: "The presumption of law is not lightly to be repelled. It is not to be broken in upon or shaken by a mere balance of probability. The evidence for the purpose of repelling it must be strong, distinct, satisfactory, and conclusive'. No doubt every case must vary as to how far the evidence may be considered as satisfactory and conclusive; but he lays down this rule, that the presumption must prevail unless it is most satisfactorily repelled by the evidence in the cause appearing conclusive to those who have to decide upon that question."

9. That case, however, was one where there was evidence that a ceremony had taken place between the parties concerned followed by cohabitation and that the couple lived together and had entertained as husband and wife. It was alleged that the marriage was not valid because it was not registered. Another case cited by Miss Leung was re Shephard [1904] 1 Ch. D. 456. In that case an English woman travelled to France with the intention of getting married and there purported to go through a form of marriage. The couple thereafter lived together in England as man and wife for 30 years and had several children. It was assumed by the Court that a marriage such as was alleged was impossible according to French law but it was held that that fact was not sufficient to rebut the presumption in favour of a marriage arising from the long continued cohabitation of the parties as man and wife. Another case cited by Miss Leung was Re Taplin [1937] 3 All E.R.105 where at p.108 Simonds, J., said :

"They (that is the couple concerned) were there received into society, which was not a society of loose and uncertain morals, but with proper views as to marital relations, and were at all times regarded as man and wife. This being so, the presumption of our law is that they were man and wife. This presumption is not to be disturbed except by evidence of the most cogent kind."

10. Another case cited by Miss Leung was Taylor v. Taylor [1961] 1 W. L. R. 9. There it is held that where a man and woman were proved to have lived together as man and wife, the law presumed, unless the contrary was clearly proved, that they were validly married.

11. In that case there was no evidence whatever of there having in fact been any kind of marriage ceremony.

12. In support of her contention that on the 21st September, 1966 a valid marriage subsisted between the petitioner and Mr. Chan, Miss Leung called the well known authority on Chinese matrimonial law, Mr. Dicks. Mr. Dicks aid has been invoked on many occasions in these courts in similar cases. He said that since 1950 the law in the Peoples Republic of China is that a couple who wish to marry must first register with the Peoples Government of the district or township in which they reside. If the proposed marriage is found to be in conformity with the provisions of the law a marriage certificate is issued. In support of what he said he produced the Marriage Law of the Peoples Republic of China adopted by the Central Peoples Government Council on the 13th April, 1950 and promulgated on 1st May, 1950 by order of the Chairman of Central Peoples Government on the 30th April, 1950. What he produced emanated from the Foreign Languages Press, Peking, 1973. Article 6 reads :

13. He also referred to Article 4 which reads:

".A marriage can be contracted only after the man has reached 20 years of age and the woman 18 years of age."

14. I hope I summarise the evidence of Mr. Dicks correctly when I say that he said that prior to 1950 ceremonies were always an essential part of a marriage but that there was no registration. Since 1950 registration is considered the essential of marriage. He said, however, that since 1950 the courts of China had two kinds of cases to consider: (a) unions that existed before 1949 where there was no registration. He said that the courts, not surprisingly, have held that where such unions were not bigamous, juvenile or otherwise offensive they were recognised; and (b) putative marriages, being what certain writers call "marriages in fact", which came into existence after 1950. He said there were a number of decisions to the effect that such marriages may be recognised. He said that the Supreme Court in 1951 delivered a judgment on a reference from the Superior Peoples court of Southern Anvey, upholding the decision of the lower court, that in the case of a common law marriage it was necessary for the parties to divorce, according to the provisions for the divorce in the marriage law, before remarriage. In other words a de facto marriage required divorce.

15. He also said there were a number of semi-authoritative writings to the same effect. In 1953 the Legal Commission of Government Administrative Council published a catechism about the effect of the marriage laws. To a question as to the validity of unregistered associations, it answered that such must be recognised. He qualified this, however, by saying that he thought that since then a few of the official publications have been intentionally evasive on the question. He said the strongest statement against such validity was in a publication in 1964, issued with government authority, in which it was said that such marriages do not have the protection of law.

16. Mr. Dicks went on to say that in his opinion courts in any given case would be greatly influenced by the factual situation. He said he based this on a hypothetical case he posed to a Judge in China. He asked the Judge if a court in China were confronted with a putative marriage of which there were children, such as in the case before me, and it transpired that one of the parties was a party to a prior registered marriage which was childless what would the situation be. He was told that in the circumstances the court would feel obliged to dissolve the first childless marriage and recognise the second. He was also told that if a subsequent registered marriage proved childless the courts would recognise a former putative marriage of which there were children in the interests of the state and of the children.

17. It was Mr. Dicks' opinion that where there was cohabitation as a result of which there were children and one of the parties wished to register a marriage with a third party that there would first have to be some form of dissolution. However, he said this was not conclusive, as if the marriage were registered before the dissolution the court might recognise the registered marriage. He was asked what was the position, as in this case, where a female had commenced cohabiting before the age of 18; could the cohabitation be registered after the female had attained that age. He said it could be so registered but without retrospective effect. He said, however, that there might well be criminal proceedings and no registration in the case of child marriage. But he said where the parties had consented freely he felt it could be registered as a marriage after the permitted age was reached.

18. Mrs. Chiu asked Mr. Dicks if a man and woman were to cohabit and have children irrespective of the number of years they lived together, is there any rule of law that they are necessarily husband and wife. To this, he said it was difficult to say for the reasons that he had given. He said there would be "a matrimonial relationship" between them and it was extremely likely that the court would hold there was a marriage. To me, he said that having lived together for some years after marriageable age he thought that it would be necessary for the parties to go through some form of divorce.

19. If the only question for me to answer in this case was the marital status of the petitioner at the time she arrived in Hong Kong and in 1966. There is no doubt that the presumption of a marriage between herself and Mr. Chan would indeed be very strong despite Article 6 of the Matrimonial Laws of the Peoples Republic of China. The cases cited by Miss Leung are clearly in support of that view. But there is another presumption that has to be taken into consideration and that is the validity of a marriage evidenced by all the formalities prescribed by law. Here we have a case where the petitioner and the respondent went through a ceremony of a marriage before a registrar in Hong Kong which complied with all the requirements of the Laws of Hong Kong. Mrs. Chiu would argue that where such is the position the presumption in favour of the validity of that marriage far outweighs and negatives any other presumptions that may exist. She argued that where there is a doubt as to the existence of a prior marriage but clear evidence of a subsequent marriage complying with all the requirements of law then the court should uphold the validity of the subsequent marriage to the exclusion of the former doubtful marriage. It was Mrs. Chie's contention that any presumption in favour of the association between the petitioner and Mr. Chan in Shanghai being considered a marriage was dissipated by the evidence of the petitioner. However, she would maintain that even if the presumption had not been so dissipated nevertheless there was a doubt as to its existence and, she said, the law tends towards the preservation of existing unions. If such is the position, and she maintained it is, then the courts would only hold against the validity of the subsequent marriage if the first marriage contended for was proved to the satisfaction of the court. No such proof she said was forthcoming here.

20. I was referred to the case of Chung Kai Fun v. Lau Wai King [1966] H.K.L.R. 881 in which Briggs, J., as he then was, said at p.883:

"In order to prove a marriage in a foreign country it is necessary to prove (1) of what the ceremony consisted and (2) that that ceremony was a valid marriage according to the place where it was celebrated."

21. In the instant case, she said, the evidence was that no ceremony was ever held, that the laws of China required the registration of a marriage which had not been done, therefore there was no marriage. However, taking the evidence of Mr. Dicks at its strongest it only showed the possibility of a marriage and she would rely on the case of Ives v. Ives [1967] H.K.L.R. 423 - a decision of Full Court - where according to the headnote it was held, inter alia, that :

"Where there is evidence of a marriage ceremony followed by cohabitation, a presumption of the validity of the marriage arises ' in the absence of decisive evidence to the contrary'. There was authority for saying that the existence of an earlier marriage of doubtful validity was not sufficient to displace this presumption."

That, she would maintain is the position here. She cited from the judgment of Hongan, C.J., at p. 427 where he said :

"I think these circumstances do emerge with sufficient clarity from the evidence and proceedings in the court below to set up the presumption mentioned by Cairns, J. in Tavlor v. Taylor (1967) P. 25 at 37, when he quoted the principle enunciated by Barnard, J. in Russel v. Attorney General (1949) P. 391 at General 394 and founded on many earlier decisions, that,

"Where there is evidence of a ceremony of marriage having been performed, followed by cohabitation of the parties, the validity of the marriage will be presumed, in the absence of decisive evidence to the contrary.'"

22. In a later part of the judgment of the learned Chief Justice again repeats that last sentence just quoted and continues:

"That reasoning must be applied to the facts of the present case."

That was at p.449. Again, in that page he says:

23. In the present case I have before me evidence in the form of the marriage certificate issued by the registrar in Victoria of a valid marriage and I am constrained to accept it as a valid marriage until there is decisive evidence to the contrary. The question is: is there such decisive evidence to the contrary? Clearly the answer is no; what has been presented to the contrary was far short of being decisive. It has been alleged that there exists a marriage according to law of the Peoples Ropublic of China but the very first requirement of Chinese law is missing. That is, that both the man and the woman should register in person with the Peoples Government of the district or township in which they reside, and subsequently, obtain a certificate of marriage.

24. The only evidence as to what took place in China was that of the petitioner and that was that she lived with Mr. Chan for some years commencing before she was eighteen, and had two children. She has said that no ceremony ever took place.

25. The matter might well end there were it not for the fact that r. Dicks gave evidence in which he said that there could have existed a relationship between the parties that would have to be dissolved before either party could register a further marriage. That association might well constitute an impediment to a subsequent marriage, but does it necessarily constitute a marriage. Even Mr. Dicks was uncertain on this point. On the one hand he has told me that "marriages in fact" or "putative marriages" "can" be recognised, and on the other there is to be found in a book published with Government authority a statement that such marriages do not have the protection of the law.

26. The situation with which I am faced, therefore is the marriage of September, 1966, perfectly valid on the face of it, followed by cohabitation for 7 years from which a child was born, sought to be nullified by reason of what is, at the best, an extremely doubtful former marriage.

27. It is my opinion that there never was a former marriage. But even taken the position at the most favourable to the respondent it was at the best a doubtful marriage and its existence as such does not displace the presumption of the validity of the marriage of 20th September, 1966. I hold that that was and is a valid marriage.

28. The basis of this petition is that the respondent has behaved in such a manner as to make it impossible for the petitioner to continue to live with him. In her petition she says that he neglected to pay sufficient maintenance for herself and the child of the marriage since 1969; that during 1968/69 he frequently hit her without reason after drinking wine and used insulting language to her in their home at 22, Kwan Mun Hau Village, Tsuen Wan; that he behaved similarly in 1970 at Flat A, 4th floor, Sun Sing House, Wan Hong Street, Kwun Tong; that he behaved similarly during the years 1971/73 at 335 Ngau Tok Road, Kwun Tong In particular she complains of an assault at a congee shop in Fu Yan Street, Kwun Tong as a result of which the respondent was charged with assaulting the petitioner. He pleaded guilty and was discharged conditionally on entering into a bond of $500 to be of good behaviour for 18 months.

29. It appears from the evidence of the petitioner that relations between herself and the respondent were quite good for the first year of their marriage during most of which, however, he was at sea. While at sea she received $1, 200 a month from his employers out of which she met certain commitments of the respondent and kept $500 to maintain herself and, later, her new born baby.

30. After a year at sea the respondent was unemployed for some time. During his unemployment the petitioner said they lived on what she had saved. She said he became bad tempered, especially when he drank wine, after which he became violent, hit her and threatened to kill her. She referred to an incident in September or October 1968 when, having been to a neighbour's home with her baby to see television, she returned at about 10 p.m. and the respondent beat her with a leather belt. She said she reported this matter to the police.

31. Miss Leung objected to this evidence on the ground that it was evidence of a particular incident which had not been pleaded. She argued that as only general circumstances had been pleaded and as no application to amend the petition had been made evidence of a particular incident was inadmissible. She referred then and in her closing address, to 11th Edition Rayden on Divorce P212 para.37 and P3045 No. 14 and cited Dewell v. Jewell [1862] Sw. & Tr. 573 Brook v. Brook [1887] 12 P. 19; Walker v. Walker[1912] 107 L. T. R. 655.

32. The headnote to the Jewell case reads:

"Evidence to prove a species of cruelty not pleaded in the petition is not admissible; though evidence of violent demeanour and language not pleaded, but leading up to and making probable acts of violence pleaded, may be admissible."

33. In that case counsel for the petitioner sought to elicit from her brother evidence as to a mark of a bite on the petitioner's hand. This was objected to on the ground that no charge of violence "answering to that description" was laid in the petition.

34. In his judgment the Judge Ordinary said:

"Evidence of violent demeanour and language leading up to and making probable acts of violence charged may be admissible, though not specifically pleaded;"

and then went on to add:

"but, as to actual cruelty, it is on the aggregate secundum allegata et probata that a petitioner is entitled to the relief prayed; ....."

35. Brook v. Brook was a petition for the dissolution of the marriage on the grounds of adultery coupled with cruelty and desertion. The paragraphs in the petition relating to cruelty, summarised were:

36. Counsel for the petitioner asked her if her husband had struck her on the face on a certain occasion, and counsel for the respondent objected on the ground that there was no such charge in the petition; only a general charge of cruelty. In his judgment Butt J. said :

"... There is nothing about a blow in the petition, and as it stands I shall not allow the evidence to be given.

He allowed the petition to be amended.

37. In Walker's case the undefended petition for dissolution was grounded on: adultery; frequent cruelty; and a particular, specified assault. A short time before the date fixed for hearing the respondent was served with a notice to the effect that at the hearing the petitioner would seek to prove that the respondent had acquired venereal disease and communicated it to her.

38. At the hearing Bargrave Deane, J. enquired:

"Why is this charge not pleaded? The Court will have no record of it. It is a charge which carries both cruelty and adultery, and should not be sprung on the defendant at a late stage."

He went on to say:

"I am of opinion that a charge of this character should be specifically pleaded."

The petition was amended and the case proceeded.

39. There is another case referred to in Rayden which Miss Leung did not cite but which I think is apt: Squires v. Squires [1864] 3 Sw. & Tr. 541. In that case the charge of cruelty in the petition was:

"That on divers occasions, during the said seven weeks of their cohabitation, the said Charles Squires by neglecting her, by violently pushing her, by striking her with his fist by depriving her of food and otherwise, treated your petitioner with great cruelty."

40. When counsel sought to evidence that the respondent had infected the petitioner with venereal disease the Judge Ordinary pointed out that there was no charge of cruelty "of that nature'' in the petition. Counsel sought to argue that it was admissible under the general charge :"and otherwise treated your petitioner with great cruelty". In his judgment the Judge Ordinary said:

"I quite agree that words such as those are inserted in petitions for the purpose of allowing a certain flexibility in the admission of evidence as to small details which cannot be expected to be found in the petition and cannot reasonably be supposed to have been present to the mind of the person who drew the petition at the time when it was prepared. But this is a plain and distinct act of cruelty, which must have been known to the petitioner when the petition was drawn. If this was admissible, any evidence would be admissible under the general charge."

41. In the cases to which I was referred there is a theme common to them all. It is stated in the headnote to Jewel v. Jewell thus :

"Evidence to prove a species of cruelty not pleaded in the petition is not admissible".

But as the Judge Ordinary said in that case

"Evidence of violent demeanour and language leading up to and making probable acts of violence charged may be admissible, though not specifically pleaded."

In that case cruelty in the form of biting was not alleged. In Squires v. Squires there was no species of cruelty alleged to which the communication of venereal disease was in any way related. In Brook v. Brook there was no plea that the respondent had ever used violence. In Walker v. Walker although adultery and cruelty were pleaded there was nothing in the cruelty alleged of the nature of communicating a venereal disease.

42. At the time when those cases were decided cruelty was a ground for divorce; and "cruelty" in the context of what were called "matrimonial disputes" had a very different meaning to what it has today. Prior to the Divorce Reform Act, 1969 the conception of cruelty as a ground for divorce was something of such a nature as to have caused danger to life limb or health, physical or mental, or which would give rise to a reasonable apprehension of such a danger. Therefore, the issue in those cases cited was whether an act or acts had caused such danger to life, limb or health or would give rise to a reasonable apprehension of such danger and therefore a ground for divorce. The act of cruelty was the issue and as such the respondent was entitled to know it precisely.

43. Today, since the 1969 Act in England and the similar legislation in Hong Kong, the Matrimonial Causes Ordinance, Cap. 179, the position with regard to divorce is very different. Prior to that legislation cruelty was a ground for divorce and therefore where pleaded was the issue. Today it is no longer so. The only ground for divorce now is that the marriage has irretrievably broken down. Today the issue is whether the marriage has irretrievably broken down because the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. In my opinion where today, a dissolution is sought and violence is alleged to be one of the reasons of the break down and is pleaded as in this case:"In 1968-69 the Respondent frequently hit the Petitioner....." and similarly for 1970 and again for 1971 to 1973, it is not essential to plead each separate occasion on which the respondent hit the petitioner. It might well be highly desirable specifically to refer to an example high lighted by unusual circumstances but the failure to give details of an incident not so high lighted does not in my view preclude the petitioner from giving evidence of it. Once the "species" is pleaded, evidence of particular incidents to establish it may be given.

44. Miss Leung cited the case of Gunner v. Gunner[1954] 1 All E. R. 695 but I can find no assistance in that meagre report.

45. To revert to the evidence of the petitioner. She said that that incident in 1968 was not unique: such assaults were frequent. She told of being beaten up in 1969. She told of his excessive drinking; how he scolded her and hit her in front of others; that his scolding of her was so loud that their landlord, or principal tenant as she called him, compelled them to leave. The petitioner told of the difficulty she had in obtaining money from the respondent. She said she had to go to him for practically every dollar as he would only give her small spasmodic sums. This gave rise to scenes and he behaved, she said, "as if I had asked for his life".

46. The petitioner said she left the respondent in October, 1973 because she thought "life would be a bit more tolerable" if she did. She said she had previously threatened to do so.

47. The petitioner said she threatened to leave the respondent in 1972 and the respondent asked a friend to intervene to dissuade her from leaving. She said this resulted in the assault specifically pleaded in the petition.

48. The facts of that incident as told by the petitioner, and as supported by the record of proceedings in the Magistrate's Court are as follows: On 31st October, 1972 the petitioner was in a store playing mahjong; the respondent was also there drinking beer. A Mr. Tong, a friend since 1967, came in and the respondent told him that the petitioner wished to leave him and asked Mr. Tong to try effect a reconciliation. She said she did not wish to discuss the matter in the presence of the respondent and she left with Mr. Tong and her daughter and went to a congee shop. She said about an hour and a half later her husband came and said he had reported her absence to the police. She said she told the respondent he knew where she was and why roport to the police but he beat her up. She said she decided to go to the police but the respondent tried to pull her back. She succeeded in going to the police and there made a report. She was sent to hospital for examination. She took out a summons for assault against her husband who pleaded guilty. Among the documents annexed to the record of the proceedings in the Magistrate's Court was a police report which stated that the medical report from the hospital was to the effect that the petitioner suffered "contusion of the face".

49. The Court record shows that in pleading guilty the respondent said "I did not hit her. I only dragged her home."

50. There is the note of the learned Magistrate:

"Complainant : he hit me, he is always hitting me. (She certainly looks as though she is ill trsated.) Court: You appear an arrogant and violent man. R.I.C. (which I understand to mean remanded in custody) to 8-11-73 for Probation Report. In custody for fear of wife's safety."

51. On the 8th November he was bound over.

52. It might be of note that Mrs. Tong, who came on the scene at the congee shop and Mr. Tong were subpoenaed on behalf of the petitioner to give evidence but did not appear.

53. Miss Leung suggested in cross-examination that the petitioner's evidence as to assaults were figments of her imagination and that at the congee shop the respondent objected to her being with a man and in a struggle trying to get her to go home she was not beaten up but only got a scratch. The petitioner, however, firmly maintained her original story.

54. The respondent in his evidence denied he ever assaulted or scolded the petitioner. As to the incident at the congee shop he gave an entirely different version. He said he saw his wife go out of the store, where she had been playing mahjong, with a man at about 11.40 p.m. and they went to have tea. He said he was not allowed to go with them. He said the man was Mr. Tong but he had never told them to have a discussion about the marital situation. He said later he looked all over Kwun Tong for them and finally, at 1.45 p.m. he found them in the congee shop. He said he asked the petitioner why she stayed out so long and she told him she wanted freedom and that a husband had no right to interfere with a wife's freedom. He said he told her she had better come home whereupon she went berserk and he did not know what happened. He said he did not strike her nor have a struggle; he merely put his hand on her back and said "Let's go home". He knew of no reason why she went to the police station.

55. In her evidence the petitioner had said she had ceased to go to see the child of the marriage, who was living with the respondent because she was afraid he would drag her in and beat her or take out a knife and threaten to kill her as he had done before. The respondent said this was untrue that indeed the petitioner had come to see the child as late as August, 1973. He also denied the petitioner's allegation that on the last time she called he told her she would not be allowed to see the child again. All told, the respondent suggested an attitude of sweet reasonableness.

56. The petitioner had put in a certified copy of a "First Infirmation " of an alleged assault in 1970 from the records of Tsuen Wan police station. The informant was the petitioner. The document stated enquiries revealed a fight between the petitioner and the respondent over gambling. When Miss Leung asked the respondent about this incident he said, and, I think, greatly to his counsel's surprise, that the incident arose out of his wife having an affair with a man. He said the man's wife bitterly accused the petitioner of seducing her husband. Respondent said he was very ashamed and he just coaxed his wife to come home; there was no struggle. He said he did not know if his wife reported an assault to the police but there was no such assault.

57. When the respondent was cross - examined about this incident he said he was angry with the petitioner but he did not beat her. He merely explained to her she should not have done what she did as such behaviour embarrassed him socially. He said in fact he had been very kind to her at the time because he knew her behaviour was psychological and she had gone through the turmoil of being beaten by this other woman and had gone to the police. When he was asked if he was suggesting his wife went to the police to complain that the respondent beat her up whereas in fact it was another woman had done so. He replied that according to what the petitioner had said she went to the police because he had refused to help her when she was attacked; something, he said, he could not do, because of her shameful conduct. In further cross-examination he said the police asked him if his wife was sane and he told them she was not and that explained her bad behaviour.

58. I do not propose to dwell on the further cross-examination of the respondent. I considered he was a liar and was prepared to change his stance on any point as soon as anything in cross-examination tended to show up a weakness in it. His allegation of adultery by his wife - something never suggested to his wife in cross-examination -was just mud-slinging and I am completely satisfied, unjustified. It was something which only occurred to him in the course of his direct examination. I considered him arrogant, vindictive and untruthful and a person whose only redeeming feature was a genuine love of and anxiety for the welfare of his child.

59. On the other hand I was very impressed with the evidence given by the petitioner. She made no effort to affect the facts in any way by denial of what might be adverse or by embellishment. An example of this was when she admitted that until she was professionally advised she thought she was married to Mr. Chan. I believe she told the respondent of the position between herself and Mr. Chan in China before the ceremony in Hong Kong and that the respondent appreciated the position fully.

60. I formed the opinion that the petitioner had tried to preserve the marriage and to that end had a discussion with Mr. Tong at the congee shop.

61. I formed the opinion from the petitioner in the box and observing her in Court that she had been reduced to an abject, dispirited and despondent woman prepared to accept almost anything to be relieved of the yoke of this intolerable marriage. Where her evidence differed from that of the respondent's I accepted hers without hesitation. Even if I had held the evidence objected to by Miss Leung my conclusions would have been the same.

62. I hold that the marriage celebrated between the petitioner and the respondent on the 21st September, 1966 has broken down irretrievably because the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him. Decree nisi to be entered with maintenance fixed by agreement at $1 per month.

63. I award the costs of the proceedings to the petitioner and direct that they and the costs of the respondent be taxed according to the provisions of the Legal Aid Ordinance.

64. I have heard counsel for the parties in Chambers as to the custody of the child of the marriage. I have also read a report of a Social Welfare Officer.

65. There is very little to choose between the claims of the respective parents so far as they depend on the financial and other benefits they have to offer the child, but the matter does not rest there My concern is what is best for the child. There was the obvious advantage to the little girl of living with her mother but I could not exclude from my mind the attitude of the mother to her two children in China; it did seem to be, perhaps, somewhat cold.

66. What did most to help me make up my mind was the interview I had with the child. She is in my opinion a child with an intelligence well beyond what one would expect from a child of 8 ½ years. She seemed fully to appreciate the position and while her wish was to have her father and mother with her she was unwilling to leave her father and the family with whom she spends most of the day. Her father leaves her each morning with a lady whom she calls "aunty" where, when not at school, she plays with her "brother" and "sisters", and collects her at night. I was left in not the least doubt about her affection for her father. The little girl told me she likes the school she attends and would not like to leave it. That she is doing well there is established by the fact that although she is one of the youngest in the class she is in 4th place.

67. I award custody to the father with access to the mother on alternate Sundays starting from the 13th July, 1975. Should the child be taken out for the day by the petitioner she shall return her to the respondent not later than 6 p.m. The petitioner to have the child for three weeks during the school summer holidays and for the Christmas holidays. In addition the petitioner to have the child for the 2nd day of the Chinese New Year.

68. Costs of this application to the respondent taxed so far as both parties are concerned according to the Legal Aid Ordinance with certificates for counsel.

Representation:

Mrs. Chiu (W.K. Poon & Co.) for Petitioner.

Miss J. Leong (Helen A. Lo & Co.) for Respondent.