Wondy Brigitte Loh v. Kenneth Yin Yiu Hui

HCMC000059/1971

IN THE SUPREME COURT OF HONG KONG

(DIVORCE JURISDICTION)

ACTION NO. 59 OF 1971

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Coram: Huggins, J.

Date of Judgment: 22nd November, 1971.

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JUDGMENT

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1. This is a wife's petition for divorce on the ground of adultery. It is common ground that there are three issues which arise or may arise in the case: the first is whether or not the adultery alleged was committed by the Respondent; the second is whether the Petitioner herself has been guilty of desertion and the third, assuming adultery and desertion, whether I ought to exercise my discretion in favour of the Petitioner. The adultery alleged was a single, isolated act of adultery alleged to have been committed on the night of the 30th/31st July, 1970 with a woman named KONG Ying at the Marco Polo Boarding House, No. 5 Tak Hing Street, first floor, Kowloon. I emphasise that only one act of adultery is alleged, because there is a letter which was written by the Respondent and which was relied upon as indicating that there was other adultery and counsel has argued that that evidence is admissible under s.380 of the Evidence Ordinance. In my view that section has no bearing on the present issue and evidence of other acts of adultery not alleged in the Petition is not admissible. Therefore I hold that this letter, and particularly the passage which I shall read later, is not relevant to the first issue although it may be very relevant to the second.

2. The evidence of adultery does not in any way depend upon the evidence of the Petitioner: this is not a case where I have to weigh the evidence of the Petitioner against that of the Respondent. If it were I would have no difficulty at all in this case because I can say at once that, subject to one very minor matter, I accept without hesitation the evidence of the Petitioner. The evidence of adultery depends upon the two witnesses, HA and HUEN, who are both employees of a firm engaged in security work and private investigation. I have had cited to me a case, a very old case, where the dangers of acting upon the evidence of such investigators are emphasised. Mr. Zimmern has suggested that the days when the courts regard their evidence with such doubts have gone. I think counsel on both sides are right here. I think that possibly one does not regard them with the suspicion with which they were regarded in the nineteenth century, but nevertheless clearly where a witness depends for his livelihood upon the success of the investigations that he carries out his evidence must be closely scrutinized. Mr. HA was a man who had only just joined this security service when the company was asked to carry out an investigation on behalf of the Petitioner. There has been some discussion as to the precise nature of his appointment. Mr. HA Chi-ying was a man who apparently started life as a sailor and who was a certificated officer on board a ship. He did various jobs and then came to this firm. I find that what was arranged was that if he tried this job and found it to his liking, and he was found to be to the liking of his employers, he would be appointed the chief investigator. And I think the position was this that they had a number of investigators but, as Mr. HUEN said, there was nobody qualified to take charge of the division. Here was a gentleman with no experience in this kind of work but a man of some education and standing who, if he was able to do the work at all, would be able to take charge, and I think that was the arrangement that was made. It is true that to some extent his promotion, and indeed his permanent appointment, no doubt depended on what was described as "good results". I do not necessarily take that to mean that every case which he had to take had to be disposed of to the satisfaction of the client in the sense that the client got what he or she wanted.

3. As I say, this was the first case which Mr. HA Chi-ying had been given to do. He was handed a piece of paper bearing two addresses, the name of a person, who obviously was the Respondent, a photograph and the number of a motor car, and his job was to follow the Respondent and to see whether his conduct was such as to give the Petitioner ground for suing for divorce. On the following day he started his investigations. Because he was new and because he could not drive he was accompanied by two other men: he was accompanied by Mr. HUEN, who was the driver of a motor cycle, and by Mr. Ismail DIN, who apparently had some experience in this kind of work. Mr. HUEN I have seen but Mr. Ismail DIN I have not. These three men went to one of the addresses given, the business address of the Respondent, and Mr. HA says that they found his car and that they waited in the vicinity until the Respondent came down. They had their photograph and they were able to identify the Respondent from the photograph.

4. We are concerned, however, with the events that took place three days later. On the evening of the 30th .... or the afternoon of the 30th they again went to the business address which is in To Kwa Wan in Chekiang Street. They waited until the Respondent came down. He got into the motor car of which they had the number and drove to Sai Yee Street, which was the home address that they had been given. There the Respondent went into his home and these men waited outside. There was apparently some kind of a public garden downstairs: I am not very clear in my own mind just what form it took but there was this public place where it was possible for somebody to remain without being unduly conspicuous, and they took it in turns to watch the premises. Of course they had no idea how long they would have to wait and it seems not unreasonable to me that they should have taken it in turns to remain on watch. Mr. HA says that the Respondent reappeared at 9.20, that he went to his car and drove it to a place near a filling station at the junction of Lai Chi Kok Road and Nathan Road. He went on the pillion of the motor cycle driven by Mr. HUEN, and the other man (Ismail DIN) went by taxi. Having parked his car the Respondent walked across the road and went into the premises in which the Wong Tao Ballroom is situated. Mr. HA followed him up and saw him go into the Ballroom. He then went downstairs and the watchers remained on watch downstairs. At 1.30 in the morning they saw the Respondent come downstairs with a girl. Now, although a woman has been called on behalf of the Respondent to say that she is KONG Ying (the name of the woman given in the Petition) this witness was never produced to the witnesses for the Petitioner for identification: Mr. HA apparently later obtained the name KONG Ying as being the name of the girl but he was never given the opportunity to say "This was (or was not) the woman I saw." He says that the Respondent and this woman got into the car and they drove to the junction of Argyle Street and Tung Choi Street. There they parked and went into the Golden Horse Restaurant together. They remained there for some fifteen minutes, reentered their car and drove to Tak Hing Street. Mr. HA and Mr. HUEN followed on the motor cycle. In Tak Hing Street the Respondent and the girl went to No. 5 Tak Hing Street. According to Mr. HA

"They went up to the first floor. It was the Marco Polo Boarding House. They were inside for about ten minutes. I went inside with a view to finding which room they occupied and whether it was registered. I asked whether the two people who came in just now had registered. I did not see any register book."

In cross-examination he said that during the ten minutes that he waited before going up he was standing at the corner of the staircase where he could keep the entrance of the boarding house in sight. In answer to some questions which I put to him it appears that the first floor is only about five steps above ground level. The impression he gave is that there really are no ground floor premises here: you go into a passage, there is then a staircase consisting of five stairs and then there are the boarding house premises that he calls the "first floor". He told me that he was about fifteen feet from the couple when they went into the boarding house. After making his enquiries at the premises he went downstairs.

5. Now perhaps this is a convenient moment to refer to an affidavit which was sworn by this witness at an earlier stage in the proceedings, when it was sought to get leave not to serve the woman named as the Co-respondent. As I have indicated, all the evidence of this witness reveals is that he saw the couple go into the boarding house. In his affidavit he said that they booked a room and they entered the room. With some justification counsel for the Respondent has made considerable play of the discrepancy between the evidence given in Court and the affidavit. Obviously there is a discrepancy and proper weight must be given to it. However, the position is, I think, not unlike that where there is a discrepancy between evidence given in a criminal trial which is different from that which was given in committal proceedings: if there is a really substantial difference which cannot be explained, then obviously great weight will be attached to this discrepancy; but if the evidence is substantially the same and any discrepancy can be reasonably explained, then little weight will be attached to it. This was an affidavit upon which there could be no cross-examination and in my view the discrepancy is not such that I should attach any great weight to it. Had the evidence in this Court gone further than the evidence in the affidavit I might perhaps have been inclined to attach rather more weight, but the position here is that the witness has not gone so far in his evidence before the Court. If he were being dishonest one might have expected him to go further.

6. The evidence then is that the watchers remained downstairs in the vicinity watching to see whether the Respondent and the girl came out. They remained together in "the near vicinity" - those were the words used by Mr. HA - and they did not, as they had done earlier in the evening, take it in turns to watch. They waited until about ten past six and then left. During the whole of this time the car was still parked in Tak Hing Street and was not moved. The next day Mr. HA went back to the Wong Tao Ballroom and ascertained the name of the girl, whom he saw in the Ballroom.

7. The witness kept some notes of his investigation. He subsequently made a report and he says that his notes and his original manuscript report have been destroyed. He said he destroyed his notes because he did not know that this matter would go any further. Apparently the original report that he made was typed. The typed copy is presumably still available. Provided he himself saw that typed copy and it was a correct copy, that of course was a document from which he could properly refresh his memory.

8. One rather strange part of Mr. HA's evidence related to the service of the Petition. He said he was never given any instructions by his employer to serve a divorce petition. In his affidavit he said that he was instructed to serve the Petition on KONG Ying, that he went to do so but that, being unable to find KONG Ying and having made diligent enquiries, he was unable to serve it. Now, when cross-examined on this part of his affidavit he gave the rather extraordinary answer that he was given a document in an envelope but he did not know what it was. That part of his evidence I find it difficult to believe.

9. The evidence of Mr. HUEN Ho substantially corroborates the evidence of Mr. HA. The only possible discrepancy between the two witnesses is as to what happened in Tak Hing Street. Mr. HUEN said that the Respondent and the girl went inside No. 5. HA got off the motor cycle and followed them, but he did not follow them immediately: it was after several minutes. What exactly he meant by "several minutes" is not clear. He said he waited with his motor cycle and about ten minutes later HA came out. As I say, it is not very clear to me whether or not there really is a discrepancy between the two witnesses. Mr. HUEN made no notes. He never read the notes or the report prepared by Mr. HA. In cross-examination he was forced to admit that he did discuss the case with Mr. HA after he knew that he would have to give evidence. That in itself is not in my view a suspicious circumstance and I would not have thought it necessary to mention the matter if he had not been reluctant to admit such discussion. In these courts it is all too common that witnesses deny for some reason a perfectly innocent discussion. It is difficult to believe that two such men knowing that they both had to give evidence would not discuss the matter. The question is whether or not Mr. HUEN has told me what he himself remembered or whether he has sought to amplify his evidence as a result of the discussion.

10. That is the evidence of adultery called on behalf of the Petitioner. In my view, that evidence did not begin to prove adultery. We have the position that witnesses saw the Respondent go into a boarding house, if their evidence is true. Whether the two went into the same room we have no knowledge at all, and in my view merely to see them go into the same boarding house, the same hotel, the same dwelling, is totally insufficient. Had the case rested there, in my view, the case would be open and shut. However, it does not rest there because the Respondent has not only denied that he committed adultery: he has denied that he ever went to this boarding house at all; and if he has been fit to deny that it seems to me that it can only be as a result of a guilty mind if he did go there. His case is, as I say, that he never went to the boarding house and he never committed adultery. He admits that he did know the woman KONG Ying who has been called as a witness. In the nature of things his own evidence can consist of little more than a flat denial on this particular issue. He is unable in the circumstances to set up an alibi. All he can say is "I knew this girl and I did not commit adultery with her. I did not even go to the boarding house with her." He has called this woman KONG Ying. As I say, whether or not this is the woman whom the two investigators saw is not entirely certain. They were not given the opportunity to say but she tells me that she did meet the Respondent, although on the occasions when he came to the ballroom he was with other friends and he only stayed there for a matter of some few minutes. She saw him there apparently on three occasions. The Respondent admits having gone there on some number of occasions - up to perhaps ten. KONG Ying's story is that on one occasion she was introduced to the Respondent by another dance hostess who was too busy to attend to the Respondent and so she attended to him on her behalf and that may account for the difference between the evidence of the Respondent and KONG Ying as to the number of times that the Respondent was there. She, of course, denies that she went to the boarding house and she denies the adultery alleged to have been committed there.

11. That is really the only evidence on the adultery issue. There is the evidence of the amah employed in the house where the Respondent lives, who said that she always locks the house at night and that he was never out all night. There was the evidence of the brother, Mr. Henry HUI, but that is concerned only with the finding of this woman KONG Ying. I was not greatly impressed with his evidence. He was an extremely aggressive witness and it is to be noted that the meeting at which this KONG Ying was interviewed with a view to her giving evidence took place after the date originally fixed for the trial of this suit.

12. The question I have to ask myself is this: am I satisfied that the evidence of the two investigators is true? If I am left in doubt as to what they saw on the night of the 30th/31st July, 1970, the suit must fail. I have weighed their evidence with the greatest care and I have come to the conclusion that that evidence is not a complete concoction but is substantially true. I find that the Respondent did go with a girl, whether or not it was the girl who was called as a witness, to the boarding house on that night; that they remained there having gone in at about 1.30 in the morning (a very late hour); and that they went there and remained there at least until ten minutes past six. The denial of the Respondent leaves me with no doubt that the inference must be drawn that he was there in pursuance of an adulterous association with this girl. I say adulterous "association" and I do not thereby necessarily mean that it continued on any other date: it is sufficient that there was adultery on one occasion and that is the only one that is alleged. It was argued before me that there was no indication that the Respondent was wanting to break up the marriage bond and that there was no evidence that he had an attachment to this girl. That, in my view, is not necessary to be proved.

13. I should perhaps have mentioned the letter of the 29th March, which was emphasised in the course of the argument. That was the letter written a few days after service of the Petition upon the Respondent, in which he most vehemently denied ever having committed the act alleged. For my part I do not read the letter in quite the same way as counsel for the Petitioner reads it. I do not place much weight on the fact that the Respondent refers to "a real affair" and take it as suggesting that he did have an affair of some kind. I read this letter as indicating that he did admit having known this girl but denied that there was any adultery. Nevertheless, despite this vehement protestation of innocence I am afraid I do not think it was genuine.

14. That brings me then to the second issue and this I have found difficult. As I say, I entirely accept the evidence of the Petitioner except for the "one minor matter" which I mentioned and it is a matter I think of no great significance. Referring to her letter of the 24th March (a typed letter which was sent unsigned) I find it a little difficult to accept her explanation that she just happened to be typing on that day and that that was why this letter was typed. What the real reason is, if it is not that, I do not know. It may be that she merely wanted to keep a copy of it but I find it a little difficult that this is the one letter in the whole of this very extensive correspondence which was typed. The fact that it was unsigned I find of no significance: I think that was an accident. The question is whether in writing to the Respondent and saying in effect that she had had all she could take and that she did not want to live with him any more she was justified. This Petitioner, in my view, has had a very great deal to put up with an a great deal more than she ought to have had to put up. The Respondent's attitude towards her and towards her family has been disgraceful. He has never really made any attempt to provide for the wife or his children. He allowed the wife to believe that he was going with her to Australia and then, maybe simply because he got cold feet, he did not go. But ever since he has in truth been living on the wife's parents to this extent that the wife has had to rely entirely on her parents for maintenance of herself and the children. The total sum that she has received from the Respondent has been - I think I am right - HK$7,000 or thereabouts. He seems to have had some idea that it was necessary to be a millionaire to be a successful husband and the whole of his time since his marriage seems to have been directed towards making a fortune. I entirely accept the evidence of the wife that all she wanted was a husband who would provide her with a home, however humble, and a husband to whom she could look up as a provider for the family. She married a school teacher and she was content to have a school teacher as a husband. It may be that the husband was to some extent dazzled by the success of his father-in-law and thought that he could emulate him, but whatever the reason he obviously did not make proper provision for his wife. The question is whether or not his conduct was up till the time of the adultery such as to justify the Petitioner in saying that she would not live with him any more. I find this, as I say, an extremely difficult question and I am content to say that I have doubts whether, even having regard to the husband's conduct, she was entitled to do what she did, but it makes no difference because, assuming that I am right and not wrong on that issue, I have not the least doubt that in the circumstances I ought to exercise my discretion in her favour - and if I am wrong in the view that I take as to desertion then she does not require my discretion.

15. I am quite satisfied that this marriage has broken down beyond all hope of redemption and that there ought to be a decree nisi with costs.

22nd November, 1971.

Representation:

A. Zimmern (Lo & Lo) for Petitioner.

H. Litton & D. Chang (Yung Yu Yuen & Co.) for Respondent.