Tang (Tong) Yiu Shun Kai v. Tang (Tong) Yu Kwen and Another

HCMC000031/1981

IN THE HIGH COURT OF JUSTICE

DIVORCE JURISDICTION

BETWEEN

Coram: Hon. Power, J.

Date: 2nd December, 1983.

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JUDGMENT

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1. The petitioner alleges that she and the 1st Respondent were lawfully married in Beijing, China on the 18th July 1946. There is no issue made as to the commission of adultery of as to the irretrievable breakdown of the alleged marriage. The only issue before this Court was whether on the 18th July 1946, a lawful ceremony of marriage took place. The petitioner alleged that it did and gave detailed evidence as to what she said happened.

2. Mr. Henry Hu, who was called to give expert evidence, said that what she said had occurred would have constituted a lawful marriage according to the laws of China in 1946. The first respondent denied that any marriage ceremony took place. He said that all that had happened on the day in question was that there had been a luncheon party which was attended by some of his relatives and some of the petitioner’s relatives.

3. The evidence of the petitioner and the first respondent differed in a number of respects as regards the matters prior to and after the 18th July 1946. However, neither version contained anything that would establish conclusively either that there had or had not been a marriage on that date. The Court must, therefore, examine with particular care the evidence which came from the parties and from the witnesses as to the events of that date.

4. Before so doing, I will give a broad history of the relationship with the parties. The parties met in the summer of 1945 having been introduced by a Mr. Chan Yau who was a clansman of the petitioner's uncle. The petitioner says,that they became engaged at a formal engagement party in October of that year. This is denied by the first respondent. It appears that towards the end of the winter, in about February or March, 1946 the parties had a falling out. Each gives a different version as to what occasioned this falling out. However that may be, it appears that the petitioner attempted suicide and was taken to hospital in about February or March. After she left hospital she went to live at the home of the first respondent and after some time they started to live together.

5. The first respondent admits that he had had intercourse with the petitioner before her suicide attempt. Their first child Tong Hung, who was born on the 19th December 1946, must have been conceived shortly before or immediately after the suicide attempt. Certainly by the 18th July 1946 the Petitioner was pregnant with that child. The first respondent says that ''pressure was brought upon him to marry the petitioner by the petitioner's aunt and to some extent by his own mother, but that he resisted this pressure because he felt that the petitioner was concealing from him details of an affair which she had had with another man. Whatever may have occurred on the 18th July 1946, the first respondent and the petitioner thereafter lived as man and wife in the home of the petitioner's mother up until 1951 when the first respondent left Beijing to come to Hong Kong.

6. In the years between 1946 and 1951, two further children were born: Tong Chu, a female, on the 11th December 1947, and Tong Yan, a female, on the 20th July 1949.

7. From 1951 onward, the first respondent lived in Hong Kong. He says that he corresponded with the petitioner there-after except for a break which occurred because he felt that she had been responsible for his mother being dispossessed from her home in Beijing. However that may be, they certainly corresponded during the years following 1951 and he admits that, when he could afford it, he sent her money for the support of herself and the children. He does not deny that be may, in 1960, have sent her a letter describing her as his wife knowing that it was her intention to use it as part of her application to the Chinese authorities for permission to come to Hong Kong. Permission was not, however, given until 1978. He said that if he wrote such a letter it was because he was hoping that the children could be brought to Hong Kong.

8. When the petitioner arrived in Hong Kong in February 1979, she found that the first respondent had been married to the second respondent in 1974 and that they had had a child. The petitioner lived with the first and second respondents from February 1979 to June 1979 when, because of unhappy differences, she moved to other premises.

9. I now turn to the events of the 18th July 1946. The petitioner said that the ceremony of marriage took place on the 18th July 1976 in the International Hotel - this was also referred to as the International Social Club. She said the Mr. Chan, who had introduced them, presided over the ceremony on the side of the first respondent and that her aunt presided over the ceremony on her side. She said that her foster-sister, Madam Chau Chung, acted as her witness and that a nurse, who now resides in Hong Kong, but who is presently in Mainland Chin, was also a witness. She said that the ceremony was held at about noon and that on the first respondent's side, there was his uncle, and his cousin's sister and on her side, her three cousins and their husbands, her aunt and uncle and her witness. She said that there was a long table and that they sat facing each other with one party on each side. She said at the ceremony proper she and the first respondent were on one side of the table and the others were on the other side. She said there was a group of five in line, the middle one was the witness and on each side was the introducer and at the side of each introducer was an officiator. She said there was also a master of ceremony who did the announcing. She said the master of ceremony announced first that the witness would read the marriage document which he did naming the petitioner and the first respondent as the parties being married. She said that after this document was read she and the respondent were formally married and that the introducers, the officiators and the bride and bridegroom then sealed the document.

10. She said that after the ceremony, there was bowing and that all present then sat down and had lunch. The petitioner was in no way shaken in cross-examination as regards this evidence.

11. The first respondent's version was entirely different. He said that the luncheon party was simply a family gathering. He said that the aunt of the petitioner had wanted a proper wedding, but he refused to go through with the ceremony because he had no confidence in the petitioner. He said that he had made a counter-proposal saying that it would be agreeable "to have a social meeting to get to know her relatives but that would be all". He said that this meeting was arranged for the 9th July at the International Social Club. There does not seem to be any dispute that the International Hotel and the International Social Club are the same place. It is to be noted that this was not the date given by the petitioner. However the first respondent said that this was the only meeting at the International Social Club and it seems clear that they were both, when giving evidence, referring to the same meeting. He agreed with the Bench that the meeting was to let the families, and particularly the family of the petitioner, know that he and she were living together and to let him get to know her relatives. He said that it was so that, when the child was born, the relatives would know whose child it was and that it would make matters easier, in asocial sense, when he met the petitioner's relatives.

12. He said that, when he entered the part of the club Where the gathering took place, the tables were set out as they would be in a restaurant. He said that, "All of a sudden, the elder cousin asked the waiter to rearrange the tables so it looked like a ceremonial gathering, and so arranging the tables so it looked like the introducers etc. could all stand at one side of the table; and I saw two documents taken out by this cousin, and I saw there was something wrong - some difference from what I was expecting -so I left this Club altogether. I went up to the roof-top, then my younger cousin came up to fetch me back saying that they have cancelled that. I went back. All tables were back to original positions. So we just sat down to have the meal. The atmosphere was not happy. After the meal we went homes."

13. His evidence was that an attempt had been made to arrange an ad hoc wedding ceremony prior to the meal, that tables had been moved to positions appropriate for the ceremony, that he had then left and had only been prevailed upon to return when he had been told that the ceremony had been cancelled and that, upon his return, the luncheon had gone ahead in d stained atmosphere.

14. The petitioner called as her witness, a Madam Chou Chun, who said that she was the sworn sister of the petitioner. She paid that she remembered the gathering at the International Hotel in July of 1946 but she could not recall the exact date. She said that it began around noon or maybe a little earlier after 11. She went ahead to describe the wedding ceremony in much the same terms as it had been described by the petitioner. This witness was not shaken in cross-examination. She did say in her evidence that she had seen the petitioner a her aunt's residence in the weeks prior to the wedding. Both the petitioner and the first respondent were agreed that at that time she was living with the first respondent. That being so it was suggested that she was not being truthful in this regard and that all of her evidence should be regarded as suspect.

15. The witness called by the first respondent as to the happening in the International Social Club was Madam Lau Man Wah who is now aged 69. She said that she was the wife of the respondent's uncle and that in 1946 she attended a luncheon in the International Social Club. She said that she had arranged the booking as her father was a chef at that club. She said that the luncheon did not start until some time after 2 p. m. as the guests were slow in arriving. She said that it was just an ordinary luncheon meeting and that nothing particular occurred thereat. She described it as being "an extremely dull luncheon party". She said that no wedding ceremony took place and that there was no attempt by anyone to read any marriage document. She said that no-one made any attempt to introduce her to any of the people she did not know and that it did not look like a meeting where the petitioner and the first respondent were introducing themselves to the guests. She said that she heard no dispute or expression of unpleasantness. She said that although the first respondent might have gone out during the lunch, she did not notice it and that she did not notice that the atmosphere ever became strained. She said that the waiters did move some small tables at one time to make more room but there was never any change about of tables in order to make the room looked a ceremonial hall.

16. Her evidence was quite clear that it was an extremely dull and uneventful luncheon party. This evidence seemed to me to give no real support to either the version of the petitioner or that of the first respondent. As I have said the petitioner's witness was unshaken in cross-examination, her evidence gave strong support to the evidence of the petitioner. Having considered their evidence and indeed, the evidence of the surrounding circumstances, I accept that evidence and reject that of the first respondent. I find that a valid marriage ceremony did take place between the petitioner and the 1st respondent on the 18th July 1946.

17. I am satisfied that the first respondent has committed adultery and that the marriage has broken down irretrievably and I, therefore, grant a decree nisi of dissolution.

18. I order the first respondent to pay the petitioner's costs to be taxed.

Representation:

Mr. Walter Lau (instructed by W. K. Lore & Co.) for Petitioner.

Miss J. Leong (instructed by Lau & Co.) for Respondents