Leung Sin Kim-wai v. Leung Che-yin

HCMC000103/1969

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

Action No. 103 of 1969

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Coram: Hon. Blair-Kerr, J.

Date of Judgment: 4 November 1970

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JUDGMENT

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1. In this case the wife is the petitioner. The parties were married on 29th July 1965. The petitioner was then 24 years of age and the respondent was 31. There was no evidence as to how long the parties had known each other before marriage; but it is common ground that there was pre-marital sexual intercourse between them. Indeed, I do not think that this marriage would ever have taken place but for the fact that the petitioner was pregnant as a result of such intercourse. The respondent had saved very little money and he was not able to pay for the expenses involved in a wedding. But the petitioner and her mother insisted on a wedding feast (which was paid for by the petitioner's mother - contrary to Chinese custom); and the respondent has not repaid her.

2. I do not think that the parties were ever really happy. According to the petitioner (whose evidence I accept) squabbling began about two weeks after their marriage; and arguments and bickering was almost a daily occurrance. Asked about the few incidents specifically referred to by her in her petition and whether there were any others, she told me that it was impossible for her to recall all the incidents that took place during their few years of marriage. This, of course, is frequently the position. A wife goes to a firm of solicitors saying that she wishes to be divorced on the ground of cruelty; she is asked to tell them in what way her husband was cruel; and, over a period of years, she tries to recall incidents which stand out for the purpose of her petition. Taken in isolation such incidents, sometimes, do not amount to very much. But to her, they may be no more than a sample of the sort of unhappiness which she has suffered; and courts sometimes do not give enough weight to a wife's general allegations in her petition.

3. The trouble is that these petitions coming before the courts are usually drafted by solicitors' clerks who trot out the stock phraseology - "a man of ungoverned temper", "habitually used obscene language", "excessive demands for sexual intercourse", "addicted to gambling" and so on; and although the petition is itself evidence in the proceedings, sometimes very little weight can be placed on it. It is by seeing and hearing the parties in the witness box that the court gets a real glimpse of their married life.

4. In this case, I accept the petitioner's evidence, and that of her mother, that the husband is bad tempered; and he has no scruples about striking a woman. The petitioner made no wild allegations about being struck with fists or any weapons at any time; but, unquestionably, on many occasions she was slapped, and slapped hard, across the face. The respondent is a well-built muscular individual. The petitioner and her mother are small women; and I do not accept his evidence that they ever attacked him physically. I do not think they would have dared.

5. What they did do, however, was to taunt him on a number of occasions about his failure to maintain the family properly. Not only has he not repaid the petitioner's mother the cost of the wedding feast, but he has never really maintained his wife and family properly. On 24th November, 1968 he suffered an industrial accident to his left hand. He was apparently injured by an electric saw. The medical report reads:-

6. He also went through some operation for hernia in July 1969.

7. He could not be expected to work during these two periods of sickness; but that is not the whole story. The petitioner's complaint is that he has never supported her properly. She said that her monthly expenses were in the region of $500; that sometimes the respondent gave her $300, sometimes $200, and sometimes as little as $70 per month. He appears to have moved from job to job working as a carpenter sometimes on large sea-going vessels and sometimes on yachts, but always paid on a daily basis. His earnings appear to have been in the region of $700 per month.

8. In her petition she alleges that the respondent is addicted to gambling. When pressed as to her sources of knowledge, it was obvious that she really had none; and then she allowed her imagination to run away with her a little in trying to answer counsel's questions by saying: "Well, if he doesn't gamble, he must drink, and if he doesn't drink, he must be associating with prostitutes!" But, all she was really trying to say was: "I and my children had to be maintained. He has never maintained me properly; what does he do with his money when he does do any work; he loafs at home and is quite prepared to live off me; and when I tax him with it, he uses violence to me."

9. I do not think that the respondent has any real love for his wife. But I accept her evidence that he is a highly-sexed individual. Two or three acts of intercourse per night was apparently quite usual for him; and he had no scruples about insisting on this even during his wife's periods of pregnancy. One of his complaints in court was that her mother slept in the same cubicle. It was clear to me, on the evidence, that his sexual demands were a burden to the petitioner; and that, during her pregnancies, she wanted her mother to sleep nearby as a kind of protection from his unreasonable demands.

10. The first incident mentioned by the petitioner specifically occurred 2 weeks after their marriage i.e. about the middle of August 1965. She was pregnant. (Indeed, as I have said, this was what forced the parties to get married; and the child did not reach maturity. She told me that she had a miscarriage some time afterwards. She did not elaborate on the cause of this.) He maintained in evidence that he was working till 8 p.m. and reached home at 9 p.m. She said the incident took place at 11.30 p.m. As between the parties, I much preferred the wife's evidence. She was clearly an honest witness. It was probably nearer 11.30 p.m. than 9 p.m. that this incident took place - a rather unusual time for a newly-wedded husband to return home. At any rate, she was in bed asleep. He came in and wakened her up and demanded to know why she had not stayed awake to prepare his meal and his bath. In fact her mother had done so. He had really no complaint at all so far as the meal and the bath was concerned; and his sheer inconsiderateness in waking her up was bad enough. This lead to words between them. He alleges that she attacked him with a pair of scissors and that he bit her hand in self-defence to make her let go the scissors and that in the struggle her hand must have been cut by the scissors. I questioned him closely about the scissors allegation; and in my view he was clearly lying.

11. She said that in addition to slapping her, he bit her hand had and that it was bleeding as a result; that she tried to telephone to the police and that he prevented her doing so; and I accepted her version.

12. The next incident mentioned by the petitioner occurred a week or two before the birth of her first child. This child (a female) was born on 23rd September, 1966. So the incident would have occurred about 14th September 1966. It was the respondent's birthday. He wanted to invite his brother and his wife to dinner. The petitioner objected on the ground that she was unable to cook and entertain guests owing to her condition. He insisted that she should telephone his brother and issue the invitation; but she refused; and he assaulted her - again I gathered it was a case of slapping her violently. Then he pressed her throat and put his hand over her mouth, pressing so hard that he cut her lip. She did not suggest anything sinister in the pressing of the throat (although it must have been a frightening experience - and she emphasised in court that she began to be really frightened of him). He said that his purpose in closing her mouth was that he could not stand to hear her accuse him of not maintaining the family properly etc. and wanted to shut her up. Whether that was his purpose or whether it was to stop the sound of her cries is doubtful. At any rate, the noise was heard by the principal tenant as the petitioner ran out into the corridor shouting 'save life'.

13. She called the principal tenant of the flat. This woman said the parties often quarrelled; but I do not think that she had any clear recollection of this particular incident, because she said that when the petitioner ran out to the corridor, she was carrying a small child. The petitioner had no children at this stage of their married life.

14. The next incident mentioned by the petitioner occurred in December 1967. By this date a second child had been born on 24th October 1967 - also a girl. They were all sitting at dinner one night. It was the petitioner's mother's birthday. The petitioner picked up some food with chopsticks and gave it to her mother. One of the two small children was crying. The petitioner did not go to attend to her. The husband took exception to this and started to quarrel with her. The petitioner admits that she taunted him saying: "You never had enough money to marry; we had to pay for the wedding feast" and so on.

15. According to the husband, he lifted the child in order to pacify her. He said that his wife then pointed her finger close to his face as she taunted him; that he "warded her off" and that she bumped against the wall, that he endeavoured to escape; that she came after him shouting 'save life' but nevertheless tried to kick him in his private parts; that he (still holding his daughter on his left arm) grabbed the petitioner's foot and "accidentally twisted it", pushed her away, and then left home, not returning that night.

16. It is common ground that the petitioner's knee joint was dislocated on this occasion. I do not accept the husband's version of how this happened. He did not have any child in his arm at the time, nor did the petitioner try to kick him in his private parts. He assaulted her for having taunted him; she tried to defend herself, but I am satisfied that her knee joint was not dislocated 'accidentally' by one push or twist by the respondent's one hand. He gave her leg a vicious twist probably as she raised it in self-defence. There is no doubt he was the aggressor.

17. The petitioner was forced to work from time to time in order to support herself and the children. The respondent himself made reference to her working for a period in Hung Hom police station (presumably as a domestic help in one of the quarters - there is no suggestion that she is qualified to work in any other capacity). At any rate, it reached the stage in June 1968 when she was forced to take permanent employment as a servant in a European household in Shouson Hill in order to support herself and her family. She is still employed there. Her salary was, until recently, $360; but it is now $400. She took her elder daughter to live with her in the servants quarters; and her mother (now 61 years of age) has been looking after the younger child. So, the two children have not seen much of one another since June 1968. The petitioner has one day off per week, usually on Sunday.

18. The 12th January 1969 was a Sunday and she appears to have spent the day with her family. That evening, she asked her husband to buy a plastic diaper for her younger daughter. He bought the wrong kind; and that was enough to start an argument between the parties. Feeling between them was still strained next morning. At this time the respondent's left thumb was still bandaged owing to the surgical operation carried out on 5th January 1969. He asked the petitioner to fold the quilt on the bed. She refused, and she taunted him with loafing about the house instead of working and earning money to support her and her children. He apparently lost his temper and again slapped her violently across the face. He then left the house and the parties have been separated since then i.e. for a period of 22 months.

19. He has not paid her a cent of maintenance since December 1968. I do not accept his evidence that during 1969 he made an offer of $200 on one occasion and $1,000 on another. I accept her evidence that he has not paid her anything at all; nor has he made any attempts at reconciliation. Not that I think there would have been any chance of a successful reconciliation. I tested the reaction of both parties to such a course during the proceedings. Although his attitude in defending this petition was that he wanted to "kiss and make up", when I put this to him fairly and squarely, it was clear to me that he had no genuine desire for reconciliation. He hedged and dodged answering and talked of only allowing her to come back "on conditions". According to him, it was all his wife's fault, and the break-up of the marriage was not caused in any way by him.

20. The petitioner would not hear of any suggestion that she return to the respondent. She is genuinely frightened of him; and her attitude is: "Why should I support him and live in fear of him."

21. I am in no doubt that this marriage has broken down irretrievably. But, of course, as the law stands, general breakdown is not a ground for dissolution. The issue before me is cruelty in the legal sense.

22. Having regard to the authorities, it is a border line case; but, having given the matter anxious consideration, I have come to the conclusion that it would be proper for me to dissolve the marriage on the ground of cruelty on the part of the respondent.

23. There will therefore be a decree nisi for the dissolution of the marriage to be made absolute 3 months from today.

24. The petitioner is asking for an order for custody of both children. She does not suggest that she is able to look after two children and do her job at the same time. But she suggests that the present state of affairs should continue, that is to say that her mother should continue to look after the younger child and that she should look after the elder. They are now 3 and 4 years old respectively.

25. The petitioner's mother looks old for 61; and the time must be fast approaching when this old lady is not going to be able to look after a child.

26. The respondent asks for custody of the children of the marriage. Indeed, as so frequently happens, the real issue in this case is as to the custody of the children. The respondent does not suggest that he is in a position to look after these two young girls. However he called his sister-in-law (his elder brother's wife) as a witness. She impressed me very much indeed. She seems to be a very capable and warm-hearted woman. She is 51 years; and her family of 4 children are now grown up. Three of them are working. She said she was quite prepared to look after the petitioner's two children.

27. I feel that I should have further advice before making any order in regard to the custody of these two little girls. Ordinarily, girls of this age should be with their mother. But the petitioner has been quite content to allow the two children to be virtually separated for 22 months and to allow her old mother to look after the youngest. If she has been unable to look after both her children during the last 22 months at her place of work, how is she going to do so now? If she could do so, it would obviously be in the children's best interests. But, I anticipate that she will always have to work to maintain herself and her children. I think that she will have great difficulty in getting any maintenance out of the respondent; and if it is not possible to have both her children beside her in her place of work, then some other solution will have to be found.

28. There is no question of this Court permitting the respondent to have actual physical custody of these young girls. On the other hand, it certainly appears that his sister-in-law would be a good foster-mother. Her husband is a foreman in the Public Works Department. She seems to have a happy home; and, as I have said, she seems to be a capable and warm-hearted mother. The only difficulty is that her present domestic accommodation is rather limited.

29. I will adjourn the question of custody to enable the Director of Social Welfare to make further investigations in order to assist me in deciding what is the best course to adopt in regard to the custody of these two young girls.

30. The question of maintenance can be gone into by the Registrar after the question of custody has been decided.

Representation:

Mr. H.C. Miu (Messrs. Shea & Co.) for Petitioner

Mr. M. Asome (Messrs. Lo & Lo & Co.) for Respondent.