Wong Ng Suk-yung v. Wong Yick-shu
Read the full judgment text of HCA 47/1979 on BabelCite. This High Court CFI judgment.
1. The wife petitioner in this cause seeks a decree of divorce, custody of the child of the marriage and an order for periodical payments of maintenance for the child.
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HCA000047/1979 IN THE SUPREME COURT OF HONG KONG HIGH COURT ACTION NO. 47 of 1979 -----------------
----------------- Coram: Mr Commissioner Barnes in Court. Date of Judgment: 21st January 1980 ----------------- JUDGMENT ----------------- 1. The wife petitioner in this cause seeks a decree of divorce, custody of the child of the marriage and an order for periodical payments of maintenance for the child. 2. The parties were married on 22nd February 1975 and the one child of the marriage, a son, was born on 17th January 1976. Each has said at one time or another that the marriage has broken down irretrievably. The petitioner said in evidence that there is no hope of reconciliation, that she will never again cohabit with the respondent. The respondent, in a letter dated 22nd February 1979 addressed to the petitioner, said:
He did, however, adopt a somewhat different stance in the witness box. There he expressed the hope that there would be a reconciliation if her prayer for a decree is rejected. I think it is a forlorn hope because one thing I did find credible in the petitioner's evidence was her statement that she intends never to return to cohabit with the respondent. 3. Thus, if it were not for the statutory commandment in Section 11A(1) of the Matrimonial Causes Ordinance ("the Ordinance"), I could readily held that the marriage has broken down irretrievably. That provision, insofar as this cause is concerned, commands that no matter how fragmented the marriage union may have become in fact it must nevertheless be held to subsist in law unless the petitioner satisfies the Court that the respondent has behaved in such a way that she cannot reasonably be expected to live with him. 4. It is therefore the respondent's behaviour during the marriage which comes under scrutiny in this case. The petitioner alleges that he was an inveterate gambler who spent most of his mights and most of his (and her) money at the mahjong table and frittered away the rest of the family funds by wagering on tardy greyhounds and racehorses; that she had to employ a baby sitter so she could go to work to supplement the family fund but even with her contribution his gambling losses could not be met without his pawning household articles and even on one occasion his own lounge suit and a jacket from her wardrobe; that she had to change baby sitters because the first refused to continue minding the baby after being pestered by the respondent for loans of money; that the rent of premises in which they resided was often in arrears and that on one occasion she had to sell the household furniture in order to obtain funds to meet the arrears of rent; that he harassed and embarrassed her at her place of work by calling there, haranguing her and prostrating himself at the entrance to the premises; and that on the eve of the drawing up of her petition he accosted her in the street and assaulted her as she was attempting to board a public light bus. 5. On a petition for divorce it is the duty of the Court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent (Section 15 of the Ordinance). "Facts" in this context means "the factual situations" listed in paragraphs (a) (b) (c) (d) and (e) of Section 11A of the Ordinance (Cleary v. Cleary, [1974] 1 All E.R. 498, 503). The petitioner alleges the factual situation mentioned in paragraph (b), namely, "that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent". The respondent's answer does not plead any of those factual situations. The duty imposed on the Court in this case is therefore one "of satisfying itself on a balance of probabilities that the petitioner is in fact telling the truth" (Cleary v. Cleary, supra, per Searman L.J., at p.503(c)). If she is, then she has established the factual situation of "unreasonable behaviour" which enables the Court to hold, in law, that the marriage has broken down irretrievably. 6. Both the petitioner and the respondent gave evidence. Theirs was the only oral evidence. The documentary evidence consisted of a "separation agreement" drawn up by the respondent and signed by both parties on 22nd January, 1978; a letter dated 22nd February 1979 written by the respondent to the petitioner; documents put in by agreement as evidence of acts done and words said by the parties in the presence of police officers and a receipt dated 1st September 1978 issued to the respondent in the sum of $450 on "return of one set of furniture (5 pieces)" bearing the letterhead of a furniture company. 7. The contents of some of the documents are of assistance in assessing the credibility of the parties. Both parties agree that the petitioner left the matrimonial home on two occasions, one occasion being when the "separation agreement" was signed on 22nd January 1978. The petitioner says that that was the second occasion and there is a plausible argument put forward by Miss Leong that the terms of the document itself seem to support her. The respondent says that it was the first occasion, that the petitioner subsequently returned in about June 1978 and left again in August 1978. Both parties agree that the petitioner sold the furniture from the matrimonial home in August 1978. The petitioner says that although she was not living in the matrimonial home in August 1978 she returned to arrange the sale of the furniture in order to obtain funds to meet the arrears of rent. Her explanation of her concern about the arrears was that she and her sister, who was still living in the home, were the principal tenants and her sister informed her that the landlord was pressing for payment. 8. The respondent said that in August 1978 he and the petitioner had quarrelled and that he left the matrimonial home for "a cooling off period". After spending a few days at his sister's home he returned to the matrimonial home to find that the petitioner had left taking household furniture with her. 9. Notwithstanding the indications in the "separation agreement" that the parties were contemplating in January 1978 a separation with a view eventually to a divorce based on the fact of two years' separation and consent I prefer the evidence of the respondent regarding this episode. There is no doubt that it is true as the respondent alleged that he reported to the police that his furniture had been taken without his consent and that as soon as he discovered the buyer of the furniture he bought it back. The police report about the matter states that the respondent's complaint was investigated by a detective inspector and that
10. The report does not state who "revealed" what the petitioner and respondent had done. The report was put in, with others, by agreement to avoid calling the police officers to whom the parties at various times made reports. Presumably therefore the report contains what the detective inspector would have said regarding what one or the other or both of the parties had told him. If the petitioner told the inspector in or about the month of September 1978 that she left home after selling the furniture then what she said then is inconsistent with what she said in evidence but consistent with what the respondent said in evidence about the date of her second departure. If the respondent was the one who "revealed" the details of her departure then what he said then at a time when these proceedings had not been commenced or even threatened is consistent with what he said in evidence. In short, his conduct then gives credence to what he says now. Moreover, the fact that he was able to buy back the furniture so readily shows that he had the means to meet the rent. This conduct equally leads credence to his evidence that he was not so financially embarrassed at the time as to be unable to pay the rent. 11. Both parties agreed that on a number of occasions in May 1979 police assistance was sought during disputes between them. The respondent claimed that the disputes concerned the petitioner's unwillingness to let him see or even know the whereabouts of his son. The petitioner denied that the parties reported to the police that that was the gist of their argument. Again the police reports support the respondent's version. 12. The petitioner claimed that the respondent's prodigality began about three or four months after their marriage. Both agreed that the respondent was then earning about $1,200 per month out of which $800 was set aside in a drawer to meet household expenses. The petitioner however claimed that the respondent during the course of the month filched the money bit by bit until it was wholly exhausted. As a result she was forced to take in work to remedy the deficit. However, when she was asked how much she earned she said it was "$100 odd" which was "barely enough to support the family". The respondent alleged that she took in work but that it was only for a period of about ten days when she was commissioned "to paint dolls". He denied that he plundered the household "kitty" and again his version appears to be closer to the truth than hers. 13. She alleged that after the birth of their child she had to take up full time work to earn enough money to meet the household expenses. At this time the respondent was earning $1,600 or $1,700 per month and placing $1,000 per month aside for household expenses. However the respondent continued wasting money through gambling with the result that almost every month the whole fund was exhausted by him. She had to employ a baby sitter to whom she had to pay $500 per month. Her own earnings were $700 to $800 per month. She was in a dilemma when cross-examination of her revealed that after paying the baby sitter's wages, travelling and other expenses involved in going to and from work she had very little left to contribute to the household. She then alleged that she had been able to save money during her marriage. The respondent alleged that he had wanted her to work before the baby was born so that they could create a "nest egg" for themselves but she refused. After the birth of their child, he claimed, she wanted to go to work to have more money for her own use. His version appears to be closer to the truth. 14. She alleged that on working days the respondent always came home late, never before 11 p.m., and sometimes as late as 3 a.m. To the extent that this allegation implies that she was constantly at home keeping vigil through the night waiting for his return it is grossly misleading. In June 1976 she took a job at an "inn" in Waterloo Road where, as cashier, she had to work three shifts. One week she worked from 7 a.m. to 3 p.m.; another week from 3 p.m. to 11 p.m.; and on a third from 11 p.m. to 7 a.m. Thus, if the respondent came home at 11 p.m. two weeks out of three she might never see him arrive because she would either be on her way to or coming home from work at that hour. The respondent alleges that the nature of her employment and the hours she worked were a constant source of friction between them. Again, his version, once the full facts of her employment are disclosed, has a truer ring than hers. 15. Although there can be no doubt that the two quarrelled frequently, and that they were sometimes in financial difficulties I find the respondent's explanation of those quarrels and the financial difficulties more credible than the petitioner's. The petitioner has not satisfied me on a balance of probabilities that she told the truth about the respondent's behaviour. She has not satisfied me of any fact mentioned in Section 11A(1) of the Ordinance. I cannot therefore grant her a decree of divorce. 16. The parties have agreed that the petitioner should have custody of the child of the family with reasonable access to the respondent. I am empowered by Section 19(1) of the Matrimonial Proceedings and Property Ordinance to make such an order and I hereby do so. 17. I am also empowered by Section 5(1)(2) of that Ordinance to make an order that the respondent make periodical payments for the benefit of that child. The respondent said in evidence that he was prepared to pay $300 per month for the benefit of the child. I therefore order that the respondent make to the petitioner for the benefit of WONG Mimg-hang payments of $300 per month from 1st January 1980 until 17th January 1992 or until further order. 18. There will be no order as to costs except that the costs of each aided party are to be taxed under the Legal Aid Regulations.
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