Lam Lo Kwai Chun v. Lam Chiou Gong

HCMC000127/1967

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 127 OF 1967

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Coram: Rigby, S.P.J. in Court.

Date of Judgment: 17 May 1969

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JUDGMENT

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1. This is a wife's Petition for divorce on the grounds of adultery. The Respondent by his Answer admits the adultery but says that the Petitioner condoned the adultery and knew of his relationship with the adulteress, a woman named Lo Mui, for a very considerable period. The Respondent further prays for a decree of divorce against the Petitioner on the grounds of wilful desertion without reasonable cause by the Petitioner, and by reason of the Petitioner's own adultery.

2. The allegation as regards the Petitioner's adultery is in respect of an alleged admission made by her that she had committed adultery with a man named Wong Shing. In the course of these proceedings, and indeed at a very late hour, Mr. Ming Huang, for the Respondent, asked leave to amend the Answer by a specific allegation that the Petitioner since the 3rd day of September 1963 had repeatedly committed adultery with the said Wong Shing. Mr. Wong for the Petitioner did not resist that application for amendment although it was made at such a late hour; and he admitted that having regard to the allegation concerning the admission of adultery pleaded in paragraph 9 of the Answer, he could not fairly say that he was taken by surprise.

3. The parties were married on the 12th of December 1956. At that time the Petitioner was aged 27 and the Respondent aged 22. There are no children of the marriage, but some time in 1959 the parties adopted a baby girl who was then only about three days old. The husband, at the time of the marriage, and indeed throughout the marriage, has earned his living as a rattan ware worker and the wife has earned her living independently, both as a rattan ware worker and as a knitter.

4. After the marriage the parties lived together at Shekkipmei Resettlement Estate. It is apparent from the evidence that the Petitioner left the Respondent on the 3rd of September 1963. I say that that is apparent from the evidence, but there is no reference in the Petition itself to that fact and it only transpires from the Answer put in by the Respondent and the Petitioner's subsequent reply to that Answer and from the evidence which has been given in this case.

5. A vital issue which I shall have to decide is whether or not the Petitioner left the matrimonial home with or without reasonable cause. The Respondent's adultery, as I have said, is frankly admitted. He admitted that on the 8th day of the 2nd moon in 1964, which is in fact the 21st of March, 1964, he took the woman Lo Mui for all intents and purposes as his concubine and has had three children by her, two of whom are still alive and were born respectively in September 1965 and September 1966.

6. I propose to deal with the circumstances concerning the Petitioner leaving the matrimonial home on the 3rd of September 1963. The Petitioner's evidence in that respect was that there had been quarrels between the parties; that the Respondent was addicted to gambling; that she remonstrated with him about it, and that he frequently, if not repeatedly, told her to mind her own business and if she was not satisfied she could leave. On the 3rd of September she again complained to him about this gambling - I think playing a game of mahjong the previous day - and the Respondent again told her to mind her own business and that if she did not like what he was doing she could leave. Having heard this so repeatedly, she took him at his word and invited him to come over and watch her pack, which he did, and that she then, having packed, left the house with her belongings without any protest or request from the Respondent that she should not go.

7. The Respondent tells an entirely different story. He says that for some considerable time past he had shared premises with a man named Wong Shing, both of them working as rattan ware workers; that his wife worked with him and that he noticed that his wife was becoming more and more friendly with the man Wong Shing and that he remonstrated with her about it. He said that on the morning of the 3rd of September 1963 he woke up and found that his wife had already left. The same day he reported the matter to the police but the police told him, in effect, that the report was premature; that he went again the next day and reported the matter to the police and that he made numerous enquiries to try and find out where his wife was, but without success. However, in or about the 30th of November 1963, as a result of the enquiries he had made he went to certain premises at 25 Luen On Street, 7th floor, where he had reason to believe the Petitioner was. He did not find her, but on the 2nd of December he again went to these same premises with his mother and after having waited about for some time he saw his wife at those premises and spoke to her and asked her to return to him. She refused to do so and also told him, in effect, that she was still associating with Wong Shing. Although there are certain inconsistencies in the evidence, that evidence is corroborated to a very large extent by the Respondent's aged mother who gave evidence before me. She was not present at the time of any admission made by the Petitioner to the Respondent, but she does corroborate the fact of the meeting and the fact that the Petitioner was asked to return to the Respondent but she refused to do so.

8. The small adopted child, a girl now aged 10, was also called as a witness. She is a girl named Lam Lai Yung. She seemed to be a bright intelligent little girl, but I thought it undesirable that she should be sworn or affirmed. She said she was a Catholic but admitted that she had no religious instruction, and it was for that reason that I said I thought it undesirable that she should be sworn. It is, indeed, tragic that a small girl like this should be called to give evidence in a case of this nature. But, of course, if her evidence was relevant - and, indeed, it seemed to me very relevant - that no doubt justifies the action of the party in calling her. I then carefully warned her that she must speak the truth in this case and that she must tell me only what she knew of her own knowledge and if anybody had told her what to say, or anybody had told her untruthfully what to say, she should pay no regard to that but simply tell me the truth. At a very early stage in her evidence she told me that someone had in fact spoken to her and told her what she was, in effect, not to say; and she then said that her mother, the Petitioner, had told her not to say anything in respect of the fact, as the little girl alleged, that she and her mother and another man - who had been very briefly referred to earlier in the case by the name of Lam Shing - were in fact sharing the room and in fact sleeping in the same bed. Furthermore, she said that from time to time when she had gone home with her mother, she had shared the same bed with her mother and the man Wong Shing.

9. Now, in so far as the allegation of adultery with Wong Shing is concerned, Mr. Wong has said, with some justification, that there had been no particulars given with regard to that allegation but merely a general allegation, and that in those circumstances this little girl's evidence should not be relied upon or even admitted. I accept that submission in so far as the allegation of adultery is concerned, but in my view, her evidence, if it is to be believed, is directly relevant as to the reason why the Petitioner left the matrimonial home on the 3rd of September 1963; and, if it is to be believed, it strongly supports the Respondent's own evidence that the Petitioner left the matrimonial home because he had remonstrated with her about her association with the man Wong Shing and she wished to continue that association. In my judgment, the little girl was telling the truth and I accept and believe her evidence, and I am satisfied that it does corroborate the Respondent's evidence as to the reason why the Petitioner left the matrimonial home. In arriving at this conclusion I bear in mind that the little girl is living with the Respondent; that she may well be said to be under his direct influence, and that it might equally well be said that she had been prompted or persuaded by her to give this evidence. However, I do not believe that to be the position. Furthermore, it is significant that Mr. Ignatius Wong, for the Petitioner, made no serious attempt to cross-examine this little girl or to suggest that she had been prompted or induced by the Respondent, or anyone else, to give false evidence. I am quite satisfied that she was telling me the truth. I am quite satisfied on the evidence that the Petitioner left the matrimonial house without reasonable cause and because she wished to continue her association with the man Wong Shing.

10. It is also of relevance that after she had left the home a letter was found by the Respondent. That letter is no longer in existence. The Respondent says that he doesn't know where it is, but the Petitioner herself in cross-examination admitted, in effect, that the contents of that letter were, in substance, that she wished to go to Canton in order to see an elder sister. It would seem remarkable that if in fact she had suddenly decided to go because of the Respondent's conduct, that such a letter should have been in existence at all. Her explanation for it was that she had contemplated for some time past going to see her sister and had written the letter but had in effect kept it in abeyance and put it under the mat. That is the evidence that she gave.

11. There was, furthermore, the evidence, which I accept and believe, of the Respondent's mother that prior to the 3rd of September 1963 she had noticed the Petitioner taking away small parcels of clothing from the matrimonial home. She had asked her for what purpose this was being done and the Respondent had said that she was taking them to the laundry. I believe the mother's evidence and I am quite satisfied that the Petitioner at that stage had already made up her mind to leave the matrimonial home, and in this way was removing her clothing piece by piece so that she could the more expeditiously depart from her home at some suitable time.

12. As I say, I am quite satisfied, on the evidence, that the Petition left the matrimonial home without reasonable cause. I am equally satisfied on the evidence that it was only some months after she had left the home that the Respondent met and lived with the woman Lo Mui. The Respondent's explanation for that was that when he saw his wife on the 2nd of December he told her then that someone would have to look after the child and have to deal with the domestic housework, and that the Petitioner then told him to get another woman. Thereafter he frequently told the Petitioner the same thing and she consistently told him to get another woman. It may be suggested that all that she intended was that the Respondent should get some female for the purposes of domestic housework and in order to look after the small adopted child. I am satisfied, however, that at that stage the Petitioner was entirely indifferent as to whether or not the Respondent took a concubine or mistress.

13. I am satisfied that thereafter the Petitioner did visit the matrimonial home from time to time to see the adopted daughter; that she saw the woman Lo Mui there; and I have no doubt whatsoever that she well knew that the Respondent was living with this woman, and that she condoned that situation - that adulterous situation.

14. In the result I am satisfied that the Petition must be dismissed. I exercise my discretion in favour of the Respondent in respect of his own admitted adultery and I grant him a decree nisi on the grounds of wilful desertion without reasonable cause by the Petitioner. The Petition must be dismissed and there must be a decree nisi in favour of the Respondent on the grounds of desertion without reasonable cause.

15. The costs must be taxed and paid to the Director of Legal Aid in accordance with rule 15 of the Legal Aid Rules.

16. There only remains the matter of maintenance. A guilty wife may well be entitled to some maintenance. The Respondent told me that since 1963 he has had three abdominal operations. I had, of course, the fullest opportunity both to see and to hear him in the witness-box. He certainly gave me the impression of being a sick man. The Petitioner, on the other hand, seemed to me a reasonably strong and able bodied woman. The Respondent has to support his aged mother, the woman Lo Mui with whom he is living, his own adopted daughter, a crippled stepson of Lo Mui now aged 13, and the two children he has had by Lo Mui who are now aged just under three and four years respectively. He tells me that his average monthly income is a little over $100 per month. The Respondent is certainly able to work and look after herself. In these circumstances I feel that the best that I can do is to make an interim order for maintenance in favour of the wife in the nominal sum of $5 a month, to commence with effect from the 1st of June. A similar nominal order of $5 per month permanent maintenance to be made on the decree being made absolute. Liberty to either party to apply to vary the order made.

Representation:

I. Wong (P.H. Sin & Co.) assigned for Petitioner.

M. Huang (Hastings & Co.) assigned for Respondent.

Judgment delivered.