Lau Pui Kwai v. Lee Shue

HCMC000003/1968

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO.3 OF 1968

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Coram: Mills-Owens J.

Date of Judgment: 11 April 1968

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JUDGMENT

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1. The parties were married on the 17th April 1964 when the husband respondent was 42 years of age and the wife petitioner was 38. She had been previously married and was a widow. There are no children of the present marriage. The wife has a daughter, born in 1956 of her previous marriage who has been treated as a child of the family. The petitioner bases her petition on cruelty. She ceased to live with the respondent in July 1967 and now earns a living as a dish-washer at a restaurant. The respondent is a relief coolie, that is to say a casual worker able to earn, according to the wife, $22 per day when he is working.

2. The petitioner's main complaint against her husband, as it appears to me, is that he is a lazy, shiftless individual who is fond of gambling and who did not provide her and her daughter with adequate means of support so that she was forced to go out to work herself. She says that in the period from the date of the marriage in April, 1964 until the date she finally left him in July, 1967, a period of some 40 months, he worked in the aggregate for a period of only 19 months - being something like half the time idle; he never obtained a permanent job.

3. But this was not her only complaint. She says that he is a man given to moroseness and anger. In August 1964, just a few months after the marriage, she says, an incident occurred which caused her distress. According to her evidence he asked her for the sum of $600.00. It appeared that she then had some savings derived from her previous marriage, amounting to a few thousand dollars. She refused to give him the money and as a result there was a dispute. She does not allege any violence on his part in respect of this incident. But she says he sulked and refused to talk to her for three months and that he withdrew from marital relations with her for that length of time. Finally she made the peace by proffering ten dollars and suggesting they go to the cinema. He agreed and they resumed normal relations. She says the same thing occurred again from time to time - on three or four occasions. Whenever she refused to give him money he adopted the same course of conduct, refusing to speak to her and refusing to have marital relations with her. She says that she felt humiliated and suffered from headaches and backache owing to his conduct. She consulted a doctor but had been unable to locate him to come forward to give evidence on her behalf.

4. In July 1966, the wife says, she left the respondent and lived apart from him for some two months. During that period she made application to a magistrate for a separation and maintenance order, which was granted on the 11th September 1966. But in fact, she says, she returned to the respondent at his request the day before the order was made. She says she left him (in July 1966) as the result of a dispute which arose out of her borrowing a sum of $100 from her church. He was annoyed about it and ignored her, as she says, for several months. She left home and commenced the separation proceedings. But she apparently went to see him, to tell him to attend Court. He became angry and threw a mirror at her. She does not suggest that she was injured in any way or that the incident developed any further except that they both went to a police station where he was cautioned and that after returning he made threatening remarks to her.

5. On the 2nd May 1967, she says, she told him she had taken a job; he objected and threatened her. On the 6th of the same month she endeavoured to leave the house early in the morning, taking her daughter with her. The respondent awoke, prevented her from going and struck her, as she says, two heavy blows on the arm. The doctor who was called to give evidence on her behalf said the injury caused was a mere bruise. Finally she managed to leave the house on the 29th July, 1967. Her difficulty in getting away earlier was obviously due to her desire to take her heavy furniture with her. During that period the respondent was in employment and but for wishing to take her furniture with her, she agreed, she could have left at any time when he was absent at work.

6. The petitioner finally said she had to leave the respondent as she was broken-hearted at having to support herself, her daughter and him also.

7. There is no evidence of any real violence and nothing beyond the petitioner's statement regarding her state of health. It is not suggested that the respondent has bothered her since she left him. There is no corroborative evidence of her statement that his conduct, in particular his moroseness and withdrawal from marital relations, caused any injury to her health, although I accept that in general she is a witness of truth. However, to all appearances she is a strong, healthy woman. What I have to determine is whether the sum total of the husband's conduct was cruel. There are two main matters to consider; the withdrawal from marital relations and the neglect to maintain. With regard to the first of these I have derived the greatest assistance from the judgment of Lord Denning M.R. in Sheldon v. Sheldon⁽¹⁾, at 259-60 where he said:-

"Before the decisions of the House of Lords in Gollins v. Gollins and Williams v. Williams many of us would have said, as Hodson, L.J., said in Clark v. Clark

'the mere fact that sexual intercourse does not take place between the parties, even if that is because one unjustifiably refuses to have intercourse, is not of itself cruelty.'

We should not have held the refusal to be cruelty unless it was done with an intention to inflict misery. Both Bucknill, L.J., and I said as much in Kaslefsky v. Kaslefsky; but now Kaslefsky v. Kaslefsky has been overruled. It has been laid down that in cruelty it is not necessary to show an intention to injure or inflict misery. Nor is it necessary to show a guilty mind. One essential element is injury or apprehended injury to health. In Gollins v. Gollins Lord Pearce said:

'In the light of the vital fact the court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently weighty to say that from a reasonable person's point of view, after a consideration of any excuses which the respondent might have in the circumstances, the conduct is such that the petitioner ought not to be called on to endure it.'

The other essential element is that the conduct must be grave and weighty. In Williams v. Williams Lord Reid said that

'... after making all allowances for his disabilities and for the temperaments of both parties, it must be held that the character and gravity of his acts were such as to amount to cruelty.'

The House of Lords did not set any limits to the kind of conduct which may constitute cruelty. The categories of cruelty are not closed. The persistent refusal of sexual intercourse is not excluded. It may amount to cruelty, at any rate when it extends over a long period, and causes grave injury to the health of the other. One must, of course, make allowances for any excuses that may account for it, such as ill-health, or time of life, or age, or even psychological infirmity. These excuses may so mitigate the conduct that the other party ought to put up with it. If, after making all allowances, however, the conduct is such that the other party should not be called on to endure it, then it is cruelty."

Lord Denning goes on to analyse the cases on persistent refusal of intercourse both before the decision of the House of Lords in Gollins v. Gollins and after that decision.

8. I am unable to accept that the respondent's occasional silences and withdrawal from marital relations constituted cruelty, in the circumstances of the case. His conduct does not appear to me to have been of such a grave and weighty nature as to have rendered married life unendurable. Moreover, the evidence of deterioration in the petitioner's health is such as to be virtually non-existent.

9. As I said earlier, her main complaint, and I think probably her only real cause of complaint, is the respondent's failure to earn enough to avoid her having to go out to work to support her daughter and herself. In this respect, obviously one must avoid bringing about a position whereby neglect to maintain becomes a new, unauthorised, ground for divorce. Mr. Arculli referred me to the case of Dunn v. Dunn⁽²⁾ where both members of the Divisional Court (the President, Sir Jocelyn Simon, at p.591 (H), and Karminski J. at p.592 (H)) said that wilful neglect to maintain can itself constitute cruelty. But, clearly, that was in the context of the case. In the present case the difficulty, as I see it, is in determining whether the respondent's lack of provision for the household was, indeed, wilful or merely due to economic circumstances. The evidence, in my view, falls far short of showing that it was wilful; and, again, there is no acceptable evidence of injury to the petitioner's health. Mr. Arculli has laid emphasis on the phrase commonly used in cruelty cases: 'proved injury to health or reasonable apprehension of such injury', particularly the words 'reasonable apprehension of such injury'. I do not think that any reasonable apprehension of injury can be said to have arisen in the present case. In this connection I would refer to the judgment of Hill J. in Miller v. Miller⁽³⁾ cited with approval in Dunn v. Dunn⁽²⁾:-

"The husband's conduct may have been unfeeling but I cannot call it cruel ... It was contended ... that the authorities abundantly show that where previous cruelty has been condoned slight acts, even if insufficient in themselves to establish cruelty, will be sufficient to revive past legal cruelty. Rightly understood, this proposition is accurate, but in all the cases it will, I think, be found that the later acts were such as in fact affected the mind tutored to apprehension by the earlier acts, and thereby affected the health of the wife, or that they were such as in themselves showed a likelihood of the recurrence of the earlier acts, and so justified a reasonable apprehension of such danger to the safety or health of the wife as made it unsafe for her to continue to live with that husband."

It is in this sort of context that the matter of reasonable apprehension of injury to health arises. There is, in my view, no such history of violence, or other conduct, in the present case as would have caused reasonable apprehension of injury to health.

10. For the foregoing reasons I am obliged to dismiss the petition.

11. Order for taxation of petitioner's costs under regulation 15 of the Legal Aid Regulations.

11th April 1968.

Representation:

Ronald Arculli instructed by Kho & Lo (on legal aid assignment) for petitioner.

(1) (1966) 2 All E.R. 257.

(2) (1962) 3 All E.R. 587.

(3) "The Times", May 3rd, 1922.