Ho Har Chun Alias Ho Lai Chun v. Yiu Hon Ming

DCCJ002381/1970

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO.2381 OF 1970

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Coram: D. Cons, D.J.

Date of Judgment: 15 December 1970

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JUDGMENT

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1. The parties to this action, to whom I will for convenience refer simply as "the husband" and "the wife", went through a form of marriage in January this year. It proved to be an unwise match. The combination of a fiery-tempered wife, quick to take any offer of offence, and a husband amazingly immature for a man who has spent several years at sea, soon led to trouble. Quarrels appear to have been frequent, in the course of which the husband indulged in certain childish abuse of the wife and her family background, and on two occasions resorted to actual physical violence, although not to any substantial degree.

2. One of the prime causes of irritation to the wife was the husband's penchant for the home of his sister-in-law. Only five days after installing his new bride in the new home at Champagne Court, he made the suggestion that for convenience to herself and to provide for assistance to his sister-in-law, it would be better if in future they took all their meals with his sister-in-law. At first the wife agreed, but she found the atmosphere there so unbearable that within a week she began to look after herself in her own home leaving the husband alone to continue eating there. Indeed thereafter the husband seems to have spent the major part of his time apart from his wife, leaving home fairly early in the morning to return only fairly late at night.

3. On the 9th of March the husband and wife gave up their new flat to move into the room occupied by the husband's mother, who relinquished her bed in their favour but returned to look after them during each day. By that time the husband had been out of employment for some two and a half months, and I presume the move was dictated by economic considerations. At the same time he made his first efforts to secure further employment at sea, although not telling his wife of this until much later.

4. On the morning of the 18th matters came to a head. It is difficult to decide what actually started that particular quarrel, or over what sore points it ranged, but it is clear that the two major issues of money and the marriage certificate were mentioned. The latter should have been obtained from the Marriage Registry a few days previously, but the appointment with the Registry had been missed through quarrelling. As to money, the husband gave the wife none whatsoever throughout the time they lived together, except for a small sum at Chinese New Year. Perhaps indeed the position was reversed, for there is strong suspicion that in the middle of February he had made away with some jewellery that had been given to the wife as personal wedding presents.

5. These are the salient features of the marriage as I find them. It will be readily seen that I have in general accepted the evidence of the wife. I found her far more reliable than the husband, although undoubtedly unhappy memories have to some extent distorted or exagerated the details in her mind. But before proceeding further it is necessary to look at the earlier matters, to ascertain whether the parties became man and wife by a Chinese Customary Marriage or merely, as the defence suggests, by a Chinese Modern Marriage. Some of the facts in this respect were agreed by Counsel at the opening of the trial the others have appeared from the evidence.

6. It seems that the marriage had its origin in a long standing friendship between the husband's sister-in-law and the wife's mother. In March of last year, the husband then being at sea, photographs were exchanged and correspondence between the husband and wife ensured. This apparently proved satisfactory, and in September the husband met the wife for the first time when he returned from one of his voyages. The meeting was arranged at a restaurant and there were present Mrs. Cheng, the lady who acted as introducer or go-between on behalf of the wife's family and also various members of that family. For the next two weeks, until he rejoined his ship, the husband courted the wife frequently, even raising the question of marriage which at that time the wife thought was premature.

7. On the husband's next return from sea in December he again approached the wife, who this time accepted the suggestion of marriage. The husband thereupon fixed a date for the wedding by agreement with his own family alone and telephoned the same to the wife.

8. Soon thereafter gifts were purchased and exchanged. Jewellery, wine and food were conveyed to the wife and her family by one Mrs. Ng, who had become the other go-between, while wine and food were sent to the husband's family by Mrs. Cheng to whom I have already referred. Both go-betweens had also accompanied the husband and wife on their expenditions to choose the jewellery.

9. On the morning of the "wedding" itself the wife was fetched from her mother's by the husband, Mrs. Ng and the bestman, and conducted to the new home in Champagne Court. Special photographs were then taken. In the evening a dinner of 18 tables was given in a restaurant at which the husband and wife offered tea with some ceremony to the two mothers and to the two go-betweens. There was also some from of worshipping of the gods. The following day, after spending the night in their new home, the husband and wife made the rounds to offer tea again to the two mothers and also to the husband's sister-in-law.

10. I was referred to the usual authorities relating to the Six Rites upon which the Chinese Customary Law of Marriage is based. In addition I had the expert assistance of Mr. Henry Hu Hing-lik, who gave a similar account of the Six Rites and pointed to the particular evidence in this case which in his opinion satisfied these rites. The only exceptions were the 2nd and 3rd rites, i.e. the exchange and consideration of the exact dates and times of the parties birth, a practice that appears now to have become obsolete.

11. The principal objection raised by the defence is that the betrothal, if it can be said to amount to such, was a betrothal at the instance of the parties themselves rather than in accordance with the tradition that requires it to be between the heads of the respective families. The evidence of Mr. Hu Hing-lik however was that the tradition was by no means inflexible, particular where circumstances are such that it is difficult, if not impossible, for the family heads to take part. In the present instance the husband's father was in mainland China, while there has been no mention in the evidence of any senior male member in the wife's family at all. Moreover, the betrothal was clearly with the consent of the close members of the respective families and was cemented by the customary exchange of gifts. Mr. Hu was of the opinion that the present marriage, more so than many upon which he has been called to advise, was a valid Customary Marriage. With respect I have come to the same conclusion. It does not appear to be disputed that the husband is a Chinese man, and the wife being his first or "Kit Fat" wife is therefore entitled to bring her application, as she does, under the Separation and Maintenance Ordinance.

12. The wife seeks her Order upon two grounds, persistent cruelty and wilful neglect to maintain. The cruelty is said to be partly constituted by frequent abuse and suggestions that she should leave, or continue to remain away as the case may be from the matrimonial home. But these matters took place during quarrels, pursued equally by both sides, and I am not satisfied that in those circumstances the words used by the husband can be considered sufficiently grave or weighty to amount to cruelty. The two physical assaults are more serious, but looking at them in the context in which they occurred I am again not prepared to say that they amount to cruelty of a persistent nature.

13. I turn now to the willful neglect to maintain. When it came to any question of money the evidence of the husband was so unsatisfactory that I find it impossible to reach any reasonable conclusion as to his financial resources, either during the time that he lived together with his wife or since. I think it probable that during the former period he was not completely penniless, and I do not accept that at the moment as a qualified technician he is unable to obtain a salary higher than could be expected by an untrained coolie. But the point is academic for I have no doubt the parties are now living apart as much by the wish of the wife as by that of the husband. When she left him on the 18th of March it was with an intention to remain away, if not for good, at least for some time. This is confirmed by her taking with her the gold cuff-links which had been presented by her mother to the husband as a personal wedding present. She did not desert him because he was content that she should go. But this by itself is not sufficient to justify her leaving. There must also be conduct which is of such a grave and weighty character as to make cohabitation virtually impossible. I am not satisfied that the unplesantness of the husband reached that level.

14. Where spouses are living apart by mutual consent the husband is under a liability to maintain his wife only if there is an express or implied agreement between them that he shall do so. In this instance no agreement was expressly made nor are there any circumstances from which it may be implied.

15. For these reasons the application of the wife must be dismissed.

15 DEC 1970

Representation:

Mr.Sin(P.H.Sin & Co) for the Legally aided plaintiff.

Mr.Cheung, instructed by (Lo & Lo) for the defendant.