Fong Kong Shing v. Fong Ng Chun Hung and Another

HCMC000011/1971

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

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Coram: Mr. Registrar Jones in Chambers.

Date of Judgment: 8th January 1973.

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DECISION

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1. This is an application by the respondent wife for maintenance against the petitioner that was adjourned to chambers by Mr. Justice Briggs at the hearing of divorce proceedings on the 15th May 1972 when joint decrees were made in favour of the petitioner on the grounds of adultery and the respondent on the grounds of cruelty. The decree absolute was made on the 16th August 1972.

2. The parties were married on the 8th June 1965. The petitioner is now aged 29 and the respondent 27. The petition filed by the petitioner alleged one act of adultery by the respondent with the co-respondent. The allegation of adultery was denied by the respondent in her answer but stated that if it had been committed it had been condoned by the petitioner. The respondent's answer also alleged cruelty by the petitioner which consisted of various assaults during the period from 1969 to 1971. In his reply the petitioner denied the allegations of cruelty and further denied that the adultery alleged had been condoned.

3. In his judgment Mr. Justice Briggs said:-

4. 'In my opinion there is sufficient evidence here of cruelty to found a decree based on that ground.

5. It has been pointed out to me that Section 15(4)(c) of the Matrimonial Causes Ordinance gives a discretion to the Court to refuse a Petitioner a decree when the Court finds that he has been guilty of cruelty.

6. I do not think I should exercise my discretion in this case and refuse the Petitioner a decree. Adultery is a very serious matrimonial offence indeed. In my view the correct order to make in this case is to grant a decree of divorce to each of the parties.

7. There will therefore be a decree of divorce for adultery in favour of the petitioner and a decree of divorce for cruelty in favour of the Respondent.

8. The question of maintenance remains. At this stage I will only say this. The law is that the Court may, upon granting a decree of divorce award maintenance to a wife. This includes a guilty as well as an innocent wife. However the Court must take into consideration the conduct of the parties when deciding how much to award. [See Sydenham v. Sydenham (1949 2 All E.R. 196)].

9. I have found that the wife in this case has been guilty of a grave matrimonial offence. But this does not of itself disentitle her to a claim for maintenance. It must be considered when any award is made. And it must be noted that the adultery proved was adultery on a single occasion after a considerable history of incidents of cruelty on the part of the Petitioner which I have also found to have been proved.'

10. The respondent said in evidence that she formerly worked in a knitting factory but as there is now insufficient work she is at present unemployed. The respondent further claimed she is unable to work as she is suffering from tuberculosis and heart trouble. However, no medical evidence was produced in support of this contention. When she was employed the respondent said her earnings were in the region of $200 per month but sometimes they were as much as $290. As a result of her ill health the respondent claims that she has to visit her doctor about two to three times a week. The cost of travelling expenses for this purpose amount to $30 per month and the doctor's fees another $30. The respondent listed various other everyday living expenses which in the aggregate amounts to approximately $700. This figure includes a sum of $200 for nourishing food and vitamin pills. When the respondent is not working she receives odd amounts of $100 from her sister. Evidence was given of a dispute between the parties as to the ownership of some cash, ornaments and jewellery but this matter is not relevant to the question of maintenance.

11. A note book in Chinese characters was produced but it had not been translated into English. Apparently the book sets out details of purchases and sales made by the petitioner in his business as a hawker but as they relate to transactions five years ago the book in any event would have provided little assistance.

12. The petitioner said that he is a pedlar hawker selling rubber shoes. According to the petitioner his net profits from sales amounts to 10% which produces a net income of $600 - $700 per month. Although he formerly had two fixed deposits he said that the monies were withdrawn by the respondent which allegation was denied. Upon the evidence before me it is clear that the petitioner has no capital assets of any description apart from his stock in trade. The petitioner estimated that his monthly living expenses amount to approximately $625 which sum includes rent $25, travelling expenses $50, food $200, clothing $50, laundry $50, sundries such as electricity etc. $50 and a remittance to his mother in China of $200. The petitioner said that he had various debts amounting to $30,000 and that he also owes $12,000 in respect of goods.

13. At the conclusion of the first hearing on the 10th August 1972 the application was adjourned to ascertain whether the respondent had any money invested in the United Chinese Bank but at the adjourned hearing it was established that the respondent had no account.

14. In further cross examination at the adjourned hearing the petitioner said that he sometimes sells $10,000 worth of goods per month. Based on this figure Mr. Ching for the respondent submitted that the petitioner's earnings with a net profit of 10% would realise $2,000 per month. The petitioner disputed this figure and said that he had been informed by Government that his hawker licence will be cancelled in the near future but he produced no evidence to this effect.

15. Lindley L.J. in Wood v. Wood (1891) P. 272, 276 enunciated the following principles with regard to the courts discretion to grant maintenance:-

"The circumstances which have to be taken into account are -

16. It is clear from the evidence in this case that although joint decrees were granted that the petitioner was on balance more to blame for the breakdown of the marriage. Neither party upon the evidence is a person of means, but they are both young and of an age when they can easily marry again if they so desire. There are no children of the family. The marriage lasted less than 5 years before the parties separated.

17. The evidence with regard to the petitioner's means was not very satisfactory for he only admitted to an income of between $600 - $700 which I do not accept. I am satisfied that the petitioner's actual net earnings per month amount to somewhere between $1,500 and $2,000, but for the purposes of this assessment I shall adopt the lower figure.

18. Having regard to the judgment of Phillimore L.J. in Ackerman v. Ackerman 1972 2 All E.R. at page 420 I shall start with what is referred to as the 'one third rule'. Apart from the sum of $200 that the petitioner remits to his mother in China for which he is under no legal obligation to pay I accept the other expenses amounting to $425 which should therefore be deducted from the sum of $1,500 which will leave $1,075. Although the respondent is not at present working I shall nevertheless adopt a figure of $250 as her potential earning capacity which when added to the petitioner's income of $1,075 will amount to $1,325. One third of this sum as a round figure is $440 which after taking into account the respondent's income will leave $190.

19. Having regard to the circumstances of this case I shall award the sum of $150 per month as maintenance to be payable during the joint lives of the parties or until further order, the first payment to be made on the 15th January 1973 and thereafter on the 15th day of each month. The respondent is entitled to her costs of and incidental to this application with a certificate for counsel. There will be the usual taxation under the Legal Aid (Scale of Fees) Regulations.

20. Dated this the 8th day of January, 1973.

Representation: