Leslie Shu Wu-tsin v. Shu Lau Ngun-ngun

HCMC000120/1972

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 120 OF 1972

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Coram: Blair-Kerr, S. P. J. in Court.

Date of Judgment: 14 FEB 1973

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JUDGMENT

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1. I shall refer to the parties as "the husband" and "the wife". The matter before me is a petition by the husband that he be granted a decree nisi of divorce from the wife on the ground that she has behaved in such a way that he cannot reasonably be expected to live with her and that consequently the marriage of the parties has broken down irretrievably.

2. Counsel for the wife does not seriously dispute that the marriage has irretrievably broken down; but his contention is that it was not the wife's fault, that it was the fault of the husband; and that consequently his petition should be dismissed.

3. The husband was born in North China 56 years ago. His first wife, whom he married in Shanghai, is now dead. He came to Hong Kong in 1950. He is a business man. He was, for a time, manager of Martin Ross & Co.; and for the last 10 years he has been a director of Tai Fak Manufactory Co. Ltd.

4. The wife is now 40 years of age. She is also a "northern" Chinese, although she was born in Hong Kong. The parties were married in March 1960. There are no children of the marriage.

5. Broadly the issue which emerges from the evidence is this: He says that she is a bad-tempered, drunken, nagging woman; that until he left her in August 1972, she not only nagged him almost continuously in their home, but she came almost daily to his office where she made a thorough nuisance of herself by scolding him in anything but lady-like language, assaulting him, damaging his desk, threatening him with a knife, and generally causing him to lose face with his office staff; indeed, he says: it reached the stage when neither he nor his staff could get on with their work, and that he stayed away from the office in order to escape from her. The result of all this, he says, is that his health was beginning to be affected, and he felt that he simply could not carry on living with her any longer.

6. She admits that they have had many quarrels both in the home and in his office; but she says it has all been due to the fact that, under the pretence that he is entertaining business associates, in the evenings he is in fact associating with another woman. Indeed, she says that he has admitted to her that he "prefers" this other woman to her (the wife), and that his association with this other woman has nothing to do with her (the wife). However, she has not instituted inquiries with a view to obtaining evidence to support an allegation of adultery on the part of the husband, and she has no intention of doing so in the future. She has not filed a cross-petition. Indeed, her attitude is that if he could only be persuaded to give up this other woman, they could go on living quite happily.

7. In some ways he has been a good husband. He has provided her with a good home. During the marriage they have resided at 3 different addresses viz. 116 Leighton Road, 5th floor flat D; 7 Kai Yuen Terrace, 1st floor; and Marigold Mansion, Flat C, 6th floor. I gathered from the evidence that it was the wife who wished to move from 116 Leighton Road to Kai Yuen Terrace because she wanted a better home; and he acceded to her wishes. Since he left her in August 1972, she has been residing at the Marigold Mansion address. He bought her a flat in Kwun Tong in which her parents and yourger sister now reside. She has always had the use of a car and her allowance has always been adequate. At present he is paying her $4,500 per month and he intends to continue doing so who has no complaints on that score. What he has not given her is love and affection. He said in evidence that very soon after his marriage he found that he did not love her. Intercourse took place on an average of only "once every one or two months", according to him.

8. From the nature of his work he is required to do a good deal of entertaining, mostly as regards business associates from the United States, Japan and elsewhere, but also as regards persons, in Hong Kong with whom he has business relations. He also finds it necessary, in the conduct of his business, to visit the United States, Taiwan, Singapore and elsewhere from time to time.

9. However, the impression I got from the evidence was that he did not regard his business entertaining as an unfortunate, but necessary "chore". I think he was glad to be able to spend the greater part of his time away from a wife whom he has never really loved, and who, according to him, nagged him almost continuously both at home and in the office.

10. I do not accept his denials in regard to "the other woman". I accept the wife's evidence that he admitted to her that he is associating with another woman. The only question is: Was it her bad-temper and nagging which caused him to spend most of his evenings either entertaining business friends or in the company of this other woman? Or was it his neglect of the wife as a result of his excessive entertainment of business friends and his association with the other woman which caused her to react in such a way as to make ordinary matrimonial life an impossibility?

11. There is no simple answer to this. Clearly, she is a very emotional and highly-strung person; and I am inclined to think that she always has been a nagging wife. Of course, his lack of affection from the beginning did not give the marriage a chance. Indeed, I cannot help wondering why he ever did marry her.

12. Be that as it may, the parties appear to have allowed their marriage to drift on. What changed the situation was the motor accident which occurred in October 1969. The husband was in Los Angeles on a business visit. The accident occurred at 4 a.m. near Shatin. She was driving a motor vehicle from Kowloon toward the New Territories. She had been drinking that night. Her sister's husband, who was a passenger in the car, was killed and she suffered very severe facial injuries. She was in hospital for 3 months. She then went to Japan for the purpose of having cosmetic surgery performed; but there is no doubt that her facial injuries have permanently impaired her good looks.

13. Naturally, she was very conscious of this. She became less confident in her ability to hold her husband. His frequent absences from the home increased her suspicions as to what he was up to. Her nagging increased. If there had been any genuine love-bond between them, he would, of course, have done something to comfort and reassure her. But, in the circumstances, her ever-increasing bouts of temper and nagging and her disturbing visits to the office had the effect of driving the couple further apart.

14. Of the "facts" enumerated in s.11A of the Matrimonial Causes Ordinance, the only one applicable to this case is that covered by para (b) of sub-s.(1). This para. covers what was known under the old law as "constructive desertion".

15. Obviously, this is a border-line case; but, in my view, the petitioner has proved, on the balance of probabilities, that the main cause of the break-up of the marriage was the behaviour of the wife.

16. As I have said, I am satisfied that the marriage has broken down irretrievably. If the wife were honest with herself, she must recognise this. Indeed, in my view she defended this suit only out of fear that, as a divorcee, her security, from the financial point of view, might be reduced. The marriage itself is an empty shell.

17. For these reasons, there will be a decree nisi of divorce.

18. Before adjourning I inquired from counsel for the petitioner what the petitioner's attitude would be as regards costs. I gathered that he would not oppose an order that he pay the respondent's costs of these proceedings. Therefore, I so order.

Representation:

A. Sedgwick (John Ip & Co.) for petitioner.

C. Ching (Helen A. Lo & Co.) for respondent.