Lee Yuen Sam v. Lee Tang Hop Wo
Read the full judgment text of HCMC 14/1978 on BabelCite. This High Court CFI judgment was delivered on 19 December 1979.
1. This is a suit by a husband seeking a decree of divorce on the ground that the marriage has broken down irretrievably. In support of that ground the husband pleads that his wife has behaved in such a way that he cannot reasonably be expected to live with her.
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HCMC000014/1978
----------------- Coram: Mr. Commissioner de Basto, Q.C. Date of Judgment: 19 December 1979 ----------------- JUDGMENT -----------------
1. This is a suit by a husband seeking a decree of divorce on the ground that the marriage has broken down irretrievably. In support of that ground the husband pleads that his wife has behaved in such a way that he cannot reasonably be expected to live with her. 2. The parties were both forty-two years of age when they were married in March 1974. There is one child of the family, a daughter, born in January 1976. 3. The husband testified that at the end of 1975 or the beginning of 1976 the wife began to act "strangely". This strange behaviour continued until April 1976 since when the parties have lived separately. 4. The husband said that a few times a month, when it was time to retire, the wife would use some hard object to "knock" against his bed. This knocking would last for about 20 to 30 minutes at a stretch, then there would be a break and the whole procedure would be repeated until dawn. This interrupted the husband's sleep. 5. The husband alleged that on other occasions the wife would, from about midnight move things out of a cupboard and place them on her bed (which was immediately adjacent to that of the husband's) and then she would re-arrange these back in the cupboard. This activity continued until dawn. 6. The husband said the wife was on bad terms with her neighbours. In about November 1975 the wife had a fight with a neighbour, Mrs. Kwan. Both the wife and Mrs. Kwan were charged and convicted of common assault. The wife was bound over. The wife admitted this incident and conviction in her Answer but said she was then eight months pregnant and that Mrs. Kwan had started the fight. In the witness box, however, she accused the husband of paying someone to assault her. This was obviously an embellishment. 7. The husband came home on the evening of the 20th February 1976 and as the wife did not respond to his knock, he went to the reporting centre at the estate. He returned with two police officers who forced open the door of the flat. He said the wife was lying on the bed with the daughter (who was then less than a month old) beside her. She was not asleep, her eyes were "wide open". The wife did not respond when the police and the husband tried to elicit from her an explanation. In evidence the wife admitted she did not open the door and the reason she gave was that she was feeding the baby who would "disgorge" her milk whenever she (the baby) saw the husband's father. I do not believe that explanation. In her answer the wife had pleaded that she did not open the door because she had had a quarrel with the husband. I think that reason was probably nearer the truth. 8. There was evidence that at about 4 a.m. the same night the baby's arm was broken. Both the husband and his father assumed, as I understand it, that the wife had deliberately broken the child's arm. The daughter was lying next to her mother - she was less than a month old. Whether the wife had rolled over in her sleep and accidentally caused the injury I do not know but there is no evidence to support any reasonable inference that the wife deliberately broke her daughter's arm. The child was detained in hospital for a little over a month - till the 26th March. 9. After this, according to the husband, the wife's behaviour became worse. The wife admitted having a fight with another woman on the 25th February 1976 while queuing for water at a communal tap. She was charged with common assault. The wife was referred to the Yaumati Psychiatric Clinic for examination and then transferred to the Castle Peak Hospital. On the 11th March 1976 a magistrate adjourned the case against her until the 9th April 1976 and remanded her to the Tai Lam Centre for Women pending a psychiatric report. On the 9th April, after the psychiatric report was submitted to the Court, the learned magistrate found the wife guilty of common assault but discharged her. 10. The wife admitted that on one occasion, I am not sure exactly when, she burnt a framed photograph of her father-in-law just outside the flat. The wife said she did this because the father-in-law had destroyed Mrs. Kwan's ancestral tablets as a result of which she lost Mrs. Kwan's friendship. 11. On the 22nd April the husband took his wife to the Yaumati Psychiatric Clinic for a check-up. She was transferred to the Castle Peak Hospital. In paragraph 2 of her Answer the wife pleads, by inference, that she remained in the Castle Peak Hospital till the 29th October 1976 after which she resided at the Female Halfway House. The parties have lived separately since 22nd April 1976, and the wife alleges that after her discharge from hospital the husband refused to resume cohabitation. 12. The wife said she and the husband got on well until she was pregnant and had the fight with Mrs. Kwan to which I have already referred. 13. It is not in dispute that the husband visited the wife once in the Castle Peak Hospital before their marriage. I did not notice anything out of the ordinary in the wife's conduct during these proceedings. 14. What is the test to be applied in deciding whether a respondent's behaviour is such that a petitioner cannot reasonably be expected to endure cohabitation? Omrod J. in Pheasant v. Pheasant(1) put it this way:
15. It is important to bear in mind that section 11A(1)(b) of the Matrimonial Causes Ordinance refers to "behaviour" and not to "intentional behaviour". Of course intent may aggravate the effect of the behaviour of which a petitioner complains. Being mentally ill, as such, is not behaviour of the kind contemplated by the Ordinance but behaviour consequent on such illness may come within the terms of the Ordinance. In Thurlow v. Thurlow(2) Rees J. said:
16. The wife is illiterate - her Answer does not appear to have been professionally drawn. She was not legally represented. 17. Although the wife was in the Castle Peak Hospital on about three occasions including a period before her marriage, there is no evidence whatever to indicate what affliction she is alleged to have suffered from. Was she depressed, schizoid, paranoid? The expression "mental illness" covers a wide range of mental aberrations from serious neurotic or psychotic conditions to relatively minor ones. What was the prognosis? As Rees J. said in Thurlow v. Thurlow (supra) at 988:
18. In Thurlow's case (supra) the court had before it five (sic) medical reports. There was evidence of the medical prognosis of the respondent. The court in that case was able to say on the evidence (part of which I shall quote in a moment) that the petitioner husband's powers of endurance were exhausted and his health endangered. In the instant case there is no medical evidence - no prognosis. The only evidence of the husband's reaction to the wife's conduct is the one rather terse statement "I cannot stand such conditions any more". In Thurlow's case (supra) Rees J. quoted part of the petitioner's evidence on this aspect:
19. Admittedly some witnesses are more articulate than others but even in the case of less coherent witnesses attempts should be made to elicit details from generalized statements. In the instant case, the husband having testified "I cannot stand such conditions any more", he might have been asked "why do you say that?" and this might have evoked his more precise reactions to his wife's behaviour. 20. Divorce cases are a specialized branch of the civil law. There is imposed upon a judge in divorce cases a statutory duty (Section 15(1) Matrimonial Causes Ordinance) "to enquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent". This inquisitorial duty of the court necessarily imports, to my mind a corresponding duty on counsel in divorce cases to assist the court in its enquiries, including making full disclosure of all relevant facts. 21. The two incidents of fighting with neighbours and subsequent convictions for common assault are not in dispute. The wife has also admitted locking out her husband and father-in-law and buring her father-in-law's photograph. The wife also admitted in evidence that she stayed away from the matrimonial home on two nights during the marriage, although in her Answer she admitted going to mainland China for a week in September 1975. I also accept the husband's evidence of what has been referred to as the wife's "nocturnal activities". The husband I thought an honest witness. 22. Having regard to the whole of the evidence and having also considered the explanations of the wife I am satisfied that her cumulative conduct was such that the husband ought not to be called upon to endure it. I grant the husband a decree nisi of divorce. As the behaviour of the wife may have stemmed from some mental disturbance, no blame is to be attributed to her.
Representation: Mr. B. D'Almada, assigned by D.L.A. for the Petitioner. Respondent in Person. HIGH COURT DIVORCE JURISDICTION SUIT No. 14 of 1978 Date of Trial : 5th & 6th of December, 1979. Date when Judgment was delivered: 19th December, 1979. ORDER : A decree nisi of divorce granted to the Petitioner. Cases and Authorities cited in Judgment
Cases cited by Petitioner's Counsel in the submission
Representation: Mr. B. D'Almada, assigned by D.L.A. for the Petitioner. Respondent in Person. (1) [1972] 1 All E.R. 587 at 591 (2) [1975] 2 All E.R. at 987 |