Lee Mok Ying v. Lee Wing

HCMC000025/1977

IN THE HIGH COURT OF JUSTICE

Divorce Jurisdiction

No. 25 of 1977

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Coram: Addison, J.

Date of Judgment: 29th November, 1978

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JUDGMENT

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1. In this suit the wife seeks a dissolution of her marriage on the ground of irretrievable breakdown due to the respondent's behaviour being such that she cannot reasonably be expected to live with him.

2. The husband by his answer denies that the marriage has broken down irretrievably and he denies that he has behaved in the manner alleged by the wife in her petition.

3. The parties were married in China on the 1st January, 1955. The respondent came alone to Hong Kong in 1957 followed by his wife in 1960. They lived together until the 26th December, 1975 when she left him for good. She told me she has no intention of returning to live with the respondent notwithstanding they have been married twenty-three years and notwithstanding the respondent's entreaties during the hearing of this suit that she returns to him.

4. There are four children of the marriage. The oldest, who was born in China is aged 20 years. The others, all male, are aged 16, 13 and 9 years.

5. She also seeks the custody of the youngest son which the respondent does not oppose because, as he says, it will be company for her where she is now living in Pak Tai Street, Tokwawan. This address is very close to where the respondent lives. He is still hoping, whatever the outcome of these proceedings, that she will return so that the family can be re-united.

6. She now works in a factory earning $25 a day. An entirely new world has opened up to her for previously when she resided with her husband she was completely occupied by looking after the family.

7. The matrimonial home comprised one bedroom and a small sitting room which was also used as a dining room. Undoubtedly those cramped conditions were not suitable for the family and probably explains why she easily got upset if the children did not do exactly what she wanted. She claimed she was much more submissive in her relations with the respondent.

8. She is fully aware that by leaving her husband she forfeits the close companionship of her children, of whom she is fond, but having weighed all this in her mind she is prepared to forego their society in order to be free of her husband. This she regards as imperative for her own well-being.

9. I noticed that in her reconciliation statement she had not been given the names and addresses of persons who might assist in a reconciliation. At the hearing, I accordingly offered to adjourn the trial so that she could consult qualified persons if she thought that might help. She declined the offer.

10. I am therefore quite satisfied the marriage has broken down irretrievably. She has now lived almost three years on her own and I have no reason whatever to believe that she does not know her own mind.

11. I cannot dissolve this marriage unless I am satisfied that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him.

12. This question is one of fact and I adopt the test laid down by Dunn, J. in Livingstone-Stallard v. Livingstone-Stallard [1974] 3 W.L.R. 302 at page 307 which was later approved by Roskill, L.J. in O'Neil v. O'Neil [1975] 1 W.L.R. 1118 at page 1125.

13. Dunn, J. said,

"Coming back to my analogy of a direction to a jury, I ask myself the question: Would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and the personalities of the parties?"

14. Rayden on Divorce 12th Edition at page 219 puts the matter in this way:

"In all these cases the totality of the evidence of the matrimonial history must be considered and the conclusion will depend on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view, after a consideration of any excuse or explanation which this respondent might have in the circumstances, the conduct is such that this petitioner ought not to be called upon to endure it. It is undesirable, if not impossible, to create by judicial pronouncements certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to behaviour in such a way by the respondent that the petitioner cannot reasonably be expected to live with him: every case depends on its own facts."

15. It is clear also that the behaviour concerned in para. (b) means behaviour other than conduct leading up to desertion in para. (c). See Stringfellow v. Stringfellow [1976] 1 W.L.R. 645 (C.A.)

16. Nor is the matter to be determined by the language of the actual wedding vows. As Cairns, L.J. said in O'Neil's case:

"As to whether the judge applied the right test under this paragraph, in so far as he quoted the words of the marriage service that a husband or wife was taken for better or for worse, in my opinion, he was in error. These matters are to be judged not by the language of the Book of Common Prayer but by the language of the statute. What exactly is to be understood by his observation that the test was objective and not subjective may be open to some question. The right test is, in my opinion accurately stated in Rayden on Divorce 12th Edition (1974) Vol. 1, p. 216.

If authority is required for that proposition it is to be found in the speech of Lord Reid in Gollins v. Gollins [1964] A.C. 644, 660:

17. When one comes to consider the history of this marriage the one fact which sticks out further than any other is that it lasted for 20 years. This is no small matter. Obviously the parties knew each other in and out: each was acquainted with the other's short-comings and attributes and in sensitive areas they knew where to tread warily.

18. One complaint levied by the wife is the overall attitude of her husband towards her. She said he always looked down on her. He is 57 years of age and she is 9 years younger. She said that he once remarked if he left her alone in Tsimshatsui she would not be able to find her way home. She also added that, on occasions, he would tell her words to the effect that if it were not for him she would have nothing in the world, for without him, she was all alone in Hong Kong.

19. Added to this she also said that he sometimes called her "duck soup" which, as I understand from the evidence, meant she was completely under his thumb and that he could do whatever he liked towards her.

20. Apparently he liked her to remember she was completely in his power.

21. I do not think it was his verbal domination over her which led to the breakdown of the marriage but his demonstration of a superior attitude whereby he assaulted her and treated her as if she had no personality of her own. She could and probably did cope with his male chauvinism and subjection of her as a wife, but it was when he caused her to fear for her physical safety and sought to subject her to his irrational behaviour over everyday things that she decided she could endure things no longer.

22. She referred to an incident which occurred about 5 years ago when they were in bed, though the respondent said it took place earlier than that. It concerned some cloth which the respondent had bought for his uncle in China. He wanted her to send it by mail. The cost of doing so was only $3. She asked him for the money. He was annoyed at being asked to pay. He thought the amount so little that she should not have to ask him for it. A row ensued and he jumped down from the upper bunk and assaulted her. She went into the sitting room where he beat her on the face with his fists. To avoid him she hid in a neighbour's room in the flat and when her husband found her he hit her on the forehead with the heel of a high-heel shoe he happened to pick up. He also punched her again. According to the wife they were separated by the neighbours to whom the respondent said that as she was his wife he could do whatever he liked to her. She said that for three hours, until 4 a.m., he harangued her in bed. His version was quite different. He claimed she nagged him for the money for hours and at a time when he wanted to go to sleep in order to be fresh for work the next day. He then told her to stop. There was no violence.

23. It is significant that in his answer he alleged she ran into a sub-tenant's room and that he slapped her on the side of the face with the heel of his shoe in an attempt to quieten her.

24. I accept her version of the facts. I also accept that he had beaten her on occasions prior to this, though the respondent denied doing so.

25. According to her evidence she said he had assaulted her on 10 occasions throughout the marriage though later she thought that was an underestimate. I see no reason to disbelieve her.

26. The cloth incident slipped into the background of their married life because they continued to live together.

27. She referred also to an episode which happened on the 6th October 1975. She could not recall why he then assaulted her. According to the respondent this was the only time he assaulted her. He said she had for several months previously not spoken to him and he was annoyed at this. He claimed she was intending to leave him and in bed that night he told her she should not heed the advice of others and that she should stay at home most of the time and not go out so frequently. According to the husband when he told her this she began nagging him again and she hit him. He then got out of bed and slapped her twice on the face as a result of which she dashed off and got the stick to the mop and hit him with it.

28. The wife's version differed. She said he assaulted her just because he felt like doing so. She could not recall the reason. She claimed it was her husband who had the stick to the mop and that she wrested this from him and hit him in return. She rushed from the house and went to Kowloon City Police Station. The police summoned him to the Police Station and they were both sent to Queen Elizabeth Hospital for a medical examination. Medical reports were produced in evidence. She had abrasions to her upper and lower lips. He had abrasions over the anterior chest wall.

29. I believed the respondent when he said she had not been speaking to him for a while though I do not think it was for as long as he said. I am satisfied that he, being somewhat old-fashioned in outlook was seeking to restrain her from going out and meeting others: in short he was curtailing her freedom. I find that they had reached a stage of incompatibility where the only way the respondent felt he could keep her subject to his will was to restrict her activities and insist she stayed at home. These frustrations that he felt led him to assault her and she assaulted him out of self-protection.

30. There was no evidence before me which would suggest she led anything but a modest, plain life.

31. I think it significant she went to the police station to report the matter. After their examination at the hospital they returned home together.

32. She left home for the first in her married life a month later when she took up the job of an amah. In itself this is astonishing. She had never worked before outside the home and she had always cared for the children. She did this job for only four days when the respondent, accompanied by a relative, persuaded her to return home.

33. She said, and I believed her evidence, that she took this job because she could no longer stand him assaulting her.

34. Things did not turn out as she hoped. Ten days later he told her that in future he would use a hammer and not fists and not even the neighbours would be able to separate them. She found it unpleasant at home.

35. There were snide remarks. The wife did not want to go into all the ins and outs of her marriage but she did tell me that he told her he saw no reason why he, being older than she, should have to support her. He bullied her over the way she looked after the children. Though both she and her husband were prone at times to exaggerate their own case I found her evidence sufficiently reliable to accept.

36. The facts show that the respondent is a good father. He is concerned for the children. He felt she should cook lunch for them rather than they ate from a stall. He considered she was not doing things the way he wanted them done. He did not want any outsiders to interfere.

37. A further dispute arose ten days after she returned. He accused her of having an easy life and of not helping him. She, it seems, had made up her mind to leave an wanted to take a cupboard with her which she had bought with her money. He would not let her and threatened that if she did he would chop her to death. He got hold of the chopper and chased her inside the flat. The three children were present and tried to stop him. She ran into the street to find a police officer but being unable to do so she returned home 20 minutes or so later to find the respondent asleep.

38. The respondent admits threatening the petitioner with a chopper. He said he discovered she had obtained a room else where and was going to move out. According to him she told him she had found another man. I do not believe she told him there was another man or that she had one. The respondent also alleged she told him that before she left she would destroy everything and take away the cupboard. I do not believe his evidence that she threatened to destroy the home. She was a considerate mother and there seems no reason why she should want to imperil the children or their comfort. I find that she wanted to take away the cupboard and that it was the realisation of her intended departure alone which precipitated the respondent in threatening her with a chopper.

39. I do not propose going into the evidence relating to the visits he made to her new address and place of work hoping to get her to go back again.

40. Looking at the history of the marriage and all the circumstances I think there were times when the petitioner gave as good as she got. She would not have endured things for so many years had she not been able to fend for herself. But I am satisfied she was afraid for her safety and wanted equal and fair companionship with her husband as well as consideration. This she did not get and his conduct was not that which she should reasonably be expected to tolerate. I do not think he intended to use the chopper but it was indicative of his overpowering attitude towards her.

41. I find there were rows once every several months and that he assaulted her on and off throughout the marriage. I accept he called her "duck soup" and assaulted her on the specific occasions she has alleged. She came back hoping for better things but was quickly disillusioned and the final straw after his threats to use a hammer was the actual threat with a chopper. She then realised that to stay with him forever would be an abandonment of her own self.

42. I find she ultimately moved out because she was predominantly scared of him.

43. In cross-examination she made a reply which had the ring of truth and implied so much. She was asked about the financial side of the marriage. She answered:

"Money was not what I wanted. It's nothing to do with money. He assaulted me whenever he liked and was atrocious to me."

44. I gathered from this answer that what she really was saying was that she was not given in marriage what she came to need most - respect, love and caring. Instead she was bullied and assaulted by the respondent when she did not do what he wanted.

45. She put the matter neatly in her evidence when she said:

"I never minded being scolded. That is one thing. Being assaulted is another."

46. Allowing for exaggeration on her part and weighing all the evidence and using the test laid down by Dunn, J. I ask myself the question: Would any right-thinking person come to the conclusion that the respondent in this case behaved in such a way that the petitioner cannot reasonably be expected to live with him taking into account the whole of the circumstances and the characters and the personalities of the parties? In my judgment the answer is in the affirmative. Accordingly there will be a decree nisi in this suit.

Representation: