Chan Leung Ngan Ho v. Chan Lin Yau

HCMC000025/1974

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 25 OF 1974

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Coram: Li, J.

Date of Judgment: 7th November, 1974 at 4.30 p.m.

Present: Elizabeth F.L. Chua (Helen A. Lo & Co.) for Petitioner

Jacqueline P. Leong (Gunston & Chow) for Respondent

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JUDGMENT

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1. The Petitioner and the Respondent were married according to Chinese rites and customs in Macau in 1958, and they moved to settle in the New Territories in Hong Kong in the year 1960. There is filed before me an affidavit by the Petitioner in the Province of Macau of Portugal to the effect that the marriage was a valid and monogamous one, and this issue has not been contested by the respondent. I assume jurisdiction in this Petition in accordance with the laws of Hong Kong.

2. They started life together as from 1960 in Hong Kong and worked together until 1972 when the Petitioner had to leave the Respondent with her children and set up home away from the matrimonial home. The ground for this Petition is that the marriage had irretrievably broken down for the reason that the Respondent has an ungovernable temper and a violent character. The Petition cites various incidents between 1965 to 1972 when the Respondent treated the Petitioner on various occasions with violence and assaults, accusation of extravagance, and unreasonable demand for sexual intercourse. The Respondent in his Answer denies such allegations and accuses the Petitioner of being addicted to gambling and extravagance, and that she was reluctant to assist the Respondent in his business.

3. There are six children between the ages of 4 and 14 born to this union. The Petitioner, in addition, asks for the custody of these six children, and the Respondent strongly opposes to such Petition and wants custody of the six children to himself.

4. I must confess that when I first read the Petition as well as the Answer, I was not particularly favourably impressed by the Petitioner's case. It is possible, as common knowledge that women in this part of the world may well be addicted to gambling - particularly in mahjong games - and neglect their housewife duties. However, having heard the evidence of the Petitioner and the evidence of the Respondent, I have been forced to come to a completely different conclusion. It is a classic case that when a judge reads the pleadings, he must, of necessity, keep an entirely open mind.

5. The Petitioner's evidence is such that she has been, as she is now, an extremely hardworking woman. She works from, in a normal working day, the hour of 3 o'clock in the morning. Her chores, household or business together, usually take her to 10 or 11 p.m. of the same day. That bit of the evidence, although queried, has not been shaken. On the other hand, the Respondent, as she made out, is a man who cannot be content with routine and hardwork for any length of period. In addition, he has strong sexual demands which involve demands of about 20 times a month, which is more than any average woman can take and particularly a woman burdened with hardwork. She had done her very best to tolerate her husband, hoping that he might improve and hoping that she would see better days, until finally she was put to the test that is beyond endurance, and she had to leave home with her six children. Four of the six children at one time left her and returned to reside with the Respondent. After a matter of a few months, three of them at least went back to her and lived with her. They are now happily settled in schools or boarding schools on the sole support of the Petitioner.

6. The Respondent in his evidence strongly denied that he was a man of any strong sexual demands, and he further denied that he had at any time used violence except once when he caught his wife playing mahjong in a shop when she should be at home assisting him. He said that when he asked the wife to return to assist him, she refused and said nothing, and he slapped her once on the face.

7. Having heard the evidence of both parties, which I shall not repeat I accept the evidence of the wife and reject the evidence of the husband, the Respondent. In the circumstances I feel that the Petitioner, the wife, had every justification to leave her husband with the children in order not to suffer further humiliation in such circumstances. That disposes of the question whether I should grant a Decree Nisi.

8. I now come to the custody of the children. The wife is now setting up business of selling preserved food or cooked food in front of her hut earning about 900 dollars per month. Out of this income, she pays 100 dollars for rent, 200 dollars for one child who is in boarding school. The other children are in day schools supported by her. The expenses for school fees is practically negligible. She is struggling hard to keep the family together. One of the children who could not stand the hardship went over to the Respondent and is still living with the Respondent.

9. On the other hand, the Respondent first started together with his wife as a vegetable seller. He was not content with selling vegetables. He changed his job to become a baker making cakes. He has now changed his occupation to be one of a delivery collie. He lives with his father and brother. While he is working now, he has no time practically to be spared for the children. He has to leave the care of his children to his aged father at the age of 62. The Petitioner, since she left her husband, has in fact an easier life. Indeed, she is struggling hard enough. She has to get up early in the morning of every day, see to that the wares she sells at her home are well prepared, and then by about noon she will be free to take care of the children and to take care of the household chores. Then she starts again to work for a short while in the evening. Anyway she has managed to keep the family together. She earns a monthly income of 900 dollars which compares favourably to that of the Respondent who now alleges that he earns 800 dollars.

10. It is true that in a family the best possible solution is to keep the family together but when father and mother would have to live apart - the only consideration is to which parent should the children go in their best interests. Comparing these two persons, the Petitioner has mapped out the future as to how she would struggle to improve the living conditions of the children. She has assistance from friends and from welfare organizations to put the children to school and see them through. One child has some physical defect or mental defect. She is prepared to send him to a boarding school where specialists' care would be available. As far as the Respondent is concerned, apart from asserting his paternal rights over the children, he has not given any particular plan for the children, except that he will leave them to the care of his father and provide for them. Financially, as it appears, the wife is better off than the husband. In preparation, the wife has mapped out a plan better than that of the husband. Some contention has been made that in the fullest Chinese tradition, sons are better off together with their father. However, in this day and age, one must look at it with a more liberal view. In the light of modern society, the best interests of the children is to be with that parent who exercises better care and is prepared to work harder and prepared to look after them better. In the circumstances, I am of the opinion that the custody of the children should also be given to the Petitioner. There will be a Decree Nisi, and the custody of the children is to be granted to the Petitioner - all the children.

11. The costs of this Petition will be to the Petitioner. I take it that this is a Legal Aid case, isn't it, Miss Chua?

Representation:

Elizabeth F.L. Chua (Helen A. Lo & Co.) for Petitioner

Jacqueline P. Leong (Gunston & Chow) for Respondent