Cheng Bong Nang v. Cheng Ho Fai

HCMC000034/1974

IN THE SUPREME COURT OF HONG KONG

(DIVORCE JURISDICTION)

ACTION NO. 34 OF 1974

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Coram: Li, J.

Date of Judgment: 30th December, 1974.

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JUDGMENT

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1. This is a petition by a husband for a decree for the dissolution of the marriage on the ground that it is irretrievably broken down because the parties had not cohabited for five years immediately preceding the presentation of the petition. In answer the wife, the respondent, resists this petition on the ground that the marriage is not irretrievably broken down because on a number of occasions the petitioner had indicated that he was still having affection for the wife and the family but was forced to take out this petition.

2. It is common ground between the parties that they were married in 1962. Within the year a child was born to the marriage who is now 11 to 12 years old. Soon after the marriage the petition left for Hong Kong and the wife, the respondent, went to the petitioner's own village to live with the petitioner's mother. By 1967/68 the petitioner acquired a mistress in Hong Kong by whom two more children were born. The respondent stowed away from Mainland in 1973 in the month of July and arrived to find only that the husband, the petitioner, had set up another family or household in Hong Kong. It is the usual case of a woman's love being scorned. The respondent and the petitioner then had a series of discussions and quarrels leading up to this petition.

3. The petitioner's case is this: that within a week or two after the marriage he left for Hong Kong for, one might say, the usual political reason. He was graduated in a university in China. When he came to Hong Kong he found work as a teacher teaching now in the Wellington College and now earns the sum of $1,320 per month, He said that he had never been back to the respondent in China for the last ten years. There is some attempt in his evidence to cast shadow on the fidelity of the respondent. But I find as a fact that this is completely groundless and a cowardly attack on the respondent. During his absence from China, he had only remitted money in support of his late mother. He had completely forgotten his family and has lost all affection for the respondent and the child. Then in 1973, the respondent arrived in Hong Kong with the child and started to bother him vouching revenge in order to harm him, his mistress and his new establishment. He admitted that there had been several meetings between him and the respondent, but each time it was never a re-union of husband and wife but that he was being scolded all the time by the respondent, sometimes throughout the night to the early hours of the morning, first in his cousin's home in Yuen Long and then in Happy Valley in another cousin's home. They had a family meeting with the relatives together with the brother of his mistress at Kingsberg Restaurant in which he was pressed to make a choice between the respondent and his mistress. In order to ease the situation for the time being and to give time for his mistress to keep herself out of harm's way from the respondent, he pretended that he chose the respondent. However, after that meeting he never went to the respondent's place of residence at all. That was some time in August last year. But that did not mean that they had not met because the respondent from time to time went to his school where he taught and made a lot of trouble, causing him great embarrassment and fear that if this continued and he might lose his job as a teacher in the Wellington College. He makes it quite clear that he has lost his affection for his family that he loves his mistress and his children by her and that he is not in a position to support the respondent and son. However, in his petition, he asks that he be given reasonable access to his son by the respondent.

4. The respondent's case is a slightly different story. Her evidence is that while they were training as a teacher in China, they met and fell in love. After their graduation from the Teachers Training College they started to live together in Canton. The respondent found a job as a teacher in a primary school earning some $37 RMP per month and subsidized the petitioner to go through a few years in college so that the latter could obtain a better qualification. When the petitioner graduated from the university and they agreed to be married after serious consideration. Unfortunately, what was intended for the advancement and betterment of the petitioner did not help the situation because the petitioner was forced to leave China for the reason that if he did not he might be sent somewhere else to work and the family would break up anyway. The petitioner left for Hong Kong and the respondent gave up her job as a teacher in Canton and moved down to Po On District near Shum Chun at the border between Hong Kong and China so as to facilitate the petitioner's visits. Up to 1964 the petitioner used to visit the respondent on every possible occasion - at least five to six times a year. On the occasion when their son was born and the respondent was still in a hospital, the petitioner visited her. Since then the petitioner indicated fear that if he went to China again he might not be allowed to leave the country. Thus, for the last ten years, the petitioner did not return to the respondent. Meanwhile, the respondent worked in a farm earning a much reduced salary and looked after her mother-in-law, the petitioner's mother, who was then old and suffered from tuberculosis. In 1972, the petitioner's mother died and the respondent made an attempt to come to Hong Kong to join the petitioner. Eventually, she succeeded by swimming with her son across a river and arrived in Hong Kong. She was received by the petitioner's cousin and accommodated in a makedc living quarter in a factory in Yuen Long. She then found out that the petitioner had a new establishment in Hong Kong. The petitioner went to Yuen Long and stayed with her for three to four weekends leading the normal life of husband and wife. Later on in August, she went over to another cousin of the petitioner's in Happy Valley. The petitioner went again and lived with her for one week. In the course of that week, there was a meeting at the Kingsberg Restaurant in which the petitioner indicated that he would go back to the respondent. However, facts turned out that he never did. She admitted that she had found work between September and April this year, earning about $300 per month, but as a result of the economic recession and of this very petition which she wanted to resist, she was asked to resign because she had to attend to conferences with her lawyers, making applications for Legal Aid. Therefore she has been unemployed since April this year. The petitioner, according to her, had remitted some money to her through the petitioner's mother during the latter's lifetime. After she came to Hong Kong the petitioner still provided for her to the extent of about two to three hundred dollars per month. But there were young child to be educated, to maintain, and she was constantly short of money. She never really wanted to create trouble with the petitioner but when she had no money, obviously she had to go to the petitioner's place of work to obtain household expenses. She admitted there were quarrels on seven to eight occasions between October last year up to date. She said that the petitioner repeatedly indicated to her that the petition would not be brought but for pressure being brought to bear upon the petitioner by the petitioner's mistress and the mistress' brother. The petitioner said he was assaulted and threatened. Hence this petition. She said that she was quite prepared to turn a blind eye to the petitioner's conduct and leave the situation as it stands. She still manifests affection for the petitioner and in fact on a few occasions she even declined the petitioner's offer to give her money because the petitioner was in poor health. Such is the evidence in toto and I am asked now to consider whether, in the circumstances, the marriage has irretrievably broken down.

5. Learned counsel for the respondent frankly conceded quite properly, that for the purposes of this petition, it cannot be argued that the parties had cohabited is any way in the five years prior to the presentation of these proceedings. Sub-section (3) of Section 11A provides that:

"11A(3) For the purposes of this part, a husband and wife shall be treated as living apart unless they are living with each other in the same household."

No reliance is placed upon this sub-section at all but I urged to consider this petition on the provisions of Section 15B which provides:

"15B(1) The respondent to a petition for divorce in which the petitioner alleges any such fact as is mentioned in section 11A(1)(e) may oppose the grant of decree nisi on the ground that the dissolution of the marriage will result in grave financial or other hardship to him and that it would in all circumstances be wrong to dissolve the marriage."

"          (2) Where the grant of a decree nisi is opposed by virtue of this section, then -

6. It is argued also in the Answer to the petition that if the marriage were dissolved, then the respondent would suffer financial and other hardship because at the moment the respondent and her child were accommodated by the petitioner's cousin. If the marriage were dissolved, then the respondent would no longer be the wife of the petitioner and the petitioner's cousin might take a different view. There are authorities to suggest that a pension right or a provident fund or widow's pension for which the wife would be entitled if the husband died, would be regarded as a financial benefit, but a moral obligation on the part of the petitioner's relative appears to my mind to be different. There is no obligation on the part of the petitioner's counsin to support the respondent irrespective of the subsistence of the marriage.

7. I find on these facts that the petitioner has obviously lost his affection for the family and has tried every possible way to be rid of the respondent. The law as it stands has changed in that there is no question of judging the guilt or innocence of the parties for the responsibility of the breaking down. In the words of Lord Justice Davies in the case of Mathias v. Mathias⁽¹⁾:

"..... We do not know the age of Beverley, but no doubt she is a young woman. All three of the parties, the husband, the wife and Beverley, would, in the ordinary course of events, have many years to live; and in my view, unless there were strong reasons to the contrary, it would be ridiculous to keep alive this shell of a marriage and prevent perhaps all three of the parties settling down to a happier life in happier circumstances ....."

I believe the petitioner when he said that he chose to go back to the respondent, it was really a pretence as a way out to avoid an embarrassing situation. The relatives were obviously on the side of the respondent. The fact that he did not return to the respondent shows that he is quite prepared to give up his family and shed his responsibility. When the attitude of the petitioner had been shown by his conduct in not returning to her the respondent behaved in a vindictive manner as she had reason to do so: she had no money, she has lost a husband to another woman. I believe that the quarrel between her and her husband was allowed to develop into damaging school properties where her husband is working. In the circumstances, the marriage has obviously broken down even though it was due to the misconduct on the part of the petitioner. The position is vividly described by what was said by the then President of Probate, Divorce and Admiralty Division in page 173 of Rayden on Divorce:

"If even one of the parties adamantly refuses to consider living with the other again, the Court is in no position to gainsay him or her. The Court cannot say, 'I have seen your wife in the witness-box. She wants your marriage to continue. She seems a most charming and blameless person. I cannot believe that the marriage has really broken down.' The husband has only to reply, 'I'm very sorry; it's not what you think about her that matters, it's what I think. I am not prepared to live with her any more.' He may add for good measure, 'What is more, there is another person with whom I prefer to live.' The Court may think that the husband is behaving wrongly and unreasonably; but how is it to held that the marriage has nevertheless not irretrievably broken down?"

To this, I might add that as the law stands, the marriage bend is no longer as it was in the former days. The change may be for the better or for the worse, but I have to adjudicate this petition on the basis that this Court is only to administer the previsions of law as they stand.

8. In the course of her evidence, the respondent asked whether the Court had sympathy for her or not. I may say that I have the greatest sympathy for her and that she had been gravely wronged by the petitioner. However, in the petitioner's evidence and conduct he obviously has chosen the other woman and prepared to lead a new life with the other woman. To deny this petition would be really to preserve an empty shell of a marriage between the parties. The respondent would then, as expected, continue to pester the petitioner in her status as a wife and the petitioner would continue to ignore the respondent, causing suffering to all concerned. However, I am greatly disturbed by the conduct of the petitioner who has made no arrangement for the support of the respondent and the child. He asks that the custody of the child be given to the respondent but he should be given access. This amounts to asking for the best of both worlds. The respondent is 37 years old now, the child is young. Taking into consideration that life in China is such that there is practically complete equality between men and women, financially, economically and politically, it is expected that she can still find a job and do some work once the dust of this whole trouble has settled down. On the other hand, the mistress of the petitioner, although I had no evidence of her age, would, I gather, be at the working age as well. If the respondent must work to support herself, the respondent must have some form of assistance financially to support the son and herself by the petitioner.

9. For this reason, although I am inclined to grant a Decree, I will not do so at the moment. I will adjourn this case and will not pronounce a Decree Nisi unless and until such time that an agreement be reached as to make financial provisions for the support of the respondent and her child. The parties then can come back to me. Failing an agreement satisfactory to both parties, then application may well be made to come back either to me or to the Registrar.

10. I would like to see that the parties can come to a reasonable arrangement to be approved by me, failing which they will come back and I have to make an order for the provision of the respondent and the son. And for this reason, the cause stands adjourned to a date to be fixed by the Clerk of Court. It will be heard in Chambers in the first instance.

Representation:

(1) 1972) Family Court Law Reports p.287