Chan Woo Lai Sheung v. Chan Keong

HCMC000058/1970

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 58 OF 1970

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Coram: Briggs J. in Court.

Date of Judgment: 4th July, 1970.

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JUDGMENT

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1. This is a wife's undefended petition for divorce on the grounds of cruelty and constructive desertion.

2. The parties were married on 8th April, 1960 when the petitioner was 26 and the respondent 36. The petitioner is a metal worker earning 8 dollars and ten cents per day, the respondent is a driver. There are no children of the family. The parties cohabited at an address in Wanchai which the petitioner cannot now remember. The respondent has a criminal record and in 1956 received a sentence of four years' imprisonment for wounding with intent and dangerous driving. This must have been known to the petitioner when she married him. But very soon after the marriage namely, in July 1960, the respondent was convicted of being in possession of dangerous drugs. For this he was sentenced to pay a fine of $150 or to be imprisoned for one month. It is apparent that he paid the fine for rather more than two weeks after that conviction he was again convicted of a like offence and sentenced to six months' imprisonment. He has two subsequent convictions for possession of dangerous drugs, one in 1965 and one in 1966 for which he was imprisoned for six months on each occasion.

3. The petitioner said that the respondent is a drug addict and she had repeatedly begged him to cure himself of the habit, but in vain. Indeed the petition was served on the respondent at the Drug Addiction Treatment Centre, Shek Kwu Chau, where he was undergoing a course of treatment.

4. The petitioner in her evidence stated that the respondent had refused to have sexual intercourse with her since August 1960 which has caused her great distress.

5. On one occasion in 1961 she discovered a small packet of what she took to be heroin or some similar substance in the respondent's bed. She destroyed this, whereupon the respondent flew into a rage and assaulted her. She said that the respondent had provided her with no maintenance or money for the household expenses since February 1965. She had in consequence to find employment in a factory in order to support herself.

6. In November 1965 the petitioner found the strain of living with the respondent in these circumstances too great for her to bear. She was afraid that her health would suffer, so she left him, and went to live with her mother, where she has been ever since. The petitioner said that the conduct of the respondent of which she complained was entirely due to the drug addiction of her husband. She had never condoned that habit and had always tried to get him to break himself of it. In this she had not been successful. There was no evidence before me except for the isolated incident of the assault on the wife in 1961 that the respondent intended to injure the wife. But since the case of Gollins v. Gollins [1964 A.C. 644] an actual or presumed intention to hurt is not a necessary element in cruelty.

7. In Higginson v. Higginson [The Times' Newspaper February 12th, 1960] which was an undefended petition for divorce, a wife was granted a decree for cruelty on the ground of the persistent drug addiction of the husband. In that case it was proved that the health of the wife had seriously deteriorated in consequence of the addiction of the husband.

8. In the case before me no medical practitioner gave evidence as to the state of the petitioner's health. The petitioner said that her health had deteriorated as a result of the refusal of sexual intercourse, but no specific deterioration was mentioned. She also said that the whole conduct of the respondent was such that she was afraid that if she remained with her husband her health would break down.

9. Drug addiction like drunkenness per se is not cruelty so as to entitle a petitioner to a decree. But where drug addiction is accompanied by other conduct and there is a reasonable apprehension of danger to the health of the petitioner it may amount to cruelty.

10. In some countries the fact that a spouse has been imprisoned is in itself a ground for divorce. This is not so in Hong Kong. However, imprisonment and the reasons for that imprisonment are factors which are very relevant to the issue of cruelty.

11. In the present case the respondent is a drug addict and it is reasonable to infer from the evidence before me that that addiction has persisted from a date at least soon after the marriage. In addition, the respondent has been in and out of prison. He has provided no maintenance for the last five years. He has refused sexual intercourse to the petitioner since August 1960 and on one occasion assaulted her. He has paid no attention to her repeated efforts to cure himself of his addiction. In those circumstances the petitioner has clearly made out a case of cruelty. I accept her evidence that she thought that her health was in danger. And I accept that this was a reasonable apprehension in the circumstances. The conduct of the respondent goes far beyond conduct sufficiently grave so as to justify the refusal of the petitioner to cohabit any longer with him. This is not merely the case of a marriage having broken down. The conduct complained of goes much further than this, and can best be described as cruelty.

12. The petitioner also prays for a decree on the ground of constructive desertion. She left her husband in November 1965 not as the result of any particular incident but because she reached the conclusion that she could not remain longer with him without endangering her health. This was after his third conviction for an offence involving drugs.

13. The test of constructive desertion is was the conduct of such a grave and weighty nature as to make cohabitation virtually impossible. The answer to that question in the present case is obviously in the affirmative.

14. There will be a decree nisi on the grounds of cruelty and constructive desertion. I grant leave to make the decree absolute on or after 6th July, 1970.

Representation:

Judgment reduced in writing.

Sakhrani (C.Y. Kwan & Co.) assigned for the Petitioner.