Lok v. Lok

HCMC000104/1968

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 104 OF 1968

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Coram: Briggs J. in Court.

Date of Judgment: 6th May, 1970.

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JUDGMENT

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1. This is a wife's petition for divorce on the grounds of cruelty. She also prays for the custody of the three children of the family and maintenance for herself and the children.

2. The respondent contests the petition; denies the allegations of cruelty and also requests an order for the custody of the children of the family. There is no cross petition.

3. The parties were married in June 1955. They are domiciled in Hong Kong and are people of humble circumstances. During the marriage they lived together at various addresses and for some time lived in the New Territories. At present the petitioner is a factory worker and the respondent is a foreman of works connected with the Plover Cove scheme.

4. In her petition the petitioner complains of seven separate incidents, which she alleges amount to cruelty. She also placed reliance on a further incident which occurred after the filing of her petition. The first incident occurred in 1958. The second, a year later. The next five incidents occurred within a period of about three weeks, in September - October 1967. And the final incident was in December 1969. The petitioner stated that she left the respondent in October 1967. Her petition is dated 27th September 1968. It was not explained why it has taken up till now for the petition to come to trial.

5. The petitioner gave evidence herself. She described the various incidents of which she complained in detail. She admitted that there had been several quarrels and that the parties had fought. But neither in the petition, nor in the witness box did she complain that she had received any injury. Further, there was no evidence whatsoever that her health has suffered in any way.

6. In the particulars given in the petition of certain of the incidents of which she complains, it is alleged that the respondent "hit" the petitioner. However, she did not go as far as this when giving evidence in the witness box except so far as one incident is concerned. I will deal with that incident later.

7. Her evidence was that the respondent was of a very jealous and suspicious nature and accused her wrongly of associating with other men, both generally and in particular with one of her husband's friends.

8. The respondent admitted that there were quarrels but he said the real bone of contention between the two of them was that the petitioner was always pestering him to allow her to go out to work in a factory in Kowloon, which was at the time virtually impossible when they lived in the New Territories if she was to carry out her duties efficiently as a housewife. Eventually he said he allowed her to go. On or about 26th September, 1967 the parties quarrelled. The versions given by the two parties of the quarrel on this day and on days subsequent up to 19th October when the petitioner left the matrimonial home, differ considerably.

9. The petitioner said that on 26th September the respondent gave her a piece of paper and in effect told her to leave at once. In translation this reads:

"Wife and husband being incompatible in will and way of thought, willing to leave immediately. Henceforth there will be no further interference."

It appears to be addressed to the petitioner: it was written by the respondent and is signed and finger-printed by him.

10. The petitioner did not leave on that occasion and on 29th September the respondent gave the petitioner another piece of paper. In translation this reads:

"If leave, leave immediately. Don't delay I will not ask you to stay. Please leave immediately."

This document was written by the respondent but was signed by both parties.

11. The petitioner said that both of these documents were given to her by the respondent to get her to leave. She considered that his intention was to break up the marriage. She had told him that since he and she were properly married it would be difficult for him to get rid of her and that he could not simply turn her out. She said that these two documents were his answer to that: and she was very angry about the whole matter.

12. Be that as it may she did not leave on 29th September. On 1st October she said the respondent wanted sexual intercourse. She refused him because, as she pointed out, he had in her view already separated from her. It was during this incident that she said the respondent grabbed her by the neck and gave her two blows on her thighs. There was no further evidence of assault. And the court was not told how serious the blows were.

13. The petitioner finally left the respondent on 19th October. I use the word "finally" because she had returned to her father on more than one occasion previously as a result of matrimonial quarrels.

14. The respondent gives a very different version of these events. He said that he was not in a good financial position in 1967 owing to the effect the disturbances had had or was having on his affairs. And in September of that year the petitioner, as she had previously done, pestered him to allow her to go to work in Kowloon. At that time the matrimonial home was in the New Territories The respondent said he was bringing in just enough to maintain the family but that was all. He did not want his wife to go out to a factory in Kowloon because of the children, the youngest of whom was then 6. However, she insisted and he had to give way after what he described as "a rather violent quarrel". He said that she insisted upon him writing the two documents, to which I have already referred. He wrote them at her request and handed them to her at her request. She said that she wanted them to prove to him (or to anyone else) that she had his permission to go and work in Kowloon, to leave the matrimonial home. After the first document was given her she went to her father's place. She returned, however, and after another quarrel was given the second document. She then left, the respondent reluctantly agreeing to this. What he intended by the second document was that if she wanted to go she should go at once.

15. According to the respondent she left at once. This conflicts with the evidence of the petitioner. But I do not think it is material, for there is no doubt that the petitioner did again return to the respondent. She admits a visit on 25th October and he states she came and stayed with him over the Chinese New Year in 1968.

16. Of the two versions of those incidents I prefer that given by the respondent to that given by the petitioner. I think the petitioner exaggerated her evidence. I have the impression that the petitioner is a much stronger character than the respondent though I do not doubt that both parties are strong willed, and obstinate in their views. There is no doubt that the two parties quarrelled and I accept that the basis of differences between them was that the wife wanted to increase the income of the family by working in a factory and the husband wanted her to remain at home and to look after the children and himself.

17. The petitioner in her evidence also said that the respondent threatened her with a chopper or a bread knife when she returned to him on 25th October. Though there were others present at this scene according to the petitioner no corroborative evidence was called. The petitioner does not allege that she was struck only that she was threatened. The respondent denies that this incident happened. I do not think that this incident carries the matter any further. The same applies to the incident after the bringing of the petition.

18. What I have to decide is whether the petitioner has made out a case for cruelty. Paragraph 79 of Rayden on Divorce (10th edition) states "legal cruelty" may be defined as "conduct of such a character as to have caused danger to life, limb or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger". I have already said that there is no evidence before me of any physical consequence of the actions of the respondent to the petitioner. I do not think that the fact that the petitioner returned to her parents' home after several of the incidents is evidence that the conduct of the respondent gave rise to apprehension of injury. I think she left to get her own way i.e. to go out to work in a factory. She never suggested for one moment that she apprehended any danger of injury or to her health.

19. The proper approach to cruelty is was the conduct of the party complained of such a grave and weighty nature as to make cohabitation virtually impossible. In the present case the question is was this respondent cruel to this petitioner in the particular circumstances of their lives. And I am of the opinion that he was not.

20. The petition must therefore be dismissed. However, by reason of section 46(1)(a) of the Matrimonial Causes Ordinance the court may still make an order for the custody and maintenance of the children of the family although the petition is dismissed. There are three children of the family. During the trial the petitioner said despite her request in the petition that she should have custody of all three children, all she now wanted was custody of the eldest and youngest child, and only maintenance for the youngest. However, the respondent asks for custody of all three children.

21. In deciding the future of the children the paramount interest is that of the children themselves. The eldest child will be 15 years old in September 1970. He is now an apprentice to a well known publisher of a newspaper. He is doing very well. He lives with his mother and attends evening school. It is intended that he shall continue to work in the present job and to continue schooling. He contributes towards his living expenses.

22. In my view it is obviously in the best interest of this child that he remains where he is. He has been with his mother since June 1969. I do not think that it would be in his interests to return to his father now. I award custody of the eldest child Lok Wai Leung, to the petitioner. There will be no order as to his maintenance as this is not asked for.

23. The youngest child, a girl, is now nearly 9. Since the petitioner le the matrimonial home she has been under the care of the petitioner. She is now living in a nursery home and attending school. The fees at the nursery home are $95 or thereabouts per month. The petitioner visits the home and the girl goes to her when on holiday from time to time. The respondent told the court that the parties had at one time agreed that he should pay $55 and his wife should pay $40 towards this. There is a conflict of evidence as to how many instalments the respondent has contributed.

24. I think it is in the best interests of the child that the status quo should continue. I am satisfied with the arrangements made for her upbringing. I will award custody of the child, Lok Wai Ling to the petitioner.

25. The respondent earns $360 per month. I think he should pay the petitioner $80 per month maintenance for his child, Lok Wai Ling.

26. There remains the second child, a boy of about 13. He has remained with the respondent all along. He is attending school. Again it is in the best interests of this child that the status quo be preserved. I am satisfied with the arrangements made for his upbringing. And I award custody of Lok Wai Hung to the respondent.

27. The petition is dismissed with costs.

28. Custody of the first and third child to petitioner.

29. Custody of the second child to the respondent.

30. Maintenance at $80 per month to petitioner for the third child.

31. Arrangements for children satisfactory.

32. Costs to be taxed in accordance with Legal Aid Regulations.

Representation:

Peter Chan (W.I. Cheung & Co.) for Petitioner.

Patrick Woo (F. Zimmern & Co.) for Respondent.

Written Judgment read in Court.