Kwok Lai King Wah v. Kwok Che Kin

HCMC000106/1969

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 106 OF 1969

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Coram: Briggs J. in Court.

Date of Judgment: 6th July, 1970.

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JUDGMENT

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1. This is a wife's petition praying for a declaration that the marriage celebrated between herself and the respondent be declared null and void and, in the alternative, for a divorce on the ground of cruelty. She also asks for the custody of the two children of the family and for maintenance for them. In his answer the respondent asks the court to reject the prayer of the petitioner and denies that he has been guilty of cruelty. He also asks for the custody of the children. The petitioner was represented: the respondent appeared in person. The petitioner is a factory worker; the respondent is the sole proprietor of a money changer's business.

2. The parties went through a ceremony of marriage on 12th January, 1956 in Hong Kong and lived together in various addresses and finally at an address in Shaukiwan where they still live.

3. There are two children of the family one, a son, born on 18th December, 1957 and the other, a daughter born on 20th August, 1959. The parties, their children and the mother of the petitioner all live together.

4. The petitioner alleged in her petition that the respondent had married a woman in China in 1947 and that he was still legally married to her when he went through the ceremony of marriage with her in 1956. In his answer the respondent denied this. But when giving evidence he was confronted with a deed of separation signed before the Causeway Bay Kai Fong Association signed by him, which recites that he was married to one Kwong Heung in China in 1947. The date of the agreement is 1964. In answer to questions put from the Bench he admitted that he had been married by Chinese customary rites in China in the year 1947 to the woman referred to in the deed. Apparently, hearing of his marriage to the petitioner, the said Kwong Heung came to Hong Kong and a separation was effected in 1964 as I have said above. This of course was after the celebration of the ceremony of marriage with the petitioner.

5. Mr. Fok for the petitioner did not seek to rely upon the first part of the prayer in the petition. He was unable to produce any concrete evidence that the previous union between the respondent and Kwong Heung was a legal marriage. This is not surprising. And though the respondent in his evidence admitted that he had been "married" I do not think that on that bare assertion it would be safe to grant a decree, the consequence of which would affect the status of the two children of the family.

6. The petitioner stated that the marriage was a success at first. But she said that in the year following the birth of the first child in 1957, the respondent had only had sexual intercourse with her once. Since the birth of the second child there had been no sexual intercourse at all.

7. She said that she had repeatedly complained of this state of affairs to her husband: she had asked him many times to have intercourse but he refused and appeared to be quite uninterested. She said that on two occasions at least she had manually stimulated him in order to achieve her object but without results. In cross-examination she said that the respondent had on a single occasion in 1968 caressed her but that he was unable to penetrate her.

8. This state of affairs has, she said, caused her considerable distress. She complains of depression, nervousness and insomnia. She has had to attend a doctor frequently.

9. In his answer the respondent said that "the petitioner has refused normal sexual intercourse with me since 1960 because of physical weakness". In answer to questions put by the court he said he meant his own physical weakness and not that of his wife. He admits therefore that there has been no sexual intercourse and that the fault is his. His answer contains several statements which are not true and which he contradicted when giving evidence: for example he said in his answer that he had no relationship at all with Kwong Heung but in the witness box he admitted that he had gone through a form of marriage with her.

10. I accepted the evidence of the petitioner which was not seriously contradicted by the respondent. In my view she has proved the allegation of cruelty. It is obvious that a course of conduct such as she describes and persisted in for such a long time has affected her health and it is reasonable to suppose that her health will be seriously impaired if the present situation is not changed. I therefore pronounced a decree in her favour.

11. Both parties ask for the custody of the children. I have decided that it is in the best interests of all concerned if custody is given to the father, the respondent.

12. The elder child is a bcarder at school: the younger is a day pupil at another school. Both parents work all day and the mother of the petitioner looks after the children when they are at home. The respondents has looked after and maintained the children ever since their birth providing all the money for this. The children have been in their present home for the last six years. The petitioner will have to move out and find alternative accommodation. She has made no arrangements for this at present.

13. There will be liberty to the petitioner to apply in respect of custody and maintenance of the children.

Representation:

Judgment reduced in writing.

Paul Fok (David Burgin & Co.) assigned for the Petitioner.

Respondent in person.