Lo Shin (or Sin) Mei v. Cheung (or Chang) Kwai Wah

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 2229 OF 1972

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Between

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Coram: A. Garcia, D.J.

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JUDGMENT

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1. The Plaintiff sues under the Separation and Maintenance Orders Ordinance, Cap.16, for the legal custody of two of her children, a son, CHANG Cheuk-kwan, born on 21^st November, 1963, and a daughter, CHANG Wai-ping, born on 25^th January, 1965, and for maintenance for the said two children, and herself, and for reasonable access to her three other children now in the custody of the Defendnat.

2. The Defendant denies that he is married to the Plaintiff as alleged in her Statement of Claim and states that they had been merely cohabiting with each other since 1954 till the 6^th day of October, 1970, when the Plaintiff left him. In her evidence, the Plaintiff describes the wedding ceremony as being one of a casual nature, since both her parents and those of the defendant were in Mainland China at that time but at the same time states that she was dressed in a traditional Chinese bridal gown on the day of the ceremony, and that there was a feast to celebrate the occasion held at the Jewellers Guild and to which over a hundred guests were invited. The Plaintiff in support of her statements has produced a photograph which shows the Defendant standing next to her and in which she is depicted as being dressed in a Chinese wedding gown. The Defendant does not dispute the authenticity of this photograph nor has he made any reference to it either in his evidence or in his cross-examination of the Plaintiff. The Plaintiff further states that the concomitants of the Chinese customary marriage, that is, the three books (documents) and six rites or ceremonials were used at the wedding ceremony and that these ‘documents’ were kept by the Defendant. She testified that she has known the Defendant one or two years prior to the marriage and that on a mid-Autumn Festival Day she does not specify in which year, nor does she remember, the Defendant gave her an engagement ring, and that same ring was used at the wedding ceremony. It seems to me that after considering what the three books and six rites consist of and of what they entail, the Plaintiff has absolutely no idea whatsoever of their significance and content, and these documents and rites never entered into the wedding ceremony described by her. According to Dyer Ball’s “Things Chinese” (1925 Edn) in the article “Betrothal”, the three books or documents are:

(1)        the Contract of Marriage.

(2)        The Receipt of Betrothal Money, and

(3)        The Deed of Delivery of the Bride,

whilst the six rites or ceremonies are:

(a)   the Small Presents, which consist of tea, cakes, betel nuts and money given by the future husband’s family to the family of the future wife,

(b)   the Inquiry for the name of the Bride,

(c)       Payment of the Betrothal Money,

(d)   the Request to give the day of the wedding,

(e)   the Sending of a Goose, (to the bride), and

(f)    the Fetching of the Bride.

In the same article the following appears:

“Under these circumstances there are, of course, no engagement rings, nor for that matter is a wedding ring worn by Chinese ladies when married.”

I have referred to these extracts only for the purpose of indicating that it is absurd for the Plaintiff to state in her evidence that the three documents and six rites have been ‘kept’ by the Defendant. The Plaintiff’s aunt, Lo Yee, who also gave evidence on her behalf, states that she officiated at the wedding ceremony and that the three books were delivered and the six rites were performed. Again, it seems to me that this witness, like the Plaintiff, has no idea of what is involved in the three books and six rites, but what she did say was that she was present at the wedding feast held in the Jewellers Guild, together with other relatives of the Plaintiff. The Defendant, when cross-examined on the matter of the marriage, replied as follows:

“Q. About 17 years ago when you got married to Plaintiff you held your wedding feast in Jewellery Merchants Association?

A. I cohabited with Plaintiff for three years. Later when she was pregnant on her request I invited several tables of friends to have dinner together.

Q. When did you say this feast took place?

A. In November 1956.

Q. What happened during the feast?

A. Nothing special happened. Feast was held at her request for the sake of keeping face.

Q. Was the feast held to give publicity to your marriage?

A. Yes. That was the purpose.”

Again, at the wedding ceremony, the Plaintiff says she wore a Chinese bridal gown and both parties paid respects to the Defendant’s apprentice master. In view of all this evidence. I have no doubt that the ceremony referred to was a wedding ceremony between the Plaintiff and the Defendant but it is not one which was performed in accordance with Chinese law and custom. This much has been conceded by Mr. Woo after consultations were made with an expert in Chinese law during the adjournment. Mr. Woo, however, submits that the ceremony complies with the requirements of the Marriage Reform Ordinance, Cap. 178, and he asks me to find that such a marriage is a modern marriage as defined in Section 2 of that Ordinance. The requirements of a modern marriage according to the said Ordinance would appear to be:

(1)   the ceremony must be an open one,

(2)   there must be 2 or more witnesses present,

(3)   the parties must be not less than 16 years of age at the time of the marriage, and

(4)   the parties at the time of the marriage must be single.

3. It appears that both parties were over the age of 16 years on the year in which the ceremony took place, i.e. 1954, and no allegation has been made by either party that prior to the ceremony in 1954 that either of them had been married to a third party. I am of the opinion that the requirements of a modern marriage as defined in the said Ordinance had been complied with by the parties hereto. I would also refer to the case of Au Hung Fat vs. Lam Lai Ha (1959) H.K.L.R. at 527, where the headnote to the case of Aronegary v. Vaigalie, 6 A.C. 364, was cited as follows:

“According to the law of Ceylon, as in England, where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage. Where it is proved that they have gone through a form of marriage, and thereby shewn an intention to be married, held, that those who claim by virtue of the marriage are not bound to prove that all necessary ceremonies have been performed.”

In the same case, part of the headnote of Spivack v. Spivack (1930) All E.R. 133 was also cited as follows:

“The proper principle as to proof of marriage in civil suits, where the customary evidence of a valid marriage is not forthcoming or is not readily available, is that set out in 19 Halsbury’s Laws of England (3rd Edn.) 813, namely: ‘Where there is evidence of a ceremony of marriage having been gone through, followed by the cohabitation of the parties, everything necessary for the validity of the marriage will be presumed, in the absence of decisive evidence to the contrary. When this is done, the burden of disproof is on those denying the validity of the marriage.’”

It was held in Au Hung Fat’s case that the presumption of the validity of a marriage may be invoked to establish that the provisions of the Ordinance (Marriage Ordinance) have been complied with, and to establish that the marriage was duly celebrated according to the provisions of the Ordinance, that is according to the personal law and religion of the parties, or in the accordance with the laws and customs of China, in the terms of subsection 39(1) of the Marriage Ordinance and Section 2(a) of the Separation and Maintenance Orders Ordinance, for the purpose of applications under the Separation and Maintenance Orders Ordinance.

4. The Defendant has not produced any decisive, nor indeed, any evidence to rebut the presumption of the validity of the marriage between him and the Plaintiff, and in view of the above decisions and also section 8 of the Marriage Reform Ordinance, Cap. 178, I hold that under Section 2 of the Separation and Maintenance Orders Ordinance, Cap. 16 and for the purpose of applications made thereunder, the Plaintiff is the wife of the Defendant.

5. It is also the Defendant’s allegation that sometime in 1969, the Plaintiff flirted with a colleague of his called Yip Siu tong in his presence causing him some disgrace vis-à-vis his other colleagues and that despite his warnings to her to cease behaving in this manner she continued to do so with the result that there were frequent quarrels between them. This allegation is denied by the Plaintiff who says that because of his belief in this allegation, the defendant asked her to leave the matrimonial home. However, the cause of her leaving the matrimonial home is explained by the Defendant in the following manner: sometime in 1970, the Plaintiff began going out late at night much to the displeasure and annoyance of the Defendant and one evening the Plaintiff returned home very late and a quarrel ensued. That same evening, the Plaintiff asked for forgiveness from the Defendant but this was refused, and the following morning, a similar request was ignored by the Defendant, whereupon the Plaintiff expressed a desire to leave the matrimonial home. In view of this request by the Plaintiff, the Defendant telephoned the abovenamed Lo Yee to come and witness the Plaintiff’s departure from the matrimonial home on her own initiative. This matter is referred to in the evidence of Lo Yee who says that sometime in December, 1970 – she is not very clear about the date – she went to the Defendant’s home as a result of a telephone call received from him stating that the Defendant had punched the Plaintiff several times and that the Plaintiff was leaving the matrimonial home. On arrival at the premises, the Plaintiff complained to her that she was assaulted by the Defendant, and again she says that when she arrived at the premises, the Defendant said that he was going to assault the Plaintiff, and the Plaintiff was packing up to leave the flat. This witness appears to be rather confused as to what really happened that day, and it is difficult to imagine that the defendant would suddenly ring her up and tell her that he had punched the Plaintiff several times and ask her to go to his house to see this. Moreover this statement appears in the Plaintiff’s evidence:

“In 1970 Defendant alleged I had a clandestine affair with one of the employees, Yip Siu Tong. There is no truth in this. Because of this he asked me to leave the matrimonial home. He threatened me about September or October, 1970. He said: ‘If you want to live you’d better leave this place, if you want to die, then stay.’ He only threatened me.”

I find that the incident referred to by the Defendant is the same one as that referred to in the plaintiff’s evidence set out above and in paragraph 3(b) of the Plaintiff’s Statement of Claim, and that this incident occurred on the 6^th October, 1970.

I cannot find from her evidence that on that occasion there was any assault on the Plaintiff although there were threats of assault. The Plaintiff left the matrimonial home with some of her belongings on the abovementioned dated and according to her, obtained employment as a domestic servant, in which occupation she was engaged prior to her marriage to the Defendant. However, on the 24^th December, 1970, faced with a desire to see her children and also to return to the matrimonial home to live, she went back to 5 Ezra Lane, 1^st floor, but on arrival was not granted admittance by the Defendant. Apparently a quarrel ensued and this resulted in what the Plaintiff now alleges, and assault on her by the Defendant. Since then, the Plaintiff has not returned to the matrimonial home because she fears that she might be assaulted again by the Defendant. The Defendant has not specifically answered this allegation of assault in his statement of Defence, and does not do so in his evidence, although he denies all allegations of assault. The Plaintiff’s aunt, Lo Yee, has something to say about this alleged assault in her evidence. She states that she accompanied the Plaintiff to see a bone-setter by the name of Ha Kwok Cheung on one occasion and had observed that the former was injured to the extent that she had abrasions to the left side of her body, her left arm and her left ear lobe. I find that therefore there is ample evidence to support the allegation that the Plaintiff was assaulted on 24^th December 1970.

It has been submitted as part of the Plaintiff’s case that the Defendant has been persistently cruel to the Plaintiff by reason of the acts which are mentioned above. It has been said that there is no definition of persistent cruelty but it appears from the case of Collins v. Collins (1964) A.C. 644, that it must be proved beyond reasonable doubt, to constitute cruelty that

(i)                the misconduct must be of a grave and weighty nature,

(ii)              there must be real injury to the health of the complainant or a reasonable apprehension of such injury.

(iii)            injury to the health of the complainant or apprehension of it has been caused by the misconduct of the Defendant,

(iv)            the whole conduct of the Defendant, taking into account its repercussion on the health of the complainant, can properly be described as cruelty in the ordinary sense of that term.

It appears to me that the acts complained of by the Plaintiff against the Defendant, that is the threats uttered by him on 6th October, 1970, and the assault which occurred on 24th December, 1970, fall within the definition of cruelty; although it can not be categorized as “persistent” cruelty. This cruelty may however be considered as one of the factors which led to the Plaintiff’s leaving the matrimonial home. It has been said that to constitute constructive desertion it is not necessary that the husband should have turned his wife out of doors; it is sufficient if by his conduct he has compelled her to leave the house, the question being whether it was his intention to break off matrimonial relations (per Jeune, President; Charter & Charter (1901) 65 J.P. 246). In this case, there is no doubt that the Defendant has expressed his intention to break off the matrimonial relationship with the Defendant most forcefully, he has driven his wife out of the matrimonial home with a threat on her life, he has refused her re-admission to the matrimonial home, and has even up to now stated that he would not have her back, despite the Plaintiff’s expressed desire to return to him. In the event, I hold that the Defendant deserted the Plaintiff as from 6th October, 1970.

Sometime in April, 1971, the parties met in a cafe and there it was agreed that provided the Plaintiff lived apart from the Defendant, she would be paid the sum of $600 per month and that the two children of the marriage, CHANG Cheuk-kwan and CHAN Wai-ping, be placed in her custody. The Defendant’s version of this agreement is that no maintenance should be payable to the Plaintiff herself but that the $600 per month was towards the support of the two children and that such maintenance was subject to variation according to the Defendant’s financial condition at the time of payment. It is stated by the Defendant that he earns the sum of not more than $1200 per month. At the time of the agreement the Defendant had three of the five children in his custody and the Plaintiff had the remaining two. If what he says is true that the $600 covered only the monthly maintenance of the 2 children, then he would only have a sum of $600 per month for himself, and the 3 of the elder children, which does not appear either logical or reasonable. In my view the $600 per month offered under the agreement covered the maintenance for the Plaintiff and the 2 children in her custody and I accept the Plaintiff’s version of the agreement as being the true one. I am unable in the absence of any evidence to the contrary to accept the sum of $2000 alleged by the Plaintiff to be the Defendant’s income and I accept the figure of $1200 per month. However, there does not seem to be any reason to me why the Plaintiff cannot take up employment either in her previous capacity or in another similar capacity since the children are of school age, and no particulars have been given by the Plaintiff as to what sickness (since she alleges this) the children are suffering from.

In the result, I make the orders as prayed for in paragraphs 8(a) and 8(b) of the Statement of Claim. With regard to paragraph 8(c), taking the Plaintiff’s potential earnings, at the lowest level to be $300 per month, I order that the Defendant pay the sum of $200 per month for the maintenance of the Plaintiff, such sum to be paid through the Court Shroff today and thereafter on the 30^th day of each and every month, and with regard to paragraph 8(d), it is ordered that the defendant pay the sum of $300 per month for the support of the two said children in the custody of the Plaintiff, such sum to be paid through the Court Shroff today and thereafter on the 30^th day of each and every month.

The costs of this application are to be taxed under Scale IV and paid by the Defendant under the Legal Aid Scheme.