Yung Ho v. Tsang Wing Tong
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DCCJ 7546/1971 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON CIVIL JURISDICTION ACTION NO. 7546 of 1971 ____________ BETWEEN
____________ Coram: His Hon Judge D.A. Davies in Court Date of Judgment: 30th June 1972 JUDGMENT 1. In this action, the plaintiff claims from the defendant maintenance for herself, and custody and maintenance of the children of the marriage of the plaintiff and the defendant. 2. The defendant opposed the claim in toto, and counter-claims that he should be granted custody of the two children of the marriage. 3. There is no dispute that the parties were lawfully married in Hong Kong on 23rd September 1967, and thereafter cohabited together. 4. The issue of this marriage are two children. TSANG Chun-bong, male, born on 11th August 1968, and TSANG Siu-ling, female, born on 31st August 1970. 5. It is noteworthy that neither party has included any prayer for a n0n-cohabitation clause. I assume from this omission that ultimately the parties contemplate divorce proceedings and advisedly do not desire a non-cohabitation order, which would effectively prevent the further running of any period of desertion, and would thus preclude the defendant from succeeding upon an allegation of desertion and the plaintiff from maintaining an allegation of constructive desertion, as grounds for divorce. 6. It is also apparent from the tenor of the evidence, that the plaintiff is not pressing very hard her claim for maintenance for herself. At present she is working and says that earns between $400.00 and $500.00 per month. This has not been challenged. The defendant has said in evidence that he at present earns $710.00 per month and this also is unchallenged. 7. The basic concern of both parties is very clearly the issue ofcustody of the children. The plaintiff’s claim is based upon the allegation that the defendant has been guilty of persistent cruelty towards her. 8. This allegation is of course highly relevant where an application is being made for a Separation Order, but where as in the present case, the main issue is custody of the children, such an allegation is of limited relevance, being confined only to the question of the fitness of the respective parents to have custody of the children. To this extent, and as the parties are at present, and have been since 31st May 1971, living apart, I am somewhat surprised that they did not decide to proceed under the Infants’ Custody Ordinance with a straight-forward application on the merits for custody of the children. In this way, the lengthy evidence and much of the mud-alinging which has characterized the present proceedings, might well have been avoided. 9. I must, however, deal with this allegation of persistent cruelty, since there is before me the plaintiff’s application for maintenance for herself and it is also a pre-requisite to the making of any order under the Separation and Maintenance Orders Ordinance, including any order for custody of children. 10. My first observation is that I am strongly of the opinion that the plaintiff and the defendant are temperamentally unsuited to one another. Each made a mistake in deciding to marry the other. 11. Both the plaintiff’s mother and the defendant’s father confirm that the marriage has almost ab initio been plagued by bickering and complaints on both sides. 12. I have a firm impression that each party is of very independent mind, and also that each party could be extremely tiresome and difficult if matters ran contrary to his or her liking. I am sure that this has been a marriage where there was very little give and take and very little tolerance by either party of the idiosyncrasies and weaknesses of the other. 13. I can say without hesitation that I have no doubt thatthere was a violent incident on at least one occasion. That was the night of 30th/31st May 1971, and I have no doubt also that the plaintiff did suffer minor injuries on that occasion at the hands of the defendant. The defendant’s story of the plaintiff having fallen down, and he (defendant) having grabbed her to break the fall, is most unconvincing. It must have been obvious to all who heard and saw his giving this evidence that he was lying in order to exculpate himself. 14. The only other specific incident testified to by the plaintiff was that of 6th January 1971, but as she on her own admission declined to be medically examined on that occasion, we have only her word in support of the allegation that she suffered physically as a result. 15. Miss CHEUNG has submitted on defendant’s behalf that even if one were to accept the plaintiff’s evidence, it does not disclose “persistent cruelty” because it is confined to two isolated incidents only. 16. It is a well-made point, and I would be inclined to agree were it not for the fact that the plaintiff has also stated in evidence that there were many other beatings, too numerous to mention. There is no necessity for her to spell out a large number of specific instances of violence in order to establish a persistent course of conduct on the part of the defendant. Ifher evidence is credible, I must clearly regard it in toto. 17. What I am much more concerned with is the question is whether the violence offered by defendant to plaintiff was provoked or unprovoked. 18. In order to rank as cruelty at all, it must be unprovoked, or at least out of proportion to any provocation. A wife who drives her husband to lose his temper through nagging cannot be heard to complain if on occasion the husband gives way to loss of control. 19. The process of this transformation was no doubt a gradual case. It is the plaintiff’s evidence, and I believe it, that the first stage of the process was the defendant’s decision to give up the fist they lived in together, in favour of going to live with his parents. The defendant has explained (or perhaps I should say “excused”) this decision by saying that he simply could not afford tomaintain a matrimonial home of his own, and on grounds of economy alone it was necessary for him and the plaintiff to accept his parents hospitality. Despite the fact that, traditionally, it may have been considered highly desirable that married couples reside with in-laws, thepresent-day local residents of Hong Kong are no different from their counter-parts in other parts of the world, and are rapidly recognising the difficulties of living with in-laws, however kind and understanding the latter may be. 20. This was the first major blow to the marriage, and one from which it never recovered. It isnot my function to ecide whether it was really necessary for the parties to go and live with the defenant’s parents; be that as it may, the plaintiff did not want to do so, and, as one half of the partnership, her wishes were entitled to respect. It is clear that to this day, she has never forgiven defendant nor giving up their matrimonial home. 21. After that, she began to disapprove of her husband’s extra-marital entertainments, principlally gambling, and indeed the defendant may be telling the truth when he allees that sometimes she accused him of gambling when he had merely returned home a little late, directly from work. 22. She, on the other hand, says that if he lost at gambling he returned in a foul temper. This may well also be true. 23. All the ingredients of a broken marriage slowly but surely emerged. 24. As I earlier mentioned, neither party was tolerant towards the other, and each incident left a feeling of grievance behind it on both sides, as often happens between couples who are not temperamentally suited to each other. 25. It would however in my view be both naïve and patently unjust to label the conduct of the defendant as a course of persistent cruelty. Rather I would describe it as the reaction of a man disillusioned and exasperated, not only with his wife but probably also with himself for having made the initial mistake of entering into an unsuitable marriage. Violence per se is not enough: the plaintiff must satisfy me that the defendant pursued a course of conduct calculated to cause her mental orphysical injury. 26. This her evidence fails to do, and accordingly I do not find the plaintiff’s allegations of persistent cruelty proved. It is my view of the law that having regard to this finding, it is not open to me toentertain the plaintiff’s claim for maintenance for herself. She is of course entitled tocontinue living apart from the defendant if she wishes to do so and the consequences of that decision will be a matter for another Court if divorce proceedings ultimately take place. She may well consider that this is the most desirable thing to do, and having regard to the temperamental differences between the parties, I would hesitate to disagree with her. I dismiss the plaintiff’s claim for personal maintenance. 27. I now proceed to consider the question of custody of the children. It is I trust clear that my view is that the plaintiff’s failure to prove persistent cruelty has defeated her claim for maintenance for herself. 28. Persistent cruelty is the only matrimonial offence alleged against the defendant. The plaintiff has elected to proceed under the Separation and Maintenance Orders Ordinance. 29. It is my considered view that it is essential for the plaintiff to prove at least one of the matrimonial offences set out in question 3 of that Ordinance before she becomes entitled to any of the orders specified in Section 5, and this includes an order for (illegible). 30. Previously, I had occasion to mention the Infants’ Custody Ordinance. Has the plaintiff applied under that Ordinance (and it is of course still open to her to do so, in the appropriate fashion), the only question for the Court would have been that of what order would be in the best interests of the children. On such an application, on the evidence now before me, the plaintiff could make out a substantial case. In this proceeding, however, the plaintiff’s failure to prove a matrimonial offence. Under Section 3 of the Separation and Maintenance Orders Ordinance bars her from any relief under that Ordinance, and in these proceedings. 31. Most reluctantly, I am obliged to dismiss the present application with costs against the plaintiff, to be taxed on Scale IV. I grant a certificate for Counsel. 32. I further order that the solicitor’s costs of both parties shall be taxed in accordance with the Legal Aid Regulations, on the samel scale. 33. Asa closing comment in these proceedings, I would repeat tha the plaintiff might well find it worthwhile to lodge an application under the Infants’ Custody ordinance, bearing in mind the age of her two children, and the other relevant evidence which has, perhaps, misguidedly, been put before me in these proceedings. In the event of such an application being lodged, I think it desirable that the hearing should be before me, in view of the fact that I am now fully aware of the circumstances in which the parties are living apart, the home conditions of each, and other factors which vitally affect the interests of the two children.
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