Wong Chan Ying Han, Julia v. Wong Chik Wai
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IN THE SUPREME COURT OF HONG KONG DIVORCE JURISDICTION ACTION NO. 236 OF 1971 ----------------- BETWEEN
----------------- Coram : Briggs J in Court Date: 10 April 1972 ------------------------ J U D G M E N T ------------------------ 1. This is a wife’s petition for divorce on the grounds of adultery. In his answer the husband prays for a decree for restitution of conjugal rights. The parties were married in Hong Kong on July 3, 1968 and there is one child of the family, a son, who was born on February 6, 1969. 2. The wife’s petition alleges that the respondent has frequently committed adultery with one WONG Sook-hei between July 1968 and July 1971. After their marriage, the parties set up their matrimonial home in the house of the respondent’s family. The household consisted of the father of the respondent, his step mother, two half brothers and three half sisters and there was a staff of 5 servants. One of the half sisters of the respondent is WONG Sook-hei, also known as Betty Wrong, she is the woman named in the petition. She is now over seventeen years of age. The respondent is now thirty two. 3. Both the petitioner and the respondent gave evidence on their own behalf, the latter strenuously denying that any adultery had occurred. 4. As evidence of the adultery of the respondent, the petitioner relies on a correspondence between the respondent and the woman named. In addition she gave evidence of certain verbal confessions made to her by the respondent, confessions which were denied by the respondent in the witness box. 5. The woman named travelled to England on June 19, 1971 to further her studies there. The correspondence relied upon by the petitioner consists of letters exchanged between the woman named and the respondent between June 20, 1971 and July 6, 1971. 6. I do not think that the letters written by the woman named can be relied upon as evidence of the respondent’s adultery. She has not been made a party to these proceedings. And the rule is that an unsworn statement amounting to a confession is only evidence against the person making it, not against another person implicated by it. 7. However, the letters of the respondent are of course admissible. These were partly written in a code which the respondent told the court, was invented by him and taught to the woman named. The letters are of an affectionate nature and on some occasions the respondent refers to the woman named as his “wife”: and at least one letter is signed with his name, John, and the words “your husband”. 8. These letters in my opinion do not amount to evidence of an adulterous association. There is nothing in them, despite the use of the words “husband” and “wife”, to show that the respondent and the woman named had committed adultery. They do show that the respondent was infatuated with the woman named. But of themselves they are not proof of adultery. 9. The respondent said in evidence that the petitioner had an association with another man before their marriage. In 1971 he discovered some correspondence from him to his wife. He therefore thought that she had not completely broken off her association with him. With this in mind he induced the woman named to enter into a plot. She was to write over affectionate letters to him, which he would leave about for his wife to discover. In addition his letters to the woman named would be left about in his bedroom before despatch so that the petitioner could read them also. 10. The purpose of all this was to make the petitioner think that the respondent was having an affair with another woman. This would make her jealous and would either result in their breaking off any further association with her former boy friend; or the parties would come to an agreement, she to cease from corresponding with her former boy friend, he to break off the supposed affair with the writer of the letters. 11. I cannot accept this explanation. It is inherently improbable. And the letters themselves do not support it. The letters of the woman named were written on aerogrammes. On the back of each, the writer, the woman named, filled in her correct name and address. The handwriting of the woman named was well known to the petitioner who had assisted her in her studies. The woman named had been a member of the same household as the petitioner. The moment the petitioner saw one of the letters she would be aware of who had written it. She would know it was written by WONG Sook-hei or Betty Wong. She could not have been deceived. I therefore totally reject this part of the evidence of the respondent. 12. As I have said the respondent said he was afraid that the petitioner was still corresponding with her former lover. However I was told that that man had left Hong Kong for America before the parties in this petition were married and had not returned to Hong Kong since. I do not therefore believe that there was any reason for the jealousy of the respondent on this score. 13. In her evidence, the petitioner at first said she had heard rumours of an association between the respondent and the woman named before the woman named left for England on June 19, 1971. Later, in cross-examination, she said she had no indication that the two were intimate until late in June 1971 or in the first days of July 1971 when she found some letters from the woman named in a drawer used by the respondent in their bedroom. 14. When she found these she abstracted them, had photostat copies made of them and showed them to her father. She also said she complained of the conduct of the woman named to the father of the respondent. She said that she and the respondent went through the letters together. And that there was a discussion between the parties. She asked him to give up the woman named. But he said he would not: that he both loved and needed her. He told her that he and the woman named had had an adulterous association for a long time and that the woman named had committed adultery with him at a hotel on one occasion more than a year ago when he had given her a ring: from then on he said, he considered they were in the same relationship as man and wife. This explained the reference to “wife” in the letters. 15. A few days later he showed the petitioner two further letters from the woman named. And there were further discussions during which he again, according to the petitioner, admitted his adultery. 16. The woman named returned to Hong Kong on July 13, 1971 and took up residence again in the family home. Very shortly afterwards the respondent’s stepmother handed some letters written by the respondent to the woman named. These letters were also exhibited. The petitioner did not show them to the respondent or discuss them with him. 17. However she took them to her father and consulted a solicitor on July 20th. On July 27th she left the matrimonial home and it was on that day that the petition was served on the respondent. 18. The respondent denies that he ever told the petitioner that he was guilty of adultery. He said that when the petitioner found the letters of the woman named she at once recognised who had written them. He explained his plot and she said she understood the reason for it. He denied specifically that there was any discussions concerning his giving up the woman named at any time. However he agreed that his letters had been found in the possession of the woman named and that this had caused a family row. He also admitted, which his letters evidenced, that he had sent the woman named £500 when she was in England. 19. There is therefore a direct conflict of evidence between the parties. From the demeanour of the witnesses and from the nature of the evidence given I much prefer the evidence of the petitioner to that of the respondent where there is a conflict. The petitioner struck me as being a truthful and a straight forward witness. 20. When she found the letters of the woman named the respondent admitted his adultery and she asked him to give up his association with the woman named. But she acted with hesitancy. She did not immediately leave the respondent. I can well understand a reluctance to believe what the respondent had told her during their discussions in view of the close relationship of the woman named and the respondent, if for no other reason. However I accept the evidence of the petitioner, that the respondent admitted to her that he had committed adultery with the woman named before she left for England. 21. The courts scrutinise carefully a confession or admission of adultery of a respondent; especially perhaps, when that confession or admission is retracted subsequently, as the respondent in this case did when giving evidence. 22. In this case the respondent’s admission of adultery is corroborated. to some extent by the letters he wrote to the woman named which definitely prove the existence of an infatuation, couched as they are in language which goes far beyond any expression of affection properly used between a brother and sister. 23. The respondent in his answer as amended pleads that if there was adultery it was condoned by the petitioner. 24. After the petitioner had heard the admission of the respondent’s adultery she continued to live with him. When she was quite sure of her case she still continued to live with him. And, she so continued even after she had consulted a solicitor as to divorce proceedings. The period in all was about one month. 25. During this time sexual intercourse took place. The petitioner says that this only occurred “about twice” and at the beginning of the period. She is certain that there was no act of inter-course on July 26th. The respondent on the other hand said that marital relations were normal during this time and that the last act of intercourse was on the night before she left the matrimonial home, namely on July 26th. 26. On July 26th the respondent gave the petitioner a check for $7,300. He stopped it the same day. The check shows that an attempt was made to cash it on the same day: the signature being that of the petitioner. The check was stopped according to the respondent without the knowledge of the petitioner. By that time the petitioner had consulted her solicitor and her petition had been filed. 27. On the balance of probabilities I accept the version of the petitioner that there was no sexual intercourse on July 26th. However she did admit that there had been intercourse early in the period in question after she had heard the admission of the respondent. There is therefore clear evidence of condonation. 28. The petitioner relies on section 51(2) of the Matrimonial Causes Ordinance which reads as follows:-
29. She said that after the discovery of the letters of the woman named and after hearing her husband’s admission she begged him to give up his association. She did not then want a divorce. She remained with her husband and submitted to sexual intercourse in order to try to save her marriage. In addition she was concerned about the child of the family who was about 2½ years old at the time. The child suffered from a serious illness soon after his birth and has to receive more attention than most children of a like age. 30. In order for the petitioner to take advantage of section 51(2) of the Ordinance it must be shown that the parties jointly intended to treat the resumption of marital relation as a trial period with a view to effecting a reconciliation. Or “there must be mutuality or at least knowledge on the part of one party that the other was so treating it”. The last sentence is taken from the headnote of Quinn v. Quinn(1). There is no evidence here of this. At no time did the parties come to an agreement to have a trial period in order to effect a reconciliation. According to the petitioner the respondent did not want to give up the woman named. And the respondent never mentioned any reconciliation. His evidence was that the petitioner understood his plot with the woman named and that was that. There is no evidence that the respondent treated this period as a trial period. There was no mutuality as to this. Indeed, there is no evidence that the respondent had any knowledge that the petitioner was treating their resumption of marital relations as a trial period for the purposes of effecting a reconciliation. She did not say that this was the case and she did not show her husband his letters and then suggest that despite this they should try again. She stayed with him normally sharing the same bedroom as before. He was not to know that this was only a trial period. 31. In my view the petitioner cannot take advantage of section 51(2) of the Ordinance. She condoned the adultery of the respondent. And this petition must be dismissed. 32. There will be a decree of restitution of conjugal rights in favour of the respondent. 33. I am asked to make no order as to costs.
M. Asome(Edmund Cheung & Co.) for Pet. A. Zimmern & D. Chang(Kwong, Lam & Chan) for Respondent. |