Wai Chiu Ming v. Wai Chan Lai Jam (or Jan)
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IN THE SUPREME COURT OF HONG KONG DIVORCE JURISDICTION NO. 170 OF 1971 ----------------- BETWEEN
----------------- Coram : Briggs, J. in Court ------------------------ J U D G M E N T ------------------------ 1. The parties were married in March 1957. The Respondent was only 19 and the Petitioner was 23. There are no children of the marriage. Each party asks the court for a decree of divorce onthe grounds of the other party’s cruelty. 2. It might have been better, perhaps, had these proceedings been withdrawn, and a fresh Petition and Answer filed under the new legislation, because the evidence shows that the marriage has completely broken down - as to that there can be no doubt. However, we are bound by the oldlaw and by the pleadings which were not drafted by the counsel who appeared at the hearing on either side. It is apparent that these pleadings were drawn very widely. A number of allegations which were made in those pleadings have not been dealt with in evidence. It is obvious, of course, when learned counsel represent parties in court that there must be some reason why that course was adopted. I propose to deal with the Petition and the Answer on the evidence which was adduced in court before me and not on theunsubstantiated pleadings, because in these days, unlike the past, those pleadings are not sworn to as being the truth. Some of us consider that it is a pity, that the old practice has been discontinued. 1. I will deal with the case of the petitioner first. He was engaged at the relevant time in animport/export business and his firm employed his wife, the Respondent, as one of its employees. His evidence is,that there were persistent quarrels between the two parties,which were the fault of the Respondent and that she constantly and continuouslynagged him. In addition, he complains of three attacks that she made on him, using a pair of scissors on each occasion. It appears that those attacks were only to scare him. There is no suggestion that she actually wounded him. The Respondent denied making any such attacks. 4. The petitioner’s main complaint perhaps is that he was only allowed out alone for two hours on Tuesdays to see his parents and in addition he was allowed out alone to see and entertain foreign customers of the firm which were not all that frequent. He gave evidence that the Respondent only allowed him to go on business to Taiwan on one occasion, on condition that he gave her $2,000, and that an intended business trip to Japan had to be cancelled because she demanded $5,000 to enable him to go and he refused to pay her that sum. 5. Apart from these occasions the petitioner said he was never allowed to leave the matrimonial home unaccompanied by his wife, who of course travelled with him to the same office daily. The petitioner said that at the relevant time he was earning $2,000 per month, roughly speaking, and that he gave her about $1,400 to $1,500; in addition, she earned $760 which she kept as her own salary. 6. In his evidence he said that the Respondent had refused sexual relations with him since February 1962. After he said this, there was a break in his evidence which dealt with another matter. He was then brought back to that point and he corrected his evidence and said that it was since February 1970. I find this a very odd way of giving what must be considered a very important part of his evidence - a period of 8 years being involved - and I think that the answer which he gave of February 1962, which he did on more than one occasion, was completely frivolous. 7. At the end of September the petitioner left the matrimonial home suddenly and returned to his parents. He came back for his clothes on one occasion, but never lived with the Respondent again. He ceased to pay the rent as from October 1971, as a result the landlord distrained for the rent and the Respondent had to leave the premises. 8. Now, I will say at once that I found the petitioner a very unsatisfactory witness. I do not believe that he did not know that the landlord had distrained for the rent, for example. He must have known. He was the tenant. Theonly relevance of this evidence in this case is as to the credibility of the petitioner. It is not, of course, relevant in any other respect. Another piece of his evidence derives comment for the same reason. He said that there were three bedrooms in the matrimonial home and that his wife’s mother and a Miss Suen slept in one, while he and his wife slept in the second and the third one was empty. The evidence is to the contrary: that there were only two bedrooms there and one was empty and one was used by the petitioner and his wife and that his wife’s mother and Miss Suen slept in the kitchen. I accept Miss Suen’s evidence and the evidence of the wife’s mother on this point, which was corroborated by the mother of the petitioner himself. 9. Now, those two pieces of evidence as to the distraint and the bedroom are, as I say, only evidence going to the credibility of the witness. And I find that he was not a credible witness. I will say at once that I cannot believe that he was kept in like a school boy for all this number of years and was only allowed out for a restricted two hours every Tuesday. The evidence of Miss Suen is that she lived with the parties and she noticed that he was more often than not absent in the evenings when she was there, and that as time passed, his absences became of longer duration and greater in number. Sometimes he absented himself for two or three days at a time, not only from the matrimonial home but also from the office. I again accept her evidence. She struck me as being a truthful witness and I think she is an independent witness. No evidence was given of the particular conduct of the wife which made him leave at the particular time he did leave the matrimonial home. It is clear that he left the matrimonial home and he was in desertion and not the wife, although he said in the witness box that his wife had deserted him. This cannot be so. He left, he stopped paying the rent, and she remained.If she had deserted him,she would have left the premises, which she did not do, and he would have continue to live there and pay the rent. 10. Finally, there is no evidence that his health was affected by any conduct on the part of his wife. 11. Taking his evidence as a whole, I will say this: that where his evidence and the evidence of his wife conflict, I prefer the evidence of the latter to that of the former. Taking all of this into consideration I do not think that he has made out a case of cruelty. I am not suggesting there was no fault on the part of the Respondent; indeed, the experience of these courts shows that in matrimonial disputes almost inevitably there are faults of both sides to some extent - but there is not here in my opinion enough evidence to found a successful petition for divorce on the grounds of cruelty, so the petitioner’s petition must be dismissed. 12. I now come to the Answer, which is in the form of a cross-petition. Again the Respondent is asking for a decree of divorce for cruelty. Firstly, she complains that the petitioner stayed out late, his absences during the continuance of the marriage getting more protracted and more numerous as time went on. This she said caused quarrels between them. She said that when her husband came back - which was usually very early in the morning - that would cause a quarrel to arise between the two of them. And there is the evidence of Miss Suen that this is so: not only were there absences from the matrimonial home, there were also absences from the office. 13. It was suggested also in evidence that the petitioner was guilty of philandering. This was not put on the direct basis of adultery but it was urged that the petitioner had associated with dance hostesses in ballrooms and with other young girls generally speaking. There was a suggestion that in one case a girl, whose photograph was produced in court, was put forward as a suitable candidate for a second wife for the petitioner by his own father, this suggestion being made to the Responent. There was no corroboration of this because there was nobody else present except, of course, the parties and the father of the petitioner and the petitioner’s father is now dead. 14. The wife, the Respondent, also complained of two assaults: one at the office and one after an incident at a ballroom. In each case she was sufficiently hurt to have to go to hospital. That was confirmed by her mother and by Miss Suen. Miss Suen also witnessed the actual assault at the office. These are two obvious acts of gross cruelty, the one at the office inparticular since it was in public and must have been extremelyhumiliating as well as of a painful nature. 15. 1. The Respondent also complained that the petitioner left the flat and ceased to pay the rent, resulting in a distraint on the Respondent. This was without warning to her, she said, and since that time January 1971 he has wilfully neglected to maintain her. 16. There was a considerable body of evidence about the unsatisfactory way in which the Respondent was supplied with housekeeping money. I do not think that by itself is of very greatimportance in this case, because the evidence was not verysatisfactory and there is no suggestion that nothing was given during the marriage up to the time that the petitioner left the matrimonial home. 17. The Respondent said that her health suffered by the constant strain of living in these conditions and she lost weight and she lost her appetite. That evidence was not challenged. 18. I asked counsel to address me on condonation. The Respondent did continue to live with her husband during all this time, but I agree with counsel that the acts of cruelty which I found proved - those which I have mentioned though condoned - were revived by the desertion and wilful neglect to maintain on the part of the petitioner since January 1971. 19. I thought the Respondent was a good witness and there was no reason to suppose that she exaggeratedher evidence. I am of the opinion that she has made out a case of cruelty against the petitioner and she is entitled to a decree. There will be an order for a decree for the Respondent on the ground of the petitioner’s cruelty and the petitioner’s petition is dismissed. 20. The Respondent is entitled to her costs in respect of both issues. 21. By consent it has been agreed that the petitioner shall pay the Respondent $300 maintenance each month commencing on October 1st 1972. The sums are to be paid into court. The Respondent is to have liberty to apply to vary the amount.
Miss J. Leong (Gunston & Chow)for Petitioner Robert Tang (K.Y. Woo & Co.)for Respondent |