Christiane Francoise Lee v. Shao Ping James Lee
|
HCA 255/1971 IN THE SUPREME COURT OF HONG KONG DIVORCE JURISDICTION ACTION NO. 255 OF 1971 ____________
Coram: Blair-Kerr, S.P.J. in Court Date: 9 August 1972 ______________ J U D G M E N T ______________ 1. The parties [I shall refer to them as “the husband” and “the wife”] were married in Hong Kong on 1st September 1970. By her petition dated 19th August 1971 the wife seeks a decree of judicial separation on the ground that the husband has since the celebration of the marriage treated her with cruelty. The husband, in answer to the wife’s petition, denies that he has been guilty of cruelty and he cross-petitions for a declaration that his marriage is null and void on the ground that the marriage has not been consummated owing to the wilful refusal of the wife to consummate it. 2. The husband is a Chinese, born in Shanghai in May 1933. Therefore he is now 39. He came to Hong Kong in 1948; and after studying for 3 years at St. Stephen’s College he attended the University of Exeter from 1951-1953. During 1954, he attended classes in the University of Illinois; and he then studied for 2 years in the University of Berkeley in California graduating in 1956 in business administration. 3. He then came to Hong Kong with a view to looking after his father’s business; but after a time he studied political science in Stanford University. Then he tried to establish a travel service in Australia. Then he studied somewhere in Germany; and subsequently visited Holland and France. In 1967 he attended lectures a University in Brussels. 4. The wife is now 28 years old. Her mother is Austrian. Her father was French. She was born in Paris; but she has a Swiss passport. In 1967, when she was 23, she was studying economics and history at the Brussels University; she met the husband in November that year. According to him, she tutored him in French, or rather Flemish, the language in which the classes were conducted; and they became friendly. According to her, initially she was attracted to him because of his good manners, because he was kind to her, and she found that she could discuss serious subjects with him. 5. He returned to Hong Kong at the end of 1967; and it is clear from his evidence that, although he did not at that time give her any indication as to how he felt, he found her physically attractive. He began to write letters to her; and, in the course of his correspondence, the question of marriage between persons of different races was discussed in general terms. But, she said that she was very surprised when in May 1968 she received a letter from him asking her to marry him and enclosing a ring. She felt that she could not possibly accept his offer until she had got to know him a great deal better; and she told him so. 6. She completed her studies; and she took a job with an import/export business in Brussels at a salary of 25,000 Belgian francs per month [approximately HK$3,300 per month]. In the meantime, he had become interested in establishing a factory in Singapore and he found a company there called Union Perfumery Industries (Private) Ltd. He continued to write to her and he suggested that she should come to Singapore and be employed by this company as a “liaison manager”. In evidence, he said that because his perfumery company in Singapore was doing a great deal of business with European countries it would give the company “greater standing” to have a European liaison manager. 7. But she knew nothing about the technicalities of perfumery; and according to her, it was arranged that if she were to come to Singapore she should first attend some course of training in perfumes in Holland, Germany and Geneva; and, accordingly, about the middle of November 1968 he remitted to her 73,187 Belgian francs to defray the expenses involved in this course of training. 8. According to him, she was financially embarrassed at this time; and this money was intended to assist her to complete her studies at the University of Brussels. He said that there never was any question of her taking any training course in perfumery. 9. Counsel did not elicit from the wife the date of her graduation in Brussels. However, I think I ought to say now that, generally speaking, I took a very favourable view of the wife’s credibility and a very unfavourable view of the husband’s credibility; and, generally speaking, where her evidence differs from his, I say, without hesitation, that I prefer her version. She said emphatically that she had a scholarship; and that she was able to pursue her studies at the University quite comfortably. However, she did accept this 73,187 francs [the equivalent of HK$9,650 approximately or Singapore $4,825.] And on 12th November 1968 she signed a receipt which reads:
10. It is common ground that she did not attend any course of instruction in perfumes in Holland, Germany and Geneva. As I have said, upon completion of her studies, she took this managerial job with the import/export firm in Brussels. The husband came to Belgium early in 1969 and met her mother; and he then returned to Singapore. She eventually agreed to come to Singapore; and she gave up her Brussels job and accepted the husband’s offer of the job with his company in Singapore. His company paid her air passage; and she arrived there on 2nd November 1969. 11. Although she had accepted his ring and she was, in a sense, engaged to be married, I think it is clear from the evidence that she did not intend, at that stage, to commit herself in any way, nor indeed did he regard her as actually engaged to be married to him. She was coming to a strange land. A person of an alien race had asked for her hand in marriage; and she was moving very cautiously. The wife is a very intelligent, serious-minded young woman. I formed a very high opinion of her. 12. Upon her arrival the first thing the parties did was to sign a contract relating to her employment. It was signed before his solicitor on 11th November 1969. It is in French. It is not known whether the solicitor speaks French or took any active part in the drafting of it. From its terms, the probability is that he did not do so. She says that she and the husband drafted it together. An English translation of it reads:-
13. When she was asked in evidence whether she has repaid the loan of 73,187 Belgian francs, she pointed to clause 8 of the contract. The period November 1969 to November 1973 is 49 months. 49 times S.$50 is S.$2,450. However, she also said that S.$1,000 which was supposed to be paid by the husband’s Hong Kong company [Shanghai Union Trading Co.] into her bank account in Brussels, was never paid at all; and her evidence on this point was not challenged. 14. This flat in Orchid Mansion was acquired by the husband at the end of 1968 for his own use, and he lived there from January to October 1969. When the wife arrived in November 1969, he moved out of the flat and lived in a house [6 Lucky Gardens] which was situated about a mile from the flat. 15. At the end of 1969, the wife came to Hong Kong for 3 weeks to meet the husband’s family. She stayed with his mother at Kowloon Tong. The parties then returned to Singapore. In April 1970, he went to China; and he returned to Singapore in June 1970. At the end of June 1970 he visited Bangkok and Hong Kong. 16. After he had returned to Singapore from China, she decided that she would accept his offer of marriage; and on 12th August 1970 she came to Hong Kong to get married. There is no doubt in my mind that she had decided to give herself completely to the husband. He owned a flat in Macdonnell Road; and, on arrival to Hong Kong, she resided with him in his flat. The only other person in the flat was his amah. She acknowledged frankly to me that between her arrival in that flat on 12th August and the date of her marriage, she had sexual intercourse with her husband. I am in no doubt that she was deeply in love with him; and, according to her, the sexual relations which they had were normal. 17. It appears that the honeymoon which they planned was to consist of a tour comprising visits to Tokyo, Kyoto, back to Tokyo, a visit to Taiwan to meet his relatives there, returning to Hong Kong on 22nd September. She said that although Osaka was considered as one of the places they might visit, it was discarded because of the shortage of accommodation on account of Expo 70. 18. The parties travelled by air to Tokyo on 2nd September 1970. He had booked a double room in a hotel there; and they had sexual intercourse. But after one week the husband suddenly changed his mind. He arranged through some business friend for accommodation for himself in Osaka. He refused to allow the wife to accompany him; and he left Tokyo on 9th and returned to Tokyo on 14th September. She went to Kyoto alone on 10th September and returned to Tokyo on 13th September, as planned. It was arranged that while in Osaka he would phone her in Kyoto; but he did not do so. 19. The first she knew of his return to the hotel in Tokyo was a message from the reception desk to the effect that he had booked a single room for himself in the hotel. She contacted him. He said: “It is better this way, we are more independent, we are free; anyway we can see one another sometime.” 20. The wife was shocked at her husband’s attitude. However, more was to follow. He then refused to accompany her to Taiwan. He arranged for her to go there on 16th September as planned, and to be met and entertained by his relatives in Taipei; but he remained in Tokyo, giving no reason (business or otherwise) for his doing so. 21. She returned to Hong Kong on 22nd September, he met her at the airport. She resided with him at the Macdonnell Road flat till 26th September; and during that period further sexual intercourse took place. He was supposed to return to Singapore with her; but again he changed his mind; and she left Hong Kong alone. 22. A few days later she received a very formal letter typed by someone in the husband’s company. It read:-
His explanation for signing such an extraordinary letter to his wife was that he asked his secretary to write to her and tell her that he would come down to Singapore as soon as his business with Herr Schulze was finished, that the letter was somehow accidentally put before him for his signature and that he signed it “blind”. That is probably true; but it is also indicative of his attitude. This man, who had only been married for one month, could not spare a few minutes to write a short letter to his wife by his own hand. 23. That thought must have occurred to him when he gave evidence; because he then proceeded to elaborate on this matter and said that he was furious with his wife because he had found out that on 23rd and 24th September she had drawn various cheques on their joint account with the Shanghai Commercial Bank in Hong Kong, and that this had resulted in the balance of his account being greatly reduced. He had given her authority to draw on the account; but he alleged in evidence that there was some “understanding” between them that she would not draw cheques to the extent to which she in fact did. 24. This was not put to the wife in the witness box; and I asked counsel if the position could be clarified. Next day, Ex.H was put in by consent. This consists of her explanations for having drawn 8 cheques totally HK$13,280.50. According to her, the husband was present with her when she drew 6 of these cheques, the total value of which was $12,782.50. Although, he said in evidence that he was not present, I did not accept his evidence. Counsel did not ask for the wife to be recalled to give evidence on this new aspect of the case; and, so far as she is concerned, I only have Ex.H. 25. According to this document, the husband was present (1) when she drew a cheque in favour of Lane Crawford Ltd. In payment for a ring costing $2,400, (2) when she gave the bank a cheque for $6,167.50 being their authority to the bank to debit the account with the cost of US$1,000 worth of traveller’s cheques, and (3) when she drew $3,000 in cash from the bank being the equivalent of S.$1,500 which, they had agreed, should be paid to her every month to cover household expenses and her own personal pocket money – this payment, according to the wife, was her September allowance. 26. If he had really been angry with his wife for “over-doing it”, so to speak, what I cannot understand is why he did not say so at the time either verbally, or in writing, and tell her that in future there would be no more joint accounts with banks. But, as will be seen presently, the same thing happened a month later in Singapore. I do not accept the husband’s explanation that he was furious with his wife because she drew so many cheques on the bank account without his knowledge. 27. She sent him letters and telegrams from Singapore; but he did not write any further letters. She had a telegram from him on 14th October which indicated that he had had a pleasant holiday by himself in Macau; and eventually he arrived in Singapore towards the end of October 1970, having spent some days in Bangkok on the way. 28. On his arrival, she met him and asked him whether she should live with him at 6 Lucky Gardens or whether he would now return to the flat and live with her there. He made it perfectly clear to her that he had no intention of living with her permanently under the same roof. Her recollection of the conversation ran something like this:
29. She was allowed to go to 6 Lucky Gardens once or twice a week to have dinner with him and stay overnight. They did sometimes sleep together. 30. As I have said, it was agreed that she should have S.$1,500 per month to cover household expenses and pocket money. He had an account with the Chartered Bank; and he agreed that she could draw on this account. From the bank statement it appears that she was given a cheque book on 26th October. 31. They agreed that she should have a second-hand car. On 26th October, they consulted a Mr. Tang Zin Chai, manager of a garage called Winsome Brothers; and the husband was present when they tested and chose the car and when she drew the cheque in payment therefor viz. S.$5,750 and the cheque for S.$150 to enable Mr. Tang to pay the registration fee. On 26th October, she also drew a cheque for S.$313.75 in payment of the car insurance: the last two cheques were dishonoured. It appears from the bank statement (document A8) that his may have been the fault of the bank. On 26th October, the husband drew a cheque for S.$7,000. It is not known whether his original intention was to pay for the motor car in cash. At any rate the account was credited with $7,000 the same day; but, apparently, not before the two cheques I have mentioned were dishonoured. 32. By the end of October 1970, relations between the parties were becoming strained. On 28th October, he wrote her a note which reads in part:-
Mr. Sheppard was the name of his solicitor. 33. It appears that she tackled him about the dishonor of the cheques in payment of the car registration and the insurance; and he sent her a note reading:-
This elicited a rather acrimonious reply from her dated 6th November. 34. On 2nd November, she drew a small cheque for S.$174 in favour of her doctor (Dr. Mark Yu). This cheque was dishonoured. On 26th October, in addition to the cheque for S.$7,000, the husband drew a cheque for S.$1,344 (cheque no. 747). He then drew two other cheques (748 and 749) for S.$152 and S.$4,333.71 respectively. Cheque no.749 was debited on 27th October; and cheque 748 for S.$152 was debited on 2nd November. But cheque no.749 was the last cheque he drew after he drew cheque no.748; and the balance of the account was then $4,333.71. Clearly his intention was to close this account; and he did so without informing his wife. In her acrimonious letter of 6th November, she said:
35. However, he did open another account in her name with the First National City Bank; and each month he caused to be transferred into this account from his own account with the bank S.$1,500, as they had agreed. 36. One evening in November 1970 when visiting him at 6 Lucky Gardens, she tried to get him to reverse his decision about her living in the flat and he living in the house. He then told her that he regretted having married her, indeed that he regretted having married at all because it meant that he had lost his freedom. 37. On one occasion during November or December (it was not clear from the evidence) he left Singapore on a short trip somewhere without even informing her where he was going. 38. Among the agreed documents, there are two letters from her to him dated 1st December. She had been spending the evening with Dr. and Mrs. Yu [Mrs. Yu is Swiss by birth]. For some reason or other, the husband had called at the flat when she was out. She returned very late and phoned him. There was no reply. She became very worried as she did not know where he was; and she went to 6 Lucky Gardens looking for him. She appears to have been in an extremely nervous state when writing these letters which she letter at the house in the early hours of the morning. 39. Obviously, relations between the parties were becoming very strained indeed. On a number of occasions during November and December 1970 he telephoned her in the middle of the night and began to discuss some quite unimportant matter, and when she remonstrated at being wakened up in the middle of the night, his only comment was: “I cannot sleep, and therefore I see no reason why you should do so” – or words to that effect. The telephone calls were made for no purpose other than to annoy her. 40. One day towards the end of December 1970, she found a note in the husband’s handwriting on the table in the living room of the flat. He had a key to the flat; and he must have left it there in her absence. He admits that he wrote the note. It reads:-
41. Whether one regards this as a threat or a warning, it is certainly indicative of the tense situation then prevailing. The parties, of course, were living as he had decreed, that is to say he at the house and she at the flat; and sexual intercourse had ceased in November 1970 because he told her that he did not wish to have any more sexual intercourse with her. The reason which he gave was that he was nervous and worried because his father had been kidnapped and killed in Brazil and his kidnappers were still at large. At the time she accepted this explanation; and she said in evidence: “I was very patient with him.” But, clearly, that was not the reason for his blunt refusal of further intercourse from November 1970 onwards. There is no suggestion in the evidence that his health was in any way impaired or that he was other than a normal healthy physically at least, although in one of her letters to his mother she makes some reference to her husband having been treated in a psychiatric institution. But this suggestion was not explored during the hearing before me. 42. The husband left Singapore on 6th January 1971. He told the wife that he was going to meet his uncle in Hong Kong and arrange matters in connection with some proposed investment in Government projects in Singapore, and that he would be returning to Singapore in a few weeks. Letters and telegrams were exchanged; and she telephoned him several times. Much to her surprise, he sent her an air-ticket which would enable her to visit Europe and Brazil. On 20th January she wrote to him upbraiding him for constantly changing his mind. The letter reads in part:
Apparently, he suggested to her that they should go for a trip to Europe and South America, and then settle in Thailand. When she came to the Far East, she anticipated that if she married him her home would be in Singapore. In this letter she told him, in effect, to stop changing his mind so often and to think carefully before making major decisions. 43. On 9th February 1971 he wrote her a rather extraordinary letter. It read in part:-
The allowance was, of course, the S.$1,500 per month, and in this letter he is threatening to stop this allowance. Why? He does not say: “I do not propose to live in Singapore any more; I propose to live in Thailand; or I propose to live in Hong Kong. You are my wife and I expect you to live with me if I am to be responsible for your maintenance; and if you refuse to do so, I shall stop your allowance.” All he says is that for the sake of his friends and relatives, he hopes that she will pay them a visit. 44. By February 1971 she had received two formal demands from the Singapore authorities in connection with the property tax in respect of the flat. She sent the first demand note to him; and he ignored it. On 18th February she sent him the second demand note saying:
This letter was also ignored. Eventually she had to borrow S.$658 from Dr. and Mrs. Yu to enable her to pay the property tax. She eventually repaid this sum of Dr. Yu. 45. On 16th February he wrote her a rambling letter in which he said that a Swiss company had invited him to visit Switzerland and that he proposed to go to Europe for 2 months; that he hoped that he and she could visit Brazil sometime during the year; and he says:
He also sent her an air ticket to enable her to travel from Singapore to Hong Kong. 46. In evidence, she told me that about January 1971 she felt that her marriage was a failure but that she hoped that it might still be possible to save it. She came to Hong Kong on 24th February and stayed for 3 days in the Macdonnell Road flat. He said that he was leaving for Switzerland on 28th February. Therefore she returned to Singapore on 27th February. In fact his departure was delayed for a few days and he arrived in Switzerland on 3rd March. 47. During the 3 days she spent in Hong Kong they slept in separate rooms and no sexual intercourse took place. But she spent a good deal of time with him and called at his office where she found a letter dated 18th November 1970 addressed to him by the Swiss Consul General. It appears that in October 1970 he applied for permission to reside permanently in Switzerland and in this letter the Consul General asked him to answer certain questions. 48. He admitted in evidence that he had not told his wife that he wished to reside permanently in Switzerland; and nothing he said in court lead me to think that if his application had been approved he would have asked the wife to accompany him. 49. He spent 2 months visiting various parts of Europe. His trip there was, for the most part, a holiday. He did not receive a number of her letters. But that is hardly surprising as he kept moving from place to place. He returned to Hong Kong in May 1971. On 11th May, he wrote to the wife as follows:-
One would have thought that, before stopping her allowance, he would, at least, have written to her or telephoned her. He had no reason whatsoever for thinking that she had left Singapore. It would appear that at first she accepted what he said viz. that he genuinely thought that she might no longer be in Singapore. Her letter to him dated 29th May did not betray any deeper fears. She simply told him that Mrs. Yu had advanced her S.$1,500 to enable her to pay her May bills. Mrs. Yu also wrote to him informing him of this. 50. However, about 30th May, the parties had a telephone conversation; and the things he said to her on that occasion are in strange contrast to some of his remarks in his letters. My note of her evidence reads:-
51. On 31st May she wrote him as follows:-
At this time his factory was still in operation in Singapore. He had a car at his disposal and his house, clothing, etc. were there. There was no reason why, upon receipt of his wife’s letter of 31st May, he could not have gone to Singapore to discuss their future. He made no attempt to answer her letter, which, unquestionably, called for an answer. Instead, he went off to Macau; and, on the 15th June, he wrote to her saying that he had purchased an apartment in Macau; and he added, “When can you come to Macau to see it?” 52. On 3rd July, he sent her a postcard from Macau in which he said:
Again, he merely wishes her to visit Hong Kong and Macau. 53. On 6th July 1971, he sent her a postcard which read:-
In evidence he was asked why he said he was distressed because he had been unable to contact his wife by telephone. He said that he suspected that she was associating with other men. Earlier in his evidence, he alleged that on one occasion he spoke to some Indian car cleaner at Orchid Mansion and that this man had said that he had seen strange men at the flat. The wife denied any improper association with any man either at the flat or elsewhere; and I accepted her evidence. 54. It appears that from January to July 1971, the wife was in a highly nervous state as a result of the husband’s attitude towards her; and during the husband’s absence from Singapore she frequently spent the night at the home of a Miss Margaret Sowerby. 55. Some further letters passed between the parties in which he indicated that he intended to visit Singapore and there are suggestions that she intended to visit Hong Kong. But he did not visit Singapore; nor did he instruct his bank to resume payment of her allowance. In order to live she was forced to cash the Brazil air ticket, spend her savings and borrow from friends. She never saw the husband after 27th February 1971. Sexual intercourse had ceased in November 1970; and in August 1971 she came to Hong Kong and instructed her solicitors to institute proceedings for judicial separation. 56. On 8th September she wrote to his mother in Kowloon Tong. The letter reads in part:-
She returned to Brussels shortly after that; and she now lives in an apartment on the 1st floor of 64 Rue Alphonse Renard. Her mother lives in an apartment on the 2nd floor of that building. 57. On 23rd December 1971, the husband wrote to his mother-in-law, Mrs. Faivre-Bauer, in Brussels, as follows:
58. Between January and July 1971 the wife consulted Dr. Yu professionally on more than 40 occasions. In the early part of February 1971 she was so ill that Dr. Yu advised her not to travel to Hong Kong; and he gave her a certificate which indicates that she was suffering from severe nervous depression and vertigo. For the purpose of this case he gave her a certificate dated 30th July 1971 which reads:-
59. Dr. Yu’s observation of the wife was by no means limited to the 40 or so occasions on which she consulted him professionally. He and Mrs. Yu were close personal friends of the wife, who visited the Yu home on numerous occasions. Therefore Dr. Yu was in a particularly favourable position to observe changes in the wife’s state of health. 60. The wife herself testified to the various symptoms described by Dr. Yu; and she told me that between December 1970 and February 1971 she lost 12 lbs. in weight. 61. That is the story. As I have said, I accepted the wife’s evidence. She was a truthful witness. The main complaints in her petition have been substantiated. 62. The gravamen of the wife’s complaint is contained in paragraph 9 of her petition. It reads:-
63. I doubt whether the husband was ever really in love with his wife. At any rate, after a few days of marriage in Tokyo, it is quite clear that he regretted losing his freedom; and from then onwards it seems as if he did little else but run away from her. He was content for a time to see her twice a week or so in Singapore provided they resided in separate establishments; but, as a result of his behavior, it cannot really be said that the couple ever established a proper matrimonial home at all. His guarded references, on occasion, in letters and postcards, about his desire that she should “visit” him in Hong Kong and Macau or make a new home in Macau, Thailand or elsewhere did not have the ring of sincerity and they fooled neither the wife nor this court. 64. Her health suffered quite severely as a result of his behavior which clearly was cruel in the legal sense of the term. No woman should be asked to put up with this sort of conduct indefinitely; and she had every justification for instituting proceedings for judicial separation on the ground of cruelty and returning to Europe. 65. I therefore refuse the relief sought by the husband and grant the wife a decree of judicial separation on the ground that since the celebration of the marriage the husband has treated her with cruelty.
Bohkary (Johnson, Stokes & Master) for Petitioner Gittins, Q.C. and W. Wong (Philip K.H. Wong & Co.) for Respondent | |||||||||||||||||||||||||||||