Lam Yung Tak v. Lam Tang Fung Kam
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IN THE SUPREME COURT OF HONG KONG DIVORCE JURISDICTION ACTION NO. 230 OF 1971 ----------------- BETWEEN
Coram : Briggs, J. in Court ------------------------ J U D G M E N T ------------------------ 1. In this case the Petitioner prays for a decree of divorce on the grounds of desertion. The Respondent in her answer also prays for a decree on the ground of cruelty or for constructive desertion. 2. The Petitioner is the husband, the Respondent is the wife. 3. The parties were married in Hong Kong on September 4th 1962 when the Petitioner was 29 and the Respondent 21. There are three children of the family, a son and two daughters, who are now aged 9, 8 and 5 years respectively. Each party seeks an order for the custody of the children. 4. The Petitioner proved that the Respondent left the Matrimonial home on May 5th 1968 and has not returned. His case is that she left without his consent and that she is therefore in desertion. There was evidence that he wantedher to come back and tried to effect this. Andshortly after the Respondent left for Holland and secured work there. She returned to Hong Kong about 12 months ago. 5. The Respondent does not deny that she left the Matrimonial home though at first she gave a different date from that appearing in the Petition. It turned out during the trial, that she had based the date given in her answer on the Lunar calendar, and she admitted in evidence that the date given by the Petitioner might well be correct. The reason she left she said was that she found the conduct of the Petitioner intolerable. And in her answer she sets out various incidents of cruelty of which she complains and of which she gave evidence. 6. The Respondent described herself as coming from an old fashioned Chinese family living in the New Territories. She knew when she married the Respondent that healso comes from a Chinese family which is run on somewhat old fashioned lines. At the time of the marriage both the parents of the Petitioner were alive and the Petitioner and his wife took up residence in the family premises. They continued to live there until the Respondent left. The Petitioner said that at the time of his marriage he, his parents and his two brothers, their wives and families all lived in the family house and the family took their meals together. After the death of his father this custom was abandoned and the various family units took their meals separately except at festivals. 7. It is not in dispute that the family of the Petitioner was more sophisticated than the Respondent was at the time of her marriage, though this may well not be the case to-day. 8. The Respondent was described to me as a quick tempered woman who is assertive of her rights. She is said to be of a very changeable disposition. From her demeanour in the witness box I can accept this reading of her character. She appeared to me to have a strong personality and to be a woman who does not like to take the second place. The Petitioner was described to me as being a person who is suggestible and very easily influenced. It was said that he was mild mannered and even of a rather timid disposition. Apparently he was shocked when a boy by the bombing of Hong Kong, during the War, and this has affected his personality. His elder brother indicated that he is easily muddled by quite simple problems. From his demeanour when giving evidence he struck me as being a passive individual, quiet and even tempered. He also is a man who is easily confused. This was shown in the evidence which he gave as to his means. 9. The most serious allegation made by the Respondent against the Petitioner is that in 1963 shortly after the birth of her first child, the Petitioner in effect attempted to kill her. I have heard both the parties and other witnesses give their version of what occurred. The evidence of the Respondent was inconsistent and highly dramatic. She said that while holding her child in her lap the Petitioner, apparently for no reason at all, suddenly tore open her pyjamas, forced her on to the bed, sat on her stomach and tried to strangle her. Later in her evidence was she said that the Amah was holding the child. She admitted that when she had freed herself she chased the Petitioner out of the room brandishing a spittoon as a weapon, and that he fled into his brother’s room. She also said that after intervention by other members of the family, the Petitioner knelt down and apologized to her. And she then forgave him. 10. The Petitioner gave a very different version of this incident. He said that the Respondent started a quarrel as a result of piece of gossip. She wanted a glass of water which he gave her. She deliberately poured the water over him, and there was a struggle during which her pyjamas were torn. He was never asked if he had knelt down and apologised to the Respondent. 11. The Respondent told the Court that she could not remember the cause of this incident because it occurred so long ago. Nor did she report the matter to the members of her own family. 12. I have come to the conclusion that the Respondent has exaggerated this incident out of all proportion. I do not doubt that there was a struggle and that her pyjamas were indeed torn. Nor do I doubt that she chased the Petitioner out of the room. However I cannot accept the rest of the version of the Respondent. If what had occurred was as she had said, I am sure not only would she remember the occasion or the reason for the quarrel, but also would have reported the matter to her parents, if not to the Police. 13. The Respondent also gave evidence of another incident which occurred very shortly before she left. There was a quarrel between the parties in their bedroom. The Petitioner tried to seek refuge in his mother’s room and was prevented by the Respondent. There was a struggle which also involved the mother of the Petitioner and an amah both of whom gave evidence in Court, and the Respondent fell to the floor. The Petitioner said that this incident was as a result of the constant nagging of the Respondent. And in her cross-examination the Respondent in effect admitted that she had nagged and provoked her husband. She prevented the Petitioner from going to sleep by continuously complaining to him that he paid far more attention to his mother than he did to herself. And of course it was the last straw when as a result of this the Petitioner ran to his mother for comfort. 14. I do not intend to deal with each incident alleged in the answer separately in this judgment. But two matters must be referred to in some detail. The Respondent alleged that in 1966 the Petitioner refused to take her in his car to see a doctor when one of the children was unwell. She had to use a taxi. This incident was not specifically put to the Petitioner. The second matter is this. On another occasion very shortly before the Respondent left the Matrimonial home, the Petitioner took her and one of the children to see a doctor in his car. He left her at the doctor and told her he would pick her up later from her sister’s flat in North Point. He phoned the sister later and told her he could not do this as the had to pick up his mother and brother from the Racecourse. The Respondent therefore had to take a taxi home. 15. In her evidence the Respondent made much of those two essentially trivial incidents. She obviously had been most upset on each occasion with the Petitioner, far more upset than the occasion itself warranted. Indeed on one occasion she was so angry that she destroyed all the photographs taken at her wedding. 16. I mention those two incidents particularly because they are indicative of the real complaint of the Respondent. This is that she feels that the family of the Petitioner, in particular the Petitioner’s mother, do not pay her the respect which is due to her. She resents the fact that the Petitioner pays so much attention to his mother, who of course is the head of the family. The Respondent was most anxious for the Petitioner to set up a Matrimonial home elsewhere and she was at pains to state that he had the means to do this. 17. She said she frequently asked him to do so but he always refused. This was not pleaded in her answer, but it was fully canvassed during the trial. 18. It is agreed by both parties that quarrels between them were frequent and often noisy. The basic reasons for any disagreement according to the Respondent were the inferior position relegated to her by the members of the Petitioner’s family. And the fact that the Petitioner paid more attention to his brother than to his wife. 19. There was some suggestion of sexual conduct of an irregular nature on the part of the Petitioner. This was neither pleaded by the Respondent nor put to the Petitioner. So the matter was not pursued. 20. The point I have to decide therefore is whether the conduct of the Petitioner amounted to cruelty or was of such a grave nature as to force the Respondent to leave him. The question is – has it been proved that the conduct of the Petitioner was such as to justify the Respondent in leaving, the test being a subjective test. That is I must decide the point as it concerns the Petitioner and the Respondent in the context of their manner of living. 21. From the evidence I have heard I cannot say that it has. Undoubtedly there are faults on both sides. If the Petitioner had set up a home away from the other members of his family the position would very likely have been improved: though I could not go so far to say that had that been done these proceedings would not have been brought. 22. On the other hand, the conduct of the Respondent has not been blameless. She has obviously nagged the Petitioner and has provoked him on many occasions. This is not a case where a decree can be pronounced in favour of each party. I find that the desertion of the Petitioner by the Respondent is proved. And in may view the correct order to make is a decree in favour of the Petitioner for desertion. 23. There remains the question of the maintenance of the Respondent and the custody of the children. 24. For about one year before the marriage broke up one of the three children, one of the girls, was boarded out in a nursery. I was not told why. Since the Respondent has left the Matrimonial home the two girls have both been staying in a nursery. The son lives at home with the Petitioner. All three children are at school and the Petitioner is responsible for their care and control. 25. The Petitioner claims custody. And by an amendment made at the trial so does the Respondent. 26. The Respondent can certainly earn her own living. She has done so at least during part of the last three years. However she is not in employment now. At the end of the trial the questions of the custody of the children and the maintenance of the Respondent and possibly of the children were adjourned into chambers. However I have been asked to make and interim order for maintenance for the Respondent as she is without means. 27. There is nothing to prevent the Court from making an order for maintenance in favour of a wife against whom a decree has been pronounced. However regard must be had to the conduct of the parties. And as I have indicated I have found that the Respondent is in desertion though the break down of the marriage was in part due to the conduct of the Petitioner. 28. I have heard certain evidence as to the means of the Petitioner: the Respondent says she is without means, except for some shares in a Company controlled by her husband’s family. 29. Doing the best I can, I will award the sum of $450 per month as maintenance for the Respondent at this stage. The first sum to be paid at once. 30. I will hear counsel on the question of costs later. 31. The question of maintenance and custody are to be reserved to be heard by me in chambers on a date to be fixed in consultation with counsel.
Denis Chang (Hastings & Co.) for Petitioner Mills-Owens (P.H. Sin & Co.) for Respondent |