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Chan Tam Lai-man v Chan Shu-yam

Judgment Cited authorities 10 Cited in Precedent Map Related
Vincent
Judgment Date23 January 1969
Year1969
Judgement NumberCACV22/1968
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV000022/1968 CHAN TAM LAI-MAN v. CHAN SHU-YAM

CACV000022/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 22 OF 1968

(On appeal from Divorce Jurisdiction Action No.37 of 1967)

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BETWEEN:
CHAN TAM LAI-MAN Petitioner

AND
CHAN SHU-YAM Respondent

Coram: Hogan, C.J. and Huggins, J.

Date of Judgment: 23 January 1969

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JUDGMENT

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Hogan, C.J.:

1. This is an appeal from the dismissal of a wife's petition for divorce made on grounds of cruelty and one alleged act of adultery. An answer was filed consisting almost entirely of a blank denial of the grounds for divorce alleged in the petition. In his judgment, the trial judge was critical of the answer and at an early stage in the proceedings appears to have endorsed the contention of counsel for the petitioner that the answer was very unsatisfactory but it does not appear clearly what effect, if any, was given to these criticisms as, apparently, the husband was allowed to introduce all the evidence on which he wished to rely in answering the wife's allegations and was not precluded from doing so by any defect in his pleadings.

2. The parties were married in November, 1957, at the Marriage Registry, Victoria, Hong Kong, the petitioner being then aged 20 and the respondent 27. There are two children of the marriage, both boys, one born in August, 1958, and the other in July, 1960. The petition for divorce was filed in April, 1967. Throughout the greater part of their married life, save for the relatively short periods immediately before and after the births of the children, the petitioner was in employment mainly as a shop assistant, for a short period as a cashier in a photographic studio, and, for a relatively short period before she left the respondent, as a dance hostess. During those periods she was undoubtedly contributing to the upkeep and maintenance of the family household. The respondent himself was also in employment, originally as a shop supervisor, but, during the latter part of the marriage he was, for a substantial time, unemployed.

3. The trial judge summarised the allegations of the petitioner as being that the respondent was a man of ungoverned temper, addicted to gambling and that he had, shortly after the marriage, exhibited a hostile disposition towards the petitioner and manifested an utter lack of affection for her and had thereby pursued a course of conduct calculated to cause, and in fact causing, the petitioner distress and injury or apprehended injury to her health. This summary reproduces paragraph 9 of the petition which was followed by some 30 paragraphs of specific allegations of cruelty and adultery.

4. The trial judge stated that in view of the paucity of the evidence he found it necessary to examine the wife's complaints in some detail but the first ground of appeal before us is that the trial judge was wrong in law and misdirected himself in failing to determine whether the petitioner or the respondent was untruthful and thereby failed to discharge the responsibility reposed in him as an adjudicator; and that the petitioner was entitled to a decision as to whether the evidence which she had given and adduced was or was not to be believed.

5. In argument on this point reference was made to the case of Ho Yau Yee v. Yu Ming(1). In that case, I advanced views, as to the duties of an adjudicator when faced with a conflict of evidence which, as they did not commend themselves to both members of the court, were in the nature of obiter dicta. In doing so, I indicated that a litigant on whom rested the burden of proof and who had produced evidence which, if believed, would be sufficient to discharge that burden, was entitled to a positive decision as to whether that testimony was or was not entitled to credence and should not be adjudged the loser because a judge had failed or was unable to make up his mind on an issue of fact and had left the matter open. It seemed to me that if there was testimony in a case which, taken by itself, was entitled to credence, that credence should not be withdrawn merely because there was conflicting testimony to which credence was not being given.

6. The position would, of course, be different if the adjudicator was prepared to accord to the later evidence a measure of belief sufficient to justify withdrawing credence from the earlier testimony. But if an adjudicator cannot properly say that he does not believe the evidence of one party meroly because other evidence has been introduced, which he rejects as untrue, can he, nevertheless be justified in withdrawing credence from evidence which he would otherwise have believed, merely because he has heard conflicting testimony in which he lacks belief?

7. Attention has been drawn to the position where, having nothing on which to test a decision other than two flatly contradictory statements, a choice between them would be pure guesswork but, under our system, an adjudicator is rarely, if ever, put in that position. He has before him the pleadings in the case, the course of the proceedings and the advantage of testimony, authenticated by oath or declaration and tested by examination, cross-examination and re-examination, and by such further questions as he may wish to put. Although we do not have the opportunities for those experimental shortcuts which earned for Solomon his, possibly exaggerated, reputation for wisdom, it is an assumption of our system of administering justice that, with the advantages just mentioned, an adjudicator will, at the end of the day, be able to recognize where the truth lies and to make findings of fact to which the law can be applied. That is the task and the function accorded to an adjudicator by the community. Failure or inability to discharge it is, if not a failure by the adjudicator, at least a failure of the system and a failure which, if at all frequent, must bring that system into disrepute. It may be that there are occasions when, taking everything into account, including the demeanour of the witnesses, the texture of their testimony under close examination, and the inherent probabilities, both sides are left in exactly equal balance or balanced so close that there is no sensible margin between them but such occasions must be rare indeed. Their existence, at least in traffic accident cases, where it is notoriously difficult to get reliable and satisfactory testimony of fleeting incidents that can make so different an impact on the perception and memory of honest men and women, seems to have been discounted in the observations of the judges in the cases of Bray v. Palmer(2) and Baker v. Market Harborough Industrial Co-operative Society Ltd.(3), to which reference was made in the Ho Yau Yee(1) case. In Baker's(3) case, Denning, L.J., as he then was, said that where the court had no evidence to draw a distinction between the two drivers in a collision case, the court would not wash its hands of the matter because it could not say whether it was only one vehicle which was to blame or both:

"

 In the absence of any evidence enabling the court to draw a distinction between them, they must be held both to blame, and equally to blame ..............
It is very different from a case where one or other only is to blame, but clearly not both. Then the judge ought to make up his mind between them, as this court said recently in Bray v. Palmer(2). But when both may be to blame, the judge is under no such compulsion and can cast the blame equally on each.".

8. That approach seems to have found some endorsement in the recent case of Salt v. Imperial Chemical Industries(4), dealing with a claim for negligence in connection with the manufacture of drums containing caustic soda. In recounting the argument, the Court of Appeal said:

"But Mr. Thompson, for the plaintiff, had complained that really the Judge had failed to reach any conclusion at all, and that this case was in pari materia with Bray v. Palmer(2) - the case of a street accident between motor vehicles in which the Judge at first instance had concluded that he could not decide which of the parties had been negligent. In those circumstances the Court of Appeal had said that that result must be an injustice to one, if not to both, of the parties; and that if there was negligence so clear on the part of one or the other party, or possibly of both parties, the Judge must make up his mind.".

9. The Court of Appeal however took the view that the analogy was not a true one:

"..... for an accident of the present kind was not comparable to a street accident unless it could be proved as a matter of fact and according to the ordinary dictates of reasoning that the accident could not have occurred without want of care on the part of one or the other defendant ..... The Judge was entitled to conclude, as he had done, that the defendants had satisfied him that in doing what they did do as regards these drums they had exercised all the proper care which they were in duty bound to do.".

10. Whilst distinguishing the Bray(2) case on the facts of the case before them, the court would not appear to have questioned the validity of the principle said to have been expressed in the Bray(2) case but that approach does not appear to have found favour with the Australian High Court in the case of Nesterozuk v. Mortimore(5).

11. In that case two vehicles approached from opposite ends of a straight road, each driver said he was on the correct side and held to his course and that the other vehicle must have swerved although he could not say that he had seen the other swerve. The vehicles struck each other a glancing blow. Apart from the evidence of the parties there was nothing to indicate where abouts in the road the...

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