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Cheung Yuk Lin v Hui Shiu Wing

Judgment Cited authorities 10 Cited in Precedent Map Related
Vincent
Judgment Date27 February 1970
Year1970
Judgement NumberCACV38/1969
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV000038/1969 CHEUNG YUK LIN v. HUI SHIU WING

CACV000038/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO.38 of 1969

(On appeal from D.J. Action No. 52 of 1965)

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BETWEEN
CHEUNG Yuk Lin alias Loretta Cheung Appellant
(Respondent)

AND
HUI Shiu Wing Respondent
(Petitioner)

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Coram: Full Court Blair-Kerr, Briggs, JJ. and Mr. Commissioner Pickering.

Date of Judgment: 27 February 1970

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JUDGMENT

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Blair-Kerr, J :

1. Throughout this judgment I shall refer to Hui Shiu Wing as "the husband" and Loretta Cheung as "the wife".

2. The parties were married in October 1959. The husband was then aged 25 and the wife 22. They are Buddhists; and it is not in dispute that they are the children of wealthy parents who have been described as "entirely characteristic of the eminently respectable old-fashioned traditional Chinese both in outlook and religion". The fathers were friends; and both sets of parents have extensive interests in the hotel business in Kowloon.

3. Although the parties were Buddhists by religion, the marriage was the civil equivalent of a Christian marriage, and it took place in the Marriage Registry, Kowloon. It was duly consummated; but there are no children. It lasted 13 months.

4. On 31st August 1960, the wife left the husband because, according to her, his conduct was intolerable. She was persuaded to return to him a few weeks later; but the final parting took place on 30th November 1960, when she went to live with her parents.

5. She had interrupted her academic studies in order to ma ...(illegible) the husband; and sometime between 1961 and 1963 she resumed those studies. In 1963 she went to London where she eventually passed her "A" level examinations, and subsequently obtained a diploma in interior decoration after a 3-year course of study. It appears that she has lived for the greater part of the period 1963 to date in the London area.

6. In September 1965, the husband filed a petition in which he sought to divorce his wife on the ground that she had deserted him without cause. The petition was not served until 25th June 1966; and the wife's answer was filed in September 1966. In this document she denied that she had deserted her husband without cause. She alleged that he had ill-treated her during the marriage, and there were other allegations in regard to his association with other women. She sought an order for the dissolution of the marriage on the ground of the husband's cruelty to her. She further alleged constructive desertion on his part in that

"........ by his conduct .....(he) evinced an intention to drive (her) from the matrimonial home with the object of bringing cohabitation between (them) permanently to an end ...............".

7. Between November 1960 and January 1967, the husband did not maintain his wife, and it was her parents to whom she looked for support. On 5th January 1967, the Registrar made a consent order for alimony pendente litem in the sum of $3,200 per month; and the wife received monthly payments at this rate as from the date of service of the petition (25th June 1966) to the date of the decree absolute (11th October 1968).

8. In his Reply dated July 1967, the husband joined issue with the wife as regards her allegations of cruelty; and the petition and cross-petition came on for trial in August 1967. The learned trial judge made a decree nisi for the dissolution of the marriage on the ground of the wife's desertion without just cause; and her cross-petition was dismissed. Having so decided, the learned judge at p.15 of his judgment said this :-

"In conclusion I would only make these observations: they are relevant in the light of any further proceedings of a different nature which may take place between the parties. In cases of this nature it must be very rare indeed to find that the breakdown and failure of a marriage can be attributed solely to one or other of the spouses. This case provides no exception. The (husband) admitted that even during the relatively short period they lived together he was out many evenings during the week leaving his wife at home. He said that this was largely due to the fact that he had to attend business dinners and functions of a business nature at which he had to entertain actual or prospective clients. Such business entertainment often included attending night clubs and similar places of entertainment. Many of these functions were for men only, but he admitted that some of them were mixed parties, and he further admitted that although on some of these occasions he took his wife, on others he could have done so but did not do so. I have no doubt that the (husband) found the attendances of these so-called business functions a useful pretext to combine business with pleasure. The incident of being found in the car with another woman in March 1960 and, indeed, his lack of any explanation (either to his wife at the time or to this court during the course of his evidence) to account for his late return to the Kadoorie Avenue flat on the 29th November immediately preceding the incident which gave rise to the (wife) finally leaving the house, are matters in themselves which could hardly have conduced to furthering a happy relationship between the parties. Whilst I am fully satisfied that his conduct fell far short of cruelty or constructive desertion, I am equally satisfied that his selfish and inconsiderate behaviour and his attitude towards his wife were matters which, although not sufficient to form a valid defence to a petition for desertion without reasonable cause, contributed in no small degree to the breakdown of this marriage. Those are matters which may well be relevant for consideration if and when any application for permanent maintenance is made by the (wife)."

9. The wife appealed to the Full Court, the members of which were the then Chief Justice, myself and Mills-Owens J.; and on 27th February 1968 the decision of the learned trial judge was reversed and a decree nisi was entered in favour of the wife against the husband.

10. Three separate judgments were delivered by the Full Court. It is not necessary in these proceedings to repeat in detail what was said on that occasion. Briefly, the Full Court took the view that in deciding the issues of cruelty and constructive desertion, insufficient weight had been given to the cumulative effect of the incidents referred to in the wife's cross-petition. Reference was made to Jamieson v. Jamieson(1) a decision of the House of Lords in which Lord Normand said:-

"..... I think that it does not do justice to the averments to take up each alleged incident one by one and hold that it is trivial or that it is not hurtful or cruel and then to say that cumulatively they do not amount to anything grave, weighty or serious. The relationship of marriage is not just the sum of a number of incidents ...."

On a review of the evidence it appeared to me, rightly or wrongly, that certain findings of fact had been made without evidence; and again, rightly or wrongly, I would myself have been disposed to have given more weight to certain remarks made by the husband on a number of occasions such as: "money can buy love; money can buy flesh." It seemed to me that such remarks, taken in conjunction with the admitted evidence relating to the husband's association with other women, should have been given very considerable weight in deciding whether the wife had reasonable cause to conclude that her husband had lost all respect for her and that he was, at the very least, contemplating having sexual relations with other women.

11. On the whole of the evidence, and bearing in mind that as regards all the main incidents, I felt, rightly or wrongly, that the wife's version should have been accepted, in my view, the wife should have been granted a decree nisi on the ground that the husband had treated her with cruelty and that he had also been guilty of constructive desertion.

12. Mills-Owens J. began his judgment with these words :-

"The evidence has been reviewed at length by Blair-Kerr J. and I agree generally with his conclusions."

He too would have been disposed to give far more weight to that portion of the evidence relating to the husband's attitude towards, and association with, other women. He said:-

"..... throughout the married life the husband exhibited tendencies, and, whatever his real intentions, professed intentions such that the wife was not obliged to continue in cohabitation with him. In particular, he made it clear to her that he considered that he had the right to disregard the sancity of the matrimonial bond, that he was free to resort to other women, bought women, whatever her objections, and to indulge himself thus whenever he felt so inclined. It is true that the wife's cross-petition makes no charge of adultery, nor is there any evidence of any act of adultery by him. It is the case, also, in my view, that the evidence is insufficient to show that he induced in her a reasonable belief that he had in fact committed adultery. Nevertheless the effect on the wife of his words and conduct are most material. In my view, on the occasion of the incident when the wife finally left the matrimonial home he must have known that his words and conduct, culminating in that incident, would in all probability have that result. No wife could be expected to accept the situation in which the respondent was placed, nor could any wife be expected to accept the obvious dangers to herself physically if his professed intentions were to be carried into effect, namely, assocation with women whose favours he might purchase. Whilst he may not have given her cause to believe that he had at any time...

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