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Hui Shiu Wing v Cheung Yuk Lin

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date27 February 1968
Year1968
Judgement NumberCACV40/1967
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV000040/1967 HUI SHIU WING v. CHEUNG YUK LIN

CACV000040/1967

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CIVIL APPEAL NO. 40 OF 1967

(ON APPEAL FROM D.J. ACTION NO.52 OF 1965)

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BETWEEN
HUI SHIU WING Petitioner

AND
CHEUNG YUK LIN alias LORETTA CHEUNG Respondent

Coram: Blair-Kerr, J.

Date of Judgment: 27 February 1968

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JUDGMENT

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1. On 6th September 1965 Hui Shiu Wing (whom I shall refer to as 'the husband') filed a petition for the dissolution of his marriage with Loretta Cheung (whom I shall refer to as 'the wife') on the ground that she had deserted him without just cause. The wife was then engaged on a course of study in England; and the petition was served upon her when she returned to Hongkong some time during the summer of 1966. On 16th September 1966 she filed an answer in which she averred that she was not guilty of desertion and that she had good cause for withdrawing from cohabitation in that since the celebration of the marriage the husband had treated her with cruelty. She also cross-petitioned for divorce on the ground of his alleged cruelty to her and on the ground of constructive desertion by him in that by his conduct he had evinced an intention to drive her from the matrimonial home with the object of bringing cohabitation between them permanently to an end.

2. The petition and cross-petition were heard before Rigby J.; and, on 28th August 1967, the learned judge delivered an oral decision (which has since been transcribed, and it is before this court) in which he granted a decree nisi for the husband and dismissed the wife's cross-petition. From this decision, the wife has appealed on three grounds, namely:-

(i) the judge misdirected himself on the facts of the case and/or was wrong in his conclusion as to the credibility of the wife as a witness and in rejecting some of her evidence;
(ii) the judge was wrong in law and misdirected himself in holding that the husband's conduct generally and the injuries and anguish which he had caused to his wife on 30th August, 1960, on the 29th November, 1960, and on the 6th September, 1961 did not amount to cruelty and was not sufficient to drive the wife from the matrimonial home or sufficient cause for her leaving the husband;
(iii) the judgment was against the weight of the evidence.

3. The husband was described as quick-tempered, temperamental and highly strung, and the judge appears to have accepted this as an accurate description of him. In evidence, the husband said that during the three years prior to his marriage he had been taking a drug named Milltown three times a day to quieten his nerves and to induce sleep. Counsel for the wife intimated that he proposed to call a doctor, who is described in the record as a "psychologist" (the question whether this is a typing error for" psychiatrist" was not explored on this appeal) to give general evidence as to the effect upon the human body of tranquillising drugs. This doctor had not examined the husband. It is not clear whether counsel for the husband objected to the doctor being called as a witness. The judge's note records him as having said: "All (this doctor) would say is as to the possible effects in general of tranquillisers." How he knew what his opponent's witness was going to say is not clear. At any rate, without hearing what the doctor had to say, the learned judge ruled that the evidence of this doctor although strictly admissible, would be of no assistance to him in the determination of the issues before him; and he intimated that, if the witness were called, he would bear this in mind in the matter of costs. Upon hearing this, counsel for the wife said he would not call the doctor.

4. With the greatest respect, I entirely disagree with the judge's ruling in this matter. According to the record, he could not have known precisely what this doctor was going to say; and (assuming that the doctor had been accepted by the court as an expert in this particular field) if he had testified that the continued consumption of three tablets of Milltown per day over a prolonged period could not but have had a damaging effect on the nerveus system of a human being (no matter who the human being was), and if he had then testified as to the effect of such damage on human behaviour, it seems to me that the relevance of such evidence would have been unquestionable. It is not for this court to speculate, nor, with respect, was it right for the learned judge to speculate, as to what evidence the witness was going to give. Counsel had the responsibility for the conduct of the wife's case; and, in my view, he should not have been. "warned off" from calling such evidence as he considered relevant by a threat that the court might, irrespective of the result of the trial, penalise him in the matter of costs. If counsel wastes the time of a court by calling irrelevant evidence, his client may properly be penalised in costs. But no court can decide on the relevancy of evidence unless and until it knows precisely what that evidence is.

5. The parties, who are the off spring of wealthy parents, are Buddhists. The period of their courtship lasted for about three years. The wife testified that during that period the husband was kind and considerate to her; that they had quarrels over small matters; but that she had no reason to think that he was excitable and quick-tempered; and that, before marriage, she did not know that he was in the habit of taking tranquillising drugs.

6. There was a conflict of evidence as regards these matters. The husband alleged that the wife did know that he was taking such drugs; that she knew that he was temperamental and highly strung; and that they had quarrels before marriage. The judge has not indicated which of these two conflicting versions he was disposed to accept.

7. The parties were married on 29th October 1959 in the marriage registry in Kowloon, the husband being then 25 and the wife 22 years; and the marriage was consummated on 2nd November 1959. They have no children.

8. After marriage they lived on the first floor of a building in Osmanthus Road. The husband's parents lived on the ground floor. As a result of an incident which occurred on 30th August 1960, the wife left the matrimonial home and stayed with her parents. When she returned to the husband some six weeks later, the parties moved to another flat in Kadoorie Avenue. The wife finally left the matrimonial home during the early hours of the 29th November 1960.

9. In the cross-petition, there is a general allegation by the wife that, since the celebration of the marriage, the husband treated her with cruelty. She also alleges generally that he is a man of "ungoverned" temper, and that he habitually used violence to her. She also makes detailed allegations in regard to a number of incidents which occurred between the date of the marriage and 16th September 1961; and in paragraph 8, she alleges that, on many occasions, the husband "taunted" her. The paragraph reads:-

"(The husband) ........ on many occasions taunted (the wife) in terms that woman was cheap and that with his money he could have any woman he liked. His favourite phrase on these occasions was 'money can buy love; money can buy flesh.'"

In paragraph 11, the wife alleges that by reason of the husband's conduct she:

".......... suffered in health and by the summer of 1960 was very run down, jittery, and nervous and had lost weight."

10. The wife's allegations in para. 8 of the pleading were fully supported by her evidence. After she had concluded her evidence-in-chief regarding an incident in March 1960, the wife was asked this question by her counsel:-

"After this particular incident did you ever have any conversation with your husband about women?"

Her answer was:-

"Yes, he always taunted me. He often said 'money can buy love; money can buy flesh.' I felt very miserable."

She also said that during the incident which occurred on 30th August 1960, he told her that she could divorce him if she liked; and that he phoned her a few days later and asked her to divorce him; that during the incident on the night of the 28th-29th November 1960, he again said: "Woman is cheap; I can have any woman I like"; and that, on the same occasion, after making some sneering remark about the fact that she was taking French lessons, he said: "You can have as many men as you like if you go to the New Method College."

11. In regard to all this the learned judge has this to say:

"I think it more than probable that he did from time to time make offensive observations of this nature. But .......... in so far as it supports (the wife's) petition for divorce on grounds of cruelty or constructive desertion, or provides a good ground to the charge of desertion without reasonable cause, I attach no weight or importance to such evidence."

12. It is clear from the evidence that these so-called taunts were made when the parties were quarrelling. There is no suggestion that they were ever made in jest. I can understand how a man might, in anger, say to his wife during the course of a quarrel: "Divorce me if you like". But I find it difficult to imagine under what circumstances a man could tell his wife where she could "have" as many men as she liked, unless he had reason to suspect that she was associating improperly with other men and the remark was made in a fit of jealousy, or alternatively his marriage had virtually ceased to mean anything to him. Furthermore, if a man, otherwise that in jest, repeatedly says to his wife: "Woman is cheap, money can buy love, I can have any woman I like," it seems to me that a wife might reasonably conclude that her husband had lost all respect for her,...

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