Lau Pui Kwai v Lee Shue

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 20 OF 1968

(On Appeal from Divorce Jurisdiction Action No.3 of 1968.)

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JUDGMENT

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1. This is an appeal from a decision of Mills-Owens J. dismissing a wife's undefended petition for divorce on the grounds of cruelty.

2. The facts are very fully set out in the judgment of the learned judge. The parties were married on the 17th of April, 1964; the Petitioner was then 38 years of age and the Respondent 42. There are no children of the marriage but the Petitioner, who had been previously married, was a widow and had a daughter, born in 1956, who had been fully accepted by the Respondent as a child of the family. The Petitioner is now employed as a dish washer at a restaurant and the Respondent, when he was in employment, as a coolie or casual worker.

3. The learned judge described the main complaint of the Petitioner against her husband as being the fact that he was a lazy, shiftless individual who was fond of gambling and who did not provide her and her daughter with adequate means of support, with the result that she was forced to go out to work herself. The Petitioner stated that during the period from the date of her marriage in April 1964 until the date she finally left in July 1967, a period of some forty months, the Respondent worked in the aggregate for a period of only nineteen months - being something like half the time idle; and he never obtained a permanent job. But that, as the learned judge accepted, was not her only complaint. She complained that he was given to moroseness and anger. It appears that she had some savings derived from her previous marriage, amounting to a few thousand dollars. From time to time, the Respondent asked her for money, and when she declined to give him any part of her savings, not only did he sulk and refuse to talk to her, but he withdrew from marital relations with her until finally, in order to resume normal matrimonial relations, she succumbed and gave him money. Thereafter, their relations returned to normal until such time as he again asked her for money. This abnormal matrimonial relationship would last from three to four months until it returned to normality by her giving him money, and during the period they lived together this happened on three to four occasions, on each occasion for a period of some three to four months.

4. The learned judge described the Petitioner as "a strong healthy woman". He further accepted that she was "in general a witness of truth".

5. The Petitioner stated in evidence that the effect of the Respondent's conduct in refusing to speak to her over these lengthy intervals of time and his withdrawal from all sexual relationship with her, had a detrimental effect on her health and, as a result, she suffered from headaches and backaches. She consulted a doctor but was unable to locate him to come forward and give evidence on her behalf.

6. In July 1966, the Petitioner left the Respondent and lived apart from him for two months. During that period she made application to a magistrate for a separation and maintenance order and an order, consented to by the Respondent, was made on the 11th of September, 1966. However, before the making of that order, the Respondent had approached the Petitioner and persuaded her to return to live with him and she had, in fact, returned to live with him the day before the order was made. Thereafter, she continued to live with him for some time. On the 2nd of May, 1967, she told the Respondent that she had taken a job. He objected and threatened her. On the 6th of May, she endeavoured to leave the house early in the morning, taking her daughter with her. The Respondent endeavoured to prevent her and struck her, as she said, two heavy blows on the arm. She apparently reported the matter to the police and, as a result, she was examined by a doctor. The doctor, who was called to give evidence on her behalf, described the injury as a bruise, one by one and a half inches, on her right forearm. It is apparent that it was, in effect, a very minor bruise. Finally, she left the house on the 29th of July, 1967. As the learned judge stated, "her difficulty in getting away earlier was obviously due to her desire to take her heavy furniture with her. During that period the Respondent was in employment and, but for her wishing to take her furniture with her, she agreed that she could have left at any time when he was absent at work."

7. The learned judge took the view that there was no evidence of any real violence and nothing beyond the Petitioner's statement regarding her state of health. He said that there was no corroborative evidence of her statement that his conduct, in particular his moroseness and withdrawal from marital relations, caused any injury to her health. The learned judge further took the view that there were two main matters to consider: "the...