Yung Ho v Tsang Wing Tong

Court:District Court (Hong Kong)
Judgement Number:DCCJ7546/1971
Judgment Date:30 Jun 1972

DCCJ 7546/1971




ACTION NO. 7546 of 1971



YUNG Ho (married woman) Plaintiff
TSANG Wing-tong (a male) Defendant


Coram: His Hon Judge D.A. Davies in Court

Date of Judgment: 30th June 1972


1. In this action, the plaintiff claims from the defendant maintenance for herself, and custody and maintenance of the children of the marriage of the plaintiff and the defendant.

2. The defendant opposed the claim in toto, and counter-claims that he should be granted custody of the two children of the marriage.

3. There is no dispute that the parties were lawfully married in Hong Kong on 23rd September 1967, and thereafter cohabited together.

4. The issue of this marriage are two children. TSANG Chun-bong, male, born on 11th August 1968, and TSANG Siu-ling, female, born on 31st August 1970.

5. It is noteworthy that neither party has included any prayer for a n0n-cohabitation clause. I assume from this omission that ultimately the parties contemplate divorce proceedings and advisedly do not desire a non-cohabitation order, which would effectively prevent the further running of any period of desertion, and would thus preclude the defendant from succeeding upon an allegation of desertion and the plaintiff from maintaining an allegation of constructive desertion, as grounds for divorce.

6. It is also apparent from the tenor of the evidence, that the plaintiff is not pressing very hard her claim for maintenance for herself. At present she is working and says that earns between $400.00 and $500.00 per month. This has not been challenged. The defendant has said in evidence that he at present earns $710.00 per month and this also is unchallenged.

7. The basic concern of both parties is very clearly the issue ofcustody of the children. The plaintiff’s claim is based upon the allegation that the defendant has been guilty of persistent cruelty towards her.

8. This allegation is of course highly relevant where an application is being made for a Separation Order, but where as in the present case, the main issue is custody of the children, such an allegation is of limited relevance, being confined only to the question of the fitness of the respective parents to have custody of the children. To this extent, and as the parties are at present, and have been since 31st May 1971, living apart, I am somewhat surprised that they did not decide to proceed under the Infants’ Custody Ordinance with a straight-forward application on the merits for custody of the children. In this way, the lengthy evidence and much of the mud-alinging which has characterized the present proceedings, might well have been avoided.

9. I must, however, deal with this allegation of persistent cruelty, since there is before me the plaintiff’s application for maintenance for herself and it is also a pre-requisite to the making of any order under the Separation and Maintenance Orders Ordinance, including any order for custody of children.

10. My first...

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