LEUNG WONG YEE MAN v. LEUNG CHUN WAI AND ANOTHER

IN THE COURT Of APPEAL

1987 No. 113
(Civil)

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JUDGMENT

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Silke, V.-P.:

1. On 22nd July 1987, His Honour Judge Sharwood, in the District Court, pronounced a Decree Nisi in favour of the Petitioner/wife. He made a further order that that Decree he made absolute at the expiry of six weeks and matters of maintenance and custody were adjourned to Chambers for hearing on another day.

2. The husband/Respondent now appeals against that Decree.

3. There was a second named respondent who appears to have played no part in the proceedings below, or here.

4. The marriage took place on 24th April 1978 and there was one child of the marriage, a boy, born on 4th February 1980. The Petitioner alleged an irretrievable break down of the marriage based on the husband's behaviour, this going back to 1978 and particulars were set out. There was also an allegation of adultery hut this was withdrawn in the course of the proceedings.

5. The wife gave evidence and spoke of an assault in 1980 which occurred soon after the birth of the child. Prior to that there had been many minor disputes. After that, on her evidence, there were many further assaults. The families of both parties knew of them and the wife's family at one stage intervened and as a result of that intervention matters improved for a time.

6. The assault which finally caused the wife to leave the matrimonial home occurred in August 1985. She was, she says, struck on the chest, the arm and the leg by her husband with his fists.

7. She made a report to the police and she went to Princess Margaret Hospital for examination where she remained overnight. A medical report was introduced into evidence at a late stage of the hearing and this referred to a tenderness over the front and both sides of the chest with an abrasion over the right elbow.

8. This, as the trial judge said in the course of his judgment, tended to support her evidence rather than that of the Respondent. The husband was charged with and tried for the offence of common assault and he was acquitted.

9. In his own evidence the husband described the beatings which were stated to have occurred as being “just family disputes”. He accepted at one point that he had hit his wife - not with his fists hut with the palms of his hands - and this limited to the single occasion in August 1985. He changed that somewhat in the course of his evidence by saying that he put his arms around her because she ha broken a medicine bottle and that possibly, in so doing, his palms might have brushed her arms. He accepted that there was a serious dispute in 1980. He accepted that there were minor ones, by which I take him to mean the common minor "wear and tear" disputes within a family.

10. The trial judge considered the evidence given by both parties and considered the nature of the witnesses who gave it and the manner of its being given. He accepted that of the wife, who appeared very upset, frightened and had some difficulty in expressing herself. He came to the conclusion that she was essentially telling the truth.

11. The husband, who appeared before us in person as he did at the original hearing takes the point that the judge was wrong to believe the wife; that she had exaggerated her grievances; even going to the extent of fabricating grievances in order to obtain a divorce from him. Further, that the judge failed to consider the acquittal on the assault charge in 1985 and that he should not have gone the other way from that acquittal; that he should have considered the instances described by the wife as merely "family disputes" which I take to mean the ordinary wear and tear of married life.

12. The judge had carefully evaluated the evidence given by both sides and, in contradistinction to his view of the wife, he formed a “poor opinion” of the husband. Unless a judge is shown to be manifestly wrong in his evaluatiion of the evidence of a witness it is not for this Court to substitute its view or to invalidate his finding of facts.

13. As regards the acquittal in 1985 in the Magistrate Court, first the judge had full evidence before him and we are not aware of what exactly the evidence was before the Magistrate and, secondly, and possibly more important, the burden of proof is a different one. There is a much stricter burden of proof in criminal proceedings. He was concerned with the evidence which did stand before him. He was entitled to come to the conclusions he did.

14. The main issue, of course, in divorce proceedings of this nature is, as was said in O'Neill v. O'Neill(1) and adopted in this Court in Li v. Li(2) :

"Would any right thinking person come to the conclusion that this husband has behaved in such a way that his wife cannot reasonably he expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties?"

15. I speak in context of divorce proceedings brought on the ground of behaviour by one of the parties.

16. Having reviewed all the circumstances here in full and with completeness, the judge asked himself that question and answered it by saying the wife could not be reasonably expected to live with the husband. We can see no reason to interfere with his decision which was fully justified. The appeal is dismissed.