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FCMC 3861 / 2002
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MATRIMONIAL CAUSES
NUMBER 3861 OF 2002
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BETWEEN
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P |
Petitioner |
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L |
Respondent |
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Coram : Deputy District Judge S. D'Almada Remedios in Chambers (Not Open to Public)
Dates of Hearing : 18 – 20 & 22 September 2006
Date of Judgment : 27 October 2006
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J U D G M E N T
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1. The petitioner wife seeks an order for : -
(i) the continuance of a non-molestation order made firstly ex-parte on 10th May 2006 and then inter-partes on 1st June 2006 against the Respondent husband and
(ii) an order to ouster the husband from the matrimonial home situated in Repulse Bay, Hong Kong.
2. The husband, wife, their only son and daughter-in-law are presently residing together with a domestic helper in the matrimonial home.
3. Save for a period of approximately two years from April 2001 to September 2003 when the wife left the matrimonial home the parties have been residing together. The husband lived alone at the matrimonial home from April 2001 to September 2003. The wife returned to live at the matrimonial home in September 2003. From her return until today they lived together at the matrimonial home for approximately three years. The son returned to live there in 2004.
4. Whilst the wife was living separate and apart from the husband she filed the petition of divorce based on the ground of one year separation on the 15th April 2002. A decree nisi was granted on the 24th November 2003.
5. Two months after the wife returned to live in the matrimonial home, she did on the 23rd November 2003; make an application to the court for a non-molestation order and an order to oust the husband from the matrimonial home.
6. On the 24th December 2003 the husband gave a without prejudice undertaking to the court not to assault, molest or harass the wife until further order. The hearing for the ouster order was adjourned for argument with three days reserved for trial with various directions as to the calling of witnesses.
7. The wife took no further action on the ouster application and the parties remained living together.
8. After about two and half years since the husband gave his non-molestation undertaking, the wife, on 10th May 2006, once again applied to the court ex-parte for a non-molestation and ouster order. The application for the ouster order on 10th May was then withdrawn the following day as the wife subsequently restored the original ouster application made on 23rd November 2003 for ousting the husband from the matrimonial home.
9. Apart from the present divorce proceedings, the parties have since the year of 2002 been in contentious litigation against each other in the High Court.
High Court Litigation between the parties
10. Apart from the present divorce proceedings there are a number of actions in the High Court between the husband against the wife, son and various companies controlled by the wife and son and vice versa. One of these actions concern inter-alia the shareholding and directorship of the ‘T’ company which owns the matrimonial home.
11. Prior to 1999, the parties were the only two directors and shareholders of T. In January 1999, the shares were then transferred to other companies pursuant to a trust arrangement. As a result of such arrangement the son became and is the sole beneficiary. The husband sought to set aside the Trust Deed in the High Court and sued the wife, their son and other companies. Judgment in the High Court was delivered on 20th February 2006 dismissing the husband’s action.
12. Thus as the position now stands, the husband has no interest in the matrimonial home as he is no longer a director or shareholder of T. The husband is however appealing against the judgment and maintains that he has an interest in and claims his entitlement to remain in the matrimonial home.
Attempts of eviction of the husband from the matrimonial home
13. As long as about four years ago, T, the registered owner of the matrimonial home through its solicitors gave one month’s notice to the husband to terminate his licence to occupy the matrimonial home by a letter dated 23rd October 2002.
14. A year later, the wife applied to evict the husband from the matrimonial home by the application of an ouster order.
15. She now restores the application made in the year of 2003 to oust the husband from the matrimonial home.
The present hearing
16. The present hearing concerns the application made by the wife on the 10th May 2006 for a non-molestation order and the application made on the 23rd November 2003 to oust the husband from the matrimonial home. The husband opposes both applications.
17. Principally the wife relies on incidents that occurred on 30th September 2003, 2nd November 2003, 9th May 2006 and also some harassing and annoying behaviour by the husband in between those dates to support her application for a non-molestation and ouster order.
18. The wife says the husband has demonstrated his hostility towards her and has assaulted her. The husband denies misconduct or assault but if such conduct did take place the wife provoked those acts and or they were unintentional, out of character or an emotional outburst.
Circumstances of the wife moving back into the matrimonial home in September 2003 after her departure in April 2001
The wife’s case
19. The wife states that in about July / August 2003 the husband approached the son for the purpose of settling the disputes with the relevant parties once and for all. As the husband indicated that he wanted to have dialogue with her she decided to go back to the matrimonial home to discuss with the husband the terms of settlement.
20. On the 9th September 2003 she went back to the matrimonial home to discuss settlement with the husband. She was not then living at the matrimonial home. At that time she arrived there the husband was not home. She waited there until his return at about 2:00 am the next morning. She had brought his favourite soup as a friendly gesture to him. They had a very amiable talk until 5:00 am. Basically they reached terms of settlement.
21. On the same day but on the night of 9th September, their son, her husband and herself then met at the coffee shop of the R Hotel and had a drink. It was agreed that the parties would dispose of all the court cases provided the husband would leave the matrimonial home and surrender vacant possession to the son and her. The husband agreed that he would move out in three months.
22. However the next day the husband changed his mind and demanded the transfer of the matrimonial home to him. She turned down his request. She knew she had upset the husband.
23. On the 13th September her solicitors then received a letter from the husband’s solicitors alleging that she had disturbed him by returning back to the matrimonial home. Thereafter letters between her solicitors and the husband’s solicitors were exchanged informing the husband that she was moving back into the matrimonial home.
24. On or about the 22nd September she took some of her luggage and belongings back to the matrimonial home. At the same time she left a note on the dining room table saying that she was moving back into the matrimonial home on the 29th September.
25. On 29th September 2003, the wife moved back into the matrimonial home. Upon doing so she instructed her maid to remove all the husband’s belongings from the master bedroom which he was then using to another room. She had not told him she would be doing so. She however says she genuinely believed the husband would not mind letting her have the master bedroom as that was the bedroom she used to occupy when they were living there together but occupying separate bedrooms.
26. That evening she settled into the master bedroom. She closed and locked the bedroom door. Sometime later she heard a loud banging on the bedroom door that awakened her. Very shortly after the door was broken open. She then saw the husband there at the doorway and then he assaulted her.
The husband’s case
27. The husband admits to calling the son in July / August 2003 but stated that it was in relation to the son transferring all the shares purportedly under his name, to the husband. The son said he would discuss this with his mother.
28. When the husband returned home on the 9th September at about 2:00 a.m. he was shocked to see the wife in the matrimonial home as she no longer lived there. He said he then left the main door open and immediately invited her to leave. Surprisingly, the wife changed her usual arrogance and offered him some soup. She pleaded with him that everything could be settled. He informed her that any settlement negotiations should be conducted by the parties solicitors and invited her to leave again as it was very late and he was extremely tired. The wife however refused. She only left the matrimonial home at about 5:00 a.m. No settlement was reached.
29. On the 13th September, his solicitors wrote to his wife’s solicitors informing the wife not to intrude into his private life, his property and securities. He reserved the right to change the lock of the matrimonial home. The wife's solicitors replied stating that if he changed the lock he would have to give her a duplicate of the extra keys. In any event, he was informed in the letters that it was the wife’s intention to move back to the matrimonial property.
30. Letters were exchanged between the parties’ respective solicitors thereafter to the effect that the husband wished to exclude the wife from the matrimonial home but the wife insisted on her return.
31. On the 30th September 2003 when he returned to the matrimonial home he found the master bedroom door locked. This was the room he was occupying. He did not know what was going on as he never locked his bedroom door. He did not know that the wife had moved in. He knocked on the door a number of times but no one answered. He then tried to push open the door. He finally succeeded in pushing the door open. As soon as he did so, he saw the wife sitting on the bed smiling at him. A verbal exchange then followed. He never assaulted her.
The incident of 30th September 2003
The wife’s case
32. The wife states that in the morning of the 30th September 2003 she heard heavy bangs on her bedroom door. The husband then broke down the door. Upon entering the bedroom the husband threw a slipper at her. He further shouted at her demanding her to leave the house right away. She was scared. Slightly later the husband threatened her by raising his hand intending to hit her in front of the domestic helper when he was demanding the domestic helper to sign a document confirming she had removed all her belongings.
The husband’s case
33. The husband denies throwing a slipper at her or raising his hand in an attempt to threaten or assault her. He admits to pushing open the door.
34. The husband states that after opening the door, he asked the wife why she was there and why she occupied his bedroom. She replied that she would not allow him any opportunity to claim any property right of and in the matrimonial home. She said she had returned and would occupy the matrimonial home in order to retain her property right. She said he would end up with nothing and would kick him out the matrimonial home.
35. The wife told him that the maid had moved all his belongings into another bedroom. He then went and saw that his belongings were in a smaller room. He was very unhappy. He then asked the maid to confirm in writing that it was the wife who caused his bed and other belonging to be removed from the master bedroom to the smaller bedroom. When the maid was about to sign the document in confirmation, the wife looked at the maid fiercely. The husband then used his hand to block the wife’s fierce look from the maid.
36. It is his case that he never agreed to the wife returning to the matrimonial home nor did he know of the date or time that she was moving in.
Incident of 2nd November 2003
The wife’s case
37. Whilst the wife was lying on the sofa in the sitting room reading a newspaper, the husband approached her and asked her if she had the key to her room. She replied that she did and he demanded her to provide him with the key. She declined his request. At that time the husband appeared very annoyed. He left the house but returned a few minutes later. He then went over to her and purposely jumped heavily on her whilst she was still lying on the sofa. He then hit her body, head and arm with his bare hand causing her pain. He then left the house. He threatened her that if she did not move out of the matrimonial home he would hit her again. She called her son and they both went to the police station to formally lodge a complaint against the husband. She was sent to the hospital and stayed there under observation for two nights. The police arrested the husband.
38. Thereafter whenever the wife and husband were at home at the same time, the husband would make loud noises by banging the door and wardrobe to annoy her. He would stare at her with a fierce look. On 19th November 2003 he even raised his hand showing the gesture that he would beat her.
The husband’s case
39. The husband denies assaulting the wife or threatening her. The husband says that he slipped and accidentally fell onto the wife when he went to pick up some newspapers on the floor which was placed on the ground next to the sofa. He did not assault her and nor was this deliberately done.
40. The husband was tried in relation to this incident in the Magistracy on a charge of common assault on the wife but was acquitted in 2004.
Incident of the 9th May 2006
The wife’s case
41. The wife states that since the judgment was delivered dismissing the husband's claim in February 2006 the husband has frequently resorted to disturbing behaviour upon his return to the matrimonial home at night. He would slam doors loudly, and turn the radio and the TV on to a high volume.
42. In the early hours of the 9th May she heard someone knocking at her bedroom door. She thought it was her son and went to open the door. She found the husband standing there. He was looking fierce with his eyes wide open. She tried to close the door but was unable to do so as the husband pushed against it. She shouted for her son to help her. The husband then shouted at her asking who turned off his air-conditioner. She replied she did not. The husband then grabbed her clothes and pushed her head towards the wall and further pushed her backwards. As a result she knocked down the small light table and she, together with the table fell on the floor. She wanted to get up but the husband came towards her. She then noticed her son had come into her bedroom and stood between her and the husband. The son then pushed the husband away. It was then they started pushing and struggling with each other. She then went to the assistance of her son and pressed the husband down on the bed. She shouted to her daughter-in-law to call the police. The police arrived. Later she went to the hospital and was given some analgesic.
43. She was discharged at about 10:00 am on the 10th May with a neck brace. Since the assault she feels pain in her neck and head. She did not go back to the matrimonial home immediately but stayed in a hotel for a few days as she was fearful to return. Her son and daughter-in-law also stayed away from the matrimonial home.
44. On the 16th May she returned to the matrimonial home with her son and daughter-in-law. She hired a security guard to ensure the husband would not molest or harass her further. The security guard has been on duty in the matrimonial home during the hours the husband would usually be home since.
The husband’s case
45. The husband states that within a month or so prior to 9th May, the electrical power on the main fuse box, which controlled the power of the air-conditioner of his bedroom, was always switched off. Every night after he returned home he had to flip the switch on in the mains in order for his air-conditioner to work. He believed this was deliberately done by either the wife, son or daughter-in-law to aggravate him. However with a view to keep the peace and to avoid argument he remained patient and kept flipping on the switch every night for a month or so.
46. In the early hours when he returned home on the 9th May he again found that his air-conditioner was not working. He therefore went to flip the switch on the mains. Upon doing so he noticed that the switch was broken off and there was dry glue on the main part of the mains where the switch was. He made unsuccessful attempts to move the remaining part of the switch so that power could be supplied. Upon not be able to switch on the power he went to make enquiries from his wife.
47. He believed that his wife was connected to the deliberate damage of the switch and mains. As a result he therefore went to her bedroom to make enquires. He knocked on her door and asked her why she kept shutting off the power to the air-conditioner of his room and asked why did she cause damage to that part of the mains so that he could no longer have power to his air-conditioner. The wife denied she had done so and a quarrel arose. The wife shouted for the son to come over. Then an argument started between the son and him. The son pushed him and he pushed the son back. The two of them then had an altercation. Soon the police arrived. He was taken to hospital. He had sustained injuries to his eye, middle and digit fingers and suffered pain on his neck and waist.
The son’s evidence
48. The son gave evidence. He said in respect of the mains, that earlier that evening that had had a problem with the electricity going off in the matrimonial home. He then went to inspect the mains. Whilst there he noticed that a switch had broken off. He attempted to glue another object that was similar to the original switch onto the mains but it failed. Hence there was glue on the mains. He had no idea that the switch was the electricity supply for his father’s air-conditioner. His mother was going to call in someone to repair and check it the following day. So far as they could see there was no other part of the house that was affected by no supply of electricity.
49. In relation to the evening. He stated that he heard his mother shout. He immediately went to her bedroom. He saw the father grabbing his mother’s head and the two of them were struggling. He rushed towards his father and pushed him away to separate him from his mother. After he pushed the father away, the father immediately rushed towards him, pushed, scratched and shoved him. A struggle then ensued between them. He was taken to hospital. He suffered injuries to his right lower lip, face and neck.
50. Both the husband and son were arrested for the incident on the 9th May 2006. On the 19th June 2006, they attended Eastern Magistracy. They admitted facts. Both the father and son were bound over entering into their own recognizance to keep peace for 24 months and 12 months respectively.
The law
51. A non-molestation order should only be granted where there is some conduct which clearly harasses and affects the applicant to such a degree that the court’s intervention is necessary.
52. In respect of an ouster order, Section 3(1) (c) of the Domestic Violence Ordinance cap. 189 gives the power to the Court to exclude the husband from the matrimonial home.
53. Section 3 (2) sets out the criteria to be taken into account when the court is considering whether to make an order excluding a party from the matrimonial home.
54. Section 3 (2) states
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“that in the exercise of its jurisdiction to grant an injunction containing the provision mentioned in subsection 1 (c) and (d) the District Court shall have regard to the conduct of the parties, both in relation to each other and otherwise, to their respective needs and financial resources, to the needs of any child living with the applicant and to all the circumstances of the case.” |
55. It is clear to the court that the relationship between the husband and wife is tense. There has been and is much contentious litigation between them. They are not on speaking terms to each other. They avoid each other where possible in the matrimonial home. When the husband is in the matrimonial home the wife stays in her bedroom. The husband generally uses the matrimonial home for sleeping. He leaves at about 10:00 am and returns home in the early hours of the morning when the rest of the household are sleeping. He watches TV in the sitting room on his return in the early hours of the morning for a while then retires to his room.
56. The husband feels that his wife had encroached into his home which he was occupying peacefully and alone for at least two years. The wife considers it her right to live there.
57. The wife left the matrimonial home in April 2001 taking with her all her belongings even her bed. It is obvious when she made known her intention to the husband of her return to the matrimonial home in 2003 the husband was protesting. The wife knew of his strong opposition to her return. I find that the husband did not know of the date when the wife was intending to move back into the matrimonial home. Despite his objection, the wife returned. Even though she may have a right to return to the matrimonial home, I have no doubt that she would have known that her return to the matrimonial home would cause the husband grave discontent.
58. Despite knowing of the husband’s objection to her return and his discontent she astonishingly did not inform him of her intended occupation of the master bedroom to which the husband was occupying at the time. She stealthily removed all his belongings from the master bedroom to another room. I do not accept that given the fact that she knew of the husband’s objection to her return that she would believe that the husband would not have minded her occupying the room to which he was currently occupying. More so when she had not even the courtesy to ask or inform his first.
59. It is not surprising that the husband was aggrieved upon finding his bedroom door locked, the wife in his room coupled with the ejection of all of his belongings from his room. The wife’s actions were wholly inappropriate and inciting. Given the circumstances of their relationship at the material time, the wife should have dealt with the matter more sensitively and diplomatically. Instead she went in callously and antagonistically.
60. The wife knew that the husband was requesting for the transfer of the matrimonial home to him. She said when she refused his request, she knew she had upset him. On that basis she must have known that she was going back to live with the husband in tense and highly flammable circumstances.
61. If her intentions were to move in and live amicably or harmoniously with the husband, the manner she did so was not conducive to anything harmonious but confrontational. From the beginning of the re-commencement of their living together in September 2003, it had started on a wrong footing. She had effectively rubbed the husband the wrong way and caused sparks so to speak to begin. She had stoked the fire.
62. The husband’s exasperation in seeing her in his bedroom on the 29th September was understandable.
63. Solicitors were all along actively involved in the disputes between the husband and wife. No correspondence was exchanged between them after 19th September and before 8th November 2003.
64. Although there was correspondence exchanged on the 10th November there were no allegations of assault raised by the wife’s solicitors.
65. The first time the wife mentioned assault or violence by the husband was in a letter dated 17th November 2003 from the wife’s solicitors to the husband’s solicitors. I find it quite surprising that no mention of the assault was made until some 2 months after the alleged incident in September and some two weeks after the incident on the 2nd November. I am not satisfied that the incidents as described by the wife occurred in the manner she has described.
66. The husband did react by forcing open the door of the master bedroom on the 29th September. His reaction could not have startled her given the circumstances. Although I do not condone the incident of breaking down the door, it is understandable why the husband did so.
67. After the incident in November 2003, the husband gave an undertaking not to molest the wife. Since then the parties have been residing together for the past three years. On the wife’s case there has been no further threat of assault or assault by the husband.
68. After three years an incident on the 9th May occurred.
69. The husband had pushed then grabbed hold of the wife. I find that this incident arose from the husband’s inference that the wife was involved in the damage to the switch and the non-supply of power to his air-conditioner. It is reasonable for him to have a cynical inference that it was deliberately damaged as one would not expect to find glue on the mains even if a switch had accidentally broken off.
70. Ms. Lau counsel for the wife submits that it is wholly wrong and incorrect for the husband to come to the conclusion that the wife had done this deliberately or had played a part in it or even knew of it. She submits that it is wrong for him to blame or accuse the wife for anything that goes wrong in the flat or that it is being done to cause a nuisance to him. If he were to continue to think this way then it is more likely that arguments or altercations will happen in the future. For this reason the husband should be ousted from the matrimonial home.
71. Even if the husband had wrongly accused the wife for damaging the switch I find that was the reason why he had got upset. When there was a problem with the electricity earlier he was not at home. The wife did not inform him that there was a problem with the electricity that evening. She knew of one of the switches being broken. She would have known that somewhere in the house there was no electricity supply. She had checked the house she found no-where to be affected by no supply. The only room she could not check was the husband’s as his door was locked. Given these circumstances I would have expected a note should have been left to have informed him of the earlier electrical problem. Finding it as he did and not knowing of the earlier problem, it could lead the husband to think it was a deliberate act by one of the occupants. Particularly so when he shares the premises with people whom are not on speaking terms with him, whom he is in contentious litigation against and whom for the past four and half years have wanted him out of the house. His inference that it was his wife or son or someone who shares the house with him is in view of the background of this case not wholly flawed.
72. The husband’s outbursts in these incidents demonstrate that they do not arise from nothing. On each of these occasions something has happened to trigger him off. He is not of a violent character, despite living together for three years there have been no other significant incidents.
73. It is the husband’s evidence that he is hard of hearing and that he wears a hearing aid. He was wearing a hearing aid in court. None of the other persons in the matrimonial home knew of this as there is no communication between them. Given the husband’s hearing difficulties, there is a reason for the audible levels of the radio and TV to be on high.
74. Turning to the parties’ needs and financial resources. Despite the decree nisi being granted more than three years ago no further steps have been taken to proceed with the ancillary relief claims. The husband says he has been unemployed and has incurred much debt. There are allegations as to the husband’s sound financial status. On the evidence before me I am unable to make such finding. The husband has been residing at the matrimonial home all along, there is no evidence that he has other alternative accommodation save that he stays out overnight most Saturday nights. On the other hand the wife has shown she has had and was able to afford alternative accommodation.
75. There are effectively two households living in the matrimonial home. On the one side the wife, their son, daughter – in law and domestic helper and on the other the husband. The wife has now hired a security guard to ensure her safety since the incident of May 2006. The son says he moved in to protect his mother from the husband.
76. There is clear authority for the proposition that an ouster order is a serious one. It is Draconian, and it is only to be made in cases of real necessity.
77. In Wiseman v Simpson [1988] 1 All ER 245, CA the court stated that, in considering whether it is just and reasonable to make an ouster order it should have regard to the Draconian nature of such an order and, correspondingly, to be slow to make an order against the party who is not shown to have been at fault. The decision of the House of Lords in Richards v Richards [1984] AC 174 has established that none of the matters referred to in sub - section 1 (3) is paramount over any other.
78. The conduct of the husband does not justify the making of an ouster order against him. I find the incidents complained of were the result of the husband’s emotional outbursts or his hearing deficiency. The husband has made attempts to lead a life in a vacuum to the other occupants of the matrimonial home. I do not find his behaviour to be harassing or interfering. In respect to the incident on the 9th May 2006 I consider that the husband should have restrained himself from using any physical force on the wife. To ensure that the husband exercises physical restraint against the wife I consider that the wife could be protected by a non-molestation order against the husband.
79. In the circumstances I order that the husband be restrained from assaulting or threatening to assault or using or attempting to use any physical violence upon the wife.
Costs
80. In the present proceedings the wife has been only partly successful in the court’s granting of a non-molestation order. The order of the 1st June 2006 has not been continued in its entirety. She has failed in her application for an ouster order. The incidents referred to and the resulting clashes relied upon for the ouster order and the non-molestation order were not of a serious nature. Despite the wife’s application made in November 2003 for an ouster order no further steps were taken to restore it. She waited until some two and half years later to restore the ouster application and sought to rely on a number of incidents that had occurred from two and half years ago until recently to cumulatively booster her case. I consider the application brought by the wife in the circumstances of this case to be devoid of merit. In the circumstances, I make an order nisi that the wife do pay three quarters of the husband’s costs for the present applications. In the absence of an application by any of the parties to be heard on the order for costs, the order nisi is to become absolute on the expiration of 14 days.
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Deputy District Judge Susana D'Almada Remedios |
Representation :
Miss Selina Lau instructed by Katherine Y.W. Or for the Petitioner
Mr. S Yeung of Messrs Rowdget W. Young & Co. for the Respondent
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