WONG TSEUNG SZE HAAU v. WONG KWAI HUNG

IN THE COURT OF APPEAL

1986, No. 137
(Civil)

_________________

_________________

J U D G M E N T

_________________

Cons, V.-P. delivered the judgment of the Court:

1. On the 5th September last year Judge Hansen, in the exercise of the divorce jurisdiction of the District Court, and on the Petition of Mr. Wong Kwai Hung's wife, decreed that their marriage be dissolved. Mr. Wong was not content with the decree and appealed to this Court.

2. On the 25th February this year his appeal was called on. Mr. Wong was not present. He had known that the appeal would be heard on that day since the beginning of January. Two days before the hearing he brought a letter to this Court saying that he was needed to do business in mainland China. Annexed to it was a letter from his firm saying that urgent matters had arisen. The letter gave no detail of those matters nor any explanation why Mr. Wong personally had to go. That was by no means the first occasion that he had asked a court to delay proceedings. In the course of the litigation many adjournments had been granted at his request. This Court dismissed his appeal.

3. He now applies to set aside that dismissal. In coming to our conclusion we naturally have to consider the merits of his appeal. These are set out in the Notice of Appeal. Basically Mr. Wong raises two points. Firstly, he suggests that he has not been given the reasons for the decision that went against him. However, he must know the reasons, for the record notes that the reasons were given orally at the time and Mr. Wong was present at that hearing. The reasons have unfortunately not been reduced to writing.

4. Mr. Wong tells us today that the judge said that the decision could be given other than according to the facts. We can only think he misunderstood the judge in that respect. He also tells us that the judge said that evidence was not required for the decision. But it is clear from his Notice of Appeal that the evidence there referred to was further evidence that Mr. Wong thought his wife ought to have brought. That was a matter for the wife. She must have brought what she considered necessary to establish her case and cannot be compelled to bring more. Moreover it was evidence that the judge believed.

5. That brings us to the second point of the appeal. Basically it is a complaint that the judge should not have believed the wife but should have believed Mr. Wong. Mr. Wong's suggestion at the trial was that what the wife said was completely untrue. He cross-examined and gave evidence to that effect. Obviously both the wife and Mr. Wong could not be telling the truth. The judge therefore had to decide between them. That is one reason why the judge is there. It is his duty to assess who is telling the truth and decide accordingly. This court will only interfere if it can be shown that the judge went plainly wrong. We see no reason to think that in the present instance he did.

6. These are the only two substantial points raised on the appeal. The Notice of Appeal also mentions that his wife had only been separated from him for nine months and five days by the time of trial. That has little importance. The Petition was not based on two years' separation but on the allegation that Mr. Wong's behaviour was such that his wife could not reasonably be expected to continue living with him. The reason that she had done so until then was explained in her Petition.

7. There are no merits in this motion. Were we to allow it and set down the appeal for hearing the appeal would inevitably fail. The motion is dismissed.