SHU WING LI v. YEUNG SIU LING, AMY

IN THE COURT OF APPEAL

1994, No. 42
(Civil)

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J U D G M E N T

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Penlington, J.A.:

1. This is an appeal from a decision of District Judge Gill refusing a declaration that the petitioner's marriage with the respondent was null and void at the conclusion of the hearing we dismissed the appeal and said we would hand down our reasons for doing so. This we now do.

2. The basis of this petition was that the petitioner did not properly consent to the marriage and secondly that the marriage had not been consummated owing to the incapacity of the petitioner to do so.

3. The evidence given by the petitioner was that the respondent had been his girl-friend, although they had never had sexual relations, and she had gone to live in Canada. In February 1991 he went to Canada to see the respondent, his purpose being to tell her that he could not marry her. However when he arrived he found that she had organised a marriage ceremony, with a registrar, for that very day at her home. In order to avoid a great loss of face to the respondent he took part in the ceremony. He said however he did not regard it as a real marriage in the absence of a proper Chinese wedding ceremony. After the marriage he returned to his hotel alone and left for Hong Kong some three days later. There were no sexual relations between him and the respondent following the marriage ceremony. He said that there was no physical disability which would prevent him having sexual intercourse with the respondent although he said that he was a homosexual. No medical evidence was called by the petitioner.

4. The judge found that the petitioner had given a proper consent to his marriage, albeit under somewhat strange circumstances, and he also found that the petitioner could not bring himself within s.20(2)(a) of the Matrimonial Causes Ordinance, Cap. 179 which provides that a marriage is voidable if it has not been consummated owing to the incapacity of either party to consummate it. He said he was not satisfied that such was the case. There was no evidence of any failed attempt.

5. We are satisfied that on the evidence before him the decision reached by the judge below was correct. If there had been evidence that the petitioner had a particular dislike for the respondent and although capable of sexual intercourse could not do so with her, there may have been some ground on the basis of a decision which was relied on by Mr. Mok. who argued this matter for the petitioner with conspicuous ability. That was D v. D, an unreported decision which is referred to in 1982 Family Law, Volume 12, 101. There an Indian girl of 15 years of age was forced into a marriage but she refused to have intercourse with her husband because of her "invincible repugnance" to doing so with him. There was no evidence here that such was the case.

6. We are satisfied that while clearly this marriage has failed and indeed it seems it never had any prospect of success, this was not a proper case for a decree of nullity. The appeal must be dismissed.