CHIU CHEE KAN, PETER v. CHIU KUNG TIEN MING, TAMMY

-----------------------------------------------

-----------------------

J U D G M E N T

-----------------------

Clough, J.A.:

1. This is the judgment of the court.

2. This is an appeal in divorce proceedings by the petitioner husband ("the husband") against the order on the 21st May 1991 by His Honour Judge Chism (as he then was), in the District Court, dismissing the husband's petition for the dissolution of his marriage to the respondent wife ("the wife") under section 11A(1)(e) of the Matrimonial Causes Ordinance (Cap. 179) on the ground that the parties to the marriage had lived apart for a continuous period of at least 5 years immediately preceding the presentation of the petition.

3. The husband and wife are now respectively 54 and 49. They were married in Texas on the 4th June 1966. The husband is of Hong Kong origin. His father had three wives living at the date of the husband's marriage. The first wife died in 1979. The husband is the son of his father's second wife. The wife is of Taiwanese origin. There is one child of the marriage, a son, Robert, who was born on the 20th October 1967. He was sent from Hong Kong to school and university in the United States of America during the period between September 1984 and June 1990. Apart from a short period between March and June 1968 when they resided in Canada, the parties at all material times resided in Hong Kong. The husband worked in his father's business until 1974 when he established his own business which involved a considerable amount of travelling, particularly to Korea and Taiwan. The wife has never worked during the marriage.

4. The following matters were common ground. From June 1966 to March 1968 (when they went to Canada) the parties lived together (with the husband's mother) in a flat provided by the husband's father at No. 2 Old Peak Road. The husband's father lived nearby with his third wife at No. 3 Old Peak Road. After returning from Canada the parties moved, towards the end of 1969, to another flat at No. 3 Old Peak Road where they again lived (as husband and wife) with the husband's mother, at least until the early part of 1970.

5. At this early point the common ground ended regarding the continued consortium (if any) between the parties. However it was common ground that the wife (and Robert) continued to reside at No. 3 Old Peak Road until August 1985 when they moved to a flat at No. 12 Po Shan Road where the wife resided at all material times thereafter. Whether and to what extent (if at all) the husband continued to live with the wife as husband and wife after the early part of 1970, and particularly during the five years immediately preceding the presentation of the husband's petition, on the 29th August 1990, was in issue between the parties in these proceedings.

The relevant law

6. The relevant provisions of the Matrimonial Causes Ordinance are sections 11A(1)(e) and (3) and section 15A(5) and (6) (respectively derived from sections 2(1)(e) and (5) and 3(5) and (6) of the Divorce Reform Act 1969) which provide as follows:

"11A (1) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts -..................... (e) that the parties to the marriage have lived apart for a continuous period of at least 5 years immediately preceding the presentation of the petition.

    (2) ...................................

    (3) For the purposes of this Part, a husband and wife shall be treated as living apart unless they are living with each other in the same household.

15A. (5) In considering for the purposes of section 11A(1)...... (e) whether ........... the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any period or periods together not exceeding 6 months during which the parties have resumed living with each other, but no period during which the parties lived with each other shall count as part .........of the period for which the parties to the marriage havelived apart, .....

    (6) References in this section to the parties to a marriage living with each other shall be construed as references to their living with each other in the same household."

7. Santos v. Santos [1972] Fam 247 (C.A.) is authority for the proposition that "living apart" in section 11A(1)(e) of the Ordinance involves more than mere physical separation for at least 5 years, because a petitioner under that provision cannot establish the relevant statutory sine qua non for a decree on the basis of irretrievable break down of the marriage unless he or she proves not only the factum of separation for at least five years, but also that he or she had ceased to recognise the marriage as subsisting and intended never to return to the other spouse (notwithstanding that such state of mind may not have been communicated to the other spouse).

8. Thus, in Santos, Sachs L.J., delivering the judgment of the court concluded at p.262H:

"It follows, in our judgment, there is nothing in the general scheme of the Act of 1969 nor in any of its specific provisions which results in the words 'living apart' not having in that Act the standard - one might say settled - meaning which they normally have in statutes relating to matrimonial affairs. Therefore, 'living apart' referred to in grounds (d) and (e) is a state of affairs to establish which it is in the vast generality of cases arising under those heads necessary to prove something more than that the husband and wife are physically separated. For the purposes of that vast generality, it is sufficient to say that the relevant state of affairs does not exist whilst both parties recognise the marriage as subsisting. That involves considering attitudes of mind; and naturally the difficulty of judicially determining that attitude in a particular case may on occasions be great." (Emphasis supplied)

At p.263G Sachs L.J. observed:

"It will be essential in this, as indeed in all cases under heads (d) or (e), where a physical separation starts on a voluntary basis, for the judge to examine closely exactly how the separation originally came about; what the petitioner's attitude to the marriage then was; and whether he is satisfied that then or at some and what later stages she ceased to recognise and continued to cease to recognise the marriage as subsisting, but on the contrary regarded it as in truth a mere shell, intending never to return to her husband."

9. As to the expression "living with each other" in section 11A(3) (and in section 15A(6)) we respectfully adopt the view of Lord Denning M.R., with which Stamp and James L.JJ. concurred) expressed in Fuller v. Fuller [1973]1 WLR 730 (C.A.) at p.73E-F with reference to section 2(5) of the Act of 1969, that the words in question are to be interpreted as meaning "living with each other as husband and wife". Lord Denning went on to distinguish on its facts Mouncer v. Mouncer [1972]1 WLR 321 (a decision of Wrangham J. emphasising the effect of the words "in the same household") by saying, at p.732F, of Mouncer that it was a case:

"....... where the husband and wife were living with the children in the same household - as husband and wife normally do but were not having sexual intercourse together. That is not sufficient to constitute "living apart". I do not doubt the correctness of that decision. But the present case is very different."

10. The same expression ("living with each other"), then contained in section 2(5) and (6) of the Matrimonial Causes Act 1973, received the consideration of the English Court of Appeal in Piper v. Piper (1978) 8 Fam Law 243. In that case the spouses had separated and sold their house in 1970 thereby, as the court concluded, bringing their consortium to an end. However the husband had thereafter made frequent visits to the wife and spent week-ends, and sometimes several nights a week (including a whole week on three occasions) with her. Between January and May 1975 the husband had lived with the wife continuously for four and a half months. Sometimes the spouses had had sexual intercourse during these visits. He stopped visiting her in September 1975 and applied for a divorce under section 1(2)(e) of the Act of 1973. The wife denied the separation but the judge found in favour of the husband and that decision was upheld on appeal.

11. Ormrod L.J. (with whom Stamp and Bridge L.JJ. agreed), having referred to Santos, had this to say at p.243 about the resumed relationship between the spouses:

" Were they at that time living in the same household? All their Lordships had was that these visits were frequent and that sometimes sexual intercourse took place between them. The judge who heard the whole case and saw the parties and heard the wife's evidence concluded that the right way of describing the relationship between them in this period was that the husband was visiting the wife; the phrase the judge himself used was that he was 'visiting' her on a number of occasions, retaining his own room or flat or whatever it was and simply coming as a friend - intimate friend - of the wife. Could they be said, in ordinary language, to be 'living together' at such weekends leaving out the question of the same household? For his Lordship's part he would say no, they could not be said to be living together in the sense in which that phrase was now almost universally used if he were merely visiting at weekends. If he was really making his home in the wife's flat but spending the middle of the week in his own room somewhere else for some understandable reason then it would be easy to infer that they had re-established the relationship of husband and wife and re-established the consortium. But the judge came to the conclusion that that was not the correct view and that the right way of looking at this case was that the husband was paying many visits to the wife. Consequently he held, as he was bound to hold, that they were maintaining two separate households. In these circumstances there was only one possible conclusion, namely that the husband had established his case."

12. Fuller was not cited to the judge in the present case, but all the other cases mentioned above were cited to him. However we regard the approach adopted by the court in Fuller as wholly consistent with that adopted in Piper, albeit in different circumstances.

The pleadings

13. The husband's pleaded case in his amended petition was to the effect that the marriage had broken down irretrievably, that he had moved out of the matrimonial home in about 1968 or 1969 and that the parties had not cohabited since then.

14. In her answer filed on 19th October 1990 the wife denied the alleged irretrievable break down of the marriage or that the parties had lived apart as alleged in the petition. In paragraph 3 of the wife's answer she listed the addresses at which she alleged the parties had cohabited at all material times, namely (i) No. 2 Old Peak Road from June 1966 to March 1968, (ii) an address in British Columbia from March to June 1968, (iii) No. 3 Old Peak Road from June 1968 to July 1985 and (iv) No. 12 Po Shan Road, Hong Kong ("Po Shan Road") "since July 1985 to date." In paragraph 4 the wife pleaded that during the five years immediately preceding the presentation of the petition the parties had cohabited at Po Shan Road which had been purchased by the husband in 1984 and was owned by him.

15. There followed allegations in support of the wife's case that cohabitation had not determined as alleged by the husband. It was pleaded that Po Shan Road had been reported to the Registration of Persons Office as the husband's residential address (paragraph 5) and that in his application to the United States Consulate General for an immigration visa he had stated the addresses pleaded in paragraph 3 to be his places of residence since 1968 (paragraph 6). The wife alleged that the parties resided at Po Shan Road where the husband kept the major part of his belongings, including suits, clothes, ties, other accessories and statues of Buddha (as proof of his Buddhist faith), although he had ceased to return home to sleep since June 1990. (Paragraph 7).

16. In paragraph 8 (which contained 23 sub-paragraphs) the wife specified numerous major social and family events in which the parties had participated together between 1968 and the date of the pleading, including the celebration of Valentine's Day in 1988 at the Hong Kong Hilton. Fourteen overseas trips were listed in paragraph 9 (allegedly among many others too numerous to be enumerated) as being mainly holiday trips on which the husband had taken the wife. The answer concluded with allegations of grave financial or other hardship which are not now material.

17. In his amended reply the husband spelt out his particularised allegations in support of his case and in reply to the allegations in the wife's answer to his petition. He pleaded in paragraph 1 that in or about 1968 or 1969 he had formed the intention to live separate and apart from the wife and that the parties had in fact lived separate and apart since that time. In paragraph 2 he pleaded inter alia that some time in the second half of 1968 or 1969 after the parties had returned to Hong Kong from Canada and had moved to No. 3 Old Peak Road, the parties had a quarrel over the husband's relationship with Teresa To Siu-Lun. He further alleged that the result of the quarrel was that he took a suitcase containing his clothes and personal belongings and left the matrimonial home by the back staircase. Since then, the husband pleaded, the parties had not cohabited as husband and wife. The husband alleged that he had thereafter repeatedly mentioned a divorce to the wife but, as she had strongly objected, he had not taken any proceedings until the issue of his petition.

18. There followed, in paragraphs 3, 4 and 5, an outline of the husband's alleged subsequent cohabitation with three other women successively, namely Teresa To, Cindy Li Mi Har and "another lady" i.e. Cheung Yeuk-lee. He alleged that he cohabited with Teresa To at three specified addresses between the second half of 1968 or 1969 and 1983. The last address was alleged to be a flat at Parkview Court, No. 1 Lyttleton Road, Hong Kong (owned by a company controlled by his father) where he claimed that he had lived with Teresa To from 1972 to 1983. During his cohabitation with Teresa To he had, he pleaded, adopted two daughters of her sister and had paid all their expenses and their utility accounts which were in his name.

19. The husband alleged that his relationship with Teresa To terminated in about 1983 "by reason of" his relationship with Cindy Li which had begun in about 1975-6. He further alleged that at the break up of the relationship with Teresa To she and the husband entered into a separation deed upon which she subsequently sued him in about 1988 in proceedings in which she had alleged, and he had not denied, that they had cohabited.

20. According to the husband's pleading, in paragraph 4, after his relationship with Teresa To broke down, he moved out of the flat at Lyttleton Road (leaving Teresa To there) and began cohabiting with Cindy Li. He alleged that he cohabited with her at five specified flats, three of which were purchased by him in her name and two of which he rented in his own name. There were, he pleaded, two daughters (whom he named) born of this relationship who were born on the 3rd September 1983 and the 7th August 1985 respectively. The husband alleged that his cohabitation with Cindy Li terminated in about 1988.

21. In paragraph 5 the husband pleaded that after that and until the date of his pleading, he had cohabited with Ms. Cheung, initially at his office flat in Central and subsequently at a flat in Pokfulam Road which had been purchased in her name. The husband accordingly contended, in paragraph 6, that the parties had not cohabited as husband and wife since about the second half of 1968 or 1969 and that the wife resided on her own in the Po Shan Road flat which he admitted he had purchased in 1984.

22. As regards the additional matters contained in the wife's answer, the husband pleaded, in paragraph 7 of his amended reply, that he had inadvertently omitted to report any change of his address to the Registration of Persons Office. In paragraph 8 he pleaded that the wife had been the chief applicant for the United States visa and that he had merely supported her application by signing the forms completed by her. In paragraph 9 he alleged that the clothing and accessories at Po Shan Road had been left behind by him in 1985. He pleaded that the statues of Buddha in the same premises did not belong to him and that he had no religious belief.

23. In the same paragraph the husband admitted that he had spent two or three nights at Po Shan Road when the parties moved in in about June 1985. He also admitted having spent two or three nights there (sleeping in a separate bedroom from the wife) in 1988 at the suggestion of Ms. Cheung while she was in Beijing. He pleaded that apart from those occasions he had not slept in any flat occupied by the wife since he left her in 1968 or 1969 and that the last time he had had sexual intercourse with her was in 1988 during the time he had spent in Po Shan Road.

24. The husband admitted the participation of the parties in most of the social and family events pleaded by the wife in paragraph 8 of the answer. He also admitted the overseas trips pleaded in paragraph 9 of the answer but alleged that during the trip to Beijing in June 1986 (referred to in paragraph 9(j) of the answer) the parties had stayed in different hotels and that during the trip to Berkeley, California in May 1990 (referred to in paragraph 9(n) of the answer), to attend Robert's graduation ceremony, the husband had been accompanied by Ms. Cheung with whom he had shared a hotel room, whereas the wife had stayed in a Buddhist temple.

25. In her rejoinder filed on the 6th December 1990 (before the husband's reply had been amended) the wife joined issue with the husband on his general allegation, in paragraph 1 of his reply, that he had in 1968 formed an intention to live separate and apart from her and had in fact done so since that time. She denied (in paragraph 2 of the rejoinder) knowledge or the truth of the husband's allegations in his reply concerning Teresa To, Cindy Li and Ms. Cheung, save for the matters admitted by the wife in paragraphs 3 and 4 of her rejoinder.

26. In paragraph 3 the wife admitted that in about 1974/75 she suspected that the husband was having an affair with another woman. As a result her father Mr. Peter Kung asked the husband to arrange a meeting with the woman in question (Teresa To). The wife further pleaded that Teresa To admitted at the meeting that she was having an affair with the husband, whereupon Mr. Kung reprimanded her and asked her to leave the husband. The wife alleged that notwithstanding his relationship the husband did not leave the matrimonial home nor did he mention divorce between the parties.

27. In paragraph 4 of the rejoinder the wife admitted that the husband had once asked her for the "graduation certificate" of their son Robert to enable a child to apply for admission to school. The wife alleged that she had refused the husband's request and that she had made no enquiries about the child.

28. Apart from paragraph 7 the remainder of the rejoinder consisted substantially of denials of matters alleged in the reply or allegations of no major importance regarding the husband's pleading in his reply concerning the admitted social and family events and the parties' overseas trips mentioned in the wife's answer. In paragraph 7 of the rejoinder the wife asserted that the husband had purchased the three statues of Buddha (one of them being originally a gift for his father) at Po Shan Road and that the husband's assertion that he had only spent two or three nights at home since 1968 was untrue. The wife's pleading in paragraph 7 concerning the husband's clothes at Po Shan Road (not having been left by the husband in 1968) and the last time (in 1988) the parties had had sexual intercourse was admitted by subsequent amendments to the reply.

The evidence

29. At the trial the husband gave evidence and called Teresa To, Cindy Li and Miss Cheung. The wife gave evidence and her witnesses were her father (Mr. Kung) and her maid Julie Floresca. It suffices for the purposes of this appeal to give only a bare outline of the central core of the voluminous evidence which comprises 536 pages of the judge's record.

30. The husband was not a reliable witness on dates. This court was informed by his leading counsel Mr. Gilbert Rodway Q.C., that it was accepted on the husband's behalf (as it had evidently been accepted at the trial) that the parties had not moved in to No. 3 Old Peak Road until the 25th December 1969. The husband's evidence was that he left the wife about three to six months later, which would have been some time in the early part of 1970. According to the husband, at that time the parties had had an argument over his affair with Teresa To. He had packed his clothes in a suit case and left by the back stairs, thereafter living with Teresa To until early 1984. His evidence was confused about the precise period of time that he had lived with or visited Cindy Li (by whom he had two daughters born on the 3rd September 1983 and the 7th August 1985 respectively) after that. In particular he gave evidence about living in the Excelsior Hotel for some months in 1984 and 1985 and about living in his office flat in the Korean Ginseng Centre.

31. If his evidence were to be believed he had bought the Po Shan Road flat in 1984 but had only spent two or three days there (occupying the same bed as his wife who had moved in) at the time that Cindy Li was pregnant with their second daughter (born on the 7th August 1985). He said he had met Ms. Cheung in 1987 when he was living with Cindy Li and their two children and became intimate with Miss Cheung in the spring of 1988. His evidence was that he left Cindy Li "around Christmas" 1988 and moved to his flat in the Korean Ginseng Centre. He admitted, as pleaded, that he had gone back to Po Shan Road for a few days at the instigation of Ms. Cheung who feared he might return to Cindy Li and wanted to call him by telephone from Beijing. He could not say what month this happened but his evidence was that he had thereafter returned to Cindy Li for two or three months before leaving her at the end of 1988. According to the husband he had slept in his son's room during this stay at Po Shan Road and had had intercourse with the wife on one night at her instigation when he was drunk.

32. The husband's evidence was that Ms. Cheung (who had had been deported from Hong Kong to China in 1988 after being convicted - as was the husband - for committing passport offences) had come to Hong Kong a few days after the Lunar New Year in around February 1989 and they had lived together since then initially at his office flat in the Korean Ginseng Centre and, subsequently, after six or seven months, at a flat in Pokfulam Road.

33. Teresa To gave evidence under subpoena. According to her she had lived with the husband between 1970 and March or May 1984. This witness disclosed yet another relationship of the husband (which she discovered in July 1983) with a Korean woman who had borne him a child. Teresa To claimed that she and the husband had met in about 1969 when she was living alone in Hillwood Road. She said she did not know he was married until 1970 or 1971. Her evidence was that they had rented and lived in a 90 square foot room in Granville Road (leaving some things in Hillwood Road) in 1970; moving at the end of 1971 to premises in Windsor Mansion, Chatham Road comprising 300 square feet. Her evidence was that they moved to Parkview Court in Lyttleton Road in March 1974. She was still living at that address at the date of the trial.

34. According to her the husband had lived with her until March 1984 after which he "lived outside" for a time. She had not, she said, lived with him since May 1984. Her evidence was that she had known by July 1983 that he had other women and that later she had accidently discovered a rate demand relating to other premises which resulted in her finding out about Cindy Li. The sequel to her discovering these infidelities of the husband was the execution by them of a deed of separation dated the 3rd November 1983 to which Teresa To referred in her evidence. Under cross-examination she said the deed was executed at her instigation and that she had sued him in 1989 for his default in making payments thereunder. She also admitted that there were disputes concerning their companies which had resulted in her bringing an action against the husband and his firm and six companies in 1989. Neither of the actions has been settled. She said she had became involved in the husband's business from 1972. She told of meeting the wife at the Hong Kong Hilton at a pre-arranged meeting at which the husband told the wife he wanted a divorce. She spoke of the 1974 meeting with the wife, Mr. Kung and a Buddhist professor (a friend of the family) and said she had told Mr. Kung and the professor that if the husband wanted to leave she would not make him stay - it was up to him, but they did not separate afterwards, although nothing came of the husband's consultation with a lawyer about divorce.

35. Under cross-examination she said that when the husband was not travelling he had slept all night with her when they were living in Granville Road. She expressed shock when asked if she would be surprised to know that the wife would suggest this was not the case.

36. Her evidence was that when they were in Parkview Court the husband had come home every night      when he was not travelling on business and she had gone with him most of the time both for business and pleasure. Asked in cross-examination about what time the husband returned when he claimed to have been entertaining business associates, she said that before March 1984 they had a tacit agreement that he would return not later than 2 am. Under re-examination Teresa To said "Impossible" when it was put to her that it was being suggested on the wife's behalf that between 1974 and 1984, when she was at Parkview Court, the husband had been living at Po Shan Road and other addresses.

37. It was put to her in cross-examination that the wife, and not she, had attended a reception in 1974 to commemorate the pending incorporation of the Korea Ginseng Centre Limited (in which the husband and Teresa To were together beneficially interested) and that this was because the husband did not want his important business associates to know that Teresa To was his mistress. She replied that she had known in advance abut the reception and that the guests had included the husband's father. She said that the husband did not "tell me to go and attending (sic) or not" and that it did not matter to her, the main thing was, she said, that they had the business. As to the question of embarrassment, in this matter, she said that she was called "Mrs. Chiu" by all the people she knew "including people, in company, people outside who had business dealings with us, people with association with our business.....".

38. Teresa To's evidence was that she had had a miscarriage in 1975 when carrying the husband's child and she told of the adoption in 1979 in China, by her and the husband, of her sister's two daughters (than aged 10 and 8 respectively) who came to live in her home in Parkview and were educated out of money provided by the husband. According to her evidence under cross-examination she got on well with the husband's younger brother and sister. She said that the husband's mother often came to their home in Parkview and that she came regularly to see Teresa To when she was in hospital after her miscarriage.

39. Cindy Li was evidently a very reluctant witness. She did not respond to her subpoena and had to be brought to court under warrant of arrest. She gave evidence of meeting the husband in 1974 or 1975 and of being visited by him in premises where she lived, the husband paying the rent. She spoke of him initially as arriving in the evening and staying a few hours, not staying the night and leaving at hours varying between 10pm and midnight. She referred to the two children she had born the husband. According to her evidence between mid 1986 and early 1988 the husband was living with her continuously (when not travelling or spending a few days in hotels) in premises provided by the husband, initially at 17 and later at 18C Victoria Mansion, 52 Hing Fat Street, Causeway Bay. She spoke of the relationship worsening in early 1988 and of the husband ceasing altogether to live with her in June 1988.

40. The evidence of Ms. Cheung, who was of Beijing origin, was that she had met the husband in the autumn of 1987 in Shenzen when she discussed business with him. She started helping him in his business with China soon after that and went with him in 1988 to the United Kingdom and other countries for 14 days in connection with the husband's business. It was on their return that they were arrested and prosecuted in June 1988 for passport offences.

41. According to Ms. Cheung her relationship with the husband became intimate around April and May 1988, about six months after she first met him. At the time of the trial she was expecting his child which was due in May or June 1991. She said that when she returned to Hong Kong on the 12th January 1989 (later in her evidence in chief she said this was in February 1989) she stayed in the husband's flat in the Korean Ginseng Centre where they lived for two or three months before moving to the flat in Pok Fu Lam Road which was in her name. She had, she said, travelled about with him after her "year of not being able to travel was up". She added that "He went once during that year but apart from that he [has] was not spent a night away. We share the same bed."

42. Ms. Cheung said that she had known, within a few months of knowing the husband, that he was married and that his wife lived in Po Shan Road. He had, she said, told her that he lived with his girlfriend Cindy Li in Victoria Mension and had at the end of 1987 given Cindy Li's telephone number to Ms. Cheung for contact purposes, where she had called him. Her evidence was that she had once rung the husband at his wife's place where he had gone for three days or so when be left Cindy Li. According to Ms. Cheung the husband had gone back to his wife's place on her advice, given after he had told her he had been separated from his wife for 20 odd years and was going to live by himself. Ms. Cheung's evidence was that she had advised him to try to live with his wife but, after going back, he had rung her and told he could not continue to live there and was moving out. She said that after that she rang him at the Korean Ginseng Centre from October 1988 until she came in February 1989.

43. Ms. Cheung was cross-examined at length about matters which were evidently directed to her general credibility. These included her use of different names and her use of illegal passport documents, her alleged marriage and divorce in China and involvement with the Security Bureau in Beijing (both of which she denied and neither of which were substantiated against her), her alleged quarrels with Cindy Li on the telephone and her ulterior motives in pursuing the husband. It was put to her inter alia (and denied by her) that she had caused Teresa To to be ejected from the directorship of one of the husband's companies and had acquired her share and other shares of the husband in that company by nefarious means, that she had done all she could to ensure that the husband should have no further connection with the other women in his life (with particular reference to Teresa To and Cindy Li) and that it was at her instigation that the husband had commenced these proceedings against the wife.

44. Ms. Cheung's evidence (in support of the husband's evidence) that she had lived with the husband from the 12th January, or from February, 1989 to the date of the trial was never directly challenged in the course of her lengthy cross-examination. It is not therefore surprising that Mr. Rodway for the husband (who had objected to the wide range of the cross-examination of Miss Cheung) is recorded as declining to re-examine her at all on the ground that - "..... no challenge on cohabitation 12 February 1989 to to-day over 24 months."

45. The wife's evidence, if it were to be believed, supported her pleaded case. She said that from the end of 1971 the husband used occasionally to spend the night out and that before that, from 1969, he had started "socialising" on his own until late at night for business purposes, informing her in advance. She denied under cross-examination that the husband had left by the back door in 1969 after arguments about Teresa To and that that was the last time the parties had lived together in the full sense of those words. She also denied that she knew about Teresa To from then onwards. From 1971, she said, he stayed out all night about one night a week. In about 1972 he started staying out about twice a week, saying that he did this for the sake of his father's business. She became suspicious. According to her by 1974 he was sometimes failing to return three or four times a week, saying it was nothing more than "socialising".

46. The wife's evidence was that when her father, Mr. Kung, came on a visit from Thailand in 1974 she told him of her suspicions about the husband. She denied under cross-examination that at this time she told her father of a continuing affair with Teresa To. She also denied that she had at that time known that the husband and Teresa To had been living together for five years. When it was put to her that Teresa To's evidence had been that when the husband had been in Hong Kong he had slept with her seven nights per week, the wife said Teresa To was lying.

47. She said in chief that her father arranged with the husband for Teresa To to attend a meeting with them and a family friend, Professor Lee Yuen, at a coffee shop. At the meeting both Mr. Kung and the professor tried to persuade Teresa To not to break up the family and told her the family would not allow her to bring up Robert, which Teresa To said she wished to do. According to the wife she said at the meeting that she would never ask for a divorce and that the family was prepared to pay Teresa To compensation. The matter was left there by Mr. Kung (who had to return to Thailand) on the basis that the professor was to deal with any subsequent problem.

48. The wife said that she gave the husband time to "sort it out" but that he continued to stay out three or four nights a week and his attitude did not change much. There was, she said, a slight improvement in 1978 or 1979 when his grandmother died. He showed concern, but sometimes he would "come back" for a few days in a row and then would "stay out".

49. Her evidence was that in 1978 (prior to his grandmother's death) the husband was convicted of assaulting her in an incident at the Korean Ginseng Centre (the husband's place of business) involving the husband, Teresa To and Robert who had called Teresa To a "bad girl" in front of the office staff. According to the wife's evidence under cross-examination she was living with the husband in the autumn of 1978 "as usual", by which she meant "sometimes good sometimes bad". She said at this time he was spending three or four nights a week at her home when he was in Hong Kong.

50. The wife's evidence was that from this time until 1983 or 1984 the relationship between the parties seemed to have improved. The husband's business had, she said, run into difficulties in 1979 to 1980 which continued until about 1985 (when his father gave him substantial financial assistance), he developed suicidal tendencies and spoke to her a lot. She said that in about 1984 he had to ask his relatives for money to pay his creditors whom he sought to avoid by keeping away from his office and living in the Excelsior Hotel where he stayed for six to 9 months. She was not sure of the exact period (which seems not to have been continuous) but bills produced in evidence certainly indicated that the period must have included the 5th March to at least the 25th June 1985.

51. According to the wife she was given a key to the husband's room at the Excelsior Hotel and spent several nights a week there. She said that when Robert came back on holidays he sometimes stayed there overnight. Asked in cross-examination how often she had thus visited and stayed the night with the husband in the Excelsior Hotel she said it was not every day but three times a week. Under cross-examination the wife said that during this time the husband did not often go to No. 3 Old Peak Road because he did not want his creditors to find him there, but she said that occasionally, about three times per month, he let a friend stay in the hotel and came back to Old Peak Road.

52. The wife spoke of the purchase of the Po Shan Road flat by the husband (in 1984) and of the parties and Robert all moving in there together in 1985. She said she had lived in Po Shan Road ever since. As to Cindy Li, the wife's evidence was that the first she knew of her was when, at the end of 1988 (after the husband had asked the wife for Robert's graduation certificate) the wife's mother in law had told her that the certificate was wanted by Li for her child by the husband.

53. It was common ground that the husband and Ms. Cheung were arrested at Kai Tak airport on the 11th June 1988 and that on the 30th June the husband pleaded guilty to passport offences. The wife was away on a trip to china at the time and said she was told, on her return, by her maid that three or four men had come to search the flat. The wife's evidence was that the husband was very ashamed of his offence involving use of a forged passport and he knew a lot of people looked down on him. She said that after this case the husband seemed nicer to the family and came home every day and earlier. According to her this improved behaviour lasted six months and their relationship improved. They had sexual intercourse more often, the last time being around the end of 1988.

54. According to the wife's evidence, in early 1989 the husband again started to return home less often, saying that he had to repair his career as all his friends looked down on him (after the June incident) and that he had to make frequent trips to China to which he said he went two or three times per month for a week each time roughly. She said she supported him by spending time and effort helping him.

55. As to Ms. Cheung, the wife's evidence was that she had been introduced to her at his office in 1987 as his partner in the metal trade. In 1989 and 1990 the wife had, she said, travelled a lot to the United States because her father had settled there and she went there every six months to maintain her residential status following immigration approval granted in 1988. She said that in 1989 her mother in law had warned her that the husband had often been seen with Ms. Cheung and, the wife said, by the end of 1989 she suspected something was going on between them because of the way they talked and behaved at the husband's office. The husband had, she said, denied a relationship with Ms. Cheung and at first she had believed him. The wife also said that in 1989 the husband had told her that he wanted to concentrate on his business and that when he was not travelling he would be in his flat at the Korean Ginseng Centre. She said she did not go to the flat but telephoned him.

56. In May 1990 the parties went, travelling separately, to Robert's graduation ceremony in the United States. The wife's evidence was that in 1990, until that event, the husband had come home less often, only about once in two weeks. She said he was travelling a lot and she spent more than three months in the United States so she rarely saw him at home. The parties returned from the United States separately. According to the wife she returned together with Robert at the end of June or early July 1990 by which time the husband had already returned. She said that the husband had not returned since a few weeks after her return when he came once for the night and did not say that he would not return any more.

57. Mr. Kung, the wife's father, had been employed by the United Nations in Bangkok at all material times until the end of 1977 when he retired. Thereafter he settled in Kentucky in the United States. He visited the parties in Hong Kong on numerous occasions between 1967 and 1978 and came to Hong Kong in 1980 or 1981 when he did not see the husband. Subsequently he saw the wife (but not the husband) when she visited her parents on her own on four or five occasions between 1980 and 1990.

58. Mr. Kung's evidence was to the effect that during visits in 1967, 1969 and 1970 he noticed nothing untoward about the marriage of the parties. The first indication of marital problems mentioned in his evidence related to a one week visit in 1972 when he (and his wife) stayed at No. 3 Old Peak Road. He said the husband's mother had told him that the husband was involved with bar girls which meant he sometimes stayed out. She blamed this on the influence of a Korean bachelor business acquaintance and asked Mr. Kung (and the husband's uncle in Taipei) to put a stop to it. He said the wife had also mentioned the matter to him and was quite unhappy about it. According to Mr. Kung, when he raised the matter with the husband he first denied it but later he made excuses and said it was just business to entertain Korean friends and Japanese traders and "not to worry".

59. Mr. Kung added that the husband said nothing about divorce and did not say he was living with anyone but "I got the feeling that he had another house as he did not come back." His evidence was that when he asked the husband about it he said they just drank all night and went to different places and that it took all night. When pressed in cross-examination about where the husband was living at this time, Mr. Kung said he believed the husband was living at No. 3 Old Peak Road but he was suspicious because he did "not see him so often" and suspected that he did not come home every night.

60. Mr. Kung said that on his next visit in 1974 (for a week to 10 days) the husband's mother spoke about the parties and was very unhappy, saying that it was no better and that now the husband was stuck with one girl. He said the wife told him the same story and that friends had seen the husband and another girl in public places. Mr. Kung went on to say that when the husband was taxed with this by him he admitted he had one girl. This led to the coffee shop meeting with Teresa To at which he had made it clear to her that the family would not agree to share Robert, their only grandson, and that they would not agree to a divorce. He said that when Teresa To had said "I am leaving" after being advised to get out of the case by Professor Lin, he (Mr. Kung) had offered her compensation.

61. He told the husband's parents afterwards that he had understood Teresa To to have said that she would leave the family alone and accept compensation, although she had not actually mentioned compensation. He said under cross-examination that he and his wife had subsequently written to the wife and understood from her that negotiations were going on through the professor and the husband.

62. However, Mr. Kung said that nothing came of the negotiations. He came for a brief one week visit in 1976. He said the husband told him negotiations were still going on. The husband's mother was hopeful but said they must wait. Mr. Kung said in chief:

" I think he had two places Old Peak Road and another as he was not at Old Peak Road all the time. He was there some of the time. I did not ask if it was alright but I presumed so as he came for dinner and I sometimes saw him in the morning."

63. He said he came again in 1978 for a very brief visit after retiring from his employment in Thailand at the end of 1977. The husband told him to wait and said he was trying his best. According to Mr. Kung the husband's father was very disappointed with the husband's behaviour and wanted him to get rid of his "illegal partner". During the week he was there, Mr. Kung said, "We" had dinner at Old Peak Road and the husband was sometimes there also at breakfast. He did not think he had seen the husband since 1978, although he had stopped over in Hong Kong on his own for a couple of days in 1980 or 1981 when he had seen the husband's mother and the wife was still living at No. 3 Old Peak Road. He answered in the affirmative when asked under cross-examination if he gathered that the husband was still living with the girl (Teresa To) he had seen the husband with in 1974.

64. Under cross-examination Mr. Kung said the wife had visited her parents in Kentucky about four or five times between 1980 and 1990. He said they only spoke briefly about the husband. It was an embarrassing subject and they understood the position to be the same. The following exchanges took place between Mr. Rodway and Mr. Kung during the latter's cross-examination:

"Q. Would it be right to say that since early 80s Petitioner was [has] not lived with Respondent [wife]?

A. We think that is so but Respondent told us that he often came back and stayed for a time and then left again. Until recently he came back.

Q. But not living with her?

A. No staying with her for a few days and then left again.

Q. She told you that?

A. Yes and the Filipino girl also told me he came for a few days. She has been with Respondent for 5 or 6 years. .........................

Q. Was it clear to you from what she said that they were not living together?

A. Yes she said he came occasioning (sic) it was obvious they were not living together all the days.

Q. Obviously he was living somewhere else?

A. Yes.

Q. That was the situation throughout the 80s?

A. Yes."

65. This evidence was the subject of re-examination by Ms. Jacqueline Leong Q.C. on behalf of the wife which resulted in the following passage in the record:

"Q. It was suggest (sic) to you that from early 80s Petitioner was not living with Respondent?

A. Yes.

Q. What did you understand that to whom? [mean?]

A. That he was living somewhere else with an illegal party. We objected to this very much.

Q. You suspected that?

A. Yes.

Q. How much time did you suspect he was living with someone else?

A. We suspected he had someone else.

Q. But how often did he stay out?

A. This was strange but he came back and still established a home with Respondent. May be this is very usual in Hong Kong rich people do this have two homes but we do not like.

Q. You believed had another home?

A. Yes or he possibly spent the night with others in a hotel.

Q. When you say he had another home?

A. E.g. 1974 sometimes he came back sometimes we came back. He was already spending a night outside sometimes. That is what I am trying to understand.

Q. You suspected he was not living with Respondent?

A. Yes.

Q. And suspected he had another home?

A. Yes.

Q. How many homes do you think he had?

A. No idea, many hotels in Hong Kong.

Q. Did you consider Old Peak Road to be his home?

A. Yes.

Q. Why?

A. His mother stayed there, father with another mother stayed nearby.

Q. I mentioned [meant] where Respondent lived?

A. Yes. Respondent [wife] lived with mother-in-law. Petitioner came home it was his official home.

Q. Did he personally have any connection with it apart from mother and Respondent living there?

A. We had no information about where else he lived."

66. Julie Floresca, the maid's evidence related to the period, from 1985 onwards, when the wife was living in Po Shan Road and claimed that the husband was cohabiting with her. The maid said she began working for the parties at Po Shan Road in September 1985 soon after they moved in. The husband was away, she said, for the first few weeks. Asked about this in cross-examination she initially said she first saw him in late October, and later, in around November. According to her evidence the husband came home about three or four times a week (but not always continuously) up to 1990. She said that she did his laundry and gave evidence about domestic matters and referred inter alia to the occasion (which must have been the 11th June 1988) when the husband came to the flat early in the morning with immigration officials.

67. She said that at the beginning of 1990 the husband only came home once or twice a week for the night and that the wife travelled a lot sometimes. Her evidence was that the husband was still coming in the spring and summer but stopped after Robert came back in June 1990. She was not sure of the precise month that Robert came back but put it at the summer of 1990. She said that from what she saw whilst working for the parties she would say that the husband was living at Po Shan Road and that she left mail for him on the top of the drawers.

68. After extensive cross-examination it was put to the maid that she was lying but she denied it. It was put to her that during the time she was employed by the husband he only slept at home for three or four nights in September 1988. Her reply was "No. He came home."

69. It is readily apparent from this outline of the evidence (which has to be considered in conjunction with the pleaded social and travel activities of the parties which were substantially admitted by the husband) that that there was a major conflict between the evidence of the wife and that of the husband regarding the length of time the husband spent at the matrimonial homes and the quality of their relationship. The proceedings were fiercely fought and it was put to both parties that they were deliberately lying. The only difference was that in the case of the wife it was put to her by the husband's leading counsel at the beginning of her cross-examination, whereas in the case of the husband it was put by the wife's leading counsel to him at the end of his cross-examination. It was put to the wife (who denied it) that "you have come to Court to deliberately falsify evidence about whether you lived together at that period" i.e. the period from the summer of 1969 to 1990. In the case of the husband it was put to him (which he denied) that "what you had told this Court has been nothing short of a tissue of his [lies] about his [the] state of your marriage."

The Judgment

70. The trial lasted 15 days. In his reserved judgment the judge did not refer to the pleaded issues described in this judgment but confined himself to describing the basic claim of the husband founded on about twenty years alleged continuous living apart by the parties. After citing Mouncer, Santos and Piper and giving a brief outline of the marital history of the parties up to the time they moved in to No. 3 Old Peak Road (at the end of 1969), the judge dealt with the evidence on both sides, indicating a pronounced preference for the evidence of the wife and her witnesses. He expressed doubt whether the whole truth had been spoken by any of the witnesses except Mr. Kung whom he regarded as a sincere and honest man whose evidence had about it the ring of truth.

71. The paucity of findings of primary facts in relation to complex events spanning a period of twenty years makes the judgment difficult to follow without a careful perusal of all the voluminous evidence which the judge did not find it necessary to review in any detail. We have however had leading counsel's assistance in the course of a six day appeal in which almost the entire record and many of the exhibits were read. This was all material which the judge went out of his way at the end of his judgment to say that he had read through carefully when considering the matters he was required to consider in accordance with the principles applied in Santos.

72. As regards the husband's evidence (which the judge dealt with after that of his supporting witnesses) the judgment is confined substantially to a strong expression of his lack of credibility, both generally and on specified matters, albeit accompanied by the comment (without elaboration) that obviously much of what he had said was true. The judge had this to say about the husband when initially considering his evidence:

" At least the husband's witnesses had their pride. In his desperate desire, for a reason obvious only to himself to be with Ms. Cheung the husband abandoned any pretence of pride and was prepared to go to any length to denigrate his wife to try and discredit the evidence of the household maid who was called by the wife. He introduced, in cross-examination, suggestions that the maid could never have done his laundry because she did not notice how much he soiled his underpants. I was not impressed.

    Asked why, because it was possible at the time, that he did not take Teresa To, for whom he provided living accommodation and with whom he adopted her two nieces from Beijing, as his official concubine he replied that it was 'not fashionable'.

    When a witness says I have lied to practically everybody but the Court must believe me, that witness has a difficult task. Although, obviously, a great deal of what the husband said was true I did not find the husband to be a witness of truth." (Emphasis supplied)

73. The judge was not impressed by the evidence of Teresa To which he referred to as evidence -

"....that they lived together for ten years [the witness said the period was from 1970 to 1984], that she watched him like a hawk [these were not the words of the witness], that she was involved in his business and travelled with him both on business and pleasure and that there was no way that he could have been living with his wife in the same period." (Words in square brackets supplied).

74. The judge observed that this witness had her pride and was quite understandably going to concede nothing. He went on to identify matters which he impliedly regarded as inconsistent with her evidence. He began by observing that "in that same period" the husband had set up at least two other liaisons with respectively Cindy Li (who bore her first child by him during that period) and a Korean woman by whom he had a son.

75. As to Teresa To's evidence that she was known to "all and sundry" including the husband's business associates as "Mrs. Chiu", the judge commented that nevertheless in 1971 (as admitted in paragraph 10(vii) of the reply) it had been the wife who with the husband had attended a cocktail party given in 1971 by Lotte Trading (Hong Kong) Co. Ltd. upon obtaining the sole agency for worldwide distribution of Korean ginseng. Also, the judge observed, it was the wife who attended with the husband the reception given in 1974 when the husband opened the Korean Ginseng Centre Ltd. with which Teresa To was involved and she was not even told of the party or that the wife was the one who had attended. The judge then added:

"Much of her evidence was put in doubt by the husband's own Defences to actions brought by her against him SC 1988/A6510 and SC 1989/A5263".

76. After referring to the fact that the husband and wife had "hosted various other social events and travelled abroad in that period" the judge said:

"The wife's parents came every two years and stayed at the matrimonial home and the wife's father gave evidence, that I accept, that the husband was there on many occasions although these became fewer as the years went by."

77. As to the 1974 meeting in the coffee shop (where Teresa To had said she wanted the parties to divorce so that she could marry the husband and that she was prepared to be responsible for Robert) the judge observed:

" It was Mr. Kung's evidence, which I accept, that the husband stated that he would never divorce the wife unless she took the initiative, whereupon Ms. To said that she 'would leave'. Mr. Kung understood her to mean that she would leave the husband. For many years he believed but with that belief gradually weakening that the husband really was trying to negotiate a break with her through Professor Lin."

78. Cindy Li's evidence was disposed of in the following passage of the judgment

" Ms. Li had to be brought to the Court under a warrant and was reluctant in the extreme to have to disclose her relationship with the husband in this case. She bore the husband two children. He supplied her eventually with two flats in her name but the relationship for a long time was by no means continuous and was clearly not a happy one."

79. Ms. Cheung's evidence was dismissed in the following terms:

"The final witness was Ms. Cheung who shares with the husband the view that she is one of God's gifts to mankind and that everyone else connected with the husband should be got out of the way so that she can run him and his businesses exactly as she wishes. On her own evidence she has little regard for the truth. Her description of how she acquired illegally a Malaysian passport (upon the discovery of such illegality she was deported from Hong Kong) was totally superficial and equally unconvincing. I found her to be a witness upon whom I could place no reliance at all." (Emphasis supplied)

We stress that we deprecate the use in a judgment of the unnecessary and intemperate language contained in the emphasised passage above.

80. Coming to the wife's evidence, the judge commented that "on the whole" it impressed him as being truthful and credible "although she perhaps exaggerated the amount of time that the husband spent at the matrimonial home". He expressed himself to be satisfied that the matrimonial home was finally at Po Shan Road to which the parties had moved in 1985. He rejected the husband's evidence that he had purchased Po Shan Road for himself and that the wife had taken it over. He then said:

" The evidence of the wife confirming that set out in her Answer was extremely compelling and supported inter alia:-

(3) .by a certificate of Registered Particulars issued by the Immigration Department on 29 April 1988 showing the husband's address to be the Po Shan Road one and that the wife was indeed his wife.

(4) by a "Biographic Data Report" submitted to the US Consulate by the husband signed by him and dated 'March 19, 1988'." (Emphasis supplied)

81. The judge found the evidence of the maid, Julie Floresca -

"quite convincing although she exaggerated the number of times that the husband came home to Po Shan Road in the past 3 years as could be demonstrated by reference to his travel schedule and travel he did a very great deal. (It was no doubt as a result of these travels that he was able to deceive not only his wife but his mistresses.)"

The judge firmly rejected the suggestion that the maid had had her evidence prepared in a conspiracy with the wife. He said that his distinct understanding had been that the maid "did not really care that much" and, being a maid, had done what she was asked to do, but had not been friendly with either of her employers, who had never even bought her a present from their trips abroad.

82. As to the evidence of Mr. Kung (whom the judge described as the most impressive witness of all), the judge referred to his concession -

".... that since the early 1980s the parties had been virtually living apart as the husband was away so much and because he knew that the husband had set up a home and spent large amounts of time with Teresa To."

83. The judge added that Mr. Kung had said that he regarded Po Shan Road (the witness in fact had mentioned Old Peak Road) as the husband's "official home". Adverting to the argument on the husband's behalf that this evidence showed that the marriage no longer subsisted and that the husband should be believed when he said he had made a unilateral decision to end it in 1968 or 1970 or certainly from the 29th August 1985 (the beginning of the 5 year period relied upon by the husband) the judge observed that this argument ignored the tradition in which the husband was brought up, his father having three wives and several children, his paternal uncle four wives and nearly 20 children.

The judge then found as follows:

"I am satisfied that the husband was aware that, because of his behaviour, his wife would undoubtedly succeed if she chose to divorce him but regarded the marriage as subsisting, well into 1988 at least, and was proud to have the wife to show to the world as such and as the mother of his beloved son Robert. I believe that he did return and live, when not travelling abroad on business, at Po Shan Road, having suffered a great loss of face in June 1988 when he was convicted on passport charges given a suspended sentence, (Ms. Cheung having, at about the same time, been deported). I can well believe that when "Ms. Cheung" was able to return to Hong Kong in February 1989 that his affair with her became more intense and that he did then unilaterally make the decision to regard the marriage as at an end.

I have not attempted in this judgment to review every single piece of the evidence, which runs to 800 pages, all of which I recorded in writing and have read through carefully. I have considered at length those matters that I am required to do as mentioned in Santos and set out earlier. I find the husband did not cease to recognise the marriage until some time in or after February 1989." (Emphasis supplied)

The final comment of the judge was:

"The whole of the husband's case was based on his deception of, or attempts to deceive, his wife, his son, his parents and family generally, business associates and mistresses. He has failed to make out his case and I dismiss his petition."

The appeal

84. By his appeal the husband seeks to set aside the judge's order dismissing his petition and to obtain a decree nisi of divorce. The judge's decision and the reasoning in his judgment has been subjected to a vigorous frontal assault. The substance of the grounds of appeal and argument on the husband's behalf is that the judge misdirected himself by adopting the wrong approach to the evidence in the light of the relevant authorities (which the judge had cited but not followed) and by failing to evaluate the evidence properly.

85. Mr. Rodway contended on behalf of the husband that this was a case where, as in Piper, the judge should have considered the quality of the relationship existing between the parties and that he should have done so in accordance with modern custom subsequent to the introduction in 1971 of monogamous marriage in Hong Kong under the Marriage Reform Ordinance (Cap. 178). The contention was that the judge had failed to do either of these things. It was also argued that the judge had failed to consider or to make any findings as to when the parties did in fact begin to live separate and apart in the physical sense as opposed to the question when the husband ceased to recognise the marriage. The correct test, it was contended, was for the court to determine the date when the husband left the matrimonial home and further determine whether at that time or at some later time, and if so when, he formed the intention of never returning to live again with the wife as man and wife.

86. For the wife Miss Leong accepted that the judgment did give rise to difficulties due to the absence of specific findings in favour of either party on particular pleaded issues, relating to specific events, but it was submitted, this would have involved a mammoth task. The judge had, she submitted, adopted a form of "short hand" in his judgment and had accepted the wife's pleaded and evidential case in a situation where the parties were in direct conflict. The necessary implication of this, it was contended, was the finding of fact that the husband did come home to the matrimonial home, albeit not every night, but in circumstances where he was not a visitor or returning purely for access to Robert, but with the subjective intention of maintaining his home and his marriage. It was also contended by Miss Leong that the judge had been required to consider the subjective mental state of the husband in relation to his station in life in which the taking of a mistress and a degree of cohabitation with her was consistent with the intention of not ending the husband's marriage.

87. The paucity of findings of fact in the judgment on the numerous pleaded issues during a twenty year period of alleged separation was unfortunate. However we are unable to accept that the judgment is not sustainable by reason of the failure of the judge to adopt the right approach in accordance with the authorities or by reason of his failure to make sufficient or proper findings of fact.

88. We accept that, as Miss Leung contended, the judge said enough to indicate that he was accepting the wife's pleaded and evidential case. He did this by his conclusion (in the passage emphasised earlier in this judgment) that the evidence of the wife confirming the allegations in her pleaded answer was "extremely compelling" and supported inter alia by the matters thereafter enumerated by the judge. Bearing in mind that in her answer the wife had pleaded inter alia that the parties had cohabited at specified addresses from June 1966 until June 1990 and had given evidence in support of that pleading (albeit on the basis that the husband's returns to the matrimonial home had been more infrequent after February 1989 and that the wife had travelled more after that time) the judge's acceptance of her evidence as extremely compelling support of her pleaded case can only mean that he was accepting that, notwithstanding the undoubted fact that the husband had taken a succession of mistresses and established them in their homes, he had never severed himself sufficiently physically or mentally from his wife and the matrimonial home to determine the consortium between them.

89. If, as the judge seems to have concluded by his acceptance of the wife's pleaded and evidential case and his finding that the final matrimonial home was at Po Shan Road, the consortium was not determined at all prior to June 1988, it is at first blush not easy to reconcile this with the judge's finding that the husband did "return" and live, when not travelling abroad on business, at Po Shan Road "having suffered" a great loss of face in June 1988 when he was convicted of passport offences. However, it seems to us, after considering the evidence of the wife regarding the alleged improved relationship between the parties after the husband's conviction in June 1988, that at this stage of the judgment the judge was probably intending to do no more than indicate that he accepted the wife's evidence about the improvement, immediately after June 1988, in what she alleged to be a continuing consortium.

90. The finding that by February 1989 the husband unilaterally made the decision to regard the marriage as at an end is clearly inconsistent with the wife's pleaded and evidential case which the judge had earlier found to have been established. However, in our judgment, this inconsistency is not sufficient to prevent a fair reading of the judgment as a conclusion by the judge that until February 1989 there was a continuation of both the necessary factum and mental state constituting consortium between the parties. Furthermore we consider that the judge was right to have regard to the antecedents and station in life of the husband when considering his subjective intentions in relation to the marriage. The first limb of the husband's argument therefore fails.

91. As to the second limb of the husband's argument, relating to the evaluation of the evidence by the judge, Miss Leong cited Powell v. Streatham Manor Nursing Home [1935] AC 243 (H.L.) and rightly reminded the court of the need for an appellate court to be very cautious before disturbing any findings of fact by a judge sitting alone where such findings are made by such a judge in accordance with his assessment of the credibility of witnesses who have given conflicting evidence. This court must always defer to the decision of the seeing and hearing judge unless it is satisfied that that he has misdirected himself and was plainly wrong: see Hongkong and Shanghai Banking Corporation v. Chan Yiu-wah [1988]1 HKLR 457 (C.A.) where the leading authorities were reviewed.

92. On behalf of the husband it was contended by Mr. Rodway that there was overwhelming evidence from the husband's witnesses and from Mr. Kung in support of the husband's case that he had left the matrimonial home in 1970 with the intention never to return to live with the wife as man and wife and that from that time onwards he had regarded the marriage to the wife as a mere shell. Mr. Rodway relied particularly on the evidence of Teresa To (who had said she lived with the husband from 1970 to March or May 1984), Cindy Li (who had been a very reluctant witness and said she had lived continuously with the husband between mid 1986 and early 1988) and Mr. Kung (whom the judge had accepted as a truthful witness and had said that it was clear from what the wife told him that the husband was not living in the matrimonial home throughout the 1980's).

93. In the light of this evidence (which in the case of Teresa To and Cindy Li it was alleged the judge had failed to evaluate properly) and of the judge's patent dislike and distrust of the husband and Ms. Cheung it was contended on behalf of the husband that the judge could not reasonably have found that the parties had only been living separate and apart since February 1989. It was contended that the judge had made numerous other errors when assessing the evidence. He had, it was submitted, failed to evaluate or appreciate the circumstances of the husband's initial departure from the matrimonial home (by the back stairs with his clothes in a suitcase) and had failed to differentiate between the husband's failure to sue for divorce (which had been explained reasonably by him) on the one hand and his decision to regard the marriage as at an end on the other hand.

94. It was contended that unnecessary weight had been given to the numerous photographs of the parties, produced by the wife, which had been taken after the original 1970 separation, of occasions when they went on trips abroad on holiday or otherwise had access to Robert, for reasons explained by the husband consistently with the consortium of the parties having determined. Undue weight had also, it was contended, been given to the wife's evidence of her attendance at various business and family functions with the husband in the years after 1971.

95. As to the evidence of the wife, it was contended that the judge had failed to evaluate properly the implications in relation to the credibility of the wife and the maid of his finding, in accordance with the evidence of the husband and of Miss Cheung, that they had been living together on a full time basis since February 1989 whereas the wife (supported by the maid) had given evidence to the contrary. It was further contended that a proper evaluation by the judge of the evidence of the wife and the maid regarding the extent of the husband's visits to Po Shan Road from 1985 onwards would have led the judge to the conclusion not that these witnesses' evidence was "exaggerations" but that it was misleading.

96. In this connection the point was taken on behalf of the husband that the judge had failed to give any weight to the evidence (the husband having tried on six pairs of trousers produced by the wife to the trial judge) that the clothes which the wife alleged the husband had been wearing until his alleged departure from the matrimonial home (in June 1990) were obviously far too small for him. In the case of the maid, it was further submitted that the judge had failed to appreciate the probable unlikelihood of her evidence that she never knew the name of the driver employed by the husband for many years notwithstanding that, according to her evidence, the driver had collected and delivered the husband on a daily basis from and to Po Shan Road.

97. Apart from the issues arising in relation to the evaluation of Teresa To's evidence (and the implications of the judge's finding that the husband and Ms. Cheung had been living together since February 1989) we were not persuaded that any of these elaborate arguments demonstrated that the judge had been plainly wrong in his assessment of the evidence of the witnesses on both sides. We were concerned by the peremptory manner in which Cindy Li's evidence was dealt with in the judgment, bearing in mind that this had been a most reluctant witness who would in all probability not be favourably disposed towards the husband. However Miss Leong produced an impressive note showing the inconsistencies between the evidence of the husband, Cindy Li and Ms. Cheung which were probably in the mind of the judge when he made his decision. Miss Leong also advanced detailed arguments in answer to Mr. Rodway's arguments on the second limb of his case (apart from the evaluation of Teresa To's evidence and the implications of the finding that the husband and Ms. Cheung had lived together since February 1989) on appeal, and in support of the judgment but, without meaning any disrespect for Miss Leong's arguments, we do not now deal with them because we have rejected the arguments advanced by Mr. Rodway on behalf of the husband, other than those referred to in parenthesis above.

98. In our judgment, given after anxious consideration, the judge's treatment of Teresa To's evidence was highly unsatisfactory. He gave reasons for rejecting her evidence regarding the period between 1970 and March or May 1984 (i.e. about 14 years and not 10 years as stated by the judge), when she claimed to have been living with the husband, which we consider demonstrate that he misdirected himself. Miss Leong was clearly put in a difficult position by this and very properly acknowledged her difficulties to the court.

99. The judge began by wrongly understating the number of years that Teresa To claimed to have lived with the husband and wrongly stating that her evidence was that she had watched the husband like a hawk. The witness never said that although she did say that at the time the husband lived with her he could not have lived with the wife. The reasons given by the judge as being inconsistent with the latter evidence of Teresa To were as follows:

100. Bearing in mind that the crucial factual issue in relation to the period between 1970 and March or May 1984 was whether the husband was (as he claimed) living all the time together with Teresa To and merely visiting the wife at Old Peak Road and accompanying her on social occasions and for trips abroad (almost always with Robert) as an outward display of a marriage which was already dead, or whether he was (as the wife pleaded and testified) still living with and continuing his consortium with the wife during that period, it seems clear to us that the reasons impliedly given by the judge for rejecting the evidence of Teresa To in preference for that of the wife were plainly wrong and the result of his misdirecting himself.

101. As to (1), the fact that the husband found time to maintain a liaison with Cindy Li and a Korean woman (neither of whom gave evidence that he lived with them during the relevant period) is not inconsistent with Teresa To's evidence that he was living with her (when not travelling) during the relevant period any more than it is inconsistent with the wife's evidence that he was still living with her. Moreover the evidence of Teresa To and Cindy Li was consistent in that Teresa To said that she and the husband had a tacit agreement that he would return home not later than 2 am, whereas Cindy Li (who did not claim to have lived with the husband before 1986) said that when he visited her (before they lived together) he had left between 10 pm and midnight.

102. As to (2), Teresa To's evidence (contrary to the judge's statement) was that she did have advance knowledge of the 1974 party. Again the fact that the wife had attended the two functions in question was a neutral factor which was not inconsistent with the husband in fact living together with Teresa To at the material time and maintaining a facade of the marriage when it suited him.

103. We are at a loss to understand how the judge came to the conclusion at (3) that much of the evidence of Teresa To was put in doubt by the husband's defences to the actions brought by her against him. She brought the 1988 action (No. A6510 of 1988) to enforce the deed of separation dated the 3rd November 1983. That deed was drafted in a manner appropriate to a deed of separation made between husband and wife. It recited that Teresa To and the husband had cohabited with each other for about 14 years, had adopted two children as their daughters, that differences having arisen between them they intended to separate and that the husband wished to make adequate provision for Teresa To and the adopted daughters. The operative part of the deed contained clauses under which the husband made substantial provision for Teresa To and the adopted daughters.

104. By her Writ and Statement of Claim issued on the 29th September 1988 in the 1988 action Teresa To alleged numerous breaches of the 1983 deed and claimed substantial sums against the husband. The amended defence and counterclaim of the husband filed in 1988 (the precise date is illegible on the copy before the court) pleads that the husband was at all material times married to the wife by whom he had a son Robert born in 1967. In paragraph 2 the husband admits that he commenced cohabitation with Teresa To in about 1969 until they separated in about 1983 and pleads that there was "no issue of the said cohabitation". In paragraph 3 the husband pleaded the adoption by Teresa To in China during "the said cohabitation" of two children of her sister and that having been brought to Hong Kong the children "resided with the Plaintiff and the Defendant during the said cohabitation" when (paragraph 4) the husband maintained them.

105. All these admissions in the defence, particularly relating to cohabitation, are clearly admissions made at the time against his interest (as they had been made in the recitals of the 1983 deed) and far from throwing doubt on the evidence of Teresa To (or the husband) they are cogent factors in support of the evidence of both Teresa To and the husband that their relationship was a very close one and that they were living together in the same way as man and wife notwithstanding the husband's infidelities and his "visits" to and other association with his wife on family or official occasions and when travelling with or visiting Robert.

106. The remainder of the defence raises various technical defences of some novelty (upon the merits of which we refrain from comment) which are not damaging to the evidence of Teresa To in these proceedings. The counterclaim arises out of the alleged breach by Teresa To of an alleged oral agreement by her to transfer to the husband 1.5 million shares in Pan Seas Holdings Limited (one of the husband's companies) which the husband had earlier given her as a gift.

107. Teresa To's 1989 action (No. A5263 of 1989) is concerned with her dispute with the husband concerning his firm General Exim Corporation and his six companies. In her writ and statement of claim issued on the 19th September 1989 against the husband, his firm and the six defendant companies, Teresa To claims that the husband represented to her that they were partners in the business of his firm, thereby inducing her to play the dominant role in the conduct of the firm's affairs and that she was primarily responsible for its success. She pleads that the husband has failed to account to her in respect of her interest in the profits of the firm. She also claims that she and the husband were directors of and the beneficial owners of all the shares in the six defendant companies and that from 1972 until 1983 she devoted herself to the running operation and management of those companies without remuneration or benefit. It is pleaded that the husband has retained all the benefits and profits of the companies and failed to account to her in respect of her interest in them. The relief claimed is a declaration of her interest in the firm and the defendant companies and appropriate accounts and consequential payments.

108. The husband's defence to this action consists, in effect, of a denial of all Teresa To's claims and a pleading of limitation in relation to all or part of the claims. This denial is inconsistent with the evidence of the husband and Teresa To regarding her involvement with the husband's business but is clearly a stone walling defence and it was common ground at the trial in these proceedings that Teresa To had become involved in the husband's business. Indeed Ms. Cheung was cross-examined to the effect that she had ousted Teresa from the husband's business and the wife gave evidence about seeing Teresa To at the husband's business premises where the husband had assaulted the wife in 1978 after the incident when Robert had made a disparaging remark about Teresa To in the presence of the husband's staff.

109. We therefore can see no realistic basis for holding that the husband's defence in this action contains matters casting doubt on Teresa To's evidence. On appeal Miss Leong took no such point. She confined herself to the point that under cross-examination Teresa To had admitted that the actions had not been settled and that she hoped for an amicable settlement. This, it was said, was a reason why Teresa To should be disposed to give evidence favourable to the husband. Be that as it may, the judge did not rely on this point.

110. As to (4), the fact that the parties had "hosted" various social events and travelled abroad together was clearly a material matter in these proceedings but it cannot be said to have been inconsistent with Teresa To's evidence that at the relevant time the husband was living with her and not the wife.

111. As to (5), the evidence of Mr. Kung as to his seeing the husband at Old Peak Road on many occasions (becoming fewer as the years went by) up to 1978 was again clearly material but not inconsistent with Teresa To's evidence that during the material period the husband was living with her.

112. Finally, as to (6), the fact that at the 1974 meeting the husband stated that he would never divorce the wife unless she took the initiative (and the fact that he took no divorce proceedings at all until 1990) is not a matter which in itself is inconsistent with Teresa To's evidence that he was living with her between 1970 and March or May 1984. It goes without saying that a husband may be living apart from his wife for the purpose of section 11A(1)(e) and, for his own reasons, have no intention to divorce her notwithstanding that there is no longer any consortium between him and his wife.

113. Being firmly of the opinion that the judge rejected the evidence of Teresa To that the husband lived together with her from 1970 to 1984 for reasons which are not sustainable because plainly wrong, we consider that the effect of the judge's misdirection in relation to Teresa To's evidence is to undermine the validity of his decision in this case. It is clear from the judgment that the judge based his decision on his assessment of the credibility of the parties and their supporting witnesses in relation to their evidence covering the entire period of 20 years during which the husband claimed that he had lived apart from the wife. As Miss Leong very fairly acknowledged, the 14 year period when the husband claimed he had lived with Teresa To was of major importance. Moreover it was never contended at the trial or on appeal (there was no respondent's notice) that even if the evidence of the husband and his mistresses were accepted, then the husband's admitted association with his wife (on family and business occasions and when they travelled together) and his signature to the registration and immigration documents mentioned in the wife's answer and in the judgment were in themselves sufficient to show the continuance of consortium between the parties.

114. As Mr. Rodway submitted, rightly in our opinion, if the judge had not misdirected himself when rejecting Teresa To's evidence, and had accepted it, this would have cast deep suspicion over the wife's pleaded case and her evidence. Furthermore it would have provided correspondingly supportive evidence for the husband's pleaded and evidential case. If the judge had considered the evidence of the parties and their supporting witnesses relating to the crucial five year period beginning on the 29th August 1985 in the light of the doubts raised by the evidence of Teresa To concerning the credibility of the wife, we cannot rule out the reasonable possibility that he might properly have taken a different and adverse view of the evidence of the wife and the maid (both of whom he regarded in any event as prone to exaggeration) and a more favourable view of the evidence, not only of the husband, but also of Cindy Li whose evidence he dismissed so summarily in his judgment.

115. We are therefore driven to the conclusion that the judge's misdirection of himself in relation to Teresa To's evidence renders his decision, based, as it is, substantially on issues of credibility, unsustainable. Furthermore we consider that the husband is justified in feeling aggrieved by the manifestation by the judge of extreme distaste for himself and Miss Cheung in language which we deprecate. In this connection there was a high degree of obscurity and ambivalence in the following comment by the judge concerning the husband's evidence which we have cited above and now repeat:

"When a witness says I have lied to practically everybody but the Court must believe me, that witness has a difficult task. Although, obviously, a great deal of what the husband said was true I did not find the husband to be a witness of truth."

We add that we consider it strange (and a matter which justifies a sense of grievance in the husband and Ms. Cheung) that having found the husband not to be a witness of truth and Ms. Cheung a witness upon whom he could place no reliance at all, the judge nevertheless accepted their evidence that they had been living together since February 1989, thereby rejecting the wife's pleaded case supported by the evidence of the wife and the maid (whose evidence the judge purported to accept) to the effect that the husband had not lived apart from the wife until June 1990.

116. Whilst we conclude, for the reasons we have given, that the judge's decision is not sustainable, we are not persuaded that the husband has shown on appeal that the judge should have accepted his evidence and that of his witnesses in preference to that of the wife and her witnesses. We confine our decision to the conclusion that the judge rejected the evidence of Teresa To for reasons that were plainly wrong and thereby rendered his decision in this case unsustainable. We therefore allow the appeal. The inevitable and unfortunate result is that there will have to be a re-trial which we now direct.

117. Before parting with this case, which raises difficult issues in the context of a complex factual background, we recommend that consideration should be given by. the parties and the District Court to the desirability of transferring the case to the High Court for the re-trial pursuant to rule 32 of the Matrimonial Causes Rules.

118. We will hear the parties as to the order to be made regarding the costs of the appeal and of the trial below.



