MOK PO SHING v. LIE LIE KHIM

IN THE COURT OF APPEAL

1996, No. 57
(Civil)

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J U D G M E N T

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Nazareth, V.-P.:

1. The petitioner/husband, Mok Po-shing, appeals in person to this Court against the dismissal by His Honour Judge de Souza on 14th March 1995 of his petition that his marriage to the respondent/wife be declared null and void.

2. The facts are these.

3. The petitioner ("the husband") married the wife at the Registrar's Office at Eastern Marriage Registry in Hong Kong on 27th October 1994. The wife comes from Indonesia and was introduced to the husband a few weeks before, on 25th September 1994. After the marriage ceremony she revealed to him that she had become pregnant once, following casual sex with her boyfriend back in Indonesia. But she had terminated that pregnancy by having an abortion. This, according to the husband, so upset him that he could not bring himself to consummate the marriage although invited by the wife to do so. In the words of his written petition, he "found that he had an invincible repugnance towards the Respondent and was totally unable to accept having sexual intercourse with her at all. As a result, no sexual intercourse ever took place".

4. The judge carefully ascertained from the husband that indeed it was he who refused to have sex with the wife. The husband also confirmed to the judge that he was not impotent. It was simply that as he put it, that he found it disgusting to have sex with her. He was not impotent at all.

5. His solicitor confirmed that it was the husband who refused to have sex. The solicitor added that there was nothing he could say. I have to say that what the solicitor might have explained was upon what grounds he thought the petitioner could have granted a declaration of nullity for I cannot see any.

6. A marriage is voidable under s.20(2) of the Matrimonial Causes Ordinance, Cap 179 on the ground that it has not been consummated owing to the wilful refusal of the respondent to consummate it. The petitioner is not entitled to a declaration of nullity upon his own wilful refusal to consummate. Nor, as far as I can see, is the petitioner entitled to a declaration of nullity on any of the other grounds in s.20 of the Ordinance.

7. I would dismiss the appeal without further ado.

Bokhary, J.A.:

8. I have sympathy for this man and for his wife, too. They went into a marriage; but now neither of them seems to want the marriage any more.

9. As to how to get out of the marriage, he had legal advice. He was advised to seek a declaration that the marriage was null and void. For the reasons given by my Lord, echoing those given by the Family Judge, there is no basis for such a declaration.

10. There may well, however, be another basis on which he can get out of the marriage. And that is by seeking a divorce. If he wishes to do that, he can certainly consult fresh solicitors about it. That is a matter for him.

11. As far as his present appeal is concerned, however, it must be dismissed.

Godfrey, J.A. :

12. This unfortunate husband, a scaffolding worker, appears to have been advised by his solicitors to petition the court for a decree of nullity of his marriage on the ground of its non-consummation; but the non-consummation was due to the unwillingness of the husband to consummate the marriage, not the unwillingness of the wife. How, in these circumstances, his solicitors came to advise him to do so passes my comprehension. The petition being manifestly ill-founded, was, as the judge below pointed out, incompetent.

13. As Bokhary, J.A. has said, there may be another remedy available to the husband, and I agree with Bokhary, J.A. that the husband needs once again to take legal advice. I express the hope that it will be better advice than the advice he appears to have received so far.

14. There is nothing further that I wish to add.