1936-11-02 — Page 6

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HONG KONG DAILY PRESS, MONDAY, NOVEMBER 2, 1936.

MAINTENANCE SUMMONS

"Marriage Game Of Mutual Give And Take"

JUDGMENT IN

ม

LORRY DRIVER

CHARGED

Hon. Cdr. Hole As Complainant

both

Pleading not guilty to charges, Lal Min, lorry driver, appeared before Mr, W. Schofield at the Central Magistracy on Satur- lorry KOWLOON CASE day accused of driving a

without due care and caution in Stubbs Road on October 24, and failing to pay attention to the traffic signal.

The summons for maintenance brought by Leung Pul Wa against her husband La Wah Hon was con- cluded at the Kowloon Magistracy On Saturday before Mr. E. Hims- worth when judgment was. de- Livered.

His Worship ordered 'Li Wan Kon to pay his wife $15 per month and, as regards costs, $25 each month beginning - from November 2, far four months.

Sergt. Hi prosecuted while the complainant was the Hon. Com- mander G.F. Hole, RN. (retired).

Sergh Hill said that on Oct. 24, Commander Hole was driving his car along Magazine Gap, the red light was against him and in a short while the green light shane In his favour. The red light was then against the defendent who took no notice of the signal and shot across the road. If Comman- der Hole had not pulled up in time, as he did, there would probably THE JUDGMENT Delivering judgment, his Wor- have been a fatality.

The case was remanded ship said in part:-

November 5 at 11.30 a.m.

Mr. M. A. da Bilvå appeared for the complainant and Mr. Peter H. Sin for the defence.

In this case I am called upon to consider two points, Arat de- sertion and secondly wilful neglect to maintain.

As to what constitutes desertion for the purposes of this ordinance has 'received a lot of Judicial at- tention and I regard the following essentials as necessary in law to show desertion. First, the deser- tion must follow immediately upon a state of cohabitation; second, the husband must wilfully desert his wife; and third, that a bona fide offer of the husband to return to his wife is an answer to a summons for desertion.

The first point has been concise- Penzance in ly stated by "Lord Fitzgerald Fitzgerald (1869 LR.

|

"

unti

14

RECEIVING CHARGE

Fong Kam Ho, 181, noter car cleaner, appeared before Mr. K. Keen at the Central Magistracy on Saturday charged with receiv

to be ink a blcycle knowing it stolen.

Det. Sergt. Cashman said that on September

ALLEGED

LOITERER

Found Near Central Market

Appearing before Mr. K. Keen at the Central Magistracy on Saturday Lal H, 69, unemployed, was charged wiht loltering with intent to commit a felony in Des Voeux Road near Aberdeen Street on September 30.

Det.-Sergt. A.F. Cochrane sald that about 2 am on Friday P.C.B. 427 was on duty near the Central Market when he saw the defendant walking to and fro. When the constable went up to him the de- rendant ran away. The constable, gave chase and caught him in Jubilee Street. When asked what he was doing the defendant, sald that he was waiting for a friend The who promised him work friend failing to appear the con- stable took the defendant along to the station.

in

The defendant and a Chinese detective later on went to find the friend who told the police that be defendant did not promise the anything and denied knowing him, The defendant was bound over

JUST OUT OF PRISON

4.

2 the complainant. Unemployed Snatches

Lung Tin, went to Central Market. and before entering the premises he left his bicycle outside. When he came out he found the machine was missing.

On Information, the defendant was arrested and the bicycle was recovered. The defendant. bought the machine for $3 and had it

of The value

the repainted bicycle was $25.

Defendant was bound over.

Teacher's Bag

CAUGHT BY COOLIE

Ip Wal, 28, unemployed, was brought before Mr. K. Keen at the Central Magistracy on Saturday for the larceny of a handbag from Chan Mo Ching. teacher, of the Ying Wah Girls' College.

1 P. and M 694) where he states "No one can desert who does not actively and wilfully bring to an end an existing state of cohabita- tlon." In the case before us it is that a pre-existing

Sub-Inspector Kirby, stated that rot doubted state of cohabitation has been plaitin attempted to regain ad-about 4.30 p.m. on Friday, the com- brought to an end. The case cen-mittance to her husband's house plainant was walking in Caine Road that the door was held against her near the Police Married Quarters, ters more round the second point.

when the defendant approached by other members of the house→

her and snached her bag from un- hold. Even if the defendant was not actually present at this time, der her arm. The defendant ran he, must have known of the in- down. Calce Lane, but a Sanitary cident, but instead of making re-Department coolie, who heard the stitution for his mother's actions shouting. pursued the defendant he deliberately chose to avoid his,

and arrested him with the bag still wife. On the 23rd of October 1935 in his possession. The coolle hand- when plaintiff sought him out at ed the defendant over to a con- his office, defendant made known stable who arrived on the scene. nis intention that he did not wish to have any further dealings with his wite. I therefore hold that de- fendant intended to bring the ex- Isting state of cohabitation to an end, and made known that inten- tion to complainant on October 23rd 1935.

To constitute desertion on the part of the husband it is not neces- sary that he should have left his wife; there will be desertion if the husband by his conduct compels his wife to leave his house. The principle which underlies the cases on this point is the intention of the husband to break off matri- monial relations. Moreover, where A husband has caused his wife to leave him by reason of his conduct, the desertion will not be put an end to by the husband requesting his wife to return, if she refuses and has reasonable grounds for doing 30,

WIFE LEFT HUSBAND

BONA FIDE OFFER? There remains a third point, namely that a bona fide offer by a husband to return to his wife is an answer to a summons for desertion. There is some evidence of such an offer in this case but is it bona fide? I am of the opinion that such an offer to be bona fide must be reasonable that is. It must be couched in such terms that a wife can accept it with reasonable confidence. that can be normal marital relations continued. In this case plaintiff is asked to go back to her hus- band's home and live with her mother in law, who is alleged to have made her previous married life unhappy and to have been res- ponsible for the estrangement of husband and wife.

The defendant injured his toes when he fell during the chase. The defendant had one previous convic- tion and was discharged from gaol 40 hours for medicial examination. The defendant was remanded for only five days ago.

OPIUM POISONING

Ng Wah Sang, 47, of 23, Upper Lascar Row, third floor, was ad- mitted to the Government Civil Hospital on Saturday suffering from the effects of opium poison- ing believed to have been self- administered.

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was brought before Mr. Q. A. A. Macfadyen at the Kowloon Magis- tracy on Saturday and was sen- tenced to a year's hard labour for returning from banishment.

I have stated the law on this subject at some length because in this case it would appear at first sight that the wife left the hus- band when on the 13th October, 1935 she left her husband's house for the purposes of attending the wedding of her sister in the coun- try. In so doing can it be held that she intended to break per manently an existing, state of cohabitation? On the basis of the evidence I have heard I am satis- fied that it does not. I find it difficult not to believe the evidence of the defendant on this point. That a wife should be able to pack all her luggage, which must have taken some time, and leave a house- hold which comprised of not less than ten persons without some one person knowing of it, appears incredible to me. Again assuming that the husband did make some enquiries as to his wife after she had gone, such enquiries appear to have been of a cursory character and to have been confined to the few days following her departure. Once he learned of her return to the colony he states he reported

The Honourable Mr. Richard Mc- the matter to the Mong Kok Police Station, but there is no evidence demands and counter demands. Nell Henderson, M, Inst: CE, MI that from that date, Le. 29th Octo-

for we cannot expect two human ber, 1935, that he ever tried to

beings living in close contact with make contact with his wife again, one another to be agreed on all although his solicitor stated on the questions which arise in married 28th of August 1936 that he had-life. The final question therefore, been looking for her "ever since is Was defendant's insistence that she left him." To hold that one visit to the country amounted to desertion on the part of the wife would be to assert that a wife

on

MUTUAL GIVE AND TAKE A man is, I think, entitled in a measure to state the terms which he and his wife shall make their homes together, but the terms must be reasonable. Marriage is a game of mutual give and take: the reconciliation of two human natures to effect a practical lows:

modus vivendi. This involves

APPOINTMENTS

Appointments etc., listed in the Government Gazette are as fol-

Mech E, resumed duty as Director of Public Works on October, 28.

The King's Exequatur empower- ing Herr Hermann Gipperich to act as Consul-General for Germany at Hong Kong, has received His Ma- jesty's signature,

Mr. Thomas Stodart Whyte- Smith resumed duty as Land Off- cer on October, 28.

plaintiff should live in his mother house a reasonable request? In this case I do not think it was. No man has a right to ask bis wife

Mr. Myles John Abbott relinqul- must never leave the home without

to share her home with his rela-

shed duty as Assistant Land Officer the permission of her husband. 1

tions, except in exceptional cir-

on October, 28, and as Deputy Re- think that the wife's story supcumstances, which I think are ported by that of her mother and lacking in this case. He knew his gistrar of Marriages on October, 29. During the absence from the other witnesses that she attempted wife was estranged from his mo- to return to her husband's house ther and yet insisted on the form-Colony of Herr H Gipperich, Con- is a true version of the facts and

er living under the same roof asal-General for Germany at Hong that the husband's household turn-

the latter. ed her away from the door.

CONDUCT OF DEFENDANT The question therefore, is-Dots the conduct of the defendant in this case amount to an intention on the part of the defendant to break off matrimonial relations? I think it does. It seems to me to be futile to argue that when the

Kong, Mr. A. Gelewaky will until A wife can expect a home when further notice, be in charge of the: she is married; he is not entitled ! Consulate General for Germany.

to expect that she will be burden-

His Majesty the King has been

ed with obnoxious relations. I pleased to approve the appoint- hold therefore that in this casement of the Honourable Mr. Robert the offer of the husband to take Hormus Kotewall, CMG., IZD., to back his wife cannot be consider be an Unofficial Member of the Ex- ed a bona fide offer and that the ecutive Council for a period of five

years, with effect from July 9, 1936- plaintiff's case must succeed.

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