Wong Yuk-ping v. Ho Chun-wan
Read the full judgment text of CACV 27/1976 on BabelCite. This Court of Appeal judgment was delivered on 31 May 1976 before Trainor, J..
Family law – child custody – care and protection – Protection of Women and Juveniles Ordinance s.34(2)(a) – appeal – sufficiency of evidence – parentage – moral danger – child aged about two – mother left child with third party – child sold to appellants – Magistrate found mother fit with conditions – appeal dismissed – child to remain with mother under recognisance and supervision
Legal issues: Sufficiency of evidence for parentage finding · Application of Section 34(2)(a) of the Protection of Women and Juveniles Ordinance
Outcome: Appeal dismissed; child to remain with mother under Magistrate's conditions.
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CACV000027/1976
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----------------- Coram: Trainor, J. Date of Judgment: 31 May 1976 ----------------- JUDGMENT ----------------- 1. This is another of those unfortunate cases in which a small child is being fought for by two groups both of whom who are anxious to have her. The proceedings arose out of an application by the Director of Social Welfare under Section 34(2)(a) of the Protection of Women and Juveniles Ordinance. The background to the case is as follows. 2. The respondent to whom I shall refer as Madam Ho, at a very early age, about 13 years, co-habited with a man and by the time she was 14, had given birth to an infant. Sometime after the birth a matter of months, there was a difference between herself and the father of the infant as a result of which she left him. Since then she has been living with a man who appeared with her in court today at the hearing of this appeal. 3. When Madam Ho left the father of the child and went to live with this gentleman, she left the child in the custody of one, Ko Lo Kan who had been living with them. He was living on Kowloon side and she and the person she now calls her husband came to live on the Hong Kong side. She told the learned Magistrate that she visited the child from time to time and paid occasional sums of about $100 to this man to look after the child. On one visit about six weeks after she had left the child with Ko, she found that the child and Ko had disappeared. She said she made enquiries but for some time without result. She eventually found that a child was living with a Madam Wong and her husband, and as a result she and her husband, and I think another person, went to see Mr. Wong. Mr. Wong told her that he had adopted the child but he refused to hand over the child and brought his wife in for a discussion on the matter. It transpired that Mr. Wong and his wife had paid a sum of $3,000 to a person who said he was the father of the child about 18 months previously as the result of an introduction by a person who was known to them, and well known to them, as Ko Lo Kan. It was as a result of this visit by Madam Ho enquiring about the child and asking to see her that these proceedings started because the following day Mr. Wong reported the matter to the police who in turn reported the matter to the Director of Social Welfare and hence the ex parte application which was made in the court below. 4. In the court below the learned Magistrate found that the child was the child of Madam Ho and he ordered that the child should be given to her, and made certain ancillary orders. Those ancillary orders were that Madam Ho would enter into a recognisance in the sum of $500 to exercise proper care and guardianship over the child until she reaches 21 years or lawfully marries or further order, and that the child be placed under the supervision of a Social Welfare officer for 3 years. 5. As I said the application in the court below was made ex parte under Section 34(2)(a) of the Women and Juveniles Ordinance. But the decision of the learned Magistrate was appealed against by Madam Wong, the lady with whom the child had been living for about 18 months since it was acquired by herself and her husband. 6. There were five grounds of appeal the first of which is that there was no or no sufficient evidence to support the learned Magistrate's finding that the baby girl is the natural child of Madam Ho. I do not intend to dwell on that point because in my opinion there was ample evidence on which the learned Magistrate could come to such conclusion. Indeed I consider that his finding was the correct finding on the evidence that was available to him. 7. The second point was that the learned Magistrate failed adequately or at all to consider how the baby girl became a child deemed to be in need of care and protection. Mr. Kwok who appeared on behalf of the appellant argued that there was no basis for the application presented before the Magistrate under Section 34(2)(a). 8. Sub-Section 1 of Section 34 of the Ordinance provides for the order that a juvenile court may make with respect to a child or young person in need of care and protection. Sub-Section 2, for the purposes of the Section, defines a child or young person in need of care and protection and paragraph (a) of that Sub-Section reads that "a child or young person in need of care and protection is (a) a child or a young person, who having no parent or guardian or a parent or guardian unfit to exercise care and guardianship or not exercising proper care and guardianship, is either falling into bad associations or exposed to moral or physical danger or beyond control". 9. To summarise the argument of Mr. Kwok, it was to the effect that: there was nothing to suggest that the child in question, as it was at the time the application was made, was with a person unfit to exercise care and guardianship; or that the person was not exercising proper care and guardianship; or that the child in its existing conditions was in danger of falling into bad associations or exposed to moral or physical danger; and therefore Section 34(2)(a) had no application. With respect, I think that that is not the correct interpretation of this Section as it applies to this case. The Sub-Section, if I may summarise it to meet the instant case deals with a child who has a parent who may be unfit to take care of it, or is not exercising proper care and as a result there is the danger of the child falling into bad associations or exposed to moral or physical danger. In the instant case we have a child now aged about two. It has, as the learned Magistrate found, a parent. The background of that parent is such as would suggest that the child was facing a future in which there would be considerable moral danger. There was a possibility of her falling into bad associations or being exposed to a moral danger as I said earlier. There was also the position that this young girl, Madam Ho, when she left her baby, had not seriously looked for it, and that since she came to co-habit with the man she now calls her husband, she made no effort to mend her ways. Indeed in the early stages she had, if anything, become worse. Since then she has made no effort to marry this man. Mr. Kwok argues that the child is in grave danger, grave moral danger if she remains with Madam Ho. 10. I have to view this case first of all from the basis of what the learned Magistrate found. He has found that there is a natural mother claiming the child from persons who have no right to the child whatsoever; indeed the way they obtained the child is an offence. 11. I am faced with the findings of the learned Magistrate that although there may have been grave grounds for worry about the welfare of this child some time ago, the mother has now become more mature and more responsible. The only decision that was open in my opinion, to the Magistrate on the hearing of the case before him was to decide whether or not this child should go to the Social Welfare Department or to its mother. He has decided that it is the mother who ought to have it. To ensure that the child is properly looked after he has imposed on her mother certain conditions. I can see no reason why I should differ from the decisions and conclusions at which he arrived. I therefore dismiss this appeal.
Representation: K. Kwok (Peter C. Wong & Co.) for appellant. Respondent in person. |