Ng Cheei Fai v. Ng Han Lai Wah
Read the full judgment text of CACV 28/1980 on BabelCite. This Court of Appeal judgment was delivered on 5 June 1980.
1. This is an appeal against a custody order made by Mr. Commissioner Liu. The matter first came before him as an undefended divorce in the District Court on the 3rd February, 1979. Both parents sought custody of the only child of the marriage - Ng Wing, a little girl, who is now just eight - and the matter was adjourned.
|
CACV000028/1980
----------------- Coram: Cons, J.A., Yang and Bewley, J.J. Date of Judgment: 5 June 1980 ----------------- JUDGMENT ----------------- Bewley, J. : 1. This is an appeal against a custody order made by Mr. Commissioner Liu. The matter first came before him as an undefended divorce in the District Court on the 3rd February, 1979. Both parents sought custody of the only child of the marriage - Ng Wing, a little girl, who is now just eight - and the matter was adjourned. 2. At the time of the decree, Ng Wing was in the de facto custody of her father. The court made an interim access order permitting the respondent to collect the child from school and give her lunch etc. 3. Unfortunately, in April, the respondent, without notifying the appellant, removed the child to an unknown address. 4. The appellant took out a summons for an injunction, which came on for hearing on the 11th May. The social welfare report stated that the child preferred her mother to her father, but nevertheless came down on balance in favour of the appellant. 5. The hearing was part heard and a second interim access order was made, whereby Ng Wing was to stay with the respondent from Monday morning to Friday evening, and with the appellant from Friday evening to Monday morning. The object was to see how she settled down with each parent before an order for custody was made. 6. The hearing of the appellant's summons was resumed on the 4th June, but the social welfare officer advised a two month moratorium and the case was again adjourned. On the 9th August, a third social welfare report was submitted to the court, non-committal in tone, but recommending a speedy decision. In both these last two reports the social welfare officer stated that the child preferred the mother. 7. It was now the turn of the appellant to take matters into his own hands by removing Ng Wing. In consequence, on the 16th August, the respondent filed a summons, which - presumably because the child was produced - was later withdrawn. 8. However, the respondent continued to have difficulty seeing her daughter and, in September, filed a second summons for custody, followed, in January, by a final summons, which included a prayer for leave to remove the child from the jurisdiction. 9. The latter, by virtue of Rule 97(2) of the Matrimonial Causes Rules, necessitated a transfer to the High Court. 10. When the case came on before Mr. Commissioner Liu on the 25th January, 1980, the following issues were framed by consent :
11. In this appeal we are concerned primarily with (1) and (3). 12. The evidence that emerged showed beyond doubt that, while the bitterest feelings existed between the parties, they were both prepared to make great sacrifices on behalf of the child whom they undoubtedly loved. This is something the judge clearly had in mind throughout the case. 13. The parties were married in China in 1970 and came to Hong Kong three years later. Both are in modest circumstances. The appellant is a caretaker earning $1,300 a month. He has hopes of a legacy from his mother in Singapore, but the judge took the view that he was unlikely to be able to provide significantly greater material benefits for Ng Wing in the foreseeable future. He has already, at considerable expense, bought her a piano and he pays for her lessons. 14. The respondent is presently working as a salesgirl in a dress shop at a salary of $1,500 a month. She is, however, nothing if not versatile. In China she qualified as both a radio engineer and a nurse. In Hong Kong she has also worked as both nurse and waitress. 15. The learned commissioner was impressed both by her ability to maintain herself independently - she has no relatives in Hong Kong - and by the impression she has made on the United States Consulate and the International Rescue Committee. 16. The respondent's mother is American. She has lost contact with her mother since childhood and she thinks she is somewhere in California. Her father is dead. The International Rescue Committee is an organization that, inter alia, provides assistance to immigrants from China. It is now certain that, when these proceedings are concluded, the respondent will be permitted to emigrate to the United States and to take Ng Wing with her. 17. In this event, the International Rescue Committee is prepared to find her a job and accommodation, be responsible for Ng Wing's education as well as to grant loans for travel and maintenance. 18. The appellant has relatives and friends in Hong Kong, on whom he intends to rely for help in bringing up the child. The judge, however, found this evidence unsatisfactory and concluded that there was a lack of harmony in the appellant's family relationships that did not bode well for the future. 19. The social welfare reports are non-committal, though they do indicate a preference on the part of Ng Wing to be with her mother. This is confirmed by the judge's own talk to her in the absence of her parents. One point in particular emerges. There is - and this is understandable - a block in communication between the girl and her father on delicate matters. 20. Section 3 of the Guardianship of Minors Ordiance provides :
21. The judge did not specifically refer to this section, but he must have had it in mind. On page 8 of his judgement he quoted counsel's submission as to his primary consideration and, in the same paragraph, he specifically mentioned "the best interests of the daughter". 22. Both parties have behaved badly insofar as they have contravened court orders in their zeal to have the child to themselves. But their misconduct is equally balanced and we think the judge was right to pay little attention to this aspect of the case. 23. In deciding the two crucial issues in favour of the respondent, he clearly placed great weight on two matters :
24. The fact that he referred to (2) when deciding the question of custody and (1) when dealing with the prayer to take the child out of the jurisdiction, is without significance. The two matters were inextricably bound up and we are satisfied that, having decided the question of custody in the respondent's favour, the second decision followed almost inevitably. 25. It was submitted on behalf of the appellant that, since April, 1978, a state of continuity has been established by the appellant's constant share of custodial responsibility and that this continuity should not be disrupted. 26. We are satisfied that the judge gave this submission the consideration it deserved. Ng Wing is not of such tender years that she is likely to be upset by another change of residence. Indeed, the judge noted that it was quite apparent to the child that a tug of war was going on and that she had learned to play one parent off against the other. It is true that he made no reference to the prospective break with Chinese ways and customs, but we do not think, in the case of a child of eight, that this is a factor of great importance. 27. Counsel for the respondent at the trial referred to the passage in Bromley on Family Law(1): "Common sense dictates that normally the mother should have the care and control of young or sickly children (particularly little girls)". 28. There is no rule to this effect. It has been stated by Lord Denning M.R. that, as a matter of general principle, a boy of eight was, on the whole, other things being equal, better off with his father W v W & C(2). But this dictum was explained and qualified by the English Court of Appeal in Re C (A) an infant(3), where Edmund Davies L.J. pointed out that all the circumstances must be taken into consideration, of which the age and sex of the child were but part. 29. Had the child been a boy, things might have been different. But, given the fact that Ng Wing is closer to her mother, plus the prospect of a new life in America, which is likely to be more agreeable than life for her in Hong Kong, and all other things being more or less equal, we think the judge applied the correct test and came to the right conclusion. 30. In giving leave to take the child out of the jurisdiction, the judge insisted upon stringent undertakings on the part of the respondent. He realized that, once across the Pacific, it might nevertheless prove impossible to enforce these undertakings, and that Ng Wing might never come back to Hong Kong. It is a distinct possibility. We feel, however, that this is something that must be accepted in the overall interests of the child. 31. For these reasons we dismiss this appeal. Representation: Miss Jacqueline Leong (Victoria Y. Chan & Co.) for appellant. Mr. Leo Remedios (Helen A. Lo & Co.) for respondent. (1) 5th Edition at page 316 (2) 1968 1 WLR 1310 (3) 1970 1 AER 309 |