Siu Pui Lam v. Mok Wan Ho

CACV000029/1968

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 29 OF 1968

(On appeal from Causeway Bay Magistracy No. 13331/68)

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Coram: Rigby, S.P.J.

Date of Judgment: 14 November 1968

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JUDGMENT

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1. This is a singularly unfortunate and tragic case. It is an appeal against the order made by a magistrate under the Separation and Maintenance Orders Ordinance. Under the provisions of that Ordinance the magistrate, on an application made to him by the present respondent, the wife, on the grounds that her husband had wilfully neglected to provide reasonable maintenance for her and for her children, made an order that the respondent be no longer bound to cohabit with her. He further ordered that the legal custody of the three children of the marriage should be given to the respondent, and that the appellant should pay $60 a month for the maintenance of the wife and $40 a month for the maintenance of each dhild. From that order the appellant now appeals to this court.

2. The appellant has been granted an Emergency Certificate enabling him to have Legal Aid. The Certificate was only forwarded to the solicitors on the 6th of November. Mr. Sanguinetti, who now appears before me, informed me that the case has been set down for hearing without any reference to, or consultation with, counsel. I enquired from him as to what precisely he meant by this and he informed me that he understood that it was the general practice that no case should be set down for hearing without counsel being consulted as to whether that date was convenient to him.

I must confess that that sounds to me a somewhat novel proposition and I am unaware of any such practice. However, I would certainly have thought it right to grant an adjournment of this case if it had been necessary for me to do so, but having perused the record and having considered the decision made by the magistrate, I am fully satisfied that to grant an adjournment of the case would result in quite unnecessary expense.

3. The wife complained at the trial that the respondent had been cruel to her at some time. The allegations of cruelty, and certainly the date and times at which they are said to have occurred, are very far from satisfactorily proved; but I am, in this case, particularly concerned with the order made by the magistrate that the wife should have the custody of the three children aged 7, 5 and 3, the last child being a female. It is apparent that there was, upon the record of the case, a memorandum from the Causeway Bay Probation Officer addressed to the Causeway Bay Magistrate indicating that the wife had been a mental patient and was under psychiatric treatment. The appellant himself, at the trial, said that the wife was of unsound mind. It is apparent from the wife's own evidence that it was she herself who left the matrimonial home and, of course, she alleges that this was as a result of cruelty to her by the appellant in the past. It is true that the memorandum sent by the Probation Officer to the magistrate was not strictly admissible evidence at the trial; but if the state of mind of the respondent had been brought to the learned magistrate's attention, it would seem essential that he should have gone into this matter in considerably further detail before he made an order granting custody of these three infant children to the respondent. Before me the respondent said - and I quote her statement -

It would seem clearly desirable, and indeed essential, that further enquiries should be made as to whether the respondent is both physically and mentally suitable to have the supervision and custody of these children.

4. In all the circumstances of this case I am wholly satisfied that this appeal should be allowed and that the case be sent back for re-trial before a differently constituted court.

5. Mr. Sanguinetti assures me, and I accept what he says, that the appellant will be represented free of charge before the magistrate upon the re-hearing of this case. It is singularly unfortunate that there is no provision in cases such as this, which are of very great importance to the parents concerning the custody and welfare of their children, that provision is not, or cannot, be made for their legal representation in such cases before the magistrate's court. However, the fact is that there is no such provision. It seems to me of essential importance that the respondent herself should be legally represented upon the re-hearing of this case. I am appreciative, of course, of the fact that there is no legal machinery by which I can provide for such representation to be made at public expense. I propose to send a copy of this judgment to the Social Welfare Department and I can only hope and trust that some arrangement can be made for the respondent, if possible, to be represented by that Department upon the re-hearing of the case. I do not propose to make any order for costs in this case. I presume that the appellant's solicitor and counsel will be paid their costs out of the Legal Aid fund.

Representation:

Sanguinetti (J.S. & Master) assigned for Appellant/Defendant.

Respondent in person Judgment read.