Wong Yee Ling v. Ng Tung Hoi

CACV000029/1969

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 29 OF 1969

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Coram: Mills-Owens, J. in Court.

Date of Judgment: 26 March 1970

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JUDGMENT

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1. This is an appeal from the decision of a Magistrate's Court in proceedings brought by the appellant mother under the Infants Custody Ordinance (Cap.13), wherein she sought, against the respondent father, custody of the youngest child of their marriage, a son now aged 10 1/2 years. The parties are locally domiciled Chinese and went through a customary form of marriage in Hong Kong in 1955. There were four children of the union, all now living, there being two other sons now aged approximately 15 1/2 years and 11 1/2 years and a daughter now aged approximately 13 1/2 years. In March 1965 the parties agreed to dissolve their union and, as is commonly done, executed a written agreement to that effect. The agreement provided that all four children should be in the custody of the respondent father. There were further provisions in the agreement, to the effect that Madame Chung Sui-mui (the appellant's adoptive mother) be appointed to take care of the children, and that the appellant might visit the children once a week.

2. On the hearing of the appeal the parties consented to a report being provided by the Department of Social Welfare, which has been of considerable assistance in clarifying the salient facts.

3. It appears that the parties blame each other for the failure of their union, the appellant contending that the respondent father failed to provide sufficiently for the support of herself and the children and was disrespectful to her and the respondent contending that she was addicted to gambling. On the hearing of the appeal the respondent alleged, by way of address in the Court, that she was immoral. There is no evidence whatsoever to support this allegation.

4. For 2 1/4 years following the 'divorce', i.e. until about June 1967, the children and the respondent father lived with Madame Chung at her home in Chaiwan. The appellant mother visited them often, during the absence of the respondent at work. In about june 1967 the respondent departed from the home of Madame Chung without warning, taking the children with him. This seems to have come about because the appellant had chastised the eldest son, but the incident appears to have no sifnificance in itself. For about a year following the removal from Chaiwan the appellant remained in ignorance of the children's whereabouts. She then become aware of their place of schooling at Kwuntong, learning this from the eldest son, Kam-yuen, on a visit made by him to Madame Chung's home at Chaiwan. The appellant then commenced to visit the children at school once a week, buying them food etc. The respondent learnt of this and transferred three of the children to other schools, the fourth (Kam-yuen) commencing work work at a factory. Kam-yuen continued to visit the appellant. The boy hose custody is now in question, Kam-biu, was transferred by the respondent to a school at Wongtaisin. There he developed some skin disease and his attendance at school ceased on account of it. The respondent then placed him with his (the respondent's) sister, Madame Ng Lai-wah, with whom the boy lived for some few months. On the 2nd March 1969 the appellant mother, having become aware of the boy's whereabouts, went to meet him outside Madame Ng's home. She saw his skin condition and decided to take him to a doctor for treatment, leaving a note for the respondent saying she would return him in a week's time. The respondent reported the matter to the Department of Home Affairs. In consequence the appellant decided to bring the matter before the Magistrate's Court and issued a summons claiming custody. The hearing of the summons came to a conclusion in July 1969 when the learned magistrate dismissed her claim. Nevertheless, ever since the boy has remained in the appellant's actual custody. She abandons any claim for maintenance of the boy; and Mr. Fairbairn who appeared for her on the appeal informs me she also will not seek his adoption by Mr. Ng Tak, her present husband, and herself.

5. It is necessary to observe that when the appellant's summons was heard she was co-habiting with Mr. Ng Tak; in June 1969 they were married, with the consent of his parents. Mr. Ng Tak has a daughter aged about 2 1/2 years by a previous union who now forms part of his household.

6. All four children are attached to both their father and mother, but it is probably true to say that the boy, Kam-biu prefers to be with his mother, the appellant. The children are fond of one another and the other three children would wish Kam-biu to live with them. If the boy is returned to the respondent father he will either have to be boarded at a school or go to live with Madame Ng, the father's sister. Kam-biu is not so well-disposed towards Madame Ng but that may be accounted for to some extent by the fact that he was in isolation at her home for some time during and due to his skin affection. Further, Madame Ng has a young son of her own and Kam-biu appears to think she is more partial to her own child, which one would think is more than likely. The other children are well-disposed towards Madame Ng.

7. It is probably the case that the respondent father has done all he can for the four children's well-being and enjoyment having regard to the fact that he must go out to work daily. He proposes that Kam-biu should return to live with Madame Ng, together with an elder brother, the other two children being school-boarders. He strongly objects to the boy remaining with his mother, having obviously conceived the greatest ill-feeling towards her. If the boy goes to his mother, the appellant, he will be cut off from his brothers and sister, at least to some extent, and from his father. It was these considerations, I think, which most influenced the learned magistrate in dismissing the appellant's summons for custody. Living with his mother, the boy must also live with a step-father, concerning whom it is right to say the report of the Social Welfare Department is very good. It is reported that he treats the boy as if he were his own child. The step-father is comparatively well off financially, being a tailor earning about $1,200 per month; he has a home adequate enough to accommodate the boy, as well as his young daughter by his previous marriage, and sufficient means for the boy's schooling. At Madame Ng's establishment, she having five children of her own, accommodation for the boy might be somewhat inadequate; he would either have to sleep with Madame Ng or put up a bed in the living-room. The respondent father lives elsewhere, having a small dark room hardly adecuate for himself and the eldest son, Kam-yuen. It might, possibly, be difficult for him to meet the cost of schooling for the boy Kam-biu if he were a boarder.

8. The first paragraph of the report of the Social Welfare Department reads as follows:-

Against this must be set the concern of the respondent for the boy and, more importantly, the probability that if the boy remains with the appellant mother he will, at least to some extent, become detached from his father and brothers and sister. In the concluding passages of his Findings, the learned magistrate said:-

(As mentioned above, the complainant mother and Mr. Ng Tak were subsequently married). The Findings continue -

9. It may well be more congenial to the boy, as at present, that he remains with his mother, but obviously his future standing in relation to his father, and more particularly perhaps to his brothers and sister, must be given great weight.

10. In deciding the appeal I proceed on the basis that the welfare of the boy is the paramount consideration. Macfoo J. so decided in the case of Lui Yuk Ping v. Chow To (1962) H.K.L.R. 515, from which I have derived much assistance. The learned judge in that case relied upon the English case of In re. A. and B. (infants) (1897) 1 Ch. 786 as abundantly establishing that in case under section 5 of the Guardianship of Infants Act, 1886 (the source of section 2 of our Infant's Custody Ordinance (Cap.13)) the welfare of the infant is the prime consideration. The point admits, I think, of some doubt. At first instance, in the English case, Chitty J. made no reference to it. On the appeal Lindley L.J. also made no reference to it. It is by no means clear that Rigby L.J. accted the principle. Lopes, L.J., however, said, at page 792, that the judge 'must look primarily, I am entitled to say, to the welfare of the infant'. We do not, in Hong Kong, have a statutory provision corresponding to section 1 of the Guardianship of Infants Act, 1925 that the Court shall regard the welfare of the infant as the 'first and paramount consideration'. But the English Courts have held that this merely re-states the position as it was before the Act (see, e.g., Re Thain, Thain v. Taylor (1926) Ch. 676; but see also Re Carroll (1931) 1 K.B. 317). In Hong Kong, however, we have the position that when the Infants Custody Ordinance was first enacted in 1935 the provisions of the English 1886 Act were adopted; the principle enunciated in section 1 of the English Act of 1925 was not adopted - it must be presumed deliberately as that Act was, obviously, then in force in England, and, moreover, some of the provisions of the 1925 Act were adopted in the Hong Kong section 2. It is for this reason that I say the position admits of a doubt. However the principle appears to be generally acted upon in cases such as the present, in Hong Kong, and I proceed accordingly although I would wish to see the principle specifically enacted here.

11. It is argued by Mr. Fairbairn, for the appellant mother, that the learned magistrate paid too much regard to the Chinese conception of the institution of a family in the case of a customary marriage, in particular, first, in regarding the appellant mother as being no longer a member of the respondent's family; secondly, in having regard to the boy's right to succession or inheritance; and, thirdly, in holding that an award of custody in favour of the appellant would mean, as the magistrate appeared to indicate, the severance of all ties between the boy and his family, meaning the father's family. Here Mr. Fairbairn relied on the case of Li Po Kam & Li Po Yung v. Li Ling Shi and Lo Tsung Pak (1908) 3 H.K.L.R. 170, to the effect that where an English Statute is introduced into the law of Hong Kong without reference to Chinese custom it must construed as it stands, i.e. without any modification such as Chinese custom would imply if it had been introduced in such terms as 'subject to local circumstances' or 'subject to the circumstances of the inhabitants'. I accept the authority of that case, which was followed in the case of Ng Tek Tong v. Wong Cheung Che (1909) 6 H.K.L.R. 70, but does it follow that a court must, disregard the Chinese conception of a family? It is, undoubtedly, correct to say that the Act of 1886, upon which our section 2 is based, was a 'Mother's Act' intended in England to remove the father from his former dominant position in the matter of custody and upbringing of the children of the marriage, but does the adoption of the provisions of the Act of 1886 in our section 2 mean that one must ignore the local conception of a family, in particular the principle of exogamy and the special relationship between a son and his father according to local ideas? I have heard only a one-sided argument in this respect and intend therefore to proceed simply on the basis of what is best for the boy.

12. I must, I think, take the view that the breaking-up of the marriage between the parties was the fault of the appellant; it is significant that custody of all four children was agreed to go to the respondent father, although I agree that does not bind me. There is no fault to be imputed to him and he has done his best to keep his children together. Mr. Fairbairn pointed out that the father is obliged to send some of the children to boarding school and thus is himself splitting the family; I do not accept that this is the result. It was also suggested that this is a conflict between the mother and the aunt Madame Ng; I do not accept that either. The respondent father appears to me to be a man of character, acting from the best motives. It is very important in my view that the boy should retain association with his father and his sister and brothers, and in his best interests. It has been said on many occasions that a boy of such an age should be with his father. It is not a binding rule or even one of first impression; nevertheless, there is some sound common-sense in it, other things being equal. The report of the Social welfare Department lays too much emplasis, in my opinion, on the emotional attachment between the boy and his mother. No doubt he finds it more congenial to be with her, but the question is what is best for him. In my judgment the learned magistrate came to a correct decision in the matter and accordingly I would dismiss the appeal; the appellant being at liberty to make application for access if terms of access cannot be agreed.

Representation:

Mr. Fairbairn for appellant.

Respondent in person.