Ng Han Lai Wah v. Ng Cheei Fai

HCMC000006/1980

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

DIVORCE JURISDICTION

SUIT No. 6 OF 1980

(formerly V.D.J. 1172/1978)

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Coram: Mr. Commissioner Liu, Q.C. in Chambers.

Date of Judgment: 6th February, 1980.

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JUDGMENT

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1. On the 3rd February, 1979, the petitioner applied for and obtained an uncontested decree nisi of divorce against the respondent. All prayers for ancillary relief in the petition together with custody of and access to the child of the family were adjourned to a date to be fixed.

2. The absent respondent was said to have had de facto custody of the said child, then almost seven, and the petitioner was granted interim access every Wednesday from 5 p.m. to 6 p.m. and every Sunday from 11 a.m. to 5 p.m. Thereafter, the said child was taken to school in the morning by the respondent but was collected by the petitioner. The petitioner was then working in a bowling alley. Whenever necessary, she was given permission to take leave of absence for the purposes of tending on the needs of her daughter who was then in a morning school. The petitioner would collect her and serve her lunch before returning to work. The respondent returned about seven in the evening and would prepare supper for the child. In another words, the petitioner managed to gain more access than as was specified in the decree nisi. That arrangement continued until about the end of April 1979 when the petitioner, without notice to or consent of the respondent, removed the child to a new unknown address. That emotional but nevertheless premeditated act on the part of the petitioner has led to multifarious proceedings heralded by the respondent's summons for an injunction to restrain the petitioner from removing the daughter out of his de facto care and control.

3. The respondent's injunction summons came before me on the 11th May 1979. It was fixed down for one day, and from the very inception it was the general consensus that the estimate was hopelessly inaccurate. After cross-examination of the petitioner in which foundation for her claims and explanation was laid, great need was felt for a more comprehensive de facto custody order with interim access. In substance, a split de facto custody order was devised whereby the petitioner was given the child from Monday morning to Friday evening and the respondent from Friday evening to Monday morning. The proposed order for custody was principally motivated by the desire of providing equal opportunities to both parents with a view to paving the way to eventual assumption of legal custody by one of them. At the join invitation of both Counsel and for good measure, each of the parties was ordered not to disturb or otherwise interfere with the de facto custody in favour of the other of them. These legal sanctions were more honoured in the breach than in observance.

4. On the 4th June, 1979, the parties returned to the District Court, and evidence of one Mrs. Kwan was taken by consent. In her report dated the 1st June 1979, the Social Welfare Officer suggested a two months' moratorium to allow sufficient time to elapse for the new arrangement to either prove or disprove itself.

5. A final Social Welfare report was made on the 9th August 1979. The Social Welfare Officer was quite non-committal, but it was emphasized that in the best interest of the said child of the family, a speedy conclusion ought to be attempted.

6. Thereafter, the respondent deprived the petitioner of her right to de facto custody, and on the 16th August 1979 the petitioner filed a summons for the re-delivery of the daughter. That summons was resolved out of Court and was withdrawn.

7. On the 13th September 1979, the petitioner caused to be filed a further summons for custody, and on the 22nd January 1980, another summons for custody was issued by the petitioner including a prayer for leave to remove the child out of jurisdiction. In the meantime, there was also a summons for maintenance filed by the petitioner on the 17th January 1980.

8. One or all of these new summonses came before Judge Jones in Chambers, but the proceedings were adjourned. Thereupon, counsel for the parties personally secured from me an early date for hearing on the 25th January.

9. On the 25th January 1980, the four summonses before the Court were: (1) the respondent's summons for injunction filed on the 2nd May 1979 which was part-heard but would no longer serve any practical purpose, (2) the petitioner's summons for custody filed on the 13th September 1979, (3) the petitioner's summons for maintenance filed on the 17th January 1980 and (4) the petitioner's summons for custody and leave to remove the child out of jurisdiction filed on the 22nd January 1980. By virtue of Rule 97(2) of the Matrimonial Causes Rules, the contested prayer for leave to remove the child out of jurisdiction was, at the joint request of both counsel, transferred to the High Court together with the pending proceedings in their entirety. Accordingly, by consent, four issues were framed, and all other prayers in the existing summonses were withdrawn.

10. The four agreed issues for determination in the High Court are as follows:

11. The respondent was examined cross-examined and re-examined after the evidence of one Mr. Paul Liu, the Deputy Director of the International Rescue Committee Incorporation, Hong Kong Branch, and further evidence from the petitioner.

12. The petitioner is no longer working in the bowling alley. She has secured day employment as a saleslady at $1,500 a month with a ladies fashion shop, and she is now free to care for her child in the evening. The respondent is a caretaker of a building, and with some extra annual receipts of $2,000-$3,000, his monthly income stands at about $1,300. The respondent volunteered the information that his mother is in Singapore and expected to leave him a legacy by will. The respondent indicated that he would thus come into funds in about 2,3 years which will be adequate to finance 10 years' university education.

13. The respondent has a brother, a sister and some other relatives in Hong Kong. At one time, it was suggested that his sister-in-law would assist in the care and upbringing of the child of the family. Later in time, it was proposed that his sister would assume that responsibility, but at the hearing on the 25th January 1980 the respondent supplied the names of a Mrs. Ho, one of his sub-tenants, and one Mrs. Leung as being the current willing candidates. The petitioner told the Court that the respondent was not on good terms with his relatives due to differences of opinion. It would seem that the relationship between the respondent and his own flesh and blood is not as harmonious as it is sought to be made out. The petitioner is a Eurasian having no relations in Hong Kong or in America. Her father died in China. Her mother is believed to be in the area of San Francisco, but she has never heard of or from her mother since childhood. The petitioner has a friend in San Francisco who is a divorcee and apparently quite well to do. She also claims to have another friend in Los Angeles.

14. The petitioner lives in a very small bedroom sharing a bed with her daughter. The respondent occupies a bedroom and what has been described as a "big living room", the area of which was given as 100 sq. ft. The respondent would also share the bed with his daughter during his allotted de facto custody.

15. The petitioner and the respondent were married in China in 1970, and they came to Hong Kong in June 1973 with their only daughter. In fact, there is little to choose between the petitioner and the respondent on the material side, in as well resources as in ties.

16. Both parties made no attempt to conceal their revulsion of feeling, and each had stigmatized the other of them as a deceiver. There were depressing scenes of tears interspersed with aspersions cast on one or the other in the course of their evidence. But there is not a shadow of doubt that as regards their love and affection for the child of the family, both parents are second to none. The petitioner has evinced an intention to abandon her covetted right to immigrate to America without her daughter, and the respondent has exhausted his entire savings for the past few years in the acquisition of a piano for the child. Both parents were visibly tense, but the question of custody must be resolved and should best be granted to one of the parents as soon as possible in the hope that at least the daughter may be spared. The Court had an opportunity to see and speak to the child who appeared to be an intelligent little girl, and it is only to be expected that she has exploited the situation to her best advantage.

17. There are no less than three Social Welfare Reports. The first is dated 6th April 1979 in which some leverage was given to the respondent, principally because of his additional resources. The petitioner seems to be a hard-working woman who has proved herself to be adaptable to circumstances with great determination to seek a better life for herself and her daughter. The next Social Welfare Report is dated the 1st June 1979 in which the Social Welfare Officer suggested a 2 month' postponement. The last Social Welfare Report is dated the 9th August 1979 in which the Social Welfare Officer became discreetly indecisive.

18. There have been a number of allegations and counter-allegations, both in parental approach to the said child of the family and on personal conduct. None of these allegations has really been substantiated.

19. The petitioner has also shown herself to be a woman more than capable of maintaining herself independently. She seems to have no difficulties in gaining and retaining support from the American Consulate and the International Rescue Committee Incorporation. She has also been able to make some advancement in the new society in which she finds herself. She applied to go to America with her daughter as immigrants in May 1976, and there is a possibility that her application would be affected after June 1980 i.e. 7 years after her arrival. Both the American Consulate and the International Rescue Committee Incorporation seem to be extremely co-operative in her case. In fact, the petitioner has been guaranteed travelling loans and two years' security by the Head Office of the International Rescue Committee Incorporation.

20. Misconduct tantamount to contempt of Court in the removal of the child of the family in breach of one or another Court order is unbecoming. Such misconduct committed by both was motivated by the parties' burning desire to gain exclusive custody of the child in question in very distressed situation, and the irritation thus caused was certainly not appeased by the mutual disgust held by one for the other.

21. The respondent's caretaker job seems to be quite secured, but it would appear that the respondent's income and social status will not be expected to be appreciably improved in the future. The respondent himself has given no evidence in that direction, but his very testimony that he would endeavour to save at least $1,000 a year for his daughter's educational expenses reflects in some degree his own modest aspiration.

22. On behalf of the respondent, it was strenuously claimed that a state of continuity has been established by the respondent's constant share of custodial responsibility and that there are no justifiable circumstances for such continuity to be disrupted. There also seems to be much substance in counsel's observation that judging from the past conduct of the petitioner, there is a real possibility that the child, once permitted to leave Hong Kong, would be kept out of the life of the respondent forever. There has been open conflict between the petitioner and the respondent and often in the presence of the child. But for such possibility, in the best interest of the daughter, custody or access should best be enjoyed with the least opportunity for interference, and the proposed separation by the Pacific Ocean may well be a blessing in disguise. Whilst recognizing such possibility, counsel for the petitioner submitted that the primary consideration can only be the welfare of the child and whether it would be in her best interest to accede to the application for leave.

23. On the issue of custody, it was earnestly urged upon this Court by counsel for the petitioner to give full weight to the oft-quoted statement at page 316 of Bromley on Family Law, 5th Edition: "Common sense dictates that normally the mother should have the care and control of young or sickly child (particularly little girls)". The daughter is becoming bashful, and as the Social Welfare Officer recorded in her report, she complained of some block in communication between herself and her father on delicate matters. I have no real doubt that custody ought in these circumstances to be granted to the petitioner.

24. For persons in their station in life as the parties to these proceedings, a new life in America as offered by the International Rescue Committee Incorporation is decidedly preferable to what future holds for the child in Hong Kong. With an enterprising petitioner for a mother, mother and child can be expected to look forward to a better future as American immigrants. The petitioner has offered to return the child to Hong Kong from America twice a year if the respondent is prepared to contribute, in equal shares, the air-fares but otherwise at least once a year at her own expense. The respondent has declined her offer. There is every likelihood that the petitioner would not honour her undertaking, but I take the view that "continuity" has lost much of its prominence in the light of the advantages which NG Wing is hoped to gain overseas. However, some means must be devised to fortify the petitioner's undertaking. It has not been an easy decision to make.

25. As for maintenance, I would order nominal maintenance for the petitioner and make an unusual order in favour of the daughter. The petitioner has indicated that she herself would seek no maintenance from the respondent, nor for the child of the family, but maintenance for the daughter is a question primarily for the Court's determination.

26. In conclusion, I order (1) custody of NG Wing, the said child of the family, be granted to the petitioner, (2) access be granted to the respondent (a) from half an hour after school every Friday to half an hour before school on the following Monday AND to the extent of half of all public holidays exceeding two days inclusive of Chinese New Year Eve and the whole first day of Chinese New Year up to 8 p.m. so long as NG Wing shall reside in Hong Kong and (b) for at least one month each summer after NG Wing shall have become a landed American immigrant, (3) leave be granted to the petitioner to remove and keep the said NG Wing out of jurisdiction conditional upon (a) the issuance of American Immigrant Visas to both the petitioner and her said daughter, (b) the petitioner giving her undertaking to the Court to return the said NG Wing to Hong Kong from America for at least one month every summer at her own expense and, if the respondent should send a return ticket by air to the petitioner not later than 30th November each year, 14 days during Christmas or Easter holidays and (c) the petitioner fortifying her undertaking by filing herein a written undertaking in the same terms within one month from to-day and within the same period serving a copy thereof on the American Consulate, Immigrant Visa Section and the International Rescue Committee Incorporation, Head Office, with an intimation that any breach of her said undertaking is punishable as a contempt of Court by imprisonment, (4) the respondent to pay to the petitioner for her own maintenance $1 per annum payable on the first day each year commencing from the 1st January 1981 and for the maintenance of the said NG Wing $100 per month, such monthly sum to be deposited by the respondent himself on the first day of each month commencing from the 1st March 1980 in a bank deposit account to be opened in the respondent's own name for the benefit of the said child of the family including payment of any part of her air-fares, (5) costs against the respondent and (6) the respondent's own costs to be taxed in accordance with the Legal Aid (Scale of Fees) Regulations.

Representation: