Lee Wai Chu v. Lee Yim Chuen

HCMP002678/1983

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS NO. 2678 OF 1983

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BETWEEN

Coram: Hon. Power, J.

Date of Hearing: 2nd May 1984

Date of Delivery of Judgment: 2nd May 1984

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JUDGMENT

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1. In this matter the Applicant, Madam Lee Wai Chu, is asking that she be given custody, care and control of two children of a marriage which was contracted between her and the Defendant, Lee Yin Chuen in Canton, China on the 27th November 1973.

2. The Plaintiff was then living in China and the Defendant was a Hong bong resident. There were two children born of the marriage, Lee Ting Yuk, a female, born on the 9th September 1974 and Lee Cheuk Wah, a male, born on the 27th April 1977. It is the second child, Lee Cheuk Wah, that we are concerned with in this application.

3. Both of those children were born in China, however, on the 2nd October 1977 the Plaintiff carne to Hong Kong with both children resided with the Respondent in a flat in Gage Street, Central, Hong Kong.

4. The relationship between the Plaintiff and the Defendant deteriorated until in June 1978, the parties commenced to live apart. At that time the younger child Lee Cheuk wah had been taken from the matrimonial home by the Defendant and was, it would appear, being cared for by his mother. The Plaintiff when she left the matrimonial home in June 1978 took the older child away with her.

5. On the 11th December 1978, she commenced proceedings in the Victoria District Court applying for custody of the two children as well as for a separation and maintenance order.

6. However, the Defendant, having been interviewed for the purpose of making a Social Welfare Report, which had been called for by the Court, disappeared with the infant Lee Cheuk Wah.

7. On the 22nd August 1979, Judge Jones, as he then was, made an order giving custody of both children to the Plaintiff.  The Defendant did not appear when that order was made and his whereabouts were then unknown.

8. On the 18th April 1980, the Defendant issued a petition for divorce. This petition could not be served upon the Plaintiff because his whereabouts were still not known. However, a decree nisi was eventually made upon that petition on the 6th December 1980.

9. His Honour Judge Hopkinson awarded custody of the older child. Lee Ting Yuk, to the Plaintiff and stated that it was impracticable for the Plaintiff to make arrangements for the younger child because his whereabouts were not then known.

10. In October 1983, the Plaintiff, having received information from the Immigration Department, was able to establish the whereabouts of the Defendant and the younger child and in consequence these proceedings were commenced.

11. A Social Welfare Report has been obtained in these proceedings and it reveals that the Defendant is presently residing with his mother Madam Kwong Yung, who is aged 81. His son, Lee Cheuk Wah, the subject of the application, who is now aged 6 years and 10 months, is residing with his father at that address. It appears that it is a rented two-bedroom flat of about 400 sq. ft. and that the Defendant sublets one room at $700 per month to a couple with 2 children. The social welfare officer found that the premises were neatly kept and adequately furnished.

12. The information given to the social welfare officer by Mr. Lee was that he had a total income of about $3,000 per month. It is of importance that his major job is a cleaning job at the building where he is living.  He told the social welfare officer that he takes his son to school and that he also at 3 p.m. collects his son and brings him home from school. It appears that Mr. Lee's second job which is a cleaning job with a restaurant is done after the return home of his son from school and before 6 p.m.

13. The Plaintiff presently resides with the older child in a flat at Sau Mau Ping Estate, Kowloon which is about 200 sq. ft. in size. This was provided for her by the Housing Department and she pays rental of $118 per month for it. She says that there is ample accommodation for the younger child should the Court give him into her care and control. She says that she receives social welfare of $760 per month and that her brother, who is a hawker, gives her another $100 per month because she assists him in his business.

14. Let me say that as far as the physical conditions of life are concerned, there does not seem to me to be anything really to choose between the premises of the father and those of the mother.

15. The social welfare report also indicated that the child, Lee Cheuk Wah, is studying at Kei Yon Primary School.  It said that his teacher, Miss Pang, had said that his conduct and academic performance have been most satisfactory and that he is, in fact, the class captain. Miss Pang says that he is happy at school and appears to be receiving adequate care and attention at home and is always neat and tidy. The report said that a Mrs. Chiu, a co-tenant, had stated that the boy was obedient and that he required her assistance infrequently.

16. The Social Welfare Officer formed the view that both his parents were genuine in wishing to have the custody of the child. She did remark, and this was a matter which had been remarked on in an earlier social welfare report that the Defendant in his desire to have custody of his son was to some extent motivated by his wish to perpetuate the family line but she went on to say that he seemed very concerned about the boy.

17. Her recommendation was as follows. "Both Mr. Lee and Madam Lee are most eager to claim custodianship over Cheuk Wah, the child in question. Both impressed the undersigned to be genuinely concerned about him and capable of rendering adequate care to the boy. But it is Cheuk Wah's preference to stay with his' father and paternal grandmother with whom he has already developed strong emotional ties. The information provided by the boy's class teacher and the co-tenant Mrs. Chiu also confirmed that he has indeed been receiving proper care and attention. As uprooting a child from his present living environment is likely to be a traumatic experience and can possibly pose problems in adjustment, the undersigned is inclined to recommend the custodianship of Cheek Wah to his father Mr. Lee with reasonable access to Madam Lee."

18. The Court is, of course, influenced by the report of a social welfare officer who has had the benefit of seeing the parties and of seeing the child and of inspecting the environment and also in this case, of interviewing other persons who are concerned with the day-to-day activities of the child. However, the Court is by no means bound by any recommendations in such a report but will, in the light of all of the evidence placed before it, come to its own decision in accordance with the paramount consideration which is the welfare of the child. The Court is, to some extent, impressed by the wishes of the child concerned but, again, these wishes have to be put squarely into the background of the whole situation and the Court bears in mind, in such cases, that the wishes of young children are often ephemeral and change from day to day.

19. What is, in my view, of particular importance in the present case is that the child is well integrated into his school and is happy and well adjusted in his present surroundings. I am fully aware of the considerations that have been urged as regards the conduct of the father. In this regard Mr. Clough very properly pointed out that there was an order wade by Judge Jones giveng custody of the child to the mother and that the only reason this order was not complied with was because the father could not be located. Mr. Clough, while recognizing that the paramount consideration was the welfare of the child, pointed out that that was not the only consideration and asked the Court to take into account the conduct of the father and also that, as was generally recognizes by Courts in situations such as this, it was better for young children to be together and to be in the care of their mother.

20. I have taken all of these matters into account.  I am nonetheless satisfied, as was the social welfare officer, that the proper order to make is one that will leave the care and control of the child with the father. I do so, bearing in mind that the child will be able to see his mother and sister frequently and that he will be able as was contemplated by the social welfare report, to spend alternate weekends with his mother and sister. The child will remain a ward of Court. I give care and control of the child to the father. The mother is to be given staying access to the child on alternate weekends and the child is to spend half of all school holidays with his mother and sister.

21. The father has said that he is prepared to make a contribution of $300 per month towards the support of the daughter. I can do no more in these proceedings than note that he has made such an offer and to indicate that it is proper that he should make such payment. I cannot make any order in that regard as that matter is not presently before the Court. I will not make any specific order with regard to the working out of the access arrangements as I consider that these best left to the commonsense of the parties. I make no order as to costs except that the costs of the Plaintiff are to be texed in accordance with the Legal Aid Regulations.

22. My attention has been drawn to the fact that an order made by Judge Jones subsists, there is no formal application before me to vary this order, however, it seems to me in the circumstances that I should, even though there is no formal application, make an order varying the order of Judge Jones. The changed circumstances give me jurisdiction to deal with such an order and I vary the order of Judge Jones by quashing it in so far as it relates to the child, the subject to this application, who will, as 1 have indicated, remain a ward of Court with care and control to the father end access to the mother.

23. Both parties are given leave to remove the child from the Colony for holidays as long as the consent of the other party has been obtained to such removal.

Representation:

Miss S. Chan of Director of Legal Aid for Plaintiff. Defendant in person.