David Wong v. Li Suk Bing

HCA011683/1982

No. 11683 of 1982

Claim by putative father for possession of flat occupied by former mistress and the two infant children of the association fails. Held, following Tanner v. Tanner (1975) 1 W.L.R. 1346, Horrocks v. Forray (1976) 1 All E.R. 737, Hardwick v. Johnson (1978) 1 W.L.R. 683 and Chandler v. Kerley (1978) 1 W.L.R. 693 that the defendant had a contractual licence, derivative from the interest of the children, to occupy the flat so long as the children were in receipt of full time education, and that such accommodation was reasonably required for the defendant and the children. Comments on financial limits in Affiliation Proceedings Ordinance.

No. 11683 of 1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: The Hon. Mr. Justice Hunter.

Dates of hearing: 29th November to 2nd December 1983.

Delivery date of judgment: 5th January, 1984.

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JUDGMENT

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1. This is a case of a discarded mistress. At stake is possession of flat A on the ground floor of Everwell,Garden, 1 Sheung Hong Street, Kowloon (the flat). It is not in issue that the plaintiff is the sole beneficial owner. He seeks immediate possession so that he can live there with his present mistress, their three month old child, and the two children, Alice and Arnold, the product of his relationship with the defendant. She claims to be entitled to remain in possession in their interest and her own.

2. The plaintiff was married in 1957 to his first and only lawful wife, Mary. They had three daughters. He left her in 1970 but there has been no divorce. He asserts a respect for the life long sanctity of marriage. His life style is so far at variance with this that one is forced to doubt whether this respect is not a convenient way of confining his maintenance obligation in law to one person.

3. He met the defendant in 1969. He was then 42; and she was half his age. His engineering company's offices were then in Shaw's Building. She worked elsewhere in the building as a photocopier. He courted her with persistence and skill over a considerable period. He repeatedly told her that he wanted her to live with and have a family by him. He professed an inability to live without her, and underlined this on one occasion by a contrived suicide attempt. She was flattered, and despite her misgivings became more and more involved and more and more fond of the plaintiff. She made one brief attempt to give him up but this never really started to succeed.

4. At the end of 1971 she gave up her job at Shaw's Building to return to assist her father in his photographic studio. The plaintiff persisted with his suit. Instead of waiting for her to leave Shaw's Building he waited for her to leave off work at her father's studio very much later in the evening. This touched her considerably. The plaintiff's attentions however could not be concealed from her father. He naturally and sensibly raised the strongest objection to the association.

5. When he left his wife the plaintiff took a two year lease of a single room. Early in 1972 this expired. He moved to the Y.W.C.A. whilst   he looked for a new home.In May 1972 he found the flat. It was a substantial flat and its large roof garden or balcony made it particularly suitable for a family. The plaintiff introduced the defendant to it as the potential home for themselves and their family. She felt in love with it. The asking price was in the order of $270,000 and the plaintiff at once paid a substantial deposit. Thereafter the plaintiff pressed his suit even more strongly. He passionately wanted a son and to persuade the defendant to live with him and try to bring this about.

6. Matters came to ahead over a period of about a month in July/ August. First the plaintiff persuaded the defendant to spend three nights with him at the Y.W.C.A. The depth of their relationship could no longer be concealed from her father. He was incensed but did his best to protect his daughter. His requests to the plaintiff to provide her with some security where skilfully side-stepped. The plaintiff freely promised to look after the defendant and their family forever, and did everything he could to persuade the defendant to believe that he was looking forward to a long standing and not to some temporary relationship. But he did nothing concrete to protect her.

7. Torn between her father's warnings and her affection for and faith in the plaintiff, the defendant chose the plaintiff. Some three weeks after her initial stay she returned to the Y.W.C.A. to live with him permanently. In September she realised she was pregnant. The parties quickly chose together the furnishings and fittings for the flat. The purchase in the plaintiff's name was completed on 26th October, and both parties took possession on 7th November 1972.

8. For about the next seven years the plaintiff and the defendant lived together in harmony as man and wife. The plaintiff was generous in the provision he made for her and the family. She did everything that she could to fulfil the role of wife at home and in relation to his work. Alice was born on 12th May 1973; and Arnold on 21st July 1978. The latter event was the culmination of the plaintiff's joy. He now had a son to carry on his name and to inherit his business.I am quite sure that he was then effusive in his expressions of delight and in his promises to the defendant about looking after her in the future. ''But again he was careful to avoid any commitment. On the two occasions at about this time when the defendant asked him to give her some security by implementing what she regarded as his earlier promise to put the flat in the joint names, he prevaricated. In truth I am satisfied that he had no intention ever of doing any such thing.

9. By 1979 the plaintiff was beginning to tire of the defendant. His complaint to me about her was that she was too severe and insufficiently encouraging in her treatment of the children. I regard this as a typical piece of self-justification: as feeding his pretence that the best interests of his children justified his present treatment of their mother. I believe the true reasons to be simpler. First it would seem that no woman can satisfy him for long. Secondly the defendant had to leave school early to help her father. The plaintiff, I think, regarded her as suitable to bear his children but as being insufficiently educated to have control of their upbringing. Hence his desire to entrust this to a "well educated woman".

10. First the plaintiff had an affair with his.then secretary. This became known to the defendant early in 1980. The secretary left and a brief reconciliation followed. Then early in 1982 the defendant learned that the current secretary was also the plaintiffs mistress. In July 1982 the plaintiff's sister attempted to mediate by a redistribution of property solely at the defendant's expense. Not surprisingly it failed. This led to a physical assault by the plaintiff upon the defendant and to his appearance before a magistrate. In August he stopped his payments to the defendant: and on 4th November his solicitors wrote to her terminating her licence on 1st December. The writ followed on 4th December.

11. Despite these steps the plaintiff himself only vacated the flat in July this year to take up residence with his present mistress. Their child was born in September. On Friday, 25th November proceedings taken by-the defendant under the Guardianship of Minors Ordinance and the Affiliation Proceedings Ordinance came before the Kowloon District Court judge. I have seen no documentation in  relation to these proceedings but I have been told that the judge then ordered the plaintiff to pay to the defendant $200 a week for each child upon the understanding that he would continue to pay bills for food, tuition and servants wages in the order of some $6,000 a month. Both parties are claiming custody in these proceedings and this question stands adjourned. The plaintiffs attitude here is blunt and brutal. If he is awarded custody his hope is that the children will live with him at the flat. If the defendant is awarded custody she herself has to provide the children with a suitable home i.e. one commensurate with their present one. This he said she should do out of her savings. As these amount to some $500 and as she earns $1,500 a month the task is plainly impossible. The admitted intent behind this attitude is to force the defendant in such circumstances to return the children to him.

12. Where a Court concludes that custody of illegitimate children should remain with the mother, the short answer to a putative father threatening to use his financial position in this way should be to increase the maintenance award in order to cover the cost to the mother of providing a suitable home. Unfortunately the legislature has chosen to block this route. Under the Guardianship of Minors Ordinance, (Cap..13) maintenance awards are sensibly limited only by what the Court regards as "reasonable having regard to the means" of the payer s.10(2). Under the Affiliation Proceedings Ordinance (Cap. 183) however there is a limitation of $500 a week s.5(2)(a). Unhappily this is the governing ordinance. The need to preserve a limitation calculated principally to protect wealthy putative fathers at the expense of their mistresses, and children is not obvious to me. Certainly injustice to persons in the position of the defendant would be avoided if the Cap. 13 limitation became universal. It follows that although custody lies exclusively in the hands of the Kowloon District Court judge, his decision and the future of these children may well be materially affected by my decision in this case.

13. In England the number of persons of all ages who prefer cohabitation to marriage or to remarriage has increased dramatically in recent years. So has the number of illegitimate births. Where a marriage fails there is a great weight of legislation available to assist the Court in the settlement of differences. Upon cessation of cohabitation there is none. "In disputes between unmarried couples who had broken up, the Courts did not have a general power to do what they thought was fair and reasonable in all the circumstances as they had under the appropriate matrimonial legislation" May L.J. said recently in Burns v. Burns, Times Newspaper 2nd August 1983. The Court of Appeal there rejected a claim (not advanced here) to a beneficial interest holding that it was for Parliament and not for the Courts to fill this

14. In addition to the absence of legislative assistance there is the further obstacle of public policy at common law. The old common law cases are clear authority for the view that the cohabitation here between the plaintiff and the defendant was both immoral and illegal. Notwithstanding the quantitative increase in this type of behavior, no one to my knowledge has yet had the courage to assert or hold that public policy has changed in this regard. What the Courts seem to have done in England is first to emphasise the propriety and enforcability of contracts for the benefit of the children of such association, see Ward v. Byham (1956) 2 All E.R. 318; Tanner v. Tanner (1975) 1 W.L.R. 1346, and Horrocks v. Forray (1976) 1 All E.R. 737, particularly per Scarman L.J. at p.745c. Secondly the Courts have not allowed public policy to stand in the way of the development of an equity in favour of former mistresses arising out of conduct at the time of such cohabitation see, for example, Pascoe v. Turner (1979) 1 W.L.R. and Greasley v. Cooke (1980) 1 W.L.R. 1306.

15. There are two relevant lines of authority, the first dealing with what have been called contractual licences and the second with equitable proprietary estoppel. Some of the most recent examples of the first line are: Tanner v. Tanner (supra); Horrocks v. Forray (supra); Hardwick v. Johnson (1978) 1.W.L.R. 683; Re Sharp (1980) 1 W.L.R. 219 and Chandler v. Kerley (1978) 1W.T.R. 693. Although  the pattern is not universal the basic approach in these authorities has been contractual and common law with equity only playing what Lord Scarman described in Chandler's case as a "supportive and supplementary" role. Although I cannot but agree with Brown-Wilkinson J.'s dictum in Sharp that "the principles lying behind these decisions have not yet been fully explored and on occasion it seems that such rights are found to exist simply on the ground that to hold otherwise would be a hardship"; it does seem to me possible to identify two stages in the inquiry.

16. The first is to consider the circumstances in which the occupant both took possession and remained in possession of the premises in question. Here it seems to me that the Courts have not looked solely at the events ruling at the inception of the occupation, but at the changed circumstances, those ruling immediately prior to the hearing. The question here is whether the occupant has only what can be described as a bare licence, or whether the licence can properly be described as contractual. For this purpose the basic contractual ingredients of consideration, certairty enforcability and intent to create legal relations must be shown, see particularly Megaw L.J. in Horrocks at p.742e.

17. If the licence can be shown to be contractual, the second stage is to ascertain its terms express or implied. Here the cases speak equally of inference and imputation. In this type of family arrangement situation where the parties have not expressly provided for the events that have occurred, the Courts have applied their own standard of reasonableness: e.g. "It cannot be supposed ..... it  would be wrong to infer" per Lord Scarman in Chandler p.698G. It then attributes these standards to the parties by in substance writing reasonable terms into the contract. Perhaps the most extreme and surprising example is Hardwick v. Johnson, where the Court declined to say what provision for determination it was reasonable to read into the licence beyond concluding that the event had not then occurred.

18. Applying these principles to the present facts, it is in my judgment right to regard the defendant's licence as contractual. Public policy and illegality exclude any claim by her alone to occupy; but not a claim derivative from the interests of the children. On any objective view there was here an intention to create legal relations, the circumstances being the converse of the husband and wife cases. There was I think sufficient consideration initially in her implied promise to care for the unborn child and for any future children; and after their birth in the reaffirmation of such promise implicit in its performance. I see no greater need than did the Court of Appeal to consider whether this makes the licence contractual in its inception or only from some later date. The circumstances are too elemental to give rise to any problem of certainty. I therefore conclude that the basic contractual requirements are here present.

19. I therefore turn to consider its terms. Unquestionably the closest authority here is Tanner. Indeed the principal difference between that case and this is that the children there were born before the property was occupied. But Lord Denning's observations on derivative duties at p.1350c equally apply. The Court's conclusion was to infer a licence to the mother to occupy "so long as the (children) should be of school age and that such accommodation should reasonably be required for the defendant and her children" per Brightman J. at p.1352C. I gratefully adopt this formulation. With one alteration it seems to me the appropriate inference here. My alteration is the deletion of the phrase of "school age". From what I have heard of the children it seems likely that they will be receiving education beyond school age. I would therefore substitute "receiving full time education".

20. It follows in my judgment that the plaintiff's claim for possession fails and that the defendant is entitled to a declaration in the above terms but not in the disjunctive form claimed in paragraph (ii) of the prayer to the counterclaim. I emphasise this because the flat might cease to be reasonably required before the cessation of the children's education for a number of reasons e.g. the provision of another suitable home. I will hear counsel on any further relief.

21. In these circumstances I can deal very shortly with the alternative defense of equitable proprietary estoppel. This is said only to arise where the claimant has "at law no ..... licence other than a licence revocable at will" Pascoe v. Turner (1979) 2 All E.R. 945 per Cumming Bruce L.J. at page 950g. Although not all the . authorities draw this clear distinction I am happy to adopt it. Once its.original strict proprietary limits are left behind, I have had much difficulty in determining how far this concept goes; and not least difficulty in treating a period of deliberate cohabitation as constituting detriment to the woman within this concept without putting cohabitation on a superior plane to marriage. It is sufficient to say that on my findings the point does not arise for decision.

Representation:

Mr. Wahab instructed by Messrs Walter Yeung & Co. for the Plaintiff.

Miss Audrey Eu instructed by Messrs. Haldane Midgley & Co. for the Defendant.