Li Ip Man Lui v. Thomas Li Wang Chung

HCMC000109/1966

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 109 of 1966

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Coram: Rigby, J.

Date of Judgment: 8 June 1968

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DECISION

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There are for consideration two summonses by the petitioner for leave to remove two children of her former marriage permanently out of the jurisdiction of this court, that is to say, to Canada.

The first summons concerns the son, Theodore, now aged just over three years and in respect of whom an Order for Custody, consented to by both parents, has been already granted to the petitioner on the 31st July 1967.

The second summons concerns the daughter, Isadora, now just under six years of age, in respect of whom an Order for Custody, together with the custody of the elder son, Alwin, now aged 8 years and 4 months - both such orders being made with the consent of both parents - was granted as part of the Consent Order dated the 31st July 1967 to which I have already referred.

2.Before considering the merits of these applications it is essential to consider the circumstances which have led up to the present situation.

The petitioner and the respondent were married in December 1957 and divorced ten years later, in December 1967. There are three children of the marriage, a son Alwin, born in February ...(illegible) a daughter Isadora, born in June 1962, and a younger son, Theodore, born in May 1965.

I was informed that both petitioner and respondent are children of well-to-do Chinese parents. The respondent is a pharmacist by occupation but it is clear that he is by no means dependent on his salary for his livelihood. The respondent apparently had a marked pre-disposition for gambling, primarily if not exclusively on horses and to a lesser extent on dogs, and it is sufficient to say that that fact, coupled with the resulting neglect of, and indifference towards, the petitioner was the cause of the breakdown of the marriage. In October 1965 the petitioner left the matrimonial home. In October 1966 she instituted proceedings for divorce on grounds of cruelty, at the same time asking for custody of the three children of the marriage.

In November 1966 the respondent filed an Answer to that petition denying the allegation of cruelty, alleging, inter alia, that the petitioner was persistently lazy and unable to assume family responsibilities, that she was given to outbursts of temper directed towards the children, that she was unfit to be entrusted with their custody and he, in turn, claimed custody of them. The petitioner, in December 1966, filed a Reply to that Answer specifically denying the allegations made against her.

In May 1967 the case was certified by the Registrar as ready for trial and the estimated length of time it would take was assessed at three days. The case was set down for hearing on the 17th July but subsequently re-fixed for the 4th December, with a fresh estimate of five days as being the probable length of time it would take.

In July the respondent, through his legal advisers, intimated that he did not intend to defend the case, and on the 31st July an application was made to a Judge in Chambers seeking his approval to a Consent Order directing :-

On the 10th August the petitioner filed an application for leave to have the divorce petition heard during the court vacation - which had, of course, by then already commenced. The ostensible reason for expediting the hearing of the petition, as disclosed by the petitioner's affidavit in support of the application, was that she was very worried about the health of her parents who were then away on a world trip and that she sought to join them in Canada in response to a request from her mother. In the light of subsequent events it is, to say the least of it, a matter for some suspicion as to whether the health of the petitioner's parents and her anxiety, on that account, to join them in Canada was in fact the principal and underlying reason for her request that the hearing of the petition should be expedited. However, with the laxity with which many of these so-called urgent applications for hearing during the court vacation seem to be so often treated, her application was acceded to and her petition for divorce on grounds of cruelty heard and determined on the 2nd September - during the subsisting court vacation. The petition being undefended, as is usually the practice in such cases no reasoned judgment was delivered; a decree nisi was simply granted on grounds of cruelty, the judge certifying at the same time, as is a necessary condition precedent to the granting of a divorce petition, that he was satisfied with the arrangements for the care and upbringing of the three children of the marriage were satisfactory. The decree absolute was applied for, and obtained, on the 5th December..

3.On the 24th January the petitioner took out the first of the two summonses now before me, in which she asks for leave to take Theodore permanently to Canada. It appears that having gone to Canada in September 1967 the petitioner there, in Ottawa, met a fellow Chinese whom she had previously known in Hong Kong. She married him on the 3rd January 1968. Her husband, an architect by profession, is permanently resident in Canada and in employment in Ottawa with a firm of architects. The petitioner's parents have bought her as a wedding present a triplex garden house in Ottawa in what is described as "a high class residential district". The petitioner's husband met both Theodore and Isadora when he was in Hong Kong from December 1966 to August 1967. It is said that he is fond of them both, anxious to have them and bring them up as his own children. The petitioner has made exhaustive enquiries regarding education for Theodore and, if her application is granted, she proposes to send him to the Bay View Public School in Ottawa, which school is close to her own house, and thereafter to McGill or Ottawa University. The petitioner contends that the educational, social and economic opportunities in Canada are far greater than those in Hong Kong and that it would be in Theodore's best interests that he should live with his mother and her new found husband in Canada. On the other hand it is contended that, apart from the relatively short periods when Theodore was in his mother's care or custody, the three children have always lived and been brought up together, that they are "100% Chinese", that Hong Kong is their home and that it would be a tragedy if they were to be separated. I entirely discount the suggestion that the petitioner, by her long absence from Hong Kong during her married life, has manifestly shown her disinterest in the children, and the further allegation that she has from time to time, in an excess of temper, physically chastised both these children beyond what was reasonable. In the same way I discount the allegation, later made in regard to Isadora, that whilst in the respondent's care and custody, she was examined by a doctor and found to be suffering from malnutrition. With regard to the affidavits filed, whether of doctors, psychiatrists or psychologists, it is perhaps not entirely without relevance to refer to, and to quote, the observation of Cross, J. in Re. S.⁽¹⁾ in which he said in the course of his judgment "I have no doubt that the psychiatrists who give evidence in wardship cases are persons of the highest integrity, but if they are instructed on behalf of one party their views are bound to be coloured to some extent by that party's views". The same comment may not unfairly be made with regard to the evidence of experts, whether medical or otherwise, and whether given by way of evidence or upon affidavit, where such testimony is given by the deponent on behalf of the party by whom he or she is engaged. In this case I do not think it would be right for me to find fault with either parent and I am fully satisfied that both of them are genuinely and exclusively concerned in putting forward what they consider to be in the best interests and for the welfare of the two children concerning whom these applications are brought.

With that in mind, I am left in no doubt whatsoever in my mind that in so far as Theodore is concerned I ought unhesitatingly to grant this application. It is, I think, of first importance that a child of his age - three years old - should, if reasonably practicable and fairly consistent with other considerations, have the care and attention of a devoted mother. I have no reason whatsoever to believe that the petitioner is other than a devoted mother. The boy will be brought up in an essentially Chinese household where Chinese is the mother tongue of both husband and wife. Mr. Mayne, counsel for the petitioner, has invited me to take judicial knowledge - and I think I can properly do so - of the very large number of applications recently made by Chinese residents in Hong Kong to emigrate to Canada. The opportunities for a boy, such as Theodore, starting off a new life in Canada in an established home, with a stepfather in a professional occupation and on a reasonably well paid salary, must be such as the parents of many a less fortunate child would surely welcome. I have no hesitation in granting this application for him to be permanently moved out of the jurisdiction of this court, namely, to Canada. In so doing I am, of course, assuming that no practical difficulty whatsoever will stand in the way of the petitioner herself, and the boy Theodore, being granted the right of permanent residence in Canada which has already been accorded to her present husband. The granting of this application is therefore, of course, subject to the application for permanent residence in Canada in respect of Theodore being approved by the Canadian Immigration Authorities.

4.The application in so far the six year old girl Isadora is concerned seems to me a very much more difficult and anxious problem. The respondent has at present the custody of Isadora in compliance with the order of the court, made with the consent of both parties, on the 31st July 1967.

Isadora has always lived with her older brother and with the respondent.

The argument put forward on behalf of the petitioner is that at the present time the two children, Alwin and Isadora, are living with the respondent in a flat. The respondent is out at work all day and only sees the children at night and at the weekends. They are looked after by amahs. The respondent's parents occupy the flat immediately below the respondent's flat and undoubtedly take a great interest in the children. Mr. Mayne himself fairly and, I have no doubt, accurately, described them as devoted and, probably, doting grand parents - more doting perhaps towards Alwin, the heir of the family.

5.It is suggested that the respondent's main interest is still in gambling and in consequence he gives even less of what would otherwise be his leisure time to his children. In support of that allegation the affidavit sworn to by a private enquiry agent was produced before me. It is, I think, necessary to comment upon that affidavit. It would appear that while the petitioner was away in England for the first part of 1966, she gave instructions to a private agency to keep observation on the respondent's movements. It is relevant to observe that the petitioner was herself away in England from December 1965 to August 1966. The enquiry agent stated that he was employed by this firm of investigators from February to July 1966. During that period he was instructed from time to time to watch the respondent's movements. He deposes to doing so on twelve specific occasions between the 19th February and the 6th July 1966. Mr. Mayne, for the petitioner, very fairly said that the purpose of the affidavit and its contents was not to besmirch the character or reputation of the respondent but simply to show that at least on those twelve occasions the respondent spent his evenings out at entertainments and his week-ends in Macao, when he could have spent them at home with his children. It is said by Mr. Mayne that there is nothing to show, and no reason to believe, that since 1966 and up to the present time, the respondent has changed his mode of living or devoted more time to his children. I attach no weight whatsoever to this affidavit. I have already made the comment that this relates to a period when the petitioner herself was away in England; the instructions by the petitioner to a firm of private inquiry agents to keep observation on her husband can only have been given by her in the hope or expectation of producing evidence for divorce proceedings on grounds in substitution for, or in addition to, cruelty. They appear to have been unsuccessful for that purpose. The twelve incidents, consisting as they do of evening and week-end entertainment, cover a period of four to five months. One of those incidents, indeed, refers to the respondent taking his son to the cinema at 7.30 p.m. There is nothing to show, and no reason to believe, that the respondent was not at home for the greater part of the four to five months covered by the investigation.

Then it is said - and it is supported by an affidavit deposed to by the petitioner's baby amah - that Alwin is inclined to bully the two younger children, whereas there would appear to be a much closer bond of affection between Isadora and Theodore. Again, I attach no weight to this allegation of bullying. It is not, I imagine, unusual in a family to find that the oldest child, whether boy or girl, exercises a somewhat domineering attitude, which may even amount to bullying, over the younger members of the family. It is not suggested in the affidavit that the bullying was of an excessive or undesirable nature.

Theodore and Isadora were apparently interviewed and examined on one occasion, the 16th February 1968, by a child psychologist. They were escorted by the petitioner who was also interviewed. As a result of that single interview the psychologist has sworn an affidavit deposing, inter alia, that "There was evidence of a close attachment between Theodore and Isadora on the one hand and their natural mother on the other, and there were also indications of a friendly relationship between Theodore and Isadora. I am satisfied that Mrs. Ng (the petitioner) has genuine concern and affection for her children." All the I most fully accept. The deponent further expresses the view that "having regard to the bond which exists between Theodore and Isadora, I think it desirable in the interests of Theodore to have Isadora with him in their mother's care." The psychologist did not, of course, either see or interview the boy Alwin. Finally, she expresses the view, which must surely be self-evident, that "young children, especially girls, are best placed in the care of their mother......."

All these matters I most fully accept. But it must, indeed, be a matter of grave speculation as to whether it would be in the best interests of Isadora to take her away from her homeland, from her father in the custody of whom she has already been placed and with whom, together with her brother Alwin, she has always lived, in order to start a new life in a new country, amongst people of another race, albeit though she would undoubtedly be living with her own mother, a Chinese step father and her younger brother, of whom she is very fond.

6.I have had the advantage of individually seeing and interviewing both parents and collectively and individually seeing and interviewing all three children. At present Alwin attends the St. Paul's Co-Educational School and Isadora goes to a Chinese kindergarten. School hours in both cases are from 9 a.m. to 12.30 p.m. The respondent himself drives them to school in the mornings. I was informed by the respondent that it is his intention to send Isadora to St. Paul's Co-Educational School from next September and that she has already been accepted for admission. Apart from being not unnaturally shy and reticent when I saw her apart from her brothers, she appeared to be a bright and certainly a most attractive little girl. The one factor that weighs very strongly in my mind is that I accept unreservedly the principle that, other things being equal, a little girl of this age ought, if possible, to be with her mother. But even allowing for this most weighty consideration, I have come to the conclusion, after much anxious consideration and, albeit, with some doubt, that it would not be in the best interests of this child to uproot her from her homeland, from the people of her own race, from her father and brother Alwin and her devoted grandparents, to enable her to depart with her mother to a foreign land. In arriving at this conclusion I have not overlooked the fact that although the welfare of the child is the paramount consideration, it is not the sole consideration and that regard should also be had to the wishes of an unimpeachable parent (see Re. O. (Infants)⁽²⁾). But, taking the long view, I am still of the opinion that it would not be in the best interests of Isadora to grant this application, and that it would, indeed, be in her best interests to remain with her father and brother Alwin in this country.

This application must accordingly be dismissed.

8 JUN 1968

Representation:

Mayne, Q.C. & Basto (Helen A.Lo) for Applicant (Petitioner)

Gittins, Q.C. & P. Yu (T. Tai) for Respondent

(1) (1976) ...(illegible) AER 202 at 209.

(2) (1962) 2 AER p. 10.