Tang Wai-hon v. Shum Mou-yuen
Read the full judgment text of DCMP 207/1976 on BabelCite. This District Court judgment.
1. For the purpose of the ruling which I am about to make I think that it may be desirable to trace the history of these proceedings.
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DCMP000207/1976 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON CIVIL JURISDTRTION MISCELLANEOUS PROCEEDINGS NO. 207 OF 1976 -----------------
----------------- Coram: Judge Leathlean in Court. Date of Judgment: 15 October, 1977. ----------------- RULING ----------------- 1. For the purpose of the ruling which I am about to make I think that it may be desirable to trace the history of these proceedings. 2. The proceedings are concerned with the question whether all 11-year old boy be committed to the custody of his father or his mother. The proceedings were commenced by way of originating summons issued on November 9th, 1976, supported by an affidavit sworn by the mother four days earlier. In that affidavit she deposed that she met the father while she was working as a dance hostess in 1963, that she gave birth to the child on September 18th, 1966, that she was ill-treated by the father and finally left him and the child on July 20th, 1975, and that the child has been living with her since April 1976. 3. On January 5th, 1977, the father swore an affidavit in reply. In it he denied having ill-treated the mother, accused her of being a compulsive gambler, of inattention to the child and, in effect, of intemperate behaviour, improvidence and fecklessness. He said that he had repeatedly paid her gambling debts. According to him he agreed to let the child stay with his mother for a week in or about May, 1976, but she refused to allow him to return to his father thereafter. 4. The matter first came before me on January 10th, 1977. The mother was then represented by Mr. T.Y. Lee of Messrs. T.Y. Lee & Co., Solicitors, and the father was represented by Mr. V. Ng of Messrs. Hastings & Co., Solicitors. To the best of my recollection I was invited by both sides to decide the case upon the affidavits to which I have just referred. I indicated that I was loth to accept that invitation, and that in my view viva voce evidence should be given. Somewhat to my surprise both sides thereupon announced that even if viva voce evidence was given there would be no cross-examination by either side. The mother was then called. She reaffirmed that the contents of her affidavit were true. Mr. Ng reiterated that he had no cross-examination. I then examined her, She stated that the reason for her asking for custody of the child was that the child had told her that he was afraid of his father and wanted to stay with her. According to her the child's education had been adversely affected. She alleged that the father did not pay much attention to the child, adding that the father only returned home twice a week. She agreed that while the child had been with the father he had been in the de facto care of his paternal grandmother. Unhappy as I was at the refusal of either side to cross-examine the other, of course, I was unable to compel cross-examination, and it was not for me to cross-examine. As Blair-Kerr, J., said in Cathay Textile Corporation and Eastern Zone Industrial Co., Ltd. ((1962) H.K.L.R. 139 at 145):
5. The father was then called. He reaffirmed that the contents of his affidavit were true. Mr. Lee declined to cross-examine. I then examined him. He agreed that while the child had been with him his mother had had de facto care of him. He alleged that the mother had refused to return the child to him as a means of getting money from him. He denied that the child was afraid of him, and invited me to ask the child to speak for himself as to this. He agreed that he had not maintained the child while he had been with his mother, but said that that was because the mother would have used any money which he might have given her for the child's maintenance to gamble. 6. At the request of both sides the matter was then adjourned pending investigation and report by the Family Services Division of the Social Welfare Department. 7. To the best of my recollection I indicated that if it was the wish of both sides I would see the child alone, but neither side was prepared to invite me to adopt such a course, which, therefore, I did not adopt. 8. The matter came on before me again on March 7th. A report by an assistant social welfare officer dated March 4th had by then been received. So far as I can recall the mother was absent, but whether she was or not Mr. Lee stated that he had been instructed that the mother wished the father to have custody of the child. 9. At this juncture I wish to make it perfectly clear that the social worker's report, while it had been sought by both sides, was not admitted in evidence. In the circumstances I could not and did not have any regard to its contents in arriving at the decision which I made on March 7th. I also wish to make it perfectly clear that I would not have made the decision which I did on that date merely because Mr. Lee told me that he was then instructed that the mother wished the father to have custody of the child: I would not have given custody of the child to the father had I considered that such a course was not in the child's best interests. 10. As each side declined to cross-examine the other, of course, I was forced to make what I could of the affidavits. That position was not one into which I welcomed being forced. It was not a position into which I think I should have been forced. Indeed, it might not be going too far to say that it was at least ill-considered of the parties' solicitors to force me into that position, although, as Blair-Kerr, J., in the Cathay case (supra), also at page 145, said:
However, forced into it I was, and was thus left with the affidavits, the absence of any other evidence-in-chief, the complete absence of any cross-examination, and the evidence which the parties gave in answer to the court. The father had, of course, replied to the mother's affidavit of November 5th, 1976, in his affidavit of January 5th, 1977, which included the allegations against the mother to which I have already referred. The mother had not then filed an affidavit in reply to that affidavit. Having seen and heard the parties in the witness box, albeit not for long, it was nevertheless long enough for me to form the impression that the father was an unusually level-headed man with a strong sense of responsibility who was genuinely and deeply concerned about the welfare of his son, and that he was honest and truthful. The mother did not make a favourable impression upon me. I came to the conclusion that the probability was that the truth of matters was as set out in the father's affidavit, and that the interests of the child would be best served were he to be committed to his father's custody. 11. On May 19th the mother issued summonses for variation and review of my order of March 7th. The application for review was eventually withdrawn (it was out of time anyway). The application for variation was adjourned at the request of both sides pending further investigation and report by the Social Welfare Department. This application proceeded upon the basis that Mr. Lee had acted without or contrary to the mother's instructions on March 7th when he informed the court that she had instructed him that she wished the father to have custody of the child. A new solicitor had mean-while been assigned to her by the Legal Aid Department. 12. The matter next came before me on September 23rd, when the mother was represented by Mr. Lester Kwok of counsel instructed by Messrs. Johnson, Stokes & Master, solicitors, assigned by the Director of Legal Aid, and the father was represented by Mr. Allman-Brown of counsel on the instructions of Messrs. Hastings & Co., solicitors, similarly assigned. A further report by the same social worker had by then been furnished. It was not, however, put in evidence, and once again I must make it perfectly clear that I have had no recourse to its contents for the purposes of this ruling. Moreover, a further affidavit sworn by the mother on September 16th had been filed. I do not propose to recite its contents here. Suffice to say that the greater part of it consists of replies to the contents of the father's affidavit of January 5th. The remainder, viz., paragraphs 4, 5 and 6, are concerned with variations in the child's weight, deterioration in his performance at school, and his emotional state since my order of March 7th. 13. Mr. Allman-Brown has submitted that, as regards the contents of the mother's affidavit of September 16th, or at least of paragraphs 2 and 3 thereof I have no jurisdiction to entertain an application for variation of my order of March 7th. In support of his submission he has referred me to Rayden's Law and Practice in Divorce and Family Matters, eleventh (1971) edition, Volume I, page 918, paragraph 11(viii), and the decisions in the English cases of R. v. Sunderland Justices, Ex parte Hodgkinson ((1945) K.B. 502), Robinson v. Williams ((1965) 1 Q.B. 89) and In re F. (W.) (An Infant)(1969) 2 Ch.D. 269), the burthen of all of which may, I think, be succinctly stated to be that a court should not entertain an application for variation unless it is supported by fresh evidence of a serious kind, and that the circumstance that such fresh evidence would have been available at the original hearing is no bar to such an application. But is that the same thing as saying that fresh evidence may be called in this case notwithstanding that it would have been, or was, available at the hearing on January 10th, when the mother's solicitor decided neither to examine the mother in chief nor to cross-examine the father upon the contents of the latter's affidavit of January 5th? None of the authorities to which I have been referred is of any assistance on this point. Mr. Allman-Brown has submitted that I must assume that the decision by the mother's solicitor not to avail himself of the opportunities of examining the mother in chief and cross-examining the father upon the contents of the latter's affidavit of January 5th at the hearing five days later was made in accordance with her instructions, or, at least with her approval. Pausing here, it is to be noted that at no time, not even on September 23rd, has the mother really sought to complain of Mr. Lee's conduct of her case at the hearing on January 10th. It is true that in her affidavit of September 16th she says that her erstwhile solicitors did not advise her to swear an affidavit in reply to the father's affidavit of January 5th, and that she had always wanted to make the "comments" which she eventually did make in her affidavit of September 16th, but that, in my view, is some way from saying that Mr. Lee acted without, or contrary to, her instructions in adopting the course which he did adopt at the hearing on January 10th. Moreover, she did not impress me as a woman who was in the least backward in coming forward, yet she made not the slightest attempt to advert to any of the matters contained in her affidavit of September 16th while she was in the witness box on January 10th, which one might - and I put it not one whit higher than that - perhaps have expected her to had she really been so anxious to be heard as to them as she would now have it that she was. Really, it seems to me, her one and only complaint is that Mr. Lee acted without, or contrary to, her instructions on May 7th when he told the court that she had instructed him that, after all, she wished the child to go to his father. Of course, in the absence of any complaint by the mother of misconduct by Mr. Lee at the hearing on January 10th I cannot find that there was any misconduct on his part at that hearing. Indeed, I must assume that there was no misconduct on his part at that hearing. In my judgment Mr. Allman-Brown's contention that I must assume that Mr. Lee's decision not to avail himself of the opportunities of examining the mother in chief and cross-examining the father upon the contents of the latter's affidavit of January 5th at the hearing on January 10th was properly made is well founded. 14. Well, now, as to Mr. Allman-Brown's submission that I have no jurisdiction to entertain this application for review of my order of March 7th inasmuch as the contents of the mother's affidavit of September 16th do not disclose fresh evidence of a serious kind, as I say, it is clear upon the authorities to which I have been referred that it is no bar to this application that the evidence which the mother now wishes to give would have been available at the hearing of January 10th (as, so far as it would relate to the matters contained in the second and third paragraphs of her affidavit of September 16th, it undoubtedly would have been). But, it seems to me, this is not so much a matter of whether the evidence which she now wishes to give is fresh evidence of a serious kind - although that undoubtedly does enter into it - as a matter of permitting the mother to rebut the evidence contained in the father's affidavit of January 5th more than eight months after the hearing on January 10th at which her then solicitor decided - properly, as I have decided that I must assume - neither to examine her in chief nor to cross-examine the father upon the contents of the latter's affidavit of January 5th. And again, as I say, none of the authorities to which I have been referred is of any assistance upon this aspect of the matter. Upon reflection I think that Mr. Kwok was nearer the mark than, I admit, I thought he was at the time, when he stressed, quite correctly, of course, that the paramount consideration in cases of this kind is the welfare of the child. In any other kind of case I apprehend that a party seeking to be heard on matters upon which he could and would have been heard in the first place but upon which he had decided in consultation with his legal advisers not to be so heard would get short shrift. This kind of case, though, is a special kind of case, Indeed, as I understand, one of the exceptions to the general rule that a party in contempt may not be heard to make any application to the court is an application for the custody of an infant, and, in circumstances such as those which obtain here I conceive the law to be that I have a discretion whether to allow the mother to lead the evidence which she now wishes to lead, notwithstanding that she could have led it at the hearing on January 10th but, as I have decided that I must assume, elected, in consultation with her legal adviser, not to lead on that occasion, and that I must exercise that discretion bearing in mind that the paramount consideration in this case is the best interests of the child. At the same time I cannot ignore the fact that there would be no end to litigation if parties who lose the day were to be perpetually at liberty to be heard on matters upon which they could and would have been heard in the first place but upon which they decide in consultation with their legal advisers not to be so heard. If it was the case that the mother was not heard on the matters upon which she now wishes to be heard as a result of misconduct on the part of her legal advisers then I dare say that I might have exercised the discretion which I conceive that I have in the matter in her favour. But, I repeat, that is not the case here, for, as I say, even now there is no real complaint by the mother of Mr. Lee's conduct at the hearing on January 10th, I cannot assume that there was any misconduct on his part, and, indeed, must assume that there was none. Unless it is obvious that there is a real danger that the child's interests may be prejudiced by the exercise of the discretion which I conceive that I have against her, I cannot but think that it would be altogether wrong in the circumstances to allow the mother to be heard now on the matters set out in paragraphs 2 and 3 of her affidavit of September 16th. As Blair-Kerr, J., said in the Cathay case (supra), again at page 145:
In all the circumstances of this case I do not perceive any such danger. Accordingly, I exercise the discretion which I conceive that I have against her in respect of those matters. I emphasize that I have not for an instant lost sight of the interests of the child in so doing. 15. The contents of paragraphs 4, 5 and 6 of the mother's affidavit of September 16th, which concern developments since my order of March 7th, and which, therefore, could not have been the subject of examination at the hearing on January 10th, are, however, or could be, a horse of a different hue. Despite Mr. Allman-Brown's submission to the contrary I think that evidence as to these matters at least might emerge as serious new evidence. It is impossible to say more without knowing beforehand exactly what evidence will be called or actually hearing such evidence as the mother now wishes to call as to them. As to those matters, therefore, I will hear evidence in support of the mother's application for variation of my order of March 7th. 16. The matter is adjourned to November 3rd at or before 10 o'clock for the purpose of hearing such evidence. 17. Dated this fifteenth day of October, 1977.
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