Re Y & Y (Infants)
Read the full judgment text of HCMP 143/1971 on BabelCite. This High Court CFI judgment was delivered on 31 July 1971.
1. These proceedings are brought under the Infants Custody Ordinance and the Supreme Court Ordinance and they were conducted in chambers. I thought it right to adjourn this judgment into open Court.
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HCMP000143/1971 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION MISCELLANEOUS PROCEEDINGS NO. 143 OF 1971 ----------------- In Re Y & Y (Infants) ----------------- Coram: Briggs J. in Court Date of Judgment: 31 July 1971 ----------------- JUDGMENT ----------------- 1. These proceedings are brought under the Infants Custody Ordinance and the Supreme Court Ordinance and they were conducted in chambers. I thought it right to adjourn this judgment into open Court. 2. The elder child is a boy who is now 10 1/2 years old being born on February 6 1961. The younger child is a girl who is now 7 3/4 being born in October 1963. The boy was born in Hong Kong. The girl was born in the Union of Burma. 3. The Plaintiff is the father and the Defendant is the mother of the two children. The children are at present living with their mother and the father seeks an order for their custody, care and control. They are wards of Court by virtue of these proceedings. 4. Both the Plaintiff and the Defendant filed affirmations in support of their case. And both gave evidence in person. In addition other witnesses were called and the whole of the background history of the relationship of the Plaintiff and Defendant was extensively examined. 5. Before I consider that evidence I will deal with several rulings that I made with respect to certain applications made to the Court during the hearing. 6. The Plaintiff applied to call the elder of the two children, the boy, to give evidence in person. The application was based on two grounds (1) that the boy had emphatically expressed his desire to live with his father and not with his mother and (2) that one of the reasons the Plaintiff was seeking an order for custody was that he was of the opinion that the Defendant had mal-treated the children, the boy at least. 7. I refused this application. In my view the boy is too young and his evidence would be of no value. 8. However, I followed the usual practice of interviewing the two children in order to question them as to their wishes and to inquire as to the allegations of ill treatment. The boy said he wished to be with his father, the girl said she wished to be with her mother. 9. The question immediately arises how much weight is to be attached to the wishes expressed by young children. It will be convenient to deal with this matter here and now. 10. In volume 21 of the 3rd edition of Halsbury's Laws of England the law is stated thus: that the court will take the wishes of an infant into consideration if the infant is of an age to exercise a choice. Various cases are quoted to the effect that that the power of choice rests on age alone and not on intelligence, and for males, the age appears to be 14: for females, 16. They are all old cases and I do not think that the law is as definite as they would seem to indicate. 11. In Re S, Infants(1) the wishes of an infant who was a boy of 13 1/2 were taken into consideration. The question was whether the ward should be sent to a school in America to continue his education or whether he should remain at school in England. The ward expressed his desire to continue at school in England. It was a case where it was clear that no "pressure had been up upon the ward by either of his parents to assist him" to come to such a decision. In such circumstances Cross J. held that it was right to take the ward's wishes into consideration, though he was careful to state that there might be cases where the wishes of a boy of 13 1/2 would only count for very little. 12. In D v. D(2) the Court of appeal took into consideration the wishes of a girl of 11 1/2. The question at issue was whether the infant should go from England to Japan for the summer holidays and the infant did not wish to do so as her father had married again and she did not want to be brought up with two mothers as it were. The report is meagre. However the Court held that although the Court could not allow a child of 11 1/2 to decide entirely for herself, her very positive views could not be ignored and it would be wrong to employ coercion. 13. The modern practice seems to be that each case depends upon the particular circumstances. But that the wishes of the infants where they are genuine and not attributable to pressure are a material factor to be taken into consideration when deciding a question of custody but that the age of the infant is also very important: the more grown up the child the more attention will be paid to his wishes. 14. I now come to another point. A bundle of correspondence passing between the then Solicitor for the Plaintiff and the then Solicitor for the Defendant was put in evidence by the Defendant. The correspondence is marked "without prejudice". The various letters deal with negotiations between the parties leading up to a deed of separation which was executed on August 6 1970; and covers the period of March 20th 1970 till August 7th 1970. At first the bundle was put in for identification only, and the Plaintiff was cross-examined upon the contents. The Defendant was questioned as to the contents in cross-examination. But the bundle did not become an exhibit of the Court until it was formally put in by Mr. Chan, a solicitor's clerk, who was called immediately after the Defendant had given her evidence. 15. Mr. Mills-Owens asked me to hold that this correspondence is not admissible as evidence. As I have read the correspondence and as it has been the subject of considerable comment by counsel on both sides it may seem that this is a rather artificial objection. However it is a settled practice that in non-jury cases a document can always be looked at to decide if it is admissible or not. 16. Mr. Zimmern drew my attention to the case of Tomlin v. Standard Telephones And Cables Ltd.(3) That was a running down action and negotiations were conducted with a view to a settlement. The correspondence was marked "without prejudice". Speaking generally there are usually two aspects of such negotiations the question of liability and the question of damages. One of the letters stated that the Plaintiff would agree to settle his case on a 50:50 basis as to liability leaving the matter of the question of damages to be disposed of in further negotiations. It was held that the letter was admissible since an agreement had been reached in the correspondence and that there was no objection that that agreement was contained in letter marked without prejudice. The head note also states that it was not possible to determine without looking into the correspondence whether there was a binding agreement between the parties or not. 17. In the present case there is no doubt that there was a binding separation agreement executed by the parties on August 6th 1970. It is unnecessary to look to the correspondence preceding its execution for proof of that fact. That fact is not in dispute. 18. But can the Court look at the negotiations leading up to the making of the agreement? Mr. Mills-Owens suggested that it would not be right to wade through the proposals and counter proposals made in a "without prejudice" correspondence when an agreement is finally reached. The agreement itself is admissible but the previous negotiations are still marked without prejudice and are protected. Of course a witness can be asked when giving evidence questions as to the course the negotiations took but the letters containing such negotiations are privileged if marked "without prejudice". 19. In giving judgment in Tomlin v. Standard Telephones And Cables Ltd.(3) Dancwerts L.J. relied on the following portion of the judgment of Lindly L.J. in Walker v. Wilsber(3A) where he said
20. This means that though contained in letters marked "without prejudice" the document evidencing the agreement may be admitted in evidence. It is not privileged. But that is not to say that previous negotiations so marked which were not successful cease to be privileged. They are terms proposed which were not accepted and therefore privileged. 21. In CHAN Shu-gar v. CHAN Bo-hing(4) Huggins J. expressed dissatisfaction with the dictum of Lindly L.J. which I have quoted above. In that case as in Tomlin's case the point in issue was can a without prejudice correspondence be looked at in order to discover whether the parties to that correspondence came to an agreement. In Tomlin's case it was held that this was possible. And in my view that is the law: documents marked without prejudice are privileged but may be looked at in order to discover if there is an agreement between the parties. If there is, the privilege vanishes so far as the documents which form the agreement are concerned. Another way of putting it is that a person who makes a binding agreement with another in a without prejudice correspondence cannot plead that that agreement cannot be relied upon by the other party to it on the grounds of privilege. The present facts are quite different. There is an agreement separate from the correspondence. The correspondence is marked 'without prejudice' and is privileged. There has been no waiver of that privilege. In my view the correspondence is privileged and must be disregarded. 22. I now come to another point. One of the issues concerns a marriage celebrated in Burma. It is agreed that there was a valid marriage but the type of ceremony is in dispute. For the Plaintiff it is said that it was celebrated in a Magistrate's Court, and that the parties to the marriage were given copies of a marriage certificate. The Defendant says that it was a marriage celebrated according to Chinese custom 23. In order to prove his case the Plaintiff sought to put in evidence an affidavit sworn before "the third additional Magistrate, THARRAWADAY", I was told that the document was supplied by the American Consul in Rangoon. It was sought to put in this document under section 38 B of the Evidence Ordinance. The provisions of the Evidence (Hearsay) Rules had not been complied with but the Court was asked to exercise its discretion under rule 11(1) and so admit the document. 24. I declined to do this. The correct method of proving a certificate of marriage celebrated in a foreign country is the production of a copy of the certificate with an affirmation certifying to the fact that it is a certificate valid in accordance with the relevant law. No reason was given why this was not done. But there was another reason why I declined to exercise the discretion of the Court. The document itself is not a certificate of marriage, it does not describe the ceremony. It merely states that the maker of the affidavit was a witness to an affidavit regarding a marriage ceremony. I am not sure what that means. But I do not think that it is evidence of any weight so as to go to the proof of the type of marriage that was in fact performed. 25. A further issue between the parties is whether or not the Defendant was the concubine of the Plaintiff. The Plaintiff filed an affirmation by one Mr. Hu as to certain Chinese law and custom of the Ching Dynasty. Mr. Zimmern for the Defendant asked the Court to strike the affirmation out under Order 41 rule 6. It may well be that the matters contained in the affirmation are irrelevant to the issues before me: but they are not scandalous and the Court will only strike out an affirmation which is irrelevant if it is scandalous as well. In any event the Court is not bound to strike out such matters and I decided not to do so. 26. Portions of the affirmations of the Plaintiff and of the Defendant however were struck out at the request of the opposite party as being contrary to 0.41 r.5, i.e. they contained facts which the deponent was not able of his or her own knowledge to prove. 27. I will now come to the facts of the case itself. 28. The Plaintiff was born in Yunnan Province in 1912. He left his native place for Northern Burma when he was 14. And he lived in Burma until 1969. He did not become a naturalised British subject, nor did he become a citizen of the Union of Burma. He was a jade broker and used to travel to Hong Kong from time to time for the purposes of his business. 29. He told the Court that he first came to Hong Kong in 1950 and he travelled on a Chinese Nationalist passport issued by the Chinese Embassy in Burma. There were several other visits up to 1963. 30. In January 1965 he was detained by the Burmese Government on political grounds. He remained in detention until 1969 when he travelled through Hong Kong to Macau. 31. At the time of the inception of this case the Plaintiff was living in Hong Kong without authority. He was an illegal immigrant. His certificate of identity giving him permission to live in Macau had expired, so he could not return there. And Burma, where he had lived for the whole of his working life - over 50 years - was closed to him. He had not been in Yunnan since he was 14. And he might be described as a stateless or homeless person. 32. Fortunately a few days ago the Plaintiff, who had, as long ago as May 1970. applied for Hong Kong Identity papers, was informed by the Authorities that he could remain in Hong Kong. The formalities are not yet complete but I was told that they soon will be, and at any rate he is no longer to be regarded as an illegal immigrant. This is important because a Court might well hold that it would not be in the interests of children to be placed in the care and custody of a stateless person 33. However we have not to consider that point further. The Plaintiff first met the Defendant in 1951 when he came to Hong Kong. He took her as his mistress. On each occasion that he came here, they lived together. 34. In 1956 the Defendant accompanied the Plaintiff to Burma for the first time and she went to that country on several other occasions the last being in 1963 - 64. 35. The elder child, the boy was born in Hong Kong in 1961. And he accompanied his mother to Burma on the last three occasions that she went there. The younger child, the girl, was born in Burma in October 1963 and remained there for some months after her birth. The exact number of months is in dispute. 36. As I have said in 1969 the Burmese authorities released the Plaintiff and he came to Macau. From there he has come to Hong Kong. The Plaintiff's Kit Fat wife and his family followed. His Kit Fat wife, came with her children one of whom was married to a Dr. Lee. Dr. Lee's family including his son by the Plaintiff's daughter also came and are now in Hong Kong. 37. The Plaintiff and Defendant continued to meet each other but their relationship turned sour. Negotiations were entered into culminating in a deed of separation to which I shall refer in more detail later. It is dated August 6th 1970. This deals with a settlement of property and awards custody of the two children to the Defendant 38. Before this Dr. Lee and his wife signed a divorce agreement and Dr. Lee married the Defendant. 39. That briefly is the story. One of the reasons that the Plaintiff claims custody of the children is that he says they are not merely his illegitimate children, they are the children of the Defendant who is his concubine. The Defendant denies that she is or has even been his concubine. 40. The difficulties in this case have been greatly en ...(illegible) ced by the quality of the witnesses called on both sides. Neither the Plaintiff nor the Defendant were frank with the Court. And there was a considerable body of evidence given by the Plaintiff's Kit Fat wife and daughter which I cannot accept. 41. The Plaintiff said that the defendant became his concubine in 1956 when a ceremony was held at Pakam in Northern Burma where he was living. As the Plaintiff is setting up the relationship of concubinage it is for him to prove it. There is no evidence in writing but that is not to be expected. The Plaintiff described the ceremony. 42. He said that the Defendant was accepted by and knelt to his Kit Fat wife and kowtowed to her, serving her with tea. There was a dinner and the Defendant served wine to the guests. 43. The Kit Fat wife also gave evidence to the same effect. But she went further. She said she came to Hong Kong with her husband in 1956 and was introduced to the Defendant. She agreed with her husband to invite the Defendant to Burma and she came there in 1956. She also described the ceremony in terms similar to those used by the Plaintiff. Later this witness corrected the date and said that she had come here in 1955. 44. The Plaintiff never mentioned that his Kit Fat wife came to Hong Kong and made this invitation, neither in his affirmation nor in evidence. If it is true, I find this difficult to understand. 45. The Kit Fat wife was not a reliable witness. She is not a sophisticated woman and I think she is very much under the Plaintiff's thumb. I also had a strong impression that her evidence was rehearsed. In her examination-in-chief on one occasion she was asked a question about the marriage of her daughter to Dr. Lee. There was a long pause. Then without further questioning she said "we came to Hong Kong and each time the Defendant was there at the airport to meet us". 46. Her examination then proceeded with questions concerning Dr. Lee's marriage. It seemed to me that she was telling a rehearsed story which had, as it were, been interrupted by the question concerning Dr. Lee's marriage. 47. The Plaintiff called other witnesses who said they were present at the ceremony. They were not impressive. What they were all agreed upon is that the Defendant was considered to be the second wife of the Plaintiff. And she herself has given evidence to this effect. She said she had never disguised the fact that her children were the children of the Plaintiff and she is generally known as "Mrs. Yeung". A Mrs. Lee was called who deposed that she was introduced to the Defendant by the Plaintiff as his second wife as early as 1953. This I accept. It is by no means uncommon for a man to introduce his mistress as his wife or second wife to his respectable acquaintances. 48. The other witnesses called to prove the ceremony were unreliable. It must be remembered that if it took place at all it took place fifteen years ago. When asked questions to test their memories as to other and perhaps more important events they made a poor showing. 49. The Defendant denied that she was the Plaintiff's concubine. She was not truthful when she told the Court that she did not see the Kit Fat wife in Hong Kong until 1970. A photograph was shown to her which completely gave that statement the lie. She met her first in Hong Kong in 1955. 50. Despite this I accept the evidence of the Defendant that she was not the concubine of the Plaintiff. She was his mistress. When the Plaintiff came here they lived together. She went to Burma not only to see the Plaintiff. She was interested in the jade trade also. 51. There was no necessity for her to become the concubine of the Plaintiff in 1956. She was already his established as his Hong Kong mistress. Nor do I believe that the Defendant, a Shanghainese woman of parts would put herself in the second place in the Plaintiff's Burmese household: i.e. under the Kit Fat wife. There is no evidence that at any time the Defendant accepted the inferior position of concubine or acted like a concubine. There has been no suggestion that the children of the Defendant are in custom or in law to be considered as the children of the Kit Fat wife as would be the case if the Defendant were a concubine. But there is a more important point still. The Deed of Separation dated August 6 1970 does not mention that the Defendant was the concubine of the Plaintiff. The word "concubine" does not occur. 52. It refers to cohabitation and recites that the parties have not been married. It mentions the "former relation as man and woman in cohabitation". 53. Now had the relationship been that of concubinage this deed would surely have mentioned it for it would have been that relationship which was being dissolved, not the relationship of a man and his mistress. Though the deed is in the English language it was drafted in a Chinese Solicitor's office and we know from the Defendant's evidence in the witness box that negotiations as to its terms commenced as early as March 1970. It seems to me that it is quite clear that there was no such relationship and I so find as a fact. 54. But does it matter? It was suggested to the Court that the law applicable was that of the ceremony: the lex loci contractus. The Plaintiff case is that the relationship was contracted in Burma. 55. I have no evidence before me whether in 1956 after the Union of Burma had been formed, the law of Burma recognised the Chinese relationship of concubinage. I have been shown cases which say that that was so in the nineteen thirties when Burma was part of the British Empire, but those cases are irrelevant. We are here dealing with the Union of Burma and the year 1956. 56. It was also suggested that the personal law of the Plaintiff was relevant. The personal law of the Plaintiff supposing him not to have been domiciled in Burma in 1956 would have been that of the People's Republic of China. It was suggested that it was the law in China at the time that the Plaintiff left Yunnan for Burma that should be applied, but I do not think that that is correct. It would be the law in China in 1956 that would be material if at all. It is well known that concubinage is not recognised under the present regime in China where marriages are monogamous. 57. Mr. Mills-Owens made the interesting suggestion that the Court could and should infer the relationship of concubinage because the Defendant and Plaintiff have lived together as man and wife notoriously and for a very long time and because the Defendant has been known as Mrs. Yeung. Indeed she has used that title herself on many occasions. For example she told the Court that when making applications for places for the children in schools she calls herself 'Mrs. Yeung'. 58. Mr. Mills-Owens developed his argument on this point very neatly and quoted several cases where the English Courts have inferred a marriage from long cohabitation. But surely the point is that those cases are dealing with marriage not with concubinage. There is no presumption that because a married man keeps a mistress in another town where she passes for his wife that that other woman is his wife. Namely a bigamous wife. Further I do not think that the law will presume a relationship unless that relationship is known to the law which should govern that relationship. As I have said, I don't know whether Burmese law recognises the institution of concubinage. 59. Further though the cohabitation has taken place in Hong Kong I know of no authority which can allow me to presume the instance of such a relationship. Indeed I think it would be quite wrong to do so. 60. Mr. Mills-Owens pointed out to me the result of my finding that the relationship of concubinage did not exist. It would be said in effect be the same as a declaration of the bastardy of the children. I refuse to be put off by this. The children are bastards. ...(illegible) ever adoption is not unknown in Hong Kong both by custom and under Cap. 290. 61. However my finding does have a bearing on the evidence in this case. These proceedings are brought under the Infant Custody Ordinance which in my view only applies to children of a legal union whether that union be marriage or concubinage. It is true that Blair-Kerr J. in TSANG Siu-kee v. LEE Hung(5) held that this was not so and that the Ordinance applies to any infant, legitimate or illegitimate. But I do not, with respect think that that case was correctly decided [See In re C.T. (An Infant) 1957 Ch. 48]. I am fortified in this view by the doubts expressed as to the correctness of that decision in WONG Kam-ying v. MAN Chi-tai(6). 62. However this is all rather academic. As was said by Jessel, M.R. in Reg. v. Nash(7) which was decided as long age as 1883 when referring to the rights of the parents of an illegitimate child -
63. However it is settled law that the "rights of the father of an illegitimate child are not the equivalent of the rights of a legitimate father in custody proceedings." [See Re O (An Infant) (1964 All E.R. 786)]. In Re C (An Infant)(8) Harman L.J. said this at page 311 when referring to the rights of a father of an illegitimat child:
64. The second reason why the Plaintiff says he should have custody of the children is that he says they have been subjected to ill treatment by the Defendant. 65. The Plaintiff in my view has exaggerated this matter out of all proportion. What he is objecting to is a normal exercise of parental control by the Defendant over her children who have been living with her. 66. The Defendant admits she is strict with her children. When I interviewed the children in Chambers they agreed that that it was when they were disobedient that they were chastised. Both the girl and the boy told me this. The boy is a wilful child as will be ...(illegible) en from the excellent report on his behaviour in the Po Leung Kuk which is included in the evidence of this case. And doubtless, like most if not all boys of his age he requires chastisement on occasion. 67. Like many other boys of his age, he does not like to be disciplined. He was annoyed with his mother because she sent him to boarding school and he resented that. I am quite satisfied that there is no evidence of any sort of ill treatment in this case. Specifically, the boy told me that it was his mother and not her husband who chastised him. 68. Mr. Mills-Owens asked me to consider the wishes of the boy. The boy told his father and he has told others including myself that he would like to live with his father. When I asked him why, he said it was because he liked him but what he wanted to do was to go to a Boarding School called St. Stephens which his mother (not his father) had told him was a very fine school. 69. The Plaintiff said that when he saw the boy at the Salesian School he did not look very well. I think that he must have been in an emotional state. No one else noticed anything wrong with the boy. And at present he is as lively and healthy a boy of his age as one could wish to see. 70. In my view for the reasons and on the authority of the decisions previously quoted in this judgment the boy's wishes should be noted in this case: should not be ignored. But owing to the age and character of the child they should carry but little weight. The girl said she wanted to stay with her mother. She appeared frightened of any prospect of leaving her and going to her father. She is even younger than the boy and though her wishes may be noted I think that they carry minimal weight. 71. The last aspect of the Plaintiff's case with which I wish to deal is this. In the witness box he said that he considered that the Defendant in marrying Dr. Lee must be considered to have contracted an incestuous marriage by ancient Chinese law. And he went so far in his evidence as to say that the children considered that she, the Defendant, has committed incest and does not deserve to be their mother. 72. I do not understand this. There is no evidence of it. The Defendant and Dr. Lee have not committed incest. Not even if the two articles referred to in Mr. Hu's affirmation are accepted as being applicable in Hong Kong today, and there is no evidence at all of the children's views of the matter. 73. The daughter of the Plaintiff, Yeung Shuet Yi was married to Dr. Lee in Burma in March 1968. According to Dr. Lee the marriage was according to Chinese custom and I accept this there being no reliable evidence to the contrary. Dr. Lee says and the Plaintiff agrees with this that latterly the marriage was not a success in Burma. A son was born, and eventually the parties and Dr. Lee's parents all came to Hong Kong. Dr. Lee came with the Plaintiff in August 1969. Yeung Shuet Yi arrived in the following January with her son. Dr. Lee and his wife lived with the Defendant. The Lees' son was placed in a nursery. 74. Both in Burma and after his arrival in Hong Kong Dr. Lee was suffering from very poor health. He said he was unable to satisfy his wife sexually and he thought she was tired of the marriage. 75. On February 10 1970 she tried to commit suicide but was saved by the Defendant. Dr. Lee said the reason she acted in this way was to blackmail him into granting her a divorce. She made further threats the next day so he went to a solicitor's office and a divorce agreement was drawn up and he signed it. He told her it was with the solicitors and said he begged her not to sign it in the presence of a Mrs. Kwan. This was on February 13th. 76. The Defendant meanwhile crossed to Macau to tell the news of the attempted suicide to the Plaintiff. This was before the negotiations concerning the separation deed were commenced. 77. On the 13th February Yeung Shuet Yi signed the divorce agreement in the presence of Mrs. Kwan taking a copy back with her from the office. 78. Yeung Shuet Yi says that she tried to commit suicide because she sensed that her husband's attitude towards her had changed. She denied any talk of a divorce. She agreed that she went to the solicitor's office and signed a paper but she was tricked into thinking that it was an application to procure an identification card. It was the Defendant who tricked her and set the whole plot in motion on February 13, when she, the Defendant, introduced her to Mrs. Kwan who accompanied her at the Defendant's request to the solicitor's office. 79. I heard the evidence of Dr. Lee and of Yeung Shuet Yi and where they conflict I must prefer that of the former to the latter. 80. The travel document of the Defendant clearly shows that she was not in Hong Kong on February 13th. She was in Macau conferring with the Plaintiff. Yeung Shuet Yi's evidence that the Defendant was in Hong Kong and arranged for her to sign the divorce agreement is quite untrue. 81. Further I do not believe the story of Yeung Shuet Yi as to the signing of the divorce agreement. She is not as ill educated as she tried to make out and can read Chinese quite well. She could not possibly have been mistaken as to what she was signing. She admitted she saw her husband's signature on the document with the characters for "Parties to the Agreement: Male Party" immediately placed against it. And she herself signed opposite the phrase "Female Party". These characters obviously bear no relationship to an application for an Identity Card. 82. The document was witnessed by a solicitor and his clerk and was executed in their presence. I do not for one moment believe that they would lend themselves to such an easily detectable fraud on the witness if her story is true. 83. I reject the evidence of this witness, she was very biassed and was obviously activated by spite towards the Defendant, which is of course understandable in the circumstances. 84. Soon after the divorce agreement was signed Dr. Lee moved out of the premises. Then the strangest thing in this strange case occurred. The date of the divorce agreement was February 13 1970. Four days later the Defendant proposed marriage to Dr. Lee. Three days after that notice of marriage was given and the two were married in a registry office on March 9 1970. No one can quarrel with Mr. Mills-Owens' remark that it was an unseemly and hasty marriage. 85. But in my view this is a perfectly legal marriage. The divorce agreement being in respect of a Chinese customary marriage will be recognised in Hong Kong. I do not think that Dr. Lee and the Defendant are bigamously married as was alleged by the Plaintiff. 86. The marriage was kept secret. Indeed the Defendant told the Court that he did not know of it until after the deed of separation was signed in August 6. In that deed the Defendant is described as a spinster. This was obviously done to conceal the marriage of the Defendant from the Plaintiff. 87. It is largely a marriage of convenience and the parties thereto admitted as such. Dr. Lee has applied to emigrate to the United States and he wishes to take the Defendant and her children with him as his family. She is not unprovided for though because of his health he himself is not now working. 88. I have dealt with the case for the Plaintiff. The case for the Defendant can easily be disposed of. 89. She has had custody of the children all along. It is true that they have visited their father but never for very long since they have been able to take an interest in the world. 90. I have already said that the Defendant did not make a good witness and indeed was caught out in telling untruths. 91. There are two matters which in fairness to the Plaintiff should be referred to. The Defendant said that though the Plaintiff provided for her when she was his mistress she was not entrusted with any sums of money or jade by him on his behalf. 92. She also said that the very large sums which she handed over to him under the terms of the deed of separation represented her own moneys and had come from successful business ventures. 93. The Plaintiff mentioned sums of money and jade amounting to 2 million and on one occasion to 4 million dollars which he said he had entrusted to her. 94. I think that the truth is between these two accounts. I am certain that some at least of the money in the Defendant's possession originated from the Plaintiff. But that is not to say that she was not also a successful business woman. She was engaged in the wig trade in which in the early sixties, considerable fortunes were made in Hong Kong. 95. I do not think that the money handed to the Plaintiff under the Separation Deed was an ex gratia payment. The sum was arrived at by a process of hard bargaining and negotiation. And represented an attempt by the parties to sort out the claims of both parties to a very considerable sum. This sum was represented by cash, shares in the names of both parties, a car and a flat. 96. The Plaintiff's evidence as to the circumstances in which he signed the deed was almost incoherent. He blamed everyone including his present solicitor for not having explained the details of the deed to him. I disregard this part of his evidence entirely. He was represented by a solicitor in the negotiations throughout and seems to have come off very well. 97. The deed contains a clause giving custody of the children to the Defendant in unequivocal terms. This is not an estopped binding on the Plaintiff. It is an indication however of his attitude at the time. It that time he was unaware of the Defendant's marriage to Dr. Lee. She is described in the deed as a spinster. What has made the Plaintiff change is, I think, that his ex mistress secretly married his ex son in law and kept the matter concealed from him. And that possibly relying on the wording of the deed, which contains no provisions allowing him access to the children, the Defendant has kept knowledge of the whereabouts of the children from him. He does not strike me as being a forgiving man. 98. It was at one time suggested that the Plaintiff was trying to attract the boy's affections by bribes, and attempting to influence him against his mother. There is no evidence of this. Since the deed of separation the Plaintiff has only seem the boy rarely and the boy himself told me that though his father had brought presents to the school for him the Schoolmasters had not handed them to him. 99. In proceedings for the custody of infant children the welfare of the infant is the first and paramount consideration. 100. In this case there is nothing to choose between the father and mother so far as their standard of living and accommodation is concerned. 101. The father is 60: the mother 39. It is urged that it is good for a boy of 10 to have the control of a father. But the mother in this case has married again and there is no evidence that there is any antagonism between her husband and the boy. 102. The children have been with the mother all along. She has looked after them well and they are being properly educated. There is clear evidence of the devotion of the mother to the children. And the children are young. The children have never lived with their father except for a very short time. They have not seen his present accommodation. And finally there is an excellent prospect that they will emigrate to ...(illegible) 103. Taking into consideration the whole of the evidence in this case, the conduct of the parties and their circumstances, I have reached the conclusion that custody of the children should not be given to the father. In reaching this conclusion I have considered the wishes of the children for what that is worth and taken into consideration the fact that I believe the children to be illegitimate. 104. Mr. Mills-Owens proposed an alternative, that the children should be split: the son going to the Plaintiff the daughter to the Defendant. 105. There can be no doubt that the little girl will be better off with her mother. The father hardly mentioned her during his evidence which so far as it dealt with the children at all was almost solely concerned with his son. 106. However I understand that the Defendant is opposed to any such suggestion. In my view it is only for very cogent reasons that the Court will make an order which will result in the separation of two young children. And such an order will only be made of course when the result will be for the benefit of the children. It would be wrong to make such an order out of sympathy with or at the request of one of the parents. 107. I do not think that an order separating the children would be desirable in the present case. I can see no cogent reason why such an order should be made. The children have always been together and it is in my view, better for their welfare that this relationship should continue. The application of the Plaintiff is therefore dismissed. 108. No order for costs.
Representation: Jackson-Lipkin & Mills-Owens (Ho & Wong) for Plaintiff Zimmern (W.I. Cheung & Co.) for Defendant Judgment read in Court (1) 1967 1 All E.R. 202 (2) 1958 3 C.L. 479 (3) 1969 3 All E.R. 201 (3A) 1889 23 Q.B.D. 335 at 337 (4) 1969 H.K.L.R. 606 (5) 1960 H.K.L.R. 298 (6) 1967 H.K.L.R. 201 (7) 10 Q.B.D. 454 (8) 1970 1 All E.R. 309 |