Ng Yee Chan, Miriam v. Kwok Ting Chau

HCMP003040/1984

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

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Coram: Deputy Judge Barnett

Dates of hearing: 21st & 25th June, 1985

Date of delivery of Judgment: 1st July, 1985

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JUDGMENT

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1. These are sad and distressing proceedings by which the plaintiff has had her son Micah made a ward of Court and now seeks care and control.

2. The plaintiff and the defendant began to cohabit in 1972 when the defendant already had two daughters by his existing marriage. That marriage was dissolved in March 1975 and the parties married on 15th August of the same year. There are three children of the marriage : Micah, born on 9th June 1973; Dorcas, a daughter, who was born on 29th July 1976; and another daughter who was born in 1975 but given away because of the parties' financial difficulties. Financial difficulties, in fact, beset the parties throughout their marriage. That is wholly understandable because both parties are blind. By 1981 the plaintiff could not tolerate the defendant's irresponsible attitude towards family budgeting. She applied for legal aid in order to commence divorce proceedings. Although that application was withdrawn because of the defendant's promise to change, the plaintiff subsequently commenced proceedings in 1983 and the marriage was dissolved in January 1984. The decree was made absolute on 25th February 1984.

3. Upon the making of the decree nisi, the defendant agreed that the plaintiff should have custody of Micah. Accordingly, it was ordered that Micah and Dorcas should remain in the custody of the plaintiff until further order.

4. In the circumstances, I queried whether it was appropriate for these proceedings to have been commenced in the High Court and whether application should not have been made to the District Court by the plaintiff to enforce its order or by the defendant for variation of that order. I have no doubt that the better course would be to proceed in the District Court. However, having regard to the circumstances of the parties and to the welfare of Micah, it seemed to me desirable that the dispute should be resolved without further delay.

5. The defendant has limited vision in his right eye. He can get around with the aid of a cane and without other assistance. His disability is, however, very severe and obtaining employment is extremely difficult. I have every sympathy for the defendant as I have for any disabled or handicapped person. Nonetheless, having heard the defendant give evidence, I am satisfied that he is a shiftless character. Throughout his association with the plaintiff the defendant has been unable to deal properly with money. As a consequence, the parties were pursued by creditors and officials of the Housing Department seeking arrears of rent. If the defendant was not in employment at any time, however, the family were provided with adequate if not generous public assistance. In 1974 the defendant's problems resulted in at least one criminal conviction, the circumstances of which are not entirely clear but relate to the hire purchase of certain goods. The defendant frankly admitted the conviction and the difficulties which he had, but stressed that his last conviction was in 1975.

6. The parties moved their home several times during their association. According to the plaintiff, this was because of the defendant's bad handling of the family budget and the consequent pursuit by creditors. The defendant, whilst agreeing with what the plaintiff told me, also laid the blame at the door of an interfering European lady who, on the plaintiff's behalf, meddled in the family affairs. The defendant said that he moved home in order to try and escape from this lady's attentions. This explanation does not, I fear, really withstand scrutiny. The gravamen of the defendant's complaint against this Lady, whom he named as Sister Maria, is that after he had lost a job at Castle Peak Hospital because of his eye-sight, she not only failed to intervene on his behalf to get his job back but unjustifiably complained to the Social Welfare Department that a Miss Ho who was in charge of his case had failed to find him any employment. No other particulars of this lady's interference were given. The defendant attributed the particular incident to misunderstanding. I am afraid I found his story less than convincing.

7. The defendant's assertion is that he would like employment and is still looking for a job. However, in 1983 he obtained employment as a casual worker with the Medical and Health Department. He was dismissed in December 1983 because he arrived for work late and left early. Whilst the defendant is to be admired for his frank admission of this fact, it says little for his anxiety to do his best for his family or his sincerity about obtaining employment.

8. Whilst working for the Medical and Health Department the defendant obtained a loan of some $24,000 to assist with debts which he owed. In cross-examination, the defendant said that the main reason for these debts was because the public assistance which he received was inadequate. He conceded, however, that some of the debts were incurred because he gambled on horse racing. The bulk of this loan is still outstanding.

9. The defendant was commendably frank in many respects. He was, however, very glib being always ready with an answer to explain away the various difficulties in which he had found himself over the years. I found him a wholly unconvincing and unsatisfactory witness.

10. Shortly after the divorce proceedings, the parties were still living together in their public housing unit in Tuen Mun. The defendant said that he agreed to the plaintiff having formal custody of Micah only so that she might have a Court order which she could use to obtain a separate public housing unit. In fact, he said, it was agreed between them that he would have custody of Micah. It was also agreed that Micah would go to live with the defendant's parents in Kwun Tong so that his family could assist Micah in improving his school work. With the assistance of his family, the defendant found a primary school place in Kwun Tong which Micah took up in February 1984. Since then Micah's school work has improved although, as was pointed out on behalf of the plaintiff, the son took up a P.4 place whereas he had been in P.5 in his previous school in Tuen Mun. In such circumstances it would be surprising if his performance at school had not improved.

11. The plaintiff, of course, says that there was no such agreement between the parties and that when they discussed the divorce proceedings it was simply the defendant's suggestion that he should have practical custody of Micah. The defendant, however, sent Micah to his parents' home without her consent. When she was able to obtain a public housing unit in Ap Lei Chau, to which she moved in July 1984, she was unable to take Micah with her. Consequently, she commenced these proceedings.

12. The plaintiff gave evidence quietly and, in my view, with great sincerity. She hoped that Micah could come to live with her so that she could devote her whole time and attention to him and, as she put it, set him on the right path. She is concerned that his school work is not good, that he is becoming uncontrollable and that the environment in which he now lives in Kwun Tong is unsatisfactory. She would like, if Micah is willing, to introduce him to the Christian faith. If Micah lives with her he will also be able to develop his relationship with his sister Dorcas.

13. I have no doubt that the plaintiff will, as she says, devote herself to Micah but I fear that she is somewhat unrealistic if she expects to be able to control a normal, healthy and slightly unruly twelve year old boy. Subject to that reservation, I accept the plaintiff's evidence particularly where it is in conflict with that of the defendant.

14. In February this year the defendant himself moved to Kwun Tong to a public housing unit near his parents and Micah's school. At the end of April, Micah moved to live with the defendant. The defendant says, and I accept that this must be true, that Micah moved in of his own accord. At all events, Micah now lives with his father, with his younger stepsister and with an unidentified female who now helps the defendant.

15. I spoke to Micah in my private room in the presence of the parties' solicitors. I asked some questions of a general nature from which it emerged that no-one is pressing him to do his homework. It is worth observing that one of the reasons for the move to a different school in Kwun Tong was, the defendant said, that his family members would see that Micah improved his school work. I then asked Micah with whom he would prefer to live. Micah said instantly, with his father. He had earlier this year told the Social Work Officer who prepared the usual background report that he would prefer to stay with his mother.

16. Finally, Micah said spontaneously "It's really a headache. Mother wants me, father wants me." This statement and the way in which he said it, I think, portrayed his true feelings. He is tired of the whole business and wants it to be over and done with. Although he had earlier said he would prefer to be with his father, my clear impression is that he does not really mind as long as the matter is finally cleared up.

17. How then is the matter to be resolved? All things being equal the guiding principle is, I apprehend, that a boy of this age should be with his father. Micah is already with his father and has an established place in school. To remove him from his father's custody now will be to inflict yet another change of home environment and another change of school. Micah would then be under the care of an undoubtedly loving and devoted mother but a mother who, because of her physical disability, will inevitably have problems in controlling an adolescent child.  Farther, although I have not been addressed upon the matter, I think I cannot overlook the possibility of disturbance to a boy upon being given into the control of a blind parent and suffering the restricted home life that must necessarily go with this situation.

18. If Micah remains with his father there will, on the face of it, be no further changes of home and environment. He will have the male company of his father, a father whom it will not be necessary for him to escort when he leaves the home. I discount, however, the possibility that Micah receives any real assistance with his school work from his father or from his father's family. I have found the defendant to be an unreliable witness and I do not accept his evidence on this point. In addition, Micah himself said that no-one is pressing him to do his work. Micah will also be subject to the control and supervision, if those words are appropriate, of a man whom I have found to be a shiftless character, who is deeply in debt and is a gambler. It also says little for the defendant's effective control of his family that his elder daughter by his first marriage is now in Tai Tam Gap Correctional Institution. When the daughter is released in a year or two she may well return to live with her father and be a disrupting influence on Micah.

19. Although the defendant has made much of his concern for Micah's schooling, it is interesting to note that the plaintiff has all Micah's school reports. This was admitted by the defendant who was at pains to emphasize that she has these documents. This suggests to me that it is the plaintiff who is more seriously concerned about Micah's performance at school.

20. On behalf of the plaintiff two matters were urged upon me as showing the defendant's lack of good faith in this application. First there is the fact that Micah moved to live with the defendant in April, that is, during the course of these proceedings. It was suggested that this was done at the defendant's instigation in order to strengthen his claim. I do not think that there is anything in this.

21. Secondly, there was the episode of the bicycle. Micah had for some months wanted a bicycle. The defendant was apparently willing to purchase it for him but said that Micah should obtain the plaintiff's consent first. The plaintiff was apparently reluctant to give this consent but finally agreed upon condition that Micah signed a paper to be prepared by the plaintiff which in effect would absolve the plaintiff from liability in the case of any accident. This paper has not yet been prepared and signed. Nonetheless, the defendant recently purchased the bicycle.  It was suggested that he did so in order to influence Micaha. I find it curious that the defendant should need the plaintiff's consent to purchase a bicycle for a twelve year old boy. The defendant said that this and other issues concerning Micah he would discuss with the plaintiff upon the telephone or during the course of visits to her to see Dorcas. Whilst I find the circumstances of the purchase of the bicycle mildly suspicious, I attach no great weight to them.

22. I have not overlooked the fact that Micah and his sister often quarrel when he visits the plaintiff. The plaintiff admitted that it is sometimes necessary for her to hit them when they do not respond to her orders to behave. I do not think the quarrels are anything more than the natural order of things between brother and sister. Nor do I think that the plaintiff's actions suggest any particular intemperance on her part; they amount to no more, in my view, than reasonable chastisement.

23. In all the circumstances, it will, in my judgment, be in the best interests of Micah if the plaintiff has the care and control of him. Micah will then have a stable and affectionate home and the guidance of a sincere mother. The responsibilties which he will have to shoulder might well help to mature his character and instil in him a sense of discipline. These are all positive factors which I am persuaded will not be available in the home where Micah is now living. Indeed, the defendant's repeated theme was to leave things to Micah to decide upon. The defendant seems to me to be wholly lacking in discipline and direction for Micah.

24. Accordingly, I order that the plaintiff should have care and control of Micah. Micah is to move to live with the plaintiff when the current school term is over. I will ask the Director of Social Welfare to assist the plaintiff in finding a suitable school place for Micah in the Ap Lei Chau area.

25. Hitherto, there has been no difficulty over access. I do not anticipate difficulty now so I simply direct that the defendant has reasonable access. I will give more specific directions if they become necessary.

Representation:

Miss R. Ng of Chan, Ng & Leung for Plaintiff.

Mr. Mitchell of Haldane Midgley & Co. for Defendant.