Erminda Constantino Ong v. Chau Shui Hing

1988 M.P. No. 1895

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

___________

____________

BETWEEN

______________

Coram: The Hon. Mr. Justice Mayo in Chambers.

Date of Hearing: 25th-27th, 31st January; 10th, 13th February, 1989.

Date of Delivery of Judgment: 23rd February, 1989.

_______________

J U D G M E N T

_______________

1. This was a long and very difficult case.  It involves the claims of 2 ladies for the custody of Julie a ward of court.

2. I agree with the submission made by Mr. Waley for the Defendant that it is not necessary for me to deal in great detail with all of the evidence which was before me.  What is important is that I should form conclusions from the evidence which will enable me to decide what is in Julie's best interests for the future.

3. Both the Plaintiff and the Defendant gave evidence before me and were subjected to lengthy cross-examination.  The Defendant also called her elder son Tsui Tsz Ching to give evidence to support her case.  In addition to this Expert Evidence was given by 2 psychologists, Mr. Peter Whyteand Mrs. Hannah Chung.

4. The plaintiff gave evidence concerning her life in the Philippines.  She said that when she married Mr. Ong she had no idea that he had previously been through a marriage ceremony with another woman in China.

5. She described the life she led from her marriage in 1979 until up to the time of this litigation.

6. Julie was born 3 months after her marriage.  She had lived with her family happily until May 1985.  Her family consisted of herself, her husband, a son Orlando from a prior association with another man and Julie.

7. The family lived in humble circumstances.  She was the main breadwinner.  After a series of business ventures she bought 2 minibuses which provided some income for the family.  Mr. Ong had a job in a restaurant but this did not bring in sufficient income to support the family.

8. Julie was brought up with Orlando and other cousins and relatives of a similar age.  A number of photographs were produced which indicate that Julie was a happy child.

9. In early1985 Mr. Ong informed her that his son was going to visit them for a holiday.  This was the 1st intimation the Plaintiff had that her husband had another family.  She was very distressed about this.  Her husband did, however, attempt to reassure her and said that she was the fortunate one because he had chosen to marry her.

10. She said that the son Tsz Ching had stayed with them for about a month.  During this time they had got on very well and Tsz Ching had treated her as her husband's wife.  He had even addressed her as mother.

11. Shortly after this visit her husband had told her that a relative of his was getting married and it had been proposed that Julie should act as a bridesmaid at the ceremony.  As the wedding was some distance away it would necessitate her husband and Julie going away for a few days.

12. This was in May 1985.  Her husband and Julie went as planned.  However, they did not return home at the time expected.  She then became alarmed and made inquiries of her husband's relatives.  She was then horrified to learn that her husband and Julie had left the Philippines for Hong Kong without even leaving and address.

13. Her husband did however, leave behind a letter which stated that he was leaving the Philippines so as to improve his financial circumstances and was taking Julie with him.  After making various inquiries she was eventually able to discover her husband's address in Hong Kong.

14. She immediately decided to do everything possible to travel to Hong Kong so as to be able to get Julie back.

15. This was not a simple matter.  She described in some detail all of the difficulties encountered.  Her most pressing problem was a lack of funds.  She had insufficient cash to visit Hong Kong as a tourist.

16. Besides the question of the cost of a ticket she also needed to demonstrate that she had sufficient moneys to support herself as a tourist.  After giving the matter thought she realised that coming to Hong Kong as a tourist was not the solution to her problems.  It would undoubtedly take time for her to assert her claims for Julie's return and in all probability this could not be achieved in 1 month which was the time which was usually allowed for a tourist's visa in Hong Kong.

17. She then decided that the best course of action for her to adopt was to obtain employment as a maid in Hong Kong.

18. Before she was able to embark upon this plan it was necessary for her to resolve various matters relating to the minibus business.

19. Both the minibuses had been involved in accidents.  She had to negotiate a settlement of the claims which were being made upon her in this connection and also arrange for one of the minibuses to be repaired so that it could be sold.

20. To compound her difficulties when she did, get together sufficient finance to put down a deposit with an Employment Agency she discovered that the agency had become insolvent and she lost her deposit.

21. Eventually with the assistance of her niece who was in Hong Kong, she managed to obtain a contract of employment in Hong Kong.  Even then it was necessary for her to make a payment to her alleged employer as he did not himself wish to employ her.

22. The Plaintiff was ready to go to Hong Kong in October 1986.

23. A few days before she was due to leave she heard from her relatives that her husband had been involved in an industrial accident in Hong Kong and that he had died as result of the injuries he sustained.

24. Almost immediately she then set off for Hong Kong.  Her niece had been able to ascertain where her husband's body was lying in repose and on arrival she went to the funeral parlour.

25. When she was there she had seen Tsz Ching.  He had refused to give her the families address or telephone number but he had been prepared to give her his paging number.  She attended the funeral service the next day.  She also succeeded in seeing Julie.

26. Unfortunately the first reunion was not a happy one.  Julie had rejected her.

27. With the assistance of Tsz Ching some further meetings were arranged.  According to the Plaintiff there were about 6 meetings altogether.

28. One of the difficulties which the Plaintiff encountered was that in the intervening period, while she was making preparations to come to Hong Kong, Julie had completely forgotten all her Tagalog and then was only able to converse in Cantonese which was a language she had no knowledge of.

29. However, by using the services of her niece's Chinese husband as an itnerpreter she was able to communicate with Julie.

30. There was a marked improvement in the relationship.  A number of photographs which were taken during these visits exhibited as evidence.  In as much as it is possible to do so, I definitely obtained the impression from the photographs that the meetings were happy meetings.

31. It became increasingly difficult for the Plaintiff to arrange for meetings with Tsz Ching and Julie.  Tsz Ching made excuses and it became clear that he would not continue to assist the Plaintiff in re-establishing her relationship with Julie.

32. It was at this time that she come to the conclusion that the only way in which she could assert her rights would be if she commenced legal action.

33. The originating summons was taken out in November 1987.  An order was made for her to have access to Julie.

34. Unfortunately this did not work out at all well.  The Defendant said that Julie was not prepared to see her.  Accordingly, she obtained an order for the access to be supervised by the Director of Social Welfare.  Although I am sure that the Social Welfare Officers did their best to make a success of the arrangements they did not work out at all well.

35. Julie manifested great hostility towards the Plaintiff.  On one occasion she even spat at her.  It was obvious that no useful purpose was likely to be achieved by the Plaintiff insisting upon continuing to try to see Julie.

36. The Plaintiff put forward what seemed to me to be sensible and constructive plans for Julie's future.  Her present employer had agreed that if the Plaintiff obtained custody of Julie she could reside with her at her place of employment.  Her employer had a son about Julie's age and they could be looked after together.  After she and Julie became reconciled to each other they could them return to the Philippines.  There was an excellent school near her home and Julie would have the great advantage of being brought up with all her cousins and other relatives.

37. It may be helpful to make some observations on the Plaintiff's evidence.  While she may have exaggerated some of her evidence I have no doubt whatever that she is essentially a truthful and reliable person.  I also have no doubts concerning the genuineness of her motives.  I accept that she did everything reasonably within her power to come to Hong Kong as soon as this was feasible.

38. Also I accept that she was an excellent mother in the Philippines during the first 5 years of Julie's life.

39. She has undoubtedly had a hard life.  I believe her to be a person of courage and character and I have no doubt whatever that it is strongly in Julie's interests that the bond between natural mother and daughter should be re-established as soon as this is possible.

40. It is a tragedy that circumstances have been such as to deny the Plaintiff of the opportunity of being a normal mother to her daughter.

41. I will now turn to the Defendant's case.  The Defendant is a simple lady coming from a village in rural China.

42. She married Mr. Ong in 1964.  Her husband went to Hong Kong to improve himself.  He visited her as often as he could and remitted money to support her an the 2 sons she bore him.

43. In 1977 the whole family moved to Hong Kong.  Shortly after this her husband went to the Philippines so as to earn more money leaving his family behind in Hong Kong.

44. She maintained contact with him 4 or 5 times a year by telephone.  She did not write letters as she is illiterate.

45. At the beginning of 1985, her husband advised her that he was considering returning to Hong Kong.  He suggested that before doing so she should visit him in the Philippines so that he could show her around.

46. She gave conflicting evidence concerning the time of this visit.  This fluctuated between February 1985 and the Ching Ming Festival of that year which would have fallen some time in April.

47. She said that when she visited her husband she had no idea at all that he had a wife or a mistress there.  She had enjoyed the visit and had known that her husband would soon have been returning to Hong Kong.

48. On her arrival back in Hong Kong, she realised that she had become pregnant.  Again the Defendant's evidence in this connection was by no means clear.  At first she claimed that she had simply had a gynecological procedure undertaken on her but insisted that is was not a termination of any pregnancy.  Later in cross-examination she said that an abortion had been performed on her and that this had been done at the insistence of her husband. She had always wanted a daughter and her husband had said that he would bring a girl from the Philippines who she could treat as a daughter.

49. The Defendant said that the main reason for her husband's returning to Hong Kong was that he could not make ends meet in Philippines.  She was invited in cross-examination to reconcile this statement with the fact that it is evident from the schedule of property attached to the Letters of Administration to his estate that he left property worth approximately $180,000.  She said that these moneys were mainly hers and that they had been transferred to her husband after his return to Hong Kong as he would have a better idea how to invest them.

50. Be that as it may, Mr. Ong returned to Hong Kong in May 1985 bringing with him Julie.  The explanation he gave her concerning Julie was that she was the daughter of a friend of his in the Philippines and that he had agreed to look after her for him.  It was his intention that Julie should become a member of their family and be brought up as their daughter.

51. She had accepted her husband's explanation and it had not occurred to her that Julie might be his natural daughter.  She claimed that due to the language barrier between herself and Julie she had never heard Julie say anything which would lead her to believe that this relationship existed.

52. After her arrival Julie was clearly in a state of cultural shock.  For some time she was incontinent.

53. Her husband had then told her that it was necessary for them to go to China so that Julie's rights to remain in the Colony could be regularised.  This was to be done on the basis that the Defendant would make a Declaration to the Chinese authorities to the effect that Julie was her natural daughter.  She agreed to make such a Declaration.

54. She, her husband and Julie all went to China and lived there for some time.  It was possible for her and her husband to commute backwards and forwards between China and Hong Kong but Julie had to remain there.

55. The various matters were resolved by June 1986, and Julie joined the family in Hong Kong at that time.

56. By now she was fluent in Cantonese and it was possible for her to attend a primary school.

57. In October 1986 her husband was involved in an industrial accident.  He died some 10 days later as a result of his injuries.  She had attended him throughout his last illness in hospital.  He had on a number of occasions emphasised to her the importance of looking after Julie until she grew up.  Indeed this had been his last wish.

58. After her husband's death she had had no idea of the Plaintiff's claims to be Julie's mother until shortly before the commencement of these proceedings.

59. She still refused to accept the Plaintiff's claim.  She based this refusal on the Plaintiff's delay in coming forward to claim her daughter back and the fact that the claim had never been made to her husband while he was living.

60. The Defendant gave evidence of her relationship with Julie and claimed that she loved her more than her own 2 sons.  They had been particularly close since her husband's death.

61. Tsz Ching also gave evidence.  He said that when he had visited the Philippines in early 1985, he had done so with friends.  He had seen very little of his father.  He admitted that he had met the Plaintiff but said that he had no idea that she had been cohabiting with his father.  He also denied that he had stayed at his father's residence.

62. He agreed that he had seen the Plaintiff at his father's funeral and had agreed to meet her and her niece and her husband on a number of occasions after the funeral.  He denied having any knowledge that Julie was the Plaintiff's daughter at this time.  He had agreed to various meetings taking place simply on the basis that the Plaintiff claimed to be a friend of his father.

63. I have given a very short summary of the evidence of the Defendant and Tsz Ching.  I regret that I did not regard either of them as being truthful or reliable witnesses.

64. There are a number of unsatisfactory aspects of both their evidence.  I simply do not believe either of them when they said that they had no idea of the existence of the plaintiff's relationship with Mr. Ong. I find the explanation which was given for Mr. Ong bringing Julie to Hong Kong to be truly incredible.  I find it impossible to believe that it would not have been manifestly clear to them that Julie was Mr. Ong's natural daughter.

65. I do not know what Tsz ching's motives were for not telling the truth.  It was my impression that he was decent young man and it may well be the case that he told lies in the mistaken belief that by so doing he would be protecting his mother.

66. All of this though does not affect the fact that I was convinced after observing the Defendant in the witness box for a number of days that she has formed a deep love of Julie and is a very good mother.

67. I accept that she may be a simple soul and may in some respects be somewhat inadequate in being able to look after Julie.

68. In particular I have doubts concerning her ability to provide sufficient discipline to Julie when this may be necessary.

69. I thought that she has basically a rather weak personality and character and I doubt whether she has exercised a great deal of influence over Julie as regards her attitude to the Plaintiff.  Having said this I would add that I do not think she has been of any help in getting Julie to adopt a healthy and constructive towards her natural mother.

70. During the hearing, I had made available to me reports on Julie which were prepared by Mr. Whyte and Mrs. Chung, both of who are psychologists.  Both of them also gave evidence before me.  My task was certainly not made any simpler by the fact that the conclusions they reached concerning Julie and their recommendations as to what should be done in the future were diametrically opposite.

71. I must say at once that I have the greatest respect for both these experts and was much indebted to them for the assistance they gave me.

72. Mr. Whyte saw Julie on two occasions.  The first was in August 1988 and the second during the trial.  He said that he had been amazed by the change in Julie's condition which had occurred in this Period of time.  On the former occasion she presented as a healthy and happy girl who did well on all the tests he gave her.

73. In contrast to this he thought that both Julie and the Defendant appeared to be terrified when he examined Julie in February 1989.  He got the impression that they had been overwhelmed by the events which had overtaken them.

74. When he was asked to comment upon the advice which was given by Mrs. Chung to the effect that the Defendant and Julie should be separated and Julie should be placed in an institution, he expressed the view that it would be barbaric for the court to make such an order.

75. He was firmly of the opinion that it would definitely be in Julie's best interests to remain with the Defendant.

76. He did, however, accept that it would be desirable for her to establish a bond with her natural mother.  He went on to say that having regard to the great hostility which Julie manifested presently to the Plaintiff it would be self-defeating to attempt to coerce Julie into seeing the Plaintiff.  What he recommended was that Julie should received counseling from an expert counseling who would try to persuade Julie to regard her mother in a natural and loving way.  He was under no illusions that such a reconciliation would be achieved in the near future.

77. The expert he recommended was a Miss Lam who gave counseling sessions at the Marriage Guidance Centre.  One advantage of asking Miss Lam to undertake these sessions would be that as he himself works quite closely with Miss Lam be would be able to give advice to her on an ongoing basis.

78. Mrs. Chung only saw Julie at the commencement of the trial.

79. I regret that she formed a very unfavourable impression of the relationship which existed between the Defendant and Julie.  It was her opinion that a lot of the Defendant's despair and depression had rubbed off on Julie and that it was in Julie's best long term interests that she should be separated from the Defendant.

80. She recommended that considerations be given to placing Julie in an institution until some other arrangements could be made.

81. I have come to the conclusion that when Mrs. Chung made her assessment of the situation she did not sufficiently take into account the trauma both Julie and the Defendant were suffering as aconsequence of the litigation and the fear that they may be separated.  Put another way she fails to give credit to the fact that for a period of about 4 years there appears to have been a loving and healthy relationship between the Defendant and Julie.

82. A number of questions were put to Mrs. Chung concerning the logistics which would be involved, if Julie was to be put into an institution.  For example, it would seem to be unwise to assume particularly in the early stages that Julie would co-operate with the plan.  What if she decided to return home on her own volition? I have no doubt that institutionalising Julie not a viable option.

83. I was very impressed by Mr. Whyte as a witness.  He struck me as being a wise and experienced psychologist.  It is strongly my view that his assessment of the situation is correct.  The best course to adopt is to maintain the status quo and to build into the situation, so far as it is feasible, sufficient safeguards or conditions that there is the best possible chance of Julie becoming reconciled with the Plaintiff.

84. I have to admit that one of the factors which has impelled me to this conclusion are the very strongly held views of Julie herself.  While it is obviously quite wrong that any decision should be mainly based upon the wishes of a 9-year old child, it is equally clear that it would be folly to disregard very strongly held convictions.  In this case Julie has on several occasions said and written that if she is forced to return to the Plaintiff she would throw herself in front of a vehicle.

85. I accept that this is in all probability a fairly extreme form of emotional blackmail.  It is, however, necessary to take cognisance of the fact that Julie was subjected to a traumatic upheaval when Mr. Ong uprooted her in 1985 and brought her from the Philippines to analien culture and background and this being the case it is understandable that she should feel strongly on the subject.

86. Having come to this decision I must now decide the form of the conditions to be imposed to achieve what I believe to be the best solution to this very difficult situation.

87. As I have indicated earlier in this judgment, I am concerned about what I perceive to be the rather weak and inadequate personality of the Defendant.  I am also concerned about her motivation in co-operating in bringing about what I regard as being the essential necessity of introducing the Plaintiff back into Julie's life.

88. With this in mind I propose ordering that the present wardship of Julie is to be continued into the indefinite future.  However, for the foreseeable future, the Defendant will be given care and control of Julie.

89. This care and control is to be subject to the supervision of the Director of Social Welfare.

90. I also order that a course of counseling is to be arranged for Julie.  Miss Lam must be requested to act as Julie's counsellor.  The cost of the sessions is to be paid for out of the funds which are presently being held for Julie in respect of the compensation which was paid for her father's death.

91. I hope that it will prove to be possible for Miss Lam to liaise with both the Social Welfare Department and Mr. Whyte so that a flexible and constructive approach can be adopted to the counseling.

92. I make the further suggestion that the Defendant should herself consider receiving counseling.  This is not an order but a suggestion

93. For the reasons I have already given I do not propose ordering that the Plaintiff should at the present time have access rights to Julie.  It is very much in my contemplation that when Julie is ready for it she should have access in the future.  Miss Mok for Julie suggested a 2½ year period for the situation to be reviewed.  With the greatest respect to her I think that this is too long.

94. In spite of all the many difficulties I am inclined to be optimistic so far as the future is concerned.  If the counseling is effectual, as I believe it will be, and Julie comes to understand what an admirable lady her natural mother is, there is a good chance that Julie may wish to see the Plaintiff sooner than we expect.  I say this particularly if Julie realises that there will be no compulsion for her to see her mother and her decision will be one of her own free will.

95. I would also request that the Official Solicitor should continue to represent Julie's interests.

96. So as to ensure the maximum flexibility I would order a general liberty to apply.

97. All parties costs will be taxed in accordance with the Legal Aid Regulations.

98. I think that deals with all outstanding matters.  All that remains is for me to thank all the counsel appearing for the very real assistance and help I received throughout this difficult case.

Representation:

Miss Audrey Eu (Melville Boase & Co.) assigned by D.L.A. for Applicant/Plaintiff.

Mr. Eric Waley (Wong Shum & Co.) assigned by D.L.A. for Respondent/Defendant.

Miss Alice Mok (Helen A. Lo & Co.) assigned by D.L.A. for official solicitor for the minor.