Slwe and Others v. Ctt and Another

HCMP 1237/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1237 OF 2010

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BETWEEN

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Before: Hon Lam J in Chambers (Not open to Public)

Date of Hearing: 19 July 2010

Date of Judgment: 19 July 2010

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J U D G M E N T

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1.I will give a brief oral judgment on the matter and, if necessary the oral judgment can be transcribed and shown to the Family Court to facilitate the understanding of the background to the intended application to set aside the order of December last year in FCMP228 of 2009 and the application of the Applicants to join in to those proceedings for further directions.

2.This matter comes to this court by way of an application under section 8 of the Guardianship of Minors Ordinance seeking to remove the Respondents as guardians appointed in respect of a minor.  The Respondents were appointed as guardians for that minor after her parents died in a traffic accident.  The Applicants come from the paternal side of the parents whereas the Respondents come from the maternal side of the parents. 

3.The background to the case is this.  The minor was born on 10 May 2007 and she is now 3 years old.  Sadly the parents died in a traffic accident on 23 August 2009.  The parents were married in 1999 and the child was born in wedlock.  After the tragedy the maternal side as well as the paternal side of the family seek to have guardianship of the minor.  I am told by Mr Cheung this morning that there were discussions between the two sides of the family and there was agreement for the Respondents to become the guardian.  On the other hand, this is disputed by the Applicants.  According to the Applicants there was no agreement and they have been trying to get the guardianship of the child as well.

4.In any event it is not disputed that the fact that the Applicants were seeking to have guardianship were made known to the Respondents through correspondence between solicitors.  Those correspondence, as far as they were shown to me, took place in October and November 2009. According to what I was told by Mr Cheung this morning, those correspondence took place subsequent to the alleged discussion between the two sides of the family in which agreement was given for the Respondents to become the guardian.  In other words, by the time of November 2009, it should have been clear to everybody, including the solicitor acting for the Respondents, that the question of guardianship was subject of a dispute.  And I note that in the correspondence between the solicitors it was never put on behalf of the Respondents that the Applicants had previously consented to guardianship being taken over by the Respondents.

5.Instead of having the matter resolved between the parties, the Respondents took out the application for guardianship in the Family Court under FCMP228 of 2009.  In breach of the requirement of the Rules, that is, RDC Order 90, rule 1(2), the matter was proceeded on an ex-parte basis without joining the Applicants as parties to the Family Court proceedings.  As a result the Family Court was not told about the fact that the question of guardianship was the subject matter of dispute.  Instead the Family Court was misled by a statement in the affirmation filed on behalf of the Respondents in support of their application for guardianship.

6.At paragraph 18 of a joint affirmation of the Respondents filed in the Family Court proceedings it was said that there was a family meeting when all the family members agreed that the Respondents should handle the application for guardianship of the child.  I say this statement is misleading because, as I have already explained, by the time when the application was made to the Family Court it was clear to the Respondents, as well as their solicitor, that there was dispute about the question of guardianship and the matter should not have been proceeded on an ex-parte basis.

7.Solicitor acting for the Respondents applied to the Family Court without disclosing to the Family Court that the Applicants were contesting the question of guardianship.  When the matter came before the Family Court, as far as I can see from the court file in the Family Court proceedings, there was only a short hearing and the matter was dealt with summarily without even calling for any social welfare report.  In other words the Family Court granted the order on the basis that the question of guardianship was not a contentious matter and the guardianship order was made on 17 December 2009. 

8.In those circumstances, in my judgment, the Respondents as well as the solicitors for the Respondents, act in breach of their duty to the court when they proceeded on an ex-parte basis.  An litigant coming to court on an ex‑parte application carries with him or her the obligation to give full and frank disclosure to the court.  In matters relating to children, solicitors should be vigilant in observing such duty.  The court regards as a serious matter when a party obtains an order on an ex-parte basis without giving full and frank disclosure on matters that may affect the court’s decision with regard to children.

9.In my judgment, had the Applicants been made aware of the proceedings in the Family Court, they could have applied to join in as parties and no doubt the Family Court would have to hear them before the order for guardianship can be properly made. 

10.The Applicants found out about the ex-parte order of the Family Court in April this year when solicitor for the Respondent sent a copy of that order to the solicitor for the Applicants.  What the Applicants could have done, in such circumstances, was to apply to the Family Court to set aside that order on the basis of material irregularity and to have the matter of guardianship dealt with afresh in the context of Family Court proceedings.  Instead the Applicants commenced the present proceedings in the High Court pursuant to section 8 of the Guardianship of Minors Ordinance. 

11.While section 8 of the Guardianship of Minors Ordinance does give this court the power to remove a guardian appointed pursuant to the Guardianship of Minors Ordinance, in my judgment section 8 does not put this court into the position of a Court of Appeal in relation to a guardianship order made by the Family Court. 

12.The objective of section 8 is to deal with situations arising after the appointment of the guardian which demonstrate or render the original appointment no longer suitable due to events happening after the appointment.  For example, due to change of circumstances, the guardian becomes no longer fit and suitable to act as guardian for the minor in question. 

13.We are not dealing with that sort of situation. As a matter of proper interpretation of section 8, in a situation like the present one, I do not think the parties should resort to section 8 of the Guardianship of Minors Ordinance to seek an order for removal from this court. Rather the proper application is to be made to the Family Court in the context of FCMP228 of 2009 to have the original order set aside on the ground of material irregularity. 

14.At today’s hearing, Mr Cheung, appearing on behalf of the Respondents, having initially tried to persuade this court, without success, that there was no material irregularity in the grant of the order of 17 December 2009, he later on informed the court that the Respondents can give an undertaking to this court that they would agree with the Applicants to have the order of 17 December 2009 set aside by consent on the ground of material irregularity.

15.And upon the original order of 17 December 2009 being set aside the parties can go back to the Family Court to seek further directions for the disposal of the guardianship matters as if they were dealt with afresh.  The parties have given undertakings to this court that they will make their application to the Family Court within three days and the Applicants will seek interim relief in terms of access, etc.  It is hoped that the Family Court can deal with the matter, as in any other children matter, on an expeditious basis.

16.In the light of all these, this court no longer need to make any order on the present originating summons except on the question of costs.  It would be apparent from what I have said so far that the solicitor for the Respondents have to bear the blame for what has happened. The Applicants ask for their costs to be borne by the Respondents.  In my view, although they have chosen the wrong procedure in coming to this court, today’s hearing does achieve some redress to the question in terms of having the Respondents’ agreement to have the order of 17 December 2009 set aside by consent. 

17.Looking at the matter in terms of substance, rather than form, I am of the view that to that extent the Applicants can be regarded as successful although not in terms of what they sought in the originating summons.  As I have mentioned, solicitors as officers of the court are expected to observe their duty conscientiously and diligently when they proceed on ex-parte basis and, in particular, in relation to children matters. I was told by Mr Cheung that, in the present instance, solicitor for the Respondents very properly agree to bear some of the costs of the Applicants in the matter.

18.As far as quantum is concerned, a Statement of Costs was prepared by the Applicants’ solicitors.  Having heard the comments of the parties, and also taking into account that some of the matters canvassed, or some of the works done, can be used for the purpose of the Family Court proceedings, (in this respect I see no reason why the affidavit already filed in the High Court proceedings cannot be used again for the purpose of the Family Court proceedings) and having regard to the fact that some of the items, in particular, the hourly rate of the solicitors concerned are subject to comment by counsel for the Respondents, I think a fair order for costs in such circumstances is that the Respondents’ solicitor shall pay the Applicants the cost of today’s hearing which I will fix on a gross sum basis at $35,000. Other than that I will make no order as to costs and the costs is to be paid forthwith.

19.By way of postscript, I intend to publish this judgment with the names of the parties edited.  If any party has any objection, he or she can write to this court within 5 days.

Mr Felix Ng, instructed by Messrs. S W Tai & Co., for the Applicants

Mr Harrison Cheung, instructed by Messrs. George Chan & Co., for the  Respondents