Cdyf v. Pys

CACV 189/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 189 OF 2010

(ON APPEAL FROM HCMC NO. 7 OF 2010)

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BETWEEN

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Before : Hon Cheung, Hartmann JJA and Saw J

Date of Official Solicitor’s Report : 13 September 2010

Date of Affidavit of Petitioner : 17 September 2010

Date of Affidavit of Petitioner’s solicitor : 17 September 2010

Date of Decision : 12 October 2010

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D E C I S I O N

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Hon Cheung JA (giving decision of the Court) :

1.On the evening of 7 September 2010, this Court was notified by the Official Solicitor by letter that she had been informed by the child that he would be departing Hong Kong for the USA the following day. In view of the hearing of the appeal which was scheduled on the following day regarding, among other things, the permission given to the father to take the child to study in the USA, this Court directed that the child was not to leave Hong Kong until further order. The Court directed the Official Solicitor to inform the father of the direction. The direction was further sent by fax to the office of the father’s solicitor. It was resent again on the morning of 8 September 2010.

2.On the hearing of the appeal, the Court was informed by the father’s solicitor who was in Court on a watching brief that the child had already been departed that morning notwithstanding the direction given by the Court.  The father’s solicitor had previously informed the Court that the father would not attend the appeal.  The Official Solicitor informed the Court that she had notified the father of the direction and he was angry with the news.  The father’s solicitor on the other hand informed the Court that she only received the Court’s direction that morning.

3.The Court upon disposing of the mother’s appeal directed the Official Solicitor, the father and his solicitor to file written statements concerning the departure of the child for the purpose of considering whether the father should be committed for contempt for disobeying the Court’s direction.  They complied with the order.  The Court will now deal with the matter on paper.

The father’s case

4.The father admitted that he was notified by the Official Solicitor of the Court’s direction on 7 September 2010.  He thought that the direction did not have the same effect as an order and he could leave Hong Kong with the child.

5.We do not accept this explanation.  The direction was issued by the Court.  The father clearly must have understood the meaning of the direction otherwise he would not have reacted angrily, as described by the Official Solicitor in Court, or in an agitated manner, as described in the Official Solicitor’s report.  He must have realized that the direction would preclude him from taking the child from leaving Hong Kong.  Notwithstanding the direction he had chosen to disobey it and continued with the travel plan the next day.

6.However the father also apologized and explained why he took the action.  We accept his explanation that he took the action by reason of what he considered to be the best interest of the child who had suffered greatly in the extremely bitter custody and access battle of the parents.  The child needed to settle down before attending the school meetings on 10 September 2010.  The father was concerned with the effect of the disruption of the travel plan on the child.  He was concerned in not being able to secure alternative flights at the start of the school year.  Further, we accept that it was due to the short notice of the Court’s direction and the absence from Hong Kong of the father’s solicitor who had been handling the case for him which caused the father to take such steps.  We therefore do not propose to pursue the matter further.  However, having said that, it must be imparted in the strongest terms on the father and his solicitor that it was only due to the exceptional circumstances that the Court decided to refrain from pursuing contempt proceedings against the father.  Due process must be observed and Court proceedings should never be rendered ineffective by the unilateral steps of the parties.  Ultimately it was for this Court to decide in this appeal whether the child should leave Hong Kong or not. 

The solicitors’ case

7.The father’s solicitor was informed of the intended departure of the child on 7 September 2010.  The father’s solicitor applied on 8 September 2010 for an adjournment of the appeal and the Court on the same day refused the request.  In the refusal the Court had specifically stated that the expedited hearing was due to the intended departure of the child on 10 September 2010 based on the information provided to the Court by the mother. The father’s solicitor must have realised that the Court was under the impression that the child would still be in Hong Kong on the hearing of the appeal on 8 September 2010.

8.However, we accept that the case had been solely handled by a solicitor on behalf of the father who was absent from Hong Kong during the material time and the solicitor who covered for him was not familiar with the case and did not appreciate the necessity or importance of informing the Court of the intended departure of the child.  We accept that she did not receive the Court’s direction on the evening of 7 September 2010.  It is due to the exceptional circumstances that the Court will also not make any further order in relation to the father’s solicitor.  The Court again wishes to remind lawyers that they owe a duty not only to their client but to the Court as well.  The duty requires them to make full and frank disclosure to the Court. 

The Official Solicitor

9.The Court expresses its gratitude to Ms Sherman Cheung of the Official Solicitor for immediately notifying the Court of the child’s intended departure.  In a situation such as this she is duty bound to inform the Court of the news notwithstanding what the child may perceive to be the confidential nature of their conversation.