Re Leung Chun on
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IN THE SUPREME COURT OF HONG KONG HIGH COURT (Adoption No. 2 of 1988) _________________
_________________ Coram: Hon. Jones J. in Chambers Dates of hearing : 12th & 13th January 1989 Date of delivery of judgment: 13th January 1989 _________________ JUDGMENT _________________ 1. On the 16th June 1987, Miss Lam Tak-ying, (the applicant), gave birth to an illegimate child named Tsz Lun, now known as Leung Chun-on, the father of whom is Mr Chow Kim-ching. The applicant gave her consent for the child to be adopted on the 11th August 1987 that led to adoption proceedings being commenced in April 1988. However, by a summons issued on the 30th August 1988, as amended on the 22nd November 1988, the applicant seeks to revoke her consent under section 5(5D) of the Adoption Ordinance, Cap. 290 and for an order that she be granted custody of th3 child. The applicant cannot, of course, invoke the provisions of section 5(5) as the period of three months therein limited has expired. 2. Section 5(5D) reads:-
3. By the amendment that was made to the summons, the applicant contends that her consent to the adoption was given by mistake. 4. All the witnesses who have filed affidavits or affirmations gave evidence before me and were cross-examines. 5. The applicant who is aged 20, formed an association with the father, Mr Chow, when they were fellow students at the Moral Training English College. After the applicant had received confirmation from her doctor that she was four of five months’ pregnant, it appears that she and Mr Chow quarrelled, but later Mr Chow made a proposal of marriage to her which was rejected. In March 1987, the applicant sought advice from the Christian Family Service Centre at Kwun Tong where she saw Miss Wan, who she claimed advised her to give the child away. She signed some forms prepared by the Social Welfare Department, giving her consent, but says that she was assured they had no legal effect. It is clear from her evidence that the applicant’s mother supported her decision to have the child adopted. 6. When she signed the form of consent on the 11th August 1987, the applicant says that she signed it reluctantly and under the mistaken impression that she had no option having signed three previous documents. 7. As the applicant is at work during the day, she says that she has made arrangements, on the assumption that she succeeds upon this application, for Mr Chow’s mother Fung Suk-yin, to look after the child during the day. Although the applicant and Mr Chow have agreed to bring up the child jointly, they have no plans to get married. 8. In her latest affirmation which was made on the 11th January, the applicant claims that she had a difficult pregnancy and that it was really due to health reasons that resulted in her giving the consent for the adoption. Nevertheless, it is clear from the evidence that at one time she intended to have an abortion. 9. Form about August 1987 until about March 1988, the applicant did not see Mr Chow, but they started seeing each other again at about that them when they discussed the possibility of claiming the child back. 10. The applicant’s evidence as to a meeting that she had with Mrs Chan of the Social Welfare Department on the 16th July 1987 revealed that she did not want to claim the child, but that Mr Chow did. However, a week later, Mr Chow resiled from this decision. 11. A psychiatrist, Dr. Lau, gave evidence on behalf of the applicant. He saw her for just over two hours on the 9th January and made a report in which he set out the history of the matter based upon what he was told by the applicant His evidence, however, was of no assistance. 12. Mr Chow testified that he is prepared to support the child if the application succeeds and will make a contribution of $1,000 per month for the child’s maintenance. In cross-examination, he invited the court to believe that as a result of the advice he had received from the Social Welfare Department, that the child could live in an institution for a year and that arrangements could then be made to withdraw the child at any time. He agreed that he had made arrangements with the applicant for the child to be aborted, but that later he wanted to look after the child, and then changed his mind. 13. Mr Chow’s mother gave evidence that she and her family would like to look after the child particularly, as it is her first grandson. 14. The evidence given by the Social Welfare Department Officers reveals that the applicant had made a firm decision to give up the child when she was interviewed by them which was also confirmed during certain telephone conversations although at the time, understandably, she was under some emotional distress. 15. The applicant’s relationship with Mr Chow was unsatisfactory and no arrangements had been made for them to get married. Indeed, even now, there are no prospects of marriage. 16. Having heard the evidence of the Social Welfare Department Officers, I am in no doubt that after proper advice, in which the various options that were open had been explained, there could be no doubt that the applicant had made up her mind to surrender the child for adoption, and that she understood the legal consequences of the documents that she signed. Again, I accept Mrs Chan’s evidence that Mr Chow, after some vacillation, had intimated that he no longer wished to claim the child. 17. There are apparently no previous cases where the court has had to decide an application under section 5(5D). The words merely state that an application can be made for the consent to be revoked. Miss van der Eb, who appeared for the applicant, compared the Hong Kong legislation with the English Adoption Act 1976 and to section 6 of that Act which provides that in reaching any decision, the court’s first consideration is to safeguard and promote the welfare of the child. The reference to the welfare of the child is not included in the Hong Kong section. 18. In my judgment, the test to apply is whether the application is reasonable in all the circumstance, which is a question of fact based upon the evidence adduced. As a result, I have proceeded to consider this application without directing my mind to the welfare of the child as such, but to the genuineness of the applicant or her sincerity as was submitted by Miss van der Eb. Nevertheless, all the circumstances from the time of the pregnancy until today must be relevant to my decision. These show that up to the time of the birth, the applicant had no intention to keep the child, which attitude was maintained up to the time she signed the form of consent on the 11th August 1987. No steps were taken within the statutory period of three months to revoke the consent, nor was the matter even considered until about March 1988, some nine months after the child was born. The present summons was then issued at the end of August 1988. 19. Although the applicant contended that she had always wanted to keep the child, this was untrue having regard to her earlier decision to have an abortion. Further, I reject her evidence that she was at any time mistaken as to the legal effect of the documents that she signed that led to the adoption proceedings. I accept that she received proper advice and every assistance from the Social Welfare Department in this matter and I reject her contention that she had made a mistake which was the subject matter of the amendment to the summons. 20. Having considered her testimony and observed her demeanour, I am not satisfied that the applicant was genuine or sincere in seeking to revoke her consent. The truth behind this case lies with the family of Mr Chow and in particular, his mother, who in my judgment, have influenced the applicant to make this application with his support 21. I did not find either the applicant or Mr Chow to be impressive witnesses, nor do I accept that their relationship is either a stable one or compatible. As I have said, no evidence has been given that they have any intention to get married. The attitude of the applicant has changed from abortion to giving up the child and now to a desire to resume her parental rights. While she is entitled to change her mind, I am unable to accept that she has done so honestly or with any genuine intention to to so. Accordingly, I have no hesitation is dismissing the summons.
Miss Colette van der Eb (Pang Kung & Co.) assigned for Applicant Mr Sam Man Kit Lo (C.C. Lee & co.) for Adopters Miss V.A. Hartstein (A.G.’s Chambers) for Director of Social Welfare |