CHAN YU WAI MING then YU WAI MING v. CHAN CHEAK WING, RAYMOND

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CIVIL APPEAL NO. 123 OF 1985

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JUDGMENT

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Power, J. :

1. The petitioner on the 27th of February 1985 presented a petition seeking a dissolution of her marriage to Raymond Chan, the respondent, on the ground that the respondent had behaved in such a way that the petitioner could not reasonably be expected to live with him.

2. The parties were married on the 8th of January of 1983 and it was necessary therefore to seek leave to present a petition for dissolution before the expiration of the period of three years from the date of marriage. Leave was granted by His Honor Judge O' Dea on the 22nd of January 1985.

3. The petition revealed that the parties cohabited after the marriage at 444 Nathan Road, Kowloon. It stated that the petitioner was a bank clerk, who was at the time of the petition residing at Flat A1, 14th floor, Wah Fung Garden, Kwun Tong, Kowloon and that the respondent was at the time of the petition unemployed and residing at c/o Restaurante Hong Kong, Barranquilla, Colombia, South America.

4. The parties had one child, namely Chan Heung Ching, a daughter, born on the 25th of January 1984. The petitioner alleged that the respondent had been wholly irresponsible as regards money from the time of the marriage, had failed to support her and the infant child and that he had suggested that she take up work as an escort or dance hostess, saying that he wouldn't mind if she had another man.

5. The petitioner alleged that the parties had separated on 30th of July 1984, whereupon the respondent immediately sold all the household property, keeping the money himself, and that, on the 26th of August 1984, he forcibly took the child away from the petitioner, with whom the child had, up to that time, been living. The petitioner, as well as asking for dissolution of the marriage, sought such order as to the custody of the child as the Court should deem fit and orders of maintenance for herself and for the child.

6. In the statement of arrangements for the child, which was filed with the petition, the petitioner said that the child was,  "presumably living with the parents of the respondent at Flat 20, 4th floor, Alhambra Building, 389 Nathan Road". She said that she had had no access to the child since 26th of August 1934 and proposed, in the event of a decree being granted, that the question of custody be decided by the Court. She stated that she "strongly objects custody be granted to the Respondent" and went on to say "the petitioner does not intend to have the custody of the said child". She also objected to the respondent having any access to the child.

7. The petition came on for hearing before a Judge of the District Court on 26th of June 1985. The petitioner was affirmed and stated that the contents of her petition had been translated and read over and explained to her and confirmed that they were true. She stated that the statement of arrangements truly represented her plans for the welfare of the child and that she believed "child is with paternal grandparents - she can be sent to orphanage". The Court held that it was not satisfied as to the truth of the petitioner's allegation, dismissed the petition and made no orders to costs.

8. It appears that what principally concerned the trial Judge was the wholly unsatisfactory statement of arrangements. He was, understandably, disturbed that the petitioner, without having ascertained whether or not the child was presently being satisfactorily cared for, proposed that she be sent to an orphanage. It seems that he considered that a person who would make such a suggestion was a person who was not worthy of credit on any matter. The Judge was not, we are satisfied, entitled to take that view.  The petitioner had sworn to the truth of the facts in her petition which, on their face, were such as would entitle her to a decree of dissolution.

9. There were two courses open to the Judge if had any doubt as to whether he should accept her assertion that the facts in the petition were true. Either he could have indicated to counsel that he should take the petitioner through her evidence, placing fully before the Court all the facts upon which the petition was grounded, or he could have taken the initiative and directed questions himself to the petitioner with regard to those facts.

10. Neither course was followed and, in the outcome, the petitioner's evidence as to the facts grounding the petition stood unchallenged. In such circumstances, it was wrong, for the Judge to have refused to grant a decree nisi.

11. Rule 9(3) of the Matrimonial Causes rules requires a petitioner, where there is a minor child under 16, to present with the petition a separate written statement as to the arrangements for the child. This was, as I have already said, done in the present case and it was clear that the Judge was not satisfied with those arrangements. He was entitled to be not satisfied. His reluctance to make the order sought by the petitioner, that the child be sent to an orphanage, is understandable. S.18 of the Matrimonial Proceedings and Property Ordinance however, requires only that a decree nisi shall not be made absolute unless the Court has declared that it is satisfied that satisfactory arrangements have been made for the welfare of the children.

12. The Judge should, in the circumstances, have granted the decree nisi though he would have been entitled to have indicated to the petitioner that she could not expect to obtain a decree absolute until the Court was satisfied as to the arrangements.

13. The appeal is allowed. The petitioner is granted a decree nisi of dissolution.

14. We make it clear to the petitioner that this decree will not be made absolute until she satisfies a Judge of the District Court, and we direct that it be a Judge other than the trial Judge, that satisfactory arrangements have been made for the child of the marriage.

15. We direct that the matters of custody and ancillary relief be adjourned to the District Court in Chambers and call for a Social Welfare Report to be supplied to that court.

16. The appellant petitioner to have her costs here and below. Those costs are to be taxed in accordance with Legal Aid Regulations.