YUNG HUNG SZE v. SAH YEE

IN THE COURT OF APPEAL

1989, No. 197
(Civil)

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J U D G M E N T

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Kemnpster, JA (giving the judgment of the Court) :

1. This is an appeal by a mother from an Order made by Judge Chism in the District Court on 9 Novmber 1989 whereby he ordered a father to pay to her $500 a month and, twice yearly, further sums of $500.

2. The proceedings arose under the provisions of s 10 of the Guardianship of Minors Ordinance (Cap 13). In subsection 1 provision is made for the court to make an order for the custody of a minor and for rights of access having regard to the welfare of the minor and to the conduct and wishes of the parents. When making such an order the court is also given jurisdiction, by subsection 2, to require the parent to whom custody is not granted to make lump sum or periodical payments for the maintenance of the minor. In exercising that power the judge is required to do what he considers reasonable having regard to the means of the paying parent.

3. There is some history behind this appeal which we will seek briefly to recount. In 1962 the respondent and the appellant were married in China, In November 1972 a boy (“the minor”) was born to them suffering from Downs syndrome and from a heart condition which, in combination, will call for continuous attention for the whole of his life. At the time of the hearing before Judge Chism he was under treatment in an infirmary but liable to be discharged into his mother’s care when considered sufficiently well. That information derives from a social welfare report of even date prepared for and considered by the judge which was drawn to our attention by the father.

4. Returning to the history of the matter, in 1973 the parties had ceased, it would appear, to live together and the father to make payments for the minor’s upkeep. In that year the mother, the minor and the elder son of the marriage came to Hong Kong. In 1975 the father and mother were divorced in Peking. The father remarried and there is a child of that subsequent union. In 1978 the father himself came to live and work in Hong Kong bringing with him his second wife. and their child.

5. In 1986 the mother was minded to arrange for an operation on the minor’s heart to be performed in the private sector. In April of that year she issued an originating summons which was heard on 14 May and resulted in the grant of custody to her and to an interim order for the payment of $1,500 per month by the father for the minor’s maintenance pursuant to s 10 of the ordinance. The father applied to discharge that interim order. A succession of affirmations from the parties followed. On 18 November 1986 the father’s application to discharge was heard and, by a Consent Order reached in the context of separate legal advice given to the respective parties, Judge Hansen ordered a stay of the proceedings conditional on the father paying into court a lump sum of  $40,000. That payment, duly made, was expressed to be in full and final settlement.

6. While that was the understanding of the parties and expressed in the order it is, as a matter of law, not within the power of a court to deprive itself of its statutory jurisdiction. For this reason it was proper to entertain an application made by the mother, by summons dated 9 February 1989, to lift the stay and to require the father to make further provision for the maintenance of the minor. On 23 February that application was adjourned sine die because HH Judge Blackwell took the view that it should not be entertained until the $40,000 had fully been administered. In due course the application came back before Judge Chism who made the order already described.

7. We do not have the advantage of counsel’s or of solicitors’ notes of the reasons which, obviously, the judge, gave when he made his order. We do, however, have a copy of the contemporaneous note which he had before him when he did so. Further, the nature of the reasons orally given is necessarily to be inferred from the terms of the grounds of appeal paragraph 1 of which reads :

“ ... the learned Judge erred in taking into consideration the effect upon the respondent (that is the father) of the apparent finality of the Order made on 18 November 1986.”

We are satisfied that in so doing the judge showed a correct appreciation of the father’s understanding of the 18 November 1986 order. Following the date in question the father had sold the property in which he and his wife, sick and unable to work, and son were living and entered into obligations to fund the acquisition of a better property. Tile implicit criticism of this transaction made on behalf of the mother by Miss Leong is unwarranted.

8. The second of the grounds of appeal now relied upon reads: -

“That the learned Judge failed to take sufficiently into consideration that the respondent had an average surplus sum of $1,400 per month which could and should have been applied for the maintenance of the minor."