MAN TING CHU v. WU WAI SUM STELLA

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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Background of the case

1. The Plaintiff ["Mr. Man"] was born in the Netherlands in 1944. His father is an indigenous resident in the New Territories.

2. Mr. Man first came to Hong Kong for business in 1979. He met the Defendant ["Miss Wu"] who was then working as a hostess in the China City Night Club ["China City"]. A relationship developed. Mr. Man returned to Hong Kong on a permanent basis in 1985. Their first child T.W. was born on 8.7.1986.

3. Miss Wu divorced her first husband ["Mr. Tse"] in 1987. In the same year, the parties moved into a house in Clearwater Bay together with M.Y.. a daughter from Miss Wu's first marriage. M.Y. unfortunately suffered from a terrible disease known as Takayasu. Mr. Man and Miss Wu had to take her to Canada in 1988 for a transplant. That proved successful. The efforts on the part of Mr. Man and Miss Wu must have been considerable.

4. T.L. is the second son of the parties. He was born on 8.9.1988.

5. In October, 1993, a maid who had been working for the parties since the birth of T.W. and T.L. was dismissed by Miss Wu on suspicion that the maid had short changed $1. A new maid Miss Mojica Lucia ["Miss Lucia"] was engaged by Mr. Man. The relationship between the parties had by this time deteriorated. Mr. Man alleged that Miss Wu frequently became agitated with him for unknown reasons. It is further said that she slept most of the day and hardly did any housework.

6. Mr. Man traded in the name of Wentrade. From 1994 his trading activities called for frequent travels to China. His travelling documents revealed that he had to visit China at least once or twice each month. Overnight stays were however rare.

7. In the autumn of 1994, when T.W. and T.L. were about to take their examinations, Miss Wu took the 2 of them to China. This was against Mr. Wan's wish. He was left with little time to prepare the 2 sons for their examinations on their return. Their results were appalling.

8. On 3.2.1995, Mr. Man met Miss Lucia in the mini-bus when he was returning from work. Miss Wu had earlier sent Miss Lucia to procure 3 types of medicine for treatment of her cold. Miss Lucia could buy merely 2 because most of the shops were closed for the Lunar New Year Holidays. Miss Wu became annoyed with Miss Lucia's failure. In order to prevent Miss Lucia's dismissal, Mr. Man had to send her out for a second trip to secure the missing medicine. A quarrel developed between Mr. Man and Miss Wu. Mr. Man said Miss Wu picked up 2 big kitchen knives and threatened to kill him. Various items were thrown at him in front of the children. He packed his belongings that night and left the Clear Water Bay Flat for a house in his father's native village (Chau Tau) in Yuen Long. He stayed there ever since.

9. Following a report to the Police, Mr. Man sought help from the Social Welfare Department. Miss Wu was then making numerous calls to Mr. Man. She said she discovered that Mr. Man was a homosexual and a ghost had told her so. She further said she herself sometimes doubted her won sanity and would like to see a psychiatrist. The assistance of a Dr. M.K. Ng of the Kowloon Hospital Psychiatric Unit was enlisted on 27.2.1995. Dr. Ng was of the view that Miss Wu was schizophrenic. Despite her reluctance. Miss Wu was sent from the Kowloon Hospital to the Castle Peak Hospital. She refused to be admitted to that institution and blamed Mr. Man for deliberately engineering her ordeal. Mr. Man was not allowed by Miss Wu to see or talk to T.W. and T.L. As a result, Mr. Man had to visit the 2 children during their lunch breaks.

10. On 18.3.1995, Miss Lucia telephoned Mr. Man indicating that she was dismissed by Miss Wu. Mr. Man asked Miss Lucia to help him at his home in Yuen Long. Miss Wu was therefore left without any domestic helper and the hygiene of the children suffered.

11. The Originating Summons in these proceedings was first taken out on 31.5.1995. On 9.6.1995, Mr. Man was informed by M.Y. that T.W. and T.L. could stay with him for the month or so as Miss Wu was too busy to look after them. Since that date, T.W. and T.L. have been staying with Mr. Man in Yuen Long. Miss Lucia continued to look after their daily needs:

12. Since 9.6.1995, Miss Wu only had sparse access to the 2 boys. She met them on 7th July, 30th August and 8th September 1995 and the 2 boys stayed with her overnight on 23rd and 30th December 1995 at her request.

Evidence before me

13. Miss Edith Lo ["Miss Lo"], Social Work Officer of the Child Custody Services Unit, has prepared a thorough and comprehensive report in relation to this case. Miss Lo says this :

"With respect to the children, the social findings indicate both parents are loving and concerning towards them. They are similarly affectionate and attentive to their needs, though the communication gap may have blocked their clear grasp of the situation. Both parties have put in efforts in the daily care of the children, a fact confirmed by the children themselves. The parents may sometimes hold different views about the affairs of the children. It is of no doubt that both of them intend for the children's good. Neither of them is considered to be superior in decision-making in all the matters. Under such circumstances, it may be for the best interests of the children if a balance of views can be achieved in the major issues. Besides, taking into account that the father is required to work outside Hong Kong from time to time, it is considered necessary to have another person available to act as the custodial parent in case of need. Therefore, I would venture to recommend joint custody of the children .... be granted to the parents in this case. In view that the children equally love both parents, shared custody may also minimize the psychological impact associated with schism in the family, as long as the parents can look beyond their differences and suspicions and cooperate for the welfare of the children from now on". [emphasis applied]

14. Miss Lo gave her evidence in a very fair and competent manner. I have no doubt that her recommendations are the results of her careful analysis of the circumstances which she has intimate knowledge. The 2 boys mentioned to her that they prefer to live in Chau Tau. They are on good terms with M.Y. Whilst M.Y. is repeating Form V, there is no suggestion that she is suffering from any behavioral problem. Since 9.6.1995, there was no severe disagreement between Mr. Man and Miss Wu although there was not much direct contact between them.

15. Miss Lucia told me that she witnessed Mr. Man being hit twice by Miss Wu. Ash tray and glass were used on the first occasion with Mr. Man bleeding as a result. She also described the daily routine of the children before and after they moved in with Mr. Man at Chau Tau. They now have a private tutor visiting them at 6 every day. The room they currently share is larger than the one they had in Clearwater Bay. From the way she spoke of the 2 boys she is obviously very fond of both of them.

16. Mr. Man informed me that he is in the export business dealing mostly in garments. He said when he was staying with Miss Wu, she would get up at about 4-5 in the afternoon well after he started work. She would seldom go to bed before 3-4 in the morning. At one stage mahjong was her favourite past-time but she stopped indulging in that game in 1992. It was him who helped the boys with their homework and when the maids had their holidays he also helped in house-work. He denied hitting Miss Wu. He further denied that these proceedings were for the ulterior objective of securing Miss Wu's property. He has made inquiries about changing schools for the 2 boys but was advised by the Social Welfare Department that he should await the outcome of this hearing. He has taken out insurance on his own life naming the children as the beneficiaries. He refuted the suggestion that he was involved in any homosexuality and expressed willingness to consult Miss Wu and give her reasonable access if he be granted sole custody of the 2 boys. Mr. Man appears to me to be a very intelligent man. I doubt if there is any chance in his resuming cohabitation with Miss Wu.

17. Miss Wu called Dr. Peter Ho Pang Nin ["Dr. Ho"]. Her visit to the Castle Peak Hospital on 27.2.1995 must have been a traumatic experience and she was determined to dispel any doubt over her mental competence. Dr. Ho examined her on 4 separate occasions in December, 1995. Dr. Ho is of the opinion that "there is not enough ground at present to suggest that Miss Wu is suffering from any mental illness nor that she is unfit to take care of her children".

18. Miss Wu gave evidence. She was asked why she is seeking custody of the 2 boys. She said this:

"Before they become mature they need the care of mother. They do not know how to look after themselves. They are young, very young. If they are left without proper care its unfair to them during their growth. As mother of the children [1] would say I can give best thing in the world to them. In my opinion they should have care of both parents. I do not wish to deprive the right of the children by anybody. They need people's love and care during this period of time. I am the mother of the children. I gave birth to them. I would like to care in the best way."

19. Despite the very searching and tactful cross-examination by Miss Remedios, there is nothing to suggest to me that this is not a belief genuinely held. She accepted that when T.W. was in the kindergarten, she was still playing mahjong although not on a regular basis. In 1990, she attended a hair dressing course and on graduation she started working in hair saloon. The long working hours prompted her to start her own saloon at home which met with Mr. Man's disapproval. She admitted that she threw "things" during the incident on 3rd February, 1995. She was hurt as Mr. Man showed greater concern about the maid's inconvenience than her indisposition. She was pressed as to why only limited access was sought by her between June 1995 and the date of hearing. I accept her explanation that she was uncertain as to how to obtain access in view of these pending proceedings. Her mannerism in the witness box shows that she is excitable. Given her background, she obviously had difficulties in understanding these proceedings. However when matters are clearly explained to her she can be rational and detached.

20. M.Y. was called by her mother. She was well dressed and composed. She described her mother's affections towards all the children. She admitted that her own father Mr. Tse (an ex-convict) had visited and stayed with her after Mr. Man's departure. Her relationship with the 2 boys was cordial. Mr. Man had done much to cure her of her illness. M.Y.'s gratitude towards him could easily be detected.

My Decision

21. This is a tragic case of emotional breakdown, when cultural gaps and personal circumstances engender miscommunication, divergencies in understanding of parental responsibilities, mutual suspicion, and violence. It is also a case of gender perceptions and expectations. It is unfortunate that two adults, both caring of their children, should be unable to sit down to reason out the best arrangements for their welfare.

22. By all accounts, Mr. Man is a loving father who generously shared his possessions with Miss Wu and took to heart the interests of her daughter by a previous marriage. His patient and meticulous care of the children, ironically, has been interpreted by Miss Wu as taking over her maternal role and forms partial basis for her suspicion of him as a homosexual. One can only guess at the grief and resentment caused by such a bias-laden charge levelled in front of the children.

23. On the other hand, it is not difficult to imagine the sense of insecurity and worthlessness Miss Wu must have suffered when her lover grew increasingly aloof and disapproved of her working outside of the home, and further cast doubts on her competence as a mother. Having sympathy for her emotional distress, however, does not imply condoning abusive behaviour. She must appreciate that any real hope in securing Mr. Man's return lies in display of care and reason and not in manifestation of temper and violence.

24. Miss Wu's love and concern for the children are not in dispute. What is at issue between the parties is whether joint or sole custody is in the best interest of the children. I am satisfied that the existing arrangements should not be disturbed. The boys are in the care of their willing father - who is in a better position to provide a stable environment - and well looked after by a maid who knows them and is devoted to them. Mr. Man has however strongly urged that he be granted sole custody on the ground that his relationship with Miss Wu is so strained that the two of them would not be able to communicate properly on important issues affecting the welfare of the two children. Whilst I can understand that feelings between the two ran high in the months of February and March 1995, I am not persuaded (despite the eloquence of Miss Remedios) that the separation of the parties did not result in a cooling off since then. Both of them have displayed before me genuine concern for these two boys, who in turn show equal affection for both. Miss Lo of the Social Welfare Department was in constant touch with both of them. She has recommended that joint custody be vested in the father and the mother. The very fair and meticulous way in which she gave her evidence serves to enhance the weight which I must attach to her recommendations. For these reasons, I refuse to accede to Mr. Man's application. I have drawn attention to the caveat in Miss Ho's report. The matter should therefore be kept under review. Hitherto access had been afforded to Miss Wu. The frequency of such access should be properly formalized so as to avoid any misunderstanding and to facilitate proper planning of the children's schedule. I would direct that the mother should have overnight care of the two boys from after school hours every Friday to 6 p.m. every Saturday.

25. At my request Miss Remedios has very kindly submitted a draft order for my approval. I would make an order in terms of that draft and direct in relation to paragraph 8 of the draft that the question of custody be brought before the court again on a date not earlier than 6 months from the date of this Judgment.