LAM SIU LIN AND ANOTHER v. CHUANG KWEI LUN QUINCY

CACV 120/2004 & CACV 121/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal noS. 120 & 121 of 2004

(on appeal from FCMP No. 211 of 2001)

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J U D G M E N T

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Hon Rogers VP:

1.  These are appeals from the judgment and orders of His Honour Judge Geiser given on 5 January 2004.  The judge had dismissed an application on behalf of both applicants to have the respondent committed for contempt of court in failing to honour an undertaking that had been incorporated into a consent order made on 24 June 1997 and he had discharged that undertaking.  The appeals were against both orders.  At the conclusion of the hearing of this appeal this court dismissed the appeal in respect of the committal for contempt of court with reasons to be given in writing and reserved judgment in respect of the undertaking.

The background

2.  The 2^nd applicant is the child of the 1^st applicant and the respondent, who are not married.  Proceedings had been commenced in December 1993 under the Guardianship of Minors Ordinance, Cap. 13 and the Parent and Child Ordinance, Cap. 429.  It is unnecessary to recite the history of those proceedings.  It is sufficient to state that in an Agreement and Minutes of Order which were annexed to a consent order made on 24 June 1997 the respondent undertook, amongst other things, as follows:

“To provide within 12 months from the date hereof, and/or to guarantee the provisions of, accommodation of not less than 500 square feet in North Point, Causeway Bay, Happy Valley or Central as residence for the 2^nd Applicant until he reaches the age of 18 or has completed full-time education whichever is later and to pay for all management fees, government rent, rates and other non-current expenses of capital nature in respect of such accommodation.”

3.  The 2^nd applicant turned 18 in March of this year.  At the time that the order was made the 2^nd applicant was living with his mother, the 1^st applicant, in public housing in North Point.  It was the respondent’s case that although that accommodation was due to be demolished the 1^st applicant did not wish to move from that accommodation until she had secured other public housing.  It was for that reason that the applicants remained in the housing until late December 2000 or early 2001 at which time the 1^st applicant had secured rehousing in a public housing unit at the Ma Hang Estate. 

4.  The 2^nd applicant although now aged 18 is still, we were told at the hearing, attending Form 5.  He is still, naturally, living with his mother.  Although it takes the 2^nd applicant at least one hour to travel each way to school and back it seems that he is likely to remain living with his mother in the Ma Hang Estate.  There is only a scant suggestion that the 2^nd applicant might be able to live in some other accommodation provided he had a servant with him.  It seems that the regulations in respect of public housing would cause the 1^st applicant to lose her accommodation at the Ma Hang Estate were she to move out.  The practical reality is, therefore, that the 1^st applicant is almost certainly bound to remain living in her accommodation at the Ma Hang Estate and that the 2^nd applicant will remain living with her at least for the time being.  Thus, although there is no dispute that the respondent did not provide accommodation as is referred to in the consent order, there is clear indication that it is not required.

5.  The judge heard the application over a period of 3 days and he came to the following conclusion:

“12.I am aware that there is a dispute between the parties as to the reasons why the undertaking was not put into effect.  However, bearing in mind the high standard of proof required in cases of this nature, I cannot discount the reason put forward by the Respondent in that the 1^st Applicant positively did not want compliance until such time as she had managed to retain her priority for re-housing and secured the unit at Ma Hang Estate.  Quite significantly, it seems to me the evidence suggests that at the time the 1^st Applicant’s solicitors wrote to the Respondent’s solicitors on 19^th February 2001 in this connection, the 1^st Applicant had not only secured her new unit at Ma Hang Estate but had actually moved in. 

13.Bearing in mind these matters and all circumstances of the case, whilst I am satisfied that there has been a technical breach of the undertaking made by the Respondent to the court on 24 June 1997, I am satisfied that the 1^st Applicant has indeed by her conduct acquiesced in this breach and that consequently, there is no contempt of court.”

6.  On this appeal, Mr Acton-Bond, who appeared on behalf of the applicants, sought to take a number of points but did not show any case for challenging the finding of fact by the judge.  One of the matters raised was that the 2^nd applicant was not in a position and could not have waived the undertaking which had been given to him and for his benefit.  In my view, that argument simply shuts its face to reality.  The 2^nd applicant was a child living with his mother, as he does now, and there was simply no question of accommodation being provided for him.

7.  Quite apart from that, it also seems to me that the undertaking which was the subject of the contempt proceedings was one which had to be observed within 12 months of the making of the order.  If it was waived at that time, or perhaps more correctly, the parties agreed at the time that that undertaking in the order would not be put into effect because there was no way in which the 2^nd applicant could take the benefit of it, the undertaking for that reason lapsed notwithstanding that if it had been put into effect it would have lasted until the 2^nd applicant had reached the age of 18 and had completed his full-time education.

8.  The other complaint made on behalf of the applicants was that the judge had discharged the undertaking.  It should be mentioned that the respondent had caused a summons to be issued on 20 December 2002 seeking the discharge of the undertaking.  There had also been a summons issued on 5 September 2002 to vary the maintenance order.  At the commencement of the committal hearing on 1 December 2003 there had been an order by consent which provided two things.  In the first place it recorded the agreement of the respondent that the tuition charges of a private tutor or tutors for the 2^ndapplicant should be paid directly from a trust fund which the respondent had set up previously.  In the second place the monthly sum paid in respect of the 2^nd applicant’s living expenses would be increased to $10,000 per month from $7,500 a month.

9.  In my view, given the circumstances of the parties and the lack of the present requirement for any accommodation in North Point as well as the likelihood that the 2^nd applicant would in the not too distant future leave school and, perhaps continue his full-time education somewhere else, coupled with the fact that the time for provision of the accommodation had long since passed, the judge was clearly right to discharge the undertaking in respect of the accommodation. 

10.  As was pointed out by Mr Clough who appeared on behalf of the respondent, the provisions of section 12A of the Guardianship of Minors Ordinance, Cap. 13 would enable an order to be made in respect of maintenance which would extend beyond the age of 18 of the relevant person.  Section 12A(3) reads as follows:

“(3)The court may include in an order referred to in subsection (1) in relation to a child who has not attained the age of 18 a provision extending beyond the date when the child will attain that age the term for which by virtue of the order any payments are to be made or secured to or for the benefit of that child, if it appears to the court that-

(a)that child is, or will be, or if such an order or provision were made would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also, or will also be, in gainful employment; or

(b)there are special circumstances which justify the making of the order or provisions.”

11.  The provisions of section 10 of that Ordinance permit a variation to be made see section 10(4):

“(4)An order under subsection (1) or an order under subsection (2) (other than an order for a lump sum payment in one amount, for a lump sum to be paid in instalments where all such instalments have been paid or for the transfer of property) may be varied, discharged, suspended or revived after being so suspended, by a subsequent order made on the application of either parent or after the death of either parent on the application of any guardian under this Ordinance, or (before or after the death of either parent) on the application of any other person having the custody of the minor by virtue of an order under subsection (1).”

Thus, it seems to me, that given the order of 1 December 2003, an application can be made, if appropriate, to vary that order to provide for maintenance of the 2^nd applicant, if the circumstances so justify such an application.

12.  For these reasons the appeal in respect of the discharge of the undertaking is also dismissed.  There be an order nisi that the costs of these appeals be to the respondent.

Hon Le Pichon JA:

13.  I agree.

Hon Waung J:

14.  I agree.