CCMJ v. SSM formerly known as SKL

FCMP 67 / 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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BETWEEN

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REASONS FOR DECISION

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Introduction

1.   This is an application taken out by the Applicant Father (hereinafter called “F”) for the custody, care and control of the child (hereinafter called “N”) born out of the cohabitation with the Respondent (hereinafter called “M”).   There is an alternative claim for joint custody of N with M and free access (including staying access) to the child N.  The present proceedings were commenced in March 2010.

2.  At the beginning of the trial, then Counsel for F and Mr. Chan solicitor acting for M agreed the Opening and Closing submissions will be given in English, the trial will be conducted in Chinese save and except the evidence of one of F’s witness, NR, who is a Filipino domestic helper, will be testifying in English.  Thus the transcripts of this hearing I recited in this Judgment are in Chinese (save as to witness NR’s evidence).  It is also agreed that this Judgment will be delivered in English.

Development of these proceedings

3.  These proceedings are somehow prolonged which I find it necessary to refer to the background of the case progress which had led to this case only being able to come to a full trial in February 2012, which is 2 years after the Originating Summons was issued.  This is unusual.  Given the spirit of the Civil Justice Reform nowadays, delay itself can cause injustice.  The trial had lasted for 15 days which is also exceptionally long for this type of case.  It is unfortunate that the substantive trial hearing itself has to be further prolonged for reasons which I will also set out below.

4.  The Applicant F has engaged 4 firms of solicitors, in their order of sequence, namely Messrs. Cheung & Liu, Messrs. B. Mak & Co., Messrs. Michael Li & Co., and finally Messrs. Lam, Lee & Lai.  The first firm of solicitors Messrs. Cheung & Liu was replaced on 28 April 2010 which is around a month after proceedings started.  F instructed different Counsel to attend all the hearings.  The Respondent obtained legal aid on 22 July 2010 and was represented by 2 firms of solicitors, in their order of sequence, namely, Messrs. Alvin Cheng & Rosaline Choy, Messrs. Chan, Wong & Lam.

5.  Soon after the issuance of the Originating Summons, there were interim applications on defined access taken out by F which was heard by the learned Deputy Judge Tracy Chan on 19 October 2010.  On the same day, the learned deputy Judge saw fit to direct the Applicant’s Originating Summons be listed for trial with 6 days reserved in consultation with Counsel’s diary.  There are also directions on updated social investigation report on question of custody for the purpose of the substantive trial.

6.  On 17 November 2010, M’s solicitors invited F’s then solicitors Messrs. B. Mak & Co., to attend Court on 22 November 2010 for fixing the 6-day trial as directed.  On 19 November 2010, Messrs. B. Mak & Co., replied saying that F was in the course of changing Counsel and requested for withholding fixing of the trial dates.  This letter was acknowledged by M’s solicitors on 20 November 2010 as follows :-

“We refer to your letter of 19 November 2010. We acknowledge your request for us to withhold from fixing date for the 6 days trial in pursuance of the Order of Deputy Judge T. Chan on 19 October 2010 for the time being. Please notify us promptly upon attainment of your client’s Counsel’s diary.”

7.  On 17 December 2010, apparently in the absence of any reply from F’s solicitors, M’s solicitors wrote to Messrs. B. Mak & Co., as follows :-

“Since nearly one month has elapsed since your letter dated 19^th November 2010, we assume that we can now proceed to fix date for a 6 days trial.

Please be informed that our clerk will attend the office of Senior Judicial Clerk sitting at Listing Clerk office, Family Court Registry, M2 Floor, District Court, 12 Harbour Road, Hong Kong, on Wednesday, the 22^nd day of December at 11:00 a.m. for the purpose of fixing the date of the hearing.

Please send your representative along, failing which, a date will be fixed in your absence.”

8.  On 20 December 2010, F’s then solicitors Messrs. B. Mak & Co., wrote back and said :-

“We refer to your letter of 17 December 2010.

We are instructed that our respective clients are now going through mediation for a full and amicable settlement in relation to the captioned matter and hopefully fruitful outcome may be reached within 1 month time.

Should no settlement can be reached by the parties on or before the Chinese New Year, our client intends to instruct another solicitors firm and another Counsel to act for him in the 6 days hearing. As such, in order to save the parties’ time and costs, and in order to enable our client to have the diary of his new solicitor and new Counsel before fixing date, our client proposes that the fixing day be withhold till the conclusion of the mediation or the Chinese New Year, whichever is later.

Please take your client’s instruction and let us you’re your reply at your earliest convenience.”

9.  On the same day of 20 December 2010, M’s solicitors replied as follows :-

“We refer to your letter dated 20 December 2010. We agree, reluctantly, to postpone fixing dates until the conclusion of mediation, or Chinese New year by the latest. The ‘whichever is later’ cannot be right because such would mean that if mediation proceeds slowly then the parties have to wait. There must be some incentive to mediation to be swift and effective.”

10.  A Notice of Change of Solicitors was filed on 10 January 2011 by Messrs. Michael Li & Co. acting in place of Messrs. B. Mak & Co. as solicitors for the Applicant F.

11.  Eventually on 14 April 2011, the 6-day trial was fixed for 9^th to 11^th and 16^th to 18^th of November 2011 (“the November trial”).

12.  As directed by the Court, the social investigation officer handling this matter Miss Ma filed her updated report dated 20 October 2011 before the 6-day trial commences.  Miss Ma recommended the trial be adjourned for a clinical psychological report on the child N before she would be in a position to assist the Court with her recommendation on the issue of custody. 

13.  I noted that under paragraph 2 of Deputy Judge Tracy Chan’s Order dated 19 October 2010, F should file his Affirmation in Reply within 36 days (i.e. by 24 November 2010). However, despite F was legally represented throughout the entire proceedings from the beginning, there was no application to the Court seeking time extension to file such Affirmation in Reply.  Without the Court’s leave obtained in advance, F only filed his 5^th Affirmation in Reply on 19 October 2011 (which is some 11 months late and just 3 weeks before the November trial).   This 5^th Affirmation consists of 75 pages containing 254 paragraphs and 82 exhibits (exhibits no.38 up to 119).   Furthermore, without leave of the Court being obtained or any prior notice given, F’s solicitors filed the following additional Affirmations also around 3 weeks before the November trial :

(a)    Affirmation of Mr. B (F’s witness no.1) dated 24/10/2011;

(b)    Affirmation of Miss P (F’s witness no.2) dated 24/10/2011;

(c)    Affirmation of Miss NR (F’s witness no.3) dated 24/10/2011;

(d)    2^nd Affirmation of Miss A (F’s witness no.4) dated

(e)    F’s 6^th Affirmation dated 4/11/2011.

14.  In light of the above, M’s solicitors saw fit to raise an adjournment of the 6-day trial which was scheduled to start on 9 November 2011.  M’s solicitors were of the view that on all fairness M should be given at least 60 days to prepare her Affirmation in reply because of the bulk of Affirmations (both in terms of numbers and allegations raised) chosen to be filed by F at such a late stage.  F’s solicitors, however, considered the trial should nevertheless start as scheduled to first deal with those factual matters raised in all the latest Affirmations and then adjourned the trial part heard for other issues pending the clinical psychological report recommended by the social welfare officer Miss Ma.

15.  A short 30-minute direction hearing was arranged by this Court on an urgent basis on 8 November 2011.  F’s then Counsel Miss J. Tsui submitted that in light of the bulk of the latest affirmations produced, the trial will now be expected to last 14 days instead of only 6 days.  Having heard submissions, the November trial dates were vacated and re-fixed to February 2012 with 14 days reserved.  M was granted leave to file and serve her Affirmation in response to F’s Affirmations on or before 3 January 2012.   F was granted leave to file and serve Affirmation in Reply (if any) on or before 17 January 2012.   A Pre-Trial Review (PTR) hearing was scheduled for 10 February 2012.   At the PTR hearing, parties are directed to submit a joint letter of the witnesses attendance by 17 February 2012.   It was agreed by both parties that all the factual witnesses of F including F and M themselves would give evidence before the social welfare officer, clinical psychologist and medical doctors.

16.  The trial fixed for February 2012 commenced as scheduled.  In the afternoon of the 10^th day of trial (i.e. 29 March 2012) when M had been under cross examination for 5 days already, then Counsel Miss J. Tsui for F informed this Court that the parties have reached settlement and submitted a 3-page hand-written draft of the terms signed by respective solicitors.  In the presence of F and M, Miss J. Tsui gone through the entire hand-written draft of the agreed terms from beginning to the end before me.  Miss J. Tsui informed the Court that a formal Consent Summons would have to be prepared incorporating details of the terms agreed and then would be filed with the Court by 18 April 2012.  Miss J. Tsui was going on leave until around mid April and, in the meantime, the question of costs would need to be sort out by M’s solicitors with the Legal Aid Department since M is on legal aid.  Accordingly, the trial hearing was not proceed any further on that day but was adjourned to the next scheduled trial date of 20 April 2012.   I should perhaps emphasize that at that stage neither the social welfare officer nor the clinical psychologist or any of the medical doctors arranged by the parties had testified. Applicant’s case had closed and Respondent undergoing cross examination.  In fact, the updated social welfare report had not been ready yet because the clinical psychologist Miss Tso had just submitted her report on 27 March 2012, which is 2 days before the 10^th day of trial, when such ‘agreed terms’ came in.  

17.  It somehow happened that a Notice of Change of Solicitors was filed on 19 April 2012 (i.e. the date just before the resumed hearing) by Messrs. Lam, Lee & Lai, solicitors, acting for the Applicant F in place of Messrs. Michael Li & Co..

18.  At the resumed hearing on 20 April 2012, Miss A. Sin, a  partner of Messrs. Lam, Lee & Lai Solicitors, appeared before me and submitted that F gave instructions to her firm only the day before (i.e. 19 April 2012) to take over these proceedings.  She was instructed that F was under duress and undue influence by his then Counsel Miss J. Tsui and the former instructing solicitors on ‘agreeing’ to the terms of the draft produced to this Court on 29 March 2012.  F claimed that his former legal representatives had not maintained his wishes (沒有堅持他的意願).  F did not accept those ‘agreed’ terms anymore.  The matter was then adjourned to 30 May 2012 for further disposal in light of the late instructions received by Miss A. Sin.  Both parties have, however and without being directed by this Court, submitted written skeleton submissions for the 30 May 2012 hearing.

19.  At the hearing on 30 May 2012, Miss A. Sin confirmed F’s instructions to proceed with the trial since her final instructions are that no agreement had ever been reached between the parties on 29 March 2012.  It was finally confirmed by F through Miss A. Sin that the trial should be continued by me notwithstanding that those ‘agreed’ draft terms had been disclosed to this Court (see paragraphs 28 and 29 of Miss A. Sin written submissions dated 30 May 2012).   At the time when the “agreed” terms were disclosed, only those factual witnesses have given their testimonies.  The updated social welfare officer’s report had not yet been filed.  Given the fact that the central issue is the best interests of the child N which the Court must determine, any concession or compromise by the parties would not, in my view, compromise the Court’s impartiality and investigation duty on the central issue.   Accordingly, the following Orders were granted by me :-

(a)    The trial be continued on 24 July 2012 to 27 July 2012 with 4

(b)    Parties to file joint schedule of those witnesses not yet testified

(c)   Updated social welfare report be filed on or before 17 July

(d)   Costs reserved; and

(e)    Respondent’s own costs be taxed in accordance with Legal Aid Regulations.

Background

20.  The parties came to know each other in 2005.  F in his 1^st Affirmation confirmed he started dating M on 8 May 2005.  Since 2007, the parties started cohabitation at F’s present address.  Before that, M had already stayed with him overnight on frequent occasions.  In early 2008, M had become pregnant.  Although there was no marriage registration of their relationship, a Chinese marriage ritual was carried out in June 2008.  Out of the cohabitation, N, a girl, was born in November 2008.  It was common ground that there was some argument between the parties over change of milk powder for N when N was about 6 months old.  This led to M leaving F on 10 May 2009 bringing with her the child N to stay and live with her maiden parents until now.

21.  F is now aged 52.  He was educated up to post university level and had obtained a Degree in Electronic and Electrical Engineering in United Kingdom in 1983.  He is now holding a senior position in the  Department of Business Development with a listed company in Hong Kong.  He is living with his parents and some of his siblings in a house owned by his father in Kowloon Tong, Kowloon.    

22.  M is now aged 32.  She received up to Form 5 education.  In the past she had worked as a clerk.  She had also assisted in her father’s business.  At present she is a housewife looking after the child N full time and live with her parents in a Home Ownership Scheme housing flat.  This flat is owned by M’s father in Tseung Kwan O, New Territories. 

23.  N is now 3 years and 10 months old.  At the time of separation of her parents, N was only 6 months old. 

The Legal Principles

24.  Custody Orders are granted under the provisions of section 10 of the Guardianship of Minors Ordinance, Cap.13 (“GMO”).  The general principles governing custody of a child are set out in section 3 of the GMO (as amended on 13 April 2012) which provides :-

“(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property –

(a) In any proceedings before any court (whether or not a court as defined in section 2) the court –

(i) shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to –

(A) the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B) any material information including any report of the Director of Social Welfare available to the court at the hearing………”

25.  In addition, the Court may also take into account other matters in determining custody.  In the case of YLS v. TL (FCMC No.8396 of 2007) at paragraph 14 of the judgment where HH Judge Melloy said :-

“14. As I have stated previously (see ZZ v. KYL, unreported, 5 March 2008 and CHFS v. WPLM, unreported, 28 April 2008) there is no statutory checklist in Hong Kong, as exists in other common law jurisdictions, to help both Judges and practitioners, when determining issues relating to children. However, the Law Reform Commission in Hong Kong has recommended a draft checklist of factors based in part on the Children Act 1989 in England and s. 68F (2) of the Family Law Act 1975 in Australia, in its report on Child Custody and Access (March 2005). As in

previous cases I intend to refer to that checklist in so far as it relates to the circumstances of this particular case. The factors then are as follows :

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) the child’s physical, emotional and educational needs;

(c) the nature of the relationship of the child with each of the child’s parents and with other persons;

(d) the likely effect on the child of any change in the child’s circumstances;

(e) the child’s age, maturity, social and cultural background and any other characteristics which the court considers relevant;

(f) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(g) any harm which the child has suffered or is at risk of suffering;

(h) any family violence involving the child or a member of the child’s family;

(i) how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(j) (a broader formulation along the lines of) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(k) the range of powers available to the court under this Ordinance in the proceedings in question;

(l) any other fact or circumstance that the court thinks is relevant.

26.  I will also adopt the above checklist whenever they are relevant to the circumstances of the present case. 

The Father’s case

27.  It is the father’s case that the mother M is unfit as a primary care giver of N.  In F’s 1^st Affirmation which consists of 105 pages (containing 191 paragraphs and 22 exhibits – exhibit no.1 to 22), apart from setting out the necessary background information, contains numerous accusations against the mother M’s personality and character.  This 1^st Affirmation is divided into different sub- headings, namely :

  (a) Birth of the Child;

  (b) M’s denial of his access to the child;

  (c) Dynamics in the relationship with M;

  (d) Character of M;

  (e) Differences in values and beliefs;

  (f) M’s taking away of the child and events thereafter;

  (g) Personal background of F and M;

  (h) F’s plan for the child’s future;

  (i) F’s application.

28.  The exhibits produced to this 1^st Affirmation contain several handwritten letters in Chinese from F to M, from F to the child N, photographs and various other documents. There are handwritten notes and description given by F to explain or elaborate the contents of some of these letters, photographs and documents.  Suffice to say is that all these letters reveal that the parental conflicts over the child are both substantive and emotional.

29.  In F’s 5^th Affirmation in Reply which consists of 75 pages (containing 254 paragraphs and 82 exhibits – exhibit no. 39 to 119), which was filed 11 months late and only 3 weeks before the November trial, apart from replying to M’s Affirmation, re-visited a number of matters already raised earlier.  I noticed that F had taken the benefit of the delay of time of 11 months to also include several other events which had happened during the 11-month period.  It is obvious that the antagonism between the parties escalated as these proceedings progressed.

30.  There was attached to this 5^th Affirmation several tenths of pages as exhibits which added up to a sizeable quantity of exchange of mobile text messages, emails, lawyers’ correspondence, school notices,

memos, report of N by dentist Dr. Wor Lam, report of N by Dr. Lam Chi Shing, Stanley, of Essence Rehabilitation Centre, Note of memo by Professor Albert M. Li of Department of Paediatrics, Prince of Wales Hospital, medical receipts, numerous photographs even including photos of N’s stool on diapers, rashes on N’s face, medicine bottles for N, snapshots of photos depicting N during father’s access and others.  Again, it is fair to say F is challenging M on virtually all aspects over the child care given to N as he possibly can.  

31.  Given this 5^th Affirmation was filed 11 months late and a substantial portion of the exhibits referred to incidents which had happened during this 11-month period, it does cast some doubt as to the genuine reason for the late filing of this 5^th Affirmation in Reply.  I have reservation on the reasons for delay given by F at paragraph 2 of this 5^th Affirmation.  Had this 5^th Affirmation in Reply been filed within the time directed by Deputy Judge Chan, which is by 24 November 2010 (see paragraph 13 of this Judgment), I would have thought the Affirmation contains much less accusations.  There are altogether 29 sub-headings in this 5^th Affirmation, which are :

  (a) Reply to M’s Affirmation;

  (b) My family;

  (c) Few incidents to explain;

  (d) M’s family;

  (e) M’s habitual lies;

  (f) Reply to Affirmation of M’s witness;

  (g) M’s reluctance to communicate over N;

  (h) Continuous difficult access;

  (i) 3 Nov 2010 event;

  (j) 30 and 31 Dec 2010 event;

  (k) Other occasions;

  (l) Summer holiday access;

  (m) N’s education;

  (n) N’s school attendance and behaviour;

  (o) Selection of kindergarten;

  (p) Y Kindergarten;

  (q) TL Music Playgroup;

  (r) Insufficient and Improper care to N;

  (s) N’s health issues;

  (t) Stained teeth;

  (u) Bow legs;

  (v) Tiredness of N;

  (w) Antibiotics and constipation problem;

  (x) Medical Insurance;

  (y) Allegation from M on F’s inability to take good care of N;

  (z) M’s hostile attitude towards F;

  (aa) More recent incidents;

  (bb) Bonding with N;

  (cc) Social Investigation Report. 

32.  In F’s 6^th Affirmation filed on 4 November 2011 (i.e. only 5 days before the November trial), which was filed without leave of the Court, there was produced F’s 120^th exhibit of a report from Mr. Ng Nai Kong, clinical psychologist of Centre of Marriage & Child Guidance as his exhibit no.”CCMJ-120”.  As at this point in time, no expert directions had ever been sought for production of such psychological report or for disclosure of the Reports of Dr. Wor Lam and Dr. Lam Chi Shing, Stanley, all of which had already been attached to F’s earlier Affirmations.  No leave had ever been obtained either for the filing of this 6^th Affirmation or those other Affirmations which I have referred to under paragraph 13 (a) to (d) of this Judgment.  This is unusual, if not improper, when F had all along been legally represented with the full benefit of legal advice.

33.  Besides, there are also video clips produced by F under Court exhibits A-3, A-4 and Affirmation exhibit no.”CCMJ-122” attached

to F’s 6^th Affirmation as evidence which were played during the trial hearing.  These video clips were aimed to show N’s mood change and reluctance to return to the mother after the father’s access. 

34.  F maintained that M had always been difficult to him over his access to N since separation in May 2009. A meeting with N was arranged by Miss A (F’s 4^th witness and his youngest sister-in-law) who had been the ‘go-between’ assisting F in contacting M after their separation.  The meeting was scheduled for 19 July 2009 at M’s father’s canteen in Cheung Sha Wan, Kowloon.  However, the meeting took him nowhere over conciliation with M except that he had a brief moment to see and hold the child N.  F’s case was that the meeting was ended when M turned hostile, chased after him to kick and bang on his car, used foul language at him, threw onto the street bags of clothes and toys which F brought for N.  It is also F’s case that M’s mother snatched the child N away from his arms and had used foul language at him.   

35.  F also alleged that M’s personality and character is being vindictive which could be reflected by the way which she had treated the child N.  F cited the case of M shaving N’s hair bald in winter time.  The other major allegations as to M’s unfitness as primary care giver include M giving elderberry juice to the child N which is not suitable for N, letting N wearing school uniform on his access days, letting N wearing over-sized underwear and shoes, excessive medication treatment and improper use of antibiotics, not attending to N’s stained teeth issue and oral hygiene, not attending to N’s bow legs condition; not attending to N’s constipation and rash problems; not attending to N’s retrieving behaviour in school.   

36.  Apart from the 4 witnesses of fact who had filed their respective Affirmations, F also arranged Dr. Leung Cheuk Wa, Wilfred, consultant paediatrician of Union Hospital, Tai Wai, Shatin and registered specialist in paediatrics with 16 years of clinical experience in paediatric specialty, to give evidence.  At the Pre-Trial Review hearing on 10 February 2012, F’s then Counsel Miss J. Tsui sought leave to adduce a medical report from Dr. Leung Cheuk Wa, Wilfred whose report was not yet ready or available at the PTR hearing but would be available in a week’s time.  Leave was then given for such report to be filed and served on or before 17 February 2012 (i.e. in 7 days’ time).   Dr. Leung prepared a letter dated 14 February 2012 on his overall assessment and as medical report on N’s physical and psychosocial health condition.  Dr. Leung turned up to testify at the trial.   

The Mother’s case

37.  M accepted there were arguments with F on the issue of change of N’s milk powder when N was about 6 months old.  This triggered the separation in May 2009.  M categorically denies all those of F’s allegations against her as to insufficient and improper caring for N.   M also refuted F’s allegations that she was being difficult on F’s access or she was being uncooperative with F on N’s school activities or academic progress at school. 

38.  M frankly admitted that she had initially expected F at the meeting on 19 July 2009 would invite her back home.  She strongly denies there was any hostility, kicking and banging F’s car, or had used any foul language at F in the meeting as F had now so alleged. To her disappointment F who, having met her and held N for a while, did not talk to her except to say : “Nothing to talk, see you in Court” (“冇嘢講，法庭見”).   

39.  As to all the other allegations of F, she said F had endlessly and surreptitiously raising complaints and finding faults upon her.  F would never be satisfied with any steps she took or any answers she gave.  M in her testimony said she was really tired with F’s lengthy and acrimonious and lengthy emails, letters and text messages and when she responded, it only ended up with even more accusations.

The “new” evidence from the Father

40.  F arranged 5 witnesses including Dr. Leung Cheuk Wa, Wilfred.  M arranged her elder brother and Dr. Cheng Chun Fai as witnesses.  I should also mention that on 23 July 2012 (i.e. the day before the re-fixed resumed trial on 24 July 2012), F’s solicitors attempted to file F’s 9^th Affirmation attached thereto an exhibit of a 51 pages long (149 paragraphs) Psychiatric Report from one Dr. Wong Chung Kwong attached with extracts from research publications.  This Psychiatric  Report and attachments added up to a total of 91 pages.

41.  Considering the spirit of the Civil Justice Reform (CJR) and the circumstances of the case, also in the interests of justice and on all fairness, and also I have heard submissions from F’s newly instructed Counsel Miss Annie Lai, I decided not to allow this 9^th Affirmation and the Psychiatric Report to be filed.  To decide otherwise would not simply lengthen the trial with costs escalate, the determination of N’s custody would be unnecessarily and further delayed.  In my view, this is certainly jeopardizing N’s interests.  F, with the full benefit of legal advice at all times, should not and indeed could not take the litigation procedure in his own hands and simply threw in whatever materials he thought useful to him and at any time he wanted.  I noted the clinical psychologist Miss Janet Tso in her Report dated 26 March 2012 where she had already said :-

At paragraph 7.1

“………..Given the tense family dynamics, the child may feel trapped in between her parents and be pressurized.”

   At paragraph 7.2

“……..Neither parent seems to have a very good understanding of his or her own role in the problems between them and the way they tend to escalate their hostilities is at the expenses of the child………. Regardless of the underlying reason of tapping such video clips, the parents should understand that they are doing something harmful for a young child……….I would like to stress that if the parents’ hostilities continue to escalate, their child will be the one to suffer most at the end. As the child continues to be embroiled in the parental conflicts, the child will be overwhelmed and her psychological well being will be at risk. The child is in need to be pulled out of the middle between her parents (my emphasis).”

The witnesses’ evidence

42.  To start with, I will deal with the evidence of each of the witnesses of fact followed by the evidence of the social welfare officer and clinical psychologist.  In light of the several tenths of F’s accusations against M from earth to sea on virtually all matters, I do not venture to go into and resolve the truth, falsity or reasonableness of each and every dispute or allegation raised by F or his witnesses.  In my view, the Court’s finding on accusations would only be necessary and meaningful if it sheds light on whether a party is a fit custodial parent or that it touches upon the best interests of the child.  To do any further than that would only be tentamount to adjudicating upon the parties’ personal grievances and emotions rather than determining the central issue, which is, what kind of custody, care, control and access order would serve the best interests of N ?   

43.  I will approach the factual evidence along such line.  I will also refer to those parts of the transcripts of trial whenever they are useful for determining the credentials of the respective witnesses.  I have had the benefit of observing the demeanour of the witnesses and the parties while they gave evidence in court.  For those matters which have not been set out in this judgment is because either they are immaterial or because they are controvert by my findings on other material evidence.

44.  In relation to the evidence of Dr. Leung Cheuk Wa, Wilfred, arranged by F and Dr. Cheng Chun Fai arranged by M, I will refer to their respective evidence where appropriate. Suffice to say is that leave was granted for F to produce medical report of Dr. Leung and not Dr. Cheng.  However, there was an Affirmation filed by Dr. Cheng on 3 January 2012.  

F’s witnesses no.1 – Mr. B

45.  Mr. B adopted his Affirmation filed as his evidence in chief.  He came to know F through business work around late 2008.   His Affirmation mainly referred to what had happened at the 19 July 2009 meeting at M’s father’s canteen with some reference to the family background of M.  In his Affirmation, he said the following :-

“12. Shortly afterwards, I started to hear the Respondent shouting to

the Applicant words such as “攔返入嚟呀” ，“死返入嚟呀” ,

“你聾架？” and “聽唔聽到呀，仆街？”. I did not know the

reason of such a sudden burst.

………….

16. I chatted with both the Respondent’s father and elder brother for

roughly 10 minutes. I then witnessed another shouting. I

turned my attention and saw the Respondent’s mother shouting

quite furiously to the Applicant “比番個BB我，無嘢講就攔

啦” . The shouting was mixed with foul languages which I

shall not repeat. She then tried to pull N out of the Applicant’s

arms.”

46.  Mr. B was requested to draw a sketch of the layout of the canteen where the meeting took place.  He confirmed he was sitting right in front of the cashier where M was.  He also confirmed the distance between him and M was rather close so that he would be able to hear what M said.  However, his testimonies under cross examination seriously depart from his Affirmation which I will set out below.  I find him to be incredible.

47.  Firstly, I noticed him tend to avoid directly answering questions or to delay in giving his answers. Quite a lot of his answers (as can be seen from the transcripts) he would say ‘should be’ this or ‘should be’ that (應該係).

48.  Secondly, from the following extracts (from D to M at page 47 of the transcripts), it can be seen Mr. B’s answers (underlined and in bold) were neither candid nor coherent :

“問 : 好喇，我想問下，即係既然你背向住佢，嗰番話講

出嚟，你有冇拎番轉面望下邊個講嗰番話呢？

答 : 點解我講呢，因為嗰個--我啱啱坐喺嗰個收銀嘅後面

吖嘛，變咗係容易聽到囉。

問 : 但係就…….

答 : 嗰個聲係--係好易聽到囉。

問 : 有冇睇到，問題呢？

答 : 有冇望，咁講--望。

問 : 有冇望呀？

官 : 有冇？

答 : 有。

問 : 有望，係。就喺邊個時段嗰番話係講出嚟嘅呢？

答 : 喺邊個時段呀，因為你正話講嘅就陳xx喺度行吖

嘛，係咪呀？

問 : 唔。

答 : 咁有時我哋坐嘅話都係背--雖然話背住，都係咁樣

坐，咁去睇下，有咩嘢埋去傾，咁望嘅啫，係咪？

明唔明我意思呀？即係我係----張檯係咁樣，其實我

坐嘅位置係--嗰陣時咁喇，佢喺呢面嘅話，咁我係咁

樣，……

問 : Okay。”

49.  Thirdly, during re-examination by F’s Counsel to clarify whether he heard M’s mother scolded F, Mr. B was not sure that he had heard M’s mother scolded F (underlined and in bold) (at N of page 54 up to D of page 55 of the transcripts) where this witness said :

“問 : 其實正話有少少嘅混亂，就係講緊話你聽到--你又

講得唔知係問緊係媽媽鬧吖，定係 M鬧喇，其實

以你諗番起而家你記憶，其實媽媽--你正話講就話

係M講咗嗰拃字喇，其實你諗番起，其實M個媽

媽有冇都當日有鬧到F呢？

答 : 呢個我唔係好記得清楚，所以佢問--所以我問--問佢

就係佢媽媽定係佢嘅問題，因為呢個我就好--好似

强調咗地方嘅問題，因為我哋個位置坐嗰陣時比較

係近佐嗰個收銀台，變咗好清楚聽到。同埋嚟計，

佢哋喺--喺中間嚟計裡面，即係有咩嘢講嘅話，我

未必聽得到架嘛。

問 : 唔。

答 : 係咪呀？

問 : 唔。

答 : 即係佢--佢阿媽可能係--喺中間嗰面架嘛，咁變咗嚟

計就係--我就係--所以我要澄清呢個問題咁解。

官 : 唔係，當然問就梗係問你聽到啲嘢喇，係。

答 : 係。

官 : 咁譬如你坐喺度，咁好似而家我坐喺度審緊，我隔

籬庭講咩嘢，我梗係唔知喇，係咪？即係而家就

話，…..

答 : 你--okay。

官 : …..大律師嘅問題就係話你有冇聽到M嘅媽媽鬧F

囉？

答 : M嘅媽媽，我就…..

官 : 據你聽到喇，梗係。

答 : 係，我就聽唔到喇。

官 : 唔。”

50.  The above extract of the transcripts shows Mr. B did not hear M’s mother scolding at F.  This contradicts with paragraph 16 of his Affirmation where he said he witnessed M’s mother shouting quite furiously to F. 

51.  In reply to this Court’s questions as to whether he recognized M’s mother or whether M’s mother was actually present at the meeting, Mr. B was asked to demonstrate the respective positions of the parties at the meeting.  Mr. B was even not quite sure whether he recognised M’s mother or M’s mother’s presence in the meeting was even in doubt.  The following parts of the evidence are important (underlined and in bold).

(a)    At U of page 55 to C of page 56 of the transcripts (asked by Court) :

“問 : Okay, 係，嗰個--即係係靠近嗰面啲嘅，係咪？嗰面

嘅右邊啲嘅。好呀，做多一樣嘢啫，跟住你呢個—

呢個咁嘅位置，咁當時你有冇--其實有冇留意得到，

咁你話擰轉身，咁見到收銀位就M喺度，咁你有冇

察覺其實當時個媽媽喺邊度？

答 : 佢媽媽喺邊度，因為我未見過--我見過真正嘅媽媽未

先，我見佢媽媽，見佢媽媽，食飯嗰時見過一次，

好似係。

問 : 抑或你完全唔知邊個係佢媽媽？

答 : 係。因為點解呢，其實嚟講，我--呢度嚟計，佢哋成

班全部喺晒中間嘅。

(b) At R of page 56 to L of page 57 of the transcripts (asked by Court) :

“問 : 我唔係話M嘅家人呀，我話M的母親嗰一個女人，

一個女士，明唔明白？

答 : 明白。

問 : 係，係，咁我問你覺唔覺佢喺邊，你頭先好似又—

有冇見過，見過一次，咁你……

答 : 係喇。

問 : 係，你--因為我哋要靠你嘅證供吖嘛。

答 : 唔，唔，唔。

問 : 咁第一，而家面前我要問多你一樣嘢，咁你知唔知

當時嗰堆女性嗰度有冇M母親喺在埸呀？

答 : 即係呢樣嘢嚟講嘅話，之前係冇人問我呢樣嘢，即

係所以嚟計就--有陣時呢啲嘢佢叫我作個證供，我都

係一路傾嗰陣時一路諗緊當時嘅情況，咁嚟計突然

間問我嘅話，我要諗下當時個情況喇，又要，係

咪？我--即係唔可以亂咁噏架。

問 : 你咪諗囉，係，我唔係--唔係你--我唔係一定要

yes、no answer，你可以第三個answer，你話我

唔記得咪唔記得，真係，你話我唔知咪唔知囉。

答 : 我明白，我明白，我明白。

問 : 係，係。

答 : 真係唔記得喇。

問 : 唔記得M媽媽喺唔喺--當時……

答 : 係，你係咪--係咪當中M媽媽喺裡面呢？我唔記

得。

問 : 即係呢…..

答 : 即係嚟計，呢一個圈裡面有冇M嘅媽媽喺度，我

就唔記得喇。

問 : 但係個鋪頭裡面呢？

答 : 吓？

問 : 喺度架嘛，係咪呀？喺唔喺度呀？

答 : 鋪頭裡面就係 -- 其他地方冇人嘅。

問 : 其他地方冇人？

答 : 係。

問 : 係得一圈人圍住喺嗰堆，個圈，而你唔….

答 : 係喇，咁你-- 你話M媽媽喺唔喺-- 喺唔喺呢

-- 呢拃人坐喺度嘅話，我就冇話好細-- 刻意埋

去，逐個人去睇。

問 : 唔，唔，唔。

(c) From I to N of page 58 of the transcripts (asked by F’s Counsel) :

“問 : B生，你或者睇下記唔記得番，當然你正話 --

法官問你就係話，記唔記得S太，即係我地講緊

M個媽媽會坐邊，咁你就話唔記得喇咁，我想問

你，你可唔可以記得番，其實當日M個媽媽S

太在唔在埸嘅？

答 : 唔記得。

問 : 唔記得？

答 : 唔記得佢太太-- 佢媽媽有冇在埸，我唔記得。

因為嚟計，我入去嘅話就係嚟講，佢哋幾個女人

坐喺度吖，咁我冇刻意埋去逐過去睇佢個樣係邊

個，邊個打邊個，我入到去見到龍哥，咁我坐嗰

面，咁同龍哥打招呼，開始就喺度傾喇，咁佢哋

嘈嘅話我就望一望嘅啫，嘈就望一望嘅啫，我冇

話刻意嚟計睇到邊個打邊個嘅。

問 : 即係你而家你唔記得番喇？

答 : 係。”

(d) From R at page 58 to I at page 59 of transcripts (asked by M’s solicitor) :

“問 : B生，其實你係認得佢媽媽，係咪呀？認得M嘅

媽媽嘅，你哋食過飯嘅，係加太賀？

官 : 同唔同意先？第一、幾樣嘢，第一，就你同M嘅

媽媽食過飯；第二，食過飯之後都認得M個媽

媽。

Mr. Chan : 係、係。

官 : 係。

Mr. Chan : 唔該。

官 : 逐樣答喇，你。第一樣先喇？

答 : 應該係有食過飯，係。

官 : 咁食 --係，咁食過飯之後，咁你係咪會認得M

個媽媽，答案係咩嘢？

答 : 會唔會認得呀，係咪？即係你問而家嚟計，當然

嚟計，咁長嘅時間，我就而家肯定唔認得喇，係

咪咁講呀？

官 : 唔。

答 : 係，當時嚟計我嘅印象，我諗下先個印象，佢阿

媽都係瘦瘦地嘅，當時會唔會認得呢？應唔應該

認得呢，當時？

官 : 諗清楚。

答 : 你問我當時認唔認得呀？

問 : 係，當時認唔認得。

答 : 當時認唔認得。

問 : 唔係講今日認唔認得，當時認唔認得。

答 : 係，唔記得，真係唔記得咗喇。

問 : 唔記得咗？

答 : 係，因為記得咗嘅話，我就當時會話畀你聽我–

佢肯定坐喺邊個位置喇。”

52.  As can be seen from the transcripts, Mr. B in his answers to this Court’s question and even F’s Counsel, could not recall whether M’s mother was present within the group of women or at the meeting.  When answering M’s solicitor questions, Mr. B hesitated and kept repeating the question asked of him and then said he could not recall whether at the time of meeting he could recognise M’s mother.  With the benefit of observing Mr. B’s demeanour when testifying and his answers given, my impression is that Mr. B was simply delaying his answers to ‘buy time’ to think what answers would best assist F’s case.  In my decision, I find Mr. B neither honest nor credible. 

F’s witnesses no.2 – Miss P

53.  This witness claimed to have known F since childhood and have been friends with F for about 38 years. She stood to witness the parties’ separation and the access arrangement between May 2010 and the  beginning of 2011.  In her oral testimony, she explained not being involved further in the access arrangement was due to her personal health reasons.

54.  In her 10-page (41 paragraphs) Affirmation, it was divided into 8 sub-headings, namely,

(a) Initial Access Times;

(b) Shopping Malls Dinners;

(c) Sequence of events in July 2010

(d) Granting of Staying Access;

(e) N’s travelling on school bus alone;

(f) N’s birthday and Access denied;

(g) Other Access denied without explanations;

(h) End of my active involvement in 2011 and my conclusion

55.  At paragraph 7 of her Affirmation, she confirmed her presence without exception on all the access occasions between May 2010 and beginning of 2011.  She went on to describe those incidents which she had the strongest impression as to the attitude of F and M as parents and the child N’s reaction to them. 

56.  Her Affirmation contains quite a lot of either those so-called ‘second hand’ information fed to her by F or her personal feelings and perceptions.  To cite a few examples below which I underlined and in bold by referring to the paragraph numbers in her Affirmation :

“5. My impression on N on that occasion ……;

6. ……I was given to understand that M did not allow F to bring N to his home ……;

10. ……I was experienced with much negativity……….;

11. ……I felt sympathetic to F due to the attitude of M…;

13. ……I was told by F that the school………..., however I was then told by F that M had subsequently cut one of his access days….;

16. ……I was told by F…….. F had told me that despite what had happened only a week ago where he was treated rudely……;

22. ……..I was given to understand from F that M had told the social investigation officer….;

25. ……..I was told by F that not only was he denied access…… he had encountered much difficulty in persuading M to accept presents he had then prepared for N.”

57.  Moreover, this witness referred to M denied F’s access on 30 December 2010 without giving F any prior notice.  This was contained at paragraphs 33 to 34 of her Affirmation :-

“33. I would only cite one occasion by way of example, which was on 31 December 2010. I personally knew that in fact the day before, namely on 30 December, was access day for F. I had on 30 December travelled to F’s home to wait for N to arrive. F went to the usual pick-up point with NR but we were all told by M that N was sick and she had decided not to release her for access.

34. While I do not comment here whether M’s reason was genuine or not, I verily believe she could have given us prior notice and be more considerate. M knew very well that I live in Yuen Long.”

58.  Upon cross examination on this incident, this witness was referred to and taken through pages 1212 to 1213 of the Trial Bundle containing those SMS text messages exchanged in the evening of 29 December 2010.  The text messages clearly show M had notified both F and this witness at 10:45 p.m. the night before (i.e. 29 December 2010) as to cancellation of access on 30 December 2010.  The witness had been evasive in giving her answers which I underlined and in bold below.  It starts from paragraph M of page 76 to Q of page 77 of the transcripts :

“問 : 首先喺第一個SMS嘅message，第一個短訉喇，就似乎係 -- 即係我哋見到有一個9點03分嘅，就妳就係畀個短訉M ，寫住有關明天嘅安排，F發電郵給妳，請查閲。咁。

答 : 係。

問 : 係，妳記唔記得係咩嘢嘅情況之下，即係妳個目的

係咩嘢呢，呢個咁嘅短訉？

答 : 我唔記得。

問 : 唔記得，係。到到10點45分，佢(M) 就發咗一個短訉畀妳嘅，就 「BB發燒、感冒同埋嘔，十分需要休息，不宜舟車勞頓嘅，我會悉心照顧她，另外BB 因為病而取消探視，並非因本人嘅理由而取消，故此並不會後補探視。」妳記唔記得有冇收過呢個咁嘅電郵？

答 : 我唔記得。

問 : 唔記得。好喇，再睇落去喇，到到係11點32分。

答 : 係。

問 : 最後嗰個嘅，呢版紙，咁佢當時就話已經說了「不想女兒舟車勞頓，女兒留在家中休息最合適了，女兒生病看了醫生，並有醫生證明，請尊重和遵照法庭嘅建議。」呢個妳又記唔記得呢？

答 : 我唔記得喇。

問 : 係完全冇哂印象嘅？

答 : 係呀。

問 : Okay。咁再揭多一版喇，1213，喺12點08分亦都有個電郵畀妳嘅，直頭係講 -- 即係明天…..

官 : 短訊，係咪呀？

問 : 係，短訊畀妳，唔好意思，係。直頭係講明天嗰個探視就係取消哂今晚到此為止喇咁，呢個妳又有冇印象，又記唔記得呢？

答 : 冇印象，我唔記得。

問 : 但係妳又記唔記得第二朝早，妳有冇去任何人嘅地方係接N，覺得對--第二朝係做一個探視咁樣樣？

答 : 唔，我有去F屋企等F接N返屋企。

問 : 即係妳記得30號朝頭早，妳去左F屋企嘅？

答 : 係、係。

問 : 但係妳就完全唔記得之前嗰晚有拃咁嘅電郵？

答 : 係。

問 : 短訉，唔好意思，我成日講左「電郵」兩個字。但係妳自己出嗰兩個短訉，妳自己記唔記得呢？

答 : 我出邊兩個矩？

問 : 嗱，妳如果揭番1212頁吖。

答 : 係。

問 : 10點，係，9點03分吖。

答 : 係。

問 : 「有關明天嘅安排，F發電郵給妳，請查閱。」呢個妳記唔記得有冇出過呢個咁嘅短訉？

答 : 我就唔記得嘅，但係呢度印咗就應該有囉，咁F發咩嘢短訉畀M，我唔知入面寫乜個喎。

問 : 係，可能妳唔知。

答 : 係。

問 : 可能妳知，可能妳唔知喇，係咪？

答 : 係。

問 : 但係佢就跟住即刻話畀妳聽「Sorry，我上唔到網 。」咁，呢個妳又記唔記得呢？

答 : 我唔記得。”

59.  It is obvious that this witness selectively answered questions put to her.  I do not believe this witness, after she was shown those text messages sent to her by M on 29 December 2010 (at pages 1212 to 1213 of the Trial Bundle) could not recall any one of them but nevertheless she was able to recall both in her Affirmation and at trial that she went to F’s house on 30 December 2010. No issue was taken by F’s  then Counsel as to the veracity of those SMS text messages which were exchanged at a time not in contemplation that they would be used as evidence today.   In my decision, the only reasonable inference to be drawn, on balance of probabilities, is that paragraphs 33 and 34 of this witness’s Affirmation which are prepared for the purpose of the trial are untrue. 

60.  In my finding, this witness Miss P’s evidence is untrue and unreliable.

61.  As I said in paragraph 42 of this Judgment, I would only venture into those matters which shed light on fitness to be custodial parent

or touches upon N’s best interests.  Given the fact that there are evidence from independent social welfare officer and clinical psychologist as to the suitability of F or M as the custodian parent, both are evidently well experienced in this field, I do not intend to go into those other incidents related in her Affirmation.

F’s witnesses no.3 – Miss NR  

62.  This is one of the two domestic helpers working in the house of F.  Her Affidavit consists of 9 pages (36 paragraphs), and again, divided into a number of sub-headings, namely :-

(a) Jumping off the Roof Incident;

(b) C’s Family;

(c) Caring for N;

(d) Personal Hygiene;

(e) Health Care;

(f) Footwear;

(g) My direct interaction with M;

(h) Conclusion

63.  In relation to the jumping off the roof incident, this witness described it at paragraphs 7 to 9 as follows :-

“7. In around March of 2009, namely when N was around 4 months old, there was one afternoon when I was working on the roof of the Family Home on some laundry work. The roof and the top floor of the Family Home are connected to each other by some stairs. I remember I first heard some shouting of two people coming from the stairs where they sounded like arguing very angrily. Next I saw M and her mother, whom I met before at the Family Home, appeared from the stairs. They were continuing with the argument. I am able to understand the Cantonese language to a fair standard due to the many years I have worked in Hong Kong and serving the C Family. However, I am unable to say exactly what was said between M and her mother at that time. Even if I could understand some words at the time, my memory now has lapsed as to what I heard from them.

8. On the other hand, I remember very clearly that the scene was very emotional and from the gesture of both M and her mother, I immediately feared they would become harmful to each other. Then I saw the both of them tussled and M was pulled towards the edge of the roof by her mother and I did hear the word ‘jump’ (in Cantonese) repeatedly coming from both M and her mother. It appeared to me that M was going to jump off the roof.

9. Upon seeing that, I immediately ran over to M and grabbed her from her back where I used both of my arms to lock her and try to stabilize her. I would describe her as hysterical at that moment. She kept yelling and screaming to her mother. Although M did not push me or hurt me, she was struggling all the time and I had to hold her hard and away from the edge where she was still forcing her way over to it.” 

64.  Upon cross examination by M’s solicitor, witness Miss NR said (from C to J at page 91 of the transcripts) :

“Q. N, I put it to you that you misunderstood the whole situation. M was emotional. The mother was trying to comfort her.

A. I also described her mum, M’s mother, at the time was also very emotional, your Honour, and Mum M was very hysterical at that moment, your Honour, because her mother is the one pulling Mum M to come towards the edge of the roof, your Honour.

That’s when upon seeing hysterically Mum M at that time. And upon seeing that, I went over Miss M and grabbed her. I used both of my arms to grab her from her back, your Honour, just to stop her and try to stabilize, try to comfort her, your Honour.

Since Miss M did not push or hurt me, she still continued

shouting and yelling to her mother, your Honour.

Q. Now ………

A. And the mother did not come to comfort.  She has also come.

She is the one holding Mum M towards the edge, your Honour.”

65.  In answering this Court’s question for clarification, she said as follows (continue from K to U of the same page 91 of the transcripts) :   

“COURT : You said the mother was the one who pulled M to the edge ?

A. Yes, your Honour, because I was there working. I saw it personally, your Honour.

COURT: So while you observed this, while the mother was pulling M,her daughter, M, to the edge, did the mother say anything ?

A. Yes, your Honour.  I did hear the word ‘jump’ in Cantonese still.  If her (she ?) want to jump off the roof, she will jump together with her.

COURT:  You said you heard the word ‘jump’

A. Yes, in Cantonese…..

COURT: Tell me in Chinese.

A. ….“跳樓，跳樓，跳”

COURT: “跳樓” 。

A. Mm.

COURT:  Who said this ?

A. Mother of M.

COURT:  Okay, and just now you said the two of them jumped ?

A. If Mum M will jump, the mother will also jump, your Honour.”

66.  Upon re-examination by F’s Counsel, Miss NR said (from G at page 93 to P at page 94 of the transcripts) :- 

“Q. N, probably I want you to describe to us again about that occasion on the rooftop. Can you do it solely again ? Tell us what you see, what you saw and what you heard. Slowly, okay ?

A. Yes, your Honour. In around March 2009, while I’m working on the family top on some laundry works…..

COURT: Sorry. Slowly, yes. Do it again.

A. One afternoon while I’m doing some laundry works on the top ofthe family home ……

Q. Laundry, yes.

A. Laundry, 洗衫, laundry work……

Q. On the ?  On the ?

A. On the top of the family home, the rooftop, rooftop.

Q. You mean the roof, the roof floor.

A. Yes, where in there the stair and the top were connected with  each other, your Honour.  I first heard of shouting of two people coming up from the stairs, your Honour, and sounds they were arguing very angrily.  Then I saw Miss M and her mother appear from the stairs.  Then I did hear the words ‘jump’ and in Cantonese till many times in mother’s – to Mum M’s mother.  That’s why it appeared to me that Mum M was going to jump offthe roof.

COURT: From M or M’s mother ?

Q. Who wanted to jump ?

A. Mum M.

Q. M.

COURT:  M.

A. Yes.

Q. Yes, and then what happened ?

A. Then I saw Mum.  Then I was – I had – and I witnessed that her mother was --  hold Mum M towards the edge of the roof, your Honour.

COURT: Towards the edge of the roof.

A.  Towards the edge of the roof.

COURT: And then ?

A. I was there and I mean that upon seeing that, I went over Miss M and I used my arms to grab her, to lock her, your Honour, from her back.

COURT: Before you hold onto Madam M, okay, you said the mother of M pulled M towards the edge.

A. Yes.

COURT: Okay.  Was she successful ?

A. She’s still holding her until the place where I’m doing the work, the laundry works, your Honour.  It is at the centre.

COURT: Okay. Did you notice ?  Did M resist or just walktowards the edge when the mother --  you said the other pulled M.

A. When mother – the mother of M pulled her, she’s also walking, your Honour.  She’s also following her mother.  The mother walked first.

COURT: Following the mother.

A. Yes.

COURT: Not in the opposite direction.

A. No. Yes, following.

COURT: You mean the mother was walking in front.

A. Yes, walking first and holding her. Mum M’s mother.

Q. And so mother was walking in front……

A. Mother first, yes.

Q.  ……..and M following mother.

A. Yes.

Q. I see.

A. Until at the centre where the place where I’m doing some laundry works, your Honour.

Q. So and when you started to grab M.

A. Yes, your Honour.”

67.  First, in paragraph 8 of her Affidavit, she described M was pulled towards the edge of the roof by M’s mother.  She heard the word “jump” (in Cantonese) repeatedly coming from both M and her mother.  However, when answering this Court’s question (see paragraph 61 above), she said it was M’s mother who said the word “jump” (“跳樓”) in Cantonese.  Secondly, when being re-examined by F’s Counsel ‘who wanted to jump ?’ (see paragraph 66 above), this witness said it was M.  Here is the inconsistency.  Had M ever wanted to jump as she had so  answered F’s Counsel, I do not see the logic why, using the words of the witness, ‘M was pulled towards the edge of the roof by her mother’ (see paragraph 8 of her Affidavit).  M could have gone towards the edge of the roof and jump rather than ‘having to be pulled’ by her mother.  This is particularly so when this witness had described M’s emotion was being ‘hysterical’ at the time when this witness having had to hold M hard and away from the edge, but M was still ‘forcing her way over it’ (see paragraph 9 of her Affidavit).  Thirdly, the oral testimony that M was following her mother who was pulling M towards the edge of the roof simply does not sit happily with the scene of a hysterical person forcing her way over to jump off the roof.  Assessing her evidence, on balance of probabilities, I find her evidence unreliable.  I find this witness unbelievable.

68.  On such a finding, I do not accept the evidence of this witness Miss NR to be the truth.  In my view, her evidence is another attempt launched against the personality and character of M with an aim to undermine M’s suitability to be the custodian parent.  I have the benefit of observing M giving evidence of her case and answering numerous questions under cross examination for 5 days, her demeanour impressed me as being calm and patience all the time.  Her answers were direct and coherent which I find her credible.  This witness Miss NR’s other evidence and testimonies on those other sub-headings in her Affirmation are not accepted by me as truthful and reliable.

F’s witnesses no.4 – Miss A

69.  This witness is the younger sister-in-law of F.  She has provided two Affirmations, dated 18 October 2010 (in Chinese) and, a year later, on 24 October 2011 (in English).  The first Affirmation was filed in support of F’s application for variation of interim defined access although in there also contains reference to those incidents of M’s conduct which F is now claiming as part of his case.  The second Affirmation was amongst one of those several Affirmations filed by F without leave 3 weeks before the trial originally scheduled for November 2011.  Same as with the other Affirmations, this 16-page (68 paragraphs) second Affirmation was sub-divided into separate headings :

(a)  My two children and N;

(b)  My relationship with M;

(c)  M’s hostile attitude to me;

(d)  General health condition of N;

(e)  My observation on development of N;

(f)  Zhuhai Trip;

(g)  School Opening Day;

(h)  My view as to the present situation. 

70.  In broad terms, this witness confirmed all those matters raised by F on M’s character and personality and also the improper care given by  M to the child N. These are, namely, kicking of F’s vehicle violently after the meeting on 19 July 2009 (at paragraph 20); N’s head was shaved bald (at paragraph 23); M’s personality and character (at paragraphs 28 and 37); N’s nursery school enrolment encounter (at paragraphs 30 to 36); N’s stained teeth issue (at paragraphs 38 to 41); N’s constipation problems (at paragraph 42); N wearing school uniform for access (at paragraphs 43, 45 and 46); N not properly dressed by M (at paragraph 44); N wearing over-sized and improper shoes (at paragraph 48).  This witness then went on to set out her observation on N’s development and expression during those access times by F. 

71.      I will start with her evidence on the meeting on 19 July 2009 which meeting she had arranged for F to meet the child N.  She described the meeting at paragraphs 13 and 14 of her first Affirmation.  She only referred to the same meeting very briefly in one single paragraph 20 in her second Affirmation.

72.  In her evidence-in-chief about the meeting, she said (from T at page 98 to D at page 101 of the transcripts) :

“問 : 咁因為7月19號嗰個事件都可能有啲爭拗嘅，妳介唔介意喺呢度講番一次畀我哋聽，其實以妳嘅記憶，7月19號嗰日發生咗咩嘢事呢？

答 : 7月19號就係約咗--好似係傍晚時份喇，M 要求去嗰個爸爸開嗰個茶餐廳，喺長沙灣定荔枝角，喺嗰度見面嘅，咁我同我姑奶去先嘅，即係N個姑媽，咁就…..

問 : 係咪即係阿鍾呀？

答 : 阿鍾，係喇。

問 : 係。

答 : 咁我口哋去到就喺入面第一張大圓檯嗰度就坐低先，咁冇幾耐，我諗五--五至十分鐘喥喇，咁F就--咁入嚟，咁佢--見到個女就係咁喊、係咁喊、就….

官 : 唔係，邊個喊先？

答 : F喊。

官 : 係、係。

答 : 咁佢就抱起個女就擰轉身，咁但係M就話「你唔好同佢出去呀，返入嚟呀。」咁樣。

問 : 抱起個女，擰轉身？

答 : 擰轉身啫，係喇。

官 : 唔、唔、唔。

答 : 咁跟住F就坐咗喺我哋嗰個大圓檯嗰度係咁喊，即係係咁攬住個女囉，咁我姑奶就刮啲蘋果肉畀N食囉。

官 : 妳講慢些少，唔，唔。即係坐埋同一張檯？

答 : 同一張圓檯，一入門口第一張大圓檯。

官 : 唔，唔，okay，好。

答 : 咁鍾X (譯音) 刮啲蘋果肉畀N食囉。

官 : 阿鍾？

答 : 係。

問 : 阿鍾即係姑奶？

答 : 係，姑奶。

問 : 咁嗰陣N係咪仲係F抱住呢？

答 : F抱住。

問 : N有冇喊？

答 : 冇。

問 : 咁跟住發生咩嘢事呀？

答 : 咁然之後就大約十分鐘喥，就M個媽媽就過嚟抱走個女。

官 : M個媽媽？

答 : 係喇。

官 : 唔、唔。

答 : 咁然之後F就話「妳唔好嚇親我個女，妳唔好—即係妳唔好--妳唔好搶我個女，妳唔好嚇親佢。」

咁然之後佢阿媽就話「咁你有咩嘢，你快啲過去講清楚。」即係中間有啲粗口咁樣囉。

官  : 邊度有粗口出嚟呀？邊個講啲粗口出嚟？

答  : 佢，M個媽媽囉。

官  : 唔、唔。跟住呢？

答  : 咁然之後就--跟住就好混亂喇，跟住就F就--好混亂，我淨係記得跟住啲衫又喺個出面度就--跟住又抌咗，跟住M又匆…

官  : 慢慢先，妳而--妳講到就係話M嘅媽媽，即係嗰個N個阿婆喇？

答  : 係。

官  : 走去F度攞番N吖嘛？

答  : 係。

官  : 係，咁跟住妳又聽到啲粗口嚟自M媽媽吖嘛，妳話？

答  : 係。

官  : 係，跟住咁N係咪成--就落咗個阿婆手吖？

答  : 跟住轉頭，其實我唔係好記得，總之先尊……

官  : 唔記得照講唔記得。

答  : 哦，唔記得。

官  : 係，唔記得。好喇，咁跟住呢？

答  : 跟住F就返番上自已架車，架車泊咗喺茶餐廳嘅對面馬路。

官  : 係，係，跟住妳記得咩嘢？

答  : 咁然之後M就去咗對面踢佢個車門囉、拍佢個窗囉。

官  : 兩樣嘢嚟個喎，拍窗還拍窗、踢車門還踢車門喎？

答  : 係，兩樣，係呀，佢….

官  : 兩樣都有？

答  : 兩樣都有。

問  : 妳係咪親眼睇到？

答  : 係。

官  : 再見到啲乜嘢？

答  : 咁跟住就見到有一--有幾袋嘅BB衫喺個紙袋嗰度，就喺個--喺個條街個地下嗰度，囉咁我就即刻 同我姑奶去執番啲衫返嚟囉。

官  : 記唔記得邊個掉出去？

答  : M

官  : 妳見到，係咪呀？

答  : 係。

官  : 咁其實妳見到M去踢車、拍窗，又見到啲衫飛咗出去街度，咁妳個人妳自己喺邊，嗰陣時？

答  : 喺個茶餐廳嘅門口囉。

官  : 哦，okay。

答  : 跟住就我見到F喺架車嗰度又冇開窗、又冇講嘢，咁跟住之後就好似突然間散場咁樣囉，即係我—我同我姑奶又--跟住又拎埋啲衫走喇，我哋都各自各散。

官  : 唔。

答  : 即係散走咗喇。

官  : 好。

問  : 咁妳記唔記得成件事係擾攘咗幾耐喥，即係成個過程有幾耐喥？

答  : 我諗F抱咗個女就十分鐘喥，然之後加埋嗰啲，我諗二十零分鐘喇。

答  : 唔。

問  : Within 半個鐘之內囉，半個鐘之內。

官  : 唔，唔，Miss Tsui。

73.  There are discrepancies in her evidence.  First, she said once F held up N, M started to scold F furiously in the presence of the child and other persons (see paragraph 13 of her first Affirmation).  She then went further (see paragraph 14 of her first Affirmation) and said after F held N for few minutes, the meeting was ended by M and M’s mother foul language and rude conduct.  M had also chased after F yelled with foul language.  However, in her evidence in chief, she had never mentioned M had scolded F or used foul language.  She said it was M’s mother who had used foul language towards F.  Further, her oral testimony said the meeting lasted 20 odd minutes which conflicted with the time span of few minutes stated in her Affirmation.

74.  Upon cross examination on the issue of foul language, she said in fact it was rather messy at the time, she could only be sure that she had heard M’s mother using foul language.  From H to K at page 116 of the transcripts where it can be seen :

“問 : 唔清楚。A，請妳揭去第214頁吖。妳喺第14段嗰度就講到咁樣樣嘅，即係佢--妳講到妳看到M追住F粗言咒罵？

答 : 係。

問 : 寫到而家，佢有冇--當日有冇粗言咒罵呢？

答 : 其實當時好混亂，我好肯定就係聽到佢阿媽埋嚟嘅時候係有講嘅。”

75.  The other discrepancies came from whether witness Mr. B heard about M’s family member said about triad background.  In her first Affirmation (see also paragraph 14 of her first Affirmation) where she said :-

“……其他人，如B先生、B太太也聽到M家中的男仕自

稱黑社會不好惹。”

76.  However, also upon cross examination, she confirmed she was only told by Mr. B and Mrs. B subsequently.  (From T at page 116 to D at page 117 of the transcripts), where she said :

“問 : 因為我喺呢段度我順手問咗個問題嘅，妳話「其他人，如 B先生、B太太也聽到M家中的男士自稱黑社會不好嘢。」A，我真係想問妳呢個問題喇，妳點解會咁講嘅呢？妳聽到咪妳聽到囉，妳個講法就話「其他人，如 B先生、B太太也聽到M家中的男士自稱黑社會不好嘢。」妳點解會咁講呢？

答 : 因為之後我聽到佢哋講囉。

問 : 邊個講？

答 : 我聽到B生咁樣講囉。

問 : 妳係聽唔到嘅，係B生話畀妳知嘅？

答 : 係呀。

問 : B太太有冇話畀妳知呢咁？

答 : 有，因爲一齊坐低，後來我哋係一齊去社署嗰一

日，有一日我哋去社署，同黄先生講--講個事情之

後，我哋係落咗街去咗一間茶餐廳度食晚飯嘅，咁

我就係聽到B生、B太有講過呢一段嘢囉。

問 : 但係B生係會嚟做證人架嘛，點解妳唔留番B生

講，要需要喺妳份宣誓書度講呢句話呢？

答  : 對唔住，法庭嗰啲太仔細嘅，我真係唔識。”

77.  Obviously, her first Affirmation contains matters not within her direct knowledge and also mingled with hearsay evidence received subsequently.  This affects her credentials and the evidential value to be given to her testimonies.  It matters not that she does not acquaint with what information could be included in her Affirmation since it was prepared by F’s lawyers on her behalf and was explained to her when she deposed to it. 

78.  Suffice is to say that this witness’s evidence, in my decision, is not reliable as truth.

M’s witness – Mr. S (elder brother)

79.  Mr. S in his Affirmation, apart from setting out the family and his personal background, gave an account of what had happened at the meeting on 19 July 2009.  He agreed F held N in his arms with emotion.  F became emotional and sobbed uncontrollably.  Seeing such scene, his mother offered to receive N so that F could talk to his younger sister (i.e. M) face to face directly.  However, F refused to release N and then F’s second sister came over to offer to hold N. Once N was released, F simply said there was nothing to talk and they should meet each other in court.  F then turned to leave.  The whole incident, from the time F walked into the canteen until they left, was over within slightly more than 2 minutes.

80.  There was not much questions put to this witness, either in chief or in cross examination, to any extent which affect his credentials.  From observing his demeanour when testifying, I believe he is telling this Court what he had seen.  I accept his evidence to be the truth as what had happened on the 19 July 2009 meeting.

The Father’s allegations

N’s stained teeth

81.  F complained M lacked in providing dental care to N.  The issue was raised by F but allegedly unattended to by M.  F produced a report dated 22 August 2011 from Dr. Wor Lam of Bayley & Jackson, Dental Surgeons Ltd (as exhibit “CCMJ-89” to his 5^th Affirmation in Reply) where it was said :-

“The above-named patient was examined on the 19 June 2011 and found to have a very stained and unsightly deciduous dentition affecting both her front and back teeth. The probable cause is the ingestion of stain-inducing food and drink (and possible Chinese Medicines), coupled with poor oral hygiene measures at home.”    

82.  F produced photographs of N’s stained teeth at exhibit “CCMJ-87”; photographs showing F taught N on teeth brushing at exhibit “CCMJ-88”.  Dr. Wor Lam was, however, not called to testify at trial.

83.  F arranged Dr. Leung Cheuk Wa, Wilfred to give evidence.  Dr. Leung’s report takes the form of a letter dated 14 February 2012 and was filed as an exhibit (as exhibit no.“WWHH-1”) attached to the Affirmation of the then handling solicitor on 17 February 2012.  In the letter, Dr. Leung confirmed there were assessments by him on N’s general health condition on 3/11/2011, 30/1/2012 and 4/2/2012. Besides, there were consultations on 31/1/2012, 8/2/2012 and 11/2/2012 for reviewing N’s medical records, medications, photos of previous teeth cleanliness, reports from specialists and teachers, M’s views stated in the affirmations filed in these proceedings.  Dr. Leung adopted the contents of his report as his evidence in chief.

84.  Dr. Leung in his report said N’s teeth were lightly stained upon the 2^nd and 3^rd consultations and he was told that was after F’s effort on brushing and cleansing.  He was shown photographs of N’s teeth  taken by F before cleansing of teeth.  In his evidence in Court, he adopted the findings of Dr. Wor Lam, who was allegedly the person who checked N’s teeth whilst it was stained.  I cannot accept such evidence.  Dr. Leung is in effect adducing secondary evidence of Dr. Wor Lam on N’s stained teeth without himself actually underwent the checking and saw those teeth stains as appeared in the photographs shown to him by F.  In effect Dr. Leung was accepting the photographs as truth without himself directly seeing the teeth stains and also he was accepting the alleged stains were cleansed off by the effort of F.  This is in essence hearsay. 

85.  Furthermore, Dr. Wor Lam’s findings in itself are also unsatisfactory.  Dr. Wor Lam said the stained teeth issue could be a result of drinks and food coupled with poor oral hygiene measures at home.  Apparently Dr. Wor Lam was providing his findings or conclusion of the probable cause of stained teeth which he saw.  However, I noted that Dr. Wor Lam had not stated whether such conclusion was arrived at simply by physical inspection by his experience or otherwise.  More importantly, he had not stated whether enquiry had been made of M as to how she handles the child N’s oral hygiene at home; or had he enquired about the way as to how N brushes her teeth every day.  If such enquiries were made, they should be recorded by Dr. Wor Lam.  If neither of such enquiry was made, how could Dr. Wor Lam directly come to the conclusion of “poor oral hygiene measures at home” as the probable cause in his findings ?  It appears to me Dr. Wor Lam was making a positive assertion that the hygiene measures at home were “poor”.  Leaving aside the problem of hearsay, to accept Dr. Wor Lam’s findings and conclusion on the stained teeth issue, without knowing how such conclusion was arrived at by Dr. Wor Lam or him personally explaining his conclusion in Court and subject to cross examination, to be evidence of truth the stained teeth as seen in the photographs was related to M’s lack of care and attention would be wrong.  Thus, F was left with no evidence to support this particular allegation.

86.  On the other hand, Dr. Cheng Chun Fai filed an Affirmation covering various aspects of complaints by F including the stained teeth issue.  Dr. Cheng testified in Court on his Affirmation and subject to cross examination.  Dr. Cheng had been N’s paediatrician since her 26^th days of age.   In the last paragraph of his Affirmation, he said stained teeth, to be distinguished from caries tooth, is the result of interaction between teeth characteristics and the environment.  He went on to say teeth staining is usually not caused by any wilful or negligent means.  Dr. Cheng chose to disclose that his daughter also had stained teeth problems. 

87.  The fact that no expert directions were granted for Dr. Cheng’s evidence does not prevent him from filing an affirmation and giving evidence in Court as a factual witness.  Indeed, he was subject to cross examination by F’s Counsel in the same way as any other witnesses of fact.  His evidence on the teeth staining issue, in my view, involves everyone’s day to day experience rather than any expertise from his professional knowledge.  The mere fact that he is a doctor by profession does not necessarily mean everything he said in Court would fall within the scope of giving ‘expert’ evidence.  Say, for a day to day example, a person’s teeth was stained after taking fruit juice such as grapes or cherries, whoever saw such stained teeth may well in a position to say the teeth stain might be caused by the fruit juice. Such statement would not become a piece of ‘expert’ evidence simply it was spelt out by a doctor.  Moreover, whether M had consulted Dr. Cheng on N’s stained teeth is a factual issue which I am entitled to believe or not believe Dr. Cheng as to whether it did happen.  There is again no question of ‘expert’ evidence.  Dr. Cheng impressed me as a reliable witness.  I accept his factual statements to be true and accurate.  Accordingly, F’s allegation of the stained teeth issue not being attended to or followed by the mother, in my judgment, is unfounded and unsubstantiated for want of supporting evidence on such allegation and also negated by the evidence of Dr. Cheng whom I find credible.

88.  Regarding those photographs (under exhibit no. “CCMJ-88”) depicting F assisted N in brushing teeth coupled with F’s description of the scene, say, for example “12 September 2011 - Happy Brushing” and those photographs (under exhibit no. “CCMJ-7-23”) also with F’s description of the scene, say, for example “These photos were taken prior to the cleansing and brushing done by father” , these are all self serving by nature which I attach only very little weight.  

89.  M agreed and accepted the child had stained teeth.  However, she denied not attending to such issue.  She did consult N’s regular attending paediatrician Dr. Cheng Chun Fai on such issue.  Dr. Cheng also confirmed such consultation did occur.   

Antibiotics and constipation problems

90.  This is one of the other major complaints by F.  F referred to the bottles of medicine given to him by M on his access days.  Checking against the medical bills and the quantity of medicine remained in the bottles, he suspected that either N was not given medication by M when sick or that it was M’s trick adopted simply to deprive his right of access by saying that N was sick (see paragraphs 195 to 196 of F’s 5^th Affirmation).  It was also F’s major concern that N was given antibiotics either unnecessarily or improperly.  Photographs showing bottles of medicine were then produced (see exhibit no.“CCMJ-49”, “CCMJ-50”, “CCMJ-100”, “CCMJ-101”).  At one stage F doubted Dr. Cheng’s stance not being neutral and also upon his prescription of antibiotics as ‘stand by’ medicine (see paragraphs 3 to 4 of F’s 7^th Affirmation).  F  produced his witness Dr. Leung’s medical certificate and bottles of multi-vitamins (as exhibit “CCMJ7-1”) to show that N was not sick on 3 November 2011 and required no medication. 

91.  F referred to N’s constipation problem in paragraphs 199 and 201 of his 5^th Affirmation.  The issue as to suitability of M giving N elderberry juice was canvassed at paragraphs 202 and 203 of the 5th Affirmation.  Suffice to say is that F was discontent with the level of care provided by M to N. 

92.  Dr. Cheng both in his Affirmation and oral testimony gave a detailed account of why and how antibiotics were prescribed for N.  He felt strongly to the criticisms levelled against him by F as to any ‘improper’ antibiotics prescription.  I find it is unfair to Dr. Cheng that  F, not being a medical practitioner by profession and in the absence of any cogent, compelling and contemporaneous medical evidence, to comment on Dr. Cheng’s professional judgment and diagnosis leading to the prescription (including antibiotics) given to N.   I am prepared to take judicial notice that medical opinion does vary within acceptable parameters which may lead to prescriptions on a particular treatment not being identical between doctors.  I am also prepared to take judicial notice that it is not uncommon for prescribed medication (including antibiotics) to be ‘put on hold’ for a short while to wait and see how the symptoms develop.   

93.  M’s evidence in reply to F’s complaint about use of  antibiotics or medication is that she simply followed what Dr. Cheng had advised her to do.  There is no conflicting evidence from F to show that M had not followed Dr. Cheng’s advice given as to N’s prescription, including the use of antibiotics.  I do not find those photographs on medicine bottles with whatever quantity of medication left over as evidence of M not following doctor’s directions.  It is plainly unfair and improper to draw such inference from the quantity of medication left as evidence of fact that N had not been given proper medication when needed or any improper use of medication as is now alleged by F against M.  That being the case, it might be the reason why F’s challenge falls principally upon Dr. Cheng on his prescription and use of antibiotics as opposed to the mother for not following doctor’s advice on usage.  Dr. Leung’s report does not assist F’s case on this issue.  Dr. Leung was, in my view, simply providing his views and opinions as to accepted practice on prescriptions and not any further than that.  Dr. Leung is not the treating doctor on those occasions when N needed medication.  In my judgment, F’s complaint on improper or excessive use of medication and antibiotics must fail.

94.  There are produced as exhibit “CCMJ-94” photographs of stool in diapers of N; photographs of N which F alleged that N had suffered from nausea, weakness and sign of dehydration; series of email exchanged between F and M on cause of N’s constipation linked with the consumption of elderberry juice.  There are also produced as exhibits “CCMJ-95”, “CCMJ-96” and “CCMJ-97” another set of emails exchanged between F and M covering various topics including antibiotics and constipation issues. 

95.  Dr. Leung in his report only mentioned health claims of elderberry juice is still largely non-evidence based at the moment.  There were individual reports of poisoning from wild elderberry juice on the contrary.  The decision to take should be very careful and generally nutrients and trace materials obtained from a balanced diet should be emphasized rather than nutritional supplements.  In my decision, Dr. Leung’s report in relation to the elderberry juice also does not assist F’s case on this issue.  In any event, elderberry juice was ceased to be given to N by M in order to avoid further confrontation rather than acceptance of F’s complaint.

96.  In my decision, F’s complaint about N’s constipation, even if properly raised and the cause of it justified by evidence (which I made no such finding), could hardly substantiate any claim of insufficient and improper care of M to the level or extent that the M should not be a  suitable custodian parent.  In fact, it is my finding that F is unable to prove, on balance of probabilities, that N’s constipation was caused solely by the consumption of elderberry juice.  Thus, I find F’s complaint on the issue of elderberry juice unfounded and unsubstantiated.

Bow legs

97.  It is F’s case that around May 2010 he noticed N had “bow legs”.  This tied up with F’s complaint against M giving N to wear unfit and improper shoes.  It was also linked to the F’s concern that N is walking tip-toe and sometimes without maintaining a proper gait.  F also noticed N had poor foot arches and bent knees.

98.  There is produced as exhibit no. “CCMJ-90” a report prepared by Essence Rehabilitation Centre headed “Physiotherapist Report” prepared by registered physiotherapist Mr. Lam Chi Shing, Stanley (“Dr. Stanley Lam”).  This report consists of 31 pages including a number of photographs on N’s legs.  There are also produced as exhibit no. “CCMJ-91” a series of photographs with description from F as to different exercises given by him to the child N as recommended by Dr. Stanley Lam.  F also produced as exhibit no. “CCMJ-92” various photographs of shoes given by M to N in August and September 2011 together with another series of emails exchanged between the parties on this issue.  Same as in other emails between the parties, it can be seen that they were nowhere close on whether N suffered from the alleged ‘bow legs’. 

99.  M had consulted Dr. Cheng on the issue of ‘bow legs’.  She was advised by Dr. Cheng that N was not suffering from ‘bow legs’.  As to the complaint of giving N over-sized shoes, M denied.  She testified the shoes in question were not over-sized.  In fact, a pair of which was purchased in one of the reputable chained stores by the name ‘Dr. Kong’ specialising in children’s footwear. 

100.  I have a few observations.

101.  First, same as in the complaint of ‘stained teeth’ whereby a report by Dr. Wor Lam was produced without calling the maker, the registered physiotherapist Dr. Stanley Lam was also not called to testify as an expert witness or otherwise.  Therefore, the contents of both reports of Dr. Wor Lam and Dr. Stanley Lam cannot be accepted (also upon other procedural grounds I set out below) without the makers available for examination.  The Court cannot simply accept the contents of these reports at their face value as evidence of fact. 

102.  Practice Direction 15.12 Part G paragraph 9(6) expressly refers to Order 38, Part IV – Expert Evidence, applicable in family cases.  F who has all been legally represented throughout the entire proceedings from the very beginning and with Counsel assisting, has not at any stage applied for Court’s direction on adducing Dr. Wor Lam’s and Dr. Stanley Lam’s reports as expert evidence.  This is required under Order 38 rule 36 of the Rules of the District Court unless all parties agree on such production.  These 2 reports merely came in as exhibits to F’s Affirmation. Order 38 rule 36 provides :

“(1) Except with the leave of the Court or where all parties agree, no

expert evidence may be adduced at the trial or hearing of any

cause or matter unless the party seeking to adduce the evidence –

(a) has applied to the Court to determine whether a direction should be given under rule 37 or 41 (whichever is appropriate) and has complied with any direction given on the application.

(b) (repealed)

(2)  Nothing in paragraph (1) shall apply to evidence which is permitted to be given by affidavit or shall affect the enforcement under any other provision of these Rules (except of Order 45,   rule 5) of a direction given under this Part of this Order.”    

103.  Moreover, under Part K of Practice Direction 15.12 on Expert Evidence, it provides :

“20. For the avoidance of doubt, those provisions in Order 38 of the RHC/RDC, in relation to “Expert Evidence” and any Practice Directions issued in connection therewith, shall, unless the Court orders otherwise, apply with necessary modifications, in defended/contested Matrimonial Proceedings/Family Proceeds when an expert needs to be instructed, subject to the directions hereinafter set out in this part.

21. In Matrimonial Proceedings/Family Proceedings relating to children, which are held in chambers and not open to public,

(1) the Court’s permission is required to instruct an expert……..”

104.  On the question of expert directions, Mr. Edward Chan, solicitor acting for M, frankly admitted to me during the course of trial that he personally was not aware of the need for expert directions in family cases.   Therefore, it is only fair to say that Mr. Edward Chan would not be in any position to agree or not agree on the reports by Dr. Wor Lam and Dr. Stanley Lam to be adduced as evidence without expert directions being obtained in advance from the Court.   

105.  Even on the basis that there was no objection from Mr. Edward Chan on both of these reports to be produced, I decided not to accept them as expert evidence for want of compliance with Order 38 rule 37A and rule 37C of the Rules of the District Court, which provides :

“37A. Expert report to be verified by statement of truth (O.38, r 37A)

An expert report disclosed under these Rules must be verified by a statement of truth in accordance with Order 41A.

37B. ………..

37C. Expert witness’s declaration of duty to Court (O.38, r37C)

(1) An expert report disclosed under these Rules is not admissible in evidence unless the report contains a declaration by the expert witness that –

(a) he has read the code of conduct set out in Appendix E and agrees to be bound by it;

(b) he understands his duty to the Court; and

(c) he has complied with and will continue to comply with that duty.

106.  Having said so, I have also considered from the perspective whether these reports could be considered as “non expert reports’ and thus the lack of expert directions would not affect their admissibility.  However, the fact remains is that since the makers Dr. Wor Lam and Dr. Stanley Lam were not available for examination as to their reports, these if I may so called them ‘non expert reports’ attract no evidential value even if they can be admitted as evidence.  This is particularly the case when it was F who had, for the purpose of collating evidence for this litigation, unilaterally arranged and paid for all these reports.  I must add that the situation of Dr. Cheng is different from Dr. Wor Lam and Dr. Stanley Lam.  Dr. Cheng had filed an Affirmation and testified as a witness of fact.  The same simply does not happen with Dr. Wor Lam and Dr. Stanley Lam.

107.  Dr. Cheng in his Affirmation and oral testimony disagreed N had suffered from any ‘bow legs’ which F had now so alleged.  Dr. Cheng has given his views as to how to diagnose a person whether he is suffering from ‘bow legs’.  The physical observation has to be taken on a straight frontal view with both knees touching each other on a horizontal perspective.  He also demonstrated in Court as to the posture for such an observation.  He highlighted to me that those photographs of N’s legs in Dr. Stanley Lam’s reports all of which were taken from a side view of the leg posture to be methodically incorrect.  Although I am convinced by Dr. Cheng’s professional knowledge, I must say that this part of Dr. Cheng’s evidence, different from his evidence on stained teeth, related to his professional expertise.  Such evidence should fall within the ambit of ‘expert’ evidence which could only be admissible upon compliance with the relevant procedure including expert directions obtained in advance.  Mr. Edward Chan for M had already explained to me why those pre-requisites have not been met.  Accordingly, I must say that this part of Dr. Cheng’s evidence is inadmissible.  However, I find F is not in any better position because the evidence he principally relied upon for such issue is the report of Dr. Stanley Lam which I have already found also inadmissible, whether as expert evidence or otherwise (see paragraphs 101, 105 and 106 of this Judgment).  Since the issue of “bow legs” was raised by F, he has to prove it by evidence on a civil standard. 

108.  It is worth to note that even F’s witness Dr. Leung, in his medical findings on N’s physical condition, there were no findings of ‘bow legs’ except that N has ‘’knock knee’ associated with genu valgum.  At paragraphs 3 and 4 of Dr. Leung’s conclusion (at page 1679 of the Trial Bundle), he said :-

“3. N has genuine Genu Valgum, knee hyperextension and increased lumbar lordosis in excess of normal to her age. She might benefit from proper physiotherapy. To determine the need for therapy and monitoring of the deformity, I would recommend a detail assessment by an Orthopaedic Surgeon specialised in

Paediatric sub-specialty.

4. The Genu Valgum is usually an inborn deformity with some physiological element. However, use of proper sized shoes should be encouraged. Oversized shoes will cause leg diseases and deformity in long term, adding more load to her knee hyperextension and encouraging tip toeing. Use of proper fitting shoes should not be discouraged and there is no reason to refuse fitting a child with properly sized shoes. The generally accepted recommendations are mentioned above.

109.  Having read Dr. Leung’s report on the other issues such as leg deformity, the inter-relationship between over-sized shoes and leg deformity, possible hinderance of physical development and possible detriment to psychosocial development, tip-toe walking arising from loose shoes so on and so forth, I find that Dr. Leung was not providing any solid and conclusive evidence capable of supporting F’s series of allegations against M.  This can be seen from Dr. Leung’s letter (at page 1674 of the Trial Bundle) where he said :-

“……Three other consultations on 31^st January 2012, 8^th February 2012 and 11^th February 2012 have also been conducted with F for reviewing N’s medical records, medications, photos of her previous teeth cleanliness, reports from specialists and teachers, and mother’s and other related views stated in affirmations (my emphasis)”

110.  Regarding Dr. Leung’s statement under the heading of “Leg deformity” in his report (at page 1676 of the Trial Bundle) where he said “My conclusion goes in line with their physiotherapist Mr. Lam’s Reports”, when he was obviously referring to and adopting Dr. Stanley Lam’s report. My views are that Dr. Leung could only adopt those evidence which are admissible in the first place.  Even if admissible, there is also the problem of secondary hearsay.  I have already found Dr. Stanley Lam’s report not being admissible or, even if admissible, bears no evidential value (see paragraphs 101, 105 and 106 of this Judgment).  Dr. Leung’s statement could not cure all such fundamental flaw.  My overall view on Dr. Leung’s evidence is that he was mainly stating his views and opinions as a paediatrician based on the information available and provided to him.  Dr. Leung, having set out his conclusions, he said (at page 1680 of the Trial Bundle)  :

“The above are my recommendation based upon my observation and examination of N’s general health status and F’s presentation of photos and reports from various specialists.”

111.  In the circumstances, I find F’s allegation of “bow legs” unsubstantiated for want of evidence.

Over-sized shoes and Tip Toes walking

112.  F also relied upon Dr. Stanley Lam’s report on these complaints.  Following my findings on the admissibility issue and evidential value of Dr. Stanley Lam’s report under paragraphs 101, 105 and 106 of this Judgment; also my views on Dr. Leung’s evidence under paragraphs 108 and 109 of this Judgment, there is virtually no evidence to substantiate F’s case that the shoes provided by M to N were all over-sized which had caused N to develop tip-toes walking.  For the reasons which I have already set out, I cannot accept the contents of Dr. Stanley Lam’s report at their face value as evidence of fact nor Dr. Leung’s evidence capable of assisting F’s complaint on all these issues.

113.  F at his exhibit nos. “CCMJ-98” and “CCMJ-99” produced notes of memo of Professor Albert M. Li, a paediatrician at Prince of Wales Hospital, on the physical assessment of the child N.  I find these notes of memo are of no evidential value for the same reasons I set out for Dr. Stanley Lam’s report.   

Other areas of complaints

114.  In addition to those health issues concerning stained teeth, antibiotics, constipation, bow legs, over-sized shoes and tip-toes walking, there are also complaints of M enrolling the child with ballet classes which further deteriorate N’s “bow legs”. To avoid further disputes but without any admission to such complaint, M through her lawyers had agreed to cease N’s ballet classes.  F in his 5^th Affirmation raised his concern on other areas affecting N.  This include, namely :

(a)  M’s reluctance to communicate with him over N (from paragraphs 57 to 64);  

(b)  Continuous difficult access (from paragraphs 65 to 102);

(c)  N’s education issue (from paragraphs 103 to 108);

(d)  N’s school attendance and behaviour issues (from paragraphs109 to 135);

(e)  Selection of kindergarten (from paragraphs 136 to 152);

(f)  TL Music Playgroup (from paragraphs 153 to 157);

(g)  Insufficient and Improper care to N (from paragraphs 158 to 174);

(h)  Tiredness of N (at paragraph 194);

(i)  Medical Insurance (from paragraphs 222 to 226);

(j)  M’s hostile attitude towards F (from paragraphs 228 to 236).

115.  I do not intend to go into each and every personal accusations and grievances within those paragraphs of F’s 5^th Affirmation I referred to above which form the basis of those areas of complaint.  The Court’s position on making findings, in so far as the accusations are concerned, remains the same as I have stated in paragraph 42 of this Judgment.

Video clips and photographs

116.  Regarding those video clips and photographs produced by F, I do not place any weight or give any evidential value to the contents thereof given the fact that they are all self serving and capable of being manipulated.  I believe common sense and logic dictate that only the best scene will be shown and displayed as one’s evidence. 

Social Investigation Reports

117.  I will now deal with the more important and substantive evidence of social investigation reports.

118.  There are altogether six (6) social welfare reports, all prepared in Chinese, namely:

(a)  Report dated 14/8/2010 – prepared by Miss Ma Lai Yan;

(b)  Report dated 7/10/2010 – prepared by Mr. Wong Chiu Put;

(c)  Report dated 7/10/2010 – prepared by Miss Ma Lai Yan;

(d)  Report dated 20/10/2011 – prepared by Miss Ma Lai Yan;

(e)  Report dated 15/2/2012 – prepared by Miss Ma Lai Yan;

(f)  Report dated 17/7/2012 – prepared by Miss Ma Lai Yan.

119.  Miss Ma Lai Yan (“Miss Ma”) has been the case officer since the beginning of this case.  Miss Ma has been a social welfare officer for about 17 years with around 5 years of experience in such field of investigation.  She confirmed having prepared 40 odd reports of this kind.   On the issue of custody, Miss Ma’s reports dated 14^th August 2010, 20 October 2011, 15^th February 2012 and 17^th July 2012 are of particular relevance.  The other report dated 7 October 2010 concerned question of interim access only.

120.  The other social welfare officer Mr. Wong Chiu Put’s report concerned the access for the period between August 2009 and May 2010.  His report also referred to the meeting of the parties on 19 July 2009.  For the present custody trial, I will not go into any further of Mr. Wong’s report.  As I have accepted the evidence of M’s elder brother as to the event of meeting on 19 May 2009, I find the testimony of Mr. Wong in Court not of importance since he was not present at the meeting.  Mr. Wong was only told what had happened at the meeting.

Report dated 14/8/2010

121.  This is the first report prepared on custody, care and control and access issues.  Miss Ma found the parties are caring and loving parents, each had their own advantages in their respective cases.  However, in her conclusion, she noted parties held different views on caring issues over N.  Both parties acknowledge that they would be attending parent counselling hoping to minimise any conflicts over caring issues.  On such basis and accordingly, Miss Ma concluded the parties could be granted joint custody of N; M be given the care and control with reasonable access to F.  She also provided a defined time for F to have access.   From paragraphs 25 to 29, she said :-

“25. 調查資料顯示，x先生和x女士已就管養權取得共識，他們均同意共同管養xx，雖然他們在照顧xx的事宜上亦有意見分歧的時候，但他們承諾為著女兒的福祉，會多加溝通。同時，x先生亦會繼續接受本署九龍城綜合家庭服務中心社工黄朝勃先生的輔導服務。同時，x先生和x女士亦會於香港明愛或香港公教婚姻輔導會等機構尋求輔導服務，以改善其溝通問題，望能於共同管養及管教女兒的事宜上多合作，少磨擦。

26. 根據所得資料，x先生非常愛護女兒，亦十分關心她的成長。對女兒的各種需要均無微不至，在生活及學習上亦提供經濟支持，盡力為女兒作好榜樣。另外，x女士亦非常愛護女兒，她由女兒出生至今，一直親自照顧女兒，提供關愛。由二零零九年五月離家後獨力照顧女兒，xx繼續快樂成長為一活潑的女孩。根據觀察，女兒對x女士的情緒依附已表明她對女兒提供的關心及照顧，x女士亦承諾會專心照顧女兒，讓她愉快成長。

27. 另一方面，若xx繼續與母親同住，可以令她得到母親一貫的照顧，這對幼兒的發展，有一定益處。同時，x女士亦認同女兒需與父親多接觸，才可感受到父親的關心，除建立融洽的親子關係外，亦可維繋父女感情。

28. 本人考慮到過往照顧xx的狀況、各方對管養和照顧她的意願，以及xx的發展需要，認為xx繼續由母親照顧應為較佳的安排。

29. 現基於以上原因，現建議法庭考慮 :

(一) 呈請人xxx先生和答辯人xxx女士可有當事兒童xxx的共同管養權；

(二) 當事兒童xxx的照顧及控制權判給答辯人xxx女士；x先生則擁有合理的探視權。

(三) 呈請人xxx先生亦可享有當事兒童xxx的探視時間為每週星期二及星期四下午七時至八時三十分，星期六早上十時三十分至下午六時。”

122.  It can be seen that whilst Miss Ma noted the parties’ discrepancies over caring issues but still recommended joint custody.  This was obviously premised upon the parties’ would communicate with each other to work out solutions with N’s best interests in mind. 

123.  In making the recommendation, I noted Miss Ma had taken into account the fact that M had been the sole and primary care giver of N since birth, N’s emotion and attachment to M wholly reflected the degree of care provided by M.  At the time of this report, N was about 1 year and 9 months old.

Report dated 20/10/2011

124.  This is the report prepared in anticipation of the November trial.  There has been a lapse of 14 months since the first report on custody and related issues.  I noticed that on the day before (i.e. on 19/10/2011) F had filed his 5^th Affirmation (75 pages of 254 paragraphs and 82 exhibits) which should have been filed 11 months ago as ordered by the Court.  As I stated in paragraph 29 of this Judgment, the antagonism between the parties had escalated. 

125.  Miss Ma noted the parties were unable to build up any trust or communicate amicably to decide upon matters to the best interests of N.  She also noticed that the child N had displayed resistance to F and M whilst the other parent was present during access.  In her view, this demonstrated the conflicts between the parents had already caused a negative effect on N.  Accordingly, she was not in any position to provide further recommendation on custody before getting to know N’s psychological condition and needs.  She then suggested a clinical psychologist report be first obtained.

126.  At paragraph 22 of this report, Miss Ma said :-

“然而，縱使父母雙方均非常愛護女兒，他們未能就如何處理女兒的各樣事宜作出協調。從過往的觀察中，xx雖然與母親相處親密愉快，在探視過程中與父親相處亦輕鬆自然，但考慮到xx與父親接觸時表達對母親的抗拒情緒反應，以及於母親在埸時表達對父親的抗拒，已表明父母的爭拗及訴訟為女兒帶來負面影响。因此，在作出建議進一步的管養權和探視安排前，先了解xx的心理狀況及需要，是必需及重要的。本人建議法庭頒令押後聆訉，期間安排社會福利署的臨床心理學家為xx進行全面的心理評 估，以便為xx的最大利益作進一步建議 。”

127.  The November trial was then vacated and re-fixed to 29 February 2012.  There are directions for updated social investigation report to be ready 14 days before the re-scheduled trial dates.  Accordingly, Miss Ma produced her report dated 15 February 2012.

Report dated 15/2/2012

128.  At the time of this report, the clinical psychological report had not yet been ready.  Therefore, Miss Ma was yet unable to provide her updated recommendation without the psychological report be available to her.  She maintained her views of the importance of knowing N’s psychological condition before she was in a position to make any recommendation on custody and related issues.  She said at paragraph 15 of this report the following :-

“x女士與x先生均非常愛護女兒，亦十分關心她的成長。可惜，他們繼續就xx的各樣照顧安排各持己見。為了達至xx的最大利益，他們應學習摒棄前嫌，以互諒互讓的態度處理女兒的大小事情。因此，在建議進一步的管養權和探視安排前，宜先了解xx的心理狀況及需要，身體狀況及所需治療，好讓父母檢討自己的言行，為女兒的福祉合作。同時，社會福利署的臨床心理學家將會為xx進行全面的心理評估，並於2012年3月28日或之前提交有關的心理評估報告，以便為xx的最大利益作進一步建議。”

Report dated 17/7/2012

129.  This is the latest report produced.  The fact that this report was only submitted 7 days before the resumed trial on 24 July 2012 was because at one stage it was thought the parties had ‘settled’ the case. 

130.  Having considered the clinical psychological report of Miss Janet Tso and the overall situation, Miss Ma opined that it would be a better arrangement if N is to be under the continual care and control of M but full consideration ought to be given to F’s requested access.   At paragraph 22 of this report, she said :

“x女士與x先生分離後，雙方關係一直不理想。他們的溝通亦有困難，故此，他們均認為在缺乏互信下難以共同擁有女兒的管養權。雖然如此，但他們承諾為著女兒的福祉，接受輔導服務，望能於共同管養及管教女兒的事宜上多協調，並改善他們之間的溝通問題。本人考慮到父母均愛護女兒，故認為他們可透過輔導，加强父母就管養女兒的事宜溝通及合作。此外，考慮過往xx的照顧狀況及臨床心理學家曹姑娘的評估，本人認為xx繼續由母親照顧應為較佳的安排，但同時亦建議應對父親提出的探視要求作充份考慮及安排。”

131.  Miss Ma confirmed the contents of her report are accurate.  In her view, both F and M are loving parents.  She foresee the possibility of joint custody if the parties are able to attend parents counselling which at one stage seem to have happened. However, Miss Ma said parent counselling very much depend upon the parents’ motivation.  She restated her findings that it would be better for N to be under M’s continual care.

132.  I noticed that Miss Ma, in her latest report and oral testimonies, had not excluded the possibility of a joint custody order.  This is understandable as she had repeatedly emphasised in all her reports that both parties are loving parents.  In conclusion, Miss Ma confirmed her views that it would be better for N to be under the continual care and control of M.  The issue thus remaining is whether, on the facts and evidence available, including the evidence of Miss Ma and the clinical psychologist Miss Janet Tso (whose evidence I will deal with later in this Judgment) whether the custody order should be a ‘joint’ one for both parties’ or a ‘sole’ one for a party.  If, on the latter, who should then be given the sole custody of N ?  What kind of access order should be made ?

Clinical Psychological Report

133.  Miss Janet Tso (“Miss Tso”) in her oral testimony adopted the contents of her report dated 26 March 2012 as her evidence in chief.  Her report sets out the evaluation process in great detail which rendered the report a very useful piece of evidence for this Court. The process she adopted in the assessment process is a so-called ‘multi-source, multi-method approach’.

134.  Miss Tso gave a very detail explanation of the tests conducted and the findings arrived at which are set out in the following paragraphs in her report.  I find them highly informative and extremely useful :

“4. XX relationship with each parent

4.1 ………In the Family Relation Test, the child’s responses indicated that her involvement with her mother was mainly positive and satisfying. She perceived that her mother loved her and made her feel happy. Although she perceived her father was nice to her, most of her feelings towards her father were negative. She perceived that her father was naughty and bad. When the interviewer asked her the reason, the child said that her father scolded her and made her cry.

4.2 With further exploration about XX’s relationship with her family members, her responses showed strong attachment to her mother. XX chose her mother to wake her up, give breakfast to her, help her get dressed, play, bath, bring her to school, tell story, as well as sleep with her. She would also choose to tell her mother when she was upset, scare and having trouble. The child’s responses indicate that she is relatively emotionally more involved with her mother and wants her mother to render basic physical care to her.

4.3 In the drawing task, the child was asked to draw herself on a picture on which figures representing her mother, father or both were printed on the picture. On the picture that the mother figure was printed, she drew her self figure beside the mother figure. She described that they were playing Lego and both of them were happy. On the picture that the father figure was printed, she put her self figure beside the father figure. She told the interviewer that her father was unhappy and he cried in the room. XX also said that she was unhappy because she wanted her mother. On the third picture, the child was asked to draw her self figure on the picture with two printed figures representing her parents respectively. She put her self figure in the middle and added tears on her self figure. According to her, she was crying because she wanted her mother. Then she expressed that her father was angry when she wanted her mother. On the fourth picture, the child was asked to draw her family. In her family drawing, she drew her mother in details. When the interviewer asked her why her father was not included in the drawing, she replied that he was working. As shown in the test data and drawings, XX’s relationship with her mother is closer than her father.

5. Parenting Capacities

5.5 ……..The data obtained indicated that F showed more sensitivity to the critical issues needed to be considered in child handling when compared with M. He could also provide more adequate solutions to address issues in childcare situation when compared with M. Under such circumstances, he might better guide the child and promote the child’s development. However, he might sometimes over-interpret the child’s feeling. As for M, she appeared to be better in handling younger child’s problem. She would consider the child’s understanding and showed more awareness about how to communicate with a young child.

5.12 Both parents could communicate a sense of warmth and acceptance to the child. They demonstrated nurturance towards the child. The mother provided more opportunities for the child to choose what she liked to play which could foster her independence. In the teaching task, xx followed the parents’ instructions. Both parents provided assistance when the child encountered difficulties. In addition, both parents assisted the child in focusing on the task when she was distracted. Both parents were able to make clear instructions to the child. Comparatively, the child could complete the task more tidily under the supervision of her mother.”

135.  Miss Tso saw fit to include in her report N’s relationship with the extended family members of F and M.  Under the heading ‘Collateral Information’ where she said :-

“6.1 …….In the waiting area, xx would initiate to hold the hand of her maternal grandmother, Mrs. X and domestic helper, xx to the interviewing room. From observation, the child had close interactions with her maternal grandmother. xx was cheerful when playing with her grandmother and the atmosphere was harmonious. The child also had positive responses towards the domestic helper…….

6.2 Since xx refused to enter the interviewing room with her paternal aunt, A, F’s friend, Miss C and the domestic helper, NR. F need to intervene. After entering the interviewing room, NR initiated to play with xx.  However, the child said that she did not want NR…….”

136.  Having conducted the assessment, Miss Tso expressed her concern over N which can be seen from the following paragraphs :

“7.1 ……..Reviewing the family background, there has been an

increase in tension between the parents. Distrust between the parents is indicated. Given the tense family dynamics, the child may feel trapped in between her parents and be pressurized. From the data collected, xx is happy with each of her parent. It may explain the reason for her negative emotional responses when she has to leave her loving parent either from the father’s home or the mother’s home. However, xx is anxious and tense in the presence of both parents. In the presence of both parents, the child appeared to be clining to her mother and rejects to be with her father. As xx is emotionally closer with her mother, she may want to show loyalty to her mother.

7.2 Although both parents know that it will be beneficial for the child if they can cooperate, both of them claim that the other parent is uncooperative. Neither parent seems to have a very good understanding of his or her own role in the problems between them and the way they tend to escalate their hostilities is at the expense of the child. They get locked into power and control struggles and stimulate each other into overreactions. …….Regardless of the underlying reason of tapping such video clips, the parents should understand that they are doing something harmful for a young child….……. I would like to stress that if the parents’ hostilities continue to escalate, their child will be the one to suffer most at the end. As the child continues to be embroiled in the parental conflicts, the child will be overwhelmed and her psychological well being will be at risk. The child is in need to be pulled out of the middle between her parents.

7.3 Regarding the concern of the father about the physical health of the child, the leg problem and the dental issue, various medical reports were reviewed. However, I concern about how the mother responds when receiving the professional opinions. From the data collected, M has consulted with various professionals including the paediatrician and dentist. Regarding the leg problem, she also took the child to the maternal and child health centre and requested the nurse to make referral to doctor but was being rejected. The mother’s responses show that she has followed-up the issues and her concern about the child is indicated.

137.  Luckily, Miss Tso concluded that N is not suffering from any emotional or behavioural problem.  She said :

“8.1 Data gathered in the present assessment does not indicate that xx has emotional or behavioural problem. The child is happy when she is with each parent. The present assessment also shows that the child needs both parents, to feel free and secure in their relationships as well as a stable environment. Despite the child enjoys being with each of her parent, she may have difficulty to tolerate the relationships with both parents. In the presence of both parents, xx appeared to be clinging to her mother and rejects being with her father. This reflected that the child is stressful in front of both parents. It is in my opinion that the child should stay out of her parents’ battle in order to foster healthy emotional development. It will be in the child best interest to see an end to the parental dispute.

8.2 Both parents show their concern and care to their child. The present assessment findings do not indicate that the parents have any emotional problem or behavioural symptoms which will affect their parenting ability. Neither parent is significantly stronger than the other but each has something different to offer the child. Based on the available data collected, xx enjoys with each of her parent but have a closer bonding with her mother than her father. The child is relatively emotionally more involved with her mother and wants her mother to render basic physical care to her. In the area of parenting, F demonstrates better parental knowledge than M. He has more awareness about the critical issues in childcare situations and provides more adequate solutions in handling the situations. In regards to the degree to which each parent demonstrated childcare skills, the observational data reflected M provides more opportunities for the child to make decisions which can foster her independence. In addition, the child’s learning task was completed more tidily under the supervision of her mother than the father. In my opinion, each parent has his or her own strengths and limitations. In this case, equal shared parenting is an advantage for the child as well as her parents. However, in view of the conflicts between the parents, a choice must be made as to what is in the child’s best interest…….

8.3 From the data gathered, the child is living with her mother with no serious problem. Given the child’s emotional closeness to her mother and the continuity as the primary attachment parent, I suggest M be given greater consideration regarding the child’s care and control. At the same time, regular access by F is highly recommended because the child also needs to maintain good relationship with her father.

8.4 For the developmental needs of the child, xx needs healthy attachment with each of her parents and to be relatively free of anxiety. No matter who obtained the care and control, the other parent should maintain regular and frequent visit to the child in order to facilitate the child’s adjustment. It will be beneficial if both parents can share the activities and daily life of the child. It will also be important if both parents can have better communication. If the parents find the need, a neutral person can facilitate the communication between the parents in terms of the child’s needs and difficulties. If the parents can genuinely cooperate and foster the relationship of the child with other parent, the child can get the message that her parents are cooperating. This helps to free the child from choosing their parents and the tense dynamics between her parents.”

The issue of ‘Care and Control’

138.  It is clear from the above that both Miss Wong and Miss Tso arrived at the same conclusion that M should continue to have the care and control of N.  They also shared the common views that it is important for F to have regular and frequent access to N. 

139.  Before finally deciding upon the issue of care and control, I believe it may be useful to go through the ‘check list’ adopted from the English Children Act 1989 which was referred to by the Law Reform Commission in Hong Kong in its report in March 2005, which may shed some light as to where N’s best interest lies.

140.  Considering N was only 3 years and 3 months of age at the time of trial in February this year and the particular facts of this case, those items under the ‘check list’ which are of relevance are :

-    the likely effect on the child of any change in circumstances;

-    the child’s age, maturity, social and cultural background and any othercharacteristics which the court considers relevant;

-    any harm which the child has suffered or is at risk of suffering;

141.  M has been the primary care giver for N since birth.  Subsequent to the moving out from F when N was only about 6 months old, M continues with her role as the mother and primary care giver and N is now approaching the age of 4.  Here comes in 2 questions, namely, is there the need to maintain the ‘status quo’ and the question of suitability of caring ‘young child’.  

142.  In so far as the question of status quo is concerned, Hon Rogers VP, in the case of L v C (CACV No.333 of 2007) had said :

“The importance of status quo would vary from case to case. In a case such as this it is merely some confirmation that the existing circumstances are not adversely affecting him. In this case there is no reason to suspect that if the mother’s proposals were to be accepted any change would be adverse of itself and hence the significance of the status quo is of very small importance.”

143.  In the L v. C case, the Court of Appeal overturned a custody order of a child of 5 years of age granted to the father on the basis of the statuo quo being working satisfactorily.  The child was then returned to the mother.  In so far as the role of the natural parent being the primary care giver is concerned, his Lordship said :

“What seems to me to have been overlooked in this case was the importance of one of the natural parents being the primary carer of the child. In this case it is quite clear that, albeit both parents work and have similar working patterns, that if the father were to be given custody, the paternal aunt would fulfil that role. Without in any way suggesting that the paternal aunt does not devote full care and attention to the child, the importance of the natural parent being the primary carer must not be lost sight of. Coupled with that if the parent proposed to be the primary carer is the mother, this too is highly significant because of the natural role of the mother in the rearing of very young children. In this respect I would add that the judge does not appear to have considered the role of the mother in the child’s life  in comparison to that of a paternal aunt, however devoted she may be.”  

144.  In the present case, we are dealing with a very young child N who has been taken care of since birth by the non-working natural mother M.  F has all along been a working father.  He was employed as the Director of Business Department in a listed company starting on 3 March 2008.  The contractual monthly salary at commencement of employment was HK$100,000.  F had indicated to Miss Ma that if he was granted custody of N, he would resign to look after N on a full time basis (see paragraph 10 of Miss Ma’s report dated 15 February 2012).  I have reservation about F’s resignation plan; in particular, F had deposed in his Affirmation that his family members are ready, willing and able to assist him in taking care of N.

145.  On the assumption that F did resign to take care of N, with all things being equal and also putting aside the status quo factor, there were English and Hong Kong cases holding the views that a child of tender years should be with the mother. 

146.  In H v. H [1969] 1 All ER 262 where Salmon LJ at page 262 said :

“On the whole the best place for a boy of 3 ¾ is with his mother; is there anything to displace that human view ? I entirely agree with that approach. I think there is no doubt – and this is not a proposition of law – that from the point of view of common sense and ordinary humanity, all things being equal, the best place for any small child is with its mother.”  

147.  In the Hong Kong Court of Appeal case of R v. Y (CACV No.193 of 2010), a case involving an 8-year old girl and a 6-year old boy, where Hon Rogers VP said :

“This court was reminded of a large number of decisions which have stressed the importance of the mother in the life of a young child. In this respect I would simply refer to the case of Brixey v. Lynas [1996] 2 FLR 499. It is unnecessary to cite from the speech of Lord Jauncey; it is sufficient to say that what he said there was clearly based on practical experience and the realities of life and is not a matter of prejudice or discrimination.”

148.  For the sake of completeness, I would recite the words of Lord Jauncey in the Brixey case at page 504 :

“…..To determine what is in the best interests of a very young child regard must necessarily be had to its relationship with the mother with whom it is living. To suggest that any recognition of the normal mother’s natural ability to look after a very young child amounts to sexual discrimination is absurd. Nature has endowed men and women with very different attributes and it so happens that mothers are generally better fitted than fathers to provide for the needs of very young children. This is no more discriminatory than the fact that only women can give birth. Every case must be considered on its own facts. There will be cases where the mother is wholly unfitted to care for even the youngest child and the court will proceed accordingly. There will be other cases where the child is older and the matter is finely balanced. However, here the child is very young, has never been separated from its mother or half-sister for any significant length of time and it is not suggested that the mother is unsuitable to care for her. In that situation the advantage of continued care with the mother without disturbance of the status quo must be an important factor to be  taken into account.” 

149.  His Lordship went further to summarise the approach to be adopted by the Court :

“…..To summarise, the advantage to a very child of being with its mother is a consideration which must be taken into account in deciding where lie its best interests in custody proceedings in which the mother is involved. It is neither a presumption nor a principle but rather recognition of a widely held belief based on practical experience and the workings of nature. Its importance will vary according to the age of the child and to the other circumstances of each individual case such as whether the child has been living with or apart from the mother and whether she is or is not capable of providing proper care. Circumstances may be such that it has no importance at all. Furthermore it will always yield to other competing advantages which more efficiently promote the welfare of the child. However, where a very young child has been with its mother since birth and there is no criticism of her ability to care for the child only the strongest competing advantages are likely to prevail.  Such is not the case.”

150.  As I have found against F on all his criticisms against M as to her suitability and ability as a custodian parent, coupled with the investigation and recommendation of the social welfare officer Miss Ma and clinical psychologist Miss Tso which I accept, I believe the ‘check list’ factor as to any likely effect on any change of circumstances must be in favour of M.  M has been looking after N full time since N’s birth.  The child’s age and maturity factor would also favour M in light of those cases and authorities which I have referred to above. Regarding the factor as to any harm the child has suffered or is at risk of suffering, clinical psychologist Miss Tso found N has already been embroiled in the parental conflicts, her psychological well being may be at risk and she ought to be pulled out of the middle between the parents.  Taking this into account, I am convinced that it is in N’s best interests to be under the continual care and control of M.  And I will so order accordingly.

‘Joint’ or ‘Sole’ custody ?

151.  It now remains the question of custody.  Two cases are of particular importance which I will now refer to, namely, Y v. P (CACV No.140/2009) and PD v. KWW (CACV No.188/2009).

152.  In the case of Y v. P, Hon Rogers VP said :

“21………The Recorder’s judgment usefully sets out the law relating to custody. As the Recorder pointed out in paragraph 24, the first consideration as to whether to grant joint custody to both parents or sole custody must be the welfare of the child. The Recorder went on to state that whether or not a joint custody order is workable depends very much on whether the parents can co-operate. The Recorder continued :

‘(3) A joint custody order may in appropriate cases be made for the purpose of encouraging parents to overcome their differences and co-operate for the benefit of their children. Joint custody in such circumstances can serve the purpose of recognizing the role of both parents in the child’s upbringing. However, if it is clear that a joint custody is not workable, it seems unlikely that the Court will nevertheless make such a joint custody order solely for the purpose of encouraging the parties to overcome their differences or to recognize the continuing role of the parties. As stated above, a joint custody order which is unlikely to be workable cannot be in the best interests of the children as the adverse consequences will far outweigh the benefits that it may bring.’

  …………..

  …………..

27.   It should be remembered that even where there is a joint custody order, it would, inevitably, fall to one of the parents to decide minor everyday matters.  The court is able to make a joint custody order when it is satisfied that the parties would co-operate.  Co-operation does not mean that the parties are expected to be of the same mind or opinion about everything, but it does entail the parties being able to leave decisions on less important matters to the other party.  If that were not the case the joint custody would be unworkable.  Each party has to be able to trust the other party to the extent of leaving such decisions to the other party……..”

153.  In the later case of PD v. KWW, Hon Hartman JA (as he then was) analysed the difference between joint custody and sole custody and found that the difference is a fine one. His Lordship then went on to consider the proper approach to be adopted when considering joint custody.  Quoting the relevant passages in His Lordship’s judgment :-

“39. While therefore a parent who is given sole custody is given the authority, in the event of disagreement with the non-custodial parent, to make the final decision, it should only be made after due consultation and, if the final decision that is made is considered by the non-custodial parent to be inimical to the child’s best interests, the court may be called upon to determine the matter.

40. Invariably, therefore, the giving of sole custody to one parent does no more than recognize that, in the circumstances of the breakdown of the marriage, the best interests of the child are secured by giving to that parent the authority, if necessary, to make a final decision concerning matters of consequence in the upbringing of the child but only after the other parent’s views have been given full and rational consideration. In summary, an order of sole custody does no more than add a qualification to the otherwise joint endeavour of both parents in raising their child, that qualification being that the final decision will rest with one parent.

41. For this reason it is often said that there is a thin line between sole custody and joint custody.

…………

…………

47. It is widely recognized today that the long-term best interests of a child are invariable best protected if, despite the breakdown of the marital union, both parents are able to continue to play an equal role in making the important decisions that will determine the child’s upbringing.

…………

Joint Custody : the proper approach

…………

54. In the result, in the best interests of the child, the fact that, as a result of the breakdown of the marriage, relations between the parents are strained is not of itself a reason to refuse to make a joint order of custody. Nor is the fact that the parent to be given care and control does not agree. Such orders look to the future. They will govern a limited area of exchange between the parents, albeit one of the greatest importance.

55. Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognising that, as difficult as it may be for them, this process of co-operation is in the best interests of the child.

56. In determining this issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to co-operate with each concerning matters of importance in the upbringing of the child.

57. At all times, of course, the welfare of the child remains the first and paramount consideration…………..

154.  It is unfortunate to see F and M are so sharply divided on virtually all matters concerning N.  Considering the facts of this case, I am also convinced that both of them are loving parents and each of them has their own advantages.  But for their sharp differences, lack of trust and difficulty in communication, I would have no hesitation that a joint custody order must be the one and only one choice. Given the fact that both of them conceded the problems in existence between them at the present moment and therefore joint custody simply does not work, I was left with no other choice for the time being except to make a sole custody order.  The parties’ awareness of a joint custody order simply does not work was also recorded in paragraph 22 of Miss Ma’s latest report dated 17 July 2012 as follows :-

“x女士與x先生分離後，雙方關係一直不理想。他們的溝通亦有困難，故此，他們均認為在缺乏互信下難以共同擁有女兒的管養權。”

155.  Having considered all the circumstances and the reports and recommendations of both Miss Ma and Miss Tso,  I believe the balance tips in favour of M if a sole custody order is to be granted.

156.  I fully agree with Miss Tso that given the fact that the child’s emotional closeness to her mother and the continuity as the primary attachment parent, greater consideration should be given to the mother regarding the child’s care and control.  In my view, to give the legal custodial right to the parent who was entrusted with the child’s care and control facilitates the upbringing of the child.  However, in a situation where both parents do not trust each other, if the custodial right is given to one parent with the care and control given to the other parent, that simply does not work.

157.  In my Judgment, I will grant a sole custody order with care and control to M in respect of N.

Father’s access

158.  Both Miss Ma and Miss Tso emphasized the importance of and highly recommended regular access be given to F because N needs to maintain good relationship with F.  This is in N’s best interests.  Miss Ma in her latest report even recommended this Court to give full consideration and arrangement for F’s requested access in the following words :-

“22. ..….. 本人認為xx繼續由母親照顧應為較佳的安排 ，但同時亦建議應對父親提出的探視要求作充份 考慮及安排。”

159.  I am prepared to adopt the recommendation of Miss Ma that general access should be given to F.  The only issue which I am concerned about is to what extent the general access is to be given and how such general access can be fruitfully exercised bearing in mind the on-going problems between F and M since separation, leaving aside any hard feelings the parties might have as a result of this piece of litigation. 

The Way Forward

160.  Given full consideration of the facts and circumstances of this case, I believe the fundamental problem lies with F and M individually rather than N physically or psychologically. The only solution which I can think of is that both parents (i.e. F and M) should undergo extensive parent counselling with the common aim of building trust and confidence with each other.  This is beneficial in the short term to minimise any potential conflicts over access and; in the long term, to achieve the goal of joint custody over N. 

161.  Both F and M should be aware that N will be turning to 4 next month.  N has been caught in between their conflict in the past 3 ½ years and had, unfortunately, subjected to various tests, assessments, evaluations  and checking which, with hindsight, may not be necessary or even can be avoided.  In the next 14 years to come before N coming to full age, any further disputes or differences between F and M in decision making for N would only jeopardize N’s well being rather than promoting N’s development.

162.  Having seen F and M in Court for more than 2 weeks, I believe both are sensible and loving parents and will be willing to look forward to N’s best interests on all matters.  In order for me to consider details of the general access to be given to F, I need to have further submissions from the parties on their willingness to participate in parent counselling and also the latest daily schedule of N; in particular, I noted the new school year has just started.

163.  I also noticed that there had been arguments in the past as to hours of access, general holidays arrangement and permission to take N out of jurisdiction for pleasure trip.  In resolving the forthcoming general access of F, I hope to be able to cover all these issues as well. 

164.  Following my Judgment on custody, care and control of N be granted to M with general access to F, I now direct a short hearing be fixed with one hour reserved for determination on details of the general access.  Before determination on details of the general access, the present access arrangement shall continue until further Order. 

165.  Accordingly, I grant leave for both parties to submit written submissions on general access arrangement within 14 days from the date of this Judgment. 

Costs

166.  Given the nature of this dispute, I will make no order as to costs including all costs reserved.  As M is legally aided, her own costs be taxed in accordance with Legal Aid Regulations.

Orders

167.  I now make the following Orders :-

(a)  The Respondent do have the sole custody, care and control of  the child N;

(b)  The Applicant do have general access to the child, details to be determined at a hearing to be fixed with 1 hour reserved;

(c)  Pending determination on details of the general access or further Order, the present access arrangement shall continue;

(d)  Both parties to file and exchange written submissions limited to general access within 14 days from the date of this Judgment;

(e)  No Order as to costs including all costs reserved;

(f)  Respondent’s own costs be taxed in accordance with Legal Aid Regulations.

168.  The costs order nisi will become absolute unless any party applies to vary the same within 14 days.