LWY v. YCT

FCMC 9363 /2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 9363 OF 2014

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J U D G M E N T
(Leave to appeal : Care, Control and Access)

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1.  This is the application taken out by the Petitioner (“the Mother”) for leave to appeal the Judgment of this Court dated 29 September 2015 (“the Judgment”) on care, control and access of the child of the family, namely “C” referred to in the Judgment.

2.  The Mother took out the Summons for leave to appeal on 26 October 2015 by herself and obtained legal aid for today’s hearing.  She also filed an Affirmation prepared by herself when she issued the said Summons for leave to appeal.

3.  The Mother’s assigned solicitors Messrs. Chung & Kwan wrote on 17 February 2016 seeking leave for issuing another Summons for leave to amend the Summons for leave to appeal prepared by the Mother herself to be heard at the same time together with the present leave to appeal application.  This Court allowed the amendment Summons to be issued as requested and, accordingly, there are 2 Summonses before this Court today.

4.  As I pointed out to assigned Counsel Miss Pauline Leung who agreed, the intended ‘amendments’ are in fact for the Mother to put in the Grounds of Appeal seemingly to be settled by assigned Counsel (since Counsel’s name does not appear in the draft annexed), rather than any ‘amendment’ to the terms of the Summons drafted by the Mother herself.  The Respondent (“the Father”) was also legally aided and his lawyers Miss Yuen of Messrs. Wong & Tang appeared for this hearing who opposed the Summons for amendment.

5.  Having heard submissions, leave was granted for the Mother to ‘amend’ the Summons for leave to appeal which as I said earlier, in essence, is to file and rely upon the Grounds of Appeal for this hearing.  Having granted leave, this Court checked with Miss Yuen for the Father who confirmed they are ready to proceed with the Mother’s leave to appeal application relying upon the Grounds of Appeal.  The costs of the Summons for leave to amend were ordered to be in the cause of the application for leave to appeal.

The relevant provisions

6.  The jurisdiction to grant leave to appeal rests with section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.

7.  The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that the appellant has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Hartmann JA at paragraphs 8 and 9 of that Judgment).

The Grounds of Appeal

8.  The grounds of appeal relied upon are as follows :-

“Ground 1 :-

The learned Deputy Judge erred in finding at paragraph 43 of the Judgment that no evidence was produced by the Mother in rebuttal to the Father’s allegation (as per paragraphs 7 to 12 of his 1^st Affirmation) regarding the Mother’s personality, character and her previous background (“the Allegations”), when these matters were denied by the Mother in her examination-in-chief and not put to her in cross-examination. It follows if the learned Judge had placed any weight on the Allegations, he erred in doing so.

Ground 2 :-

Given the age of C, the learned Deputy Judge was plainly wrong in making the order as he did, thereby ignoring the importance of the role of the mother in the life of a young child R v. Y (CACV 93/2010) and L v. C (CACV 333/2007) :-

a. He failed to consider at all the degree of intimacy of C with the Petitioner and the maternal grandmother was also observed b the social worker (as per paragraph 16 of the 2^nd Social Investigation report).

b. There is no evidence to suggest that any changes in the status quo would have “significant effect and is not in C’s best interest to do so” (at paragraph 60 of the Judgment).

c. It is accepted by the Respondent that the Petitioner, apart from rendering daily care to C, is also in the position (and better position that the Respondent) to nurture C’s interest in music.

d. In view of the young age of C, the defined access arrangement as ordered by the learned Deputy Judge could not be and is not in the best interest of C.”

9.  In the Grounds of Appeal, assigned Counsel Miss Pauline Leung also prayed (which I will refer as “Reliefs”) :-

“FOR AN ORDER that the Petitioner do have the care and control of the child C (with removal restrictions); and that the Respondent do have defined access to the child every Friday from 8:00 p.m. to Sunday 8:00 p.m.; alternatively, the parties do have joint care and control of the child and that the Respondent do have defined access to the child every Friday from 8:00 p.m. to Sunday 8:00 p.m.”

The Court’s Views

10.  To start with Ground 1, it is pertinent to first refer to paragraph 43 of the Judgment as to what was said :-

“43. Although the Father had not positively asserted that the Mother is a ‘bad mother’, so to speak, his allegations as per paragraphs 7 to 12 of his 1^st Affirmation regarding the Mother’s personality, character, as well as her previous background, are quite serious and in my view, do require the Court’s attention. Those assertions, if shown to be true, would have some impact upon the Mother’s suitability as a child carer. Nonetheless, no evidence was produced by the Mother in rebuttal to these assertions or putting the Mother’s case on such assertions to the Father at cross examination. Mother’s Counsel has not been able to undermine the Father’s credentials through cross examination.”

11.  For the sake of completeness, I need to recite below those paragraphs 7 to 12 in the Father’s 1^st Affirmation (“the Allegations”) of which I had mentioned in paragraph 43 of my Judgment.   

“7. 於同居後不久，有一次約在2012年1月至2月本人和呈請人外出去葵芳與三個舊同事食飯及飲酒回家途中，當閒談至興高彩烈時，呈請人得意忘形地向本人炫耀地講述呈請人自己以往的一些性經驗並說她曾經「群交，一后幾王」。由於當時本人已對呈請人的性格有所了解，呈請人說話經常誇張及自說自話，所以當時本人聽後亦不以為然，縱然本人當時的確有質疑呈請人為何會有這樣的性經驗，但也沒有深究。反正當時與呈請人同居已是事實。

8. 大約於2012年1月至2月，有一次本人和呈請人與三至四個朋友到大窩口晚飯，當食晚飯完畢之後和朋友取電單車，呈請人見到一名坐在一輛Audi（奧狄）私家車內的一名中國籍男子，便興高采烈地就走向男子旁邊寒暄一番，給本人的感覺他是要好的老朋友，而呈請人當時亦對本人說該名男子是她的朋友。

9. 又過了不久約2012年3月左右，有一次本人駕駛家父的私家車接載呈請人外出後返到家樓下的停車場，當到停車場時在車內聽到身旁的呈請人與朋友以手機聊天，呈請人還將手機遞給本人與對方打招呼，後來本人知道當時與呈請人在電話中對話的就是前述第8段的該名男子。本人清楚憶及於該電話談話中，呈請人事無忌憚地與該名男子大談本人的性能力，呈請人此些行為令本人十分反感。

10． 當本人向呈請人追問呈請人與該男子的關係時，呈請人只向本人說該名男子是她的朋友。當本人再質疑呈請人為何與一名朋友討論本人的性能力而再追問之下。呈請人才肯定承認該名男子原來是她以前的SP（即性伴侶），並說現在已沒有再來往。並且向本人再次描述她之前提及過與人「群交，一后幾皇」的事件，而呈請人說該名男子便是「幾皇」其中一個，但呈請人又說該群交事件之中呈請人其實是被人強姦的。本人因此大吃一驚，一輪追問下，呈請人卻說她並沒有報警。當本人再追問呈請人為何不報警時，呈請人卻又沒有作出任何解釋。

11． 本人對呈請人的說話有很多疑問，為何聲稱在呈請人不自願之下而被人作出性侵犯之後的男子竟然會事後做了她的性伴侶及朋友。呈請人的解釋是當時她被幾名男子強姦後，其他男子都匆匆離去，但卻祗有該名男子留下現場，事後更駕車送呈請人回家。所以呈請人寬恕了該名男子並認為可以跟該男子交往。現本人呈上一份在2013年6月26日本人於WhatsApp與呈請人對話中見證物“YCT-1”是該WhatsApp對話的副本，以證明由呈請人與她朋友的對話再轉發給我，對話當中提及曾經性侵犯過呈請人一班人的其中一個找呈請人。

12．  同居後約2012年4月至5月期間本人發覺呈請人患有性病並傳染了給本人，本人和呈請人因此需要一齊到一間位於美孚名為「卓越」的診所求診，及後在油麻地社會衛生科接受進一步治療才康復過來。經本人多番向呈請人查問為何會染上性病時，呈請人才肯說出可能是當她做援交時，又或可能是因為該次被強姦事件，又或者可能是因為與前度男友發生性行為時而遭到傳染所導致，呈請人亦於當時坦白地向本人承認她曾做過援交一段時間，因此並不能肯定是何時給其中的男人傳染而得了性病。”

12.  At paragraph 15 of her Skeleton Submissions, Counsel Miss Pauline Leung referred to the Father having failed to discharge the legal burden of proving the ‘Allegations’ he made by putting those ‘Allegations’ to the Mother at trial.  Thus the Father must have failed in his burden of proof or at least abandoned any reliance on the ‘Allegations’.  There could have no burden on the Mother at all to rebut the ‘Allegations’ or putting her case to the Father at cross examination.

13.  Moreover, Counsel Miss Leung at paragraph 16 of her Skeleton Submissions submitted that this Court erred in placing reliance or weight on the Father’s ‘Allegations’ which must have been the case since paragraph 43 of the Judgment specifically referred to the Father’s ‘Allegations’ would have ‘some impact’ over the Mother’s suitability as a child carer.  Counsel’s also submitted that there is no further reference in the Judgment as to how the Court’s Decision on care and control was influenced by the ‘Allegations’.

14.  Upon reading paragraphs 7 to 12 of the Father’s Affirmation in its context and entirety, the Father was simply telling the Court that he had been told by the Mother as to her (my emphasis) historic events and experience which formed the so called ‘Allegations’. This is completely different from the situation where the Father himself put up some sort of assertions of his own (my emphasis) against the Mother, say for instance, asserting that the Mother is an alcoholic of which the Mother disagreed, then it would be for the Father to prove the accuracies of his own assertion that the Mother is in fact an alcoholic.  Having said, in my view it is wrong for Counsel to say the Father have failed in his burden of proving what he was told by the Mother to be true and accurate.  On all fairness to the Mother and for procedural regularity, it is the Mother who should have been asked the first question to confirm whether she had ever told the Father those of her historic events and experience now forming the ‘Allegations’.  Before the Mother had so confirmed that she had told the Father those matters forming the ‘Allegations’, the Father could not be said to have taken those “Allegations’ on board to be his own case (my emphasis) against the Mother and, by not putting them across in cross examination for the Mother to rebut he had failed in his burden of proof.  This is what Counsel Miss Leung now seemed to suggest in her Ground No.1.  I respectfully disagreed with Counsel.  Counsel’s other submission of Paragraph 12-35, Phipson on Evidence, 18^th ed as to the requirement of putting a party’s own case to the opponent does not seem to be applicable to the circumstances in the present case. 

14.  Further and more importantly, the Father had produced an exhibit “YCT-1” which is a copy of a whatsapp text message (dated 26 June 2013) where the Father said in his Affirmation it came from the Mother who told her friend : “條仆街搞過我個條，黄金海岸個班人”. Such text message was somehow re-directed to the Father’s mobile. There was no evidence from the Mother whatsoever in her examination in chief touching upon such exhibit, say for instance, whether she agreed that it came from her mobile or whether it was her text message.

15.  Faced with paragraphs 7 to 12 of the Father’s Affirmation including exhibit “YCT-1”, what the Mother could or should have done is, in my view, to adduce evidence preferably by way of Affirmation before trial, as to whether she had ever told the Father the ‘Allegations’ and her comment/explanation (if any) to the said exhibit.  No such affirmation or evidence was adduced by the Mother at any stage or even at trial.  Counsel Miss Pauline Leung conceded today that at the examination in chief of the Mother, the Mother only gave a general blanket denial to the Allegations.

16.  To complete the picture on this issue of burden of proof of the Allegations and to do fairness to the Mother, I set out below those relevant parts of the records of the trial hearing on 5 August 2015 (extracted from the transcripts) on her own evidence in chief (between 11:56:59 to 11:57:43) by her Counsel as follows :-

“問： 好，好，好，唔。好喇，係，就住呢個案件喇，李小姐，妳都睇過余先生佢嗰個誓章，係咪？”

 答：  係。

 問：  唔，好，裡面嗰度，余先生個誓章亦都有提及過往妳自己去聲稱妳以前嘅私生活嘅問題喇？

 答：  係。

 問：  咁詳細我哋亦都唔再強調喇，但係佢有話妳以前就做酒吧、佢指稱妳有做援交，即係性經驗嗰方面嘅事情，關於即係援交、性經驗呢一樣嘢，妳即係過往曾經--甚至話妳曾經畀人強姦，呢一啲事，有冇發生過？

 答：  唔同意囉。

 問：  唔同意？

 答：  係喇。

 問：  即係冇發生過，係咪？

 答：  冇。”

17.  It can be seen that the Mother might have been led to believe the ‘Allegations’ were asserted by the Father rather than the Father telling the Court what he had heard from her. This might be the reasons for Counsel to now submit that the Father had failed in proving the ‘Allegations’.  From reading the transcripts, the Mother had not been asked in the first place to confirm whether she had ever told the Father about those matters (forming the ‘Allegations’) before she was asked to agree or to not agree with the ‘Allegations’.     

18.  There are 2 Social Investigation Report (SIRs) prepared for the trial of the care and control of C.  Since the Mother does not accept the recommendations in the SIRs and accordingly, in line with the prevailing practice, leave was granted on 22 January 2015 by the Court for her to file her Affirmation as to the SIRs on or before 12 February 2015.  The Father was also granted leave to file his Affirmation in Reply (if any) on or before 5 March 2015.  No further Affirmation was allowed to be filed by either party without leave.  There was then fixed a Pre-Trial Review to be heard on 8 April 2015.

19.  Although the Father’s Affirmation containing the said paragraphs 7 to 12 was filed on 5 March 2015 which is after the Mother’s Affirmation, there is no application by the Mother’s lawyers before or at the Pre-Trial Review or at any time whatsoever after the Father’s Affirmation was filed seeking leave for the Mother to file a further Affirmation to address paragraphs 7 to 12 of the Father’s Affirmation.   At the very least, an Affirmation to confirm whether she had ever said so to the Father.  Given the fact that the Mother was legally represented all along (including the Pre-Trial Review), she should have been fully and properly advised as to her rights and the necessity and importance of adducing evidence on those ‘Allegations’ set forth in the Father’s Affirmation of which, quoting the words in paragraph 43 of my Judgment, “are quite serious matters and would require the Court’s attention when determining care and control issues”.  There was, however, no such application for affirmation in reply to be filed by the Mother.  

20.  For the above reasons, the submission by Counsel Miss Pauline Leung as to error of law on burden of proof fails. What follows next is the question whether this Court could have placed reliance and weight on the ‘Allegations’ when deciding the outcome.  At paragraph 78 of the Judgment, this Court said full consideration had been given to all the evidence which would include the ‘Allegations’ and the absence of any constructive or substantive reply from the Mother.  It is trite law that whatever weight to be attached to any piece of evidence is a matter completely for the trial judge depending on the facts of each case as well as the particular issue to which such evidence relates.  Upon further consideration, I maintained that no excessive or improper weight had been given, in so far as the ‘Allegations’ are concerned, when deciding the outcome of care and control of C.

21.  Accordingly, I do not see there is any reasonable prospect of success of Ground No.1 on appeal.

22.  As to Ground No.2, there are 4 limbs of contention from (a) to (d) to which I will deal with separately below.

23.  On Ground 2 (a), reference was made to paragraph 16 of the 2^nd SIR where the degree of intimacy between the Mother and the maternal grandmother was observed by the Social Welfare Office Mr. Lo.  At paragraph 56 of the Judgment, this Court has had an in-depth reading of Mr. Lo’s two (2) SIRs and also considering his testimonies in Court, including the child’s intimacy towards the parents and the 2 grandmothers (my emphasis) before he concluded that the best interests of C would be secured by granting care and control to the Father.  Consideration on intimacy between C and both grandmothers had been duly given by this Court.

24.  I find Ground 2 (a) has no reasonable prospect of success on appeal.

25.  On Ground 2 (b), it is trite over the years and commonly accepted amongst jurisprudence that ensuring stability, which may include  maintaining the status quo, is one of the important factors and starting point when determining the best interests of children.  The absence of evidence, as so submitted by Counsel, would not displace such long standing concept.  Counsel’s contention, as I read it, seems to suggest the other way round that the Court should be minded to consider a change of the status quo if there is no evidence to suggest that any change would have significant effect or not be in the best interests of the child.  Such contention, in my view, is clearly unorthodox and bound to fail.

26.  I find this Ground 2 (b) has no reasonable prospect of success on appeal.

27.  On Ground 2 (c), reference was made to the Mother’s better position to nurture the chid C’s interest in music.  The Court when deciding where the best interests of a child should lie has to consider a whole spectrum of factors.  Any abilities or expertise of a parent is only one of the many factors to consider.  The Mother’s talent and achievements in music is only a factor, not a determining or conclusive factor, in respect of which this Court had already considered but found not to be sufficient in tilting the balance to the Mother’s favour.

28.  I find this Ground 2 (c) has no reasonable prospect of success on appeal.

29.  On Ground 2 (d), it was submitted that the defined access arrangement so ordered by this Court upon granting the Father care and control not to be in the best interests of the child C.  I took the chance to raise with Counsel as to why the “Reliefs” (see paragraph 9 above) was inserted into and to form part of the Grounds of Appeal in light of the nature of this application is for leave to appeal rather than any form of ‘Review or Variation’ application, so to speak.   Moreover, the alternative relief sought therein for “joint care and control of the child and that the Respondent do have defined access to the child every Friday from 8:00 p.m. to Sunday 8:00 p.m.” is uncommon since giving the Father defined access pre-supposes that the child would be living with the Mother notwithstanding that it was meant to be a “joint care and control” scenario. 

30.  Counsel Miss Leung submitted the “Reliefs” are merely for the Court’s consideration in the event of the application being successful.  Counsel is contended with the alternative part of the intended “Reliefs” to end with “joint care and control” leaving behind any defined access to be further explored between the parties or dealt with by the Court. 

31.  Counsel submitted that the defined access of every Tuesday and Thursday from 3 p.m. to 6 p.m. ordered by this Court clashed with the sleeping time of C who is only 2 ½ years old.  Counsel referred to the Affirmation of the Mother filed in support where she deposed that such hours would be for the child to take his afternoon nap.  Since defined access would not be exercised within the Father’s place of residence, this mean C would be out of home with the Mother during such week days defined access of Tuesdays and Thursdays.  C would then not be having his afternoon nap.

32.  Miss Yuen for the Father made a quick reply that the kindergarden which C is now attending suggested their students to take a nap between 1 p.m. and 3 p.m. after school hours.  This is what had happened so far.  The defined access so ordered therefore does not clash with C’s napping time. 

33.  Counsel Miss Leung has no further instructions to reply as to C’s napping time at present during week days save and except that she does not quite understand how the kindergarden would suggest napping time for their students.  Counsel further submitted that it is generally common for child of such tender age to have afternoon naps.

34.  I have found that the Mother’s other grounds for leave to appeal as to care and control has no reasonable prospects of success.  Counsel has not been able to convince this Court as to what error of law was there in respect of the defined access so ordered in the Judgment.  I also find this Ground 2 (d) has no reasonable prospect of success on appeal.

Any “Otherwise” grounds?

35.  I also find that there are no reasons in the interests of justice that leave to appeal should be granted.

Conclusion

36.  In conclusion, I am not satisfied with any of the Mother’s Grounds of Appeal have any reasonable prospects of success.  I also find there are no reasons that leave to appeal should be granted on the interests of justice ground.  

37.  Accordingly, I would dismiss the Mother’s Summons dated 26 October 2015 seeking leave to appeal. 

38.  Both parties are legally aided in this application.  I decided to make no order as to costs of the Mother’s application for leave to appeal.  Both parties’ own costs be taxed in accordance with Legal Aid Regulations.

Other Matters

39.  It is also part of the Judgment that both parties are to attend co-parenting counselling services.  I believe such services would facilitate trust and confidence to be built up which is wanting between the parents at present notwithstanding that they had both agreed to have joint custody of C at the very beginning of the divorce.  Not only would persistence in litigation over children hinder the necessary co-operation that is required of the joint custodian parents, it may also affect the well being and development of the child in question which clearly would be detrimental to the child’s best interests.