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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J U D G M E N T

(Leave to appeal)

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1.   This is the application taken out by the Applicant (“the Father”) for leave to appeal from the Judgment of this Court dated 5 October 2012 (“the Judgment”).

The relevant provisions

2.   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.

3.   The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he 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 the Judgment).

4.   In the present application for leave to appeal, the Father was represented by Counsel Miss Annie Lai (“Miss Lai”) who had conducted the latter part of the trial following the Father’s change of his team of legal representatives after 9 days of trial.  The Mother was represented by Counsel Mr. Kevin Li on the instructions of Legal Aid Department to oppose this application.

The Grounds of Appeal

5.   The draft Grounds of Appeal settled by Miss Lai dated 2 November 2012 was amended on 13 December 2012 from 2 grounds to 4 grounds which I recite as follows.  I adopt the format of Counsel that the amended or additional grounds are underlined :-

“Ground 1 – The Learned Judge was wrong in law and evidence in his findings on the aspects of medical evidence.

[Paragraph 84 of the Judgment]

Ground 2 – The court failed to consider or adequately consider all other relevant factors stated in the Checklist as set out in the English Children Act 1989. Further, in the balancing exercise, the court placed excessive reliance upon the “need to maintain the ‘status quo’ and ‘the question of suitability of caring ‘young child’.  With the stated health hazards involved, it must shift the balance against the maintaining of the ‘status quo’”.

[Paragraphs 138-150 of the Judgment]

Ground 3 – The court has failed to sufficiently consider the child’s health issues are the real result of the mother’s problematic child care and there was no sufficient weight attached to the said child care concerns.

[Paragraphs 95-115 of the Judgment]

Ground 4 – A joint Custody Order should not be excluded and there was no sufficient consideration on whether the failure in cooperation between the parents was caused by such self-induced conflict(s) by one parent, i.e. the mother.  In all the circumstances of the case, at least, a Joint Custody order should be granted for the welfare and interest of the child and in the light of those child care concerns.

[Paragraphs 151-157 of the Judgment]

6.   Plainly Grounds 3 and 4 were additional grounds at a later stage.

Ground 1

7.   There are 3 limbs of submissions under this ground made by Miss Lai. 

8.   First, Miss Lai submitted that Dr. Leung (arranged by the Father as his witness to testify at trial) was entitled to take into account of another medical practitioner Dr. Wor Lam’s medical notes and findings, then to arrive at his own diagnosis and findings and that such materials are not “hearsay”.  With respect, I do not agree.  As I stated in paragraph 84 of my Judgment, Dr. Leung had not underwent the checking himself to see the teeth stains appeared in the photographs produced by the Father.  It was Dr. Wor Lam who did the checking.  Even if Dr. Leung was testifying as a factual witness (leaving aside the live issue as to expert evidence which I have found in this case), Dr. Leung was expected to tell the Court what he himself directly saw and found.  Referring to others’ notes and findings and adopted them as his own evidence of fact, in my view, is plainly adducing secondary hearsay evidence.  As such, it bears little if no evidential value as to the truth of what is in it.  Miss Lai had also not been able to produce any rules or authorities on such admissibility aspect.

9.   Secondly, Miss Lai submitted this Court erred in accepting Dr. Cheng’s evidence (arranged by the Mother to testify at trial) who was giving expert evidence and opinions without leave.  Again with respect, I do not agree.  As I have explicitly stated in paragraph 86 of my Judgment, Dr. Cheng had filed an Affirmation covering various aspects including the stained teeth issue.  In the case of an expert giving expert evidence, directions have to be obtained in advance from the Court and the substance of the expert evidence to be disclosed in the form of a written report or reports (see Order 38 rule 37(1) of the Rules of District Court (“RDC”).  Practice Direction 15.12 Part G paragraph 9(6) expressly provides for, amongst others, that Order 38, Part IV of the RDC on adducing expert evidence is applicable in matrimonial cases.

10.   I have already stated in paragraph 87 of my Judgment that the lack of expert directions for Dr. Cheng would not prevent him from filing an affirmation on facts and testifying in Court as a witness of fact.  As such, he was subject to cross examination in the same way as any other factual witnesses.  This had happened in the trial.  The Court is always entitled to decide whether the evidence given is a statement of fact or an expression of expert opinion.  In my Judgment, I have found at paragraph 87 as follows :-

“……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.”

11.   As a matter of fact, this Court only accepted the part on stained teeth referred by Dr. Cheng in his Affirmation to be factual evidence with the rest of his Affirmation on other aspects not been accepted as evidence of fact.

12.   My paragraph 106 of the Judgment (which Miss Lai also referred to under this Ground of Appeal) is a ‘fall-back’ situation in that even if I could treat the reports of Dr. Wor Lam and Dr. Stanley Lam as “non expert reports” so that expert directions are not required, the fact remain is that both makers had not testified at the trial (in the same way as Dr. Cheng) to at least confirm their reports and subject to cross examination in the same was as any other factual witnesses.  In such a situation, how could their reports be accepted at their face value to be evidence of truth ?

13.   Thirdly, Miss Lai submitted this Court erred in rejecting Dr. Leung’s evidence in that he had considered Dr. Stanley Lam’s report which the Court had found to be ‘inadmissible’ and ‘secondary hearsay’.  With respect, I do not see the force of Miss Lai’s submission.  At paragraph 110 of my Judgment, I have already pointed out that the fundamental flaw on (a) inadmissibility of Dr. Stanley Lam’s report (because of lack of expert directions) and (b) secondary hearsay (because the maker Dr. Stanley Lam had not testified in court) could not be cured by Dr. Leung’s written statement or his oral evidence in court.

14.   Accordingly, I cannot see there is any reasonable prospect of success of this ground on appeal.

Ground 2

15.   I noted the date of Miss Lai’s Grounds of Appeal was 2 November 2012 and amended on 12 December 2012. 

16.   It is unfortunate to see Miss Lai still pursue on this ground at this hearing without reference to the latest cases and authorities.   On 9 October 2012 (that is 4 days after my Judgment and about 22 days before Miss Lai settled her first draft of the Grounds of Appeal), Hon Poon J in the case of H v. N , HCMP No.129/2011 at Part D of his Lordship’s Judgment sets out the approach to be taken by the Court in section 3(1) of the Guardianship of Minors Ordinance, Cap.13 (“GMO”) when considering custody issues.  

17.   His Lordship specifically referred to “Use of ‘the welfare checklist” at Part D of his Judgment. Quoting the relevant passages as follows :-

“D3.3  Use of ‘the welfare checklist’

26. In assessing the best interests of the minor, the court must have regard to all the relevant factors.  Section 3(1)(a) has only prescribed two specific factors that the court must have regard to : (a) the minor’s views, if having regard to his age and understanding 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.  I will return to the minor’s views and the social welfare report in a moment.

27. In recent years, when applying the welfare principle under section 3(1) of the GMO, judges in the Family Court have consistently adopted the matters specified in section 1(3) of the English Children Act 1989, which have now come to be known as “the welfare checklist”.  Those factors are :

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

(b) his physical, emotional and educational needs

(c) the likely effect on him of any change in his circumstances

(d) his age, sex, background and any characteristics of his which the court considers relevant

(e) any harm he has suffered or is at risk of suffering

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

(g) the range of powers available to the court under the 1989 Act in the proceedings in question.”

It has more or less become a standard practice in the Family Court in cases involving children to make use of “the welfare checklist”.

28. I endorse this practice, but with three caveats.

29. First, absent any statutory underpinning in the GMO, our courts are under no duty to have regard to “the welfare checklist”.  In other words, it is not compulsory to do so.  Whether a judge may wish to make use of it and if so how is entirely a matter for him. For example, he may cherry-pick, as it were, only those factors on the checklist which are relevant to the case before him. As long as the judge’s decision, supported by reasons, is demonstrably in the best interests of the minor, he cannot be criticized for not expressly applying the checklist or not going through all the factors one by one.

30. Second, when applying the checklist, judges are not subject to the laborious necessity of expressly relating their findings in every case to its specific provisions one by one.  Otherwise the task will become too onerous unnecessarily.

31. Third, “the welfare checklist” is an aide-memoire designed to ensure that none of the factors potentially relevant for a court considering a child’s welfare generally in the circumstances of each particular case is left out of account : London Borough Southwark v. B [1993] 2 FLR 559, per Waite LJ at p.573B-C. It is not meant to be exhaustive.  Judges are entitled to and indeed should have regard to all other relevant factors even if they are not on the list.

32. Subject to these caveats, I think judges are at liberty to make use of “the welfare checklist” in the way that best suits the need of the case before the court for the purpose of assessing the best interests of a minor.”

18.   This Ground of Appeal was drafted well after the H v. N case (supra) when his Lordship had already confirmed the Judge hearing custody cases is under no duty to have regard to “the welfare checklist” or is he compulsorily to go through it.  It is entirely for the Judge to decide who may, if decided to use it, even cherry-pick.  Although my Judgment preceded the H v. N case for 4 days, the approach this Court had adopted of considering 3 out of various other factors had been positively affirmed by his Lordship.  Upon further consideration for this application for leave to appeal, I maintain only the 3 factors I picked and recited at paragraph 140 of my Judgment are of relevance to the facts of this case.

19.   As regards Miss Lai’s submission that this Court, in the balancing exercise, placed excessive reliance upon “status quo” and “suitability of caring young child”, I have provided full reasons in paragraphs 140 and 141 of my Judgment which I do not intend to repeat here again.  Suffice to say is that full consideration had been given to those cases and authorities recited in paragraphs 142 to 150 of my Judgment before reaching my conclusion and finding.

20.   As regards the underlined part (that is, those additional part) in this Ground of Appeal as to the stated health hazards shifting the balance against maintaining “status quo”, I have difficulty to follow Miss Lai’s submission.  Reason being that this Court had made no finding upon evidence as to any health hazards having existed save and except that the many so called ‘health hazards’ are the Father’s personal allegations which need to be subject to proof.  Miss Lai also failed to address this Court what findings that health hazards had been proved by evidence.  With due respect, I do not see how it could be said “the stated health hazards” without such alleged or stated health hazards having been proved in the first place.

21.   Accordingly, I cannot see there is any reasonable prospect of success of this ground on appeal.

Ground 3

22.   Miss Lai submitted this Court failed to sufficiently consider child’s health issues are result of mother’s problematic child care.  However, the same fallacy again, in the absence of any primary findings of fact upon evidence of child’s health issues having existed in the first place, how could this Court be challenged for not considering the child’s health hazards to be the result of Mother’s problematic child care or the Court be challenged for not attaching sufficient weight to child care concerns ? 

23.   As I have stated in paragraph 42 of my Judgment, there are several tenths of accusations of health hazards by the Father against the Mother from earth to sea on virtually all matters.  Whatever done by the Mother would end up with one single result, that is, accusations by the Father.  There were even allegations by the Father against Dr. Cheng who was consulted by the Mother notwithstanding that Dr. Cheng had been the family doctor for the child.  Having considered all the evidence after trial, my concluding views are that the ‘health hazards’ come from the Father’s accusations and mistrust of the Mother rather than successfully proved by evidence produced at trial by the Father.  I have cited certain examples such as photographs arranged by the Father under exhibit “CCMJ-88’ depicting the Father himself assisting the child in brushing teeth coupled with descriptive words of ‘12 September 2011 – Happy Brushing’; photographs under exhibit “CCMJ-7-23” and also with descriptive words ‘These photos were taken prior to the cleansing and brushing done by father’ are all self serving evidence which bears very little weight or evidential value (see paragraph 88 of my Judgment).

24.   In the absence of any primary findings of facts upon admissible evidence as to the existence of child’s health issues, I cannot see there is any reasonable prospect of success on this Ground of Appeal.

Ground 4

25.   Miss Lai submitted a joint Custody Order should not be excluded.  This submission is, without any disrespect, misconceived.  At paragraphs 151 to 157 of my Judgment, full consideration had been given to those cardinal cases such as Y v. P and PD v. KWW to determine whether a joint Custody Order should be granted in the present case. 

26.   At paragraph 154 of my Judgment, I said :-

 “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 (my emphasis).  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 (my emphasis)。”

27.   Miss Lai’s other submission that no sufficient consideration as to the failure in cooperation between the parents was caused by self-induced conflict(s) by one parent (i.e. the mother) is, in my view, unfair and unsubstantiated because it presupposed the Mother’s conduct was at issue.  Again, there is no such finding of facts upon evidence by this Court as to the Mother’s conduct.  Again without any disrespect, I totally fail to see the logic behind such submission by Miss Lai.

28.   I also cannot see any reasonable prospect of success on this Ground of Appeal.

Conclusion

29.   In conclusion, I am not satisfied that the Father has demonstrated any one of the 4 Grounds of Appeal has a reasonable prospect of success.  

30.   I also find that there being no reason in the interests of justice that leave to appeal should be granted.

31.   For the above reasons, I would dismiss the Father’s Summons dated 2 November 2012 seeking leave to appeal.  I also make an order that the Father do pay the costs of this application to the Mother.  As the Mother is legally aided, I also order that the Mother’s own costs be taxed in accordance with Legal Aid Regulations.

32.   I also grant Certificate for Counsel.