CHIU KWAI FUN, DONNA v. LAM HING KEUNG

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JUDGMENT

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1. The plaintiff in this matter Madam Donna Chiu commenced her action on the 16th April of this year asking for custody and control of the infant child of her marriage to the defendant Mr. Lam Hing Keung. The child, an infant daughter, Lam Wenky was born on the 30th January 1985. The parties had been cohabiting together prior to the birth of their daughter but were lawfully married on the 12th of February 1985 at the Shatin Marriage Registry. The marriage does not appear to have been a happy one thereafter and after considerable matrimonial discord the plaintiff on the 16th of April commenced this action asking for care and control of the infant, and that the infant be made a ward of Court. At that time, the defendant acting with the sort of irresponsibility that, I am satisfied, has characterized his behaviour throughout the period of the marriage, had disappeared with the child who is a girl and who was then only 4 months of age. On the 19th of April, Mr. Justice Addison made an ex parte order which required the defendant to disclose the whereabouts of the child and which gave custody and control of the child to the plaintiff. It appears that the child, when returned to the plaintiff shortly thereafter, was found to be suffering from pneumonia and was then hospitalized in the Prince of Wales Hospital. The child was still in hospital receiving medical attention when on the 29th of May, Deputy Judge Barnett made an inter parties order giving care and control of the infant to the plaintiff. After an incident at the hospital, Deputy Judge Barnett made a further order forbidding the defendant to enter the hospital while the ward was still a patient therein and ordering that he not approach the plaintiff or the ward before the determination of these proceedings. On the 2nd of October, the matter came in front of me for the first time on an application by the defendant who was asking that Deputy Judge Barnett's order be changed so that he be given custody of the child. There was, at that time, an affidavit in front of me which alleged that the defendant had been in persistent breach of the order of Deputy Judge Barnett. On that day, I refused to vary the order of Deputy Judge Barnett and adjourned the matter to a date to be fixed for hearing. I then cautioned the defendant warning him that the word 'approach' in the order meant an approach of any sort and included approaches by telephone. I also warned him that if he breached the order, he risked imprisonment for contempt of Court.

2. The parties appear in front of me now upon the hearing of the application for custody by the plaintiff mother and also upon the hearing of an application for an order for committal made by the plaintiff mother upon the basis that the defendant has been in persistent breach of the order of Deputy Judge Barnett.

3. The evidence of the plaintiff, both in her affidavits and orally before me was that the defendant had persistently breached the order since the time of its making by approaching her both personally and by telephone.  It was her evidence that on the 3rd of October, one day after the defendant had appeared in front of me and been warned that he must obey the order, he again commenced to telephone her. She then detailed a number of approaches made to her by telephone and by paging her which continued throughout the month of October. I have no hesitation in accepting the evidence of the wife in this regard and I am satisfied from it that the defendant persistently breached the order up to the 2nd of October and that, despite a clear warning from me, he has persistently breached the order since that date. Although he has persistently and wilfully refused to obey the order of the Court and failed to heed the warning of the Court he now, through his Counsel Mr. Pritchard, asks for further indulgence. I take into account that the defendant is an immature person and that he has been under some stress, but I am, nonetheless, satisfied that the only responsible course to be followed by this Court is to impose a period of imprisonment for contempt.

4. I order that the defendant be taken into custody forthwith by the Bailiff and that he be imprisoned for a period of 1 month. When so doing, I point out to his legal advisers that under order 52 r.8(1) it is in the power of the Court, at any time, upon application by a person committed, to discharge him. They may wish, during the period of imprisonment, to consider whether it would be approprite to make an application for discharge and to place whatever he then wishes to say before this Court for its consideration.

5. I grant custody of the child to the plaintiff. I am satisfied that, for the time being, the defendant should not have access to the child but I order that the Social Welfare Officer is to furnish a report as to the wellbeing of the child every 2 weeks to the defendant. I adjourn his application for access for a period of 3 months and I will then, should he wish to bring the matter on again, consider all of the circumstances and, in particular, his conduct in the interim period.

6. The plaintiff has asked that an order for maintenance be made which regard to the child. She herself is working earning about $3,000 a month and the defendant says that he is working earning about $2,500 per month. The plaintiff suggests that the overall maintenance of the child runs to a figure of about $1,500 per month. I am satisfied that a fair global figure for the maintenance of the child would be $1,300 a month and taking into account the earning capacities of the parties, I order that the defendant pay towards the maintenance of the child a sum of $600 per month. The first payment should be/or the month of December and is to be made on or before the 31st of December and payments are to be made monthly thereafter on or before the last day of each month.

7. The cost of each party are to be taxed in accordance with the Legal Aid Regulations and I certify for Counsel.