CHAK MEI YAN v. CHUN YAN LOI

HCMP314 of 1995

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. In this matter the plaintiff Madam Chak Mei Yan seeks custody of CHUN Yag-chi, a boy, aged 1 year and 7 months. The child is the son of the plaintiff and her husband CHUN Yan Loi who is the defendant. On the 2nd February 1985 she commenced wardship proceedings. In her affidavit in support she recited the facts set out below. She said that after a matrimonial dispute about money, she left the matrimonial home at Flat B, 17th floor, No. 37 Broadway, Mei Foo Sun Chuen on the 10th January 1985 leaving the child with the defendant and that when she returned on the 27th January 1985 she discovered that both the defendant and the child had gone. The plaintiff said that she was then living with her brother at 112 Broadway, Mei Foo Sun Chuen, Flat C, 11th floor and that despite further visits to the matrimonial home she was unable to see the minor or discover his whereabouts.

2. On the 18th February, the defendant filed an affidavit which he said that the child was living with him at the matrimonial home and was being cared for by an amah and alleged that the plaintiff was not suitable to take care of the child because she suffered from kidney disease. He said that the plaintiff tired easily and was not capable of caring for the child. He denied that there had been any argument with the plaintiff over money matters as she had alleged and said that he had only removed the child temporarily while he was making arrangements to employ an amah.

3. The defendant in a further affidavit filed on 1st of March alleged that the plaintiff was not staying with her brother at Flat B, 17th floor, No. 37 Broadway, Mei Foo Sun Chuen but was staying with her elder sister. In that affidavit the defendant dealt at length with the matrimonial finances. I have no need to canvas those matters as the question of maintenance is being dealt with in the District Court.

3. On the 2nd of March the defendant filed a further affidavit in which he admitted that the argument prior to 10th January had been about money but sought to draw a distinction, which I was unable to understand, between an argument over a “money matter” and an argument concerning  “the investment of money”. He alleged that not only was the plaintiff’s health not such as to allow her to care for the minor but also that she did not have the patience for such duties. He also alleged that the plaintiff had not received any “education relating to ways and means of looking after the minor”. He said that the plaintiff had not allowed herself to be pursuaded by him to read books concerning children and that he had great doubt as to her love for the minor.

4. On the 4th of March Deputy Judge Barnett gave care and control of the child to the defendant but ordered that the plaintiff have access to him for 3 hours each afternoon. He also called for a Social Welfare Report. This report was furnished by Mrs. Chu Lai Shuk-ying on the 24th April 1985 and in it she recommended that the custody be given to the plaintiff with reasonable access to the defendant.

5. On the 23rd of May, the defendant filed a further affidavit in which he alleged that he was able to tell from the appearance of his wife that she was again suffering from her kidney disease. He alleged that during the time when he and his wife were living together because she had often been “exhausted” she had failed to care properly for the child who had, on one occasion, fallen from a baby car and who had, on another occasion, due to the plaintiff’s carelessness, been allowed to play with and open a box of ointment for nappy rash which he had smeared over his face. He alleged that, on another occasion, she had left the child in bed without adequate covering. He alleged that the plaintiff would not wake up early enough in the morning to feed the child and did not get up during the night to change the child’s nappy. There was emphasis in the affidavit upon the failure of the plaintiff to be guided by the superior knowledge of child care of the defendant. The affidavit also revealed a marked antiphay to the elder sister of the plaintiff who the defendant said, behaved “in a very reckless way” and had a “cruel and violent” voice. He also said that she was a violin teacher and that the noise of students playing would be detrimental to the child if he lived in her house. He said that if custody was granted to the plaintiff and the child went to live with the plaintiff and her sister, he could “easily be harmed and corrupted both mentally and physically”.

6. On the 28th of May the matter came again before Deputy Judge Barnett who adjourned the matter for hearing and ordered Mrs. Chu, the Social Welfare Officer to attend thereat.

7. On the 13th of June the mother of the plaintiff filed an affidavit saying that she was prepared to help the plaintiff to look after the child if the plaintiff was given custody and that the plaintiff was residing at Flat C, 11th floor, 112 Broadway, Mei Foo Sun Chuen with her, her husband, her son, her daughter-in-law and two grandchildren.

8. On the same day, the plaintiff filed a further affidavit in which she dealt with her the incidents referred to in the defendant’s affidavit of the 23rd of May and denied that she had ever failed in her duty to take proper care of the child.

9. On the 20th June Deputy Judge Barnett, who had all the material recited above before him, adjourned the hearing and made an interim order giving care and control of the child to the plaintiff.

10. The hearing was adjourned on that day at the request of the defendant who said that he needed time to travel to Quan Zhau to obtain written evidence that the plaintiff had registered a marriage between herself and one Man Chi-fat in Quan Zhau on the 23rd May 1973.

11. The defendant filed a further affidavit on 28th of September to which he annexed a document issued by the Yuet Sau District Tai Nam Street Office which stated that the plaintiff “held a certificate of Yien On Machinery and Electricity Society and came to my street to apply for marriage registration with Indonesian Overseas Chinese Man Chi-fat on 20th May 1973. After approval has been granted, the Marriage Certificate of Yuet Cheng Kit Tzi No. 123 in duplicate copies were issued on 23rd May 1973”. The defendant went on to state that since the child had been given into the care and control of the plaintiff, he had suffered from influenza on three to five occasions and had “also suffered many accidental wounds and injuries after 21st June 1985”. The defendant detailed the influenza attacks and the “wounds and injuries” with great particularity and annexed a number of photographs which he said were relevant thereto. He alleged that the plaintiff failed to dress the child in summer clothing and he contested  the correctness of the conclusion that custody of the child should be given to the plaintiff reached by Mrs.Chu in the Social Welfare Report. He said that the plaintiff was not living at the addresswhich she gave but was in fact living with her sister at 100 Broadway, Mei Foo Sun Chuen. He annexed a number of photographs which he said showed the plaintiff entering those premises.

12. The defendant also filed an affidavit from a Madam So To Pui-kwan who said that she would take care of the child if custody was given to the defendant.

13. When the matter came on for hearing before me the defendant cross-examined MadamChu, the Social Welfare Officer, putting to her that she had not fully set out the facts in her report and that the conclusion at which she arrived therein was not justified by the circumstances. The witness agreed that she had not felt it necessary to set out in her report every fact that had been revealed to her by the parties but she was in no way shaken by the cross-examination with regard to her conclusion that the child should be under the care and control of its mother.

14. The defendant then cross-examined the plaintiff. He dealt first with the registration of marriage between the plaintiff and Man Chi-fat on 20th May 1973. She admitted that she had registered that marriage in 1973 saying that it was during the cultural revolution and that the marriage was registered with an overseas Chinese to save her family from political persecution and in the hope that the fact of marriage would enable her to come to Hong Kong. She said that in fact the parties were not married. She said that she told the other party that if they were both to come to Hong Kong, they could live together as man and wife. She said she had not had her “bogus marriage”formally dissolved because the Certificate had been issued during the cultural revolution and she didn’t know if it would be recognized as having any validity in Hong Kong. She said that she explained the whole position to the defendant before they were married. It was put to her that she had not ever told the defendant of the former marriage but she denied this. She said that the defendant was only bringing the matter up now because after the Social Welfare Report he realised that he might not obtain custody of the child. This matter was not pursued by the defendant in his evidence nor did he refer to it in his lengthy final address. Whatever may be the full facts surrounding this incident, I am satisfied that it should not be allowed any weight in the application before me.

15. The defendant then cross-examined the plaintiff at considerable length about the influenza which the child suffered in the months after the 21st of June and about the injuries which were occasioned to his face and head. The defendant produced sheets of photographs which he had taken almost daily showing the various scratches and marks on the face and head of the child. The plaintiff said that the influenza was simply a childish aliment that any child might have had and she said that the injuries were caused by falls. It was the defendant’s case that the injuries were serious ones and that they and the influenza were the result of neglect by the plaintiff which showed that she was unfit to have care and control of the child. She denied this absolutely saying that the injuries were minor and were the sort that any child might receive when learning to walk or by scratching himself.

16. The defendant was cross-examined by Mr. Mitchell for the plaintiff and agreed that none of the injuries had ever been so serious as to require the child to be taken to hospital and that the doctor had certified that the child was generally healthy.

17. The suggestion by the defendant that the plaintiff was living at the residence of her sister, I am satisfied had no substance at all. The plaintiff admitted that she visited her sister almostdaily and the photographs which the defendant produced are wholly consistent with this evidence.

18. Having heard lengthy cross-examination and examined all of the photographs produced, I was quite satisfied, with regard to the injuries, that the version of the plaintiff was correct and that the child had suffered the sort of minor scratches, cuts and bruises which one would expect might be suffered by a child of this age. My finding that none of the injuries were serious is, I am satisfied, supported by the medical certificate produced by the defendant “CYL-2” which, while it setsout the existence of a laceration, three scars and a bruise, makes no suggestion that any of these were serious. I accept also that the influenza suffered by the child was not occasioned by any neglect on the part of the plaintiff. I accept that the plaintiff enjoys good health and that she loves the child and exercises proper care and control over him.

19. The plaintiff did, with regard to two of the injuries suffered by the child, suggest that they took place when the child was with the defendant or with an amah employed by him. I do not accept that the plaintiff’s evidence in this regard was correct. She undoubtedly gave the evidence because she felt that it would strengthen her case. I am unable to form any conclusion as to whether she gave it knowing that it was untrue or whether she gave it without having any real recollection as to what had actually occurred. It seems quite likely that the latter was the case as injuries complained of were of such an every day nature as to have been unlikely to have made any distinct impression upon her mind.

20. When coming to my conclusion, I have borne in mind the matters raised in the affidavits, the cross-examination of the plaintiff by the defendant, the plaintiff’s unsatisfactory evidence with regard to two of the injuries and the matters canvassed by the defendant in his lengthy address. I have, in the outcome, no doubt that the plaintiff is a fit and proper person to take care of the child and that it is in the best interest of the child that he remain in the custody of his mother.

21. I consider it proper to comment finally that, as regards the attacks of influenza, this condition may well have been aggravated by the fact that the father was taking the child out each day. The photographs show that the child was taken out and photographed on occasions when he was clearly suffering from what the doctor describes as an “upper respiratory tract infection”. In my view it would have been in the best interest of the child if the father had foregone his access right during the period when the child was ill.

22. I have no doubt that the defendant has a very genuine and deep love of the child and is concerned that the child be properly cared for. He is, however, an overly meticulous person and has in his evidence exaggerated a number of small incidents in an attempt to give them a significance which is out of all proportion to their real importance.

23. I order that the plaintiff have care and control of the child.

Mr. Mitchell (Haldane & Midgley) for the plaintiff

Mr. Chun, defendant in person