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Judgment Cited in Precedent Map Related
Vincent
Judgment Date04 August 2005
Year2005
Judgement NumberFCMP8/2004
Subject MatterMiscellaneous Proceedings
CourtFamily Court (Hong Kong)
FCMP000008/2004 A v. Y

FCMP No. 8/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT MISCELLANEOUS PROCEEDINGS NO. 8 OF 2004

　

　

 　 		IN THE MATTER OF CUSTODY OF N, A GIRL

AND

 IN THE MATTER OF SECTION 10(1) OF GUARDIANSHIP OF MINORS ORDINANCE, (CAP.13)

BETWEEN

　 A Applicant
　 And 　
　 Y Respondent

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Coram: Deputy Judge C.K. Chan in Chambers (not open to public)

Dates of Hearing : 25-28 July 2005

Date of Judgment : 4 August 2005

----------------------

J U D G M E N T

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1. There are 2 applications made by the Applicant: for the custody of the child of the family and the removal of the child out of jurisdiction.

Background

2. The Applicant is a Pakistani national who came to Hong Kong for doing business in mobile phone accessories. The Respondent is a Chinese born in the mainland but migrated to Hong Kong some years ago. The child in question is called N who was born locally out of wedlock. For convenience, I shall call the Applicant “the Father”, the Respondent “the Mother” and the child “N” in this judgment.

3. It is common ground that it is not the first time for the Father to be in Hong Kong. Back in 1998, the Father did come to Hong Kong once. During his last stay, he was convicted of an offence concerning false documents and he was sentenced accordingly for that offence. The details of that conviction are not material to these applications except that a deportation order was subsequently issued against the Father and he was prohibited from coming to Hong Kong again for life.

4. At that time, the Father was known by a different name. According to him, in order to have better luck, he changed his name in Pakistan and assumed a new identity before he came to Hong Kong again for business in the year of 2000.

5. The Father said when he was served with the deportation order in 1998, the contents of the order was not explained to him despite the fact that he had signed on the said order. Therefore, according to him, he was not aware that he was prohibited from entering the territories again.

6. He came to Hong Kong for a second time in the year of 2000 to continue with his business in mobile phone accessories. During an occasion in late 2002, he met the Mother in the waterfront of Tsimshatsui and they started courtship. After dating for a short period, they got married on 2 January 2003 despite the objection of the Mother’s family.

7. As far as the Mother is concerned, she was born in the city of Zhongshan, Kwangtung Province in the mainland. She migrated to Hong Kong in 2000 and lived with her father and other family members in Shamshuipo, Kowloon.

8. The Mother has been suffering from mental illness since about 1996 for which she has received medical treatment in the mainland. After her arrival in Hong Kong, her mental condition had been stable until her relapse in about March 2003.

9. After marriage, the parties lived in a rented flat in Shamshuipo. The Mother was found pregnant but marriage life has not been harmonious due to cultural differences and communication difficulties.

10. The Mother relapsed into mental illness when she was pregnant for about 4 months. She was admitted to Kwai Chung Hospital for about 5 weeks since March 2003. The Father claimed that the Mother had no mental illness at the time and the whole thing of relapse and hospitalisation was only a sham arranged by the family of the Mother to deceive him.

11. After the Mother’s discharge from Kwai Chung Hospital, the parties resumed cohabitation for a few months until the Mother gave birth to N on 5 August 2003. A few days after giving birth, the Mother left the Father and returned to her maiden family. The maiden family also moved its address in order to avoid the Father. Having failed to locate the Mother and N, the Father has tried various means to contact them including going to the responsible social worker’s office. Due to the request of the Mother, her whereabout was not revealed to the Father who has eventually made quite a scene at the Social Welfare Office.

12. Upon a follow-up medical appointment at the Yaumatei

Psychiatric Centre in mid-August 2003, the Mother expressed her frustration and fear towards the Father and requested the Medical Social Worker to arrange proper care for N. Subsequently, N was placed into the care of Po Leung Kuk in which she has remained up to the date of this trial.

13. The Father was granted legal aid and so he took out the present proceedings in order to gain the custody of N. The case came before HH Judge Carlson on 11August 2004 with a Social Investigation Report before him. The report recommended that custody be given to the Mother with reasonable access to the Father. Not being satisfied with the recommendation, the Father requested an international social investigation report be called for so as to allow the court to have a better understanding of his family background in Pakistan. He also requested to take out an application to bring N to Pakistan for her to be raised there. The Father’s request was acceded to and the matter was adjourned for the international social investigation report upon the Father’s undertaking to take out a summons for N’s removal out of jurisdiction.

14. The matters eventually came before me. There was one significant development after the calling of the 1st social investigation report. During sometime in October 2004, the Father was arrested by the police for the offence of illegal gambling. During police investigation, it was discovered that the Father has breached the previous deportation order which was issued against him in 1998 by coming to Hong Kong using a different name. He was charged and sentenced to an imprisonment term of 15 months. I am told that he is due to be released by 7 August 2005.

Application for Adjournment

15. At the beginning of this trial, the Father has made an application for adjournment saying that he needs legal representation. As a matter of fact, the Father has repeated this application for a number of times during the course of the trial.

16. In considering this application, I notice that the Father was legally aided at the initial stages of the case. He took out the originating summons for the custody of N with the help of a solicitor appointed by the Department of Legal Aid. However, the legal aid certificate was discharged in November 2004 and the Father has acted in person since then.

17. It is my view that between November 2004 and July 2005, the Father had ample opportunities to seek legal representation. If he still wanted to have legal aid, he could appeal against the decision of the Legal Aid Department if legal aid has been unreasonably withdrawn. If he wanted to have private representation, he could also do so without much difficulty. According to him, he was not a person without means. He said his family in Pakistan is quite well to do financially and he even offered $100,000 to the Mother if she would give up the contest for N.

18. At one stage, the Father did mention that he could not seek legal representation because he had been imprisoned. However, I understand that during his imprisonment, both his brother and uncle did pay him visits at the Stanley Prison for a number of times. He could have asked them to assist. Furthermore, by hearing the Father for 4 days in this trial, I do not think the Father is such an ignorant person that he did not know his right to engage private lawyers to represent him in this trial.

19. The application for N’s custody was first taken out in January 2004 which was 18 months ago. N is now placed in Po Leung Kuk pending the outcome of this trial. I do not think it will be in N’s interest if the trial is to be adjourned.

20. The Father’s application for adjournment was refused.

21. I now turn to the law and the merits of the applications.

The Law

22. The law governing the issue of custody during marriage is Section 10 of the Guardianship of Minor Ordinance, Cap 13. The relevant parts of the said section are as follows:

“10. Orders for custody and maintenance on application of either parent
(1) The court may, on the application of either of the parents of a minor (who may apply without next friend) or the Director of Social Welfare, make such order regarding-
(a) the custody of the minor; and
(b) the right of access to the minor of either of his parents,
as the court thinks fit having regard to the welfare of the minor and to the conduct and wishes of the parents.
(2) -----
(3) -----
(4) ----- “

23. The same welfare principle is expressed more clearly in Section 3 of the same Ordinance, which is as follows:

“3. General principles
(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 welfare of the minor as the first and paramount consideration and in having
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