Wang I-Chu Jeff v Chen Cheng Shih

• Jurisdiction: Singapore
• Judge: Koh Juat Jong
• Judgment Date: 31 August 2000
• Neutral Citation: [2000] SGDC 34
• Published date: 19 September 2003
• Court: District Court (Singapore)

Judgment

GROUNDS OF DECISION

Background

The parties were married on 10 February 1980 in the USA. They have two children: a girl born in 1984 and a boy born in 1987. The divorce petition was filed in 1997. The decree nisi to dissolve the marriage was granted on 9 June 1998.

2 There was also a custody proceeding under Originating Summons No. 5105 of 1997. On 8 September 1997, an interim order was made requiring parties to hand the passports of the two children to their respective solicitors and prohibiting parties to bring the children out of jurisdiction unless consent of the other party or leave of Court was obtained. This interim order was affirmed on 17 December 1997 at the hearing of an application to vary the access order.

3 Then on 3 November 1999, at the hearing of the ancillary matters, the following orders (amongst others) were made:

(a) The Petitioner and the Respondent shall have joint custody of the two children with care and control to the Respondent and reasonable access to the Petitioner as follows:

(i) alternate weekends from 2 p.m. on Saturday to 6 p.m. on Sunday;

(ii) half of the school holidays for the period when there is no summer school programme;

(iii) half of Chinese New Year holidays; on the first day of Chinese New Year on alternate year commencing from the year 2000;

(b) Both the children’s passports shall be retained at all times by solicitors and neither party shall bring the children out of jurisdiction without the prior consent of the other party or leave of Court.

4 On 10 January 2000, the Petitioner applied for leave to commence committal proceedings. Leave was granted on 19 January 2000. The summons-in-chambers ("SIC") for an order of committal against the Respondent for breaching the order of court was filed on 20 January 2000. It stated the following:

(a) without the prior consent of the Petitioner or leave of Court, the Respondent wrongfully retained the passports of the two children from about 22 November 1999 onwards and failed or refused to return the passports to solicitors; and

(b) without the prior consent of the Petitioner or leave of Court, the Respondent wrongfully brought the two children out of jurisdiction on or about 27 December 1999.

5 The SIC came before me for hearing and I made the following findings:

(a) the Respondent had breached the order of Court date 3 November 1999 by not returning the passports of the two children to solicitors in accordance with the order;

(b) the Respondent had taken the two children out of jurisdiction without the consent of the Petitioner or leave of Court.

For the breach under paragraph (a), the Respondent was warned not to further act in breach and was also fined $500 to be paid within two weeks, in default, she was to be committed to prison for 3 days. For the breach under paragraph (b), no punishment was imposed. She was further ordered to pay for the costs of the proceedings fixed at $1,000 to be paid within one month.

6 The Respondent has appealed against the whole of the order.

Preliminary Objection

7 The Respondent made a preliminary objection that the SIC did not specify the exact period of the breach and therefore was defective. The counsel argued that the phrases "from about 22 November 1999 onwards" and "on or about 27 December 1999" were vague.

8 The Petitioner counsel explained that the Respondent was to return the passports to the solicitors on 22 November 1999 but she did not. The actual period she held on to the passports would be determined at this hearing. The date of 27 December 1999 was the date she brought the children out of jurisdiction. She argued that the "charges" framed were clear.

9 I dismissed the preliminary objection. From the affidavit of the Respondent, she was clear as to what the Petitioner was accusing her of. She explained the events which led to her retaining the passports from 22 November 1999. She knew when she returned the passports to her solicitors subsequently. She also dealt with the events that led to her taking the children with her to the USA on 27 December 1999 without any problem. The acts complained of were in my view set out sufficiently to enable the Respondent to answer the case and to show cause.

Retaining the Passports

10 The Respondent obtained the consent of the Petitioner to take the children on a trip from 20 November to 21 November 1999. The passports of the children were thus given to her by her solicitors M/S Ann Tan & Associates. However, she did not go on the trip. She said that that was because she found that the dependant’s pass of the children was invalid. On 22 November 1999, she brought the passports to the Immigration Department for the renewal of the pass. The passports were retained by the Immigration Department. She collected them with the renewed pass on 27 Nov 1999.

11 Respondent said in her affidavit that she was in the midst of changing lawyers during that time. On or about 25 Nov 1999, she appointed M/S Alfred Dodwell who wrote to M/S Ann Tan & Associates on 25 Nov 1999. There was some confusion during the cross-examination as to the involvement of Mr Dodwell who was the counsel conducting her case in court in this hearing. To resolve the possible issue of conflict, parties agreed at the hearing to the following facts (NE page 28):

(a) On 25 Nov 1999, M/S Alfred Dodwell wrote to M/S Ann Tan & Associates stating that M/S Alfred Dodwell had been instructed to take over the conduct of the matter from M/S Ann Tan & Associates;

(b) M/S Ann Tan & Associates replied on the same day that they had no objection and informed M/S Alfred Dodwell to advise Respondent to return to M/S Ann Tan & Associates the passports urgently pursuant to the order of Court.

(c) After that, Mr Alfred Dodwell spoke to Mr Sarjit Singh of M/S Ann Tan & Associates on several occasions and told Mr Sarjit Singh that he had informed and reminded the Respondent to sort out the issue of passports with M/S Ann Tan & Associates.

From 2 December 1999, M/S Alfred Dodwell communicated with the Petitioner’s solicitors on the issue of access of children. The Petitioner’s solicitors copied their letters to M/S Alfred Dodwell also to M/S Ann Tan & Associates as the notice of change of solicitors had not been filed. On 15 December 1999, M/S Alfred Dodwell was seriously considering if it would be in her interest to act for her as Mr Dodwell had overseas reservist training in January 2000. They informed the Petitioner’s solicitors on 15 December 1999 that they were unlikely to act for the Respondent who was in the process of appointing another firm. However, in the meantime, the Petitioner’s solicitors could continue to write to them and they would revert with instructions of the Petitioner. The Respondent subsequently instructed M/S Drew & Napier who acted for her in the hearing of the appeal in the High Court (against the orders made on 3 November 1999). On 22 December 1999, the Respondent told the Petitioner in an email to refer matters to her lawyer Mr Randolf Khoo. Mr Khoo was from M/S Drew & Napier. The warrant to act for M/s Drew & Napier was signed on 11 January 2000. Two days after that, Mr Khoo asked the Respondent to return the passports and she did so on 15 January 2000.

12 In Court, the Respondent said that on 15 December 1999, M/S Alfred Dodwell agreed to liaise with the Petitioner’s solicitors on her behalf only as a friend and not as her solicitors as she had not paid them. She also said that even though on 22 December 1999, she told the Petitioner to refer matters to her lawyers Mr Randolph Khoo, Mr Khoo was only acting as her communication channel. He had not been paid and not legally bound to act for her. Mr Khoo only agreed to act for her after he completed his reservist training on 26 December 1999. However, his secretary would get in touch with him or contact the Respondent if there was any urgent matter to be dealt with. She was thus during the relevant period acting for herself.

13 She said that she would only give the passports to her lawyers. She did not do so as matters were in a state of flux.

14 She said that she collected the passports from the Immigration Department on 27 Nov 1999. That was a Saturday. On 29 November 1999, Monday, she went to see Mr Sarjit Singh of M/S Ann Tan & Associates on how he would work with Mr Dodwell. Mr Singh told her that he was no longer her solicitor. She said that the passports issue was not addressed on that day and also not after that. She did not receive any further instruction from Mr Singh on the passports. However she agreed with the contents of the letter from M/S Ann Tan & Associates to the Petitioner’s solicitors dated 27 December 1999 exhibited at page 85 of the Petitioner’s Statement :

"On Monday, 22^nd November 1999, we reminded our client to return the passports to us to which she replied that she would do so the next day as she had forgotten to bring the passports to return to us. On 24^th November 1999, we wrote to her to remind her again to return the passports. On 25^th November 1999, M/S Alfred Dodwell wrote to us stating that they had been instructed to take over conduct of the matter for the Respondent. We replied on the same day that we had no objections to their taking over and informed Mr Alfred Dodwell to advise the Respondent to return us the passports urgently pursuant to the Court Order."

15 The order of Court dated 3 November 1999 did not specify that the passports should only be returned by her to her solicitors. I noted however that the earlier court orders dated 8 September 1997 and 17 December 1997 had stated that the parties were to respectively hand over the passports to their respective solicitors. Even if it was thus reasonable for the Respondent to take the position that she was only required to return the passports to her own solicitors, there was no reason for her to hold the passports during the period.

16 She knew the importance of complying...