黄 v. 陈

[English Translation - 英譯本]

CAMP 348/2023

[2024] HKCA 311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 348 OF 2023

(ON AN INTENDED APPEAL FROM FCMC NO 8031 OF 2023)

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Before: Hon Chu VP and Au-Yeung J in Court

Date of Judgment: 9 April 2024

J U D G M E N T

The Court:

A.  Introduction

1.We shall refer to the petitioner as “the father”, the respondent as “the mother” and the child of the family as “the daughter”.

2.In the present case, the mother removed the daughter from Hong Kong to the Mainland without permission. On 26 September 2023, the District Judge Jacqueline Lee (hereinafter “Judge Lee”) requested the mother to bring the daughter back to Hong Kong. On 1 November 2023, Judge Lee dismissed the mother’s application for leave to appeal. This is the mother’s fresh application by way of summons to the Court of Appeal on 15 November 2023 for leave to appeal, stay of execution order and application to adduce further evidence at the appeal hearing (hereinafter “summons of 15/11/23”)[1].

3.The application was determined on the basis of written submissions and relevant documents only without a hearing pursuant to Order 59 rule 2A (5)(a) of the Rules of the High Court, Cap 4A, Laws of Hong Kong.

B.  Background and the father’s summons of 11/9/23

4.Both the father and the mother are Mainlanders who got married in Hong Kong in 2018 and the daughter was born in Hong Kong in 2019. The daughter had been living and receiving education in Hong Kong before the summer holiday in 2023.

5.On 9 February 2023, the mother filed a petition for divorce (case no FCMC 1145/2023) with the court. Later, the mother withdrew the said divorce petition[2].

6.On 18 July 2023, the father filed a petition for divorce for the present case (FCMC 8031/2023) (hereinafter “the divorce petition”). In the same month, the mother took the daughter to the Mainland for summer holiday but she refused to bring her back to Hong Kong after the holiday. Neither did she tell the father the whereabouts of the daughter[3].

7.On 31 August 2023, the solicitors for the father personally served the divorce petition on the mother[4]. On 7 September 2023, a Form 4 was filed by the solicitors for the mother on her behalf to acknowledge receipt of the divorce petition[5]. The mother stated on the Form 4 that on 20 July 2023 she filed a petition for divorce in Shanghai[6].

8.On 11 September 2023, the father made a summons application (hereinafter “summons of 11/9/23”)[7] for the following which included: (1) the mother do return the daughter to Hong Kong at once and to return the daughter’s proof of identity as well as her travel document to the father; (2) the father be granted the interim custody, care and control of the daughter; and (3) the daughter be not removed from the jurisdiction of Hong Kong without leave until she attains the age of 18 years. The hearing date for the summons of 11/9/23 be fixed on 8 December 2023[8].

C.  Judge Lee’s order of 26/9/23 and judgment for leave to appeal of 2/11/23

9.On 26 September 2023, the mother personally attended the First Appointment hearing of the divorce petition handled by Judge Lee[9]. At the First Appointment hearing, Judge Lee enquired many times with the mother the whereabouts of the daughter, but she repeatedly answered “in the Mainland”. The mother firmly refused to disclose in which province or city the daughter was. She insisted that she would only provide and disclose the daughter’s information to the court and the social worker[10].

10.Judge Lee was of the view that the issue of the mother’s refusal to tell the father the whereabouts of the daughter after she was taken to the Mainland should be dealt with urgently by the court. Then the court brought forward the hearing of the father’s application for the interim custody of the daughter pursuant to the case management powers given to the court under Order 1B of the Rules of the District Court (Cap 336)[11].

11.After the hearing, Judge Lee made the following order (hereinafter “order of 26/9/23”)[12]:

(1)  The mother do return the daughter to Hong Kong within 7 days (namely on or before 3 October 2023);

(2)  The father do notify the court in writing within 7 days of the daughter’s return to Hong Kong;

(3)  The daughter be not removed from the jurisdiction of Hong Kong without leave.

12.In addition, Judge Lee also adjourned the hearing of the summons of 11/9/23 and the First Appointment to 31 January 2024, and directed the Social Welfare Department to submit, at least 14 days before the next hearing, a social investigation report and an international social investigation report in Chinese for recommendations on custody, care and control. Furthermore, Judge Lee directed the parties to file and serve the Children’s Form (Form J) on or before 10 October 2023 and to attend co-parenting class for at least 6 hours.

13.On 3 October 2023, the mother made an application by way of summons for leave to appeal and stay of execution of the order dated 26 September 2023. The mother’s grounds of the intended appeal were as follows[13]:

“Ground of appeal 1: [Judge Lee] had violated the principle of fairness and the rules of natural justice as she did not give [the mother] the opportunity to make submissions

[Judge Lee] did not give [the mother] the opportunity to explain why she removed the [daughter] from Hong Kong. She did not receive or consider the statement of [the mother] and refused to read the documents prepared by [the mother]. Therefore, [Judge Lee] had violated the rules of natural justice.

Ground of appeal 2: [Judge Lee] failed to take into account the care arrangements for the child of the family after her return to Hong Kong

[The father] did not mention in his affidavit about the care arrangements for [the daughter] to be returned to Hong Kong, nor did he make any actual suggestions on the access of [the mother] to the [the daughter]. [Judge Lee] was wrong in principle as she failed to take that into account before ordering [the mother] to bring [the daughter] back to Hong Kong.”

14.The mother also requested to adduce further evidence which included: (i) refuting the father’s assertion that he was the main carer; (ii) refuting the father’s assertion that he was not aware the daughter had gone to the Mainland to receive education; (iii) explaining the fact that the father verbally abused the daughter and the mother for years and neglected the physical and spiritual health of the daughter; (iv) bringing the daughter back to Hong Kong forcibly would not be in the best interest of the daughter as she had already adapted to the life in Shenzhen[14].

15.Judge Lee explained in paragraph 11 of the judgment for application for leave to appeal dated 1 November 2023 ([2023] HKFC 223) (hereinafter “Judge Lee’s judgment of 1/11/23”) that “the main purpose of [the order of 26/9/23] was to bring the daughter back to Hong Kong”, and the judge explained in paragraphs 25-27 and 34 as follows:

“25. The difficult part in the present case is that the mother is unwilling to let the father know the daughter’s whereabouts. I am very concerned about the way the mother handled the matter. The daughter was suddenly taken away from a familiar environment where she used to live and receive education for a long time which certainly would have an impact on a young child. If the daughter is left to live in the Mainland continuously and the mother firmly refuses to disclose the location of the daughter, the father will have no way to access the daughter, which obviously will not be in her best interest.

26. Having considered the statements of both parties and the background of the case, I am of the view that the daughter should be returned to Hong Kong as soon as possible, and it is necessary for the social worker to get involved in the investigation of the case to confirm the condition of the daughter.

27. And the court has taken into account of the fact that the mother in respect of custody would later request to remove the daughter to live in the Mainland. Therefore, it is also directed that an international social investigation report be called for. The mother also indicated at the hearing that investigation by the social worker was welcomed.

…

34. I understand that communication between newly divorced parents might be difficult to a certain extent. Upon making the order, I requested the father in particular to inform the court in writing about the daughter’s return to Hong Kong. The original intention of my order was that when the daughter returned to Hong Kong, further directions could be made regarding her care arrangements. The mother might make requests and applications regarding care arrangements of the daughter upon her return to Hong Kong or interim maintenance if necessary. But the mother did not make any such application. If the mother was minded to remove the daughter, it was her duty to make official application to the court.”

16.This shows that when Judge Lee exercised her case management power to bring forward the hearing of the summons of 11/9/23 and to make the order of 26/9/23, her intention was to bring the daughter back to Hong Kong so that the court could make further orders or directions regarding custody, care and control of the daughter according to her circumstances. Judge Lee has not yet made any judgment in respect of custody, care or control.

17.Having considered the written submissions of both parties, Judge Lee was of the view that the grounds of the intended appeal submitted by the mother had no reasonable prospect of success:

(1)  Firstly, the court had given the mother sufficient opportunity to make representations in respect of the issue of whether or not to return the daughter to Hong Kong and her arguments had been taken into account[15].

(2)  Secondly, regarding the care arrangements of the daughter upon her return to Hong Kong, as said above, the court would make arrangements after her return[16].

(3)  Thirdly, the mother’s request to adduce new evidence was contrary to the principle of Ladd v Marshall, as it was obvious that the mother was able to adduce evidence at the hearing on 26 September 2023, but she only chose to act according to her own wishes and refused to adduce evidence to the court and the father according to the legal procedure. Moreover, the said new evidence did not have great impact on the main purpose of the order, namely the decision of returning the daughter to Hong Kong. Judge Lee was of the view that the social investigation report prepared by the Social Welfare Department would assist the court in assessing the actual circumstances of the daughter and the subsequent care arrangements. The judge would not give much weight to the assertions of either party at this stage[17].

18.For the above reasons, Judge Lee refused the mother’s application for leave to appeal. And based on the same reasons, Judge Lee considered that the mother had not reached the minimum requirement of obtaining a stay of execution order. As a result, the mother’s application for stay of execution was refused. Judge Lee ordered the mother to pay the father the costs of the summons application dated 3 October 2023[18].

D.  The mother’s application dated 15 November 2023 for leave to appeal and her request for adducing further evidence

D1.  Grounds of the intended appeal and adducing further evidence

19.The mother in her draft notice of appeal put forward three grounds[19] of the intended appeal which this court summarized as follows:

(1)  The Judge did not give the mother the opportunity to adduce evidence before the determination was made;

(2)  The court failed to take into account the care arrangements of the daughter upon her return to Hong Kong;

(3)  The mother requested to adduce new evidence to show that the daughter should not be ordered to return to Hong Kong in the circumstances that the decision had not been reached on jurisdiction dispute over Hong Kong and the Mainland and a social investigation report and an international social investigation report were unavailable.

20.In addition, the new evidence the mother requested to adduce was set out in her second affirmation[20] which was enclosed in her first affirmation[21] dated 22 November 2023. The new evidence set out at paragraph 3.3 of the draft appeal of the mother was summarized into the following six points[22]:

(1)  Regarding the progress of the divorce proceedings of the mother and the father in the Mainland, the Mainland court is now in the process of deciding whether to exercise jurisdiction over the divorce of the parties;

(2)  The father and the mother are only holders of Hong Kong work visas, they are not Hong Kong permanent residents;

(3)  It is the mother (not the father) who is the main carer of the daughter as the father has always been away from Hong Kong;

(4)  The maternal grandparents who assist in taking care of the daughter are now residing with the mother in the Mainland. They are only holding social visit visas and the issuance of which depends on the mother’s Hong Kong work visa;

(5)  The father has a record of harassing the mother, her parents and her daughter, including an incident of the father’s attempt to take away the daughter at the entrance of her kindergarten on 1 November 2023;

(6)  The daughter had attended kindergarten and lived with the mother and her parents in Shenzhen. However, due to what happened on 1 November 2023, the mother and her parents currently have moved back to their hometown in Shanghai. The mother is now making arrangements for the daily life of the daughter and seeking assistance from the Mainland court in respect of the father’s harassment and what happened on 1 November 2023.

21.The mother further alleged in her third affirmation[23] dated 5 January 2024 that the father who attempted to take away the daughter on 15 November 2023 had hit and injured the mother’s parents. After the incident, the daughter suffered from post-traumatic stress disorder, psychosomatic disorders and symptoms of anxiety. The father even continued to harass the daughter, the mother and her parents. The mother did not apply to adduce new evidence in this regard and this new evidence was neither mentioned in her draft appeal. The mother only stated in her submissions that she wished to rely on this new evidence[24].

D2.  Relevant legal principles

22.According to section 63A(2) of the District Court Ordinance (Cap 336), “leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that — (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard”.

23.In But Wai Sum v But Wai Keung [2022] HKCA 1779, the Court of Appeal reiterates the relevant legal principles in respect of adducing new evidence at the stage of leave to appeal:

“17. Procedurally, an application for leave to adduce new evidence could not be entertained until after leave to appeal has been granted if it is necessary: see Man Lin Heung v 梁根林 & Ors [2019] HKCA 846, footnote 1. Therefore, we should now consider whether the plaintiff’s grounds are reasonably arguable that leave should be granted for him to adduce such new evidence.

18. According to the principles in Ladd v Marshall [1954] 1 WLR 1489, the admission of new evidence in an appeal would only be justified when the following conditions are fulfilled:

(1) the evidence could not have been obtained with reasonable diligence for use at the trial;

(2) the evidence, if admitted, would have an important impact on the result of the case, though it need not be decisive; and

(3) the evidence must be apparently credible, though it need not be incontrovertible.”

24.As for the evidence in respect of the “matters which have occurred after the date of the trial or hearing” (Order 59 rule 10(2) of the Rules of the High Court, (Cap 4A), the Court of Appeal reiterates in EBS v NTCD [2023] HKCA 425, paragraph 22, that the Ladd v Marshall principles do not apply, and the applicable principles are instead those set out below (paragraph 33):

(1)  The Court of Appeal has a discretion in relation to admitting such fresh evidence but it should always be exercised sparingly with due regard to the need for finality in litigation;

(2)  It is impossible to produce an exhaustive list of considerations relevant to the exercise of that discretion, but the factors such as the extent to which the fresh evidence may affect the award of damages, the time the fresh evidence emerges and the conduct of the parties will always be material;

(3)  The court shall take into account all the circumstances, before, during and after trial. The new evidence should be admitted in all cases where it would be an affront to one’s sense of fairness not to admit it;

(4)  The new evidence must substantially affect a basic assumption made at the trial.

25.Based on the legal principles above, at this stage we shall only consider whether the mother’s grounds are reasonably arguable that she should be granted leave according to the legal principles in Ladd v Marshall or EBS v NTCD to adduce such new evidence in the appeal. This court will only formally deal with the application to adduce new evidence after the leave to appeal is granted.

E.  Discussion: the mother’s new evidence

26.The mother alleged that the first condition of Ladd v Marshall was fulfilled by the new evidence she requested to adduce. It was because she was unable to file any affidavit to explain her position without leave from the court. When Judge Lee decided to bring forward and deal with the father’s summons of 11/9/23 at the hearing on 26 September 2023, she did not direct the mother to adduce evidence either. Therefore, she was in fact never given the chance to adduce evidence[25]. In addition, part of the mother’s new evidence was about the incidents took place after 26 September 2023[26]. The mother also alleged that the new evidence she requested to adduce satisfied the second and third conditions of Ladd v Marshall[27]. Under the circumstances, the mother asserted that the Court of Appeal should take into account such new evidence.

27.The mother further asserted that even if the new evidence could not satisfy the conditions of Ladd v Marshall, for the welfare of the children, the court could still consider such new evidence (Hong Kong Civil Procedure 2024, paragraph 59/10/12 [R#2])[28].

28.This court does not agree with the mother’s assertion. Even if the mother really had no chance to adduce such new evidence before Judge Lee made the order of 26/9/23, it obviously would not have any influence on Judge Lee’s order of 26/9/23. It could not satisfy the second condition of Ladd v Marshall or the condition mentioned in EBS v NTCD that “the new evidence must substantially affect a basic assumption made at the trial”.

29.First of all, regarding the first point of the new evidence that Judge Lee was already aware that the parties were going through a divorce procedure in the Mainland where the issue of jurisdiction was being dealt with by the Mainland court[29], the judgment of the Mainland court, in any event, will not affect the jurisdiction of Hong Kong court. The first point of new evidence would not have any influence on Judge Lee’s decision regarding the daughter’s return to Hong Kong.

30.Regarding the second to the sixth points of the new evidence, as well as the new evidence stated in the mother’s third affirmation (see paragraph 20 above), as stated above, Judge Lee’s order of 26/9/23 only requested the daughter to be returned to Hong Kong so that the court, having regard to the daughter’s circumstances, could make further order or give further directions on the daughter’s custody, care and control. These points of new evidence only concern the daughter’s custody, care and control, which would not have any influence on Judge Lee’s decision of bringing the daughter back to Hong Kong. On the contrary, if the father had really harassed the mother, her parents and daughter, or even hurt the mother’s parents in the Mainland, whereas the daughter indeed suffered from post-traumatic stress disorder, psychosomatic disorders and symptoms of anxiety, it would only be appropriate for the mother to bring the daughter back to Hong Kong as soon as possible, so that the social worker could intervene in the matter and the court could give further directions.

31.For the above reasons, the mother has no reasonably arguable ground to be granted leave according to the legal principles of Ladd v Marshall or EBS v NTCD so as to enable her to adduce such new evidence in the appeal. This court also does not agree that it is necessary to consider such new evidence for the welfare of the daughter.

32.In fact, the mother’s second affirmation together with its exhibits consist of 195 pages in total[30], but most of them are related to her acquaintance with the father, their marriage life, her pregnancy experience, the child care arrangement after the daughter was born, the relationship among the father, the mother, her parents and her daughter and the current situation of the daughter, which obviously are irrelevant to the mother’s application for leave to appeal and her grounds of the intended appeal.

33.However, the father filed a 28-page affirmation[31] with 14 exhibits[32] in reply to the mother’s second affirmation. And what is more, the mother then filed an affirmation of 23 pages[33] with 18 exhibits[34] in reply to the father’s affirmation and adduced further evidence.

34.Obviously, what the mother and the father did was a deviation from the main purpose of the present leave to appeal which was contrary to the legal procedure. Firstly, the mother’s new evidence should be relevant to her application for leave to appeal and the grounds of the intended appeal. She should not have added a great deal of evidence relating to custody, care and control of the daughter in the present application, in particular, after Judge Lee has made it clear that the court would give further directions in this regard after the daughter’s return to Hong Kong. The present application for leave to appeal is not an appropriate venue to deal with the custody, care and control of the daughter.

35.Secondly, the court will formally deal with the application of adducing new evidence only after the leave to appeal is granted. Under the circumstances, the father should give reply (if any) to the new evidence only after the leave to appeal is granted. However, the father chose to reply to the mother’s new evidence at this stage and he even adduced much evidence relevant to his assertion that he instead was the main carer of the daughter. It is clear that the father also followed what the mother did. He did not follow the legal procedure and deviated from the main purpose of the present application for leave to appeal.

36.This court expects the parties to follow the legal procedure and to assist the court in dealing with the application. In the present application, the mother and the father had submitted a large amount of irrelevant evidence and disputed about the custody, care and control of the daughter, which obviously did not achieve that purpose.

37.Moreover, on 13 March 2024, the legal representative of the mother informed the court in writing that The First Intermediate People's Court of Shanghai Municipality on 29 January 2024 dismissed the father’s appeal and held that the Mainland court has jurisdiction over the divorce proceedings between the parties. And then Judge Lee on 31 January adjourned the First Appointment to 3 June and granted leave to the mother to file and serve an application by way of summons on or before 7 February to strike out, on the grounds of jurisdiction, the petitioner’s divorce petition dated 18 July 2023 (hereinafter “the said summons”) and its affidavit. The said summons would be dealt with together at the hearing dated 3 June 2024. The mother issued the said summons on 7 February.

38.This court agrees with the submissions of the father’s legal representative that the mother should not have adduced new evidence in writing without leave after submissions. In any event, the mother had never applied for a stay of the matrimonial proceedings before the issuance of the said summons. The Shanghai court’s decision will not affect the correctness of Judge Lee’s judgment. And this court is neither a proper forum to deal with jurisdiction.

F.  Discussion: the mother’s application for leave to appeal

F1.  Ground of the intended appeal (1): the Judge did not give the mother the chance to adduce new evidence before making the determination

39.The mother alleged that since Judge Lee suddenly brought forward the hearing of the summons of 11/9/23, she “did not give [the mother] the chance to adduce evidence to explain the current arrangements for the [daughter] and the reasons for [the mother] and the child of the family to leave Hong Kong”, and the daughter’s welfare had not been taken into account[35].

40.This court reiterates that Judge Lee exercised the power of case management to bring forward the hearing for the summons of 11/9/23 and to make the order of 26/9/23 only for the daughter to return to Hong Kong so that further orders or directions could be made on custody, care and control of the daughter with regard to her circumstances. In this regard, the Court of Appeal explains in黎 v 凌 [2017] 5 HKLRD 629, paragraph 63 that:

“In the present case, the Family Judge made an order for the return of the Child to Hong Kong. It is an order to facilitate the court’s exercise of its jurisdiction over the custody of the child and as such an order that the court could make under section 19(1). By the same token, the court can make an order directing the taking parent to deliver the child to the other parent with a view to securing the return of the child to Hong Kong. In the former case, the taking parent would be responsible for bringing the child back whilst in the latter it is expected that the taking parent simply deliver the child to the other parent at the place where he has been taken to so that the other parent can bring the child back to Hong Kong.”

41.It is not disputed that from the birth of the daughter till she was taken to the Mainland by the mother during the summer holiday, she had been living and receiving education in Hong Kong. According to the general principle set out in C v N [2016] 2 HKLRD 765 at paragraph 15(b) [P#2], normally the best interests of children are best secured by having their future determined in the jurisdiction of their habitual residence.

42.The mother failed completely to establish that Judge Lee was wrong in law, procedure, factual basis or the exercise of her discretion. In fact, the mother also agreed that the court has the right to order the removed child of the family to return to Hong Kong before the court’s decision on the child’s custody[36]. She only questioned what considerations should be given and what procedure should be gone through by Judge Lee before she made the order, including the consideration of the mother’s evidence or the directions for the mother to adduce evidence[37]. However, as stated above, the alleged new evidence to be adduced by the mother was in fact not related to the question of whether the daughter should be taken back to Hong Kong. The mother’s proposition does not have any or any reasonable prospect of success.

43.Moreover, as explained by Judge Lee[38], since the mother firmly refused to disclose the whereabouts of the daughter and the Judge was of the view that the daughter should be returned to Hong Kong as soon as possible, it was necessary for a social worker to get involved in the investigation of the case to confirm the condition of the daughter. This shows that Judge Lee had taken into account of the welfare of the daughter and she believed that the daughter should be returned to Hong Kong as soon as possible. The mother’s argument is unfounded.

44.For the above reasons, ground of the intended appeal (1) does not have any reasonable prospect of success.

F2.  Ground of the intended appeal (2): the court failed to consider the care arrangements for the daughter after her return to Hong Kong

45.The mother alleged that Judge Lee only ordered the daughter to be returned immediately to Hong Kong without considering her care and education arrangements after her return. The Judge also failed to consider whether the father and the mother would be able to provide suitable care for the daughter in Hong Kong. When Judge Lee made the order of 26/9/23, she did not give sufficient consideration to the welfare of the daughter[39].

46.The mother had obviously some misunderstandings about Judge Lee’s order of 26/9/23. This court again reiterates that Judge Lee’s order of 26/9/23 only commanded the daughter to be returned to Hong Kong. Judge Lee also made it clear that she would make further directions in respect of custody, care and control of the daughter after her return. For this purpose, Judge Lee directed the father to inform the court in writing within 7 days after the daughter’s return to Hong Kong. She even directed the Social Welfare Department to submit a social investigation report and an international social investigation report in Chinese for recommendations on custody, care and control. We see nothing improper for the course taken by Judge Lee.

47.In addition, the mother alleged that Judge Lee before making the order should allow the parties to present evidence on the care arrangements for the daughter or to call for a social investigation report and an international social investigation report[40]. This argument does not hold water. The court would consider the evidence on the care arrangements for the daughter, the social investigation report and the international social investigation report when the question of custody, care or control of the daughter is being dealt with. However, such evidence and reports have nothing to do with the question of whether the daughter should be returned to Hong Kong. Moreover, it is necessary for the Social Welfare Department to interview the daughter when the social investigation report is being prepared. The mother’s argument is not reasonable.

48.The mother cited BS v BK [2018] HKCFI 1814 [R#8] and said that in that case when the court dealt with the application made under the Convention on the Civil Aspects of International Child Abduction and Child Abduction and Custody Ordinance (Cap 512) for the return of a child who had been removed to Hong Kong back to Singapore, a social welfare investigation report was first sought for a better understanding of the circumstances of the child and the parties were given the opportunity to give evidence and make submissions before the decision was made to send the child back to Singapore. However, in the present case, no report was sought before the order was made to return the daughter to Hong Kong[41].

49.The mother’s proposition does not have any or any reasonable prospect of success either. As pointed out by the father[42], the present case was not under the Convention on the Civil Aspects of International Child Abduction. In BS v BK the court did not state that a social worker report was a must before the child was returned to Singapore either. In any event, the court has the power to deal with the case differently according to the circumstances of each individual case. This court notes in particular the child in BS v BK was in Hong Kong and could be interviewed by the social worker (BS v BK, paragraph 105). In the present case, the daughter was in the Mainland, Judge Lee was of the view that the daughter should be returned to Hong Kong as soon as possible so that social worker could get involved in the investigation to confirm the circumstances of the daughter (see Judge Lee’s judgment of 1/11/23, paragraph 26). The course taken by Judge Lee was completely reasonable.

50.Regarding the allegations made by the mother before Judge Lee that the father treated the daughter badly, he also harassed the mother’s parents and he was not the main carer[43]; all these will be taken into account when the family court deals with the daughter’s custody, care or control later after the daughter’s return to Hong Kong. All these allegations are not related to the order for the daughter to return Hong Kong.

51.For the reasons above, ground of the intended appeal (2) does not have any reasonable prospect of success.

F3.  Ground of the intended appeal (3): new evidence shows that the daughter should not be ordered to return to Hong Kong in the circumstances that the decision has not been reached on jurisdiction dispute of the divorce proceedings over Hong Kong and the Mainland and a social investigation report and an international social investigation report are unavailable

52.The mother alleged that if Judge Lee allowed her to adduce the six points of evidence set out in the aforesaid paragraphs 20(1) to (6), “the daughter obviously should not be ordered to return to Hong Kong in the circumstances that the decision has not been reached on jurisdiction dispute of the divorce proceedings over Hong Kong and the Mainland and a social investigation report and an international social investigation report are unavailable”[44]. The mother also relies on her third affirmation and the new evidence (see paragraph 21 above).

53.Firstly, this court has explained in section E above that the mother’s new evidence would not have any impact on Judge Lee’s order of 26/9/23.

54.Secondly, as the counsel for the mother said in the skeleton submissions, the mother did not mention in the leave application to the family court that the court should only decide whether to make an order on the daughter’s arrangements after the question of jurisdiction has been dealt with[45].

55.Pursuant to Order 59 rules 2B and 14(4) of the Rules of the High Court, (Cap 4A), an application for leave to appeal must first be made to the court below, except where there are special circumstances which make it impossible or impracticable to apply to the court below.

56.Counsel for the mother explained in the submissions that as the mother only engaged a counsel, Ms Christie Lee, to make an application for leave to appeal to Judge Lee, whereas in the present application to the Court of Appeal, she engaged two counsel who therefore made “slight amendments” to the contents of the draft notice of appeal. However, it obviously did not constitute any “special circumstances which make it impossible or impracticable to apply to the court below” and the additional new grounds of the intended appeal are not just “slight amendments”[46]. The mother’s grounds of the intended appeal should not be taken into account by the court.

57.In this regard, this court reiterates the ruling in paragraphs 37 and 38 above.

58.Thirdly, the mother stated that the daughter should not be ordered to return to Hong Kong without any social investigation report or international social investigation report. The mother’s argument is unfounded. We repeat paragraph 47 above.

59.Fourthly, the mother claimed that article 13 of the Convention on the Civil Aspects of International Child Abduction should be considered by the court, in particular when “(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” [47]. In this regard, the mother invited the Court of Appeal to take into account of her evidence of the father’s alleged attempt to take away the daughter and hurt the mother’s parents in the Mainland before; the daughter’s suffering from post-traumatic stress disorder, psychosomatic disorders and symptoms of anxiety; and the father’s continuous harassment[48].

60.However, as we have explained in paragraph 30 above, even if the allegations were true, they would not cause any hindrance to the daughter’s return to Hong Kong. In addition, the Convention on the Civil Aspects of International Child Abduction does not apply to the present case. Although the court would still take into account of article 13 of the Convention (C v N paragraph 15(e) [P#2]), the present case obviously does not resemble the situation of article 13(b) of the Convention. This court again reiterates that the family court would make further directions in respect of custody, care and control of the daughter after her return. If necessary, the mother may adduce relevant evidence to the family court for consideration in making further directions. This is the reason why Judge Lee requested the daughter to be returned as soon as possible and the social worker to intervene so as to confirm the daughter’s situation.

61.For the above reasons, ground of the intended appeal (3) does not have any reasonable prospect of success.

G.  Order and costs

62.For the reasons above, we are of the view that the mother’s grounds of the intended appeal have no reasonable prospect of success, and there is no other reason in the interests of justice. We therefore refuse the mother’s application for leave to appeal against the order of 26/9/23.

63.In the circumstances, we also refuse: (1) the mother’s application to stay the judgment dated 1 November 2023 of Judge Lee’s refusal of the application for leave to appeal and costs; (2) the mother’s application to stay Judge Lee’s order of 26/9/23 until the final disposal of her appeal; and (3) the mother’s application for adducing further evidence.

64.All in all, we order that the mother’s summons application of 15/11/23 be dismissed.

65.As the mother’s application by summons of 15/11/23 is totally without merit, pursuant to Order 59 rule 2A (8) of the Rules of the High Court, we order that no party may under rule 2A (7) of that Order to request the determination to be reconsidered at an oral hearing inter partes.

66.The father requested the mother to pay his costs[49]. As a fight for the child of the family is involved in the present case, the general principle on costs should be no order as to costs. In addition, the father has followed the mother to add a large amount of evidence irrelevant to the present application for leave to appeal. Having considered all the circumstances, it is decided that there be no order as to costs.

67.At last, we notice that the family court made an order on the 31 January 2024 to adjourn the First Appointment and the Children Appointment to 3 June 2024 and to deal with the mother’s summons of 7/2/24 together at that hearing.

68.Just like what we have mentioned in paragraphs 21, 30 and 60 above, the mother accused the father of harassing her parents and daughter, and even hurting her parents, and she alleged that the daughter was suffering from post-traumatic stress disorder, psychosomatic disorders and symptoms of anxiety. As far as these accusations and allegations are concerned, we have not made any findings of facts. However, due to these accusations and allegations, the family court should let the social worker to get involved as soon as possible and give further directions on custody, care and control of the daughter.

Ms Helen Au, instructed by K W Wong & Co., for the Petitioner.

Mr Ken Chan and Ms Christie Lee, instructed by Hugill & Ip Solicitors, for the Respondent.

Translated by the Court Language Section of the Judiciary and vetted by Mr Justin Yuen, solicitor.