Ycr also known as Cry v. Ysj Nee Sje

FCJA 2423/2018

[2025] HKFC 157

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

JOINT APPLICATION NO. 2423 OF 2018

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BETWEEN

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J U D G M E N T

( Leave to Appeal - Relocation

By paper disposal)

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1.This is the first applicant father’s (“F”) leave to appeal application dated 9 June 2025, against my decision in the Relocation Judgment handed down on 26 May 2025 (the “Relocation Judgment” / “Judgment”). By this decision, I granted leave for the second applicant mother (“M”) to permanently relocate the two children of the family, H and G, to Kelowna, British Columbia, Canada.

2.W filed her submission on 13 June 2025 opposing the application.

3.Both parties act in person at the relocation hearing as well as for this leave to appeal application.

The Background

4.The trial took place on 12 to 14 August 2024.

5.The background of the parties and the family were set out in the Relocation Judgment, and I shall not be repeating it here. Where relevant, reference will be made to paragraphs in the Judgment in response to F’s application here.

Legal principles on Leave to Appeal

6.Under Section 63A(2) of the District Court Ordinance, leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

7.The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF HCMP 288/2011. Even if this threshold requirement is met, the Court still has a discretion to refuse leave (Hong Kong Civil Procedure 2025, 59/2A/4).

8.The F’s appeal is directed to an order made in the exercise of my discretion in the M’s relocation application. It is trite to say that where the court below exercised a discretion, the appellate court would only intervene when it considered that the judge below had exceeded the generous ambit within which the reasonable judicial disagreement is possible, and was in fact plainly wrong, and not merely because the appellate court preferred a solution which the judge had not chosen (G v G [1985] 2 All ER 225; RK v YS, HCMP 1969/2012 (date of judgement 1 November 2012 (CA)).

F’s application for leave to appeal

9.It was indeed unhelpful that, despite F having cited 12 cases in his draft grounds of appeal and submission, not only has he failed to produce copies of the case law he cited, all the citations do not have the year in which the judgments were delivered; furthermore, there is no cross reference to where in the judgments (as in paragraph numbers) are the discussion on those legal principles he relies on.

10.F has 32 exhibits to his draft grounds of appeal with an index, to which I will comment as follows, I will group them into the following categories:

a. 6 documents say they are “attached”, and there is no bundle reference. These are the F’s Judicial Recusal summons, Relocation Judgment, his Opening submission for CDR hearing in June 2023, his opening and closing submission for the relocation hearing, and his detailed statement of proposals. Out of these, only the Judgment was attached. Given I have access to the other documents via the court files, I am able to make reference where appropriate.

b. 2 documents say they are attached with no bundle reference, hence not presented at trial. Item 23 - “[The International School] Collaborative Teaching Guide” and Item 30 - “[The International School] - New Learning Support Addition”, neither of these were in the trial bundle. Item 30, in particular, shows a partial email chain which should have 3 messages but only 2 were shown. As these are evidence that comes post-trial, they will not be considered without leave of the Court.

c. Exhibit 2 Trial transcript was not attached.

d. For the rest of the 23 exhibits cited in his index which have bundle references, F has selectively reproduced only 8 to his documents for appeal.

11.F has 7 grounds in his Draft Grounds of Appeal, set out as below.

Ground 1: Fundamental procedural irregularities – Failure to address pending Recusal Application before Judgment

12.F had applied for my recusal by his application dated 6 May 2025, less than three weeks before I was due to hand down the Relocation Judgment (on 26 May 2025); taken out almost 9 months after the hearing was conducted, and more than 2 months after he received the trial transcript.

13.When I turned down his recusal application in limine on 5 June 2025, F appealed against my decision. My leave to appeal decision is handed down on the same day as this leave to appeal decision. The draft grounds of appeal and decisions are set out therein and I will not repeat them here.

14.F also says that the delay in his recusal was my fault in failing to provide him with official trial transcripts despite his “numerous requests”. On the court records were only two letters from F on this topic: One dated 19 September 2024 (date of H’s filing of closing submission), asking for transcript so as to “allow a representative from Withers to examine the admitted witness coaching that occurred during trial.” (For the record, there was no admission to “witness coaching” at trial, and Withers has never been on record representing F, either before the Relocation trial, or since.) Then again on 24 February 2025, bringing up the issue of witness coaching again, and added at the end of the letter that he was yet to receive a response to his request dated 19 September 2024 for trial transcript. While I did wonder why the transcript was requested only after both parties have filed their closing submission, I do acknowledge there was oversight on our part in responding promptly to his ask for transcript, the trial transcript was made available to F on 26 February 2025, with a note of apology for the delay.

15.Be that as it may, F labours under the misconception that the recusal application post-trial would prevent the handing down of the judgment on a case that I have heard back in August 2024, and complains of my “procedural impropriety” in handing down the Judgment; he has clearly misunderstood the operation of a recusal application. His arguments under this ground are not accepted, and I do not see that there is any reasonable prospect of success on appeal.

Ground 2: Errors in assessment of evidence – Misinterpretation of H’s needs & disregard for [the International School] support system

16.In brief, F says I have erroneously characterized his son H as “highest risk” student on the verge of academic failure, which is contradicted by substantial evidence of “consistent improvement and success within [the International School]’s proven support framework”. He also says I have disregarded this while uncritically accepting speculative claims about Kelowna.

17.The categorization of “highest risk” did not come from me but from M, reference is made to §114 of the Judgment; F has not put forward any evidence or argument during trial to contradict this.

2A: Misrepresentation of H’s Actual academic success and wellbeing

18.F says H is improving annually at school culminating in honour roll and that he has solid grades and robust social emotional health. He says that the Judgment has exaggerated H’s challenges.

19.For the trial, the SJE Dr C was called to give an updated psycho-educational report concerning H, and was cross examined by both parties. Her evidence has been dealt with rather extensively in the Judgment, I make reference to §§100 - 116, 127 – 137 therein.

20.I have cited reference in the Judgment regarding Dr C’s impression of F’s (comparatively lesser) sensitivity to H’s condition. F is of the view that H is faring well at school despite Dr C’s report, which also mentioned H’s teachers’ observations, see §100 of the Judgment.

21.I also make reference to Dr C’s evidence quoted in §102 which says that H is achieving the scores he then had only because his school had provided support, but generally, the resources that international schools offer in this regard tend to lessen as a student progresses up the school. Reference is also made to §137, and repeated as follows:

“On these bases, I find that H’s support in the International School is likely to be decreasing as he moves up to the High School; and this lack of support will no doubt has a negative impact on him, not just in the likelihood of declining grades, but also a damper to his self-esteem.”

22.F also says I have “critically dismissed” the International School’s flexible offering of dual qualifications pathway. F attempted to ask Dr C on this topic in his cross examination, but I did not accept that Dr C has the necessary expertise to compare the curriculum, and this line of questioning was not followed through; F referenced this point only very briefly in his closing submission but there is no further elaboration except to say that in his opinion, H does not need it. Hence, I had no information on how this would assist with H’s condition.

23.With evidence from M and input from the SJE, I am not of the view that I have exaggerated on H’s challenges. At §135, I found that F has failed to challenge Dr C in her evidence, and also noted that he has misrepresented Dr C’s evidence in his closing submission (§136). This sub-ground of appeal is not accepted.

2B: Mischaracterization of [the International School]’s proven and ongoing support systems

24.F says I have “wrongly portrayed [the International School] standard policies as deficiencies and dismissed clear evidence of its effective and continuous support”. There is no reference in the Judgment to the International School policies being deficient, F has not given any support in making this statement.

25.F then says I have misinterpreted the “alternative school placement” clause and “presented it as a unique threat”, and says that Dr C testified this is “routine” in international schools. For the record, I am unable to find Dr C using the descriptor “routine” with reference to international school policies.

26.The “alternative school placement” clause F refers to reads as follows:

With the student’s best interest in mind, and if the School cannot adequately meet a student’s needs, the family may be asked to find an alternative school placement.”

27.Dr C interpretation of this as the “manage out” clause has been covered in the Judgment at §§108 and 116.

28.F says that the International School’s learning support staff told him that the school has a 100% graduation rate for accommodated student. F cross-examined Dr C on this issue, and the relevant part of her response to this is recorded in §108.

29.F relies on H’s 2024 ISP and says it guarantees accommodation through to H’s Grade 12, he references a document from the trial bundle. I have reviewed this document again, which is H’s school Individual Support Plan, I cannot find the date of the document, at best I can see is a reference to a meeting date of February 8 2024. The document makes no reference to guaranteed accommodation through to Grade 12 for H, nor was this point on guaranteed accommodation raised in F’s submissions, or used by him to challenge M’s case at trial.

30.I do not take the view that I have mischaracterized the International School’s support system, this ground of appeal is not accepted.

2C: Flawed reliance on hearsay for Kelowna and dismissal of verified Systemic Issues in Canada

31.F says I have favoured unsubstantiated claims about Kelowna over documented realities. This point was covered in §§141-149 of the Judgment wherein I have balanced the information given by M versus the lack of challenge thereto by F.

32.F says I have “ignored or improperly exclude verified evidence”, he has again made a statement with no reference as to how he came by this perception. He made reference to a report in his evidence titled “Educational Experiences and Challenges: Dyslexia in British Columbia 9 November 2023.” He then says critical excerpts were dismissed on a “technicality despite my offer to provide full documents”.

33.First to respond on the point of the report, which was exhibited to F’s second Affidavit. This report deals with British Columbia, and is not specific to Kelowna. British Columbia has more than 50 cities of which Kelowna is one, the lack of specificity of systemic problems in British Columbia does not in my opinion overturn the information that M personally collected in Kelowna. Furthermore, F now says this report is “verified”, the said Report is produced by the Chairperson of “Dyslexia BC”, but I am unable to find in what way and by whom was this report verified.

34.Secondly, regarding the point on technicality and offering of “full document”. I believe F is referring to the incident where he produced only 5 pages of another report he exhibited to his Affidavit, this is mentioned in §147 of the Judgment. F must be confused over the reports, his complaint is irrelevant to this report on Dyslexia as F has already produced this report in full in his Affidavit.

2D: Compounding Error – Disregard for Resulting Emotional and Logistical Harm

35.F says that I have “minimize” the “profound emotional harm of separation” on H as recorded in the SWO report.

36.F’s reference on this is to page 4 of the SIR dated 10 May 2024. The findings in the SIR on that page have been quoted at §§88 - 89 of the Judgment. “Profound emotional harm” were F’s words and his own interpretation of what the SWO reported. And yet the SWO has reported that both children present no difficulties in living in either Hong Kong or Kelowna (§217). The Children’s views in the reports have been fully taken into account in my Judgment, and explanations given as to the balancing exercise I undertook when considering my decision (§§202 et seq).

37.F then says I have overlooked the significant financial and logistical barriers to maintaining a father child relationship post relocation. Here he made reference to page 11 of his Exhibit 7 (i.e. his Closing Argument). This page discusses the impact on the relocation on the family relationship, in particular, F’s new wife, and the Children’s new baby half-brother, it does not make reference to financial and logistical barriers.

38.I do not see any of the arguments under this Ground 2 as presenting any reasonable prospect of success on appeal.

Ground 3: Misapplication of fundamental legal principles – Failure to properly assess and give due legal weight to the Children’s habitual residence in Hong Kong and overemphasis on a return home narrative

39.F says I have misapplied the “paramount principle of the child’s best interests, as enshrined in the Guardianship of Minor Ordinance (Cap 13)”, particularly regarding habitual residence. F talks about how the children’s “entire existence” has been centred in HK and makes reference to the previously exhibited successful application by the Children for HK permanent identity cards, and H’s ID card.

40.The relevant section 3 (1) of the GMO does not spell out what falls under the consideration of best interests. The factors in each case will be fact specific and often involves consideration of multiple factors.

41.The very fundamental analysis of a relocation application must take into account the fact that the children in question are leaving a home in Hong Kong and going to another country, and it will always start on the premises that these children have established and anchored a life in HK; the analysis that a court must then undertake is the balancing exercise of stay, or go. This case is no different, and I do not accept that I have not considered the Children’s life in Hong Kong.

42.F then went on to say that I have made the mistake that this is a return home application to Kelowna, and then says that I erred in saying that M was born and raised in Kelowna, he says that in fact her birthplace was Summerland (also in British Columbia), “where she spent a significant portion of childhood before moving to Kelowna later”.

43.To this M in her submission acknowledges that she has miscommunicated her birthplace; she says while she was born in Summerland, she moved to Kelowna at the end of elementary school; she explains that the move is “largely from that of a small town often seen as a ‘commuter suburb’ of Kelowna to that of the city proper”. M further repeats that H was born in Kelowna, and the parties once considered the community their home. They were “both gainfully employed, purchased property there, and did not intend to permanently abandon their home altogether”.

44.F has gone on to say that the children’s experience of Canada is limited to visits, and argues that they have not established habitual residence there; and that M has taken “unequivocal steps” demonstrating a long term settled commitment to HK, including giving up her former teaching position in Kelowna, and declaring herself a non-resident of Canada.

45.F complains that that the “return home narrative” “prioritize parental preference over the children’s objectively established habitual residence and the stability and continuity that flow from it”, quoting Zfy v Schc HKCA 794 (which should read ZFY v SCHC [2022] HKCA 794). This Court of Appeal case deals with a Family Court Judge granting leave for a child to leave Hong Kong and move to Chengdu with his mother; the father appealed. Of the 10 grounds of appeal cited, none involve an argument about the child’s habitual residence in Hong Kong. I am unable to find the reference to this principle upon which F relies in citing this case; unfortunately, I have not been referred to any specific paragraph(s) that discussed this.

46.Not all relocation applications are return home application, it is but one factor that I will take into account; to this end, it is irrelevant whether the M was born in Summerland or Kelowna, nor is it of paramount importance how many time the children went to Kelowna (as indeed there was a case in which I granted leave for relocation for a child to move to a place where he had never lived before), or whether M’s partner K has spent minimal time there. I make reference to §§180-181 of the Judgment in my consideration of the return home element of the M’s application.

47.I do not take the view that this ground of appeal has a reasonable prospect of success on appeal.

Ground 4: Failure to properly apply Welfare Checklist and Payne Guidelines resulting in a failure to conduct a truly holistic balancing exercise.

48.The Welfare Checklist was cited in §127 of the Judgment. Reference to factors in the Welfare Checklist were applied extensively in paragraph §§127 and seq, and then again at paragraph §198.

49.The application of the Payne Guidelines is dealt with at §§182-197, and 222 of the Judgment.

50.The holistic balancing exercise was extensively dealt with at §§202-220.

4A: The Children’s clearly expressed wishes and feeling were not given sufficient weigh or proper assessment

51.These were, and assessed in my holistic balancing exercise in my decision.

4B: Critical relationship dismissed / Children’s bond with half-brother minimized / father’s emotional harm improperly weighed under Payne Guidelines

52.F’s allegation is that the Children’s relocation will impact on their relationship with their baby half-brother causing “profound emotional loss”, and further says this will lead to “developmental challenges for all his children”; and says that I have given undue weight to M’s unsubstantiated assertions about the Children’s contact. This aspect of his concern is dealt with at §176 of the Judgment; and the extent of the limited contact between the Children came from M’s cross examination of the F’s current wife, and was not dealt with at the latter’s re-examination.

4C: Emotional Impact on the father

53.F says that I have given credit to M’s unsubstantiated assertion of homesickness and fatigue and “afforded only a superficial and dismissive consideration to the objectively evidenced emotional and relational harm that relocation would inflict upon [F]”, and that I have failed to “address the profound emotional distress [F] would endure” and failed to conduct an “equivalent in-depth analysis” of his emotional detriment.

54.I did not conduct an in-depth analysis of the M’s condition. I have only addressed M’s evidence in the context of applying the guidelines in Payne, which requires me to look at impact on the applicant on the refusal of a realistic proposal, see §§196-7 of the Judgment.

55.When writing the Judgment, I was also very conscious of the close relationship between F and the children; this was also mentioned in the SIR, and acknowledged in §164.

56.In recalling the F’s case, there were repeated allegation of harm to the children, but no mention was made of this “objectively evidenced emotional and relational harm” on himself.

4D: Failing to assess G’s needs

57.Information on G have been provided abundantly in the SIRs, the comments in §216 of the Judgment are based on the observation from the reports.

58.I do not accept these applications were improperly conducted, and I fail to see how this ground of appeal has reasonable prospect of success on appeal.

Ground 5: Apparent bias and lack of impartiality / Perceived bias against the father’s opposition and differential scrutiny of respective case

59.On this point, F relies his recusal application (which was dismissed summarily on 9 June 2025).

60.The legal principles on apparent bias can be gleaned from the case of WSSA v SYH [2024] HKCA 735 at §§19 – 20:

19. The “reasonable apprehension” test for apparent bias is well settled. “The Court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased” (GM-SA aka DG, M-S v DDPJ (Recusal) [2022] HKFLR 493 at §10).

20. Bias means a prejudice against one party or his case for reasons unconnected with the merits of the case. The mere fact that a judge had commented adversely on a party would not, without more, found a sustainable objection. An expression of scepticism is not suggestive of bias unless the judge conveys an unwillingness to be persuaded of a factual proposition whatever the evidence may be (In re AZ (A Child) [2002] 4 WLR 78 at §§56(6) to (8)). (my emphasis)

61.F says the reasonable apprehension of bias stems from “a pattern of treatment that suggests my opposition to relocation was not afforded impartial consideration”.

62.The points he made under this ground are as follows:

a. That his cross examination at trial faces sharp criticism

b. Merits of his opposition were dismissed

c. Court has subjected his arguments to intense probing and challenge, while applying less scrutiny to M’s case, giving an impression of favouritism and potential prejudgment

d. Imbalance evidentiary treatment: disproportionate weight to M’s unsubstantiated emotional claims while subjecting his “concrete evidence-based objections” to heightened scrutiny or dismissal

e. On the latter point, he gave the examples of (i) Downplaying his documented concerns regarding declining BC education support. (ii) Mischaracterize and dismissal of the significant impact of separating the children from their half brother as hyperbolized; and (iii) Disregarding H documented success at the International School

f. Manifest disparity of rigorous challenge of his evidenced arguments versus favourable assumptions for the M’s un-corroborated assertions

g. The above is compounded by the procedural unfairness surrounding the issue of his access to court transcripts

63.F speaks of the treatment he received in the proceedings. To start with, the Court makes no difference in treatment between a represented party or a litigant in person. Both parties to these proceedings are litigants in person, they are put to the same standard in production of documents, case management rigour, conduct of trial, standard of proof, presentation of evidence as a legal representative; as litigants in person should not enjoy a laxer standard or lower expectations. It is of note that F appears to have Withers, a well-known firm of matrimonial lawyers, advising him in the background but not on record, although this is not a factor known to this court until after the relocation hearing.

64.More specifically at the points he raised. As with every tribunal, this Court exercises robust case management, time management; and in particular for family court judges, carries a duty of an inquisitorial role in our conduct of cases. Cross examination would be stopped if irrelevant or unreasonable questions were asked, clarification would need to be made to ensure one has the necessary information to make the decision at hand.

65.Regarding paragraph 62(e) above, reference is made to the following paragraphs in this decision: paragraph 32 deals with the BC report, paragraph 52 deals with relationship with the half-brother, and paragraphs 18-23 deals with H’s alleged documented success at school.

66.I have no specifics here with regard to his challenge of M’s “uncorroborated evidence”. On a best conjecture basis, F maybe referring to M’s condition if relocation is not allowed, I have dealt with this in paragraph 52 above.

67.With regard to a party’s right to transcripts, I have also dealt with this in paragraph 24 of my leave to appeal decision on my dismissal of F’s Recusal Application. In these proceedings, F requested transcripts for a direction hearing at the outset of these proceedings. Since that time, he has been duly informed that he is responsible for taking his own notes during subsequent hearings.

68.The Relocation Judgment goes into extensive analysis of parties’ respective cases, weighing points that were raised and highlighted in submissions and oral evidence in court. Parties were specifically directed to cross reference their own evidence when they summarize their case in their closing submissions. The principle is trite that a Court cannot be expected to trawl through all the trial bundles to locate evidence that parties rely on, we are supposed to be directed to where these are, and such is one of the purposes of the submissions. I take the view that the Judgment has covered and analysed the parties’ respective arguments, and I have applied the relevant legal principles and guidelines to arrive at the conclusion that I did. I do not see that this ground of appeal has a reasonable prospect of success on appeal.

Ground 6: Unreasonable exercise of Judicial Discretion rendering access illusory through grossly insufficient arrangements and an unsustainable financial burden on the father

69.F says the access given to him in the Judgment is not enough, and there is a drastic reduction in his time with the Children compared to his then current position.

70.In the consideration of access arrangement, see §§217-219, 222-224 of the Judgment. This is also a case where I am convinced, and so find, that there is no obstruction of access by M (at §218).

71.Relocation will always come with an adjustment to be made on the stay behind parent as to the amount of time he or she will spend with the leaving children.

72.In my Judgment, F has access to the Children for all of the holidays except that summer holidays are to be shared 2/3 and 1/3 in favour of F, and there is to be alternating or shared Christmas holidays (M calculates this to be 76% of the Children’s holidays), with flexibility when there is a Hong Kong holiday and not a Canadian school holiday which I have stated should be a subject of discussion between the parties. F will have daily remote access with the Children (see §232d i to iv).

73.In considering this arrangement, I am also mindful that Dr C has said that the quality of the time F spends with the Children is more important that quantity; the SWO has also spoke to the strong connection between F and the Children which will be maintained if relocation is granted (see §217), and other factors of consideration have been recorded in §219.

74.F says that he does not have the financial capacity to make the trips. He says the Court has made no detailed assessment of his household financial circumstances.

75.In his argument about access to the Children, F has not presented any evidence with regard to the financial difficulty to travel to visit the Children, he did mention “financial and logistic difficulties” in his submission, which I cited in §52(d) of the Judgment, but he did not go beyond this comment nor provide any supporting evidence. Going back to F’s two affidavits, there is no financial information which I can analyse to consider his alleged financial difficulty for travelling to see the Children.

76.On the other hand, M has stated that her income in Hong Kong is around $1 million gross per annum, and she will only be earning 50% of that amount in Kelowna, and provided supporting evidence, this was not challenged by F. I have therefore made an order for M to contribute to 50% of one set of travel for the Children in the light of her unchallenged reduction in income.

Ground 7: Material change in circumstances post Judgment warranting reconsideration – Significant enhancement of learning support at [the International School] directly addressing key judicial and expert concern

77.Under this ground, other than questioning whether I have delivered a “valid judgment”, F seeks to bring in post-trial evidence to show that there is one additional learning support hire by the school and says this constitutes material change which warrants reconsideration of the relocation decision.

78.This piece of evidence has been introduced without leave of Court; but even if F has, I fail to see how one additional staff to the school can turn around the personal challenges that H faces as documented in the SJE’s report. In the circumstances, I shall not be addressing it; nor do I find this an acceptable ground of appeal.

Conclusion

79.There were other points raised by F in his written submissions, and I do not intend to go through every single point here. Generally speaking, I am of the view that F has not identified in his draft Grounds of Appeal or his submission any real prospect of success on appeal; nor any other reason in the interests of justice why leave should be granted.

80.I am also mindful, that this was primarily an exercise of my judicial discretion; and as set out in the case law above, there is a high hurdle to cross to overturn this decision. In my view, F has not presented the arguments to justify the intervention of the appellate court.

81.Based on the above, F’s application for leave to appeal against my decision on relocation is therefore dismissed.

Costs

82.Costs should follow the event, I therefore make an Order Nisi that Costs of this application for leave to appeal be to the 2^nd Applicant mother, to be made absolute 14 days hereof.

1^st Applicant and 2^nd Applicant: Both acting in person