Wmb v. Eiyl
Read the full judgment text of HCMP 797/2024 on BabelCite. This High Court CFI judgment was delivered on 10 April 2026.
1. This Decision deals with the plaintiff’s summons filed on 18 November 2025 ( “the Hadkinson Summons” or “the Hadkinson Application” ), for the following orders:
Cited by 1 case · Cites 4 cases
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HCMP 797/2024 [2026] HKCFI 2036 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 797 OF 2024 ____________________
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__________________ DECISION __________________ A. INTRODUCTION 1.This Decision deals with the plaintiff’s summons filed on 18 November 2025 (“the Hadkinson Summons” or “the Hadkinson Application”), for the following orders:
2.The background of this action has been set out in this Court’s Reasons for Judgment dated 5 July 2024 [2024] HKCFI 1773 (“the Judgment”)[1], and I do not propose to repeat the same herein, save to highlight that:
3.However, Mother did not comply with the Return Order. 4.On 22 July 2025, Master C. K. Chan made a prohibition order against the defendant while she was in Hong Kong for the purpose of giving evidence _ __ _. Since then, the order had been extended and re-granted, and as a result, the defendant is currently still in Hong Kong. 5.On 1 September 2025, pursuant to leave granted by this Court on 26 August 2025, the plaintiff commenced contempt proceedings against the defendant. The trial of the committal proceedings has now been fixed to commence on 9 December 2026 (with 10 – 11 December 2026 reserved). 6.On 31 October 2025, the defendant took out a summons, and applied for variation/discharge of the Return Order (“the Variation Summons”). This application is now fixed to be heard before this Court on 9 July 2026 (with 10 July 2026 reserved). B. THE APPLICABLE LEGAL PRINCIPLES 7.It is undisputed that the legal principles applicable to an application for Hadkinson Order have been set out by Cheung JA in CCMJ v SSM (Re: Hadkinson Order) [2022] HKCA 173. Because of the importance of this case authority, I would quote the relevant parts thereof extensively below:
8.Ms Yu further relied on a recent case in UK, BR v SN [2025] 1 FLR 313, and submitted that in children cases the court must apply an additionalrequirement beyond the five conditions identified above, namely, that any Hadkinson order must accord with the welfare of the children. I agree that, in cases where children are involved, their welfare and best interest must be one of the matters which the Court must take into account when it exercises its discretion. C. DISCUSSION 9.At the outset, I should refer to what Cheung JA reminded in C v S (Re: Hadkinson Order) [2022] HKCA 1033[2] at [6]:
10.That being the case, I am of the view that while case authorities are instructive as far as the general legal principles are concerned, it is futile for the parties to compare the facts herein with those in the authorities. 11.With the above in mind, I will consider the 5 conditions in turn below. C1. Conditions 1 & 2 12.Mother does not dispute that Conditions 1 and 2 (namely, that she is in contempt and that the contempt is deliberate and continuing) are satisfied. I therefore need not say anything further on these matters. C2. Condition 3 13.Condition 3 requires that there is an impediment to the course of justice. 14.As explained by various authorities, the question here is whether Mother’s conduct amounts to a contempt which impedes the course of justice by making it more difficult for the Court to ascertain the truth or to enforce the orders it may make. 15.I have no hesitation to find that Mother’s refusal to comply with the Return Order impedes the course of justice. The fact herein is that Mother has totally disregarded the Return Order, and is trying to present this Court with a fait accompli by keeping the Minor in Taiwan. She has simply taken the matter in her own hands. Her breach of the Return Order has a very considerable impact on the Minor because the Minor has been kept away from Hong Kong, which is her habitual residence. It also obstructs the exercise of the Court’s quasi‑parental powers over the Minor who is a ward of the Court. Mother’s conduct must not be tolerated by the Court. 16.The retention of the Minor in Taiwan has also rendered it much more difficult, if not impossible, to have a social investigation report prepared (for the purpose of the Variation Summons), as the social worker in Hong Kong will not be able to see the Minor in person. In this sense, it is more difficult for the Court to “ascertain the truth” – that is, to know what is going to be the best arrangement for the Minor. 17.Moreover, if the Minor is not brought back to Hong Kong, then the possibility is that even if Mother fails in the Variation Summons, she will not respect the order, and nonetheless retains the Minor in Taiwan. In other words, it is more difficult (or even impossible) for Father to enforce the order which the Court may make in the Variation Summons. 18.Mother argues that there is no impediment to the course of justice even if no Hadkinson order is made, because:
19.I do not understand why Mother emphasizes that the Return Order was made summarily. Insofar as it is suggested that it has a lower status than a decision made upon full enquiry of the welfare matter of the Minor, or that it should as a result be less respected, I disagree. 20.Further, with respect, the submission that there is no impediment to the course of justice because other proceedings are ongoing is totally misplaced. Mother has simply posed a wrong question, because the issue is not whether other proceedings can be carried on despite Mother’s contempt. Indeed, as explained, the Variation Summons cannot be determined in the most desirable way (which is, that the court is provided with a social investigation report that is done while the Minor is physically in Hong Kong). 21.Mother also boldly asserts that Father’s Hadkinson Summons “only derails the process and compounds the problem by seeking to shut down the very mechanism by which the court can do justice. […] it only aims to deny the course of justice, and to serve [Father]’s own interest”[3]. I totally disagree. The current problem is solely caused by Mother’s determination not to comply with the Return Order. It is Mother who is doing everything for her own interest, even if that amounts to a non-compliance of a court order. 22.To conclude, I hold that Condition 3 is satisfied. C3. Condition 4 23.Condition 4 requires that there is no other realistic and effective remedy. 24.In the present case, Father has obtained multiple prohibition orders against Mother for her contempt against the Return Order, and as a result, she has not been able to leave Hong Kong since 22 July 2025. 25.Leave has also been obtained by Father to commence committal proceedings, the trial of which have now been fixed to be heard in December 2026. 26.Be that as it may, Mother has persistently refused to let the Minor come back to Hong Kong, and to comply with the Return Order. The objective fact is that, despite the making of the Return Order on 26 June 2024, Father has not been able to bring the Minor back to Hong Kong successfully. 27.It is therefore clear that there is no other realistic and effective remedy available. 28.For the sake of completeness, I should also mention that, judging from Mother’s conduct in the last 22 months or so, I do not think it is likely that she will comply with the Return Order even if she is committed to prison pursuant to the committal proceedings. 29.On the other hand, since it is apparently her strong wish to relocate the Minor to Taiwan with the backing of an order of the Hong Kong court, a Hadkinson order would serve as a last resort and may well be an effective means to ensure her compliance of the Return Order. 30.To conclude, I am of the view that Condition 4 is satisfied. C4. Condition 5 31.Under this condition, the Court has to be satisfied that the order is proportionate to the problem and goes no further than necessary to remedy it. 32.As set out in [1] above, generally speaking, Father seeks the following orders in the Hadkinson Summons:
33.I will consider these reliefs in turn. C4.1 Prohibition to make further submissions/applications in this action 34.As aforesaid, while the Return Order has been made for nearly 2 years, the Minor is still retained by Mother in Taiwan, and unfortunately there is no way that the order may be successfully enforced without Mother’s cooperation. 35.Given the above and Mother’s eagerness to obtain an order of relocation from the Hong Kong court, I am of the view that it is proportionate to make an order as sought by Father. 36.Mother argued that this proposed order would deprive her of her fundamental right to be heard. That may be so. But I think the correct way to look at the matter is that she is the one who should be blamed, because she has chosen to disregard the order of this Court. Mother clearly has a choice of bringing the Minor back to Hong Kong pursuant to the Return Order, and thereupon she will be free to bring whatever application and make whatever submission she considers appropriate. If she decides not to do so, it is her choice and she has to bear the consequence. After all, what Father is really after is simple: that Mother complies with the Return Order, an order which was made after a hearing which Mother decided not to participate in, and against which she did not appeal. 37.Mother also submitted that there has been “factual changes in the circumstances” in the last 2 years. It is unclear as to the relevance of this matter as far as the test of proportionality is concerned. In any event, the so-called “changes” have been brought by her unilateral decision in retaining the Minor in Taiwan in total disregard of the Return Order. 38.Moreover, in my view, it would only be right if the Minor is brought back to Hong Kong first before the Court starts to consider Mother’s relocation application. It would be wrong if the Court allows a parent to take such a matter in his/her own hand in the way Mother did. 39.All in all, I am of the view that it is proportionate for the Court to make a Hadkinson order as sought by Father in paragraph 1 of the Hadkinson Summons. C4.2 Outright dismissal of the Variation Summons 40.In paragraph 2(i) of the Hadkinson Summons which was taken out on 18 November 2025, Father asked to have the Variation Summons dismissed in the event Mother still failed to comply with the Return Order by 31 December 2025. 41.By now the proposed deadline had been passed. However, Father’s counsel did not suggest any new deadline. He only asked the Court to make an order in terms of the Hadkinson Summons. In effect, he is inviting the Court to dismiss the Variation Summons outright. 42.Given the purpose of the Hadkinson order is to compel Mother in complying with the Return Order, I am of the view that the Variation Summons should not be dismissed immediately. Once Mother has complied with the Return Order, she may then continue to proceed with the relocation application. 43.Having said that, I do not think Father and the court should wait all the way until the scheduled date of the substantive hearing of the Variation Summons (i.e. 9 July 2026). The scheduled hearing slot would be wasted if Mother only complies with the Return Order shortly before the said date because there would then not be enough time for the parties to prepare for the hearing. Hence, it would only be right to impose a deadline for Mother to comply with the Return Order if she were to be allowed to proceed with her application on 9 July 2026, otherwise the hearing should be vacated. 44.In order to decide the date of the deadline, the Court should take into account the case management directions which have been made for the Variation Summons and the progress of the application so far. 45.According to court record, Father has already filed his evidence in opposition on 10 February 2026. Pursuant to the time extension granted by Master Lai on 9 April 2026, Mother is now obliged to file and serve her evidence in reply by 30 April 2026. 46.By directions given by this Court on 10 November 2025, an international social investigation report and a social investigation report should have been lodged by 10 February 2026. The time has since then been extended on 24 December 2025 to 10 April 2026. However, as aforesaid, up till now, the social worker in Hong Kong has not been able to interview the Minor physically. In order to let this Court grasp as much useful information as possible before deciding on the very important matter of relocation, I am of the view that it is necessary for a local social investigation report to be prepared with the benefit of a face-to-face interview between the social worker and the Minor. Upon the Minor’s return to Hong Kong (if she does), adequate time should be provided for the arrangement of the meeting, the preparation of the (supplemental) report, and the consideration of the report by the parties. Ideally, at least 3 months should be provided. However, I am minded to give a final chance for Mother to comply with the Return Order, so that she can put everything back to the right track. Having balanced all factors, including the need for parties to obtain an order from the Taiwan Court to lift the travel ban imposed on the Minor, I will fix the deadline as 4pm on 8 May 2026. Hence, the effect of the Hadkinson order is that the Variation Summons should not be dismissed unless Mother still fails to comply with the Return Order by 4pm on 8 May 2026. C4.3 The committal proceedings 47.Father invites the Court to bring forward the committal proceedings upon the dismissal of the Variation Summons. Indeed, it was because of the relevance of the outcome of the Variation Summons that the committal proceedings was fixed to be heard in December 2026, and that parties have been directed, among other things, to file and serve their evidence after the handing down of the Judgment in relation to the Variation Summons[4] (“the Committal Proceedings Timetable”). 48.However, even if the Variation Summons is dismissed, the defendant would still be entitled to file and serve evidence for the purpose of opposing the committal proceedings. In this regard, Mr Marwah seems to be suggesting that there is no need for Mother to file her evidence in opposition in the committal proceedings in such a situation (as he proposed to bring forward the committal trial forward to an earliest possible date with 1 day reserved). With respect, I disagree with this suggestion. In my view, Mother is still entitled to file her evidence in opposition. In fact, Mr Marwah himself accepted that the application for Hadkinson order would not prevent Mother from being heard in the committal proceedings[5]. Further, as it can be seen in [1] above, one of the alternatives proposed by Father himself in the Hadkinson Summons was to re-fix the committal trial to an earliest possible date with 3 days reserved. 49.If the Variation Summons is dismissed on 8 May 2026, then according to the Committal Proceedings Timetable, the parties would have up to late June 2026 to file their evidence. There would then only be slightly more than 5 months before the scheduled trial date. 50.Taking into account this Court’s diary, I do not think another 3 days’ time slot can be found in the second half of 2026. 51.It is also not feasible to re-fix the trial to be heard on the dates which were originally allocated for the Variation Summons because only 2 days have been reserved in July 2026. 52.There is no urgency anyway, because even Mr Marwah submitted that Mother does not explain “how the existence of Prohibition Orders, committal proceedings, and lodgement of [the Minor]’s Taiwanese passports altogether mean that the Plaintiff has other effectivealternatives to exhaust”[6]. 53.I would therefore consider it more appropriate to keep the Committal Proceedings Timetable intact, and not to re-fix the committal trial. C4.4 Release of the Minor’s Taiwanese passport 54.Father also asks for the release of the Minor’s Taiwanese passport. 55.Ms Yu for Mother submitted that this should be a consequential relief upon the dismissal of the Variation Summons. 56.I agree. Therefore, instead of ordering that the passport should be released to Father forthwith, I order that it should only be so released upon the dismissal of the Variation Summons. C5. Minor’s best interest 57.Ms Yu for Mother submitted that no Hadkinson order should be made because it would not be in the best interest of the Minor. It was said that this is because:
58.In my view, if anything, it is Mother who has not placed the Minor’s welfare and best interest as first priority. The fact of the matter is that, since the making of the prohibition order on 22 July 2025, Mother has not been able to leave Hong Kong, and as a result, she has not met the Minor for more than 8 months by now, and yet she refused to arrange for the Minor to return to Hong Kong, which in fact is something which she is legally obliged to do. 59.Worse still, Father is no longer able to stay in Taiwan continuously for a long time because he has also exhausted his sick leave, and as a result, the Minor has been taken care of by neither of her parents since January 2026[8]. 60.Therefore, in the circumstances of the present case, best interest of the Minor requires that she be brought back to Hong Kong so that she can live with/see her parent(s) again, and then the Court may decide on the Variation Summons on its substantive merits, with the benefit of a social investigation report which is done after the local social worker has had a chance to meet the Minor physically. C6. Other considerations 61.Mother further submitted that the Hadkinson Summons should be dismissed because:
62.Regarding “abuse of process”, Mother submitted that, at the call-over hearing of the committal proceedings on 31 October 2025, parties had agreed on a number of case management directions, which cover the Variation Summons. At the time, Father did not mention about any intention to apply for a Hadkinson order, and the common intention of the parties at the time was to have the Variation Summons decided on its merits. Hence, Father should not be allowed to have a “second bite of the cherry” by way of the Hadkinson Summons after he had failed to achieve his goal of fast-tracking the committal proceedings. 63.This submission is totally unmeritorious. 64.What happened was that:
65.In such circumstances, it would be unfair to accuse Father of abusing the process by not indicating right away at the hearing that the Hadkinson application would/might be made. At the time, Father simply did not have a fair opportunity to obtain full legal advice on the new development. 66.Mother further submitted that the Court should not disregard the proceedings in Taiwan in which the Taiwan Court had granted Mother full parental rights over the Minor. 67.Without disrespect, the fact of the matter is that it was this Court which made the Return Order in the first place in June 2024. At that time, the court proceedings in Taiwan had not even been commenced. In my view, Mother should have complied with the Return Order forthwith and long time ago. This legal obligation is not changed nor discharged by reason of any other court proceedings outside Hong Kong. D. ORDER 68.For the above reasons, it is hereby ordered that:
E. COSTS 69.Costs should follow the event. 70.I take the preliminary view that, since this application is rendered necessary by Mother’s deliberate non-compliance of the Return Order, Father’s costs should be assessed on indemnity basis so as to show the Court’s strong disapproval of Mother’s conduct. 71.I make a costs order nisi that the defendant shall bear the costs of the Hadkinson Summons (including all costs reserved), to be assessed on indemnity basis if not agreed. 72.The above costs order nisi shall become absolute in the absence of application to vary (which, if any, will be disposed of on paper) within 14 days hereof. 73.The plaintiff’s costs of the Hadkinson Summons shall be summarily assessed in lieu of taxation. Unless any application for variation of the aforesaid costs order nisi is made within time, the plaintiff shall lodge and serve his statement of costs within 7 days after the expiry of the said 14-day period. The defendant shall lodge and serve her statement of objection within 7 days thereafter. Summary assessment of the costs of the Hadkinson Summons will be conducted on paper (no matter whether any statement of objection is lodged by the defendant within time) thereafter. The costs assessed shall be paid by the defendant within 14 days after assessment. 74.The defendant’s own costs shall be taxed in accordance with Legal Aid Regulations.
Mr Azan Marwah, instructed by Charles Russell Speechlys LLP, for the plaintiff Ms Lily Yu, instructed by Lee Wong & Co, for the defendant [1] Unless otherwise stated, all nomenclatures used in the Judgment will be adopted herein [2] This Decision deals with the application for the father in CCMJ v SSM (Re: Hadkinson Order) (supra) for leave to appeal against the order that his appeal regarding the custody of his child shall not be heard unless he complied with an earlier order made by the Family Court concerning the payment of the child’s maintenance and the mother’s carer allowance [3] Paragraph 37(6) of Mother’s Skeleton Submissions [4] Directions given on 10 November 2025 [5] Paragraph 35 of Father’s Written Submissions [6] Paragraph 39(5) of Father’s Written Submissions [7] Paragraph 73 of Father’s 11th Affidavit [8] Father did stay in Taiwan from July 2025 to December 2025 to take care of the Minor but he has now exhausted his sick leave | ||||||||||||||||||||||||||||||||||
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