Wmb v. Eiyl

HCMP 797/2024

[2026] HKCFI 4764

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

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A.   INTRODUCTION

1.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”) and the Decision dated 10 April 2026 [2026] HKCFI 2036 (“the Decision”), which I do not intend to repeat herein.[1]  What should be supplemented thereto is that:

(1)  On 9 April 2026, Master Lai ordered that unless Mother do file and serve her affirmation in reply in relation to the Variation Summons by 4pm on 30 April 2026, she shall be debarred from doing so (“the Unless Order”);

(2)  On 10 April 2026, this Court made a Hadkinson Order against Mother, to the effect, inter alia, that unless Mother complied with the Return Order by 4pm on 8 May 2026, the Variation Summons shall be dismissed;

(3)  On 8 May 2026, the Minor was returned to Hong Kong;

(4)  On 24 June 2026, Mother’s solicitors informed Father’s solicitors in writing that she would no longer seek to relocate the Minor to Taiwan;

(5)  On 29 June 2026, Mother took out a summons for relief from sanction (“the Relief Summons”), such that leave would be granted for her to file and serve her affirmation in reply (i.e. her 4^th Affirmation) in relation to the Variation Summons despite her breach of the Unless Order.  The said 4^th Affirmation of hers was attached to the Relief Summons.

2.The Variation Summons was originally scheduled to be heard before this Court on 9 July 2026 (with 10 July 2026 reserved).  However, by her counsel’s skeleton submissions dated 30 June 2026, Mother indicated to the Court that she no longer sought to pursue her relocation application thereunder.  As a result, the Variation Summons was dismissed at the hearing on 9 July 2026 (“the Hearing”).

3.As the Variation Summons was dismissed, the Relief Summons no longer served any purpose and was therefore dismissed as well at the Hearing.

4.What remained to be dealt with was the costs of the Variation Summons and the Relief Summons, which unfortunately could not be agreed upon between the parties. 

5.This Decision deals with the said costs.

B.   PARTIES’ RESPECTIVE STANCES

6.Father asks for the following orders:

(1)  Mother shall forthwith pay his costs occasioned by and thrown away under the Variation Summons and the Relief Summons which shall be summarily assessed on an indemnity basis;

(2)  Mother shall also pay his costs of and incidental to the Variation Summons including preparation for and attendance at the call-over hearing on 31 October 2025 (“the Committal Call-Over Hearing”) under HCMP 1477/2025 (“the Committal Proceedings”).

7.On the other hand, Mother submits that no order should be made on costs.  Alternatively, she suggests that the costs of the Variation Summons and the Relief Summons should be in the cause of the Originating Summons herein.  To recap, the Originating Summons was issued by reason of Mother’s abduction of the Minor to Taiwan.  While a large part of the reliefs sought thereunder have already been adjudicated on in the Judgment, there remains the questions of custody, care and control of the Minor[2] which are outstanding.  Directions have been given at the Hearing for the trial thereof.

C.   THE ISSUES

8.The issues which should be resolved in this Decision are as follows:

(1)  Whether this Decision should deal with Father’s costs of the Committal Call-Over Hearing; if so, whether Mother should be ordered to bear the same;

(2)  Whether Mother should be ordered to bear Father’s costs of the Variation Summons;

(3)  Whether Mother should be ordered to bear Father’s costs of the Relief Summons;

(4)  If Mother is ordered to bear Father’s costs of the Variation Summons and/or the Relief Summons, whether such costs should be taxed/assessed on indemnity basis.

D.   DISCUSSION

D1.  The Committal Call-Over Hearing

9.The issue on Father’s costs of the Committal Call-Over Hearing can be dealt with quickly. 

10.In my view, the short answer on this issue is that such costs should be dealt with after the Committal Proceedings (which have been scheduled to be tried on 9 – 11 December 2026) have been concluded. 

11.Further, it is inappropriate for any part of the costs in the Committal Proceedings to be dealt with in a different action (i.e. this action).

12.I would therefore refuse to make the order sought set out in [6(2)] above by Father.

D2.  The Variation Summons

13.The Variation Summons raised the question of whether the Minor should be relocated to Taiwan, which has become academic because Mother decided to stay in Hong Kong together with the Minor “in the foreseeable future”.  As aforesaid, such a stance was only communicated to Father on 24 June 2026 and to this Court on 30 June 2026.

14.Father therefore asks for his costs of the Variation Summons.

15.It is undisputed that the general practice of the court in relation to the determination of an appropriate costs order in applications related to children had been set out by Yuen JA in TPL v WYY (formerly known as WYY) (CACV 47 & 61/2014, unreported, 15 December 2014).  As Barma JA put it in KK, H v PK, H (formerly known as PS, V) [2023] HKCA 176, in gist:

“[…] the general practice is that there should be no order as to costs in applications involving children matters, save that where there exist exceptional circumstances, such as the reprehensible or unreasonable litigation conduct of a party, it is open to the court to make a proportionate adverse costs order to reflect the same.”

16.Hence, the question here is whether there are any exceptional circumstances in the present case in relation to the Variation Summons.

17.Father submits that there are such circumstances, in that:

(1)  Father is the successful party because Mother’s relocation application has been dismissed;

(2)  Mother’s relocation application has been made for the purpose of delaying compliance of the Return Order and stalling the Committal Proceedings;

(3)  Mother’s relocation application was “maintained” until the very last minute, which had led to substantial costs;

(4)  Mother had tried to recast the Hearing to a trial of custody, care and control of the Minor;

(5)  Mother has been legally represented all along and therefore the Court should not have sympathy on her;

(6)  The origin of the Variation Summons was Mother’s contumelious non-compliance with the Return Order.

18.I am afraid the above (even considered cumulatively) do not constitute exceptional circumstances.

19.First of all, as far as cost is concerned, it is not helpful to describe Father as the successful party of the Variation Summons because it is trite that the Court’s general practice is that cost does not follow the event in children matters.

20.It is true that Mother has only abandoned the relocation application at the eleventh hour.  However, I cannot see why Mother’s position on costs should become worse (when compared to the situation where she has persisted with her application which is dismissed after trial) by reason of her abandonment of the relocation application before trial.  Indeed, if she has continued with her application at the Hearing, but only failed after trial, much of Father’s arguments herein on costs could not have been made at all.

21.I cannot say that the Variation Summons was taken out for the sole purpose of delaying her compliance of the Return Order or stalling the Committal Proceedings as suggested by Father (even though it did have the effect of the latter).  Given Mother’s family background and her connection with Taiwan, I simply cannot come to the conclusion that the relocation application could not have been for the best interest of the Minor, nor that the application is so unmeritorious that it should not have been taken out in the first place. 

22.Neither can I find that the “origin” of the Variation Summons was Mother’s non-compliance with the Return Order.  The objective fact is that she had taken the Minor to Taiwan with the intention of staying there for good.  She would have to take out a relocation application anyway for that purpose no matter whether the Return Order has been made or complied with. 

23.It is true that Mother did attempt to convert the Hearing (which is a trial on the Variation Summons) to a trial on custody, care and control of the Minor.  While this must be impermissible and impracticable (given the focus of the issues involved in the 2 types of trial are different despite the fact that both trials relate to the future arrangements of the Minor, and therefore further evidence would have to be adduced for the purpose of the custody, care and control trial), it is evident that Father’s solicitors had also at one stage given Mother’s solicitors an impression that the Hearing can be so converted.  In the letter dated 26 June 2026 sent by Father’s solicitors, it was stated that:

“If your client no longer seeks the orders sought in her Variation Summons filed on 31 October 2026, she must withdraw it forthwith with costs to be paid to our client […]

[The Minor] has been made a ward of court pursuant to the Amended Order dated 24 June 2024 as a direct consequence of your client’s unlawful abduction of [the Minor] to Taiwan.  The case is already set down for trial in less than two weeks, and the consequential matters relating to the care of [the Minor] will be dealt with at the trial before the Honourable Au-Yeung J in the High Court.

You are referred to paragraph 3 of our client’s Originating Summons, which must now be read together with the Order of Hon Au-Yeung J dated 26 June 2024 at §9.  Pursuant to that Order, our clients have filed their affidavits with their proposals for custody, care and control of [the Minor].  Social welfare reports in both Taiwan and Hong Kong have been or are being prepared to assist the Court to consider the matter – per directions issued by the Court pursuant to your client’s summons.

[…]

Our client is also agreeable for the SWO to attend the hearing.  However, your client must revert immediately regarding the timetable as the trial needs to proceed without further delay.  We put on record that this is our third time reminding your client to reply to us on the trial timetable.  You are required to send us your draft joint letter to seek directions on the SWO’s attendance at the hearing on 9 July 2026, together with your proposed timetable for the trial, for our consideration by close of business today.

[…]”

(emphasis added)

24.Since it was clear by then that Mother no longer asked to relocate the Minor, the “trial timetable” and the “attendance of the Social Welfare Officer” must be understood to be relating to the custody, care and control of the Minor in Hong Kong, that is, the “converted trial”.  Hence, it would not be fair if this matter can be relied upon by Father as constituting exceptional circumstances for the purpose of cost.

25.On a separate matter, this Court’s attention has been drawn to Mother’s reason for abandoning the relocation application.  According to her counsel, it was because of the Minor’s return to Hong Kong, and as a result of which Mother found that there is “no utility” in pursuing the relocation application “out of her overarching consideration for the best interest” of the Minor.  Mr Marwah and Ms Tang for Father submit that Mother’s reasoning is “fundamentally illogical”.  I too find that Mother’s alleged reason is quite difficult to comprehend: If she was minded to relocate the Minor to Taiwan (which she had by her affirmation suggested to be in the best interest of the Minor) on the ground, inter alia, that the Minor has since the Return Order settled in Taiwan (where she had stayed for more than 2 years), I do not understand why the fact that the Minor had been brought back to Hong Kong on 8 May 2026 would all of a sudden  cancel out the allegedly good ground in support of the relocation application, when the Minor has only been brought to Hong Kong for 2 months up to the date of the Hearing.  Having said that, I do not think a lack of good reason (or the non-disclosure of the real reason) would amount to “exceptional circumstances”.

26.To complete the picture, perhaps I should also mention that, when Mother informed this Court through counsel that she would not proceed with her relocation application, she suggested that the remaining issues on custody, care and control should be dealt with in the Family Court.  This suggestion was a repeat of her proposal made by her solicitors’ letter dated 24 June 2026.  With greatest respect, this proposed way forward is again totally incomprehensible, taking into account the fact that this Court has been dealing with this case from the outset and in the course of which has acquired good knowledge of the dynamics of the parties herein and the Minor.  It would be a waste of judicial resources if another Judge in the Family Court has to read all the papers from scratch again.  Moreover, having the case started in the Family Court all over again would lead to delay in the resolution of the disputes which cannot be for the best interest of the Minor.  Indeed, Father’s solicitors had also complained that Mother was engaging in “forum shopping”.  Be that as it may, I do not think Mother’s behaviour as such should place this case in the “exceptional circumstances” category.

27.To conclude, I do not accept that there are exceptional circumstances in the present case which would justify a costs order being made against Mother in relation to the Variation Summons.

28.Mother has also proposed, as an alternative, that the Court may consider ordering the costs of the Variation Summons to be in the cause of the Originating Summons.

29.In my view, this proposed costs order is inappropriate because the factual matters affecting the court’s decision on “exceptional circumstances” in relation to the Originating Summons (which primarily concerns an application for the return of the Minor under the Hague Convention) as opposed to those concerning the Variation Summons are not necessarily the same, particularly in the circumstances of the present case.  I therefore think that the costs of the Originating Summons and the costs of the Variation Summons should be considered separately.

30.I therefore come to the conclusion that there should be no order as to the costs of the Variation Summons.

D3.  The Relief Summons

31.Father asks for costs of the Relief Summons on the basis that he has incurred costs to deal with this summons which has been rendered unnecessary by reason of Mother’s abandonment of the application at the Hearing. 

32.At first sight, it is indeed unreasonable for Mother to take out the Relief Summons on 29 June 2026 when she by then had decided not to proceed with the Variation Summons. 

33.However, the Court should not lose sight of the reality that, by 26 June 2026, Father’s solicitors were anticipating to proceed with the trial on custody, care and control of the Minor at the Hearing (see [23] and [24] above).  Indeed, in reply to the letter of Mother’ solicitors dated 29 June 2026 (in which Mother’s solicitors gave their updated time estimate for the trial and the Relief Summons was referred to expressly), Father’s solicitors wrote on 30 June 2026 (in their 2^nd letter) that:

“We refer to your 2^nd letter dated 29 June 2026.

Taking into consideration the development of the case, please note that our client will need to adjust the time estimate as follows:

[…]

Meanwhile, we have no objection to your draft joint letter to Court in relation to the SWO Attendance […]”

(emphasis added)

34.It is clear that the “development of the case” referred to must be the conversion of the trial from dealing with “relocation” to “custody, care and control” of the Minor.  It is also worthwhile to point out that Father’s solicitors, in their 3^rd letter dated 30 June 2026 in which their stance on the Relief Summons was set out, did not protest against the taking out of the Relief Summons on the ground that the issue raised by the Variation Summons has become academic.

35.I can understand why Mother, in anticipation that the trial commencing on 9 July 2026 would be converted to a trial on the custody, care and control of the Minor, thought fit to issue the Relief Summons as she did on 29 June 2026 even though she would technically not be bound by the Unless Order (because it is in relation to Mother’s right to file and serve affirmation in reply in relation to the Variation Summons).  This is because, if she did not do so, there might well be an objection raised by Father that she was taking advantage of the procedural technicality in filing her affirmation in reply beyond the deadline imposed by the Unless Order. 

36.Although Father’s solicitors, by their letter dated 3 July 2026, did change their stance and make it clear for the first time that the Relief Summons has been rendered academic by reason of Mother’s abandonment of the relocation application, I do not think this should affect this Court’s assessment of overall circumstances of the case. 

37.Hence, in the circumstances of the present case, I do not think it is unreasonable for Mother to take out the Relief Summons.  I therefore agree that there should be no order as to the costs thereof.

E.   ORDER

38.By reasons of the aforesaid, I order that there be no order as to the costs of the Variation Summons and the Relief Summons (including all costs reserved).

F.   COSTS OF THE PAPER DISPOSAL

39.In the course of the submissions made by Mother’s counsel, it has been emphasised that there should be no order as to the costs of the said summonses because making her to pay costs would:

(1)  “stigmatise [Mother] as a loser in litigation concerning her own child, upsetting the parental balance in the future cooperation on child matters”; and

(2)  “exacerbate rather than reduce the existing tensions between the parties, to the detriment of the child”[3].

40.I tend to agree with Mother on the above.  In my view, the same approach should be adopted when the Court considers the matter of costs of the submissions on costs.

41.I therefore make a costs order nisi that there be no order as to the costs of the submissions on costs of the said summonses (including all costs reserved).  This 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.

42.Mother’s own costs shall be taxed in accordance with Legal Aid Regulations.

Mr Azan Marwah and Ms Clare Tang, instructed by Charles Russell Speechlys LLP, for the plaintiff

Ms Lily Yu, instructed by Michelle Hui & Co, for the defendant

[1]  Unless otherwise stated, the definitions and nomenclatures used in the Judgment and the Decision will be adopted herein

[2]  Paragraph 3 of the Originating Summons

[3]  TPL v WYY (formerly known as WYY)(supra) at [14.4]