Sg v. Gdv

FCMC 10217/2020

[2026] HKFC 154

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 10217 OF 2020

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J U D G M E N T

(Leave to Appeal

  Paper Disposal)

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1.This is the Respondent father’s (“F”) application on 14 May 2026 for leave to appeal against my dismissal of his application for relocation of his child P to the US by my decision of 17 April 2026 (the “Judgment”). 

2.The Petitioner mother (“M”) filed her opposition on 20 May 2026.

3.Other than the dismissal of F’s application, the Orders I made on 17 April 2026 include the following:

a.  Sole custody, care and control of P be granted to M;

b.  F to have the following access:

i.  Unrestricted telephone and video call.

ii.  4 weeks of summer holidays and half of winter holidays subject to 4 weeks prior notice to M.

iii.  During term time, reasonable day or staying access, subject to 4 weeks prior notice to M.

iv.  Both term time and holiday access to take place in HK unless otherwise agreed by both parties.

4.F’s appeal seeks the following:

a.  Set aside my Order made on 17 April 2026 pursuant to the Judgment (the “Order”).

b.  Leave to remove P permanently to the US.

c.  Parties be granted joint custody.

d.  F to have care and control of P.

e.  In the event that care and control is not granted to F, that he shall have reasonable access to P to be exercised either in HK or in the US upon the granting of a mirror order in the US.

Background

5.The background of the case has been set down in the Judgment and will not be repeated here.

The Applicable Legal Principles

6.The appropriate test when seeking leave to appeal is set out at section 63A of the District Court Ordinance (Cap. 336), which states that either the appeal must have a reasonable prospect of success or that there is some other reason in the interest of justice why 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.  The case of SMSE v KL [2009] 4 HKLRD 125, elaborated as follows:

“…. Reasonable prospects of success involve the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.

8.There should not be disagreement on this principle as F cites the same case in his submission.

9.In challenging an exercise of discretion such as the one I made in the relocation application, it is well known law that it is not enough to establish that the appeal court might have made a different order.  It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong, that an appellate body is entitled to interfere.

10.The principles are trite that in the challenge of finding of fact by a trial judge, an applicant for leave must showed that the trial judge is “plainly wrong”.  In this regard I refer to the case of Henderson v Foxworth Investments Limited and another [2014] UKSC 41, where Lord Reed explained this concept at the following paragraphs:

“62. …The adverb “plainly does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge.  It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion.  What matters is whether the decision under appeal is one that no reasonable judge could have reached.

…

67. … It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”

F’s other application for stay and overseas holiday for P

11.In paragraph 3 of the H’s Summons for Leave to Appeal therein, H asked for a stay of execution of the Order “pending determination of this application for leave to appeal and if leave is granted”.

12.By my memo of 18 May 2026, F was directed to take out an inter- partes summons for the stay of execution of my Order.

13.F responded by first faxing a covering letter with a Summons which was received by Court on 7 June 2026 (Sunday), and in this Summons states inter alia:

a.  Pending determination of F’s application for leave and if granted the determination of his appeal, that the Order be “stayed, clarified, or supplemented in limited respects as follows”.

b.  W shall not rely on the sole custody Order to make unilateral decision for P’s international travel, travel documents, schooling changes, non-emergency major welfare decision save by agreement or further order.

c.  P’s Summer holiday to go to Greece from 19 to 26 June 2026, and to the US from 15 July to 14 August 2026.  In this regard, F offers his “safeguards” of return ticket itinerary, destination address, travel insurance, undertaking to return P to HK, remote access to M, undertaking not to apply in Greece or USA to retain P or change habitual residence and “mirror/recognition order limited to return safeguards if directed for US contact”.

d.  Direct parties to mediate.

e.  M to file evidence in opposition within 3 days. (F’s emphasis)

14.On 12 June 2026, I issued a further court memo informing F that the court does not accept documents by fax, and that fixing date for summons must be done at the FC Registry either in person or via legal representative.  H’s original documents from the US arrived on this same date.

15.M filed submissions in opposition to F’s purported Summons on 10 June 2026; but as F did not proceed to fix this Summons for hearing, I did not deal with this application any further.

H’s Grounds of Appeal

16.There is a total of 10 grounds in the F’s draft notice of appeal, I have broken them down into the following headings.

Timing of delivery of Judgment : Ground 1

17.F’s first ground of appeal complains that I have erred in law in the delayed delivery of the Judgment, saying that the Judgment should be delivered promptly so that if it was challenged, a new status quo would not have been established wrongfully.

18.Firstly, the closing submission for the relocation trial came in only on 18 July 2025; even if relocation was to be granted, it would not be in the middle of P’s school term, the Judgment delivered in April 2026 caused no prejudice whatsoever to the F’s case. 

19.Furthermore, his argument regarding a new status quo makes no sense; as P has been in M’s care and control since August 2021, and remains so to date; the dismissal of F’s application keeps P in M’s continuous care.  There is no new status quo.

20.There is no merit to this ground of appeal.

On Relocation : Ground 2-5

21.In his second ground of appeal, F says I have erred in law by relying on finding of fact in the previous relocation judgment of 9 January 2023, and that I should have relied only on evidence filed for trial in May 2025 as there were material change of circumstances, the most relevant of which is that leave for P’s elder brother (“L”) to move to the US permanently was granted in May 2025.

22.In the Judgment, I have made reference to my finding of facts in the previous relocation judgment, F did not take this to appeal and those findings remain unchallenged.  There is no legal basis which prevents me from making reference to a similar application between the same parties of the same nature.

23.F did not further elaborate on this point in his submission, so it is not clear what other change of circumstances he was referring to.  The Judgment has already taken into account P and L being separated (See the Psychologist report referenced at §49 in the Judgment, and §§95-98).

24.In the third ground of appeal, F says I have erred in law in failing to take into account / give more weight to the Consent Order dated 21 May 2025 which granted leave for him to permanently removed L to the USA based on the same relocation plan.

25.The parties agreed via their Consent Summons for F to remove L permanently to the US, joint custody of L to the parties, care and control to F, and defined access to M. 

26.A split care and control Order was made by HHJ Melloy in August 2021 wherein L has been in the F’s care and control, while P’s care and control lie with M.  P’s case was considered, and H’s application dismissed, inter alia, in the light of P’s relationship with his father.  L and P being two separate individuals, different considerations would have been undertaken if L’s permanent removal had to be considered by the Court at the same trial.  The fact that the F offered the “same relocation plan” is neither her nor there.

27.F’s fourth ground repeats the same “relocation plan” argument.  F says that I have erred in fact and in law saying that it is the same relocation plan I had approved in granting relocation for L, that I was wrong in considering that the terms of housing, schooling and access were wrongly considered to be “hardware only”.  H says the relocation plan is reasonable, plan is “reasonable, practical and in P’s best interest”.

28.F’s proposal on where to live, how big the house is in the US, the presence of a pool there, how good is the proposed school, and how big is the school grounds, are hardware.  I did not say in the Judgment that access arrangement is hardware.  (Judgment at §132).

29.I have made my observations on F’s proposal at §63, and also made explicit finding on his proposal for M’s access to be unacceptable and impractical (Judgment at §68).

30.F has missed the important crux of the Judgment.  The dismissal of his application lies in its examination of the relationship between him and P, the emotional abuse that he is unwittingly committing (§§83-85), his lack of self-awareness of his conduct on P, and his lack of sensitivity to P’s needs and emotions (§§119-123), which in my view renders placing P in his long term care to be a risk to his wellbeing.

31.H says in his fifth ground of appeal that I have erred in fact and law by finding that the relocation plan was not a return home application “when pursuant to the Consent Order, L and the [F] returned home and the Judge had correctly found that P travelled for summer holidays to visit his cousins, grandparents and extended family in the USA and had roots in the USA”.

32.Whether an application is a return home application is but one of the many factors a court has to consider in a relocation application.

33.Nowhere in the Judgement did I make a finding that P had “roots in the US”.

34.F quoted the case of SS v PS [2022] HKFC 134, he said, where the children in that case “[did] not speak the local language, their first language [was] English, they went to International Schools, they [lived] in the circles of the expatriate communities”.  This case involved a father of Indian origin, seeking to move his children to the UK, where he did not even have a right of entry and residence as he would need a visa; the father in that case did not rely on a return home argument.  The above quotation came from a section of that judgment in the context of the effect of change to the children.  There is no application to the current case.

35.This is a repeated argument from the trial, my reference to F’s case of return home application has been covered in the Judgement at §86.  The same is repeated here in response to this ground of appeal. 

36.There are no merits to any of these grounds of appeal.

On Custody : Ground 6 and 7

37.In F’s sixth ground of appeal, he says I have erred in law in granting sole custody of P to the M, that joint custody order should have been made for P as joint custody Order was made for L.  Further that I have failed to give weight that F and M had subsequent to trial agreed for P to attend an English-speaking school.

38.On his seventh ground of appeal, F then says that I have erred in fact that “rational accord” between parties would be difficult to achieve.  F says that because joint custody was granted for L, and there was agreement on P’s schooling, therefore a joint custody of P is in P’s interest.

39.These two points are repetition of the same bases of his complaint.

40.Again, F feels that orders made for one son should be the same for the other.  This is not true in the light of the split care and control order made for L and P to the two parents respectively back in August 2021, and how each of them has developed and evolved over the years.  Furthermore, there was no evidence before the Court with regard to disagreement on custodial issues regarding L; in particular, as M’s relationship with L has been seriously estranged since the split care and control order. 

41.Reference is made to §§140-146 of the Judgment.

42.This Court had all along witnessed and had to make adjudication on issues regarding P when F and M were unable to agree; the most pronounced of which was the subject of years of argument over schooling for P.  F started with taking the view that home schooling is good enough and beneficial to the children; this was despite his full knowledge that this was in contravention of the laws of Hong Kong, and that psychologist report had cited L’s lack of social interaction with other students to have impacted his personal growth (Judgment at §140); had M not interjected, P would have gone down the same route.  The lack of agreement and impossibility of resolution at the relevant times had no doubt caused a lot of stress for P, who needed to leave his previous school because F says he could not afford the school fees, P then needed to change to a local school, and suffered a drop in grades which became a subject matter of F’s ridicule.  P was no doubt caught between M and F in the latter’s relentless accusatory comments towards M. 

43.As for the parties eventually sending P to an English-speaking school, I am not privy to the discussion which took place post-trial, nor how the parties eventually came to an agreement.  However, I could not see how this matter alone would have changed my mind regarding the difficulty I have seen over the years of this couple’s attempts at custodial discussions; and how in my view, P must have been affected by their discord.  

44.I do not see any merits in these grounds of appeal on custody.

On Care and Control : Ground 8

45.In his eighth ground of appeal, F says I have erred in fact by granting sole care and control to M and failed to take into account that he had exercised joint care and control by “doing homework, buying food and caring activities” and that P spent frequent times with him and L.

46.To start with, F is rearguing this point.  It has been pointed out that the Order made by HHJ Melloy in August 2021 was not a joint care and control Order, and those activities he mentioned did not convert their arrangement to a joint care and control Order.  This was covered in Judgement §§99-101, and will not be repeated here.

47.Further, a relocation application inadvertently ends with the care and control being granted to the parent with whom the child lives.  There is no error, and no merits to the F’s argument on this point.

Access : Ground 9

48.F says in his ninth ground that I have erred in law for access to take place only in HK unless agreed by M, and that I have not taken into account F’s proposed “judicial safeguards which could and should have included a mirror order so that access could be exercised by [F]” in the US; and not taken into account that USA is a Hague Convention country.

49.The analysis regarding access is in the Judgment at §§148-153.

50.The reference to judicial safeguards appeared in F’s proposals with regard to quarterly reports to be submitted from US to the HK Social Services and the Family Court (§§25(a)(iv) and 63e), there was no elaboration on this at trial.

51.There is no need for me to make an order for a Mirror Order, parties are at liberty to arrange this for themselves based on the Order I made.

52.USA being a Hague country was not an argument that was pursued at trial.  Even if it was, I am conscious that M had been on legal aid throughout these proceedings, and would not have the financial resources to pursue a Hague recovery of the child if F has chosen to keep P in the US (see §149).

53.I do not see any merits in this ground of appeal.

UN Convention : Ground 10

54.F quoted Article 9(3) of the UN Convention on Right of a Child (the “Convention”) and says that this is related to P’s access to go to the USA to see him and L, his grandparents and cousins.

55.Article 9(3) of the Convention reads as follows:

“Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests”.

56.Direct contact is not mandated to be where F resides.

57.In the Judgement I have cited my concern if P were to travel to the US at this point of time (Judgment §§128, 149 and 151).  The Order grants unrestricted remote access, physical access in HK, and outside HK subject to discussion between the parties.  There is no restriction on P seeing either his father or his brother.  There is nothing preventing F and L to come see P in HK, and I have found that F has the resources to do so (Judgment at §152).  I do not see how this has contravened the Convention.

58.There is no merit to this ground of appeal.

Conclusion

59.I find that F has raised no arguable case on all the grounds in his application for leave to appeal and there is no reasonable prospect of success. 

60.As stated above, F has attempted to repeat arguments he already relied on at trial, our Court of Appeal has clearly stated its position with regard to such regurgitation in the case of Mak Rachel Wing Nam v Ching Kai Chung [2024] 5 HKLRD 17 §26:

“… As pointed out by this court in China Gold Finance Ltd v CIL Holdings Ltd (CACV 11/2015, [2015] HKEC 2529, 27 November 2015), the appellate process is not designed to give a litigant (or his counsel) a platform for regurgitating his closing submissions on the evidence and factual aspects of the case again with the hope that the appellate judges may come to a different view. The focus should be on the identification of palpable errors in the judgment of such nature as to warrant intervention from this court.”

It is also on this principle that I find those arguments from F to have no reasonable prospect of success.

61.F has not raised any grounds of appeal which satisfy the high bar required to challenge the exercise of my discretion in the Judgment.  Nor is there any reason in the interest of justice which justify this appeal to be heard.  I therefore dismiss his application accordingly.

Costs

62.I see no reason why costs should not follow the event, I therefore award costs of this leave to appeal application to the Petitioner M. 

Petitioner: acting in person

Respondent: acting in person