Psd v. Tfm

FCMC 12549/2022

[2026] HKFC 171

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 12549 OF 2022

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JUDGMENT
Leave to Appeal (Non-Molestation Order)
(Paper Disposal)

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1.On 20 March 2026, I dismissed the petitioner father’s ex parte application on notice (“the Application”) for a non-molestation order against the respondent mother: see PSD v TFM [2026] HKFC 77 (“the Ruling”).

2.Dissatisfied with the Ruling, the petitioner now seeks leave to appeal.

3.In this Judgment, I shall continue to refer to the petitioner as “the father”, the respondent as “the mother”, and the daughter as “E” and adopt the same nomenclatures and abbreviations.

4.I have already set out the background to the Application at [3] to [8] of the Ruling, it is not necessary to repeat the same here.

5.The analysis of the father’s case and evidence and the reasons for rejecting the Application are set out at [11] to [26] of the Ruling.  This Judgment has to be read together with the Ruling.  That said, it is useful to reiterate that the main reasons for rejecting the Application were:

1.  The evidence adduced by the father did not support the grant of a non-molestation order which, essentially, is an injunction against the mother, prohibiting her from participating in the care and control of E and even depriving her the chance of seeing E.[1]

2.  The father was not able to refer to the court the particulars of conduct or behaviours committed by the mother or her agent that suggested the granting of a non-molestation order is warranted. The father was not able to articulate the particular conduct or behaviour he would like the mother to be restrained.[2]

3.  It was clear that the father was not satisfied with Deputy District Judge Felix Li’s judgment dated 26 February 2025 granting the parties joint custody and shared care and control of the children. The father was also unhappy with the recommendation of the social welfare officer in his Progress Report dated 27 November 2025 that the joint custody and the shared care and control arrangement was to continue. The father is not entitled to take out an unmeritorious application for a non-molestation order in order to overturn the Deputy District Judge’s judgment through the back-door and effectively depriving the mother’s shared care and control of E.  E needs to reconnect with her mother as soon as possible.[3]

Legal Principles

6.The legal principles are well settled.  The relevant test governing applications for leave to appeal from the District Court is provided in section 63A(2) of the District Court Ordinance (Cap 336) (“DCO”):

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that –

(a) The appeal has a reasonable prospect of success; or

(b)  There is some other reason in the interests of justice why the appeal should be heard.” [emphasis added]

7.The Court of Appeal discussed the application of s 63A(2) of DCO in Sunny Tadjudin v Bank of America, National Association, HCMP No 691 of 2012, unreported, 29 June 2012 at [9]:

“9. Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (SMSE v KL [2009] 4 HKLRD 125 para 17).  Furthermore, it is pertinent to bear in mind that even if there is a reasonable prospect of success on appeal, the court still retains a discretion whether to grant leave to appeal, although the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion (Ho Yuen Ki Winnie & Ors v Ho Hung Sun Stanley & Anr. HCA 391/2006, 25 May 2009, A Cheung J para 3; and HCMP 1009/2009, 24 August 2009, para 22).”

8.The court will not grant leave merely because an applicant seeks to repeat arguments already considered below in the hope that a different tribunal may take a different view.  In秦錦釗 v 香港特別行政區 [2018] HKCA 167 at [8] Kwan JA (as she then was) held that, in light of the function of the Court of Appeal, it would be futile for an appellant to rehearse the contentions that were rejected by the first instance judge.  Instead of doing so, the appellant should focus on the first instance judge’s reasoning and pinpoint the error in respect thereof.  See also李智慧 v 昆士蘭保險（香港）有限公司 [2021] HKCA 984 per Chow JA at [11].

9.Finally, the Court of Appeal in ZJ v XWN [2018] HKCA 436 stated, at [64], that application for leave to appeal should be a filtering process and should be conducted summarily and proportionately (emphasis added).

Application for Leave Out of Time

10.The father was late in taking out his leave to appeal application.  However, this court has the power to extend the time for the appeal or for applying for leave to appeal, notwithstanding that the time to do so has expired:  Order 3, rule 5, Rules of the High Court (“RHC”)/Rules of the District Court (“RDC”). The principles for granting extension of time are well-established. It is a matter of discretion to be exercised judicially and consideration of the four matters, namely,

1.  the length of the delay;

2.  the reasons for the delay;

3.  the prospect of success of the intended appeal; and

4.  the degree of prejudice to the other party.

See: Hong Kong Civil Procedure (2026), §58/1/9; Postwell Limited v Cheng Kap Sang [2004] 2 HKLRD 355; JWH v TSM [2023] HKCA 12; and Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd & Anor CACV 819/2000 (Date of judgment: 2 February 2001).

11.In respect of the third matter, i.e. the prospect of success, where the delay is inexcusable, the applicant must show a real prospect of success on the merits, and not merely a reasonable prospect of success. See Henry Shing Him Chow & Anor v Ling Kam Tong, Victor & Ors [2026] HKCA 72 at [23] to [25].

12.On the approach to be adopted, the Hong Kong Civil Procedure 2026 commented at §59/4/9,

The modern authorities disapprove of a rigid and mechanistic approach which focuses on the reasons for and length of the delay. Instead, the court must consider all the circumstances and decide whether the overall justice of the case requires the exercise of the discretion to extend time (Jerry Chen v Whirlpool (Hong Kong) Ltd [2006] 1 HKLRD 171 and see Nantong Angang Garments Co Ltd v Hellman International Forwarders Ltd [2005] 4 HKC 86). (emphasis added)

The Length of Delay

13.The Ruling is an interlocutory judgment. Pursuant to Order 58, rule 2(4)(c), RDC, an application for leave to appeal from an interlocutory judgment, order or decision of a judge must be made within 14 days, i.e. by 8 April 2026.[4]  The father’s application was only taken out on 23 April 2026; hence, he was 15 days late. While 15 days is not a very substantial period of time, however, considering that it took the father twice the time allowed under the rule to take out his application, the delay should be considered as moderate.

The Reasons for Delay

14.In his affirmation dated 23 April 2026, the father explained the delay was due to the fact that he did not clearly hear the Ruling when it was pronounced, alleging that this court “held over his mouth” and he only became aware of the “Order’s contents” on 9 April 2026.

15.This allegation was denied by the mother, who in her affirmation dated 11 June 2026, stated that the Ruling was clearly audible.  In my view, the truth could readily be known when one listens to the court audio-recording, which I did when I was deliberating on this Judgment.  I agree with the mother.  In any event, I acknowledge it can be argued that whether the pronouncement was audible or not was rather subjective, depending on, for instance, the particular personal circumstances or health of a party.  That said, in respect of what happened on that day when the 7 ½ page Ruling was read out (which lasted from 3:59:24 to 4:15:59) the father never complained or indicated that my speech was inaudible.  I have listened to the audio-recording; the fact was after the Ruling had been read out, the father was able to respond immediately by saying that he found the decision outrageous and he was going to appeal and complain to the Human Rights Commission (at 4:16:01).  On that basis, I am not satisfied with the father’s explanation. His delay was inexcusable.

The Prospect of Success

16.Mr Chan submitted that an appeal against an injunction is an appeal against the exercise of a judicial discretion; in the present case, it is also a discretion involving the welfare of a minor.

17.The most important consideration is the father’ s prospect of success.  He advances 4 grounds of appeal.  When these are read together with his skeleton submissions, they may be summarized as follows.

Grounds 1 and 2

18.It is to be recalled that at [21] of the Ruling, I mentioned the Admission Note dated 8 December 2025 with the identity of individuals and a large portion of it being redacted.  The father complained that this court ignored his letters and formal requests of 17 March 2026 in which he requested the court to order the Hospital Authority to lift the redactions and/or disclose the names of third parties in E’s medical records, and to grant an adjournment pending receipt of the outstanding Police and Social Welfare Department and other reports.

19.In response, Mr Chan submitted that it is a well-established procedural rule that applications to the court must be made by formal summons, not by informal correspondence.  This principle applies equally to litigants in person: AXA China Region Insurance Co Ltd v Leong Fong Cheng [2016] 6 HKC 220, at [53] & [55].  As no proper application was made, this ground is bound to fail.

Discussion

20.It is unnecessary to go into the issues concerning the jurisdiction of the court, how the jurisdiction is to be exercised and the procedural intricacies regarding the uplifting of identities and particulars of some third parties.  Suffice to say for the purpose of the father’s present application is that I consider Mr Chan has correctly stated the procedural requirement.

21.I was fully aware of the father’s allegations against the mother and of the fact that he relied on a Discharge Slip issued by the Princess Margaret Hospital, a Case Recording prepared by the Tung Chung Integrated Services Centre, and the Admission Note.[5]  It has to be emphasized that I did not find these documentary evidence helpful to the Application.  As regards the Discharge Slip, I found that,

“… it is one thing that E was suffering from psychological factor.  It is quite another that this factor was caused by the mother, specifically by the mother’s conduct that attracted a non‑molestation order.  The father said E’s vomiting symptom had been for three and a half years, and this, I note, also featured at the trial before Deputy District Judge Felix Li.  I recognise that E might have vomited for psychological reasons.  Yet, there is no evidence it was caused by the conduct of the mother”. [6]

22.As regards the Case Recording, I found that the reluctance of E might or might have not been caused by the mother. [7]

23.Finally, in respect of the Admission Note, I found that “… it was a record of information from the father and from E” and it “was not a diagnosis.  It was, at most, a record of allegations”. [8]

24.The father did not explain or elaborate how I erred in coming to the conclusions that I did.

25.The father complained that I did not adjourn the Application pending the obtaining of the unredacted documents and other documentary evidence.  One has to bear in mind that the father’s application was an ex parte application on notice.  Whether to adjourn the matter is a case management decision.  Such decision is discretionary in nature, and the appellate court will exercise extreme caution before interfering with it, doing so only in rare circumstances. In NPYJ v SMRC [2021] HKCA 183, the Court of Appeal said the following at [23],

“… Case management decisions are only subject to appeal in rare circumstances.  The appellant faces a “very high hurdle” and must show that the judge “has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task”, or if the judge has “erred in principle or the order was irrational having regard to the issues that had to be resolved”.  Generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible (Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 at §31).”

26.Again, the father failed to explain or elaborate how this court erred in exercising its discretion.

27.The father also complained that this court did not respond to his letters.  This compliant is misconceived. Fairness requires that the court would not respond to a unilateral request or allow unilateral communication between the court and one of the parties.

28.The father complained that I did not concede to his “request” to meet E.  E was slightly over 9 years old at the time of the Ruling.  She will turn to 10 years old by the end of this year.  Whether to meet a child or not is a decision at the sole discretion of the court:  see Practice Direction – PDSL5 (Guidance on Meeting Children) at [3].  A child’s meeting with the judge is not for the purpose of gathering evidence. That is the responsibility of the social investigation officer: see Practice Direction – PDSL5, at [2]. In the present case, I had already been assisted by the Progress Report dated 27 November 2025 prepared by the social investigation officer. [9] The father simply failed to articulate how I had erred in exercise of the discretion; he was simply unhappy with the decision.

29.Another complaint is that the father was no longer be permitted to make further submissions to the Family Court. Again, this is misconceived.  The order that this court made at [29] of the Ruling that, “unless with the leave of the court, no further documents and affirmations be filed by the father” was a response to the father’s undisciplined manner in sending in documents whenever he felt necessary.  This order does not prevent the father from taking out summons and filing of affirmation in support of his summons. Most importantly, the fact that the father has been able to take out applications he felt necessary including this present application speaks for itself what the true situation is.

Grounds 3 and 4

30.The father said I criticised him for his application for leave to appeal to the Court of Appeal against the judgment of Deputy District Judge Felix Li on 26 February 2025 (CAMP 131/2025) and my attitude towards him throughout has been in breach of the Guide to Judicial Conduct at [21], [22], [23], [30], [31], [32], [54] and [55].  Paragraphs [21] to [23] are on “Impartiality”, [30] to [32] are on “Behaviour in court” and [54] and [55] are on “Apparent bias”.

31.At this juncture, it is pertinent to point out that the father has on 26 August 2026 taken out a summons for the recusal of this court on the ground of apparent bias. His application will be dealt with on 4 December 2026 after exchanges of affirmations and submissions.

32.As Mr Chan rightly pointed out, the principles governing apparent bias are 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: see WSSA v SYH [2024] 4 HKLRD 325, at [19] to [22].

33.It is useful to be reminded of what the Court of Appeal said in WSSA v SYH, supra, at [20]

“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)).”

34.Further, in the same judgment, the Court of Appeal made the point at [43] that it is wrong to equate an erroneous decision (in that case an erroneous case management decision) of the court with one of bias or any risk of bias.

Discussion

35.The burden is on the father to show there is a real prospect of success on these grounds.  However, what the father complained of were no more than mere allegations devoid of particulars and without reference to the circumstances of this case.  For instance, the father mentioned that I had criticised him for his application for leave to appeal to the Court of Appeal against the judgment of Deputy District Judge Felix Li (see [30] above).  I have no doubt that a fair-minded and informed observer should be able to make a judgment by looking at what I actually said. At [5] of the Ruling, I said,

“5. The father was not happy with the judge’s decision.  He applied for leave to appeal, and the application was dismissed on 2 July 2025.  He then lodged his leave to appeal to the Court of Appeal.  This application is pending.”

36.I fail to see how this could be a criticism. Even if it were, this could not support a case of apparent bias.

37.The basis on which this court dismissed the Application was because it was unmeritorious on the basis of evidence presented: see [5] above.  The father simply failed to demonstrate how this court erred in law, in the conclusions that it had come to regarding the evidence or in the exercise of the discretion.

38.On the above analysis, I have come to the view that the grounds of appeal, whether taken individually or collectively, do not give raise to a reasonable prospect of success, not to say a real prospect of access.

Prejudice to the Mother

39.While Mr Chan contended that the father’s application is wholly without merit, he did not seek to argue that prejudice would be caused to the mother if leave is granted.

Should Leave be Given?

40.The father’s application is unmeritorious.  In all the circumstances including but not limited to the four considerations listed above, I see no grounds for exercising my discretion in favour of the father in granting him leave to appeal.  I order that the father’s application be dismissed.

Costs

41.I see no reason why costs should not follow the event. I make an order that the father do pay the mother the costs of his application including all costs reserved and with counsel certificate, to be taxed forthwith if not agreed.  The mother’s own costs to be taxed in accordance with the Legal Aid Regulations.

The Petitioner, acting in person

Mr. Jack Chan, instructed by Messrs. Kevin Ng & Co. (assigned by the Director of Legal Aid), for the Respondent