Rk v. Ys

FCMC4931/2012

& FCMP 151/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4931 OF 2012

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BETWEEN

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AND 

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NO. 151 OF 2008

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RAESONS FOR DECISION
(Leave to appeal)

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Introduction

1.After a 7-day’s trial, I handed down my judgment dated 6 January 2015 allowing the respondent’s (“mother”) application to permanently relocate the children of the family to her home country, Japan (“Judgment”).  The petitioner (“father”) filed a summons on 19 January 2015 seeking leave to appeal against the Judgment and to stay the relocation pending his appeal to the Court of the Appeal. At the end of hearing, I refused to grant leave to the father or to stay the relocation, with reasons to be handed down. I now give my reasons.

2.In the following discussion, I would adopt the abbreviations used in the Judgment.

3.The background of the case and the circumstances leading to the mother’s application were already set out at para 6 - 32 of the Judgment. Her grounds of application and the father’s opposition were broadly summarized in para 2 and 3 of the Judgment.  Therefore, I do not propose to repeat them at length here.

4.The children of the family involved in this case is a girl, now aged 12 (“AK”) and a boy, now aged 10 (“KK”).  AK has all along studied in a Japanese curriculum; she is now in the secondary section of the Hong Kong Japanese School.  KK is suffering from severe autism and unable to take care of himself in daily life. He is now studying at the Family Partners School. They were both born in Japan. They visited Japan and the maternal grandparents from time to time with their mother; but that was stopped since 2008 due to a non-removal order put in place once when the parties started their litigation.

5.It may be helpful to note by way of background that neither party was born in Hong Kong; the father was born in the USA, while the mother in Japan. Their immediate families are now in their respective countries. The parties came to Hong Kong in 2005 with the children only due to the father’s work. The mother has been a full-time housewife since marriage and the primary carer of the children since their birth. She has shown her desire to return to Japan with the children as early as 2008 or 2009 when the marriage broke down, and the father was aware of her desire. AK has also given her clear wish to move to Japan with the mother. The father himself does not live in Hong Kong now; he has been residing/working in Taiwan since August 2013.  He has recently made enquiries as to how to obtain permanent citizenship in Taiwan.

Applicable legal principles

6.Section 63A(2) of the District Court Ordinance provides that 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.

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

Proposed Grounds of Appeal

9.In his summons, the father sets out 3 grounds of appeal as follows:

(1) I erred in law in concluding that his rights as a parent should be better protected by Japan’s adopting the Hague Convention and thus disregarding the Japanese legal opinion dated 6 December 2013 provided by a Japanese lawyer commissioned by him;

(2) I erred  in concluding that the mother is in need and can rely on the assistance from his parents;

(3) I erred in concluding that the mother has not obstructed access and failed to take into account the 2^nd DC Judgment of Deputy Judge S Lo, whereby the deputy judge commented that the mother had breached some of the orders and that committal proceedings should be taken against her.

10.I shall now turn to his grounds of appeal.

Grounds (1)

11.Mr Clough, counsel for the mother, is right in submitting that the father has, in his earlier affirmation, expressed his concern about Japan not being a signatory to the Hague Convention[1] and thus my comment in para 108 of the Judgment must be read in that context. In addition, para 108 must be read together with para 109 of the Judgment.

12.I would add that the Japanese legal opinion does not provide an explicit view that it must be difficult to enforce an access order given by a foreign court in Japan. It simply points out that there is a “lack of sufficient case law on the enforcement of foreign court access orders for a foreign father residing in a foreign country with a child residing in Japan” and thus it is not appropriate to give “a speculative answer”.[2] Since there lacks sufficient case law, the legal opinion then expands on the ways of enforcement of access orders made by a Japanese family court, presumably with a view to draw analogy. If analogy was really able to be drawn, then I do not read the said Japanese legal opinion to go so far as to support the father’s proposition that “there are no means of enforcing the Order [of Hong Kong courts] in Japan”,[3] for several means of enforcement of an access order have been set out therein. [4]

13.Further, I am of the view that the father’s submission that he cannot not rely on Article 21 of the Hague Convention to petition for access in Japan because he now resides in a non-contracting state of Taiwan is, by itself, contrary to his own oral evidence in the trial. In the trial, he was very adamant in saying (though not accepted by me) that he would be posted back to Hong Kong, where the Hague Convention is adopted, in the coming 2 years.

14.Looking at this from another prospective, if the father now considers himself residing in Taiwan for a considerable period of time in the future, then there is no logical reason for him to keep the mother and the children in Hong Kong, in particularly when the latter came to stay here solely due to his work.

15.In any event, the difficulty in enforcing an access order in Japan, if any, is only one of the factors for consideration in the balancing exercise. It is not the only factor for consideration.

16.Hence, I fail to see why and how the error in law alleged by the father lies. I reject his argument on this ground.

Ground (2)

17.I have described in para 57 of the Judgment the investigation by the international social welfare officer into the mother’s maternal family in Japan. I have also analysed in para 84 – 87 and para 94 - 95 of the Judgment on the support that the mother would enjoy from the maternal grandparents if relocation was allowed.

18.In his written submission, the father refers to the previous trial of the 2^nd DC Judgment, in particular the alleged evidence of the mother that she was able to care for the children perfectly fine on her own without help. He seems to suggest that the mother contradicts herself by now suggesting that she needs the assistance of a third party in caring of the children.

19.Since I am not the judge presiding over the trial of the 2^nd DC Judgment, I am not in a position to verify the accuracy of the father’s above allegation. The mother was not cross-examined on this point in the relocation trial.  

20.However, for the purpose of discussion and just assuming that the mother did give evidence to the alleged effect, I have the following to say. First, I do not think this is a fair comment administered against her. The comment has totally overlooked the indisputable fact that taking care of 2 young and dependent children is a tiring and challenging job, especially with KK who is a child of special need. Besides, needs of the children are ever-changing with their age and other development. Even if (just assuming) the mother needed not enlist the help of the others in the caring of the children at the time of the trial leading to the 2^nd DC Judgment, it does not necessarily mean that she needs no assistance in the future.  Here, I take note that the father himself in this trial acknowledged that with KK growing older and bigger, his carer would have difficulty in holding and carrying him and thus third party assistance, such as a maid, may be required.

21.The father also attempts to rely on the alleged new evidence to prove that the mother was not earnest in saying that she needed the grandparents’ assistance, since she is already formulating plans to send AK to the American (International) School in Japan and to move away from the maternal grandparents.  The new evidence is said to be some email correspondences between the parties subsequent to the Judgment, namely:

(1) An email from him to the mother’s solicitors dated 7 January 2015;

(2) An email from the mother’s solicitors to him dated 7 January 2015;

(3) An email from the mother dated 11 January 2015;

(4) An email from him dated 12 January 2015;

(5) An email from the mother dated 15 January 2015; and

(6) An email from him dated 23 February 2015;

22.Pausing here, I note that these emails are disclosed not by way of an affidavit, but simply attached to the father’s written submission or tendered to this court during his oral submission. If broadly described, they relate to the mother’s request for the father to repay her legal costs and outstanding MPS, etc, and if so, they can send AK to American (International) School in Japan for her to receive perfect Japanese/American education. I note further that there is disagreement between the parties in this hearing as to who initialled the idea of the mother/children’s moving closer to American (International) School, if AK was to study there.

23.Mr Clough for the mother objects to the production and reliance of these emails on the grounds that (1) this court can and should rely on the evidence as at the trial only, but not subsequent to it; (2) the criteria set out in Ladd v Marshall [1954] 1 WLR 1489 on admission of new evidence are not met.

24.The principles set out in Ladd v Marshall (supra) governing the admission of new evidence after trialare well-known, but are repeated below for the benefit of the unrepresented father. In order to have his new evidence admitted, he has to show that,

(1) the evidence could not have been obtained with reasonable diligence for use at the trial;

(2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

(3) the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

25.To set the records straight, American (International) School in Japan is first mentioned in the re-examination of the mother in the trial, as a result of the father’s concern when cross-examining her on the inadequacy (or lack) of English training and international exposure in local Japanese school. The mother, in re-examination, admitted that the best arrangement would be for AK to study both languages of Japanese and English in American (International) School in Tokyo, Japan, which is about 2 hours away from the grandparents’ home if by train. However, considering her present financial situation, she could only afford to send AK to local Japanese school. She did not say in the trial that she would move away from the grandparents’ home even if AK was to study in American (International) School.

26.If read in chronological order as a whole, these emails are far from showing that the mother has formulated a plan to move away from the grandparents’ home and to move closer to American (International) School. At the most, they can only be taken as discussion between the parties subsequent to the trial on possible education arrangement of AK in Japan with pre-conditions (such as the father’s payment of her legal costs and stability in maintenance payment) and consequential arrangement (such as moving closer to American (International) School) that may be made, in order to address to the father’s concern mentioned above.

27.Under the circumstances, even if these emails are to be admitted, it would not, in my view, advance the father’s case any further and thus have no important influence on the outcome of the trial. In this regard, Mr Clough’s submission is accepted by me.

28.My conclusion is to reject these emails and find that there is no reasonable prospect of success on this argument.

Ground (3)

29.The father’s 3^rd proposed ground of appeal is a repetition of what he has already said/submitted in the trial, which I have considered. There is thus no need for me to analyse further on this ground, but would simply refer to what I have said in para 72 – 82 of the Judgment.

30.I see no reasonable prospect of success on this ground.

Stay

31.Given my conclusion that there is no reasonable prospect of success of the father’s intended appeal, it follows that his application for stay should not be allowed. Further delay would lead to the inevitable and undesirable result that the children would miss the school term which commences in April in Japan.

Conclusion

32.The parties already indicated in this hearing that they accepted costs should follow the event.

33.Due to the matters set out above and for completeness, I would repeat what I have concluded and ordered in this hearing:

(1) The petitioner’s summons filed on 19 January 2015 for leave to appeal is dismissed;

(2) The petitioner do bear the respondent’s costs of this application to be taxed if not agreed, with certificate for counsel;

(3) The respondent’s own costs be taxed in accordance with the Legal Aid Regulations;

(4) This order be drawn up by the respondent.

The Petitioner (father) acting in person and present

Mr Neal Clough instructed by Messrs Massie & Clement (on the instruction of the Director of Legal Aid) for the Respondent (mother)

[1] The father’s 27^th affirmation [1/192/§§64-66]

[2] P.9 of the Japanese legal opinion [2/492]

[3] The father’s 29^th affirmation [1/223//§§51]

[4] P.9-11 the Japanese legal opinion [2/492-494]