BKGGB also known as NGGB v. BKND

FCMC 1410/2019

[2021] HKFC 7

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 1410 OF 2019

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JUDGMENT
(Leave to appeal)

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1.  The Respondent father (“F”) seeks leave to appeal against my direction made on 11 December 2020 in relation to an issue concerning the children.

Brief background of the case

2.  The parties were married on 21 June 2014.  Two girls aged 5 and 2 respectively have been born in wedlock.  A petition for divorce based on unreasonable behaviour was issued by the Petitioner mother (“M”) on 4 February 2019.

3.  On 24 December 2019 Messrs Withers, solicitors for M, wrote into Court asking for urgent leave for M’s application to relocate the children of the family from Hong Kong to the United Kingdom to be fixed and heard at the same time as the CDR hearing, which had been fixed for 17 January 2020.

4.  In the letter, it is stated that:

“The Mother had not been receiving financial support from the Father since January 2019 and she is struggling to make ends meet in Hong Kong. The Mother has asked for the Father's written consent to relocate the children to the UK on 2 December 2019, although no reply has been received to date. In view thereof, the Mother has no choice but to seek the assistance of the Court to deal with this matter.”

5.  Although leave was granted, F, who was then acting in person, wrote and asked for leave to postpone the hearings fixed for 17 and 30 January 2020 and attached a sick leave certificate with the single sentence that:

“F is unable to attend Court for 12 weeks from 06/01/2020 due to medical reasons.”

6.  It was not surprising that Withers objected. They wrote in on 9 January 2020 and said:

“We are very concerned about the bona fides of the Father’s request for an adjournment of the upcoming hearings on 17 January 2020 and 30 January 2020 on the basis of an alleged but unidentified medical condition for which the Father fails to provide any detail or explanation. The Father’s alleged medical condition has not stopped him from being able to attend access with the children. Without such evidence and a proper explanation from the Father we cannot consent to the Father’sapplication.

7.  F failed to attend the hearing on 17 January 2020.

8.  As Ms Rattigan representing M submitted that F had indicated at the hearing before Deputy Judge D To on 10 September 2019 that he would consent to M’s application for relocation and yet he failed to attend the hearing by reason of a medical condition, a half day CDR was fixed for the afternoon of 30 March 2020 (“2^nd CDR”) so as to ascertain F’s wishes.

9.  It is worth noting that at the hearing before my learned colleague, F said the following, which can be found on page 11 of the transcript:

“Well, Your Honour, in the submissions, my wife has said that if she can’t afford to stay, she would have to go back to the UK, and I’m in support of that because I’d be more than happy to go back to the UK because for me it’s expensive to have two households in Hong Kong. I had said to her five years ago that if she wishes to give up work, and she can do that, then she can go back to the UK.”

10.  In the meantime, with the mutual consent of the parties, M and the children had indeed returned to the UK for a short period. But because of the pandemic, they could not return to Hong Kong as per the parties’ agreement and by virtue of a few applications made by M, leave was granted by me to allow M and the children to stay outside the jurisdiction until 28 June 2020.

11.  At the 2^nd CDR, Mr Egerton representing F did not indicate clearly whether F would consent to M’s application for relocation.  Mr Egerton instead drew this Court’s attention to the fact that at the September hearing before my learned colleague, F was acting in person. Mr Egerton, however, stated that custody was in dispute because F asked for joint whereas M only offered sole custody to herself.  Mr Egerton also said that F would like to have unsupervised access.

12.  Subsequently, a 3^rd CDR with one day reserved was fixed for 9 July 2020 (“3^rd CDR”).

13.  At that hearing, Mr Egerton told this Court unequivocally that relocation was not agreed.

14.  As the parties failed to reach an agreement, a 4-day trial on relocation was fixed to be heard from 15-18 December 2020.

15.  On 25 November 2020, Messrs Oldham, Li & Nie (“OLN”), solicitors for F, wrote to this Court asking for leave of the Court to grant permission for Ms Takahashi, a UK Social Investigation Officer, to attend the first day of the Trial by way of VCF (Video Conferencing Facility) for the reason that there had been material non-disclosure by M, involving the children, the UK police and Bracknell Forest Council back in October 2019 and putting forward wrongful allegations against F of child sexual abuse. Therefore, their counsel would like to cross-examine Ms Takahashi as the content of her report contains many untruthful allegations against F, and they were of the view that it was highly improper because F was not interviewed, nor were the children. They also said that it was only a matter of procedural fairness for Ms Takahashi to give oral evidence, otherwise the content and the recommendations in her report should not be admissible as evidence for these proceedings.

16.  As there was only one set of VCF available in the Family Court and because of the latest development of the COVID-19 pandemic, only half of the courts were in operation. I gave the direction on 3 December 2020 that the VCF was not available from 15-18 December 2020, and therefore F’s application could not be entertained.

17.  On 7 December 2020, OLN wrote to this Court again, asking for leave to set down a hearing urgently to deal with F’s application to adjourn the Trial and for there to be a fact finding hearing before the Trial. They said:

“2…..the Court has indicated on 3 December that it is not possible for VCF to be arranged for Ms Takahashi to be cross-examined at the Trial. However, given the serious allegations of child sexual abuse and possession of child pornography against F made by M, which have been relayed to Ms Takahashi and apparently relied on by her, it is necessary, pursuant to Practice Direction SL10.1 and relevant case law in Hong Kong, that there is a fact finding hearing in relation to these serious allegations before the Trial on custody, care and control, access and relocation can proceed.....

3…..If the Trial does proceed without a fact finding hearing, the learned Judge will not be able to make any finding of fact as to whether such allegations are true as there is no expert evidence before her to do so and indeed, no evidence from M who has made the allegations and who carries the burden of proof.

5. We enclose for the learned Judge’s reference:-

5.1. Summons; and

5.2. Affidavit of Stephen John Peaker dated 7 December 2020 (without exhibits)

6. We would be grateful if you could kindly place this letter and its enclosures before the learned Judge for her consideration and further direction, so that leave can be granted for F’s application to be returnable urgently sometime this week at the Court’s convenience, failing which that it be listed at the 1^st day of the Trial i.e. 15 December 2020.”

18.  By way of further direction on 9 December 2020, I ordered amongst other things that, “Upon the F’s undertaking to pay for VCF, leave be granted for Ms Takahashi to attend the hearing fixed on 24 December 2020 by way of VCF in Court 4.”

19.  On the same date, OLN wrote to this Court again stating:

“Our client maintains that Clinical Psychologist Reports and a fact finding hearing are absolutely necessary before the Trial as a matter of proper legal procedure, M is well aware that our client does dispute the fact that M brought up her wrongful allegations of unlawful possession of child pornography since her Form J on 30 April 2019, and of child abuse since August 2019, as F maintains that the wrongful allegations are untrue. This stance has been maintained by M notwithstanding the learned Judge’s comments on 30 March 2020 and 9 July 2020 that M’s allegations are not substantiated, and she now seeks that Orders are made in this matter relying on those wrongful and unsubstantiated allegations.”

20.  On 11 December 2020, I directed that in the light of my direction given on 9 December, i.e., a hearing with the aid of VCF be held on 24 December 2020, the application for a fact finding hearing be refused.  It is this particular direction that F is seeking leave to appeal.

Applicable legal principles

21.  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.

22.  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” (See: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011.

Grounds of Appeal

23.  First, it is submitted that this Court has erred in law by summarily refusing the application made in paragraph 1 of F’s summons dated 7 December 2020 for a fact finding hearing without conducting a hearing on the application and affording F an opportunity to be heard, thereby in breach of the relevant rules of the Court, which are about F’s right to be heard under the Basic Law and the rules of natural justice.

24.  It is submitted that this Court has erred in law by failing to order a fact finding hearing pursuant to the applicable legal procedures set out in (1) the judgment of His Honour Judge Bruno Chan at §49 of CLL v SW (FCMC 10564/2009 dated 17^th December 2012), when the learned Judge, referring at length from the leading English case of Re H and R (Child Sexual Abuse: Standard of Proof)[1996] 1 FLR 80, set out the general principles regarding the standard of proof, particularly as to possible future harm, on the basis of the child abuse instances alleged by the mother and (2) the decision of Her Honour Judge Melloy in LACHY v YC (Fact Finding Hearing) (FCJA 2057/2016 dated 21^st November 2017) about the requirement of a fact finding hearing where allegations of child abuse have been made. These authorities have not been challenged or appealed against, and have remained good law in Hong Kong and (3) in Practice Direction SL 10.1 regarding the relevant protocols that should be adopted for cases of child domestic violence.

25.  This Court has also erred in law by refusing the Respondent’s application for a fact finding hearing on the ground that this Court had directed, by way a letter dated 9^th December 2020, for Ms. Noriko Takahashi, an ISS Officer (the “ISS Officer”), to testify via video conferencing facilities (VCF) on 24^th December 2020, which could not be a substitution for a fact finding hearing under applicable legal procedures and should, instead, be part of the fact finding exercise;

26.  It is submitted that this Court has also erred in law by summarily refusing a fact finding hearing by simply relying on a summons and an affidavit in support dated 7^th December 2020 without providing any authority or any rule of the Court and / or hearing the Respondent’s application.

27.  Finally, it was wrong for this Court to refuse a fact finding hearing against the weight of overwhelming evidence with which the Petitioner was wrongfully alleging that (1) the Respondent had inflicted child sexual abuse and unlawfully possessed child pornography, (2) that there is an ongoing police investigation being carried out, (3) she has engaged overseas agencies including the UK police and the Bracknell Forest Council, who have relied on her wrongful allegations, (4) the Petitioner has declined to withdraw these wrongful allegations and  continued to pursue them as set out in Withers’ latest letter to the Court dated 10^th December 2020.

28.  This Court has erred in fact by refusing the Respondent’s application for a fact finding hearing on the basis of assuming that the ISS Officer was available to testify on 24 December 2020, contrary to the unchallenged letter from the appellant’s solicitors to the Court dated 11 December 2020 (the email from the ISS Officer dated 10 December 2020 enclosed) that the ISS Officer would in fact be unavailable to testify on 24 December 2020.

Discussion

29.  I have to state at the outset that the summons for a fact finding hearing has never been issued, even up to today.  What this Court has actually refused was leave to urgently set down a hearing for F’s application to adjourn the trial on relocation, and for there to be a fact finding hearing.

30.  My main reason for refusing to grant the said leave was because I consider it F’s delaying tactics.

31.  In the letter from Withers to the Court dated 8 December 2020 opposing F’s intended application (“the letter from Withers”), it states:

“There is no need for a fact finding hearing. M has expressed her concerns to F and to the Court about F’s conduct as early as in the First Appointment hearing on 6 May 2019, after the police raid which took place on August 2018. M’s concerns were further addressed in her 3^rd Affirmation filed on 13 January 2020, especially after the discovery of the pornographic collection, and in her 5^th Affirmation filed on 2 June 2020 to which F has replied in his 4^th Affidavit filed on 17 April 2020 and his 12^th Affidavit filed on 18 November 2020. M’s concerns are not new to F and his legal team.”

32.  I agree.  With respect, the possibility of holding a fact finding hearing was first raised at the 2^nd CDR hearing.  Mr Egerton, the then Counsel for F mentioned it a few times:-

Mr Egerton[1]: the issue of the allegations against my client, the child pornography, that was an event with the police coming to

the property in August 2018.  It is dealt with in the Social Welfare report.  The Social Welfare officer deals with this issue.  She makes a recommendation of joint custody and access.

….and of course my client is in court this time and he’s hearing what my learned friend has carefully conveyed to the court as being her lay client’s instructions, namely that her client is of the view that these allegations are still alive because they haven’t been investigated.  There has in a sense been a fact-finding exercise.

33.  Mr Egerton said later on at the same hearing[2]:

“ultimately, those are issues that have been canvassed in the Social Welfare report, but ultimately, if the mother is going to go forward with those concerns preventing her agreeing to staying access and unsupervised access, then it would seem that there would ultimately have to be a fact-finding evaluation to determine whether or not those concerns of the mother have any basis, because until they are resolved, we are in a situation where the mother is saying she opposes staying access to a daughter of 5 who spent considerable periods of time with the father….

…..I entirely recognize that the focus of the trial is going to be about joint custody and it’s going to be about access in the context of relocation…..[3]”

     Mr Egerton submitted later on at the same hearing again[4]:

“….I would be entirely in agreement save and except….I think there is a difficulty if the court is going to be making findings of that fact as to whether the mother’s allegations are true and correct without a fact-finding exercise because it’s ……the mother is making the most serious allegations.”

34.  At the 3^rd CDR Mr Egerton, still representing F, submitted that:

“I would like to take your Honour to the mother’s first form J….this is the matter that is the cause and root of so many of the difficulties in this case….This is the investigation by the police on 15 August 2018 in the context of a warrant.

….the wife’s case…..is that this investigation is ongoing. There is absolutely no evidence for that…..she has used this investigation in August 2018, nearly two years ago, to mount a case of the most serious criticism of my client in relation to his two daughters”[5]

35.  Despite Mr Egerton’s submissions at the two hearings, no summons whatsoever has been issued and as I mentioned it was the VCF that they initially asked for on 25 November 2020 and the reason that I did not entertain the application was purely because the facility could not have been available during the 4-day trial.  As the trial on relocation was in the meantime transferred to be heard by Deputy District Judge T Kwan, who kindly helped out during the COVID-19 so that our workload could be somewhat relieved and as soon as I came to know that her judicial appointment had been extended, I immediately reserved 24 December 2020 as an additional date to hear the evidence of Ms Takahashi.  Furthermore, upon learning from OLN that Ms Takahashi was not available on Christmas eve, I wrote back to solicitors for both parties on 14 December 2020 that the VCF hearing would be re-fixed to 29 December 2020.

36.  With regard to the issue of calling for a Clinical Psychologist Report, I would adopt what is submitted in Withers’ letter when it says:

“…the issue of calling a Clinical Psychologist Report has also been decided at the last hearing on 16 November 2020 after F’s last minute application dated 10 November 2020 for inter alia, a psychological report to be prepared on the mother ‘because we are concerned that the way she is behaving and acting…proclaiming to everybody that the father is a child pornographer’. Ms Frances Irving (Counsel representing F) conceded to the issue herself and informed the Learned Judge that she did not have jurisdiction to make such an order. Therefore, F and those advising him should be estopped from raising this issue again.”

37.  I agree.  In my view, to adjourn the trial on relocation to give way to a fact finding hearing as to M’s allegation is not necessary because: -

(i)     The question of care and control is never in dispute.  Parties only argue joint custody or sole custody to M.  M’s allegation of sexual abuse and child pornography would not affect the final decision.  As for staying and/or supervised access, counsel for both parties could address the Court at the trial on relocation and cross-examine witnesses in this regard.

(ii)     If F thinks otherwise, he should have made the application earlier in order not to delay the trial on relocation.

(iii)     In any event, a trial on an issue concerning the children is also a fact finding exercise.  If M’s allegations against F are relevant to the relocation issue, I am sure the counsel representing M and F will draw the trial judge’s attention to them.

38.  Furthermore, I also share what has been raised in Wither’s letter:

“F’s current application is just another litigation tactic to delay these proceedings. M’s relocation application was made on 2 January 2020 and both CDR hearings and the Trial has been adjourned as a result of F’s conduct:

(i) F agreed to M’s relocation at the hearing on 10 September 2019….but he then changed his stance;

(ii) F applied for legal aid in October 2019 when he clearly has ample funds, now evidenced by his legal representation, which resulted in the proceedings being stayed for 42 days;

(iii) The 1^st CDR hearing was fixed for 17 January 2020. F was not present and had in fact tried to request for an adjournment on the basis of an unidentified ‘medical condition’ for which he failed to provide any detail and/or explanation other than a vague note relating to an ear infection. He asked for the hearing in relation to M’s MPS application fixed on 30 January 2020 to be adjourned on the same basis. As F did not attend the hearing, a 2^nd CDR was fixed on 20 March 2020;

(iv) As the adjourned CDR hearing fixed for 30 March 2020, updated social welfare report and International social welfare report were called for to be filed on 6 June 2020, and the expenses were to be paid by F.  It was F who insisted on having the ISS report when M said it would not be necessary, however, he delayed payment for the same.  As a result, a 3^rd CDR hearing was fixed on 9 July 2020 and the trial initially fixed for 6 July 2020 to 9 July 2020 had to be r-fixed to 15 December 2020 to 28 December 2020.  Now that the ISS report has been filed and F does not agree with the report, he seeks to delay the Trial again.”

39.  I share the same view.

40.  In light of the reasons given, there is no prospect of success in any of this intended appeal. I shall therefore order that F’s summons dated 14 December 2020 for leave to appeal be dismissed. There is also no other reason in the interest of justice for the intended appeal to be heard.

Costs

41.  I fail to see why costs should not follow the event. I therefore make an order nisi that F do pay M costs of the summons, with certificate for counsel, and such costs order nisi be made absolute if no application is made by any party to vary the same within 14 days.