Z v. X

HCMP 1731/2019

[2019] HKCFI 2627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1731 OF 2019

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D E C I S I O N

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Introduction

1.  These wardship proceedings were issued three days ago on 14 October 2019 by the maternal grandmother of two girls aged about 9 and 4 who is soon to be 5 (“Children”). 

2.  The present urgent application is by the father of the Children to remove them from Hong Kong immediately today until 27 October 2019 essentially for the purpose of attending the funeral of the father’s father (“Paternal Grandfather”) in Beijing                          .

3.  The parents of the Children are from Mainland China, but they were studying and living in the United States for a number of years where they had both obtained Master degrees at      .  They were married in         . in USA in 2001 and had lived in         .

4.  The mother moved to Hong Kong in 2005 after being offered a job here.  Since then she has been residing in Hong Kong, although she has travelled to the Mainland regularly.  The father followed the mother to Hong Kong and in 2005 he set up an investment consultant company in Mainland China, since when he has been residing on the Mainland and he now resides in Shenzhen where the parties have a home.

5.  The Children have been residing in Hong Kong since their birth.  They are now attending an international school in Hong Kong.  The mother ceased working after the birth of the younger girl in about 2015 to take care of the Children.

6.  The mother had also arranged for her own parents to move to Hong Kong from the Mainland to help her looking after the Children. On the present evidence, the mother is the primary carer of the Children.

7.  The Paternal Grandfather is said to be a very influential man in Mainland China,                                                                 

8.  There have been some very serious allegations made by the mother against the father over his violence and threats which seemed to have started even when the parties were in the States.  More recently, there was an incident which took place on 1 January 2019 in Beijing when the parties were said to have an argument over finances and the father allegedly threw a “Rimowa” suitcase at the mother, causing injuries to her face and her front tooth being cracked. 

9.  It was also the mother’s allegation that the father had failed to pay any maintenance for her and the Children since January 2019.

10.  Notwithstanding the incident on 1 January 2019, it would appear that the parties agreed that while the father continues to reside in Shenzhen and the mother and the Children continue to reside in Hong Kong, the mother would take the Children to see their father in Shenzhen every week until the June incident. 

11.  On 1 June 2019, while the mother, her father, that is the maternal grandfather, and the Children were in the Shenzhen villa, there was an incident where the father was said to have attacked the mother and the maternal grandfather, which ended with the maternal grandfather stabbing the father.  While the maternal grandfather was detained in Shenzhen, the mother and the Children returned immediately to Hong Kong.

12.  On 3 June 2019, after receiving threats from the father, including threats to murder her, the mother made a report to the Hong Kong police relating to the father’s alleged threats.

13.  Suffice to say at this stage, although the father was detained by the Hong Kong police when he entered Hong Kong on 5 June 2019, the mother decided to drop charges as the Paternal Grandfather was very ill at that time.  Subsequently, the maternal grandfather was also released by the Mainland police.  It would appear that on about 3 July 2019, as the mother said she needed money for maintenance and legal expenses, she withdrew a sum of US$210,000 from the joint account held in the name of the mother and the Paternal Grandfather. 

14.  As I have said, there were some very serious allegations by the mother of the father’s violence and threats towards her and the Children, and the mother has on 17 July 2019 made an application in the Family Court under the Domestic and Cohabitation Relations Ordinance (“FCMP ___/2019”).

15.  On the same day, the mother obtained an ex parte injunction whereby Judge Ong ordered that the father be restrained from, amongst other things, assaulting, threatening or communicating with the mother and the Children, and the father be restrained from remaining, entering or coming within 500 metres of the mother’s address in Hong Kong and the Children’s school (“Injunction”). 

16.  In August 2019, the mother found a job.  On 24 September 2019, the mother had to accompany her boss, W, to Shanghai to meet with a client about a deal.  W has deposed in an affirmation as to how he last saw the mother when boarding the plane from Hong Kong to Shanghai and afterwards she disappeared and how the father obtained the mother’s mobile phone after her disappearance and the father had sent WeChat messages to him and the Hong Kong office to ask questions about how long the mother had been working there.

17.  Anyway, W had tried to report the matter to the Shanghai police.  The maternal grandmother instructed a mainland lawyer and it was only eventually on 8 October 2019 that the lawyer was able to see the mother for one hour in Shenzhen.  It was then found out after the detention in Shanghai the mother was taken to Shenzhen by the authorities and her detention was allegedly due to the father’s complaint that the mother had stolen money from the Paternal Grandfather, and the father did not disclose to the authorities that the mother is his wife, claiming the mother is his girlfriend.  The mother is still being detained in Shenzhen at the time of this hearing. 

18.  The mother has filed an affirmation while in detention and the evidence before the court strongly indicates that it was the father who made the complaint which led to the mother’s detention.  As a result of the father’s application in FCMP ___/2019, Judge Ong suspended the Injunction.  This led to the issue of these wardship proceedings by the maternal grandmother.

19.  As I have said, the present evidence strongly indicates that the detention of the mother was at the instigation of the father and this in my view demonstrated the influence of the father and his family in Mainland China. 

20.  Mainland China is not a party to the Hague Convention and even though there is the arrangement for reciprocal enforcement signed between the Mainland and Hong Kong, it has not yet taken effect.  Ms Yip has referred this court to L v L (Child Removal – PRC) [2017] HKFIR 588. However, insofar as reality is concerned and as far as this court is aware, two years after the decision in L v L the child in that case has not yet been returned to Hong Kong. 

21.  For this application, the father has offered that if the maternal grandmother is willing to accompany the Children to Beijing, he will pay for bodyguards of her choice for her and if the maternal grandmother is not, the father suggests that his cousin, who lives and works in Hong Kong, to accompany the Children to Beijing.  There has been no supporting affirmation filed by his cousin.  More importantly, the father has only offered a mere undertaking.  The father’s supporting affirmation for the present application has not even been signed or filed at the commencement of this hearing. 

22.  At very last minute, Ms Yip has indicated the father is prepared to deposit a sum in court as security, without indicating any amount.  There is no evidence from the father as to how the undertaking offered by him is going to be enforced by the maternal grandmother in Beijing.

23.  Having considered the evidence from the father, I find the safeguards for the return of the Children after the funeral are completely inadequate and I accept Mr Chu’s submissions that the risk of violence demonstrated by the father’s past actions and the Children not being returned to Hong Kong far outweighs any benefit they may get from the trip for the reasons set out in his submissions.  Mr Chu has also referred this court to the case of Re R (a Child) [2013] EWCA Civ 115.  Having considered the magnitude of the risk of breach of the order if permission is given and the magnitude of the consequence of the breach if it occurs, and having considered the circumstances of this case, the father’s application is refused. 

24.  Incidentally, I will just add I have also been informed that the Children themselves do not wish to attend the funeral.  This is my decision.  I will not allow the father’s application.  I will reserve costs for the time being.