PSD v. TFM

FCMC 12549/2022

[2025] HKFC 110

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO.12549 OF 2022

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Decision
( Leave to Appeal )

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A.  Introduction

1.  This is the decision on the Petitioner Father’s Summons dated 12 March 2025 (“Summons”) seeking leave to appeal against the judgment of this Court handed down on 26 February 2025 (“Judgment”) on the custody, care and control and access arrangement of the two children of the family, namely D and S.  The terms defined in the Judgment are adopted in this Decision.

2.  For reasons given in the Judgment, I ordered under paragraph 129 of the Judgement that, inter alia, (a) there be joint custody to the parties and (b) the parties do have shared care of the Children on a roughly 50:50 ratio, in the manner set out under paragraph 113 of the Judgment.

3.  Whilst represented at trial, the Father is now acting in person. As illustrated below, the Father filed draft grounds of appeal with voluminous new documents without leave.  The grounds put forward by the Father without legal assistance are also in a rather less organised manner. It took the Court considerable effort to distil the real grounds upon which the Father is relying.  Doing the best I can here, it appears to me that the Father’s grounds of appeal can be summarised as follows:

(a)  the Court’s decision is “manifestly unjust” and the orders are “not in the best interest of the Children” (Ground 1).

(b)  the Court failed to consider the “clear bias” of the SIO in his SIRs, and that the SIRs should be completely disregarded as they are “biased” and were “written by someone who appears incompetent” (Ground 2).

B.  Procedural background

4.  The trial was conducted on various days in May and June 2024, with both parties being legally presented.

5.  By a Notice to Act in Person dated 16 January 2025, the Father began acting in person in these proceedings.

6.  On 26 February 2025, the Judgment was handed down by this Court.

7.  On 12 March 2025, the Father filed the Summons, an 11-page homemade draft grounds of appeal, a 1-page written statement/skeleton submission, and three medical certificates of D issued in 2023.

8.  The Court later wrote to the Father, directing him to comply with the “New Arrangement for Application for Leave to Appeal in the Family Court” (dated 13 August 2018), and attaching a copy of the same.

9.  On 21 March 2025, the Father wrote to the Court, attaching (1) a letter dated 14 March 2025 purportedly written by D, (2) a letter dated 12 May 2024 purportedly written by D and (3) an affidavit/letter to judge written by the Father explaining the circumstances leading to the 12 May 2024 letter being written by D, all without the leave of the Court.

10.  On 24 March 2025, the Father wrote to the Court, saying that he had already filed his application for leave to appeal in compliance with the “New Arrangement for Application for Leave to Appeal in the Family Court”.

11.  On 3 April 2025, the Father filed voluminous documents, including letters, screenshots of WhatsApp conversations, and some 19 CDs, without prior leave of the Court.

12.  On 22 April 2025, the Father purportedly filed a “skeleton submission” which was in fact another set of materials including screenshots of WhatsApp conversations and CDs, purportedly covering some events from January to April 2025, also without prior leave of the Court.

13.  On the same date, Mr Chan acting for the Mother filed his skeleton submissions in opposition.  In gist, he submitted that:

(a)  The Father’s application papers were drafted in a manner that was extremely difficult to comprehend and thus making the Mother difficult to discern the grounds of appeal which the Father intends to rely upon.

(b)  The voluminous documents filed by the Father on 21 March 2025 and 3 April 2025 appeared to constitute either new evidence and/or submissions subject to Flywin objections, with their relevance being unclear.

(c)  Unrepresented litigants should also abide by the rules and procedures of the court and thus the Father should address all procedural irregularities before his application for leave to appeal can be substantively deposed of.

(d)  Several directions were then proposed to address the above procedural issues.

14.  With respect, I do not accede to Mr Chan’s invitation to give further procedural directions:

(a)  I agree with Mr Chan that the state of the draft grounds of appeal and related documents is unsatisfactory.  However, I also bear in mind that the Father is now unrepresented. Even if further procedural directions are given to the Father, it is in my view unlikely that he would eventually file a set of application papers as succinct and organised as those prepared by lawyers.  This is also evident from the fact that, despite having been referred to the “New Arrangement for Application for Leave to Appeal in the Family Court”, the Father still filed numerous new materials after claiming to the Court that he had complied with the same.

(b)  In any event, the Mother has filed her 5^th affirmation dated 21 May 2025 to oppose the Father’s application, containing her responses to the Father’s allegations in the draft grounds of appeal (although in the affirmation the Mother referred them as the Father’s “4^th affidavit”).  It seems to me that the Mother and her legal representatives could still understand the Father’s arguments and make a reply accordingly, and there is no real prejudice on the part of the Mother.  Under such circumstances, I do not see any practical necessity to make further directions merely to ask the Father to remedy procedural irregularities.

(c)  More importantly, this case concerns children matters.  It goes without saying that children’s welfare is of utmost importance and any litigation concerning children matters shall be concluded as soon as possible.  Having further call-over hearing or imposing an unless order for the Father to file revised grounds of appeal as suggested by Mr Chan would only delay the ultimate conclusion of this application and incur further costs. The Mother is legally aided. Public resources should be preserved when appropriate.

15.  Accordingly, I shall proceed to consider the Father’s application for leave to appeal by paper disposal, which is the usual procedure.

C.  Applicable Legal principles

16.  Under section 63A(2) of the District Court Ordinance (Cap. 336), leave to appeal shall not be granted unless (a) the appeal has a reasonable prospect of success or (b) that there is some other reason in the interests of justice that the appeal should be heard.

17.  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”: KNM v HTF (unreported, HCMP 288/2011, 7 September 2011) per Fok JA at §9; see also Hong Kong Civil Procedure 2025, RHC 59/2A/4.

18.  It is well established that in an application for custody involving the exercise of judicial discretion, it is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong, that an appeal court is entitled to interfere: RK v YS (unreported, HCMP 1969/2012, 1 November 2012) per Kwan JA at §6; see also Hong Kong Civil Procedure 2025, RHC 59/2A/4.

19.  The court is not required to consider each and every point raised during a trial.  One function of the judge is to be selective and to make findings that are relevant and necessary for the disposal of the issue.  It is not incumbent on the judge to elaborate or extend judgments by making findings on every area or every issue, and it is open to a judge to confine him or herself to those matters which he or she selects as significant and necessary: Re F (Shared Residence Order) [2003] EWCA Civ 592 per Thorpe LJ at §19.

20.  In the context of an application involving children matters, leave to appeal shall be granted only if the answer to any one of the following four questions is “yes”:

(a)  Did the judge arguably make any error of law in reaching his conclusion?

(b)  Was there, arguably, insufficient material on which the judge could properly make the findings of fact and the assessments of the witness which he did make?

(c)  Is it arguable that the order he made was not properly open to him in the exercise of his judicial discretion?

(d)  Is there, arguably, any error in the exercise of that discretion which enables the appeal court to say that his order was, arguably, plainly wrong?

See: Re W (Permission to Appeal)[2008] 1 FLR 406 at §§20-21 and YSYM v LHB [2020] HKCA 586 at §§67-68.

21.  For the “some other reason” ground for granting leave to appeal, it is impossible to give an exhaustive list of the circumstances that the Court of Appeal would find that there is some other reason in the interest of justice that an appeal should be heard.  The Court of Appeal may grant leave if the question is one of general principle, decided for the first time, or a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage: Hong Kong Civil Procedure 2025, RHC 59/2A/4.

22.  Regarding an application to adduce fresh evidence for the purpose of appeal, the principles are trite and clearly stated in the well-known authority of Ladd v Marshall [1954] 1 WLR 1489, i.e. that the party seeking to adduce such fresh evidence must satisfy three conditions including:

(a)  The evidence could not have been obtained with reasonable diligence at the trial;

(b)  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

(c)  The evidence must be such as would presumably be believed, or in other words, it must be apparently credible though it need not be incontrovertible.

23.  The courts have adopted a strict approach when applying the Ladd v Marshall conditions, since a litigant who has obtained a judgment should not be deprived of that judgment without very solid grounds: Hong Kong Civil Procedure 2025, §59/10/8.  Such strict approach was also recently confirmed by the Court of Appeal in Re China Properties Group Ltd [2025] HKCA 302 at §24.

24.  Despite so, there are exceptional cases where the court may exercise discretion to adduce fresh evidence notwithstanding the Ladd v Marshall conditions not being satisfied, one of which is an appeal involving the welfare of minor children: Hong Kong Civil Procedure 2025, §59/10/12.

D.  Analysis

The Father’s attempt to adduce new evidence

25.  I should first deal with the Father’s attempt to adduce numerous pieces of new evidence, including D’s medical certificates, photos, letters, email correspondences, screenshots of WhatsApp conversations and audio recordings.

26.  According to paragraph 10 of the “New Arrangement for Application for Leave to Appeal in the Family Court”, no further documents can be filed by either party without the prior permission of the Court, and a party seeking such permission must write to the Court and inform the other party.  No formal application was ever made by the Father.

27.  In any event, even if a formal application was made, I would have dismissed the same:

(a)  For those new materials concerning events happened before trial, the Father has never explained why the same could not have been obtained or adduced as evidence before trial.

(b)  For those new materials concerning events which happened after trial, I am unable to see their relevance.  They demonstrate nothing but the continuing parental conflict up to date.

(c)  In any event, all of these new materials would not have any important influence on the Judgment.  They do not serve any real purpose except to reiterate the Father’s stance in respect of the past incidents and his views towards all other persons involved in these proceedings, and to re-litigate various factual disputes.

(d)  Moreover, as I repeatedly emphasised to the parties, those historical singular incidents carry little relevance to the real key question before the Court, namely the best practical arrangement for the Children in going forward.  Therefore, the Father’s attempt to introduce the aforesaid various materials is in my view not of any assistance.

28.  I do not lose sight of the letter dated 14 March 2025 purportedly written by D, which says that: “I wrote that letter by myself.  I want to stay with Daddy, I meant what I said! And I’m sometimes scared of mummy.” By “that letter”, I believe D should be referring to the letter dated 12 May 2024 purportedly written by herself, which was the subject of paragraphs 67 to 71 of the Judgment.  I am of the view that this new letter similarly carries no weight at all.  My analysis at paragraph 71 of the Judgment equally applies here:

“71. In the Father’s Closing submission, Mr. Swainston conceded that D’s letter in the circumstances carries minimal weight. I have no hesitation here to state my findings that by the above, the content of the letter carries no weight to my consideration on this matter. The only point of relevance I will consider, as a whole, is whether this is yet another piece of evidence reinforcing the SIO’s observation that the Children are continuously being trapped in the middle between parental conflicts.”

29.  Accordingly, all information provided, and materials filed, by the Father which were not in the evidence at trial will be disregarded when I deal with his application for leave to appeal.

30.  For the sake of completeness, even if I exercised my discretion to admit such new evidence on the ground that it concerns the Children’s welfare, it would have changed nothing in my following analysis on the prospects of success of the Father’s intended appeal.

Ground 1 – the Court’s decision is manifestly unjust, and the order is not in the best interest of the Children

31.  In the draft grounds of appeal, the Father did not provide any particular argument concerning any error in the Judgment when I was considering the Children’s welfare and best interest.  Neither did the Father pinpoint to any part of the Judgment which may show that my decision contains any error of law or is otherwise manifestly unjust in any way.

32.  In reaching my decision, I set out the relevant legal principles at paragraphs 19 to 29 of the Judgment and applied them accordingly.  In particular, I reminded myself on the importance of the Children’s welfare and the welfare checklist as discussed at paragraphs 21 to 22 of the Judgment.  I also provided my reasons and considerations comprehensively in the Judgment to explain my decision.

33.  For the sake of clarity, I emphasise that I do not lose sight of the well-being and safety of the Children, in particular D who was allegedly subject to sexual maltreatment by Uncle G.  I duly and carefully paid sufficient considerations to the Uncle G incident in light of the gravity and seriousness of the allegations, and thus eventually concluded at paragraph 107 of the Judgment that Uncle G shall not be present when the Children are with the Mother at the MFH or otherwise until the conclusion of the police investigation.

34.  I fail to see any solid argument from the Father to establish that my decision is manifestly unjust or not in line with the best interest of the Children.  I have no hesitation to conclude that Ground 1 has no reasonable prospects of success.

Ground 2 – The Court failed to consider the clear bias of the SIO

35.  In support of this complaint, the Father set out a long list of questions for the SIO to answer and a bunch of matters which were allegedly “trivialized” or “ignored” or “mitigated” by the SIO in the SIRs.  He also made abundant allegations against the SIO for telling lies, failing to mention various matters in the SIRs, and making false accusations against the Father etc.  He also claimed that the SIO failed to demonstrate any common sense and provided inaccurate observations throughout the SIRs.  He further repeated his dissatisfaction of the Mother, the members of the maternal family and the environment of the MFH, which were allegedly not properly regarded by the SIO.  However, I do not think any of these points is meritorious.

36.  First, the SIO testified at trial and was subject to cross-examination by the Father’s legal representative.  The SIO’s evidence took up the first two days of trial and was extensively set out under paragraphs 35 to 51 of the Judgment.  I paid heed to his testimony and the SIRs and found them to be balanced, setting out the views of all stakeholders and his own observations without any ostensible partiality.  Notwithstanding the Father’s complaint lodged to the Director of Social Welfare on 26 June 2023 against the SIO for being “incompetent, ill-educated and not fit” for having any influence over the future of the Children, the 2^nd, 3^rd and 4^th SIRs subsequently prepared by the SIO still set out the views of all stakeholders, including the Father, in a detailed and fair manner.  The SIO offered sufficient opportunity for the Father to provide his account and recorded the same in the SIRs.  Neither did the SIO demonstrate any prejudice or bias towards the Father during trial.  He included both positive and negative features of both parents in his SIRs. I am unable to see any solid basis to suggest the SIO having any bias as alleged by the Father.

37.  Second, the Father referred to a list of matters which allegedly were not considered or not done by the SIO in the SIRs.  However, quite a number of them, in particular those concerning the 1^st SIR, were already addressed by the SIO in the subsequent SIRs.  Some of them are only the Father’s own perspectives of several incidents.  A number of them unfortunately demonstrates the Father’s misunderstanding of the role of the SIO, for example, the alleged failure to properly research into the side effects of Zoloft, failure to criticise the Mother for living out at M’s Residence for three days during April 2021 and November 2022, or failure to order an independent psychiatric or psychological assessment of both parties.  None of these assertions bears fruit. In any case, the mere omission of any matters or inaccuracies in the SIRs, even if any, cannot be taken to suggest that the SIO was biased.

38.  Third, the Father accused the SIO of telling lies and making false accusations against the Father.  I am of the view that the investigation of the SIO is helpful to the Court in understanding the matter holistically and that, in any event, the focus of my analysis has always been on the welfare of the Children in going forward, as opposed to the credibility of the SIO, or the Father, as a witness per se. I have already fully explained my reasoning in reaching the conclusion I did and it is clear that the evidence of the SIO was only one of many factors to be taken into consideration.

39.  Fourth, as mentioned above, the various arguments by the Father are in essence for re-litigating his allegations towards the SIO and other professionals involved in this case, as well as the Mother, members of the maternal family and the environment of the MFH.  He is basically reiterating his own stance and version of facts which were reflected in the SIRs.  The same was repeated by the Father’s testimony at trial and were duly considered by the Court in the Judgment.

40.  In light of the above analysis, I am not convinced that the SIO was in any way biased or otherwise dishonest.  The Father’s allegations against the SIO appear to echo my findings at paragraphs 6 (footnote 2) and 52 of the Judgment that he has lost trust in the SIO and other professionals in these proceedings.  Yet, this cannot amount to a viable ground of appeal.  I have no hesitation to conclude that Ground 2 has no prospect of success.

What is being appealed against?

41.  With respect, the Father failed to make it clear which particular part of the Court’s order is now being appealed against, save on the general grounds as analysed above.

42.  Both parties filed open proposals before the trial, with each seeking sole custody, care and control with staying access to the other party up to three days per week, which is akin to a 50:50 ratio.  They agreed that the difference in terms of practical arrangements was quite small.  The order eventually made by me was that parties shall have joint custody and shared care of the Children on a roughly 50:50 ratio.

43.  In his draft grounds of appeal, the Father repeated his disapproval of the Mother, seemingly to suggest that she is an unfit parent to take care of the Children.  Yet, it was also the Father himself who proposed to give staying access up to three days a week to the Mother.  If the Mother was really so unfit or “unable to cope with her role as a mother” in the eyes of the Father, then it would make no sense at all for the Father to make such an open proposal before and during trial.

44.  On the other hand, the primary contention between the parties was the question of custody.  I already provided my reasoning at paragraphs 122 to 126 of the Judgment to explain why in my view an order of joint custody is in the best interest of the Children.  At nowhere in the draft grounds of appeal did the Father pinpoint any error in my reasoning in this regard.  The other parts of the order are largely similar to what parties were asking for before trial.  It is not apparent towards what end the Father’s intended appeal is to achieve.

E.  Some other reason?

45.  For the sake of completeness, despite not expressly argued by the Father in the draft grounds of appeal, I have still considered whether there is some other reason justifying leave to appeal being granted and have found none.

F. Order

46.  For the foregoing reasons, I cannot see any error of law in the Judgement.  Neither have I found anything to suggest that I fell into any error in exercising my judicial discretion or that I made some findings or conclusions which were not open to me or were plainly wrong.  The answer to any of the four questions in YSYM v LHB(supra)must be “no”.

47.  Albeit the Father did not succeed in this appeal, this case on the other hand is acknowledged by the parties at all times to be a high-conflict children matter; prima facie, I am not persuaded that the Father has gone beyond litigating on what he subjectively believes to be best for the Children.  I shall make no order as to costs in the circumstances.

48.  Accordingly, I order that:

(a)  the Summons be dismissed;

(b)  there be no order as to costs;

(c)  the Mother’s own costs (with certificate for counsel) shall be taxed in accordance with the Legal Aid Regulations (Cap. 91A); and

(d)  the costs order nisi shall become absolute unless any party applies to vary the same within 14 days.

G. Postscript

49.  I wish to refer to paragraph 4 and 5 of the Judgment, and remind the parties that the Court’s goal is to maximise the opportunity for the Children to go forward and grow up whilst receiving love from parents and expressing their love to parents, instead of being constantly haunted by the parental conflicts caused by the unpleasant past events in the family:

4. Upon confirming their stance and throughout trial, I have encouraged the parties on repeated occasions to focus on the practical aspect of the Children arrangements, and to avoid slipping into arguments on labelling for the sake of it.  I have also informed the parties throughout that the focus of the custody trial is to work out the best arrangement for the Children, bearing in mind their best interests as paramount consideration, in going forward.  It is not a battlefield for the parties to dig up historical singular incidents, each asserting his/her rights and pin-pointing wrongdoings of the other, unless they are relevant to the future arrangements of the Children.  If any single incident bears such importance in requiring the Court for a specific fact-finding exercise, the party alleging such would have been seeking for a specific-issue hearing prior to trial.  Not only no such applications were ever made by either party in these proceedings, but in my view, for the reasons I set out below in this Judgment, these incidents carry little relevance to the real issues before the parties; rather and regrettably, they serve to highlight the fact that the Children were constantly being exposed to parental conflicts during marriage, be it physical and/or verbal.  They have been and still are trapped in the middle of parental conflicts; and by my observation the Children have become somewhat perplexed in the course of these proceedings including when facing professionals.

5. It is a pity that the parties elected to litigate the matter in the way they did despite my comments shared to them in the course of trial.  On the other hand, from the evidence below, it is indisputable that the Children love their parents and vice versa, in their own ways.  This, being the silver lining in the present case, must be preserved at all costs.  Thus, this Judgment shall focus on an arrangement that can maximise the opportunity for the Children to walk out of their current misery, be able to freely express their love to the parents, as well as receiving love from them without fear, in going forward.

(Emphasis added)

50.  I trust that the parties fully understand the above.  It is beyond any doubt that both parents deeply love and care about the Children and vice versa.  The Court sincerely hopes that the parties can put the past behind them once and for all and focus on the future development and welfare of the Children.

Representation: