NEKY v. WKC

FCMC 2075 /2022

[2026] HKFC 127

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 2075 OF 2022

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JUDGMENT
( Master’s appeal in respect of holiday removal to Japan )

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Background

1.  On 24 April 2026, the husband (the petitioner)  took out a summons for:

(1)  leave to remove the daughter out of the jurisdiction of Hong Kong for holidays in Tokyo, Japan from either 22-28 July 2026 or 5-11 August 2026;

(2)  the wife (respondent)  to provide a copy of the daughter’s passport and HKID card for him to make the necessary travel arrangements within 3 days from the order, and to provide the originals of these travelling documents to him not less than 72 hours before departure.

2.  Deputy Master G Lau granted the order on 9 June 2026 (“Master’s Order”)  in the terms sought by the husband in his summons, and accepted his undertaking to return the daughter to Hong Kong at the conclusion of the holiday.  This is the wife’s application to appeal the Master’s Order.

3.  The wife’s another summons for stay of execution, ie for stay to provide a copy of travel documents within 3 days to the husband was dismissed by another deputy master on 30 June 2026. The deputy master extended the time for her to provide a copy of travel documents of the daughter to the husband by 3 July 2026. The wife has done so but has also warned the husband not to make any travel bookings by using the information in such travel documents pending this appeal hearing.

4.  By way of a brief background, the parties were married in 2015. They have a daughter born during marriage in 2016. She is now 10 years old. The parties have joint custody with care and control to the wife. The husband enjoys defined access, including staying access, and equal split of long holidays. Details of the access are recorded in the order made by me upon successful CDR held on 17 October 2023.

5.  Importantly, during the course of the child proceedings, the wife repeatedly objected to staying access of the husband to the daughter, claiming that it was not safe to allow the daughter to stay overnight at the husband’s home and that she did not believe that the husband had the ability to look after the daughter.[1] Despite such allegations, the truth is that staying access was put in place since December 2022 and it has been running smoothly. The daughter shares that she is happy at the husband’s place, and she shows a thumb and smiling face to the social investigating officer when asked about the staying access.[2] The daughter is “emotionally bonded” to the husband, and the father-and-daughter’s interaction is described as “natural”, “relaxing and enjoyable”.[3]

6.  On 3 November 2025, I handed down my judgment on the final ancillary relief matters of the parties (“AR Judgment”). Further background of this case and the parties can be gleaned from the AR Judgment, and thus I shall not repeat here. Their divorce was finalised by the grant of the decree absolute on 26 January 2026.

The husband’s application

7.  In support of his application, the husband has filed his 8^th affidavit. He says that he wants to take the daughter to Tokyo for 7 days and take the chance to visit his elder brother who is now residing in Tokyo. He has given details of his plan of hotel and flights to the wife.

8.  In fact, he has already filed his written undertaking to return the daughter upon the conclusion of the intended trip to Japan.

Delay

9.  Order 58 rule 1 (3)  of the Rules of the High Court, Cap 4A (RHC)  states that an appeal from an order of the master to a judge must be issued within 14 days after the order.

10.  The Master’s Order was made on 9 June 2026. The wife should have filed her summons to appeal by 23 June 2026, but she did not do so until 26 June 2026.

11.  The court has a discretion to grant enlargement of time to appeal having considered the factors set out in Order 58 rule 1(3)  of the RHC, namely:

(1)  the length of the delay;

(2)  the reasons for the delay;

(3)  the chances of success of the intended appeal; and

(4)  the prejudice to the other party if time is extended.

12.  Where the delay is inexcusable, the party seeking an extension of time must show a real prospect of success on the merits, not just a reasonable prospect of success (See:  The Hongkong and Shanghai Banking Corporation Ltd v Sy Shun Wu & Ors [2018] HKCA 736; Secretary for Justice v The Hong Kong & Yaumati Ferry Co Ltd & Anor [2001] 1 HKC 125).

13.  In this case, the wife’s appeal was filed during the week when this court and the judicial clerk were both on annual leave, and hence there was difficulty on the part of the listing clerk to liaise with the judicial clerk and obtain the first available date of this court to hear the appeal.  This cannot be taken as any fault on the part of the wife. Further, a mere delay for 3 days is not regarded as very excessive. I am thus prepared to grant the enlargement of time to appeal to the wife.

New evidence

14.  Mr Ken Chan, counsel for the husband, submits that the wife filed her 12^th affidavit on 6 July 2026 (ie merely 3 days before this hearing), and raised new grounds of objection to the holiday summons of the husband, namely:

(1)  the daughter’s alleged fear to travel to Japan;

(2)  flight risk that the husband may not return the daughter to Hong Kong after the vacation;

(3)  the husband lacks the ability to take care of the daughter without the help of a maid.

15.  Mr Chan argues that this belated affidavit is unable to pass the thresholds set out in Ladd v Marshall [1954] 1 WLR 1489, and should be disregarded by this court.

16.  The principles set out in Ladd v Marshall governing the admission of new evidence are well-known, but are repeated below for the benefit of the unrepresented wife. In order to have her new evidence admitted, she 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.

17.  Upon due consideration, I am not prepared to say that the wife’s allegation of the fear of the daughter to travel to Japan is a new ground. The wife has mentioned this allegation in her affidavit filed on 2 June 2026 at paras 29 to 31.

18.  However, the wife concedes that her allegations of flight risk and the husband’s lack of caring ability are new grounds that she did not mention in her previously-filed opposition affidavits. She explains in the hearing that it is because she did not want to pass bad comments about the husband in order not to build up any conflicts between them.

19.  I do not believe her explanation. If she has a bona-fide concern of the husband’s caring ability, I see no reason why she could not have raised this point in her affidavit in opposition. Notably, the photos relied by her to substantiate the husband’s lack of caring ability were available as early as May 2023 (which were disclosed in the correspondences dated 10 May 2023).

20.  Besides, it is obvious to me that she conveniently picks up the “flight risk” allegation in this appeal, because the deputy master allowed the husband’s removal application by ruling that there was not any “flight risk” allegation.

21.  I conclude that the thresholds of Ladd v Marshall have not been met in respect of the new allegations/grounds of “flight risk” and “lack of caring ability”.

Grounds of objection/appeal

22.  This is an appeal of Master’s decision. It is trite law that an appeal of an order made by a master before a judge is dealt with by way of a re-hearing as if the matter came before the judge for the first time. And the judge is not bound by the decision of the master in any respects (See: Hong Kong Civil Procedure (2026)  at para 58/1/2).

23.  In so far as this application is concerned, the ultimate question to answer is this: whether the holiday removal to Japan is in the best interest of the daughter.

24.  To object to the husband’s summons and to support her appeal, the wife has filed a number of affidavits, namely on 2 June 2026, 12 June 2026 and the latest one on 6 July 2026.  

25.  I shall deal with the wife’s major grounds of objection and/or her major grounds of appeal which appear in the following. In so doing, I reiterate that I have expressed my view on the belated affidavit filed on 6 July 2026.  But for completeness of discussion on merits, I shall still briefly analyse the new grounds.

Political hostilities towards Chinese & travel warnings

26.  It is the wife’s case that there have been a number of harassment or attack incidents, or terror threats in Japan targeting on the Chinese and/or Chinese Embassy in Japan, especially since 2026. As a result, the Chinese government and the government of the HKSAR have issued safety warning about travelling to Japan. The particulars are set out in her various affidavits, and I shall not repeat the details in this judgment.

27.  I have considered the documents provided by the wife. As a backdrop, it is common knowledge that the political relationship between China and Japan is not good recently, after the comments given by the prime minister of Japan on the Taiwan problem. In the eyes of the Chinese government, the remarks are “blatantly provocative” and “damaging the atmosphere for people-to-people exchanges” (quoted from the documents disclosed by the wife in her affidavit filed on 2 June 2026). It is also common knowledge that after such comments of the Japanese prime minister, the flights and interactions between China and Japan begin to reduce drastically. Hence, any warnings issued by the Chinese government on travels to Japan, in my view, are more related to the political dispute between the two countries, rather than the actual reflection of the safety severity of the Chinese nationals in Japan.

28.  Further, even according to the information posted by the Security Bureau of the HKSAR as at 26 June 2026 (which is relied by the wife), Japan is not within the countries on which an outbound travel alert is issued by the Security Bureau. Simply put, there is not any travel warning issued by the Security Bureau in respect of Japan.

29.  The Security Bureau merely alerts the citizens of Hong Kong who intend to visit Japan to “exercise caution”, “attend personal safety” and “pay attention to local announcements on the latest situation and notices on consular services from the Chinese Embassy/Consulate-General in Japan”. In my view, these are general reminders rather than warnings against travelling to Japan. It is noted from the website of the Security Bureau that similar alerts are also issued against Australia and the USA.

30.  It will be impossible for us to find and travel to a country or city which is completely free of crimes, since no country or city in our world can be crime-free. The incidents quoted and relied on by the wife, such as street bumping; a traveller from Hong Kong was hit in a Hokkaido restaurant are one-off incidents, least to say that there is no evidence as to why such incidents took place, and/or whether any of such incidents were caused or partly caused by the person being attacked. I refuse to place weight on such incidents.

Earthquake risks

31.  The wife is adamant in suggesting that Japan faces a real and constant risk of earthquakes. She sets out a list of earthquakes that took place in Japan with a magnitude of 6.2 to 8.7 from July 2025 to April 2026. She points out that according to the newspapers report in the Japan Times, the Japanese government predicts that there is a 70% chance that a major earthquake of magnitude 7.3 would strike Tokyo causing 18,000 deaths and destruction of 400,000 buildings.

32.  It cannot be of dispute that Japan sits on one of the so-called “earthquake-belts” and has been experiencing earthquakes from time to time. But it is equally true that not every earthquake would, or has caused, casualties and destructions. The ultimate question is : whether there is sufficient evidence from the wife to show that there is an imminent danger that destructive earthquakes would take place in Tokyo during the husband’s travel periods for 7 days?

33.  I am unable to conclude from the documents provided by the wife that there is such an imminent danger. Notably, the wife conveniently leaves out that the Japan Times also reports that the said 70% chance of a big earthquake in Tokyo is to happen “within next 30 years”.

34.  Upon due consideration, I agree with the deputy master that the chances of having earthquakes in Japan are within an acceptable risk for a short trip of 7 days.

35.  Further, in my judgment, it is telling that the wife herself previously sought leave from the court, which was granted on 28 March 2024, to take the daughter to visit Japan from either 20 to 26 July 2024 or any periods for 6 days in July or August 2024. Although she did not take the daughter to Japan in the end, she took the daughter to Taiwan (another area which experiences earthquakes from time to time). It is not satisfactory and thus not acceptable by the court that the wife applies a double standard when the husband asks to take the daughter to Japan for vacation.

36.  I shall deal with the daughter’s alleged fear to earthquakes and/or measles in Japan when I discuss the wishes of the daughter.

Health threats: measles outbreak

37.  The wife claims that Japan is currently experiencing a measles outbreak, and thus it would pose a health risk on the daughter if the court allows her to travel to Japan. She points out that according to the latest announcement of the Department of Health on 4 June 2026 and the Japan News dated 3 June 2026, Japan records 511 cases of measles, of which 253 cases were/are in Tokyo.  In my view, this cannot be said as a high figure if compared to the total population of Japan which must be over several ten millions, if not billions, of people.

38.  On the other hand, it is conceded by the wife that the daughter had already taken some vaccinations against measles. She says that the vaccinations cannot provide full immunization and quotes as an example that the cousin of the daughter was infected with virus even after she got the immunization.  Yet, the wife fails to provide further details and supporting proof on this point.

39.  In my view, it is very telling that neither the Department of Health nor the Security Bureau has issued any travel warning against Japan as a result of the measles outbreak.

40.  In any event, I agree with the deputy master that this is an acceptable risk, if any, for a short vacation of 7 days.

41.  And I am sure that the husband, being a loving father, will pay attention to the public health condition of Tokyo while he is there with the daughter, and take all necessary measures to ensure that she will stay healthy during the trip.

Wishes, concern, emotional wellbeing and fear of the daughter

42.  It is the wife’s allegation that the daughter expresses fear of going to Japan, due to the chance of earthquakes and the outbreak of measles. The wife adds that the daughter has previously experienced a simulated level 3 earthquake when she visited the Natural History Museum in London, and is aware of her cousin’s infection of virus leading to hospitalization, all of which are the daughter’s real-life experiences that lead to her fear to travel to Japan. The wife alleges that the daughter cries knowing that the husband wants to take her to Japan.

43.  The wife also complains that the deputy master has erred in law in failing to consider the fear and wishes of the daughter when the deputy master allowed the husband’s summons.

44.  The husband, however, claims that the daughter would like to go to Japan with him, and that the daughter told him that one of her classmates went to Japan in the week of 15 June 2026.

45.  For the records, the deputy master has not called for a social investigation report on the holiday removal to Japan, and hence there is no report on the wishes of the daughter.

46.  Hence, whether it is the wife’s claim that the daughter is fearful to go to Japan, or it is the husband’s claim that the daughter wants to go to Japan, is their respective allegation only.

47.  That said, however, I hold the view that for the facts of this case and for this simple summons for holiday removal, there is no need to call for a social investigation report. A balance needs to be struck between the limited resources of the social investigating service and the nature/complexity of the application.

48.  Further, in my view, there is sufficient information revealed from previous social investigation reports on the background of the family and the character of the daughter for my consideration. The daughter is described by the social investigating officer as “strong in problem solving”, and “cheerful and smart” (See: AR Judgment at para 106). She has a close relationship with the husband. 

49.  According to the wife’s own case in the ancillary relief trial, she sought to claim a sum of $3,702 per month way forward to cover the daughter’s holidays and travels, as she explained that “overseas trip is the basic needs of the family as the parties always intended to have overseas trips during marriage” (See: the wife’s affidavit filed on 12 September 2024 at para 33).  She also said that the daughter enjoyed the overseas trips to Singapore, Taiwan and the UK that were arranged by her.

50.  The overall impression that I receive from the social investigation reports and the wife’s own case in the ancillary relief trial is thus this: the daughter is a joyful and cheerful girl who enjoys overseas travelling. As she is “strong in problem solving”, it is more likely than not that she will not be fearful to adventure into a new country and/or new culture. There is no discernible reason why she would not enjoy overseas travels with the husband, given their harmonious relationship. I refuse to accept the wife’s submission.

Lack of daily itinerary/failure to give brother’s address

51.  The wife says that the daughter is only 10 years old, and lacks the maturity and capability to protect herself or look for help in the event of emergency while she is overseas. But the husband refuses to give the wife a daily itinerary of the travel. He plans to bring the daughter to meet his elder brother and his wife in Japan, but refuses to give the address of his elder brother. Such lack of transparency and evasiveness of the husband shows that he would not be co-operative to communicate with the wife during any emergency when the daughter is in Japan.

52.  In fact, the husband already told the wife in their earlier WhatsApp messages that he would do “sightseeing around Tokyo, museums, shrines…etc.”[4]

53.  I do not think that it is reasonable for the wife to ask the husband to list out an itinerary showing daily plans and activities of the daughter if she travels with the husband for holidays in Japan. This is too onerous to ask a travelling parent to do so. It does not occur to me that the wife did so when she took the daughter for various overseas trips in the past.

54.  I do not see the need for the husband to give out his elder brother’s address, either. Whether the elder brother dislikes children or not (and even if this was true)  is rather irrelevant in my deliberation. It is not the husband’s case that they will live at the elder brother’s place during the trip. The husband will stay in a hotel in Tokyo with the daughter. He and the daughter will meet the elder brother for meal(s)  only.

55.  Usually, in a normal holiday removal application before the family court, provisions of flight itinerary, hotel details, a contactable mobile number, and probably an arrangement of a daily video call should be sufficient to keep the non-travel parent informed of the child’s situation and safety during the overseas trips. I see no reason why this case should not follow the usual arrangement.

Flight risk

56.  On the facts of this case, I do not believe that the husband will not return the daughter to Hong Kong at the end of the vacation. He has filed his written undertaking to return the daughter to Hong Kong. His immediate family, namely his aged mother who has maintained a very close and loving relationship with the husband, is living in Hong Kong.

57.  I reiterate my comment at para [20] of this judgment.

Inability to take care of the daughter

58.  In her latest affidavit filed just 3 days before this hearing, the wife raises a new point, saying that the husband has no experience of taking care of the daughter without the assistance of a maid. The husband cannot take the daughter to public female toilets. The daughter does not know how to wash her hair.

59.  Previously when staying access was in dispute, the wife had, unsuccessfully, criticised the caring ability of the husband (See: para [5] above).

60.  The daughter is now 10 years old. She is no longer a toddler. I am surprised to hear from the wife that she does not know how to wash her hair by this age. If true, it is time for the parents, especially the wife who has the care and control, to teach and train the daughter to do so immediately. Besides, the trip will last for 7 days only. The daughter is “strong in problem solving”. I see no problem of the husband’s waiting for the daughter near the public female toilets if the daughter has any urgency calls.

61.  I am unable to embrace the wife’s worries.  

Unfair proceedings

62.  The wife alleges that in the hearing of 9 June 2026 before the deputy master, the deputy master interrupted her repeatedly and thus she was not given a fair chance to address fully to the court.

63.  I was not present in the hearing before the deputy master, and thus am not in the position to tell what was or was not said by the deputy master or the wife. Notably, if the wife had such allegations, she should have provided the relevant transcript of the proceedings to substantiate her allegations.

64.  Nevertheless, since a master’s appeal is a re-hearing and the judge will deal with the matter in question as if it came before him or her for the first time, this argument of unfair proceedings is rather irrelevant.

Conclusion

65.  The wife has raised some other minor arguments or points in her affidavits or submission. I opine that there is no need for me to repeat them all here. Suffice it is for me to say that I have considered all of her  arguments. Her actual and overall sentiment is that the daughter should not be allowed to travel overseas with the husband, even to Singapore where the wife considers is a safer place, before the daughter reaches 12 or 13 years old.  I reject all her objections.

66.  Further, I am of the view that the above analysis is sufficient for me to arrive at a conclusion that it is in the best interest of the daughter to travel to Japan with the husband for a 7-days’ vacation. This will give her a chance to broaden her horizon, to get to know a different culture, and to meet up the wider family of the husband.

67.  For all the matters aforesaid, I will make the following order:

(1)  leave be granted to the husband to remove the daughter out of the jurisdiction of Hong Kong for holidays in Tokyo, Japan from either 22 to 28 July 2026 (both dates inclusive)  or 5 to 11 August 2026 (both dates inclusive);

(2)  The husband shall provide the flight itinerary, hotel details (including hotel name, address and telephone number), contactable mobile number of the husband during the trip to the wife not less than 7 calendar days before departure by email and by WhatsApp messages;

(3)  The wife shall provide to the husband the original passport and HKID card of the daughter 5 calendar days before departure;

(4)  The wife shall be allowed to have a daily video call (of not more than 10 minutes)  with the daughter during the trip at 11.30 am (Japan local time). The video calls shall be arranged and made by the husband to the wife’s mobile number;

(5)  The husband shall return the original passport and HKID card of the daughter to the wife within 3 calendar days upon the conclusion of the trip to Japan.

(6)  A penal notice shall be endorsed.

(7)  Personal service of this court order be dispensed with.

Costs

68.  I have invited the parties to make submission on costs during the hearing.

69.  The husband agrees that costs shall follow the event. And if he is the winner of the appeal, he seeks summary assessment of his claimed costs of $51,434 (set out more particularly in his statement of costs).

70.  The wife says that if she is the winner, she shall not claim costs from the husband. But if she loses the appeal, she should not bear the husband’s costs, because:

(1)  he does not care for the daughter’s interest and risk;

(2)  the legal fees are incurred by the husband himself, while the wife tries to save costs by acting in person;

(3)  the claimed costs are excessive in any event.

71.  It is clear that the wife loses in this appeal. Her reasons for objecting the husband’s application are totally without merits and unsubstantiated, despite that very cogent reasons were provided by the deputy master in her oral decision on 9 June 2026. The wife filed her 12^th affidavit without leave and attempted to raise new grounds of objection to the husband’s application. I see no reason why the wife should not bear the husband’s costs of the appeal.

72.  As to the quantum of costs, I do not allow the fees of the senior partner (Ms Rita Ku), since this is excessive and unnecessary when Mr Ken Chan of counsel is engaged to attend this hearing and prepare the written submission. On a broad brush, I shall give a summary assessment of the husband’s costs of $48,000, among which the brief of Mr Chan is allowed in full.