Case Detail

HCMP 1948/2019

[2023] HKCFI 2827

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1948 OF 2019

_______________________

IN THE MATTER of AAR, a girl, born [in] October 2007 (the “Minor”) and IN THE MATTER OF SECTION 26 OF GUARDIANSHIP OF MINORS ORDINANCE (CAP 13) and IN THE MATTER OF ORDER 90 OF THE RULES OF THE HIGH COURT and IN THE MATTER OF SECTION 3 OF THE GUARDIANSHIP OF MINORS ORDINANCE (CAP 13) and IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ORDINANCE (CAP 512)

_______________________

BETWEEN
	T	Plaintiff
	and
	A	Defendant

______________________

Before:

Hon B Chu J in Chambers (Not Open to Public)(By Paper Disposal)

Date of Defendant’s submissions:	31 August 2023
Date of Plaintiff’s reply submissions:	7 September 2023
Date of Decision:	3 November 2023

________________

DECISION
(On Costs)

_________________

Introduction

1. These wardship proceedings were issued by the plaintiff father (“P”) concerning his daughter AAR who was unilaterally taken to Russia by her mother, the defendant herein (“D”). The events leading to the issue of these proceedings have been set out in this Court’s earlier judgement handed down on 29 August 2022, on a preliminary issue which arose out of P’s application for leave to issue a writ of sequestration (“Preliminary Issue Judgment”)[1]. In this decision, I shall adopt the nomenclature and abbreviations in the Preliminary Issue Judgment, unless otherwise indicated.

2. Briefly, AAR was taken by D to Crimea for her annual summer holiday in July 2018 and thereafter, D had refused to return her to Hong Kong. P had filed return proceedings under the Convention on 3 July 2018, which was eventually heard by the Russian Court which made an order on 25 April 2019 for AAR to be returned to Hong Kong. In August 2019, an order for enforcement was issued by the Russian Court and the bailiff went to retrieve AAR. This failed as D issued court proceedings against the bailiff.

3. The present wardship proceedings were issued by P on 28 October 2019, and the Return Order was made by this Court on 28 October 2019.

4. On 14 November 2019, D’s proceedings against the bailiff were dismissed by the Russian Court. Thereafter, D moved with AAR from Crimea to Sochi.

5. All attempts at mediation in May and June 2021 failed and later, P received notice that D intended to sell the Property in Hong Kong, which was registered in her name and bought by P under their separation/divorce settlement for D and AAR to reside in.

6. Upon receiving notice, P issued the Leave Summons, for leave to issue writ of sequestration. The Preliminary Issue which arose at the hearing of the Leave Summons, which was attended by D by VCF, was whether the Return Order imposes a mandatory obligation on her to return AAR. This led to the Preliminary Issue Judgment in relation to the interpretation of the Return Order. Upon this Court deciding that it does in the judgment, a substantive hearing was fixed for the Court to deal with the remaining issues as to whether D had complied with the Return Order and whether any failure to comply was accompanied by a state of mind necessary to establish punishable contempt[2].

The Substantive Hearing of The Leave Summons

7. The substantive hearing for the Leave Summons was fixed on 9 May 2023, and D attended the hearing through VCF.

8. At the hearing, upon this Court explaining to D about the nature of the Leave Summons and the writ of sequestration, D sought an adjournment as she believed that she could bring AAR back to Hong Kong but she would need time to apply for renewal of AAR’s UK passport which had expired on 20 January 2023, and also AAR would only finish her school examinations by end of June 2023.

9. This Court acceded to D’s request for adjournment and directed the Leave Summons be adjourned to 14 July 2023 to give D time to arrange for the return of AAR, and also to direct the Official Solicitor to represent AAR on her arrival in Hong Kong.

10. P indicated that he was willing to pay the cost of AAR’s return and to consent to her being issued with a UK emergency travel document. Subsequent thereto, P agreed to pay the cost of D’s visits to Moscow as well as her temporary accommodation in Hong Kong until mid August 2023. All in all, on 7 June 2023, P had transferred HKD 62,503 to the bank account specified by D.

11. Eventually, D and AAR returned to Hong Kong on 11 July 2023.

12. With AAR having returned, the Leave Summons became academic, and at the resumed hearing which eventually took place on 2 August 2023[3] (“Hearing”), P accepted that it was no longer necessary to go ahead with the contempt trial, and that the only matter remained to be dealt with in respect of the Leave Summons was the issue of costs. This Court then dismissed the Leave Summons and directed that, amongst other things, the matter of costs of the Leave Summons be dealt with on paper.

13. There have been a total of 3 Updating Notes lodged on behalf of P for the Leave Summons, the 1^st one dated 5 July 2023 and the 2^nd one dated 13 July 2023 by P’s Counsel Mr Shaphan Wahwah and the 3^rd one dated 28 July 2023 by P’s then Counsel Mr Azan Marwah[4]. The submissions on costs were made in both the 2^nd and the 3^rd Updating Notes.

14. D’s Submissions were lodged on 31 August 2023 in which she has set out her grounds for opposing to pay costs of the Leave Summons.

15. P’s Reply Submissions were lodged on 7 September 2023.

P’s Grounds for Seeking Costs Against D

16. P’s grounds for seeking costs against D were essentially D failed to comply with the Return Order and was in contempt of an order of this Court, and that he had incurred substantial legal costs in securing the return of AAR.

D’s Grounds for Opposing

17. In D’s Submissions, her grounds for opposing to pay costs can be summarized as follows:

(1)  The legal costs were incurred and wasted by P’s own conduct;
(2)  She was never planning to abduct or retain AAR in Russia and not return to Hong Kong and that their stay in Russia was only temporary until P had complied with the Consent Order;
(3)  AAR’s objection to return to Hong Kong

Brief Family Background

18. P is British. He was born in the United Kingdom and is now about 54 years old. He moved to Hong Kong in 1993 and had worked mainly in the field of digital consulting and marketing in Hong Kong. D is Russian. She was born in Komsomolsk-on-Amur in Russia and later relocated to Sudak, Crimea. She came to Hong Kong in 2004 to work as a performer. The parties met in 2004 and later married on 2 July 2005. They first lived on Hong Kong Island but later moved to Clearwater Bay. AAR was born in October 2007, and is 16 years old.

19. As disclosed by P in his 1^st affidavit filed herein, in 2008, AAR was diagnosed with acute myeloid leukemia and she spent the first year of her life in and out of hospital. She later made a full recovery. Then in 2009, P was diagnosed with neurosarcoidosis. P had to spend time between Hong Kong and UK for treatment between 2009 to 2011 during which he was unable to work.

20. The parties’ marital relationship started to decline from about 2011 onwards, and eventually P moved out of the parties’ then matrimonial home in Clearwater Bay in 2016. Later in February 2017, his employer decided not to renew his employment contract and he became unemployed.

21. Understandably, those were difficult times for the parties. After a year’s separation, P issued the divorce petition on 18 May 2017 and with D’s consent, the Consent Order was made on 12 October 2017 and the Decree Absolute was granted on 14 December 2017.

22. Their divorce was amicable and under the Consent Order they had agreed to joint custody of AAR with D having her care and control and reasonable access including staying access. Save for an incident in November 2017, generally the access arrangements seemed to be working out fine, and during the academic year 2017 to 2018, which was prior to D and AAR going to Crimea, AAR was in fact staying with P during the school term, as P was living closer to the school AAR was attending.

23. The Consent Order contains a usual restriction that AAR is not to be removed from Hong Kong unless with written consent of the other parent, by either parent having given a general undertaking to return AAR to Hong Kong when called upon to do so (“General Undertaking”).

24. According to P, D and AAR had previously gone to Crimea for their summer holiday from July to August 2017, which had been a regular occurrence for many years and which he had paid in full. Thus, on 1 July 2018, with P’s consent D and AAR left for Crimea for their summer holiday and were due to return on 14 August 2018 but this time, they failed to return.

25. Pursuant to the Consent Order, the sale proceeds of the matrimonial home of about HKD 8m were used to buy the Property, which is in Discovery Bay. The Property is registered in D’s sole name and free of mortgage and was purchased for D and AAR to reside in. According to P, it was D who had expressed a strong desire on a property to be purchased in Discovery Bay as she would like to be close to her own friends despite the long commute for AAR to and from her then school in Clear Water Bay. That was why for 2017-2018, AAR was staying with him during school term. According to P, AAR was later awarded a place at a well regarded school in Kowloon in late 2017 and that P, D and AAR were all very excited and happy with this outcome, and that at no time D had ever raised any objection or concern that it would not be AAR’s best interest to attend the school in Kowloon in the new academic year in 2018.

26. Under the Consent Order, P was to pay a lump sum of USD 125,000 to D in full and final settlement of her financial claims, plus maintenance for AAR at HKD 12,000 per month whilst she was residing with D, in addition to school and bus fees. Further, even though the Consent Order did not record this, P said he had previously bought an apartment in Crimea for D as a gift in 2014, which both of them had agreed to be D’s.

27. According to P, he paid D part of the lump sum of USD 50,000 in July 2017 upon the sale of the matrimonial home which was prior to the Decree Absolute, and a further USD 50,000 in January 2018 after the Decree Absolute. As he was still unemployed in January 2018, he requested D that the balance of USD 25,000 be paid once he found employment. As AAR was staying with P, he did not pay any child maintenance to D, which according to P, this arrangement was agreed by D in August 2017. However, as set out later, D had relied on P’s non compliance with the financial terms in the Consent Order to justify her and AAR remaining in Russia.

Discussion

28. D’s taking AAR to Crimea on 1 July 2018 for their annual summer holiday was with P’s consent and subject to the General Undertaking. As said, they were due to return to Hong Kong on 14 August 2018, the day before AAR was to commence attending her new school in Kowloon, but on 2 July 2018 only one day after her arrival in Crimea, D informed P that she had no intention of returning with AAR to Hong Kong. Subsequent thereto, she did not return AAR to Hong Kong on 14 August 2018. In my view, she was clearly in breach of the General Undertaking to the Court.

29. As mentioned, the Russian Court made an order on 25 April 2019 for AAR to be returned to Hong Kong under the Convention. This would mean that the Russian Court was satisfied under the provisions of the Convention that AAR had been wrongfully removed and/or retained in Russia. D had failed in her subsequent appeal against that decision.

30. As also mentioned earlier, the Russian bailiff had attempted to retrieve AAR from D’s apartment in Crimea in August 2019 but was unsuccessful. P in fact went to Crimea at the time with the hope of bringing AAR back to Hong Kong. He had attended D’s apartment along with his Russian lawyer to observe the bailiff’s unsuccessful attempt to retrieve AAR. D was clearly in defiant of the return order made by the Russian Court.

31. After P issued the present wardship proceedings in Hong Kong and obtained the Return Order, he had instructed his Russian lawyer to serve the proceedings and the Return Order out of jurisdiction on D. On 24 September 2020, P’s Russian lawyer received notice from the bailiff that D moved from Crimea to Sochi with AAR.

32. On the evidence, D had ignored both orders made by the Russian Court and this Court.

33. Even though D had confirmed receipt of the Return Order by Whatsapp on 25 November 2019[5], she never appealed or applied to vary it, and ignored the Return Order until after P issued the Leave Summons. She had claimed that she could not afford legal fees and was “emotionally drained”. However, as pointed out by Mr Marwah in P’s Reply Submission, she did engage lawyers in her own appeal in the Russian proceedings in June 2019, and had obtained a temporary order against the bailiff and even issued proceedings against the bailiff. Any emotional drain was in my view brought by D upon herself.

34. Not being able to afford the legal fees was no excuse for D to ignore the Return Order and the present proceedings until after the issue of the Leave Summons. Further, as seen in the Preliminary Issue Judgment, D was able to and did make submissions on the Preliminary Issue herself through VCF.

35. Having considered all the evidence including all the letters written by D directly to the Court, I find that D has shown herself to be fully capable of litigating on her own, and it was only after the issue of the Leave Summons that D decided to participate in these proceedings.

36. It was alleged by D that P had created the entire situation himself in the first place and that he had other simpler ways to resolve this situation. D alleged that when she and AAR left Hong Kong on 1 July 2018 on their annual holiday, she had no plans to move there, and that she had paid for the return tickets herself as P had refused to do so. D denies that she had ever planned to abduct or retain AAR in Russia permanently. D had produced a letter dated 2 July 2022 from her friend DP to show that she had no plans to leave Hong Kong permanently on 1 July 2018[6].

37. The letter was signed by DP 4 years after D had removed AAR from Hong Kong and had refused to return with AAR. What was stated in the letter was that, amongst other things, when D and AAR left for their summer holiday on 1 July 2018 and did not return, all their mutual friends and children were shocked, but D had explained to DP that she did not have a choice because P would not follow the Consent Order to pay her alimony for her to be able to afford to continue to live in Discovery Bay and that P would not agree to AAR attending a school nearby.

38. On the day upon their arrival in Crimea on 2 July 2018, D had immediately sent the following email to P, which indicated she did not intend to return with AAR:

“I’m informing you that [AAR] and I will remain in Russia and not be coming back to HK. You have created impossible situation for us to live there. You do not pay child support or any other expenses regarding [AAR]. You put her to [school] against my will … I hope you understand it was not easy decision to make and nothing can change it. There is no way back…”

39. In D’s Submissions, she had produced an email she said she sent to P on 2 August 2018:

“[T] , we are coming back to hk on 14^th. Can you pls transfer the rest of the divorce settlement money you owe me. Also pls can you pay back the money for [AAR’s] tickets to Crimea and child support for August”.

40. However, P had produced an email on 13 August 2018 from D saying:

“[T], after long consideration and taking every circumstance into account [AAR] and I are decided to stay in Russia for now. She … actually took it very well and got really [excited] that she will have better opportunity to learn more about Russian culture and speak more fluent Russian language. Just until things will get better and we both can agree on making decisions about [AAR]. And you can follow our divorce agreement …”

41. This was followed by another email on the same day:

“[T], I’m telling you one more time. I have not kidnapped [AAR] and holding her against her will here. She is well aware of what is going on. We just staying back temporarily, until you find a job and can pay child support…”

42. Notwithstanding what D indicated in her emails, the fact was she did not return with AAR on 14 August 2018 as agreed with P. On 23 August 2018, P had sent D an email setting out his then position and informing her that he had contacted the Hong Kong Central Authority and the Russian Central Authority to start the application for AAR’s return under the Convention and he gave D a further deadline of 30 August 2018 for her to return with AAR, and stated therein that if D were to return with AAR, he would start paying the full amount of child support every month upon D’s return to Hong Kong, and would apply for a loan to pay D the final balance of the lump sum of USD 25,000 if he were not to have found work within the next two months, and he would also try to get AAR a place in Discovery College depending on the availability.

43. Despite P’s above efforts, D simply replied that unfortunately she and AAR could not return to Hong Kong as P still did not have a job and stable income.

44. As submitted by Mr Shaphan Marwah in P’s Reply Submissions, “child abduction is an entirely unacceptable means of resolving family disputes”.

45. Even if P was not complying with the Consent Order in full and had not paid D the balance of the lump sum, he had paid her a substantial part of it and he also had bought the Property in her name. There was no sufficient evidence that he was not paying AAR’s school fees. He did not pay AAR’s maintenance as she was staying with him mostly during her school term for the academic year 2017-2018. P had also explained that this was because he was out of a job. D was clearly aware of all this, and in any event, it would have been open for her to issue enforcement proceedings of the Consent Order in Hong Kong. Similarly, if D did not wish AAR to go to the school in Kowloon, it was open to her to apply to the Family Court in Hong Kong and sought direction from the Family Court. There was nothing to stop her from seeking legal advice. After all, by 2018, she had been living in Hong Kong for some 14 years and she had friends here. There was no sufficient evidence that D had no financial means to support herself and AAR in Hong Kong, at least until P found employment, since she had the Property and an apartment in Crimea, and there was also no sufficient evidence that D had no earning capacity at all.

46. Notwithstanding D maintaining that she was never planning to abduct or retain AAR in Russia and not to return, her email of 2 July 2018, which was sent immediately on her very first day of her arrival in Crimea was in fact telling and indicated the contrary. What she now claimed to be her only intention at that time was to make P pay child support and to transfer AAR to a school in Discovery Bay could not have been right, as seen in the last sentence of her said email. She had clearly referred to it being not easy a decision and that nothing could change it, and there was no way back. I am of the view that D must have planned it all when she and AAR left Hong Kong. What was clear was that even when P sent her his email of 23 August 2018 entreating her to bring back AAR, and making proposals to meet her demands, she failed to return AAR to Hong Kong.

47. In the circumstances, P had no alternative but to pursue his application for AAR to return, and I do not accept D’s submission that the legal costs were wasted by P’s own conduct. On the contrary, the costs were incurred by reason of D’s unilateral decision to keep AAR out of Hong Kong for some 5 years, and it was only after P issued the Leave Summons, and no doubt for fear of losing the Property, D then decided to return with AAR.

48. D claimed that that the only motive she had for the past 16 years was to protect AAR’s best interests. From all accounts, AAR was close to her mother. However, AAR had also been under the care of her father for almost a year during her last term time in Hong Kong. There was no evidence that prior to her being taken to and retained in Crimea, AAR had been informed that she would not return to Hong Kong for a long period of time. As the emails showed, AAR missed her “school stuff”, such as “her rucksack, water bottle, pencil cases, lunch box and school shoes” which she wanted when she was told by D that she was to start school in Crimea and that D had asked P to send them to her. AAR was 10 years old then.

49. There was no evidence that AAR’s wishes had been ascertained prior to her being taken away. There was no evidence that AAR had been given a chance to say good bye to her friends/classmates. Even though she and maybe her friends/classmates would be going to different schools after 2017-2018, it did not mean that they would not be able to continue to meet up in Hong Kong. AAR’s then good friend was in Hong Kong. Seeing her father every week and being able to spend time together, physically with her father is different from seeing her father on screen/facetime and/or only during long school holidays. AAR was unilaterally uplifted from the family and social environment in which her life had developed for some 10 years, and in my view, this could not have been in her best interests. What is sad is that, as the social investigation report and the Official Solicitor’s report have now shown, the protracted litigation had had an adverse impact on AAR’s relationship with her father, which has been impaired. D’s unilateral actions could not have been said to be “protecting” AAR’s interests and/or in AAR’s best interests.

50. It was also D’s case that AAR had refused to return, or that there was a “travel ban” in Russia preventing AAR to return.

51. After receiving the Leave Summons, D had sent to this Court a letter around 28 December 2021[7] purported to be written by AAR with AAR promising the Court that she would return to Hong Kong and requesting this Court not to take away the Property from her mother as then they would have no money for food and for her education because her father did not help them at all, and that her father had already told her that he would not pay for her university fees if she chose to live with her mother, and AAR said she was only afraid that if she were to return to Hong Kong, her father would not return her to her mother. D had also produced copies of messages between AAR and P in which P indicated that he would not pay for AAR’s university.

52. Then there was a 2^nd long letter purportedly written by AAR with a typed version produced by D[8] stating that although in her 1^st letter she promised the Court to return, she decided that she did not wish to return to Hong Kong and she then set out her explanations, including that her relationship with her father was not good, and that she felt like he did not love or care about her and had stopped being her dad long time ago.

53. However, as seen in a psychologist report on AAR submitted to the Russian Court in the Russian Convention proceedings in 2019 which showed AAR’s closeness to both parents during the process of the “(Harry Potter’s) magic wand” game[9]. Further, AAR was heard by the Russian Court and it was recorded in the judgment of the Russian Court that AAR was willing to return if it was with her mother and that AAR indicated that she was more comfortable communicating in English and that she missed her friend who lived in Hong Kong[10]. The conclusions in the report was that the level of psychological development of AAR did not allow her to form her own opinions with respect to the country of her permanent residence.

54. There was simply no sufficient evidence that AAR had refused to return when she was first retained by D in August 2018 and/or at the time of the Russian proceedings in 2019. There was also no evidence that the “travel ban” referred to by D was intended to stop AAR from returning to Hong Kong, the place of her then habitual residence.

55. It is most unfortunate that AAR has been caught between her parent’s litigation. Even though D kept saying it was AAR who did not wish to return, D clearly managed to bring her back on 11 July 2023. There was no sufficient evidence that AAR had objected to return, and in any event, if the Russian Court had thought this was a valid ground for objection to return, the Russian Court would not have made a return order and/or the Russian Appellate Court would not have upheld the return order.

56. By now, AAR has been under D’s sole care for some 5 years without having any meaningful contact with P. It would take time to rebuild a father and daughter relationship, and I understand that there is a therapist helping them. P is hoping that AAR will be willing to engage in therapy, and D has previously indicated her agreement.

Conclusion

57. After her return with AAR, there had been further mediation between the parties. On 23 August 2023, D had sent a letter to the Court which was addressed to “Phoenix”[11]. She indicated she was willing to pay P HKD 1.7m which he claimed he had spent and that such be paid out of the sale proceeds of the Property. D obviously has sufficient means to pay the costs.

58. Having considered all the circumstances of this case, I find that D has not made out her grounds for opposing an order for costs against her. I therefore order her to pay P’s costs of the Leave Summons including all reserved costs, to be summarily assessed.

59. P has submitted a Statement of Costs for HKD 874,880. As Counsel’s Brief Fees for the attendance of the first directions hearing had included settling affirmation in support and in reply, and most of the professional work has been done by Counsel, I would allow HKD 160,000 for Counsel’s fees in Section E of the Statement of Costs. I find the amount charged for communications and professional work for the solicitors to be on the high side, and there was also no need for 3 fee earners to be involved. In my view, a reasonable amount for Sections B, C and D would be HKD 500,000. The total amount of costs and disbursements summarily assessed is HKD 660,000.

60. I understand the Property will be sold and I order such costs to be paid out of the net sale proceeds of the Property.

61. So far as the Originating Summons is concerned, directions have been given for a date to be fixed. The present proceedings have not yet been finalized, and I will not deal with the costs of the Originating Summons at this stage.

( Bebe Pui Ying Chu )
Judge of the Court of First Instance
High Court

Mr Shaphan Marwah, instructed by Oldham, Li & Nie, for the Plaintiff

The Defendant, unrepresented, acting in person

[1] [2022] 5 HKLRD 583, [2022] HKCFI 2631

[2] See para 59 of the Preliminary Issue Judgment

[3] The hearing on 14 July 2023 had to be vacated due to unforeseen circumstances on the part of the Court.

[4] As Mr Shaphan Marwah was unable to attend the refixed hearing on 2 August 2023.

[5] B:379

[6] Letter marked L9 attached to D’s Submissions

[7] B2:463, with a clear typed copy attached to D’s Submissions (M16)

[8] M4 attached to D’s Submissions

[9] B2:288

[10] B2:372

[11] Annex B, P’s 3^rd Note

HCMP 1948/2019

[2022] HKCFI 2631

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1948 OF 2019

_______________________

IN THE MATTER of AAR, a girl, born [in] October 2007 (the “Minor”) and IN THE MATTER OF SECTION 26 OF GUARDIANSHIP OF MINORS ORDINANCE (CAP 13) and IN THE MATTER OF ORDER 90 OF THE RULES OF THE HIGH COURT and IN THE MATTER OF SECTION 3 OF THE GUARDIANSHIP OF MINORS ORDINANCE (CAP 13) AND IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ORDINANCE (CAP 512)

______________________

BETWEEN
	T	Plaintiff
	and
	A	Defendant

______________________

Before: Hon B Chu J in Chambers (Not Open to Public) by Paper Disposal

Date of Hearing: 13 July 2022

Date of Plaintiff’s Supplemental Submissions: 27 July 2022

Date of Defendant’s Reply Submissions: 12 August 2022

Date of Judgment: 29 August 2022

_________________

JUDGMENT

_________________

INTRODUCTION

1. The father of the ward AAR (“P”) has issued a summons in these wardship proceedings (“Leave Summons”), for leave to issue a writ of sequestration against all the real and personal property of AAR’s mother (“D”) for her failure to comply with an order to return AAR to the jurisdiction of Hong Kong (“Return Order”).

2. The preliminary issue raised by this Court is whether the Return Order imposes a mandatory obligation on D to return AAR to Hong Kong within the stipulated deadline (“Preliminary Issue”). In considering the Preliminary Issue, the Court will also examine its jurisdiction in using sequestration as a tool to secure the return of a ward or a child, wrongfully removed.

3. The Leave Summons was originally fixed for a substantive hearing before this Court on 13 July 2022 (“Hearing”). D has been legally unrepresented throughout these proceedings in Hong Kong and she attended the Hearing through VCF[1] in Crimea. At the Hearing, in light of the Preliminary Issue, the Leave Summons was adjourned for the parties to lodge further written submissions for the Court to consider the issue on papers.

BACKGROUND

4. P was born in the United Kingdom, and D was born in Russia. D later moved with her parents to Crimea. P moved to Hong Kong in 1993 and the parties met here in 2004. They were married in Hong Kong in July 2005 and AAR was born in Hong Kong in October 2007. AAR will be 15 in about two months’ time. AAR was habitually resident in Hong Kong and attending school here until summer 2018.

5. The marriage fell into difficulties in 2016 and P moved out of the matrimonial home. The parties entered into a Deed of Separation on 17 March 2017. In May 2017, the parties entered into a consent summons in relation to ancillary relief and custody and P issued divorce proceedings in Hong Kong.

6. The former matrimonial home was sold pursuant to the Deed of Separation and as part of the agreed terms, P bought a flat in Discovery Bay for D and AAR to reside in and the flat was registered in D’s sole name (“Property”). The parties’ agreement in relation to ancillary relief and custody were embodied in a consent order dated 12 October 2017 (“Consent Order”) and thereafter, the decree absolute of divorce was granted to P on 18 December 2017.

7. Pursuant to the Consent Order, the parents are to have joint custody of AAR, with D having her care and control and P having reasonable access including staying access. The Consent Order contains a usual restriction that AAR is not to be removed from Hong Kong without leave of court, unless with written consent of the other parent, by either parent having given a general undertaking to return AAR to Hong Kong when called up to do so.

8. Under the arrangement of P and D, from August 2017 to June 2018, AAR was living with her father and under his care during weekdays and only stayed with her mother during the weekends. According to P, this was to facilitate AAR’s schooling due to the close proximity of her then school to P’s residence. On 30 June 2018, AAR moved to stay with D and on 1 July 2018, D and AAR went to Russia for their annual summer holidays. They were due to return to Hong Kong on 14 August 2018, the day before AAR was to commence attending a new school. On 2 July 2018 P was informed by D that she would not be returning to Hong Kong with AAR.

9. Immediately on 3 July 2018, P filed papers with the Hong Kong Central Authority for assistance in commencing return proceedings under the 1980 Hague Convention on International Child Abduction (“Convention”). However, an issue arose as to whether Russia or Ukraine was the proper “contracting state” under the Convention given that since 2014, the political status of Crimea has been disputed by Ukraine and Russia. Eventually on 22 August 2018, P was told by the Hong Kong Central Authority that it was not able to assist. P then sought the assistance from the British Consulate in Hong Kong and obtained advice to contact a charity called ReUnite in UK and through ReUnite, P was recommended a Russian lawyer who has since been assisting him in return proceedings under the Convention in Russia and all related proceedings thereafter.

10. On 25 April 2019, the Russian Court made an order for the return of AAR to Hong Kong. D appealed in May 2019 but on 24 June 2019, the Court of Appeal in Russia upheld the return order. In August 2019, an order for enforcement was issued by the Russian Court, and the bailiff went to retrieve AAR from D’s apartment in Crimea, and according to P, he went with his Russian lawyer to D’s apartment in Crimea to observe the bailiff’s attempt to retrieve AAR. The attempt was however unsuccessful. D then obtained a temporary order on 2 September 2019 against the Russian bailiff and in October 2021, D issued court proceedings against the bailiff.

11. In the meantime, P issued the present wardship proceedings on 28 October 2019 and on the same day P obtained the Return Order from this Court.

12. On 14 November 2019, D’s new proceedings against the bailiff were dismissed by the Russian Court.

13. P’s Russian lawyer then received notice from the bailiff on 24 September 2020 that D had moved her place of residence from Crimea to an address in Sochi, Krasnoyarsk in Russia.

14. P had attempted mediation with D in May and June 2021 but all mediation attempts failed. Then on 26 July 2021, P’s solicitors in Hong Kong received a letter from a firm of solicitors said to be acting for D and indicating that they had instructions on behalf of D to deal with the Property and demanding P to vacate his registration of the Consent Order against the Property[2].

15. P then issued the Leave Summons and obtained an order for service out of jurisdiction on D at her address in Sochi and also at her last known address in Crimea. Subsequent thereto, D provided firstly the address of the Property and then another address on Castle Peak Road in Kowloon for all documents to be mailed to her. An order was made for service of the Leave Summons at these additional addresses. As D had attended the Hearing (through VCF), she had clearly received the Leave Summons. Further, at the Hearing, it was clear that D had received the Return Order and fully aware of its contents. Thus, the Court ordered that personal service of the Return Order to be dispensed with under Order 45 rule 7(7) of the RHC[3].

THE COURT’S JURISDICTION IN GRANTING LEAVE TO ISSUE A WRIT OF SEQUESTRATION

The relevant statutory provisions

16. First of all, Order 45 rule 5 of RHC states that:

“5. Enforcement of judgment to do or abstain from doing any act (O 45, r 5)
(1) Where—
(a) a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or, as the case may be, within that time as extended or abridged under Order 3, rule 5, or
(b) a person disobeys a judgment or order requiring him to abstain from doing an act,
then, subject to the provisions of these rules, the judgment or order may be enforced by one or more of the following means, that is to say—
(i) with the leave of the Court, a writ of sequestration against the property of that person;
(ii) where that person is a body corporate, with the leave of the Court, a writ of sequestration against the property of any director or other officer of the body;
(iii) an order of committal against that person or, where that person is a body corporate, against any such officer.
(2) Where a judgment or order requires a person to do an act within a time therein specified and an order is subsequently made under rule 6 requiring the act to be done within some other time, references in paragraph (1) of this rule to a judgment or order shall be construed as references to the order made under rule 6.
(3) Where under any judgment or order requiring the delivery of any goods the person liable to execution has the alternative of paying the assessed value of the goods, the judgment or order shall not be enforceable by order of committal under paragraph (1), but the Court may, on the application of the person entitled to enforce the judgment or order, make an order requiring the first mentioned person to deliver the goods to the applicant within a time specified in the order, and that order may be so enforced.”
(emphasis added)

17. Thus, where a person “refuses or neglects” to do an act within the time specified by the judgment or order or where he “disobeys” a judgment or order requiring him to abstain from doing an act, one of the remedies for enforcement of the judgment or order under Order 45 rule 5(1)(b) is by way of a writ of sequestration. As stated in 45/5/5 of the HKCP[4], such refusal, neglect or disobedience must be of a character or quality to constitute a contempt of Court.

18. Not only positive judgments or orders may be enforced by sequestration, negative orders are also enforceable by sequestration by virtue of the express provision of Order 45 rule 5(1)(b)[5]. Further, as set out in 46/5/3 of HKCP, although Order 45 rule 5 refers to the power of the Court to grant leave to issue a writ of sequestration where a party refuses or neglects to comply with or disobeys a coercive order of the Court, the Court has inherent power to ensure that its orders are carried out in the interest of justice. Therefore, as cited, in case of a declaratory order in Webster v Southwark LBC [1983] QB 698, in a situation where a party knowingly adopts and continues a policy of refusing, neglecting or disobeying to comply with its terms, the Court has power under its inherent jurisdiction to grant leave to issue a writ of sequestration.

19. It is further set out in 46/5/1 of HKCP that Order 46 rule 5 recognises the writ of sequestration is the most drastic method of enforcing a judgment or order, and therefore the writ of sequestration shall not be issued except (1) with the leave of the Court and (2) that such leave must be obtained by motion to a judge. In an application for sequestration, the question for the Court is whether a contempt has been committed^{^[6]}.

20. In relation to civil contempt, it has been set out in 52/1/16 of the HKCP that the proper approach to committal for civil contempt by reason of breach of a court order is a three stage test, namely, it is necessary to:

(1)  construe the relevant court order to ascertain its meaning and operation,
(2)  then determine whether the defendant has in fact complied with the order as so construed, and
(3)  finally consider whether any failure to comply was accompanied by a state of mind necessary to establish punishable contempt.
(“Three Stage Test”)

21. As further stated in 52/1/17, to succeed, the applicant must prove to the criminal standard, ie beyond reasonable doubt, both the act claimed to constitute the contempt and the alleged contemnor’s requisite state of mind, and there is no difference between civil and criminal contempts in this regard.

22. To summarise, in order for the court to grant leave to issue a writ of sequestration, the applicant has to prove to the court beyond reasonable doubt that the respondent is guilty of contempt by way of the Three Stage Test.

The relevant authorities in England concerning sequestration in wardship/children proceedings

23. Mr Marwah has referred the Court to 4 cases in England in relation to a writ of sequestration being issued in wardship proceedings or proceedings concerning a child being removed from jurisdiction, for the purpose of enforcing the return of the child to jurisdiction.

24. The earliest was In re Liddell’s Settlement Trusts [1936] 1 Ch 365. Mr and Mrs Liddell had four infant children all being British subjects and all were domiciled and resident in Great Britain until Mrs Liddell took them to the United States. A mandatory injunction was granted restraining Mrs Liddell from keeping the children out of the jurisdiction. Subsequently, an order was made by Greaves-Lord J ordering Mrs Liddell to bring or cause to be brought the infant children within jurisdiction on or before a stipulated deadline. The order was served on Mrs Liddell but was not complied with. Subsequently, a writ was issued against Mrs Liddell’s messuages, goods and chattels which were to be kept under sequestration until she should, by bringing the infant children within the jurisdiction, clear her contempt. Mrs Liddell made an application to discharge the injunction order and to set aside the writ of sequestration. This was refused and Mrs Liddell appealed.

25. The issue on her appeal was essentially whether the Court had the jurisdiction to make an order requiring a person resident abroad to do an act there, and it was held that the Court had the jurisdiction to make the order, inasmuch as Mrs Liddell having been properly served, being ordinarily resident with the jurisdiction, was brought within the reach of the Court and was thus in the same position as if she were in the country and that the making of the order was for the benefit of the infants, who were wards of Court[7].

26. In Romilly v Romilly [1964] P 22, a husband committed a contempt of court in failing to comply with an order of the court that he was to return to the jurisdiction two children of the family whom he had taken abroad. The wife was granted leave to issue a writ of sequestration in respect of that contempt with the result that certain of the husband’s funds came into the hands of the sequestrators. The issue before the court was whether those funds sequestered as a result of an earlier contempt could be used to pay arrears of alimony pending suit under another order of which the husband was subsequently also in contempt. The court held that it had the jurisdiction to so order.

27. In Richardson v Richardson [1989] Fam 95, after a long history of contested litigation between the parents, Scott Baker J made an order designed to settle the future of the two wards in which a programme of access to the father was laid out, and the order was endorsed with a penal notice. The access never took place and the mother departed with the children to the Republic of Ireland and had not returned. Scott Baker J made an order restraining the mother from either dealing with or removing her assets from the jurisdiction. The mother and the wards remained in the Republic of Ireland, and the father subsequently sought and obtained leave to issue a writ of sequestration.

28. The father then further applied for leave for the sequestrators to (1) enter and take possession of the mother’s house; (2) to take possession of the personal property situated in the house; (3) to hold the house and personal property until the mother obeyed the orders of the court; (4) to sell the house and personal property in order to fund proceedings in the Republic of Ireland to secure the return of the wards and, in the alternative (5) to sell the house and property or to let the house and/or raise money by way of loan on the security of the property.

29. In his judgment, Scott Baker J had said[8]:

“The question is the extent of the court’s jurisdiction. Sequestration is an ancient and drastic remedy that the court is prepared to use to secure enforcement of its orders in serious and clear cases. The writ of sequestration binds real and personal property from the date of issue: see Halsbury’s Laws of England, 4^th ed, vol 9 (1974), p 62 , para 102.

In the present case what is sought to be achieved is the return of these children to the jurisdiction of this court in order that they may enjoy a continuing relationship with their father. The way in which sequestration might help to achieve this is by the provision of funds from the mother’s resources to enable an application to be made in the Irish courts which, if successful, would result in an order for the children’s return, ie an order enforceable in the Irish courts.”

30. Scott Baker J had cited the Liddell case and that it was his judgment that the Liddell case established that it was appropriate in principle for a writ of sequestration to issue in the case before him[9].

31. Scott Baker J also cited the Romilly case and had quoted from the judgment of Scarman J at page 23:

“…... A distinction was, however, drawn between sequestration to enforce payment of a sum of money and sequestration as punishment for some default other than in the payment of money. In the former the court would, upon application, order the sequestrators, if they had the funds, to satisfy the demand, whereas in the latter the property sequestered would only be held in medio until the contempt was purged: see Anderson, Law of Execution (1889), p 537 and Daniell’s Chancery Practice, p 790.”

32. As pointed out by Scott Baker J, the Romilly case drew attention to a problem namely the distinction between sequestrations to enforce orders for the payment of money or fines, and those to enforce other orders of the court eg injunctive relief. Scott Baker J had said that the old practice was that in the former, the sequestrators simply held the assets until the order was complied with, whereas in the latter, the sequestrators were permitted to utilize the assets to meet the due payment and that Scarman J in the Romilly case had felt able to permit the use of the funds sequestered in respect of the first contempt to be used to meet the money due in respect of the second contempt.

33. Scott Baker J then referred to another case Con-Mech (engineers) Ltd v Amalgated Union of Engineering Workers (Engineering Section) (No 3) [1974] I.C.R. 464 where Sir John Donaldson had also touched upon the same distinction:

“…… The distinction between these two processes – seizing property to coerce the contemnor into complying with the court’s order and using the assets so seized to satisfy a judgment – has never been of importance in the jurisdiction of the High Court. They are, however, distinct processes. The court can, if it considers it appropriate, seize and hold without applying the property in satisfaction of the judgment. Indeed, it must do so if the judgment is not of a nature which can be satisfied out of the assets, eg an injunctive order.”

34. Having considered the above, Scott Baker J posed the question as to whether he was bound to follow the old practice, pointing out that the observations of Scarman J and Sir John Donaldson both tended to suggest that the old practice still prevailed although he also noted that the point did not arise for decision in either case.

35. However, Scott Baker J then went on to say:

“…… If the old practice does prevail it produces both an unjust and unsatisfactory result. The sequestration will be rendered nugatory or almost nugatory. The sequestrators have possession of the mother’s house but can do nothing with it that will assist in securing the return of the children to the jurisdiction, except to retain it. The mother has no intention of returning to this country. Stalemate is reached.
Were the court to fine the mother, when she failed to pay the fine, that would be a further contempt and, on the authority of Romilly v Romilly [1964] P.22, the fine could be met either from rents from the house or possibly by raising money against it. But, on the evidence, this would go no futher towards achieving the return of the children.
The citation from Daniell’s Cancery Practice, 8^th ed (1914), vol 1, p 780 in the judgment of Scarman J suggests that the practice of applying the money received by sequestrators in satisfaction of a sum decree to be paid was itself an adaptation of the original practice that sequestration was used merely as a means of coercing the defendant by keeping him out of possession of his property.
Sequestration is an ancient tool of the law used as a last resort for enforcing orders of the court. Ancient tools need, if possible, to be adapted for use in modern conditions. In my judgment, where otherwise the whole purpose of the sequestration would be defeated, the court is not constrained by ancient practice from using the seized assets in satisfaction of the order.”
36. In the end, Scott Baker J was satisfied that there was power for him to enable the sequestrators to raise money against the security of the property. He then went on to consider the question whether it was appropriate to use sequestered funds to finance litigation in a foreign jurisdiction, as he pointed out, the litigation could not be guaranteed to secure the return of the children. He came to the conclusion it was.

37. MIR v MIR and others [1992] Fam 79, was another case in which Scott Baker J was the wardship judge. In the MIR case, the mother of a ward who had been removed from the jurisdiction by his father in contravention of an order made in wardship proceedings applied for the father to be committed to prison for contempt of court and for a writ of sequestration in respect of his property. The father was committed to a suspended prison sentence of 6 months and further a writ of sequestration was granted for the sequestrators to take possession of the former matrimonial home, and let it or use it as security for a loan in order that the mother might finance litigation in Pakistan directed to seeking the return of the ward to the jurisdiction. As the father failed to return the ward to jurisdiction, the mother applied for the sequestrators to be granted leave to sell the property.

38. As stated by Scott Baker J, in the Richardson case it was left open as to whether there was power of the court to make an order for the sequestered property to be sold. It was then pointed out by Scott Baker J it appeared that the underlying reason why the courts in earlier times would not make an order for sale of freehold property as the absence of any procedure whereby good title could be given to the purchaser, but then Scott Baker J went on to say that difficulty no longer existed today and that the remedy was to grant an order for the father to transfer his title to the sequestrators and if he failed to do so, then section 39 of the then Supreme Court Act 1981[10] could be invoked. Scott Baker J duly granted the application as sought by the mother.

39. What is clear from the above 4 cases in England is that although as said by Scott Baker J, sequestration is an ancient tool of the law used as a last resort for enforcing orders of the court, such an ancient tool has in fact now been adapted for use in modern conditions, and that it can in principle be used to secure compliance with an order to return a child, wrongfully removed, to the jurisdiction of this Court.

The procedure for the leave application

40. The procedure for an application for leave to issue a writ of sequestration is now provided by Order 46 rule 5 of RHC:

“5. Application for leave to issue writ of sequestration (O 46, r 5)
(1) Notwithstanding anything in rules 2 and 4, an application for leave to issue a writ of sequestration must be made to a judge by summons.
(2) Subject to paragraph (3), the summons, stating the grounds of the application and accompanied by a copy of the affidavit in support of the application, must be served personally on the person against whose property it is sought to issue the writ.
(3) Without prejudice to its powers under Order 65, rule 4, the Court may dispense with service under this rule if it thinks it just to do so.
(4) The judge hearing an application for leave to issue a writ of sequestration may sit in private in any case in which, if the application were for an order of committal, he would be entitled to do so by virtue of Order 52, rule 6, but, except in such a case, the application shall be heard in open court.”

41. I note that the commentaries in 46/5/1 and 46/5/2 of the HKCP have referred to the application for leave to issue a writ of sequestration is by motion. There seems to be an inconsistency as Order 46 rule 5(1) of RHC states that the application is by summons. In any event, no authorities have been drawn to my attention that the procedure adopted in the present proceedings, namely by way of an inter-partes summons, is incorrect.

42. As the present application arises out of wardship proceedings, under Order 46 rule 5(4), and Order 52 rule 6(1)(a), this Court may sit in private which the Court intends to do, but will give leave for an anonymized of this judgment be released for publication.

THE PRELIMINARY ISSUE

The relevant legal principles on construction of relevant orders

43. The 1^st stage of the Three Stage Test concerns the construction of the relevant court order to ascertain its meaning and operation.

44. Mr Marwah has summarised the relevant legal principles as follows:

(1)  An order must be construed to ascertain its meaning and operation: Kao, Lee & Yip v Koo(2009) 12 HKCFAR 830, per Brennan NPJ at paragraph 21;
(2)  At the contempt stage, orders should be construed strictly and should not be ambiguous in any material respect. However, an ambiguous order is different from an order to do a specific act which leaves it to the party to decide the manner of complying: HKCP 52/1/17, Kao, Lee & Yip at paragraph 23;
(3)  An order must be construed reasonably and in light of its purpose. As Au-Yeung J summarized in Bruno Arboit v Koo Siu Ying [2016] HKCFI 403 at paragraph 112:
“What must be ascertained is the meaning which the document would convey to a reasonable person having all the background which would reasonably have been available at the time the order was made. This includes the purpose for which the order was made: JSC BTA Bank v Mukhtar Ablyazov [2013] EWCA Civ 928, §§37, 64-65; Sino Wood, §§12-15; Kao, Lee & Yip, §§24-26.”
(emphasis supplied)

45. With the above in mind, I turn to the relevant paragraphs of the Return Order.

The relevant paragraphs of the Return Order

46. In the present case, the Return Order[11] states amongst other things that:

“1. The above-named Minor [AAR], a girl, born [in] October 2007 to continue to be a Ward of the Court until further order;
2.   …..
3.   The above-named Minor, [AAR], a girl, born [in] October 2007 do be returned either by [P] of [D], to the jurisdiction of Hong Kong within 14 days of today;
4.   [D], do surrender to [P] or the Court all other travel documents which have been issued to the above-named Minor within 24 hours of the above-named Minor returning to Hong Kong;
5.   Leave be granted to serve a copy of the sealed Order on the Director of Immigration;
6.   Leave be granted to [P] to serve [D] outside the jurisdiction of Hong Kong in accordance with Order 11 of the Rules of the High Court at Russia, Crimea, Sudak, …… or elsewhere in Russia;
7.   Penal notice to be endorsed;
8.   Until further order of the Court [D] by herself, her servants or agents be restrained from taking the above-named Minor out of the jurisdiction of the Court or causing or permitting the above-named Minor to go out of the jurisdiction of the Court; and
9.   …...”

D’s submissions

47. In D’s Reply Submissions of 12 August 2022, she has submitted, amongst other things, that[12]:

“Yes, it does impose obligation on to [D] and so as on the [P] equally, but they are by no means can be interpreted as mandatory. Because [D] was stated only just as one of the possible executors on the Return Order…”
“… As [D] was stated only just as one out of the two possible executors on the Return Order. Leaving her choice not to do it herself and therefore making it not Mandatory for her.”
“Child should be returned either by [P] or [D], giving [P] fair right to choose do it himself. And the only explanation as to why he didn’t take it, it can only be one thing and it is that he doesn’t want for the child to be returned, but only make trouble for [D]…”

Discussion

48. Mr Marwah has referred the Court to Re S (Abduction: Sequestration) [1995] 1 FLR 858. In that case, the children went to England with their Israeli parents who had intended to return to Israel at the end of their sabbatical leave, but they separated before this. The mother then unilaterally retained the children in England. The father initiated return proceedings under the Convention and the judge ordered the children be returned to Israel in the following terms, as far as it was material:

“It is ordered that the minors, Y and N, be returned to Israel forthwith.”

49. The mother then disappeared with the children. In an effort to enforce the return order, the father then applied for leave to issue a writ of sequestration to seek sequestration of the property of the mother’s intimate personal friend H in England. H was not a party in the return proceedings under the Convention, nor was H referred to in the return order, nor was he served with the return order, nor with the leave application.

50. Johnson J had pointed out that it was important on an application such as that before him that the due process of law should be followed and that was not a circumstance in which the court should be seen to be taking shortcuts, and the procedure must be followed[13]. Neither the mother or H had appeared before Johnson J but the father instructed counsel, and also the Official Solicitor had instructed counsel as amicus curiae to assist the court. Johnson J then considered in particular whether he was satisfied so that he was sure that H in the above case knew of the return order, knew that it required the immediate return of the children to Israel, and that he had deliberately conducted himself in such a way as to frustrate the order or aid and abet the mother in avoiding compliance with the return order, and the judge was so satisfied on each of those matters.

51. Johnson J had considered the terms of the order as both counsel had pointed out to him that the return order did not require the mother to perform a particular act in a particular time, but was thus, on its face, not seemed to be an order within the provision of RSC Ord 45 r 5 which referred to ‘a person required by a judgment or order to do act within a time specified in the judgment or order…’[14]. But as Johnson J pointed out, the return order was made in accordance with Article 12 of the Convention, and although it was not directed to the mother, it did not require the mother to return the children, and neither did it specify a time within which she should do so, he was satisfied that it was plain what that order required to be done with the children.

52. What can be gathered from Re S is that even though the return order was not directed at any particular person, nor is a deadline stipulated, the court would consider whether it was plain to the alleged contemnor as to what was required to be done with the children under the return order and in particular would consider the following:

(i)    whether the alleged contemnor knew that the return order required the immediate return of the children;
(ii)   whether the alleged contemnor had deliberately conducted himself/herself in such a way as to frustrate the return order; or
(iii)  whether the alleged contemnor had aided and abetted the parent in question, in avoiding compliance with the return order.

53. Mr Marwah has submitted that in the present case, D herself has clearly understood the Return Order to impose on her a mandatory obligation to return the ward AAR to this jurisdiction, as seen in her affidavit of 16 May 2022:

“First of all, please let me apologize to you again for not being able to fulfil your order and bring child back to HK.”[15]
“… I am still unable to bring child back to HK to fulfil your order”[16]

54. In any event, in D’s own Reply Submissions, D has said that the Return Order imposes an obligation on D and on P equally. D then went on to submit that the terms could by no means be interpreted as mandatory as she was only just one of the possible executors of the Return Order, and that she had every lawful right to expect for the Return Order to be executed by P and not by her.

55. In my view, the Return Order is clear in that it imposes a mandatory obligation not only on D but equally on P to return AAR to this jurisdiction. That paragraph 3 of the Return Order is directed at not only D but also P does not mean that it is not a mandatory order, nor does it mean that there is no mandatory obligation on D to return AAR to the jurisdiction.

56. The Return Order states clearly that AAR continues to be a ward of this Court. Even though the Return Order was not specified to have been made under Article 12 of the Convention, these proceedings were issued not only under Order 90 of the RHC for wardship, but also under the Child Abduction and Custody Ordinance, Cap 512, which give effect to certain provisions of the Convention, including returning a child wrongfully removed to his/her place of habitual residence. Unlike Re S, the Return Order is clear in that it has specifically stipulated a deadline for the return of AAR. Paragraph 4 of the Return Order has specifically provided that D (not P) has to surrender all AAR’s travel documents within 24 hours of AAR returning to Hong Kong, and also paragraph 8 of the Return Order specifically restrains D (not P) by herself, her servants or agents from taking AAR out of the jurisdiction of the Court, or causing or permitting AAR to go out of jurisdiction. The Return Order is endorsed with a penal notice.

57. Having considered the above, on the Preliminary Issue, I have come to the view that the Return Order does impose a mandatory obligation on D to return AAR to Hong Kong within the stipulated deadline.

CONCLUSION

58. In light of all said and having considered the authorities, in my view, sequestration is in principle an appropriate tool to be used in the present proceedings to secure the return of AAR to the jurisdiction of this Court. As said above, the Return Order does impose a mandatory obligation on D to return AAR to Hong Kong within the stipulated deadline. Thus, I find that stage one of the Three Stage Test for civil contempt has been fulfilled.

59. The remaining two stages of the Three Stage Test will be determined at the resumed substantive hearing and for the sake of D, I will set out again the remaining stages, which are:

(i) Stage Two: to determine whether D has in fact complied with the Return Order
(ii) Stage Three: to consider whether any failure to comply was accompanied by a state of mind necessary to establish punishable contempt

60. At the Hearing, I have directed that the Leave Summons be adjourned to a date to be fixed with 2 hours reserved after this Court’s determination of the Preliminary Issue. The parties should inform the Court in writing within the next 7 days as to whether any other directions are necessary prior to fixing date.

61. D should seek legal advice immediately as to any directions she may wish to seek from this Court, including whether she elects to give oral evidence and be cross examined at the substantive hearing, whether she wishes to call any witnesses to give evidence on her behalf, and also whether she wants to cross examine P. If D elects not to give oral evidence and be cross-examined, her evidence in her affidavits will not be admitted unless otherwise directed. D should also seek legal advice as to the consequences of sequestration of her assets, in the event that leave is granted for P to issue a writ of sequestration.

62. Costs on the determination of the Preliminary Issue are reserved.

	( Bebe Pui Ying Chu )
	Judge of the Court of First Instance
	High Court

Mr Shaphan Marwah, instructed by Oldham, Li & Nie, for the Plaintiff

The Defendant, unrepresented, acting in person

[1] Video Conferencing Facilities

[2] B:345

[3] The Rules of the High Court, Cap 4A, Laws of Hong Kong

[4] Hong Kong Civil Procedure, Vol 1, 2022 Ed

[5] See also 46/5/3, Hong Kong Civil Procedure Vol 1, 2022

[6] See 46/5/1

[7] See Holding in the Headnote

[8] Between G and H, at pg 98, and at A, pg 99

[9] At E-F, pg 99, Richardson v Richardson

[10] The equivalent provision in Hong Kong is section 25A of our High Court Ordinance, Cap 4

[11] A:21-24

[12] See item 1, pg 1 of D’s Reply Submissions

[13] At pg 859

[14] Similar to our Order 45 rule 5, RHC

[15] At A:77

[16] At A:81

T v. A

Related cases with same parties

Files (2)