Qmy v. Gss

CACV 68/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 68 OF 2014

(ON APPEAL FROM FCMP NO. 147 OF 2012)

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BETWEEN

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D E C I S I ON

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Hon Cheung JA (giving Decision of the Court) :

1.This is the Applicant Mother’s application for leave to appeal against our judgment of 18 June 2015. Our Reasons for Judgment was delivered on 19 August 2015.

2.The Mother relies on both the ‘great general or public importance’ and ‘or otherwise’ grounds. 

‘Great general or public importance’

3.In respect of the former, the formulated questions are :

1(1)  Whether, on a proper construction of the Guardianship of Minors Ordinance, Cap. 13 (‘GMO’), the Court has jurisdiction thereunder where the child concerned is neither ordinarily resident or present in Hong Kong?

1(2)  If the Court has such jurisdiction, whether, on a proper construction of the GMO, the Court retains a discretion to decline to exercise jurisdiction under the GMO other than by ordering that the action be stayed applying the principles under forum non conveniens?

1(3)  If question 1(2) above is decided in the affirmative:

(a) What are the proper criteria to be considered by the Courts in deciding whether to exercise such a discretion under the GMO (when this issue had not been hitherto decided by any Court in Hong Kong and the cases referred to by the Respondent and relied upon by the Court of Appeal are United Kingdom cases which concern the exercise of inherent jurisdiction but not concern the exercise of any statutory discretion under the Guardianship of Minors Act 1971 or other equivalent enactments)?

(b) Whether the Court of Appeal erred in declining to exercise jurisdiction under the GMO in the circumstances of the present case notwithstanding that:

(i) the child in question was born in Hong Kong;

(ii) to a father who is a Hong Kong permanent resident;

(iii) and is therefore a Hong Kong permanent resident by virtue of Article 24 of the Basic Law;

(iv) the Respondent Father was properly served in Hong Kong where he is ordinarily resident; and

(v) has known assets in Hong Kong?

4.We will decline to grant leave on the ‘great general or public importance’ ground.  We are not satisfied that this ground is engaged. 

5.It is the Mother who seeks to invoke the jurisdiction of this Court.  We were prepared to accept there is jurisdiction and had further found inherent jurisdiction.  Question 1(1) is plainly academic. 

6.As to Question 1(2), whether discretion exists is simply a matter of statutory construction.  The language used in section 26 of Guardianship of Minors Ordinance (Cap. 13) and the authorities clearly support the existence of the discretion.  The whereabouts of the child is not an additional layer of hurdle that the Mother has to go through in order to seek relief as urged upon us by Mr Pang SC, but a factor relevant for the exercise of the discretion itself.  This point is not reasonably arguable.

7.As to Question 1(3), how the discretion is to be exercised is clearly fact sensitive and case specific.  In any event, this Court had considered the grounds relied upon by the Mother in support of her argument for the exercise of the discretion in her favour.

‘Or otherwise’ ground

8.The formulation of this ground is as follows.  The questions involved in this appeal are ones which otherwise ought to be submitted to the Court of Final Appeal for decision in that the effect of the judgment is that the Applicant is deprived of all avenues to pursue a claim for maintenance for the benefit of the child in question (including relief available under the GMO), given that:

1)    The judgment handed down by the Intermediate People’s Court in Guangzhou (the ‘Guangzhou Judgment’) is a declaratory judgment;

2)    The Applicant would be unable to enforce or vary the Guangzhou Judgment in the PRC as the Applicant is unable to prove that the Respondent is habitually resident in the PRC;

3)    Even if the Guangzhou Judgment could be enforced in the PRC, it is likely to be an empty judgment as there are no known assets of the Respondent in the PRC; and

4)    The Guangzhou Judgment is not final and conclusive and thus is incapable of being enforced in Hong Kong under common law principles as a foreign judgment.

9.We are also not satisfied that the ‘or otherwise’ ground is engaged.  The Mother has not demonstrated any exceptional circumstances that she has no further recourse to seek or recover maintenance for the child.  Even if, for the purpose of argument the Mainland maintenance order is subject to variation because it is not final and conclusive in the sense under private international law, that will not make it an exceptional circumstance.  In any event, the consistent practice of this Court is usually to leave this ground to be decided by the Court of Final Appeal itself. 

10.Accordingly, the application is refused with costs to the Father with certificate for two counsel. 

Mr Robert Pang S.C. and Mr Eugene Yim, instructed by Christine M. Koo & Ip, for the applicant

Mr Kenny C. P. Lin and Mr Lincoln Cheung, instructed by Lo, Wong & Tsui, for the respondent