Cht v. Fd

FCMC No.10167/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 10167 OF 2015

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D E C I S I O N
(Jurisdiction : Substantial Connection)

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Introduction

1.The Petitioner is the Husband (“H”) and the Respondent is the Wife (“W”).

2.The parties were married in January 1998 at the Shatin Marriage Registry.  There is one child of the family, a boy, born in 2002 who is at present 14 years old living and studying in Mainland China.

3.On 7 August 2015, H through his legal representatives filed a Petition for divorce relying on the fact of 2 Years Separation.  Apart from seeking a divorce, H seeks joint custody of the child with care and control to himself. 

4.On 19 August 2015, W acting in person filed the Acknowledgement of Service (Form 4) indicated that she would contest the divorce.  However, no Answer was filed by her within the prescribed time and H then lodged his application for directions for trial as an undefended divorce suit.

5.On 10 November 2015, the Registrar refused granting directions for trial and raised the following requisitions :-

“Both the Petitioner and Respondent are not living in Hong Kong. Please provide more details by supplemental Affirmation regarding the Petitioner/Respondent being domiciled in Hong Kong.”

6.H then filed his Affirmation on 23 December 2015 in reply to the Registrar’s requisitions.  The learned Deputy Judge I. Wong on 20 January 2016 directed that the evidence produced by H was not sufficient to support domicile in Hong Kong as at the date of the Petition.

7.On 4 February 2016, H issued a Summons seeking leave to amend the Petition by removing himself and W to have domiciled in Hong Kong.  H intended to amend the Petition to the effect that as at the date of filing of the Petition, he himself has had substantial connection with Hong Kong.  H filed his 2^nd Affirmation on 11 April 2016 setting out his grounds of application for the amendment.   W also filed her Affirmation on 14 July 2016 setting out her reasons for opposing the intended amendments.   In a gist, W does not agree that H has ever had substantial connection in Hong Kong although the intended amendments presently sought by H did not actually concern her.

The statutory provisions

8.Section 3 of the Matrimonial Causes Ordinance, Cap.179 provides :-

“The court shall have jurisdiction in proceedings for divorce under this Ordinance if –

(a) Either of the parties to the marriage was domiciled in Hong Kong at the date of the petition or application;

(b)Either of the parties to the marriage was habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of the petition or application; or

(c) Either of the parties to the marriage had a substantial connection with Hong Kong at the date of the petition of application.”

The W’s position

9.W attended the hearing today.  She does not agree H has ever had any substantial connection with Hong Kong at any time and opposed to the amendments sought by H.  She maintained what she had stated in her Affirmation.

The H’s position

10.Miss Judy Wong acting for H referred this Court to the 2^nd Affirmation of H dated 7 April 2016 (“the Affirmation”) and the exhibits thereto.  There was no application for leave to adduce further evidence.  Thus, the evidence available was those filed with the Court.

11.In summary, the facts relied upon by H in the Affirmation are as follows, set out hereunder cross referenced to the paragraph numbers in the Affirmation :-

(i) Both he himself and W possess Hong Kong identity cards (paragraph 3);

(ii) Both parents of H are Hong Kong permanent residents (paragraph 4);

(iii) He came to and settled in Hong Kong in 1994. Prior to 2004, he had been living in Hong Kong (paragraph 4);

(iv) He married in Hong Kong in January 1998 (paragraph 5);

(v) Between September 1994 and August 2004, he worked in The Chinese University of Hong Kong as a full time employee (paragraph 6);

(vi) The child of the family although born in Shenzhen, China, also possesses Hong Kong permanent resident identity card (paragraph 6);

(vii) In 2004, the child was accepted by Heung To Middle School (Tin Shui Wai) and was offered a place to study  in Form 1 (paragraph 7);

(viii) H’s personal belongings still stored in Hong Kong at his parents’ place of residence (paragraph 8);

(ix) Between 1994 and 2004 whilst he was working in Hong Kong, he had paid tax in Hong Kong (paragraph 9);

(x) Around 1995, he purchased landed property in Hong Kong but later resold (paragraph 10);

(xi) Up until present, he had been investing in Hong Kong. He still possesses an integrated bank account with the Hang Seng Bank in Hong Kong where there are still stocks in the securities account (paragraph 11);

(xii) His father is aged 80.  His mother is aged 72. He is the only son and has been supporting the parents.  His sister and her family all live in Hong Kong and has been maintaining contact with him (paragraph 12);

(xiii) He came to Hong Kong frequently every year to visit his family members and handled his own affairs (paragraph 13);

(xiv) He is now working in Zhekiang (浙江), PRC as a manager.  Due to the downturn of business in recent years, it is expected that the company he works for will be closing down soon.   He planned to come to Hong Kong and buy property when the current company closes down.   He does not possess any permit to stay in Zhekiang (浙江) and any intention to apply for PRC citizenship (paragraph 14);

(xv) He could take care of his elderly mother more frequent after he return to Hong Kong (paragraph 15);

(xvi) He is eligible to vote in Hong Kong and has the intention to do so for the coming Legco Election (paragraph 16);

(xvii) His stay and presence in PRC is only a temporary arrangement.  He does not possess any other countries (including Mainland China) passports or nationality save and except Hong Kong SAR passport, Hong Kong Identity Card and Returning Permit (回鄉證) (paragraph 17).

The Case law

12.I found the following passages in the cardinal case of ZC v. CN (CACV No.255 of 2013) informative and particularly useful.  Citing the Judgment of Hon Cheung, CJHC, as follows :-

“9.4 Whether a person has a substantial connection with Hong Kong is clearly a question of fact. No definition for this term will be succinct or comprehensive enough. What one may do is to look at the surrounding factors to see whether that person is substantially connected with Hong Kong at the time of the petition. As a starting point, one begins to see if that person has connection here and then decide whether that connection is a substantial one, see S v. S [2006] 3 HKLRD 751 paragraph 15. In terms of connection, there must be physical presence in Hong Kong. But because of the requirement of ‘substantial’, the presence cannot be of a transitory nature otherwise this will encourage ‘fly in’ and ‘fly out’ divorce, a theme that the Court has consistently emphasised, see, for example, Griggs (nee Sharp) v. Griggs [1971] HKLR 299. Ta Tran Thanh v. Ta Van Hung and Another [1981] HKDCLR 37 and more recently S v. S, B v. A [2008] 1 HKLRD 43.

…..

9.8  The fact that a party has resident status which allows him or her to live here legally is only a factor to be taken into account.  He or she may not be living here on a long term basis and only comes here occasionally.  No doubt one has to look at other factors such as the party’s past pattern of life, the frequency of his visit to Hong Kong, the length and purpose of the stay, whether the party is engaged in business or work here, whether the rest of the family is here and whether a home has been established here and whether the children are at school here.  It is also important to bear in mind that since the legislation only requires the party to establish a substantial connection in Hong Kong, he or she at the same time may have a substantial connection elsewhere, see S v. S.  In my view, if a party is shown to have substantial connection elsewhere by reason of his home or work, this may be used to contrast with the connecting factors he has in Hong Kong to see whether the Hong Kong connection is a substantial one.”

13.A year later in the case of LCYP v. JEK (CACV Nos.98 & 125 of 2015), again the following guidance are particularly useful.  Citing the Judgment of Hon Cheung JA as follows :-

“A substantial connection

38. The phrase ‘a substantial connection with Hong Kong’ in section 3(c) of Cap.179 is not a term of art and should be given its ordinary meaning (B v. A [2007] 4 HKC 610 at §18; ZC v. CN at §9.1). Although a wider meaning is to be given to this phrase than the requirement of domicile in section 3(a) or three years ordinary residence in section 3(b) of Cap.179, this is not intended to be interpreted so loosely as to encourage residence of passage or divorce of convenience, as it was not the legislative intent to create a ‘fly in and fly out’ divorce jurisdiction (Savournin v. Lau Yat Fung [1971] HKLR 180 at 184; S v. S [2006] 3 HKLRD 751 at §17; B v. A at §26; ZC v. CN at §9.9).

39. Unlike domicile which a person cannot have more than one at the same time and for the same purpose, one can have a substantial connection with more than one jurisdiction at a time. Hence, it is not necessary for the Wife to demonstrate her connection with Hong Kong is the only substantial connection or the most substantial connection she has with any jurisdiction. It is sufficient is she demonstrates among others that she has ‘a’ substantial connection with Hong Kong (S v. S at §13).

40. It is unnecessary to repeat the guidance given by the Court of Appeal in ZC v. CN. As in the case of the guidance given regarding factors relevant to domicile. I emphasise again that whether a party to a marriage would have a substantial connection with Hong Kong is a question of fact, so the factors to be taken into consideration and the weight to be given to each relevant factor would vary according to the particular circumstances of each case (S v. S at §18).

The Court’s Views

14.Guided by the above authorities, I now proceed to consider H’s application.

15.The mere fact of possession of Hong Kong identity cards does not necessarily establish substantial connection.  It could not, in my decision, be considered in isolation without reference to other important factors.  Identity card holders are permitted to stay in Hong Kong without restrictions as to the period of stay and engagement in employment.  It goes no more than that.  To rely upon mere possession of Hong Kong identity cards as evidence to show substantial connection, there ought to be other corroborative and supporting evidence.

16.The most commonly seen evidence would be the movement records where the frequencies of travel and duration of stay could be clearly seen.  There is no such evidence save and except H’s bare assertion that he came to Hong Kong frequently every year.   The question remain to be seen is how frequent did he travel to Hong Kong ?  How long did he stay on each occasion ?  Why he had to be here, say, the purpose of those alleged frequent travel ?  What ‘affairs’ he had to handle in Hong Kong ?  Whilst all such information are missing, H’s lawyer Miss Wong was unable to tell the Court why those information are not forthcoming.   

17.The parents of H are also Hong Kong permanent residents living here whom he is supporting;  his sister and her family members all residing in Hong Kong and he is in contact with them are, in the absence of further details, only capable of showing he has some connection with Hong Kong.  It lacks the requisite degree of substantiality which the law requires.

18.The child also possesses Hong Kong identity card and was once offered a place to study in Hong Kong does not support his case of substantial connection.   As a matter of fact, the child had never studied and lived in Hong Kong.

19.The 10-year full time employment with the Chinese University of Hong Kong might be a material factor to show substantial connection.   However, it is noted that it was H who decided to resign and leave Hong Kong to seek employment in Mainland China in 2004.   Having secured employment in Mainland China since 2004, he then chose to stay there for another 12 years up to the present is, in my view, clear evidence against his case of substantial connection with Hong Kong.  Although I am aware that H could have substantial connection both (my emphasis) with Hong Kong and Mainland China at the same time (see ZC v. CN), I am minded to say that his substantial connection with Mainland China by reason of his home and work there for 12 years when contrasting  with the connecting factors he mentioned to have with Hong Kong, not even sufficient to say that he had substantial connection with these 2 jurisdictions.  Moreover, insofar as the factor of work and employment is concerned, how could H be said to be substantially connected with Hong Kong when it was his own choice and decision to resign and leave Hong Kong 12 years ago ?  Payment of tax during the 10 years of employment in Hong Kong between 1994 and 2004 is neither here nor there since this is a legal requirement imposed by the law.

20.The fact of having his marriage registered in Hong Kong does not support his case of substantial connection.

21.The purchase of landed properties and possession of investments in Hong Kong do not assist his case either.  Given the convenience nowadays for investment in securities and globalization, even millions of dollars of stocks and shares could be purchased or disposed of at the ease of finger tips within minutes.  As said in the case of ZC v. CN (supra) at paragraph 11.1 :-

“11.1……….It is not uncommon for someone in this modern age of globalization to hold foreign properties, bank accounts and companies, particularly in light of the close proximity between Hong Kong and the Mainland and the large volume of commuters crossing the Mainland borders to Hong Kong……..”

22.As to the factor of personal belongings still stored in the address of his parents in Hong Kong, there is no evidence as to what actually was stored there.  Even if there is such evidence, the mere fact of having belongings stored in Hong Kong could, in my view, hardly support a case of substantial connection.  Would a person having, say for instance,  his clothing or books stored in Hong Kong but physically working and living overseas for a continuous period of 12 years could be said to have maintained substantial connection with Hong Kong ?  I believe the answer must be in the negative.

23.As to H’s belief that he is likely to lose his current employment due to his PRC employer’s closure of business and that he is looking forward to come to Hong Kong thereafter, there is simply no evidence to support such postulation.   I find this is nothing more than his bare assertion. 

24.The eligibility to vote much depends on the possession of the Hong Kong identity card by the voter.  However, as said earlier, such possession does not support a case of substantial connection.

25.There is no evidence before the Court as to his present employment status which might shed some light on his submission of non availability of other countries (including Mainland China) nationality. Evidence such as his present employment contract in Mainland China or any other official records from the relevant authorities in Mainland China telling us whether he was an ‘expatriate’, so to speak, may be useful.  Unfortunately, no such evidence was produced or any reasons for not producing such evidence are set out in his Affirmation.  

Conclusion

26.Given careful consideration to the above and H’s Affirmation, I concluded that H is unable to establish any substantial connection with Hong Kong at the time of his petition.

27.Accordingly, I find the Husband fails in satisfying the statutory requirements under Section 3(c) of the Matrimonial Causes Ordinance, Cap.179 for seeking leave to amend the Petition.  Since his

original intended reliance on ‘domicile’ was rejected and then apparently withdrawn by the present intended amendment, which likewise was rejected, thus remaining the ‘3-year habitual residence’ factor of which he would not be able to satisfy at this stage, I find H has no basis to file his divorce Petition in Hong Kong or have it maintained against W.  H’s Petition dated 7 August 2015 must therefore be dismissed. 

Orders

28.I now make the following orders :-

(a)  The Petitioner’s (Husband’s) Petition dated 7 August 2015 be dismissed for want of jurisdiction;

(b)The Petitioner’s (Husband’s) Summons dated 4 February 2016 for leave to amend the Petition be dismissed;

(c)  There be no Order as to costs of this suit and the said Summons; and

(d)The marriage certificate filed by the Petitioner (Husband) be released to the Petitioner forthwith.

29.This is a Costs Order Nisi which will become absolute unless any party apply for variation within 14 days from the date of this Decision.

Miss Judy Wong of Messrs Philip K.Y. Lee & Co., Solicitors for the Petitioner

The Respondent acting in person