Jq v. Clh
Read the full judgment text of FCMC 7498/2018 on BabelCite. This Family Court judgment was delivered on 9 July 2021 before His Honour Judge I Wong.
District Court – Matrimonial Causes – Leave to Appeal – Jurisdiction – Substantial Connection – District Court Ordinance (Cap 336) s.63A(2) – Test for leave to appeal – Reasonable prospect of success – Interests of justice – Exceptional circumstances – Economic and social presence – Physical presence – Greater Bay Area – Remote control of companies – Appellate guidance needed – Husband applied for leave to appeal jurisdiction judgment dated 27 May 2021 – Judge held Family Court had jurisdiction because respondent had substantial connection with Hong Kong – Husband argued he did not have significant physical presence but had sufficient economic and social presence – Judge found husband's situation was exceptional – Argument regarding exceptional circumstances not advanced in substantive hearing but has merits – Case marginal – Lack of appellate authorities on remote control and economic presence – Guidance from appellate level beneficial – Leave granted on grounds set out in Notice of Appeal – Stay of proceedings ordered pending determination of appeal – Costs order nisi that costs of application be in the cause of the appeal
Legal issues: Leave to appeal - reasonable prospect of success · Leave to appeal - interests of justice
Outcome: Leave to appeal granted; stay of proceedings ordered.
Cited by 1 case · Cites 3 cases
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FCMC 7498/2018 [2021] HKFC 133 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 7498 OF 2018 ----------------------------
---------------------------- Coram: His Honour Judge I Wong in Chambers (Not Open to Public) Date of the Respondent’s Submissions: 10 June 2021 Date of the Petitioner’s Submissions: 23 June 2021 Date of Ruling: 9 July 2021 __________________ R U L I N G __________________ 1.By a judgment dated 27 May 2021 (“the Judgment”), I held the Family Court has jurisdiction over the present divorce proceedings commenced by the petitioner wife on the ground that the respondent had a substantial connection with Hong Kong on the date of the petition. 2.Dissatisfied with the judgment, on 10 June 2021 the respondent applied for leave to appeal. 3.In this Ruling, for the ease of reference, I shall continue to refer to the petitioner as “the wife” and the respondent “the husband”. Applicable Legal Principles 4.There should not be any dispute over the applicable legal principles. 5.The relevant test governing applications for leave to appeal from the District Court is provided in 63A(2) of the District Court Ordinance (Cap 336) (“the DCO”):
6.The Court of Appeal discussed the application of s 63A(2) in Sunny Tadjudin v Bank of America, National Association, HCMP No 691 of 2012 (Unreported, 29 June 2012) at [8] – [9]:
The Husband’s Grounds of Appeal 7.As I have already set out the parties’ case and their facts in the Judgment, I do not propose to repeat them here. Suffice to say is that notwithstanding the husband did not have a significant physical presence in Hong Kong as at the date of the petition, nevertheless his economic and social presence is sufficient to constitute a substantial connection for the purpose of the divorce proceedings. I found that the husband’s situation is one of the exceptional circumstances where he had a substantial connection with Hong Kong even without the presence of his family in Hong Kong. 8.In his skeleton submissions, Mr Chan, for the husband, relies upon both limbs of the statutory tests, ie (1) the appeal has a reasonable prospect of success; and (2) there is some other reason in the interest of justice that the appeal should be heard. However, for reasons only known to those representing the husband, the Notice of Appeal that is attached to the Summons set out the grounds in respect of the 1st limb only. There is no mention of the 2nd limb. 1st Limb – Reasonable Prospect of Success 9.There are two grounds of appeal which I think can be dealt with in one-go. 10.The first is I was wrong to find that the husband (without the presence of any family members) fell within the “exceptional” category of cases where his own sole connections with Hong Kong were so substantial that jurisdiction ought to be found. 11.The second is I wrongly elevated the husband’s rare physical presence in Hong Kong “mainly for economic reasons” (at [39] of the Judgment) into something that is sufficient to establish a solo substantial connection with Hong Kong. 12.It is argued by Mr Chan that the husband was and is not exceptional. The fact patterns of the husband are commonly to be found amongst businessmen with interests across the wide “Greater Bay Area” or indeed Shanghai or Beijing. The fact that many people with multi-jurisdiction connections, in particular having general connections all across the “Greater Bay Area”, should not have been a factor in favour of Hong Kong having jurisdiction. To the contrary, including on policy grounds and floodgate considerations, the fact that increasing number of persons having wide connections across different jurisdictions in the “Greater Bay Area” should lead to tightening up and strict application and implementation of the requirement to have a substantial connection with Hong Kong. 13.This argument was not advanced in the substantive hearing. In my view, there are merits in the argument. Further, as I acknowledged in [33] of the Judgment, this case, on its facts, is a marginal one. Hence, this, together with Mr Chan’s argument set out in the foregoing paragraph, should be sufficient to give the husband a reasonable prospect of success. The 2nd Limb 14.As said above, the husband’s Notice of Appeal has not referred to the 2nd limb as a ground. Thus, strictly speaking, it is not necessary for me to deal with this limb. I would just like to say the following. 15.With the advent of ever changing communication technology and the development of the Greater Bay Area, this issue is a growing area and in the future there will be more and more people in similar situations like that of the husband. There is a lack of appellate authorities on the following matters that deserve appellate attention:
16.Thus, I agree with Mr Chan that guidance from an appellate level will benefit all – including the Family Court, legal practitioners and parties. Orders 17.For the above reasons, I grant leave for the husband to appeal on the grounds set out in the Notice of Appeal. 18.The husband also applies for a stay of the proceedings pending the determination of the appeal. As leave to appeal has been granted, this is an appropriate order that I should make as well, and I so order. Costs 19.I make an order nisi that the costs of this application be in the cause of the appeal.
Mr Enzo Chow, instructed by Yip, Tse & Tang, Solicitors, for the petitioner Mr Jeremy Chan, instructed by Withers, Solicitors, for the respondent | ||||||||||||||
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