王 v. 羅

FCMC1378/2021

[2022] HKFC 198

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 1378 OF 2021

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Coram:  District Judge K.K. PANG in Chambers (Not open to public)

Date of Hearing:  19 August 2022

Date of Judgment:  26 September 2022

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J U D G M E N T

(Anti-Suit Injunction etc.)

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Background

1.The parties were married in 2013 in Hong Kong. The child of the family, namely a girl (‘the daughter’), was born in 2014.

2.The relevant chronology is as follows: -

(1)  The parties jointly purchased the former matrimonial home (‘FMH’) a resident flat situation in Kowloon Tong in 2012.

(2)  The parties were married in Hong Kong in 2013.

(3)  The daughter was born in 2014.

(4)  The petitioner husband (‘H’) became a permanent Hong Kong resident in 2017.

(5)  The respondent wife (‘W’) became a permanent Hong Kong resident in 2019.

(6)  H filed the petition for divorce by reason of behaviour on 19 February 2021, amended on 14 May 2021 pursuant to rule 16(2) of the Matrimonial Causes Rules, Cap 179A.

(7)  By the summons filed on 25 May 2021, H made an application for an order for the interim custody, care and control of the daughter.

(8)  Despite that W filed her Form 4 indicating her intention to contest the suit on 23 June 2021, no answer has been filed.

(9)  On 26 July 2021, H filed the Application for Directions for Trial of this cause by the Special Procedure List.

(10)  By the summons filed on 2 August 2021, H made an application for an order prohibiting the daughter from leaving Hong Kong without the leave of the court and the return of the daughter if she is out of Hong Kong.

(11)  Pursuant to the above summons filed on 2 August 2021, and upon H’s personal undertaking to the court that as and when W and the daughter return to the FMH, he shall not enter or remain in the FMH, and upon hearing counsel for the parties respectively, an order prohibiting the daughter from leaving Hong Kong without the court’s leave was made on 5 August 2021.

(12)  By another order made on 5 August 2021, it is ordered that the parties do file and serve their respective Form J within 14 days of the order and the Children Appointment was adjourned to 7 January 2022.

(13)  By the Form A filed on 6 August 2021, H made an application for a lump sum order, a settlement of property order and a transfer of property order in respect of two landed properties in Hong Kong, one of which is the FMH.

(14)  By the summons filed on 24 August 2021, H made an application for an ouster order prohibiting W from entering and remaining in the FMH and the discharge of his personal undertaking to the court dated 5 August 2021.

(15)  By the order made on 25 August 2021, it was ordered that the First Appointment on 18 October 2021 was adjourned and heard together with the Children Appointment on 7 January 2022 and that the parties do file and serve the Form E on or before 6 October 2021.

(16)  By another order made on 25 August 2022, it was ordered that H do have interim access to the daughter.

(17)  On 24 December 2021, the Certificate of Registrar was issued and the court fixed 13 January 2022 for the pronouncement of the decree nisi.

(18)  By the summons filed on 4 January 2022, H made an application for the withdrawal of the Amended Petition and the discontinuance of these proceedings unconditionally, except that costs including all reserved costs be payable by him to W.

(19)  On 4 January 2022, W filed her Form J.

(20)  On 6 January 2022, W filed her Form E.

(21)  Upon the application by the summons filed on 4 January 2022, by the order made on 7 January 2022, it was ordered that the pronouncement of the decree nisi was adjourned to a date to be fixed.

(22)  On 3 March 2022, H issued the divorce application in the People’s Court of Daxing District (大興區人民法院) in Beijing (‘BJ’)[1], in which he seeks the dissolution of marriage, the sole custody of the daughter and financial relief in respect of three landed properties in PRC that are held under W’s name. That is to say, H wishes to have the main suit, the children matter as well as the financial relief to be determined in the legal proceedings in BJ.

(23)  On or about 29 March 2022, W raised the issue of jurisdiction in the legal proceedings in BJ[2].

(24)  By the summons filed on 28 April 2022, W made an application for an anti-suit injunction order and an interim anti-suit injunction order restraining H from continuing the legal proceedings in BJ or commencing any legal proceedings in PRC raising the same or substantially the same disputes or issues as these divorce proceedings.

(25)  By the 2^nd summons filed on 28 April 2022, W made an application for leave to file the answer and cross petition by reason of behaviour out of time

(26)  By the summons filed on 13 May 2022, H made an application for leave to withdraw the summons filed on 25 May 2021, the summons filed on 2 August 2021 and the summons filed on 24 August 2021.

(27)  On 20 July 2022, the People’s Court of Daxing District handed down the judgment that H’s divorce application therein was dismissed inter alia on the ground of forum[3].

(28)  On 22 July 2022, H lodged an appeal against the judgment dated 20 July 2022[4].

3.This is the hearing of H’s summons filed on 4 January 2022 and 13 May 2022 respectively and W’s summons filed on 28 April 2022 for an anti-suit injunction order.

The summons filed on 4 January 2022 and 13 May 2022 respectively

4.Order 21 rule 3(1) of the Rules of the High Court (‘RHC’) provides that except as provided by rule 2, a party may not discontinue an action or withdraw any particular claim made by him therein, without the leave of the court.

5.The applicable legal principles are summarized in Hong Kong Civil Procedure 2022 (at 21/5/11): -

“…The principle underlying the requirement for leave is that after proceedings have reached a certain stage, the plaintiff, who has brought her adversary into court, should not be able to escape by a side door and avoid the contest since she is no longer dominus litis, and it is for the court to say whether the action should be discontinued and upon what terms: Fox v Star Newspaper Co Ltd [1898] 1 QB 636, 639 (Chitty LJ).

Nevertheless it is not desirable that a plaintiff should be compelled to litigate against her will; the court will normally grant him leave to discontinue if she wants to, provided no injustice will be caused to the defendant nor will the defendant be deprived of any advantage which she has already gained in the litigation, which so far as possible should be preserved. The order of the court must take effect from the date on which such leave is granted since the court has no power under the rules or under its relevant jurisdiction to back-date such an order: Covell Matthews & Partners v French Wools Ltd [1978] 1 WLR 1477, [1978] 2 All ER 800 (CA) affirming Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876, [1977] 2 All ER 591; Wong Shing v Loi Kam Cheong (DCPI 1842/2007, [2008] HKEC 1791).”

6.W draws the court’s attention to Coqueen Co Ltd (昶華有限公司) v Chui Wai Kwan (unreported HCMP 438/2010 8 December 2015) where To J held that for the court to grant the leave under Order 21 r.3(1) RHC, good reason must be shown: -

“ [38] A plaintiff applying under this rule has to show he has a good reason to discontinue the action. What is a good reason depends on the circumstances of the case. Examples of good reasons include: that the dispute has become academic; that a crucial witness has died or has otherwise become unavailable; that the subject matter of litigation has ceased to exist; or that the defendant has no means to satisfy any judgment which may be awarded against him. A good reason does not necessarily entitle a plaintiff to unconditional leave to discontinue. It is only the threshold which he must overcome before the court would even consider whether to grant leave to discontinue on terms without costs. Absence of good reason must necessarily mean the starting point applies”

7.W further refers to Castanho v Brown & Root (UK) Ltd [1981] AC 557. The plaintiff therein issued a notice of discontinuance under the then Order 21 rule 2(1) (under which leave was not required) after obtaining an order for interim payment and an admission of liability from the defendants. The discontinuance was with a view to pursuing another action in the court of the States which was likely to award higher damages. The House of Lord unanimously upheld the setting aside of the notice of discontinuance. Lord Scarman stated (at 571G - 572C):

“The court has inherent power to prevent a party from obtaining by the use of its process a collateral advantage which it would be unjust for him to retain: and termination of process can, like any other step in the process, be so used. I agree, therefore, with Parker J. and Lord Denning M.R. that service of a notice of discontinuance without leave, though it complies with the rules, can be an abuse of the process of the court.

Was it, then, in the circumstances of this case, an abuse? In my judgment, it was. A sensible test is that which both the judge and Lord Denning M.R. applied. Suppose leave had been required (as it would have been, if the notice had been served 24 hours later), would the court have granted unconditional leave? It is inconceivable that the court would have allowed a plaintiff, who had secured interim payments and an admission of liability by proceeding in the English court, to discontinue his action in order to improve his chances in a foreign suit without being put upon terms, which could well include not only repayment of the moneys received but an undertaking not to issue a second writ in England.

The notice being an abuse of process, Parker J. was right, in my judgment, to strike it out.”

8.H refers to Fang Meng Sung v Luk Man Lok Rocky & ors [2015] 5 HKLRD 150 where Recorder Lisa Wong SC (as her Ladyship then was) stated: -

4. In case there be any misunderstanding, although they opposed the plaintiff's Summons and (failing such opposition) lodged this appeal, the 2^nd and 3^rd defendants do not in fact object to the plaintiff discontinuing his claims against them. They are however adamant that the plaintiff should make an application for leave to do so (which they do not oppose). The 2^nd and 3^rd defendants take such position not because they wish the Court to impose terms in exercising the discretion to grant leave to discontinue, eg that no other action shall be brought by the plaintiff against the 2^nd and 3^rd defendants in respect of the same subject matter.^v Rather, they insist on leave being sought by the plaintiff because:

(1) A discontinuance by leave of the Court would take effect from the date on which such leave is granted since the Court has no power under the rules or its inherent jurisdiction to back-date an order of discontinuance under O.21 r.3 ( Covell Matthews & Partners v French Woods Ltd [1978] 1 WLR1477 *157 , 1485G-1486F per Bridge LJ and 1487E-F per Buckley LJ).

(2) A counterclaim already filed would not be affected by discontinuance of the action by the plaintiff (O.15 r.2(3)), whereas a counterclaim cannot be set up after discontinuance: The Salybia [1910] P 25 .

In short, the 2^nd and 3^rd defendants desire to have their counterclaim tried in these proceedings.

5. With respect, it appears to me that the time and costs incurred by the parties in pursuing/opposing the plaintiff's Summons and this appeal are hugely disproportionate to whatever advantage/ disadvantage that they perceive they can gain/avoid by contending for the validity/invalidity of the Discontinuance Notice.

6. Indeed, I fail to see any such real or meaningful advantage/ disadvantage from either party's point of view, at least not one worth preserving/avoiding at such costs.

(1) Insofar as the 2^nd and 3^rd defendants are concerned, they could have pursued their counterclaim against the plaintiff by fresh action and then have such action consolidated with the outstanding proceedings herein between the plaintiff and the 1^st defendant, at relatively little cost.^vi

(2) As for the plaintiff:

(a) First, an application for leave to discontinue (especially if it is unopposed) would have been much less costly and time-consuming than one for upholding a discontinuance notice the validity of which is hotly contested and not at all clear.

(b) Second, a ruling of validity of the Discontinuance Notice would not improve the plaintiff's substantive position. The 2^nd and 3^rd defendants would pursue their cross-claims against the plaintiff one way or another.

9.Applying the above legal principles, I take the view that in order to be successful in his application, H must show: -

(1)  good reason for the intended withdrawal and discontinuance; and that

(2)  no injustice will be caused to W, nor will she be deprived of any advantage which she has already gained in the litigation, which so far as possible should be preserved.

10.I am incredulous to the purported reason given in the draft 4^th Affirmation dated 23 December 2021, exhibited and marked ‘HWY-2’ to the 2^nd Affirmation of 候穎賢(solicitor for the petitioner) filed on 4 January 2022 that was produced in support of the summons filed on the same day, to wit the allegation that H wished to withdraw the divorce suit in Hong Kong because he did not want to have lawyers meddling in his family problem[5], as this seems incongruous against the fact that not long afterwards he found it suited his wish to instruct PRC lawyers acting for him issuing the divorce application in BJ on 3 March 2022.

11.I am also incredulous to the reason given in his draft 5^th Affirmation dated 13 June 2022, exhibited and marked ‘HWY-3’ to the 3^rd Affirmation of 候穎賢 filed on the same day, to wit the allegation that he had considered a reconciliation with W but by the end of February, he changed his mind and determined to soldier on the divorce in BJ because he was very disappointed when he found out that W went to PRC and left the daughter in Hong Kong in January 2022[6], as it is contradictory to the fact that by his solicitors’ letter sent out as late as on 2 March 2022, it was purportedly affirmed that he still did not want a divorce.

12.I take the view that H’s explanation[7] that the letter dated 2 March 2022 was sent by his solicitors in mistake as he was unable to give notice of his decision to issue the divorce application in BJ in time due to Covid-19 pandemic etc. is utterly unbelievable. I surmise that issuing a divorce application is not something that happens in the flick of a switch. It involves conferencing with lawyers, collating papers and many other organising and preparation works that require a lot of time to be coped with. There is no way that H was unable to give notice to his solicitors in Hong Kong in the time between. Looking at the evidence in the round, I believe that H’s real reason for the intended withdrawal and discontinuance of the proceedings in Hong Kong always is to facilitate his divorce application in BJ, which in my view, is not a good reason for the granting of the court’s leave for the intended withdrawal and discontinuance for the following considerations.

13.In Hwoo Huang Linda v Fu Being San [2013] 1 HKLRD 259, Deputy Judge Reyes SC (as he then was) set forth the following guidelines for evaluating whether there has been submission to Hong Kong jurisdiction (at §26):

“(1) A party may be treated as having submitted to the jurisdiction if he files a pleading setting out his case on the substantive merits of an action.

(2) A party may be treated as having submitted to the jurisdiction if he invokes the court's jurisdiction to obtain an interlocutory or final order requiring the opposite party to perform some act (for example, disclose documents, provide further and better particulars, or answer interrogatories)

…

(5) A party may be able to preserve an option to challenge forum, despite having engaged in conduct which might be regarded as submission to the jurisdiction, if before or at the time of such conduct he makes it clear that his action is without prejudice to the bringing of a challenge to forum.

(6) The Court should adopt a common sense approach. It must not be overly subtle or astute to find that a party has submitted to the jurisdiction. Otherwise the question of submission could easily become a technicality trap for the unwary. The real question is whether a party's conduct is so inconsistent with maintaining an option to challenge forum that the party should be assumed to have waived such option. In the case of any doubt, the party proposing to challenge forum should probably be given the benefit of that doubt.”

14.I have no doubt that that H’s act of commencing the divorce proceedings in Hong Kong as of right by reason of his domicile in Hong Kong, coupling with his subsequently applications for various reliefs from the court, should be treated as he has voluntarily and unequivocally submitted to the jurisdiction of Hong Kong Family Court. Despite his bold argument to the contrary, I do not accept that he has the liberty to rescind from such submission on his own volition.

15.In order to investigate whether any injustice will be caused to W or whether she will be deprived of any advantage already gained in the litigation, the court is called upon to consider the parties’ arguments about forum non conveniens.

16.The applicable test for forum non conveniens was set out by the Court of Appeal in DCG v SLC [2005] 3 HKC 293, at 297-298, and approved by the Court of Final Appeal in SPH v SA (2014) 17 HKCFAR 364, at §51.

“1. The single question to be decided is whether there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of an action i.e. in which the action may be tried more suitably for the interests of all the parties and the ends of justice?

2. In order to answer this question, the applicant for the stay has to establish that first, Hong Kong is not the natural or appropriate forum (‘appropriate’ in this context means the forum has the most real and substantial connection with the action) and second, there is another available forum which is clearly or distinctly more appropriate than Hong Kong. Failure by the applicant to establish these two matters at this stage is fatal.

3. If the applicant is able to establish both of these two matters, then the plaintiff in the Hong Kong proceedings has to show that he will be deprived of a legitimate personal or juridical advantage if the action is tried in a forum other than Hong Kong.

4. If the plaintiff is able to establish this, the court will have to balance the advantages of the alternative forum with the disadvantages that the plaintiff may suffer. Deprivation of one or more personal advantages will not necessarily be fatal to the applicant for the stay if he is able to establish to the court's satisfaction that substantial justice will be done in the available appropriate forum.”

17.In RI v SSH (Forum and Costs) [2011] HKFLR 338, the Court of Appeal reiterated the underlying legal principles of forum non conveniens as follows: -

Forum non conveniens : underlining principle

2. The underlining principle in challenges against the Hong Kong Court’s jurisdiction on the ground of forum non conveniens is whether the Hong Kong proceeding has a real and substantial connection to Hong Kong. This theme is manifested by the test that in order to succeed in the challenge not only is Hong Kong not the appropriate forum but another jurisdiction is the more appropriate forum. In other words, Hong Kong is not the appropriate forum because another jurisdiction has a real and substantial connection to the proceeding : see Spiliada Maritime Corporation v. Cansulex Ltd [1987] AC 460. Since Louvet v. Louvet and others [1990] 1 HKLR 670, Hong Kong Courts have consistently applied the Spiliada principle to challenges involving the Hong Kong matrimonial jurisdiction: see, for example DGC v. SLC nee C [2008] HKFLR 160. The application of the Spiliada principle to the matrimonial jurisdiction was expressly approved of by the House of Lords in De Dampierre v. De Dampierre [1988] 1 AC 92.

Distinct nature of matrimonial proceeding

3. In Butler v. Butler (No. 1) [1997] 2 FLR 311, Thorpe LJ responding to the argument that in considering what is the natural forum, the Court should exclude all factors that are not directly relevant to an ancillary relief contest, which in that case means that the only relevant factors are difficulties for the wife in litigating in this jurisdiction and inconvenience to witnesses, held that,

‘ In my judgment the judicial analysis is not so confined. Before each court is a suit for divorce, a proceeding that changes status and marks the end of the most intimate of human relationships with all the attendant emotional and psychological turbulence. Although it would now be open to the husband to present a fresh petition alleging 2 years’ separation and consent the route to dissolution is still at large. It is therefore not apt to confine factors to those that would be relevant to the trial of a contractual dispute. The balance of fairness as between the parties to the marriage, the consideration to which the court primarily has regard, should not be construed restrictively. The origins of the parties, the history of their relationship, their post-separation conduct, the consequences of granting or refusing a stay, as well as considerations affecting the preparation and despatch of litigation, are relevant to the exercise of the statutory discretion.’

4. These are wise words and they reflect the distinct nature of a matrimonial proceeding. I do not, however, understand them to mean a departure from the Spiliada principle. Matrimonial proceedings are concerned with human beings and the regulation of their lives after the dissolution of their union as husband and wife in terms of custodial and financial provisions. Hence in order to see whether the proceeding has a real and substantial connection to Hong Kong, one must, first of all, ascertain whether at the time of its commencement the parties have substantially conducted their matrimonial life in Hong Kong. Hong Kong being an international commercial city, the identification of this issue is most acute for expatriate families who live in Hong Kong. The relevant considerations are, for example, whether the parties’ matrimonial home is here; what is their past pattern of life; do they regard Hong Kong as their home for the time being even if their life style may indicate that they may not take root in one place for too long a time. Related to the issue are matters such as the place of work of the spouses: do they choose to work here; even if one of them has to ‘commute’ overseas to work, is Hong Kong still treated as their home base. Likewise for the children of the family: are they studying here or spending their vacations here even if they are studying abroad.

5. These considerations may well overlap with the considerations in deciding whether either of the parties is ‘habitually resident’ in Hong Kong for the purpose of commencing a divorce in Hong Kong. If the parties are habitually resident here, the petitioner is entitled to commence the proceedings as of right in Hong Kong and this factor must be given recognition in the ‘real and substantial connection’ deliberation.

18.Although an application for a stay of proceedings on the ground of forum non conveniens is usually made by a defendant, with a view to requiring the claim made by the plaintiff in the proceedings be litigated in some other jurisdiction, in the present case, it is the petitioner’s application for leave for withdrawal and discontinuance of the present proceedings with a view to carrying on the proceedings in BJ.

19.H is pursuing his present applications against the backdrop of his divorce application in BJ having already been dismissed by the People’s Court of Daxing. As things stand, it is simply unlikely for him to be able to get his argument that BJ is the more appropriate forum off the ground.

20.What is more, the evidence clearly shows that Hong Kong is the more appropriate forum.

21.It is not disputed or indisputable that: -

(1)  The parties are Hong Kong permanent residents;

(2)  H has given up his huji (戶籍) in PRC for the purpose of obtaining the permanent residency in Hong Kong;

(3)  The parties acquired properties including the matrimonial home in Hong Kong;

(4)  The daughter was born, raised and educated in Hong Kong;

22.W’s case is that the parties lived their matrimonial life in Hong Kong and even if H had to travel to PRC for business, Hong Kong was still treated as their home base at least before the parties were separated in 2020. The parties are in dispute on whether he has resided in PRC most of the time since 2017. Despite that it is obviously inappropriate to make any finding on the parties’ factual disputes on paper examination, I take notice that H has voluntarily and unequivocally submitted to the jurisdiction of the Hong Kong Family Court to deal with the divorce petition, children and ancillary relief matters based on H’s domicile in Hong Kong. It is trite that “Domicile” is generally understood to mean the place where the party considers to be his permanent home, and nowhere else. Accordingly, his own case is that Hong Kong was his permanent home at the material time, no matter whether he has resided most of the time in PRC since 2017.

23.After having carefully considered the evidence, I am satisfied that that Hong Kong was the place where they lived their matrimonial life and the parties have established a real and substantial connection to Hong Kong.

24.Notwithstanding that as H has been unable to establish that BJ is an available forum having competent jurisdiction and is the appropriate forum for the trial of the parties’ dispute, there is actually no need for W to establish that she will be deprived of a legitimate personal or juridical advantage if the divorce proceedings are tried in BJ, for the sake of completeness, I go on with a discussion on the parties’ arguments about legitimate juridical advantages and disadvantages if the divorce proceedings are tried in BJ.

25.Despite that H raises the issue of the location of witnesses and evidence, he has not provided the clear substance of the dispute or any convincing explanation for the difficulties for the relevant witnesses or evidence to come to Hong Kong. In the absence of the clear substance of the dispute, it is difficult for the court to know how the said connecting factors will affect the trial. Additionally, as it is open to witnesses to seek leave to give evidence on behalf of the parties via the court’s video conferencing facilities, I take the view the fact that witnesses may have difficulty with personal attendance at court hearing due to travel restrictions is of less significance.

26.Despite it is accepted that the parties have substantive assets in PRC, I do not accept that the argument that H needs an injunctive order in BJ in order to prevent any dissipation of assets on the part of W is a determinative factor in the present case. Suffice to say: -

(1)  There is not a shred of evidence to support that there is any risk of dissipation and it is yet to be seen whether there is any actual need for the said injunctive relief;

(2)  If so required, the Hong Kong Family Court has the jurisdiction of making a worldwide Mareva injunction order or an order for transfer and settlement of property worldwide;

(3)  Over and above, the Hong Kong Family Court judgment including injunction order may be enforced in PRC under the Mainland Judgments in Matrimonial and Family Case (Reciprocal Recognition and Enforcement) Ordinance Cap.639 and Rules Cap 639A[8].

27.Taking into consideration the starting point that under the special procedure, the registrar certified on 24 December 2021 that H has proved the contents of the petition and is entitled to a decree, I take notice that but for his summons filed on 4 January 2022, the decree nisi would have already been pronounced on 13 January 2022. W’s 2^nd summons for the setting aside of the Registrar’ Certificate and time for the filing and service of the answer and cross petition filed on 28 April 2022 notwithstanding, after having taking into consideration of all evidence, I take the view that it will be conducive to have the divorce suit disposed of costs-effectively, expeditiously as is reasonably practicable if the divorce suit is to be dealt with in the Hong Kong Family Court. If W fails in her 2^nd summons filed on 28 April 2022, the parties are entitled to the grant of a decree nisi in no time. Even if W succeeds, I take notice that in view of that the parties have been living separated since August 2020, W now asserts that she will be prepared to seek the court’s leave to issue a fresh petition by reason of two-year separation instead of unreasonable behaviour, if an extension of time for the filing and service of her answer and cross-petition is given, so much so that it is probable that the main suit will be sorted out costs-effectively, expeditiously as is reasonably practicable by the reason of 2-year separation. In such event, leave will usually be given to H for the withdrawal of the first petition but only on the condition that all papers and orders therein will be transferred to and will take effect in the 2^nd petition and thus, the parties will not be deprived of any advantage that they have already gained in the 1^st petition that so far as possible should be preserved.

28.As to W’s argument that there will be undue delay on financial disclosure and the disposal of the children matter if W is required to issue a fresh petition, H argues that such prejudice, even if established, is brought on by W spending a disproportionate time and costs in contesting H’s application for withdrawal and discontinuance, as by the letter sent as early as on 2 September 2021, H wrote to W that he wished to withdraw the divorce proceedings herein. I take notice that by the letter dated 11 October 2021, W sought clarification about H’s reason for the intended withdrawal and discontinuance, in particular whether H wanted the parties’ reconciliation or he was planning to withdraw the present proceedings in order to commence divorce proceedings in another jurisdiction. In spite of that, he withheld his real reason from W and as a result, she was kept in a false hope about a possible reconciliation between the parties until she received the phone call from the People’s Court of Daxing District in March 2022. I take the view that W’s hesitation in giving her consent to his application is well justified and I do not accept H’s argument that W has wrongfully caused delay in the proceedings by withholding her consent to his applications.

29.Up to-date, H has refused to comply with the court order for the filing and service of his Form J and Form E, or to engage with the social welfare officer for the purpose of preparing the social investigation report pursuant to court order, despite that during the hearing on 7 January 2022, it was specifically directed that H should file and serve his Form E timely notwithstanding his applications by the summons filed on 4 January 2022 and 13 May 2022 respectively. It is worthy of noting that it is W’s complaint that H has failed to make a full and frank disclosure of his assets in the divorce application in BJ. W suggests that H is a multibillionaire. I accept that W will be justifiably aggrieved and felt unfairly treated if the court seems simply content to look the other way over his abovementioned poor conduct in these proceedings. I accept that she should not be deprived of having his Form J and Form E filed and served as soon as possible in these proceedings.

30.According to the unchallenged legal opinion produced by PRC lawyers on behalf of W[9], there is no ‘absolute duty’ for the parties to disclose their financial situation in divorce proceedings in the PRC courts. In the circumstance, I accept W’s argument that she will be deprived of having the legitimate juridical advantage of having the comprehensive discovery procedures available in the Hong Kong Family Court if H discontinues and withdraws the present proceedings and the divorce application is tried in BJ

31.Despite that on top of the above, PRC lawyers have also given the legal opinion on behalf of W that pre-marital assets are not considered as matrimonial assets and are not subject to distribution during the divorce proceedings in PRC and it is uncertain whether the PRC courts can make order concerning overseas properties under PRC laws, there is no evidence whatsoever on exactly how the abovementioned constraints will impact on the BJ court’s award to financial distribution. In the circumstance, it is impossible for the court to put an appropriate weight to such alleged disadvantage.

32.According to the legal opinion produced by PRC layers on behalf of H[10], the PRC courts approach the question of the impact of extra-marital affair on financial distribution in the context of a compensatory damages for injury cause on the party not at fault.

33.In Pusan Newport Co., Ltd v The Owners and/or Demise Charters of the ships or vessels “Milano Bridge” and “CMA CGM Musca” AND “CMA CGM Hydra” [2022] HKCA 157 the Court of Appeal stated: -

49. The question at the third stage of whether substantial justice will be done in the foreign forum is one that is to be approached by considering all the circumstances, not just the juridical advantages relied upon. In this exercise the court faces the conundrum that an advantage to the plaintiff is often the obverse of a disadvantage to the defendant. The solution offered in Spiliada, retracting from a previous formulation that appeared to give almost decisive emphasis to the loss on the plaintiff’s part of a legitimate juridical or personal advantage, is to state that the question whether there is some other tribunal in which the case may be tried more suitably for the interests of all the parties and for the ends of justice is to be answered objectively, and that simply affording the plaintiff his advantage at the expense of the defendant is not consistent with an objective approach.

50. It is important to bear in mind that the exercise in Stage 3 presupposes that Hong Kong is not the natural or appropriate forum and that there is another forum which is clearly or distinctly more appropriate than Hong Kong (“appropriate” being a reference to the forum that has the most real and substantial connection with the action). The general principle is that once a clearly more appropriate foreign forum has been identified, generally speaking the plaintiff will have to take that forum as he finds it, even if it is in certain respects less advantageous to him than the Hong Kong forum – the court will ordinarily not be satisfied that a plaintiff will not obtain justice in the foreign jurisdiction merely because he will enjoy procedural advantages or a higher scale of damages or more generous rules of limitation in Hong Kong: Spiliada at p 482-483; Connelly at p 872F-G; Lubbe v Cape plc [2000] 1 WLR 1545, 1554H.

…

56. Stage 3 calls for an evaluative exercise that involves weighing the fairness to the parties. The process evokes measuring the extent to which the parties deserve the juridical advantages or disadvantages concerned, a question that should take into account the geography of the case. It can, I think, readily be accepted that the stronger the connections with a jurisdiction, the more deserving the parties are of the juridical consequences, favourable or otherwise, flowing from a trial there. In this sense the analysis is not completely divorced from the factors relevant in Stage 1…

34.H has pleaded a flurry of accusations concerning misbehaviour including but not limited to extramarital affairs on the part of W in the divorce application in BJ, to which W vigorously denies. The parties’ disputes in this regard will be a matter for substantive trial. Despite the notorious unpredictability of litigation, I am prepared to accept that there is a chance that H will be deprived of having an award that will be based on the so-called fault based approach if the action is not tried in BJ. However, there is no evidence whatsoever on exactly how the so-called fault based approach will impact on the BJ court’s award to financial distribution. It is impossible for the court to put an appropriate weight to the alleged disadvantage in the balancing exercise of the ends of justice test. Moreover, applying the Court of Appeal’s decision in Pusan Newport Co., Ltd op. cit., Hong Kong having been identified as clearly the more appropriate forum in my judgment, generally speaking H will have to take Hong Kong as he chooses it, even if it is in certain respects less advantageous to him than the BJ forum.

35.After having carefully considered the evidence, and balancing the juridical advantages of the BJ forum with the disadvantages that W may suffer, I take the view that Hong Kong is to be preferred to BJ.

36.Both parties seek the custody, care and control of the daughter. The daughter is living with W in Hong Kong. Obviously, it will be conducive to have the children matter disposed of costs-effectively, expeditiously as is reasonably practicable if the children matter is to be dealt with in Hong Kong.

37.Taking into consideration the progress already made in the present proceedings in Hong Kong, I accept that there will be undue delay on the disposal of the main suit as well as the children matter and financial disclosure if W is required to issue a fresh petition and at the same time, H withdraws and discontinues these proceedings unconditionally.

38.After having carefully considered the evidence, I am satisfied that Hong Kong is the more appropriate forum than BJ.

39.After having carefully considered all evidence, I take the view that H does not show a good reason for the intended withdrawal and discontinuance and that if leave for withdrawal and discontinuance is granted, injustice will be caused to W and she will be deprived of the advantage of having the main suit disposed of costs-effectively, expeditiously as is reasonably practicable, having H’s Form J filed and served in accordance with the court order, and having the children matter disposed of costs-effectively, expeditiously as is reasonably practicable, and having his Form E filed and served in accordance with the court order, which so far as possible should be preserved.

40.In conclusion, I order that the summons filed on 4 January 2022 and 13 May 2022 respectively be dismissed.

W’s summons filed on 28 April 2022

41.The parties are not in dispute of the applicable legal principles for anti-suit injunction applications as summarised by the court recently in BGPB v KSW [2021] HKCFI 1366, applying Societe Nationale Industrielle Aerospatiale v Lee Kui-jak [1987] 3 All ER 510 §§[9]- [10].

42.W further refers to Liaoyang Shunfeng Iron and Steel Company Limited and Anor v Yeung Tsz Wang and Anor (unreported CACV 234/2011 14 June 2012 §§88-89, 119) as follows: -

1. The established principles for the grant of an anti-suit injunction are as follows:

(1) The Hong Kong forum should have a sufficient interest in, or connection with, the matter in question to justify the indirect interference with a foreign court which an anti-suit injunction entails. In an alternative forum case, this will involve consideration of the question whether the Hong Kong court is the natural forum for the resolution of the dispute;

(2) An injunction should only be granted when the “ends of justice” require it. Generally speaking, this may occur when the foreign proceedings are vexatious or oppressive;

(3) The court decides to grant an injunction, its order is directed not against the foreign court but against the parties so proceeding or threatening to proceed;

(4) An injunction will only be issued restraining a party who is amenable to the jurisdiction of the court and against whom an injunction will be an effective remedy; and

(5) Since such an order indirectly affects the foreign court, in exercising the jurisdiction, regard must be had to comity, and the jurisdiction is one which must be exercised with caution.

Airbus Industrie G.I.E. v Patel [1999] 1 AC 119, at 138G (Lord Goff of Chieveley); at 133 (Lord Goff); and Société Aerospatiale v Lee Kui Jak [1987] 1 AC 871 at 892A-F.

43.In my judgment, Hong Kong is the natural forum for the resolution of the parties’ disputes, see paragraphs 4 to 40 in the above.

44.The fact that this court has concluded that Hong Kong is the natural forum does not entitle it on that ground alone to restrain H from proceedings in BJ. It would be inconsistent with comity. An injunctive relief should only be granted when the “ends of justice” require it. This may occur when the BJ proceedings are vexatious or oppressive.

45.The parties are in dispute on whether H is forum shopping, or has acted in a vexatious or oppressive manner in his commencement of the proceedings in BJ.

46.In Pusan Newport Co., Ltd v The Owners and/or Demise Charters of the ships or vessels “Milano Bridge” op. cit. the Court of Appeal stated: -

31. In my view, the Judge’s characterization of the Plaintiff’s conduct of litigating in Hong Kong because of the higher tonnage limit as “forum shopping” is incorrect. It is clear from the judgment of the Court of Appeal (constituted by Yang VP, Hunter JA and Nazareth J) in The Adhiguna Meranti, at 907I-908B, that the pejorative description of “forum shopping” is a conclusion only to be drawn after the court has performed the entire Spiliada exercise and reached the view that the other forum outside Hong Kong is more suitable for the interests of all the parties and the ends of justice:

“… If the answer to (II) is yes, a court has to balance the advantages of (I) against the disadvantages of (II), Abidin Daver per Lord Brandon at p. 419. Deprivation of one or more personal or juridical advantages will not necessarily be fatal to the applicant provided that the court is satisfied that notwithstanding such loss ‘substantial justice will be done in the available appropriate forum’ (p.991H). The court must try to be objective (p. 991F). Proof of this, which can fairly be called the ultimate burden of persuasion, rests upon the applicant for the stay. By these means he establishes that on balance the other forum is more suitable ‘for the interests of all the parties and the ends of justice’. This may be another way of saying that the plaintiffs’ choice of forum has been shown to be so inappropriate as to deserve the pejorative description of ‘forum-shopping’ and to be restrained accordingly, cp. Lord Reid in The Atlantic Star [1974] AC 436.” [underlining added]

32. The Judge has, however, read the above passage in The Adhiguna Meranti as support for the proposition that the Court of Appeal took the view that the deprivation of juridical advantage would not outweigh a case where proceedings were started in Hong Kong for little more than reason of forum shopping (see §102 of the Decision). It seems to me that the Judge has mis-read the above passage. What the Court of Appeal was saying was that if, notwithstanding the deprivation of one or more personal or juridical advantages in the plaintiff’s chosen forum (ie Hong Kong), substantial justice will still be done in the available appropriate forum (in other words, on balance the other forum is more suitable for the interests of all the parties and the ends of justice), it would then be appropriate to describe the plaintiff’s choice of forum as “forum-shopping” and restrain the plaintiff’s action accordingly. There is nothing in that passage which supports the proposition that commencing proceedings in Hong Kong with a view to obtaining the juridical advantage of a higher limit of liability should in itself be regarded or categorised as forum shopping.

47.Taking into consideration: - (1) In my judgment, he has voluntarily and unequivocally submitted to the jurisdiction of Hong Kong that (2) Hong Kong is clearly the natural forum for the resolution of the parties’ disputes, and that (3) He has actively taken part in these proceedings, I accept W’s argument that he is forum shopping in his commencement of the proceedings in BJ.

48.Furthermore, taking into consideration: - (1) his forum shopping, (2) his concealment of the intention to commence divorce proceedings in BJ from W and (3) his refusal to comply with the court order for the filing and service of his Form J and Form E, or to engage with the social welfare officer for the preparation of the social investigation report, I accept W’s argument that he has acted in a vexatious or oppressive manner in his commencement of the proceedings in BJ.

49.In conclusion, I order that H, whether by himself, his servant or agent or otherwise be restrained from continuing the legal proceedings commenced in the People’s Court of Daxing District. I make no order as the rest of the paragraph 1 or the paragraphs 2 and 3 of the summons filed on 28 April 2022.

Costs

50.Presently, I see no reason why costs should not follow the event. I order nisi that H do pay W the costs of the summons filed on 4 January 2022 and 13 May 2022 respectively and the summons filed on 28 April 2022 including all reserved costs with certificate for counsel. The order nisi becomes absolute 14 days after this order is made unless a party has applied to the court for varying the order.

Enzo Chow and Benny Sham instructed by KYMS Law Office for the petitioner husband

Felix Li and Teresa Yu instructed by Au, Thong & Tsang solicitors for the respondent wife