朱 v. 劉
Read the full judgment text of FCMC 8529/2021 on BabelCite. This Family Court judgment was delivered on 4 November 2022 before Deputy District Judge Felix Li.
Divorce – Jurisdiction – Domicile – Substantial Connection – Forum non conveniens – Matrimonial Causes Ordinance – PRC – Canada – Petition dismissed for want of jurisdiction – Costs awarded to Respondent
Legal issues: Domicile · Substantial Connection · Forum non conveniens
Outcome: Petition dismissed for want of jurisdiction; MPS Summons dismissed.
Cited by 2 cases · Cites 17 cases
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FCMC 8529/2021 [2022] HKFC 223 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO.8529 OF 2021 ----------------------------
---------------------------- Coram: Deputy District Judge Felix Li in Chambers (not open to public) Date of Hearing : 5 and 6 September 2022 Date of the Petitioner’s further written submission : 7 October 2022 Date of the Respondent’s further written submission : 14 October 2022 Date of the Petitioner’s further reply submission : 19 October 2022 Date of Decision : 4 November 2022 ------------------------------------------------------------ D E C I S I O N (Jurisdiction / forum non conveniens) ------------------------------------------------------------ THE APPLICATIONS 1.On 15 December 2021 the Respondent Husband filed a Summons in applying to dismiss the Petitioner Wife’s Petition filed on 24 August 2021 (“the Petition”) for want of jurisdiction, or, alternatively to stay these proceedings in favour of the Shenzhen Yantian District People’s Court, PRC (“the Yantian Court”) on the ground of forum non conveniens. The said Summons was later amended to the effect of staying these proceedings in favour of another court, namely the Shenzhen Luohu District People’s Court, PRC (“the Luohu Court”) instead. It is this Amended Summons filed on 20 June 2022 which is now before this Court for determination. (“Jurisdiction Summons”) 2.On the other hand, the Petitioner Wife filed a Summons on 28 April 2022 seeking maintenance pending suit for herself, as well as legal costs provision in these proceedings. (“MPS Summons”) At the directions hearing on 20 May 2022, it was directed that the substantive hearing of both of these two Summonses be fixed on 5 & 6 September 2022, with the Court firstly determining the Jurisdiction Summons, then followed by the MPS Summons. 3.In this Decision I shall refer to the Petitioner as the Wife, the Respondent as the Husband, and the children of the family collectively as the Children. 4.At the substantive hearing, it was common ground between the parties that in the event the Court rules against the Wife on the Jurisdiction Summons, be it under s.3 of the Matrimonial Causes Ordinance, Cap. 179 ("MCO”) or the forum non conveniens ground, the MPS Summons would naturally fall apart, by the simple reason that the Court will have no jurisdiction to deal with the latter; on the other hand if the Court rules in favour of the Wife on the Jurisdiction Summons, the Court will determine the MPS Summons. 5.I had already indicated at the beginning of the hearing that I would reserve my judgment on the Jurisdiction Summons. It was then agreed by the parties that they would nevertheless want the MPS Summons to be heard in any event on the same occasion so as to save time and costs. I also agreed that this would be an efficient approach. The Husband has made clear that any and all submissions made in his opposition to the MPS Summons are not to be viewed as his submission to jurisdiction. I think this is clear and fully accepted by the Wife. 6.As such, the MPS Summons was heard immediately following the Jurisdiction Summons and at the end of that hearing I had also reserved my judgment. Accordingly, this Decision deals with both Summonses, save and except for reasons I am about to elaborate below, there is in effect no need for me to determine the MPS Summons as it turns out. I. JURISDICTION SUMMONS Relevant Factual Background 7.Both the Wife and the Husband were born in Mainland China (PRC) and at the time of this hearing, the Husband was 49 and the Wife was 40 years old respectively. They met and started a relationship in Russia in the early 2000’s when both parties studied there and the Husband also worked in Russia for some time post-graduation. In around 2005 the Husband relocated to Shenzhen for work and soon after, the Wife followed and joined him in Shenzhen in 2006. The parties were then married on 15 October 2007, in Futian District of Shenzhen. 8.It is the Wife’s case that in fact soon after they got married, they already planned to migrate to Hong Kong and that steps were taken to prepare for an application under the Quality Migrant Admission Scheme (QMAS) of Hong Kong. As part of their planning, the Husband incorporated a Hong Kong company named MHKCL in November 2007, just one month after marriage, and that the Husband submitted his application under the QMAS in 2008. There seems to be little dispute on this from the Husband. 9.In August 2009, their first child, a girl, was born in Hunan PRC, which is the home province of the Wife and thereafter the parties and the daughter resided in Shenzhen. In 2010 the QMAS application of the Husband was approved but they remained residing in Shenzhen. Their second child, a boy, was born in Hong Kong in July 2011. After giving birth to the son in Hong Kong, the parties remained residing in Shenzhen with the daughter only while the son was arranged to be cared for by the maternal grandparents in Hunan. 10.In January 2013, the Husband relocated to Hong Kong with the daughter. Then in 2014, the son was arranged to join the Husband and the daughter in Hong Kong. As to the Wife, while the parties have some disputes here as to whether the Wife’s travelling in and out of Hong Kong between 2013 and 2019 would amount to having a family life in Hong Kong, it is at least not disputed that during this said period the Wife was in employment in Shenzhen and resided in Shenzhen predominantly. 11.The parties have helpfully submitted a table summarising the travel record of the Wife obtained from the Hong Kong Immigration Department between 2013 and 2019 when the Wife would travel in and out of Hong Kong on the strength of her dependency visa. In gist it shows that :-[1]
12.The Husband and the daughter obtained permanent residencies in Hong Kong in 2017. At all material times the Husband was living under rented abodes by entering into various tenancy agreements within the same estate, namely Castello, in Shatin, Hong Kong. The Wife says she would frequently visit the Husband and the Children and sometimes would stay overnight at the Hong Kong residence, only that the frequency of her overnight stays would be kept to a minimal in order to avoid confrontations with the Husband. 13.Pausing here, it was noted at the hearing and brought to the attention of the Wife that while in her Petition she pleaded such frequency of visits to be ‘around once a week’, and in her written submission and chronology to be ‘almost every day’, her travel records seem to suggest otherwise. To this, Mr. Tam acting for the Wife fairly clarified and accepted what is stated in the travel records to be the more accurate reflection. 14.I say ‘the more’ accurate as opposed to ‘the’ accurate reflection since the travel records can only be telling as to the frequency of her travelling in and out of Hong Kong – but it cannot conclusively reflect whether the purpose of all those visits were to visit the family. This is especially so when it is the Husband’s case that the Wife as part of her job would frequently purchase goods in Hong Kong and sell them in the PRC and therefore she would need to frequent between Hong Kong and Shenzhen in any event. The Husband also denied the Wife had ever stayed overnight in Hong Kong at his residence. In fact, the Husband went as far as to deny there was ever any ‘family life’ in Hong Kong between 2013 and 2019. I shall return to this later. 15.On the other hand, it is accepted by both parties for the purpose of the Jurisdiction Summons that the Husband was domiciled in Hong Kong between 2013 and 2019, or to be precise, right until his departure with the Children to Canada on 8 January 2020. Departure to Canada 16.It is the Husband’s case that in around the second half of 2019 he had decided to take the Children to Canada, upon the prevailing social unrest in Hong Kong and in planning so, he had asked his sister who lived in Canada since 2005 in relation to school placements and was told that they would generally be available in Canada. By that time, the mother of the Husband had already become a permanent resident of Canada in around April 2019 and also planned to leave Hong Kong for Canada in 2020. 17.The Husband accepts that he initially considered sending the Children to Shenzhen for schooling at that time, but upon making enquiries he was told that no suitable placements were available for the Children. There was an international school proposed by the Wife but the school fees would be at around RMB250,000 per child annually which the Husband found to be too expensive. The decision to go to Canada was discussed and consented by the Wife. 18.To this the Wife accepts she agreed to the Husband’s departure to Canada with the Children but she says her agreement was based on the understanding that the arrangement was meant to be a temporary one and solely for the purpose of primary education. She says it is not unusual under the Mainland culture for children to return to Hong Kong upon completion of overseas primary school education[2]. 19.The Husband’s case is that the agreement to leave Hong Kong for Canada was based on the understanding that, in the event the Children have settled well in Canada, it was open to consider remaining in Canada indefinitely. In other words, it is the Husband’s case that at the time of departure, he was uncertain and keeping an open mind but subsequently having seen the Children adapted well and showing fondness of Canada, he had decided to stay indefinitely in Canada with the Children and that he says he was, in any event, domiciled in Canada as at the date of the Petition[3]. 20.The period between departure and the date of Petition is about 1 year and 7 months and there is no dispute that the Husband, apart from two visits to Hong Kong between June and August 2020 amounting to 14 days and 19 days respectively, had been residing in Canada throughout the entirety of this period. Thus, in other words, it is the Husband’s case that his domicile has changed at some point in between this period, but without being able to pin-point a specific moment of time. 21.At the hearing I have been invited to focus on the matters as at the date of the Petition. While this is no doubt the correct approach it is not to say that events prior to, or for that matter, post-petition are irrelevant. For the sake of brevity I will not list out all the relevant facts surrounding the date of the Petition and suffice for me to remind myself that in determining jurisdiction matters under s.3 MCO, all circumstances must be considered, especially in dealing the issue of substantial connection it is, as described by case law to be stated below, highly fact-sensitive. The Divorce Proceedings in the PRC and HK 1st PRC Proceedings 22.In fact it was the Husband who firstly initiated divorce proceedings in the PRC on 31 July 2020, i.e. some 6 months after the said departure, by commencing the same under the Yantian Court. (“1st PRC Proceedings”) The Wife defended acting in person and in gist, she first disputed her ‘habitual residence’ to be the Yantian District when she contended it should be the Luohu District instead. She succeeded and accordingly the case was transferred to the Luohu Court; then, the Wife opposed to the divorce in the Luohu Court on the ground that the marriage had not broken down irretrievably and succeeded on the same. The 1st PRC Proceedings were thereby dismissed on 5 February 2021[4]. 23.What transpired from the 1st PRC Proceedings is that in the Judgment of the Luohu Court it is stated inter alia that the Wife told the Luohu Court the agreement for the Husband and the Children to go to Canada was reached by the parties’ consent and that the Wife intended to join them and live together in Canada at a later stage[5]. The Petition 24.By the Petition, which was taken out about 6 months after the 1st PRC Proceedings were dismissed, the Wife pleaded therein:
25.One would immediately note that the Wife seeks to rely on as many as three possible grounds (when only one is necessary) to establish jurisdiction under s.3 MCO, namely, (i) the Husband’s domicile in Hong Kong; (ii) the Husband’s substantial connection with Hong Kong; or (iii) the Wife’s substantial connection with Hong Kong. Queries had been raised at the directions hearing as to the Wife’s position on this and in short, by the time the matter comes before me at the hearing, I have also sought to clarify with the Wife and Mr. Tam confirmed he was to rely on all three grounds and despite the word ‘and’ was pleaded under substantial connection, he meant the Wife ‘or’ the Husband. There seems to be no misunderstanding from the Husband about this and so it was proceeded on such basis. It appears to me that logically the Wife would then be relying on domicile as her primary case and only in the event she fails to establish the same, she would then seek to rely on either party’s substantial connection. Mr. Tam agrees to this and did not further inform me as to which party’s substantial connection would then become his first alternative case, then followed by his 2nd alternative case. In any event I think it matters not in this respect. 26.Rather, in my view, what matters is that the Wife clearly was not able to choose between which of the grounds to rely upon and has therefore chosen to adopt the ‘catch-all’ approach. This has been commented in JQ v CLY (Jurisdiction; substantial connection) [2021] HKFLR 299 (at 302D-F) where it is stated :
27.With respect, I share the same observation in the present matter especially when the Court has once again raised this to the Wife at the beginning of this hearing. On the other hand, I must say there are no rules to debar a party from relying on more than one of the grounds under s.3(a) to (c) MCO and accordingly the Wife was fully entitled to plead, in the manner she did, as a matter of law, her grounds. Only that practically speaking, in doing so it would burden the parties and the Court on more live issues to be resolved than what is necessary. 28.The Husband for his part disputed jurisdiction as evidenced in his Form 4 filed on 24 November 2021 whereby he stated clearly his intention to challenge jurisdiction and forum in these proceedings. 2nd PRC Proceedings 29.The Husband then took out a fresh divorce application in the Yantian Court on 29 November 2021 (“2nd PRC Proceedings”) on the basis that since the Wife herself has now petitioned for divorce in Hong Kong it must mean that she would no longer contend that the marriage has not broken down irretrievably and thus, and on the strength of some PRC legal advice provided to the Husband, it is likely that the PRC Court will accept the divorce this time. The Wife was once again acting in person and opposed on the same ground initially, namely that it ought to be heard in Luohu Court instead and she once again succeeded as evidenced by the judgment of the Yantian Court dated 28 March 2022 ordering the matter be once again transferred to the Luohu Court for determination[6]. 30.Then, the Wife sought legal representation in the PRC and by her answer (民事答辯狀) dated 6 July 2022[7], her lawyers has raised, on her behalf, jurisdictional challenge on the basis that she had already commenced divorce proceedings in Hong Kong and the same matter should not be re-litigated in the Luohu Court. A hearing took place on 14 July 2022 and it was resolved by the Luohu Court that (i) the matter was adjourned for 2 months for mediation, noting the Hong Kong Courts will conduct a hearing on jurisdictional challenges in September 2022; (ii) in the event the Hong Kong Courts have no jurisdiction over the matter, the Luohu Court has jurisdiction and will proceed to determine the divorce; and (iii) in the event the Hong Kong Courts have jurisdiction over the matter, the position of the Luohu Court will not be so certain then[8]. 31.After this hearing, the Luohu Court handed down a judgment on 20 September 2022 in dismissing the 2nd PRC Proceedings. This caused the Wife to have filed a Summons on 7 October 2022 for the inclusion of this piece of post-hearing evidence for this Court’s consideration. Her Summons was opposed by the Husband and I have directed the disposal of this Summons to be dealt with on paper, together in this Judgment. I shall return to this matter later. JURISDICTION The law 32.Counsel for the respective parties have cited a number of authorities to demonstrate the relevant legal principles concerning domicile, substantial connection, as well as forum non conveniens. It is clear to me that the general legal principles are not in dispute and are applicable to this matter and I shall accordingly apply them in my analysis below. 33.S. 3 MCO provides that :-
34.There is no dispute that the burden rests on the Wife, as the Petitioner in these proceedings, to satisfy the Court that this Court does have jurisdiction under s. 3 MCO. In addition, it is trite that the parties cannot confer jurisdiction on the Court if the Court does not have one and thus this Court also retains an independent duty to investigate whether it has jurisdiction to the Petition: W v C (Domicile and Forum) [2013] HKFLR 213. 35.It is also trite that whether it is under domicile or substantial connection, the Court should focus on matters “as at the date of the petition” notwithstanding a holistic approach is otherwise called for. A. Domicile The law on Domicile 36.The oft-cited passages in the Court of Appeal decision in ZC v CN (Divorce: jurisdiction) [2014] 5 HKLRD 43 (at 50 to 52) are helpful guidance and worth repeating here concerning both domicile and substantial connection:
37.ZC v CN has been adopted and followed in the more recent case in Z, SN (aka K, SN) v K, VSF [2019] HKFLR 373 (at 378H to 379F) where the Court of Appeal identified for a petitioner to establish domicile she has to satisfy the court that (i) the respondent was present in Hong Kong and (ii) he intended to make Hong Kong his home for an indefinite period. The list of factors set out above in Y v W is reference as to the question of “settled intent”. 38.Application of the list of Y v W factors must be exercised with flexibility commensurate with circumstances peculiar to each case, and that the relevance and weight to be given to these factors, which are not meant to be exhaustive or determinative, may vary: LCYP v JEK [2015] 4 HKLRD 798 (at 832), per Kwan JA. Discussion on Domicile 39.With the burden of proof on the Wife, Mr. Yim acting for the Husband firstly invited the Court to take into account of the indisputable fact that as at the date of the Petition, the Husband was not in Hong Kong and in strictly applying s.5(2) of the Domicile Ordinance, the first requirement under s.5(2)(a) is thereby not satisfied. In submitting so, Mr. Yim has fairly conceded that the mere physical absence of the Husband as at the date of the Petition itself will not be sufficient to conclude the matter in the Husband’s favour and the Court will in any event look at other factors and he only wishes to highlight this point as one of the more important considerations. 40.In my view, upon a plain reading of s.5(2) of the Domicile Ordinance, it talks about an adult acquiring a new domicile in a country. In this present matter it has been agreed that the Husband did domicile in Hong Kong prior to his departure to Canada and as such, it has always been the Wife’s case that the Husband has yet to have severed his domicile in Hong Kong notwithstanding the departure, and therefore criticisms were made as to the fact that the Husband was not even able to point to a specific date when his domicile has changed. To me, while the direct question of exactly when the domicile of the Husband did change from Hong Kong to Canada need not be determined by this Court, on the other hand, by the simple proposition that a person cannot have more than one domicile at one time, and as the Husband is now positively asserting he was domiciled in Canada, not Hong Kong, as at the date of the Petition, then it effectively means that the real task before this Court is to investigate, conversely, if the Husband has acquired this alleged new domicile in Canada on the date of the Petition by applying the same tests namely, whether he was present there and whether he intends to make a home there for an indefinite period. I have in any event not lost sight of the requisite burden of proof when applying this reverse logic to the present matter. 41.Bearing in mind the factors in Y v W but without mechanically listing them out here, and focusing on the state of affairs as at the date of the Petition on 24 August 2021, and without repeating every detail argument put forward by the parties, my analysis is as follows:
42.As one can see from the above analysis that, prima facie it cannot be denied in this matter the Husband has inevitably left some ties to Hong Kong. Mr. Yim has in fact conceded, quite sensibly in my view, in the course of arguing the issue of substantial connection, that in the particular circumstances of this case, it is clear that the Husband has ‘a’ connection with Hong Kong, just not a ‘substantial’ one. To me, it is the level of this connection which is the central question – whether it is residual, substantial, or so strong that it indicates on a balance of probabilities that Hong Kong remains the permanent place the Husband will reside indefinitely. 43.For the reasons stated above I come to the view that the Husband was domiciled in Canada by 24 August 2021, the date of the Petition. I find that by such date, the Husband has not merely stated his settled intent but has acted according to the same, to settle in Canada. In reaching my findings here I have not placed any excessive weight on the simple fact that the Husband was not physically present in Hong Kong as I accept the Wife’s contention that this is a case of severance and thus warrant further investigation. I also have not held against the Wife on how she has pleaded her case in the alternative manner as stated earlier – that was an observation regarding tidiness of pleading and case-management efficiency as opposed to any discrimination on merits regarding her case on domicile. Looking at the matter separately and as a whole, I am not satisfied that the Wife has proven to the Court on the balance that the Husband was (still) domiciled in Hong Kong as at the date of the Petition. Accordingly her primary ground under s.3(a) MCO has failed. B. Substantial Connection The Law on Substantial Connection 44.In the recent case of JQ v CLH [2022] 2 HKLRD 632 (at 641 to 645), the Court of Appeal set out the relevant principles as follows:
45.The Court of Appeal in the same case went further to hold that a test based on the requirement of ‘exceptionality’ is not useful and each case must be looked at on its own facts:
The Pleaded Case 46.The Wife has pleaded in the Petition 5 grounds, as I have set out earlier, and therefore as a matter of pleading, her affirmation evidence ought to be considered only in the context of fitting into those grounds and those grounds alone. This is in accordance with rule 9(9) of the Matrimonial Causes Rules, Cap. 179A as well as demonstrated in CN v YTW [2020] HKFC 146. 47.Mr. Tam has in his skeleton submission listed out the evidence the Wife relies upon in establishing the Husband’s substantial connection and I shall gratefully adopt them here:
48.Mr. Yim in his skeleton submission focused on each of the Wife’s pleaded ground and drew my attention to the following oppositions which I have summarised here:
Discussion on Substantial Connection 49.I shall not repeat the facts discussed under the issue of domicile above insofar as they are applicable to the issue of substantial connection. To state the obvious to begin with, one of the major differences between domicile and substantial connection is that while a person can only have one domicile at a time, a person may have substantial connections with more than one, or multiple countries. 50.In applying the above legal principles to the facts, I have reminded myself that while this is a well-trodden area in law it is on the other hand factually highly sensitive and one should not over-interpret the semantics of what is ‘substantial’ but rather to try to put real and practical meaning to it, bearing in mind the family context and purpose as a focus – albeit not the only focus – of inquiry. 51.I must also say here that, in this matter, it is somewhat tempting to take into account COVID-19 circumstances as exceptional, where the Wife explains, amongst other things, the absence of the Husband in Hong Kong at the material time was pandemic related. In my view, much has been said in recent case law about the changes COVID-19 has brought onto the world and that what we had once perceived as exceptional and one-off at its inception, fast-forward only some three years to present, many have now come to terms with their living pattern being indefinitely affected by the very same pandemic. Indeed this is but one example of what could theoretically be branded as exceptional and there could well be many other things. I think a better course to take is, in line with the Court of Appeal’s views expressed in JQ v CLH (supra.), to refrain from being drawn into such a debate as to what amounts to exceptional in a particular case but rather, to take into consideration all relevant factors in a holistic manner. Husband’s Substantial Connection 52.Naturally, one should deal with the Husband’s substantial connection first. To put into context of this case, as the Husband is found to be domiciled in Canada and yet has admitted to have ‘a’ connection with Hong Kong, the following discussion shall focus on (i) the nature of the connection; and equally importantly (ii) the context and purpose of the connection. Practical Meaning 53.Of the grounds/evidence relied upon by the Wife, since the burden of proof is on her, I find that much emphasis was put by Mr. Tam from the points listed above and orally supplemented at the hearing on the financial dealings of the Husband, i.e. ground (3)(v) (and part of ground (3)(iv)) of the Petition. Perhaps notwithstanding it was pleaded as his last ground the Wife viewed it as her strongest point, namely despite his physical presence with the Children in Canada the Husband remained a permanent resident, tax payer, bank account user, insurance holder, salary receiver and MPF contributor in Hong Kong and has still chosen to continue with such a pattern since his departure, be it as at the date of the Petition or post-petition till present. In the course of these submissions I did ask a few times how these points can be put in the context of the family and it seems despite the admirable efforts of Mr. Tam I was not given a direct answer. 54.While family context and purpose is not the only necessary focus, the lack of it on the other hand would be something that I must be alerted to. Even by investigating the bank statements as invited, they cannot prove on the balance that the Husband was/is financially relying on his financial dealings in Hong Kong for family related expenses in Canada. A lack of such a connector leads me to view that while the Wife can have her say on how the financial affairs of the Husband could be better managed, the Husband is at liberty to arrange his own finance as of right and the Court should not slip into becoming his money manager to comment on, for example, why he would continue to engage an insurance agent in Hong Kong and to use the address of the latter as correspondence address; or that he should cease receiving salary in Hong Kong for tax purposes now that he is in Canada (as the Wife did in fact contended these points). 55.To conclude on the Wife’s contention on the Husband’s business connections in Hong Kong, it is my view that in the circumstances of this case where it is a case of departure/severance, the financial ties left behind by the Husband are not sufficient for me to put any real meaning to them which would favour the Wife in establishing such connections being a substantial one. To me, the Husband in this particular case is a person with a background related to the PRC, Russia, Hong Kong and Canada, it would not be seen as unnatural or artificial for him to have assets/financial dealings internationally, be it in these particular countries or elsewhere. As the Wife has said it herself the business nature of MHKCL and SK Company are similar and therefore I do not find it odd in such circumstances that the Husband did not remove his financial connections with Hong Kong, and therefore the same cannot be practically seen as his substantial connection with Hong Kong. Ground (3)(v) (and part of ground (3)(iv)) must fail as a result. 56.By looking at her other grounds, namely ground (3)(i) to (iv) together, they can be understood as emphasising on the alleged family life in Hong Kong between 2013 and 2019. Of those concerning the Husband’s substantial connection would be ground (3)(i) and (ii), as the other points relate to the Wife’s substantial connection which I will return to later. 57.It is accepted that these grounds are family focused but the gap the Wife is tasked to fill here is this. Putting these grounds to the highest, they only prove the state of affairs prior to departure, with a time gap of 1 year and 7 months (or 19.5 months to be more precise) prior to the date of Petition. The Wife used the word ‘only’ to describe this time gap, and invited the Court to compare it with the 7-year period the family stayed in Hong Kong. With respect I cannot agree this to be a fair comparison. Again, trying to be real and practical, in this 19.5-month gap, which in my view is not a short period of time, the Children were uprooted and being settling in Canada, in local schools, with the Husband being their primary carer. A number of photos were exhibited showing an integrated lifestyle in Canada with the Children enjoying team sports activities such as ice hockey and gymnastics with the Husband showing support. There is also evidence that the Wife would exercise continuous electronic access to the Children. Seen from this light, the Husband has indeed, as at the date of Petition, provided a new family life for himself and the Children with its centre no doubt being in Canada. I did invite the Wife to take me to any exhibits in support of the content in her affirmation that the Children were meant to travel to Canada only for primary school education purpose and would return to Hong Kong upon completion of the same. I was informed that what was stated in her affirmation in this regard would be the only evidence. 58.To conclude here, I find that ground (3)(i) and (ii) insofar as they related to the Husband, taken to their highest, are not sufficient to satisfy the Court that the Husband thereby would have a substantial connection with Hong Kong by reason of the family life he once conducted in Hong Kong prior to departure. 59.As such, all the grounds relied upon by the Wife insofar as the Husband’s substantial connection with Hong Kong is concerned have failed. The Wife’s Substantial Connection 60.This relates to ground (3)(i), (ii), (iii) and the other part of (iv) insofar as they relate to the Wife. I shall deal with them together below. 61.The long and short of these grounds in my view comes down to one real proposition, namely that the Wife did participate and was a part of the marital family life in Hong Kong and not only was she considered as a part of the family, she in fact resided, albeit sporadically, at the residences she and the Husband together rented between 2013 and 2019; and therefore, the centre of the family (of 4) was in Hong Kong even post-departure and more importantly, as at the date of the Petition. 62.Assuming for a moment I accept the Wife’s contention that she was part of the family despite her travel pattern during the material times and there was indeed a family life, my understanding then is that the Wife’s strongest point here would be that Hong Kong, not the PRC nor Canada, nor anywhere else, was the only place where marital family life was conducted, and therefore this is the substantial connection. This point was raised indeed by Mr. Tam at the hearing. 63.At first it did appear that there is some force in this argument, especially when the Wife has exhibited a large number of photos (over 200 at least) spanning over the years of the Children’s lives. However, upon a more detailed examination of the evidence, including the photos and others, while I can see the Wife in some of the photos spending quality times with the Children, I must say I am unable to find one photo of the alleged family of 4 with both parties and the Children, let alone in Hong Kong. Nor are these photos clear as to the location where they were taken as many were taken indoor. Giving the Wife the benefit of the doubt here, I can only at most accept she has been in and out of the Children’s lives between 2013 and 2019 in Hong Kong despite the photos do not even convincingly depict the same; but I am afraid the evidence falls short to substantiate what she has pleaded in essence about having conducted a family life with the Husband and the Children in Hong Kong. In my view, the more likely truth from the evidence before me is that the Children had been spending time with their parents but sadly only separately as opposed to have conducted a harmonious family life all together. My finding is consistent with the other evidence of the Wife in telling the Court that, for example, she would avoid confrontation with the Husband and thereby kept her overnight stays to a minimal. 64.Following from the above, when it was subsequently both parties’ intention to end the marriage since, as at the date of the Petition, not only the Husband but the Wife who had by her very act in presenting the Petition had also asked for the marriage to be dissolved, it then becomes obvious there would be no more marital family life in any event. So it would be quite unfair to compare Canada to Hong Kong in this respect to say no marital family life was ever conducted in Canada when it was virtually impossible to do so. 65.However, the Wife’s case on her own substantial connection faces further problems. In my view one real concern is that the Wife herself has not travelled to Hong Kong since January 2020 despite pleading the centre of the family was in Hong Kong. Her explanation is that since the Children had gone to Canada she had thereby lost all meaningful purposes to come to Hong Kong. Further, my earlier analysis was premised on an assumption that I am satisfied with her travel pattern, for ease of discussion. On the evidence before me, I am in fact of the view that the Wife’s frequency and duration of travel over the relevant pre-petition period were akin to the ‘fly in’ and ‘fly out’ transitory nature as described in ZC v CN (supra., at §9.4). 66.For the reasons above, the grounds relied upon by the Wife insofar as establishing her own substantial connection are concerned, have also failed. CONCLUSION ON JURISDICTION 67.All in all, I am not satisfied the Wife has proven on the balance of probabilities that the Hong Kong Courts have jurisdiction over the Petition and accordingly the Petition is dismissed for want of jurisdiction. C. Forum non conveniens 68.In the event I am wrong in my conclusion on jurisdiction above, I now turn to consider the alternative relief sought by the Husband in the Jurisdiction Summons, namely to stay these proceedings on the ground of forum non-conveniens. Specifically, the Husbands prays that the Luohu Court, not the Hong Kong Courts, is the natural and appropriate forum. The Law on forum non-conveniens 69.The House of Lords decision in Spiliada Maritime Corporation v Cansulex Ltd (The Spiliada) [1987] AC 460 has been adopted by the Court of Final Appeal in SPH v SA (2014) 17 HKCFAR 364 and the Spiliada test in the context of matrimonial proceedings is stated to be (at §51):
70.Both parties have applied the Spiliada test in their respective submissions and I shall also be guided by the same. The Husband’s Case 71.When it comes to arguments on forum, the burden shifts to the Husband and Mr. Yim was quick to point out that in this case, there cannot be any dispute the Luohu Court is an available forum. This is not challenged by the Wife. 72.The Husband also highlighted the following points:
The Wife’s Case 73.The Wife’s contention that Hong Kong would be the more appropriate forum (than the Luohu Court) is in gist as follows :
Discussion on forum – Stage 1 74.In applying stage 1 of the Spiliada test, the Court has to identify the most appropriate forum for the trial of the issues. Clearly in divorce context, the issues would invariably be the main suit, children, and finance matters. It appears to me that by their respective divorce proceedings commenced in the PRC and Hong Kong, the parties do not dispute their marriage has broken down irretrievably. Therefore, the focus would be on children and finance matters. 75.Firstly regarding children matters, while the Wife in the Petition did seek custody care and control of the Children, it was not specified as to the intended location she would want to care for them. However, from her Form E filed on 15 November 2021, she has specifically listed out a range of proposed orders (under Part 6.1 therein) which, inter alia, included an order for leave for the Children to live in Shenzhen[14]. To me, coupled with the fact that she had remained in Shenzhen and not travelled to Hong Kong since January 2020, it certainly appears likely that she would want to remain there and have the Children settled in Shenzhen also should she be granted care and control. On the other hand, should the Husband be granted care and control of the Children, it is clear from the evidence that he will seek to remain in Canada. This perhaps brings about an obvious and relevant point which ought to be stated here for clarity, namely that neither party, at least from the evidence before me, want the Children to live in Hong Kong as a result of their divorce. 76.The Court of Appeal held in RI v SSH [2010] 4 HKC 588 (at 596F to H) that the provision for the children is “inextricably tied up with the distribution of the matrimonial assets” and that it would be “a waste of the parties’ resources for litigation to be conducted on two fronts”. Seen from this light, having the divorce matters litigated in the Luohu Court would avoid splitting up the Children and finance matters on two fronts; on the other hand, even if solely focusing on children matters, practically speaking if the disputes are to be adjudicated in Hong Kong, it would mean that potentially both parties would be seeking an order for relocation to PRC and Canada respectively, and thereby the function of the local social welfare department, for example, would be seriously hindered in carrying out any meaningful investigation to assist the Hong Kong Courts especially when both parents and the Children are all outside Hong Kong. Such state of affairs would, in my view be quite unnatural, and inconvenient for the Family Court to deal with because in reality, there are not two but three fronts in this matter in terms of locality of relevant persons and assets. 77.Secondly for financial matters, I first turn to deal with the landed properties. There are altogether 4 landed properties as disclosed by the parties and they are all situated in the PRC :
78.With documentary evidence in support, the Husband pointed out that in relation to the Guilin Property and the Zhongxing Garden Property, there are likely to be disputed claims and therefore it would be better to have these resolved in the PRC by reason that they are PRC assets. In short, the Husband says the Guilin Property was exclusively funded by the late father of the Husband in 2007 despite it being registered under the name of the Husband[15]. As to the Zhongxing Garden Property, it used to be the staff quarters of the late father of the Husband who worked in a PRC company named ZCL and it is the Husband’s contention that shortly before his demise, the Husband’s father transferred his interest to his wife, namely the mother of the Husband[16]. The father of the Husband passed away on 5 September 2016. 79.The Husband has no dispute as to his ownership to the DMS Property. The Wife also confirms she does not dispute ownership of the 1502 Property. The Wife pointed out that regarding the alleged disputed claims, firstly the burden is on the Husband to show the ownership of any such properties being different from the legal titles. Secondly, I think the Wife made a valid point that insofar as these aforesaid disputes are concerned, the third party related would be the Husband’s mother whom, by the Husband’s own evidence, is now residing in Canada. Thus it would not be more convenient to have the proceedings conducted in the PRC than in Hong Kong insofar as witnesses are concerned in this respect. 80.Further and related to the above is the estate of the late father of the Husband. From documents highlighted to me by the parties, the relevant PRC probate document stated that while the Husband (and his sister) would have been entitled to a share as the lawful son (and daughter) of the deceased under the laws thereof, both the Husband and his sister had renounced their rights to the estate of their late father, thereby permitting the entire estate to be succeeded by the lawful wife of the deceased, namely the mother of the Husband alone. To this, while the Wife confirms she does not challenge the authenticity of these probate documents, she cannot help but notices that the date of the probate document was 7 December 2020. The Wife asked the rhetorical question as to why choose to execute the probate document some 4 years after his father’s death, and more importantly, some 4 months after the Husband had commenced the 1st PRC Proceedings on 31 July 2020. 81.Aside from landed properties and probate, the Husband also drew my attention in relation to some money transactions from the mother of the Husband to the Husband, where in gist the Husband says the nature of which are loans, and as the transactions took place in the PRC the issue would be PRC centric. To this the Wife runs the same point as above in reply, namely the mother herself is now located in Canada, it would not be any more convenient to have these issues heard in the PRC as opposed to Hong Kong. 82.In my view, regarding the potential financial matters to be determined consequential to the divorce and considering them in the round, I would place more weight towards the fact that the assets, and not the personnel, involved are situated in the PRC. This is quite different from children matters where the location of the Children and the parties and their respective status quo thereof would carry a more significant weight, for obvious reasons. There is no evidence to suggest the relevant persons could not or would not testify for the purpose of dealing with the potential financial disputes in the Luohu Court and the Husband has in fact at all material times instructed PRC lawyers to handle the same so far. The Wife’s allegations against the probate matters of the late father of the Husband, however persuasive they may appear to be, only goes to show the possibility of further and more complex disputes arising from financial disputes of this divorce, but the fact that the probate was administered in the PRC remains a point which will not assist the Wife’s case in the context of the present matter. 83.From the above, I find that the Luohu Court is the more appropriate forum in the circumstances. Personal or Juridical Advantage – Stage 2 84.This is the stage 2 of the Spiliada test and it is not disputed that the burden shifts to the Wife to demonstrate deprivation of a legitimate personal or juridical advantage for the matter to be adjudicated in the Luohu Court. 85.To this, the Wife takes up the point about discovery procedures in the PRC not being as extensive as Hong Kong and thereby creating a juridical disadvantage for her. In particular, she contends that there is no specific discovery or interrogatories procedures under the PRC system, and that the PRC Court has no jurisdiction to deal with assets outside the PRC. She says the Husband’s financial disclosures so far is suspicious to say the least and he has failed to show how he sustains his life in Canada. At the hearing the Husband raised, and not disputed by the Wife, that insofar as the Wife’s expert evidence on PRC law is concerned, there has been no mention about the discovery procedures under the relevant PRC law being inferior to those in Hong Kong. In other words, the Wife’s contentions are not supported by expert evidence and can amount to bare allegations only. 86.The Husband went further than this and brought to the attention of the Court that according to the expert evidence produced by the Husband, there are various recourse to deal with non-disclosure by a divorcing party in PRC divorce proceedings, including a reduction to or a bar from the distribution of the family assets. The Husband’s PRC legal opinion also mentioned the relatively new Civil Code of the People’s Republic of China which became effective on 1 January 2021 in demonstrating a range of applicable divorce procedures. 87.The Husband also submits that practically, there is now the recently effective Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance, Cap. 639 which can facilitate the enforcement of financial orders made in the PRC to be registered in Hong Kong, and in addition, the availability of Part IIA Matrimonial Proceedings and Property Ordinance is also an alternative safeguard in this respect. While I appreciate the practical value of these Ordinances, I do not consider them as relevant in my analysis of this issue. 88.In my view, I can appreciate the Wife’s contention stemming from the comments made in Spilida (at 482F to H) in relation to discovery systems in various jurisdictions and that each of these systems no doubt would have its virtues and vices. The Wife also relies on ZJW v SY (Substantial connection; Jurisdiction on stay of proceedings: PRC) [2016] HKFLR 427 (at 460 to 461, and 464B to D) to say that the lack of disclosure by the husband in that case is similar to the Husband here in that it gives the Wife no confidence in doing justice if the proceedings were to be conducted in the PRC jurisdiction which will then deprive her rights and thereby causes her grave injustice. However, it was pointed out by the Husband that (1) ZJW was a 2016 decision and as his PRC legal opinion has covered, the applicable law and procedure in the PRC have further evolved since; and (2) the contention of the wife in ZJW was fully supported by a PRC legal opinion in identifying significant weaknesses in the (then) discovery procedures in the PRC justice system (at 460A to C). Here, this is exactly what is lacking from the Wife’s expert evidence. 89.The Wife further took me to consider the list of documents filed by the Husband in the 2nd PRC Proceedings[17] and invited me to note that the companies disclosed therein are all Canadian and Hong Kong companies, as opposed to PRC companies. To this, the Husband considers the same to be a good example to show that the PRC proceedings do not limit to dealing with PRC assets but assets worldwide. I agree to the Husband’s observation and I also note that the list of documents has also displayed various page numbers references supporting documents to the items on the list. This also goes to show that, contrary to the complaint of the Wife against serious non-disclosure on the part of the Husband, the Husband has, on the strength of this document, provided supporting documents to each of his worldwide assets disclosed therein. 90.At the hearing I also enquired with the Wife about the point where she had chosen to defend in the 1st PRC Proceedings, and that only in the 2nd PRC Proceedings she had raised therein, for the first time, jurisdictional challenge vis-à-vis Hong Kong. To this, Mr. Tam fairly put it no further than what the evidence is before the Court and says the Wife was not legally represented in the 1st PRC Proceedings. On the other hand, Mr. Yim wishes to bring home this point by suggesting the very conduct of the Wife submitting to the PRC jurisdiction in the 1st PRC Proceedings is hard evidence to show that she herself must have believed that justice can be done in the PRC Courts. To this, I have some sympathy towards the Wife here and accepts her explanation that at the time of the 1st PRC Proceedings she was acting in person and as such, she may not be aware of the possibility to state her case at once to say Hong Kong, in her view, should be the place for litigation instead. However, I must remind myself that the Wife, on the other hand, in both the 1st and 2nd PRC Proceedings, has the wisdom to challenge jurisdiction at once but only in another sense – as to her residential area; thereby causing the PRC Courts twice to have to adjudicate the matter firstly in the Yantian Court, and following her oppositions, then transferred to the Luohu Court. 91.Having considered all submissions made by the parties and evidence available, I am not satisfied that the Wife has discharged her burden in proving there would be any personal or juridical advantage which the Wife would be deprived of if the matter is being proceeded in the Luohu Court. Accordingly, no balancing exercise under stage 3 of the Spiliada test is required. 92.For the reasons aforesaid, if it were necessary for me to consider the Husband’s application for stay on the ground of forum non conveniens, I would have allowed his application in ruling that, all circumstances considered, the Luohu Court would be the appropriate forum. Application of the Wife to adduce New Evidence post Hearing Admissibility 93.I now return to deal with the new evidence matter. On 22 September 2022 the Wife wrote to the Court enclosing a document purported to be a ruling of the Luohu Court dated 20 September 2022, in dismissing the 2nd PRC Proceedings. (“the PRC Ruling”) The Husband responded by a letter to the Court dated 26 September 2022 objecting to the manner of which the Wife has attempted to adduce further evidence after closing of the same, as well as its contents. By the Court’s memo dated 30 September 2022, it was inter alia directed that if so advised, the Wife is to take out a formal application within 7 days and that the application, if taken out, would be dealt with by paper disposal with its ruling to be dealt with in this Judgment. The Wife duly filed a Summons on 7 October 2022 for the inclusion of the PRC Ruling by reason of its relevance and importance to the issue of jurisdiction and/or forum. 94.The parties have complied with the relevant directions and I now have both parties’ respective stance over the PRC Ruling, as well as the issue of costs. 95.Without further lengthening this Decision by repeating all the legal arguments that have been put forward by the parties, all I want to say about this new document is as follows: (1) there is no dispute that admitting post-hearing evidence lies within the exercise of the Court’s discretionary power; (2) in my view, albeit neither party nor the Court had asked for such an update at the conclusion of the substantive hearing, now that the PRC Ruling became available, I could place no blame on the Wife for wanting to inform this Court on the same after the closure of evidence given this is not a document that could have been placed before the Court at the hearing; (3) having read the PRC Ruling, I am of the view that it is indeed a document relevant to the Jurisdiction Summons, especially to the issue of forum, which would have entered into my consideration if the same was available at the time of the hearing; and (4) while the Husband has referred me to the well-known principles under Ladd v Marshall [1954] 1 WLR 1489 and submits that the conditions therein are not met when applied to the present situation, I am more inclined to conclude, and I so do here, that the interest of justice is better served by accepting than rejecting the consideration of the PRC Ruling, in having adopted a multi-factorial approach as advocated by the Wife in balancing all the relevant factors : see TYT v TLH [2020] HKFLR 553 (at 568H to 570B). 96.Accordingly, I make an order in terms of her Summons taken out on 7 October 2022 and consequently to include the PRC Ruling as part of the evidence and have it marked ‘MFI-1’, with costs in the cause of the Jurisdiction Summons. Since I have already invited parties to make submissions on costs to this Summons and have considered the same, this will be a final costs order. Further Discussion 97.In fully considering this new piece of evidence, I note that the Wife asked the Luohu Court for a variety of reliefs including (i) to dismiss the 2nd PRC Proceedings based on re-litigation in Hong Kong; (ii) custody of the Children as well as children maintenance based on standard of living in Shenzhen; and (iii) a reduction or zero distribution of family assets to the Husband by reason of his financial non-disclosures. 98.In arriving at its ruling, the Luohu Court stated inter alia that the Husband has already ‘answered’ to the Petition (‘原告已在香港法院應訴答辯’). With the greatest respect, this information is incorrect in the eyes of this Court and both parties acknowledged the same in their submissions. It is most unfortunate that the Luohu Court has come to an understanding different from not only this Court’s understanding, but more importantly, both parties’ common understanding in this respect. Further, it is noted from the PRC Ruling that the Luohu Court relied solely on the above (mis)understanding in dismissing the 2nd PRC Proceedings. This Court will not speculate as to the reason why the Luohu Court was so mis-informed about the Husband’s correct legal status regarding jurisdiction in these proceedings, save that it is clear to me that in such circumstances, justice demands some form of clarification to the Luohu Court. 99.The PRC Ruling did not discuss on the other reliefs sought by the Wife. However, in considering this document, I find that when the Wife is seeking children maintenance as per the average living standard of Shenzhen[18], this is a further piece of evidence in addition to her Form E that I consider to only add to reinforce my earlier findings that the Wife has been as at the date of the Petition, and is still seeking to care for the Children upon divorce in Shenzhen, not Hong Kong. 100.Further, the Wife herself has now asked for an appropriate financial relief in the event the Luohu Court finds the Husband to be less than forthcoming in his financial disclosures, in seeking to reduce or even dismiss any financial claims the Husband would be otherwise entitled to, in the distribution of family assets. This is exactly what the Husband was litigating about earlier and I shall not repeat, save that I should say this piece of new evidence in fact further reinforces my findings above on forum non conveniens in a consistent manner. 101.Further, I am of the view that given my findings in this Decision, and notwithstanding the 2nd PRC Proceedings is currently dismissed by the PRC Ruling, it appears to me that the Husband would be at liberty to seek further recourse in the PRC Courts either by reviewing/appealing the PRC Ruling and/or to commence a new set of proceedings with the benefit of now having the ruling of the Hong Kong Courts on jurisdiction by this Decision. In other words, it remains the case that the Luohu Court is an available forum and it has not been contended otherwise by the Wife. 102.For the reasons above, and having fully considered the PRC Ruling, my findings earlier in this Decision in relation to the jurisdictional matters remain the same. JURISDICTION SUMMONS & ORDER 103.The Petition filed on 24 August 2021 is hereby dismissed for want of jurisdiction. At present I do not see why costs should not follow the event and I make a costs order nisi that the Wife shall pay the Husband’s costs of these proceedings, including the costs of the Jurisdiction Summons and the Summons dated 7 October 2022, with certificate for counsel, to be taxed if not agreed. This costs order nisi shall become absolute in the absence of any application to vary within 14 days. II. MPS SUMMONS & ORDER 104.By reason of my various findings above, there is no need for me to go into the MPS Summons. The Court has no jurisdiction to deal with the same and for that reason the Wife’s MPS Summons is dismissed. At present I do not see why costs should not follow the event and I make a costs order nisi that the Wife shall pay the Husband’s costs of the MPS Summons, with certificate for counsel, to be taxed if not agreed. This costs order nisi shall become absolute in the absence of any application to vary within 14 days. 105.I thank both counsel for their helpful and comprehensive assistance in these matters.
Mr. Tasman Tam, Counsel instructed by Messrs Chin & Associates for the Petitioner. Mr. Eugene Yim, Counsel instructed by Messrs Tony Kan & Co. for the Respondent. [1] There was one entry between 30 April 2017 and 5 May 2017 whereby the Wife travelled by passport, which is not reflected in the above table. [2] B/119/27. [3] B/106/28. [4] B/323. [5] B/321. [6] B/394-5. [7] B/702. [8] B/942. [9] B/898. [10] B/215-220. [11] B/227-238. [12] B/704: ‘…且由於疫情關係，無法頻繁返回香港。’ [13] B/349. [14] B/28. [15] B/409. [16] B/181. [17] B/436 [18] ‘被告要求原告每月支付撫養費（撫養費用安深圳平均標準且參照孩子日常生活水平支付）。’ | ||||||||||||||||||||||||||||||||||||||
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