Fky v. Jja

FCMC 10722/2020

[2023] HKFC 200

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 10722 OF 2020

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J U D G M E N T
(Stay of Proceedings, Forum Non Conveniens)

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This Application

1.This is a Hearing of the Respondent Husband’s (“H”) Summons dated 17 June 2022 for a stay of the Petitioner Wife’s (“W”) petition for divorce filed on 18 November 2020.  H argues that Germany is the more appropriate forum to determine the parties’ divorce proceedings. 

2.Furthermore, H seeks:

a.  All Orders made in these proceedings be set aside

b.  Decree Nisi made be set aside

c.  Time for H to file his Acknowledgement of Service within 14 days after the Decree Nisi has been set aside

d.  Interim Stay of Proceedings

3.W opposes H’s application.

Parties background

4.H was born in Germany in August 1971, he is now aged 52.  He runs his own business which started in 2010.

5.W was born in Hong Kong in July 1980, she is now aged 43.  W was working in Germany from October 2015 to October 2018.

6.The parties met in July 2017, and were married in December 2017.  They lived in Germany as a couple until W left Germany in December 2019.

7.N, the child of the family was born in June 2018, he is now aged 5.

8.W left Germany for Hong Kong with N in December 2019 and has lived here since.  H says it was abduction, but W says she has his consent to bring N to Hong Kong.  

History of Proceedings in Hong Kong

9.W petitioned for divorce on 18 November 2020. Decree Nisi was pronounced on 15 February 2022.

10.In compliance with an Order dated 10 March 2022, W filed her Form E on 21 April 2022; H did not do so.

11.On 24 June 2022, the return day of this Summons, this Court ordered an interim stay of these proceedings, and gave direction for parties to file affidavits and obtain expert opinions.

History of Proceedings in Germany

12.There have been 4 proceedings in Germany, one initiated by W, and three by the H.

Custody Application 20 March 2020 by the W

13.The timeline shows that this took place shortly after W’s return to Hong Kong. 

14.This is her application for the transfer of N’s custody to herself.  In this context, M is asking for the German court to allow her to determine N’s habitual residence.

15.H filed a counterclaim on 6 June 2020, apparently after the two Contact Applications mentioned below.

16.A hearing was set down on 5 May 2021.  W says she intended to appear but later informed in February 2021 that she could not do so due to covid restrictions for travel to Germany. The said hearing was attended by W’s German lawyer SR, and it was on that occasion that the May 2021 Attempted Service (hereinafter elaborated) took place. The German Court found that the decision for residence rights cannot be made without first hearing from W.

17.In May 2022, the German Court requested W to indicate her availability to appear for the hearing, she informed the court that she could participate via zoom.

18.H has made a counterclaim, this application is on-going unless and until both parties withdraw their respective motions. 

19.H argues that W has submitted to the German jurisdiction by commencing these proceedings.

20.W explains her rationale for initiating this application in her Second Affirmation.  She says that this was done out of concern from H’s threat to initiate criminal proceedings and her fear that were this to happen, she would be arrested when she sets foot in Germany.  She also says that H’s further threat of legal proceedings also forced her hands to protect N and herself.

Interim Contact Application on 24 March 2020 by H

21.On 25 March 2020, the German Court dismissed H’s application as it lacked merit.  The German Court was of the view that there was no urgent need, it also pointed out that H can issue Hague proceedings if he wants N returned.

22.H never took out any Hague proceedings.

Contact Application on 26 April 2020 by H

23.There were two requests for stay on 26 April 2021 and 5 June 2021 respectively, notably by the H.  It is assumed that these proceedings are currently on hold.

Divorce Petition on 19 May 2020 by H

24.H’s divorce proceeding includes an application for the German Court to determine N’s residence.

25.W’s lawyer in Germany SR obtained the German divorce case number from the German Court in October 2020, and then informed the Court in November 2020 that she does not represent W in the German divorce proceedings.

26.In the meantime, W has filed her Hong Kong divorce papers in November 2020, which was served in accordance with the Hague Convention on 28 January 2021.

27.On 28 June 2021, HKSAR Chief Secretary for Administration’s Office informed H that they could not effect service of his German divorce papers as the wordings in the Petition require amendments.  On 3 March 2022, the German Court still stated that service had not been carried out.  H said his lawyers in Germany dealt with the queries raised by the Central Authority in July 2022.  It was not until 12 August 2022 before W collected the German divorce papers from the Bailiff in Hong Kong.  

28.While H contends that he filed his German divorce prior to the W’s Hong Kong divorce, and his lawyer Dr H says that the W’s German counsel has been informed of this German divorce in November 2020; it is clear that no proper service on the W was done until August 2022, well after W’s January 2021 Service and September 2021 Service.

29.W’s counsel also says that H has not yet provided a certificate of successful service as at the time of the hearing.

H’s case

30.H says that W has abducted N to Hong Kong in December 2019.  He says that he gave her a written consent for going through immigration, which reads:

“I, [H’s name and passport number], the father of [N and passport number], consent to N’s travel out of Germany on 1 December 2019, and stay in Hong Kong.”

H says that his english is not good and when he said “stay” he thought he meant holiday.

31.In his counsel’s submission, it says that W’s wrongful retention of N in HK from 14 December 2019 is “relevant to the question of forum as Hong Kong would never have been a possible forum for divorce proceedings if the W had not taken N from his habitual residence of Germany without the H’s consent.”

32.H says that W has substantial connection in Germany and she has submitted to jurisdiction in Germany with her custody application in March 2020.

33.As elaborated above, H’s case maintains, even in his opening submission, that he has not been properly served with the Hong Kong divorce proceedings, and that he has no knowledge until 2 June 2022.

W’s Case

34.On her return to Hong Kong, she and N have moved in to live with her parents. N is attending school, she has found work, and both have settled down to life here.  She argues that she and N now have their habitual residence here since their return to Hong Kong.

35.W says that H has the onus to prove his case and he has failed to demonstrate that Hong Kong is not the appropriate forum, nor show that Germany is a distinctly more appropriate jurisdiction.

36.She also says that if proceedings were to take place in Germany, she would suffer from legitimate personal or juridical disadvantages.

37.She challenges H’s expert report which was written by his own lawyer, for lack of independence.  

Some Important Issues

38.There are three important issues to cover which should be addressed before analysing the substantive arguments for this application:

a.  Service of Hong Kong proceedings

b.  Weight to be attached to the expert opinions

c.  Did W submit to jurisdiction in Germany

Service of Hong Kong Proceedings

39.On 18 November 2020, W relied on her HK domicile status to file for divorce in Hong Kong.  She says that H has not challenged the jurisdiction basis of her divorce application.

40.There are two addresses in issue:

a.  The first one being the LKW address, which was a residence purchased by H in February 2019.  H says that his parents now live at this address. 

b.  The second one being the WS address, which was rented by W and which lease was taken over by H since November 2020.  This was for a while where they lived prior to December 2019.

November 2020 Service

41.On 20 November 2020, the divorce documents were served on H by a delivery firm in Germany by insertion into the LKW address letterbox. W produced an affirmation of service of the delivery agent dated 16 June 2021. (“November 2020 Service”).

January 2021 Service

42.On 24 December 2020, W filed a formal request for service via the High Court of Hong Kong in accordance with the Hague Convention of 15 November 1965 on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (“Hague Convention”).  On 28 January 2021, H was served in accordance with the Hague Convention at the LKW address.  This was confirmed by letter from the Central Authority in Germany dated 29 September 2021, and Chief Secretary for Administration responding on behalf of Hong Kong Central Authority dated 26 November 2021. (“January 2021 Service”). 

May 2021 Attempted Service

43.On 5 May 2021, W instructed her solicitor SR to personally deliver the Hong Kong divorce petition to H, this was at the family court in Berlin.  According to SR’s affirmation, H physically ran away from her:

“… I personally tried to hand the sealed envelope to the Respondent in the court room, and I told him in German … (which means “I have mail for you, which is sent by the Hong Kong lawyers of your wife regarding your divorce”). The Respondent replied immediately in German … (which means “I do not accept this”). He then rejected to take the envelope. After a very short chat with his lawyer standing next to him, the Respondent ran out from the court room at a very high speed. I tried to chase after the Respondent and ran to the corridor, but he was no longer to be seen.”

September 2021 Service

44.W instructed her solicitors to arrange for service by the Bailiff Office of Court in LKW, Germany.  The said bailiff service was carried out on 30 September 2021, W produced supporting documents for this service.  According to the W’s expert opinion, this was considered good service under German law.

November 2021 Order re Service

45.On 24 November 2021, DDJ Ho ordered that service of the Petition and accompanying documents by insertion into the letter box of H’s address by the German bailiff be deemed good service.  And that all subsequent documents be served by registered post to either H’s residence or his German lawyers.

46.W further says H has not sought to set aside this Order and it is therefore valid and in effect.

Discussion

47.H says he is not aware of W’s divorce proceedings until June 2022.

48.H says that W has served at the LKW address where his parents live and is the wrong address as he lives at the WS address.  He says that W is aware that he has taken over her lease at the WS address.

49.W says that H was registered at the LKW address, and also his business uses LKW address as the correspondence address.  In any event, she has provided both addresses to the Central Authority, she says that both the Central Authority and the Bailiff deemed service at the LKW as good service.

50.He says his parents live at the LKW address, despite the November 2020 Service not being the proper mode of service in accordance with the Hague Convention, evidence shows that the documents were served at that address.  It is H’s evidence that he has an accountant / secretary who opens and takes care of any mail which is related to business. Even if the divorce proceedings documents are not related to his business, it is inconceivable that they were not brought to the H’s attention.

51.W says that the H’s lawyer did not say that the documents were served at the wrong address, but only that it was not done in accordance with the Hague Convention.

52.H’s own lawyer Dr H produced an expert opinion wherein he says at §§32-33:

“32. Neither the Central Authority for the states of Bradenburg nor Berlin have been involved in the Service.

33. The Central Authority pursuant to the Hague Service Convention the German domestic law, the ZHRO (Rechtshilfeordnung in Zivilsachen) for Brandenburg is the Ministry of Justice in Potsdam …..”  

53.The letterhead of the above-mentioned letter from the Central Authority in Germany dated 29 September 2021 states “Land Brandenburg … Ministerium der Justiz, Heinrich-Mann-Allee 107, 14473 Potsdam”. Attached thereto is also a Certificate of Service dated 2 February 2021 issued under the stamp of Land Brandenburg, Ministerium der Justiz.

54.It therefore appears Dr H is incorrect.  Dr H report was dated 29/30 September 2022, he made reference to the bailiff service of September 2021; it is therefore quite baffling why the January 2021 Service was not brought to his attention. 

55.W says that in accordance with H’s affidavit dated July 2022, he admits that documents were served by post to his German attorney, and in H’s second affidavit filed on 14 December 2022, he says the papers were brought to his attention because they were emailed to his lawyer Dr H.  On both occasions, H has omitted the important detail of when Dr H receives the said mail and email.  In an issue where dates are of importance, it is inconceivable that these were not mentioned in the H’s affidavits on both occasions, despite he has legal representation when his affidavits are prepared.  

56.H argues that W has served at the wrong address, that it should not go to the LKW address but the WS address.  W says that both addresses were provided to the Central Authority and good service was acknowledged. Nor did H’s lawyer / expert opinion challenge the address to which the papers were served. 

57.H has also tried to contend that he should have been asked to sign for the papers after receiving from the Bailiff whereupon only then would it be deemed reliable service.  I refer to an affirmation of CAP put forward by the W.  CAP is a German lawyer specialising inter alia, in civil litigation; his evidence was submitted in support of the W’s application for substituted service. In his affirmation dated 16 November 2021, he confirms that:

“3. All writs in a German civil procedure, especially the initial claim, are served on the parties involved by the court (166-190, 271 German Civil Procedure Code (“ZPO”)) and such service shall be done personally.  If the recipient cannot be found at their registered address, the writ can be inserted into his letter box or handed to his family or household members, employees etc.

4. Insertion into letter box is in practice the usual mode of service.  The service is carried out by the German postal service, which acts in an administrative capacity, inserts the writ in the respondent’s letter box and issues a service protocol.  The service protocol provides evidence to the court that the claim has been duly served to the respondent.  Whether the respondent actually willingly takes notice of the contents of the served envelope is then irrelevant. What is relevant is the possibility of the respondent taking notice.”

58.It therefore appears that the September 2021 service is also good service in accordance with German law as it involved the Court bailiff and was inserted into the mailbox of the LKW address. Evidence of this service dated 5 October 2021 was exhibited to W’s 2^nd Affirmation.

59.W submits that H was evading service.  I must admit running away at the May 2021 hearing did suggest this.  The timing is telling as he should have known since the January 2021 service; and in any event, he is deemed to have notice and possibly knew the consequence of accepting what SR was handing to him, especially when his German divorce papers has not yet been served on W.

60.H has not put forward any evidence to prove that the January 2021 service is not valid.  It is inconceivable therefore, that H continues to rely on his expert opinion to say that he has not been served.  Nor do I accept that H only knew about the Hong Kong divorce in June 2022.

61.I therefore conclude that W’s divorce Petition and related documents were properly served in accordance with the Hague Convention on 28 January 2021.

Weight to be attached to the Expert Opinions

62.It is W’s case that the expert opinion put forward by H is neither independent nor impartial as it was written by the same lawyer Dr H who also represents him in his divorce proceedings in Germany; and therefore casts doubt on the probative value to be placed on his expert opinion.

63.W’s counsel says the following shows that Dr H works for the H.

a.  Dr H filed H’s divorce proceedings in Germany, this was in May 2020; the date of his expert opinion is 29 September 2022

b.  Dr H issued a letter to the German Court on 30 June 2020 regarding N’s return to Germany

c.  Dr H represented H at the 5 May 2021 hearing for M’s Custody proceedings

d.  H refers to Dr H as his German attorney / lawyer in his 1^st and 2^nd Affirmation

64.There is no dispute that Dr H is acting for H in Germany.  In the §3 of his expert opinion, he states that he represents H in the German proceedings.

65.The principle is clear that an expert opinion which seeks to assist a Judge should be independent and unbiased. 

66.W’s counsel helpfully quoted the case of Maysun Engineering Company Limited v International Education and Academic Exchanges Foundation Company Limited trading as Hong Kong Institute of Technology, [2010] HKCU 2033(unreported, DCCJ 27/2006. September 2010.  I shall first refer to paragraph 28 therein:

“28. Under s.58(1) of the Evidence Ordinance, where a person is called as a witness in civil proceedings, “his opinion on any relevant matter on which he is qualified to give expert evidence” shall be admissible in evidence.  However, the Court retains the discretion to admit expert evidence only if it is relevant, necessary and of probative value, and to be given by a witness proved or admitted to be an expert on the topic.”

67.§31 of the Maysun decision cites principles of the duties of an expert:

31.  Time and again, the courts have stressed the importance of the duties owed by an expert who seeks to give evidence before the Court. The duties of an expert witness were summarized in National Justice Compania Naviera SA v. Prudential Assurance Co. Ltd. ( The Ikarian Reefer) (No. 1) [1993] 2 Lloyd's Rep. 68, and include the following :

"1. Expert evidence presented in the court should be, and be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.

2. Independent assistance should be provided to the court by way of objective unbiased opinion regarding matters within the expertise of the expert. An expert witness in the High Court should never assume the role of advocate.

3. Facts or assumptions upon which the opinion was based should be stated together with material facts which could detract from the concluded opinion.

4. An expert witness should make clear when a question or issue fell outside his expertise."

68.W’s counsel also submitted that Dr H is advancing arguments for H, she refers to Maysun decision at §55 wherein Mimmie Chan J says:

“…an expert witness who seeks to advance arguments for a litigant is a telling sign of the purported witness lack of impartiality and due observance of his overriding duty to the court.”

69.Dr H’s expert opinion addresses the following:

a.  He describes the stages of proceedings of the four actions taken out in Germany

b.  He then said:

“18. The husband has filed his motion for divorce at the German Court prior to the wife.

…

20. The German Divorce Proceeding can only be terminated if the husband withdraws his motion.

21. The wife has not requested the husband to withdraw his motion for divorce.”

c.  Dr H spends a big part of the opinion on the need for W’s divorce to be served in accordance with the Hague Convention.  He then said:

“32. Neither the Central Authority for the states of Brandenburg nor Berlin have been involved in the service

…

34. Neither of those Authorities have been called on by the wife and have therefore not been part of the service.

35. The documents, the Divorce Documents, have therefore not been properly served on the husband under the Hague Service Convention.”

d.  He explains the process of what W has to do to submit to Germany jurisdiction.

e.  He comments that W’s expert opinion misses a lot of correspondences.  This part of the opinion is confusing as it appears that the dates of a number of these letters have been misquoted.

f.  Dr H says that W’s expert opinion with regard to the German custodial laws and laws regarding matrimonial property and division of assets and spousal support and child maintenance are “accurately presented”.

g.  He then comments how much the German proceedings may cost in Germany.  He says the values of family proceedings are determined by the income of both spouses’ income multiplied with a defined factor. 

70.I agree with W’s counsel that Dr H’s expert opinion looks like it is advancing’s H’s case, it reads like a legal submission on H’s behalf.

71.In opting to write this expert opinion for H, I also notice that Dr H’s opinion lacks the following information:

a.  While speaking to the H’s divorce proceedings taken out in May 2020, he did not say much as to what happened between then and until the time SR said she does not represent the W in the German divorce in November 2020.

b.  He did not say when he contacted the Central Authority in Germany to effect service on the W in HK, but only said that he was informed of the refusal of service by HK in June / July 2021.

c.  He said H was informed on 30 July 2021 by District Court Kreuzberg that that the changes required by HK will be done by an interpreter.  Then he said thereafter the amended Petition is “on its way to the wife” but did not say when that took place.

d.  Dr H has not explained the very substantial time gap between July 2021 and the time when the W was served in August 2022.

e.  Dr H made no reference to the January 2021 service at all.

f.  Furthermore and echoing the W’s argument, “Dr H never (deliberately) cites when he received the divorce papers sent by W’s lawyers via email or post.” 

72.I must admit it is very strange that Dr H never mentioned W’s January 2021 service.  This could be because H really never received it, although he is deemed to have been served then; or H knew and did not tell Dr H; or Dr H is aware and omitted to mention this is in his opinion.  W has mentioned as early as her affirmation of 29 June 2021 that her solicitors has filed with the High Court a formal request for service in December 2020. And in the W’s 3^rd Affirmation dated 29 July 2022, she has covered the issue of service in detail with exhibits in support.  Given Dr H’s expert opinion is dated 29 September 2022, it makes no sense that as H’s lawyer, he does not have sight of these Affirmations, or if he did, why W’s version of events was not investigated. 

73.To this point, I make further reference to §35 of the Maysun case:

35.  In Hong Kong Air Cargo Terminals Ltd. v. Commissioner of Rating and Valuation [2004] 2 HKLRD 702, Lam J had the following to say:

"In addition to the overriding duty to provide independent and unbiased assistance to the court, an expert should also ensure that he does not omit to consider material facts which could detract from his concluded opinion and should make clear when a particular question or issue falls outside his expertise.”

Lam, J further commented (at page 709):

"It is not enough that an expert appreciated that he had an overriding duty to the court. Nor is it sufficient that such a witness understand that he had to be comfortable with his evidence and it is to be truthful. He must also understand that he has a duty to ensure his evidence does not omit any relevant matters. As Rogers V-P said in Tang Ping Choi & Another v. Secretary for Transport [2004]2 HKLRD 284 at para 17:

‘ In the second place. many of the problems which have arisen with regard to expert evidence have been caused by the fact that the witnesses have not been frank with the court. In some cases they have given evidence which is half truthful, keeping back knowledge which they knew as experts and which was relevant to the matter in respect of which they were giving evidence.’ "

74.I am of the view that there are omission of material facts, which if included could have led to a different conclusion in the H’s expert opinion. 

75.I am also of the view that where a party’s own lawyer provides an expert report on his behalf, there is already a prima facie concern on conflict.  On this point, the case of Maysun provides further guidance at §§48 – 49.

48.  The key question raised when there is a potential conflict of interests regarding the expert's position is whether the expert's opinion is truly independent and impartial. The general issues concerning conflicts of interest were addressed by the English Court of Appeal in detail in Toth v. Jarman [2006] 4 All ER 1276, the judgment of which states as follows (from paragraph 102):

"Where an expert has a material or significant conflict of interests, the court is likely to decline to act on his evidence, or indeed to give permission for his evidence to be adduced. This means it is important that a party who wishes to call an expert with a potential conflict of interest should disclose details of that conflict at as early a stage in the proceedings as possible… The obligation to disclose the existence of a conflict of interest in our judgment stems from the overriding duty of an expert, to which we have already referred and which is clearly laid down in CPR 35.3, and also from the duty of the parties to help the court to further the overriding objective of dealing with cases justly (CPR 1.3). The court needs to be assisted by information as to any potential conflict of interest so that it can decide for itself whether it should act in reliance on the evidence of that expert.

As already stated, in our judgment, an expert should produce his cv when he provides his report, and that cv should give details of any employment or activity which raises a possible conflict of interest. This may indeed already be best practice.

…The expert should not leave undisclosed any conflict of interest which might bring into question the suitability of his evidence as the basis for the court's decision. The conflict of interest could be of any kind, including a financial interest, a personal connection, or an obligation, for example, as a member or officer of some other body. But ultimately, the question of what conflicts of interest fall within this description is a question for the court, taking into account all the circumstances of the case."

49.  It is therefore clear from the authorities that although the mere fact of the expert being a consultant to a party involved in the litigation does not automatically bar him from acting as an expert for the party, it is for the Court, and not the expert or the party calling him, to decide whether or not there is a potential conflict of interests in the consultant so acting as the expert. It is material that the expert should disclose the relevant facts of his involvement or activity which raises the possible conflict. I regret to note that in this case, neither Mr. Chan nor the Institute instructing him as its expert has disclosed to the Court at any stage of the proceedings when expert evidence is sought to be introduced the full relationship between KCS/Mr. Chan and Madam Shi or the Institute, nor the full role played by KCS and Mr. Chan in relation to the Works forming part of the project for which tenders were invited, and in respect of which tenders KCS and/or Mr. Chan had prepared the Schedule of Works.

76.While I do acknowledge that Dr H did say he is acting for H in the German divorce proceedings, I have mentioned above the issues that concern me about Dr H’s expert opinion, especially in its lack of completeness.  I therefore find Dr H’s expert opinion of little assistance to me in deciding the outcome of this application.  

77.In contrast, W’s expert is independent, other than updating this Court in the stages of German proceedings, there is a clear write up on the German law dealing with the issues at hand.  H’s expert actually said that W’s expert opinion covering custodial law, assets division and maintenance payments are “accurately presented”.  I therefore rely on this latter opinion in determining the issues before me.

Did W submit to Jurisdiction in Germany

78.H submits that in making and continuing with her custody application, W has submitted to the jurisdiction of Germany; and that the German Court has accepted jurisdiction for W’s Custody Application.

79.W took out custody proceedings on 20 March 2020, according to the explanation in her expert opinion, this application deals with the right of a parent to determine the residence of a child.  Although this is a custodial right which is enjoyed by both parents jointly, the right to determine residence can be carved out under a separate application in Germany.

80.H took out a counter claim for the same issue in June 2020.

81.The law on submission to jurisdiction has been summarized by Au Yeung J in the case of YJH v LKHM [2019] HKCFI 2030, quoting two local cases:

C4.  Submission to jurisdiction

58.       In RKL v WL & anor [2016] 5 HKC 153, at §§31-33, Chu JA set out the tests on voluntary submission to jurisdiction:

(1)  Whether any particular matter amounts to a voluntary submission to jurisdiction must depend on the circumstances of the particular case. The circumstances should be looked at sensibly, realistically and fairly to see whether the step taken by the defendant constituted a submission to jurisdiction.

(2)  The test to be applied is an objective one and what must be determined is whether the only possible explanation for the conduct relied on is an intention on the part of the defendant to have the case tried in this jurisdiction.

(3)  A useful test is whether a disinterested bystander with knowledge of the case would have regarded the acts of the defendant, or his solicitors, as inconsistent with the making and maintaining of his challenge.  The representation derived from those acts said to be submission must be capable of only one meaning. If the well-informed bystander had been left in doubt because what the defendant had done was equivocal, in the sense that it was explicable on other grounds in addition to submission to jurisdiction, then the conclusion must be that there has been no submission to the jurisdiction.

59.       In Hwoo Huang Linda v Fu Being San & ors [2013] 1 HKLRD 259, §26, Deputy Judge Reyes SC (as he then was) gave some guidelines to evaluate if there was submission to Hong Kong jurisdiction:

(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).

(3)  A party does not submit to the jurisdiction if he merely acts to preserve the status quo pending the mounting and resolution of an application to challenge forum.

(4)  A party does not submit to the jurisdiction if he merely takes defensive action in interlocutory injunction proceedings brought by the other side.

(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.

82.To apply these principles to the current case, one needs to look W’s affirmation as to why she took out the proceeding in Germany, the following is taken from her 3^rd Affirmation:

20. On 10 March 2020, J instructed his German lawyers to send me a letter whereby he demanded the immediate return of N within 6 days i.e. by 16 March 2020 and threatened to bring criminal charges against me if I continued to stay in Hong Kong with N.  I understand that if criminal charges against me were to be filed, this would mean that I might be arrested and detained by the police whenever I set foot in Germany again.

21. On 17 March 2020, one day after the deadline for the return of N arbitrarily imposed by J, J sent me a lengthy WhatsApp message which concluded by saying, “I will therefore have to take legal steps which protect this right and I am worried about the consequences but I don’t have any choice”.  I considered our marriage to be irretrievably broken down when J repeatedly sought, and threatened, to put me in jail.  This highly intimidating situation, coupled with the increasing pressure caused by J's cessation of maintenance for me or N from January 2020, left me with no alternative but to explore possible courses of action to resist and protect myself and N against J's threats.

…

23. With the breakdown of my marriage with J, I saw no reason for me to go back to Germany, leaving behind my family and friends in Hong Kong.  At the same time, I also did not want to risk being arrested in Germany, as threatened by J, if and when I later accompanied N to Germany for a visit.  Thus, upon advice of my German lawyers, I took out the action 1XX F 3XXX/20 on 20 March 2020, which is a standalone and limited action inviting the German Court to decide on the place of residence of N.  This was before J issued the German divorce action 1XX F 5XXX/20 in October/November 2020 when I was first informed by the German Court of such case number.

83.The test to be applied is that from the point of view of a disinterested bystander who knows the case, whether W’s act of custody application can be seen as an unequivocal act of submission to jurisdiction in Germany.  The W provides her reason for her application, in the absence of cross examination to test her evidence; I have to assessed whether it is credible using a common-sense approach, reminding myself that I am not to be “overly subtle or astute to find that a party has submitted to the jurisdiction”.

84.W says that she needs to make this application to protect herself from being imprisoned if H did report to the police as he said he would.  A successful application would enable her to have the option to bring N back to visit H in Germany without this concern. 

85.W’s counsel submits that her application is a defensive one “limited in extent as was necessary to protect her and her child’s position”; that she has never filed a divorce there nor claimed maintenance for herself and N in Germany.  And therefore, W has not unequivocally submitted to the jurisdiction in Germany.

86.This is not a case in which the W is a respondent to an action taken by another, therefore the guidelines in the abovementioned Hwoo’s case do not squarely apply.  I see the W’s action as a proactive act to preserve her position, and to ensure N is not taken away from her.  I find this explanation credible on a balance of probabilities.  As her custody application has more than one credible reason other than a choice to submit to jurisdiction in Germany, she is to be given a benefit of doubt.

87.Looking at the conduct of the W after March 2020.  She has said in her affirmation that she was of the view that the marriage was over, followed by mediation attempts between April to October 2020.  After which she filed her Hong Kong divorce proceeding in November 2020. She has had representation in SR in the custody application, after indicating her willingness to attend these proceedings via zoom in May 2022, there has been no development in this matter up to the date of this hearing.

88.W’s expert opinion states that the German Court accepts jurisdiction because at the time of her application in March 2020, the child was still considered to have his residence in Germany.  However, up the date of this hearing, the child has settled in Hong Kong for three years, his habitual residence is clearly established in Hong Kong (more discussion on this below). 

89.As both parties have filed an action on this issue, W’s expert opinion says that W cannot withdraw her claim unilaterally.  I accept this is the reason why W’s application is still “live” in Germany.

90.Based on the above analysis, I am of the view that W has not submitted to jurisdiction in Germany.

Development in Germany after this Hearing

91.This Court has received three correspondences from the W’s solicitors, respectively on 1 February 2023, and 11 April 2023 and 27 April 2023.

92.The letter of 1 February 2023 informed the Court that W’s application for N’s right of residence originally scheduled for 4 January 2023 has been adjourned to 22 March 2023.  It is of note that the Court’s notification still shows Dr H representing H.

93.The second letter reports that at a court hearing on 3 April 2023 in Germany:

a.  The right to determine the child’s residence is granted to the W; and

b.  The H’s divorce action was dismissed.

94.The last letter informed this Court that Dr H is appealing both decisions and that the Court of Appeal may review this matter in June or July 2023. 

95.On the Court’s request, certified translation to the two German resolutions was provided on 5 September 2023.  I quote the relevant passages below.

96.One resolution is recorded as “parental custody: transfer of right to determine the place of residence”, which right has been transferred to the mother.

a.  The Court finds that N is habitually resident in Hong Kong.

b.  The court is guided by what is in the best interests of the child.

c.  “As N has been living with his mother since his parents separated in December 2019, she is his main bonding and attachment figure. N will be only five years old next June and thus has been living with his mother in Hong Kong for the vast majority of his young life. He knows the father through video phone calls and from a few visits of the father in Hong Kong.  Separating the child from the mother and thus from its main caregiver would represent a threat to the child's well-being. Due to the great distance, the closer circumstances of the child's life cannot be explored by the family court. A personal impression of the child could not be gained either. However, there are no indications that the mother is not able to care for N or that her ability to bring up the child is otherwise limited, and the father has not provided any evidence to this effect. Since the decision is to be based solely on the best interests of the child, the question of the correctness of the mother's move with N to Hong Kong does not have to be decided here.  Due to the sheer course of time - aggravated by the COVID situation since the beginning of 2020, which made mutual visits impossible for a long time - it has turned out that for N the mother is her sole caring parent.”

97.The H’s divorce proceedings were dismissed with costs. The following paragraphs are of relevance:

a.  “Since the wife’s divorce petition became pending in HK before the husband’s divorce petition here could be served on his wife in HK … therefore, no further proceedings may be brought before a German family court during the pendency of the divorce proceedings before a court of a foreign (third) state.  Hence, these proceedings become inadmissible.”

b.  The resolution recognized that the H’s divorce was served on the W on 12 August 2022; and W’s divorce petition was served on H on 28 January 2021. On the latter point referring to a certificate from the Ministry of Justice of the State of Brandenburg dated 4 February 2021.

c.   “It is also undisputed that several appointments took place [in Hong Kong], most recently on 29 July 2022 and thus also before the pendency of the proceedings here.”

d.  “There are no circumstances that would indicate that the decision pronounced before the family court in Hong Kong, China would probably not be recognized … an obstacle to recognition is neither apparent nor has been presented by the applicant here.”

98.As at the time of writing of this judgment, no more information has been furnished with regard to the status of the intended appeals.

Legal Principles on Forum Non Conveniens

99.H has the onus of proving his claim to Germany being the more appropriate forum.

100.H’s counsel refers me to this Court decision of CTW v SGW [2022] HKEC 4362, which quoted the CFI’s decision of YJH v LKHM [2019] HKFLR 418, where Au Yeung J summarized the principles of forum non conveniens:

“43. The Court of Final Appeal summarized the principles governing applications to stay Hong Kong actions on forum non conveniens 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 ie 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 and 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 the 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.”

44. For proper assessment, it is not enough to load up factors which connect a case or the parties to any particular jurisdiction.  The court is required to focus on the appropriateness of a forum from the point of view of the trial of the action: Rambas Marketing Co LLC v Chow Kam Fai David [2001] 3 HKC 250, at 255B-E, Recorder Ma SC as he then was.

…

The welfare of the child has to be considered in two different contexts. The first is the context of which court shall decide what the child’s best interests require. The second context, which only arises if it has first been decided that the welfare of the child requires that the Hong Kong rather than a foreign court shall decide what are the requirements of the child, is what orders as to custody, care and control and so on should be made: Re F (A Minor)(Abduction: Custody Rights) [1991] Fam 25, at 31D-E, Lord Donaldson.

46. In the absence of statutory provisions and as a matter of good common sense, the jurisdiction where the child habitually resides should try the case: LN v SCCM at §29, Cheung JA.  The rationale is:

“29. … After all, if the children are here, issues concerning their well being can be conveniently dealt with in terms of the Court’s local knowledge and experience on the way they are to be raised and educated, inquiry by social workers and experts, testimony from witnesses and the Court’s wish to hear the views of the children directly. More importantly, this will ensure that there is no undue disruption of the children’s normal daily life when the matter is heard on home grounds. Without going into a discussion on the legal meaning of habitual residence, it does appear that the children have habitually been residing in Hong Kong.”

46. However, though habitual residence of the child is a factor of high importance, it is not a conclusive factor: H v H (Minors) (Forum Conveniens) [1993 1 FLR 958, at 974 D-G.

47. The court has to consider a basket of other factors.  In V & M (A Child) (Stranding: Forum Conveniens: Anti-Suit Injunction) [2019] 4 WLR 38, Williams J stated at §35(iii):

“In assessing the appropriateness of each forum, the court must discern the forum with which the case has the more real and substantial connection in terms of convenience, expense and availability of witnesses. In evaluating this limb the following will be relevant; (a) … parties’ connections with the competing forums in particular the jurisdictional foundation; (b) the relative ability of each forum to determine the issues including the availability of investigating and reporting systems. In practice judges will be reluctant to assume that facilities for a fair trial are not available in the court of another jurisdiction but this may have to give way to the evidence in any particular case; (c) the availability of witnesses and the convenience and expense to the parties of attending and participating in the hearing; (d) the availability of legal representation; (e) any earlier agreement as to where disputes should be litigated; (f) the stage any proceedings have reached in either jurisdiction and the likely date of the substantive hearing; (g) principles of international comity, in so far as they are relevant to the particular situation in the case in question. However public interest or public policy considerations not related to the private interests of the parties and the ends of justice in the particular case have no bearing on the decision which the court has to make; (h) it has also been held that it is relevant to consider the prospects of success of the applications.” (emphasis added)

….

53. Ultimately, whether to stay or refuse a stay depends on whether the defendant can establish that to refuse a stay would cause injustice.  In MacShannon v Rochware Glass Ltd [1978] AC 795, Lord Salmon at 818-819 of his judgment stated as follows:

“In an action brought in England when its natural forum is Scotland, I consider the question as to whether it should be stayed depends upon whether the defendants can establish that to refuse a stay would produce injustice. Clearly if the trial of the action in England would afford the Scottish plaintiff no real advantage and would be substantially more expensive and inconvenient than if it were tried in Scotland, it would be unjust to refuse a stay. If, on the other hand, a trial in England would offer the plaintiff some real personal advantage, e.g., if he had come to live in England, a balance would have to be struck and the court might in its discretion consider that justice demanded that the trial should be allowed to proceed in England (see e.g. Devine v. Cementation Co. Ltd. [1963] N.I. 65). To my mind, the real test of stay or no stay depends upon what the court in its discretion considers that justice demands. I prefer this test to the test of whether the plaintiff has behaved ‘vexatiously’ or ‘oppressively’ on a so-called liberal interpretation of these words.” (emphasis added)

101.Taking into account these principles, I will proceed to apply to the facts of this case.

Discussion

102.Applying the basket of factors from the abovementioned case of V & M.

Parties’ connection with the competing forum

103.H argues that there is real and substantial connection with Germany.

104.It is not disputed that H has spent his entire life in German except for one year in Israel and 10 months of high school in the USA.  His business and assets are in Germany, he also owns the property at the LKW address.

105.The parties met and got married in Germany, they spent two years of their married life there before W left for Hong Kong with N in December 2019.

106.H says there were no plans to leave Germany, and said that W is aware that H has applied for kindergarten for N for October 2020, but he was too young to attend school before they left for Hong Kong.

107.W was born raised and educated in Hong Kong, and went to Germany in October 2015 for work and lived there from 2015 to 2019.  W went to work in Germany in 2015 and leased a property at the WKS address.  The parties did live there for a while during the marriage. This lease expired 10 months after she left Germany.  She continued to honour her rental payment but gave notice for the termination of the lease as at September 2020.  H took over the lease after this.

108.During the time she was in Germany, she continues to visit her family in Hong Kong on an annual basis for two months.  She says she never intended to leave Hong Kong for good.  She has been a tax resident of Hong Kong throughout her working career, and she has never withdrawn her MPF in Hong Kong.

109.On her return from Germany, W has been living with N at her parents’ home since.  She has since worked in Hong Kong as a Business Development Director.

110.W argues that she and N has integrated into the Hong Kong community, that N has now lived in Hong Kong for longer than in Germany.  N is cared for by his mother, maternal grandparents and has a relationship with the W’s brother; he has started attending schools in Hong Kong, made new friends, and settled down. 

111.Further to terminating her lease for the apartment at WS address, She has lost her Germany residence permit as she was away for more than 6 months, and she withdrew her pension in Germany in March 2022.  Her Form E shows only one active bank account there with approximately EUR12,900 as at February 2022.

112.The W’s connection with Germany has been transient.  It was first tied to her work, and then to her marital relationship with H, which only lasted for two years.  As at the date of this Hearing, she does not appear to have any more connection to Germany other than the above-mentioned bank account. 

The relative ability of each forum to determine the issues including the availability of investigating and reporting systems

113.There is no evidence before me that the German Courts cannot deal with the issues of custody and divorce proceedings.  Indeed, with the latest development of the German proceedings, the German Court has just made two recent decisions related to this matter, as mentioned above.

114.However, it is of note that if Germany were to make any investigation and report on N, it will have to be done remotely.

115.At the point of writing of this Judgment, there are no more active proceedings in Germany.

116.It is not disputed that this Court can deal with custody and maintenance hearing for W and N.  The Social Welfare Department is well equipped to assess N’s situation to assist the Court in making decision in N’s best interest.

The availability of witnesses and the convenience and expense to the parties of attending and participating in the hearing

117.There should primarily be only two witnesses for this case, H and W.

118.H has travelled to Hong Kong since the start of these proceedings to see N, and there does not appear to be any obstacles preventing him from attending any hearing in Hong Kong.  In any event, H can attend hearing via VCF as long as he informs the Court well beforehand.

119.On the contrary, it will be somewhat difficult for W to attend any physical hearing in Germany, especially as she is N’s primary carer. However, recent event has shown that W has attended one hearing remotely, so this could be done as well if needed; and with the assistance of an interpreter.

120.W has also suggested her parents and brother may also be witnesses in any children’s trial, and the SWO will also be needed at trial. Hence, the majority of the witnesses are in Hong Kong for proceedings relating to N.

121.It has been submitted on behalf of H that proceedings moves faster in Germany; and is cheaper.  But W has correctly submitted, quoting YJH v LKHM, that it should not be down to some comparison on “cheapest and quickest”.  I agree.

The availability of legal representation

122.As both parties have retained legal representation in Germany and in Hong Kong, there is no issue on this point.

Any earlier agreement as to where disputes should be litigated

123.None exist.

The stage any proceedings have reached in either jurisdiction and the likely date of the substantive hearing

124.H has argued that W’s Form E (filed in April 2022) is sealed in an envelope in this Court, and that she has not yet filed his Form J nor has any order been made with regard to N; but W has filed her custody application and provide affidavits in support in Germany.  To address the first part of the H’s argument, I remind myself that this Court has ordered an interim stay of the Hong Kong proceedings in June 2022.

125.W has obtained the decree nisi of her Hong Kong divorce proceedings in February 2022.  

126.At the time of the hearing, the H’s divorce proceedings has just been served, his first contact application is dismissed, the second one on hold; and the W’s custody application has no date for a substantive hearing. And as mentioned above, as at the time of the writing of this Judgment, there are no live proceedings in Germany.

N’s habitual residence

127.N’s habitual residence is one of the factors to consider.

128.As mentioned in and further to the above paragraph 110, N has started at playgroup and nursery the summer after he arrived in Hong Kong.  Since September 2021, he has begun his studies at a private kindergarten, made new friends, started a routine, attended classes and extracurricular activities.  N was 1½ years old when he left Germany, and now 5 years old; as W correctly points out, N has been in Hong Kong longer than the time he was in Germany.

129.The legal principles on habitual residence have been set out by our Court of Appeal in LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798 where it is stated:

(1)  Habitual residence is a question of fact which should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce (In re L (A child) paragraph 20);

(2)  The factual question is: has the residence of a particular person in a particular place acquired the necessary degree of stability (permanent is the word used in the English versions of the two CJEU judgments) to become habitual?  It is not a matter of intention: one does not acquire a habitual residence merely by intending to do so; nor does one fail to acquire one merely by not intending to do so (In re LC (Children) paragraph 59);

(3)  The concept corresponds to the place which reflects some degree of integration by the child in a social and family environment (In re L (A child) paragraph 20);

(4)  The question is the quality of the child’s residence, in which all sorts of factors may be relevant.  Some of these are objective: how long is he there, what are his living conditions while there, is he at school or at work, and so on?  But subjective factors are also relevant: what is the reason for his being there, and what is his perception about being there?  (In re LC (Children) paragraph 60);

(5)  There is no legal rule, akin to that in the law of domicile, that a child automatically takes the habitual residence of his parents (In re L (A child) paragraph 21); and

(6)  Although a child could lose his habitual residence without a parent’s consent, nevertheless, it is clear that parental intent does play a part in establishing or changing the habitual residence of a child: not parental intent in relation to habitual residence as a legal concept, but parental intent in relation to the reasons for a child’s leaving one country and going to stay in another.  This will have to be factored in, along with all the other relevant factors, in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of habitual residence (In re L (A child) paragraph 23).

130.On the bases of the facts of this case, it does appear that the N has developed a stable residence in Hong Kong, W has also attested to this with supporting photos and school reports, certificates and reference letters from N’s teachers exhibited by W to her third affirmation.

131.W’s expert opinion also says this:

“The prominent and most relevant, deciding factor and guiding principle regarding all child arrangements ordered by the family court is the well-being of the child. The court will also take into account the following factors like for example:

- continuity of the surroundings and constant main caregiver

- continuity of contact to other relevant people for the child (wider family, friends etc)

- existing social bonds

- existing nursery school arrangements etc

The court decision is based on the child well-being which comes from a constant and stable environment, no uprooting unless necessary, recognition of the child's own uninfluenced wishes from a certain age, the child's bonds etc.”

132.At the custody hearing on 5 May 2021, the German Court stated that N has his habitual residence in Hong Kong. 

133.In a letter dated 6 January 2022 the Judge in Germany asked the following, and gave the chance for the parties to settle the matter amicably between themselves but was not taken up:

“N has now been in Hong Kong with his mother for over two years. The parties involved are asked to state whether an agreement on the child’s centre of life with the mother is possible. The proceedings could then be terminated without a court decision.”

134.Finally, as mentioned above, the German Court made its finding in respect of the right to determine the N’s residence to W based on its finding that N now has his habitual residence in Hong Kong.

135.On the bases of the evidence before me, this Court makes the same findings that N’s habitual residence is now in Hong Kong.  

H must show that HK is not the natural or appropriate forum

H must show Germany is clearly and distinctly more appropriate forum than Hong Kong

136.I find that H has failed to establish both of these limbs.  In particular, W has minimal connection with Germany, N’s life is now settled in Hong Kong; and looking at the convenience and expediency as to where the trial should be heard, it is clear to me that on a balance of probabilities, Hong Kong is in a better position to determine what N’s best interests require.

Will W be deprived of a legitimate personal or juridical advantage if the matter is tried in Germany?

137.According to the authorities, this can be where the analyses end.  For completeness, I shall comment briefly on this issue.

138.I turn to the W’s submission and highlight her arguments as follow:

a.  For asset division between spouses, the German law applies a formulaic approach in calculation of “equalisation of gains”.  There is no analysis on the W’s needs.

b.  Spousal alimony payment is limited in duration to one third of the duration of the marriage.  For this two years marriage, W would only be paid for 8 months.

c.  As for Child maintenance, German courts calculates this based on a “Dusseldorfer Tabelle” (submitted as an exhibit in court) and the paying parent’s income group.  W submits that it bears no resemblance to the assessment of child’s needs under Hong Kong law; and that it is based on standard of living in Germany which is lower than that of Hong Kong.  Furthermore, there is no assessment of what this amount is as H has made no financial disclosure to date.  W also argues that H has made no effort to pay any regular child maintenance to W despite requests.

d.  W also submits that the disclosure requirement in Germany is far from what is required in Hong Kong. And that the disclosure goes to financial assets “but not pensions entitlements, and also does not include income, which is considered separately for alimony purpose.”

e.  There is no processes in Germany akin to the Hong Kong dispute resolution processes.  Although this Court observes that the parties did attempt private mediation to no avail.

139.H argues costs and expediency advantages in Germany. These points were covered above.

140.H says that W argues that language is an issue, that H’s English is better than W’s German.  I do not feel that this language issue sways the argument either way, courts in both jurisdictions can provide translation assistance for both parties.

The Balancing Exercise

141.I have found that H has failed the initial tests in establishing his case.  There are no merits to his argument for W’s substantial connection to Germany.  It is distinctly clear to me that N’s habitual residence is now Hong Kong.  There should have been no need for this Court to look at balancing the parties’ personal and juridical advantages.  Nonetheless, the arguments have been put forward above.

142.Echoing HHJ Melloy’s comment in the case of V, DS v C, RF, also known as C, RF [2020] HKFC 222: one person’s advantage is often another person’s disadvantage.  On a balance, I accept W’s arguments on the personal and juridical disadvantages she would suffer were the case to be heard in Germany.  I am of the view that the interest of justice is best served if this matter is to be heard in Hong Kong rather than in Germany.

143.I therefore conclude that the H’s Summons should be dismissed.  

Costs

144.I do not see any reason why costs should not follow the event, therefore H is to pay W’s costs of this Summons. 

Order

145.The Order shall read as follows:

a.  Paragraphs 1 – 3 of H’s Summons dated 17 June 2022 are dismissed.

b.  Costs of this Summons be to the W, including all costs reserved, with certificates for counsels.  This is a cost order nisi to be made absolute 14 days from the date of this Judgment.

Other Matters

146.W has made submissions regarding access issues to N, and his maintenance; the substantive arguments of which are outside the scope of this decision and should be matters of proper applications to be supported by evidence on both sides should the parties be so advised.

147.W’s legal representatives are directed to refrain from filing running bundle for trial. 

For Petitioner: Ms Madeleine Booth instructed by Messrs Stevenson, Wong & Co.  

For Respondent: Mr Robin Egerton instructed by Messrs Withers