朱 v. 劉

FCMC 8529 / 2021

[2023] HKFC 32

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8529 OF 2021

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D E C I S I O N
(Leave to Appeal)

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A.  Introduction

1.On 4 November 2022 this Court handed down a Decision on the issue of Jurisdiction/forum non conveniens after a 2-day substantive hearing on 5 and 6 September 2022 (“Decision”). I shall adopt the terms defined therein in this Decision.

2.For reasons set out in the Decision, I have dismissed the Wife’s Petition filed on 24 August 2021 for want of jurisdiction and consequently dismissed her MPS Summons filed on 28 April 2022.

3.By her Inter-Parte Summons filed on 2 December 2022 (“Summons”) the Wife now seeks leave from this Court to appeal the Decision as well as to seek for a stay of execution of the Decision pending determination of the leave to appeal.  For clarity, the Petitioner/Intended Appellant and the Respondent/Intended Respondent as referred to in the Summons are the Wife and the Husband respectively and I shall continue to address them as such in this Decision.

4.A draft Grounds of Appeal has been attached to the Summons, setting out a total of 7 grounds as follows (collectively referred to as “Grounds”) :-

(a)  In reaching the Decision, the learned Deputy District Judge had erred in finding that the Respondent/Intended Respondent did not on the date of the Petition have substantial connection with Hong Kong.

(b)  In particular, the learned Deputy District Judge had failed to accord due consideration to the economic connection between Hong Kong and the daily life of the Respondent/Intended Respondent and the children of the family despite that they were living in Canada on the date of the Petition.

(c)  In making the determination in the Decision that Hong Kong has no jurisdiction over the marriage between the Petitioner/Intended Appellant and the Respondent/Intended Respondent (the “Jurisdiction Determination”), the learned Deputy District Judge had failed to accord adequate weight to the failure on the part of the Respondent/Intended Respondent to make full and frank disclosure, including and in particular, the information of his financial condition which had not been disclosed by the Respondent/Intended Respondent may show that he had substantial connection with Hong Kong on the date of the Petition.

(d)  In making the Jurisdiction Determination, the learned Deputy District Judge had failed to accord adequate weight to the deficiency of the financial disclosure made by the Respondent/Intended Respondent, which (i) had rendered the Respondent/Intended Respondent incredible in mounting his jurisdictional challenge against the Petition and/or (ii) could indicate that he had substantial connection with Hong Kong on the date of the Petition.

(e)  Essentially, it warrants to the court of Appeal to review whether in the circumstances like the present one, the Court would regard a party to the marriage has substantial connection with Hong Kong.

(f)  In making the determination that Hong Kong Court is a forum non conveniens (the “FNC Determination”), the learned Deputy District Judge had failed to accord adequate consideration to the decision (深圳管轄權裁定) rendered by the Luohu court on 20^th September 2022, whereby the Luohu Court declined jurisdiction over the Respondent/Intended Respondent’s application for divorce therein resulting that there was an non-existence of another appropriate forum over the marriage between the Petitioner/Intended Appellant and the Respondent/ Intended Respondent.

(g)  As a result of the errors in the Jurisdiction Determination and FNC Determination, the learned Deputy District Judge had erred in determining that there was no need for him to make a determination of the MPS Summons and therefore, dismissed the Summons.

5.The Husband opposed to the Summons.

6.Both parties are legally represented for this application and that they have respectively filed their skeleton submissions as well as indicating their agreement for this application to be dealt with by way of paper disposal, in accordance with the adopted practice under the New Arrangement for Application for Leave to Appeal in the Family Court dated 13 August 2018.

B.   Applicable Legal Principles

7.It is trite that section 63(A)(2) of the District Court Ordinance (Cap. 336) provides that leave to appeal shall not be granted unless the court is satisfied that (a) the appeal has a reasonable prospect of success, or (b) there is some other reason in the interests of justice that the appeal should be heard.

8.The relevant test of whether an appeal has “a reasonable prospect of success” is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011.

9.For the “some other reason” limb for granting leave to appeal, it is impossible to give an exhaustive list of the circumstances that the Court of Appeal would find that there is some other reason in the interest of justice that an appeal should be heard.  The Court of Appeal may grant leave if the question is one of general principle, decided for the first time, or a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage (See: Hong Kong Civil Procedures 2023, Vol 1 para 59/2A/4 at p.1239).

10.Primary findings of fact/evaluations of facts based on credibility, inferences and/or exercise of discretion in matrimonial proceedings, in general, would not be lightly disturbed on appeal unless they are “plainly wrong” or “falling outside of the parameters of reasonable disagreement” between different judges. For jurisdictional matters in matrimonial context in particular, see: ZJW v SY(Jurisdiction; Substantial Connection)[2017] HKFLR 612, where Poon JA (as he then was) identified the appellate Court’s approach in a challenge of a first instance judge’s findings of primary fact (at 622E to 624F, §§28-32) and that of findings based on evaluation of facts which is akin to the exercise of discretion (at 624G, §§33). Notably, it is said that the same approach applies to a challenge of inferences drawn from primary facts as a challenge of primary facts themselves (at 625A, §34), i.e. the “plainly wrong” test.

11.As expounded in the more recent Court of Appeal case of JQ v CLH (Divorce: Jurisdiction) [2022] HKLRD 632 (at 648, §27), on the issue of substantial connection :-

“27. It has not been shown that the Judge erred in principle, or took into account irrelevant matters, or failed to take into account relevant matters, in reaching his conclusion that the Husband had a substantial connection in Hong Kong at the material time. It has also not been shown that the Judge made any palpable error, or that the Judge was plainly wrong, in his conclusion….”

12.I shall be guided by the above principles in the analysis below.    

C.  Analysis

13.Firstly, the Wife confirms in her skeleton submission that she seeks to rely on both the ‘reasonable prospect of success’ limb as well as the ‘some other reason’ limb. It is also noted from above that albeit the Husband has defined Jurisdiction Determination under his Grounds, he does not challenge this Court’s findings on the issue of domicile. The focus of the Husband’s challenges concerns this Court’s determination on the issue of substantial connection and forum non conveniens.

Ground (a)

14.The Wife did not elaborate on this ground other than to state in her skeleton that this is an exceptional case. Doing the best I can to gauge what she means, I think the Wife wishes to trigger the ‘some other reason’ limb with this ground, which overlaps with her ground (e). The only other way I could comprehend this ground is that the Wife merely asserted this in the generic whereby the specifics are to be found under her ground (b) to (d) – which are all in relation to substantial connection. In any event, this should not be how grounds of appeal are to be put forward and in considering ground (a) as a stand-alone ground I have no hesitation to come to the conclusion that it must have no reasonable prospect of success for the complete lack of any particulars.

Ground (b)

15.The essence of the challenge here by the Wife concerns the economic connection between Hong Kong and Canada. In my view this is no more than an attempt to re-litigate what has already been fully canvassed both at the hearing and in the Decision. For example, see: §§ 41(g)–(k) as well as §§53-55 of the Decision.

16.Seemingly under the same ground, the Wife contested that the Court did not pay due regard to the Declaration of Sponsor with the Hong Kong Immigration Department. I find this contention rather unfortunate for two reasons: (i) insofar as substantial connection is concerned, the Wife did not plead the same in her particulars under the Petition; and (ii) be that as it may, this Court has in fact already duly considered this point with full analysis given under §41(f) of the Decision.   

17.Accordingly, this ground has no reasonable prospect of success.

Ground (c) and (d)

18.These two grounds put forward by the Wife challenge the lack of, and/or the deficiency of the Husband’s financial disclosure, which otherwise ‘may’, or, ‘shall be able to’, show the Husband had a substantial connection with Hong Kong according to the Wife. (§§11&13 of Wife’s skeleton)

19.To begin with, these are bare allegations. It has been the Husband’s case that he has frankly disclosed his assets in accordance with adopted legal procedures under the PRC Proceedings. This Court has also considered and discussed the same in the Decision under the issue of juridical advantage (§89 of the Decision).

20.Further, as pointed out in the Husband’s skeleton, the Wife in the course of the substantive hearing relied on the Husband’s alleged financial non-disclosure in support of her case under forum non conveniens, namely that if her case were to be tried in the PRC instead of Hong Kong she would suffer juridical disadvantage caused by the different discovery procedures adopted in the respective jurisdictions. In other words, the Wife did not rely on the Husband’s alleged financial non-disclosure insofar as the issue of substantial connection is concerned. With respect, I agree and it should not be open for the Wife to run these points now on appeal: see Ricoh Hong Kong Ltd v Wallbanck Brothers Securities (Hong Kong) Ltd [2016] 3 HKLRD 134, at §4. By the above analysis, I fail to see how ground (c) or (d) would amount to having a reasonable prospect of success in the intended appeal.  

Ground (e)

21.It is believed that the Wife wishes to trigger the ‘some other reason’ limb on the strength of this ground. The Wife says this is an exceptional case, but without any explanation as to the basis of her claim as such. Further, the Wife herself at all material times is aware of the Court of Appeal’s decision in JQ v CLH (supra.) in rejecting ‘exceptionality’ as a test for determining substantial connection. I have also referred to and discussed the same in the Decision – see §§44, 50-51 of the Decision.

22.In the Wife’s skeleton (§16) she fully acknowledges JQ v CLH :-

“16. In JQ v CLH, the Court of Appeal held that it is wrong to elevate “exceptionality” to a test and it is always a question of facts. In the present case, there are clearly factors who may lead to a conclusion that it is an exceptional case, Accordingly, in P’s respectful submissions, it warrants the Court of Appeal to, in the interest of justice, review that the boundary of substantial connection with these exceptional factors: see also JQ v. CLH at §§15-16.”        

23.It is trite that the issue of substantial connection is highly fact-sensitive. (e.g. see §28 of JQ v CLH). To me, it is contradictive of the Wife to, on the one hand accepts JQ v CLH as good recent authority and yet on the other hand wishes the Court of Appeal to revisit this issue, and more alarmingly, without particularising exactly what factors she relies upon in warranting the present case as exceptional.

24.To put the above into context of the ‘some other reason’ limb, it is my view that the Wife here has not shown how the intended appeal on this point, which is highly fact-sensitive, will impact other cases when each case will ultimately turn on its own facts; nor has the Wife demonstrated that there was any irregularity in the Decision under this ground. I therefore fail to see how Ground (e) would amount to ‘some other reason in the interest of justice why the appeal should be heard’.

Ground (f)

25.This ground concerns the issue of forum non-conveniens and the Wife now specifically challenges this Court in not placing adequate weight to the PRC Ruling dated 20 September 2022. I have dealt with this document in length in the Decision (§§93 to 102 of the Decision) and without repeating the same, it should be highlighted that the Wife herself, through her then legal representatives in written submission, also acknowledged that the PRC Ruling was reached based on an incorrect understanding that the Husband in these proceedings had already “answered” to the Petition. (§98 of the Decision)

26.Based on the above, it is in my view not factually supported for the Wife to contend under this ground that the PRC Ruling ‘therein resulting that there was an non-existence of another appropriate forum’. For these reasons I am not satisfied that the Wife has a reasonable prospect of success under this ground.

Ground (g)

27.This, to me, is a consequential ground, in that the Wife must accept the trite proposition that the Court must first have jurisdiction over the matter before the issue of MPS can be determined. Circumstances as to why the MPS Summons was heard immediately following the Jurisdiction Summons was fully explained in the Decision (§§4 to 6 of the Decision). Given my ruling on the Wife’s other grounds above, this ground also does not, in my view, have any reasonable prospect of success.

D.  Stay of Execution

28.The Wife filed her 4^th Affirmation on 8 December 2022 in support of the Summons, including her application for a stay of execution. Suffice for me to say that in the course of considering the Summons as a whole I have considered all relevant documents including this 4^th Affirmation. I note that in the Wife’s skeleton there is no mention of this issue; yet I have nevertheless deemed that the Wife continues to pursue a stay of execution despite no argument was put forward by her lawyers. However, given my ruling in rejecting all of the Grounds above, it must follow that any application for stay of execution does not come into play.

E.   Order

29.For all the matters set out above, it is my view that Wife has failed to show she has a reasonable prospect of success, or that there is some other reason in the interests of justice that the appeal should be heard. I hereby order that the Wife’s Summons be dismissed with costs to the Husband, with certificate for Counsel, to be taxed if not agreed.

Mr. Enzo Chow and Mr. Peter Zhu instructed by KCL & Partners, former Solicitors for the Petitioner/Intended Appellant

Mr. Eugene Yim instructed by Tony Kan & Co. for the Respondent/ Intended Respondent