S, A v. T, M

FCMC 3577 / 2024

[2025] HKFC 88

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 3577 OF 2024

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DECISION

(Jurisdiction, Forum non conveniens)

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A.  The Application

1.This is the Respondent’s (“R”) application for a stay or dismissal of the Petition filed on 12 April 2024 (“Petition”) for jurisdictional grounds.

2.The Petitioner (“P”) relied on his substantial connection with Hong Kong as at the date of Petition under section 3(c) of the Matrimonial Causes Ordinance (“MCO”).  P pleaded in paragraph 3 of the Petition that:

(1)  He is a holder of Hong Kong identity card;

(2)  He has been working and residing in Hong Kong for periods of time from and since 15 May 2017;

(3)  He is a banker resides at Four Seasons Place, Hong Kong.

3.On 3 May 2024, R filed divorce proceedings in New Jersey, USA (“New Jersey Proceedings”).

4.On 3 July 2024, R filed a Summons (“the Summons”) in the present proceedings seeking, inter alia, a general stay of the proceedings in the Petition on the ground that New Jersey is the forum conveniens, further and/or alternatively, the Petition shall be dismissed for lack of jurisdiction.

5.Notwithstanding the sequence of reliefs sought in the Summons, the first issue is whether this court has jurisdiction under section 3(c) of MCO because P has substantial connection with Hong Kong at the date of the Petition.

6.If this, being the only ground for jurisdiction of this court, is not established, that will be the end of the matter.  A party cannot confer jurisdiction on the court when the court does not have one: see W v C (Domicile and Forum) [2013] HKFLR 213; RS also known as RR v TS [2020] HKFC 149 at [21]; JQ v CLH [2021] HKFC 105, [2021] HKFLR 299 [20].

7.If the requirements under section 3(c) of MCO is proved, the next issue is whether Hong Kong or New Jersey is the forum conveniens.

B.  Relevant legal principles

8.Under section 3(c) of MCO, this court shall have jurisdiction in proceedings for divorce under MCO if either of the parties to the marriage had a substantial connection with Hong Kong at the date of the petition.

9.In ZC v CN (Divorce: jurisdiction) [2014] 5 HKLRD 43, the Court of Appeal held that:

“9.1  In line with the modern approach of statutory interpretation, one should not simply look at the natural and ordinary meaning of the words “substantial connection” but also the context and purpose of this term.

…

9.4  Whether a person has a substantial connection with Hong Kong is clearly a question of fact. No definition for this term will be succinct or comprehensive enough. What one may do is to look at the surrounding factors to see whether that person is substantially connected with Hong Kong at the time of the petition. As a starting point, one begins to see if that person has connection here and then decide whether that connection is a substantial one, see S v S [2006] 3 HKLRD 751, [15]. In terms of connection, there must be physical presence in Hong Kong, this must be the ground rock of invoking the divorce jurisdiction. But because of the requirement of “substantial”, the presence cannot be of a transitory nature otherwise this will encourage “fly in” and “fly out” divorces, a theme that the Court has consistently emphasised, see, for example, Griggs (née Sharp) v Griggs [1971] HKLR 299, Ta Tran Thi Thanh v Ta Van Hung [1981] HKDCLR 37 and more recently S v S, B v A [2008] 1 HKLRD 43.

9.5  In the majority of cases, where a married couple is in Hong Kong, the Court will have no difficulties in ascertaining whether they have a substantial connection here. Thus in RI v SSH [2010] 4 HKC 588, this Court held that:

[4] … Hence in order to see whether the proceeding has a real and substantial connection to Hong Kong one must, first of all, ascertain whether at the time of its commencement the parties have substantially conducted their matrimonial life in Hong Kong. Hong Kong being an international commercial city, the identification of this issue is most acute for expatriate families who live in Hong Kong. The relevant considerations are, for example, whether the parties’ matrimonial home is here, what is their past pattern of life; do they regard Hong Kong as their home for the time being even if their life style may indicate that they may not take root in one place for too long a time. Related to the issue are matters such as the place of work of the spouses: do they choose to work here; even if one of them has to ‘commute’ overseas to work, is Hong Kong still treated as their home base. Likewise for the children of the family: are they studying here or spending their vacations here even if they are studying abroad. See also LN v SCCM (unrep., CACV 62/2013, [2013] HKEC 870) (4 June 2013) and DGC v SLC (née C) [2005] 3 HKC 293.

9.6  While the discussion in RI v SSH was in the context of forum non conveniens, the question of forum is dependent on the place where the parties have the most real and substantial connection with the action. Hence the suggested factors are clearly applicable to the present discussion.

9.7  Traditionally, the discussion of this topic mainly centred on the foreign expatriate community who are present in Hong Kong because of business commitments or to avail themselves of the opportunities in this international commercial city, see, for example, S v S, B v A, G v G [2005] HKFLR 182 and Z v Z (Substantial Connection and Forum) [2012] HKFLR 346. Increasingly in recent years this issue is extended to many of the Hong Kong and Mainland Chinese families who have homes or businesses both here and on the Mainland. Examples can be found in this and other cases such as LS v AD (Forum: discovery in the PRC) [2012] HKFLR 376 and YS v TTWD (Substantial Connection: Forum) [2012] HKFLR 129. The focus of discussion in these cases is not about mainlanders who came here on visitors’ two-way permit but those who have resident status in Hong Kong. Needless to say, the same approach of looking at the surrounding circumstances in order to ascertain the presence of substantial connection is to apply to these parties as well.

9.8  The fact that a party has resident status which allows him or her to live here legally is only a factor to be taken into account. He or she may not be living here on a long term basis and only comes here occasionally. No doubt one has to look at other factors such as the party’s past pattern of life, the frequency of his visit to Hong Kong, the length and purpose of the stay, whether the party is engaged in business or work here, whether the rest of the family is here and whether a home has been established here and whether the children are at school here. It is also important to bear in mind that since the legislation only requires the party to establish a substantial connection in Hong Kong, he or she at the same time may have a substantial connection elsewhere, see S v S. In my view, if a party is shown to have substantial connection elsewhere by reason of his home or work, this may be used to contrast with the connecting factors he has in Hong Kong to see whether the Hong Kong connection is a substantial one.

9.9  It was said in Savournin [1971] HKLR 180, 184 (and also B v A [2008] 1 HKLRD 43, at [20]) that a meaning must be given to substantial connection wider than domicile or three years’ ordinary residence. But this is not intended to be interpreted so loosely as to encourage residence of passage (Indyka v Indyka [1969] 1 AC 33 at 105) or divorce of convenience. At the same time it will be unduly restrictive if one confines the connecting factors solely to that of a family context, namely, accommodation in a matrimonial home and presence of spouses and children. While in the majority of cases, family context is the focus of the inquiry and a material factor, there may well be situations where a party is in Hong Kong without the presence of his family, but nonetheless is able to show that he has a substantial connection here. It really depends on the circumstances of the case. Such cases, however, must be regarded as exceptional.” (emphasis in bold added)

10.In JQ v CLH [2021] HKFC 105, [2021] HKFLR 299, HHJ I Wong summarized the legal principles as follows:

“19. To summarize, the legal principles are:

(1) What is statutorily required under section 3(c) required under section 3(c) of the Ordinance is not just a “substantial connection” in any ordinary sense but a connection with Hong Kong of substantial substance that warrants the Hong Kong Court to assume jurisdiction to adjudicate on matters going to the dissolution of a marriage (see B v A at [22] - [23], per Hartmann J; and ZC v CN, supra at [53] - [55]).

(2) For the purposes of establishing (1) above, one should look at factors such as (a) whether the parties’ matrimonial home is in Hong Kong; (b) what is their past pattern of life; (c) do the parties regard Hong Kong as their home for the time being; (d) do the parties choose to work in Hong Kong; (e) are the children of the family studying in Hong Kong (see ZC v CN at [9.5] & [9.8], per Cheung JA).

(3) Physical presence in Hong Kong is necessary to the establishment of a connection but because of the requirement of “substantial”, the presence must be real and not merely transitory (see ZC v CN at [9.4], per Cheung JA).

(4) The fact that a party has resident status which allows him or her to live here legally is only a factor to be taken into account and is clearly not conclusive (see ZC v CN at [9.8], per Cheung JA).

(5) Whilst a party may have a substantial connection with more than one place, if a party is shown to have a substantial connection elsewhere by reason of his home or work, this may be used to contrast with the connecting factors he has in Hong Kong to see whether the Hong Kong connection is a substantial one (see ZC v CN at [9.8], per Cheung JA).

(6)   It is only in exceptional circumstances that a party who is in Hong Kong without the presence of his family will nonetheless be able to show that he has a substantial connection here (see ZC v CN at [9.9], per Cheung JA; and LCYP v JEK at [42], per Kwan JA).”

11.On forum non conveniens, the Court of Final Appeal summarized the principles in SPH v SA [2014] 3 HKLRD 497:

“50. It is now well established in Hong Kong that the general principles of forum non conveniens apply to the stay of matrimonial proceedings: Johnston, Conflict of Laws in Hong Kong (2nd ed., 2012), para.7.104.

51. We adopt the re-statement of the principles in matrimonial proceedings by the Court of Appeal (Cheung JA and Tang JA (as he then was)) in DGC v SLC (née C) [2005] 3 HKC 293, 297–298, applying Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460, 477 and Louvet v Louvet [1990] 1 HKLR 670, 674–675:

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 or distinctly more appropriate than Hong Kong. Failure by the applicant to establish these two matters at this stage is fatal.

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

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

52. The Court of Appeal in that case (as in the present case) emphasised that the husband was entitled to sue in Hong Kong as of right. Where jurisdiction is founded in the Hong Kong court as of right (as in divorce proceedings like the present case), the party seeking the stay has to establish that there is another available forum which is clearly or distinctly more appropriate than the Hong Kong forum. This derives from what Lord Goff said in Spiliada (at 477), which has been regularly applied in Hong Kong: eg The Kapitan Shvetsov [1997] HKLRD 374 at 377; The Peng Yan [2009] 1 HKLRD 144, at [22].

53. The existence of an ante-nuptial or post-nuptial agreement (particularly one governed by foreign law) is plainly a factor in the exercise of the discretion to stay on the ground of forum non conveniens, and there have been several decisions in this area involving such agreements. The facts in one case are not, of course, a guide to the exercise of discretion in another case, and they are presented here as merely illustrative. In England the decisions arise in the context of a statutory discretion to stay on “the balance of fairness (including convenience)” (Domicile and Matrimonial Proceedings Act 1973, Sch.1, para.9), which was held in De Dampierre v De Dampierre [1988] AC 92 to engage the same principles as those in the Spiliada case. In De Dampierre v De Dampierre itself the agreement for séparation de biens played no express part in the House of Lords’ reasoning that France was the appropriate forum for the divorce proceedings. In the Court of Appeal (whose decision was reversed) Dillon LJ thought it had no bearing on the appropriate forum. That approach was followed at first instance and on appeal in Louvet v Louvet [1990] 1 HKLR 670 (at 681).

54.  In R v R (Divorce: Stay of Proceedings) [1994] 2 FLR 1036, where there was a Swedish separation of property contract, Ewbank J held that justice demanded that a stay of English proceedings be refused because the Swedish court could do no more than apply Swedish law and enforce the marriage contract, whereas the English court could grant a property adjustment, a lump sum and periodical payments. In S v S (Matrimonial Proceedings: Appropriate Forum) [1997] 2 FLR 100 Wilson J granted a stay of English proceedings in a case where the parties had entered into an ante-nuptial agreement (in the negotiation of which each of the parties was represented by a distinguished New York lawyer) which provided for the financial aspects of divorce, and which was governed by New York law, and provided that it could only be enforced in New York. In C v C (Divorce: Stay of English Proceedings) [2001] 1 FLR 624 Johnson J placed decisive importance on the French ante-nuptial agreement (apparently for séparation de biens) in granting a stay of English proceedings. In Ella v Ella [2007] 2 FLR 35 the parties had entered into an ante-nuptial agreement, governed by Israeli law, providing for separation of property and for Israeli jurisdiction (at [38]), and it was treated as a major factor in granting a stay, even though the wife contested its validity: but the wife’s lawyers had taken steps in the Israeli proceedings which were virtually a submission. In Hong Kong, in L v H (unrep., HCMP 2213/2007, [2007] HKEC 2129) (21 November 2007), Rogers V-P, refusing the husband’s leave to appeal from Judge Chan’s refusal to stay proceedings in favour of Germany, said, at [10], that the terms of an ante-nuptial agreement, if adhered to, would involve a grave injustice to the wife.”

12.The legal principles set out in above cases are well established.

C.  Background

13.P is an Indian national at the age of 51 years. He attended university studies in the USA in 1990. R was also born in India and emigrated to the USA when she was around 7 years old. She is now a USA citizen, aged 54.

14.The parties met in the USA while they were working for an international financial company. They were married in August 2000 at New Jersey, following a religious ceremony in India. They have 2 children (the “Children”), now at the age of 19 and 11. The Children are US citizens.

15.The parties relocated from the USA and moved to Asia in May 2002 where P was employed to work. They moved to Japan in 2002. The elder daughter (“L”) was born in Tokyo in 2006.

16.In 2007, the parties bought an apartment in Singapore (“SG Property”).  When P moved to Hong Kong for work in May 2008, R and L followed and moved to Hong Kong. In August 2008, P was made redundant. They continued to stay in Hong Kong for a while to look for job and have gone to Bangkok in December 2008 for a short stay due to the lack of financial means.

17.In around August 2009, P secured a contract position at N(HK). The parties and L went to India before P began his job in September 2009 in Hong Kong.

18.In December 2009, P was offered a full time role at N(Singapore).  R and L joined P in Singapore. Their younger daughter (“N”) was born in Singapore in June 2013.

19.In January 2017, P signed a contract with N(Singapore) and N(HK) for his secondment to Hong Kong. He started to work in Hong Kong in March 2017.  P said that he arranged with his employer for his first year in Hong Kong on a secondment basis extendable every quarter because the Children, who continued to study and live in Singapore, were relying on P’s employment pass in Singapore for their stay.

20.In May 2017, P started a lease at Four Season Place Hong Kong.  It is P’s case that this has been his place of residence in Hong Kong to date. He produced a letter from the leasing manager of Four Seasons Place dated 5 July 2024 confirming P’s stay with them for the periods of 15 May 2017 to 10 March 2022, 21 January 2023 to 6 February 2023 and 8 September 2023 to 1 January 2025 in different rooms.

21.P said that the parties’ relationship further deteriorated since about 2010. In June 2013, R raised divorce to him. She raised the topic again in 2016.

22.In June 2017, the parties signed a document in manuscript (“2017 Document”).  P treated this document as a “Termination Agreement” to formalise the separation and to record their agreement on the division of financial assets and care arrangements relating to the Children in readiness for their divorce proceedings. R treated this document as a “Trust/Reconciliation Document” as part of their reconciliation attempt.  It is not necessary to determine the nature of this document in this application, neither had the court heard any submission on this point.

23.In July 2017, P moved to Hong Kong and continued to work for N on secondment basis for the reason mentioned above. He travelled regularly between Hong Kong and Singapore to visit the Children. While he was in Singapore, he stayed in the SG Property but in separate bedrooms.

24.H produced employment contracts dated 18 September 2017, 25 October 2017 and 27 March 2018 for the extension of his secondment to Hong Kong.

25.In July 2018, L’s school sponsored the stay of R and the Children in Singapore. On 24 July 2018, P signed a direct employment contract with N(HK) taking the role of Managing Director.

26.P obtained a work visa to stay in Hong Kong on 14 February 2019 until 7 March 2022. In 2021, his work visa was extended to 7 March 2028 under the “top talent pass scheme”.

27.In July 2019, R moved to New Jersey with the Children.  The Children attended private school in New Jersey. R commenced employment there in August 2021.

28.P said that he wanted to proceed with divorce when they moved to New Jersey in 2019, but he did not do so because L was having a hard time coping with the move from Singapore to New Jersey.  P visited the Children in New Jersey regularly, and has been paying R monthly support of US$12,600 (around HK$98,280) for her and the Children.

29.The Covid-19 pandemic affected P’s travel since about early 2020. Instead of working in Hong Kong, P stayed in Singapore from February 2022 to August 2023 because Singapore’s quarantine requirement for travellers was more relaxed.

30.P’s employer filed a return with the Hong Kong Inland Revenue Department in April 2022 reported that P would be leaving Hong Kong on about 1 May 2022 for transfer to Singapore.

31.In 2022, the parties sold the SG Property and shared the sale proceeds pursuant to the 2017 Document. P, who was in Singapore in 2022, engaged a law firm there to handle the divorce.  R challenged Singapore court’s jurisdiction to hear their divorce. The parties had engaged in without prejudice discussions but no agreement was reached.

32.P moved back to Hong Kong in 2023. He signed an employment contract with N(HK) dated 8 June 2023 in which it was stated that his new home base is Hong Kong.

33.In April 2023, P and his girlfriend registered a company in Hong Kong which operates a retail business here.

34.He travelled to London and Europe from November 2023 to December 2024 as he was given additional responsibilities to oversee the business in London and Europe.  He admitted that he spent more time on business matters in London and other major cities in Europe during this period. He said he would spend more time in Hong Kong this year.

35.After P presented the Petition on 12 April 2024, the Petition and related documents were sent to R by email on 25 April 2024, and by courier to her New Jersey residence on 26 April 2024. R was personally served with the divorce proceedings on 16 May 2024.

36.On 3 May 2024, R commenced the New Jersey Proceedings. P filed a Notice of Motion to dismiss the New Jersey Proceedings in June 2024.

37.R filed the Summons in this court on 3 July 2024 seeking a stay or dismissal of the present proceedings.

38.Both parties filed their affirmation evidence. An expert report on New Jersey laws prepared by the single joint expert (“SJE”) dated 20 January 2025 was lodged (“SJE Report”).

D.  P’s substantial connection with Hong Kong

39.In issue is P’s connection with Hong Kong. As this court’s jurisdiction under section 3(c) of MCO would be invoked by either one of the parties having substantial connection with Hong Kong as at the date of the Petition, it is not necessary to consider R’s connection with Hong Kong. The parties did not contend that R has substantial connection with Hong Kong at the date of the Petition.

40.The question of substantial connection is fact sensitive. The conclusion should be reached after evaluating all the factors holistically in the factual context of the case. Surrounding factors such as their past pattern of life, whether Hong Kong was treated as the home base, the place where the Children lives and study are relevant. The connecting factors do not confined solely to that of a family context. There is no comprehensive list exhausting all the relevant factors, nor is there any mechanistic formula directing how much weight is to be attached to a particular factor. The connection as at the date of the Petition must be substantial.  The onus of proof is on P.

41.The parties agreed that P’s residence status is one factor but is not conclusive.  P submitted that his status of having been accepted in the “top talent pass scheme” reinforced his substantial connection with Hong Kong. P submitted (which was not disputed by R) that the visa under this scheme are only granted to people who have been resident in Hong Kong for at least two years. P was granted 6 years of stay extended from 2022, as opposed to the general work visa that lasts for only 36 months.

42.On the facts agreed by the parties, the family used to move to the place where P was employed, for example they moved to Tokyo in 2006, to Hong Kong in 2008, to Singapore in 2009. It appeared that they were part of foreign expatriate community while staying in these countries. The nature of P’s work required frequent travel.

43.In March 2017, P moved to work in Hong Kong by secondment arrangements with his employer because of the necessity to sponsor the Children’s visa in Singapore for continuation of their studies there.  P produced Hong Kong salaries tax assessments issued by Inland Revenue Department for the years 2018/2019 to 2021/2022 evidencing his tax payments in Hong Kong.

44.The execution of the 2017 Document showed at the very least that they had problem in their relationship at that time. R moved to New Jersey with the Children in 2019.

45.P worked in Hong Kong until he moved to Singapore for the period of February 2022 to August 2023. P said this was a temporary arrangement to cope with the stringent quarantine requirements in Hong Kong during the period of Covid-19 pandemic.

46.Ms Chan, counsel for R, argued that the transfer to Singapore was not intended to be a temporary arrangement. She relied heavily on the return filed by P’s employer with the Hong Kong Inland Revenue Department in April 2022, in which it was stated that P would be leaving Hong Kong on about 1 May 2022 for transfer to Singapore.  In answer to the question whether P (the employee) would return to Hong Kong, the employer ticked the box of “No/Very unlikely”, instead of the box “Yes, probable date of return is …”.  

47.As evidenced by the employment letter issued by N(HK) on 8 June 2023 and accepted by P on 14 June 2023, P was relocated to Hong Kong in 2023. His employer was N(HK).  P was required to be based in Hong Kong, which was stated to be his new home base. The contract specified that he might be required to travel within Hong Kong or overseas as N(HK) may request from time to time. His employment with N(Singapore) ceased on the date when P commenced employment with N(HK). With this development, the argument on whether or not the 2022 transfer to Singapore was intended to be temporary is otiose.

48.P admitted that between November 2023 and December 2024, he spent more time on business matters in London and other major cities in Europe because he was given additional responsibilities to oversee the business in London and Europe.  Notwithstanding the travel, he was employed by a Hong Kong entity with Hong Kong as his home base at the time of the Petition (April 2024). He also said that he would spend more time in Hong Kong this year.

49.He maintained a place of residence in Four Seasons Place in Hong Kong. Apart from this, he had not rented any long term apartments or hotels elsewhere in the world. He stayed in hotels when travelled for work in other places. The SG Property which was used as the family’s residence while they lived in Singapore was sold in 2022.

50.His salary was paid into his Hong Kong HSBC account. It appeared that he also has bank accounts in the UK and Singapore.

51.He had significant earnings sourced in Hong Kong. By reference to his tax returns, his annual income during the period from 2018/2019 to 2021/2022 were between HK$7.5 million and HK$18.8 million. His income for the year of 2023/2024 was HK$4.8 million.

52.He paid taxes in Hong Kong for the years 2018 to 2022 and 2023/2024. He incurred Singapore tax for February 2022 to August 2023 while he worked in Singapore. He also incurred a tax liability for the time he worked in London from November 2023 to December 2024 for secondment. He said that his UK tax would be met by his employer and it was his personal liability.

53.The following table and summaries prepared by Ms Booth, counsel for P, from the data in P’s travel records indicated the number of days and nights in Hong Kong from 2019 to the date of the Petition:

Year	Days in HK	Percentage	Nights in HK	Percentage
2019	178	48.77%	146	40%
2020	331	90.44%	325	88.8%
2021	282	77.26%	279	76.44%
2022	9	0.02%	8	0.02%
2023	101	27.67%	90	24.66%
2024 until 14-04-2024	19	18.1%	16	15.24%

54.There are a total of 1931 days for the period from 2019 to the date of Petition (14 April 2024). According to this table, P stayed in Hong Kong for 920 days (47.64%) and 864 nights (44.74%) during this period. If the period of Covid-19 is excluded, the percentage is higher.

55.P invested in a Hong Kong company together with his girlfriend. This company operates retail business in Hong Kong. Its Business Registration Certificate stated that the commencement date was 14 April 2024, 2 days after the presentation of the Petition.  P said that his girlfriend moved from New Zealand to Hong Kong in 2018 to cohabit with him.

56.P regularly had meals, attended events, participated in activities and travelled with a group of close friends in Hong Kong. He has other friends he met up with on a regular basis in Hong Kong. 

57.He is on the waiting list for membership of Ladies Recreation Club in Hong Kong. R said that he appeared to have joined an exclusive private members’ club in London called “George”.

58.His primary doctors, whom he has been seeing since 2020, including his GP and cardiologist, are in Hong Kong.

59.Weighing these factors holistically in the context that P was an expatriate in Hong Kong and his job required frequent travels, I am of the view that at the date of the Petition, P has a substantial connection with Hong Kong where he treated as his home base. The jurisdiction of this court under section 3(c) of MCO was invoked.

E.  Forum non conveniens

60.As it was held in SPH v SA, the question in a stay application on the ground of forum non conveniens is whether there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of an action, i.e. in which the action may be tried more suitably for the interests of all the parties and the end of justice.

61.To answer this single question, the court will go through the following three-stages. See SPH v SA, Rambas Marketing Co LLC v Chow Kam Fai David [2001] 3 HKC 250 at 253I to 254G.

62.The first stage is to consider whether R (the party seeking the stay) has established that:

(1)  Hong Kong is not the natural or appropriate forum; and

(2)  New Jersey is a forum clearly or distinctly more appropriate than Hong Kong.

63.Failure to establish the above is fatal to the stay application. 

64.If R established the above two matters, it will then move on to second stage where P shall establish that he will be deprived of a legitimate personal or juridical advantage if the action is tried in New Jersey.

65.If P established that he will be so deprived, at the third stage, the court will balance the advantages of having the action tried in New Jersey with the disadvantages that P may suffer.

66.The court focuses on the trial of the action when assessing the appropriateness of the forum. It is not sufficient for a party to merely show that there is another equally competent jurisdiction to deal with the dispute. It must be shown that the other forum is clearly and distinctly more appropriate. Mere convenience is not sufficient. The emphasis is upon “appropriate” but not “convenience”. See Nan Tung Bank Ltd v Wangfoong Transportation Ltd [1999] 2 HKC 606, Rambas Marketing.

67.In Rambas Marketing, Recorder Ma SC (as he then was) observed that at the stage of considering whether there is another forum clearly or distinctly more appropriate than the Hong Kong courts:

“The burden is on the defendant to show that the courts of Nevada are clearly or distinctly more appropriate than the Hong Kong courts for the trial of the action. Mere convenience is not enough nor is it enough simply to point to factors which connect a case or the parties to any particular jurisdiction. The approach in forum non conveniens applications is not just an exercise in loading up with factors which point 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. This would in part explain the need to identify the particular court in favour of which the action is to be stayed, for it is to the appropriateness of that court for the trial that the court’s attention is directed.”

(emphasis in bold added)

68.P is entitled to bring the action in Hong Kong as of right, a place with competent jurisdiction (as I have found) to hear this case: SPH v SA. 

69.R’s application for a stay on the ground of forum non conveniens is not a challenge to the court’s jurisdiction as such. It is an application to ask the court, in the exercise of its jurisdiction, to stay the matter in favour of an alternative jurisdiction: Rambas Marketing at 253E.

70.Is the New Jersey court clearly and distinctly more appropriate to hear the trial of this action than Hong Kong court?  The answer is no.

71.In respect of the main suit, I have found that this court has jurisdiction. Ms Chan said that P was served with the New Jersey Proceedings before she was served with the Hong Kong Petition. I cannot see how the timing of service has a bearing on the appropriateness of the forum. It is also of note that on the evidence, R was notified of the Petition prior to her being served personally.

72.There is no issue of recognition of a Hong Kong decree by the New Jersey courts.  The SJE opined that:

“New Jersey courts will recognize a Hong Kong divorce decree if the Hong Kong court had proper jurisdiction, the parties both participate in the proceedings with counsel and the determinations made by the Hong Kong court do not violate any of New Jersey’s public policy”.

73.On ancillary relief matters, R submitted that New Jersey is the most appropriate forum for “valuing assets, obtaining discovery, and examining witnesses”[1], as well as considering the issues of US tax. She referred to the SJE’s opinion that alimony is taxable income to the recipient for New Jersey state tax purposes and tax deductible by the payor of alimony for New Jersey state tax purposes. The qualified deferred compensation plans and Qualified Domestic Relations Order in the USA are matters needed to be considered on the issue of ancillary relief.

74.The parties’ assets listed in the schedule prepared by R mainly comprise Hong Kong and overseas bank balance, stock/shares and pensions, as well as 2 landed properties in India and Portugal.

75.The Hong Kong family courts regularly deal with cases involving valuation of these types of overseas assets and cases with foreign tax implication.

76.This was acknowledged by the Court of Appeal in DGC v SLC nee C [2008] HKFLR 160:

“The family courts in Hong Kong have vast experiences in dealing with cases of an international dimension. Many involved the large expatriate community in Hong Kong whose assets are located both in Hong Kong and overseas. The Hong Kong courts regularly deal with the valuation of overseas properties and make orders thereto.”

77.There are well established procedures in Hong Kong for discovery and witness examination. The requirements of full and frank disclosure are in force here. R has not provided any evidence on how the New Jersey courts would deal with discovery and witness examination that make them a more appropriate forum than Hong Kong courts.

78.Moving to the children matter, R raised the difficulty in enforcement of Hong Kong child custody order in New Jersey because the Children’s “home state” is in New Jersey. According to the SJE, the New Jersey courts apply the “Uniform Child Custody Jurisdiction and Enforcement Act” under which,

“any custody determination should be made by the New Jersey courts. If it is not, [R] can challenge and seek to set aside any determination made by the Hong Kong Court on an interim or final basis and it is unlikely that a custody or parenting time order (or judgment) entered by the court in Hong Kong will be recognized or enforced by the New Jersey courts.”

79.P submitted that this is a non-issue as the parties have no disagreement on the issue of custody, care and access. L is at the age of 19. Since the parties separated, the Children are living with R. There is no dispute on P’s access to the Children.  R did not raise any intention to vary the existing arrangements for custody and care of the Children.

80.R further raised that it is easier for P to travel to attend hearings in New Jersey but it is difficult for her to travel to Hong Kong for the purposes of attending court hearings, especially she has to attend to the care of N on a daily basis.

81.This is a matter of convenience, not appropriateness.  Conducting remote hearings in the family court is not unusual. With the Courts (Remote Hearing) Ordinance came into effect on 28 March 2025, there is a legal framework for the court to make orders on remote hearing. This addresses R’s concern on her difficulty to fly to Hong Kong to attend court hearings.

82.R has not shown that New Jersey is a forum clearly or distinctly more appropriate than Hong Kong to deal with the main suit, ancillary relief and children matters in the parties’ divorce. This disposes of the stay application without the need to consider the question of any depravation of juridical advantage. 

F.  Juridical advantage

83.For completeness, I agreed with Ms Booth’s submission that P risks losing the following juridical advantages should the matter be tried in New Jersey.

84.Firstly, the advantage of applying the clean break principle in resolving the dispute on financial matters upon a divorce. It is stated in the SJE Report that “[f]or marriages more than twenty years in length, the [New Jersey] court will usually award open durational alimony”. 

85.The likelihood of an award of open-ended continuing spousal maintenance in New Jersey is a potential disadvantage to P whereas in Hong Kong, the parties might have a resolution achieving a clean break. 

86.Secondly, the advantage of full and frank disclosure requirements in Hong Kong proceedings.  There is no evidence on discovery procedures in New Jersey.  Ms Booth submitted that it can be confirmed that neither party will suffer any prejudice insofar as financial transparency is concerned in Hong Kong, on the evidence before this court, the same cannot be said of the court in New Jersey.

87.Thirdly, the advantage of financial dispute resolutions hearings (and if necessary, children dispute resolution hearings) as part of the procedures of the Hong Kong courts. There is no evidence that the New Jersey court system has comparable procedure.

88.The availability of dispute resolution hearings are juridical advantage under the Hong Kong system.  This affords the parties opportunity to resolve their disputes by settlement without the need to incur further time and costs on litigation. 

G.  Disposition

89.By reasons of the above findings on jurisdiction and the argument on forum non conveniens, Paragraphs 1 to 5 of the Summons were dismissed.  There is no reason to depart from the usual starting point of costs follow the event.  I make an order nisi that the costs of this application be paid by R to P on party and party basis with certificate for counsel, to be taxed if not agreed.

90.I thank counsel for their helpful assistance.