Tst v. Tjamj also known as Ejamj

FCMC 6190 / 2023

[2025] HKFC 162

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 6190 OF 2023

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DECISION
(Jurisdiction)

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A.  The Application

1.After the parties’ marriage in Germany on 17 December 2004, they moved and lived in various places. In November 2006, they came to Hong Kong, lived and worked here, gave birth to 2 daughters and raised the family here until their separation by agreement in December 2022. The Respondent (“W”) relocated to Germany together with their 2 daughters in late 2022 and the Petitioner (“H”) relocated to Singapore in January 2023. W is a lawyer now working in Germany. H, a banker, is working in Singapore. The daughters (aged 16 and 12) are studying in Germany.

2.On 6 June 2023, 5 months after H left Hong Kong, he presented the petition for divorce in Hong Kong on the ground of unreasonable behaviour.

3.Although the parties had their martial life in Hong Kong for 16 years, all of them have relocated to other countries for at least 5 months prior to the presentation of the Petition. This is crucial to the issue of jurisdiction on the ground of substantial connection as analysed below.

4.H initially relied on section 3(b) of the Matrimonial Causes Ordinance (“MCO”) to establish jurisdiction of this court by reason of the parties’ habitual residence for a period of 3 years immediately prior to the date of the petition. He pleaded in paragraph 3 of the Petition as follows:

“[H] and [W] were habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of this petition……”

5.The facts recited in paragraph 1 above immediately shows that H’s plea of habitual residence is factually incorrect.

6.W took out a Summons on 23 November 2023 to strike out the Petition for want of jurisdiction.

7.In response, H applied to amend paragraph 3 of the Petition and changed the ground from the parties’ habitual residence under section 3(b) of MCO to H’s substantial connection with Hong Kong under section 3(c) of MCO. The amendments were allowed by Master J Chow on 8 March 2024.

8.Paragraph 3 of the Amended Petition reads as follows:

“3. The Petitioner has a substantial connection with Hong Kong as at the date of the Petition. The Petitioner holds a Permanent Hong Kong Identity Card No. [XXX] and the Respondent holds a Permanent Hong Kong Identity Card No. [XXX]. The Petitioner and the Respondent lived and raised a family in Hong Kong from 2007.”

9.W then amended the Summons on 24 April 2024 (“the Amended Summons”) and sought to strike out the Amended Petition for want of jurisdiction because H does not have a substantial connection with Hong Kong as at the date of the Petition. Alternatively, the Amended Petition ought to be struck out as it is frivolous, scandalous and vexatious or otherwise an abuse of process[1], and/or Germany is the forum conveniens to determine the parties’ dispute in their divorce.

10.Both parties cited the legal principles on substantial connection as expounded in ZC v CN [2014] 5 HKLRD 43 and JQ v CLH [2022] HKCA 489. Briefly stated, whether a party has a substantial connection with Hong Kong is a question of fact. H, who has the burden of proof, shall establish not only physical presence in Hong Kong but also a presence not of a transitory nature, and his connection with Hong Kong is substantial. Factors such as the parties’ past pattern of life, the frequency, length and purpose of staying or visiting Hong Kong are relevant, but not exhaustive. The focus is not only on matters in the context of the parties’ matrimonial life, a substantial financial connection may also be relevant.

11.It is crucial to note that section 3(c) of MCO stipulated that a party, who relies on the ground of substantial connection to find jurisdiction, must have a substantial connection with Hong Kong at the date of the petition. It is not sufficient to establish jurisdiction under section 3(c) if the party only has a substantial connection with Hong Kong at any other point in time, but not at the date of the petition.

B.  Only pleaded facts

12.There is a preliminary point on whether H can rely on facts not pleaded in the Amended Petition.

13.Ms Lau, Counsel for W, submitted that H was confined to the particulars pleaded in the Amended Petition. The court should not consider evidence outside the parameters of these pleaded facts.

14.Under Rule 9(9) of the Matrimonial Causes Rules (“MCR”), where a party relied on either of the parties’ substantial connection with Hong Kong at the date of the petition as a ground for jurisdiction, that party shall state in the petition “the facts on which it is alleged that there was such substantial connection with Hong Kong”.

15.Ms Lau referred this court to the following cases.

15.1.  CN v YTW [2020] HKFC 146 where HHJ H. Au-Yeung (as he then was) refused to consider the petitioner’s evidence on the respondent’s strong tie with Hong Kong because the respondent’s connection with Hong Kong was not relied on to establish jurisdiction in the amended petition of that case[2].

15.2.  In 朱v 劉 [2022] HKFC 223, Deputy District Judge Felix Li considered the affirmation evidence only in the context of fitting into the grounds pleaded in the Petition and those grounds alone.[3]

16.The purpose of pleadings is to ensure that the real issues in dispute between the parties are well defined and the other party are informed of all the issues that he has to meet.

17.The Court of Final Appeal in Sinoearn International Ltd v Hyundai - CCECC Joint Venture (2013) 16 HKCFAR 632 §§27 – 34 has reminded legal practitioners that pleadings are not mere formalities. A party must raise in the pleadings all the issues to be dealt with at the trial. The other party is entitled to know from the pleadings the entire case that he has to meet so that proper preparation of the case can be made. This is fundamental to enabling every procedural facet of the adversarial system to operate fairly.

18.The purpose of defining the issues and setting out the true extent of a dispute in the pleadings is not only for the benefit of the other party but also for the court in managing and trying cases. It is the pleadings that define the issues in a trial. The pleaded issues define the scope of the evidence but not the other way round. Hence, it is not acceptable to raise unpleaded issues out of the evidence to be or has been adduced: Wing Hang Bank Ltd v Crystal Jet International Ltd [2005] 2 HKC 638; Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663, §§21 - 27. The above authorities are cases of general civil claims. There is no convincing reason for not applying these principles to pleadings in matrimonial proceedings. The Rules of the High Court (with necessary modifications) apply to matrimonial proceedings: Rule 3 of MCR.

19.The Amended Petition, being a pleading in the present proceedings, serves the same purpose. The principle that unpleaded issues are not permitted to be introduced by evidence equally applies.

20.Hence, on the question of whether H has a substantial connection with Hong Kong at the date of the Petition, the court should only consider the facts and particulars pleaded in the Amended Petition, but not evidence that relates to unpleaded issues. This is reinforced by the statutory requirement under Rule 9(9) of MCR that a party shall state in the petition the facts on which the petitioner relies to show substantial connection with Hong Kong.

C.  Substantial Connection

21.With these principles in mind, I turn to paragraph 3 of the Amended Petition where H pleaded the following:

21.1.  Each of H and W holds a permanent Hong Kong identity card; and

21.2.  H and W lived and raised a family in Hong Kong from 2007.

22.It is well established that a party’s resident status is only one of the many factors for consideration. The holding of a permanent Hong Kong identity card does not, per se, establish the jurisdiction of this court: ZC v CN.

23.The only other fact relied on by H is that the parties lived and raised a family in Hong Kong since 2007.

24.Ms Allison, Counsel for H, heavily relied on the parties’ 16 years of married life in Hong Kong as the ground for opposing the Amended Summons[4].

25.Her reliance on the parties’ past martial life flatly ignores the statutory requirement that substantial connection with Hong Kong shall be established as at the date of the Petition. Although the parties had spent their marital life in Hong Kong for 16 years, they ceased to have such life in Hong Kong prior to the presentation of the Petition in June 2023. As mentioned above, W and the two daughters relocated to Germany in 2022 and H relocated to Singapore in January 2023. H has pleaded in paragraph 4 of the Amended Petition that he resides in Singapore and W resides in Germany.

26.None of the facts pleaded in the Amended Petition supports a finding of H’s substantial connection with Hong Kong at the date of the Petition. It is of note that there is no plea in the Amended Petition of any fact[5] existed after their relocations (or more precisely, as at the date of the Petition) that shows H has a substantial connection with Hong Kong. As such, the Amended Petition ought to be struck out for want of jurisdiction.

27.The above disposes of the Amended Summons.

28.For completeness, I also deal with the other arguments raised by Ms Allison at the hearing on the issue of substantial connection.

29.Ms Allison referred to the other matters such as H’s work, the maintenance of his bank accounts, MPF account and life insurance in Hong Kong after the relocation and argued that H has a substantial connection with Hong Kong notwithstanding his relocation to Singapore.

30.I disagree to Ms Allison’s argument for the following reasons:

30.1.  These facts were not pleaded in the Amended Petition. H has not even attempted to apply for leave to further amend the Amended Petition to include these facts as matters showing his substantial connection.

30.2.  Even if these facts were pleaded, having regard to all the relevant circumstances of the case, H has not established a substantial connection with Hong Kong as at the date of the Petition.

30.3.  As mentioned above, the parties ceased to have any matrimonial related life in Hong Kong prior to the presentation of the Petition. The parties and the family have physically moved to the other countries. They live, work or study in territories outside Hong Kong.

30.4.  It is accepted that a person can have substantial connection with more than one place. This court does not reject H’s argument because he has a substantial connection with Singapore. This court reaches the conclusion after examining the evidence adduced by the parties including those listed below.

30.5.  Firstly, the family used to live in a rented property in Hong Kong. After the tenancy expired in December 2022, H did not rent any property in Hong Kong.

30.6.  Secondly, neither H nor W owns any property in Hong Kong.

30.7.  Thirdly, since H moved to work in Singapore, he relinquished his Hong Kong SFC licences by September 2023. He still held those licences in June 2023 when the Petition was presented[6].

30.8.  Fourthly, H did not visit Hong Kong on the first 6 months of his relocation for setting up in Singapore.[7] In other words, he was not physically present in Hong Kong on 6 June 2023 when the Petition was presented.

30.9.  Fifthly, on H’s own evidence[8], he came to Hong Kong on 4 occasions in the year of 2023 (from August to December 2023) and spent a total of 20 days (5% of the whole year). Two of these visits coincided with the dates for court hearings or intended court hearings. One of these visits (11 days) was to meet his daughters and former friends of his daughters. For the period of January to June 2024, he visited Hong Kong 4 times at a total of 12 days (3% of the whole year). Three of these visits coincided with the dates for court hearings or for execution of affirmation for these proceedings. H said he also worked and met friends while in Hong Kong.

30.10.  Sixthly, H said 90% of his clients resides in Asia evenly divided between Singapore and Hong Kong, and he supervises his team in Hong Kong. As indicated by the dates of his presence in Hong Kong at and around the period when the Petition was presented, H must have done these works substantially outside Hong Kong.

30.11.  Seventhly, H’s alleged intention to return and work in Hong Kong in the future does not assist him. The court looks at his connection at the date of the Petition, but not matters that will happen in the future, let alone there is a lack of evidence to show that such intention will materialise. H admitted that he has no control on the proposed plan to relocate back to Hong Kong.

30.12.  Eighthly, the balance in his Hong Kong bank accounts is minimal. As shown in H’s Form E dated 26 November 2024, the total balance of the joint and sole bank accounts is about HK$257. As at June 2023, the parties’ joint bank account in Hong Kong has a balance of HK$253.18[9], H’s sole name bank account has a deposit of HK$2,678.24 equivalent, and a recurring loan of HK$167,461.15 in debit balance. H also has bank accounts in Singapore, Germany and Switzerland.

30.13.  H maintains his life insurance in Hong Kong. His MPF account is under the name of his current employer and has not been cancelled.

30.14.  The mere fact of his maintaining these accounts and a life insurance in Hong Kong is not sufficient, in the context of the case, to establish substantial connection.

30.15.  Ninthly, the HK$1,000 one-off donation made by H in Hong Kong on 26 October 2023 (whether viewed alone or together with the above assets and financial activity in Hong Kong) cannot be described as showing a substantial financial connection with Hong Kong.

30.16.  Tenthly, I have also taken into consideration of the fact that the parties were expatriate family while living in Hong Kong for more than a decade. H has both English and Swiss nationalities. W has German, South African and Swiss nationalities.

31.I also reject Ms Allison’s argument that Hong Kong was the only place which had jurisdiction over the parties’ divorce at the time of the Petition is a ground for opposing the striking out application[10] because:

31.1.  This is not pleaded in the Amended Petition as a ground for establishing this court’s jurisdiction.

31.2.  There is no evidence to substantiate the assertion. The piecemeal evidence adduced by H about his online research is inadequate and inappropriate to deal with this issue.

31.3.  In any event, the jurisdiction of this court is not established simply because a party has no other place to turn to. The jurisdiction must be established by the grounds set out in section 3 of MCO. A party cannot confer jurisdiction on this court if this court does not have it under the law.

D.  Order

32.As analysed above, this court does not have jurisdiction to deal with the Amended Petition because H fails to prove his substantial connection with Hong Kong as at the date of the Petition. The Amended Petition ought to be struck out, and I so order.

33.There is no reason to depart from the starting point of costs follow the events. I order on a nisi basis that H do pay W’s costs of and occasioned by the Amended Summons to be taxed if not agreed, with certificate for one counsel.

Ms. Sasha Allison instructed by K.B. Chau & Co. for the Petitioner.

Ms. Lorinda Lau instructed by Elsa Law & Co. Solicitors for the Respondent.