Ymli v. Ltys also known as Lsty also known as Lst
Read the full judgment text of FCMC 10591/2024 on BabelCite. This Family Court judgment was delivered on 17 October 2025 before Deputy District Judge W. Y. Ho.
Matrimonial Causes Ordinance (Cap 179) s.3 – forum non conveniens – stay of proceedings – jurisdiction – Jersey Trust – remote hearing – District Court – divorce proceedings – appropriate forum – costs order – Whether England clearly more appropriate forum – Whether personal circumstances relevant at Stage 1 – Whether asset location makes England more appropriate – Whether length of proceedings makes England more appropriate – Application refused. Costs to Petitioner.
Legal issues: Proper approach to Stage 1 of forum non conveniens test · Whether Hong Kong is the natural forum · Whether England is clearly and distinctly the more appropriate forum regarding assets · Whether England is clearly and distinctly the more appropriate forum regarding length of proceedings
Outcome: Application for stay of proceedings and declaration refused. Husband's summons dismissed.
Cites 11 cases
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FCMC 10591 / 2024 [2025] HKFC 151 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 10591 OF 2024 ----------------------------
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____________________________________________________ DECISION ( Stay of Proceedings and Declaration (forum) ) _____________________________________________________ 1.By way of a summons dated 25 November 2024, the Respondent (“the Husband”) made an application for the following relief:
2.I set out the following salient background facts below. 3.The Husband is 86 years old and the Petitioner (“the Wife”) is 65 years old. The parties began dating in or around 1982. According to the Wife, she would occasionally spend time at the Husband’s home since in or around 1985. The Husband has not confirmed or denied this. His evidence is that the parties’ relationship up until 1990 was very casual. The parties were subsequently married in Hong Kong in 2004. The Husband claims he was mostly living abroad due to work commitments and spent limited amount of time in Hong Kong during the duration of the parties’ marriage. 4.The parties’ children were born before marriage: the eldest son was born in 1998 and the youngest son was born in 2002. Both sons were raised and educated in Hong Kong during their primary and secondary school years. Upon completion of secondary school, both sons left for USA to attend university. 5.On 4 October 2024, the Wife filed for divorce in Hong Kong. The Husband filed his divorce application in England on 4 November 2024 (“the English Divorce Proceedings”). Both parties have been served with the respective divorce applications. The Husband’s legal representatives inform this court the Wife has taken out an application for stay of the English Divorce Proceedings. The hearing of the Wife’s application for a stay of proceedings is fixed before Mr. Justice Trowell in the High Court of England and Wales, to be heard on 27 October 2025, with 5 days reserved. THE LAW 6.I shall set out the relevant legal principles relating to the jurisdiction of this court and forum non conveniens. 7.Section 3 of the Matrimonial Causes Ordinance (Cap 179) (“MCO”) states the following:
8.The principles of forum non conveniens, in the context of matrimonial proceedings, are set out in the Court of Final Appeal’s decision in SPH v SA [2014] 3 HKLRD 497 as follows:
9.I shall refer to the three-stage test set out in DGC v SLC (née C) [2005] 3 HKC 293 by reference to Stage 1 to 3 in my analysis below. DISCUSSION 10.The Husband does not dispute Hong Kong courts have jurisdiction over the current divorce proceedings initiated in Hong Kong. The Husband’s main argument is whether England is clearly and/or distinctly the more appropriate forum to litigate the present divorce proceedings. A. Summary of Parties’ submissions 11.I shall not repeat each and every submission made by the parties’ respective counsel. Suffice to say, I have considered their submissions in reaching my decision. I shall summarize the salient arguments made by both sides below. 12.In summary, the Husband submits England is clearly and distinctly the more appropriate forum for the following reasons:
13.Needless to say, the Wife strongly contests the Husband’s present application. In summary, the Wife argues that the submissions made by the Husband are irrelevant in the court’s determination of whether England is the distinctly more appropriate forum. Moreover, the Wife claims the Husband’s submissions and assertions are not supported by evidence. 14.The parties’ counsel are in disagreement as to how the court should approach and consider the issue of whether England is the more appropriate forum. Ms Yip SC argues that all the factors must be considered holistically in reaching the decision and relied on, inter alia, the case of Limbu v Dyson Technology Ltd [2025] ICR 560. 15.Counsel for the Wife, Mr Man SC, argues Ms Yip SC’s suggested approach is misconceived. He submits the court should not engage in a balancing exercise until the Husband is able to show England is clearly and distinctly the more appropriate forum. He concludes the submissions relating to the Husband’s personal circumstances are irrelevant for the purposes of considering which forum is the clearly and distinctly more appropriate forum. 16.I set out below my reasoning on the proper approach to be adopted. B. The proper approach to be adopted and whether the Husband’s personal circumstances are to be considered at Stage 1 of the test 17.In considering Stage 1 of the test, the Husband must prove that Hong Kong is not the natural and appropriate forum for the present divorce proceedings AND that England is the clearly and distinctly the more appropriate forum. In other words, Stage 1 is a 2-part test. 18.In order to determine whether Hong Kong is the natural and appropriate forum of the present divorce proceedings, this court must determine whether the present proceedings have a real and substantial connection to Hong Kong. This requires the court to consider whether the matrimonial life was conducted in Hong Kong. 19.A summary of the underlying considerations on whether Hong Kong is the natural and appropriate forum is succinctly set out by Cheung JA (as he then was) in the case of RI v SSH [2010] 4 HKC 588 at paragraphs 2 and 4 of his judgment:
20.The second part of Stage 1 requires the Husband to prove England is clearly and distinctly the more appropriate forum. The factors to be considered must be relating to the subject matter itself. One must differentiate the factors that connect to the dispute and those that point to injustice if the dispute is litigated in a particular jurisdiction. The former (being factors that connect the dispute) are relevant in considering whether a particular jurisdiction is the more appropriate forum. However, the latter (being factors that point to injustice) is only relevant to Stage 2 and 3 of the test, that is, when the court must consider whether any loss of personal juridical advantage warrants the refusal of stay of proceedings. 21.I find support for my analysis above in the case of Butler v Butler [1997] 2 FLR 311 at page 333, where Lord Justice Ward cited the judgment of Lord Goff of Chieveley in de Dampierre v de Dampierre [1988] 1 AC 92, [1987] 2 FLR 300 and stated the following:
22.In so far as Ms Yip SC argues the Husband’s personal circumstances should also form part of the court’s holistic analysis, I am of the view the answer is found in the case of Butler v Butler [1997] 2 FLR 311 at 320 where Lord Justice Roch stated:
23.The same is reiterated by Ng J in the case of Elite Consortium Ltd v Yim Wan Por [2022] HKCFI 3303 at paragraph 35 and 36 of his judgment which reads as follows:
24.I accept that, as general principles of justice would dictate, if there were factors that point to a real risk of denial of justice by granting or refusing the stay of proceedings application, the court should consider the same and ensure any decision would not deny any party of justice. I agree with the paragraph 23 of Lord Justice Popplewell’s judgment in Limbu v Dyson Technology Ltd [2025] ICR 560 in which he stated the following:
25.However, this is not a carte blanche for parties to stack personal factors against each other and ask the court to disregard the three-stage approach laid down by the leading authorities of DGC and SPH. I believe such considerations are more appropriately classify as matters to be considered at Stage 2 and 3 of the test, not at Stage 1. 26.Hence, by reason of my analysis set out above, I am of the view the Husband’s attempt to group all factors together (including those relating to the personal circumstances of the Husband) as being relevant to the Stage 1 of the test is, with respect, erroneous. I am of the view that factors connected to the dispute are those that should be considered when deciding whether England is clearly and distinctly the more appropriate forum. Factors that are related to possible injustice caused by personal circumstances are only relevant at Stage 2 and 3 of the test. C. Stage 1 (i) Whether the parties’ matrimonial life has real and substantial connection to Hong Kong 27.The Husband contends the situs of matrimonial life is not in Hong Kong and this is supported by the fact the couple do not own a matrimonial home in Hong Kong. Moreover, the Husband claims that he did not cohabit with the Wife before their marriage, and he mostly stayed in England for the duration of the parties’ marriage. 28.Having considered the evidence, I am of the view it is plain and obvious the majority of the parties’ matrimonial life was conducted in Hong Kong. The parties were married in Hong Kong and the Wife has always been living in Hong Kong. Their sons grew up in Hong Kong and were educated in Hong Kong just before they left to the USA for tertiary education. The fact that the Husband travels abroad frequently does not take away from the fact that the family spent their family life in Hong Kong. Although I accept that the family would spend some time in England (for example, during school holidays), this cannot detract from the fact that the family was based in Hong Kong. I am of the view that there is simply no evidence to support the Husband’s claim that the situs of the parties’ matrimonial life was somewhere else other than Hong Kong. I also note that although the Husband disputes the situs of matrimonial life being in Hong Kong, he does not positively claim the situs of matrimonial life was in England. This then begs the following question: if the Husband disputes the situs of matrimonial life is Hong Kong, where does he say the situs of the matrimonial life to be? Having perused the Husband’s affirmations, his evidence provides no answer to this question. Once one looks at the Husband’s contention in this light, it is obvious the plain answer is that the parties’ matrimonial life was conducted nowhere other than in Hong Kong. (ii) The parties’ respective domicile 29.In so far as the Husband argues he is now domiciled in England, I am of the view this submission is a neutral factor in the present analysis. In the present case, the parties are domiciled in different countries. One party’s domicile is no more advantageous than the other party’s domicile. The Wife is clearly domiciled in Hong Kong and brought this action as of right in Hong Kong. In such a circumstances, the parties’ domicile is not determinative of which jurisdiction is the clearly and distinctly more appropriate forum. (iii) Location of assets and the ability of the courts to deal with the assets. 30.Ms Yip SC agrees to the proposition I have set out in my judgment of WSN v BOM [2024] HKFC 191, that is, that the location of assets in itself is not a determining factor. However, Ms Yip SC argues that the location of the assets in England means any division of assets will be subject to complicated tax implications. Such tax implications will have significant impact on the valuation and proper division of those assets in the ultimate ancillary relief trial. 31.I find no merit in this argument. Firstly, the Husband has chosen not to adduce any expert evidence to support his argument. There is no expert evidence before me to show the extent of purported complications in the valuation of the Husband’s assets and there is no evidence to support the Husband’s contention that the Hong Kong courts cannot resolve the same by relying on expert evidence. Furthermore, there is no evidence before me to prove what complex tax issues are involved, the extent of the complexity of such issues, how the said issues (if any) it would arise in the present proceedings, and why the Hong Kong courts are unable to deal with the same via foreign law expert evidence. It is trite to say that Hong Kong courts are frequently tasked with valuation of overseas properties and/or assets. There is simply no reason or evidence put forward to explain why the Hong Kong courts cannot deal with the same. 32.The other main argument by the Husband is that since most of the Husband’s assets are settled in the Jersey Trust, the English courts are more experienced and the more appropriate forum to consider the same. Extensive submissions were made on the complexity of Jersey law, which would impact the enforcement of any trust property division. I shall not repeat the said submissions. Suffice to say I have considered such submissions in full. 33.Firstly, with respect, I find the submissions made about the ability of Hong Kong courts to deal with complex legal issues arising from Jersey law and the Jersey Trust to be condescending of the Hong Kong courts, to say the very least. 34.Hong Kong courts have long been handling complex and diverse financial arrangements between litigants, including complex trust arrangements. I find it difficult to understand on what empirical evidence or basis the Husband concludes the English courts are more apt in handling issues relating to Jersey trusts than that compared to Hong Kong courts. 35.Both the English courts and Hong Kong courts would require expert evidence on Jersey law when considering the division of the Husband’s assets. I fail to see how the Hong Kong courts are especially disadvantaged compared to the English courts. 36.As stated by the Hon Anthony Chan in the case of ING Bank NV v Industrial and Commercial Bank of China Limited [2024] HKCFI 2220 at paragraph 36(7) of the judgment:
37.I agree with Mr Man SC that any issue relating to foreign law can be dealt with by foreign expert evidence and there is no particular advantage or disadvantage suffered by either the England or Hong Kong courts in this regard. 38.I therefore do not accept the Husband’s submissions in this regard. 39.Second, I am of the view Ms Yip SC’s general submissions on Jersey law are of no assistance to this court in determining the specific circumstances of this case. There is no expert evidence on the specific complexities arising from the Husband’s Jersey Trust. The lack of any expert evidence means this court is not in a position to assess how such complexities, if any, would impact the present divorce proceedings in Hong Kong. It is not sufficient for the Husband merely to produce copies of legislation and academic literature to show possible foreign issues the Husband seeks to rely on. If the Husband seeks to persuade this court there are complicated issues of foreign law that make England the more distinct and appropriate forum, this court must understand the legal issues involved and the impact such legal issues may have on the present proceedings. Without the assistance of a foreign law expert, Ms Yip SC is effectively asking the court to speculate on the complexities she submits. This is highly unsatisfactory especially when HHJ Liu, in her letter to the parties dated 12 March 2025, had already reminded the parties that they should adduce foreign law expert evidence if necessary. I set out her note to the parties as follows:
40.Third, as with all international element cases, the point of foreign valuation is at best neutral. This is because if the proceedings were to be conducted in England, the English courts would also have the task of determining foreign assets, i.e. the Hong Kong assets. Ms Yip SC argues it is particularly difficult to conduct valuation on Jersey trust assets. She further submits that although the Hong Kong courts may be able to decide on appropriate valuations, the English courts are in a better position to do so. 41.Again, this court is not assisted by any expert evidence to show why it is difficult to conduct valuation on Jersey trust assets. There is no evidence to support Ms Yip SC’s submission that the English courts are in a better position to conduct such valuations. Furthermore, there is no evidence to suggest the Hong Kong courts cannot conduct such valuation with the relevant expert evidence. In absence of any evidence to the contrary, I am of the view the Hong Kong courts are equally just as competent as the English court in carrying out the task of valuation of the matrimonial assets, wherever the assets may be located. (iv) Length of proceedings in Hong Kong 42.The Husband claims the English courts are able to dispose of the present case quicker than the Hong Kong courts. 43.I shall deal with this submission succinctly. 44.The progress of any case in any jurisdiction is primarily dictated by the parties’ litigation conduct and not solely by the efficiency of a judiciary alone. If the parties are litigious and engage in satellite litigation, or have a propensity to take out voluminous interlocutory applications, I cannot see how any judiciary, no matter how efficient, can conclude a case within a short amount of time. Cases in Hong Kong can be concluded within a short timeframe if the parties are able to conduct the litigation in an efficient manner. I believe it is fallacious (if not inappropriate) for parties and/or practitioners to anchor their submissions on the efficiency of any judiciary based on the length of time taken to conclude a case without factoring the parties’ litigation conduct, the complexity of the case, and other relevant factors which contribute to the prolonging of litigation. 45.Given the high net worth of the Husband and the extensive location of his vast asset portfolio, I anticipate the parties’ divorce proceedings, wherever it may be conducted, will be highly contentious and involve complex factual and legal disputes. In such circumstances, I fail to see how Ms Yip SC can be certain the English courts will conclude the ancillary relief trial within 18 months. 46.I would also add the fact that the Wife’s application for stay of proceedings is fixed for a 5-day hearing in the High Court of England and Wales (compared to the 1-day hearing fixed in the Hong Kong Family Court) is a clear indication of the complexity of the case. In deciding to fix a 5-day hearing, the English courts must have taken the view the complexity of this case requires 5 days’ of court hearing time just to resolve issues arising out of the Wife’s application for stay alone. In such circumstances, I have grave reservations whether a case of this magnitude could be completed within 18 months in the English courts. 47.Having considered the parties’ submissions, and for reasons set out above, I find the Husband is unable to prove Hong Kong is not the natural forum of the present proceedings. I further find he is unable to prove England is clearly and distinctly the more appropriate forum for the present divorce proceedings. 48.As stated in the case of SPH, the failure of the Husband to establish England as the distinctly more appropriate forum is in itself “fatal” and the court is no longer required to consider Stage 2 and 3 of the test. 49.However, for sake of completeness, I shall add a few words about the extensive submissions on the Husband’s personal circumstances. D. Personal circumstances of the Husband 50.I do not intend to deal with each and every submission under this category made by Ms Yip SC. I shall only deal with the salient points raised. 51.There is no medical evidence adduced by the Husband to prove his health condition is so dire he is unable to travel to Hong Kong or to participate in the proceedings if it were to be continued in Hong Kong. I find this telling. If the Husband’s purported condition were true, the Husband’s team of medical doctors could simply write a report on his health condition. I am not prepared to accept the Husband’s bare assertion of frailty without any medical evidence. 52.In any event, I agree with Mr Man SC that if the Husband found it necessary, he could attend the hearing by way of remote hearing. With the recent enactment of the Courts (Remote Hearing) Ordinance (Cap. 654), the use of remote hearings in proceedings is now entrenched in law. No doubt, the use of remote hearings will be more common and more frequent in the courts of Hong Kong, if not already so. Ms Yip SC mentioned matters about time difference and the right to be present. However, I am of the view those submissions are non-starters. The availability of remote hearings means the Husband’s right to participate in the proceedings is unhindered by time or geographical constraints. If he feels he is unable to travel, he will have the use of technology to enable him to exercise his right to be present at the hearings. As for the complaint about the possibility of needing to wake up in the middle of the night to give evidence, this is not a point in the Husband’s favour. The fact that the parties are living in separate time zones necessarily dictates that one party or the other will experience some inconvenience due to time difference. In any event, Hong Kong courts have in different cases, and where justified by circumstances, sat at non-conventional court hours to take evidence involving international witnesses. I fail to see any merit in the Husband’s complaint. 53.As for the Husband’s purported personal security issues, I am of the view this is not objectively substantiated by the evidence before me. I am of the view the Husband’s subjective feelings of personal safety is irrelevant to the court’s consideration of whether England is the more appropriate forum. In so far as the Husband claims the case would cause a mass media frenzy also contributing to his safety concerns, I am unable to accept such submissions. It is pure speculation whether the Husband’s fame could cause some sort of mass media frenzy to the extent of causing any personal safety concerns. I am not prepared to accept this matter as being relevant in my determination of whether the Hong Kong proceedings should be stayed. 54.Hence, even if I were to consider the Husband’s purported medical condition, his subjective fear of personal safety, and publicity issues, I would still find the Husband unable to prove England is clearly and distinctly the more appropriate forum. Furthermore, I do not find the said matters raised to point to any real or substantial injustice to be suffered by the Husband so as to warrant a stay of the Hong Kong divorce proceedings. SUMMARY AND ORDERS 55.By reason of the matters set out above, I therefore refuse the Husband’s application and dismiss paragraph 1 and 2 of his summons. 56.I see no reason why costs should not follow the event. I therefore make a costs order nisi and other consequential directions as follows:
57.Lastly, I thank counsel for their assistance.
Mr. Bernard Man S.C., Mr. Keith Chan, and Mr. Cedric Yeung instructed by Karas So LLP for the Petitioner Ms. Anita Yip S.C., Ms. Bonnie Cheng, and Mr. Jonathan Fung instructed by Haldanes for the Respondent | ||||||||||||||||||||
Cases cited in this judgment