Cymy v. Ykke

FCMP 142 / 2024

[2025] HKFC 190

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 142 OF 2024

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D E C I S I O N

( Leave to appeal )

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1.This is the application taken out by the Respondent for leave to appeal against my judgment dated 9 June 2025[1] (“Judgment”) with Corrigendum dated 16 August 2025, in which I dismissed his application to challenge the Family Court’s jurisdiction with costs.

Legal principles

2.Section 63A(2) of the District Court Ordinance provides that for leave to appeal to be granted, the intended appeal should have a reasonable prospect of success or there should be some other reasons in the interest of justice why the appeal should be heard.

3.A reasonable prospect of success involves the notion the prospect must be more than fanciful without having to be probable.

Ground 1

4.Ms Booth for the Respondent argued that I erred in law in concluding that the Family Court had jurisdiction in respect of the Applicant’s Originating Summons asking for a guardianship order of 2 minors habitually residing in the PRC. Mr Chan for the Applicant relying on Bennion on Statutory Interpretation (8^th Ed., pg. 203) submitted that “whether an English statute applies extraterritorially depends on its construction” and that in Hong Kong, the jurisdiction of the Family Court under the GMO is also a matter of statutory construction as confirmed by the CFA in QMY v GSS (2017) 20 HKCFAR.

5.I consider that Ms Booth was simply repeating her submissions which have been dealt with by me in the Judgment. I accept Mr Chan’s submission that the CFA in QMY’s case having carefully considered Bennion and other relevant authorities concluded that the Family Court had jurisdiction to entertain any applications issued under the GMO, whether the applicant is applying for a maintenance order, guardianship order or any other application under the said statute. The fact that the 2 minors habitually residing in the PRC is at most one of the factors to be considered by the court under the legal principles on forum non conveniens, but not a matter of statutory construction of the GMO.

6.I have to reiterate that if the legislature intends to impose some restrictions on the Court’s jurisdiction, like section 3 of the MCO, Cap 179, section 29AE of the MPPO, Cap 192 and section 6(2) the PCO, Cap 429, it needs to expressly state in the particular statute. As said by the CFA in QMY’s case, the Family Court have no discretion to decline jurisdiction under the GMO other than on forum non conveniens principles.

7.I consider that this ground has no merit and reasonable prospect of success.

Ground 2

8.Ms Booth argued that the Hong Kong court is not a proper forum as the guardianship order made under the GMO by the Hong Kong court is not enforceable in PRC. Apart from Re Willoughby’s case adopted in QMY’s case, Mr Chan for the Applicant citing Lai v Ling [2017] 5 HKLRD 629 rightly submitted that the CA granted the custody to the petitioner father in that case even such custody order was not enforceable in PRC at that time.

9.In my view, the fact that the order made by the Hong Kong court is not enforceable in PRC is at most one of the many factors, but never be the conclusive one, to be considered under the forum non conveniens principles.

10.I consider that this ground has no merit.

Ground 3

11.Ms Booth contended that as the SJE confirmed that the civil affairs department, the residents’ committee or villagers’ committee could act as guardian, they have competent jurisdiction.

12.The first principle on forum non conveniens is whether there is some other available forum having competent jurisdiction in which the action may be tried more suitably for the interests of all the parties and the ends of justice. I disagree that even though the civil affairs department, the residents’ committee or villagers’ committee could lawfully act as guardian according to SJE’s opinion, they can be regarded as having competent jurisdiction to try the matter or dispute.

13.As said in §57 of the Judgment, “Regarding the PRC courts in Xing Yang City, Ms Booth for the Respondent fairly conceded that this court shall not take into consideration as only Zhongshan Court but not Xing Yang Court is mentioned in the R’s Summons….”, the Respondent was all along arguing that the Zhongshan Court has the competent jurisdiction, but not the civil affairs department etc, in his summons.

14.I consider that this ground has no merit.

Grounds 4 to 8

15.Ms Booth repeated most of her submissions concerning the due weight to be put by the court under the forum non conveniens principles. I have dealt with them in the Judgment and shall not repeat here again.

16.In short, the Zhongshan Court is not a competent jurisdiction at the material time since the 2 minors have not yet residing there for more than a year. That is never challenged by the Respondent. It is fatal to his application. Besides, it is well known that the appellate court may only interfere the exercise of discretion by the lower court in limited circumstances (see §22 of DP World Djibouti v China Merchants Port Holdings Co. Ltd. [2022] HKCA 84).

17.All these grounds have no merit.

Conclusion

18.To conclude, the Respondent has failed to demonstrate any reasonable prospect of success in his intended appeal and there is no other reason in the interests of justice why the appeal should be heard. His application for leave to appeal should be dismissed.

19.For his application for stay of execution, I am of the view that the appeal, even if successful, would not be rendered nugatory even if there is no stay of execution. He may now apply to the Zhongshan Court or other appropriate PRC court for the guardianship order if so advised by his own lawyers. However, in the best interest of the 2 minors, the Hong Kong court shall not delay in dealing with the Applicant’s application for the guardianship order. Hence, his application for stay must be dismissed.

20.Regarding the question of costs, there is no reason why costs shall not follow event. The Applicant has lodged her statement of costs claiming about $102,489. I consider excessive and order that costs of this application summarily assessed at $68,000 be paid by the Respondent forthwith.

Mr Albert Chan instructed by C.Y. Tsang & Co., Solicitors for the Applicant

Ms Madeleine Booth instructed by Oldham, Li & Nie., Solicitors for the Respondent