Kclm v. Gw

FCMC 8151 / 2024

[2026] HKFC 92

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8151 OF 2024

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BETWEEN

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DECISION
(Leave to Appeal – paper disposal)

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1.This is the Petitioner’s application for leave to appeal against my decision handed down on 20 March 2026 (“the Decision”):

BACKGROUND

2.The background of this case has been set out in the Decision at paragraphs 3 to 7. I shall not repeat the same. I shall adopt the same abbreviations used in the Decision.

THE LAW

3.Section 63A(2) of the District Court Ordinance provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

4.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.

5.In Ho Yuen Ki Winnie and anor v Ho Hung Sun Stanley and anor, HCMP 1009/2009, (unrep), Le Pichon JA (as she then was) stated at paragraph 16 of the judgment: -

“For leave to be granted, this court must be satisfied that the appeal has ‘reasonable prospects of success’. Merely showing that the appeal is ‘arguable’ and ‘not fanciful’ would not be sufficient. In my view, ‘reasonable prospects’ requires something more and, in that regard, some assistance may be derived from the test applied when setting aside a default judgment.”

6.In KNM v HTF, HCMP 288/2011, (unrep), Fok JA (as he then was) stated at paragraph 9: -

“The relevant test of whether an appeal has a reasonable prospect of success under section 63A 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’”.

(See also the case of SMSE v KL [2009] 4 HKLRD 125)

INTENDED GROUNDS OF APPEAL

7.The Wife raises 4 intended grounds of appeal in the draft Notice of Appeal (“Draft Notice”). I summarize the particulars of the intended grounds of appeal as follows (the Wife’s headings of the intended grounds of appeal are retained in the summary below):

1) Ground 1: Error of law in respect of section 16(1)(e) of the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap 639) and its impact on Part IIA of Matrimonial Proceedings and Property Ordinance (Cap 192).

a) The Wife repeats her arguments made at the substantive hearing of the Husband’s Stay Application. She now further argues the Court has no jurisdiction to permit registration by reason of the “mandatory set-aside” nature of the section 16(1)(e) Cap 639.

2) Ground 2: Hong Kong is the more natural and appropriate forum

a) The Wife repeats her arguments made at the substantive hearing of the Husband’s Stay Application. Moreover, the Wife criticizes the weight being given to a number of factors such as location of witnesses, the enforceability in Hong Kong of any judgment to be given by the Beijing Haidian Court, and whether the Beijing Haidian Court will deal with the parties’ assets.

b) The Wife also asserts the Court has given insufficient weight to a number of factors such as the domicile of the Wife and children, the presence of substantial assets in Hong Kong and that section 16(1)(e) Cap 639 would bar the enforceability of any judgment made by the Beijing Haidian Court.

3) Ground 3: Errors in Stages 2 and 3 analysis on loss of juridical advantages.

a) The Wife essentially disagrees with the findings in the Decision relating to whether similar mechanisms or procedures are available in PRC.

4) Ground 4: Error in the overall balancing exercise and ends of justice.

a) The arguments made by the Wife under this intended ground of appeal are a repetition of her arguments already made at the substantive hearing of the Husband’s Stay Application.

8.I have considered the parties’ submissions and the Draft Notice. I do not intend to answer each and every submission made by the parties. Suffice to say I have considered the same in reaching my decision. I shall only deal with the salient points raised.

9.I shall now briefly deal with each intended ground of appeal raised by the Wife.

Intended Ground 1

10.My analysis of the Wife’s arguments relating to the application and effects of section 16(1)(e) Cap 639 are extensively set out in paragraphs 47 to 68 of the Decision. I do not repeat the same. Hence in so far as the Wife seeks to repeat the same arguments, I do not repeat my reasoning.

11.I shall also add that the wording of the stay (as granted in the Decision) answers the Wife’s argument about being perpetually married in the event the Husband refuses to register the decree of divorce. As can be seen at paragraph 98(2)(b) of the Decision, the Hong Kong proceedings will not be dismissed until the decree of divorce is registered AND the time for setting aside the same has expired.

12.I therefore do not accept that the Wife’s arguments on this intended ground of appeal to have reasonable prospects of success.

13.However, I recognize there has been no decided authority on:

1) The interpretation, application and effect of section 16(1)(e) Cap 639 on Part IIA MPPO proceedings; and

2) The question of whether, despite the lack of any application by parties to set aside a registration, the said section operates as a mandatory stay depriving this Court of the jurisdiction to adjudicate Part IIA MPPO proceedings.

14.It is clear that any interpretation of Cap 639 has far reaching implications on a substantial number of divorce cases now filed with the Family Court. Since there is no authority from the appellate court on the proper understanding of the said staying provisions set out therein, it would be in the interest of justice for the Wife to seek guidance from the appellate court on the proper understanding of such provisions.

15.I therefore agree with the Wife that this would constitute “other reasons in the interest of justice” on which leave to appeal should be granted on Intended Ground 1.

Intended Ground 2

16.My reasoning relating to whether Hong Kong is the more appropriate and natural forum are set out in paragraphs 26 to 45 of the Decision. I have answered the salient arguments made by the Wife at the substantive hearing, which are now repeated in her Draft Notice.

17.The Wife’s argument about the alleged inconsistency in my reasoning relating section 16(1)(e) Cap 639 and paragraph 42 of the Decision is, with respect, misconceived. I have extensively explained in my Decision the operation of section 16(1)(e) Cap 639 in so far as it relates to the how the Hong Kong courts would deal with a PRC decision. The reasoning at paragraphs 40 to 42 relate to how the Beijing Haidian Court will deal with a Hong Kong decision and whether the same can be enforceable in the PRC.

18.As for the Wife’s assertion that this Court has erred in finding that the beneficial interest of the DC Companies is not disputed, I find this argument perplexing. I had already summarized the Wife’s position relating to the DC Companies as per her Form E in paragraph 6 of the Decision. Section 5.4 of the Wife’s Form E specifically states the following:

“5.5 Give details of any other circumstances which you consider could significantly affect the extent of the financial provision to be made by or for you or for any child of the family, including but not limited to earning capacity, disability, inheritance prospects, redundancy, cohabitation plans, and any contingent liabilities.

…

Being being [sic] the spouse of the Respondent and even though I have been heavily involved in the operations and management of the HK Listco, as explained below, I am not a director or a shareholder of the [DC China Companies]. This was a deliberate arrangement, as the Respondent and I would like to deliver a professional image to the public (i.e., we do not want the [DC China Companies] to be perceived as a 'family business'). However, it was always intended and it has been the common understanding between me and the Respondent that the [DC China Companies] is our business and the source of the family's wealth to be shared between us. . . .”

19.I fail to see and/or understand how the Wife can allege, in her intended grounds of appeal, she agrees on the beneficial interest of the 03**** and 55**** in view of what she stated in her Form E.

20.For reasons given in the Decision and supplemented herein, I fail to see any reasonable prospects of success in this intended ground of appeal. I also do not find other reasons in the interest of justice to grant leave to appeal on this intended ground of appeal.

Intended Grounds 3 and 4

21.My analysis of Stages 2 and 3 of the test set out in SPH v SA [2014] 3 HKLRD 497 at paragraphs 46 to 93, of which I shall not repeat. Hence in so far as the Wife’s arguments are the same as those raised at the substantive hearing, I shall not further elaborate on my reasoning.

22.As for the Wife’s submissions on whether the various interlocutory relief or procedural applications available under PRC law are comparable to those available in Hong Kong, it is trite to say the PRC system would not be identical to the Hong Kong system. Hence in my analysis I have opined that there are similar mechanisms and such mechanisms are sufficiently similar such that the Wife would not suffer any juridical disadvantage.

23.In so far as the Wife submitted my reasoning at paragraph 80 of the Decision is without evidential basis (that is, the PRC court’s power of investigation is much more extensive than that of the Hong Kong courts), I disagree. I do not repeat my reasoning therein. It is clear from the Expert Report the PRC courts are obligated to conduct investigations and that the relevant departments and units are obligated to provide assistance. This power of investigation is clearly more extensive that the powers of the Hong Kong for the following reasons:

1) The Hong Kong courts are only able to make orders for discovery against limited parties. The Hong Kong courts do not carry out investigations on its own initiative or obtain its own evidence. The Hong Kong courts, being common law based, rely on adversaries to provide it with the relevant evidence.

2) Save an except where any third party discovery application is granted against the government, Hong Kong courts cannot mandate other government departments or units to assist on any discovery related investigation. Furthermore, other government departments or units are not obligated to assist the Hong Kong courts in any family litigation discovery.

24.I therefore see no merit in the Wife’s submission relating to paragraph 80 of the Decision.

25.Having considered the Wife’s intended grounds of appeal 3 and 4, I find there to be no reasonable prospect of success and no other reasons in the interest of justice to grant leave to appeal on the said intended grounds of appeal.

SUMMARY

26.For reasons set out above, I grant leave to appeal on the Intended Ground 1 of the Draft Notice on the basis that there are other reasons in the interest of justice to do so.

27.I refuse leave to appeal on intended Grounds 2, 3 and 4.

28.I make costs order nisi that the costs of the Petitioner’s application for leave to appeal be in the cause of the appeal hearing, to be determined by the Court of Appeal. Unless any party applies to vary the costs order nisi within 14 days hereof, the costs order shall become an order absolute.

Ms. Anita Yip S.C. and Ms. Lily Yu instructed by Rita Ku & Ser for the Petitioner

Mr. Adrian Leung and Ms. Julie Lam instructed by K. C. Ho & Fong for the Respondent