Mn v. Da

FCMC 11253/2023

[2026] HKFC 72

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 11253 OF 2023

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REASONS FOR DECISION AND DECISION ON COSTS

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A.  The application, background, procedural history and hearing

1.These proceedings were commenced by petition for divorce filed on 29 September 2023 (“Petition”) by the Petitioner (whom I shall refer to as the “Wife”) against the Respondent (whom I shall refer to as the “Husband”).

2.By summons filed on 30 October 2023, the Husband applied for a stay of these proceedings (i) pending the determination of the proceedings in India under HMA Case No. 667 of 2023 in the Court of Mr. Jagdeep Sood, Additional District Judge, Chandigarh, India or (ii) on the grounds that India rather than Hong Kong is the forum conveniens for proceedings relating to matters arising from the parties’ marriage and the children of the family; or (iii) until further order of the court.

3.The said HMA Case No. 667 of 2023 refers to the divorce proceedings commenced by the Husband against the Wife by petition filed on 31 July 2023 in Chandigarh, India (“Indian Proceedings”). The Husband’s application before this Court is thus essentially for a forum non conveniens stay in favour of India (“Forum Application”). In the same summons, the Husband also applied for an interim stay of these proceedings pending the determination of his Forum Application.

4.By Order dated 12 January 2024, Master J. Chow granted the interim stay and gave directions on evidence for the Forum Application. The interim stay applied to an application taken out by the Wife for maintenance pending suit (“MPS”) by summons filed on 5 January 2024 (“MPS Summons”).

5.The Husband filed his 1^st and 2^nd affirmations in support of the Forum Application, whereas the Wife filed her 2^nd affirmation in opposition. As I shall explain below, the Forum Application turned heavily on certain matters under Indian law. By Order dated 22 May 2024, HHJ T. Kwan granted leave for the parties to each adduce evidence by one Indian matrimonial law expert on the issues set out in an agreed list of Indian law issues.

6.The substantive hearing of the Forum Application was supposed to come before this Court on 14 October 2025 (with 3 days reserved). The parties’ respective Indian law experts were granted leave to give evidence at the hearing by browser-based video conferencing facility (“VCF”).

7.However, just before the hearing, the Wife applied by summons dated 13 October 2025 for leave to file and serve an affidavit of her current solicitor. In the said affidavit, it was explained that the Wife’s current solicitors were provided with the audio recordings of two conversations between the Wife and the Husband’s expert, Mr Anil Maholtra (“Mr M”), which took place in March 2024. The transcripts of those conversations were exhibited.

8.The Husband’s solicitors were provided with the audio recordings on 6 October 2025, under a cover letter where the Wife’s solicitors stated that Mr M had produced an expert report advancing views contrary to those previously expressed to the Wife, which raised serious issues regarding his impartiality and fairness of the process.

9.By a letter dated 8 October 2025, the Husband’s solicitors drew attention to the Case Management Hearing (“CMH”) before HHJ T. Kwan on 22 May 2024 when the issue about the Wife’s prior contact with Mr M was raised.

10.The transcripts of the audio recordings were provided to the Husband’s solicitors on 10 October 2025 and to this Court on 13 October 2025.

11.On 13 October 2025, the Husband’s solicitors informed the Wife’s solicitors of the Husband’s position that Mr M’s report could not be relied upon due to a conflict of interests.

12.On the next day, being the first day of the substantive hearing (which was attended by both parties personally and their respective counsel and solicitors), the Husband’s counsel applied for adjournment of the hearing so that the Husband may engage a new expert. The application was opposed by the Wife, whose position was that the Court should proceed to hear the Wife’s expert’s evidence alone if the Husband decided not to rely on his expert’s evidence.

13.At the time, the Wife’s application to file her solicitors’ affidavit to raise the issue regarding Mr M was not accompanied by any explanation from the Wife as to why she did not produce or inform the Court of the audio recordings at the CMH on 22 May 2024 or anytime thereafter until the subject was raised in correspondence on 6 October 2025.

14.Absent such explanation (which was all the more necessary given the lateness of the application) and given that expert evidence was expected to play a central role in determining the Husband’s Forum Application, I decided that it would be in the interests of justice for the Court to have expert evidence from both parties for resolution of the matter. I therefore granted an adjournment of the hearing to 9 February 2026 (with 3 days reserved), to allow the Husband to engage a new expert.

15.As I noted in my ex-tempore ruling on 14 October 2025 to adjourn the hearing, it was of course highly unsatisfactory and concerning that Mr M never disclosed his prior discussions with the Wife, whether in his report or otherwise. As accepted by the Husband’s counsel, the audio recordings reveal that Mr M had advised the Wife on tactics in India and Hong Kong and on Indian law, which plainly put him in a position of conflict.

16.With the above matters in mind and upon an undertaking from the Wife to explain the delay regarding her application on 13 October 2025, I reserved my decision on costs, including the costs of the adjournment and the costs of and consequential upon the Husband’s engagement of a new expert. I shall deal with the issue of costs below.

17.Following the above, the Husband engaged a new expert, whose report was dated 26 December 2025. The Husband’s new expert, as well as the Wife’s expert, were given leave by this Court to testify via VCF at the adjourned hearing.  

18.On 29 January 2026, the Court provided the VCF link intended for use by the Husband’s expert and reminded the Husband that his expert had to attend a pre-testing scheduled on 30 January 2026.

19.Meanwhile, the Wife applied by summons filed on 22 December 2025 for legal costs provision (“LCP”) against the Husband for inter alia her legal representation at the adjourned hearing. The Husband filed a Notice to Act in Person on 9 January 2026. He was later represented by counsel at (but personally absent from) the hearing on the Wife’s LCP application before HHJ T. Kwan on 22 January 2026.

20.HHJ T. Kwan ordered the Husband to pay the Petitioner a monthly sum of HK$45,000 to be backdated to the date of the Petition until the month of the hearing of the Forum Application, that is from 29 September 2023 to February 2026 (i.e. 30 months) in the total sum of HK$1,350,000. Such payment was to be made in two instalments, the first to be paid in the sum of HK$675,000 on or before 29 January 2026, the second in the sum of HK$675,000 on or before 6 February 2026 (“LCP Order”).

21.The Husband had sought to contact the Court’s clerk by email since the LCP Order. On 29 January 2026, the Husband stated inter alia in email that:

(1)  “I am currently travelling for personal and business reasons in Europe which was planned well in advance”;

(2)  “The court has sent me the VCF link, and a testing is scheduled for 30^th January 2026 for hearing of 9^th-11^th February 2026. However, since I am in Europe it is very unlikely that I can attend the test due to the time difference”;

(3)  “I don’t want to spend any more money and time on this, my expert will not be attending the hearing. I will submit a short submission on the 2^nd Feb 2026 as expected by the Honourable court”.

(4)  “Finally, I neither have anything to say nor ask from petitioner’s expert. I don’t have any expectation from the upcoming hearing. Sitting in front of the camera for three days listening to the Petitioners Counsel assassinate my character with lies and manipulations will not only be disturbing but it can further deteriorate my mental and physical health”.

22.The Husband’s expert did not attend the pre-testing scheduled on 30 January 2026.

23.On 5 February 2026, the Husband by email asked the Court to confirm “if [he] could attend this hearing using this VCF already provided for [his] expert”. He further stated that: “As I am representing myself and my expert will not be joining since I cannot afford to pay such huge sum for my lawyers in HK or for experts to attend. This is due to Her Honour Judge T. Kwan has ordered such huge sums of money to be paid to the petitioner and her lawyers in such a short period of time”; and that “I will be attending this hearing from 9^th-11^th. I was not able to do the pre-test because I am in a different time zone. Please confirm if I will still be able to use this VCF for the hearing”.

24.On 6 February 2026, the Husband stated inter alia in email that: “I am in Portugal endorsing my Golden Visa and applying for Citizenship for my daughters which the petitioner was supposed to do together with me as she was the one interested in getting an EU citizenship”.

25.Meanwhile, the Husband filed a Notice to Act in Person on 5 February 2026. By summons filed on 4 February 2026, he applied for leave to appeal against the LCP Order.

26.On 6 February 2026, I issued the following directions (based on what was known to the Court at the time):

(1)  The Court has not given leave for the Husband to attend the hearing on 9 to 11 February 2026 by VCF. The Order dated 14 October 2025 only gave leave to the parties’ expert witnesses to give evidence at the adjourned hearing by VCF. The parties’ personal attendance at the hearing is required.

(2)  It any event, it would not be technically possible for the Husband (whom the Court understands to be in Thailand) to use the VCF link intended for his expert witness (who is in India).

(3)  The hearing will proceed as scheduled on 9 February 2026.

(4)  The parties are reminded that they should not communicate with the Court by email or facsimile and should not write to the Court unilaterally.

27.On 9 February 2026 (i.e. the first day of the hearing), I was told that the Husband was waiting to be admitted remotely to the hearing via the VCF intended for use by his expert. Indeed, I subsequently learned that the Husband sent an email at 10:06am to the Court’s clerk to say he was at the remote waiting room and request to attend by VCF. Upon further verification with technical staff, I was given to understand that it might be technically feasible for the Husband to be admitted, subject to going through a pre-testing.

28.I should note at this juncture that the Husband’s conduct had put the Court and its staff in a difficult position. The Husband never properly applied, and was never given leave, to attend the hearing by VCF. He was expressly reminded of this on 6 February 2026, and he could and should have made arrangements to return to Hong Kong to attend the hearing on 9 February 2026. But he chose to defy the Court’s directions and attempted to attend the hearing remotely via the VCF link which was not intended for him. The Court and its staff are not supposed to be at a party’s disposal for his personal convenience.

29.I should also add that even if the Husband had made a formal application to attend by VCF, it was far from certain that I would have allowed the same. The adjourned hearing was fixed back on 14 October 2025, when the Husband attended court in person and was represented by counsel and solicitors. There was no indication that he would be unavailable for the adjourned hearing. It is unclear why he should later see fit to travel, purportedly for “personal and business reasons”, during the period of the adjourned hearing (see §21 above).

30.In the circumstances, I did not see any basis to admit the Husband into the hearing. The Wife’s counsel also made oral submissions to oppose his request to be admitted. However, for the reasons stated below, I stood down for a brief period and gave the Husband a last opportunity to attend as per the directions below (issued by the Court by email at 10:23am):

(1)  As noted in the Court’s previous directions, the Husband has not been given leave to attend by VCF. He has also not made any proper application to attend by VCF.

(2)  The Court notes that the Husband was using the VCF link intended for his expert to seek admission to the hearing this morning. This is highly unsatisfactory, given point (1) above.

(3)  However, mindful of the fact the Husband now acts in person, the Court will, on an exceptional basis, permit the Husband to use the said VCF link to sign in and go through a pre-testing with a view to attending the hearing virtually. If the Husband does not do so by 12:10pm today (9 February 2026) (HK time), or if the pre-testing is unsuccessful, the hearing will continue in the Husband’s absence.

31.I was given to understand that, by the time these directions were issued, the Husband was no longer waiting for admission remotely. For the aforesaid reasons, however, I was minded to give him a last opportunity to join the hearing even though he had no entitlement at all to the same. A short timeframe was imposed as the Court also had to act fairly towards the Wife and her expert and to minimise any further delay and disruption to the proceedings.

32.The hearing resumed at around 12:10pm and I was given to understand that the Husband had not responded by the stipulated deadline. I proceeded with the hearing as directed, and dismissed the Husband’s Forum Application with reasons and decision on costs to be handed down later. I further gave leave for the Wife to file short submissions on costs and her proposed directions for the further conduct of the proceedings.

33.I was subsequently informed that the Husband emailed the Court’s clerk at 12:20pm (HK time) to state that he just noted the Court’s directions and ask to be allowed to join the hearing. He emailed again at 1:07pm (HK time) to say that he “will try again after the lunch break of HK at 2:30PM HK Time”. As these requests came after the deadline imposed, I saw no reason to reopen the matter.

34.To avoid any misunderstanding, I issued the following directions by email to the Husband in the afternoon of 9 February 2026:

“The Court reiterates that the Respondent has not been given leave to attend the hearing by VCF, nor has he ever made any proper application to do so. The Respondent was given a final opportunity to sign in using the VCF link intended for his expert witness by 12:10pm today (Hong Kong time) for a pre-testing, but did not do so. The hearing proceeded as per the Court’s directions. At the hearing, the Court dismissed the Respondent’s application by Summons dated 30 October 2023, with reasons and decision on costs to be handed down in due course.

The Petitioner has leave to file a set of short submissions on the costs of the Respondent’s application and her proposed directions for the further conduct of these proceedings by the morning of 11 February 2026. The Court will give further directions then for the Respondent to file his response.”

35.The Wife filed a set of 5-page submissions and two statements of costs on 11 February 2026 pursuant to the Court’s direction. On the same day, the Court granted leave for the Husband to file and serve submissions in reply and any objection to the Wife’s statements of costs, limited to 7 pages in total, on or before 27 February 2026. By email to the Court’s clerk dated 12 February 2026, the Husband said inter alia he acknowledged the Court’s directions. The Husband submitted his response to the Wife’s submissions and his statements of costs by email on 25 February 2026. This was again done in defiance of my direction that the parties should not communicate with the Court by email. Be that as it may, I have considered the Husband’s response in arriving at my decision on costs in Section C below.

B.  The Forum Application

36.It is trite that the burden to justify a forum non conveniens stay rests on the applicant. As explained by the Court of Final Appeal in SPH v SA (2014) 17 HKCFAR 364 §§50-52 (citing DGC v SLC (née C) [2005] 3 HKC 293 §§10-11 (Cheung JA)):

(1)  The single question to be decided is whether there is some other available forum, having competent jurisdiction, which is the appropriate forum of the trial of the action, i.e. one 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 (i) Hong Kong is not the natural or appropriate forum (“appropriate” meaning the forum that has the “most real and substantial connection with the action”) and (ii) there is another available forum which is clearly or distinctly more appropriate than Hong Kong.

(3)  If the applicant is able to establish both of these matters, then the respondent 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 respondent is able to establish this, the court will have to balance the advantages of the alternative forum with the disadvantages that the applicant 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.

37.Factors which the Court will take into account in assessing whether the proceedings have a real and substantial connection to Hong Kong include (but are not limited to) (1) whether the parties’ matrimonial home is in Hong Kong, (2) their past pattern of life, (3) whether they regard Hong Kong as their home, (4) the place of work of the spouses, (5) whether children are studying in Hong Kong or (if studying abroad) spending vacations in Hong Kong: RI v SSH [2010] 4 HKC 590 §4 (Cheung JA).

38.As explained above, the Husband had without good reason failed to appear at the substantive hearing of his own Forum Application. This alone should entitle the Court to dismiss his application.

39.In any event, I took into account the fact (as mentioned above) that Indian law expert evidence played a central role in this Forum Application. In summary:

(1)  It is undisputed that the parties were married in India under the Hindu Marriage Act, 1955 (“HMA”).

(2)  It is the Husband’s case that under Indian law, the marriage can only be dissolved under the HMA. A Hong Kong decree of divorce on the ground of “irretrievable breakdown of marriage” under s.11 of the Matrimonial Causes Ordinance (Cap 179) would not be recognised in India. If the parties were to divorce in Hong Kong, they would continue to have the status of being legally married in India, with all corresponding obligations and liabilities. This is the foremost reason put forward by the Husband as to why the divorce proceedings should be determined in India.

(3)  On the other hand, the Wife’s position is that her Petition filed in Hong Kong, based on unreasonable behaviour, is akin to a petition based on cruelty under the HMA, and would be recognised and enforced in India.

40.This issue as to the recognition and enforceability of a Hong Kong divorce decree in India is squarely one of Indian law, involving the proper understanding and interpretation of the HMA and Indian case law. The Husband, as applicant of the Forum Application, had the burden of establishing the correctness of his position on this issue. However, he did not arrange for his Indian law expert to attend and testify at the hearing. Indeed, well before the hearing, the Husband already announced that he did not want to spend any more money and time on the matter and his expert would not be attending the hearing. He further said he had neither anything to say nor ask from the Wife’s expert (see §21 above).

41.I note that the Husband had claimed he could not afford to pay for his expert to attend the hearing due to the LCP Order made against him (see §23 above). However, his contention was not contained in any affidavit or affirmation. More importantly, his alleged financial difficulty was not supported by any objective evidence which he should be in a position to place before the Court had there been any credence to his contention. I therefore did not accept that the Husband had any reasonable basis not to call his expert.

42.Since the Husband did not tender his expert for cross-examination, it would be neither fair nor proper for the Court to attach any weight to his expert’s report. It follows that the Husband fails to discharge his burden to establish his case on the Indian law issue in support of his Forum Application.

43.For completeness, there was nothing else in the parties’ factual evidence which shows that the India is a clearly or distinctly more appropriate forum than Hong Kong. To the contrary, I noted the following matters (which are undisputed or indisputable):

(1)  On the Husband’s own affirmation evidence, he and the Wife moved to Thailand shortly after they married. They then moved to Hong Kong in April 2001 for the Husband’s new job.

(2)  The two children of the family were born respectively in March 2003 and March 2005 in Hong Kong. They were raised and educated in Hong Kong until the elder child pursued college education in the United States and the younger child attended university in Canada.

(3)  The parties became Hong Kong permanent residents.

(4)  The parties bought and sold various properties in Hong Kong over the years, including the former matrimonial home which was purchased in April 2014.

(5)  The Wife worked as a kindergarten teacher in Hong Kong until July 2023.

(6)  On the Husband’s evidence, he was given an opportunity to relocate to the United States through his employer in 2017 but ended up working remotely whilst maintaining his role with the US company “because both [the Wife] and [he] wanted to provide stability to the Children and [they] decided to remain in Hong Kong until the completion of the Children’s high school education”.

(7)  The Husband took up employment with his company in Thailand and decided to move there in summer 2023.

44.I note the Husband’s evidence that before his relocation to Thailand in 2023, he spent more than 50% of a year travelling for work except during Covid. He also claimed that the family did not consider Hong Kong as their long-term home. But even assuming (without deciding) for present purposes that these contentions were true, they do not detract from the fact – as evidenced by the matters in the preceding paragraph – that the parties’ matrimonial life was centred around Hong Kong. It is particularly significant that the Husband himself said he declined to relocate to the United States to provide stability to the children. This supports the Wife’s case that the family had a stable and settled life in Hong Kong.

45.For the above reasons, I dismissed the Forum Application.

C.  Costs

46.With the dismissal of the Forum Application, costs should generally follow the event and be awarded to the Wife (save as the costs thrown away by the Husband’s engagement of Mr M, which I shall address below). The Wife further asks for costs on an indemnity basis. The Husband disagrees and asks that costs be awarded to him instead.

47.I have carefully considered the Husband’s submissions and do not see any basis for him to seek costs against the Wife. The Husband accused the Wife of “forum shopping”. I do not see any justification for that when the Wife only ever commenced divorce proceedings in Hong Kong. The Husband also accused the Wife of “expert shopping” and “blocking” his experts. Again I am unable to accept these, when (1) the materials before the Court show that the Wife did not engage Mr M due to costs concern rather than expert shopping, (2) the Husband (via his counsel) accepted that Mr M had a conflict of interests, and (3) it was the Husband who decided not to call his new expert. The Husband has raised various other points. It will not be fruitful to deal with each and every of them. Suffice it to say that I have considered them and reject them as being unmeritorious.

48.Turning to the costs associated with the Husband’s engagement of Mr M, I have now reviewed the transcript of the CMH before HHJ T. Kwan. I note that while the Wife’s former solicitor who attended the CMH on her behalf initially objected to the Husband’s proposed engagement of Mr M on the basis that the Wife had had prior communications with Mr M, the solicitor then twice confirmed to the Court that if Mr M considered his independence was not affected, the Wife had no objection. At no point at CMH did the Wife inform the Court through her solicitor of the specific content of the prior communications or the existence of the audio recordings. Indeed the audio recordings were produced only shortly before the October 2025 hearing.

49.Had the Wife maintained her objection against the Husband’s engagement of Mr M and produced the audio recordings at the CMH or at least shortly afterwards, Mr M would not have been permitted to be the Husband’s expert and the adjournment of the October 2025 hearing could have been avoided. Having said these, I do not lose sight of the fact that Mr M was indeed conflicted, and that necessitated a replacement expert on the Husband’s side and hence the adjournment. There is nevertheless no evidence before the Court to suggest that either the Husband or his legal team had knowledge of the specific content of Mr M’s conversations with the Wife (which disclosed the serious conflict) prior to the production of the audio recordings.

50.Considering all the above matters and adopting a broad-brushed approach, a fair outcome would be for there to be no order as to the costs thrown away by the Husband’s engagement of Mr M, which include the costs of the October 2025 hearing.

51.Subject to the above, I am of the view that the Husband should bear the costs of his (now dismissed) Forum Application. I further take the view that the Husband should pay for the costs of and occasioned by the February 2026 hearing, including the costs incurred for the preparation and attendance by the Wife’s legal team and expert, on an indemnity basis. The Husband has in my view acted wholly unreasonably and irresponsibly in not calling his new expert and not personally attending the hearing. He should have known that his Forum Application would fall to be dismissed if his expert did not attend to testify and be cross-examined. His belated indication of not calling his expert and his insistence on proceeding with the Forum Application wasted the Wife’s costs as well as the Court’s time and resources.

52.Given my ruling above, I shall direct the Wife to file a revised statement of costs to reflect the costs that I allow at the relevant scales to facilitate summary assessment.

D.  Orders and Further Directions

53.By reason of the above, I order that:

(1)  The Husband’s Forum Application be dismissed;

(2)  The Husband do pay the Wife the costs of and occasioned by the Forum Application, to be assessed on a party and party basis if not agreed, save and except that:

(a)  There be no order as to the costs thrown away by the Husband’s engagement of Mr M, including the costs of the October 2025 hearing; and

(b)  The Husband do pay the Wife the costs of and occasioned by the February 2026 hearing, including the costs incurred for the preparation and attendance by the Wife’s legal team and expert, to be assessed on an indemnity basis if not agreed;

(3)  The Wife do file and serve a revised statement of costs of no more than 7 pages to reflect the costs allowed by this Court at the relevant scales within 7 days; and

(4)  The Husband do have leave to file and serve a statement of objection of no more than 7 pages to the Wife’s revised statement of costs within 7 days thereafter.

54.To progress the conduct of this case, I further direct that:

(1)  The Wife’s MPS Summons of 5 January 2024 be restored and fixed for a directions hearing on the earliest available date in consultation with Counsel’s diaries;

(2)  The Husband do file and serve his sworn Form E within 21 days;

(3)  The Husband do file and serve his affirmation in opposition to the Wife’s MPS Summons within 21 days;

(4)  The Wife do have leave to file and serve her affirmation in reply within 14 days thereafter.

Ms Madeleine Booth, instructed by Messrs. Lewis Silken, for the Petitioner

The Respondent was not represented and did not attend the hearing