Case Document

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FCMC 8557/2025

[2026] HKFC 190

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8557 OF 2025

__________________________________

BETWEEN
	LHB	Petitioner
	and
	ZCZ	Respondent

_________________________________

Coram:

Master G.T. Lung in Chambers (not open to public)

Date of Hearing:	5 June 2026
Date of Decision:	4 September 2026

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DECISION
( Stay of Proceedings, Forum Non Conveniens )

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INTRODUCTION

1.This is the written decision for the application of Respondent Wife (“W”) on 28 October 2025 for stay of proceedings on the ground of forum non conveniens in favour of 廣東省深圳市龍華區人民法院 (the “Shenzhen Court”) (“stay application”) and to seek retrospective leave to take out this stay application out of time.

FAMILY AND CASE BACKGROUND

2.Petitioner Husband (“H”) is 35 years old and W is 36 years old at the time of the hearing.

3.W was born in the mainland and she originated from Chengdu. She came to Hong Kong in 2012 and studied Masters in Chinese University. After W graduated in 2013, W has been working as XXXXXXXXXXXXX in a Hong Kong Insurance Company since then. According to H, W became a Hong Kong permanent resident in 2019.

4.H was also born in the mainland and he originated from Shanxi. He came to Hong Kong in 2014 and finished his PhD studies in 2019. He was employed by a Hong Kong company on technology research and development management since 2020. H became Hong Kong permanent resident in 2020.

5.Parties met in November 2020 in Hong Kong and quickly became lovers, they were married on 18 July 2021 in Hong Kong. Their daughter LYC (the “Daughter”) was born on 30 September 2024 in Hong Kong and is 1 year 8 months old at the time of the hearing.

6.It is undisputed that H left the Hong Kong Former Matrimonial Home in January 2025. H then filed a Petition in Hong Kong on the ground of Unreasonable Behaviour on 27 August 2025. According to W’s Acknowledgment of Service, W received the Petition on 29 August 2025 at Hong Kong Former Matrimonial Home.

7.W commenced divorce proceedings in Shenzhen Court and the case was docketed (立案) on 30 September 2025. W then filed Acknowledgment of Service of H’s Petition on 13 October 2025 and took out this stay application on 28 October 2025. The call-over hearing was heard on 28 January 2026 and a substantive argument hearing was fixed to be heard on 5 June 2026.

8.The Daughter lived in Hong Kong since her birth until W took her to Chengdu on 18 September 2025, which was in between the time H filed the Petition in Hong Kong and W commenced divorce proceedings in Shenzhen Court. H therefore issued an application on 5 November 2025 requesting W to return the Daughter to Hong Kong and for access arrangements. On 28 January 2026, this Court directed W to bring the Daughter back to Hong Kong on or before 11 February 2026. This Court also ordered H be granted interim defined access of the Daughter at the same time.

9.On 26 May 2026, H took out an application for leave to adduce a ruling by Shenzhen Court on 15 May 2026 (“PRC Ruling”). In summary, Shenzhen Court decided it had no jurisdiction on W’s divorce application and dismissed W’s case. On 2 June 2026, W took out the application for leave to use and rely on her 3^rd affirmation to reply on PRC Ruling if this Court grants leave for H to adduce the PRC Ruling during the hearing (“W’s Reply Affirmation on PRC Ruling”). During the hearing, I consider the PRC Ruling and W’s Reply Affirmation on PRC Ruling are both updated materials and is relevant to this stay application, therefore leave is granted to adduce both the PRC Ruling and W’s Reply Affirmation on PRC Ruling.

ISSUES

10.According to Agreed Joint Statement of Issues in Dispute lodged by the parties on 8 May 2026, the issues of W’s application are as follows:

Forum non conveniens

(a)  Whether W’s application for a stay on the ground of forum non conveniens was out of time and, if so, whether retrospective extension of time should be granted to W? (“Issue 1: Retrospective Extension of Time”)

(b)  Whether W can establish that, first Hong Kong is not the natural or appropriate forum and, second there is another available forum which is clearly or distinctly more appropriate than Hong Kong? (“Issue 2: Stage 1 of the Spiliada test”)

(c)  If issue (b) is answered in the affirmative, whether H can establish that he will be deprived of a legitimate personal or juridical advantage if the action is tried in a forum other than Hong Kong? (“Issue 3: Stage 2 of the Spiliada test”)

(d)  If issue (c) is answered in the affirmative, whether, balancing the advantages of the alternative forum against the disadvantages that H may suffer, substantial justice will be done in that forum? (“Issue 4: Stage 3 of the Spiliada test”)

Effect of any earlier agreement or promise

(e)  Whether there was (were) any agreement(s) or promise(s) between the parties regarding the choice of jurisdiction or the proper forum for the dissolution of the marriage? (“Issue 5: Any Agreement/Promise?”)

(f)  If issue (e) is answered in the affirmative, how should such agreement(s) and/or promise(s) affect the analysis on forum non conveniens? (“Issue 6: How agreement/promise affect Forum Non Conveniens”)

(g)  If issue (e) is answered in the affirmative, whether such agreement(s) and/or promise(s) give rise to an estoppel preventing H from pursuing these proceedings in Hong Kong, thereby warranting a stay of these proceedings as a separate ground? (“Issue 7: Promissory Estoppel”)

LEGAL PRINCIPLES

Forum Non Conveniens

11.The legal principles of Forum Non Conveniens are trite. The applicable test is the 3-stage Spiliada test in SPH v SA (2014) 17 HKCFAR 364, paragraph 51:

“1. The single question to be decided is whether there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of an action i.e. 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 first, Hong Kong is not the natural or appropriate forum (‘appropriate’ in this context means the forum has the most real and substantial connection with the action) and second, there is another available forum which is clearly or distinctly more appropriate than Hong Kong. Failure by the applicant to establish these two matters at this stage is fatal.

3. If the applicant is able to establish both of these two matters, then the plaintiff in the Hong Kong proceedings 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 plaintiff is able to establish this, the court will have to balance the advantages of the alternative forum with the disadvantages that the plaintiff 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.”(emphasis added)

12.In summary, W has the burden to demonstrate that Shenzhen Court, not the Hong Kong Court, is the natural and “clearly or distinctly more” appropriate forum to deal with the parties’ divorce proceedings (Stage 1 of Spiliada Test). When W successfully discharges her burden, then the burden is shifted back to H to demonstrate deprivation of legitimate personal or juridical advantage for the matter to be adjudicated in Shenzhen Court (Stage 2 of Spiliada Test). When H is able to establish this, this Court will then have to balance the advantages of the alternative forum with the disadvantages that H may suffer (Stage 3 of Spiliada Test).

Requirements of Promissory Estoppel

13.The parties also did not dispute the elements of Promissory Estoppel as stated in Luo Xing Juan v Estate of Hui Shui See Willy (2009) 12 HKCFAR 1, paragraph 55:

“55. A promissory estoppel may be said to arise where (i) the parties are in a relationship involving enforceable or exercisable rights, duties or powers; (ii) one party (“the promisor”), by words or conduct, conveys or is reasonably understood to convey a clear and unequivocal promise or assurance to the other (“the promisee”) that the promisor will not enforce or exercise some of those rights, duties or powers; and (iii) the promisee reasonably relies upon that promise and is induced to alter his or her position on the faith of it, so that it would be inequitable or unconscionable for the promisor to act inconsistently with the promise.” (emphasis added)

ANALYSIS

Issue 1: Retrospective Extension of Time

14.W admits the time limit for challenging forum was on 25 September 2025. However, W submits Shenzhen Court did not become an available forum until 30 September 2025 when W’s proceedings were docketed there. W also says H’s commencement of these proceedings was an ambush and in breach of parties’ agreement marriage would be dissolved in the PRC, therefore W was taken by surprise upon service of the Petition and being unaware of the time limit under O.12, r.8 of Rules of High Court and prioritized commencing divorce proceedings in Shenzhen Court first. Further, W says the delay was short, she reserved her right to apply for a stay in the Acknowledge of Service filed on 13 October 2025 and took out this stay application before First Appointment Hearing on 5 November 2025, enabling the Court to deal with this stay application as the first matter of these proceedings. Finally, there is no evidence of prejudice to H of this extension of time application.

15.H submits W was 2 months late. W must act promptly upon service. In proceedings involving a young child, delay and uncertainty are prejudicial. H submits this stay application has no reasonable prospect of success, particularly as the Shenzhen ruling confirms it lacks jurisdiction over the divorce.

16.According to W’s Acknowledgment of Service, the Petition was served on her on 29 August 2025 and the deadline for her to file Answer to dispute resolution should be on 25 September 2025 pursuant to rule 18 of Matrimonial Causes Rules.

17.According to LCH v JMC (Forum and Return) [2019] HKFLR 382, paragraphs 90-91, this Court has power to extend the time for W to take out stay application under O.3, r.5 of Rules of High Court. W was delayed for 1 month 3 days in taking out this stay application, and I consider the time is relatively short and the consequences will be too harsh if W is unable to challenge the forum because of this delay. I also accept that Shenzhen Court did not become an available forum until 30 September 2025, and any forum challenge could only have been mounted thereafter. I consider W took out this stay application at her first available opportunity. I further consider the delay did not prejudice H as this stay application was taken out before the 1^st First Appointment Hearing.

18.Therefore, I grant retrospective leave to W to take out this stay application out of time.

Issue 2: Stage 1 of the Spiliada test

Legal principles

19.In FKY v JJA [2023] HKFC 200, paragraph 100, HHJ T. Kwan quoted CFI’s decision of YJH v LKHM [2019] HKFLR 418, where Au Yeung J summarized the principles of proper assessment of forum non conveniens after citing the principles in SPH v SA:

“44. For proper assessment, it is not enough to load up factors which connect a case or the parties to any particular jurisdiction. The court is required to focus on the appropriateness of a forum from the point of view of the trial of the action: Rambas Marketing Co LLC v Chow Kam Fai David [2001] 3 HKC 250, at 255B-E, Recorder Ma SC as he then was.

…

45. The welfare of the child has to be considered in two different contexts. The first is the context of which court shall decide what the child’s best interests require. The second context, which only arises if it has first been decided that the welfare of the child requires that the Hong Kong rather than a foreign court shall decide what are the requirements of the child, is what orders as to custody, care and control and so on should be made: Re F (A Minor)(Abduction: Custody Rights) [1991] Fam 25, at 31D-E, Lord Donaldson.

46. In the absence of statutory provisions and as a matter of good common sense, the jurisdiction where the child habitually resides should try the case: LN v SCCM at §29, Cheung JA. The rationale is:

“29. … After all, if the children are here, issues concerning their well being can be conveniently dealt with in terms of the Court’s local knowledge and experience on the way they are to be raised and educated, inquiry by social workers and experts, testimony from witnesses and the Court’s wish to hear the views of the children directly. More importantly, this will ensure that there is no undue disruption of the children’s normal daily life when the matter is heard on home grounds. Without going into a discussion on the legal meaning of habitual residence, it does appear that the children have habitually been residing in Hong Kong.”

47. However, though habitual residence of the child is a factor of high importance, it is not a conclusive factor: H v H (Minors) (Forum Conveniens) [1993 1 FLR 958, at 974 D-G.

48. The court has to consider a basket of other factors. In V & M (A Child) Stranding: Forum Conveniens: Anti-Suit Injunction) [2019] 4 WLR 38, Williams J stated at §35(iii):

“In assessing the appropriateness of each forum, the court must discern the forum with which the case has the more real and substantial connection in terms of convenience, expense and availability of witnesses. In evaluating this limb the following will be relevant; (a) … parties’ connections with the competing forums in particular the jurisdictional foundation; (b) the relative ability of each forum to determine the issues including the availability of investigating and reporting systems. In practice judges will be reluctant to assume that facilities for a fair trial are not available in the court of another jurisdiction but this may have to give way to the evidence in any particular case; (c) the availability of witnesses and the convenience and expense to the parties of attending and participating in the hearing; (d) the availability of legal representation; (e) any earlier agreement as to where disputes should be litigated; (f) the stage any proceedings have reached in either jurisdiction and the likely date of the substantive hearing; (g) principles of international comity, in so far as they are relevant to the particular situation in the case in question. However public interest or public policy considerations not related to the private interests of the parties and the ends of justice in the particular case have no bearing on the decision which the court has to make; (h) it has also been held that it is relevant to consider the prospects of success of the applications.” (emphasis added)

….

53. Ultimately, whether to stay or refuse a stay depends on whether the defendant can establish that to refuse a stay would cause injustice. In MacShannon v Rochware Glass Ltd [1978] AC 795, Lord Salmon at 818-819 of his judgment stated as follows:

“In an action brought in England when its natural forum is Scotland, I consider the question as to whether it should be stayed depends upon whether the defendants can establish that to refuse a stay would produce injustice. Clearly if the trial of the action in England would afford the Scottish plaintiff no real advantage and would be substantially more expensive and inconvenient than if it were tried in Scotland, it would be unjust to refuse a stay. If, on the other hand, a trial in England would offer the plaintiff some real personal advantage, e.g., if he had come to live in England, a balance would have to be struck and the court might in its discretion consider that justice demanded that the trial should be allowed to proceed in England (see e.g. Devine v. Cementation Co. Ltd. [1963] N.I. 65). To my mind, the real test of stay or no stay depends upon what the court in its discretion considers that justice demands. I prefer this test to the test of whether the plaintiff has behaved ‘vexatiously’ or ‘oppressively’ on a so-called liberal interpretation of these words.” (emphasis added)”

20.In summary, the proper assessment in considering which court has natural and appropriate forum are as follows:

(a)  Court is required to focus on the appropriateness of a forum from the point of a view of the trial of the action;

(b)  In relation to welfare of the child, the Court has to consider which court shall decide what the child’s best interests require. In the absence of statutory provisions and as a matter of good common sense, the jurisdiction where the child habitually resides should try the case, however, though habitual residence of the child is a factor of high importance, it is not a conclusive factor;

(c)  Court must discern the forum with which the case has the more real and substantial connection in terms of convenience, expense and availability of witnesses:

(1)  Parties’ connections with the competing forums in particular the jurisdictional foundation;

(2)  The relative ability of each forum to determine the issues including the availability of investigating and reporting systems;

(3)  Availability of witnesses and the convenience and expense to the parties of attending and participating the hearing;

(4)  Availability of legal representation;

(5)  Any earlier agreement as to where disputes should be litigated;

(6)  The stage any proceedings have reached in either jurisdiction and the likely date of the substantive hearing;

(7)  Principles of international comity, in so far as they are relevant to the particular situation in the case in question;

(8)  Prospects of success of the stay application.

Parties’ submissions

21.I have compiled below W’s proposition that Shenzhen Court is natural and more appropriate forum than in Hong Kong, and H’s response are as follows:

W’s proposition H’s response

(a) Parties substantially conducted their matrimonial life in the PRC. The present case has substantial and direct Hong Kong connections.

(b) Significant portion of the matrimonial assets is situated in PRC, including three landed properties registered in W’s sole name and shares held by H in two PRC companies. The focus of the enquiry should be on the landed properties. Forum is not determined by a mechanical tally of asset values, but by a qualitative and holistic assessment of all relevant connecting factors. Even if Court accepts significant assets are situated in PRC (which H denies), that shows only PRC connections, not that Shenzhen is clearly more appropriate than Hong Kong.

(c) All PRC properties involve the interests of third parties who reside in the PRC, this will cause inconvenience to W’s parents, as they reside in Chengdu. Further, since H also claims a share of 萬科花園單位 and W’s case is that this property was held by her on trust for her parents and was sold in March 2025, H will likely need to join W’s parents and/or buyer into these proceedings for s.17 application or determination of beneficial ownership of sale proceeds. W’s parents may also take out applications to challenge the forum of Hong Kong court, which will cause further delay to the final determination of the question of ancillary relief There is a live beneficial ownership dispute concerning the Hong Kong Former Matrimonial Home, which is itself a substantial Hong Kong-side property issue. Alleged third-party or beneficial-interest claims over PRC properties do not justify a stay. If required, this Court can order joinder or determine preliminary issues within the Hong Kong proceedings. Hong Kong family courts routinely handle ancillary-relief cases involving PRC assets, including matrimonial homes in the PRC and related third-party interests. H also does not see material difference in terms of convenience to W’s parents if the forum is the Shenzhen Court, given its proximity to Hong Kong.

(d) All Hong Kong and PRC properties registered in W’s name, except 濱江樾城 and 濱江樾城車位 were pre-marital assets. If ancillary relief is tried in Hong Kong and makes any order in favour of H for the division of W’s premarital properties, there is a real risk that a subsequent application for recognition or enforcement of such an order in the PRC will be refused by PRC Court W’s reliance on alleged differences in the treatment of premarital assets under PRC law is misplaced. Differences in substantive law do not, without more, make another forum more appropriate. Limited weight should be given to W’s PRC law opinion.

(e) H has not given full and frank disclosure on his financial position, particularly his income and assets in the PRC, and discovery against H’s income, social insurance and housing provident funds and other financial resources in the PRC will be far more convenient if the case is tried in Shenzhen Court Allegations of incomplete disclosure do not determine forum. Existence of some forensic or practical advantage in another forum is not the test.

(f) W invites this Court to place no weight on Daughter’s current presence in Hong Kong. W’s compliance with the Court’s order to bring the Daughter to Hong Kong on 28 January 2026 is without prejudice to this stay application Both parents are employed in Hong Kong and physically present for work. Hong Kong Former Matrimonial Home provides stability. Child’s welfare is paramount. W failed to uphold this principle by unilaterally removing the 19-month-old Daughter from Hong Kong, where she was born and had lived her entire life.

(g) There was a clear agreement or understanding, that the parties would dissolve their marriage in the PRC There was no concluded agreement or promise between the parties regarding the choice of jurisdiction or the proper forum for the dissolution of the marriage.

Analysis

22.W’s propositions are similar to the legal principles on proper assessment I summarized in paragraph 20 above. I will conduct stage 1 analysis by going through W’s propositions first. Then, I will address other factors mentioned in paragraph 20 above.

W’s proposition (a): Parties’ connection with competing forums in particular the jurisdictional foundation

23.I am of the view that there are clear facts showing parties have substantial and direct Hong Kong connections for this divorce case, namely:

(a)  Parties were married in Hong Kong on 18 July 2021;

(b)  Daughter was born in Hong Kong on 30 September 2024 and resided in Hong Kong until W took Daughter to Chengdu on 18 September 2025, which was shortly after H filed the Petition;

(c)  It is undisputed that W stayed in Hong Kong Former Matrimonial Home since March 2024 till H filed Petition for divorce in August 2025. Although H moved out Hong Kong Former Matrimonial Home in January 2025, W still stayed in Hong Kong Former Matrimonial Home with the Daughter;

(d)  Both parties are employed by Hong Kong Companies throughout the years of their marriage;

(e)  W & H obtained permanent residency in Hong Kong in 2019 and 2020 respectively;

(f)  According to W’s Form E, she has more than HK$4.7m under her Hong Kong bank accounts, which is more than 35% of reported net assets in her Form E. In addition to that, she has vested shares under her employment of around HK$1.43m and Hong Kong MPF and Provident Fund for another around HK$1.43m, which made up another 20% of her reported net assets in her Form E. These two assets already made up of more than 50% of W’s net assets in her Form E;

(g)  In relation to H’s Form E, he has around HK$0.9m in his Hong Kong bank accounts, around HK$2.5m shares traded on Hong Kong Stock Exchange and HK$0.24m on his MPF, which is around 29% of his reported net assets in Form E. Hong Kong Former Matrimonial Home is around HK$4.5m according to H’s valuation and it made up of another around 36% of H’s reported net assets in Form E. These assets made up around 65% of H’s net assets in his Form E; and

(h)  It seems parties’ assets in Hong Kong consists of more than 50% of parties’ reported net assets in their Form E.

24.W raised a few factors showing her connections in PRC, i.e. parties also married in Chengdu in 2022 and W resided in Chengdu at least 1 year after the marriage, but these only showed W has connections with Chengdu instead of Shenzhen. W also did not deny she canceled her Chengdu Huji (戶籍) in 2022. Although she attempted to explain the reason was to enable her and their future child to enjoy various benefits in the PRC but this is a bare assertion unsupported by any documentary or other evidence. I am unable to attach weight on her explanation.

25.W also indicated the parties’ stay in Hong Kong was intended to be temporary. However, W has not produced any contemporaneous document – such as correspondence, relocation plan, evidence of steps taken to move to the PRC to support her claimed intention. W’s evidence in producing wechat discussion between the parties on kindergartens in PRC in 2024 were piecemeal evidence and the Daughter in fact stayed in Hong Kong until W took the Daughter to Chengdu in September 2025. The admission slip of a school in Chengdu was dated October 2025, which is after W issued her proceedings in Shenzhen Court. Further, if W’s intention was always to live in PRC, she has not satisfactorily explained why she only moved to Chengdu with the Daughter in September 2025, shortly after H filed his Petition in Hong Kong. The timing strongly suggests that the move was a response to the litigation rather than the fulfilment of a pre-existing plan.

26.W also raised that H maintained his Shenzhen Huji (戶籍) and worked in PRC for most of the time, but evidence only showed H also worked in PRC and maintained connections in Shenzhen, it could not negate the fact that H is employed by a Hong Kong company earning a substantive monthly income from this company for over HK$100,000 according to H’s Form E.

27.In summary, while I acknowledge parties have connections to both jurisdictions, I do not think W has successfully persuaded this Court that parties do not have real and substantial connection with Hong Kong and parties have more connections in PRC.

W’s proposition (b): Location of assets and focus of financial enquiry

28.W submits 69% of the matrimonial assets is situated in PRC, including 3 landed properties registered in W’s sole name, and valuable shares held by H in two PRC companies. According to W, value of H’s companies is worth about RMB7.15m instead of RMB0.2m as reported by H. Further, although parties do not hold unsubstantial amount of cash in their Hong Kong bank accounts, this factor is of little significance given their highly liquid nature. The focus of enquiry should be on landed properties, in particular H claimed a share in all PRC landed properties registered under W’s name.

29.W currently holds 2 Chengdu properties with carparks and 1 Hong Kong property with carpark (which is the Hong Kong Former Matrimonial Home). According to W’s Form E, the value of 2 Chengdu properties with carparks (around RMB 6.95m) are slightly higher than the Hong Kong Former Matrimonial Home with carpark (around HK$ 6.7m). All these three properties involve live disputes on beneficial ownership. On top of the three properties, there is also dispute on valuation on H’s PRC companies. I acknowledge there are slightly more live disputes on PRC assets than in Hong Kong. However, I am of the view that this does not mean that PRC forum will be more appropriate to determine issues. In my view, Hong Kong Court has the ability to deal with the valuation on H’s PRC companies through discovery process and with the assistance of expert evidence. We also need to assess PRC forum’s ability to determine the live disputes in relation to beneficial ownership of the Hong Kong Former Matrimonial Home, which will be analyzed further in proposition (c) below.

W’s proposition (c): Third party interests and convenience of witnesses

30.W submits that it is inevitable for W’s parents to be joined into these proceedings for a preliminary issue trial to determine the ownership of PRC properties. If H pursues his claim on the sale proceeds of 萬科花園單位, W’s parents and/or the buyer will be joined for s.17 application or determination of the beneficial owner of the sale proceeds. W submits that if W’s parents be joined in these proceedings, this will cause inconvenience to W’s parents, as they reside in Chengdu. Further, W submits that there is possibility for third parties taking out applications to challenge the forum of Hong Kong court and would cause delay to the final determination on the question of ancillary relief.

31.In terms of convenience of witnesses, I agree with H that I could not see material difference between Shenzhen Court and Hong Kong, as both jurisdictions are geographically adjacent. Neither party nor any potential witness would face significant inconvenience or expense in attending hearings in either jurisdiction. This factor cannot show Shenzhen Court is more appropriate.

32.In relation to delay, I fail to see how Shenzhen Court would determine the beneficial ownership issues quicker than Hong Kong Court. According to paragraphs 24-30 of the PRC legal opinion dated 27 October 2025 provided by W (1^st PRC legal opinion), it is stated under paragraph 26 that the true owner can file a separate ownership confirmation action (另案起訴確認所有權) if the true owner is not the registered owner. If the true owner cannot get a final judgment before the divorce trial opens, they can use the acceptance notice of that separate case to ask the divorce court to exclude that property from division. The divorce court will then not deal with that property because it involves a third party right. Further, in paragraph 27 of the 1^st PRC legal opinion, it is stated that if the third party does not file a separate case in time, and the other spouse raises the claim in the divorce, the divorce court may deal with it directly – but only if the facts could be verified by the divorce court. Paragraph 27 goes on to say in practice, PRC courts will rarely join third parties into the divorce case. Only in very few cases will the court notify a third party to participate.

33.In Hong Kong, it is not necessary for third parties to take out a separate application. Third parties will be joined in the divorce proceedings for determination of preliminary issues and s.17 applications, and the Court may even order such preliminary issues to be heard at the same time of the divorce’s ancillary relief trial. As such, Hong Kong Court could deal with ancillary relief and third party issues in the same set of divorce proceedings.

34.It follows that, far from being more efficient, the Shenzhen Court would likely require W’s parents to take out separate legal proceedings in order to establish their claimed ownership of the PRC properties – which may cause further delay and cost more rather than less. Hong Kong proceedings are, on the evidence before me, more efficient for resolving the totality of disputes between these parties. This factor does not favour Shenzhen Court.

35.I further agree with H that Hong Kong family courts routinely handle ancillary relief matters involving PRC assets, including matrimonial homes in the PRC and related third party interests. Hong Kong family courts could be assisted by PRC legal opinion in determining PRC property issues.

36.Also, W has not provided information on how Shenzhen Court deals with the beneficial interest issue on the Hong Kong Former Matrimonial Home. Two PRC legal opinions provided by W did not address how a PRC court would apply or recognize Hong Kong equitable principles to determine beneficial ownership. Paragraph 17 of the 1^st PRC legal opinion merely states that Shenzhen court could, in principle, deal with overseas assets that are proved to be matrimonial property, and may deal with them together with mainland property. The 2^nd PRC legal opinion dated 30 March 2026 provided by the W (“2^nd PRC legal opinion”) only focuses on enforcement risk, specifically, whether application for recognition of a Hong Kong judgment dividing W’s pre-marital assets would be refused in mainland.

37.Therefore, W failed to show how Shenzhen Court deals with the beneficial interest issue which relates to W’s parents in the Hong Kong Former Matrimonial Home.

38.In summary, in relation to third party interests, W is unable to prove any inconvenience caused to the witnesses, delay caused in proceeding with Hong Kong Court, and fails to prove how Shenzhen Court could deal with the live dispute concerning beneficial ownership of the Hong Kong Former Matrimonial Home. In fact, the proceedings in Shenzhen Court might even take a longer time as it involves separate litigation on third party interests.

W’s proposition (d): Enforcement risk

39.W highlights the differences between PRC and Hong Kong in dealing with pre-marital assets and submits that the basic principle of PRC law is that premarital assets should not be divided. Therefore, W says “if ancillary relief is tried in Hong Kong and the Court makes any order in favour of H for the division of W’s premarital properties, there is a real risk that a subsequent application for recognition or enforcement of such an order in the PRC will be refused by the PRC Court under Article 9 of “最高人民法院關於内地與香港特別行政區法院相互認可和執行婚姻家庭民事案件判決的安排””.

40.This is not a factor for proper assessment of forum non conveniens as mentioned in paragraph 20 above. In any event, I consider W’s argument on enforcement risk to be speculative. Hong Kong Court has not decided how to treat W’s pre-marital assets in the ancillary relief trial. More importantly, I agree with H that W’s reliance on alleged differences in the treatment of premarital assets under PRC law is misplaced. Differences in substantive law do not, make another forum more appropriate. In substance, allowing this argument would in substance be allowing W to seek forum which law is more favourable to her, and this is not the correct forum analysis.

W’s proposition (e): Non-disclosure and investigatory powers

41.W argues that H did not fully disclose his financial position in his Form E, particularly his income and assets in the PRC. W therefore will seek discovery from non-parties, including H’s employers, PRC companies and banks. W argues non-party discovery is generally not encouraged before attempting specific discovery against the spouse in Hong Kong. Further, where the non-party is a foreign entity, such non-party will only be compelled to produce documents abroad in exceptional circumstances of urgent necessity. By contrast, discovery against H’s income, social insurance and housing provident funds and other financial resources in the PRC will be far more convenient if the case is tried in Shenzhen Court. W submits that W can apply for investigation order and request PRC court to conduct investigation and W could apply to obtain H’s social insurance and provident funds records directly.

42.While I acknowledge that PRC courts have their own investigatory powers on PRC assets, Hong Kong Court also has its own well-established disclosure mechanisms. These include questionnaires requiring specific answers, specific discovery of documents in a party’s possession, Norwich Pharmacal orders compelling third parties to disclose information, and Court’s power to draw adverse inferences against a party who fails to give proper disclosure. The question under the Spiliada test is whether Shenzhen forum is clearly or distinctly more appropriate than Hong Kong forum. Difference in procedural tools available does not make one forum more appropriate than the other. I consider this factor is not sufficient to prove Shenzhen Court is a more appropriate forum than in Hong Kong.

W’s proposition (f): Child welfare and habitual residence

43.W invites this Court to place no weight on Daughter’s current presence in Hong Kong. W argues her compliance with the Court’s order dated 28 January 2026 to bring Daughter to Hong Kong is without prejudice to this stay application. Further, W submits if ancillary relief is to be resolved by the Shenzhen Court, there is every reason for all matters related to Daughter to be resolved by the same court as the provision for Daughter is inextricably tied up with the distribution of the matrimonial assets.

44.In relation to the legal principles of proper assessment of court’s natural and appropriate forum as summarized in paragraph 21 above, Court has to consider which court shall decide the child’s best interest, and the jurisdiction where the child habitually resides should try the case, and habitual residence of the child is a factor of high importance though not a conclusive factor.

45.In FKY v JJA [2023] HKFC 200, paragraph 129, HHJ T. Kwan quoted Court of Appeal’s decision LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798 where it is stated:

“(1) Habitual residence is a question of fact which should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce (In re L (A child) paragraph 20);

(2) The factual question is: has the residence of a particular person in a particular place acquired the necessary degree of stability (permanent is the word used in the English versions of the two CJEU judgments) to become habitual? It is not a matter of intention: one does not acquire a habitual residence merely by intending to do so; nor does one fail to acquire one merely by not intending to do so (In re LC (Children) paragraph 59);

(3) The concept corresponds to the place which reflects some degree of integration by the child in a social and family environment (In re L (A child) paragraph 20);

(4) The question is the quality of the child’s residence, in which all sorts of factors may be relevant. Some of these are objective: how long is he there, what are his living conditions while there, is he at school or at work, and so on? But subjective factors are also relevant: what is the reason for his being there, and what is his perception about being there? (In re LC (Children) paragraph 60);

(5) There is no legal rule, akin to that in the law of domicile, that a child automatically takes the habitual residence of his parents (In re L (A child) paragraph 21); and

(6) Although a child could lose his habitual residence without a parent’s consent, nevertheless, it is clear that parental intent does play a part in establishing or changing the habitual residence of a child: not parental intent in relation to habitual residence as a legal concept, but parental intent in relation to the reasons for a child’s leaving one country and going to stay in another. This will have to be factored in, along with all the other relevant factors, in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of habitual residence (In re L (A child) paragraph 23).” (emphasis added)

46.Daughter is 1 year 8 months old at the time of the hearing. She was born in Hong Kong on 30 September 2024 and has been living in Hong Kong Former Matrimonial Home since then until W took Daughter back to Chengdu on 18 September 2025. H then issued application on 5 November 2025 requesting W to return Daughter and W returned Daughter under Court order dated 28 January 2026.

47.W stated the arrangement for Daughter to stay in Hong Kong intended to be temporary which intentions I doubted in paragraph 25 above. Further, the legal principles on habitual residence quoted in LCYP v JEK (Children: Habitual Residence) stated clearly that it is not matter of intention, and the question is: has the residence of a particular person in a particular place acquired the necessary degree of stability.

48.In my view, residence of Daughter in Hong Kong acquired the necessary degree of stability until W took her to Chengdu in September 2025. Daughter has been in Hong Kong in her entire life before September 2025 and she lived in the Hong Kong Former Matrimonial Home which is legally owned by W. Even W argues she only owned 1% of the Hong Kong Former Matrimonial Home, and another 99% beneficial ownership was alleged to be owned by W’s mother, that in fact shows W’s extended family has a substantial stake in Hong Kong real property and has chosen to house the family here. Daughter attended play group in XX Kindergarten since June 2025 for twice a week. In addition to the care by W and both parties’ mother, a maid was employed to take care of Daughter since her birth according to report by Social Investigation Officer. Daughter’s social and family environment were established in Hong Kong with the active participation and financial support of W’s own family.

49.I acknowledge LCYP v JEK (Children: Habitual Residence) also mentioned a child could lose his habitual residence in one place even without a parent’s consent, court should also look at why the child left one country and went to stay in another, what was the parents’ reason or purpose for the move and this parental intent must be considered together with all other factors when deciding whether the child’s move from one country to another has enough stability and permanence to amount to a change of habitual residence. I do not find that W’s taking Daughter to Chengdu on 18 September 2025, which was only 3 weeks after H filed the Petition and around 5 weeks before W took out this stay application, has created sufficient degree of stability to Daughter to have changed her habitual residence from Hong Kong to Chengdu.

50.In summary, I consider Daughter’s habitual residence is in Hong Kong, and her well-being could be conveniently dealt with by the Hong Kong Court. Hong Kong Court has direct knowledge and experience on how Daughter will be raised, social workers have investigated the matter and can provide further investigation on the well-being of Daughter. Daughter’s normal daily life is not disrupted if this case is heard in Hong Kong.

W’s proposition (g): Earlier agreement as to where disputes should be litigated

51.W submits there was a clear agreement or understanding that the parties would dissolve their marriage in the PRC, whether through 民政局 or PRC Courts.

52.H submits there was no concluded agreement or promise between the parties regarding the choice of jurisdiction or the proper forum for the dissolution of the marriage. H’s case is that any discussion or attempt to pursue divorce-related steps in Shenzhen was conditional only and limited to an uncontested administrative divorce at the Shenzhen marriage registry, premised on prior agreement on terms relating to property, access and maintenance.

53.Although there are wechat records produced by W between the parties on the discussion of divorce process in PRC and H even registered in 深圳民政局for registration of divorce on 28 April 2026, however, there is no signed written agreement between the parties on divorce, child and financial matters. There is no concrete evidence showing parties reached a clear agreement on child, financial and divorce matters to be resolved in PRC from the evidence. The PRC Divorce Registry process was not completed and application for registration was lapsed on 27 June 2025. In summary, there is no clear agreement reached between the parties as to disputes should be only litigated and be dealt with in PRC.

Other factors

54.W’s propositions already addressed most of the factors listed in proper assessment of forum non conveniens as mentioned in paragraph 20 above. By going through the remaining factors to be considered in the summary of paragraph 20 above, I consider the other factors cannot show Shenzhen Court is the natural and appropriate forum to deal with parties’ divorce proceedings instead of Hong Kong Court:

(a)  Availability of legal representation: both parties have sufficient resources to get legal representation in both jurisdictions;

(b)  The stage any proceedings have reached in either jurisdiction and the likely date of the substantive hearing – PRC dismissed W’s divorce action on 15 May 2026, holding that it lacked jurisdiction. W has appealed but the appeal outcome is unknown. Even if W could successfully appeal the PRC Ruling in the future, it takes time for Shenzhen Court to resume child and financial matters. However, Social Investigation Reports have been called for in Hong Kong proceedings and parties have exchanged their truncated Form E. Parties need to file and exchange their full Form E and the next stage will be filing of Questionnaires. It appears the child and ancillary relief matters of the Hong Kong proceedings have moved from the preliminary stage to the intermediate stage while it appears that the Shenzhen Court is still in the preliminary stage only.

(c)  Principles of international comity and the PRC Ruling – Shenzhen Court has expressly found, after hearing full argument from both parties, that it lacks jurisdiction over this divorce. The PRC Ruling records that the Longhua Court considered W's arguments, including H's Shenzhen Huji, his alleged PRC employment, and the location of assets and rejected them. The Shenzhen Court found that both parties are Hong Kong permanent residents and that neither party's domicile or habitual residence is in Shenzhen. International comity requires this Court to respect the said considered finding. It would be contradictory for this Court to stay its own proceedings in favour of a court that has itself expressly declined jurisdiction over the same dispute. I note that W has filed an appeal to the Shenzhen Intermediate People's Court. However, the appeal outcome is unknown. In any event, even if I were to disregard the PRC Ruling entirely and assess the matter without reference to international comity, my conclusion would be the same. On the totality of the other factors analysed above, Daughter's habitual residence, the parties' connections, and the relative efficiency of proceedings, W has failed to prove that Shenzhen forum is clearly or distinctly more appropriate than Hong Kong forum.

Summary

55.In view of the above analysis, I consider W has failed to demonstrate Hong Kong is not the natural or appropriate forum and Shenzhen is more appropriate forum than in Hong Kong. W did not pass Stage 1 of Spiliada Test.

Issue 3 : Stage 2 of the Spiliada test and Issue 4: Stage 3 of the Spiliada test

56.Since I decide W fails to discharge her burden, it is no longer necessary to deicide Stage 2 and Stage 3 of the Spiliada Test.

Issue 5: Any Agreement/Promise?

57.I decide in paragraph 53 above that parties have not reached a clear agreement on child, financial and divorce matters to be resolved in PRC above from the evidence.

Issue 6: How agreement/promise affect Forum Non Conveniens and Issue 7: Promissory Estoppel

58.Since I have decided that parties have not reached a clear agreement on child, financial and divorce matters to be resolved in PRC, it is also not necessary for me to decide on issues 6 and 7.

CONCLUSION

59.In the circumstances, I refuse to grant the order to stay on the ground of forum non conveniens nor the ground of promissory estoppel.

COSTS

60.I do not see any reason why costs should not follow the event, therefore W is to pay H’s costs of this Summons.

ORDER

61.The Order shall read as follows:

(1)  Retrospective leave be granted to the Respondent to take out Respondent’s Summons out of time;

(2)  Paragraphs 2 and 3 of Respondent’s Summons filed on 28 October 2025 are dismissed.

(3)  In respect of costs, I make a costs order nisi as follows:

(a)  Costs of and incidental to the Respondent’s Summons dated 28 October 2025 be to the Petitioner, including all costs reserved, to be summarily assessed, with certificate for counsel.

(b)  Unless any party applies to vary the above costs order nisi within 14 days hereof, the costs order shall become an order absolute.

(c)  The summary assessment of costs shall be dealt with by way of paper proposal:

i.  Petitioner do lodge and serve his statement of costs (in the format in Appendix A of PD 14.3) within 21 days;

ii.  Respondent do lodge and serve her list of objections within (no more than 2 A4 pages) within 7 days thereafter.