Zhu Hong v. Liu Gang
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CAMP 83/2023, [2026] HKCA 1745 On Appeal from [2022] HKFC 223 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MISCELLANEOUS PROCEEDINGS NO 83 OF 2023 (ON AN INTENDED APPEAL FROM FCMC NO. 8529 OF 2021) ________________________
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____________________ J U D G M E N T ____________________ Hon Coleman JA (giving the Judgment of the Court): A. Introduction 1.By his judgment dated 4 November 2022 ([2022] HKFC 223) (“Judgment”), Deputy District Judge Felix Li (“Judge”) dismissed the divorce petition (“Petition”) filed by the petitioner (“Wife”) against the respondent (“Husband”) on 24 August 2021. The Petition was dismissed for want of jurisdiction, and consequently the Judge also dismissed the Wife’s summons dated 28 April 2022 seeking maintenance pending suit (“MPS Summons”). 2.The Wife’s application for leave to appeal against the Judgment was refused by the Judge on 9 February 2023 (“Leave Decision”). The Wife renewed her leave application to this Court by way of a summons dated 23 February 2023. 3.Having considered the documents and submissions filed and lodged by the parties, we take the view that it is appropriate to determine this application on the papers without an oral hearing. B. Background B.1 The Wife, Husband and Children 4.The Wife and the Husband were aged 40 and 49 respectively at the time of the Judgment. They were born in Mainland China. They met and started a relationship in the early 2000s when they were studying in Russia. They were subsequently married in Futian District in Shenzhen on 15 October 2007. As part of their plans to migrate to Hong Kong, the Husband incorporated a Hong Kong company (“MHKCL”) in November 2007 and submitted his application under the Quality Migrant Admission Scheme (“QMAS”) in 2008. It was approved in 2010, but they remained residing in Shenzhen afterwards. 5.The parties have two children, a daughter and a son who were 13 and 11 years old at the time of the Judgment. The daughter was born in Hunan, PRC, and the son was born in Hong Kong. 6.In January 2013, the Husband and the daughter relocated from Shenzhen to Hong Kong. The son joined them in Hong Kong the following year. At all material times, they were living in a rented apartment in Shatin, Hong Kong. The Husband and the daughter subsequently obtained permanent residence in Hong Kong in 2017. 7.In the period between 2013 and 2019, the Wife predominantly worked and resided in Shenzhen, and she would travel to and from Hong Kong on the strength of her dependency visa. She kept her overnight stays in Hong Kong to a minimum in order to avoid confrontations with the Husband. 8.In the second half of 2019, the Husband decided to move to Canada with the daughter and son. The Husband chose Canada over Shenzhen because of the available and more affordable school placements in Canada for the children. In addition, the Husband’s family members were either living in Canada or had plans to migrate to Canada. The Husband and the children eventually departed for Canada on 8 January 2020. B.2 The Husband’s 1st PRC Proceedings 9.About 6 months after their departure to Canada, the Husband initiated divorce proceedings in the Shenzhen Yantian District People’s Court, PRC (“Yantian Court”) on 31 July 2020 (“1st PRC Proceedings”). The Wife disputed her ‘habitual residence’ to be the Yantian District and she successfully transferred the case to the Shenzhen Luohu District People’s Court, PRC (“Luohu Court”) for determination. In the Luohu Court, the Wife successfully opposed the divorce on the ground that the marriage had not broken down irretrievably, resulting in the 1st PRC Proceedings being dismissed on 5 February 2021. B.2 The Wife’s Petition in Hong Kong 10.On 24 August 2021, the Wife filed the Petition in Hong Kong. To establish jurisdiction under section 3 of the Matrimonial Causes Ordinance Cap 179 (“MCO”), she pleaded that the Husband was domiciled in Hong Kong at the date of the Petition (being her primary case) and that the Husband and/or the Wife had a substantial connection with Hong Kong (her alternative case) by reason of the following matters:
11.On 15 December 2021, the Husband took out a summons to dismiss the Petition for lack of jurisdiction, or alternatively to stay the proceedings in favour of the Yantian Court on ground of forum non conveniens. He later amended his summons to seek the stay in favour of the Luohu Court instead (“Jurisdiction Summons”). 12.It was the Husband’s case that having seen the children adapting well and showing fondness for Canada, he had decided to stay there indefinitely with them, and that in any event, he was domiciled in Canada at the date of the Petition (i.e. 24 August 2021), notwithstanding his occasional travels to Hong Kong in June and August 2020. 13.On the other hand, the Wife said she had agreed to the Husband’s departure to Canada with the children but she understood the arrangement to be a temporary one and solely for the purpose of the children’s primary school education. B.3 The Husband’s 2nd PRC Proceedings 14.On 29 November 2021, the Husband took out fresh divorce proceedings in the Yantian Court (“2nd PRC Proceedings”), as the Wife no longer contended that the marriage had not broken down irretrievably. The matter was again transferred to the Luohu Court for determination. It was also adjourned in view of the jurisdictional challenge in the Hong Kong Courts. The jurisdiction hearing in Hong Kong was heard on 5 and 6 September 2022. 15.On 20 September 2022, pending the decision of the Hong Kong Courts, the Luohu Court gave its judgment dismissing the 2nd PRC Proceedings (“Luohu Court’s Ruling”). This led the Wife to file a summons on 7 October 2022 to adduce the Luohu Court’s Ruling as new evidence, which was opposed by the Husband. Accordingly, the Judge dealt with the summons for new evidence together with the Jurisdiction Summons in the Judgment. C. The Judgment below C.1 Domicile 16.The Judge dismissed the Wife’s Petition and her MPS Summons, having found that the Husband was domiciled in Canada at the date of the Petition. He held that the Husband had not only evinced a settled intent to reside in Canada but had also acted upon it[1]. 17.Such acts included his application for the Saskatchewan immigration programme in Canada and having entered into tenancy agreements in Canada since October 2019 for the residence of himself and the children, which was consistent with his pattern of living during his marriage[2]. Family-wise, he found that the children had settled well in their respective schools and were positively engaged in school curriculums, as reflected in their school reports[3]. Moreover, the Husband had not only arranged for himself but also his close family members to unite with him and the children in Canada, which was consistent with someone who intended to uproot himself to settle permanently in another country[4]. As such, the Judge rejected the Wife’s case that the Husband has not severed his domicile in Hong Kong at the date of the Petition. 18.As part of the Judge’s decision on domicile, he again found that the Husband had ‘a’ connection with Hong Kong, but it was not a substantial one[5]. He held that despite the Husband having retained various assets in Hong Kong (including his company MHKCL, his MPF, his two insurance policies and bank accounts), and that he had continued to pay salaries tax in Hong Kong, the Husband was not financially relying on the income generated in Hong Kong to finance his daily living in Canada, as evidenced in the transactions between MHKCL and his personal accounts showing that he was putting more money into MHKCL than receiving from it[6]. As such, the Wife failed to prove her primary case that the Husband was (still) domiciled in Hong Kong as at the date of the Petition. C.2 Substantial connection 19.As to the Wife’s alternative case on substantial connection, the Judge did not accept that the Wife or the Husband had a substantial connection with Hong Kong for the divorce proceedings to be determined by the Hong Kong Courts. 20.Dealing firstly with the Husband’s connection, the Judge found that the Husband had ‘a’ connection with Hong Kong but the Wife was not able to establish, evidentially or contextually, that it was a substantial one. In particular, the Wife was not able to show that the Husband’s ties with Hong Kong was substantially connected to his family life or purpose[7]. In terms of his financial dealings in Hong Kong, the Judge found that, even by investigating the bank statements of the Husband, they could not prove on balance that the Husband was financially reliant on his dealings in Hong Kong for his family-related expenses in Canada[8]. The Judge also rejected the Wife’s contentions as to the manner in which the Husband managed his finances in Hong Kong, holding that the Husband had the liberty to arrange his own finances and it was not the Court’s task to comment on how he should manage his finances[9]. Furthermore, given that the Husband had a background relating to the PRC, Russia, Hong Kong and Canada, it was not unnatural or artificial for him to have assets/financial dealings internationally[10]. 21.The Judge has also found that there was a period of 19.5 months between the time when the Husband and the children departed for Canada (8 January 2020) and the date of the Petition (24 August 2021), during which the children had already been uprooted, settled and integrated into Canada. This showed that the Husband, being their primary carer, had provided a new family life for himself and the children with its centre in Canada. As such, the Wife was not able to establish that the Husband had a substantial connection with Hong Kong by reason of the family life he had once conducted in Hong Kong prior to his departure to Canada[11]. 22.In respect of the Wife’s substantial connection, the Judge did not accept the Wife’s case that she did participate in and was part of the marital family life in Hong Kong. The Judge considered the hundreds of photographs exhibited by the Wife purporting to show that she had conducted a family life with the Husband and the children in Hong Kong, but he was unable to find one photo of the alleged family of four together. The Judge held that the more likely truth from the evidence was that the children had been spending time with their parents separately as opposed to conducting a family life altogether[12]. The Wife’s travel pattern also revealed the transitory nature of her stays in Hong Kong[13]. 23.For these reasons, the Wife was not able to establish substantial connection of either herself or the Husband with Hong Kong for the proceedings to be determined in the Hong Kong Courts. C.3 Forum non-conveniens 24.For completeness, the Judge held that he would have allowed the Husband’s application to stay the proceedings on grounds that the Luohu Court would be the appropriate forum. His reasons can be summarised as follows:
25.For these reasons, the Judge held that the Wife failed to discharge her burden in proving that she would be deprived of any personal or juridical advantage if the matter proceeded in the Luohu Court. C.4 New evidence 26.In view of the Luohu Court’s Ruling given on 20 September 2022, the Wife filed a summons on 7 October 2022 seeking to adduce it as new evidence. 27.Having considered the applicable principles of Ladd v Marshall [1954] 1 WLR 1489, the nature and relevance of the Luohu Court’s Ruling and the opposing arguments of the Husband, the Judge decided to include the Luohu Court’s Ruling as part of the evidence[20]. 28.In considering the new evidence, the Judge noted that in arriving at its ruling, the Luohu Court has incorrectly stated, inter alia, that the Husband had already ‘answered’ to the Petition in Hong Kong (‘原告已在香港法院應訴答辯’). Both parties acknowledged that this was incorrect. The Judge also noted from the Luohu Court’s Ruling that the Luohu Court had relied on this misunderstanding in dismissing the 2nd PRC Proceedings. Though the Judge did not speculate as to the reasons why the Luohu Court was mis-informed in this regard, he remarked that justice demanded some form of clarification be made to the Luohu Court[21]. 29.In considering the Luohu Court’s Ruling, the Judge found that the Wife had raised matters relating to children maintenance and non-disclosure of financials before the Luohu Court. The Judge was of the view that they only reinforced his findings that the Luohu Court was the more appropriate forum[22]. He held that, notwithstanding that the Luohu Court had dismissed the 2nd PRC Proceedings, it was open to the Husband to seek further recourse in the PRC Courts in light of the Judgment[23]. D. The Leave Decision 30.In the Wife’s application for leave to appeal before the Judge, she did not raise any challenge on the issue of domicile[24]. The focus of her challenge turned on the Judge’s rulings on substantial connection and forum non conveniens. 31.On the issue of substantial connection, the Judge rejected the Wife’s attempt to re-litigate on matters relating to economic connection and her reliance on the Declaration of Sponsor made by the Husband with the Hong Kong Immigration Department for the renewal of her dependency visa (purportedly to show that Husband would ‘return’ to Hong Kong indefinitely), for reasons that it was not pleaded in the Petition and that the Judge had already considered this point supported with full analysis at [41(f)] of the Judgment[25]. The Judge did not accept the Wife’s bare allegations as to the non-disclosure of the Husband’s finances[26], and held that it was not open for her to run these arguments on appeal under the substantial connection ground because this point was made in support of her forum non conveniens ground in the substantive hearing[27]. The Judge also rejected the Wife’s argument that this was an exceptional case, as the law is well-settled in JQ v CLH (Divorce: Jurisdiction) [2022] HKLRD 632 at [15] and [16] (as acknowledged by the Wife) that it is wrong to elevate “exceptionality” to a test for determining substantial connection, and that it is always a question of facts in a particular case. 32.On the issue of forum non conveniens, the Judge rejected the Wife’s contention that “there was an non-existence of another appropriate forum” as a result of the Luohu Court’s Ruling, for reasons that this argument was not factually supported and that the Wife had accepted that the Luohu Court’s Ruling was reached on an erroneous understanding[28]. The Judge also dismissed the Wife’s consequential ground that the Judge should have determined her MPS Summons, on the basis that the Court did not have jurisdiction to do so[29]. In consequence, her stay application, which was not supported by any arguments, was also dismissed[30]. E. The renewed application for leave to appeal 33.By summons dated 23 February 2022, the Wife made the renewed application for leave to appeal. The draft notice of appeal (“Draft NOA”) set out six intended grounds of appeal, which were in essence the same as those put forward before the Judge, save for one consequential ground which had been removed. They are as follows:
34.The Draft NOA sought to restore the Petition, and for an order that the Judge do determine the Wife’s MPS Summons. 35.Counsel for the Wife, Mr Enzo WH Chow and Mr Peter Zhu filed a written statement dated 23 February 2023 as to why leave should be granted. A separate 4-page note (“Reflection Note”) was filed together with the written statement – purportedly pursuant to §7 of Practice Direction 4.1 – which contains submissions on the alleged errors made by the Judge in his Leave Decision. However, it is not clear what is the status or relevance of this Reflection Note, or whether it forms supplemental submissions. Counsel for the Husband, Mr Eugene Yim SC argued that the Court should disregard the Reflection Note as it was filed without prior permission of the Court. 36.Leave should have been sought on behalf of the Wife if it was the intention to file additional submissions. The purported reliance on §7 of the Practice Direction 4.1 is misconceived. That directs the unsuccessful party to reflect on the merits of the application in light of the decision of the court below before renewing the application for leave to this Court, so inviting the unsuccessful party to re-assess, in light of the refusal decision in the court below, whether it is meritorious to renew the application before this Court. It is not an invitation to the unsuccessful party or their legal representative to lodge further or additional written submissions. 37.Nevertheless, we have considered the submissions made in the Reflection Note. For reasons discussed below, we are of the view that it does not advance the Wife’s application any further than what was already submitted in the written statement. F. Our reasons for decision 38.Leave to appeal shall not be granted under section 63A of the District Court Ordinance Cap 336, unless the Court of Appeal is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interest of justice that the appeal should be heard. The Wife bears the burden of satisfying this Court that her appeal has a reasonable prospect of success which means an appeal with prospects that are more than fanciful but which do not need to be shown to be probable: SMSE v KL [2009] 4 HKLRD 125 at [17]. 39.The Wife did not raise any challenge on the issue of domicile, and made no submissions in support of her proposed forum non conveniens ground. The focus of her challenge turned on the issue of substantial connection, to which her intended grounds of appeal and arguments are the same as those before the Judge. For the reasons set out below, we are of the view that the intended grounds of appeal are not reasonably arguable and the intended appeal does not enjoy any reasonable prospect of success. F.1 Ground (a) 40.Ground (a) complained that the Judge erred in finding that the Husband did not have a substantial connection with Hong Kong. Mr Chow submitted this was an “exceptional” case, and the “exceptionality” lay in the fact that even though the Husband (or the Wife) was not present in Hong Kong at the time of the Petition, he nevertheless remained substantially connected to Hong Kong and the Judge should have accorded adequate weight to the connections. 41.At the same time, Mr Chow acknowledged that it would be wrong to elevate “exceptionality” as a test for determining substantial connection, and that it is always a question of fact in a particular case. The Reflection Note stated that the Wife was not saying that the Judge had applied the wrong principle, but that the Judge should have found based on the facts in the present case that the Husband had a substantial connection with Hong Kong. 42.As contended by Mr Yim, those submissions were contradictory. The Wife could not submit on the one hand that this case was an “exceptional case”, and on the other hand rely on a case where the Court of Appeal expressly rejected “exceptionality” as a test for determining substantial connection. There is only one statutory test or question for determining whether the jurisdictional requirement under section 3(c) of the MCO is satisfied, namely whether a party to the marriage had a substantial connection with Hong Kong at the time of the petition. 43.In any event, Mr Chow did not explain in his written statement or in the Reflection Note what exceptional features (if they are considered to be exceptional at all) the Judge failed to take into account, and how the exceptional factors in the present case would impact on the findings of the Judge. Considering Ground (a) as a stand-alone ground, the Judge was correct to reject it as there was no reasonable prospect of success for the complete lack of particulars. 44.None of the other matters raised by Mr Chow in submission show an arguable point for appeal. F.2 Ground (b) 45.Ground (b) complained that the Judge failed to accord due consideration to the Husband’s economic connections with Hong Kong despite the fact that he and his children were living in Canada on the date of the Petition, as evidenced by the Declaration of Sponsor filed by the Husband with the Immigration Department showing that at least until 26 November 2020 the Husband still had the intention to return to Hong Kong. 46.This argument is no more than an attempt to re-litigate what has been canvassed before the Judge and had been analysed at length at [41(f)] to [41(k)], [53] to [55] of the Judgment. The Judge acknowledged that the Husband has ‘a’ connection with Hong Kong but the Wife was not able to establish, evidentially or contextually, that it was a substantial one. Particularly, he noted at [53] of the Judgment that the financial dealings of the Husband in Hong Kong was the Wife’s strongest point, but nevertheless the Wife had failed to put them in the family context or to give any practical meaning to it. He also found that it was not unnatural or artificial for the Husband to have financial dealings internationally, given his background relating to PRC, Russia, Hong Kong and Canada. 47.Contrary to the Wife’s contention, the Judge did consider the Wife’s reliance on the Declaration of Sponsor which purportedly showed that the Husband intended to return to Hong Kong indefinitely. The Judge rejected the Wife’s argument for reasons that, even taking this point to the highest, it would only reflect the Husband’s intention as at November 2020 which was still some 9 months prior to the date of the Petition[31]. The Judge, in refusing leave, also found that this point was not pleaded in her Petition insofar as substantial connection is concerned. 48.In our view, there is nothing in this ground to show that the Judge failed to take into account relevant matters such as economic connection, or had fallen into palpable errors in concluding that the Husband had no substantial connection with Hong Kong. F.3 Grounds (c) and (d) 49.Grounds (c) and (d) concern the complaint that the Judge failed to accord adequate weight to the lack of full and frank financial disclosure on the Husband’s part. The Wife argued that the Husband’s substantial connections with Hong Kong had not been severed, given that he still retained assets in Hong Kong, and despite his relocation to Canada. 50.These grounds have no reasonable prospect of success. They are essentially arguments as to weight, but the Judge was entitled to make a finding based on his analysis of the evidence. No particulars were given as to how the Judge failed to accord adequate weight to the alleged deficiency of disclosure. Further, as submitted by Mr Yim, the Wife was unable to point to any asset which she alleged was not disclosed by the Husband, and to articulate how the non-disclosure would impact the Judge’s conclusion. The Wife’s complaints were bare and serious allegations without any attempt to substantiate them. 51.We also accept Mr Yim’s submission that it was not open to the Wife to run these arguments on appeal under the substantial connection ground because this point was made in support of her forum non conveniens ground below. The Wife’s arguments on financial disclosures under the forum non conveniens ground were made to demonstrate that she would be deprived of personal or juridical advantage if the matter was to be adjudicated in the Luohu Court. The parties’ case on disclosure was argued in that light, and was assessed by the Judge in the context of juridical advantage, namely stage 2 of the Spiliada test. F.4 Ground (e) 52.Ground (e) complained that the Judge failed to accord adequate consideration to the Luohu Court’s Ruling on 20 September 2022 which declined jurisdiction over the Husband’s application for divorce. 53.Mr Chow made no submissions on this ground in his written statement and the Reflection Note. The burden of satisfying this court that this ground has a reasonable prospect of success has not been discharged. In any event, we are unable to find any palpable errors in the Judge’s decision and findings. The Wife acknowledged that the Luohu Court’s Ruling was reached on an erroneous understanding, and it would be inconsistent to argue that the Luohu Court’s Ruling resulted in the “non-existence of another appropriate forum”. Further, having admitted the ruling into the evidence, the Judge was entitled to find that its content reinforced his findings that the Luohu Court was the more appropriate forum in the circumstances. Lastly, any further steps since do not add anything to the analysis of whether there is an arguable ground of appeal, and no new evidence would, in the circumstances, be considered by this Court F.5 Ground (f) 54.Ground (f) is a consequential ground. Mr Chow submitted that as a result of the errors in the determination of the Jurisdiction Summons, the Judge erred in declining to determine the MPS Summons. 55.Given our rulings on Grounds (a) to (e), this ground should also be dismissed for lack of any reasonable prospect of success. Where the Wife failed to establish jurisdiction, there was no basis for the Judge to determine the MPS Summons. G. Stay of Execution 56.In consequence, the Wife’s request for a stay of execution is also dismissed. She failed to demonstrate the existence of an arguable appeal as the “minimum requirement” justifying a stay of execution: Star Play Development Ltd v Bess Fashion Management Co. Ltd [2007] 5 HKC 84. H. Disposition and Costs 57.For the above reasons, the intended appeal does not enjoy a reasonable prospect of success. Nor is there any matter which, in the interests of justice, requires the appeal to be heard. Accordingly, the Wife’s summons dated 23 February 2023 is dismissed. 58.Costs should follow the event. The Husband asks for costs on an indemnity basis. Although this renewed application is brought on weak grounds, in the exercise of our discretion we decline so to order. 59.We have considered the Husband’s statement of costs for summary assessment, and take the view that the amount claimed is reasonable. We allow the amount claimed and summarily assess the Husband’s costs at HK$69,822. 60.Accordingly, we order that:
61.As this application is without merit, we further make an order pursuant to Order 59 rule 2A (8) of the Rules of the High Court that no party may under rule 2A(7) request the determination of this Court to be reconsidered at an oral hearing inter partes.
Mr Enzo WH Chow and Mr Peter Zhu instructed by Lo & Lawyers for the petitioner Mr Eugene Yim SC, instructed by Tony Kan & Co for the respondent [1] [40] and [43] of the Judgment [2] [40(a), (b) and (c)] of the Judgment [3] [40(d)] of the Judgment [4] [40(e)] of the Judgment [5] [42] of the Judgment [6] [41(j)] and [41(k)] of the Judgment [7] [53] of the Judgment [8] [54] of the Judgment [9] [54] of the Judgment [10] [55] of the Judgment [11] [57] of the Judgment [12] [63] of the Judgment [13] [65] of the Judgment [14] [75] to [76] of the Judgment [15] [82] of the Judgment [16] [82] of the Judgment [17] [85] of the Judgment [18] [88] of the Judgment [19] [89] of the Judgment [20] [95] and [96] of the Judgment [21] [98] of the Judgment [22] [99] and [100] of the Judgment [23] [101] of the Judgment [24] [13] of the Leave Decision [25] [15] to [17] of the Leave Decision [26] [18] and 19] of the Leave Decision [27] [20] of the Leave Decision [28] [25] and [26] of the Leave Decision [29] [27] of the Leave Decision [30] [28] of the Leave Decision [31] [41(f)] of the Judgment | ||||||||||||||||||
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