C v. D

FCMC001444/2000

IN THE DISTRICT COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

F.C.M.C. No 1444 of 2000

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Coram: HH Judge Saunders

Date of hearing: 9 November 2001

Date of Judgment: 12 November 2001

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JUDGMENT

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1. This is an application by the Respondent (husband) for an anti-suit injunction.

2. The application arises in the following circumstances. The Petitioner (wife) and the husband were married in Nevada USA in May 1994. There is one child of marriage, a son born on 18 December 1996. Unhappy differences arose between the husband and wife and on 17 February 2000 the wife issued a petition in this court based on the husband's unreasonable behaviour. The husband did not seek to defend the petition and on 4 May 2000 a decree nisi was made by Deputy Judge Jenkins.

3. At the time the petition was issued the wife asserted in paragraph 3 thereof that she lived at G/F, 1A Robinson Road Hong Kong. The statement as to arrangements for the child of the family asserted that the child lived with his mother at the same address, that he had attended a preschool in Robinson Road Hong Kong and that it was proposed that he would "continue to reside with his mother" and would attend a primary school at the appropriate time.

4. There were also issues of ancillary relief between the parties and orders for directions as to affirmations were duly made. It was soon apparent to all involved that, notwithstanding the assertions made in the petition as to residence, the wife had, at about the same time as she issued the petition, moved to Shanghai where she is now a permanent resident. She took the child with her and he has remained with her throughout. There are significant issues as to custody and access. The issues of ancillary relief are complicated, involving property in a number of jurisdictions and companies in a number of jurisdictions, including those which specialise in secrecy provisions in relation to companies registered in those jurisdictions.

5. By September 2001 and the pleadings bundle comprised five lever-arch files are totaling nearly 1800 pages and a further bundle containing solicitors correspondence. Both husband and wife had filed affirmations of means, both have been required to file answers to detail questionnaires, there had been a judgment by Judge Chan as to access to the child, and numerous other interlocutory steps.

6. On Saturday 1 September 2001 the husband received, by post, documents issued by the Xuhui District People's Court of China indicating that the wife sought a decree of divorce against the husband in China, sole custody of the child and the sole right to two specified properties in Shanghai. Those proceedings were, according to the papers, scheduled for a first hearing on 19 November 2001.

7. Although both were represented in the Hong Kong proceedings at the time by very experienced and able solicitors, both of whom specialise in matrimonial law, nothing whatsoever had been said to the husband or his solicitors to indicate that the wife intended, although she already had a decree nisi in Hong Kong, to commence parallel proceedings in China. It transpired that it was equally a surprise to the wife's solicitors that she should issue proceedings in Shanghai.

8. On 10 September 2001 the husband sought an injunction restraining the wife from proceeding with continuing or otherwise pursuing divorce proceedings or any other proceedings relating thereto in the Shanghai court. The matter came before me on 11 September 2001 with both parties represented by counsel. At that time I granted an interim injunction restraining the wife from instituting any further proceedings in relation to the divorce and property matters in China, and requiring her to take all necessary steps to secure an adjournment of the proceedings in Shanghai. I adjourned the matter for further argument on 23 October 2001 and gave the wife leave to file affirmations in reply.

9. On 11 October 2001 a draft affirmation, approved, but not signed, by the wife, was filed, exhibited to a solicitor's affirmation. The wife had now changed her solicitors. The signed affirmation has now been filed. The matter came before me again on 23 October and at the husband's request I adjourned the hearing further to 9 November 2001 in order to permit the husband to file an affirmation in reply to that of the wife and to take legal advice in China as to assertions made by the wife in her affirmation as to Chinese law. Against the objection of counsel for the wife, I extended the interim injunction to 9 November 2001.

10. The matter resumed on 9 November 2001. No further affirmations were filed by the husband, although I was asked to read, in relation to the summons for the injunction, two affirmations. Those had been filed by the husband and a Mr C, in support of a summons filed by the husband is seeking defined access over the Christmas period. The husband sought to cross-examine wife on her affirmation but, as no notice to attend for cross-examination had been given and the wife was not present, I exercised the discretion given under Order 38 r.2(3) to permit cross-examination against the husband.

11. It is the wife's evidence, unchallenged, that as she is a Chinese national, residing in China, she is obliged to obtain a decree of divorce, custody orders and property orders in respect of the Chinese property in the mainland courts. She says that the divorce decree is required because she is a Chinese national, and the other orders are required because the mainland courts will not recognise or enforce orders made by the Hong Kong courts. Pursuant to the order made on 11 September 2001 the wife sought an adjournment of the mainland proceedings but that request was declined.

12. It is said for the husband that the refusal of an adjournment in the circumstances simply demonstrates that the husband would not receive proper justice in the mainland courts. While I accept that it is surprising, to say the least, that the application to adjourn was, in the particular circumstances, refused, I cannot, from that alone, draw the inference that he would not receive proper justice if he engaged in those proceedings. He says that it is unsafe for him to go to the mainland, but that is a mere assertion and there is no evidence to substantiate the assertion. The affirmation of Mr C does not go nearly far enough to provide the necessary factual basis for the assertion.

13. With that factual background by I turn now to consider the law on an anti-suit injunction.

14. The leading authority on the question of anti-suit injunctions is Societe Nationale Industrielle Aerospatiale v Lee Kui-jak [1987] 1 AC 971 PC. The judgement identifies, at p 892, four fundamental, and uncontroversial principles which may be re-stated here:

1. The jurisdiction is to be exercised when "the ends of justice" require it;

2. Where the court decides to grant an injunction restraining proceedings in a foreign court, its order is directed not against the foreign court but against the parties so proceeding or threatening to proceed.

3. An injunction will only be issued restraining a party who is amenable to the jurisdiction of the court, against whom an injunction will be an effective remedy;

4. Since such an order indirectly affects the foreign court, the jurisdiction must be exercised with caution.

15. Ms Wee argued that the injunction should not be issued because the wife intended to pursue the mainland proceedings, as, it was argued, she was required to, as a Chinese national, and that accordingly the injunction would not be an effective remedy. I reject this argument which, in my view, proceeds on a wrong view of the concept stated in principle 3 above. The wife is amenable to the jurisdiction of the Hong Kong courts. Indeed her papers make it clear that she seeks property orders in the mainland only in respect of two specified properties in Shanghai. She clearly intends to continue the litigation in Hong Kong in respect of the remaining property. If an injunction is granted and she acts in breach of it the husband has his remedies in Hong Kong and appropriate adjustment can be made in Hong Kong orders to reflect a result obtained by the wife in Shanghai in breach of any injunction. It is not an answer to an application for an injunction to say simply that the subject of the order will not obey it.

16. Mr Erving contended that the continuation by the wife of the mainland proceedings, was, having regard to the fact that she had commenced proceedings in Hong Kong, the state of those proceedings, and the difficulty the husband had in not being able to go to the mainland, both vexatious and oppressive.

17. In Societe Aerospatiale the Privy Council gave consideration to the issues of vexation and oppression. It is right that if proceedings in a foreign court are vexatious or oppressive an injunction may be granted to restrain their pursuit: see Societe Aerospatiale at p 893E. I accept Ms Wee's submission that the mainland proceedigns are not vexatious. They are not "so utterly absurd that they cannot possibly succeed": see Peruvian Guano v Bockwoldt (1883) 23 Ch. D. 225 at 230 approved in Societe Aerospatiale at 893.

18. In Societe Aerospatiale the Privy Council dealt with the issue of oppression in these terms:

""In particular, the possibility musty be borne in mind that foreign proceedings may be restrained not only where they are vexatious, in the sense of being frivolous or useless, but also where they are oppressive; and also that, as Bowen LJ observed, everything depends on the circumstances of the case, and new circumstances have emerged which were not, perhaps, foreseen by our Victorian predecessors. Their Lordships refer, in particular, to the fact that litigants may now be encouraged to proceed in foreign jurisdictions, having no connection with the subject matter of the dispute, which exercise an exceptionally broad jurisdiction and which offer such great inducements, in particular greatly enhanced, even punitive, damages, that they may tempt litigants to pursue their remedies there."

19. The Privy Council then analysed the development of the relevant law on vexation and oppression and concluded thus:

"...where a remedy for a particular wrong is available in both the English (or, as here, the Brunei) court and in a foreign court, the English court will, generally speaking, only restrain the plaintiff from pursuing proceedings in the foreign court if such pursuit would be vexations or oppressive. This presupposes that, as a general rule, the English or Brunei court must conclude that it provides the natural forum for the trial of the action; and further, since the court is concerned with the ends of justice, that account must be taken not only of injustice to the defendant if the plaintiff is allowed to pursue the foreign proceedings, but also of injustice to the plaintiff if he is not allowed to do so. So the court will not grant an injunction, if by doing so, it will deprive the plaintiff of advantages in the foreign forum of which it would be unjust to deprive him."

20. In Airbus Industrie G.I.E v Patel [1998] WLR 686, Lord Goff, who had delivered the judgement of the Privy Council in Societe Aerospatiale, adopted the dictum of Sopinka J in Amchem Products Inc v Workers' Compensation Board 102 DLR (4^th) 96 at 118-9 to demonstrate that the first step in the determination of an anti-suit injunction is to determine if the domestic court is the natural forum for proceedings. Only then, if it is the natural forum, does the court consider whether to grant an injunction on the grounds that the ends of justice require it.

21. It is clear that Hong Kong is, notwithstanding Chinese law, a natural forum for the parties dispute. They lived here, and the husband still lives here in Hong Kong. The wife clearly viewed Hong Kong as a natural forum when she began her proceedings, at time at which it is now clear she intended to go permanently to Shanghai. Property and assets of the parties are in Hong Kong. The law of Hong Kong applies to the parties world-wide assets if the proceedings are, as they have been, properly commenced in Hong Kong.

22. However it cannot be said that Hong Kong alone is the natural forum for the trial of the issues raised by the mainland proceedings. China is equally a natural forum. The wife is a Chinese national and is obliged to seek a divorce decree there. The child and the property at issue are in the mainland. These facts alone make the mainland a natural forum for the trial of the issues. I must determine the application bearing in mind that I cannot say that China is not a natural forum for the hearing of the issues raised by the Shanghai proceedings.

23. Before I consider the husband's argument on vexation and oppression I should dispose of, what may at first sight, seem to be an attractive argument, namely that it is wrong that a man should have to face two sets of proceedings on the same subject matter in two different jurisdictions, both brought by the same plaintiff. There is nothing inherently vexatious or oppressive in bringing actions on two countries where there are substantial reason of benefit to a plaintiff. I adopt the words of Jessel MR at 230 in Peruvian Guano supra:

"..it is not vexatious to bring an action in each country where there are substantial reasons of benefit to the plaintiff. He has the right to bring an action and if there are substantial reasons to induce him to bring the two actions, why should we deprive him of that right? It is very unpleasant, no doubt to be sued twice - it is unpleasant to many people to be sued once - but that still does not make it vexatious where the plaintiff seeks to get a real substantial advantage."

24. I accept that issues of additional costs and time and the possibility of inconsistent findings arise with two similar actions in two different countries. It is clear from Societe Aerospatiale that these are not matters which can be regarded as vexatious or oppressive.

25. The husband's real argument on oppression is, it seems to me two fold. First he contends that he is unable to go to the mainland as his life is at risk. But there is no evidence to support this assertion.

26. Second he says that he should not have to meet two sets of proceedings in two countries on the same subject matter, and that, in the circumstances of this case that is an oppressive situation.

27. As to the decree of divorce no issue really arises. Both want the decree. It matters not to the husband if another court grants a mirror order. He is not prejudiced by that decree alone.

28. As to the issue of custody Ms. Wee invited me to bring what she described as "an air of reality" to the question. The child is aged 5. He has lived with his mother throughout. He was only 3 when he went to live in Shanghai. There were periods during the marriage when the husband traveled for business purposes and the child was with the mother. There is not yet any evidence that reverse occurred. The husband has not seen the child since January 2000 and is having a great deal of difficulty in obtaining access or even the opportunity to talk to the child on the telephone. The child is now said to be extremely reluctant to have any contact with the father at all.

29. I do not for one moment condone the apparently obstructive manner in which the wife has conducted herself over the question of access. But in the light of these facts it must be said that the possibility that the husband will obtain an order for sole custody in his favour is remote. I cannot of course, having not heard evidence on the issue, dismiss the possibility, but it is remote. What is more likely is that orders will be required as to supervised access in order to restore the relationship between the father and the child. It may be that at some stage in the future the father may gain custody, but the reality is that that is not presently on the horizon.

30. The existence of the mainland proceedings does not in any way prevent the husband from pursuing his claim for custody and access in the Hong Kong courts. Having regard to the way in which the wife has apparently made it extremely difficult for the husband to see the child it is not likely that she would win a stay of the husband's application in this respect in Hong Kong on the basis that the matter was being dealt with by the mainland courts. The real issue between the parties in relation to the child is that of access and the continuation of the mainland proceedings does not prevent the husband pursuing access orders in Hong Kong.

31. I cannot say that the mainland courts are not a proper forum in which issue of mainland property should be considered upon the breakdown of a marriage. In that court the wife will be able to obtain orders in respect of the property which are capable of enforcement in the mainland. It is clear that the juridical advantage of powers of enforcement in the foreign jurisdiction is a significant factor: see Choi Sai-yu v Widepower Ltd. [1995] 1 HKLR 186.

32. For these reasons I conclude that it would be unjust to the wife to restrain her from pursuing remedies to which she is lawfully entitled in the mainland. The difficulties faced by the husband in having to answer the mainland proceedings do not outweigh the injustice to the wife by a restraint.

33. Accordingly the ends of justice do not require the grant of an injunction. The interim injunction granted on 11 September 2001 is accordingly discharged.

34. The question of costs is reserved.

Representation:

Petitioner: June Wee (Joseph Chu, Lo & Lau)

Respondent: Chris Erving (Erving Brettell)