G v. G

FCMC008726/1995

IN THE DISTRICT COURT OF HONG KONG

DIVORCE JURISDICTION

SUIT NO. 8726 OF 1995

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Coram: His Honour Judge Bruno Chan in Court

Date of Hearing: 28th March 1996 and 1st August 1996

Date of Handing Down Judgment : 28th August 1996

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JUDGMENT

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1. This is the Respondent (Husband)'s application, by way of a summons issued on 15th November 1995, to dismiss the petition for divorce issued by the Petitioner (Wife) on the ground that Hong Kong does not have jurisdiction to entertain the divorce proceedings of the parties.

2. The petition was issued by the Wife on 6th November 1995 based on the Husband's behaviour and states that both the Petitioner and the Respondent have a substantial connection with Hong Kong at the date of the Petition.

3. At the hearing of the Husband's summons, Counsel for the Wife confirms that he only relies on the Husband's substantial connection with Hong Kong for jurisdiction as it is not necessary for him to prove substantial connection by both parties under Section 3(c) of the Matrimonial Causes Ordinance which reads as follows: -

"The Court shall have jurisdiction in proceedings for divorce under this Ordinance if either of the parties to the marriage had a substantial connection with Hong Kong at the date of the petition."

4. Where a petition is brought under Section 3(c) of the Ordinance, as in this case, it is normal to state in the petition the reasons for which it is alleged that the parties, or either of them had a substantial connection with Hong Kong. The Wife gives her reasons in Paragraph 3 and 4 as follows: -

5. As the Husband by his said summons disputes the question of jurisdiction, I directed that the matter be tried as a separate issue in open court and that the parties shall first file their evidence by way of Affidavit. The Wife's sister has also filed an Affidavit in support of the Wife's case but has not been relied on. At the trial, both parties also gave oral evidence and were cross-examined.

6. The Wife is a German national while the Husband is an Italian. They were married on 31st October 1985 at the Italian Embassy in Beijing, People's Republic of China, according to Italian Law. In or about 1989 the parties moved to Hong Kong where the Husband established his own trading company. Upon arrival in Hong Kong, the parties were each given a Hong Kong Identity Card which they have held up to today. The Wife was also given an employment visa upon which the Husband held a dependent visa as her spouse. Later the Husband obtained his own employment visa through his company. The Wife then took up a position with BfG Finance Asia Ltd. as an Assistant Manager. The parties settled in an apartment in Shouson Hill Road, Hong Kong which was provided by the Wife's employer as part of her employment terms. In June/July 1989 the Husband formed a trading company known as "I" Hong Kong (the Hong Kong Company) with which he would purchase goods in China and ship them directly to Europe without passing through Hong Kong. The Husband converted one of the bedrooms of the Shouson Hill apartment into an office for his business.

7. In March 1992 the Wife's employment was terminated and with the lease of their Shouson Hill apartment expiring and the expected substantial rental increase, the parties decided to move to Macau to save costs but where the Husband's business could be continued. They however continued to hold their Hong Kong Identity Cards.

8. Upon arrival in Macau the parties applied for work/residency visas but when they found out that they would have to pay fees of HK$38,000 per year each to maintain such visas, they withdrew their application and decided to live in Macau throughout on tourist visas. They also retained and continued with their Hong Kong employment visas with which they were entitled to reside in Hong Kong.

9. In or about March 1992 the parties purchased an apartment at Est Sete Tangues Ocean Gardens Edelweiss Court 5B Taipa in Macau in joint names as their matrimonial home (The Macau flat) for about $3.6 million. The Husband then set up a company in Macau known as "I" Trading Company Ltd. (the Macau Company) to continue with the business which he established in Hong Kong and again used part of the Macau flat for the office. The Hong Kong Company has continued in existence which the Husband claims for the purpose of a tax dispute with the Hong Kong Inland Revenue Department. The Wife however alleges that the Husband has used the Hong Kong Company as a sponsor to obtain the relevant employment/residence visa for the parties and later for their son.

10. Whilst they were living in Hong Kong, the parties had opened and operated several savings and current accounts in Hong Kong either in their sole name or joint names, as well as company accounts for the Hong Kong Company, and later, the Macau Company as well. The parties also had Visa and American Express Credit Cards issued in Hong Kong and a safe deposit box with the Hong Kong and Shanghai Bank in Central. Upon moving to Macau, they continued to use their accounts in Hong Kong. They have not opened any bank account in Macau either in personal name or in the name of the Macau Company, apart from an auto-pay utility account by the Wife to meet the household utilities charges. Instead they would travel to Hong Kong from time to time to do their banking.

11. In late 1993 the parties decided to purchase a property in Hong Kong and made frequent trips to Hong Kong looking for it. In December 1993 they purchased the property at Flat 4B, 27 Tai Tam Road, Hong Kong (The Hong Kong flat) for about $14.9 millions in cash. The property is registered in the Husband's sole name. At this time the Wife was already pregnant and the parties decided that she should give birth in Hong Kong. Therefore in March 1994 the Wife moved into the Hong Kong flat and stayed there for more than a month until the birth of their son. The child was born on 6th April 1994. After giving birth the Wife suffered post-natal depression and went to Germany with the son in July 1994 to be with her family for recuperation. The Husband remained in Macau.

12. In November 1994 the Wife and son returned to Hong Kong and then returned to live with the Husband in Macau, although they would continue to make trips to Hong Kong from time to time and would sometime stay in the Hong Kong flat.

13. On 1st April 1995 the Hong Kong flat was let out to the Swiss Bank Corporation for a term of 2 years at $100,000 per month. Some of the furniture and possessions in the Hong Kong flat had been sent to Macau, but others were left behind for use by the new tenant.

14. Since the Wife's return from Germany, the parties were experiencing marital problems and in April 1995 the Wife and son returned to her family in Germany and have since made their home there. In late 1995 the Wife through the German Social Affairs Department wrote to the Husband in Macau for child's maintenance. In September 1995 the Wife applied to the German Court for custody of the son. The application was opposed by the Husband on the ground that the Wife had already instituted proceedings in Hong Kong for divorce and custody. I do not know the present status of that application.

15. After the issue of the petition herein, the Wife obtained an order from this Court to restrain the Husband from disposing of his assets pending the determination of the divorce, and an interim maintenance order for $30,000 per month for herself and the son.

16. Upon being served with the divorce papers, the Husband returned the Acknowledgement of Service (Form 4) on 13th November 1995 indicating his intention to defend the petition on the basis that Hong Kong does not have jurisdiction to deal with the proceedings or in the alternative he denies that he has behaved unreasonably as alleged in the petition. On 15th November 1995 he issued the summons to dismiss the petition for want of jurisdiction which is now before me.

17. The Wife's case is that it is clear that the parties had established substantial connection with Hong Kong by 1992, having worked and lived here for almost 3 years, and that after the parties moved to Macau in March 1992, the Husband has never severed his established substantial connexion with Hong Kong. She bases her argument on the following evidence, most of which are not disputed by the Husband:-

18. The Wife argues that the above facts show that the Husband has never severed his substantial connection with Hong Kong after moving to Macau and in fact indicate a strong desire and intention to maintain substantial connection with Hong Kong. She inparticularly relies on the following incidents:-

19. The Husband admits that he has continued to operate the bank accounts in Hong Kong, but claims that some have since been closed and so has the safe deposit box in Hong Kong. As regard the Hong Kong flat, the Husband admits that it is his most valuable financial asset but that it is primarily an investment of off-shore nature.

20. The Husband contends that the fact his son was born in Hong Kong was simply because of his belief in the better medical facilities in Hong Kong and there was never any intention to raise his son in Hong Kong. As regard his membership of the Hong Kong Rotary Club which he joined while he was living in Hong Kong, he says he now rarely attends their meetings and points out that he is also a member of the Macau Wine Society in Macau. Lastly the Husband admits that he does travel to Hong Kong from time to time, but very often he would only spend a few hours in Hong Kong on each trip.

21. Counsel for the Husband submits that in considering the issue of substantial connection, one should look at the facts of the case to ascertain where was the base of the Husband at the time of the issue of the petition, and what was his future intention. She refers to various English authorities in connection with the recognition of foreign decrees including Indyka v Indyka and Welsby v Welsby and stresses the importance of nationality and place of the matrimonial home in determining substantial connection. It was argued on behalf of the Husband that at the time of the petition, i.e. November 1995, the Husband was clearly residing in Macau and that the parties' matrimonial home was in Macau. Counsel argues that the parties clearly intended to make their home in Macau in 1992 and that although they had at one time or another discussed the possibility of moving back to Hong Kong, the Husband had always decided against it and that his intention had always been to live in Macau to make more money before eventually going back to Europe. She says it is irrelevant whether the Husband regarded himself to have substantial connection with Hong Kong or not, one should look at the actual facts and the facts reveal no substantial connection. She then ventures to suggest that since the Wife is now living in Germany and has made application for custody of the son in the German Court, it would be more appropriate for the proceedings to be dealt with in Germany.

22. I find cases such as Indyka v. Indyka and Welsby v. Welsby not directly in point since they deal with the recognition by the English courts of a foreign decree. The present case is on different ground. The more relevant cases to which I have been referred are both Hong Kong decisions, Griggs v. Griggs and Savournin v Lau Yat-fung, in which Briggs J. said this in the latter case:-

23. On the evidence before me, I have no difficulty in finding both in fact and in intention that the Husband had substantial connection with Hong Kong at the time of the issue of the petition. The Husband and the Wife had clearly established substantial connection with Hong Kong in 1992 by the fact of having lived and worked here for almost 3 years. When they changed their residency in 1992 to Macau, I find that the Husband has maintained substantial connection with Hong Kong. He has gone out to make a major investment in Hong Kong, and has continued to hold and operate both his personal and company accounts in Hong Kong without finding it necessary to open any in Macau either for himself or his Macau Company. He has seen appropriate to maintain a Hong Kong employment visa and his Hong Kong GPO box with which he would receive his mail. He prefers to stay in Macau on a tourist visa and to renew or extend it regularly rather than obtaining permanent residency simply because of an annual charge of $38,000 per person. I find all these odd for a person who wants to make his home in Macau, if not permanently, at least for a long period. The Husband has in his own evidence admitted that he much prefers the lifestyle in Hong Kong and that if he could afford he would prefer to live in Hong Kong. I do not believe that someone who was able to pay $15 million for a luxurious flat in Tai Tam for investment cannot afford to live in Hong Kong. I think it is more a case of a very shrewd businessman who was unwilling to pay high rental in Hong Kong, decided to make use of the close proximity of Macau where living expenses were cheaper but with easy access to Hong Kong, with which he could maintain close contact and connection by retaining his status and right to freely enter and stay in Hong Kong by means of his Hong Kong Identity Card and employment visa, by maintaining his personal and business accounts as well as a company in Hong Kong with which he can easily continue with his business, and with the availability of a property in Hong Kong, so that with the drop of a hat he can easily relocate to Hong Kong anytime without any complication or difficulty. The arrangements were there. The intention was there. And his passport says so. When the Husband wrote to the Wife's sister in 1995 threatening legal action against the Wife, it was clearly in his mind that legal proceedings could and should be undertaken in Hong Kong. He tries to explain in his evidence that it was merely a bluff without the benefit of legal advice. He was however legally represented later when he tried to oppose the Wife's custody application in Germany by arguing that the German court should not entertain her application on the ground that their divorce proceedings were already taking place in Hong Kong, and yet he now argues that Hong Kong has no jurisdiction to deal with the same and seems to suggest that the German court is more appropriate. Clearly the Husband is changing his evidence or position whenever it suits him and I do not accept his argument, nor do I believe his explanation that it was a mistake of the Italian Consulate which wrongly stated in his passport of his residency in Hong Kong instead of Macau.

24. It is unnecessary to consider whether or not the Wife had substantial connection with Hong Kong, as there is sufficient evidence to show that the Husband had at the date of the petition. I am satisfied that this Court has jurisdiction to entertain the divorce proceedings between the parties and I therefore dismissed the Husband's summons with costs to the Wife to be taxed if not agreed with certificate for Counsel.

Representation:

Mr. I. Payne instructed by M/S Weir & Associates for the Petitioner.

Mrs. A. Mok instructed by M/S Robertson Doule & Lee for the Respondent.