C v. C

FCDJ 7834 / 1997

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

DIVORCE JURISDICTION

NUMBER 7834 OF 1997

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BETWEEN

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Coram: Deputy Judge Carlson in Chambers

Date of Hearing : 21 November 1997

Date of Judgment : 27 November 1997

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JUDGMENT

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1. In this suit the husband petitions for divorce on the ground that the parties have lived apart for a continuous period of at least two years. I shall refer to them as the husband and the wife. I have before me three summonses which I will identify in the order in which I intend to deal with them in the course of this judgment. Firstly, a summons dated 30th September 1997 by the wife for an order that the husband's petition be dismissed or alternatively stayed on the ground that it is an abuse of the process of the court; secondly a summons by the husband dated 11th October for an order in the form of an injunction restraining the wife from proceeding with a concurrent divorce suit in the Higher People's Court in Shanghai; and lastly a summons again by the husband, dated 20th November 1997 seeking directions for the hearing of his petition in terms of an order that the petition be set down as an undefended cause.

2. The matter was last before me on 9th October 1997 when I heard ex parte the husband's application for an injunction to restrain the wife from proceeding with her suit in Shanghai. On that occasion I gave a ruling in a form of a judgment granting the injunction asked for by him. His summons which is the second of the three which I have referred to is the inter partes hearing of that application. In respect of all three summonses Mr Cheung who appears for the wife had asked for an adjournment. It appears that he has been unable to communicate with his client since 6th October notwithstanding the fact that he has written to her at the former matrimonial home in Hong Kong on more than one occasion and made several telephone calls. I am satisfied that the wife was served with my order of 9th October in Shanghai and that she was represented before that court on 13th October when her divorce petition was adjourned. I have refused to adjourn these summonses because I took the view that the husband should not be further delayed in these applications simply because the wife has failed to be attentive to her own case. She has at all times been represented by Mr Cheung who has dealt with this matter diligently and competently. I found it extraordinary that she has taken no step to communicate with her solicitors since 6th October notwithstanding that she would have been well aware of the ongoing nature of the proceedings before this court and particularly after she was served with my order of 9th October.

3. I now turn to the merits of the wife's application to strike out and / or stay the husband's petition. The essence of her case is that where she has filed her divorce petition in Shanghai prior to the husband's petition before this court the more appropriate jurisdiction is in Shanghai. That application is supported by an affirmation by her dated 6th October 1997 appearing at pg. 64 of the court's bundle. Before I go into the matter in more detail, it is helpful to adopt the relevant chronology and background which is set out in my ruling of 9th October last from pages 2 to 4.

"These parties were married in China on 8th October 1971. They have three children who are grown up; two are still being educated at universities in Canada and their other child is, in fact, also grown up and working in Hong Kong. They came to live in Hong Kong in 1980, and by 1982 they had acquired sufficient capital to set up a number of businesses here, and they were able to purchase what was to become their matrimonial home in McDonnell Road in 1986. In 1989 they emigrated to Canada, and whilst they remained in Canada for a sufficient period in order to comply with that country's immigration procedures, they continued to return to Hong Kong and spend time in Hong Kong looking after their various businesses. It would appear that from 1989 they have also invested in a number of businesses in China, and that they have also purchased a flat, amongst other properties, in Shanghai.

The marriage appears to have broken down in June of 1995, when the husband left the matrimonial home and went to live at another address in Hong Kong.

The wife petitioned for divorce on 20th September 1996 by a petition in the Shanghai People's Middle Court, and the husband then applied to that court to have that petition struck out on the basis that that court had no jurisdiction. On 12th November 1996, the Shanghai Court held that it did have jurisdiction. Put briefly, the point was that the husband was alleging that the court in Shanghai had no jurisdiction because the parties were not resident in China, and he appealed to the Supreme Court of the People's Republic of China sitting in Peking. That appeal was heard on 9th April 1997, and I have seen the judgment of that court. The Supreme Court reversed the decision of the court in Shanghai, holding that the court in Shanghai had no jurisdiction on the basis that, in fact, the parties were not resident in China.

Notwithstanding that, the wife came again on 28th June of this year. She has filed another petition before, I think, the High Court in Shanghai and her divorce has been listed for 13th October, which is next Monday.

The next matter of importance so far as this application is concerned, is that the husband has petitioned for divorce before this court on the basis that the parties have lived apart for a continuous period of at least two years prior to presentation of the petition. His petition is dated 1st August 1997. The wife did not enter an acknowledgement of service in the usual way, and from the papers it would appear that there was some difficulty in satisfying the court that she had been served. An application had to be made to His Honour Judge Bruno CHAN, who held that the wife had been properly served.

Then on 30th September, the wife took out a summons which is returnable on 21st October, seeking a dismissal of the petition in this court on the basis that the court in Shanghai is the appropriate forum. On the same day the husband took out a summons, which was heard on 6th October by Deputy Judge Day, seeking a decree nisi on the husband's petition forthwith. I observe that there was something of an unusual application to make and it comes as no surprise that it failed before the learned Deputy Judge. I have said enough from the chronology to indicate that something of a litigation race appears to have developed.

The husband, having failed to obtain a decree nisi forthwith before Judge Day then took out this summons to restrain the wife from pursuing her petition before the courts of Shanghai. I should make absolutely clear that if I thought it right to make an order in the form asked for by the husband that would of course in no way bind the court in Shanghai and it certainly is not my intention to say anything in the course of this judgment which should be taken as in any way influencing that court. The court in Shanghai is master of its own proceedings and it will no doubt do what it considers right in all the circumstances of the case on 13th October. I am, of course, exercising a domestic Hong Kong jurisdiction".

4. As I have already indicated it appears that the court in Shanghai has adjourned the hearing of the wife's petition although I am not aware of their reasons for doing so or when or whether the petition will be re-listed.

5. Given his difficulties in getting firm instructions from his client Mr Cheung has not been able to mount any sustained argument on her behalf. He draws attention to the matters set out in her affirmation of 6th October and he has also relied upon a further affirmation by Mr Mark Chin dated 21st November 1997 which although principally put in to support his application for an adjournment also drew attention at paragraph 15 to a statement of claim filed on behalf of the husband in a High Court action relating to the ownership of the former matrimonial home in McDonnell Road. The point made in respect of that is that the husband in that pleading describes himself and the wife as cohabitees rather than his husband and wife. From that Mr Cheung seeks to make the point that this must call into question the whole basis of the divorce proceedings before me. Mr Cheung says that there are therefore grounds for suspecting that this is not a marriage at all and that it must follow that these proceedings are a sham and should be struck out. From my part I do not accept that the description of the parties as cohabitees in the statement of claim is inconsistent with their marriage, although it is a rather curious way of describing them in the pleading. What is more to the point is that the wife plainly accepts that these parties were married in China. That is the whole basis of her divorce petition in China and she has never sought to contend otherwise in this court nor of course in China. The real point is to discover whether or not Hong Kong is the "forum conveniens". Miss Leong S.C. who appears for the husband has submitted that Hong Kong is overwhelmingly the appropriate jurisdiction for these divorce proceedings. She has referred me to the history of the parties connection with Hong Kong, that connection is referred to in my ruling of 9th October last, the relevant parts of which I have reproduced earlier in this judgment, and more fully in the husband's third affirmation of 6th October 1997. She has helpfully supported her case by reference to the three leading authorities on "forum conveniens" namely Atlantic Star (Owners) v. Bona Spes (1974) A.C. 436; The Abidin Daver (1984) A.C. 398; and de Dampierre v. de Dampierre (1988) A.C. 92.

6. Having regard to the evidence before me I have no doubt that Hong Kong is the natural forum for the hearing of this matter. These parties have made Hong Kong their home, they have acquired their wealth here, it is largely based here, they have brought their children up in Hong Kong and their matrimonial home is in Hong Kong. The mainland of China is of course their place of origin and their motherland but the fact remains that their closest connection over the last 17 years is with what is now the Special Administrative Region of Hong Kong. It is undeniable that they have built up business interests in Shanghai and that they have a flat there which was purchased to suit their business and domestic convenience when they were in Shanghai on business trips. But those connections are undoubtedly subsidiary to their real and closest connection with Hong Kong. Further, I can see no juridical or personal advantage to the wife in proceeding before the courts of Shanghai. I put it in that way because she has not alleged that sort of consideration before me in the evidence that she has filed. It is significant to notice from the cases, such as de Dampierre, that the party seeking a stay will often rely on those sort of considerations. None of that is brought to bear by the wife in making this application. Further, I consider that Miss Leong has a valid point in drawing attention to the fact that the current divorce proceedings in Shanghai are brought in the fact of a judgment by the Supreme Court of China that ruled in favour of the husband on the question of whether the Shanghai courts had jurisdiction. The wife has a judgment against her as to that and before me she has never sought to explain the basis upon which she has now decided to go again before the court in Shanghai. For all these reasons therefore I shall dismiss the wife's summons and I direct that the husband's petition can proceed before this court.

7. That then brings me to the related point of whether I should continue the injunction of 9th October restraining the wife from proceeding with her parallel proceedings in Shanghai. A convenient starting point is paragraph 14.12 at pg. 266 of the 16th edition of Rayden. The matter is succinctly put as follows :

8. "If the English court (the Hong Kong court in this case) concludes that it is the natural forum for the adjudication of the dispute it has been held that the court has power to grant an injunction restraining a party from pursuing proceedings in a foreign jurisdiction. But it is only in exceptional cases that an injunction to interfere with proceedings in a foreign jurisdiction should be ordered and such an injunction should only be sought for a limited period of time and for a limited purpose. It has been suggested that the alternative, and preferable route is to dismiss the application for a stay of the English proceedings unless an undertaking is given by the parties making it not to pursue the foreign proceedings". The authority referred to there is Hemain v. Hemain (1988) 2 FLR 388. The other relevant passage in Rayden is to be found paragraph 37.10 at pg. 893. It is in the following terms: -

9. "The court will not restrain a Respondent from taking family proceedings in a foreign country, unless it can be shown that the continued prosecution of the foreign suit would be oppressive and vexatious and such as to cause serious, if not irreparable, damage to the party seeking an injunction". In this regard I have already referred to the decision of all Orr-Lewis v. Orr-Lewis (1949) 1 All E.R. pg. 504, in giving my ruling on 9th October. My order that Hong Kong is the "forum conveniens" does not therefore automatically mean that the injunction now asked for by the husband will go to restrain the wife from pursuing her proceedings in Shanghai. I must move with care and restraint. The ex parte injunction of 9th October which was granted for a limited purpose and for a limited period, that is to say, until such time as the court was able to hear and rule upon the wife's application to strike out the husband's petition before this court has now run its course. That order, if I may say so, was one granted in accordance with the considerations and the principle set out in American Cyanamid Company v. Ethicon Limited (1975) A.C. 396 where the balance of convenience was wholly in favour of maintaining the status quo until after the hearing by me of the wife's application to strike out the husband's petition in Hong Kong. The injunction now asked for is of a more permanent kind.

10. I find the case of Hemain v. Hemain (Supra.) of great assistance particularly as a decision in this jurisdiction and on identical grounds. It is regrettable that neither Miss Leong nor Mr Cheung have availed themselves of the opportunity to address me on the basis of this authority and I have considered whether it would be right to defer judgment until such time as I gave them an opportunity to make further submissions to me, but in the end I have concluded that such a course would not be necessary. The case itself is afterall not obscure. It is referred to in the relevant chapter of the leading textbook and so I will now go on and deal with this aspect of the matter on the legal principles as I find them to be. On behalf of the husband Miss Leong has submitted that in any event the restrictions upon granting the injunction highlighted at paragraph 37.10 in Rayden to which I have already referred have been overcome by the husband in this case. She submits that the proceedings in Shanghai are vexations having regard to the fact that they are brought in the face of a judgment to the contrary from the Supreme Court in Peking; they are oppressive to the husband who has to deal with proceedings in Shanghai in circumstances where I have found Hong Kong to be the natural forum. Against that of course I bear in mind that the wife brought her divorce petition in Shanghai before the husband initiated his own proceedings here and she very properly took the step of seeking a stay of the husband's petition in Hong Kong. Secondly, I bear in mind that as a Chinese citizen she ought to, in the usual course of events, be able to go to the courts of her own country. There is also the practical point that in requiring her to take no further step in the suit in Shanghai I cannot influence that court. The judges in Shanghai as masters of their own jurisdiction will be at liberty to make such order or orders as they consider right in all the circumstances.

11. It occurs to me that the husband here will need to take some active step in the proceedings in Shanghai. I was told on 9th October by Miss Leong that should the wife proceed with her suit in Shanghai the husband's lawyers there would be seeking to dismiss the suit on the basis of the favourable judgment that they had obtained from the Supreme Court in Peking. Having regard to what I apprehend to be the correct principles, as reviewed by May L.J. in Hemain, I propose to grant the husband an injunction but one which is limited as to its purpose and as to its time. The husband will be required to use his best endeavours to bring on for hearing and to prosecute an application to strike out and / or permanently stay the wife's petition in Shanghai or such other equivalent relief as may be available to him before that court.

12. On those terms I grant him an injunction restraining the wife from taking any further steps in her suit before the Shanghai court, although of course she will be entitled to resist the husband's application for a stay before that court. I am not prepared to go any further at this stage. I will give both parties liberty to apply under this summons for further orders or directions as may be necessary. I have it in mind that the wife would be entitled to come and discharge the injunction if the husband were tardy in making his application in Shanghai, and I give the husband leave to apply to extend the injunction following the disposal of his application for a stay before the Shanghai courts if he requires such an order from me provided he can make out proper grounds for such an injunction. It follows from that that I have not thought it right to make the fuller order asked for by the husband before he has taken on the burden of going before the court in Shanghai and seeking a stay in those proceedings by that court. This injunction will hold the position until he has done so.

That then leaves that husband's summons to set his petition down in the undefended list in this court. Having dismissed the wife's application for a stay the petition must now take its ordinary course. I take the view that the wife's application for a stay has had the effect of stopping time and so I shall make an order that unless the wife files an Answer, within the period of time allowed under the matrimonial causes rules, that the husband shall then be at liberty to set his petition down in the undefended list.

13. As to costs I shall award the husband his costs in any event on the wife's summons for a dismissal of his petition before this court. In respect of the husband's summons for an injunction, where he has only been partially successful, it seems to me that the order which is most appropriate to the outcome is an order of costs in the cause in the husband's divorce petition, and I make an identical order in respect of the husband's summons to set his petition down in the undefended list. These orders for costs will be orders nisi. Should either party seek an order for costs of a different kind let them do so within 14 days of receipt by them of this judgment.