Y v. W
Read the full judgment text of FCMC 1847/2011 on BabelCite. This Family Court judgment was delivered on 11 August 2011 before Her Honour Judge Chu.
Domicile – Jurisdiction – Matrimonial Causes Ordinance – Domicile Ordinance – Divorce Petition – Dismissal – Petitioner born in Mainland China, obtained HKID in 1995, moved to HK in 1997, married Respondent in 2003, resided in Mainland China after marriage. Whether Petitioner domiciled in HK at date of petition; Whether Petitioner abandoned domicile of choice. No jurisdiction; Petition dismissed. Costs to Respondent.
Legal issues: Domicile at date of petition · Abandonment of domicile of choice
Outcome: Petitioner’s divorce petition dismissed for lack of jurisdiction.
Cited by 2 cases
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FCMC 1847 / 2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 1847 OF 2011 ---------------------------- BETWEEN
---------------------------- Coram : Her Honour Judge Chu in Chambers (Not Open to Public) Date of Hearing : 20 July 2011 Date of Judgment : 11 August 2011 ----------------------------------------- J U D G M E N T ----------------------------------------- INTRODUCTION 1.The preliminary issue before this Court is whether the Petitioner (“W”) was domiciled in Hong Kong at the date of her divorce petition filed in these proceedings. 2.The Respondent (“H”) challenges W’s assertion that she was/is domiciled in Hong Kong and asks that W’s divorce petition be dismissed. In the alternative, H applies for these Hong Kong divorce proceedings to be stayed on the ground that it is more appropriate and convenient for the parties’ divorce to be decided by the courts in Mainland China , or alternatively the Hong Kong divorce proceedings be stayed pending the outcome of the parallel divorce proceedings there. 3.Mr. Chow, Counsel for W, has made it clear that he did not propose to argue that W was habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of the petition. It was not quite clear as to what W’s position was on the ground of “substantial connection” but, as this Court has pointed out at the outset that the only ground pleaded by W in her divorce petition was that she was domiciled in Hong Kong, this Court therefore does not intend to consider the other two grounds under s. 3 of the Matrimonial Causes Ordinance (“MCO”). 4.Parties have also agreed during the hearing that H’s stay application should be adjourned until the determination of the domicile issue and/or until the outcome of H’s appeal in those divorce proceedings in Mainland China. I have just been informed that H’s appeal has been dismissed on 18 July 2011. BRIEF BACKGROUND 5.Both H and W were born in Mainland China. According to H, their families have known each other for generations, and W’s family had “fostered several prominent figures in the PRC Central Government and generals of the People’s Liberation Army”. According to H, both families were deeply rooted in, and connected prominently with Mainland China. W’s parents are now retired and reside in Guangzhou with W’s brother. 6.It is not disputed that W was brought up in Mainland China and in 1990, at the age of 15, she went to study in the United States of America. She was living and studying in the United States until sometime in 1997. 7.W’s father apparently held a permanent Hong Kong identity card (“HKID”). Through this, W applied for and also obtained a permanent HKID on about 20 March 1995, which was during the time she said she was living and studying in the United States. 8.W said after she finished her studies in 1997, she moved to Hong Kong. According to W, she was working and was habitually residing in Hong Kong for a total of about 6 or 7 years, from 1997 until end of 2003/early 2004. W said she was at that time residing in a property on Robinson Road, which her mother had bought in 1992 and later sold in 2008. 9.In April 2001, W formed a company in Hong Kong called BCG Ltd. She was and still is a director and majority shareholder of this company. 10.Turning to H, like W, he grew up in Mainland China. He went to study in Canada when he was 18. After graduation, he said he worked in the IT field. In 2001, H became the Chairman and Managing Director of an IT company in Beijing (“Beijing Company”) of which he was a shareholder. 11.H was married once before and has a son, XY, from his first marriage. H has custody of XY. Although H also holds a permanent HKID, he says his domicile has always been and still is in Beijing, Mainland China. This was not disputed by W. 12.The parties met in 2002, and according to H, during that year, he and W started to cohabit in Beijing. W became pregnant in 2003, and the parties decided that W should give birth in Hong Kong. The parties’ son was eventually born in November 2003 at the Hong Kong Sanatorium Hospital, and is now 7 ½ years old. 13.One month after the birth of their son, the parties decided to get married in Hong Kong and this was in December 2003. 14.It is clear that the parties did not reside in Hong Kong after their marriage. H said he left Hong Kong and returned to Beijing. W said she and her son went to reside with her parents in Guangzhou, and so did XY, who also went to reside with W and her parents in Guangzhou. 15.According to W, she resided in Guangzhou for about 6 months, and then she moved to Shanghai due to her work, leaving the parties’ son and XY in the care of her parents. W said she then resided in Shanghai for about 6 month, and that it was only after over one year that she moved to Beijing with her son and XY, to reside with H. 16.The parties’ daughter was later born in Beijing in December 2007. She is now about 3½ years old. 17.Sometime in 2008, H sold his interest in the Beijing Company. There was a dispute between the Beijing Company and H, and in January 2010, the Beijing Company issued proceedings in Beijing against H for payment of a sum of RMB 5.417m. W apparently then became embroiled in this litigation, there being a dispute between the parties over the shareholding of the Beijing Company. Recently, on 24 May 2011, W has issued new proceedings in Beijing against H over this matter. 18.Anyway, in 2008, unfortunately, the parties’ relationship also started to break down. W stated in her divorce petition that the parties started to live separate and apart in March 2008. According to H, W moved out of the parties’ matrimonial home in Beijing to her own property also in Beijing, in June 2008. The matrimonial home is held in H’s sole name, and her property is held in W’s sole name. 19.Then on 6 December 2010, H issued divorce proceedings in the People’s Court of Chaoyang District in Beijing (“Chaoyang Court”), and seeks a divorce and custody of both children, and that each party is to keep his/her respective assets. According to H’s 2nd affirmation, by 18 January 2011, W should have received notice /service of such proceedings from the Chaoyang Court (para 36). 20.However, subsequent thereto, on 16 February 2011, W issued the present divorce proceedings in Hong Kong seeking a divorce, custody of both children and ancillary relief. 21.W contested the jurisdiction in H’s divorce proceedings in the Chaoyang Court, which resulted in a decision dated 9 June 2011 (“Beijing Decision”). In the Beijing Decision, the Chaoyang Court declined to deal with H’s divorce proceedings saying it would be more appropriate for the Hong Kong Court to deal with the parties’ divorce. 22.H alleged that W had made certain “gross misrepresentations” to the Chaoyang Court through her representative. Such misrepresentations included:
23.Further, in the Beijing Decision, the Chaoyang Court referred to Hong Kong District Court having accepted jurisdiction. This is clearly not correct, since this is in fact the major dispute presently before this Court. On 12 June 2011 H lodged his appeal to the Second Middle Level People’s Court in Beijing. After the hearing this Court received a letter from W’s solicitor that H’s appeal was dismissed on 18 July 2011 (“Appeal Decision”). H’s solicitors then wrote complaining and objecting about the way in which this evidence was introduced namely by sending a copy of the Appeal Decision to this Court without leave. I have read this Appeal Decision, but I am of the view that the question of domicile and jurisdiction before this Court does not depend on any decision of the Mainland Courts, particularly when there seemed to be conflicting evidence placed before the Hong Kong Court and the Mainland Courts. THE LEGAL PRINCIPLES 24.The jurisdiction of the Hong Kong Court in divorce proceedings has been set out in s. 3 of the Matrimonial Causes Ordinance (“MCO”), Cap 179. In particular, this Court shall have jurisdiction in proceedings for divorce if either of the parties to the marriage was domiciled in Hong Kong at the date of the petition or application (s. 3(a)). 25.In Hong Kong, the new Domicile Ordinance, Cap 596 ("DO") came into effect on 1 March 2009. This has incorporated the recommendations in the report of the Law Reform Commission of Hong Kong published in April 2005 on the Rules for Determining Domicile ("the LRC Report"). For easy reference, I would call the new provisions in the DO the “new law”, and those common law principles before the DO came into effect the “old law”. In fact, the Last Table in Annex 3 of the LRC Report provides a helpful brief comparison between the old law and the then proposed new law. 26.Mr Wong, Leading Counsel for H, has drawn this Court to certain provisions in the new DO. 27.S.3 of DO now sets out:
28.It is further set out in s. 5 of the DO that when an individual becomes an adult, he retains the domicile that he had immediately before he becomes an adult, and subject to certain provisions, an adult acquires a new domicile in a country or territory, if
29.The standard of proof of any fact which needs to be proved under the DO is a balance of probabilities ( s.12 of DO). 30.Further, s. 14 of DO sets out as follows:
31.As submitted by Mr. Wong, for an adult to acquire domicile under s.5(2) of the DO there is now the physical requirement of “presence” and the mental requirement of intention “to make a home there for an indefinite period of time”. 32.Mr. Wong has also pointed out that the physical requirement of ''presence” replaces the old common law requirement of "residence". From the word “presence” itself and the explanation in §4.87- §4.89 of the LRC Report, it is clear that the purpose was to lower the level of the physical requirement under the old common law rules so that if the requisite intention is proved, one may acquire a domicile in a particular place immediately upon arrival. Further, the new wording relating to the mental requirement, i.e. intention to make a home in the country concerned for an indefinite period, is designed to remove the suggestion in some of the older authorities that an intention to reside permanentlyis required for the acquisition of a domicile of choice (see § 13 of the Legislative Council Brief on Domicile Bill (“Legislative Brief”)). 33.Save for the changes set out in the DO, the common law authorities continue to be relevant. In particular, the common law authorities relating to the manner by which a person's intention may be ascertained continue to be applicable. 34.Mr. Wong has also referred this Court to cases such as Ross v Ross[1930] AC 1 at pp 6-7, and Re Steer(1858) 3 H & N 594 and submits that although a declaration by a person as to his domicile may be relevant in determining his intention, self-serving declarations are likely to be treated by the Court with suspicion. In §4.106 of the LRC Report, it is stated that a declaration on domicile should not be conclusive, but should be only one of the factors to be considered. The court should also look at the conduct of the person concerned and all the circumstances, and should not attach undue weight to a declaration. This part of the law has not been affected by the DO. 35.In the present case, although W has pleaded she was domiciled in Hong Kong at the date of her divorce petition, which is after the DO has come into effect, and the new law should apply, Mr. Wong has submitted that we still need to consider the old law as the old law would apply at the time when W claimed to have acquired a domicile in Hong Kong. 36.Mr. Wong has also referred this Courtto §6-049 of Dicey &Morris The Conflict of Laws14th Ed., which has set out some of the factors that have been taken into account by the courts in determining a person's intention (for the purpose of domicile). Mr. Wong has provided a summary of these factors as follows:
37.Mr. Chow, Counsel for W, does not dispute the legal principles put forward by Mr. Wong. Mr Chow further agrees that the burden of proof is on W to show that she has acquired a domicile of choice in Hong Kong, and in order for her to do this, that she would have to meet the requirements of the “old law”, and not the “new law” as set out in s. 5 of the DO. 38.Now, with the above principles in mind, I turn to the present case. MAIN ISSUES 39.Most of the above facts were not disputed and it was agreed by the parties’ respective Counsel at the commencement of this hearing that there is no need for W, or H, to give oral evidence. 40.It is further not disputed that at the time W was born, until the time she claimed she had acquired a new domicile, her domicile was Mainland China. Under the old law, her domicile of origin was Mainland China. The main questions here are:
DID W ACQUIRE A NEW DOMICILE OF CHOICE IN HONG KONG, WHETHER IN 1995 OR LATER IN 1997? 41.As mentioned earlier, it was not disputed by Mr. Chow that W’s domicile of origin was Mainland China. Although W went to the United States in 1990 and lived and studied there for about 7 years, it is not her case that she had acquired a domicile of choice in the United States. 42.Mr. Chow submits that W acquired a domicile of choice in Hong Kong on the date that she obtained her permanent HKID, namely on 30 March 1995 (although on W’s permanent HKID, the date of issue was stated to be February 1995), or at the latest sometime in 1997, when she came to live and work in Hong Kong. 43.So far as the first date of 30 March 1995 is concerned, I agree with Mr. Wong in that W could not simply say that she had acquired a new domicile in Hong Kong by relying only on the fact that she had obtained a permanent HKID. Mr. Wong has referred the Court to §6 of the Legislative Brief which describes the concept of domicile as follows:
44.As pointed out by Mr. Wong, according to W herself, she obtained the permanent HKID through her father holding one. There was no evidence that W was even in Hong Kong at the time, as according to her, she was at that time living in the United States. 45.Mr. Chow had argued that from W’s obtaining a permanent HKID, one could infer an intention on the part of W to stay in Hong Kong permanently. In 1995, the old law should apply, as this was before the commencement of the DO. The test was more stringent as set out in §4.103 of the LRC Report. In short, the burden of proof was on W and she had to prove that in 1995, she had a clear intention to reside permanently or indefinitely in Hong Kong before she could acquire a domicile of choice here. The standard of proof of displacing the domicile of origin was a higher standard than a balance of probabilities under the old law (see Last Table in Annex 3). W was 19 years old in February/March 1995 and still studying in the United States. There was little or no evidence to support that her clear intention in 1995 was to come to reside permanently or indefinitely in Hong Kong. There was not even a declaration from her to this effect. 46.What W said in paragraph 3 of her 1st affirmation was that she moved to reside in Hong Kong after she obtained the permanent HKID, with her permanent HKID, her HKSAR passport, and her Mainland-HK-Macau travel permit, she was travelling in and out of Hong Kong, to abroad, and to Mainland China. Then in paragraph 4, she said she moved to Hong Kong in 1997, and was “habitually residing in Hong Kong from 1997 to end of 2003/early 2004, when she left Hong Kong”. 47.It was in April 2001 that she set up BCG Ltd. a company incorporated in Hong Kong. There was no information as to what her work was before she set up BCG Ltd. It seems, however, that from her own evidence, that she was travelling between Hong Kong, abroad, Beijing and other parts of the Mainland after she said she came to reside in Hong Kong in 1997. 48.Although BCG Ltd has a registered office in Hong Kong, no lease was provided by W, and no audited financial statements or tax returns were exhibited to her affirmations. There was no information provided by W as to the area or size of the registered office of BCG Ltd. or whether any staff was employed by BCG Ltd. Anyway, W herself said in her 1st affirmation that the major activities of BCG Ltd. were all international cultural exchanges, and according to her, the company was set up in Hong Kong to facilitate international exchanges. Two of the activities of BCG Ltd described by W were in 1997 and 2000, and this was before BCG Ltd was even set up. Out of the other various activities between 2001 and 2010, it seems only two took place in Hong Kong and the rest all in Mainland China. 49.W produced her travel record from the Hong Kong Immigration Department, but only from February 2002 onwards. As shown in her travel record, during the 12 months from 18 February 2002 to 17 February 2003, she made 25 trips to Hong Kong, and the total number of days she spent in Hong Kong was only 97, i.e. about 27% of those 12 months. For the next 12 months from 18 February 2003 to 17 February 2004, she made 16 trips to Hong Kong and the total number of days she spent in Hong Kong was 108, i.e. about 29% of those 12 months. Thus during the last 24 months of a period when W claimed she was working and habitually residing in Hong Kong, she was only here less than one third of the time. W had stated that she was living in the property of her mother on Robinson Road in Hong Kong. The address she gave at the time of incorporation of BCG Ltd. was the Robinson Road address. She, however, did not disclose where she was living during the time when she was not in Hong Kong, i.e. two-thirds of the time between 2002-2004. Anyway, according to H, after the parties met in 2002, they started to cohabit in their matrimonial home in Beijing. W did not seem to have denied that. 50.Even for the period from 1997 to end of 2003/early 2004 when W claimed to be habitually residing in Hong Kong, she provided very little information about herself. There was no information as to whether she was holding any assets in Hong Kong, or bank accounts, apart from her shareholding in BCG Ltd. It was not clear whether she filed any personal tax returns in Hong Kong, or whether she held any club or association memberships during that period. 51.Having considered the above, I am of the view that W has not discharged the burden on her to prove, more than a balance of probabilities, that she had abandoned her domicile of origin and acquired a domicile of choice, whether by acquiring the permanent HKID card or by moving here in 1997, or by setting up BCG Ltd. here. The answer to the first question posed above is therefore in the negative.
52.Having formed the view as I did on the first question, there should be no need for me to go on to deal with this second question. However, I will also consider this in the event I were to be wrong on the first question. 53.My simple answer to this second question is yes. Even if W did acquire a domicile of choice Hong Kong in 1995, or 1997, or during the period she claimed she was habitually residing in Hong Kong, I am of the view that by marrying H in December 2003, and thereafter, on her own admission, leaving Hong Kong to reside in Mainland China, she has reverted to her domicile of origin. The reasons are set out hereinafter. 54.It can be seen in the Last Table in Annex 3 that married women’s dependent domicile applied under the old law. It is further set out in §1.28 of the LRC Report that, “For the purpose of the law of domicile, a married woman is a dependent person.” Accordingly, a wife could not acquire a domicile of choice, by her own actions, and was dependent upon her husband, although, as set out in §1.30, a married woman could have her own independent domicile for certain limited purposes. S.11C(2) of the MCO provided that a married woman’s domicile shall “be ascertained by reference to the same factors as in the case of any other individual capable of having an independent domicile”, instead of merely following her husband’s, but as set out in §1.30 of the LRC Report, s.11C(2) applied only for the purposes of Part II of MCO, and “ Generally speaking, a married woman’s domicile still follows her husband’s”. S.11C(2) of MCO was repealed on the same date when the DO came into effect, namely on 1 March 2009. The domicile of dependency of married women was thus only abolished as from this date. 55.At the time when the parties married in December 2003, the old law was still applicable. W’s domicile would be dependent upon H’s, and it was not disputed that H’s domicile was Mainland China. 56.Further, as mentioned above, in the 12 months from 18 February 2003, to 17 February 2004, W made 16 trips to Hong Kong, and spent a total of 108 days here. The longest uninterrupted period appeared to be one trip from 7 November 2003, about 9 days before the son was born, to 26 December 2003, about 10 days after the parties got married, a period of 49 days. The rest of the trips ranged from shortest of about 1-2 days to longest to about 6-7 days. It is clear that she came to Hong Kong for the purpose of giving birth. For the 12 months from 18 February 2004 to 17 February 2005, she visited Hong Kong 19 times, but the number of days had reduced from 108 days to only 65 days. W had herself admitted that she had ceased residing in Hong Kong after birth of her son. There is no evidence that she has resumed residing in Hong Kong since then. 57.H said W joined a well known non profitable charitable foundation based in Beijing in 2004 and founded by the Communist Party of China, being one of its youngest directors/committee members at that time, and has taken active part to raise funds and organized activities for this foundation. According to H, in 2006, W had set up a company in Shanghai, with another branch office in 2007 in Shanghai. Further, in 2008, W set up a management consultant company in Beijing. 58.The parties’ daughter was born in Beijing in December 2007. W’s mother sold the Robinson Road property on 11 January 2008. From 2007 onwards, W’s visits to Hong Kong were:
59.It can be seen from the above that since 2007, W has only been in Hong Kong for less than 10% of the time in a year. H claimed most of her visits were for shopping and vacations. Anyway, W herself said she left Hong Kong after her marriage to H and went to reside in her parents’ home in Guangzhou for about 6 months and then in Shanghai for about 6 months before returning to Beijing to live with H. According to her, after her mother sold the Robinson Road property in January 2008, during her visits to Hong Kong, W would stay in hotels or friends’ homes. However, W maintained that although she left Hong Kong, she had not given up her domicile in Hong Kong. She said she could speak fluent Cantonese, but it seems that her parents live in Guangzhou, and she herself resided in Guangzhou for 6 months, and also claimed to have resided here between 1997 to end of 2003/early 2004, her being able to speak Cantonese would not be surprising. 60.The parties’ son is now attending Primary 1 at a well known school in Beijing, and her daughter is now attending a bilingual kindergarten in Beijing. W has produced a “certificate” from the son’s kindergarten to state that since September 2007 when the son was enrolled in the kindergarten, it was W who would bring the son to the kindergarten, and it was again W who collected the son from the kindergarten, and that it was W who would take part in all activities held by the school. Further, in her 1st affirmation, W had stated that every weekend, she would bring the children to have a meal with H’s father, who lives in Beijing. There is no evidence as to whether W has any family members who are now living in Hong Kong. 61.There is no information that W held any other assets in Hong Kong at the date of her divorce petition, other than her interest in BCG Ltd. In the annual return to the Companies Registry in Hong Kong, she gave a residential address in Kowloon, which appeared to be the address of her co-director and shareholder of BCG Ltd. This was also the address W gave in her two affirmations. In her divorce petition, she however stated she was residing in Beijing. W has not provided any lease of this Kowloon address. There is no evidence that she resided at this address when in Hong Kong. There is at present no information on whether she has any bank account in Hong Kong. In fact, W has disclosed very little information about herself. 62.As mentioned earlier in this Judgment, according to H, W moved out of the matrimonial home to her property in June 2008. In W’s divorce petition, she gave this address as her residential address in Beijing, although it seems in the divorce proceedings in the Chaoyang Court, she apparently provided the Chaoyang Court a certificate from the management office to say that she was not living there. Anyway, there is no denial from W that this property is held in her name. H claimed this property was in fact bought by him in 2006 as his new residence, but W insisted that the property should be held in her sole name, which he eventually agreed. H claimed that he paid RMB 16m for W’s property, and according to him, this property is now worth RMB 100m. 63.Even if W did acquire a domicile of choice in Hong Kong between 1997 to end of 2003/early 2004, I am of the view that after her marriage, she has abandoned her domicile of choice and reverted to her domicile in Mainland China where she has been residing for the past 7 years or so. CONCLUSION 64.By the time of W’s divorce petition, the DO has come into effect. The physical requirement of “presence” has replaced the requirement of “residence.” As Mr. Wong has submitted, this has lowered the level of the physical requirement under the old law so that if the requisite intention is proved, one could acquire a domicile in a particular place immediately upon arrival. However, there is still the requisite mental requirement, in that W has to prove that she intends to make a home in Hong Kong for an indefinite period. 65.Up until now, in neither of W’s two affirmations did she indicate that she had the intention to leave Mainland China or to abandon her home there, or is about to move to reside in Hong Kong. As at the date of her divorce petition, there was simply no evidence at all that W had intended to move to Hong Kong from Beijing to set up a home here in Hong Kong for an indefinite period. She ceased to reside in Hong Kong after the parties’ marriage, or early 2004. 66.Mr. Chow has submitted that W’s issuing the petition in Hong Kong was not a tactical move. W was extremely concerned as notwithstanding that she had been the primary carer of both children of the family, H in his divorce proceedings in Beijing has claimed custody of both children. W has provided a legal opinion which seems to indicate that where there are two children of the family, the courts in Mainland may decide each parent is to have one child, notwithstanding the fact that W has been the primary carer of both children. Mr. Chow submits that W issued the petition in Hong Kong only in the best interest of the children, as sibling relationship is one of the matters the Hong Kong Court will take into account when considering their welfare, especially when so far they have been living and growing up together. 67.While I may have sympathy with W in this regard, this does not mean she is domiciled here. Having considered all the evidence, I am not satisfied that W has discharged her burden of proving that her domicile at the date of her petition was Hong Kong. 68.In the above circumstances, this Court has no alternative but to dismiss W’s divorce petition for lack of jurisdiction. Costs normally follow the event, and I will give a certificate for two Counsel. I will make an order nisi to this effect. Further, in view of my decision, there should be no need to deal with H’s stay applications, at this stage, I will simply adjourn H’s stay applications sine die with liberty to restore. ORDER 69.My order is thus:
70.I also propose to make a note for the Taxing Master and for the purpose of taxation, the costs in preparing Skeleton Submissions for the Respondent on Habitual Residence and Substantial Connection, and the authorities thereon should not be allowed.
Petitioner : Mr. Enzo W H CHOW, instructed by Messrs. K M Lai & Li Respondent : Mr. Horace WONG, SC, and Mr. Clark WANG, instructed by Messrs. W. K. To & Co | |||||||||||
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