Qmy v. Gss

FCMP 147 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MICELLANEOUS PROCEEDINGS NO. 147 OF 2012

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RULING
(Jurisdiction and Forum Non Conveniens)

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The Application

1.This is the respondent father’s application to challenge the court’s jurisdiction under the Guardianship of Minors Ordinance, (Cap 13) (“the GMO”) or alternatively, to stay the present proceedings on the ground of forum non conveniens in favour of a PRC Court.

2.On 12 July 2012, the applicant mother applied by way of an Originating Summons pursuant to section 10 of the GMO for an order of maintenance against the respondent in favour of their daughter G, who was born out of the wedlock on 8 August, 2007.  She asks for a monthly sum of $30,000 or such amount as the Court may consider appropriate.

3.As soon as the respondent filed his Acknowledgement of Service, he took out the present application on 24 September, 2012 for an order that:

1.  The Originating Summons be dismissed on the ground that the Court has no jurisdiction;

2.  Alternatively, all further proceedings in this action be stayed on the ground of forum non convenience and that the People’s Court of Siming District in Xiamen City, Fujian Province, the People’s Republic of China (“the Siming Court”) (福建省廈門市思明區人民法院) is the more appropriate forum;

3.  Alternatively, all further proceedings in this action be stayed pending the outcome of the proceedings in Mainland China.

4.Mr. Man, for the respondent, confirmed during the hearing that the respondent is not pursuing under paragraph 3.  Thus, I only need to deal with paragraphs 1 and 2.

Background

5.The respondent, a Hong Kong permanent resident, is married and has a family in Hong Kong.  His wife is in Hong Kong and his two children born by his wife are receiving education in Australia.  The respondent is the Regional Director for South China of a Hong Kong listed company.  He normally resides and works in the Mainland.  There is however no suggestion that he is domiciled in the Mainland.  As a matter of fact, the present proceedings were successfully served on the respondent in Hong Kong, and he also stated his address in Hong Kong on his Motion of Complaint submitted to the Siming Court.

6.As for the applicant, she has always been residing in the Mainland and has no right of residence in Hong Kong.  I do not think it is in dispute that she is domiciled in the Mainland. 

7.The applicant and the respondent first met in the Mainland when they worked together in about 1997.  They then developed an intimate relationship in about 2002 despite the respondent at that time was already married. 

8.In about 2006, the applicant became pregnant.  The respondent paid for the applicant to come to Hong Kong to give birth to G in August 2007. 

9.On 3 October 2007, the applicant brought G back to Guangzhou and two of them have been living there since then.  G is now about 5 ½ years old.

10.The  ’ relationship took a turn for the worst when it was made known to the respondent’s wife.  The couple broke up in August 2008. 

11.Apart from taking out the present application, the respondent also commenced proceedings in the Siming Court for the custody and maintenance of G on 6 September 2012.

12.The applicant (as the defendant in the Mainland action) contested the proceedings and won.  By a judgment handed down by the Siming Court on 14 January 2013, custody of G was given to the applicant. However, the Siming Court did not deal with the maintenance of G for the reason that, according to the respondent’s expert, (1) the applicant had not made her claim in the Siming Court, and (2) the applicant had already made her application to this Court. 

13.For obvious reason, the respondent was not satisfied with the judgment. On 3 March 2013, he lodged his appeal to the Intermediate People’s Court of Xiamen.  The appeal was heard on 11 April 2013.  I was told that according to the PRC laws, the judgment would be handed down within 3 months and the first instance judgment by the Siming Court is not effective yet.  As at the time of handing down this Ruling, the outcome of the appeal is not yet known.

Jurisdiction of the Court

14.The respondent argued that this Court simply has no jurisdiction to deal with the applicant’s claim for the reason that at the time of taking out the proceedings, G was not an ordinarily resident or physically present in Hong Kong.

15.Mr Man developed his arguments as follows.

16.Mr Man submitted that this is a matter of statutory construction.  The court has to look at the intention of the legislature to see whether the legislature did intend to impose, in the present case, any territorial limit. 

17.He pointed out that there is no specific provision in the GMO defining the territorial limits of the court’s jurisdiction in child maintenance proceedings.  The only relevant provision is section 26, which reads:

The jurisdiction conferred on any Court by this Ordinance shall be exercisable notwithstanding that any party to the proceeding is not domiciled in Hong Kong. 

18.But that, he said, certainly does not mean that there is no territorial limit.  It is absurd to say that the Hong Kong court has jurisdiction to determine the proper level of maintenance of all children in the world.  He cited Lawson v Serco Ltd [2006] ICR 250, where Lord Hoffmann, in para. 6 of the judgment, said:

“The general principle of construction is, of course, that legislation is prima facie territorial. The United Kingdom rarely purports to legislate for the whole world. Some international crimes, like torture, are an exception. But usually such an exorbitant exercise of legislative power would be both ineffectual and contrary to the comity of nations. This is why all   are agreed that the scope of section 94(1) must have implied territorial limits.”

19.Therefore, if there is no express provision, the presumption is that the legislature is intended to confine within its territorial limits. 

20.Mr Man also referred me to Re Dulles’ Settlement (No.2) [1951] Ch. 842 which suggests that the statute should only be applicable if the minor is within the jurisdiction, or is an ordinarily resident there.  In that case, the child was resident in England with his mother.  The question was whether the court had jurisdiction over the father who was an American resident abroad in respect of maintenance.  The governing statute provided for no express territorial limitation.  The English Court of Appeal held that the court would have jurisdiction, in those circumstances, if the father had submitted to jurisdiction; but then decided that in the circumstance of that case, the father had not submitted to jurisdiction. 

21.Mr Man conceded that the English Court of Appeal was concerned with a different question, ie in what circumstances the court would have jurisdiction over a father outside the jurisdiction, whilst the present case concerns a different question, ie in what circumstances would the Court have jurisdiction in respect of a child outside the jurisdiction.  Mr Man however argued that, in the discussions in this judgment, it is clear that the English Court of Appeal was of the view that the child would have to be within the jurisdiction.  He relied on the opinion of Denning LJ (as he then was) in that case,

“I take it to be clear that, if a child is within the jurisdiction of the Court of Chancery, it has power to order custody to the mother and maintenance against the father under the Guardianship of Infants Acts, even if the father is resident outside the jurisdiction …”

22.Mr Man informed me that, according to the learned authors of Dicey, Morris and Collins: The Conflict of Laws (15^th Edition 2012), at para. 19-156, Re Dulles’ Settlement was the only reported case on the jurisdictional limits of the court in child maintenance before the European regulations intervened in the UK.  He submitted that, quite clearly, Denning LJ was of the view that for the statute to apply, the child had to be within the jurisdiction.  The statute did not apply to children outside the jurisdiction.

23.Mr Man also invited me to consider the jurisprudence on the extent of the court’s inherent jurisdiction in wardship.  He drew my attention to para. 19-016 of Dicey, Morris and Collins, The Conflict of Laws (15^th Edition 2012) where it says:

“This is one of the very few departments of the English conflict of laws in which allegiance assumes prominence in the jurisdictional rules of the English court. This is because the inherent jurisdiction of the court over minors is derived from the sovereign as parens patriae. Traditionally the sovereign is interested in the welfare of his minor subjects who because of tender years are incapable of looking after themselves. ‘It is in the interest of sovereign that children should be properly brought up and educated; and according to the principle of our law, the sovereign, as parens patriae, is bound to look to the maintenance and education (as far as it has the means of judging) of all his subjects.’”

24.Mr Man relied on Re P. (G.E.)(An Infant) [1965] Ch. 568.  In that case the infant was ordinarily resident in England, but was removed by the father to Israel when proceedings were taken out.  Again the relevant legislation gave no guidance as to the geographical jurisdiction of the court.  The English Court of Appeal held that the court’s jurisdiction in wardship could be founded on (i) a child being a British subject; (ii) a child being physically present in England; or (iii) a child being ordinarily resident in England.  That is because under these situation the child owes an allegiance to the Crown, and reciprocally, the Sovereign has parens patriae jurisdiction over her.

25.Mr Man is of course fully aware that G is a Chinese citizen born in Hong Kong, as such she is a permanent resident, having the right of abode here.  He stressed that having the right of abode in Hong Kong is not the equivalent as being a British subject, and hence the Hong Kong court cannot found its jurisdiction on that basis.  The parens patriae jurisdiction is founded upon the infant’s allegiance to the Crown.  Being a British subject involves allegiance.  Having a right of abode in Hong Kong does not.  Indeed, there are many permanent residents in Hong Kong who are foreign nationals, and owe no allegiance to Hong Kong, or the Chinese State.  He said, after all, there is no such thing as “Hong Kong nationality”, and at most one pledges allegiance to the Chinese State, which does not solve any question as to whether the PRC court or the Hong Kong court has jurisdiction, given that both sets of courts are within China.

26.Mr Man therefore argued that since G was and is all along living with the applicant in Guangzhou, and there is no suggestion or evidence of ordinarily residence or presence in Hong Kong, this court accordingly has no jurisdiction to hear the maintenance summons. 

27.Mr Wong, for the applicant, relied on section 26 of the GMO, which I have set out in full above.  He submitted that on the clear wording of this provision, there is no ambiguity that the Court has jurisdiction to exercise its power under the GMO even though the applicant is not domiciled in Hong Kong.  

28.Mr Wong also relied on the following commentary in para. 7-143 of Graeme Johnston, The Conflict of Laws in Hong Kong (2^nd Edition):

7.143   The Hong Kong court’s jurisdiction to make orders for the financial support of a child is linked to its divorce and separation jurisdiction:

1.   …

2.   …

3.  The court also has wide jurisdiction to provide for support of a child by its parent without express limitation of jurisdiction in the relevant statute.  The cross-border limits on this jurisdiction appear to lie in the judicious discretion as to its practical exercise (bearing in mind enforceability) rather than in absolute rules. (emphasis underlined)

29.The comment is made with reference to section 10 of GMO. 

30.Lord Hoffmann’s ex cathedra statement in Lawson v Serco Ltd [2006] ICR 250 cited by Mr Man is certainly correct.  I agree that it is a matter of statutory construction as to whether or not there are any territorial limits to Section 10 of the GMO.  In my view, the starting point is to look at the legislation itself.

31.The wording of section 26 of the GMO is similar to that in section 17(2) of the UK Guardianship of Minors Act 1971 (“the 1971 Act”), the provision of which reads as follows:

17. (1) …

(2)  Nothing in section 15(4), (5) or (6) of this Act shall be construed as derogating from any jurisdiction exercisable, apart from those provisions, by any court in England or Wales; and it is hereby declared that any jurisdiction conferred by those provisions is exercisable notwithstanding that any party to the proceedings is not domiciled in England and Wales. (emphasis underlined)

32.The 1971 Act was post-Re Dulles’ Settlement (No. 2), supra.  Obviously, the dispute in Re Dulles’ Settlement (No. 2), supra arose because the statute at that time did not have any express provision dealing with the jurisdictional point.  Such dispute would not have arisen under the 1971 Act and Denning LJ’s opinion must be understood in the context of the question before him.

33.It is significant to note that by section 26 of the GMO, the legislature has chosen to extent the court’s jurisdiction over any party who is not domiciled in Hong Kong.  It seems to me quite clear that section 26 (and section 17(2) of the 1971 Act) is to tackle the problem arising from Re Dulles’ Settlement (No. 2), supra. 

34.The facts of Re P. (G.E.)(An Infant) [1965] Ch. 568 apparently bear more resemblance to the present case in that the child was out of the jurisdiction but that case was on wardship which is founded on a different jurisdictional basis. 

35.Apart from the jurisdictional provision in section 26, the other relevant provision is section 10 which is read as follows,

(1) The court may, on the application of either of the parents of a minor (who may apply without next friend) or the Director of Social Welfare, make such order regarding-

(a) the custody of the minor; and

(b) the right of access to the minor of either of his or her parents,

as the court thinks fit having regard to the best interests of the minor and to the conduct and wishes of the parents.

(2) The court may as regards a minor, on the application of a person with whom, whether by virtue of an order under subsection (1) or otherwise, custody of the minor lies at law, make in respect of the minor any one or more of the following orders-

(a) an order requiring payment to the applicant by the parent or either of the parents of the minor of such lump sum (whether in one amount or by instalments) for the immediate and non-recurring needs of the minor or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the minor before the making of the order to be met, or for both, as the court thinks reasonable having regard to the means of that parent;

(b) an order requiring payment to the applicant by such parent or either of such parents of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;

(c) an order requiring the securing to the applicant by such parent or either of such parents, to the satisfaction of the court, of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;

(d) an order requiring the transfer to the applicant for the benefit of the minor, or to the minor, by such parent or either of such parents, of such property, being property to which the parent is entitled (either in possession or reversion), as the court thinks reasonable having regard to the means of that parent;

(e) an order requiring the settlement for the benefit of the minor, to the satisfaction of the court, of such property, being property to which such parent or either of such parents is so entitled, as the court thinks reasonable having regard to the means of that parent.

(3) …

(4) An order under subsection (1) or an order under subsection (2) (other than an order for a lump sum payment in one amount, for a lump sum to be paid in instalments where all such instalments have been paid or for the transfer of property) may be varied, discharged, suspended or revived after being so suspended, by a subsequent order made on the application of either parent or after the death of either parent on the application of any guardian under this Ordinance, or (before or after the death of either parent) on the application of any other person having the custody of the minor by virtue of an order under subsection (1). (emphasis underlined)

36.For an application for maintenance under section 10(2), an applicant is the person with whom, custody of the minor lies at law.  In the case of an illegitimate child, normally it would be the mother who has the custody of the child.  Of course, if the father has obtained custody of the child, say, under section 10(1) or section 3(1)(d) of the GMO, he may also be the applicant.  The Director of Social Welfare would also be an applicant if custody of the child is vested with him pursuant to section 10(1). 

37.Section 26 of the GMO can be contrasted with those provisions empowering the court’s jurisdiction under the Matrimonial Causes Ordinance, Cap. 179 (“the MCO”).

38.Pursuant to section 3 of the MCO, the court has jurisdiction in proceedings for divorce if (a) either   was domiciled in Hong Kong, (b) was habitually resident in Hong Kong for three years or (c) had a substantial connexion with Hong Kong. 

39.On the jurisdiction over proceedings for nullity, the requirements are that (a) either party was domiciled in or had a substantial connexion with Hong Kong, (b) was habitually resident in Hong Kong for three years, (c) were resident in Hong Kong at the date of the petition, (d) the respondent was resident in Hong Kong at the date of the petition or (e) the marriage was celebrated in Hong Kong: see section 4, the MCO. 

40.On judicial separation, the requirements are that (a) either party was domiciled in Hong Kong, (b) both   were resident in Hong Kong, or (c) either of the   had a substantial connexion with Hong Kong: see section 5 of the MCO.

41.As for the custody and maintenance of the child of the family in proceedings for divorce, nullity or judicial separation, the relevant provisions can be found in the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“the MPPO”).  For instance, section 5 of the MPPO is on the financial provision for child of the family in cases of divorce and section 19 is on order for custody and education of children affected by matrimonial suits. 

42.I think two observations can be drawn.

43.The first is that the MCO is more restrictive in terms of jurisdiction.  There is no requirement in the GMO that either of the   must be habitual resident or resident of Hong Kong or have a substantial connexion with Hong Kong.  Mr. Man does not go so far as to say that the applicant in the present case, though not domiciled in Hong Kong, must be present in Hong Kong at the time of the application.  It seems to me clear that the intention of the legislature is to cast the net as wide as possible.  The wording is clear and unambiguous; the GMO applies to every person in the world. 

44.The second is that there are no provisions in both the MCO and the MPPO setting thresholds or limits that in order for the court to have jurisdiction to deal with the custody or maintenance of the child of the family, the child must be domiciled, resident or present in Hong Kong. 

45.Certainly, the legislature had its mind on the jurisdiction of the court; hence sections 3, 4 and 5 of the MCO were enacted.  It seems clear to me that the legislature has chosen to deal with the jurisdictional point by reference to the status of the   themselves but not their children. 

46.Hong Kong and Mainland marriages are daily occurrences now.  It is not uncommon for one of the   to reside just across the border in Shenzhen or even domiciled in the Mainland with their children and the other party to be in Hong Kong.  It is also not a rare occurrence that both   together with their children are residing in the Mainland, with substantial connexion with Hong Kong.  Some of the children in divorce cases might have been born in Hong Kong, but have never resided in Hong Kong, some might have never come to Hong Kong and some might have been living in Shenzhen but have to cross the border for attending schools in Hong Kong but all their parents are qualified to avail themselves of the jurisdiction of the court in their matrimonial proceedings.  It would be highly undesirable or unsatisfactory if the court can only exercise its jurisdiction over the children of the family if they are to meet certain additional requirements such as those proposed by Mr Man.  It means that there would be cases where the court has the jurisdiction to deal with the  ’ divorce or nullity proceedings but has no jurisdiction to deal with their children.  This could not be the intention of the legislature.  Imposing a further limit as proposed by Mr. Man would circumscribe the jurisdiction of the court. 

47.Returning to the GMO, I think the way in which the legislature deals with the jurisdictional point is the same as that for the MCO: the threshold is set against the   but not their children.  

48.Under normal circumstances and in the context of an application under section 10(2) of the GMO, the child normally would be residing with the parent seeking maintenance.  In the present case, it is undisputed that the applicant has always been domiciled in the Mainland.  She returned to the Mainland with G after her birth and took up residence there.  As a child, she had to live with her parents or at least one of her parents and there is no suggestion that G could have resided in Hong Kong with anyone else, being separated with her mother.  If section 26 allows the parent to apply not withstanding that he or she is not domiciled in Hong Kong, bearing in mind that there is no requirement that he or she has to be in Hong Kong or a resident here, it would be rather absurd or ridiculous to require the child to be present or a resident in Hong Kong. 

49.According to Benion, Statutory Interpretation (4^th Edition) 831, there is a “presumption that the parliament does not intend ‘absurd’ consequences to flow from the application of its Act”.

50.In my view, it is clearly contemplated by the GMO that either party, ie father or mother may not be residing or present in Hong Kong.  This shows that the scheme of the legislation contemplates making order in respect of children of foreign parents in certain circumstances.  Hence, there seems to be no particular reason for confining its jurisdiction to children who have either been resident in Hong Kong or casually been present in Hong Kong.  To impose a further hurdle by reference to the child would circumscribe the wide jurisdiction of the court intended to be conferred by the legislature under section 26 of the GMO.

51.The applicant has taken out the present proceedings as of right.  It would be absurd to say that despite section 26 of the GMO which gives the court the jurisdiction but because of the status of G, the court is deprived of its jurisdiction. 

52.For the above reasons, I do not agree with Mr Man. My conclusion is that by section 26 of the GMO, the legislature has chosen to extend the territorial limits by reference to the   but not to their children.  Paragraph 1 of the Summons must be dismissed.

53.I am of course fully aware of Hon Yuen JA’s dicta in the recent case of W v. C, CACV 36/2011 (date of judgment: 21 March 2013) where the whole family including the child was residing in the Mainland and it was held that the court had no jurisdiction to deal with the divorce proceedings for the reason that the respondent husband was not domiciled in Hong Kong.  Her Ladyship raised the concern that there may be difficulty in supervising access and enforcement of orders: see para. 30.3. The court should take the nature, importance and frequency of possible problems into account when deciding, even in a case where the court has jurisdiction, whether or not to invoke the forum non conveniens doctrine to decline jurisdiction: see para. 31.  This opinion echoes the comments by the learned author of The Conflict of Laws in Hong Kong (2^nd Edition) that I have referred to in para 28 above: that the cross-border limits on this jurisdiction (i.e. the GMO) appear to lie in the judicious discretion as to its practical exercise (bearing in mind enforceability) rather than in absolute rules.  This is what I am going to deal with under paragraph 2 of the respondent’s application.

54.Before I go to paragraph 2 of the Summons, I wish to add that even if I am flawed in my analysis and have come to a wrong conclusion, and even allowing that Mr Man is correct in saying that there must be a territorial limit in respect of the child in order for the court to exercise its jurisdiction, I am not still able to come to the same conclusion as Mr Man does, that G should be excluded. 

55.As has been stated by Lord Wilberforce in Clark v Oceanic Contractors Inc. [1983] 2 AC 130, at 152 and quoted by Lord Hoffmann in Lawson v. Serco Ltd. [2006] ICR 250 at 254H, the exercise “requires an enquiry to be made as to the person with respect to whom Parliament is presumed, in the particular case, to be legislating.  Who, it is to be asked, is within the legislative grasp, or intendment, of the statute under consideration?”

56.In my view, it must be correct to say that the legislature must have intended section 10 of the GMO to cover “the children of Hong Kong”.  Hence, the question is, who the children of Hong Kong are.  I have no argument with Mr Man that children who are ordinarily resident or present in Hong Kong should be qualified as such, but what about G in the present case?  I think the answer lies in whether G’s connexion with Hong Kong is substantial enough to bring her within the ambit of the GMO.  I consider the fact that G was born in Hong Kong, is a Chinese citizen with the right of abode in Hong Kong, and one her parents, ie the respondent, is a Hong Kong permanent resident and domiciled in Hong Kong should be sufficient to bring her within the scheme of the legislation.   

Forum Non Conveniens

57.Briefly stated, the respondent’s case is that the applicant was born, raised in the Mainland and have all along been an ordinarily resident there.  She has no family ties or assets in Hong Kong.  As for G, she was brought to live with the applicant in Guangzhou soon after her birth.  Since G’s living and her daily needs are all in the Mainland, and have no connection with Hong Kong, the Siming Court is better placed to assess the living standard and her required expenditure. 

58.Further, due to his employment, the respondent has to live and work mainly in the Mainland, and as a result, stays relatively less time in Hong Kong. 

59.For these reasons, it would be more inconvenient for the   if the dispute is to be dealt with by the Siming Court. 

60.The respondent also asserts that as from 2004 he and the applicant had some joint investments in properties in Guangzhou.  Apart from the property in Ersha Island of Guangzhou which was purchased subsequently in 2008, there were three other properties purchased in the sole name of the applicant, two of which have been rented out and one has already been sold with profits.  The respondent claims that there was an agreement between them that the profits generated by the investments would be used for further investments and any gains would be shared equally.  He further claims that subsequently there was an agreement that the rental income of the jointly owned properties would be used to meet the monthly expenses of G and that each of the applicant and the respondent would have ¼ share of the joint investment and that G would be entitled to ½ of the joint investments.  On that basis, the respondent says that as the provision for G is inextricably tied up with the distribution of the joint assets and income which should be governed by the PRC laws, and all the documents in respect of the joint investments and all the witnesses are in the Mainland, the Siming Court is the appropriate forum to deal with the dispute. 

The Applicable Principles

61.The established legal principles have recently been repeated by Hon Cheung JA in SA v. SPH [2013] 2 HKC 130 at 135F-136C,

12.    I will repeat the principles applicable to a stay application as stated by this Court (Cheung JA and Tang JA (as he then was)) in DGC v SLC (née C) [2005] 3 HKC 293, 297E-298B.  This Court applied the principles as stated in leading authorities such as Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460, 477E and Louvet v Louvet [1990]1 HKLR 670, 674I-675D:

‘1. The single question to be decided is whether there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of an action ie in which the action may be tried more suitably for the interests of all the   and the ends of justice?

2. In order to answer this question, the applicant for the stay has to establish that first, Hong Kong is not the natural or appropriate forum (appropriate in this context means the forum has the most real and substantial connection with the action) and second, there is another available forum which is clearly or distinctly more appropriate than Hong Kong.  Failure by the applicant to establish these two matters at this stage is fatal.

3. If the applicant is able to establish both of these two matters, then the plaintiff in the Hong Kong proceedings has to show that he will be deprived of a legitimate personal or juridical advantage if the action is tried in a forum other than Hong Kong.

4. If the plaintiff is able to establish this, the court will have to balance the advantages of the alternative forum with the disadvantages that the plaintiff may suffer. Deprivation of one or more personal advantages will not necessarily be fatal to the applicant for the stay if he is able to establish to the court’s satisfaction that substantial justice will be done in the available appropriate forum.’

The More Appropriate Forum

62.Mr Man submitted that the Siming Court could be an available forum for the applicant. 

63.First, the Siming Court has already assumed jurisdiction regarding the respondent’s application for both the custody and maintenance issues.  As stated in the judgment of the Siming Court, the reasons why the court did not rule on the maintenance issue were:-

‘因此,综合本案当前情况,从有利于子女健康成长的角度出发,以不改变(G)现有生活环境为宜,本院对原告要求抚养非婚生女(G)的诉讼请求不予支持。关于(G)的抚养费问题,被告并未提出主张,且被告已于2012年6月27日向香港特别行政区区域法院提出申请,故本案不作处理。关于(G)的探视问题,原被告双方均要求自行协商处理,本院予以准许。’

64.Therefore the reasons are that the applicant did not make such a claim and that the applicant had applied for maintenance in Hong Kong. 

65.Mr Man argued it follows that if the applicant had applied, the Siming Court would have considered it, and that if the Hong Kong court were to stay the present proceedings, she could go back to the Siming court.  These contentions are supported by the opinion of the respondent’s PRC legal expert. 

66.During the arguments, it has been suggested that the applicant has the right to have the action transferred from the Siming Court to a court in Guangzhou where the   are living.  As application of this nature essentially involves a comparative exercise, and the respondent has on his summons expressly specified the Siming Court as the appropriate forum, I do not think I need to deal with the application with reference to a court in Guangzhou:  see Hwoo Hwang Linda v. Fu Being San [2013] 1 HKLRD 259 at paras 50-59.  Indeed, I consider it is entirely inappropriate and even wrong for me if I do so. 

67.In their Joint Statement, both experts agreed that the courts in the Mainland have jurisdiction to deal with the issues on custody and maintenance (see page 47 of the bundle). 

68.The respondent’s expert is of the view that the applicant could either commence her claim in Xiamen, the locus of her registered residency status (“Huji” 戶籍) or in Guangzhou, which is her and the respondent’s usual place of residency according to article 22 of the PRC Civil Procedure Law (中華人民共和國民事訴訟法).

69.I do not think the applicant’s expert has squarely dealt with this question.  She seemed even to have suggested that pursuant to the said article 22, because of the fact that the respondent’s residency or status is connected to Hong Kong, the applicant’s claim should be dealt with by the Hong Kong courts. 

70.I think it is a matter of common sense that the PRC Civil Procedure Law (中華人民共和國民事訴訟法) would not apply to proceedings in Hong Kong. 

71.Mr Wong informed the court that G, by reason of her status as a permanent resident of Hong Kong, is not able to make a claim for maintenance in the Mainland, but this is not supported by any evidence or opinion of the experts. 

72.It seems to me that the reasons why the Siming Court has not dealt with the maintenance for G in favour of the applicant (as the defendant) is clearly because the applicant has not made out such a claim.  It would appear that the Siming Court might also have considered the fact that the applicant has already launched her claim in Hong Kong, but on the face of the judgment, and even on the basis of the experts’ opinion, there is nothing to suggest that the Siming Court has been deprived of its jurisdiction or has declined its jurisdiction.  I hold that the Siming Court is an alternative forum. 

73.As has been stated in Rambas Marketing Co LLC v Chow Kam Fai David, [2001] 3 HKC 250, at 255 BC

“The burden is on the defendant to show that the courts of Nevada are clearly or distinctly more appropriate than the Hong Kong courts for the trial of the action. Mere convenience is not enough nor is it enough simply to point to factors which connect a case or the   to any particular jurisdiction. The approach in forum non conveniens applications is not just an exercise in loading up with factors which point to any particular jurisdiction. The court is required to focus on the appropriateness of a forum from the point of view of the trial of the action. This would in part explain the need to identify the particular court in favour of which the action is to be stayed, for it is to the appropriateness of that court for the trial that the court’s attention is directed.” (emphasis underlined)

74.Mr Man submitted that the court is required to focus on the appropriateness of a forum from the point of view of the trial of the action, and in this respect, one should look at the real issues to be determined.  He initially stated there are two issues but during the hearing, he conceded that there are three.  They are:

(1)  The reasonable amount for the maintenance of G;

(2)  The alleged agreement on joint investments in PRC properties; and

(3)  Whether the financial resources of the respondent would impact on the amount of maintenance or the affordability of the respondent.

75.Mr Man submitted that the major issue must be the reasonable amount of the maintenance.  As G is now living in Guangzhou and there is no suggestion that she is to live elsewhere in a foreseeable future, in assessing the amount of maintenance, the court shall have reference to the living standard in Guangzhou and G’s living expenses there.  He said it is plain and obvious that the Siming Court is in a better position to perform such an exercise.  Further, of the subsidiary issue of how much the applicant can afford to pay, she has alleged that the rental income received was ‘far below’ the expenses for herself and G.  The Siming Court is obviously also in a better position in assessing the alleged expenses incurred by them in Guangzhou. 

76.As for the alleged agreement on joint investments, the agreement was made in Guangzhou and the investments are also situated in PRC.  It is plain that the relevant disputed matters are governed by the PRC Laws and the Siming Court would be in a better position to deal with them. 

77.On the affordability of the respondent, Mr Man submitted that there is no issue of ability to pay.  The applicant, on her Originating Summons, is asking for a monthly maintenance of $30,000 only.  But when I drew his attention to the provision in s. 10(2) of the GMO that the respondent may be ordered to make lump sum payments, periodical payments (secured or not), transfer of property or settlement of property as maintenance for G, Mr Man conceded that the consideration of the respondent’s financial resources could be a real issue.   

78.Mr Wong, on the other hand, argued that both G and the respondent are permanent residents of Hong Kong, the latter having a fixed abode in Hong Kong and Guangzhou, with his wife living in Hong Kong.  Further, the respondent is employed by a Hong Kong company and gets his pays in Hong Kong. 

79.Mr Wong argued that the only factor which relates to the jurisdiction of the Siming Court is the locus of the applicant’s registered residency status (戶籍).  On the other hand, there are factors as set out above, which relate to the jurisdiction of the Hong Kong courts.

80.Mr Wong also submitted that there is no evidence that the respondent has the ability to pay.  There is no Form E filed by the respondent.  Since the respondent is paid his salary in Hong Kong, the Siming Court would not have any materials regarding his salary. 

81.In her affirmation, the applicant also said that because of G’s status as a permanent resident of Hong Kong, she is not entitled to any benefit under the Mainland Social Welfare system.  Further, travelling to Hong Kong for the present proceedings is less costly and time consuming than travelling to Xiamen. 

82.It is important to bear in mind that the burden is on the respondent to show that not only that Hong Kong is not the appropriate forum but the Siming Court is clearly or distinctly more appropriate than Hong Kong.  Proper regard should be paid to the fact that the applicant did not need to obtain leave in order to commence the present proceedings.  She has commenced the present proceedings as of right.  I must also refrain from embarking on an exercise in just loading up with factors which point to any particular jurisdiction. 

83.To start with, I have no doubt that the fact that G could not take any benefits from the Mainland welfare system would not be changed and therefore, this fact is neither here nor there. 

84.The Siming Court, being a court in the Mainland, apparently should be in a better position in assessing the amount of maintenance, since in doing so the court would have to make reference to living standard and living expenses in Guangzhou.  However, the force of this advantage is lessened by two factors.  The first is the fact that Siming Court is in Xiamen, which is in entirely a different province. I do not think one can dispute that Guangzhou is the largest and most prosperous city in the Southern part of China, and in many ways it has the feature of a modern metropolitan similar to those in Hong Kong.

85.The second is that the respondent, in his action against the applicant in the Siming Court, is seeking the custody of G and maintenance against the applicant.  The Intermediate People’s Court has not handed down its judgment on the respondent’s appeal yet.  I cannot rule out the possibility that he would succeed in the appeal.  As can be seen from the judgment by the Siming Court and in the Social Investigation Report, it is the respondent’s plan that G would be relocated to live with him and his family in Hong Kong (see pages 56-1 to 56-2 and page 124 of bundle).  In that event, this seemingly advantage would instantly turn to be a disadvantage. 

86.In DGC v SLC (nee C) [2005] 3 HKC 293, the Court of Appeal noted that the Family Courts in Hong Kong have vast experience in dealing with cases of an international dimension.  Many involved large expatriate community in Hong Kong whose assets allocated in Hong Kong and overseas.  The Hong Kong courts regularly deal with the valuation of overseas’ properties and made orders thereto (see: 298I-299A).  Given the close relationship between Hong Kong and the Mainland, in particular Guangzhou, in the past decades, I consider that this observation would also apply to the present situation. 

87.For these reasons, while I consider that the Siming Court may be in a better position than the Hong Kong courts in assessing G’s needs, I should not place too much weight in favour of the respondent. 

88.As for the alleged joint investments agreement, the applicant denies there was such an agreement.  I accept this could be an issue in dispute in the trial.  I also agree that the relevant disputed matters should be governed by the PRC Laws.  If this issue is to be tried in Hong Kong, expert legal opinions from the   on the relevant area of law such as contract and real property would have to be obtained, which would mean added costs and time.  On the other hand, even the governing law on some of the disputed matters is the PRC Law, it does not render the Hong Kong court an unnatural and inappropriate forum to determine the applicant’s claim.  As has been commented, the Hong Kong courts are well adopted to hearing cases with an element of foreign law.  It is indeed increasingly common place that expert evidence of the PRC Law is adduced in the Hong Kong courts: see Wong Chi Hung v. 郭國基 & Ors, DCPI 1897/2012 (date of judgment: 2 May, 2013) at para 19.  In any event, this issue is merely one of the three issues that may need to be determined in trial. 

89.Turning to the respondent’s financial resources, I drew the   attention to LS v. AD, FCMC 34/2012 (date of judgment: 5 October 2012) and a couple of other cases such as Botanic Limited v. China National United Oil Corporation, HCA 1852/2005 and Shenzhen Futaihong Precision Industry Co. Ltd. & Anor v. BYD Co. Ltd.& Ors, HCA 2114/2007, where observations were made that there is no compulsory and comprehensive discovery and procedure for the administration of interrogatories under the PRC civil procedure.  

90.In reply, Mr Man submitted that the respondent has already stated in his affirmation that he is willing to provide the Siming Court with proof of his salary, if necessary.  He further submitted that there is no evidence on this issue from the  ’ legal experts.  I think it is fair for him to say so because the experts apparently were not tasked to give their opinion on this aspect.

91.Be that as it may, given that what we all know is we have a comprehensive discovery and interrogatories procedure in Hong Kong. I think it is safe to assume that as far as this issue is concerned, the Siming Court does not have any advantages over the Hong Kong courts. 

92.Whilst it is plain and obvious that apparently the   are much more connected to the Mainland than to Hong Kong, it seems to me quite clear that the only reason why the Siming Court was seized with the jurisdiction of the respondent’s action is because it is the locus of the applicant’s registered residency status (戶籍).  Apart from this, there is no suggestion that any of the   are related to Xiamen or any assets, transactions or matters which are relevant to the issues in dispute are related to Xiamen.  The fact that the applicant’s family is in the Fujian Province is entirely irrelevant.  Forum non conveniens is at heart a comparative exercise:  Hwoo Huang Linda v. Fu Being San [2013] 1 HKLRD 259 at para 55.  As the Siming Court is the only court specified in the respondent’s summons, I must consider whether or not this court is more appropriate.  It matters not that I might have come to a different conclusion if a court in Guangzhou is considered. This is simply not the application before me.  As said above, it has been suggested that if the applicant finds it inconvenient, she could apply to have the action transferred to a court in Guangzhou.  I do not think this assists the respondent. First, this is his application. The respondent cannot assume that the applicant would take out such an application.  Secondly, if the respondent considers that the applicant has valid grounds to do so, it would only add weight to support the contention that the Siming Court is not an appropriate forum. 

93.Thus, when the Siming Court is compared with the Hong Kong courts, it would appear that apart from the conveniences I have dealt with, there appears to have no other apparent conveniences or benefits to be gained from having the dispute to be tried by the Siming Court.  Both   need to travel, for the applicant from Guangzhou and for the respondent, from Guangzhou or Hong Kong, to Xiamen.  The applicant said, which is not accepted by the respondent, more time and money are needed for her to go to Xiamen.  She has to fly to Xiamen, while she only has to take land transportation for coming to Hong Kong.  Notwithstanding that the respondent has stated in his affirmation that all witnesses are in the Mainland, he has not identified who they are or whether they are in Xiamen or anywhere else in the Mainland.  In the event that any of the witnesses are in Guangzhou, it would mean they would have to take the trouble of going to Xiamen.  As has been commented, the fact that documents and even witnesses are located in Mainland China will now count for very little before the Hong Kong courts: see Hong Kong Civil Procedure 2013, at para. 11/1/10DB.  On the other hand, the respondent’s substantial presence in Hong Kong should not be ignored.  The applicant has commenced the present action as of right.  Thus analyzed, whilst it can be said that the   are more factually connected to the Mainland, it cannot be that said for the Siming Court or Xiamen so that it goes without saying that the Siming Court is a more appropriate forum. 

94.Looking at the matters in around, despite the fact that the Siming Court may have some advantages over the Hong Kong courts, I am not persuaded that the former is clearly or distinctly more appropriate as a forum than the latter.  I am not persuaded that the applicant’s choice of forum has been shown to be so inappropriate as to deserve the pejorative description of “forum-shopping” and to be restrained:  The Adhiguna Meranti [1987] HKLR 904, at 908A. 

95.For these reasons, I have no discretion to exercise. 

Legitimate Personal and Juridical Advantages

96.For the sake of completeness and in deference to  ’ legal representatives who have argued on this issue, I will deal with the legitimate personal or juridical advantages if the action is to be tried by the Siming Court. 

97.First, as far as the perceived inferior discovery and interrogatories procedures under the PRC Law are concerned, I accept that there is no expert evidence on the matter, hence I should not take this into consideration. 

98.However, I do not accept Mr Man’s arguments that discovery, in the context of a maintenance claim under the GMO, may not be as important as an ancillary relief claim.  Whether discovery is important or not must depend on the facts of the case, and perhaps, in some instances, it depends more on the honestly or integrity of the  .

99.There are of course some evidence from the respondent’s affirmation as to his means, but they are not given in the context of discovery and I have to say, they are bit and pieces.  Given that the Hong Kong courts are empowered to order, apart from periodical payment, a secured periodical payment, a lump sum payment, a transfer of property or a settlement of property, certainly it would not be sufficient for the respondent to merely disclose his proof of salary. 

100.This brings me to the differences in the remedies that the courts in the two jurisdictions may give.

101.Both experts stated that the Siming Court is empowered to award maintenance fee (撫養費) in favour of G pursuant to “Several Concrete Opinions of the Supreme People’s Court on the Problems of Bringing up Children in the Divorce Cases” (關於人民法院審理離婚案件處理子女撫養問題的若干具體意見) (page 49 of the bundle) and according to the respondent’s expert which, I believe, is not in dispute, for a defendant who has a steady income, the amount of the maintenance fee would normally be set at 20% to 30% of his monthly income.  If two children are involved, a higher percentage could be ordered, but normally the fee would not exceed half of the defendant’s monthly income.  In case of special circumstances, the above percentage may be lowered or increased. 

102.Hence, it can be seen that what the Siming Court could order would only be a monthly sum, with reference to the respondent’s monthly income.  There is nothing to suggest that the Siming Court would set the level of maintenance fee with reference to the respondent’s wealth or assets owned.  There is also no mention of future variation.

103.In contrast, as said above, in Hong Kong, there could be orders in various forms to cater for the needs of G, notably a transfer of property or a settlement of property order.  There is no doubt that G has a need for accommodation, and apparently on the face of the applicant’s Form E, the asserted monthly expenditure of G in the sum of $29,689 does not include her housing need. 

104.I bear in mind that in the Originating Summons, the applicant is asking for a monthly sum of $30,000 or such other sum to be assessed by the court as appropriate (或其他法庭釐定為合適的金額).

105.Mr Wong said that when the applicant commenced this action, she had no idea as to the respondent’s ability to pay, so she asked for such other sum to be assessed by the court. 

106.Mr Man conceded that the Originating Summons is just a starting point, there is nothing to prevent the court from awarding a higher sum, but he said that the applicant has not raised this issue as a disadvantage and further that, substantial justice could still be done by the Siming Court. 

107.In my view, the disadvantage is obvious and is embedded in the legislation.  If the action to be heard in the Siming Court, all G could get is a monthly maintenance, she would be deprived of at least the chance to ask for other remedies.  More importantly, she would also not be able to ask for variation of the order when she grows up.

108.Mr Wong also raised the difficulty in enforcement of the judgment against the respondent for the reason that the respondent’s substantial assets and ties are in Hong Kong. 

109.Mr Man argued that this perceived difficulty should not be a consideration entered into the balancing exercise because the respondent should not be presumed would be in default. 

110.It is trite that enforceability of a judgment is an advantage on which the applicant is entitled to rely and it can in an appropriate case be decisive.  I accept that where the respondent’s assets are probably in Hong Kong, difficulty in enforcing a Mainland Chinese judgment in Hong Kong could constitute a juridical advantage of Hong Kong: see Hong Kong Civil Procedure 2013 at para. 11/1/12E. 

111.To conclude, even I have to come to this stage and have to conduct a balancing exercise, I would still exercise my discretion in favour of the applicant. 

Conclusion

112.For the reasons aforesaid, the respondent’s summons is dismissed. 

Costs

113.There is no reason why costs should not follow the event.  I give an order that the respondent do pay the applicant’s costs of this application, to be taxed if not agreed.  This costs order is an order nisi which shall become absolute in 14 days. 

Mr N. Wong of Christine M. Koo and Ip, Solicitors for the Applicant 

Mr Bernard Man, instructed by Lo, Wong and Tsui, Solicitors for the Respondent