Qmy v. Gss

FCMP 147 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 147 OF 2012

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D E C I S I O N
(Leave to appeal)

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The Application

1.This is the respondent father’s application for leave to appeal against my Ruling handed down on 27 May 2013 (“the Ruling”) dismissing his summons (“the Summons”) to challenge the courts’ jurisdiction under the Guardianship of Minors Ordinance, Cap 13 (“the GMO”) and to stay the present proceedings on the ground of forum non conveniens.

2.Together with this application also comes before me the respondent’s application seeking leave to re-re-amend the Summons.

The Background

3.As the factual background to the application has already been set out in the Ruling, I will not repeat it here.  Suffice for me to say is that in the present proceedings the applicant mother seeks maintenance against the respondent for their daughter G, who was born out of wedlock and is now 6 ½ years old.

4.G was born in Hong Kong and hence a Hong Kong permanent resident.  However, it is not in dispute that the applicant is domiciled in the Mainland.  Shortly after the birth of G, the applicant returned to Guangzhou together with G and has since been living there. As for the respondent, it is common ground that he is domiciled in Hong Kong. 

5.By the Summons, the respondent seeks the following orders:-

(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”) (福建省厦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.

6.The respondent abandoned paragraph 3 in the substantive hearing.  Thus, only paragraphs 1 and 2 are in issue. 

7.Briefly stated, the thrust of the respondent’s argument is that for the court to have jurisdiction over the matter under the GMO, the child must be either within the jurisdiction of Hong Kong or she is domiciled, ordinarily or habitual resident in Hong Kong. In the present case, G does not fall within anyone of the situations and therefore this court does not have the jurisdiction to deal with the matter. Of course, as an alternative, the respondent’s second limb of the application is that the Siming Court is clearly or distinctly more appropriate as a forum than this court.

8.As mentioned, there is also an application to re-re-amend the Summons.  The amendment is to add the court in the Guangzhou City alongside with the Siming Court in the comparative exercise; and if granted, will be read as follows (with the proposed amendment underlined):

“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 (福建省厦門市思明區人民法院), or alternatively, the People’s Court in Guangzhou City, Guangdong Province, the People’s Republic of China (廣東省廣州市天河區人民法院) is the more appropriate forum;”

9.Mr Lin, appearing for the respondent, submits that the application for the amendment is to be dealt with together with the application for leave to appeal. 

The Legal Principles

10.The relevant test governing applications for leave to appeal from the District Court is provided in 63A(2) of the District Court Ordinance (Cap 336) (“the DCO”):-

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that –

(a) The appeal has a reasonable prospect of success; or

(b)   There is some other reason in the interests of justice why the appeal should be heard.” [emphasis added]

11.The Court of Appeal discussed the application of s 63A(2) of the DCO in Sunny Tadjudin v. Bank of America, National Association, HCMP No 691 of 2012, unreported, 29 June 2012 at paras. 8 – 10:-

“8. Under section 63A(2) of the District Court Ordinance, Cap. 336, leave to appeal to the Court of Appeal shall not be granted unless the Court of Appeal is satisfied that the appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice why the appeal should be heard. Counsel relies on both limbs in section 63A(2) in seeking leave to appeal.

9. Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (SMSE v KL [2009] 4 HKLRD 125 para 17). Furthermore, it is pertinent to bear in mind that even if there is a reasonable prospect of success on appeal, the court still retains a discretion whether to grant leave to appeal, although the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion (Ho Yuen Ki Winnie & Ors v Ho Hung Sun Stanley & Anr. HCA 391/2006, 25 May 2009, A Cheung J para 3; and HCMP 1009/2009, 24 August 2009, para 22). [emphasis added]”

12.Mr Lin also refers me to Ma Bik Yung v Ko Chuen [2009] 3 HKC 359 where the Court of Appeal held that it was not necessary for the court to consider in detail the lengthy written arguments and authorities of counsel in support of their respective cases. What was required for the purpose of this application was for the applicant to show that he had an arguable case with reasonable chances of success on appeal.

13.I do not think this is a different test.

The Amended Grounds of Appeal

14.The respondent relies on the grounds set out in his Amended Draft Notice of Appeal which was only served a few days before the hearing.  Mr Yim, for the applicant, raises no objection to this.  

15.Notwithstanding that there are 4 grounds on the jurisdiction issue and another 4 grounds on forum non conveniens,  Mr Lin seeks to advance his arguments covering all the grounds under the same issue in one go.  I will therefore deal with the grounds in the same manner.

The Grounds on the Jurisdictional Point

16.The 4 grounds on the jurisdictional point are as follows:-

1. The learned judge was wrong in law in holding that the jurisdictional threshold is set against the parties but not their children.  (see Ruling para. 47)  The learned judge ought to have held that the jurisdictional threshold is set against the children who are the subject of the application.

2. The learned judge was wrong in law in holding that the Court has jurisdiction to deal with the Applicant’s claim in her Originating Summons dated 12^th July 2012 notwithstanding that the parties daughter was neither within the jurisdiction nor did she domicile/ordinarily/habitually reside in Hong Kong at the material time.  (see Ruling paras. 52 – 56)

2A. The learned judge was wrong in law in holding that Section 26 of Guardianship of Minors Ordinance (Cap. 13) gave the Court a wide jurisdiction when on a proper construction of the section it is only a provision to remove domicile in Hong Kong as a restriction under the GMO.

2B. The learned judge erred in law in holding that there was a concept of “the children of Hong Kong” and a substantial connection with Hong Kong should be sufficient to invoke the jurisdiction of the GMO and being born in Hong Kong as a Chinese citizen with the right of abode in Hong Kong and with one of the parents being a Hong Kong permanent resident and domiciled in Hong Kong amounted to a substantial connection with Hong Kong, when the GMO contains no such provision and the learned Judge failed to give any reason as to the grounds upon which the Ruling was based. (see Ruling para. 56)

17.Mr Lin submits that the reasoning for my ruling is premised on the following propositions:

(1) There is no jurisdictional limitation in the GMO since the GMO contains no requirement for residence in or connection with Hong Kong.

(2) The threshold in the GMO is set against the parties but not their children.

(3) Section 26 of the GMO gives the court a wide jurisdiction.

(4) There is a concept of “the children of Hong Kong” covered by the GMO.

18.Mr Lin argues that if the court is right in saying that there would be no jurisdictional limitation because the GMO imposes no such restriction, then section 26 of the GMO would have been otiose.  The fact that the legislature took the trouble to legislate section 26 must mean that the GMO is not without jurisdictional limits.  Then the questions must be (1) what are the limits and (2) what is the effect of section 26.

The Limits of s.26, the GMO

19.On the question of the limits of section 26, he relies on a recent Court of Appeal decision in LN v SCCM, CACV No. 62 of 2013 (4 June 2013), which concerned a relocation application under the GMO, where Hon Cheung JA had this to say at paras. 29 and 30:

“In jurisdictional challenges which may involve children, their interest is a matter of high importance: Re V (Forum Conveniens) [2005] 1 FLR 718. I am prepared to proceed on the basis that, in general, the jurisdiction where the children habitually reside should try the matter. In the absence of express statutory provisions, this is a matter of good common sense rather than a recognized custom or convention. After all, if the children are here, issues concerning their well-being can be conveniently dealt with in terms of the Court’s local knowledge and experience on the way they are to be raised and educated, inquiry by social workers and experts, testimony from witnesses and the Court’s wish to hear the views of the children directly. More importantly, this will ensure that there is no undue disruption of the children’s normal daily life when the matter is heard on home grounds. Without going into a discussion on the legal meaning of habitual residence, it does appear that that the children have habitually been residing in Hong Kong.

It is of note that in the context of the Hague Convention on the Civil Aspects of International Children Abduction 1980 which applies to both Hong Kong and Singapore, the underlining principle is for the abducted child to be returned to the jurisdiction of his habitual residence and his home Court to adjudicate on issues of his custody and access.”

20.Mr Lin contends that what was said by Hon Cheung JA in LN v SCCM above supports the argument that the GMO does have jurisdictional limits and, in the absence of express statutory provisions, the jurisdiction where the children habitually reside should try the matter. 

Discussion

21.The gist of my ruling in this regard is that, upon a proper construction of the enactment as a whole, it is clear and unambiguous that the jurisdictional threshold of the GMO is set against the parties but not their children.

22.Given that the applicant for a claim under section 10 of the GMO has to be “a person with whom custody of the minor lies at law”, it is only natural, and there is nothing wrong, that the territorial threshold is set against the parties (normally the parents) but not their children.

23.Upon a careful reading of the judgment in LN v. SCCM, CACV No. 62 of 2013, such decision does NOT assist the respondent at all.  That case was a case on discretionary stay of proceedings, and hence, what Hon Cheung JA said at para 29 of the judgment must be read in the context of such an application that “in general, the jurisdiction where the children habitually reside should try the matter” (emphasis added).  There is no question before the Court of Appeal in that case as to the jurisdictional limit of the GMO.

The Effect of s.26, the GMO

24.On the question of the effect of section 26 of the GMO, it is argued by Mr Lin that Section 26 is nothing more than a provision to remove domicile in Hong Kong as a restriction under the GMO: “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”.  It does not confer unlimited jurisdiction on the Court.

Discussion

25.Mr Lin’s argument, in essence, is that the fact that the legislature took the trouble to legislate s 26 must mean that the GMO is not without jurisdictional limits. With respect, the two does not follow.  For the reasons that I have already said, upon the proper construction of the GMO, obviously the presence of s 26 is to make it plain that the GMO does not have territorial limit.  Had the legislature intended to restrict the jurisdiction of the GMO as contended by respondent, one would expect such restrictions to be expressly and clearly prescribed in a manner similar to ss 3 to 5 of the Matrimonial Causes Ordinance, Cap 179 (see paras. 37 – 47 of the Ruling).

26.I also need to mention that Mr Lin also seeks to rely on the jurisdictional limits of the court under s 6 of the Parent and Child Ordinance, Cap 429 (“the PCO”), the relevant provisions read as follows :

(1) Any person may apply to the court for a declaration that-

(a) a person named in the application is or was in law his parent;

(b) he is the legitimate child of his parents; or

(c) he has become, or has not become, a legitimated person.

(2) A court shall only have jurisdiction to entertain an application under this section if, at the date of the application, the applicant-

(a) is domiciled in Hong Kong;

(b)  has been habitually resident in Hong Kong throughout the period of 1 year ending with that date; or

(c)  has a substantial connection with Hong Kong.

(3) ...

(4) ...

(5) ...

(6) ...

(7) No declaration which may be applied for under this section may be made otherwise than under this section by any court.

(8) ...

27.Mr Lin argues that if parentage is disputed in an application under s 10 of the GMO, the issue can only be determined pursuant to the said s 6 and there is such a jurisdictional limit on the basis of the status of the applicant child.  He seemed to be saying that s 10 of the GMO should be read in the light of jurisdictional limit under the said s 6.

28.With respect, I do not agree.  First, s 6 is concerned about the jurisdiction of the court in giving a remedy by way of a declaration on parentage.  As for s 10 of the GMO, it is about the making of orders regarding custody, access and maintenance.  The issues that the court have to deal with are entirely different ones.  Secondly, the applicants are different as well.  For the PCO, the applicant is the child but for the GMO, the applicants are the parents or the Director of Social Welfare.  There is simply no basis for Mr Lin to contend that the 2 provisions should be read together. 

“The Children of Hong Kong”

29.Mr Lin also puts forward another argument that in introducing the concept of “the children of Hong Kong”, the court has not explained how the concept came about.  It does not appear to be supported by any authority that a substantial connection with Hong Kong should be sufficient to invoke the jurisdiction of the GMO and being born in Hong Kong as a Chinese citizen with the right of abode here and with one of the parents being a Hong Kong permanent resident and domiciled in Hong Kong amounts to a substantial connection with Hong Kong.

Discussion

30.As Mr Yim for the respondent has correctly pointed out, what I said was merely an obiter. I have clearly said that if I were wrong in holding that the GMO does not have any jurisdictional limit, I am still not able to come to the same conclusion as Mr Man, counsel for the respondent in the previous hearing does, that G should be excluded (see para 54 of the Ruling). 

31.I fail to see how this would assist the respondent if he is not able to demonstrate a reasonable prospect of success on the primarily grounds.

32.To me, the only new point raised in this application is the recent Court of Appeal case of LN v SCCM, CACV No. 62 of 2013 (4 June 2013).  As said above, this case does not assist the respondent at all.

33.For the reasons aforesaid, I do not find the respondent has any reasonable prospect of success on the issue of jurisdictional limit of the court. 

The Interest of Justice

34.Finally, Mr Lin submits that in the absence of authorities from the higher court on the jurisdictional limits of the court under the GMO, it is in the interest of justice for the Court of Appeal to determine the issue.  In my view, absent an authority from the higher court per se is not good enough.  Even the interpretation of the GMO might be of a matter of general public importance, it does not detract from the fact that the proposed amended grounds of appeal under this head are unarguable.  I am not satisfied that on merits there are reasonable prospect of success on any of the grounds advanced. 

The Amended Grounds of Appeal on Forum Non Conveniens

35.The amended grounds of appeal are as follows:

3. The learned Judge erred in ruling that the Siming Court and/or the court in Guangzhou is not clearly or distinctly more appropriate as a forum than the Hong Kong Court (see Ruling paras. 62 – 94) by placing excessive reliance on factors which ought not to have taken into account e.g. possible outcome of the Respondent’s appeal in the PRC proceedings (see Ruling para. 85) and failed to take sufficient account of the issues to be determined from the point of view of the trial of the action:-

(1) G’s interest is a matter of high importance;

(2) The jurisdiction where the child habitually reside should try the matter; and

(3) G’s well-being can be conveniently dealt with in terms of the PRC Court’s local knowledge and experience on the way she is to be raised and educated.

4. The learned judge, when applying the legal principles, erred in confining himself to compare only the Simming Court of PRC with the Hong Kong Court.  The learned Judge ought to have considered the Court in Guangzhou City of PRC in the comparative exercise when he considered that there was some evidence showing that the same was clearly or distinctly the more appropriate forum (see Ruling para 92)

5. The learned Judge further erred in ruling that he has no discretion to exercise in relation to the Respondent’s application for stay on the ground of forum non convenience. (see Ruling para 95)

6. The learned Judge erred in ruling that the Applicant would be deprived of her legitimate personal or judicial advantages by placing excessive or inappropriate reliance on factors which ought not to have taken into account, or on factors which was not relied on/named by the Applicant, or not being dealt with/elaborated in the experts’ evidence or supported by evidence. (see Ruling paras. 96 – 110)

7. In any event, in his Ruling the learned judge failed to consider or consider adequately that the quality of justice in the alternative jurisdiction and whether substantial justice will be done to all the parties in the available appropriate forum.

The Respondent’s Arguments

36.As said, since Mr Lin chooses to advance his arguments covering all the grounds in one go, it is virtually impracticable, if not impossible, for me to deal with the grounds on an itemized basis.    

37.Mr Lin again relies on the opinion of Hon Cheung JA: LN v SCCM, CACV No. 62 of 2013 (4 June 2013) that in general, the jurisdiction where the children habitually reside should try the matter. 

38.Mr Lin submits that since it is plain and obvious that apparently the parties are much more connected to the Mainland than to Hong Kong, it would appear that the court thought that a court in Guangzhou would have been the appropriate forum but since the respondent has on his summons expressly specified the Siming Court as the appropriate forum, the court needs not deal with the application with reference to a court in Guangzhou.

39.Mr Lin contends that I erred in this respect.  As has been stated by Recorder Geoffrey Ma, S.C., as he then was, in Rambas Marketing Co. LLC v. Chow Kam Fai David [2001] 3 HKC 250, at 253B, it would be advisable in future for the court or tribunal in favour of which the applicant seeks a stay of the Hong Kong proceedings, to be identified in the summons or motion.  It is therefore a matter of good practice only rather than a matter of law for the alternative forum to be identified in the summons.  Notwithstanding that the Siming Court was the forum identified in the summons, it is submitted by Mr Lin that it was wrong for the court not to deal with the Summons with reference to a court in Guangzhou if the court took the view that the evidence pointed to a court in Guangzhou as the appropriate forum.  He relies on Premier Fashion Wears Ltd v Li Hing Chung [1994] 1 HKC 213 and argues that reference to the Siming Court could not exclude the respondent from recourse to the court’s jurisdiction in staying the Hong Kong proceeding.  The court would not be handicapped if an amendment were made in the hearing of the Summons since no further affidavits were needed.

40.Further, it is common knowledge that the PRC does not have a federal system but a unified judicial system.  The evidence in the affirmations (including those of the experts) filed for this application was not “court-specific”.  There was no prejudice to the applicant for the court to consider a court in Guangzhou as the more appropriate forum.  He submits that the Court should grant a stay if it thinks that the court in Guangzhou is the more appropriate forum.  In any event, if necessary, the absence of a reference to a court in Guangzhou could easily be remedied by an amendment of the Summons.  It would certainly have served no useful purpose and be a waste of time and costs for a new summons with reference to a court in Guangzhou to be issued so as to allow the court to consider the matter afresh.

Discussion

41.Mr Lin takes great pains to stress that I am entitled to consider whether a court in the Guangzhou city is clearly or distinctly a more appropriate forum since all the necessary evidence are before me. 

42.To start with, I need to mention that since the Ruling the appellate court of the Siming Court has dismissed the respondent’s appeal and has also set aside the custody order granted in favour of the applicant.  The respondent has not lodged further appeal and hence, clearly the proceedings in the Siming Court under the respondent’s application have gone.  These are not in dispute.  

43.When being asked now with the Siming Court proceedings gone, whether or not there is still an available forum.  Mr Lin submits that it does not matter.  There is no need to have an extant proceedings in the Mainland whether in the Siming Court or otherwise. Indeed, Mr Lin goes so far as to say that the Siming Court is a red-herring. The respondent could have stood with folded-arms without starting any proceedings in the Siming Court and just applied, as what he did, to have the present proceedings stayed on the ground of forum non conveniens.  What is material is there is another available forum which is clearly or distinctly more appropriate than the courts of Hong Kong.  What the applicant should have done was to commence proceedings in a court in the Guangzhou City but not here. 

44.I accept that there is no need to have an extant proceedings to invoke the forum non conveniens application. 

45.I now turn to Mr Lin’s arguments.  

46.Mr Lin’s arguments in essence are that I should also have considered a court in the Guangzhou City in the comparative exercise notwithstanding the respondent’s summons expressly specified the Siming Court as the basis of his application. 

47.With respect, I do not think there is any substance in the arguments.  The fact that the Siming Court was the only court specified in the Summons must have been a deliberate and informed decision on the part of respondent because the Siming Court was inserted by way of an amendment of the Summons on 8^th April 2013 to replace the original wording “the Court in the People’s Republic of China”. This formed the basis of the respondent’s application and therefore it was and is simply not opened for the respondent to invite the court to consider a court in the Guangzhou City in the comparative exercise at all.  I do not think it is fair to the applicant if the respondent is allowed to have the second bite of a cherry. 

48.If the application for amendment were allowed, it would mean that the Court of Appeal would be required to exercise its discretion to determine the stay application afresh. Though the Court of Appeal has the power to do so, it would mean that the Court of Appeal would not have the assistance of the lower court decision on the comparative exercise. 

49.It is certainly incorrect for Mr Lin to say it would appear that the court thought that a court in Guangzhou would have been the appropriate forum.  I simply did not say so.  What I said in para 92 of the Ruling is clear and unambiguous; and I repeat it below,

“Whilst it is plain and obvious that apparently the parties 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 parties 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.”

50.The fact is I had not considered whether a court in Guangzhou was appropriate as I was not required to do so. 

51.Further, I am not able to agree with Mr Lin’s contentions that the application is not court-specific. Relevant issues such as the travelling time, the locus of the properties and the whereabouts of the parties and the witnesses are all court-specific.  As I have elaborated in para 93 of the Ruling, I did compare the Siming Court with the Hong Kong courts. 

52.Thus, I do not see any merit on this point. 

53.The respondent seeks to play down what Recorder Ma, SC (as he then was) said in Rambas Marketing Co LLC v Chow Kam Fai David [2001]3 HKC 250 at 253B by stressing that it is only “advisable” to identify the alternative forum in the summons.

54.Such submission completely ignores what Deputy High Court Judge Reyes SC (as he then was) subsequently held in Hwoo Huang Linda v Fu Being San & Ors [2013] 1 HKLRD 259 at para 55.  After referring to Recorder Ma’s dictum in Rambas in para 52, the Court went on to hold in paras 55-56:-

“55. Thus, Fu and Hung fall at the initial hurdle of the Stage (1) process.  The failure to identify (and adduce cogent evidence on the availability of) any particular forum, whether in the US or elsewhere, means that the Court lacks a foundation on which to exercise a discretion whether or not to stay the proceedings to a specific forum.  “Forum non conveniens” is at heart a comparative exercise.  An application claims that some other forum is relatively more appropriate than the Hong Kong Court to hear the trial of an action.  If the Court does not know which particular other court is said to be more appropriate, it cannot begin to conduct the requisite comparative exercise.

56. On this ground alone, I would refuse a stay.” [emphasis added]

55.Mr Lin’s making reference to Premier Fashion Wears Ltd v Li Hing Chung [1994] 1 HKC 213 is totally unhelpful.  In that case, the defendant applied for indemnity judgment under O 16 r 5 RHC when the power to enter indemnity judgment was actually conferred by O 16 r 7 RHC.  Against such background, the Court of Appeal held at 220E:-

“As to point (1), O 16 r 5 (under which the defendant applied for judgment) did not apply. But O 16 r 7 did apply. There is nothing in the point made by the third party as to the irregularity of the judgment. The true principle is that, in asking for an order from the court, a party is not bound to state under which rule or order he proposes to move. It frequently happens that parties move under a particular rule and then, when they find it is a wrong one, turn to another and an order is made…”

56.In my view, this is a completely different point which can have no bearing on the respondent’s proposed appeal.

57.Likewise, the suggestion that it is common knowledge that the PRC does not have a federal system but a unified judicial system does not assist him.  That was not a point raised during the hearing.  Nor was there any expert evidence before the Court in this regard.  In any event, I do not think this assists the respondent.  Having a unified judicial system would mean both the Siming Court and a court in the Guangzhou City apply the same set of laws or legal principles and hence both are available forum only, it does not necessarily make the latter a more appropriate one.

58.It is important to refer to what the Court of Appeal said in Greenwood Ltd v Pearl River Container Transportation Ltd & Anor, CACV No 27 of 1994, 25 May 1994, unreported, at page 6:-

“It is in the circumstances of this case plainly not enough for the 1^st Defendant to assert that “China” or “the PRC” or “the city of Guangzhou” is an appropriate forum. The plaintiff’s solicitors specifically asked the solicitors for the 1^st Defendant in a letter dated 7^th December 1993 which court in the PRC would adjudicate on the plaintiff’s case if the action were stayed in Hong Kong. This question was never answered. [emphasis supplied]”

Erred in the Exercise of Discretion

59.Finally, Mr Lin argues that since neither the applicant nor G has or could have resided in Hong Kong, and they have been habitually or ordinarily residing in the Mainland, in ruling in favour of the applicant, the court failed to take into account sufficiently or at all:

(i) G’s interest is a matter of high importance;

(ii) The jurisdiction where the children habitually reside should try the matter; and

(iii) G’s well-being can be conveniently dealt with in terms of the PRC Court’s local knowledge and experience on the way she is to be raised and educated.

60.It submitted on behalf of the respondent that had these matters been considered sufficiently, the only conclusion would be that the proceedings in this action should be stayed on the ground of forum non conveniens in favour of the PRC court as the more appropriate forum.

Discussion

61.Again, I do not see any reasonable prospect on this ground.  I have said clearly in the Ruling that even if I were satisfied that the Siming Court is a clearly or distinctly more appropriate forum, I would have exercised its discretion in favour of the applicant because there are some entirely legitimate juridical disadvantages to be suffered by her (see paras. 96-111 of the Ruling).

62.In this regard, it must be borne in mind that this is an appeal from this court’s exercise of discretion with which the Court of Appeal would not interfere unless the judge had erred in law, or had misapprehended a material fact, or had taken an irrelevant matter into account, or had failed to take a relevant matter into account, or had been plainly wrong, and it matters not that the appellant judges may have taken a different view had they been sitting at first instance.

63.The jurisdiction where the children habitually reside is certainly a material consideration but it is not an unbending legal principle.  This is only a matter of good common sense rather than a recognised custom or convention: see para 29 of the Judgment in LN v SCCM, CACV No. 62 of 2013.  Family cases can be highly fact-sensitive. As a matter of fact, notwithstanding that the children in the said LN v SCCM were residing with the mother in Hong Kong, the Court of Appeal exercised their discretion to stay the mother’s Hong Kong application for relocation in favour of the court in Singapore for the reason that the parents had previously submitted to the jurisdiction of the courts in Singapore. 

64.It is to be noted that whether in his oral arguments or written submissions, Mr Lin has not referred me to a single matter, issue or fact that I had erred or are misapprehended or which are irrelevant but I had taken into account such that I had erred in the exercise of the discretion. 

65.For above reasons, I fail to see the respondent has any reasonable prospect of success in his intended appeal. 

Orders

66.Since the application for leave to appeal fails, the application for the re-re-amendment of the Summons must fail as well.  The 2 summonses are therefore dismissed. 

Costs

67.I see no reason why costs should not follow the event.  I give an order nisi that the respondent do pay the costs of the 2 applications, to be taxed if not agreed. 

Mr Eugene Yim, instructed by Christine N. Koo and Ip, solicitors for the Applicant

Mr Kenny Lin & Mr L. Cheung, instructed by Lo, Wong and Tsui, solicitors for the Respondent