Cmc v. Wpm

FCMP 59 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 59 OF 2012

----------------------------

----------------------------

----------------------------

-------------------------

REASONS FOR DECISION
(Leave to appeal)

-------------------------

Introduction

1.This is the application taken out by the Applicant for leave to appeal the Decision of this Court dated 25 June 2012 (“the Decision”) refusing leave to the Applicant to apply for financial reliefs under Section 29A of the Matrimonial Proceedings and Property Ordinance, Cap.192, which provision falls under Part IIA of the Ordinance.

2.For the sake of convenience, I will refer to the Applicant’s  application for leave to commence financial reliefs as “Part IIA application”.

3.At the commencement of these proceedings, the Applicant was represented by Messrs. Ip & Heathfield and engaged Counsel Mr Neal Clough to appear for her in the hearing proper before this Court.  Following the Court’s Decision on the Part IIA application, an Ex Parte Summons was issued on 23 July 2012 for leave to appeal against the Decision and attached thereto a draft Grounds of Appeal settled by Counsel Mr Clough (dated 20 July 2012).  The hearing for leave to appeal was fixed for 22 October 2012 when Counsel Mr Hingorani was instructed to appear.  Mr. Hingorani informed the Court that he was instructed to attend the hearing on short notice. 

4.Mr Hingorani submitted a 4-page written skeleton submission for advancing his argument for leave to appeal on those Grounds of Appeal settled by Mr Clough.  Upon clarification with Mr Hingorani, the hearing was adjourned sine die with liberty to restore for Mr Hingorani to decide whether those Grounds of Appeal settled by Mr Clough would need to be amended and/or supplemented.  In the meantime, the Applicant also undertook to notify the Respondent with full particulars of the intended appeal and the Decision of the Court.

5.On 29 November 2012, the Applicant filed a Notice of Intention to Act in Person.

6.On 7 December 2012, the Applicant instructed Messrs. Withers to represent her.

7.On 10 January 2013, Messrs. Withers sought by letter to restore the hearing of the Ex Parte Summons for leave to appeal.  The hearing was then fixed for 3 May 2013 at 9:30 a.m., which was some 10 months after the intended appeal was brought before the Court.  The hearing was then adjourned to 23 July 2013 due to a change of venue and hearing date.

8.On 23 July 2013, the Respondent appeared in person.  After explaining the proceedings to the Respondent, the hearing was further adjourned for him to consider whether he would seek legal advice.  Parties are at liberty to restore the hearing after 3 September 2013.

9.On 6 September 2013, Messrs. Withers issued an Inter Partes  Summons (“1^st Amendment Summons”) on the following terms :-

“1. The Applicant be given leave to amend the grounds of appeal by replacing the Draft Notice of Appeal prepared by Counsel Neal Clough dated 20^th July 2012 attached to the Ex Parte Summons filed on 23^rd June (sic) 2012 with the Amended Ground of Appeal prepared by Counsel Jeevan Hingorani dated 11^th December 2012 annexed hereto……”

10.The 1^st Amendment Summons was heard on 30 September 2013.  The Respondent was also present at this hearing.  It was noted by this Court that there are various matters which Messrs. Withers need to rectify both on the contents of their Summons and the supporting Affirmation of the solicitor Tsao Chiao Lin Jocelyn.  Accordingly, Counsel Mr Hingorani sought leave to withdraw the 1^st Amendment Summons.  Leave was granted.

11.On 24 October 2013, Messrs. Withers issued another Inter Partes Summons (“2^nd Amendment Summons”) on the following terms :-

“1. The Applicant be given leave to supplement the grounds of appeal prepared by Counsel Neal Clough dated 20 July 2012 attached to the Ex Parte Summons filed on 23^rd July 2012 in the manner as per the Supplemental Grounds of Appeal annexed herewith as amended in red, prepared by Counsel Jeevan Hingorani dated 22 October 2013…….”

12.The 2^nd Amendment Summons was heard on 11 November 2013 in the Respondent’s absence.  An Order was granted in terms of the 2^nd Amendment Summons.

The relevant provisions on appeal

13.The jurisdiction to grant leave to appeal rests with section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.

14.The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he or she has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Hartmann JA at paragraphs 8 and 9 of that Judgment).

The Grounds of Appeal (as later supplemented)

15.The draft Grounds of Appeal settled by Mr Clough was supplemented from 2 grounds to 6 grounds.  For the sake of completeness, I recite them below with those grounds supplemented by Counsel Mr Hingorani underlined and shown in italics :- 

“1 – The learned Deputy District Judge erred in finding that the Applicant did not have a substantial connection with Hong Kong in that he failed to pay any or sufficient regard to the following facts :

(1) The Applicant and the Respondent were married in Hong Kong in 1997 having lived in Hong Kong since 1996 where the Respondent had opened and operated a dental laboratory.

(2) The Applicant has permanent Hong Kong residential status holding a permanent Hong Kong Identity Card issued by the Immigration Department.

(3) The Applicant had lived and worked in Hong Kong.

(4) The Applicant had travelled frequently between Macau and Hong Kong.

(5)   The Applicant intended to move back permanently to Hong Kong for her daughter’s education.

(6)   The fact that the Macau courts determined that in relation to the Applicant’s interest in landed property in Macau they would apply Hong Kong law identified as ‘separate property system’ thereby establishing that the Hong Kong marriage was a determining factor demonstrated that in Macau Hong Kong marriage was a determining factor.

2.  The Learned Deputy District Judge found that factors (1) – (3) only showed a connection with Hong Kong but that there needed to be something additional to elevate this connection to make it substantial.

 3.  The Factors

(1)   As for factor (1), marriage in Hong Kong ought to be characterized as ‘more than little’, and, therefore, falls within the requisite parameter.

(2)   As for factor (2), it is respectfully submitted that permanent residential status in Hong Kong is a connection that meets the threshold of being ‘more than little’.

(3)   Permanent residential status is the means by which the Hong Kong Government confers upon people, whether born here or not,

(i)   The right to live and work here without any visas.

(ii)  The right to take advantage of any special laws and regulations made specifically applicable to permanent residents or to avoid those made applicable to non permanent residents, for example, the imposition of taxes in respect of home purchases.

(4)   Further, although it is not suggested that the Applicant had a Hong Kong domicile of choice at the time of the application, a permanent residential status can be a factor which may be relied upon to demonstrate a domicile of choice.

(5)   A domicile of choice replaces a domicile of origin by an individual actually moving to another country with an intention to remain there permanently.

(6)   There appears to have been no evidence before the Court as to the Applicant’s domicile of origin.  If it was Hong Kong, then she received a Hong Kong domicile of origin at birth. If she was born in mainland China, then she received a  China domicile of origin.  When she came to Hong Kong, if she then intended to remain here permanently, which finding must be open to the Court, then her domicile of origin would have been replaced by a Hong Kong domicile of choice.

(7)   Even if the Applicant acquired a Macau domicile of choice after moving there with her husband, it is important to note that the husband worked in ‘his own’ dental laboratories where the Applicant assisted him.  On the evidence a reasonable inference could be drawn that the Applicant  was wholly dependent on her husband.

(8)   The fact that the Applicant regularly visited Hong Kong supports a potential intention in the future to return and to maintain her permanent residential status, as it is possible to lose such status if one does not return to Hong Kong for a prescribed period.

(9)   Thus, the Applicant is in a stronger position to re-adopt a Hong Kong domicile by virtue of maintaining her permanent residence status.

(10)   Had the Applicant returned to live in Hong Kong with the intention to remain here permanently before she initiated proceedings here, she could immediately have relied on the provisions of section 29AE (a)(i) as to domicile.

4.  By virtue of the aforesaid, the Applicant’s permanent residential status constituted a substantial connection with Hong Kong.

   5.   As for the factors under section 29AF of the MPPO, the Learned Deputy District Judge ought to have found that :-

(1)   It was sufficient to establish provisionally that Hong Kong was the appropriate venue.

(2)   Part III was aimed at remitting the presence of a failure in a foreign jurisdiction to afford appropriate relief which,had the proceedings been initiated in Hong Kong, the Applicant would surely have been entitled to.

(3)   Factor (a) had been satisfied.

(4)   Factor (b) did not detract from factor (a).

(5)   Factor (c) was not relevant.

(6)   Factor (d) tended to support the Applicant (a finding made by the Court).

(7)   Factor (e) was only relevant as to quantum considerations.

(8)   As for factor (f) the Macau courts granted no relief as a matter of Macau law and the Applicant had no right that she could exercise to apply for financial relief.

(9)   As for factor (g), the fact that there are no properties in Hong Kong does not mean that Hong Kong cannot be the appropriate venue.

(10)   As to factor (h), the decision of the Hong Kong courts would be enforceable in Macau.

(11)   As to factor (i), there was no delay in bringing proceedings.

6.   The learned Deputy District court Judge further erred in finding that the Applicant that Hong Kong was not the appropriate venue in that he failed to pay any or sufficient regard to the fact that the Macau Courts considered that the lex loci for consideration of property rights is Hong Kong by virtue of finding that the Hong Kong property system applied to matrimonial property whereby Hong Kong is the place where the rights between the parties was acquired or their liability to each other was incurred.”

Discussion

16.On Grounds 1 (1) to (3), the facts of the Applicant’s marriage in Hong Kong, possessed of Hong Kong permanent residence status and having lived and worked in Hong Kong, had all been considered by this Court at paragraph 20 of the Reasons for Decision dated 25 June 2012.  As found, these are only supportive of a connection fall short of the statutory requirement of ‘substantial connection’ (also see paragraph 21 of the Reasons for Decision).

17.On Ground 1 (4), the fact of the Applicant having travelled frequently between Macau and Hong Kong had also been considered to be fall short of establishing ‘substantial connection’ (see paragraph 25 of the Reasons for Decision).

18.On Ground 1 (5), the Applicant’s intention of moving back permanently to Hong Kong was considered at paragraph 26 of the Reasons for Decision.  As found, this is a future event which may or may not materialize.  The Applicant’s supporting affirmation for the present Part IIA application was even not affirmed in Hong Kong. 

19.On Ground 1 (6), the submission that the Macau courts had identified a ‘separate property system’ and thereby established that Hong Kong marriage is a determining factor, in my view, is neither here nor there.  The only and key question is whether the Applicant can prove her ‘substantial connection’ with Hong Kong either at the time of her Part IIA application or at the effective date of her Macau divorce so that the Hong Kong courts have jurisdiction to hear the matter.  This is the statutory provision under Section 29AE (c) of the Ordinance.  This does not concern with how the Macau courts see the case.  Even if Hong Kong marriage was seen to be a determining factor by Macau courts, it does not necessarily follow that the Applicant would then have substantial connection with Hong Kong.  One does not simply follow the other is my view.

20.All in all, I do not see there is any reasonable prospect of success on appeal on any one of Grounds 1 (1) to (6).

21.Ground (2) is a general statement of this Court’s findings with no substance on the merits of the intended appeal.

22.Ground (3) was drafted under the heading “The Factors”.  Upon reading it, Counsel was making submissions at Ground (3) (1) and (2) that those factors set out in Grounds 1 (1) and (2) should or ought to be considered as the Applicant having met the threshold test for ‘substantial connection’.  These submissions had already been considered by this Court not being sufficient to establish ‘substantial connection’ (see paragraph 23 of the Reasons for Decision).

23.As to Ground 3 (3), I do not see how possession of permanent resident status could in anyway be tied up with ‘substantial connection’.  Such status conferring right to live and work, to take advantage of certain laws and regulations specifically applicable to those permanent residents could not then be taken there and then that the permanent residents have had ‘substantial connection’ with Hong Kong.  Take a day to day example of which judicial notice would be taken, hundreds and thousands of immigrants now living overseas, say in Canada or Australia, also possess permanent residents status in Hong Kong, would they also fall within the ambit of having ‘substantial connection’ with Hong Kong ?  These people would no doubt have the right to live and work in Hong Kong if they so wish.

24.Grounds 3 (4), (5), (6) and (7) touches upon the topic of ‘domicile’, be it ‘domicile of choice’ or ‘domicile of origin’ or the inter-relation of the two.  However, such topic of ‘domicile’ had been confirmed by this Court with Mr Clough at the outset of the trial proper (see paragraph 10 of the Reasons for Decision) which would not be relied upon by the Applicant to satisfy the jurisdictional requirement.  Mr Hingorani in his submissions attempted to show the Applicant’s substantiality in connection with Hong Kong by cross referencing to ‘domicile’ as one of those factors which the Court should be entitled to take on board. With respect to Mr Hingorani, I do not agree. 

25.‘Domicile” is one of the three limbs on jurisdictional requirement (Section 29AE (a)), apart from ‘habitual residence’ (Section 29AE (b)) and ‘substantial connection’ (Section 29AE (c)) of the MPPO, Cap.192.  I accept that in some cases the applicant may find himself or herself fall within more than 1 of these limbs.  In the present case and with the explicit confirmation of Mr Clough that the Applicant is relying upon the ‘substantial connection’ limb and not any one of the other two limbs, it is unfair and indeed would be wrong in principle and procedure that the Applicant, having found herself failed in the ‘substantial connection’ limb, at this stage of seeking leave to appeal, could revisit the jurisdictional point by cross reference to other limbs which had not been canvassed by her then Counsel Mr Clough at the trial proper.  These are not curable by way of amendment to the Grounds of Appeal.  There should not be any ‘second bite of the cherry’ in litigation.  Further, it does not matter that the trial proper was an ex parte or inter partes hearing in the absence of the Respondent since justice must always be seen to be done.  

26.As to Ground 3 (8) referring to the Applicant’s potential intention in the future to return and to maintain permanent residency status, this is far beyond any consideration which the Court has to take when deciding jurisdictional issue under Section 29AE (c), namely, the ‘substantial connection’ limb.  Moreover, there is the requirement of time under subparagraphs (i) and (ii) of Section 29AE (c) which does not include any potential intention in the future (my emphasis).

27.As to Ground 3 (9), whether the Applicant will be in a stronger position to re-adopt a Hong Kong domicile is, in my decision, irrelevant for the purpose of the present application for leave to appeal. The Applicant had lost in her Part IIA application at the stage of obtaining leave because of her reliance on the ‘substantial connection’ limb.  There had never been any question or finding of this Court which touches upon the Applicant’s domicile or her not satisfying the domicile limb.  Provided all the requisites are present, it is of course always open for the Applicant to adopt a Hong Kong domicile if she so wishes.  The fact remain here is that there had never been any reliance on domicile at the stage of her application for leave, not to say any submissions had ever been made by Mr Clough on her behalf.

28.As to Ground 3 (10), this is what the Applicant should have been legally advised and be aware of before Mr Clough made his confirmation on her instructions for reliance of the ‘substantial connection’ limb solely.   Had the Applicant returned to live in Hong Kong with the requisite intention for domicile, she might have found herself satisfying the other limb of ‘domicile’.  Provided the requisite period of time is met, she could also satisfy the other limb of ‘habitual resident for 3 years’.  The fact that the Applicant could have relied on other limbs of Section 29AE, for example, paragraph (a)(i) as to ‘domicile’ (which had never been relied upon or submissions made at the trial proper) could not be a ground for seeking leave to appeal.  As said. this could only be a basis for filing a fresh application to satisfy the jurisdictional requirement for seeking reliefs under Part IIA but no more than that. 

29.All in all, I do not see there is any reasonable prospect of success on appeal on any one of Grounds 3 (1) to (10).

31.Ground 4 is a general statement of submission with no substance on the merits of the intended appeal.

32.As to Ground 5 (1), it is indeed this Court’s views (quoting paragraph 33 of the Judgment in the case of C v. H) that it was sufficient to establish provisionally that Hong Kong was the appropriate venue.  This can be found in paragraph 34 (from N to Q) of this Court’s Reasons for Decision which is repeated as follows :-

“34. ……… In my view, whether Hong Kong is the appropriate venue must be provisionally established by considering all the circumstances and with particular attention to those factors under section 29AF (2) in order to pass the threshold for obtaining leave……”

33.As to Ground 5 (2), I believe Counsel is referring to Part IIA as opposed to Part III stated in his Amended Grounds of Appeal.  In any event, this is a submission stating the obvious.  I am not convinced that a person who, upon legal advice, chose to claim his/her reliefs in one jurisdiction but failed and, having mounted an appeal in that jurisdiction but again lost, could have stated that regrettably though that he or she might have been entitled to those reliefs had proceedings been commenced elsewhere.  There should not be any ‘forum shopping’ in whatever sense.  

34.Grounds 5 (3) to (11) refers to those statutory factors under Section 29AF (a) to (i) of the Ordinance which this Court had already considered (see paragraphs 35 to 43 of the Reasons for Decision).  This Court, after considering all the factual circumstances and those statutory factors, concluded the Applicant was not able to establish Hong Kong is provisionally the appropriate venue (see paragraphs 44 and 45 of the Reasons for Decision).  Suffice to say is that none of these Grounds 5 (3) to (11), including Grounds 5 (1) and (2), individually or collectively considered, satisfies this Court that there exists any reasonable prospect of success on appeal. 

35.As to Ground 6, the Macanese courts decided that the lex loci applied for considering property rights is Hong Kong based upon Hong Kong property system applied to matrimonial property could not, in my decision, be a ground for appeal.  Reason being that this is a question of law within the Macanese courts’ jurisdiction to make and, without any disrespect to the Macanese courts, even if it had been wrongly decided it would be the subject of appeal within the Macanese legal system. There is no place for this Court here in Hong Kong to say the Macanese courts rightly or wrongly decided that the lex loci applied for considering property rights is Hong Kong.  Nor this Court here will follow what the Macanese courts had so decided and then be satisfied that the Applicant had passed the threshold on the ‘substantial connection’ requirement on jurisdiction. 

36.Accordingly, I do not see there is any reasonable prospect of success on appeal on Ground 6.

Conclusion

37.In conclusion, I am not satisfied that the Applicant has demonstrated any one of the 6 Grounds of Appeal (as supplemented and amended by Counsel Mr Hingorani) has any reasonable prospect of success.  

38.I also find that there being no reason in the interests of justice that leave to appeal should be granted.  I am, however, prepared to say leave to appeal might be granted on this ground had the Applicant’s case been lost on all the 3 limbs of jurisdictional requirement under Sections 29 AE (a), (b) and (c) of the Ordinance.  This is, unfortunately, not the case.

39.For the above reasons, I would dismiss the Applicant’s Summons dated 23 July 2012 seeking leave to appeal.  I also make no order as to costs in view of the application is one of ex parte.

Mr Jeevan Hingorani instructed by Messrs. Withers, Solicitors for the Applicant

Respondent appearing in person