Zc v. Cn
Read the full judgment text of CACV 255/2013 on BabelCite. This Court of Appeal judgment was delivered on 11 August 2014 before Hon Cheung CJHC, Cheung and Chu JJA.
Divorce jurisdiction – substantial connection – forum non conveniens – Matrimonial Causes Ordinance (Cap 179) s.3 – Whether petitioner wife substantially connected with Hong Kong – Parties married in Hong Kong but lived in Shenzhen – Husband Hong Kong permanent resident but based in Mainland – Wife has HK ID but not permanent resident – Properties in Hong Kong but not used as matrimonial home – Judge found substantial connection – Court of Appeal held no substantial connection – Appeal allowed – Petition dismissed – Costs to husband.
Legal issues: Substantial connection for divorce jurisdiction · Forum non conveniens
Outcome: Appeal allowed; orders below set aside; petition dismissed.
Cited by 32 cases · Cites 10 cases
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CACV 255/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 255 OF 2013 (ON APPEAL FROM FCMC NO. 6643 OF 2012) ________________________ BETWEEN
________________________ Before: Hon Cheung CJHC, Cheung and Chu JJA in Court Date of Hearing: 16 July 2014 Date of Judgment: 11 August 2014 ________________________ J U D G M E N T ________________________ Hon Cheung CJHC : 1.I agree with the judgment of Cheung JA. Hon Cheung JA : The appeal 2.The issue raised in this appeal is whether the petitioner wife is substantially connected with Hong Kong for the purpose of invoking the divorce jurisdiction of the Family Court. A subsidiary question is whether, in any event, the wife’s divorce petition should be stayed on the ground of forum non conveniens. H H Judge Melloy refused the respondent husband’s jurisdictional challenge to the wife’s petition. The husband now appeals. The background 3.1The parties were married in Hong Kong on 31 December 2005. The husband is 52 years of age and the wife is about ten years younger. The husband was born in the Mainland but came to Hong Kong as a teenager and acquired permanent residence status here. He moved back to the Mainland and based himself in Shenzhen since 1982 and has been engaged in the entertainment business in the Mainland. He met the wife in 1995 and cohabitated with her soon afterwards although he was only recently married to another woman (‘the first wife’) at that time. The wife was a singer when she met the husband. She quitted her job and became a housewife and assisted him with his business whenever she could. 3.2On 3 July 2004 the husband petitioned to divorce his first wife in Hong Kong. According to the husband’s divorce petition he relied on the fact that both he and his first wife were domiciled in Hong Kong. The petition stated that the husband was a restaurant manager living in Hong Kong and that his first wife was a housewife with two residential addresses - one in Hong Kong and one in Shenzhen. 3.3The parties married after the husband obtained the decree absolute against the first wife. 3.4The husband said they had lived at two properties in Shenzhen. The first was a place known as Jinhu Villas. In early 2012, they moved to another flat in a place known as the Park Lane Manor. 3.5Although the husband said that in 2006, the wife applied for permanent residence in Hong Kong and obtained permanent residence in 2010, in fact the wife was only granted an exit permit (commonly known as the one way permit) to come to Hong Kong by the Mainland authorities in May 2010. Previously she travelled to Hong Kong on a two way permit renewable every 12 months. She obtained a Hong Kong identity card in June 2010 but she is still not a permanent resident. 3.6The couple also maintained properties in Hong Kong. They first bought a flat in Wonderland Villas in Kwai Chung in December 2007. It was sold in 2011. In May 2008 another flat in a complex known as the Palazzo in Shatin was bought. According to the wife the two flats had been the homes of the parties in Hong Kong. The husband said the Wonderland Villas flat was never used as their matrimonial home since they were living in Shenzhen. The flat was bought for his mother but as she did not like it, it was then rented out. The Palazzo flat was also used by his mother when she came back to Hong Kong from Australia where she spent part of the year. The couple only stayed in the Palazzo flat no more than ten days a year. 3.7The wife is now currently residing in a serviced apartment in Hong Kong. She claimed that the husband had arranged to shut her out from the Palazzo flat. 3.8The wife said that they married in Hong Kong because it was their intention to give birth to children and set up their family in Hong Kong. Between November 2007 and August 2012, the wife received fertility treatments in Hong Kong but they were unsuccessful. 3.9Since 2010, the husband was diagnosed to have serious lumber spinal illness which is potentially life threatening and may lead to paralysis. He has been seeking treatment from doctors in Hong Kong and the Mainland. 3.10The relationship of the parties went sour and on 15 May 2012 the wife petitioned for divorce in Hong Kong based on the husband’s unreasonable conduct. For the purpose of this appeal I will refrain from dealing with the wife’s allegations of the husband’s conduct in the petition and in her submission in Court since they are not relevant to the issue we have to address. 3.11In the petition the wife said that the parties are domiciled in and also have a substantial connection with Hong Kong. The wife relied on the following in support of her jurisdictional connection :
3.12The wife relied on the following in support of the husband’s jurisdictional connection :
4.The husband then issued his jurisdictional challenge to the wife’s petition. The Judge’s decision 5.1The Judge found that the parties are not domiciled in Hong Kong but they have substantial connection here. The Judge’s decision on domicile is not appealed against by the wife. 5.2The Judge summarised the wife’s travel to Hong Kong from 2006 to August 2012 as follows :
5.3The husband’s travel to Hong Kong from August 2002 to July 2012 is summarised as follows :
Divorce jurisdiction of the Hong Kong Court 6.Section 3 of the Matrimonial Causes Ordinance, (Cap 179) provides that the divorce jurisdiction is based on the following grounds:
I) Domicile 7.1Rule 4 of Dicey, Morris & Collins: The Conflict of Laws, (15th ed.) Chapter 6, para 6R-001 states :
7.2To elaborate on this rule the authors state that :
7.3The words ‘by English law’ in Rule 4 mean in the context of this case ‘by Hong Kong law’. This rule together with the concept of acquiring a domicile by choice are reflected in our Domicile Ordinance (Cap 596) which is an ordinance to consolidate and reform the law for determining the domicile of individuals. Section 3 provides that :
7.4Section 5 further provides that :
7.5An adult may be lawfully present in Hong Kong in order to acquire a domicile in Hong Kong (section 6). 7.6In W v C [2013] 2 HKLRD 602 this Court adopted the list of factors identified by Chu DJ in Y v W [2012] 2 HKC 455 which may be taken into account in determining an individual’s intention whether to make a permanent home in a particular place :
II) Habitual residence 8.1Habitual or ordinary residence refers to ‘a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration. It is necessary that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled’ : R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 309, judgment of Lord Scarman at page 340-344. Lord Scarman applied the natural and ordinary meaning approach in construing the words ‘ordinarily resident’ of the United Kingdom Education Act 1962. 8.2The same meaning of habitual or ordinary residence is to be given to the family law legislation : Ikimi v Ikimi [2002] Fam 72 Thorpe LJ at page 82, reaffirmed in Mark v Mark [2006] 1 AC 98. 8.3Unlike domicile, one may have habitual or ordinary (the terms are the same) residence in two places at the same time : Ikimi. 8.4In the recent case of Vallejos v Commissioner of Registration (2013) 16 HKCFAR 45, the Court of Final Appeal construed ‘ordinarily resident’ in Article 24(2)(4) of the Basic Law. The Court of Final Appeal emphasised the purposive and contextual approach in statutory interpretation (paragraph 50) and qualified the natural and ordinary meaning approach of Lord Scarman by regarding it only as a starting point but not decisive (paragraph 80). Ma CJ held that :
III) Substantial connection 9.1In line with the modern approach of statutory interpretation, one should not simply look at the natural and ordinary meaning of the words ‘substantial connection’ but also the context and purpose of this term. 9.2The requirement of substantial connection was introduced in 1970 as part of the marriage reform which, among other things, restricted marriages in Hong Kong to that of monogamous marriages, see a summary of the change in Jean Michel Savournin v. Lau Yat-fung [1971] HKLR 180. However no discussion was made to the meaning of substantial connection in the legislative debate, see Hong Kong Legislative Council, Official Report of Proceedings,3rd June 1970, pages 676-682. 9.3The term ‘substantial connection’ is also used in the recently introduced Part II of the Matrimonial Proceedings and Property Ordinance (Cap. 192) where a party may seek financial relief in Hong Kong in respect of an overseas divorce, see CMU v WPM (Part IIA Application) [2012] HKFLR 245. 9.4Whether a person has a substantial connection with Hong Kong is clearly a question of fact. No definition for this term will be succinct or comprehensive enough. What one may do is to look at the surrounding factors to see whether that person is substantially connected with Hong Kong at the time of the petition. As a starting point, one begins to see if that person has connection here and then decide whether that connection is a substantial one, see S v S [2006] 3 HKLRD 751 paragraph 15. In terms of connection, there must be physical presence in Hong Kong, this must be the ground rock of invoking the divorce jurisdiction. But because of the requirement of ‘substantial’, the presence cannot be of a transitory nature otherwise this will encourage ‘fly in’ and ‘fly out’ divorces, a theme that the Court has consistently emphasised, see, for example, Griggs (nee Sharp) v Griggs [1971] HKLR 299, Ta Tran Thi Thanh v Ta Van Hung and Another [1981] HKDCLR 37 and more recently S v S, B v A [2008] 1 HKLRD 43. 9.5In the majority of cases, where a married couple is in Hong Kong, the Court will have no difficulties in ascertaining whether they have a substantial connection here. Thus in RI v SSH [2010] 4 HKC 588, this Court held that :
See also LN v SCCM (CACV 62/2013), Judgment dated 4 June 2013 and DGC v SLC (née C)[2005] 3 HKC 293. 9.6While the discussion in RI v SSH was in the context of forum non conveniens, the question of forum is dependent on the place where the parties have the most real and substantial connection with the action. Hence the suggested factors are clearly applicable to the present discussion. 9.7Traditionally, the discussion of this topic mainly centred on the foreign expatriate community who are present in Hong Kong because of business commitments or to avail themselves of the opportunities in this international commercial city, see, for example, S v S, B v A, G v G [2005] 1 HKFLR 182 and Z v Z (Substantial Connection and Forum) [2012] HKFLR 346. Increasingly in recent years this issue is extended to many of the Hong Kong and Mainland China families who have homes or businesses both here and in the Mainland. Examples can be found in this and other cases such as LS v AD (Forum; Discovery in the PRC) [2012] HKFLR 376 and YS v TTWD (Substantial Connection : Forum) [2012] HKFLR 129. The focus of discussion in these cases is not about mainlanders who came here on visitors’ two way permit but those who have resident status in Hong Kong. Needless to say, the same approach of looking at the surrounding circumstances in order to ascertain the presence of substantial connection is to apply to these parties as well. 9.8The fact that a party has resident status which allows him or her to live here legally is only a factor to be taken into account. He or she may not be living here on a long term basis and only comes here occasionally. No doubt one has to look at other factors such as the party’s past pattern of life, the frequency of his visit to Hong Kong, the length and purpose of the stay, whether the party is engaged in business or work here, whether the rest of the family is here and whether a home has been established here and whether the children are at school here. It is also important to bear in mind that since the legislation only requires the party to establish a substantial connection in Hong Kong, he or she at the same time may have a substantial connection elsewhere, see S v S. In my view, if a party is shown to have substantial connection elsewhere by reason of his home or work, this may be used to contrast with the connecting factors he has in Hong Kong to see whether the Hong Kong connection is a substantial one. 9.9It is said in Savournin at page 184 (and also B v A at paragraph 20) that a meaning must be given to substantial connection wider than domicile or three years’ ordinary residence. But this is not intended to be interpreted so loosely as to encourage residence of passage (Indyka v Indyka [1969] 1 AC 33 at 105) or divorce of convenience. At the same time it will be unduly restrictive if one confines the connecting factors solely to that of a family context, namely, accommodation in a matrimonial home and presence of spouses and children. While in the majority of cases, family context is the focus of the inquiry and a material factor, there may well be situations where a party is in Hong Kong without the presence of his family, but nonetheless is able to show that he has a substantial connection here. It really depends on the circumstances of the case. Such cases, however, must be regarded as exceptional. The present case 10.1The Judge held that the parties have substantial connection with Hong Kong :
10.2In respect of the wife, the Judge further held that :
My view 11.1With respect to the Judge, she was plainly wrong on the finding on substantial connection. The overall view that emerges from the parties’ pattern of life is that they conducted their matrimonial life in the Mainland prior to the wife’s petition. Let us look at the position of the husband first. For the past 30 years he has conducted his life away from Hong Kong in the Mainland where he has his business and matrimonial home. He still lives in Shenzhen. The wife in her oral submission said that the husband spent his time in other parts of the Mainland as well, namely, Shanghai and Zhanjiang. But this does not detract from the fact that the husband’s life has been spent away from Hong Kong. The fact that the husband has Hong Kong properties where he can stay while in Hong Kong, local bank accounts and also a company registered in Hong Kong does not necessarily establish a substantial connection here. It is not uncommon for someone in this modern age of globalization to hold foreign properties, bank accounts and companies, particularly in light of the close proximity between Hong Kong and the Mainland and the large volume of commuters crossing the Mainland borders to Hong Kong. While the husband is a Hong Kong permanent resident, his travel record clearly reveals that his entry into and stay in Hong Kong is really in the nature of a residence by passage only. They consist of frequent same day returns and short overnight stays. 11.2The fact that the husband had in his earlier divorce petition in Hong Kong relied on his domicile in Hong Kong is irrelevant to the issue now under consideration. The Court in the previous proceedings had not made any determination on that point. 11.3In respect of the wife, her travel pattern also reveals the same transitory nature of her stay in Hong Kong. Her more frequent entries to Hong Kong between 2008 and 2010 to seek fertility treatment do not turn an otherwise unsubstantial connection into a substantial one. The reality is that by the time of her petition she has not spent any substantial part of her life here. This is a point recognised by the Judge when she was dealing with the parties’ domicile. While I accept that the concept of domicile is different, I find it odd that this impediment has not been recognised in the inquiry on substantial connection. The other factors that the Judge relied upon, namely, the wife is a Hong Kong resident (but not a permanent resident) with an Hong Kong identity card and her ownership of the flat in Palazzo (initially as joint tenant, now as tenants in common) are clearly not enough to tip the scale in her favour. 11.4While the concept of substantial connection is wider than domicile and habitual residence, I agree with Mr Dennis Kwok, counsel for the husband, that the line has never been as low as where the Judge in this case has set it, namely, where the parties have never lived or worked in Hong Kong throughout their entire marriage, but only established their ties with Hong Kong through their real estate investment and bank accounts, and their frequent daily visits to Hong Kong. 12.In my view on the facts as found by the Judge she ought to have held that neither of the parties has a substantial connection with Hong Kong. Forum non conveniens 13.The Judge also found Hong Kong is the proper forum. As the wife has not established her jurisdictional connection, it is academic to deal with the issue of forum non conveniens, but I will briefly address three points. 14.First, the Court of Final Appeal in the recent case of SPH v SA (formerly known as SA) FACV No. 22 of 2013 (Judgment dated 9 June 2014) addressed the issue of forum non conveniens thus :
15.Second, the Judge held that since the husband has indicated that he has no intention to bring divorce proceedings in Shenzhen, it is difficult to see how he can show that it is more appropriate for the Court in Shenzhen to deal with this matter. In my view this is irrelevant. The issue is simply whether the divorce brought by the wife can be more suitably tried in Shenzhen. 16.Third, the Judge referred to the Mainland legal expert’s opinion and held that there is no evidence before the Court that the parties are able to provide proof of habitual residence in Shenzhen for them to invoke the jurisdiction of the Shenzhen Court. But as Mr. Kwok submitted, given that it is the Judge’s own finding that the parties lived in Shenzhen and that it was the place of their matrimonial home (paragraph 24 of the judgment below), there is ample evidence to answer the question posed by the joint Mainland legal expert in the legal opinion, namely, proof of the parties’ habitual residence in Shenzhen. The Judge’s conclusion is self-contradictory. Since both parties have their habitual residence in Shenzhen, this, according to the joint legal expert, is sufficient for the Shenzhen Court to exercise jurisdiction over the divorce proceedings. Conclusion 17.I would accordingly allow the appeal, set aside orders below and dismiss the petition. I would order the wife to pay the husband the costs of the appeal and below, to be taxed if not agreed. Hon Chu JA : 18.I agree with the judgment of Cheung JA. Hon Cheung CJHC : 19.We accordingly dispose of this appeal as indicated in paragraph 17 above.
The petitioner appeared in person Mr Dennis W. H. Kwok, instructed by Augustine C.Y. Tong & Co., for the respondent |
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