Suzanne Ruth Henderson v. The Registrar, District Court

HCAL 82/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 82 OF 2014

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J U D G M E N T
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A. INTRODUCTION

1.The applicant seeks judicial review of 2 decisions of the Registrar of the District Court (“the Registrar”), refusing to register foreign maintenance orders in Hong Kong.  The Registrar’s stance is neutral.  The interested party (“Mr Henderson”), being payer under the maintenance orders, appears in person and has made representation.  Central to the judicial review is whether or not Mr Henderson was “residing in Hong Kong”.

B.  THE LEGISLATIVE FRAMEWORK FOR REGISTERING FOREIGN MAINTENANCE ORDERS

2.The Maintenance Orders (Reciprocal Enforcement Ordinance, Cap 188 (“the Ordinance”) was enacted to facilitate recovery of maintenance by or from persons in Hong Kong from or by other persons in reciprocating countries.

3.The Ordinance incorporated most of the provisions of the relevant part of the UK Maintenance Orders (Reciprocal Enforcement) Act 1972: Hansard for 2 February 1977.  The then Under-Secretary of State for the UK Home Department stated the legislative intent of the 1972 Act in the Lords Debate on 16 February 1972: (Vol. 831, beginning at cc565):

“[The Bill] is designed to strengthen a single aspect of the machinery for enforcing maintenance orders, and thus to relieve some of the hardship which we all know to be inflicted on wives, mothers and children by maintenance defaulters. It provides means whereby dependants in this country of a person who has gone abroad may enforce a maintenance order against that individual, and means whereby such an order can be enforced in favour of dependants living abroad should the person upon whom they are dependent come to or be in this country.

I believe that the principle of the Bill will be generally welcomed as assisting in the enforcement of maintenance orders. We are all aware of the substantial difficulties which arise in maintenance enforcement. The problem is a continuing one, and it does not admit of a simple solution. In the end, it is often a question of trying to extract money from a man who is either determined not to pay or has not the means to do so.

The Bill is limited to the position of the deserted woman whose partner has gone overseas, a problem which is becoming ever more important with the growing ease of travel today.” (emphasis added)

4.Section 7 of the Ordinance sets out the procedure.  The responsible authority of a reciprocating jurisdiction, shall send a certified copy of the maintenance order to the Chief Executive of Hong Kong (“the CE”). If it appears that the payer under the order “is residing in Hong Kong”, the CE shall send the copy of the maintenance order to the Registrar.

5.Under section 7(3) and (4) of the Ordinance, when the Registrar receives the order, he shall take such steps as he thinks fit for the purpose of ascertaining whether the payer under the order is residing in Hong Kong.  If the payer is residing in Hong Kong, the Registrar shall register the order.  If, the Registrar is satisfied that the payer is not so residing he shall return the certified copy of the order to the CE together with a statement giving such information as he possesses as to the whereabouts of the payer.

6.A registered order is enforceable in Hong Kong as a civil debt as if it had been made by the District Court: section 9(1) and (3)(a) of the Ordinance.

C.  FACTUAL BACKGROUND

7.The facts in this section are not disputed, save where otherwise indicated. 

8.The applicant is an air pilot of Air Canada, on sick leave and receiving 40% wage reduction.  She lives in Canada.  Mr Henderson, an air pilot working for Cathay Pacific Hong Kong, was her ex-husband.  He and the applicant have 2 daughters, now aged 20 and 17 respectively and both in universities.  They are under the care of the applicant.

9.In June 2000, Mr Henderson filed a petition for divorce in the Superior Court of Justice Family Court Branch, Brampton, Ontario, Canada (“the Ontario Court”).

10.By an order made on 25 October 2002 by Kruzick J of the Ontario Court, it was ordered that the matrimonial home in Orangeville, Ontario be vested solely in the name of the applicant.  Mr Henderson was ordered to pay the applicant child support in the amounts set out therein. He was also ordered to answer his undertakings and to comply with previous orders of the Ontario Court on or before 13 January 2003.

11.Mr Henderson failed to do so. It appears that he fled the jurisdiction of the Ontario Court and failed to attend court hearings.

12.By an order made on 9 June 2003 by Kruzick J it was ordered that Mr Henderson’s pleadings be struck out. It was further ordered that there be a warrant of arrest and a warrant of committal against Mr Henderson for his contempt of court orders.

13.On 21 April 2006 Fragomeni J of the Ontario Court issued another order against Mr Henderson whereby he ordered, inter alia, that the latter should not be permitted to proceed with or continue any motion in the divorce proceedings until such time as he has purged all of his contempts, complied with all of the disclosure orders and fulfilled all of his undertakings to the Ontario Court.

14.At the trial of the divorce proceedings in the Ontario Court on 15 January 2009, held in the absence of Mr Henderson, Madam Justice van Rensburg made an order granting permanent custody of the daughters to the applicant with access to Mr Henderson.  She also made an order that Mr Henderson do pay to the applicant spousal support and child support for the daughters in the amounts as set out therein.  She declared that Mr Henderson owed the applicant child support arrears, inclusive of interest in the amount of CAD$360,699 as at 31 December 2008.  Mr Henderson was also ordered to pay costs in the amount set out therein. It was further ordered that the order of Kruzick J regarding the warrant of arrest and warrant of committal against Mr Henderson should continue.

15.By then, the applicant had obtained 10 maintenance orders from the Ontario Court between 1 February 2001 and 15 January 2009 (“the Ontario AR orders”). The 15 January 2009 order was a consolidation of all the previous orders.

16.Mr Henderson failed to comply with the Ontario AR orders. According to the applicant, he only made some occasional payments in small sums whenever he liked.  This is disputed by Mr Henderson who claims to have paid child support of CAD$2,400 from 2000.  The last payment was to the Arizona court in July 2013 (according to his affidavit in August 2013 in HCMP 1780/2103).

17.The applicant has been unable to enforce the Ontario AR orders in Ontario as Mr Henderson has no assets there. His Canadian passport, Canadian pilot license and Canadian driving license have all been confiscated.

18.Ontario is a reciprocating place under the Ordinance.  The responsible authority there is the Family Responsibility Office (“the FRO”).  The FRO has made 4 requests for registration of the Ontario AR orders: in Hong Kong in 2009, in California in 2011, in Arizona in 2012 and in Hong Kong again in 2013.

19.The registration in Hong Kong in 2009 was not successful.

20.The registration in California was successful but yielded nothing because Mr Henderson had fled California before a contempt hearing had been set. 

21.Meanwhile, Mr Henderson remarried in December 2011.  He purchased a house in Arizona at the price of US$1.5 million in March 2012 and has been living with his current wife there till now.

22.The applicant found out about the purchase of the Arizona property and applied for registration in Arizona in August 2012.

23.On 20 May 2013 by an order of the Arizona Court the registration of the Ontario AR orders was confirmed but all enforcement action was stayed until there had been an evidentiary hearing regarding the allegations in Mr Henderson’s objections, namely, “fraud, modification, or partial payment”.

24.An evidentiary hearing was fixed for 24 July 2013.

25.The applicant discovered that prior to the 20 May 2013 order of the Arizona Court, Mr Henderson had transferred half-share of the Arizona property to his current wife on or about 6 March 2013.

26.In May 2013, Mr Henderson’s lawyers filed a motion to vary the Ontario AR orders in the Ontario Court, which the applicant opposed.

27.On 7 May 2013, Madam Justice Snowie made an order striking out the motion. She further ordered that Mr Henderson (then represented) could not bring any motion or take any fresh step until he complied with the Ontario AR orders.  Costs fixed at CAD$10,000 were awarded against him.  

28.The applicant claims that Mr Henderson has a 14-year history of evading payment under the Ontario AR orders.  He would move from place to place to avoid enforcement action against him.  As at 13 June 2013, he was said to have failed to pay an aggregate of CAD$803,610 with an additional amount accruing at CAD$9,774 per month thereafter, with interest.

D.  HISTORY OF REGISTRATION OF THE ONTARIO AR ORDERS IN HONG KONG

29.On 23 April 2009, the then Registrar (“Registrar Poon”) was told that Mr Henderson’s address was at 8 Scenic Road, #1652 Lantau.  A receptionist told the Assistant Chief Bailiff that Mr Henderson “was working as a captain at there but he could not be located because of irregular destinations”. Registrar Poon registered the Ontario AR orders.

30.On 13 August 2009, upon objection from Mr Henderson, Registrar Poon cancelled the registration as “according to information furnished by the respondent, he was not residing in Hong Kong but San Francisco, California” (“the 2009 decision”).  Registrar Poon returned all the papers to the Chief Secretary of Administration Office (“CSA”).  FRO did not pursue further in Hong Kong until 2013.

31.On 22 July 2013, the applicant obtained, ex parte, a worldwide Mareva injunction in the High Court of Hong Kong under HCMP 1780/2013 freezing Mr Henderson’s assets up to CAD$803,610.50, being arrears of maintenance and outstanding costs up to 13 June 2013.

32.On 22 October 2013, at the inter partes hearing of the applicant’s summons for continuation of the Mareva injunction and Mr Henderson’s application for its discharge before Deputy Judge Sakhrani, it was discovered that the Ontario AR orders had not been registered in Hong Kong.  The hearing was adjourned to enable the applicant to do so.  The applicant did apply to the FRO on 27 October 2013.

33.Having learnt that the applicant had applied for registration, Deputy Judge Sakhrani handed down his decision on 27 November 2013 (“the Sakhrani decision”).  Having reviewed the case of Lyle Dicker Grace v The Commissioner for Her Magesty’s Revenue and Customs [2009] EWCA Civ 1082,Deputy Judge Sakhrani decided that there was a good arguable case that Mr Henderson was residing in Hong Kong.  Notwithstanding that he found the applicant guilty of material non-disclosure, Deputy Judge Sakhrani ordered the Mareva injunction to continue. 

34.It appears that the FRO did apply, the second time, on 3 December 2013.

35.The then Registrar (“Registrar Lui”) had had the benefit of the written submission from the applicant and Mr Henderson,  documents in HCMP 1780/2013 and the Sakhrani decision. 

36.Having made investigation through the Chief Bailiff, Registrar Lui found that the address at 8 Scenic Road was his correspondence address and not residential address.

37.On 24 June 2014, Registrar Lui decided not to register the Ontario AR orders (“the 2014 decision”), and informed CSA that according to the information he possessed, the payer was then residing in Arizona.  The reasons which the Registrar gave for the 2014 decision (“the Registrar’s reasons”) were that:

(a) The record of the IRD showed that the residential address of the payer was in the USA;

(b) The payer’s current employer’s information showed that the payer’s residential address was in the USA;

(c) The payer’s bank’s account statements show that the address of the Payer was in the USA;

(d) The payer currently had no residence or residential address in Hong Kong (the 8 Scenic Road address provided by the Payee was just an address of the payer’s employer’s office and crew hotel);

(e) The record of the Immigration Department of Hong Kong showed that the payer’s status in entering Hong Kong was “visitor”; and

(f) The payer’s short stay in Hong Kong from time to time did not amount to any residency in Hong Kong.

38.On 30 June 2014, Mr Henderson applied to set aside the Mareva injunction.  On 11 July 2014, the set aside application was adjourned; the Mareva injunction was continued by Deputy Judge B Chu in view of the applicant’s application for leave to judicially review the Registrar’s decisions. 

E.   THE JUDICIAL REVIEW

39.I granted leave on 17 July 2014.  The applicant seeks to quash the 2009 and 2014 decisions and seeks a mandamus that the Ontario AR orders be registered under the Ordinance.  Mr Ng, counsel for the applicant, has framed 4 issues but he has overlooked the question of delay in seeking leave to apply for judicial review.  I have therefore added one more issue to his list:

(1) Whether the 2009 decision and 2014 decision can be subject to judicial review?

(2) [Added by this court] Whether the applicant was out of time in seeking judicial review of the 2009 decision and what are her explanations?

(3) Whether there was breach of natural justice in the making of the 2009 decision?

(4) Whether the respondent has erred in law, or has acted irrationally in making 2014 decision?

(5) What remedies should be granted?

40.Before I analyze the evidence, I wish to point out that the applicant has put in the papers in connection with what was known as her “slip rule application” (ie to amend the terms of an order by Deputy Judge Hartmann relating to the Mareva injunction) and the proceedings for committing Mr Henderson for contempt.  Those papers were not before the Registrar.  They are placed before me more for the prejudicial effect in tarnishing the image of Mr Henderson than to resolve the issues in the judicial review proceedings.  I disregard those papers.

(1) Whether the 2009 decision and 2014 decision can be subject to judicial review?

41.I have no difficulty in deciding this issue in the positive.  The Registrar is exercising his administrative functions under the Ordinance.  He has to conduct investigation as to the residence of the payer beyond a judicial setting.  He is at liberty to seek legal advice (as he had in dealing with the registration).  There is no avenue of appeal.

42.The applicant is directly affected by the outcome of the 2 decisions. She clearly has locus standi to apply for judicial review.

(2) Whether the applicant was out of time in seeking judicial review of the 2009 decision and what are her explanations?

43.The applicant was about 4 years and 8 months out of time when she applied for leave for judicial review of the 2009 decision on 10 July 2014. This was a substantial delay which would have, in itself, barred the applicant from seeking judicial review.

44.The applicant explained that she was not aware of the 2009 decision until it was raised by Mr Henderson in his 1^st affidavit filed on 8 August 2013 in HCMP 1780 of 2013.  She shifted the blame for the delay to the Registrar and Mr Henderson for failure to provide her with documents leading to the 2009 decision.

45.For the following reasons, I am not satisfied with the applicant’s explanation:

46.Firstly, she must have been aware of the 2009 application through FRO (see exh SHJR 11 to Mr Henderson’s affidavit).  The Registrar had returned all documents to the CSA, who then returned the documents to the FRO on 2 September 2009.  (See letter of the CSA dated 5 August 2013.)  The applicant has not explained whether she was informed by the FRO of the cancellation of registration.

47.However, in his email to the CSA dated 7 January 2014, Mr Henderson claimed, amongst others, that Ms Irene Petrunti of FRO informed him that the applicant has made 3 previous attempts to register the order in Hong Kong but they were all returned as Mr Herdenson did not reside in Hong Kong.  Ms Petrunti also allegedly said that the only address the FRO had was his Arizona address and that it was where FRO considered Mr Henderson to reside full time [B1/120]. This allegation has never been denied by the applicant.

48.Secondly, the fact was that FRO had not dropped out of the picture after the 2009 decision.  It had pursued registration of the maintenance orders in 2 other jurisdictions.  There was no explanation as to why FRO did not pursue the registration in Hong Kong or judicially review the 2009 decision there and then.  It may be that the FRO truly considered Mr Henderson as not residing in Hong Kong.

49.Thirdly, the delay was the applicant’s conscious decision.  As stated above, at the inter partes hearing before Deputy Judge Sakhrani, the applicant had still not applied for registration in Hong Kong.  Deputy Judge Sakhrani stated as follows:

“108. The evidence shows that on or about 19 July 2013 the plaintiff did instruct her Ontario lawyer to start looking into the matter to seek the FRO’s assistance in registering the order in Hong Kong. However, there was no formal application made to the FRO at that time.

109. The plaintiff says that on 30 July 2013 she personally made follow up telephone calls to the FRO to inquire about the registration procedures in Hong Kong. She also says that in September 2013 workers from the FRO told her orally that if she were now seeking registration of the Ontario AR Order in Hong Kong, the FRO would stop representing her for the reason that the Arizona proceedings were ongoing and the FRO would not attend to the Hong Kong registration. For that reason, she withheld making a formal application to the FRO. However, she says that she did not inform her solicitors in Hong Kong about this as she did not want them to directly communicate with the FRO. She was worried that her Arizona enforcement proceedings would have to stop once there was a request to the FRO to register the Ontario AR Order in Hong Kong.

110. Clearly, on the evidence before me, there is nothing to prevent the FRO from seeking registration of the Ontario AR Order in different jurisdictions at the same time. I accept that the plaintiff was mistaken as to whether the FRO could seek registration of the Ontario AR Order in different jurisdictions at the same time. Nevertheless, in my view, her legal advisers should have made proper enquiries with the plaintiff before submitting that she had procured the FRO to seek registration in Hong Kong. I accept that counsel’s mistake in his written skeleton submissions was made because the plaintiff had decided not to inform her legal advisers of her concern and of her decision not to make a formal application to the FRO for registration in Hong Kong. “

50.The applicant entirely avoided dealing with §§108-110 of the Sakhrani decision in her evidence and counsel’s submission. 

51.Fourthly, at the latest, by 19 July 2013, her solicitors, by proper inquiries, would have discovered the 2009 decision.  Computing time from that date, she was still 9 months late in seeking leave.

52.Fifthly, Mr Ng told this court from the bar table that at that time (in about August 2013) the applicant knew that she should apply for judicial review as soon as possible but she did not have the resources.  That was a clear admission of her deliberate move.

53.In summary, the delay of 4 years and 8 months was substantial.  There was no valid explanation.

(3) Whether there was a breach of natural justice in the making of the 2009 decision?

54.Assuming there was no delay, there were little merits in the judicial review.  The applicant’s only complaints were that the Registrar had heard Mr Henderson but not the applicant before making the 2009 decision and the Registrar had withheld documents from her. 

55.These complaints were unmeritorious.  As far as the Registrar is concerned, the channel of communication prescribed by statute was between him and the CE. The Ordinance did not oblige the Registrar to even communicate with the FRO, who was expected to inform the applicant of the 2009 decision.  One must also not forget that the FRO could have challenged the Registrar’s decision if it had wanted to.  I repeat my observations in paragraphs 46-48  above.

56.I refuse to extend time and dismiss the judicial review in respect of the 2009 decision on the ground of delay and, if necessary, for lack of merits.

(4) Whether the respondent has erred in law, or has acted irrationally in making 2014 decision?

57.The determination of whether a decision is irrational is a matter of law to be determined objectively: R v Secretary of State for the Environment, ex p Hammersmith & Fulham LBC [1991] 1 AC 521. per Lord Bridge at p 93E.  That is by no means the same as inviting the court to substitute its own “objectively reasonable” decision: R v Secretary of State for the Home Office, ex p Brind [1991] 1 AC 696 per Lord Ackner at pp 757H-758B).

58.A material mistake or disregard of a material fact in and of itself renders a decision irrational or unreasonable, De Smith’s Judicial Review, 7^th ed, paras 11-041 and 11-056.

59.Mr Ng submits that the 2014 decision was (a) not consistent with the law; (b) it was not coherent with the policy underlying the Ordinance; and (c) the Registrar has failed to act consistently with his own decision-making approach in year 2009.

(4a) Consistency with the law on “residing in Hong Kong”

60.Whether a person resides in Hong Kong is a question of fact to be determined on established principles: Commissioners of Inland Revenue v Lysaught [1928] AC 234, 241.  On law, the principles have been set out in the Sakhrani decision:

“54. A useful summary of what constitutes residence is to be found in the judgment of Lloyd LJ in Lyle Dicker Grace v The Commissioners for Her Majesty’s Revenue and Customs [2009] EWCA Civ 1082 where at paragraph 6 of his judgment Lloyd LJ set out the summary of Lewison J as follows:

‘(i) The word ‘reside’ is a familiar English word which means “to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place”: Levene v Commissioners of Inland Revenue (1928)13 TC 486,505. This is the definition taken from the Oxford English Dictionary in 1928, and is still the definition in the current on-line edition;

(ii) Physical presence in a particular place does not necessarily amount to residence in that place where, for example, a person’s physical presence there is no more than a stop gap measure: Goodwin v Curtis (1998) TC 478,510

(iii) In considering whether a person’s presence in a particular place amounts to residence there, one must consider the amount of time that he spends in that place, the nature of his presence there and his connection with that place: Commissioners of Inland Revenue v Zorab (1926) 11 TC 289,291;

(iv) Residence in a place connotes some degree of permanence, some degree of continuity or some expectation of continuity: Fox v Stirk [1970] 2 QB 463, 477; Goodwin v Curtis (1998) TC 478,510;

(v) However, short but regular periods of physical presence may amount to residence, especially if they stem from performance of a continuous obligation (such as business obligations) and the sequence of visits excludes the elements of chance and of occasion: Lysaght v Commissioners of Inland Revenue (1928) 13 TC 511, 529;

(vi) Although a person can have only one domicile at a time, he may simultaneously reside in more than one place, or in more than one country: Levene v Commissioners of Inland Revenue (1928) 13 TC 486, 505;

(vii) “Ordinarily resident” refers to a person’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, whether of short or long duration: R v Barnet LBC ex p Shah [1983] 2 AC 309, 343;

(viii) Just as a person may be resident in two countries at the same time, he may be ordinarily resident in two countries at the same time: Re Norris (1888) 4 TLR 452; R v Barnet LBC ex p Shah [1983] 2 AC 309, 342;

(ix) It is wrong to conduct a search for the place where a person has his permanent base or centre adopted for general purposes; or, in other words to look for his “real Home”: R v Barnet LBC ex p Shah [1983] 2 AC 309, 345 and 348;

(x) There are only two respects in which a person’s state of mind is relevant in determining ordinary residence. First, the residence must be voluntarily adopted; and second, there must be a degree of settled purpose: R v Barnet LBC ex p Shah [1983] 2 AC 309, 344;

(xi) Although residence must be voluntarily adopted, a residence dictated by the exigencies of business will count as voluntary residence: Lysaght v Commissioners of Inland Revenue (1928) 13 TC 511, 535;

(xii) The purpose, while settled, may be for a limited period; and the relevant purposes may include education, business or profession as well as a love of a place: R v Barnet LBC ex p Shah [1983] 2 AC 309, 344;

(xiii) Where a persona has had his sole residence in the United Kingdom he is unlikely to be held to have ceased to reside in the United Kingdom (or to have “left” the United Kingdom) unless there has been a definite break in his pattern of life: Re Combe (1932)17 TC 405,411.’

55. It is clear that a person may be resident in two countries at the same time. Also, short but regular periods of physical presence may amount to residence especially if they stem from performance of business obligations.”

61.By way of examples,

(a) In Re Young (1 Tax Cas 57), a master mariner who had his home at Glasgow where his wife and family lived, and to which he returned during the intervals between his sea voyages, was held to have resided there.

(b) In Cooper v Cadwalader (5 Tax Cas 101), an American resident in New York who had a house in Scotland which was at any time available for his occupation, was held to be resident there, although in fact he had only occupied the house for two months during the year.

(c) In Hipperson v Newbury District Electoral Registration Officer [1985] 3 WLR 61, in the absence of an injunction requiring them to vacate, seven women who were camping on highway land and common land were held to be “residents” and therefore “entitled to vote”.

(d) Forsyth v Forsyth [1948] P 125 (cited in Collister v Collister [1972] 1 WLR 54) goes even further. Bucknill LJ cites (at 134) the following passage from Dicey’s Conflicts of Laws (5th ed), p 403 with approval:

“Presence is enough or, in other words, residence means for the present purpose nothing more than such presence of the defendant as makes it possible to serve him with a writ or other process by which the action is commenced.”

62.In FRO’s application, Mr Henderson’s address was said to be “USA Basing Limited, 3/F Central Tower, Cathay Pacific City, 8 Scenic Road, Lantau, Hong Kong International Airport”.

63.Registrar Lui later found this out to be the head office building for the administration of pilots of the Cathay Pacific Airways.  Being a pilot, Mr Henderson had the access right at that address but he had no permanent station or office desk there. 

64.As confirmed by his employer, Mr Henderson was employed by USA Basing Limited, registered in and subject to Hong Kong laws.  He was employed under a Hong Kong contract and was based in and operated from San Francisco, USA.  His residential address was in Arizona. 

65.Mr Henderson asserted that he did not have the legal right to reside in Hong Kong.  He had no work visa and was not sponsored to work here.  He came into Hong Kong on an Aircrew General Declaration as did all aircrew that flew into Hong Kong under the ICAO rules.  The conditions of his visa in the US and his application for his green card did not allow him to have a residence anywhere other than the US.  As a pilot, he would arrive in the morning and leave the following day. His time in Hong Kong was for minimum crew rest. Whenever he operated company aircraft to Hong Kong from San Francisco, he was allocated company accommodation in the crew hotel.  He had no personal belongings in Hong Kong.

66.On his tax position, he paid full US federal income tax and full Arizona state income tax as a US resident.  The Hong Kong IRD also considered him to be a resident of the USA and not a resident of Hong Kong. 

67.Mr Ng submits that Deputy Judge Sakhrani had ruled in favour of the applicant on the question of whether Mr Henderson was residing in Hong Kong at the material time but Registrar Lui took a different view.

68.With respect to Mr Ng, Deputy Judge Sakhrani was dealing with an interlocutory injunction.  All that he did was to rule that there was a good arguable case that the defendant was residing in Hong Kong within the meaning of section 7 of the Ordinance: §72 of the Sakhrani decision.  There is a lot more evidence before me in this case than before him then.

69.Mr Henderson might have genuinely, as a layman, thought that he resided in the US. It was also an exaggeration of the applicant to say that Mr Henderson “concealed his real Hong Kong address” from her when a layman would not consider the crew hotel to be his real residence. 

70.However, it was for the Registrar to consider the question of residence in the light of proper legal authorities and the threshold was low.  He had the documents in HCMP 1780/2013, the Sakhrani decision and the submissions of the applicant and Mr Henderson’s counsel before him.

71.Without disrespect, it was not apparent from the Registrar’s reasons that Registrar Lui had considered the authorities relating to residence.  It was not clear if he had considered that Mr Henderson might have 2 residences in 2 different places, and Hong Kong was one of them.

72.There were at least the following aspects of evidence which Registrar Lui had appeared not to have considered:

73.Firstly, whilst Registrar Lui was correct in stating that Mr Henderson had short stays in Hong Kong from time to time, he did not appear to have taken into account the regular pattern of short stays as stated in the 5^th affidavit of Mr Henderson in HCMP 1780 of 2013:

Time period	Number of days in Hong Kong as crew
1.4.2008 to 31.3.2009	65
1.4.2009 to 31.3.2010	67
1.4.2010 to 31.3.2011	84
1.4.2011 to 31.3.2012	87
1.4.2012 to 31.3.2013	94

According to Mr Henderson, any part of a day was counted as a day.  Even if he arrived in Hong Kong at 11:25 pm that counted as a day.

74.The pattern spoke of 2-3 months stay in Hong Kong per year and the number of days per year was growing.  It reflected some degree of permanence.

75.On “permanence”, Sir Donaldson MR held in Hipperson v Newbury District Electoral Registration Officer [1985] 3 WLR 61, 69G:

“Permanence, like most aspects of residence, is a question of fact and degree … All human affairs have a degree of impermanence, the precise degree being best forecast in the light of experience … The requisite degree of permanence has to be established as at the qualifying date … One has only to consider the position of those who move house in a regular manner to see that residence may be established by reference either to past or to future continuity. Take a change of house on 20 October. The vendor establishes the house as his residence on 10 October by reference to his past and present occupation and it is nothing to the point that it will case to be his residence in ten days’ time. Take a change of house on 1 October. The purchaser establishes the house as his residence on 10 October by reference to his present and future occupation and it is nothing to the point that he has only lived there for ten days. …”

76.A stay in a place for 2 months during a year may be sufficient to constitute residence there: see points (iii), (iv), (v), (xi), (xii) and §55 in the case of Lyle Dicker Grace. (See paragraph 60 above.)

77.Secondly, the Registrar did not apparently consider the series of residential addresses that Mr Henderson had in Hong Kong, as revealed from his own documents:

(a) The address at 43B, Block 1, 80 Robinson Road stated in his annual return for employee (2005/2006, 2007/2008);

(b) 57A Tower II Carribean Coast, Tung Chung stated in his wage and tax statement (year unclear), annual return for employee (2007), and earnings and summary ( 2010);

(c) Cathay Pacific Airways at 8 Scenic Road, 1652 Lantau stated in his US tax return when he claimed that he was a non-US resident;

78.Mr Henderson claimed that he had never resided at addresses (a) and (b).  Investigation by the Assistant Chief Bailiff also showed that Mr Henderson did not appear to be resident at those 2 addresses.  Mr Henderson admitted that his accountant filed tax documents for him on a non-resident basis in 2010 to ensure he did not have to pay double tax.  His new accountant has since found out the “incorrect addresses” and sought to correct them.  This was, of course, after the non-resident tax benefit was taken.

79.Thirdly, the Registrar did not apparently consider that Mr Henderson paid Hong Kong tax.  He claimed to have worked 90 days in the year 2010/11 and paid Hong Kong tax for income attributable to those days.  He filed Hong Kong tax returns for the years 2009, 2010 and 2012 and claimed to be a non-US resident. In court proceedings in Ontario in 2005, he admitted that since 1999, the only jurisdiction in which he had filed a tax return was Hong Kong.

80.Mr Henderson also admitted having a Hong Kong pilot license.  He was considered an employee of Hong Kong.  He admitted that all his bank accounts were within Hong Kong and he received his payments only in Hong Kong.

81.Fourthly, the Registrar did not consider Mr Henderson’s admission in emails to his daughters (for 3 consecutive months in 2008) that he was residing in Hong Kong.  In the present case, Mr Henderson explained that he had never accepted his base in Hong Kong and he had written to his daughters to explain.  The applicant did not disclose that letter.

82.Fifthly, the fact of Mr Henderson having a Hong Kong identity card was not considered by the Registrar.  Under section 3 of the Registration of Persons Ordinance, Cap 177 (“ROPO”),

“3(1) Every person in Hong Kong is required to be registered under this Ordinance, unless exempted or excluded from its provisions by regulations made under section 7.” (emphasis added)

83.Regulation 25 of the Registration of Persons Regulations, Cap 177A  provides as follows:

“None of the persons mentioned hereunder so long as he retains the status and qualifications hereinafter mentioned shall be required to register or apply for the issue of an identity card or for the renewal of an identity card under the Ordinance and these regulations –

…

(d) any person who –

(i) is a bona fide traveller in transit through Hong Kong;

(ii) satisfies a registration officer, … that he does not intend to remain in Hong Kong for more than 180 days or such longer period as a registration officer may approve; or

(iii) has been granted permission to remain in Hong Kong by the Director of Immigration for a period of not more than 180 days,

and is in possession of a valid travel document bearing the appropriate visa issued by a competent authority or of an official document of identity indicating that he normally lives outside Hong Kong.”

84.With the Hong Kong identity card, Mr Henderson was clearly not just a traveller in transit, or that he did not intend to stay for more than 180 days in Hong Kong.

85.By a letter dated 23 June 2014 (a day before the 2014 decision), Mr Henderson informed the Registrar that he had returned his Hong Kong identity card to the Immigration Department a few months ago, although the month was not specified. Mr Henderson’s act of renouncing his Hong Kong identity card took place after the Sakhrani decision.  This appeared to be a self serving act to disclaim residence in Hong Kong, as submitted by Mr Ng.

86.The Registrar’s reasons stating that Mr Henderson was a “visitor” was apparently made without reference to section 3 of ROPO and Regulation 25. Moreover, as rightly pointed out by Deputy Judge Sakhrani, it was a self-serving description as Mr Henderson was entering Hong Kong to oppose the continuation of the ex parte order and to resist the contention that he was a resident in Hong Kong.  On all other occasions he had entered Hong Kong on an Aircrew General Declaration: §70 of the Sakhrani decision.

87.Mr Henderson has explained in this case that his ID card was invalid without a supporting visa to live and work in Hong Kong.  As member of a crew, he was entitled to stay in Hong Kong for a maximum 7 days: section 9 POBO.  He had to enter as a “visitor” on the occasion when he did not fly in as a crew member but on his passport to attend the hearing in August 2013.  This piece of evidence was not before the Registrar.

88.Mr Ng complained that the Registrar accorded undue weight to the post-Mareva evidence proffered by Mr Henderson in ascertaining whether he was residing in Hong Kong.  The Registrar’s approach was to knock on the doors of the addresses which appeared in previous official tax and employment documents, at a time well after the applicant has started chasing her support payment against Mr Henderson in Hong Kong. Mr Ng submits that it was a futile exercise and furthermore, questions the Registrar’s reliance on this exercise to justify the 2014 decision.

89.With respect to Mr Ng, this complaint was misconceived.  The application for registration was post-Mareva.  The Registrar’s investigation of residence must of necessity be post-Mareva.  Mr Ng’s complaint was inconsistent with his reliance on Mr Henderson’s previous addresses in Hong Kong.  What the Registrar did was entirely within his statutory obligations.

90.In my view, Registrar Lui had failed to properly direct himself on the law in the light of the principles set out in paragraphs 60 and 75 above.  He had also overlooked several aspects of evidence, which, if considered individually or collectively might have caused his decision to turn the other way.  The 2014 decision was thus made irrationally.

(4b) Coherence with policy underlying the Ordinance

91.Registrar Lui did not spell out the policy in his reasons for the 2014 decision but he has not missed the core issue of residence.  However, in the light of the policy intent of the Ordinance, the Registrar should have taken into account the totality of circumstances.

92.With the ease of travel these days, the posting of an employee to different countries by an international corporation and ease of changing residence to suit one’s employment, the Registrar should be alert to a payer who might have fled from place to place to evade payment of a maintenance order.

93.In the present case, Mr Henderson has appeared in 4 jurisdictions since he filed a divorce. There were arrears of maintenance, unmet court orders, findings of contempt against him, an outstanding warrant for his arrest, job in Hong Kong and bank account in Hong Kong.  These were matters which the Registrar could have taken into account when weighing Mr Henderson’s case on residence, bearing in mind the policy intent of the Ordinance.

94.In his written submission, Mr Ng points out that the Registrar did not seem to have embarked upon any “proportionality analysis” in light of the policy which underlies the purpose of the Ordinance, that is, to acknowledge and ease the hardship caused to ex-wives in enforcing foreign maintenance orders in Hong Kong.  With respect, it was not raised in Form 86 and proportionality of the kind Mr Ng submits was incomprehensible.  He has not even identified eg what limitations the Registrar had imposed on the rights of the applicant or FRO.

(4c) Failure to act consistently with his own decision-making approach in year 2009

95.Again, this complaint is misconceived.  The 2009 decision and 2014 decision were made by different persons taking the office of the Registrar, with very different evidence before each of them.

96.In summary, I find that the Registrar has not properly directed himself on the law and failed to take into account various aspects of evidence and the totality of circumstances of the payer.  The 2014 decision was irrational in the public law sense.

(5) What remedies should be granted?

97.The 2014 decision ought to be quashed.  The question is whether or not I should grant a mandamus for registration of the Ontario AR orders or leave it to the Registrar to re-consider the question of residence.

98.Mr Ng suggests that I should because (i) there was voluminous evidence on residence; and (ii) the applicant may be prejudiced in terms of interest if no mandamus is granted.

99.In Building Authority v Appeal Tribunal (Building) and China Field Limited [2013] 1 HKLRD 101, the Building Authority applied for judicial review of the Tribunal’s decision.  The Building Authority sought an order of mandamus to direct the Tribunal to dismiss China Field’s appeal.  At the CFI level, Lam J (as he then was) observed that:

“91. However, there are cases where the court can come to the conclusion that there could only be one result that is legally open to the administrative body. In those cases, the court can grant a mandamus directing the administrative body to act accordingly. In R v Ealing London Borough Council ex p Parkinson (1996) 8 Admin LR 281 at p.287F , Laws J (as he then was) said,

‘There are … rare cases where the public law court is able to conclude that only one result was legally open to the body in question, and in that case an order of mandamus may issue to require that result to be arrived at. Even there, however, the court does not undertake the role of primary fact-finder, substituting its judgment on the merits for that of the body reviewed. It merely recognizes the existence of a situation in which a public authority, properly directing itself on the facts according to the law, has only one choice legally open to it.’ ”

100.It is true that there was a lot of evidence pointing to Mr Henderson’s residence in Hong Kong and his self-serving acts to deny his residence.  There was, nevertheless, other evidence which pointed the other way.

101.As referred to in §71 of the Sakhrani decision, the applicant had relied on Mr Henderson’s admission of being resident in Hong Kong:

“71. I would also observe that as set out in the letter dated 25 June 2013 from the plaintiff’s attorneys in Arizona, Centuori & Associates, PLLC to the plaintiff’s solicitors in Hong Kong (exhibit SRH-32 to the 1^st affidavit of the plaintiff), the defendant alleged in open court on 6 March 2013 in the Arizona Court that he was a resident of both California and Hong Kong in his attempt to resist the registration of the Ontario AR Order in Arizona. This has not been denied by the defendant. It is significant that the defendant himself claimed to be a resident of Hong Kong as recently as March 2013 thereby contradicting his evidence that he was never a resident of Hong Kong.” (emphasis added)

102.Mr Henderson denies ever saying that he was a resident of Hong Kong.  I have read through that set of transcript in the Arizona proceedings and his denial was substantiated.  The applicant’s US attorney (Ms Letarte) was, to say the least, misleading the Hong Kong court in her letter.  The applicant maintained the correctness of Ms Letarte’s statement exhibit SRH-32.  She explained that the admission was made by Mr Henderson after his and the applicant’s respective Arizona attorneys had completed the arguments in the Arizona court (§8, 1^st affidavit of applicant in IRMO 44), a very different version from that made to Deputy Judge Sakhrani.

103.There was also the evidence of Mr Henderson on his Hong Kong identity card as referred to in paragraph 87 above which might support his visitor’s status.

104.In addition, Mr Henderson pointed out that in October 2013, the applicant’s Ontario attorney (Mr Fanjoy) applied to the FRO giving the Caribbean Coast address as Mr Henderson’s (SHJR 9), when there was no basis to believe he lived there.  Mr Henderson said it was a fraudulent change of address when Mr Fanjoy stated that Mr Henderson had resided with his wife there since 1 January 2011 because Mr Henderson and his wife were only married in December 2011.

105.Mr Ng submits that there were 18 pieces of salient evidence on residence even without regard to Ms Letarte’s evidence.  Be that as it may, weighing the veracity and totality of evidence are matters within the precincts of the Registrar’s jurisdiction and not this court’s.

106.Mr Henderson’s residence in Hong Kong to perform the duties of his employment is not a trump card which of itself concludes the issue in favour of residence.  Regular periods of physical presence may, not must, amount to residence.  See Lyle Dicker Grace v The Commissioners for Her Majesty’s Revenue and Customs, at §§39 and 40. 

107.It is not necessarily the case that upon full consideration of all the evidence, the Registrar will come to one and only one conclusion that Mr Henderson was residing in Hong Kong. It is therefore not appropriate for this court to take up the task for the Registrar in the light of Lam J’s decision. 

108.Mr Ng submits that remittal of the case to the Registrar might cause delay and hence reduce the interest on the arrears of maintenance under section 9(3)(a) of the Ordinance.

109.With respect to Mr Ng, section 9(3) does not create an entitlement to interest.  It would be the Ontario AR orders that did, if at all.

110.In the premises, I decline to issue a mandamus.  The matter is remitted to the Registrar to consider the evidence and representation afresh in the light of this judgment.

CONCLUSION

111.The application for judicial review against the 2009 decision was 4 years and 8 months out of time.  The delay was without good reasons.  The decision not to challenge the 2009 decision was a conscious one on the part of the applicant.  There were little merits anyway.

112.A low threshold should be set for interpreting “residing in Hong Kong” under section 7 of the Ordinance.  The principles have been set out in paragraphs 60 and 75 above.  The Registrar had erred in law in failing to take into account the law and relevant evidence which might have contradicted his finding or altered his decision. 

113.I therefore order as follows:

(1) The application for extension of time to seek judicial review of the 2009 decision is dismissed.

(2) The judicial review of the 2009 decision is dismissed.

(3) There be a certiorari to bring up and quash the 2014 decision;

(4) The application for a mandamus for registration of the Ontario AR orders is dismissed.  The matter is remitted to the Registrar for re-consideration afresh.  The parties are to apply to him for directions for that re-consideration.

114.As to costs, the applicant has failed in relation to the 2009 decision but succeeds to the extent of seeking a remittal for reconsideration in relation to the 2014 decision. 

115.In cases where the inferior tribunal did not contest an eventually successful judicial review but maintained a neutral stance, the usual rule is to make no order as to costs. The principles are laid down in B and others v Torture Claims Appeal Board [2015] 1 HKLRD 681, 6 January 2015, Au J, following R (on the application of Davis (No 2) v Deputy Birmingham Coroner) [2004] 1 WLR 2739:

“(i) The established practice of the courts was to make no order for costs against an inferior court or tribunal which did not appear before it except when there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings;

(ii) The established practice of the courts was to treat an inferior court or tribunal which resisted an application actively by way of argument in such a way that it made itself an active party to the litigation, as if it was such a party, so that in the normal course of things costs would follow the event;

(iii) If, however, an inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction, procedure, specialist case-law and such like, the established practice of the courts was to treat it as a neutral party, so that it would not make an order for costs in its favour or an order for costs against it whatever the outcome of the application;

(iv) There are, however, a number of important considerations which might tend to make the courts exercise their discretion in a different way today in cases in category (iii) above, so that a successful applicant, like Mr Touche, who has to finance his own litigation without external funding, may be fairly compensated out of a source of public funds and not be put to irrecoverable expense in asserting his rights after a coroner (or other inferior tribunal) has gone wrong in law, and there is no other very obvious candidate available to pay his costs.”

116.The Registrar maintained a neutral stance.  He only filed an affirmation to put forth facts to assist the court.  There was no improper conduct on his part.  There did not appear to be any invitation for him to “consent” to an order which he unreasonably declined.  In any case, this judicial review involves a point of law which might affect future applications for registration under the Ordinance and the hearing was necessary.

117.The real contester is Mr Henderson and he has failed. 

118.I make an order nisi that (a) there be no order as to costs against the Registrar; and (b) that Mr Henderson do pay 50% of the costs of these proceedings to be assessed.  The applicant do file and serve her costs statement by 14 April 2015.  Mr Henderson do file and serve his grounds of objections by 5 May 2015.  There be summary assessment of costs on the papers without a hearing on 6 May 2015.

119.I thank Mr Ng for his assistance.

Mr Felix Ng, instructed by Deannie Yew and Associates, for the applicant

The Department of Justice for the respondent (appearance exempted)

Interested Party appeared in person