YMLI v. LTYS also known as LSTY also known as LST

FCMC 10591 / 2024

[2025] HKFC 151

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 10591 OF 2024

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DECISION

( Stay of Proceedings and Declaration (forum) )

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1.  By way of a summons dated 25 November 2024, the Respondent (“the Husband”) made an application for the following relief:

1)  Considering the best interests and convenience of the parties and the proceedings pending between the parties in the Family Court of England and Wales, more particularly (i) divorce proceedings XXXXXXXXXXXXXXXXXXXXX, and (ii) financial remedy proceedings XXXXXXX XXXXXXXXXXXXX, there be a declaration that the Hong Kong Family Court shall not exercise any jurisdiction it may have in the present proceedings; and

2)  There be a general stay of these proceedings and the dissolution of the marriage between the parties and any ancillary relief matters be dealt with by the Courts of England and Wales, more particularly the Family Court and/or the Family Division of the High Court of England and Wales.

2.  I set out the following salient background facts below.

3.  The Husband is 86 years old and the Petitioner (“the Wife”) is 65 years old. The parties began dating in or around 1982. According to the Wife, she would occasionally spend time at the Husband’s home since in or around 1985. The Husband has not confirmed or denied this. His evidence is that the parties’ relationship up until 1990 was very casual. The parties were subsequently married in Hong Kong in 2004. The Husband claims he was mostly living abroad due to work commitments and spent limited amount of time in Hong Kong during the duration of the parties’ marriage.

4.  The parties’ children were born before marriage: the eldest son was born in 1998 and the youngest son was born in 2002. Both sons were raised and educated in Hong Kong during their primary and secondary school years. Upon completion of secondary school, both sons left for USA to attend university.

5.  On 4 October 2024, the Wife filed for divorce in Hong Kong. The Husband filed his divorce application in England on 4 November 2024 (“the English Divorce Proceedings”). Both parties have been served with the respective divorce applications. The Husband’s legal representatives inform this court the Wife has taken out an application for stay of the English Divorce Proceedings. The hearing of the Wife’s application for a stay of proceedings is fixed before Mr. Justice Trowell in the High Court of England and Wales, to be heard on 27 October 2025, with 5 days reserved.

THE LAW

6.  I shall set out the relevant legal principles relating to the jurisdiction of this court and forum non conveniens.

7.  Section 3 of the Matrimonial Causes Ordinance (Cap 179) (“MCO”) states the following:

“3. Jurisdiction in divorce

The court shall have jurisdiction in proceedings for divorce under this Ordinance if—

(a) either of the parties to the marriage was domiciled in Hong Kong at the date of the petition or application; (Replaced 29 of 1995 s. 3)

(b) either of the parties to the marriage was habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of the petition or application; or (Replaced 29 of 1995 s. 3)

(c) either of the parties to the marriage had a substantial connexion with Hong Kong at the date of the petition or application. (Added 68 of 1970 s. 26. Amended 29 of 1995 s. 3)”

8.  The principles of forum non conveniens, in the context of matrimonial proceedings, are set out in the Court of Final Appeal’s decision in SPH v SA [2014] 3 HKLRD 497 as follows:

“VI Forum non conveniens: principles

50. It is now well established in Hong Kong that the general principles of forum non conveniens apply to the stay of matrimonial proceedings: Johnston, Conflict of Laws in Hong Kong (2nd ed 2012), para 7.104.

51. We adopt the re-statement of the principles in matrimonial proceedings by the Court of Appeal (Cheung JA and Tang JA (as he then was)) in DGC v SLC (née C) [2005] 3 HKC 293, 297-298, applying Spiliada Maritime Corporation v. Cansulex Limited [1987] 1 AC 460, 477 and Louvet v. Louvet [1990] 1 HKLR 670, 674-675:

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

2. In order to answer this question, the applicant for the stay has to establish that first, Hong Kong is not the natural or appropriate forum (‘appropriate’ in this context means the forum has the most real and substantial connection with the action) and second, there is another available forum which is clearly or distinctly more appropriate than Hong Kong. Failure by the applicant to establish these two matters at this stage is fatal. (“Stage 1”)

3. If the applicant is able to establish both of these two matters, then the plaintiff in the Hong Kong proceedings has to show that he will be deprived of a legitimate personal or juridical advantage if the action is tried in a forum other than Hong Kong. (“Stage 2”)

4. If the plaintiff is able to establish this, the court will have to balance the advantages of the alternative forum with the disadvantages that the plaintiff may suffer. Deprivation of one or more personal advantages will not necessarily be fatal to the applicant for the stay if he is able to establish to the court's satisfaction that substantial justice will be done in the available appropriate forum.” (“Stage 3”)

52. The Court of Appeal in that case (as in the present case) emphasised that the husband was entitled to sue in Hong Kong as of right. Where jurisdiction is founded in the Hong Kong court as of right (as in divorce proceedings like the present case), the party seeking the stay has to establish that there is another available forum which is clearly or distinctly more appropriate than the Hong Kong forum.  This derives from what Lord Goff said in Spiliada (at 477), which has been regularly applied in Hong Kong: e.g. The Kapitan Shvetsov [1997] HKLRD 374 at 377; The Peng Yan [2009] 1 HKLRD 144, at [22].”

9.  I shall refer to the three-stage test set out in DGC v SLC (née C) [2005] 3 HKC 293 by reference to Stage 1 to 3 in my analysis below.

DISCUSSION

10.  The Husband does not dispute Hong Kong courts have jurisdiction over the current divorce proceedings initiated in Hong Kong. The Husband’s main argument is whether England is clearly and/or distinctly the more appropriate forum to litigate the present divorce proceedings.

A.  Summary of Parties’ submissions

11.  I shall not repeat each and every submission made by the parties’ respective counsel. Suffice to say, I have considered their submissions in reaching my decision. I shall summarize the salient arguments made by both sides below.

12.  In summary, the Husband submits England is clearly and distinctly the more appropriate forum for the following reasons:

1)  The location of the Husband’s assets.

a)  The majority of the Husband’s assets are located in England and settled into a discretionary trust under Jersey law (“the Jersey Trust”). The property/assets settled under the Jersey Trust is estimated to be valued at HKD19.16 billion, of which HKD8.66 billion of assets are located in London. For reasons set out below, the Husband argues the English courts are in a better position to consider the proper value of his assets.

2)  The “relative ability” of the English and Hong Kong courts in determining the matters in dispute.

a)  The Husband contends the English courts have more expertise and are more experienced in dealing with disputes relating to the Jersey Trust compared to that of the Hong Kong courts.

b)  Moreover, counsel for the Husband, Ms Yip SC, submits the English courts are better equipped to deal with the valuation of the Husband’s assets because there are complicated tax implications when calculating the correct value of his assets.

3)  The length of proceedings in Hong Kong compared to England.

a)  The Husband claims the divorce proceedings in England are likely to be concluded within 18 months. He argues that it would take much longer if the proceedings were to be litigated in Hong Kong. He further argues if the divorce proceedings could not be concluded in an efficient and speedily manner, he would suffer significant prejudice due to his old age and deteriorating health.

4)  The Husband’s age and health.

a)  The Husband claims that due to his age and health, it would be impracticable for him to travel back and forth if the divorce proceedings were to be conducted in Hong Kong.

b)  Furthermore, due to his own personal circumstances, the Husband has safety concerns in traveling back to Hong Kong for the purposes of conducting the present proceedings.

5)  The Husband’s ties with England are much stronger compared to his ties with Hong Kong (if any).

13.  Needless to say, the Wife strongly contests the Husband’s present application. In summary, the Wife argues that the submissions made by the Husband are irrelevant in the court’s determination of whether England is the distinctly more appropriate forum. Moreover, the Wife claims the Husband’s submissions and assertions are not supported by evidence.

14.  The parties’ counsel are in disagreement as to how the court should approach and consider the issue of whether England is the more appropriate forum. Ms Yip SC argues that all the factors must be considered holistically in reaching the decision and relied on, inter alia, the case of Limbu v Dyson Technology Ltd [2025] ICR 560.

15.  Counsel for the Wife, Mr Man SC, argues Ms Yip SC’s suggested approach is misconceived. He submits the court should not engage in a balancing exercise until the Husband is able to show England is clearly and distinctly the more appropriate forum. He concludes the submissions relating to the Husband’s personal circumstances are irrelevant for the purposes of considering which forum is the clearly and distinctly more appropriate forum.

16.  I set out below my reasoning on the proper approach to be adopted.

B.  The proper approach to be adopted and whether the Husband’s personal circumstances are to be considered at Stage 1 of the test

17.  In considering Stage 1 of the test, the Husband must prove that Hong Kong is not the natural and appropriate forum for the present divorce proceedings AND that England is the clearly and distinctly the more appropriate forum. In other words, Stage 1 is a 2-part test.

18.  In order to determine whether Hong Kong is the natural and appropriate forum of the present divorce proceedings, this court must determine whether the present proceedings have a real and substantial connection to Hong Kong. This requires the court to consider whether the matrimonial life was conducted in Hong Kong.

19.  A summary of the underlying considerations on whether Hong Kong is the natural and appropriate forum is succinctly set out by Cheung JA (as he then was) in the case of RI v SSH [2010] 4 HKC 588 at paragraphs 2 and 4 of his judgment:

“2. The underlining principle in challenges against the Hong Kong

Court’s jurisdiction on the ground of forum non conveniens is whether the

Hong Kong proceeding has a real and substantial connection to Hong

Kong. This theme is manifested by the test that in order to succeed in the

challenge not only is Hong Kong not the appropriate forum but another

jurisdiction is the more appropriate forum. In other words, Hong Kong is

not the appropriate forum because another jurisdiction has a real and

substantial connection to the proceeding: see Spiliada Maritime

Corporation v Cansulex Ltd [1987] AC 460.

4. . . .

Hence in order to see whether the proceeding has a

real and substantial connection to Hong Kong, one must, first of all,

ascertain whether at the time of its commencement the parties have

substantially conducted their matrimonial life in Hong Kong. Hong Kong

being an international commercial city, the identification of this issue is

most acute for expatriate families who live in Hong Kong. The relevant

considerations are, for example, whether the parties’ matrimonial home is here; what is their past pattern of life; do they regard Hong Kong as their home for the time being even if their life style may indicate that they may not take root in one place for too long a time. Related to the issue are

matters such as the place of work of the spouses: do they choose to work

here; even if one of them has to ‘commute’ overseas to work, is Hong

Kong still treated as their home base. Likewise for the children of the

family: are they studying here or spending their vacations here even if they are studying abroad.”

20.  The second part of Stage 1 requires the Husband to prove England is clearly and distinctly the more appropriate forum. The factors to be considered must be relating to the subject matter itself. One must differentiate the factors that connect to the dispute and those that point to injustice if the dispute is litigated in a particular jurisdiction. The former (being factors that connect the dispute) are relevant in considering whether a particular jurisdiction is the more appropriate forum. However, the latter (being factors that point to injustice) is only relevant to Stage 2 and 3 of the test, that is, when the court must consider whether any loss of personal juridical advantage warrants the refusal of stay of proceedings.

21.  I find support for my analysis above in the case of Butler v Butler [1997] 2 FLR 311 at page 333, where Lord Justice Ward cited the judgment of Lord Goff of Chieveley in de Dampierre v de Dampierre [1988] 1 AC 92, [1987] 2 FLR 300 and stated the following:

“The approach he was thus advocating was summarised in his speech at

108A–D and 310G–H respectively:

‘The effect is that the court in this country looks first to see what factors there are which connect the case with another forum. If, on the basis of that enquiry, the court concludes that there is another available forum which, prima facie, is clearly more appropriate for the trial of the action, it will ordinarily grant a stay, unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted: see Spiliada …’

Lord Templeman, in his speech with which Lord Goff himself agreed, said at 102B–C and 305B–C respectively:

‘I have read in draft the speech prepared by my noble and learned

friend, Lord Goff of Chieveley. I agree with his approach and with his

conclusion that the common law test of justice as between plaintiff and

defendant in commercial disputes corresponds to the statutory test of

fairness as between husband and wife in matrimonial disputes.’

Applying those principles, Mr Pointer QC concedes that there is no such

jurisdiction or other disadvantage to the husband were he compelled to

conduct this litigation in Florida as would in justice and in fairness to him

demand that he should not be shut out from this jurisdiction, but required by us on the contrary to be left solely to the tender mercies of a foreign court. It follows therefore that the inquiry in this case is essentially one into the convenience. As that word is to be understood, the question is more appropriately but generally addressed in these terms: with which jurisdiction are these proceedings more closely connected?”

22.  In so far as Ms Yip SC argues the Husband’s personal circumstances should also form part of the court’s holistic analysis, I am of the view the answer is found in the case of Butler v Butler [1997] 2 FLR 311 at 320 where Lord Justice Roch stated:

“To say that it is not apt to confine factors to those that would be relevant to the trial of a contractual dispute, and to indicate that emotional and psychological turbulence may play a part in the selection of the forum conveniens when the proceedings are matrimonial, in my view, disregards the House of Lords decision in de Dampierre v de Dampierre [1988] 1 AC 92, [1987] 2 FLR 300 that in such proceedings the court should adopt the same approach as that adopted at common law in cases of ‘forum non conveniens’ where there was a lis alibi pendens. Who is to be able to pray in aid ‘emotional and psychological turbulence’? It seems to me that such matters can have no relevance, certainly none at the first stage of the process.”

23.  The same is reiterated by Ng J in the case of Elite Consortium Ltd v Yim Wan Por [2022] HKCFI 3303 at paragraph 35 and 36 of his judgment which reads as follows:

“35. The words “clearly or distinctly” suggest that the onus is not

to be lightly discharged. The burden of proof on the defendant in a stay

application has been described as “a very high burden”: China

International Fund Ltd v West China Cement Ltd unrep, HCA 1889 of 2019, 4 December 2020, DHCJ Burns SC at [27]-[28].

36. Mere convenience is not enough nor is it enough simply to

point to factors which connect a case or the parties to any particular

jurisdiction. The approach in forum non conveniens applications is not just an exercise in loading up with factors which point to any particular

jurisdiction. The court is required to focus on appropriateness of a forum

from the point of view of the trial of action: Rambas Marketing Co LLC v

Chow Kam Fai David [2001] 3 HKC 250, 255B-C per Recorder

Geoffrey Ma SC (as he then was).”

24.  I accept that, as general principles of justice would dictate, if there were factors that point to a real risk of denial of justice by granting or refusing the stay of proceedings application, the court should consider the same and ensure any decision would not deny any party of justice. I agree with the paragraph 23 of Lord Justice Popplewell’s judgment in Limbu v Dyson Technology Ltd [2025] ICR 560 in which he stated the following:

“For both service in and service out cases, if the court concludes that

the foreign court is more appropriate by reference to connecting factors,

applying the relevant burden of proof, the court will nevertheless retain

jurisdiction if the claimant can show by cogent evidence that there is a real risk that it will not be able to obtain substantial justice in the appropriate foreign jurisdiction (Vedanta at para 88). Cogent evidence does not mean unchallenged evidence (Vedanta at para 96). This is often conveniently treated as a second stage in the analysis because it usually calls for an assessment of different evidence, but it does not involve a different question: if there is a real risk of denial of justice in a particular forum it is unlikely to be an appropriate one in which the case can most suitably be tried in the interests of the parties and for the ends of justice: Vedanta at para 88.”

25.  However, this is not a carte blanche for parties to stack personal factors against each other and ask the court to disregard the three-stage approach laid down by the leading authorities of DGC and SPH. I believe such considerations are more appropriately classify as matters to be considered at Stage 2 and 3 of the test, not at Stage 1.

26.  Hence, by reason of my analysis set out above, I am of the view the Husband’s attempt to group all factors together (including those relating to the personal circumstances of the Husband) as being relevant to the Stage 1 of the test is, with respect, erroneous. I am of the view that factors connected to the dispute are those that should be considered when deciding whether England is clearly and distinctly the more appropriate forum. Factors that are related to possible injustice caused by personal circumstances are only relevant at Stage 2 and 3 of the test.

C. Stage 1

(i)  Whether the parties’ matrimonial life has real and substantial connection to Hong Kong

27.  The Husband contends the situs of matrimonial life is not in Hong Kong and this is supported by the fact the couple do not own a matrimonial home in Hong Kong. Moreover, the Husband claims that he did not cohabit with the Wife before their marriage, and he mostly stayed in England for the duration of the parties’ marriage.

28.  Having considered the evidence, I am of the view it is plain and obvious the majority of the parties’ matrimonial life was conducted in Hong Kong. The parties were married in Hong Kong and the Wife has always been living in Hong Kong. Their sons grew up in Hong Kong and were educated in Hong Kong just before they left to the USA for tertiary education. The fact that the Husband travels abroad frequently does not take away from the fact that the family spent their family life in Hong Kong. Although I accept that the family would spend some time in England (for example, during school holidays), this cannot detract from the fact that the family was based in Hong Kong. I am of the view that there is simply no evidence to support the Husband’s claim that the situs of the parties’ matrimonial life was somewhere else other than Hong Kong. I also note that although the Husband disputes the situs of matrimonial life being in Hong Kong, he does not positively claim the situs of matrimonial life was in England. This then begs the following question: if the Husband disputes the situs of matrimonial life is Hong Kong, where does he say the situs of the matrimonial life to be? Having perused the Husband’s affirmations, his evidence provides no answer to this question. Once one looks at the Husband’s contention in this light, it is obvious the plain answer is that the parties’ matrimonial life was conducted nowhere other than in Hong Kong.

(ii)  The parties’ respective domicile

29.  In so far as the Husband argues he is now domiciled in England, I am of the view this submission is a neutral factor in the present analysis. In the present case, the parties are domiciled in different countries. One party’s domicile is no more advantageous than the other party’s domicile. The Wife is clearly domiciled in Hong Kong and brought this action as of right in Hong Kong. In such a circumstances, the parties’ domicile is not determinative of which jurisdiction is the clearly and distinctly more appropriate forum.

(iii)  Location of assets and the ability of the courts to deal with the assets.

30.  Ms Yip SC agrees to the proposition I have set out in my judgment of WSN v BOM [2024] HKFC 191, that is, that the location of assets in itself is not a determining factor. However, Ms Yip SC argues that the location of the assets in England means any division of assets will be subject to complicated tax implications. Such tax implications will have significant impact on the valuation and proper division of those assets in the ultimate ancillary relief trial.

31.  I find no merit in this argument. Firstly, the Husband has chosen not to adduce any expert evidence to support his argument. There is no expert evidence before me to show the extent of purported complications in the valuation of the Husband’s assets and there is no evidence to support the Husband’s contention that the Hong Kong courts cannot resolve the same by relying on expert evidence. Furthermore, there is no evidence before me to prove what complex tax issues are involved, the extent of the complexity of such issues, how the said issues (if any) it would arise in the present proceedings, and why the Hong Kong courts are unable to deal with the same via foreign law expert evidence. It is trite to say that Hong Kong courts are frequently tasked with valuation of overseas properties and/or assets. There is simply no reason or evidence put forward to explain why the Hong Kong courts cannot deal with the same.

32.  The other main argument by the Husband is that since most of the Husband’s assets are settled in the Jersey Trust, the English courts are more experienced and the more appropriate forum to consider the same. Extensive submissions were made on the complexity of Jersey law, which would impact the enforcement of any trust property division. I shall not repeat the said submissions. Suffice to say I have considered such submissions in full.

33.  Firstly, with respect, I find the submissions made about the ability of Hong Kong courts to deal with complex legal issues arising from Jersey law and the Jersey Trust to be condescending of the Hong Kong courts, to say the very least.

34.  Hong Kong courts have long been handling complex and diverse financial arrangements between litigants, including complex trust arrangements. I find it difficult to understand on what empirical evidence or basis the Husband concludes the English courts are more apt in handling issues relating to Jersey trusts than that compared to Hong Kong courts.

35.  Both the English courts and Hong Kong courts would require expert evidence on Jersey law when considering the division of the Husband’s assets. I fail to see how the Hong Kong courts are especially disadvantaged compared to the English courts.

36.  As stated by the Hon Anthony Chan  in the case of ING Bank NV v Industrial and Commercial Bank of China Limited [2024] HKCFI 2220 at paragraph 36(7) of the judgment:

“It is incumbent on the stay applicant to show that the issues

are “substantial or difficult”, which the Hong Kong court

“will not feel itself confident to deal”: DP World Djibouti

Fzco v China Merchants Port Holdings Co Ltd [2022] 2 HKC

267, [63].”

37.  I agree with Mr Man SC that any issue relating to foreign law can be dealt with by foreign expert evidence and there is no particular advantage or disadvantage suffered by either the England or Hong Kong courts in this regard.

38.  I therefore do not accept the Husband’s submissions in this regard.

39.  Second, I am of the view Ms Yip SC’s general submissions on Jersey law are of no assistance to this court in determining the specific circumstances of this case. There is no expert evidence on the specific complexities arising from the Husband’s Jersey Trust. The lack of any expert evidence means this court is not in a position to assess how such complexities, if any, would impact the present divorce proceedings in Hong Kong. It is not sufficient for the Husband merely to produce copies of legislation and academic literature to show possible foreign issues the Husband seeks to rely on. If the Husband seeks to persuade this court there are complicated issues of foreign law that make England the more distinct and appropriate forum, this court must understand the legal issues involved and the impact such legal issues may have on the present proceedings. Without the assistance of a foreign law expert, Ms Yip SC is effectively asking the court to speculate on the complexities she submits. This is highly unsatisfactory especially when HHJ Liu, in her letter to the parties dated 12 March 2025, had already reminded the parties that they should adduce foreign law expert evidence if necessary. I set out her note to the parties as follows:

“1. The court is inclined to take the view that evidence on English law is needed if parties take issues on juridical advantage; for case management purposes, this evidence should be given by a single joint expert, but not by each of the parties filing their own evidence under 038 r 36(2).”

40.  Third, as with all international element cases, the point of foreign valuation is at best neutral. This is because if the proceedings were to be conducted in England, the English courts would also have the task of determining foreign assets, i.e. the Hong Kong assets. Ms Yip SC argues it is particularly difficult to conduct valuation on Jersey trust assets. She further submits that although the Hong Kong courts may be able to decide on appropriate valuations, the English courts are in a better position to do so.

41.  Again, this court is not assisted by any expert evidence to show why it is difficult to conduct valuation on Jersey trust assets. There is no evidence to support Ms Yip SC’s submission that the English courts are in a better position to conduct such valuations. Furthermore, there is no evidence to suggest the Hong Kong courts cannot conduct such valuation with the relevant expert evidence. In absence of any evidence to the contrary, I am of the view the Hong Kong courts are equally just as competent as the English court in carrying out the task of valuation of the matrimonial assets, wherever the assets may be located.

(iv)  Length of proceedings in Hong Kong

42.  The Husband claims the English courts are able to dispose of the present case quicker than the Hong Kong courts.

43.  I shall deal with this submission succinctly.

44.  The progress of any case in any jurisdiction is primarily dictated by the parties’ litigation conduct and not solely by the efficiency of a judiciary alone. If the parties are litigious and engage in satellite litigation, or have a propensity to take out voluminous interlocutory applications, I cannot see how any judiciary, no matter how efficient, can conclude a case within a short amount of time. Cases in Hong Kong can be concluded within a short timeframe if the parties are able to conduct the litigation in an efficient manner. I believe it is fallacious (if not inappropriate) for parties and/or practitioners to anchor their submissions on the efficiency of any judiciary based on the length of time taken to conclude a case without factoring the parties’ litigation conduct, the complexity of the case, and other relevant factors which contribute to the prolonging of litigation.

45.  Given the high net worth of the Husband and the extensive location of his vast asset portfolio, I anticipate the parties’ divorce proceedings, wherever it may be conducted, will be highly contentious and involve complex factual and legal disputes. In such circumstances, I fail to see how Ms Yip SC can be certain the English courts will conclude the ancillary relief trial within 18 months.

46.  I would also add the fact that the Wife’s application for stay of proceedings is fixed for a 5-day hearing in the High Court of England and Wales (compared to the 1-day hearing fixed in the Hong Kong Family Court) is a clear indication of the complexity of the case. In deciding to fix a 5-day hearing, the English courts must have taken the view the complexity of this case requires 5 days’ of court hearing time just to resolve issues arising out of the Wife’s application for stay alone. In such circumstances, I have grave reservations whether a case of this magnitude could be completed within 18 months in the English courts.

47.  Having considered the parties’ submissions, and for reasons set out above, I find the Husband is unable to prove Hong Kong is not the natural forum of the present proceedings. I further find he is unable to prove England is clearly and distinctly the more appropriate forum for the present divorce proceedings.

48.  As stated in the case of SPH, the failure of the Husband to establish England as the distinctly more appropriate forum is in itself “fatal” and the court is no longer required to consider Stage 2 and 3 of the test.

49.  However, for sake of completeness, I shall add a few words about the extensive submissions on the Husband’s personal circumstances.

D.  Personal circumstances of the Husband

50.  I do not intend to deal with each and every submission under this category made by Ms Yip SC. I shall only deal with the salient points raised.

51.  There is no medical evidence adduced by the Husband to prove his health condition is so dire he is unable to travel to Hong Kong or to participate in the proceedings if it were to be continued in Hong Kong. I find this telling. If the Husband’s purported condition were true, the Husband’s team of medical doctors could simply write a report on his health condition. I am not prepared to accept the Husband’s bare assertion of frailty without any medical evidence.

52.  In any event, I agree with Mr Man SC that if the Husband found it necessary, he could attend the hearing by way of remote hearing. With the recent enactment of the Courts (Remote Hearing) Ordinance (Cap. 654), the use of remote hearings in proceedings is now entrenched in law. No doubt, the use of remote hearings will be more common and more frequent in the courts of Hong Kong, if not already so. Ms Yip SC mentioned matters about time difference and the right to be present. However, I am of the view those submissions are non-starters. The availability of remote hearings means the Husband’s right to participate in the proceedings is unhindered by time or geographical constraints. If he feels he is unable to travel, he will have the use of technology to enable him to exercise his right to be present at the hearings. As for the complaint about the possibility of needing to wake up in the middle of the night to give evidence, this is not a point in the Husband’s favour. The fact that the parties are living in separate time zones necessarily dictates that one party or the other will experience some inconvenience due to time difference. In any event, Hong Kong courts have in different cases, and where justified by circumstances, sat at non-conventional court hours to take evidence involving international witnesses. I fail to see any merit in the Husband’s complaint.

53.  As for the Husband’s purported personal security issues, I am of the view this is not objectively substantiated by the evidence before me. I am of the view the Husband’s subjective feelings of personal safety is irrelevant to the court’s consideration of whether England is the more appropriate forum. In so far as the Husband claims the case would cause a mass media frenzy also contributing to his safety concerns, I am unable to accept such submissions. It is pure speculation whether the Husband’s fame could cause some sort of mass media frenzy to the extent of causing any personal safety concerns. I am not prepared to accept this matter as being relevant in my determination of whether the Hong Kong proceedings should be stayed.

54.  Hence, even if I were to consider the Husband’s purported medical condition, his subjective fear of personal safety, and publicity issues, I would still find the Husband unable to prove England is clearly and distinctly the more appropriate forum. Furthermore, I do not find the said matters raised to point to any real or substantial injustice to be suffered by the Husband so as to warrant a stay of the Hong Kong divorce proceedings.

SUMMARY AND ORDERS

55.  By reason of the matters set out above, I therefore refuse the Husband’s application and dismiss paragraph 1 and 2 of his summons.

56.  I see no reason why costs should not follow the event. I therefore make a costs order nisi and other consequential directions as follows:

1)  Costs of the Respondent’s summons dated 25 November 2024 be to the Petitioner, to be summarily assessed, with certificate for three counsel.

2)  Unless any party applies to vary the above costs order nisi within 14 days hereof, the costs order shall become an order absolute.

3)  The summary assessment of costs of the Respondent’s application shall be dealt with by way of paper disposal.

4)  The parties shall propose directions on the paper disposal of the summary assessment of costs no later than 28 days from the date of this Decision.

5)  Parties shall make an application to restore the First Appointment hearing, to be heard before a master, and shall approach the Registry no later than 30 days from the date of this Decision for the purposes of fixing the next First Appointment hearing date.

6)  If the parties intend to apply to have the case transferred to the High Court, the parties should take out their application no later than 21 days before the scheduled First Appointment hearing.

57.  Lastly, I thank counsel for their assistance.