W v. C

( English Translation)
CACV 36/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 36 OF 2011

(ON APPEAL FROM FCMC NO. 10543 OF 2009)

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J U D G M E N T

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Hon Cheung JA:

1. I agree with the Judgment of Yuen JA.

Hon Yuen JA:

Introduction

2. This matter originated from an appeal from a judgment given by KW Wong DJ on 7 December 2010 in FCMC10543/2009 which were divorce proceedings commenced by W (“the Wife”) against C (“the Husband”).  Judge Wong’s decision related to the custody, care and control of, and access to, their child (“the Child”).

3. At the first hearing of the appeal on 23 March 2012, this court was concerned whether the court had jurisdiction, as it was questionable on the evidence whether the Husband was domiciled in Hong Kong at the date of the petition for divorce (as was asserted in the petition).

4. Section 3 Matrimonial Causes Ordinance Cap. 179 (“MCO”) provides:

“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 ... ”.

5. As both parties were not legally represented, Mr Clark Wang of Counsel was appointed as amicus.  We are grateful to Mr Wang for his submissions and assistance at the hearing on 11 June 2012.

Background

FCMC10166/2008 (the 1^st proceedings)

6. The Wife had first issued a petition for divorce in the Family Court of Hong Kong on 27 August 2008 in FCMC10166/2008 on the ground of unreasonable behavior.  It was stated in the petition that the Husband was domiciled in Hong Kong.  The Husband’s address for service was a residential unit in Kwun Tong. The petition claimed, amongst other relief, custody, care and control of the Child. 

7. The Husband did not dispute the jurisdiction of the Hong Kong court to deal with the matter.

8. However the evidence showed that the family had been living in New Zealand and at the commencement of the proceedings (and thereafter), the Husband, the Wife and the Child were living in Guangdong Province on the Mainland. 

9. On 25 March 2009 Judge Wong gave directions for an International Social Service report to be prepared, and for the Husband to have interim access to the Child, to be given at a basketball court in a hospital dormitory in Guangdong Province.

10. On 14 July 2009, Judge Wong gave an order, amongst other things, giving leave to the Wife to issue a fresh petition on the ground of 2 years separation since 14 July 2007.  It was further ordered that upon the issue of the fresh petition, the petition in the 1^st proceedings would be dismissed and all documents transferred to the fresh petition.

FCMC10543/2009 (the 2nd proceedings)

11. On 21 August 2009 a fresh petition for divorce was issued by the Wife on the ground of 2 years separation.  Again the petition stated that the Husband was domiciled in Hong Kong and his address for service was the Kwun Tong address. 

Commencement of Domicile Ordinance (“DO”)

12. Between the dates of the 1^st petition (27 August 2008) and the 2^nd petition (21 August 2009), the Domicile Ordinance Cap. 596 came into force on 1 March 2009. 

Applicability of the DO

13. The effect of the Ordinance is that

“the domicile that an individual had at a time before the commencement date of this Ordinance shall be determined as if this Ordinance had not been enacted” (s.13) i.e. according to common law, and

“the domicile that an individual has at a time on or after the commencement date of this Ordinance shall be determined as if this Ordinance (other than section 13) had always been in force” (s.14(1)).

(Emphasis added).

14. In other words, if theissue was whether the Husband was indeed domiciled in Hong Kong at the date of the 1^st petition, that issue would have been decided according to the common law.

15. However as the 1^st proceedings have been dismissed and a fresh petition (not an amendment of the 1^st petition) was issued in the 2^nd proceedings, theissue is whether the Husband was domiciled in Hong Kong at the date of the 2^nd petition, and since the DO had commenced by then, this issue should be decided according to the DO.

Relevant Facts

16. The relevant objective facts can be summarized as follows.

1970	The Husband was born on the Mainland.  He grew up there.
1977	The Wife was born on the Mainland.  She grew up there.
1992	The Husband acquired the right of abode in Hong Kong but he stayed on the Mainland to continue his studies at university there.
1993	The Husband graduated and started working on the Mainland.
1996	The Husband started a course of studies at the Chinese University Hong Kong for a Ph D degree.
2000	The Husband obtained his Ph D degree and started employment in Hong Kong
2001	The Husband and the Wife met.
	The Husband applied for emigration to New Zealand (“NZ”).
2002	The Husband went to the USA for further studies.
Mid-5.2002	The Husband entered Hong Kong
	The Husband and Wife were married in Hong Kong (23.5.2002)
	The Wife’s name was added to the Husband’s NZ immigration application.
	The Husband returned to the USA.
Early 6.2002	The Wife returned to the Mainland.
1-2.2003	The Husband left the USAvia Hong Kong and entered the Mainland.
	The Husband and Wife left the Mainland and entered NZ as immigrants.
	The Husband started working in NZ.
Late 2003	The Husband and Wife bought a home in NZ.
2003-7	The Husband and Wife lived and worked in NZ.
3.2007	The Child was born in NZ.
7.2007	The Wife authorized the Husband to sell the home in NZ.
	The Husband, Wife and Child left NZ to return to the Mainland but the Husband kept his post at his employer.
	The Wife issued divorce proceedings on the Mainland.
	The Husband stayed in Hong Kong to process the Child’s application for right of abode (14-25.7), then entered the Mainland.
8.2007	The Husband returned to NZ.
12.2007-	The Husband left NZ,
1.2008	stayed on the Mainland for 1 month, and returned to NZ.
4.2008	The Husband resigned his post in NZ.
	The Husband left NZ via Hong Kong and returned to the Mainland.
5.2008	The Husband started working on the Mainland.
27.8.2008	Date of Petition in 1st proceedings.
1.2009	The Husband applied for a residence permit in Guangdong Province.
2.2009	The Husband obtained a 5-year residence permit in Guangdong Province.
1.3.2009	Commencement date of Domicile Ordinance
21.8.2009	Date of Petition in 2nd proceedings
8.2.2010	Decree Nisi
7.12.2010	Judge Wong’s order

Was the Husband domiciled in Hong Kong on 21 August 2009?

17. The issue therefore is, on the date of the petition in the 2^nd proceedings (21 August 2009), was the Husband domiciled in Hong Kong, bearing in mind that “no individual has, at the same time and for the same purpose, more than one domicile” (s.3(2) DO)?  If he was not domiciled in Hong Kong on that date, under the existing petition the court simply has no jurisdiction in these proceedings.

18. As the Husband was born and grew up on the Mainland, it is clear that as a child he was domiciled there.  This is so, whether by reference to the common law concept of domicile of origin, or by reference to the DO as that was the country with which he was then most closely connected (s.4(1) DO).  That is of course a different domicile from Hong Kong.  

19. The issue is, on 21 August 2009, had he acquired a domicile in Hong Kong?  An adult retains the domicile he had immediately before he becomes an adult (s.5(1)DO) – in the Husband’s case, the Mainland – unless it could be proved that he acquired a new domicile in a country or territory if (a) he was present there and (b) he intended to make a home there for an indefinite period (s.5(2) DO).

20. A list of factors that may be taken into account in determining an individual’s intention whether to make a home in a particular place was conveniently set out by Chu DJ in Y v W FCMC1847/2011, as follows:

“(i) Length of residence;

(ii) Condition of residence: Purchased property? Leased property? Furnished lodgings? Hotels?;

(iii) Marriage with a local partner;

(iv) Whereabouts of the family;

(v) Business interest;

(vi) Whereabouts of personal belongings;

(vii) Whereabouts of the person’s property and investments;

(viii) The fact of naturalisation;

(ix) Decision made as to the nationality of the children;

(x) Education of the children;

(xi) Memberships of clubs or religious associations;

(xii) Place of work;

(xiii)  Relation between a man and his family.”  

21. On 21 August 2009, the Husband’s position was as follows. 

21.1  Although some 17 years previously he had acquired the right of abode in Hong Kong, that was as part of his father’s family.  In any event acquiring the right of abode is not equivalent to acquiring domicile here (see the Legislative Council Brief on the Domicile Bill para. 6(c)).  He stayed in Hong Kong to study and then worked here for a year.  He applied for emigration to New Zealand soon after that (2001).  He went to the USA.  He married in Hong Kong because the formalities were simpler.  He then returned to the USA.  He never made a home in Hong Kong with the Wife.

21.2  Significantly in 2003-4, he and the Wife took the decision to actually emigrate to New Zealand, where they settled, secured employment and bought a home.  Two years before 2009, their child was born there. 

21.3  Pausing there, it is clear from those actions that at some stage during the Husband’s presence in New Zealand, he intended to make New Zealand his home for an indefinite period.  He had thus acquired a new domicile – in New Zealand.

21.4  After the Child’s birth (and according to the Husband, as a result of persuasion by the Wife’s parents who came to stay with them in January 2007 to obtain permanent resident status there) the Husband and Wife decided to leave New Zealand to return to the Mainland.  The Wife did not wish to continue living in New Zealand.  The Husband thought that his job prospects would be better on the Mainland, although he kept his post with his employer in New Zealand.  The Wife signed an authorization for the Husband to sell the matrimonial home. 

21.5  The family (Husband, Wife and Child) together with the Wife’s mother left New Zealand to return to the Mainland.  They did so via Hong Kong.  The Husband stayed here for 11 days on his own because he needed to attend to formalities for the Child to acquire right of abode here.  In fact, those 11 days were the longest period of time he spent in Hong Kong after emigrating to New Zealand 4 years ago.

21.6  However when the Husband returned to the Mainland, the Wife told him she wished to divorce him.  The Husband was opposed to a divorce.

21.7  In August 2007 the Husband returned to New Zealand, attending to the rental and sale of the matrimonial home, and spent the next few months traveling between New Zealand and the Mainland, making an attempt at reconciliation. 

21.8  Eventually the Husband resigned his employment in New Zealand and took up new employment on the Mainland in May 2008, although he has also said that he hopes to bring the Child to New Zealand.  That was the position on the date of the 2^nd petition, 21 August 2009.

22. The issue before this court is whether the Husband was domiciled in Hong Kong on that date.  It is not necessary and may not be desirable for the court to determine whether the Husband was domiciled in New Zealand or on the Mainland on that date.  Although it is clear he had acquired domicile in New Zealand at some stage before the Child’s birth in 2007, by August 2009 the Husband had sold his home and resigned his employment in New Zealand.  It may be that at some stage during his presence in the Mainland during the 16 months between April 2008 and August 2009, he intended to make it his home for an indefinite period, thereby acquiring a new domicile – the Mainland.  It is not necessary for the court in these proceedings to determine whether that was so.  Having acquired domicile in New Zealand, the Husband may or may not have acquired a new domicile (the Mainland) in its place, but the end result is nevertheless that he was not domiciled in Hong Kong on 21 August 2009. 

23. No other ground under s.3 MCO has been advanced for the Hong Kong court to have jurisdiction in the divorce proceedings.  It does not matter that the Wife asserted it in her petition and it had not been denied by the Husband.  Parties cannot confer jurisdiction on a court by consent.  As was held in R v R [2006] 1 FLR 389 at para. 6, “domicile is decided by applying the law to the facts ... a question of jurisdiction based on the application of law cannot be compromised”. 

24. As Judge Wong’s order under appeal was made within those proceedings, a finding that the Hong Kong court has no jurisdiction has the effect of invalidating the order (and indeed the proceedings).  That is the only issue with which this court was concerned and we do not consider it appropriate to comment on the Husband’s proposed plan of action regarding any applications he may wish to make under other areas of the law.

25. It would also be necessary to declare that the decree nisi, made without jurisdiction, is void as being a nullity (Dennis v Dennis [2000] Fam 163).

26. In light of our view that the court has no jurisdiction, the following discussion on forum non conveniens is obiter dicta.  It should also be noted that there is no expert evidence on Mainland law and relevant evidence may be incomplete. 

Forum non conveniens

27. The doctrine of forum non conveniens applies in matrimonial proceedings (see eg Louvet v Louvet [1990] 1 HKLR 670). 

28. Irrespective of whether any party wished to apply for a stay, the court can on its own consider whether Hong Kong is the forum with the most real and connection with the case. 

29. The principles have been set out conveniently by this court (Cheung JA and Tang JA, now Tang PJ) in a matrimonial context in DGC v SLCneeC CACV37/2005 as follows: 

“11. The principles are :

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.

3. If the applicant is able to establish both of these two matters, then the plaintiff in the Hong Kong proceeding 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.

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.”

30. Ultimately in deciding in the exercise of discretion whether to stay proceedings for forum non conveniens, the court would ask itself the question whether the interests of the parties and of justice are best served by the proceedings being conducted here or elsewhere. In the context of the present case, the following factors would have been pertinent had this court found jurisdiction. 

30.1  In the present case there is no expert evidence before this court as to whether the parties could only obtain a valid divorce in the Hong Kong court. 

30.2  As to ancillary relief, there is no evidence that the parties have any assets here.  The residential address in both petitions is the unit of the Husband’s parents who are now residing on the Mainland.

30.3  What concerned this court most was the fact that although Judge Wong’s order related to the custody, care and control of the Child, none of the parties, or the Child, was resident here.  This may lead to the following areas of concern.

(1)  Cross-border social workers were instructed by the court to prepare reports.  They conducted interviews with the parties or other care givers residing outside Hong Kong.  However arrangements for supervised access may be far more difficult logistically to arrange, short of sending social workers to expend substantial time and expenses to travel regularly to the Mainland.

(2)  The common order for a child to be brought to a supervised neutral location (say, a community centre in Hong Kong) for parents to deliver or pick up the child, would not be easily available.  In the present case the Husband actually had access to the Child staying inside a crowded mass transit train station, which cannot be in the best interests of the Child.

(3)  The court would be unfamiliar with matters relevant to its orders relating to a child, such as the Mainland systems governing rights to residence, education and medical treatment.

(4)  More important is the question of enforcement of orders.  It is well known that in cases involving access to children, parties may behave emotionally and there is often far more recourse to the court than in other types of cases for follow-up actions, sometimes as a matter of urgency. Without deciding the truthfulness of some of the allegations made in the present case about the Wife denying the Husband access to the Child, there have been suggestions that the Wife has threatened to take the Child to places as diverse as Hainan island and locations in the countryside.  It may not be in the interests of justice for court orders to be made when they may be freely flouted by non-resident parties, with the court powerless to enforce its orders. 

31. Every case must be decided on its own facts.  For example, a court may easily be able to oversee the sale of an expensive overseas property where there are professional valuations from both sides.  In contrast it may be very difficult for a court to supervise access to a child when the parents are emotional and hostile.  Judges should therefore take the nature, importance and frequency of possible problems into account when deciding, even in a case where the court has jurisdiction, whether or not to invoke the forum non conveniens doctrine to decline jurisdiction.

Order

32. In the circumstances of the present case, it would be appropriate to make an order dismissing FCMC10543/2009 and all orders made therein (to avoid any misunderstanding, this dismissal does not have the effect of reviving FCMC10166/2008 over which the court similarly has no jurisdiction).  It is also declared that the decree nisi granted on 8 February 2010 is void and set aside as being a nullity.  There will be an order nisi that there should be no order as to costs.

Hon Lam JA:

33. I agree with the Judgment of Yuen JA.