HRT v. ST nee SB

FCMC 12404 / 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 12404 OF 2007

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REASONS FOR DECISION

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INTRODUTION

1. This is a Summons taken out by the respondent wife (hereinafter to be called “the wife”) on 16^th January 2008 (“the Summons”).  By the Summons, the wife asks that the Petition for Divorce (“the Petition”) issued by the petitioner husband (“the husband”) on the 10^th day October 2007 here in the District Court of the Hong Kong SAR (“this Court”) be stayed on forum non-conveniens, namely that the Superior Court of Justice, Province of Ontario Canada (“the Ontario Court”) is a more appropriate forum for the hearing of all matters between the parties. 

2.     The application is opposed by the husband.

THE ISSUES

3.   The main issue to be decided is which court is a more appropriate forum to hear the petition and ancillary relief matters of the parties upon their divorce, the Ontario Court or this Court?

HISTROY OF MARRIAGE

4.     I shall set out a brief account of the history of the marriage relevant to this application herein below on the basis of undisputed facts as revealed from parties’ affirmations.

5.     The husband was born and brought up in Scotland.  He is now 62.  The wife was born in Canada and is now 60 years of age.  The parties got married on 13^th July 1968 in the UK.  They have two children who are now adults and are living independently from the parties.  The husband is an engineer who has been working throughout the world and for this reason the parties have been living in various places like the UK, France, Prague, the Middle East, Singapore, China and Hong Kong.  It is not disputed that they had spent 5 years together in Hong Kong between 1985 and 1991 due to the employment of the husband.

6.     The parties had once separated in 2001 when they were living in Shanghai, China.  Despite attempts made on reconciliation, the husband resigned from his then employer and moved to the United States of America (“the USA”) in December 2002.  He stayed there on the strength of a tourist visa. On the other hand, the wife moved back to Ontario in or about May 2003 and, she stayed there and assisted with the care for the brother of the husband who was recovering from a stroke. 

7.     It is not disputed that the husband had been paying visits to the wife in Ontario to explore the possibility of reconciliation in August and October 2003.  In February 2004 the husband eventually moved to stay with the wife in Ontario.

8.     In about May 2004, the parties bought a property in Ontario in joint name.  In 2005, the husband applied for Canadian citizenship and was granted the status of landed immigrant.  An Ontario driving license was issued to him.  It was rather unfortunate that the parties separated again.  The wife says that the separation took place in February 2007 when the husband left Ontario due to his job but did not return to Ontario since.  In the Petition, the husband says that the separation took place in September 2001.  In fact, during that time, i.e. from 2004 to 2007, the husband was still travelling quite a lot outside of Canada due to his job requirement. 

9.     The wife has commenced divorce proceedings in Ontario in December 2007 and on 10^th April 2008 there was a court order granting permission for the wife’s petition to proceed in Canada.  I was given to understand at the hearing that a divorce certificate would be issued on 25^th  May 2008. 

THE LEGAL PRINCIPLES :

10.  The legal principles determining issues on forum have been succinctly summarized in Rambas Marketing Co LLC v.  Chow Kam Fai David [2001] 3 HKC 250.  Recorder Geoffrey Ma SC, as he then was, says in pp 253-254 that:

   “Court’s approach in stay applications

…..The basic principles originate in recent times from Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460…..

In Hong Kong, the court’s approach is dealt with in the judgment of Hunter JA in The Adhiguna Meranti [1987] HKLR 904 at 907 F – 908 B, setting out a 3-stage summarizing the effect of Spiliada (the page references are to the report of that case in [1986] 3 WLR) :

(1)     Is it shown that Hong Kong is not only not the natural or appropriate forum for the trial, but that there is another available forum which is clearly or distinctly more appropriate than Hong Kong (p.  986 H).  The evidential burden is here upon the applicant.  The emphasis is upon “appropriate” rather than “convenient” because this is not simply a matter of practical convenience.  The purpose is to identify the forum “with which the action has the most real and substantial connection” per Lord Keith in the Abidin Daver [1984] AC 398. 

(2)     If the answer to (1) is yes, will a trial at this other forum deprive the plaintiff of any “legitimate personal or juridical advantages”  ?  (pp.  987F, 991 – 3).  The evidential burden here lies upon the plaintiff (pp.  986 A and 987 G).

(3)     If the answer to (2) is yes, a court has to balance the advantages of (1) against the disadvantages of (2), Abidin Daver per Lord Brandon at p.  419….” 

Argument for the wife

11.  At the hearing of this Summons, on behalf of the wife, Mr Mok submits, in gist, that neither the case nor the husband has a real and substantial connection in Hong Kong and therefore this Court is not the natural and appropriate forum and furthermore there is a more appropriate forum to which the this Court should defer.  In support of his argument, Mr Mok contends that the husband is a British national holding a valid British Passport.  The reason why for his staying in Hong Kong at present is that he has an employment contract for 12 months which would expire by December 2008.  The visa granted for him to enter Hong Kong was granted on the condition of his employment.  The visa is about to expire, subject to renewal, in October 2008.  His Hong Kong identity card does not accord him any right of permanent abode in Hong Kong.  He has no properties or investment in Hong Kong.  He is living in a rented place.  It is pointed out to me that the husband has only spent 3 months here in Hong Kong at the time he filed the Petition in this Court.

12.  Mr Mok further submits that the case has a most real and substantial connection with the Ontario Court.  Reasons include that the husband has a property there which is jointly owned by the parties.  The convenience of enforcement should be considered in this application.  Further the husband has been treating Canada as his usual residence since 2004.  It is also said on behalf of the wife that the proceedings in Canada is now at a more advance stage where it is expected that a certificate of divorce is ready to be issued on 25^th May 2008 and so far there has been no action taken by the husband to stay the proceedings thereat.  Mr Mok, in summing up says that for the reasons aforesaid, not only this Court is not the natural and appropriate forum, the Ontario Court is the available forum which is clearly and distinctly more appropriate than this Court.

Argument for the husband

13.  In support of the husband’s opposition to the wife’s assertion that this Court is not the appropriate court to deal with the matter, it is said on the husband’s behalf that he has a real and substantial connection with Hong Kong.  It is said that he has the right to live and work in Hong Kong and thus considers himself ordinary and habitual resident here.  Although he is here on an employment visa, he has every expectation for this visa to be extended on its expiry.  He says in his affirmation that he has applied for immigration status here and can apply for the right of abode after 7 years continual ordinary residence.  He furthers says that he maintains his primary residence here.  

14.  On the issue of whether the Ontario Court is clearly and distinctly more appropriate than this Court, the argument put forward on behalf of the husband by Mr Clement is that the husband has no real and substantial connection with Canada.  It is said that he has not pursued his application for citizenship, he says that he stayed in Canada as a tourist while making attempts to reconcile with the wife. 

15.  It is further submitted that the wife has failed to discharge the evidential proof that Ontario Court is clearly or distinctly more appropriate than this Court as required by the law.  In support of this complaint, Mr Clement says that the wife has produced no relevant Canadian statutes or authorities to state the approach of the Ontario Court on the issues of divorce and distribution of family assets between parties.  He says that this is fatal to the wife’s case as she has thus failed to prove the appropriateness of the Ontario Court in hearing the matter.

DISCUSSION

Stage 1

Whether this Court not the natural or appropriate forum for the trial and Ontario Court is clearly and distinctly more appropriate?

16.  I have to be satisfied that this Court is not the natural or appropriate forum and there is another available forum which is clearly or distinctly more appropriate than this Court before I would exercise my discretion to stay the proceedings in Hong Kong.  I note that in DGC v.  SLC nee C (CACV 37/2005), Cheung JA indicated at paragraph 12 therein that in essence these are not two separate inquiries because the factors that need to be considered are the same and overlapping. 

17.  Reading from the authorities, including Rambas Marketing, Supra and Louvet v.  Louvet and Another, Civil Appeal No.  75 of 1989, factors such as, among others, residence of parties, availabilities of witnesses and documents are relevant depending on the facts of individual case. 

Residence of Parties

18.  Although the husband claims he has the right of residence here in Hong Kong, I find his residence tenuous.  He is a UK national, as he says he has never given up his domicile in the UK.  He is here in Hong Kong on a 12-months visa dependent on his employment.  On the other hand, the wife’s residence in Canada is more settled.  She is a Canadian by birth.  She has returned and has been staying there since May 2003 after the husband left her in Shanghai.  She has business and co-owns a property with the husband there.

Availabilities of witnesses

19.  I am given to know that if the case were to go for trial, the witnesses to be called would be the parties only.  While it is quite certain that the wife would still be staying in Canada at the time of trial, it is not so certain that the husband would still be in Hong Kong given that he has only an employment visa here to stay with his track record of frequent travelling due to his job.  I see from his movement record that he spent less than half of his time in Hong Kong during his stay here in the past 13 months.  He is still travelling frequently and his employment contract is for 12 months only although it is subject to extension.  His stay in Hong Kong is dependent upon his employment situation.  I understand that his employer is a company domiciled in Germany with a registered office in Hong Kong.  I must say that the circumstances render his stay in Hong Kong tenuous.   Even if he stays in Hong Kong at the time of the trial, I do to think he has a stronger case over the wife in this regard. 

Location of Assets

20.  It is not disputed that the parties co-own a property in Canada.  There is a business operated by the wife for the retirement of the parties in Ontario.  I understand that parties have two other landed properties in the UK.  There are some retirement funds held by parties under same policy with an insurance company which cannot be said to be a Hong Kong based company.  In the petition of the wife filed in the Ontario Court, she states that the husband has two pensions, one with his former employer and one in France.  There is no evidence from the husband to tell me the position of these pension funds, whether they have been realised or not, and if realised, where they are at present.  In short, there is no evidence saying that such funds are now in Hong Kong.  Although the husband says he has a bank account here, I am not told whether the fund therein represents a meaningful portion of his liquidated assets.  The wife has no assets in Hong Kong at all. 

Availabilities of documents

21.  There is no submission made in this regard by both sides.  From their pleadings, it is anticipated that documents at trial are those related to the parties’ assets.  As the wife is more settled in Canada with one of the valuable family property and a business located in Canada, I would not expect that there would be difficulties in retrieving or producing the relevant documents to the Ontario Court in Canada.  As to the husband, his only assets in Hong Kong is his bank account, I see no difficulties in discovery of such documents for the purpose of trial in the Ontario Court either.  I could see in the petition of the wife that she is asking for an order for full disclosure by the husband on all of his assets.  I believe the Ontario Court is competent in making such order to facilitate the process of the trial.

Proceedings in Ontario Court

22.  The wife says that the Ontario Court proceedings is at a more advance stage as a divorce order has been granted on 24^th April 2008 and a divorce certificate equivalent to decree absolute in Hong Kong would be issued on 25^th May 2008.  On the other hand, as to the proceedings in Hong Kong, it is the wife’s position that she would challenge the Petition as according to her the separation commenced only in February 2007 and there was no separation for two years as pleaded by the husband as at the date he filed the Petition with this Court.  In other word, the wife is saying that the proceedings in Hong Kong would be at least more time consuming if not more expensive. I have read the order of the Ontario Court dated 24^th April 2008, it says that:

“THIS COURT ORDERS THAT ST and HRT who were married at Christchurch, England on July 13, 1968 be divorced and that the divorce take effect 31 days after the date of this order.”

There is also footnote saying that :

“Neither party is free to remarry until this order takes effect, at which time you can get a Certificate of Divorce from the court office.” 

The Approach of the Ontario Court

23.  It is submitted by Mr. Clement that the wife has failed to produce any evidence on the approach of the Ontario Court in determining dispute on distribution of family assets ad divorce.  He says that this is fatal to the wife’s application because she has thus failed to prove the appropriateness of the Ontario Court.  Mr. Mok does not dispute that there is no such evidence produced but he makes no submission in reply. 

24.  I agree that there is no evidence produced in this regard, the question is whether this is fatal to the wife’s application.  I note from the authorities that certain factors, some called them “the connecting factors”, were normally discussed and considered at stage 1 when deciding the appropriateness of a court.  It was mentioned also that there was no exhaustive list of such connecting factors suggested.  The whole of the circumstances of a case must be considered along the guidelines of the three-stage process and at the end, to see which court would produce a more fair result in the interest of the parties.

25.  I agree with Mr. Clement that in many of the authorities, it could be seen that the substantive and/or procedural law of the competing court was discussed at length and that is certainly a relevant factor to consider when deciding the appropriateness.  Mr. Clement has mentioned DGC and SLC nee C CACV 37/2005 in particular.  He says that the Australian law has been discussed therein.  I have read this authority in detail.  In that case, Cheung JA rejected the wife’s argument that Australia was a more appropriate forum on the basis of her failing to prove the connecting factors which, to me, did not include the approach of the Australian Court on the issues (para 16 on P16H-L).  The approach of the Australian Court was discussed in paragraph 18 therein instead.  The crux of the discussion in paragraph 18 was whether there would be any specific advantage to be gained by one party if the case was to be tried in one court and not the other.  Obviously, this was discussed under a different principle by the appellate judges after they had dealt with appropriateness. It should be the 3^rd principle of 4 of them as set out in page 5 of the judgement.  The question to be asked under principle 3 is similar in essence to that at stage 2.

26.  It is also worth to note that in Rambas Marketing, Supra, the Navada law was discussed at length at stage 1. The discussion was about how an agreement reached on the governing law of a transaction would affect the decision on the appropriateness of a court.  Recorder Geoffrey Ma SC, as he then was, referred to the relevant part of the speech of Lord Goff in Spiliada1 at 478A-B that the law governing the relevant transaction is considered to be a connecting factor.  In such circumstances, it is proper to have it discussed at stage 1 when dealing with appropriateness. But in the present case, I am of the view that the approach of a court in that one would be disadvantaged or otherwise is more a question to be dealt with in stage 2.  For this reason I could not agree with Mr. Clement that the failure to prove the approach of the court is fatal in proving the appropriateness of a court in stage 1 if the purpose is for the court to see how one party would be disadvantaged or otherwise. 

27.  I note that in Louvet v Louvet, Supra, Hunter JA refused the submission that the question of foreign substantive or procedural law should not be discussed at stage 2.  I note also that he went further to say that nothing in the speech of Lord Goff had ever suggested that it was a fundamentally different and mutually exclusive inquiry to be carried out at the two stages2. So, even if I am wrong on finding that in this particular case the approach of the Ontario Court should be more appropriately dealt with at stage 2, I find it only fair if the husband would at least point out why he says the Canadian law or her legal framework would make the Ontario Court not appropriate. I have read through his affirmation in opposition to the wife’s application, I see that the ground in opposition set out by him was mainly on his substantial connection with Hong Kong and the lack of connection with Canada. Nowhere did he mention that the Canadian law, be it substantive or procedural, renders the Ontario Court inappropriate to deal with their divorce or ancillary relief matters. Whilst I agree that the burden is on the wife to prove appropriateness or otherwise, I do not believe she has to go so far as to deal with matters not raised by the husband in his opposition, especially when there is no exhaustive list on the suggested connecting factors to be dealt with at stage 1. 

28.  I am mindful that it is not “convenience” but “appropriateness” that I should look into.  Taking an overview of the whole matter, in my judgment, the action has the most real and substantial connection with the Ontario Court.  I am satisfied that the wife has proved that this Court is not the natural and proper forum and that the Ontario Court is clearly or distinctly more appropriate than Hong Kong.

Stage 2

Will a trial by the Ontario Court deprive the husband of any "legitimate personal or juridical advantages?

29.  As mentioned above, Mr. Clement complains that the wife has not produced any information on the approach of Ontario Court regarding ancillary relief such as whether the guiding principle is equal sharing of family assets between parties.  I must say that if it is a matter to be considered here at stage 2, it is for the husband to prove (See Rambas Marketing, Supra, p 986-987.).  There is no submission made in this regard on behalf of husband.  I do not see any legitimate personal or juridical advantages that the husband would be deprived of if the matter were to be tried by the Ontario Court.  There is no evidence before me to show that the legislation or the legal system in Canada would put him in a less advantageous position than if the case were to be tried in Hong Kong.  Furthermore, as I could see from the petition of the wife, what she is asking for is “an order for the equalization of the net family property”.  I do not think the husband would be put in a less advantageous position given the recent decision made by the Hong Kong Court of Appeal in DD v.  LKW CACV 91/2007 where it is said that the principle for assets distribution is fairness and equal division between parties is one of the ways to enhance fairness between the parties. 

Stage 3

Whether a stay should be granted in the overall circumstances and justice of the case?

30.  Stage 3 is a balancing exercise.  I am to balance the advantages of having the case heard in the Ontario Court as I have decided in stage 1 and the disadvantage in stage 2.  Since there is no disadvantage established in stage 2, I am of the view that I should exercise my discretion to grant stay in the overall circumstances and justice of the case.

CONCLUSION

31.  On the basis of the circumstances of the case, I find that not only this Court is not the natural or appropriate forum for the trial, there is a clearly or distinctly appropriate court than Hong Kong, namely the Ontario Court.

32.  I exercise my discretion to grant a stay of the proceedings in this Court.

COSTS

33.  I make an order nisi that there costs for this hearing be to the wife, to be taxed if not agreed.  Such order is to become absolute if there is no application made by the parties within 14 days.