SL v. WB

FCMP 70/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO.70 OF 2017

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Reasons for Decision
( Leave for s29AC MPPO Application )

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1.  On 12^th April 2017 the Applicant (hereinafter called “W”) applied by way of an ex parte originating summons for leave under section 29AC of Part IIA of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”) to make application for financial relief under section 29AG of MPPO against her former husband the Respondent (hereinafter called “H”) herein upon the dissolution of their marriage earlier in PRC.

2.  In support of her leave application W had filed 2 affirmations dated 13^th April 2017 and 1^st June 2017 respectively. After hearing her counsel’s submission on 15^th May 2017 and 9^th June 2017, I reserved my decision and now I refused to give leave to W and dismissed her application with reasons for my decision.

Relevant Background

3.  W and H got married in March 2005 in the Civil Administration Bureau of Yun Yan Qu, Guiyang Shi, PRC.  Following their marriage, W gave birth to her eldest daughter (hereinafter called “the daughter”) in May 2006 in Guiyang Shi, PRC and to her youngest son (hereinafter called “the son”) in August 2012 in Hong Kong.

4.  In early 2012, as H and W intended to relocate from Guiyang Shi to live in Hong Kong, H made an application to enter and remain in Hong Kong under the Capital Investment Entrant Scheme (“CIES”) operated by the Immigration Department of the HKSAR.  Under the said Scheme, H had invested a total of HK$10 million (the “CIES investment”) in specified financial assets under the CIES.

5.  H’s CIES application included H as the main applicant and the daughter and W and also another child of H in his earlier marriage as dependants of H.  The son was not included in H’s application as the son was born in Hong Kong with the right of abode in Hong Kong.

6.  On or about 13^th March 2013, the Immigration Department of HKSAR had formally approved the CIES application of H and his dependants.  As a result of the approval of CIES application, W had obtained a Hong Kong identity card on 8^th July 2013.

7.  W and H got divorced on 28^th July 2014 in the Civil Administration Bureau of Nanming Qu, Guiyang Shi, PRC. During the said divorce proceedings in PRC, H and W had entered into a Chinese divorce settlement agreement which dealt with the issues including the custody and care of the children, financial provision for the children and W, and division of the matrimonial assets.

8.  Under clause 3(4) of the said Chinese divorce settlement agreement, H was required to transfer the beneficial ownership of the CIES investment to the son and before the son attains 18 years of age the CIES investment was to be administered by his guardians, namely W’s brother and W.

9.  W said that in breach of clause 3(4) of the said Chinese divorce settlement agreement, H refused to transfer the beneficial ownership of the CIES investment to the son and refused to transfer the control of the CIES investment to W’s brother and W as guardians of the son.

10.  W also said that her 50% share of a private company owned by them (hereinafter called “Guizhou company”) had been transferred to H without her consent or knowledge in breach of clause 3(6) of the said Chinese divorce settlement which required her 50% share of Guizhou company to be transferred to the son.

11.  All along the close relatives of the parties are living in Guiyang Shi PRC.

Applicable Law and Principles

12.  Section 29AB of Part IIA of MPPO provides that where a marriage has been dissolved or annulled, or the parties to a marriage have been legally separated, by means of judicial or other proceedings in a place outside of Hong Kong, and the divorce, annulment or legal separation is recognised as valid by the law of Hong Kong, either of the parties to the marriage may apply to the court for an order for financial relief, which is what W now seeks to do.

13.  There is however a filter mechanism under section 29AC to regulate the making of such application:

“(1) No application for an order for financial relief may be made unless the leave of the court has been obtained in accordance with rules of the court.

(2) The court must not grant leave unless it considers that there is substantial ground for the making of an application for an order for financial relief.

(3) The court may grant leave under this section despite the fact that an order has been made by a competent authority outside Hong Kong requiring the other party to the marriage to make any payment or transfer any property to, or for the benefit of, the applicant or a child of the family.

(4) Leave under this section may be granted subject to any conditions the court thinks fit.” 

14.  Section 29AE also sets out the jurisdictional requirements:

“The court has jurisdiction to entertain an application for an order for financial relief if any of the following requirements is satisfied –

(a) either of the parties to the marriage was domiciled in Hong Kong –

(i) on the date of the application for leave under section 29AC; or

(ii) on the date on which the divorce, annulment or legal separation obtained in the place outside Hong Kong took effect in that place;

(b) either of the parties to the marriage was habitually resident in Hong Kong –

(i) throughout the period of 3 years immediately before the date of the application for leave under section 29AC; or

(ii) throughout the period of 3 years immediately before the date on which the divorce, annulment or legal separation obtained in the place outside Hong Kong took effect in that place; or

(c) either of the parties to the marriage had a substantial connection with Hong Kong –

(i) on the date of the application for leave under section 29AC; or

(ii) on the date on which the divorce, annulment or legal separation obtained in the place outside Hong Kong took effect in that place.” 

15.  In addition, section 29AF imposes a duty on the court to consider whether Hong Kong is the appropriate venue for the application:

“(1) Before making an order for financial relief, the court must consider whether in all the circumstances of the case it would be appropriate for the order to be made by a court in Hong Kong, and if the court is not satisfied that it would be appropriate, the court must dismiss the application.

(2) The court must in particular have regard to the following matters –

(a) the connection that the parties to the marriage have with Hong Kong;

(b) the connection that those parties have with the place where the marriage was dissolved or annulled or where they were legally separated;

(c) the connection that those parties have with any other place outside Hong Kong;

(d) any financial benefit that the applicant or a child of the family has received, or is likely to receive, in consequence of the divorce, annulment or legal separation, by virtue of any agreement or the operation of the law of a place outside Hong Kong;

(e) if an order has been made by a competent authority outside Hong Kong requiring the other party to the marriage to make any payment or transfer any property to, or for the benefit of, the applicant or a child of the family –

(i) the financial relief given by the order; and

(ii) the extent to which the order has been complied with or is likely to be complied with;

(f) any right that the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any place outside Hong Kong and, if the applicant has not exercised that right, the reason for that;

(g) the availability of any property in Hong Kong in respect of which an order for financial relief in favour of the applicant may be made;

(h) the extent to which any order for financial relief is likely to be enforceable;

(i) the length of time that has elapsed since the date of the divorce, annulment or legal separation.

16.  The leave application must also follow the procedure prescribed by Rule 103A of the Matrimonial Causes Rules (“MCR”) as follows:

(1)   An application for leave to apply for an order for financial relief under section 29AC of MPPO must be –

(a)   made ex parte by originating summons in Form27; and

(b)   supported by an affidavit by the applicant stating the facts relied on in support of the application with particular reference to the matters set out in section 29AF of that Ordinance.

(2)   The affidavit in support must give particulars of the judicial or other proceedings by means of which the marriage to which the applicant relates was dissolved or annulled, or by means of which the parties to the marriage were legally separated, and must state, so far as is known to the applicant –

(a)   the names of the parties to the marriage and the date and place of the marriage;

(b)   the occupation and residence of each of the parties to the marriage;

(c)   whether there are any living children of the family and, if so, the number of the children and each child’s full names (including surname) and the date of birth or, if it be the case, that he or she is over 18;

(d)   whether either party to the marriage has remarried;

(e)   the full particulars of each party’s property and income; and

(f)   the grounds on which it is alleged that the court has jurisdiction to entertain an application for an order for financial relief under section 29AB of the MPPO.   

17.  In C v H [2012], HKFLR 199, the very first case in which leave application was brought under section 29AC, Poon J (as he then was) very helpfully laid down the proper approach and guidance in his judgment for such leave application at p206:

“28. To obtain leave under section 29AC(2), the applicant must pass the threshold of satisfying the court that there is substantial ground for the making of the substantive application. Lord Collins explained the threshold in Agbaje v Agbaje thus:

’33. In the present context the principal object of the filter mechanism [that is, section 13 of Part III of the 1984 Act] is to prevent wholly unmeritorious claims being pursued to oppress or blackmail a former spouse. The threshold is not high, but is higher than ‘serious issue to be tried’ or ‘good arguable case’ found in other contexts. It is perhaps best expressed by saying that in the context ‘substantial’ means ‘solid’. …’

I hold that the same threshold applies to section 29AC of Part IIA.

29. The applicant bears the burden of meeting the threshold: Z vZ (foreign divorce: financial provision) [1992] 2 FCR 152. In discharging the burden, the applicant must present before the court all the relevant facts in support. And the court will consider all the circumstances of the case to see if the burden is discharged. In this connection I wish to mention three points.

30. First, the applicant must satisfy one of the three formal jurisdictional requirements in section 29AE. This is obvious, if none of those formal requirements is satisfied, the court simply does not have jurisdiction to entertain the substantive application for financial relief. It would be clearly wrong for the court to grant leave.

31. Second, the applicant must also satisfy the court that provisionally it would be appropriate for the order to be made by a court in Hong Kong under section 29AF. This point needs further explanation.

32. Under section 29AF(1), the court is under a duty to consider at the substantive hearing whether Hong Kong is the appropriate venue for the application for financial relief. The English courts have consistently taken into account the criteria set out in section 16 of the 1984 Act (the English equivalent of section 29AF of Part IIA) and the relevant circumstances in considering leave. As explained in Rayden and Jackson on Divorce and Family Matters, 18^th Edition, para 26.10:

‘The duty imposed under the MFPA 1984, s 16 to consider at the substantive hearing whether England or Wales is the appropriate venue for an application for financial relief is a matter for consideration at the leave stage. If on the application for leave to apply it is clear that if leave were given the application must founder at the first hurdle of s 16(1), then it would clearly be wrong for the court to grant leave to apply in the first instance.’

33. At the leave stage, the court cannot and will not come to a definitive view if Hong Kong is the appropriate venue. Therefore it should be sufficient if the applicant can establish, provisionally, that Hong Kong is the appropriate venue in order to pass the threshold for obtaining leave.

34. Now, in considering section 29AF(1), the court is required to have regard to the factors listed in section 29AF(2). And many of the factors are common with those which would be relevant in a forum non conveniens inquiry. Before Agbaje v Abaje, when considering the section 16(2) factors in the 1984 Act, the English authorities had demonstrated a consistent approach of refusing leave where a foreign court was, or had been, seized of the matter on the ground that comity required that foreign orders should be recognized and respected and forum shopping should be discouraged: see Rayden, supra, para 26.11. This is no longer the law after Agbaje v Agbaje, which held that the forum conveniens and stay principles are not engaged in Part III cases. As Lord Collins expounded:

’49. But the forum non conveniens principles were developed to deal with cases in which it was necessary to decide, which of two jurisdictions was the appropriate one in which proceedings were to be brought. Section 16 does not impose a statutory forum non conveniens test. It does not require the court to determine the only appropriate forum where the case may be tried more suitably for the interests of the parties and the ends of justice. No choice between jurisdiction is involved. The whole basis of Part III is that it may be appropriate for two jurisdictions to be involved, one for the divorce and one for ancillary relief.

50 The next question is whether principles of comity will add anything useful to the analysis. ……

51 First, comity is sometimes used not simply in the sense of courtesy to foreign states and their courts, but also in the sense of rules of public international law which establish the proper limits of national legislative jurisdiction in cases involving a foreign element. In that sense it will be contrary to comity for United Kingdom legislation to apply in a situation involving a foreign country when the United Kingdom has no reasonable relationship with the situation. This is not the case here. There is nothing internationally objectionable in legislation which gives a court power to order financial provision notwithstanding a foreign decree of divorce, whether or not the foreign court has ordered financial provision, provided that the forum has an appropriate connection with the parties or their property. The whole point of the factors in section 16(2) is to enable the court to weigh the connections of England against the connections with the foreign jurisdiction so as to ensure that there is no improper conflict with the foreign jurisdiction. That is why in Holmes v Holmes [1989] Fam 47, 53, Purchas LJ was right to note that section 16 reflected the principles of comity as between competent courts.’

35. Third, while Part IIA aims at remitting the presence of a failure in a foreign jurisdiction to afford appropriate financial relief, the statutory test does not require the applicant to prove hardship, injustice or exceptionality as a pre-condition in order to obtain leave: Jordan v Jordan [2001] 1 WLR 210; approved in Agbaje v Agbaje, per Lord Collins at paras.60-64. Such factors, if present, are cogently relevant to the court’s consideration for granting leave. Their absence is however not fatal. But it does not mean that whenever a spouse is dissatisfied with the financial provision obtained in a foreign jurisdiction, he or she should be encouraged to apply for further financial relief under Part IIA. Part IIA does not give the spouse a free ticket to do so. He or she should take heed of what Lord Collins said in Agbaje v Agbaje:

’65. But equally it is not the intention of the legislation in England and Wales to allow a simple ‘top-up’ of the foreign award so as to equate with an English award. …’

His Lordship then went on to explain the point by distinguishing Part III of the 1984 Act from the Scottish provisions and observed:

’70 … Instead a more flexible approach was deliberately adopted. There will be some cases, with a strong English connection, where it would be appropriate to ask what provision would have been made had the divorce been granted in England. There will be other cases where the connection is not strong and a spouse has received adequate provision from the foreign court. Then it will not be appropriate for Part III to be used simply as a tool to ‘top-up’ that provision to that she would have received in an English divorce.’

He later reiterated:

’72 It is the purpose of Part III to allow a spouse (usually, in current conditions, the wife) with some English connections to make an application in England to take advantage of what may well be the more generous approach in England to financial provision, particularly in so-called big-money cases. There is no condition of exceptionality for the purpose of section 16, but it will not usually be a case for an order under Part III where the wife had a right to apply for financial relief under the foreign law, and an award was made in the foreign country. In such cases mere disparity between that award and what would be awarded on an English divorce will certainly be insufficient to trigger the application of Part III. …’

36. Any intended applicant should firmly bear these judicial observations in mind and think through his or her case very carefully before commencing proceedings under Part IIA.”

18.  It was with these guidance in mind that I considered and dismissed the leave application on the following basis and reasons.

Discussion& Application

Jurisdiction

19.  First, as far as the jurisdictional requirements under section 29AE is concerned, the jurisdiction of a Part IIA application can be established on either party’s domicile, habitual residence, or substantial connection in Hong Kong, either at the time of the Part IIA application or the date of the divorce took place in the foreign jurisdiction.

20.  As stated in paragraph 15 of W’s 1^st Affirmation, W relies on substantial connection to Hong Kong as on the date of the parties’ divorce took effect (i.e. 28^th July 2014) in Guiyang Shi, PRC.

21.  W’s case is that on the date the divorce took effect in Guiyang Shi PRC, H, the daughter and W had been approved to enter and remain in Hong Kong under the CIES, and the son had right of abode in Hong Kong.  In addition, the CIES investment valued at HK$10 million was effectively located in Hong Kong which was the subject of W substantive application.  Further, H has one bank account at HSBC to receive dividends from the CIES investment whilst W had one Bank of China (Hong Kong) bank account for the purpose of insurance payments.

22.  Her counsel submitted that W and H have substantial connection with Hong Kong by having the CIES investment in Hong Kong which is the subject of W’s substantive application which satisfied the jurisdictional requirements under section 29AE(c).

23.  My view is that a person can have substantial connection with more than one jurisdiction over the same period of time, this issue had been considered in the Court of First Instance in the earlier case of S v. S [2006] 3 HKLRD 751 when Hon Hartmann J (as he then was) considered the statutory provisions under section 3(c) of the Matrimonial Causes Ordinance, Cap.179 which bestowed jurisdiction on our courts when the petitioner has a “substantial connection” with Hong Kong. Quoting his Lordship’s Judgment at paragraph 13 :-

“13. In my view, when considering the meaning and extent of the phrase, it is important to recognize that the legislature saw fit to qualify it with the indefinite article ‘a’. It is not therefore necessary for a petitioner to demonstrate that his substantial connection with Hong Kong is the only substantial connection he has with any jurisdiction or that his connection with Hong Kong is the most substantial connection he has with any jurisdiction. No exercise of comparisons is required. It is sufficient if he demonstrates that, among others perhaps, he has ‘a’ substantial connection with Hong Kong.”

24.  Adopting the approach laid down in the C v. H case, the first issue to be considered is whether W can satisfy the requirements of section 29AE (c) that she was substantially connected with Hong Kong either at the time of this application or at the time when the divorce took effect (i.e. 28^th July 2014).

25.  In the S v. S case (supra), the term “substantial connection” was considered by his Lordship which I find useful.  Quoting the relevant passages on “substantial connection” in his Lordship’s Judgment as follows :-

“15. But, of course, if the Hong Kong courts are to exercise jurisdiction, it must be shown on a balance of probabilities that a petitioner not merely has a connection with Hong Kong but that, bearing in mind the scope and purpose of the Ordinance, the connection is ‘substantial’.

16. ‘Substantial’ is a plan enough English adjective. We all understand what it means – at least in substance (if I may be excused the play on words). I say that because it is not a word that lends itself to precise definition or from which precise deductions can be drawn. To say, for example, that ‘there has been a substantial increase in expenditure’ does not of itself allow for a calculation in numerative terms of the exact increase. It is a statement to the effect that it is certainly more than a little but less than great. It defines, however, a significant increase, one that is weighty or sizeable.

17. It speaks for itself, I think, that an artificially constructed connection will not be a substantial one. A connection must be real in the sense, for example, that it has not been engineered for temporary tactical advantage. It was not the intention of the legislature (in passing s.3(c) into law) to create a convenient off-shore divorce jurisdiction. As it has been said in an earlier authority, the subsection is not intended for ‘birds of passage’.

18. As the jurisdiction looks to the determination of matrimonial proceedings, a material factor will be whether both parties to the marriage have lived in Hong Kong and, if so, how long they have lived here as man and wife. But those factors will not necessarily be determinative. In each case the factors to be considered will be different and the weight to be given to them, in the factual context of each case, will no doubt be different too.

19. In summary, whether – for the purposes of the Ordinance – a connection is substantial or not can only be determined on the basis of a broad objective assessment, taking all relevant factors into account.”

26.  I find the above passages extremely useful when considering the term “substantial connection”.  Although his Lordship in that case was considering jurisdictional issue under the Matrimonial Causes Ordinance, Cap.179 for commencement of divorce proceedings in Hong Kong, I see no reason why the term “substantial connection” should be given a different meaning in the context of Part IIA of the MPPO, Cap.192, which likewise bestows jurisdiction on commencement of financial reliefs proceedings.  I do not believe the legislative intent is to give a different interpretation.  Thus, I will adopt and follow his Lordship’s views on the meaning of “substantial connection” when considering section 29AE(c) of the MPPO.

27.  The test for demonstrating “a substantial connection” is also well-established in many authorities.  The modern approach has been comprehensively laid down by the Court of Appeal in ZC v. CN  [2014] 5 HKLRD 43 at paragraphs 9 to 12.  The most relevant principles to the present application are summarized as follows :-

(i) The expression “substantial connection” is to be given its natural and ordinary meaning together with its purpose and context.  One shall consider whether a person had “a connection” and then decide whether it is a ‘substantial one”.  The determination of such issue is a question of fact by looking at all surrounding factors (paras 9.1 and 9.4).

(ii) When read together with subsection (a) and (b), while it can be said that the alternative limb of substantial connection” is wider than the principle of “domicile” and/or “habitual residence”, such requirement cannot be interpreted so loosely to encourage “residence of passage” or “divorce of convenience”.  The threshold of proof cannot be said to be as low as the case like parties had never lived or worked in Hong Kong throughout their entire marriage, but only established their ties with Hong Kong through their real estate investment and bank accounts, and their frequent daily visits to Hong Kong (paras 9.9 and 11.4).

(iii) In establishing connection, there must be physical presence in Hong Kong, which is considered as the “ground rock” of invoking the court’s jurisdiction.  But because of the requirement of “substantial”, the presence must not be of a “transitory nature”, otherwise it would encourage “fly-in, fly-out application (para 9.4).

(iv) The fact that a party has resident status which allows him or her to live here legally is only a factor to be taken into account. A person’s resident status, past pattern of life, frequency of visit to Hong Kong, length and purpose of stay, family/business/work/child’s study ties established in Hong Kong may be relevant factors to be considered (para 9.8).

(v) While a person may have “substantial connection” for more than one place, having a “substantial connection” elsewhere would “contrast” (and hence diminish) his/her nexus of connection with Hong Kong (para 9.8).

(vi) The fact that a party holds HKID card, owns landed property in Hong Kong, holding local bank accounts and/or occasional visits to receive medical treatment does not necessarily establish substantial connection with Hong Kong.  It is not uncommon for someone in this modern age of globalisation to hold foreign properties, bank accounts and companies, particularly in light of the close proximity between Hong Kong and the Mainland borders to Hong Kong.(paras 11.1 and 11.3).   

28.  W’s case is that on the date the divorce took effect in Guiyang Shi PRC, the factors for supporting substantial connection are stated in paragraph 15 of her 1^st Affirmation therein, namely :-

a.   H, W and the daughter had been approved to enter and remain in Hong Kong under the CIES;

b.   the son had the right of abode in Hong Kong;

c.   CIES investment valued at HK$10 million was located in Hong Kong;

d.   H had one bank account at HSBC to receive dividends from the CIES investment, and

e.   W had one Bank of China (Hong Kong) bank account for the purpose of insurance payments.

29.  Factors under (a), (b), (c), (d) and (e) in my view, only show a connection with Hong Kong.   There ought to be some other existing factors which upgrade the level of connection to be a substantial one.

30.  Paragraph 5 of the 1^st Affirmation of W stated that in early 2012, H made an application to enter and remain in Hong Kong under CIES, and under paragraph 15 of the said affirmation, she stated that on the date of the divorce took effect, H and W had been approved to enter and remain in Hong Kong under CIES.

31.  Therefore factor (a) and (b), by itself is only giving the party resident status which allows him or her to live here legally, and this is only a factor to be taken into account.

32.  Without actually living here, what W and H had acquired as a result of CIES is only a resident status. Other than the resident status, W had not shown to my satisfaction that she had provided any details regarding the party’s past pattern of life, their frequency of visit to Hong Kong (if any), the length and purpose of stayin Hong Kong (if any),whether the party was engaged in business or work here (if any), whether the rest of the family was here and whether a home had been established here and whether the children was at school here so as to justify a substantial connection for W or H at the time of this application or at the time when the divorce took effect (i.e. 28^th July 2014).

33.  Regarding factor (c), her counsel relied on L v W (FCMP 178/2013) and also an example quoted in CMU v WPM (FCMP 59/2012) at paragraph 24 and submitted that W and H have substantial connection with Hong Kong by having CIES investment in Hong Kong which is the subject of W’s substantive application.

34.  My view is that the example quoted in CMU v WPM (FCMP 59/2012) is only an illustration of substantial connection that required consideration of other subsisting factual circumstances.Ultimately, each case will depend on its own facts, and the said two cases cited by her counsel are not binding to this court in any event.

35.  For factor (d) and (e), it is not sufficient to establish substantial connection where the parties had never lived or worked in Hong Kong throughout their entire marriage, but only established their ties with Hong Kong through their real estate investment and bank accounts.

36.  I noticed that W is still living in mainland China as her Guiyang Shi address was used in all her supporting Affirmations. 

37.  Considering all the available evidence and circumstances, W hadnot shown to my satisfaction that either she or H had a substantial connection with Hong Kong whether at the date of this application or the date of the parties’ divorce took effect (i.e. 28^th July 2014) in Guiyang Shi, PRC so as to give the Hong Kong courts jurisdiction to entertain her application under Part IIA of MPPO. Accordingly, it is my finding that the Hong Kong courts do not have jurisdiction.

Appropriate Venue

38.  Had I been wrong in finding against W on the jurisdictional requirement, W would, in my view, also fail for the reason of not being able to establish that Hong Kong is the appropriate venue.  This is indeed the second limb requirement of the threshold laid down in the C v. H case.

39.  The financial reliefs intended to be sought by W apart from CIES investment, the rest of the matrimonial assets all situated in the PRC.

40.  Quoting the passages in the C v. H case on the issue of appropriate venue :-

“33. At the leave stage, the court cannot and will not come to a definitive view if Hong Kong is the appropriate venue. Therefore it should be sufficient if the applicant can establish, provisionally, that Hong Kong is the appropriate venue in order to pass the threshold for obtaining leave.

34. Now, in considering section 29AF(1), the court is required to have regard to the factors listed in section 29AF(2). And many of the factors are common with those which would be relevant in a forum non conveniens inquiry…………

35. Third, while Part IIA aims at remitting the presence of a failure in a foreign jurisdiction to afford appropriate financial relief, the statutory test does not require the applicant to prove hardship, injustice or exceptionality as a pre-condition in order to obtain leave……….. Such factors, if present, are cogently relevant to the court’s consideration for granting leave. Their absence is however not fatal. But it does not mean that whenever a spouse is dissatisfied with the financial provision obtained in a foreign jurisdiction, he or she should be encouraged to apply for further financial relief under Part IIA. Part IIA does not give the spouse a free ticket to do so…….

36. Any intended applicant should firmly bear these judicial observations in mind and think through his or her case very carefully before commencing proceedings under Part IIA.”

41.  W has also not provisionally demonstrated to my satisfaction that Hong Kong is the appropriate venue for an order for financial relief to be made by a court in Hong Kong under section 29AF(2) having regard in particularly to those matters stipulated therein, conveniently adopting the same approach of His Lordship in C v H as follows:

(1)   29AF(2)(a) - Connection with Hong Kong:

I have decided against W on W’s and H’s connection with Hong Kong in the preceding paragraphs. I will not repeat again.   

(2)   29AF(2)(b) - Connection with Guizhou Province PRC:

It is not disputed by W’s counsel that both W and H also have substantial connection with Guizhou Province in the PRC.

In the Chinese divorce settlement agreement, W and H had set out 7 matrimonial assets for distribution and out of these 7 assets, only 1 asset was located in Hong Kong, namely CIES investment, and the rest of them were all located in the PRC.

W further stated that H had in breach of clause 3(6) of the said Chinese divorce settlement agreement. My view is that as both H and W has not exhausted all their legal challenges in the PRC, either of them would have further connection with Guizhou Province arising out of the divorce or related litigation.

(3)   29AF(2)(c) - Connection with other place:

There is no evidence to suggest that either party has any connection with anywhere else.

(4)   29AF(2)(d) - Any financial benefit obtained or obtainable outside Hong Kong:

W’s counsel submitted that W is entitled to apply to the Guiyang People’s court to enforce the terms of the Chinese divorce settlement agreement.

One of the arguments advanced by her counsel is that if the case is tried in the PRC court, W would suffer serious juridical disadvantage since the Hong Kong court would adopt the Edgar v Edgar approach to try to uphold the Chinese divorce settlement agreement and allow the parties to depart from the agreement only if a party demonstrates good and substantial grounds for so doing, while the PRC court may simply enforce the terms of the agreement without the discretion inherent in the approach adopted by the Hong Kong court.

On the third limb of the threshold as laid down in paragraph 35 of the C v H case, my view is that one of the reasons for W coming to Hong Kong is simply forum shopping. 

(5)   29AF(2)(e)– Any order by a foreign authority:

As noted above other than dissolving the marriage, no pending litigation had been instituted in the PRC by either H or W.

(6)   29AF(2)(f)– Any right to apply for financial relief outside Hong Kong:

The PRC Courts had not refused to deal with any Hong Kong assets or the financial relief for W.

My view is that W had not exhausted all avenues of litigation in the PRC.

(7)   29AF(2)(g)– Availability of property in Hong Kong:

Assets in Hong Kong are of substantial value, and that H also has bank accounts in Hong Kong for receiving dividends from CIES investment.

(8)   29AF(2)(h)– Enforceability of any financial order:

There is no question of enforcing any order for financial relief in Hong Kong for CIES investment only, as CIES investment is located within the jurisdiction.

(9)   29AF(2)(i)– Lapse of time since divorce:

The lapse of time since the divorce on 28^th July 2014 up to the date of this application is more than 2 years.

W stated that because of significant change in circumstances occurred in July 2016 when H remarried and W only discovered the breach of the Chinese divorce settlement agreement on or about 27^th December 2016, I accept that there is no delay when bringing this application on 12^th April 2017.

42.  Considering all the circumstances and relevant factors under section 29AF(2), including the fact that the majority of the matrimonail assets are situated in the PRC, I will find against W for not being able to establish Hong Kong is, provisionally, the appropriate venue.

43.  It is for all these reasons that I dismiss the ex parte application made by W dated 12^th April 2017.

Orders

44.  I now make the following Orders :

(1)   W’ Summons dated 12^th April 2017 be dismissed;

(2)   There be no order as to costs.