QMY v. GSS

CACV 68/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 68 OF 2014

(ON APPEAL FROM FCMP NO. 147 OF 2012)

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REASONS FOR JUDGMENT
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Hon Lam VP :

1.  I agree with the Reasons for Judgment of Cheung JA.

Hon Cheung JA :

I. The appeal

2.  This appeal is about the jurisdiction of the Family Court over a child who is not habitually residing in or present in Hong Kong at the time of the commencement of proceedings by her parent under the Guardianship of Minors Ordinance (‘GMO’) (Cap. 13).

II. Background

1) The parties

3.1  G (‘the child’) is the daughter of the applicant mother (‘the mother’) and the respondent father (‘the father’). The child is now 8 years old.  She was born in Hong Kong.  It is common ground that she is a permanent resident of Hong Kong.  At the time of her birth, her parents were not married.  In fact the father was already married and has a family of his own in Hong Kong.  He is a Hong Kong permanent resident but normally resides and works in the Mainland.  The mother is a Mainland resident.  The parents met and developed a relationship in the Mainland but chose to give birth to the child in Hong Kong.  Shortly after the birth of the child the parents separated.  The mother and the child returned to reside in the Mainland.  The mother had previously resided in Siming District (思明區), Xiamen (廈門), Fujian (福建).  The mother and child now reside in Guangzhou (廣州).

2) The proceedings

3.2  In July 2012, the mother invoked the jurisdiction of the Hong Kong Court and applied under section 10 of the GMO (‘the Hong Kong proceedings’) to claim maintenance for the child against the father. 

3.3  Within one month of the commencement of the Hong Kong proceedings, the father also commenced proceedings in the Mainland in Siming District (‘the Siming proceedings’) seeking custody of the child and payment of maintenance for the child by the mother. 

3.4  On 24 September 2012 the father issued a summons in the Hong Kong proceedings applying to stay the Hong Kong proceedings on the ground of forum non conveniens in favour of the Mainland Court.  In January 2013, the Siming People’s Court dismissed the father’s claim. Shortly after the dismissal of the Siming proceedings, the father amended the summons in the Hong Kong proceedings seeking to dismiss the Hong Kong proceedings on the ground that the Hong Kong Court has no jurisdiction to deal with the mother’s application. 

3.5  In March 2013 the father lodged an appeal to the Intermediate People’s Court of Xiamen (‘the Xiamen Court’) against the decision of the Siming Court and later further amended his summons in the Hong Kong proceedings by specifying the Siming Court as the appropriate Court in the forum non conveniens application.

3.6  The jurisdictional challenge by the father in the Hong Kong proceedings was dealt with by Deputy District Judge Ivan Wong on 25 April 2013 and he dismissed the father’s application on 27 May 2013.

3.7  The Xiamen Court dismissed the father’s appeal in October 2013.

3.8  The father then on 28 November 2013 commenced another proceedings in the Mainland, this time in the Tianhe District (天河區), Guangzhou City (廣州市) for custody of the child and payment of maintenance for the child by the wife. In March 2014, the Tianhe Court ordered custody of the child to be given to the mother, and ordered the father to pay RMB 10,000 per month for the maintenance of the child (‘the Tianhe judgment’).

3.9  The father appealed against the Tianhe judgment to the Intermediate People’s Court in Guangzhou.  The appeal was dismissed although the Tianhe judgment was varied by removing the custody order in favour of the mother and specifying the commencement date of the maintenance order.

3.10  The father appealed against the judgment of Judge Wong pursuant to leave granted by a single judge of this Court.  At the first hearing of this appeal the father sought leave to adduce as fresh evidence for his appeal, the judgment of the Guangzhou Court and to further amend his summons to stay by specifying the Guangzhou Court to be the appropriate court to address the issue of maintenance.  The father had previously sought to amend the summons in a similar manner before Judge Wong after the dismissal of his jurisdictional challenge which was refused.  The father did not appeal against the refusal.

3.11  At the first hearing this Court directed the parties to make further written submissions on jurisdiction and to file expert evidence on Mainland law.

3.12  At the resumed hearing of the appeal, upon hearing the parties, we allowed the father’s appeal, set aside the order below and dismissed the mother’s application for maintenance.  I now give my reasons.

III. Guardianship of Minors Ordinance

4.1  Section 10(1) of the GMO provides that the Court may, on the application of either of the parents of a minor, make orders regarding the custody of and right of access to the child by his or her parents.  Section 10(2) enables the Court to make orders for the maintenance of the child by the parents by way of lump sum, periodical payments, and secured periodical payments.  The Court is also empowered to order transfer of properties or settlement of properties for the benefit of the minor.  The application may be made by a person with whom, whether by a section 10(1) order or otherwise, ‘custody of the minor lies at law’. 

4.2  Section 25 of the GMO, under the heading ‘Saving for powers of the Court of First Instance’ provides that :

‘ Nothing in this Ordinance shall restrict or affect the jurisdiction of the Court of First Instance to appoint or remove guardians or otherwise in respect of minors.’

4.3  Section 26 of the GMO further provides that :

‘ The jurisdiction conferred on any court by this Ordinance shall be exercisable notwithstanding that any party to the proceedings is not domiciled in Hong Kong.’

IV.  The father’s case below

5.  In the Court below the father’s challenge of the Court’s jurisdiction under the GMO was that the child was not an ordinary or habitual resident of Hong Kong nor physically present in Hong Kong and the GMO does not have extraterritorial jurisdiction.

V.  Judge Wong’s view

6.  Judge Wong rejected this argument.  He recognized the extraterritorial limitation of the Court but he held that the limitation was directed towards the parties of the application but not the child.  Although the mother was not an ordinary resident of Hong Kong, this was not a bar because the GMO expressly provides that its jurisdiction may be invoked notwithstanding the parties are not domiciled here and on that basis it would be absurd to require the child to be a resident or present in Hong Kong.  He held that the mother was entitled to invoke the GMO ‘as of right’.  Judge Wong further held that the child is within the class of children intended to be covered by the GMO because she was born in Hong Kong, is a Chinese citizen with right of abode in Hong Kong, and one of her parents, namely the father, is a Hong Kong permanent resident and domiciled in Hong Kong.

VI. Jurisdiction under the GMO

1) Statutory construction

7.1  The issue here is whether the mother can invoke the jurisdiction of the Hong Kong Court under GMO when she is not an ordinary or habitual resident (there is no distinction between the two concepts) here and when the child is also not residing or present here.  This is a matter of statutory construction.   It is by now well-established that in construing the meaning of a statute, the Court does not simply look at the ordinary meaning of the words used but is required to adopt a purposive approach by considering the context and background of the legislation.

2) Mother’s presence in Hong Kong

7.2  Under the GMO, the parties who can invoke the jurisdiction of the Court are the parents of the child.  This is made clear by section 10(1) and 10(2).  Although the mother has not applied for a section 10(1) custody/access order, she being the natural mother of the child certainly comes within the category of person with whom ‘custody of the minor lies at law’.  One then looks at the wording of the GMO to see if there is any restriction on a non-resident to invoke the Hong Kong jurisdiction.  Unlike the Matrimonial Causes Ordinance (Cap. 179) which restricts the right to petition for divorce in Hong Kong to those who are domiciled here or ordinarily residing here or has a substantial connection here, there is no such restriction in the GMO.  On the contrary, section 25 expressly provides that the Court’s jurisdiction shall be exercised notwithstanding that any party to the proceedings is not domiciled in Hong Kong.  This must apply to the mother who is not domiciled here.

3) Child’s presence and territorial limits

7.3  Then we come to the question of whether the child must be an ordinary resident here in Hong Kong or present here before the Court’s jurisdiction can be invoked.  There is of course no express provision in the GMO on this point.  However, Mr Kenny Lin and Mr Lincoln Cheung, counsel for the father, relied on the general principle that legislation is generally taken not to apply to foreigners and foreign matters outside the territory to which it extends.

7.4  In my view this principle is so well-established that it can hardly be challenged.  The position is summarized in Section 130 of Bennion on Statutory Interpretation (6^th Ed) at page 351,

‘ Unless the contrary intention appears, and subject to any relevant rules of private international law, an enactment is taken not to apply to foreigners and foreign matters outside the territory to which it extends.’

7.5  Thus in AB & Co, Re [1900] 1 QB 541 at 544, Lindley MR when dealing with the argument that the Court had power to bankrupt a foreigner resident abroad, held that :

‘ Unless Parliament has conferred on the court that power in language which is unmistakeable, the court is not to assume that Parliament intended to do that which might seriously affect foreigners who are not resident here and might give offence to foreign governments.’

7.6  The extra-territorial limitation is based on two concepts, namely, first, international comity and second, parliament does not legislate when it has no effective power of enforcement : see Gold Star Publications Ltd v. Director of Public Prosecutions [1981] 1 WLR 732 at 737 per Lord Simon of Glaisdale.  This is affirmed recently by Lord Hoffmann in Lawson v SercoLtd [2006] ICR 250 (HL) that :

‘ 6 The general principle of construction is, of course, that legislation is prima facie territorial. The United Kingdom rarely purports to legislate for the whole world. Some international crimes, like torture, are an exception. But usually such an exorbitant exercise of legislative power would be both ineffectual and contrary to the comity of nations.’

7.7  It is, of course, recognized that in the present case, the mother’s application is not directed at a father who is not residing in Hong Kong and for which leave to serve the proceedings on him out of the jurisdiction may be required.  The father in this case is a Hong Kong resident and he has been properly served in Hong Kong.  Hence the principle on extra-territorial limit of local legislation is not applicable on the facts of the case to the position of the father.  However, this does not resolve the question whether the child must be habitually resident or physically present in Hong Kong at the time of the commencement of the proceedings.  She is after all the subject matter of the application.

7.8  Mr Lin referred to In re Dulles’ Settlement (No. 2) [1951] Ch 842 where Denning LJ at 852 to 853 stated that :

‘ I take it to be clear that, if a child is within the jurisdiction of the Court of Chancery, it has power to order custody to the mother and maintenance against the father under the Guardianship of Infants Acts, even if the father is resident outside the jurisdiction; but it is essential that the father should be a party to the proceedings and should either be served here or be served out of the jurisdiction under Ord. 11, or voluntarily submit to the jurisdiction. None of that has been done.’ (emphasis added.)

7.9  Mr Lin also referred on the statement of this Court in LN v SCCM (Forum Non Conveniens) [2013] HKFLR 358 at 360 that :

‘ 29. In jurisdictional challenges which may involve children, their interest is a matter of high importance: Re V (Forum Conveniens) [2005] 1 FLR 718. I am prepared to proceed on the basis that, in general, the jurisdiction where the children habitually reside should try the matter. In the absence of express statutory provisions, this is a matter of good common sense rather than a recognized custom or convention.’

7.10  These cases would not assist Mr Lin because there were no actual discussions of the issue that faces the Court in this case. 

7.11  It is a difficult question whether under the GMO the child must also be an ordinary resident of Hong Kong or physically present in Hong Kong.  In the absence of restrictions, I am prepared to proceed on the basis that the Court has such jurisdiction.  However, it is not necessary for the purpose of this appeal to give a determinative answer because as can be seen from the following discussion, concurrent with the jurisdiction under the GMO, the Hong Kong Courts also have inherent jurisdiction over children which may be exercised beyond its territorial limits.  At the same time there is a further issue whether, if the jurisdiction exists, it should be exercised at all, a topic I will address later in this judgment.

VII.  Inherent Jurisdiction

1) High Court Ordinance

8.1  Section 12(2) of the High Court Ordinance (Cap. 4) provides that the civil jurisdiction of the Court of First Instance of the Hong Kong High Court consists of —

(a) original jurisdiction and authority of a like nature and extent as that held and exercised by the Chancery, Family and Queen’s Bench Divisions of the High Court of Justice in England; and

(b) any other jurisdiction, whether original or appellate jurisdiction, conferred on it by any law.

2) The English authorities

8.2  It can hardly be challenged that the Hong Kong Courts have inherent jurisdiction over children both before and after the resumption of exercise of sovereignty by China on 1 July 1997.  The debate here is whether the original basis of the inherent jurisdiction can be retained in the new order.

8.3  The English authorities show that under the inherent jurisdiction of the High Court, jurisdiction over a child may be exercised if the child is a British national.  This is based on the concept of allegiance by the British subjects to the crown, namely, the child owes allegiance to the Crown and in return the Crown has a protective or parens patriae jurisdiction over the child wherever he is.  Lord Cranworth LC stated in Hope v Hope (1854) 4 De GM & G 328 at 344-345, (1854) 43 ER 534 at 540-541:

‘ The jurisdiction of this Court, which is entrusted to the holder of the Great Seal as the representative of the Crown, with regard to the custody of infants rests upon this ground, that it is the interest of the State and of the Sovereign that children should be properly brought up and educated; and according to the principle of our law, the Sovereign, as parens patriae, is bound to look to the maintenance and education (as far as it has the means of judging) of all his subjects.’

8.4  A modern affirmation of this jurisdiction was made by Lord Denning MR in Re P (G E) (an infant) [1965] Ch 568 at 582 :

‘ The court here always retains a jurisdiction over a British subject wherever he may be, though it will only exercise it abroad where the circumstances clearly warrant it: see [Hope v Hope (1854) 4 De GM & G 328, Re Willoughby (an infant) (1885) 30 Ch D 324 and R v Sandbach Justices, ex p Smith [1950] 2 All ER 781, [1951] 1 KB 62].’

See also Harben v Harben [1957] 1 WLR 261 per Sachs J at 264.

8.5  Thorpe LJ in Al Habtoor v. Fotheringham [2001] 1 FCR 385, however, cautioned that the Court should be ‘extremely circumspect’ and ‘must refrain from exhorbitant jurisdictional claims founded on nationality’ over a child who was neither habitually resident nor present here, because such claims were outdated, eccentricand liable to put at risk the development of understanding and co-operation between nations.  [paragraph 42]

8.6  These cases were reviewed by the United Kingdom Supreme Court in Re A (Children) (jurisdiction : return of child) [2014] 1 All ER 827.  Lady Hale DP at [63] recognized the existence of the inherent jurisdiction.  The Court there addressed the issue whether the English High Court had jurisdiction to order the ‘return’ from Pakistan to England of a small child H who had never lived in or even been to England.  The parents had previously come from Pakistan to live in England.  They later lived in Pakistan although the mother had always intended to return to England.  Eventually she did and applied to make her four children (three were born in England and H was born in Pakistan) wards of Court and applied for their return.  The Court had first to consider whether the husband was habitually present in England which was an express condition to invoke the Court’s jurisdiction to make an order under the Family Law Act 1986.  The Supreme Court held that habitual residence is a question of fact and not a legal concept such as domicile and habitual residence.  It corresponds to the place which reflects some degree of integration by the child in a social and family environment.  Four of the Judges held that presence was a necessary precursor to residence and that a child could not be integrated into the social environment of a place to which his primary carer had never taken him.  Lord Hughes, by contrast, would have held that in these circumstances the child acquired the habitual residence of his mother.

8.7  However, as the trial judge had not considered the inherent jurisdiction point, the Supreme Court remitted the case to the trial judge for her to consider whether to exercise the Court’s inherent jurisdiction of the Court.

8.8  The concept of ‘British subjects pledging allegiance to the British Crown’ which is the original basis of the inherent jurisdiction clearly has no place in Hong Kong after 1997 and this is accepted by Mr  Robert Pang  SC and Mr Eugene Yim for the mother. 

3) The father’s arguments

8.9  Mr Pang, however, argued that :

(1) Article 8 of the Basic Law ensures that the laws previously in force in Hong Kong shall be maintained.

(2) Section 2A(1) of the Interpretation and General Clauses Ordinance (Cap. 1) also provides :–

‘ All laws previously in force shall be construed with such modifications, adaptations, limitations and exceptions as may be necessary so as not to contravene the Basic Law and to bring them into conformity with the status of Hong Kong as a Special Administrative Region of the People’s Republic of China.’

(3) In place of such concepts as ‘British subjects’ or ‘British nationals’, Article 24 of the Basic Law introduces the notion of ‘residents of Hong Kong Special Administrative Region’ – which ‘shall include permanent residents and non-permanent residents’.

(4) ‘Permanent residents of HKSAR’ refer to the six categories of persons set out under the second paragraph of Article 24, and it is stated that these persons shall have the right of abode in HKSAR and shall be qualified to obtain permanent identity cards.

(5) Article 25 of the Basic Law makes it clear that all Hong Kong residents (including permanent residents of HKSAR) shall be equal before the law.

(6) Articles 27 to 39 of the Basic Law ensure that all ‘Hong Kong residents’ (with no distinction being made between permanent and non-permanent residents) enjoy the same fundamental human rights.

(7) In other words, irrespective of where they live, all Hong Kong residents should enjoy the same protection under the laws of Hong Kong.

(8) The child in this case is a Hong Kong permanent resident.  Since the inherent jurisdiction of the English Court over children who are British subjects is unlimited, it follows that the jurisdiction of the Hong Kong Court over children who are Hong Kong residents (and in this case, a permanent resident) must also be unlimited.

4) My view on inherent jurisdiction of the High Court

8.10  In my view, it is difficult to transpose the concept of jurisdiction founded on nationality to one to be founded, not on the same basis of nationality, but on the status as a permanent resident of Hong Kong.  This is conceptually one step removed from the original basis of the jurisdiction.  However, it is not necessary to attempt to fill an old bottle with new wine by the transposition of different concepts of nationality and permanent residents.  This is because, irrespective of the original basis of the inherent jurisdiction, this jurisdiction is so well entrenched in Hong Kong in relation to children matters that one should proceed on the basis that in appropriate situations which involve a child who is a permanent resident of Hong Kong, the Court would step in and exercise its traditional protective role over the child even if he or she is not physically present in Hong Kong at the time of application.  An example given at the appeal is a Hong Kong family of Hong Kong permanent residents living in the Mainland; the parents died, leaving the child uncared for and living alone in the Mainland; the Hong Kong grandparent of the child then applies for his custody in Hong Kong.  In such a situation the Hong Kong Court would be most reluctant to decline jurisdiction simply because the child is not present in Hong Kong.  In my view it is unthinkable that the inherent jurisdiction over children which has been so well entrenched would suddenly disappear simply because of the change in 1997.  Any contrary view would leave too large a lacuna in the practice and operation of the family law.  As the matter now stands, I really do not see any justifiable basis to propound a disappearance of this jurisdiction.

5) Position of the Family Court

8.11  A point on inherent jurisdiction which was raised by the Court is that in this case the application by the mother was not commenced in the Court of First Instance of the High Court but in the Family Court.  We are concerned with the jurisdiction of the Family Court which is part of the District Court.  The Family Court was informally established without its own charter to deal with family matters. 

8.12  The Chief Justice’s Working Party onthe Review of Family Procedure Rules, Final Report, section 5 stated that :

‘ 28. At present, there is no statutory provision setting out the establishment, jurisdiction or constitution of the Family Court. Apart from the MCO, the MPPO and the MPSO, there are no clear provisions dealing with the monetary jurisdiction of the Family Court. Further, it has very limited inherent jurisdiction over children matters.’

8.13  The Final Report recommended that :

‘ 13. There should be a definition of ‘Family Court’ in the New Code [of procedural rules], setting out its jurisdiction, including the jurisdiction in children matters, and stating there are no monetary limits in any financial applications to which the New Code is to apply.’

8.14  From time to time there were brief discussions in the cases of the inherent jurisdiction of the District Court but none specifically on the topic raised in this appeal.  In view of the lack of submission by the parties in the present case, I will refrain from going into this topic.  The better view, however, is that the Family Court lacks such inherent jurisdiction.  But as will be discussed in the following paragraphs, even if the Family Court has such jurisdiction, this will not assist the mother in the present application.  When in doubt, parties in family matters should commence their cases in the High Court or transfer them from the Family Court to the High Court.

6) Distinction between existence of jurisdiction and  declining jurisdiction

8.15  A distinction must, however, be drawn on the difference between, on the one hand, the existence of jurisdiction and, on the other hand, the power of the Court to decline to exercise jurisdiction even if such jurisdiction exists.  This is quite different from the issue of whether the Hong Kong proceedings should be stayed by reason of forum non conveniens which is an alternative basis for the Hong Kong Court to decline jurisdiction.  Although the discussion is under the heading of inherent jurisdiction, it applies equally to jurisdiction under the GMO as well.

8.16  In my view, even if the Family Court has jurisdiction, this is not a proper case to exercise the jurisdiction.  I appreciate that in the present case because of the way the relief was sought by the father, the Judge only proceeded to consider whether he should exercise the jurisdiction under the ambit of forum non conveniens, but logically speaking, the exercise of the inherent jurisdiction should be separately considered first under the discussion on inherent jurisdiction.  As Lord Cranworth observed in Hope at page 541, there is often a confusion over the existence of jurisdiction and the exercise of the jurisdiction.  He said that :

‘ Therefore, it is putting the matter on a wrong footing to say, because the child is out of the jurisdiction, that the Court has no jurisdiction.’

8.17  Mr Pang argued for the exercise of the jurisdiction in favour of the mother because the parties specifically intended that the child should be born in Hong Kong, the father is in Hong Kong and he has indicated that he intends to bring the child to Hong Kong to be looked after by his own wife and the child is a Hong Kong permanent resident. 

8.18  My view is that the starting point is that the jurisdiction should be sparingly exercised where the child is not an ordinary resident or present here.  I have difficulties in accepting that these three matters are sufficient to call for the exercise of the jurisdiction when the child is not present in Hong Kong.  The historical fact that the parents had intended to give birth to the child in Hong Kong cannot be a proper basis for the Court to exercise its jurisdiction.  The idea that the child should be removed from her natural mother and taken care of by the father’s wife is a most unattractive idea.  This only leaves for consideration the third factor that the child is a permanent resident here.  But, apart from this, the child has no connection at all with Hong Kong.  She spends her time in the Mainland and this has been the position since her birth.  According to the Social Investigation Report, the mother has made plans to emigrate with the child to Canada which is further removed from Hong Kong than Guangzhou.  I agree with the view that the Court should be extremely circumspect in assuming any jurisdiction in relation to a child who is currently physically present in some other jurisdiction simply because of her residence status here.  This is certainly not a case where the welfare of the child is at risk if the Court declines to exercise jurisdiction.  Although any order made the Hong Kong Court may be enforced in Hong Kong where the father lives, the Court faces unfamiliar matters relevant to the child such as her living, education and medical expenses, especially in respect of her intended emigration to Canada in the future.  In addition to this, there is the policy consideration of comity of nations which in the present context means the separate systems of law between the Mainland and Hong Kong.  The Court below should have declined jurisdiction.

8.19  This being the case this Court accordingly allowed the father’s appeal and stayed the Hong Kong proceedings.

VIII.  Forum non conveniens

9.  As I have already held that the inherent jurisdiction should not be exercised in the present case, it is not necessary to consider the issue of forum non conveniens.

IX. Costs

10.  The Court will address the issue of the costs of the appeal and costs relating to the amendment and admission of new evidence which this Court had allowed upon receipt of written submissions from the parties.

Hon Yuen JA :

11.  I agree with the Reasons for Judgment given by Cheung JA.