CN v. YTW

FCMC 10370/2017

[2020] HKFC 146

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 10370 OF 2017

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D E C I S I O N
(Jurisdiction / Forum non conveniens)

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THE APPLICATION

1.  By amended summons filed on 12 September 2019, the Respondent applied to dismiss the Petitioner’s Amended Petition filed on 11 September 2019 for want of jurisdiction, or to stay these proceedings in favour of the People’s Court of Dongcheng District, Beijing, PRC (“the Beijing Court”) on the ground of forum non conveniens.

2.  With the consent of both parties, the Summons is dealt with by way of paper disposal.

THE PETITION AND AMENDED PETITION

3.  The Petitioner initially filed her Petition herein on 10 August 2017.  At that time, it was her case that Hong Kong court has jurisdiction over the Petition because she was domiciled in Hong Kong. 

4.  However, pursuant to leave granted on 29 August 2019, the Petitioner has filed an Amended Petition, in which she no longer maintained that she was domiciled in Hong Kong.  Rather, she asserted that she had a substantial connection with Hong Kong at the date when the Petition was filed.

5.  In compliance with the requirement imposed by rule 9(9) of the Matrimonial Causes Rules (Cap.179A)[1], the Petitioner stated in the Amended Petition the facts on the basis of which it is alleged that there was such substantial connection with Hong Kong as follows:

“呈請人與香港有密切聯繫的詳情

(a) 呈請人持香港永久居民身分證、香港特區護照及永久居留權。呈請人以香港為家，並沒有持有內地戶籍或內地身分證。

(b) 自1990年以來，呈請人定期來香港公幹。

(c) 香港xx道x號xx大廈8A (“the 8A Flat”)為呈請人和答辯人在香港的婚姻居所。在整個婚姻期間，呈請人定期負擔該居所的水電費和管理費、差餉地稅等費用，並處理物業的滲水、鄰里糾紛、收繕房屋、添置家具家電生活用品等事宜。至今，呈請人和女兒仍一直居住在該婚姻居所。

(d) 在1999年，呈請人曾任職xx保險公司（香港）為註冊保險經紀。

(e) 自2007年以來，呈請人在東亞銀行的香港分行設立了銀行賬戶，並且仍然把它作為主要往來戶口。

(f) 呈請人在香港建立了良好和緊密的社區關係和人際網絡。自2001年以來，呈請人是香港xx總會的永久會員。呈請人大部份的朋友也是居於香港。此外，呈請人的女兒、公公和婆婆皆為香港永久居民。”

JURISDICTION

The law

6.  Section 3(c) of the Matrimonial Causes Ordinance (Cap.179) (“the Ordinance”) provides that the court shall have jurisdiction in proceedings for divorce under the Ordinance if either of the parties to the marriage had a substantial connection with Hong Kong at the date of the petition or application.

7.  The Court of Appeal has provided valuable guidance on the meaning of “substantial connection” in its Judgment in ZC v CN (Divorce: jurisdiction) [2014] 5 HKLRD 43.  Because of the importance of this Judgment, I set out the relevant guidance in full below:

9.4  Whether a person has a substantial connection with Hong Kong is clearly a question of fact.  No definition for this term will be succinct or comprehensive enough. What one may do is to look at the surrounding factors to see whether that person is substantially connected with Hong Kong at the time of the petition. As a starting point, one begins to see if that person has connection here and then decide whether that connection is a substantial one, see S v S [2006] 3 HKLRD 751 paragraph 15.  In terms of connection, there must be physical presence in Hong Kong, this must be the ground rock of invoking the divorce jurisdiction.  But because of the requirement of ‘substantial’, the presence cannot be of a transitory nature otherwise this will encourage ‘fly in’ and ‘fly out’ divorces, a theme that the Court has consistently emphasised, see, for example, Griggs (nee Sharp) v Griggs [1971] HKLR 299, Ta Tran Thi Thanh v Ta Van Hung and Another [1981] HKDCLR 37 and more recently S v S, B v A [2008] 1 HKLRD 43.

9.5  In the majority of cases, where a married couple is in Hong Kong, the Court will have no difficulties in ascertaining whether they have a substantial connection here.  Thus in RI v SSH [2010] 4 HKC 588, this Court held that :

4. …… Hence in order to see whether the proceeding has a real and substantial connection to Hong Kong one must, first of all, ascertain whether at the time of its commencement the parties have substantially conducted their matrimonial life in Hong Kong.  Hong Kong being an international commercial city, the identification of this issue is most acute for expatriate families who live in Hong Kong.  The relevant considerations are, for example, whether the parties’ matrimonial home is here, what is their past pattern of life; do they regard Hong Kong as their home for the time being even if their life style may indicate that they may not take root in one place for too long a time.  Related to the issue are matters such as the place of work of the spouses : do they choose to work here; even if one of them has to ‘commute’ overseas to work, is Hong Kong still treated as their home base.  Likewise for the children of the family: are they studying here or spending their vacations here even if they are studying abroad.’

See also LN v SCCM (CACV 62/2013), Judgment dated 4 June 2013 and DGC v SLC (née C) [2005] 3 HKC 293.

9.6  While the discussion in RI v SSH was in the context of forum non conveniens, the question of forum is dependent on the place where the parties have the most real and substantial connection with the action.  Hence the suggested factors are clearly applicable to the present discussion.

9.7  Traditionally, the discussion of this topic mainly centred on the foreign expatriate community who are present in Hong Kong because of business commitments or to avail themselves of the opportunities in this international commercial city, see, for example, S v S, B v A, G v G [2005] 1 HKFLR 182 and Z v Z (Substantial Connection and Forum) [2012] HKFLR 346.  Increasingly in recent years this issue is extended to many of the Hong Kong and Mainland China families who have homes or businesses both here and in the Mainland.  Examples can be found in this and other cases such as LS v AD (Forum; Discovery in the PRC) [2012] HKFLR 376 and YS v TTWD (Substantial Connection : Forum) [2012] HKFLR 129.  The focus of discussion in these cases is not about mainlanders who came here on visitors’ two way permit but those who have resident status in Hong Kong. Needless to say, the same approach of looking at the surrounding circumstances in order to ascertain the presence of substantial connection is to apply to these parties as well. 

9.8  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.  He or she may not be living here on a long term basis and only comes here occasionally.  No doubt one has to look at other factors such as the party’s past pattern of life, the frequency of his visit to Hong Kong, the length and purpose of the stay, whether the party is engaged in business or work here, whether the rest of the family is here and whether a home has been established here and whether the children are at school here.  It is also important to bear in mind that since the legislation only requires the party to establish a substantial connection in Hong Kong, he or she at the same time may have a substantial connection elsewhere, see S v S.  In my view, if a party is shown to have substantial connection elsewhere by reason of his home or work, this may be used to contrast with the connecting factors he has in Hong Kong to see whether the Hong Kong connection is a substantial one.

9.9  It is said in Savournin at page 184 (and also B v A at paragraph 20) that a meaning must be given to substantial connection wider than domicile or three years’ ordinary residence.  But this is not intended to be interpreted so loosely as to encourage residence of passage (Indyka v Indyka [1969] 1 AC 33 at 105) or divorce of convenience.  At the same time it will be unduly restrictive if one confines the connecting factors solely to that of a family context, namely, accommodation in a matrimonial home and presence of spouses and children.  While in the majority of cases, family context is the focus of the inquiry and a material factor, there may well be situations where a party is in Hong Kong without the presence of his family, but nonetheless is able to show that he has a substantial connection here.  It really depends on the circumstances of the case.  Such cases, however, must be regarded as exceptional.

Discussion

8.  As mentioned above, the Petitioner only relied on 5 categories of factual matters in support of her assertion that she had a substantial connection with Hong Kong.  I will consider these matters in turn below.

9.  However, before I do so, I should make it clear that while the Petitioner has in her Affirmations referred to matters which, she alleged, would establish that the Respondent has also had a strong tie to Hong Kong, this court would not consider whether the Respondent had any substantial connection with Hong Kong at the time when the Petition herein was filed, for the Respondent’s connection with Hong Kong, if any, was not relied on to establish jurisdiction of the Hong Kong court in the Amended Petition.  Indeed, Mr. Chan for the Petitioner has not referred to any of those matters in his written submissions.

10.  I would also emphasise that, when considering whether the Petitioner has established her substantial connection with Hong Kong, this court would not simply focus on the factors in the family context.  It should be borne in mind that under section 3(c) of the Ordinance, it would be adequate if either party to the marriage has a substantial connection with Hong Kong.  This necessarily implies that there would be situation where only one party has such a connection.  This matter should particularly be reiterated in the present case because it is common ground that the parties have separated for some years already before the Petition was filed herein[2].

11.  I now turn to the matters relied on by the Petitioner.

12.  Firstly, it was stated that the Petitioner is a holder of a Hong Kong Identity Card, has obtained permanent residency in Hong Kong and has treated Hong Kong as her home.  Further, it was alleged that she had no HuKou or identity card in the Mainland.

13.  While it is true that the Petitioner has already obtained permanent resident status in Hong Kong at the time of the filing of the Petition on 10 August 2017, it is undisputed that she had never lived in Hong Kong as such until November 2017 (i.e. after the commencement of these proceedings) and that, on the Petitioner’s admission[3], she had only stayed in Hong Kong on average for 16 days per year from September 2007 until the filing of the Petition in 2017.  She had only stayed for a small number of days each time she visited Hong Kong before August 2017.  Therefore, it cannot be said that Hong Kong was the Petitioner’s home when these proceedings were commenced.    This is a crucial matter to be taken into account.  No matter how genuine (or how long) it had been on the part of the Petitioner to plan to move to Hong Kong permanently, this plan would not assist her until she had put her intention into action.   The position is the same even if, as the Petitioner alleged, she had very good reasons not to come to live in Hong Kong earlier.

14.  Neither do I think the absence of a HuKou or identity card in the Mainland would assist her.  The question here is whether the Petitioner had any substantial connection with Hong Kong.  In my view, the cutting of connection with the Mainland (if the renunciation of HuKou can be viewed as such) per se would not establish such a connection between the Petitioner and Hong Kong.

15.  Secondly, the Petitioner stated that she had come to Hong Kong regularly on business trip since 1990.

16.  In support of her case, the Petitioner has set out her long employment history since 1990. 

17.  It should be emphasized that the relevant time of “substantial connection” is the time when the petition was filed at the court (i.e. 10 August 2017).  It is therefore unhelpful at all to look too far back in history.

18.  In any event, as the Immigration Department records show, the Petitioner had only stayed in Hong Kong for an average of around 15 to 16 days per year in the period between July 2007 and August 2017.  

19.  Thirdly, the Petitioner alleged that the 8A Flat was the matrimonial home of the parties, and that she had paid for utilities and dealt with various matters in relation to the 8A Flat. Further, she had lived in the 8A Flat with her daughter all along.

20.  I should say at once that I do not accept that the 8A Flat could be regarded as the matrimonial home of the parties at all, as it has been shown by records of the Immigration Department that the parties had only been in Hong Kong at the same time for 4 to 7 days in the period between 2008 and 2012, and they had not been in Hong Kong together in 2007 nor since 2013.

21.  As for the Petitioner’s evidence that she had paid for management fees and utilities for the 8A Flat, I accept, for the purpose of this application, that she did pay towards such fees and utilities for some periods between 2007 and 2017, though not for all the periods as she claimed by reference to the receipts which she produced, since it is evident that she was not in Hong Kong on some of the dates of such receipts, for example, on 5 December 2012[4], 21 April 2013[5], 25 September 2013[6], 13 May 2015[7] and 1 July 2015[8]. 

22.  I would not take into account the Petitioner’s complaint of water leakage, because the complaint was only made for the first time in December 2017[9], which was around 4 months after the commencement of the proceedings herein.

23.  Neither would I accept that the Petitioner had purchased electrical appliances on 27 May 2015[10] and 28 May 2015[11] for use in the 8A Flat as alleged, because she was not even in Hong Kong on those days.

24.  As to the Petitioner’s allegation that she had been living in the 8A Flat with her daughter, I have already referred to her admission that she only moved to live in Hong Kong in November 2017.  On the other hand, there is no evidence on the time when her daughter moved to Hong Kong on a permanent basis.  The available documentary evidence only shows that her daughter had worked in Hong Kong in May and June 2015.  The Petitioner has also produced a bank statement of her daughter, presumably in support of her case that her daughter had worked in Hong Kong in 2017.  However, in the statement produced, there is just a cheque deposit made on 4 May 2017 for a sum of $6,000.  Taking her case to the highest, it would only show that the Petitioner’s daughter had worked for another short period in Hong Kong in around April to May 2017.

25.  Fourthly, the Petitioner stated that she had “obtained an acceptable insurance qualification and was licenced to work as insurance broker”[12] with an insurance company in Hong Kong in 1999.  This is supported by documentary evidence: according to an email sent by the insurance company, the Petitioner was indeed engaged by the company in August 1999.  However, it is noted that, while the Petitioner had stated that she was “licenced to work” as an insurance broker, she did not say that she had actually worked as such.  In any event, even according to her own case, she was only engaged as an insurance broker in 1999, which was 18 years before the filing of the Petition herein.

26.  Fifthly, the Petitioner stated that she had opened a bank account with Bank of East Asia in 2007 and is still using it as her primary bank account in Hong Kong.  This is one of the matters which this court will take into consideration, even though the reminder of Cheung JA made in ZC v CN (Divorce: jurisdiction) (above) should be borne in mind:

“…The fact that the husband has Hong Kong properties where he can stay while in Hong Kong, local bank accounts and also a company registered in Hong Kong does not necessarily establish a substantial connection here. 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 and the large volume of commuters crossing the Mainland borders to Hong Kong…” (at paragraph 11.1)

27.  Lastly, the Petitioner asserted in the Petition that she had established social network and community connection in Hong Kong.  She is a permanent member of a Club in Hong Kong, and most of her friends are living in Hong Kong.  Further, it was stated that her daughter and parents-in-law are Hong Kong permanent residents.

28.  In support of her case, the Petitioner mentioned in her affirmation that she was a member of a Club (which was related to a capital of a province in the PRC) since 2001.  She also said that her social network in Hong Kong includes her former employers, business partners, clients, association members, relatives and friends for years.

29.  The Petitioner stated that she “particularly maintained a close relationship” with the Respondent’s parents and “they are one of the most important connection (sic)” she has in Hong Kong.  However, it is undisputed that the Petitioner’s parents-in-law went to Beijing to receive medical treatment in 2006, and had subsequently passed away there in February 2007 and July 2008 respectively.  If any, such a relationship would have ended around 9 years before the commencement of the proceedings herein.

30.  The Petitioner did not give further information as to her relationship with the other people she referred to in her affirmation, so there is no evidence as to how close she was and how frequent she had kept contact with them.  However, if the Petitioner would describe her relationship with her parents-in-law as “one of the most important connection (sic)” she had in Hong Kong in the circumstances where they had already passed away for at least 9 years before the commencement of the proceedings herein, this court has great doubt as to whether she really has close social relationship with those people as alleged. It should be borne in mind that since it is the Petitioner who is obliged to establish her substantial connection with Hong Kong, she has to burden to prove such a connection.

31.  To conclude, having considered all the above matters, while I accept that the Petitioner had connection with Hong Kong at the time when these proceedings were commenced in August 2017, I am not satisfied that such a connection was substantial enough to invoke Hong Kong court’s jurisdiction in this matrimonial cause.

32.  Mr Chan, in his written submissions, referred to section 3(b) of the Ordinance and reminded the court that the Petitioner will have habitually resided in Hong Kong for 3 years by the end of 2020, and “even if the Husband succeeds in achieving a mere pyrrhic victory – it does not prevent the Wife from issuing a Fresh Petition based upon her habitual residence from 2017 to 2020”.  With greatest respect, insofar as it is counsel’s submissions that the court should take this matter into account when deciding whether the court has jurisdiction on this matrimonial cause pursuant to section 3(c) of the Ordinance, I disagree.  While it may well be a matter for the parties to consider, in light of the possibility that the Petitioner may rely on section 3(b) of the Ordinance in establishing the court’s jurisdiction, whether they should incur cost and time in arguing the summons before this court, this is certainly not a matter which the court should consider in deliberating on the summons.

33.  For the above reasons, the Amended Petition filed herein should be dismissed for want of jurisdiction.

FORUM NON CONVENIENS

34.  In case I am wrong in my conclusion on the court’s jurisdiction on this matter, I turn to consider the alternative relief sought by the Respondent, namely, to stay the proceedings in Hong Kong on the ground of forum non conveniens.

The law

35.  The law governing stay of proceedings on the ground of forum non conveniens is well established.  In SPH v SA [2014] 3 HKLRD 497, the Court of Final Appeal had the following to say:

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

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

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

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

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

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

Stage 1a – Another available forum?

36.  In light of the particular circumstances of this case, there are two different questions which need to be answered under stage 1 of the well known test referred to above.

37.  The first question is whether this court is satisfied that the Beijing Court is an available forum at all.  The Petitioner submitted that it is not, because the divorce proceedings which were initiated by the Respondent there, and the Respondent’s appeal to the Intermediate Court in Beijing, had both been dismissed.  The Petitioner’s PRC legal expert opined that this is a final decision which is not subject to further appeal.

38.  The Respondent did not dispute what the Petitioner asserted as far as the previous proceedings commenced in Beijing were concerned.  However, it was submitted by the Respondent that he is entitled to commence new proceedings in the Beijing Court in the event the proceedings in Hong Kong are stayed.  The real question is therefore whether the Respondent is really entitled to do so.  If he is not, then there is no alternative forum which is available, and the Respondent’s application for stay herein would be a non-starter.

39.  In this regard, according to the PRC legal opinion obtained by the Petitioner, in the event Hong Kong Court takes the view that it has no jurisdiction over this matter, the PRC Court would accept jurisdiction[13].  This must be correct, because it is clear that the Beijing Court had dismissed the Respondent’s proceedings there previously because, among other things, it took the view that Hong Kong court had accepted jurisdiction of this matrimonial cause, and a hearing in the Hong Kong court had already been fixed before the Respondent commenced proceedings there. 

40.  The position would be totally different in the event the proceedings herein are stayed.

41.  I have not lost sight of the opinion of the Petitioner’s expert that even though the Respondent is entitled to commence proceedings in the Beijing Court, the proceedings so commenced may still be stayed by reason of forum non conveniens.  In my view, that is another question, which should be further discussed below.  However, as far as this “stage 1a” is concerned, I hold that there is another available forum in the Beijing Court.

Stage 1b – Is the Beijing Court a more appropriate forum?

42.  The Respondent has the burden 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 this case), and second, the Beijing Court is clearly or distinctly more appropriate than the Hong Kong court in resolving the matter.

43.  In my view, the Respondent has successfully discharged his burden in establishing that Hong Kong is not the natural or appropriate forum and that the Beijing Court is clearly or distinctly more appropriate than the Hong Kong court in resolving the matter for the following reasons:

(i)  The parties were married in the Mainland and they were living in the Mainland (rather than in Hong Kong) during their entire marriage life;

(ii)  The parties had never lived together in Hong Kong;

(iii)  Both the Petitioner and the Respondent had only stayed in Hong Kong for an average of around 15 to 16 days each every year in the period between July 2007 and August 2017;

(iv)  One of the main issues in the present case is the validity and enforceability of the ante-nuptial agreement dated 17 January 1997 (“the Agreement”).  It was submitted by Mr. Yim, which was not disputed by Mr. Chan for the Petitioner, that in the absence of an express choice of law in the Agreement, the general rule is that a Hong Kong court will regard it as governed by the system of law by reference to which it was made or that with which it has its closest and most real connection.  I also agree with Mr. Yim’s submission, which again is not disputed by Mr. Chan in his written submissions, that in the circumstances of the present case, any dispute arising from the Agreement is best suited to be heard by the Beijing Court by reference to the PRC law;

(v)  Another main dispute between the parties herein is the Respondent’s interest in a PRC company which was sold by the Petitioner to another party one week before the Petitioner commenced matrimonial proceedings in Hong Kong.  The Respondent alleged that the entire interest in the company had been transferred to a third party for free by the Petitioner without his knowledge or approval, whereas the Petitioner claimed that the Respondent was only a nominal shareholder without beneficial interest in the shares of the company.  It is evident that the Respondent has commenced court proceedings against the Petitioner in the No.4 Intermediate People’s Court in Beijing in April 2019;

(vi)  I accept the expert evidence adduced by the Respondent that, by virtue of section 2 of “最高人民法院關於中國公民申請承認外國法院離婚判決程序問題的規定” (“規定”), any judgment on ancillary relief obtained in Hong Kong would not be recognised in the PRC and as a result the same subject matter concerning assets located in the Mainland has to be re-litigated in the PRC.  Although the Petitioner’s expert opined otherwise and referred to a judgment of an Intermediate People’s Court in support, I note that the statutory provisions relied on by the Petitioner’s expert and the said judgment are different, and more importantly, neither did the Petitioner’s expert nor the said judgment referred to the 規定.   I therefore reject the expert evidence relied on by the Petitioner as being unreliable.

44.  I am fully aware of the Petitioner’s assertions that since November 2017, she has lived and worked in Hong Kong (and allegedly living here together with her daughter) on the strength of her permanent Hong Kong identity card.  She has a bank account in Hong Kong.  Further, she has no HuKou in the Mainland.  On the other hand, I have not forgotten that the Respondent has a property in Hong Kong which he inherited from his father in 2009.  He admittedly has some bank accounts in Hong Kong for securities investment purpose.  The Respondent was also a director in various companies back in the late 1990s and is a holder of a permanent identity card. 

45.  In her affirmation, the Petitioner also pointed to the fact that the Respondent had been or currently is a manager and chairman of a Shenzhen company and a Guangdong company respectively.  Both these PRC companies have parent companies registered in Hong Kong. 

46.  However, I am of the view that the above matters, taken together, are inadequate in making Hong Kong a natural or appropriate forum.

47.  Mr Chan referred this court to the case of LS v AD (Forum) [2012] HKFLR 376 and submitted that the case before this court is similar to the said case authority in that the court has to identify what does or does not belong to a party to the marriage (the Respondent in the present case).  With respect, the facts in LS v AD (above) are clearly distinguishable in that the assets in Hong Kong in that case involve “mainly shares in both BVI and Hong Kong companies, securities and other financial devices and investments, as well as potential debts which are much more fluid and hence easily disposed or transferred out of the jurisdiction, all of which may require complicated investigation, auditing, valuation, fluctuation and litigation”[14].  The assets in Hong Kong owned by the parties before this court are much less complicated.

Stage 2 – Legitimate personal or juridical advantage

48.  Given my conclusion under stage 1 above, it would be up to the Petitioner to show that she will be deprived of a legitimate personal or juridical advantage if the action is tried in the Beijing Court.

49.  As pointed out by Mr Yim for the Respondent, Mr Chan has made no submissions in relation to juridical disadvantage.

50.  Mr Yim suggested that the only juridical disadvantage raised by the Petitioner in her affirmations was that it would be “extremely unfair”[15] to her if this case is to be adjudicated upon by the PRC court as the Agreement would be “influential to the judgment in the PRC court”.

51.  As pointed out by the Respondent’s PRC law expert (which is undisputed by the Petitioner or her expert), it is open to the PRC court to set aside the Agreement, subject to the adequacy of evidence to be adduced by the Petitioner in support of her case.  Further, it is also up to the Petitioner to claim for compensation in light of her sacrifice to the family despite such an Agreement.

52.  There is therefore no juridical advantage which the Petitioner would be deprived of even if the case is tried in the PRC.

Stage 3 – Balancing exercise

53.  Given my above finding, no balancing exercise is required to be done.

Conclusion on forum non conveniens

54.  For reasons of the aforesaid, if it were necessary for this court to consider the Respondent’s application for stay on the ground of forum non conveniens, this court would have acceded to such an application.

ORDER

55.  As the Petitioner has failed to establish a substantial connection with Hong Kong as at 10 August 2017, the Amended Petition filed herein on 11 September 2019 is hereby dismissed for want of jurisdiction.

COSTS

56.  I make a costs order nisi that the Petitioner shall pay the Respondent’s costs of the proceedings (including the costs of this application, with certificate for counsel), to be taxed if not agreed. 

57.  The costs order nisi shall become absolute in the absence of any application to vary within 14 days.