PFX v. XKJ

FCMP 188 /2024

[2025] HKFC 154

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 188 OF 2024

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J U D G M E N T

( Substantial connection and setting aside Part II A leave)

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1.  The parties’ marriage had been dissolved in Chongqing, the People’s Republic of China (“PRC”) back in December 2022. Purely for the ease of reference, the Applicant as the ex-wife of the Respondent will be referred to as “W” whilst the Respondent as “H” below.

2.  This is the substantive hearing of:

(1)  H’s Summons filed on 6 November 2024 for essentially:

(a)  dismissal of these proceedings for want of jurisdiction;

(b)  setting aside of the Part IIA leave granted by me to W pursuant to the Matrimonial Proceedings and Property Ordinance (Cap. 192) (“MPPO”) on an ex parte basis on 22 July 2024;

(c)  discharge of the ex parte injunction and disclosure order granted by me against H on 27 September 2024 (which was varied subsequently on 11 November 2024 and 25 April 2025 an inter parte basis respectively); and

(2)  W’s Summons filed on 2 October 2024 for continuation of the ex parte injunction and disclosure order.

Brief background

3.  H (currently 47) and W (currently 40) were both born in Chongqing.

4.  H and his family worked and continue to work in the construction industry of Chongqing.

5.  W studied finance at Chongqing Technology and Business University (重慶工商大學) and later worked in a bank in Chongqing until around 2009.

6.  H and W met in around 2007 and married in Chongqing on 17 September 2008.

7.  Since around the late 2000s, H has had concerns about the PRC’s political and socioeconomic climate and wished to emigrate overseas if need arose.

8.  H and W applied for permanent residency or citizenship in numerous other jurisdictions, including:

(1)  Hong Kong, which the parties applied under the Capital Investment Entrant Scheme in Hong Kong (“CIES”) in 2011 by investing about HK$11 to $12 million in a specified securities account and they were granted permanent residency in 2021;

(2)  Canada, which the parties applied for before their application under CIES but did not hear back from for a long time;

(3)  Singapore, which the parties also applied for before their CIES application but were rejected from;

(4)  Guinea-Bissau, which H obtained permanent residency in before the parties’ CIES application;

(5)  Turks and Caicos Islands, which the parties applied for in around 2014 and were rejected from;

(6)  Antigua and Barbuda, in which the parties obtained citizenship in 2015.

9.  During their marriage, H and W gave birth to two daughters and arranged for the daughters to be born in Hong Kong in August 2010 and in January 2016 respectively (currently aged 14 and 9).

10.  At all material times, the family resided in Chongqing and the daughters all along received education in PRC during the marriage, before going to Canada for further study in August 2023.

11.  The marriage was unfortunately rocky. W claims that in around 2012 or 2013, H threatened to divorce W unless she agreed to sign an agreement concerning financial arrangements upon divorce. H does not agree that this event took place.

12.  In November 2016, W asked for a divorce. The parties agree that they signed an agreement concerning financial arrangements upon divorce, although they do not agree on which exact agreement was signed. The issue concerning the agreement or agreements signed by them is in great dispute and will be discussed in the latter part of this judgment. In any event, the parties reconciled afterwards.

13.  H cancelled his Hukou in Chongqing and surrendered his Chinese nationality in April 2017. But he remained and remains resident in Chongqing up to the date.

14.  In June 2021, W and H’s applications for Hong Kong permanent residency (“HKPR”) were approved.

15.  In September 2022, W proposed divorce again. In around December 2022, it is not disputed that the parties signed another agreement concerning children and financial arrangements upon divorce (“PRC Divorce Agreement”), which was formally registered in the PRC court.

16.  The parties’ marriage was eventually dissolved in PRC on 8 December 2022. In January 2023, W cancelled her mainland Hukou.

17.  In August 2023, the daughters (accompanied by W) went to Canada for studies. They would return to Chongqing during some school holidays.

Procedural history

18.  On 19 April 2024, W made an ex parte application without notice for Part IIA leave under MPPO, which was granted by me on 22 July 2024.

19.  About 2 months later on 17 September 2024, W commenced these proceedings pursuant to the Part IIA leave but did not serve the originating summons on H.

20.  On 23 September 2024, W made another ex parte application without notice for an injunction and disclosure order against H.

21.  On 27 September 2024, I granted an ex parte injunction and disclosure Order, restricting H from dealing with H’s assets in Hong Kong up to the value of HK$185,000,000 and requiring H to make certain disclosure (“Injunction and Disclosure Order”). The inter partes return date for the Injunction and Disclosure Order was fixed on 11 November 2024 before me.

22.  On 3 October 2024 and 9 October 2024, H was served with papers in relation to the Injunction and Disclosure Order by WeChat and EMS respectively and became aware of these proceedings for the first time.

23.  The Injunction and Disclosure Order was subsequently varied (and continued) by me on 11 November 2024 and 25 April 2025 respectively.

24.  These proceedings also involve a dispute over the beneficial ownership of a BVI company, JianXin International Limited (“JianXin”). W took out a summons on 4 March 2025 joining the H’s parents as parties to these proceedings and for avoidance of transactions between H and his parents (“W’s Joinder Summons”). These disputes have been adjourned sine die pending the determination of H’s Summons pursuant to my order dated 25 April 2025, except a hearing for §4 of the W’s Joinder Summons fixed on 10 October 2025.

25.  The Injunction and Disclosure Order currently stands[1] as follows:

(1)  H is restricted from disposing of or dealing with:-

(a)  Assets within Hong Kong up to the value not less HK$11,500,000; and

(b)  JianXin’s assets held in its London Goldman Sachs account up to the value of HK$184,200,000;

(2)  H shall provide W with monthly statements of Hong Kong accounts held by H and JianXin’s London Goldman Sachs account.

Jurisdiction under MPPO Part IIA

26.  It is trite that to establish jurisdiction under Part IIA of the MPPO, an applicant needs to prove either one of the three grounds, namely (1) domicile, (2) habitual residence, or (3) substantial connection: MPPO s. 29AE(a)-(c). If none of the three jurisdictional requirements is satisfied, it would be "clearly wrong” for the Court to grant leave: C v H (Foreign Decree: Part IIA) [2012] HKFLR 199, §30.

27.  Specifically for substantial connection, the applicant has to show that either party to the marriage had a substantial connection with Hong Kong on the date of the application for Part IIA leave or on the date on which the divorce took place in the foreign jurisdiction: MPPO s. 29AEI. In the present case, the burden is on W to establish jurisdiction: CW v CC [2024] HKFC 92, §33.

28.  W invokes this Court’s jurisdiction solely on the ground that either of the parties had a substantial connection with Hong Kong on either one of the following material dates:

(i)  19 April 2024, being the date on which her application for Part IIA leave was issued; and

(ii)  8 December 2022, being the date on which the PRC divorce took effect (“collectively “2 Material Dates”).

Meaning of “substantial connection” in the context of Part IIA

29.  One of the main legal issues in this case is whether the meaning of “substantial connection” in the context of Part IIA leave under s 29AE MPPO is the same as that in the context of the divorce jurisdiction under s 3 of the Matrimonial Causes Ordinance Cap 179 (“MCO”).

30.  Mr Yim and Ms Chong for H heavily relied on the cases concerning substantial connection in the divorce jurisdiction and submitted that neither party had a substantial connection to Hong Kong at either the 2 Material Dates.

31.  On the other hand, Ms Yip SC leading Ms Yu for W submitted that one should not simply look at the natural and ordinary meaning of “substantial connection” but also “the context and the purpose of this term”: ZC v. CN (Divorce Jurisdiction) [2014] 5 HKLRD 43 at §9.1. They further submitted that in Part IIA cases, since the marriage has already been dissolved in a foreign jurisdiction, the Hong Kong court’s role is limited to adjudication on whether additional financial reliefs will be made, or whether there is a substantial ground for making an application for financial relief, but not on divorce and children matters. The context and purpose of Part IIA jurisdiction is obviously different from the divorce jurisdiction under MCO or even under the declaration of parentage jurisdiction under the Parent and Child Ordinance Cap 429 (“PCO”). Thus, in a Part IIA case, it is quintessential that the enquiry should focus on the parties’ financial arrangements during and arising out of their marriage, e.g., how where why and the circumstances which guide their investments or placements of their money.

32.  Indeed, in CMU v WPM (Part IIA Application) [2012] HKFLR 245, after referring S v. S [2006] 3 HKLRD 751 when Hartmann J (as he then was) considered the statutory provisions under section 3(c) of MCO, Judge G Own had briefly discussed the term “substantial connection” with the applicant’s counsel, Mr Neal Clough and said:

“19. 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 the newly enacted Part IIA of the MPPO, Cap.192, which likewise bestows jurisdiction on commencement of financial reliefs proceedings. I do not believe the legislature 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.” (emphasis added)

33.  Furthermore, the W’s similar arguments had been raised by the applicant wife and rejected by Judge G Chan in M v G[2]. The learned judge made very detailed analysis and said in §§39-48 as follows:

“39. First, I accept that whether a party to the marriage has/had a substantial connection with Hong Kong is fact-sensitive. I also accept that the factor of “financial ties” with Hong Kong should not be precluded from the consideration of the court. However, the issue to determine in this application is whether the husband can be said to have a substantial connection with Hong Kong merely “by his ownership of the shares in Broad [Investment Ltd]”, but without any evidence that he had any physical presence in Hong Kong.

40. Second, the submission of Mr Lam raises the issue of statutory interpretation of what constitutes “substantial connection” for the purpose of section 29AE(c) of the MPPO, and whether it entails the same requirements as that adopted in cases decided under MCO and PCO. He also makes submission on the possible legislative intent of the said section 29AE(c). However, the court is not given any helpful assistance as to any relevant documents or papers tabled during the legislative procedures/debate on the term of “substantive connection” under Part IIA. I have to look up the legislative records myself (which are public records of the Legislative Council) in order to find out if the term of “substantial connection” in Part IIA was ever discussed or debated in the legislative procedure.

41. Upon my own research, it is found that the new Part IIA of the MPPO came into force in March 2011. Before the law was passed, there was a paper prepared by the Department of Justice in May 2010 for the LegCo Panel on Administration of Justice and Legal Services in relation to the introduction of the new Part IIA (LC Paper No. CB(2)1615/09-10(01) (“LegCo Paper”). The LegCo Paper set out the purpose, background, and proposed amendment of the new Part IIA. Of note is that the then proposed jurisdictional requirements did not follow section 15(1)(c) of the 1984 Act, nor did it include “substantial connection” as one of the criteria. The then proposed wording was that either of the parties to the marriage being:

(1) habitually resident in Hong Kong for at least 1 year; or

(2) a permanent resident of Hong Kong.

42. The LegCo Paper also recorded the views given by various stakeholders on the aforesaid proposed wording on the jurisdictional requirements in the new section 29AE, such as the Law Society, the Bar Association and the Judiciary, as a result of which the said section 29AE was re-drafted into its present form, which is analogous to three jurisdictional requirements in section 3 of the MCO, ie domicile, habitual residence, or substantial connection in/with Hong Kong.

43. It is thus clear that the legislative intent of section 29AE of the MPPO is to align the jurisdictional threshold with that of the MCO. It follows that the same meaning and requirement of “substantial connection” adopted in cases decided under MCO should also be applicable to section 29AE(c) of the MPPO.

44. Third, the Court of Appeal in Re WSJ (supra), when giving its appeal judgment on whether the body of cases on substantial connection in matrimonial cases should apply to section 6(2)(c) of the PCO, took the view that the context in which a statute was to be interpreted included other statutes in pari materia ie other statutes dealing with comparable matters (at §39), and thus the same interpretation which the courts have placed on “substantial connection” in other family legislations should be adopted in interpreting the said section 6(2)(c). Further, the Court of Appeal referred to the judgment of HH Judge Own in CMU v WPM (Part IIA Application) [2012] HKFLR 245, in which the learnt judge applied the same interpretation of “substantial connection” under the MPPO to the leave application before him.

45. It is thus clear to me that the case law also shows that the same interpretation/meaning to the phrase of “substantial connection” under the MCO and the PCO should apply to the MPPO.” (emphasis added)

34.  It is also important to mention footnote 5 of her judgment that “The Law Society commented that a criteria similar to section 15(1)(c) of the 1984 Act, ie the “matrimonial home” ground, should be added. The Bar were of the view that the court’s jurisdiction under Part IIA should be analogous to that in section 3 of MCO. The Judiciary was of the view that the jurisdiction of the court under the new Part IIA should not be wider than the present jurisdiction of the court in the divorce proceedings.”

35.  Ms Yip SC leading Ms Yu disagreed with the learned judge’s reasoning and argued that the LegCo Paper does not showing a clear legislative intent as the judge said at §43.

36.  With respect, I disagree with the submission of Ms Yip SC and Ms Yu. Although I accept that nowhere in the LegCo Paper was mention of the legislative intent on the jurisdictional grounds, it clearly states at §26 of the LegCo Paper under the heading of “The Administration’s Response” that “…The jurisdiction of the court to deal with ancillary relief matters after recognition of an overseas divorce decree will be analogous to that of divorce proceedings under section 3 of the MCO”. In my view, it means that both statutes share the same jurisdictional requirements and that the contextual and purposive interpretation of the jurisdictional requirements of both statutes are the same. Even without ruling the legislative intent based on the LegCo Paper, I will come to the same conclusion on the reasons below.

37.  The Court of Appeal in WSJ (Minor) v. WCJ (Jurisdiction; Children) [2019] HKFLR 18, apart from concluding at §42 that the same interpretation of “substantial connection” in other family legislations should be adopted in interpreting that in PCO, further expressed some views on the interpretation of s 29AE MPPO as follows:

“Our view

35. Apart from the PCO, there are other family legislations with similar jurisdictional requirements such as the MCO and the MPPO, both of which were introduced as part of the family law reform in the 1970’s.

36. Under section 3 of the MCO, in respect of proceedings for divorce, the jurisdictional requirements are similarly stated to be domiciled in Hong Kong, habitual residence in Hong Kong or substantial connection with Hong Kong. Section 29AE of the MPPO also sets out three similar jurisdictional alternative requirements for the granting of financial relief.

37. ….

38. We noted in ZC the case of CMU v WPM (Part IIA Application) [2012] HKFLR 245 which applied the same interpretation of the phrase ‘substantial connection’ under the MPPO.

39. In Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144, Bokhary PJ held at 156B that :

‘ It is well-established that the context in which a statute is to be interpreted includes other statutes in pari materia ie other statutes dealing with comparable matters.’

40. Mr Ng referred us to the judgment of Viscount Buckmaster in Barras v Aberdeen Steam Trawling and Fishing Co [1933] AC 402, at 411 that :

‘ It has long been a well established principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it.’

41. It is of note that this principle is not strictly a rule as such, as Lord Scarman explained in R v Chard [1984] AC 279 at 294 :

‘ I respectfully agree with my noble and learned friend that it would be wrong to extract from the speeches of their Lordships in Barras v. Aberdeen Steam Trawling and Fishing Co. Ltd. [1933] A.C. 402 an inflexible rule of construction to the effect that where once certain words in an Act of Parliament have received a judicial construction in one of the superior courts and the legislature has repeated them without alteration in a subsequent statute, the legislature must be taken to have used them according to the meaning which a court of competent jurisdiction has given to them. Viscount Buckmaster (p. 412) clearly thought that such a rule existed and that it was salutary and necessary: but others of their Lordships took a different view, notably Lord Blanesburgh (p. 414) and Lord Macmillan (pp. 446-447). Lord Macmillan–for, as I respectfully think, compelling reasons–treated the rule not “as a canon of construction of absolute obligation” but as a presumption in circumstances where the judicial interpretation was well settled and well recognised: and even then his Lordship thought the rule must yield to the fundamental rule that in construing statutes the grammatical and ordinary sense of the words is to be adhered to, unless it leads to some absurdity, repugnance, or inconsistency. This view accords with modern principles of statutory interpretation and should, in my opinion, be preferred to that adopted by Viscount Buckmaster.’

42. The PCO was enacted in 1993. There was no legislative debate on the term ‘substantial connection’ in the legislative process, see Official Record of Proceedings, Hansard, 24 June 1992 and 10 March 1993 (‘the Legislative Council Brief dated 3 June 1992’). In the present case there is really nothing in counsel’s submission that can challenge the application of the presumption that the same interpretation which the Courts have placed on ‘substantial connection’ in other family legislations should be adopted in interpreting a similar phrase in the PCO. There is also no contrary argument that the construction which the Courts have placed on the phrase ‘substantial connection’ will lead to absurdity, repugnance or inconsistency.

43. The only substantial point that has been put forward by the applicant is that it is in the best interest of the child for this Court to accept jurisdiction. We are unable to accept this submission. This is tantamount to putting a gloss on the plain words of ‘substantial connection’. In our view, there should be no distinction drawn between an adult and a child on the statutory interpretation of ‘substantial connection’. Mr Chow referred to QMY v. GSS (2017) 20 HKCFAR 303 in which the Court of Final Appeal held that the Family Court had jurisdiction to order maintenance for an ex- nuptial child living with her mother in the Mainland against the child’s father who was living in Hong Kong but who had been properly served in Hong Kong with the proceedings. The application was made under section 10(2) of the Guardianship of Minors Ordinance (‘GMO’), Cap. 13. Unlike the PCO, MCO and MPPO, there is no jurisdictional requirement in the GMO. This case does not assist the applicant once its context is properly understood. The Court of Final Appeal did not decide the case on the basis that the child’s best interest as the first and paramount consideration should be adopted in statutory interpretation, let alone across the board for all statutes.”

38.  The Court of Appeal in WSJ’s case expressly mentioned Judge G Own’s decision in CMU’s case in §38 and did not say anything to disapprove the learned judge’s view on the interpretation of the phrase ‘substantial connection’ under the MPPO.

39.  In any event, Ms Yip SC leading Ms Yu cited no authority to support their submissions in this regard. Applying the well-established principle of pari materia, I fail to see how Ms Yip SC leading Ms Yu can challenge the application of the presumption that the same interpretation which the Hong Kong courts have placed on ‘substantial connection’ in other family legislations such as MCO and PCO should be adopted in interpreting a similar phrase in s 29AE MPPO.

40.  Ms Yip SC leading Ms Yu further argued that their submissions are also supported by the drafting of s 29AF(2), listing the following (non-exhaustive) factors, which indicates that the type of connection demanded under Part IIA is both personal and financial, viz, the general connection the parties have with Hong Kong and the availability of Hong Kong assets justifying a Part IIA order (as compared to the other competent jurisdiction):-

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

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

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

(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 - financial;

(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 - financial;

(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 - financial;

(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 – financial;

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

(i)  the length of time that has elapsed since the date of the divorce, annulment, or legal separation – general / personal / financial.

41.  Mr Yim and Ms Chong for H submitted and I entirely agree that s.29AF(1) specifically refers to the Court’s duty to consider “all the circumstances of the case”. As recognized by W herself, s.29AF(2) refers to personal and general factors, but not just financial ones.

42.  Accordingly, W’s contention in this regard, in particular the enquiry ought to be focused on only financial matters, must be rejected.

43.  To conclude, I consider that in order to avoid conflicting or inconsistent interpretation of the term ‘substantial connection’ in the MCO and the MPPO, I share the same view of my learned brother and sister, namely Judge G Own and Judge G Chan, that the same interpretation which the Hong Kong courts have placed on ‘substantial connection’ in s 3 of the MCO should be adopted in interpreting a similar phrase in s 29AE of the MPPO.

Whether either party had a substantial connection with Hong Kong on either one of the 2 Material Dates

44.  The law on “substantial connection” has been extensively stated by the Court of Appeal in ZC v CN [2014] 5 HKLRD 43 and subsequently in JQ v CLH (Divorce: Jurisdiction) [2022] 2 HKLRD 632. Mr Yim and Ms Chong are very helpful and rightly summarised the main points as follows: -

(1)  It is a question of fact;

(2)  The Court looks at the surrounding factors to see whether one is substantially connected with Hong Kong;

(3)  “Substantial connection” is not intended to be interpreted too loosely as to encourage residence of passage or divorce of convenience. It involves a two-stage process:-

(a)  If the person concerned has a connection with Hong Kong;

(b)  If yes, is the connection a substantial one;

(4)  Physical presence is the ground rock, but the presence cannot be of a transitory nature;

(5)  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;

(6)  One has to look at other factors such as:

i.  the party's past pattern of life;

ii.  the frequency of his visit to Hong Kong;

iii.  the length and purpose of the stay;

iv.  whether the party is engaged in business or work here;

v.  whether the rest of the family is here;

vi.  whether a home has been established here; and

vii.  whether the children are at school here;

(7)  A connection must be real in the sense, for example, that it has not been engineered for temporary tactical advantage;

(8)  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)  In gist, whether a connection is substantial or not can only be determined on the basis of a broad objective assessment, taking all relevant factors into account.

45.  Whilst the Court takes a holistic approach and evaluates all the relevant factors including any pertinent event, matter, conduct or circumstance prior to the time specified in the statute, it is ultimately the position as at the specified date that is determinative: ZJW v SY [2017] HKFLR 612 §56.

46.  It is unhelpful to look too far back in history before the relevant time as stipulated by the statute: CN v YTW [2020] HKFC 146 §17.

47.  In my view, it is also important to note the connecting factors which relate to the family context: -

(1)  Although the Court does not confine itself to considering connecting factors in a family context, in the majority of cases, family context is the focus of the inquiry and a material factor. It is only in infrequent or exceptional cases that a party can establish a substantial connection with Hong Kong without the presence of his/her family here (but that is not to elevate “exceptionality” as the test for determining substantial connection): ZC v CN §9.9; JQ v CLH §24;

(2)  Thus, it has been observed that “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”: ZC v CN §§9.5-9.6; ZJW v SY §41;

(3)  Similarly, in Z v Z [2012] HKFLR 346, DHCJ B Chu (as she then was) held at §90 that “in considering jurisdiction for matrimonial proceedings under s 3(c) of the MCO, material factors should include some connection with the marriage or connection with the parties on a ‘personal’ level or ‘personal’ sense and not only from a ‘corporate’ or ‘business’ sense…”.

48.  In ZC v CN, where the parties had conducted matrimonial life in the Mainland prior to the wife’s petition (§11.1), the Court of Appeal found that they had no substantial connection with Hong Kong, notwithstanding that:

(1)  The husband (i) came to Hong Kong frequently; (ii) owned properties in Hong Kong in which he could stay; (iii) held Hong Kong bank accounts; (iv) had a company registered in Hong Kong; and (v) had a HKID card and was a HKPR (§11.1);

(2)  The wife (i) made frequent entries to Hong Kong; (ii) was a Hong Kong resident with a HKID card; and (iii) owned a flat in Hong Kong (§11.3).

49.  To establish jurisdiction under Part IIA of the MPPO at the ex parte hearing, I could only hear the submissions of W who mainly relied on (1) both parties and the daughters being HKPR; (2) the parties spending considerable time in Hong Kong; and (3) the parties maintaining substantial assets in Hong Kong. Now, I have the benefits of reading all the information and materials produced by the parties and hearing the arguments advanced by their counsel on this issue of substantial connection.

50.  Based on the legal principles and factors mentioned above, I will discuss them in detail below.

Physical presence

51.  To start with, I would emphasise the importance of physical presence again. In ZC v CN, the Court of Appeal stated at §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…” (emphasis added)

52.  As at the 2 Material Dates, the parties were not physically present in Hong Kong according to the parties’ Statement of Travel Records. However, I shall not stop here but shall take a holistic approach and evaluate all the relevant factors and circumstances prior to the 2 Material Dates.

Parties’ history of travel to Hong Kong

53.  As said above, the frequency of the parties’ visit to Hong Kong, the length and purpose of the stay are relevant factors. Based on W’s immigration travel record, the numbers of days W spent in Hong Kong are 20 (2014), 105 (2015), 32 (2016), 67 (2017), 73 (2018), 51 (2019), 26 (2020), and 27 (2023). Based on H’s immigration travel record, the number of days that H stayed in Hong Kong are 120 (2015), 87 (2016), 99 (2017), 82 (2018), 56 (2019), 24 (2020), and 24 (2023). W said that due to COVID-19 travel restrictions, they were absent from Hong Kong between March 2020 and January 2023.

54.  The parties’ HKPR’s application was approved on 2 June 2021. Prior to 8 December 2022, ie the date of the PRC divorce, I can accept that H and W had some difficulty to travel to Hong Kong until February 2023 due to COVID-19 travel restrictions.

55.  But as a matter of facts, they have spent not very long time in Hong Kong prior to 2020, W only stayed for 32 days in 2016, 67 days in 2017, 73 days in 2018 and 51 days in 2019 whereas H only stayed for 87 days in 2016, 99 days in 2017, 82 days in 2018 and 56 days in 2019. I consider it unhelpful to look too far back in history before 2016.

56.  From February 2023 onwards and prior to 19 April 2024, ie the date of W’s application for Part IIA leave, the parties stayed here even for a shorter period of time, particulars of which are as follows: -

	Date(s) of travel	Duration
W’s travel records
	7-22 February 2023 (to collect her HKID card)	Less than 16 days
	26 February – 1 March 2023	Less than 4 days
	22-25 May 2023	Less than 3 days
	1 June 2023	Less than 1 day; same day return
	3-4 August 2023	Less than 2 days
	Total:	Less than 26 days
H’s travel records
	7-22 February 2023 (to collect his HKID card)	Less than 16 days
	26 February – 1 March 2023	Less than 4 days
	9-15 July 2023	Less than 7 days
	Total:	Less than 27 days

57.  W said that during their stays in hotels and serviced apartments in Hong Kong, H managed his business/ investments remotely, while W assisted him and took care of the daughters. As part of their married life, they spent their leisure time shopping, dining out, sightseeing, etc. She also produced the H’s draft application letter to Hong Kong Immigration in 2016 stating his ideal immigration destination was Hong Kong (“本人最理想的移民地區是香港”) though holding Antigua and Barbuda nationality.

58.  In my view, the real purposes of the parties’ stay are relevant and not just what they stated in the application or letter. Their stays can be categorized as “social presence” and “economic presence”.

Social presence

59.  Even if I accept all the W’s evidence concerning her staying in hotels and serviced apartments, taking care of the daughters or children, spending leisure time in shopping, dining out, sightseeing, going to theme park etc, I cannot agree that her stays are sufficient to be regarded as substantial social presence. All tourists will do the same things in Hong Kong.

60.  On the other hand, prior to moving to Canada in August 2023, the daughters attended school in Chongqing but have never attended school in Hong Kong. W gave no explanation or good explanation for that. If the parties have the real intention to relocate in Hong Kong and really consider here being ideal immigration destination, there is no reason why they never plan the daughters’ schooling here.

61.  There is no evidence before me that the parties had maintained any kind of memberships or community ties in Hong Kong so as to anchor them to the life here. They also did not have very strong social networks or connections in Hong Kong, such as relatives or close private or business friends here.

62.  W tried to explain why the parties did not purchase landed property in Hong Kong. Her reason is that the CIES excludes the value of landed properties when calculating the investment amount. Also, they would have incurred extra stamp duty costs if they purchased property before obtaining permanent resident status. However, W also alleged that excluding her own assets, the value of the H’s total assets exceeds HK$540 million. In my view, since the parties are so wealthy and if they have the real intention to relocate in Hong Kong, the price including any costs such as extra stamp duty etc in purchasing a landed property in Hong Kong is insignificant to them. Her reason for not buying landed property in Hong Kong is rejected.

63.  Besides, I consider that the H’s draft application letter to Hong Kong Immigration saying his ideal immigration destination was Hong Kong was made in 2016, which is too remote from the 2 Material Dates.

64.  The W’s purchase of medical insurance with no savings or investment elements in 2016, specifically to cover expenses in Hong Kong, is not only remote but also insignificant. The H’s arrangement of his parents to apply for HKID card, which was approved in June 2024, is neither here nor there.

65.  More importantly, the parties’ past pattern of lives were mostly in Chongqing during the marriage and the daughters studied in PRC before going to Canada. Almost all of the rest of the family or their respective own families are residing in PRC, not here. W never alleged that a home has been established here.

66.  The parties had not engaged in any business or work here, save as to the W’s allegation of H’s opening and operation of substantial assets in offshore accounts, namely (a) a London Goldman Sachs account and (b) a Swiss Lombard account, by JianXin. This issue will be further discussed in the latter part of the judgment.

67.  Whilst W claims that the parties had planned to relocate to Hong Kong, which H disputes, she accepts that this plan was never carried out place. As Judge Herbert Au-Yeung (as he then was) stated in CN v YTW [2020] HKFC 146 in §13: -

“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.” (emphasis added)

68.  In short, I conclude that the parties’ social presence here is very weak and not substantial.

Economic presence

69.  In or around 2014, H engaged Ms Cathy Lai of John Tsang & Co., a Hong Kong CPA firm, to act as an advisor and assist in setting up JianXin (a BVI company) with a BVI agent. The entire process of establishing the company was conducted in Hong Kong, involving a solicitor and translation service. H also engaged another Hong Kong CPA firm, CL Com Ltd, to ensure compliance with BVI company regulations, such as completing the BVI questionnaire.

70.  Ms Yip SC leading Ms Yu for W accepted that the London Goldman Sachs account and the Swiss Lombard account held by JianXin are not Hong Kong accounts per se, but argued that they are operated through Hong Kong.

71.  The Swiss Lombard account was opened through a director employed by Lombard Hong Kong called Roy (金敏虎), who is and was the person who helped H and W to obtain the Immigration’s notice to confirm their permanent residence status in Hong Kong in June 2021 when they could not visit Hong Kong due to COVID-19 travel restriction.

72.  The London Goldman Sachs account was opened in December 2020. W contended that although it is a London-based account, it was opened and operated by the Goldman Sachs Hong Kong team, as indicated on all statement cover pages stating the Hong Kong office address.

73.  Previously, until late 2020 or early 2021, JianXin also had a Citi Private Bank Account, a Singapore Account, which was opened and operated in Hong Kong by H’s friend, Ms Li who served at Citibank Hong Kong office.

74.  H said in his affirmation that he did not have to come to Hong Kong to open such accounts and that the forms for the setting up of JianXin and its overseas banking accounts were completed by online communication. H has only visited the Lombard Odier office in Hong Kong once briefly. He has never visited the Goldman Sachs office in Hong Kong or met anyone from Goldman Sachs in Hong Kong but he admitted in his affirmation that “I opened overseas accounts through managers/ agents in Hong Kong…”.

75.  The opening forms of the London Goldman Sachs account provides inter alia: -

“1. Application for Opening of Bank Account…

…

You hereby apply to open one or more Deposit Accounts and Term Deposit Accounts with GSIB…

GSIB is a UK resident bank. The transfer of funds to GSIB is likely to be considered a remittance to the UK, for UK tax purposes.”

….

“You acknowledge that GSIB is a UK resident bank. The transfer of funds to GSIB is likely to be considered a remittance to the UK, for UK tax purposes.”

76.  The opening forms of the Swiss Lombard account provides that the application to open the same is with “Bank Lombard Odier & Co Ltd, Geneva” and further provides, inter alia:

“This Form shall be subject to Swiss law, and the venue shall be the Canton of Lombard Odier’s headquarters or branch office where the Client’s assets are deposited, without prejudice to the right of appeal to the Swiss Federal Court as provided by law.”

77.  It is trite that the situs of an asset is the place where an asset is considered to be located for legal purposes. In Re Guangdong International Trust & Investment Corp Hong Kong (Holdings) Ltd [2018] 5 HKLRD 396, Harris J held at §24: -

“The RMB Asset [defined in §4(5) to be cash in a Mainland bank account] is a chose in action governed by Mainland law and its use is thus properly subject to restrictions under Mainland law:

In determining the situs of a chose in action (such as the balance of a bank account, the general rule is that they are situate in the country where they are properly recoverable or can be enforced. The lex situs in turn, will apply when determining entitlement to the chose in action, and how such entitlement is to be dealt with. (Footnotes omitted).

The contractual right to receive payment of a debt is an item of property, that is to say, a chose in action. It can be transferred by the creditor to a third party, but the validity of the transfer necessarily depends upon the lex situs, because the courts of the country where the debt is have jurisdiction over the title to it.” (emphasis added)

78.  No matter whether the accounts held by JianXin are open online or open through managers/agents in Hong Kong, the mode of opening is not important. The crux is that the situs of these accounts are all located overseas.

79.  The issue is therefore whether H operated these accounts in Hong Kong or through the teams or managers of the respective financial institutions based in Hong Kong as alleged by W. If yes, whether such operations together with the other Hong Kong economic connections can be regarded as substantial economic presence.

80.  W did produce some exhibits[3] in her affirmation showing that in 2015, H appeared to transfer some money from his personal accounts in Hong Kong to the accounts held by JianXin. However, these 2 transfers were done long time ago, ie at least over 6 to 7 years before the 2 Material Dates.

81.  Besides, H said[4] that the operation of JianXin and its accounts are by and large done online, not in Hong Kong. Nowadays, common sense tells especially during and after Covid-19, people can easily do all bank transfers and/or make payments online without attending the branches personally. In my view, as burden is always on W, she fails to satisfy me that there is sufficient evidence to prove H operated these accounts in Hong Kong or through the teams or managers of the respective financial institutions based in Hong Kong. I consider that H is well capable to operate JianXin and its accounts online at anywhere, not necessary in Hong Kong.

82.  Mr Yim and Ms Chong for H are very helpful and rightly summarised the values of H’s assets in the PRC, Hong Kong and other foreign jurisdictions (i.e. London and Switzerland) as follows: -

PRC assets	Over RMB 122,520,000 to 129,000,000
Hong Kong assets	~HK$13,448,149.07
JianXin’s assets (which are outside Hong Kong)	~HK$376,000,000 to HK$380,000,000

83.  Even taking W’s calculation to the highest, H’s HK assets are only a drop in the ocean, accounting for about 3% of all of H’s assets.

84.  H has never maintained any credit cards in Hong Kong. He has previously used Hong Kong addresses of friends as correspondence address in the account opening form the Swiss Lombard account and his DBS bank account.

85.  Neither party has ever paid any kind of taxes, received any salary, income or contributed to MPF in Hong Kong

86.  In the circumstances, I conclude that the parties’ economic presence here is very weak and not substantial.

Comparison of parties’ connections in PRC and Hong Kong

87.  The Court of Appeal held (§9.8) in ZC v CN that connecting factors to Hong Kong may be contrasted with those elsewhere to see whether the Hong Kong connection is substantial.

88.  In the present case, comparing the assets held in Hong Kong and elsewhere by the parties, the assets in Hong Kong are comparatively not substantial when looking at the totality of H and W’s assets. The parties owned and own 3 landed properties including the former matrimonial home in Chongqing purchased in 2018, and a car parking space in Chongqing etc, but no landed property here. Schooling of the daughters was in Chongqing not here prior to their moving to Canada in August 2023. Both H and W’s parents have remained residing in Chongqing at all material times though H’s parents have HKID cards. There is no evidence of the parties having any relatives in Hong Kong.

89.  Bearing in mind that one can have substantial connections in more than one place, I have no doubt to find that the parties’ respective connections in PRC are obviously much more substantial than that in Hong Kong.

Conclusion on “substantial connection”

90.  Having carefully considered all the relevant circumstances and taking a holistic view of the above factors including the parties’ physical, social and economic presence, I find as a fact that the parties’ presence in Hong Kong are of a transitory nature and that neither party had a substantial connection to Hong Kong at either the 2 Material Dates. As the jurisdictional requirement is not satisfied, the Part IIA leave granted by me on 22 July 2024 shall be set aside and these proceedings ought to be dismissed for want of jurisdiction.

Whether Part IIA leave shall be set aside

91.  Indeed, it is unnecessary for me to deal with this issue. However, for the sake of completeness and in case I wrong on the issue of substantial connection, I shall continue to deal with the issue of setting aside Part IIA leave.

92.  Mr Yim and Ms Chong for H submitted that H’s application to set aside is based on the principles laid down in the recently handed down decision of the United Kingdom Supreme Court (“UKSC”) in Potanina v Potanin [2024] AC 1063 and in particular, on two aspects of material non-disclosure by W.

Latest approach as laid down by the majority in Potanina

93.  The brief facts of the Potanina’s case are that the wife, post-divorce in Russia, sought leave to commence financial relief in England and Wales under Part III of the Matrimonial and Family Proceedings Act 1984 (“MFPA”). Cohen J in the first instance granted leave to the wife and the husband successfully applied to set aside the wife’s leave to apply for financial relief before the learned judge. But the UK Court of Appeal reinstated it, requiring the husband to show a “knockout blow” to set aside such leave as required in the UKSC’s judgment of Agbaje v Agbaje [2010] UKSC 13 (an unanimous decision of UKSC 5 justices). The “knockout blow” is a high threshold test requiring respondents to demonstrate compelling reasons like material misdirection or new decisive authority to set aside leave. On appeal, the UK Supreme Court by a 3:2 majority rejected the “knockout blow” requirement for setting aside leave. The majority held that before an order requested by one party is made, the other party adversely affected must have a fair opportunity to be heard. The practice of demanding a high threshold like a “compelling reason” or “knockout blow” was found to undermine procedural fairness. The dissenting opinion supported keeping the “knockout blow” test, citing the established nature of the test and concerns about increased preliminary litigation.

94.  Mr Yim and Ms Chong for H submitted, which I agree and it seems Ms Yip SC leading Ms Yu for W did not challenge, that:

i.  MPPO Part IIA is based on, and is in material respects identical to, Part III of the MFPA: SPH v SA (2014) 17 HKCFAR 364 §56;

ii.  In C v H, Poon J (as he then was) exhibited an annex, setting out the corresponding sections under MPPO Part IIA to those under MFPA Part III and observed in §26 that while MPPO Part IIA does not copy MFPA Part III verbatim, “for all intents and purpose, the substance is just the same”;

iii.  Hong Kong courts have been consistently referring to English authorities on the interpretation and application of MFPA Part III. The Court of Final Appeal in SPH v SA in §§56 and 60, for example, cited with approval the UKSC’s judgment of Agbaje v Agbaje.

95.  Given the similarity between the two regimes, I shall adopt the latest approach as laid down by the majority in Potanina, per Lords Lloyd-Jones, Leggatt and Lady Rose JJSC, which in effect abolished the high “knockout blow” threshold for setting aside Part II A leave as required in Agbaje.

96.  The UKSC in Potanina confirmed that when dealing with an application to set aside ex parte leave, the burden is still on the applicant for financial relief, ie W in the present case, to show leave ought to be granted. The UKSC further clarified that, on a set-aside application, the court must decide “afresh”, “in all circumstances”, “having regard in particular to the matters specified in section 16(2)” (equivalent section to our s 29AF(2) of MPPO), and “after hearing arguments from both sides”, whether to grant leave for financial relief: at 1098E-F §92; at 1110D §98.

97.  Lord Leggatt JSC expressly pointed out in §89 that “some clarification is called for” concerning the threshold stated in Agbaje and that “the threshold is higher than merely satisfying the court that the claim is not totally without merit or abusive”. The learned justice continued to say:

“92. …… there is a substantial (in the sense of solid) basis for saying that in all the circumstances of the case, and having regard in particular to the matters specified in section 16(2), it would be appropriate for an order for financial relief to be made by a court in England and Wales. In making this assessment, it will be necessary to take into account whether there is a real prospect that further material supporting the applicant’s case would emerge, through disclosure or otherwise, if the case were to proceed to a substantive hearing. (emphasis added)

……

98. …………The true position is that on an application, such as the husband made here, under FPR r 18.11 to set aside an order made without notice, the court is required to decide afresh, after hearing argument from both sides, whether the order should be made or not. There is no requirement for a party applying under FPR r 18.11 to set aside leave to demonstrate a “knock-out blow”, or a compelling reason why the court should exercise the power to set aside, or that the court was materially misled. The onus remains on the applicant for leave to satisfy the court that there is substantial ground for the making of an application for financial relief under Part III.” (emphasis added)

Considering W’s application for Part II A leave afresh

98.  I agree with W’s submission that understanding the nature of a Part IIA award is also relevant to the Court’s consideration of the W’s application for Part II A leave afresh.

99.  Part IIA allows this Court to supplement the order of a foreign court: Agbaje at 670B-C §54. But, it is not the law to intervene only to the minimum extent necessary to remedy the injustice, nor to top up to the extent of equating with a local award following a local divorce: Agbaje at 673D-H §62-65. It is also not necessary to show any hardship or injustice under the foreign divorce as pre-requisite to apply for Part IIA reliefs, but if such factor is present, it may make it appropriate, in the light of all the circumstances, for an order to be made: Agbaje at 673C §61, 675H-676A §72.

100.  I now go through the factors listed in s 29AF(2) MPPO one by one below.

101.  Section 29AF(2)(a) concerns the parties’ connection with Hong Kong. As discussed above, I find that their connections here are not substantial.

102.  Section 29AF(2)(b) concerns their connection with PRC where they got married and divorce. As discussed above, I find that their connections with PRC are very substantial.

103.  Section 29AF(2)(c) concerns their connection with other places, such as Canada where the daughters are currently studying, London and Switzerland where the London Goldman Sachs account and the Swiss Lombard account held by JianXin are respectively located. There is no or very little evidence before me that their connections with these 3 places are significant or substantial, and similarly, for other places as mentioned in §8 above.

104.  Section 29AF(2)(d) and (e) respectively concern the financial benefit received by the applicant or a child of the family by virtue of any agreement or the operation of law outside Hong Kong, and the order for financial relief made by a competent authority outside Hong Kong. Pursuant to the PRC Divorce Agreement registered in the PRC court, H shall be responsible for the daughters’ maintenance under Clause 2 thereof, including:

(a)  paying RMB 150,000 per year as each daughter’s living expenses until they finish schooling;

(b)  settling the daughters’ school fees and insurance premium;

(c)  reimbursing W for other education-related expenses that the parties agree on and medical bills;

(d)  providing housing in the event the daughters study abroad;

(e)  paying for other non-living expenses.

105.  Clause 3(1) provides that W shall continue to hold the Chongqing property and car parking space purchased in her name by H; Clause 3(2) provides that H shall let W and the daughters reside in the former matrimonial home in PRC until W remarries; Clause 3.4 provides that H shall pay a lump sum of RMB 12,000,000 to W; and Clauses 3(6) and (7) provide that H shall pay RMB200,000 to W as maintenance every year until W remarries or passes away, and continue to pay for her insurance.

106.  As the burden lies on W to prove otherwise, I am satisfied that W and the 2 daughters had received adequate financial benefit to meet their needs under the PRC Divorce Agreement.

107.  Indeed, W’s only complaint with the PRC Divorce Agreement (aside from the fact that she did not obtain any share of H’s Hong Kong assets) is that H did not pay the daughters’ expenses such as plane tickets, ECA-associated expenses etc. It is also noteworthy that the PRC Divorce Agreement contains a jurisdiction clause for any disputes to be resolved in the PRC with PRC law being applicable. I am of the view that if W has issues with the interpretation of whether certain expenses fall within the clauses of the PRC Divorce Agreement, the PRC Court must be the appropriate forum to determine the same, but not the Hong Kong court.

108.  Apart from the above, I am satisfied that most of the terms in the PRC Divorce Agreement have been duly complied with by H.

109.  Section 29AF(2)(f) concerns the right that W has to apply for financial relief in the PRC and the reason why she has not exercised that right. W admits that she has the right to apply for financial relief in the Mainland but claims to be unable to exercise such right as she is unaware of the exact extent of H’s assets. She relies on the PRC legal opinion prepared by a PRC lawyer (“PRC Opinion”), who concluded that the PRC Court may not exercise jurisdiction to distribute such assets as she considered that W may not be able to prove the same.

110.  In my view, at the time of preparing the PRC Opinion, the PRC lawyer was provided only with a copy of the PRC Divorce Agreement and very limited information of the numbers/bank cards of H’s bank accounts and the Classification Questionnaire of JianXin. After the commencement of these proceedings, H had produced a lot of his financial documents and information to W. I consider that the present situation has changed substantially and is entirely different from the time when the PRC Opinion was given. Now, W is almost fully aware of the exact extent and locations of H’s assets.

111.  Although W has to show H’s habitual residence in PRC for more than a year for the purpose of commencing legal action in PRC against him according to the PRC Opinion, I consider that she has no practical difficulty to prove it as H has already admitted in his affirmations.

112.  At the hearing, Ms Yip SC leading Ms Yu for W quoted a Chongqing lawyer’s Explanatory Note (情況說明)[5] which stated lawyer agency fees are about 5% of W’s claim in PRC and which was a sum not affordable by W. In my view, the question as to whether the relevant fees could be afforded by a lay client is not a legal opinion given by the lawyer. Of course, it is my understanding of the legal opinion which should be given by a Hong Kong lawyer under the Hong Kong law but not a PRC lawyer under the PRC law.

113.  Ms Yip SC leading Ms Yu further contended that W would face severe hardship and unfairness if leave is not granted since W’s assets following the PRC divorce only account for approximately 3.22% of the total pot after a 14-year marriage with 2 daughters. As mentioned earlier, Part IIA allows this Court to supplement the order of a foreign court. It is not the law to intervene only to the minimum extent necessary to remedy the injustice, nor to top up to the extent of equating with a local award following a local divorce. It is also not necessary to show any hardship or injustice under the foreign divorce as pre-requisite to apply for Part IIA reliefs, but if such factor is present, it may make it appropriate, in the light of all the circumstances, for an order to be made.

114.  In my view, since W should be able and has no significant practical difficulties to apply for financial relief in the Mainland again, there is no severe hardship and unfairness present in this case.

115.  Section 29AF(2)(g) concerns the availability of any property in Hong Kong which an order for financial relief in favour of W may be made. As discussed above, even taking W’s calculation to the highest, H’s HK assets, namely his retail bank accounts, are only about 3% of all of H’s assets. The availability of H’s HK assets is minimal and insignificant.

116.  It is noteworthy that in W’s 1st affirmation filed in April 2024, she considered H having substantial assets in Hong Kong. Indeed, it is one of the main reasons for me to grant Part II A leave at the ex parte hearing on 22 July 2024. Subsequently, W admitted that JianXin’s accounts are located outside of Hong Kong in her supporting affirmation and skeleton submissions for her application for the Injunction and Disclosure Order. W explained that she only afterwards came to know that JianXin’s accounts are not located here. In my view, even if that is the case, she still has the duty to inform this court of her explanation as the situs of H’s assets must be an important factor under this sub-section.

117.  Section 29AF(2)(h) concerns the extent to which any order for financial relief is likely to be enforceable. W has not adduced any evidence as to how to enforce the Part II A award of the Hong Kong Court in BVI, London and/or Switzerland, or explain why the Hong Kong Court ought to make such order in relation to foreign assets. Since the burden is on W, she fails to prove that the Part II A award of the Hong Kong Court can be enforced in BVI, London and/or Switzerland.

118.  Section 29AF(2)(i) concerns the length of time that has elapsed since the date of the divorce. There was a lapse of around 1.5 years (from December 2022 to April 2024), after the PRC divorce, before W applied for Part II A leave. The main reason as stated in W’s 1st affirmation filed in April 2024, she said that only in the end-2023, she came to know that she have a right to apply for financial provision based on a PRC divorce after consulting her Hong Kong lawyer. I have great reservation as to this explanation. As W kept alleging and considered herself having substantial connection here, she ought to seek legal advice here as early as possible after the PRC divorce or even before signing the PRC Divorce Agreement. Her ignorance or delay in seeking legal advice here for a year is unacceptable.

Conclusion after considering W’s application afresh

119.  The merits requirement under s 29AC of MPPO states that the Court must not grant leave unless there is “substantial ground” for making an application for financial relief. I have to bear in mind and repeat that the burden is on W to show Part II A leave ought to be granted.

120.  After carefully considering the W’s application for Part II A leave afresh and taking into account all circumstances including the factors as listed in s 29AF(2) MPPO, I come to conclusion that leave shall not be granted to W under Part II A. To borrow the phrase from ZC v CN, this court shall discourage the ‘fly in’ and ‘fly out’ application for Part II A leave.

Material non-disclosure alleged by H

121.  Though unnecessary, I shall deal with H’s arguments on W’s material non-disclosure for completeness.

122.  Mr Yim and Ms Chong for H relied on a passage of Lord Leggatt JSC in Potanina that material non-disclosure is a ground to set aside ex parte Part IIA leave. His Lordship said:-

“35. … Furthermore, except where an order finally disposes of a case, a party is always entitled to have an order set aside even after an inter partes hearing if it can be shown that the order was made as a result of the court being misled…” (emphasis added)

123.  Apart from W’s failure or delay to inform the court that the relevant private bank accounts held by JianXin BVI were non-Hong Kong accounts, H further argues that W failed to disclose 2 settlement agreements produced by H, contents of which are the same except that:

(a)  “1^st Agreement”: Signed by the parties but undated;

(b)  “2^nd Agreement”: Signed and dated 10 November 2016, but W provided a handwriting analysis report showing the signature was not hers and alleged it is a forgery.

124.  W thereafter presented another agreement also dated 10 November 2016 with different terms from the 1^st and 2^nd Agreements (“3^rd Agreement”) in her affirmation.

125.  On the other hand, Ms Yip S C leading Ms Yu submitted that following Potanina, whether there had been material non-disclosure on the part of the applicant is irrelevant, as the Court will consider all the circumstances afresh. I am of the view that it seems all these are academic arguments. Theoretically, even if leave is set aside on the ground of material non-disclosure, Mr Yim and Ms Chong accepted that the court still has the jurisdiction to re-grant the leave after considering all materials including those materials not disclosed by W as well as hearing the full submissions made by the parties. In my view, the legal principles governing the re-grant of the leave and considering the leave afresh should be more or less the same.

126.  Besides, the authenticities of these 3 agreement are not only in serious dispute, the circumstances under which they were signed by the parties are not entirely clear. I do not think that I am able to resolve it by way of affidavit at this stage. However, I consider that W still has the duty to disclose at least the 3^rd Agreement at the time of her ex-parte application for Part II A leave before me. In any event, I do not think that it will affect the outcome of my decision after considering her application afresh.

Order

127.  To sum up, I find that neither party has substantial connection with Hong Kong. Even if either of them has, W fails to discharge the burden of proof that there is “substantial ground” for making an application for financial relief under Part II A. I now make an order as follows:

i.  Leave granted by me on 22 July 2024 be set aside;

ii.  The originating summons issued by W on 17 September 2024 be dismissed for want of jurisdiction; and

iii.  Injunction order granted by me on 27 September 2024 which was subsequently continued and varied on 11 November 2024, 25 April 2025 and 22 August 2025 be discharged.

128.  I fail to see why costs shall not follow event. I make an costs order nisi that W do pay H all costs of and incidental to these proceedings including H’s Summons filed on 6 November 2024, W’s Summons filed on 2 October 2024, and all costs reserved, if any, with certificate for 2 Counsel to be taxed if not agreed. Unless any party applies to vary the same by way of summons within 14 days, it shall become absolute.

129.  As to the W’s Joinder Summons filed 4 March 2025 and the hearing fixed on 10 October 2025, I direct all the parties including the 2^nd and 3^rd respondents to jointly write to this court for agreed directions, and in case some directions cannot be agreed, briefly set out the reasons on or before 3 October 2025.

130.  Lastly, I must thank all counsel for their valuable assistance and helpful submissions to the court.