C v. L

FCMC 15156 /2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 15156 OF 2013

----------------------------

----------------------------

-------------------------------------

DECISION
(Domicile)

-------------------------------------

Introduction

1. There is one only issue that calls for my determination in this hearing: whether the petitioner (“husband”) was domiciled in Hong Kong as the date of the petition, ie 24 October 2013.  If he was not domiciled in Hong Kong on that date, this court simply has no jurisdiction in these proceedings.

2. The issue arose during one of the call-over hearings when the chronology prepared by the husband’s then solicitors revealed that he has been primarily living in China at least since the marriage and that the marriage has never been conducted within this jurisdiction.  I therefore took the initiative to refer both parties to the Court of Appeal judgement in W v C [2013] 2 HKLR 592 (English translation version [2013] 2 HKLR 602) (para 23 of the judgment refers) and raised my concern of whether the husband was domicile in Hong Kong as at the date of the petition. I gave directions for both parties to file their affirmations on this issue and reminded counsel for the husband that his movement records at all material times should be disclosed.

3. Today is the return date for argument of the issue. Unfortunately, both parties have decided to act in person in today’s hearing.  Further, the husband has failed to disclose his movement records and has even declined the court’s invitation to adjourn the matter for him to obtain the same from the Immigration Department. As such, I cannot see why I should not proceed with the hearing as scheduled.

4. Although this hearing is conducted in Chinese, both parties have helpfully agreed that my decision can be given in English, provided that Chinese translation of the same is made available to the parties upon request.

Background facts

5. For easy discussion, I will set out in a chronological table the following indisputable or undisputed facts, which are largely gleaned from the pleadings and other court documents such as Form Es, social investigation report(s):

Date	Events
5/1968	Husband was born in China.
11/1968	Wife was born in China.
1990	Wife graduated from Hunan Finance University.
1991	Husband graduated from Tianjian University. He then worked in Shenzhen.
1993	Husband (at the age of about 25) emigrated to Hong Kong from China, as his father had obtained residency status in Hong Kong due to work. He started working in Hong Kong.
1999	Husband was deployed to work in Guangzhou. There, he met the wife and soon started cohabitation.
2000	Husband purchased Shenzhen property but it was later sold in/about 2005.
22/6/2001	Married in Hong Kong.
	After marriage, husband was deployed to work in Beijing. The family moved to live in Beijing.
8/3/2002	Son was born in Guangzhou.
7/2002	Husband purchased Guangzhou property in the joint names of the wife and the son.
2005	Husband became (and still is) the general manager of Beijing AH Co Ltd.
	Wife and son left Beijing and moved to live in Guangzhou.
8/2006	Wife and son obtained their single-way permits and came to Hong Kong for processing their identification documents. They returned to China after the said processing was completed.
10/2006	Husband purchased Property A in Beijing and claims that he holds it in trust for Beijing AH Co Ltd.
5/2008	Husband purchased Property B in Beijing and claims that he holds it in trust for Beijing AH Co Ltd.
About mid-2008	Wife and son moved to Beijing where son started his primary education.
2/2011	Husband purchased Property C in Hainan Province and claims that he holds it in trust for Beijing AH Co Ltd.
24/10/2013	Date of the petition (Husband claims that he is domiciled in Hong Kong).
24/4/2014	Wife’s Form E.
28/4/2014	Husband’s Form E.

Applicable legal principles

6. Section 3 Matrimonial Causes Ordinance, Cap 179 (“MCO”) provides that the divorce jurisdiction is based on the following grounds:

“(a) Either of the parties to the marriage was domiciled in Hong Kong at the date of the petition or application;

(b) Either of the parties to the marriage was habitually resident in Hong Kong throughout the period of three years immediately preceding the date of the petition or application; or

(c) Either of the parties to the marriage had a substantial connection with Hong Kong at the date of the petition or application.” (my emphasis)

7. The statutory provisions on domicile are contained in the Domicile Ordinance, Cap 596 ("DO").  Section 3 of provides that:

“(1) Every individual has a domicile.

(2) No individual, has at the same time and for the same purpose, more than one domicile.

(3) Where the domicile of an individual is in issue before any court in Hong Kong, that court shall determine the issue in accordance with the law of Hong Kong.”

8. Section 12 of the DO states that the standard of proof of any fact which needs to be proved is a balance of probabilities.

9. In Re Ip Pui Man Nina [2011] 3 HKLRD 299, Au J cited the judgment of Deputy Judge L. Chan (as he then was) in Re Ku Chu Keung (a debtor) [2007] 2 HKLRD 292 (English translation version unreported, HCB 3394/2005, 12 June 2006) and succinctly summarised the legal principles on domicile at para 10 as follows:

“(1) ‘Domicile’ is a legal concept distinct from ‘permanent home’. The requirements of domicile go beyond those of permanent home. A person who desires to acquire a domicile in a country must intend to reside in it permanently or indefinitely (para 24).

(2) An independent person can acquire a domicile of a place by, and only by, residing there with the intention to reside there permanently or indefinitely (para 29).

(3) In determining whether a person has the intention to reside permanently or indefinitely in a country, the court must have regard to the motive for which he has taken up residence there. To acquire a domicile in a country, a person must freely choose to reside there and must not reside there because he is prescribed or dictated by external factors such as the duties of office, the demands of creditors or the need to seek medical treatment. If a person has a special purpose for going to and staying in a country and he will leave that country once the purpose is achieved, then he lacks the intention to stay in that country as required by law and hence cannot acquire a domicile in that country (para 33).

(4) The existing domicile of a person is deemed to continue until it is proved that he has acquired a new domicile; and he who asserts a change of domicile bears the burden of proving the truth of the assertion (para 37).

(5) An abandonment or change of domicile is a very serious issue and satisfactory evidence is needed to prove an intention to change a domicile (para 40, citing the House of Lords decision in Marchioness of Huntly and Anor v. Gaskell and Ors [1906] AC 56, at 66-67).” (my emphasis)

10. Although Re Ip Pui Man Nina (supra) is a case on bankruptcy, I beg to say that his Lordship’s above summary of the legal principles should have a general application to the family law.

11. As to an individual’s intention whether to make a home in a particular place, Chu DJ (as she then was) has conveniently set out a list of factors in her judgment of Y v W,  FCMC1847/2011. The list was approved by the Court of Appeal in W v C (supra). They are: 

“(i) Length of residence;

(ii) Condition of residence: Purchased property? Leased property? Furnished lodgings? Hotels?

(iii) Marriage with a local partner;

(iv) Whereabouts of the family;

(v) Business interest;

(vi) Whereabouts of personal belongings;

(vii) Whereabouts of the person’s property and investments;

(viii) The fact of naturalisation;

(ix) Decision made as to the nationality of the children;

(x) Education of the children;

(xi) Memberships of clubs or religious associations;

(xii) Place of work;

(xiii)  Relation between a man and his family.”   

The parties’ respective case

12. In his affirmation dated 25 September 2014 but affirmed today, the husband says that his domicile is in Hong Kong mainly because:

(1) He holds a Hong Kong identity card;

(2) He views Hong Kong as his permanent home. He was living in Hong Kong from 1993 to 2005; he left Hong Kong for Beijing due to work only; his father has been residing in Hong Kong for over 20 years.

13. In addition, he puts forward arguments such as the legal system in Hong Kong offers better protection to children and a bankrupt than in China.[1]  I do not find it necessary to elaborate on those arguments, for they are not relevant to the issue of domicile in this hearing.

14. In her affirmation dated 10 October 2014, the wife agrees that W v C (supra) applies to this case. She deposes that neither the husband nor she was domiciled in Hong Kong and that their marriage has never been conducted in this jurisdiction. The husband’s work, business and assets (including landed properties) are all situate in Beijing. Their only son is now living and studying in Beijing as well.

Discussion

15. Although the husband holds a Hong Kong identity card, it does not mean that he was domiciled in Hong Kong as at the date of the petition. Like the couple in W v C (supra), the parties herein have never established their home together in Hong Kong. They have never conducted their marriage in Hong Kong. In fact, the affirmation evidence shows that the wife and their son have never lived in Hong Kong, though they may have visited Hong Kong from time to time for specific purposes, eg for application of identification documents.

16. The husband obtained his Hong Kong citizen status at the age of about 25 when he came from China to Hong Kong for reunion with his father. He stayed and worked in Hong Kong for about 8 years only until 2001. Since at least 2001 and/or the marriage, he has been living and working in China, mainly Beijing, up to now. According to the chronology prepared by his then solicitors (attached to the First Appointment bundle dated 14 May 2014), Beijing has been his primary living place (主要居住地) since 2001. 

17. The wife and their son are also living in Beijing now. Their son is studying primary school in Beijing.

18. According to the Form E of the husband, he does not own any property in Hong Kong. He holds only a HSBC account in Hong Kong, but the bank statements disclosed so far (between March 2013 and February 2014) do not reveal any meaningful transactions sufficient enough to  support his claim of domicile in Hong Kong.

19. On the other hand, he bought a property with the wife in Shenzhen as early as 2000. He later purchased 3 other properties in Beijing or Hainan Province in his own name between 2006 and 2011, though it is fair to point out that he alleges that he is holding these 3 properties in trust for Beijing AH Co Ltd. Whether there is really such a trust arrangement in place is yet to be determined and will surely be investigated by the wife at the discovery stage to come. But the affirmation evidence tends to show that he has preferred to keep landed properties in China rather than in Hong Kong. Such evidence does not sit well together with his allegation on domicile in Hong Kong.

20. There are 2 more pieces of facts/evidence that is important in my deliberation on this issue.

21. First, it is recalled that in the call-over hearing when I first raised the issue of domicile to the parties, counsel for the husband attempted to submit that the husband is still domiciled in Hong Kong, as he returns to the jurisdiction to visit his father for 4 to 5 days bi-monthly.  Needless to say, this line of submission cannot be taken as his evidence unless and until he deposes the same in his affirmation. However, the affirmation of the husband is totally silent on this alleged arrangement. In my view, it is very telling that he does not see it fit to expressly affirm this alleged arrangement in his own affirmation. It is even more telling that he chooses not to disclose his movement records and declines the court’s invitation to adjourn today’s hearing for the purpose of obtaining the same.

22. Second but not of the least importance, the wife reveals, and it is admitted by the husband in his Form E, that he is all along using 2 different Chinese names, one in Hong Kong and another in China. The name he uses in Hong Kong and as shown in his Hong Kong identity card is with the last Chinese character written as “亦”, while the name he uses in China is with the last Chinese character written as “毅”.  Importantly, the husband is  holding a PRC citizen identification card (公民身份證), which will be issued only to:

(1) Chinese citizen of 16 years old or above and living in China; or

(2) Comrades from Hong Kong, Macau or Taiwan who have moved to settle down (定居) in China.[2]

23. The PRC citizen identification card states that it is valid from 6 October 2004 to 6 October 2024.  

24. In my view, the keeping of a different name and holding a valid PRC citizen identification card in China by the husband is a clear indicator of his intention not to treat Hong Kong as his domicile at least since or about 2004.

25. I am bound to say that the combined effect of all the above factors can only lead to one conclusion, ie the husband was not domiciled in Hong Kong as at the date of the petition.

Conclusion

26. Due to the matters set out above, I find that the husband was not domiciled in Hong Kong as at the date of the petition. As such, section 3 of the MCO cannot be satisfied and this court has no jurisdiction in these proceedings. The petition must be dismissed in the circumstances.

27. Accordingly,  I will make the following order:

(1) The petition be dismissed;

(2) There be no order as to costs of the whole proceedings (including any costs reserved). This is a nisi order which will become absolute within 14 days from the date of this decision, unless there is an application to vary the said costs order nisi.

28. For the benefit of the parties who are now acting in person, I shall direct that the order in para 27 be written in Chinese.

[1] The husband alleges that he is now in dire financial difficulty and may become a bankrupt in due course.

[2] See sections 2 and 9 of the PRC’s Citizens Identification Cards Ordinance 《中華人民共和國居民身份證法》(www.gov.cn)