S, A v. T, M

FCMC 3577 / 2024

[2025] HKFC 135

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 3577 OF 2024

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

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

______________________________________

DECISION
(Leave to Appeal)

_______________________________________

A.  Introduction

1.  This is the Respondent’s (“R”) application by Summons dated 5 June 2025 (“Summons”) for leave to appeal against the decision made on 22 May 2025 (“Decision”) [2025] HKFC 88, whereby it was held that the Petitioner (“P”) has established a substantial connection with Hong Kong as at the date of the Petition which gives rise to this court’s jurisdiction to hear the Petition, and R has not shown that New Jersey is a forum clearly or distinctly more appropriate than Hong Kong to deal with the matter arising in the Petition.

B.  Legal Principles

2.  Section 63A of the District Court Ordinance (Cap. 336) stipulates that leave to appeal should not be granted unless there is a reasonable prospect of success, or there is some other reason in the interests of justice that leave should be given. A reasonable prospect of success involves the notion of the prospect of success must be more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011, 7 September 2011 §§8 – 9.

3.  Even if the Court takes the view that there is a reasonable prospect of success, the Court retains a discretion as to whether to grant leave: Ho Yuen Ki Winnie v Ho Hung Sun Stanley, HCA 391/2006.

4.  Where an appeal is against the findings of fact or is involved the exercise of discretion, there is a higher threshold. The appellant must show that the decision is plainly wrong, or that the judge made some error of law, or has taken into account irrelevant matters or omitted to have regard to relevant matters, or that the discretion was not exercised at all. The appellant must identify palpable errors in the judgment. The assertion that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion because of the points advanced in the submissions are not errors coming within that category: See TAC v VDC nee VDM, HCMP 2198/2012, 5 December 2012; China Gold Finance Limited v CIL Holdings Limited, CACV 11/2015, 27 November 2015; NLC v YMF [2022] HKCA 1310, §16.

5.  It is well settled that the appellate process is not designed to give a litigant a platform for regurgitating his submissions on the evidence and factual aspects of the case with the hope that the appellate judges may come to a different view. This was expounded by the Court of Appeal in China Gold Finance Limited v CIL Holdings Limited:

“11. It is well settled that in respect of findings of fact, this court can only intervene when we are satisfied that the findings by the primary judge is plainly wrong: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 is often cited and applied in this court.

……

14. …. In our judicial system, the appellate process is not designed to give a litigant (or his counsel) a platform for regurgitating his closing submissions on the evidence and factual aspects of the case again with the hope that the appellate judges may come to a different view to that of the primary judge. ……

15. In an appeal, the court of appeal should focus on the question whether the primary judge has fallen in palpable errors which could give rise to grounds for intervention by the appellate court. As explained in the cases, it is not germane that judges in this court may reach a different conclusion from that of the judge. There are many areas, particularly those in relation to findings of fact, where judges can reasonably reach different conclusions from each other. That would not be a ground for intervention.

16. Thus, in an appeal, it is not helpful if counsel and litigant (acted in person) only repeat submissions already advanced and considered by the primary judge at the trial. The starting point should be the judgment of the primary judge and the identification of palpable errors (which must be errors of such nature which warrants intervention from this court) in the judgment. The mere assertion that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion because of points advanced in the closing submissions below are not errors coming within that category.”

C.  R’s Intended Grounds of Appeal have no reasonable prospect of success

6.  R put forward 10 intended grounds in her Draft Notice of Appeal (“DNOA”). For the reasons set out below, I find that there is no reasonable prospect of success in these intended grounds, and there is no other reason in the interests of justice that leave should be given.

Ground 1

7.  Insofar as R was submitting that there is a test for exceptionality, such submission must be rejected as the Court of Appeal has held in JQ v CLH at §24 that:

“It is important to emphasise, however, that there is only one statutory test, or question, for determining whether the jurisdictional requirement under s.3(c) of the Ordinance is satisfied, namely, whether a party to the marriage had a substantial connection with Hong Kong at the time of the petition. There is not a separate category of parties without the presence of family in Hong Kong who have to satisfy the requirement of “exceptionality” before jurisdiction under s.3(c) can be established. We do not read the judgment of Cheung JA in ZC v CN as seeking to lay down any such principle. … A test based on “exceptionality” is not useful either, because it would only lead to further, fruitless debates on what may or may not be exceptional, or sufficiently exceptional. Ultimately, each case must be looked at on its own facts to determine whether a person had a substantial connection with Hong Kong at the material time.” (emphasis in bold added)

8.  The holding that P had a substantial (but not transitory) connection with Hong Kong as at the date of the Petition was made after consideration of all the evidence, including those repeated by R in the DNOA and her submissions. R failed to show that the findings of facts are plainly wrong.

Grounds 2, 3 & 9

9.  These are challenges against the finding of facts. R mainly repeated the evidence and arguments advanced at the hearing. To maintain proportionality in dealing with this application for leave to appeal, I shall not repeat or further deal with these matters. Suffice to note that R failed to satisfy the high threshold of showing the finding of facts in the Decision is plainly wrong.

10.  The mere assertion that the finding is against the weight of the evidence or that another conclusion should have been reached because of the points advanced in the submissions are not errors for invention by the appellant court: China Gold Finance Limited; JTMW v NAV [2021] HKFC 65.

11.  It is also timely to repeat the well known statement of Lord Hoffmann in Piglowska v Piglowska [1999] 1 WLR 1360 at 1372D-F (cited and applied by the Court of Final Appeal in Ting Kwok Keung v Tam Dick Yuen & others (2002) 5 HKCFAR 336, and the Court of Appeal in China Gold Finance Limited) that the finding of fact by a judge is inherently incomplete statement of the impression upon him or her:

“The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ... of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.”

12.  With respect to §2(c) of DNOA on the drawing of adverse inference against P for “litigation conduct” as advocated by R, R cited in this application NG v SG (Appeal: Non-Disclosure) [2012] 1 FLR 1211 §§11-12, §16 (viii). No authority was cited at the hearing for substantive argument. NG v SG does not assist R.

12.1.  NG v SG dealt with a party’s financial non-disclosure in ancillary relief proceedings. Further, R seemed to have ignored that §16(viii) in NG v SG was premised on cases where “the court is satisfied that the disclosure given by one party has been materially deficient” (see the opening sentence of §16). There was no finding that the disclosure was materially deficient.

12.2.  A judge is entitled to assess the weight of the evidence before it and make a finding of facts on the standard of balance of probabilities. P’s job required his frequent travels. P has explained in §22 of his affirmation the reasons for his working in London which was accepted by the court.

12.3.  Before the court is entitled to draw a particular inference, there must be some evidential basis adduced on the matter in question: Wisniewski v Central Manchester Health Authority [1998] PIQR 324, at 340. Even though (as Lord Sumption has expressed in Prest v Petrodel Resources Ltd [2013] UKSC 34 §44, an ancillary relief dispute) modification can be adopted in matrimonial matters, there remains the need to establish a reasonable basis for some hypothesis in the evidence or the inherent probabilities before a court can draw useful inferences from a party’s failure to rebut it.

12.4.  A judge “must guard against indulging in conjecture under the guise of drawing an inference where the primary evidence does not logically and reasonably justify the particular inference in question”: Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 §185; In the Matter of Moulin Global Eyecare Holdings Limited, HCCW 470/2015, 4 June 2008.

Ground 4

13.  I agree with counsel for P that Ground 4 is misconceived and misleading. At the hearing, the court has enquired with the parties the specific issues in children matters that are in dispute. P has confirmed through Counsel that he agreed to maintain the existing Children arrangements (including R has the custody, care and control of the Children and the arrangements on P’s access). P agreed to the conditions proposed by R on access, including family therapy if required, and P’s cohabitee not contacting the Children[1]. Counsel for R (after taking instruction) confirmed that R has no intention to vary the existing arrangements, and could not tell any other issues in the Children matters that would be in dispute.

14.  R failed to show how the harm that was said to have caused by P’s cohabitee to L would have any relevance to the issue of jurisdiction.

Ground 5

15.  The issues of bifurcation and the alleged lack of jurisdiction to determine the Children’s matters are new points that have not been raised at the substantive hearing. R has not provided any reason to justify her raising these new points at this stage: Flywin Co Ltd v Strong & Associates (2002) 5 HKCFAR 356. She shall not be allowed to do so.

16.  In any event, R’s allegation in Ground 5 that this court lacks jurisdiction “to determine the Children’s matters, make relevant orders relating to the Children and/or make a section 18 [MPPO] declaration” is unsubstantiated, and is in contradiction with the SJE’s evidence and R’s submissions at the hearing.

17.  Firstly, contrary to R’s allegation, the SJE had actually opined that New Jersey can enforce child support order made by Hong Kong court if it has jurisdiction (which this court has now found). The relevant part of the SJE report is as follows:

“So, if the court in Hong Kong has jurisdiction to make a determination on child support and New Jersey continues to have jurisdiction over that support order in accordance with UIFSA, New Jersey can enforce the child support order. Alternatively, any Hong Kong order on child support can be addressed through the Hague Convention on the International Recovery of Child Support and other forms of Family Maintenance to which the United States in a signatory.” [2] (emphasis in bold added)

18.  Secondly, the SJE opined that New Jersey may modify or review a child support order made by Hong Kong courts if appropriately registered[3]. This demonstrates that New Jersey recognises the jurisdiction of Hong Kong court to make child support order.

19.  The extract of the SJE report quoted in §5(c) of DNOA has unfortunately been taken out of the context. The entire paragraph in the SJE report is repeated below:

“However, New Jersey may modify an order/judgment entered by the court in Hong Kong regarding child support order under N.J.S.A. 2A:4-30.135 if appropriately registered. And courts in New Jersey may disregard child support orders when they cannot determine the basis for the amount of the child support set forth in the order, or where the child support is insufficient to support the children in New Jersey. Sajjad, supra. This is because the best interests of the children are paramount and a matter of public policy under the New Jersey court’s parens patriae doctrine, statute and case law. See, N.J.S.A. 9:2-1; see also, Levy v. Levy, 17 N.J.Misc. 324 (1939) (“The court may also make appropriate orders regarding the care, custody, education, and maintenance of children, whether the divorce was obtained in New Jersey or elsewhere.”) However, in Hachez v. Hachez, 124 N.J.Eq. 442, (E. & A.1938), which dealt with the question of child custody in the context of comity among nations, the court referred to the importance of protecting children, but indicated that “our courts will hold aloof when intervention is unnecessary for the welfare of the child.” Id. at 448. Therefore, if the New Jersey court reviews a Hong Kong court order for child support and determines it is appropriate under the facts for the support of the children in this matter, it will not disturb that order and will enforce it. If it does not, it may disregard the order and make its own determination on child support.”[4]

(emphasis in bold added)

20.  The SJE has opined that the New Jersey court will not disturb the Hong Kong court order for child support if it determines appropriate under the facts of the case.

21.  Thirdly, under the heading “Recognition and Enforcement of any Hong Kong Orders to be made related to the children and/or the finances issues”, the SJE opined that “Determinations regarding child custody in this matter made by the court in Hong Kong may be more difficult to enforce in New Jersey”[5] (emphasis in bold added).

22.  Counsel for R has fairly repeated this opinion (i.e. may be more difficult to enforce …) in the submission for the hearing in February 2025[6]. Nowhere did R suggest at the hearing that Hong Kong court does not have the jurisdiction to make the child order, nor that the Hong Kong court order on child custody cannot be enforced in New Jersey (albeit there might have difficulty in enforcement).

23.  The extracts of SJE report in §5(a) and (b) of DNOA, properly read in context, do not support Ground 5. The relevant part of the SJE report is recited below:

“It is the “home state” of the child that is paramount in making a determination as to which “state” has jurisdiction to make a determination regarding custody. Id. The “home state” of a child is that state within which the child has resided for six months prior to the start of the litigation seeking a determination of custody. N.J.S.A. 2:A34-65a. Given the facts presented in this matter, New Jersey is the home state of the parties’ children and any custody determination should be made by the New Jersey courts. If it is not, Respondent can challenge and seek to set aside any determination made by the Hong Kong Court on an interim or final basis and it is unlikely that a custody or parenting time order (or judgment) entered by the court in Hong Kong will be recognized or enforced by the New Jersey courts.”

24.  The SJE opined that because of the Children’s home state is in New Jersey, custody determination should be made by the New Jersey courts. If it is not, R can challenge and seek to set aside any determination made by the Hong Kong court. The unlikelihood of recognition or enforcement of Hong Kong custody or parenting time order by New Jersey was said in the situation where R seeks to set aside the Hong Kong order.

25.  Given the parties’ aforesaid agreement and confirmation on the Children arrangements, there is no conceivable reason for R to challenge or seek to set aside a determination based on their consent.

26.  The SJE said the New Jersey court “will not usually make a determination on custody and parenting time for a child over the age of 18 as they are considered an adult”.[7] On the issues of custody and parenting time (or access) for L (who is over the age of 18), New Jersey court cannot be said to be a forum clearly and distinctly more appropriate than Hong Kong court.

Ground 6

27.  R has not shown how the description of the parties’ assets in §74 of the Decision is incorrect.

28.  In R’s schedule of assets, the assets said to be located in the US are (a) joint investment accounts which has a nominal value of $41, pensions, stocks/shares and watches. Likewise, the assets said to be in Australia, Hong Kong, Europe, Singapore, New Zealand and Japan are largely under the categories of bank accounts, investment, stocks/shares (the landed properties in India and Portugal excepted).

29.  No evidence was adduced by R to support the accuracy of this schedule. P disputed its accuracy and submitted that assets listed under his name as being in the US are in fact elsewhere, such as some stocks/shares and the watches. Having regard to the dispute in the accuracy of the schedule and the lack of primary supporting evidence, the schedule of assets is of little assistance, likewise, the weight that can be placed on the alleged location of the parties’ assets is minimal.

Grounds 7 & 8

30.  As it was held in §82 of the Decision, R’s claim on forum non conveniens was dismissed on her failure to show that New Jersey is a forum clearly or distinctly more appropriate than Hong Kong to deal with the parties’ dispute, thus there was no need to consider any depravation of juridical advantage. Hence, §§83 to 88 of the Decision (which were included for completeness) are obiter.

31.  This court said in §§83 to 88 of the Decision that P would risk losing certain juridical advantages should the matter be tried in New Jersey. It was the parties’ choice not to adduce evidence on discovery process and dispute resolution mechanism in the New Jersey court system. There is no basis to say the above view is incorrect.

32.  It appears that R was taking a double standard when she asserted New Jersey is the “more appropriate forum for valuing assets, obtaining discovery, and examining witnesses” (§73 of the Decision) in the absence of expert evidence on New Jersey law in these matters.

33.  Ground 7 is not understood. As admitted by R, the New Jersey court would “usually award open durational alimony”. There is no dispute that the Hong Kong court favours arrangement which can achieve a clean break between the parties. There is nothing wrong in §85 of the Decision that “the likelihood of an award of open-ended continuing spousal maintenance in New Jersey is a potential disadvantage to P”.

Ground 10

34.  Ground 10 is, with respect, bizarre and contrary to general principle of laws.

35.  Firstly, R’s Summons was dismissed. R has not advanced any reason why the costs of the hearing should be reserved pending the determination in an independent and separate action by the New Jersey court on its jurisdiction, which has no relevance to the issue of costs here.

36.  Secondly, it was the parties’ decision to proceed with the divorce petitions (and the respective challenges on jurisdiction) in both Hong Kong and New Jersey at the same time. At the end of the hearing, this court has raised this issue and the possible unsatisfactory state of events that might be caused by proceeding in both jurisdictions in parallel. Both parties confirmed that they fully understood the implication and agreed that both courts shall determine the issues before it independently without regard to the proceedings in the other jurisdiction. The parties further confirmed that they did not request for a stay of proceedings in either court.

37.  Thirdly, R’s position on costs is confusing. R has made a separate application to vary the costs order nisi to costs reserved. The parties are in the process of filing evidence in the variation application. The final order on costs is yet to be determined. There is no costs order subject to appeal. There is also no basis to stay the variation of costs order nisi application (§4 of the Summons).

38.  I can see the force of P’s argument that R’s above conduct was procedurally incorrect and an abuse of process.

39.  The application for a stay of the rulings in the Decision pending the appeal (§3 of the Summons) must be dismissed following the dismissal of the leave to appeal application.

D.  Order

40.  By reasons of the above, R’s Summons is dismissed.

41.  There is no reason to depart from the starting point of costs follow the event. I have considered the statement of costs submitted by P and make an order nisi that R do forthwith pay P’s costs of the Summons summarily assessed at HK$100,000.