KCLM v. GW

FCMC 8151 / 2024

[2026] HKFC 13

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8151 OF 2024

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DECISION
(Stay of Proceedings and Forum Non Conveniens)

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1.  This is the Respondent’s application for the following:

1)     to have the Petition stayed for forum non conveniens; and

2)     to have the Petition dismissed upon Beijing Haidian People’s Court granting a divorce between the parties.  

2.  As at the date of the hearing, the Respondent (“the Husband”) is 62 years old and the Petitioner (“the Wife”) is 57 years old. Their two sons are 17 years old and 14 years old.

BACKGROUND

3.  I set out the following salient undisputed background facts of this case below.

Date	Event
2001	XXXXXXXXX listed on Hong Kong Stock Exchange (“08*****”). The Husband is CEO of the company.
18 June 2008	Parties got married in Hong Kong
20 September 2008	Eldest son (“the Eldest son”) was born.
17 December 2010	Youngest son (“the Youngest Son”) was born.
2013	XXXXXXXXXXXXXXXXXXXX listed on the Shenzhen Stock Exchange (“55****”). The Husband is the Chairman of the Board of Directors.
2016	XXXXXXXXXXXXXX listed on Shenzhen Stock Exchange (“03****”) The Husband is the CEO and Chairman of the Board of Directors in 03****. He is also the majority shareholder holding about 23% of the company shares.
2017	The Wife became the Chief Operating Officer of 08*****.
8 December 2017	Parties purchased the Century Tower Property (“the Former Matrimonial Home”) in Hong Kong under the Wife’s name.
31 July 2024	The Wife filed for divorce in Hong Kong (“the Hong Kong Divorce Proceedings”).
22 August 2024	The Husband filed for divorce in Beijing (“the Beijing Divorce Proceedings”) with the Beijing Haidian People’s Court (“the Beijing Haidian Court”).
2 September 2024	The Husband filed a summons for a stay of the Hong Kong Divorce Proceedings (“the Husband’s Stay Application”).
15 October 2024	The Wife filed a summons for maintenance pending suit (“the Wife’s MPS Application”).
19 December 2024	The Wife applied to dispute the jurisdiction of the Beijing Haidian Court to adjudicate on the parties’ divorce (“the Wife’s Beijing Jurisdiction Challenge”).
3 January 2025	Upon the Wife’s application, the Beijing Haidian Court granted an assets preservation order against half of the Husband’s shareholding in 03****.
1 April 2025	HHJ E. Liu set down the Husband’s Stay Application to be heard on 3 September 2025 and the Wife’s MPS Application to be heard on 22 September 2025
11 April 2025	The Beijing Haidian Court refused the Wife’s Jurisdiction Challenge.
16 May 2025	The parties’ single joint expert (“the Expert”) filed his expert report (“the First Report”).
19 June 2025	The Beijing 1st Intermediate People’s Court dismissed the Wife’s appeal against the refusal of her Jurisdiction Challenge.
25 July 2025	The supplemental expert report of the Expert was filed (“the Second Report”).
15 August 2025	The Wife took out a summons to file new evidence for the purposes of the Husband’s Stay Application (“the Wife’s Evidence Summons”).
3 September 2025	The court heard the Husband’s Stay Application. Judgment was reserved.
22 September 2025	The court heard the Wife’s MPS Application and judgment was reserved.
30 September 2025	The Beijing Haidian Court granted the following orders: 1)     A decree of divorce to the parties. 2)     Custody, care and control of the two children granted to the Wife. 3)     The Husband shall pay monthly children maintenance in the sum of RMB¥150,000 per child to the Wife. 4)     The remaining ancillary relief matters are to be decided in due course.
6 November 2025	The Wife lodged an appeal against the Beijing Haidian Court’s decision.
10 December 2025	A hearing was held for the parties to make submissions on the impact of the Beijing Haidian Court’s decision made on 30 September 2025 on the Husband’s Stay Application.

4.  The parties are highly successful in their respective career/businesses. By reason of their success, they accumulated vast wealth. On their Form E’s alone, the parties’ total assets amount to over HKD$5 billion.

5.  The bulk of the Wife’s assets are located in Hong Kong, whereas the bulk of the Husband’s assets are located in the PRC. The most valuable and the most contentious assets are the Husband’s shares in one Hong Kong listed company (namely, 08*****) and two PRC listed companies (namely 03**** and 55****). These three companies shall be collectively referred to as “the DC Companies”.

6.  According to the Wife’s Form E, the bulk of the family’s wealth lies in the DC Companies. The common understanding between the parties is that the DC Companies are owned by the parties and that the wealth generated is to be shared by the parties. This is evidenced by the fact the Wife regularly sought reimbursement from the DC Companies to defray household expenses paid by her.

7.  The Husband denies the Wife’s assertion of any common understanding relating to the beneficial ownership of the DC Companies.

8.  The parties’ respective arguments on the individual issues are set out in the relevant sections below.

THE LAW

9.  I set out the relevant legal principles relating to the jurisdiction of this court and forum non conveniens.

10.  Section 3 of the Matrimonial Causes Ordinance (Cap 179) (“MCO”) states the following:

“3. Jurisdiction in divorce

The court shall have jurisdiction in proceedings for divorce under this Ordinance if—

(a) either of the parties to the marriage was domiciled in Hong Kong at the date of the petition or application; (Replaced 29 of 1995 s. 3)

(b) either of the parties to the marriage was habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of the petition or application; or (Replaced 29 of 1995 s. 3)

(c) either of the parties to the marriage had a substantial connexion with Hong Kong at the date of the petition or application. (Added 68 of 1970 s. 26. Amended 29 of 1995 s. 3)”

11.  The principles of forum non conveniens, in the context of matrimonial proceedings, are set out in the Court of Final Appeal’s decision in SPH v SA [2014] 3 HKLRD 497 as follows:

“VI Forum non conveniens: principles

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

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

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

2. In order to answer this question, the applicant for the stay has to establish that first, Hong Kong is not the natural or appropriate forum (‘appropriate’ in this context means the forum has the most real and substantial connection with the action) and second, there is another available forum which is clearly or distinctly more appropriate than Hong Kong. Failure by the applicant to establish these two matters at this stage is fatal. (“Stage 1”)

3. If the applicant is able to establish both of these two matters, then the plaintiff in the Hong Kong proceedings has to show that he will be deprived of a legitimate personal or juridical advantage if the action is tried in a forum other than Hong Kong. (“Stage 2”)

4. If the plaintiff is able to establish this, the court will have to balance the advantages of the alternative forum with the disadvantages that the plaintiff may suffer. Deprivation of one or more personal advantages will not necessarily be fatal to the applicant for the stay if he is able to establish to the court's satisfaction that substantial justice will be done in the available appropriate forum.” (“Stage 3”)

52.     The Court of Appeal in that case (as in the present case) emphasised that the husband was entitled to sue in Hong Kong as of right. Where jurisdiction is founded in the Hong Kong court as of right (as in divorce proceedings like the present case), the party seeking the stay has to establish that there is another available forum which is clearly or distinctly more appropriate than the Hong Kong forum.  This derives from what Lord Goff said in Spiliada (at 477), which has been regularly applied in Hong Kong: e.g. The Kapitan Shvetsov [1997] HKLRD 374 at 377; The Peng Yan [2009] 1 HKLRD 144, at [22].”

12.  I shall refer to the three-stage test set out in DGC v SLC (née C) [2005] 3 HKC 293by reference to Stage 1 to 3 in my analysis below. 

DISCUSSION

13.  I shall first deal with the application to adduce new documents.

New Documents

14.  The Wife filed her Evidence Summons only 2 weeks before the substantive hearing of the Husband’s Stay Application. Due to the imminent hearing date of Husband’s Stay Application, I directed the Wife’s Evidence Summons to be heard on the same day as the Husband’s Stay Application.

15.  The Wife sought to admit the following documents:

1)     The Husband’s application to amend his claim (變更訴訟請求書) dated 25 September 2024;

2)     The Husband’s submissions to the Beijing Haidian Court dated 23 July 2025;

3)     The Husband’s second application to amend his claim (變更訴訟請求書) dated 24 July 2025; and

4)     The Beijing Haidian Court’s Notice of Hearing dated 25 July 2025.

16.  The Wife submitted the above documents are essential to enable the court to have a full picture of the Beijing Divorce Proceedings. More particularly, the Wife claimed these documents clearly showed the Husband had no intention of fully resolving the ancillary relief matters between the parties because he had not fully pleaded all assets that need to be divided between the parties.

17.  The Husband objected to the admission of these documents for being irrelevant to his Stay Application. However, for the sake of saving time and resources, the Husband agreed the court could consider the said documents on a de bene esse basis at the hearing of the Stay Application.

18.  Having considered the submissions of the parties and documents themselves, I see no reason why these documents should be excluded from the present application. It is clear in order for the Wife to make good her submissions, she needed to rely on the said documents. Since the documents have already been submitted to the Beijing Haidian Court and the documents primarily are the Husband’s documents, I see no prejudice in the admission of the same for the present application. Albeit the Wife’s application was made very close to the substantive application of the Husband’s Stay Application, I am of the view the Wife’s application should be granted.  I therefore allow the said documents to be admitted.

19.  I shall now proceed to deal with the Husband’s application for stay.

Forum non conveniens

20.  The Respondent does not dispute Hong Kong courts have jurisdiction over the Hong Kong Divorce Proceedings. The Respondent’s main argument is whether Beijing is clearly and/or distinctly the more appropriate forum to litigate the present divorce proceedings.

Summary of Parties’ submissions  

21.  I shall not repeat each and every submission made by the parties’ respective counsel. Suffice to say, I have considered submissions of counsel. I shall summarize the salient submissions made by both sides below.

22.  The Husband’s submissions can be summarized as follows:

1)     The present Hong Kong divorce proceedings should be stayed because:

a)     The parties’ main dispute is over the division of matrimonial assets. This will include the need to identify what is to constitute matrimonial assets, the value of such assets and the proper division of the same. Since the bulk of the family’s wealth lies with the Husband and his assets are mainly in Beijing, the Beijing court is the more appropriate forum to decide the above matters.

b)     The Husband’s most valuable assets are the shares in 03****. Therefore, it is anticipated the main battleground of the parties’ ancillary relief will relate to the same. The Husband argues the issues surrounding the shares in 03**** are more properly litigated in Beijing for the following reasons:

(i)     The valuation of the Husband’s shares in 03**** is complicated as the shares are subject to trade restrictions imposed by the laws of the PRC. Hence, the valuation of the Husband’s shares in 03**** must be determined by reference to the relevant PRC laws and regulations, and any relevant PRC administrative rules as may apply to the shares.

(ii)     Furthermore, the valuation of the Husband’s assets in 03**** and 55**** will entail substantial disclosure of documents that are not only located in PRC but also are subject to PRC laws and regulations.

(iii)     The source of funding in the Husband’s acquisition of shares in 03**** shares is also important, as it would go to whether the shares can be classified as matrimonial assets. According to the Husband, the acquisition of the shares in 03**** were financed by various PRC parties as well as funds from the restructuring of a state-owned enterprise. This would require the court to have an understanding of the PRC’s state policy as applicable to the relevant arrangement and restructuring process. Hence, the Beijing Haidian Court would be the more appropriate court to determine the same.

c)     As for the valuation of the Husband’s shares in 08*****, the Husband submitted that most of the relevant documents “are likely” to be located in PRC. More importantly, the shares were acquired with funds from the restructuring of the state-owned enterprise, XXXX, and this may have an impact on the determination of the ownership of the said shares.

d)     Any dispute relating to the Husband’s personal loans (which amount to RMB¥1.1 billion) are more properly determined by the Beijing Courts. These loans are made in the PRC with PRC individuals. The applicable law governing these loans is PRC law. Moreover, the relevant documents and witnesses are all located in the PRC.

e)     The principle of international comity requires the Hong Kong court to give weight to the very fact that the Beijing Courts have now seized jurisdiction over the matter. Moreover, the Beijing Haidian Court has, since the FNC hearing, granted a divorce decree as well as having adjudicated on the children matters.  Hence, these matters should weigh in favour of staying the present Hong Kong proceedings.  

23.  The Wife’s submissions can be summarized as follows:

1)     The Beijing Haidian Court is not seized with the full ancillary relief claims of the parties. In particular, the Husband has not asked the Beijing Haidian Court to adjudicate the parties’ dispute over the 03**** shares. Hence, if the Hong Kong proceedings were to be stayed, the Wife would have no recourse to litigate her ancillary relief claims over the Husband’s assets as set out in his Form E. 

2)      If the Hong Kong proceedings were to be stayed, the Wife would be deprived of a legitimate personal or juridical advantage.

a)     The Wife argues that by reason of the operation of section 16(1)(e) Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap 639) (“Cap 639”), any order made by the PRC is unenforceable under Hong Kong law. If the Hong Kong Divorce Proceedings were stayed, the Wife would be left without recourse in the event the Husband fails to comply with the PRC order.

Furthermore, by operation of s.16(1)(e) Cap 639, if the Hong Kong Divorce Proceedings are stayed, the Wife would be precluded from making an application under section 29AC of Part IIA of the Matrimonial Proceedings and Property Ordinance (Cap 192) (“MPPO”) in respect of the Hong Kong assets that are not the subject matter of the Beijing Divorce Proceedings.

b)     There is no mechanism under the PRC law for the Wife to seek further discovery on the Declaration Form filed by the Husband.

c)     There is no equivalent of a section 17 MPPO application under PRC laws. This is detrimental to the Wife’s allegations against the Husband regarding his dissipation of matrimonial assets.

d)     There is no provision of maintenance pending suit under PRC law. Since the Husband has now effectively halted previous available financial resources of the Wife to meet her daily financial needs, the Wife has suffered financial hardship as a result of the Husband’s actions.

e)     There is no children maintenance available for children over 18 years old. Since the two Sons are likely to receive tertiary education overseas, the Wife would seek an order for children maintenance until they finish their full time education. If the Hong Kong Divorce Proceedings are stayed, the Wife could only rely the Husband’s undertaking to support the children after they reach 18 years old. If the Husband fails to honour his undertaking, the Wife would be left without recourse.

24.  I shall now proceed to discuss the 3 Stages as set out in DGC v SLC.

25.  For avoidance of doubt, although the parties filed their Form Es for the purposes of the Wife’s MPS application, I have saw fit to use the Form Es in considering the Husband’s Stay Application. In order to consider the issues raised by the parties, in particular the Husband’s argument that the majority of assets are located in PRC, I am of the view the parties’ Form Es must be considered so that this court can accurately grasp the proportion and value of assets asserted by the Husband to be located in the PRC.

Stage 1: Whether Hong Kong is the natural and appropriate forum.

26.  Stage 1 of the test set out in DGC v SLC is in fact a two-part test. The Husband must prove that Hong Kong is not the natural and appropriate forum for the present divorce proceedings AND that Beijing is the clearly and distinctly the more appropriate forum.   

Substantial and real connection with Hong Kong

27.  The parties do not dispute matters relating to the main suit and the children arrangements. The main area of contention in the Hong Kong Divorce Proceedings is the ancillary relief proceedings.

28.  Having considered the parties’ submissions and the evidence before me, I am of the view the subject matter of the ancillary relief proceedings is more substantially connected with the PRC.

29.  The net total (after deducting liabilities) of disclosed assets in the parties’ Form E amount to over HK$5,330,064,148.77 (parties have stated that the value of some of the assets are to be decided). The gross total (without deducting liabilities) of the aggregate of the parties’ assets is HK$6,673,298,188.96. The Husband’s net assets represents 95.5% of the total net assets set out in the parties’ Form E. According to the Husband’s Form E, the total value of shares of 03**** are HK$5,914,232,146.41. This sum is equivalent to 88.6% of the gross total of the parties’ assets.

30.  From the above, it is clear that the major contention in the parties’ ancillary relief trial will revolve around the PRC assets held by the Husband.

31.  One hotly contested issue in the ancillary relief trial will be whether the DC Companies as a whole, or any part thereof (that is, 08*****, 03**** and 55**** independently) are to be considered matrimonial assets. Since 03**** represents a significant portion of the assets held by the Husband, the issue of whether 03**** can be included in the calculation of the matrimonial pot and whether the parties jointly own 03**** is anticipated to be a major area of contention that must be decided by this court if the ancillary relief proceedings were to be tried in Hong Kong.  

32.  Ms Yip SC, counsel for the Wife, points out that in the original divorce application lodged with the Beijing Haidian Court, the Husband pleaded the following relief:

1)     Dissolve the marriage;

2)     Grant the custody of the 2 Sons to the Husband;

3)     Divide the parties’ common assets;

4)     The Wife be ordered to pay costs.

33.  Subsequently, by his application to amend the petition of the Beijing Divorce Proceedings dated 25 September 2024, the Husband sought to amend the application to limit the asset division to the parties’ home in Beijing and the parties’ joint bank accounts. In his latest application for amendment (dated 24 July 2025), he no longer pleaded any order for ancillary relief.

34.  Ms Yip SC concluded, from a reading of the pleadings of the Beijing Divorce Proceedings, it is evident the Husband’s arguments relating to the DC Companies are superfluous because those assets are not the subject matter of the ancillary relief in the Beijing Divorce Proceedings.

35.  Having read the Beijing Haidian Court’s judgment dated 30 September 2025, I am of the view it is apparent the Beijing Haidian Court is not limiting itself to just dealing with the matters raised by the Husband. At pages 4 to 6 of the judgment, the Beijing Haidian Court lists out the parties’ assets, which include the shares of 03**** and 08*****, the Husband’s shares in 19 private companies, a Beijing property, and the Husband’s liabilities in the sum of RMB¥1.1 billion. The Beijing Haidian Court specifically stated that it was aware of the Wife’s allegations of non-disclosure of assets by the Husband. The Beijing Haidian Court then concluded because the parties’ assets were voluminous and were of substantial value, the court needed more time in order to gather more information on the same. The relevant passage is set out below.

36.  Hence, it is clear the Beijing Haidian Court is aware of the issues between the parties and is not limiting its ancillary relief jurisdiction to only that pleaded by the Husband.

37.  Having considered the submissions of the parties, I agree with Mr Leung, counsel for the Husband, that issues arising from the beneficial ownership and valuation of 03**** will heavily involve PRC laws and regulations. Although it is trite that applying foreign law alone is no bar to having the matter tried in Hong Kong, the reality is that any trial to be conducted in Hong Kong will not be limited to just one or two points of foreign law. The trial will substantially involve PRC law and regulations on all aspects surrounding both 03**** and 55****, including valuation of shares, and questions relating to beneficial ownership of the shares.  I also anticipate that any attempt to apply for disclosure of documents of 03**** and 55**** will involve substantial application of laws and regulations relevant to PRC listed companies.

38.  I further accept that many of the witnesses and documents required for the adjudication of the valuation and the determination of the beneficial interest in the DC Companies are mainly located in the PRC. This is another factor indicative of Beijing being the more appropriate forum.

39.  I therefore accept Mr Leung’s submission that the subject matter of the ancillary relief proceedings are more substantially connected with PRC.

40.  In so far as enforcement of any order by Hong Kong or Beijing is concerned, it is highly likely (if not inevitable) that any ancillary relief order to be made between the parties will require enforcement procedures to be carried out in PRC. Since Beijing Haidian Court has now seized jurisdiction over the Beijing Divorce Proceedings, it is likely it would conclude the ancillary relief trial sooner than the Hong Kong Divorce Proceedings. In such circumstances, any ancillary relief order made by the Hong Kong courts may not be enforceable in PRC.

41.  The Expert confirms the same in paragraphs 94 and 95 of his First Report as follows:      

42.  The fact that any Hong Kong order relating to ancillary relief may now be unenforceable weighs heavily in favour of Beijing being the more natural forum to resolve the parties’ ancillary relief.

43.  In the case of Sharab v HRH Prince Al-Waleed Bin Talal Bin Abdal-Aziz Al-Saud [2009] EWCA Civ 353, Lord Justice Richards stated the following at paragraph 63 of his judgment:

“The enforceability of a judgment is an advantage on which a claimant is entitled to rely and which can, in an appropriate case, be decisive: see the decision of the Court of Appeal in International Credit & Investment Company (Overseas) Ltd v Sheikh Kamal Adham [1999] I.L.Pr. 302, as considered and applied by Tugendhat J in Inter-Tel Inc v Ocis Plc [2004] EWHC 2269 (QB) at [22]-[25]. In the present case the deputy judge was entitled to treat the enforceability of an English judgment as a factor clearly favouring England as the appropriate forum.”

44.  I am therefore of the view that although the Hong Kong courts have jurisdiction over the present divorce proceedings, it is not the natural and appropriate forum to deal with the ancillary relief applications by the parties.

45.  I also accept the Beijing Haidian Court is the more natural and appropriate forum to adjudicate the parties’ ancillary relief proceedings.

Stage 2

46.  I shall deal with the salient arguments raised by Ms Yip SC on the loss of personal juridical advantage, of which I have summarized in paragraph 23 hereinabove.

Consequences of the application of s.16(1)(e) Cap 639

47.  The Wife argued that if the Hong Kong proceedings were stayed she might end up being perpetually married to the Husband because any registration of the decree of divorce would be liable to set aside under Section 16(1)(e) Cap 639. She concludes that by this reason alone, she would be barred from Part IIA MPPO proceedings. I shall deal with this argument first.

48.  Having considered the relevant legislation and the parties’ submissions, I find the Wife’s argument on this issue to be misconceived.

49.  There are 2 sets of provisions built into Cap 639 for setting aside a registration of Mainland judgments or orders: the setting aside of a registration of orders made in Mainland Judgments (see s.15 and Section 16(1)(e) Cap 639) and the setting aside of the recognition of a Mainland divorce certificate (see s.32 and 33 Cap 639). The criteria for setting aside the registration of an order in Mainland judgments are different from those for setting aside a recognition order. For sake of completeness I set out these 4 sections below:

15. Applications for setting aside registration

If a specified order in a Mainland Judgment is registered in accordance with a registration order, a party to the Judgment (other than the party who applied for the registration) may, within the period specified under section 14(1) (or as extended under section 14(2)), apply to the registering court to set aside the registration of the specified order.

16. Grounds on which registration must be set aside

(1) The registering court must, on an application made under section 15 for setting aside the registration of a specified order in a Mainland Judgment, set aside the registration if it is satisfied that—

…

(e) the proceedings in which the Judgment was given were accepted by a court in the Mainland after proceedings in respect of the same cause of action between the same parties were started in a court in Hong Kong; …

(3) To avoid doubt, for the purposes of subsection (1)(e), (f) and (g), the cause of action on which the Judgment was given (Mainland cause of action) and the cause of action (non- Mainland cause of action)—

(a) in respect of which the proceedings were started in a court in Hong Kong; or

(b) on which a court in Hong Kong or a court in a place outside Hong Kong has given a judgment,

are not the same if the circumstances giving rise to the non- Mainland cause of action are materially different from the circumstances giving rise to the Mainland cause of action.

32. Applications for setting aside recognition orders

If an order is made under section 30(1) for the recognition of a Mainland divorce certificate, a party to the divorce specified in the certificate (other than the party who applied for the recognition) may, within the period specified under section 31(1) (or as extended under section 31(2)), apply to the District Court to set aside the order.

33. Grounds on which recognition orders must be set aside

The District Court must, on an application made under section 32 for setting aside an order for the recognition of a Mainland divorce certificate, set aside the order if it is satisfied that—

(a) the certificate was obtained by fraud;

(b) the certificate is invalid; or

(c) the recognition is manifestly contrary to the public policy of Hong Kong.

50.  It should be noted that the operative word in sections 15 and 32 (the provisions enabling an application to be made) is “may”. This means even if the criteria in s.16 or s.33 Cap 639 are met, the registration is not automatically invalid. There must still be an application from a party to have the said judgment/order set aside. It is only when a party applies to have the judgment/order/divorce certificate set aside will the registering court be called upon to exercise its power to set aside.

51.  It is telling to note that the legislation specifically states that judgments/orders/divorce certificates which fall within s.16 and/or s.33 Cap 639 are only liable to be set aside on application by a party. The legislation does not provide the power for the court to set aside the same on its own initiative and does not stipulate that such judgments/orders/divorce certificates are to be automatically set aside once the criteria are met.  I am of the view this must have been intentional drafting by the legislature. In other words, the legislation permits registered judgments/order/divorce certificates to be recognized and enforceable so long as no party applies to have it set aside. However, once a party applies to have a judgment/order/divorce certificate to be set aside and the criteria in s.16 and/or s.33 are met, the court has no discretion but to set aside the said judgment/order/divorce certificate that falls within s.16 and/or s.33 Cap 639.

52.  Sections 20 and 24 of Cap 639 clearly state that enforcement action on a registered order cannot be taken until after the expiry of the period for setting aside a registration could be made under s.15 Cap 639. Moreover, if an application under s.15 Cap 639 is made within time, the enforcement action cannot be taken until after the application under s.15 Cap 639 is determined. The similar principles apply to recognition orders (see s.29 Cap 639) in that such orders/certificates do not take effect until the application under s.32 Cap 639 is disposed of or that the time to make such application has expired (see s.35 Cap 639).

53.  Hence, once a judgment/order/certificate is registered, and no application to set aside the registration is made or such application has been dismissed, the judgment/order/certificate will take effect in Hong Kong and enforcement action will be available in Hong Kong to the parties.

54.  The parties have already indicated their agreement on the main suit and children custody matters. Once the Husband makes an application for registration of the Beijing Haidian Court’s order relating to divorce decree and the custody order in Hong Kong, I am of the view it is highly unlikely the Wife would apply to set aside the order.  In such circumstances, I do not accept s.16(1)(e) Cap 639 would render the decree of divorce granted by the Beijing Haidian Court unenforceable in Hong Kong.  Hence, I do not accept the Wife would be barred from making an application under Part IIA MPPO by reason of the decree of divorce not being recognized.

55.  In so far as the Wife argues s.16(1)(e) Cap 639 would bar her from taking out Part IIA MPPO proceedings in the event the Beijing Haidian Court does not adjudicate on the Hong Kong assets, I disagree.  I set out my reasoning below.

56.  Firstly, the Wife’s assumption or postulation that non-PRC assets will not or may not be dealt with by the Beijing Haidian Court is not supported either in law or in fact. The Expert explained in his First Report there is no law, rule or regulation prohibiting or inhibiting the Beijing Haidian Court from dealing with the parties’ non-PRC assets. 

57.  Paragraph 6 of the First Report states as follows:

58.  The Expert acknowledged there have been different practices adopted by different courts. After examining different case law, the Expert concluded the following at paragraph 19:

59.  Furthermore, according to the Beijing Haidian Court judgment dated 11 April 2025, the Beijing Haidian Court is fully aware of the Wife’s claims and that the parties have extensive assets both in Hong Kong and in PRC. Nevertheless, the Beijing Haidian Court opined it was the more appropriate forum to deal with the parties’ ancillary relief proceedings. Hence, there is nothing in the judgments handed down by the Beijing Haidian Court which indicate the Beijing Haidian Court will not deal with the parties’ non-PRC assets.

60.  Secondly, the provisions in Cap 639 clearly exempt the application of its staying provisions from Part IIA MPPO proceedings and from proceedings in which the Hong Kong proceedings and the Mainland proceedings do not share the same cause of action.

61.  Section 26 Cap 639 clearly states that Hong Kong proceedings would only be stayed if 3 criteria are met:

1)     an application for registration is made under s.15 Cap 639;

2)     the Hong Kong proceedings pending before court are in respect of the same cause of action; and

3)     the Hong Kong Proceedings are not proceedings under Part IIA MPPO.

62.  Section 26(7) Cap 639 defines what is meant by the same cause of action as follows:

“(7) To avoid doubt, the cause of action on which the Judgment was given (Mainland cause of action) and the cause of action in respect of which the proceedings are pending before a court in Hong Kong (Hong Kong cause of action) are not the same if the circumstances giving rise to the Hong Kong cause of action are materially different from the circumstances giving rise to the Mainland cause of action.”

63.  Section 27(2) Cap 639 states that Part IIA MPPO proceedings are excluded from the restriction on hearing the same cause of action.

64.  In other words, Cap 639 does not act as to bar the Wife from making an application under Part IIA MPPO. In fact, s.26 and s.27(2) Cap 639 specifically excludes Part IIA MPPO proceedings from the application of any mandatory stay of proceedings. Therefore, if there are any residual ancillary relief issues not resolved by the Beijing Haidian Court, Cap 639 does not bar the Wife from making applications under Part IIA MPPO.

65.  The principles governing an application under Part IIA MPPO are set out in sections 29AC, 29AE and 29AF MPPO of which I shall not repeat. The leading case on the matters to be considered is TJ v XGM, FCMP 220/2015, (unrep), 22 January 2016. From a reading of the relevant provisions and the leading case on the matter, it is evident when considering whether to grant leave under s.29AC MPPO the court is not tasked with considering the same considerations as those under the provisions for setting aside in Cap 639. The two matters are separate and distinct. If the Beijing Haidian Court does not deal with the parties’ non-PRC assets, there is no provision in law that would bar the Wife from lodging an application under s.29AC MPPO.  

66.  By reason of the above, I do not accept the Wife would lose the right to apply for leave to commence Part IIA MPPO proceedings by reason of the operation of s.16(1)(e) Cap 639 or any provision therein.

67.  Although the Wife argued that any ancillary relief order made by Beijing Haidian Court is liable to be set aside under s.16(1)(e) Cap 639 and therefore the Wife is precluded from taking enforcement action against such order in Hong Kong, I am of the view such argument is flawed. As already stated above, any registration can only be set aside if a party to the action makes the application. In order words, it is pre-mature to say with any certainty whether the Beijing Haidian Court order will necessarily be set aside. Moreover, the reality is the majority of the family assets are held by the Husband in the PRC. Any enforcement action relating to such assets is most likely (if not inevitably) to be carried out in PRC.

68.  For reasons given above, I do not accept the Wife would suffer loss of personal or juridical advantage by reason of any consequences of the application of s.16(1)(e) Cap 639 and do not accept the Wife would suffer a loss of personal or juridical advantage by being unable to bring Part IIA MPPO proceedings in Hong Kong (if necessary).

The deprivation to bring s.17 MPPO proceedings in the PRC

69.  The Wife submitted the Husband dissipated family assets. She therefore intends to make an application for setting aside such dispositions pursuant to s.17 MPPO in the Hong Kong Divorce Proceedings. The Wife argued she would lose the juridical advantage of being able to challenge the Husband’s disposition of matrimonial assets because PRC law does not have provisions similar to s.17 MPPO.

70.  According to the Expert’s First and Second Reports, there are a number of remedies under PRC law to deal with property held by third parties.  

71.  The starting point is that PRC law does not distinguish between legal and beneficial interest. The Expert states the following at paragraphs 47 and 53 of the First Report:

 …

72.  However, the PRC recognizes a concept of “nominee holding”.  This is explained by the Expert at paragraphs 54, 55 and 61:

…

73.  More importantly, under PRC law, it is open for the parties to allege and prove that common assets between the parties were dissipated for the purposes of defeating ancillary relief proceedings.

74.  The Expert explained this in detail at paragraphs 17 – 24 of the Second Report as follows:

75.  Hence, although there is no formal mechanism to bring about an application equivalent to s.17 MPPO under PRC law, the concept of “nominee holding” under the PRC law and the law prohibiting dissipation of common assets is similar in its application to ancillary relief proceedings. Like a s.17 MPPO application, if the asset cannot be proved to be genuinely held on behalf of another party (akin to not being able to establish the beneficial interest of the property lies with others), the asset would be considered a matrimonial asset liable for division in the divorce proceedings. The same would apply to any asset a held by a third party which one spouse (e.g. the Wife) claims to be held for the benefit of the opposing spouse (e.g. the Husband). If the Wife is unable to prove an asset held by a third party is actually held on behalf of the Husband, the asset would not be counted as the matrimonial assets liable for division.

76.  By reason of the above, I do not accept the Wife has no recourse under PRC law in so far as she claims the Husband has dissipated assets to others for the purposes of defeating her ancillary relief claims.

Lack of discovery mechanism

77.  The Wife argues that another loss of personal or juridical advantage is that there is no discovery mechanism under PRC law.

78.  Although the Expert confirms there is no formal mechanism for parties to make an application for discovery against the other party (see paragraph 75 of the First Report), the Expert explains the PRC courts have the power to conduct investigations. I reproduce the relevant paragraphs of the First Report below:

     …

 

…

79.  I have considered a number of previous authorities in which the Hong Kong courts agreed with the submission that the PRC had an inferior discovery procedure when compared to Hong Kong (for example LC v AD [2012] HKFLR 376). However, I note those cases were decided before the revision of the Law of the People’s Republic of China on the Protection of Women’s Rights and Interests (《中華人民共和國婦女權益保障法》) in 2022. Currently, under the revised law, a spouse can raise the issue of non-disclosure and the PRC courts would be obligated to conduct investigations on the same. I am therefore of the view the findings relating to the PRC inferior discovery procedure as enunciated in previous Hong Kong authorities must now be considered in light of the new revisions made under the PRC law.

80.  I am of the view that although there is no formal mechanism for the Wife to make applications for discovery against the Husband’s assets, the Wife is entitled to raise the issue with the PRC courts and once raised, the PRC courts are obliged to investigate the matter. I further note the PRC courts’ power of investigation is much more extensive than the power of the Hong Kong courts because all relevant “departments and units” are mandated to assist in the court’s investigation. I therefore do not accept the Wife will suffer a loss of personal or juridical advantage in so far as discovery is concerned. Even if I am wrong on the same, by reason of the new revisions of the PRC law, I am of the view that substantial justice can still be done in the PRC on allegations of non-disclosure.

Lack of Maintenance pending suit

81.  Although PRC laws do not have the remedy of maintenance pending suit, it has a similar mechanism called advance payment (or advance execution). The Expert explains this mechanism as follows in the First Report:

82.  The Expert conceded that although such mechanism is available, parties rarely make an application for advanced payments. This is further elaborated in the Second Report as follows:

83.  Hence, should the Wife choose, she may still seek an equivalent of maintenance pending suit before the Beijing Haidian Court makes its order on ancillary relief. I therefore do not accept the Wife would lose the juridical advantage of applying for maintenance pending suit or its equivalent if the Hong Kong Divorce Proceedings were to be stayed.

Lack of Adult children maintenance

84.  On 30 September 2025, the Beijing Haidian Court made an order against the Husband ordering him to pay a total sum of RMB¥300,000 per month as children maintenance (that is, RMB¥150,000 per month per child).

85.  The Wife argued if the divorce was litigated in Beijing, she would suffer a loss of personal and juridical advantage because she would lose the right to seek maintenance for her children once they reach 18 years old.

86.  The Expert confirms the PRC law does not make provision for children above 18 years old even if the adult child is in full time education (see paragraph 88 of the First Report and paragraph 41 of the Second Report).

87.  According to the Husband, this is a non-issue because he is willing to pay for the children’s tertiary education and reasonable living expenses.

88.  The Wife submitted the Husband’s purported willingness to pay for the children’s education expenses is illusory because the Husband has not complied with the order for children maintenance made by the Beijing Haidian Court.

89.  Having considered the evidence and submissions of the parties, even if the Wife may suffer a loss of personal or juridical advantage in the PRC proceedings in so far as adult children maintenance is concerned, this reason alone is not sufficient to refuse the Husband’s Stay Application.

90.  If the Wife is unable to obtain a sum of maintenance for the Sons after they reach 18 years old and if the Husband refuses to maintain the adult children, I see no reason why the Wife cannot make an application in Hong Kong under s.29AC MPPO for the same relief.

91.  Furthermore, if the ancillary relief proceedings in the Beijing Haidian Court are not concluded by the time the Eldest Son reaches 18 years old, and if the Husband refuses to maintain the Eldest Son, the Wife has the remedy of advance execution available under PRC law.  

92.  Hence, although there is no provision for maintenance of adult children under PRC law, the Wife still has recourse against the Husband in Hong Kong once s.29AC MPPO leave has been obtained in respect of pursuing financial relief relating to the adult children.

93.  By reason of the matters set out above, even if Wife may lose a personal or juridical advantage in that there is no provision for adult children maintenance under PRC law, the Wife still maintains the option of seeking leave to commence an action under Part IIA MPPO in Hong Kong. Hence the Wife’s ancillary relief claim in respect of adult children maintenance is not prejudiced by the mere fact the Hong Kong Divorce Proceedings are stayed.

SUMMARY

94.  By reason of the matters set out above, I am of the view the Beijing Haidian Court is clearly and distinctly the more appropriate forum to adjudicate the parties’ divorce proceedings. Further, despite there being no provision for maintenance for children over 18 years old, I do not find the said loss of personal or juridical advantage to be sufficient to refuse the Husband’s Stay Application.

COSTS

95.  I first deal with the costs of the Wife’s Evidence Summons. I am of the view that since the Wife relied on the new evidence to make good her arguments and the court had also considered the same in considering this Decision, I am of the view costs should be in the cause of the Husband’s Stay Application.

96.  In so far as the costs of the Husband’s Stay Application is concerned, I am of the view costs should follow the event.

97.  As for the costs of the anti-suit injunction summons (which was subsequently withdrawn by the Petitioner), those costs will not be dealt with in this judgment. I shall leave it to the parties to make their respective applications by way summons.

ORDERS

98.  I therefore make the following orders:

1)     The Petitioner’s summons dated 15 August 2025:

a)     Order in terms of paragraphs 1, 2 and 3 thereof. 

2)     The Respondent’s summons dated 2 September 2024:

a)     The Petition filed on 31 July 2024 be stayed in favour of the Beijing Haidian People’s Court as being the more appropriate forum.

b)     Upon the registration of the decree of divorce granted by the Beijing Haidian People’s Court with the Hong Kong Courts and upon time for setting aside the said registration has expired, the Petition be dismissed.

c)     There be liberty to restore.

99.  In respect of costs, I make a costs order nisi as follows:

1)     Costs of the Petitioner’s summons dated 15 August 2025 be in the cause of the Respondent’s summons dated 2 September 2024.

2)     Costs of the Respondent’s summons dated 2 September 2024 be to the Respondent, to be summarily assessed, with certificate for two counsel.

3)     Unless any party applies to vary the above costs order nisi within 14 days hereof, the costs order shall become an order absolute.  

4)     The summary assessment of costs of the Respondent’s application shall be dealt with by way of paper disposal.

5)     The parties shall propose directions on the paper disposal of the summary assessment of costs no later than 28 days from the date of this Decision.