JQ v. CLH

FCMC No. 7498/2018

[2021] HKFC 105

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

No. 7498 OF 2018

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J U D G M E N T
( Jurisdiction )

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1.  The issue to be determined is whether the Family Court has jurisdiction to deal with the wife’s petition for divorce on the basis that the husband had a substantial connection with Hong Kong as at the date of the petition.

2.  The jurisdiction issue was picked up by me at the 1^st Appointment hearing.  The petitioner wife pleaded in her petition that “the respondent is domiciled in Hong Kong or has a substantial connection with Hong Kong”.  This followed by no less than 20 paragraphs of “Particulars” in support of the contention that the respondent husband had a substantial connection with Hong Kong.  It is not necessary for me to refer to the particulars in any details.  By and large, the wife relied upon the assertions that (1) the respondent has been habitually or ordinarily resident in Hong Kong since about 1970; (2) the respondent has been active in the property market in Hong Kong; (3) the respondent’s work and business is in Hong Kong; and (4) his assets are in Hong Kong; and (5) the respondent is a businessman and is the chairman, executive director and managing director of a Hong Kong listed company and resides at an address in Hong Kong. 

3.  The oddity of the pleading caught my attention. In normal circumstances, it would be sufficient for a petition to rely upon the “domicile” ground in order to establish the court’s jurisdiction over the proceedings.  Pleading both the “domicile” ground and the “substantial connection” ground showed, by implication, the wife was not sure of the “domicile” ground; and by not pleading the “3-year habitual resident” ground, it showed the respondent husband was not residing in Hong Kong.

4.  Enquiry was made by the court as to the husband’s position during the 1^st Appointment hearing.  The solicitor for the husband admitted that while the husband did not consider he had a substantial connection with Hong Kong, he conceded to the jurisdiction of this court out of “convenience” only, in the hope to resolve divorce matter.

5.  Subsequently, the husband filed an inter-parties summons on 10 February 2020 seeking to dismiss the wife’s petition on the ground of want of jurisdiction.  Parties’ affirmations have been filed in relation to husband’s connection with Hong Kong.  It is the husband’s case that this court did not and does not have the necessary jurisdiction under section 3 of the Matrimonial Causes Ordinance (Cap 189) (“the Ordinance”).

6.  In this judgment, for the ease of reference, I shall refer to the petitioner as “the wife” and the respondent as “the husband”.

7.  The wife is 52 years old and the husband is 70. They were married in July 2013 in Las Vegas, the United States.  This is the 2^nd marriage for the husband.  He previously married with his former wife in December 1980 and divorced with her in Hong Kong in May 2005.  It is unclear as to the wife’s status before the marriage.

8.  The parties’ marriage formally lasted for about 5 years.  In June 2018 the wife petitioned in the present proceedings for a divorce on the ground of the husband’s unreasonable behaviour. 

9.  The petition was uncontested; and the decree nisi was granted on 23 October 2018.

10.  The factual matrix relevant to the issue is as follows.

(1)     The wife was a Mainland Chinese and the husband was also originally from the Mainland.  It is not entirely clear when the husband came to Hong Kong. The wife said it was in 1960’s but the husband said it was in about 1972 and 1973.  Be that as it may, I do not think the dispute is germane to the application before me.

(2)     The husband married his former wife in Hong Kong in December 1980.  There are two children (one son and one daughter) born out of this marriage.  Since they also feature in the present proceedings, I shall refer to the son as “CH” and the daughter as “YM”.  They are 39 and 38 years old respectively.

(3)     In about 1984, the husband set up an electrical company in Hong Kong with manufacturing factories in Dongguan, his hometown, and in Shanghai. 

(4)     Then in about 1989 the wife came into the picture.  They met in Shanghai and started an extramarital affair.  Back then, the wife worked as a nurse in a hospital in Shanghai.

(5)     There is some dispute over to where the husband mainly lived since 1990’s up to the time when the wife moved to the United States in 1995.  The husband said in order to closely supervise and manage his factory in Dongguan, he moved back to Dongguan and lived in his family home with his elder brother.  He stayed in his Hong Kong home when he came back to Hong Kong from time to time for 1 to 2 days to see his former wife and their children.  As for the wife, she said the husband was based in Hong Kong overseeing his business, and living with his former family in Hong Kong.  The husband travelled back and forth between Hong Kong, Dongguan and Shanghai for his business and for visiting the wife in Shanghai every month until she moved to the United States.

(6)     In 1991, the wife stopped working when she was pregnant with a son whom I shall refer to as “ZX”.  ZX was born in Shanghai and is now aged 28; he is the eldest child of the family in the present proceedings.  The husband went to Shanghai to visit them every month.

(7)     In 1995, with the financial support of the husband, the wife and ZX moved to Texas, the United States.

(8)     In 1996, the husband’s electrical company turned public through listing on the Hong Kong Stock Exchange (“the Listed Business”). The husband was a shareholder of the Listed Business until May 2010 but has remained as its Chairman, Managing Director and Executive Director until this day.  He has been performing his work in Hong Kong and in the Mainland.

(9)     In April 1998, the wife gave birth to the parties’ second child of the family, a daughter, in the United States.  I shall refer to this daughter as “LL”.  LL, now 22 years old, is attending university in the United States.

(10)     In September 2000, the wife give birth to the third child of the family, “EA”, also a daughter, in the United States. Subsequent to the birth of EA, in the same year, the wife and all the 3 children moved back to Shanghai. Prior to the relocation, the husband visited them in the United States once a month.

(11)     At about the same time, ie 2000/2001, the husband moved to live in Dongguan.  He lived in a house that he built (“the Dongguan House”) and according to him, it was used as the home for him and his former wife until they separated in 2004.  The husband said the wife then moved to live in the house in 2004.

(12)     The wife accepted that the husband’s former wife did live at the Dongguan House for a year notwithstanding that they had already separated at that time.  She said the husband’s former wife moved back to Hong Kong in 2003 and filed a divorce against the husband.  In the same year, the wife moved to live with the husband in the House.

(13)     In August 2004, the wife gave birth to the parties’ 4^th and youngest child in Shanghai.  He is a boy, now aged 16, and is attending an international school in Shanghai.  I shall call him “AX”.

(14)     In May 2005, the husband divorced with his former wife.

(15)     In May 2010, the husband sold all his shares in the Listed Business but has remained as a director of the company.

(16)     In August 2010, the husband purchased a property in Ho Man Tin (“the 1^st Hong Kong Property”).  The husband said it was for investment purpose and for use as the home for YM (the daughter from the 1^st marriage) and her own family. 

(17)     In 2012, several more properties were purchased:

(1)     A property in Shanghai was purchased in the name of ZX (their eldest son). 

(2)     Another property in Shanghai was purchased in the name of ZX and the wife.

(3)     Another property in Ho Man Tin (“the 2^nd Hong Kong Property”) was purchased in the husband’s name.  The husband said this property was also for investment purpose.  It is common ground that this property has been used as the home for CH (the son from the 1^st marriage) and his own family.

(18)     In July 2013, the parties were married in Las Vegas, the United States.

(19)     Following this in December of the same year, a third property in Shanghai was purchased in the name of ZX.

11.  There is some dispute between the parties over why the ownership of the 3 Shanghai properties were registered in the way they were but I do not think this is relevant to the issue before me.

12.  The parties accepted that in 2014 they had plans to move and live in Hong Kong and tried to look for some suitable properties. This plan, however, was never materialised; at all times they continued to live in Dongguan.

13.  The wife said in or around 2018, her relationship with the husband turned sour.  She moved out of the Dongguan House and returned to Shanghai with ZX, EA and AX.

14.  Several observations can be drawn from the above chronology.

(1)     Prior to the husband’s divorce with his former wife, he already had a relationship with the wife since around 1989.  Four children were born out of this relationship; 3 of them were born before the parties were married in 2013.

(2)     As at the date of the petition (ie 14 June 2018), the parties were living out of Hong Kong.  This has been the situation at least since 2004 for both parties; and on the part of the husband, since 2000/2001.

(3)     All the 4 children of the family were born out of Hong Kong.  They were brought up either in the United States or in the Mainland.  EA (the 3^rd child) started a degree course at a university in Hong Kong in August 2019 (at that time it was already after the wife’s petition and EA was well over 18 years old) but has returned to Shanghai since January 2020.  The daughter was not residing in Hong Kong before August 2019.

(4)     The wife and the children never lived in Hong Kong in any real sense during the parties’ relationship.  In other words, their marital life was never in Hong Kong.

Substantial Connection – Legal Principles

15.  Section 3 of the Ordinance provides that –

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;

(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

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

16.  On the meaning of “substantial connection”, in B v A [2008] 1 HKLRD 43; [2007] 4 HKC 610; [2007] HKFLR 138, Hartmann J (as he then was) said: -

“17. What is capable of constituting a ‘substantial connection’ under s 3(c) is not specified in the Ordinance. But, as Briggs J noted in Savournin v Lau Yat Fung:

“Domicile in a country is obviously a substantial connextion with that country: so may three years ordinary residence be so considered.  Paragraph (c), a substantial connextion with Hong Kong, is in addition to those two requirements.  It is not substituted for them.  A meaning must be given to the phrase wider than domicile or three years ordinary residence.” [my emphasis]

18. As to the meaning of the phrase ‘substantial connextion’, Briggs J said that it was to be given its ordinary meaning.  It is not a term of art.  In my view, that must be right.  As such, it would be wrong to burden the phrase with qualifications, for example, by specifying inter alia that a person must ordinarily reside here for at least a year before he can be considered to have a substantial connection with Hong Kong. An accumulation of such qualifications would reduce the phrase to at term of art and that, I believe, would be contrary to the legislative intent.”

…

22. It is, of course, fundamental that s 3 of the Matrimonial Causes Ordinance confers jurisdiction in respect of divorce proceedings.  In S v S, I spoke of this in the following terms:

“While I accept that in many different respects a substantial connection may be forged in a matter of weeks, or even days, what cannot be ignored, in my judgment, is that the substantial connection which is contemplated in the Ordinance is one which gives jurisdiction to the Hong Kong’s courts in respect of matrimonial causes; that is, to matters going to the dissolution of marriage – still a profound matter in the eyes of the law – and to matters which flow from that, for example, matters of custody and property distribution.”

23. In the circumstances, it seems to me that the factual issue of whether or not a party had a substantial connection with Hong Kong at the time of the institution of proceedings may conveniently be determined by asking two questions.  First did the party have a connection with Hong Kong?  Second, was that connection of sufficient substance; that is, of sufficient significance or worth, to justify the courts of Hong Kong assuming jurisdiction in respect of matters going to, and consequential upon, the dissolution of that party’s marriage?” 

17.  In ZC v CN [2014] 5 HKLRD 43, the Court of Appeal said: -

“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, [15]. In terms of connection, there must be physical presence in Hong Kong, this must be the ground rock of invoking the divorce jurisdiction. But because of the requirement of "substantial", the presence cannot be of a transitory nature otherwise this will encourage "fly in" and "fly out" divorces, a theme that the Court has consistently emphasised, see, for example, Griggs (née Sharp) v Griggs [1971] HKLR 299, Ta Tran Thi Thanh v Ta Van Hung [1981] HKDCLR 37 and more recently S v S, B v A [2008] 1 HKLRD 43.

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

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

See also LN v SCCM (unrep., CACV 62/2013, [2013] HKEC 870) (4 June 2013) and DGC v SLC (née C) [2005] 3 HKC 293.

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

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

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

9.9 It was said in Savournin [1971] HKLR 180, 184 (and also B v A [2008] 1 HKLRD 43, at [20]) that a meaning must be given to substantial connection wider than domicile or three years' ordinary residence. But this is not intended to be interpreted so loosely as to encourage residence of passage (Indyka v Indyka [1969] 1 AC 33 at 105) or divorce of convenience. At the same time it will be unduly restrictive if one confines the connecting factors solely to that of a family context, namely, accommodation in a matrimonial home and presence of spouses and children. While in the majority of cases, family context is the focus of the inquiry and a material factor, there may well be situations where a party is in Hong Kong without the presence of his family, but nonetheless is able to show that he has a substantial connection here. It really depends on the circumstances of the case. Such cases, however, must be regarded as exceptional.” (emphasis added)

18.  The guidance given in ZC v CN was reiterated by the Court of Appeal in LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798 at [44].  In particular, Kwan JA said in LCYP v JEK at [42]:-

“… And as stated in ZC v CN at [9.9], it will be unduly restrictive if one confines the connecting factors solely to that of a family context (matrimonial home and the presence of spouse and children), and while in the majority of cases family context is the focus of enquiry and a material factor, there may be exceptional situations where a party is in Hong Kong without the presence of his family and nonetheless has a substantial connection here.”

19.  To summarize, the legal principles are:

(1)     What is statutorily required under section 3(c) of the Ordinance is not just a “substantial connection” in any ordinary sense but a connection with Hong Kong of substantial substance that warrants the Hong Kong Court to assume jurisdiction to adjudicate on matters going to the dissolution of a marriage(see B v A at [22] – [23], per Hartmann J; and ZC v CN, supra at [53] – [55]). 

(2)     For the purposes of establishing (1) above, one should look at factors such as (a) whether the parties’ matrimonial home is in Hong Kong; (b) what is their past pattern of life; (c) do the parties regard Hong Kong as their home for the time being; (d) do the parties choose to work in Hong Kong; (e) are the children of the family studying in Hong Kong (see ZC v CN at [9.5] & [9.8], per Cheung JA).

(3)     Physical presence in Hong Kong is necessary to the establishment of a connection but because of the requirement of “substantial”, the presence must be real and not merely transitory (see ZC v CN at [9.4], per Cheung JA).

(4)     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 and is clearly not conclusive (see ZC v CN at [9.8], per Cheung JA).

(5)     Whilst a party may have a substantial connection with more than one place, if a party is shown to have a 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 (see ZC v CN at [9.8], per Cheung JA).

(6)     It is only in exceptional circumstances that a party who is in Hong Kong without the presence of his family will nonetheless be able to show that he has a substantial connection here (see ZC v CN at [9.9], per Cheung JA; and LCYP v JEK at [42], per Kwan JA).

Burden of Proof

20.  The burden is on the wife to satisfy the court that it has the jurisdiction to deal with her divorce.  Parties cannot confer jurisdiction on the court if the court does not have one: see W v C (Domicile and Forum) [2013] HKFLR 213.  As said by HH Judge Melloy in RS also known as RR v TS [2020] HKFC 149, FCMC 12767/2018 (date of judgment: 17 July 2020) at [21], “If there is no jurisdiction, then there is no jurisdiction. The fact that the husband did not act promptly and that he had plenty of opportunity to intervene but did not do so, does not mean that jurisdiction is established”.

The Wife’s Case

21.  Not all the assertions pleaded in the petition are relied upon by the wife in the substantive hearing.  Mr Chow, for the wife, accepts the fact that a party has resident status that allows him to live here legally is not determinative in concluding that he has a substantial connection with Hong Kong. This status is only one of the factors to be taken into account.  He may not be living here on a long term basis and only comes here occasionally.  The court should look at other factors such as the party’s past pattern of life, the frequency of his visits to Hong Kong, the length and purpose of the stay, whether the party is engaged in business or work here, whether the rest of the family is here and whether a home has been established here and whether the children are at school here. He emphasizes there is no single determinative factor and the court must take a holistic view on the overall condition of the family.

22.  That said, Mr Chow argues that the court should not focus only on the marital relationship between the parties.  The court should also consider the personal circumstances of each of the parties (amongst others, where did they work in order to provide a living and wealth to the family).

23.  It is Mr Chow’s submission that the husband’s connection with Hong Kong cannot be limited by just looking at the number of days he spent in Hong Kong.  The court should look at his actual ties with Hong Kong. 

24.  When the husband came to Hong Kong in his early years, he had abandoned his huji (戶籍) or identity card in the Mainland.  Mr Chow highlights the fact that the husband has always remained a Hong Kong permanent resident, that Hong Kong has always been his financial hub and where the headquarters of his business is and where most of his savings are. 

The Husband’s Case

25.  It has been emphasized by Mr Chan, counsel for the husband, that the statutorily relevant period to look at and to be considered is the situation as “at the date of the petition” (ie June 2018).  Distant history, much of which is pleaded and apparently relied upon by the wife, is not relevant.  It is unhelpful at all to look too far back into the history: see  CN v YTW [2020] HKFC 146, FCMC 10370/2017 (date of judgment: 16 July 2020) at [17].

26.  Mr Chan submits that as at the date of the petition, the husband did not have a substantial connection with Hong Kong. The facts pleaded by the wife are either too historical or are not sufficient to establish a substantial connection, whether taken individually or cumulatively.  He relies upon the following,

1.     All along, the husband’s residence was in the Mainland;

2.     The parties’ marriage was registered in the United States;

3.     Their matrimonial home was in Dongguan of the Mainland;

4.     The “family unit” was never in Hong Kong, nor did the husband and the wife ever conduct their marriage life in Hong Kong. 

27.  Mr Chan emphasizes that the lack of connection or insubstantial connection with Hong Kong is evidenced by the parties’ travel records.  Within the 3 years preceding the petition, the husband spent a total of 241 days in Hong Kong out of 1,156 only.  In 2018, the husband only spent 43 days in Hong Kong, including 34 same-day returns. The husband said in the event he had to stay in Hong Kong, he often stayed at a hotel. The particulars are as follows:

Year	No of days in Hong Kong (from 1 June 2015 to 31 July 2018)
2015	40 (including 26 same-day returns)
2016	83 (including 71 same-day returns)
2017	75 (including 55 same-day returns)
2018	43 (including 34 same-day returns)
Total:	241

28.  That said, the husband accepts that, technically speaking, his employer (ie the Listed Business) is a Hong Kong company but he in fact conducts his work life in the Mainland, and mainly comes to Hong Kong for business meetings.  The husband also accepts that the couple had plans to move to Hong Kong but it did not materialise as they were not able to find an accommodation that was comparable to the Dongguan House.

Discussion

29.  The only issue to be determined is whether the husband had a substantial connection with Hong Kong for the purpose of the wife’s petition for divorce.  It is undisputed that the wife cannot rely upon her own status to establish the court’s jurisdiction.

30.  Mr Chan urges the court to focus on the situation as at the date of the petition while Mr Chow emphasizes on what happened in the past.  The reality is, as I see it, everyone is with a history. Ultimately, it is a matter of weight to be given to things that happened contemporarily or in the more distant past.  Each case must depend on its own facts.

31.  It is well settled that in an increasingly international and mobile age, just because a person has a substantial connection with one jurisdiction, it does not necessarily follow they he cannot have a substantial connection elsewhere.  We are living in an ever-changing world.  It has been said that since the Covid-19, our way of life would never be the same again.  Things that were taken for granted should be done physically before the Pandemic are now being done remotely with the ease of electronic communications.  Further, with the ease of transportation, in future, for many people, conducting their daily life in more than one jurisdiction, say within the Greater Bay Area, may become an order of the day.

32.  With all these in mind, I agree with Mr Chow that the court must take a holistic view on the overall condition of the family.  I also agree that the court should not just focus on the limited time per-stay the husband spent and how many same day-returns in and out of Hong Kong during the marriage. 

33.  To begin with, I acknowledge that this case, on its facts, is a marginal one.

34.  In my view, the fact that the husband did not have any huji (戶籍) in the Mainland should carry little weight.  As far as I am aware, it is not necessary for the husband to have his Hong Kong permanent resident status renounced in order to live in the Mainland in the way he did for at least the last 2 decades. 

35.  It is neither here nor there that the parties once intended to make Hong Kong their home but the plan did not materialize. An intention would not have made the husband having more connection with Hong Kong.

36.  EA and AX were under-aged at the time of the petition. Yet, it seems clear to me that there was never any dispute over their arrangement.

37.  Mr Chan refers to the fact that there are substantial landed properties in the Mainland, including the matrimonial home, ie the Dongguan House.  He submits it is known to all that Hong Kong Family Court judgments are not enforceable in the Mainland whereas Mainland Judgments are enforceable in Hong Kong (whether directly, by way of common law action on foreign judgment; or indirectly, via Part IIA of the Matrimonial Proceedings and Property Ordinance (Cap 192)). 

38.  I accept what Mr Chan said but it seems to me this issue is more relevant to the forum issue rather than the present jurisdictional issue.

39.  It seems to me that the thrust of the question is whether the presence of the husband in Hong Kong, mainly for economic reasons, is sufficient to constitute a substantial connection for the purpose of the divorce proceeding.

40.  Mr Chow submits that Hong Kong has always remained the economic and finance hub of the family.  In addition to those that I have referred to above, Mr Chows draws upon the following facts.

41.  By 2018, the husband had already been the Managing Director/Chairman and Executive Director of the Listed Business for 2 decades. The husband remotely controls his companies while physically resides on the Mainland.  The objective fact is the husband did not, and does not, have to be physically in the office and monitor his staff on a day to day basis.  He oversees and manages his team remotely and comes to Hong Kong for business meetings.  Nevertheless, Hong Kong has always been his home base in terms of his finances and business.   

42.  The husband said in his Form E (Part 5.5) that he is responsible for the effective running of the board of directors and for planning business strategies and development and overall management of the Listed Business.  He had to be present in Hong Kong for business meetings and, according to the husband’s affirmation, for meeting bankers: see §21 of the husband’s affirmation.

43.  The husband remotely controls his finances, too.  He has been conducting all his financing in Hong Kong, where he receives a lucrative monthly salary and dividends as the Chairman and the Managing Director of the Listed Business to support his family.  His Form E disclosed that his average income per month is $848,000 and this is subject to tax in Hong Kong.  The husband admitted in Form E (Part 5.5) that the comfortable standard of living that the family enjoyed during the marriage was and is made possible with the support of the perks that he has been enjoying as the Chairman and Managing Director of the Listed Business.

44.  The husband has drawn various loan facilities in Hong Kong for his projects in the Mainland.  By way of an example, the husband said he invested a total of $380 million in a real estate project in the Mainland by raising loans, including mortgage loans secured by the 1^st Hong Kong Property and the 2^nd Hong Kong Property. 

45.  Thus, I agree with Mr Chow that the present case is clearly not one where the husband holds some companies and bank accounts in Hong Kong “offshore”.  Given his superior position in the Listed Business, the husband was able to afford (and for that matter, the wife as well) to live in the Dongguan House that offered enviable living environment hard to find in Hong Kong.  The House is about 3,000 m², and is built on a piece of land that measures 40,000 m² and offers great opening space and gardening area with 10 live in helpers and drivers.  While the husband had already been living in Dongguan for a substantial period of time when the wife petitioned for divorce, the husband’s “economic” presence here, if I may so term it, ensured generous financial provision for the benefit of the family.  It cannot be emphasized more that this is the arrangement that this particular family adopted.

46.  On a personal level, the husband returned to Hong Kong to visit CH and YM and for regular medical check-ups.  He also holds executive position as the Honorary President for Life of an Association and participates in various charitable and social events in Hong Kong.  He was interviewed more than once by local newspapers.

47.  I am aware that while two properties (ie the 1^st Hong Kong Property and the 2^nd Hong Kong Property) were bought here, the husband bought more properties in Shanghai.  I consider it is not helpful to look at just the numbers or the values.  The fact that the husband may have a substantial connection with the Mainland does not necessarily mean he does not have a substantial connection with Hong Kong.

48.  Lastly, I think it is important to note that the husband has never ceased to maintain a presence in Hong Kong.  On the evidence before me, I am sure he ceased to be domiciled in Hong Kong at least as from moving back to live in the Dongguan House but he continued to maintain a consistent “economic” and “social” presence in Hong Kong. Leaving aside the fact that he needed to visit his two children from the previous marriage, he had to return to Hong Kong for business meetings, medical check-ups and social events. Mr Chan draws analogy that there are people from Hong Kong having medical check-ups in Bangkok. I do not think this analogy is entirely appropriate. The husband in the instant case is certainly not a tourist to Hong Kong.  If one looks at the history of this husband, his presence in Hong Kong is an unbroken continuity.  The cessation of the husband being domiciled in Hong Kong did not cause his obliteration in the territory. This is not a case where the husband vanished and then resurfaced years later. Instead, he has consistently maintained a presence in Hong Kong that was / is financially significant for the wife and their children. Such presence was certainly not of transitory in nature; nor was it one of “fly-in” and “fly-out”.

49.  Hence, I consider there are exceptional circumstances in this case where even without the presence of his family here the husband had a substantial connection with Hong Kong.

Order

50.  For the reasons aforesaid, the husband’s summons must be dismissed and I so order.

Costs

51.  The costs should follow the event.  I make an order nisi that the husband do pay the wife the costs of his application with counsel certificate, to be taxed if not agreed.