SA formerly known as SA v. SPH

CACV 99/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 99 OF 2012

(On Appeal from HCMC No. 1 of 2011)

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J U D G M E N T

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Hon Cheung JA :

1. The petitioner wife (‘wife’) commenced divorce proceedings in the Hong Kong Family Court in October 2010. Poon J, on the respondent husband’s (‘husband’) application, permanently stayed the Hong Kong proceedings in favour of Germany by reason of forum non conveniens. The judgment, however, provides that the stay is without prejudice to the wife to take out an application under Part IIA of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (‘the MPPO’) after the conclusion of the proceedings in Germany, if so advised. The wife now appeals.

The wife

2. The wife is a German.  She is in her mid 40’s.  She has been living in Hong Kong for over a decade and is a permanent resident here.  She worked as a general manager for a German based Hong Kong company.

3. The wife met the husband who is also a German in Hong Kong in 2005 when he was here on a business trip.  They developed a relationship.  The wife said the husband moved into her then apartment in Conduit Road in August 2006.  The husband said the cohabitation started in September 2007 after he rented an apartment in Coombe Road.

4. In January 2007 the wife left her employment and joined the company (‘Company A’) set up by the husband in Hong Kong.  She also operated her own company here (‘Company B’). Throughout their marriage, Company B had been managed by the husband and derived its business mainly from referrals from the husband’s business.  The wife paid income tax here. 

The husband

5. The husband is in his late 40’s.  He is a successful specialist in luxury hotel interior design.  His business is based in Cologne, Germany, which he began some 20 years ago.  It has since grown internationally over the years.  He now has a business presence in different parts of the world including Hong Kong, which he regards as a gateway to enter into the Mainland and Asia Pacific.  In around 2006, he set up Company A, a hotel interior design company, in Hong Kong.  He is its CEO.  Company A’s business is funded with a $6 million loan from a local bank HSBC.  He paid income tax in Hong Kong.

The marriage and its breakup

6. The husband proposed to marry the wife in February 2007.  At that time he was already married and he obtained a divorce in Germany in July 2007.  He married the wife in Hong Kong on 15 February 2008.  The marriage was registered with the Family Court of Berlin Germany.  Prior to the marriage the parties signed a Pre-nuptial Agreement in Germany on 17 December 2007. 

7. Marital discord later occurred and by February 2010 the relationship began to deteriorate.  In September 2010, the husband wanted a divorce and on the instruction of the husband, a Separation Agreement was prepared by a German notary (‘the Notary’) and sent to the parties in Hong Kong on 7 September 2010.  On 9 September 2010 the wife who had flown back to Germany signed the Separation Agreement in front of the Notary.  The husband authorised a German tax advisor (the ‘Tax Advisor’) to sign the Separation Agreement on his behalf. 

8. The wife then moved to her present accommodation in Old Peak Road.  The husband has since not returned to that home.  The husband’s counsel informed the Court that the husband is no longer living in Hong Kong although his exact whereabouts are not disclosed.  However, the husband in his five affidavits filed in these proceedings gave a Hong Kong address, namely his office address (this is wrong as Order 41, Rule 1(4) of the High Court Rules stipulates the requirement of a residential address, unless the deponent is giving evidence in a professional, business or other occupational capacity).

9. The husband applied to stay the Hong Kong proceedings on 23 November 2010 and applied for divorce in Germany in the ‘Amtsgericht Berlin-Schöneberg’ (Family Court in Berlin) on 30 December 2010.

The Pre-nuptial Agreement

10. Under the Pre-nuptial Agreement, the marriage was to be governed by German law.  The husband and the wife further agreed that the businesses and assets listed in the agreement shall be excluded from their family assets after marriage and free from any matrimonial claims.  The husband’s assets comprised of his interest in the two companies set up in Hong Kong, including Company A, and some other companies in Germany and elsewhere.

The Separation Agreement

11. The Separation Agreement cancelled the Pre-nuptial Agreement.  The Judge summarised the terms of this agreement.  The husband would pay for the tenancy of the matrimonial home until 30 September 2012.  His company would continue to pay the wife the existing agreement (which is a monthly payment of £10,000 until 30 September 2012).  The wife would sell a wine collection to a company owned by a friend of the husband’s at the cost price of €200,000.  The husband would continue to bear the monthly fee of €500 for the accommodation of a horse he previously bought for the wife as a gift for two years.  He would pay the wife for a period of two years her insurance in Germany of €1,200 per month.  The husband agreed to pay the wife’s parents an allowance of €20,000 should his company (‘Company C’) terminate the tenancy which enabled them to stay at a property owned by the husband in Germany.  It was finally agreed that all the claims for compensation and all possible divorce consequences had been arranged for.  Mutual claims shall not exist anymore after the execution of the Separation Agreement.  Mutual maintenance shall not be owed as both are in a position to support themselves.  In any event, the parties would waive the maintenance mutually.  In the event of the initiation of a divorce proceeding only one of them shall be represented by counsel.

The principles

12. I will repeat the principles applicable to a stay application as stated by this Court (Cheung JA and Tang JA (as he then was)) in DGC v. SLC (née C) [2005] 3 HKC 293, 297E-298B. This Court applied the principles as stated in leading authorities such as Spiliada Maritime Corporation v. Cansulex Limited [1987] 1 AC 460, 477E and Louvet v. Louvet [1990] 1 HKLR 670, 674I-675D :

‘ 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.

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.

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.’

Reasoning of Poon J

13. The reasoning of the Judge for staying the Hong Kong proceeding is as follows :

1)   While a number of factors point to Hong Kong as the appropriate forum, there are other factors which connect the case to Germany.  Two factors are of major importance.  First, there is a dispute whether the husband still owns a property in Germany, the investigation is best carried out and determined in Germany.  Second, the parties have signed the Pre-nuptial Agreement and Separation Agreement.  They were executed in Germany.  The former provides that German law is the parties’ choice of law. Clause 16 of the latter provides that all the agreements to be made between the parties have been arranged for, in the event of the initiation of a divorce proceeding, only one of the parties shall be represented by counsel and the husband will bear the costs thus arising.  It is reasonably arguable that the parties had, by necessary implication, designated Germany as the forum for their divorce under Clause 16.  Further since the validity of these two agreements is seriously disputed by the parties, Germany is distinctly the more natural and appropriate forum.  Most of the vitiating events relied upon by the wife took place in Germany.  Material witnesses, namely, the Notary and Tax Advisor who signed the Separation Agreement for the husband are located in Germany.  On such basis, Germany is the more natural and appropriate forum.

2)   In terms of juridical disadvantage that the wife may suffer if the divorce is to be conducted in Germany, the Judge held that, first, the wife is entitled to dispute the validity of the agreements before a German Court with her own legal representation.  There is no suggestion that the German Court will not entertain her challenge, so the wife will not suffer any disadvantage in this regard.  Should the wife succeed in her challenge and the agreements are set aside, there is no suggestion that she will suffer any real prejudice, financial or otherwise, in the German Court.  Second, the Judge accepted the wife’s juridical disadvantage argument that she will suffer disadvantage in the event that the agreements are held to be valid, the German Court will strictly apply them, thus severely restricting her entitlement to ancillary relief.  This is to be contrasted with the recent common law approach held in Radmacher (Formerly Granatino) v. Granatino [2010] 2 FLR 1900 that the Court will need to consider the prevailing circumstances to see whether it is fair to hold the parties to their agreement.

3)   In respect of the balance of conflicting interests, the Judge held that even if the German Court should find that the agreements are valid and simply apply them, the wife may still come back to Hong Kong to make an application under Part IIA of the MPPO for additional financial relief which she said she has been unfairly deprived of.

Effect of the agreements

14. In the English Supreme Court decision of Radmacher, it is held that the Court should give effect to an ante or post-nuptial agreement that was freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement (see [75] per Lord Phillips of Worth Matravers andothers).  It is irrelevant if the agreements have or do not have contractual status.  Lord Philips and others held at [62] that : 

‘ [62]……The value of a contract is that the court will enforce it. But in ancillary relief proceedings the court is not bound to give effect to nuptial agreements, and is bound to have regard to them, whether or not they are contracts.’

15. The Supreme Court considered at [67] the issues relevant to such agreements as follows :

1)   Were there circumstances attending the making of the agreement that detract from the weight that should be accorded to it?

2)   Were there circumstances attending the making of the agreement that enhance the weight that should be accorded to it; the foreign element?

3)   Did the circumstances prevailing when the court’s order was made make it fair or just to depart from the agreement?

16. In respect of the first issue of circumstances that detract from the weight to be accorded to the agreement, it was held that,

‘ [68] If an ante-nuptial agreement, or indeed a post-nuptial agreement, is to carry full weight, both the husband and wife must enter into it of their own free will, without undue influence or pressure, and informed of its implications.

[69]…..whether there was any material lack of disclosure, information or advice. Sound legal advice is obviously desirable, for this will ensure that a party understands the implications of the agreement, and full disclosure of any assets owned by the other party may be necessary to ensure this. But if it is clear that a party is fully aware of the implications of an ante-nuptial agreement and indifferent to detailed particulars of the other party’s assets, there is no need to accord the agreement reduced weight because he or she is unaware of those particulars. What is important is that each party should have all the information that is material to his or her decision, and that each party should intend that the agreement should govern the financial consequences of the marriage coming to an end.’

17. In this connection, it was held that,

‘ [71]……The first question will be whether any of the standard vitiating factors, duress, fraud or misrepresentation, is present. Even if the agreement does not have contractual force, those factors will negate any effect the agreement might otherwise have. But unconscionable conduct such as undue pressure (falling short of duress) will also be likely to eliminate the weight to be attached to the agreement, and other unworthy conduct, such as exploitation of a dominant position to secure an unfair advantage, would reduce or eliminate it.’

18. In respect of the second issue of circumstances that enhance the weight, it was held that,

‘ [74]……When dealing with agreements concluded in the past, and the agreement in this case was concluded in 1998, foreign elements such as those in this case may bear on the important question of whether or not the parties intended their agreement to be effective. In the case of agreements made in recent times and, a fortiori, any agreement made after this judgment, the question of whether the parties intended their agreement to take effect is unlikely to be in issue, so foreign law will not need to be considered in relation to that question.’

19. Finally in respect of the circumstances in which it will not be fair to hold the parties to the agreement, it was held that,

‘ [76]……This will necessarily depend upon the facts of the particular case, and it would not be desirable to lay down rules that would fetter the flexibility that the court requires to reach a fair result.’

20. The Court, however, went on to give some guidance, such as children, autonomy, non-matrimonial property and future circumstances.

21. The Hong Kong Court of Final Appeal has yet to consider whether the Radmacher approach should be adopted here.

The wife’s case on the agreements

22. The wife in this case wishes to challenge the validity of the agreements.  She said the Pre-nuptial Agreement was signed without proper financial disclosure by the husband and without independent legal advice on the same day when it was presented to her by the husband for signature in Germany.  She only signed it because the husband told her previously it was just to protect her from his business liabilities.  In respect of the Separation Agreement, there was no financial disclosure by the husband, nor did the wife have the opportunity to obtain any independent legal advice nor any time to consider the content.  She wished to challenge the Separation Agreement by reason of duress.

My view

23. The decision to stay is, of course, a discretionary remedy with the attendant restraints imposed on an appellate court in overturning the decision.  However, in my view the decision is plainly wrong.  Although the Judge has referred to the applicable principles, he has not truly applied them in the present case.  

1)  Proceedings in Hong Kong as of rights

24. It is important to bear in mind that the burden is on the husband who has to show that not only Hong Kong is not the appropriate forum but Germany is distinctly more appropriate than Hong Kong.  In this connection, proper regard should be paid to the fact that jurisdiction has been found by the wife in Hong Kong as of right (Spiliada 477E and DGC at paragraph 14).  The wife must have satisfied the ‘habitual residence’ and ‘substantial connection’ requirement in order to found jurisdiction under section 3 of the Matrimonial Causes Ordinance (Cap. 179).  The wife clearly is entitled to commence the proceedings in Hong Kong as of right.

25. Lord Goff in Spiliada gave the example of someone who is served with the proceedings while he is temporarily within the jurisdiction and held that that in such a situation it is easier to challenge the appropriateness of the jurisdiction.  The corollary must be that proceedings which have been commenced here as of right must not be lightly dislodged.  This, in my view, is the practical effect of giving due weight to this factor.

2)  Real and substantial connection

26. Lord Goff observed in Spiliada at 474E and 476C the issue on stay is not simply of ‘mere practical convenience’ but of the suitability or appropriateness of the relevant jurisdiction for the interests of all the parties and the ends of justice.  ‘Appropriateness’ in this context means the forum which has the most real and substantial connection with the action.  The connecting factors include not only factors affecting convenience or expense (such as availability of witnesses) but also other factors such as the law governing the relevant transaction and the places where the parties respectively reside or carry on business (Spiliada, page 478B, DGC, at paragraph 12).

27. Leaving aside the issue concerning the two agreements, the real and substantial connection of the parties to Hong Kong is overwhelming.  Apart from the fact that the wife has a long association in Hong Kong, the parties have conducted their relationship and married life from beginning to end in Hong Kong.  Hong Kong is the place where they set up their matrimonial home.  The other factors referred to by the Judge pale into insignificance when the substantial Hong Kong connection is put into proper context.  The factors referred to by the Judge were that both parties are German nationals with family ties there.  They went back to Germany for family and vacation purposes on a number of occasions during their marriage.  The husband’s business is essentially based in Cologne, Germany although he has an international business presence at different places including Hong Kong.  The husband often flew back to Germany to attend to his business.  He also has a flat in Germany.  This is the lifestyle of many of the expatriates living here.  The fact that the husband has commenced divorce proceedings in Germany does not add any more weight to the equation. 

28. It is of note that according to the husband’s German law expert, Dr. Palm, the parties do not have habitual residence in Germany and the jurisdiction of the Amtsgericht Berlin-Schöneberg is based on the fact that the spouses never had a common habitual residence in Germany and that neither spouse had its habitual residence in Germany when the application for divorce was filed. Reference was made to Section 122 (6) of the German Law on the Procedure in Family Matters and Non-Contentious Matters [FamFG]).

3)  The three issues

29. There are three issues that call for determination by the Hong Kong Courts in the Hong Kong proceedings.  First, the divorce.  Second, the applicability of the agreements (both in respect of the issue whether the agreements have been vitiated by duress and also the weight to be given to the agreements).  Third, if the agreements are not to be given effect, what should be the financial relief to be given to the parties.  In respect of the last issue the Court is required to consider the circumstances of the case including the seven factors identified in section 7 of the MPPO.

30. Under German law there is a restriction to apply for divorce within one year of the parties’ separation.  Hence Hong Kong was the only jurisdiction open to the wife when she commenced divorce in October 2010.  More importantly I really cannot see why Hong Kong is not an appropriate forum to address these issues, let alone Germany can be said to be more distinctly appropriate than Hong Kong in trying these issues.  The determination of the divorce, the applicability of the agreements by reference to the circumstances of their execution, the construction of the terms of the agreements and the provision for financial relief for couples with an international background with assets located at different jurisdictions are the type of cases that the Hong Kong Courts regularly handle.  The Courts in Hong Kong regularly address foreign law issues in view of the unique position of Hong Kong as an ‘international’ city in terms of its cross border commercial activities and presence of a very large expatriate community who lives and works here. 

4)  The parties’ choice of Germany

31. Mr. Sussex SC together with Ms Frances Irving (counsel for the husband) emphasised that the parties have by choice given their marriage a distinct German bias.  First before the marriage, they entered into the Pre-nuptial Agreement which provided German law to be the choice of law and in contemplation of divorce, they entered into the Separation Agreement.

32. However, these agreements did not provide for Germany to have exclusive jurisdiction on divorce.  In any event, in view of the wife’s challenge, the applicability of the agreements is an issue that requires to be tried.  Before the hearing of the application for stay, the Judge had ordered a preliminary issue to be tried as to the weight to be attached to the agreements prior to the determination of other issues of ancillary relief.  The issue as to ‘weight’ clearly is a reference to the Radmacher approach.  Expert evidence on German law has already been filed by the parties.  The German Notary and Tax Advisor may have to testify in Hong Kong (so far there are no witness statements from them), but this is a matter affecting convenience or expense only.  Further as Mr. Coleman S.C. together with Mr. Timothy Parker, counsel for the wife, submitted, these two persons have previously travelled to Hong Kong to attend the couples’ wedding.  At the same time if the case is to be tried in Germany, then the parties and a Hong Kong witness (an employee of the husband) will have to travel there to attend court.

33. As to the applicable law, Hong Kong law applies in respect of the jurisdiction on ancillary relief.  The common law position is summarised in Radmacher at [103].  It addressed the English position which has not adopted the relevant European regulations on maintenance :

‘ [103] In England, when the court exercises its jurisdiction to make an order for financial relief under the Matrimonial Causes Act 1973, it will normally apply English law, irrespective of the domicile of the parties, or any foreign connection: Dicey, Morris and Collins on the Conflict of Laws (Sweet and Maxwell, 14^th edn, 2006) vol 2, r 91(7), and eg C v C (Ancillary Relief: Nuptial Settlement) [2004] EWCA Civ 1030, [2005] Fam 250, [2005] 2 WLR 241 sub nom Charalambous v Charalambous [2004] 2 FLR 1093, at para [31].’

34. In Radmacher the parties signed an ante-nuptial agreement in Germany in 1998 with a German choice of law clause.  The couple divorced in England and the husband applied for financial relief.  The Supreme Court held that,

‘ [108] In summary, the issues in this case are governed exclusively by English law. The relevance of German law and the German choice of law clause is that they clearly demonstrate the intention of the parties that the ante-nuptial agreement should, if possible, be binding on them (see para [76] above).

35. Likewise in this case, this choice of German law is one of the factors to be considered in considering the applicability of the agreements.

36. If the husband wishes to dislodge Hong Kong as the appropriate forum in which the wife has founded jurisdiction as of right, then the husband has to show more than mere practical inconvenience or expenses are involved in having the hearing in Hong Kong.  In my view the husband has simply failed to satisfy the test that Hong Kong is not the appropriate forum and Germany is distinctly the more suitable and appropriate forum to address these issues.  If the husband fails at this stage, then that will be the end of his application because the Court will ordinarily refuse a stay if there is no other forum which is clearly more appropriate for the trial of the action.

37. Mr. Sussex stressed that the Judge had exercised a discretion and unless the decision is plainly wrong this Court should not disturb the decision.  In my view the decision to stay the Hong Kong proceedings is clearly an exercise of discretion.  However, in order to arrive at this decision, the Court is required to make proper findings on the real and substantial connection point and, in my view, the Judge has clearly erred.  This provides the basis for the Court to interfere.

5)  Juridical disadvantages

38. Having found that the Judge had erred on the substantial connection point, it is strictly not necessary for me to address the other points raised by the parties.  I will, however, do so out of respect to the submissions by counsel on these issues.

39. The Judge found that the wife will suffer a juridical disadvantage if the Hong Kong proceeding is stayed.  This is, of course, on the premise that the German Court upholds the validity of the agreements.  In such a case the terms of the agreements will be strictly applied without a further inquiry to the weight to be given to the agreements.  In my view the Judge must be correct on this point.  The issue of weight and unfairness will not be available to the wife if the German Court is to find the agreements valid.  Lord Templeman observed in de Dampierre v. de Dampierre [1988] 1 AC 92 at 102 that :

‘ I agree with his [i.e. Lord Goff’s] approach and with his conclusion that the common law test of justice as between plaintiff and defendant in commercial disputes corresponds to the statutory test of fairness as between husband and wife in matrimonial disputes. The court must identify and evaluate the advantage claimed by the wife. There are many circumstances in which it would be unfair to the wife to deny her the advantage of claiming maintenance from an English court….The extent of the possible disadvantages to a wife if she is confined to her remedies in a foreign forum is another relevant circumstance.’

40. Mr. Coleman has identified another juridical disadvantage to the wife which he said the Judge has not recognized.  As identified in the report of the wife’s German law expert, Dr Scherpe, the substantive law going to the formal validity of such agreements is substantially less advantageous in Germany.  In particular, under German law, there is apparently no requirement for full financial disclosure or access to independent legal advice.  The wife says she had no opportunity even for such advice, and was acting under duress.  As Mr. Coleman submitted, under Hong Kong law, these would, at least potentially, constitute vitiating factors.  The access to legal advice issue takes on particular importance in the context of the husband’s admittedly close and life-long relationship with the Notary, whose presence is intended to fulfill, at least in part, the role that in Hong Kong would be played by proper legal representatives.  The more lax requirements in this regard under German law constitute another substantial juridical disadvantage.  I agree with this view.

6)  Balancing conflicting interest

41. In respect of the balance of the conflicting interest, it is important to bear in mind that the requirement is whether despite the juridical disadvantages that the wife may suffer, she will nonetheless get substantial justice in Germany. The focus at this particular inquiry is on Germany.  Hence any reference to Part IIA of the MPPO is irrelevant.  The Judge ordered that the stay is without prejudice to the wife bringing the Part IIA proceedings in Hong Kong in the future.  If, as the Judge found, there will be juridical disadvantage by the wife in Germany, this will only be overcome by the Court’s view that substantial justice can be achieved in Germany.  The availability of Part IIA in the event that the German financial provision is inadequate is clearly not an answer to this issue.

42. Without finally deciding on the matter, it does appear that the wife may encounter difficulties when she tries to bring the Part IIA proceedings in the future because leave to proceed will only be granted if ‘there is substantial ground for the making of an application for an order for financial relief.’  By staying the Hong Kong proceedings, the Hong Kong Court has already considered Germany to be the appropriate forum where substantial justice can be given to the wife.  The stay encompasses a conclusion that the interests of the parties and ends of justice are best served in Germany.  In the circumstances the wife may not be able to satisfy the ‘substantial ground’ requirement in the leave application.  This in fact highlights the circuitous nature of the consideration based on Part IIA.

43. The equivalent of Part IIA is Part III of the Matrimonial and Family Proceedings Act 1984 (‘the 1984 Act’).  Although in Ella v. Ella [2007] 2 FLR 35, the English Court of Appeal referred to the possibility that the wife can still make a claim under Part III of the 1984 Act after the English proceeding is stayed in favour of Israel, it did not discuss the relevance of the provisions to the question of whether the wife there could obtain substantial justice in Israel if the English proceeding was stayed. Further the full implications of the order for stay on the future leave application were not discussed.  In that case, the husband successfully applied to stay the English divorce proceedings in favour of the Rabbinical Court in Israel.  The case is clearly distinguishable.  As Thorpe LJ observed the most significant factor in that case was that,

‘ [10]……Here, far from applying in Tel Aviv for a stay on the basis that this was clearly a London case, the wife’s duly instructed lawyer entered into an agreement which, if not accepting the jurisdiction of the Rabbinical court root and branch, made sufficient acceptance predictably to lead to root and branch determination there.’

44. In my view Part IIA of the MPPO cannot be a proper factor to be considered in an application for stay.

7)  Multiple proceedings

45. The husband has instituted divorce proceedings in Germany.  The wife’s German lawyer claimed the documents have not been served on her.  The husband’s lawyer claimed that the divorce petition has been properly served by public notice.  This method was adopted because, rather surprisingly, the husband apparently informed the German Court that he did not know the address of the wife.  The wife’s German lawyer stated in her letter of 15 January 2013 that she would apply for the dismissal of the husband’s German proceedings by reason of the Hong Kong proceedings.  She further stated that the German Court will defer to the Court of Hong Kong if Hong Kong retains jurisdiction of the present proceedings.  This is disputed by the husband’s lawyers.  However a translation of the German Court order dated 20 November 2012 stated that,

‘ We advise the plaintiff, that the application dated 30.12.2012, which is already being served, is not valid if there is an earlier Divorce Law Case pending in Hong Kong.’

46. These are not matters I need to decide.  More importantly, the presence of multiple proceedings if the Hong Kong proceeding is not stayed is not a hurdle to a refusal to stay.  I will repeat what this Court said in DGC at paragraph 21 :

‘ In any event this problem will not by itself cause the Hong Kong proceeding to be stayed because ultimately the real issue is still whether Hong Kong is not the appropriate forum to try the case. Lord Diplock in The Abidin Daver [1984] 1 AC 398 has clearly stated that,

… but as a general rule the fact that to permit the England action to be pursued would result in concurrent actions on the same subject matter proceeding in two different jurisdictions could not be sufficient to justify depriving the plaintiff of the advantage to which he was entitled, if an English court of competent jurisdiction could be found, to choose it as the forum in which he preferred to litigate matter.

A similar view as expressed by Liu JA in Nan Tung Bank Ltd, Zhu Hai.’

Conclusion

47. Accordingly the appeal is allowed and the order of the Judge is discharged with a provisional order that costs here and below be granted to the wife.  There shall be a certificate for two counsel.

Hon Fok JA :

48.  I agree with the Judgment of Cheung JA.

Hon Lam JA :

49.  I agree.