CHONG WAI KWAN v. ZHANG JIU AI AND ANOTHER

DCMP 2547/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2547 OF 2013

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DECISION

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1. This is the 2^nd Respondent’s application to strike out the Applicant’s claim against her on the grounds of abuse of process. Alternatively, the 2^nd Respondent seeks a stay of proceedings on grounds of forum non conveniens.

THE APPLICANT’S CASE

2. I set out a summary of the salient facts of the Applicant’s case below.

3. The 1^st Respondent is the Applicant’s birth mother and the 2^nd Respondent is the Applicant’s purported adoptive mother. Chong For is the Applicant’s paternal uncle and the purported adoptive father. Chong Dai Tai is the adopted daughter of Chong For and the 2^nd Respondent.

4. In 1967, the Applicant was formally adopted by Chong For and the 2^nd Respondent.  At the time, the Applicant was 5 years old and all parties were residing in Mainland China.  

5. In 1974, Chong For moved to Hong Kong.  Sometime later, Chong For requested the Applicant to come live with him in Hong Kong.  In 1978 the Applicant illegally entered Hong Kong and started living with Chong For and the 2^nd Respondent.

6. In late 2009, Chong For died intestate.  In 2010, the Applicant commenced proceedings against the 2^nd Respondent and Chong Dai Tai in the Shenzhen Futian People’s Court (“the People’s Court”) to claim an interest in Chong For’s estate by reason of being the adopted son.  On 14 April 2011, the People’s Court dismissed the Applicant’s action after trial.

7. The Applicant appealed against the decision.  On 31 October 2011, the Shenzhen Intermediate People’s Court (“the Intermediate People’s Court”) dismissed the appeal.

8. The Applicant further applied for a review of the appellate decision and the application for review was dismissed by the Intermediate People’s Court on 5 September 2013.

9. On 3 October 2013, the Applicant issued the originating summons of this present action seeking a declaration that the 1^st Respondent is not the Applicant’s mother and that Chong For (deceased) and the 2^nd Respondent are the Applicant’s adoptive parents.

2^ND RESPONDENT’S CASE

10. The details of the 2^nd Respondent’s case are not important for the purposes of this decision. Suffice to say, the 2^nd Respondent denies the Applicant is the adopted son of Chong For and herself. 

ABUSE OF PROCESS

The law

11. Counsel for the Applicant submitted that in considering whether there was an abuse of process, this court was bound to consider whether the PRC judgments were final. I do not accept that submission. The doctrine of abuse of process and res judicata are separate and distinct concepts, though they may seem similar: see Johnson v Gore Wood & Co [2002] 2 AC 1 at 29H citing the case of Bradford and Bingley Society v Seddon [1999] 1 WLR 1482.

12. Lord Sumption JSC in the case of Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] AC 160 at paragraph 17 set out the legal principles that are commonly denoted by the term res judicata but have different juridical origins.  He classified the broad concept of abuse of process as being one such principle.

13. The doctrine of abuse of process is extensively and comprehensively set out by Chief Justice Ma in the case of Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72 at paragraphs 82 - 85.

14. In summary, when considering the Henderson v Henderson type of abuse of process, the court must consider all factors and balance the interest of all parties involved, including other litigants in the court process.  The court must bear in mind the dangers of pre-empting a party from litigating a valid claim when considering striking out applications based on abuse of process.  On the other hand, the court cannot allow its process to be used in such a manner so as to bring disrepute to the administration of justice.

15. In considering the 2^nd Respondent’s arguments, I note that mere re-litigation or the maintenance of proceedings which could have been part of an earlier set of proceedings, per se, are not necessarily an abuse of process: see Johnson v Gore Wood & Co at 30D.

16. Similarly, the existence of an ulterior motive, per se, is not determinative of whether the proceedings are an abuse of process.  In the case of Smith v Linskills [1996] 1 WLR 763 at 770G onwards, Sir Thomas Bingham MR, in citing the case of Walpole v Partridge & Wilson [1994] QB 106, agreed with the cited dictum that any collateral purpose is “relevant to the assessment of the case and to the exercise of the court’s discretion for the purpose of deciding whether it is shown so clearly to be an abuse of process that the proceedings should be struck out.”

Discussion

17. Counsel for the Applicant confirmed the purpose of commencing proceedings in Hong Kong is to obtain a declaration so that the PRC proceedings could be re-opened.  Counsel clarified the gist of their case to be as follows: the Applicant will ask the Hong Kong courts to decide whether the Applicant was adopted by Chong For in 1967.  If the court finds in favour of the Applicant, the adoption in the PRC should be recognized in Hong Kong pursuant to section 17 Adoption Ordinance (Cap 290) and a declaration should be granted pursuant to section 6 Parent and Child Ordinance (Cap 429).

18. On a reading of the PRC judgments, it is evident the Applicant has changed the factual basis of his case in the present proceedings from that he advanced in the PRC proceedings.  In the People’s Court, the Applicant claimed he had established an adoptive relationship with Chong For prior to 1978 (see page 9 of judgment) and was formally adopted by Chong For after he arrived in Hong Kong in 1978 (see page 4 of the judgment).  The Applicant never sought to argue he was formally adopted prior to 1978.  

19. In the Intermediate People’s Court, the Applicant claimed his birth father and Chong For had an intention the Applicant be adopted by Chong For prior to 1978.  The Applicant conceded the adoption was not confirmed until he commenced living with Chong For in Hong Kong.  Hence he conceded he could not have established an adoptive relationship with Chong For prior to October 1978 (the time when the Applicant came to Hong Kong).  

20. The case now put forward by the Applicant is entirely different.  The Applicant now claims he was formally adopted in 1967.  Furthermore, the Applicant claims he lived with Chong For after he was formally adopted (see paragraph 29 of the Applicant’s first affirmation.) These new assertions are directly contradictory to the Applicant’s concession made before the Intermediate People’s Court, that is, he could not have established an adoptive relationship with Chong For prior to 1978.

21. In the Applicant’s 3^rd Affirmation he explained: “I never thought about the need to tell my PRC lawyers the circumstances of my adoption in 1967 nor was I asked by any of them. During the entire PRC proceedings, I never realised nor was I advised by my PRC lawyers at that time that the circumstances of my adoption and the year it took place were significant to proof [sic] of my adoptive relationship with Chong For.”

22. However I find the Applicant’s explanation to be disingenuous. Firstly it is evident he did not place the facts relating to the 1967 adoption before the PRC courts because that was never his case advanced in the PRC proceedings. Secondly, the Applicant must have known his claim in Chong For’s estate was entirely dependent on whether he could establish he was the adopted son. It is virtually impossible for the Applicant to fail to appreciate the importance of the facts relating to the adoption. The Applicant has failed to provide a good reason why he has never once asserted in the PRC courts he was adopted in 1967, despite being legally represented throughout the PRC proceeding and having attended court on 3 occasions. 

23. I am of the view the Applicant’s attempt to rehash his case and then to re-litigate the same issues on new facts to be a misuse of the Hong Kong judicial process. The Applicant cannot be permitted to tailor his case as and when it suits him. I am of the view that if the Applicant is permitted to proceed to litigate his case in these courts, it would condone the use of Hong Kong courts as a forum to re-litigate cases on a set of facts that are in direct conflict with those raised in other courts of law in the hope of obtaining a favourable ruling. This would bring the administration of justice into disrepute.

24. Furthermore, it would be unfair and potentially embarrassing for the 2^nd Respondent to defend the same issues on a factual basis different from that raised in the PRC proceedings.  Not only would the 2^nd Respondent be vexed with litigating the issues the fourth time, but her defence to the new facts may be adversely hindered by any admission or concession she made in the PRC proceedings.

25. By reason of the matters set out above, I find there to be an abuse of process.

FORUM NON CONVENIENS

26. Even if I am wrong to find there to be an abuse of process, I would nevertheless stay the action on the basis that Hong Kong is not the proper forum for these proceedings.

27. The well-known 3-stage test when considering whether a stay should be granted on forum non conveniens is set out in the case of The Lanka Muditha [1991] 1 HKLR 741 as follows:-

“(I) Is it shown that Hong Kong is not only not the natural and appropriate forum for the trial, but that there is another available forum which is clearly or distinctly more appropriate than Hong Kong…

(II) If the answer to (I) is yes, will a trial at the other forum deprive the plaintiff of any legitimate personal or juridical advantages. The evidential burden here lies on the plaintiff.

(III)  If the answer to (II) is yes, a court has to balance the advantages of (I) against the disadvantages of (II) ...  Deprivation of one or more personal or juridical advantages will not necessarily be fatal to the Applicant provided that the court is satisfied that notwithstanding such loss substantial justice will be done in the available appropriate forum ...  Proof of this ... rests upon the Applicant for the stay.”

28. On the first question, I find Mainland China to be the more appropriate forum for the Applicant’s application.

29. The witnesses and documents involved in this case are partly located in Hong Kong and partly located in Mainland China.  Hence the location of witnesses and evidential documents are not decisive as to the location of the proper forum.

30. The applicable law in the Applicant’s case for adoption is the PRC law as at 1967.  The act of adoption occurred in Mainland China.  These factors weigh in favour of the PRC courts being the appropriate forum.

31. I note the Applicant’s first choice of forum was Mainland China.  The Applicant must have known his adoption status was determinative of his claim in Chong For’s estate.  In spite of Hong Kong being an available forum to him all along, the Applicant nevertheless chose to commence the proceedings in Mainland China first rather than Hong Kong. According to the Applicant, he has yet to exhaust all judicial remedies in the PRC.  If the Applicant has evidence of having been adopted in 1967, it is open to the Applicant to re-open his case in the PRC by putting forward evidence of events relating to the adoption that purported occurred in 1967. In such circumstances, the PRC courts must be the more appropriate forum for the Applicant’s action by reason of being previously seized of the same issues.

32. In respect of the second question of the 3-stage test, I do not find litigating in the PRC will deprive the Applicant of any legitimate personal or juridical advantage.  As noted earlier, the Applicant had voluntarily submitted himself to the jurisdiction of PRC previously when he commenced his claim against the 2^nd Respondent in the People’s Court.

33. The only “disadvantage” the Applicant can pinpoint is that he cannot re-open his case in the PRC without new evidence.  This cannot be classified as a loss of personal or juridical advantage.  If he cannot adduce new evidence, that is a weakness in his case which could not be remedied even if he commenced proceedings in Hong Kong.

34. However, if the Applicant does not have new evidence but merely seeks to advance a new case in the Hong Kong courts in hope of obtaining a declaration directly contradicting the findings of the PRC courts, the Applicant is forum shopping. This cannot and will not be allowed.

35. Considering the matters set out above, I find that the PRC courts are the more appropriate forum.

SUMMARY

36. For reasons set out above, I find there to be an abuse of process and I therefore strike out the Applicant’s action against the 2^nd Respondent.

37. Litigants whom are found to have abused the process of the court should be expected to pay costs of the other party on an indemnity basis.

38. I make a costs order nisi that the Applicant do pay the 2^nd Respondent’s costs of this application on an indemnity basis to be taxed if not agreed, with certificate for Counsel.  Unless any party applies to vary the costs order within 14 days hereof, the costs order shall become an order absolute.