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FCMC 10248/2023
[2024] HKFC 214
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MATRIMONIAL CAUSES
NO. 10248 OF 2023
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BETWEEN
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FWM |
Petitioner |
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and
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NXC |
Respondent |
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| Coram: |
His Honour Judge S. Lo in Chambers (Not Open to Public) |
| Date of Respondent’s submissions: |
1 August 2024 |
| Date of Petitioner’s submissions: |
13 August 2024 |
| Date of Decision: |
28 November 2024 |
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DECISION
( Leave to Appeal )
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1. This is the application taken out by the respondent (“H”) for leave to appeal against the Judgment handed down by me on 18 July 2024 (Re: Jurisdiction and Forum Non Conveniens) (“Judgment”).
2. In so far as applicable, I would use the same abbreviations as that in the Judgment[1].
Legal principles regarding leave to appeal
3. Section 63A(2) of the District Court Ordinance (Cap. 336) provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.
4. The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125.
Ground 1
5. H argued that I underplayed the importance of the physical presence of H in making the determination of substantial connection.
6. Indeed, I never denied its importance in the Judgment, but it is not the only factor which the court has to consider. Similarly, permanent resident status in Hong Kong is also one of the factors but never a conclusive factor. In any event, I find that H’s presence in Hong Kong was real and not merely transitionary.
7. Eventually, the issue of “substantial connection” is a question of fact, which is “highly fact sensitive” as said in para. 25 of Z v K [2019] HKFC 68.
8. This ground has no merit.
Grounds 2 and 3
9. H contended in these 2 grounds that I placed (i) excessive reliance on his business and social presence and (ii) excessive reliance on the parties’ residential status.
10. In my view, the court needs to have an overall consideration by taking all the relevant factors into account, such as the company and property owned by H in Hong Kong, the fact that W and the Son gave up their citizenships in PRC, etc.
11. In particular, H had made a declaration on 3 August 2023, which supports the fact that he was at that time residing at the address of the Discovery Bay Property[2].
12. These 2 grounds have no merit.
Ground 4
13. H submitted that I erred in ruling that the Son has established a home base in Hong Kong.
14. Clearly, the Son has come to Hong Kong for a settled purpose, at least lasting for 4 years in order to complete his first degree in the University of Hong Kong.
15. This ground has no merit.
Ground 5
16. H argued that I failed to use H’s substantial connection with Shenzhen to contrast with his connection with Hong Kong.
17. In my view, the law only requires W to show that either of the parties has a substantial connection with Hong Kong, not both.
18. This ground has no merit.
Ground 6
19. H submitted that I erred in ruling that these proceedings should not be stayed on the ground of forum non conveniens.
20. As rightly pointed out by W’s Counsel, H’s Counsel had not in his written submissions raised any substantive argument that the court should stay the proceedings on the ground of forum non conveniens when the court has jurisdiction over the W’s petition for divorce.
21. Again, this ground has no merit.
Conclusion
22. To conclude, H has failed to demonstrate any reasonable prospect of success in his intended appeal and there is no other reason in the interests of justice why the appeal should be heard. His application for leave to appeal should be dismissed.
23. Regarding the question of costs, there is no reason why costs shall not follow event. W has not lodged her statement of costs. I thus order that costs of this application be paid by H to W, to be taxed if not agreed.
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( Simon Lo ) |
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District Judge |
Mr Enzo Chow instructed by S.K. Wong & Co. for the Petitioner
Mr Fergus Chan instructed by Cedric & Co. for the Respondent
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