BLANDINA QUINTINITA PARSONS v. CATRIONA JANE DERRY PARSONS AND OTHERS

HCMP 975/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 975OF 2017

(ON AN INTENDED APPEAL FROM FCMP NO 14 of 2014)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  Having heard submissions from the parties, we are not minded to grant leave. In a sense the facts of the case really speaks for themselves. One just has to go through the chronology attached to the written submissions of Mr Barnes with regard to the history of the deceased’s activities at the various places. One can readily see that there is absolutely no reasonable prospect, or I would say, no prospect at all of the intended appeal succeeding.

2.  We have some doubt whether, on the facts, it could be established that the deceased had acquired a domicile in Hong Kong. In that regard, actually, the judge below also has some question mark over that, and this is reflected in paragraph 19 of her judgment, although the judge went on to say the situation might have changed when there was a divorce with the second wife in 2004. 

3.  But if one matched that together with the chronology of Mr Barnes actually the deceased moved to live in Thailand in 2004. That was under an immigration retirement visa. 

4.  On these facts, though the judge came short of deciding that the deceased had not acquired domicile in Hong Kong, if we were required to decide that question, we would hold that the deceased, in the light of these facts, had not acquired domicile in Hong Kong.

5.  Moreover, even assuming for a moment for the purpose of argument that the deceased had somehow acquired a domicile in Hong Kong in 2002 when he applied for the status of unconditional stay, what happened afterwards certainly shows that he had changed his domicile from Hong Kong to that of Thailand.

6.  Because, as from 2004 onwards, he remained in Thailand.  The applicant married in Thailand in 2008, he acquired property in Thailand, he stayed there when he broke up with the applicant in 2012.  The fact that during this period of time he still maintained some connection with Hong Kong by reference to the sponsorship for the applicant’s dependent visa, by itself, in our judgment, cannot outweigh the other factors in considering the domicile of the deceased.

7.  Therefore we are of the view that even if he had, at some stage, acquired domicile in Hong Kong, the subsequent events point clearly to the fact that he had changed his domicile from Hong Kong to that of Thailand. 

8.  That being so, there is no prospect of success in arguing that the deceased has a domicile in Hong Kong at the time of his death.

9.  On the question of ordinary residence, again, the facts speak for themselves.  With regard to the three years prior to his death, as the judge noted, it is at paragraph 23 of the judgment, where she referred to the submissions of the respondent, during this period whilst the deceased had come to Hong Kong occasionally, that does not indicate that he had been ordinarily resident in Hong Kong. 

10.  Again, we do not regard the fact that he still came to Hong Kong to sponsor the applicant’s dependent visa as a matter of sufficient weight to point to the conclusion that he still maintained an ordinary residence in Hong Kong.  Whether he had an ordinary residence in Hong Kong during those few years is a question that has to be determined by reference to the overall picture and the events during this period of time. 

11.  Again, the facts really speak for themselves. We do not know what information was placed before the Director when the deceased sponsored the applicant.  But it is for this court to determine the question of ordinary residence for the purpose of this application, not the Director.   Whatever the Director might have decided based on whatever information before the Director cannot pre-empt our decision having regard to the evidence before us. 

12.  The intended appeal, as I said, had no prospect of success, therefore we refuse leave.