NG v. FAN AND ANOTHER

FCMC 9821 / 2023

[2025] HKFC 172

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 9821 OF 2023

____________________

____________________

-----------------------

JUDGMENT

( Jurisdiction - Substantial Connection )

-----------------------

1.  There is only one issue for determination in this judgment, namely whether the petitioner (“wife”) had a substantial connection with Hong Kong at the date of the petition for divorce filed on 25 August 2023.

2.  The 1^st respondent (“husband”) does not object that the wife had such a substantial connection.

3.  The 2^nd respondent is the adult son of the wife (born within her first marriage with another man), who is not required to be concerned with this issue of jurisdiction.

Procedural requirement & history

4.  It is trite that the parties cannot by their consent confer jurisdiction to the family court, which has an inquisitorial duty to investigate whether it can exercise jurisdiction over a divorce case (See: W v C [2013] 2 HKLRD 592, [2013] 2 HKLRD 602, CACV 36/2011 at paras 2, 3 and 23).

5.  Section 9(9) of the Matrimonial Causes Rules, Cap 179A provides that in a petition for divorce or nullity of marriage in which the court is alleged to have jurisdiction on the ground that either party to the marriage had a substantial connection with Hong Kong at the date of the petition, it shall be stated in the petition “the facts on which it is alleged that there was such a substantial connection with Hong Kong”.

6.  Notably, the wife has not stated such facts in her petition. Further, she gives two addresses in her petition, one being a flat in Tuen Mun under the home ownership scheme (“Tuen Mun property”),  and the other being a flat in Shenzhen which is registered in the sole name of the husband (“Shenzhen property”).

7.  Hence, although this case was originally transferred to this court for case management hearing relating to children matter, this court, on its own motion, raised the issue of jurisdiction. By my written directions made on 9 September 2024, the wife was requested to file and serve an affirmation on/before 31 December 2024 setting out all the facts she relies on her having a substantial connection with Hong Kong as at the date of the petition, with supporting documentary proof and her movement records from 1 January 2018 until 25 August 2023.

8.  The case management hearing took place on 22 January 2025. The wife had not filed the said affirmation. An unless order was thus made by me for her to do so by 4 pm of 22 April 2025, failing which she shall be debarred from doing so and her petition for divorce shall be dismissed with costs to the husband. The jurisdictional issue was adjourned to 5 June 2025 for submission.

9.  When the parties came before me again on 5 June 2025, the wife sought leave to file a supplemental affirmation on her “financial connection” with Hong Kong, which was not objected by the husband. Notably, she was a litigant in person when she filed her financial statement (Form E) on 17 October 2023, and she has not attached any financial documents, such as her bank statements, to the said Form E.  As a result, I granted leave for the wife to file a further affirmation on/before 19 June 2025 on the following (“5/6/2025 Order”):

(1)  to enclose all of her bank statements, whether in Hong Kong, China or overseas, according to the requirement of her Form E;

(2)  whether she and the husband had ever conducted their marriage in Hong Kong? If yes, state the relevant periods and the address of the matrimonial home of each period;

(3)  all cases commenced in the PRC between the wife and the husband, or involving either of them and/or properties solely or jointly owned by them;

(4)  any other evidence showing that the wife had a substantial connection with Hong Kong. 

10.  On 27 June 2025, I extended the time for the wife to file such supplemental affirmation by 2 July 2025.

11.  Despite the above, the wife has chosen not to comply with the 5/6/2025 Order.

12.  Therefore, on the question of jurisdiction, the wife has filed only one affirmation (dated 17 April 2025) pursuant to my directions, whereas the husband has filed none.

13.  Pausing here, I wish to point out that the wife, while still a litigant in person at that time, filed an affirmation on 25 August 2023 (ie the same date of the petition) attempting to explain why she has a substantial connection with Hong Kong. Although the written submission of Ms Tsang, counsel for the wife, has not referred to this affirmation, I will still take it into account in this judgment.

Background

14.  The wife was born in 1964 in Shanxi, China, and is now 61 years old. In 1985, she married her 1^st husband in China. Their son, the 2^nd respondent herein, was born in 1989. This 1^st marriage ended up in a divorce in 1993.

15.  Her 2^nd marriage took place in 1998. She married with a Hong Kong citizen (“2^nd husband”). In 2003, the wife and the 2^nd respondent became permanent residents of Hong Kong.

16.  The 2^nd husband was the registered tenant of a public housing unit in Wu King Estate in Tuen Mun. In 2008, the wife divorced with him. Upon the divorce, the 2^nd husband transferred the tenancy of Wu King Estate unit to the wife in 2010.

17.  In 2017, the wife gave up the tenancy of Wu King Estate unit in order to purchase the Tuen Mun property, which was (and still is) registered in her sole name since its purchase.  However, she claims in these ancillary relief proceedings that she has been holding the Tuen Mun property on trust for the 2^nd respondent, as the downpayment and mortgage repayments were/are paid by him. In the result, the 2^nd respondent was joined into these ancillary relief proceedings.

18.  The husband of this case was born in 1980, and is now 45 years old. He is 16 years younger than the wife.  He is not a citizen of Hong Kong. He originates from Shandong, China, and is, at all material times, a citizen of China.

19.  The parties met in 2008 in a night club where the husband was working at that time. Shortly after that, the husband stopped working and became financially supported by the wife.

20.  In 2013, they got married in Hong Kong.

21.  It is said that their daughter (“Surrogate Child”) was born in Shenzhen in May 2018. She is now 7 years old. She was born as a result of a surrogacy agreement arranged by the husband with the knowledge of the wife, by an embryo transfer procedure in which that the embryo(s) formed by the egg(s) of an unknown woman and the sperm(s) of the husband was/were transferred to the uterus of another woman, ie the surrogate mother. Hence, the Surrogate Child is not related to the wife by blood or genes. 

22.  Marital discord emerged after the birth of the Surrogate Child over the allotment and sharing of their wealth. In 2021, they had an oral argument on their property/properties, resulting in a physical dispute. They moved to live in separate bedrooms within the Shenzhen property since then.

23.  On 25 August 2023, the wife filed her petition for divorce, alleging that she has separated from the husband since 22 December 2019. She seeks to have the custody of the Surrogate Child, and leave from the court for the Surrogate Child to be remained out of the jurisdiction of Hong Kong. Financially, she asks that the Tuen Mun property and the Shenzhen property shall be transferred to her.

24.  The husband has filed an answer to the petition, but in fact, he does not object to the divorce. He only wishes to share the family assets, which he says, are wholly in the control of the wife.

25.  Apart from this divorce case, the parties and/or the 2^nd respondent were engaged in at least 2 pieces of civil litigation in China, which concerned the ownership of certain properties, including the Shenzhen property.[1]

Applicable law

26.  Section 3 of the Matrimonial Causes Ordinance, Cap 179 (“MCO”) provides that the divorce jurisdiction is based on the following grounds:

“(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 three 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)

27.  The wife in this case relies on section 3(c).

28.  The phrase of “substantial connection” is not defined in any family legislations, but over the years, abundant cases have been decided by our Court of Appeal on its meaning and applicable principles, such as:

(1)  S v S [2006] 3 HKLRD 751;

(2)  ZC v CN (Divorce: jurisdiction) [2014] 5 HKLRD 43;

(3)  JEK v LCYP [2015] 4 HKLRD 798;

(4)  ZJW v SY, CACV 10/2017, date of judgment 1 December 2017;

(5)  Re WSJ (Minor)(Parentage: jurisdiction) [2019] 1 HKLRD 977;

(6)  JQ v CLH [2022] 2 HKLRD 632.

29.  Based on these well-known authorities, I venture to summarize the legal principles as follows:

(1)  Historically, “substantial connection”, being a new and additional ground of jurisdiction under section 3 of the MCO, must be given a meaning “wider than domicile or three years ordinary residence” : S v S (supra) at para 11; 

(2)  Whether a person has a substantial connection with Hong Kong is a question of fact : ZC v CN (supra) at para 9.4;

(3)  The enquiry is two-stage: firstly, whether a person has a “connection” with Hong Kong; and secondly, whether that connection is a “substantial” one : ZC v CN (supra) at para 9.4;

(4)  In so far as “connection” is concerned, there must be “physical presence in Hong Kong”. As to “substantial”, the presence “cannot be of a transitory nature”; “fly in” and “fly out” divorces are not encouraged : ZC v CN (supra) at para 9.4;

(5)  In the context of matrimonial proceedings, a material (but may not be determinative) factor will be: whether both parties to the marriage have lived in Hong Kong and, if so, how long they have lived here as man and wife : S v S (supra) at para 18; 

(6)  That a person has resident status to live legally in Hong Kong is only one of the factors to be taken into account;

(7)  The court has to look at other factors, such as the party’s past pattern of life, frequency of visits to Hong Kong, the length and the purpose of the stay, whether the party is engaged in business or work in Hong Kong, whether the rest of the family is here, whether a home has been established here and whether the children are at school here : ZC v CN (supra) at para 9.8;

(8)  A party may have a substantial connection with Hong Kong, as well as elsewhere, at the same time : S v S (supra) at para 13. However, 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 : ZC v CN at para 9.8.

The wife’s case

30.  According to the written submission of Ms Tsang, counsel for the wife, the connection of the wife with Hong Kong as at the date of the petition broadly includes the following aspects:

(1)  She has been a citizen of Hong Kong since 2003, as a result of her marriage with her 2^nd husband;

(2)  She became the tenant of Wu King Estate since 2006, and the primary registered tenant in 2010 upon her divorce with the 2^nd husband;

(3)  In 2017, she became the registered legal owner of the Tuen Mun property with the service of a mortgage obtained by her;

(4)  Her son, the 2^nd respondent, is also a citizen of Hong Kong since 2003. He now lives with his wife and his children in the Tuen Mun property;

(5)  She and the husband were married in Hong Kong in 2013. They stayed in the Tuen Mun property whenever they came to Hong Kong;

(6)  She comes to Hong Kong to visit the 2^nd respondent more often since she separated from the husband in 2019.

31.  The above allegations can be conveniently discussed in the following topics.

Permanent citizen of Hong Kong

32.  As a starting point, it is well-settled that a party who has resident status allowing him/her to live in Hong Kong legally “is only a factor to be taken into account” : ZC v CN (supra) at para 9.8.  

33.  Hence, the fact that the wife has obtained permanent citizenship of Hong Kong since 2003 is not a conclusive factor to show that she must have a substantial connection with Hong Kong. The court has to look at other factors and make an objective assessment.

Frequency of visits to Hong Kong

34.  On my directions, the wife provides her movement records from 20 January 2016 up to the date of the petition[2]. Such extensive movement records are requested because the court acknowledge the impact on travel restrictions imposed in Hong Kong as a result of the Covid-19 pandemic spreading mainly from 2020 to early 2023. Hence, in all fairness to the wife, I shall disregard her movement records from 2020 to February 2023.

35.  The wife summarizes the frequency and length of her stays in Hong Kong in her exhibit “WL-6”.  Briefly, the pattern are:

2016	7 visits totalling 19 days, of which 2 were same day visits
2017	14 visits totalling 37 days, of which 6 were same day visits
2018	8 visits totalling 20 days, of which 1 was same day visit
2019	6 visits totalling 38 days, of which 1 was same day visit
3/2023 - 25/8/2023	9 visits totalling 22 days, of which 4 were same day visits

36.  The above pattern and movement records show that except for the years of 2017 (the year when the Tuen Mun property was purchased) and of 2023 (the year when she filed the petition for divorce), she visited Hong Kong for 6 to 8 times a year only. Over these years, she has made infrequent visits to and spent a sparse number of days in Hong Kong, some as short as merely a few hours. Her visits to Hong Kong are thus “transitory” in nature.

Past pattern of life

37.  The wife has all along had a very strong tie with China. She was born and educated there.

38.  Although she became a permanent resident of Hong Kong in 2003, she continued to assist her maiden family in running the family business/company in China until her retirement in 2009[3]. There is no evidence to suggest that she has ever worked in Hong Kong. Her Form E does not show that she has maintained any mandatory provident fund account in Hong Kong.  In fact, the social investigation report (dated 7 May 2024) records that after the wife married with the 2^nd husband, she had to work in China year in year out (長年在內地工作), so much so that she had to leave the caring of the 2^nd respondent to the 2^nd husband[4].

39.  According to the court records, when the 2^nd husband divorced with her in 2007, the wife provided an address in China in her Form 4 as her service address.

40.  Hence, it can be concluded that even though she obtained her permanent residency of Hong Kong in 2003, she continued to spend an abundant amount of time in China.

41.  Since her marriage with the husband of this case in 2013, they conducted their marriage life predominantly in Shenzhen at the Shenzhen property. The Surrogate Child was born and has been raised in China since her birth.  The husband and the Surrogate Child remain a Chinese citizen up to the date of the petition, and neither of them has any connection with Hong Kong.  It can thus be fairly said that since this marriage, the wife and her immediate family (ie the husband and the Surrogate Child) had their home base in China, but not Hong Kong.

42.  I would place little weight to the fact that the 2^nd respondent is now living in Hong Kong.  The 2^nd respondent is already a grown-up with his own family.  The movement records of the wife in 2023 (after travel restrictions between Hong Kong and China was loosened or uplifted) do not support that she came and visited the 2^nd respondent regularly. Rather, she continues to live under the same roof with the husband and the Surrogate Child in the Shenzhen property up to the date of the petition, and even up to the date of the hearing.

43.  The wife once says in her affirmation filed on 25 August 2023 that since she receives follow up treatments in Hong Kong, she thus had a substantial connection here. Yet, she has not provided any documentary proof to substantiate her allegation. Given her sparse visits to Hong Kong, which are already set out at [35], I do not accept that her receiving of medical treatments in Hong Kong can show that she had a connection substantial enough with Hong Kong.

44.  It is thus very clear to me that as at the date of the petition, the wife has not spent any substantial part of her life in Hong Kong. Her past pattern of life shows that despite obtaining her permanent residency here, she has chosen to spend the substantial part of her life in China.

Financial connection

45.  In JQ v CLH [2021] HKFC 105, FCMC 7498/2018, the parties conducted their marriage mainly in Dongguan, China and did not maintain any regular residency in Hong Kong. The wife argued that the husband had a substantial connection here because his main business and finances had all along been based in Hong Kong.  HH Judge Ivan Wong found for the wife and ruled that the husband’s financial presence in Hong Kong was sufficient to satisfy the threshold of substantial connection. The husband appealed but his appeal was dismissed by the Court of Appeal.

46.  The wife’s intention to rely on her financial connection with or financial presence in Hong Kong is already set out at para [9] of this judgment. Despite the court has given her a further chance to make good of her case on financial connection, the wife has chosen not to file any further evidence.

47.  The court can only resort to the information disclosed in her Form E and her affirmation dated 25 April 2024 (in support of her application to join the 2^nd respondent into these proceedings), as well as the husband’s Form E (dated 3 January 2024).

48.  The wife is the registered owner of the Tuen Mun property. However, she claims that it is beneficially owned by the 2^nd respondent. Other than that, she does not own any property or substantial assets in Hong Kong, save and except 3 bank accounts. Yet, in her Form E, apart from giving the names of the banks, she has not provided the bank accounts numbers and their balances; nor has she attached the bank statements as required by the Form E.  She continues to refuse providing such bank statements despite the 5/6/2025 Order.  For the purpose of this judgment, I can only draw the inference that these 3 bank accounts are not active bank accounts, nor do they contain any substantial balances.

49.  On the other hand, the husband claims in his Form E that the wife owns 6 properties (residential flats and commercial shops), and at least 7 savings accounts and 11 credit cards of various banks, in China[5]. In support, the husband is able to provide some documents, such as property ownership certificates (房產証) and photos showing some of the bank cards or credit cards of the wife. It is noted that the wife has not disclosed any of these properties or bank/credit card accounts in her Form E.

50.  The picture is thus clear. There is simply no or insufficient evidence to support that the wife has a substantial financial connection with Hong Kong. Further, it is more likely than not that her substantial financial connection was (and still is) with China as at the date of the petition.

A broad objective assessment 

51.  Hartmann J (as he then was) explained in S v S (supra) at para 19,

“In summary, whether – for the purposes of the Ordinance – a connection is substantial or not can only be determined on the basis of a broad objective assessment, taking all relevant factors into account.”

52.  On a broad objective assessment and taking into account all of the factors set out above, I conclude that the wife has not proved that she had a substantial connection with Hong Kong as at the date of the petition for the purpose of invoking the jurisdiction of the family court.

53.  On costs, I take into account the following matters:

(1)  Both parties say that the family court has jurisdiction over this case, but this is now rejected by me;

(2)  the issue of jurisdiction should have been raised and brought to the attention of the court at a much earlier stage, under which case the court could have made a determination earlier so that costs on the custody and ancillary relief could have been saved. Notably, both parties are represented for custody or for an application for a parental order, and ancillary relief matters;[6]

(3)  in so far as children matter is concerned, the usual order on costs is a “no costs” order;

(4)  the ancillary relief matters are still at the early stage of first appointment hearings. No final determination on ancillary relief has been made.

54.  Taking into account of the above and in the overall circumstances, I will order that there shall be no order as to costs of the whole case, including the main suit, custody and ancillary relief, including all costs reserved orders.  This shall be a nisi order which shall be made absolute within 14 days from the date of the judgment.

55.  I therefore order that:

(1)  The wife’s petition for divorce filed on 25 August 2023 shall be dismissed for want of jurisdiction;

(2)  The marriage certificate shall be returned to her through her solicitors;

(3)  All interim orders made previously by the family court, whether in relation to custody or ancillary relief, shall be discharged with immediate effect;

(4)  There shall be no order as to costs of and occasioned by the issue of jurisdiction, including costs reserved;

(5)  There shall be no order as to costs of the whole case, including the main suit, custody and ancillary relief, including all costs reserved orders. This shall be a nisi order which shall be made absolute within 14 days from the date of the judgment.

(6)  The husband’s own costs (relating to the application for a parental order and ancillary relief) shall be taxed in accordance with Legal Aid Regulations.

56.  This order shall be drawn up forthwith in Chinese for approval by the wife’s legal team, who shall also serve the order on all the parties in the ancillary relief proceedings.

57.  A copy of this judgment shall also be provided to the husband’s solicitors (acting for the application for a parental order and ancillary relief) and the 2^nd respondent by the court.

58.  The husband is not legally represented for the purpose of the jurisdiction issue. He may approach the registry to fix a time for interpretation service of this judgment into Putonghua for him.

[1] 中華人民共和國廣東省深圳市龍崗區人民法院民事判決書(2023)粵0307民初27438號， 日期9/11/2023。

[2] Exhibit “WL-5”.

[3] Social investigation report dated 7/5/2024 at para 3.

[4] Social investigation report dated 7/5/2024 at para 5.

[5] Husband’s Form E at part 2.2, part 6.1, part 6.2 and attachments.

[6] The husband is on legal aid for application for a parental order and ancillary relief, but not for the main suit and the issue of jurisdiction.