朱 v. 劉

FCMC 8529/2021

[2022] HKFC 223

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO.8529 OF 2021

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

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

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

D E C I S I O N

(Jurisdiction / forum non conveniens)

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

THE APPLICATIONS

1.  On 15 December 2021 the Respondent Husband filed a Summons in applying to dismiss the Petitioner Wife’s Petition filed on 24 August 2021 (“the Petition”) for want of jurisdiction, or, alternatively to stay these proceedings in favour of the Shenzhen Yantian District People’s Court, PRC (“the Yantian Court”) on the ground of forum non conveniens.  The said Summons was later amended to the effect of staying these proceedings in favour of another court, namely the Shenzhen Luohu District People’s Court, PRC (“the Luohu Court”) instead.  It is this Amended Summons filed on 20 June 2022 which is now before this Court for determination. (“Jurisdiction Summons”)

2.  On the other hand, the Petitioner Wife filed a Summons on 28 April 2022 seeking maintenance pending suit for herself, as well as legal costs provision in these proceedings. (“MPS Summons”) At the directions hearing on 20 May 2022, it was directed that the substantive hearing of both of these two Summonses be fixed on 5 & 6 September 2022, with the Court firstly determining the Jurisdiction Summons, then followed by the MPS Summons.

3.  In this Decision I shall refer to the Petitioner as the Wife, the Respondent as the Husband, and the children of the family collectively as the Children.

4.  At the substantive hearing, it was common ground between the parties that in the event the Court rules against the Wife on the Jurisdiction Summons, be it under s.3 of the Matrimonial Causes Ordinance, Cap. 179 ("MCO”) or the forum non conveniens ground, the MPS Summons would naturally fall apart, by the simple reason that the Court will have no jurisdiction to deal with the latter; on the other hand if the Court rules in favour of the Wife on the Jurisdiction Summons, the Court will determine the MPS Summons.

5.  I had already indicated at the beginning of the hearing that I would reserve my judgment on the Jurisdiction Summons.  It was then agreed by the parties that they would nevertheless want the MPS Summons to be heard in any event on the same occasion so as to save time and costs.  I also agreed that this would be an efficient approach.  The Husband has made clear that any and all submissions made in his opposition to the MPS Summons are not to be viewed as his submission to jurisdiction. I think this is clear and fully accepted by the Wife. 

6.  As such, the MPS Summons was heard immediately following the Jurisdiction Summons and at the end of that hearing I had also reserved my judgment.  Accordingly, this Decision deals with both Summonses, save and except for reasons I am about to elaborate below, there is in effect no need for me to determine the MPS Summons as it turns out.

I. JURISDICTION SUMMONS

Relevant Factual Background

7.  Both the Wife and the Husband were born in Mainland China (PRC) and at the time of this hearing, the Husband was 49 and the Wife was 40 years old respectively.  They met and started a relationship in Russia in the early 2000’s when both parties studied there and the Husband also worked in Russia for some time post-graduation.  In around 2005 the Husband relocated to Shenzhen for work and soon after, the Wife followed and joined him in Shenzhen in 2006.  The parties were then married on 15 October 2007, in Futian District of Shenzhen.

8.  It is the Wife’s case that in fact soon after they got married, they already planned to migrate to Hong Kong and that steps were taken to prepare for an application under the Quality Migrant Admission Scheme (QMAS) of Hong Kong.  As part of their planning, the Husband incorporated a Hong Kong company named MHKCL in November 2007, just one month after marriage, and that the Husband submitted his application under the QMAS in 2008.  There seems to be little dispute on this from the Husband.

9.  In August 2009, their first child, a girl, was born in Hunan PRC, which is the home province of the Wife and thereafter the parties and the daughter resided in Shenzhen.  In 2010 the QMAS application of the Husband was approved but they remained residing in Shenzhen.  Their second child, a boy, was born in Hong Kong in July 2011.  After giving birth to the son in Hong Kong, the parties remained residing in Shenzhen with the daughter only while the son was arranged to be cared for by the maternal grandparents in Hunan.

10.  In January 2013, the Husband relocated to Hong Kong with the daughter.  Then in 2014, the son was arranged to join the Husband and the daughter in Hong Kong.  As to the Wife, while the parties have some disputes here as to whether the Wife’s travelling in and out of Hong Kong between 2013 and 2019 would amount to having a family life in Hong Kong, it is at least not disputed that during this said period the Wife was in employment in Shenzhen and resided in Shenzhen predominantly.

11.  The parties have helpfully submitted a table summarising the travel record of the Wife obtained from the Hong Kong Immigration Department between 2013 and 2019 when the Wife would travel in and out of Hong Kong on the strength of her dependency visa.  In gist it shows that :-[1]

Year	Days in HK	Overnights in HK
2013	39	20
2014	88	37
2015	101	11
2016	94	2
2017	77	14
2018	92	2
2019	91	6

                                                       

12.  The Husband and the daughter obtained permanent residencies in Hong Kong in 2017.  At all material times the Husband was living under rented abodes by entering into various tenancy agreements within the same estate, namely Castello, in Shatin, Hong Kong.  The Wife says she would frequently visit the Husband and the Children and sometimes would stay overnight at the Hong Kong residence, only that the frequency of her overnight stays would be kept to a minimal in order to avoid confrontations with the Husband.

13.  Pausing here, it was noted at the hearing and brought to the attention of the Wife that while in her Petition she pleaded such frequency of visits to be ‘around once a week’, and in her written submission and chronology to be ‘almost every day’, her travel records seem to suggest otherwise.  To this, Mr. Tam acting for the Wife fairly clarified and accepted what is stated in the travel records to be the more accurate reflection.

14.  I say ‘the more’ accurate as opposed to ‘the’ accurate reflection since the travel records can only be telling as to the frequency of her travelling in and out of Hong Kong – but it cannot conclusively reflect whether the purpose of all those visits were to visit the family.  This is especially so when it is the Husband’s case that the Wife as part of her job would frequently purchase goods in Hong Kong and sell them in the PRC and therefore she would need to frequent between Hong Kong and Shenzhen in any event.  The Husband also denied the Wife had ever stayed overnight in Hong Kong at his residence.  In fact, the Husband went as far as to deny there was ever any ‘family life’ in Hong Kong between 2013 and 2019. I shall return to this later.

15.  On the other hand, it is accepted by both parties for the purpose of the Jurisdiction Summons that the Husband was domiciled in Hong Kong between 2013 and 2019, or to be precise, right until his departure with the Children to Canada on 8 January 2020.

Departure to Canada

16.  It is the Husband’s case that in around the second half of 2019 he had decided to take the Children to Canada, upon the prevailing social unrest in Hong Kong and in planning so, he had asked his sister who lived in Canada since 2005 in relation to school placements and was told that they would generally be available in Canada.  By that time, the mother of the Husband had already become a permanent resident of Canada in around April 2019 and also planned to leave Hong Kong for Canada in 2020.

17.  The Husband accepts that he initially considered sending the Children to Shenzhen for schooling at that time, but upon making enquiries he was told that no suitable placements were available for the Children.  There was an international school proposed by the Wife but the school fees would be at around RMB250,000 per child annually which the Husband found to be too expensive.  The decision to go to Canada was discussed and consented by the Wife.

18.  To this the Wife accepts she agreed to the Husband’s departure to Canada with the Children but she says her agreement was based on the understanding that the arrangement was meant to be a temporary one and solely for the purpose of primary education.  She says it is not unusual under the Mainland culture for children to return to Hong Kong upon completion of overseas primary school education[2].

19.  The Husband’s case is that the agreement to leave Hong Kong for Canada was based on the understanding that, in the event the Children have settled well in Canada, it was open to consider remaining in Canada indefinitely.  In other words, it is the Husband’s case that at the time of departure, he was uncertain and keeping an open mind but subsequently having seen the Children adapted well and showing fondness of Canada, he had decided to stay indefinitely in Canada with the Children and that he says he was, in any event, domiciled in Canada as at the date of the Petition[3].

20.  The period between departure and the date of Petition is about 1 year and 7 months and there is no dispute that the Husband, apart from two visits to Hong Kong between June and August 2020 amounting to 14 days and 19 days respectively, had been residing in Canada throughout the entirety of this period.  Thus, in other words, it is the Husband’s case that his domicile has changed at some point in between this period, but without being able to pin-point a specific moment of time. 

21.  At the hearing I have been invited to focus on the matters as at the date of the Petition.  While this is no doubt the correct approach it is not to say that events prior to, or for that matter, post-petition are irrelevant.  For the sake of brevity I will not list out all the relevant facts surrounding the date of the Petition and suffice for me to remind myself that in determining jurisdiction matters under s.3 MCO, all circumstances must be considered, especially in dealing the issue of substantial connection it is, as described by case law to be stated below, highly fact-sensitive.

The Divorce Proceedings in the PRC and HK

1^st PRC Proceedings

22.  In fact it was the Husband who firstly initiated divorce proceedings in the PRC on 31 July 2020, i.e. some 6 months after the said departure, by commencing the same under the Yantian Court. (“1^st PRC Proceedings”)  The Wife defended acting in person and in gist, she first disputed her ‘habitual residence’ to be the Yantian District when she contended it should be the Luohu District instead.  She succeeded and accordingly the case was transferred to the Luohu Court; then, the Wife opposed to the divorce in the Luohu Court on the ground that the marriage had not broken down irretrievably and succeeded on the same.  The 1^st PRC Proceedings were thereby dismissed on 5 February 2021[4].

23.  What transpired from the 1^st PRC Proceedings is that in the Judgment of the Luohu Court it is stated inter alia that the Wife told the Luohu Court the agreement for the Husband and the Children to go to Canada was reached by the parties’ consent and that the Wife intended to join them and live together in Canada at a later stage[5].

The Petition

24.  By the Petition, which was taken out about 6 months after the 1^st PRC Proceedings were dismissed, the Wife pleaded therein:

“(3) 答辯人是香港永久性居民，並以香港為居籍。

在呈請當日，呈請人和答辯人均與香港有密切聯繫。 呈請人和答辯人與香港有密切聯繫的詳情如下:

(i) 呈請人與答辯人自2013年起至2019年底，長期租住在香港新界沙田小瀝源路69號帝堡城的不同物業內。 其中2017年下半年起至2019年底， 雙方租住在婚姻居所內;

(ii) 呈請人與答辯人所生的女兒自2013年至2019年底一直在香港讀書。兒子自2014年至2019年底一直在香港讀書;

(iii) 呈請人作為答辯人的受養人前往香港，為照顧女兒及兒子的生活 。呈請人自2013年起會經常往返香港及內地，頻率大概每週一次，並與答辯人、女兒及兒子居住在帝堡城物業內;

(iv) 呈請人、女兒及兒子的生活重心在香港，答辯人在香港有公司業務，打算長期留在香港;及

(v) 答辯人的職業為商人，其主要業務位於香港。答辯人於香港設立了一間名為MHKCL的公司，並擁有多個在東亞銀行有限公司、中國銀行 (香港)有限公司開立的儲蓄、證券及保險戶口。”

25.  One would immediately note that the Wife seeks to rely on as many as three possible grounds (when only one is necessary) to establish jurisdiction under s.3 MCO, namely, (i) the Husband’s domicile in Hong Kong; (ii) the Husband’s substantial connection with Hong Kong; or (iii) the Wife’s substantial connection with Hong Kong.  Queries had been raised at the directions hearing as to the Wife’s position on this and in short, by the time the matter comes before me at the hearing, I have also sought to clarify with the Wife and Mr. Tam confirmed he was to rely on all three grounds and despite the word ‘and’ was pleaded under substantial connection, he meant the Wife ‘or’ the Husband.  There seems to be no misunderstanding from the Husband about this and so it was proceeded on such basis.  It appears to me that logically the Wife would then be relying on domicile as her primary case and only in the event she fails to establish the same, she would then seek to rely on either party’s substantial connection.  Mr. Tam agrees to this and did not further inform me as to which party’s substantial connection would then become his first alternative case, then followed by his 2^nd alternative case.  In any event I think it matters not in this respect.

26.  Rather, in my view, what matters is that the Wife clearly was not able to choose between which of the grounds to rely upon and has therefore chosen to adopt the ‘catch-all’ approach.  This has been commented in JQ v CLY (Jurisdiction; substantial connection) [2021] HKFLR 299 (at 302D-F) where it is stated :

“3. The oddity of the pleading caught my attention. In normal circumstances, it would be sufficient for a petition to rely upon the “domicile” ground in order to establish the court’s jurisdiction over the proceedings. Pleading both the “domicile” ground and the “substantial connection” ground showed, by implication, the wife was not sure of the “domicile” ground; and by not pleading the “3-year habitual resident” ground, it showed the respondent husband was not residing in Hong Kong.”

27.  With respect, I share the same observation in the present matter especially when the Court has once again raised this to the Wife at the beginning of this hearing.  On the other hand, I must say there are no rules to debar a party from relying on more than one of the grounds under s.3(a) to (c) MCO and accordingly the Wife was fully entitled to plead, in the manner she did, as a matter of law, her grounds.  Only that practically speaking, in doing so it would burden the parties and the Court on more live issues to be resolved than what is necessary.

28.  The Husband for his part disputed jurisdiction as evidenced in his Form 4 filed on 24 November 2021 whereby he stated clearly his intention to challenge jurisdiction and forum in these proceedings.

2^nd PRC Proceedings

29.  The Husband then took out a fresh divorce application in the Yantian Court on 29 November 2021 (“2^nd PRC Proceedings”) on the basis that since the Wife herself has now petitioned for divorce in Hong Kong it must mean that she would no longer contend that the marriage has not broken down irretrievably and thus, and on the strength of some PRC legal advice provided to the Husband, it is likely that the PRC Court will accept the divorce this time.  The Wife was once again acting in person and opposed on the same ground initially, namely that it ought to be heard in Luohu Court instead and she once again succeeded as evidenced by the judgment of the Yantian Court dated 28 March 2022 ordering the matter be once again transferred to the Luohu Court for determination[6].

30.  Then, the Wife sought legal representation in the PRC and by her answer (民事答辯狀) dated 6 July 2022[7], her lawyers has raised, on her behalf, jurisdictional challenge on the basis that she had already commenced divorce proceedings in Hong Kong and the same matter should not be re-litigated in the Luohu Court.  A hearing took place on 14 July 2022 and it was resolved by the Luohu Court that (i) the matter was adjourned for 2 months for mediation, noting the Hong Kong Courts will conduct a hearing on jurisdictional challenges in September 2022; (ii) in the event the Hong Kong Courts have no jurisdiction over the matter, the Luohu Court has jurisdiction and will proceed to determine the divorce; and (iii) in the event the Hong Kong Courts have jurisdiction over the matter, the position of the Luohu Court will not be so certain then[8].

31.  After this hearing, the Luohu Court handed down a judgment on 20 September 2022 in dismissing the 2^nd PRC Proceedings. This caused the Wife to have filed a Summons on 7 October 2022 for the inclusion of this piece of post-hearing evidence for this Court’s consideration. Her Summons was opposed by the Husband and I have directed the disposal of this Summons to be dealt with on paper, together in this Judgment. I shall return to this matter later.

JURISDICTION

The law

32.  Counsel for the respective parties have cited a number of authorities to demonstrate the relevant legal principles concerning domicile, substantial connection, as well as forum non conveniens.  It is clear to me that the general legal principles are not in dispute and are applicable to this matter and I shall accordingly apply them in my analysis below.

33.  S. 3 MCO provides that :-

“3. Jurisdiction in divorce

The court shall have jurisdiction in proceedings for divorce under this Ordinance if –

(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 3 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.”  

34.  There is no dispute that the burden rests on the Wife, as the Petitioner in these proceedings, to satisfy the Court that this Court does have jurisdiction under s. 3 MCO.  In addition, it is trite that the parties cannot confer jurisdiction on the Court if the Court does not have one and thus this Court also retains an independent duty to investigate whether it has jurisdiction to the Petition: W v C (Domicile and Forum) [2013] HKFLR 213.

35.  It is also trite that whether it is under domicile or substantial connection, the Court should focus on matters “as at the date of the petition” notwithstanding a holistic approach is otherwise called for.

A.   Domicile

The law on Domicile

36.  The oft-cited passages in the Court of Appeal decision in ZC v CN (Divorce: jurisdiction) [2014] 5 HKLRD 43 (at 50 to 52) are helpful guidance and worth repeating here concerning both domicile and substantial connection:

“I) Domicile

7.1 Rule 4 of Dicey, Morris & Collins: the Conflict of Laws (15^th ed., 2012) Chapter 6, para. 6R/001 states:

Rule 4 – (1) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. (2) A person may sometimes be domiciled in a country although he does not have his permanent home in it.

7.2 To elaborate on this rule the authors state that:

6/004 Permanent home. The notion which lies at the root of the concept of domicile is that of permanent home. … A person may be said to have his home in a country if he resides in it without any intention of at present removing from it permanently or for an indefinite period. But a person does not cease to have his home in a country merely because he is temporarily resident elsewhere; and a person who has formed the intention of leaving a country does not cease to have his home in it until he acts according to that intention.

6/005 While the notion of permanent home can be explained largely in the light of commonsense principles, the same is certainly not true of domicile. Domicile is “an idea of law” which diverges from the notion of permanent home in two principal respects. In the first place, the elements which are required for the acquisition of a domicile go beyond those required for the acquisition of a permanent home, In order to acquire a domicile of choice in a country a person must intend to reside in it permanently or indefinitely. … Secondly, domicile differs from permanent home in that the law in some cases says that a person is domiciled in a country whether or not he has permanent home in it …

7.3 The words “by English law” in Rule 4 mean in the context of this case “by Hong Kong law”. This rule together with the concept of acquiring a domicile by choice are reflected in our Domicile Ordinance (cap. 596) which is an ordinance to consolidate and reform the law for determining the domicile of individuals. Section 3 provides that:

3. General rules

(1) Every individual has a domicile.

(2) No individual has, at the same time and for the same purpose, more than one domicile.

(3) Where the domicile of an individual is in issue before any court in Hong Kong, that court shall determine the issue in accordance with the law of Hong Kong.

7.4 Section 5 further provides that:

5. Domicile of adults

(1) On becoming an adult, an individual retains (subject to subsection (2)) the domicile that he had immediately before he becomes an adult.

(2) Subject to sections 6, 7 and 8, an adult acquires a new domicile in a country or territory if:

(a) he is present there; and

(b) he intends to make a home there for an indefinite period.

7.5 An adult may be lawfully present in Hong Kong in order to acquire a domicile in Hong Kong (s.6).

7.6 In W v C (Divorce: Jurisdiction) [2013] 2 HKLRD 602 this Court adopted the list of factors identified by Judge Bebe Chu in Y v W (Domicile) [2012] HKC 455 which may be taken into account in determining an individual’s intention whether to make a permanent home in a particular place:

1) Length of residence;

2) condition of residence: Purchased property? Leased property? Furnished lodgings? Hotels?;

3) Marriage with a local partner;

4) Whereabouts of the family;

5) Business interest;

6) Whereabouts of personal belongings;

7) Whereabouts of the person’s property and investments;

8) The fact of naturalisation;

9) Decision made as to the nationality of the children;

10) Education of the children;

11) Memberships of clubs or religious associations;

12) Place of work;

13) Relation between a man and his family.”

37.  ZC v CN has been adopted and followed in the more recent case in Z, SN (aka K, SN) v K, VSF [2019] HKFLR 373 (at 378H to 379F) where the Court of Appeal identified for a petitioner to establish domicile she has to satisfy the court that (i) the respondent was present in Hong Kong and (ii) he intended to make Hong Kong his home for an indefinite period.  The list of factors set out above in Y v W is reference as to the question of “settled intent”.

38.  Application of the list of Y v W factors must be exercised with flexibility commensurate with circumstances peculiar to each case, and that the relevance and weight to be given to these factors, which are not meant to be exhaustive or determinative, may vary: LCYP v JEK [2015] 4 HKLRD 798 (at 832), per Kwan JA.

Discussion on Domicile

39.  With the burden of proof on the Wife, Mr. Yim acting for the Husband firstly invited the Court to take into account of the indisputable fact that as at the date of the Petition, the Husband was not in Hong Kong and in strictly applying s.5(2) of the Domicile Ordinance, the first requirement under s.5(2)(a) is thereby not satisfied.  In submitting so, Mr. Yim has fairly conceded that the mere physical absence of the Husband as at the date of the Petition itself will not be sufficient to conclude the matter in the Husband’s favour and the Court will in any event look at other factors and he only wishes to highlight this point as one of the more important considerations.

40.  In my view, upon a plain reading of s.5(2) of the Domicile Ordinance, it talks about an adult acquiring a new domicile in a country.  In this present matter it has been agreed that the Husband did domicile in Hong Kong prior to his departure to Canada and as such, it has always been the Wife’s case that the Husband has yet to have severed his domicile in Hong Kong notwithstanding the departure, and therefore criticisms were made as to the fact that the Husband was not even able to point to a specific date when his domicile has changed.  To me, while the direct question of exactly when the domicile of the Husband did change from Hong Kong to Canada need not be determined by this Court, on the other hand, by the simple proposition that a person cannot have more than one domicile at one time, and as the Husband is now positively asserting he was domiciled in Canada, not Hong Kong, as at the date of the Petition, then it effectively means that the real task before this Court is to investigate, conversely, if the Husband has acquired this alleged new domicile in Canada on the date of the Petition by applying the same tests namely, whether he was present there and whether he intends to make a home there for an indefinite period.  I have in any event not lost sight of the requisite burden of proof when applying this reverse logic to the present matter.

41.  Bearing in mind the factors in Y v W but without mechanically listing them out here, and focusing on the state of affairs as at the date of the Petition on 24 August 2021, and without repeating every detail argument put forward by the parties, my analysis is as follows:

(a)  From the Husband’s Saskatchewan Immigrant Nominee Program (SNIP) Nomination form dated 11 August 2021, it states that on 15 January 2018 an application was received and that on 11 August 2021 a nomination was issued, with an expiry date on 11 February 2022.  It has been stated in this said document that nomination does not guarantee a person will receive permanent resident status and that certain steps have to be further taken by an applicant[9];

(b)  The Husband described himself therein as an entrepreneur and did not include the Children under this nomination.  He explained that it was due to the Children at that time were under study permits.  The Wife challenged that by the time the expiration of the said nomination was extended to October 2022, the Children could and should have been added but they were not and this showed the lack of intention for the Children, and therefore the Husband, to settle permanently in Canada.  I cannot agree with this and I find that the formal application under the SNIP Nomination was and is in process at all times.  I accept the Husband’s explanation that as at the time of the renewal Nomination, the Children’s visa documents were not ready and in any event it is clear to me that if and when the Children become eligible to apply for permanent residence, the Husband would no doubt follow up on the same, as he stated he would;

(c)  The Husband had since around October 2019 been arranging and entering into tenancy agreements in Canada for the residence of the Children and himself.  The Wife criticized that these tenancies may suggest a lack of commitment to settle down indefinitely when compared to purchasing a landed property.  To this, I have not lost sight of the fact that during all the times the Husband and the Children resided in Hong Kong, they were also living under various tenancies and did not purchase any properties.  Such was the pattern during marriage and I therefore do not see how the Husband’s decision of not purchasing a property in Canada would imply an intention of his stay being transitory in nature.  Further, since departure the Husband had not retained any rented premises in Hong Kong and there is no evidence of him having left behind any personal belongings in Hong Kong;

(d)  Upon departure, the Husband entered Canada on the strength of his working permit while the Children entered on the strength of study permits, all issued on 14 July 2019[10].  The Wife suggested that the school reports of the Children showed they were ‘average students with their own weaknesses’ and this implied the Children did not settle in well.  I have looked at the respective school reports of the Children dated 7 & 3 December 2021 reflecting their wellbeing for Term 1 which would have started in or around the date of the Petition and barring some minor areas still having room for improvement, as a whole I find that they reflect the Children were settling in well in their respective schools and were positively engaged in school curriculums[11];

(e)  The Husband’s mother did relocate to Canada at around the same time as the Husband and the Children, and to reunite with the Husband’s sister who has been living in Canada for years.  This is consistent with someone who intends to uproot himself to settle permanently in another country when he would arrange not only for himself but his close family members to leave/unite with him.  There is evidence, for example, from the PRC court documents stating the Wife told the PRC courts she was tricked by the Husband into believing that upon the Husband and the Children relocated to Canada, she would be able to join them soon and she told the PRC courts that she was looking forward to start a new and happy life in Toronto[12]. In my view, the fact that she has now ended up remaining in the PRC instead and the Husband and the Children are now in Saskatoon instead of Toronto, even if, for the sake of discussion, it is true that she was tricked by the Husband in the manner she claims, it still does not lean any support to her case; to say because she is now left behind, the Husband must also have not intended to settle down in Canada permanently is illogical when her very allegation is that the Husband deviously planned to leave her behind and the parties in any event have since reacted by divorcing one another by the 1^st PRC Proceedings and the Petition;  

(f)  In justifying the Husband’s physical absence in Hong Kong, the Wife brought to the attention of the Court the Declaration of Sponsor to the Immigration Department for the Wife’s renewal of dependency visa where it was declared by the Husband therein that he was only unable to return to Hong Kong during the pandemic[13]  and asked the Court to accept what the Husband declared to the authorities in an official document must be the truth, namely the Husband implied therein he would ‘return’ to Hong Kong indefinitely especially since he failed to state that he has settled indefinitely in Canada if the latter was indeed his intent.  To this the Husband’s reply is twofold: firstly, by conduct, he did travel to Hong Kong on two occasions in the midst of the pandemic in the summer of 2020, proving that it was possible to travel and more, he would do so if he had wanted to; secondly the date of this official document is 26 November 2020.  Thus, taking the Wife’s point to the highest, even if the Husband did intend to return to Hong Kong, be it indefinitely, that would nevertheless only amount to a reflection of his intention as at November 2020 – still some 9 months prior to the date of the Petition.  I agree that this point does not assist the Wife’s case much based on the above;

(g)  The Wife challenged the business address of the Husband remained unchanged as at the date of the Petition, and he only sought to change it to a Canadian address at a much later time in around May 2022 and the Wife says it must be litigation driven.  While I agree with the Wife that the changing of his company address came only after the Jurisdiction Summons may be interpreted as litigation-driven conduct, I note that the original address was a PRC address as opposed to a Hong Kong address.  In other words, even if the business address was not changed, it would not have alleviated the Wife’s burden in establishing the Husband’s domicile in Hong Kong;

(h)  The Husband incorporated a Canadian company, SK Company, on 25 April 2018 where he is the sole shareholder and that his sister and him are the only two directors.  The business of this company purportedly involves trading electronic goods, which is in similar nature to the Husband’s existing Hong Kong company, MHKCL.  In gist the Wife says despite his claim that he has started this new business in Canada, the Husband in fact is only running the same trading business as he did in Hong Kong, with MHKCL still playing a significant role and therefore his business interest still remained in Hong Kong as at the date of the Petition notwithstanding the place of work was Canada;

(i)  Related to the above is then the Wife’s assertion that the Husband, despite his claim of having acquired a new domicile in Canada, he has yet to have any personal bank accounts and/or credit cards in Canada.  I was being taken to the bank statements of SK Company and it was pointed out to me by the Husband that the items shown reflected the Husband has used the company account for his personal and household expenses too and since it is a company wholly owned by the Husband he has not encountered the need to open a separate personal bank account.  I can accept the Husband’s explanation on this;

(j)  The Wife then highlighted the fact that the Husband is still paying Hong Kong salary tax by reason of his own arrangement to receive a monthly salary of HK$15,000 from MHKCL. To this the Husband again took me through some bank statements, and later on helpfully assisted me with a table showing that for the period between January 2020 and February 2022, these monthly sums transacted from MHKCL to the Husband’s personal account (inflows), there were also transactions from the opposite direction back to MHKCL from the same personal account on divers dates (outflows), with the outflows larger than the inflows.  In other words, the Husband’s point, as I understand it and accept here, is that he was not financially relying on income generated in Hong Kong for his daily living in Canada and if anything, he had put more money into MHKCL than he would receive from it;

(k)  In discharging her burden of proof the Wife also seeks to demonstrate that the Husband’s assets (or at least those known to her) are mainly situated in Hong Kong.  To this the Wife has helpfully prepared a table showing the same and has fairly put in the same table the Husband’s assets located in the PRC and Canada.  It can be noted that all the landed properties concerned in these proceedings are located in the PRC.  More aptly, it is seen that the known assets of the Husband in Hong Kong, as at the date of the Petition, are mainly MHKCL (value unknown), the Husband’s MPF, 2 insurance policies and bank accounts under the Bank of China Hong Kong (BOCHK) and the Bank of East Asia (BEA). Excluding MPF and MHKCL, the Husband’s assets in Hong Kong are estimated to be at around HK$600,000.

42.  As one can see from the above analysis that, prima facie it cannot be denied in this matter the Husband has inevitably left some ties to Hong Kong.  Mr. Yim has in fact conceded, quite sensibly in my view, in the course of arguing the issue of substantial connection, that in the particular circumstances of this case, it is clear that the Husband has ‘a’ connection with Hong Kong, just not a ‘substantial’ one.  To me, it is the level of this connection which is the central question – whether it is residual, substantial, or so strong that it indicates on a balance of probabilities that Hong Kong remains the permanent place the Husband will reside indefinitely.

43.  For the reasons stated above I come to the view that the Husband was domiciled in Canada by 24 August 2021, the date of the Petition.  I find that by such date, the Husband has not merely stated his settled intent but has acted according to the same, to settle in Canada.  In reaching my findings here I have not placed any excessive weight on the simple fact that the Husband was not physically present in Hong Kong as I accept the Wife’s contention that this is a case of severance and thus warrant further investigation.  I also have not held against the Wife on how she has pleaded her case in the alternative manner as stated earlier – that was an observation regarding tidiness of pleading and case-management efficiency as opposed to any discrimination on merits regarding her case on domicile.  Looking at the matter separately and as a whole, I am not satisfied that the Wife has proven to the Court on the balance that the Husband was (still) domiciled in Hong Kong as at the date of the Petition.  Accordingly her primary ground under s.3(a) MCO has failed.

B.    Substantial Connection

The Law on Substantial Connection

44.  In the recent case of JQ v CLH [2022] 2 HKLRD 632 (at 641 to 645), the Court of Appeal set out the relevant principles as follows:

“21. The principles for determining whether a person has a “substantial” connection with Hong Kong for the purpose of s 3(c) of the Ordinance are well established. The leading authority on this topic in Hong Kong is the judgment of the Court of Appeal in ZC v CN (Divorce: jurisdiction) [2014] 5 HKLRD 43, where Cheung JA (with whom the other two members of the Court of Appeal agreed) considered in depth the statutory requirement of substantial connection under that section:

“[9.1] In line with the modern approach of statutory interpretation, one should not simply look at the natural and ordinary meaning of the words ‘substantial connection’ but also the context and purpose of this term.

[9.4] Whether a person has a substantial connection with Hong Kong is clearly a question of fact. No definition for this term will be succinct or comprehensive enough. What one may do is to look at the surrounding factors to see whether that person is substantially connected with Hong Kong at the time of the petition. As a starting point, one begins to see if that person has connection here and then decide whether that connection is a substantial one, see S v S [2006] 3 HKLRD 751 paragraph 15. In terms of connection, there must be physical presence in Hong Kong, this must be the ground rock of invoking the divorce jurisdiction. But because of the requirement of ‘substantial’, the presence cannot be of a transitory nature otherwise this will encourage ‘fly in’ and ‘fly out’ divorces, a theme that the Court has consistently emphasised, see, for example, Griggs (nee Sharp) v Griggs [1971] HKLR 299, Ta Tran Thi Thanh v Ta Van Hung and Another [1981] HKDCLR 37 and more recently S v S, B v A [2008] 1 HKLRD 43.

[9.5] In the majority of cases, where a married couple is in Hong Kong, the Court will have no difficulties in ascertaining whether they have a substantial connection here. Thus in RI v SSH [2010] 4 HKC 588, this Court held that:

‘4. …… Hence in order to see whether the proceeding has a real and substantial connection to Hong Kong one must, first of all, ascertain whether at the time of its commencement the parties have substantially conducted their matrimonial life in Hong Kong. Hong Kong being an international commercial city, the identification of this issue is most acute for expatriate families who live in Hong Kong. The relevant considerations are, for example, whether the parties’ matrimonial home is here, what is their past pattern of life; do they regard Hong Kong as their home for the time being even if their life style may indicate that they may not take root in one place for too long a time. Related to the issue are matters such as the place of work of the spouses: do they choose to work here; even if one of them has to ‘commute’ overseas to work, is Hong Kong still treated as their home base. Likewise for the children of the family: are they studying here or spending their vacations here even if they are studying abroad.’

See also LN v SCCM (CACV 62/2013), Judgment dated 4 June 2013 and DGC v SLC (née C)[2005] 3 HKC 293.

[9.6] While the discussion in RI v SSH was in the context of forum non conveniens, the question of forum is dependent on the place where the parties have the most real and substantial connection with the action. Hence the suggested factors are clearly applicable to the present discussion.

[9.7] Traditionally, the discussion of this topic mainly centred on the foreign expatriate community who are present in Hong Kong because of business commitments or to avail themselves of the opportunities in this international commercial city, see, for example, S v S, B v A, G v G [2005] 1 HKFLR 182 and Z v Z (Substantial Connection and Forum) [2012] HKFLR 346. Increasingly in recent years this issue is extended to many of the Hong Kong and Mainland China families who have homes or businesses both here and in the Mainland. Examples can be found in this and other cases such as LS v AD (Forum; Discovery in the PRC) [2012] HKFLR 376 and YS v TTWD (Substantial Connection: Forum) [2012] HKFLR 129. The focus of discussion in these cases is not about mainlanders who came here on visitors’ two way permit but those who have resident status in Hong Kong. Needless to say, the same approach of looking at the surrounding circumstances in order to ascertain the presence of substantial connection is to apply to these parties as well.

[9.8] The fact that a party has resident status which allows him or her to live here legally is only a factor to be taken into account. He or she may not be living here on a long term basis and only comes here occasionally. No doubt one has to look at other factors such as the party’s past pattern of life, the frequency of his visit to Hong Kong, the length and purpose of the stay, whether the party is engaged in business or work here, whether the rest of the family is here and whether a home has been established here and whether the children are at school here. It is also important to bear in mind that since the legislation only requires the party to establish a substantial connection in Hong Kong, he or she at the same time may have a substantial connection elsewhere, see S v S. In my view, 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.

[9.9] It is said in Savournin at page 184 (and also B v A at paragraph 20) that a meaning must be given to substantial connection wider than domicile or three years’ ordinary residence.  But this is not intended to be interpreted so loosely as to encourage residence of passage (Indyka v Indyka [1969] 1 AC 33 at 105) or divorce of convenience.  At the same time it will be unduly restrictive if one confines the connecting factors solely to that of a family context, namely, accommodation in a matrimonial home and presence of spouses and children.  While in the majority of cases, family context is the focus of the inquiry and a material factor, there may well be situations where a party is in Hong Kong without the presence of his family, but nonetheless is able to show that he has a substantial connection here.  It really depends on the circumstances of the case.  Such cases, however, must be regarded as exceptional.”

22. Further valuable guidance on the meaning of substantial connection for the purpose of s 3(c) of the Ordinance can be found in the judgment of Hartmann J (as he then was) in S v S [2006] 3 HKLRD 751:

“[11] The first reported authority concerning the meaning and extent of s.3(c) of the Ordinance appears to be Savournin v Lau Yat Fung [1971] HKLR 180, a judgment of Briggs J. Having identified the origins of the phrase ‘substantial connection’ in English family law, the judge confirmed that s.3(c) had established a new basis for determining the personal law of the parties to a marriage; in short, a new and additional ground of jurisdiction. He said:

‘Domicile in a country is obviously a substantial connexion with that country: so may three years ordinary residence be so considered.   Paragraph (c), a substantial connexion with Hong Kong, is in addition to those two requirements.   It is not substituted for them.  A meaning must be given to the phrase wider than domicile or three years ordinary residence.’  [my emphasis]

[12] As to the meaning of the phrase, Briggs J said that it was to be given its ordinary meaning; in short, it was not a term of art. Whether or not a party to a marriage had a substantial connection with Hong Kong has to be decided therefore within the factual context of each case.

[13] In my view, when considering the meaning and extent of the phrase, it is important to recognise that the legislature saw fit to qualify it with the indefinite article ‘a’. It is not therefore necessary for a petitioner to demonstrate that his substantial connection with Hong Kong is the only substantial connection he has with any jurisdiction or that his connection with Hong Kong is the most substantial connection he has with any jurisdiction. No exercise of comparisons is required. It is sufficient if he demonstrates that, among others perhaps, he has ‘a’ substantial connection with Hong Kong.

[14] Increasingly we are living in a world without borders. Capital sums are moved in moments from one side of the world to the other with little or no regard for national boundaries. The internet is universal. It is commonplace for even the modestly affluent to have homes in two countries. It is no longer only in the world of fiction that successful business people may at the same time live and work in two countries. S.3(c) is not at odds with this new reality. The subsection recognises that a petitioner who asserts a substantial connection with Hong Kong may also have a substantial connection with one or more other jurisdictions.

[15] But, of course, if the Hong Kong courts are to exercise jurisdiction, it must be shown on a balance of probabilities that a petitioner not merely has a connection with Hong Kong but that, bearing in mind the scope and purpose of the Ordinance, the connection is ‘substantial’.

[16] ‘Substantial’ is a plain enough English adjective. We all understand what it means – at least in substance (if I may be excused the play on words). I say that because it is not a word that lends itself to precise definition or from which precise deductions can be drawn. To say, for example, that ‘there has been a substantial increase in expenditure’ does not of itself allow for a calculation in numerative terms of the exact increase. It is a statement to the effect that it is certainly more than a little but less than great. It defines, however, a significant increase, one that is weighty or sizeable.

[17] It speaks for itself, I think, that an artificially constructed connection will not be a substantial one. A connection must be real in the sense, for example, that it has not been engineered for temporary tactical advantage. It was not the intention of the legislature (in passing s.3(c) into law) to create a convenient off-shore divorce jurisdiction. As it has been said in an earlier authority, the subsection is not intended for ‘birds of passage’.

[18] As the jurisdiction looks to the determination of matrimonial proceedings, a material 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. But those factors will not necessarily be determinative. In each case the factors to be considered will be different and the weight to be given to them, in the factual context of each case, will no doubt be different too.

[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.”

45.  The Court of Appeal in the same case went further to hold that a test based on the requirement of ‘exceptionality’ is not useful and each case must be looked at on its own facts:

“24. … It is important to emphasise, however, that there is only one statutory test, or question, for determining whether the jurisdictional requirement under s 3(c) of the Ordinance is satisfied, namely, whether a party to the marriage had a substantial connection with Hong Kong at the time of the petition. There is not a separate category of parties without the presence of family in Hong Kong who have to satisfy the requirement of “exceptionality” before jurisdiction under s 3(c) can be established. We do not read the judgment of Cheung JA in ZC v CN as seeking to lay down any such principle. It seems to us to be clear, from reading §9.9 of his judgment in ZC v CN as a whole, that the learned judge was merely emphasising that in the majority of cases, the family context is the focus of the inquiry and a material factor for determining the question of substantial connection, while recognising that there could be cases where, without the presence of his/her family here, a substantial connection with Hong Kong can nonetheless be established. Such case may not be frequent, and thus may be regarded as “exceptional”. It is, however, wrong to elevate “exceptionality” as the test for determining substantial connection. A test based on “exceptionality” is not useful either, because it would only lead to further, fruitless debates on what may or may not be exceptional, or sufficiently exceptional. Ultimately, each case must be looked at on its own facts to determine whether a person had a substantial connection with Hong Kong at the material time. …”

The Pleaded Case

46.  The Wife has pleaded in the Petition 5 grounds, as I have set out earlier, and therefore as a matter of pleading, her affirmation evidence ought to be considered only in the context of fitting into those grounds and those grounds alone.  This is in accordance with rule 9(9) of the Matrimonial Causes Rules, Cap. 179A as well as demonstrated in CN v YTW [2020] HKFC 146.

47.  Mr. Tam has in his skeleton submission listed out the evidence the Wife relies upon in establishing the Husband’s substantial connection and I shall gratefully adopt them here:

(i)     The Husband was (and still is) a permanent resident in Hong Kong;

(ii)    He has continued to renew his Canadian work permit without pursuing any permanent residency;

(iii)   He has not applied for or obtained permanent residency in Canada for himself or the Children all along;

(iv)   He has maintained active use of his BEA and BOCHK bank accounts in Hong Kong;

(v)    He continued to operate its trading business substantially through MHKCL and its bank account in Hong Kong to transact with the Chinese factory supplier;

(vi)   He was paid HK$15,000 per month salary from MHKCL into his BEA bank account in Hong Kong;

(vii)  He has reported tax and contributed to MPF in Hong Kong;

(viii) He did not withdraw his MPF when he flew to Canada, and also not afterwards;

(ix)   He has substantial liquid assets in Hong Kong (including MPF) at an approximate value of HK$1 million;

(x)    He did not change his address in MHKCL’s NAR1 to his Saskatoon address until only 6 May 2022; and

(xi)   He has not terminated his medical insurance taken out with Prudential, premium of which is paid in Hong Kong and in HKD.

48.  Mr. Yim in his skeleton submission focused on each of the Wife’s pleaded ground and drew my attention to the following oppositions which I have summarised here:

(i)     Ground (i) – the Wife had not travelled to Hong Kong since January 2020 and the Husband, save from the two trips as stated earlier, had been in Canada since January 2020; this is let alone neither of them was physically present in Hong Kong as at the date of the Petition.  For pre-2020 evidence, the Wife’s travel pattern was akin to the “frequent same day returns and short overnight stays” scenario as discussed in ZC v CN (supra) where the Court of Appeal held on that occasion, inter alia, there was no substantial connection;

(ii)    Ground (ii) – while not disputing the same they were at best pre-departure – thus pre-petition – events;

(iii)   Ground (iii) – the Wife’s evidence did not tally with her pleaded frequency of travel and in any event the Wife never stayed overnight at the family home in Hong Kong and that there was never any ‘family life’ (meaning including the Wife) between 2013 and 2019 or during anytime in Hong Kong at all;

(iv)   Ground (iv) – the ‘centre of family life’ (生活重心) could not be in Hong Kong when none of the family members were in Hong Kong.  The Husband has no substantial assets and holds no landed property in Hong Kong and that he has taken steps to apply for permanent residency in Canada;

(v)    Ground (v) – it is not uncommon for someone in this modern age of globalisation to hold foreign bank accounts and companies and for businessmen to engage in business in different countries: see ZC v CN (supra.) at §11.1; and PH v DL [2021] HKFC 166 at §49.

Discussion on Substantial Connection

49.  I shall not repeat the facts discussed under the issue of domicile above insofar as they are applicable to the issue of substantial connection.  To state the obvious to begin with, one of the major differences between domicile and substantial connection is that while a person can only have one domicile at a time, a person may have substantial connections with more than one, or multiple countries. 

50.  In applying the above legal principles to the facts, I have reminded myself that while this is a well-trodden area in law it is on the other hand factually highly sensitive and one should not over-interpret the semantics of what is ‘substantial’ but rather to try to put real and practical meaning to it, bearing in mind the family context and purpose as a focus – albeit not the only focus – of inquiry.

51.  I must also say here that, in this matter, it is somewhat tempting to take into account COVID-19 circumstances as exceptional, where the Wife explains, amongst other things, the absence of the Husband in Hong Kong at the material time was pandemic related.  In my view, much has been said in recent case law about the changes COVID-19 has brought onto the world and that what we had once perceived as exceptional and one-off at its inception, fast-forward only some three years to present, many have now come to terms with their living pattern being indefinitely affected by the very same pandemic.  Indeed this is but one example of what could theoretically be branded as exceptional and there could well be many other things.  I think a better course to take is, in line with the Court of Appeal’s views expressed in JQ v CLH (supra.), to refrain from being drawn into such a debate as to what amounts to exceptional in a particular case but rather, to take into consideration all relevant factors in a holistic manner.

Husband’s Substantial Connection

52.  Naturally, one should deal with the Husband’s substantial connection first.  To put into context of this case, as the Husband is found to be domiciled in Canada and yet has admitted to have ‘a’ connection with Hong Kong, the following discussion shall focus on (i) the nature of the connection; and equally importantly (ii) the context and purpose of the connection.

Practical Meaning

53.  Of the grounds/evidence relied upon by the Wife, since the burden of proof is on her, I find that much emphasis was put by Mr. Tam from the points listed above and orally supplemented at the hearing on the financial dealings of the Husband, i.e. ground (3)(v) (and part of ground (3)(iv)) of the Petition.  Perhaps notwithstanding it was pleaded as his last ground the Wife viewed it as her strongest point, namely despite his physical presence with the Children in Canada the Husband remained a permanent resident, tax payer, bank account user, insurance holder, salary receiver and MPF contributor in Hong Kong and has still chosen to continue with such a pattern since his departure, be it as at the date of the Petition or post-petition till present.  In the course of these submissions I did ask a few times how these points can be put in the context of the family and it seems despite the admirable efforts of Mr. Tam I was not given a direct answer.

54.  While family context and purpose is not the only necessary focus, the lack of it on the other hand would be something that I must be alerted to.  Even by investigating the bank statements as invited, they cannot prove on the balance that the Husband was/is financially relying on his financial dealings in Hong Kong for family related expenses in Canada.  A lack of such a connector leads me to view that while the Wife can have her say on how the financial affairs of the Husband could be better managed, the Husband is at liberty to arrange his own finance as of right and the Court should not slip into becoming his money manager to comment on, for example, why he would continue to engage an insurance agent in Hong Kong and to use the address of the latter as correspondence address; or that he should cease receiving salary in Hong Kong for tax purposes now that he is in Canada (as the Wife did in fact contended these points).

55.  To conclude on the Wife’s contention on the Husband’s business connections in Hong Kong, it is my view that in the circumstances of this case where it is a case of departure/severance, the financial ties left behind by the Husband are not sufficient for me to put any real meaning to them which would favour the Wife in establishing such connections being a substantial one.  To me, the Husband in this particular case is a person with a background related to the PRC, Russia, Hong Kong and Canada, it would not be seen as unnatural or artificial for him to have assets/financial dealings internationally, be it in these particular countries or elsewhere.  As the Wife has said it herself the business nature of MHKCL and SK Company are similar and therefore I do not find it odd in such circumstances that the Husband did not remove his financial connections with Hong Kong, and therefore the same cannot be practically seen as his substantial connection with Hong Kong. Ground (3)(v) (and part of ground (3)(iv)) must fail as a result.

56.  By looking at her other grounds, namely ground (3)(i) to (iv) together, they can be understood as emphasising on the alleged family life in Hong Kong between 2013 and 2019.  Of those concerning the Husband’s substantial connection would be ground (3)(i) and (ii), as the other points relate to the Wife’s substantial connection which I will return to later.

57.  It is accepted that these grounds are family focused but the gap the Wife is tasked to fill here is this.  Putting these grounds to the highest, they only prove the state of affairs prior to departure, with a time gap of 1 year and 7 months (or 19.5 months to be more precise) prior to the date of Petition.  The Wife used the word ‘only’ to describe this time gap, and invited the Court to compare it with the 7-year period the family stayed in Hong Kong.  With respect I cannot agree this to be a fair comparison.  Again, trying to be real and practical, in this 19.5-month gap, which in my view is not a short period of time, the Children were uprooted and being settling in Canada, in local schools, with the Husband being their primary carer.  A number of photos were exhibited showing an integrated lifestyle in Canada with the Children enjoying team sports activities such as ice hockey and gymnastics with the Husband showing support.  There is also evidence that the Wife would exercise continuous electronic access to the Children.  Seen from this light, the Husband has indeed, as at the date of Petition, provided a new family life for himself and the Children with its centre no doubt being in Canada.  I did invite the Wife to take me to any exhibits in support of the content in her affirmation that the Children were meant to travel to Canada only for primary school education purpose and would return to Hong Kong upon completion of the same.  I was informed that what was stated in her affirmation in this regard would be the only evidence.

58.  To conclude here, I find that ground (3)(i) and (ii) insofar as they related to the Husband, taken to their highest, are not sufficient to satisfy the Court that the Husband thereby would have a substantial connection with Hong Kong by reason of the family life he once conducted in Hong Kong prior to departure.

59.  As such, all the grounds relied upon by the Wife insofar as the Husband’s substantial connection with Hong Kong is concerned have failed.

The Wife’s Substantial Connection

60.  This relates to ground (3)(i), (ii), (iii) and the other part of (iv) insofar as they relate to the Wife.  I shall deal with them together below.

61.  The long and short of these grounds in my view comes down to one real proposition, namely that the Wife did participate and was a part of the marital family life in Hong Kong and not only was she considered as a part of the family, she in fact resided, albeit sporadically, at the residences she and the Husband together rented between 2013 and 2019; and therefore, the centre of the family (of 4) was in Hong Kong even post-departure and more importantly, as at the date of the Petition.

62.  Assuming for a moment I accept the Wife’s contention that she was part of the family despite her travel pattern during the material times and there was indeed a family life, my understanding then is that the Wife’s strongest point here would be that Hong Kong, not the PRC nor Canada, nor anywhere else, was the only place where marital family life was conducted, and therefore this is the substantial connection.  This point was raised indeed by Mr. Tam at the hearing.

63.  At first it did appear that there is some force in this argument, especially when the Wife has exhibited a large number of photos (over 200 at least) spanning over the years of the Children’s lives.  However, upon a more detailed examination of the evidence, including the photos and others, while I can see the Wife in some of the photos spending quality times with the Children, I must say I am unable to find one photo of the alleged family of 4 with both parties and the Children, let alone in Hong Kong.  Nor are these photos clear as to the location where they were taken as many were taken indoor. Giving the Wife the benefit of the doubt here, I can only at most accept she has been in and out of the Children’s lives between 2013 and 2019 in Hong Kong despite the photos do not even convincingly depict the same; but I am afraid the evidence falls short to substantiate what she has pleaded in essence about having conducted a family life with the Husband and the Children in Hong Kong.  In my view, the more likely truth from the evidence before me is that the Children had been spending time with their parents but sadly only separately as opposed to have conducted a harmonious family life all together.  My finding is consistent with the other evidence of the Wife in telling the Court that, for example, she would avoid confrontation with the Husband and thereby kept her overnight stays to a minimal.  

64.  Following from the above, when it was subsequently both parties’ intention to end the marriage since, as at the date of the Petition, not only the Husband but the Wife who had by her very act in presenting the Petition had also asked for the marriage to be dissolved, it then becomes obvious there would be no more marital family life in any event.  So it would be quite unfair to compare Canada to Hong Kong in this respect to say no marital family life was ever conducted in Canada when it was virtually impossible to do so.

65.  However, the Wife’s case on her own substantial connection faces further problems.  In my view one real concern is that the Wife herself has not travelled to Hong Kong since January 2020 despite pleading the centre of the family was in Hong Kong.  Her explanation is that since the Children had gone to Canada she had thereby lost all meaningful purposes to come to Hong Kong.  Further, my earlier analysis was premised on an assumption that I am satisfied with her travel pattern, for ease of discussion.  On the evidence before me, I am in fact of the view that the Wife’s frequency and duration of travel over the relevant pre-petition period were akin to the ‘fly in’ and ‘fly out’ transitory nature as described in ZC v CN (supra., at §9.4).  

66.  For the reasons above, the grounds relied upon by the Wife insofar as establishing her own substantial connection are concerned, have also failed.

CONCLUSION ON JURISDICTION

67.  All in all, I am not satisfied the Wife has proven on the balance of probabilities that the Hong Kong Courts have jurisdiction over the Petition and accordingly the Petition is dismissed for want of jurisdiction.

C.   Forum non conveniens

68.  In the event I am wrong in my conclusion on jurisdiction above, I now turn to consider the alternative relief sought by the Husband in the Jurisdiction Summons, namely to stay these proceedings on the ground of forum non-conveniens.  Specifically, the Husbands prays that the Luohu Court, not the Hong Kong Courts, is the natural and appropriate forum.

The Law on forum non-conveniens

69.  The House of Lords decision in Spiliada Maritime Corporation v Cansulex Ltd (The Spiliada) [1987] AC 460 has been adopted by the Court of Final Appeal in SPH v SA (2014) 17 HKCFAR 364 and the Spiliada test in the context of matrimonial proceedings is stated to be (at §51):

“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.”

70.  Both parties have applied the Spiliada test in their respective submissions and I shall also be guided by the same.

The Husband’s Case

71.  When it comes to arguments on forum, the burden shifts to the Husband and Mr. Yim was quick to point out that in this case, there cannot be any dispute the Luohu Court is an available forum.  This is not challenged by the Wife.

72.  The Husband also highlighted the following points:

(i)  Neither parties were born nor raised in Hong Kong and not married in Hong Kong.  They married in Shenzhen;

(ii)  The Wife is not a permanent resident in Hong Kong and predominately resides in the PRC at all times.  One of the Children was born in Hong Kong and the other in the PRC;

(iii)  There was no marital life in Hong Kong, and the only time the parties had lived together as a married couple would have dated back to around 2007 to 2012, in the PRC.  In any event since January 2020, none of the family members lived in Hong Kong;

(iv)  The parties had no joint assets in Hong Kong.

The Wife’s Case

73.  The Wife’s contention that Hong Kong would be the more appropriate forum (than the Luohu Court) is in gist as follows :

(i)  The family life was conducted in Hong Kong between 2013 and 2019 and this period also represents an important period in the upbringing of the Children;

(ii)  The Husband has considerable assets in Hong Kong;

(iii)  With the Husband and the Children now in Canada, any logistical inconvenience for the parties insofar as they relate to Hong Kong or the PRC would be largely the same and that the Hong Kong Courts are progressively adopting the use of video-linked facilities;

(iv)  The above only goes to further highlight a basic question for the Husband: why did he choose the Luohu court and now claims the same to be the more convenient forum when he could (or should) have initiated divorce proceedings in Canada instead;

(v)  The Hong Kong Courts, and specifically the Family Court, are well experienced in dealing with divorce cases involving PRC and/or overseas assets.

Discussion on forum – Stage 1

74.  In applying stage 1 of the Spiliada test, the Court has to identify the most appropriate forum for the trial of the issues.  Clearly in divorce context, the issues would invariably be the main suit, children, and finance matters.  It appears to me that by their respective divorce proceedings commenced in the PRC and Hong Kong, the parties do not dispute their marriage has broken down irretrievably.  Therefore, the focus would be on children and finance matters.

75.  Firstly regarding children matters, while the Wife in the Petition did seek custody care and control of the Children, it was not specified as to the intended location she would want to care for them.  However, from her Form E filed on 15 November 2021, she has specifically listed out a range of proposed orders (under Part 6.1 therein) which, inter alia, included an order for leave for the Children to live in Shenzhen[14]. To me, coupled with the fact that she had remained in Shenzhen and not travelled to Hong Kong since January 2020, it certainly appears likely that she would want to remain there and have the Children settled in Shenzhen also should she be granted care and control.  On the other hand, should the Husband be granted care and control of the Children, it is clear from the evidence that he will seek to remain in Canada.  This perhaps brings about an obvious and relevant point which ought to be stated here for clarity, namely that neither party, at least from the evidence before me, want the Children to live in Hong Kong as a result of their divorce. 

76.  The Court of Appeal held in RI v SSH [2010] 4 HKC 588 (at 596F to H) that the provision for the children is “inextricably tied up with the distribution of the matrimonial assets” and that it would be “a waste of the parties’ resources for litigation to be conducted on two fronts”.  Seen from this light, having the divorce matters litigated in the Luohu Court would avoid splitting up the Children and finance matters on two fronts; on the other hand, even if solely focusing on children matters, practically speaking if the disputes are to be adjudicated in Hong Kong, it would mean that potentially both parties would be seeking an order for relocation to PRC and Canada respectively, and thereby the function of the local social welfare department, for example, would be seriously hindered in carrying out any meaningful investigation to assist the Hong Kong Courts especially when both parents and the Children are all outside Hong Kong.  Such state of affairs would, in my view be quite unnatural, and inconvenient for the Family Court to deal with because in reality, there are not two but three fronts in this matter in terms of locality of relevant persons and assets.

77.  Secondly for financial matters, I first turn to deal with the landed properties.  There are altogether 4 landed properties as disclosed by the parties and they are all situated in the PRC :

(i)  A property situated at Guilin City, Guangxi province, under the joint name of the parties (“Guilin Property”);

(ii)   A property situated at Zhongxing Garden, Luohu, Shenzhen, under the sole name of the Husband.  This is apparently one of the former matrimonial homes prior to 2013, and where the Wife currently resides (“Zhongxing Garden Property”);

(iii)  A property situated at Huizhou, Guangdong province, under the sole name of the Husband (“DMS Property”); and

(iv)  A property situated at Huizhou, Guangdong province, under the sole name of the Wife (“1502 Property”).

78.  With documentary evidence in support, the Husband pointed out that in relation to the Guilin Property and the Zhongxing Garden Property, there are likely to be disputed claims and therefore it would be better to have these resolved in the PRC by reason that they are PRC assets.  In short, the Husband says the Guilin Property was exclusively funded by the late father of the Husband in 2007 despite it being registered under the name of the Husband[15].   As to the Zhongxing Garden Property, it used to be the staff quarters of the late father of the Husband who worked in a PRC company named ZCL and it is the Husband’s contention that shortly before his demise, the Husband’s father transferred his interest to his wife, namely the mother of the Husband[16]. The father of the Husband passed away on 5 September 2016.

79.  The Husband has no dispute as to his ownership to the DMS Property.  The Wife also confirms she does not dispute ownership of the 1502 Property.  The Wife pointed out that regarding the alleged disputed claims, firstly the burden is on the Husband to show the ownership of any such properties being different from the legal titles.  Secondly, I think the Wife made a valid point that insofar as these aforesaid disputes are concerned, the third party related would be the Husband’s mother whom, by the Husband’s own evidence, is now residing in Canada.  Thus it would not be more convenient to have the proceedings conducted in the PRC than in Hong Kong insofar as witnesses are concerned in this respect.

80.  Further and related to the above is the estate of the late father of the Husband.  From documents highlighted to me by the parties, the relevant PRC probate document stated that while the Husband (and his sister) would have been entitled to a share as the lawful son (and daughter) of the deceased under the laws thereof, both the Husband and his sister had renounced their rights to the estate of their late father, thereby permitting the entire estate to be succeeded by the lawful wife of the deceased, namely the mother of the Husband alone.  To this, while the Wife confirms she does not challenge the authenticity of these probate documents, she cannot help but notices that the date of the probate document was 7 December 2020.  The Wife asked the rhetorical question as to why choose to execute the probate document some 4 years after his father’s death, and more importantly, some 4 months after the Husband had commenced the 1^st PRC Proceedings on 31 July 2020.

81.  Aside from landed properties and probate, the Husband also drew my attention in relation to some money transactions from the mother of the Husband to the Husband, where in gist the Husband says the nature of which are loans, and as the transactions took place in the PRC the issue would be PRC centric.  To this the Wife runs the same point as above in reply, namely the mother herself is now located in Canada, it would not be any more convenient to have these issues heard in the PRC as opposed to Hong Kong.

82.  In my view, regarding the potential financial matters to be determined consequential to the divorce and considering them in the round, I would place more weight towards the fact that the assets, and not the personnel, involved are situated in the PRC.  This is quite different from children matters where the location of the Children and the parties and their respective status quo thereof would carry a more significant weight, for obvious reasons.  There is no evidence to suggest the relevant persons could not or would not testify for the purpose of dealing with the potential financial disputes in the Luohu Court and the Husband has in fact at all material times instructed PRC lawyers to handle the same so far.  The Wife’s allegations against the probate matters of the late father of the Husband, however persuasive they may appear to be, only goes to show the possibility of further and more complex disputes arising from financial disputes of this divorce, but the fact that the probate was administered in the PRC remains a point which will not assist the Wife’s case in the context of the present matter.

83.  From the above, I find that the Luohu Court is the more appropriate forum in the circumstances. 

Personal or Juridical Advantage – Stage 2

84.  This is the stage 2 of the Spiliada test and it is not disputed that the burden shifts to the Wife to demonstrate deprivation of a legitimate personal or juridical advantage for the matter to be adjudicated in the Luohu Court.

85.  To this, the Wife takes up the point about discovery procedures in the PRC not being as extensive as Hong Kong and thereby creating a juridical disadvantage for her.  In particular, she contends that there is no specific discovery or interrogatories procedures under the PRC system, and that the PRC Court has no jurisdiction to deal with assets outside the PRC.  She says the Husband’s financial disclosures so far is suspicious to say the least and he has failed to show how he sustains his life in Canada.  At the hearing the Husband raised, and not disputed by the Wife, that insofar as the Wife’s expert evidence on PRC law is concerned, there has been no mention about the discovery procedures under the relevant PRC law being inferior to those in Hong Kong.  In other words, the Wife’s contentions are not supported by expert evidence and can amount to bare allegations only.

86.  The Husband went further than this and brought to the attention of the Court that according to the expert evidence produced by the Husband, there are various recourse to deal with non-disclosure by a divorcing party in PRC divorce proceedings, including a reduction to or a bar from the distribution of the family assets.  The Husband’s PRC legal opinion also mentioned the relatively new Civil Code of the People’s Republic of China which became effective on 1 January 2021 in demonstrating a range of applicable divorce procedures.

87.  The Husband also submits that practically, there is now the recently effective Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance, Cap. 639 which can facilitate the enforcement of financial orders made in the PRC to be registered in Hong Kong, and in addition, the availability of Part IIA Matrimonial Proceedings and Property Ordinance is also an alternative safeguard in this respect.  While I appreciate the practical value of these Ordinances, I do not consider them as relevant in my analysis of this issue. 

88.  In my view, I can appreciate the Wife’s contention stemming from the comments made in Spilida (at 482F to H) in relation to discovery systems in various jurisdictions and that each of these systems no doubt would have its virtues and vices.  The Wife also relies on ZJW v SY (Substantial connection; Jurisdiction on stay of proceedings: PRC) [2016] HKFLR 427 (at 460 to 461, and 464B to D) to say that the lack of disclosure by the husband in that case is similar to the Husband here in that it gives the Wife no confidence in doing justice if the proceedings were to be conducted in the PRC jurisdiction which will then deprive her rights and thereby causes her grave injustice.  However, it was pointed out by the Husband that (1) ZJW was a 2016 decision and as his PRC legal opinion has covered, the applicable law and procedure in the PRC have further evolved since; and (2) the contention of the wife in ZJW was fully supported by a PRC legal opinion in identifying significant weaknesses in the (then) discovery procedures in the PRC justice system (at 460A to C).  Here, this is exactly what is lacking from the Wife’s expert evidence. 

89.  The Wife further took me to consider the list of documents filed by the Husband in the 2^nd PRC Proceedings[17] and invited me to note that the companies disclosed therein are all Canadian and Hong Kong companies, as opposed to PRC companies.  To this, the Husband considers the same to be a good example to show that the PRC proceedings do not limit to dealing with PRC assets but assets worldwide.  I agree to the Husband’s observation and I also note that the list of documents has also displayed various page numbers references supporting documents to the items on the list.  This also goes to show that, contrary to the complaint of the Wife against serious non-disclosure on the part of the Husband, the Husband has, on the strength of this document, provided supporting documents to each of his worldwide assets disclosed therein.

90.  At the hearing I also enquired with the Wife about the point where she had chosen to defend in the 1^st PRC Proceedings, and that only in the 2^nd PRC Proceedings she had raised therein, for the first time, jurisdictional challenge vis-à-vis Hong Kong.  To this, Mr. Tam fairly put it no further than what the evidence is before the Court and says the Wife was not legally represented in the 1^st PRC Proceedings.  On the other hand, Mr. Yim wishes to bring home this point by suggesting the very conduct of the Wife submitting to the PRC jurisdiction in the 1^st PRC Proceedings is hard evidence to show that she herself must have believed that justice can be done in the PRC Courts.  To this, I have some sympathy towards the Wife here and accepts her explanation that at the time of the 1^st PRC Proceedings she was acting in person and as such, she may not be aware of the possibility to state her case at once to say Hong Kong, in her view, should be the place for litigation instead.  However, I must remind myself that the Wife, on the other hand, in both the 1^st and 2^nd PRC Proceedings, has the wisdom to challenge jurisdiction at once but only in another sense – as to her residential area; thereby causing the PRC Courts twice to have to adjudicate the matter firstly in the Yantian Court, and following her oppositions, then transferred to the Luohu Court.

91.  Having considered all submissions made by the parties and evidence available, I am not satisfied that the Wife has discharged her burden in proving there would be any personal or juridical advantage which the Wife would be deprived of if the matter is being proceeded in the Luohu Court.  Accordingly, no balancing exercise under stage 3 of the Spiliada test is required.

92.  For the reasons aforesaid, if it were necessary for me to consider the Husband’s application for stay on the ground of forum non conveniens, I would have allowed his application in ruling that, all circumstances considered, the Luohu Court would be the appropriate forum.

Application of the Wife to adduce New Evidence post Hearing

Admissibility

93.  I now return to deal with the new evidence matter. On 22 September 2022 the Wife wrote to the Court enclosing a document purported to be a ruling of the Luohu Court dated 20 September 2022, in dismissing the 2^nd PRC Proceedings. (“the PRC Ruling”) The Husband responded by a letter to the Court dated 26 September 2022 objecting to the manner of which the Wife has attempted to adduce further evidence after closing of the same, as well as its contents.  By the Court’s memo dated 30 September 2022, it was inter alia directed that if so advised, the Wife is to take out a formal application within 7 days and that the application, if taken out, would be dealt with by paper disposal with its ruling to be dealt with in this Judgment.  The Wife duly filed a Summons on 7 October 2022 for the inclusion of the PRC Ruling by reason of its relevance and importance to the issue of jurisdiction and/or forum.

94.  The parties have complied with the relevant directions and I now have both parties’ respective stance over the PRC Ruling, as well as the issue of costs.  

95.  Without further lengthening this Decision by repeating all the legal arguments that have been put forward by the parties, all I want to say about this new document is as follows: (1) there is no dispute that admitting post-hearing evidence lies within the exercise of the Court’s discretionary power; (2) in my view, albeit neither party nor the Court had asked for such an update at the conclusion of the substantive hearing, now that the PRC Ruling became available, I could place no blame on the Wife for wanting to inform this Court on the same after the closure of evidence given this is not a document that could have been placed before the Court at the hearing; (3) having read the PRC Ruling, I am of the view that it is indeed a document relevant to the Jurisdiction Summons, especially to the issue of forum, which would have entered into my consideration if the same was available at the time of the hearing; and (4) while the Husband has referred me to the well-known principles under Ladd v Marshall [1954] 1 WLR 1489 and submits that the conditions therein are not met when applied to the present situation, I am more inclined to conclude, and I so do here, that the interest of justice is better served by accepting than rejecting the consideration of the PRC Ruling, in having adopted a multi-factorial approach as advocated by the Wife in balancing all the relevant factors : see TYT v TLH [2020] HKFLR 553 (at 568H to 570B).  

96.  Accordingly, I make an order in terms of her Summons taken out on 7 October 2022 and consequently to include the PRC Ruling as part of the evidence and have it marked ‘MFI-1’, with costs in the cause of the Jurisdiction Summons.  Since I have already invited parties to make submissions on costs to this Summons and have considered the same, this will be a final costs order.

Further Discussion

97.  In fully considering this new piece of evidence, I note that the Wife asked the Luohu Court for a variety of reliefs including (i) to dismiss the 2^nd PRC Proceedings based on re-litigation in Hong Kong; (ii) custody of the Children as well as children maintenance based on standard of living in Shenzhen; and (iii) a reduction or zero distribution of family assets to the Husband by reason of his financial non-disclosures.

98.  In arriving at its ruling, the Luohu Court stated inter alia that the Husband has already ‘answered’ to the Petition (‘原告已在香港法院應訴答辯’).  With the greatest respect, this information is incorrect in the eyes of this Court and both parties acknowledged the same in their submissions. It is most unfortunate that the Luohu Court has come to an understanding different from not only this Court’s understanding, but more importantly, both parties’ common understanding in this respect. Further, it is noted from the PRC Ruling that the Luohu Court relied solely on the above (mis)understanding in dismissing the 2^nd PRC Proceedings.  This Court will not speculate as to the reason why the Luohu Court was so mis-informed about the Husband’s correct legal status regarding jurisdiction in these proceedings, save that it is clear to me that in such circumstances, justice demands some form of clarification to the Luohu Court.

99.  The PRC Ruling did not discuss on the other reliefs sought by the Wife.  However, in considering this document, I find that when the Wife is seeking children maintenance as per the average living standard of Shenzhen[18], this is a further piece of evidence in addition to her Form E that I consider to only add to reinforce my earlier findings that the Wife has been as at the date of the Petition, and is still seeking to care for the Children upon divorce in Shenzhen, not Hong Kong.

100.  Further, the Wife herself has now asked for an appropriate financial relief in the event the Luohu Court finds the Husband to be less than forthcoming in his financial disclosures, in seeking to reduce or even dismiss any financial claims the Husband would be otherwise entitled to, in the distribution of family assets.  This is exactly what the Husband was litigating about earlier and I shall not repeat, save that I should say this piece of new evidence in fact further reinforces my findings above on forum non conveniens in a consistent manner.

101.  Further, I am of the view that given my findings in this Decision, and notwithstanding the 2^nd PRC Proceedings is currently dismissed by the PRC Ruling, it appears to me that the Husband would be at liberty to seek further recourse in the PRC Courts either by reviewing/appealing the PRC Ruling and/or to commence a new set of proceedings with the benefit of now having the ruling of the Hong Kong Courts on jurisdiction by this Decision. In other words, it remains the case that the Luohu Court is an available forum and it has not been contended otherwise by the Wife.

102.  For the reasons above, and having fully considered the PRC Ruling, my findings earlier in this Decision in relation to the jurisdictional matters remain the same.

JURISDICTION SUMMONS & ORDER

103.  The Petition filed on 24 August 2021 is hereby dismissed for want of jurisdiction.  At present I do not see why costs should not follow the event and I make a costs order nisi that the Wife shall pay the Husband’s costs of these proceedings, including the costs of the Jurisdiction Summons and the Summons dated 7 October 2022, with certificate for counsel, to be taxed if not agreed.  This costs order nisi shall become absolute in the absence of any application to vary within 14 days.

II. MPS SUMMONS & ORDER

104.  By reason of my various findings above, there is no need for me to go into the MPS Summons.  The Court has no jurisdiction to deal with the same and for that reason the Wife’s MPS Summons is dismissed.  At present I do not see why costs should not follow the event and I make a costs order nisi that the Wife shall pay the Husband’s costs of the MPS Summons, with certificate for counsel, to be taxed if not agreed.  This costs order nisi shall become absolute in the absence of any application to vary within 14 days. 

105.  I thank both counsel for their helpful and comprehensive assistance in these matters.