C v D

CourtFamily Court (Hong Kong)
Judgment Date12 November 2001
Judgement NumberFCMC1444/2000
Subject MatterMatrimonial Causes
FCMC001444/2000 C v. D

FCMC001444/2000

IN THE DISTRICT COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

F.C.M.C. No 1444 of 2000

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BETWEEN
C Petitioner

AND

D Respondent

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Coram: HH Judge Saunders

Date of hearing: 9 November 2001

Date of Judgment: 12 November 2001

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JUDGMENT

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1. This is an application by the Respondent (husband) for an anti-suit injunction.

2. The application arises in the following circumstances. The Petitioner (wife) and the husband were married in Nevada USA in May 1994. There is one child of marriage, a son born on 18 December 1996. Unhappy differences arose between the husband and wife and on 17 February 2000 the wife issued a petition in this court based on the husband's unreasonable behaviour. The husband did not seek to defend the petition and on 4 May 2000 a decree nisi was made by Deputy Judge Jenkins.

3. At the time the petition was issued the wife asserted in paragraph 3 thereof that she lived at G/F, 1A Robinson Road Hong Kong. The statement as to arrangements for the child of the family asserted that the child lived with his mother at the same address, that he had attended a preschool in Robinson Road Hong Kong and that it was proposed that he would "continue to reside with his mother" and would attend a primary school at the appropriate time.

4. There were also issues of ancillary relief between the parties and orders for directions as to affirmations were duly made. It was soon apparent to all involved that, notwithstanding the assertions made in the petition as to residence, the wife had, at about the same time as she issued the petition, moved to Shanghai where she is now a permanent resident. She took the child with her and he has remained with her throughout. There are significant issues as to custody and access. The issues of ancillary relief are complicated, involving property in a number of jurisdictions and companies in a number of jurisdictions, including those which specialise in secrecy provisions in relation to companies registered in those jurisdictions.

5. By September 2001 and the pleadings bundle comprised five lever-arch files are totaling nearly 1800 pages and a further bundle containing solicitors correspondence. Both husband and wife had filed affirmations of means, both have been required to file answers to detail questionnaires, there had been a judgment by Judge Chan as to access to the child, and numerous other interlocutory steps.

6. On Saturday 1 September 2001 the husband received, by post, documents issued by the Xuhui District People's Court of China indicating that the wife sought a decree of divorce against the husband in China, sole custody of the child and the sole right to two specified properties in Shanghai. Those proceedings were, according to the papers, scheduled for a first hearing on 19 November 2001.

7. Although both were represented in the Hong Kong proceedings at the time by very experienced and able solicitors, both of whom specialise in matrimonial law, nothing whatsoever had been said to the husband or his solicitors to indicate that the wife intended, although she already had a decree nisi in Hong Kong, to commence parallel proceedings in China. It transpired that it was equally a surprise to the wife's solicitors that she should issue proceedings in Shanghai.

8. On 10 September 2001 the husband sought an injunction restraining the wife from proceeding with continuing or otherwise pursuing divorce proceedings or any other proceedings relating thereto in the Shanghai court. The matter came before me on 11 September 2001 with both parties represented by counsel. At that time I granted an interim injunction restraining the wife from instituting any further proceedings in relation to the divorce and property matters in China, and requiring her to take all necessary steps to secure an adjournment of the proceedings in Shanghai. I adjourned the matter for further argument on 23 October 2001 and gave the wife leave to file affirmations in reply.

9. On 11 October 2001 a draft affirmation, approved, but not signed, by the wife, was filed, exhibited to a solicitor's affirmation. The wife had now changed her solicitors. The signed affirmation has now been filed. The matter came before me again on 23 October and at the husband's request I adjourned the hearing further to 9 November 2001 in order to permit the husband to file an affirmation in reply to that of the wife and to take legal advice in China as to assertions made by the wife in her affirmation as to Chinese law. Against the objection of counsel for the wife, I extended the interim injunction to 9 November 2001.

10. The matter resumed on 9 November 2001. No further affirmations were filed by the husband, although I was asked to read, in relation to the summons for the injunction, two affirmations. Those had been filed by the husband and a Mr C, in support of a summons filed by the husband is seeking defined access over the Christmas period. The husband sought to cross-examine wife on her affirmation but, as no notice to attend for cross-examination had been given and the wife was not present, I exercised the discretion given under Order 38 r.2(3) to permit cross-examination against the husband.

11. It is the wife's evidence, unchallenged, that as she is a Chinese national, residing in China, she is obliged to obtain a decree of divorce, custody orders and property orders in respect of the Chinese property in the mainland courts. She says that the divorce decree is required because she is a Chinese national, and the other orders are required because the mainland courts will not recognise or enforce orders made by the Hong Kong courts. Pursuant to the order made on 11 September 2001 the wife sought an adjournment of the mainland proceedings but that request was declined.

12. It is said for the husband that the refusal of an adjournment in the circumstances simply demonstrates that the husband would not receive proper justice in the mainland courts. While I accept that it is surprising, to say the least, that the application to adjourn was, in the particular circumstances, refused, I cannot, from that alone, draw the inference that he would not receive proper justice if he engaged in those proceedings. He says that it is unsafe for him to go to the mainland, but that is a mere assertion and there is no evidence to substantiate the assertion. The affirmation of Mr C does not go nearly far enough to provide the necessary factual basis for the assertion.

13. With that factual background by I turn now to consider the law on an anti-suit injunction.

14. The leading authority on the question of anti-suit injunctions is Societe Nationale Industrielle Aerospatiale v Lee Kui-jak [1987] 1 AC 971 PC. The judgement identifies, at p 892, four fundamental, and uncontroversial principles which may be re-stated here:

1. The jurisdiction is to be exercised when "the ends of justice" require it;

2. Where the court decides to grant an injunction restraining proceedings in a foreign...

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