Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Ls v Ad

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date05 October 2012
Subject MatterMatrimonial Causes
Judgement NumberFCMC34/2012
CourtFamily Court (Hong Kong)
FCMC34/2012 LS v. AD

FCMC 34/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 34 OF 2012

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

BETWEEN

LS Petitioner
and
AD Respondent

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

Before : HH Judge Bruno Chan in Chambers

Date of Hearing : 18 September 2012

Date of Judgment : 5 October 2012

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

J U D G M E N T

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

(Stay of Proceeding : forum non conveniens)

1. The Petitioner (Wife), a 38 years old housewife now residing with her 2 children in Beijing, issued a petition for divorce on 3rd January 2012 under these proceedings against the Respondent (Husband) on the ground of his unreasonable behaviour, and also prayed for custody care and control of their said children as well as general ancillary relief for herself and the children.

2. In her petition the Wife invoked jurisdiction of this court to deal with her divorce proceedings on the basis that the Husband, now aged 52 and the chairman of a company listed in the Hong Kong Stock Exchange, was habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of her petition, or that he had a substantial connection with Hong Kong at the date of the petition under section 3(b) or (c) of Matrimonial Causes Ordinance, Cap. 179.

3. Allegedly unaware of the Wife’s petition, the Husband commenced his own divorce proceedings in Beijing about a week later on 10th January 2012 under Case Number 04342 of 2012, and similarly sought custody of their 2 children and general ancillary relief.

4. On 12th February 2012 the Husband issued a summons in these proceedings for an order that the Wife’s petition be stayed on the ground of forum non conveniens in favour of his divorce application in Beijing.

5. At the initial hearing of that summons on 22nd February 2012, the parties agreed to undertake to the court not to proceed with either of their divorce proceedings (without prejudice to any application in relation to the children) pending the determination of the said summons by this court, and upon the Husband undertaking to pay RMB120,000 per month for the interim maintenance of the children, and to directly pay for their school fees and other expenses, the hearing was then adjourned eventually to 18th September 2012 for argument, which is the matter now before me.

6. Both parties have since filed several affirmations and submitted various legal opinions from their own experts on the relevant PRC laws, and were represented by senior counsel at the hearing, with Mr Johnny Mok SC and Mr Jeremy Chan appearing for the Husband, and Mr Horace Wang SC with Clark Wang for the Wife, but before embarking on the consideration of the parties’ respective case and evidence, it is important to first set out the relevant background.

Background

7. Both parties were born and raised in Beijing, where they also worked after leaving school, but the Husband subsequently emigrated to Canada in 1990 where he started a trading business importing various products from China for sale in Canada, and for which he had frequently travelled between the 2 countries over the years. His business had become highly successful and profitable, and after obtaining his Canadian citizenship in 1997, he returned to Beijing with about RMB500 million to explore further business opportunities.

8. There he invested heavily in a petro-chemical business in which he eventually became a major shareholder and chairman, and later successfully listed it in the Hong Kong Stock Exchange. As a result he has been running the company in Hong Kong since about 2001, but it was in Beijing when he first met the Wife who was then working in the Foreign Affairs Department. They subsequently married on 19th March 2001 in Beijing, and it would be helpful to refer to the chronology of events during the marriage exhibited to the Husband’s 1st affirmation of 17th February 2012 as “AD1-4” (P – 1 : 65-66), of which I understand there is no serious dispute from the Wife, as follows :

Date Events
19/3/2001 Parties married in Beijing.
7/2001 Husband came to Hong Kong for work, using his Canadian passport. He applied for working visa.
Soon after married and until 2002 Wife went to England for her Master Degree.
2002 Wife went back to PRC.
2003 Wife lived in Hong Kong with the Husband.
19/9/2004 Elder Child (a boy), born in Hong Kong, now aged 7.
11/2004 Wife moved back to Beijing with the elder child and stayed and lived there, except for a year between 05/2006 and 06/2007, when the elder child was staying in Hong Kong with the Husband.
15/10/2008 Younger child (a girl), born in Hong Kong, now aged 3.
12/2008 Wife took the younger child back to Beijing and have been staying and living there since then.
3/2009 Husband acquired Hong Kong permanent ID card.
26/3/2009 Husband cancelled his Chinese citizenship
3/1/2012 Wife issued Petition in Hong Kong.
10/1/2012 Husband issued divorce application in Beijing
17/1/2012 Wife’s Summons for interim custody, care and control, leave for children to continue to stay in PRC.
19/1/2012 Service of the Hong Kong Petition on the Husband.
31/1/2012 Service of the Beijing divorce paper to the Wife by the Beijing Court.
2/2/2012 Husband’s application in Beijing, with the first list of family assets, for assets division.
4/2/2012 Husband filed Form 4 indicating his intention to dispute the forum.
14/2/2012 Wife’s application in Beijing to challenge the jurisdiction of Beijing Court on the divorce case.
20/2/2012 First hearing in Beijing.
26/3/2012 First Appointment Hearing in Hong Kong.

9. The relevant chronology of course does not end in March 2012, as the Husband’s Beijing proceedings were initially rejected by the Beijing Court on 1st March 2012, and on 8th March 2012 he lodged an appeal against that decision. On 30th August 2012 his appeal was allowed by the Beijing Appellate Court which directed that his divorce application may proceed in Beijing, although it appears that the Wife intends to apply for a review or appeal against that order.

The Application

10. The basis of the Husband’s application is mainly set out in his first 2 affirmations (P1 : 45, 285) which is essentially that the parties and children are closely connected to Beijing, that it is and has always been their home, that he does not own any property in Hong Kong where he only stays in a serviced apartment, that his only connection to Hong Kong is his business and that he has never regarded it as his permanent home, and that the laws and judicial process in Beijing make it a more appropriate forum for their case whether for the divorce, custody or financial matters. Before going into details of his case, it would however be relevant to first set out the applicable legal principles.

The Applicable Principles

11. The principles governing stay of a proceeding by reason of forum non conveniens have been well established by the House of Lords in the cases of The Abidin Daver [1984] AC 398, Spiliada Maritime Corp v Cansulex Ltd (The Spiliada) [1987] AC 460, and de Dampierre v de Dampierre [1988] AC 92, which have been applied by our Court of Appeal in The Adhiguna Meranti [1987] HKLR 904] and Louvet v Louvet and Another [1990] 1 HKLR 670, and more recently in DGC v SLCneeC, CACV 37/2005 [2005] when Cheung JA summarised them as follows :

“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 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 proceeding 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.”

12. In a more recent case where the above principles were applied in the matrimonial context, SA v SPH [2011] 6 HKC 413, in which the husband applied for a stay of the wife’s divorce proceedings in Hong Kong in favour of Germany, and where the case on juridical disadvantage to her hinged on 2 nuptial agreements relied on by the husband, Poon J elaborated further in the 3-stage inquiry which the court should make in order to answer that single question referred to above at para 31 on p423 A – E when he stated :

“31. … In answering the question, the court embarks on a three-stage inquiry :

(1) Is it shown that Hong Kong is not only not the natural or appropriate forum for the trial, but that there is another available forum which is clearly or distinctly more appropriate than Hong Kong? Appropriate and natural forum means the forum with...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT