FCMC 14138 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 14138 OF 2014

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

BETWEEN

DA Petitioner
and
SY Respondent

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

Coram: His Honour Judge I Wong in Chambers (Not open to Public)

Dates of Hearing: 6 September, 3 and 7 October 2016, 27 March, 24 April and 16 May
2017
Date of Judgment: 13 July 2017

__________________

JUDGMENT
(Amendment of the Petition, Striking Out,
Substantial Connection and Forum Non Conveniens)

__________________

The Applications

1. At the beginning, there were 4 applications before me. Now there are only 3 left –
one by the petitioner wife and the other 2 by the respondent husband.

2. The first application is from the petitioner. She applies to re-amend her Amended
Petition by adding that the respondent, in addition or alternative to his “domicile” in
Hong Kong, he also had a “substantial connection” with Hong Kong.

3. I will deal with her proposed amendments in due course. Suffice for me to say at this
stage is that not only that the application has been strenuously opposed, it was initially
responded to by 3 applications from the respondent. He applied to:

1. dismiss or strike out the Amended Petition on the ground of want of

jurisdiction;

2. alternatively, to dismiss or strike out the Amended Petition for being

 frivolous, scandalous and vexatious or otherwise an abuse of court process;
and

3. The Amended Petition and all further proceedings be stayed on the ground
of forum non conveniens.

4. As said, there are now only 3 applications that call for determination by this court. It
is due to the abandonment of the respondent’s application to stay the divorce
proceedings on the ground of forum non conveniens. I will explain how this happened
below. At this juncture, it is necessary for me to set out the background to these
applications.

Background to the Applications

5. For convenience, I shall refer the petitioner wife as “P” and the respondent husband
as “R”. I believe the following factual background is not in dispute.

6. R was born and raised in the Mainland. He received his bachelor and master’s
degrees at a University in the Mainland and worked in another university for some time
before coming to Hong Kong in 1991 to pursue another master’s degree at a university
in Hong Kong which I shall refer to as “A University”. In October 1994, R left Hong
Kong for the United States to pursue a doctorate degree and stayed there for 2 ½ years.

7. In March 1997 R returned to Hong Kong to work as a Post-Doctor at A University

where he met P and subsequently married with her in Hong Kong.

8. P has a similar background. She was also born, raised and received university
education in the Mainland. She came to Hong Kong to pursue her master’s degree at the
same university as R (ie the A University). According to R, since the parties spent a lot
of time together in the same laboratory, their relationship soon developed into an
intimate one and they got married later in November 1998.

9. There is only child of the family. She is a girl, born in Hong Kong in April 1999
(“the Child”). A few months after her birth, the Child was brought back to R’s
hometown in the Mainland for care and upbringing by R’s mother. As for the parties,
they continued to stay in Hong Kong, no doubt as husband and wife.

10. In February 2000, upon completion of her study P returned to the Mainland and
started her teaching career at a university in Sichuan while R continued his career with
A University for some time before he shifted to another university in Hong Kong. R
became a Hong Kong permanent resident in 2004.

11. Whilst R was working in Hong Kong, P and the Child would visit him on two-way
permit; and R would also return to the Mainland to visit them and other members of his
family during holidays.

12. In 2001, the parties purchased a residential property in Chengdu as their family
home. In October 2010, the parties purchased another property in the suburbs of
Sichuan which was intended to be used as their family home in the future.

13. Back in Hong Kong, between 2004 and 2006 R purchased 4 flats (“the HK
Properties”) for investment purpose. The HK Properties were mostly rented out for
rental income, and R (and P as well when visiting Hong Kong) would sometimes stay at
the HK Properties if any of those became vacant.

14. Then in August 2011 R relocated to Shenzhen to take up an employment with a

university there (“S University”). Since then, R has been residing in a staff-quarter in
Shenzhen provided by S University and P has been living with the Child in Sichuan.
This is the situation up to this moment.

P’s Petition for Divorce

15. P petitioned for divorce on 24 October 2014 on the grounds of R’s unreasonable
behaviour. One of the particulars of unreasonable behaviour is R has a mistress: § (iii)
of the Particulars. She also pleaded R is domiciled in Hong Kong and resides at an
address in Sham Shui Po, one of the HK Properties. Shortly afterwards P sought and
was granted leave to amend the Petition. The amendment is not pertinent to the issues
in dispute here so it is not necessary for me to say any further. Anyway, that became the
Amended Petition as it now stands.

16. Subsequently, P applied for leave to re-amend her Petition; this is the very
application before me. In brief, what she seeks to plead is that as an alternative to R
being domiciled in Hong Kong, he also has substantial connection with Hong Kong by
which the court would have jurisdiction over the divorce proceedings by virtue of
section 3(c) of the Matrimonial Causes Ordinance (Cap 179) (“the Ordinance”). She
also sets out 6 paragraphs of facts (as annexed to the affirmation of P’s solicitors dated
28 May 2015) upon which she relies to say R has substantial connection with Hong
Kong pursuant to rule 9(9) of the Matrimonial Causes Rules (Cap 179A) (“MCR”). As
regards the particulars of unreasonable behaviour, again in brevity, she seeks to provide
more particulars on R’s extra-marital affair. As regards the particulars of unreasonable
behaviour, again in brevity, she seeks to provide more particulars on R’s extra-marital
affair.17. It seems clear to everyone that the amendments sought, if granted, would
immensely beef up P’s case. Not surprisingly it has met with strenuous resistance from
the other side by way of the first 2 applications as referred to in paragraph 3 above.

18. Further, on 9 October 2015, some 11 months after P’s petition, R commenced a
parallel divorce proceeding in the People’s Court of Wuhou District (“the PRC
court”), Chengdu, Sichuan Province of the Mainland. He considered that the PRC court
is the most appropriate forum for the determination of the parties’ dissolution of their
marriage and the ancillary relief matters. This founds his third (but now abandoned)
application.

Further Developments after the hearing of 7 October 2016 and the Respondent’s
application of 18 April 2017 to adduce new evidence

Withdrawal of the Forum Non Conveniens Application

19. The hearing of 7 October 2016 was supposed to be the last hearing on these
matters. Subsequently, when I was deliberating my decisions, incidentally and entirely
unrelated to the present case, my attention was drawn to the judgment in RKL v WL and
BKT (unreported, FCMC 14906/2014, 17 September 2015) and its appeal judgment by
the Court of Appeal (unreported, CACV 9/2016, 6 May 2016). I then examined the
court’s file and found certain steps in the proceedings that had gone entirely unnoticed
by counsel. I therefore drew counsel’s attention to the judgments and invited them to
make further submissions; as a result of which a further hearing on 27 March 2017 was
required.

20. It was rather disappointing that both counsel missed the point I would like them to
address to. In the hearing of 27 March 2007, I drew counsel’s attention to the facts that
at the time when R filed his Acknowledgement of Service (Form 4) on 25 November
2014, whilst he had indicated his intention to defend, on the same document he had also
indicated that he wished to be heard on the claims in the petition (viz costs, custody,
periodical payments, maintenance pending suit, secured periodical payments, a lump
sum and a settlement or transfer of property) and that he wished to make his own
application for access, custody and settlement or transfer of property. What is more, on
the same day, he also filed a 3-page Request for Further and Better Particulars of his
unreasonable behaviour as pleaded on the petition. Simply put, he sought particulars on
each and every unreasonable behaviour raised by P.

21. In the first instance decision of RKL v WL and BKT, supra, Deputy Judge Adriana
Tse Ching held that the petitioner wife had a substantial connection with Hong Kong
and ruled against the respondent husband’s forum challenge primarily on the ground that
the husband had submitted to the jurisdiction of Hong Kong Court, having filed a Form
4 indicating he had no intention to defend before his forum application was taken out.
On appeal, the Court of Appeal upheld the learned judge’s ruling on submission to
jurisdiction. I drew counsel’s attention to the practice and procedure on challenging
jurisdiction of the court which have been succinctly summarized by Deputy Judge
Adriana Tse Ching and for which I respectfully adopt:
28. Order 12 rule 8 provides that a defendant who wishes to challenge jurisdiction and/or
apply for a stay of the proceedings on the grounds of Forum non conveniens, he must do so
by way of a summons “within the time limited for service of a defence”. The summons
must state the grounds of the application. Under Order 12 rule 8(7), except where the
defendant makes an application in accordance with Order 12 rule 8(1) and 8(2), the
acknowledgment by a defendant of service of a writ, shall, unless the acknowledgment is
withdrawn by leave of the Court under Order 21 rule 1, be treated as a submission by the
 defendant to the jurisdiction of the Court in the proceedings.
29. The Procedure and practice for making an application for relief under rule 8(1) or (2) is
as follows:
(1) A defendant who wishes to contest the proceedings in any of the ways set out in rule
8(1), (2) or on the merits, he must give notice of intention to defend. At this stage, that
notice is neutral; it does not amount to a submission to the jurisdiction if the defendant
makes an application under rule 8.
(2) If the defendant gives notice of intention to defend, he then must choose whether to
make an application under rule 8(1), (2) or to contest the case on its merits. If he chooses to
challenge jurisdiction or forum, he must issue an application in the method prescribed by
rule 8(3) within the time limited for service of the defence.
(3) If a defendant chooses to make an application under rule 8(1) or (2), he should not
meanwhile serve a defence, or take any step to defend the case on the merits, or apply
for other primary relief; this may be construed as a submission to the jurisdiction or a
waiver of irregularity [Guangtong Li Fruit Wholesale Market Co. Ltd v Yip Lai
Fong [2003] 1370 HKCU 1]. However, service of a defence will not be so construed where
it should not be regarded realistically and fairly as a submission to jurisdiction [Miruvor
Ltd v Panama Globe Steamer Lines SA & Others [2007] HKEC 262]. It should be made
clear in the covering letter serving the defence and the defence itself that the filing and
serving of the defence is without prejudice and is merely done as a precaution with no
intention to submit to jurisdiction [ABN Amro Bank v Charles Fabrikant Fortgang [2008]
2 HKLRD 349]
(4) A defendant wishing to challenge jurisdiction should take care not to submit to the
court’s jurisdiction by taking any step in the action (for example by unqualifiedly
serving a defence [ABN Amro Bank v Charles Fabrikant Fortgang].
(emphasis added by me)

22. During the hearing of 27 March 2017 the following questions were raised for
counsel’s consideration:

1. Has R taken a step or some steps in the proceedings which in all the
circumstances amount(s) to a recognition or acceptance of the court’s
jurisdiction?

2. Was there a waiver or a submission to the jurisdiction on the part of R?

3. Is R’s Request for Further and Better Particulars of R’s unreasonable

behaviour wholly inconsistent with any intention to challenge jurisdiction or
forum?

4. Is R’s application to dismiss or strike out wholly inconsistent with any

intention to challenge jurisdiction or forum?

23. In the subsequent hearing of 24 April 2017, Mr Yim, on behalf of R, conceded that
R’s Request for Further and Better Particulars, which was filed without any
qualification, is inconsistent with the intention to challenge forum. He also conceded
that, by invoking the court’s jurisdiction to strike out the Amended Petition under Order
18, rule 19, Rules of the High Court (“RHC”) and its inherent jurisdiction, R has taken a
step in an action that may be regarded as voluntarily submitting to the jurisdiction of the
Hong Kong court. Mr Yim referred me to The Messiniaki Tolmi [1984] 1 Lloyd’s Rep
266 as the leading authority on this point.

24. I have no doubt that R has taken the correct approach. Thus, the Forum Non
Conveniens issue no longer requires a determination from this Court.

R’s Summons dated 18 April 2017 and a New Ground for Striking Out

25. The withdrawal of the forum application was not the final chapter. There was yet a
further development that have prevented these applications from drawing to a close. By
a summons dated 18 April 2017 R applied to adduce evidence on the latest development
of his Mainland divorce proceedings. He relies on this new development in order to
make out a new ground for his striking out application. The summons was unopposed as
a result of which parties exchanged further affirmations and submissions. I shall come
to this new evidence when I deal with R’s striking out application.

Factual Issues to be Determined

26. I am clear in my mind that the most crucial factual issue in dispute is whether R has
a mistress and a family in Hong Kong as alleged by P. I shall deal with this factual issue
first. I would then deal with the applications in the following sequence:

1. R’s challenge on the jurisdiction of the court, ie whether R has a

substantial connection with Hong Kong;

2. R’s application to strike out the Amended Petition on the ground that it is
frivolous, scandalous and vexatious or otherwise an abuse of court process;
and

3. P’s application to re-amend the Petition.

Whether R has a mistress and a second family in Hong Kong

27. P raised the allegation that R has a mistress and a daughter in Hong Kong for the
very first time in her affirmation dated 2 March 2015. She was able to put forward these
allegations in very concrete term that “NT” is the mistress and that R and NT have a
daughter. She also exhibited a photograph of NT’s baby daughter. P was also able to
pinpoint that this extra-marital affair started in about 2009, some 2 years before R
moved to his new job in Shenzhen. These explain R’s frequent overnight trips to Hong
Kong, in particular during weekends, frequent dining in Hong Kong and purchases of
daily and cosmetic items. There is also an allegation that R attempted to sell the Kam
Yuck Building property (one of the HK Properties) to NT at an undervalue.

28. R categorically denied all these allegations in his affirmation dated 13 April 2015.
He said he does not have a mistress or a second family in Hong Kong whether as alleged
or at all. As matter of fact, he said this twice in the same affirmation. He does not know
the identity of the baby shown on the photograph exhibited by P. The alleged affair that
he had with NT was purely out of P’s imagination. In fact, NT is one of his fellow
countryman and their relationship is like brother and sister, and there is nothing beyond
that or improper. Since NT is a very trustworthy person and resides in Hong Kong, he
has entrusted NT with the duties to attend the rental, maintenance and sundry affairs of
his HK Properties. The price for the sale of the Kam Yuck Building property was
negotiated with NT in line with the market value of the property at that time.

29. All in all, R was rebutting sound and loud all the allegations regarding his
relationship with NT.

30. In his affirmation dated 6 January 2015 (the very 1 affirmation for these
st

applications), when R referred to the sale of the Kam Yuck Building property to NT in
November 2014, it is clear that he tried to distant himself from NT by referring her as
“the purchaser”. He even produced some text messages sent by P to him and NT on 12
March 2015 (Exhibit “SYY-9”) to say that P actually knew NT is having a relationship
with another man. I have read the messages carefully; I fail to see how R could have
come to such a conclusion. It is unnecessary for me to dwell into the semantics, suffice
for me to say is that upon a plain reading of these messages, it is clear that P was
referring NT as R’s mistress.

31. P managed to turn the table around by producing, via her solicitor’s affirmation of
23 September 2015, a copy of birth certificate issued by the Hong Kong Births and
Deaths Registry. The certificate shows a baby girl was born on 12 May 2010 with her
father and mother bearing the exact English and Chinese names of R and NT
respectively. What is more, this baby daughter was given the same Chinese middle
name as the Child’s (ie P and R’s daughter).

32. In my view, any reasonable person could readily see the birth certificate could not
have been anything else but a bombshell on R. Mr Yim accepted that the authenticity of
the birth certificate was never challenged. With R’s categorical denial, one would
expect that he would have come up with some responses, not to mention explanations. I
do not wish to speculate but if P has got it entirely wrong, given R’s vociferous denial,
he should have said so or perhaps could have explained that the names appeared on the
birth certificate are different persons and thus, the whole matter was an unhappy
mistake. Yet, despite the fact that R was given various opportunities to response, he
kept his lip-sealed ever since the disclosure of the birth certificate.

33. In G v G (unreported, FCMC 8729/1995, dated 28 August 1996) where the

respondent husband in that case challenged the court’s jurisdiction on the ground that
neither of the parties to the marriage had any substantial connection with Hong Kong,
HH Judge Bruno Chan tried this jurisdictional point as a separate issue in open court. I
enquired with counsel whether it is necessary for the court to hear oral evidence in
respect of this issue. Mr Leung, on behalf of P, considered that it may not be necessary;
the court is entitled to draw adverse inference against R if there is sufficient affirmation
evidence before it. He specifically drew my attention to the fact that the birth certificate
was disclosed as early as in 2015 but R chose to remain silent. Mr Yim apparently did
not disagree with this approach. I have therefore decided to deal with with the
jurisdictional point without the parties’ oral evidence.

34. I have no doubt that even in the absence of oral evidence, the only conclusion I can
come to is that R and NT are the parents named on the birth certificate. They have a 6
years old daughter.

35. Despite his relocation to Shenzhen in August 2011 as claimed, R continued to spent
substantial time in Hong Kong. R’s in-and-out records issued by the Immigration
Department show that from August 2011 to December 2011, out of a total of 153 days,
he spent 85 days (ie 56%) in Hong Kong. In 2012, he spent 123 days (ie over 33%) in
Hong Kong; and the figures for 2013 and 2014 are 129 days (ie 35%) and 89 days (ie
24%) respectively. In January 2015 (the last month on record), he spent 17 days out of a
total of 31 (ie 55%). It is significant to note that though a few of them were one-day
return visits, a majority of them were for several days, usually from Friday to the
following Monday. This pattern is particularly obvious during the summer of the year
(ie July, August and September).

36. In his affirmation dated 2 September 2015 R explained that his frequent travels to
Hong Kong since 2011 were mostly employment-related. From 2011 to 2015, he had
access to the use of laboratory facilities at A University. He also had to receive overseas
guests and visiting scholars at the Hong Kong International Airport. He had to manage
tenancy matters of his HK Properties. In support of his assertion he produced the
confirmation letters of two professors in A University. On the frequent purchases of
daily items while he was staying in Hong Kong, R explained that the items were
purchased for him and his colleagues in the Mainland.

37. It is certainly not R’s case that his encounter with NT was a brief one and it is now a
matter in the past. In my judgment, the fact that R frequently travelled and still travels
to Hong Kong, mostly on weekends and public holidays, cannot simply be explained
away by his “employment-related” reason. In particular, the confirmation letters
produced by R contain general statements only without any dates on the use of
laboratory facilities being specified. On the evidence before me, it is hard to believe
that R’s visits to Hong Kong are not related to his extra-marital affair with NT and their
daughter. Following that analysis a clear picture has emerged - R has been maintaining
a family with NT since at least some months before the birth of their daughter. I reckon
this should be in about the second half of 2009. There is nothing before me suggesting
that R has ceased doing so.

38. I have no difficulty in coming to the conclusion that, as far as his extra marital affair
with NT is concerned, R is nothing but a bald-faced liar. There is also evidence that R
has given false statements of facts in his affirmations. R is highly educated and legally
represented, he should have been fully aware of the criminal consequences in giving
false affirmations. This matter will be referred to the Department of Justice for their
further action in due course.

(1) Does R have a Substantial Connection with Hong Kong?

Legal Principles

39. Section 3 of the Ordinance provides that:

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
either of the parties to the marriage had a substantial connection with Hong Kong at the
date of the petition or application.
(emphasis added)

40. By and large both counsel referred me to the same authorities. Thus, B v A
[2007] 4 HKC 610, ZC v CN [2014] 5 HKLRD 43, S v S [2006] 3 HKLRD 751, LCYP v
JEK (Children: Habitual Residence) [2015] 4 HKLRD 798 were cited.

41. Regarding the meaning of “substantial connection”, Hartmann J (as he then was)
said in B v A [2007] 4 HKC 610 at 613D-614G:
“17. What is capable of constituting a ‘substantial connection’ under s 3(c) is not specified
in the Ordinance. But, as Briggs J noted in Savournin v Lau Yat Fung:
“Domicile in a country is obviously a substantial connextion with that country: so may
three years ordinary residence be so considered. Paragraph (c), a substantial connextion
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]
18. As to the meaning of the phrase ‘substantial connextion’, Briggs J said that it was to be
given its ordinary meaning. It is not a term of art. In my view, that must be right. As such,
it would be wrong to burden the phrase with qualifications, for example, by specifying inter
alia that a person must ordinarily reside here for at least a year before he can be considered
to have a substantial connection with Hong Kong. An accumulation of such qualifications
would reduce the phrase to a term of art and that, I believe, would be contrary to the
legislative intent.”
…
22. It is, of course, fundamental that s 3 of the Matrimonial Causes Ordinance confers
jurisdiction in respect of divorce proceedings. In S v S, I spoke of this in the following
terms:
“While I accept that in many different respects a substantial connection may be forged in a
matter of weeks, or even days, what cannot be ignored, in my judgment, is that the
substantial connection which is contemplated in the Ordinance is one which gives
jurisdiction to the Hong Kong’s courts in respect of matrimonial causes; that is, to matters
going to the dissolution of marriage – still a profound matter in the eyes of the law – and to
matters which flow from that, for example, matters of custody and property distribution.”
23. In the circumstances, it seems to me that the factual issue of whether or not a party had
 a substantial connection with Hong Kong at the time of the institution of proceedings may
conveniently be determined by asking two questions. First did the party have a connection
with Hong Kong? Second, was that connection of sufficient substance; that is, of sufficient
significance or worth, to justify the courts of Hong Kong assuming jurisdiction in respect
of matters going to, and consequential upon, the dissolution of that party’s marriage?”

42. In ZC v CN [2014] 5 HKLRD 43, the Court of Appeal held at at 53:

“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, [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 (née Sharp) v
Griggs [1971] HKLR 299, Ta Tran Thi Thanh v Ta Van Hung [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 (unrep., CACV 62/2013, [2013] HKEC 870) (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] 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 Chinese families who have homes or businesses both here
and on 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 was said in Savournin [1971] HKLR 180, 184 (and also B v A [2008] 1 HKLRD
43, at [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.” (emphasis added)

43. The guidance given in ZC v CN has been reiterated by the Court of Appeal in LCYP
v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798 at 798 [§44]. In particular,
Kwan JA said in LCYP v JEK at §42:
“… And as stated in ZC v CN at [9.9], it will be unduly restrictive if one confines the
connecting factors solely to that of a family context (matrimonial home and the presence of
spouse and children), and while in the majority of cases family context is the focus of
enquiry and a material factor, there may be exceptional situations where a party is in
Hong Kong without the presence of his family and nonetheless has a substantial
connection here.” (emphasis added)

44. Mr Yim has helpfully summarized the legal principles which I believe are not in
dispute and for which I gratefully adopt. The legal principles are:

(1) What is statutorily required under section 3(c) of the Ordinance is not just
a “substantial connection” in any ordinary sense but a connection with Hong
Kong of substantial substance that warrants the Hong Kong Court to assume
jurisdiction to adjudicate on matters going to the dissolution of a
marriage(see B v A at §§22-23, per Hartmann J; and ZC v CN, supra at 53-
55).

(2) For the purposes of establishing (1) above, one should look at factors such
as (a) whether the parties’ matrimonial home is in Hong Kong; (b) what is
their past pattern of life; (c) do the parties regard Hong Kong as their home for
the time being; (d) do the parties choose to work in Hong Kong; (e) are the
children of the family studying in Hong Kong (see ZC v CN at §§9.5 & 9.8,
per Cheung JA).

(3) Physical presence in Hong Kong is necessary to the establishment of a

connection but because of the requirement of “substantial”, the presence must
 be real and not merely transitory (see ZC v CN at §9.4, per Cheung JA).

(4) 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 and is clearly not
conclusive (see ZC v CN at §9.8, per Cheung JA).

(5) Whilst a party may have a substantial connection with more than one
place, 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 (see ZC v CN at §9.8, per Cheung JA).

(6) It is only in exceptional circumstances that a party who is in Hong Kong

without the presence of his family will nonetheless be able to show that he has
a substantial connection here (see ZC v CN at §9.9, per Cheung JA; and LCYP
v JEK at §42, per Kwan JA).

R’s Case

45. R’s case is that before P’s petition for divorce he would return to Sichuan to stay
with P and the Child when he had time; and instead of coming to Hong Kong as before,
P and the Child would travel to Shenzhen to visit him. Therefore, according to R,
neither party could have any substantial connection with Hong Kong since August
2011. The parties’ family members from both sides at all times remain and reside in the
Mainland. Save for a brief period from December 1998 (since marriage) to February
2000 (P’s return to the Mainland), and P and the Child’s occasional visits to Hong
Kong, the parties did not conduct their marital life here. P does not have any right of
abode in Hong Kong. In any case, R moved back to the Mainland in August 2011.
Thus, by the time when P filed her petition for divorce on 24 October 2014, he had
already moved away from Hong Kong for a prolonged period of 38 months.

46. Mr Yim emphasized the facts that the parties conducted almost their entire
matrimonial life away from Hong Kong; and that was the case even during the period
when R had to remain in Hong Kong by reason of his employment. He highlighted the
facts that the Child left Hong Kong within a few months after her birth and P also left in
early 2000 immediately after completion of her study.

47. Mr Yim submitted that it is futile for P to say R continuously lived and worked in
Hong Kong for the period from 1997 to August 2011. Section 3 of the Ordinance
requires a party to have a substantial connection with Hong Kong “at the date of the
petition”. It would be wrong to focus on what happened in the past. There can be no
dispute that R had already moved to and worked in Shenzhen for 3 years and 2 months
prior to the issuance of the petition. The fact that R became a Hong Kong permanent
resident back in March 2004 which allows him to live in Hong Kong is only one factor
to be taken into account and he may not be living here on a long term basis and only
comes here occasionally: ZC v CN, at §9.8, per Cheung JA. In the present case, this
factor is at best a neutral factor.

48. Further, Mr Yim argued the fact that R has investment properties in Hong Kong or
local bank accounts does not necessarily mean he has a substantial connection with
Hong Kong. These circumstances are not uncommon in this modern age of
globalization, particularly given the close proximity of the Mainland to Hong Kong:
see ZC v CN at §11.1, per Cheung JA.

Discussion

49. R said he never has any intention of setting up a permanent home in Hong Kong.
He has always regarded and still regards Mainland as his only permanent home, whether
before or after setting up his own family with P. He also referred to the facts that he has
joined the Mainland national social security scheme in order to avail himself of the
benefits upon retirement, that he has been paying PRC tax since 2011 and that his social
circle and network were all in Shenzhen. In my view, this is beside the point. What is
in issue is whether he has a substantial connection with Hong Kong. As has been said
in LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798, at [39] per Kwan
JA, one can have a substantial connection with more than one jurisdiction at a time. It is
sufficient if P demonstrates among others that R has “a” substantial connection with
Hong Kong: see also S v S [2006] 3 HKLRD 751, at [13] per Hartmann J (as he then
was).

50. The fact that the parties have not lived here as man and wife for long is not
necessarily determinative. Section 3(c) of the Ordinance requires only either, not both,
of the parties to the marriage to have a substantial connection with Hong Kong. It will
be unduly restrictive if one confines the connecting factors solely to that of a family
context, and while the majority of cases family context is the focus of enquiry and a
material factor, there may be exceptional situations where a party is in Hong Kong
without the presence of his family and nonetheless has a substantial connection here: see
ZC v CN ( Divorce : Jurisdiction), at [9.9] and LCYP v JEK (Children: Habitual
Residence) at [42].

51. R also said since P was staying in Hong Kong on a student’s visa only and could
have difficulty in getting admitted to obstetrics ward of public hospital in Hong Kong,
so they decided to get married in order to take the benefit of his employment status. He
claimed that their decision to get married at that time was purpose-driven. I fail to see
how this could assist R. The objective facts are there was a genuine marriage and that
they maintained their home in Hong Kong up to at least February 2000 when P returned
to the Mainland upon completion of her study.

52. It is not in dispute that R took up an employment with another university in

Shenzhen in August 2011 and has been residing there for a greater part of his time.
However, in my view, once it is found that R has been maintaining a family with NT in
Hong Kong what he said about him having no reason why he should depart from his
family members and relatives in the Mainland and stay in Hong Kong should be looked
at with greatest caution, if not skepticism. I agree with Mr Leung that R’s continual
denial of his relationship with NT and his evasiveness regarding his own daughter with
NT casts significant doubt on his general credibility. Everything that R said should be
heavily scrutinised and not be taken at its face value. Even allowing for one moment
what R said is true; on his own evidence he spent about 60 days in Hong Kong for the
purpose of carrying out experiments. Thus, on his own admission, his employment
requires him to be in Hong Kong for not an insubstantial period of time.

53. R is a man with history. The fact that R has been maintaining a family with NT in
Hong Kong since about 2009 must also be seen against the objective facts that he has
the right of abode here, that he has been maintaining his investments in real properties
and stocks and bank accounts in Hong Kong, that he has been maintaining membership
in clansman’s associations in Hong Kong and that his work requires him to perform
some of his duties here. This physical presence is regular and not transitory. The
present case is an exceptional one where R is in Hong Kong without the presence of his
family with P. Taking all these facts together, I have no doubt that R had a substantial
connection with Hong Kong on the date of the petition.

(2) The Respondent’s Striking Out Application

54. I shall start by reminding the parties and their legal representatives that what we
have here are family proceedings, to be more specific, matrimonial proceedings. Family
litigation is a species of civil litigation but it has some unique features that distinguishes
itself from general civil litigation. For instance, quite unlike general civil proceedings
which normally deal with and adjudicate on the “rights” of the parties, family
proceedings deal with not only rights but also more importantly issues on a most
personal level, specifically, the “status” of the parties and one’s family or parenting
relationships with other members of the family. The most common legislations that the
Family Court has to deal with are, for instance, the Matrimonial Causes Ordinance (Cap
179), Guardianship of Minors Ordinance (Cap 13) and the Parent and Child Ordinance
(Cap 429). Further, the “family” situation of the parties could be very dynamic,
susceptible to change during and even after the conclusion of the proceedings. It is
because of these unique features that family litigation often does not bring about the
usual finality to be expected in other civil cases[1]. For this reason, in line with other
common law jurisdictions, Hong Kong has a family court specializing in matrimonial
and family proceedings. Some jurisdictions even have their own family procedure rules.

55. Matrimonial proceedings are of great consequences since they affect essentially all
aspects of parties’ family life: their marital status, the welfare of their children and their
assets[2]. The breakdown of the marriage could be emotionally taunting and stressful.
Some people may regard failure in marriage is a defeat at the most personal level or the
end of the world; and so try to avoid it if possible. Notwithstanding that a petition might
have been taken out, a petitioner may still be ambivalent in his or her stance. He or she
may still wish to have a second thought, a cooling-off period, give the spouse some time
to return, or may wish to try reconciliation. Our practice actually encourages
reconciliation; hence we have PD 15.3 (Reconciliation). The respondent may also need
time to re-examine his or her matrimonial relationship or seek professional counselling.
This is all understandable and this is what the Family Court has seen day-in and day-out.
There could be a long list of reasons why a petitioner may or may not wish to let the
other side know of the proceedings or take a particular course in the meantime. I
venture to suggest that probably it is for these reasons that parties are not required to
take out a case management summons after the close of pleadings as parties in civil
litigation are required to under Order 25, RHC. Thus, it may not be appropriate to have
authorities in other civil litigation disciplines rigidly applied to cases in family
proceedings as if the latter are no different from other civil cases.

56. It is therefore generally thought that the court would have a wider discretion when it
comes to determination of disputes in family cases (see, for instance, the observation
made by Deputy High Court Judge Carlson in Sun Ngai International Investment Ltd v
Zhang Su Hua [2009] 1 HKLRD 48, §26). One of the ready examples is the issue of
costs. It has always been said that the court has a wider discretion when it comes to
awarding costs in family proceedings.

57. Once the nature of matrimonial proceedings is put in proper perspective, I can turn
to R’s grounds.

The Initial Ground

58. The factual circumstances upon which R’s application is based are simple. He
complains that notwithstanding P took out her petition for divorce on 24 October
2014, no attempt whatsoever was made by her to have the proceedings served on him
but at the same time she caused her Form A (ie Form 25) to be registered against the HK
Properties at the Land Registry. Incidentally at the relevant time he was selling the Kam
Yuck Building property to NT, consequently he only learned of the petition for divorce
by reason of the lis pendens on 10 November 2014. It was upon his solicitors’ enquiry
on 19 November 2014 that the proceedings were served on him on 20 November 2014.

59. R also complains that although P was fully aware that he was living in Shenzhen,
she still pleaded one of the HK Properties (“the Sham Shui Po Address”) as his
residential address or address for service on her petition.

60. Mr Yim contended that in light of these factual circumstances, it is clear that P
issued these proceedings solely to prevent R from selling the HK Properties with no
genuine intention to pursue the same. He emphasized that so far P has not given any
explanation as to why the petition was only served on R upon his enquiry on 19
November 2014. He also submitted that P knew well that the address for service as
stated on the Petition was incapable of reaching R. There can be no other reason why
that was so except that she simply had no genuine intention to pursue these proceedings
and the registration of the lis pendens was purely to exert pressure on R. Mr Yim also
made reference to P’s late filing of her Form E to buttress his arguments. The petition
for divorce therefore, he argued, should be struck out or dismissed on the ground that
it is scandalous, frivolous or vexatious or otherwise an abuse of court process.

Discussion

61. I agree with Mr Leung that the court should only exercise its powers to strike out in
“plain and obvious” cases: Hong Kong Civil Procedure (2017), §18/19/4. As far as
arithmetic goes, there was only a lapse of less than one month’s time, which on any
view, cannot be considered as lengthy. During the hearing I raised the question of
whether P may still commence a fresh petition for divorce the next day if her petition
is struck out in this round. Mr Yim could not disagree with my view that, leaving R’s
other applications aside, P is entitled to do so. On this point alone, I fail to see any
useful purpose could be served by having the petition struck out.

62. Furthermore, P has given some explanations in her affirmations as to why she had
not served the proceedings at the relevant time and why she gave the Sham Shui Po
Address as the address for service. Without hearing the oral evidence of P, I do not
think it is right for me to dismiss her explanations summarily. Indeed, given the
shortness of time between the taking out of the petition for divorce and its service and
bearing in mind the unique features of matrimonial proceedings, it is not necessary for
me to reach a finding on the actual reason for the “withholding” of the service for the
purpose of the present application.

63. Lastly, assuming for one moment that all of R’s complaints were true, the question
is whether the circumstances in the present case are grave enough for the court to
exercise its power to strike out the petition. I have no doubt that given the shortness of
time between the taking out of the petition and its service, the answer is resoundingly in
the negative.

64. For these reasons, I have no doubt that this ground is devoid of any merit and ought
to be rejected.

The New Ground

R’s Case

65. As said above, evidence on the latest development of the Mainland divorce
proceedings have been adduced by the parties. What happened was that R’s divorce
proceedings in the PRC court was dismissed both in the first instance and on appeal on
14 October 2016 and 28 March 2017 respectively. The reason being that, according to
R, the PRC court was of the view that the marriage between the parties had not broken
down irretrievably. R said the PRC court came to this view because P expressly
confirmed to the PRC court that the purpose of initiating the divorce proceedings in
Hong Kong was only to exert pressure to force R to appear. He relied on a statement
made by the PRC court in its judgment that, “(P)辯稱, 在香港起訴離婚是為了逼(R)出
現 , 雙 方 仍 和 好 可 能 ” . R said this clearly shows P had no bona fide intention to
persecute her divorce proceedings in Hong Kong. She brought the present
proceedings with an improper motive.

66. Further, P also expressly confirmed to the PRC court that she was still able to re-
conciliate with R. According to the PRC court’s judgment, P was recorded to have
said, “(P)亦向法庭陳述願意與 (R)調解和好 , 雙方如加強溝通 , 互相信任 , 仍有和可
能 ” . R argued that this was entirely inconsistent with her pleading in the Amended
Petition that her marriage with R had irretrievably broken down. P has abused the
court’s process by taking a completely inconsistent position in the Mainland
proceedings. He referred me to Re Shun Tak Holding Ltd [2009] 5 HKLRD 744 where
the respondents to a winding-up petition on the ground of unfair prejudice successfully
obtained an order by the Court of First Instance to strike out the petition, inter alia, on
the ground that the petitioner’s inconsistent complaint in Hong Kong and Macau
proceedings was an abuse of process.

67. On that basis, Mr Yim submitted that the Amended Petition is scandalous, frivolous
and vexatious and otherwise an abuse of court process.

P’s Case

68. To this, P responded by saying in her affirmation of 28 April 2017 that what had
been said before the PRC court was that she did not rule out the possibility of
reconciliation with R and she was willing to consider reconciliation if certain conditions
were met. It was on that basis that the PRC court was of the view and came up with the
finding that the marriage had not been broken down irretrievably. Further, she had
expressed to the PRC court that she would only agree to reconcile with R if the division
of the family assets was properly dealt with and agreed to between the parties which in
the end did not so happen. There was not any reconciliation or attempted reconciliation
at all. She had explained to the PRC court that one of the reasons (not the sole purpose)
to commence the divorce proceedings in Hong Kong was to force R to come out.
The ultimate purpose of the divorce proceedings was of course to divorce R in
Hong Kong so that all the family assets and maintenance issues could properly and
fairly be dealt with in this jurisdiction. She reiterated that it has always been her
position that she intended to divorce R. Her statements made to the PRC court was
therefore not inconsistent or were not meant to be inconsistent with the position she has
adopted in Hong Kong, namely, that the marriage has irretrievably broken down.

Discussion

69. Plainly, heavy reliance was placed on what were said by P before the PRC court.
However, there is clearly a dispute over what had actually been said by the parties (and
what the meanings were) in the Mainland divorce proceedings. Although the
judgments by the PRC court together with a 2-page letter from R’s PRC lawyers
recording in brief what were said by the parties were adduced before the court, the
transcripts of the Mainland divorce proceedings however are not available. In the
absence of the transcript and in the absence of the parties being crossed-examined on
what they said and why they said so, I am not able to come to a conclusion in one way
or another.

70. By the present proceedings, P is seeking a divorce with R on the ground of his
unreasonable behaviour. The irretrievable breakdown of the marriage may be proved by
satisfying the court that R has behaved in such a way that P cannot reasonably be
expected to live with him. The gravest allegation as pleaded in the Amended Petition is
R’s extra-marital affair. The other allegations, in brief, are that R did not show any care
to P and the Child and that he seldom returned home. The burden is on P to prove these
allegation of facts. The words “reasonably be expected” suggest an objective test.
However, allowance will be made for sensitive as well as for the thick-skinned and the
conduct must be judged up to a point by reference to P’s capacity for endurance. Thus,
there is also a subjective element: Rayden and Jackson on Relationship Breakdown,
Finances and Children (Issue 3 March 2017), at §§6.82 – 6.83.

71. Whether P made the statements or not and if the answer is in the positive, the extent
of weight to be given and its significance in terms of whether the marriage ought to be
dissolved could not be dealt with in the present application and have to be dealt with in
trial. In my judgment, even if P is found to have made the representations or utterances
to the PRC court as alleged, this fact would only be a piece of evidence that the court
would have to give regard to when considering whether dissolution of marriage should
be granted. The court would have to investigate into why P made the utterances to
which P may or may not have any explanation. Her statements, or even taken as
admission statements, would at very least affect her credibility as a witness. The fact
that she did make such statements without any explanation acceptable to court may even
undermine her case to such an extent that she may not be able to prove the unreasonable
behaviour alleged by her or that she could not continue to live with R (the subjective
element).

72. I have to make it clear that I have no argument with Mr Yim over Re Shun Tak
Holding Ltd that he referred. I accept the legal principles stated in the judgment. Yet,
the unique nature of matrimonial proceedings has to be taken into consideration. It is not
necessary for me to repeat what I have already said in this respect. In the present case, it
is R’s case that his marriage with P has irretrievably broken down. Mr Yim, on behalf
of R, also confirmed in the hearing of 17 May 2017 that his client wants a divorce .
At the same time, Mr Leung, on behalf of P, also confirmed that his client sees the
marriage has come to an end and also wants a divorce . This has not been challenged
by Mr Yim. There is thus a meeting of minds. During the hearing I made the
observation that as the matter now stands it is not open to R to have a divorce in the
Mainland. The PRC court is not an alternative forum anymore. His forum non
conveniens application would be dead anyway. Mr Yim fairly accepted this would be
the case. Yet, he also made the point that if the present proceedings are being struck
out, this might constitute a change in the circumstances that allows R to renew his legal
action in the Mainland but he conceded that in the absence of any expert legal opinion
he could not say further.

73. It is glaringly apparent that R wants desperately that his divorce is to be

determined in the Mainland while P, with equal sentiment, wants to have it dealt with in
Hong Kong. Nevertheless, in my view, since R accepted that he has already submitted to
the jurisdiction of this court in the present proceedings and further that the Mainland
route is a cul-de-sac for him now, there is little point for him to insist on striking out the
petition and then allowing him to venturing into an uncharted waters - he may or may
not be able to start another action in the Mainland. On the other hand, it is always open
to him to file a cross-petition to pursue a divorce on his own ground. Practically
speaking, if both parties see their marriage has long come to an end, I fail to see how
the divorce petition (or cross-petition) would possibly become a full-blown defended
petition. I cannot help thinking that his insistence to strike out is nothing but a strategic
move.

74. I have already made the point that the court would have a wider discretion when it
comes to determination of disputes in family cases. Whether to strike the petition out is
an exercise of discretion on the part of the court; such discretion must of course be
exercised judicially. I keep in mind that I should give due regard to the underlying
objectives as set out in Order 1A, RHC. The relevant ones being to ensure that a case is
dealt with as expeditiously as is reasonably practicable and to promote a sense of
reasonable proportion and procedural economy in the conduct of proceedings: Order
1A, rule 1(b) and (c), RHC. If the petition is struck out today, I can foresee that this
would be followed immediately by another petition. Then depending on whether the
Mainland route could be revived or not, the parties may have to entangle themselves
further in another round of satellite litigation in relation to forum, resulting in excess
litigation cost. Given that both parties have seen their marriage has come to an end and
that the case has dragged on for over 2 years, I am of the view that the parties should
move on to wind-up their affairs as soon as possible.
75. For these reasons, I am not prepared to strike out the petition.

The Petitioner’s Application to Re-Amend the Petition

76. Pursuant to rule 16(2) of MCR a petition which has been served may be amended
with leave of the court. RHC are applicable to matrimonial proceedings by virtue of
Rule 3 of MCR. Pursuant to Order 20, rule 5(1), RHC, the court has the power to allow
any party at any stage of the proceedings to amend his pleadings on such terms as to
costs or otherwise as may be just and in such manner (if any) as it may direct.
Additionally, the court may at any stage of the proceedings order a pleading or any other
document in the proceedings to be amended if it is of the opinion that the order is
necessary either for disposing fairly of the cause or matter or for saving costs: Order 20,
rule 8(1) & (1A), RHC. Para 20/8/6 of the Hong Kong Civil Procedure (2017) has this
to say on amendment:
“It is a guiding principle of cardinal importance on the question of amendment that,
generally speaking, all such amendments ought to be made “for the purpose of determining
the real question in controversy between the parties to any proceedings or of correcting any
defect or error in any proceedings” (see, per Jenkins L.J. in G. L. Baker Ltd v. Medway
Building & Supplies Ltd [1958] 1W.L.R. 1216 at 1231; [1958] 3 All E.R. 540 at 546).

77. At the heart of P’s application for amendment is whether R has been maintaining a
family with NT in Hong Kong. If the answer is in the affirmative, P argues that R would
have a substantial connection with Hong Kong thereby giving the court jurisdiction to
deal with P’s divorce petition. The amendment, if granted, would also provide P with
additional particulars of R’s unreasonable behaviour.

78. Both parties have not advanced serious arguments regarding this application. R’s
opposition seemed to have premised on the “substantial connection” argument only.
With the conclusion that I have come to regarding the factual issues in dispute, I have no
doubt that the amendment is necessary for disposing fairly of the cause or matter and
has to be allowed and I so order.

Orders

79. I dismiss the respondent’s summons dated 6 January 2015 and amended on 9
November 2015.

80. As for the petitioner’s application to re-amend the Petition, I give the following
orders:

(1) Leave for the petitioner to re-amend and file the Petition as per a draft
annexed to the Affirmation of Lau Suet Yin Angela dated 28 May 2015 within
14 days;

(2) Service of the Re-amended Petition on the respondent be dispensed with;

and
 (3) Leave for the respondent to file and serve an Answer to the Re-amended
Petition within 21 days thereafter.

Costs

81. I now deal with costs.

The Petitioner’s summons to re-amend the Petition

82. The petitioner agrees the costs of and occasioned by the amendments, including the
application be to respondent. This is a fair position to be taken. I would give an order
accordingly, with counsel certificate.

The Respondent’s Summons

83. Substantial time and efforts were wasted on obtaining expert reports in relation to
the Forum Non Conveniens application. It was partly due to the objection raised by the
respondent (which was valid) as regards the impartiality of the petitioner’s PRC expert
as a result of which she had to obtain another report prepared by a second expert. Yet,
all these time and costs could have been avoided if the parties (especially the respondent
who is the applicant) had fully informed themselves of the legal principles relevant to
Order 12, rule 8, RHC. In this regard, it strikes me that the summons did not even cite
the relevant rules at its margin. Though there is no strict requirement that the relevant
rules must be cited, I always regard it a good practice to do so – this would inform all
parties the basis (and the legal principles) upon which the application is taken out.

84. I see no reason why the costs should not follow the event. I give an order that the
respondent is to pay the petitioner the costs of his summons, including costs reserved,
with counsel certificate. Such costs to be taxed if not agreed.

85. The time spent during argument on the petitioner’s amendment summons was
minimum. As the presiding judge, I am in a better position than the taxing master to
apportion the time spent. For the purpose of taxation, I would apportion it as 1/10 of the
time of the hearing. The rests are on the respondent’s summons.

86. All the costs orders are by way of order nisi.

Case Management

87. Lastly, it is incumbent upon the court to conduct active case management. I direct
that the parties should approach the listing clerk for fixing a First Appointment hearing
within 14 days.

( I. Wong )
 District Judge

Representation

Mr Eric Leung, instructed by Angela Lau Law Office, solicitors for the petitioner

Mr Eugene Yim, instructed by Li & Partners, solicitors for the respondent

[1] Chief Justice’s Working Party on Family Procedure Rules, Review of Family
Procedure Rules Interim Report and Consultative Paper (2014), §§ 21.1 – 21.5

[2] Review of Family Procedure Rules Interim Report and Consultation Paper, supra,
§264