FACV No 11 of 2016

IpsofactoJ.com: International Cases [2017] Part 6 Case 6 [CFA]


COURT OF FINAL APPEAL, HKSAR

Coram

Q.M.Y.

- vs -

G.S.S.

JUSTICE R.A.V. RIBEIRO PJ

JUSTICE ROBERT TANG PJ

JUSTICE JOSEPH FOK PJ

JUSTICE FRANK STOCK NPJ

JUSTICE MURRAY GLEESON NPJ

21 JUNE 2017


Judgment

Justice Ribeiro PJ

  1. I agree that this appeal must be allowed and agree with the answers given to the questions in respect of which leave to appeal was granted. There is no doubt that the Court had jurisdiction over the respondent, a Hong Kong permanent resident who was duly served and acknowledged service within the jurisdiction. It was bound to assume jurisdiction over the respondent unless it was persuaded that the proceedings should be stayed, on forum non conveniens principles. Having assumed jurisdiction, it would be bound to consider whether the orders sought should be made, applying substantive discretionary principles relevant to the exercise of powers under the Ordinance. It was, with respect, unnecessary and confusing to stray into considerations relevant to custody issues and the inherent jurisdiction. There was no basis for interfering with the trial judge's exercise of discretion in refusing a stay.

    Justice Tang PJ

  2. Introduction

  3. The applicant, a Mainland resident, is the mother of G, a girl, who was born on 8 August 2007. Her father is the respondent, a Hong Kong permanent resident, who was at the time and remains married with a wife and two children in Hong Kong. G was born in Hong Kong so she is a Hong Kong permanent resident by birth. Shortly after she was born, the applicant and the respondent separated[1] and G was brought back to the Mainland by her mother on 3 October 2007.[2] G has lived in Guangzhou with her since she was two years old.[3] The respondent is employed by a substantial real estate company listed in Hong Kong.[4]

  4. This appeal is concerned with s 10 of the Guardianship of Minors Ordinance, Cap 13 (“GMO”). Section 10 of the GMO was modeled on s 9 of the Guardianship of Minors Act 1971 (“1971 Act”) as amended by the Guardianship Act 1973 (“1973 Act”).[5] There is however an important difference. Under s 9 of the 1971 Act as amended, a maintenance order may only be made when the court makes an order regarding the custody of the minor. Under s 10(1) of the GMO:

  5. (1)

    The court may, on the application of either of the parents of a minor ..., make such order regarding –

    (a)

    the custody of the minor; and

    (b)

    the right of access to the minor of either of his or her parents, ....

    Under s 10(2):

    (2)

    The court may as regards a minor, on the application of a person with whom, whether by virtue of an order under subsection (1) or otherwise, custody of the minor lies at law, make in respect of the minor any one or more of the following orders –

    (a)

    an order requiring payment to the applicant by the parent .... of such lump sum [payment] ....;

    (b)

    an order requiring payment to the applicant by such parent .... of such periodical sum towards the maintenance of the minor as the court thinks reasonable ....

    Thus, under s 10 of the GMO, an order for maintenance may be made whether or not a custody order was applied for or made.

    Family Court

  6. By an Originating Summons dated 12 July 2012, the applicant applied in the Family Court for maintenance in favour of G under s 10 of the GMO against the respondent. The respondent acknowledged service on 6 August 2012. On or about 6 September 2012, the respondent commenced proceedings at the People’s Court of Siming District in Xiamen City seeking both custody and maintenance for G against the applicant. According to the respondent, the proceedings were commenced there because that was where the applicant had “registered residency status”. According to the respondent, he did not know that the applicant and G were living in Guangzhou.[6]

  7. On 24 September 2012, the father applied for an order that:

  8. (a)

    The Originating Summons be dismissed on the ground that the Court has no jurisdiction;

    (b)

    Alternatively, all further proceedings in this action be stayed on the ground of forum non [conveniens] and that the People’s Court of Siming District in Xiamen City, Fujian Province, the People’s Republic of China (‘the Siming Court’) (福建省厦門市思明區人民法院) is the more appropriate forum;

    (c)

    Alternatively, all further proceedings in this action be stayed pending the outcome of the proceedings in Mainland China.

  9. On 27 May 2013, Deputy District Judge Ivan Wong, dismissed the father’s application. His Honour was of the view that the court had jurisdiction because G was born in Hong Kong and a Chinese citizen with a right of abode in Hong Kong, and her father was a Hong Kong permanent resident and domiciled in Hong Kong.[7] On forum non conveniens, his Honour was of the view that Siming Court was not a more appropriate forum,[8] and concluded that in any event he would exercise his discretion against a stay.[9]

  10. Court of Appeal

  11. The respondent appealed. On 18 June 2015, the Court of Appeal[10] allowed his appeal and stayed the mother’s application. Cheung JA, whose judgment was agreed to by the other members of the court, said that he was prepared to proceed on the basis that the court had jurisdiction to make the maintenance order sought[11] but concluded “the Court below should have declined jurisdiction.”[12]

  12. Leave to Appeal

  13. On 29 September 2016, the Appeal Committee[13] granted leave to appeal on the following questions of law:

  14. (a)

    Does the Court have jurisdiction to entertain applications under the .... (‘GMO’), in respect of a child who is neither ordinarily resident nor present in Hong Kong?

    (b)

    If such jurisdiction exists, does the Court have a discretion (whether by reference to the Court’s inherent jurisdiction or otherwise) to decline jurisdiction other than on forum non conveniens principles?

    (c)

    If it has such a discretion, what are the criteria to be considered in deciding whether jurisdiction should be declined?

  15. Leave was also granted on the “or otherwise” ground on the basis that if the applicant succeeds in establishing jurisdiction under the GMO or inherent jurisdiction, the question of whether the judge’s dismissal of the respondent’s forum non conveniens stay application stands is a question which ought to be dealt with by the court for the effective disposal of the appeal.

  16. Discussion

  17. In the section of his judgment under “inherent jurisdiction”, Cheung JA examined in some detail English decisions on the inherent jurisdiction of the court over wardship and guardianship of children. In Re P (GE) (An Infant) [1965] Ch 568, a decision of the English Court of Appeal, a mother applied to make her son, who had been taken by his father to Israel, a ward of court under s 9 of the Law Reform (Miscellaneous Provisions) Act 1949, and for custody under the Guardianship of Infants Acts, 1886 and 1925. The father who was served out of the jurisdiction, applied inter alia, for an order that the mother’s originating summons be set aside for lack of jurisdiction. In this context, Lord Denning MR said:

  18. Those Acts give no guidance as to the geographical jurisdiction of the court; and we have to determine it on principle by reference to the inherent jurisdiction.[14]

  19. GMO contains no explicit limit on the court’s jurisdiction. Cheung JA pointed out that:

  20. Unlike the Matrimonial Causes Ordinance (Cap. 179) which restricts the right to petition for divorce in Hong Kong to those who are domiciled here or ordinarily residing here or has a substantial connection here, there is no such restriction in the GMO. [15]

  21. As for inherent jurisdiction, Cheung JA concluded that the Court of First Instance (“CFI”) enjoys similar inherent jurisdiction.[16] However, in relation to the Family Court, Cheung JA said the better view is that “the Family Court lacks such inherent jurisdiction.”[17] That does not matter because the Family Court was concerned with jurisdiction under s 10 of the GMO and not inherent jurisdiction. Inherent jurisdiction was in any event only relevant because presumably his Lordship was of the view that the exercise of the s 10 of the GMO jurisdiction should be informed by the ambit of such inherent jurisdiction.

  22. It is sufficient for present purposes to note that in England,

  23. The court has jurisdiction

    (a)

    to appoint a guardian for, or to make a custody order in respect of, a minor where at the commencement of the proceedings the minor is a British subject or owes local allegiance to the Crown by virtue of his ordinary residence or presence in England; [18]

  24. That is because as Pearson LJ explained:

  25. It is clear from the authorities that the English court has, by delegation from the Sovereign, jurisdiction to make a wardship order whenever the Sovereign as parens patriae has a quasi-parental relationship towards the infant. The infant owes a duty of allegiance and has a corresponding right to protection and therefore may be made a ward of court: Hope v Hope.[19]

  26. In this context, I note the observations of Diplock LJ in Garthwaite v Garthwaite [1964] P 356 at 387-8 regarding the two senses in which the expression “jurisdiction” of a court may be used. His Lordship said:

  27. In its narrow and strict sense, the ‘jurisdiction’ of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process by reference (1) to the subject-matter of the issue or (2) to the persons between whom the issue is joined or (3) to the kind of relief sought, or to any combination of these factors. In its wider sense it embraces also the settled practice of the court as to the way in which it will exercise its power to hear and determine issues which fall within its ‘jurisdiction’ (in the strict sense) or as to the circumstances in which it will grant a particular kind of relief which it has ‘jurisdiction’ (in the strict sense) to grant, including its settled practice to refuse to exercise such powers, or to grant such relief in particular circumstances.

    I believe Dicey and Morris[20] had in mind jurisdiction in the wider sense.

  28. Obviously, after 1997, British nationality cannot be the basis for the exercise of any inherent jurisdiction in Hong Kong. Nor, for obvious reasons, Chinese nationality. Cheung JA appeared to be of the view that inherent jurisdiction might be based on the minor’s status as a Hong Kong permanent resident. He said:

  29. 8.10

    .... in appropriate situations which involve a child who is a permanent resident of Hong Kong, the Court would step in and exercise its traditional protective role over the child even if he or she is not physically present in Hong Kong at the time of application. An example given at the appeal is a Hong Kong family of Hong Kong permanent residents living in the Mainland; the parents died, leaving the child uncared for and living alone in the Mainland; the Hong Kong grandparent of the child then applies for his custody in Hong Kong. In such a situation the Hong Kong Court would be most reluctant to decline jurisdiction simply because the child is not present in Hong Kong.

  30. In re Willoughby (An Infant) (1885) 30 Ch D 324 was concerned with an infant girl who lived with her father in Paris and had no property in England. She was a British subject by descent. Her mother had lived separately from the father since 1877 and the father had obtained an order from the French Court prohibiting the mother from visiting the infant. The father died in Paris intestate in 1884. At the time of his death, the infant was under the care of a schoolmistress in Paris. The mother applied in the French Court for access to the infant, and to remove her from the school, and to appoint guardians. That application was opposed by the infant’s grand aunt. The French Court postponed dealing with the mother’s application until it was ascertained what course the English Courts would adopt in the English proceedings where the infant applied by her next friend for guardians to be appointed of her personal estate although the infant had no property in England. The English proceedings were opposed on behalf of the mother. It was admitted on behalf of the mother for the purpose of the argument that “if the child were here the Court would appoint guardians other than the mother, and would not allow the child to remain in the mother’s custody”.[21] Kay J held, the infant being a British subject the court had undoubted jurisdiction to make the order but as to whether the jurisdiction ought to be exercised,[22] he said at 329-330:

  31. Therefore although there is no property in this country which I can lay hold of to enable me to enforce the order I may make, I think it right that the Court should in a case in which it is admitted that the mother is not a proper person to be the guardian, appoint English guardians of this English child; and I have no doubt whatever that when this Court has done that, the Courts of France will pay the respect and attention to the orders of the English Court concerning this English child which, as I have said, the English Courts would pay in the converse case with respect to the order of the French Courts as to a French child residing in this country.

  32. Kay J’s order was affirmed on appeal. Cotton LJ at 331-332 said:

  33. .... Of course it is only under extraordinary circumstances that the Court would make an order when the infant is not here, and when there is no property here, and when the persons who have the custody of the infant are not subject to the jurisdiction, as they would be if resident in this country.

  34. His Lordship went on to consider whether they ought to abstain from exercising their jurisdiction, because they cannot enforce the order and decided not to abstain saying:

  35. It may well be that this order may assist the French Court. It may well be that the French Court may give effect – though I do not say they ought to give effect – to our order, and make it operative by giving to the persons whom the Court here thinks ought to be appointed guardians power in France to deal with the infant and the property there, or it may, if it thinks fit, appoint those persons guardians. It will be entirely a question for the French Courts.”[23]

  36. Lindley LJ said:

  37. .... there is a reason for departing from the usual rule, which is against making an order which cannot be enforced. The case is very special and very unusual.[24]

  38. In England as noted, nationality and the physical presence of the minor provide the basis for jurisdiction. That is based on what one might regard as archaic notions of allegiance to and the corollary of protection by the Crown. This is not the occasion to consider how the jurisdiction might be developed in Hong Kong in relation to a minor who is entitled to permanent residence and whether protection of the parens patriae must be balanced by allegiance. In the case postulated by Cheung JA, given that the jurisdiction of the court is not expressly limited by s 10 of the GMO and since in In re Willoughby the court made the order even though it could not be enforced, it may be, though I do not decide, that in a proper case an infant’s status as a permanent resident may persuade a Hong Kong court to make a guardianship order under s 10.

  39. However, Cheung JA was of the view that in this case the judge should have declined jurisdiction because:

  40. 8.18

    My view is that the starting point is that the jurisdiction should be sparingly exercised where the child is not an ordinary resident or present here. .... I agree with the view that the Court should be extremely circumspect in assuming any jurisdiction in relation to a child who is currently physically present in some other jurisdiction simply because of her residence status here. This is certainly not a case where the welfare of the child is at risk if the Court declines to exercise jurisdiction. Although any order made [by] the Hong Kong Court may be enforced in Hong Kong where the father lives, the Court faces unfamiliar matters relevant to the child such as her living, education and medical expenses, especially in respect of her intended emigration to Canada in the future. In addition to this, there is the policy consideration of comity of nations which in the present context means the separate systems of law between the Mainland and Hong Kong. The Court below should have declined jurisdiction.

  41. It may be that Cheung JA thought that a maintenance order against a Hong Kong resident in favour of a minor who is not ordinarily resident or physically here is against the settled practice of the court to make, and that is why his Lordship said the judge ought to have declined jurisdiction. If so, with respect, I do not agree. The authorities examined by Cheung JA where similar observations had been made were concerned with guardianship of minors or their properties where the presence within the jurisdiction of the minor or property was an important consideration. As Lord Cranworth LC said in Hope v Hope in relation to an infant who at the time the jurisdiction is asked is not within the jurisdiction of the court:

  42. .... It may be that the child is placed under such circumstances that the jurisdiction of the Court cannot be exercised over it because no order I might issue could be enforced; but in that case there is not a want of jurisdiction, but a want of the power of enforcing it.[25]

  43. But here we are not concerned with an application for the custody of G. We are solely concerned with maintenance. The father is a Hong Kong resident, has assets here and enforceability can be taken for granted. Nor is comity of nations a real concern because the order is sought against a Hong Kong permanent resident.

  44. If, however, Cheung JA’s remarks were directed at the judge’s exercise of his discretion, with respect, I do not believe he was entitled to interfere. The judge had fully considered the comparative merits of proceedings in Hong Kong and in Siming albeit in the context of forum non conveniens.

  45. As the judge correctly pointed out:

  46. In DGC v SLC (nee C) [2005] 3 HKC 293, the Court of Appeal noted that the Family Courts in Hong Kong have vast experience in dealing with cases of an international dimension.[26]

    Thus, the fact that the Family Court would have to determine the order to make for maintenance for a child in the Mainland should present no difficulty. There is of course, as the judge said, the advantage of enforcement of the order in Hong Kong.[27] Such advantage is not to be underestimated in family cases where emotion can sometimes be overpowering.

  47. G was born an ex-nuptial child. Had her parents been married, the court would have had jurisdiction to make an order of maintenance against her father on her mother’s application if either parent had a substantial connection with Hong Kong.[28] Since the father has a substantial connection with Hong Kong, an order for maintenance could be made under the Matrimonial Proceedings and Property Ordinance, Cap 192 if her parents had been married. Because G was ex-nuptial, the application had to be made under s 10 of the GMO. That being the case, subject to forum non conveniens which will be considered below, I see no reason why the Court should decline to exercise its statutory jurisdiction under s 10 in a case where it would make an order in favour of a child of a married couple.[29] The Judge rightly held that he had jurisdiction to make a maintenance order under s 10 GMO and this is a case where the court might make an order.

  48. Forum non conveniens

  49. The applicable principles are settled and the learned judge[30] applied the principles stated by Cheung JA in SA v SPH [2013] 2 HKC 130 at 135F-136C. Briefly stated, the question is whether there is some other available forum having competent jurisdiction in which the action may be tried more suitably for the interests of all the parties and the ends of justice. The applicant for the stay has to establish that first, Hong Kong is not the natural or appropriate forum in the sense that it has not the most real and substantial connection with the action and second that, there is another available forum which is clearly or distinctly more appropriate than Hong Kong. Failure by the applicant to establish these matters is fatal. If the applicant is able to establish both of these 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. 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.

  50. Following such principles, the learned judge dismissed the father’s application to stay the proceedings on the ground of forum non conveniens in favour of a Mainland court.

  51. The Court of Appeal, having held that the judge should have declined jurisdiction, did not go on to consider the correctness of the learned judge’s decision on forum non conveniens. Nothing has been placed before us to make us doubt the correctness of the judge’s decision.

  52. Disposition

  53. For the above reasons and those given by Mr Justice Fok PJ and Mr Justice Gleeson NPJ in their respective judgments, I would allow the appeal and restore the order of the Family Court.

  54. The certified questions

  55. It is clear from the foregoing that the present appeal falls within a narrow compass.

  56. The first question: Does the Court have jurisdiction to entertain applications under the GMO, in respect of a child who is neither ordinarily resident nor present in Hong Kong?

    The answer to the first question is yes.

  57. The second question: If such jurisdiction exists, does the Court have a discretion (whether by reference to the Court’s inherent jurisdiction or otherwise) to decline jurisdiction other than on forum non conveniens principles?

    Here the court’s power to decline jurisdiction when faced with an application for a stay based on the ground of forum non conveniens must be distinguished from the court refusing to exercise its discretion to make or refuse to make any order in guardianship proceedings before it. In respect of the former, obviously the court should be guided by the forum non conveniens principles, though always bearing in mind in the applications of these principles that the interest of the minor is of paramount importance. My answer is no.

  58. The third question: If it has such a discretion, what are the criteria to be considered in deciding whether jurisdiction should be declined?

    The exercise of the court’s discretion must depend on the facts of the individual case. Even if it is possible to do so, which I doubt, I think it would be unwise to confine the exercise of discretion by strict criteria.

    Justice Fok PJ

  59. I have had the benefit of reading in draft the judgment of Mr Justice Tang PJ and I agree with his conclusion that the appeal should be allowed and the order of the Family Court restored. I have also read in draft the judgment of Mr Justice Gleeson NPJ and agree with it.

  60. The first question for which leave to appeal was granted raises a question of construction of section 10(2) of the Guardianship of Minors Ordinance (Cap.13) (“GMO”), specifically whether the fact that a minor in respect of whom an order for maintenance is sought is not ordinarily resident or present in Hong Kong is a bar to a court in Hong Kong making an order for maintenance under section 10(2). This question of construction arises in the context of an originating summons which on its face was issued, pursuant to section 10(2), on the application of the appellant, the mother of G (a minor) and the person with whom custody of G lay, seeking an order for maintenance of G against the respondent, as G’s father.

  61. In my judgment, section 10(2) should not be so construed. Although there is a presumption against the extra-territorial application of legislation,[31] the invocation of the court’s jurisdiction in the present case was founded on the basis that the respondent, G’s father, was physically present within the jurisdiction when he was duly served with, and acknowledged service of, the originating summons in this action seeking an order for the payment of maintenance in respect of G.

  62. Such service of the originating process in this action within the jurisdiction on the respondent was sufficient to found jurisdiction as of right. Whether the Hong Kong court would ultimately exercise jurisdiction to make the maintenance order would then depend on

    1. whether the court were to accede to an application on the part of the respondent to stay proceedings on the ground of forum non conveniens, or

    2. assuming it did not stay the proceedings, whether the court were to decline to make an order for maintenance on the merits.

    The question of jurisdiction of the court, in the (narrow or strict) sense[32] of whether it had power to hear and determine the intended application for an order for maintenance, would not arise in this case at stage (i) because, as already noted, the respondent was served within the court’s territorial jurisdiction. Nor would it arise at stage (ii) if the court did not stay the proceedings in favour of a more appropriate jurisdiction. At that latter stage, the court would consider whether to exercise its jurisdiction (in the wider sense)[33] to make an order for maintenance in respect of the minor. This does not exclude the possibility of the summary dismissal of the application on grounds related to the merits (e.g. on the basis of DNA evidence proving the respondent is not the minor’s parent).

  63. As a matter of construction of section 10(2), the fact that the minor in respect of whom a maintenance order is sought is not ordinarily resident or physically present within Hong Kong, either at the time of service of the originating process or even at the date of trial, would not preclude the Hong Kong court from making an order for maintenance.

  64. There is nothing in the wording of section 10(2) that requires the minor in respect of whom the application is made to be ordinarily resident or physically present in Hong Kong. This construction is supported, as a matter of context, by section 26 of the GMO, which expressly provides that jurisdiction under the ordinance is exercisable notwithstanding that any party to the proceedings is not domiciled in Hong Kong. It is also supported, contextually, by the fact that, unlike other family law statutes, there is no express requirement of residence or presence in Hong Kong as a condition for the exercise of jurisdiction.[34] Moreover, as a matter of purpose, the GMO requires the court, as a matter of general principle in relation to proceedings thereunder before it, to “regard the best interests of the minor as the first and paramount consideration”.[35]

  65. Thus, faced with the respondent’s application in the present case, the sole question for the Family Court was whether the application of the ordinary principles of forum non conveniens led to the conclusion that the action, commenced as of right by service of originating process within the jurisdiction, should be stayed rather than allowed to proceed on its merits. That filtering procedure would be an adequate manner in which the Hong Kong court could ensure that a claim for maintenance under section 10(2) of the GMO was properly tried before it, rather than more appropriately tried in the courts of some other jurisdiction. This would have met the concern raised in argument by the respondent that the jurisdiction of the Hong Kong courts would be too easily and inappropriately invoked in respect of a minor resident or present elsewhere, for example by service of process on a parent fleetingly in Hong Kong whilst in transit at the airport.

  66. The Family Court having exercised its discretion to decline to stay the appellant’s originating summons on the ground of forum non conveniens, and there being no proper reason to interfere with that exercise of discretion, the Court of Appeal should have dismissed the respondent’s appeal below.

  67. There was therefore no need in the present case for the Court of Appeal to consider the court’s inherent jurisdiction and, with respect, it was in error in doing so.

  68. Nor was this a case in which the appellant, G’s mother, needed to have resort to “long arm” jurisdiction in order to found jurisdiction against the respondent in Hong Kong. By service of the originating summons on the respondent in Hong Kong, jurisdiction was founded as of right. Had the respondent not been present in Hong Kong, it might have been necessary for the appellant to seek to serve the originating summons on the respondent out of the jurisdiction, for example in reliance on Order 11, rule 1(2)(b), of the Rules of the High Court (Cap.4A).[36] That would have raised a different question of construction of section 10(2) of the GMO but one that it is not necessary to address in this appeal.

  69. The first question posed is therefore to be answered in the affirmative.

  70. The second question for which leave to appeal was granted must be understood to arise in the context of the present case, namely one in which a party has been duly served within the jurisdiction with the originating process seeking an order under section 10(2) of the GMO. In that context, the question posed is to be answered in the negative.

  71. Having so answered the first and second questions, the third question for which leave to appeal was granted does not arise and need not be addressed.

    Justice Stock NPJ

  72. Jurisdiction to entertain the maintenance application in this case was established as of right by personal service on the respondent in Hong Kong. The Ordinance does not require a child in respect of whom maintenance is sought pursuant to s 10(2) to be ordinarily resident or present in Hong Kong. There was, with respect, no need for the Court of Appeal to import considerations of inherent jurisdiction and it was inappropriate to do so; and, further, there is, in my opinion, no valid basis upon which to disturb the decision of the first instance judge on the question of forum non conveniens. Accordingly, I agree that this appeal should be allowed and I agree as well with the answers which are proposed to the three questions in respect of which leave to appeal was granted.

    Justice Gleeson NPJ

  73. I agree with Mr Justice Tang PJ and Mr Justice Fok PJ that, on the true construction of the Guardianship of Minors Ordinance (Cap 13), the grant of power in s 10(2) of the Ordinance is not limited in the manner contended for by the respondent; the power is capable of being exercised in respect of a minor who is not ordinarily resident or present in Hong Kong.

  74. I also agree that, jurisdiction having been established by personal service in Hong Kong, considerations of forum non conveniens were relevant to a decision whether to exercise that jurisdiction.

  75. Where, as in this case, such considerations are invoked, and the court has concluded that they do not warrant a stay of proceedings, then the court should proceed to deal with the application on its merits.

  76. This was the approach of the primary judge, and in my view it was correct. No error was shown in the judge’s conclusion that, applying the principles relevant to an argument of forum non conveniens, Hong Kong was the appropriate forum. Nothing in the Ordinance warranted or required the application of some other and different principles as a potential basis for declining to exercise the power conferred by s 10.

  77. Reference was made by the Court of Appeal to considerations of international comity. However, this was not a case involving the potential exercise of an exorbitant jurisdiction, and the reasoning on forum non conveniens involved a finding that Hong Kong was a natural and appropriate forum.

  78. I agree that the first question should be answered in the affirmative, the second question should be answered in the negative and the third question does not arise.

    Justice Ribeiro PJ

  79. The appeal is unanimously allowed and the order of the Court of Appeal dated 18 June 2015 is set aside and the matter is remitted to the Family Court for the substantive issues to be dealt with. We make an order nisi that the respondent pay the applicant's costs here and below, with liberty to the parties to lodge written submissions as to costs within 14 days from the date of this judgment, the costs order to stand as an order absolute without further direction in default of such submissions.


[1] CA judgment, para 3.1.

[2] Presumably the mother was not entitled to stay in Hong Kong.

[3] Social Welfare Investigation Report dated 9 January 2013, para 8.

[4] The Social Welfare Investigation Report shows that although the father’s work (5 days a week) required him to spend most of his time in the Mainland, his home was in Hong Kong. Para 12.

[5] Section 3 of the Guardianship of Infants Act, 1925, enabled an order for maintenance to be made in favour of the mother where the court makes an order giving the custody to the mother under s 5 of the Guardianship of Infants Act, 1886 (“1886 Act”). The 1886 Act was repealed by the 1971 Act, s 9 of which enabled an order for maintenance of the minor against the father in favour of the mother where the court makes an order under s 9(1) giving custody of the minor to the mother. The 1973 Act equalised the rights of fathers and mothers, such that thereafter an order for maintenance under s 9(2) of the 1971 Act may be made against a father or a mother where an order for custody was made under s 9(1).

[6] Para 6, respondent’s affirmation dated 7 November 2014.

[7] Ruling, para 56.

[8] Ruling, para 94.

[9] Ruling, para 111.

[10] Lam VP, Cheung and Yuen JJA.

[11] Ruling, para 7.11.

[12] Ruling, para 8.18.

[13] FAMV 24/2016, Ribeiro, Tang and Fok PJJ.

[14] 582D.

[15] Para 7.2. To the contrary, s 26 provides that “The jurisdiction .... shall be exercisable notwithstanding that any party to the proceedings is not domiciled in Hong Kong”.

[16] Para 8.10, s 25 of the GMO provides: “Nothing in this Ordinance shall restrict or affect the jurisdiction of the Court of First Instance to appoint or remove guardians or otherwise in respect of minors.”

[17] CA judgment, para 8.14.

[18] Dicey and Morris on the Conflict of Laws, 9th edition, at p 399.

[19] In Re P (GE)(An Infant) at 587F.

[20] See para 13 above.

[21] 327, Kay J.

[22] 328.

[23] 334.

[24] 335-336.

[25] (1854) 4 De GM & G 328 at 345.

[26] Ruling, para 86.

[27] Ruling, para 110.

[28] Section 8(2) of the Matrimonial Proceedings and Property Ordinance and s 5(d) of Matrimonial Causes Ordinance, Cap 179.

[29] I ignore as irrelevant, legitimation by subsequent marriage.

[30] Ruling, para 61.

[31] Bennion on Statutory Interpretation (6th Ed.) at Section 130: “Unless the contrary intention appears, and subject to any relevant rules of private international law, an enactment is taken not to apply to foreigners and foreign matters outside the territory to which it extends.”

[32] As explained by Diplock LJ (as he then was) in Garthwaite v Garthwaite [1964] P 356 at 387-8.

[33] Ibid.

[34] See, in this context, the Matrimonial Causes Ordinance (Cap.179), sections 3, 4 and 5; the Parent and Child Ordinance (Cap.429), section 6; and the Adoption Ordinance (Cap.290), sections 5(6) and 20C(5).

[35] GMO, section 3(1).

[36] Alternatively under Order 11, rule 1(2)(b), of the Rules of the District Court (Cap.336H).


Representations

Robert Pang SC and Eugene Yim, instructed by Christine M Koo & Ip, Solicitors & Notaries LLP for the applicant (appellant).

Kenny CP Lin and Lincoln Cheung, instructed by Lo, Wong & Tsui, for the respondent (respondent).


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