CHONG WAI KWAN v. ZHANG JIU AI AND ANOTHER

CHONG WAI KWAN v. ZHANG JIU AI AND ANOTHER

The Applicant's present case materially and directly contradicts the factual case advanced and conceded in earlier PRC proceedings; permitting the Applicant to repackage and re‑litigate those issues in Hong Kong would constitute an abuse of the Hong Kong court process and bring the administration of justice into disrepute. Accordingly the claim against the 2nd Respondent is struck out. Alternatively, even if not an abuse, the PRC is the clearly more appropriate forum and proceedings would be stayed. Costs ordered on an indemnity basis.

Citation
CHONG WAI KWAN v. ZHANG JIU AI AND ANOTHER
Parties
Applicant: Applicant; Birth Mother / Respondent: 1st Respondent; Purported Adoptive Mother / Respondent: 2nd Respondent
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
6 May 2015
Case Number
DCMP2547/2013
Procedural Posture
Civil (declaratory/adoption) / Interlocutory (strike Out and Stay Application)
Outcome
Claim against 2nd Respondent struck out for abuse of process; costs ordered on indemnity basis (order nisi); alternatively the action would have been stayed as PRC is the more appropriate forum.
Legal Topics
Res Judicata, Henderson V Henderson Principle, Declaration of Parentage, Recognition of Foreign Adoption, Costs — Indemnity
Source Language
EN
Adoption Law Civil Procedure Abuse of Process Forum Non Conveniens Recognition of Foreign Judgments Res Judicata Henderson V Henderson Principle Declaration of Parentage +2 more

Case Brief

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Parties

Applicant

Applicant

1st Respondent

Birth Mother / Respondent

2nd Respondent

Purported Adoptive Mother / Respondent

Procedural Posture

Civil (declaratory/adoption) / Interlocutory (strike Out and Stay Application)

Legal Issues

  1. 1 Whether the Applicant's proceedings constitute an abuse of process (Henderson v Henderson type)
  2. 2 Whether Hong Kong is the appropriate forum or whether proceedings should be stayed on forum non conveniens grounds
  3. 3 Whether PRC judgments are final and conclusive for the issues raised

Ratio Decidendi

The Applicant's present case materially and directly contradicts the factual case advanced and conceded in earlier PRC proceedings; permitting the Applicant to repackage and re‑litigate those issues in Hong Kong would constitute an abuse of the Hong Kong court process and bring the administration of justice into disrepute. Accordingly the claim against the 2nd Respondent is struck out. Alternatively, even if not an abuse, the PRC is the clearly more appropriate forum and proceedings would be stayed. Costs ordered on an indemnity basis.

Court Disposition

Claim against 2nd Respondent struck out for abuse of process; costs ordered on indemnity basis (order nisi); alternatively the action would have been stayed as PRC is the more appropriate forum.

Orders

  • Strike out the Applicant's action against the 2nd Respondent
  • Costs order nisi: Applicant to pay the 2nd Respondent's costs of this application on an indemnity basis to be taxed if not agreed, with certificate for Counsel; costs order to become absolute unless varied within 14 days