TY v. PTF

FCMC 9356/2019

[2026] HKFC 50

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 9356 OF 2019

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J U D G M E N T
( Discharge of dismissal order )

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1.  This is the hearing of the summons dated 9 January 2025 issued by the Respondent (“H”)  (“Discharge Summons”), by which he seeks to discharge the order made by me on 30 March 2023 dismissing the H’s application for ancillary relief[1] (“Dismissal Order”).

2.  The Dismissal Order was made due to the H’s failure to comply with an unless order also made by me at the Pre-trial Review (“PTR”)  of the ancillary relief proceedings on 10 February 2023[2] (“Unless Order”).  At the PTR, the H was absent in breach of paras. 7 of the order made by Judge CK Chan on 4 November 2022[3] (“Judge Chan’s Order”)  requiring his personal attendance. 

3.  He further failed to file his updated Form E, section 7 MPPO narrative affirmation and trial bundles as ordered pursuant to paras. 3 and 6 of the Judge Chan’s Order.

Procedural History

4.  The important incidents of the procedural history are summarised in the table below:

Date	Incident
7 August 2019	The Petitioner (“W”)  filed the Petition for divorce.
4 September 2019	The H filed a ‘Notice of Intention to Proceed with an Application for Ancillary Relief’.
17 June 2022	The First Appointment was adjourned to 9 September 2022, then refixed to 16 September 2022.  The H attended this hearing in person.
27 June 2022	Decree nisi was granted
16 September 2022	The H was absent at this hearing. Hearing adjourned to 4 November 2022 for case management. It was ordered by Judge CK Chan that unless the H attends the hearing on 4 November 2022 personally, his Ancillary Relief application would be dismissed.
4 November 2022	The H attended the case management hearing in person. Judge CK Chan fixed a PTR for 10 February 2023, and ordered, inter alia, that parties to file their respective updated Form E and section 7 MPPO narrative affirmation within 28 days, and that the H to file a trial bundle by 14 days before the next hearing, ie 27 January 2023.
10 February 2023	At PTR before me, the H was absent, and had failed to file his updated Form E, section 7 MPPO narrative affirmation and trial bundle. The Unless Order was made by me requiring the H to comply with paras. 3 and 6 of the Judge Chan’s Order by filing a Form E, section 7 MPPO narrative affirmation and the trial bundle by 4 pm on 24 February 2023, failing which his Ancillary Relief application would be dismissed and the trial fixed on 13 and 27 April 2023 be vacated. It was also separately ordered by me regarding the W’s summons for variation of the children’s custody, inter alia, that the custody hearing be adjourned to 5 July 2023 and the H do attend personally (“Custody Hearing Order”). The Unless Order and Custody Hearing Order required personal service by the W on the H.
16 March 2023	I directed the W to file an affirmation of service for the Unless Order and Custody Hearing Order.
28 March 2023	The W complied with my direction and filed an affirmation detailing her services attempts and visits to the H’s residence on 22 and 23 February 2023.
30 March 2023	After receiving and reading the W’s affirmation filed 28 March 2023, I made the Dismissal Order dismissing the H’s AR Application.
5 July 2023	The H was present at this custody hearing. Upon reading the updated social welfare report, I ordered to vary the care and control of the 2 children of the family to the W with reasonable access to the H.
20 December 2023	Decree absolute granted
5 June 2024	The H took out the Summons to rescind the decree absolute.  He withdrew the Summons with leave granted by Judge I Wong at the hearing on 13 September 2024.
9 January 2025	The H issued the Discharge Summons.

H’s brief case

5.  The main argument of the H is that the W was directed to serve the Unless Order on him by personal service but there was no effective personal service of the Unless Order.  At the night of 24 Feb 2023, the W went to the H’s resident for the service of the Unless Order and was informed by his domestic helper that he was not at home.  On 1 March 2023, the W served the Unless Order on the H via registered mail.  The H went to the W’s residence to check for what reason she visited him before and he claimed that the W did not mention the Unless Order.

6.  On 27 March 2023, the W sent the Unless Order through WhatsApp to the H.  Ms Yanan for the H contended that the W could not verify whether the H downloaded the relevant photos at material time.

7.  Ms Yanan further submitted that the Court has inherent jurisdiction to grant relief from sanction in the absence of a formal application by the H.

W’s brief case

8.  Ms Lin for the W submitted that the H must have known about the Unless Order and its contents.  Given that the Custody Hearing Order and the Unless Order were sent to him together under the same cover letter by the Court, there is no reason for him to now say that he had no knowledge of the Unless Order, while he was able to attend the custody hearing on 5 July 2023 before me.  There is nothing in his evidence to refute that he never received the Custody Hearing Order and the Unless Order from the Court.

9.  It is also not disputed that the H was present in Court before Judge CK Chan on 4 November 2022 when he was ordered to file and serve his updated Form E, section 7 MPPO narrative affirmation and trial bundles.  Up to now, he still fails to do so.  He ought to know that he was ordered to personally attend the PTR fixed on 10 February 2023, but he failed to give any or any reasonable explanation as to his non-attendance.

10.  Ms Lin for the W also submitted that the W did her best to attempt to serve the Unless Order on the H personally at his residential address and subsequently served by way of registered post.  However, the H has been actively evaded service and even mocked the W when she had attempted to inform him of the Unless Order by way of WhatsApp.  For instance, after her sending the Unless Order to the H by WhatsApp and informing him about the registered post, he responded by WhatsApp with 「不知你講咩」「你去跟法官講」「咩料呀」「哥唔識字」「D姑娘都笑你」「我身邊D女朋友，個個都笑你」[4].

11.  Concerning the relief from sanctions, such application should be made by the H within 14 days of the failure to comply under Order 2, r.4 of the RHC.  In Hannaford Finance Ltd v Fong Ka Tak Francis [2025] HKCFI 3872, the Court in refusing relief from sanctions considered the delay of the Defendant in that case, and opined that the 3-year delay was ‘gross and unexplained’ (see §§37-39).

Discussion

12.  It was not the first time that the H failed to attend the hearing as required by the Court.  At the hearing on 16 September 2022, the H failed to attend and Judge CK Chan made an order that unless the H attends the adjourned hearing on 4 November 2022 personally, his Ancillary Relief application would be dismissed.

13.  I accept that the W did not successfully serve the Unless Order on the H personally.  However, the H never denied that he did not receive the Dismissal Order from the Court.  Furthermore, he failed to explain why he did not make the application to discharge the same immediately after receiving the Dismissal Order from the Court.  Indeed, he did apply to set aside the Decree Absolute by summons on 5 June 2024 after more than a year later, and leave was granted to him to withdraw the same at the hearing on 13 September 2024.  After about another 4 months later, ie only until 9 January 2025, he then issued the Discharge Summons.  In my view, he must be guilty of inexcusable and substantial delay without explanation.

14.  The H admitted in his 2^nd affirmation at §10 that he had received WhatsApp messages from the W, but alleged that he did not accurately understand the meaning of the order and its legal consequences. Given his response to the W’s WhatsApp messages with mockery as mentioned above, I must reject his bare allegation which is entirely unreasonable.  On the other hand, I accept the W’s submission that as the H was able to attend the custody hearing on 5 July 2023 before me, he must have received the Custody Hearing Order.  As the Court sent the Custody Hearing Order and the Unless Order together under the same cover letter to him, he must have received the Unless Order too. 

15.  In the circumstances, I find that the H had full knowledge of the Unless Order and its contents.

16.  Besides, the process of the W’s many attempts to serve the Unless Order on the H has been detailed in her 2^nd affirmation, in particular her attending the H’s residence personally, sending by way of registered post and WhatsApp messages. I find that the H has actively evaded service of the Unless Order by her.

17.  Although the W was required to serve the Unless Order on the H personally but unsuccessful, I am of the view that I have the power to dispense with the personal service.

18.  Order 65, r1(1)  of Rules of High Court states that “Any document which by virtue of these rules is required to be served … need not be served personally unless the document is one which by an express provision of these rules or by order of the Court is required to be so served”.

19.  Order 65, r1(2)  states clearly that Order 65, r1(1)  shall not affect the power of the Court under any provision of these rules to dispense with the requirement for personal service. 

20.  Ms Lin for the W further relied on Chou Yi Feng v. Chou Yi Chen and Others (23/11/2002, HCA4393/2001), in which the Court considered a discretionary power to dispense with service of a copy of an order if it thinks just to do so. Ms Lin rightly submitted that the Court’s power to dispense with personal service can be exercised both in relation to mandatory and prohibitory orders, and can be exercised not only prospectively, but also retrospectively i.e. after the occurrence of the events alleged to constitute breach of the Order (see Hong Kong Civil Procedure 2025 at §45/7/7).

21.  Having carefully considered all the relevant circumstances, I exercise my discretionary power to dispense with personal service of the Unless Order on the H.

22.  Ms Yanan for the H contended that Order 65, r.4 is the appropriate application for the W to make if it is impracticable for her to serve the document personally as required, the Court may make an order for substituted service of that document. With respect, I disagree.  I consider that application for substituted service is always only one of the options but not the only option the party or the Court may choose.

23.  I also consider that it will be extremely unfair and prejudice to the W if the Discharge Summons is allowed.  It will essentially allow the H to drag these proceedings on and unjustifiably re-open these proceedings that had been going on since 2019, more than 5 years already, especially when he is still in breach of the Judge Chan’s Order requiring him to file and serve his updated Form E, section 7 MPPO narrative affirmation and the trial bundle.  The H tried to explain in his affirmation that he did not wish to confront the W in these proceedings for the sake of his children.  This explanation must be rejected.  In my view, there is no reason why he now suddenly changes his mind.

24.  He never proposes when to file and serve his updated Form E, section 7 MPPO narrative affirmation and the trial bundle.  As he failed to proceed diligently with his application for Ancillary Relief which had commenced as early as 2019, I am of the view that this is an abuse of the Court’s process.

25.  Regarding the H’s application for relief from sanctions, Ms Lin for the W quoted Re Alim Abdul [2019] HKCA 324, in which the Court of Appeal considered that it would not be in the interests of justice to allow such an application, taking into account the fact that the applicant had twice failed to comply with the directions before the Court made the unless order, and had given no explanation for his failures, even accepting the applicant’s contention that he did not receive the Court’s letter containing the relevant unless order (at §11).

26.  In the present case, the H has the history of absence from attending the court hearings twice and is guilty of inexcusable and substantial delay without explanation in issuing his application for relief from sanctions.   He is still in breach of the Judge Chan’s Order requiring him to file and serve his updated Form E, section 7 MPPO narrative affirmation and the trial bundle.  I find that his failure to comply with the Judge Chan’s Order and the Unless Order was intentional.  I therefore refuse to exercise my discretion to grant relief from sanctions.

Conclusion

27.  To sum up, the H had full knowledge of the Unless Order and its contents, and actively evaded service of the Unless Order.  I therefore exercise my discretionary power to dispense with personal service of the Unless Order on him.  Due to his guilty of inexcusable and substantial delay with no good explanation in issuing the Discharge Summons and his continuous breach of the Judge Chan’s Order, the Discharge Summons must be dismissed. 

28.  As costs shall follow event, costs of this application be paid by the Respondent to the Petitioner with certificate of counsel including all costs reserved, if any, to be taxed if not agreed.