WYT v. LC

FCJA 3034/2017

[2021] HKFC128

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

JOINT APPLICATION

NO. 3034 OF 2017

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__________________________

JUDGMENT
( Rescission of Decree Nisi under
Section 15C Matrimonial Causes Ordinance (Cap 179) )

__________________________

1.  This is a trial on whether the decree nisi of divorce should be rescinded upon the application of the 2^nd applicant wife pursuant to section 15C(2) of the Matrimonial Causes Ordinance (Cap 179) (“MCO”). 

2.  In this judgment I shall, for ease of reference, refer to the 1^st applicant and the 2^nd applicant as “the husband” and “the wife” respectively.

Background to the Application

3.  The background to this application can be briefly stated as follow.

4.  The husband is 76 years old and the wife 65. 

5.  The husband is a retired merchant and the wife is a retired senior medical doctor at a hospital in Shenzhen of the Mainland.  She claimed to have earned herself some fame when a paraplegic person who was classified as a vegetative patient improved markedly under her care.

6.  The parties met in 2003 and were married in April 2009.  This is a second marriage for both of them. 

7.  Each of them has an adult daughter from the previous marriage.  I need to mention them because though they are not witnesses in this case, they feature in the parties’ evidence.

8.  In about 2007, the wife retired from her profession. Her position before retirement was the deputy consultant doctor of a hospital in Shenzhen.

9.  In about 2014, the wife was granted a One-Way Permit to reside in Hong Kong.  From about early 2016 to May 2017, she worked in some elderly homes.

10.  Unfortunately, the marriage did not work out.  In about 19 June 2017, the parties contemplated divorce; they managed to reach an agreement which was reduced in part into a Chinese written agreement dated 19 June 2017 (“the Agreement”).  The Agreement is in the husband’s handwriting and signed by both parties. 

11.  I think it is useful to set out the provisions of the Agreement in full:

王XX  男73歲  身份證 XXXX

劉XX  女 62歲  身份證XXXX

雙方因感情破裂,無法挽救,已經由2016年1月1 日至今分居且冷靜思考,決定離婚,雙方無任何爭執,平和結束這段婚姻.

附帶條件,簽定之日,雙方終止任何爭執(包括打官司)男方願以港幣貳拾萬補償女方，絕不後悔！

律師簽訂離婚協議後，經法庭有離婚結果，一個星期內還清貳拾萬。

專此

呈上

（甲）     王XX  （簽名）    19/6

- 17

（乙）    劉XX  （簽名）    19/6

12.  Thus, the essential terms of the Agreement are:

(1)  That the marriage broke down irretrievably, the parties have separated since 1 January 2016 and that they have decided jointly to divorce;

(2)  The parties agreed that on the day the Agreement was signed to cease any disputes (including litigation), and further that the husband agreed to pay $200,000 to the wife as compensation;

(3)  The said payment should be made “within one week upon the finalization of the divorce”.

13.  Additionally, before the parties went to the husband’s solicitors, referred to as “TL & Co” in this Judgment, for signing the divorce papers on 22 June 2017, the husband had written a document, referred to by the wife as “the Written Promise””, and had it signed by him on both sides of the paper.  There are some disputes as to when this Written Promise was made which I shall deal with below.  At this juncture, again, it is useful to set out the provisions on both sides below. The format of the Written Promise on both sides is reproduced as close to the original as possible. The front page was dated 19 June and signed by the husband.  It states:

律師樓

除了  弍拾元处理完，其餘伍拾萬自己另行处理

给 第一次是订好律師紙，還弍拾萬，第二次是法庭判決離婚給叁拾元

此据

王XX （簽名）19/6

14.  According to this Written Promise, apart from the $200,000, the husband would also pay the wife an additional $500,000 by two instalments:

(1)  The first instalment of $200,000 to be paid upon the parties signing the relevant documents at the solicitors’ office; and

(2)  The second instalment of $300,000 to be paid upon the grant of a divorce decree.

15.  The reverse side of the paper was undated and purportedly contained 2 signatures of the husband.  It states,

王XX （簽名） ，

我會幫你做任何的事。

王XX （簽名）

（包括申請綜援及公屋）

隨便你住多久 ！

16.  Thus the first sentence, “I will help you to do anything” (“我會幫你做任何的事”) appears with the husband’s signature next to it.

17.  The second sentence literally means “(Including applying for CSSA and public housing), You are free to stay as long as you wish!” （包括申請綜援及公屋隨便你住多久）.  

18.  It is important to point out at this stage that at the beginning of the trial the wife produced for the very first time the original of the Written Promise. Thereupon, it was found that there was an erasure covering some words by correction fluid following “any” (任何) with the husband’s signature on top of such erasure. It would appear that the signature was to endorse the erasure.  At my suggestion, when the Written Promise was put against the light of a torch, the words obliterated by the correction fluid could clearly been seen; they were “不違法”, literally means “not unlawful”.  It was then revealed that the whole sentence in its original form was, “我會幫你做任何不違法的事”, literally means “I will help you to do anything not unlawful”.  The erasure became a subject of investigation at trial.

19.  On about 22 June 2017, the parties attended TL & Co, which was retained by the husband, for the signing of the divorce papers including the Joint Application for Divorce and a consent summons (“the Consent Summons”).  The documents are, I would say, standard divorce papers.  They are in Chinese and signed by both parties.  At that time, they were attended to by a legal executive Mr Tang who is a witness in this trial.

20.  The Consent Summons stated,

“… 第一申請人及第二申請人的共同申請所作出要求法庭在雙方同意的情況下頒布以下命令： -

根據婚姻訴訟條例、婚姻法律程序與財產條例, 已婚者地位條例及所有有關之條例等所給予第一申請人及第二申請人可對任何一方作出附屬濟助之申索下, 一經第一申請人及第二申請人承認(同意)及接受在本文內之條款是為對雙方所有附屬濟助及贍養費申索所作出之完滿及最終的和解

第一申請人及第二申請人雙方均知悉及向另一方及法庭確認,雙方均同意免除雙方經濟狀況的披露及查閱

在雙方同意的情況下作以下命令: -

(1) 第一申請人須於絶對判令頒佈後的一星期內向第二申請人支付港幣貳拾萬元為整筆付款之贍養費;

(2) 不就此申請作出任何訟費命令。

日期: 2017 年6月26日

                                                   司法常務官

雙方均同意上述的命令條款

（簽名）王XX                           （簽名）劉XX

簽署                                             簽署

第一申請人王XX                       第二申請人劉XX

 

（簽名）________________

第一申請人之代表律師行

XXX律師行

本人為本案之第二申請人劉XX,現確認第一申請人代表律師行曾向本人清楚解釋而本人亦明白本同意傳票內容及本人有權就簽署本同意僡票尋求獨立法律意見。本人自行決定同意及確認此傳票內容條款和在此簽署確立。

 

（簽名）劉XX

第二申請人劉XX ”

21.  According to the provisions, the parties agreed to have a court order to be made in terms of the Consent Summons in full and final settlement of their respective claims for ancillary relief, and that the husband agreed to pay the wife $200,000 within 7 days of the decree absolute with no order as to costs.  These major terms are apparently those of the Agreement.

22.  Apart from the Joint Application for Divorce and the Consent Summons, the parties also signed the following documents, which were all in Chinese:

(1)  The Statement of Truth accompanying the Joint Application;

(2)  Application for Direction for Trial; and

(3)  Form 21(5) of the Matrimonial Causes Rules (applicable to joint applications made pursuant to section 11B(2)(a) of the Matrimonial Causes Ordinance (Cap 179) on the ground of one-year separation).

23.  The following day, ie 23 June 2017, the parties went to a branch of the Bank of China in Shenzhen, where the husband transferred RMB 300,000 to the account of the wife’s daughter (equivalent to approximately $350,000).  This sum was part of the $500,000 that the husband had agreed to pay the wife under the Written Promise, additional to the $200,000 paid to the wife under the Consent Summons. Although the Written Promise stated that the first instalment was to be $200,000 and the second instalment $300,000, nothing turns on the fact that the husband paid $300,000 first.

24.  On 26 June 2017, TL & Co filed the Joint Application pursuant to section 11B(2)(a) of MCO and the lodged the necessary papers including the Consent Summons.  These are the present proceedings. 

25.  The Joint Application pleaded that the parties separated from each other as from 1 January 2016.

26.  The proceedings were uneventful and the decree nisi was granted on 22 August 2017.  On the same date, a consent order (“the Consent Order”) in terms of the Consent Summons referred to in [20] was made by this court.

27.  On 26 October 2017 the husband applied for the decree nisi to be made absolute.

28.  In about 1 November 2017, the parties attended the husband’s bank where the husband withdrew and paid the wife $200,000.

29.  However, on 3 November 2017 the wife issued a summons (which was dated 1 November 2017) to stay the proceedings.  The application was heard before Deputy District Judge J Chow who on 30 October 2018 granted leave for the wife to withdraw her application with costs to be borne by her.

30.  A couple of months later on 19 April 2018, the wife took out a Writ in the Court of First Instance of the High Court (“the High Court Action”) seeking to set aside the Consent Order and leave for her application for ancillary relief to proceed as if the Consent Summons had never been signed. 

31.  Her Statement of Claim in the High Court Action pleaded that when the wife attended the solicitors’ firm, she was asked to sign on some documents, the details of which she paid very little attention to and cannot now recall, save that she was told and believe that she was signing the necessary documents in order to achieve a divorce: §5.

32.  She also pleaded that she had no recollection of having signed the Consent Summons but she believed that the Consent Summons was amongst the documents signed by her at TL & Co: §10.  She had no knowledge of the contents or purpose of the Consent Summons which no one had ever explained to her.  Had she been told or asked to execute the Consent Summons and known about its contents she would have refused. There is no reason why she would have agreed to settle her claim for ancillary relief for $200,000 when the husband at all material times have and had possessed two properties in Hong Kong with a combined value of over $10 million and no mortgage: §11(a) & (c).

33.  On 19 or 20 April 2018, when the wife returned home she was locked out.

34.  It was against this background that on 11 June 2018, the wife took out the present application seeking the following reliefs:

1.  The decree nisi be rescinded; and

2.  All orders made in the proceedings be set aside.

35.  Obviously, in respect of paragraph 2, the wife’s eyes must have been on the Consent Order rather than on the rescission of the decree nisi.  Indeed, it is clear that the wife has always wanted a divorce. What she is not happy about is the Consent Order.  If it is set aside, it would mean it is open to her to make an application for ancillary relief for which, as a matter of fact, she has already filed her Form A on 11 December 2017. That application has been adjourned pending the disposal of the present application.

36.  On 12 June 2018 the wife withdrew the High Court Action. 

The Law

37.  The wife relies upon section 15C(2) of MCO which reads as follows,

(2)  Where a court on granting a decree nisi of divorce is satisfied in accordance with the requirement of section 11B(2)(a) it may, on an application’s being made in that behalf by either party to the marriage, at any time before the decree is made absolute, rescind the decree if it is satisfied by that party that he or she has been misled by the other party, whether intentionally or unintentionally, about any matter which he or she took into account when deciding to make the application for divorce.

(emphasis added)

38.  The said sub-section (2), which applies to a joint application for divorce, is parallel to sub-section (1) that applies to a petition for divorce.  Both provisions are essentially worded on same terms and their English equivalence is section 10(1) of the Matrimonial Causes Act 1973 (“MCA”) which owes its origin to section 5 of the Divorce Reform Act 1969.

39.  It should be noted that apart from section 15C of MCO, the other provision that may be open to an applicant (or to a respondent in the case of petition for divorce) for the rescission of a decree nisi is section 17(2) of MCO.  An application for re-hearing of the cause may also be made pursuant to Rule 55 of the Matrimonial Causes Rules, Cap 179A.  Section 17(2) of MCO’s English equivalence is section 9(2) of MCA while our Rule 55 owes its origin to Rule 36(1) of the English Matrimonial Causes Rules 1957 which later became Rule 2.42 of the Family Proceedings Rules 1991. The re-hearing procedure is not reproduced in the current Family Procedure Rules 2010 (UK) though Rule 4.1(6) provides that the power of the court under the Family Procedure Rules 2010 to make an order includes the power to vary or revoke the order. 

40.  As I have not had the benefit of counsel’s submissions on how these provisions relate to one another and under what circumstances which provision is more appropriate than the others, I shall refrain from going into this subject.

41.  Turning back to section 15C(2), it appears that there is an absence of case law, whether in Hong Kong or in England, that is applicable to the present situation.

42.  Mr Chan, who has been acting for the wife on a pro bono basis, submitted that the section is written in plain enough language which requires no semantic gymnast. The question to be decided is whether the wife was misled by the husband, whether intentionally or unintentionally, about any matter which she took into account when deciding to make the joint application for divorce together with him.   

43.  He drew the court’s attention to the English case of Beales v Beales [1970] Fam 2010 where Sir George Baker P said at 219B-C,

Section 5 of the Divorce Reform Act 1969 gives the court power to rescind a decree if the petitioner misled the respondent about any matter which the respondent took into account in deciding to consent. If a husband took into account, when giving consent, that his wife would not ask for costs and she subsequently obtains an order for costs against him, he could, I think, apply to have the decree and order set aside.

In my opinion, the Act has provided for divorce in circumstances which enable a respondent to refuse consent except upon the terms that he is not liable for costs, and a court cannot then refuse a decree in an attempt to make him pay costs, or order him to pay costs when his consent is thus qualified.

44.  It was submitted by Mr Chan that “any matter” includes financial consideration.  The wife therefore may rely upon this provision to have the decree nisi rescinded.

45.  Ms Cheung, acting on behalf of the husband, did not take issue with Mr Chan’s contention that under section 15C, a decree nisi may be set aside upon the applicant demonstrating he or she had been misled over any question, including that of financial relief. 

46.  It was submitted by Ms Cheung that Section 15C is not cast in mandatory terms – the court has the power to rescind a decree nisi, but it is not necessarily required to exercise such a power in circumstances even where an applicant satisfies the relevant requirements.  The wording of section 15C – a decree nisi may (and not “shall”) be rescinded upon a finding that one party had been misled – suggests that rescission is not something that the court automatically must order following a finding that one party had been misled, but that the court only has the power to do so in such circumstances.  I agree.

47.  It was emphasized by Ms Cheung that one major relevant consideration in the present case is that the wife’s position has consistently been that she still wishes to have a divorce.  In fact, both the husband and the wife all along wish to have a divorce.  She argued that since both parties wish to have a divorce, no useful purpose can be served to seek to rescind the decree nisi. Thus, even if the wife successfully satisfies the court that she was misled into making the joint application for divorce, given her concession that she still wants to dissolve the marriage (albeit on better financial terms), the court should refuse to rescind the decree nisi.

48.  It was pointed out by Ms Cheung that this is a case where both parties are in agreement that the marriage is over and they wish to have it dissolved, albeit one party (ie the wife) is unhappy with the terms of the financial settlement order previously agreed. 

49.  It follows that, argued by Ms Cheung, it is procedurally wrong to use section 15C to have the Consent Order set aside “via the back door”.  In any event, on a plain reading of the section, it does not appear to give power to the court to set aside any ancillary orders such as the Consent Order.

50.  Ms Cheung submitted it is trite law that where a party seeks to set aside or challenge a judgment or order that finally disposed of the ancillary relief between the parties on grounds of fraud or mistake – and the Consent Order in the present case is such an order - the only way of doing so is either (a) by appeal to a higher court, or (b) way of fresh action to set the judgment or order aside : de Lasala v de Lasala [1980] AC 546 (Privy Council);  Lui Sik-Kuen v Lee Suk-Ling [1992] 2 HKLR 371; Wong Oi Han v Sin Wai Chung [2012] 3 HKLRD 142; and WTM v LNCA, FCMC 14571/2010 (date of judgment: 30 March 2012); [2012] 4 HKC 455.   

51.  The law regarding the setting aside of a consent order on ancillary relief as set out by Ms Cheung is certainly correct but it should be noted that Practice Direction SL10.3 now provides that an application for setting aside a consent order on ancillary relief shall be made by way of a fresh action in the Court of First Instance or, where the District Court has the jurisdiction under Part IV of the District Court Ordinance (Cap 336), in the District Court: §4.

52.  Be that as it may, Ms Cheung’s argument remains to be that the proper procedure open to the wife is to have the Consent Order set aside by way of a fresh action but not in reliance upon an application under Section 15C.

53.  Mr Chan took a different view.  He relied upon section 25(1) of the Matrimonial Proceedings and Property Ordinance (Cap 192) which reads,

Where a petition or joint application for divorce or a petition for nullity of marriage or judicial separation has been presented or made, then, subject to subsection (2), proceedings under section 3, 4, 5, 6 or 6A may be begun, subject to and in accordance with rules of court, at any time after the presentation of the petition or the making of the application; but—

(a)  no order under section 4, 6 or 6A shall be made unless a decree nisi of divorce or of nullity of marriage or a decree of judicial separation, as the case may be, has been granted;

(b)  without prejudice to the power to give a direction under section 26, no such order made on or after granting a decree nisi of divorce or of nullity of marriage, and no settlement made in pursuance of such an order, shall take effect unless the decree has been made absolute.

54.  On that basis, it is Mr Chan’s argument that if the decree nisi is rescinded pursuant to Section 15C, all the orders made in the proceedings must be voided, because they are made as part of the proceedings and not independently. 

55.  At closing, counsel’s attention was drawn to the following paragraph in Rayden & Jackson on Divorce and Family Matters,

Statutory jurisdiction

[11.5] The jurisdiction is a statutory one, and the court's powers are confined thereby, whether the order is made by consent or otherwise. The power to make orders in divorce and nullity suits for financial provision, property adjustment and pension sharing arises on granting a decree nisi or at any time thereafter, and the power to make orders for financial provision and property adjustment in a judicial separation suit arises on the decree of judicial separation. However, there is no power to make a pension sharing order in a judicial separation suit. In the case of divorce and nullity there is no jurisdiction, even with consent, to make an order before decree nisi. If such an order is made before decree nisi by a court of competent jurisdiction it is good on its face and must be treated as a valid order until it has been set aside; the error cannot be saved by the slip rule, or by exercise of the inherent jurisdiction of the court: there is no alternative but to set the order aside. The fact that the order has been acted upon is irrelevant; jurisdiction cannot be conferred by consent or estoppel. Any person affected by such an order is entitled as of right to have it set aside. In the event that, through inadvertence, a consent order is approved before decree nisi and made an order subsequent to decree nisi, but the date of the order is said to be the date of the approval as opposed to date the order was made, the error can be corrected under the slip rule. The issue has been considered by King J in JP v NP (Financial Remedies: Costs) and Cobb J in K v K (Financial Remedy: Final Order Prior to Decree Nisi). Cobb J summarises the law, and the interaction with the power under FPR 2010, 29.15, by concluding that the court does have the power to direct that a judgment takes effect after a later date, which can be after the decree nisi, but an order which purports to have effect prior to the decree nisi is a nullity.

56.  The learned authors cited Isaacs v Robertson [1985] 1 AC 97, a judgment by the Privy Council, as the authority that an order made without jurisdiction is still good on its face and must be treated as a valid order until it has been set aside.  On this authority, I incline to take the view that it should also be the case in respect of an order which, when made, was regular and was empowered with the necessary jurisdiction.  My view therefore is that (and this has been agreed to by counsel) notwithstanding the decree nisi has been rescinded, an application for the setting aside of the order on ancillary relief is still required, though it has been said that it is a matter as of right to have the order set aside.

The Wife’s Case

57.  The wife alleged that she was misled by the husband into consenting to divorce in two aspects. 

58.  First, according to the Written Promise the husband clearly promised her that she would be permitted to stay in the husband’s home until she is given public housing and CSSA (ie Comprehensive Social Security Assistance).  In breach of the promise, he expelled her from home on 20 April 2018. 

59.  Secondly, the wife did not know that a Consent Summons had been executed.  The contents were never explained to her.  If she had known that TL & Co represented the husband only and had the content of the Consent Summons been explained to her, she would have insisted on seeking independent legal advice on her rights and entitlements.  She had been misled into signing the Consent Summons whereby she accepted the sum of $200,000 in full and final settlement of any claims for ancillary relief she may have against the husband.    

60.  The $700,000 payable by the husband was merely “compensation” to her in relation to two matters which she said the husband was sorry to her for:

(1)  An incident where she fell from the roof of her property in Shenzhen – the wife claimed the parties had concocted a plan whereby she would be lowered from the roof with a rope, which had snapped causing her to fall and sustain serious injuries; and

(2)  The sale of her own property in Shenzhen – which she claimed was at the exhortation of the husband who at the time promised to purchase another property in their joint names. 

61.  I shall refer to these incidents as “the Falling Incident” and “the Shenzhen Sale” respectively. 

62.  By way of preliminary observation, it should be noted that the wife’s case is significantly different from what she pleaded in the High Court Action where her case was one of ignorance.  There was not a single reference to the misleading event in her Statement of Claim.

The Husband’s Case

63.  The wife’s allegations are disputed by the husband, whose case is, in short, that:

(1)  The divorce settlement had been negotiated between the two of them on a number of occasions before they reached an agreement;

(2)  The wife knew exactly what she was signing as all the documents were in Chinese, especially when she had examined and requested amendments to the same at TL & Co’s office on 22 June 2017;

(3)  The wife asked for and received an additional sum of over $500,000 paid either to her daughter or to her directly pursuant to the Written Promise; that is to say the bargain was the husband agreed to pay a sum of $700,000; and

(4)  The husband did not have to apologize to or compensate the wife for her injuries as he did not cause them (in this regard he disputed the wife’s account of the accident that she claimed he was involved); likewise, he did not have to apologize to or compensate the wife for her selling her own property in Shenzhen, which was her own decision.

Burden of Proof

64.  The burden of proof is on the wife to prove that she was misled by the husband in the ways alleged.  In terms of sequence of events it is logical to deal with the second ground first.

The Second Ground

65.  It is common ground that the wife left the husband’s home in early 2016.  Since then the wife worked and lived at an elderly home with a branch in Yuen Long.

66.  It is also factually agreed that the wife returned to the husband’s home on about 16 June 2017.  Before then, the parties spent a couple of nights in a guesthouse and a hotel discussing about, to put it in a neutral way, their marriage. Finally, the parties came to an agreement on 19 June 2017 as a result of which the Agreement was signed at the husband’s home.  The husband, said the wife, further gave her the Written Promise the contents of which have been referred to in [13] to [18] above.

67.  A few days later on 22 June 2017, the parties attended the office of TL & Co. The wife said in her affirmation that she was asked by Mr Tang to sign on some documents, the details of which she paid very little attention to and could not recall, save that she was told by Mr Tang and believed that they were divorce papers.  She claimed she was not aware that TL & Co represented the husband only. She thought since it was a joint application the firm was representing both of them.

68.  The wife claimed it was not until 1 November 2017 when she caused a search of the court file at the Registry that she uncovered the Consent Summons and the Consent Order.  She had no recollection of having signed the Consent Summons.  It was upon this discovery that the wife confronted Mr Tang at his office in about November 2017 and commenced her legal actions set out in [29] to [36] above.

69.  The wife’s case is essentially that she was extorted by the husband to return to the latter’s home and was persuaded by him and his daughter to make a joint application for divorce.  The idea of divorce was first raised by the husband. She only raised this idea for the first time on 27 May 2017 during a phone call she had with the husband.

70.  On the other hand, the husband alleged that the issue of divorce was suddenly raised by the wife in about January 2016.  That was about the time when the wife left the husband’s home.  According to the husband, there was no further progress on the divorce matter.  Then in about the end of May 2017 when the husband visited her at Yuen Long trying to salvage the marriage, the wife raised the issue again.  Discussions between them then ensued from end of May to early June 2017. 

71.  The husband said it was after rounds of negotiations that the parties came to an agreement that he was to pay $700,000.  He denied he was responsible for the Falling Incident and the Shenzhen Sale.  He gave a detailed response to these incidents in his affirmation.  In brief, the incidents were never the subject matter of their negotiations. 

72.  In his affirmation, the husband accepted that he wrote the front page of the Written Promise.  As for the reverse page, he did not write the last two lines.  On the 2^nd day of trial, when the words under correction fluid came to light, he said in evidence that he had no knowledge about the erasure.  The signature that apparently endorsed the erasure was not his.  At trial, he said he wrote the front page of the Written Promise on 19 June 2017 but he could not recall whether he wrote out both sides of the Written Promise in one-go or he did separately.  He said probably he added the reverse page at the wife’s request before heading off to TL & Co.  He also made it clear that it was never his suggestion that the wife could apply for public housing and CSSA.  He denied using these luring the wife to the bargain.  These were all the wife’s own initiation.  As a matter of fact, the wife had been mentioning these before they came to an agreement; and she was resourceful in obtaining the service of social workers.

73.  As referred to above, apart from the $200,000 provided under the Agreement, there was in fact a further sum of $500,000 payable by him.  The money had to be paid in the Mainland and deposited into the bank account of the wife’s daughter. This was so arranged at the request of the wife in order to assist her in passing the means test in her applications for public housing and CSSA.  This explained why the parties had to take the trouble of crossing the border to have RMB 300,000 paid on 23 June 2017.

Discussion

74.  By and large, except some minor discrepancies, the parties are not very much apart from each other as to what happened since May 2017. 

75.  I have heard and seen the parties in the witness box.  In assessing them as a witness, I have taken their age into consideration.  The husband was in his mid-70s and the wife in her 60’s.  Their memories might not be entirely accurate.  However, as I will demonstrate below, I do not find the wife a credible witness.  The wife was certainly not a senile retiree. She was a retired professional. According to my observation, she was alert and sharp.  On many occasions when being cross-examined by Ms Cheung, she was astute enough to be forgetful when it came to some of the questions. On many more occasions, in my assessment, she deliberately avoided Ms Cheung’s questions, such as those about her properties in the Mainland.  She even avoided her own counsel Mr Chan’s questions.  This prolonged the cross-examination.  She pleaded innocence by saying she was brainwashed and everything was plotted by the husband.  In my judgment, she was a sheer liar, making up her story along the way in the witness box.  As for the husband who was somewhat 10 years older than the wife, I find him generally a truthful witness.  His evidence is supported by that of Mr Tang, who, as I find, informed the court as to what had happened when the Consent Summons and the relating documents were signed.

The Falling Incident and the Shenzhen Sale

76.  I shall begin with the Falling Incident and the Shenzhen Sale.

77.  The wife in her supporting affirmation set out at lengths the Falling Incident and the Shenzhen Sale. She said the husband was apologetic for her injuries sustained in the Falling Incident and the loss from the Shenzhen Sale and promised to compensate her with $700,000 and on the top of these the husband suggested to help her apply for CSSA and public housing.  She affirmed that the $700,000 that she was to receive under the Promise, was, in her mind, to compensate her for the hardships arising from Falling Incident: §45.  Indeed, she said in her supporting affirmation and in evidence that in about 26 May 2017 the husband even offered to add her name to one of the husband’s properties.

78.  The parties had different versions as to how the accident happened.  I do not think this is material.  The husband said the incident happened in 2004.  The wife initially said in her supporting affirmation that it happened in 2000 and then corrected it to 2010 in her affirmation in reply.  It is true that both parties mixed up the date of the incident.  However, it is difficult to understand why the wife would have mixed up the date (especially when the first date given by the wife was one before the parties’ marriage) if the incident, according to the wife’s case, was so material to the parties’ bargain.

79.  As regards the Shenzhen Sale, the wife alleged the property, which was in her sole name, was sold despite the objection of her mother who selected it and paid for the purchase price.  She said the property was only sold upon the extortion of the husband who subsequently did not honour his promise of making a due contribution in buying a new property.  The wife claimed because of the Shenzhen Sale she was ostracized by her parents and her daughter.  That said, the wife admitted that the husband was never benefitted from the Shenzhen Sale.  In response, the husband said he only knew of it after the sale and it was none of his business.

80.  On 17 July 2019, when the wife was being cross-examined by Ms Cheung, the wife for the very first time said at the start of the negotiation with the husband, she demanded a sum of $3 million for the divorce. After a series of discussion, the final agreement was that the husband would pay her a sum of $700,000.  On the top of this, the husband would assist her in obtaining CSSA and a public housing unit to be applied for by the husband for her; and that before the allotment of a public housing unit, the wife would be allowed to stay in the husband’s home as long as she wished.

81.  It is clear that on her own evidence of 17 July 2019 the $700,000 was in respect of her divorce. That went against her own version, that formed the cornerstone of her case, that the money was “compensation” for the 2 incidents.

82.  Never before 17 July 2019 had the wife ever mentioned her demand for $3 million.  It is also significant to note that in Mr Chan’s closing submissions, the assertion that the wife thought the money was compensation for the Falling Incident and the Shenzhen Sale is not relied upon anymore.

The Agreement

83.  The wife said she was brainwashed by the husband and his daughter.  At that point, she did not realize that there were conditions to be met, notably the means tests, for the applications for public housing and CSSA.  The wife claimed, with a view to save his own money, the husband proposed to and did assist her in hiding her assets. That was the reason why $500,000 was dealt with separately and why the husband had to make payment of RMB 300,000 in Shenzhen. In a nutshell, she put all the blame on the husband and his daughter. Everything was arranged by the husband. It was a fraud on her.  The wife also pointed her finger at Mr Tang who, according to her, was within the husband’ s camp. 

84.  There can be little doubt that the bargain was arrived at after a couple of days’ discussion between the parties.  The Agreement was written on unambiguous terms. The wife admitted that she signed it and even produced her Hong Kong identity card when doing so.  In my view, it is absurd for the wife to say in evidence that she read and signed the Agreement but did not agree to the contents.

The Written Promise

85.  The parties were examined on the circumstances under which the Written Promise was produced.

86.  Notwithstanding the Agreement and the Written Promise were dated “19 June” the wife said the Agreement and the Written Promise were handed to and signed by her in the morning of 22 June 2017, just before they went to the solicitors.  This evidence did not sit well with her affirmation dated 11 June 2018 although I do not think anything material turns on that.

87.  The wife said she wanted an assurance that she could remain in the husband’s home until such time she was able to secure CSSA and public housing.  She said the husband was willing to give such an assurance and hence, the Written Promise. The wife confirmed that both sides of the Written Promise were written at the same time. She was adamant that she knew nothing about the erasure on the reverse side of the Written Promise.  She did not do the erasure.  The wife saw the husband just took out a scrap paper on the desk and wrote out his promise on both sides of the paper.  She went so far as to say that the erasure was already on the scrap paper when being taken out by the husband for the purpose of writing. 

88.  In chief, the wife confirmed that the Written Promise was all along being kept by her after it was written.  However, later on in cross-examination (on 21 November 2019), she retracted to say when they had returned from TL & Co, she put the Written Promise on the desk and so the husband could have made the erasure anytime.

At TL & Co

89.  The wife, in chief, testified that she was not allowed to read the court documents (obviously including the Consent Summons) and the court documents were just read out to her.  When she tried to get hold of the documents, the husband and his daughter grabbed them.  She had no chance of reading them.

90.  Mr Tang testified that he prepared the Consent Summons on the basis of the Agreement.  On 22 June 2017 he was shown the original of the Agreement by the parties. He said during the meeting with the parties when he was explaining the draft Joint Application and the draft Consent Summons, the wife read the documents by herself and thereupon pointed out some typing / clerical mistakes such as the date of the marriage and the address.  After the rectifications were done, the wife read the documents carefully again before she signed them. Mr Tang adduced the drafts that contained his hand-written corrections made at the suggestion of the parties as evidence (Exhibit “TSW-2”).

91.  Mr Tang confirmed that the wife attended the office of TL & Co in November 2017, causing some nuisance there.

92.  Apart from Mr Tang’s evidence, the wife’s claim also flies in the face of the uncontroverted documentary evidence. 

93.  The wife said she insisted on all court documents being prepared in Chinese. That was, as a matter of fact, duly done.  There was an Acknowledgment by the wife in the Consent Summons that TL & Co had clearly explained the Consent Summons to her, that she understood and agreed with the said terms, that she understood that she had the right to seek independent legal advice and that she agreed with and accepted the terms of the Consent Summons and confirmed the same by her signature: see [20] above.  In evidence, the wife said she did not recall whether the Acknowledgment was there.  Yet she agreed the signature to the Acknowledgement might be hers.  She even claimed she was 100% sure that the contents of the Consent Summons as adduced at trial were different from what she saw on the day of signing.

94.  The wife mentioned in chief that since TL & Co was familiar with the husband and his daughter, she was worried and so she asked to have a look at the court documents prepared by Mr Tang but that was denied; and she was not given a copy of any of these documents.  It is to be recalled it was part of the wife’s own evidence that the husband did not really care about her and had not been treating her well. This made her realized the kind of person the husband was and she was cheated in the Shenzhen Sale. The Shenzhen Sale destroyed her relationship with her parents, caused anguish to her parents who got sick and died early.  If that was the case, it is a mystery why apparently she signed all the documents without any hiccups that day.  Another mystery is why it was until about 4 months later in November that she realized things went terribly wrong.

95.  When the wife received $200,000 from the husband, she wrote a confirmation acknowledging on no ambiguous term that the said $200,000 was payable in respect of the Joint Application of her divorce. The Agreement and the Written Promise were clearly related to the marriage/divorce.  It is a sheer fabrication on the part of the wife to say that it related to the Falling Incident and the Shenzhen Sale: see [33] to [34] and [45] of the wife’s affirmation dated 11 June 2018.  I am sure that the wife was lying through her teeth.

96.  I accept Mr Tang’s evidence that the wife had read and signed the court documents and that during the meeting he had explained to the wife that TL & Co was acting for the husband. It cannot be the truth that the wife did not realize that she was signing the Consent Summons at that time.  The claim is utterly unbelievable and must be rejected.

97.  On the basis of my finding, the wife’s second ground must be rejected.

98.  With the conclusion that I have come to, I do not think I need to come to any definite view on who did the erasure to the Written Promise.  It is to be recalled that the wife went so far as to say that the erasure was already on the scrap paper when being taken out by the husband for the purpose of writing.  This is, in my view, next to impossible for the reason that the words “not unlawful” (不違法), when read in the context, were clearly originally part of the sentence.  Consideration has also to be given to the wife’s conflicting evidence regarding how she had been keeping the Written Promise.  On the totality of the evidence that I have referred to above, I incline to believe that the wife is a more likely candidate. 

The First Ground

99.  I now turn to the first ground which, on the basis of the foregoing findings, could be disposed of expeditiously.

100.  The husband said since the wife caused a nuisance at TL & Co, he agreed to pay the wife $200,000 prematurely, which he did on 1 November 2017. 

101.  At the material times the wife was living at the husband’s home.  That was the situation up to about 20 April 2017.  The husband said since November 2017 the wife became very difficult and always made a scene at home.  She demanded the husband for a further $2 million otherwise she would perish with the husband together (“一齊同歸於盡”).  The husband found the wife’s behaviour so threatening that he decided not to allow her to continue to stay at his home.  On about 20 April 2017, when the wife returned home after a court hearing, she was denied entry into the building on the instruction of the husband. The wife was forced to seek her own accommodation.  This was on this basis that the wife claimed she was misled by the husband.

102.  Mr Chan relied upon the evidence of the husband that the wife was provided with the Written Promise before she agreed to follow him to TL & Co.  Therefore, the Written Promise was clearly a factor which the wife took into account when she decided to make a joint application for divorce in the way she did. Specifically, the wife was misled by the husband into thinking that she would be permitted to live in the husband’s home as long as she wished.  It turned out that the husband reneged on his promise.  It is submitted by Mr Chan that it did not matter that the own behaviour of the wife allegedly contributed to her expulsion or left the husband with no choice as he suggested because the wife was no stranger to the husband and he should know her well when he made the promise.  A belligerent wife is still misled if she is made a promise which is not kept. He further submitted the misrepresentation in the present case is a continuing one. 

103.  I agree with Ms Cheung that the Written Promise was part of the bargain of the parties in respect of their divorce; the term regarding the wife’s staying at the husband’s home was part of the overall bargain.  I also agree with Ms Cheung that after signing the divorce documents the husband had kept on performing his part, specifically he did allow the wife to stay at his home until such point when there was a change in the circumstances arising from the wife’s breach of her own part of the bargain. 

104.  Against this factual background, I agree with Ms Cheung that it cannot be said that the husband misled the wife.  The wife was the first to renege on the bargain when she applied to aside the Consent Order by starting a chain of legal actions and seek more money from the husband.  It does not lie for the wife to say that the husband had reneged when in fact she was the one who pulled the rug out from under their agreement first.  I further take the view that if Mr Chan’s argument regarding “misled” were correct, on the facts of the present case, the husband would be more qualified than the wife to rely upon this ground.

105.  Mr Chan accepted that Section 15C is not cast in mandatory terms. Even where a party has been misled, the court would still have a discretion to decide whether or not a decree nisi should be rescinded.  On the above findings of fact, even if Mr Chan’s argument regarding “misled” were correct, I have no doubt that this case is not one where the court should exercise its discretion to rescind the decree nisi.

Orders

106.  For the reasons aforesaid, the wife’s application must be dismissed and her Form A dated 11 December 2017 must be struck out and I so order.

Costs

107.  The wife failed in her application. I see no reason why the costs should not follow the event.  I make an order nisi that the wife do pay the husband’s costs of and in the wife’s application, including all costs reserved and with counsel certificate.  Such costs are to be summarily assessed with the following directions:

(1)  The husband’s solicitors do lodge and serve their Statement of Costs within 28 days;

(2)  The wife’s solicitors may lodge and serve a written opposition within a further 14 days, such written opposition shall not be more than 2 pages, at font 13 and with 1 ½ line spacing;

(3)  The husband’s solicitors may lodge and serve a written reply within a further 7 days, such written reply shall not be more than 1 page, at font 13 and with 1 ½ line spacing; and

(4)  Unless otherwise directed by the court, the summary assessment shall be dealt with by paper disposal.