L v.C

FCMC 5952 /2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 5952 OF 2012

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JUDGMENT
(Discharge of undertakings)

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Background

1.  The petitioner of this case is the wife. The respondent is the husband.

2.  The husband applies by way of his amended summons of 26 March 2014 for the discharge of undertakings given by him in respect of 2 landed properties in a consent order dated 25 July 2012 (“Consent Order”). [1]

3.  The parties are now in their 30s. They met in 2000 and soon started cohabitation in China. They were married in 2006. During their marriage, a son was born in 2008. He is now 6 years old.

4.  Their relationship deteriorated in/about October 2011 when the wife found out (and this is admitted by the husband) that he had an extra-marital affair with another woman.

5.  In March 2012, the husband moved back from China to Hong Kong with the son. A month later, the wife petitioned for divorce on the fact of “unreasonable behaviour”, namely the husband had an extra-marital affair. Decree Nisi was granted on 25 July 2012 which was made absolute on 6 October 2012.

6.  By a consent summons dated 3 May 2012 in Chinese, the couple purportedly settled the custody and ancillary relief matters between them. The said consent summons, which later became the Consent Order, provides for the following terms:

(1) Custody, care and control of the son be granted to the husband, with reasonable access to the wife;

(2) The husband do pay nominal maintenance of $1 per year to the wife during the joint lives of the parties, or until the wife remarries, whichever is the earlier. 

7.  The above terms are said to be subject to the following undertakings of the husband (collectively the “Undertakings”):

(1) An undertaking to continue to pay for the monthly mortgage repayments of the Shenzhen Property;

(2) An undertaking that (i) if the Hong Kong Property is to be sold before the son reaches 18, all net sale proceeds (after deducting the mortgage and all relevant sale costs) will be given to the wife save that the husband will keep $200,000 to himself; but (ii) if the Hong Kong Property is to be sold when the son is or after 18, the husband will give the whole net sale proceeds to the son.  

8.  The husband claims that the Undertakings were given on the mistaken/wrong belief that the son is his natural son and that he is the party at fault in the marriage because he had an affair with another woman. He held such belief because the wife has concealed from him the fact that she had sex with and was made pregnant by a man whom she came across one night in late 2007 (“Incident”).  

9.  In opposing this application, the wife argues that the husband has all along been made aware of the Incident and of the possibility that the son might not be his natural child. She further says that during her pregnancy, she suggested an abortion in the fear that the child was conceived during the Incident; but the husband did not agree. After the son was born, there were discussions about the dissimilar looks and unmatched blood types of the husband and the son, so that it was suggested to him that a DNA test should be done to ascertain true parentage. Yet, he dismissed such an idea. She insists that the Undertakings were given solely because he knew full well that she was the actual and only financer of the 2 landed properties. Hence, she asks that his amended summons be dismissed with costs.

10.  It is not in dispute that the husband has not paid for the mortgage repayments of the Shenzhen Property since decree absolute was granted in October 2012. Yet, no enforcement proceedings, such as committal for contempt proceedings, were taken out by the wife so far.

11.  By a DNA report dated 2 March 2013, it is confirmed that the husband is not the natural father of the son. The wife does not dispute the content of the DNA report.

12.  Subsequent to the DNA report and upon the application of the husband, it was agreed by both parties on 1 April 2014 that the custody order embodied in the Consent Order should be varied to the effect that custody of the son be granted to the wife, with reasonable access to the husband.

The issues

13.  Upon reviewing all the evidence and submission in this trial, I consider that the main issue of this trial is whether the husband knew or ought to have known that he was not the natural father of the son before/at the time when the Consent Order was made. Peripheral to the main issue include the following subsidiary issues:

(1) Whether the wife had informed the husband of the Incident so that he was put on alert that the son might not be his natural child;

(2) Whether the wife and/or her relative/friend had suggested to the husband to do a DNA test after the birth of the son, upon discussion on the dissimilarity in their look and non-matching of their blood types.

14.  There are other purported issues suggested by Mr Chan Chun Tin, solicitors for the wife, such as, who actually financed the purchase of 2 landed properties mentioned in the Consent Order. Hence, he sought, orally without a formal summons, disclosure on the financial condition of the husband in the last PTR hearing of 13 October 2014.

15.  In the same hearing, I refused to hear his oral application, nor did I agree that his other purported issues on the actual financier of the 2 landed properties were relevant at this stage to the present application, mainly for the following reasons.  

16.  First, Mr Chan has not taken out any inter partes summons on disclosure and/or prepared any supporting affidavit. He simply stood up on his feet in the hearing and insisted that this court should hear his oral application for disclosure. He went on to submit that “a judge with a fair and open mind and not perverting the course of justice” would hear and allow his oral application for disclosure. However, it is abundantly clear that Order 24 of the Rules of the High Court has not been complied with. It is also in contravention to the directions given by me on 24 June 2014 for all interlocutory applications to be taken out 35 days therefrom.  

17.  Second, both parties have already agreed in broad terms in the mention hearing of 1 April 2014 (whereby both parties were represented by the same legal teams) the issues to be tried, as a result of which directions were given for filing and service of affirmation evidence on these issues. No appeal application has been made in respect of these directions.

18.  Third, it is fair to say at this stage that even if (just assuming) I was to discharge the Undertakings, the husband, through his counsel, has agreed that such a decision would not prejudice the wife’s right to make further ancillary relief claims for her herself and the son (who is treated as a child of the family). Therefore, the financial disclosure of the husband and/or the wife’s alleged contribution to these properties can and will be fully canvassed at a later stage.

19.  Of note is that there is no application for leave to appeal in respect of my decision/orders given in the PTR hearing of 13 October 2014.

Applicable legal principles

20.  Both Mr Kevin Li, counsel for the husband, and Mr Chan for the wife refer me to TLS nee J v RCS, FCMC 1637/2012, date of judgment 16 January 2014, in which Deputy District Judge G Own considered the English cases of Mullins v Howell (1879) 1 Ch D 763, Cutler v Wandsworth Stadium Ltd [1945] 1 All ER 103 and Shepherd Homes Ltd v. Sandham [1971] 1 Ch 341. The learned deputy judge set out 4 situations where a party who has given an undertaking to the court may seek to uplift or release himself from an undertaking.

21.  I also take note of the following English cases on discharge of an undertaking:

(1) Kensington Housing Trust v Oliver (1997) 30 HLR 608;

(2) Mid Suffolk District Council v John Edgar Clarke [2006] EWCA Civ 71.

22.  Based on all the above cases and doing the best I can, I shall summarise the applicable legal principles as follows:

(1) An undertaking can be discharged, but not varied. This is because the litigant is not ordered to give these undertakings; he chooses to give them: Cutler (supra);

(2) The court has jurisdiction to discharge an undertaking given to the court at any stage, even if it was given in an order made by consent: Kensington Housing Trust (supra) and Mid Suffolk District Council (supra);

(3) In general, a party who has given an undertaking to the court may seek to uplift or release himself from an undertaking in any of the following situations:

(a) when there has been a material change of circumstances since the undertakings were given which are not foreseeable at the time and which make compliance not feasible;

(b) when the subject matter to which the undertakings relate no longer exists which renders compliance impossible;

(c) the party to whom the undertaking was given releases the undertaker from complying with the undertaking;

(d) when the undertaking was obtained through fraud, misrepresentation or mistake (See: TLS nee J v RCS (supra) );

(4) Whether an undertaking given to the court should be discharged is a matter of judicial discretion to be exercised if it is “just” to do so: Kensington Housing Trust (supra) at 613;

(5) However, in case where an undertaking to the court is given in lieu of a final injunction, that it is “just” to discharge the undertaking is not sufficient, “material change of circumstances” must be shown: Mid Suffolk District Council (supra) at §§52-56.

23.  It is plainly clear that the issues that call for determination are all factual ones. The whole case thus turns on the credibility of the witnesses.  In this regard, I will refer to the helpful judgment of Chung J in Star Glory Investment Ltd v Kai Tuo (HK) Technology Co Ltd, HCA 3523/2002, date of judgment 13 August 2005 (at para 12) on the appropriate test on credibility of witnesses.

24.  With these principles in mind, I shall now turn to the issues.

Whether the Incident was revealed to the husband

25.  According to the wife’s case, she suspected that the husband had an affair with another woman in 2007.  She was so disturbed by this that she went out for a drink with her male colleagues and her best friend (“Ms Law”) one night towards the end of 2007.  Soon they were joined by some men from the nearby table(s).  She got drunk in the end. Woke up the next morning naked and alone inside a hotel room, she realised that she had sexual intercourse with a man the night before. However, she did not know the identity of this man, as she was drunk and not sobre.

26.  She immediately told Ms Law of this Incident after she left the hotel. Ms Law told her that she herself was also drunk and did not know what had happened the night before. Ms Law also told her that she should frankly disclose everything to the husband.

27.  Armed with Ms Law’s advice, the wife revealed the Incident to the husband that evening. She expressed that she felt very remorseful and guaranteed that it would not happen again in the future. It is her evidence that the husband, in response, did not lose his temper at all. He simply became sulky and ignored her. After a few weeks of depression and alcohol-drinking with his friend (“Mr Chong”), he forgave her on his own volition. They resumed to their normal life, including their sex life thereafter.

28.  Then in February 2008, the wife was found pregnant. She reminded the husband of the Incident again and expressed her concern that the baby might have been conceived during the Incident. She requested for an abortion, to which he refused. He told her that he would treat the child as his own.

29.  The husband, on the other hand, insisted that the wife has never revealed to him about the Incident. Had she told him, he would have asked for a divorce right away in 2007.

30.  He also revealed that 2 of his friends, including Mr Chong, had told him that they saw the wife behaving intimately with other male(s) in 2007.  Mr Chong went further to tell him that he found intimate photos of the wife with other males(s) displayed in her QQ account (QQ空間).  The husband then checked out those photos himself and found some of them showing a male putting his arm(s) around the wife’s shoulder(s). He was burst with anger (眼火爆).  However, the wife vigorously denied having any relationship with this male and since he was still in the honey-moon period of their marriage, he did not pursue the matter further.

31.  The wife conceded that there was this incident of the husband’s finding out some photos of her with other male(s) displayed at her QQ account in 2007 before the Incident took place. It is her own evidence that the husband, upon seeing these photos, was outraged and manifested his anger by throwing her digital camera onto the ground.

32.  Upon considering all evidence, I do not believe in what the wife has said on this issue. As submitted by Mr Li for the husband, one would immediately see, without any difficulty, the drastically different reactions of the husband as alleged by the wife in the 2 scenarios. In my judgment, if the husband would be in such rage upon seeing some photos merely showing a male putting his arm(s) on his wife’s shoulder(s), it is illogical and against common sense, and thus inherently improbable, that he would react so calmly to her confession that she had a “one-night stand” with an unknown male, bearing in mind that this is something much worse or more serious in nature than finding her taking intimate photos with male(s).

33.  More importantly, the wife gave contradicting evidence herself.  While in the witness box, she acceded that according to the character of the husband, if he knew that she had an extra-marital affair (出軌) and the son was not his, he would divorce with her and for sure not going to accept, or support, the son. This concession clearly does not sit well with the reaction of the husband as alleged by her after she told him about the Incident. Further, according to her oral evidence, the husband would take care and play with the son when she was playing mahjong at the home of their friend, Mr Cheng. After the divorce, the husband obstructed her access to the son, in that she was not allowed to take the son to China during access. Had she really told him of the Incident, it remains unexplained why he would act so contrary to his character by showing love and care to the son.   

34.  In his closing submission, Mr Chan for the wife refers me to her 2^nd affirmation (para 15 therein) in which she said that the husband confessed to her in 2010 that he had an affair with another woman. When she asked him why he did so, he replied that “it was to revenge what she had done before”. He went on to query that “since she had sex with a stranger in the past, why he could not have sex with another woman”. Mr Chan points out that in reply to the wife’s 2^nd affirmation, the husband has not expressly denied in his 3^rd affirmation (para 14 therein) that he had said so, which proves that he was aware of the Incident.

35.  However, I do not agree.  In my judgment, it is not abundantly clear if the wife was referring to the Incident or other incident in her 2^nd affirmation. It is pertinent for me to point out that in her own confession, she had sexual relationship with another man when she was dating with the husband.  Besides, all evidence must be viewed in its totality. I take the view that if the husband’s evidence is considered in its totality, one will have no difficulty to see that it has always been his case that the wife has concealed from him the Incident. His evidence was not shaken despite cross-examination. Hence, it must be implicit in his 3^rd affirmation that he denied any knowledge of the Incident.

36.  To conclude this part of the discussion, I find on the balance of probabilities that the wife has concealed from the husband of the Incident.

Whether there were discussions of looks, blood types & DNA test

37.  In a nutshell, the wife’s case is that the husband was told/reminded that the son did not look like him on numerous occasions and that he should arrange for a DNA test to ascertain true parentage. However, he just brushed the idea away. Such allegation is refuted by the husband. In the following, I am not going to discuss each and every occasion when such discussion allegedly arose. Suffice for me to say is that I have considered them all, but will only focus on the more important occasions when these topics were allegedly discussed.

38.  According to the wife’s evidence, at the full-moon banquet of the son, many relatives and friends, such as Ms Law and the wife’s elder sister (“Wife’s Sister”), had commented that the son did not look like the husband.

39.  The wife went on to say that on the son’s 1^st birthday party, Ms Law and the Wife’s Sister raised this topic again in front of the husband and his immediate family (including his mother and elder sister). They also talked about blood types. The husband allegedly told that the blood types of him and the son were type A and type B. The wife was of type AB. The Wife’s Sister and Ms Law then looked up the internet at once to discover that the blood types of the parties could not have genetically produced the son with the alleged blood type. They thus said that the son was not the husband’s biological child and suggested that a DNA test should be done. The husband just brushed the idea away and told them to focus on the mahjong game.

40.  The Wife’s Sister added that later in early 2010, she was surfing on the internet and suddenly recalled their previous discussion on blood types. So, she searched for relevant information and emailed the same to both parties. She then called the husband and reminded him to do a DNA test.

41.  The husband simply denied that there was any discussion on the son’s full-moon banquet or 1^st birthday party on the dissimilarity in appearances between him and the son and/or the non-matching of their blood types.

42.  I should, first of all, point out that although the wife has filed a notarised declaration of Ms Law (dated 15 July 2014) to support her case, the latter was not called to give evidence in this trial, so that the husband does not have a chance to test her credibility. I also note that there are discrepancies between Ms Law’s notarised declaration and the oral evidence of the wife.  Ms Law’s declaration alleges that she told the parties that the “non-matching of blood types proves that the baby is not your natural child” (血型不一樣, 説明寶寶不是你們親生的). The wording used in her declaration is positive and certain.  This is contradictory to the wife’s evidence in cross-examination, during which she said that Ms Law did not say for sure that the son was not his son and that Ms Law just jokingly asked them to check it out to confirm that.  In the premises, I refuse to place any weight on the notarised declaration of Ms Law.

43.  Upon considering all evidence, including their demeanour in the witness box, I am more inclined to believe in the husband’s evidence. I reject the evidence of the wife and the Wife’s Sister. I find their evidence illogical and/or inherently improbable and/or contradictory. I will give a few examples as illustration in the below.

(1) It is indisputable that the wife had done wrong in the Incident, as she had sex with a stranger. According to her, she had suspicion that the son was conceived during the Incident and thus not the biological child of the husband. Yet, she also alleged that the husband had forgiven her. It defies one’s common sense or logic that she, instead of doing anything to put an end to this matter, reminded the husband of such suspicion by, at least, acquiescing Ms Law/the Wife’s Sister to remark on the dissimilarity of looks between the husband and the son on repeated occasions, and to the extent of suggesting to the husband that a DNA test should be done.

(2) The wife described in a fairly detailed manner what was allegedly discussed among the husband, Ms Law and the Wife’s Sister in relation to blood types on the son’s 1^st year of birthday. However, when being cross-examined as to the appropriateness of such remarks in the presence of the husband’s senior members of the family, she changed her evidence conveniently to say that she was busy in the kitchen and could not hear the conversation clearly.

(3) The wife then went on to say that after the son’s 1^st year of birthday, she told the Wife’s Sister not to make such remarks in front of the husband any more. However, the Wife’s Sister, in her oral evidence, told the contrary; she denied that the wife had told her so.

(4) It is the evidence of the Wife’s Sister that she also suspected that the son might have been conceived during the Incident and thus not the natural child of the husband. With such suspicion, she went so far as to tell in her affirmation that upon checking the blood types on the internet, she expressly said that the son was certainly not the husband’s child (寶寶肯定不是答辯人的孩子). I accept Mr Li’s submission that it would seem strange, if not rude, to even mention the possibility that the son did not belong to the husband in front of his senior family members. This is made even more inherently improbable when one has to bear in mind that such remarks would more likely than not instigate the husband’s anger leading to possible divorce.

(5) In her affirmation, the Wife’s Sister suggested that the husband told her that his blood type was A and that of the son B. The wife’s blood type was AB. However, a blood donation card of the husband shows that his blood type is, in fact, B positive. In his closing submission, Mr Li for the husband asks a rhetorical question of why the husband would deliberately tell a different blood type. After considering all evidence, I tend to agree with Mr Li. The only logical answer is that there was never a conversation about blood type.

(6) In any event, there lacks any scientific evidence that parents with blood types A and AB cannot produce an offspring of blood type B. I add that on her own evidence, she obtained different results each time when she surfed on the internet on blood types matching.   

44.  Mr Chan for the wife has spent a significant portion of his closing submission on the husband’s oral evidence of using non-vaginal ejaculation (體外射精) as a contraceptive measure during the marriage. I try my best to understand his submission, which seems to be this. The parties had been using non-vaginal ejaculation as a contraceptive measure for 7 years (counting from the year of cohabitation) and the method was proved successful. Under the circumstances, the husband should have felt suspicious as to why the wife could, all of a sudden, be pregnant with the son. The fact that he did not have any suspicion shows that he was lying when he said that he adopted non-vaginal ejaculation during the intercourse with the wife. It follows that he must be lying in all his evidence.

45.  With respect, I cannot agree with this line of submission. The undisputed evidence is that the parties never used condoms during their marriage. There is no scientific evidence to show that non-vaginal ejaculation is a 100% safe contraceptive measure. The parties had normal sex at all material times. I do not see how the husband should have been sceptical about the wife’s pregnancy under the circumstances.

46.  To sum up, I reject the evidence of the wife and her witness(es). I do not believe that there were discussions among the parties and/or the Wife’s Sister and/or Ms Law on the dissimilarity in looks or blood types of the husband and the son, so that the husband had been asked or was alerted to conduct a DNA test.

Other consideration

47.  There are other areas of submission covered by Mr Chan in his 45-pages long of closing submission. They can be discussed conveniently under the following subheadings.

(i) Why the Undertakings were given

44.  It is the husband’s case that at the time of the divorce, he thought that he was the one being unfaithful in the marital relationship, and thus the party at fault. Therefore, he agreed and undertook to pay the mortgage repayments of the Shenzhen Property (registered solely under the wife’s name). 

45.  He further said that being not aware that the son was not his biological child at the material times, he asked for custody, care and control.  He claimed that both the wife and he wanted to provide a stable home base for the son at the Hong Kong Property even after the son should reach 18. But the wife, probably due to his extra-marital affair, was worried that he might sell the Hong Kong Property (registered in his sole name) and took the money away without spending any on the son. He therefore agreed and undertook that:

(1) in case the Hong Kong Property was sold before the son reached 18, he would take only $200,000 out of the total net sale proceeds and the remaining net sale proceeds would be given to the wife; and

(2) in case the Hong Kong Property was sold after the son reached 18, he would give all net sale proceeds to the son.

46.  The wife, however, insisted that the Undertakings were given by the husband solely because he knew that the Shenzhen and Hong Kong Properties were financed by her solely without his contribution.

47.  I have to say at the outset that I reject the wife’s case that the Undertakings were given solely because the landed properties in questions were funded by her.  By this, I do not mean to express any firm view on who had (or had not) contributed to the purchase price/mortgage repayment of the landed properties, because that may be considered at a later stage (above paras 14-19 are referred). I say so because I am of the convicted view that if one just looks at the plain wording of the Undertakings, one can immediately note that the Undertakings clearly relate to the son. They are worded in such a way that the son’s welfare, up to even after he is 18, has been taken into account. Besides, the fact for divorce advanced by the wife, namely the husband having an affair with another woman, coincides with the husband’s explanation of why the Undertakings were given.

(ii) Meeting with Mr Chong

48.  According to the husband, he met his old classmate/close friend, Mr Chong, in/about February 2013 for catching-up. He told Mr Chong that he was divorced and showed the recent pictures of the son in his mobile. Mr Chong then commented that the son did not look like him. Mr Chong went on to remind him of the occasion back in 2007 when Mr Chong met the wife acting intimately with another man in the street. The husband had a second thought himself and finally decided to take the son for a DNA test out of curiosity and suspicion.

49.  Mr Chan for the wife submits that the husband fabricated the evidence of meeting Mr Chong because he refused to call Mr Chong to be his witness.

50.  I think this is an over-generalised comment on the part of Mr Chan, which is thus rejected. In any event, the husband under cross-examination indicated that he could call Mr Chong to give evidence in the trial. However, for reason(s) better known to the wife, Mr Chan confirmed on the 2^nd day of trial that he would not request to call Mr Chong to give evidence.

51.  After due consideration, I reject Mr Chan’s submission that the husband fabricated the meeting with Mr Chong. I believe in the husband’s evidence on this topic.

(iii) Motive of the present application

52.  In a nutshell, the wife said that the husband sought to discharge the Undertakings not because of the true identity of the son, but because he did not wish to comply with the Undertakings to pay for the mortgage of the Shenzhen Property, etc and after she refused to be subdued by his extortion of $200,000.

53.  These allegations are denied by the husband. He said that he did not pay for the mortgage repayment of the Shenzhen Property because he knew that the property was later rented out, which rental was sufficient to cover the mortgage repayment.

54.  It is dubious to note that in her demand letter dated 21 March 2013 and prepared by Mr Chan, the wife made no allegation of having been blackmailed by the husband. Such allegation only surfaced for the first time after the husband took out his present application.

55.  In any event, the wife has not taken out any enforcement proceedings in respect of the Undertakings, nor does she dispute that the rental of Shenzhen Property is sufficient to cover the mortgage repayment.

56.  The submission of Mr Chan is thus rejected.

Knowledge of the husband

57.  Given all of the above findings and conclusion, it follows logically (and it is also my finding) that the husband did not know, nor should have known that the son was not his biological child before/at the time of the Consent Order was made, because the wife had not revealed to him of the Incident or alerted him of such possibility. This is misrepresentation by way of inaction or silence. The husband, relying on this misrepresentation, gave the Undertakings. In the premises, the Undertakings should be discharged.  

58.  If and just assuming that I was wrong on the above conclusion, I would point out that even in the wife’s own case, before the DNA report was done, neither she nor the husband knew whether the son was his biological child or not. [2] If so, it follows that it must be a common mistake, or a mistaken belief as submitted by Mr Li, that the husband was the natural father of the son, so that the Undertaking should be uplifted.

Conclusion

59.  Due to the reasons set out in the above, I will allow the husband’s application to discharge the Undertakings.

60.  There is no reason why costs should not follow the event. I thus make a costs order nisi that the wife do bear the husband’s costs of and incidental to this application and the trial, with certificate of counsel, to be taxed if not agreed. The nisi order will be made absolute if no application to vary the same is made within 14 days of this judgment.

61.  For the ancillary matters to move forward, I shall make the following directions:

(1) A call-over hearing be fixed for 17 August 2015 at 11 am (15 min reserved);

(2) Both parties do file and exchange Form E within 21 days from today;

(3) No questionnaire and/or affirmation shall be filed unless with leave;

(4) Both parties do file and serve their 1^st appointment bundle in accordance with PD 15.11.

[1] The 2 landed properties include : (i) Shenzhen Property registered in the sole name of the wife; and (ii) Hong Kong Property registered in the sole name of the husband

[2] See para 3.5 of closing submission of Mr Chan for the wife