LCM v. LYY

CACV 445/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 445 OF 2002

(ON APPEAL FROM FCMC 6496 of 2000)

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JUDGMENT

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Hon Yuen JA:

1. This is an appeal from a decree absolute granted on a petition for divorce presented by the Petitioner ("the Husband") which decree was granted on 30 January 2001 in the absence of the Respondent ("the Wife") by reason of the matters set out below.

Background

2. In 1978, the parties were married in Hong Kong. In 1980, a daughter was born. The parties lived together in a series of matrimonial homes.

3. In 1992-3, the Husband had to hide from his creditors, and as a result he stayed at an unused housing unit in the New Territories which had been allocated to a friend. However the undisputed evidence is that the Wife visited him there and looked after those premises as well.

4. In 1993-4, the Husband started working as a cross-border driver, a job which necessitated his spending the night on the mainland occasionally. When he was not doing so, he lived at the matrimonial home (at least from time to time).

Petition

5. On 13 July 2000, the Husband, acting through solicitors, presented a petition for divorce on the ground that the parties had lived apart for a continuous period of at least 2 years, since August 1993. The Husband gave as his address the friend's premises in the New Territories. More importantly for present purposes, he claimed that the Wife's address and occupation were unknown to him.

6. On 18 July 2000, the Husband made an affirmation to support an application for substituted service of the petition. In this affirmation, the Husband alleged that:

(1) after he left the matrimonial home in 1993, the Wife had surrendered the unit to the Housing Department and thereafter he did not know the whereabouts of the Wife and their daughter;

(2) the Wife's parents had died;

(3) he did not know the whereabouts, addresses or telephone numbers of the Wife's brothers and sisters;

(4) the Wife had never introduced her colleagues to him nor had she disclosed her workplace, so he could not trace her whereabouts.

7. On the basis of that affirmation, Deputy Judge Leung made an order on 25 July 2000 for substituted service of the petition.

8. On 8 August 2000, notice of the petition was advertised for one day in a Chinese newspaper. The Wife was not aware of the notice.

9. On 8 December 2000, on the basis that the case was undefended, Judge Christie gave a decree nisi that the marriage be dissolved.

10. On 20 January 2001, the Husband applied for the decree nisi to be made absolute. The Wife remained unaware of the proceedings. Accordingly, on 30 January 2001, the decree nisi was made absolute and the marriage was dissolved.

Wife's notice of divorce proceedings

11. It was not until after the Husband was arrested and incarcerated on the mainland in May 2002 that the Wife had suspicions about the Husband maintaining a separate family on the mainland. A search at the Registry then revealed to the Wife that the Husband had actually obtained a divorce in the circumstances set out above.

12. After some time spent sending letters to the Husband questioning him about the divorce, applying for legal aid and consulting lawyers after legal aid was refused, the Wife applied in the District Court in October 2002 for leave out of time to appeal to this court to set aside the decree absolute out of time. Leave was granted by Judge Gill on 11 November 2002.

13. The Wife has adduced evidence to show that the parties had not lived apart for a continuous period of 2 years up to the time of the petition. More importantly for present purposes, it is patent that the Husband's affirmation in support of the application for substituted service was untrue, for instance:

(1) the Husband obviously knew where the Wife was living;

(2) the Wife's mother was alive, and her address was not only known to, but was used by, the Husband for some of his correspondence;

(3) the Husband knew the whereabouts of at least some of the Wife's siblings; and

(4) the Wife has always been a serving police officer, so it could hardly be said that the Husband could not locate her whereabouts through her work.

14. By a Notice of Appeal the Wife is seeking an order from this court that the decree absolute be set aside on the grounds that: (1) the Husband had obtained the order for substituted service by making a false affirmation; (2) the court had been misled to find that the petition had been served and was not defended; and (3) the decree absolute had been fraudulently obtained.

15. The Husband appeared before us and admitted that he had lied in his affirmation in support of the application for substituted service. He did not seek to dispute any part of the Wife's affirmations.

Procedure

16. However an appeal cannot be allowed by consent. Consequently, we had to satisfy ourselves that it was proper for this court to set aside the decree absolute.

17. Miss Anita Yip, counsel for the Wife, has referred us to a number of options from which she had to choose: (1) an application for re-hearing under rule 55 Matrimonial Causes Rules; (2) a fresh action to set aside the decree absolute for fraud; (3) an appeal to this court to set aside the decree absolute.

(1) Rule 55 MCR

18. First, rule 55 Matrimonial Causes Rules provides:

"an application for a re-hearing of a cause tried by a judge alone (whether in the Court of First Instance or the District Court), where no error of the court at the hearing is alleged, shall be made to a judge".

19. There is clearly no question of any "error of the court at the hearing". In Everitt v Everitt [1948] 2 All ER 545, Lord Merriman, P. held at 548A that where a judge had been deceived by evidence of service, the falsity of which he had no means of detecting, or where there was, even unintentionally, no notice to the party sought to be served, there was "no error of the court at the hearing".

20. In the present case, the court had been deceived by the Husband's affirmation into believing that the Wife's whereabouts were unknown to him, that she had to be served by way of substituted service (which had been effected) and that she was not defending the petition. Therefore, there was no error of the court at the hearing. Without more, therefore, one might think that the Wife could have applied for a re-hearing under rule 55 MCR instead of appealing to this court.

21. However, in Everitt v Everitt, Lord Merriman was conscious of the effect of s.184(1) Judicature Act 1925, which has its equivalent in s.18 Matrimonial Causes Ordinance. This provides:

"Where a decree of divorce has been made absolute and either -

(a) there is no right of appeal against the decree absolute; or

(b) the time for appealing against the decree absolute has expired without an appeal having been brought; or

(c) an appeal against the decree absolute has been dismissed,

either party to the former marriage may marry again".

22. Lord Merriman noted (at 549E) that under s.184(1) JA, i.e. s.18 MCO:

"it may be that the legislature intended that a decree absolute could only be set aside by appeal to the Court of Appeal, and that to avoid uncertainty in connection with re-marriage, a motion to a judge under the inherent jurisdiction of the court [to set aside a judgment as a nullity where a party had not been served- see 546I-547A] and an application to the ... Court under r.36 [r.55 MCR] are ruled out" (emphasis supplied).

23. Therefore, even though generally where an order has been obtained from a court in the absence of one party and that party later claims that he has not been served, the usual procedure would be for him to apply to the same court to set aside the order, rather than to appeal the order to a higher court, that may not be permissible (by reason of s.18 MCO) in a case where the order that had been obtained was a decree absolute.

(2) Fresh action

24. The same concern over s.18 MCO would apply to option (2) - a fresh action to set aside the judgment for fraud.

(3) Appeal

25. Accordingly, we are satisfied that the Wife was within her rights to adopt option (3) - an appeal to this court, and to obtain from this court an order setting aside the decree absolute.

26. This is not inconsistent with the procedures generally available where a party seeks to challenge, on the ground that it was obtained by fraud or mistake, a final judgment or order. Such a challenge may be by way of a fresh action (Jonesco v Beard [1930] AC 298, 300) or by appeal to a higher court (de Lasala v de Lasala [1980] AC 546, 561C-D) - see Lui Sik-kuen alias Lui Lup-fun v Lee Suk-ling [1992] 2 HKLR 371.

Restriction in s.14(3)(d) HCO

27. However in my view, an appeal to this court from a decree absolute would still be subject to s.14(3)(d) High Court Ordinance. Section 14 HCO provides:

"(1) Subject to subsection (3), an appeal shall lie as of right to the Court of Appeal from every judgment or order of the Court of First Instance in any civil cause or matter.

(3) No appeal shall lie -

(d) from an order absolute for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree".

28. I have considered whether s.14(3)(d) HCO applies to appeals from an order absolute made by the Court of First Instance only, given the wording of s.14(1). However, as a matter of construction of s.14(3) as a whole, and after consideration of the mischief of the legislation, I do not think that s.14(3)(d) applies to orders absolute made by the Court of First Instance only.

29. The other subsections in s.14(3) provide:

"(3) No appeal shall lie -

(a) from an order of the Court of First Instance allowing an extension of time for appealing from a judgment or order;

(c) from a judgment or order of the Court of First Instance, where it is provided by any Ordinance or by rules of court that the same is to be final;

(e) without the leave of the court or tribunal in question or of the Court of Appeal, from an order of the Court of First Instance or any other court or tribunal made with the consent of the parties or relating only to costs which are by law left to the discretion of the court or tribunal;

(ea) except as provided by the Arbitration Ordinance (Cap. 341), from any decision of the Court of First Instance -

(i) on an appeal under section 23 of that Ordinance on a question of law arising out of an arbitration award; or

(ii) under section 23A of that Ordinance on a question of law arising in the course of a reference;

(f) without the leave of the Court of First Instance or the Court of Appeal, from a judgment or order of the Court of First Instance given or made in summarily determining under rules of court any question at issue in interpleader proceedings;

..."(emphasis supplied).

30. As a matter of construction, it would be noted first, that orders or decisions "of the Court of First Instance" are referred to specifically in each of the other subsections, but not in s.14(3)(d). This is a pointer that in that subsection, all orders absolute (wherever made) are included, not just orders absolute of the Court of First Instance.

31. Further, the legislative intention that s.14(3) is not restricted by the wording of s.14(1) is shown in s.14(3)(e), which expressly refers to "orders of the Court of First Instance or any other court". This must mean that although s.14(3) restricts the application of s.14(1), the converse is not true.

32. Moreover, as a matter of the mischief of the legislation, it is difficult to see why the legislature should intend that there should be such a restriction only for orders absolute made by the Court of First Instance. In this connection, it is relevant to note that by virtue of s.10A MCO, matrimonial causes are directed to be commenced in the District Court. Therefore by far the majority of decrees absolute would be made not in the Court of First Instance, but in the District Court.

33. Why should a party who has had a decree absolute made against him in the Court of First Instance be subject to the restriction in s.14(3)(d) HCO, and yet a party who has had the same decree made against him in the District Court not be placed under the same restraint? It may be argued that the distinction between an appeal from the Court of First Instance and an appeal from the District Court is that leave has to be obtained for an appeal from the District Court. However in my view, that is a distinction without a difference, because there is nothing in the District Court Ordinance or the Matrimonial Causes Ordinance that enjoins the district judge (when considering whether to grant leave to appeal from a decree absolute) to take into account the "time and opportunity" criteria in s.14(3)(d) HCO.

34. In the circumstances, I take the view that s.14(3)(d) HCO does apply but that it is satisfied in this case, because the Wife (by virtue of the non-service of the petition) has not had the time or opportunity to appeal from the decree nisi (as in Everitt v Everitt and Wiseman v Wiseman [1953] P 79, 89).

Order

35. In the present case, where the Husband has admitted the facts set out in the Wife's affirmation, this court can be satisfied on the materials before it that the decree absolute should be set aside, and I would allow the appeal and set aside the decree absolute and the decree nisi, with liberty to both parties to restore the petition for hearing or other order. Miss Yip has declined to ask for any consequential orders, with the result that there will be no order as to costs. I should also mention that at the hearing, the court indicated to the Husband that we intend to refer the papers to the Director of Public Prosecutions, and he did not seek to make any submissions on the matter.

Hon Cheung JA:

36. I agree with the judgment of Yuen J.A. and the orders she proposes to make. I would add briefly the following observation.

37. The civil jurisdiction of the Court of Appeal is conferred by section 13(2) of the High Court Ordinance. It consists of, among other things,

(1) appeals from any judgment or order of the Court of First Instance in any civil cause or matter and

(2) appeals under section 63 of the District Court Ordinance.

38. Section 63(1) of the District Court Ordinance provides that, subject to the exceptions stated in section 63(3), an appeal can, with leave, be made to the Court of Appeal in a civil cause or matter.

39. Although the District Court Ordinance itself does not identify the jurisdiction to hear matrimonial causes, this is conferred by section 10A(1) of the Matrimonial Causes Ordinance.

40. An appeal against a decision of the District Court in matrimonial causes will require leave by reason of section 63(1) of the District Court Ordinance.

41. Although the District Court Ordinance contains no equivalent provision of section 14(3)(d) of the High Court Ordinance, clearly there should not be any difference in approach on matters affecting the marital status of a person. Hence an appeal from the District Court in respect of an order absolute should be subject to the same restriction imposed by section 14(3)(d).

42. In my view, this provision should be expressly provided for in the District Court Ordinance so that one does not need to go through an analysis of the different subsections in section 14(3) in order to ascertain whether it will apply to a divorce order absolute obtained in the District Court. After all, the context of section 14 is really directed towards appeals from the Court of First Instance to the Court of Appeal.

Hon Woo JA:

43. I agree to the judgment of Yuen JA and the order for costs that she proposes. I also agree with Cheung JA on his observation.

44. We direct that the papers of this appeal be referred to the Director of Public Prosecutions.