57. From reading the above transcripts, I find that it is more probable than not that H did say about divorcing W at the airport given the fact that he already had a Petition ready for filing the next day. Also it took about 6½ years since mid-2004 before there was the chance for him to meet W. Such finding could well be supported by the Child’s evidence that he heard W had said “法庭見” to H. Had H not raised with W about divorce, W would not have said “法庭見” and that no doubt “法庭” must mean Family Court.
58. There was, however, no other evidence before me that H had asked W for her contact details at the airport except H’s own testimony that he did so. The Child’s evidence does not assist H. The Child at first said he was not sure (唔肯定)[23] that H had asked W for contact details and; shortly afterwards, he said he had no impression (冇印象)[24] that H had ever so asked.
59. First, I failed to see why H did not say a single word in his 1st Affirmation dated 3/3/2011 when seeking Order 1 about the airport incident that had just happened about 2 months ago on 5/1/2011. He even did not say anything about the Child in the 1st Affirmation. However, this did not escape the attention of the learned Judge Melloy who then raised the said requisitions with H[25]. Nonetheless, with the benefit of legal advice, H just kept on not telling (emphasis added) the Court the airport incident on 5/1/2011 but chose to say (i) that W had brought away the Child in mid-2004; and (ii) he had also lost contact with the Child[26]. The only reasonable inference that could be drawn was that H wanted to hide something away from the Court.
60. Secondly, H’s evidence of W not responding to his words of getting a divorce (搞離婚) and the Child’s evidence of having heard W said “法庭見” at first sight may seem to be mutually exclusive. However, if one takes an objective view, it was possible and reasonable for W to respond to H’s words of divorcing her with the words “法庭見”. I believe this was more probable than not to be the case.
61. In concluding the airport incident on 5/1/2011, I do not believe H had asked W for her contact details. Since the Petition was only filed on the following day, there was technically no issue of W evading service by refusing to provide her contact details on 5/1/2011 (only if there was such a request by H of which there was no such finding) when divorce proceedings had yet to be commenced.
Contact with W’s parents in PRC
62. H’s Counsel commented that W had not adduced any evidence from her parents, even by way of affirmation, as to her case that H could but had not contacted her parents for her contact details. H submitted that he did go to W’s parents in Mainland China around Chinese New Year in 2011 and left with them his contact details in case they could pass over to W.
63. This is essentially one’s words against another in the absence of W’s parents’ evidence. Given my finding already made against H on his non-disclosure and misstatement[27] in obtaining Order 1 and Order 2, I decided not to make any findings or further observation on this area.
Contact W via her mobile phone
64. H’s case was that he had lost W’s mobile phone number and could not confirm whether it was the one which W now provided in her Affirmation.
65. Given the long lapse of time, say, around 11 years by now since filing of the Petition, it was not practicable for drilling further on whether H had tried to locate W by calling her mobile number. I decided not to make any findings or further observation on this area.
Contact W via the Child
66. At paragraph 10 of H’s Affirmation in Opposition, he deposed to the additional fact that he was told by his mother that the Child was going to the United States for study[28]. H did not dispute that there were occasions when he met the Child and the Paternal Grandmother for processing documents for the Child’s study visa application. According to the Child, it took about 6 months for processing the papers before his departure in January 2011. Besides, it was also the Child’s evidence that H could, if he so wished, contact him via the Paternal Grandmother anytime.
67. That said, H could have asked the Child for W’s contact details if he so wished. Since H had repeatedly misstated to the Court that the Child was brought along by W and could not be contacted, even maintained such misstatement at the time when he filed his 1st Affirmation in March 2011, I find against H in that he had the time and chance to check with the Child on W’s contact details. The fact that the Child had been asked by W not to reveal to H her contact details was another issue. What matters was whether H had asked the Child about W’s contact details. On the Child’s evidence, which I find to be credible, was that H had never asked him before he left Hong Kong. H only asked him after his return from the United States in August 2012, which was long after the Ex Parte orders were granted.
68. On this topic, I find that H could have asked the Child for W’s contact details before seeking the substituted service Order 1 and Order 2.
Ex Parte Order 3
69. This Order was granted by the Court during a directions hearing when the Court took into account the facts (which were now found to be incomplete and inaccurate) set out by H in his 1st and 2nd Affirmations. Consideration was also given to the continual absence of W despite substituted service was done under Order 1 and Order 2.
70. Given that Order 1 and Order 2 would now be set aside, Order 3 would likewise be set aside accordingly.
The 5 additional facts
71. In my decision, these additional facts (Facts 1 to 5)[29] are relevant and material to the weighing operation of the Court for deciding whether or not to grant the substituted service orders under Order 1and also Order 2.
72. The absence of these additional facts in the 1st and 2nd Affirmations of H well supported this Court’s finding against H in that he had not fully and frankly disclose all the relevant and material information when seeking substituted service orders.
73. On test (1), the facts alleged not to be disclosed was the availability of the Child from whom H could ask for W’s contact details, in my decision, this was material.
79. Following such conclusion, there be an Order for trial de novo of the ancillary reliefs. Accordingly, the Judgment on ancillary reliefs granted on 3/7/2012 be set aside.
Costs
80. As W has been successful in setting aside all 3 Ex Parte Orders, I decided that it is fair and reasonable that the normal costs order to follow the event should apply.
(a) The substituted service Orders dated 31/3/2011, 21/10/2011 and 31/1/2012 be set aside;
(b) There be a trial de novo of the ancillary reliefs;
(c) The Judgment dated 3/7/2012 be set aside;
(d) The Petitioner do pay the Respondent’s costs of this application, including all costs reserved, to be taxed if not agreed;
(e) Both parties’ own costs be taxed in accordance with Legal Aid Regulations; and
(f) There be Certificate for Counsel.
83. This is a costs order nisi which would become absolute if no application to vary the same is made by any party within 14 days from the date of this Decision.
(George Own)
District Judge
Miss Lily Yu, instructed by Messrs. Johnny K.K. Leung & Co., Solicitors for the Petitioner
Miss Janine Cheung, instructed by Messrs. Wong, Poon, Chan, Law & Co., Solicitors for the Respondent