CFF v. ZWJ

CACV 171/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 171 OF 2012

(ON APPEAL FROM FCMC NO. 12016 OF 2010)

________________________

________________________

______________

JUDGMENT

______________

Hon Cheung JA :

1.  I agree with the judgment of Lam JA and the orders he proposes to make.

Hon Kwan JA :

2.  I agree with the judgment of Lam JA.

Hon Lam JA :

3.  This is an appeal against a decree absolute granted by the Family Court on 26 May 2011.  The petitioner wife, whom I shall call “C” was a Hong Kong resident whilst the respondent husband whom I shall call “Z” was a mainland resident at the material time.  After the petition was issued on 14 September 2010, C obtained an order for substituted service on 13 December 2010 on the basis that she could not locate Z.  The petition proceeded on an undefended basis and the decree nisi was granted on 6 April 2011.

4.  Z said the order for substituted service was obtained by misleading information contained in an affirmation of C of 3 November 2010 and at the material time C should have the means to contact him, including his address at Danshui in mainland China and his mainland telephone number.  He said he only learnt about the divorce when he arrived in Hong Kong by way of a Single Entry Permit on 28 January 2012 and detained by the Immigration officer.  He sought to set aside the decrees absolute and nisi.  He applied for leave to appeal in the Family Court by a summons of 20 February 2012.  Leave was granted by Judge Chu on 31 July 2012.  Despite her grant of leave, in her written Ruling of 9 August 2012, Judge Chu raised some queries with regard to the power of the Family Court to grant leave in this sort of situation.

5.  Since the question of leave may go to the jurisdiction of this court to entertain the appeal, I shall deal with it first before I turn to the merits of the case.  In the course of doing so, I shall also deal with some procedural considerations and the options open to the Family Court in similar cases.

6.  There are three preliminary considerations before an appeal against a decree absolute made by the Family Court can be entertained by the Court of Appeal.  First, by reason of s 14(3)(d) of the High Court Ordinance, there cannot be any appeal against a decree absolute unless the appellant did not have an opportunity to appeal from the decree nisi.  The English practice is to obtain a declaration to that effect before an appeal can be lodged, see Rayden & Jackson on Divorce and Family Matters,2005 ed,para [T 51.118].  The application for such declaration is to be made to the court granting the decree, see Clark v Clark [1996] 1 FCR 125.

7.  In respect of an appeal from a decree made by the Family Court which is part of the District Court, the second requirement is the leave requirement under s 63 of the District Court Ordinance, see our recent judgment in CWH v CWY, CACV 221 of 2012, 15 May 2013. 

8.  Thirdly, if the application for leave is made outside the time limit set out in Order 58 rule 2(4) of the Rules of the District Court (which applies to appeals from orders made by the Family Court in matrimonial proceedings, see Order 1 rule 2(2A)(b) of the Rules of the District Court), an extension of time has to be sought under Order 58 rule 2(10). It is clearly provided by rule 2(10) that both the District Court (thus including the Family Court) and the Court of Appeal have the power to grant extension even after the expiry of the original time limit.

9.  In her written ruling, Judge Chu was concerned about her power to grant extension of time by reason of the commentary at para 59/16/4 of Hong Kong Civil Procedure 2013 Vol 1.  That commentary was made by reference to Order 59 rule 16(2) of the High Court Rules which refers to “the period of 6 weeks specified in rule 4”.  That is obviously dealing with an appeal from a decree granted by the High Court for which the time for appeal used to be 6 weeks from the pronouncement by reading rule 4(1)(c) together with rule 16(2)[1].  It obviously has nothing to do with an appeal from the Family Court which is governed by rule 4(4)(a), viz. 7 days after the date on which leave to appeal is granted.

10.  As explained above, the position with regard to leave application in the District Court (including the Family Court) is governed by Order 58 rule 2(10) of the District Court Rules.  The Family Court does have the power to grant the extension of time.  This applies to appeal against decree absolute as well as appeal against decree nisi.

11.  In the application for leave, no doubt the Family Court should also have regard to the first requirement, viz the requirement under s 14(3)(d) of the High Court Ordinance.  If an applicant cannot satisfy that requirement, leave should be refused.  If an applicant can satisfy this requirement, the Family Court should grant the necessary declaration.

12.  These are the procedural considerations for appeal.  There is no doubt that once the requisite leave has been granted, the Court of Appeal can entertain an appeal on the ground that a substituted service order has been wrongly obtained and an appellant has been wrongly deprived of the opportunity to contest the petition, see LCM v LYY [2003] 2 HKLRD 690; MSK v PSK,CACV 219 of 2005, 23 June 2006; FHFK v NCM,CACV 182 of 2007, 20 June 2008; L v L, CACV 98 of 2010, 2 June 2010.

13.  However, it is equally open to a respondent of the divorce petition (who said he or she had been wrongly deprived of an opportunity to contest the petition by virtue of an order for substituted service wrongly obtained) to apply to the Family Court to set aside or rescind a decree nisi or decree absolute. In Craig v Kanssen [1943] 1 KB 256, it was held that failure to serve process where service of process is required renders an order null and void and the party affected by such order can apply to the court making the order to have it set aside without any need to appeal from it. In Everitt v Everitt (No 2) [1948] 2 All ER 545, Lord Merriman P summarized the principle as follows at p.546H to 547A,

“It is well settled that a judgment obtained against a party in his absence owing to his not having been served with the process is not merely voidable for irregularity but is void as a nullity: see Craig v Kanssen, and the cases there cited. Manifestly, this general principle applies with full force to a judgment affecting the status of the party: Marsh v Marsh [1945] AC 271.”

14.  This principle has been applied in the context of applications to the first instance court to set aside a decree absolute: Woolfenden v Woolfenden [1948] P 27; Ali Ebrahim v Ali Ebrahim [1983] 1 WLR 1336; Manchanda v Manchanda [1996] 1 FCR 733; Moynihan v Moynihan (No 2) [1997] 2 FCR 105; Dennis v Dennis [2000] Fam 163.

15.  In LCM v LYY [2003] 2 HKLRD 690 at paras 21 to 23, Yuen JA was of the view that s 18 of the Matrimonial Causes Ordinance [“the MCO”] may have the effect of barring such a course being adopted.  Her Ladyship only expressed a tentative view[2] and she came to that view based on the tentative view of Lord Merriman in Everitt v Everitt (No 2) [1948] 2 All ER 545 cited at para 22 of her judgment.

16.  If one refers to Everitt v Everitt (No 2) [1948] 2 All ER 545, what Lord Merriman said immediately after the passage quoted by Yuen JA was as follows,

“For a motion to a judge after decree absolute, and, indeed, after re-marriage, there is a precedent in Woolfenden v Woolfenden [1948] P 27, but, as has already been seen, no precedent has been found for an application under r 36 after decree absolute. In my view, it is unnecessary for the purposes of this case to decide whether either of these alternative methods of setting aside this decree absolute would have been open to the husband, and any opinion on the point would, therefore, be obiter.”

17.  Since then, as mentioned above, there has been a long line of cases showing that it is open to a party affected by such a decree absolute to apply to the court granting the decree to have it set aside.  The English equivalent of s 18 of the MCO was not regarded as an obstacle to such a course.  Yuen JA did not have the benefit of having those cases cited to her.

18.  With the greatest respect, I do not think s 18 of the MCO (which provides for the right of a party to remarry after a decree absolute) has the effect of preventing an application to be made to the Family Court for setting aside/rescinding the decree absolute and decree nisi by a party who had not been given notice of the petition due to an order for substituted service wrongly made.  Neither do I think the tentative observation of Yuen JA in LCM v LYY [2003] 2 HKLRD 690 prevents such course from being taken.

19.  There are obvious reasons why normally such an avenue should be preferred to the lodging of an appeal to the Court of Appeal. First, it would offer a less costly and more efficient resolution of the validity of the decrees: there is no need to apply for leave and then if leave is granted to wait for an appeal to be prepared and then listed for hearing.  Second, as demonstrated in the present case (which apparently has not occurred in the earlier local cases where the matter was dealt with by way of appeal) there could be dispute of facts which necessitates the court to hear oral evidence and cross-examination of the witnesses.  Though the Court of Appeal may take that course in exceptional circumstances, it would not do so in the normal course of hearing appeals.  Third, in cases where finding of facts have to be made, if the task is undertaken by the Court of Appeal, it would effectively substantially undermine the right of appeal against such finding by a litigant since the right of appeal to the Court of Final Appeal is constrained by s 22 of the Hong Kong Court of Final Appeal Ordinance.

20.  Coming back to the present appeal, leave has been granted by Judge Chu.  Though she did not address the s 14(3)(d) question, it is plain that if one accepts Z’s case on the lack of notice about the divorce proceedings prior to the decree absolute, the requirement under that sub-section is satisfied.  At the hearing, this court took the unusual course of hearing the evidence of the parties with cross-examination instead of staying the appeal and directing the matter to be remitted back to the Family Court as an application to set aside the decrees.  We took such a course because we did not wish to put off the determination of the question regarding Z’s marital status when he arrived in Hong Kong on 28 January 2012 and previously the availability of the various procedural options (as discussed above) had not been that clear.  In such exceptional circumstances, in order to do justice to the parties, we decided the better course was to hear the evidence in the Court of Appeal.  We must emphasize that this is a most unusual course and given our elucidation of the law on the other option we expect the Family Court to consider with the parties whether an application for setting aside the decree is the more appropriate option when an application for leave to appeal is made.  Further, even if for some reasons the matter has to be pursued by way of appeal, we would expect the Family Court to resolve the factual disputes (which would be necessary for deciding whether s 14(3)(d) is satisfied) before leave to appeal is to be granted.  It is unlikely that this court would take on the task of hearing evidence in the course of such an appeal.

21.  Turning now to the facts of the case: the parties married in Hong Kong on 30 May 2006.  At that time, Z was a resident of mainland China and C was a Hong Kong resident. After the marriage, Z visited Hong Kong from time to time by two-way permits.  There is no child born out of the marriage. In mainland China, Z had a residence at Danshui.  C had visited Z at his residence at Danshui on several occasions. Their relationship deteriorated in 2009.  It is common ground that since February 2010, Z stayed in the mainland until he visited Hong Kong on 28 December 2011 on a travel visa.

22.  On 14 September 2010, C issued the petition seeking a divorce on the ground of behaviour.  She made an application for substituted service on the basis that she could not locate Z.  In her Affirmation of 3 November 2010 filed in support of that application, she said Z left the matrimonial home in Hong Kong on 24 September 2009 after a heated quarrel.  He returned for a week in February 2010 and left home again taking all his belongings with him. She tried to contact him without success.  At para 3 of the Affirmation, she said,

“I tried to call his mobile phone number but the number was no longer in use. Since then, I have not seen or heard from [Z].”

23.  She also deposed to steps taken by her to locate Z at his residence in Danshui. At para 11, she said,

“In March 2010, I had asked my friend to locate [Z] at the rented flat in Danshui. My friend found that [Z] had moved out of the premises. The landlord of the premises did not know the whereabouts of [Z].”

24.  At para 15, she said Z’s whereabouts was unknown to her.

25.  Based on such evidence, an order for substituted service was made by the Family Court on 13 December 2010 by advertisement of notice of proceedings once in Wen Wei Po, a Chinese newspaper published and circulated in Hong Kong and mainland China.

26.  When C gave evidence before us, she was cross-examined by Mr Clough (appearing for Z) with regard to her evidence in this affirmation.  We also heard evidence from Z and we have considered his evidence in his affirmations.  It transpired that her evidence in the affirmation is, to say the least, inaccurate in the following respects,

(a) She testified in the witness box that after Z had left in February 2010, she was able to contact Z through his mobile phone number on the 4^th day of the Lunar New Year in 2010. He talked to her over the phone but, according to her, he refused to tell her where he was.  After that call, she could not contact him by that phone number again because it was either someone else who answered by saying wrong number or the line could not get through;

(b) According to her, it was only after the decree absolute that she had telephone conversations with Z again on that number.  She said Z suddenly called her again in September 2012;

(c) Z produced evidence including records from the telephone company showing that the mobile phone account had continuously been in use by him since 3 January 2007 until 2012. There were also records of phone calls between this number and C’s phone numbers between September and December 2011.  He said he could not obtain earlier records due to the policy of the telephone company of not keeping records earlier than that;

(d) Whilst appreciating that telling a lie in an affirmation is a serious allegation, on the balance of probabilities, we accept the evidence of Z that his mainland mobile number had not been cut off and that in 2010 and 2011 C was able to contact him by that number.  In that respect, para 3 of the Affirmation of C was misleading;

(e) As regards the address at Danshui, C testified in the witness box that she actually went there with her nephew on the 4^th day of the Lunar New Year  2010 to locate Z but she could not find him there.  She said she had asked a person (she did not know whether that person was the landlord or otherwise) and she was told that Z had left and he did not know where Z was;

(f) She also testified that in the phone conversation she had with him after her visit to Danshui on that date, Z told her he had moved;

(g) But these were not the evidence she gave at para 11 of her Affirmation: at that paragraph, she did not mention she herself had visited the place; she described the person to whom her friend spoke as “the landlord”; she did not mention Z himself told her on the phone that he had moved;

(h) In contrast, apart from his own evidence, Z also produced evidence from his landlord and rent receipts showing that he had continuously been living at the address at Danshui;

(i) It is difficult to see why C would tell a different story at para 11 if the truth was what she deposed to in the witness box.  In particular, I cannot understand why C did not mention in her affirmation that Z had told her himself over the phone that he had moved to another address. On the balance of probabilities, I find on the evidence that Z had continued to reside at the address at Danshui and para 11 was misleading;

(j) As a result, para 15 of the affirmation was also misleading;

(k) C also said she did not know the exact address at Danshui though she knew how to get there. In my view, that is not an excuse for not making an effort to get the exact address by making the necessary inquiries at Danshui since she obviously knew where the place was.

27.  A party who seeks an order for substituted service makes the application on an ex parte basis.  The other party is not heard in such application and has no opportunity to present his or her side of the story to the court.  In such circumstances, the applicant must give full and frank disclosure of all material facts in the application.  It is clear from the above conclusions that C had failed in the discharge of such duty.   I am of the view that had the true picture been shown to the court, the court would not have granted the order for substituted service.  It was an order improperly obtained and it must be set aside.  In the circumstances, the petition had not been properly served and Z had been wrongly deprived of his right to contest the petition.  The decrees nisi and absolute must also be set aside.

28.  The parties also gave evidence about other matters: the possibility of contact over the QQ forum over the internet; the visit of Z to Hong Kong on 28 December 2011; C’s signing of documents at the Public Security office at Hui Dong on 6 January 2012 and Z’s detention by the Immigration officer upon his coming to Hong Kong by way of Single Entry Permit on 28 January 2012.  I do not find it necessary to make finding of facts as regards such matters in this appeal. Given the above conclusions and the outcome of this appeal, the petition would have to be tried at the Family Court and I will not pre-empt any finding that the trial judge may make in those matters. 

29.  I propose to allow the appeal and order the decree nisi and decree absolute to be set aside.  I would also set aside the order for substituted service. The orders made on 6 April 2011 for nominal maintenance would also be set aside.  The petition shall be remitted back to the Family Court.  The Family Court shall give directions to the parties for the future conduct of the petition.

30.  It is up to the parties to consider whether the petition could be resolved by means other than a contested divorce.  Once the decrees are set aside, Z has secured his status supporting his Single Entry Permit. There are certainly better ways to resolve the differences between the parties and I would strongly urge them to consider trying mediation.  In that regard, they can approach the Family Court Mediation Co-ordinator’s Office for assistance.

31.  On the costs of the appeal, I would order that C shall bear Z’s costs of the appeal, such costs to be taxed if not agreed.  But I would also order that such costs shall not be taxed until the conclusion of the matrimonial proceedings under the petition.  Z’s own costs are to be taxed according to Legal Aid regulations.