FWP v. CYMA

HCMP 946/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 946 OF 2005

(ON AN INTENDED APPEAL FROM FCMC NO. 4515 OF 2002)

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D E C I S I O N

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1.  As appears from the transcript, in the afternoon of 28 February 2005, on the first day of a contested divorce hearing, the petitioner had informed the court that the respondent would no longer contest the petition and that she had agreed to pay $40,000 towards the petitioners’ costs.  That was confirmed by the respondent to the Deputy Judge.  Thereupon the proceedings proceeded as if it was undefended.  This exchange between the Deputy Judge and the respondent appeared at page 35 of the transcript:

「答辯人： 我明白，法官大人。

官： 係，而妳確認不再抗辯呈請人嘅申請喇，離婚嘅申請，同埋呈請人就有關嘅訟費，妳係會負責40,000鈫嘅？

答辯人： 係。

官： 法庭現作出雙方所協議嘅兩個條件，就係第一、答辯人不再提出呈請人呈請離婚嘅抗辯；第二、就係呈請人訟費其中40,000鈫係由答辯人負責嘅。多謝咁多位，張小姐，應該放低嘅嘢就要放低喇，我好多謝妳咁合作。

MR YIM: 多謝，法官閣下。

答辯人： 多謝法官。」

2.  The formal decree nisi dated 28 February 2005 was filed on 22 April 2005.

3.  This is the respondent’s application for leave to appeal from that order.  The respondent has also applied for an extension of time.  However, I will deal first with the respondent’s application for leave to appeal.  It seems to be the respondent’s case that either she did not know that she had agreed to allow the petition to go undefended or that she allowed it to go undefended because she was afraid that she would not be able to pay the petitioner’s costs in the event that the petition should go against her.  She has also suggested that she had been misled by the petitioner’s lawyer into not defending.  I believe the crux of her complaint is that she had not allowed the petition to go undefended.  But as the extracts from the transcript shows she knew what she was doing and there was no misunderstanding.  The respondent is a well educated and articulate person.  I believe that she was fully aware of what she was doing and that she decided not to defend the petition. 

4.  She claimed the transcript had missed out the following exchange:

「2.    我上訴其中一個理由是給丈夫律師誤導將我個Defended case轉做Undefended case，理由是根據法庭錄音Transcript Page 34M (Bundle117) 當 Mr Yim 講完話張個案轉做undefended。當時法官已經用奇異口吻答：“Undefended，需要咩？係咁架？”（當時法官是望著我講）我答她：“我吾識，問佢地！”（我唔明白為何我講這句‘我吾識，問佢地’冇錄音，我好肯定我有講過這句說話）跟住Mr Yim繼續。

3.    我在完全沒有防犯之心態下回答，（吾知整個個案會變左）。在開庭前丈夫律師曾問我想點審？我在毫無防犯下說：我唔識，你決定喇！」

I do not accept that to be so.  But even if so, that having regard to the clear exchanges I have already quoted and other passages showing discussion about ancillary reliefs after the divorce was allowed to go undefended, I do not believe that the missing passage showed that she did not know what was going on.

5.  Ms Anita Yip, counsel for the petitioner, submitted that in any event the respondent ought to have applied under the Rule 55 of the Matrimonial Causes Rules for a rehearing instead of seeking leave to appeal.

6.  That is correct.  However, because the respondent is unrepresented, I would go on to consider whether she has a viable appeal. 

7.  I am of the opinion that there is no viable appeal.  The grounds of appeal that she wishes to rely on are as follows:

「	a)	丈夫申請離婚時分居未滿2年。
	b)	本人反對鐘點女傭伍燕霞女士作為証人。
	c)	丈夫患了心理病多年，他離婚的決定是不合天理人情。
	d)	面對嚴重經濟困境，三個兒女的龐大教育經費。
	e)	我和3個孩子因為我們婚姻的終結而受到親戚朋友所歧視及排斥。
	f)	Written Submissions of the Petitioner by Counsel Eugene Yim – 我在2月26日中午時份才收到，當時我根本沒有足夠時間去閱讀及分析，本人在2005年5月5日的第6份誓章（Exhibit AC – 2），第16至26項已經解釋反對理由。」

8.  The first 2 grounds should have been raised before the Deputy Judge.  They cannot be raised on appeal.  The other grounds also cannot succeed.  On financial hardship, the petitioner is a medical doctor in private practice so there is no question of the loss of a widow’s pension in this case.  In any event, the respondent and the children receive interim maintenance in the sum of $90,000 per month.  No doubt long term financial provision for the respondent and the children will be dealt with in the application for ancillary relief. 

9.  Another point relied on by the respondent is that it does not appear on the transcript that the Deputy Judge actually pronounced the decree nisi in open court.  I do not think that goes to the validity of the order which was eventually drawn up.  It was obvious that on the evidence the Deputy Judge was satisfied that an order nisi should be made.  A formal order nisi was drawn up and filed.

10.  So I would not grant leave to appeal in any event.  It also follows that I would not grant leave to appeal out of time. 

11.  I also order the respondent to pay costs of the application to the petitioner.  Such costs to be taxed unless agreed.  This order will take effect 14 days from today unless during that time either party applies to the court for a different order.