CYK v. LYK

FCMC 16337 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 16337 OF 2012

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J U D G M E N T

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Application

1.  This is an application by the Respondent husband (“the Husband”) to set aside all decrees, orders, and judgments obtained by the Petitioner wife (“the Wife”) out of time on grounds of bad/ineffective service, or alternatively, on the ground of material non-disclosure by the Wife.

Background

2.  The parties were married in 1998.  Three children were born to the marriage.  On 1 November 2012. The Wife filed a petition (the “Petition”) for divorce on the ground of unreasonable behavior.

3.  The Petition was undefended and a decree nisi was granted on 30 January 2013.  The decree was made absolute on 24 April 2014.

4.  After 3 First Appointment hearings (on 21 January, 17 April and 28 June 2013 respectively), the trial for ancillary was fixed to be heard on 6 November 2013.  The trial was subsequently adjourned to 12 March 2014 as the Wife was not ready for trial at the time. 

5.  At each of the hearing, the Court had specifically required the Wife to personally serve on the Husband the respective orders for hearings. These Orders were all in Chinese and all endorsed with penal notices.  The Husband was absent from all of the hearings.

6.  The trial for ancillary relief took place in the Husband’s absence.  The Court gave judgment on 16 April 2014 (the “Judgment”). The Husband was ordered to transfer a flat on Un Chau Street, Kowloon (the “Matrimonial Home”) to the Wife (the “Property Transfer Order”).

7.  On 9 October 2015, the Wife applied for an Order for the Husband to deliver up the Matrimonial Home pursuant to the Property Transfer Order. 

8.  On 29 January 2016, by way of an ex parte application, the Wife applied for a writ of possession in order to enforce the Property Transfer Order.  On 1 February 2016, the Court granted leave for the writ of possession to be issued.

9.  On 19 April 2016, the bailiff delivered vacant possession of the Matrimonial Home to the Wife.

10.  The Husband alleges that it was only at this time (i.e. 19 April 2016) that he became aware of the divorce proceedings instituted by the Wife.  He then filed a Notice to Act through his solicitors Messrs K. B. Chau & Co. and entered appearance for the first time in these proceedings.

11.  On 14 July 2016, the Wife took out an application seeking for transfer documents to be executed to facilitate the transfer of the Matrimonial Home pursuant to the Judgment.

12.  On 17 August 2016, the Husband took out the present application to set aside all decrees, orders and judgments in these proceedings.

The Husband’s case

13.  In his various affirmations, the process server deposed that he had personally served various documents on the Husband on 8 different occasions.  The Husband’s case is that the process server had mistakenly served the divorce documents on someone else from beginning to end, and that he was never personally served.

Common Ground

14.  The parties agree that should the Court find that there was ineffective service of the documents, procedurally, the Respondent should apply to set the relevant orders and judgment aside, rather than appeal against it.  Everitt v Everitt (No.2) [1948] 2 All ER 545

15.  The parties also agree that if the Court ultimately finds that service was ineffective, time for setting aside should be extended under Order 35 of the Rules of the High Court.

Whether service was effective

16.  The parties agree that service of the Petition needs to comply with Rule 14 of the Matrimonial Causes Rules (Cap 179A). 

17.  Rule 14(1) provides that:

“subject to the provisions of this rule, a copy of every petition shall be served personally or by post on every respondent or other party to the proceedings.

18.  Rule 14(7) provides that:

“Where a copy of a petition has been served on a party personally and no acknowledgment of service has been returned to the registry, service shall be proved by filing an affidavit of service showing the server's means of knowledge of the identity of the party served.”

19.  The sole issue of dispute is identification of the Husband.  There is no allegation that the Husband deliberately refused service or that he received the documents but he did not know the contents and effects of such documents.

20.  Practice Direction 15.1 provides that:

“Under r.14(7) of the Matrimonial Causes Rules (Cap.179) where a petition is served personally on the respondent spouse and no acknowledgment of service is returned to the court office, the affidavit of service must show the server's means of knowledge of the identity of the person served.

Identification may be:

(a) by means of a photograph exhibited to the affidavit, and proved at the hearing to be that of the respondent; or

(b) by the personal knowledge of the process server, the petitioner or some other person present that the person served is the spouse of the petitioner; or

(c) by the admission of the person served that he is the spouse of the petitioner.”

21.  Personal service of all the documents on the Husband were purportedly carried out by the same process server, Mr Tang.  Mr Tang has been a process server since April 1980 and has served in the same firm of solicitors as a process server for 36 years. 

1^st Personal Service

22.  During oral testimony, Mr Tang confirmed that on 6 November 2012, the first occasion of personal service of the Petition and other ancillary documents on the Husband, he went to the shop at which the Husband was working in Cheung Sha Wan.  Mr Tang identified the shop both by way of its address and by way of the distinctive apple sign on the logo of the shop. There is no challenge that on this occasion, Mr Tang identified the correct shop at the correct address.

23.  Mr Tang then went on to describe how he identified the Husband.  He said that he first looked at a photograph of the Husband (provided by the Wife) and asked a man, who was the only person sitting at the counter of the shop, whether LYK (the Husband) was there.  The man admitted to Mr Tang to be LYK, i.e. the Husband.  Mr Tang then looked at the photograph again to confirm the identity of the Husband.  He then advised him that there were some divorce papers for him, and asked him to check if that was his name on the documents.  Upon confirmation, Mr. Tang advised him to complete and send back Form 4 and to return it to the Court, otherwise a decree for divorce might be granted against him.

24.  Mr Tang recalled that the Husband did not respond much and simply confirmed that it was his name on the documents.

25.  The photograph that Mr Tang relied upon was exhibited as evidence.  The Husband never alleged in his affirmations that the photo was not a true likeness of the Husband.  In fact, Mr Tang easily identified the Husband in Court during the hearing without any aide-memoir.

2^nd Personal Service

26.  On the second occasion of personal service on 7 February 2013, Mr Tang proceeded to personally serve a Decree Nisi and various orders of the Court on the Husband.  Mr Tang recalled that he arrived at the same shop and asked the female shop assistants in the shop whether LYK was there.  One of the female shop assistants pointed to the inside of the shop and Mr Tang went inside to find the Husband. 

27.  This time, Mr Tang did not bring along a photograph as he said he had already met and talked to the Husband before and he did not require any assistance to identify him.  When he located the Husband, Mr. Tang once again asked if he were LYK to which the Husband answered yes.  Mr Tang then briefly explained the content of the documents to the Husband (namely, that there was a penal notice, he could be arrested and that custody of the children and matrimonial properties might be awarded to the Wife) and left the documents with him. 

28.  Mr Tang gave evidence that the Husband used foul language on him when he told him about the possibility of an arrest.  When challenged on why he did not mention this incident in his affirmation of service, Mr Tang explained that at the time he was only concerned with effective service in the affirmation and he considered the incident to be irrelevant to service.

3^rd Personal Service

29.  On the third occasion of personal service on 25 April 2013, Mr Tang went to the same shop, identified the Husband, checked with him his name and upon the Husband’s acknowledgment and confirmation to be LYK, Mr Tang served a Chinese Order on the Husband.

4^th Personal Service

30.  On the fourth occasion of personal service on 17 July 2013, Mr Tang went to the same shop, identified the Husband, checked with him his name and upon the Husband acknowledging to be LYK, Mr Tang served a Chinese Order on the Husband concerning an upcoming hearing.

5^th Personal Service

31.  On the fifth occasion of personal service on 20 November 2013, Mr Tang went to the same shop, identified the Husband, and upon the Husband acknowledging to be LYK, Mr Tang served a Chinese Order on the Husband.  This Order concerned the adjourned ancillary trial.  Due to the severity of the trial, Mr Tang reminded the Husband that if he did not attend the trial as indicated, he might lose custody of his children as well as the Matrimonial Home. 

32.  Mr Tang gave evidence that after he informed the Husband of the same, the Husband rose from his seat and threatened to hit him, and used foul language asking him to leave.

6^th Personal Service

33.  On the sixth occasion of personal service on 27 February 2014, Mr Tang went to the same shop, identified the Husband, and upon the Husband’s acknowledgment and confirmation to be LYK, Mr Tang served a Chinese letter of the Wife’s open proposal on the Husband.

7^th Personal Service

34.  On the seventh occasion of personal service on 1 April 2014, Mr Tang went to the same shop, identified the Husband, and upon the Husband’s acknowledgment and confirmation to be LYK, Mr Tang served on him the Judgment of the ancillary relief trial.

8^th Personal Service

35.  On the eighth occasion of personal service on 17 April 2014, Mr Tang went to the same shop, identified the Husband, and upon the Husband acknowledging to be LYK, Mr Tang served on him a Chinese Order dated 21 March 2014.

Credibility of Mr Tang

36.  The Court finds Mr Tang to be a credible and trustworthy witness.  His testimony was unwavering, even when challenged.  He is a process server with extensive experience, which was not seriously challenged by the Husband’s Counsel.

Effectiveness of Personal Service

37.  The Husband contends that despite Mr Tang having deposed to 8 times of personal service on him at the shop, he had never admitted to be LYK nor had he ever accepted service of any document.

38.  The Husband alleges that service of the documents had all along been effected at the wrong address of “Nos. 117-121” when his shop was located at No.117 at all material times.  He contends that there were as many as 5 different shops at “Nos. 117-121” as there was shop No. 117, No. 117 A1, No. 117A. No. 121 C1 and No. 121 C2.

39.  Whilst there is no dispute that there were indeed several shops at Nos. 117-121, as pointed out by Mr Tang, there was only one shop with the same name and the same apple logo as the Husband’s shop.  There is no suggestion that the other adjacent shops had names similar enough to confuse Mr Tang.  The court rejects the Husband’s argument that Mr Tang had all along served the documents on the wrong address and/or the wrong shop.

40.  The Husband further contends that he was always away from the shop and that his employees or delivery men who would gather in front of his shops would pretend to be him and take deliveries for him.  These delivery men would sit at the reception area of his shop and give out his name cards for him.  The Husband suggests that Mr Tang might have mistakenly served the documents on his employees or delivery men instead of him, and that they had never forwarded to him any documents.

41.  The court rejects this argument. First of all, there is no evidence to suggest that any of the Husband’s employees were male employees at the material time of personal service.  It is highly improbable that Mr Tang would have mistakened a female employee to be the Husband whilst effecting service.

42.  Secondly, the first time the Husband mentioned the possibility of delivery men receiving the documents instead of him, was in his affirmation dated 6 December 2016, one week before the hearing.  He never previously mentioned in his affirmations the existence of these delivery men who could have pretended to be him and received the documents from Mr Tang.

43.  Thirdly, on a balance of probabilities, it is highly improbable that Mr Tang had mistakenly served the documents on 8 separate occasions on these delivery men, who are of ethnic minority origin, whilst the Husband is of Chinese origin.  This is especially so when Mr Tang had ascertained the identity of the person receiving the documents every time, and every time the person receiving the documents confirmed to be LYK.

44.  Fourthly, the Court accepts Mr Tang’s testimony that the Husband, upon receipt of the documents and upon Mr Tang’s explanation of them, had on two occasions used foul language on him and even threatened to hit him on one occasion.  If it had been these so-called delivery-men receiving the documents, they should not have been affected in the slightest, let alone threatened to hit someone.

45.  Fifthly, despite the Husband’s allegation that he was surprised to have learnt for the first time on 19 April 2016 that the Wife had instituted divorce proceedings against him, it took him until 8 August 2016 (nearly 4 months afterwards) to raise this argument. 

46.  The Husband tried to explain the delay by saying that he was very confused when he was ousted from the Matrimonial Home so he did not raise the issue.  However, it is unbelievable that the Husband did not mention this fact to his solicitors, who had been on record and had been in correspondence with the Wife’s solicitors since 22 April 2016.  All the solicitors did in the meantime was to liaise with the Wife’s solicitors as to the return of the Husband’s belongings and arrangements on access to the children. 

47.  If the Husband were indeed all along in the dark, he would have mentioned it at the first instance to his solicitors, who, like any competent solicitors, would no doubt have put it on record immediately. Instead, the first mention of this argument was only on 8 August 2016.  This was after the Wife took out her applications to have transfer documents executed. The Husband’s argument very much seemed like an afterthought on the Husband’s part. 

48.  Further, the Wife gave evidence that she had talked to the Husband’s parents in the presence of the Husband at the Matrimonial Home about the outcome of the ancillary relief trial some time after April 2014. The Husband’s parents indicated that they would appeal against the Judgment and that the Matrimonial Home should be divided 50/50 instead.  The Husband alleged that he did not hear the conversation despite being in the same room. 

49.  There was no challenge to the Wife’s testimony that the conversation with the Husband’s parents took place and the Court accepts such testimony.  Thus, even if the Husband did not hear the conversation (which is not accepted), it is highly unbelievable that the Husband was unaware of any of the divorce proceedings when his own parents were already aware of the Judgment.

50.  On a balance of probabilities, the Court finds that Mr Tang had successfully personally served the various documents on the Husband on all 8 separate occasions and that the Husband was all along informed and aware of the divorce proceedings.

Service of other documents by way of ordinary post of by leaving at Matrimonial Home

51.  The Court already holds that personal service of various divorce-proceedings related documents on the Husband had been successful, and that he had received notice of the matrimonial proceedings and had deliberately chosen not to participate.  It is therefore not open for him to deny the outcome of the ancillary relief trial and the consequential orders. 

52.  It is thus less relevant whether the Husband had notice of other divorce-proceedings related documents which were nor personally served, but were served at the Matrimonial Home.  However, for the sake of completeness, the Court also finds that the other documents (served up to April 2014) which were served on the Husband, were effectively served by post or by leaving at the Matrimonial Home.

53.  The Court rejects the Husband’s allegation that he never had notice of the divorce-related proceedings until the bailiff delivered vacant possession of the Matrimonial Home in April 2016.

Alleged material Non-Disclosure

54.  The Husband pointed out that the Wife had falsely stated in her Form 21(7) that she had not lived with the Husband at the same address for more than 6 months, which was not true.  He alleges this to be a material non-disclosure and that all subsequent orders were thus tainted and ought to be set aside. 

55.  Although this was admitted to be a mistake by the Wife, the Judge, during the trial was not mistaken as to this fact, as is evident in his Judgment.  This mistake or non-disclosure had not misled the learned Judge nor his Judgment.  It cannot be said that the Judgment should be overturned by reason of material non-disclosure. 

Effectiveness of Writ of Possession

56.  Upon conclusion of the ancillary relief trial, Deputy District Judge I. Wong (as he then was) made on Order that the Husband was to deliver vacant possession of the Matrimonial Home within 3 months of 28 April 2014, the date of the Decree Absolute. The said Order was personally served on the Husband on 17 April 2014, such service was, as previously held, successful.

57.  The Husband had failed to vacate the Matrimonial Home and the Wife proceeded to apply for leave to issue a Writ of Possession.

58.  Order 45 Rule 3(2) of the High Court Rules provides:

“A writ of possession to enforce a judgment or order for the giving of possession of any land shall not be issued without the leave of the Court except where the judgment or order was given or made in a mortgage action to which Order 88 applies.”

59.  Order 45 Rule 3(3) of the High Court Rules continues:

“Such leave shall not be granted unless it is shown that every person in actual possession of the whole or any part of the land has received such notice of the proceedings as appears to the Court sufficient to enable him to apply to the Court for any relief to which he may be entitled.”

60.  Mr Tang said in his affirmation that on 12 January 2016 and 14 January 2016, that he sent to the Husband a notice in two envelopes by registered post to the Matrimonial Home and to the address of the new shop on Cheung Sha Wan Road respectively, setting out the particulars of the Order and requesting vacant possession of the Matrimonial Home (the “Notice”).

61.  Mr Tang also posted the Notice at the main entrance of the Matrimonial home on 12, 13, 14 January 2016.

62.  The Husband denied having received the Notice, whether by way of registered post or by the posting of the Notice at the Matrimonial Home.  The Husband deposed that he would leave home for work from 7 am until 7 pm from Mondays to Saturdays and he never saw the Notice when he went home during those days.

63.  Subsequently, it transpired that the registered post sent to the new shop on Cheung Sha Wan Road had been returned, marked “unclaimed”.  On the other hand, the registered post sent to the Matrimonial Home was signed for by the Wife.

64.  Both of these incidents were not revealed to the Judge in the affirmation of Mr Tang dated 29 January 2016 when the Wife applied for leave to issue the Writ of Possession.  The Wife’s explanation was that such matters were not known at the time the affirmation was sworn.

65.  It is trite, and accepted by those representing the Wife that it being an ex parte application, there is an ongoing duty of full and frank disclosure, even if all information in the affirmation was accurate at the time the affirmation was sworn.  There is an ongoing duty to update the Court with any new information which might affect the Judge’s decision.  The return of the registered mail and the fact that the Wife signed for the registered mail, are material to a Judge’s consideration of whether the requisite requirement under Order 45 Rule 3(3) had been fulfilled.

66.  The Court agrees that there is doubt as to whether the Husband had received the Notice and in the circumstances, the Order dated 1 February 2016 whereby leave was granted to the Wife to issue the Writ of Possession; the Praecipe for Writ of Possession dated 17 February 2016, as well as the Writ of Possession issued on 17 February 2016 ought to be set aside.

67.  For the avoidance of doubt, this does not preclude the Wife from applying again for leave to enforce the Judgment dated 16 April 2016 and the property transfer order therein.

Conclusion

68.  The Husband applies to set aside all decrees, orders and judgments in the action.  After hearing oral evidence, the Court is satisfied that only the Orders in relation to the Writ of Possession, namely, the Order dated 1 February 2016 whereby leave was granted to the Wife to issue the Writ of Possession; the Praecipe for Writ of Possession dated 17 February 2016, as well as the Writ of Possession issued on 17 February 2016 ought to be set aside.

69.  In other words, the Husband’s application to set aside all decrees and orders from 2013 onwards has been largely unsuccessful.

70.  The bulk of the time spent at the hearing relate to service of documents prior to April 2014.  The Court finds that service of documents prior to April 2014 were all effective and that no Order or Judgment served before that date is affected or need to be set aside.

71.  Taking the matter in the whole, the Court will give an order nisi that the Husband is to bear 70% of the costs of the application, to be taxed, if not agreed.

Orders

72.  IT IS ORDERED THAT:

1) Order dated 1 February 2016 be set aside;

2) Praecipe for Writ of Possession dated 17 February 2016 be set aside;

3) Writ of Possession issued on 17 February 2016 be set aside;

4) There be an order nisi that the Respondent do bear 70% of the costs of his Summons dated 17 August 2016, such costs order to be made absolute 14 days after the date hereof.