S v. B

HCMP 1837/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1837 OF 2012

(ON AN INTENDED APPEAL FROM FCMC NO. 12719 OF 2008)

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BETWEEN

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

1.  On 14 September 2009, a decree nisi of 22 July 2009 declaring the marriage between the petitioner wife and respondent husband to have been by law void was made absolute. The basis of the decree nisi (which was granted by B. Chu DJ) was that the husband was in fact already married to another woman, named Veronica, at the date of the purported marriage to the wife.

2.  After a period of nearly two years, the husband, who is acting in person, took out a summons dated 21 May 2012 seeking leave to appeal against the decree absolute.  The basis of the application was said to be that the marriage between the husband and Veronica was itself never lawful as decreed by Melloy DJ in other proceedings, the basis of that decree nisi (dated 23 November 2011) being that Veronica was herself married to another man when she purported to marry the husband.  The application for leave also requested that the case, presumably the leave application, be transferred from B. Chu DJ to another judge on the grounds of “bias, misconduct of a judge and discrimination [sic], breach of judicial ethics”.

3.  By her Ruling dated 16 August 2012, B. Chu DJ (to whom I shall hereinafter refer to as the Judge) refused the recusal application and dismissed the husband’s application for leave to appeal the decree absolute.  She did so on the basis that s. 14(3)(d) of the High Court Ordinance (Cap. 4) precludes an appeal:

“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.”

4.  The Judge followed LCM v LYY [2003] 2 HKLRD 690, a decision of this Court (differently constituted) which held that s. 14(3)(d) applies also to orders made by the District Court.  She went on to hold that the husband had had the time and opportunity to appeal from the decree nisi but had failed to do so.  In the circumstances, the Judge concluded that no appeal lay from the decree absolute.  She went on to hold that, even if she had power to extend time, in view of the circumstances of the case, the proposed appeal did not have a reasonable prospect of success and she would not exercise any power to grant leave to the husband to appeal out of time.

5.  The husband has, by a summons dated 29 August 2012, renewed his application for leave to appeal against the decree absolute to this Court.  That application makes it clear that the application is for leave to appeal out of time against the decree absolute of 14 September 2009 and that the grounds are:

“Judge Chu made false statements as did plaintiff in her petition for nullity. See attached documents.”

The summons is accompanied by an affirmation of the husband also dated 29 August 2012.  By a further affirmation dated 30 August 2012, the husband has exhibited some 97 pages of material.

6.  In opposition, the wife, who is represented by solicitors, filed a statement in opposition to the application on 11 September 2012.

7.  On 17 September 2012, the husband filed a further affirmation in reply to the wife’s statement in opposition.

8.  Pursuant to RHC O.59 r.2A(5)(a), this Court may determine an application for leave to appeal on the basis of written submissions only. We are satisfied that it is appropriate for us to do so in the present case.

9.  The short and complete objection to the husband’s application for leave to appeal out of time is that the husband had the time and opportunity to appeal from the decree nisi but did not do so. Therefore, an appeal is precluded by reason of s. 14(3)(d) of the High Court Ordinance, the legislative intent of which is plainly to bring finality to matters to which it applies.

10.  As to the question of the husband having had the time and opportunity to appeal, the following circumstances are material.  The hearing of the petition for the decree nisi was fixed to be heard on 22 July 2009.  The husband was aware of this hearing because he sent a letter to the Court, received on 18 July 2009, applying to postpone that hearing.  No adjournment was ordered and so there is no basis for the husband to contend that he thought the hearing would not proceed, nor does he do so in the materials he has filed.  Similarly, there would be no basis for the husband to think that, if he did not attend at the hearing of the petition, the decree nisi would not be made.  The husband has never suggested that he was not aware that the decree nisi would have followed from the hearing which he knew was to take place on 22 July 2009.

11.  The answer proffered by the husband to the s. 14(3)(d) point is not that he did not know that the decree nisi had been made but instead is that he did not have an opportunity to file an appeal against the decree nisi because he did not have a decree of nullity in respect of his earlier marriage to Veronica.  This point is without substance and we reject it.  The opportunity to appeal, for the purposes of s. 14(3)(d) existed, regardless of whether the husband had the decree of nullity in respect of his marriage to Veronica.  Contrary to the husband’s contention, the opportunity to appeal in s. 14(3)(d) does not exist only when the evidence in support of such an appeal has been obtained, still less that it only exists when it is shown that the party seeking to appeal would win such an appeal.  The husband could have appealed against the decree nisi in anticipation of his obtaining the decree of nullity in respect of his marriage to Veronica, applying if necessary in his appeal for an adjournment pending his obtaining that decree of nullity.

12.  The ratio of LCM v LYY (above) that s. 14(3)(d) applies also to an order made by the District Court is binding on this Court unless we are satisfied it is plainly wrong (see A Solicitor v The Law Society (2008) 11 HKCFAR 117 at §45).  We do not think it is wrong and we must therefore follow it.

13.  So far as the facts of that case are concerned, it was admitted in LCM v LYY that the husband in that case had misled the court as to the service of the petition on the wife.  The fraud there went to the very foundation of the wife’s opportunity to appeal against the decree nisi.

14.  Although there are allegations of fraud and perjury against the wife in the present case, they do not impinge on the wife’s entitlement to rely on the apparent marriage of the husband to Veronica as the basis for her petition for nullity.  The allegations relate to other issues, not relevant to the issue of whether the husband had the time and opportunity to appeal the decree nisi.  It is therefore not necessary to address them further in this judgment.

15.  Finally, we see no basis for suggesting that the Judge below was wrong in her decision not to recuse herself from hearing the husband’s application for leave to appeal.  The husband clearly disagreed with certain rulings that the Judge made in the course of the proceedings but that does not support the allegations of bias, misconduct, discrimination and breach of judicial ethics which were made against her, all the more so since these allegations were unparticularised and vague.

16.  For these reasons, we dismiss the husband’s summons applying for leave to appeal.  Further, since we consider the application to be totally without merit, we make an order pursuant to O.59 r.2A(8) that no party may request this determination to be reconsidered at a hearing inter partes.

17.  The wife is entitled to the costs of the husband’s summons, and we make an order nisi to this effect.  It is appropriate to assess those costs on a gross sum basis.  We direct the wife’s solicitors to submit a bill of costs within seven days hereof and give leave to the husband to submit his response to that bill within seven days thereafter.