SINGH SANDEEP v. ADITA ADILA AFRIANI

CACV 50/2020

[2021] HKCA 469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 50 OF 2020

(ON APPEAL FROM FCMC NO 809 OF 2018)

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REASONS FOR JUDGMENT

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Hon Au JA (giving the Reasons for Judgment of the Court):

Introduction

1.  This is an appeal by the respondent (“the Wife”) against a decree absolute granted by HH Judge Melloy (“the Judge”) on 4 September 2018.  In gist, the Wife’s grounds of appeal were that the decree absolute was obtained by the petitioner (“the Husband”) by fraud and without her knowledge.

2.  After hearing both parties, we dismissed the appeal at the conclusion of the hearing with no order as to costs, for reasons to be handed down later.  These are our reasons.

Factual background and procedural history

3.  The Husband and the Wife were married on 10 February 2015.  At the time of the marriage, the Wife had one child, Arjun, who was born on 9 September 2013.  Arjun’s birth certificate dated 26 September 2013 names the Husband as his father and the Wife as his mother.

4.  On 18 January 2018, the Husband presented a petition for divorce (“the Petition”) which stated that the parties had lived apart for a continuous period of at least one year since 15 June 2016 and that the Wife consented to a decree being granted.  The Petition also stated that there were no children in the family.

5.  On 20 July 2018, on the basis of the matters stated in the Petition, the Judge granted a decree nisi and made a declaration that there were no children of the family to whom section 18 of the Matrimonial Proceedings and Property Ordinance (Cap 192)  applied (“the Declaration”).  The decree nisi became absolute on 4 September 2018.

6.  The Wife fell pregnant again sometime in 2019, and gave birth to her second son, Karn, on 1 October 2019.  Karn’s birth certificate dated 14 October 2014 similarly lists the Husband as the father and the Wife as the mother.

7.  It is the Wife’s case that after knowing that she was pregnant in February 2019, the Husband has left home and she has never seen him again.  It was only in June 2019 that she discovered with shock through the Husband’s aunt that apparently the Husband had divorced her.  With the aid of the free lawyer introduced through NGO, she found out from searching the court files of the Family Court the decree absolute and the documents, including the Petition, filed by the Husband.

8.  By a summons dated 10 September 2019, the Wife applied to the Judge for leave to appeal out of time against the decree absolute and the Declaration, on the basis that the orders were procured by misrepresentations of the Husband as to, inter alia, (a) the fact of there being a one year separation, (b) the Wife’s consent to the divorce, and (c) the fact that there were no children of the family.  The Wife contended, in the alternative, that the decree absolute and the Declaration were vitiated by the Husband’s failure to serve the Petition on her.

9.  The Judge granted leave to appeal on 13 January 2020, and made a declaration pursuant to section 14(3)(d) of the High Court Ordinance (Cap 4) (“the HCO”) that the Wife had not had time or opportunity to appeal from the decree nisi on which the order was founded.  The Husband did not appear at that hearing nor did he file any evidence in opposition.

10.  By a summons dated 4 June 2020 filed with this Court, the Wife applied for leave to adduce and rely upon her affirmation dated the same date in these proceedings (“the Summons”).  She also applied for interim maintenance for children of the family at the rate of HK$10,000 per month, and maintenance pending suit for herself at the rate of HK$5,000 per month.

11.  On 30 June 2020, the Registrar for Civil Appeals directed that the Husband file and serve his affidavit in opposition to the Summons (if any) on or before 7 August 2020.

12.  The Husband did not lodge any affidavit pursuant to these directions.  As a result, the Registrar for Civil Appeals made a direction on 10 August 2020 that the Husband be debarred from filing any affidavit in opposition unless he did so by 4:00pm on 28 August 2020.  This direction was similarly not complied with.

13.  Subsequently, however, on 13 March 2021 (five days before the hearing of the appeal), the Husband wrote to the Court stating his intention to appear at the hearing and make oral submissions.

14.  At the hearing, in response to enquiries from this Court, he denied the allegations of fraud made against him by the Wife.  He however admitted that both Arjun and Karn were his children, but denied having misled the Court in stating on the Petition that there were no children of the family, claiming that the Petition and all supporting documents were prepared by a “Mr Kamal Sagar” (transliteration) in Mirador Mansions, to whom he and the Wife paid HK$10,000 for his services.  He further confirmed it was his case that the Petition was prepared by Mr Sagar on instructions of both himself and the Wife, and that the Wife had signed on the Petition.

Discussion

15.  In our view, it was procedurally wrong for the Wife to seek to set aside the Orders by way of appeal.  It has been firmly said in CFF v ZWJ (unreported, CACV 171/2012, Cheung, Kwan and Lam JJA, 27 May 2013)[1] at [12] - [20] per Lam JA (as he then was), it is more appropriate for a respondent to a divorce petition to apply to the Family Court to set aside or rescind a decree absolute in circumstances similar to the present.  Contrary to the tentative observations of Lord Merriman P in Everitt v Everitt (No 2) [1948] 2 All ER 545, 549D and Yuen JA in LCM v LYY [2003] 2 HKLRD 690 [21] - [23], Lam JA has explained that section 18 of the Matrimonial Causes Ordinance (Cap 179) did not have the effect of barring parties from adopting such a course and requiring them to proceed by way of an appeal.

16.  Indeed, it has been pointed out that an application to the Family Court should be the normal way to seek to set aside the order based on disputes of facts or allegations of fraud and is far preferable to pursuing an appeal to the Court of Appeal.  Lam JA explained this at [19]:

“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.”

17.  On the facts of CFF, this Court decided on an exceptional basis that it would hear the evidence in the Court of Appeal, but emphasized that this was a most unusual course, justified in part because it was previously unclear whether one could proceed by way of an application to the Family Court.  However, Lam JA again made it clear at [20] that in the future, the normal and most appropriate option is for the applicant to apply to the Family Court to set aside the decree absolute:

“20. …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.” (emphasis added)

18.  In our view, the present case exemplifies all the problems identified by Lam JA in challenging by way of an appeal a decree absolute which was allegedly fraudulently obtained.  The Wife’s decision to proceed by way of appeal meant that she had to expend additional costs in making an application for leave before the Judge as required by section 14(3)(b) of the HCO.  The delays inherent in the process meant that the appeal was only to be heard a full 1.5 years after the Wife first made her application for leave in September 2019.  In our view, this is a highly unsatisfactory state of affairs.

19.  Further, and more importantly, by the time of the hearing of the appeal, there was a dispute of fact which this Court is institutionally ill‑equipped to resolve.  We were also handicapped by the absence of any factual findings made by the Judge in respect of the allegations of fraud.

20.  Mr Marwah[2] for the Wife however sought to justify the application by way of an appeal by pointing out that at the time when the Judge dealt with the application for leave, there was no challenge to the veracity of the Wife’s allegations as the Husband did not file any evidence or appear to oppose the application.  We do not think this justified the Wife proceeding by way of appeal.  Quite to the contrary, if that is the case, more so the proper course would be for the Wife to apply to set aside the decree absolute before the Judge, so that much time and costs would have been saved.

21.  Hence, to echo and reiterate the observations made in CFF as quoted above, given the requirement for leave under section 14(3)(b) of the HCO and the time and expense necessitated by such an application, and the possibility that (as in this case) factual disputes may only become apparent after leave to appeal is granted, it is generally inappropriate for parties seeking to set aside a decree absolute said to be obtained by fraud, misrepresentations or the absence of service by way of appeal.  This is so regardless of whether there is any dispute between the parties as to the underlying allegations of fraud or procedural irregularity.

22.  Returning to the present case, it is obviously unsatisfactory that the Husband only raised his factual allegations at the last minute in unsworn form, in breach of the directions given by the Registrar for Civil Appeals.  However, we do not think it is possible to disregard his latest allegations on this basis alone.  Prima facie, therefore, there is a factual dispute as to the circumstances in which the decree absolute and the Declaration were granted, in particular given his contention that the Wife indeed gave instructions to Mr Sagar together for filing the Petition and signed on it.

23.  Mr Marwah further submitted that, notwithstanding what the Husband had alleged at this hearing, there were still sufficient grounds for this Court to set aside the Judge’s orders.  In his submission, given the Husband’s admission that he had fathered Karn, it can be inferred that he continued to have a sexual relationship with and thus continued to cohabit with the Wife during the one year period prior to the Petition during which they had allegedly been separated.  This went to the Judge’s jurisdiction to make the orders sought.

24.  In our view, we do not think this is the effect of the Husband’s admissions.  All the Husband admitted was that he was the father of Karn.  He did not accept that he had an ongoing sexual relationship with the Wife or that he was cohabiting with the Wife during the one year period leading up to the Petition.  In any event, one cannot draw the inferences for which Mr Marwah contends on the basis of the fact the Husband admitted that he had fathered Karn alone, given that Karn was apparently only conceived well after the Petition was presented (in January 2018).  However, this is a moot point, since it involves precisely the sort of factual inquiry which the Court of Appeal should not be required to conduct.  Given Lam JA’s cautionary remarks in CFF, we do not see any exceptional circumstances requiring this Court to depart from the usual practice of not resolving factual disputes which require the hearing of fresh and live evidence.

25.  Mr Marwah also relied on the Judge’s declaration in her order granting leave to appeal that the Wife had not had time or opportunity to appeal from the decree nisi, which in his submission amounted to a conclusive finding that the Wife had no knowledge of the proceedings in the Family Court.  However, in view of the unhappy procedural history of this case, the Judge was not asked to consider the Husband’s version of events, and thus cannot be treated as having made any findings in respect thereof.  In the circumstances, we do not think it is possible to rely on the Judge’s declaration as a conclusive finding of fact for the present purpose.

Interim maintenance and maintenance pending suit

26.  In view of our conclusions above, it is unnecessary for us to deal with the Wife’s applications for interim maintenance and maintenance pending suit.  We wish however to point out that Mr Marwah sought to rely on section 13(4) of the HCO to submit that this Court in hearing this appeal on the setting aside of the decree absolute has the jurisdiction to also make an order for the interim relief as sought.  In this respect, in light of the authority of Cavendish-Bentinck v Cavendish-Bentinck [1948] 2 All ER 280 at 287 per Bucknill LJ, we have doubt as to whether the reliefs sought could constitute an issue which is for the “purpose of or incidental” to the “hearing and determination” of this appeal to fall within that jurisdiction as prescribed in the provision[3]. However, as we did not hear full argument on this point, we shall refrain from expressing any further views on the matter.

Conclusion

27.  For all the above reasons, we dismissed the appeal.  In view of the lateness of the Husband’s opposition to the factual matters stated in the Wife’s affirmation, we made an order that there be no order as to the costs of the appeal, and that the Wife’s own costs be taxed in accordance with the Legal Aid Regulations (Cap 91A).

28.  As we made clear at the hearing, the dismissal of the appeal was without prejudice to the wife making an application to the Family Court to set aside the decree absolute.