DT v. SR

CACV 128/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 128 OF 2011

(ON APPEAL FROM FCMC NO. 1703 OF 2009)

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J U D G M E N T

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Hon Yuen JA (giving the judgment of the Court):

1.  In FCMC1703/2009, DT (“the wife”) applied for a petition for divorce from SR (“the husband”) on the ground that the parties had separated since December 2006.

2.1   She made an application for substituted service, supported by 2 detailed affirmations made by her on 16 February 2009 and 27 February 2009 explaining how she had lost all means of contact with the husband.  Substituted service was granted by Deputy District Judge Tracy Chan on 3 March 2009.

2.2 No defence to the petition was filed. 

2.3 On 23 July 2009 a decree nisi was granted by Deputy District Judge Chan and on 17 September 2009 a decree absolute was granted by Registrar Auyeung. 

3.  This is the husband’s appeal from those decrees, on the grounds that the representations in the wife’s affirmations were false in that (a) they did not separate until November 2008 (not December 2006) and (b) apart from having common friends, she had all along known his mobile phone number and the name of the company which employed him, and that the decrees were thus obtained by fraud.  These matters are contained in 2 affirmations filed on 16 May 2011 and 30 May 2011.  He said he had no knowledge of the proceedings until 23 December 2010 when he was so informed by the Immigration Department (both parties are Nepalese and the husband had been granted permission to stay in Hong Kong only as a dependant of the wife). 

4.  Leave to appeal out of time against both decrees was granted by consent by Deputy District Judge Own on 13 July 2011.  Both parties were represented by counsel. 

5.  The wife has through her solicitors written to the husband’s solicitors in November 2011 saying that she would not oppose his application to set aside the decrees, and requesting that no costs be wasted in preparing for the appeal.   She has also through counsel confirmed to this court that she does not contest the appeal and agrees to the decrees being set aside.  However she has on 14 September 2011 filed a 3^rd affirmation in which she contests some of the matters raised in the husband’s 2 affirmations. 

6.  In our view, the appeal should be allowed.  The procedure used follows that approved in the judgment of this court (Woo, Cheung and Yuen JJA) in LCM v LYY CACV445/2002 and it is clear from the contents of an interview that the wife gave to the Immigration Department in December 2007 that she was well aware of the husband’s mobile telephone number and the identity of his employer, and she has not challenged the husband’s evidence that he had not changed the number or his employment at the time she applied for substituted service.  Nor has she challenged his evidence that he had not seen the notice of proceedings published in the newspaper pursuant to the order for substituted service.  It is not necessary for this court to deal with the disputes on other matters arising from the husband’s 2 affirmations and the wife’s 3^rd affirmation.

7.  We would make an order that the decree nisi made on 23 July 2009 and the decree absolute made on 17 September 2009 be set aside, with liberty to both parties to restore the petition for hearing on giving 14 days notice to the other party.

8.  Having heard the parties on costs, we would order that the respondent to the appeal (the wife) do pay the costs of the appellant (the husband), to be taxed if not agreed.  There will be certificate for one counsel.