The Estate of CWT, Deceased v. YYK

FCMC 10917/2006

[2020] HKFC 247

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 10917 OF 2006

________________________

________________________

________________________

J U D G M E N T

(Setting Aside Orders and Decrees)

________________________

Applications

1.  This is a hearing of the Respondent wife (“the wife”)’s summons dated 7 September 2018 for setting aside the following orders and decrees:

(1)  The Order dated 15 September 2006, that service of the Petition and all accompanying documents on the wife be substituted by inserting an advertisement once in Sing Tao Daily News (“the Substituted Service Order”);

(2)  The Decree Nisi dated 8 February 2007 holding that the wife had deserted the Petitioner husband (“the husband”) for a continuous period of at least one year immediately preceding the presentation of the Petition and that the marriage between the husband and wife had broken down irretrievably;

(3)  The Order dated 8 February 2007 upon the making of the Decree Nisi; and

(4)  The Decree Absolute dated 20 April 2007 formally dissolving the marriage between the husband and wife.

2.  It is to be noted that the husband has passed away on 29 March 2018 and permission has already been obtained for this application to proceed against the estate of the husband and the title to these proceedings was accordingly amended.

3.  Despite the fact that no objections to these applications were raised on behalf of the husband’s estate, I directed that the wife’s application for setting aside to be adjourned to today for trial.

Background

4.  The parties were married on 26 March 1976.

5.  Within wedlock, they have 2 children, both being adults by now and are living independently.   The elder son is aged 41 and is residing overseas.  The younger son is now aged 39 and is working and living in Hong Kong.

6.  On 1 September 2006, the husband issued a Petition for Divorce alleging that the wife had deserted him for more than one year since about January 2000.  In the Petition, the husband stated that the occupation and address of the wife were unknown to him.  In the particulars, the husband stated that over the years, the parties’ relationship had turned cold.  In or about 2000, the wife without much explanation packed her belongings and left the matrimonial home.  She had also changed her mobile phone number making it impossible for the husband to contact her.  Since the wife’s departure, there was no contact between the parties and he had not seen the wife for the past 6 years.  Based on the wife’s desertion, the husband issued the Petition and asked for a decree of divorce based on that fact.

7.  In order to deal with the service of the Petition and accompanying documents, the husband filed his affirmation dated 12 September 2006 in support of his ex-parte application for a substituted service order.  Therein, the husband stated the followings:

(1)  In about 2000, the wife quietly packed her belongings and left the matrimonial home.  She did not provide any details of her whereabouts or where she would be staying.  Once left, she never returned.

(2)  Initially, the wife’s mobile phone was still available, but was later disconnected.  The last time he heard from the wife was about 6 years before, i.e. in the year of 2000.

(3)  The wife had never tried to contact the 2 children of the family.  Both parents of the wife had passed away and the husband had not maintained any contact with the wife’s other relatives or friends.

(4)  The husband had not spoken with the wife for at least 6 years and he knew of no ways to contact the wife.

(5)  The husband therefore applied for an order that the service of the Petition for Divorce and related court documents and all subsequent documents be substituted by advertising a Chinese notice in one of the Chinese newspaper published and widely circulated in Hong Kong namely, the Sing Tao Daily Newspaper.

8.  The application was placed before me and based on the ex-parte evidence of the husband, I granted the Substituted Service Order.  Pursuant to the said order, the husband did cause a Chinese notice to be published at the Sing Tao Daily Newspaper on 15 October 2006.

9.  After satisfying with the service of the Petition and accompanying documents by the husband, the Registrar issued the Certificate of Registrar and fixed the date for the pronouncement of the Decree Nisi in open court.  On 8 February 2007, I pronounced a Decree Nisi in open court.  At the same time, I also granted an order that there be no order as to costs of the suit with a section 18 Declaration.

10.  On 13 April 2007, the Decree Nisi was made final and absolute and that the marriage between the parties was formally dissolved. 

11.  Shortly after the Decree Absolute and on 15 June 2007, the husband entered into a marriage with one Madam Yang (“Madam Yang”) in Hong Kong.

12.  The husband passed away about 11 years later when his dead body was found on 29 March 2018 at one of his property at Tsuen Tak Gardens, Tsuen Wan (“the Tsuen Tak Property”).   The wife and the younger son then arranged for the funeral and later the cremation of the husband’s body.  According to the wife, it was a total surprise to her that a Decree Absolute has been granted against her as she had never been given any notice of the divorce proceedings and she knew nothing about the husband’s marriage with Madam Yang.

13.  Apart from registering a Caveat on the estate of the husband, the wife also issued the present summons on 7 September 2018 for the setting aside of the various orders and decrees, the service of which was duly effected on Madam Yang by way of double registered post and personal service at the wife’s solicitors’ office.  There is also evidence to show that Madam Yang had indeed applied for legal aid for the issues concerning the Caveat and the setting aside applications but such application was refused.  Despite proper service and notices duly given, Madam Yang had not attended any of the hearings or filed any documents in resisting the applications. 

14.  As far as the estate of the husband is concerned, there is at present no personal representative of the estate and there are no letters of administration or probate being granted.  On 9 May 2019, this court ordered inter alia that:

(1)  the proceedings to be continued as between the estate of the husband and the wife and the action to be titled accordingly;

(2)  the action shall proceed in the absence of a person representing the husband; and

(3)  the orders to be made herein and any judgment or orders subsequently given or made in the proceedings shall bind the husband to the same extent as he would have been bound had a personal representative of his been present as a party to the proceedings.

The Case of the Wife

15.  The wife’s case can be seen in her 3 supporting affirmations (A/35-57, 82-90, 125-132) and also the affirmation of the younger son (A/58-64).  The main basis of her application is that the husband had obtained the subject orders and decrees fraudulently and/or based on clear, deliberate and continuing misrepresentations made by him.  She asked for the subject orders to be set aside and the decrees granted to be declared null and void.

16.  According to the wife, the whole family of 4 emigrated to the USA in 1988 and settled in the City of San Francisco.  They purchased a matrimonial house (“the US Matrimonial Home”) there in joint names as the family‘s residence.   The wife worked as a civil servant until her retirement in 2010.  It was agreed that the husband would return to Hong Kong to quit his job and sell a jointly owned property at Mei Foo before he would return to re-join the family.  Therefore, after staying in the USA for several months, the husband returned to Hong Kong and stayed at another property at Fairview Park which was registered in the sole name of the husband.

17.  The husband did return in 1989, but as he could not find a job in the USA, he decided to return to Hong Kong in or about 1991.  The family arrangement was that the husband would work in Hong Kong and send money over to support the family financially.  In compliance with US residency requirements, he would come back to the USA twice a year and spend about 8 to 10 days, during which he would live with the family.  In 1993, both parties and the 2 children were able to obtain full US citizenship.

18.  The elder son graduated in 1999 and he returned to live in Hong Kong with his girlfriend from 2000 to 2003.

19.  In 2001, a family trust called the “CHUNG FAMILY TRUST” (B/206-210) was set up to hold, amongst other things, the US Matrimonial Home, with the aim of avoiding US inheritance tax in the event that one of them should predecease the other.

20.  The younger son graduated from university in 2002, after which the wife would return to Hong Kong around once every year and each time stayed for around one month.  The wife was arranged to stay at Tuen Mun in a property registered under the name of the husband.  The husband continued to stay at the Fairview Park property saying that it was more convenient as he needed to park his car there.  Despite such separation of residences, the parties would still contact each other and dine out together.  In 2007, the Tuen Mun property was sold and the wife was arranged to reside at the Tsuen Tak Property which was also registered in the sole name of the husband.

21.  The wife retired from the US civil service in 2010, after which she would spend even more time in Hong Kong and the Tsuen Tak Property was renovated.

22.  On 30 November 2017, the wife went to visit the elder son in San Francisco.  She returned on 5 April 2018 and found that the Tsuen Tak Property was sealed off by the Police after the dead body of the husband was found therein on 29 March 2018.  She went to the Tsuen Wan Police Station and was informed that Madam Yang had reported the missing of the husband which led to the police’s discovering of the husband’s dead body at the Tsuen Tak Property.  The wife was further told that Madam Yang refused to collect the husband’s body, so she and the younger son collected the body for funeral arrangements.

23.  According to the wife, she did not know Madam Yang and she had never heard of the husband mentioning her at all.  After the discovery of the husband’s then marriage with Madam Yang in 2007, the wife went to seek legal advice and after a search being conducted at the Family Court Registry, it was found out that the husband did issue a divorce proceeding and had obtained a decree of divorce without proper service on her.  Therefore, the wife issued the present applications to set aside the subject orders and decrees which were obtained fraudulently.

The Applicable Legal Principles

24.  It is indisputable that where an order has been obtained by fraud, misrepresentation or material non-disclosure, the aggrieved party is entitled to have it set aside.  In matrimonial or family proceedings, a party, often the petitioner, may come to court seeking an order for substituted service of the petition or other originating documents claiming that he or she has no means to locate the other party.  In making such an application, the applicant must give full and frank disclosure of all material facts, failing which the order for substituted service is liable to be set aside and so is the subsequent decree nisi and decree absolute of divorce being obtained.  Such duty of full and frank disclosure is well recognised in various Hong Kong cases: CFF v ZWJ [2013] HKFLR 327, LCM v LYY [2003] 2 HKLRD 690, FHFK v NCM [2008] HKFLR 297 and L v L [2010] HKFLR 427.

25.  As far as the procedure for setting aside such an irregular order is concerned, it has been held in CFF v. ZWJ, supra, that it could either be done by way of appeal to the Court of Appeal or by an application to the original court, including the Family Court.  As pointed out by Lam JA (as Lam VP then was) at paragraphs 12-13 of the judgment:

“12. These are the procedural considerations for appeal. There is no doubt that once the requisite leave has been granted, the Court of Appeal can entertain an appeal on ground that a substituted service order has been wrongly obtained and an appellant has been wrongly deprived of the opportunity to contest the petition, see LCM v LYY [2003] 2 HKLRD 690; MSK v PSK [2002] 3 HKC 358, CACV 219 of 2005, 23 June 2006; FHFK v NCM [2008] 5 HKC 355, CACV 182 of 2007, 20 June 2008; L v L [2010] HKFLR 427, CACV 98 of 2010, 2 June 2010.

13. However, it is equally open to a respondent of the divorce petition (who said he or she had been wrongly deprived of an opportunity to contest the petition by virtue of an order for substituted service wrongly obtained) to apply to the Family Court to set aside or rescind a decree nisi or decree absolute. In Craig v Kanssen [1943] 1 KB 256, it was held that failure to serve process where service of process is required renders an order null and void and the party affected by such order can apply to the court making the order to have it set aside without any need to appeal from it. In Everitt v Everitt (No 2) [1948] 2 All ER 545, Lord Merriman P summarized the principle as follows at p.546H to 547A,

‘It is well settled that a judgment obtained against a party in his absence owing to his not having been served with the process is not merely voidable for irregularity but is void as a nullity; see Craig v Kannsen, and the cases there cited.  Manifestly, this general principle applies with full force to a judgment affecting the status of the party: Marsh v Marsh [1945] AC 271.’”

26.  I shall bear the above principles in mind when I come to consider the wife’s application for setting aside.

My Views

27.  Mr. Eric Leung for the wife has very helpfully set out a total of 12 lies and misrepresentations made by the husband when he applied for the Substituted Service Order (paragraph 25 of Mr. Leung’s opening submissions).  Some of them were so blatant that there is no doubt in my mind that the husband’s misrepresentations had to be deliberate with an obvious intention to deceive or mislead the court in granting the Substituted Service Order.

28.  It is to be noted that the whole basis of the husband’s application for the Substituted Service Order was that the wife had deserted the family since about January 2000 and there was no way for him to trace her whereabouts.  However, there is clear evidence to show that such was not the case:

(1)  The wife has produced a trust document showing that both she and the husband had created a family trust (“Chung Family Trust”) in respect of their property in San Francisco on 31 March 2001 (B/206-210), i.e. 14 months after the alleged desertion.  From the trust document, one could clearly see the signatures of both the husband and the wife.

(2)  In early October 2001, both parties went for a trip to Singapore during which photographs were being taken (B/322-332).

(3)  In about 2002, the younger son graduated from the University of California and both the husband and the wife, together with the elder son attended his graduation ceremony. Photographs taken on that occasion were produced as Exhibit R1 and R2 at trial, showing the date of the photographs being 15 June 2002.

(4)  The parties’ matrimonial home in USA was situated at 2828 [WS] San Francisco (i.e. the US Matrimonial Home), and from a letter dated 30 May 2006 (B/225) issued by the HSBC to the wife, it can be seen that the wife was still residing at the US Matrimonial Home at that time.  The husband had never mentioned about the US Matrimonial Home in his application for substituted service or that he had failed to locate the wife at that address.

(5)  There were also events happening after 2006 showing that the parties had continued to conduct their lives as a married couple. For example, the parties attended the elder son’s wedding in March 2012 as husband and wife (B/245-248).  Another example was that the husband had applied for US social security benefits in September 2012 and still claimed himself being married to the wife (B/235-243).

29.  There was also the evidence of the younger son (A/58-64) who testified that there were no occasions on which the husband being unable to locate the wife and vice versa. During the life time of the husband, the younger son had never heard from him that he had lost contact with the wife.  He further confirmed that the wife could all along be contacted at her mobile number or at the US Matrimonial Home phone number.

Conclusions and Orders

30.  Based on the above evidence and discussion, I am satisfied that in the husband’s supporting affirmation in obtaining the Substituted Service Order, he had been guilty of serious misrepresentation in that his claim of the wife’s desertion as from the year of 2000 must be false.  As a result, the wife was deprived of the opportunity to appear in these proceedings.  The Substituted Service Order has to be set aside and so are the subsequent decree nisi and decree absolute of divorce.  Hence, I hereby grant the following orders:

(1)  The order dated 15 September 2006 ordering service of the petition and all accompanying documents on the wife be substituted by inserting an advertisement once in the Sing Tao Daily News be set aside.

(2)  The decree nisi granted on 8 February 2007 holding that the wife had deserted the husband for a continuous period of at least one year immediately preceding the presentation of the petition and that the marriage between the husband and the wife had broken down irretrievably be set aside.

(3)  The order granted on 8 February 2007 upon the making of the decree nisi be set aside.

(4)  The decree absolute subsequently granted on 13 April 2007 formally dissolving the marriage between the husband and the wife be set aside.

Costs

31.  Costs to follow event. The wife shall have the costs of this application including all costs reserved, with certificate for counsel.

32.  Last but not least, I thank counsel for the assistance rendered to this court.

Representation: