FONG PAK KAI v. FONG CHUE YIN LING MARGARET

IN THE COURT OF APPEAL

1994, No. 115
(Civil)

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J U D G M E N T

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Nazareth, V.-P.:

1. This is an appeal by the appellant husband against an order striking out his petition for a decree of nullity. The order was made by Deputy Judge Gill on 12th May 1994 in the District Court.

2. The parties were married at the City Hall Registrar's Office on 10th February 1975. The husband in his petition relies upon his earlier marriage to Fong Ping-wo. That marriage took place in People's Republic of China in 1958. Fong Ping-wo is still alive and the marriage has apparently never been dissolved or annulled and is said to be still subsisting and valid. Indeed, the husband was convicted of bigamy.

3. The appellant having made this petition, the wife made an application under Order 18 rule 19 of the Rules of the Supreme Court for it to be struck out on the grounds that it is frivolous or vexatious and is otherwise an abuse of the process of the court.

4. The application came before Deputy Judge Gill with the result I have mentioned. The judge's reasons are set out at p.3 of his reasons for judgment:

"In considering the merits of the wife's application before me, I pay heed to this; the marriage between the parties is and has always been void ab initio. The husband was with an earlier marriage still subsisting unable to enter into a second marriage at the time he purported to do so. That he did so has culminated in a conviction for bigamy and a directive that the certificate be surrendered for cancellation.

Effectively then there is no marriage and there never has been one. The mere fact that there is a registration that has apparently not yet been cancelled, does not in my view alter the fact that there is no marriage. Thus, there is no point in the husband seeking a declaration of nullity of a marriage which does not in fact exist."

Those are his reasons.

5. Mr Pilbrow who, with Ms Peck, appears for the husband before us, contends that the judge was simply wrong. He submits that there is every point in the husband's pursuing his petition because he seeks a share in several properties registered in the name of the wife which the husband says he has contributed to during the 20 odd years of their relationship. The court is empowered to make such an award under ss. 4 and 6 of the Matrimonial Proceedings and Property Ordinance after considering all the circumstances of the case pursuant to s. 7 of that Ordinance.

6. In submitting that the judge was wrong, Mr Pilbrow contends that a person who is a party to a marriage that is void ab initio is entitled to a decree of nullity; indeed, that s. 21 of the Matrimonial Causes Ordinance provides that "If the court is satisfied that the case for the petition has been proved, the court shall grant a decree of nullity". The position in England is reflected in case law, there being no similar statutory provision.

7. Thus in the 16th Edn of Rayden on Divorce, Chapter 6 para. 6.3, to which Mr Pilbrow took us, it is stated that:

"... a civil suit for the purpose of annulling [a voidable] marriage may, it seems, be brought by persons having a financial interest in the matter; and the guilty party to a bigamous marriage may allege his own bigamy."

He also referred us to the following dicta and authorities. The fact that a party has committed bigamy does not preclude that party from being entitled to ancillary relief (Whiston v Whiston [1994] 2 FLR 906). There is no bar to a guilty party to a bigamous marriage alleging his own bigamy (Hayward v Hayward [1961] P 152). A petitioner is entitled ex debito justiti( to a declaration of nullity of marriage where the respondent's husband was alive at the time of the second marriage (Bateman v Bateman (1898) 78 LT 472). There is no discretion of the court to withhold a decree of nullity (Corbett v Corbett [1971] P 83; Kassim v Kassim [1962] P 224).

8. We are told that counsel appeared before the judge at the hearing of the petition but we are in no position to know whether these authorities were cited to him. It seems to me unlikely that he had the full submissions with which we have been favoured. But it is apparent from the authorities to which I have referred that the judge was wrong in his reasons. Miss Chow who appears for the respondent before us does not seek to dispute those authorities or indeed their effect. What she submits is that the husband was convicted of bigamy. That is not in dispute, nor that it was in respect of the second marriage, which resulted in the Immigration Department recalling the certificate of registration for cancellation. A marriage, she submits, in Hong Kong is only valid, presumably in respect of persons of the Chinese race, if it is registered. The marriage certificate, she submits, was evidence of the registration. Therefore, when the certificate was recalled for cancellation, the effect was that there was no marriage at all. That argument, which I have not stated as plausibly as Miss Chow, has only to be stated to reveal its fundamental flaws. It is not suggested that the Immigration Department have any powers to determine the validity of marriages nor is it suggested that they have any statutory powers to do so. The certificate that the Immigration Department issues administratively can only be of convenience. However that may be, nothing Miss Chow has urged upon us is an answer to the clear position under the authorities to which I have referred and the plain language of s. 21 of the Matrimonial Causes Ordinance. Plainly, the judge was wrong.

9. The principles on striking out under Order 18 rule 19 are stated at p. 331 of the Supreme Court Practice 1995 Vol. 1 at para. 18/19/7. It is in only plain and obvious cases that recourse should be had to the summary process under that rule. The summary procedure can only be adopted where it can clearly be seen that a claim or answer on the face of it is obviously unsustainable. Here, far from being persuaded that the claim is unsustainable, it appears that the petitioner has the right ex debito justiti( to a decree of nullity.

10. Speaking for myself, it seems to be plainly right that the husband should have his claim for the relief he seeks considered and determined by the court. This will result not necessarily in his obtaining any property that he says is matrimonial property, but it will ensure that the judicial discretion that the courts have in this sort of matter is brought to bear upon the matter of relief. This was one of the considerations that weighed in the decision in Whiston v Whiston (at p. 908 F-G).

11. For myself, I have no hesitation in concluding that the judge was wrong in his reasoning. I would allow the appeal and set aside the order. The result will be that the matter will go forward and be considered in the way it should be.

Bokhary, J.A.:

12. I, too, would allow this appeal.

13. In the circumstances of this case, I can understand the family judge's order striking out the husband's petition. But at the end of the day, I am driven to the conclusion that his decision was wrong in law and cannot be sustained. Possibly, he had not received as much assistance as we have received from counsel on each side.

14. No useful purpose would be served by going through all the cases. I would just mention that I find the reasoning of Thorpe J in Whiston v. Whiston [1994]2 FLR 906 particularly convincing.

15. Even where the only real object of a nullity petition brought by a bigamist is ancillary relief, it seems to me that the petition and the application for such relief can be brought.

16. The case before Thorpe J involved a claim for ancillary relief brought by a bigamous wife. Rejecting the submission of counsel for the husband that public policy barred such a claim, Thorpe J said this at p.908E-H:-

"... First, bigamy towards the close of the twentieth century does not carry the gravity that it did when the statutory offence was created in 1861. Nowadays when marriages can be so readily dissolved some of the gravity of the offence is reduced. Secondly, it has always been regarded as a crime necessary to protect the innocent woman from the male bigamist. There does not seem to be much sentencing policy surviving in respect of the female bigamist. Thirdly, I would deplore any conclusion that curtailed or removed the judicial discretion in making financial provision for adults and children post-marital breakdown. Part of the ground that [counsel for the husband] was able to develop derived from the fact that unusually the care and control of the children had been committed to the husband and not to the wife. It would be very serious if a woman who had a responsibility to bring up young children could not assert claims for ancillary relief for herself simply because she was guilty of bigamy. Finally, I find it difficult to see how [counsel for the husband's] principle would apply in the more usual case where the bigamist was the respondent husband."

17. It is true that the case before us is one of a male bigamist. But I think that the only orderly course is for the courts to entertain all applications by or against all bigamists.

18. That is not to say that the sense of justice of right-thinking members of society will at the end of the day be offended by what the court ultimately does in any given case.

19. In the case before him, Thorpe J considered whether the bigamous wife's right to financial relief should be extinguished or reduced. And coming to the conclusion that right-thinking members of society would think in the circumstances prevailing there that the wife's claim should be reduced, he reduced it.

20. In the present case, I would not for one moment exclude the very real possibility that the bigamous husband's right to financial relief (if any) would be extinguished. But on such evidence as has been filed, it is not plain beyond argument that any such right which he might otherwise have would necessarily be extinguished by reason of his bigamy. And in any event that is not the basis on which the striking out application was made in the present case. Accordingly, I do not think that his petition or any prayer therein can be struck out.

21. I do not think that he can be stopped at this stage even though he might well end up with nothing except an order for costs against him. I am aware of - and I deeply regret - the great strain to which the innocent wife, whose health seems not to be good, may be subjected by reason of this matter being permitted to continue. But I do not think that it can be avoided. No doubt she will be sustained by her family, her friends, and, not least of all, her lawyers. And I hope that she will also be sustained by a belief - it is certainly my belief - that the law is fundamentally just even though justice sometimes comes later rather than sooner.

Mayo, J.A.:

22. I agree also that this appeal must be allowed.