MSK v. PSK

CACV 219/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 219 OF 2005

(ON APPEAL FROM FCMC NO. 10255 OF 2003)

______________________

______________________

J U D G M E N T

______________________

Hon Cheung JA (giving judgment of the court) :

The orders

1. The parties were married on 26 March 2001 in Hong Kong.  On 23 April 2004 the petitioner husband obtained from Deputy District Judge D’Almada Remedios a decree nisi dissolving the marriage on the ground that it had broken down irretrievably by reason of the respondent wife’s behaviour.  The judge further ordered that the child of the family be remained in the custody of the petitioner with reasonable access to the respondent (‘the custody order’).  It should be pointed out that in the divorce petition, the petitioner asked that the custody of the child should be granted to the respondent.  According to the written notes of the judge she granted custody of the child to the respondent but in the sealed order it was wrongly stated that custody of the child was to be granted to the petitioner.  The former solicitor for the petitioner has confirmed in writing that the sealed order was wrongly drawn up.

2. On 8 June 2004 the decree nisi became absolute. 

3. On 12 July 2005 the respondent obtained leave from the judge to appeal against the decree nisi, the custody order and the decree absolute.  A notice of appeal was filed on 18 July 2005. 

4. The petitioner was previously represented by a firm of solicitors on the instruction of the Director of Legal Aid.  On 26 September 2005 this Court ordered substituted service of the notice of appeal on the petitioner by way of advertisement of its contents in a local Chinese newspaper.  This appeal was listed for hearing on 15 June 2006.  The petitioner didnot attend the appeal.  

5. It transpired that the notice of hearing was unable to be effected on the petitioner on his last known address.  This Court ordered this appeal to be relisted today and the notice of hearing be advertised in a local Chinese newspaper.  This was done but the petitioner still does not turn up today.

The petition

6. The respondent was not aware of the petition for divorce.  It was never served personally on her.  On 1 September 2003 the petitioner obtained an order from the District Court authorizing him to effect substituted service of the petition on the respondent by advertisement in a local Chinese newspaper.  The order was made pursuant to an affirmation by the petitioner who claimed that the respondent had left the matrimonial home since early September 2002 together with the child of the family.  He claimed that he had no idea where the respondent had gone.  He had reported the matter to the police.  The police had not been able to locate the respondent or the child. 

The respondent’s case

7. The respondent stated that she had no notice of the divorce proceedings until 16 November 2004 when she received a letter from the Director of Legal Aid seeking costs of the divorce proceedings against her.  She immediately sought legal advice and then discovered that orders had been made against her in the divorce proceedings. 

8. The respondent stated that the petitioner in fact left the matrimonial home in September 2002 after she had confronted him about his extra marital affair.  He had not returned to the matrimonial home since that time.  The respondent had remained in the matrimonial home until 15 May 2005 when she moved to a new home with the child.  During this period she had not changed the number of her mobile telephone and the petitioner could easily have contacted her by the telephone.

9. The judge was clearly misled by the petitioner when she granted the various orders.  In LCM v. LYY (CACV 445 of 2002) a husband obtained a divorce by falsely claiming that he did not know the whereabouts of his wife and obtained an order for substituted service of the divorce petition.  This Court (Woo (now Vice President), Cheung and Yuen JJA) held that we have jurisdiction to hear the appeal by the wife against the decree absolute dissolving the marriage notwithstanding the restriction imposed by section 14(3)(d) of the High Court Ordinance which restricts an appeal from an order absolute for the dissolution of marriage because on the facts the wife did not have the time or opportunity to appeal from the decree nisi on which the order was founded.  The same reasoning applies to this case as well.  The various orders that had been obtained against the respondent were clearly null and void because the proceedings had never been served on her.

Appeal allowed

10. Accordingly the appeal must be allowed and the various orders be set aside. 

Costs

11. We shall further order that the costs of the appeal and below be borne by the petitioner and the respondent’s own costs be taxed in accordance with Legal Aid Regulations.