CFF v. ZWJ

FCMC 12016 / 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 12016 OF 2010

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R U L I N G
(Leave to Appeal Out of Time
Against Decree Absolute)

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1. Having considered all the affirmations and the supporting documents from both parties, I will grant the Respondent’s application. 

2. My brief reasons are as follows.  The petition was based on the Respondent’s unreasonable behaviour and was issued on 14 September 2010 but it was not served on the Respondent personally and it was only served by way of substituted service.  In support of the Petitioner’s application for substituted service, she filed her first affirmation on 3 November 2010. Thereafter, upon further queries by this court her then solicitors from the Legal Aid Department sent a letter alleging that the Petitioner knew little about the Respondent.  She later filed her Form 21 in February 2011 claiming that the Respondent could not be located. 

3. In her first affirmation in support of her application for substituted service, the Petitioner did not disclose the Respondent had two mobile telephone numbers, one Hong Kong number and one Mainland number and all she said in her first affirmation was that she tried to call his mobile but the number was no longer in use.  What she did not disclose in her first affirmation was that the Respondent had a Mainland number and the subsequent evidence showed that there had been contact between the parties on this number.

4. The Petitioner did not disclose in her first affirmation that she, herself, had called the Respondent on his Mainland number and had spoken to the Respondent when she went to Weizhou to look for him in about February 2010 and to ask him to return to her the original marriage certificate.  The Petitioner did not disclose in her first affirmation Respondent’s Mainland address although subsequent evidence showed that the Respondent was living at the same address at all material times and she had visited that address.  The Petitioner did not disclose in her first affirmation that there was a QQ account through which she could at least try to communicate with the Respondent. 

5. In the circumstances I am of the view that the Petitioner had not taken all obvious and reasonable steps to serve the Petition on the Respondent or to bring the fact that she had issued the petition to the knowledge of the Respondent.  There appears to be material non-disclosure in the Petitioner’s affirmation in support of her application for substituted service. 

6. After the divorce the Petitioner had not taken any steps to inform the Respondent of the divorce at all notwithstanding that there was contact between them.  On 6 January 2012 the Petitioner had gone to the Public Security Office in Weidong to sign relevant documents for the issue of the single entry permit for the Respondent. She did not disclose to the Public Security Office or the Respondent of the divorce.  It appears that the Respondent only found out when he was stopped at the Immigration Office in Hong Kong when he entered Hong Kong with the permit.

7. This court was told that the permit is now with the Immigration Department pending the outcome of the appeal.  It seems that the Respondent has been deprived of his marital status without him having knowledge of it and this has affected the validity of his single entry permit.  I understand that the Petitioner has not remarried. 

8. The Petitioner’s solicitor, Mr Fung, mainly relied on the English case of Wiseman v Wiseman saying that this Court has a discretion and that the marriage had clearly broken down irretrievably.  And Mr Fung relied on a bundle of SMS sent by the Respondent to the Petitioner.  These SMS were almost nine months before the Petition was issued and in the last SMS from the Respondent in fact he begged the Petitioner for a further chance and sought reconciliation. 

9. The Petition was based on the respondent’s unreasonable behaviour.  The Respondent was ordered to pay costs of the petition.  The Respondent has now submitted a draft answer denying those allegations of his behaviour.  The Respondent has explained his reasons for delay and I am unable to say that this appeal has no reasonable prospect of success. 

10. Having considered all the circumstances I will grant Respondent leave to appeal out of time on condition that he lodges his notice of appeal within 7 days and that he undertakes to set down the appeal expeditiously. 

11. And the costs of today’s application will be costs in the appeal.  Both parties are under Legal Aid, parties own costs be taxed under Legal Aid regulations. 

POSTCRIPT (Dated 9 August 2012)

12. After delivering the above oral ruling, it has come to my attention that this Court may not have power to grant leave to appeal out of time, whether against a decree nisi of divorce/nullity or a decree absolute.  I have indicated to the parties’ legal representatives at a further direction hearing that I will be adding this postscript to my oral ruling and they have no objection to this. My reasons are set out below.

13. Order 59 Rule 16 (1A) of Rules of the High Court (RHC) states that an appeal lies to the Court of Appeal as of right against a decree nisi of divorce/nullity, and O. 59 r. 16(2) states that the period of serving the notice of appeal of 28 days (not 6 weeks as mistakenly stated in the 2012 Edition of the Hong Kong Civil Procedure) shall be calculated from the date on which the decree nisi was pronounced.

14. O. 59 r. 16(2) further states that O. 59 r. 15 shall not apply to the above period.

15. What O. 59 r. 15 states is that without prejudice to the power of the Court of Appeal or a single judge under O. 3 rule 5 to extend or abridge the time prescribed by any provision of O. 59, the period for serving notice of appeal under rule 4 or making application ex parte under rule 14(3) may be extended or abridged by the court below on application made before the expiration of that period.

16. Thus, according to paragraph 59/16/4 of the Hong Kong Civil Procedure, by excluding the applicability of rule 15, the effect of O.59 rule 16(2) is that the time for appealing against the grant of a decree nisi cannot be extended by the court below; and that it can only be extended by the Court of Appeal, or a single judge (as defined).

17. By virtue of Rule 3 of the Matrimonial Causes Rules, Rules of the High Court apply to matrimonial proceedings subject to necessary modifications.  Thus the provisions of Order 59 will apply to matrimonial proceedings in the Family Court.

18. At the further direction hearing after the above oral ruling was delivered, the Respondent’s solicitor, Mr. Ko, agreed that the effect of O. 59 rules 16 (2) was that this Court  had no power to grant an application for leave out of time against the decree nisi. Mr. Ko clarified that this was why in his opening skeleton arguments he was dropping his application for leave to appeal out of time against the decree nisi, and only maintaining his application to seek leave to appeal out of time against the decree absolute, which he submitted that this Court had the power to grant.

19. The Petitioner’s solicitor, Mr. Fung, did not make any submissions on this issue.

20. Although I did grant leave to appeal out of time, on reflection, I am, however, not quite certain that this Court does have the power to grant leave to appeal out of time against the decree absolute, if this Court does not  in fact have any power to grant leave to appeal out of time against the decree nisi.  This is also in view of the provisions of s. 14(d) of the High Court Ordinance.

21. S. 14 (3) (d) of the High Court Ordinance sets out:

“(3) No appeal shall lie-

(a) ………….

(b) …………

(c) …………..

(d) from an order absolute for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree; “

22. According to the case of LCM and LYY CACV 445 of 2002, [2003] HKCA 396, [2003] 2 HKLRD 690 (see paragraphs 28-33), s. 14(3) (d) of the High Court Ordinance should also apply to the District Court.

23. I am further aware of a decision dated 7 July 2008 in LSW and LMYM  HCMP 104 of 2008, [2008] HKCFI 554  which seems to support that  leave to appeal against a decree absolute should be sought from the judge who granted it. I refer to the following paragraphs 21-22 of that decision:

“21. Section 14(3)(d) of the High Court Ordinance (Cap 4) provides that no appeal shall lie to the Court of Appeal from an order absolute of dissolution of marriage by a party who had time and opportunity to appeal from the decree nisi on which the order was founded and who did not appeal from that decree. Although the section does not say that no appeal shall lie if a party has unsuccessfully appealed against the decree nisi (which is the case here), the spirit and intent of the section must be to prohibit such an appeal as well. To lodge such an appeal is, almost by definition, an abuse of the process of the court. In any event, even assuming that such an appeal is not caught by section 14(3)(d) as such, leave to appeal should, as a rule, be refused save in the most exceptional circumstances.

22. Furthermore, assuming section 14(3)(d) does not apply, leave to appeal ought to be sought, at first instance, from Deputy District Judge K W Wong: Order 58, rule 2(4) & (5), Rules of the District Court (Cap 336H). No valid reason has been advanced for applying for leave directly from the Court of Appeal: see Order 58, rule 2(6), ibid.”

24. The decision of LSW and LMYM was before O. 59 r.16 (1A) was introduced and the above mentioned provisions of O. 59 were not referred to in that decision.

25. An appeal against a decree nisi was as of right prior to O. 59 r. 16 (1A) was introduced (see paragraph 59/16/1 of the 2008 Edition of the Hong Kong Civil Procedure). 

26. In England & Wales, however, it seems that after their Civil Procedure Rules came into effect, permission for leave to appeal against a decree nisi must be obtained but it seems also that any extension of time will need to be sought from the Court of Appeal.  (see CPR Pt 52 and para 21.1 of the Practice Direction which supplements the part, and also paragraph 51.117 , Volume 1 (2), Rayden 18 Ed).

27. At the time when our own Civil Justice Reform was brought in, O. 59 r. 16(1A) was introduced to reiterate that an appeal against a decree nisi was as of right.

28. According to paragraphs 51.117 and 51.118., Volume 1(2) of Rayden 18^th Ed. once a decree nisi has been made absolute, it seems then the proper procedure for the appellant is to seek a declaration that the appellant had not had time and opportunity to appeal from the decree nisi.

29. There have been a number of other similar cases in the Family Court where a respondent has sought leave to appeal out of time against the decree nisi and/or decree absolute.  At the direction hearing, Mr. Ko has indicated that he will be asking the Court of Appeal to clarify as to (i) whether this Court has the power to grant leave to appeal out of time against the decree nisi; (ii) whether this Court has power to grant leave to appeal out of time against the decree absolute, without the applicant having first obtained leave to appeal out of time against the decree nisi, or whether the application should be to seek a declaration.