Yh v. Wz

FCMC 3919/ 2026

[2026] HKFC 157

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 3919 OF 2026

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D E C I S I O N

(Set side Certificate of Registrar,
Vacating pronouncement of Decree Nisi,
Leave to file Form 4 and Answer out of time)

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Parties

1.The Petitioner is the wife (“W”) represented by Messrs. Chaine Chow & Barbara Hung (“CCBH”).

2.The Respondent is the husband (“H”) represented by Messrs. Edwin Mok & Co., Solicitors (”EMC”).

Chronology

3.On 12/5/2026, W filed a Petition for divorce relying on the fact of “Unreasonable Behaviour”.

4.On 2/6/2026, the Petition for divorce together with the prescribed accompanying documents were personally served by a clerk of CCBH on H personally at his last known residential address.  There was an Affirmation of Service of the process server filed on 29/6/2026 attached with 2 exhibits, one of which was the covering letter to H enclosed with the Petition and accompanying documents. The other exhibit is a photograph of H as identification for service.

5.On 8/7/2026, CCBH filed the Application for Directions for Trial under Rule 33(2A) of the Matrimonial Causes Rules, Cap.179A (“MCR”).  Together with the Application, there was the W’s Affirmation in support in the prescribed Form 21(7) of the MCR.

6.On 11/8/2026, the Certificate of Registrar was granted whereby it was satisfied that W has sufficiently proved the contents of her Petition and entitled to a Decree Nisi of divorce.

7.On 11/8/2026, a Notice of date of pronouncement of Decree was issued and sent to parties’ legal representatives, namely, CCBH and EMC.

H’s present application

8.On 24/8/2026 at 5:47 p.m., a document by the name “Notice of Appearance” signed by H himself was received by the Family Court.  At page 2 of this Notice, it was said to be sent to the Family Court and to W’s lawyers CCBH.

9.Surprising, at today’s hearing, Miss Hung appeared on behalf of W, informed me that they had no knowledge of such Notice and confirmed that they did not receive such “Notice of Appearance” until this was raised by me with Mr To, Counsel for H.  I then showed to both parties of such Notice on the Court file.  Mr To on behalf of H was unable to show to me that such Notice had actually been sent to W’s lawyers despite it had so stated therein[1].

10.At page 1 of this Notice, it said :-

-  H intends to appear at the time on the date of pronouncement of Decree Nisi to show cause as to why the Decree ought not to be pronounced;

-  H will appear in person;

-  The grounds upon which H show cause in his Summons dated 24/8/2026 and on the Affidavit of his lawyers Mok Wah Sing, Edwin affirmed on 24/8/2026.

11.On 25/8/2026, EMC issued a Summons (dated 20/8/2026) seeking, inter alia, that the said Certificate of Registrar be set aside; alternatively, stayed, pronouncement of Decree Nisi on 27/8/2026 (that is, today) be vacated, time for H to file and serve his Acknowledgement of Service be extended, the Acknowledgement of Service in Form 4 filed in the Family Court on 19/8/2026 do stand duly filed and served.  Further, directions were sought for the filing of H’s Answer in the form of the draft Answer annexed hereto (my emphasis).

12.In the Affidavit of Mok Wah Sing, Edwin, Solicitor acting for H, which was filed together with the said Summons, there was attached 1 exhibit marked “MWS-1” containing 8 separate documents adding up to 21 pages.  I will refer to the Affidavit as “Mr Mok’s Affidavit”.

13.At paragraph 4 of Mr Mok’s Affidavit, reference was made to CCBH’s filing of (a) Application for Directions for Trial; and (b) W’s supporting Affidavit under Form 21(7) both of which were dated 7/7/2026[2].

14.In the next two paragraphs that follow (which was erroneously numbered as 3 and 4 which should be 5 and 6 instead), Mr. Mok said :-

“ Neither of the above documents was at any time served upon my firm Edwin Mok & Co., Solicitor (“my Firm”) nor the Respondent, Mr. WZ. We have no record of receiving either of them.

The consequence is that the Certificate of the Registrar dated 11 August 2026 was obtained without our firm and our client having had notice of the documents upon which the Petitioner relied in support of her entitlement to decree, and without our client having had any opportunity to be heard in respect of them.”

15.In the remaining paragraphs of Mr Mok’s Affidavit, reference was made to H had neither filed Acknowledgement of Service in Form 4[3] because there was ongoing mediation from June 2026 onwards which ended up with a Consent Summons dated 2/7/2026 (“Consent Summons”) signed (copy attached within Exhibit “MWS-1”).  Somehow, Mr Mok then said H’s Acknowledgement of Service in Form 4 dated 19/8/2026 having been “filed” on 24/8/2026 (copy attached within Exhibit “MWS-1”).  

H’s draft Answer ?

16.Although it was said at paragraph 5 of the Summons issued by EMC for the present application that there was a draft Answer annexed, there was no such draft annexed.  It does not happen to be annexed to Mr Mok’s Affidavit either.

17.On 26/8/2026 (that is yesterday) at 4:36 p.m., the Family Court Registry received a Skeleton Submissions from Counsel Mr To for H annexed with an unsigned “Respondent’s Answer to the Petition”.  This draft also contained an unsigned “Statement of Truth”.

18.Within Mr To’s written Skeleton Submissions, there was no explanation as to why this had so happened. Mr. To however did not address me on such issue in his oral submissions until this was raised by me and Miss Hung.

19.This is highly unsatisfactory for 2 reasons. First, it remains unclear whether the draft appeared within Mr To’s Skeleton Submissions was the one referred to in the Summons issued by EMC. This could only be confirmed by Mr Mok who was absent in Court today.  Secondly, given that it was only an unsigned draft, appeared all of a sudden today, the draft was not verified by H personally by way of Affirmation that this was the same draft Answer which should have been annexed to the Summons.  In my view, unless this was confirmed by H (by Affirmation) or by Mr Mok whose firm’s name Edwin Mok & Co., Solicitors appeared in the unsigned draft, there could always be different versions of the draft Answer as neither Mr Mok had signed on it nor H signed at the Statement of Truth.

20.Such way of producing H’s Answers is highly unsatisfactory.  First, it is unfair to W who was deprived of the opportunity of considering H’s case.  Secondly, it is unfair to the Court to assess H’s merits upon an unsigned and unverified draft Answer.  Lastly, it is unfair to Counsel Mr To for him to take over the burden (and indeed responsibilities) of his instructing solicitors on a “last-minute” Brief to attend this hearing.

21.I decided that H had not been able to show any legitimate grounds of contention to W’s case of unreasonable behaviour against him; or that it was unjust to grant a Decree to W.

Procedural Aspects under the MCR

22.Rule 33(2A) of the MCR sets out in detail the procedure that needs to be followed to obtain directions for trial of his/her Petition for divorce.  Under the rule, there was no requirement on the part of the petitioner to serve the Application for Directions for trial and the supporting Affirmation (in this case the Form 21(7)) and/or to notify the opposite party of such application.  This has been the rule and practice commonly known to all legal practitioners.

23.At today’s hearing, Counsel Mr To tried to argue that the absence of specific words under Rule 33(2A) of the MCR on “serving/serve” does not mean that those documents need not be served.  Mr To was unable to come up with any cases to support such “strategic” argument which I do not accept.

24.I failed to see how Mr Mok could raise as an issue that neither his firm nor his client was served with the Application for Directions for Trial and the supporting Affirmation under Form 21(7).

25.Had Mr Mok ever considered why he received instructions from H as early as in June 2026 could have, but turned out had not, put in the Form 4 to preserve H’s position in respect of the divorce suit.  Had a Form 4 been filed, the Family Court would have to send a copy of the Form 4 to CCBH who, as experienced matrimonial lawyers, would know that they should not apply for Directions for Trial before the time for filing Answer had expired.  In the present case, CCBH made the application on 8/7/2026 at which time the 28-day for filing Answer had also expired. 

Summons dated 20/8/2026 issued by EMC on 25/8/2026

26.Under Order 32 rule 3 of the District Court Rules, Cap.336H (“RDC”), any interlocutory application by way of summons must be served on the other party not less than 2 clear days before the day specified for the hearing.

27.This “2-day” rule was clearly not complied with and there was no specific prayer for abridgment of time stated in the terms of the Summons.  There was not even a letter from EMC to seek abridgment.  Worse still, H’s Counsel did not bring this up on his own volition until raised by me at this hearing.  Miss Hung of CCBH did raise such fallacy in her written Submissions.  This is unsatisfactory as practitioners are expected to strictly follow the rules of procedure at all time.

28.Since 2022, all applications by way of Summons must (my emphasis) state clearly and accurately the statutory provisions and/or procedural rule(s) at the margin of the Summons upon which the relief(s) are sought.  There was no excuse for EMC not to follow such practice.  There was no marginal note stated in the Summons.

“Notice of Appearance” ?

29.Attached within Exhibit “MWS-1” was a letter dated 24/8/2026 from EMC to the Family Court saying that Mr Mok would be in Greater Bay Area and that H would be attending the hearing by himself to show cause why the Decree should not be granted. 

30.I noticed that the date in the letter saying Mr Mok would be in Greater Bay Area was 26/8/2026 whilst pronouncement of the Decree today is 27/8/2026.  Even if this was a typo, it was an unsatisfactory (with respect, if not unprofessional) arrangement for a solicitors firm on record (my emphasis) to absent himself for the show cause hearing whilst the Notice to Act filed on 24/6/2026 by EMC states they represented H in these proceedings.  I am of the view that leaving a client whom he represented on private instructions to attend the hearing of the proceedings for the sake of the lawyer’s other work commitment/engagement is rarely seem. This would only happen in cases where the party’s lawyers are on legal aid and the Legal Aid Certificate does not cover any particular part of the proceedings.  Such uncommonly seen arrangement is unfair to his client, let alone any potential professional integrity and conduct issue.

31.Moreover, practising solicitors as officers of the Court should seek Court’s indulgence in advance for excusing his or her attendance with justifiable reasons being shown before he or she would be allowed to be absent for a court hearing.  To notify the Court of his or her non-attendance and the filing of the so-called “Notice of Appearance” was an unprecedented practice which would not be accepted.  In any event, such “Notice of Appearance” was a self-invented document not under any rules or prescribed form.  

Reconciliation v. Mediation

32.Considering Mr Mok’s Affidavit in its full context, and with respect to Mr Mok, I noted with surprise that the notion of reconciliation and mediation was not properly understood by him.  It is trite that mediation is one of the means of Alternative Dispute Resolution (“ADR”) to resolve differences of parties.  In family law cases, mediation happens day in and day out on children and financial disputes.

33.Reconciliation, on the other hand, refers to the process to salvage the parties’ marital relationship.  In my view, reconciliation and

mediation are 2 completely distinct, if not mutually exclusive, concepts, of which they do not go hand-in-hand.  Had the parties been able to reconcile, there would be no mediation as to how the children (if any) are to be taken care of or how their finances are to be distributed. Successful reconciliation would end the divorce proceedings. 

34.At this juncture, I should mention that there was a letter from CCBH to EMC dated 8/7/2026 within Exhibit “MWS-1” which said :-

“Your client’s reply is noted and our client confirms and maintains her position that her attempt for mediation is NOT reconciliation.”

The “Consent Summons”

35.Mr Mok also referred to the Consent Summons dated 2 July 2026 having been signed and filed with the Family Court.  Master Wendy Mak then made an order on it and granted directions. 

36.The Consent Summons only dealt with adjournment of the 1^st Appointment hearing but not any other matters or stay of proceedings. 

37.I failed to see how the Consent Summons and order granted thereby could support H’s application under the terms of his Summons.

Decision

38.For all the above reasons, I decided that the reliefs sought under H’s Summons dated 20/8/2026 (filed on 25/8/2026) completely fail.

Costs

39.I was invited by CCBH to grant costs in favour of W to be assessed summarily and on indemnity basis.

40.The absence of the draft Answer, the unsustainable grounds put forward in Mr Mok’s Affidavit and the misunderstanding of the procedural rules under the MCR, I am minded to say H’s application had not even get off the ground and must be dismissed with costs.

41.I agree with CCBH that this was a proper case for awarding costs on indemnity basis.

42.Going through the items and time spent set out in the Statement of Costs, which Miss Hung invited me to take into account of H engaging Counsel today, which was not anticipated when the Statement of Costs was prepare.  Parties agree that today’s hearing spent 1 hour in total.

43.I assessed indemnity costs at HK$70,000 to be paid by H to W forthwith.

44.This is a costs order nisi which would become absolute if no application to vary the same was filed within 14 days from the date of this Decision.

Orders

45.I now grant the following Orders :-

(1) H’s (Respondent’s) Summons dated 20/8/2026 (filed on 25/8/2026) be dismissed; and

(2) H (Respondent) do pay to W (Petitioner) the costs of his Summons on indemnity basis, summarily assessed at HK$70,000, to be paid forthwith; and

46.There be a Decree Nisi granted today under the Special Procedure List.

Others

47.With my views and observation under the preceding paragraphs of this Decision, I grant leave to release a copy of this Decision to the Law Society for their information given this Court’s concern on the need to uphold the professional standard, integrity and conduct of their members, vis-à-vis, the Court and members of the public, let alone their client the Respondent in this case.

48.I also grant leave for a copy of the “Notice of Appearance”, Summons dated 20/8/2026 (filed on 25/8/2026) and the Affidavit of Mr Mok (together with Exhibit “MWS-1”) to the Law Society and any other documents if they so require.

Miss Barbara Hung of Messrs. Chaine Chow & Barbara Hung, Solicitors for the Petitioner

Mr Christopher KH To instructed by Messrs. Edwin Mok & Co., Solicitors,  Solicitors for the Respondent