Lee Chan Lo-kai v. Lee Wing-tat
Read the full judgment text of HCMP 802/1977 on BabelCite. This High Court CFI judgment was delivered on 4 January 1979.
1. The Wife in this divorce suit seeks leave to appeal notwithstanding that the time for appeal has expired. I am satisfied that this court would have jurisdiction to make the order sought, although that jurisdiction was disputed. The Wife alleges that she was unaware that her marriage to the Respondent had been dissolved and that she had had no notice of the decrees, orders and directions both in the divorce suit and the ancillary proceedings.
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HCMP000802/1977
----------------- Coram: Huggins and Pickering, JJ.A. and Trainor, J. Date of Judgment: 4 January 1979 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. The Wife in this divorce suit seeks leave to appeal notwithstanding that the time for appeal has expired. I am satisfied that this court would have jurisdiction to make the order sought, although that jurisdiction was disputed. The Wife alleges that she was unaware that her marriage to the Respondent had been dissolved and that she had had no notice of the decrees, orders and directions both in the divorce suit and the ancillary proceedings. 2. The petition was filed on 12th April 1976. The Husband has filed evidence that the petition was served on 12th April 1976 and again on 14th April 1976. The suit was transferred from the District Court to the High Court, although we have not been shown any reference to the order of transfer in the papers before us. The suit came on for hearing before the learned Chief Justice on 15th May 1976 and he made a decree nisi. A decree absolute followed on 24th May 1976. The statutory time for appeal therefore expired on 5th July 1976 but this application for leave to appeal out of time was not filed until 6th December 1977. It will be seen at once that this application is made very late, but the Wife contends that it has been made without undue delay. The foundation for that contention is her allegation that she did not know of the existence of the decree until May 1977. Allied to that allegation, and made a separate ground of complaint, is an allegation that she was never served with the petition. 3. There is only one point which has at any stage caused me anxiety in the present case. On 20th April 1976 the learned Chief Justice made an order in these terms:
It is immediately obvious that that order presents difficulties:
4. I have said that we are asked to assume that the affidavit of Mr. Lau was read to the Chief Justice and upon that assumption is based the argument that the learned judge found that there had been no good service of the petition. Paragraph 14 is in these terms:
Once again we are faced with what is clearly bad drafting. It must be remembered that Mr. Lau was a clerk employed by the Husband's solicitors and one whose duties apparently included serving process. It is manifest that he did not understand what he was deposing to, but it is argued that the advocate who (as is assumed) used the affidavit must have understood it. In fact it makes nonsense, if for no other reason than that any decision on the matter referred to in the affidavit was for the court and not for the despondent, even with leave. Even if one reads the words "crave leave of" to mean "ask", the intention is still in dispute: Mr. Jackson-Lipkin contends that the word "is" must be read as meaning "be deemed to be". That would be consistent with an application under rule 14(6) of the Matrimonial Causes Rules, which is in these terms:
At the same time the use of the word "is" would be consistent with a request that the court consider whether the facts previously deposed to established that there had been good service. There is no question here of the petition's having been "sent to" the Respondent: there had, it was alleged, been personal service. Mr. Jackson-Lipkin's argument goes on to rely upon the inclusion in the order of the word "pleadings": he says that there could be no further pleadings because, if (as was alleged) the petition had been served on 12th April, the time for giving notice of intention to defend had expired by the date of the order and no further pleadings were possible. Counsel further says that the form of the order shows that the Husband's advisers were satisfied there had been no good service and that the judge would not have made the order in the terms he did if he had been satisfied that the petition had been duly served. It appears from the court record that the order in question was made pursuant to an application under the liberty to apply granted upon an application for directions heard on 15th April 1976. The learned Chief Justice's endorsement appears on the summons for directions:
I must say frankly that I do not understand what that endorsement meant: there was no written application in the terms of which an order could be made. One may speculate that the order was to be "in terms of the affidavit of Mr. Lau in so far as it contained a reference to substituted service", in which event, when one reads paragraph 14 of the affidavit in the context of the whole affidavit, it is clear that the word "pleadings" would not have been intended to include the petition. We must assume that the order was drawn up substantially in accordance with the learned judge's intentions, since he initialled it. 5. As it seems to me, it would be wrong to interpret Mr. Lau's affidavit in the manner in which Mr. Jackson-Lipkin would have us read it. Whatever else he may have done the learned Chief Justice did not read it as an application under rule 14(6). On the assumption which Mr. Jackson-Lipkin himself asks us to make, namely that Mr. Lau's affidavit was read, the position before the judge was that the Husband was alleging personal service of the petition on two separate occasions. the form of acknowledgment of service had not been received in the Registry but directions for trial had been given. There were therefore no further pleadings which could be served by substituted service. The petition, although technically "a pleading" had, according to the Husband and (more important) to the deponent Mr. Lau, already been served and the order could, of course, only apply to subsequent pleadings. I do not think in the circumstances of this case the combination of the affidavit and the order compels us to conclude that the learned Chief Justice was in doubt about the validity of the service of the petition. If his endorsement indicates anything relevant at all, it indicates that the matter of service was in his mind, and if he was intending to make an order under rule 14(6) (unlikely as that was) he would have ensured that the perfected order so provided. Although I fully appreciate that we ought to be slow to hold any part of an order of a judge of the High Court to be otiose, I can see no reasonable alternative in the present case, for I think it would be fanciful to suggest that the Chief Justice had in mind pleadings which might be required if the Wife were given leave to file an answer out of time. If the learned Chief Justice had come to the conclusion that the petition had not been served and had intended that his order for substituted service should include service of the petition itself, I think he must inevitably have set aside the very order under which he was assuming jurisdiction, i.e. the order of 15th April giving directions. On the contrary his endorsement suggests that the proceedings for divorce had already been served and were to proceed to trial in the absence of any representative of the children. 6. When one turns to the rest of the evidence one finds that it is in favour of the Husband's contentions. As to 12th April Mr. Lau, the process server, said that he went to the Wife's residence: in the first instance he saw the Wife's mother and told her that he had some papers which he wished to serve on the Wife personally: the mother went away and returned with the Wife: he told the Wife that he had some legal documents for her: the Wife then made a telephone call and asked Mr. Lau to speak to the distant subscriber, who turned out to be the Husband: as a result of his conversation with the Husband Mr. Lau proceeded to serve the four documents which he had, one of which was the petition. He said that he spent some time explaining to the Wife the nature of the documents and that he asked her to take them: he also informed her that she should see a solicitor. According to him the Wife refused to take the papers and started to scream and ordered him out of the house, whereupon he placed the papers on the table and started to leave: the Wife picked up the papers and followed him: the Wife handed the papers to the gardener and asked him to return them to Mr. Lau: Mr. Lau climbed into the car which he had waiting and shut the door so that the papers could not be returned to him: the Wife then snatched the papers and threw them at the car, after which Mr. Lau was driven away. The Wife does not contest that Mr. Lau came to the premises and brought some legal documents, nor does she contest that there was a telephone call with the Husband. Her version of the telephone call is that the Husband told her these documents related to divorce proceedings which he had commenced against her but which he was now withdrawing and she says that he told her that she could sign the papers if she wished or she could return them to Mr. Lau. She does not deny that she became very excited but insists that she tried to return the papers simply because she had been told that she could do so by her husband. It follows that her contention is that she did not know that the documents included a petition for divorce which it was sought to serve upon her and to which she was required to answer. The Wife specifically denies that Mr. Lau stated that his purpose in coming to the house was to serve divorce papers on her. The Husband has given an account of the telephone conversation which is to the effect that he informed the Wife that the papers were in connection with his application for a divorce and he in turn denies having said that they related to the withdrawing of proceedings which had previously been discussed between them. He confirms that when he spoke to Mr. Lau he asked him to do his best to serve the papers on the Wife. 7. On 14th April Mr. Lau went to the Wife's home with a total of ten documents which he intended to serve upon her. These included the petition. It is, of course, argued that the very fact that he took with him the petition shows that the Husband's advisers were at least in doubt whether the petition had been duly served on 12th April. If that was their opinion it is no doubt a matter which we have to take into consideration but it is not binding upon us. On this occasion Mr. Lau was accompanied by a Mr. Lee Pak-chiu, a bailiff of the court, who was there to serve "the inter partes summons and the relevant documents". As I understand it the inter partes summons was a summons for an injunction to prevent the Wife from molesting the Husband. It is common ground that at the invitation of the Wife she and the two process servers went from the house to the Country Club. According to Mr. Lee he there explained to her the purpose of his visit and served upon her the documents which he had. He says that as he was trying to explain to her the contents of these documents the Wife "became very angry and responded in a vigorous manner". If that affidavit stood alone there could be no suggestion that the petition had been properly served but in his affidavit Mr. Lau said "Mr. Lee explained to the [Wife] the contents of the papers and advised her that she should consult a lawyer". He went on to say that Mr. Lee put "the papers" on the Wife's knees, that they fell to the floor and that the Wife picked them up and threw them at Mr. Lee. hitting him on the head. "The papers" in that affidavit clearly included the petition. According to Mr. Lau, therefore, all the documents taken by both process servers were in the event served by Mr. Lee. The Wife denies that anybody explained to her the nature of the documents but otherwise does not contest the events as described by Mr. Lau. Her contention is that she had no idea that the papers related to a suit for divorce then being pursued by the Husband, but she does not explain why she should throw them at the bailiff's head. 8. The decree absolute of divorce having been granted on 24th May 1976, the Wife asserts that she chanced to hear of it from friends in May 1977, prior to which she had no knowledge that she had been divorced. I do not propose to review the evidence in detail for I am satisfied that there is overwhelming evidence that she knew of the divorce many months before that and I have not the slightest doubt that her assertion to the contrary is false. She has, of course, not explained why she delayed in taking professional advice and making application to set aside the decrees, and that is sufficient reason for dismissing the present application. In the light of all the evidence the Wife has not begun to satisfy me that if leave were granted she might be able to persuade the court that she had not been served with the petition. Whether there was service on 14th April 1976 it is not necessary to decide, for I have no doubt that service was effected on 12th April and that the petition was included amongst the documents to be served on 14th April in the hope that any argument which might be available concerning the sufficiency of the service on 12th April would be rendered nugatory. 9. I would dismiss this application. 4th January 1979.
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----------------- Coram: Huggins, Pickering, JJ.A. and Trainor, J. Date of Judgment: 4 January 1979 ----------------- JUDGMENT ----------------- Pickering, J.A.: 10. In my view the service of the Petition effected upon the Applicant upon the 12th April 1976 was good and effective service. That effected presumably ex abundante cautela on the 14th April, was probably good but I refrain from a positive assertion to that effect because there is some ambiguity in the affirmations of Lee Pak Chiu and Thomas Lau, the two gentlemen who attended upon the Applicant upon that day for the purpose of serving, or in some instances re-serving, documents upon her. Mr. Lee says that he attended for the purpose of serving an Inter Partes Summons and "the relevant documents" presumably a reference to those documents relevant to the Inter Partes Summons. Mr. Lau's affirmation lists ten documents which he intended to serve upon the Applicant and those ten included the Petition. Mr. Lee deposes to having served the Inter Partes Summons and the "relevant documents" upon her. Mr. Lau's affirmation relates that Mr. Lee put "the papers" on the Respondent's knees from where they fell to the floor. It is not clear what is meant by "the papers" though a plausible construction is that the reference is to the ten papers or documents which had been listed earlier in the same affirmation. The matter is ambiguous and it is unfortunate that neither deponent listed the documents which Mr. Lee served on the Applicant by placing them on her knees. Certainly any finding that the service of the Petition on the 14th was not good service would involve the proposition that the papers placed on the Applicant's lap by Mr. Lee did not include the Petition and those other papers mentioned in Mr. Lau's affirmation which were not also mentioned in Mr. Lee's affirmation. This in turn would involve the unlikely proposition that Mr. Lau left the Country Club having spent half an hour there in the company of the Applicant without making any attempt to serve, or re-serve, the Petition upon her either by his own hand or that of Mr. Lee. However the matter is ambiguous and I am unable positively to say that the service of the Petition on the 14th was good and valid service whilst being entirely satisfied that the service on the 12th was valid and effective Mr. Lau having "spent some time explaining to the (Applicant) the nature of the documents" whatever her husband may or may not have told her on the telephone just previously. That she was in no doubt that the papers related to divorce and not to her release from that prospect is evidenced by her subsequent conduct on that occasion. On her version she refused to accept the papers and handed them into Mr. Lau's taxi. On Mr. Lau's version and that of Mr. Lau Ka Luk, the applicant's gardener, the Applicant threw the papers at the taxi from where they fell to the ground. 11. The learned judge made an order upon the 20th April which did not deal with the efficacy or otherwise of either of those services. Upon one construction of his order it could be said that because he ordered service by double registered post of (inter alia) the pleadings, he was holding that the service of the 12th April was not good service. If that be a valid construction of his order the judge was wrong. If that be not a valid construction of his order that part of his order which required service of the pleadings by double registered post (apparently including the Petition) was superfluity the Petition having been already validly served. 12. In addition to the issue of valid service in respect of which I unhesitatingly find in favour of the Respondent, I would refuse leave to appeal out of time upon the ground of the delay of the Applicant in not consulting solicitors until May 1977 whereas I am satisfied that she was aware of the fact of her divorce from at the very latest, July of the previous year. 13. I would refuse leave to appeal out of time. Costs to the Respondent. Certificate for two counsel. Representation: Jackson-Lipkin, Q.C., Rodway and Peter Cheung (P.H. Sin & Co.) for Applicant. Henry Litton, Q.C. and Patrick Chan (Wilkinson & Grist) for Respondent.
Coram: Huggins & Pickering, JJ.A., & Trainor, J. in Court Date of Judgment: 4 January 1979 ----------------- JUDGMENT ----------------- Trainor, J.: 14. I have had the opportunity of reading in draft the judgment which Huggins J.A. has delivered and there is little I can usefully add. I am in complete agreement with him that the evidence is overwhelming that the wife was aware of the divorce long before she took steps to set aside the decree absolute. In my opinion she was aware of it certainly not later than the 17th December, 1976 when she was ejected from the family home and put up in the Furama Hotel but most probably on the 31st July, 1976. Her inactivity until May, 1977 was inexcusable. 15. I am satisfied that the service of the Petition on the wife on the 12th April, 1976 was good and sufficient service and although I have reservations as to what happened on the 14th it is immaterial as the service on the 12th is what counts. I too would dismiss this application to appeal out of time.
Representation: Mr. Jackson-Lipkin, Q.C. and Mr. Rodway and Mr. P. Cheung instructed by P.H. Sin & Co. for applicant. Mr. H. Litton, Q.C. and Mr. P. Chan instructed by Wilkinson & Grist for respondent. |