L v. L

CACV 98/2010

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 98 of 2010

(on appeal from FCMC NO. 829 of 2008)

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BETWEEN

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Before:     Hon Hartmann JA, Stone J and Poon J in Court

Date of Hearing:    2 June 2010

Date of Judgment:    2 June 2010

J U D G M E N T

Hon Hartmann JA:

1.By means of this appeal, the appellant seeks to set aside a decree absolute of divorce. The decree, which dissolved the marriage of the appellant and the respondent, was granted by the Family Court on 28 August 2008. The appellant contends that she was unaware of the divorce proceedings until after the decree absolute had been granted. She seeks to have the decree set aside on the basis of fraud.

2.The procedure adopted by the appellant, that of proceeding by way of appeal rather than applying to the Family Court itself to have the decree set aside, has been held by this Court to be appropriate: see LCM v LYY [2003] 2 HKLRD 690.  The only issue, therefore, is whether this Court can be satisfied on the materials presented to it that the decree absolute should be set aside.

3.The respondent is in court today.  He has been informed that criminal investigations are being conducted into this matter.  He has been warned that he need not say anything which he believes may incriminate him.  In light of that warning, he has declined to say anything other than to say that the appellant has “cheated” him but he has no evidence to prove it. 

4.The parties were married in Hong Kong on 22 March 2004.  Some four years later, on 21 January 2008, the respondent issued divorce proceedings in the Family Court, seeking a dissolution of the marriage on the basis that he and the petitioner had lived apart for least two years immediately preceding the presentation of the petition.

5.In the petition, the respondent asserted that there was no child of the marriage.  The appellant contends that this was a false statement and would have been made by the respondent knowing it to be false.  On the evidence that the appellant has put before us, it is apparent that there is a child of the marriage, a daughter named LM who was born on 25 August 2004.  The child’s birth certificate gives the name of the respondent as the father, his Hong Kong identity card number being given.  In addition, certain photographs have been produced by the appellant which, she asserts, depict the parties with their infant child.  Three of these photographs show the respondent and the appellant together with a baby.  Two show the respondent alone holding the same baby.  In four of these five photographs the respondent is shown wearing different clothing, an indication that the photographs were taken at different times.

6.In his petition for divorce, the respondent said that the appellant’s address and occupation were unknown to him.  In an affirmation dated 4 March 2008 filed in support of an application for substituted service, he went into greater detail.  He said that the appellant had left him in October 2004 and that since that date he had lost contact with her.  He had no knowledge of where she lived or worked.  He said that he had lost contact with her colleagues and also with her family members.  He had no knowledge of where her family members lived and had no means to locate them.

7.The respondent said that he was aware that the appellant used to read the Oriental Daily News, a Hong Kong newspaper, proposing that service of all necessary documents should be by way of publication in that newspaper.  As a result of these representations, on 7 March 2008 an order for substituted service was made.

8.The appellant contends that the majority of these statements were also false, a subterfuge on the part of the respondent to avoid having to effect personal service of the divorce papers on her.

9.In her affirmation, the appellant denies deserting the respondent in late 2004.  To the contrary, she asserts that she and the respondent lived together with their daughter in the Mainland until about January 2008 when the respondent left the matrimonial home.  On that basis, the assertion made in the respondent’s petition that the parties had been living apart for least two years was also false.

10.As for the respondent’s assertion that she had a habit of reading the Oriental Daily News, the appellant has said that she reads simplified characters only, not the more complex characters used by that newspaper.

11.In her affirmation, the appellant went on to say that, even after the parties had separated, they would keep in telephone contact.  However, difficulties arose when she asked the respondent for maintenance for the child.

12.According to the appellant, it was only in May 2009, during a telephone conversation with the respondent, that he informed her that he had no further obligations towards her or the child as he had now obtained a decree absolute to dissolve the marriage.

13.On that evidence, unopposed as it is, we allow the appeal.  We set aside both the decree absolute and the decree nisi.  Liberty is given to restore the divorce petition for hearing or for the making of any further order.

14.There will be an award of costs to the appellant.  In addition, there will be taxation of costs in accordance with the Legal Aid Regulations.

Hon Stone J:

15.I agree with the judgment of Hartmann JA.

Hon Poon J:

16.I also agree with the judgment of Hartmann JA.

Mr P K Chan, instructed by MessrsEric Yu & Co, for theRespondent/Appellant

Petitioner/Respondent in person