Read the full judgment text of CACV 128/2011 on BabelCite. This Court of Appeal judgment was delivered on 6 March 2012 before Hon Cheung, Yuen and Chu JJA.
Civil Appeal – Family Law – Divorce Proceedings – Substituted Service – Fraudulent Misrepresentation – Setting Aside Decrees – Costs – In FCMC1703/2009, the wife (DT) petitioned for divorce from the husband (SR) on the ground of separation since December 2006 – She made an application for substituted service supported by two detailed affirmations made on 16 February 2009 and 27 February 2009 explaining how she had lost all means of contact with the husband – Substituted service was granted by Deputy District Judge Tracy Chan on 3 March 2009 – No defence to the petition was filed and a decree nisi was granted by Deputy District Judge Chan on 23 July 2009 followed by a decree absolute granted by Registrar Auyeung on 17 September 2009 – The husband appealed out of time alleging the wife's affirmations were false as she knew his mobile number and employer – He claimed he had no knowledge of proceedings until December 2010 when informed by the Immigration Department – Both parties are Nepalese and the husband had been granted permission to stay in Hong Kong only as a dependant of the wife – Leave to appeal out of time against both decrees was granted by consent by Deputy District Judge Own on 13 July 2011 – The court considered the appeal following the procedure approved in LCM v LYY CACV445/2002 – Evidence from an interview the wife gave to the Immigration Department in December 2007 showed she was well aware of the husband's mobile telephone number and the identity of his employer – The wife did not challenge the husband's evidence that he did not see the notice of proceedings published in the newspaper pursuant to the order for substituted service – The court held the appeal should be allowed as the decrees were obtained by fraud – The decree nisi made on 23 July 2009 and the decree absolute made on 17 September 2009 were set aside – Liberty was granted to both parties to restore the petition for hearing on giving 14 days notice to the other party – Regarding costs, the respondent to the appeal (the wife) was ordered to pay the costs of the appellant (the husband) to be taxed if not agreed – A certificate for one counsel was granted – The wife had indicated she would not oppose the application to set aside the decrees but filed a third affirmation contesting some matters raised by the husband – The court noted it was not necessary to deal with disputes on other matters arising from the husband's affirmations and the wife's third affirmation – The judgment was given by Hon Yuen JA on behalf of the Court consisting of Hon Cheung, Yuen and Chu JJA.
Legal issues: Setting aside divorce decrees · Costs of appeal
Outcome: Appeal allowed; decree nisi and decree absolute set aside.