Cheng Kwok Yee v. Cheng Lee Kwan Yuen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 21 OF 1970

(On Appeal from Divorce Action No. 3 of 1969)

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JUDGMENT

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Blair-Kerr, S.P.J.:

1. On 21st January we dismissed this appeal.  I do not think it is necessary to record our reasons in any great detail; but briefly the facts are these:–

2. The appellant (whom I shall prefer to as “the husband”) left the matrimonial home on 17th October 1968 and he has not returned since then.  On 3rd January 1969 the respondent (whom I shall refer to as “the wife”) presented a petition for the dissolution of her marriage to the husband on the ground of his cruelty to her.  The wife’s solicitors were unable to serve the petition upon the husband; and so they obtained an order for substituted service.  The divorce suit then proceeded ex parte; and on 16th June 1969 a decree nisi was granted to the wife, which decree was made absolute on 22nd September 1969.

3. In the meantime, on 22nd July 1969 the wife gave notice of her intention to apply for an order for maintenance.  Despite the order for substituted service, the wife’s solicitors made every endeavour to serve the husband personally with this notice and other court process; but without success.  They therefore complied with the order for substituted service; and the matter proceeded ex parte until 1st December 1969 when the husband entered an unconditional appearance in the cause.

4. On 20th February 1970 he took out a summons by which he sought an order that the wife’s application for maintenance be stayed until further order; and on 27th February 1970, Briggs J. made an order for a stay provided the husband paid the wife $3,000 per month interim maintenance.

5. The husband’s notice of motion of appeal was filed on 18th June 1970.  His allegation was that he was absent from the Colony in Singapore, Japan, the United States of America, and elsewhere when the divorce suit was instituted and when the decrees nisi and absolute were pronounced and that he knew nothing at all about these matters.  In his affidavit he went on to allege that his wife knew that he was absent from the Colony at all material times; that she had withheld this information from the court; and that consequently the order for substituted service was obtained irregularly.

6. The appeal came before this court on 12th November 1970.  Counsel for the husband found himself in a difficulty.  An unconditional appearance had been entered by the husband.  The effect of this was that, even if there was any irregularity in obtaining the order for substituted service of the petition (which the wife, by her affidavit, strenuously denied), the husband, by his entry of an unconditional appearance, was deemed to have waived any such irregularity. Counsel for the husband sought an adjournment to consider the position.  This court therefore adjourned the appeal to enable the husband to consider an amendment or withdrawal of the memorandum of appearance entered by him on 1st December 1969.

7. The appeal again came before this court on 25th February 1971 when it was again adjourned on the application of the husband because no step had been taken by him for the amendment of the memorandum of appearance.

8. In the meantime, the wife’s legal advisers endeavoured to get the Registrar to deal with her application for maintenance.  But, naturally, this could not be dealt with finally because of the outstanding appeal.  The most that the Registrar could do was to continue the order for $3,000 per month interim maintenance.

9. The husband was clearly in contempt of this order.  His solicitors had considerable difficulty in obtaining funds from him to pay the wife’s interim maintenance. Payments were invariably late.  No maintenance at all was paid in June and July 1971; and as regards November and December 1971 and January 1972, his solicitors say that he has not placed them in funds to enable them to pay any maintenance.

10. But, that is not all.  The husband says that in February 1969 he “settled down” in Honolulu.  He has been residing there since then.  He has given no indication as to when, if ever, he intends to return to Hong Kong; and, the evidence is that he has disposed of some of his assets in Hong Kong; and there are now pending before the Registrar applications to set aside those dispositions on the ground that they were made fraudulently and with the intention of defeating any order for  maintenance which may eventually be made against him.  But again these applications could not be proceeded with until the appeal had been disposed of.

11. On 21st January 1972, counsel for the husband moved the court for:–

1. an order that the appeal be struck out for want of prosecution; alternatively

2. such other order as to the court might seem just and necessary.

It then appeared that the husband has still not filed any application to amend his memorandum of appearance; and there was no evidence before the court that he intended, if successful in his appeal, to file any cross petition for divorce, although in an earlier affidavit his suggestion was that the boot was on the other foot and that the wife had been cruel to him.

12. In other words, it seemed abundantly clear that the husband was simply “sitting on” his notice of appeal, refusing to take any step with a view to bringing the appeal on for hearing, thereby blocking further consideration of the wife’s application to set aside the dispositions of his assets and her application for maintenance.  And, of course, the wife, although no longer a married woman, could not take the risk of re-marrying with this appeal hanging over her head.

13. Not only was the husband in contempt of court as regards the order for interim maintenance, but his whole conduct appeared to be an abuse of the process of this court.

14. There was some doubt as to whether an appeal could be struck out for want of prosecution as in the case of an action.  Furthermore, we did not consider that striking out the appeal was the most appropriate course in the circumstances because this would have left the husband free to file a fresh notice and do nothing towards prosecuting the appeal, thereby holding up for a further period the determination of the wife’s applications pending before the Registrar.  The only satisfactory course was to call on the appeal for hearing at once (counsel for the wife had taken the precaution of having it listed) and dismissing it.

15. As I have said, the husband has chosen to live in Hawaii, and taking instructions from a litigant living abroad may well take longer than in cases where the litigant resides in Hong Kong.  But I must say that when the appeal came up before this court in November 1970 and February 1971, even then I had considerable doubts as to the husband’s bona fides; and I well remember that on 12th November 1970 counsel for the wife submitted that if the court were to accede to the husband’s application for an adjournment, it should be on the condition that if he failed to pay interim maintenance strictly as ordered, the appeal should stand dismissed without further order, or alternatively that the wife would be at liberty to apply to a single judge to have the appeal dismissed.  We did not adjourn on those terms because we felt that it was wrong to makeany order which might savour of prejudging the issues in the appeal.

16. However, when, by say April 1971, the husband had still not taken any step towards prosecuting his appeal, the wife could, appropriately, have moved the court to have the appeal dismissed; but, as I understood counsel for the wife, there was no way of getting this appeal before a Full Court because of the congestion in the various lists of cases (civil and criminal) pending in the Supreme Court i.e. criminal trials and other first instance proceedings.

17. For some considerable time now, I have been very conscious of the delays which are being experienced in the disposal of appeals both civil and criminal.  There is, in my view, only one way in which this unsatisfactory state of affairs can be remedied and that is by the creation of a proper Court of Appeal in Hong Kong; and I am happy to endorse judicially the very welcome remarks of the Chief Justice a few days ago at the opening of the January Assizes.  The old adage that justice delayed may amount to justice denied needs no emphasis. 

Charles Ching (instructed by Messrs. K.C. Yung & Co.) for appellant.

Jackson-Lipkin and Martin Lee (instructed by Messrs. P.H. Sin & Co.) for respondent.