Wyws also known as Syww v. Cjb

FCMC 12719/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 12719 OF 2008

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R U L I N G
(Striking Out and Restricted Application Order)

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1.Before this court are 2 summonses, one from each party.

2.The first is an application taken out by the respondent husband on 24 April 2014 for the “rehearing on grounds of fraud by (the petitioner) in the Nullity case”. In other words, the husband is asking for the re-trial of the main suit.

3.The second, obviously in response to the respondent’s application, is the petitioner wife’s application dated 23 June 2014 to strike out the respondent’s application and for a Restricted Application Order (“the RAO Order”) according to the principles expounded by the Court of Final Appeal in Ng Yat Chi v Max Share Ltd & Another [2005] 8 HKCFAR 1.  

4.For convenience, I shall refer the petitioner as “P” and the respondent as “R” in this Ruling.

5.Initially R’s summons was adjourned on 4 July 2014 pending the determination of P’s summons.  After having read the papers, I considered that both applications should be dealt with in one-go and the parties also consented to this approach to be taken.

6.During the hearing, Ms Lau, counsel for P, applied for the withdrawal of P’s application. Leave was granted for her to do so and since R did not seek for costs, I gave an order that there be no order as to costs of P’s application.  I would explain below how the application has come to this.

Background

7.Before I proceed to deal with the parties’ applications, I need to set out the factual background.

8.P is a local Chinese and R American.  They married on 21 March 2003 in the United States.  Subsequently, they moved to live in Hong Kong.

9.There is one child of the family, a daughter, born by P from her former marriage. This daughter has been formally adopted as R’s daughter by virtue of a court order dated 3 January 2007 under the Adoption Ordinance, Cap 290.

10.On 12 October 2007, R (as the petitioner in that case) issued a divorce petition to which P (as the respondent) had filed an Answer and Cross Petition. Eventually, on 28 July 2008 R issued a summons to withdraw his own petition. Subsequently, by consent, both R (as petitioner)’s divorce petition and P’s cross petition (as respondent) was dismissed on 8 August 2008.  It transpired during those proceedings that at the time when the parties married, R was still married to another woman called Veronica.

11.Thereafter, on 15 October 2008, P issued the present proceedings for the nullity of her marriage with R on the ground that at the time of their marriage, R was still married to Veronica.

12.The trial of the petition was fixed to be heard on 22 July 2009.  On 18 July 2009, the court received a letter from R seeking a postponement of the hearing.  Notwithstanding that the request was not acceded to by HH Judge Chu (as she then was), the presiding judge of the case at that time, R did not attend the hearing. After having heard P’s evidence in court, the learned judge granted the decree nisi on 22 July 2009 to annul the marriage.  

13.Nothing further was heard from R and the decree was made absolute on 17 September 2009 (“the DA”).

14.Then about 18 months later, on 8 March 2011, R took out a summons to set aside the Decree Nisi (“the 1^st Summons”).  In his supporting affirmation, R said when he was married to Veronica, that woman was already married to another gentleman in Hong Kong, so he could not have lawfully married to Veronica.   It followed that he was lawfully married to P.  R also made a number of allegations against P including that she was not single as shown on the marriage certificate because she had married once in Hong Kong.  He also said he was investigated for bigamy in Hong Kong.

15.It transpired that in the interim R had issued his own nullity proceedings against Veronica (being FCMC 5836/2011) on 6 May 2011 and obtained a decree nisi from HH Judge Melloy on 23 November 2011.

16.I do not think I need to rehearse what happened in the subsequent callover hearings for the reason that the same have been set out by HH Judge Chu in her Ruling dated 16 August 2012 (“the said Ruling”) which I shall turn to in due course.  Suffice for me to say is that the learned judge was of the view that the proper procedure was for R to issue a summons to appeal out of time against the DA.  The learned judge therefore adjourned the 1^st Summons sine die with liberty to restore with costs reserved on 13 February 2012.

17.Then on 21 May 2012, R took out another summons for leave to appeal out of time against the DA and for HH Judge Chu to rescue herself (“the 2^nd Summons”).

18.R contended that the DA granted to P was “illegal”, as the marriage between him and Veronica was declared void and not lawful by HH Judge Melloy.  

19.The 2^nd Summons was heard on 1 August 2012 and the said Ruling was handed down on 16 August 2012 dismissing both of R’s applications.  I do not think I need to deal with recusal ground here as it is not relevant to the present discussion.  As for the application for leave to appeal out of time, HH Judge Chu stated her reasons in paras 25 to 29 of the said Ruling,

“25. Mr Li, Counsel for (P), has only addressed this Court on the time issue. He has referred this Court to s 14(3)(d) of the High Court Ordinance (HCO), namely :-

“No appeal shall lie-

(a)…

(b)…

(c)…

(d) from an order absolute for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree”

26. Mr Li has submitted that s 14 (3) (d) of HCO also applies to the District Court, and has referred this Court to the case of LCM and LYY CACV 445 of 2002 [2003] 2 HKLRD 690 where the Court of Appeal was of the view that they did not think that s 14(3)(d) of HCO was only applicable to the Court of First Instance of the High Court.

27. As I have said earlier (P) clearly knew that the DN hearing was fixed on 22 July 2009.  Although he wrote a letter to seek an adjournment, he did not take out any summons for this purpose as directed by this Court.  As this Court did not make any order for adjournment of the hearing, he should therefore know full well that the hearing for the DN would proceed and would be granted on 22 July 2009.  Yet he failed to turn up. Thereafter, he could have appealed against the granting of the DN, but he did not.

28. It was only about 18 months later that he took out his 1^st Summons and another 3 months went by before he took out his 2^nd Summons.  He had not provided sufficient reasons as to why he did not appeal against the DN within time.

29. In the circumstances, I agree with Mr Li that (R) had had time and opportunity to appeal from the DN, but he had failed to do so. Therefore under s 14(3)(d) of HCO no appeal shall lie from the DA.  Further this Court has no power to extend the time of appeal against the DN (see paragraph 59/16/4 of the Hong Kong Civil Procedure).  Whether this Court has power to grant leave to appeal out of time against the DA is uncertain (see Ruling in FCMC 12016 of 2010 dated 31 July 2012).  In any event, in view of his own various marriages, his marital status at the time of his marriage to (P) being not clear, nor according to him, (P)’s.  Having considered all the circumstances of this case, I am not satisfied that his appeal has a reasonable prospect of success.  Even if I have power to do so, I would refuse him leave to appeal out of time against the DA.”

20.Thus, R failed because he was barred by section 14(3)(d) of the High Court Ordinance, Cap 4.

21.R was dissatisfied with the decision.  He sought leave from the Court of Appeal on 29 August 2012 to appeal against the DA, this has become HCMP 1837/2012.

22.The Court of Appeal agreed with the court below and dismissed his application.  Hon Fok JA said the following in para 11 of the judgment (S v B, HCMP 1837/2012 (unreported, 5 November 2012)),  

“11. The answer proffered by the husband to the s 14(3)(d) point is not that he did not know that the decree nisi had been made but instead is that he did not have an opportunity to file an appeal against the decree nisi because he did not have a decree of nullity in respect of his earlier marriage to Veronica. This point is without substance and we reject it. The opportunity to appeal, for the purposes of s 14(3)(d) existed, regardless of whether the husband had the decree of nullity in respect of his marriage to Veronica. Contrary to the husband’s contention, the opportunity to appeal in s 14(3)(d) does not exist only when the evidence in support of such an appeal has been obtained, still less that it only exists when it is shown that the party seeking to appeal would win such an appeal. The husband could have appealed against the decree nisi in anticipation of his obtaining the decree of nullity in respect of his marriage to Veronica, applying if necessary in his appeal for an adjournment pending his obtaining that decree of nullity.”

23.Now after a lapse of nearly 2 years, on 24 April 2014 R took out his summons for the “rehearing” of the nullity case on the ground of fraud by P.

24.Clearly, R set out all the grounds he could have thought of in his 8-page application.   For instances, R submitted that the nullity does not comply with the American laws.  He alleged in his application and repeated the same in the hearing that P had told various lies to the court in the proceedings, that she had misled the court as a good mother and in fact the daughter is in danger, that she was a violent person, that she had stayed in a mental hospital, that she had affairs with many men and that she in fact was a wealthy person.  Even P’s psychiatrist who prepared a report for P is a liar.  As for him, he was the victim of many assaults by P.  He also mentioned about division of the family’s assets; and the dispute he has with P over their business.  He had helped P in her business but then he was kicked out from it. He also alleged that P’s house in the Mainland was paid off during the marriage with marital assets.  He also complained that in fact he was never served with the petition for nullity.  He was never given the opportunity to be present or respond to P’s accusations.  Hence, there was no fairness in the case.  During the hearing, R repeatedly stressed that P has committed the criminal offence of perjury.

25.Further, though it is not in the application, R complained in his affirmations that he has not been able to see his daughter whom he should have access by virtue of the Order dated 22 July 2009.

26.I will deal with P’s application first.

Striking Out and the ROA Order

27.In her summons P cited Order 18, rule 19 RHC and/or the inherent jurisdiction of the District Court in support of her application.  She asked for R’s application to be struck out on the grounds that:

1. It discloses no reasonable cause of action; and/or

2. The same is frivolous and vexatious; and/or

3. The same is otherwise an abuse of the process of the court.

28.Ms Lau conceded in the hearing that Order 18, rule 19 RHC deals with the striking out of pleadings only and as such, the provision is not applicable here.  In my view, this must be correct.  There is no need to have such an application.  What P should have done is to resist R’s application and to seek for its dismissal. 

29.As regards the ROA Order, given that the present application is R’s first attempt to re-litigate the issue, ie the nullity of his marriage with P, I raised the question of whether R would be qualified to be a vexatious litigant according to Ng Yat Chi v Max Share Ltd & Anor. Further, P’s draft ROA Order is framed in wide terms; it prohibits R from making any further application to the court in these proceedings.  Apparently R has been trying to re-litigate the main suit only but has never taken out any application dealing with ancillary relief or the daughter; so as far as these matters are concerned, I have doubts over whether he can be regarded as a vexatious litigant.  I therefore sought clarification from Ms Lau on whether the ROA Order ought to be extended to cover ancillary relief and children matters.

30.After a short adjournment for P to consider her position, leave was granted for her to withdraw this application.

R’s Application for Rehearing

31.I now turn to R’s application. 

32.I have set out his grounds above so I do not propose to repeat them here.  R repeated himself in the hearing that he asks for a rehearing because he is not a bigamous person and he wants to clear his reputation.  In this regard, as is evident from the relevant judgments, the fact that he obtained a decree nisi to annul his marriage with Veronica was in the full knowledge and attention of HH Judge Chu and the Court of Appeal when the relevant decisions were made.

33.The short and direct answer to this application is that this is entirely unmeritorious.  His application for leave to appeal against the DA has already been dealt with by the Court of Appeal; and as such, this is final.  Section 14AB of the High Court Ordinance, Cap 4 provides that, “No appeal lies from a decision of the Court of Appeal as to whether or not leave to appeal to it should be granted.”   Therefore, the decision of the Court of Appeal refusing leave to appeal is final.  There must be finality in the proceedings. An appeal is precluded by reason of s 14(3)(d) of the High Court Ordinance, the legislative intent of which is plainly to bring finality to matters to which it applies.  What R is seeking is to re-litigate the nullity issue through the back-door and is doomed to fail.  This is an abuse of the court process and I have no hesitation to dismiss it. 

Order

34.For the above reasons, the respondent’s summons is dismissed. 

Costs

35.As for the costs, I see no reason why costs should not follow the event.  I give an order nisi that the respondent do pay the petitioner’s costs of his application, to be taxed if not agreed.  For the purpose of taxation, half of the time for the hearing of 2 January 2015 is apportioned to R’s application.

36.Finally, before I conclude I have to make it clear that if the respondent persists in re-opening up the main suit which has already come to a finality whether by way of collateral attacks or otherwise, he may be liable to have a ROA Order imposed on him.

Ms Karen YY Lau, instructed by David YW Man & Co, Solicitors, appeared for the petitioner

Mr B, the respondent, appeared in person