HCA 1194/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 1194 OF 2015
_________
| BETWEEN |
| | WONG SIK YUK (黃旭玉) | Plaintiff |
| and |
| | TSUI LEN (徐琳) | Defendant |
_________
| Before: Deputy High Court Judge Kent Yee in Chambers (open to public) |
| Date of Hearing: 7 July 2016 |
| Date of Decision: 9 January 2017 |
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DECISION
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Introduction
1. This is an application of Mr Tsui by his summons dated 1 February 2016 (“the Summons”) for an order that the Statement of Claim of Madam Wong filed herein be struck out on the ground that it is scandalous, frivolous or vexatious and/or it may prejudice, embarrass or delay the fair trial of the action and/or it is otherwise an abuse of process of the court.
2. By this action, Madam Wong seeks to set aside the judgment entered against her in a matrimonial lawsuit under FCMC No.13455 of 2011 (“the Divorce Proceedings”) upheld by the Court of Appeal by her allegation that the marriage between Mr Tsui and her dissolved thereunder (“the Subject Marriage”) was actually null and void due to Mr Tsui marriage with another lady which was valid and subsisting at the time of the Subject Marriage. Hence, all the orders made in/arising from the Divorce Proceedings were obtained merely by fraud or perjury and should be set aside.
3. Mr Tsui’s position is that Madam Wong’s claim disclosed in the Statement of Claim is thoroughly bad both in law and in fact. After filing his 3-page Defence, he took out the Summons a few months later to strike out the Statement of Claim.
4. I shall first set out the undisputed background facts of this action. I believe I can take most of them from the Statement of Claim to which Mr Tsui in his Defence has made admission save that he has added a further piece of information in regard to the Divorce Proceedings.
Background facts not in dispute
5. Madam Wong and Mr Tsui got married in Las Vegas, Nevada, United States of America on 8 August 1997.
6. On 25 September 2011, Mr Tsui filed a petition to commence the Divorce Proceedings in a bid to dissolve the Subject Marriage with Madam Wong. Mr Tsui in his Form 21 affirmation filed in the Divorce Proceedings deposed to the fact that he was lawfully married to Madam Wong.
7. A decree nisi of divorce in respect of the Subject Marriage was granted on 18 January 2012. The trial on ancillary relief ensued and Mr Tsui maintained during the trial of ancillary relief that there was no other marriage subsisting at the time of the Subject Marriage.
8. On 3 December 2013, DDJ Grace Chan delivered a judgment and made the following orders (“the Ancillary Relief Orders”):
(1) Madam Wong shall pay a lump sum of HK$16,970,000.00 to Mr Tsui for his maintenance;
(2) Madam Wong and Mr Tsui should keep the assets then under their respective names subject to the foregoing payment;
(3) Upon compliance of the payment obligation, the ancillary relief claims of Madam Wong and Mr Tsui be dismissed; and
(4) A costs order nisi that Madam Wong shall bear Mr Tsui’s costs of the ancillary relief proceedings (including all costs reserved) with certificate for counsel, to be taxed if not agreed.
9. Madam Wong applied for leave to appeal to the deputy judge but in vain. However, she succeeded in her application to vary the costs order nisi to the extent that Mr Tsui shall only have 80% of his costs of the trial relating to ancillary relief.
10. Madam Wong renewed her application to the Court of Appeal and it was rejected on 25 June 2014.
11. The decree nisi was made absolute on 18 September 2014 (“the Decree Absolute”). From then onwards, Mr Tsui commenced enforcement actions against Madam Wong.
12. Firstly, Mr Tsui managed to obtain three garnishee orders absolute (“the Garnishee Orders”) against Madam Wong in respect of her three bank accounts on 28 November 2014.
13. Mr Tsui further obtained a charging order absolute against a property of Madam Wong (“the Charging Order”) on 27 March 2015.
14. Madam Wong commenced the present action on 29 May 2015. The underlying complaint is that Mr Tsui made a fraudulent representation to the court in the Divorce Proceedings in that the Subject Marriage was in fact bigamous and hence null and void due to his marriage with one Madam Lai in the PRC in 1979 (“the Disputed Marriage”). Thus, she prays that all the Decree Absolute, the Ancillary Relief Orders, the Garnishee Orders and the Charging Order should be set aside and that there should be a declaration that the District Court had no jurisdiction to grant the Decree Absolute. Madam Wong further asks for a refund of the sum of HK$137,683.47 paid to Mr Tsui pursuant to the Garnishee Orders.
15. The following evidence emanating from the defence is not challenged. Prior to the Subject Marriage, Mr Tsui told Madam Wong that Xu Xiao Shan (“XXS”) was the daughter of Madam Lai and him and that they had never been married. He also told Madam Wong that Madam Lai was his immediate cousin.
16. Further, Mr Tsui told Madam Wong that he married one Madam Chow in Tianjin in 1955 and that this marriage was dissolved in 1983.
17. On the other hand, Madam Lai was previously married to one Mr Chan in the PRC in 1967 and they were divorced in 1983.
18. Mr Tsui’s solicitors wrote to the legal representatives of Madam Wong to request for further particulars in respect of her allegation of the Disputed Marriage. Madam Wong refused and contended that her statement of claim is properly pleaded with sufficient particulars.
19. Before I render my analysis of the grounds cogently advanced by Mr Wu, for Mr Tsui, it is instructive to review the following established principles relating to a striking out application neatly summarized in the White Book.
Applicable legal principles
20. Striking out is a drastic remedy and an order should only be made as the last resort. The onus is on the applicant to demonstrate that the case is one in which it is “plain and obvious”. It is only in plain and obvious cases that the court should exercise its summary powers to strike out the pleading under this rule.
21. There should be no trial upon affidavit. Disputed facts were to be taken in favour of the party sought to be struck out. Nor should the court decide difficult points of law in striking out proceedings. The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out. If the court does not think the matter to be clear beyond doubt or if it fails to be satisfied that there is no reasonable cause of action or that the proceedings are frivolous or vexatious, then there should be no striking out. One must be careful not to drive a plaintiff from the judgment seat nor should the court decide difficult points of law. Lastly, The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out. The mere fact that the case is weak and not likely to succeed is no ground for striking it out: Hong Kong Civil Procedure 2017 Vol.1 §18/19/4 at p.459.
Merits of the present application
22. Mr Wu submits that the claim of Madam Wong is doomed to failure because (1) the Disputed Marriage could not exist at all and (2) Madam Wong commenced the present proceedings merely to avoid/delay the enforcement of the Orders, the Garnishee Orders, the Charging Order and all the costs orders in the favour of Mr Tsui.
23. Madam Wong’s evidence in support of her allegation that the Disputed Marriage subsisted in 1997 is mainly based on the result of the investigation of one Mr Liu in the PRC. Mr Liu was the lawyer instructed by Madam Wong. He obtained a certificate (“the Certificate”) dated 12 January 2015 issued by Hugu Villagers Committee of Jiaocheng Town of Jiaoling County (中國蕉嶺縣蕉城鎭湖谷村委員會) (“the Committee”). The Certificate was notarized by the Notary Public Office of Jiaying, Meizhou City, Guangdong Province, PRC (“the Public Office”) and the PRC Ministry of Foreign Affairs. The notarial Certificate is dated 4 March 2015.
24. The gist of the Certificate, which was hand-written in the Chinese language, is that according to the result of investigation, Mr Tsui in about 1979 married Madam Lai in Xing Fu Town (興福鎭), which was sufficiently merged with another town and became Jiaocheng Town. XXS was born in the wedlock in 1987 and they never undertake any divorce procedure.
25. The Certificate forms the cornerstone of Madam Wong’s case of the Disputed Marriage.
26. On the other hand, Mr Tsui obtained a declaration made by the people’s government of Jiaocheng Town of Jiaoling County (中國蕉嶺縣蕉城鎭人民政府) by its legal representative Mr Xu who is the head of the town dated 15 December 2015 (“the Declaration”). The Declaration was notarized by the Public Office on the same day.
27. The Declaration makes it clear that the contents of the Certificate were fabricated and there is no record of marriage registration relating to the Disputed Marriage. Therefore, the alleged registered marriage of Mr Tsui and Madam Lai is a fabrication.
28. On 15 December 2015, the Public Office further issued a reply stating that after investigation it was found that Madam Wong procured the notarial Certificate by untruthful information and hence the Certificate was a genuine document containing a false account. The Public Office thus decided to set aside the Certificate.
29. Lastly, the Public Office published a document entitled “Decision Concerning the Setting Aside of the Certificate” dated 15 December 2015 (“the Public Office Decision”). There, the Public Office gave the same reasons as stated in its reply. At the end of the document, the Public Office points out that in case of disagreement, Madam Wong cmight complain to the Guangdong Notary Association or institute proceedings in the People’s Court.
30. Mr Wu submits that the entire basis of Madam Wong’s claim evaporates in light of the Public Office Decision.
31. However, Madam Wong did institute proceedings in the People’s Court to challenge the Public Office Decision and to sue Mr Tsui for damages on 15 February 2016 (“the PRC Action”) and the People’s Court has agreed to deal with the PRC Action after her payment of the requisite fee.
32. Madam Wong also relies on other matters to support her allegation that the Subject Marriage was bigamous in that Mr Tsui had already been married. First, Mr Tsui and Madam Lai were the only shareholders of a locally incorporated company known as K.I.N. International Trading Company Limited (“KIN”) from February 1985 to 2008. They were appointed at the same time as directors of KIN.
33. In the company records filed at the Companies Registry, Madam Lai and Mr Tsui shared the same residential address in Hong Kong even after 1999 after the Subject Marriage. On the other hand, Madam Lai used the same address of Mr Tsui in her travel permit.
34. In addition, in a written agreement in respect of an irrevocable sale and purchase of residential premises in the PRC known as “黃金花園” dated 4 August 1994, one Mr Xu Yu purportedly signed on behalf of Mr Tsui and Madam Lai as purchasers. It is remarkable that Madam Lai was described as the wife of Mr Tsui in the said agreement, which was subsequently notarised. I am aware that there is no evidence of completion of the sale and purchase of any properties pursuant to the said agreement and hence there is no property registered in their joint names though.
35. Mr Pang SC, together with Mr Yim, appearing for Madam Wong invites my particular attention to the fact that Mr Tsui has even failed to file any affirmation in reply to all these despite leave was granted to him to do so. He should have taken to agree to the truth in all these allegations and is unable to give any explanation.
36. I now turn to the challenges mounted by Mr Tsui to the claim of Madam Wong. Mr Wu has literally left no stone unturned in his attacks on the pleaded case of Madam Wong with the factual evidence adduced on behalf of Mr Tsui and legal arguments. All of the many grounds relied on in his striking out application essentially boils down to the purported falsity of Madam Wong’s allegation that the Subject Marriage was bigamous.
37. First, he points out the deficiencies of the Certificate and the fact that the Declaration and the Public Office Decision make it clear that the Certificate cannot be reliable.
38. The Certificate is indeed the main evidence relied on by Madam Wong to prove the Disputed Marriage at this stage and I am aware that in any event it per se cannot be conclusive proof. Whether or not as it lacks important particulars is not determinative of the issue as to the alleged existence of the Disputed Marriage. Madam Wong should be in my view entitled to conduct further investigation in light of the contents of the Certificate and amass evidence to substantiate the matters stated therein relating to the Disputed Marriage, be it a registered one or de facto in nature, both for the purpose of these proceedings and the PRC Action.
39. Mr Wu highlights that to prove the Disputed Marriage, Madam Wong has to establish celebration and/or registration of the same in accordance with PRC law. I can accept this evidential onus on the part of Madam Wong but at this stage I cannot say that it is plain and obvious that Madam Wong can never discharge her burden of proof.
40. Mr Wu is very skeptical about the timing of the present action and the issue of the Certificate. All really matters is in my view is the truthfulness of the contents of the Certificate for present purposes. If its contents are accurate, the fact that Madam Wong has waited until the enforcement actions taken by Mr Tsui to commence this action does not render her action vexatious, frivolous, scandalous and/or an abuse of the process of the court. On the other hand, if it is plain and obvious that it is impossible for Madam Wong to prove the Disputed Marriage, it has to be struck out regardless of the timing of its commencement.
41. Mr Wu further submits that the Disputed Marriage is a virtual impossibility as a matter of law and fact. In 1979, both Madam Lai and Mr Tsui were separately and independently married and they could not get married in that year. His submission is also based on the evidence of Madam Lai.
42. Further, the Disputed Marriage, if ever commenced in 1979, should be governed by the 1950 version of the People’s Republic of China Marriage Code (“the 1950 Code”). Mr Wu submits that two provisions in the 1950 Code render it impossible for Mr Tsui and Madam Lai to get married in 1979.
43. First, Article 2 of the 1950 Code prohibits bigamy. Given Madam Lai’s marriage with Mr Chan and Mr Tsui’s marriage with Madam Chow both subsisting in 1979, the Disputed Marriage was prohibited under the 1950 Code.
44. Second, Article 5 of the 1950 Code prohibits marriage between members of the same kindred.[1] Given the relationship between Madam Lai and Mr Tsui, Mr Wu submits that the Disputed Marriage is prohibited under the applicable matrimonial law in the PRC.
45. Mr Tsui has adduced no expert evidence on the 1950 Code whereas Madam Wong has by way of two legal opinions provided by a PRC lawyer known as Ms Xu.
46. Ms Xu accepts that bigamy is not allowed under the 1950 Code and if either Mr Tsui or Madam Wong was married in 1979, the Disputed Marriage should be void.
47. Nonetheless, Ms Xu points out that any nullification of a marriage in the PRC has to be adjudicated and acknowledged by the court. The court should decide on the question of nullity of a marriage upon an application by either party to the marriage or any interested parties. As the matter now stands, even if the Disputed Marriage is bigamous in nature, in the absence of the court’s adjudication and acknowledgement, it cannot be regarded as a nullity.
48. There is no contrary evidence. At this stage and for present purposes, I must accept that any existing marriage of Madam Lai and/or Mr Tsui in 1979 does not necessarily mean that the Disputed Marriage is a nullity in light of the expert evidence of Ms Xu.
49. Ms Xu’s uncontroverted answer to Article 5 is that given the relationship between Mr Tsui and Madam Lai, whether or not they could get married should be determined in accordance with customs. She must be right. There is no strict prohibition under Article 5 regarding marriages between cousins.
50. Mr Wu, as a fallback argument, submits that even the Subject Marriage turned out to be bigamous, it does not follow that Mr Tsui is deprived of ancillary relief. In this connection, he cites to me the Court of Appeal decision in L v C [2007] 3 HKLRD 819.
51. Mr Wu is plainly right. In L v C, at §96, Stock JA (as he then was) referred to section 6 of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“the MPPO”) and pointed out that the same right to ancillary relief that is available on the grant of a decree of divorce is also available on the grant of a decree of nullity.
52. I pause to take note of the difference between a decree of divorce and a decree of nullity. If the Subject Marriage is proved to be bigamous, the Decree Absolute is liable to be set aside and a decree of nullity would be appropriate in all the circumstances.
53. Indeed, as pointed out by Mr Pang, section 20(c) of the Matrimonial Causes Ordinance, Cap. 179 provides that a marriage which takes place after 30 June 1972 shall be void when at the time of marriage either party was already lawfully married. Thus, if the Disputed Marriage can be established by evidence, the Subject Marriage shall be void.
54. For the availability of ancillary relief on the grant of a decree of nullity, in the same paragraph, Stock JA had this to say,
“However, by virtue of s.7 (of the MPPO), the Court, in deciding whether to exercise its power under s.6 and, if so, in what manner, is enjoined to have regard to the conduct of the parties to all the circumstances. That one of the parties has entered upon the ceremony of marriage with the other whilst still married is no doubt a type of conduct and a circumstance to which the court will have regard.”
55. It can be seen that in the event that the Subject Marriage is proved to be null and void, whilst it is true that Mr Tsui may still be entitled to some ancillary relief, the court should have regard to the conduct of the parties in its decision as to what ancillary relief should be granted to Mr Tsui. It follows that there is genuine likelihood that the Ancillary Relief Orders would be disturbed: see also Rayden & Jackson on Divorce and Family Matters (18th Edn, Vol.1), §16.11. It cannot be said that it is in any event futile for Madam Wong to prove that the Subject Marriage was bigamous in that Mr Tsui would be entitled to ancillary relief anyway.
Conclusion
56. I am impressed with Mr Wu’s able submission and of the view that Madam Wong’s claim is fraught with difficulties. However, this is not enough for the purpose of striking out. Given the allegations set out in the Certificate, the PRC Action and all other matters set out in paragraphs 32 to 34 hereof, it is far from plain and obvious to me that Madam Wong’s claim is hopeless and doomed to failure. Her allegation of the Disputed Marriage, in my view, remains very much a live issue despite the scathing attack made by Mr Wu. There are genuine factual issues and legal questions to be resolved.
57. I refuse to accept that the present action lacks bona fide and is vexatious, frivolous and/or scandalous or otherwise is an abuse of the court process. I am not convinced that Mr Tsui can make out any grounds under O.18 r.19 to strike out the Statement of Claim. There is no reason why Madam Wong should be deprived of her day in court to prove her allegation of the Disputed Marriage in the conventional manner.
58. In the premises, I refuse to exercise my discretion to strike out the claim of Madam Wong. I dismiss the Summons.
59. Costs should follow the event. This application involves slightly complicated legal issues relating to matrimonial law and this court has received considerable assistance from Madam Wong’s counsel. I believe a grant of certificate for two counsel is appropriate.
60. Therefore, I make an order nisi that Mr Tsui do pay Madam Wong her costs of the Summons with certificate for two counsel, to be taxed if not agreed.
61. Mr Pang indicates at the hearing that the Statement of Claim requires amendments. It clearly does. I hereby direct that Madam Wong do make her application for amendments if so advised within 28 days from today.
62. Lastly, I thank counsel on both sides for their assistance in this matter.
| | (Kent Yee)
Deputy High Court Judge |
Mr Robert Pang SC and Mr Eugene Yim, instructed by Li & Partners for the Plaintiff
Mr Paul Wu, instructed by H.M. Tsang & Co for the Defendant
[1] The original provision provides, “為直系血親， 或為同胞的兄弟姊妹和同父異母或同母異父的兄弟姊妹者; 其他五代內的旁系血親間禁止結婚的問題, 從習慣。