Thy v. Chfr

HCMP 1755/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1755 OF 2015

(ON AN INTENDED APPEAL FROM FCMC NO. 11061 OF 2014)

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BETWEEN

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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):

1.In this matter, the Respondent in FCMC 11061 of 2014 applied for leave to appeal against the order of Judge Melloy [“the Judge”] of 9 April 2015 dismissing his application for leave to file an Answer and Cross Petition out of time. The Judge refused to grant leave to appeal on 8 July 2015.

2.The net effect of the order was that the Respondent was effectively barred from contesting the petition for divorce by the Petitioner based on unreasonable behaviour.  By the draft Answer and Cross Petition, the Respondent intended to deny that he was guilty of unreasonable behaviour and allege instead that the marriage had broke down irretrievably due to the unreasonable behaviour of the Petitioner.

3.Judge Melloy set out the history of the divorce proceedings in her Ruling on 8 July 2015.  It is clear that the Respondent was guilty of substantial delay in putting forward his case.  But that was not the reason for the Judge’s making of her order.

4.Having considered the transcript of the hearings on 10 March and 9 April 2015 and the written ruling of 8 July 2015 (in refusing leave), it is quite plain that the Judge barred the Respondent from defending the divorce suit due to his persistent non-compliance with the court’s orders in respect of the filing of affidavit of means, more specifically Form E and affirmation in response to the application for maintenance pending suit (see paragraphs 5 and 6 of the order of 26 January 2015).  In short, the Judge exercised her power by reference to the principle that the court can refuse to hear a contemnor when he is in continuing contempt.  This is known as the Hadkinson principle, see Hadkinson v Hadkinson [1952] P 285.  It has recently been applied by this court in CWG v MH [2014] 4 HKLRD 141 where the relevant principles were set out at paragraph 12.

5.There is no doubt whatsoever that the Respondent was guilty of contempt (and he had in fact been found guilty by the Judge on 8 June 2015 and sentenced to prison for 7 days) in terms of deliberate non-compliance with court orders.  There cannot be any doubt that his non-compliance with such orders impeded the course of justice: it prejudices the efficient and fair conduct of the proceedings in relation to ancillary relief.  We are of the view that the Judge was undoubtedly correct in exercising her discretion in the way she did.

6.At the same time, we bear in mind that the Hadkinson sanction should be a last resort and the exercise of the power is to be guided by asking whether in the circumstances, the interest of justice is best served by hearing or refusing to hear a party in contempt, bearing in mind that the paramount importance of orders of the court being observed. 

7.In this respect, we can take the law from Motorola Credit Corporation v Uzan (No 2) [2004] 1 WLR 113:

“ 47 The law and the nature of the court's discretion in this respect have not been in issue before us. The starting point is that to refuse to hear a party, even a contemnor, is ‘a strong thing ... only to be justified by grave considerations of public policy. It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance’: see per Denning LJ in Hadkinson v Hadkinson [1952] P 285, 298 as approved by Lord Bridge of Harwich in X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1, 46-47, Lord Bridge adding by way of clarification that:

‘ Certainly in a case where a contemnor not only fails wilfully and contumaciously to comply with an order of the court but makes it clear that he will continue to defy the court's authority if the order should be affirmed on appeal the court must, in my opinion, have a discretion to decline to entertain his appeal against the order.’

48 In Arab Monetary Fund v Hashim (unreported) 21 March 1997, having referred to the position as stated in the X Ltd case [1991] 1 AC 1 by Lord Bridge and, in particular, by Lord Oliver of Aylmerton, at p 50, Lord Bingham of Cornhill CJ observed:

‘  From those speeches it is, I think, clear that it is wrong to take as a starting point the proposition that the court will not hear a party in contempt and then to ask if the instant case falls within an exception to that general rule.  It is preferable to ask whether, in the circumstances of an individual case, the interests of justice are best served by hearing a party in contempt or by refusing to do so, always bearing in mind the paramount importance which the court must attach to the prompt and unquestioning observance of court orders.’ ”

8.In Mubarak v Mubarik (No 2) [2007] 1 WLR 271, notwithstanding the contempt of the husband, the court still decided to hear him on conditions that were designed to secure the compliance with the relevant orders.

9.If the Respondent purges his contempt, we are of the view that the Hadkinson sanction should cease to apply.  However, as at the time when the Judge made her order, the Respondent had not yet purged his contempt.

10.The position at the time of the hearing before us on 15 September 2015 was as follows.  The Respondent has yet to file his Form E.  In respect of the application for maintenance pending suit, the Judge reached a decision without the evidence from the Respondent on 12 May 2015 ordering maintenance pending suit in the sum of $50,000 for the Petitioner and $23,250 each for the 2 children of the family in addition to the Respondent’s agreement on other items (credit cards, school fees and school bus fees).  The Respondent sought leave to appeal against the order of 12 May and in the application for leave he filed an affirmation on 4 September 2015 to support his intended appeal.  In that affirmation he provided minimal information about his means, claiming that he had no occupation since May 2015 and for the past 5 years his average monthly income was less than $50,000.  The Judge refused leave on 8 September 2015.

11.Thus, up to the hearing on 15 September 2015 the Respondent has not purged his contempt.  In this connection, the Respondent is plainly wrong in suggesting that he had purged his contempt by serving 7 days in prison.  Until he filed and served his Form E, he remained in contempt.

12.At the hearing of 15 September 2015, after we explained to the Respondent what the purging of contempt entails, he promised this court that he would file his Form E by 22 September 2015.  In light of that, this court adjourned the application pending his filing of Form E.  He filed his Form E on 18 September 2015.  He also filed a second affirmation on that date in these proceedings to explain why he had not filed an affirmation to explain the delay in lodging his Answer and Cross Petition as directed by the Judge.

13.Though he had put the Form E in a sealed envelope, we see no reason why the Form E should not be inspected by the Petitioner or her solicitor.  Actually the Respondent should have served a copy of the Form E on the Petitioner.  In order to avoid arguments, we give leave to the Petitioner and her solicitor to inspect the Form E in the court file in the present proceedings.

14.Having studied these documents, we are of the view that the Respondent has now purged his contempt.  Notwithstanding the submission of Mr Parker that it was in any event within the Judge’s discretion to refuse the Respondent’s application, we think it is reasonably arguable that with the purge of the contempt the court should not preclude the Respondent from filing his Answer and Cross Petition.   

15.For these reasons, we shall grant leave to the Respondent to appeal.  We shall reserve the question of costs of this application to the substantive appeal.  The Respondent is reminded that he should file and serve his notice of appeal within 7 days from the handing down of this judgment.

16.We also consider that it is in everybody’s interest that the appeal be expedited and to be listed before Lam VP, Barma JA and another judge.  The appeal is not complicated and we shall list it for hearing on 20 October 2015 at 9:30 am with an estimate length of 30 minutes.

17.In light of the direction for expedited hearing, the Respondent should also lodge and serve his skeleton submissions and appeal bundle (3 sets) at the same time when he files and serves his Notice of Appeal. The Petitioner shall lodge and serve her skeleton submissions in the appeal within 7 days thereafter.

Mr Tim Parker, instructed by Haldanes, for the petitioner

The respondent appeared in person