Ykl v. Ycf
Read the full judgment text of FCMC 14949/2013 on BabelCite. This Family Court judgment was delivered on 20 June 2016 before Deputy District Judge I. Wong.
Contempt of Court – Committal – Judgment Summons – Matrimonial Causes Rules – Interim Maintenance – Ability to Pay – Wilful Failure – District Court – Family Law – The respondent husband was found in contempt of court for failing to attend a First Appointment hearing and failing to file and serve his Form E as ordered. The court held that the respondent's evidence was unbelievable and his failure to comply was not accidental. The respondent was also found to have wilfully failed to pay interim maintenance of $2,500 per month despite having the ability to do so. The court ordered the respondent to be committed to prison for 6 weeks, with release upon full payment of the arrears and interest. The respondent was also ordered to repay the arrears from 1 January 2015 to 1 June 2016 by monthly instalments of $1,000. The interim maintenance order was suspended pending further order.
Legal issues: Contempt of Court · Purging Contempt · Judgment Summons · Punishment
Outcome: Contempt found; Committal order made; Judgment Summons granted.
Cites 8 cases
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FCMC 14949 / 2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 14949 OF 2013 ----------------------------
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____________________ JUDGMENT ____________________ The Applications 1.The respondent husband is facing two committal charges. The first is a committal for contempt of court pursuant to Order 52, RHC and the second is a judgment summons. 2.Before I come to the contents of the applications, it is necessary to set out the background against which the applications were made. For convenience, I shall refer the petitioner wife as “P” and the respondent husband as “R” in this Judgment. 3.P and R are now aged 34 and 35 respectively. They married in November 2004 and this union bore two children. The elder one is a boy and is now 11 years old. The second child is a girl, now aged 10. 4.On 21 October 2013 P petitioned for divorce on the ground of 2 years separation. At the same time, the 1st First Appointment hearing was fixed to be heard on 13 January 2014. Notwithstanding that the proceedings were duly served on R on 2 December 2013 he failed to appear in the hearing of 13 January 2014. 5.R did appear in the 2nd First Appointment hearing on 23 May 2014 (“the Hearing”). With the consent of the parties, I gave an order that the joint custody of the son be given to the parties with care and control to R and reasonable access to P. As for the daughter, her sole custody, care and control were granted to P with reasonable access to R. 6.This disposed of the children matters but the ancillary relief issue remained outstanding. Essentially what was and is in issue is whether R should pay any maintenance for the benefit of the daughter and if so, the amount. At that point, R had not filed his Form E yet but with the indication from R that he offered to pay $2,500 I gave an order that he had to pay P $2,500 per month as interim maintenance for the daughter, the 1st payment to be made on 1 June 2014 and subsequent payments on the 1st day of each and every succeeding month until further order. 7.At the same time, I gave an order that R had to file and serve his Form E on or before 13 June 2014 and adjourned the First Appointment hearing to 24 September 2014. The order was endorsed with a penal notice. For the reason that R was present when the order was made, personal service of the order was dispensed with. 8.R failed to appear in the First Appointment hearing of 24 September 2014 and also failed to file and serve his Form E as ordered. It also turned out that R never paid any interim maintenance that he was ordered to pay. 9.All these prompted the present applications. P took the view that all along R had been adopting a delaying and ignoring tactics in order to frustrate her claim for maintenance for the daughter and to force her to come to R’s terms. P therefore applied to have R committed to prison for his contempt of the court in failing to:
10.This is the first committal proceedings. The second is the judgment summons by which she seeks to enforce the interim maintenance order. At the time when the application was taken out, 7 months (up to December 2014) totalling $17,500 were in arrears. As a matter of fact, R never paid a single cent since the order and it was not until more than a year later that he filed his Form E on 22 May 2015 and had it served on 17 July 2015. 11.Decree nisi was granted on 28 March 2014 but because of the discovery exercise taken out by P following R’s Form E, the parties have not been able to come to FDR yet. Parties’ Current Situation 12.R has been working as a merchandiser in fashion industry. He established his own business in fashion and design in the name of SB Limited in about mid of 2013. At the time of the Hearing that eventually triggered the present committal proceedings, he was working full-time for this business. He is also a shareholder and director of another company in the name of GT Limited. This company was established in March 2014. Out of 1 million issued share capital of $1.00 each, R owns 350,000 shares. 13.R is now working as a Research and Development merchandiser with one VKF Limited, earning a salary of $16,400. That has been the case since October 2015. Before that, he worked as a merchandiser with one JC Limited from February 2015 to May 2015 with a monthly salary of $16,000. 14.The son and R’s mother (the grandmother) used to live with R in the former matrimonial home but they moved out at the end of June 2015 and are now living in Tsui Ping Estate. Hence, notwithstanding that he was granted the care and control of the son, R has not been living with the son since then. Instead, he has been cohabitating with his girl friend in the former matrimonial home since October 2015. Living together with them is also a daughter born by his girl friend (“the baby daughter”) in October 2014. R said he has no plan to remarry. The former matrimonial home was registered in the name of R’s elder sister; its ownership is not in issue here. 15.As for P, she is living with the daughter and her parents and brother in a flat owned by the parents. According to her Form E, she is working as a clerk and is earning about $11,400. 16.In trial, P gave evidence confirming that R never paid and R also chose to give evidence in court. The Legal Principles Civil Contempt 17.It is trite that contempt proceedings are regarded as quasi criminal proceedings because the liberty of the contemnor is at stake. The applicant must prove to the criminal standard, ie beyond reasonable doubt, both the act claimed to constitute the contempt and the alleged contemnor’s requisite state of mind, and there is no difference between civil and criminal contempts in this regard: Hong Kong Civil Procedure (2016), at § 52/1/17 18.The present proceeding is a civil contempt. As has been commented by Hong Kong Civil Procedure (2016) at § 52/1/16.
Judgment Summons 19.The general rules relating to judgment summonses are provided in rules 87 and 88 of the Matrimonial Causes Rules, Cap 179A. The court needs to ascertain whether there are any debts owing to the judgment debtor, whether he had the ability to make the payments ordered and whether he has wilfully failed to do so. The Judgment creditor needs to prove this “beyond reasonable doubt”. R’s Case 20.In his affirmation dated 12 February 2016, R explained that he forgot the hearing date. Yet he did give a phone call to P’s solicitor for enquiry but was unsuccessful so he missed the hearing. 21.As for the late filing of his Form E, since he had to apply to the bank for statements from 2013 to May 2015, there was a delay. 22.Finally, he did not pay the interim maintenance because he had no job or income at that time. The Hearing 23.R was cross-examined at trial on what happened during the Hearing. I think it is useful to set out the relevant parts of the records of proceedings.
24.Then the court went on to explain what mediation was and urged R to consider mediation.
Failing to attend court hearing on 24 September 2014 25.R was present in the Hearing when the hearing date of 24 September 2014 was fixed. In his affirmation, R explained that he had forgotten the date. That was the only reason. 26.However, in evidence, he testified that one Mr Chan from P’s solicitors called him in around June 2014 to inform him that since he failed to file the Form E, P’s solicitors had applied to court for the postponement of the hearing, the new hearing date was not fixed yet and there would be a further letter. 27.He even said he phoned up P’s solicitors’ office in the morning of 24 September 2014 but then he retreated to say he was not sure whether it was 25 or 26 September but added that he was quite sure it was a Monday because he would be in the Mainland from Monday to Friday. Anyway, he said the one who answered his call did not speak Cantonese well so the enquiry was not fruitful. 28.R later realised that he had missed the hearing when he tidied up his room in early October 2014. He then contacted Mr Chan and on this occasion he managed to talk to Mr Chan who informed him what happened on 24 September 2014. 29.P’s case is that there was never any telephone conversation whether in June or September as alleged. There was only one telephone conversation which took place in or around beginning of October 2014. R telephoned her solicitors’ office to know what transpired on 24 September 2014. 30.I have listened R’s testimony with care. In my view, his evidence is utterly unbelievable. 31.First, R failed to mention the June telephone conversation in his affirmation. If there were such a telephone discussion it is hard to believe that Mr Chan did not enquire with him on why he did not file the Form E and when it would be available, bearing in mind that R had represented to court in the Hearing that he could submit his Form E even on that very day. 32.Secondly, there was not any application on the part of P for the postponement of the hearing at all. In this regard, it is to be noted that quite contrary to what R alleged, there was a letter dated 25 June 2014 from P’s solicitors informing R that the hearing was adjourned to 24 September 2014. In the same letter, P’s solicitors demanded R to pay the interim maintenance and put on record that R had failed to file and serve the Form E. The solicitors also warned R that he had committed contempt of court. R was asked to file and serve his Form E by 30 June 2014, failing which contempt proceedings may be initiated against him without further notice. With this contemporaneous documentary evidence, which I accept, it is simply impossible for the alleged June telephone conversation to have taken place. 33.Thirdly, R’s case is a confusing one. On the one hand he claimed he had forgotten the date but on the other, he said he was told the hearing would have to be postponed. In my view, the two explanations do not sit well with each other. Anyway, R never mentioned about the postponement in his affirmation. In my view, it shows nothing but he was improvising his evidence along the way. 34.Fourthly, as can be seen from the transcript, not only that R was clearly told of the hearing date, he also sought confirmation from the court whether he had to attend court again on 24 September 2014. R was also given the court’s written standard directions so that he could jot down the date on the relevant part of the form. 35.For the above reasons, the only conclusion I can come to is that R was telling lies. I find that there was no such telephone conversation in June 2014 nor was there any September telephone enquiry as alleged by R. I am sure it was a deliberate decision on his part not to attend the hearing. Failing to file Form E on or before 12 June 2014 36.There is no doubt that R failed file and serve his Form E on or before 13 June 2014. 37.P’s solicitors wrote on 25 June 2014, 22August 2014 and 3 December 2014 demanding R to file his Form E but he did not give any reply. It was only subsequently during the committal hearing of 1 April 2015 that R undertook to file his Form E on or before 8 April 2015. Yet he only filed it on 29 May 2015 and had it served on P on 17 July 2015. His explanation is that he had to wait for the statements from the banks. Be that as it may, it is crystal clear that he was in breach of the order of 23 May 2014. 38.I need to consider whether R’s failure to comply was accompanied by a state of mind necessary to establish punishable contempt. The law is that it is not necessary to prove the alleged contemnor’s conduct was contumacious, ie that he directly intended to disobey the order: it is sufficient to prove (a) that he knew the facts which are said to make his act or omission a contempt and (b) that such act or omission was not accidental: see Hong Kong Civil Procedure (2016), at § 52/1/17; and Kao, Lee & Yip v. Koo Hoi Yan(2009) 12 HKCFAR 830 at 854J–859J, per Sir Gerard Brennan N.P.J.; and Sir Gerard Brennan NPJ. 39.In Kao Lee & Yip v Koo Hoi Yan (2009) 12 HKCFAR 830, Sir Gerard Brennan NPJ said:
40.R admitted that he was late. As can be seen in transcript of the hearing reproduced in Para 23 above, he informed the court that he was in a position to submit the Form E on that day with some missing information regarding his personal account to be obtained. For this reason, I gave R a further 21 days and urged him to expedite the process. He was duly informed of the date for the filing and service of his Form E. At the same time, I also drew his attention to ‘Box 4’ of the court’s standard directions at which R could write down the date. R was assisted by a court interpreter. At no time during the Hearing did R inform the court that he was not able to understand or follow the proceedings. As a matter of fact, the transcript shows the contrary. It is never R’s case that he was not aware of the deadline imposed by the court on 23 May 2014. Yet, he was silent and so it remained a mystery as to why he had to wait for more than a year for the bank statements. On the evidence before me, I am sure that the breach was not casually, or accidentally or unintentionally. I find beyond reasonable doubt that R has committed a contempt of court. Has R purged his contempt? 41.The next question is whether R has purged his contempt. When a party has been in contempt but has remedied the breach before the hearing, the court will not or should not make a committal or a suspended committal order: see Butterworths Family Law Service, Blinder 4(1), at § 3297.1; Bluffield v Curtis [1988] 1 FLR 170, [1988] Fam Law 20 and also THY v CHFR, (unrep.; HCMP 1755/2015, 23 September 2015) at §§ 9 – 14. 42.Ms Manek argued that he has not. She submitted that R’s Form E was incomplete, lacking in details and R has been trying to abuse the process by avoiding complying with his obligation to give a full and frank disclosure. She drew my attention to the following failures or deficiencies. 43.First, at the time of his Form E, R only worked for his then employer for one month with a monthly salary of $16,000 so he was required to state his previous occupation and give details of his former employer with monthly income but he failed to do so. 44.Secondly, R was required to give details of shareholding/beneficial interest in all his companies. However, R only disclosed his shareholding in his SB Limited but failed to declare his 350,000 shares in GT Limited. R also failed to disclose his directorship in both companies. 45.Thirdly, R did not disclose his personal bank account with the China Construction Bank in the Mainland and the value of his retirement / MPF funds. 46.Finally, R did not disclose his income from his own business SB Limited. There is not a single financial statement, whether audited or not, on his companies. There is also no disclosure of his or his companies’ tax returns. 47.Subsequent to R’s Form E, P raised a 25-page Questionnaire on 16 February 2016. It is not necessary for me to go into details of the Questionnaire; suffice for me to say is that most of the questions are relevant and are arising out of the inadequacies of his disclosure. 48.R managed to give his replies to most of these questions on 13 April 2016. That was after the 1st day of the trial. 49.In trial, R emphasized that he has given full and frank disclosure of his financial situation. He explained that he did not disclose his shareholding and directorship in GT Limited because he was merely a nominal shareholder with no beneficial interest. GT Limited was in partnership with SB Limited in that the latter undertook design and production work for GT Limited for profit. However, due to quarrels between the two companies the partnership was futile. He did not pay any money for the shares and he was in the process of transferring the shares back to another shareholder in the name of Mr Wong. Further, at that time he had already ceased participating in the company. 50.This explanation will be dealt with in the judgment summons part below. Suffice for me to say is that leaving this issue aside, I have no doubt that R has not purged his contempt for the following reasons. 51.First, R admitted that while being employed full-time as a merchandiser, he has continued to operate his SB Limited for some extra income. This has been the situation up to the present moment. Even his income from this source is unstable as alleged, he should have disclosed it but he failed to do so. 52.Secondly, the only documents that he disclosed relevant to his business are SB Limited’s bank statements but without more these statements do not give any picture of profitability or otherwise of the business. R claimed he has lost all his client’s purchase orders. He also said he never did any audited accounts and actually he did not know the difference between audited and unaudited accounts. In my judgment, these are mere say so and are utterly unbelievable. Equally incredulous is his evidence that he had no idea about SB Limited’s tax returns. 53.Thus, quite apart from R’s failure to disclose various other information that may be regarded as peripheral or less material he failed to disclose material information including his own and SB Limited’s tax returns and its financial statements. Judgment Summons – failing to pay interim maintenance 54.I need to consider (1) whether any and, if so, what debts are owing to R; and (2) whether R has any and, if so, what other property or means of satisfying the order: rule 87(2), Matrimonial Causes Rules, Cap 179A. 55.The first question is not in dispute; he does not have any debtors. I now deal with the second question. 56.To start with, during the Hearing R confirmed with the court on unequivocal term that on the question of $2,500 maintenance, it was not a matter of affordability. He did not agree to pay entirely because he wanted to settle with P once and for all. In evidence, R admitted that at the time of the Hearing, he was fully aware that his girl friend was pregnant and he was expecting the baby daughter in 4 months’ time. When he said he could afford to pay $2,500, he must have already taken the changes in circumstances occasioned by this new relationship. 57.R repeatedly stressed that the offer that he made on 23 May 2014 was based on his estimate that he would have a monthly income of $15,000 but unfortunately things turned out against him. That made him not being able to pay right at the start. In evidence, R’s excuse was there was a change in the circumstances in that there were quarrels between him and GT Limited. It is different from what he said in his affirmation that he did not have a job or income. This allegation lacks substance and is unsupported by any particulars or evidence. I find it utterly unbelievable. The first payment was due on 1 June 2014, 8 days after the order. If there was anything that had drastically undermined his affordability during this short period of time, surely he would have informed the court. The only irresistible conclusion is it never crossed his mind that he had to comply with the order. 58.When R filed his Form E on 29 May 2015, he was working with JC Limited with a monthly salary of $16,000. On the top of this, on his own admission, there should be some extra income from SB Limited, however meagre it is. 59.His reported living expenses were said to be $14,700, of which $10,200 was attributable to his own expenses and the remaining $4,000 was his son’s. Thus, leaving the extra income from SB Limited aside, with an income of $16,000 he should have roughly extra cash of $1,300 per month. 60.R reported that he had to spend $500 on entertainment, $1,500 on holiday and $2,500 on his parents. While maintaining one’s parents is a virtue, paying maintenance is a not only a virtue but a legal obligation too. Further, I have no doubt that there is room for R to economise. He should be able to economise somewhat on his entertainment and holiday in order to comply with the order. He testified that at the relevant time and even when the baby daughter was born his relationship with his girl friend was not stable and they only planned co-habitation in August 2015, which plan did not materialize until October 2015. He further testified that at that time the girl friend was living on her savings. This tallies with what he wrote in Part 5.5 of his Form E where he was required to, ‘Give details of any other circumstances which you consider could significantly affect the extent of the financial provision to be made by or for you or for any child of the family, including but not limited to earning capacity, disability, inheritance prospects, redundancy, cohabitation plans, and any contingent liabilities”. His answer was “not applicable”. 61.On that basis, I am sure that R had the ability to pay up to September 2015 before he started co-habitation with his girl friend. I have no doubt that he wilfully chose not to make the payments due and owing to P under the terms of the court order. It was a deliberate defiance of the court order. 62.R claimed his girl friend is not working now and he is responsible for his girl friend’s living expenses. He also claimed he carried out renovation to the former matrimonial home in the previous year, costing him about $140,000. The money was pre-paid (預支) by his girl friend’s family. Starting from November 2015, he has had to repay $5,000 per month. That would last until March 2018. 63.There is not a shred of evidence regarding this loan or any repayment of it. Soft-loan as it is, and in particular in light of R’s evidence in its totality, would have to be treated with a high degree of caution. In any event, a soft-loan is different from one strictly on commercial term where there is little flexibility on its repayment. I have also not lost sight of R’s allegation that he owes GT Limited $364,284. This allegation is contradictory to his own assertion that he is merely a nominal shareholder. Thus, apart from the alleged soft loan, R is otherwise debt free. 64.The Court of Appeal has said that in an application for interim maintenance the principles for the court to consider at this stage are, first, the reasonable needs of the child who ask for maintenance and the other spouse’ ability to pay; and second, this being an interim provision, the court will not make a detailed investigation of the financial position of the parties but will adopt a broad brush approach: per Cheung JA in LAML v TCCY, (unrep.; CACV 75/2004, 13 September 2004), § 13; and LJ v LWHH (Maintenance Pending Suit) [2003] 3 HKC 455, at 461C – 462D. 65.At this stage, I should also adopt a broad brush approach. The $2,500 interim maintenance was ordered on the basis of R’s own admission regarding his ability and his then circumstance. Whether what R said about his new financial obligations arising from his new family are true or not would have to be investigated in the trial of the ancillary relief but leaving that aside, I accept that on the evidence before me there has been a change in his circumstance as from October 2015 and such change might have affected his ability to pay. I have to make it clear that I am not saying that R has not had the ability to pay since October 2015. That has to be subject to strict scrutiny which, in my view, should take place as soon as possible. 66.Rule 87(5)(a)(ii) of the Matrimonial Causes Rules, Cap 179A states as follows:
67.R has not applied for variation of the interim maintenance order. It was held by the Court of Appeal in Goetz v Goetz [1999] 1 HKC 819 that where a judgment summons is the only application before the court, the court has no jurisdiction to vary the underlying order requiring payment and is restricted to making a new order for the payment of the amount due under the original order pursuant to said rule 87(5)(a). It was also held that the Matrimonial Causes Rules do not provide for remitting the amounts due under the previous order, 68.The amount due as set out in the Judgment Summons is $17,500. This sum has been due since 1 December 2014. At the rate of 8% per annum, the daily interest would be $3.80 ($17,500 X 8% ÷ 365 days X 567 days). The interest as of today, commencing from 1 December 2014, have accumulated up to $2,174.80; together with the principal the total is $19,674.80. R’s Alleged Attention Deficit Hyperactivity Disorder (“ADHD”) 69.After the conclusion of the trial R submitted on 17 June 2016, without leave of the court, a “Reference Letter” dated 4 June 2016 from a psychiatrist. The letter is a short one; it states that R was seen at the psychiatrist’s clinic on the date of the letter. R ‘presented with a long history of attention deficit and hyperactive symptom and diagnosed to have adult ADHD. He is put on medication treatment today’. 70.In today’s hearing, R tries to make use of his illness to exonerate his conducts. He informs the court of the major symptoms of adult ADHD including forgetfulness. That explains his failure to comply with the order. 71.If R wishes to adduce expert evidence, it has to be properly produced. That said, I have carefully considered this piece of new evidence. I am afraid this does not help R. The psychiatrist’s letter is a brief one and does not give any picture of the seriousness of the illness nor does it state the kind of symptoms that R has been suffering from. It would appear that the very first time R went to see this psychiatrist was the date of the letter. There is virtually no mention of R’s medical or treatment history. Most importantly, R never mentioned in trial that he was diagnosed with this illness, not to mention that his failure was attributable to his illness. Certainly, this is not his case that he forgot to pay the maintenance. I am sure this was an afterthought exercise. Findings 72.I therefore find that the judgment debtor had the ability but failed to make payments under the interim maintenance order dated 23 May 2014 and there is due and owing under the Judgment Summons the sum of $17,500, plus interest $2,174.80 up to 20 June 2016. The interest is accruing at the daily rate of $3.80. Punishment 73.Committal orders are remedies of last resort; in family cases they should be the very last resort; per Nazareth NPJ, in G v S (2001) 4 HKCFAR 419, [2001] 3 HKLRD 842, at § 21. However, before me is a determined non-payer. I am sure he did so in order to pressurize P to come to his terms regarding the maintenance payable to the daughter. His breach was contumacious. As I see it, the choices before me are very limited. The rather modest sum of $17,500 is out-weighted by the gravity of R’s conduct. There is no reason why he should not be committed to prison. Considering everything in a round, I consider that a 6 weeks’ committal is appropriate. Orders 74.I will therefore make an order that the judgment debtor be committed to prison for the period of 6 weeks. He can be released upon full payment of the sums of $17,500 and $2,174.80 plus daily interest at the rate of $3.80 calculated up to the date of payment. 75.As from 1 January 2015 up to 1 June 2016, this is another sum of $45,000 ($2,500 X 18 months). This has to be repaid by a monthly instalment of $1,000 each; the first payment to be made on the 1st day of the month following the judgment debtor’s release from committal. In the meantime, I suspend the interim maintenance order pending further order of the court. 76.I have arranged a court interpreter to assist R on the contents of this Judgment. After that, I will hear R’s mitigation pleas on his contempt of court.
Ms Manek of B Manek & Co, Solicitors, appeared for the petitioner YCF, the respondent, appeared in person | |||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 14949/2013