Lyy v. Wyw

FCMC 11649 / 2015

[2018] HKFC 201

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 11649 OF 2015

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BETWEEN

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D E C I S I O N
(Civil Contempt : Sentencing)

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Background

1.The Petitioner is the Wife and the Respondent is the Husband.    For the sake of convenience, I will refer to them as “W” and “H” respectively in this Decision.

2.Parties married in Hong Kong in July 2014.  W is now at the age of 36 and H also at the age of 36.  This is a short and childless marriage which lasted for around 14 months. 

Chronology of Events

3.In September 2015, W presented a Petition for divorce relying on the fact of “Unreasonable Behaviour”.  At paragraph 9 (c) of the Petition, it is W’s case that she was once assaulted by H which had caused her injuries.  The matter was reported to the Police and she was later informed by the Police that H was bound over in Fanling Magistracy for 12 months. 

4.The Petition was first served by registered mail.  H’s father acknowledged the registered mail but H did not file the requisite Acknowledgment of Service (Form 4).  Eventually, the Court directed that service of the Petition to be effected by way of advertisement once and also insertion into the letter box at H’s last known address. 

5.Decree Nisi was granted on 25 August 2016.  H was ordered to pay the costs of the divorce suit.  Question of ancillary reliefs was adjourned to 1^st Appointment on the following day (that is, 26 August 2016).  At the hearing on 26 August 2016, H was absent.  The 1^st Appointment was adjourned to 4 November 2016 with directions to court bailiff to serve the Order personally on H. Penal Notice was endorsed on this Order.

6.Service of the Order dated 26 August 2016 by court bailiff was unsuccessful.  Accordingly, W’s lawyers applied for vacating the 1^st Appointment hearing on 4 November 2016 which was re-fixed to 16 February 2017.    

7.Meanwhile, on 24 January 2017, W successfully obtained leave of the Court to issue committal proceedings.  On 3 February 2017, W issued the Summons for Committal returnable on 22 March 2017.  On 10 February 2017, W’s lawyers applied by letter to vacate the hearing on 22 March 2017 as they had not yet been able to serve the Summons for Committal on H.  Thus, the hearing originally scheduled for 22 March 2017 was vacated and re-fixed to 18 May 2017.  However, it then turned out that the Summons for Committal was successfully served on H four days later on 14 February 2017.  H was then informed by W’s lawyers that the original hearing date of 22 March 2017 had been re-fixed to 18 May 2017[1].

8.At the hearing on 18 May 2017, H failed to attend.  This Court issued a Warrant of Arrest and W’s Summons for Committal was adjourned sine die with liberty to restore.

9.Despite having been served with the Summons for Committal and he had failed to attend the hearing on 18 May 2017, it was around 10 months later that H suddenly appeared and issued a Summons on 27 March 2018 seeking removal of restrictions upon him from leaving Hong Kong.  In his supporting Affirmation, he deposed that it was for the sake of his convenience to seek medical treatment and visiting relatives.  H’s Summons was scheduled to be heard on 16 July 2018.

10.At the hearing of H’s Summons on 16 July 2018, H appeared unrepresented.  Directions were given to him to file and serve his Form E within 7 days.  H was prohibited from leaving Hong Kong without leave of the Court.  Leave was granted to W to restore her Summons for Committal.  The hearing was adjourned to 26 July 2018.

11.On 18 July 2018, a Notice to Act was filed by H’s lawyers.

12.On 25 July 2018, H with the assistance of his lawyers filed his Form E but without any single piece of supporting documents or attachments.

Admission of Guilt and Purge of Contempt

13.At the hearing on 26 July 2018, H’s Counsel Mr. Taylor L.K. Li confirmed H’s admission of contempt and sought for 7 days’ time for H to purge the contempt.  This Court expressed the view that the Form E lacks supporting documents which was unusual when it was prepared by lawyers.  In any event, leave was granted to H to file and serve within 7 days his Affirmation on admission of contempt.  Leave was also granted to H to file and serve an Affirmation to supplement any missing information and produce as exhibits those documentary evidence which should have been filed together with his Form E.  H was also granted leave to file written submissions on mitigation within 7 days for this Court to consider sentencing.  The hearing was then adjourned to a date to be fixed for sentencing pending compliance with all the directions.

14.On 2 August 2018, H filed his 1^st and 2^nd Affirmations along with 14 exhibits (“WYW-1” to “WYW-14”).

15.On 19 October 2018, H’s Counsel filed his written submissions on sentencing.  In the submissions, reference was made in reply to W’s submissions of a case decided by this Court, namely, 邱 及 李 [2018] HKFC 80 where the contemnor in that case received a custodial sentence of 8 weeks for contempt for failing to file his Form E and answer questionnaires during enforcement proceedings by way of judgment summons. 

16.H’s Counsel had not come up with any other case law or authorities for mitigation.  Whilst accepting the case of 邱 及 李 is good law but distinguishable from the facts of this case, H’s plea in mitigation was that this is not the most serious case of contempt for the following reasons :-

(a)  H was acting in person at the material time of contempt;

(b)  H pleaded guilty after seeking legal advice. His plea of guilt avoided further waste of Court’s time for adjudication of contempt thus avoiding W having has to give evidence;

(c)  H had tendered his genuine apology both when acting in person and by way of his 2^nd Affirmation;

(d)  H unconditionally accepted the omission was not accidental but it was not contumacious;

(e)  H was and is under radioactive treatment for Hyperthyroidism and suffering from panic disorder.

Leading cases on civil contempt

17.Before considering each and every plea in mitigation of H, I will first go to some leading cases on the topic of civil contempt and sentencing which are useful and binding upon me.

18.In Willwin Development (Asia) Company Limited v. Wei Ying and others[2], Hon B Chu J sets out the general principles on civil contempt as follows :

“General Principles

4.  There is no real dispute between the parties on the general principles on civil contempt, which have been set out in paragraph 52/9/1 of the Hong Kong Civil Procedure 2016, Volume 1 (HKCP). Counsel have also referred the court to various authorities. To summarise their submissions :

(a)  In civil contempt, the prime consideration in sentencing is to demonstrate to litigants that orders of the court are to be obeyed. Contempt of civil court orders is a serious matter[3];

(b)  However, a delicate balance has to be maintained in the imposition of the penalty for civil contempt between the strong public interest in ensuring that orders of the Hong Kong courts will not be flouted and the evaluation of the individual circumstances of each case[4];

(c)  Subject to mitigating factors, if any, the starting and primary penalty for contempt of court in breaching an order in the nature of an injunction is imprisonment[5]. The normal penalty for breaches of injunction orders is imprisonment measured in months[6].

(d)  In a case when there has been a failure to comply with an order of the court and where there is no evidence to suggest that compliance was in any way difficult or impossible, a sentence of imprisonment would not be inappropriate. This would be particularly so in a case where the sentence was designed to enforce compliance. A sentence of imprisonment for a wilful failure to observe a court order can often be appropriate[7].

(e)  The court is empowered with quite a few sentencing options under its inherent powers and the common law. As observed in Morris v Crown Office [1970] 2 QB 114 :-

“The powers at common law remain intact.  It is a power to fine or imprison, to give an immediate sentence or to postpone it, to commit to prison pnding his consideration of the sentence, to bind over to be of good behaviour and keep the peace, and to bind over to come up for judgment is called upon…. [8]”

(f)    It was also observed that imprisonment should be regarded as a sanction of last resort in civil contempt[9];

(g)   Where the conclusion is reached that the contempt was “not deliberate or not contemptuous”, it would be only be in very rare circumstances that s sentence of imprisonment would be appropriate[10];

(h)   In respect of a failure to comply with a mandatory order, the court has the power to commit a person indefinitely – “in cases where the contemnor obstructs the administration of justice by refusing to do something which he is required to do, that is to say something which he must do to enable the administration of justice to proceed, but it is not known how long he will remain in his obstructive and defiant frame of mind, it may well be that an indeterminate sentence is preferable.  It enables the contemnor to apply for his release if he has had a change of heart; and it enables the court to review its own decision at any time[11].”

19.In the case of Tiong King Sing v. Sam Boon Peng Yee [12], Hon To J considered the leading case in the Court of Final Appeal of Kao, Lee & Yip v Donald Koo Hoi Yan[13] and sets out a 3-stage process for adjudicating liability for civil contempt, namely, “the construction issue”; “the breach issue” and “the mens rea issue”.  His Lordship, so far as considering whether any failure to comply was accompanied by the state of mind necessary to establish punishable contempt, said as follows :

“27.  Fifth, on the mens rea issue, it is sufficient to prove that the alleged contemnor’s conduct was intentional, not casual, not accidental; and that he knew of all the facts which made it a breach of the order : Kao, Lee & Yip. An honest mistake or inadvertence will not be enough for contempt: Adam Phones Ltd v. Goldschmidt[14]. That the conduct was not intentional or reckless, but merely casual accidental and unintentional is not sufficient but might visit the offending party with costs: Kao, Lee & Yip.

28.  It is not necessary to prove that the breach was wilful or that the alleged contemnor appreciated that he did breach the order : Kao, Lee & Yip. It is also not necessary to prove an intention to interfere with or impede the due administration of justice : Kao, Lee & Yip.

29.  It is no answer to a complaint of contempt that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order : Kao, Lee & Yip.

30.  However, a contumacious disobedience to an order negates the possibility that the disobedience is “casual or accidental and unintentional” and is relevant to the penalty to be imposed : Kao, Lee & Yip.

31.  Contumacious disobedience may be inferred from matters such as :

(a) a “catch me if you can” attitude exhibited by the alleged contemnor : Grasberg Capital Asia Ltd v Huchun Joseph Yung[15];

(b) persistent non-compliance with the order : Hao Xiaoying v Wong Yiu Lam William[16];

(c) delay in complying with the order : Grasberg Capital Asia Ltd v Huchun Joseph Yung; and

(d) the engagement of lawyers within jurisdiction suggesting that the alleged contemnor must have been properly advised of the law in the jurisdiction relevant to the giving of undertaking and the consequences of its breach : Shen Xing v Li Jun[17].

32.  The plea that an alleged contemnor “did his best” or that the ordinary practice of his office was considered by him and his solicitor as adequate does not show that the failure was “casual or unintentional or accidental” : Kao, Lee & Yip.

33.  When an act or omission in breach of a court order is done or made not casually, or accidentally or unintentionally, it is immaterial that the breach was committed in reliance on a third party’s advice, even legal advice : Kao, Lee & Yip.”

20.In the recent case of Law Lai Lan v Tamang Prem Chandr[18], Deputy High Court Judge To sets out the principles on sentencing as follows :-

“SENTENCE

Principles on sentencing

40.  The starting point for consideration of sentencing this type of offence is that the court’s orders are made to be obeyed. Civil contempt of court order is a serious matter. The principles applicable to sentencing this type of offences have been usefully summarized by Au-Yeung J in Bruno Arboit as Sole Liquidator of Highfit Development Company Limited and Joo Siu Ying and Another[19] as follows :-

(1)  A prime consideration of the court in sentencing contempt is to signal the importance of demonstrating to the litigants that the orders of the court are to be obeyed.

(2)  The object of the sentence is both to punish the conduct in defiance of the court’s order and to serve a coercive function by holding out the threat of future punishment as a means of securing the protection wich the order was primarily there to do : Crystal Mews Ltd v Metterick[20] and Re Barrell Enterprises[21]. The court has to strike a balance between the two objectives.

(3)  Imprisonment should be regarded as a sanction of the last resort. Any custodial term should be as short as possible and consistent with the circumstances of the case : Willwin Development (Asia) Co Ltd v Wei Xing[22]; CMA CGM v Ng Chip Choi Maurice[23].

(4)   The court has an absolute discretion to suspend a sentence of imprisonment for such period and on such terms as it deems fit : CMA CGM v Ng Chip Choi Maurice.

(5)   The court will have to consider all the circumstances of the contempt, including the nature of the order and extent of the breach; whether the contempt was contumacious or unintentional; the reasons, motives and state of mind of the contemnor; and whether the contemnor appreciates the seriousness of the deliberate breach.

(6)   The court will have to consider aggravating and mitigating factors, including whether any prejudice is suffered by the plaintiff; whether the prejudice is capable of being remedied; whether the contemnor has cooperated and purged the contempt; and the personal circumstances of the contemnor.

41.  Of all the factors listed above, the two most important ones are whether the contemnor has purged the contempt and whether the plaintiff has suffered any prejudice which is irremediable.  If the contempt has been purged, the coercive function of the sentence has been spent. What remains to be addressed is punishment for the disobedience. Purging the contempt may even affect the sentencing option. Whilst each sentence depends on its facts and circumstances, references may still be drawn from sentences passed the court in similar cases. If the contempt has not been purged and was the result of wilful and contumacious conduct, the starting point is term of immediate imprisonment. The term depends on the prejudice suffered by the applicant as a direct result of the breach of the order and whether such prejudice is irremediable. In theory, the court has jurisdiction to impose an unspecified term of imprisonment until the contemnor purges the contempt. Such a sentence is a very draconian one and would only be imposed for the most recalcitrant contemnor and in the worst type of cases where unless the order is complied with the applicant would suffer or continue to suffer more irremediable and serious injury or damage.”

The Court’s Views

21.The contempt in question was set out in W’s Summons for Committal and the Statement filed pursuant to Order 52 Rule 2 of the Rules of the High Court.  It related to non-compliance with this Court’s first Order dated 27 April 2016 (endorsed with penal notice) directed H to file his Form E.  That Order was personally served on H as early as 20 May 2016 at Choi Fook Seafood Restaurant in Tai Po, New Territories, Hong Kong.  At the time of service, the process server was accompanied by W who identified H on whom service was then effected[24].  H was directed to file his Form E within 8 weeks, say, on or before 22 June 2016 as per the terms of that Order. 

22.In his reply, H agreed that he was approached by a man on 20 May 2016 at the said Choi Fook Restaurant in Tai Po.  He described the man was wearing slippers and not properly dressed, walked over to him in an undignified manner and thrown at him an envelope containing documents without saying a word or identified to him who he was.  As he was with some of his friends in a banquet at the said Choi Fook Restaurant, he was astonished and felt embarrassed.  He did not take away the documents. On that occasion, he recalled that he did not see W anywhere nearby[25]. 

23.I find H’s evidence unbelievable.  Since H accepted that on that day he was joining a banquet with his friends in the said restaurant, which is a public place, rather than dining by himself alone, I believe the man whom he said thrown at him the envelope must have been assisted by some form of identification of H; otherwise, how could the process server correctly “throw” the envelope to H and not to others or his friends in the vicinity ?  H did not notice W nearby is not surprising.  Indeed, this always happen in order to prevent the party on whom service was to be effected to be alerted and be able to evade service of proceedings. 

24.I also find H’s explanation of not taking away the envelope containing documents unbelievable. H deposed that he felt embarrassed in the presence of his friends when he was being “thrown” the envelope by a man whom he did not know, this implicates that his friends nearby saw what had happened; otherwise he would not feel embarrassed.  Had H decided not to take away the envelope or probably discreetly left it over, it is more probable than not or from day to day experience that his friends or even the waiter in the restaurant would have reminded him that he had left over the envelope.  Thus, on balance of probabilities, I do not believe H had not taken away the envelope that was “thrown” at him.  Having said, H said he did not take away the envelope and therefore had no knowledge of the said Order dated 27 April 2016 is a red herring.

25.I find H had been served with the Order dated 27 April 2016.

26.Since H had admitted his guilt of contempt for breach of the said Order for not filing his Form E, I will now directly move on to consider H’s 1^st and 2^nd Affirmations and also his Counsel’s written submissions on plea of mitigation.

27.As I said earlier, there was not a single piece of documentary evidence attached to H’s Form E.  Thus, none of the financial information disclosed in the contents of his Form E was supported by any documentary evidence.  It was only after being warned by this Court of the non-production of any documentary evidence, H then produced some of the documents by way of his 1^st Affirmation.  This is undesirable and unacceptable.  In matrimonial cases, it is the parties’ continuous duties and obligations on financial disclosure fully and frankly including production of documents (my emphasis).  Short of such disclosure or documents not only increase the costs of litigation and may also delay the progress of proceedings to the prejudice of the other party.  To the very least, the other party would have been put in extra costs and time for raising questionnaires in order to find out whether there are any supporting documents on the information set out in the Form E.  Any unnecessary but avoidable delay in the conduct of proceedings creates prejudice.  

28.The exhibits provided by H consists of different kind of documents varying from his medical receipts, some bank statements and some audited accounts. Surprisingly, even expenditures receipt spent for H’s wedding was included, which is obviously irrelevant for the present purpose. It is noted that exhibit “WYW-14” is a lease which was unstamped but somehow included as evidence.  Upon being questioned by this Court, H’s Counsel fairly admitted that this was a mistake on those instructing him and rightly accepted that such document could not and indeed should not be tendered as evidence.

29.On the first submission of H’s Counsel that H was acting in person at the material time of contempt, in my view, is an excuse rather than an explanation.  Taking H’s such submission to the highest, there is no reason provided as to why H did not seek legal advice or apply for legal aid to assist him after he was being served with the Order to file Form E.  The attitude of H in facing W’s financial reliefs was just turning a blind eye or adopting a “catch me if you can” attitude.  This has caused W not able to proceed with her claim for ancillary reliefs for over 2 years due to lack of any financial information of H.  At the end, W was forced to apply for adjourning sine die her ancillary reliefs claim.  This is undesirable and unjust.  Indeed, this had caused prejudice to W.

30.H’s second submission of his outright admission of guilt does not give him any credit or lend towards mitigating factors.  H had shamelessly tried to argue that he had had no knowledge of the relevant Order dated 27 April 2016.  Given the finding of this Court as to the successful personal service upon him of the said Order on 20 May 2016, H could not deny but has to admit his guilt of contempt.  This could not be considered as a mitigating factor, if not an aggravating factor, when he attempted to argue about the service which then find himself unsuccessful.

31.The submission of H’s admission of guilt which had avoided W from having to give evidence to prove contempt is another red herring.  The cited contempt in question, as clearly set out in W’s Statement filed under Order 52 rule 2 of the Rules of the High Court, was H’s failure to file his Form E.  Any proof that was required to establish such contempt would be established simply by referring to the Court records and would not require any evidence from W.  I do not accept such submission as a mitigating factor.

32.H’s third submission of tender of apology may only be considered as a mitigating factor provided that it was genuinely given.  Though I accepted that H did tender his viva voce apology before this Court during the 1^st hearing of his Summons on 16 July 2018, the events which had happened thereafter seemed to have negated any sincerity or genuineness of his viva voce remorse.  At the hearing on 16 July 2018, this Court gave a chance for H to purge the contempt and directed him to file his Form E within 7 days.  H’s Form E was then prepared by his lawyers which, as I have so found, contained not a single piece of supporting documents.  It was not even remarked anywhere in the Form E words to the effect, say, such as “documents to be provided later…..” if there was any press of time.  Since the Form E was prepared by his lawyers, had H not realised the need to produce supporting documents, his lawyers would have reminded him of such requirement. The supporting documents were not forthcoming until after he was directed by this Court.  I find such manner of handling a long belated Form E unscrupulous and intolerable.  

33.H’s fourth submission of accepting the omission not accidental but it was not contumacious is not accepted.  Contumacious disobedience may be inferred from other matters and surrounding circumstances. Any finding of contumacious disobedience to an order negates the possibility that the disobedience is casual or accidental and unintentional. (see Tiong King Sing supra). 

34.In my decision, it is not a question of H omitting to file his Form E, it is rather a question whether he was willing to file it.  The indisputable fact that H had not attended to these proceedings ever since the Petition was served by registered post and acknowledged by his father[26], H’s inactivity and non-participation throughout these divorce proceedings since the commencement in September 2015, until he was concerned about his leaving Hong Kong might be restrained, and then suddenly “appeared” with his Summons dated 27 March 2018, sufficiently showed his evasive attitude over these proceedings including any ancillary reliefs by W which he would have to face. 

35.Given such observation on H’s attitude and evasive conduct of litigation, I find H’s disobedience contumacious rather than any casual, accidental or unintentional omission. 

36.H’s fifth submission relates to his health issues and he produced a pile of medical receipts over these few years as exhibits to his 2^nd Affirmation.  He had been diagnosed suffering from Insomnia, Hyperthyroidism, Graves’ Disease, Glaucoma, Panic Disorder and had also been hospitalised intermittently for short periods of time during these few years. There is, however, no medical report to show that his health condition had affected his day to day living or his ability to handle court documents or to seek legal services and assistance either privately or through the legal aid.  Though it is unfortunate to see H suffered from multiple illnesses, he is still required to use his best endeavours to purge the contempt which he had admitted rather than putting up his multiple health conditions as reason for non-compliance of orders and then seek leniency of the Court.  Leniency could only be considered after contempt had been purged conscientiously.  From the exhibits produced, it can be seen that only 3 months’ bank statements were produced and the audited accounts not covered the latest 2 years.  H’s Counsel fairly conceded that complete set of documents is still wanting which is undesirable.

37.Given the state of H’s disclosure by his Form E, his subsequent 2 Affirmations and exhibits, I find H had been persistently delayed in his disclosure and obstructing the due administration of justice.  Without full and complete financial disclosure, it is unknown whether there had been any dissipation of assets during the past 2 years or so in respect of which W might or could have a claim upon it. 

38.I do not accept any of the 5 submissions on plea in mitigation set forth by H’s Counsel in his skeleton submissions.

39.When considering sentencing, H’s Counsel at paragraph 10 of his skeleton submissions urged this Court to distinguish the case of 邱及李 from the facts of this case.  That case was decided by this Court and a custodial sentence of 8 weeks was passed.

40.In my view, the facts of this case are even worse and more aggravating than 邱 及 李 for the following reasons. 

41.First, that case was at the stage of enforcement after ancillary reliefs had been settled by consent.  In this case, W’s ancillary reliefs had not even started and had been unnecessarily delayed by H’s conduct of litigation for over 2 years since 2015/2016. As at the date of this hearing (that is, 22 October 2018), H’s financial disclosure had yet to complete despite having been given chances to purge his admitted contempt.  W’s ancillary reliefs claim has yet to start. 

42.Secondly, the Respondent in that case had not contested his guilt at trial but only sought for a chance to provide answers to questionnaires and produce documents[27].  The Respondent in that case offered no evidence in contention and it turned out not a fully contested trial.  In this case, questionnaire stage has yet to start which depends on when H would fully cooperate in production of the missing financial documents. This is more aggravating and undesirable.

43.Thirdly, H was given a first chance on 16 July 2018 to purge his contempt by filing his Form E on or before 23 July 2018.  The Form E prepared by H’s lawyers was disappointing for want of any supporting documents.  H was then given a second chance on 26 July 2018 to purge his contempt by producing missing documents but yet it turned out to be unsatisfactory.  The Respondent in the 邱 及 李 case was unrepresented throughout the committal proceedings, he did not ask for a chance or directly file any affirmation in mitigation is not uncommon.  In this case, H was legally represented soon after he was given chances to purge the contempt but yet the Form E and documents produced are far from satisfactory.  I find H in no better position than the Respondent in the 邱 及 李 case.

44.With respect, I do not accept Counsel’s submission that this is not a serious case.  I do not accept this case does not call for custodial sentence as in the 邱 及 李 case.

Sentence

45.I find the contempt, so admitted by H, to be contumacious.

46.H’s conduct of litigation of “disappearing” in 2015/2016 and then “appearing” in 2018 could not be justified by his multiple illnesses during this period when there is no medical evidence showing that his health condition had affected his day to day living or prevent him from seeking legal advice or assistance.  During these years, W had been put in a difficult position.  W was forced to spend considerable time and expenses first to arrange substituted service of proceedings and then to pursue her ancillary reliefs which by now had been put in abeyance pending H’s further disclosure.  H, on the other hand, disappeared in 2015/2016 and only chose to appear in 2018 when he was minded about his leaving Hong Kong being restrained and tried to seek a discharge order.

47.H’s Counsel in his skeleton submissions urged this Court to consider penalty by way of fines as sentencing option and, in appropriate case, may also consider ordering H to pay costs on indemnity basis, which would be sufficient sentence for the present case.

48.I have considered those leading authorities cited in this Decision which are binding upon me.  I have also reminded myself that custodial sentence for committal for civil contempt should be the last resort bearing in mind the draconian nature and consequential impact on the contemnor, that he/she may be losing his/her job and income.

49.On the other hand, I have also considered the prejudice that had been caused to W and also civil contempt of court order is a serious matter and that court orders are made to be obeyed (see Law Lai Lan, supra).  As there had never been any financial disclosure by H since September 2015 when these proceedings were commenced or any time thereafter until H filed his first Form E on 25 July 2018 (which is almost 3 years later), it is difficult to say whether the prejudice or any damage arising out of the substantial delay are remediable through imposition of fines and/or sanction of costs, even on indemnity basis.  In particular, as I stated above, it is unknown whether there had been any dissipation of assets within the period of delay.

50.I find the circumstances and facts of this case to be worse and more aggravating than the case of 邱 及 李 which was also decided by this Court.

51.Given careful consideration to the authorities and all the circumstances, I decided that H deserved a custodial sentence not less than the Respondent in the 邱 及 李 case.  Had there been any grounds for distinguishing H’s case from the Respondent in the 邱 及 李 case, I am minded to say H deserves a longer period of commitment.

52.Having said, I am also minded to consider H’s multiple illnesses on humanitarian ground.  Given that consideration, I would commit him for the same period of 8 weeks as in the 邱 及 李 case.  In passing such sentence, I have also reminded myself that H might need medical treatment on his multiple illnesses during this period of commitment.  I believe appropriate medical treatment could be provided by the Correctional Services Department if such need arises whilst H was kept in custody.

53.I have also considered whether there was any option for me to suspend the custodial sentence.  Given H’s disobedience was found by this Court to be contumacious, I decided that there is no room for me to suspend the sentence in the interests of justice.

Costs

54.I also decided that H should pay W’s costs of the committal proceedings, including all costs reserved, on an indemnity basis and to be taxed if not agreed.

55.This is a costs order nisi which would become absolute if no application to vary the same is filed within 14 days from the date of this Decision.

Orders

56.I now make the following Orders :

(a)  H (Respondent) be committed for contempt for a period of 8 weeks from today; and

(b)  H (Respondent) do pay to W (Petitioner) all costs of the committal proceedings, including all costs reserved, on an indemnity basis and to be taxed if not agreed.

Mr Leung Fu Hang of Messrs. Wong & Co., Solicitors for the Petitioner

Mr Taylor L.K. Li instructed by Messrs. Tung, Ng, Tse & Lam, Solicitors for the Respondent