Ccmj v. Ssm Formerly Known As Skl

[2022] HKFC 161

FCMP 67/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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Coram:  His Honour Judge G. Own in Chambers (By Paper Disposal)

Date of Applicant’s written submissions :  6 October 2021

Date of Respondent’s written submissions :  4 October 2021

Date of Decision:  11 August 2022

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D E C I S I O N

(Garnishee Order Absolute : By Paper Disposal)

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Foreword

1.This is a piece of protracted litigation where there was over 22 Judgment(s) handed down by the Family Court (“FC”), Court of First Instance (“CFI”) and Court of Appeal (“CA”) over the past 12 years.

2.The Applicant is the father, whom I will refer to him as “F”. I will refer to the Respondent mother as “M”. The child in question is now at the age of 13½ years whom I will refer to her as “N”.

3.On 12/6/2014, this Court granted an Order[1] which contained the following undertakings (“the Undertakings”) by F :-

“AND UPON the Applicant undertaking to the Respondent and to the Court that he shall pay for all the Minor’s school fees, school bus, school uniform, school books and stationery so long as they are reasonable and deemed necessary by the school with school books and stationery to be initially paid by the Respondent in respect of which she will be repaid on reimbursement basis within 14 days from the Respondent’s production of receipts.

AND UPON the Applicant undertaking to the Respondent and to the Court that he shall bear all reasonable costs of extra-curricular activities arranged by the Respondent provided that the total costs of such activities shall not exceed HK$4,000 per month, such costs to be initially paid by the Respondent in respect of which she will be repaid on a reimbursement basis within 14 days from the Respondent’s production of receipts.”

4.On 5/6/2015, this Court granted an Order[2] after trial on financial provisions (“Maintenance Order”) which contained, inter alia, the following :-

“2. Subject to full reimbursements by the Applicant to the Respondent as per the Undertakings dated 12 June 2014, the Applicant do pay the Respondent the sum of HK$140,140.61 as reimbursement of expenses incurred for the Minor for the period from May 2009 to June 2014 within 14 days from the date of the Judgment dated 5 June 2015.

3. Subject to any payments already made under the Interim Maintenance Order dated 7 November 2013, the Applicant do pay to the Respondent periodical payments for the maintenance of the Minor at the rate of HK$13,726 per month commencing from 1 July 2014 and thereafter on or before the 1^st day of each succeeding month until the Minor reaches the age of 18 of ceases full time education, whichever is the later.

4. ……

5. The Applicant do pay to the Respondent carer’s allowance at the rate of HK$10,000 a month commencing from 25 October 2013 until further Order.

6. ……

7. The Applicant’s undertakings dated 12 June 2014 do stand until further Order.

8. Extra-Curricular Activities expenses for the Minor arranged by the Respondent in excess of HK$4,000 to be equally shared by the Applicant and the Respondent.”

The 1^st Garnishee Proceedings

5.On 19/3/2020, M filed her 26^th Affidavit as an ex parte application for garnishee proceedings in respect of F’s bank accounts with HSBC (“HSBC”) and Bank of China (“BOC”) for recovery of the sum of HK$181,773.90 together with interest in the sum of HK$15,803.30 accrued thereon up to 18/3/2020 and further interest to be accrued until date of payment together with costs of the garnishee proceedings.

6.On 19/5/2020, this Court granted 2 garnishee order(s) to show cause[3] ordering F and the respective garnishee(s) to attend court on 6/7/2020.

7.On 6/7/2020, Deputy Judge To granted the following order upon F’s undertaking to pay 2 sums within 7 days after F’s garnisheed account(s) being unfrozen, namely, (a) HK$7,144 representing N’s school fees and related school expenses for the school term starting in September 2020; and (b) HK$22,000 being undisputed amount under the garnishee order proceedings. The learned deputy judge then ordered[4] :-

“1. The issue arising from the Applicant’s liability to pay under the undertakings as set out in the Order dated 12 June 2014 be transferred to Court No.3 for further directions on 9 October 2020 at 9:30 a.m. with 30 minutes reserved;

2. ……

3. The Garnishee Order to Show Cause granted on 19 May 2020 be set aside with costs reserved to be dealt with upon the hearing in Paragraph 1 above.”

8.On 9/10/2020, this Court made no Order as to costs of the said garnishee order(s) to show cause proceedings. F to pay the costs of the hearing of that day and that M’s own costs be taxed in accordance with Legal Aid Regulations[5].

The 2^nd Garnishee Proceedings

9.On 16/10/2020[6] and 28/10/2020[7], M filed her 27^th and 28^th Affidavits respectively as ex parte application(s) again for fresh garnishee proceedings in respect of F’s bank accounts with HSBC and BOC for the total sum of HK$289,111.00 together with interest to be accrued under the Undertaking(s) dated 12/6/2014 and the Maintenance Order dated 5/6/2015.

10.On 17/11/2020, this Court granted 2 garnishee order(s)[8] to show cause ordering F and the respective garnishee(s) to attend court on 23/2/2021.

11.Due to public health concern arising from the Covid-19 pandemic, the hearing on 23/2/2021 was re-scheduled by the learned deputy judge to 20/4/2021.

12.On 20/4/2021[9], Deputy Judge To ordered that the 2 garnishee order(s) to show cause be adjourned to 7/10/2021 at 10:30 a.m. for substantive argument with 1 day reserved. Leave was granted for F to file Affidavit in Opposition and consequential leave for M to file Affidavit in Reply, if any.

13.F filed his 46^th Affidavit in Opposition[10] where he also referred to his 45^th Affidavit filed earlier when he opposed M’s 1^st Garnishee Proceedings.

14.M filed her 29^th Affidavit in Reply[11].

The substantive hearing on 7/10/2021

15.At the hearing on 7/10/2021, F turned up unrepresented and sought an adjournment of the trial. F first submitted that he had just applied for legal aid and was awaiting the outcome of his application. He further submitted that he was suffering from Depression, Anxiety and Insomnia and referred the Court to some historic medical records[12]. H said he also suffered from other chronic disease and had psychiatric issues causing him unable to focus on the matter.

16.Besides, he said he did not receive complete set of documents from his previous lawyers Messrs. Chan & Chan except some loose sheets of the Trial Bundles. He still owed Messrs. Chan & Chan legal costs. He gave the reason for the late application for legal aid was that his previous lawyers only told him the amount of legal costs and Counsel fees required of in order to continue representing him just a few dates before this trial. He found that he was unable to afford and then applied for legal aid.

17.Upon hearing F’s submission, M’s lawyers agreed to provide F with another complete set of the Trial Bundles upon F’s agreement to pay the prescribed photocopying charges. This Court decided to adjourn the trial to 17/11/2021, which coincidentally was 43 days later, for F to prepare his case.

18.It was also confirmed with both parties that there would not be any viva voce evidence at the substantive trial and that parties would confine to their affirmation evidence filed and also the written submissions provided and exchanged. It was also directed that no further Affirmation or Submissions could be filed by either party unless otherwise directed by the Court.

The adjourned hearing on 17/11/2021

19.F appeared in person. He sought a further adjournment for about 3 months as he expected by then his legal aid application would be decided. As a matter of fact, F had sent in a letter dated 12/11/2021 (copied to M’s lawyers) setting out his request for adjournment. In essence, he repeated his earlier reasons about his physical condition and mental illness and submitted that he was unable to handle the case without legal help. He referred to 2 medical certificates back in August and October 2021 and also photographs showing the medication/prescription that he was taking each day all of which would cause him drowsiness.

20.At this hearing, F suggested that the trial could be conducted in trunks of, say, an hour or less in a day until it finishes for the reason that he could not sustain a whole day trial continuously in Court and also without legal assistance. M’s lawyers Miss Chow opposed F’s second adjournment. Given F’s situation, Miss Chow came up with another suggestion for the trial to be disposed of on paper given that the issue in dispute does not involve findings of fact or parties’ credentials and there would not be any viva voce evidence from the parties.

21.F opposed to the suggestion of disposal on paper. F requested for an oral hearing for him to clarify physically in Court on those matters raised by M and, whenever appropriate, he would elaborate his case by way of oral submissions.

22.The suggestion of the trial to be disposal of on paper was accepted. However, given consideration to F’s submitted physical condition and in particular, mental illness, this Court directed the Official Solicitor to carry out investigation over F’s mental condition and produce their Report before 22/12/2021. Such arrangement was warranted and fair to F in order to ensure that his 46^th Affirmation evidence (17 pages with 59 paragraphs) (even though it was prepared by his then lawyers) was upon clear instructions given whilst he was mentally capable to do so. This would also serve the same purpose over his written submissions dated 6/10/2021 (10 pages with 49 paragraphs) prepared by himself.

23.It was noted that F had filed a Summons seeking variation of the Maintenance Order which was scheduled for a call-over hearing to be heard on 13/12/2021.

24.Given the need of the Official Solicitor’s assistance and Report over F’s mental condition, F’s Summons for variation of the Maintenance Order was accordingly adjourned sine die with liberty to restore by F pending outcome of the Official Solicitor’s Report.

The Official Solicitor’s Report

25.On 15/12/2021, the Official Solicitor applied for an extension of time to produce their Report on or before 1/3/2022. The requested time extension was granted by the Court.

26.On 11/1/2022, the Official Solicitor produced their Report which contained the following conclusion :-

“Conclusion

In light of the available medical findings and subject to the Court’s decision, we are of the view that the Applicant should be entitled to the right of self-determination and it may not be necessary or appropriate to appoint a next friend for him in the proceedings.

In the circumstances, we consider that this case could continue to proceed. If it is considered that a legal representative is required, it is suggested that the Applicant may instruct a solicitor on private basis or apply for legal aid.”

F’s Legal Aid Application

27.On 27/1/2022, the Legal Aid Department issued the Memorandum of Notification where F’s application for legal aid was refused.

The Hadkinson Order under CACV No. 84/2021

28.On 26/1/2022, which was just the day before F’s legal aid application for contesting these proceedings was refused, the Court of Appeal handed down its decision[13] on M’s application for a “Hadkinson Order” to be made in respect of F’s intended appeal against the decision of Madam Justice B. Chu on 3/2/2021 whereby F’s application for custody, care and control of the child N was dismissed after a lengthy trial.

29.The two orders in respect of which M invited the Court of Appeal to require F to comply with before F’s was to be allowed to proceed with his intended appeal aforesaid are actually the Undertakings dated 12/6/2014 (where undertakings to pay extra-curricular activities are now in dispute) and the Maintenance Order dated 5/6/2015 (where payment of extra-curricular activities arranged by M are now in dispute).

30.In the 22-page Judgment, the Court of Appeal found :-

(a)  F was in contempt/deliberate and continuing breach of the 2 orders of this Court[14]; and

(b)  There was impediment to justice[15].

31.That said, it is informative to refer to some important findings of the Court of Appeal on their determination of F’s conduct.

32.At paragraphs 37 and 39 of the Judgment where it was said :-

“37. The Father is in breach of the two orders by which he either undertook or was required to pay the specific sums. He has only made partial payments. His conduct is a cynical disregard of his obligations under the two orders. Plainly, he is in contempt and the contempt is deliberate and continuing. He said he is not liable to pay the ECA expenses sought by the Mother but there is no defence to his liabilities to pay N’s maintenance and the Mother’s carer allowance. He had not disputed that he is so liable and had, in fact, admitted at this hearing that he is liable.

38. …….

39. The Father said he was unable to pay the money. This is clearly not justified. He had until recently, for this application, instructed a team of lawyers which included an experienced specialist counsel and junior counsel. Judge Own in his decision of 23 September 2020 also referred to the names of prominent senior counsel that the Father had previously instructed in the proceedings between the parties. The Father said he has to rely on borrowing from friends and relatives to finance his litigation but the loans which according to the calculation by the Mother amounted to $5.8 million were apparently advanced to him without any security. The Mother stated, according to the Father’s own evidence, since 1 October 2020, when he ceased to pay N’s maintenance and the Mother’s carer allowance altogether, he had borrowed $1.9 million, from which he paid $300,000 to his solicitors, on 1 March 2021. This is to be compared with the total outstanding sum for N’s maintenance and the Mother’s carer allowance as of that date which was only $172,356 (excluding interest). This belies his claim that he is concerned with the well-being of N and has to instruct prominent lawyers to fight for her. This is another example of someone who stopped the payment for reason of parsimony rather than principle. Further, it is clear that the Father has the capacity to borrow to finance his expenses.

33.Further, at paragraph 43 of the Judgment as to the finding of impediment to justice where it was said :-

“43. In our view, the Father’s breach to pay under the two orders impedes the course of justice. The history of this case shows the difficulty in enforcing the two orders which the Father has chosen to ignore. Although the Mother is legally aided, she requires the maintenance and allowance for N and herself. The Father has no defence to the payment of these sums. We agree with Mr. Surman that the Father’s non-payment has a very considerable and detrimental impact on N – her education and her general well-being and it obstructs the exercise of the Court’s quasi-parental powers over N who is a ward of the Court. The Father has a moral and legal obligation to discharge his obligations. Further, the costs incurred in these proceedings are totally out of proportion to the money at stake.”

34.I have reminded myself that the above findings of the Court of Appeal should not be affecting F’s case of defence in the present dispute. The above reference was, however, brought upon in this decision only because it touched upon the Undertakings and the Maintenance Orders of this Court which F was now contesting his liability to pay the extra-curricular expenses which M had spent on the child N.

F’s defence

35.F in his 46^th Affirmation in opposition, where he also referred to his 45^th Affirmation filed earlier in respect of M’s 1^st garnishee proceedings, raised no issue that a substantial part of N’s maintenance and M’s carer’s allowance under the Maintenance Order were outstanding due to his dire financial condition. F plainly admitted that the main issue or dispute in the present case was the expenses for the item of extra-curricular activities “ECA” under the Undertakings and Maintenance Order.

36.F’s contentions set out in his 46^th Affirmation, insofar as they relate to the expenses of extra-curricular activities, can be analysed and grouped under 3 areas :-

-  Expenses by definition within school curriculum and not involving development of N’s other potentials extra to the subjects covered by school are not “ECA” expenses. F had used the terminology “Illegitimate Items” in his 46^th Affirmation;

-  Expenses claimed with no original receipts produced;

-  Expenses spent without first consulting him or with his prior consent being obtained.

37.It was noted that F had included in his 46^th Affirmation at different paragraphs a number of criticisms against M and other contentions, the bulk of which are unrelated to the present issue in dispute. Hence, those criticisms and contentions would not be canvassed in this Decision. The contentions included, inter alia, N’s performance at school and N’s mental well-being, M overloading N with unnecessary homework and tuition classes, N’s academic ranking in her primary school studies so on and so forth. There are also lengthy paragraphs on his own health and financial condition; his attitude towards overpaying N’s expenses and some others.

38.Oddly, F even went further to submit that neither the Undertakings nor the Maintenance Order required him to pay management fees and government rent of the One Silversea property which was adjudged to be settled on trust for the use of N and the carer M (i.e. mother). F submitted that the management fees and government rent totalling around $5,000 per month adding up to around $255,000 should offset the amount which he needed to pay M or that M should pay him back the management fees and government rent since April 2017 when possession of the One Silver Sea property was delivered up by him[16].

39.On his 1^st contention as to the definition of “ECA”, F submitted that he had consulted Social Welfare Department, Hong Kong Welfare Society, Caritas Family Services and the Hong Kong Education Bureau[17]. He was told that homework and tuition classes are not ECA and thus M should not have claimed homework and tuition classes as “ECA” of which he should not be liable to pay under the Undertakings or the Maintenance Order.

40.On his 2^nd and 3^rd contentions, F submitted that M did not allow him to observe or visit those ECA activities thus giving him no chance to see the value of those activities. Besides, the homework and tuition classes were held at home with no interaction between N and her peers for any social life involvement[18].

41.At paragraph 57 of his 46^th Affirmation, F made his own arithmetical calculation allegedly based upon what N told him, there might be a surplus of about $7,700 a month out of the monthly maintenance of $13,726 ordered by this Court back in 2015.

M’s case and reply

42.In countenance to F’s 1^st contention as to the definition of “ECA”, M referred to the historical background and circumstances back in 2014 and the transcript of hearing on 12/6/2014 where there were discussions between Counsel on the provision of “ECA”. At the hearing, it was confirmed by F’s Counsel Mr Jeremy Chan that F would agree to pay whatever ECA that M enrolled for N provided that the amount was under HK$3,000 (which was subsequently discussed and raised to HK$4,000). At that time N was enrolled in (a) E Nopi (mathematics); (b) English (private tutor); (c) Drawing lessons and (d) Dancing classes which, by and large, resemble those ECA expenses claimed in the present application; namely (a) Mathematics; (b) English tuition; (c) Cello class; (d) Drawing class and (5) Dancing class[19].

43.As a matter of fact, F through his then lawyers Messrs. Haldanes had paid the sum of HK$83,626 for reimbursement of N’s ECA expenses from May 2009 to June 2014 which included SDM Ballet, drawing class, speaking class, Mandarin class, swimming class, E Nopi (mathematics), interview class, E Nopi (English) and dancing class[20].

44.As to F’s 2^nd and 3^rd contentions, M submitted that there was no requirement of producing original receipts or seeking F’s prior consent for enrolment of ECA for N under the terms of the Undertakings and Maintenance Order. F’s submission was made as additional hurdles on M to claim reimbursement on N’s expenses for the ECA[21].

45.M also took the liberty to set out at various paragraphs of her 29^th Affidavit other disputes outside the scope of the present dispute of expenses for ECA. Same as in F’s case, I would not venture to go to those paragraphs in this Decision.

The Court’s Views

46.It is trite that Court orders should be strictly adhered to or complied with in all aspect and that Undertakings given thereunder or embraced within the terms of Court orders are alike.

47.Should there be any ambiguities or disputes between the parties, whether over the meaning and effect of the terms of the order; or on the applicability or scope of the order; or as to the compliance of it, the parties involved in or being affected should seek clarification or direction from the Court to resolve the ambiguities or disputes. Having said, proper application should be made at the earliest possible moment and in the correct manner and forum to avoid any prejudice or delay.

48.The terms of the Undertakings and Maintenance Order, insofar as the disputed item of expenses for extra-curricular activities was concerned, related to expenses spent by M over the years for N’s enjoyment and benefits. It goes back to some 7 or 8 years from and since 2014 or 2015. In my view, 7 or 8 years is a long period of time. Over these years, expenses for N’s extra-curricular activities are incurring and accruing on a continuous basis, month by month and year by year.

49.On the records, F had once made an application back in 2016 for discharge/modification of his undertakings given as per the Undertakings back in 2014. Such application was eventually dismissed by this Court after a full blown trial. F had not appealed against the dismissal nor had he taken any other steps or applications to seek clarification of the scope of the undertakings; in particular, what expenses are or should be embraced or covered by the term “ECA” within the Undertakings and the Maintenance Order. What had then happened, as M’s lawyers rightly submitted, was that F simply sit upon the matter and chose to either delay or default in compliance of his undertakings on payment of the extra-curricular activities.

50.As at the present stage of the enforcement proceedings, F raised as his defence against the garnishee order(s) nisi to be made absolute by taking issues over the necessity, appropriateness and also definition of the term “extra-curricular activities”, in order for him to avoid paying the accrued and long overdue arrears which M had spent throughout these years. In my decision, this is most unscrupulous and unfair. F’s long inactivity or silence since 2016 for clarification, if he really so wishes, of the definition of ECA expenses or the scope of it might now even constitute waiver or estoppel for him to do so at the present stage of enforcement.

51.As a matter of fact, this Court in its Decision[22] on dismissing F’s Application for discharge/modification of Undertakings in 2016 had already said :-

“Had there been any disagreement by the Father whether as to the expenses claimed by the Mother fall within the scope of the Undertakings or supporting receipts, it is for the Father to seek further directions from the Court if it could not be resolved amicably through respective lawyers.”

52.In my decision, it is not for F himself to dictate or decide the scope of “ECA” under the Undertakings and Maintenance Order by seizing the convenience and advantage of the “word-confined” definition that he had obtained and then chose to default in compliance of his undertakings on payment without first seeking the Court’s clarification even though he had ample time and chance to do so since 2016. The “word-confined” definition could only serve as evidence for the Court’s consideration and could never be an excuse or explanation to “justify” non-compliance of undertakings given especially when those undertakings were provided with the aid of legal assistance of Counsel and solicitors.

53.On the terms of the Undertakings and Maintenance Order, there was no requirement of original receipts to be produced by M or prior consent to be obtained from F for enrolling extra-curricular activities for N. That said, F’s 2^nd and 3^rd contentions failed completely.

54.For all the above reasons, I find against F on all his grounds of opposition to the garnishee order(s) obtained by M in respect of his HSBC and BOC accounts to be made absolute.

Was F’s ability to pay an issue for this Court ?

55.I noticed that the learned deputy judge To in her order(s)[23] granted on 6/7/2020 under the 1^st garnishee proceedings directed that the issue arising from F’s liability to pay (emphasis added) under the Undertakings be adjourned to this Court. The subsequent set of similar order(s)[24] dated 20/4/2021 under the 2^nd garnishee proceedings only directed that the garnishee order(s) nisi be adjourned for substantive argument (emphasis added) without specific reference to F’s liability to pay (emphasis added) as she had done so in the 1^st garnishee proceedings.

56.Since F was directed by the learned deputy judge to file his Affirmation in Opposition 21 days after the order dated 20/4/2021, it would only be fair to say that the learned deputy judge was not aware of F’s line of contention whether it would include or exclude his ability to pay (emphasis added) apart from his liability to pay when F was challenging the 1^st set of garnishee proceedings.

57.It now transpired in F’s 46^th Affirmation in Opposition that he was contesting on both liability to pay and ability to pay in these 2^nd garnishee proceedings. Given F’s dual contention of liability to pay and ability to pay, F’s ability to pay does not call for consideration for the following reasons.

58.First, challenging garnishee order nisi to be made absolute, if successful, does not require F to make further payment from his resources on hand. Thus, ability to pay was not an issue requiring adjudication. Secondly, given the observation of the Court of Appeal[25] on F’s latest financial status, any consideration of F’s ability to pay would be superfluous since it is plain and obvious that F has the ability to pay or raise funds to pay even if this was needed.

Decision

59.I now decided that the 2 garnishee order(s) nisi both dated 17/11/2020 be made absolute forthwith.

Costs

60.Given the decision above, I decided that it must be fair and reasonable for me to order F to pay all the costs of and occasioned by his opposition to the 2 garnishee order(s) nisi both dated 17/11/2020 obtained by M, including all costs reserved.

61.M’s own costs be taxed in accordance with Legal Aid Regulations.

Orders

62.I now grant the following Orders :-

(a)  The Garnishee Order Nisi dated 17/11/2020 in respect of F’s HSBC bank account be made absolute forthwith;

(b)  The Garnishee Order Nisi dated 17/11/2020 in respect of F’s BOC bank account be made absolute forthwith;

(c)  F do pay to M all costs of and occasioned by his opposition to the said garnishee order(s) nisi to be made absolute, to be taxed if not agreed; and

(d)  M’s own costs be taxed in accordance with Legal Aid Regulations.

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

Applicant unrepresented, appearing in person on 7/10/2021 and 17/11/2021

Miss Chloe Chow of Messrs. Stevenson, Wong & Co, Solicitors for the Respondent on instructions of the Director of Legal Aid