T v. A
Read the full judgment text of HCMP 1948/2019 on BabelCite. This High Court CFI judgment was delivered on 29 August 2022.
1. The father of the ward AAR (“ P ”) has issued a summons in these wardship proceedings (“ Leave Summons ”), for leave to issue a writ of sequestration against all the real and personal property of AAR’s mother (“ D ”) for her failure to comply with an order to return AAR to the jurisdiction of Hong Kong (“ Return Order ”).
Cited by 1 case · Cites 3 cases
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HCMP 1948/2019 [2022] HKCFI 2631 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 1948 OF 2019 _______________________
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______________________ Before: Hon B Chu J in Chambers (Not Open to Public) by Paper Disposal Date of Hearing: 13 July 2022 Date of Plaintiff’s Supplemental Submissions: 27 July 2022 Date of Defendant’s Reply Submissions: 12 August 2022 Date of Judgment: 29 August 2022 _________________ JUDGMENT _________________ INTRODUCTION 1.The father of the ward AAR (“P”) has issued a summons in these wardship proceedings (“Leave Summons”), for leave to issue a writ of sequestration against all the real and personal property of AAR’s mother (“D”) for her failure to comply with an order to return AAR to the jurisdiction of Hong Kong (“Return Order”). 2.The preliminary issue raised by this Court is whether the Return Order imposes a mandatory obligation on D to return AAR to Hong Kong within the stipulated deadline (“Preliminary Issue”). In considering the Preliminary Issue, the Court will also examine its jurisdiction in using sequestration as a tool to secure the return of a ward or a child, wrongfully removed. 3.The Leave Summons was originally fixed for a substantive hearing before this Court on 13 July 2022 (“Hearing”). D has been legally unrepresented throughout these proceedings in Hong Kong and she attended the Hearing through VCF[1] in Crimea. At the Hearing, in light of the Preliminary Issue, the Leave Summons was adjourned for the parties to lodge further written submissions for the Court to consider the issue on papers. BACKGROUND 4.P was born in the United Kingdom, and D was born in Russia. D later moved with her parents to Crimea. P moved to Hong Kong in 1993 and the parties met here in 2004. They were married in Hong Kong in July 2005 and AAR was born in Hong Kong in October 2007. AAR will be 15 in about two months’ time. AAR was habitually resident in Hong Kong and attending school here until summer 2018. 5.The marriage fell into difficulties in 2016 and P moved out of the matrimonial home. The parties entered into a Deed of Separation on 17 March 2017. In May 2017, the parties entered into a consent summons in relation to ancillary relief and custody and P issued divorce proceedings in Hong Kong. 6.The former matrimonial home was sold pursuant to the Deed of Separation and as part of the agreed terms, P bought a flat in Discovery Bay for D and AAR to reside in and the flat was registered in D’s sole name (“Property”). The parties’ agreement in relation to ancillary relief and custody were embodied in a consent order dated 12 October 2017 (“Consent Order”) and thereafter, the decree absolute of divorce was granted to P on 18 December 2017. 7.Pursuant to the Consent Order, the parents are to have joint custody of AAR, with D having her care and control and P having reasonable access including staying access. The Consent Order contains a usual restriction that AAR is not to be removed from Hong Kong without leave of court, unless with written consent of the other parent, by either parent having given a general undertaking to return AAR to Hong Kong when called up to do so. 8.Under the arrangement of P and D, from August 2017 to June 2018, AAR was living with her father and under his care during weekdays and only stayed with her mother during the weekends. According to P, this was to facilitate AAR’s schooling due to the close proximity of her then school to P’s residence. On 30 June 2018, AAR moved to stay with D and on 1 July 2018, D and AAR went to Russia for their annual summer holidays. They were due to return to Hong Kong on 14 August 2018, the day before AAR was to commence attending a new school. On 2 July 2018 P was informed by D that she would not be returning to Hong Kong with AAR. 9.Immediately on 3 July 2018, P filed papers with the Hong Kong Central Authority for assistance in commencing return proceedings under the 1980 Hague Convention on International Child Abduction (“Convention”). However, an issue arose as to whether Russia or Ukraine was the proper “contracting state” under the Convention given that since 2014, the political status of Crimea has been disputed by Ukraine and Russia. Eventually on 22 August 2018, P was told by the Hong Kong Central Authority that it was not able to assist. P then sought the assistance from the British Consulate in Hong Kong and obtained advice to contact a charity called ReUnite in UK and through ReUnite, P was recommended a Russian lawyer who has since been assisting him in return proceedings under the Convention in Russia and all related proceedings thereafter. 10.On 25 April 2019, the Russian Court made an order for the return of AAR to Hong Kong. D appealed in May 2019 but on 24 June 2019, the Court of Appeal in Russia upheld the return order. In August 2019, an order for enforcement was issued by the Russian Court, and the bailiff went to retrieve AAR from D’s apartment in Crimea, and according to P, he went with his Russian lawyer to D’s apartment in Crimea to observe the bailiff’s attempt to retrieve AAR. The attempt was however unsuccessful. D then obtained a temporary order on 2 September 2019 against the Russian bailiff and in October 2021, D issued court proceedings against the bailiff. 11.In the meantime, P issued the present wardship proceedings on 28 October 2019 and on the same day P obtained the Return Order from this Court. 12.On 14 November 2019, D’s new proceedings against the bailiff were dismissed by the Russian Court. 13.P’s Russian lawyer then received notice from the bailiff on 24 September 2020 that D had moved her place of residence from Crimea to an address in Sochi, Krasnoyarsk in Russia. 14.P had attempted mediation with D in May and June 2021 but all mediation attempts failed. Then on 26 July 2021, P’s solicitors in Hong Kong received a letter from a firm of solicitors said to be acting for D and indicating that they had instructions on behalf of D to deal with the Property and demanding P to vacate his registration of the Consent Order against the Property[2]. 15.P then issued the Leave Summons and obtained an order for service out of jurisdiction on D at her address in Sochi and also at her last known address in Crimea. Subsequent thereto, D provided firstly the address of the Property and then another address on Castle Peak Road in Kowloon for all documents to be mailed to her. An order was made for service of the Leave Summons at these additional addresses. As D had attended the Hearing (through VCF), she had clearly received the Leave Summons. Further, at the Hearing, it was clear that D had received the Return Order and fully aware of its contents. Thus, the Court ordered that personal service of the Return Order to be dispensed with under Order 45 rule 7(7) of the RHC[3]. THE COURT’S JURISDICTION IN GRANTING LEAVE TO ISSUE A WRIT OF SEQUESTRATION The relevant statutory provisions 16.First of all, Order 45 rule 5 of RHC states that:
17.Thus, where a person “refuses or neglects” to do an act within the time specified by the judgment or order or where he “disobeys” a judgment or order requiring him to abstain from doing an act, one of the remedies for enforcement of the judgment or order under Order 45 rule 5(1)(b) is by way of a writ of sequestration. As stated in 45/5/5 of the HKCP[4], such refusal, neglect or disobedience must be of a character or quality to constitute a contempt of Court. 18.Not only positive judgments or orders may be enforced by sequestration, negative orders are also enforceable by sequestration by virtue of the express provision of Order 45 rule 5(1)(b)[5]. Further, as set out in 46/5/3 of HKCP, although Order 45 rule 5 refers to the power of the Court to grant leave to issue a writ of sequestration where a party refuses or neglects to comply with or disobeys a coercive order of the Court, the Court has inherent power to ensure that its orders are carried out in the interest of justice. Therefore, as cited, in case of a declaratory order in Webster v Southwark LBC [1983] QB 698, in a situation where a party knowingly adopts and continues a policy of refusing, neglecting or disobeying to comply with its terms, the Court has power under its inherent jurisdiction to grant leave to issue a writ of sequestration. 19.It is further set out in 46/5/1 of HKCP that Order 46 rule 5 recognises the writ of sequestration is the most drastic method of enforcing a judgment or order, and therefore the writ of sequestration shall not be issued except (1) with the leave of the Court and (2) that such leave must be obtained by motion to a judge. In an application for sequestration, the question for the Court is whether a contempt has been committed[6]. 20.In relation to civil contempt, it has been set out in 52/1/16 of the HKCP that the proper approach to committal for civil contempt by reason of breach of a court order is a three stage test, namely, it is necessary to:
21.As further stated in 52/1/17, to succeed, 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. 22.To summarise, in order for the court to grant leave to issue a writ of sequestration, the applicant has to prove to the court beyond reasonable doubt that the respondent is guilty of contempt by way of the Three Stage Test. The relevant authorities in England concerning sequestration in wardship/children proceedings 23.Mr Marwah has referred the Court to 4 cases in England in relation to a writ of sequestration being issued in wardship proceedings or proceedings concerning a child being removed from jurisdiction, for the purpose of enforcing the return of the child to jurisdiction. 24.The earliest was In re Liddell’s Settlement Trusts [1936] 1 Ch 365. Mr and Mrs Liddell had four infant children all being British subjects and all were domiciled and resident in Great Britain until Mrs Liddell took them to the United States. A mandatory injunction was granted restraining Mrs Liddell from keeping the children out of the jurisdiction. Subsequently, an order was made by Greaves-Lord J ordering Mrs Liddell to bring or cause to be brought the infant children within jurisdiction on or before a stipulated deadline. The order was served on Mrs Liddell but was not complied with. Subsequently, a writ was issued against Mrs Liddell’s messuages, goods and chattels which were to be kept under sequestration until she should, by bringing the infant children within the jurisdiction, clear her contempt. Mrs Liddell made an application to discharge the injunction order and to set aside the writ of sequestration. This was refused and Mrs Liddell appealed. 25.The issue on her appeal was essentially whether the Court had the jurisdiction to make an order requiring a person resident abroad to do an act there, and it was held that the Court had the jurisdiction to make the order, inasmuch as Mrs Liddell having been properly served, being ordinarily resident with the jurisdiction, was brought within the reach of the Court and was thus in the same position as if she were in the country and that the making of the order was for the benefit of the infants, who were wards of Court[7]. 26.In Romilly v Romilly [1964] P 22, a husband committed a contempt of court in failing to comply with an order of the court that he was to return to the jurisdiction two children of the family whom he had taken abroad. The wife was granted leave to issue a writ of sequestration in respect of that contempt with the result that certain of the husband’s funds came into the hands of the sequestrators. The issue before the court was whether those funds sequestered as a result of an earlier contempt could be used to pay arrears of alimony pending suit under another order of which the husband was subsequently also in contempt. The court held that it had the jurisdiction to so order. 27.In Richardson v Richardson [1989] Fam 95, after a long history of contested litigation between the parents, Scott Baker J made an order designed to settle the future of the two wards in which a programme of access to the father was laid out, and the order was endorsed with a penal notice. The access never took place and the mother departed with the children to the Republic of Ireland and had not returned. Scott Baker J made an order restraining the mother from either dealing with or removing her assets from the jurisdiction. The mother and the wards remained in the Republic of Ireland, and the father subsequently sought and obtained leave to issue a writ of sequestration. 28.The father then further applied for leave for the sequestrators to (1) enter and take possession of the mother’s house; (2) to take possession of the personal property situated in the house; (3) to hold the house and personal property until the mother obeyed the orders of the court; (4) to sell the house and personal property in order to fund proceedings in the Republic of Ireland to secure the return of the wards and, in the alternative (5) to sell the house and property or to let the house and/or raise money by way of loan on the security of the property. 29.In his judgment, Scott Baker J had said[8]:
In the present case what is sought to be achieved is the return of these children to the jurisdiction of this court in order that they may enjoy a continuing relationship with their father. The way in which sequestration might help to achieve this is by the provision of funds from the mother’s resources to enable an application to be made in the Irish courts which, if successful, would result in an order for the children’s return, ie an order enforceable in the Irish courts.” 30.Scott Baker J had cited the Liddell case and that it was his judgment that the Liddell case established that it was appropriate in principle for a writ of sequestration to issue in the case before him[9]. 31.Scott Baker J also cited the Romilly case and had quoted from the judgment of Scarman J at page 23:
32.As pointed out by Scott Baker J, the Romilly case drew attention to a problem namely the distinction between sequestrations to enforce orders for the payment of money or fines, and those to enforce other orders of the court eg injunctive relief. Scott Baker J had said that the old practice was that in the former, the sequestrators simply held the assets until the order was complied with, whereas in the latter, the sequestrators were permitted to utilize the assets to meet the due payment and that Scarman J in the Romilly case had felt able to permit the use of the funds sequestered in respect of the first contempt to be used to meet the money due in respect of the second contempt. 33.Scott Baker J then referred to another case Con-Mech (engineers) Ltd v Amalgated Union of Engineering Workers (Engineering Section) (No 3) [1974] I.C.R. 464 where Sir John Donaldson had also touched upon the same distinction:
34.Having considered the above, Scott Baker J posed the question as to whether he was bound to follow the old practice, pointing out that the observations of Scarman J and Sir John Donaldson both tended to suggest that the old practice still prevailed although he also noted that the point did not arise for decision in either case. 35.However, Scott Baker J then went on to say:
37.MIR v MIR and others [1992] Fam 79, was another case in which Scott Baker J was the wardship judge. In the MIR case, the mother of a ward who had been removed from the jurisdiction by his father in contravention of an order made in wardship proceedings applied for the father to be committed to prison for contempt of court and for a writ of sequestration in respect of his property. The father was committed to a suspended prison sentence of 6 months and further a writ of sequestration was granted for the sequestrators to take possession of the former matrimonial home, and let it or use it as security for a loan in order that the mother might finance litigation in Pakistan directed to seeking the return of the ward to the jurisdiction. As the father failed to return the ward to jurisdiction, the mother applied for the sequestrators to be granted leave to sell the property. 38.As stated by Scott Baker J, in the Richardson case it was left open as to whether there was power of the court to make an order for the sequestered property to be sold. It was then pointed out by Scott Baker J it appeared that the underlying reason why the courts in earlier times would not make an order for sale of freehold property as the absence of any procedure whereby good title could be given to the purchaser, but then Scott Baker J went on to say that difficulty no longer existed today and that the remedy was to grant an order for the father to transfer his title to the sequestrators and if he failed to do so, then section 39 of the then Supreme Court Act 1981[10] could be invoked. Scott Baker J duly granted the application as sought by the mother. 39.What is clear from the above 4 cases in England is that although as said by Scott Baker J, sequestration is an ancient tool of the law used as a last resort for enforcing orders of the court, such an ancient tool has in fact now been adapted for use in modern conditions, and that it can in principle be used to secure compliance with an order to return a child, wrongfully removed, to the jurisdiction of this Court. The procedure for the leave application 40.The procedure for an application for leave to issue a writ of sequestration is now provided by Order 46 rule 5 of RHC:
41.I note that the commentaries in 46/5/1 and 46/5/2 of the HKCP have referred to the application for leave to issue a writ of sequestration is by motion. There seems to be an inconsistency as Order 46 rule 5(1) of RHC states that the application is by summons. In any event, no authorities have been drawn to my attention that the procedure adopted in the present proceedings, namely by way of an inter-partes summons, is incorrect. 42.As the present application arises out of wardship proceedings, under Order 46 rule 5(4), and Order 52 rule 6(1)(a), this Court may sit in private which the Court intends to do, but will give leave for an anonymized of this judgment be released for publication. THE PRELIMINARY ISSUE The relevant legal principles on construction of relevant orders 43.The 1st stage of the Three Stage Test concerns the construction of the relevant court order to ascertain its meaning and operation. 44.Mr Marwah has summarised the relevant legal principles as follows:
45.With the above in mind, I turn to the relevant paragraphs of the Return Order. The relevant paragraphs of the Return Order 46.In the present case, the Return Order[11] states amongst other things that:
D’s submissions 47.In D’s Reply Submissions of 12 August 2022, she has submitted, amongst other things, that[12]:
Discussion 48.Mr Marwah has referred the Court to Re S (Abduction: Sequestration) [1995] 1 FLR 858. In that case, the children went to England with their Israeli parents who had intended to return to Israel at the end of their sabbatical leave, but they separated before this. The mother then unilaterally retained the children in England. The father initiated return proceedings under the Convention and the judge ordered the children be returned to Israel in the following terms, as far as it was material:
49.The mother then disappeared with the children. In an effort to enforce the return order, the father then applied for leave to issue a writ of sequestration to seek sequestration of the property of the mother’s intimate personal friend H in England. H was not a party in the return proceedings under the Convention, nor was H referred to in the return order, nor was he served with the return order, nor with the leave application. 50.Johnson J had pointed out that it was important on an application such as that before him that the due process of law should be followed and that was not a circumstance in which the court should be seen to be taking shortcuts, and the procedure must be followed[13]. Neither the mother or H had appeared before Johnson J but the father instructed counsel, and also the Official Solicitor had instructed counsel as amicus curiae to assist the court. Johnson J then considered in particular whether he was satisfied so that he was sure that H in the above case knew of the return order, knew that it required the immediate return of the children to Israel, and that he had deliberately conducted himself in such a way as to frustrate the order or aid and abet the mother in avoiding compliance with the return order, and the judge was so satisfied on each of those matters. 51.Johnson J had considered the terms of the order as both counsel had pointed out to him that the return order did not require the mother to perform a particular act in a particular time, but was thus, on its face, not seemed to be an order within the provision of RSC Ord 45 r 5 which referred to ‘a person required by a judgment or order to do act within a time specified in the judgment or order…’[14]. But as Johnson J pointed out, the return order was made in accordance with Article 12 of the Convention, and although it was not directed to the mother, it did not require the mother to return the children, and neither did it specify a time within which she should do so, he was satisfied that it was plain what that order required to be done with the children. 52.What can be gathered from Re S is that even though the return order was not directed at any particular person, nor is a deadline stipulated, the court would consider whether it was plain to the alleged contemnor as to what was required to be done with the children under the return order and in particular would consider the following:
53.Mr Marwah has submitted that in the present case, D herself has clearly understood the Return Order to impose on her a mandatory obligation to return the ward AAR to this jurisdiction, as seen in her affidavit of 16 May 2022:
54.In any event, in D’s own Reply Submissions, D has said that the Return Order imposes an obligation on D and on P equally. D then went on to submit that the terms could by no means be interpreted as mandatory as she was only just one of the possible executors of the Return Order, and that she had every lawful right to expect for the Return Order to be executed by P and not by her. 55.In my view, the Return Order is clear in that it imposes a mandatory obligation not only on D but equally on P to return AAR to this jurisdiction. That paragraph 3 of the Return Order is directed at not only D but also P does not mean that it is not a mandatory order, nor does it mean that there is no mandatory obligation on D to return AAR to the jurisdiction. 56.The Return Order states clearly that AAR continues to be a ward of this Court. Even though the Return Order was not specified to have been made under Article 12 of the Convention, these proceedings were issued not only under Order 90 of the RHC for wardship, but also under the Child Abduction and Custody Ordinance, Cap 512, which give effect to certain provisions of the Convention, including returning a child wrongfully removed to his/her place of habitual residence. Unlike Re S, the Return Order is clear in that it has specifically stipulated a deadline for the return of AAR. Paragraph 4 of the Return Order has specifically provided that D (not P) has to surrender all AAR’s travel documents within 24 hours of AAR returning to Hong Kong, and also paragraph 8 of the Return Order specifically restrains D (not P) by herself, her servants or agents from taking AAR out of the jurisdiction of the Court, or causing or permitting AAR to go out of jurisdiction. The Return Order is endorsed with a penal notice. 57.Having considered the above, on the Preliminary Issue, I have come to the view that the Return Order does impose a mandatory obligation on D to return AAR to Hong Kong within the stipulated deadline. CONCLUSION 58.In light of all said and having considered the authorities, in my view, sequestration is in principle an appropriate tool to be used in the present proceedings to secure the return of AAR to the jurisdiction of this Court. As said above, the Return Order does impose a mandatory obligation on D to return AAR to Hong Kong within the stipulated deadline. Thus, I find that stage one of the Three Stage Test for civil contempt has been fulfilled. 59.The remaining two stages of the Three Stage Test will be determined at the resumed substantive hearing and for the sake of D, I will set out again the remaining stages, which are:
60.At the Hearing, I have directed that the Leave Summons be adjourned to a date to be fixed with 2 hours reserved after this Court’s determination of the Preliminary Issue. The parties should inform the Court in writing within the next 7 days as to whether any other directions are necessary prior to fixing date. 61.D should seek legal advice immediately as to any directions she may wish to seek from this Court, including whether she elects to give oral evidence and be cross examined at the substantive hearing, whether she wishes to call any witnesses to give evidence on her behalf, and also whether she wants to cross examine P. If D elects not to give oral evidence and be cross-examined, her evidence in her affidavits will not be admitted unless otherwise directed. D should also seek legal advice as to the consequences of sequestration of her assets, in the event that leave is granted for P to issue a writ of sequestration. 62.Costs on the determination of the Preliminary Issue are reserved.
Mr Shaphan Marwah, instructed by Oldham, Li & Nie, for the Plaintiff The Defendant, unrepresented, acting in person [1] Video Conferencing Facilities [2] B:345 [3] The Rules of the High Court, Cap 4A, Laws of Hong Kong [4] Hong Kong Civil Procedure, Vol 1, 2022 Ed [5] See also 46/5/3, Hong Kong Civil Procedure Vol 1, 2022 [6] See 46/5/1 [7] See Holding in the Headnote [8] Between G and H, at pg 98, and at A, pg 99 [9] At E-F, pg 99, Richardson v Richardson [10] The equivalent provision in Hong Kong is section 25A of our High Court Ordinance, Cap 4 [11] A:21-24 [12] See item 1, pg 1 of D’s Reply Submissions [13] At pg 859 [14] Similar to our Order 45 rule 5, RHC [15] At A:77 [16] At A:81 |
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