Tklk v. Wkj
Read the full judgment text of FCMP 38/2007 on BabelCite. This FCMP judgment was delivered on 9 September 2024.
1. This a hearing of the Applicant (“A”) ‘s Committal Summons filed on 31 March 2023 (A/41-62) to commit the Respondent (“R”) to prison for his contempt in breaching court orders on payment of minors’ maintenance and disclosure of residential address.
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FCMP 38/2007 [2024] HKFC 164 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 38 OF 2007 ------------------------
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----------------------- JUDGMENT ------------------------ Applications 1.This a hearing of the Applicant (“A”) ‘s Committal Summons filed on 31 March 2023 (A/41-62) to commit the Respondent (“R”) to prison for his contempt in breaching court orders on payment of minors’ maintenance and disclosure of residential address. 2.Despite the fact that the committal proceedings were conducted in open court, in view of the fact that minors’ interests are involved, I have decided to anonymise the parties’ identity in this judgment, which was delivered in open court. Preliminary Procedural Matters 3.Before I consider paragraph 1(1) of the Committal Summons, which is the main application to be determined by this court, it is necessary for me to comment on some preliminary procedural matters. 4.It is noted that in the marginal notes of the Committal Summons (A/41), the following rules and jurisdictional basis are cited:
5.The above reference to Rule 90 of the Matrimonial Causes Rules, Cap. 179A (“MCR”) cannot be right. In the present case, the underlying proceedings is an Originating Summons issued pursuant to Section 6 of the Parent and Child Ordinance, Cap.429 (“PCO”) and Section 10(2) of the Guardianship of Minors Ordinance, Cap. 13 (“GMO”). Under Practice Direction 15.12, these are categorized as family proceedings as opposed to the more common matrimonial proceedings which are based on the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”). In the circumstances, if a judgment creditor wants to take out proceedings to enforce a maintenance order in family proceedings, he should take out a judgment summons under O.90A of the Rules of District Court, Cap. 336H (“RDC”), which are in similar terms to rr. 87-88 of MCR, but in any event not under r.90 of MCR. 6.If one should read r. 90 of MCR, it only states that an application for committal shall be made by summons; the provisions of O.52, r.6 of the Rules of High Court, Cap. 4A (“RHC”) requiring the hearing to be conducted in open court applies; and about the discharge of a committal order. It is not a provision governing how the court should exercise its power on committing a judgment debtor for non-payment of maintenance in family proceedings. Background and Chronology 7.A is now aged 47. R is aged 58, a practising solicitor by occupation. When they met in 2003, A was single whilst R was already a married man. From their romantic relationship, a pair of twins were born, who are now aged 17. In 2007, A issued proceedings claiming maintenance for the children from R. A long and winding series of legal battles were then fought resulting in various orders from the court. The following chronology of the more relevant events are set out for a better understanding of case development since 2008:
8.From the above chronology, one could see that R defaulted in maintenance payment starting February 2019, firstly by paying $28,000 instead of $50,000 per month, and later by paying $16,500 per month starting June 2020, and finally with nil payment since 1 September 2020. He was also ordered to disclose his residential address on 24 August 2021, with which he has failed to comply even up to date. 9.As a result of R’s default, A issued a judgment summons which was heard by Deputy Judge Elaine Liu (as HH Judge Elaine Liu then was) on 10 January 2022 and 6 April 2022 as an Examination Summons. At the end of examination, the parties signed a consent summons in which, inter alia, R acknowledged the amount of judgment debt at $1,851,120 inclusive of interest but excluding costs as at 6 April 2022. 10.On 31 March 2023, A issued the present Committal Summons applying for a committal order against R. The Legal Principles 11.In YBL v LWC [1], Lam VP (as Lam PJ then was) conducted a very detailed analysis of the enforcement of maintenance orders in family cases by way of judgment summons pursuant to r.87 of MCR. It was held that the then practice of combining the examination process and committal process was incompatible with the protection of a judgment debtor’s fundamental rights under the Hong Kong Bill of Rights (“HKBoR”). Remedial interpretation of r.87 was adopted in segregating the 2 processes. Application under r.87 (2) of MCR would be read as confining to the examination process only. In respect of the committal process, subject to specific provisions to the contrary in rr. 87 and 88 of MCR, the procedure under O.52 of RHC should apply. From then on, any application under a Committal Summons will be subject to the strict requirements of O.52 RHC. 12.At §17 of YBL, it was also stated that:
13.To complete the discussion, O.49B r.1B states that:
14.Therefore, it is now abundantly clear that as far as non-payment of a judgment debt is concerned, before a court decides to exercise its discretion to commit a judgment debtor to a term of imprisonment, it has to be satisfied beyond reasonable doubt that the judgment debtor:
15.Although the principles as laid down in YBL were concerned with judgment summons procedure under r.87 of MCR, in view of their similarities, they are equally applicable to judgment summons procedure under O.90A of RDC: PDSL 10.2, §§15-16. 16.I will now proceed to consider the Committal Summons by reference to the above principles. Issues to be determined 17.In my view, the following issues need to be determined by this court:
The Evidence of A 18.A has filed 2 affirmations, and the more relevant one is her 2nd Affirmation filed on 19 May 2023 (A/82-110). In the said affirmation, A gave some details of the case’s background. She mentioned despite the fact that some of the orders were not endorsed with a penal notice, R as a solicitor must be aware of the serious consequences in breaching a court order. In respect of the 2016 Order and 2017 Order, she repeated some of the findings of HH Judge Bruno Chan’s Judgements and Orders and concluded at paragraph 26 therein that:
She further testified that R must have reduced the maintenance payment by his own intentional act/omission to pay the full amount of maintenance. 19.As to the breach of the 2020 Order, A again referred to the court’s judgment in saying that R’s disobedience of the 2020 Order must have been an intentional act/omission to pay the maintenance stipulated, and was not accidental, casual or unintentional. 20.For the 2021 Order, A testified that despite her various requests and the court’s order, R still refused to disclose his residential address and it was an intentional act on the part of R. 21.At the end of the affirmation, A stated that R’s failure to pay maintenance still continues and it is clear that R has the means to pay, and has refused and/or neglected to pay. She said she has discharged the burden of proof beyond reasonable doubt and asked for relief to be granted as per the Committal Summons. 22.A was cross-examined by R at trial but in my view, nothing special turns out from the said examination. The Evidence of R 23.R decided not to give evidence despite the warning that the court may not place any weight on his affirmation or other evidence filed. Preliminary Points for Discussion 24.Before I turn to the issues, I propose to deal with some preliminary points in respect of the Committal Summons. Hopefully with the preliminary rulings, we could get some of the minor matters out of the way before we enter into a discussion of the more relevant issues. The Committal Summons 25.The starting point is to look at the Committal Summons, which contains 2 paragraphs. The main application is in paragraph 1 (paragraph 2 just asks for dispensation of personal service), which contains 3 sub-paragraphs:
26.My first observation is that the relief as prayed in paragraph 1(2) of the summons must fail. The said sub-paragraph asks this court to order R to pay a sum of HK$1,851,120 and the provision of his residential address. However, this is the hearing of a Committal Summons and the sole consideration is whether R is in contempt of court orders, and if so, whether he should be committed to a term of imprisonment. This is not a proper forum for A to apply for a monetary order or a mandatory order for disclosure of residential address as in paragraph 1(2) of the summons. After all, if the basis for the committal proceeding is that R has failed to pay any sum of money, or that he has failed to disclose his residential address as previously ordered, there is no point in ordering him to pay or disclose for a second time. 27.Paragraph 1(2) of the Committal Summons should not be asked for in a Committal Summons and is therefore dismissed. 28.The main applications are therefore restricted to paragraph 1(1) of the Committal Summons in which A asked for a committal order against R for his intentional breach of 4 court orders, namely:
with full particulars of breaches set out in the schedule attached to the summons. 29.However, if one looks at the orders previously made, there had never been any order made on 24 August 2022. Instead, there was an order made on 24 August 2021 in which R was ordered, inter alia, to provide his residential address. Despite such error, I note that the correct date of the order (i.e. 24 August 2021) has already been stated in the schedule itself and its reference as the “2021 Order” has also been repeated a number of times therein. There is no likelihood that anyone would be mistaken about the date of that order. In the circumstances, I am minded to exercise my discretion to waive such irregularity. Personal Service and Penal Notice 30.At the hearing, sometime has been spent on submissions concerning personal service of and penal notice endorsement on the relevant orders. This is mainly due to the fact that those requirements might not have been fulfilled by A after the making of the 2020 Order and 2021 Order, at which times she was acting in person. 31.Under O.45 r.7 (7) of RDC, the court has power to dispense with service of the order. This was confirmed in Kao, Lee & Yip v. Koo Hoi Yan[2], when Brennan NPJ held that at §69 that:
32.In the context of the present case, there is nothing to suggest that R was not aware of the 2020 Order and 2021 Order. There were quite a few hearings before and after those orders and R had never contended that he had no notice of any of those orders. After all, it was R who refused to disclose his residential address (even up to now) which makes personal service extremely difficult, if not totally impossible, especially when A was acting in person. In the circumstances, I am satisfied that R was well aware of the 2020 Order and 2021 Order during all material times, and I am prepared to exercise my discretion to dispense with personal service of the 2020 order and 2021 Order. 33.After dispensation of personal service of the 2020 Order and 2021 Order, the endorsement of penal notice simply falls away and is no longer a relevant issue. In Axa China Region Insurance Co. Ltd. V. Li Yu Ping, Ellen [3], Stock JA held at §37 that:
Was R in breach of the 2016 Order, 2017 Order, 2020 Order and 2021 Order? 2016 Order and 2017 Order 34.As can be seen from the chronology, Judge Bruno Chan made an order for R to pay $50,000 per month as maintenance in the 2016 Order. His Honour also made the 2017 Order ordering the $50,000 maintenance (payable under the 2016 Order) to continue together with the payment of an additional lump sum of $160,000. Therefore, it can be said that the 2017 Order has already superseded the 2016 Order and it is superfluous in still arguing whether the 2016 Order has been breached. 35.For the 2017 Order, there is no dispute that R started to default in the payment of maintenance starting from February 2019. In other words, the last full maintenance he has paid was for $50,000 in January 2019. By this court’s judgment, i.e. the 2020 Order, R’s liability to pay monthly maintenance was increased to $52,000 per month which was dated back to February 2019. In other words, the 2020 Order has again superseded the 2017 Order as from February 2019, meaning that any default starting from February 2019 has to rely on the 2020 Order. There is no evidence that R has not complied with the maintenance payment before February 2019 and the lump sum payment of $160,000. Therefore, I am not satisfied that R was in breach of both the 2016 Order and 2017 Order. 2020 Order 36.In the 2020 Order, this court ordered R to pay $52,000 per month as maintenance ($26,000 per minor) and a lump sum of $100,000. The $52,000 maintenance order was dated back to February 2019. There is no dispute that R defaulted in February 2019 by just paying $28,000 per month, which was further reduced to $16,500 per month in June 2020. R further defaulted by reducing the maintenance to nil in September 2020. After the hearing of the Examination Summons, the total amount of judgment debt was $1,851,120 calculated up to 6 April 2022. R was clearly in breach of the 2020 Order. 2021 Order 37.Under the 2021 Order, R was ordered to provide his residential address. There is no dispute that R has not provided his residential address and so he must be in breach of the 2021 Order. Non-payment of Maintenance 38.The next issue is whether A succeeds in proving beyond reasonable doubt that:
39.Mr. Jeffrey Li of counsel represented A at the hearing. Counsel submitted that A would rely on a “basket of factors” to prove R’s ability to pay. He referred to those factors as “puzzles” in his written submissions and there were a total of 7 such puzzles. He submitted that the reliance on such a “basket of factors” is sufficient to establish an only irresistible inference of R’s ability to pay, and thus satisfying the criminal standard of proof. I was referred to a number of cases, and especially in Jeanny Helena Franslay v Fung Ariel Mei Shan[4] whereat G Lam J (as G Lam JA then was) said at §37(8):
40.Mr. Li listed out 7 “puzzles” in his written closing submissions trying to establish that the only irresistible inference to be drawn against R was either (i) he is able to satisfy the judgment, wholly or partly; or (ii) he has disposed of assets with a view to avoiding satisfaction of the judgment or the liability wholly or partly. The 7 “puzzles” are:
41.It is regrettable to note that all these “puzzles” were not mentioned in the schedule attached to the Committal Summons, except Puzzle 1 on adverse inferences being previously drawn. Again, in A’s supporting affirmation (A’s 2nd Affirmation), A repeated the rulings in the court’s 2020 Judgment (paragraphs 98, 108-109 and 111-112) on adverse inferences being previously drawn trying to prove R’s ability to pay (A/99-101). A did testify on R’s failing to provide his residential address in her affirmation, but that was for proving the breach of the 2021 Order, but not for the 2020 Order. Apart from these, nothing on the other “puzzles” was mentioned in A’s supporting affirmation. 42.In order to apply for leave to commence committal proceedings, a judgment creditor has to file a statement setting out certain information, and in particular, the grounds on which committal is sought: O.52, r.2 (2) RDC. After leave being granted, the originating summons (which is the Committal Summons in the present case) shall state the grounds in respect of which leave has been granted: O.52, r.3 RDC. The contents of this statement and the grounds being relied on is particularly important as it will be treated in a similar manner as an indictment in criminal proceedings having regard to the penal nature of the sanctions for contempt. A judgment creditor is not allowed to rely on any grounds not stated in the Committal Summons: Paragraph 52/2/6 of Hong Kong Civil Procedure 2024, page 1171. In the same paragraph, it was stated that, inter alia, the following should be included in the statement:
43.A judgment debtor’s right to be informed was also discussed in YBL, supra at §38 therein:
44.At §44 of the same judgment, the Court of Appeal also stated:
45.In my view, A has failed to provide sufficient particulars in the statement and in the Committal Summons on the “puzzles” that she was going to rely on, except puzzle 1. R has never been warned that A would rely on the cumulating effects of the facts stated in those “puzzles” (other than puzzle 1) to show that he has the ability to pay or that he has disposed of assets in order to avoid the judgment. The first time that he was made aware of the intended use of the cumulating effects of these “puzzles” was in Mr. Li’s closing submissions at which time all evidence has already been filed. 46.In the circumstances, it would not be fair to allow A to rely on all the “puzzles”, except puzzle 1 to try to prove R’s contempt. Therefore, I will only consider Puzzle 1 to see if A has successfully discharged her burden of proof up to the required standard. Puzzle 1: Adverse inferences drawn against R 47.As submitted by Mr. Li, R has failed to provide any real financial disclosure since these proceedings, especially since 2016. As a result, the court has to resort to drawing adverse inferences to find R’s ability to pay. Based on those inferences, the court found in the 2016 Order, 2017 Order and 2020 Order that R was having such ability to pay and thus ordering him to pay $50,000 or $52,000 per month as the minors’ maintenance. 48.It was stated in §47 of the schedule attached to the Committal Summons (A/58) that R’s non-payment of maintenance must have been intentional: “47. Given [R] was found by the Court to have the means to pay, and had notice of the 2020 Judgment/Order, as well as the Learned Judge’s findings above, [R] ‘s breach thereto must have been intentional.” My views 49.There were in fact 2 sets of adverse inferences being drawn against R, one by Judge Bruno Chan in the 2016 Judgment, and the other one by this court in the 2020 Judgment. Both sets of adverse inferences were drawn during the trial of the parties’ respective application for variation of maintenance order. 2016 Adverse Inference 50.As far as the adverse inference being drawn in the 2016 Judgment, Judge Bruno Chan was certainly not satisfied with the financial disclosures made by R and said at paragraphs 53 and 63 of the Judgment:
51.It is fair to say that the court was rather critical of R’s lack of full and frank disclosure of his financial affairs back in 2016 and adverse inference was therefore drawn on his ability to pay $50,000 per month at that time, i.e. in October 2016. But one has to bear in mind that we are now considering whether R had the ability to pay at the time of default, i.e. February 2019 and thereafter. More than 2 years have lapsed and it is too far-fetched to say that the only adverse inference that could be drawn against R is that he must have ability to pay in February 2019 and thereafter simply by reference to the adverse inference drawn back in October 2016. 2020 Adverse Inference 52.The next issue is whether A could rely on the adverse inferences drawn and the findings of the court in the 2020 Judgment in discharging her burden of proof on R’s ability to pay the judgment debt as at February 2019 or thereafter. Useful reference could be made to YBL, supra at §§97 and 134 therein:
53.By reference to the above rulings, for A to discharge her burden of proof on the criminal standard, she has to produce further evidence, or at least repeat the underlying evidence at the committal hearing and argue that such evidence is sufficient to prove beyond reasonable doubt that R did have the ability to pay at the relevant date. A cannot simply rely on the adverse inferences previously drawn or the findings of the court at the original hearing which were reached by adopting the civil standard of proof. 54.Under these circumstances, I cannot be satisfied beyond reasonable doubt that (i) R has the ability to pay the judgment debt or (ii) he has disposed his assets to avoid the 2020 Order, by simply relying on puzzle 1. A’s committal proceeding against R in respect of the 2020 Order fails. Breach of 2021 Order for the provision of residential address 55.The breach of a court order amounts to civil contempt. The burden is on the applicant to prove the respondent’s contempt beyond reasonable doubt. As stated by DHCJ H Au-Yeung (as H Au-Yeung J then was) in Chan Ka Ho Abraham v. Tung Yin Ling Cora[5] that in considering such an application, the court adopts a 3-stage approach:
56.In the present case, the 2021 Order requires R to provide his residential address. The reasons for making such an order could be found §§36-41 of the 2021 Judgment (A/273-275) and I do not propose to repeat them here. There is little dispute that R did breach that order and such breach continues even up to date. 57.At certain stages, R did mention about A going to his work place causing a big scene, vaguely suggesting that the non-disclosure of residential address might be necessary to protect people connected to him. There is no substance in this contention, if there is indeed one. First of all, R did not give evidence to try to convince this court that was in deed the case. Secondly, if A is really going to cause nuisance to R at his residential address, he is always entitled to come to court for injunctive reliefs. As a matter of fact, this was what happened in around September 2020, when A went to R’s work place causing a scene. In order to stop A, an interim injunction was granted by this court on 23 September 2020 against her on the following terms:
With such injunction in place, A has refrained from going to R’s work place again. 58.Furthermore, the provision of a person’s residential address is a statutory requirement in civil proceedings. For example, under O.41 RDC which governs the form of affidavit to be filed in court, it was provided under r.1(4) that:
59.Similar requirements are also found in matrimonial proceedings and family proceedings and a party is required to provide his residential address when his Form E is filed. 60.There is little dispute that R did breach the 2021 Order in failing to disclose his residential address. The more important issue is whether such breach was intentional. The 2021 Order on disclosure of R’s residential address was very clear and straight forward. There was no attempt by R to comply with the order at all. There was no reasonable explanation by R on why that order could not be complied with. R did attend court hearing multiple times after the 2021 Order and he simply refused to provide his residential address, even when asked in court. I have no doubt in my mind that the breach must be deliberate and intentional. In this regard, I am satisfied beyond reasonable doubt that R was and still is in contempt of the 2021 Order by refusing to provide his residential address. Summary of Findings 61.Based on the above discussion, these are the main findings of the court:
Orders 62.Based on the above findings, I am not satisfied beyond reasonable doubt that R was guilty of contempt in respect of the 2020 Order. On the other hand, I am satisfied beyond reasonable doubt that R was guilty of contempt in respect of the 2021 Order in not providing his residential address as ordered. Penalty and Costs 63.I now proceed to deal with the issues of penalty and costs.
Representation: Mr. Jeffrey Li, Barrister-at-law, instructed by Messrs. Chiu & Co., solicitors for the Applicant The Respondent acting in person [1] [2017] HKCU 11 [2] (2009) 12 HKCFAR 830 [3] [2002] 3 HKC 339 [5] [2023] HKCFI 1170 at paragraphs 32-33 |
Cases cited in this judgment
Further hearings and rulings under FCMP 38/2007