Ckc v. Shth
Read the full judgment text of FCMP 262/2015 on BabelCite. This FCMP judgment was delivered on 24 September 2024.
1. This case is sad and disturbing, especially to those who care about the well-being and protection of the Minor. In defiance of two court orders, the Respondent Mother (“ Mother ”) went hiding with the Minor for 8 years, depriving the Minor of formal education and a psychological environment for her healthy development since the age of 4.
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FCMP 262 / 2015 [2024] HKFC 180 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FAMILY COURT MISCELLANEOUS PROCEEDINGS NO. 262 OF 2015 ----------------------------
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___________________________ DECISION ___________________________ A. Introduction 1.This case is sad and disturbing, especially to those who care about the well-being and protection of the Minor. In defiance of two court orders, the Respondent Mother (“Mother”) went hiding with the Minor for 8 years, depriving the Minor of formal education and a psychological environment for her healthy development since the age of 4. 2.On 3 May 2024, I adjourned the hearing of Mother’s mitigation on the Committal Order made on 15 January 2016 to today after her absence on 5 previous occasions since September 2023, and directed that the court will proceed to deal with sentencing in this hearing even if Mother continues to be absent. The background and reasons are set out in my decision dated 3 May 2024 (“Adjournment Decision”)[1]. For ease of reference, I adopt the same abbreviations used in the Adjournment Decision unless otherwise stated herein. 3.Mother is again absent today. About 30 minutes before the hearing, she lodged or caused to lodge into the Registry a document of about 30 pages titled “請假信” (“Document”). The Document referred to annexes but these annexes are not attached to the Document. 4.In the beginning of the Document, there was the sentence similar to the one in previous letters[2]: “由於近日遭受連番人權迫害和思念愛女心痛泣淚之故，血壓心跳極不穩定並勞傷成病頗重，身體極差，未能出席今天的聆訊.” There was no medical certificate adduced nor diagnosis giving the reason for her inability to attend the hearing. I do not see any reason to further adjourn this hearing. B. The Background and Events leading to the Committal Order 5.The background of the parties and the events leading to the Committal Order can be found in the Judgment of DDJ A. Yim (as she then was) dated 15 January 2016. 6.In summary, the Applicant father (“Father”) and Mother met each other in a New Year Eve party in December 2009 when they were aged 39 and 34 respectively. Both parties were gainfully employed at that time. They soon developed an intimate relationship but they did not get married. Mother found herself pregnant in February 2010. They decided to raise their child together. Mother moved into Father’s home in around March 2010. The Minor was born in December 2010. 7.Their relationship did not last long. They had frequent domestic disputes which had escalated to physical force, and finally the parties resorted to the police for assistance. 8.Father first moved out temporarily in August 2011. Mother then decided to separate with Father. She moved into a rented flat with the Minor in September 2011, and employed a domestic helper to take care of the Minor. 9.Initially, Father was able to have access to the Minor every 3 to 4 weeks in the presence of Mother. In around mid-2012, Mother refused Father’s access to the Minor. In between January 2013 to July 2013, Father managed to have sporadic access to the Minor with the assistance of the domestic helper and the maternal grandmother. When Mother discovered the sporadic access in July 2013, she became very angry, stopped the access and ceased contact with the maternal grandmother. 10.Father took out an Originating Summons in August 2013 seeking defined access and a non-removal order. 11.With the assistance of social welfare officer, two accesses with the Minor were arranged on 26 November 2013 and 6 December 2013 before the first social investigation report was prepared. The access on 6 December 2013 was Father’s last access to the Minor. That access took place in a park. The Minor was accompanied by her maternal aunt. The Minor was observed to have played joyfully with Father. 12.At the hearing on 19 December 2013, DDJ A. Yim accepted the recommendation in the social investigation report and granted interim defined access to Father. 13.Mother sought leave to appeal against the 19 December 2013 order and asked for a stay of execution of the order. Her application was dismissed with costs in February 2014. 14.Mother refused to have interview with the Social Welfare Officers and continued to deny Father’s access to the Child. 15.On 15 January 2014, Mother’s solicitor took out a Summons applying for leave to cease to act for Mother. The Summons was opposed. On 28 January 2014, the court refused to grant the leave. Two days later, the solicitors took out another cease to act application and successfully obtained leave to cease acting for Mother. 16.Mother and Father were present at the hearing on 9 April 2014 when the case was set down for trial. Father was granted interim defined access to the Child (“April Order”). Penal notice was endorsed. The court had made clear to Mother that any act of alienation would put her care and control of the Minor at risk. The Official Solicitor was requested to act for the Minor. 17.Mother continued her refusal to have contact with the officers and her denial of Father’s access to the Minor. 18.On 17 June 2014, Father took out a Summons seeking sole care and control of the Minor. Mother was absent from the hearings. Upon various undertakings given by Father, the court made an order on 7 August 2014 (“August Order”) under which Father was granted the custody, care and control of the Minor and Mother has weekly defined supervised access, Mother was required to hand over the Minor to Father on or before 1 September 2014 in the presence of the social welfare officer. Penal notice was endorsed. 19.Mother had applied and was provided with the audio recordings of the above hearings. She then took out two summonses for leave to appeal and a stay of execution of the August Order. She did not turn up at the hearings fixed for these summonses. These summonses were dismissed in September and December 2014 respectively. 20.Mother did not comply with the April Order nor the August Order. She went hiding with the Minor and did not appear in these proceedings. A warrant of arrest was issued on 26 September 2014. 21.Father applied for leave to issue committal proceedings in 2014. Father made a further application for committal proceedings against Mother in October 2015, which was supported by the Official Solicitor. 22.DDJ A. Yim found that Mother was fully aware of the April Order and August Order. She had been in breach of these orders wilfully. She attempted to leave Hong Kong with the Minor on 1 September 2014 without success. She removed the Minor from her usual kindergarten and ceased contact with her extended family members. Father, Mother’s extended family members, the Official Solicitor (acting for the Minor) and the social welfare officers, all failed to get in touch with Mother and the Minor. 23.DDJ A. Yim made the Committal Order, issued a warrant of arrest and committal against Mother. The question of penalty was adjourned. 24.Mother and the Minor could not be found for 8 years until 28 October 2022 when they were finally located by the police. C. Development after Mother and the Minor were located in October 2022 25.Mother was brought before this court after she was found in October 2022. An urgent hearing was held. Father’s legal representative and the Official Solicitor also appeared at the hearing. This court was informed that the Minor was sent to public hospital for physical and psychological examination. 26.After hearing the parties, this court adjourned the sentencing of the Committal Order after the welfare of the Minor was dealt with and directed that a social investigation report on the condition of the Minor be prepared and lodged into the court. 27.According to the social investigation report dated 2 May 2023 (“SIR”):
28.At the hearing on 29 June 2023, this court:
29.Mother was present at the hearing on 29 June 2023 when I directed all parties to file submissions on sentencing in the contempt proceedings. The hearing was adjourned to 26 September 2023. 30.Father and the Official Solicitor have lodged their written submissions pursuant to the direction of the court. Mother has not. 31.I had adjourned 6 previous hearings. The details of these adjourned hearings are set out in paragraphs 4 to 20 of the Adjournment Decision. In short, Mother was absent from 5 of these hearings. 32.Generous indulgence and more than enough warnings have been given to Mother. I shall proceed to consider the sentence. D. Decision Relevant Legal Principles 33.There are a wealth of legal authorities acknowledging that court orders are made to be obeyed and a contempt of court by wilful disobedience of court order is a serious matter: RACP Pharmaceutical Holdings Ltd v Li Xiaobo[3]; Kao Lee & Yip v Donald Koo Hoi Yan[4]; Arboit v Koo Siu Ying (No 2)[5]; Law Lai Lan v Tamang Prem Chandr[6]. 34.The prime consideration in sentencing contempt is to signal the importance of demonstrating to all litigants that orders of the court are to be obeyed. It serves dual functions, coercive and punitive. The court shall strike a balance between these two objectives, viz: (1) to punish the conduct in defiance of the court’s order and (2) to serve a coercive function by holding out the threat of future punishment as a means of securing the protection which the order was primarily there to do: Law Lai Lan v Tamang Prem Chandr; Willwin Development (Asia) Company Limited v Wei Ying and others[7]. 35.As Jackson LJ pointed out in JSC BTA Bank v Solodchenko (No. 2)[8], the punishment on the contemnor serves the public interest of upholding the administration of justice:
36.The court has a wide discretion under common law and the statute (Order 52 of the Rules of the High Court and the Rules of the District Court) to decide the sanction on a contempt of court ranges from a fine to a term of imprisonment (including suspended sentence): Secretary for Justice v. Chin Po Fun[9], Morris v Crown Office[10]. 37.The legal principles on sentencing for contempt of court have been summarised in Arboit v Koo Siu Ying (No 2):
38.The Official Solicitor has referred the court to the following English cases on contempt of court in child abduction cases.
39.In considering these English cases, I bear in mind the following differences from the present context:
40.The Applicant cited, for references, Hong Kong cases where the respective respondents were committed to a term of 4 to 8 weeks imprisonment (depending on the gravity) for deliberate failure to comply with court orders on the filing of Form E and/or answer to questionnaires and/or payment of maintenance:邱及李[14]，LYY v WYW[15], 蘇及陳[16]; 葉及陳[17]；劉及徐[18]. 41.I bear in mind that the subject matter of the above Hong Kong cases relates to financial matters and this case is not. 42.With the above cases and principles in mind, I turn to the circumstances of this case. Nature and Extent of the Breach 43.Access to a parent is the basic right of the child but not the right of the parents. The purpose of having access to a parent is to enable the child to keep in contact with him or her which is essential to the child’s emotional and psychological growth in the long term: H v N[19]. 44.As acknowledged by Hartmann JA (as he then was) in PD v KWW[20], the long-term best interests of a child are invariably best protected if, despite the breakdown of the marital union, both parents are able to continue to play an equal role in making important decisions that will determine the child’s upbringing. 45.Despite the discord between the parents, a child should have the care and guidance of both parents. 46.Mother has no right to deprive the Minor of her basic right to see and meet Father. It was because of Mother’s breach, the Minor was forced to live her childhood in hiding for 8 years[21]. Since Mother withdrew the Minor from kindergarten in 2014, the Minor could not receive any formal education. Mother cut off almost all the social ties of the Minor, including the contact with Mother’s extended family members. This caused significant physical and psychological harm to the Minor. The contempt was contumacious and intentional 47.Mother’s contempt was contumacious and intentional. Mother has demonstrated no intention to comply with the April Order and the August Order and has hid the Minor deliberately. 48.After Mother and the Minor were located by the police, Mother remained to be very uncooperative, sometimes obstructive. She showed no contrition for her conduct. Even worse is her continual influence over the Minor, causing the Minor’s strong resistance against Father and others. The Minor thought that Father is the culprit who caused her suffering in the past 8 years, including the inability to attend school in the past years and her being placed in residential care. Sadly, Mother is the author of her suffering. Prejudice Against Father and the Minor 49.The prejudice and harm caused by Mother to Father and the Minor are grave and are very difficult (if not impossible) to remedy. 50.The contempt cannot be purged even if Mother is now prepared to (which she is not) comply with the court order by handing over the Minor to the care and control of Father. 51.According to the social welfare report dated 9 December 2013[22], the Minor was happy when playing with Father in the park on 6 December 2013. The Minor conversed with Father, held Father’s hands, hugged him, and handed him tissue papers to wipe his hands. 52.Mother has effectively destroyed the relationship between Father and the Minor. She cut off all the contact between Father and the Minor in the past eight years, and led the Minor to believe that Father is the culprit. 53.The Minor spent her childhood in isolation from the society in the past 8 years. The gravity of the psychological and physical damages done by Mother to the Minor cannot be understated. Aggravating Factors 54.During the MDCC investigation, Mother was found to be very uncooperative. She refused to give consent for the Minor to be prescribed with vitamin D for treating her Rickets. She influenced (if not instructed) the Minor to be uncooperative with the medical staffs. Since then, the Minor has been making troubles in the residential ward. It is troubling to note that because of Mother’s influence over the Minor, the Minor lost the chance to cure her deformity in her leg despite strong advice by the doctor that it was the prime time for attaining optimal result. 55.DSW is of the view that Mother failed to reflect on her uncooperative attitude and the long-term adverse impact on the Minor’s psychological and physical conditions as a result of her abuse. Mother put the blame on Father for initiating these proceedings. 56.She shows no regret nor remorse. She remains to be uncooperative and at times disruptive in advancing the welfare of the Minor. 57.Mother caused the delay of the present proceedings. She was fully aware of the directions given by this court. She was repeatedly reminded of the serious consequences of the proceedings and she shall seek independent legal advice. However, she chose to apply for legal aid shortly before the hearing and take advantage of the statutory stay. She was absent from the subsequent 5 court hearings causing unnecessary delay to this matter. Mitigating Factors 58.Mother has not made any submissions on mitigation despite she had many chances to do so. At previous hearings attended by her, Mother attempted to justify her breach by alleging that Father is a dangerous person who suffered from bipolar disorder. She said that Father was prescribed with medications for psychiatric treatment, and was involved in triad society with criminal record. In the Document, Mother repeated similar allegations. Father denied these allegations. 59.According to the court’s records, these allegations have been raised by Mother and considered by the court before the August Order was made.
60.These allegations about Father’s background had been considered before the making of the August Order and the Committal Order. There was no appeal against the August Order and the Committal Order. In any event, these are not reasons for Mother to take the matter in her own hands in breach of the court orders. These are not reasons for her cutting off the Minor’s ties with Father, nor her denying the Minor from contacting her father and an environment for healthy development of her well-being. There was also no evidence that Father had caused harm to the Minor. 61.The Document stated for the first time many assertions and accusations, including events happened after the Minor was located. This is obviously not the right way to submit her mitigation. Mother had not indicated that she intended to use the content in the Document as her mitigation. 62.Out of abundance of indulgence to Mother and in all fairness, I have considered the Document despite Mother has chosen to lodge it less than 30 minutes before today’s hearing and does not come forth to stand by the information in the Document. The Document contains irrelevant materials, for example, it refers to an intended movie based on this case. I refrain from commenting on this save to note that some of the contents do not accord with the court records and some of the matters stated are unknown to this court. The alleged events happened after the Minor was located do not justify or mitigate the wrongs done by Mother in her previous breaches of the two orders. 63.It appears that Mother has failed to see that today’s hearing was a result of her deliberate defiance of court orders that unfortunately caused the plight of the Minor. Conclusion 64.Mother was guilty of a serious contempt of court for breach of the April Order and the August Order for a long duration of 8 years. She only stopped hiding the Minor upon her arrest by the police on 28 October 2022. Her wilful obstinacy and defiance had tragically caused egregious harm to the Minor and Father. Mother showed no reflection of her conduct. Her persistent obstruction and uncooperativeness, worse still, her influence over the Minor to adopt an obstructive attitude, are exceedingly aggravating. I do not see any remorse nor matters that mitigate her guilt. The sanction shall proportionately reflect the court’s disapproval of Mother’s conduct and serves as an effective deterrence for a breach of court order. 65.I am satisfied that an immediate sentence of imprisonment is justified on the facts of this case. 66.On the decision of the length of imprisonment, I have carefully weighed the matters before me. Apart from the gravity of the breach, the harm caused, the lack of remorse and the presence of aggravating factors, I also bear in mind the peculiar features in this case, especially the needs of the Minor and the possible impact on her if she cannot have contact with Mother for a substantial period of time. The Minor was not able to establish a relationship with her Father at least at this stage. Although Mother is the author of the Minor’s tribulation, a substantial period of imprisonment may add to the Minor’s suffering. The police is investigating the case of possible child abuse by Mother. If there is a criminal prosecution, Mother will serve her sentence for abusing the Minor. I have not lost sight of the possible issues on totality and proportionality. Balancing all the circumstances, I order that Mother be committed to prison for an immediate term of 10 weeks. A warrant of arrest be issued. E. Costs 67.The usual cost order in a successful committal proceeding is to follow the event on an indemnity basis. 68.By reasons of the degree of gravity and culpability of Mother’s breach, her uncooperative conduct and continual delay in the present proceedings, there is no reason to depart from the usual order. I order Mother to pay the costs of Father and the Official Solicitor on an indemnity basis, at an amount to be taxed if not agreed. The above costs order is made on a nisi basis to become absolute after 14 days.
Mr. Justin Chong of Edward Lau Phoebe Ng Solicitors LLP for the Applicant The Respondent acting in person Ms. Eunice Ip of the Official Solicitor for the Interested Party [2] See paragraph 18 of the Adjournment Decision. [3] HCA 490/2007, 14 April 2008. [4] (2009) 12 HKCFAR 830. [5] [2016] 3 HKLRD 154. [7] HCMP 2946/2014, 16 November 2015. [8] [2012] 1 WLR 350 [45]. [10] [1970] 2 QB 114, 125A-B, per Lord Denning MR. [11] [2012] 2 FLR 133, 17 August 2011. [12] [2015] EWHC 611 (Fam), 9 March 2015. [13] [2023] 2 FLR 39, 15 February 2023. [19] [2012] 5 HKLRD 498 [43]. [20] [2010] 4 HKLRD 191. [21] From 4 to 12 years old. [22] [33] to [34] | |||||||||||||||||||||||||
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