Wong, Justin S v. Mak, Yuen Mei Angela (Formerly Known As Wong Mak, Yuen Mei Angela also known as Mak, Yuen Mei Angela)

FCMC 8870/ 2022

[2025] HKFC 90

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8870 OF 2022

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

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Introduction

1.The Petitioner (“Husband”), applied for an order of committal of the Respondent (“Wife”) for contempt of court pursuant to Order 52 of the Rules of the High Court (“RHC”)(Cap. 4A) alleging deliberate breach of the non-molestation order made by His Honour Judge KK Pang on 3 February 2023 which was further varied on 6 February 2023 and was continued on 13 July 2023 (collectively “Non-molestation Order”).

2.The committal proceedings stemming from the Wife had sent over a hundred of degrading, defamatory, offensive or insulting description of statements about the Husband, his parents and his sister. The Wife sent these statements to the Husband as well as third parties, including the Husband’s employer and the organization whom the grandfather served as a member.

3.In support of the application, reliance is placed on the Husband’s affirmation and the Order 52 rule 2(2) of the RHC statement filed on 18 December 2024 (“Order 52 r 2(2) statement”).

4.On 8 May 2025, the Wife was represented by counsel, Mr Leung. Mr Leung confirmed the Wife’s admission of contempt as the facts set out in the Amended Order 52 r 2(2) statement jointly signed by the parties. The said document helpfully encapsulates the relevant background material.

5.Based on the Wife’s admissions, the Wife was found guilty of contempt of court. I then invited parties to submit on the appropriate sentences for the Wife.

Applicable principles on Sentencing

6.The principles for sentencing in contempt of court are summarised by Au Yeung J in Arboit v. Koo Siu Ying (No 2) [2016] 3 HKLRD 154:

2. The starting-point is to acknowledge that contempt of civil court orders is a serious matter and that court orders are made to be obeyed. A prime consideration of the court in sentencing contempt is to “signal importance of demonstrating to litigants that the orders of these courts are to be obeyed”. By “litigants”, it is clearly referring to litigants in general and not just the contemnor himself. See Questnet Limited v Wilfred Royce Lane, HCA 1475/2006, Chu J (as she then was), 23 June 2008 (on sentence).

3. The object of the sentence is both to punish conduct in defiance of the court’s order and to serve a coercive function by holding out the threat of future punishment as a means of securing the protection which the order was primarily there to do: Crystal Mews Ltd v Metterick & ors [2006] EWHC 3087, §8, Collins J; re Barrell Enterprises [1973] 1 WLR 19, at 27C-D, English CA. The court has to balance the 2 objects.

4. The sentence for contempt may range from a fine to a term of imprisonment. The UK Contempt of Court Act 1981 imposes a maximum term of 2 years’ imprisonment but Hong Kong does not have that statutory limit.

5. Imprisonment should be regarded as a sanction of the last resort. Any custodial sentence should be as short as possible consistent with the circumstances of the case. Willwin Development (Asia) Co Ltd v Wei Xing, HCMP 2946/2014 (unreported, 16 November 2015), B Chu J, §4(f); CMA CGM v Ng Chip Choi Maurice, HCMP 2988/2014, 12 March 2015, Au-Yeung J, §24(1).

6. The court may suspend a term of imprisonment for such period or on such terms as the court deems fit: CMA CGM v Ng Chip Choi Maurice, §24(2); Order 52, rule 7. This is an “absolute discretion” but it would be difficult to think of circumstances where a suspended order should be made when nothing further remains to be done to comply with the order: Hong Kong Civil Procedure 2016, Vol 1, §52/7/2.

7. The court will consider if there are:

(a) Aggravating factors: Hao Xiaoying v Wong Yiu Lam William & Ors, HCMP 1968/2014, 2 March 2015, Anthony Chan J;

(b) Mitigating factors: Ge Transportation (Shenyang) Co Ltd v Lu Jinxiang, HCMP 1792/2013 (unreported, 22 January 2014) (DHCJ Marlene Ng); and

(c) Acts to purge the contempt, ie acts to atone for a contempt, eradicate it or cleanse it of its previous ill-effect which, in the case of a mandatory order, may be fulfilled if the contemnor thereupon does the act or causes it to be done: CJ v Flintshire BC [2010] EWCA Civ 393, at §6.

8. Relevant factors (which are not exhaustive) include:

(a) The nature of the order and breach in question, and the extent of the breach: Questnet Limited v Wilfred Royce Lane.

(b) Whether the contempt was contumacious or unintentional, the reasons, motives and state of mind: Hong Kong Civil Procedure 2016, Vol 1, §52/9/2.

(c) Whether the claimant has been prejudiced by virtue of the contempt and whether the prejudice is capable of remedy: Crystal Mews Ltd v Metterick, §13.

(d) Whether the contemnor appreciates the seriousness of the deliberate breach: Crystal Mews Ltd v Metterick, §13.

(e) Whether the contemnor has cooperated: Crystal Mews Ltd v Metterick, §13.

7.In La Dolce Vita Fine Dining Co Ltd v Zhang Lan [2019] 2 HKLRD 341, Hon Mimmie Chan J says:

8. The legal principles applicable to sentencing for contempt of court have been summarized in Suzanne Ruth Henderson v Scott Henderson HCMP 2016/2014, 14 April 2016 and Wilwin Development (Asia) Co Ltd v Wei Xing, HCMP 2946/2014, 16 November 2015. In Suzanne Ruth Henderson, the court emphasized that contempt of civil court orders is a serious matter. A prime consideration of the court in sentencing contempt is to signal the importance of demonstrating to litigants that orders of the court are to be obeyed. The jurisdiction of the court in contempt proceedings arises out of its inherent jurisdiction to enforce its own orders. The purpose of the law of contempt is not to protect the dignity of judges but to prevent interference with the due administration of justice. As succinctly pointed out in RACP Pharmaceutical Holdings Ltd v Li Xiaobo HCA 490/2007:

“The first principle is that court orders are made to be obeyed. They are not guidelines, to be ignored or paid lip service to at the behest of the parties affected. They are the building blocks by which the administration of justice is made workable. Litigants who willfully breach orders at the expense of their opponents to their advantage do so at the risk of losing their liberty for being in contempt of court.”

14. There is a strong public interest to ensure that orders of the court should not be flouted, although the individual circumstances of each case must always be evaluated. Imprisonment should be regarded as a sanction of last resort.

15. Subject to mitigating factors, if any, the starting and primary penalty for contempt of court in breaching an order in the nature of an injunction is imprisonment. The normal penalty for breaches of injunction orders is imprisonment measured in months (Asia Islamic Trade Finance Fund v Drum Risk Management Ltd [2015] EWHC 3748 (Comm), Bunge SA v Huaya Maritime Corporation of the Marshall Islands [2017] EWHC 90 (Comm), Law Lai Lan v Tamang Prem Candr [2018] HKCFI 536).

The Wife’s grounds of mitigation

8.Mr Leung submits that the Court should first consider a fine, taking into account the circumstances of the present case, including:

(1)  The Wife has a clear record;

(2)  The Wife’s admission of liability;

(3)  The Wife stresses that there was no intention to deliberately disregard the Non-molestation Order;

(4)  There has been no direct contact with the Husband for almost 6 months by now and the Wife intends this to continue the future;

(5)  The Wife signed a fresh undertaking not to molest, harass, disturb the Husband and his family;

(6)  The Wife has already been sufficiently punished by the present proceedings as she has to pay HK$1 million in costs to the Husband up to the PTR hearing on 8 May 2025; and

(7)  The Wife will have a criminal record and as a lawyer, this is a severe matter and this will hang over the Wife for the rest of her professional life.

9.In the alternative, Mr Leung submitted that if the Court finds imprisonment inevitable, that should be suspended, as that would be sufficient to reflect the seriousness of the Wife’s breach proportionately.

The Husband’s submissions

10.Ms Yip submits that a sentence of 3 months’ imprisonment suspended for 2 years should be the minimum or the starting point.

11.Ms Yip submits that the following matters justify custodial sentence against the Wife:

(1)  The Wife showed no remorse. The Wife offered no apology to the Husband and his parents;

(2)  The Wife’s act was deliberate and hence contemptuous. Despite the Husband had given the Wife repeated warnings and reminders in the past 2 years, the Wife chose to ignore and continued her breaches;

(3)  It is fundamental to the rule of law that court orders are to be obeyed;

(4)  The Wife repeatedly and continuously sending degrading, defamatory, offensive or insulting descriptions messages to the Husband and spreading to third parties is testing the sanctity or inviolability of a court order;

(5)  The impact of sending the messages to the Husband’s employer, is severe, as it has left a blot on the Husband’s employment;

(6)  The Wife taught the child of the family to utter a message that says “祝你生cancer”, which curses his paternal grandmother, a cancer survivor, then sent over to the Husband is hardly related to promotion of the child’s interest;

(7)  The Wife being a practising solicitor, i.e. an officer of the court, is an aggravating factor, instead of a mitigating factor;

(8)  The adverse costs order against the Wife in these proceedings is a result of her own making. It is not a punishment for the Wife, but rather a consequences arising from her misdeeds; and

(9)  The Court should send a clear message to the public that such conduct is not tolerated in a civilised society. In other words, the sentence imposed should have a deterrent effect on would-be defendants or contemnors;

12.Ms Yip referred the court to consider the case Hale v Tanner [2000] 2 FLR 879.

The Sentence

13.I agree with Ms Yip’s submissions that there was no mitigating factor. The Wife’s plea of guilt was no mitigation in the circumstances and, as she was not contrite at all, her plea before me for leniency carried no weight.

14.There was no excuse for the Wife to breach the Non-molestation Order. She is a practising solicitor and should be well aware of the ambit of the Non-molestation Order.

15.It makes no sense for the Wife to claim that sending messages such as cursing and mocking others for having cancer has anything to do with protecting the interests of the child of the family.

16.The Wife has committed the contemptuous acts deliberately for a continuous period of time. She showed no remorse right up to the end.

17.The evidence in these committal proceedings clearly demonstrated the Wife’s disregard and intentional breaches of the Non-molestation Order irrespective of potential criminal liability.

18.I am mindful that the Wife had stopped her act since the Husband took out committal proceedings against her.

19.Having considered all the factors discussed earlier, I am of the view that a custodial sentence is merited because the Wife has acted in contumelious disregard of the Non-molestation Order on numerous occasions.

20.Court orders such as those involved in these committal proceedings, which were aimed at protecting the applicant and his or her family members from harm, must never be taken lightly.

21.In the light of all the circumstances, the appropriate sentence for the Wife is 3 months’ imprisonment, on condition that the Wife shall not breach her undertaking as to non-molestation given by her on 8 May 2025.

22.I am however suspending the sentence imposed for a period of 24 months from the date of the order, so as to grant the Wife a final opportunity to show the court that she can comply with court order.

23.My order is to uphold the goal of deterring contemptuous behaviour and to protect and preserve the authority of the courts.

Costs

24.It is well established that a successful claimant in contempt proceedings will usually be awarded costs on an indemnity basis. See: Lau Yee Ching v. Wong Tak Kwong & Ors, CACV385/2005, 3 March 2006 and Secretary for Justice v Cheng Lai King [2020] 5 HKLRD 356 at [93].

25.At the hearing on 8 May 2025, costs order on an indemnity basis was already made in respect of the Husband’s costs up to 8 May 2025. The court only needs to consider the costs for today’s hearing.

26.The Husband seeks a summary assessment by reference to a statement of costs totalling HK$376,356 which included a significant sum for counsel fee.

27.In assessing the costs claimed by the Husband, by a broad brush approach, in the exercise of my discretion, I summarily assessed the costs for this hearing on indemnity basis at HK$280,000, with certificate for one counsel.

Orders

28.I now make the following Orders :

(1)  The Wife be committed to prison for a period of 3 months suspended for 24 months, on condition that the Wife shall not breach her undertaking as to non-molestation given by her on 8 May 2025; and

(2)  The Wife do pay to the Husband costs of this hearing, with certificate for one counsel, summarily assessed on indemnity basis at HK$280,000.

Ms Anita Yip SC and Ms Lily Yu instructed by Messrs. Hugill & Ip, Solicitors for the Petitioner

Mr Sebastian Leung instructed by Messrs. Lo, Wong & Tsui for the Respondent