K v. A

HCMP 2186/2021

[2025] HKCFI 3602

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2186 OF 2021

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D E C I S I O N

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INTRODUCTION

1.On 24 March 2025, I found the respondent, A, guilty of contempt on two counts: see judgment at [2025] HKCFI 1024.

2.I shall adopt below the defined terms used in that judgment.

3.The two counts are:

(1)  Breach of the disclosure order, namely, that A do forthwith upon the terms of the June order coming to his attention disclose the exact whereabouts of HVD to the applicant’s solicitors.

(2)  Breach of the return order, namely, that A do take all necessary steps to return HVD to Hong Kong within 14 days after being served with the June order and make HVD available to be examined by the court at the adjourned hearing.

4.This hearing is the sentencing hearing.

LEGAL PRINCIPLES

5.Contempt of civil court orders is a serious matter. Court orders are made to be obeyed. A prime consideration of the court in sentencing contempt is to signal the importance of demonstrating to litigants that the orders of the courts are to be obeyed. The “litigants” here refer to litigants in general and not just the contemnor himself. 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.

6.The sentence for contempt may range from a fine to a term of imprisonment, but 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. The court may suspend a term of imprisonment for such period or on such terms as the court deems fit. But where nothing further needs to be done to comply with the order in question, it is difficult to see the circumstances justifying a suspended order.

7.For these general principles: see, eg, Arboit v Koo Siu Ying (No 2) [2016] 3 HKLRD 154.

8.The nature of the order and the breach in question as well as the extent of the breach are highly relevant considerations. So are any acts to purge the contempt.

9.Where the order in question is in the nature of an injunction, subject to any mitigating factors, the starting and primary penalty for contempt in breaching such an order is imprisonment. The normal penalty for breaches of injunction orders is imprisonment measured in months: see, eg, La Dolce Vita Fine Dining Co Ltd v Zhang Lan [2019] 2 HKLRD 341, [2019] HKCFI 618.

DISCUSSION

10.Both the disclosure order and the return order are in the nature of an injunction. Absent any mitigating factors, the starting point which I will adopt today as a penalty is imprisonment in terms of months.

11.The court granted the June order in exercise of its protective jurisdiction to safeguard the interests and welfare of HVD: see para 151. We must bear firmly in mind the purpose of the June order and why a short timeframe for compliance was imposed. They were the means to ensure that the court could as soon as possible ascertain HVD’s mental capacity and her true wishes as to where she wanted to stay. As found, A was knowingly in breach of the disclosure order and the return order. As a result of that, the mental health court was not able to make speedy progress in those proceedings: see para 224.

12.Back in June 2021, the injunction orders were applied for on an urgent basis. The urgency was accepted by the ex parte judge. Hence, timing for compliance was critical. As found, A did not comply with the orders and he had no intention of obeying the orders: see paras 171 and 222. His breaches were therefore serious.

13.In view of the seriousness of the breach, prima facie, a fine as a punishment as suggested by Ms Ann Lee, counsel appearing for A today, is not suitable as being too lenient.

14.A puts forward a number of mitigating factors, which apply to both counts of contempt. Among them, I find that the fact that the breach does not appear to have caused any real or lasting prejudice to HVD an important mitigating factor.

15.As it turns out, as opined by Dr Wong, while HVD was suffering from major neurocognitive disorder due to Alzheimer’s disease and was a mentally incapacitated person, she retained her social cognitive function such that she was able to make decisions as to where she would want to live.

16.The evidence before me suggests that HVD has been staying with A after they moved to Singapore in May 2021. A, together with his wife and their helper, have been taking care of HVD on a day-to-day basis. The impression which I have formed is that HVD is apparently happy with being with A and his family. When it comes to her daily needs and comfort, A has been a caring son. The mental health proceedings are after all brought for the wellbeing of HVD. As it transpires, A has been taking good care of her. That in my view is a weighty mitigating factor.

17.Apart from that, I consider that the following factors carry very little weight.

(1)  A’s apology to the court. That was only made in the latest affirmation filed last month.

(2)  A’s clear record and that he has no previous criminal or contempt record. As observed in Arboit, the court would not place too much weight on the fact of a contemnor being a first offender. That is because the public must not be misled to believe that every person has one chance of disobeying a court order: see para 37.

(3)  The underlying family disputes between A and K and the strained family relationship. I fail to see how that would mitigate against the wrongfulness in A’s disobedience of the disclosure order and the return order in the circumstances of the present case. A now says that the dispute have led to great mistrust and hostility between him and K. He harboured serious doubts over K’s motive and genuineness in her conduct, including her commencement of the mental health proceedings and her obtaining of the June order. A was therefore resistant to whatever K did. I do not accept that as a valid mitigating factor. In these mental health proceedings, parties must act with the interest of HVD as the paramount consideration.

(4)  The turmoil already suffered by A by reason of these mental health proceedings: financially, emotionally and in terms of his reputation. I do not doubt that A has gone through a lot over the past few years, but as found, he had no intention of obeying the court orders. He must now live with the consequence.

(5)  A’s health condition. The evidence suggests that he has been infected with polio from a very young age and he is currently suffering from back bone and hip pain. However, the evidence does not show that the medical condition is of such a seriousness that would amount to a mitigating factor. As observed in Arboit, if a custodial sentence is justified, medical condition weighs very little: see para 41.

(6)  Potential harm brought by a custodial sentence to the family. I do not accept that as a valid mitigating factor. It is for A to work together with other family members to achieve harmony if possible.

18.I now turn to the two counts of contempt and address the specific mitigating factor for each of those counts.

Count 1

19.For Count 1, I accept the submission that the breach was later purged on 2 July 2021 by way of A’s former solicitors’ confirmation: see para 158. That is an important mitigating factor for this count. Due weight should be given to it.

20.Nevertheless, the breach was a serious one. The penalty of fine as suggested by A is not a suitable penalty. I would adopt the starting point of one month’s imprisonment.

21.Taking into account, first, the purge and, second, the fact that HVD has been taken good care of by A, I now impose a sentence of two weeks’ imprisonment for Count 1.

Count 2

22.For Count 2, I do not accept the submission that the contempt was purged in October 2022 when HVD returned to Hong Kong. The breach took place on 2 July 2021 and it has not been purged after that: see paras 212 and 213. The medical examination of HVD took place in Singapore in January 2022. It was in fact A’s submission at the contempt trial that the purpose of the return order had been achieved after the medical examination was concluded: see para 123.

23.The purpose of the return order was for HVD to be examined. It was not a return order per se. After the examination was done, there was no further need for HVD to return to Hong Kong. There was no further room for compliance after the medical examination. Hence, the eventual return in October 2022 does not amount to a purge as by then there is nothing to be purged.

24.At today’s hearing, Ms Lee submits as an alternative that the contempt should be considered purged at the time of the medical examination. I do not accept that submission. The examination was done pursuant to the court’s direction made on 12 January 2022. Even if that can be classified as a purge, that was done under the compulsion of the court order. That is not a proper purge in the present context.

25.Count 2 is more serious than Count 1 and it was not purged. The only significant mitigating factor is the fact that HVD had been taken care of by A at all times. Still, a fine, as now suggested by A, is not a suitable penalty as a punishment.

26.For Count 2, I adopt a starting point of two months’ imprisonment. Applying a reduction to reflect the mitigating factor, I impose a sentence of six weeks’ imprisonment for Count 2.

27.The sentences for Counts 1 and 2 are to run concurrently. So that is my decision.

(Submissions re costs)

28.On costs for sentencing, including the costs of today’s hearing, they should be paid by A to K to be taxed on an indemnity basis if not agreed.

29.Unlike the trial on liability, there is no reason to apply a discount to these costs as suggested by A.

(Application for bail)

30.I grant bail to A pending his appeal on sentencing.

Mr Kevin Leung, instructed by Oldham, Li & Nie, for the applicant

Ms Ann Lee, instructed by ONC Lawyers, for the respondent