Lch v. Wpsn

CACV 327/2024, [2025] HKCA 783

On Appeal From [2023] HKFC 254 and

[2023] HKFC 257

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 327 OF 2024

(ON APPEAL FROM FCMC NO. 1936 OF 2020)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

I.  Leave to appeal

1.The Petitioner Husband (‘the Husband’) applies for leave to appeal to the Court of Final Appeal against our judgment of 8 April 2025 with Reasons for Judgment delivered on 25 April 2025. The Respondent Wife (‘the Wife’) who acts in person objects to the application. We will deal with the application on paper.

2.The Husband relies on three questions said to be of great general or public importance :

1)  First question

‘Is it open to a Judgment Creditor to seek enforcement of a debt for maintenance by way of both the Judgment Summons route (which entails an examination process and then a committal summons) and/or (at the judgment creditor’s election) to seek committal without the examination process by applying directly pursuant to Order 52, rule 2 of the Rules of the High Court? Or is there only one route to seeking the committal of a Judgment Debtor and that is the route outlined in the case of YBL v LWC [2017] 1 HKLRD 823?’

2)  Second question

‘If a Judgment Creditor is able to proceed directly to a committal summons, should the Judgment Debtor be able to show that his conduct was not intentional by dint of having insufficient funds?’

3)  Third question

‘If special permission is granted to allow a new issue, ‘is a finding of contempt of court a nullity if obtained without the original order being indorsed with a penal notice?’

II.  Our view

3.We will not grant leave of appeal to the Husband.

1)  First question

4.The question is not reasonably arguable. As pointed out at [18] of our judgment, there is nothing to prevent an applicant from going to the committal route directly under Order 52, rule 2 of the Rules of the High Court (‘RHC’). We do not read YBL v LWC [2017] 1 HKLR 823 or Practice Direction (PD SL10.2) as precluding an applicant from so doing. The judgment and the Practice Direction have to be read against the background and the issues in YBL v LWC as highlighted in our judgment at [16]. It is also apparent from [6] of PD SL 10.2 that it is contemplated that an applicant may apply directly for an order of committal.

2)  Second question

5.This question is not reasonably arguable and the great general or public importance question is not engaged because this question could only be considered in the specific context of a case.

3)  Third question

6.This is yet another ‘try on’ bearing in mind that the Husband chose not to file any affirmation, submission or give evidence in the Court below in respect of the Wife’s committal application. No issue was taken before us on the penal notice requirement. This offends the Flywin principle : see BT v CBY (formerly known also as YHK and also known as YCB) [2020] HKCFA 35. In any event, as pointed out by the Judge in [9], [10] and [11] of his judgment below, the order he made on 16 December 2022 was endorsed with a penal notice requiring the Husband to comply with Recital C of the Children Finance Order. It was also served on the Husband personally. The date of service was 17 January 2023 : see the Wife’s 7^th Affirmation at [18] and [19]. The Husband was fully aware of the consequence of not complying with the order of 16 December 2022. Hussain v Hussain [1986] Fam. 134 at 140 clearly stated that there is no requirement for a penal notice to be endorsed on the record of the undertaking. The statement that ‘it is also desirable that the order shall contain some notice drawing his attention to the consequences, of a breach of the undertaking’ simply is not relevant in this case.

III.  Conclusion

7.The application is, accordingly, dismissed with costs to the Wife that we summarily assessed at $10,000.

8.The Husband also asked that there be a stay of our judgment, including the order for the payment of costs, pending the determination of that appeal or if leave is not granted by the Court of Appeal until such time as the Court of Final Appeal is able to determine leave to appeal. As the Husband has failed in his application, we will not grant a stay of our judgment.

Mr Richard Todd KC, instructed by Tonys Lawyers, for the Petitioner

The Respondent, unrepresented, acting in person