Ns v. Nk

FCMC 8255 / 2022

[2025] HKFC 200

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8255 OF 2022

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DECISION

(Civil Contempt: Sentencing)

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Introduction

1.On 25 November 2025, the Respondent father was found guilty of contempt of court. See: [2025] HKFC 193. I shall adopt the abbreviations in the said judgment.

2.I adjourned the hearing to today to deal with sentencing, with a view to give the Father a further chance to participate in these proceedings.

3.I again was satisfied that the order dated 25 November 2025 has been served on the Father in accordance with my order for substituted service and he had knowledge of today’s hearing.

4.I considered that it was appropriate to proceed to sentencing in the absence of the Father.

Sentencing

5.The Mother’s counsel submitted that a sentence of 4 months’ imprisonment is appropriate in this case.

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.

The Sentence

7.Court orders and directions, are meant to be complied with irrespective of whether the person who has to comply is happy or willing to do so.

8.Having considered all the relevant factors, I was of the view that an imprisonment term was warranted to protect the respect for court’s orders and its authority.

9.The Father was legally represented when the Maintenance Order was made against him, and he should have been advised on the possible consequences of his breach. The Father has been in default for over 2 years. His conduct had caused severe financial hardship to the Mother.

10.Further, despite the court had given him a chance to purge his breach to the Disclosure Order, but he chose to remain uncooperative even when faced with potential committal liability.

11.The Father evinced no remorse and chose not to appear in, and refused to engage in these proceedings after 3 July 2025 hearing. There was therefore no mitigating factor.

12.I am of the view that a custodial sentence of 4 months is appropriate in light of all the circumstances.

Costs

13.In my decision dated 25 November 2025, the Father was ordered to pay the Mother’s costs of the contempt proceedings on an indemnity basis. There is no reason to depart from that approach and I order that the Father is to pay the Mother’s costs of today’s hearing, with certificate for counsel, on an indemnity basis, to be taxed if not agreed.

14.The Mother’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr. Shaphan Marwah instructed by Messrs. Hugill & Ip for the petitioner

The Respondent, unrepresented and did not appear