Maria Luisa Xavier v. Jerry Francis Xavier
Read the full judgment text of FCMC 35/1975 on BabelCite. This Family Court judgment was delivered on 9 June 1976 before Collier, D.J..
District Court – contempt of court – jurisdiction – Matrimonial Causes Ordinance (Cap. 179) – committal for non-compliance with maintenance order – whether District Court has power to convict for contempt – whether rules under s.54(1) can confer committal powers – District Court is creature of statute with limited powers – enforcement in Supreme Court – application dismissed – transfer to Supreme Court indicated
Legal issues: Jurisdiction to convict for contempt · Rule-making power under s.54(1) Cap. 179
Outcome: Application to convict for contempt dismissed; matter to be transferred to Supreme Court.
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FCMC000035/1975 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA DIVORCE JURISDICTION ACTION NO. 35 OF 1975 -----------------
----------------- Coram: Collier, D.J. in Court. Date of Judgment: 9 June 1976 ----------------- RULING ----------------- 1. I am asked to convict the Respondent to prison for contempt of court in that he did not comply with an order to pay maintenance. 2. This is not the first such application that has been before me. 3. While it is true, that, prima facie, rules 87 & 88 of the Matrimonial Causes Rules made under the Matrimonial Causes Ordinance, Cap. 179, would appear to give power to convict for contempt, those rules must be read with the power given to the Chief Justice to make the said rules. Section 54(1) of that Ordinance says:
4. It is clear therefore that the intention of the legislature was to provide that orders made by the District Court should be enforced in the Supreme Court in a manner to be prescribed by rules made by the Chief Justice under item (d) of subsection (1) of section 54. That section (54) does not empower the Chief Justice to prefer upon the District Court any powers with regard to committal for contempt by the process of making rules, neither does Cap. 179 confer any greater jurisdiction with regard to powers to convict for contempt than that which appears in the District Court Ordinance, by section 20, which is concerned only with contempt in the face of the Court, which does not arise in this application. 5. Subsection (2) of Section 10A of Cap. 179 does not assist the Applicant/Petitioner either in that, although it provides that "In respect of matrimonial causes in which the District Court has jurisdiction under this section, the provisions of this Ordinance shall be construed as if 'court' includes the District Court", there is nothing in Cap. 179 with regard to committal for contempt. Small wonder at that since the Supreme Court has always exercised wide powers for committal for contempt based on the powers of the Supreme Court in England. The only reference specifically to committal proceedings in the Supreme Court Ordinance is to be found in section 37A of the Supreme Court Ordinance, Cap. 4, which deals with appeals from committals for contempt, no express power to convict for contempt appears in the Supreme Court Ordinance. The District Court is a creature of statute: its powers to convict for contempt are extremely limited and limited by Ordinance. Unless and until the Legislature sees fit by Ordinance to enlarge the jurisdiction of the District Court with regard to committal for contempt, the powers remain those as are prescribed by the District Court Ordinance; they cannot be enlarged by rules made by the Chief Justice nor do I think for one moment that be so intended. To end up at the beginning, the rule-making power contained in section 54(1) of Cap. 179 was to provide for the enforcement in the Supreme Court for orders made in the District Court and that is precisely what the rules provide. That and no more. I have already indicated that I will transfer this cause to the Supreme Court when the necessary application is made.
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