YKL v. YCF

FCMC 14949 / 2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 14949 OF 2013

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RULING
(Sentencing – Contempt of Court)

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1.  By a Judgment dated today (“the Judgment”), I find that the respondent husband has committed contempt of the court in failing to:

(1) attend the First Appointment hearing on 24 September 2014; and

(2) file and serve his Form E on or before 13 June 2014.

2.  This Ruling has to be read together with the Judgment.  I will continue to refer the respondent husband as “R”.

The Principles

3.  The purpose of the remedy for contempt of court is to ensure obedience to the court’s order.  Committal affects the liberty of the subject the court will only make an order for committal as a last resort and if there are other methods of enforcing compliance with the order those will be used: see Butterworths Family Law Service, Blinder 4(1), at § 3297.1.

4.  In W v H (No 3) (Contempt in Financial Remedy Proceedings and Costs) [2015] EWHC 2842 (Fam), Parker J, set out the stages to consider when sentencing for contempt:

13. There are a number of stages:

(i) The court does not have to commit to prison, but there is no principle that the term should not be immediate on the first breach.

(ii) The alternatives are limited.

(iii) The court can make no order, adjourn, fine, requisition assets and make a mental health order.

(iv) The length of a term of imprisonment must be decided without reference to whether it is to be suspended.

(v) The length of the term depends on the court's objectives.

(vi) It must bear some reasonable relationship to the two year maximum.

(vii) Suspension powers are wider than in the criminal context.

(viii) Length of suspension needs to be considered separately, though may be linked to continuing compliance with the underlying order.

(ix) The court must consider the context.

(x) The court cannot ignore parallel proceedings, and the court will not want the contemnor to be punished twice for the same events.

(xi) The court should explain the reasons for its choices.

Discussion

5.  I have heard R’s mitigation plea.  It is with regret that I do not see a slightest sign of contrition.

6.  R’s records after the commencement of the committal proceedings were no better than before.  He was absent in the First Appointment hearing of 26 August 2015 and the committal hearing of 26 October 2015; as a result of the latter, the court had to issue a warrant of arrest which was executed on 16 December 2015. It is true that his absence on 26 October 2015 was supported by a sick leave certificate, yet on the totality of the evidence before me, I agree with Ms Manek that R’s conduct has made the performance of the court’s functions in the present ancillary relief proceedings more difficult and legal costs have been wasted due to his delay and defiance tactics.  I have no doubt that R made a calculated decision not to comply with the court orders.  There must be an end to his disrespectful approach to a court of law. 

7.  That said, considering that R has already received a 6 weeks’ committal in the parallel proceedings, I should give some weight to the overall proportionality when I consider the form of punishment here.  I take the view that as part of the global punishment, it is appropriate to order R to pay the costs of both the judgment summons and the committal proceedings on an indemnity basis:  see Hong Kong Civil Procedure (2016), § 52/9/1.

Order

8.  I therefore order that the respondent do pay the petitioner the costs of the judgment summons and the committal proceedings on an indemnity basis, to be taxed if not agreed.  The petitioner’s own costs to be taxed according to the Legal Aid Regulations.