BT and CBY (formerly known as YHK and also known as YCB)

FAMV No. 121 of 2020

[2020] HKCFA 35

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 121 OF 2020 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 439 OF 2019)

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ:

1.  At the hearing, we dismissed this application for leave to appeal for reasons which we now provide.

A.     The proceedings below

2.  In divorce proceedings commenced by the present applicant (“the husband”), the Court made an order by consent whereby he undertook to pay a lump sum of $26 million to the present respondent (“the wife”) in seven instalments within 36 months, ie, by 1 September 2014 (“the Consent Order”). Although the first instalment was due on 1 September 2011, the husband failed to make any payment until 1 March 2013, and then again defaulted.

3.  To enforce the Consent Order, the wife issued judgment summonses requiring the husband to show cause why he should not be committed to prison for such default. The matter came before HH Judge Melloy and in the first part of the trial (in February 2014), the husband agreed to sell two properties and to pay the proceeds into court or to the wife. He also agreed to make interim payments of $300,000 per month to the wife. At the resumed hearing, it was not in dispute that $24,170,410.67 was due and owing as at 5 May 2015 and, noting that the husband “was given the benefit of the doubt” in February, the Judge found that, “the husband certainly originally had the means to pay the wife” but that, as a deliberate act, he “did wilfully choose not to make the payments due and owing to the wife and he did choose to invest the monies elsewhere”. She also found it a matter of concern that the properties had not been sold and was inclined to accept that this had been deliberately contrived.[1]

4.  The Judge thus found that the husband was in contempt “as he had the ability to make the payments ordered but has wilfully failed to do so”.[2] However, instead of immediately committing him to prison, the Judge decided to allow him a year to sell the properties and raise the funds to satisfy the judgment. Accordingly, on 29 May 2015 she made a committal order which she suspended on condition that, on or before 1 June 2016, the husband paid to the wife the $24,170,410.67 outstanding, with interest accruing at a daily rate of $5,297.62 and a surcharge of $1,208,520.00, meanwhile continuing to make the monthly $300,000.00 payments (“the 2015 Order”).

5.  The husband again defaulted. He paid neither the outstanding lump sum amount nor the surcharge and defaulted in making most of the monthly payments. The wife applied on 11 October 2016 to activate the suspended sentence of committal imposed as part of the 2015 Order. However, on 30 December 2016, the Court of Appeal published its judgment in YBL v LWC,[3] holding that changes had to be made to the judgment summons procedure under Rule 87 of the Matrimonial Causes Rules[4] to achieve consistency with Article 10 and Article 11 of the Bill of Rights.[5] We should emphasise that the present application does not involve any challenge to or consideration of the correctness or otherwise of YBL v LWC. This is unsurprising since it was relied on by the husband in resisting activation of the suspended committal order.

6.  That decision was however important to the progress of the case since the changes made by YBL v LWC led Judge Melloy to refuse the wife’s application to activate the suspended committal order.[6] The wife therefore had to issue a fresh application for committal.[7] In her ruling dated 28 June 2019,[8] Judge Melloy held that the husband had breached the 2015 Order, having deliberately chosen to put other financial commitments ahead of his obligations under that Order. However, she refused to make a committal order on the basis that the wife was unable “to show beyond reasonable doubt that the husband has the current ability to pay her what he owes”.[9]

7.  On the wife’s appeal, the Court of Appeal[10] reversed the Judge’s decision and, being satisfied that the husband had been guilty of contempt of court by not complying with the 2015 Order, committed him to prison for three months. Cheung JA, writing for the Court, held that the Judge had wrongly focussed on the state of the husband’s means asserted at the time of the hearing in 2019 rather than on his conduct and means in the period from the making of the 2015 Order until 1 June 2016, the extended time for compliance. In that period, there was ample evidence that the husband “had the means to pay the wife but ... refused to do so because he chose not to use the available funds to satisfy the debt he owes her”.[11] His purported inability to pay “was self-generated because he put his priority in repaying his family member and his creditors ahead of his wife”.[12] Furthermore, his Lordship held that the Judge had been wrong to permit the husband to rely on his latest affirmation to assert that he lacked the necessary means when he had declared that he would not submit to being cross-examined on it,[13] Her Honour proceeding on that basis to find that the wife did not have sufficient evidence to prove beyond reasonable doubt that he had available means.

8.  The Court of Appeal highlighted the nature of the husband’s contempt as follows:

“The history of the case reveals a clear pattern by the husband to flaunt Court orders for payment made either with his consent or upon his undertaking to comply with an earlier order. He had been found in contempt once and was given a chance to purge his contempt when the Judge suspended the operation of committal order by giving him further time to pay the wife. To date he still has not complied with the order for payment.”[14]

9.  On 26 June 2020, the Court of Appeal refused the husband’s application for leave to appeal to this Court.

B.     The present leave application

10.  Two features of the proceedings below should be noted. First, procedural complications were introduced because the wife’s efforts to enforce the orders in her favour straddled the YBL v LWC decision. The ensuing change in practice interrupted such enforcement, rendering ineffective the suspended committal order. The present case therefore involves a transitional situation which is most unlikely to recur and raises no point of general practical importance.

11.  Secondly, the Court of Appeal’s decision turned on determining the appropriate time for assessing the conduct and means of the alleged contemnor. It did not break new ground but merely applied YBL v LWC in holding that the requirement was to show that the debtor “has or has had since the date of the order the means to pay the sum in respect of which he has made default”.[15] As we have noted, YBL v LWC is not under challenge. The Judge’s focus on the husband’s means current at the date of the hearing, rather than during the extended time he was granted for compliance, was plainly inconsistent with that decision. The other aspect of the Court of Appeal’s judgment was evidential, calling into question the Judge’s acceptance of the husband’s latest affirmation and her conclusion that the wife’s evidence was insufficient to prove contempt beyond reasonable doubt. The Court of Appeal’s decision therefore does not give rise to any “question involved in the appeal ... which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court for decision”.[16]

12.  It was therefore with great surprise that we received an Application for Leave to Appeal submitting that no fewer than 20 questions (one with six sub-questions) of great general or public importance arise in the proposed appeal. After hearing Mr Richard Todd, counsel for the husband,[17] we concluded that not a single one of those questions merited serious consideration as a possible basis for granting leave.

13.  Quite apart from the fact that the proposed appeal does not raise questions of the requisite importance, the proffered questions are deficient in one or more ways: some do not arise at all; or were not argued below and cannot be raised for the first time in the Final Court; or raise questions of fact rather than law. Generally, they are not reasonably arguable.

14.  In the skeleton argument lodged for the husband, Questions 9, 10, 13, 14, 15 and 17 (purporting to raise respectively, issues concerning Article 7 of the Bill of Rights; the relationship between Order 48 and Order 52 of the Rules of the High Court; whether an (undefined) difference between civil and criminal contempt is “justified”; whether a penal notice is mandatory; and concerning service of a committal order) are self-confessedly points that were not raised below. None of them merit serious consideration for leave to appeal. And they are not the only Questions sought to be raised for the first time.

15.  Question 9 deserves special mention. It involves an unarguable proposition which was reiterated time and again at the hearing, namely, that the present case involves imprisonment for debt and that Article 7 of the Bill of Rights is somehow relevant. Article 7 provides: “No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.” It is impossible to see how it can sensibly be suggested that committal for the husband’s pattern of deliberate and repeated flaunting of the Court’s orders, even after being afforded an opportunity to purge his contempt, can be equated to imprisonment “merely on the ground of inability to fulfil a contractual obligation”.[18]

16.  Turning to the other questions, despite Mr Todd’s submissions to the contrary, issues of res judicata purportedly raised by Questions 1 and 2 simply do not arise. There is no question that the 2015 Order can be so impugned. Neither is the privilege against self-incrimination guaranteed by Article 11(2)(g) of the Bill of Rights, asserted in Question 6, engaged on the facts, these proceedings not involving the determination of any criminal charge against the husband who, in any event, was never compelled to make any statement, let alone testify against himself.

17.  Questions 3, 4, 5, 7, 8 and 16 which seek to cast doubt on the validity and clarity of the 2015 Order, are not reasonably arguable given that there has never been any question of what the husband’s obligations were, voluntarily entered into and unaffected by anything said in YBL v LWC.

18.  Questions 11 and 12 are incoherently discussed in the skeleton argument which acknowledges that the Court of Appeal “were right to have held that if [the husband] had the ability to pay at any time after being required then a breach of the order occurred at that time”, evidently based on YBL v LWC. It is therefore hard to see the point of Question 11 asking about “the significance of the financial circumstances” of the husband at the time of the hearing and sentencing.

19.  Questions 18 and 19 are examples of hopelessly broad questions, asking “When is Committal properly brought as a remedy of last resort?” and “When should the Court exercise its discretion not to commit?” They are not questions “involved in the appeal”.

20.  Question 20 asks: “Is there a duty of promptitude where the liberty of the individual is to be placed in peril? If so, was that duty breached here?” It is an impertinent question raised on behalf of a husband who, over a nine year period, has persisted in breaching the Court’s orders, who has asked for time to comply but then chosen to deploy his resources elsewhere, who has resisted timeous enforcement by the wife of the suspended committal order and who has now mounted a wholly unmeritorious leave application.

21.  An application for leave to appeal mounted in such an unprincipled and undisciplined manner is to be deprecated. It borders on an abuse of process. We accordingly dismissed the application with costs.

22.  At the end of the hearing, the husband applied for enforcement of the Court of Appeal’s sentence of committal to be deferred for 14 days and for his bail to be extended for that period to enable him to put together a proposal aimed at purging his contempt. It was opposed by Ms Anita Yip SC, appearing for the wife.[19] We made the following Orders, namely:

(a)  We dismiss this application with costs for reasons to be provided.

(b)  It follows that the Order of the Court of Appeal is restored, requiring the applicant to complete his sentence.

(c)  However, we suspend that order and extend the applicant’s bail on the same conditions until 2:00 pm on Friday 13 November 2020, with liberty to the parties to apply to a single Permanent Judge during the period of suspension.

(d)  In default of such application or subject to the directions of the single Permanent Judge, the Court of Appeal’s Order shall be enforced at the end of the said period of suspension without further direction.