CWYJ v. LTYE

FCMC 1135 of 2016

[2020] HKFC 182

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 1135 of 2016

----------------------------

BETWEEN

------------------------

-----------------------

DECISION
(Prohibition Order- extension and discharge)

-----------------------

The Applications

1.  This is the substantive hearing of 3 Summonses : -

(a) the Respondent’s Summons (“Discharge Summons”) filed on 22 July 2020 for a discharge of the Prohibition Order granted against him on 6 July 2020 (“July Order”);

(b) the Petitioner’s Summons (“Extension Summons”) filed on 30 July 2020 for extension of the July Order; and

(c) the Petitioner’s Summons (“Second Extension Summons”) filed on 27 August 2020 for further extension of the July Order.

2.  By the Consent Order granted on 3 August 2020 (“Extended Order”), the July Order was extended until 5 September 2020 with the costs of the Discharge Summons and the Extension Summons be reserved. It is agreed by the Parties that the Extended Order was made without prejudice to the Respondent’s position that the July Order should be discharged.

Background

3.  The Parties were married in October 2007. Two children were born of the marriage. The first child was born in 2008 and the second one in 2010. The Petitioner (wife) petitioned for divorce in January 2016. The decree absolute was granted on 17 March 2017.

4.  During a mediation meeting, the parties reached a settlement on the issue of custody as well as financial arrangements with the assistance of their respective solicitors. The settlement was reduced into the “Minutes of Consent Order” dated 26 July 2016 which was subsequently made a consent order by the learned Deputy District Judge D. Cheung on 27 January 2017. The Order was re-amended on 30 July 2018 ("Consent Order").

5.  The Consent Order was granted upon a number of undertakings given by the Respondent (husband). The undertakings and the terms of the Consent Order which are relevant to the present purpose are the spousal payments for the Petitioner. The Respondent is required to pay to her : -

(a)	periodical payment of HKD35,000 per month until her death or remarriage, whichever is earlier (“PP Payments”). The first payment to be made on 1 August 2016; and
(b)	a sum of HKD4 million (by 8 installments, HKD500,000 for each installment for every six months. The first installment to be made on 1 January 2017 and the last one on 1 July 2020). (“LS Payments”)

(Collectively , “Spousal Payments”)

Enforcement Proceedings

6.  After two initial payments of HKD10,000 each in August and September 2016, totaling HKD20,000 (“2016 Payment”), the Respondent had since fallen into arrears. The Petitioner issued a judgment summons on 17 August 2017 (“First JS Summons”) and another one on 15 August 2018 (“Second JS Summons”) seeking to recover the Spousal Payments in arrears and costs. The Respondent made two applications for variation of the Consent Order on 4 April 2018 and 2 May 2018 respectively (“First VOM Applications”). The First VOM Applications were dismissed after trial by this Court on 28 June 2019. On 1 July 2019, the Respondent relocated to Singapore.

7.  At the call-over hearing of the two judgment summonses on 14 January 2020, the learned Deputy District Judge D. To ordered the Respondent to personally attend the adjourned hearing scheduled for 28 July 2020 (“First JS Hearing”) with penal notice be endorsed on the Order.

8.  On 29 June 2020, the Respondent filed an affidavit (“R’s June Affidavit”) asserting that he would not attend the First JS Hearing for he would leave Hong Kong for Singapore at any time between 7 and 9 July 2020 and, if he does not present at the hearing, he understood fully that the court is entitled to make any decision based on the evidence produced by the Parties. He however has made no application for an adjournment of the said hearing nor application for leave to be excused from attending it.

9.  The said affidavit triggered the Petitioner’s application for a prohibition order leading to the grant of the July Order.

10.  No application had been made for discharge of the July Order until 7:44p.m. on 21 July 2020 when the copies of the Respondent’s Affidavits were faxed to the Duty Judge with another set of copies lodged with the court on 22 July 2020.

11.  On 22 July 2020, this Court was seized of the matter and scheduled the hearing of the Respondent’s application on the same day. The Respondent was directed to issue the Discharge Summons with the original affidavits be formally filed.

12.  At that hearing, this Court refused to immediately discharge the July Order with brief reasons given. Upon the Petitioner’s undertaking that her application for extension of the July Order would be made by way of inter-parte Summons no later than 4:00p.m. on 30 July 2020, this Court directed the Petitioner’s intended extension summons to be heard together with the Discharge Summons before this Court on a date to be fixed no later than 5 August 2020 with costs of that hearing be reserved.

13.  It is noteworthy that at the said hearing, the Respondent indicated that he was willing to : -

(a) pay over the balance in his MPF account (of about HK$840,000) to the Petitioner within 7 days of his receipt of it so as to discharge the arrears of the PP Payments in full with the remaining balance applied towards the LS Payments;

(b) if the Petitioner were to apply for an attachment of income order in Singapore to enforce the Consent Order, he would not oppose the same in principle, subject to provision of his reasonable living expenses.

14.  That said, this Court’s invitation to the Respondent to materialize the terms of his 2 suggestions at the hearing was declined. The Petitioner also complained the late notification of the application which left her with no sufficient time for preparing her objection. As of the date of the hearing, the amounts remained unpaid was more than HKD5.6 million.

15.  At the First JS Hearing on 28 July 2020, the Respondent offered to pay the Petitioner HKD839,585.58, representing his MPF payment, upon receipt of it, which was said to take place shortly. Upon the enquiry of the learned Judge, the First JS Summons and the Petitioner’s application for leave to issue another Judgment Summons dated 22 July 2020 (collectively, the “Disposed Applications”) were disposed of due to irregularity. The learned Judge gave directions for further conduct of the Second JS Summons as well as the parties’ respective intended applications. The hearing of the Second JS Summons was adjourned to 24 August 2020 (“Second JS Hearing”). The Respondent was ordered to personally attend the adjourned hearing.

16.  The Petitioner took out the Extension Summons on 30 July 2020. The hearing of it and the Discharge Summons were fixed to be heard on 4 August 2020.

17.  By the Extended Order, the July Order was extended for one month and the hearing scheduled for 4 August 2020 was vacated.

18.  On 11 August 2020, the Petitioner took out an inter-parte Summons (“Leave Summons”) seeking leave to commence enforcement proceedings to recover the Spousal Payments which were outstanding for more than 12 months, including the LS Payments and the PP Payments she had sought to recover under the Disposed Applications.

19.  On the same day, the Respondent took out a Summons for variation of the Consent Order (“Second VOM Application”) seeking an order that :-

(a) the payment schedule of the LS Payments be varied to monthly installments of HK$5,000 and from January 2022, HK$10,000;

(b) The PP Payments be varied to HK$1 per annum.

20.  On 21 August 2020, the Petitioner took out a Judgment Summons (“Third JS Summons”) seeking to recover the PP Payments for the period between September 2019 and August 2020.

21.  At the Second JS Hearing, the learned Judge gave directions for filing of evidence, and adjourned the hearing of the Second JS Summons, the Third JS Summons (collectively, “Two JS Summonses”), the Leave Summons and the Second VOM Application (the four applications collectively, “Four Applications”) to 9 November 2020 (“Third JS Hearing”). The Respondent was ordered to personally attend the Third JS Hearing. Penal notice was endorsed on the order.

Past Payments

22.  Before the grant of the July Order, the Respondent had only made the 2016 Payments totaling HK$20,000 for settlement of the Spousal Payments. Only after the grant of the July Order, he then applied for the release of his MPF payment and also made payment of a sum of HK$5,000 to the Petitioner.

23.  On 27 August 2020, a Consent Summons was filed into Court for the purpose of disposing the Two JS Summonses after the receipt of the Respondent’s MPF payment of HK$846,132.05 (“2020 Payment”) by the Petitioner. It was agreed that the 2020 Payment was to settle the outstanding PP Payments under the Two JS Summonses with the balance sum to be applied towards partial settlement of the LS Payments. However, given the terms of the Consent Summons and the amounts involved are inherently problematic, court requisition was raised for clarifications and rectifications.

The Legal Principles

24.  The applicable legal principles are not in disagreement which I should briefly state as follows.

25.  The jurisdiction of the Family Court to make an order prohibiting a person from leaving Hong Kong to facilitate the enforcement, securing or pursuance of a judgment against that person for the payment of a specified sum of money is derived from section 52E of the District Court Ordinance, Cap. 336.

26.  In Avco Financial Services (Asoa) Ltd v Topma Electronics Ltd & Ors [1999] 4 HKC193, it was held that it would not be appropriate to make a prohibition order unless prohibiting the judgment debtor from leaving Hong Kong is reasonably and properly conducive to the enforcement of the judgment. There must be some evidence that the enforcement of the judgment would be impeded in some significant way if no prohibition order were made.

27.  The grant of a prohibition order is a matter of the court’s discretion. In Questnet Ltd v Rinck unreported, HCA1475/2006 18 February 2008, Chu J (as she then was) approved of the approach taken in Yue Wah Chuk & Anor v McKeon Bredan Hugh unreported DCCJ7088/2003 24 August 2004 over the exercise of discretion where judgment for a sum certain has been obtained, by asking three questions : (1) whether there is a real likelihood that the judgment debtor will leave Hong Kong; (2) whether there is a real risk that he will not return for a substantial period of time; and (3) whether as a result of his absence enforcement of the judgment would be obstructed or delayed.

28.  With these principles in mind, I shall now consider the parties’ respective applications.

Question 1 & 2

29.  Regarding Questions 1 and 2 posed in the Questnet Ltd case, some reliance can be placed on the Respondent’s statutory declaration for the purpose of termination of his MPF Account and for release of his MPF benefit on 16 July 2020. His ground of application was permanent departure from Hong Kong : “depart from Hong Kong to reside elsewhere (Singapore) with no intention of returning for employment or to resettle in Hong Kong as a permanent resident.” and for long-term overseas employment.

30.  In parallel with his statuary declaration, the Respondent has expressly declared in his affidavits that he has relocated to Singapore permanently for work and will leave Hong Kong as soon as the prohibition order is discharged and he is granted permission to return to Singapore from the Singapore Government under the travel restriction policy for the purpose of reducing the risk of importing the COVID-19 virus.

31.  His declarations sit comfortably with the background facts for he has : -

(a) packed up and delivered up vacant possession of his rented property in HK.

(b) relocated to Singapore and has been working in a company there since 1 July 2019 allegedly earning a reduced monthly salary of SGD8,800 plus bonus (as compared to his remunerations in Hong Kong in the past).

(c) moved from Hong Kong to live in his rented apartment in Singapore with his wife and their 2 dogs.

(d) booked flights to fly back to Singapore together with his wife on 8 July 2020. Because of the July Order, he was barred from leaving.

(e) applied for residency in Singapore.

(f) filed the R’s June Affidavit.

32.  The combined effect of his declarations and conducts point to his unequivocal determination of leaving Hong Kong to stay in Singapore permanently for work since 1 July 2019. His determination is echoed by his express eagerness to leave Hong Kong as soon as the prohibition order is discharged and the permission to return to Singapore is granted.

33.  It is said for the Respondent that his parents, his 2 children, and some of his friends and business connections are in Hong Kong and he has the practice of returning to Hong Kong to meet them.

34.  However, not only that there is no indication of any concrete plan to return to Hong Kong in the foreseeable future, especially in light of his alleged employment commitments together with the travel restriction policy of Singapore, worse still, his intention to attend the judgment summons hearings is in serious doubt.

35.  At the time the Discharge Summons was issued, the Respondent was well aware that he was ordered to attend the First JS Hearing 6 days later and he needed permission to entry from the Singapore Government before he can return to Singapore and would be subject to 14-day quarantine. As indicated in the R’s June Affidavit, he simply ignored the Order of the Court for his personal attendance of the First JS Hearing and the penal notice.

36.  Coupled with the long history of his defaulting payment, with his conduct of not paying one single cent since September 2016 until after the July Order, with his allegation that he is now in debt and his expenditures far exceed his income, the Petitioner has valid basis to fear that he would not want to face the consequences of the enforcement proceedings and hence a real risk of him not returning to Hong Kong should he be allowed to leave.

37.  Undoubtedly he has been well aware of the serious nature of the judgment summons procedures as well as the consequences of being subject to detailed examination under oath under the judgment summons and/ or committal proceedings, through the advice of his legal team and the warnings of the Courts in the previous hearings.

38.  In the premises, I have solid reasons to believe that there is a real risk that he will leave Hong Kong for a substantial period of time. See DX v LN FCMC7870/ 2014 unreported 14 April 2016.

Question 3

39.  The Consent Order has remained in force. The Petitioner has solid grounds for seeking an order that the Respondent should remain in Hong Kong whilst the enforcement proceedings remain on foot : the Second JS Summons, the Third JS Summons, the Leave Summons .

40.  The Consent Summons has yet been approved and the Two JS Summonses remain undisposed of. It certainly has not discharged the Respondent from the payment obligation of more than HKD5,000,000 under the Consent Order.

41.  Suffice it to say for the present purpose, the Petitioner has been taking a number of steps to enforce the Consent Order since 17 August 2017, including 4 applications initiating judgment summons process and serving a statutory demand against the Respondent (which was ultimately set aside). She clearly has an arguable case under the Leave Summons. Indeed, directions have been given for filing of affidavit for substantive argument of it.

42.  According to the Respondent’s Form E filed on 13 March 2020 and his affidavits, he has no assets of substantial value in Hong Kong or elsewhere, but deficits and liabilities. It is also said that his parents, his father being a senior solicitor in a reputable law firm and his mother, in possession of several landed properties in Hong Kong, who had substantially financed his luxurious life in the past, have cut-off their financial support to him.

43.  That said, he has been able to meet his own needs and expenses throughout the years and to retain a well-established firm and legal team to represent him. In further consideration of his relocation to Singapore since July 2019, the examination process under the judgement summons appears to be a sensible means for the Petitioner to pursue so as to ascertain his financial resources with an aim of getting the fruit of the Consent Order. To achieve this aim, his personal attendance of the hearings of judgment summons is crucial. The hearing of the Four Applications was scheduled for 9 November 2020.

44.  As outlined above, I am satisfied that enforcement of the Consent Order will be obstructed or delayed in the absence of the Respondent.

Prejudice

45.  As to the complaint of not being able to return to Singapore for work, I have seriously considered the impact of the July Order on the Respondent but opine that it is not something that weighs materially in favour of a discharge of the July Order, having regard to all the circumstances of this case.

46.  Truly the risk of losing employment can never be eliminated. A Mr YXXX, the XXXXXXXXXXXXX of the Respondent’s employer and a mutual friend of the Parties, has filed an affirmation stating that the Respondent, being the XXXXXXX, was required to return to Singapore and XXX for work and the company might consider replacing him if the situation required. I however could not lose sight of the fact that although the Respondent was aware of the July Order on 9 July 2020, he only sought to discharge it until 21 July 2020. He has maintained effective communication and flexibility with his employer resulting in the rescheduling of the projects which involved him as well as other constructive business developments after the July Order.

47.  The suggestion that he needs to return to work in order to make good his payment proposal under the Second VOM Application is negated by the fact that almost all of the Spousal Payments remained unpaid despite his stable employment with decent salary for the past few years.

48.  From the materials before this Court, it can be readily inferred that he will leave Hong Kong for a substantial period of time as soon as he could if the prohibition order were removed. He is the author of his destiny and the Petitioner should not be blamed for this.

Enforcement Alternatives

49.  Ms Leung seeks to argue that it is open to the Petitioner to enforce the Consent Order in Singapore. It is emphasized that an application for an attachment of income order is a good option as the Respondent is willing to undertake not to oppose the same, subject to an agreement that a reasonable sum be provided to him for his living expenses. That being the case, no concrete proposal or figures were suggested by him.

50.  As elaborated above, from the information gathered at this stage, it is not illogical or unreasonable for the Petitioner to persist on the examination procedures and intended committal proceedings in these proceeding. In view of the payment history and the past conducts of the Respondent, it is understandable that the Petitioner will be cautious about such general suggestion (without concrete plan) and be loath to be burdened with additional cost in commencing another set of proceedings in Singapore at this stage.

51.  I am not persuaded that the Petitioner is at fault for not putting forward any concrete plan of attachment of income for the Respondent to consider. While the parties have been constantly encouraged to settle their disputes through alternative dispute resolution routes, their mediation has met with no success lately. The Petitioner has the legal rights to enforce the Consent Order according to the civil procedures. Regrettably, the courts’ invitations for the Respondent to materialize the terms of the attachment of income suggestion and to explore feasible solutions as direct payments from his employer met with no success. It is difficult to see how the Petitioner will be able to design a feasible plan with the limited information disclosed by the Respondent and his past conduct in departing from his undertakings at this stage.

52.  So far, the Respondent has been silent on the suggestion of arranging personal guarantee or surety. This is an option open to him for they will not be spent if he does return for future hearings.

Material Non-disclosure

53.  As to the Respondent’s complaints about the Petitioner’s material non-disclosure and misrepresentation in her affirmation in support of the application for the July Order (“Supporting Affirmation”), the Respondent produced the affirmation of Mr YXXX to justify his criticism. The content of which is disputed by the Petitioner.

54.  I am slow to consider the Petitioner’s statement in the Supporting Affirmation that she had contacted Mr YXXX who indicated that there was no urgency for the Respondent to return to Singapore at that moment amounts to material non-disclosure or misrepresentation which warrants a discharge order. The fact in question is not one which should have been put in the scales, nor is it determinative. I do not think such information is necessary to enable this Court to properly exercise the discretion.

55.  It is a disclosed fact that the Respondent has been in employment with the group which Mr YXXX serves. Logically and in the normal course of event, an employee is duty bound to report to duty and to discharge the obligations imposed by his employer, some are urgent matters and some are less urgent ones. Risk of losing employment because of absence from duty is logically foreseeable.

56.  It is not an established practice to incumbent on an applicant for a prohibition order to approach the employer of the respondent for ascertaining the degree of urgency of his work or the likelihood of termination of employment. In reality, it is difficult for an applicant to approach a respondent’s employer or to assess the degree of urgency of his work or likelihood of dismissal as presented by the employer. It is a matter of degree and perception. Commonsense dictates that absence from duty for long without permission entails termination of employment. An applicant’s perception in this regard is immaterial.

57.  The fact that the Petitioner had a conversation with Mr YXXX, so happened to be a mutual friend of both parties, on the work situation of the Respondent does not render such matter material to the present application. Much emphasis has been placed by Mr Lam that such matter was not relied on upon the application of the July Order.

58.  Further, even if Mr YXXX’s affirmation is taken to the highest, which I do not so find, it does not lend any support to the Respondent’s argument. Mr YXXX said that in his telephone conversation with the Petitioner on 1 July 2020, he told her that he had not been notified by the Respondent of his obligation to attend the First JS Hearing, that they had not expected the COVID-19 lock down would go beyond June 2020 and thought it would make no difference if the Respondent was working home or in Hong Kong, that the Respondent was a XXXXXXX for the project in XXX and he needed to be there since the project was already delayed, that he could not force any of his staff members to take any action against their will but there would be consequences as it affects the company.

59.  Shortly thereafter, when the Petitioner whatsapps him to ask him for : -

“please write a company letter for me to state that [the Respondent] has not reported to his employer on his need to be in HK on 28Jul202 and that he is not absolutely necessary to go back to Singapore.

I know this request is a little out of the ordinary, but [the Respondent] has to produce evidence to support his application to skip/ postpone the court hearing. If what you said on our last conversation is true, then you are just stating the facts. Many thanks.”

60.  Mr YXXX chose not to reply to such message even though he now says that such message did not reflect the true contents of their conversation. He did neither complain to the Petitioner that her statement was untrue. Nor did he clarify what the true facts are.

61.  In the circumstances, the Petitioner was left with her view undisputed that the Respondent had not reported to his employer on his need to be in Hong Kong on 28 July 2020 and that he was not absolutely necessary to go back to Singapore. There is factual basis for her to perceive there was no urgency, bearing in mind that urgency is a matter of degree and interpretation. At any rates, her perception of no urgency has no material impact on the exercise of the Court’s discretion as commonsense dictates that absence from work for long entails dismissal. There is no room for argument on material non-disclosure, still less of misrepresentation.

62.  After all, in this case, the Respondent’s eagerness to return to Singapore to develop his career and the risk of losing employment is not something that weighs materially in favour of a discharge of the prohibition order, having regard to all the circumstances of this case. Even if, which I do not so find, the alleged material non-disclosure does exist, I would have re-granted a fresh prohibition order.

63.  I take the view that the July Order and the extension of it is needed to enforce the Consent Order, which is the subject of the series of judgment summonses and Leave Summons. The Respondent has been obliged to personally attend the hearings of those applications as ordered by the Court. The Petitioner clearly has valid grounds for seeking an extension order that the Respondent should remain in Hong Kong while the enforcement proceedings remain on foot.

Conclusion

64.  Having considered the Parties’ submissions, evidence and all the circumstances of this case, I order that : -

(1) the Discharge Summons be dismissed;

(2) the Second Extension Summons be allowed. The Prohibition Order dated 6 July 2020, extended on 3 August 2020, be further extended for one month from the date of its expiry.

Costs

65.  Taking into account all the circumstances of this case, I take the view that the general principle of costs follow the event should apply. I make an order nisi that the Respondent do pay the costs of the Discharge Summons, the Extension Summons and Second Extension Summons to the Petitioner, including all costs previously reserved, to be taxed if not agreed, with certificate for counsel.

66.  The above costs order nisi shall become absolute after 14 days from the date of this decision unless application to vary the order nisi by Summons is filed within this 14-day period.