YBL v. LWC

CACV 244/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 244 OF 2015

(ON APPEAL FROM FCMC NO 9052 of 2013)

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JUDGMENT

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The Court :

A.    Introduction and background 

1. In family proceedings, many judgment creditors have to use the judgment summons procedure to enforce judgments.  The process, being a process commenced by making of an ex-parte application by a judgment creditor followed by the issue of a summons pursuant to Rule 87 of the Matrimonial Causes Rules Cap 179A, was described by Ma JA (as the Chief Justice then was) in C v C [2004] 1 HKLRD 242 at [45] in these words:

“ The proceedings then become a combination of an investigation into a judgment debtor’s financial means and the threat of imprisonment being ordered should it transpire that he has been at fault. In this way, the true nature of a hearing of a judgment summons is that of contempt proceedings where the court must be satisfied beyond a reasonable doubt before making an order for commitment….”

2. In that case, the Court of Appeal dealt with some of the procedural aspects (hearing in open court and the importance of it being heard separately from other applications) of a judgment summons and gave guidance on the same.  It is not clear from the report whether other aspects had been canvassed in submissions.  In any event, the Court did not discuss the wider implications flowing from the penal nature of the process and the effects of Articles 10 and 11 of the Hong Kong Bill of Rights [“HKBoR”] on it. 

3. In an earlier case before the Court of Final Appeal in G v S (2001) 4 HKCFAR 419, Nazareth NPJ drew attention to the English Court of Appeal decision in Mubarak v Mubarak [2001] 1 FLR 698 in which a similar procedure in England had been held to be inconsistent with certain provisions in the European Convention on Human Rights.  That had led to some changes in the English rules and practice governing the judgment summons procedure.

4. There was, however, no change in the Hong Kong rules.  Later, in 2012, this Court (differently constituted) in CYM v YML [2013] 1 HKLRD 701 at [52] again highlighted the potential problems with our judgment summons procedure in light of Mubarak v Mubarak, supra, pinpointing potential difficulties with Articles 10 and 11 of the HKBoR.  At [51], Lam JA (as he then was) had this to say regarding the process:

“ In my view, like committal proceedings in other types of civil litigation, judgment summons should be a last resort. …Given the penal consequence, like a committal for civil contempt, the judgment creditor has to satisfy the court beyond reasonable doubt that the judgment debtor has the means to pay the judgment debt … If a judgment creditor has no firm and cogent evidential basis to discharge such onus, it would not be appropriate to proceed by way of judgment summons.”

5. After a lapse of more than 3 years, the procedure under Rule 87 remains the same though in the meantime the Chief Justice’s Working Party on Family Procedure Rules recommended in its Final Report published in May 2015 that Rule 87 should be amended.  In the Family Court, the problem is often compounded by the fact that in many cases, the litigants on both sides are not legally represented.  There are cases (like the present one) where the judgment creditor was originally represented by solicitor assigned by the Director of Legal Aid but after the issue of the judgment summons legal representation was discharged.  The lack of legal representation placed a very onerous burden on the judges in the Family Court in handling judgment summons applications.

6. Whilst one would not rule out the possibility of an examination being conducted by a judgment creditor acting in person, the role of the judge in the examination process is to ensure that the examination is conducted properly and within the legitimate purposes of an examination. The judge should also make directions for the necessary documents to be produced by the judgment debtor.  It is however not the function of a judge to descend into the arena to take on the role of the examiner or to embark upon “judicial interrogation”.  Thus, even in cases where a judgment creditor is not legally represented, the judge cannot take an active role in examining the judgment debtor.

7. Hence, in many cases where neither side is legally represented, the judgment creditor did not actually conduct any real examination.  In substance, the only application under a judgment summons is an application for committal.  As we shall see, this was what happened in the present case.  

8. In the present appeal, the Respondent was a judgment debtor, having been ordered on 21 June 2013 to pay interim maintenance for the children of the family in the sum of $20,000 per month.  Since September 2013, he defaulted in making any payment.  On 1 August 2014, solicitors for the Petitioner applied by a praecipe for the issue of judgment summons.  A judgment summons was issued on 13 August 2014.  The summons was heard by His Honour Judge Bruno Chan (“the Judge”) on various dates in 2015.  By then, neither side was legally represented.  It culminated in an order of 26 October 2015 committing the judgment debtor to prison for 3 months.  The Judge also ordered that the imprisonment could be suspended upon payment of $521,000 into court.

9. After the Respondent was imprisoned, he obtained legal representation and his lawyers applied to this court for bail pending appeal.  The main grounds of appeal, as appeared in a Notice of Appeal drafted by counsel, are that the right to fair trial of the Respondent was infringed in that the burden of proof had been reversed, the proceedings had been conducted without regard to the right of silence and the privilege against self-incrimination, the lack of particulars in the charge against the Respondent and the lack of inquiry on legal representation for the Respondent. The Respondent also challenged the Judge’s failure to consider his application to set aside and/or stay the interim maintenance order (taken out on 20 August 2015) before proceeding with the judgment summons.  Further, the Respondent said the order of committal did not state the precise contempt which the Respondent was found guilty of and the evidence relied upon by the Judge. 

10. The Notice of Appeal was amended pursuant to leave granted by the Court on 20 November 2015.  Essentially, the same grounds of appeal were advanced.  It was also averred that the Judge adopted an inquisitorial approach at the hearing.  It further said that the sentence imposed was manifestly excessive and wrong in principle.

11. The Court (Lam VP and Chu JA) granted bail pending appeal on 2 November 2015.  Bail was set at $200,000.  In light of the absence of legal representation for the Petitioner and the general importance of the points raised in the appeal, the Court decided to appoint an amicus in the case.  Since then, the Registrar appointed Ms Yip SC as amicus and we are greatly indebted to her assistance in the appeal.

12. The appeal first came on for hearing on 4 December 2015.  Shortly before that, on 25 November 2015, the court received a memorandum of notification of the Petitioner’s application for legal aid.  By reason of the need for further research as emerged in the course of hearing and to accommodate the Petitioner’s pending legal aid application, the Court (Lam VP, Chu and Poon JJA) adjourned the appeal.  Bail was extended on the same terms. 

13. Legal aid was finally granted to the Petitioner on 7 March 2016.  The appeal was restored and we heard the same on 17 August 2016.  We reserved our judgment after hearing submissions.  We now give judgment in the appeal.

14. Before we come to the discussion on the facts of the case and the application of the law to it, we shall first examine the relevant legal principles and the constitutionality of the judgment summons procedures.

B.   The legal principles governing judgment summons

15. As has been explained at the beginning of this judgment, a facet of the judgment summons is an application for committal for contempt.  As liberty of the judgment debtor is involved, in addition to Articles 10 and 11, Article 5 of HKBoR is also relevant.  These articles are in these terms:

“ Article 5: Liberty and security of person

(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

(2) Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

(3) Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.

(4) Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

(5) Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Article 10: Equality before courts and right to fair and public hearing

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

Article 11: Rights of persons charged with or convicted of criminal offence

(1) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality-

(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) to be tried without undue delay;

(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) to have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) not to be compelled to testify against himself or to confess guilt.

(3) In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

(4) Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

(5) When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

(6)  No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong.”

16. Having proper regard to the human rights jurisprudence under provisions similar to Article 5, it is clear that imprisonment of debtor merely on account of his lack of means is a violation of Art 5(1) of the HKBoR: see the decision of Constitutional Court of South Africa in Farieda Coetzee v Republic of South Africa Case No CCT 19/94; the decision of High Court of Ireland in McCann v The Judge of Monaghan District Court [2009] IEHC 276; the decision of High Court of Kenya in Beatrice Wanjiku v AG Petition 190 of 2011.  Since the proposition is not seriously challenged by counsel appearing before us, we need not refer to these authorities at length in this judgment.

17. In any case, as a matter of Hong Kong jurisprudence and the legislative framework underpinning Rule 87, we are satisfied that a judgment debtor can only be committed to the prison under the judgment summons if the court is satisfied beyond reasonable doubt that he or she is able to satisfy the judgment wholly or partly or has disposed of assets with a view to avoiding satisfaction of the judgment wholly or partly.  In other words, imprisonment can only be ordered when one of the criteria in Order 49B Rule 1B(1) of The Rules of the High Court, Cap 4A is satisfied. 

18. Though the Debtors Act 1869 is not applicable in Hong Kong, Sections 21A and B of the High Court Ordinance Cap 4[1], read together with Order 49B rule 1B(1) (which also applies to examination under Order 48, and judgment summons is a summons under Order 48) define circumstances in which a judgment debtor can be imprisoned under the judgment summons procedure.  Within such confines, there is no suggestion before us that the restriction of the right to liberty is not proportionate.  In Poon Ting Chau v Wong Kwok Chi CACV 65 and 66 of 2007, 19 Feb 2009, this Court (Cheung and Yuen JJA) held that the sanction of imprisonment imposed under Order 49B was proportionate.

19. Further, as stated in C v C, supra, committal under a judgment summons is in substance proceedings for civil contempt, see also Mubarak v Mubarak, supra [50].  In Kao Lee & Yip v Koo Hoi Yan (2009) 12 HKCFAR 830, the Court of Final Appeal decided that though liability for civil contempt does not depend on a contumacious intent, the exemption for “unintentional” conduct in the Stancomb principle[2] exonerates a judgment debtor who had no means to comply with the order, see [48] citing Concorde Construction Co Ltd v Colgan Co Ltd [1984] HKC 253 and [56].  Another example can be found in Ferryhill International Ltd v Aziz [1997] 1 HKLRD 482 at p.488E.  See also L v L [2001] 1 HKLRD 150 at p.155 where Leong JA (as he then was) said the following in the context of judgment summons:

“ There must be a finding as to the husband’s means and as to his ability to pay the judgment debt but the Deputy Judge had not reached any such conclusions. … In our opinion, the judgment summons should have been dealt with in open court after the variation summons was dealt with in chambers. The reason is if the husband became incapable financially to meet the periodical payments, because of a change in circumstances a variation of the order on periodical payments would become necessary. Before any such order is made, the Court would invariably have inquired into the husband’s means and it might be the case that to proceed with the judgment summons would not serve any useful purpose.”

20. Thus, in CYM v YML, supra, it was held that in order to succeed in a judgment summons the judgment creditor has to satisfy the court beyond reasonable doubt that the judgment debtor has the means to pay the judgment debt.

21. Miss Lai (who appeared for the Respondent) does not dispute that the court has the jurisdiction to make an order for committal if it is satisfied beyond reasonable doubt on either limb (a) or limb (b) of Order 49 Rule 1B(1).  However, she submitted that the procedure adopted under Rule 87 infringes the fundamental rights under Articles 10 and 11 of  HKBoR in the way she outlined in the Amended Notice of Appeal.

22. As recently held by this Court (Cheung CJHC, Yeung and Lam VPP) in Secretary for Justice v Cheung Kai Yin [2016] 4 HKLRD 367, by reason of the penal consequences of contempt proceedings (and as we have seen, judgment summons, Order 48 and Order 49B proceedings also come within the same category), the protections in Articles 10 and 11 of HKBoR for criminal proceedings are engaged.

23. Having regard to the submissions advanced before us, we can identify the following as constitutional provisions which are engaged for present purposes:

(a) Right to a fair and public hearing under Article 10;

(b) Presumption of innocence under Article 11(1);

(c) Right to be informed of the nature and cause of the charge under Article 11(2)(a);

(d) Right to be informed of the right to have legal assistance and to have such assistance assigned for a person who does not have sufficient means to pay under Article 11(2)(d);

(e) Right to examine the witnesses against him under Article 11(2)(e);

(f) Right not to be compelled to testify against himself or to confess guilt under Article 11(2)(g).

24. When considering Article 11, it is necessary to read it together with Article 10 instead of addressing it as an isolated provision.  The overall question is whether the procedures adopted infringed the right to fair trial.  Thus, the European Court of Human Rights reiterated in its judgments that the guarantees in the equivalent of our Article 11 are specific aspects of the right to a fair hearing in Article 10 which have to be taken into account in the assessment of the overall fairness of proceedings. The court has to look at the proceedings as a whole having regard not only to the rights of the defence but also the interests of the public and the victims that crime is properly prosecuted: Al-Khawaja v UK (2012) 54 EHRR 23 at [118]; Horncastle v UK (2015) 60 EHRR 31 at [131]; see also R v Sellick [2005] 1 WLR 3257 at [50]. 

25. Some of the rights pertaining to a judgment debtor in a judgment summons and Order 49B application as a person subject to a criminal charge in the context of Articles 10 and 11 have previously been considered in Hong Kong (though without explicit reference to Articles 10 and 11 of HKBoR): the right to be tried in open court, see L v L; C v C, supra, [46(2)]; C v H [2012] 3 HKLRD 351; that the burden of proof is on the judgment creditor to prove beyond reasonable doubt the judgment debtor’s ability to pay, see Bank of India v Murjani CACV 12 of 1991, 1 May 1991; Hua Chiao Commercial Bank v Alpha Plus International Development  [2001] 2 HKC 54; C v C, supra, [45]; CYM v YML, supra, [51].  It is not necessary for us to expand on what had already been canvassed in these judgments except to highlight that the fundamental rights under Articles 10 and 11 are involved in these respects.

26. There are also Hong Kong authorities stressing that committal should be a procedure of last resort: see G v S supra, [21]; CYM v YML, supra, [51] and that the sentence must not be excessive: see G v S supra [21]; C v C, supra [51(3)].

27. Further, as a matter of procedural consideration, it has been held that application for committal should not be heard together with other applications and in general an application for variation should be heard before the judgment summons: L v L, supra; C v C, supra; C v H, supra.  In this respect, though Ma JA suggested in C v C, supra [47] and [48] that there could be exception for an application for variation of a maintenance pending suit order to be heard at the same time of the judgment summons, we note apparently no argument on the implications of Article 11(2)(c) and (f) had been advanced in that case. Having now taken those provisions into account, we respectfully come to the clear conclusion that a variation application should not be heard together with the judgment summons.  Instead, a variation application should be heard first. Thereafter, if it is necessary to proceed with the judgment summons, the court should direct a statement to be served and filed by the judgment creditor setting out the charge and the case the judgment debtor has to meet before restoring a judgment summons for hearing in open court.  We shall elaborate on the requirement of Article 11(2)(c) below. 

28. We shall examine later whether in the present case the court below has exercised its jurisdiction in accordance with these principles.  However, before doing so, we need to discuss at greater length the other aspects of the rights under Articles 10 and 11 in the context of judgment summons.  We would also need to consider whether Rule 87 can be Articles 10 and 11 compliant and if not, whether the procedure can be salvaged by remedial interpretation.

C.    English developments  

29. Mubarak v Mubarak, supra, was decided shortly after the enactment of the Human Rights Act in the United Kingdom[3]. In that case, the English Court of Appeal accepted submissions from counsel for the husband that the minimum rights in terms of presumption of innocence, right to precise articulation of the charge[4], right to adequate time to prepare defence, right to examine evidence were infringed.

30. The English Court of Appeal held that the practice governing civil contempt proceedings as set out in Practice Direction: Committal Applications (28 May 1999) should be applied to judgment summons.

31. Brooke LJ at [57] to [60] pinpointed the need to segregate the examination of means from the committal proceedings.  He held that hearing both at the same time would infringe the right against self-incrimination. He also held that Form M17, the prescribed form for judgment summons, which was similar to Form 23 used in Hong Kong, involved the reversal of burden of proof as it required the judgment debtor “to show cause why you should not be committed to prison”. 

32. In England, Practice Direction (Family Proceedings: Committal) was issued by President of the Family Division in March 2001 [2001] 1 WLR 1253, which was applicable to judgment summons as well.  The rules were amended after Mubarak v Mubarak, supra in the form of Family Proceedings (Amendment) Rules 2003 Rules 11 to 13 which amended rules 7.4 to 7.6 of the Family Proceedings Rules 1991.  We do not propose to discuss the amendments at length in this judgment.  For our purposes, it suffices to note that the examination process has been taken out from the judgment summons procedure and it is expressly provided that the judgment creditor has to prove that the debtor (i) has or has had since the date of the order the means to pay the sum in respect of which he has made default; and (ii) has refused or neglected, or refuses or neglects, to pay the sum (see the new Rule 7.4(7B) inserted under Rule 11(4) of the 2003 Rules) and that the debtor may not be compelled to give evidence, see the new Rule 7.4(7C).  The relevant form was amended accordingly.

33. The English rules were further amended in 2010 and judgment summons is now governed by the Family Proceedings Rules 2010 Chapter 2 Rules 33.9 to 33.18.  The features identified above are retained.

34. Despite these changes, there are continuing debates in the English cases on issues as to whether the practice and procedure is Convention compliant.  Counsel has taken us to the relevant authorities: Corbett v Corbett [2003] 2 FLR 385; Karoonian v Child Maintenance and Enforcement Commission [2012] EWCA Civ 1379; Bhura v Bhura [2013] 2 FLR 142; Zuk v Zuk [2013] 2 FLR 1466; Mohan v Mohan [2014] 1 FLR 717; Constantinides v Constantinides [2014] 2 FLR 736; Prest v Prest [2015] EWCA Civ 714; Migliaccio v Migliaccio [2016] EWHC 1055.  The latest debate revolved around the extent to which a judgment creditor can rely on evidence obtained in an earlier process of examination in which a judgment debtor is compellable and whether a prima facie case can be founded upon the findings in earlier ancillary relief and variation applications.  

35. We are indebted to the discussions in these authorities and counsel’s submissions on the same.  However, it is clear that the debates in the English cases were premised on the English rules (which, as we have seen, have been amended twice since Mubarak) and the debates are still ongoing.  We were also told by Ms Yip that further revisions of the rules are being considered.

D.    The Hong Kong human rights landscape: Articles 10 and 11 of HKBoR

36. In our judgment, in terms of the position in Hong Kong, we should examine the constitutionality of the judgment summons procedure primarily by reference to a principled analysis on the rights under Articles 10 and 11.  Rule 87 should also be considered together with the Hong Kong jurisprudence highlighted above which provide some safeguards in accordance with Articles 10 and 11 and they should be taken as part and parcel of the our legal framework for this procedure since judges are obliged to observe the principles discussed in those cases as a matter of common law.  We bear in mind the English experience in conducting the analysis.  However, the solution in Hong Kong may not be the same as that adopted in England since there are significant differences in the social conditions in Hong Kong which, as we shall explain, enhance the demand for enforcement of judgments or orders of the Family Court by judgment summons.  Thus, we shall not conduct a detail examination of the English cases in our discussions below though, as we said, we have paid regard to the discussions on principles in those judgments and in many respects we are indebted to the discussions therein.

D1.   Presumption of innocence

37. In considering the right under Article 11(1) on presumption of innocence, there is already a body of case law in Hong Kong holding that in the context of a judgment summons the burden of proof is on judgment creditor and the standard of proof is beyond reasonable doubt.  Ms Yip quite properly drew our attention to Rule 87(5)(c) and Form 23 where there are references to the judgment debtor being summoned to “show cause” why he should not be committed to prison for his default.  Though we believe in practice judges exercising family jurisdiction in Hong Kong should be bound by C v C, supra, [45]; CYM v YML, supra, [51] to adopt the correct approach, we agree with Ms Yip that the wordings in section 87(5)(c) and Form 23 could be misleading.  Further, as the present case illustrates, there are risks of lapses on the part of Family Court judges when they do not have the benefit of assistance of legal representations for the parties.  It is wrong in principle to require a judgment debtor “to show cause” in the context of a committal application in light of Article 11(1).  On any view, those words should be taken out from Rule 87(5)(c) and Form 23.  We shall discuss the viability of remedial interpretation below.

D2.   The right to be informed

38. We shall next focus our discussion on the right to be informed of the nature and cause of the charge under Article 11(2)(a). The right has been explained by Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary 2^nd revised Edn p.331 to cover “not only the exact legal description of the offence but also the facts underlying it”. The learned editor further opined that the information must be sufficient to allow preparation of a defence.  The United Nations Human Rights Committee’s General Comment 13/21 of 12 April 1984 [8] interpreted the right under Article 14(3)(a), the equivalent of Article 11(2)(a) of HKBoR, as the right to be informed of “both the law and the alleged facts on which” the charge is based.

39. Miss Lai referred us to several authorities on the requirement of the statement setting out the grounds on which committal is sought under Order 52 Rule 2(2).  In our judgment, a good starting point is the judgment of Sir John Donaldson MR in Chiltern District Council v Keane [1985] 1 WLR 619 at p.622.  The judgment was cited subsequently by Nicholls LJ in Harmsworth v Harmsworth [1987] 1 WLR 1676 at p.1682, a decision on which Miss Lai placed great reliance.  In Chiltern District Council v Keane, supra, Sir John Donaldson MR held that it was not sufficient to allege there was a breach of an order or an undertaking.  The test was formulated as follows:

“ … what is required is that the person alleged to be in contempt shall know, with sufficient particularity to enable him to defend himself, what exactly he is said to have done or omitted to do which constitutes a contempt of court.”

40. The Master of the Rolls also highlighted that the extent of particularity depends on the nature of the order which was alleged to be breached and the background of the case.  If the order covers a wide range of activities, the statement should set out the particular way in which the alleged contemnor had breached the same.  On the other hand, if the order could only be breached in one way, it might be sufficient to set out that the alleged contemnor was in breach of the order and the facts pertaining to it.  Thus, he said:

“ Every notice of application to commit must be looked at against its own background.

  …where the order is not in such a simple form and it is possible for the defendant to be in doubt as to what breach is alleged, then the notice is defective.”

41. In Harmsworth v Harmsworth, supra, Nicholls LJ applied this approach and further added at p.1683C to E that the following would not meet the test:

“ From the notice itself the person alleged to be in contempt should know with sufficient particularity what are the breaches alleged. A fortiori, in my view, where the document referred to is an affidavit, which does not set out particulars in an itemised form, but which leaves the respondent to the committal application to extract and cull for himself from an historical narrative in the affidavit relevant dates and times and so forth, and to work out for himself the precise number of breaches being alleged and the occasions on which they took place.”

42. His Lordship also said the contents of the notice are to be read fairly and sensibly: see p.1683E.

43. In Hong Kong, the Court of Final Appeal considered the sufficiency of an Order 52 Rule 2 statement in Kao, Lee & Yip v Koo Hoi Yan (2009) 12 HKCFAR 830 at [71] to [73].  Sir Gerard Brennan NPJ drew a distinction between the factual elements of the alleged contempt and the evidence to be relied upon to prove the same.  At [73], His Lordship cited the judgment of Lord Woolf MR in Nicholls v Nicholls [1997] 1 WLR 314 at 326 to support the exercise of discretionary power to dispense with a procedural requirement when it does not prejudice the contemnor in the context of contempt proceedings notwithstanding the strict enforcement of the relevant rules.

44. Applying these principles in the context of a judgment summons, in light of our analysis above on the legal basis on which a committal could properly be ordered, whilst the non-compliance with the order is usually clearly set out in the judgment summons as required under Form 23, the judgment creditor must also set out the factual basis for alleging that the creditor debtor has or has had the means to pay at the relevant time.  In this respect, we agree with Ms Yip and Miss Lai that the information contained in a judgment summons in Form 23 is inadequate. 

45. At the same time, we note that Article 11(2)(a) of HKBoR itself does not prescribe the manner in which the information of the charge is to be given.  In General Comment 13/21, the Committee was of the view that the information can be given orally.  As regards timing, the requirement in Article 11(2)(a) is that the information should be given promptly.  We can see that, unlike the prescribed procedure under Order 52, there is scope for the information to be contained in a document other than the judgment summons itself.  Thus, it is open to the Judge at a call-over hearing to give direction for a statement of the case to be served by a judgment creditor as Bodey J did in Mubarak provided that it is done at an early stage of the process and sufficient time is given to the judgment debtor to prepare for the defence.

D3.   The right to be present and be represented

46. Turning next to the right to have legal assistance and legal aid under Article 11(2)(d), Miss Lai referred us to the judgment of Wall LJ in Hammerton v Hammerton [2007] 2 FLR 1133 at [52] and that of Kwan JA in LWS v TNN (unreported) CACV 183 of 2010, 29 Jan 2014 at [39] to demonstrate how the right is engaged in the context of contempt proceedings in the Family Court.  The emphasis of Kwan JA was on the duty of the court to inform the alleged contemnor of the seriousness of the consequence and to invite him to consider arrangement for legal representation or legal aid.  On the other hand, Wall LJ placed more emphasis on providing legal representation for an alleged contemnor.

47. With respect, we prefer the approach of Kwan JA.  It should be noted that Article 11(2)(d) does not impose an absolute obligation to provide legal representation.  There is a right to be informed of the right to have legal representation paid by himself and, if he could not afford it, a right to seek legal aid.  It is only when the interests of justice so required and he does not have sufficient means to pay for it, legal aid should be provided.

48. In Hong Kong, we have a very generous legal aid scheme and legal aid is generally granted on the basis of means and merits in civil cases under the Legal Aid Ordinance Cap 91.  A Judge hearing a judgment summons should have regard to Article 11(2)(d).  We understand that in Hong Kong, there are usually call-over hearings before a committal application is dealt with substantively.  In order to comply with Article 11(2)(d), read in conjunction with Article 11(2)(b), the issue of legal representation should be addressed as early as possible.  It is worth considering that information of the rights to have legal representation and to apply for legal aid should be set out in writing in the prescribed form for the summons or another standard document to be served on a respondent together with the summons.  It is also advisable for a Judge to remind a judgment debtor of these rights at the first call-over hearing if he or she is not represented.

49. Ms Yip drew our attention to another aspect of Article 11(2)(d) which is not engaged in the present case.  The first part of Rule 87(5)(c) empowers the court to commit a person who failed to attend after an order had been made under Rule 87(5)(b) for attendance at a specified day and time.  Counsel submitted that this infringe the right of a person to be tried in his presence under Article 11(2)(d). 

50. In G v S, supra, Nazareth NPJ had this to say at [22] regarding an order made after the hearing of a judgment summons providing for warrant of committal be issued upon an affidavit of non-compliance being filed:

“ …It cannot be right that a judgment debtor in default should be simply deprived of his liberty and subjected to a term of imprisonment in that way. There might by that time be good reason why he should not be imprisoned. … The proper course would be at least for a Judge of the Family Court to assess the propriety of and to sanction the warrant…”

51. A fortiori, the same can be said with regard to the automatic committal of a judgment debtor on account of his absence.  There could be good reasons for his absence, e.g. he had not received notice of the appointment or he is met with sudden illness or other unforeseen circumstances.  This is particularly so when an order under Rule 87(5)(b) is also made in the absence of the judgment debtor.  Hence, it could well be the case that the court has never heard from the judgment debtor in relation to the judgment summons when he is automatically committed under the first part of Rule 87(5)(c).

52. In our view, whilst the repeated absence of a judgment debtor can justify the court to issue a warrant for his arrest and to have him brought before the court as soon as practicable after arrest, it cannot justify an automatic committal.  At the same time, if the court is satisfied that the judgment debtor failed to attend the hearing without good cause, it can conclude that the judgment debtor has waived his right to be present at trial and proceed to hear evidence of the judgment creditor and to determine whether a case for committal is established beyond reasonable doubt.  If the court is so satisfied, an order for committal can be made in the judgment debtor’s absence.

D4.   Segregation of the examination process and the committal process

53. We move onto the question whether the examination can be heard at the same time with the application for committal. In that respect, counsel submitted that having both matters heard at the same time is a breach of Articles 10, 11(1), 11(2)(a), (b) and (g).  The segregation of these processes as an aspect of the right to a fair trial was discussed in the English cases.  It is not necessary for us to repeat what had been thoroughly considered in those cases.  As explained below, we come to the clear conclusion that having the committal process heard at the same time as the examination process is unfair and incompatible with the right to a fair trial.

54. The purpose of an examination process is to facilitate a judgment creditor to obtain further information on the means of the judgment debtor.  If a judgment creditor already has sufficient information to establish beyond reasonable doubt that the judgment debtor has the means to pay, he should apply directly for committal of the judgment debtor. Examination is only useful when a judgment creditor does not have sufficient evidence to establish the means of the judgment debtor at the time of default. In the context of judgment summons in matrimonial proceedings, though the standard of proof is different, a judgment creditor usually would have some evidence on the means of the judgment debtor in the proceedings leading to the order for payment.  If the judgment debtor defaults soon after the making of the order, another round of examination is unlikely to be of much assistance in the majority of the cases.  However, if there has been a significant lapse of time between the date of order and the date of default, the financial position of a judgment debtor could well have changed.  In that kind of scenario, examination may be useful or necessary.  Other examples where examination may be useful are: when there is a material change of circumstances after the order for payment; when the judgment creditor has since discovered some new leads or some undisclosed assets or source of funds of the judgment debtor.  These are of course not exhaustive. 

55. In any event, the judgment creditor must take account of the information obtained through the process of examination in formulating the case on the means of the judgment debtor at the time of default, which as we have discussed earlier, should be part of the case of the judgment creditor and set out in the information required to be provided under Article 11(2)(a).  Until such information is available, the judgment debtor cannot properly prepare his defence and it cannot be fair to require him to answer the charge.

56. Seen in this light, the compression of the two processes into one undermines the guarantees in Article 11(2)(a) and (b).  At the start of the examination cum committal process, neither the judgment creditor nor the judgment debtor knows the case of the former on an essential element of the charge, viz the means of the judgment debtor at the time of default.

57. Further, there is a risk that the judge may overlook the point that the burden and standard of proof are different in the two processes.  One of the options available to the judge after examination is, pursuant to Rule 87(5)(a), to make a new order for payment.  It has not been thoroughly explored before us to what extent this is different from an application for variation.  Presumably, if the judge is satisfied after the examination that the judgment debtor has defaulted due to lack of means, at the very least he can give him more time to pay or order him to make such payment by instalments.  In that respect, the judge can quite properly put the burden on the judgment debtor to prove his lack of means on the balance of probability. But in the compressed proceedings for examination cum committal, this could easily be translated into the suspension of an order for committal, viz it would be the amount that the judgment debtor must pay (by the new date or by instalment) in order to have a committal suspended under Rule 87(6).  In so doing, the judge would have inadvertently reversed the burden of proof and applied the wrong standard of proof in the exercise of his power of committal.

58. Ms Yip brought our attention to the practice in the Family Court in reliance on that provision to order payment of all arrears accrued up to the date of order (as opposed to the arrears up to the date of the judgment summons).  The practice is apparently adopted to dispense with multiple judgment summonses being issued for ongoing arrears.  If an order of committal is made, the payment of this amount is set as the sum the judgment debtor must pay to have a committal suspended.  In our judgment, whilst we can see the utility of the practice in terms of the new order for payment in the examination process, as a matter of principle, there is a serious problem if this is adopted as well for the committal process.  The practice means that throughout the committal process, the charge is evolving.  To establish a case of default up to the date of the judgment summons, the judgment creditor needs to establish the means of the judgment debtor during the defaulting period. However, if further arrears were added in the course of the committal proceedings, it effectively means that the judgment creditor can commit the judgment debtor on his means after the judgment summons.  Thus, the charge is being constantly expanded and the judgment creditor can succeed even though he fails to establish the means of the judgment debtor for the pre-judgment summons period so long as he manages to establish the latter’s means for the post-judgment summons period.  This is a breach of Article 11(2)(a) and (b).

59. We shall discuss the rights under Article 11(2)(e) and (g) below.  But we are quite satisfied that even on account of Article 11(2)(a) and (b), it is not possible to have the examination and committal processes heard at the same time.  If the two processes are to be separated, it is plain that if examination is necessary, it should be heard before the committal process is brought.  Further, we are of the view that the committal should be brought by the issue of a fresh application and the judgment debtor should have the opportunity of considering the case against him and assessing whether he should give evidence himself or put forward other evidence by way of defence.  The court should be more focused on the real issue in the application for committal, namely, whether the judgment creditor establishes beyond reasonable doubt that the judgment debtor was able to satisfy the order for payment at the time of default.

D5.  Non-compellability and the right against self-incrimination

60. In Hong Kong, though the use of judgment summons as a means of enforcement is common in the Family Court, based on what we have come across in appeals (and the present case is a typical one, particularly in cases where all the parties acted in person at the court below), there is in many cases no examination by the judgment creditor.  It is also typical that after being served with a judgment summons, a judgment debtor will take out application for variation of the payment order and evidence on the means of the judgment debtor will be filed in that context.  In cases where the judgment creditor acts in person, examination is rarely conducted.  Even though the judgment creditor is unrepresented, it will not be appropriate for a judge to examine or interrogate a judgment debtor on his or her behalf.  Thus, effectively the only real application considered by the judge is an application for committal based on the evidence already before the court. 

61. However, as explained above, there are cases where an examination process is essential.  If it is necessary to obtain through the examination process evidence to advance or support a case of the judgment debtor having the means to pay, and the examination is to take place at a prior application instead of at the same time as the committal application, a number of human right issues can arise.

62. The right under Article 11(1)(g) is narrower than the common law privilege against self-incrimination as it is only confined to the committal proceedings itself, see A v Commissioner of ICAC (2012) 15 HKCFAR 362 [111].  Thus, if the examination stage is a separate process to take place when committal proceedings is not yet on foot, Article 11(1)(g) will not be engaged.  However, the wider common law privilege against self-incrimination [“PSI”] (which covers statements made in earlier proceedings under compulsion, as explained by Lord Mustill in R v Director of Serious Fraud Office, ex p Smith [1993] AC 1 at p.30-31) is also of importance and it should not be taken as readily abrogated except by clear words or necessary implication, see Pacific Harbor Advisors Pte Ltd v Winson Federal Ltd [2016] 6 HKC 14  

63. At the same time, it should be noted that PSI does not prohibit the use of documents disclosed in examination but came into existence independently, see Saunders v United Kingdom (1997) 23 EHRR 313 at 337-8 at [69]; HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133 at p.177; Koon Wing Yee v Insider Dealing Tribunal (2008) 11 HKCFAR 170 [81].  In HKSAR v Lee Ming Tee, supra, Ribeiro PJ said at p.177:

“ … the purpose of the privilege is to respect the will of the accused to remain silent, thereby ensuring that the accused is not compelled to provide proof of his or her guilt. The privilege has no application to provide evidence which exists independently of the will of the accused. …”

64. Thus, there is no difficulty in seeking discovery of documents relevant to the financial position of a judgment debtor in the examination process and to make use of them in the subsequent committal process.  PSI only applies in respect of the answers given by the judgment debtor under compulsion in the examination process.

65. On proper analysis, the common law immunity from being compelled to answer questions which may incriminate oneself in subsequent proceedings (as one aspect of PSI, and as discussed in Pacific Harbor Advisors Pte Ltd v Winson Federal Ltd, supra) is engaged in the examination process.  The question is whether such common law right has been abrogated by implication in respect of question relating to the means of a judgment debtor notwithstanding the real risk of subsequent committal proceedings and the tendency of his answers to expose him to such proceedings.

66. Even if it is concluded that such common law immunity is abrogated for the limited purpose of enforcement of maintenance orders in matrimonial cases, it will still be necessary to consider whether the compelled answers can be used in the committal stage in light of Articles 10 and 11(1).  This was explained by Ribeiro PJ in A v Commissioner of ICAC (2012) 15 HKCFAR 362 at [112]:

“ Articles 10 and 11(1) function quite differently[5]. They do not establish or entrench any privilege. Article 10 confers on a person faced with a criminal charge the constitutional right to a fair trial, and art 11(1) guarantees the presumption of innocence. In relation to an abrogated privilege against self-incrimination, these Articles come into play if use by the prosecution of the compelled answers or information constitutes a violation of those constitutional rights. Whether such a violation arises depends on the nature and scope of the compelled information and the use to which it is put. It is self-evident that these protections operate in a curial context.”

67. These rights do not prevent derivative use, see A v Commissioner of ICAC, supra at [118].  In other words, if a judgment creditor makes use of the answers given in examination to obtain other evidence (documentary or otherwise) from other sources to establish a case of the judgment debtor having the requisite means at the relevant time, it does not infringe any rights in Articles 10 and 11. 

68. Further, the Court of Final Appeal also held that the use of compelled answers in a criminal trial can be permitted if the proportionality test is satisfied, see [121] to [130], see also Kong Wing Yee v Insider Dealing Tribunal, supra, [83]; Brown v Stott [2003] 1 AC 681; Secretary for Justice v Latker [2009] 2 HKC 100. 

69. Following from the above analysis, these are the sub-issues we need to resolve:

(a)   Whether the rules abrogates PSI for the purpose of examination and if so, the extent to which it is abrogated; and

(b)   Whether a judgment creditor can use the answers obtained in an examination for the purpose of a committal process under a judgment summons in the enforcement of a judgment or order in matrimonial proceedings. 

70. The first sub-issue is whether (and the extent to which) common law PSI is abrogated by the rules in the context of an examination for the purpose of enforcing a judgment or order in matrimonial proceedings.  In addition to Rule 87, one must also take account of Order 48 as the definition of “judgment summons” in Rule 87(1) refers to the same.  Further Order 49B, which also serves the same purpose (see Poon Ting Chau v Wong Kwok Chi, supra, in which this Court approved the analysis of Chu J, as she then was, regarding the commonality of Order 48 and Order 49B and the immateriality of citing the wrong source of power in a summons) is also relevant as the sanction for an Order 48 examination is contained in Order 49B and the Family Court, as part of the District Court, enjoys the same power under Order 49B of The Rules of the District Court.  Actually, in substance Rule 87 contains most of the powers contained in Order 48 and Order 49B. 

71. The purpose and scope of an examination procedure are set out in Rule 87(2) which is substantially the same as Order 48 Rule 1(1).  The relevant purpose is to find out if the judgment debtor has any, and, if so, what other property or means of satisfying the judgment debt or order.  For this purpose, the court can order the production of any relevant books or documents in the possession of the judgment debtor.  The scope of the examination is circumscribed by this purpose. 

72. It is also clear from Rule 87(5)(b) and (c), like the power conferred under Order 49B Rule 1 (reinforced by Practice Direction 12.1 on warrants of arrests of judgment debtor), it is envisaged that the court should have coercive power to secure the attendance of a judgment debtor for examination, if necessary by the issue of a warrant of arrest. Though in the case of Rule 87(5)(c), the provision actually enables the court to make an order for imprisonment in case of non-attendance, for reasons explained above, we consider that it should be read down and it would be more appropriate to read it as a power to order the arrest of a judgment debtor as per Order 49B rule 1(1)(b).

73. Though it is not explicitly stated in Rule 87 and Order 48, given the purpose of the examination and that it could be used as evidence for the enforcement of judgment debts, the examination under these rules (like the one under Order 49B rule 1A) must be conducted on oath. 

74. There is no explicit provision in Rule 87 abrogating PSI in such examination.  However, we have no difficulty in coming to the conclusion that the scheme of the rules and their stated purpose must necessarily imply that a judgment debtor cannot refer to the real risk of committal for non-payment of judgment debt and plead PSI to avoid answering questions touching his or her means in the examination.  Otherwise, the whole scheme can completely be frustrated as every judgment debtor can raise such a plea and there is no way a judgment debt can be effectively enforced by means of this procedure. 

75. In this respect, the case of Pacific Harbor Advisors v Winson Federal Ltd, supra is completely different.  In that case, this Court (Lam VP and Barma JA) held that Order 49B does not abrogate PSI in respect of the risk of prosecution for a criminal offence which is entirely unrelated to the enforcement of the judgment debt in question.  It further held that, following the English Court of Appeal in R v K (A) [2010] QB 343, materials obtained in the process of examination could not be used in subsequent criminal prosecution for tax evasion.  But the court did not decide on the use of the materials for the purpose of making an order of imprisonment under Order 49B Rule 1B(1) since the issue did not arise for determination.

76. There is an obvious difference between criminal prosecution for an entirely unrelated offence (like tax evasion in those cases) and the imprisonment of debtor by way of enforcement of the judgment debt.  In respect of the latter, it is not correct to regard it as a criminal justice process.  The right of the judgment creditor is engaged as the right to have effective enforcement of a judgment is a facet of the right to a fair trial under Article 10, see Vrtar v Croatia (App No 39380/13); Shapovalova v Russia (App no 2047/03).  In Vrtar v Croatia, supra, the European Court of Human Rights held at [95] and [96]:

“ The Court reiterates its settled case-law to the effect that Article 6§1 of the Convention, inter alia, protects the implementation of final, binding judicial decisions, which, in States that accept the rule of law, cannot remain inoperative to the detriment of one party. … The State has an obligation to organise a system of enforcement of judgments that is effective both in law and in practice …

  Further, the Court notes that … it is up to the State to take all necessary steps, within its competence, to execute a final court judgment and, in so doing, to ensure the effective participation of its entire apparatus, failing which it will fall short of the requirements contained in Article 6§1 … ”

77. Though this Court in Secretary for Justice v FTCW [2014] 1 HKLRD 849 did not follow R v K (A), supra, in terms of the wholesale abrogation of PSI in matrimonial litigation, the Court did not exclude a limited abrogation of PSI for the specific purpose of enforcement of judgment debts. The Court specifically left that issue open at [78].  As shall be explained below in the discussion on the use of compelled answers in the committal proceedings, there are strong and legitimate social purposes for having examination and committal as part of the means of enforcement and such measures can pass the proportionality test with proper safeguards in terms of securing a fair trial for the judgment debtor. 

78. As explained in A v Commissioner of ICAC, supra at [111] proportionality is not at issue in terms of the statutory abrogation of common law PSI in the examination process.  It is simply a matter of statutory construction, see Pacific Harbor Advisors v Winson Federal Ltd, supra Given the symmetry in the purposes of examination and committal process, as explained above, if PSI by reference to the risk of committal for non-payment of the judgment debt can be relied upon to avoid answering questions at an examination, there cannot be any meaningful or effective use of the examination procedure.  The intention of the rules is clear: to provide a judgment creditor with the means to find out whether a judgment debtor has the means to pay the judgment debt by examination.  By necessary implication, such an enquiry must cover the same ground as that to be advanced in committal proceedings.  In the scheme of the rules, both Rule 87(5) and Order 49B rule 1B contemplate committal as an option.  Those enacting the rules must be aware of the potential penal consequences and deem it appropriate to provide the judgment creditor with the examination procedure as a means of enforcement. 

79. We therefore hold that common law PSI has been abrogated in the context of the examination process insofar as the risk of committal for non-payment of judgment debt is concerned. 

80. We come to the next sub-issue: the extent to which a judgment creditor can rely on the evidence obtained under compulsion in the examination to establish a case of contempt.  As observed by Ribeiro PJ, the rights of a judgment debtor in Articles 10 and 11(1) are engaged and such use should only be permitted if it can pass the proportionality test.  That test is well known in this jurisdiction.  In Koon Wing Yee v Insider Dealing Tribunal, supra, [83], in the context of derogation of these rights, Sir Anthony Mason NPJ cited the relevant test from HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133 at p.175A-C: the direct use of compulsorily obtained self-incriminating materials could be justified if it was not a disproportionate response to a serious social problem and “did not undermine the accused’s right to a fair trial viewed in the round”. 

81. In A v Commissioner of ICAC, supra, at [123], Ribeiro PJ referred to the three requirements in the test as: (1) legitimacy requirement; (2) rationality requirement; and (3) whether the means involves no greater an inroad than necessary upon the rights protected by Articles 10 and 11.

82. Undoubtedly, the effective enforcement of court orders and judgments is per se a legitimate aim.  Respect for the rule of law and administration of justice depends on the effectiveness of its process.  If the court cannot provide effective means for the enforcement of its judgment or order, confidence in the judicial process as the means to resolve dispute will be undermined and the community will degenerate into a state of chaos and lawlessness: see Chiu Luen Public Light Bus Co Ltd v Persons unlawfully occupying or remaining on the public highway (unreported) HCMP 3028 of 2014, 24 November 2014 [13] and [14].  Thus, it has been said that the inherent power of the court to commit persons in breach of its order to prison is founded upon the court’s constitutional duty to maintain a fair and effective administration of justice: see Ahnee v Director of Public Prosecution [1999] 2 AC 294 at 306, applied in Secretary for Justice v Cheung Kai Yin, supra at [21] to [23]. 

83. Further, in the context of matrimonial proceedings, there is a strong social need to provide for effective enforcement of maintenance judgments or orders.  It makes a mockery of the administration of justice if such judgments or orders can be allowed to go unsatisfied, leaving it to the social welfare regime to provide for the maintenance of divorced spouses and children.  Notwithstanding the availability of other means of enforcement, the stark and sad reality in our society (and Hong Kong is not alone in this regard judging from the experience in other common law jurisdiction like the United Kingdom and Australia[6] where judgment summons or similar procedure for imprisonment of judgment debtors adjudged by court to have the means to pay remain a means of enforcement) is that there are judgment debtors in matrimonial proceedings who try all sorts of means to avoid their responsibilities.  As submitted by Ms Yip, there are many cases where, despite the draconian nature of judgment summons and the use of committal is a last resort, is the only effective means of enforcement.  Counsel referred to cases where judgment debtor has no traceable asset and does not work within the jurisdiction.  Miss Lai did not advance any argument against the existence of this social need as a legitimate aim for the purpose of the proportionality test. 

84. In some respects, the need for such remedy in Hong Kong is more acute than other jurisdictions by reason of the high mobility of person and assets in light of her nexus with the mainland.  We have many judgment debtors in matrimonial proceedings who are either based in, or can easily relocate to the mainland.  Despite the reunification in 1997, there is as yet no reciprocal enforcement of judgments or orders made in matrimonial proceedings between Hong Kong and the mainland.  In many instances, there is simply no effective means of enforcement of the judgment other than the judgment summons procedure.  

85. In the context of enforcement of child maintenance order (and the present appeal is concerned with interim maintenance for children), another material distinction between Hong Kong and the United Kingdom is that we do not have the equivalent of the Child Support Act 1991. Under that Act, the Child Support Agency would take up the responsibility to arrange for the collection of child support and it has wider power of enforcement, including the disqualification of defaulting debtor from driving. In default of collecting the assessed child maintenance from the responsible parent, the Agency would make ex gratia payment under a voluntary compensation scheme: see Regina (Kehoe) v Secretary of State for Work and Pensions [2006] 1 AC 42; Kehoe v United Kingdom [2008] 2 FCR 461.  In Hong Kong, there is no government agency underwriting and pursuing child maintenance claims. The onus rests entirely upon the judgment creditor.  As explained above, sometimes it is necessary for the judgment creditor to resort to the information and answers obtained from the examination process to support effective enforcement by applications for committal.

86. The Kehoe case also illustrates that the civil right of a child to be maintained can be a basis for the engagement of the fundamental right of access to court.  In that case, Wall J (at first instance), Ward LJ (in the Court of Appeal) and Baroness Hale (in the House of Lords) held that the right was engaged notwithstanding the changes brought about by the Child Support Act.  The majority ruled otherwise.  However, since we do not have such change in Hong Kong, the judgment of Baroness Hale is more relevant.  In Regina (Kehoe) v Secretary of State for Work and Pensions, supra at [71] and [73], Her Ladyship said:

“…children have a civil right to be maintained by their parents which is such as to engage article 6 of the European Convention of Human Rights.

  … The children’s civil right to the benefit of the parental obligation to maintain them survives the 1991 Act.  …This is throughout a private civil right. …”

87. In our judgment, such fundamental right must be taken into account in assessing the overall proportionality of the judgment summons regime in Hong Kong.

88. The rational connection between the direct use of the compelled answers obtained from the examination process in the committal proceedings is self-evident in view of the symmetry of purposes in the two processes.  In cases where a judgment creditor has to resort to examination before embarking on committal application, the purpose of the examination is to gather information which would not be otherwise available to the judgment creditor.  Though in some cases, it may be sufficient for the judgment creditor to rely on documents obtained from the examination process (which would not infringe any common law PSI right, see above) without referring to the answers of the judgment debtor, there are cases where a judgment creditor would need to establish a case for committal on the basis of the answers.  The rational connection is not negated by the existence of cases where it may not be necessary to use such answers. 

89. We are of the view that the legitimacy and rationality requirements are satisfied. 

90. The third limb of the proportionality test is to examine whether the derogation of the fundamental rights is no more than is necessary to achieve the legitimate aim and it does not undermine the accused’s right to a fair trial viewed in the round.  In light of the following matters, we hold that this requirement is also satisfied:

(a)   These processes must be considered in the context that they are deployed as a means to enforce a judgment or order of the court and the judgment debtor already has his day in court in terms of the decision leading to the judgment debt;

(b)   The overall fairness of the committal process is safeguarded by recognising that the burden of proof remains on the judgment creditor (and the high standard of proof of beyond reasonable doubt), the segregation of the examination process, the committal process, the requirement that the judgment debtor must be promptly informed of the factual basis for alleging that he has or has had the means to pay and the right of legal representation and the availability of legal aid;

(c)   The judgment debtor will also know in advance what he has said in terms of answers given at the examination and if he so wishes, he can explain, supplement or clarify those answers in the committal proceedings;

(d)   The scope of examination (and thus the answers which a judgment debtor is compelled to give) is limited (though it is wider than those considered in A v Commissioner of ICAC supra, Brown v Stott, supra and Secretary for Justice v Latker, supra) and the extent to which it could be used in a criminal context is also limited to the committal process for enforcement of the judgment debt.  As held in Pacific Harbor Advisors v Winson Federal Ltd, supra, a judgment debtor can plead PSI in respect of risk of exposure to unrelated offences.  By this judgment we only hold that common law PSI is abrogated to the limited extent as stated out above.  Nothing said in this judgment should be read as justifying the use of compelled answers in criminal proceedings not related to the enforcement of the judgment debt;

(e)   Even if the court is ultimately satisfied that he has the means to pay, a judgment debtor can still escape imprisonment by paying the arrears if the court gives a direction under Rule 87(6) and he complies with the terms of suspension.  Bearing in mind the context of an application in a judgment summons (with its ultimate purpose in enforcing order for maintenance payment), with imprisonment being a last resort, it is only in exceptional circumstances that the court would not give such direction.  As a matter of practice, we understand that judges in the Family Court almost invariably give a direction to such effect, see YPC v SSHL [2016] 1 HKC 257 at [53] to [55] [7];

(f)    For situation where the judgment summons is the only effective means of enforcement, it is often the case that the means of a judgment debtor is solely within his or her knowledge.  If the compelled answers cannot be used, it would substantially frustrate the purpose of examination and the effective enforcement of judgment debts by this procedure;

(g)   Such limited derogation of the right against self-incrimination is less intrusive than the alternative solution of shifting the evidential burden of proof discussed by Thrope LJ and Mostyn J in the English cases (and advocated by Mr Tang for the Petitioner before us).  As explained earlier, in cases where there has been a considerable lapse of time between the making of the order for payment and the default, the shift of evidential burden may not be justified.

91. For these reasons, we conclude that the direct use of the compelled answers in the examination process in the committal proceedings satisfies the proportionality test, and the limited inroad into the right to a fair trial of a judgment debtor does not undermine his overall right in that regard. 

92. We are aware that in so holding, we do not follow the approach in England.  It appears from the English cases that it had been assumed in England that the use of materials obtained from an examination under compulsion would be incompatible with Article 6 of the European Convention.  There was not much discussion on the topic in the English authorities because soon after Mubarak, the English rules were amended on that basis.  In Mohan v Mohan [2014] 1 FLR , Thrope LJ proceeded on that assumption but held that it was sufficient for the judgment creditor to refer to the materials in the ancillary relief proceedings and the findings of the judge in making the order for payment in the first place and then the evidential burden would be shifted to the judgment debtor.  This led to the controversy on the extent to which one can rely on that proposition; see the judgments of McFarlane LJ in Prest v Prest [2015] EWCA Civ 714 and Mostyn J in Migliaccio v Migliaccio [2016] EWHC 1055. 

93. It would be presumptuous for us to comment on the English position.  However, we do not find it to be the right solution for Hong Kong.  With the greatest respect, though the approach of Thrope LJ is attractive, there is also force in McFarlane LJ’s reservation.  Thrope LJ did not appear to have taken account of the situation where there has been a long lapse of time between the date of the judgment or order and the date of default, during which the financial position of a judgment debtor may have changed. Also, the burden and standard of proof in committal proceedings are different from those in ancillary relief applications.  For the purpose of committal which requires proof beyond reasonable doubt, it may not be sufficient to rely on a general proposition that the judgment debtor should have applied for variation if his financial position has worsened to establish a prima facie case of means.  In the absence of statutory shift of evidential burden (and the constitutionality of such provision may also be doubted), and with the lapse of time and changes in the variable circumstantial factors in the financial affairs of a judgment debtor (particularly in the context of the majority of cases that comes before our Family Court as opposed to high profile cases involving wealthy parties), there is considerable doubt if the court can simply adopt as a general proposition that once the materials used in the ancillary relief application are placed before the court, the evidential burden will be invariably shifted to the judgment debtor.  It must depend on the facts in the case and the issues in dispute. 

94. Further, materials used in ancillary relief application are obtained under compulsion given the obligation to give full and frank disclosure of means.  Defaults in that respect could be redressed by a specific order of discovery or interrogatories (sanctioned by the possibility of contempt).  Such reasoning formed the basis of the decision in R v K (A), supra.  Viewed in that way, there is no valid distinction between materials deployed in ancillary relief application and the answers obtained in the post-judgment examination process. 

95. Since we are able to conclude that the direct use of compelled answers in committal proceedings satisfies the proportionality test and is therefore constitutionally sound, we respectfully prefer this solution to that adopted in England. 

D6.     The use of affidavit and hearsay evidence

96. Turning next to the right to examine witness under Article 11(2)(e), there is no absolute prohibition against hearsay evidence: see Daltel Europe Ltd v Makki [2006] 1 WLR 2704; Numeric City Ltd v Lau Chi Wing [2016] 4 HKLRD 812.  In the context of a committal on the ground of non-payment of judgment debt when the judgment debtor has the means to do so,  hearsay materials from the previous stage are likely to be materials obtained in the course of the ancillary relief application and the examination process in which the judgment debtor has the opportunity to examine the witnesses.  We cannot see any objection to the use of affidavit and hearsay materials provided that proper notice is given and the judgment debtor is granted the opportunity to further cross-examine the deponents on crucial controversial part of their evidence.

97. The use of findings in the previous judgments of the court is more problematic.  In light of the difference in burden and standard of proof, notwithstanding it is a judgment between the same parties, it may be arguable that the rule in Hollington v F Hewthorn & Co Ltd [1943] KB 587 is applicable, see also Secretary for Justice v FTCW [2014] 1 HKLRD 849 at [93] and [94].  The point has not been fully canvassed before us. Instead, Ms Yip said it would be rare that a judgment creditor would only refer to the findings without referring to the underlying evidence deployed in the underlying application.  We do not propose to engage in this point at length in this judgment other than making these observations.  In respect of the fact that a judgment or order had been made in favour of the judgment creditor against the judgment debtor, the parties are obviously bound by that judgment and order on the usual principle of res judicata in its strict sense. On the question whether the judgment debtor is in default in complying with such judgment or order, it is a matter of post-judgment or post-order event and must be substantiated by evidence from the judgment creditor.  That should not be difficult to establish in terms of defaults in paying maintenance or other judgment sums.  On the question whether the judgment debtor has the means to pay at the material time of defaults, this is usually the controversial aspect in an application for committal and the findings of a judge in an earlier judgment on different burden and standard of proof cannot per se be evidence for discharging the onus of the judgment creditor in the application of committal.

E.    Remedial interpretation and proper procedure

98. Having arrived at the above conclusions regarding the implications of Articles 10 and 11 of HKBoR on the existing judgment summons procedure as prescribed under Rule 87, we are of the view that the existing procedure is not compatible with the fundamental fair trial rights of a judgment debtor in the following respects:

(a)   The examination process is heard at the same time with the committal process;

(b)   There is no safeguard in terms of the judgment debtor, who is subject to the potential risk of being committed to prison,  being informed of the nature and cause of the charge against him;

(c)   The reference in Rule 87(5)(c) and Form 23 to the judgment debtor showing cause reverses the burden of proof and infringes Article 11(1).  Though this had been ameliorated by binding decisions from this Court holding that the burden of proof is on the judgment creditor and the standard of proof is beyond reasonable doubt, the reference to the judgment debtor showing cause should be removed from the rule and the form;

(d)   The automatic committal under Rule 87(5)(c) of a judgment debtor who fails to appear despite being ordered to attend court is incompatible with Article 11(2)(d);

(e)   The practice of expanding the scope of a judgment summons by including ongoing arrears in the amount in default may be adopted for the examination process and a new order can be made under Rule 87(5)(a) at the conclusion of the examination process.  But it cannot be adopted for the committal process as it would infringe Article 11(2)(a) and (b).

99. We therefore hold that, as it stands, Rule 87 has features which are incompatible with the HKBoR.  We shall next consider whether a remedial interpretation may be applied to this rule to render it constitutional.  The relevant law and principles on remedial interpretation were discussed recently by this Court in Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise [2016] 2 HKLRD 1372 at [94] to [97]. For present purposes, it suffices for us to cite [97]:

“ For present purposes, the following propositions derived from Ghaidan v Godin-Mendoza, supra[8] are germane,

(a) Subject to the limitations in (c) and (d) below, the court can exercise the power of remedial interpretation to depart from the unambiguous meaning of the legislative provision in order to give a Basic Law compliant effect to the same;

(b) In adopting a remedial interpretation, the court can interpret language in a statutory provision restrictively or expansively. It can also read in words which change the meaning of the provision;

(c) However, the court cannot adopt a meaning inconsistent with a fundamental feature of the legislative scheme or its essential principles. Whether an element in the statutory provision constitutes a fundamental feature or essential principle must be determined with regard to its place in the overall scheme of the legislation;

(d)  Remedial interpretation does not empower the courts to make decisions for which they are not equipped such as choosing between various options which requires legislative deliberation or adopting a meaning which has important practical repercussions which the court is in no position to evaluate.”

100. We do not regard the offending features identified above as fundamental or essential to the judgment summons procedure.  The clear legislative intent underlying this procedure is to foster the effective enforcement of orders and judgments.  As discussed above, the segregation of the examination process from the committal process would not diminish the effectiveness of the procedure as a whole though more steps would have to be taken in order to protect the fair trial rights of a judgment debtor.  The courts in Hong Kong have long recognized that in an application for committal in the context of Rule 87 the burden of proof is on the judgment creditor and the standard of proof is beyond reasonable doubt.  We cannot see how it can be suggested that the unfortunate reference in Rule 87(5) and Form 23 to the judgment debtor showing cause is a fundamental element in the overall scheme of this procedure. 

101. Nor do we see any objections to adopt the remedial interpretation postulated below as the exercise of judicial power to make decisions which we are not equipped to make.  Ms Lai did not put forward any submissions in this regard.

102. We shall now set out the manner in which we would read down and read into Rule 87 to render it compatible with Articles 10 and 11 as analysed above.

103. In the interpretation section of Rule 87(1), to segregate the examination process from the committal application, the definition of “judgment summons” should be read as meaning “a summons issued under an order made under R.H.C.  Order 48, rule 1(1) requiring a judgment debtor to appear and be examined on oath as to his means (“Examination Summons”); or a summons for committal issued under R.H.C.  Order 52 (“Committal Summons”)”.

104. Rule 87(2) should be read as confining to the examination process, thus the word “summons” in that sub-paragraph should be read as referring to an Examination Summons. 

105. Likewise, Rule 87(3) should be read as governing only the examination process, thus “judgment summons” should be read as referring to an Examination Summons.   Similarly, in Form 22, the reference to “judgment summons” in Rule 87(3) in the phrase “I apply for the issue of a judgment summons against …” shall be read as a reference to the Examination Summons.

106. In respect of a Committal Summons, subject to specific provisions to the contrary in Rules 87 and 88, the procedure in Order 52 of the Rules of the High Court are applicable. 

107. Hence, the judgment creditor must apply ex parte to a judge for leave to apply for an order of committal.   The leave application must be supported by:

(1)  A statement as provided by Order 52 rule 2(2) setting out the name and description of the judgment creditor, the name, description and address of the judgment debtor sought to be committed, the terms of the order which the debtor has defaulted, the particulars of the default, and the factual basis showing that the debtor (a) has or has had since the date of the order the means to pay the sum in respect of which he has made default; and (b) has refused or neglected, or refuses or neglects, to pay the sum (“the Statement”); and

(2)  An affidavit as provided by the same rule 2(2) verifying the facts relied on as set out in the Statement (“the Supporting Affidavit”), together with all the exhibits relied on which must include a copy of the order.

108. After the court grants leave, the judgment creditor shall issue a Committal Summons in accordance with Order 52 rule 3(1) setting out the grounds in respect of which leave for making an application for an order of committal has been granted. 

109. To facilitate the segregation of the two processes and to provide for the two different applications, Rule 87(4) should be read in the following manner:

(1)  Subject to (2) below, Rule 87(4) only applies to an Examination Summons, which shall be in Form 23 (as modified to comply with the presumption of innocence).  The modification takes the form of removing at the end of the third paragraph in the prescribed form the words “and also to show cause why you should not be committed to prison for such default”.

(2)  Other than the requirement of payment of travelling expenses, which applies also to a Committal Summons, Rule 87(4) does not apply to a Committal Summons and Form 23 is not to be used for a Committal Summons.  The content and service of a Committal Summons shall follow Order 52 rule 3(1A) and rule 3(1) respectively.

(3)  Where the judgment summons is a Committal Summons, a copy of the Statement and the Supporting Affidavit together with the exhibits are required to be served at the same time with the Committal Summons.

110. In light of our conclusion at [98](e) above, Rule 87(5)(a) shall be read as only applicable to an Examination Summons but not a Committal Summons. 

111. Further, Rule 87(5)(c) should be read as providing:

(1)  When the judgment debtor fails to appear at the adjourned hearing as directed, the court may only issue a warrant of arrest.

(2)  The rest of that sub-paragraph, namely, the words “or where the judgment debtor attends but fails to show cause why an order of commitment should be made against him make an order for the commitment of the judgment debtor” shall be struck out.

112. The following shall be read into Rule 87, namely:

“ In determining a Committal Summons, where the court is satisfied that the judgment debtor –

(a) has or has had since the date of the order the means to pay the sum in respect of which he has made default; and

(b) has refused or neglected, or refuses or neglects, to pay the sum,

it may, in its discretion, make an order of commitment against the judgment debtor.”

113. Following from the analysis and the remedial interpretation we give to rule 87 above, there is an urgent need to revise the current practice for the judgment summons regime.  The best way forward is of course to amend Rule 87.  But unfortunately, experience shows that such a course is likely to take considerable time.  Pending legislative amendments, it would be necessary to issue a practice direction to set out the proper practice.  We urge the judge in charge of the Family Law List in the High Court and the judges in the Family Court to give the matter immediate attention and to issue practice direction setting out the procedures for the judgment summons regime having regard to Articles 10 and 11 of HKBoR.  The Family Court should also consider publishing leaflets and standard forms to assist and guide litigants in person in applying and defending judgment summons.  In this connection, the Director of Legal Aid would also have to review the current policy of not providing representation in judgment summons. 

F.    The present appeal

114. We turn lastly to deal with the present appeal.

F1.  Proceedings leading to the issue of the judgment summons

115. The petitioner and the respondent were married in January 2005 and have a son and a daughter born in 2005 and 2009 respectively.  Upon the petitioner’s petition, a decree nisi was granted on 20 July 2014.  By order dated 17 September 2014, the petitioner was given the care and control of the two children with reasonable access to the respondent.  The ancillary relief proceedings are pending. 

116. After a contested hearing, His Honour Judge CK Chan made a maintenance pending suit (MPS) order on 21 June 2013, ordering the respondent to pay $20,000 each month as MPS maintenance for the two children, commencing on 1 July 2013 (“MPS Order”).  The respondent made payments for July and August, but has since September 2013 failed to comply with the MPS order.  It is not disputed that at the hearing before the Judge in October 2015, the arrears ran up to $520,000.

117. About two months after the making of the MPS Order, the respondent applied by summons filed on 13 September 2013 to set aside the MPS Order.  In his affirmation in support of the application, the respondent set out six principal grounds for his application, namely, (a) He was dismissed by his employer on 31 July 2013 and has since become unemployed with no income; (b) He had to pay RMB33,000 per month as mortgage repayments of the former matrimonial home in Shenzhen (“the Shenzhen Property”).  The petitioner had taken the RMB 3,280,000 mortgage loan and refused to return it; (c) He had to repay a loan due to his former employer; (d) He had to sell the Shenzhen Property to reduce his financial burden; (e) He had no other asset: and (f) The judge misunderstood the facts of the case in that he did not have valuable personal properties in the net worth of RMB$ 1,800,000 (see 4 March 2014 judgment at [9]).

118. The application was heard by Judge Chan, when both parties were legally represented.  By judgment handed down on 4 March 2014, Judge Chan dismissed the application.  In short, Judge Chan held that grounds (b) and (e) were repetitions of the respondent’s arguments in opposition to the MPS application, which he had considered in making the MPS Order.  For reasons given at [19] to [21], the judge rejected the respondent’s claim of having been dismissed from employment as being incredible.  Further, in dealing with ground (f), Judge Chan pointed out that a major consideration underlying the making of the MPS Order was the position occupied by the respondent in the family company, and the support he has from the family business.

F2.   The petitioner’s judgment summons and the respondent’s variation summons

119. On 1 August 2014, the petitioner filed a praecipe for the issue of a judgment summons in the prescribed form (Form 22) on account of the respondent’s default and refusal to pay the children’s MPS as ordered for the period commencing 1^st September 2013.

120. On 14 August 2016, the petitioner issued a judgment summons in the prescribed form (Form 23) summoning the respondent to appear personally in court on 10 October 2014.  The amount of default stated in the judgment summons was $220,000.  At the adjourned hearing on 10 July 2015, the judgment summons was further adjourned to 26 August 2015. By this stage, both parties had become unrepresented.

121. On 20 August 2015, shortly before the next hearing of the judgment summons, the respondent issued a summons applying to set aside the MPS order with effect from 1 September 2015, and to temporarily stay the payment of the outstanding MPS pending the completion of the sale of the Shenzhen Property[9] by the mortgagee bank (“the variation summons”). 

122. In his affirmation filed on the same day, the respondent supported his variation application on the grounds that: (a) He has been unemployed since leaving his previous employment in 2014; (b) He was on 19 August 2015 diagnosed to be suffering from insomnia, high blood pressure and other health issues; (c) He has financial difficulties and is relying on his brother, sister and brother-in-law for support; (d) The jewellery business is not a family business; it is personally owned by his brother and brother-in-law, in which he has no interest; and (e) Since he cannot make the mortgage repayments, the bank had applied to court to auction the Shenzhen Property.  The respondent proposed to pay the outstanding MPS out of the balance of the proceeds of sale. 

123. Pausing here, it can be readily seen that the grounds for the variation summons substantially overlap with those for the earlier setting aside application, which had been rejected by the court.

124. Both the judgment summons and the variation summons came before the Judge on 26 August 2015, and were adjourned to 14 September 2015 when they were further adjourned to 26 October 2015.  Primarily, these adjournments were to enable the respondent to reach agreement with the petitioner on ways of paying up the outstanding arrears through selling the Shenzhen Property.  As a result of proceedings taken out by the petitioner in the Mainland, the property was subject to a freezing order.  According to the respondent, due to his default in making mortgage repayment, the bank was in the process of applying to the court to auction the property.  He estimated that after repaying the bank, there would be a surplus of about $3 million.  The petitioner had proposed to sell the property by private treaty in order to fetch a better price.  The Judge therefore adjourned the hearings so that the parties could agree on the mechanism of selling the property to pay off the arrears, and for the balance of the proceeds of sale to be paid into court to provide for the children’s MPS pending the resolution of the ancillary relief application.  Despite the adjournments, however, no agreement could be reached as the respondent preferred to have the property sold by the bank and was ambivalent about paying the balance of the proceeds of sale into court.

F3.  The committal order

125. At the resumed hearing on 26 October 2015, after being informed that there was no agreement on the payment of the arrears, the Judge indicated that he would proceed with the hearing of the judgment summons.  The respondent gave evidence under oath.  The Judge made a committal order against the respondent, committing him to prison for a term of three months on account of his contempt of the MPS Order.  The Judge ordered at the same time that the respondent may be released upon payment of $520,000, which was the total amount of arrears calculated up to the day of the hearing, together with costs of $1,000.

126. On 29 October 2015, the respondent acting through solicitors issued the present appeal.  On 11 November 2015, the Court of Appeal heard the respondent’s bail application.  The respondent was granted cash bail in the sum of $200,000.  

F4.   Grounds of appeal

127. The Amended Notice of Appeal raised the following grounds:

(1)   There were procedural irregularities in the hearing process leading to the making of the committal order in that:

(a)   There had been a reversal of the burden of proof and a wrong standard of proof was applied;

(b)  The judgment summons did not disclose reasonable grounds for committing the respondent to prisons;

(c)   The respondent’s privilege against self-incrimination was infringed, and the presumption of innocence was disregarded; and

(d)  The Judge failed to safeguard the respondent’s right to legal representation.

(2)   The Judge erred in not dealing with the respondent’s variation summons first before proceeding to hear and determine on the committal application under the judgment summons.

(3)   The committal order that was drawn up was deficient and defective in failing to state: (a) the matter of contempt; (b) the affirmation(s) considered by the Judge in making the order.

(4)   The sentence of three months’ imprisonment was manifestly excessive and wrong in principle.

F5.   1^st ground of appeal – procedural irregularities

128. In respect of the first ground of appeal, as we have noted earlier, although the judgment summons summoned the respondent to attend before the court to be examined on his means to pay the MPS Order, and also to show cause why he should not be committed to prison for his default, it is evident from the transcript of the hearing that there was no examination of the respondent, and the proceedings before the Judge were effectively committal proceedings.  This is perhaps not surprising given that evidence relating to the respondent’s ability to pay the children’s MPS in the period of default covered by the judgment summons had been filed in the respondent’ earlier application to set aside the MPS Order, and the application was determined only a few months before the issue of the judgment summons.  We would further observe that while committal should be a procedure of last resort, in light of the serious default by the respondent and the litigation history outlined above (see [113] onwards), the petitioner cannot be criticised for making a committal application.

129. As an application for committal, the petitioner bears the burden of proving beyond reasonable doubt that the respondent has failed to comply with the MPS Order and that he had the means to pay.  In this connection, there are several problems in the process leading up to the Judge’s committal order. 

130. Firstly, in respect of the judgment summons itself, we have in the early part of this judgment (at [37] and [98]) concluded that the prescribed form (Form 23) in requiring the respondent to show cause “why he should not be committed to prison” for his default has the effect of reversing the burden of proof and is incompatible with Article 11(1) of HKBoR. 

131. Secondly, as we have also observed (at [44]), insofar as it serves as a statement to set in motion the committal proceedings against the respondent, it is insufficient for the judgment summons to set out only the fact of non-compliance with the MPS Order, without also setting out the factual basis for asserting that the respondent had the means to pay at the relevant time.  The judgment summons presently worded has failed to inform the respondent of the precise case against him, and therefore falls short of meeting the requirement of Article 11(2)(a) of HKBoR.

132. Thirdly, probably because of the wording in the judgment summons and Rule 87(5)(c) and also with a view to impressing upon the respondent the importance of due compliance with the MPS Order, at the 26 August, 14 September and 26 October 2015 hearings the Judge had repeatedly told the respondent that unless he could adduce cogent evidence to convince the court that he had good reasons for not paying the MPS as ordered, he would be committed for contempt of court.  Unfortunately, the impression and the effect that flowed from the Judge’s approach was a reversal of the onus of proof and displacement of the presumption of innocence, contrary to Article 11(1) of HKBoR.   

133. Fourthly, it would also appear that the Judge proceeded on the basis that the earlier decisions of HH Judge CK Chan on the MPS application and the respondent’s application to set aside the MPS Order per se afford sufficient basis for a committal order.  At the 26 August 2015 hearing, for instance, the Judge pointed out to the respondent that he did not have any defence to the committal application given HH Judge CK Chan’s finding that he had the means to pay the MPS (Bundle D, p579G-I).  Similarly, at the 14 September 2015 hearing, the Judge went into some details of the previous decisions, observing that the respondent’s claim of no ability to pay had already been disbelieved and that this was what led to the committal application (Bundle D pp 574J–576L). 

134. However, the fact that the respondent was disbelieved when the MPS Order was made or when his setting aside application was dismissed does not necessarily mean that the court in a later committal application could not reach a different conclusion on his ability to pay at the material time.  Further, as we observed in [96] and [97] above, while there is no objection to the deployment in committal proceedings of affidavits and hearsay materials available from previous applications, owing to the difference in burden and standard of proof in committal proceedings, HH Judge CK Chan’s dismissal of the setting aside application or his findings on the respondent’s means to pay at the material time per se will not be sufficient to discharge the petitioner’s onus in the committal application (see [97]). 

135. In our view, at the initial stage of the committal application the Judge should have directed the petitioner to serve on the respondent a statement of her case on the respondent’s ability to comply with the MPS Order at the material time since this had not been set out in the judgment summons.  The petitioner should also have been directed to identify from materials filed in previous applications and/or file fresh evidence that she would rely on in support of her application.  The respondent should have then been afforded reasonable time to respond to it, including filing and serving evidence in opposition.  After the petitioner has an opportunity to reply to the respondent’s defence and evidence, the committal application would then be heard in open court in accordance with the procedures and the burden applicable to an Order 52 application. 

136. We, however, do not agree that the respondent’s right to legal representation had been undermined. As Mr Tang for the petitioner has pointed out, the respondent has for a significant part of the matrimonial and ancillary relief proceedings been represented by solicitors and counsel.  It also appears from what he told the Judge at the hearings on his variation summons and the judgment summons that he has been receiving legal advice in connection with the proceedings between the parties in the Mainland.  Looking at the circumstances as a whole, we believe the respondent was throughout aware of his right to have legal advice and representation, and was in a position to access legal advice.  The Judge had also made it very clear at the various hearings that the committal application carried serious consequences and the prospect of imprisonment.  Given that the judgment summons had been adjourned several times, there would have been sufficient opportunity for the respondent to seek legal advice or obtain legal representation, had he so wished.  As we have observed (at [47]), Article 11(2)(d) of HKBoR does not impose an absolute obligation to provide legal representation. Although the Judge had not specifically reminded the respondent to consider legal representation, in the circumstances of this case, we do not consider there has been a violation of the right under Article 11(2)(d).

137. In summary, other than the complaint on the right to legal representation, we are of the view that the first ground of appeal is made out. 

F6.   2^nd ground of appeal – the respondent’s variation summons

138. We turn next to the second ground of appeal which complains that the Judge failed to deal with the respondent’s variation summons.  The respondent issued the summons on 20 August 2015, a few days before the adjourned hearing of the judgment summons on 26 August 2015.  The Judge dealt with both applications at the hearing and adjourned them to enable the parties to have legal advice and to reach agreement on the manner of selling the Shenzhen Property so that the outstanding and future MPS could be paid out of the proceeds of sale.  Given that the parties were in the process of attempting to reach agreement on the payment of the MPS, the Judge’s approach is both understandable and appropriate. 

139. At the hearing on 26 October 2015, the respondent made it clear he was not prepared to cooperate in bringing about a private sale of the Shenzhen Property, preferring the less desirable option leaving it to a forced sale by the bank.  The Judge understandably was not impressed.  He proceeded to hear the committal application and eventually made the committal order.  The respondent’s variation summons was not dealt with.  This is inappropriate. 

140. In our view, the respondent’s summons, especially the application for a temporary stay of the payment of the outstanding MPS pending the completion of the sale of the Shenzhen Property, should have been heard and resolved before dealing with the committal application.  If the application was allowed, there would not be any need to proceed with the committal application.  If it was refused, and the committal application was to be proceeded with, the court would then direct the petitioner to file and serve a statement of her case together with the supporting evidence, and make other consequential directions before restoring the judgment summons for hearing in open court.   

F7.   3^rd ground of appeal – the committal order

141. The third ground of appeal complains that the committal order that was drawn up was defective in failing to comply with the prescribed form for a committal order (see Form 85, Appendix A, The Rules of the District Court).  As a matter of fact, what was drawn up was not a committal order, but was a warrant of arrest and committal (逮捕及交付羈押令).  This is unsatisfactory.  A committal order in the form prescribed by Form 85, setting out the contempt that the respondent was found guilty of, the evidence relied upon by the Judge in making the order and the terms on which the respondent may be released from custody, should have been drawn up.  There should also be a warrant for committal in the prescribed form (Form 85A, Appendix A, The Rules of the District Court).

F8.   4^th ground of appeal – the sentence

142. The fourth ground of appeal relates to the sentence of three months’ imprisonment imposed by the Judge, which was said to be manifestly excessive and wrong in principle.  In the light of our decision on the other grounds of appeal and that we will be setting aside the committal order, this ground does not arise for determination.  We would observe however that in a case of serious default in complying with a child maintenance order, had the contemnor been found to have the means to pay but refused to pay, it is neither wrong in principle nor excessive to pass an immediate custodial sentence in the tune of three months.

F9.   Outcome of the appeal

143. For the above reasons, we are of the view that the appeal should be allowed and the committal order made by the Judge should be set aside.  We are further of the view that the judgment summons and the respondent’s variation summons should be remitted back to the Family Court for determination before another judge having regard to the principles and procedures discussed in this judgment.  As stated above, the Family Court should hear the respondent’s variation summons first, and depending on the outcome, the committal application may be restored for hearing with directions for filing the necessary Statement in support of the committal application.

144. Miss Lai has argued that the matter should not be remitted back to the Family Court because this would infringe the double jeopardy principle.  While we accept that the criminal law doctrines of autrefois convict and acquit, which underline the double jeopardy principle, apply to contempt proceedings, we do not agree the double jeopardy principle is engaged in the present context. Although the Judge had made a committal order against the respondent, who was briefly in custody before being released on bail, the committal order is set aside upon this appeal being allowed. The determination of the judgment summons and the committal application remains at large since we have not dismissed or otherwise disposed of the judgment summons. The discussions in Arlidge, Eady & Smith on Contempt (4^th ed) §§3-222 to 3-225, which concern the institution of fresh committal proceedings after an application for committal for contempt has been dismissed, have no application.

F10. Disposal of the bail money and other consequential directions

145. As to the disposal of the bail money now standing in court and related consequential directions, Miss Lai and Mr Tang have indicated that they wish to make further submissions in this regard.  We therefore direct that either party may within 14 days after the handing down of this judgment provide written submissions together with proposed consequential directions, and may (if so wish) provide reply submissions within the next 7 days.

F11. Costs

146. We make an order nisi that: (1) the costs of the applications below be in the cause of the variation summons and judgment summons respectively; and (2) there is no order as to the costs of the appeal.  We further order that the petitioner’s own costs be taxed in accordance with the Legal Aid Regulations. 

F12. Disposition

147. The orders that we make in this appeal are as follows:

(1)  The appeal is allowed.

(2) The committal order of the Judge is set aside.

(3)  The judgment summons and the respondent’s variation summons are remitted back to the Family Court for determination before another judge, with the variation summons to be heard before the judgment summons.

(4)  Within 14 days from the handing down of this judgment, both parties may lodge written submissions, together with a draft order, dealing with the disposal of the bail money standing in court and other related consequential directions. 

(5)  Within 7 days thereafter, both parties may (if so wish) lodge written reply submissions.

(6)  There is an order nisi that:

(a)  The costs of the applications below be in the cause of the variation summons and judgment summons respectively; and

(b) There is no order as to the costs of this appeal.

(7)   The petitioner’s own costs be taxed in accordance with Legal Aid Regulations.

G.  Postscript

148. As we said at the beginning of this judgment, judgment summons are being used very frequently in the Family Court and we see the social needs for such procedure notwithstanding its draconian nature. For the reasons we have explained, the procedures have to be modified in light of the development in human rights law.  It is hope that by this judgment, the new procedure set out in Part E above could provide a workable regime which is fair to all the parties involved.  It has not been an easy exercise and we wish to express our gratitude to Ms Yip, Ms Lai and Mr Tang for their valuable and thorough assistance in this appeal.