YCKS v. MPKC

FCMC 5771 / 2018

[2018] HKFC 202

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 5771 OF 2018

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

BETWEEN

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

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

J U D G M E N T

(Committal)

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

Introduction

1.  The petitioner (“mother”) took out a summons on 20 August 2018 for an order to commit the respondent (“the father”) to prison for his contempt of my order dated 27 April 2018 to pay maintenance pending suit to the petitioner (“the committal summons”).

Relevant case history

2.  The parties’ related case was FCMC 8480 of 2015. The parties consented to issue a new petition on the ground of 2-year separation in this new suit. As at the date of hearing, decree nisi has not been granted.

3.  The mother and the father have four children, namely, the eldest brother (“child C”); younger brother (“child R”), younger sister (“child L”) and the youngest brother (“child T”).  The order of custody, care and control, access was granted on 28 February 2018 in FCMC 8480 of 2015 after trial.  The mother was granted sole custody, care and control of the 4 children of with reasonable access of child C and child R; defined access of child L and child T to the father.

4.  As a recap of the history of maintenance pending suit in the  related case FCMC 8480 of 2015, the order dated 27 April 2018 was given after trial of the mother’s application to vary the same against an maintenance pending suit order granted by HH Judge Bruno Chan (as he then was) dated 20 May 2016 (“the varied MPS order”).  

5.  I shall refer to paragraph 2 – 4 of my judgment as follows:

“2. The Petitioner (“the mother”) took out a summons on 20 October 2016 to vary the maintenance pending suit granted in the Order of His Honour Judge Bruno Chan (as he then was) dated 20 May 2016 (the “MPS Order”).

3. In the MPS Order, the father was ordered to pay maintenance pending suit at HK$4,800 for the Petitioner and HKHK$35,200 for four children of the family. It was further ordered in paragraph 2 thereof, such order was made on an ex-parte basis without prejudice to the father’s right to oppose or to apply to set aside the MPS Order at a later date.

4. The father took out a summons for variation on 28 June 2016, in that he sought an order to vary the MPS Order to a reasonable sum. In the hearing on 30 June 2018, both the mother and the father’s summonses be adjourned sine die, with liberty to restore. On 28 November 2017, the mother took out another summons to restore the summons filed on 20 October 2016. On 13 December 2017, I so directed the mother to proceed with the said summons. The father made no application to restore his summons.

6.  In other words, the father did not restore his variation of maintenance pending suit summons.

The committal application

7.  The subject of the committal summons was the father’s failure to pay maintenance pending suit after the trial of the mother’s variation of maintenance pending suit application. The varied MPS order was as follows:  (i) the father to pay the mother HK$92,000 as monthly maintenance pending suit; (ii) backdated payment of HK$400,000 to the mother being school fees of the 4 children of the family. I specifically ordered penal notice be endorsed and personal service is required.

8.  The father failed to comply with order, he did not pay the amount of MPS as ordered save he has paid HK$72,000 rental payment of the matrimonial home directly to the landlord.  The mother’s solicitors confirmed, as at the date of this hearing, the outstanding sum is [(HK$92,000 x 7 months) + HK$400,000 – HK72,000]] = HK$972,000.

9.  The father failed to appear in the call over hearing of the committal summons on 3 October 2018 and I adjourned the committal summons for substantive hearing on 6 November 2018. The father appeared. During the adjournment on 24 October 2018, the mother applied for a prohibition order against the father and I had granted such order on 25 October 2018.

10.  The mother filed the notice for leave apply for committal proceedings on 28 May 2018 for non-compliance of the varied MPS order. The mother deposed in her 9^th affirmation filed on 28 May 2018 that the father had failed to comply with the order dated 14 March 2018 in which the father was ordered to file an answer to the mother’s 2^nd questionnaire filed on 16 March 2018. Nevertheless, the mother has not included this in her “amended statement in support of the application for leave for an order of committal”[1]. The basis for committal shall be limited to the non-compliance of the varied MPS order.

The parties’ current situation

11.  The mother is a housewife, she has been taking care of 4 children of the family with a domestic helper (who has resigned now). The mother said the father was not paying maintenance to her and the children. She is running short of money for both food and school fees. She has to live on loans from friends. The father said he was unemployed and was living on loans and with the assistance of his brother.  

The legal principles

12.  In YKL v. YCF, FCMC 14949 of 2013, Deputy Judge I. Wong (as he then was) stated the principles for committal as follows:

“Civil Contempt

17. It is trite that contempt proceedings are regarded as quasi criminal proceedings because the liberty of the contemnor is at stake. The applicant must prove to the criminal standard, ie beyond reasonable doubt, both the act claimed to constitute the contempt and the alleged contemnor’s requisite state of mind, and there is no difference between civil and criminal contempts in this regard: Hong Kong Civil Procedure (2016), at § 52/1/17)

18. The present proceeding is a civil contempt. As has been commented by Hong Kong Civil Procedure (2016) at § 52/1/16.

“The proper approach to committal for civil contempt by reason of breach of a court order is a three stage test, namely, it is necessary to (1) construe the relevant court order to ascertain its meaning and operation (2) then determine whether the defendant has in fact complied with the order as so construed and (3) finally consider whether any failure to comply was accompanied by a state of mind necessary to establish punishable contempt (Kao, Lee & Yip v. Koo Hoi Yan (2009) 12 HKCFAR 830 at 846B–C, per Sir Gerard Brennan N.P.J.; Effiscient Ltd v. Edward Eugene Lehman [2013] 3 H.K.C. 300, CA, at 305I–306A, per Fok J.A.; GE Transportation (Shenyang) Co. Ltd v. Lu Jinxiang (HCMP 1792/2013, 22 January 2014) at para. 23, per M. Ng D.H.C.J.).”

……

38. I need to consider whether R’s failure to comply was accompanied by a state of mind necessary to establish punishable contempt.  The law is that it is not necessary to prove the alleged contemnor’s conduct was contumacious, ie that he directly intended to disobey the order: it is sufficient to prove (a) that he knew the facts which are said to make his act or omission a contempt and (b) that such act or omission was not accidental: see Hong Kong Civil Procedure (2016), at § 52/1/17; and Kao, Lee & Yip v. Koo Hoi Yan (2009) 12 HKCFAR 830 at 854J–859J, per Sir Gerard Brennan N.P.J.; and Sir Gerard Brennan NPJ.

39. In Kao Lee & Yip v Koo Hoi Yan (2009) 12 HKCFAR 830, Sir Gerard Brennan NPJ said:

“53. There is no reason, either of policy or authority, for adopting a criterion of liability for civil contempt that is stricter than that defined by the Stancomb principle.  The exception for breaches that are not “casual or accidental or unintentional” ensure that no injustice is done when the breach of the court order is occasioned by such a cause.  But when an act or omission in breach of a court order is done or made consciously, voluntarily and unaffected by any mistake – that is, not casually, or accidentally or unintentionally – it is immaterial that the breach was committed in reliance on a third party’s advice, even legal advice…

13.  The learned judge further said, which I find it is important, is whether the party has purged his contempt or has remedied the breach before the hearing.

“41. The next question is whether R has purged his contempt. When a party has been in contempt but has remedied the breach before the hearing, the court will not or should not make a committal or a suspended committal order: see Butterworths Family Law Service, Blinder 4(1), at § 3297.1; Bluffield v Curtis [1988] 1 FLR 170, [1988] Fam Law 20 and also THY v CHFR, (unrep.; HCMP 1755/2015, 23 September 2015) at §§ 9 – 14.”

Service of court orders

14.  The mother deposed in her 15^th affirmation filed on 1 August 2018 that the father has (i) failed to accept service of court documents; (ii) failed to collect court documents duly served on him by registered post within the retention period; (iii) failed to answer to documents served by email; and (iv) failed to attend court hearings; and (v) failed to attend regular access visits to the children.

15.  The call over hearing of the committal proceedings and the 1^st appointment hearing were fixed on 3 and 4 October 2018. The court bailiff subsequently notified the mother that they have failed in their repeated attempts to serve onto the father documents relating to the committal proceedings. The mother then whatsapped the father on 27 September 2018 of the respective hearings on 3 and 4 October 2018.

16.  The mother’s solicitors gave a detailed account of service of court documents since the handing down of the judgment of the varied MPS order:

(i) On 9 May 2018, the father was personally served a copy of the order of the varied MPS order at the lobby area of Wanchai Tower successfully. The MPS order was endorsed with penal notice.

(ii) On 19 May 2018, during an access with the children, the mother attempted to ask her domestic helper to serve on the father the new petition and related documents. The father refused to accept and the domestic helper returned them to the mother.

(iii) On 25 May 2018, the mother’s solicitors sent the new petition and related documents to the father by post to the father’s Yuen Long address. The mail has not been returned.

(iv) Various attempts to serve on the father by post by the mother’s solicitors sent a letters to the father to the same Yuen Long address by post which has not been returned.

(v) Various attempts to serve on the father by sending email sent to the father’s email address xxxxxx@gmail.com and such emails did not bounced back to the sender.

(vi) On 26 and 28 September 2018, the bailiff could not serve on the father the inter-parte summons for committal. The bailiff found the door was locked in an address in Lamma Island.

(vii) On 30 September 2018, a domestic helper served on the father the inter-parte summons for committal at around 11:15 am in a dim sum restaurant during defined access. The domestic helper tried to use the document to touch the father.  The father refused to accept service. The domestic helper brought them back to the mother.

(viii) On 3 October 2018, the mother sent whatsapp message to the father to notify him of the substantial hearing of committal proceedings on 6 November 2018 and had asked him to attend. The father replied in whatsapp he is “in hospital”.

(ix) On 9 and 18 October 2018, the mother’s solicitors served notice of the hearing on 6 November 2018 to the father by registered post to his Yuen Long address and to his email. No returned mail was noted.

17.  Notwithstanding the abovementioned attempts of service, the father appeared in the substantive hearing of the committal proceedings on 6 November 2018.

The mother’s evidence

18.  The mother deposed in her 9^th and 10^th affirmations filed on 28 May 2018 and 31 May 2018 respectively that the father has failed to pay  maintenance as ordered in the varied MPS order. She said the father had failed to make payment of HK$92,000 and the backdated amount of HK$400,000 to her bank account.

19.  It is not the first time the father has intentionally failed to comply with a court order to maintain herself and the children of the family. The father has exhibited a despicable pattern of his contumacious refusal to provide maintenance. Child T has suffered most as compared to child C, child R and child L as he has been expelled from school due to non-payment of school fees. The mother further said, she has to rely on her own credit card to pay for the day to day expenses for herself and the children. The outstanding credit card debt was HK$46,125 as at 30 May 2018. She has also applied for bank loans from Bank of China in sum of HK$58,000 with her credit card debt with the same bank accrued to HK$10,033. The mother has taken two personal loans in sum of HK$110,000 during the period from November 2017 until February 2018.

20.  In the mother’s 14^th affirmation, she updated she had taken two additional personal loans from distant acquaintances in sum of HK$70,000 and HK$10,000 since April 2018 and subsequently HK$7,000 and HK$6,000 for other two. She computed the outstanding liability of herself and 4 children of the family was nearly HK$300,000.

21.  The mother further said, her domestic helper finished her contract on 27 June 2018 and had left already. She is now singlehandedly responsible for cooking, cleaning and caring for all 4 children. She has to find groceries at discounted prices in wet markets or late at night in supermarkets for slashed priced food.

The father’s evidence

22.  The father explained at trial that he has been suffering from “hypertensive crisis” with his blood pressure over 130. He was hospitalised since 3 October 2018. He could not attend the hearings on both 3 and 4 October 2018.

23.  With regard to the non-compliance of the varied MPS order, he said he does not have money to deal with it. The father repeated the 4 children of the family should relocate to United Kingdom for reduced of expenses because the children will have priority for schools. The mother has refused to discuss the possibility at all times because of her new relationship.

24.  The father said the problem is cash flow. He has been trying all business and work. Making money is not easy. He has been supporting the family for 16 years, he is a hands-on father. He blamed the court does not protect his interest and the best interest of the 4 children. The father has been living on loans as well. He is looking for solutions.

Discussion

25.  The burden is on the mother to prove beyond reasonable doubt the father’s contempt, father does not have the burden to prove otherwise. It is sufficient to prove that the father’s conduct was intentional in the sense that it is conscious and voluntary. It is not necessary to prove a contumacious intent on the part of the father.

26.  There is no issue on service of both the penal notice and the committal summons on 20 August 2018. I accept the father was duly served with the varied MPS order together with penal notice. The mother’s solicitors have effect service on the father of the committal summons by way of personal service, registered post and by email. In attempts of service on the father by the mother’s domestic helper on 30 September 2018, I am satisfied, even if the father has refused to accept the committal summons, personal service has been effected. (See paragraph 65/2/3 of the Hong Kong Civil Procedure 2018)

27.  The father failed to attend the call over hearing of the committal summons on 3 October 2018. The committal summons was not concerned with the non-appearance of the call over hearing (or other court hearings) but solely on the failure to pay maintenance pending suit (after variation) as ordered.

28.  The father has appeared in person in all hearings heard before me since I first handled this case in 13 December 2017. The father disputed custody, care and control of 4 children of the family and had gone through a 3 –day trial in 9 – 12 January 2018 where the judgment was handed down on 28 February 2018. He attended the trial of variation of MPS by the mother (the subject order) on 20 April 2018, my judgment handed down on 27 April 2018. He took out an application for leave to appeal against my judgment on custody, care and control of 4 children of the family and had attended hearing in 9 May 2018. After I have dismissed his summons for leave to appeal on 17 May 2018, the father failed to attend all court hearings until the substantial hearing of the committal proceedings on 6 November 2018.

29.  Subsequent to the varied MPS order, the father restored his variation of MPS summons filed on 28 June 2016 (“the restored MPS summons”). The listing officer of the Family Court fixed a date for hearing on 17 July 2018 to hear the said summons. A notice of hearing was sent to both the mother and the father on 14 May 2018. On 7 June 2018, the mother’s solicitors enquired with the court of the purpose of this hearing. On 28 June 2018, the mother’s solicitors took out a summons to strike out the restored MPS summons and the hearing was fixed on 3 July 2018. The said summons was served on the father by registered post and by email. On 3 July 2018, the father failed to appear in light of the mother’s application to strike out his restored MPS summons. As the variation of MPS has been overtaken by the varied MPS order, the father’s restored MPS summons was rendered redundant. I so ordered the restored MPS summons to be struck out and had vacated the hearing on 17 July 2018.

30.  It is contained in the mother’s affirmation that she has informed the father of this substantive hearing of by way of whatsapp on 3 October 2018. The father replied by whatsapp he was “in hospital”. I take in to consideration that he was hospitalized on the date of call over and could not appear in that hearing.

31.  After his restored MPS summons has been struck out, neither did the father take further action to vary the varied MPS order or to appeal against it. The father did not comply with the varied MPS order to pay maintenance pending suit as ordered. The father appeared on 6 November 2018 after I have granted the prohibition order.

32.  Solely considering the mother’s evidence, although the father has paid the rent of the matrimonial home directly to the landlord, I am satisfied that the father has ability to pay the sum ordered in the varied MPS order (less any rental payment made by the father to the landlord of the matrimonial home) and it was due and owing up to the date of the hearing of the committal summons. The father’s conduct for non-compliance of the varied MPS order was intentional in the sense that it is conscious and voluntary.

Punishment

33.  Committal order are remedies of last resort in family proceedings. (See: G v S (2001) 4 HKCFAR 419, [2001] 3 HKLRD 842, at § 21 per Nazareth NPJ). I see from the father’s saying that he has determined not to pay the maintenance pending suit. I take into account his evidence as mitigation. The father has more than once indicated to me that the varied MPS order was a nonsense. The father’s breach is contumacious. His conduct has put me into in a situation with limited choices. I see no reason why he should not be committed to prison. I shall hear his mitigation.