NS v. NK

FCMC 8255 / 2022

[2025] HKFC 193

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8255 OF 2022

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J U D G M E N T

(Order for Committal)

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 Introduction

1.  The Petitioner mother (“Mother”)  sought an order for committal of the Respondent father (“Father”)  for contempt of court pursuant to Rule 90 of the Matrimonial Causes Rules, Cap 179A (“MCR”)  and Order 52 of the Rules of the District Court, Cap. 336H (“RDC”).

2.  At the end of the hearing, I gave a brief reasoning for my judgment and I found it necessary to deliver my full written reasons to set out its background and procedural history with more details.

Background

3.  On 24 August 2023, Deputy District Judge Allison ordered that the Father do pay to the Mother, a sum of HK$27,500 per month or HK$5,500 per child per month by way of maintenance for the benefit of the five children of the family.  The first of payment was to be made on 1 September 2023 and thereafter, on the first day of each calendar month (“Maintenance Order”). See: [2023] HKFC 171

4.  Penal notice was endorsed on the Maintenance Order with personal service dispensed with.

5.  On 30 May 2024, the Mother took out judgment summons against the Father. The Mother said the Father had only paid a total sum of HK$4,000 only since the Maintenance Order was made.

6.  On 22 November 2024, Master TK Lam ordered the Father to file and serve his Form E within 14 days from the date of the order together with the documents required under Part 7 of the Form E from 1 September 2023 to the date of the Form E (“Disclosure Order”).

7.  The Father filed his Form E on 13 December 2024, but the Father did not provide copies of documents as required under Part 7 of his Form E.

8.  On 15 January 2025, the Mother filed a request for further and better particulars. According to the Disclosure Order, the Father was supposed to file and serve his answers to the Mother’s questionnaire within 28 days thereafter, i.e. on or before 12 February 2025.

9.  The Mother’s solicitors personally served the Disclosure Order on the Father on 25 January 2025.

10.  On 22 May 2025, the Mother filed an ex-parte application for leave to commence committal proceedings against the Father for his breaches of the Maintenance Order and the Disclosure Order.

11.  On 3 July 2025, leave was given to the Father to file and serve his affirmation in opposition to the Mother’s committal application and to file and serve his Answers to the Mother’s questionnaire filed on 15 January 2025 on or before 31 July 2025.

12.  The Father only filed his Answers to the Mother’s questionnaire on 15 July 2025, and did not file an affirmation in opposition to the Mother’s committal application.

13.  The Father was present at the hearing on 3 July 2025 and he was fully aware of the PTR hearing on 29 September 2025. The Father, however, failed to attend the PTR hearing.

14.  According to the affirmation of service filed by the Mother’s solicitors on 11 November 2025, I was satisfied that the order dated 29 September 2025 had been properly served on the Father, which I had given leave for substituted service on the Father by way of sending all the documents to his last known e-mail address. This e-mail address was provided by the Father when he attended the hearing on 3 July 2025.

15.  At the hearing, the solicitors for the Mother adduced two emails from the Father dated 17 November and 24 November 2025. The Father said in the emails that he would not consent to the Mother’s application and he was not in the position to attend the hearing due to accumulation of physical and mental strain.

16.  I was satisfied that the Father was fully aware of the circumstances of the Mother’s application and the hearing. I found that it was appropriate to deal with the Mother’s application in the absence of the Father.

The alleged breaches

17.  The material acts listed in the Mother’s Statement of Committal were as follows:

(1)  The Father was in breach of the Maintenance Order by failing to pay all of the sum ordered by the court;

(2)  The Father was in breach of the Disclosure Order by not providing copies of all the documents required under Part 7 of his Form E; and

(3)  The Father was in breach of the Disclosure Order by not filing his answers to the Mother’s questionnaire dated 15 January 2025.

Applicable legal principles

18.  The proper approach to committal for civil contempt by reason of breach of a court order is a three stage test and has been set out in §52/1/16 of the Hong Kong Civil Procedure 2025 (Vol.1)  as follows:

(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.

19.  It was sufficient for the Mother to show that the Father had committed a deliberate act that was intentionally in breach of an order of court. Motive of disobedience was not relevant in determining if the Father was liable for contempt. See: Kao, Lee & Yip v. Koo Hoi Yan (2009)  12 HKCFAR 830.

20.  The Court of Appeal in LCH v WPSN [2025] HKCA 376 at [16] – [19] held that the wife had the choice to deal with the husband’s non payment of maintenance by way of judgment summons or committal proceedings. Further, it was held that there was no requirement that if a party did not pursue the judgment summons route, the Court still had to go through an “examination process” as prescribed by YBL v LWC [2017] 1 HKLRD 823 and PDSL 10.2.

Analysis

Non-payment of children maintenance

21.  In the present case, it was clear that the Father had failed to comply with the Maintenance Order by paying monthly maintenance of HK$27,500 to the Mother. The terms of the Maintenance Order was clear and unambiguous. The Maintenance Order was endorsed with penal notice.

22.  From the documents filed by the Father, it appeared that the Father admitted that he did not pay the sum as required under the Maintenance Order. The Father’s explanation appeared to be he had no means to pay.

23.  Deputy District Judge Allison however found that the Father had the means to pay the Mother when the Maintenance Order was made.

24.  The Father did not take out leave to appeal application nor apply for a stay of execution of the Maintenance Order. It was clear that the Father had decided not to comply with the Maintenance Order. The breach was deliberate and intentional.

Breach of the Disclosure Order

25.  The Father was supposed to file and serve his answers to the Mother’s questionnaire by the mid of February 2025. The Father did not take any step to comply with the Disclosure Order.

26.  On 3 July 2025, the court directed the Father to file his answers to the Mother’s questionnaire. The Father finally filed his answers on 15 July 2025.

27.  The next question was whether the Father has purged his contempt by his answers filed on 15 July 2025 (“Answers”).

28.  The contents of the Father’s Answers were complete non-answer to the Mother’s questionnaire. The Father had yet to proffer any satisfactory explanation for the non-disclosure, apart from perfunctory assertions that he had provided answers and evidence before and there was a need to protect third parties.

29.  It was clear the breaches were committed by the Father with full knowledge of the terms of the Maintenance Order and the Disclosure Order and what he was required to do.

30.  Whilst the Father asserted that he was unable to answer some of the questions in the Mother’s questionnaire because he needed to protect the identities of third parties, he could have at the very least provided official copies of bank statements and redact the full names of third parties. This was not done.

31.  The Father also did not provide all official copies of bank statements nor all of the documents required under Part 7 of the Form E from 1 September 2023 to the date of the Form E, i.e. 13 December 2024.

32.  As there have been deliberate and intentional breach of the Maintenance Order and the Disclosure Order, the motive and reasons for disobedience were irrelevant to establishing liability.

33.  In conclusion, I was of the view that the Mother has discharged her burden in proving beyond reasonable doubt that the Father had breached the Maintenance Order and the Disclosure Order. I found the Father liable for contempt by his failure to pay full maintenance and by not providing copies of all the documents required under Part 7 of his Form E.

34.  Since the Father was absent at the hearing, I would order a warrant of arrest be issued for the Father's arrest so that he could be brought back to court.

35.  I have also considered Hon Coleman J’s “long stop” date approach as set out in Secretary for Justice v Cheung Chi Ho [2023] HKCFI 2104, at § § 5-10 and HHJ Elaine Liu’s decision in CKC v SHTH and Official Solicitor [2024] HKFC 95.

36.  I considered it would be appropriate to set a “long stop” date for this matter, so that the matter would not be left open or in abeyance pending the effecting of the warrant of arrest. I set the “long stop” date on 15 December 2025 at 10:30 am.

37.  I would give leave for substituted service on the Father again by way of sending the court order to his last known e-mail address as confirmed by him at the hearing on 3 July 2025.

Costs

38.  It is well established that a successful claimant in contempt proceedings will usually be awarded costs on an indemnity basis. See: Lau Yee Ching v. Wong Tak Kwong & Ors, CACV385/2005, 3 March 2006, Secretary for Justice v Cheng Lai King [2020] 5 HKLRD 356 at [93] and LCH v WPSN [2025] HKCA 376 at [30].

39.  The Father do pay the Mother’s costs of the contempt proceedings, with certificate for counsel, including all costs reserved on an indemnity basis, to be taxed if not agreed.

40.  The Mother’s own costs be taxed in accordance with the Legal Aid Regulations.