CWYJ v. LTYE

CACV 481/2020

[2020] HKCA 913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 481 OF 2020

(ON APPEAL FROM FCMC NO. 1135 OF 2016)

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving the Reasons for Judgment of the Court) :

I. Appeal against Prohibition Order

1.1.  On 6 July 2020 Deputy District Judge M Lam (‘Judge M Lam’), upon the Petitioner’s ex-parte application, granted a prohibition order pursuant to section 52E of the District Court Ordinance (Cap. 336) (‘DCO’) restraining the Respondent from leaving Hong Kong for a period of one month (‘the July Prohibition Order’). 

1.2.  On 22 July 2020 the Respondent applied for a discharge of the July Prohibition Order. The Petitioner also by summons filed on 30 July 2020 asked for an extension of the July Prohibition Order.  On 3 August 2020 by the consent of the parties but without prejudice to the Respondent’s position that the July Prohibition Order should be discharged, the July Prohibition Order was extended until 5 September 2020 (‘the August Prohibition Order’).  On 27 August 2020 the Petitioner filed another summons for a further extension of the July Prohibition Order. 

1.3.  Judge M Lam heard these summonses on 1 September 2020.  On 4 September 2020 she dismissed the Respondent’s application to discharge the July Prohibition Order. She allowed the July Prohibition Order which was extended on 3 August 2020 to be further extended for one month from 5 September 2020 (‘the September Prohibition Order’). 

1.4.  She further ordered that the September Prohibition Order shall lapse after the expiry of one month from 5 September 2020 (unless extended or renewed) and shall have no effect if :

1)  the Respondent makes full payment for a total sum of $5,610,000 being the arrears of lump sum payment and periodical maintenance accrued from August 2016 to June 2020 and such costs as may be due for the obtaining and execution of this order; and

2)  the Respondent makes payment of the sum of $5,610,000 as security or provides bail in that sum by a surety or sureties.

1.5.  The Respondent appealed against the granting of the September Prohibition Order. We allowed the appeal at the conclusion of the hearing.  We will now give reasons for our decision.  

II.       Background

2.1.  The parties were married in Hong Kong on 5 October 2007 and two daughters were born of the marriage.  The Petitioner (wife) petitioned for divorce in January 2016.  On 27 January 2017 a Consent Order was made by Deputy District Judge D Cheung which was subsequently amended on 9 July and 1 August 2018 (‘the Consent Order’) and by which the Respondent (husband) is required to pay to the Petitioner the following payments :

1)  periodical payment of $35,000 per month until her death or remarriage, whichever is earlier (‘periodical payments’). The first payment was to be made on 1 August 2016; and

2)  a sum of $4 million (‘lump sum payment’) by eight installments of $500,000 each payable every six months.  The first installment was to be paid on 1 January 2017 and the last one on 1 July 2020.

2.2.  On 17 March 2017 a divorce decree absolute was pronounced.  Apart from $20,000 paid by the Respondent in August and September 2016 by payments of $10,000 each he had failed to make any payment to the Petitioner under the Consent Order.

2.3.  The Petitioner issued a judgment summons on 17 August 2017 and another one on 15 August 2018 seeking to recover the payments in arrears and costs under the Consent Order.  On 11 August 2020, the Petitioner issued a summons (‘Leave Summons’) seeking leave to commence enforcement proceedings to recover the payments under the Consent Order which were outstanding for more than 12 months.  The Respondent made two applications for variation of the Consent Order on 4 April 2018 and 2 May 2018 respectively (‘First VOM Applications’).  The First VOM Applications were dismissed after trial by Judge M Lam on 28 June 2019.  On 11 August 2020 the Respondent took out another application for variation of the Consent Order (‘Second VOM Application’) seeking an order that :

1)  the payment schedule of the lump sum payments be varied to monthly installments of $5,000 and from January 2022, $10,000;

2)  the periodical payments be varied to $1 per annum.

2.4.  On 21 August 2020, the Petitioner issued a third judgment summons seeking to recover the periodical payments for the period between September 2019 and August 2020.

2.5.  At the call-over hearing of the first two judgment summonses on 14 January 2020, Deputy District Judge D. To ordered the Respondent to personally attend the adjourned hearing scheduled for 28 July 2020.

2.6.  On 29 June 2020, the Respondent filed an affidavit stating that he would not attend the hearing on 28 July 2020 because his employer in Singapore required him to return to work in Singapore.  He would leave Hong Kong for Singapore at any time between 7 and 9 July 2020.  This triggered the Petitioner’s ex-parte application for the July Prohibition Order.  

III.      The Respondent’s case

3.1.  The Respondent stated that he was born and raised in Hong Kong.  He lived in Singapore between 1998 and 2002.  In 2002 he returned to Hong Kong.  In July 2019 he relocated to Singapore to take up his current job. 

3.2.  He is the R&D Engineer in the group of companies (‘Group’) under GSS Energy Limited, a listed company on the Singapore Exchange.  He is the Chief Executive Officer of two subsidiary companies of the Group.  He is also involved with the corporate finance and business development of GSS Energy Limited and the manufacturing arm of another subsidiary.  He goes on business trips almost every week.

3.3.  He remarried on 27 May 2020.  He and his current wife live in a rental apartment in Singapore.  He is the named tenant on the lease, which was signed in January 2020 and is due to expire on 19 January 2021.

3.4.  The Respondent said that since May 2019, he had made at least ten trips to Hong Kong, mostly for business purposes and to attend court hearings in these proceedings where he had been acting in person.  He had never missed a court hearing.  By filing the 29 June 2020 affidavit, he was seeking the indulgence of the Court to excuse his attendance in Court on 28 July 2020 for the first time due to the unprecedented circumstances caused by the COVID‑19 outbreak. His employer urgently needed him to attend the business trip to Batam in order to fulfill his role as project leader.

3.5.  The Petitioner and the children of the family are living in the former matrimonial home provided by the Respondent’s parents.  Wherever he was in Hong Kong, he would make an effort to see the children off to school and pick them up from the bus stop.  On weekends, he would take them out.  He had arranged his work schedule so he would come back to Hong Kong every month or every other week so that he could visit his daughters as well.  When he was back in Singapore, he would have video calls with his daughters every other day. 

3.6.  Most of his friends and family are also in Hong Kong.  As he has been in corporate finance for over 20 years in Hong Kong, including acting as a Responsible Officer to a securities company, he has built up business connections with the finance industry in Hong Kong many of which remain important to him for his career development.

IV.      The MPF payment

4.1.  The Respondent had recently made offers to pay his MPF entitlement to the Petitioner.  On 24 August 2020 the Respondent received from his MPF provider the cheque of $846,132.05. 

4.2.  On 26 August 2020, the sum of $846,132.05 was paid to the Petitioner through the Respondent’s solicitors.  On 27 August 2020, the parties filed a Consent Summons in which the Petitioner confirmed she had received the sum of $846,132.05 which is to be applied towards the following :

1)  $420,680 in satisfaction of the total sum claimed under the judgment summons dated 15 August 2018;

2)  $415,100 in satisfaction of all liquidated sums claimed under the judgment summons dated 21 August 2020, namely maintenance arrears and travelling expenses;

3)  the balance of $10,352.05 is applied towards partial settlement of the $4 million payment obligation under the Re‑amended Consent Order.

4.3.  Under the Consent Summons, the parties also agreed and sought an order that the judgment summonses dated 15 August 2018 and 21 August 2020 be discharged, and for interest and surcharge payable under the judgment summons dated 21 August 2020 to be assessed by the Court.

4.4.  On 28 August 2020, Deputy District Judge D. To made the following requisition in relation to the Consent Summons :

‘ 1. Interest and surcharge should be quantified and agreed in order that the 2 Judgment Summons can be entirely disposed of by Consent Summons. These are not matter which the taxation master(s) should be bothered with.

2.  Please file Consent Summons afresh.’

4.5.  At the time of the hearing on 1 September 2020, no agreement had yet been reached on the interest and surcharge payable under the judgment summons dated 21 August 2020.

4.6.  On 15 September 2020, the Petitioner who was previously represented by lawyer chose to act in person.

4.7.  On 11 September 2020, the parties reached agreement on the interest and surcharge under the judgment summons dated 21 August 2020 in the amount of $18,000.

4.8.  This sum of $18,000 was paid to the Petitioner on 24 September 2020.

4.9.  On 28 September 2020, the Revised Consent Summons was signed and filed with the Family Court in response to Deputy District Judge D. To’s requisition.  The terms of the Revised Consent Summons were approved and made an order of the Court on 5 October 2020 with some minor amendments on the wording of the Consent Summons.

V.  The Statutory Scheme

5.1.  A prohibition order is a draconian measure which restricts a judgment debtor or someone who is liable for a civil claim from leaving Hong Kong.  The provisions for the granting of a prohibition order are governed by section 52E of the DCO. It provides that the Court shall have jurisdiction to make a prohibition order prohibiting a person from leaving Hong Kong to facilitate the enforcement, securing or pursuance of the following judgment or claim :

1)  a judgment against that person for the payment of a specified sum of money (section 52E(1)(a));

2)  a judgment or order against that person―

i)  for the payment of an amount to be assessed, or

ii) requiring him to deliver any property or perform any other act (section 52E(1)(b)); or

3)  a civil claim (other than a judgment)―

i)  for the payment of money or damages; or

ii) for the delivery of any property or the performance of any other act (section 52E(1)(c)).

5.2. The requirements for granting the prohibition order in respect of a judgment under section 52E(1)(b) and a claim under section 52E(1)(c) are set out in section 52E(2) and (3) :

‘ (2) The Court shall not make an order under subsection (1)(b) unless it is satisfied that there is probable cause for believing that—

(a)  the person against whom the order is sought is about to leave Hong Kong; and

(b)  by reason of paragraph (a), satisfaction of the judgment or order is likely to be obstructed or delayed.

(3)  The Court shall not make an order under subsection (1)(c) unless it is satisfied that there is probable cause for believing that—

(a)  there is a good cause of action;

(b)  the person against whom the order is sought—

(i)    incurred the alleged liability, which is the subject of the claim, in Hong Kong while he was present in Hong Kong; or

(ii)   carries on business in Hong Kong; or

(iii)  is ordinarily resident in Hong Kong;

(c)  that person is about to leave Hong Kong; and

(d) by reason of paragraph (c), any judgment that may be given against that person is likely to be obstructed or delayed.’

5.3.  It is of note that there are no similar requirements in respect of a judgment under section 52E(1)(a).

5.4.  The prohibition order is for a period of one month.  It may be extended for a period not exceeding three months (section 52E(5)).

5.5.  The Court may discharge a prohibition order either absolutely or with condition. The conditions include the condition that the order shall have no effect if the judgment debtor or person against whom the claim is made satisfies the judgment or the claim or provides such security as the Court may order (section 52E(4)(a) and (b)). 

5.6.  The procedural rules for obtaining a prohibition order are set out in Order 44A of the Rules of the District Court (Cap. 336H).

VI.      The decision below

6.1.  Judge M Lam relied on the approach of H H Judge To (To J, as he then was) in Yue Wah Chuk & Anor v McKeon Bredan Hugh DCCJ 7088/2003, 24 August 2004 which was followed by Chu J (now Chu JA) in Questnet Ltd v Rinck, HCA 1475/2006, 18 February 2008 on how the discretion to grant prohibition order should be exercised by asking three questions :

1)  Whether there is a real likelihood that the judgment debtor will leave Hong Kong;

2)  whether there is a real risk that he will not return for a substantial period of time; and

3)  whether as a result of his absence enforcement of the judgment would be obstructed or delayed.

6.2.  In respect of questions 1) and 2) she considered the Respondent’s statutory declaration for the purpose of terminating his MPF account and his affidavits filed in these proceedings that he has relocated to Singapore permanently for work and will leave Hong Kong as soon as the prohibition order is discharged and he is granted permission to return to Singapore from the Singapore Government under the travel restriction policy for the purpose of reducing the risk of importing the COVID-19 virus.

6.3.  She also considered the background facts that the Respondent has

1)  packed up and delivered up vacant possession of his rented property in Hong Kong;

2)  relocated to Singapore and has been working in a company there since 1 July 2019 allegedly earning a reduced monthly salary of SGD8,800 plus bonus;

3)  moved from Hong Kong to live in his rented apartment in Singapore with his wife and their two dogs;

4)  booked flights to fly back to Singapore together with his wife on 8 July 2020; and 

5)  applied for residency in Singapore.

6.4.  Judge M Lam discounted the fact that his parents, his two children, and some of his friends and business connections are in Hong Kong and he has the practice of returning to Hong Kong to meet them.  She held that there is no indication of any concrete plan to return to Hong Kong in the foreseeable future, especially in light of his alleged employment commitments together with the travel restriction policy of Singapore.  She held that, worse still, his intention to attend the judgment summons hearings is in serious doubt.

6.5.  She also considered the Respondent’s long history of defaulting payment, his conduct of not paying one single cent since September 2016 until after the July Prohibition Order, his allegation that he is now in debt and his expenditures far exceed his income.

6.6.  She held that in respect of questions 1) and 2) :

‘ I have solid reasons to believe that there is a real risk that he will leave Hong Kong for a substantial period of time.’

6.7.  In respect of question 3) she was satisfied that the enforcement of the Consent Order would be obstructed or delayed in the absence of the Respondent.  She held, among other things, that :

‘ 48. The Consent Summons has yet been approved and the Two JS Summonses remain undisposed of. It certainly has not discharged the Respondent from the payment obligation of more than HK$5,000,000 under the Consent Order.’

VII.     Grounds of appeal

7.  The grounds of appeal can be summarised as follows :

1)  Judge M Lam was wrong to find that there were substantial concurrently enforceable judgment debts which are still outstanding;

2)  Judge M Lam was wrong to treat the debts as enforceable or will be enforceable because, as the Respondent is in the process of seeking variation, such sums may never be enforceable;

3)  Judge M Lam erred in principle and in law with regard to her approach in granting the prohibition order where the Respondent’s likelihood depends upon his employment in Singapore whose courts will enforce orders of the Hong Kong Family Court;

4)  Judge M Lam erred in refusing to accept or take into account the Respondent’s proposal to provide an undertaking that he would not oppose any attachment of income applications in Singapore subject to the provision of his reasonable living expenses;

5)  Judge M Lam detained the Respondent within Hong Kong.  Such detention was not reasonably or properly conducive to enforcing the judgment and the Respondent’s departure from Hong Kong would not significantly impede the enforcement;

6)  Judge M Lam had made errors in her judgment rendering her decision unsafe :

(1) The Respondent did not decline the Court’s invitation to materialise his offer to pay over the MPF fund and not oppose any attachment of income application in Singapore;

(2) She erred in holding that the Respondent has no concrete plan to return to Hong Kong;

(3) The Respondent did not ignore the Court’s order for his personal attendance at the hearing on 28 July 2020;

(4) There was no inherent problem with the Consent Summons filed to dispose of the two judgment summonses.

(5) The Respondent has not been silent on the suggestion of arranging personal guarantee or surety;

(6) The Judge erred in failing to consider material non‑disclosure by the Petitioner in respect of the Respondent’s ties and connection with Hong Kong including his practice of returning to Hong Kong once or twice a month to see the children.  

VIII.    Amended Notice of Appeal

8.1.  On 30 September 2020 the Respondent issued a summons seeking leave to amend the Notice of Appeal.  The amendment referred to the Respondent’s constitutional right of movement and travel and his common law right to pursue an occupation. 

8.2.  The summons also sought to adduce the evidence on the finalization of the terms of the Consent Summons. 

8.3.   We directed that the summons would be considered on a provisional basis.

IX.     Our view

1)       The requirements

9.1.  Although the September Prohibition Order has now lapsed (it lapsed on 4 October 2020 by expiry of time), as Mr Chan (together with Mr Parker and Ms Leung) for the Respondent had submitted, the issue is not an academic one : if a prohibition order is to be applied for again in the future by the Petitioner, the issue of estoppel may arise unless the September Prohibition Order is set aside.  The Petitioner’s former lawyers had previously indicated that she intended to apply for new prohibition orders.  The Petitioner only informed the Court at the hearing that she would not do so because she did not have the financial resource.  We agree with Mr Chan and accordingly we will deal with the merits of the appeal against that order notwithstanding that it has already lapsed.  In so doing, we will allow the amendment of the Notice of Appeal and the application to adduce the new evidence concerning the finalisation of the Consent Summons.

9.2.  It must be stated at the outset that the Respondent does not raise any constitutional challenge to the statutory framework of section 52E as being contrary to the rights of movement and travel a Hong Kong resident has as guaranteed by the Basic Law.  The reference to this right is on the issue of whether, having regard to this right, the discretion had been properly exercised.

9.3.  As stated earlier there is no express provision for any requirement to be met before a prohibition order is to be granted in respect of a section 52E(1)(a) judgment.  In our view it is unlikely a prohibition order can be obtained whenever there is in existence of a section 52E(1)(a) judgment.  We find and this is accepted by Mr Chan that a similar requirement under the section 52E(1)(b) judgment is likewise imposed on a section 52E(1)(a) judgment, namely there is probable cause to believe that a debtor is about to leave Hong Kong and by that reason satisfaction of the judgment is likely to be obstructed or delayed. 

9.4.  There is no reference in Order 44A to the requirements to be met but since this Order merely set out the procedural rules for applying the prohibition order, the requirements as set out in section 52E must apply.  In respect of the three questions identified in the earlier cases, the second one is whether there is a real risk that the debtor will not return for a substantial period of time.  This is only an elaboration of the nature of the debtor’s departure and absence.  A debtor may leave Hong Kong temporarily and as such will not obstruct or delay the enforcement of the judgment.  It is only where there is a likelihood of substantial absence that risk of obstruction or delay of enforcement may occur. 

2)       Appeal against discretion

9.5.  This appeal being concerned with the exercise of discretion by the judge below, the Respondent must show that the decision is plainly wrong in the sense that the judge had erred on principle or that the discretion was wrongly exercised in that she had ignored relevant considerations or taken irrelevant considerations into account or the decision is so aberrant that no reasonable judge would have made in the circumstances of the case.

3)       Enforceable judgment

9.6.  We will deal with the question of the lack of an enforceable judgment.  The amount of the debt outstanding at the date of the granting of the prohibition order was $5,610,000.  This is the arrears of the lump sum installments and periodical payments accrued from August 2016 to June 2020. 

9.7.  The Respondent submitted that,

(1) of this sum, $420,000 was maintenance arrears from September 2017 to August 2018, and is the subject matter of the judgment summons dated 15 August 2018.  Another $350,000 was maintenance arrears from September 2019 to June 2020, and is the subject matter of the judgment summons dated 21 August 2020.  Both of these sums had already been fully paid off and discharged by 26 August 2020;

(2) all the other stated sums (namely, $4 million lump sum by installments and maintenance arrears from August 2016 to August 2017 and September 2018 to August 2019) are not currently enforceable and require express leave to enforce from the Family Court pursuant to section 12 of the Matrimonial Proceedings and Property Ordinance (‘MPPO’) (Cap. 192), having fallen due for more than 12 months prior.  These are the subject of the Leave Summons; and 

(3) absent such leave to enforce, there are no currently enforceable judgment debts which are outstanding and the Petitioner was not entitled to the prohibition order, which should have been and should now be discharged.

9.8.  We will first deal with the payment of $846,132.05 (‘the MPF sum’).  At the time of the hearing on 1 September 2020 the parties had still not reached agreement on the interests and surcharge payable under the judgment summons dated 21 August 2020.  Deputy District Judge D. To who was in charge of the Consent Summons (and not Judge M Lam) had not yet approved the Consent Summons.  In the circumstances we do not accept that there was, at the time of the hearing, no enforceable judgment in respect of the debts under the two judgment summonses by reason of the payment of $846,132.05.  

9.9.  The second argument on enforceable judgment is based on section 12 of MPPO which provides that a person shall not be entitled to enforce through the Court the payment of any arrears due under an order made by virtue of section 3, 4(1), 5(2), 8(5) or 8(6) without the leave of the court if those arrears became due more than 12 months before proceedings to enforce the payment of them are begun.

9.10.  There is no dispute that the payments under the Consent Order come within the ambit of section 12(1).  However, we disagree with the Respondent that section 12 of the MPPO has any impact on the enforceability of a judgment under section 52E(1).  The wording of section 52E(1) is drafted in general terms.  The prohibition order is to facilitate the enforcement, securing or pursuance of a judgment or claim.  In the context of section 12 of MPPO, the enforcement of the judgment will clearly entail the application for leave to enforce if the 12 months’ rule is engaged.  Any other construction will produce an absurd result.  It is of note that a prohibition order can be granted not only in respect of a judgment but also in respect of a civil claim for the payment of money which has not yet been determined by the Court or by the settlement of the parties.  This shows that it is unlikely that the term judgment is to be defined so restrictively.  We further disagree with Mr Chan’s argument that this will turn the Consent Order from being a section 52E(1)(a) judgment into a section 52E(1)(b) judgment because the amount recoverable may need to be reassessed at the application for leave to enforce the judgment.  In our view the nature of the judgment which is for a liquidated sum will not change, even if, for the purpose of argument, the Court may eventually only grant leave to enforce some of the arrears and not the whole. 

9.11.  In any event under the terms of the Consent Summons the periodical payment is payable on the first day of each month.  That means on 1 September 2020, the day of the hearing (and leaving aside the later MPF payment), the Respondent has not paid periodical payment from 1 October 2019 to 1 September 2020 and the 12 months’ rule is not engaged.  This reasoning, however, will not apply to the half‑yearly lump sum payment of $500,000 each because of the accelerated payment clause in the Consent Order which rendered the whole lump sum of $4 million to be due and payable upon a single default in payment.  The default occurred in 2016 and the whole lump sum was due by then.  The Petitioner had in fact previously issued a statutory demand for the $4 million. 

4)       Likely consequence of the variation application

9.12.  We are also not impressed with the argument that the outcome of the variation application may reduce the obligations of the Respondent to pay under the Consent Order.  The application has yet to be determined.  The hearing in November 2020 is only a call‑over hearing.  The substantial hearing is still sometime away and the outcome is uncertain.  In the past the Respondent had looked towards his father to finance him although the evidence disclosed now is that he is unlikely to get such support from the father.  As the variation application has yet to be determined, Judge M Lam cannot be criticised for not taking the variation application into account.

5)       Freedom of movement and right to work

9.13.  The problematic area of the judgment below is really on the consideration (or rather the lack of it) of the Respondent’s right of movement and travel guaranteed by the Basic Law together with his right to work, particularly, the prospect of the Respondent losing his job if he is prevented from going back to Singapore because of the prohibition order.  

9.14.  As indicated earlier the right of movement and travel is guaranteed to all Hong Kong residents under the Basic Law.  Article 31 of the Basic Law reads :

‘ Hong Kong residents shall have freedom of movement within the Hong Kong Special Administrative Region and freedom of emigration to other countries and regions. They shall have freedom to travel and to enter or leave the Region. Unless restrained by law, holders of valid travel documents shall be free to leave the Region without special authorization.’

9.15.  It is accepted by Mr Chan that the various freedoms set out in this article are qualified and not absolute rights.  One of the qualifications is that this right is subject to the terms of section 52E of the DCO.  Although the statutory framework of the prohibition order is not challenged as being unconstitutional, this right is clearly a relevant consideration particularly if the Respondent’s departure from Hong Kong is for a legitimate purpose in the exercise of that right.  

9.16.  As apparent from the judgment below this constitutional right was not considered. However in fairness to Judge M Lam, Mr Chan (who, together with Mr Parker, did not appear below) informed the Court that the issue of constitutional right was not advanced before the judge.  In our view this is a relevant consideration particularly when the purpose of the departure from Hong Kong is for the Respondent to continue with his current employment with a Singaporean employer.  According to the Respondent he had been out of Singapore since April 2020 as a result of COVID.  Prior to the granting of the July Prohibition Order he had obtained permission from the Singapore government to enter Singapore subject to a quarantine period of 14 days.

9.17.  Further as Mr Chan has submitted, the importance of the right to pursue one’s job or profession is deeply entrenched in the common law, dating back centuries: see Nagle v Feilden [1966] 2 QB 633, 644‑645; Ho Man Fat (No.2) v RHJC [1976] HKLR 452, 476‑477; Re Tailors of Ipswich (1614) 11 Coke Reports 53a, 53b‑54a; Lee v Showman’s Guild of Great Britain [1952] 2 QB 329, 343.

9.18.  Judge M Lam had considered the impact of the prohibition order on the Respondent not being able to return to Singapore to work.  She held that ‘it is not something that weighs materially in favour of a discharge of the July Order’.  She referred to the affidavit from the Respondent’s employer stating that the company might consider replacing the Respondent if he could not come back to report for duty soon.  She held :

‘ 46. Truly, the risk of losing employment can never be eliminated.... I however could not lose sight of the fact that although the Respondent was aware of the July Order on 9 July 2020, he only sought to discharge it until 21 July 2020. He has maintained effective communication and flexibility with his employer resulting in the rescheduling of the projects which involved him as well as other constructive business developments after the July Order.

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

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

9.19.  In our view these reasons are not valid.  In respect of the short period of time between the Respondent’s knowledge of the July Prohibition Order and his application to discharge it, this cannot be a proper basis for not attaching any material weight to this factor.  

9.20.  The Respondent had explained that he had on 16 July 2020 arranged with the MPF provider to release the MPF funds to him.  On 17 July 2020 he approached his father who controls the family finance for assistance in settling his outstanding payment obligations to the Petitioner.  This was rejected by his father who was only prepared (as he has done) to provide the accommodation and settle the expenses for the grandchildren.  These steps were taken after he became aware of the July Prohibition Order, and seem to us to explain the short delay in his seeking to have it set aside.

9.21.  In terms of the Respondent being in effective communication with his employer while staying in Hong Kong, the stark fact is that he is now required by his employer to return to Singapore.  He is required to deal with a project of which he is the project leader.   There is the risk of the Respondent losing his job if he does not return to Singapore.  The Singapore government had previously rejected the application for the Respondent’s return to Singapore between 9 and 23 June 2020.  It only gave approval on 26 June 2020 for his return to Singapore between 7 and 9 July 2020.  The Respondent was scheduled to fly back to Singapore on 8 July 2020. 

9.22.  The Respondent had the courtesy to inform the Court below that he would not be able to attend the hearing on 28 July 2020.  This does not appear to be the conduct of someone who intended to leave town in order to avoid his obligations.  As it turned out he did attend that hearing.   

9.23.  Furthermore, the Judge had not considered the fact that since the Respondent’s relocation to Singapore in 2019 he had attended every court hearing in Hong Kong.  He had explained his financial position since the granting of the Consent Order.  The Judge had ignored the fact that in the current economic condition the risk of him losing his job would result in him being less able to satisfy any judgment debt. While it is legitimate for the Petitioner to issue the judgment summons and to apply to examine the Respondent on oath for the purpose of finding out his financial position or to pursue contempt of court proceedings for his disobedience of the Consent Order, the 9 November 2020 hearing is only a call‑over hearing.  The substantive hearing of the various applications by the parties will only be held sometime later.  A strong case is thus required to continue to keep the Respondent in Hong Kong, particularly when this would be likely to have an adverse impact on his employment situation, and it is not met by saying that the Respondent ‘is the author of his destiny’.

9.24.  The weight to be attached to a relevant factor is of course a matter for the judge who exercised the discretion.  However in this particular instance notwithstanding Judge M Lam saying that she was dealing with a matter of weight, in substance she was ignoring a relevant fact that the Respondent needed to return to work in order to provide for his livelihood and to discharge his obligations towards the Petitioner.  Another way of looking the matter is that her conclusion on the Respondent’s plan to depart Hong Kong in order to resume work in Singapore is not a conclusion that a reasonable tribunal would reach upon being appraised of the full facts.  In the circumstances our view is that the discretion has been wrongly exercised in this case.

6)  Other matters

9.25.  There are other matters raised by the Respondent which can be disposed of shortly.

1)  Income attachment

9.26.  The Respondent had proposed that he would provide an undertaking that he would not oppose any attachment of income application by the Petitioner in Singapore, subject to provision of his reasonable living expenses.  It is common ground that a Hong Kong Family Court order can be enforced against the Respondent in Singapore. 

9.27.  Judge M Lam held that there was no concrete proposal or figures suggested by the Respondent, further in view of the payment history and the past conduct of the Respondent it is understandable that the Petitioner would be cautious about any such general suggestion and be loath to be burdened with additional costs of commencing another set of proceedings in Singapore.  She further held that her invitation for the Respondent to materialise the terms of the attachment of income suggestion and to explore feasible solutions as direct payments from his employer met with no success.  It is difficult to see how the Petitioner would be able to design a feasible plan with the limited information disclosed by the Respondent and his past conduct in departing from his undertakings.

9.28.  We disagreed with the Respondent’s submission that the judge was wrong to reject his offer on income attachment.  Additional costs to be incurred by the Petitioner in applying for the income attachment order is obviously a relevant consideration, particularly when it is intended to be enforced overseas.  In our view, instead of requiring the Petitioner to pursue this remedy, the initiative should come from the Respondent himself, for example, by direct periodical payment of a realistic amount from his bank account to the Petitioner.  As the matter now stands the Respondent had only started to pay $5,000 each month to the Petitioner since September 2020.  At this rate, as the Petitioner submitted, it will take 66 years to repay the balance of the lump sum of $3,989,647.95 ($4 million less the recent payment of $10,352.05).

2)  Personal guarantee

9.29.  Judge M Lam said that the Respondent has been silent on the suggestion of arranging personal guarantee or surety.  This is not a valid criticism as the Respondent had said that he is not able to do so in view of the refusal by his father to bail him out from his current predicament. 

3)  Parental support

9.30.  Mr Chan referred us to Judge M Lam’s judgment which rejected the Respondent’s First VOM Applications.  She referred to the financial support rendered by the Respondent’s parents.  Whatever may be the position under the First VOM Applications, Judge M Lam had not relied on the possibility of parental support in granting the prohibition order.  This is not a relevant matter for our consideration.  We were also informed by Mr Chan that he and Mr Parker had agreed to act for the Respondent on a pro bono basis and it is not the case that the Respondent chose to spend his money on lawyers rather than to pay the Petitioner.

4)  Material non-disclosure

9.31.  The Petitioner in her supporting affirmation for the prohibition order stated that :

‘ 10. As far as I know, the Respondent got married in May 2020 and have applied for residency in Singapore. The Respondent has been working in a company in Singapore and already rented an apartment there. The Respondent has packed up everything in his home and decided to move to Singapore permanently. The Respondent already delivered up vacant possession to his rented apartment in Hong Kong. His wife will be going to Singapore with him. He or they are leaving on the 8^th July 2020. I have contacted the Respondent’s employer in Singapore (our mutual friend) and his employer indicated to me that there is no urgency for the Respondent to return to Singapore. (emphasis added)

9.32.  The mutual friend is one Mr Yeung.  The Petitioner had written to ask Mr Yeung to

‘ state that [the Respondent] has not reported to his employer on his need to be in HK on 28Jul2020 and that he is not absolutely necessary to go back to Singapore.

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

9.33.  Mr Yeung did not respond to this request.  But since the commencement of the proceedings, Mr Yeung had filed an affirmation stating that the above message did not reflect the true contents of their conversation.  As Judge M Lam observed, Mr Yeung had not complained to the Petitioner that her statement was untrue and he did not clarify what the true facts were. She held that :

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

9.34.  We agree with her view.

7)  Discretion to be exercised afresh

9.35.  The wrong exercise of discretion by Judge M Lam in the manner explained in paragraph 9.24 above entitles this Court to exercise the discretion afresh.  On the facts of this case, having regard to the following, our view is that the September Prohibition Order should not have been granted :

1)  The Respondent is exercising his right to leave Hong Kong to pursue a legitimate purpose of resuming his occupation.

2)  To prevent the Respondent from leaving Hong Kong carries with it a likely risk that he may lose his job which affects his livelihood and his obligations towards the Petitioner particularly when the pending enforcement applications against the Respondent will not be heard any time soon.

3)  This is not a case where the evidence points only to the conclusion that the Respondent would leave Hong Kong in order to avoid his obligations towards the Petitioner.  Regard must be given to the fact that since June 2019 when he began his new job in Singapore he had returned repeatedly to Hong Kong where his children and parents are living.  He had attended the Court proceedings below.  In other words while the Respondent is about to depart from Hong Kong to Singapore as the new place of residence for him and his wife, it is not shown that by reason of his departure, he would sever all his ties, both family and financial, with Hong Kong and be unlikely to return to Hong Kong causing the enforcement of the judgment to be obstructed and delayed.  It is recognized by the Respondent that the Petitioner may apply for new prohibition orders in the future if the circumstances required, particularly when there are still pending proceedings between the parties.

4)  Proper regard should now be made to the MPF payment to the Petitioner.

9.36.  ;Accordingly the appeal was allowed and the September Prohibition Order was set aside. 

XI.      Costs

10.  We had made no orders as to costs of the appeal and below having regard to the fact that the Respondent did not succeed on all his grounds of appeal and some of the matters we had considered, such as the payment of the MPF sum was only finalised recently and the arguments on freedom of movement and travel and right to work were only fully ventilated in this appeal.