“Legal principles for sentencing for contempt of court
2. The starting-point is to acknowledge that contempt of civil court orders is a serious matter and that court orders are made to be obeyed. A prime consideration of the court in sentencing contempt is to “signal importance of demonstrating to litigants that the orders of these courts are to be obeyed”. By “litigants”, it is clearly referring to litigants in general and not just the contemnor himself. See Questnet Limited v Wilfred Royce Lane, HCA 1475/2006, Chu J (as she then was), 23 June 2008 (on sentence).
3. The object of the sentence is both to punish conduct in defiance of the court’s order and to serve a coercive function by holding out the threat of future punishment as a means of securing the protection which the order was primarily there to do: Crystal Mews Ltd v Metterick & ors [2006] EWHC 3087, §8, Collins J; re Barrell Enterprises [1973] 1 WLR 19, at 27C-D, English CA. The court has to balance the 2 objects.
4. The sentence for contempt may range from a fine to a term of imprisonment. The UK Contempt of Court Act 1981 imposes a maximum term of 2 years’ imprisonment but Hong Kong does not have that statutory limit.
5. Imprisonment should be regarded as a sanction of the last resort. Any custodial sentence should be as short as possible consistent with the circumstances of the case. Willwin Development (Asia) Co Ltd v Wei Xing, HCMP 2946/2014 (unreported, 16 November 2015), B Chu J, §4(f); CMA CGM v Ng Chip Choi Maurice, HCMP 2988/2014, 12 March 2015, Au-Yeung J, §24(1).
6. The court may suspend a term of imprisonment for such period or on such terms as the court deems fit: CMA CGM v Ng Chip Choi Maurice, §24(2); Order 52, rule 7. This is an “absolute discretion” but it would be difficult to think of circumstances where a suspended order should be made when nothing further remains to be done to comply with the order: Hong Kong Civil Procedure 2016, Vol 1, §52/7/2.
7. The court will consider if there are:
(a) Aggravating factors: Hao Xiaoying v Wong Yiu Lam William & Ors, HCMP 1968/2014, 2 March 2015, Anthony Chan J;
(b) Mitigating factors: Ge Transportation (Shenyang) Co Ltd v Lu Jinxiang, HCMP 1792/2013 (unreported, 22 January 2014) (DHCJ Marlene Ng); and
(c) Acts to purge the contempt, ie acts to atone for a contempt, eradicate it or cleanse it of its previous ill-effect which, in the case of a mandatory order, may be fulfilled if the contemnor thereupon does the act or causes it to be done: CJ v Flintshire BC [2010] EWCA Civ 393, at §6.
8. Relevant factors (which are not exhaustive) include:
(a) The nature of the order and breach in question, and the extent of the breach: Questnet Limited v Wilfred Royce Lane.
(b) Whether the contempt was contumacious or unintentional, the reasons, motives and state of mind: Hong Kong Civil Procedure 2016, Vol 1, §52/9/2.
(c) Whether the claimant has been prejudiced by virtue of the contempt and whether the prejudice is capable of remedy: Crystal Mews Ltd v Metterick, §13.
(d) Whether the contemnor appreciates the seriousness of the deliberate breach: Crystal Mews Ltd v Metterick, §13.
(e) Whether the contemnor has cooperated: Crystal Mews Ltd v Metterick, §13.”
(i) 判刑首要考慮是給予不限被定罪一方或與訟雙方一個清楚的訊息，即遵從法院命令的重要性；
(ii) 判刑的用處是懲罰違反法院命令的一方，並帶出一個預警予與訟雙方，法院會以強制的權力判罰違反法院命令的一方以保障法院命令得以遵從；
(iii) 藐視法庭罪的判刑範圍甚廣，可判罰款，亦可判監，但法例上並無訂明監禁刑期之法定上限；
(iv) 因應每宗案件的案情，在判監的情況必須是萬不得已，最後的選擇，監禁刑期亦應該盡量短；
(v) 若法院認為適切，亦可以將一項監禁刑期判以緩刑替代。這完全是一個絕對酌情的方法，但當被定罪者情況已再無空間履行已違反的法院命令，判以緩刑的確是一項難事；
(vi) 簡要的，在判刑時，法院需要考慮 (a) 是否存有加刑因素；(b)被定罪一方的求情理由；及(c) 肅清藐視法庭行為效力。
(vii) 相關考慮因素有(a) 違反何等法院命令及其嚴重性；(b) 被定罪者的主觀想法，他的行為是否並非蓄意；(c) 對方（女方）是否被影響而面臨不利的局面；(d) 被定罪者是否明白違反法院命令的嚴重性；及(e) 被定罪者是否合作。