WKI aka IWKV v. CKW aka WCKW

FCMC 11528 / 2019

[2024] HKFC 170

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 11528 of 2019

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DECISION
(Committal: access)

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1.  The parties separated in 2018 after a marriage of 11 years.  They have a daughter (“the Child”) born in 2010.  In 2019, the Petitioner mother (“Mother”) petitioned for a divorce.  This started their fight in this litigation which was filled with acrimony, hatred and mistrust.

2.  This is the Respondent father’s (“Father”) application for an order of committal for Mother’s non-compliance of court orders on interim access to the Child. 

3.  The orders in issue are made by Deputy Judge M. Lam on 16 July 2020 (“2020 Order”) and 1 April 2021 (“2021 Order”).

4.  Under the 2020 Order, the parties shared the care of the Child with detailed interim care arrangements set out.  It was in the middle of the Covid-19 pandemic, hence the order provided for situations when the school was suspended or not suspended during term time. If school was suspended, Father has weekly staying access to the Child for 3 days. If school was not suspended, Father has day access two times in week one and 3 days staying access in week two.

5.  On 24 October 2020, Father was reported to have assaulted Mother inside a ladies’ washroom at a shopping mall (“Toilet Incident”).  This led to the variation of access by the 2021 Order under which the share care arrangement was suspended until the determination of the criminal trial with respect to the Toilet Incident. Thereafter, Father has interim access for the first 2 weeks at the office of the Social Investigation Officer for not more than 2 hours, and thereafter Father was to have weekly day access on Sunday. The Social Investigation Officer was empowered to lengthen and shorten each access session including staying access if appropriate and necessary.

6.  Father was bound over in the criminal case. Interim access should have been resumed thereafter.

7.  The parties have a CDR hearing subsequently on 12 November 2021.  The terms of Father’s interim access was further varied by the court after the CDR hearing. Father was disgruntled with the variation. He took out applications for further variation and appeal.  He also lodged an ex-parte application for leave to apply for the present committal proceedings.

8.  A final order of joint custody and shared care and control was made on 3 October 2022 after trial.[1]

9.  Father, being the applicant in this committal application, has the burden to prove beyond reasonable doubt not only the existence of a breach, but also that the breach was intentional and Mother knew all the facts which made it a breach of the order. 

10.  Father stated in the Statement filed in support of his application (“the Statement”) the following grounds of committal:

“From the Court Orders dated on (sic) 16 July 2020 and 1 April 2021, regular access to the Child was granted to the Respondent. However, the Petitioner restricted the Respondent to have access to the child during the periods of 25 August 2020 to 17 September 2020, 24 October 2020 to 1 April 2021 and 27 June 2021 to 9 September 2021.”

11.  Mother admitted that the access to the Child did not take place during the above periods. She said that access was not appropriate at that time because of the then public health condition and the Child’s well-being, in particular, (1) she found that the Child has been psychologically disturbed after having viewed video of sexual intercourse and other images of naked women in Father’s phone during a staying access with Father.  Father denied and said that the phone was previously used by Mother, he had not used that phone for photos or other media files and he did not know what media files Mother had left in it; and (2) the Toilet Incident. Mother said these incidents caused fear, nervousness, emotional disturbance of the Child who became hesitant and ambivalent towards seeing Father.

12.  She also criticised the Statement filed by Father for lack of requisite particulars and asked for an order to set aside the leave to apply for committal. She cited Cheung Hing v Wong Chor Cheung, HCMP 1828/2011, 7 February 2013,in which Anthony Chan J held that:

“31. Finally, there is serious and fundamental deficiency in respect of the Statement concerning the particulars of Wong’s alleged failure to comply with Orders 1 to 4. It is again trite that the Statement is treated as a quasi-Indictment. That document should set out proper particulars so that Wong would know precisely what it is that he had allegedly done or failed to do in breach of court order. Such particulars are required so that Wong can defend the proceedings properly and, if he wants to, he can try to purge his contempt (see Hong Kong Civil Procedure 2013, vol 1, para 52/2/6). …”

13.  Order 52 rule 2 of the Rules of the High Court provides that an application for leave to apply for committal must be supported by a statement setting out, among others, the grounds on which the committal is sought.

14.  Civil contempt proceedings are quasi-criminal in character because the liberty of the contemnor is at stake.  The statement in support of the application is treated in a similar manner as an indictment in criminal proceedings. It is well established that the statement shall state all factual elements which, if proved, are sufficient to establish the contempt, but not the evidence in support.  It shall state each of the specific dates, how and in what manner is it alleged the order has been breached on each of the occasions, with sufficient particulars for a reasonable person in the position of the alleged contemnor to enable him to defend himself, by telling him exactly what is it that he has done or has failed to do which constitutes the contempt. It is not sufficient to include these particulars in other document such as affirmations. Ultimately, the extent of particularity required depends on the nature of the order alleged to be breached and the background of the case. (Hong Kong Civil Procedure 2024 §52/2/6; Kao Lee & Yip v. Koo Hoi Yan (2009) 12 HKCFAR 830, CFA at 862I–J, per Sir Gerard Brennan NPJ; Chiltern D. C. v Keane [1985] 1 WLR 619 CA at 622, per Sir John Donaldson MR; Cosimo Borrelli v Allen Tak Yuen Chan [2018] 2 HKLRD 496 per Kwan JA).

15.  The Statement is defective as it failed to identify the specific dates on which it was said Mother has breached the two orders, and failed to state with reference to each of these dates with sufficient particulars of what Mother has done or has not done in breach of the two orders.

16.  The next question is whether discretion shall be exercised to allow a cure of the irregularities.  Sir Gerard Brennan NPJ has said in Kao, Lee & Yip v Koo Hoi Yan at §73:

“Although the procedures governing committal for contempt are strictly enforced when needed to safeguard the liberty of an alleged contemnor, the discretionary power to dispense with a procedural requirement is available in appropriate case. As Lord Woolf MR said in Nicholls v Nicholls [1997] 1 WLR 314, 326:

‘… Like any other discretion, the discretion provided by the statutory provisions must be exercised in a way which in all the circumstances best reflects the requirements of justice. In determining this the court must not only take into account the interests of the contemnor but also the interests of the other parties and the interests of upholding the reputation of civil justice in general. Today it is no longer appropriate to regard an order for committal as being no more than a form of execution available to another party against an alleged contemnor. The court itself has a very substantial interest in seeing that its orders are upheld. If committal orders are to be set aside on purely technical grounds which have nothing to do with the justice of the case, then this has the effect of undermining the system of justice and the credibility of the court orders. While the procedural requirements in relation to applications to commit and committal orders are there to be obeyed and to protect the contemnor, if there is non-compliance with the requirements which does not prejudice the contemnor, to set aside the order purely on the grounds of technicality is contrary to the interests of justice …’ ”

17.  The Statement was drafted in a very sweeping manner without even identifying the specific dates of the breach correctly.  Father has included the dates on which the Child should be under the care of Mother.  It is wrong to do so because Mother was not required under the orders to give access to Father on those dates.  Father also failed to set out the particulars of the manner of breach on each of the occasions. These missing particulars in the Statement are crucial elements. The defects are not mere technicality. The leave granted for the committal proceedings should therefore be set aside and the Summons filed on 6 January 2022 should be struck out.

18.  The above decision to set aside the leave put an end to this application without the need to deal with the substance of the complaint.  I would like to take this opportunity to remind parties that a court order is made to be obeyed.  It is a very serious matter if a party fails to comply with court order and choose to take the matter in his or her own hand. At the material times, the court has been managing the case, social investigation officers were involved. None of the reasons offered by Mother is an answer to her non-compliance of court orders for these extended periods. If Mother has concerns about the Child’s well-being, she should approach the social investigation officers and/or seek a court order for variation of the access arrangement. As a matter of fact, she had obtained an order for variation at the hearing on 1 April 2021, but regrettably failed to comply with it.

19.  I shall also mention that no penal notice has been endorsed on the 2020 Order, and prior to 6 September 2021, the 2021 Order. Although this per se does not prevent the court from making an order of committal, this is a factor to be taken into account on sanction.  A court will normally not punish a party for civil contempt of court in breach of court order without the applicant having proved that the order at issue with endorsement of penal notice has been personally served on the alleged contemnor or that the alleged contemnor is otherwise aware of the consequence of a breach of the order, for example the alleged contemnor was informed of the penal nature when appeared at the hearing in person: Yeung Lin Mui v Chu Kwok Wai [2020] HKCFI 2655, LPK v HSH, FCMP 237/2011, 5 April 2012.  None of these has been proved by Father in this case.

20.  It has almost been 5 years since the petition was presented in 2019.  The parties have gone through lots of hard-fought applications before the court. Acrimonious relationship of the parents will create undesirable and unhealthy environment for the upbringing of their child. At this stage, the outstanding issues are the ancillary relief dispute and another contempt application lodged by Father. The parties shall sensibly approach their differences and resolve them with procedural economy and proportionality.

21.  Though the leave granted was set aside, having regard to Mother’s conduct leading to this application, on a nisi basis, I make no order of the costs of this application.