YCKS v. MPKC

FCMC 5771 / 2018

[2018] HKFC 203

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 5771 OF 2018

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BETWEEN

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J U D G M E N T

(Committal – Reasons for Sentence)

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1.  This reasons for sentence has to be read in conjunction with my judgment handed down today, I find the respondent (“the father”) has committed contempt of court by failing to comply with my order dated 27 April 2018 (“the varied MPS order”), an order given after trial of the petitioner’s (“the mother’s”) variation of MPS. The sum of which due and owing is subject to clarification by the mother’s solicitors because the father has been paying rent of the matrimonial home continuously.

2.  Deputy District Judge I. Wong (as he then was) has succinctly summarized the principles on sentencing for committal / contempt of court in family proceedings in YKL v. YCF, FCMC 14949 of 2013,

“The Principles

3. The purpose of the remedy for contempt of court is to ensure obedience to the court’s order. Committal affects the liberty of the subject the court will only make an order for committal as a last resort and if there are other methods of enforcing compliance with the order those will be used: see Butterworths Family Law Service, Blinder 4(1), at § 3297.1.

4. In W v H (No 3) (Contempt in Financial Remedy Proceedings and Costs) [2015] EWHC 2842 (Fam), Parker J, set out the stages to consider when sentencing for contempt:

5. There are a number of stages:

(i) The court does not have to commit to prison, but there is no principle that the term should not be immediate on the first breach.

(ii) The alternatives are limited.

(iii) The court can make no order, adjourn, fine, requisition assets and make a mental health order.

(iv) The length of a term of imprisonment must be decided without reference to whether it is to be suspended.

(v) The length of the term depends on the court's objectives.

(vi) It must bear some reasonable relationship to the two year maximum.

(vii) Suspension powers are wider than in the criminal context.

(viii) Length of suspension needs to be considered separately, though may be linked to continuing compliance with the underlying order.

(ix) The court must consider the context.

(x) The court cannot ignore parallel proceedings, and the court will not want the contemnor to be punished twice for the same events.

(xi) The court should explain the reasons for its choices.”

6.  I heard the father’s mitigation. He is repeating himself that he has no means to pay. I do not see he has signs of contrition. Nevertheless, I take into account, even without medical certificates, that he has been suffering from high blood pressure and was hospitalized for some period in October 2018.

2.  Be it committal to prison is last resort in family proceedings, I see no other method to enforce the varied MPS order. I am aware I have power to suspend the sentence but the father’s determination of non-payment of maintenance pending suit as ordered has prevented me from doing so. I aware the father’s repeated comment that the varied MPS order is a nonsense, I do not see he has signs of contrition. I see no other mitigating factors apart from his health conditions.

3.  I therefore sentence him to a period of 4 weeks’ imprisonment.

4.  I accept the usual costs order for committal proceedings is on indemnity basis and I see no reason to depart from the general rule.

4.  I make the following order:

(i) I order the father (the respondent) be committed to prison for a period of 4 weeks. The father be released subject to full payment of the sum of HK$972,000.

(ii) The father (the respondent) do pay the costs of the mother’s (the petitioner’s) summons, on an indemnity basis, to be taxed if not agreed.

(iii) The mother’s (the petitioner’s) own costs be taxed in accordance with the Legal Aid Regulations.

(iv) The mother’s (the petitioner’s) solicitors do fix a date for 1^st appointment within 14 days after the father’s (the respondent’s) release from prison.