K v. A

HCMP 2186/2021

[2025] HKCFI 1024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2186 OF 2021

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J U D G M E N T

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INTRODUCTION

1.  By originating summons dated 23 December 2021, the applicant, Ms K, applies to commit the respondent, Mr A, to prison for contempt of court.

2.  This is the trial of the committal application.

3.  K and A are sister and brother.  They also have a sister called P.  Their mother is Ms HVD.  HVD is now in her 80s.

4.  On 14 December 2022, HVD was declared by the court to be a mentally incapacitated person under Part II of the Mental Health Ordinance, Cap 136, and a committee was appointed on the same day to manage her property and affairs in the mental health proceedings in HCMH 48/2021.  K was the applicant and A the respondent in those proceedings.  (There was a dispute over whether P was also an applicant, but that dispute is not presently material.)

5.  The orders and undertaking, which K now alleges A to have breached and which form the subject matter of the committal application, were made in the mental health proceedings.

6.  K originally put forward four counts of contempt, as reflected in the revised list of issues dated 27 February 2024.  Mr Felix Tam, appearing with Mr Kevin Leung for K, confirmed at closing that she no longer relies on one part of Count 3 and no longer pursues Count 4.  I set out below the three counts, as revised.

The three counts of contempt

7.  Under Count 1, K contends that A was in breach of para 1 of the order made on 18 June 2021, which read:

“[A] do forthwith upon the terms of this order coming to his attention disclose the exact whereabouts of HVD to the Applicant’s solicitors.”

8.  Under Count 2, K contends that A was in breach of para 2 of the same order, which read:

“[A] do take all necessary steps to return HVD to Hong Kong within 14 days after being served with this order and make HVD available to be examined by the Court at the adjourned hearing.”

9.  Under Count 3, K contends that A was in breach of an undertaking to return HVD to Hong Kong in time to attend a hearing fixed for 13 October 2021.  It is K’s case that the undertaking was made on A’s behalf by his solicitor, Mr Bowers of Messrs Bowers, at a hearing on 21 July 2021.

10.  In this judgment, I shall refer to the order made on 18 June 2021 as “the June order”.  The orders under Count 1 and Count 2 will be called “the disclosure order” and “the return order”, respectively, and the undertaking under Count 3 “the alleged undertaking”.

11.  A denies that he was in breach, as alleged.  He also denies that the alleged undertaking was made.  In any event, even if he was in breach, he did not have the necessary state of mind such that he should be held liable for contempt.

12.  This committal application therefore primarily revolves around factual disputes between the parties.

13.  A was represented by Ms Audrey Eu, SC and Ms Ann Lee at the trial.

The witnesses and the affirmation evidence

14.  K testified.  She called no other witness.

15.  After the close of K’s evidence, A elected to testify. He also called three other witnesses:

(1)  P;

(2)  Ms AMN, a domestic helper who has been looking after HVD since November 2020; and

(3)  Mr EAP, a Singaporean lawyer who gave advice to A in October 2021.  He gave evidence by video link.

16.  As previously directed, the parties had agreed on a list of affirmations to be used at the trial.  They included those filed in the mental health proceedings and those filed in these committal proceedings. Apart from the testimony of the witnesses mentioned above, also admitted into the evidence were three affidavits made by Mr Li Long Fung (“Li”), a solicitor of Messrs Bowers, and one affirmation made by HVD.  Neither of them was called upon to testify.

THE MENTAL HEALTH PROCEEDINGS

17.  It is convenient to set out at the outset a timeline of the key developments in the mental health proceedings.  Some of the affirmations filed in those proceedings are used as evidence in these committal proceedings.  They were made from June 2021 to May 2022.  I will highlight the material affirmations in the timeline below.  In examining those affirmations, it is important to read them in the proper context and to appreciate at which stage of the mental health proceedings those affirmations were made.

18.  On 10 June 2021, K commenced the mental health proceedings by way of an ex parte originating summons.

19.  On the following day, she and P applied for an urgent injunction against A.  The application came before Deputy High Court Judge MK Liu.  The judge adjourned the application for a week to give time to the applicants to consider certain points discussed at the hearing, and also to invite the Official Solicitor to give his view.

20.  The adjourned hearing took place on 18 June 2021.  At the conclusion of that hearing, DHCJ MK Liu made the June order, which included the disclosure order and the return order.  He also granted leave to the applicants to serve the order on A by email and by leaving at the address of Bowers.

21.  When the June order was made, HVD was in Singapore.

22.  According to A, he was informed by Bowers of the June order on 19 June 2021.

23.  On 24 June 2021, A took out a summons to stay the June order pending an intended application to discharge or vary that order. That was supported by the 1^st affidavit of Li dated the same date.  This affidavit is a material document in Count 1.  I shall call it “the Li affidavit” below.

24.  On 21 July 2021, the stay summons came before me (“the 21 July hearing”).  I dismissed the summons at the end of the hearing.

25.  On 31 August 2021, A took out a summons to discharge or vary the June order.  That was supported by the 1^st affirmation of A dated 1 September 2021.

26.  On 7 October 2021, K and P took out a summons to continue the June order.

27.  Shortly before the hearing of the two summonses, the 2^nd affirmation of A dated 4 October 2021 and an affirmation made by HVD dated 5 October 2021 were filed.

28.  I would pause here to highlight that the 1^st and 2^nd affirmations of A and the affirmation of HVD are material evidence in Count 2.  Since they were filed in 2021, I shall refer to them below generally as the evidence of A in 2021 and, more specifically, “A’s 1^st affirmation”, “A’s 2^nd affirmation” and “the HVD affirmation”, respectively.

29.  Both summonses came before me on 15 October 2021.[1]  I dismissed the discharge summons and continued the return order but granted a temporary stay of its execution up to 5 November 2021 for medical examination to be conducted on HVD to assess her mental capacity in Singapore by video link.  See my decision at [2021] HKCFI 3213.

30.  The contemplated medical examination did not take place during the temporary stay period.  The reasons can be seen in my decision made at a later hearing on 13 May 2022: see [2022] HKCFI 1486.

31.  On 12 January 2022, I gave directions for HVD to be examined by Dr Wong Chung Kwong, a specialist in psychiatry in Hong Kong, via video link, with the assistance of Dr Rajesh Jacob, a doctor in Singapore.

32.  The medical examination took place on 20 January 2022 while HVD was in Singapore.

33.  Dr Wong compiled his report, which was lodged with the court on 17 February 2022.  In essence, he was of the opinion that HVD was suffering from major neurocognitive disorder due to Alzheimer’s disease and was a mentally incapacitated person.  But she retained her social cognitive function such that she was able to make decisions as to where she would want to live.

34.  Two more hearings took place in May and November 2022, in which the court gave directions for the conduct of the inquiry scheduled to take place on 13 and 14 December 2022.

35.  On 31 October 2022, HVD returned to Hong Kong.

36.  At the conclusion of the inquiry hearing on 14 December 2022, I made a declaration that HVD was a mentally incapacitated person and a committee was appointed to manage her property and affairs.  See the decision at [2022] HKCFI 3856.

37.  In the mental health proceedings, A was represented by Bowers (except for some brief periods where another firm was retained to conduct taxation).  From its commencement up to shortly before the hearing in November 2022, A’s stance was that HVD was not a mentally incapacitated person.  As recorded in my decision, he had gone to great lengths to adduce both factual and medical evidence to support his stance.  It was only at the hearing in November 2022 that he confirmed that he would no longer challenge the medical evidence adduced by K.

THE COMMITTAL APPLICATION

38.  The present committal application was commenced in December 2021.  That was at a time after the court dismissed A’s discharge summons but before HVD underwent any medical examination for assessment of her mental capacity.

39.  Only short affirmations were filed by K and A in relation to the committal application.  In May 2022, I granted leave to set down the application for trial.

40.  The pre-trial review hearing took place in December 2023.  It transpired at that hearing that there had been a change of A’s legal team in October 2023.  Previously, as in the mental health proceedings, he had been represented by Bowers.  After the new legal team came on board, he was advised to put in further evidence in opposition to the committal application.  On 25 January 2024, I granted leave for him to file a further affirmation of his, and the affirmations made by P, AMN and EAP.

41.  In this judgment, I shall refer to these latest affirmations generally as the evidence of A in 2024.  As it will become clear shortly, the credibility of A’s evidence can be usefully tested by a comparison of his evidence in 2024 against that in 2021.

K’S CASE

42.  In the mental health proceedings, it was K’s case that HVD had since 2019 shown signs of memory loss and confusion.

K’s evidence in the mental health proceedings

43.  Based on the consultations which HVD had had with a number of doctors, K contended that HVD was a mentally incapacitated person or a vulnerable adult who was suffering from dementia and was therefore not capable of exercising her free will to make decisions for herself, including deciding where to reside, whether to travel and how to dispose of her property.

44.  She referred to a referral made by a government doctor in Hong Kong in October 2020 to a private psychiatrist upon noting behavioural and psychological symptoms of dementia shown by HVD.  K also referred to the diagnosis made by a specialist in geriatric medicine in November 2020.  The diagnosis was Alzheimer’s disease.  Medication was prescribed to treat the dementia.  K further relied on the report of a psychiatrist who examined HVD on 11 May 2021.  The doctor opined that HVD had been suffering from major neurocognitive disorder due to Alzheimer’s disease and that she was a mentally incapacitated person within the meaning of the Mental Health Ordinance. 

45.  It was K’s case that on about 30 May 2021, HVD was clandestinely removed by A from Hong Kong to Singapore.  The removal was done without the consent or knowledge of the other family members.  Before that, HVD had been residing in Hong Kong for a few years.  K alleged that A had been taking advantage of HVD’s vulnerability and had procured her to sign various documents to transfer her assets to himself.  Furthermore, as revealed in a telephone conversation on 1 June 2021, A had abducted HVD holding her hostage to force K to drop a legal case against him in Hong Kong, which concerned some family assets.  It was K’s contention that the removal of HVD to Singapore was done solely to advance A’s agenda and for his own benefit.

46.  A had also indicated that he might take HVD to Spain or Dubai and claimed that K might never see her again.

The June order

47.  K therefore commenced the mental health proceedings and sought, on an urgent basis, orders from the court to facilitate the repatriation of HVD back to Hong Kong such that the court could exercise its protective jurisdiction over her, and to restrain A from further dissipating her assets.

48.  The court acceded to her application and made the June order.

49.  I reproduce below the relevant parts of the order:

“WHEREAS [HVD] is an adult Hong Kong permanent resident, ordinarily resident in Hong Kong, and currently believed to be in the Republic of Singapore at an address the details of which are currently uncertain.

AND WHEREAS this Honourable Court has reason to believe on the basis of the information presented to it that HVD:-

(1)  May be mentally incapacitated, subject to undue influence or other disabling circumstances.

(2)  May have been removed from Hong Kong in circumstances where she lacked or would lack capacity to consent contrary and where such removal appears to be contrary to her best interest.

(3)  May be wrongfully confined or restricted by third parties contrary to her true wishes and best interest.

(4)  May be incapable therefore of expressing her true wishes.

(5)  May be unwilling to be or remain in the Republic of Singapore or that it may be contrary to her best interest to so remain.

AND WHEREAS this Honourable Court is anxious to protect and secure the well-being and best interest of HVD, to ascertain whether she is capable of decide her country and place of residence, and to ensure that she may freely express her wishes concerning her country and place of residence if she is so capable.

IT IS ORDERED THAT:-

1. [A] do forthwith upon the terms of this order coming to his attention disclose the exact whereabouts of HVD to the Applicant’s solicitors.

2. [A] do take all necessary steps to return HVD to Hong Kong within 14 days after being served with this order and make HVD available to be examined by the Court at the adjourned hearing.

3. Without prejudice to Paragraph 2 above, pending further order, [A], whether by himself or by instructing or encouraging any other person, be restrained from:-

(1)  Taking any steps to dispose of, deal with or diminish the value of HVD’s assets, whether within or outside Hong Kong, whether in HVD’s own name or not, and whether solely or jointly owned.

(2)  Procuring HVD from executing, sign off any documents or vote at any meetings or give instructions to any third parties, or otherwise procuring HVD from taking any other steps which would have the effect of divesting, dissipating, removing and/or otherwise diminishing the value of her assets, whether within or outside Hong Kong, whether in her own name or not, and whether solely or jointly owned.

4. Liberty is granted to [A] and/or HVD to apply to vary or discharge the orders herein on notice to the Applicants’ solicitors.

…”

50.  Para 1 is the disclosure order and para 2 is the return order.  Leave was also granted to K to serve the order and court documents on A and HVD out of jurisdiction and to effect service on them by substituted service by email and by leaving at the office of Bowers.

51.  On the same day, substituted service by way of email was effected.

52.  On 24 June 2021, Bowers filed a notice to act for A.

Count 1

53.  Under Count 1, K contends that A failed to comply with the disclosure order.

54.  In a letter dated 30 June 2021 from Messrs Oldham, Li & Nie (“OLN”), solicitors acting for K (in both the mental health proceedings and the present committal proceedings), to Bowers, it was pointed out that A was already in breach of the disclosure order and he was demanded to inform K immediately and in any event no later than 2 July 2021 the exact whereabouts of HVD.  OLN also reminded A to comply with the return order within 14 days after being served, namely by 2 July 2021, and make her available to be examined by the court at the adjourned hearing to be fixed.

55.  Bowers replied by their letter dated 2 July 2021. This letter features prominently in both Count 1 and Count 2.  I shall call it “the 2 July letter”.

56.  In the letter, Bowers denied that A was in breach of the disclosure order.  They referred to two exhibits to the Li affidavit which was served on Bowers on 25 June 2021. The first exhibit was a copy of a lasting power of attorney signed by HVD and dated 10 June 2021.  The document contained an address of HVD.  The second exhibit was a copy of a statutory declaration signed by HVD on 22 June 2021.  Again, the document contained an address of HVD, which was the same as that appearing in the lasting power of attorney. Bowers stated that the two documents recorded the exact whereabouts of HVD.

57.  Bowers further wrote:

“Our client has complied with paragraph 1 of the Order by disclosing the LPA and the Statutory Declaration to your firm on 25 June 2021. Although our client has applied to stay the Order and will be applying to discharge/vary the Order, he specifically authorised us to disclose these two documents recording HVD’s exact whereabouts in Singapore to you on 25 June 2021 as he has absolutely nothing to hide.”

58.  As recorded in the lasting power of attorney, HVD authorised A and his wife to make decisions about her personal welfare and property and affairs in the event that she lost her mental capacity. Included in the lasting power of attorney was a certificate signed by a Dr Chong, a specialist geriatrician in private practice in Singapore, to the effect that HVD understood the purpose of making the document and the powers that would be given to the donees.  The document appeared to be in standard form.  In the box “Local Mailing Address”, an address in XX Road was put down.  I shall refer to this as “the XX Road address”.

59.  In the statutory declaration signed by HVD, she said that she had been residing in Singapore since 30 May 2021 and was happy there, and that she wanted to enjoy her holidays with her grandchildren and her daughter-in-law while A was taking care of her.  She also confirmed that she was of sound mind and she understood the nature and purpose of the statutory declaration.  At the beginning of the document, it was stated that HVD “currently” resided at the XX Road address.

60.  It is K’s case that the service of the Li affidavit on 25 June 2021 did not amount to compliance with the disclosure order for the following reasons:

(1)  The disclosure order required the disclosure of the exact whereabouts of HVD, ie her current location.  What was disclosed in the lasting power of attorney and the statutory declaration was a residential address.

(2)  The disclosure order required A to disclose the exact whereabouts “forthwith”.  The Li affidavit was served six days after he was being served with the order.  There was therefore a delay.

(3)  The XX Road address appeared in the lasting power of attorney and the statutory declaration only.  There was no confirmation under oath of that address in the main body of the Li affidavit.

61.  Furthermore, K highlights para 3 of the Li affidavit, which read:

“I make this affidavit in support of [A’s] Summons dated today (Stay Summons)  for an Order that the terms of paragraphs 1 – 3 of the Order of Deputy Judge MK Liu dated 18 June 2021 (Order)  be stayed pending the final determination of [A’s] intended application to discharge or vary the Order (Discharge Summons)  …”

62.  As shown in this paragraph, the Li affidavit was used to support A’s stay summons.  It is clear on its face that it was not used to comply with the disclosure order.  Hence, K contends that A never in fact gave any order or instruction to Bowers to comply with the disclosure order by means of that affidavit.

63.  That is K’s case for Count 1.

Count 2

64.  It is a fact that HVD did not return to Hong Kong within the time stipulated in the return order, namely from 18 June (date of service of order)  to 2 July 2021 (14 days after service).  It is also a fact that she did not return to Hong Kong until much later, ie in October 2022.

65.  Under Count 2, K alleges that A was in breach of the return order.  She claims that he had blatantly turned a blind eye to the court order in that he had not returned HVD to Hong Kong, nor had he taken any steps to effectuate her return.  Instead, he had relied on unsubstantiated excuses and blatant lies in an attempt to justify his continuing failure.

66.  K relies on the 2 July letter.  In the letter, after referring to the lasting power of attorney and the statutory declaration, Bowers wrote:

“The combined legal meaning and effects of the LPA and the Statutory Declaration is that our client is in no position to return HVD to Hong Kong by today, or to make her available to be examined by the Court at the adjourned hearing of your clients’ Originating Summons. HVD will return to Hong Kong when she wants to return to Hong Kong. However, please do let us know when your clients have fixed a date for the adjourned hearing of their ex parte Originating Summons and our client will ask HVD to return to Hong Kong in time to attend that hearing as well as the hearing of our client’s intended application to discharge/vary the Order.” (underline added)

67.  K argues that at the time when the letter was written, the medical evidence produced by her was that HVD was a mentally incapacitated person.  In light of the serious doubt over her mental capacity, the lasting power of attorney and the statutory declaration could not be relied on in the first place to show that HVD had the ability to decide where she wanted to be.  Therefore, in the circumstances, A did not have any reasonable justification for his failure to comply with the return order.

68.  After the deadline in the return order (ie 2 July 2021), it is K’s case that A continued to be in breach.  He had been relying on HVD’s hernia condition in order to justify his failure to take her back to Hong Kong.  K says that in the two months in August and September 2021, A had arranged for HVD to see a number of doctors in Singapore as he was trying to shop around to get a sympathetic doctor who might opine that HVD would be unfit for travelling.

69.  On 7 September 2021, HVD was taken to see a Dr Ngoi.  The doctor advised against any travel plans for HVD for the next six months.  He produced the following certificate:

“This is to state that [HVD] has an umbilical hernia which has increased in size over the last few months.

She will need repair of the umbilical hernia when she is ready.

I have advised her against any travel plans for the next 6 months.”

70.  HVD did not return to Hong Kong to attend the hearing in October 2021.

71.  K contends that all along there was no urgency for performing hernia surgery on HVD as her condition had been followed up by doctors in Hong Kong.  In January 2021, her condition was described as “Early” and she was given a surgery date of 5 October 2022.  K says that A was using HVD’s hernia condition and Dr Ngoi’s certificate as an excuse to delay returning her to Hong Kong.

72.  This can also be seen from an offer which Bowers made to OLN by letter dated 21 October 2021 (“the October 2021 offer”).  The offer was that A would not object to HVD being subject to P’s sole care or to P returning to Hong Kong with HVD.  That offer was subject to, among other things, the condition that the June order and the order made on 15 October be discharged and the mental health proceedings be withdrawn with no order as to costs.

73.  K argues that the offer would be against the advice of Dr Ngoi.  This clearly shows that when it involved material benefits to his position in the mental health proceedings, A would not hesitate to agree to HVD returning to Hong Kong.  And that shows that he could completely ignore the medical advice which he himself obtained in Singapore.

74.  In summary, under Count 2, A was knowingly in breach of the return order, and the breach continued up to the hearing on 15 October 2021.

Count 3

75.  Under Count 3, K contends that A was in breach of the alleged undertaking. That undertaking was made orally by Mr Bowers at the 21 July hearing. 

76.  These were Mr Bowers’ words:

“I have verified my client’s instructions this morning. He confirms that him and HVD are in Singapore, and that COVID restrictions and quarantine allowing both him and her intend to be at the hearing in October, the hearing or the inquiry in respect of the originating summons on 13 October.”

A’S CASE

77.  I now turn to A’s case.

Factual background

78.  HVD has been taken care of by AMN since November 2020.  Before 30 March 2021, HVD lived with K in Hong Kong.  On about that date, as requested by HVD, A brought her to live with him at his place in Hong Kong.

79.  At that time, because of the COVID pandemic, they were in effect homebound.  In May, HVD told A that she missed her granddaughter (A’s daughter)  who was living in Singapore.  A told her that they could travel to Singapore and if she wanted, they could also then travel to Dubai and Spain.  HVD was delighted with the idea.

80.  On about 29 May 2021, HVD went to Singapore with A and AMN for holiday.  A stresses that at all times, they had maintained contact with P.  HVD and P had phone calls and exchanged messages from time to time.  A emphatically denies K’s allegation that he “abducted” or “wrongfully removed” HVD to Singapore.

81.  At that time, Singapore only imposed a 7-day home quarantine requirement.  Upon their arrival, HVD, A and AMN stayed at a place of A’s wife for that period.  After that, they moved to the place at the XX Road address.  That is the residence of A’s in-laws.

82.  On 18 June 2021 at 9:14 pm, OLN sent an email with the subject “HCMH 48/2021” to the address specified in the June order.  The attachments included copies of the June order, the court documents filed, the skeleton submissions and the hearing bundle used before the ex parte judge.

83.  On the following day, 19 June, A received an email from Bowers forwarding to him the email sent by OLN on the previous day.  It is therefore A’s case that the order only came to his attention on 19 June. He noted from the preamble to the June order that the court had a number of concerns over HVD. Upon learning of the terms of the order, on 22 June, he accompanied HVD to attend a lawyer’s office and HVD made the statutory declaration, in which she confirmed that she was on holiday in Singapore.

84.  I reproduce the relevant passages from A’s evidence filed in 2021:

“I was informed of the Order made against me by email from Bowers, my solicitors in Hong Kong, on 19 June 2021 … From the preamble to the Order, I note that, among other things, that Court was primarily concerned that [parts of the recital of the June order paraphrased here]

… Upon the terms of the Order being brought to my mother’s and my attention, I accompanied my Mother to attend the law office of [name and address omitted]… My Mother … made a statutory declaration … to clarify her views and wishes about being on holiday in Singapore and spending time with me, [A’s wife] and her grandchildren …”

85.  In his evidence filed in 2024, A said:

“I told my mother about this [ie the June order], and she was shocked. As she made the decision to come with me to Singapore and was happy about the trip, she could not understand how anyone would think that she was kidnapped.”

86.  Meanwhile, A sought advice from Bowers.  Based on their advice, A instructed them to issue a summons to stay the enforcement of the disclosure order, the return order and para 3 of the June order.

87.  The Li affidavit, which exhibited the lasting power of attorney and the statutory declaration of HVD, was served on OLN on 25 June 2021.

88.  In his evidence filed in 2021, A said:

“Each of the Statutory Declaration and the LPA records my Mother’s residential address in Singapore (being the exact whereabouts of my Mother)  … I had specifically authorised Bowers to disclose these two documents to the Applicants as I wanted to be transparent about where my mother was staying in Singapore.”

89.  In his evidence filed in 2024, A made a similar allegation:

“I in particular authorized Bowers to disclose the LPA and the Statutory Declaration to K and P so that they would know the whereabouts of HVD. I understand that Bowers exhibited these two documents in the Affirmation in support of the said summons.”

90.  In cross-examination, A repeatedly said that at that time he told Bowers the exact whereabouts of HVD and provided the two documents to them.  He asked Bowers to do what the law required though he did not instruct them how to present those documents.

91.  A also highlights that what was written by Bowers in the 2 July letter confirms that he had given the authorisation to them. See the extract reproduced in para 57 above.

Count 1

92.  Based on the above allegations, it is A’s case that he complied with the disclosure order by way of the service of the Li affidavit. As the Li affidavit was served just six days after the June order came to his attention on 19 June, he therefore also complied with the “forthwith” requirement.

93.  A also highlights the fact that K and P were able to speak to HVD shortly after her arrival in Singapore.  This shows that he all along had no intention to keep her whereabouts a secret.  The XX Road address is well known to the family.  According to A, that was the “go to” place for them in Singapore.  Lastly, K wrote a letter dated 28 June 2021 to, among others, the law firm at which HVD made the statutory declaration raising her concern over HVD’s safety.  In that letter, she herself referred to the XX Road address.

Count 2

94.  I now turn to A’s case on Count 2.

95.  According to his evidence filed in 2024, on about 26 June 2021, A tried to ask HVD whether she would want to return to Hong Kong.  He described her mother’s response as follows:

“My mother asked whether I was crazy to raise such an idea, given that we just arrived in Singapore on 29 May 2021. She said she wanted more time to spend with the family. AMN was present when I asked my mother this.”

96.  A tried to explain the mental health proceedings to HVD, but she did not seem to fully understand what the June order was about and the importance of it.

97.  After her refusal, A did not push further that day.

98.  After that failed attempt, A tried again from time to time asking HVD whether she would like to return to Hong Kong.  He would ask during mealtimes and when travelling with her in the car.  There were so many instances that A cannot now recall exactly when and where he spoke to HVD about it.  However, he recalls that every time, HVD would reject him and reason that she did not want to do so because of the quarantine policy in Hong Kong.

99.  A also asked AMN whether she would accompany HVD to Hong Kong, but AMN refused even though A threatened to fire her.  As HVD was very dependent on AMN for her personal needs, including going to toilet and showering, A did not consider it sensible or practical to have HVD go back to Hong Kong without AMN.

100.  It is AMN’s evidence that when they were in Singapore, she heard several times when A asked HVD to return to Hong Kong.  It was during mealtimes and when they were in the car on their way to temple.  She said there were many instances of such conversations but she cannot now recall exactly when and where those conversations took place.

101.  According to her recollection, the exchange would take place along the following line:

(1)  A would ask HVD whether she would like to go back to Hong Kong.

(2)  HVD would vigorously refuse and say that she was happily living in Singapore.

(3)  A would counter propose to HVD to just go to Hong Kong for a few days and then come back to Singapore.

(4)  HVD would tell him that she did not want to go as yet, because she did not want to be quarantined in a hotel.

102.  It is also AMN’s evidence that A asked her a few times whether she would be willing to accompany HVD to go back to Hong Kong so that she could continue to take care of her.  AMN refused.  She told A that she did not want to be quarantined alone in a hotel in Hong Kong.  In line with A’s evidence, she said that A even threatened to fire her if she did not accompany HVD to Hong Kong.  But AMN still refused.

103.  A says that his case is also corroborated by the evidence of P.

104.  In the evidence filed in 2024, P said that sometimes she would ask HVD whether she was ready and willing to go back to Hong Kong, but she refused every time.  She told P that she saw no reason why she should be put through the strict quarantine requirement, stay cooped up in a hotel room for between two to three weeks alone with her helper in Hong Kong.  She was also scared of the possibility of being tested positive of COVID and isolated without AMN or anyone to take care of her personal needs.

105.  P visited HVD in Singapore in April 2022.  She stayed until July.  While she was there, she travelled with HVD and AMN to the Philippines and India to visit relatives and friends.  During her stay, P told HVD that she could take her back to Hong Kong.  But HVD turned her down.  She told P that she was happy in Singapore with A and his family.  As P learnt from HVD, A had also been pushing her to go back to Hong Kong as well.  But HVD turned him down too as she was happy in Singapore and did not feel the need to go to Hong Kong given the long quarantine requirement.

106.  Based on the above allegations, A contends that there was no breach of the return order.

107.  The terms of that order required A to “take all necessary steps to return HVD to Hong Kong”.  Ms Eu emphasises that it did not require A to return HVD to Hong Kong per se.  Furthermore, when making the order, the court did not try to dictate where HVD should live and with whom.  The court was concerned with the liberty and wishes of HVD and wanted to make sure that she was capable of expressing her wishes and she could freely express those wishes.  The return order was therefore made not to compel her to stay in Hong Kong but rather to have her to be present in Hong Kong such that she would be “available to be examined by the Court”.

108.  On A’s case, it is very clear that HVD was able to express her wishes freely.  She was not wrongfully confined in Singapore.  Her wishes should therefore be respected.  On this point, the evidence of EAP and the conclusions drawn by Dr Wong on HVD’s mental capacity are directly relevant.

109.  EAP’s evidence is that A consulted him in October 2021.  EAP advised him that HVD should be assessed by a psychiatrist on her mental capacity and should be advised by a lawyer if she so wished.  EAP also advised A that he could not compel HVD to return to Hong Kong if she chose not to do so as this could be unlawful.  If the doctor had confirmed her mental capacity, she could decide what she wanted to do.

110.  At the time when EAP gave the advice, the examination by Dr Wong had not yet taken place.  Subsequently, Dr Wong confirmed in his report that while HVD is a mentally incapacitated person, she has retained her ability to express her wishes as to where she wants to live.

111.  Ms Eu submits that in the circumstances, there could be no breach of the return order.  A had tried to ascertain HVD’s wishes. She was able to express them – she did not want to go back because of the quarantine requirement.  He sought legal advice in Singapore (and in Hong Kong)  on the order. He took all necessary steps as permitted by the circumstances in an attempt to return HVD to Hong Kong. He could not possibly override HVD’s free will and force her to return.

112.  By the same token, it is submitted that even if there was a technical breach of the return order, A did not deliberately intend to disobey it.  Instead, he was prevented by the overall circumstances, particularly HVD’s contrary wishes, from taking all the necessary steps to return her to Hong Kong.  Therefore, there is no punishable contempt.

From July 2021

113.  The deadline imposed under the return order fell on 2 July 2021. K alleges that A failed to take all necessary steps to return HVD to Hong Kong by that deadline.  It is based on this breach that K invites the court to find A in contempt under this count.  Nevertheless, it is K’s case that even after the deadline, A continued to be in breach of the return order.  What then is the effect of the alleged continuing breach? I shall return to this issue in the discussion below. But I shall set out A’s case on this first.

114.  According to A, the pre-existing hernia condition of HVD had worsened during this period.  As observed by AMN, the area around HVD’s belly button grew bigger.  On 30 June 2021, HVD complained to AMN about stomach pain.  A brought her to see Dr Lee and Dr Packer, both general practitioners.  They referred HVD to see Dr Koh, who is a hernia specialist.

115.  On 3 August 2021, HVD consulted Dr Koh.  At the doctor’s suggestion, an ultrasound scan was done.  Based on the scan result, Dr Koh’s opinion was that the only definitive treatment for HVD’s para-umbilical hernia was surgical repair, the risks of enlargement would be present over time, and more importantly, there would be a risk of further complication if the defect was not addressed.  His opinion was further that the risk of that occurring was not high but not negligible either.  HVD could choose to manage this by observation.  But it would then be prudent for her to notify the minute she developed pain and sudden enlargement of her hernia.

116.  As the possibility of surgery was mentioned, A brought HVD to see Dr Ngoi for a second opinion on 7 September 2021.  A told the doctor about the Hong Kong court order and the plan to travel to Hong Kong. Dr Ngoi then advised against such travel and issued the certificate to that effect.

117.  At all times, A kept the family members informed of HVD’s condition.  A telephone conference was arranged for the family on 25 August 2021.  However, K refused to attend.

118.  On 5 October 2021, HVD signed the affirmation in the mental health proceedings stating her decision not to return to Hong Kong to attend the hearing scheduled for that month, citing her worsening hernia condition as a reason.  She also said that she did not think she would be fit enough to make the trip from Singapore to Hong Kong, particularly given that she would have to undergo the hotel quarantine in Hong Kong.

119.  On 25 October 2021, HVD complained about her bowel, digestive and hernia conditions.  She was brought to see another doctor on the following day.  On 1 November 2021, HVD complained again about abdominal pain.  She underwent an emergency surgery on that day.

120.  A denies K’s accusation that he was doctor shopping in order to get an opinion from a favourable doctor who would advise HVD against travelling.  He refers to the voluminous medical evidence which documents HVD’s hernia condition.  He refers to the need to get a second opinion in light of HVD’s age and condition.  He also refers to the difficulties of finding doctors when the COVID pandemic was ongoing.  In summary, HVD’s health condition simply would not have allowed her to return to Hong Kong.  A denies that he was using HVD’s medical condition as an excuse.

121.  A points out that at the hearing in October 2021, I granted a temporary stay of execution of the return order.  I did so because it was felt that if the examination of her mental capacity could take place in Singapore, it would save HVD from having to travel to Hong Kong which might expose her to the risk of catching the virus on the plane and it would also save her from having to go through the stringent quarantine requirement here.

122.  The health condition of HVD did not improve after the hernia surgery.  Her heart issue surfaced.  She was admitted to hospital for a few days in December 2021.

123.  HVD was assessed by Dr Wong in the examination conducted on 20 January 2021.  A’s position is that after that examination, the purpose behind the return order was fulfilled in substance.

124.  In April 2022, the quarantine policy in Hong Kong was considerably relaxed.  A therefore made arrangements for HVD to return.  He made flight reservations for her.  However, HVD had a sudden cardiac episode on about 2 July 2022.  She underwent another surgery.  It was only when she went for her checkup on 27 September 2022 that it was advised that she was fit to travel.

125.  In the end, she returned to Hong Kong with A on 31 October 2022.

Count 3

126.  As regards Count 3, A’s position is that Mr Bowers did not give any undertaking to the court at the 21 July hearing.  All he did was to indicate the intention of A and HVD.  It could not amount to a formal undertaking which is enforceable by way of contempt.

LEGAL PRINCIPLES

127.  The general principles governing civil contempt are not in dispute.

128.  Mr Tam refers me to a summary set out in the decision of High Fashion New Media Corporation Ltd v Leong Ma Li HCMP 932/2020, 26 July 2022 at paras 12 to 13:

(1)  The approach to committal for civil contempt by reason of a breach of a court order is a three-stage process, namely: (i)  to construe the relevant court order to ascertain its meaning and operation; (ii)  to determine whether the defendant has in fact complied with the orders as so construed; and (iii)  to consider whether any failure to comply was accompanied by the state of mind necessary to establish punishable contempt.

(2)  The burden is on the plaintiff to prove a defendant’s contempt beyond reasonable doubt.

(3)  An order should be construed strictly because the court is concerned with an order which has a potentially draconian effect on the commercial and economic freedom of an individual.  What must be ascertained is the meaning which the document would convey to a reasonable person having all the background which would reasonably have been available at the time the order was made.  This includes the purpose for which the order was made.

(4)  Once a failure to comply with an order is found, there is prima facie contempt.  It is for the defendant to show that it has always been impossible of carrying out the terms of the order.  Even in those circumstances, the contemnor should have applied to the court for further time at the first practicable opportunity.

(5)  It is normally not sufficient, by way of an answer to an allegation that a court order has not been complied with, for the person concerned to say that he “did his best”.  The only exception to that proposition is where the court order itself only orders the person concerned to “do his best”.

(6)  In relation to the mental element, it is not necessary to prove that the defendant’s conduct was contumacious, ie he deliberately intended to disobey the order.  It is sufficient to prove that he knew the facts which are said to make his act or omission a contempt and that such act or omission was not accidental.

(7)  Where the defendant wishes to put in issue a matter which is potentially exculpatory, an evidential burden arises, but the plaintiff continues to bear the persuasive burden to prove his case.  In such cases, there must be evidence supporting such exculpatory matter which is sufficiently substantial that it raises a reasonable doubt as to the defendant’s guilt.  Unless such a reasonable doubt is removed, the plaintiff fails to prove his case.  If there is a hypothesis which might reasonably be consistent with the defendant’s innocence, then he is also entitled to be acquitted.

129.  On the evaluation of evidence in contempt proceedings, Mr Tam refers me to the decision of G Lam J in Jeanny Helena Franslay v Fung Ariel Mei Shan [2021] HKCFI 258 at para 37:

“(3)  No adverse inference against the defendant may be drawn from his failure to call one or more witnesses or adduce certain evidence: China Metal Recycling (Holdings)  Ltd v Chun Hei Han [2018] 1 HKLRD 455, §§36-37; Kissel v HKSAR (2010)  13 HKCFAR 27, §82.

(4)  If by cross-examination to credit a plaintiff proves that the defendant’s evidence cannot be relied on, and he has testified that he did not do a certain act, the plaintiff does not thereby prove that he did it: Hobbs v Tinling (C T)  and Co Ltd [1929] 2 KB 1, 21. The plaintiff has to prove his case affirmatively, though this may be done by inference.

(5)  For an inference of fact properly to be made: (a)  it must be grounded on clear findings of primary fact; (b)  the inference must be a logical consequence of those facts; (c)  beyond being logical, the inference must be “irresistible”, that is, it must be the only inference that can reasonably be drawn on the basis of those facts: Winnie Lo v HKSAR (2012)  15 HKCFAR 16, §115. The third requirement has also been expressed in other ways, such as that “the inference must be compelling – one (and the only one)  that no reasonable man could fail to draw from the direct facts proved”: Kwan Ping-bong v R [1979] HKLR 1 at 5, or that the facts must be such as to exclude reasonable hypotheses consistent with innocence: Nina Kung v Wang Din Shin (2005)  8 HKCFAR 387, §185.

(6)  In other words, if the court concludes from the evidence that there is more than one reasonable inference to be drawn and at least one of them is inconsistent with a finding of contempt, the plaintiff fails: Daltel Europe Ltd v Makki [2005] EWHC 749 (Ch), §30.

(7)  The standard of proof beyond reasonable doubt does not mean that every piece of evidence that does not by itself establish a fact beyond reasonable doubt should be disregarded. It is sufficient if the body of evidence relied on, viewed as a whole, satisfies the burden: Myers v R [2015] UKPC 40, §46; HKSAR v Lo Hung Kwong [2000] 3 HKC 474, 480.

(8)  In appropriate cases, proof of a fact by inference to the requisite standard may be achieved by taking various pieces of circumstantial evidence together, like cords comprised in a rope, or strands in a cable, or converging rays of light producing a body of illumination, such that “there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion, but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of”.”

130.  On the other hand, Ms Eu stresses that contempt proceedings should only be pursued as a last resort.  It would be wrong to bring contempt proceedings without regard to the efforts and continued efforts by the alleged contemnor in complying with the order even though he has failed to completely fulfil the requirement within the time prescribed, citing China Metal Recycling (Holdings)  Ltd v Chun Hei Man [2018] 1 HKLRD 455 at para 78. Where an alleged contemnor has been making genuine and serious efforts in complying with the order and non-compliance by a certain deadline is due to circumstances beyond his control, it would be rare that the court will deem it appropriate to consider the option of committal: China Metal at para 60.

131.  As regards the principle set out in para 128(4)  above, Ms Eu emphasises that the principle should not be interpreted so as to shift the burden of proof to A to show that it was impossible for him to carry out the terms of the return order.  Such burden all along remains on K.  

132.  I agree with that submission. On this point, see para 13(4)  in High Fashion; China Metal at paras 66 to 68, citing the following passage from Re L-W (Enforcement and Committal: Contact) [2011] 1 FLR 1095 at para 34:

“(2)  The next task for the judge is to determine whether the defendant has done what he was required to do and, if he has not, whether it was within his power to do it. To adopt Hughes LJ’s language, Could he do it? Was he able to do it? These are questions of fact.

(3)  The burden of proof lies throughout on the applicant: it is for the applicant to establish that it was within the power of the defendant to do what the order required, not for the defendant to establish that it was not within his power to do it.” (original emphasis)

133.  In the present case, the burden is on K to show beyond reasonable doubt that it was possible for A to perform what was required of him under the return order.

DISCUSSION

134.  I shall approach each count of contempt by going through the well-known three-stage process in respect of each of them.

135.  I should record here that Ms Eu makes a number of criticisms of K’s evidence. In my view, for the purpose of this committal application, it is unnecessary to come to any definitive view on her credibility as a witness. This is because whether A is guilty of contempt or not turns primarily on the court’s evaluation of the objective evidence and his evidence.

COUNT 1

136.  Count 1 concerns the disclosure order.

The first stage

137.  Under the first stage of the analysis, I should construe the disclosure order to ascertain its meaning.  There is not much dispute between the parties over the construction of the order, save perhaps for the interpretation of the word “forthwith”.  It is, however, unnecessary for me to resolve the issue for reasons which will become clear shortly.

The second stage

138.  The disclosure order is a mandatory order.  A contends that he complied with it by the service of the Li affidavit on OLN on 25 June 2021.

139.  In my view, whether that amounted to the disclosure required under the order is an objective question.  The answer does not turn on the subjective intention of the parties.  Instead, it turns on how a reasonable person would interpret the Li affidavit and whether he would consider that the affidavit had the effect of disclosing HVD’s exact whereabouts, taking into account the background context and the purpose of the disclosure order.

140.  I find that the Li affidavit did not have that effect. My reasons are as follows.

141.  The purpose of the affidavit was expressly stated in para 3 of the document.  It was made to support A’s stay summons.  See the extract reproduced in para 61 above.  

142.  The lasting power of attorney and the statutory declaration were referred to in para 5 of the affidavit, which read:

“[A] has instructed my firm to issue the Discharge Summons which is to be supported by detailed affidavit evidence from him which would include references to:”

143.  That was followed by references to the lasting power of attorney and the statutory declaration.

144.  Li then said in para 7 that in view of the two documents, there should be good prima facie grounds for the intended discharge summons.

145.  There was no elaboration on the two documents in the affidavit.  However, taking into account their contents, on an objective reading, the purpose of referring to and exhibiting the two documents was plainly to show that HVD was of sound mind and she was happy staying in Singapore.  And that was relied on as a ground for staying and (eventually)  discharging the June order.

146.  The purpose of the affidavit was not to comply with the disclosure order.  That is plain from a reading of the entire contents of the affidavit.

147.  The next question is – nevertheless, did the affidavit have the effect of disclosing the exact whereabouts of HVD?

148.  The lasting power of attorney disclosed HVD’s “Local Mailing Address” and the statutory declaration disclosed the address where HVD was “currently residing”.  And that was the XX Road address.  The issue here is whether an objective reader would equate that address with HVD’s “exact whereabouts”.

149.  In this regard, it is important to go back to the purpose of the June order.  The purpose was explicitly spelt out in the recital. The ex parte judge made the order because he had reason to believe that HVD might be “mentally incapacitated, subject to undue influence or other disabling circumstances”, she might have been “removed from Hong Kong in circumstances where she lacked or would lack capacity to consent”, she might have been “wrongfully confined or restricted by third parties contrary to her true wishes and best interest”, and she might be “incapable therefore of expressing her true wishes”. The court was therefore “anxious to protect and secure the well-being and best interest of HVD, to ascertain whether she is capable of [deciding] her country and place of residence, and to ensure that she may freely express her wishes concerning her country and place of residence if she is so capable”.

150.  In short, the evidence before the ex parte judge was that HVD might not have the requisite mental capacity to decide where she wanted to be and she might have been abducted from Hong Kong to Singapore.  In the submissions made to him, there was a further suggestion that A might be taking her to travel to Dubai or Spain.

151.  When making the order, the court was exercising its protective jurisdiction to protect the interests of HVD. For authority in support of this jurisdiction, both Mr Tam and Ms Eu refer me to the decision in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam)  at paras 79 to 80.

152.  The rationale for the disclosure order is therefore plain and obvious.  The first thing which K must know in order to protect HVD’s interests must be her “exact whereabouts”.  Those were the exact words used by the court in the order.

153.  To me, the most striking feature of the Li affidavit is that in the body of the affidavit, Li did not say anything at all about the address stated in the two exhibited documents.

154.  That address might be where HVD was located physically as of the date of the Li affidavit.  But it might not be. The description “Local Mailing Address” could mean that it was just a correspondence address. Even for a residential address, one may generally live there but can travel elsewhere at times. One should not be left to make the assumption that the address shown in the two documents must be where HVD was located physically.  There was an added uncertainty here because there had been a suggestion at the ex parte hearing that A might be taking HVD to travel to Spain or Dubai.  If we cast our minds back to June 2021, it was precisely because at that time it was not known where HVD might physically be that the disclosure order was made.  It is notable that the order did not ask for HVD’s address. It specifically asked for HVD’s “exact whereabouts”.

155.  In the absence of any clarification in the body of the Li affidavit, a reasonable reader would not be able to tell definitively that the XX Road address was HVD’s “exact whereabouts”.

156.  There is also the additional point that the two documents were made by HVD herself.  At that time, there was evidence before the court casting doubt over her mental capacity and her ability to express her wishes.  It follows that one might not safely accept what she herself said at face value.  How can a reasonable reader place weight on those documents, in the absence of any clarification from Li (or someone else)?

157.  In her submissions, Ms Eu emphasises that the disclosure order did not specify any particular mode of disclosure.  I agree with that observation.  When one considers whether there was compliance, one looks at the matter in substance.  As I see it, however, the problem with the Li affidavit is not that it was an affidavit made by the solicitor, not by A himself.  The fundamental problem is that one cannot objectively tell from the affidavit that the XX Road address was indeed the exact whereabouts of HVD at the time when that affidavit was made.

158.  OLN wrote to Bowers on 30 June 2021 complaining that A was in breach of the disclosure order.  I consider that the complaint was legitimately made.  It was only in the 2 July letter that Bowers made it clear that the XX Road address was indeed the “exact whereabouts” of HVD.

159.  I accept A’s allegation that the June order only came to his attention on 19 June 2021.  The 2 July letter was sent 13 days after that and after OLN complained about the non-compliance.  By any standard, that cannot fulfil the “forthwith” requirement in the disclosure order.  In any event, that is not how Ms Eu has argued A’s case.

160.  For the above reasons, I find that A failed to comply with the disclosure order.

The third stage

161.  In the third stage of the analysis, it is for K to show that A did not intend to do what was required of him under the disclosure order.  That goes to the subjective intention of A.

162.  In the present case, there can be no dispute that A knew of the terms of the June order on 19 June 2021.  He has admitted that to be the case in his own evidence filed in 2021 (see para 84 above).

163.  He now contends that he had in fact authorised Bowers to disclose the two documents to K and P “so that they would know the whereabouts of HVD”. If that statement is true, I would accept that A did not have the mental state to be held liable for contempt.

164.  There is no doubt that A had authorised Bowers to use the two documents in support of his stay application.  The critical question here is whether he had also authorised Bowers to use them in order to comply with the disclosure order or to disclose the exact whereabouts of HVD.[2] Insofar as A is now saying that he had in fact so authorised, I reject that allegation as incredible.

165.  If A had authorised Bowers to use these documents to comply with the disclosure order, one would reasonably expect that Li would state that purpose upfront in the affidavit.  That is how solicitors prepare affidavits generally.  I find it inconceivable that if Li was in fact making his affidavit not only to support the stay application but also to comply with the disclosure order, he would have omitted to state the latter purpose in the usual manner.

166.  Not only did Li not state that purpose, he also did not say anything about the address in the body of the affidavit.  I have already made the comment above that I have found this striking.  The very fact that Li did not “speak to” the address plainly and amply shows that the affidavit was not used to comply with the disclosure order or to disclose the exact whereabouts of HVD.

167.  Bowers wrote the 2 July letter in response to OLN’s letter dated 30 June 2021 complaining about the breach of the disclosure order.  It was stated that A “specifically authorised [Bowers] to disclose these two documents recording HVD’s exact whereabouts in Singapore to you on 25 June 2021 as he has absolutely nothing to hide”.  I do not think that this statement adds much to A’s case or bolsters its credibility in any way.  As I have pointed out above, there is no dispute that Bowers had indeed been authorised to use the two documents. This statement, as crafted, is equivocal in that it does not have the effect of affirming that they had been authorised to use them for the purpose of complying with the disclosure order or disclosing the whereabouts.

168.  The objective facts which are material to Count 1 are that, first, the Li affidavit did not state that the purpose of that affidavit was to comply with the disclosure order or to disclose the whereabouts, and, second, in the body of the affidavit, Li did not say anything about the address.  I consider that the only logical conclusion to be drawn from these primary facts is that Li was not making use of the affidavit to comply with the disclosure order or to disclose the whereabouts, and that was because A had not authorised Bowers to use the documents for that purpose.

169.  The fact that A fails to prove his allegation does not by itself mean that K succeeds in proving the requisite mental state under the third stage.  The burden still remains with K to prove her case affirmatively. See the principle set out in Jeanny Helena Franslay, citing Hobbs v Tinling (CT)  and Co Ltd [1929] 2 KB 1, 21 (reproduced in para 129 above). 

170.  Here, the primary facts are these. A knew of the terms of the disclosure order on 19 June 2021. After he learnt of the June order, he took immediate steps to deal with the situation by accompanying HVD to make the statutory declaration on 22 June, and promptly using that document (together with the lasting power of attorney)  to support the stay summons which he took out on 24 June. He was actively and consciously taking steps to respond to the June order. Yet, in the process, as found above, he did nothing to comply with the disclosure order of which he was aware.  

171.  In the circumstances, I am satisfied that the irresistible inference to be drawn is that the non-compliance was not accidental, he did not intend to do what was required of him under that order, and that he had no intention of obeying it. The requisite mental element is therefore proved.

Conclusion on Count 1

172.  I find that Count 1 has been proved beyond reasonable doubt.

COUNT 2

173.  Count 2 concerns the return order.

The first stage

174.  On the construction of the order, I accept Ms Eu’s submission as set out in para 107 above.  The order did not require A to achieve the outcome that HVD be returned to Hong Kong.  It only required him to take the necessary steps in order to achieve that outcome.  The rationale is plain.  It was recognised that the personal liberty and personal wish of HVD was involved and she could not be compelled to return if she did not agree to do so.

175.  As for the purpose of the return order, I repeat what I have said in para 149 above.  The order was made so that the court would be able to have her examined such that it could be ascertained whether or not she could decide for herself where to stay and live and whether she had been able to do so.

176.  In the present case, a short timeframe of 14 days was imposed because there was evidence before the ex parte judge that she might have been removed from Hong Kong contrary to her wishes.

The second stage

177.  The focus of the second stage is therefore whether A took the necessary steps within the stipulated period.  The burden is on K to prove that he did not.

178.  Evidence was led in the trial with regard to developments after 2 July 2021.  In essence, K’s position is that A continued to be in breach of the order after that date whereas A’s case is that apart from HVD’s own refusal to go to Hong Kong, during that subsequent period, he was also prevented from bringing her back because of her worsening hernia condition which made her unfit to travel.

179.  In my view, as a matter of analysis, there is only one breach under Count 2, and that is the failure of A to take the necessary steps by 2 July 2021.  If that case is established, that would be the basis on which the court will find him to be in contempt.  Any continuing failure of A to take the necessary steps after that date would not form a basis or further basis for the court to find contempt in this committal application. If established, its only significance would simply be that the original breach remained in place after the deadline and was not purged.

180.  For authority in support of this analysis, see The Solicitor General v JMJ (Contempt) [2013] EWHC 2579 (Fam)  at paras 21 and 23, per Sir J Munby P:

“[21] A mandatory order is not enforceable by committal unless it specifies the time for compliance: Temporal v Temporal. If it is desired to make such an order enforceable in respect of some omission after the specified time, the order must go on to specify another, later, time by which compliance is required. …

…

[23]  I do not want to be misunderstood. If someone has been found to be in breach of a mandatory order by failing to do the prescribed act by the specified time, then it is perfectly appropriate to talk of the contemnor as remaining in breach thereafter until such time as the breach has been remedied. But that pre-supposes that there has in fact been a breach and is relevant only to the question of whether, while he remains in breach, the contemnor should be allowed to purge his contempt. It does not justify the making of a (further)  committal order on the basis of a further breach, because there has in such a case in no further breach. When a mandatory order is not complied with there is but a single breach … If in such circumstances it is desired to make a further committal order – for example if the sentence for the original breach has expired without compliance on the part of the contemnor – then it is necessary first to make another order specifying another date for compliance, followed, in the event of non-compliance, by an application for committal for breach not of the original but of the further order…”

181.  Accordingly, I shall focus on the period from 18 June to 2 July 2021.

From 18 June to 2 July 2021

182.  By his evidence filed in 2024, A puts forward a positive case that shortly after learning of the June order, he asked HVD if she would return to Hong Kong but HVD refused.  The first attempt took place on 26 June 2021.  Subsequent to that, A tried many times but each time HVD refused.

183.  It is convenient for me to deal with A’s positive case first.  I should also point out immediately that if what he now says is true, I would consider that he had taken the necessary steps as required under the order. If HVD had in fact been asked and had refused, then I think it is fair to conclude there was not much more which A could have done.

184.  In assessing the credibility of A’s evidence, it is useful to look at his evidence filed in 2024 alongside with that filed in 2021.

185.  The theme running through his 2024 evidence is that he tried many times to ask HVD to return to Hong Kong but each time HVD refused, citing the quarantine policy as the reason.

186.  In my view, HVD’s reaction, as alleged, is inherently plausible. In June 2021, a 14-day compulsory quarantine requirement was in place.  HVD was then about 80 years old.  The allegation that she refused to come back to Hong Kong because she did not want to go through the quarantine is reasonably credible.

187.  Furthermore, the alleged reaction of HVD is also consistent with Dr Wong’s opinion that she has all along retained her ability to decide and express her wishes as to where she wants to live and travel to. 

188.  Having said that, however, what is most notable about A’s 2024 evidence is that it was not mentioned at all in his 2021 evidence.

189.  In his evidence filed in 2021, it was never mentioned that after learning of the June order, he repeatedly asked HVD if she would like to return to Hong Kong and each time HVD refused.  The theme of his 2021 evidence is instead that HVD was of sound mind, she could very well decide for herself where she wanted to be, and as a matter of fact, she was very happy staying in Singapore and being with A’s family, and A was in no position to force her to return against her wishes.  Later on, HVD was prevented by her worsening hernia condition to travel to Hong Kong.  I should however point out that in the evidence in 2021, the Hong Kong quarantine requirement was at times mentioned as a consideration for not returning to Hong Kong but only in a general way.

190.  The above theme can be gathered from the 2 July letter,

A’s 1^st affirmation, his 2^nd affirmation and the HVD’s affirmation[3].

191.  The relevant part of the 2 July letter is reproduced in para 66 above.  What is material here is that Bowers expressly stated that A was “in no position” to return HVD to Hong Kong by 2 July 2021.  It was followed by this statement:

“HVD will return to Hong Kong when she wants to return to Hong Kong.”

192.  The letter continued to say that A “will ask” HVD to return to Hong Kong to attend the hearing of the originating summons.

193.  The same theme appears in A’s 1^st affirmation.  He said:

“… it is my understanding and I believe that notwithstanding my Mother being of old age, the current informal arrangement of family care supported by [A’s wife] and I is in the best interests and welfare of my Mother as it respects and takes into account and consideration her freedom of choice and autonomy. Further, and on the subject of what ought to be in my Mother’s best interests, no reasonable and fair-minded person would consider taking my Mother away from her holiday and subjecting her to the risk and perils of quarantine and separation from care in-the-midst-of the covid-19 pandemic – something which is obviously not in her best interests or overall well-being.” (underline added)

194.  The theme which appears in A’s 2^nd affirmation and the HVD affirmation is that HVD decided not to travel to Hong Kong because of the deterioration of her hernia condition.

195.  In his 2^nd affirmation, A referred to what Mr Bowers said at the 21 July hearing about he and HVD intending to return to Hong Kong to attend the October hearing, with COVID restrictions and quarantine permitting.  He then explained why HVD would no longer attend the hearing contrary to that earlier indication:

“25. Due to a deterioration in my Mother’s ongoing hernia condition in recent months since then …, my Mother has decided against travelling to Hong Kong for the scheduled hearing on the advice of her treating doctor in Singapore and in the interest of her overall health and well-being. …

…

27. In short, the evidence shows that I am not in a position to control my Mother’s movements.” (underline added)

196.  In the HVD affirmation, she explained why she would not be attending the October hearing in person:

“3.8 I confirm that I am very happy and content to be in Singapore, especially in the company of my grandchildren and my daughter-in-law, [A’s wife]. A, [A’s wife] and their family continue to take very good care of me in Singapore.

3.9 … In earlier discussions between A and myself shortly before the last hearing in these proceedings on 21 July 2021, I told A that I would be prepared travel to Hong Kong to attend the 13 October Hearing.

3.10 Unfortunately, my hernia condition has since then become more severe and I do not now feel that I am fit enough to make the trip from Singapore to Hong Kong to attend 13 October hearing, especially if I have to undergo a period of mandatory hotel quarantine upon arrival in Hong Kong from Singapore. My treating doctor in Singapore [ie Dr Ngoi] has recommended against any travel plans for me in the new future and I confirm that I am following my treating doctor’s medical advice, so will not be travelling from Singapore to Hong Kong to attend the 13 October Hearing. I confirm that I have made this decision of my own free will without any coercion by anyone else.

3.11 I strongly believe that given my hernia condition (and given the level of close care and company I require at my age), it is not suitable (or even sensible)  for me to travel in the new future and I am afraid that my health would suffer badly if I were to be put through the stringent quarantine and testing arrangements in place for me to return from Singapore to Hong Kong. My strong preference is to stay in Singapore and to visit Hong Kong again when I feel medically able and inclined to do so. I would like to express my sincere apologies if my absence causes any inconvenience to the Court in Hong Kong. ” (underline added)

197.  I should say at this juncture that I do not consider that there is any inherent contradiction between the 2021 evidence and the 2024 evidence in that the stringent quarantine requirement in Hong Kong was a consideration which weighed on the mind of HVD in both sets of evidence.  In fact, as pointed out by Ms Eu, it is K’s own evidence that on one occasion, HVD mentioned that the quarantine period was dissuading her from returning, and on another occasion, HVD expressed her concerns about the quarantine requirement.

198.  In my judgment, however, what is striking when one looks at A’s 2014 evidence alongside with his 2021 evidence is that the conversations which he allegedly had with HVD about returning to Hong Kong (and also his conversations with AMN)  were not mentioned at all in the 2021 evidence.  He now says that the first such conversation took place on 26 June 2021 and there were so many subsequent conversations that he cannot now recall when they took place.  It is baffling why he would omit to refer to these conversations when he made his affirmations in September and October 2021, which is the time when these conversations were supposedly taking place.

199.  At that time, there was plainly an expectation that HVD would return to Hong Kong because of the return order. Furthermore, Mr Bowers informed the court of the intention of both A and HVD to attend the October hearing at the 21 July hearing.  If A had indeed asked HVD to return and HVD had refused, I find it unbelievable that A would have omitted to mention that in his affirmations made in 2021 when he was trying to explain why HVD would not attend the October hearing.

200.  Separately, in the present committal application, the first round of evidence was filed in early 2022.  There was again no mention of the alleged conversations between A and HVD at all.  HVD’s refusal would arguably provide A with a defence to the committal application. Once again, I find it hard to believe that A would omit to mention it if that had indeed taken place.  A did not mention it until almost two years later and only did so a few months before the commencement of the present trial.

201.  When giving his oral evidence, A’s case about these conversations and HVD’s refusal became much richer in detail than his written evidence.  He added the following in cross-examination:

(1)  When asked whether he explained the consequence of not returning to Hong Kong to HVD, A’s answer was that he explained to HVD that there was a court order against him and that he would go to jail if he did not comply.

(2)  A said that he told HVD “almost every day or every second day” to go back to Hong Kong.  But HVD would reply that she would go back when there was no more quarantine.

(3)  He was asked to confirm whether HVD was more concerned with the quarantine, even though she was aware of the risk of A being jailed, A answered that HVD was laughing as she did not believe that the sister (K)  could do something like that to the brother (A).

(4)  He said that he tried to convince HVD to return for “more than one hundred times”. He “on and off” explained to her that non-compliance with the court order was a “jailable offence”. Further, he said to HVD that her crazy daughter wanted to put him in jail but HVD would just laugh.

(5)  When it was put to him that he did not take all the necessary steps to return HVD, he disagreed and said:

“I begged her. I touched her feet. I screamed at her. I fought with her. My mother was ready to even slap me at one stage. I couldn’t strangle my mother to take her back to Hong Kong. I couldn’t do anything like that but I did my very best. I try to follow the order up to my level best to bring her. I really cannot hurt an 80-year-old woman. It is just not possible.”

202.  For my part, I have been handling the mental health proceedings since July 2021 and the committal application since its commencement in December of the same year.  The latest allegations made by A about his “many” conversations with HVD and HVD’s persistent refusal to return only came out for the first time in 2024, just a few months before the trial.  The obvious question is why it was not mentioned in the 2021 evidence (or the 2022 evidence filed in the contempt proceedings).

203.  At the end of his cross-examination, I posed this question to A.  His answer was that he had in fact told Bowers about HVD’s refusal to return to Hong Kong “quite a few times” and that while he signed his affirmations, they were very long and the language used was not something for a layman like him to understand, and that he trusted his lawyers.  He was asked to confirm whether he had told Bowers that HVD refused to go back to Hong Kong because of the quarantine requirement.  He confirmed that to be the case and said that he spoke to the two handling solicitors at Bowers on three occasions about it.  He was then asked whether there was any reason why this evidence was not included in his affirmations if Bowers knew about it.  He could not come up with any explanation.  He then said (twice)  that one of the handling solicitors had a case going on and the solicitor’s daughter was abducted and the solicitor went to the US.

204.  Ms Eu argues that A’s allegation about the conversations with HVD and HVD’s refusal is corroborated by the evidence of AMN and P.  But it is notable that neither witness was able to say when those conversations took place.  They certainly did not say that the conversations took place before 2 July 2021, ie the deadline under the return order.

205.  In my judgment, if A had asked HVD to return to Hong Kong and HVD had refused each time, he would have told his solicitors about it as this fact was highly material and directly relevant to whether he was in breach of the return order.  In his oral testimony, when asked about it, he had no hesitation in confirming to the court that he had indeed told Bowers about it.  His evidence on this was firm.  

206.  However, I find what he said in this regard to be untruthful.  It is unbelievable that if he had told his solicitors about these conversations, the solicitors would have failed to mention them when preparing his affirmations.  A’s allegation about the abduction of the handling solicitor’s daughter came out of nowhere.  Insofar as he was implying that the handling solicitor had to deal with the abduction and therefore failed to mention the alleged conversations in his affirmations, that evidence simply has to be rejected.

207.  For the above reasons, I reject A’s case as revealed in his 2024 evidence, as supplemented by his oral testimony, as incredible. 

208.  That said, his failure to prove that he had asked HVD to return to Hong Kong does not mean that K succeeds in showing that he did not take the necessary steps.  Applying the principle set out in Jeanny Helena Franslay, K still needs to prove the breach affirmatively.

209.  The primary facts stated in para 170 above are equally material here. In addition, in the 2 July letter, Bowers expressly stated that A was “in no position” to return HVD to Hong Kong by the deadline, HVD would return to Hong Kong “when she wants”, and A “will ask” her to return to attend the court hearing upon the fixing of the date. The position taken by A in the mental health proceedings up to 2 July 2021 is therefore unmistakably clear, which is that HVD could decide for herself whether she wanted to return or not and that decision was hers to make, not A’s, and hence A was in no position to return her by 2 July 2021. 

210.  In the circumstances, the only reasonable inference to be drawn is that up to 2 July 2021, A did not ask HVD to return to Hong Kong, nor did he take any other step in an attempt to do so.

211.  I therefore find that A was in breach of the return order.

After 2 July 2021

212.  As explained above, the events which took place after the deadline of 2 July 2021 are not relevant to the issue of whether there was a breach of the return order.  I have now found that there was indeed a breach.  The potentially relevant question arising from the post-2 July 2021 events is whether the breach was subsequently purged. 

213.  The answer is no.

214.  First, I have rejected A’s case that he had asked HVD many times to return but HVD had turned him down each time.  As such, there is simply no basis to say that the original breach of the return order was later purged.

215.  Second, A’s case in relation to this period is in gist that he was prevented by HVD’s health condition from returning her to Hong Kong.  From July to October 2021, it was her worsening hernia condition. In December 2021 (after the temporary stay in November), it was her heart issue.  After the examination was conducted by Dr Wong in January 2022, A says that there was no longer a need to bring HVD back to Hong Kong as the underlying purpose of the return order was substantially achieved. In my view, as a matter of analysis, even if what A has said about HVD’s medical condition is true, that would not remedy the breach which had already taken place on 2 July 2021.  

216.  It follows that it is unnecessary to make any finding on what actually happened after 2 July 2021. However, I would proceed to state my findings and brief reasons in case I am wrong in this analysis.

217.  The dispute here is whether from July to October 2021, the hernia condition of HVD was genuinely preventing her from making the trip to Hong Kong and, more precisely, whether it had worsened to such an extent as to make her unfit to travel.  Or is it the case, as contended by K, that A was using her condition as an excuse and to achieve that, he had been shopping round for a doctor who would be prepared to advise HVD against travelling?

218.  One objective fact in support of K’s contention is the number of doctors which HVD had seen in the space of about three and a half months from July to the hearing in mid-October.  There were four of them (not counting the doctor who did the ultrasound scan)  – Dr Lee, Dr Packer, Dr Koh and Dr Ngoi.  Among them, only Dr Ngoi advised HVD against travelling. Even then, in his certificate, he said that HVD would need repair of the umbilical hernia “when she is ready”.  There was no apparent urgency for the repair surgery. There was also no apparent reason why her hernia condition would be affected by travelling.

219.  On the other hand, A’s explanation for seeing these many doctors, including the need to seek a second opinion in view of HVD’s advanced age, seems to me to be inherently plausible.  In the end, HVD did undergo the hernia surgery in November 2021.

220.  However, what is most telling, in my view, is the fact that A made the October 2021 offer.  That offer directly flies in the face of Dr Ngoi’s advice which was given less than two months before.  By making that offer, A must have taken the view that HVD was in a position to travel.  This shows that he did not himself pay any serious regard to Dr Ngoi’s advice and that he would simply ignore it when it suited his purpose. 

221.  I therefore reject A’s contention that HVD’s hernia condition had prevented her from travelling to Hong Kong during the period from July to October 2021.  The fact that the October 2021 offer was made shows that there was no medical reason which prevented her from travelling during that period.  

The third stage

222.  As for the period up to 2 July 2021, based on the same primary facts set out in para 170 above, I draw the same inference, which is the only logical and reasonable one in the circumstances, that the non-compliance of the return order was not accidental, A did not intend to do what was required of him under that order, and that he had no intention of obeying it. The requisite mental element is therefore proved.

Conclusion on Count 2

223.  I find that Count 2 has been proved beyond reasonable doubt.

224.  I bear in mind that contempt proceedings are generally to be brought as a last resort. In the present case, however, we must remind ourselves the reason why the court made the disclosure order and the return order in the first place and imposed a short timeframe for compliance. They were the means to ensure that the court could as soon as possible ascertain HVD’s mental capacity and her true wishes as to where she wanted to stay. As found, A was knowingly in breach of both orders. As a result of that, the court was not able to make speedy progress in the mental health proceedings. I consider that it is justified to hold him liable for contempt.

COUNT 3

225.  Count 3 can be disposed of very quickly.

226.  It is, in my view, plain and obvious that the oral submissions made by Mr Bowers at the 21 July hearing, as quoted in para 76 above, did not amount to a formal undertaking which is enforceable by way of committal.

227.  I agree with Ms Eu’s submission that it was only an expression of A’s intention.  This is clear from the actual words used.  Mr Bowers was informing the court of his client’s instructions in relation to the conduct of the hearing scheduled for October 2021.  The language which he used cannot reasonably be construed as giving a formal undertaking.

228.  For my part, at the hearing, I did not take what Mr Bowers said as a formal undertaking. In the sealed order, there was no record of any undertaking given by A.  I should point out that the sealed order was drawn up by OLN, K’s solicitors.  If Mr Bowers had in fact given a formal undertaking on behalf of A, OLN ought to have recorded that in the recital of the sealed order.  They did not. 

229.  The position is simply this.  Objectively speaking, what Mr Bowers said cannot be construed as a formal undertaking.  As a matter of fact, neither the court nor K’s solicitors treated those words as an undertaking.

230.  Count 3 therefore fails as the alleged undertaking did not exist in the first place.

ORDERS

231.  For the above reasons, I find that A is guilty of contempt of court under Count 1 and Count 2. Count 3 is not made out.

232.  Cost should follow the event. However, a discount should be applied to reflect the fact that K fails on Count 3 and abandoned Count 4 only at the trial. I therefore make a costs order nisi that K do have 75% of the costs of the originating summons, including the leave application and all reserved costs, on an indemnity basis, to be taxed if not agreed.  I grant a certificate for two counsel.

233.  The matter is now adjourned for sentencing. 

234.  I make the following directions:

(1)  The originating summons be adjourned to a date to be fixed in consultation with counsel’s diaries (one counsel only for each party)  no later than four months from the date of this judgment, with one hour reserved, for the purpose of mitigation and sentencing. 

(2)  The sentencing hearing be held in open court (see Order 52, rule 6(2)).

(3)  A must attend the hearing, failing which a warrant may be issued for his arrest.

(4)  A be at liberty to file and serve affirmation evidence on matters relevant to mitigation and sentencing at least 28 days before the adjourned hearing.

(5)  No further affirmations be filed without the leave of the court.

(6)  A be at liberty to lodge and serve skeleton submissions at least 14 days before the adjourned hearing.

(7)  K be at liberty to reply by skeleton submissions at least 7 days before the adjourned hearing.