LCH v. WPSN

FAMV No. 133 of 2025

[2026] HKCFA 5

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 133 OF 2025 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 327 OF 2024)

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REASONS FOR DETERMINATION

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The Appeal Committee:

1.  At the hearing we dismissed this leave application for reasons which we now provide.

A.   The course of the proceedings

2.  On 30 November 2020, in divorce proceedings initiated by the applicant husband as petitioner, a Consent Order concerning financial arrangements for the two young children of the family (A and B) was made by HH Judge G Own.[1] In Recital C, the applicant gave an undertaking to the Court to “pay or cause to be paid for the Children regardless of which school they attend (and it is envisaged both Children will attend Clearwater Bay ESF School in the fullness of time)” school fees and other educational expenses listed.  It was also ordered by consent that the applicant would pay “a sum of $15,000 per month per child from 1 December 2020 ... until they are respectively 18 years old or [cease] full-time tertiary education (first degree), whichever is the later.”

3.  The younger Child B was then already a pupil in that school.  When Child A was enrolled on 26 September 2022, the applicant refused to pay any further school fees or other school expenses. 

4.  On 6 December 2022, the Judge made an order requiring the applicant’s compliance with Recital C (“the Compliance Order”).  It was personally served on the applicant, endorsed with a penal notice.  On 31 January 2023, the applicant’s solicitors wrote saying that without his mother's support, he could not afford to pay for the school fees, etc, for Child A.

5.  The respondent wife then sought leave to apply for an order of committal under O 52 r 2 for breach of his undertaking.  Arrears for Child A’s enrolment and school fees then stood at $111,757, with monthly school fees of $11,910 continuing to being payable.  In her Affirmation in support, she disputed the applicant’s alleged inability to pay, saying that he was of a “wealthy and affluent background”, that he had three properties in HK, the UK and the PRC, and enjoyed a luxurious lifestyle.

6.  Pursuant to leave granted on 28 July 2023, the respondent issued an inter partes summons for the applicant’s committal for breach of his Recital C undertaking and the Compliance Order.

7.  The applicant responded by taking out an inter partes summons seeking to be discharged from his undertaking and for maintenance payments for the children to be reduced.  In his affirmation in support, he explained that his mother had decided to stop funding payment of the fees and that he lacked the means to comply with his Recital C undertaking. 

8.  The Judge set down the committal hearing for 5 December 2023 and ordered the parties to file affirmations and to attend.  The applicant did not file any evidence.  His application for variation was due for a call over some five months later.

9.  At the committal hearing, the Judge explained to the applicant his rights but he chose not to testify or raise any defence.  He only submitted a two-page “Opening Submissions” document and briefly questioned the respondent’s testimony during the trial.

10.  His Honour noted that the applicant in contempt proceedings bore the burden of proving contempt beyond reasonable doubt and that liability for civil contempt does not require proof that the offender intended to violate the court’s orders or that his conduct was contumacious; but that casual, unintentional or accidental behaviour does not constitute contempt. 

11.  The Judge found that at the date of the respondent’s application for committal, $111,757 was owed: “Moreover, for the additional 9 months from March 2023 up until the present trial date (i.e. 5 December 2023), H has still not made good on his undertaking to pay the elder daughter's tuition fees. There is also no indication that he will do so after the hearing.”[2]

12.  It was held that the respondent had “succeeded in proving that no reasonable doubt existed, and that H had intentionally refused to pay the tuition fees and related expenses of the elder daughter, disregarding his own undertaking made to the court and W, as set out in Recital C”, so that the applicant was in contempt of court.[3]

13.  On 22 December 2023, the Judge committed the applicant to imprisonment for 8 weeks but suspended execution on condition that he pay off all outstanding amounts within seven days, ie, by 29 December 2023, as further considered in Section F below.[4]

14.  In the applicant’s Affirmation filed in support of his variation application, he stated that he had had “to resort to borrow funds from someone else to purge the contempt as [his mother] was not agreeable to helping”. 

15.  In the Court of Appeal,[5] the applicant advanced two grounds of appeal of present relevance, namely, that the Judge had erred in law:

(a)   in failing to hear the application for variation before dealing with the committal; and

(b)     in holding that a breach of undertakings which concern payment of money should be enforced by committal proceedings and not a judgment summons.

16.  In rejecting the second ground, the Court of Appeal held that the respondent had a choice of proceeding either by way of judgment summons or committal proceedings.[6]

17.  The Court of Appeal also rejected the first ground, holding that his mother’s refusal to continue to fund the payments did not establish his inability to comply with his undertaking, adding “for example, there is no evidence that he could not borrow money to fulfil his obligation”.  It was held that hearing the variation application would have made no difference.[7] The Court of Appeal accordingly dismissed the appeal.  It also refused leave to appeal to this Court.[8]

B.   The present application for leave to appeal

18.  The applicant presently seeks leave to appeal in respect of the following questions of law, namely:

Question 1: Must a Judgment creditor seek enforcement of a debt for maintenance by way of the Judgment Summons route or is it open to him to seek, in the alternative seek [sic] committal for contempt?

Question 2: If a Judgment Creditor is able to proceed directly to a committal summons and the contempt is then shown to have happened, then should

(a)    a variation application be heard before committal and / or

(b)    should the Judgment Debtor be able to show that his conduct was not intentional, for example, by dint of having insufficient funds?

C.   Question 1: Judgment summons necessary?

19.  The applicant’s argument underpinning this Question runs as follows:

(a)   The Court of Appeal was wrong to say that the respondent had a choice between the judgment summons and direct committal procedures. Only the judgment summons route is available for committal for a debt.[9] This is the effect of the applicable Rules[10] and of the Court of Appeal’s decision in YBL v LWC.[11]

(b)   The judgment summons procedure has two stages, first an examination of the judgment debtor’s means and secondly, if appropriate, consideration whether committal should be ordered.  This separation is constitutionally required.  “By going straight to the committal stage, the Husband was deprived of the opportunity of showing that his non-compliance arose from inability not refusal”[12] and thus he was deprived of his right to a fair trial.[13]

20.  That argument is wholly unsustainable.  There is nothing in the rules or authorities cited by the applicant making it mandatory for a judgment creditor enforcing a money judgment to go through the stage of examining the judgment debtor as to the latter’s means.  Indeed, in citing those authorities to the Appeal Committee, matters quite contrary to the applicant’s case were omitted.

21.  Order 45 lists various methods by which a judgment or order for the payment of money “may be enforced”.  One option is to seek “an order of imprisonment made under Order 49B”.  That Rule empowers the Court on an ex parte application by the judgment creditor to order the judgment debtor to be examined on oath and to “make a full disclosure of all his assets, liabilities, income and expenditure and of the disposal of any assets or income and ... [to] answer all questions put to him.”[14] If, after such an examination the Court is satisfied that he is able to satisfy the judgment; or has disposed of assets with a view to avoiding satisfaction of the liability; or has wilfully failed to make a full disclosure or to answer any question (as required under O 48), it may order the judgment debtor to be imprisoned for a period not exceeding 3 months.[15]

22.  The judgment summons procedure under MCR r 87 incorporates the procedure under O 48 r 1(1) requiring a judgment debtor to appear and be examined on oath as to his means, followed by possible committal of the judgment debtor as under O 49B.

23.  Clearly, the rules enabling examination of the judgment debtor cater for cases where the judgment creditor needs to discover what assets and means the judgment debtor has, in aid of executing the judgment.  But, as the respondent pointed out and as recognized by the Court of Appeal in YBL v LWC, such an examination is unnecessary where the judgment creditor has sufficient information to show beyond reasonable doubt that the judgment debtor’s non-compliance is a contempt.  At paragraph 54 of that judgment, the Court of Appeal stated:

“The purpose of an examination process is to facilitate a judgment creditor to obtain further information on the means of the judgment debtor. If a judgment creditor already has sufficient information to establish beyond reasonable doubt that the judgment debtor has the means to pay, he should apply directly for committal of the judgment debtor. Examination is only useful when a judgment creditor does not have sufficient evidence to establish the means ofthe judgment debtor at the time of default.” [16]

24.  As the respondent also pointed out, this is spelt out in Practice Direction PDSL10.2, which was issued in consequence of the decision in YBL v LWC.  It states:

“If a judgment creditor considers that the examination of the judgment debtor can be dispensed with, he may apply ex parte to a judge for leave to apply for an order of committal under the committal process set out hereunder.”[17]

25.  Furthermore, PDSL10.2 notes that “[the] procedures under Order 52 of RHC are applicable to an application for the committal of a judgment debtor.”[18] 

26.  Paragraph 54 of YBL and PDSL10.2 therefore substantially undermine any suggestion that the only acceptable route to a committal is via an examination of the debtor’s means pursuant to a judgment summons.  Disturbingly, neither statement was mentioned by Mr Richard Todd, counsel for the applicant, in his skeleton argument lodged in support of leave to appeal even though he relied heavily on YBL in that document (citing the case at least 17 times in an 11-page submission). 

27.  When asked at the hearing why counsel had not mentioned those matters, especially since the respondent was unrepresented, he submitted that such reference was unnecessary since the Court of Appeal had dealt with them “front and centre” in its judgment.  That is not an acceptable answer.  It was incumbent on counsel fairly to state the nature of the issues sought to be raised before the Court of Final Appeal (whatever the issues might have been on the intermediate appeal), dealing with any authorities which might undermine the essential case he was seeking leave to argue.  In the best traditions of the Bar, it is especially important to adhere to this obligation where the opposite side is unrepresented.

28.  In the present case the respondent did not feel any need to examine the applicant as to his means but was confident that she could prove that his non-compliance was a contempt.  She was entitled directly to seek leave to apply for a committal order under O 52 r 2. 

29.  Mr Todd also sought to support his argument on Question 1 with the submission that committal would somehow inappropriately be easier if proceedings were brought under Order 52 as opposed to a judgment summons. 

30.  That suggestion is unfounded.  The principle that a judgment debtor should not be imprisoned simply because he does not have the ability to pay is applicable whichever procedure is adopted.  It is reflected in Article 7 of the Hong Kong Bill of Rights in respect of inability to fulfil contractual obligations generally.  And in YBL v LWC,[19] the Court of Appeal cited Kao, Lee & Yip v Koo Hoi Yan,[20] a case of civil contempt, for the proposition that there could not be any penal liability for a failure to perform an impossible task.

31.  The facts are also wholly against the applicant.  There is no conceivable basis for his suggestion that avoiding the examination stage somehow deprived him of the opportunity of showing that his non-compliance was from inability and not refusal, and that he was thus deprived of his right to a fair trial.

32.  Ever since the applicant stopped paying the school fees in September 2022, he had received numerous demands for payment and was made subject to the Compliance Order endorsed with a penal notice.  He knew full well that the respondent was seeking his committal and was given every opportunity to file affirmation evidence and to testify if he wished to explain his non-compliance.  He chose not to do so. 

33.  It is therefore a travesty to suggest that simply because there had not been an examination as to his means under a judgment summons procedure, the applicant was somehow deprived of “an opportunity to present his case on why he had not been able to comply with his undertaking”.[21] It was his choice not to avail himself of the same.

34.  That is perhaps unsurprising since the only explanation that he had put forward, namely, that he was unable to pay because of his mother’s refusal to provide funding, was shown to be hollow.  As the Court of Appeal had anticipated, the applicant was in fact able to comply with his undertaking by borrowing money to meet the arrears.

35.  At the hearing, Mr Todd ventured to suggest that the applicant was merely exercising “his right to silence” in failing to provide an explanation for non-compliance with his undertaking.  That is misconceived.  He was not in the situation of a criminal defendant entitled to a presumption of innocence.  As observed by Thrope LJ in Zuk v Zuk,[22] a judgment creditor in a judgment summons (and likewise in proceedings for committal under Order 52):

“…starts from the implicitly strong position that the order itself establishes, either expressly or implicitly, that the payer had the means to pay at the date the order was made… at that stage the evidential burden passes to the debtor, whilst not of course undermining the obligation on the creditor to discharge the burden of proof.”

36.  This applies in the present case.  With legal advice, the applicant gave the Court his undertaking to pay school fees and then intentionally failed to honour it for over a year. He knew that he would be held in contempt unless he either complied or provided an acceptable reason for non-compliance.  If he chose not to respond and the creditor discharged the relevant burden, a finding of contempt and enforcement would follow.  The “right to silence” does not come into the picture.

37.  Question 1 is not reasonably arguable.

D.   Question 2(a): Variation application before committal?

38.  This is but a variant of Question 1.  The applicant’s suggestion is that by proceeding with the committal before hearing his variation application, he was deprived of the ability to explain away his non-compliance.  For the reasons given above, that is unarguable.  He had every opportunity to give evidence in the committal proceedings but chose not to do so. 

39.  Moreover, as the Judge pointed out:

“... on the day he filed the summons to apply to amend the order (i.e. 14 September 2023), H had already been in breach of his undertaking for a continuous period of one year. As of the date of this hearing (i.e. 5 December 2023), a period of 15 months had passed. In addition, his former solicitors did not make any application for an interim stay while handling the summons for amending the 30 November 2020 order ...”[23]

40.  There was no reason to give preference to his dilatory variation application, filed only when imminently faced with the possibility of committal, over the respondent’s application for funds needed for the children’s maintenance.

E.   Question 2(b)

41.  Question 2(b) states:

“If a Judgment Creditor is able to proceed directly to a committal summons and the contempt is then shown to have happened, then ... should the Judgment Debtor be able to show that his conduct was not intentional, for example, by dint of having insufficient funds?”

42.  This Question is hard to understand.  Since it is premised on the contempt having been “shown to have happened”, it must follow that the judgment creditor will have established beyond reasonable doubt the fact of non-compliance and the necessary mental state on the judgment debtor’s part.  We do not see any room left for the judgment debtor then to “show that his conduct was not intentional, for example, by dint of having insufficient funds”.  We were unable to follow Mr Todd’s attempt to explain the point sought to be raised.

F.   An academic appeal

43.  The Judge noted in his sentencing decision dated 22 December 2023 that “when a party has been in contempt but has remedied the breach before the hearing, the court will not or should not make a committal or a suspended committal order”.[24] He also noted the court’s power under O 52 r 7 to suspend execution of the order of committal for such period or on such terms or conditions as it may specify.

44.  He held that committal for 8 weeks’ imprisonment was appropriate but decided to suspend its execution, directing that:

“... should [the applicant] pay off all outstanding amounts as of 29 December 2023, to the solicitor representing [the respondent] within 7 days (ie by 29 December 2023), the sentence of committal for 8 weeks’ imprisonment will be set aside, otherwise, it will be enforced immediately.”[25]

45.  In the applicant’s affirmation dated 21 February 2024 filed in support of his discharge and variation application[26] he stated:

“My mother remains unwilling to continue her generosity and even for the Order for committal made, I had to resort to borrow funds from someone else to purge the contempt as she was not agreeable to helping.”[27]

46.  The Court of Appeal was therefore right not to equate the mother’s refusal with the applicant’s inability to make the ordered payments.  Cheung JA stated:

“Mr Li [then counsel for the applicant] informed the Court that the husband had purged his contempt by complying with the order of the Judge by paying the wife the sums as ordered. The wife is however critical of the husband’s conduct. Whilst she accepted that the husband had paid $206,807 to her, she stated that the husband has since been deducting ‘$5,000 from the children’s monthly maintenance. The [children’s] maintenance went from $30,000 and unilaterally deducted to $2,650 per month for both children’ and she has been ‘the one paying his debt to repay [herself]’ ever since the sentence imposed by the Judge. Mr Li did not dispute that the husband has not been paying the full amount of children maintenance under the Children Finance Order, but submitted that the circumstances and reasons for it were matters in dispute.”[28]

47.  The Court of Appeal thus accepted that the applicant had made payment, purging his contempt.  It treated the respondent’s complaints as to subsequent non-compliance as matters to be dealt with on another day:

“We ... pointed out to the wife that the issue of unpaid or unilateral deduction of children maintenance by the husband had to be resolved in the Family Court. We note also that she had already issued a judgment summons in this regard.”[29]

48.  The sentence of committal was therefore set aside in accordance with the suspensory order made by the Judge.  It is in the circumstances impossible to see any point in pursuing the proposed appeal.  In purging his contempt, the applicant implicitly accepts that he was in contempt.  We see no purpose in addressing on any appeal the proposed questions regarding the proper procedure to adopt when seeking an order for committal. They no longer have any relevance in the light of the finding of contempt, the sentence and the applicant’s purging of his contempt in the present case.

49.  For all the foregoing reasons the application for leave to appeal was dismissed.  After having heard the parties, in line with the Court of Appeal’s approach, we awarded the respondent the costs of this leave application summarily assessed at $10,000 to be paid to her within 7 days.