TKLK v. WKJ

FCMP 38/2007

[2024] HKFC 164

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 38 OF 2007

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JUDGMENT
(Committal Proceedings)

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Applications

1.  This a hearing of the Applicant (“A”) ‘s Committal Summons filed on 31 March 2023 (A/41-62) to commit the Respondent (“R”) to prison for his contempt in breaching court orders on payment of minors’ maintenance and disclosure of residential address.

2.  Despite the fact that the committal proceedings were conducted in open court, in view of the fact that minors’ interests are involved, I have decided to anonymise the parties’ identity in this judgment, which was delivered in open court.

Preliminary Procedural Matters

3.  Before I consider paragraph 1(1) of the Committal Summons, which is the main application to be determined by this court, it is necessary for me to comment on some preliminary procedural matters.

4.  It is noted that in the marginal notes of the Committal Summons (A/41), the following rules and jurisdictional basis are cited:

“Rule 90, Matrimonial Causes Rules (Cap.179A); O.52, Rules of High Court (Cap. 4A); Inherent Jurisdiction”.

5.  The above reference to Rule 90 of the Matrimonial Causes Rules, Cap. 179A (“MCR”) cannot be right.   In the present case, the underlying proceedings is an Originating Summons issued pursuant to Section 6 of the Parent and Child Ordinance, Cap.429 (“PCO”) and Section 10(2) of the Guardianship of Minors Ordinance, Cap. 13 (“GMO”).  Under Practice Direction 15.12, these are categorized as family proceedings as opposed to the more common matrimonial proceedings which are based on the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”).  In the circumstances, if a judgment creditor wants to take out proceedings to enforce a maintenance order in family proceedings, he should take out a judgment summons under O.90A of the Rules of District Court, Cap. 336H (“RDC”), which are in similar terms to rr. 87-88 of MCR, but in any event not under r.90 of MCR.

6.  If one should read r. 90 of MCR, it only states that an application for committal shall be made by summons; the provisions of O.52, r.6 of the Rules of High Court, Cap. 4A (“RHC”) requiring the hearing to be conducted in open court applies; and about the discharge of a committal order.  It is not a provision governing how the court should exercise its power on committing a judgment debtor for non-payment of maintenance in family proceedings.

Background and Chronology

7.  A is now aged 47.  R is aged 58, a practising solicitor by occupation.  When they met in 2003, A was single whilst R was already a married man.  From their romantic relationship, a pair of twins were born, who are now aged 17.   In 2007, A issued proceedings claiming maintenance for the children from R.  A long and winding series of legal battles were then fought resulting in various orders from the court.  The following chronology of the more relevant events are set out for a better understanding of case development since 2008:

26/8/2008	HH Judge Bruno Chan ordered R to pay the 2 minors’ maintenance at: (i)    $34,000/month until 1/10/2008, after which at $28,000/month ($14,000 each minor); and (ii)   Lump sum of $290,000.
5/10/2016	Upon A’s application, HH Judge Bruno Chan ordered (“2016 Order”): (i)    maintenance to be increased to $50,000/month ($25,000 each minor); and (ii)   A’s lump sum application was adjourned with penal notice endorsed for R’s appearance.
18/1/2017	R appeared and HH Judge Bruno Chan ordered (by consent) (“2017 Order”): (i)    R to continue to pay maintenance at $50,000/month ($25,000 each minor); and (ii)   R to pay a lump sum of $160,000 by 2 instalments.
18/1/2019	A applied for further upward variation of maintenance from $50,000 to $75,000/month together with a further lump sum.
25/1/2019	R applied for downward variation from $50,000 to $28,000/month and unilaterally reduced the maintenance paid by him to $28,000/month.
28/6/2019	R applied for: (i)    further downward variation to $16,500/month; (ii)   A to pay a lump sum of $2,091,000 to him; and (iii)  A to seek employment and pay the lump sum by instalments. R unilaterally reduced the maintenance paid by him to $16,500/month.
8/8 and 27/9/2019	Trial on the parties’ respective application for variation.
1/9/2020	Shortly before the handing down of the Judgment, R applied for (inter-alia): (i)   further variation of the minors’ maintenance to nil; and (ii)A to pay a monthly sum of $10,000 for 48 months or such other sums to him as compensation. R unilaterally reduced the maintenance paid by him to nil
17/9/2020	A applied for (inter-alia) R’s disclosure of his residential address.
22/9/2020	This court handed down judgment on the parties’ earlier 2019 applications and ordered (“2020 Order”): (i)    minors’ maintenance to be increased to $52,000 per month ($26,000 each) as from 1/2/2019; (ii)   R to pay a lump sum of $100,000; (iii)  A’s other applications for lump sums to be dismissed; (iv)  R’s other applications, including for variation from $50,000 to $16,500 to be dismissed; and (v)   R to pay costs $2,000.
7/6/2021	A issued Judgment Summons to enforce arrears of maintenance, lump sum payment and costs in the total sum of $1,187,000.
24-25/6/21	Hearing of arguments on the preliminary issue of Hadkinson Order and A’s application for the disclosure of R’s residential address.
24/8/2021	This court granted a Hadkinson Order and ordered (“2021 Order”): (i)   Unless R shall pay $328,500 to satisfy part of judgment debt and $100,000 as security for interest and sur-charge, R’s remaining application for variation be stayed; and (ii)R shall provide his updated residential address within 28 days.
10/1 and 6/4/2022	Examination of R was conducted under the Judgment Summons.  By consent, R confirmed the judgment debt at $1,851,120.
31/3/2023	A filed the present Committal Summons.
19/5/2023	A filed her 2nd Affirmation in support of her Committal Summons.
16/6/2023	R filed his Affirmation in opposition to the Committal Summons
23/8 and 8/12/2023	Trial of A’s Committal Summons. On 1st day of trial, the 2nd Affirmation of A’s solicitor and A’s 4th Affirmation were expunged from court files for being filed in breach of court orders.

8.  From the above chronology, one could see that R defaulted in maintenance payment starting February 2019, firstly by paying $28,000 instead of $50,000 per month, and later by paying $16,500 per month starting June 2020, and finally with nil payment since 1 September 2020.  He was also ordered to disclose his residential address on 24 August 2021, with which he has failed to comply even up to date.

9.  As a result of R’s default, A issued a judgment summons which was heard by Deputy Judge Elaine Liu (as HH Judge Elaine Liu then was) on 10 January 2022 and 6 April 2022 as an Examination Summons.  At the end of examination, the parties signed a consent summons in which, inter alia, R acknowledged the amount of judgment debt at $1,851,120 inclusive of interest but excluding costs as at 6 April 2022.

10.  On 31 March 2023, A issued the present Committal Summons applying for a committal order against R.

The Legal Principles

11.  In YBL v LWC [1], Lam VP (as Lam PJ then was) conducted a very detailed analysis of the enforcement of maintenance orders in family cases by way of judgment summons pursuant to r.87 of MCR.  It was held that the then practice of combining the examination process and committal process was incompatible with the protection of a judgment debtor’s fundamental rights under the Hong Kong Bill of Rights (“HKBoR”).  Remedial interpretation of r.87 was adopted in segregating the 2 processes.  Application under r.87 (2) of MCR would be read as confining to the examination process only.  In respect of the committal process, subject to specific provisions to the contrary in rr. 87 and 88 of MCR, the procedure under O.52 of RHC should apply.  From then on, any application under a Committal Summons will be subject to the strict requirements of O.52 RHC.

12.  At §17 of YBL, it was also stated that:

“17. In any case, as a matter of Hong Kong jurisprudence and the legislative framework underpinning Rule 87, we are satisfied that a judgment debtor can only be committed to the prison under the judgment summons if the court is satisfied beyond reasonable doubt that he or she is able to satisfy the judgment wholly or partly or has disposed of assets with a view to avoiding satisfaction of the judgment wholly or partly. In other words, imprisonment can only be ordered when one of the criteria in Order 49B Rule 1B(1) of The Rules of the High Court, Cap. 4A is satisfied.”

13.  To complete the discussion, O.49B r.1B states that:

“(1) Where the Court is satisfied, following the examination conducted under rule 1A or following an examination conducted under Order 48, that the judgment debtor-

(a) is able to satisfy the judgment, wholly or partly; or

(b) has disposed of assets with a view to avoiding satisfaction of the judgment or the liability which is the subject of the judgment, wholly or partly; or

(c) has wilfully failed to make a full disclosure as required under rule 1A(2) or at the examiniation under Order 48 or to answer any question as provided under that rule or Order,

it may, in its discretion, order the imprisonment of the judgment debtor for a period not exceeding 3 months.”

14.  Therefore, it is now abundantly clear that as far as non-payment of a judgment debt is concerned, before a court decides to exercise its discretion to commit a judgment debtor to a term of imprisonment, it has to be satisfied beyond reasonable doubt that the judgment debtor:

(a)  is able to satisfy the judgment, wholly or partly; or

(b)  has disposed of assets with a view to avoiding satisfaction of the judgment or the liability which is the subject of the judgment, wholly or partly; or

(c)  has wilfully failed to make a full disclosure as required under rule 1A(2) or at the examination under Order 48 or to answer any question as provided under that rule or Order.

15.  Although the principles as laid down in YBL were concerned with judgment summons procedure under r.87 of MCR, in view of their similarities, they are equally applicable to judgment summons procedure under O.90A of RDC: PDSL 10.2, §§15-16.

16.  I will now proceed to consider the Committal Summons by reference to the above principles.

Issues to be determined

17.  In my view, the following issues need to be determined by this court:

(1)  Whether R was in breach of the 2016 Order, 2017 Order, 2020 Order and 2021 Order.

(2)  For any non-payment of maintenance, has A discharged her burden to prove beyond reasonable doubt that:

(a)  R is able to satisfy the judgment, wholly or partly; or

(b)  R has disposed of assets with a view to avoiding satisfaction of the judgment or the liability which is the subject of the judgment, wholly or partly.

(3)  For non-disclosure of residential address, whether R breached the order intentionally.

(4)  If the court is satisfied all or any of the above, what kind of penalty should be imposed, in particular, whether R should be committed to a term of imprisonment, and if yes, for how long.

The Evidence of A

18.  A has filed 2 affirmations, and the more relevant one is her 2^nd Affirmation filed on 19 May 2023 (A/82-110).  In the said affirmation, A gave some details of the case’s background.  She mentioned despite the fact that some of the orders were not endorsed with a penal notice, R as a solicitor must be aware of the serious consequences in breaching a court order.  In respect of the 2016 Order and 2017 Order, she repeated some of the findings of HH Judge Bruno Chan’s Judgements and Orders and concluded at paragraph 26 therein that:

“26. Accordingly, the Court was satisfied that the Judgment Debtor had the ability to pay the amount of periodical payment ordered.”

She further testified that R must have reduced the maintenance payment by his own intentional act/omission to pay the full amount of maintenance.

19.  As to the breach of the 2020 Order, A again referred to the court’s judgment in saying that R’s disobedience of the 2020 Order must have been an intentional act/omission to pay the maintenance stipulated, and was not accidental, casual or unintentional.

20.  For the 2021 Order, A testified that despite her various requests and the court’s order, R still refused to disclose his residential address and it was an intentional act on the part of R.

21.  At the end of the affirmation, A stated that R’s failure to pay maintenance still continues and it is clear that R has the means to pay, and has refused and/or neglected to pay.  She said she has discharged the burden of proof beyond reasonable doubt and asked for relief to be granted as per the Committal Summons.

22.  A was cross-examined by R at trial but in my view, nothing special turns out from the said examination.

The Evidence of R

23.  R decided not to give evidence despite the warning that the court may not place any weight on his affirmation or other evidence filed.

Preliminary Points for Discussion

24.  Before I turn to the issues, I propose to deal with some preliminary points in respect of the Committal Summons.  Hopefully with the preliminary rulings, we could get some of the minor matters out of the way before we enter into a discussion of the more relevant issues.

The Committal Summons

25.  The starting point is to look at the Committal Summons, which contains 2 paragraphs.  The main application is in paragraph 1 (paragraph 2 just asks for dispensation of personal service), which contains 3 sub-paragraphs:

“1. This Summons was issued on the application of the above-named, [A] care of [address], pursuant to leave granted by His Honour Judge C.K. Chan herein on the 28^th day of March 2023. The above-named Applicant claims against the above-named Respondent, [R]:

(1) An Order that the above-named Respondent be committed to prison for his contempt of court in his intentional breach of (i) Order dated 5 October 2016, (ii) Order dated 18 January 2017, (iii) Order dated 22 September 2020, and (iv) Order dated 24 August 2022, with full particulars set out in the Schedule attached to this Summons;

(2) Alternatively to sub-paragraph (1) above, an Order that the above-named Respondent do (i) pay to the above-named Applicant the sum of HK$1,851,120 (calculated up to 16 April 2022) inclusive of interest at judgment rate and excluding costs, and (ii) provide the above-named Applicant with his up-dated/current residential address.

(3) An Order that the above-named Respondent so pay the costs of and incidental to these contempt proceedings (including but not limited to the application for leave to commence such proceedings) to the above-named Applicant, to be taxed on an indemnity basis if not agreed, with the above-named Applicant’s own costs to be taxed in accordance with Legal Aid Regulations.”

26.  My first observation is that the relief as prayed in paragraph 1(2) of the summons must fail.  The said sub-paragraph asks this court to order R to pay a sum of HK$1,851,120 and the provision of his residential address.  However, this is the hearing of a Committal Summons and the sole consideration is whether R is in contempt of court orders, and if so, whether he should be committed to a term of imprisonment.  This is not a proper forum for A to apply for a monetary order or a mandatory order for disclosure of residential address as in paragraph 1(2) of the summons.   After all, if the basis for the committal proceeding is that R has failed to pay any sum of money, or that he has failed to disclose his residential address as previously ordered, there is no point in ordering him to pay or disclose for a second time.

27.  Paragraph 1(2) of the Committal Summons should not be asked for in a Committal Summons and is therefore dismissed.

28.  The main applications are therefore restricted to paragraph 1(1) of the Committal Summons in which A asked for a committal order against R for his intentional breach of 4 court orders, namely:

(i)    Order dated 5 October 2016;

(ii)   Order dated 18 January 2017;

(iii)  Order dated 22 September 2020; and

(iv)  Order dated 24 August 2022,

with full particulars of breaches set out in the schedule attached to the summons. 

29.  However, if one looks at the orders previously made, there had never been any order made on 24 August 2022.  Instead, there was an order made on 24 August 2021 in which R was ordered, inter alia, to provide his residential address.  Despite such error, I note that the correct date of the order (i.e. 24 August 2021) has already been stated in the schedule itself and its reference as the “2021 Order” has also been repeated a number of times therein.  There is no likelihood that anyone would be mistaken about the date of that order.  In the circumstances, I am minded to exercise my discretion to waive such irregularity.

Personal Service and Penal Notice

30.  At the hearing, sometime has been spent on submissions concerning personal service of and penal notice endorsement on the relevant orders.  This is mainly due to the fact that those requirements might not have been fulfilled by A after the making of the 2020 Order and 2021 Order, at which times she was acting in person.

31.  Under O.45 r.7 (7) of RDC, the court has power to dispense with service of the order. This was confirmed in Kao, Lee & Yip v. Koo Hoi Yan[2], when Brennan NPJ held that at §69 that:

“69. The requirement of timely service under O.45 r.7 (2) was not met in the case of the first and second Order but O.45 r.7 (7) authorizes the Court to dispense with service “if it thinks just to do so” …..…”

32.  In the context of the present case, there is nothing to suggest that R was not aware of the 2020 Order and 2021 Order.  There were quite a few hearings before and after those orders and R had never contended that he had no notice of any of those orders. After all, it was R who refused to disclose his residential address (even up to now) which makes personal service extremely difficult, if not totally impossible, especially when A was acting in person.  In the circumstances, I am satisfied that R was well aware of the 2020 Order and 2021 Order during all material times, and I am prepared to exercise my discretion to dispense with personal service of the 2020 order and 2021 Order.

33.  After dispensation of personal service of the 2020 Order and 2021 Order, the endorsement of penal notice simply falls away and is no longer a relevant issue.  In Axa China Region Insurance Co. Ltd. V. Li Yu Ping, Ellen [3], Stock JA held at §37 that:

“37. Accordingly, it is plain that Judge Longley was empowered to dispense retrospectively with personal service of the order of Judge Muttrie, and that such power of dispensation extended, in so far as might be necessary, to the penal notice requirement, or rendered the requirement of a penal notice otiose.”

Was R in breach of the 2016 Order, 2017 Order, 2020 Order and 2021 Order?

2016 Order and 2017 Order

34.  As can be seen from the chronology, Judge Bruno Chan made an order for R to pay $50,000 per month as maintenance in the 2016 Order.  His Honour also made the 2017 Order ordering the $50,000 maintenance (payable under the 2016 Order) to continue together with the payment of an additional lump sum of $160,000.   Therefore, it can be said that the 2017 Order has already superseded the 2016 Order and it is superfluous in still arguing whether the 2016 Order has been breached. 

35.  For the 2017 Order, there is no dispute that R started to default in the payment of maintenance starting from February 2019.  In other words, the last full maintenance he has paid was for $50,000 in January 2019.  By this court’s judgment, i.e. the 2020 Order, R’s liability to pay monthly maintenance was increased to $52,000 per month which was dated back to February 2019.  In other words, the 2020 Order has again superseded the 2017 Order as from February 2019, meaning that any default starting from February 2019 has to rely on the 2020 Order.  There is no evidence that R has not complied with the maintenance payment before February 2019 and the lump sum payment of $160,000. Therefore, I am not satisfied that R was in breach of both the 2016 Order and 2017 Order.

2020 Order

36.  In the 2020 Order, this court ordered R to pay $52,000 per month as maintenance ($26,000 per minor) and a lump sum of $100,000.  The $52,000 maintenance order was dated back to February 2019.  There is no dispute that R defaulted in February 2019 by just paying $28,000 per month, which was further reduced to $16,500 per month in June 2020.  R further defaulted by reducing the maintenance to nil in September 2020.  After the hearing of the Examination Summons, the total amount of judgment debt was $1,851,120 calculated up to 6 April 2022.  R was clearly in breach of the 2020 Order.

2021 Order

37.  Under the 2021 Order, R was ordered to provide his residential address.  There is no dispute that R has not provided his residential address and so he must be in breach of the 2021 Order.

Non-payment of Maintenance

38.  The next issue is whether A succeeds in proving beyond reasonable doubt that:

(a)  R is able to satisfy the judgment, wholly or partly; or

(b)  R has disposed of assets with a view to avoiding satisfaction of the judgment or the liability which is the subject of the judgment, wholly or partly.

39.  Mr. Jeffrey Li of counsel represented A at the hearing.  Counsel submitted that A would rely on a “basket of factors” to prove R’s ability to pay.  He referred to those factors as “puzzles” in his written submissions and there were a total of 7 such puzzles.  He submitted that the reliance on such a “basket of factors” is sufficient to establish an only irresistible inference of R’s ability to pay, and thus satisfying the criminal standard of proof.  I was referred to a number of cases, and especially in Jeanny Helena Franslay v Fung Ariel Mei Shan[4] whereat G Lam J (as G Lam JA then was) said at §37(8):

‘(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 as 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.” ‘

40.  Mr. Li listed out 7 “puzzles” in his written closing submissions trying to establish that the only irresistible inference to be drawn against R was either (i) he is able to satisfy the judgment, wholly or partly; or (ii) he has disposed of assets with a view to avoiding satisfaction of the judgment or the liability wholly or partly.  The 7 “puzzles” are:

(1)  Puzzle 1:     Adverse inferences being drawn against R’s ability to pay maintenance in previous judgments, including the 2016 Order, 2017 Order and 2020 Order.

(2)  Puzzle 2:     R’s tampering of evidence.

(3)  Puzzle 3:     R’s hidden financial resources.

(4)  Puzzle 4:     Undisclosed employment.

(5)  Puzzle 5:     Connection to companies.

(6)  Puzzle 6:     Spending inconsistent with/beyond his declared means.

(7)  Puzzle 7:     Contumacious intent.

41.  It is regrettable to note that all these “puzzles” were not mentioned in the schedule attached to the Committal Summons, except Puzzle 1 on adverse inferences being previously drawn. Again, in A’s supporting affirmation (A’s 2^nd Affirmation), A repeated the rulings in the court’s 2020 Judgment (paragraphs 98, 108-109 and 111-112) on adverse inferences being previously drawn trying to prove R’s ability to pay (A/99-101).  A did testify on R’s failing to provide his residential address in her affirmation, but that was for proving the breach of the 2021 Order, but not for the 2020 Order.  Apart from these, nothing on the other “puzzles” was mentioned in A’s supporting affirmation. 

42.  In order to apply for leave to commence committal proceedings, a judgment creditor has to file a statement setting out certain information, and in particular, the grounds on which committal is sought: O.52, r.2 (2) RDC.  After leave being granted, the originating summons (which is the Committal Summons in the present case) shall state the grounds in respect of which leave has been granted: O.52, r.3 RDC.  The contents of this statement and the grounds being relied on is particularly important as it will be treated in a similar manner as an indictment in criminal proceedings having regard to the penal nature of the sanctions for contempt.  A judgment creditor is not allowed to rely on any grounds not stated in the Committal Summons: Paragraph 52/2/6 of Hong Kong Civil Procedure 2024, page 1171.  In the same paragraph, it was stated that, inter alia, the following should be included in the statement:

“(f) how and in what manner is it alleged the order, or undertaking has been breached, with sufficient particularity for a reasonable person in the position of the alleged contemnor to enable him to defend himself, by telling him exactly what is it that he has done or failed to do which constitutes the contempt….. The test for the sufficiency of the statement is: “does it give the person alleged to be in contempt enough information to enable him to meet the charge?” (Children D.C. v. Keane [1985] 1 W.L.R. 619 CA at 622, per Sir John Donaldson M.R.…”

43.  A judgment debtor’s right to be informed was also discussed in YBL, supra at §38 therein:

“38. We shall next focus our discussion on the right to be informed of the nature and cause of the charge under [Article 11(2)(a) of the HKBoR]. The right has been explained by Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary 2^nd revised Edn p.331 to cover “not only the exact legal description of the offence but also the facts underlying it”. The learned editor further opined that the information must be sufficient to allow preparation of a defence. The United Nations Human Rights Committee’s General Comment 13/21 of 12 April 1984 [8] interpreted the right under Article 14(3)(a), the equivalent of Article 11(2)(a) of HKBoR, as the right to be informed of “both the law and the alleged facts on which” the charge is based.”

44.  At §44 of the same judgment, the Court of Appeal also stated:

“44. Applying these principles in the context of a judgment summons, in light of our analysis above on the legal basis on which a committal could properly be ordered, whilst the non-compliance with the order is usually set out in the judgment summons as required under Form 23, the judgment creditor must also set out the factual basis for alleging that the [judgment debtor] has or has had the means to pay at the relevant time. In this respect, we agree with Ms Yip and Miss Lai that the information contained in a judgment summons in Form 23 is inadequate.”

45.  In my view, A has failed to provide sufficient particulars in the statement and in the Committal Summons on the “puzzles” that she was going to rely on, except puzzle 1. R has never been warned that A would rely on the cumulating effects of the facts stated in those “puzzles” (other than puzzle 1) to show that he has the ability to pay or that he has disposed of assets in order to avoid the judgment.  The first time that he was made aware of the intended use of the cumulating effects of these “puzzles” was in Mr. Li’s closing submissions at which time all evidence has already been filed.

46.  In the circumstances, it would not be fair to allow A to rely on all the “puzzles”, except puzzle 1 to try to prove R’s contempt.  Therefore, I will only consider Puzzle 1 to see if A has successfully discharged her burden of proof up to the required standard.

Puzzle 1: Adverse inferences drawn against R

47.  As submitted by Mr. Li, R has failed to provide any real financial disclosure since these proceedings, especially since 2016.  As a result, the court has to resort to drawing adverse inferences to find R’s ability to pay.  Based on those inferences, the court found in the 2016 Order, 2017 Order and 2020 Order that R was having such ability to pay and thus ordering him to pay $50,000 or $52,000 per month as the minors’ maintenance.

48.  It was stated in §47 of the schedule attached to the Committal Summons (A/58) that R’s non-payment of maintenance must have been intentional:

“47. Given [R] was found by the Court to have the means to pay, and had notice of the 2020 Judgment/Order, as well as the Learned Judge’s findings above, [R] ‘s breach thereto must have been intentional.”

My views

49.  There were in fact 2 sets of adverse inferences being drawn against R, one by Judge Bruno Chan in the 2016 Judgment, and the other one by this court in the 2020 Judgment.  Both sets of adverse inferences were drawn during the trial of the parties’ respective application for variation of maintenance order.

2016 Adverse Inference  

50.  As far as the adverse inference being drawn in the 2016 Judgment, Judge Bruno Chan was certainly not satisfied with the financial disclosures made by R and said at paragraphs 53 and 63 of the Judgment:

“53. As already noted above, [R]’s income disclosed in his Form E was not, and according to him could not be corroborated by any of his employers which seems to me simply incredible given the fact that they are apparently reputable or publicly listed companies, while the stated amount even in its entirety would not be sufficient to meet the Applicant’s present claim, let alone its net amount after taking into account of [R]’s own needs and spending. Furthermore, his unexplained absence at the trial has obviously robbed [A] the right to cross-examining him and to extract further information as to his true income position. In the premises this court is left with no alternative but to draw such adverse inferences against him, where appropriate, from the very limited evidence available before it, starting with those limited bank statements produced by him.

…

63. In the circumstances while [A] has every reason to suspect that [R] has been far from being full and frank as to his financial disclosure, for which certainly he should be required to come to court to fully explain himself and to redress the many shortcomings or defects of such disclosure to avoid any further adverse inferences to be drawn against him, there seems to be no other alternatives but to adjourn this part of [A]’s application to the next earliest available day with an order for [R] to attend that hearing with a penal; notice and a stern warning of the consequences he is at risk to face should he fail to do so, but in the meantime there is no reason why I should not make an interim order for him to increase the periodical payment for the minors to HK$50,000 per month to start from this month in October 2016, with any payment already made to be set off, and thereafter on the 1^st day of every month until the next hearing, which is 18^th January 2017 at 10 am with one day reserved for the hearing.”

51.  It is fair to say that the court was rather critical of R’s lack of full and frank disclosure of his financial affairs back in 2016 and adverse inference was therefore drawn on his ability to pay $50,000 per month at that time, i.e. in October 2016.  But one has to bear in mind that we are now considering whether R had the ability to pay at the time of default, i.e. February 2019 and thereafter.  More than 2 years have lapsed and it is too far-fetched to say that the only adverse inference that could be drawn against R is that he must have ability to pay in February 2019 and thereafter simply by reference to the adverse inference drawn back in October 2016.

2020 Adverse Inference

52.  The next issue is whether A could rely on the adverse inferences drawn and the findings of the court in the 2020 Judgment in discharging her burden of proof on R’s ability to pay the judgment debt as at February 2019 or thereafter.  Useful reference could be made to YBL, supra at §§97 and 134 therein:

“97. The use of findings in the previous judgments of the court is more problematic. In light of the difference in burden and standard of proof, notwithstanding it is a judgment between the same parties, it may be arguable that the rule in Hollington v F Hewthorn & Co Ltd [1943] KB 587 is applicable, see also Secretary for Justice v FTCW [2014] 1 HKLRD 849 at [93] and [94]. The point has not been fully canvassed before us. Instead, Ms Yip said it would be rare that a judgment creditor would only refer to the findings without referring to the underlying evidence deployed in the underlying application. We do not propose to engage in this point at length in this judgment other than making these observations. In respect of the fact that a judgment or order had been made in favour of the judgment creditor against the judgment debtor, the parties are obviously bound by that judgment and order on the usual principle of res judicata in its strict sense. On the question whether the judgment debtor is in default in complying with such judgment or order, it is a matter of post-judgment or post-order event and must be substantiated by evidence from the judgment creditor. That should not be difficult to establish in terms of defaults in paying maintenance or other judgment sums. On the question whether the judgment debtor has the means to pay at the material time of defaults, this is usually the controversial aspect in an application for committal and the findings of a judge in an earlier judgment on different burden and standard cannot per se be evidence for discharging the onus of the judgment creditor in the application for committal.

  …

134. However, the fact that the respondent was disbelieved when the MPS Order was made or when his setting aside application was dismissed does not necessarily mean that the court in a later committal application could not reach a different conclusion on his liability to pay at the material time.  Further, as we observed in [96] and [97] above, while there is no objection to the deployment in committal proceedings of affidavits and hearsay materials available from previous applications, owing to the difference in burden and standard of proof in committal proceedings, HH Judge CK Chan’s dismissal of the setting aside application or his findings on the respondent’s means to pay at the material time per se will not be sufficient to discharge the petitioner’s onus in the committal application (see [97]).” (underline added)

53.  By reference to the above rulings, for A to discharge her burden of proof on the criminal standard, she has to produce further evidence, or at least repeat the underlying evidence at the committal hearing and argue that such evidence is sufficient to prove beyond reasonable doubt that R did have the ability to pay at the relevant date.  A cannot simply rely on the adverse inferences previously drawn or the findings of the court at the original hearing which were reached by adopting the civil standard of proof.

54.  Under these circumstances, I cannot be satisfied beyond reasonable doubt that (i) R has the ability to pay the judgment debt or (ii) he has disposed his assets to avoid the 2020 Order, by simply relying on puzzle 1.  A’s committal proceeding against R in respect of the 2020 Order fails.

Breach of 2021 Order for the provision of residential address

55.  The breach of a court order amounts to civil contempt.  The burden is on the applicant to prove the respondent’s contempt beyond reasonable doubt.  As stated by DHCJ H Au-Yeung (as H Au-Yeung J then was) in Chan Ka Ho Abraham v. Tung Yin Ling Cora[5] that in considering such an application, the court adopts a 3-stage approach:

(1)  To construe the relevant court order to ascertain its meaning and operation;

(2)  To determine whether the respondent has in fact complied with the orders as so construed; and

(3)  To consider any failure to comply was accompanied by the state of mind necessary to establish punishable contempt.

56.  In the present case, the 2021 Order requires R to provide his residential address.  The reasons for making such an order could be found §§36-41 of the 2021 Judgment (A/273-275) and I do not propose to repeat them here.  There is little dispute that R did breach that order and such breach continues even up to date.

57.  At certain stages, R did mention about A going to his work place causing a big scene, vaguely suggesting that the non-disclosure of residential address might be necessary to protect people connected to him.  There is no substance in this contention, if there is indeed one.  First of all, R did not give evidence to try to convince this court that was in deed the case.  Secondly, if A is really going to cause nuisance to R at his residential address, he is always entitled to come to court for injunctive reliefs.  As a matter of fact, this was what happened in around September 2020, when A went to R’s work place causing a scene.  In order to stop A, an interim injunction was granted by this court on 23 September 2020 against her on the following terms:

“2. Interim injunction to restrain [A] from attending at and/or making telephone calls and/or sending faxes or making any verbal or written form of communication to [R]’s places of work and/or his family and to restrain [A] any nuisance, by telephone or fax or any verbal or written form of communication to [R]’s colleagues and/or his family.”

With such injunction in place, A has refrained from going to R’s work place again. 

58.  Furthermore, the provision of a person’s residential address is a statutory requirement in civil proceedings.  For example, under O.41 RDC which governs the form of affidavit to be filed in court, it was provided under r.1(4) that:

“(4) Every affidavit must be expressed in the first person and, unless the Court otherwise directs, must state the place of residence of the deponent and his occupation …” (Italics added)

59.  Similar requirements are also found in matrimonial proceedings and family proceedings and a party is required to provide his residential address when his Form E is filed.

60.  There is little dispute that R did breach the 2021 Order in failing to disclose his residential address.  The more important issue is whether such breach was intentional.  The 2021 Order on disclosure of R’s residential address was very clear and straight forward.  There was no attempt by R to comply with the order at all.  There was no reasonable explanation by R on why that order could not be complied with.  R did attend court hearing multiple times after the 2021 Order and he simply refused to provide his residential address, even when asked in court.  I have no doubt in my mind that the breach must be deliberate and intentional.  In this regard, I am satisfied beyond reasonable doubt that R was and still is in contempt of the 2021 Order by refusing to provide his residential address.

Summary of Findings

61.  Based on the above discussion, these are the main findings of the court:

(1)  The 2016 Order and 2017 Order have already been superseded by or merged with the 2020 Order.

(2)  The main issue to be decided in this Committal Summons is whether R was in contempt of the 2020 Order and 2021 Order.

(3)  For A to succeed in the committal proceeding of the 2020 Order, she has to prove beyond reasonable doubt that R has the ability to satisfy the 2020 Order wholly or partly; or that he has disposed of assets wholly or partly trying to avoid the 2020 Order.

(4)  A is only allowed to rely on “Puzzle 1” in her evidence as she has failed to properly inform R of her intended use of “Puzzles 2-7” as evidence in her statement and in her Committal Summons.

(5)  “Puzzle 1” is mainly a repetition of the adverse inferences drawn and findings in previous judgments and the court cannot be satisfied beyond reasonable doubt that R has the ability to pay or has disposed of assets by reference to those inferences or findings alone.

(6)  R has failed to provide his residential address in breach of the 2021 Order and the court is satisfied beyond reasonable doubt that the said breach was intentional.

Orders

62.  Based on the above findings, I am not satisfied beyond reasonable doubt that R was guilty of contempt in respect of the 2020 Order.  On the other hand, I am satisfied beyond reasonable doubt that R was guilty of contempt in respect of the 2021 Order in not providing his residential address as ordered.

Penalty and Costs

63.  I now proceed to deal with the issues of penalty and costs.

Representation:

[1] [2017] HKCU 11

[2] (2009) 12 HKCFAR 830

[3] [2002] 3 HKC 339

[4] [2021] HKCFI 258

[5] [2023] HKCFI 1170 at paragraphs 32-33