PM formerly known as PJ v. VM also known as MV

FCMC 614/2020

[2025] HKFC 186

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 614 OF 2020

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BETWEEN

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D E C I S I O N

(Setting aside leave to issue Committal Summons/
Dismissal of Committal Summons/Dismissal of ex parte
Application for dispensing personal service)

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Introduction

1.  This is the substantive hearing of a Summons[1] taken out by the Respondent husband (“H”) on 5/6/2024 seeking, inter alia, to:-

(a) set aside leave granted to the Petitioner wife (“W”) on 19/2/2024 to issue committal proceedings (“setting aside leave application”)[2];

(b) dismiss W’s Committal Summons issued on 23/2/2024 (“dismissal of committal summons application”)[3];

(c) dismiss W’s Committal Summons for not having obtained leave pursuant to Section 12 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”) to enforce arrears from 20/11/2020 to 2/2/2022 which was over 12 months[4];

(d) dismiss W’s ex parte application for dispensing with personal service of the Order of HH J Melloy dated 23/9/2020 (“MPS Order”) (“dismissal of dispensation application”)[5];

(e) set aside W’s Committal Summons on grounds of breaches of Order 45 rules 7(2), 7(4) and Order 52 rule 3(1A) of the Rules of the High Court, Cap.4A (“RHC”)[6]; and

(f) W’s Committal Summons be stayed pending final determination of H’s variation application dated 9/12/2022 (“H’s stay application”)[7].

2.  The above applications were sought as further or alternative reliefs in H’s Summons.

3.  H’s Summons was supported by his 11^th Affirmation[8]. H’s 13^th Affirmation[9] was filed in reply to W’s 21^st Affirmation[10] in Opposition.

Background

4.  Parties married in 2005 and there are 2 children of the family. There was an earlier Petition for divorce filed by W under FCMC No.11058/2018 on “Unreasonable Behaviour” which was stayed upon the Petition in these proceedings on “One Year Separation” being filed.

5.  H filed the Acknowledgement of Service in FCMC No.11058/2018 on 10/9/2018. A Notice to Act was then filed by Messrs. Munros, Solicitors 4 days later on 14/9/2018 acting for H. A Notice of Change of Solicitors was filed by Messrs. Chaine, Chow & Barbara Hung, Solicitors (“CCBH”) on 25/10/2018 in place of Messrs. Munros, acting for H. The law firm CCBH acted for H since then and also throughout in these proceedings.

6.  By an Order granted by Her Honour Judge Melloy dated 23/9/2020, H was ordered to pay interim maintenance for the 2 children of the family at the rate of HK$30,000 a month per child, totalling HK$60,000 a month, backdated from 12/8/2020; maintenance for W at the rate of HK$4,800 a month to commence on 12/10/2020. In the same Order, H undertook to pay the children’s school fees and school transport costs (“MPS Order”)[11].

7.  The MPS Order was granted after a 2-day hearing on 7/1/2020 and 23/6/2020 where both parties were legally represented and with Counsel engaged on both side. W was on legal aid for this application. Full reasons for the MPS Order was handed down by Her Honour Judge Melloy[12].

8.  H did not comply with the MPS Order after it was granted.

9.  On 19/11/2020 (that is, 2 months after the MPS Order), W issued a Judgment Summons (“JS”) seeking recovery of arrears due thereunder in the total sum of HK$267,482[13].

10.  It is common ground that the sealed copy of the MPS Order was served on H’s lawyers on 8/10/2020[14] but not personally served on H nor was it endorsed with a penal notice at that time. The full reasons of Her Honour Judge Melloy for granting the MPS Order was also collected by H’s lawyers after it was handed down.

11.  In respect of the MPS Order, H has separately made the following applications in 3 consecutive years of 2020, 2021 and 2022 :-

(a) By Summons dated 7/10/2020 seeking variation of the costs order nisi under the MPS Order (which was later dismissed on 13/9/2021)

(b) By Summons dated 25/2/2021 seeking suspension of the MPS Order (which was later dismissed on 5/8/2021) and

(c) By Summons dated 9/12/2022 seeking variation of the MPS Order (which had yet to be heard).

12.  In respect of W’s Committal Summons dated 23/2/2024[15], H opposed and made the present application(s) as per H’s Summons[16].

W’s Committal Proceedings

13.  With H’s non-compliance with the MPS Order and undisputedly over the past 4.5 years, there was accumulated arrears of unpaid interim maintenance around HK$1,279,600[17].

14.  On 12/12/2022, the examination process of H under the JS took place and H was legally represented by his lawyers Mr. Liu of CCBH.

15.  On 2/2/2023, W filed her 12^th Affirmation and her Statement under Order 52 rule 2(2) of the Rules of the District Court, Cap.336H (“RDC”) seeking leave to issue committal proceedings. Included as paragraph 4 of her Order 52 rule 2 Statement, W sought dispensation of personal service of the MPS Order on H[18].

16.  On 21/4/2023, Her Honour Judge T Kwan on paper directed :-

“Personal service of the order with a penal notice endorsed on the respondent is required.”

17.  On 17/8/2023, W’s lawyers managed to successfully serve the MPS Order (with penal notice endorsed) on H personally[19].

18.  On 19/2/2024, I granted leave to W to issue committal proceedings against H. Hence, the Committal Summons dated 23/2/2024 was issued in pursuance of the leave granted.

Parties’ respective positions

19.  H’s Counsel Mr Sam Ng in his Skeleton Submissions fairly submitted that this hearing does not concern whether W can prove her charge against H as set out in her Order 52 Statement (which H contested that the Statement was defective on various aspects). Whether H has been in contempt of court by being in breach of the MPS Order is a matter that could only be determined at trial of the Committal Summons if this Court dismisses H’s Summons.

20.  W’s Counsel Mr. Jeremy S.K. Chan in his Skeleton Submissions, at various paragraphs, emphasised that H’s Summons as it now stands and so intended by H, was seeking an outright dismissal/striking out of W’s attempt to bring in enforcement action against H. At paragraphs 4, 9 and 10 of W’s Counsel’s Skeleton Submissions, he said :-

“4. In Hong Kong with the law the way as it is and currently stands, there are limited avenues for the Wife when it comes to handling a recalcitrant litigant such as the Husband here. The Wife has all along been on Legal Aid, and it is submitted that it would not, for example, be prudent use of public funds to issue contempt proceedings every few months; when the fact of the matter is that the Husband has not and does not pay in accordance with Court Orders anyway and will adamantly meet enforcement attempts with delaying tactics including disingenuous application (e.g. alleged variations); and in the present case, seeking to outright dismiss/strike out attempts to enforce against him.

9. Given that the Husband is seeking to deny the Wife any opportunity for a Trial (if the Husband be correct, then the Wife will not be able to bring committal/contempt against the Husband, and he can escape any Trial from taking place), it is submitted that the Husband needs to satisfy a ‘striking out’ level in order to justify summarily dismissing the Wife’s applications without Trial.

10. On the other hand, the Wife submits that the Husband is wrong, and that the issues at stake (including inter alia e.g. the dispensation application) can only be resolved at a proper Trial and ought not to be summarily dismissed on a striking out basis without Trial and cross-examination of evidence.”

21.  It was also highlighted by W’s Counsel on the long delay of some 4.5 years where H had failed to comply with the MPS Order to the full extent and ended up with arrears accumulated in excess of HK$1 million as at the time of this hearing.

22.  W’s Counsel also saw fit to refer to the litigation background of these proceedings where both H’s father and mother had once joined in to intervene in the ancillary reliefs between H and W. H’s parents instigated the “TL v ML” procedure over bulk of assets under H’s name asserting beneficial ownership. H’s parents were all along legally represented by a separate firm of lawyers. It was only last year when the “TL v ML” proceedings were withdrawn with costs ordered (by way of paper disposal) against H’s parents[20]. This had led to W’s Counsel at the very beginning of his Skeleton Submissions said :-

“1. The parties married in 2005 and this was a long marriage; there are two children of the family (“the Children”). The first Petition for divorce was issued in FCMC No.11058 of 2018 in August 2018. Subsequently, the Petition for these proceedings was filed in January 2020. It has now been more than 5 years that has passed since this Petition was issued – but ‘the end’ is not in sight; in large part (if not completely) delay was caused by the Husband together with his parents (one cannot escape the suspicion that this was a conspiracy at least to the extent that they agreed to drastically increase complexity / difficulty for the Wife).”

The Applicable Law and Rules of Procedure

23.  Given H’s contention of procedural irregularities on W’s committal proceedings, starting from the very beginning when W sought leave from the Court, I will start by setting out below the applicable rules and procedure for enforcement of orders by way of committal proceedings.

24.  The applicable rules, in so far as commencing committal proceedings are concerned, are contained in Order 52 rule 2 of the Rules of the District Court, Cap 336H (“RDC”) which provides :-

“2. Grant of leave to apply for committal (O.52, r.2)

(1) No application for an order of committal against any person may be made unless leave to make such an application has been granted in accordance with this rule.

(2) An application for such leave must be made ex parte to a judge, and must be supported by a statement setting out the name and description of the applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on.

(3) The applicant must give notice of the application for leave not later than the preceding day to the Registrar and must at the same time lodge with the Registrar copies of the statement and affidavit.

(4) The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the applicant.

(5) Where an application for leave is refused by a judge or is granted on terms, the applicant may appeal against the judge’s order to the Court of Appeal within 10 days after such order.

(6) Without prejudice to the powers conferred by Order 20, rule 8, the judge hearing an application for leave may allow the applicant’s statement to be amended on such terms, if any, as the judge thinks fit.

(7) If the judge grants leave he may impose such terms as to costs and as to giving of security as he thinks fit.

3. Application for order after leave to apply granted (O. 52, r. 3)

(1) When leave has been granted to make an application for an order of
committal, the application shall be made by originating summons to a judge and unless the judge granting leave has otherwise directed, there must be at least 8 clear days between the service of the originating summons and the day named therein for the hearing.

(1A) The originating summons shall state the grounds in respect of which leave for making an application for an order of committal has been granted.

(2) Unless within 14 days after such leave was granted the originating summons is entered for hearing the leave shall lapse.

(3) The originating summons, accompanied by a copy of the statement and affidavit in support of the application for leave under rule 2, and the notice of hearing of the originating summons must be served personally on the person sought to be committed.

(4) Without prejudice to the powers of the Court under Order 65, rule 4, The judge may dispense with service under this rule if he thinks it just to do so.”

25.  Given H’s other contention on the lack of personal service of the MPS Order on H before the alleged breach of the MPS Order had arisen, I also set out below those procedural rules under the RDC for enforcement (which includes by way of committal proceedings) of orders.

26.  To start with, Order 45 rule 5 of the RDC provides :-

“5. Enforcement of judgment to do or abstain from doing any act (O.45, r.5)

(1) Where –

(a) a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or, as the case may be, within that time as extended or abridged under Order 3, rule 5; or

(b) a person disobeys a judgment or order requiring him to abstain from doing an act, then, subject to the provisions of these Rules, the judgment or order may be enforced by one or more of the following means, that is to say,

(i) with the leave of the Court, a writ of sequestration against the property of that person;

(ii) where that person is a corporation, with the leave of the Court, a writ of sequestration against the property of any director or other officer of the corporation;

(iii) an order of committal against that person or, where that person is a corporation, against any such officer.

(2) Where a judgment or order requires a person to do an act within a time therein specified and an order is subsequently made under rule 6 requiring the act to be done within some other time, references in paragraph (1) of this rule to a judgment or order shall be construed as references to the order made under rule 6.

(3) Where under any judgment or order requiring the delivery of any goods the person liable to execution has the alternative of paying the assessed value of the goods, the judgment or order shall not be enforceable by order of committal under paragraph (1), but the Court may, on the application of the person entitled to enforce the judgment or order, make an order requiring the first-mentioned person to deliver the goods to the applicant within a time specified in the order, and that order may be so enforced.”

27.  Further, Order 45 rule 7(2), (4), (6) and (7) of the RDC, which deal with service of the order where enforcement was sought, provides :-

“7. Service of copy of judgment, etc., prerequisite to enforcement under r.5 (O.45, r.7)

(1) ……

(2) Subject to Order 24, rule 16(3), Order 26, rule 6(3) and paragraphs (6) and (7) of this rule, an order shall not be enforced under rule 5 unless –

(a) a copy of the order has been served personally on the person required to do or abstain from doing the act in question; and

(b) in the case of an order requiring a person to do an act, the copy has been so served before the expiration of the time within which he was required to do the act.

(3) ……

(4) There must be indorsed on the copy of an order served under this rule a notice informing the person on whom the copy is served –

(a) in the case of service under paragraph (2) that if he neglects to obey the order within the time specified therein, or, if the order is to abstain from doing an act, that if he disobeys the order, he is liable to process of execution to compel him to obey it; and

(b) in the case of service under paragraph (3) that if the corporation neglects to obey the order within the time so specified or, if the order is to abstain from doing an act, that if it disobeys the order, he is liable to process of execution to compel the corporation to obey it.

(5) ……

(6) An order requiring a person to abstain from doing an act may be enforced under rule 5 notwithstanding that service of a copy of the order has not been effected in accordance with this rule if the Court is satisfied that, pending such service, the person against whom or against whose property it is sought to enforce the order has had notice thereof either –

(a) by being present when the order was made; or

(b) by being notified of the terms of the order, whether by telephone, telegram or otherwise.

(7) Without prejudice to its powers under Order 65, rule 4, the Court may dispense with service of a copy of an order under this rule if it thinks it just to do so.”

Discussion

(a) W’s Order 52 rule 2 Statement

28.  W’s Order 52 rule 2 Statement was dated 2/2/2023 (“Order 52 Statement”).

29.  As I have held in one of my decisions (CKF v LHL, FCMC No.17031 of 2014, unreported), the Order 52 Statement is to be treated similar to an indictment in criminal proceedings, having regard to the penal nature of the sanctions for contempt.

30.  One of the contentions made by H was that W’s Committal Summons dated 23/2/2024 should confine to matters stated in the Order 52 Statement (see CKF v LHL (supra)). Given that nothing in the body of the Order 52 Statement shows that H was aware of the consequences of disobedience of the MPS Order, save that it only contained a bare assertion[21] of H at all material times was fully aware of the terms of the MPS Order, W failed to discharge her burden to prove beyond reasonable doubt that prior to 2/2/2023 when the Order 52 Statement was filed, H was aware of the consequences of disobedience.

31.  There are clear guidance as to the contents required of in the Order 52 rule 2 Statement (see 52/2/6 of the Hong Kong Civil Procedure 2025 at page 1175). Briefly said, the Order 52 rule 2 Statement shall contain :-

(a) the name and description of the applicant;

(b) the name, description and the address of the person sought to be committed;

(c) the relief sought;

(d) particulars of the order or the undertaking alleged to have been breached;

(e) in case of civil contempt, the personal service thereof on the alleged contemnor;

(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……..;

(g) where the application for committal is based on an alleged interference with a potential witness, ………..”

32.  It was also said the test for the sufficiency of the Order 52 rule 2 Statement is :

“Does it give the person alleged to be in contempt enough

information to enable him to meet the charge ?”

(see Chiltern D.C. v Keane [1985] 1 WLR 619 CA at 622 per Sir John Donaldson MR speaking in terms of the notice of motion but applied to the statement by Yam J in Incorporated Owners of United Building v Ng Yuk Ming [1994] 3 HJKC 637.

33.  W’s Order 52 Statement is a 24-page document[22]. Having read through the Statement carefully, I noticed that a sizeable quantity of it, in my view, are either reciting what was already in the Court file or referring to historical background leading to the filing of the JS; the amendment of the JS to include a “warning notice” prior to the Examination hearing of the JS[23]; what happened at the Examination hearing on 12/12/2022[24]; exchange of correspondence between lawyers[25], subjective analysis of existing facts and evidence adduced, so on and so forth; and also contained other matters which are not commonly seen or required of in an Order 52 rule 2 Statement. This is unorthodox, unsatisfactory and, with all due respect, poorly drafted. It was drafted in a way as if it was a “narrative affidavit” (under Section 7 of the MPPO) rather than a proper Order 52 Statement (under Order 52 rule 2 of the RDC/RHC).

34.  To be fair to W, I would recite below those headings in the 24-page Order 52 Statement under which contained narrative description of facts rather than providing concise details and particulars of those breach(es) of he MPS Order by H. Those headings are :-

- Interim Maintenance Order and Judgment[26];

- No appeal of the Interim Maintenance Order by H and his subsequent failure to pay[27];

- Judgment Summons[28];

- H’s continuing failure to pay and his decision to instruct his legal team to take out unsuccessful applications on suspension and on costs[29];

- H’s continuous failure to pay and other breaches[30];

- H’s continuing failure to pay and his other breaches, resulting in the issuance of the Amended Judgment Summons and the Examination Hearing[31];

- Assessment of means to pay[32];

- Dispensation of personal service[33];

- Full and frank disclosure[34];

- Conclusion[35].

35.  To put a concluding view/Conclusion at the end of the Order 52 Statement speaks volume. This sufficiently support my observation on the unsatisfactory drafting of the Order 52 Statement.

36.  Rightly submitted, H’s Counsel in his Skeleton Submissions said :-

“44. From the Order 52 Statement itself, the alleged contemnor should know with sufficient particularity what are the breaches alleged. It should not leave the alleged contemnor to extract and cull for himself from a historical narrative in the statement the relevant dates and times and so forth, and to work out for himself the precise number of breaches being alleged and the occasions on which they took place.”

37.  That said, H’s Counsel further submitted that the degree of particularity required of in the Order 52 rule 2 Statement depends on the nature of the order which was alleged to be breached and the background of the case (see YBL v LWC [2017] 1 HKLRD 823 at §40).[36]

My Views

38.  For the nature of the Order, this was the MPS Order which was an interim arrangement requiring repetitive payment(s) of fixed amount at regular time intervals to meet the immediate and recurring financial needs of the recipients, namely W and the 2 children. Regarding H’s Undertaking embodied in the MPS Order to pay the children’s school expenses and transport costs, it was an agreement (without any pre-conditions or conditions imposed) given by H on his own volition to pay those expenses. Thus, the MPS Order as a whole could be viewed upon as a simple order to pay.

39.  That said, whenever enforcement proceedings are contemplated or invoked under due process of law, especially when such process of enforcement carries with it punitive sanctions and/or grave consequences, the party alleged to be in breach of the court order must, as a matter of law and procedural fairness, be fully apprised of the details and particulars of what he/she had done or failed or omitted to do which constitute the breach complained of and giving rise to the enforcement process. This is precisely what Order 52 rule 2 catered for.

40.  In my view, there was no difference between breach of a simple court order to make payment and a complicated order which requires in-depth study to ascertain whether a breach had occurred. There was also no difference between a breach which was substantial or a trivial one. The only difference would be the type or level of sanction to be imposed after the breach was proved to the requisite standard.

41.  It is trite law that issuing committal proceedings in matrimonial cases are rare and should only be taken as the “last resort[37]” and should not be any routine to compel compliance or performance of court orders. Hence, the specific procedural requirement for obtaining leave to commence Committal Proceedings under Order 52 of the RDC/RHC clicks in, which must be strictly observed. Once this was done, the Court would have to decide upon the Order 52 Statement to see whether leave be granted to issue the Committal Summons, a draconian procedure citing the person in breach of court orders for contempt of court.

42.  Given further consideration to the 24-page “narrative” form of the Order 52 Statement, I tended to agree with H’s Counsel on the point of lack of detail and sufficient particularity letting H have enough information to enable him to meet the charge[38].

43.  In this connection, I fully endorse the following paragraph in H’s Counsel Submissions :-

“From the Order 52 Statement itself, the alleged contemnor should know with sufficient particularity what are the breaches alleged. It should not leave the alleged contemnor to extract and cull for himself from a historical narrative in the statement the relevant dates and times and so forth, and to work out for himself the precise number of breaches being alleged and the occasions on which they took place.”

44.  I have reminded myself, on the peculiar facts of this case (my emphasis), that even though there were repetitive monthly non-payment(s) of identical sum(s) of money for a long period of time, say, around 4.5 years back to 2020, this would not (my emphasis) dispense with the need to specify and provide details and particulars as to which month of which year that default (or breach) had taken place in respect of which W was now citing H for contempt of court.

45.  It was only with such details and particulars that could enable H to decide how to meet the charge brought against him. For instance, H could either defending it on good cause being shown, or seeking indulgence from the Court, or seeking to purge the contempt even belatedly by making payment. More importantly, given the statutory provision[39] which stipulates that enforcement of arrears of maintenance due over 12 months could only be taken with leave of the Court, H should not be deprived of such provisions of the law; in particular, when undisputedly there were many months when he had not paid up. That said, it was necessary, and indeed the requirement for pursuing enforcement by way of committal proceedings, for W to state precisely which month of default she was pursuing to enable H to decide which option(s) to take in respect of that particular breach.

46.  To accept a general assertion that H had been in default of payment for a period of time would, in my decision purely from the perspective of procedural fairness, be prejudicial to H for not knowing whether the arrears was within the 12-month period and leave to enforce was not required, or otherwise.

47.  For the background of this case, it has been set out in W’s 24-page Order 52 Statement. Suffice for me to say was that this was a simple and straightforward divorce case which carries with it those commonly seen financial obligations to maintain the spouse and the children. It requires no elaboration or explanation in any detail.

48.  I stand by my decision on the requirement to specify and provide details of breach in the Order 52 Statement for the reasons I made in paragraph 45 of this Decision.

49.  To conclude on this topic, I agreed with H’s Counsel that the Ex Parte Leave granted on 19/2/2024 upon W’s Order 52 Statement must be set aside for the reasons above.

50.  With my decision on setting aside the Ex Parte Leave dated 19/2/2024, the Committal Summons dated 23/2/2024 issued pursuant to such leave must be dismissed.

(b) H’s knowing the MPS Order and consequence of disobedience

51.  There was a Consent Order granted by Deputy District Judge J. Cheung on 22/8/2022[40] whereby H agreed through his lawyers CCBH to pay a sum of HK$650,000 (by way of 4 instalments) with the last instalment ending on 31/10/2022, as partial settlement of the sums due at the time (my emphasis) under the MPS Order. It was agreed that upon full payment of the 4 instalments, the examination hearing of the JS scheduled on 12/12/2022 would be vacated with liberty to restore after the FDR hearing.

52.  Further, within the year of 2022, there were 4 separate letters written in January, July and August by W’s previous lawyers (“BCC”) to H’s present lawyers CCBH, all of which referred to H’s persistent breach of the MPS Order and highlighted to H being in “contempt”.

53.  Those part of the scripts within the 4 letters where H was reminded or warned for being in “contempt” were set out in italics below :-

(a)	Letter dated 12/1/2022	-	“Contempt would either result in your client’s paying a fine or being sent to prison. …… We once again urge that your client should purge his contempt right now.”[41]
(b)	Letter dated 12/7/2022	-	“There should not be any need for us to reiterate that the Order of 23rd September 2020 provides that your client is to support our client and the children financially pending further orders to be made. …… It is outrageous for you to impose conditions for your client’s compliance of an existing order which remains in force. …… We trust you have advised your client that he should comply with the existing order, ……”[42]
(c)	Letter dated 22/7/2022	-	“We do not wish to repeat ourselves on the strength of an existing order and it is for your client to prove to the Court that his conduct so far is not contemptuous. …… In the face of your client’s continual breach of the MPS Order and his adamant refusal to financially support the family since August 2020, ……”[43]
(d)	Letter dated 16/8/2022	-	“We once again urge your client to purge his contempt.”[44]

54.  It then came along the letter dated 5/12/2022[45] where H’s lawyers CCBH wrote to W’s lawyers setting out a table with calculation to confirm the total amount of arrears due and unpaid as at 12/12/2022 was HK$1,279,600; after taking into account of HK$200,000 partial repayment made on 26/1/2022 and HK$300,000 partial repayment made pursuant to the Consent Order dated 22/8/2022.

55.  W claimed that H must have full knowledge of the MPS Order and the consequences of disobedience as early as in 2022, attempting to salvage the late endorsement of a penal notice on the MPS Order only in May 2023 and the belated personal service of the same on H three months later in August 2023; when the time for payment for those arrears past due had already expired.

My Views

56.  Taking into account the contents of the letters exchanged between H’s and W’s lawyers, H could not deny that he must have knowledge of the MPS Order; for otherwise, he would not be able to instruct his lawyers CCBH to respond to W’s lawyers by letter dated 5/12/2022 with details of calculation of sums due under the MPS Order. Perhaps this might be the reason for W’s Order 52 Statement to simply barely assert that it was clear that H must have knowledge of the MPS Order.

57.  As pointed out by Hon Coleman J in the case of Trends Hong Kong Ltd v. Arthur Shevchenko [2019] HKLRD 2936 on the topic of “Penal Notice”, where His Lordship said:-

“……..The point is that the person the subject of the order ought in most circumstances to be made aware – whether in writing or orally – of the consequences of breaching any order (my emphasis), before any committal proceedings might be brought.”

58.  Pausing here, it was clear from the above guidance that what really matters was the contemnor’s awareness of consequences of breach rather than his/her knowledge of the terms of the Order in question. This called for the need of a penal notice to be endorsed on the subject order and followed by personal service of it on the contemnor. Further, the party seeking committal proceedings bears the burden to prove beyond reasonable doubt that the contemnor was aware of the consequences of breach.

59.  H’s Counsel had helpfully set out in paragraph 12 of his Skeleton Submissions a snapshot of the chronology that had happened before the Ex Parte Leave was granted :-

“On 21/4/2023, W was directed by HHJ T Kwan to effect personal service of the MPS Order with penal notice endorsed[46];

On 3/5/2023, W applied to endorse a penal notice on the MPS Order[47];

On 9/5/2023, the MPS Order with penal notice endorsed was sealed[48];

On 17/8/2023, the MPS Order with penal notice endorsed was personally served on H[49];

On 19/2/2024, the Ex Parte Leave was granted”

60.  W’s case that H was aware of the consequences of breach could not be any time earlier than 2/2/2023 when she filed her Order 52 Statement to trigger the Committal Proceedings, and if not, at any later time when H was duly served the MPS Order (with penal notice) in August 2023.

61.  In my decision, words or statements made in letters dated back to 2022 to warn or remind H that he was or might have been held liable for “contempt” could not displace or replace the strict requirement of a penal notice to be given to H. It has been decided that a penal notice would only be dispensed with in rare or exceptional circumstances[50]. Further, endorsement of a penal notice does not have any retrospective effect[51].

62.  Hence, I find W’s case that H was aware of the consequences of breach as early as the time when the lawyers’ letters were exchanged in 2022; or at any time before her Order 52 Statement dated 2/2/2023 was filed, cannot be substantiated.

63.  In any event, I find and decided that it was only at and when H was personally served with the MPS Order (with penal notice endorsed) that he could be said to be aware of the consequences of breach of the MPS Order, but not any time earlier.

64.  With such finding and decision, in addition to my earlier decision under paragraph 49 above on setting aside the Ex Parte Leave, W’s Committal Summons dated 23/2/2024 must be dismissed.

(c) Section 12 of the MPPO, Cap.192

65.  This contention was raised for completeness given that H does not accept W confining her case on committal for arrears of maintenance under the Examination Summons which took place on 12/12/2022[52]. H was making the contention on the absence of leave for W to enforce those arrears of maintenance between 20/11/2020 to 2/2/2022, which apparently was over 12 months and would require leave to do so under Section 12 of the MPPO, Cap.192.

66.  W’s Counsel in his Skeleton Submissions tactfully said :-

“56. As stated in the Order 52 Statement and above, all along the Wife has only been seeking relief against the sum of HK$267,482 for the period from August 2020 (backdated by the MPS Order dated 23 September 2020) to November 2020. Given that the Judgment Summons was filed on 19 November 2020 [C6/1479], the amount sought to be enforced falls within the 12-month period. The requirement of leave under Section 12 of the Matrimonial Proceedings and Property Ordinance (Cap.192) [H#11] plainly does not arise.”

67.  At paragraph 48 of W’s Order 52 Statement[53], it was said :-

“48. W therefore proceeded on the basis that, at the very least, the parties have agreed the HK$1,279,600 is due and outstanding under the Interim Maintenance Order”.

68.  At paragraph 1 of W’s Committal Summons[54], it was drafted as follows :-

“1. The Respondent VM also known as MV be committed to prison for his contempt of this Honourable Court in acting in breach of the Order granted by HHJ Melloy on 23 September 2020 in the proceedings of FCMC 614 of 2020 (“the Interim Maintenance Order”).”

69.  It has been decided in the earlier case of CKF v LHL (supra), that the Committal Summons issued must confine to matters of default set forth in the Order 52 Statement.  Any deficiency or defect in the Order 52 Statement could not be rectified or clarified by affirmation evidence. 

70.  Comparing the paragraphs quoted from the Order 52 Statement and the Committal Summons above, there was inconsistencies between the two as the former referred to the entire sum of HK$1,279,600 whilst the latter only referred to H’s breach generally without specifying any amount, let alone details and particulars of H’s breach. 

71.  Apparently with the extensive experience of W’s Counsel in matrimonial litigation, the inconsistencies was readily noted by him who then came up with his tactful submissions as per the paragraph which I quoted above.  With the “tie-up” of the sum of HK$267,482 (arrears from August 2020 to November 2020) with the JS issued in the same month of November 2020, hopefully any issue of over 12-months might be avoided without being noticed.

72.  I tended to adhere to the established principles on committal proceedings. Although I have dismissed the Committal Summons in the preceding paragraphs of this Decision, any views or decision on this topic would not be required. However, for the sake of completeness and not otherwise, I am prepared to say paragraph 1 of the Committal Summons was actually pursuing against H for his contempt in breaching HHJ Melloy’s Order on payment dated back to 2020.  The magic words of “All along…..” used in paragraph 56 of W’s Counsel Skeleton Submissions, with respect, could not change the actual time when the breach first occurred in 2020 which led to the present committal proceedings. 

73.  In my view, the filing of the JS in the month of November 2020 was neither here nor there.  The reality at present was that W was now attempting to cite H for contempt for his default of payment in 2020.  The crux was the conduct of not paying.  Any payment of the HK$267,482 would be a matter of purging the contempt.  Given W’s application referred to years of non-payment of H with no details or particulars of H’s breach, I could only say W’s position was not accepting or agreeing to any payment or partial payment of H as purging any of the contempt that had arisen.  In this regard, I tended to agree with H that W had not obtained leave to enforce those arrears under the MPS Order from the time when the Order was granted by HHJ Melloy.

74.  Briefly said, W had to seek leave under Section 12 of the MPPO, Cap.192.

Dispensation of Penal Notice

75.  I fully agree and indeed bound by the decision of Hon Coleman J in the case of Trends Hong Kong Limited (supra) insofar as penal notice was concerned.   I am not convinced that there are “rare and exceptional circumstances” for dispensation of penal notice in this case. The belated endorsement of penal notice would have no retrospective effect and hence does not assist W’s case any further.

Stay of Committal Summons

76.  Finally on this topic, which came along as an alternative reliefs sought by H if his Summons was dismissed, was no longer required given my dismissal of the Committal Summons.

Conclusion

77.  For all the above reasons and analysis, I now grant the following Orders in respect of H’s Summons dated 5/6/2024 :-

(a) The Ex Parte Leave dated 19/2/2024 obtained by W be set aside; and

(b) The Committal Summons issued dated 23/2/2024 issued by W be dismissed.

Costs

78.  On costs, I decided as follows :-

(a) W should pay H the costs of and occasioned by H’s Summons dated 5/6/2024 including all costs reserved (if any), to be taxed if not agreed;

(b) W should pay H the costs of and occasioned by the Committal Summons dated 23/2/2024, including all costs reserved (if any), to be taxed if not agreed; and

(c) W’s own costs in respect of H’s Summons and the Committal Summons be taxed in accordance with Legal Aid Regulations.

79.  I also grant Certificate for Counsel on the above costs orders.

80.  This is a costs order nisi which would become absolute if no application is made within 14 days from the date of this Decision.

81.  Last but not least, I wish to express my gratitude to Counsel and the legal teams for their valuable assistance to this Court.