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Wong () v Choi () [2021] HKFC 25; FCMC 7705/2019

Judgment – Committal – Refusal to file Answer to Questionnaire – Imprisonment

Judge:                         Deputy District Judge T. Kwan

Date of Judgment:       29 January 2021

  1. The Wife (57) petitioned in August 2017 for unreasonable behaviour against the Husband (73). The Husband filed Form E in March 2018 and updated Form E in November 2018. Fresh petition was filed by the Wife in July 2019.
  2. On 13 September 2019, HHJ G Own ordered the Husband to file his Answer (“Answer”) the Wife’s Questionnaire within 28 days. (“September Order”) The Husband did not comply nor did he give any reasons for doing so.
  3. On 22 October 2019 the parties’ respective solicitors signed a Consent Summons for extension of time. On 25 October 2019, the Husband filed a Notice to Act in Person.
  4. The Consent Order was made on 1 November 2019, granting a final extension of time to the Husband to file his Answer by 12 November 2019. (“November Order”) He did not do so.
  5. On 7 January 2020, the Husband filed a brief Answer that was clearly deficient.
  6. On 9 January 2020, HHJ G Own ordered the Husband to within 42 days file an Answer with attachments/enclosures (“Perfected Answer”), with penal notice endorsed. (“January Order”) The Husband did not do so.
  7. On 20 May 2020, the Wife sought leave to commit the Husband pursuant to O. 52, r. 2 RHC and was granted leave six days later.

Knowledge of the Husband towards these proceedings

  1. Both the September Order and the November Order were made by consent, with the Husband being represented by the same firm of solicitors. The extension of time granted in the January Order was sought by the Husband, and the January Order was served on the Husband personally.
  2. The Summons for committal was personally served on the Husband. The Husband attended the directions hearing (for committal) of 16 July 2020 and 14 September 2020 personally, and the directions given were mailed to the Husband or served personally on him.
  3. On November 2020 the Husband instructed solicitors. However, at the committal hearing (ie 6 January 2021) he discharged his legal representatives. As the Husband feigned ignorance of the nature of committal proceedings, the Court asked his solicitors to explain it to the Husband before leaving the courtroom.

The Answer filed by the Husband

  1. The Husband refused to produce proof that he has closed various bank accounts. He also claimed he was willing to produce various bank statements, credit card statements, proof of rental income and rental agreements, and tax returns. However he has not produce any of these documents.
  2. When asked about various transactions, he said he had forgotten them.
  3. From 9 January 2020 to the present hearing, the Husband has not filed a Perfected Answer.
  4. The Wife in oral testimony at the committal hearing testified that the Husband told her in November 2019 he deliberately asked for extension of time without any intention to file an Answer, and he does not fear imprisonment as a consequence, which he estimates would only be of 7-14 days. The Husband did not deny he said this.

The Husband’s testimony

  1. The Husband insisted he thought this was a hearing for maintenance. He also gave evidence in general claiming ignorance of court process; ignorance of the orders made; coronavirus; court closures; possible dementia etc. He said he is willing to produce the statements if he was asked to do so now.
  2. He also blamed his previous solicitors who advised him he did not have to file the Answer.

The law

  1. In Kao Lee & Yip v Donald Koo (2009) 12 HKCFAR 830 the CFA broadly laid down a 3-stage test:
  • The Court must ascertain the scope and effect of the relevant order;
  • Then the Court must decide whether the alleged contemnor has complied with the order so ascertained;
  • Lastly the Court must consider whether the non-compliance was accompanied with the necessary mens rea to constitute contempt of court.
  1. As Au-Yeung J said in Koo Ming Kown v Chan Chi Mong, Hopkins [2020] HKCFI 2827, §16, it is not necessary to prove the alleged contemnor directly intended to disobey the relevant order. It is only necessary to prove that: (a) he knew of the facts which are said to make his act or omission a contempt; and (b) such act or omission was not accidental.

Discussion

  1. Both the September Order and the November Order were made when the Husband was legally represented. The time fixed for their compliance was long before the coronavirus pandemic.
  2. The Husband must have realised the Answer he filed was inadequate, as the January Order required him to provide the information and documents sought in the Wife’s Questionnaire.
  3. Both the January Order and the Summons for committal were in clear terms. The Summons asked for the Husband to be committed for failure to comply with the January Order which required him to file a Perfected Answer within 42 days (ie 20 February 2020).
  4. The Husband was able to give clear answers to the Court in the previous directions hearings. He knew what the Wife is seeking, and he never denied knowing committal is sought for his failure to comply with the orders to file a Perfected Answer.
  5. The various reasons given by the Husband in non-compliance with the orders were a pack of lies without any factual basis. The Husband was evasive in his oral testimony.
  6. The Husband clearly knew he was not complying with the court orders and such non-compliance was not incidental but deliberate. The Court finds the Wife has proven her claim beyond reasonable doubt.

Sentencing

  1. Relying on the guidance of Au-Yeung J in Koo Ming Kown [2020] HKCFI 3128, §4 (summarised):
    • The starting point is that civil contempt is a serious matter. The Court’s prime consideration must be to demonstrate to all litigants and not just the contemnor the importance of complying with court orders;
    • The object of the sentence is to punish conduct in defiance with court orders, and serve a coercive function by holding out the threat of future punishment as means to secure the protection of the order;
    • There is no maximum sentence for contempt imposed by statute;
    • Imprisonment should be seen as a sanction of last resort. Any imprisonment should be as short as possible consistent with the circumstances of the case.
    • The Court may impose a suspended sentence in its absolute discretion on such terms as it thinks fit, but would be difficult to do so if nothing remains to be done to comply with the order;
    • The Court must consider aggravating and mitigating factors as well as acts to could purge the contempt;
    • Relevant factors include:
      • The nature of the order and the extent of the breach;
      • Whether the contempt was intentional or otherwise;
      • Whether the applicant suffered prejudice from the contempt and whether such prejudice can be remedied;
      • Whether the contemnor appreciate the seriousness of his deliberate breach; and
      • Whether the contemnor has co-operated.
  1. It has been a long time since 2018 when the Parties exchanged Form E. The delay has caused the Wife pressure as well as wasted time and costs. The Wife has yet to obtain the required information.
  2. The only mitigating factor is the Husband’s advanced age, but the Husband was clear in his speech and thinking in the witness box.
  3. The Court has considered suspended sentence, but the Husband’s assertion that he will produce his bank statements is not believable and in any event too late. The Court does not believe the Husband will do so, and believes the Husband has no remorse for his contempt. Immediate imprisonment is the only option.

Order

  1. The Husband is committed to prison for a period of 10 weeks, with costs be to the Wife on a nisi basis to be made absolute within 14 days unless either party seeks to vary.

Please read the judgment (in Chinese) at this link.


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