CKC v. SHTH

FCMP 262 / 2015

[2024] HKFC 180

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT MISCELLANEOUS PROCEEDINGS

NO. 262 OF 2015

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DECISION
(Committal - Sentencing)

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A.  Introduction

1.  This case is sad and disturbing, especially to those who care about the well-being and protection of the Minor. In defiance of two court orders, the Respondent Mother (“Mother”) went hiding with the Minor for 8 years, depriving the Minor of formal education and a psychological environment for her healthy development since the age of 4.

2.  On 3 May 2024, I adjourned the hearing of Mother’s mitigation on the Committal Order made on 15 January 2016 to today after her absence on 5 previous occasions since September 2023, and directed that the court will proceed to deal with sentencing in this hearing even if Mother continues to be absent.  The background and reasons are set out in my decision dated 3 May 2024 (“Adjournment Decision”)[1]. For ease of reference, I adopt the same abbreviations used in the Adjournment Decision unless otherwise stated herein.

3.  Mother is again absent today. About 30 minutes before the hearing, she lodged or caused to lodge into the Registry a document of about 30 pages titled “請假信” (“Document”). The Document referred to annexes but these annexes are not attached to the Document.

4.  In the beginning of the Document, there was the sentence similar to the one in previous letters[2]: “由於近日遭受連番人權迫害和思念愛女心痛泣淚之故，血壓心跳極不穩定並勞傷成病頗重，身體極差，未能出席今天的聆訊.” There was no medical certificate adduced nor diagnosis giving the reason for her inability to attend the hearing.  I do not see any reason to further adjourn this hearing.

B.  The Background and Events leading to the Committal Order

5.  The background of the parties and the events leading to the Committal Order can be found in the Judgment of DDJ A. Yim (as she then was) dated 15 January 2016. 

6.  In summary, the Applicant father (“Father”) and Mother met each other in a New Year Eve party in December 2009 when they were aged 39 and 34 respectively. Both parties were gainfully employed at that time. They soon developed an intimate relationship but they did not get married. Mother found herself pregnant in February 2010.  They decided to raise their child together. Mother moved into Father’s home in around March 2010. The Minor was born in December 2010.

7.  Their relationship did not last long. They had frequent domestic disputes which had escalated to physical force, and finally the parties resorted to the police for assistance.

8.  Father first moved out temporarily in August 2011. Mother then decided to separate with Father. She moved into a rented flat with the Minor in September 2011, and employed a domestic helper to take care of the Minor.

9.  Initially, Father was able to have access to the Minor every 3 to 4 weeks in the presence of Mother. In around mid-2012, Mother refused Father’s access to the Minor. In between January 2013 to July 2013, Father managed to have sporadic access to the Minor with the assistance of the domestic helper and the maternal grandmother.  When Mother discovered the sporadic access in July 2013, she became very angry, stopped the access and ceased contact with the maternal grandmother.

10.  Father took out an Originating Summons in August 2013 seeking defined access and a non-removal order. 

11.  With the assistance of social welfare officer, two accesses with the Minor were arranged on 26 November 2013 and 6 December 2013 before the first social investigation report was prepared.  The access on 6 December 2013 was Father’s last access to the Minor.  That access took place in a park.  The Minor was accompanied by her maternal aunt. The Minor was observed to have played joyfully with Father.

12.  At the hearing on 19 December 2013, DDJ A. Yim accepted the recommendation in the social investigation report and granted interim defined access to Father.

13.  Mother sought leave to appeal against the 19 December 2013 order and asked for a stay of execution of the order.  Her application was dismissed with costs in February 2014.

14.  Mother refused to have interview with the Social Welfare Officers and continued to deny Father’s access to the Child.

15.  On 15 January 2014, Mother’s solicitor took out a Summons applying for leave to cease to act for Mother.  The Summons was opposed. On 28 January 2014, the court refused to grant the leave.  Two days later, the solicitors took out another cease to act application and successfully obtained leave to cease acting for Mother.

16.  Mother and Father were present at the hearing on 9 April 2014 when the case was set down for trial.  Father was granted interim defined access to the Child (“April Order”). Penal notice was endorsed. The court had made clear to Mother that any act of alienation would put her care and control of the Minor at risk. The Official Solicitor was requested to act for the Minor. 

17.  Mother continued her refusal to have contact with the officers and her denial of Father’s access to the Minor.

18.  On 17 June 2014, Father took out a Summons seeking sole care and control of the Minor. Mother was absent from the hearings. Upon various undertakings given by Father, the court made an order on 7 August 2014 (“August Order”) under which Father was granted the custody, care and control of the Minor and Mother has weekly defined supervised access, Mother was required to hand over the Minor to Father on or before 1 September 2014 in the presence of the social welfare officer. Penal notice was endorsed.

19.  Mother had applied and was provided with the audio recordings of the above hearings. She then took out two summonses for leave to appeal and a stay of execution of the August Order. She did not turn up at the hearings fixed for these summonses. These summonses were dismissed in September and December 2014 respectively.

20.  Mother did not comply with the April Order nor the August Order. She went hiding with the Minor and did not appear in these proceedings. A warrant of arrest was issued on 26 September 2014.

21.  Father applied for leave to issue committal proceedings in 2014. Father made a further application for committal proceedings against Mother in October 2015, which was supported by the Official Solicitor.

22.  DDJ A. Yim found that Mother was fully aware of the April Order and August Order. She had been in breach of these orders wilfully.  She attempted to leave Hong Kong with the Minor on 1 September 2014 without success.  She removed the Minor from her usual kindergarten and ceased contact with her extended family members.  Father, Mother’s extended family members, the Official Solicitor (acting for the Minor) and the social welfare officers, all failed to get in touch with Mother and the Minor. 

23.  DDJ A. Yim made the Committal Order, issued a warrant of arrest and committal against Mother. The question of penalty was adjourned.

24.  Mother and the Minor could not be found for 8 years until 28 October 2022 when they were finally located by the police.

C.  Development after Mother and the Minor were located in October 2022

25.  Mother was brought before this court after she was found in October 2022. An urgent hearing was held. Father’s legal representative and the Official Solicitor also appeared at the hearing.  This court was informed that the Minor was sent to public hospital for physical and psychological examination. 

26.  After hearing the parties, this court adjourned the sentencing of the Committal Order after the welfare of the Minor was dealt with and directed that a social investigation report on the condition of the Minor be prepared and lodged into the court.

27.  According to the social investigation report dated 2 May 2023 (“SIR”):

(1)  The Minor was found not having received formal education since 4 years old.  She was brought up with the absence of psychological environment to facilitate her healthy development. Physically, she was diagnosed to suffer from severe vitamin D deficiency and deformity in her right leg (Rickets) due to insufficient sunlight exposure.

(2)  A Multi-disciplinary Case Conference (“MDCC”) on Protection of Child with Suspected Maltreatment was held on 2 December 2022. It was concluded that the Minor was a victim of child neglect of Mother who was an abuser.

(3)  Mother was considered not to be an appropriate carer.

(4)  The Minor was 12 years old at the time of the report. She lost contact with Father for about 9 years. She strongly resisted Father and refused to meet him.

(5)  An application for a Care or Protection Order was made on 13 December 2022, the Director of Social Welfare (“DSW”) was appointed the legal guardian of the Minor in accordance with Section 34(1)(a) of the Protection of Children and Juveniles Ordinance, Cap. 213.  The Child was made Ward of the DSW and was placed at Tuen Mun Children and Juvenile Home (“TMCJH”) pending long term residential placement.

(6)  The police was seeking legal advice on the case against Mother.

(7)  The Minor was uncooperative in TMCJH.  After listening to the views of Mother, the Minor started to become confrontational towards the medical officers and social welfare officers. With counselling by the social welfare officer in TMCJH, the Minor settled gradually. She started to follow the rules, showed interest in regular learning and interaction with other people.

(8)  The Minor initially accepted the advice of an orthopaedist and agreed to have a minimal invasion surgery to cure the deformity of her leg. After the Minor has heard Mother’s views, she changed her mind and refused to do the surgery.  According to medical opinion, if the Minor does not have the surgery, she might miss the chance to have an optimal recovery.

(9)  Mother has been very uncooperative during the social investigation.  She put the blame on Father for causing the current situation of the Minor.

(10)  Father was shocked when he knew that the Minor was kept away from school and the society for the past 8 years.  He was sad seeing the Minor’s strong resistance against him and her misunderstanding on him.  In view of the Minor’s strong resistance, he decided not to pursue with his application for custody, care and control of the Minor.

(11)  It was recommended that Father and Mother have reasonable access to the Minor as arranged and coordinated by the social welfare officer handling the case.

28.  At the hearing on 29 June 2023, this court:

(1)  accepted the recommendation in the SIR and ordered that Father and Mother have the reasonable access to the Minor as arranged and coordinated by the social welfare officer handling the case;

(2)  gave directions for filing submission and adjourned the hearing on Mother’s contempt of court to 26 September 2023;

(3)  repeatedly reminded Mother of the seriousness of the proceedings and suggested her to seek independent legal advice.

29.  Mother was present at the hearing on 29 June 2023 when I directed all parties to file submissions on sentencing in the contempt proceedings. The hearing was adjourned to 26 September 2023.

30.  Father and the Official Solicitor have lodged their written submissions pursuant to the direction of the court.  Mother has not.

31.  I had adjourned 6 previous hearings. The details of these adjourned hearings are set out in paragraphs 4 to 20 of the Adjournment Decision. In short, Mother was absent from 5 of these hearings.

32.  Generous indulgence and more than enough warnings have been given to Mother. I shall proceed to consider the sentence.

D.  Decision

Relevant Legal Principles

33.  There are a wealth of legal authorities acknowledging that court orders are made to be obeyed and a contempt of court by wilful disobedience of court order is a serious matter: RACP Pharmaceutical Holdings Ltd v Li Xiaobo[3]; Kao Lee & Yip v Donald Koo Hoi Yan[4]; Arboit v Koo Siu Ying (No 2)[5]; Law Lai Lan v Tamang Prem Chandr[6].

34.  The prime consideration in sentencing contempt is to signal the importance of demonstrating to all litigants that orders of the court are to be obeyed. It serves dual functions, coercive and punitive. The court shall strike a balance between these two objectives, viz: (1) to punish the conduct in defiance of the court’s order and (2) to serve a coercive function by holding out the threat of future punishment as a means of securing the protection which the order was primarily there to do: Law Lai Lan v Tamang Prem Chandr; Willwin Development (Asia) Company Limited v Wei Ying and others[7].

35.  As Jackson LJ pointed out in JSC BTA Bank v Solodchenko (No. 2)[8], the punishment on the contemnor serves the public interest of upholding the administration of justice:

“The sentence for contempt performs a number of functions. First, it upholds the authority of the court by punishing the contemnor and deterring others. Such punishment has nothing to do with the dignity of the court and everything to do with the public interest that court orders should be obeyed. Secondly, in some instances, it provides an incentive for belated compliance, because the contemnor may seek a reduction or discharge of sentence if he subsequently purges his contempt by complying with the court order in question.”

36.  The court has a wide discretion under common law and the statute (Order 52 of the Rules of the High Court and the Rules of the District Court) to decide the sanction on a contempt of court ranges from a fine to a term of imprisonment (including suspended sentence): Secretary for Justice v. Chin Po Fun[9], Morris v Crown Office[10].

37.  The legal principles on sentencing for contempt of court have been summarised in Arboit v Koo Siu Ying (No 2):

“2. The starting-point is to acknowledge that contempt of civil court orders is a serious matter and that court orders are made to be obeyed. A prime consideration of the court in sentencing contempt is to “signal importance of demonstrating to litigants that the orders of these courts are to be obeyed”. By “litigants”, it is clearly referring to litigants in general and not just the contemnor himself. See Questnet Limited v Wilfred Royce Lane, HCA 1475/2006, Chu J (as she then was), 23 June 2008 (on sentence).

3. The object of the sentence is both to punish conduct in defiance of the court’s order and to serve a coercive function by holding out the threat of future punishment as a means of securing the protection which the order was primarily there to do: Crystal Mews Ltd v Metterick & ors [2006] EWHC 3087, §8, Collins J; re Barrell Enterprises [1973] 1 WLR 19, at 27C-D, English CA. The court has to balance the 2 objects.

4. The sentence for contempt may range from a fine to a term of imprisonment. The UK Contempt of Court Act 1981 imposes a maximum term of 2 years’ imprisonment but Hong Kong does not have that statutory limit.

5. Imprisonment should be regarded as a sanction of the last resort. Any custodial sentence should be as short as possible consistent with the circumstances of the case. Willwin Development (Asia) Co Ltd v Wei Xing, HCMP 2946/2014 (unreported, 16 November 2015), B Chu J, §4(f); CMA CGM v Ng Chip Choi Maurice, HCMP 2988/2014, 12 March 2015, Au-Yeung J,§24(1).

6. The court may suspend a term of imprisonment for such period or on such terms as the court deems fit: CMA CGM v Ng Chip Choi Maurice, §24(2); Order 52, rule 7. This is an “absolute discretion” but it would be difficult to think of circumstances where a suspended order should be made when nothing further remains to be done to comply with the order: Hong Kong Civil Procedure 2016, Vol 1, §52/7/2.

7. The court will consider if there are:

(a) Aggravating factors: Hao Xiaoying v Wong Yiu Lam William & Ors, HCMP 1968/2014, 2 March 2015, Anthony Chan J;

(b) Mitigating factors: Ge Transportation (Shenyang) Co Ltd v Lu Jinxiang, HCMP 1792/2013 (unreported, 22 January 2014) (DHCJ Marlene Ng); and

(c) Acts to purge the contempt, ie acts to atone for a contempt, eradicate it or cleanse it of its previous ill-effect which, in the case of a mandatory order, may be fulfilled if the contemnor thereupon does the act or causes it to be done: CJ v Flintshire BC [2010] EWCA Civ 393, at §6.

8. Relevant factors (which are not exhaustive) include:

(a) The nature of the order and breach in question, and the extent of the breach: Questnet Limited v Wilfred Royce Lane.

(b) Whether the contempt was contumacious or unintentional, the reasons, motives and state of mind: Hong Kong Civil Procedure 2016, Vol 1, §52/9/2.

(c) Whether the claimant has been prejudiced by virtue of the contempt and whether the prejudice is capable of remedy: Crystal Mews Ltd v Metterick, §13.

(d) Whether the contemnor appreciates the seriousness of the deliberate breach: Crystal Mews Ltd v Metterick, §13.

(e) Whether the contemnor has cooperated: Crystal Mews Ltd v Metterick, §13.

……

10.  As circumstances of contempt vary greatly, there is little mileage to be gained from the citation of other cases: AXA China Region Insurance Co Ltd & anor v Li Yu Ping Ellen [2002] 3 HKC 339, 362 H-I, Stock JA.”

38.  The Official Solicitor has referred the court to the following English cases on contempt of court in child abduction cases. 

(1)  In Re W (Abduction: Committal)[11], a father abducted his 2 years old child during a week of planned contact and took her to Pakistan. The father left the child in the care of his brother and on his return to England was arrested. The mother issued proceedings which resulted in the child being made a ward of the court and the father being ordered to immediately disclose the exact location of the child and cause her to be returned to England. The father failed to comply with the order and has repeatedly refused to reveal the whereabouts of the child. The father was found in contempt and was committed to prison for the maximum sentence of 2 years.

(2)  In Evelyn Rojas Sanchez v Pawel Oboz, Jolanta Oboz[12], there were breaches of two orders by which the father and the paternal grandmother were required to return the child (aged 3) to the jurisdiction from Poland, where they had unlawfully retained her following a holiday. They failed to return the child despite they were given opportunity to do so. A sentence of 12 months imprisonment was imposed to reflect the intrinsic gravity of the father’s breaches and marks the disapproval of the court.

(3)  In El Zubaidy v Borg[13], two children were abducted by the father to Libya. In January 2017, a tipstaff passport orders and a return order were made against the father, which he failed to comply with.  He was subsequently sentenced on four occasions to a total of 5 years’ imprisonment for contempt of court for breaches of successive orders in relation to the children, though he was released after serving half of the nominal sentence. In August 2022, a further order was made requiring the father to return the children. The father was again in breach and was sentenced to 12 months’ imprisonment.

39.  In considering these English cases, I bear in mind the following differences from the present context:

(1)  The maximum sentence in England is 2 years. There is no equivalent legislation in Hong Kong governing the maximum sentence for imprisonment in this type of civil contempt of court.

(2)  The respondents in these English cases, acted in breach of the orders, had not returned the children and the children remained missing whereas in the present case, the Minor was located.

40.  The Applicant cited, for references, Hong Kong cases where the respective respondents were committed to a term of 4 to 8 weeks imprisonment (depending on the gravity) for deliberate failure to comply with court orders on the filing of Form E and/or answer to questionnaires and/or payment of maintenance:邱及李[14]，LYY v WYW[15], 蘇及陳[16]; 葉及陳[17]；劉及徐[18].

41.  I bear in mind that the subject matter of the above Hong Kong cases relates to financial matters and this case is not.

42.  With the above cases and principles in mind, I turn to the circumstances of this case.

Nature and Extent of the Breach

43.  Access to a parent is the basic right of the child but not the right of the parents. The purpose of having access to a parent is to enable the child to keep in contact with him or her which is essential to the child’s emotional and psychological growth in the long term: H v N[19].

44.  As acknowledged by Hartmann JA (as he then was) in PD v KWW[20], the long-term best interests of a child are invariably best protected if, despite the breakdown of the marital union, both parents are able to continue to play an equal role in making important decisions that will determine the child’s upbringing.

45.  Despite the discord between the parents, a child should have the care and guidance of both parents. 

46.  Mother has no right to deprive the Minor of her basic right to see and meet Father. It was because of Mother’s breach, the Minor was forced to live her childhood in hiding for 8 years[21]. Since Mother withdrew the Minor from kindergarten in 2014, the Minor could not receive any formal education. Mother cut off almost all the social ties of the Minor, including the contact with Mother’s extended family members. This caused significant physical and psychological harm to the Minor. 

The contempt was contumacious and intentional

47.  Mother’s contempt was contumacious and intentional. Mother has demonstrated no intention to comply with the April Order and the August Order and has hid the Minor deliberately.

48.  After Mother and the Minor were located by the police, Mother remained to be very uncooperative, sometimes obstructive. She showed no contrition for her conduct.  Even worse is her continual influence over the Minor, causing the Minor’s strong resistance against Father and others. The Minor thought that Father is the culprit who caused her suffering in the past 8 years, including the inability to attend school in the past years and her being placed in residential care. Sadly, Mother is the author of her suffering.

Prejudice Against Father and the Minor

49.  The prejudice and harm caused by Mother to Father and the Minor are grave and are very difficult (if not impossible) to remedy. 

50.  The contempt cannot be purged even if Mother is now prepared to (which she is not) comply with the court order by handing over the Minor to the care and control of Father. 

51.  According to the social welfare report dated 9 December 2013[22], the Minor was happy when playing with Father in the park on 6 December 2013.  The Minor conversed with Father, held Father’s hands, hugged him, and handed him tissue papers to wipe his hands.

52.  Mother has effectively destroyed the relationship between Father and the Minor. She cut off all the contact between Father and the Minor in the past eight years, and led the Minor to believe that Father is the culprit.

53.  The Minor spent her childhood in isolation from the society in the past 8 years.  The gravity of the psychological and physical damages done by Mother to the Minor cannot be understated.

Aggravating Factors

54.  During the MDCC investigation, Mother was found to be very uncooperative.  She refused to give consent for the Minor to be prescribed with vitamin D for treating her Rickets.  She influenced (if not instructed) the Minor to be uncooperative with the medical staffs.  Since then, the Minor has been making troubles in the residential ward.  It is troubling to note that because of Mother’s influence over the Minor, the Minor lost the chance to cure her deformity in her leg despite strong advice by the doctor that it was the prime time for attaining optimal result.

55.  DSW is of the view that Mother failed to reflect on her uncooperative attitude and the long-term adverse impact on the Minor’s psychological and physical conditions as a result of her abuse.  Mother put the blame on Father for initiating these proceedings.

56.  She shows no regret nor remorse.  She remains to be uncooperative and at times disruptive in advancing the welfare of the Minor.

57.  Mother caused the delay of the present proceedings. She was fully aware of the directions given by this court. She was repeatedly reminded of the serious consequences of the proceedings and she shall seek independent legal advice.  However, she chose to apply for legal aid shortly before the hearing and take advantage of the statutory stay. She was absent from the subsequent 5 court hearings causing unnecessary delay to this matter.

Mitigating Factors

58.  Mother has not made any submissions on mitigation despite she had many chances to do so.  At previous hearings attended by her, Mother attempted to justify her breach by alleging that Father is a dangerous person who suffered from bipolar disorder. She said that Father was prescribed with medications for psychiatric treatment, and was involved in triad society with criminal record. In the Document, Mother repeated similar allegations. Father denied these allegations.

59.  According to the court’s records, these allegations have been raised by Mother and considered by the court before the August Order was made. 

(1)  A medical report prepared by Dr Wong, a psychiatrist, in May 2014 was filed with the court on 23 May 2014 by Father. The report concluded that Father did not display any psychiatric symptoms and could not be diagnosed as suffering from a psychiatric illness.  His speech was found to be coherent and relevant.  No thought disorder was found.  In 2006, he had insomnia and mood problem due to the difficult situation he was in. It was opined that this was a normal emotional reaction and might be some transitional mild emotion issue, such as adjustment disorder.

(2)  The above medical report also recorded the background provided by Father to Dr Wong, including that he was convicted of an offence in breach of the Prevention of Bribery Ordinance while he was preparing for a public listing of his advertising company in 2005. He was put to jail. After his release and in about 2009, he started the business of property mortgage together with his brother.  These appeared to have happened before he met Mother in December 2009.

(3)  The Social Investigation Report dated 9 December 2013 stated that Father was a businessman, had incorporated his own advertising company. He had subsequently engaged in a business of property mortgage, and acted as consultant for car sales.

60.  These allegations about Father’s background had been considered before the making of the August Order and the Committal Order. There was no appeal against the August Order and the Committal Order. In any event, these are not reasons for Mother to take the matter in her own hands in breach of the court orders.  These are not reasons for her cutting off the Minor’s ties with Father, nor her denying the Minor from contacting her father and an environment for healthy development of her well-being. There was also no evidence that Father had caused harm to the Minor.

61.  The Document stated for the first time many assertions and accusations, including events happened after the Minor was located. This is obviously not the right way to submit her mitigation.  Mother had not indicated that she intended to use the content in the Document as her mitigation.

62.  Out of abundance of indulgence to Mother and in all fairness, I have considered the Document despite Mother has chosen to lodge it less than 30 minutes before today’s hearing and does not come forth to stand by the information in the Document.  The Document contains irrelevant materials, for example, it refers to an intended movie based on this case. I refrain from commenting on this save to note that some of the contents do not accord with the court records and some of the matters stated are unknown to this court.  The alleged events happened after the Minor was located do not justify or mitigate the wrongs done by Mother in her previous breaches of the two orders.

63.  It appears that Mother has failed to see that today’s hearing was a result of her deliberate defiance of court orders that unfortunately caused the plight of the Minor.

Conclusion

64.  Mother was guilty of a serious contempt of court for breach of the April Order and the August Order for a long duration of 8 years. She only stopped hiding the Minor upon her arrest by the police on 28 October 2022.  Her wilful obstinacy and defiance had tragically caused egregious harm to the Minor and Father.  Mother showed no reflection of her conduct.  Her persistent obstruction and uncooperativeness, worse still, her influence over the Minor to adopt an obstructive attitude, are exceedingly aggravating. I do not see any remorse nor matters that mitigate her guilt. The sanction shall proportionately reflect the court’s disapproval of Mother’s conduct and serves as an effective deterrence for a breach of court order.

65.  I am satisfied that an immediate sentence of imprisonment is justified on the facts of this case.

66.  On the decision of the length of imprisonment, I have carefully weighed the matters before me.  Apart from the gravity of the breach, the harm caused, the lack of remorse and the presence of aggravating factors, I also bear in mind the peculiar features in this case, especially the needs of the Minor and the possible impact on her if she cannot have contact with Mother for a substantial period of time. The Minor was not able to establish a relationship with her Father at least at this stage. Although Mother is the author of the Minor’s tribulation, a substantial period of imprisonment may add to the Minor’s suffering. The police is investigating the case of possible child abuse by Mother. If there is a criminal prosecution, Mother will serve her sentence for abusing the Minor. I have not lost sight of the possible issues on totality and proportionality. Balancing all the circumstances, I order that Mother be committed to prison for an immediate term of 10 weeks.  A warrant of arrest be issued.

E.  Costs

67.  The usual cost order in a successful committal proceeding is to follow the event on an indemnity basis.

68.  By reasons of the degree of gravity and culpability of Mother’s breach, her uncooperative conduct and continual delay in the present proceedings, there is no reason to depart from the usual order. I order Mother to pay the costs of Father and the Official Solicitor on an indemnity basis, at an amount to be taxed if not agreed.  The above costs order is made on a nisi basis to become absolute after 14 days.

FCMP 262 / 2015

[2024] HKFC 95

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT MISCELLANEOUS PROCEEDINGS

NO. 262 OF 2015

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BETWEEN

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DECISION
(Committal – Respondent’s absence)

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1.  Today is the 6^th hearing[1] for sentencing the contempt of court found by DDJ A. Yim (as she then was) on 15 January 2016 (“Committal Order”) against the Respondent mother (“Respondent”) for her breach of two court orders made on 9 April 2014 and 7 August 2014 regarding, inter alia, the custody, care and control of the Minor and an order that the Respondent do hand over the Minor to the Applicant father (“Applicant”). The Respondent was absent in 5 of the hearings, including today.

2.  The events leading to the Committal Order can be found in the Judgment of DDJ A. Yim[2], which was made when the Respondent went hiding with the Minor. The Respondent and the Minor were located by the police on 28 October 2022.

3.  The Respondent was present at the hearing on 29 June 2023 when I directed all parties to file submissions on the contempt proceedings and adjourned the hearing to 26 September 2023.

4.  On the day before the due date for her submissions, a letter from the Respondent was lodged into the court (without copy to the other parties) asking for an extension of 4 weeks to lodge her written submissions. The Respondent was directed to take out application for time extension with notice to the other parties and was reminded not to unilaterally correspond with the court. The court reiterated the warning given at the June hearing that the nature of current proceedings is serious and may give rise to significant consequence, the Respondent should seek independent legal advice. By then, the Respondent should have noted the Applicant and the Official Solicitor’s submissions that immediate imprisonment is the appropriate sentence.

5.  The Respondent has not taken out any application nor lodged any submissions.

6.  On 25 September 2023, the day before the scheduled hearing for sentencing, the court received a Memorandum of Notification of Legal Aid Application made by the Respondent. At the hearing on 26 September 2023, the Respondent informed the court that she had consulted various lawyers but she was not satisfied with their advices, therefore she applied for legal aid.

7.  As a result of her legal aid application, albeit made very late, the proceedings were stayed until 6 November 2023 pursuant to section 15 of the Legal Aid Ordinance and rule 7A of the Legal Aid Regulations.

8.  The hearing was adjourned to 16 November 2023. The Respondent was reminded again that she should seek independent legal advice whether on legal aid or not.

9.  The court was subsequently notified by the Director of Legal Aid that the Respondent’s application for legal aid was refused.

10.  The Respondent was absent on 16 November 2023. A warrant of arrest was issued.

11.  On 21 November 2023, the Respondent took out a Summons for discharge of the warrant of arrest. She filed an affirmation stating that she arrived at the ground floor of the court building at 10:20 am on 16 November 2023. While she was on the way to the Family Court, she fainted and was sent to hospital by ambulance. She was admitted to the hospital for observation. She produced a medical certificate stating that sick leave from 16 to 17 November 2023 was recommended for her “medical condition”.

12.  The Respondent’s Summons for the discharge of the warrant of arrest was fixed to be heard on the same day of the adjourned hearing of the committal proceedings, i.e. 5 December 2023.

13.  In the late afternoon of 4 December 2023, a letter titled “請假信” was lodged into the court stating that the Respondent was sick and could not attend the hearing on 5 December 2023. She asked the court to adjourn the hearing. A medical certificate from a doctor of Priority Healthcare Medical Centre dated 4 December 2023 was attached. The Respondent was diagnosed to have suffered from “hypertension and dizziness”. Three days’ sick leave from 4 to 6 December 2023 was recommended.

14.  The hearing was further adjourned to 21 December 2023 or an earlier day when the Respondent is brought to the court under the warrant of arrest.

15.  The Respondent continued to be absent from the hearing on 21 December 2023. A letter titled “請假信” dated 21 December 2023, which was substantially the same as the letter dated 4 December 2023, was lodged into the court. A sick leave certificate issued by a registered Chinese medical practitioner was attached. The diagnosis was “dizziness”. Sick leave for two days from 20 to 21 December 2023 was recommended. This court adjourned the hearing to 1 February 2024.

16.  In the meantime, the court was informed that the bailiff had attempted to execute the warrant of arrest, but not successful.

17.  The Respondent did not appear at the hearing on 1 February 2024. The Applicant applied for the hearing to be continued in her absence. I directed all parties to lodge submissions on the application. The hearing was adjourned to today, 3 May 2024.

18.  After the hearing, the court received a letter titled “請假信” dated 1 February 2024 stating that the Respondent could not attend the hearing because her blood pressure and heartbeat were not stable. She suffered from serious illness and her health condition was poor (由於近日遭受連番迫害和思念愛女心痛泣淚之故，血壓心跳很不穩定並勞傷成病頗重，身體極差，未能出席今天的聆訊). She has not produced any medical evidence. She also made allegations against the Applicant and the Social Welfare officers on matters relating to the Minor. I directed the parties to make submissions on the aforesaid letter.

19.  The Respondent was absent today.

20.  A letter titled “請假信” was lodged into the Registry of the Family Court 15 minutes before the hearing. There is the same sentence about her poor health as the one in the 1 February 2024 letter. No medical certificate was produced. The Respondent repeated allegations against the Applicant and the Social Welfare officers.

21.  The Applicant submitted, relying on Secretary for Justice v Cheung Chi Ho (see below), that a “long stop” day be set for the sentencing. The Official Solicitor did not object.

Legal Principles

22.  This court has the discretion to commence or continue with a trial in the absence of a defendant/respondent. The discretion has to be exercised with great care, and only in rare and exceptional cases.

23.  In HKSAR v Singh Gursewak, CACC 399/2013, unreported, 11 December 2014, the Court of Appeal has summarised the principles as follows:

“30. There is no dispute that a judge has a discretion to commence and/or continue with a trial in the absence of a defendant. In HKSAR v Kwan Wai Keung & Others, this Court approved expressly the principles endorsed by Lord Bingham in his speech in R v Jones (Anthony) as applicable to the exercise of the judicial discretion to commence or continue with a trial in the absence of a defendant. Save in respect of the relevance of the issue of the seriousness of the offence, the factors which Lord Bingham endorsed were those stipulated in the judgment of the Court of Appeal of England and Wales delivered by Rose J, as he was then, in R v Heyward, namely :

“ 1. A defendant has, in general, a right to be present at his trial and a right to be legally represented.

2． Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him. They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him.

3. The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives.

4. That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.

5. In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular :

(i) the nature and circumstances of the defendant’s behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;

(ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings;

(iii) the likely length of such an adjournment;

(iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation;

(v) whether an absent defendant’s legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence;

(vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;

(vii) the risk of the jury reaching an improper conclusion about the absence of the defendant;

(viii) the seriousness of the offence, which affects defendant, victim and public;

(ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;

(x) the effect of delay on the memories of witnesses;

(xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.”

6. If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits. In summing up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.” [Italics added.]”

24.  In R v Jones [2003] 1 AC 1, Lord Bingham referred to the consideration of practical justice and expressed the opinion that[3]:

“one who voluntarily chooses not to exercise a right cannot be heard to complain that he has lost the benefits which he might have expected to enjoy had he exercised it.”

25.  In Secretary for Justice v Cheung Chi Ho[2023] HKCFI 2104, Coleman J set a “long stop” day to deal with sentencing after he found the defendant liable for civil contempt in the absence of the defendant:

“5. Having carefully considered the materials, I found the Defendant liable for the contempt.

6. However, I was not prepared to go on to deal with the sentencing or penalty phase of the hearing, without at least giving the Defendant one further chance to participate in these proceedings.

7. Instead, I ordered a warrant for his arrest, so that the Defendant might be brought back before the Court. But it also seemed to me to be appropriate to set a ‘long stop’ date, so that the matter would not be left open or in abeyance pending the effecting of the warrant of arrest. I said that I would consider on that date whether it would then be appropriate to go on to deal with the question of penalty even if the Defendant continues to be absent.

8. The date I set was 14 August 2023, i.e. today. I am again satisfied that the Defendant has been served in accordance with my order for substituted service. I also note that the finding of contempt garnered some media coverage, and may well have come to the attention of the Defendant or those persons in contact with him who might have informed him of it.

9. However, as already stated, the Defendant has continued to be absent. He is neither present nor represented in Court. Nor has there been any communication from him. In the circumstances identified below, this is perhaps not surprising.

10. Having considered matters, and where the Court clearly has jurisdiction to proceed to sentencing in the absence of the defendant where circumstances so justify, it seems to me that I should no longer put off dealing with the question of an appropriate sentence to impose for the Defendant’s contempt of Court, which I have found proved.

……

29. The Defendant has not appeared in, and has apparently refused to engage in, these proceedings. He has deliberately not only failed to admit liability for contempt, but he has also deliberately failed to offer any form of apology for his conduct. I find no remorse.

30. Indeed – contrary to offering any expression of remorse, contrition or apology – the Defendant appears to have deliberately jumped bail and absconded from the jurisdiction to seek to avoid liability (whether for the criminal offence or the present civil contempt).

31. I should add that no aspect of the delay in launching these proceedings – which I dealt with on the application for leave – seems to me to be of any great weight in the assessment of the appropriate sentence in this case, where the Defendant has simply absconded and refused to face the consequences of his actions.”

Decision

26.  The Committal Order was made in 2016. There is no appeal against the Committal Order. What remained to be determined is the sentence.

27.  I am satisfied that the Respondent has knowledge of the proceedings and all the adjourned hearings:

(1) She was present at the hearings on 29 June 2023 and 26 September 2023.

(2) She has written to the court in July 2023 seeking an extension of time to lodge submissions on the committal proceedings.

(3) She has made application to discharge the warrant of arrest in November 2023.

(4) She was served with the relevant court orders and the submissions of the Applicant and the Official Solicitor by email with hard copies collected by her nominated representative, Mr Yeung, at the office of the Official Solicitor.

(5) For each of the 5 hearings[4] when she was absent, including today, she lodged into the court letters or sick leave certificates. It was noted that one to three of her friends had attended these hearings in the public gallery. On some occasions, some of them intended to address the court from the public gallery.

28.  On 26 September 2023, this court adjourned the hearing due to the Respondent’s last minute application for legal aid (which was unsuccessful). The Respondent was then absent in the subsequent 5 hearings.

29.  It is not in the interest of administration of justice if this matter was left in abeyance pending the execution of the warrant of arrest. After the Committal order was made in 2016, the proceedings came to a halt for about 6 years since the Respondent went hiding with the Minor.

30.  As shown in the documents lodged by the Respondent on 1 February 2024 and today, allegations were made against the Applicant and the social welfare officers. Further delay may affect the memories of the relevant parties in regard to these matters which the Respondent took issue.

31.  Having carefully reviewed the evidence before me, I doubt the Respondent’s assertion that she was so ill on the day of each of these hearings to the extent that she was physically unable to attend. I note that:

(1) In respect of the last 2 hearings and today, the Respondent’s bare assertion that she was ill was not supported by any evidence.

(2) As shown in the medical certificates produced for the earlier hearings, she was diagnosed to have suffered from hypertension and/or dizziness. There is no evidence to show that her illness was severe to the extent of making her unable to attend the hearing at all after medical treatment.

(3) Her illness does not appear to be chronic. She consulted doctor on the day before the hearing, and only 2 to 3 days sick leave were recommended.

32.  Much indulgence has been given to the Respondent in the past 6 to 9 months. I am prepared to give the Respondent one last chance to participate in the proceedings.

33.  I adjourn the hearing to 24 September 2024 at which I will consider whether this court shall exercise the discretion to deal with sentencing even if the Respondent continues to be absent.

34.  If the Respondent needs to seek adjournment of the hearing for health reason, she has to produce cogent medical evidence for the court’s consideration by producing a medical report issued by a registered medical practitioner in Hong Kong certifying (1) the detail diagnosis of the Respondent’s illness; (2) that the Respondent is unable to attend the hearing on 24 September 2024 because of her illness; (3) the medical treatment prescribed to the Respondent; and (4) the likely time frame when the Respondent would recover and be able to attend the court hearing.

35.  At the risk of repetition, the Respondent is reminded to seek independent legal advice, if she has not yet done so, on this matter.

36.  [Submission on costs]

37.  This is a contempt proceedings. Today’s hearing is wasted due to the Respondent’s behaviour. I order that the Respondent do pay the Applicant’s and the Official Solicitor’s costs of today’s hearing on an indemnity basis, to be taxed if not agreed.

Mr. Edward Lau of Edward Lau Phoebe Ng Solicitors LLP for the Applicant.

The Respondent acting in person and is absent.

Ms. Eunice Ip of the Official Solicitor for the Interested Party.

FCMP262/ 2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 262 OF 2015

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Judgment
(Committal)

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Introduction

1. This is an application by the applicant father to commit the respondent mother for contempt in disobeying my Orders dated 9 April 2014 and 7 August 2014.  The Official Solicitor who represented the minor fully supported the father’s application.

2. The mother has gone underground with the minor since September 2014.  Personal service of the originating summons has been dispensed with; the service was substituted by placing a notice of advertisement in accordance to my order dated 23 November 2015.  The application was heard in the absence of the mother.

Background

3. The father (will be 46 years old in January 2016) was born and grown up in Hong Kong.  The mother (aged 40) was born in Hong Kong but migrated to America with her family in 1994, acquired her US citizenship in 2001 and relocated to Hong Kong in 2008.  The minor acquired her US citizenship after her mother in 2011. The mother had one marriage in US, she divorced in 2000 but there was no child within the wedlock.  The minor (aged 5) was the parties’ only child. 

4. The father and the mother met each other in a New Year Eve parties in December 2009, when they were aged 39 and 34 respectively. Both parties were gainfully employed.  Soon after they developed an intimate relationship.  The parties decided to raise their child together after the mother found herself pregnant in February 2010 and the mother moved into the father’s home around March 2010.  The minor was born in December 2010.  The parties took care of the minor with the assistance of domestic helper A. 

5. Their relationship did not last long, both found the other difficult to communicate.  Their domestic disputes became more and more frequent, escalating from verbal argument to physical force, and finally resorted to police assistance.   

6. The father first moved out temporary in August 2011, later the mother decided to separate with the father.  The mother had ceased working upon pregnancy and resumed working around July/August 2011.  The mother moved into a rented flat with the minor in September 2011 and employed domestic helper E to take care the minor.

7. Around early 2012, the father was able to arrange with the mother to have access to the minor in her presence every 3 to 4 weeks but the access was refused around mid-2012.  Later in between January 2013 and July 2013, the father managed to have sporadic access to the minor with the assistance of helper E (who left her employment by end of January 2013) and the maternal grandmother.  In July 2013 the mother discovered this sporadic access arrangement, she felt angry and stopped her contact with the maternal grandmother since then.

8. The father took out an originating summons in August 2013 applied for defined access and non-removal of the minor (FCMP188/2013). A non-removal order was made against the minor on 19 September 2013.  The matter was further adjourned to 19 December 2013 for a social investigation report (SIR) and interim access arrangement was to be made by the social investigation officer (SWO).  Time being the father and his wife were introduced to each other by their friends in 2013.

9. Two accesses (26 November 2013 and 6 December 2013) were arranged by the SWO before the first SIR dated 9 December 2013. The access on 6 December 2013 was the father’s last access to the minor, that access took place in a park, the minor was accompanied to there by her maternal aunt and she was observed to play joyfully with the father.  The first SIR recommended defined access on alternate Saturdays, starting from 4 hours and increased to 8 hours in 3 months time with 6 months supervision.

10. Since 19 December 2013 this matter was heard by this court.  During that hearing the father indicated that he accepted the defined access arrangement recommended in the first SIR, while the mother objected to the recommendation.  Having hearing to the parties, interim access in line with the recommendation was made and leave was given to the mother to take the minor out of Hong Kong in between 23 December 2013 and 4 January 2014.  Further directions for defined access related to the mother’s concern were made and the matter was further to 9 April 2014 for an up-dated SIR.

11. The mother issued two summonses dated 2 January 2014 returnable on 12 February 2014: one for leave to appeal and stay of execution of the interim access order dated 19 December 2013; and the other summons was for specific discovery.  

12. The mother’s solicitor took out a cease to act summons on 15 January 2014 returnable on 28 January 2014.  The mother objected her solicitor’s application.  After hearing submissions from both sides, the application was refused on 28 January 2014.  However another cease to act summons was filed two days later returnable on 11 February 2014, a declaration for cease to act was finally granted to the mother’s then solicitor.  The mother’s application for leave to appeal my interim access order was refused with costs.  Time being the father was denied any access to the minor.

13. The Social Welfare Department assigned another investigation officer to prepare the up-dated SIR.  The new SWO repeatedly invited the mother to attend interview but in vain, and because of the altitude of the mother, to avoid mistrust from the mother, the officer decided not to approach the minor’s teacher.  The officer only managed to contact the maternal grandmother, who has no contact to the mother and her last contact to the minor since July 2013 was via a phone call from the father during the November 2013 access arranged by the first SWO.  The new SWO did not have any information about the condition of the minor, and no recommendation was made.  Time being the father married to his wife in January 2014.

14. In view of the progress of the matter, on the 9 April 2014 hearing I set down the case for trial and requested the Official Solicitor to represent the minor.  The matter was adjourned to 20 June 2014 for pre- trial review and the trial was fixed on 30 July 2014 with 6 days reserved, an up-dated SIR was requested for the trial.  To promote access and to ensure the father would have at least two accesses per month, I order the interim access to be continued with 2 additional accesses per month to be arranged by the SWO, where the access arranged by SWO fell upon the alternate Saturdays interim access no substitute access would be given.  Penal notice had been endorsed. It has been made clear to the mother that any act of alienation was putting her care and control at risk.

15. Since the mother alleged the father was on drug and had psychiatrics problem, apart from the usual directions for trial, directions were also given for joint psychiatric report.  The father also undertook to attend random drug tests arranged by SWO, and to provide his full medical record requested by the mother and the result of his drug test to the joint psychiatrist. 

16. The Official Solicitor had since May 2014 informed the court the difficulties he had in contacting the mother and not able to have any interview with the mother.  The mother had not filed anything further for the trial after the 9 April 2014 hearing and failed to respond to the SWO’s request for interview.  The father had complied with all the trial directions, and the mother’s suspicious about the father’s psychiatric problem and drug problem was not substantiated.   However, no access could be arranged because of the mother’s attitude.  Time being the father took out a summons dated 17 June 2014 for care and control of the minor returnable on 20 June 2014.

17. The mother was absent for all court hearings since the pre-trial review hearing.  In the absence of the mother, various directions were given for the trial for the father’s application for care and control of the minor, including the mother to contact the Official Solicitor directly within 14 days and the school to provide the minor’s information to the Official Solicitor.  Despite repeatedly request from the Official Solicitor and the SWO, the mother did not respond to them, and instructed the school not to let anyone to have access to the minor, including the father and the maternal grandmother.  The class teacher revealed to the SWO and the Official Solicitor that during a recent class discussion about family, the minor said she had no father but only mother. 

18. The Official Solicitor had access to all the relevant court materials and had interviewed the father and his wife, the parental grandparents, the maternal grandmother, the maternal uncle and aunt, and the class teacher of the minor.  The maternal grandmother said to have no contract with the mother since July 2013, while the maternal uncle and aunt said they had no contract with the mother since December 2013.  The minor was not only deprived access to her father but also to the extended family.  The Official Solicitor was in the opinion that the mother would not respond to any matter related to the father’s application and this was contrary to the welfare of the minor.

19. The mother was absent on the trial date.  The trial was proceed in the absence of the mother, the Official Solicitor supported the father’s application for care and control.  Upon various undertakings of the father, I ordered the care and control of the minor be granted to the father and the mother was to hand over the care and control to the father on or before 1 September 2014 in the presence of the SWO.  Weekly defined supervised access to be granted to the mother.  A follow up direction hearing was held for conduct of the hand-over on 7 August 2014 and the matter was adjourned to 20 November 2014 for progress report to monitor the progress after hand-over.  The consolidated care and control order was made on 7 August 2014.  Penal notice had been endorsed. 

20. The mother was fully aware of the court orders. On 11 August 2014 the mother applied for all the audio recordings of the court proceedings since the September hearing.  She was provided the audio record on 29 August 2014.

21. On 29 August 2014 the mother took out two summonses related to the consolidated care and control order: one returnable on 1 September 2014 for stay of execution, and the other one returnable on 26 September 2014 for leave to appeal that order. Time being the mother moved out from her last known address on 28 August 2014 without providing her new address (the address stated on her two summonses was still her last known address). 

22. The mother was absent on the 1 September 2014 hearing, in her absence, upon hearing from the father and the Official Solicitor, I dismissed the mother’s application for stay of execution with costs. The minor did not return to school after the summer holiday on 1 September 2014.  Later it was discovered that the mother attempted to leave Hong Kong with the minor unsuccessfully on that day.  The mother went underground with the minor without a trace after 1 September 2014.

23. The mother was again absent on the 26 September 2014 hearing, during that hearing the father attempted to make ex-parte application for leave to issue committal proceedings against the mother.  Upon hearing from the father and the Official Solicitor, I adjourned the mother’s application (which in substance was an application to set aside the default judgment) to 2 December 2014, made no order to the father’s ex-parte application, but issued a warrant of arrest to show cause (address to the Bailiff) against the mother in relation to my interim access order dated 9 April 2014. 

24. Upon the father’s subsequent application, In view of the circumstances of the matter, the hearing fixed on 20 November 2014 for progress report was vacated and adjourned to 2 December to save costs.  The progress report dated 18 November 2014 shown that the whereabouts of the minor was still unknown. Upon considering the progress report, I vacated the 2 December 2014 hearing date on 21 November 2014.  Nothing was heard from the mother, upon the father’s written application, the mother’s application for leave to appeal was dismissed with costs on 4 December 2014.

25. Since then the father had exhausted all the possible means to locate the minor but failed.  The Bailiff attempted to execute the warrant without success.  Nothing positive revealed in the progress report dated 30 May 2015. 

26. The father made his second attempt for committal proceedings in October 2015; his ex-parte application was heard on 23 November 2015.  The Official Solicitor attended the hearing and supported the father’s application.   Leave was granted to the father to take out originating summons for committal proceedings returnable on 15 January 2016, personal service to be dispensed with and substituted by placing a notice of advertisement.  Time being I have made enquiry with the Chief Bailiff as to difficulty related to the execution of the warrant of arrest issued on 26 September 2014.

27. The mother was absent and the father invited the court to proceed his application in her absence.  The Official Solicitor also submitted that the court should proceed to hear the application in the present circumstances.  Substituted service was effected on 8 December 2015 in accordance to my direction.  In all the circumstances, I am with the view that it is only proper to proceed the present application without delay despite the absence of the mother.

Discussion

28. The minor has been deprived of access to her father and extended family since December 2013, and it is unknown whether any form of education has been provided to her since September 2014. 

29. Ms Koo for the father adopted the father’s supporting affirmation dated 30 September 2015 and her written submission for the present application; the Official Solicitor fully supported the father’s application.  The father through Ms Koo confirmed that he was still in contact with the maternal grandmother and he agreed to notify the maternal grandmother and the SWO about the execution of the warrant.

30. I agreed with Ms Koo that the mother was present and fully aware of the terms of my interim access order dated 9 April 2014.  Further, the minimum two accesses per month were to be arranged and supervised by the new SWO, any allegation from the mother that the father would cause harm to the minor was not supported by any objective evidence. 

31. All attempts made by the SWO for access arrangement were unsuccessful.  The memo dated 18 June 2014 from the new SWO stated that the mother was successfully contacted via her mobile phone on 15 April 2014, 9 May 2014 and 20 May 2014 respectively for working out the available date for access to the minor, but the mother claimed that she was engaging in work in each contact and refused to provide any dates for access arrangement.  Another seven phone calls made between 16 April 2014 to 10 June 2014 could only leave message at the mother’s voice mail for calling back to work out the date of access and a letter was sent to the mother for attending an office interview scheduled on 17 June 2014 but none of the contact received response.  The mother is yet to answer her non-compliance of the interim access order dated 9 April 2014.

32. The mother was given sufficient time to present her case against the father’s application for defined access and or care and control of the minor, yet the mother chose not to comply with the trial directions, not to co-operate with the SWO, not to respond to the Official Solicitor and was absent from all the court hearings since April 2014.

33. I agreed with Ms Koo that the mother was fully aware of the consolidated care and control order made on the 7 August 2014. She attended the family registry on 11 August 2014 in person to make application for the audio recording of all the court proceedings that was heard in her absence.  She obtained the audio record on 29 August 2014; on the same date she also took out two summonses related to the consolidated care and control order made on the 7 August 2014.  However, she chose not to proceed with her applications, instead went underground with the minor since September 2014.

34. Yet the facts that the mother being the main carer of the minor, the feelings and the impact upon the minor for any draconian measures could not be taken lightly.  Because of that the father’s first attempt for leave to take out committal proceedings was refused, instead a warrant of arrest to show cause for non-compliance of the interim access order dated 9 April 2014 was issued and addressed to the Bailiff only.

35. The Bailiff had attempted but failed to execute the warrant of arrest.  In reply to my enquiry the Chief Bailiff said that the usual difficulty which Bailiffs very often encountered during executing the warrant is the uncertainty of the whereabouts or lacking of the movement pattern of the judgment debtor, and they relied on the information provided by the applicant.

36. The mother has moved out from her last known address on 28 August 2014 but she did not up-dated her address with the court when she made her applications related to the consolidated care and control order on the next day. 

37. The father has reported the matter to the Police on 1 September 2014 and the case has been processed as “missing person”.  Various follow up actions were made through the Police, Immigration Department, Educational Bureau, Hospital Authority, but the whereabouts of the mother and the minor are still unknown.  I agree with Ms Koo that time being the father has exhausted all the possible means to locate the minor. 

38. The mother has attempted to leave Hong Kong with the minor on 1 September 2014 without success.  The mother had removed the minor from her usual school.  The mother has ceased her contact with her extended family.  The father, the extended family, the Official Solicitor and the SWO all failed to get in touch with the mother. The present condition of the minor is unknown.  The Official Solicitor representing the minor fully supported the present application.

39. Penal notice has been endorsed on the interim access order dated 9 April 2014 and the consolidated care and control order dated 7 August 2014.  It is clear that the mother was fully aware of the court orders, but did all she could to evade service and avoid compliance with the court orders, without giving proper consideration to the minor’s welfare, depriving the minor’s right to have access to her father, to have access to her extended family, removed the minor from her usual school and at present it is not known if any education was provided to the minor.

Conclusion

40. Since 2013 the father has made his best endeavours to try to resume his access to the minor and instituted the related Family Court Miscellaneous Proceedings FCMP188/2013.  In my view it is a reasonable inference from all the facts that the mother is fully aware of what is going on.  Given the mother’s wilful obstinacy, I am satisfied that the mother has been guilty of a serious contempt, in breach of the orders dated 9 April 2014 and 7 August 2014 and order that she be committed for that contempt. Yet I consider the mother should be heard on the question of penalty before any order is to be made.

41. The father requests the warrant for arrest and committal be addressed to Police and Immigration.  Having considering the reply from the Chief Bailiff, I am with the view that in the present circumstances the Chief Bailiff and his assistants on their own were having considerable difficulty in locating the mother in order to serve the warrant upon her. 

42. After referring myself to Secretary for Justice v Choy Bing Wing [2005] 4 HKC 416 and In the matter of Chan Chin Yuen HCMP 1155/2007, I think it is right for me to adopt a similar course and have the warrant be addressed to the Bailiff, Police and Immigration. However, I would decline the father’s request for leave to empower the Police to break in any premises where they do not have such authority to do so by virtue of the warrant of arrest and committal and the Police Force Ordinance Cap.232.   

43. I am therefore prepared to sign a warrant for arrest and committal of the mother requiring those to whom the warrant was addressed to apprehend the mother and to hold her in safe custody until such time as she may be brought before this court to answer for her contempt.

44. And to ensure that the mother be brought before this court with the minimum delay so that she could be given the opportunity to make representations before this court determined what penalty, if any, should be imposed.

45. I also order the mother to disclose the whereabouts of the minor upon the execution of the warrant and the father to notify the maternal grandmother and SWO within 24 hours upon the execution of the warrant.  Finally the SWO is requested to follow up the welfare matters of the minor without delay upon notification of the execution of the warrant and the whereabouts of the minor.

Costs

46. The father requested for costs on indemnity basis.  In light of the mother’s attitude, it is appropriate to let the father have costs of this application.  However, contempt proceedings do not by their nature alone attracting indemnity costs.  Having considered the circumstances of the present case, I make an order nisi that the mother is to pay costs of this application, on the usual party and party basis, with certificate to counsel, to be taxed if not agreed.  The costs order nisi is to be made absolute if no application for variation is received within 14 days from the notification of this order or the execution of the warrant, whichever is the earlier.