Case Update: Mok Kah Hong v Zheng Zhuan Yao [2016] SGCA 8 – SGCA orders 8 months’ prison for husband who defied court orders in civil / divorce case

Mok Kah Hong v Zheng Zhuan Yao [2016] SGCA 8

Significance: Court of Appeal orders a party in a civil not criminal case (divorce proceedings: division of matrimonial assets) to 8 months’ imprisonment for defying court orders, being liable for civil contempt of court. The Court set out helpful legal principles and guidelines on committal proceedings for civil contempt of court.

Timeline for payment of judgment debt as pre-requisite for committal proceedings

Imposing a timeline for payment of a judgment debt is to ensure that the judgment debtor knows exactly how and when he is obliged to comply with an order of court for the purposes of committal proceedings. This is pursuant to O 45 r 5(1)(a) of the Rules of Court. In a case where a judgment or order for the payment of money does not specify the timeframe within which the debtor has to comply (which is typically the case in most monetary judgments), enforcement by way of committal will not be available. It also bears noting that a judgment or order to pay money to another party typically does not require a specific time within which payment has to be effected, as opposed to a judgment or order for a positive act (ie, apart from the payment of money) to be done. Therefore, a judgment or order to pay money will, in most instances, be left open-ended as to the time for compliance: [41].

This timeframe requirement was highlighted in the decision of this court in QU v QV [2008] 2 SLR(R) 702. A distinction was also drawn between an order requiring a person to abstain from doing an act and an order requiring a person to do an act within a specified time. In the former scenario, time is not critical in so far as the failure to abstain from doing the act at any time constitutes a breach of the order. This stands in contrast to the latter scenario, where the party has to be told “by when he must do the act”: [42].

There exists a mechanism for the court to subsequently make an order requiring an act stipulated in an earlier order of court to be performed within a specific timeframe under O 45 r 6(2) of the ROC. However, not every default of an order for the payment of a monetary sum would justify the imposition of a time frame for payment as a precursor to the commencement of committal proceedings. There must be sufficient material before the court to warrant the exercise of discretion under O 45 r 6(2). The type and nature of material to support such applications is likely to differ, depending on the subject matter of the substantive case. In most cases, evidence demonstrating some form of contumelious conduct will likely suffice. In contrast, a one-off failure to comply with an order for the payment of money is unlikely to be a sufficient basis for the court to exercise its discretion: [44]-[46].

The court will also have to take into account, amongst other factors, any potential prejudice which may be occasioned to the person having to comply with the order of court. For instance, in cases where administrative or logistical difficulties are likely to arise in the course of effecting compliance with the judgment or order, the court will have to adopt a practical approach in balancing the interests of both parties. Meanwhile, in the event that the person has not manifested any intention to comply with the judgment or order, the court should be slow to accede to any request for an extended timeframe for compliance as that may have the unintended effect of further delaying or frustrating the applicant’s attempt to enforce the judgment or order: [47].

It is settled law that apart from the imposition of a custodial sentence, the court may also impose a fine as punishment even in cases of contempt by disobedience (see eg, Summit Holdings Ltd and another v Business Software Alliance [1999] 2 SLR(R) 592 (“Summit Holdings”) at [53] and Heatons Transport (St Helens) Ltd v Transport and General Workers’ Union [1973] AC 15). In fact, a fine is often regarded as an appropriate remedy in cases where the disobedience is of a less serious nature, or where the contempt is technical in nature and did not cause substantial prejudice to either the opposing party or the due administration of justice. The court should only take into account factors such as the contemnor’s health and suitability for imprisonment at the sentencing stage: [50].

On the facts, the court was satisfied that there was sufficient material before it to warrant the exercise of its discretion under O 45 r 6(2). The court took into account the fact that the husband had already, at that point in time, breached various other court orders: [52].

Legal Principles on Application for Leave to Commence Committal Proceedings

There are two stages to the committal of a non-complying party. The first stage involves the leave application to commence committal proceedings against the respondent (see O 52 r 2 of the ROC). Once leave has been granted, the second stage involves the actual application for an order of committal against the respondent. This application has to be made within 14 days of the grant of leave (see O 52 r 3(3) of the ROC): [56].

The threshold for the grant of leave at the first stage of the committal proceedings is that of a prima facie case of contempt. In BMP v BMQ and another appeal [2014] 1 SLR 1140 (“BMP v BMQ”). the requirement for leave prior to any commencement of committal proceedings essentially serves as a procedural safeguard. It is one of the procedural rules put in place to ensure that the liberty of the alleged contemnor is not, in any way, compromised due to the summary and quasi-criminal nature of the court’s jurisdiction in civil contempt. To this end, the applicant is required to provide full and frank disclosure of the background facts to the application. The proper procedure must also be strictly complied with before the court will grant leave to commence committal proceedings: [57].

In the course of hearing the leave application, the court must be mindful not to venture into or purport to decide the substantive merits of the committal application, which is properly the subject matter for adjudication at the second stage (ie, the actual application for the order of committal). From a perspective of fairness, it is only at the second stage that the respondent, having been given adequate particulars of the charges against him, will have ample opportunity to deny the allegations and provide an explanation for his non-compliance at the committal hearing. From a practical perspective, this principle works both ways. If the respondent’s position directly addresses the substantive issues arising out of the alleged contempt, such as where he admits non-compliance but relies on the argument that the non-compliance does not, in any event, amount to a contempt of court, he should only put forth his case at the second stage of the proceedings, as opposed to raising it prematurely at the leave stage (see Ang Boon Chye and another v Ang Tin Yong [2011] SGHC 124 (“Ang Boon Chye”) at [13]): [58].

A respondent’s objection to a leave application will succeed if it can be shown that there are exceptional circumstances directly impinging on the applicant’s entitlement to apply for leave to commence committal proceedings. Examples which a respondent may rely on to resist an application for leave to commence committal proceedings include:

(a) the Order of Court had been complied with;

(b) the plaintiffs waived their rights to the accounts;

(c) the plaintiffs had undertaken not to take out committal proceedings.

The common thread that runs through these three grounds is that they directly impinge on the applicant’s right to apply for an order of committal without delving into the substantive merits of whether the respondent ought to be
committed: [59].

Under O 52 r 2(2) of the ROC, an application for leave to commence committal proceedings must be supported by a statement setting out:

(a) the name and description of the applicant;
(b) the name, description and address of the respondent sought to
be committed; and
(c) the grounds on which his committal is sought.

A supporting affidavit will also have to be filed by the applicant, verifying the facts relied on in the statement. In this respect, a court hearing the application for leave will have to review the originating summons (or summons, as the
case may be), the statement and the supporting affidavit to ensure that a prima facie case of contempt has been established. If any of the aforementioned documents do not satisfy the requirements set out in O 52 r 2(2), the application may be dismissed by the court, even if no such objection was raised by the respondent to the application: [60].

The rationale behind the O 52 r 2(2) statement was similar to that of a criminal charge, which is required to be sufficiently particularised such that the accused knows the case he has to meet and has the opportunity to refute the allegations that have been put forth against him: [61].

The test is whether the O 52 r 2(2) statement is of sufficient particularity such that it gives the respondent adequate information to enable him to meet the charges against him: BMP v BMQ at [25]. The test is to be applied with reference to and from the perspective of a reasonable person in the position of the alleged contemnor reading the O 52 r 2(2) statement in a fair and sensible manner. In other words, if it is possible for a reasonable person, having regard to the background against which the committal proceedings have been commenced, to be in doubt as to what is, in substance, the breach as alleged by the applicant, such an O 52 r 2(2) statement would be regarded as defective or otherwise faulty: [62].

If an application for leave should be dismissed on account of insufficient particulars in the O 52 r 2(2) statement, the court has jurisdiction to entertain a fresh application founded on the same allegations of contempt, so long as the procedural rules are satisfied and the O 52 r 2(2) statement is in the proper form: [63].

An issue that may arise is the extent to which an applicant may, in the process of drafting an O 52 r 2(2) statement, refer to the contents of a separate document. references may be made to the contents of documents other than the O 52 r 2(2) statement provided they “form part of the notice”. In this regard, the nature of the document referred to and the manner in which the document is referred to are relevant considerations in the court’s determination of whether such references should be allowed. For starters, if an additional document, such as a schedule or an addendum, is “attached to the notice so as to form part of the notice” (Harmsworth v Harmsworth at 1683), such a reference would generally be allowed in so far as it enables a more efficient presentation and comprehension of the particulars of the alleged contempt: [64]-[65].

In contrast, references to other documents such as the affidavit filed in support of the leave application which do not form part of the notice would not be permitted. The purpose of the accompanying affidavit is for the applicant to verify the truth of the contents of the statement, and is not meant to supplement the O 52 r 2(2) statement. It is also the case that defects in the O 52 r 2(2) statement cannot be cured by way of submissions from counsel, either orally or in writing. The rationale for this distinction, given the quasi-criminal nature of committal proceedings, is to
ensure the information relied on by the applicant is “available to the respondent to the application from within the four comers of the notice itself”: [66].

Ancillary to the test of sufficient particularity is the consideration of whether the court may exercise its discretion to treat a case of an insufficiently particularised statement as an irregularity which may be waived pursuant to O 2 r 1(1) of the ROC: [67].

A distinction should be drawn between failure to observe procedural safeguards and mere technical irregularities. In contrast to the former, the court may waive irregularities but only if they are purely technical in nature. The distinction is not premised on the harm or prejudice suffered by the alleged contemnor. Save for exceptional circumstances, it is therefore irrelevant whether harm has been occasioned to the alleged contemnor as a result of the applicant’s failure to comply with the procedural rules. On one hand, the recognition that the liberty of the respondent is at stake, as in the case of criminal proceedings, usually entails strict compliance with procedure. On the other hand, the court should also be mindful of allowing unmeritorious respondents to escape liability on account of overly technical objections: [69].

A distinction has to be drawn between an order for the payment of money and an order for the recovery of money. The omission of O 45 r 1(1)(d) from the scope of O 45 r 13 effectively means that a judgment or order for the recovery of money cannot be enforced by way of an order of committal. The distinction between an order for the payment of money and an order for the recovery of money can be rationalised on the basis of the identity of the obligor. In the case of an order for the payment of money, the defendant is ordered to pay the plaintiff a sum of
money. In other words, the onus is on the defendant, as the named obligor, to effect compliance with the order. This stands in contrast to an order for the recovery of money, where the onus is on the plaintiff to recover the money from the defendant. An order for the recovery of money does not explicitly require the defendant to do a specific act. In the circumstances, the defendant cannot be held liable under the law of contempt in the event that the plaintiff fails to recover the money from the defendant: [79].

In ascertaining whether an order of court falls within the scope of an order for the recovery of money or an order for the payment of money, the specific terms of the order are of primary importance: [81].

Legal Principles on Conviction in Committal Proceedings

First, it is well-established that the applicable standard of proof to both criminal and civil contempt is that of the criminal standard of proof beyond reasonable doubt: Pertamina Energy Trading Ltd v Karaha Bodas Co LLC and others [2007] 2 SLR(R) 518 (“Pertamina Energy Trading Ltd”) at [31]–[32], citing In re Bramblevale Ltd [1970] Ch 128 at 137: [85].

Secondly, as regards the issue of the requisite mens rea to establish contempt for disobedience of court orders, it is accepted that it is only necessary to prove that the relevant conduct of the party alleged to be in breach of the court order was intentional and that it knew of all the facts which made such conduct a breach of the order: Pertamina Energy Trading Ltd at [51]. This necessarily includes knowledge of the existence of the order and its material terms. It is, however, not necessary to establish that the party had appreciated that it was breaching the order. Therefore, the motive or intention of the party who had acted in breach of the order is strictly irrelevant to the issue of liability though it may have a material bearing in determining the appropriate penalty to be imposed: [86].

Thirdly, the principle that committal proceedings should not be directed against an impecunious judgment debtor has to be applied carefully as it may be used as a smokescreen for the purposes of relitigating issues already determined by the court: [87].

The debtor’s reasons for failure to pay must be limited to matters or events arising after the date of the default order or the date of the hearing of any subsequent motion for committal, whichever date is the most recent. The court may be persuaded to admit reasonably unforeseeable consequences of events or matters predating the default order or the subsequent motion for committal. What ought not to be allowed is an attempt to submit reasons for non-payment that were already submitted or that, with due diligence, could have been submitted before the judge who made the order of committal or who heard any subsequent motion for committal. The motion for committal is never a default hearing de novo. evidence from the payor that pre-dates the default hearing, unless it was “reasonably unforeseeable”, is not admissible at a motion for a warrant of committal. Only evidence arising after the default hearing, which establishes a material change in circumstances going to the debtor’s ability to pay, will be considered by the court: [90].

Notably, not every default in the payment of a monetary sum pursuant to a judgment or order should give rise to committal proceedings. In addressing the argument whether committal proceedings can be brought against “impecunious judgment debtors”, it is crucial to bear in mind, inter alia, the distinction between a case where no finding has been made on the defendant’s financial means and a case where a specific finding on the defendant’s financial means has been determined in the course of the substantive hearing. In the former scenario, such as where a defendant has been adjudged to pay damages for breaching a contract or committing a tort, the question of whether the defendant is able to satisfy the judgment debt is often left unresolved as it may not be immediately relevant to the issues at the substantive hearing. This stands in contrast to an order to divide matrimonial assets pursuant to s 112 of the Women’s Charter, where the court has to first ascertain the assets held by each party before deciding which of these assets fall within the pool of matrimonial assets for the purposes of division. It would be objectionable to commit a judgment debtor to prison in spite of the debtor’s proven inability to comply with the judgment or order: [92].

There is a distinction between committal proceedings being a remedy of last resort and the requirement of having to exhaust all other alternative remedies before committal proceedings can be resorted to. The doctrine of exhaustion of remedies exists in areas of law such as conflicts of law and administrative law. It should not, however, be extended to the law of committal, especially where there is clear evidence that such alternative enforcement mechanisms may not be successful: [96].

Legal Principles on Sentencing in Committal Proceedings

Sentencing principles for contempt by interference and contempt by disobedience do differ to some extent as the underlying rationale for each type of contempt is quite different: [102].

A distinction should also be drawn between breaches which are one-off in nature and breaches which are either continuing or repeated in nature. Even among cases involving contempt by disobedience, the sentencing principles applicable to a one-off breach and a continuing breach are likely to be different: [102].

Within the category of one-off breaches, the overriding sentencing principle is one of punishment, in that the breach has already been committed. There is no coercive value in the sentence to be imposed as the contemnor is usually not in a position to remedy the breach, apart from the expression of contrition by way of retraction of the scandalising material or a public apology. This stands in contrast to a situation where a contemnor is ordered to do an act but continuously refuses to comply, as in the present case. In these circumstances, the objective of compelling the contemnor to effect compliance with the order is likely to be a given a significant degree of weight. That is not to say that there is no punitive element in the sentences imposed on such contemnors. In fact, in most instances of a “continuing” breach, the sentence imposed will include both punitive and coercive elements. However, the same cannot be said as regards one-off breaches, where the coercive element is not likely to feature at all: [103].

The relevant factors to be taken into account in sentencing are as follows: at [104].

First, whether the claimant has been prejudiced by virtue of the contempt and whether the prejudice is capable of remedy.

Second, the extent to which the contemnor has acted under pressure.

Third, whether the breach of the order was deliberate or unintentional.

Fourth, the degree of culpability.

Fifth, whether the contemnor has been placed in breach of the order by reason of the conduct of others. Sixth, whether the contemnor appreciates the seriousness of the deliberate breach.

Seventh, whether the contemnor has co-operated.

In the context of matrimonial proceedings, the factors which may be taken into account are as follows.

First, a degree of continuity in the contemptuous conduct. Although the eventual sentence may only be passed in relation to a specific act (or acts), the courts do take into account the past conduct of the contemnor in determining the appropriate sentence to be imposed: [106].

Second, the impact of the contemptuous conduct on the other party. The court will usually place some weight on the issue of whether the contemptuous conduct is irreversible in nature. In cases where a significant portion of the assets has been disposed of with no prospect of recovery, the courts have generally adopted a relatively harsh stance in the exercise of its sentencing powers: [107].

Third, the nature of the non-compliance, in particular, whether it was intentional or fraudulent on the part of the contemnor. While the motive or intention of the alleged contemnor is generally irrelevant to the question of liability for contempt, it is nonetheless a relevant factor for the purposes of sentencing: [109].

Fourth, genuine attempts on the part of the alleged contemnor to comply with the judgment or order. Typically, a lower (or suspended) sentence will be imposed in cases where the alleged contemnor had demonstrated substantive attempts to effect compliance. The corollary to that would be the imposition of a higher sentence in cases where the alleged contemnor acts in contumelious disregard of the judgment or order and makes no attempt whatsoever to effect compliance, or worse still, takes positive steps to frustrate the effect of the order of court. E.g. part payment by the contemnor has been accepted by the courts as a mitigating factor: [110].

In this case, the court granted the contemptuous party a final indulgence by suspending the sentence for a period of four weeks to enable him to take steps to effect compliance with the order; the party nonetheless refused and was committed to imprisonment: [116].

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