Case Commentary

Family Law – Court of Appeal discharges travel restriction in divorce case on human rights grounds

The Court of Appeal discharged a Prohibition Order restraining the Respondent / ex-husband from leaving Hong Kong on the ground that the travel restriction disproportionately interfered with his freedom of movement under Article 31 of the Basic Law and his common law right to work.

CWYJ v LTYE 

   
Reference:     [2020] HKCA 913
   
Court:        Court of Appeal
Before:       Hon Cheung, Chu and Barma JJA in Court
Date of Judgment:   8 October 2020
Appearance:   Jeremy S.K. Chan (acting pro bono), Tim Parker (acting pro bono) and Vivien Leung, instructed by Rita Ku and Paul Lee of Withers, represented the successful Respondent
   

Background

The Prohibition Order had been imposed by a Deputy District Judge on 6 July 2020 pursuant to section 52E of the District Court Ordinance (Cap. 336) (“DCO”). The function of such orders, which prohibit the subject from leaving Hong Kong, is to facilitate the enforcement of judgments, orders or civil claims.

The Deputy Judge found that there was a likelihood that the Respondent would leave Hong Kong and not return for a substantial period of time, thereby impairing the Petitioner / ex-wife’s efforts to enforce a Consent Order requiring the Respondent to make periodical payments and lump sum payments.

The Deputy Judge further held that the Respondent’s eagerness to return to work, and the risk of him losing his job in Singapore, were not matters that needed to be “put in the scales” or given any weight. The Deputy Judge dismissed the Respondent’s subsequent application to set aside the Prohibition Order.

The Court of Appeal’s reasoning

The Court of Appeal allowed the Respondent’s appeal, discharging the Prohibition Order. The problematic area of the judgment below, the Court of Appeal found, was the lack of consideration given to the Respondent’s constitutional right to freedom of movement guaranteed under the Basic Law, and his common law right to work.

The Court emphasised the importance of the right to pursue one’s job or profession, noting that this right had been deeply entrenched in the common law, dating back centuries. These were material factors that should not have been ignored by the Deputy Judge.

Further, the enforcement proceedings were not expected to be concluded quickly, and a strong case was required to continue to keep the Respondent in Hong Kong, particularly when the travel ban would have an adverse impact on his employment situation and impede his ability to pay the Petitioner.

The Judgment also touches on the interaction between the statutory requirements for a Prohibition Order and section 12 of the Matrimonial Proceedings and Property Ordinance (Cap. 192), pursuant to which payment of certain arrears becomes unenforceable after 12 months without leave of the court.

The Court of Appeal held that section 52E(1) of the DCO was drafted in general terms, and that a Prohibition Order could be granted under that provision even if the debt sought to be enforced constituted arrears which the other party required leave to enforce under the 12-month rule.

Jeremy S.K. Chan (acting pro bono), Tim Parker (acting pro bono) and Vivien Leung, instructed by Rita Ku and Paul Lee of Withers, represented the successful Respondent.


Jeremy S. K. Chan

Jeremy enjoys a broad civil practice, concentrating particular emphasis upon private client work and Chancery matters, in particular matrimonial finance & family law, inheritance & probate, trust & administration, conveyancing & land disputes. He is widely regarded as “one of the top family practitioners”, as noted in Chambers & Partners Global 2020 and recognised as a leading junior counsel in estates and probate litigation by Doyles Guide 2020.


Tim Parker


Tim was called to the Bar in 2009 and has established a strong reputation for his advocacy and advisory work, which encompasses the areas of public international law, constitutional and administrative law, competition, and civil/commercial matters. He is ranked as “one of the go to Counsel” by Chambers & Partners Global.

Recently, Tim (led by Mr Philip Dykes SC and Mr Robert Pang SC, and with Mr Geoffrey Yeung and Mr Albert NB Wong) acted for the Applicant in The Hong Kong Journalists Association v. The Commissioner of Police and Another (19/11/2020, HCAL 2915/2019) [2020] HKCFI 2882, in which the High Court ruled that the failure of police officers to display unique identification and the lack of an independent police complaints mechanism violate the Hong Kong Bill of Rights. 

Tim practises both in Hong Kong and the United Kingdom, where he is a member of Blackstone Chambers.


Vivien Leung

Vivien is a former solicitor with a decade of litigation experience under her belt. Before joining the Bar in 2020, Vivien trained and practised as a commercial litigator from 2009 to 2016 at Deacons; from 2016 to 2019, she practised as a family lawyer at Withers.  In recent years, she has developed a specialist practice in matrimonial law. Alongside her matrimonial practice, Vivien is regularly instructed to advise on fraud and assets tracing, trusts, land, probate and succession, company and chancery matters.


Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case.