Tan Beow Hiong v Tan Boon Aik

Steven Chong J:

[1] This appeal, which arises from a lamentable series of events, raises a number of novel and difficult issues, and underscores the need (highlighted by Chan Sek Keong CJ at para 21 of His Honour’s speech at the Opening of the Legal Year 2010) for greater clarity with regard to the law of contempt.

[2] On 11 June 2002, a Decree Nisi dissolving the marriage of Mr Tan Boon Aik (“the Respondent”) and Mdm Tan Beow Hiong (“the Appellant”) was granted by District Judge (“DJ”) Emily Wilfred. The Decree Nisi contained a consent order that the parties:

[3] The Decree Nisi was made absolute on 18 September 2002, and by the terms of the consent order, the matrimonial flat ought to have been sold by 18 September 2003.

[4] However, this was not done. The Respondent in his affidavit dated 28 June 2006 alleged that this was due to inaction and/or obstruction by the Appellant. Consequently, the Respondent applied for, and on 20 July 2006 was granted, an Order of Court (the “20 July Order of Court”) that:

[5] Despite the 20 July Order of Court granting the Respondent sole conduct of the sale of the matrimonial flat and empowering the Registrar to execute the necessary documents on the Appellant’s behalf, the matrimonial flat remained unsold and occupied by the Appellant. The Respondent therefore applied on 23 September 2008 (in SUM No 650368 of 2008) for an order that the Appellant be compelled to move out of the matrimonial flat within eight weeks thereof. In his affidavit of even date in support of his application, the Respondent alleged that this was again due to the Appellant’s irrational refusal to cooperate with his conveyancing solicitors and/or property agents. In her affidavit dated 11 December 2008, the Appellant did not satisfactorily explain her continued failure to comply with the Decree Nisi and/or the 20 July Order of Court. In the circumstances, it was unsurprising that, on hearing the Respondent’s application, DJ Low Wee Ping made an order on 5 March 2009 (the “5 March Order of Court”) that:

[6] The Appellant was therefore obliged to move out of the matrimonial flat by 5 August 2009. It should be noted that in para 27 of her affidavit dated 11 December 2008, the Appellant had requested for a period of “six months” in which to vacate the matrimonial flat, and that the deadline of 5 August 2009 was therefore either generous (since the Appellant was herself only asking for a deadline of six months from the date of her affidavit, ie 11 May 2009) or reasonable (since the Appellant was given five months to move out of the matrimonial flat when she had requested for six months).

[7] Despite the lapse of the deadline of 5 August 2009, the Appellant remained in occupation of the matrimonial flat. On 16 August 2009, however, and notwithstanding that sole custody of the sale of the matrimonial flat had been granted to the Respondent, the Appellant (represented by one Ms Winnie Tan (aka Mah Hwee Khoon)) negotiated for the sale of the matrimonial flat to a pair of buyers represented by one Mr Fabian Leong (“Mr Leong”) (Ms Winnie Tan and Mr Leong are collectively referred to as “the agents”). Mr Leong, in his affidavit dated 6 January 2010, alleged that the Appellant had verbally assured him that she would be willing to move out of the matrimonial flat 30 days prior to completion of the sale, which, according to Mr Leong’s affidavit, was originally estimated to be sometime in mid-December 2009. According to paras 9 and 13 of Mr Leong’s affidavit, the Appellant had repeatedly assured him that she would move out of the matrimonial flat by 31 December 2009.

[8] It seems that the Respondent did not object to the Appellant having conduct of the sale, notwithstanding the 20 July Order of Court granting him sole custody, as well as the 5 March Order of Court requiring the Appellant to move out by 5 August 2009, because it appeared to him that the Appellant was finally cooperating, and so as to avoid further acrimony between the parties which might otherwise have jeopardised the sale process. The Respondent’s conduct in this respect cannot be criticised though it was possible that the Appellant may have been led to believe, through the Respondent’s repeated indulgences that deadlines for compliance with court orders would not be strictly enforced.

[9] Inexplicably, however, in October 2009, the Appellant refused to execute the option to purchase, but instead demanded that the Respondent’s solicitors apply to court to have the Registrar execute all conveyancing documents on her behalf in accordance with the 20 July Order of Court. Although this was done in November 2009, the Appellant informed Mr Leong (on 11 December 2009) that she would only move out of the matrimonial flat after completion of the sale.

[10] This was unacceptable to both the Respondent and the buyers, but efforts to persuade the Appellant to leave the matrimonial flat by Ms Winnie Tan proved futile. On 30 December 2009, the Respondent’s solicitors wrote to the Appellant informing her that they would be taking possession of the matrimonial flat on 4 January 2010.

[11] On 4 January 2010, the Respondent’s solicitors, together with Mr Leong, attempted to take possession of the matrimonial flat, but were met with strident resistance from the Appellant, who allegedly said that she would not leave unless an order of committal had been issued against her (para 25 of the affidavit of Eu Hai Meng dated 6 January 2010).

[12] Perhaps understandably, on 6 January 2010, the Respondent made an ex parte application (SUM No 650001 of 2010) for leave to apply for an order of committal of the Appellant for contempt of the 5 March Order of Court. Leave having been granted the same day by the Deputy Registrar, the necessary documents were served on the Appellant on 7 January 2010, and after two rounds of pre-trial conferences, the application for the committal order was eventually heard by DJ Sowaran Singh on 1 March 2010.

[13] At the hearing, the Appellant gave evidence that she did not move out within the five months as directed by the 5 March Order of Court because she understood that since the completion for the sale of the matrimonial flat was only to take place on 1April 2010, she need not move out prior to that date. She further added that based on the completion date of 1 April 2010, she had secured a rental flat commencing on 1 April 2010 and that she would move out by then. Under cross-examination, Respondent’s counsel informed her that the buyers were not agreeable to give her more time beyond 8 or 9 March 2010 (ie a week from the hearing). As legal completion was scheduled to take place on 1 April 2010, it was not entirely clear to me on what basis could the buyers have required the sellers, including the Appellant, to provide vacant possession any time prior to 1 April 2010. It later emerged from her cross-examination that, although the buyers were originally not prepared to let the Appellant move out later than 8 or 9 March 2010, the Appellant was eventually able to persuade them to allow her to move out by noon on 14 March 2010. It should be noted that this date was, therefore, not imposed on the Appellant by DJ Sowaran Singh; rather, it was a date which was mutually agreed, as the transcript revealed:

[15] During the further hearing before me on 26 July 2010, I sought clarification from the parties as regards this apparent “right” of the buyers to vacant possession prior to the completion date of 1 April 2010. The Appellant informed me that when she entered into the agreement to sell the matrimonial flat to the buyers on or about 16 August 2009, she had also agreed out of goodwill, at the request of the buyers, to hand over the matrimonial flat 30 days prior to the completion date. However, on or about 11 December 2009, the Appellant withdrew the goodwill offer because the buyers did not release the balance option fee of $1,500 to her within the stipulated date. The Appellant informed the buyers through the agents of this withdrawal and that vacant possession would instead be handed over on the completion date. The buyers did not respond to the Appellant’s withdrawal. Although the balance option fee was eventually released to the Appellant, there was no subsequent agreement by the Appellant to restore her goodwill offer for early possession. Counsel for the Respondent did not dispute the Appellant’s explanation and in fact accepted that the buyers had no contractual right vis-a-vis the Appellant to vacant possession prior to 1 April 2010. This is a finding of some significance because if DJ Sowaran Singh had been informed that the buyers had no such right to early possession, he might have been minded to accede to the Appellant’s request to vacate closer to the completion date.

[16] According to the Appellant’s affidavit dated 14 June 2010, she undertook several steps to appeal against the Committal Order from 3 March 2010 onwards, and an appeal was eventually filed by her on 12 March 2010, essentially seeking that DJ Sowaran Singh’s Committal Order be set aside.

[17] Unfortunately, the Appellant was apparently under the mistaken impression that an appeal operated automatically as a stay of execution, and therefore did not move out of the matrimonial flat by 14 March 2010 (although in her affidavit of 14 June 2010 she alleged that she was making efforts to move out expeditiously).

[18] Consequently, on 15 March 2010, the Appellant was committed to prison for 30 days. Although the Appellant has served her term of imprisonment (commuted to 18 days from 15 March to 3 April 2010) for her contempt, she nonetheless pressed ahead with her appeal, a course of action which has raised a number of interesting issues.

[19] During the hearing before me on 26 May 2010, I informed the parties that given the important issues which this appeal has raised and the fact that the Appellant was not represented by counsel, I decided, in the interest of the fair administration of justice, to appoint an amicus curiae to assist the court. Ms Kristy Tan (“Ms Tan”) was thereafter appointed as amicus curiae by letter dated 7 June 2010 and was invited to address the following issues:

(a) In contempt proceedings, whether the Court has the power to quash an order for committal and its sentence when the contemnor has already served the sentence;

(b) If the Court has such powers in (a), what factors would affect the Court’s decision in the exercise of its power to quash the order for committal and sentence; and

(c) On the facts of the present appeal, assuming that the Appellant genuinely believed that the filing of the appeal operated as a stay of the Committal Order, whether that would be a sufficient ground to quash the Committal Order and sentence, and whether, given the quasi-criminal nature of committal proceedings, ignorance of the law would displace the mens rea element required for contempt of court.

As a corollary to issue (b) above, it is relevant to consider whether, on the facts of the present appeal, any of the factors identified in (b) are present to justify quashing the conviction and sentence.

[20] In essence, I was asking Ms Tan to elucidate the court’s power to quash an order for committal and/or the resulting warrant for committal. After carefully considering the above issues, I have decided to quash the warrant for committal issued pursuant to the Committal Order as well as set aside the 30-day sentence that had been activated by the warrant for committal. For the avoidance of doubt, in this judgment, I use the terms “quash” or “set aside” to mean annul and void ab initio

[21] It is appropriate, however, to preface the reasons for my decision, and the examination of the above issues, with some preliminary observations on the law in respect of contempt of court in general.

[22] According to Hale LJ in Griffin v Griffin [2000] 2 FLR 44 (at 48) (see also para 21 of Chan CJ’s speech at the Opening of the Legal Year 2010):

As such, although the jurisdiction of the courts in Singapore to punish for contempt of court is statutorily embodied (see s 8 of the Subordinate Courts Act (Cap 321, 2007 Rev Ed) (“SCA”) and s 7 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”)) and regulated (see O 45 and O 52 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“Rules of Court”)), the solutions to most of the novel issues in this appeal are to be found in the common law.

[23] There is, at common law, a distinction conventionally drawn between criminal and civil contempt of court: see Sir David Eady and Professor A T H Smith, Arlidge, Eady & Smith on Contempt (London: Sweet & Maxwell, 3 Ed, 2005) (“Arlidge, Eady & Smith”), Chapter 3, as well as Nigel Lowe and Brenda Sufrin, Borrie & Lowe: The Law of Contempt (London: Butterworths, 3 Ed, 1996) (“The Law of Contempt”), at pp 655–664. Although the distinction is sometimes criticised (Arlidge, Eady & Smith at paras 3-47 – 3-54 and The Law of Contempt, supra), it is fairly clear that breach of a coercive (ie prohibitory or mandatory) court order or judgment is a civil contempt (see the speech of Lord Oliver in Attorney General v Times Newspapers Ltd [1992] 1 AC 191 at 217), and does not amount to a criminal offence. As Lord Atkinson noted in Scott v Scott [1913] AC 417 (at 456):

[24] Notwithstanding this, however, perhaps because of the penal sanctions which may follow a finding of contempt, civil contempt has occasionally been described as a “common law misdemeanour”: see eg per Lawton LJ in Linnett v Coles [1987] 1 QB 555 at 561 and Cumming-Bruce LJ in Lee v Walker [1985] 1 QB 1191 at 1201. However, this usage has been criticised (see Arlidge, Eady & Smith at paras 3-82 – 3-84), and the better view is that, as The Law of Contempt states at p 662:

[25] Nonetheless, it is still correct to observe that civil contempt has criminal overtones, not least because a contemnor is liable to be imprisoned, and it is therefore often said that civil contempt “partakes of a criminal nature” (per Lord Denning MR in Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67 (“Comet Products”) at 73 (see also Re Bramblevale Ltd [1969] 3 WLR 699 at 704)) or is “quasi-criminal” (per Cross LJ in Comet Products at 77 and Oliver LJ in Lamb v Lamb [1984] FLR 278 at 281). As a result, a number of safeguards must be observed before a litigant is visited with the drastic and punitive consequences attendant on a finding of contempt (see generally Arlidge, Eady & Smith at paras 12-15 – 12-65):

(a) Committal proceedings are a measure of last resort (P J Holdings Inc v Ariel Singapore Pte Ltd [2009] 3 SLR(R) 582 at [5]), especially in family and matrimonial matters (Danchevsky v Danchevsky [1975] Fam 17 at 22 (“Danchevsky”) (per Lord Denning MR) and Ansah v Ansah [1977] Fam 138 at 144 (per Ormrod LJ)) (see further [57] to [64] below);

(b) Contempt must be proved on the criminal standard, ie beyond a reasonable doubt: Pertamina Energy Trading Ltd v Karaha Bodas Co LLC and others [2007] 2 SLR(R) 518 (“Pertamina Energy”) at [31] to [35];

(c) The alleged contemnor must be given the right to be properly heard, which normally entails a strict adherence to the procedural rules, eg the prescriptions as to the form of an order for committal set out in O 52, rr 2 and 3 of the Rules of Court (see generally Chapter 15 of Arlidge, Eady & Smith), although the approach of the English courts in this respect has changed somewhat (see [80] below).

[26] With these preliminary matters settled, I will now deal with the issues pertinent to this appeal.

Whether the Court has the Power to Quash an Order for Committal and its Sentence when the Contemnor has Already Served the Sentence

[27] One of the Appellant’s reasons for appealing against the Committal Order is that the imprisonment term, if not expunged, would leave her with a criminal record and affect her future employability.

[28] Given that civil contempt is not a crime, it follows that the Appellant is not a criminal, and she therefore cannot be entered on the Register of Criminals under the Registration of Criminals Act (Cap 268, 1985 Rev Ed) (“ROCA”). Section 4 of the ROCA mandates that the Registrar of Criminals shall keep a register of, inter alia, persons convicted of any crime in Singapore, and s 2 of the ROCA states that a “crime” is “any offence included for the time being in the First or Second Schedule”. In neither Schedule, however, is there a reference to s 8 of the SCA or s 7 of the SCJA, or to contempt more generally.

[29] It would seem, therefore, that even if the Appellant’s appeal is successful, there is no criminal record to expunge. In the circumstances, it might appropriately be asked whether the court has the power to hear and adjudicate an appeal which appears to be moot, ie where the sentence has already been served or judgment already executed.

[31] If this is the case in ordinary civil proceedings, there is no real basis for adopting a different approach in contempt proceedings, where, due to the fact that a person’s liberty and reputation are at stake, it should be even more imperative that an appellate court hear, and rule on, an appeal, even if the alleged contemnor has already served the sentence imposed.

[32] I am fortified in my conclusion by the fact that this was also the view arrived at by Ms Tan. Although her research did not reveal any local decision on point, she helpfully referred me to various provisions of the SCJA as well as a number of English authorities to support her view that the court does have the jurisdiction to quash an order for committal and a sentence thereunder notwithstanding service of the sentence by the contemnor.

[33] First, Ms Tan relied on ss 20, 22 and 37 of the SCJA which read, inter alia, as follows:

From these provisions, it is clear that the High Court, when hearing an appeal from the District Court, can “make any order which ought to have been given or made, and make such further or other orders as the case requires” [emphasis added].

[34] Next, Ms Tan referred to several English cases which throw some light on the matter.

[35] In Lamb v Lamb (see [25] above), the respondent wife was granted, inter alia, an order ousting the appellant husband from the matrimonial home and restraining him from removing or destroying its contents. The husband removed some items from the matrimonial home and damaged others before he left. The wife applied for an order for committal for breach of the order, and the court hearing the application decided to dispense with notice to the husband and dealt with the matter ex parte, ordering the husband to be committed to prison for 14 days (“the first order”). The husband appealed, inter alia, against the first order, and by the time of the hearing of the appeal, the 14 days had expired.

[36] Oliver LJ commented (at 280–281) that:

Nonetheless, the English Court of Appeal went on to hear, consider and adjudicate upon the appeal (albeit the husband’s appeal against the first order was dismissed).

[37] In Islamic Investment Company of the Gulf (Bahamas) Ltd v Symphony Gems NV & others [2008] EWCA Civ 389 (“Symphony Gems”), the English Court of Appeal was dealing with a suspended order for committal for 28 days made by Bean J on 31 January 2008 against a judgment debtor (“Mr Mehta”) who had failed to attend an examination of judgment debtor (“EJD”) ordered on 16 January 2007 and scheduled for 31 January 2008. Bean J’s order was suspended on condition that Mr Mehta attend a re-scheduled hearing for the EJD on 11 March 2008, in which case the suspended committal order would be automatically discharged. Although it was not disputed that Mr Mehta had been in contempt of court for failing to attend the 31 January 2008 EJD, Mr Mehta appealed to set aside the suspended committal order, on the basis that, the evidence before the court could not have been satisfied beyond a reasonable doubt that Mr Mehta had been in such contumacious contempt as to justify an order for committal, suspended or otherwise. As it turned out, Mr Mehta did attend the EJD on 11 March 2008, and the suspended committal order would therefore have been discharged, rendering Mr Mehta’s appeal somewhat unnecessary. Nonetheless, after noting that Mr Mehta had complied with the suspended order for committal by being present for the rescheduled EJD on 11 March 2008, Rix LJ commented at [18]:

[38] By analogy, on the facts of the present appeal, if, as submitted by the Appellant, the order for committal should never have been made in the first place then the Appellant is entitled to have this court say that, notwithstanding that she has already served the sentence imposed.

[39] Indeed, the English Court of Appeal went on to hold that the evidence before Bean J did not establish, to the criminal standard of proof, that Mr Mehta’s conduct had been so contumacious as to justify an order for committal, and Rix LJ concluded (at [32]):

[40] Another example is to be found in Linnett v Coles (see [24] above), where the defendant had on numerous occasions failed to obey orders made by the High Court to produce certain documents. For his contempt, the defendant was committed to prison “until further order”. After serving eight days in prison, the defendant was released on bail, and thereafter complied with the order to produce the documents, and apologised to the court. At the same time, he lodged an appeal contending that the committal order was unlawful, as it purported to imprison him for an indefinite period, contrary to the maximum two-year period set by s 14(1) of the Contempt of Court Act 1981 (c 49) (UK).

[41] The English Court of Appeal held that the committal order was indeed unlawful, and concluded that s 13(3) of the Administration of Justice Act 1960 (c 65) (UK) (“the AJA 1960”), on its proper construction, gave the English Court of Appeal jurisdiction to remedy an irregularity in the making or form of a committal order which had been executed (such as by substituting a new sentence), if justice so required. More will be said on this aspect of the case later (see [80] to [82] below), but for present purposes the important point was that the English Court of Appeal allowed the appeal and quashed the defendant’s sentence (without substituting another sentence). Lawton LJ held (at 562):

[42] Linnett v Coles does not provide a complete parallel to the present appeal, as the defendant had only partially served his (indefinite) sentence, whereas here the Appellant has fully served her sentence. Nonetheless, there is no indication (especially not in the speech of Lawton LJ quoted above) that the English Court of Appeal in Linnett v Coles would have felt itself constrained in quashing an unlawful sentence, simply because that sentence had been fully served. Ms Tan highlighted to my attention that the statutory provision (viz s 13 of the AJA 1960) which was relied on in Linnett v Coles is in very similar terms to s 37(5) of the SCJA (see [33] above).

[43] In light of the provisions of the SCJA and the English cases referred to above, I am satisfied that I have the power to hear and adjudicate the Appellant’s appeal, and, if necessary, quash the Committal Order and the Appellant’s sentence, notwithstanding that she has already served it. Counsel for the Respondent fairly submitted, after considering Ms Tan’s submissions, that the High Court is indeed vested with such a power.

[44] Contempt has to be proven beyond a reasonable doubt on established legal principles, and once contempt is proved, the court has a discretion as to sentence – whether an order for committal should be made (instead of a fine or a reprimand), and if so, how long the committal period should be.

[45] The grounds for appellate intervention where the lower court has erred in applying legal rules to the facts before it (ie where it has no discretion, such as making a finding of contempt) are well-known: an appellate court will intervene where the lower court has misdirected itself as to the law, or where the lower court has made findings of fact which are plainly wrong or against the weight of the evidence (see generally Jeffrey Pinsler, Singapore Court Practice 2009 (Singapore: LexisNexis, 2009) (“Singapore Court Practice 2009”), at paras 57/1/12–57/1/14). Where a lower court has made a decision in the exercise of judicial discretion, eg the sentence to be imposed in respect of a proven contempt, an appellate court will not intervene unless (Singapore Court Practice 2009 at para 57/1/15):

[46] These traditional grounds for appellate intervention have also been applied to reverse findings of contempt (see Re Bramblevale Ltd ([25] above), where a finding of contempt was overturned because contempt could not be proved beyond a reasonable doubt), as well as to set aside or vary committal orders (see Banton v Banton [1990] 2 FLR 465, where a committal order was set aside as the lower court had not appreciated that it had a discretion as to sentence).

Whether a Genuine Belief that the Filing of an Appeal Operated as a Stay of Execution Would be a Sufficient Ground to Quash the Committal Order and Sentence

[47] It is well-settled that the mens rea necessary to establish a finding of civil contempt is set at a low threshold: the contemnor need only intend to do acts which put him in breach of a coercive court order; it need not be shown that he had the specific intention of disobeying the court order. The contemnor’s motive in doing the acts which breached the court order is irrelevant to the question of liability, and is only relevant to the question of mitigation. This was confirmed beyond doubt by the Singapore Court of Appeal in Pertamina Energy (see [25] above) at [51] to [62], where it endorsed the voluminous case law supporting such an approach, and commented (at [51]) that:

[48] On the facts of this appeal, therefore, it is irrelevant that the Appellant did not appreciate that an appeal did not operate as a stay of execution of the Committal Order: her conduct in intentionally remaining in the matrimonial flat after 14 March 2010 was, to paraphrase the Court of Appeal’s judgment in Pertamina Energy quoted above, in breach of the Committal Order, and she knew of all the facts which made such conduct a breach (including knowledge of the existence of the Committal Order and of all of its material terms). In this respect, it was common ground between Ms Tan and the Respondent’s counsel that the Appellant’s belief that the appeal operated as a stay of the Committal Order was irrelevant to the issue of mens rea and in any event cannot displace the mens rea element required for contempt of court.

[49] However, I agree with Ms Tan that the Appellant’s belief that the appeal operated as a stay of the Committal Order could be relevant to the question of mitigation for the purpose of determining the appropriate sentence/punishment. In my view, it is equally relevant to the exercise of discretion to grant additional time for compliance with a court order (a point addressed in further detail at [87] below). At its highest, however, the Appellant’s mistaken belief could only justify varying or quashing the sentence of 30 days’ imprisonment, and not the Committal Order itself. Setting aside the Committal Order (which would also mean setting aside the sentence) would require something more, ie an inquiry as to whether there were any other factors which would justify an appellate court’s intervention, which may be sub-divided into a number of questions:

(a) Whether DJ Sowaran Singh had correctly found that the Appellant’s civil contempt had been proved beyond a reasonable doubt;

(b) Whether, having so found, DJ Sowaran Singh was correct in granting the Committal Order (suspended or otherwise); and

(c) Whether the (suspended) Committal Order ought to be quashed for any other reasons.

[50] There can be no doubt that the Appellant was clearly in contempt of the 5 March Order of Court , which was, as DJ Sowaran Singh observed at [11] of his Grounds of Decision (“GD”), clear and unambiguous in requiring the Appellant to move out of the matrimonial flat by 5 August 2009.

[51] The Appellant had ample time to move out, but, for reasons best known to her, considered that the 5 March Order of Court was simply a means by which she could embarrass the Respondent. In her own words (at para 17 of her affidavit dated 26 January 2010):

[52] However, the deadline of 5 August 2009 was not something which the Appellant could, at her option, disregard. A breach of the 5 March Order of Court had plainly been committed when the Appellant chose, quite freely and deliberately, not to vacate the matrimonial flat by 5 August 2009. There is no such thing as “one free breach” of an order of court (see Jordan v Jordan [1993] 1 FLR 169 at 172 (per Lord Donaldson MR)), and given that the Appellant’s motive in failing to obey the order to move out was irrelevant to the question of her liability in contempt, DJ Sowaran Singh was amply justified in finding the Appellant’s contempt was proved beyond a reasonable doubt. This was also the view arrived at by Ms Tan which, unsurprisingly, was accepted by the Respondent’s counsel. However, Ms Tan rightly pointed out that different considerations need to be examined (see [87] below) in determining whether the Appellant was in breach of the Committal Order for her failure to vacate the matrimonial flat by noon on 14 March 2010.

[53] Order 45 r 5(1) of the Rules of Court prescribes:

[54] It is clear that in the present case, the Appellant was “required by a judgment or order to do an act within a time specified in the judgment or order”, viz to move out of the matrimonial flat by 5 August 2009, and that she had “refuse[d] or neglect[ed] to do it within that time”.

[55] Nonetheless, as Arlidge, Eady & Smith points out at para 12-30:

[56] In Smith v Smith [1988] 1 FLR 179, the plaintiff obtained a non-molestation order against the defendant when their relationship ended. Subsequently, the plaintiff applied to commit the defendant for breach of the order, alleging that the defendant had come to her residence, drunkenly looked through the window and waved some papers at her. At the hearing of the application, the defendant admitted being in breach of the order but explained that he was only delivering a letter addressed to the plaintiff. The recorder hearing the application considered the defendant’s reason a “transparent excuse”, and ruled that “the normal punishment will be committal”, before committing the defendant to prison for 28 days. On appeal, Sir John Donaldson MR said (at 181):

In the same case, Balcombe LJ said (at 182):

[57] It has also been said (per Ormrod LJ in Ansah v Ansah (see [25] above) at 144) that “[c]ommittal orders are remedies of last resort; in family cases they should be the very last resort”. In Danchevsky (see [25] above), resort to committal proceedings was deprecated by the English Court of Appeal on facts which were similar to this case: a county court made an order for the sale of a house (the former matrimonial home of the parties) in which the husband had continued to live after the dissolution of the marriage. The wife had left the house, but the husband would neither leave the house nor let it be sold. On 15 May 1974, the county court ordered the husband to give up possession of the house to the wife or her solicitors by noon on 12 June 1974 and to cooperate in its sale, but the husband disobeyed the order. On the wife’s application to commit the husband to prison, he refused to give an undertaking to the court to vacate the house within three days, on the grounds that the house could be divided into two separate households (which would give greater security for the couple’s two adolescent children), and on 21 June 1974 the county court ordered the husband committed to prison for three months for contempt.

[58] On appeal, Lord Denning MR commented (at 21–22) that:

Buckley LJ added (at 22) that:

Concurring, Scarman LJ remarked (at 24) that committal:

[59] Danchevsky v Danchevsky was cited with approval by Choo Han Teck J in P J Holdings Inc v Ariel Singapore Pte Ltd (see [25] above) at [5].

[60] In this case Ms Tan submitted that as an order for possession (and a consequent writ of possession) had not been applied for, a reasonable alternative had not been explored, and therefore it may not have been appropriate for DJ Sowaran Singh to have issued the Committal Order: P J Holdings Inc v Ariel Singapore Pte Ltd at [6]. However, unlike Danchevsky, a number of features in the present appeal are apparent:

(a) Other alternatives were in fact attempted, viz the 20 July Order of Court giving the Respondent sole custody of the sale of the matrimonial flat and empowering the Registrar to execute the necessary conveyancing documents in the Appellant’s place (which was the very alternative contemplated in Danchevsky itself), as well as the 5 March Order of Court requiring the Appellant to vacate the matrimonial flat by 5 August 2009.

(b) The Appellant displayed none of the bona fides and sincerity of the defendant in Danchevsky (a factor which clearly influenced Lord Denning MR). She failed to comply with the 5 March Order of Court not because she was concerned about the welfare of adolescent children, but because she wanted to prove the Respondent wrong.

(c) An order for possession and writ of possession may well have been futile given the Appellant’s refusal to vacate the matrimonial flat on 4 January 2010 unless an order for her committal was obtained. Ms Tan sought to persuade me that a writ of possession would have been equally effective to make the Appellant move out by 14 March 2010. Ms Tan submitted that enforcement of a writ of possession, as with enforcement of an order for committal, would be by the court’s bailiff. On 15 March 2010, when the bailiff enforced the Committal Order, the Appellant did indeed vacate the matrimonial flat. Accordingly, Ms Tan reasoned that the Appellant would likewise have vacated the matrimonial flat if the bailiff had been enforcing a writ of possession instead of the Committal Order. However, the difficulty with Ms Tan’s submission is that the court would, in effect, be examining the appropriateness of the Committal Order with the benefit of hindsight, a course which Ms Tan submitted I should not adopt in determining the correct order(s) to make.

(d) Further, in Danchevsky, at the time the order for committal was made, the sale of the matrimonial home had not been concluded. It was perhaps appropriate to first enforce the order for possession by a writ of possession as a precursor to the sale. Viewed in that context, it was understandable for the English Court of Appeal to have found that the county court had failed to consider a reasonable available alternative. However, in the present appeal, the parties had already concluded a binding agreement to sell the matrimonial flat. I agree with the Respondent’s counsel that it was reasonable for the Respondent to expect that the Appellant would not have abided by an order for possession even if that alternative had been explored. After all, it was not disputed that the Appellant did inform the Respondent’s solicitors on 4 January 2010 that she would only vacate the matrimonial flat if an order for her committal was obtained, though during the hearing before me on 26 July 2010, she explained that she did not fully understand the legal implications arising from such an order.

(e) In any event, I consider that a reasonable alternative was in reality explored by way of the suspended nature of the Committal Order. Inasmuch as a writ of possession would have provided the Appellant with a final chance to comply with the 5 March Order of Court to vacate the matrimonial flat prior to the issuance of an order for committal, the same effect was achieved through the suspended nature of the Committal Order. In truth, DJ Sowaran Singh granted her a further 14 days to comply with the 5 March Order of Court.

(f) Any further delay in vacating the matrimonial flat might have jeopardised the sale and could possibly have exposed the Respondent as joint tenant with the Appellant to liability to the buyers, a consideration which did not arise in Danchevsky.

[61] In addition, there must be limits to a court’s patience when faced with a recalcitrant and obstructive litigant who is in continuous breach of a mandatory court order. In Kavanagh v Kavanagh ([1978] CA Transcript 166, unreported, but cited by The Law of Contempt, at p 584–585, and N V Lowe, “Evicting the Recalcitrant Spouse”, (1979) 43 Conv 337 at 341), Ormrod LJ commented that the wife’s attempts to obtain possession by seeking an order for possession by a writ of possession followed by a writ of restitution and finally by an order for committal was ill-advised, being a highly complex and old-fashioned property approach. Instead, Ormrod LJ recommended a different procedure (which was endorsed by Lord Denning MR) in cases where an ex-wife is attempting to sell the matrimonial home which her former husband refuses to give up possession of, as follows:

(a) Obtain a personal order together with the proper penal message against the husband that he vacate the premises by a particular date and that he be restrained from returning thereafter. However, at this stage no move should be made to commit the husband.

(b) Arrange for the contract of sale of the house to be made with vacant possession.

(c) When the sale is imminent (ie when the contract is about to be signed), if the husband is still in breach of the order, apply to the court to enforce the personal order. Ormrod LJ envisaged that in such cases the court would make an indefinite committal order pending the sale or until the spouse gives an undertaking not to interfere with the sale.

(d) As soon as the husband is in prison, sign the contract and let the purchaser into possession.

Indefinite committal orders cannot be made by the Subordinate Courts on account of s 8(2) of the SCA (in England, indefinite committal orders can no longer be made as a result of s 14 of the Contempt of Court Act 1981), but the point is that, on the facts of the present appeal, steps (a) and (b) were observed, and the Appellant was still in breach of the 5 March Order of Court despite the imminence of the completion of the sale of the matrimonial flat.

[62] Further, the sentiments expressed in Danchevsky and Ansah v Ansah do not mean that a court should hesitate to deploy committal orders if the court’s authority is continually defied and thwarted. In Jones v Jones [1993] 2 FLR 377, Russell LJ, in response to counsel’s reliance on Ormrod LJ’s dictum in Ansah v Ansah that “[c]ommittal orders are remedies of last resort; in family cases they should be the very last resort” (see [25] above), pointedly commented (at 381):

[63] In my judgment, the more appropriate test is that suggested by Butler-Sloss LJ in Re M (Minors) (Access: Contempt: Committal) [1991] 1 FLR 355, which is summarised in the headnote thus:

[64] On the facts of the present appeal, there clearly was a continuing course of conduct by the Appellant, who was deliberately and persistently refusing to obey the 5 March Order of Court, in circumstances where all other efforts to resolve the situation had been unsuccessful. As such, an order for committal was indeed appropriate, and DJ Sowaran Singh was correct to have suspended the Committal Order on the terms that he did (which he was of course entitled to do under O 52 r 6 of the Rules of Court), as it gave the Appellant a final opportunity to comply with the court’s directions, and underscored the dangerous path the Appellant was treading by unilaterally deciding when and how she would eventually vacate the matrimonial property. A suspended order for committal was, in the circumstances, the most ideal solution, for it tempered justice with mercy.

[65] Thus far, the approach of DJ Sowaran Singh had much to commend it, and the Committal Order per se was unassailable. The problem, however, lies in the fact that the Committal Order had been suspended, and the events that transpired after the Appellant’s non-compliance with the Committal Order.

[66] In her submissions, Ms Tan raised the critical point that where a suspended order for committal has been made, and the contemnor breaches the terms and conditions on which the order was suspended, the court is not obliged to impose the suspended sentence, but has a discretion to do what is just in the circumstances: re W (B) (An Infant) [1969] 2 WLR 99 at 103–104; Banton v Banton (see [46] above) at 466–467; Villiers v Villiers [1994] 1 WLR 493 at 498; Griffin v Griffin (see [22] above) at 49 and Phillips and others v Symes (No 3) [2005] 1 WLR 2986 at [51]. The discretion is unfettered – the court may impose the suspended sentence in whole or in part, or substitute a fine, or indeed impose no penalty at all.

[67] This was first decided in re W (B) (An Infant), where the contemnor had given an undertaking to the court that he would not associate or communicate with an underaged girl who had been made a ward of the court. The contemnor broke that undertaking, and was sentenced to six months’ imprisonment for contempt of court, but the sentence was suspended provided he complied with injunctions restraining him from associating or communicating with the girl during her minority. The contemnor breached the injunction, and Megarry J held that he had no discretion but to activate the suspended sentence. The English Court of Appeal unanimously allowed the contemnor’s appeal, with Lord Denning MR stating (at 103) that:

[68] It will be seen that Lord Denning MR founded the court’s discretion in such cases by drawing an analogy to the treatment of suspended sentences in the English criminal courts. Our courts, however, have no power to suspend criminal sentences: Aw Hoon v Public Prosecutor [1996] 2 SLR(R) 886. Nonetheless, as a matter of principle, it is clearly justifiable that a court has a broad discretion in sentencing a contemnor who has breached the terms of a suspended order for committal. When an order for committal is suspended on certain terms and conditions, a breach of those terms and conditions by the contemnor is, in principle, disobedience of an order of court, and therefore a further contempt. Since the court has a complete discretion in sentencing contemnors (see [56] above), it must obviously have the same discretion in sentencing repeat contemnors.

[69] In order for this discretion to be properly exercised, the court must be properly appraised of the relevant facts and circumstances surrounding the breach of the suspended order for committal. For this to be possible there must be a renewed application to lift the suspension and activate the sentence, which calls upon the contemnor to show cause as to why the suspended sentence ought not to be imposed. There must be another hearing inter partes, at which the court can then decide, after considering all the relevant facts, what the consequence of the breach should be. If this is not done, and the court is merely told ex parte that the contemnor has breached the terms of the suspended order for committal, and a warrant for committal issued forthwith, not only would the contemnor be deprived of the opportunity to be adequately heard (which would be, to all intents and purposes, a breach of natural justice), the court would also be fettering its discretion unjustifiably.

[70] It is not entirely clear if the English rules on civil procedure prior to 1999 provided for this. For instance, Nigel Fricker and David Bean, Enforcement of Injunctions and Undertakings (Jordans, 1991) at para 31.2 states:

The tone of this quotation suggests that no such procedure was in place, and unfortunately Lakin v Lakin is not a reported judgment. Although p 4 of the transcript in Lakin v Lakin does indicate that “a further application to commit” the respondent for breach of a suspended order for committal was made, it is not clear whether the application was made inter partes. In Nicholls v Nicholls [1997] 1 WLR 314, the appellant husband had given, in March 1995, a non-molestation undertaking and an undertaking not to dispose of specified items from the matrimonial home. In September 1995, he was committed to two months’ imprisonment, suspended for one year on condition he did not harass the respondent wife. This was not complied with, and in March 1996, the wife (at 317)

It is clear from the headnote that the wife’s application was served on the husband, and that he was present at the subsequent hearing at which the suspended order for committal was activated. Most notably, in Griffin v Griffin (see [22] above), the issue on appeal was whether an order for committal for contempt of court, suspended for as long as the contemnor complied with another order of infinite duration, was valid. In ruling that it was, Hale LJ stated (at 50) that any injustice such an order gave rise to could be cured, inter alia, because:

Although Hale LJ did not say so explicitly, it seems clear from the context that she had in mind an inter partes application.

[71] It would appear, therefore, that at least by 1999, the practice in England regarding suspended orders for committal was that they could only be activated after an inter partes application to the court seeking such a course of action, and, naturally, only after the consequent hearing had been conducted, whereupon the court would decide, if the breach had been proved, how to exercise its discretion in sentencing.

[72] After the introduction of the English Civil Procedure Rules 1998 (SI 1998/3132) (UK) (“CPR”) in 1999, such a procedure appears to have been specifically provided for. Part 71 of the CPR deals with “Orders to Obtain Information from Judgment Debtors”, and rr 71.2 and 71.8 provide:

[73] As Rix LJ noted in Symphony Gems (see [37] above) at [15]:

[74] It is of course true that Part 71 of the CPR deals with examinations of judgment debtors and not committal for contempt of court generally, and that our rules of civil procedure are not based on the CPR. However, in my view, there is no reason why the sort of procedure envisioned by r 71.8(4)(b) of the CPR should not also apply in Singapore when a suspended order for committal is made and then not complied with. Given the draconian nature of an order for committal, it is imperative that the contemnor be afforded the chance to be heard and to make representations as to the appropriate penalty to be imposed, if any, for breach of the terms of a suspended order for committal. The correct procedure to be adopted, therefore, where it is sought to activate a suspended order for committal, is for a fresh application to be made, by way of an amended application for an order for committal (under O 52 r 3 of the Rules of Court), and an inter partes hearing to be convened on an urgent basis, whereupon the court will be in possession of all the relevant information and can therefore properly exercise its discretion as to the correct consequence of the breach of the terms of the suspended order for committal.

[75] It should be added that once an application has been made to activate the suspended order, and an inter partes hearing convened, if a prima facie breach of the suspended order has been proven beyond a reasonable doubt by the applicant (and therefore a prima facie case of contempt made out), then, as with an ordinary hearing of an application for an order for committal, the contemnor bears the burden of convincing the court of his defence: s 105 of the Evidence Act (Cap 97, 1997 Rev Ed) (“Evidence Act”); Lewis v Pontypridd, Caerphilly, and Newport Railway Company (1895) 11 TLR 203. Given the relatively low threshold of mens rea for civil contempt (see [47] above), however, it is more likely that any exculpatory facts will only go to mitigation, which the contemnor also has the burden of proving: s 108 of the Evidence Act.

[76] On the facts of this appeal, however, this procedure was not adopted. What appears to have happened is that, on 15 March 2010, faced with the Appellant’s continuing refusal to move out of the matrimonial flat, the Respondent’s solicitors had simply applied ex parte to the Subordinate Courts for the execution of the committal order via the expedited issuance and enforcement of a warrant for committal.

[77] It also appears that the warrant for committal was summarily issued by the Subordinate Courts, without any further hearing having been conducted. In such circumstances, the court had erred in unnecessarily depriving the Appellant the chance to be heard, denying itself the opportunity of being acquainted with all the relevant evidence, and fettering its undoubted discretion by, in effect, automatically activating the suspended 30-day sentence.

[78] I should add that if, in this case, an inter partes application had been made, and at the hearing the Appellant had simply failed to appear, the court might have been entitled, in exceptional circumstances, to issue an order for her committal in her absence: see Lamb v Lamb ([25] above) and Wright v Jess [1987] 1 WLR 1076. It is not, however, necessary to consider this matter in detail as it does not arise for decision in this case.

[79] The conclusion reached thus far is that, while DJ Sowaran Singh was fully justified in imposing the suspended Committal Order, it was not correct for the Committal Order to be executed in the manner that it was, ie on an ex parte basis without any apparent exercise of judicial discretion. In other words, while the Committal Order was not flawed, the warrant for committal was.

[80] In England, there has been a substantial body of case law dealing with the question of what an appellate court ought to do when confronted with procedural errors in the form or the making of an order for committal. Whereas it was previously held (see Gordon v Gordon (1946) 62 TLR 217 at 218) that, since the liberty of an individual is at stake, strict adherence to all procedural rules was required and any departure from them, no matter how technical and minor, would result in a committal being set aside regardless of the injustice of such a course of action, the present approach is authoritatively stated in Nicholls v Nicholls (see [70] above). Lord Woolf MR, after a comprehensive review of the authorities, laid down the following guidance (at 327) for future cases:

[81] Lord Woolf MR indicated (at 325–326) that the discretion given to an appellate court in England to rectify procedural defects both prior and subsequent to the making of an order for committal had two statutory sources: s 13(3) of the AJA 1960 (see [41] above) and Ord 59, r 10(3) of the Rules of the Supreme Court (SI 1965/1776) (UK) (“RSC”) (now r 52.10 of the CPR). The discretion conferred by both statutory provisions is equally broad (see Smith v Smith (Contempt: Committal) [1992] 2 FLR 40 at 43). Section 13(3) of the AJA 1960 is broadly similar to s 37(5) of the SCJA (see [42] above), and Ord 59 r 10(3) of the RSC was in substantially the same terms as O 55 r 6(5) of the Rules of Court, which states:

[82] As such, the guidance provided by Lord Woolf MR in Nicholls v Nicholls is, in my judgment, applicable in Singapore. Order 55 r 6(5) of the Rules of Court gives the High Court the power to rectify procedural defects both in the procedure leading up to the making of an order for committal and/or after the order has been made. As Lord Woolf MR held earlier in the same judgment (at 326):

I should add that although Nicholls v Nicholls was concerned with when defective orders for committal can be set aside or amended, the guidance provided by Lord Woolf MR is also applicable to situations where, as in the present case, a warrant for committal (issued pursuant to an order for committal) is defective, and may have to be set aside or amended.

[83] Applying the guidelines in Nicholls v Nicholls, the question remains of whether, notwithstanding the fact that the suspended Committal Order was sound, the interests of justice require the defective warrant for committal to be quashed, or whether the procedural irregularities (see [76] and [77] above) can now be remedied by way of amendment or retrial.

[84] This requires consideration of whether such irregularities have caused prejudice to the Appellant (or to other parties), and whether there was a reasonable chance that the court would have acted differently if the proper procedure (see [69] and [74] above) had been followed. This is entirely in line with my ruling that the decision to be made following the inter partes hearing must ultimately be an exercise of judicial discretion.

[85] In my judgment, the interests of justice clearly require the warrant for committal (as well as the sentence it activated) to be quashed, for the following reasons.

[86] During the hearing on 26 May 2010, I directed the Appellant to file an affidavit to explain her conduct from 1 March 2010 (the date of the suspended Committal Order) to 14 March 2010 (the date when the Appellant was required to vacate the matrimonial flat). In her affidavit, the Appellant detailed the steps she took after the Committal Order was made by DJ Sowaran Singh:

(a) From 3 March to 11 March, she took preparatory steps to file her appeal against the Committal Order. She visited the Subordinate Court Registry on a number of occasions to seek assistance to prepare her appeal papers and to obtain the Notes of Evidence which were eventually collected on 10 March 2010. Finally on 12 March 2010, she filed the appeal.

(b) In the meantime, she was taking steps to rent a room so that she could move out and hand over the property to the buyers “as soon as possible”. In a text message dated 14 March 2010, she told the buyers that they might be able to move in by the following week, ie the week commencing 22 March 2010, as she was going to sign a tenancy agreement by “Monday/Tuesday”, ie 15 or 16 March 2010.

(c) In addition, the Appellant believed that since her appeal had been filed, the Committal Order was stayed and she would not be required to move out by 14 March 2010.

[87] I have no doubt that had an inter partes hearing been convened, the Appellant would have informed the court of the developments subsequent to the Committal Order. In my view, if that had been done, there was at least a reasonable chance that the court would not have issued the warrant for committal for the following reasons:

(a) The Appellant in fact took steps to find alternative accommodation. In other words, she intended and was attempting to comply with the Committal Order. In this regard, the Appellant may be criticised for leaving it very late in the day to do so. However, it cannot be overlooked that she spent a great deal of time preparing her appeal (without assistance from counsel), a course which she was entitled to pursue as of right.

(b) While her belief, however genuine, that her appeal operated as a stay of the Committal Order does not prevent her from being in contempt of court, it nonetheless reveals that she did not adopt a course of action to intentionally or deliberately flout the Committal Order.

(c) It was common ground between the parties (and accepted by DJ Sowaran Singh at [10] of his GD) that legal completion for the sale of the matrimonial flat was on 1 April 2010. It follows that the buyers were only legally entitled to vacant possession on 1 April 2010 a fact that was not disputed by the Respondent. Given that the Appellant was taking active steps to move out by the week commencing 22 March 2010 (which would still be within time for legal completion to take place), the court hearing the matter on an inter partes basis would very likely have granted the Appellant additional time to move out and would not have issued the warrant for committal immediately.

[88] As regards the issue of prejudice to the Appellant, that is a given. It is a matter of considerable regret that the Appellant has had to serve what might have been (had the correct procedure been followed) an unnecessary sentence of imprisonment, and it is unfortunate that, unlike in normal criminal cases, the quashing of her sentence will make no discernible difference as there is no criminal record to be erased, and no legal pronouncement will allow her to reclaim those 18 “lost” days. Nonetheless, quashing her sentence will ensure that there will be no administrative record that she has ever been in prison, which might otherwise blemish her employment profile or possibly inconvenience her visits to other countries (in the case of countries which require the visitor to declare any imprisonment sentence), and will in any event vindicate her reputation.

[89] Given all the circumstances of this case, therefore, the interests of justice require that the warrant for committal (as well as the sentence it activated) be set aside.

[90] Although DJ Sowaran Singh was amply justified in imposing the suspended Committal Order, the 30-day term of imprisonment was manifestly excessive in view of the Appellant’s circumstances. She was merely seeking to maximise her use of the matrimonial flat prior to legal completion on 1 April 2010. The Committal Order was partly intended to ensure the Appellant’s compliance to give up vacant possession of the matrimonial flat to enable the sale to be completed. That could have been achieved with a brief custodial sentence, which would also have registered the serious consequences arising from her contempt.

[94] Pill LJ considered (at [7]) that, while there was no difference in principle between proceedings for civil contempt and other inter partes proceedings:

[96] The law of contempt represents the court’s inherent jurisdiction to safeguard the administration of justice and uphold the rule of law by punishing those who defy its authority: Summit Holdings Ltd and another v Business Software Alliance [1999] 2 SLR(R) 592 at [25]. At the same time, the contempt jurisdiction is open to charges of arbitrariness precisely because it is a creature of the common law which, when invoked, has potentially devastating consequences for the contemnor. To strike an adequate balance between these competing tensions, it is imperative that the proper safeguards are in place to ensure that contemnors are not unnecessarily, and irreparably, punished for their transgressions. Regrettably, this appeal has revealed that the procedure for the activation of suspended orders for committal has not been adequately regulated, and it is hoped that this ruling in setting aside the warrant for committal and the consequent sentence will remedy this.

[97] On that note, I would like to record my deep appreciation to counsel for their concise and succinct submissions on this important but obscure area of the law. I especially thank Ms Tan for agreeing, in spite of her heavy commitments, to assist in this appeal as amicus curiae. Her submissions were well-researched, clear and commendably fair.