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13.33Lord Denning, in Danchevsky v Danchevsky,1319 enunciated the principle that if there was a reasonable alternative method of enforcing an order which did not involve prison, then that should be used.  Contempt is only useful if the offender is still within the jurisdiction and the original order has been served prior to the application for committal.  By the time this is done, he may have already left the jurisdiction with the child.

Powers to detain for contempt

13.34It would seem that there is a common law power of arrest to enforce the order of committal which allows the officer to arrest and bring the offender to prison.  Despite this, the English Court of Appeal, in Re B (Child Abduction: Wardship: Power to detain),1320 stressed the lack of powers of the court to deal with child abduction cases in the absence of a finding of contempt.

13.35 A person must have had the original court order served on him prior to the application for committal for contempt.  There does not seem to be a limit on the term of imprisonment that the District Court and the Court of First Instance may impose, though section 21A of the High Court Ordinance (Cap 4) provides for committal for a maximum of three months for enforcement of a civil claim for the payment of money.  Any person who breaches an injunction may be committed for contempt.  A person with knowledge of the injunction, who assists in its breach, is also guilty of contempt.1321

Powers of arrest

13.36In Hong Kong it would seem that the police only have the power of arrest if the person has already been ordered to be committed for contempt.  Otherwise, the police cannot stop or detain a person unless he acts in a suspicious manner and is suspected of having committed an offence, or has actually committed the offence.1322  

13.37The police have no power to enforce an injunction as it is a civil remedy.  The only other possibility is that the police may have a power of arrest if a breach of the peace is committed when the ex parte order of the court, whether it is wardship or an injunction, is being served on the respondent.

Power to detain

13.38The Immigration Department can only prevent a child being removed from Hong Kong when they have a copy of the order prohibiting removal in their hands.  They cannot stop someone leaving Hong Kong if no order prohibiting removal has been made, provided he has a valid travel document.  Presumably they use their powers under section 26 of the Immigration Ordinance (Cap 115) to detain

1319 [1974] 2 All ER 561.

1320 [1994] 2 FLR 479.

1321 Seaward v Paterson [1897] 1 Ch 545.

1322 Section 54 of the Police Force Ordinance (Cap 232).

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