陳玉屏 v. Liew Shuk Fui

DCMP 720/2020

[2020] HKDC 779

IN THE DSTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 720 OF 2020

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Coram: His Honour Judge Harold Leong in Court

Date of Hearing: 10 September 2020

Date of Judgment: 10 September 2020

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JUDGMENT

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1.This is an application for an order of committal against the defendant on the grounds that she had continued to breach an injunction granted by Deputy District Judge Timon Shum on 5 June 2015.

2.The injunction, as stated in an Amended Order, in summary, restrained her from putting up or displaying various disturbing objects, messages and drawings on the entrance of Flat B7, 14/F, Block B, Tak Bo Garden, No. 3 Ngau Tau Kok Road, Kowloon (the “Premises”), from making loud noises within the Premises and pouring liquid in the public areas where the Premises was situated etc.

3.The Premises was the defendant’s last known address.

Procedural history

4.There was some procedure history in this case which is not relevant to the current application which I need not repeat here. Suffice to say that leave to apply for order of committal against the defendant was granted on 8 August 2019. Due to the current Covid-19 situation, there was further delay in the hearing.

Service of documents

5.It is of note that the defendant has a long history of evading personal service: there has been a previous order from the Court of Appeal for personal service to be dispensed with.

6.The affirmation of the clerk of the plaintiff’s solicitors, Mr Ho Kuen Lam (as I translate), documented three attempts to effect personal service of the originating summons and supporting documents on the defendant. It is clear that the defendant has been evading personal service and I am satisfied that the plaintiff has exhausted all reasonable attempts to do so.

7.Instead, the plaintiff has attached the relevant documents to the entrance gate of the Premises on one occasion and inserted them into the post box of the Premises on another. Under the circumstances, I am satisfied that the defendant is well aware of today’s hearing as well as its intent and purposes.

8.I would therefore order that the personal service of the originating summons and supporting documents be dispensed with and the hearing should proceed.

Order of committal

9.In order to obtain an order of committal, the plaintiff must prove its case to the criminal standard.

10.The 2^nd and 3^rd Affirmations of the plaintiff, including various photographs exhibited, clearly documented a continual breach of the injunction since it was made. Such breaches include a continual display of disturbing messages and objects (including on one occasion, what appeared to be used face masks) at the entrance of the Premises. There were also occasions when loud noises were made within the Premises, and vile smelling liquid poured outside the entrance of the Premises.  

11.I am therefore satisfied that the defendant has continued to breach the injunction and, as such, I held that the court should make an order of committal against the defendant.

12.However, the defendant has failed to attend today’s hearing so the court did not have the opportunity to hear her case and explanation.

13.As such, I will not impose any punishment at this stage but will instead issue a warrant of arrest requiring the Chief Bailiff and his assistant and the Commissioner of the Correctional Services and the Commissioner of Police and each and every one of his officers in Hong Kong to arrest the defendant so that she may be held in custody until such time as she may be brought before this court to answer for her contempt.

14.Further, as I do not have the opportunity to hear the defendant’s case, I will not impose any order for costs at this stage. I order that the costs of today’s hearing be reserved.

Miss Lillian Ip, instructed by Huen & Partners, for the plaintiff

The defendant is not represented and did not appear