Yeung Lin Mui v. Chu Kwok Wai

HCMP 1307/2018

[2020] HKCFI 2741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1307 OF 2018

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SENTENCE FOR CONTEMPT

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1.By a Judgment delivered on 20 October 2020 (“Judgment”), this court finds the Defendant guilty of civil contempt ie between 19 June and 20 July 2018, in that he had repeatedly and without justification refused to allow Vision’s employees to count the cash received by the Company’s drivers. The Defendant’s refusal and obstruction rendered Vision unable to record all revenues and income received by the Company as mandated by paragraph 1 of the Order dated 8 May 2018 as amended by the Variation Order dated 11 June 2018. The abbreviations in the Judgment are adopted here.

2.This is the occasion for sentence. 

3.The legal principles in sentencing for contempt of court have been recently summarized in Bruno Arboit v Koo Siu Ying & Anor unrep, HCMP 2749 of 2012, 18 May 2016, Au-Yeung J at [2]-[8]:

“2. The starting-point is to acknowledge that contempt of civil court orders is a serious matter and that court orders are made to be obeyed. A prime consideration of the court in sentencing contempt is to ‘signal importance of demonstrating to litigants that the orders of these courts are to be obeyed’. By ‘litigants’, it is clearly referring to litigants in general and not just the contemnor himself. See Questnet Limited v Wilfred Royce Lane, HCA 1475/2006, Chu J (as she then was), 23 June 2008 (on sentence).

3. The object of the sentence is both to punish conduct in defiance of the court’s order and to serve a coercive function by holding out the threat of future punishment as a means of securing the protection which the order was primarily there to do: Crystal Mews Ltd v Metterick & ors [2006] EWHC 3087, §8, Collins J; re Barrell Enterprises [1973] 1 WLR 19, at 27C-D, English CA. The court has to balance the 2 objects.

4. The sentence for contempt may range from a fine to a term of imprisonment. The UK Contempt of Court Act 1981 imposes a maximum term of 2 years’ imprisonment but Hong Kong does not have that statutory limit.

5. Imprisonment should be regarded as a sanction of the last resort. Any custodial sentence should be as short as possible consistent with the circumstances of the case. Willwin Development (Asia) Co Ltd v Wei Xing, HCMP 2946/2014 (unreported, 16 November 2015), B Chu J, §4(f); CMA CGM v Ng Chip Choi Maurice, HCMP 2988/2014, 12 March 2015, Au-Yeung J, §24(1).

6. The court may suspend a term of imprisonment for such period or on such terms as the court deems fit: CMA CGM v Ng Chip Choi Maurice, §24(2); Order 52, rule 7. This is an ‘absolute discretion’ but it would be difficult to think of circumstances where a suspended order should be made when nothing further remains to be done to comply with the order: Hong Kong Civil Procedure 2016, Vol 1, §52/7/2.

7. The court will consider if there are:

(a) Aggravating factors: Hao Xiaoying v Wong Yiu Lam William & Ors, HCMP 1968/2014, 2 March 2015, Anthony Chan J;

(b) Mitigating factors: Ge Transportation (Shenyang) Co Ltd v Lu Jinxiang, HCMP 1792/2013 (unreported, 22 January 2014) (DHCJ Marlene Ng); and

(c) Acts to purge the contempt, ie acts to atone for a contempt, eradicate it or cleanse it of its previous ill-effect which, in the case of a mandatory order, may be fulfilled if the contemnor thereupon does the act or causes it to be done: CJ v Flintshire BC [2010] EWCA Civ 393, at §6.

8. Relevant factors (which are not exhaustive) include:

(a) The nature of the order and breach in question, and the extent of the breach: Questnet Limited v Wilfred Royce Lane.

(b) Whether the contempt was contumacious or unintentional, the reasons, motives and state of mind: Hong Kong Civil Procedure 2016, Vol 1, §52/9/2.

(c) Whether the claimant has been prejudiced by virtue of the contempt and whether the prejudice is capable of remedy: Crystal Mews Ltd v Metterick, §13.

(d) Whether the contemnor appreciates the seriousness of the deliberate breach: Crystal Mews Ltd v Metterick, §13.

(e) Whether the contemnor has cooperated: Crystal Mews Ltd v Metterick, §13.”

Sentence

4.In mitigation, Mr Cheng urges this court to impose a fine and that his client is able to pay between HK$10,000 and HK$100,000.

5.In arriving at the appropriate sentence, this court has taken into account the fact that the Defendant’s repeated acts in obstructing Vision from performing the tasks under paragraph 1 of the Orders were deliberate and notwithstanding various warning letters from the Plaintiff’s solicitors dated 20, 25 and 28 June and 17 July 2018.  While, according to the Statement, the duration in which the contempt persisted is relatively short, the Defendant’s obstructive acts only ceased after the Plaintiff had applied for leave to make an application for committal against him. 

6.In cases like this, there is always a delicate balance to be maintained between the strong public interest in ensuring Court Orders are not flouted and the evaluation of the individual circumstances of each case.  After considering all that has been placed in evidence before me, including the personal and financial circumstances of the Defendant, I have come to the view that a financial penalty as opposed to a term of imprisonment would be appropriate. 

7.When it comes to a fine, the means of the contemnor will need to be taken into account. In this regard, the Defendant has filed his 4th affirmation on 23 October 2020 which suggests his only bank account balance was HK$18,000 odd as at 20 October 2020 whereas his monthly contribution to the household living expenses and mortgage instalment was in the sum of HK$50,000. He also managed to apply for a personal loan of HK$100,000 for the purpose of maintaining the business of the Company in July this year.

8.In this court’s view, the Defendant is less than forthcoming in disclosing his means in his 4th affirmation. In answer to questions from the bench, the Defendant admitted that he earned around HK$40,000 to HK$50,000 a month for helping others in the construction material business. Obviously, the Defendant’s means is not fully reflected in his personal bank passbook.

9.In these circumstances, it would be appropriate for this Court to Order the Defendant Chu Kwok Wai to pay a fine in the sum of HK$100,000, to be paid within 21 days from today. 

10.As far as costs are concerned, it is normal in contempt proceedings that costs are ordered on an indemnity basis: Lau Yee Ching and Wong Tak Kwong & Ors unrep, CACV 385 of 2005, Rogers, Woo VPP, Le Pichon JA, 3 March 2006; Secretary for Justice v Yuen Oi Yee Lisa unrep, HCMP 2390 of 2008, 27 October 2010, Chu J (as she then was).  This court can see no reason why that should be departed from in the present case.  I therefore order that the costs of these proceedings, including the costs of the application for leave to make the application for an order for committal and all costs reserved, if any, be paid by the Defendant to the Plaintiff forthwith on an indemnity basis, to be taxed if not agreed.

The Plaintiff appeared in person

Mr Sky Cheng instructed by S T Poon & Wong, for the Defendant