Koo Ming Kown v. Chan Chi Mong, Hopkins

HCMP 937/2020

[2020] HKCFI 2827

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 937 OF 2020

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J U D G M E N T

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Introduction

1.On 3 June 2020, DHCJ Le Pichon ordered the Respondent to produce his original PhD certificate within 7 days and provide further and better particulars within 14 days (“the Order”).  The Respondent failed to do both.

2.The Respondent had applied for leave to appeal against another part of DHCJ Le Pichon’s order but not the Order itself.  On 16 October 2020, DHCJ Le Pichon dismissed that application.

3.With leave of this Court granted on 29 June 2020, the Applicant took out this originating summons seeking an order to commit the Respondent for contempt of court.  The Respondent had not filed any evidence in opposition.  Less than a week before this substantive hearing of the originating summons, the Respondent provided further and better particulars and purported to produce the PhD certificate for the Applicant’s inspection.

4.The Applicant sought an order (1) to dispense with personal service of the Order relating to the further and better particulars (“the dispensing order”); and (2) to commit the Respondent for contempt.

5.The Respondent did not object to the dispensing order.  He also did not contest liability and was willing to abide by an order of committal.  I therefore made the dispensing order and pronounced my finding that the Respondent had breached the Order at the hearing.

6.Here are my reasons for judgment.

Dispensing with personal service of the Order

7.Under Order 24, rule 16(3) of the Rules of the High Court (“RHC”),

“Service on a party’s solicitor of an order for discovery or production of documents made against that party shall be sufficient service to found an application for committal of the party disobeying the order, but the party may show in answer to the application that he had no notice or knowledge of the order.”

8.A sealed copy of the Order was served on the Respondent’s then solicitors on 11 June 2020.  The deadline for producing the original PhD certificate was 12 June 2020 (being 7 days from the date of the Order, excluding Saturday and Sunday, computed according to Order 3, rule 2).

9.However, Order 24, rule 16(3) did not apply to that part of the Order relating to the further and better particulars, which must be personally served on the Respondent before the due date of performance (ie 17 June 2020) to found an application for committal.

10.Order 45, rule 7, RHC provides as follows:

“(2) Subject to Order 24, rule 16(3), Order 26, rule 6(3), and paragraphs (6) and (7) of this rule, an order shall not be enforced under rule 5 unless –

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(b) in the case of an order requiring a person to do an act, the copy has been so served before the expiration of the time within which he was required to do the act.

…

(7)   Without prejudice to its powers under Order 65, rule 4, the Court may dispense with service of a copy of an order under this rule if it thinks it just to do so.”

11.The principles for dispensing with service of an order can be summarized as follows:

(1)     The purpose of Order 45, rule 7(2) is to ensure that notice of the order [that was allegedly breached] is given to the party bound. 

(2)     The power to dispense with service applied to mandatory as well as to prohibitory orders and the court has unfettered discretion.

(3)     Such power may be exercised before or after the time specified in a mandatory order. 

(4)     The absence of a formal summons and supporting affidavit is no bar to the making of a dispensing order when the party affected has adequate notice of the application and the court is apprised of the relevant facts. 

(5)     The jurisdiction should not be exercised too readily, lest what should be a dispensing power for use in exceptional cases may gradually undermine the express requirements.

(6)     There is also a power to dispense with the penal notice requirement.

(7)     The discretion must be exercised in a way which in all the circumstances best reflects the requirements of justice. In exercising the discretion, the court must not only take into account the interests of and prejudice to the contemnor but also the interests of the other parties and the interests of upholding the reputation of civil justice in general.

See Kao, Lee & Yip v Koo Hoi Yan (2009) 12 HKCFAR 830, at §69, Sir Gerard Brennan NPJ; and AXA China Region Insurance Co Ltd v Li Yu Ping [2002] 3 HKC 339, §§34, 36, 37, 43, 44 and 45, Stock JA (as he then was).

12.When applying these principles, I have taken into account the following facts:

(1)     The Order relating to further and better particulars was made pursuant to the concession of the Respondent’s counsel before DHCJ Le Pichon and such concession was stated in §§80-81 of the decision of DHCJ Le Pichon dated 3 June 2020.

(2)     The Order was served on the Respondent’s solicitors on 11 June 2020, who had acknowledged receipt.  The Respondent had not filed evidence to rebut this.  Rather, in their letter dated 11 June 2020, the Respondent’s solicitors represented that they were taking instructions on when they would produce the original certificate.

(3)     The Respondent had made an application for leave to appeal against the Order, supported by his own affidavit.  This was incontrovertible evidence that the Respondent had knowledge of the Order.

(4)     The Respondent had not filed evidence, pursuant to Order 24, rule 16(3) RHC, to show that he did not have knowledge of the Order in resisting this application for committal.

13.For the above reasons, I consider it appropriate to grant the dispensing order concerning the further and better particulars.

Service of the originating summons

14.The originating summons was served personally on the Respondent on 4 September 2020.  That was after the Respondent had, between 1 and 4 September 2020, required the Applicant’s solicitors to repeatedly attend the Respondent’s residence for the purpose of personal service, failed to answer phone calls and failed to make an appointment for accepting service.  It was clear that the Respondent was evading personal service after knowing that the documents to be served on him personally were related to committal proceedings against him.

Failure to comply with the Order

15.It is necessary to (1) construe the relevant court order to ascertain its meaning and operation, (2) then determine whether the defendant has in fact complied with the order as so construed, and (3) finally consider whether any failure to comply was accompanied by a state of mind necessary to establish punishable contempt: Hong Kong Civil Procedure 2020, §52/1/16.

16.As to the requisite state of mind in civil contempt, it is not necessary to prove that the alleged contemnor’s conduct was contumacious, ie that he directly intended to disobey the order: it is sufficient to prove (a) that he knew the facts which are said to make his act or omission a contempt, and (b) that such act or omission was not accidental: Hong Kong Civil Procedure 2020, §52/1/17.

17.The terms of the Order were simple and unambiguous.  Penal notice was given.  The Applicant’s solicitors had warned the Respondent of the serious consequences of non-compliance in their letter dated 11 June 2020.  Despite repeated reminders to comply and to purge the contempt, and DHCJ Le Pichon’s remark that the Respondent was prima facie in contempt (see §12 of the decision dated 16 October 2020 refusing leave to appeal), the Respondent continued to flout the Order.  His intention not to comply with the Order was further evidenced by a letter from his solicitors dated 4 September 2020 wherein they alleged that the application for committal was doomed to fail.

18.The Respondent was plainly aware of the non-compliance and the non-compliance was not accidental.  The Applicant had proved beyond reasonable doubt that the Respondent breached the Order, thereby acting in contempt of court.  The fact that the Respondent had purportedly complied with the Order by the date of this hearing did not undermine the breach.

Conclusion

19.For all the reasons given above, I gave the dispensing order and held the Respondent to be in breach of the Order.  The originating summons was adjourned to 14 December 2020 at 9:30 am for sentence, with one hour reserved.

20.I thank counsel for their assistance.

Mr Benjamin Yu, SC leading Mr Kelvin Leung, instructed by How & Co, for the Applicant

Ms Joyce Leung, instructed by K.M. Lai & Li, for the Respondent