Wong To Yick Wood Lock Ointment Ltd v. Brooklye Ltd and Another

HCMP 1496/2019

[2021] HKCFI 157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1496 OF 2019

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BETWEEN

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Before:  Hon Wilson Chan J in Court

Date of Hearing:  18 January 2021

Date of Decision:  18 January 2021

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D E C I S I O N

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1.This is an application by the 2^nd defendant pursuant to Order 52, rule 8(1) of the Rules of the High Court for an early discharge from his sentence of 6 months’ imprisonment pursuant to an order for committal pronounced by this court on 23 September 2020. The 2^nd defendant was arrested by the bailiff on 18 November 2020.

2.The purpose of the jurisdiction to punish for civil contempt and the principles for discharge were explained by Watkins LJ in Enfield LBC v Mahoney [1983] 1 WLR 749, at 757H-758C:

“… the reasons for a committal to custody for a civil contempt are twofold. First, to punish the contemnor for disobedience of an order of the court; secondly, to attempt to coerce him to comply with the order. Once a contemnor has been sufficiently punished for disobeying a court order he should not, in my judgment, be punished further for continuing to do the same thing—even though in a sense this shows that he is continuing to be contumacious. Given therefore that the court should not punish twice for the same offence, when an application is made for a contemnor to be released during the fixed term of custody imposed, the first question for the court must be whether the contemnor has been punished enough for the contempt for which he was sent to prison. If, in the view of the court, he has not, then probably the court will not release him. If, on the other hand, at the time of such an application the court takes the view that he has been punished enough for the original contempt, then the only remaining justification for continuing to keep him in custody is that this may still have a coercive effect and make him comply with the original order. If it is quite clear that he is not going to comply however long he stays in custody, then provided, as I say, that he has been punished enough, there is in my view no justification for continuing to keep him in prison.” (Emphasis supplied)

3.In his Affirmation in support of the application dated 6 January 2021, the 2^nd defendant informed the court that by a consent order made on 30 November 2020 in DCCJ 5091/2019, it was ordered that the 1^st defendant herein do pay the plaintiff the total sum of HK$211,381.46 (the “Profit Sum”) in full and final settlement of the profits payable under paragraphs 6 and 7 of the Judgment dated 14 November 2017.

4.Mr Colin Shipp, counsel for the plaintiff, has confirmed that the Profit Sum plus interest has been paid to the plaintiff’s solicitors on 15 January 2021.  Mr Shipp further fairly accepts that the payment of the Profit Sum is in full and final settlement of the plaintiff’s claim under paragraphs 6 and 7 of the Judgment.

5.In the circumstances, I accept that the 2^nd defendant has effectively purged his contempt.  By entering into the consent order, the plaintiff is clearly prepared to accept the Profit Sum in full and final settlement, instead of insisting on the enforcement of the disclosure orders under paragraphs 3 to 5 of the Judgment.

6.The 2^nd defendant has been in custody since 18 November 2020.  Taking into account remission, he has effectively already served half of his 6-month sentence.

7.Taking into account all the circumstances of this case, and despite the finding in my Decision on 23 September 2020 that the contempt was deliberate and contumelious, I am satisfied that the 2^nd defendant has been punished enough for the contempt for which he was sent to prison, and there is no justification for continuing to keep him in prison.

8.Accordingly, I order the discharge of the 2^nd defendant immediately.

9.I shall now hear the parties on the question of costs.

Mr Colin Shipp, instructed by Messrs William W L Fan & Co, for the plaintiff

Ms Eunice Yung, instructed by Messrs Jesse H Y Kwok & Co, for the 2^nd defendant