Jeanny Helena Franslay v. Fung Ariel Mei Shan

HCMP 1614/2019

[2021] HKCFI 258

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1614 OF 2019

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Before:  Hon G Lam J in Court

Dates of Hearing: 3, 4 & 19 November 2020

Date of Judgment:  29 January 2021

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J U D G M E N T

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Introduction

1.This is an application by the plaintiff for an order for committal of the defendant, Ms Fung Ariel Mei Shan (“Fung”), for contempt.  The issue is whether Fung had the necessary mental element when she failed to attend court for examination, in breach of an order of the court requiring her to do so pursuant to RHC Order 48 rule 1.

2.The plaintiff’s evidence was not challenged. Fung filed an affirmation of herself and of her husband, Mr Sy Lai Yin Sunny (“Sunny Sy”) respectively, giving an explanation as to why she had not appeared in court on the dates appointed for her examination.  They were cross‑examined at the hearing of this application.

Facts

3.The plaintiff was the claimant in an arbitration in Singapore against 5 defendants, namely, (1) Sy Chin Mong Stephen (“Stephen Sy”), (2) Hung May Yee Anita (“Anita Hung”), (3) Sy Wai Shan Sandy (“Sandy Sy”), (4) Bel Trade Investment Holdings Ltd (“Bel Trade”),[1] and (5) Magic Harvest Developments Ltd, in which the plaintiff sought to recover an advance payment of US$4 million made by her in relation to an investment in a coal mine in Indonesia.  On 23 April 2018, the arbitral tribunal made an award in her favour for US$4 million together with interest and costs against the first 4 defendants.  The defendants’ application to set aside the award was dismissed by the Singapore High Court on 5 October 2018.

4.The plaintiff instituted proceedings in Hong Kong (HCCT 38/2018) against the same 5 defendants based on the award and obtained leave to enforce the award in June 2018.  The defendants applied to set aside leave for enforcement but were required, by an order of 5 September 2018, to give security.  Upon their failure to provide security, judgment was entered against the first 4 defendants in favour of the plaintiff on 2 October 2018.

5.Fung’s husband, Sunny Sy, is the son of Stephen Sy and Anita Hung, and the younger brother of Sandy Sy.  Fung was a director of Bel Trade, a Hong Kong company, between 20 April and 19 October 2018.  She was a director and sole shareholder of another Hong Kong company called Noble Regal Ltd (“Noble Regal”), which was a corporate director of Bel Trade until 28 February 2019.  Fung was also the sole director and sole shareholder of Bel Trade’s company secretary, Global Landmark Ltd, which likewise resigned as such on 28 February 2019.

6.In order to ascertain the assets of the defendants, the plaintiff obtained an order for examination of judgment debtors under RHC Orders 48 and 49B against, among others, Sandy Sy, in her capacity as a judgment debtor and separately as a former director of Bel Trade.  At a directions hearing on 14 January 2019, Sandy Sy claimed that, as a former director, she could not obtain the documents of Bel Trade and also had little information concerning that company.

7.On 23 April 2019, the plaintiff obtained an order, made by Master Kot, for the examination of Fung, in these terms (“23 April 2019 Order”):

“ IT IS ORDERED THAT FUNG ARIEL MEI SHAN, the former director of the 4^th defendant (4^th Judgment Debtor), BEL TRADE INVESTMENT HOLDINGS LIMITED, who attend before Master J. Wong of the High Court, sitting in Court at the High Court, 38 Queensway, Hong Kong Special Administrative Region on Monday, the 20^th day of May 2019 at 11:30 o’clock in the forenoon, and to be orally examined pursuant to Order 48 rule 1 of the Rules of the High Court as to what debts owing to the 4^th defendant (4^th Judgment Debtor) and further the 4^th defendant (4^th Judgment Debtor) has any and what other property or means of satisfying the Judgment entered herein on the 2^nd day of October 2018 and the said FUNG ARIEL MEI SHAN do produce any books or documents in the possession of power relating to the 4^th defendant’s (4^th Judgment Debtor’s) assets and liabilities at the time of the examination …”

The order was endorsed with a penal notice stating:

“ If, you, the within named FUNG ARIEL MEI SHAN, neglect to obey this Order within the time specified therein, you may [be] held to be in contempt of Court and liable to process of execution to compel you to obey it.”

8.According to the annual return of Noble Regal dated 25 March 2019, Fung’s address was a specified flat in Beverly Hill on Broadwood Road (“Home Address”).  Fung had given the same address in the annual return of Bel Trade dated 6 October 2018.  There is no dispute that Fung, Sunny Sy, their children and a maid were living at this address at the time.

9.According to the annual return of Bel Trade, its registered office was Units 2105‑2016, 21/F, Far East Consortium Building, 121 Des Voeux Road Central (“Office Address”).  According to its annual return, the registered office of Noble Regal was Unit 2106 of the same building, that is to say, also part of the Office Address.

10.On 30 April 2019 in the afternoon, Ms Liu, a paralegal of the plaintiff’s solicitors, Myra Li & Co (“MLC”), went to the Office Address for the purpose of serving the 23 April 2019 Order on Fung.  The receptionist, a Ms Amy Wong, told her that Fung was not in the office though she had come to the office earlier that morning.  Ms Liu told the receptionist that she had a court document to serve on Fung.

11.On 2 May 2019, at about 10:05 am, Ms Liu went to the Office Address again to serve the 23 April 2019 Order on Fung but was told again by the receptionist that Fung was not in the office.

12.On the same date at about 10:40 am, Fung called MLC and asked for Ms Li (i.e. Ms Myra Li, the principal of the firm).  Ms Li was not in the office and, instead, the Office Manager, Ms Agnes Tang, answered the call.  Fung told her that she was “Ms Fung”.  Ms Tang asked her for the firm’s reference number and which company she was calling from.  Fung replied that the firm had attempted to deliver some documents to her office premises and she wanted to know what documents they were delivering.  When Ms Tang asked again for the firm’s reference number or the name of Fung’s company, Fung said bluntly “唔通我有十間公司我要講晒十間比你聽呀”[2] and said that her office was in Far East Consortium Building.  Ms Tang then asked Fung to leave a contact number so that the handling solicitor could call her back, but Fung refused to do so, saying she would call again, and ended the call.  Fung did not call MLC again.

13.Ms Liu went back to the Office Address at about 10:55 am to try to effect personal service on Fung but was told by the receptionist again that she was not in the office.  Later that day, at 4:20 pm, Ms Liu delivered a letter (“2 May 2019 Letter”) to Fung at the Office Address (marked “Private & Confidential   To Be Opened By Addressee Only”), which sought to make an appointment for personal service of the 23 April 2019 Order, in these terms:

“ We refer to our failed attempts made on 30 April 2019 and this morning to effect personal service on you of the Order for Examination of Judgment Debtor dated 23 April 2019 (the ‘Order’) at Units 2105-2106, 21^st Floor, Far East Consortium Building, 121 Des Voeux Road Central, Hong Kong (the ‘Office Address’). We believe you have telephoned in this morning and spoke with our office manager to enquire as to what Court document we are about to serve on you.

Please let us know, by close of business tomorrow, on which date within the next 3 days (i.e. on or before 6 May 2019) and at what time you will accept personal service of the Order at the Office Address.  If we do not hear from you by such time, we shall make an application to the Court for permission to effect service of the Order on you by some other means including advertising in the press without further notice.” 

The receptionist again told Ms Liu that Fung was not in the office.  It is not disputed that Ms Liu left 2 May 2019 Letter at the reception, but there is an issue whether Fung or Sunny Sy read it.

14.On 7 May 2019 at about 8 pm, Ms Liu went to the Home Address for the purpose of effecting personal service on Fung, but no one answered the bell at the gates.

15.In the morning of 15 May 2019, Mr Kwan, an employee of a private investigation firm engaged by MLC to effect personal service on Fung, went to Beverly Hill and waited at the residents’ entrance between 6 am and 10 am, but did not see Fung.  After that, he went up to the Home Address but no one answered the door.  That evening, at about 7:45 pm, Mr Kwan went there again.  A domestic helper opened the door.  When he asked if “Ms Ariel Fung” was there, she closed the door on him.  Moments later, the maid opened the door again and, pointing at Fung’s name on the envelope in his hand, said: “This one not here. I don’t know”.  She closed the door on him, while he could hear someone talking inside.  At the end, Mr Kwan inserted a sealed envelope (marked “Private & Confidential   To Be Opened By Addressee Only”) containing a cover letter dated 15 May 2019 and the sealed copy of the 23 April 2019 Order into the letterbox for the Home Address (“15 May 2019 Letter”).  The letter read:

“ We refer to our previous unsuccessful attempts to effect personal service on you, as the former director of the 4^th Defendant/Judgment Debtor in these proceedings, Bel Trade Investment Holdings Limited now known as JV Limited, of the Order for Examination of Judgment Debtor dated 23 April 2019 (‘Order’).

We enclose herewith a further sealed copy of the Order.

Pursuant to the Order, you must attend before Master J. Wong of the High Court, 33 Queensway, Hong Kong (in Court No. 42) on Monday, 20 May 2019, at 11:30 a.m. and be orally examined pursuant to Order 48 rule 1 of the Rules of the High Court (Cap. 4A).

Your attention is drawn to the following penal notice on the back of the Order, ‘TAKE NOTICE if, you, the within named FUNG ARIEL MEI SHAN, neglect to obey this Order within the time specified therein, you may be held to be in contempt of Court and liable to process of execution to compel you to obey it.’ ” (original emphasis)

There is an issue as to whether Fung or Sunny Sy read the 15 May 2019 Letter.

16.On 16 May 2019, at about 7:15 am, Mr Kwan went to the Home Address again and rang the doorbell.  He could hear someone inside saying “Oh, what’s that?”, but no one answered the door and he left.

17.On the date appointed for the examination, 20 May 2019, Fung did not appear in court. On the plaintiff’s application, the examination was adjourned to 10 June 2019 at 11:30 am.  The order for adjournment was made by Master J Wong and drawn up and sealed, and also endorsed with a penal notice in similar terms as before (“20 May 2019 Order”).

18.Based on the evidence of the failed attempts of personal service thus far, the plaintiff applied for and, on 3 June 2019, Master Lui granted, an order for substituted service of the 23 April 2019 Order by (a) prepaid ordinary post addressed to Fung at the Home Address and the Office Address; (b) leaving at the Office Address and inserting through the letterbox for the Home Address; and (c) advertisement of a notice once in the SCMP and once in Sing Tao Daily.  These steps were duly completed by the plaintiff.  The four letters delivered pursuant to (a) and (b) above, all dated 5 June 2019 (“5 June 2019 Letters”), were in identical terms as follows:

“ We enclose, by way of service, on you as the former director of the 4^th Defendant/Judgment Debtor in these proceedings, Bel Trade Investment Holdings Limited now known as JV Limited … sealed copies of the following Orders made by the High Court of Hong Kong against you:

A. The Order for Examination of Judgment Debtor dated 23 April 2019 (the ‘Order For Examination of Judgment Debtor’);

B. The Order dated 20 May 2019 made by Master J Wong (the ‘Order dated 20 May 2019’);

C. The Order dated 3 June 2019 made by Master Lui.

Pursuant to the Order as set out hereinabove, you are now required to attend the adjourned hearing of the Order For Examination of Judgment Debtor at the High Court, 38 Queensway, Hong Kong on Monday, 10 June 2019, at 11:30 a.m. and:-

(i) be orally examined pursuant to Order 48 rule 1 of the Rules of the High Court (Cap 4A) as to what debts are owing to the 4^th Defendant (4^th Judgment Debtor) and whether the 4^th Defendant (4^th Judgment Debtor) has any and what other property or means of satisfying the Judgment entered herein on the 2^nd day of October 2018; and

(ii) to produce any books or documents in your possession or power relating to the 4^th Defendant’s (4^th Judgment Debtor’s) assets and liabilities at the time of the examination.

Your attention is drawn to the following penal notice indorsed on the back of the Order For Examination of Judgment Debtor and the Order dated 20 May 2019,

‘TAKE NOTICE if, you, FUNG ARIEL MEI SHAN, neglect to obey this Order within the time specified therein, you may be held to be in contempt of Court and liable to process of execution to compel you to obey it.’

In other words, should you fail to attend the adjourned hearing on 10 June 2019 at 11:30 a.m., you may be held liable for contempt of Court which is a serious matter punishable by, inter alia, imprisonment.” (original emphasis)

There is no dispute that these letters were received at the Home Address and Office Address respectively.  They were in fact produced by Fung as exhibits at the hearing.  Exhibit D1 was the one sent by post to the Office Address; Exhibit D2 was the one sent by post to the Home Address; Exhibit D3 was the one left at the Office Address; Exhibit D4 was the one inserted into the letterbox at the Home Address.  There is no dispute that Exhibits D1, D2 and D4 had not been opened and were only opened in court at the hearing in the presence of the parties. Exhibit D3 had already been opened when produced in court (without the envelope).  The plaintiff contends that Exhibit D3 must have been opened and read by Fung and Sunny Sy at the time of its receipt.  In contrast, Fung and Sunny Sy say that it was only opened in December 2019 (see §33 below).

19.Fung did not attend at the hearing on 10 June 2019.  As a result, the examination was adjourned without a date with liberty to restore.  It has since been fixed to take place on 3 March 2021.

20.On about 21 September 2019, Fung and Sunny Sy and their family moved to a flat in a different block in Beverly Hill.

21.On 30 September 2019, the plaintiff issued the originating summons in these proceedings, pursuant to leave granted by Mimmie Chan J on 16 September 2019. 

22.On 26 November 2019 in the afternoon, Mr Leung, a solicitor of MLC, attended the Office Address for the purpose of serving the court documents on Fung (namely, the originating summons, the notice of appointment to hear originating summons, the statement made pursuant to Order 52 rule 2(2), the plaintiff’s affirmation in support of the application for leave to apply for committal, and the order of Mimmie Chan J of 16 September 2019).  He was told by the receptionist that Fung was not in.  He left the firm’s telephone number for Fung to contact them, but Fung did not do so.  That evening, Mr Kwan, of the private investigation firm, went to Beverly Hill and waited at the residents’ entrance between 7 pm and 9 pm but did not see Fung.  He inserted an appointment letter dated 26 November 2019for Fung into the letterbox for the Home Address, proposing an appointment at the Office Address on 2 December 2019 at 11 am for the purpose of effecting personal service, and asking her to contact them by 29 November 2019.  The original has not been produced as an exhibit.  Since Fung had already moved to another block at the time, I cannot infer that she actually collected this letter.

23.On 27 November 2019, MLC sent a similar letter (dated 26 November 2019) to Fung at the Home Address by ordinary post.  This letter, which had been opened, was produced together with the envelope as Exhibit D5 at the hearing.  The postmark however showed the date of 17 December 2019, and the delay was probably caused by the mail redirection process.[3]

24.At 6:30 pm on 27 November 2019, Ms Chan, a clerk of MLC, left a similar letter (dated 27 November 2019) for Fung at the Office Address.  This letter, which had not been opened, was produced as Exhibit D6, and opened at the hearing in the presence of the parties. 

25.Fung had not contacted MLC by 29 November 2019 or otherwise as requested by these letters. 

26.On 30 November 2019, at about 7:35 pm, Mr Kwan was eventually able to approach Fung at Percival Street, Causeway Bay.  He handed her the court documents, telling her they were legal documents for her (“馮美珊小姐，呢份喺你嘅法律文件，麻煩你收咗佢”). As Fung refused to take the package from him, he touched the upper part of her body with the package.

27.On 2 December 2019, Ms Chan sent copies of the court documents to Fung at the Home Address by post under cover of a letter (“2 December 2019 Letter”), which were produced at the hearing as Exhibit D7 (already opened, and produced together with the envelope).  Ms Chan also left a set of cover letter and documents for Fung at the Office Address on the same date, which were produced as Exhibit D8 (already opened, and produced together with the envelope).

28.On 3 December 2019, the solicitors firm of Siao, Wen and Leung (“SWL”) filed a Notice to Act on behalf of Fung in these proceedings.  On 9 December 2019, an Acknowledgment of Service was filed for her.

The defendant’s case

29.There is no dispute in this case about what the orders required or that Fung did not comply with the orders.  The sole question is whether her failure to comply was accompanied by the necessary state of mind for contempt.  Fung does not dispute the evidence adduced by the plaintiff. Her case is that despite the steps taken by the plaintiff, she was not personally aware of the 23 April 2019 Order and the 20 May 2019 Order or their contents. 

30.It is said that after her marriage in 2008, Fung had been a full‑time housewife.  With three young children, her daily life revolved around housekeeping and taking care of the children.  She was not actively involved in Bel Trade or Noble Regal.  She agreed to be a director of Bel Trade as she was requested by her grandmother‑in‑law to do so and Sunny Sy assured her that it would require very little time.  She rarely went to the office of these companies, except that she would go to the Office Address with her children for a while on Saturdays if they had extra‑curricular activities nearby.

31.Between them, Sunny Sy was the one responsible for dealing with letters and documents sent to their home.  Letters sent to the Office Address for her would also be dealt with by Sunny Sy, with the assistance of Mr Syed Ahmed, who was Anita Hung’s assistant.

32.In early May 2019, Sunny Sy told her that someone from a law firm had wanted to contact her via the Office Address and wanted her to call them back.  So Fung made the telephone call to MLC on 2 May 2019 to find out why a law firm would contact her, but during the call she was not told about the 23 April 2019 Order or the hearing coming up on 20 May 2019.  She had not seen the 2 May 2019 Letter (left at the Office Address), the 15 May 2019 Letter (inserted into the letterbox at Home Address), or any of the four 5 June 2019 Letters.  Sunny Sy knew of the 5 June 2019 Letters but could not think of any reason why MLC would have anything to do with Fung.  He suspected that the plaintiff had deliberately sent Fung legal letters to harass her, and so he did not pass them to her or tell her about them as he did not want her to be unnecessarily worried and distracted.  He simply put them aside and did not open any of them at the time.  He also told Mr Ahmed to keep the letters sent to the Office Address and that there was no need to open or deal with them as they were unimportant.  For similar reasons, Sunny Sy also did not open the letter of 27 November 2019. 

33.The “turning point” was the incident when certain documents were thrusted on Fung in Causeway Bay on 30 November 2019.  Thereafter Sunny Sy suspected that MLC was probably trying to serve some documents on Fung and sensed that there was something serious.  He asked Mr Ahmed to pass him the various letters addressed to Fung in the past and, on 2 December 2019, he opened one of 5 June 2019 Letters (being the one left at the Office Address, i.e.  Exhibit D3) as well as the two 2 December 2019 Letters (Exhibits D7 and D8).  He realised what the situation was and they then sought legal advice from SWL on 3 December 2019.

The legal principles and the issues

34.To establish contempt of court, it is not necessary to show that the defendant’s conduct was contumacious; it is sufficient to prove that his conduct was intentional and that he knew of all the facts that made it a breach of the order, that is, the breach was not casual or accidental or unintentional: Kao, Lee & Yip v Donald Koo Hoi Yan (2009) 12 HKCFAR 830, §§43‑46, 53, 55.  In general, it is necessary for the plaintiff to prove not only that the defendant knew that an order had been made but also that he knew of the material terms of the order: Pang Zhengyun & another v Chow Chun Kit, the personal representative of the estate of Chow Wing Cheuk (HCMP 2251/2016, 14 September 2017), §21.  If, however, a defendant knows of the order but chooses not to acquaint himself with its terms and then acts in breach of them, he may be held liable in contempt: Re Witten (an infant) (1887) 4 TLR 39; Sino Wood Investment Ltd v Wong Kam Yin (No 2) [2004] 2 HKLRD 324, §§27-29.[4]

35.Although the 23 April 2019 Order and the 20 May 2019 Order were not personally served on Fung, it is accepted that she could nevertheless be held in contempt if they had come to her knowledge prior to the hearings.  On the other hand, it is accepted by the plaintiff that despite the order for substituted service and the steps taken pursuant thereto, it is necessary to show that Fung was actually aware of the orders before she can be found in contempt.  No reliance is placed by the plaintiff on the newspaper advertisement for this purpose.  It is submitted on behalf of the plaintiff that Fung’s case is not to be believed, and that, once Fung’s explanation is rejected, the court ought to infer that she had actual notice of the hearings from the relevant letters but chose not to attend them.

36.The factual issues are therefore: (i) whether Fung had been made aware of the 23 April 2019 Order by the 2 May 2019 Letter and the 15 May 2019 Letter, when she failed to appear at the examination on 20 May 2019; and (ii) whether Fung had been made aware of the 20 May 2019 Order (and the 23 April 2019 Order) by the opened 5 June 2019 Letter, i.e. Exhibit D3, when she failed to appear at the adjourned examination on 10 June 2019.

37.The evidentiary principles applicable in these proceedings are not in dispute:

(1)  The burden lies on the plaintiff to prove the alleged contempt beyond reasonable doubt: Kao, Lee & Yip v Donald Koo Hoi Yan (2009) 12 HKCFAR 830, §30.

(2)  Whilst the defendant may bear an evidential burden in relation to particular matters he has raised to exculpate himself, there is no legal burden on him to prove anything affirmatively: Concorde Construction Co Ltd v Colgan Co Ltd (No 2) [1984] HKC 253, 257; Ip Pui Lam Arthur & another v Alan Chung Wah Tang & another (CACV 214/2016, 16 February 2017), §4.3.

(3)  No adverse inference against the defendant may be drawn from his failure to call one or more witnesses or adduce certain evidence: China Metal Recycling (Holdings) Ltd v Chun Hei Han [2018] 1 HKLRD 455, §§36-37; Kissel v HKSAR (2010) 13 HKCFAR 27, §82.

(4)  If by cross‑examination to credit a plaintiff proves that the defendant’s evidence cannot be relied on, and he has testified that he did not do a certain act, the plaintiff does not thereby prove that he did it: Hobbs v Tinling (C T) and Co Ltd [1929] 2 KB 1, 21.  The plaintiff has to prove his case affirmatively, though this may be done by inference.

(5)  For an inference of fact properly to be made: (a) it must be grounded on clear findings of primary fact; (b) the inference must be a logical consequence of those facts; (c) beyond being logical, the inference must be “irresistible”, that is, it must be the only inference that can reasonably be drawn on the basis of those facts: Winnie Lo v HKSAR (2012) 15 HKCFAR 16, §115.  The third requirement has also been expressed in other ways, such as that “the inference must be compelling — one (and the only one) that no reasonable man could fail to draw from the direct facts proved”: Kwan Ping‑bong v R [1979] HKLR 1 at 5, or that the facts must be such as to exclude reasonable hypotheses consistent with innocence: Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387, §185.[5]

(6)  In other words, if the court concludes from the evidence that there is more than one reasonable inference to be drawn and at least one of them is inconsistent with a finding of contempt, the plaintiff fails: Daltel Europe Ltd v Makki [2005] EWHC 749 (Ch), §30.

(7)  The standard of proof beyond reasonable doubt does not mean that every piece of evidence that does not by itself establish a fact beyond reasonable doubt should be disregarded.  It is sufficient if the body of evidence relied on, viewed as a whole, satisfies the burden: Myers v R [2015] UKPC 40, §46; HKSAR v Lo Hung Kwong [2000] 3 HKC 474, 480.

(8)  In appropriate cases, proof of a fact by inference to the requisite standard may be achieved by taking various pieces of circumstantial evidence together, like cords comprised in a rope,[6] or strands in a cable,[7] or converging rays of light producing a body of illumination,[8] such that “there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion, but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of”.[9]

Discussion

38.The evidence, especially in cross‑examination, ranged over various areas but it seems to me that Mr Hui was correct in submitting that the focus must fall on the evidence relating to the letters in May and June 2019.  The other matters are peripheral and of no great probative value and will not be discussed in any detail here.

39.While Fung emphasised in her evidence that she was a housewife, she had a university degree from England, had worked before her marriage, and was at the time a committee member of the Parents Teachers Association of her son’s school (and the chairperson since September 2019). She was also a director of 17 companies in Hong Kong as at February 2020, including one that operated a kindergarten, of which she was also a shareholder.  She claimed she was asked by Sunny Sy to be directors of those companies, on which I need make no finding.  Even so, overall she was more knowledgeable, sophisticated and independent than she made herself out to be in the witness stand.

40.The attempts at service started from 30 April 2019, when Amy Wong, the receptionist at the Office Address, was told by Ms Liu, MLC’s paralegal, that she had a court document to serve on Fung.  Ms Liu tried again, though unsuccessfully, in the morning of 2 May 2019.  Amy Wong relayed the message to Fung or Sunny Sy, either directly or through Mr Ahmed. By then, as admitted by Fung, she knew that a solicitors firm was trying to deliver certain documents to her at the Office Address.  This, as she accepted in oral evidence, was something unusual.  She was concerned enough to make a call to the number left by Ms Liu to find out what it was about.  Sunny Sy also said he was surprised.

41.The fact that the 2 May 2019 Letter was left at the Office Address later that day would also have been notified to Fung or Sunny Sy either by Amy Wong or others in the office.  That letter was not produced as an exhibit.  No credible explanation had been given as to why it could not now be located.  Sunny Sy did not explain in his affirmation what happened to that letter.  In oral evidence he said it probably went to Mr Ahmed in the office and was kept by him and then put on one side.  He said he considered at that time that if MLC sent any letter to the Office Address for Fung, it was probably meant to intimidate her and so it could just be kept there for the time being.  His evidence was vague as to whether, at that point, around 2 May 2019, he had instructed Mr Ahmed to keep the letters sent by MLC to the Office Address for Fung and not to open or deal with them.  (I do not accept that he gave such instruction in any event, as explained below).  I do not accept Sunny Sy’s evidence in relation to this letter which was tantamount to speculation.  I note that his version was not corroborated by any evidence from Mr Ahmed, although I do not draw any adverse inference from the fact that Mr Ahmed was not called to give evidence.

42.The envelope was marked as being from MLC and addressed to Fung and, like the letter itself, would have been marked “Private & Confidential   To Be Opened By Addressee Only”.  As explained below, I do not accept Sunny Sy’s evidence of his belief at that time.  The letter must have been passed to Fung or Sunny Sy, and they knew it was a solicitors’ letter.  It is notable that on 2 May 2019 Fung actually called MLC and asked for Ms Myra Li, and that although she did not manage to speak to Ms Myra Li or find out anything from Ms Agnes Tang in the telephone call, she did not call MLC again even though she said she would.  I do not accept her evidence that she did not call back because she thought it was unimportant as the person on the phone could not tell her what it was about.

43.The only reasonable inference, in my view, is that the 2 May 2019 Letter was passed to Fung or Sunny Sy, and either Fung herself read it, or Sunny Sy read it and told her about it, on or shortly after 2 May 2019.  However, whilst this letter referred to an order for examination of judgment debtor that was to be served on Fung, it did not refer to the terms of the order or the date of the examination.  In itself, therefore, it would not have been sufficient to found liability for contempt.

44.There was however a further letter, i.e. the 15 May 2019 Letter.  I accept that Fung was not at home at around 10 am and in the evening of 15 May 2019, as her maid told Mr Kwan. She was attending activities of the parents teachers association.  That was why Mr Kwan inserted the 15 May 2019 Letter into the letterbox.

45.I am also satisfied beyond reasonable doubt that Fung read the 15 May 2019 Letter or Sunny Sy read it and told her about it.  Mr Hui submitted there was a reasonable doubt that the letter was lost (without being opened), but I do not accept this submission.  The letter was inserted into the letterbox for the Home Address and must have been collected either by Sunny Sy, Fung or their maid.  One could tell from the envelope that it was a letter from MLC, which Fung and Sunny Sy both knew to be a solicitors firm.  It was marked “Private & Confidential   To Be Opened By Addressee Only”.  Sunny Sy accepted he should have received the 15 May 2019 Letter but said that he was “not sure” whether he had seen it.  He said he would not open letters sent by MLC to their home at that time.  He said MLC was pursuing his mother and elder sister on behalf of the plaintiff at that time, and so any letter sent to Fung was probably just for the purpose of worrying her.  He did not know what strategy (“套路”) MLC had adopted and he felt that such letters to Fung would not be very important.  As explained below I do not accept his evidence.

46.Assuming that Sunny Sy was primarily responsible for sorting the family’s mail, I do not believe that he would have put the letter on one side without either opening it, reading it and telling Fung about it, or passing it to Fung.  Without opening the 15 May 2019 Letter, there would have been no basis for Sunny Sy to conclude that it was not important and that there was no need for Fung to see it.  If passed to Fung, it would have been opened and read by her.  The 15 May 2019 Letter had not been produced as an exhibit.  There is no credible explanation why, if it was unopened and left on one side at home, it would not have been retained and produced together with Exhibits D2 and D4 (i.e. the unopened 5 June 2019 Letters sent by post to and inserted into the letterbox at the Home Address respectively). 

47.Mr Hui submitted that if the 15 May 2019 Letter had been opened by Fung or Sunny Sy, one would expect the later letters from MLC would also have been opened by them.  Yet three of the four 5 June 2019 Letters and one of the later letters (MLC’s letter dated 27 November 2019 — Exhibit D6) were unopened.  I do not think this point goes very far.  The 5 June 2019 Letter that was opened (i.e. Exhibit D3) contained the three court orders made, including the one for substituted service, from which one could see what Exhibits D1, D2 and D4 would have been about even without opening them.  As to Exhibit D6, it was soon overtaken by the personal service effected on 30 November 2019 and the 2 December 2019 Letters each enclosing a full set of the court documents (Exhibits 7 and 8).

48.By the 15 May 2019 Letter, which described and enclosed the 23 April 2019 Order, I find that Fung had sufficient actual notice of its terms.  Her failure to attend the examination on 20 May 2019 was a breach of that order.

49.Next came the four 5 June 2019 Letters.  There is no dispute that two of them reached the Office Address, the other two reached the Home Address, and that all of them came to the notice of Sunny Sy.  He said he had asked Mr Ahmed to guess or deduce (“估計”) what the letters were about and that Mr Ahmed said that MLC wanted to intimidate them.  When asked why it was necessary to guess or deduce the purpose when one could simply open the letters and find out, Sunny Sy said he had by then already formed the view that MLC’s letters to Fung were unimportant since she was unconnected with the litigation with the plaintiff and SWL had not received any such letters.

50.I do not accept Sunny Sy’s evidence in this regard which I find incredible.  As Sunny Sy accepted, normally, he would open a letter if he could not tell its nature by looking at the envelope, and he would throw away unimportant letters.  Yet he said that, for the letters from MLC to Fung, he decided that they were “unimportant” without opening any one of them but still kept them.  I find this incredible.  I do not believe his assertion that he did not open any of the MLC letters.  I also reject his evidence that he had instructed Mr Ahmed to keep the letters sent by MLC to the Office Address for Fung and told him that there was no need to open or deal with them as they were unimportant.  Again I find this incredible.

51.The envelopes of Exhibits D1, D2, D4 and, I infer, D3, were all prominently stamped “URGENT” in red and stated the sender to be MLC, which both Fung and Sunny Sy knew to be a solicitors firm.  They arrived at around the same time or in quick succession, against the background, known to Fung and Sunny Sy, that MLC had been trying to serve certain documents on Fung the month before.  At least Sunny Sy knew that MLC had been acting for the plaintiff in the enforcement of the award in Hong Kong against the judgment debtors, including his father, mother, elder sister and Bel Trade.  The notion that even so, all these four letters were kept by Sunny Sy (with two perhaps kept in the office), and moved with them to their new flat, all the while remaining unopened, undiscarded and uncommunicated to Fung, the addressee, is in my view bizarre and incredible.

52.It is also notable that Exhibit D3 was produced to the court without the envelope.  If it were only opened in December 2019 after Sunny Sy realised there was something serious, the envelope would have been preserved in order to show that it had only just been opened, like Exhibits D5, D7 and D8 (see §§23 & 27 above).

53.Sunny Sy claimed that at the time when he received the 5 June 2019 Letters, he believed that the plaintiff had nothing to do with and no reason to go after Fung and that Fung did not have an active role in Bel Trade.  He said the litigation concerned his father, mother and elder sister, and he had thought that any legal correspondence sent by MLC to Fung would have been sent “by mistake”.  However, inconsistently, he also said that he had suspected at the time that the plaintiff had “deliberately” sent legal letters to Fung to harass her.  In any event, I cannot conceive why he had to suspect, when he could simply open at least one of the letters to ascertain what they were about. 

54.Further, the two letters sent to the Home Address were simply addressed to Fung, whereas the two letters sent to the Office Address were addressed to Fung “c/o Noble Regal Limited”.  There was no mention of Bel Trade on the envelopes.  The fact that Sunny Sy thought of Bel Trade shows that he was alive to the litigation instituted by the plaintiff in which Bel Trade was a judgment debtor.  To his knowledge, Fung had been a director of Bel Trade in 2018, and was for a time the only individual director.  In fact, according to Sunny Sy, because of the litigation, he told Fung to cease being a director of Bel Trade in October 2018.  A director or former director would be an obvious person to approach, if a judgment creditor of Bel Trade wanted information about the company for the purpose of enforcing the judgment, as Sunny Sy would know as a chartered accountant.  In addition, as Sunny Sy knew, Fung was also the sole shareholder and a director of Noble Regal, which was a corporate director of Bel Trade and its only director after Fung resigned in October 2018.  BT was left with no director at all after Noble Regal resigned on 28 February 2019.  Fung was also a director and the sole shareholder of Global Landmark Ltd, the company secretary of Bel Trade.  I do not accept Sunny Sy’s claim that he believed the letters had been sent to Fung by mistake and that he believed they were unimportant and simply a harassment which he did not pass to Fung. His explanation that he asked SWL shortly after 2 May 2019 whether they had received any letter from MLC, which was not mentioned in his affirmation and which I do not accept, does not in any event provide any basis for him to think that MLC had no reason to look for Fung.

55.On Fung’s version of events, it must have come as a nasty surprise in December 2019 that she was at the receiving end of a legal action for her committal to prison for contempt of court.  I do not find her evidence that even so, she had not then or thereafter asked Sunny Sy where the four 5 June 2019 Letters had been placed or how he eventually retrieved them, credible.  She also said that she had never asked Sunny Sy (even after these contempt proceedings were begun against her) why he had told Mr Ahmed to keep any documents sent to the Office Address for her.  She was “not clear” how Sunny Sy would deal with letters sent by MLC to her and did not seem to have been concerned to find out.  I can only say that she appears to have been incredibly nonchalant.

56.Sunny Sy’s evidence as to where 5 June 2019 Letters were placed was also vague.  It was suggested that they were piled up together with other documents on his desk but he also said that they were put into the backpack that he carried about.  Also, despite that they were, on his version, retrieved after the “turning point” when he realised there was a serious matter going on, he was not sure how he managed to retrieve the four 5 June 2019 Letters.  In his oral evidence he said that the two letters sent to the Home Address (i.e. Exhibits D2 and D4) were not retrieved by him in early December 2019 but only within about a month later, but this was wholly inconsistent with the statement in his affirmation that they were passed to SWL on 3 December 2019.

57.I also do not believe Fung’s evidence that the letters that were opened were only opened at the meeting with SWL on 3 December 2019 (which was inconsistent with Sunny Sy’s evidence that they were opened on 2 December 2019, though she said in re‑examination that she was not sure).  She could not explain, if what she said were correct, how Sunny Sy could have told her prior to the meeting with SWL (as she claimed he did) that she had been dragged into a legal case and that it was necessary to consult solicitors. 

58.In his submissions on behalf of Fung, Mr Hui stressed that Fung and Sunny Sy had produced all the letters they could find, including the opened ones.  He submitted that if they had wanted to lie, they could have suppressed Exhibit D3 and claimed it had been lost, or even gone further and said that all the letters prior to 10 June 2019 had been thrown away or lost as a result of the change of residence.  I do not consider that this assists Fung.  What is important is to gauge the evidence that has been given, not to speculate whether there are other versions with greater or less inherent probability that might have been put forward.

59.Mr Hui submitted that there was no incentive on Fung’s part not to attend the examination if she had known about it.  He submitted that attending it would not bring about any obvious adverse consequences for Fung, whereas failing to attend might expose her to serious risks including imprisonment.  He also relied on the fact that Anita Hung and Sandy Sy had responded to examination by the court at the instance of the plaintiff, and submitted that Fung had swiftly agreed to fix a date for her examination after December 2019.

60.It is to be noted, however, that the Sy family had thus far resisted enforcement of the award and judgment in Hong Kong and that nothing at all had been paid to the plaintiff in satisfaction of the US$4 million judgment.  While Anita Hung and Sandy Sy did attend their examination, the undisputed evidence is that the hearing had to be adjourned from 10 July 2019 to a date to be fixed owing to their failure to provide full and complete disclosure of the requested documents as per the order for examination.  Further, at a directions hearing on 14 January 2019, Sandy Sy had claimed that as a former director of Bel Trade, she could not obtain its documents and had little information on the company.  She was ordered to file a supplemental affirmation by 5 August 2019 explaining the efforts she had made to comply with the earlier order, but she had failed to do so.  As for the current date for Fung’s examination, it was only fixed after Fung had indisputably been personally served with the present proceedings for contempt.

61.In my evaluation of the evidence, I have taken account of the matters urged upon me by Mr Hui.  Ultimately, however, I do not think they can overcome the force of the evidence against Fung, or salvage the incredibility of the case she has put forward. 

62.Mr Hui submitted that even if this court concluded that Sunny Sy had read or otherwise known about the orders for examination of Fung, there would still be a reasonable doubt whether Sunny Sy had told Fung about them.  I am not persuaded by this argument.  This is not Fung’s case, nor is it consistent with their evidence.  It is also inherently improbable in the extreme.

63.The irresistible inference, in my view, is that of the four 5 June 2019 Letters, the one that had been opened (Exhibit D3) was opened at the time in June 2019 and that either Fung read it herself or Sunny Sy read it and told her about it.  Fung had actual adequate notice of the orders when she failed to appear in court for examination on 10 June 2019.

Conclusion

64.I find it established to the requisite standard, therefore, that Fung had, with knowledge of the 23 April 2019 Order, failed to attend the hearing on 20 May 2019, and had, with knowledge of the 23 April 2019 Order and the 20 May 2019 Order, failed to attend the hearing on 10 June 2019.  Accordingly, I find both counts of contempt proved. 

65.I give the following directions which Fung’s solicitors must ensure are brought to her attention:

(1) The originating summons be adjourned to a date to be fixed in consultation with counsel’s diaries (no later than in March 2021, with 2 hours reserved) for the purposes of mitigation, sentencing and costs. 

(2) Fung must attend the hearing; otherwise a warrant may be issued for her arrest.

(3) Fung may file an affirmation, if so advised, for the purpose of the hearing, at least 2 weeks before the hearing.

(4) Fung is to lodge and serve skeleton submissions at least 7 days before the hearing.

(5) The plaintiff may lodge and serve skeleton submissions in response within 2 days thereafter.

Mr Kenny Lin and Mr Ken Cheng, instructed by Myra Li & Co, for the Plaintiff

Mr John Hui and Mr Tommy Cheung, instructed by Siao, Wen and Leung, for the Defendant