陳玉屏 v. Liew Shuk Fui

DCMP 720/2020

[2021] HKDC 712

IN THE DISTRICT 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: 1 April 2021

Date of Judgment: 1 April 2021

Reasons for Judgment: 16 June 2021

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Reasons for Judgment

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1.This is the sentencing hearing for the defendant to answer her contempt. At the conclusion of the hearing, I have given the order that:

a) The court would impose a sentence of 28 days’ imprisonment to be suspended for 2 years; and

b) Costs be awarded to the plaintiff on an indemnity basis summarily assessed at HK$210,000 (inclusive of Counsel’s fees item E1 of the summary bill of costs assessed at HK$60,000 and item E2 at HK$45,000).

2.I have also directed that the reasons for judgment be handed down in writing. These are the reasons.

3.The background of this case has been set out in the Judgment dated 10 September 2020 and needs not be repeated here.

4.On 18 March 2021, the defendant was brought before the court to answer her contempt.

5.During the hearing, the defendant raised various bizarre accusations (though not appeared to be against the plaintiff in particular): for example, she claimed that “gangsters” were breaking into her flat and starting a brothel, and neighbours were “shinning” radiation into her flat etc.

6.I have raised concerns about the defendant’s mental capacity to make representations on her own behalf, and whether she has the necessary mens rea in committing civil contempt of court.

7.Nevertheless, the defendant also informed the court that despite having been “taken to hospitals”, doctors have never taken steps to detain her for treatment (she said she was given medications at various times) and she appeared to be capable of looking after herself living on her own.

8.As there was no medical evidence before the court concerning the defendant’s mental state and the extent of her mental capacity, I decided to give the defendant a chance to purge her contempt. With the agreement of the plaintiff, I gave the options for the plaintiff to either comply with the court order by immediately removing all offending materials on her front gate, or to face a custodial sentence pending medical examination. In either case, the hearing would be adjourned to 1 April 2021 (either to check her compliance or to review the medical report into her mental capacity).

9.The defendant appeared to understand and readily agreed to the first option. She informed the court that she would remove the offending materials and to return to court on 1 April 2021. She also appeared to understand my warning that the situation would be reviewed at the return date and if she failed to purge her contempt, she would be put into custody pending medical examination.

10.On 1 April 2021, the defendant attended the hearing and the plaintiff confirmed that all the offending materials have been removed in compliance with the court order stated in the Originating Summons.

11.It would appear, therefore, that despite the defendant’s rather bizarre beliefs, she was quite capable of understanding the court order and the consequence of contempt of court, and had acted appropriately under the circumstances.

12.As for the appropriate sentence, the counsel for the plaintiff has taken me to the cases of Secretary for Justice v Chan Oi Yau Riyo [2020] 3 HKLRD 494 and Oriental Daily Publisher Ltd v Ma Chiu Sing [2009] 2 HKLRD 558.

13.There was a clear contempt of court but I agree that an immediate custodial sentence was inappropriate given the defendant’s old age and (albeit very belated) action to purge the contempt. However, given that she had breached the court order with attempts to evade service for more than 5 years, there was obviously a need for a suitable deterrent.

14.I would therefore consider it appropriate for the court to impose a sentence of 28 days’ imprisonment to be suspended for 2 years.

15.As for costs, it was usual under the circumstances to award costs on an indemnity basis and I saw nothing in this case to consider otherwise.

Miss Lilian Ip, instructed by M/s Huen & Partners, for the plaintiff

The defendant was unrepresented