Anz Commodity Trading Pty Ltd v. Cheuk Kwan Hung

HCMP 489/2021

[2021] HKCFI 1932

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 489 OF 2021

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BETWEEN

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Before: Hon Mimmie Chan J in Court

Date of Hearing: 2 July 2021

Date of Judgment: 2 July 2021

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J U D G M E N T

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1.By order of Hon Anthony Chan J made on 3 December 2020 (“Order”), the Defendant was ordered to file and serve, within 14 days from the date of the Order, an affidavit to state whether the documents specified in the Schedule to the Order were at any time in her possession, custody or power, when she parted with possession, custody or power of those documents and what has become of the documents, and further to produce the documents in her possession, custody or power to the Plaintiff and its solicitors for inspection and to take copies.

2.The time for compliance with the Order had been extended, eventually to 8 March 2021.

3.On 13 April 2021, the Plaintiff issued proceedings by Originating Summons (“OS”) for an order of committal of the Defendant for contempt of court in refusing or failing to comply with the Order, within the time as extended.

4.On 20 May 2021, after various unsuccessful attempts had been made to effect service of the OS on the Defendant, the Court granted orders to dispense with personal service of the OS and the supporting documents, and granted leave to the Plaintiff to effect substituted service of those papers and of the notice of hearing of these proceedings (“Documents”) on the Defendant. Substituted service of the Documents was to be by personal service on any person residing at the last known address of the Defendant at Flat 2, 4^th floor, Tat On House, Po Tat Estate, Sau Mau Ping, Kwun Tong, Kowloon (“Address”), by sending the Documents by post to the Address, by inserting the Documents through the letterbox of the Address and by email to the Defendant.  The Address had been disclosed by HSBC, pursuant to an order for disclosure made by the Court on 30 April 2021, as the Defendant’s current correspondence address with the bank.

5.At the hearing on 2 July 2021, the Defendant did not appear.  Having been satisfied that the OS, notice of hearing and the documents in support of the OS have all been served pursuant to the Order for substituted service, I ordered that the hearing of the OS proceed in the absence of the Defendant.

6.I am satisfied that the Order is clear and unambiguous as to what the Defendant was required to do.  It is also clear on the evidence that the Defendant has failed to comply and has made no attempts to comply with the Order at all.  On the evidence as to the service of the relevant Documents on the Defendant, particularly in view of the fact that according to the Defendant’s bank statements, the Address remained the Defendant’s correspondence address up to at least 9 April 2021, I am satisfied that those persons occupying the Address were connected to the Defendant and were likely to bring to the Defendant’s attention the Documents which had been sent to and served at the Address.  I am satisfied that she has knowledge of the Order and of these contempt proceedings, but has chosen to ignore them.

7.On the evidence, I am satisfied beyond reasonable doubt that the Defendant was in breach in failing to comply with the Order.  There is nothing to suggest that the Defendant was not in possession, custody or control of the documents which are the subject matter of the Order, or that there was any difficulty for the Defendant to comply with the terms of the Order.  I find that the Defendant is in contempt of court for breach of the Order.

8.It is trite, that there is public interest in ensuring that orders of the Court are not flouted, and should be obeyed.  The starting and primary penalty for contempt of court in breaching an order is imprisonment.

9.In order to give the Defendant the opportunity to be heard on the sentence to be imposed for her breach of contempt found, orders were made to issue warrants for the Defendant’s arrest, so that she can be brought before the Court as soon as practicable, to be heard on the question of penalty.  Costs of the committal proceedings are reserved.

Mr Derek JY Chan, instructed by Holman Fenwick Willan, for the plaintiff

The defendant was not represented and did not appear