Cheung Kam Biu and Others v. 何華蘭

DCMP 1365/2021

[2021] HKDC 1013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO.1365 OF 2021

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Coram:  His Honour Judge Harold Leong in Court

Date of Hearing:  17 June 2021

Date of Judgment: 17 June 2021

Reasons for Judgment:  26 August 2021

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REASONS FOR JUDGMENT

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1.The 1^st to 7^th plaintiffs applied for an order for committal against the defendant for non-compliance to a mandatory injunction ordered by Her Honour Judge Phoebe Man in her judgment dated 18 August 2020 (DCCJ 5350 of 2016) for demolition, within 35 days, of an unauthorised shop and building works in the bottom landing of the staircases and the common areas adjacent to a corridor of 115 and 117 Chuen Lung Street, Tsuen Wan, New Territories (“the Shop”).

2.The defendant should have demolished the Shop by 22 September 2020 but failed to do so.

3.The plaintiffs’ solicitors obtained a sealed judgment together with endorsement of a penal notice on 28 October 2020 and personally served this on the defendant on 8 December 2020.

4.On 5 May and 11 May 2021, the plaintiffs’ solicitors attempted to serve the Originating Summons but failed.

5.From the Affirmation of Cheung Kam Wing dated 13 March 2021, it was clear that the defendant had all along failed to comply with the judgment. Evidence showed that the Shop was still conducting business.

6.The defendant attended the first hearing on 7 June 2021. She did not deny the non-compliance. She claimed that she was appealing against the judgment, but did not dispute it when it was pointed out that the appeal application had long been dismissed. She also claimed that she was in discussion with some of the plaintiffs.

7.Of course, none of the reasons advanced by the defendant would constitute a defence for contempt of court.

8.The court therefore indicated that the defendant might be sentenced to imprisonment but gave an order, amongst others, to adjourned the hearing to 17 June 2021 to allow a chance for the defendant to purge the contempt.

9.On 17 June 2021, the defendant was represented by counsel Mr. Leung who stated that the defendant admitted to the charge of contempt of court.

10.The only matter remaining is sentencing.

11.The plaintiffs’ counsel, Ms. Ip, submitted in her skeleton submissions (supported by photographs) that although there were attempts of the defendant in demolishing the Shop, the signboard and various junk still remained.

12.Mr. Leung submitted that these have been removed overnight before the hearing and this was accepted by those instructing Ms. Ip. The court would therefore accept that the contempt has been purged.

13.In mitigation, Mr. Leung stressed that speed of the purge should be a consideration, in particular that the defendant contacted the contractors to clear the signboard and other junk overnight on a public holiday when she became aware of the remaining signboard and junk (Bruno Arboit v Koo Siu Ying [2016] HKEC 556). Mr. Leung also expressed the deepest apologies from the defendant and asked for a suspended imprisonment sentence.

14.Ms. Ip also expressed that the plaintiffs would not object to a suspended sentence of imprisonment, but would ask for a longer period of suspension in order to be certain that the defendant would not return to the site.

15.It is trite that:

“The purpose of the law of contempt was to prevent interference with the due administration of justice. The importance of demonstrating to litigants that orders of the court were to be obeyed was a prime consideration in sentencing contempt. Subject to mitigating factors, the normal penalty for breaches of injunction orders was imprisonment measured in months.” (Secretary for Justice v Cheng Lai King [2020] HKCFI 2687)

16.After considering all the circumstances, I would think that the appropriate sentence would be an imprisonment for a period of 14 days, suspended for 12 months.

17.As for costs, there was no dispute that the defendant should pay the costs of these proceedings to the plaintiffs on the indemnity basis. I have reviewed the plaintiffs’ Statement of Costs and heard submission by both sides, and I have summarily assessed the costs at HK$132,040.50.

Order

18.I therefore make the following order:

a) The defendant is found guilty of contempt of court and is sentenced to 14 days of imprisonment, suspended for 12 months;

b) Costs of the proceedings be to the plaintiffs on the indemnity basis summarily assessed at HK$132,040.50 to be paid within 14 days.

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

Mr. Leung Sze Lum, instructed by M/s K.C. Ho & Fong, for the defendant