Chau Pui Ngai v. Chau Pui Fung

HCMP 186/2021

[2022] HKCFI 433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 186 OF 2021

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Between

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Before:  Hon Alex Lee J in Court

Date of Hearing:  7 February 2022

Date of Judgment:  11 March 2022

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J U D G M E N T

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Introduction

1.This is the Plaintiff’s application for an order of committal against the Defendant for contempt of court, leave[1] for the application having been obtained on 26 January 2021 and the Originating Summons issued on 9 February 2021.

2.The orders sought by the Plaintiff are as follows:

(1)  that the Defendant be committed to prison for his contempt of court in breaching the two orders[2] made by this Court in HCA 298 of 2017;

(2)  that leave be granted for the issue of a writ of sequestration against the property of the Defendant for his contempt;

(3)  that the Defendant do pay to the Plaintiff the costs of and incidental to these proceedings on full indemnity basis; and

(4)  any other orders the court thinks fit.

3.The Defendant is absent from the hearing of the present application.  In fact, he has been absent for each and every hearing of the writ action (HCA 298/2017)  taken by the Plaintiff (“the High Court Action”)  which eventually leads to the present application.  Since proper notice (by way of substituted service)  of the present application has been given to the Defendant, I infer and am satisfied, in the absence of any evidence to the contrary, that the Defendant is aware of the present application and that he deliberately chooses not to appear before the court and has no intention of opposing the present application.  In the circumstances, I grant leave to the Plaintiff for the present hearing to be proceeded with the application in the Defendant’s absence: see Hong Kong Civil Procedure 2022, at [52/6/4]. 

Factual background

4.Briefly stated, the factual ground of the High Court Action which leads to the present application is as follows.  The plaintiff and the two defendants in the High Court Action, D1 and D2 (the Defendant), are brothers.  The subject matter of P’s claim is an apartment under the Home Ownership Scheme (“the Property”)  purchased in the Plaintiff’s sole name with a mortgage loan of which he was the borrower.  P had financial assistance from D1 in the repayment of part of the mortgage loan.  However, it is P’s pleaded case that any cause of action that D1 may have against him for repayment has already been time-barred.

5.It is also the Plaintiff’s pleaded case that the Property was first occupied by his mother until her passing away in June 2006.  After that, since March 2008 the Property was occupied by D1 with P’s consent.  Upon the discharge of the mortgage in about February 2014, the Plaintiff wanted to sell the Property and he asked D1 to vacate the premises and D2 to return the title deeds.  However, D1 wrongfully refused to leave, claiming a 70% interest in the Property on the basis that he had helped P in the repayment of the mortgage loan.  As regards the title deeds of the Property, it is the Plaintiff’s pleaded case that D2 has wrongfully refused to return the same to him.  Based on the above, the Plaintiff took out the High Court Action against D1 for vacant possession and mesne profits of the Property; against the Defendant for the return of the title deeds; and damages (to be assessed).

Legal and procedural history

6.As regards the legal and procedural history, the following is taken from the written submissions of Mr Cheung, which I have checked against the relevant affidavits and exhibits and which I gratefully adopt with suitable adaptations:

(1)  On 9 February 2017, the Plaintiff commenced the High Court Action [3] by writ.  Among other things, the Defendant was asked to deliver up the titled deeds and documents relating to the Property that are in his or his agent’s possession, custody or power. 

(2)  On 26 September 2017, this court granted a judgment in default[4] against the Defendant for the return of the title deeds and documents relating to the Property and made the responding order (“the 2017 Order”)[5] accordingly.

(3)  The Plaintiff had made several attempts, through his solicitors/process server, to effect service of the 2017 Judgment and the 2017 Order on the Defendant at his last known address (“the Last Known Address”)[6]:

(i)  on 30 November 2017, Chan, a clerk of the Plaintiff’s solicitors, sent to the Defendant the 2017 Judgment and Order by post to the Last Known Address.  The said documents have not been returned by the Post Office through the dead letter service[7];

(ii)  on 15 January 2018, at 3 pm, Chan attended the Last Known Address for the purpose of attempting service.  However, nobody answered the door[8]; and

(iii)  on 25 January 2018, at 9:30 am, Chan attended the Last Known Address again for the purpose of attempting service and again no one answered the door.  The attendant of the building, however, confirmed that the Defendant was living there at the time[9].

(4)  In view of the aforesaid, on 18 October 2018 this court made another order, among other things, for substituted service of the 2017 Order and for compliance with the 2017 Judgement within 28 days thereafter (“the 2018 Order”)  (collectively as “the Orders for Delivery Up”).

(5)  On 5 December 2018, the Plaintiff’s solicitors effected substituted service and served the Orders for Delivery Up (with penal notice)  to the Defendant.  On that occasion, Chan had taken the caution of further enquiring with the attendant and it was confirmed that the Defendant was still living there[10].

(6)  On 26 January 2021, the Plaintiff obtained ex parte leave of this court to apply for committal against the Defendant[11].

(7)  After that, the Plaintiff had made several attempts, to effect personal service of the Originating Summons of these proceedings filed on 9 February 2021 on the Defendant at the Last Known Address[12]:

(i)  on 10 March 2021, Chan attended the Last Known Address with an attempt to effect personal service of the Originating Summons.  No one answered the door.  He further enquired with the attendant and showed him the photograph of the Defendant.  The attendant said that the Defendant resided there but he only returned home at irregular hours with a possible intention to avoid meeting any people from the Plaintiff’s solicitors;

(ii)  on 15 March 2021, Chan attended the Last Known Address again with an attempt to effect personal service of the Originating Summons.  Again, no one answered the door;

(iii)  on 14 April 2021, Chan sent a copy of the Originating Summons by post with a letter notifying the Defendant that the solicitors’ representative would visit on 22 April 2021 at 8 pm to service the Originating Summons to him personally and invited him to arrange a convenient time and venue for him to collect the Originating Summons.  On 22 April 2021 at 8 pm, Chan attended the Last Known Address again to attempt personal service of the Originating Summons on the Defendant. Nevertheless, no one answered the door; and

(iv)  on 5 August 2021, Chan attended the Last Known Address again with an attempt to effect personal service of the Originating Summons. Again, there was no one answering the door.  Upon further enquiry with the attendant, Chan was told that the Defendant has been a resident at the Last Known Address but he has not been seen for the past months.

(8)  On 14 September 2021, upon the Plaintiff’s application, this court ordered[13], among other things, that: (1)  time extension be granted to the Plaintiff for him to issue a Notice of Appointment to hear the OS; and (2)  substituted service of the OS and the Notice of Appointment and the personal service of the same against the Defendant be dispensed with.

(9)  On 20 September 2021, the Plaintiff through his solicitors issued a Notice of Appointment to hear the OS in compliance with the aforesaid September 2021 Order[14]. Substituted service of the OS and the Notice of Appointment was duly effected in by (1)  inserting the said court documents into the Defendant’s letter box on 6 October 2021; and (2)  advertisement in newspapers on 11 October 2021[15].

(10)  On 18 October 2021, Chan served the Defendant with the court’s hearing material for the call-over hearing by inserting the same into the letter box of the Last Known Address.  On that occasion, the attendant informed Chan that the Defendant had moved out around two months ago and that a new tenant had in around one month ago.  

Relevant legal principles

7.As pointed out by Mr Cheung, the relevant principles are succinctly summarised in the recent judgment of Coleman J in Trends Trade Hong Kong Limited v Artur Shevchenko[16]:-

“39. It is trite that the rules and conduct for contempt proceedings are addressed in Order 52. There are also relevant provisions to be found in Order 45, which provides for enforcement of court orders in respect of which contempt is alleged, including as to personal service and endorsement of penal notices.

40. Civil contempt is in the nature of public law proceedings. Therefore, the proceedings transcend whatever private disputes the litigants may have among themselves. The Court has a substantial interest in seeing that its orders are obeyed. The power to commit for contempt is recognised as the prevention of interference with the due administration of justice.

41. The burden of proving contempt is on the plaintiff, and the defendant’s contempt must be proved beyond reasonable doubt. The defendant does not have to prove anything affirmatively; at most, there is an evidential burden. Proving that the defendant has lied is not sufficient. There must be some further evidence to incriminate him than just lies.

42. On the contempt application, there is a three-stage test. First, it is necessary to construe the Court’s order, to ascertain its meaning and operation. Second, it is necessary to determine whether the defendant has in fact complied with the order. Third, it is necessary to consider whether any failure to comply was accompanied by the state of mind required to establish punishable contempt.

43. Where it is said that the alleged contemnor has failed to produce documents as ordered, it is crucial to determine that the person did have the documents in his possession, custody or power at the time of the order.

44. The Court will not enforce an order in contempt proceedings when the order is ambiguous or unclear in a material respect. The person affected by the order must know with complete precision what he is required to do or abstain from doing.

45. It might also be added that contempt proceedings should be pursued only as a matter of last resort.  There may be cases where it is necessary and appropriate that the court should exercise its power in the punishment of contempt to achieve compliance with its order, but there are other cases where lesser options should be explored before resorting to the draconian power of committal.  In a case where the alleged contemnor can demonstrate he has been making genuine and serious efforts to comply with the order, and that non-compliance by a certain deadline is due to circumstances beyond his control, it would be rare that the court will deem it appropriate to consider the option of committal. ”

8.It is well-established that in proceedings for contempt, the burden of proof lies with the plaintiff and that the standard of proof is that of the criminal standard, ie, beyond reasonable doubt: Jeanny Helena Franslay v Fung Ariel Mei Shan[17].  It is also well-established that liability for civil contempt does not depend on a contumacious intent.  To establish a contempt of court, it is sufficient to prove that the contemnor’s conduct was intentional and that he knew of all the facts which made it a breach of the order.  It is not necessary to prove that he appreciated that it did breach the order: see Kao, Lee & Yip v Donald Koo Hoi Yan[18].

9.In the present case, the Orders for Delivery Up (with Penal Notice), the Originating Summons and the Notice of Appointment were all served by way of substituted service.  In this regard, I note that the rule that requires personal service of an order before a writ of attachment can be issued for disobedience of it is subject to an exception where the order has come to the knowledge of the person sought to be attached and he evades service of it: Kistler v Tettmar[19].  See also Secretary for Justice v Persons Unlawfully and Wilfully Conducting Etc[20], in which Coleman J held that the court is entitled to adopt a mode of service that can reasonably give rise to an expectation that a defendant is aware of an order made.

Affirmation evidence

10.For the purpose of the present application, the Plaintiff adopts his affirmation filed in the High Court Action[21] as his evidence-in-chief.  By way of supplement, he testifies that after the full repayment of the mortgage, he entrusted the title deeds to the Defendant to be put in the safe deposit box of the mother-in-law of the latter for safe custody.  Afterwards, the Defendant refused to return the title deeds at the Plaintiff’s request.  The Defendant did not respond to the Plaintiff’s Whatsapp messages and later on blocked the Plaintiff’s messages altogether.  The Plaintiff had not been told by the Defendant that the title deeds had been given to someone else, lost or damaged.  Therefore, the Plaintiff believes that they are with D2 or his agent. 

11.As regards the affirmations of Wu Hung Pun Wilson[22] and the various affirmations of Chan[23], the contents of all of which I have duly considered.  I am of the view that there is no need to ask their deponents to give live evidence: see Hong Kong Civil Procedure 2022 at [52/6/3].  As regards the evidence of Chan, apart from his service of the relevant documents, he also deposes that on each occasion he visited the Last Known Address, he had not seen the Defendant’s mailbox being fully filled up, nor had he found the court documents being served by him previously[24]. 

12.On the Defendant’s side, no evidence has been filed whatsoever.

Findings

13.Having looked at the Orders for Delivery Up repeatedly and objectively, I am satisfied that there can be no ambiguity as to their terms and that the Defendant can have no doubt as to what he is required to do by this Court, to viz, to deliver up all title deeds and documents relating to the Property that are in his or his agent’s possession, custody or power. Given that there has been a valid and good service of the said orders, in accordance with well-established case authorities, the Defendant is taken to have been aware of the consequences of non-compliance if he chose not to see the terms of the said orders: see Sino Wood Investment Ltd v Wong Kam Yin (No 2)[25], applying In re Witten (an infant)[26]. Furthermore, the time limit within which the Defendant was required to comply with the orders has long been expired. 

14.Based on the evidence adduced by the Plaintiff and in the absence of any evidence to the contrary, I find that the only reasonable inference is that:

(1)  the title deeds and documents in relation to the Property were and are in the Defendant’s or his agent’s possession, custody or power;

(2)  the Defendant has consistently chosen to evade service with a view to frustrate the court proceedings taken by the Plaintiff;

(3)  the Defendant has failed to comply with the Orders for Delivery Up; and

(4)  the Defendant’s failure to comply with the said orders is not casual or unintentional or accidental, but is an intentional conduct stemming out from his determination not to hand over the title deeds and the other documents of the Property to the Plaintiff.

15.Also, based on the evidence before me, I accept Mr Cheung’s submission and I find that the Plaintiff has exhausted all possible resorts to achieve compliance of the Orders for Delivery Up.  Lastly, I am satisfied that the Plaintiff has duly followed all the requisite procedural steps and that his documents are in order. 

Orders

16.Therefore, I am satisfied beyond any reasonable doubt and I find that the Defendant is guilty of contempt for breach of the Orders for Delivery Up and also that in all the circumstances his contempt necessitates some suitable form of punishment by the court. 

17.However, because of the absence of the Defendant, I agree with Mr Cheung that the matter about the punishment should be adjourned for the Defendant to address the Court in mitigation and I so order: Citybase Property Management Ltd v Kam Kyun Tak & Ors (No 1)[27]. 

18.I also order that a warrant of committal in the form as adopted in Secretary for Justice v Choy Bing Wing[28]be issued for the Defendant’s arrest to be brought before the Court as soon as practicable.  Upon the Defendant’s arrest, he will be heard on the issue of penalty: Liaoyang Shunfeng Iron and Steel Company Limited & Anor v Sunny Growth Enterprises Group Limited & Anor[29].

Costs

19.I make an order nisi that the Plaintiff shall have his costs for the present application on indemnity basis, to be taxed if not agreed: see Lau Yee Ching v Wong Tak Kwong[30]; and generally Hong Kong Civil Procedure 2022, at [52/1/11].  The Plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.  In the absence of any application for variation, this costs order nisi shall become absolute 14 days after the date of this Judgment. 

Mr Lincoln Cheung, instructed by Messrs Hon & Co (assigned by Director of Legal Aid), representing the Plaintiff

Defendant acting in person, absent