The Incorporation Owners of United Building v. Ng Yuk Ming and Others

HCA004157/1993

1993 No. A4157

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

_____________

_____________

Coram: Hon Yam, J. in Court

Date of hearing: 16 September 1994

Date of delivery of decision: 16 September 1994

_______________

D E C I S I O N

_______________

1. This is an application by motion for contempt by the plaintiff against the 1st and 6th Defendants. The application was started by the Statement supported by an affidavit. The application was also accompanied by a document dated 16th May 1994.

2. Thereafter the plaintiff took out a Notice of Motion dated 28th May 1994 and served it together with the Statement and the said affidavit on the 1st and 6th defendants on the 28th May 1994. The defendant took out a summons before me for an order that the committal proceedings issued by the plaintiff pursuant to the order made by Deputy Judge Cheung on the 18th May 1994 be set aside on the ground that the plaintiff's application for leave to issue the Notice of Motion was irregularly obtained.

3. The Statement stated the name and description of the two defendants for contempt of court in that the 1st and 6th defendants have breached the order made by Deputy Judge Wong. An application for such leave has been made ex parte to Deputy Judge Cheung setting out the name, description and address of the person sought to be committed; and it was supported by an affidavit. Mr Tsang submitted that the plaintiff failed to state the name and description of the applicant, and more importantly, the grounds on which the committal is sought.

4. It has been said by Sir John Donaldson M.R. in the case of Chiltern D.C. v. Keane [1985] 1 W L R at page 621 F :-

"... where the liberty of the subject is involved, this court has time and again asserted that the procedural ..... the statement itself which required to state the ground ......... to list out what undertaking they have done and what breach of the undertaking they have made and all material facts upon which they ......"

The Master of the Rolls further said at page 622 that :-

" ..... It has been said in many cases that what is required is that the person alleged to be in contempt ......... have done or omitted to do which constitutes a contempt of court.

The particular undertakings and injunctions in this case cover a wide range of activities. Mr. Keane was entitled to know whether it was said by the council that he was in breach of every single requirement of those orders or only some, and if so which, of them and the notice failed to give him that information.

Every notice of application to commit must be looked at against its own background. The test, as I have said, is : does it give the person alleged to be in contempt enough information to enable him to meet the charge? If, for example, a defendant is subject to an injunction to leave a stated house not later than a particular time on a particular day, then it would be sufficient to say that he had failed to comply with that order, because it only permits of one breach, namely failure to leave the house by the time stated. But where the order is not in such a simple form and it is possible for the defendant to be in doubt as to what breach is alleged, then the notice is defective."

5. That, of course, concerned with the Notice of Motion which I will come back later on. The Statement itself is defective for the same reason. The Statement should state all the facts and the affidavit was just to confirm those facts. The affidavit itself also lacked in particularity, I am afraid, and by itself, as I have said, could not cure the defective Statement.

6. In this case there were two allegations which Mr Tsang described them as "poster allegation" and "management fee allegation". The allegation of the plaintiff was the poster was defamatory of the plaintiff. But even in the affidavit it did not state, as required in an action of defamation, what words were used, what purported inference could be made from the words used, and in what way it was defamatory of the plaintiff.

7. In the case of Hamsworth v. Hamsworth [1987] 1 W L R 1676 similar grounds are put forward and Nicholls L.J. stated at page 1683 that :-

"As I read the rules and as I understand the decision in Chiltern District Council v. Keane the rules require that the notice itself must contain basic information, that information is required to be available to the respondent to the application within the four corners of the notice itself. From the notice itself the person alleged to be in contempt should know with sufficient particularity what are the breaches alleged."

It was held in that case that the particulars were sufficient within the four corners of the notice itself.

8. That brings me to the Notice of Motion. This was dated 28th May 1994 and it similarly stated only that the 1st and 6th defendants were alleged to be in contempt of court in continuing to post up numerous posters all over the United Building which contents were defamatory of the plaintiff or member of the management committee of the building. Further the 1st and 6th defendants had repeatedly approached owners of United Building asking them not to pay management fees to the plaintiff in breach of their undertaking to the court by the order of Deputy Judge Wong on the 25th May 1993. The defendants submitted that it lacked in particularity because there was no mention of (a) whether the 1st or the 6th or both defendants posted up the poster; (b) how many posters and when and where; and on how many occasions they were posted up and; (c) which part or parts of the poster are defamatory and of whom.

9. In respect of the occasions and how, when and where the posters were posted up, the plaintiff could say on numerous occasions too many to be particularised, but as I have said earlier that it is incumbent on them to state how they were defamatory and, in what way they were defamatory.

10. In relation to the management fee allegation, there was : (a) no dates specified; (b) no particular of owners who were approached; and (c) in what manner the owners were approached; or (d) who approached the owners - the 1st, the 6th or both defendants. Sir John Donaldson M.R. in Chiltern D. C. v. Keane (C.A.) further stated at page 623 H that :-

"I have been told that one of the problems is that judges, having heard the evidence, frequently say, "I find the contempt proved,' without specifying the heads of contempt where there are more than one which they find proved. They may then proceed to consider what penalty, if any, is appropriate. But that really is insufficient. As I say, the contemnor is entitled to know on how many counts he has been found guilty and to have them specified. I hope that judges will in future indicate in clear terms, when giving the reasons for their judgements, what it is that they find proved, and that those who are responsible for drawing up the orders will then record what it was that was found proved."

In the end I find that both the Statement and the Notice of Motion lacked in particularity.

11. Mr Chan for the plaintiff submitted that the only course open to the defendants to set aside the ex parte order of Deputy Judge Cheung was to appeal to the Court of Appeal. He relied on O.52, r.2(5) :"Where an application for leave is refused by a Judge or is granted on terms the applicant may appeal against the judge's order to the Court of Appeal within ten days after such order". I disagree with his submission. The rule only provided an appeal shall be lodged in a case where leave is refused or the judge imposed any terms at the time when he granted leave. No term was imposed when leave was granted. In my view any ex parte order could be set aside on an inter partes application. It is exactly what the defendants are doing.

12. The next thing I have to consider is whether I should set aside the leave granted to the plaintiff to apply for an order of committal against the defendants or should I allow the plaintiff to amend the Statement. I think it is better to set it aside than allow the plaintiff to start again since there is no amendment put before me, and it is for the applicant to make good their application. When a Statement is set aside for irregularity, the plaintiff can always apply again. In setting aside the Statement, the Notice of Motion issued thereunder must also be dismissed.

Representation:

Mr Kenneth C.L. Chan, inst'd by Messrs Oswald Wong & Heung, for Plaintiff

Mr Tsang Kam Hung, inst'd by Messrs Drivers, for 1st and 6th Defendant