Beijing Songxianghu Architectural Decoration Engineering Co., Ltd v. Kitty Kam also known as Wang Yuzhi

HCA 1289/2022

[2024] HKCFI 3068

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1289 OF 2022

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R E A S O N S   F O R   D E C I S I O N

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1.This Court has heard a number of interlocutory applications in this action in which the Plaintiff claims against the Defendant for fraud, dishonest assistance and conspiracy to injure by unlawful means to recover the total amounts transferred on 1 November 2019 in the total sum of HK$220,548,682 (being Sum A) and on 20 February 2020 in the total sum of HK$32,500,000 (being Sum B), or alternatively damages.

2.Relevant to the matter at hand is the order I made on 9 August 2024 (“the 9 Aug Order”) upon the Plaintiff’s application by summons dated 8 February 2024, the Reasons for Decision of which was handed down on 22 August 2024 ([2024] HKCFI 2194). Hereinbelow, I will continue to adopt the abbreviations used therein.

3.By the 9 August Order, this Court

a.  restrains Kam from (save for complying with the Repatriation Order) disposing of or dealing with Sum A and Sum B or any traceable proceeds thereof, including the sum of HK$170,962,682 held in D’s Account in Standard Chartered Singapore as on 22 February 2023 (“the Proprietary Injunction”);

b.  orders Kam to pay into court within 14 days the sum of HK$170,962,682 held in D’s Account; (“the Repatriation Order”); and

c.  orders Kam to comply with the January 2023 Disclosure Order by filing and serving on the Plaintiff within 28 days an affirmation stating, in relation to the remaining part of Sum A in the amount of HK$49,586,000 (HK$220,548,682 - HK$170,962,682), the present location and the recipient(s) of that sum and the location, nature and value of assets which represent in whole or in part or are derived from the proceeds of that sum regardless of whether or not such proceeds are in Kam’s own name and whether they are solely or jointly owned (“the 49.5M Disclosure Order”).

4.On 23 August 2024, the last day for complying with the Repatriation Order, Kam issued 2 summonses (together “Kam’s Appeal and Stay Summonses”) respectively applying for

a.  leave to appeal against the 9 Aug Order; and

b.  a stay of execution of the 9 Aug Order pending appeal.

5.The Repatriation Order was not complied with by Kam by 23 August 2024 or at all.

6.On 26 August 2024, P took out a summons to enforce the compliance of the Repatriation Order by an order that unless Kam duly pays into Court within 3 days the sum of HK$170,962,682, her Amended Defence be struck out and judgment be entered against her (“1^st Unless Summons”).

7.The 1^st Unless Summons was returnable before me 3 days later on 29 August 2024. On that occasion, without offering any explanation whatsoever as to why she had failed to comply with the Repatriation Order, Kam through her counsel Mr Acorn Lam urged that directions be given for her to file evidence to oppose (but was unable to indicate the nature or broad effect of the evidence when enquired by the bench) and that the 1^st Unless Summons be heard together with Kam’s Appeal and Stay Summonses, which was scheduled to be heard on 28 October 2024. Mr Acorn Lam relied heavily on the fact that there was a pending application for leave to appeal and stay pending appeal. Upon taking that into account and the fact that Mr Acorn Lam indicated, after having stood down the matter for him to confirm instructions from Kam, that Kam would be able to file a short affirmation on or before 4:00pm on 5 September 2024 (“Kam’s Assurance Affirmation”) confirming that the HK$170,962,682 currently still remained in D’s Account and exhibiting documentary proof thereto, including bank statements, I acceded to Kam’s proposed directions, but gave liberty to P to restore the 1^st Unless Summons for hearing at an early date if Kam filed to file Kam’s Assurance Affirmation in time.

8.Despite having indicated on 29 August 2024 that she would do so, Kam failed to file Kam’s Assurance Affirmation on 5 September 2024 or at all. No explanation of the failure was even offered at any point.

9.Kam also failed to comply with the 49.5M Disclosure Order on or before 6 September 2024, or at all.

10.The 1^st Unless Summons was then restored to be heard before me on 12 September 2024. Kam this time appeared by Mr Abraham Chan SC (leading Mr Lam and Mr Lau). Mr Chan essentially submitted that (a) the sanction applied to be imposed by the 1^st Unless Summons was draconian, (b) the time directed by me on 29 August 2024 for Kam to file her affirmation in opposition, which was on or before 19 September 2024, has not expired, (c) despite again unable to proffer any information as to what Kam might depose to, Kam should be given a chance to file her evidence, and (d) the matter should be adjourned for a substantive hearing for Kam to argue whether such sanction ought to be imposed, and if so, on what terms. Having also heard Mr Lam SC, counsel for P, this Court accepted Mr Chan’s submissions. Having discussed with counsel for both sides who agreed to such directions, I directed under an unless order that Kam do file her affirmation in opposition to the 1^st Unless Summons and in support of Kam’s Appeal and Stay Summonses (which she has not yet filed despite time to do so has expired) on or before 4:00 pm on 17 September 2024 and that the hearing date of the 1^st Unless Summons and Kam’s Appeal and Stay Summonses be moved up to 27 September 2024.

11.On 16 September 2024, P took out another summons to apply for another unless order to enforce the compliance of the 49.5M Disclosure Order, that unless she so complies within 14 days, she be debarred from defending this action, her Amended Defence be struck out and judgment be entered against her (“2^nd Unless Summons”).

12.On 17 September 2024, the last day for Kam to file her affirmation evidence, Kam’s solicitors filed an affirmation exhibiting a draft undated and unsigned 11^th affirmation of Kam (“Kam’s Draft 11^th”) which, among others, purported to disclose in §4 thereof, alarmingly, that the sum of HK$170,962,682 was no longer kept in D’s Account, thus:

“4. 關於港幣 170,962,682元款項，在原告人多次去信渣打銀行(新加坡)有限公司提出質詢及要求後，該行關閉了戶口號碼為 6527563202的戶口。由于該筆款項一直由本人代Sunshine Success International LP (“SSLP”) 持有，本人在無可奈何的情況下將該筆款項交回SSLP。然而，基於本人目前已不再參與SSLP及SSGI的任何事務，本人無法了解該筆款項的去向。”

13.I should also mention that in §5 of Kam’s Draft 11^th, Kam listed out the addresses of 10 properties in Mainland said to be owned by her and in the total value of RMB 210,000,000, and said that the Plaintiff might later enforce the judgment in this action against them should its claim eventually prevail, and in §6 of Kam’s Draft 11^th, Kam sought to explain that the 49.5M Disclosure Order was not complied with because she had recently changed her legal team.

14.Then on 23 September 2024, Kam by her solicitors’ letter proposed to withdraw Kam’s Appeal and Stay Summonses. A consent summons was filed to that effect one day before this hearing.

15.On 24 September 2024, P took out a summons applying for leave to commence proceedings in Singapore against Kam and/or to commence 3^rd party discovery proceedings against Standard Chartered Singapore and other third parties (“the Leave Summons”).

16.The 2^nd Unless Summons and the Leave Summons were returnable before me at this hearing.

17.At the hearing, leave for the withdrawal of Kam’s Appeal and Stay Summonses was formally given, and having heard submissions, I ordered the costs of Kam’s Appeal and Stay Summonses be paid by Kam taxed on indemnity basis with certificate for 2 counsel to be summarily assessed. Reasons for this costs order were given orally at the hearing.

18.Then after some discussions on procedural matters between the bench, Mr Lam SC (leading Ms Ho and Ms Sat), counsel for P and Mr Chan SC (leading Mr Lam and Mr Lau),

a.  Mr Lam confirmed that P would not be seeking on this occasion a substantive order on the 2^nd Unless Summons and the Leave Summons insofar as concerning leave to commence proceedings against Kam in Singapore, and that directions on them be given; but P would pursue at this hearing leave to commence proceedings in Singapore for discovery; and

b.  Mr Chan did not further maintain that the substantive hearing of the 1^st Unless Summons should be adjourned to be heard with, or after, this Court has decided on the Leave Summons.

19.For determination therefore was whether the unless order sought by 1^st Unless Summons should be granted, and if so, on what terms, and whether leave to commence discovery proceedings in Singapore against Standard Chartered Singapore or other third parties should be granted.

20.At the conclusion of the hearing, I

a.  granted an unless order largely in terms of paragraph 1 of the 1^st Unless Summons save that the deadline was changed to “on or before 4:00pm on 25 October 2024” and that in default, Kam’s Amended Defence be struck out and judgment be entered not in respect of the Plaintiff’s whole claim but only “in relation to Sum A, being HK$220,548,682”;

b.  made an order in terms of the Leave Summons limited to instituting proceedings for discovery against Standard Chartered Singapore or other relevant 3^rd parties in Singapore, with the remainder of that summons to be argued substantively with the 2^nd Unless Summons;

c.  in respect of the 2^nd Unless Summons, gave directions for the filing of evidence and the fixing of the date for its substantive argument together with the remainder of the Leave Summons;

d.  having heard submissions thereon, reserved the question of whether the costs of the 1^st Unless Summons should be taxed on indemnity basis, it being agreed that Kam should bear the instance of such costs.

21.These are my reasons for the above orders and decision on the basis of taxation of the costs of the 1^st Unless Summons.

Kam’s breach of the Repatriation Order was inexcusable, intentional and contumelious; and her litigation conducts abusive

22.In its written submissions, the Plaintiff has set out extensively the relevant procedural history, and the assurances given by Kam on oath and by her counsel in court that the sum of HK$170,962,682 and US$6,300,000 will continue to remain in D’s Account pending the outcome of the Arbitration and this action. The Plaintiff then submitted that Kam’s breach of the Repatriation Order was blatant, inexcusable, intentional and contumelious, and that her litigation conducts were abusive. The Plaintiff has also been repeatedly pointing out since the hearing on 29 August 2024, which was an undisputed fact, that Kam has offered no explanation whatsoever about her non-compliance despite repeatedly seeking, and was given, time to file evidence.

23.In the written submission lodged on her behalf and in Mr Chan’s oral submissions, no submission was made to contest the Plaintiff’s said submission. Mr Chan, advocating the best he could for Kam, reminded this Court that it should be slow and cautious in coming to adverse findings of Kam’s conducts. Such reminder of course was always pertinent. In fact, this Court has always bore that very much in mind with or without the reminder.

24.That said, on present materials and for reasons expressed below, and not unreluctantly, this Court formed the clear view that Kam has consciously decided not to comply with the Repatriation Order (and possibly the Mareva Injunction, the HCCT Proprietary Injunction and the Proprietary Injunction), and that her breach was flagrant, inexcusable, contumelious, and her litigation conducts were abusive and evident of litigation gamesmanship as the Plaintiff complained.

25.Firstly, I accept the Plaintiff’s submissions that Kam has repeatedly gave the Court (and the Plaintiff) express assurances that (a) the sum of HK$170,962,682 and US$6,300,000 were remaining, at the time the assurances were made, and will remain, in D’s Account pending the outcome of the Arbitration and this action, and (b) she was subject to the Mareva Injunction and the HCCT Proprietary Injunction not to remove the money from D’s Account. Mr Lam (and his juniors) have helpfully listed, referenced and quoted the sources of all such express assurances in Annex 1 to his written submissions, which consists of 3 full pages. They were not contested by Kam. I do not need to refer to all of them here, suffice it to mention the more recent ones :

a.  In Kam’s 10^th Affirmation dated 5 August 2024 (filed in opposition to the Plaintiff’s application for the Proprietary Injunction and the Repatriation Order), in §§44 and 45 thereof, Kam said on oath emphatically that since her solicitors’ letter dated 17 January 2023 she had repeated assured in this action and in the Arbitration that “the sums of HK$170,962,682 and US$6,300,000 continue to remain in that account pending the outcome of the Arbitration and this action”;

b.  Senior counsel appearing at the 9 August 2024 hearing for Kam (not Mr Chan) repeatedly stressed that Kam has repeatedly stated and assured that the money was and would remain in D’s Account and that the injunctive relief in place was already effective in preventing any dissipation or interference; and

c.  At the hearing on 29 August 2024 and after having taken instructions from Kam, Mr Acorn Lam, then counsel for Kam, on behalf of Kam stated to this Court that Kam was prepared to file Kam’s Assurance Affirmation to confirm that the money was still in D’s Account.

26.Secondly, and as said, despite Kam herself repeatedly asked for and was given time to file evidence, and therefore was afforded proper and ample opportunity to explain, Kam never filed any, but only on the last day purportedly adduced Kam’s Draft 11^th. However, and as submitted by Mr Lam, which I accept, the form and content of Kam Draft 11^th was appalling. It was only exhibited as a draft to her solicitor’s affirmation. It is beyond understanding, nor was it explained, as to why it was not even signed. I consider this matter against the background that in the 6 hearings before this Court since 30 May 2024, Kam has been repeatedly changing her legal representations. In the hearings before me since and including 30 May 2024, she was represented by 4 different firms of solicitors and 5 different teams of counsel. It is thus of particular importance that the factual matters to be relied on by Kam are to be properly affirmed to on oath by her, which was clearly not the case in respect of Kam’s Draft 11^th.

27.Thirdly, Draft Kam 11^th not only did not offer any explanation for non-compliance of the Proprietary Order, but in fact said that the HK$170,962,682 and US$6,300,000 have been dissipated from D’s Account.

28.Fourthly, such dissipation of the money was (a) contrary to the said assurances Kam has been making to the Court and to the Plaintiff, (b) on its face was a direct breach of the Proprietary Injunction granted by this Court on 9 August 2024, and (c) a potential breach of the HCCT Proprietary Injunction. Such dissipation clearly calls for a detail and full explanation.

29.Yet and fifthly, what she said in §4 of Draft Kam 11^th is disingenuous and hardly believable, and clearly not a full or even meaningful disclosure:

a.  D’s Account was held in Kam’s personal name, even if it were closed, as alleged, it must be Kam herself who would be signing the mandate to transfer the money into whichever immediate bank account or whatever destination (regardless of whether directly to an account held by SSI or ultimately reaching SSI, as alleged). Standard Chartered Singapore clearly was not entitled to transfer away the money in D’s Account without Kam’s authority. It is thus completely disingenuous and unbelievable for her to even claim that “本人無法了解該筆款項的去向”.

b.  Not only was the destination of the money not divulged, there were no details whatsoever given by Kam regarding the date D’s Account was closed, and how, when and to whom (in terms of name of the holder of the destination account) the money was sent. The date is particularly important as this Court has on 9 August 2024 imposed the Proprietary Injunction against her.

c.  Also importantly, upon an account being closed by a bank and money transferred out, there must have been documentations. But none whatsoever was exhibited or produced. The only inference is therefore that Kam is suppressing their production. In this regard, at the hearing on 29 August 2024, this Court has indicated that Kam must produce documentary proof in Kam’s Assurance Affirmation and this Court indeed has discussed specifically with Mr Acorn Lam as to the specific bank documents to produce. Instructions were then sought by Kam’s legal team when the hearing was stood down and Kam indicated through counsel that she was prepared to file that affirmation and produce those bank statements. Kam therefore must have been appraised of the need and importance to produce documentary proof, even if she did not already know earlier.

d.  She said the reason for the closure of D’s account was P’s enquiries with Standard Chartered Singapore. The materials and evidence now are that such enquiries were made in 2023. It would not have explained such recent closure of D’s Account, if it indeed was recent at all.

e.  There was no explanation whatsoever as to why she was in any way compelled to “return the money to SSI”. Her claim of so-called “無可奈何” is completely unsubstantiated.

30.Sixthly, I also accept, as has been pointed out by Mr Lam, that in §2(c) of the draft Notice of Appeal against the 9 August Order attached to Kam’s summons dated 23 August 2024, Kam complained that this Court erred in failing “to consider the less oppressive option of transferring the sum into the Defendant’s own bank account within the jurisdiction”, which therefore implied that such option was still open to her as on 23 August 2024, which is wholly inconsistent with her apparent stance in Draft Kam 11^th that the money has been transferred away beyond her knowledge or control before she could have complied with the Repatriation Order.

31.Seventhly and similarly, in light of Kam counsel’s indication on 29 August 2024 that Kam was prepared to file Kam’s Assurance Affirmation, it also indicated that the money was still in D’s Account as on that date. That would suggest that Kam has purposefully and intentionally flouted the Repatriation Order (and breached the Proprietary Injunction) and is now making up a feeble excuse in Draft Kam 11^th.

32.Lastly, despite the expiry of time and then given further time to file affirmation evidence in support of Kam’s Leave and Stay Summonses, Kam never filed any, but only indicated days before the same was due for substantive hearing that she would be withdrawing them. I accept Mr Lam’s submissions that taken together with the other conducts of Kam as alluded to above, it showed that Kam’s Leave and Stay Summonses were not taken out in good faith and was merely used as a ploy to buy time, and such conducts were abusive in nature.

Leave to commence proceeding in Singapore for discovery clearly called for

33.It is common ground that in obtaining the Mareva Injunction from Anthony Chan J in January 2023 against Kam, the Plkaintiff has given the Court an undertaking to the effect that that it will not without leave of the Court begin proceedings against Kam in any other jurisdiction or to seek to enforce the Mareva Injunction outside Hong Kong. Hence, the Leave Summons.

34.It is not disputed between Mr Lam and Mr Chan that the relevant principles were summarized in Agritrade Resources Ltd v Ashok Kumar Sahoo [2021] HKCFI 685 at §138 to 139 where DHCJ To adopted the guidelines set out by Arden LJ (as she then was) in Dadourian Group International Inc v Simms [2006] 1 WLR 2499 at §25 , namely,

“(1) The grant of permission should be just and convenient for the purpose of ensuring the effectiveness of the worldwide freezing order and the addition that it is not oppressive to the parties to the local proceedings or to third parties who may be joined to the foreign proceedings;

(2) All relevant circumstances and options need to be considered. In particular, consideration should be given to granting relief on terms, for example, terms as to the extension to third parties with the undertaking to compensate for costs incurred as a result of the worldwide freezing order and as to the type of proceedings that may be commenced abroad, proportionality of the steps proposed to be taken abroad and in addition to the form of any order;

(3) The interests of the applicant should be balanced against the interests of the other parties to the proceedings and any new party likely to be joined to the foreign proceedings;

(4) Permission should not normally be given in terms that would enable the applicant to obtain relief in the foreign proceedings which is superior to the relief given by the worldwide freezing order;

(5) The evidence in support of the application for permission should contain all the information so far as it can reasonably be obtained in the time available necessary to enable the judge to reach an informed decision including evidence as to the applicable law and practice in the foreign court, evidence as to the nature of the proposed proceedings to be commenced and evidence as to the assets believed to be located in the jurisdiction of the foreign court and the names of the parties by whom such assets are held;

(6) The standard of proof as to the existence of assets that are both within the worldwide freezing order and within the jurisdiction of the foreign court is a real prospect, that is, the applicant must show that there is a real prospect that such assets are located within the jurisdiction of the foreign court in question;

(7) There must be evidence of a risk of dissipation of the assets in question;”

35.I bore these principles in mind in considering the leave sought at this hearing, which was only confined to commencing discovery proceedings in Singapore so that the Plaintiff might trace the money.

36.As alluded to above, despite the Plaintiff having obtained in Hong Kong the Mareva Injunction, the HCCT Proprietary Injunction, the Proprietary Injunction and the Repatriation Order, and despite Kam’s said repeated assurances and repeated contentions that there was no risk of dissipation, the alarming fact now, as it turns out, is that the HK$170,962,682 in D’s Account thought to have been frozen there is gone, and Kam refused to divulge its whereabouts, but claimed, most incredibly and disingenuously, that she was “unable to understand” where the money has gone (“本人無法了解該筆款項的去向”). Moreover, Kam has also flouted the 49.5M Disclosure Order.

37.Kam having so flouted these orders and dissipated the money as aforesaid, it was clearly just and convenient for the purpose of ensuring the effectiveness of these orders to grant the leave. It clearly would not be oppressive to Kam, or SSGI or SSGI. Indeed, in light of Kam’s flagrant, intentional and contumelious breaches and abusive conducts, it lay very ill in her mouth to even to begin to complain of any oppression. It was evident that any further delay in granting this leave would only jeopardize the interest of the Plaintiff in locating and tracing these sums over which it has been making a proprietary claim.

38.I thus had no hesitation to conclude at the hearing that it was not only just and convenient, but indeed expedient, to grant to the Plaintiff the leave to commence discovery proceedings in Singapore.

An unless order enforcing compliance of the Repatriation Order

39.The starting point must be that court orders are to be complied with. An unless order backed by sanction is a common and rudimentarily measure to coerce compliance.

40.The importance to have effective powers and sanctions to ensure compliance of court orders cannot be overstated. It has been vividly highlighted by Rix LJ in JSC BTA Bank v Ablyazov [2013] 2 All ER 414 at §188 :

“The authorities demonstrate that it is vital for the court, in the interests of justice, to have effective powers, and effective sanctions. Without these, it would be possible for a defendant (or, in a different situation, a claimant) to flout the orders of the court, which are the court’s considered means by which to keep the scales of justice for the parties even. If once it became known that the court was unable or unwilling to maintain the effectiveness of its orders, then it would lose all control over litigation of this kind, with terrible consequences for the administration of justice. Those wrongly accused of fraud would be relieved of a certain amount of inconvenience, but fraudsters would rejoice and hitch a free ride to interminable litigation on the back of ill-gotten gains.”

41.The above observation of Rix LJ was approved and applied by Chow J (as the learned JA then was) in China Metal Recycling (Holidays) Limited v Chun Chi Wai (HCA 1412/2013, unrep., 17 November 2014) in the context of enforcing the compliance of a discovery order against the defendants by an unless order backed by the sanction of striking out the defence and entering judgment. The Plaintiff has also cited other cases in which similar unless orders as the one now sought were granted. I do not think I need to refer to them in any detail, as quite clearly whether to grant such an unless order is very fact-sensitive and often nuanced, and each case must be considered on its own facts and circumstances.

42.Certain general principles were not disputed :

a.  An unless order is an order of last resort.

b.  It is generally more appropriate where there is a history of failure to comply, or where the default is deliberate, contumelious, or the inexcusable.

c.  However, when there is flagrant breach of an order, the fact that there is no history of disobedience of court orders would count for very little (per Kwan JA (as the learned VP then was) in Bruce James Stinson v Gu Ming Gao CACV 61/2017, unrep., 12 January 2018 §63).

d.  The sanction that accompanies an unless order must be commensurate with the default in question and meet the justice of the case (AXA China Region Insurance Co Ltd & Another v Pacific Century Insurance Co Ltd & Others (No 2) [2005] 3 HKC 359, at 379C, per Chu J (as the learned VP then was)).

43.Mr Chan placed reliance on the guidelines for a “more calibrated use” of an unless order set out in the Singapore Court of Appeal case of Mitora Pte Ltd v Agritrade International (Pte) Ltd [2013] 3 SLR 1179 cited in §58 of the judgment in Bruce James Stinson, which was not disputed by Mr Lam:

“(a) ‘unless orders’ stipulating the consequence of dismissal should not be given as a matter of course but as a last resort when the defaulter’s conduct is inexcusable;

(b) the conditions appended to ‘unless orders’ should as far as possible be tailored to the prejudice which would be suffered should there be non-compliance; and

(c) other means of penalising contumelious or persistent breaches are available, including but not limited to

(i) awarding costs on an indemnity basis;

(ii) ordering the payment of the plaintiff’s claim or part thereof into court where the defaulting party is a defendant …;

(iii) striking out relevant portions of the defaulting party’s statement of claim or defence rather than the whole;

(iv) barring the defaulting party from adducing certain classes of evidence or calling related witnesses; and

(v) raising adverse inferences against the defaulting party at trial.”

44.Mr Lam submitted that the sanction of striking out a defence and entering judgment is suitable and proportionate where the failure to comply effectively deprive the affected litigant his substantive rights on account of the default, citing §58 to 65 of the judgment in Bruce James Stinson. Particularly, Kwan JA (as the learned VP then was) observed in §64 :

“ … Where a litigant’s conduct puts the fairness of the trial in jeopardy, such that any judgment in favour of that litigant would have to be regarded as unsafe, or where it amounts to such an abuse of process as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled to refuse to allow that litigant to take further part in the proceedings.”

45.Mr Lam emphasized that, not only was Kam’s default deliberate, contumelious and flagrant, her failure to comply with the Repatriation Order was not a mere procedural default, but the default would affect the Plaintiff’s substantive rights in that Kam has been consistently employing her litigation gamesmanship requiring the Plaintiff to expend much more time and costs than were otherwise necessary and reasonable in seeking its redress, and when the subject money (over which the Plaintiff has a proprietary claim) is not secured, it is very likely that at the end of the day when all these costs and time were spent, the Plaintiff would only have obtained an empty judgment.

46.Mr Chan raised the point that the sanction for default of the unless order of striking out the entire Defence and entering judgment against Kam on both Sums A and B was disproportionate in that the Repatriation Order covered only the majority of Sum A. Mr Lam has, indeed and very fairly, already acknowledged the validity of this point at the hearing on 12 September 2024, and at this hearing readily agreed to tailor down the sanction upon default to striking out the Defence and entering judgment in respect of Sum A only.

47.Mr Chan advocating as much as he could on behalf of Kam against the granting of the unless order in the tailored-down form and submitted :

a.  The purpose of the unless order is not to penalize Kam.

b.  As such an order is one of last resort, and there are other resorts in the present case in that the Plaintiff could and is intending to commence proceedings against Kam in Singapore, that Kam has voluntarily provided information of her assets in Mainland for the Plaintiff to enforce its judgment should it prevail at the end of the day.

c.  The unless order sought is inappropriate or is not proportionate as under the guidelines set out in paragraph 43 above, there are other options available to deal with the present default, including

i.  contempt proceedings against Kam (as in VIS Trading Co Ltd v Nazarov & Others [2015] EWHC 3327), and at present there is nothing to indicate contempt proceedings against Kam would be futile;

ii.  imposing the sanction of awarding indemnity costs against Kam; and

iii.  imposing the sanction of debarring Kam from filing witness statement or otherwise proffering evidence in support of her defence case.

d.  Enforcing compliance with the Repatriation Order is not an end in itself, and in the interest of administration of justice, putting in place orders and arrangements for the trial to take place at the earliest possible date would better serve the interest of justice.

48.Without any disrespect to Mr Chan, I do not find it necessary to refer to or analyse the many authorities he cited as examples where no unless orders were given or other sanctions were imposed upon default, as I have said, such cases were decided on their own particular set of facts and considerations. Suffice to mention that it was not said that any of those cases bear closely similar circumstances as in the present one. In my view, this Court is guided by the general principles set out above and must assess the matter on the facts and considerations before it.

49.I do not accept the submission that the availability of “other resorts” to the Plaintiff would make the unless order inappropriate. When one refers to an unless order being an order of last resort, one is talking about the last resort to ensure compliance of that court order. It should not be confused with the resorts available to the Plaintiff to pursue his claim or to enforce the judgment he might ultimately obtain. Otherwise and following the logic of such contention and if it were accepted, it would mean that for a plaintiff who has an opportunity to pursue a claim in a different jurisdiction or has the means to enforce the judgment, he would thereby be disadvantaged in, if not altogether be denied from (though a court order was flouted and the situation otherwise warrants it), obtaining the imposition of the sanction of “refuse[ing] to allow that litigant to take further part in the proceedings”, as Kwan VP put it in Bruce James Stinson. Such cannot be right.

50.For the following reasons, I take the view that in the present circumstances the other options/sanctions advocated by Mr Chan for Kam are clearly inappropriate, if not wrong :

a.  Leaving the Plaintiff to initiate contempt proceedings would not redress the fact and manner that the Plaintiff’s substantive rights are affected, namely, that the Plaintiff would be put to the futile expenditure of much time and costs (and potentially an inordinate amount due to Kam’s litigation gamesmanship) to obtain but an empty judgment. Moreover and practically, Kam has been outside of the jurisdiction at all times since the commencing of this action. Contempt proceedings would very well end up as another fruitless but expensive chase on the side on the part of the Plaintiff. It plays further into Kam’s gamesmanship and prejudices the Plaintiff further.

b.  Likewise, barring Kam from further proffering evidence means that the Plaintiff nevertheless would be required to further spend time and costs in prosecuting this action before it could obtain a judgment. Moreover, in principle, Mr Chan is right in limiting the sanction to Sum A only, therefore the sanction would have to be debarring Kam from filing witness statement and proffering evidence in respect of her case on Sum A only, and not in respect of Sum B. This would create much potential for dispute on a practical level with the attendant time and costs, and therefore further prejudices the Plaintiff.

c.  This Court has, in respect of a number of interlocutory matters, considered as appropriate and has ordered costs to be paid by Kam on indemnity basis. Such did not seem to have any effect on her insofar as ensuring compliance of court orders is concerned.

d.  The fact that there are other appropriate measures already available to serve the interest of justice in a particular case, like directions for a speedy trial as Kam now advocates, evidently could not be an excuse that a defaulter can point to and say that therefore no sanction should be imposed upon me for my non-compliance. With respect, such contention needs to be stated to be dismissed.

51.It is very evident to me that in view of Kam’s such contumelious and flagrant breach and the manner that the Plaintiff’s substantive rights are thereby affected, that the unless order with the said tailored-down sanction now sought by the Plaintiff is just, appropriate and proportionate.

Costs of the 1^st Unless Summons be taxed on party and party basis; and other costs related matters

52.At the hearing, Mr Lam relied on and highlighted Kam’s conducts already alluded to above and sought indemnity costs. Mr Chan submitted that in light of the draconian sanction and despite Kam has been in breach, she was entitled to be heard to oppose the 1^st Unless Summons, and by her contesting it, it did bring about the exclusion of Sum B from the sanction, which was not insubstantial, even though such was not serious contested by the Plaintiff at the hearing. Mr Chan also referred to the fact that in the number of cases cited before me where similar unless orders were given, indemnity costs were not awarded against the defaulter who contested unsuccessfully the application of the unless order.

53.This Court is unfavourably impressed by the fact and manner that Kam breached the Repatriation Order and by her litigation gamesmanship, to put it mildly. However, I think Mr Chan’s submission has some force. Confining to considering only Kam’s conduct after the 1^st Unless Summons was issued, I would take into account : (a) Kam indicated that she was prepared to file Kam’s Assurance Affirmation, but she didn’t, possibly as another ploy to buy time and necessitated the Plaintiff restoring the matter and another directions hearing, (b) the form of Draft Kam 11^th is appalling and its contents are not merit of belief, and (c) points of opposition were raised and some were weak to the point of being close to unarguable, but I am not quite prepared to say that they ought not have been raised in the first place (d) yet and rather weightily in my mind, Kam’s opposition effectively brought about the exclusion of Sum B in that if there were no opposition, the Plaintiff might have obtained a sanction covering the entire claim.

54.Considering that I would be assessing the costs summarily and would be very much minded in the circumstances to allow the costs occasioned by restoring the matter for an early hearing and the fees of senior counsel for attending both the hearings on 29 August 2024 and 12 September 2024, I am persuaded by Mr Chan by a thin margin that indemnity costs might not be entirely appropriate. I would therefore order the costs of the 1^st Unless Summons be paid by Kam on party and party basis.

55.Concerning this set of costs and the costs of Kam’s Appeal and Stay Summonses, the Plaintiff is to lodge and serve its Statements of Costs within 7 days, Kam to lodge and serve her Lists of Objections within the next 7 days, and the Plaintiff may lodge and serve its respective Replies within 3 days thereafter.

56.At the hearing, I have discussed with the parties and ordered that the summary assessments of the other outstanding sets of costs shall be conducted together at a hearing before me, which is now scheduled to take place on 16 December 2024. The summary assessments of the costs of the 1^st Unless Summons and Kam’s Appeal and Stay Summonses shall also be conducted at the same hearing.

57.Lastly, I thank Mr Lam and Mr Chan and their juniors for their assistance.

Mr Douglas Lam SC leading Ms Sabrina Ho and Ms Sakinah Sat, instructed by Messrs PC Woo & Co, for the Plaintiff

Mr Abraham Chan SC leading and Mr Timothy Lam, instructed by Messrs Fung Wong Ng & Lam LLP Solicitors, for the Defendant