Poon Ki Chi v. Poon Chuk Hung Jason

HCMP 799/2024

[2024] HKCFI 3371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 799 OF 2024

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BETWEEN

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J U D G M E N T

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1.By the Originating Summons dated 14 May 2024 (“the OS”)  issued with leave of this court granted on 8 May 2024, the Plaintiff seeks an order of committal against the Defendant for his breach of the injunction order made by this court against the Defendant dated 28 March 2024 (“the Injunction Order”).

2.At the first hearing of the OS on 5 July 2024, the Defendant’s former counsel, in the presence of the Defendant, admitted the charge of contempt on behalf of the Defendant. This court then adjourned the hearing of the OS for the parties to make submissions on sanction and sentence to a date to be fixed. This court made an express indication that imprisonment would be one of the sentencing options in the presence of the Defendant. Directions were given to the parties to, among other matters, prepare affirmations relating to mitigation (“the 5/7 Directions”). Among those direcions, the Defendant was granted leave to file and serve a mitigation submission with authorities 14 days before the date of the adjourned hearing. 

3.Pursuant to the 5/7 Directions, the Defendant filed his first affirmation on 30 August 2024 (“the 1^st Affirmation”).

4.Shortly before the adjourned hearing on 21 October 2024 (“the 21/10 Hearing”), Messrs. MK Lam & Co (“MK Lam”), the Defendant’s former solicitors, made an application to cease to act for the Defendant by summons dated 18 October 2024 (“Cease to Act Summons”). This application was heard by this court immediately before the 21/10 Hearing and the Defendant did not attend the hearing. I granted the application having accepted the evidence of MK Lam.

5.The Defendant did not turn up at the 21/10 Hearing eventually. This court adjourned the hearing to 7 November 2024 for the Defendant to appear with an explanation for his absence by way of affirmation.

6.On the following day, Messrs. David Fenn & Co (“DF”)  filed a Notice of Change of Solicitors to give notice to act for the Defendant in place of MK Lam. They filed the 2^nd Affirmation of Poon Chuk Hung dated 4 November 2024 (“the 2^nd Affirmation”)  after 5:00 p.m. on 4 November 2024 on his behalf to explain his absence at the 21/10 Hearing. In that affirmation, the Defendant basically placed the blames on his former solicitors alleging that they did not serve on him properly the documents relating to their application for cessation to act for him and that they had previously advised him that they would represent him at the 21/10 Hearing and he did not need to attend.

7.Less than an hour before the adjourned hearing on 7 November 2024 (“the 7/11 Hearing”), this court received a written submission in mitigation from Mr Chan, the Defendant’s counsel. The written submission was faxed to the court in the evening before and Mr Chan handed up a few authorities referred to in the written submission shortly before the 7/11 Hearing. Mr Chan explained to the court that he had just been instructed on the day before the 7/11 Hearing and hence he could not have lodged his written submissions and his list of authorities any earlier.

8.This court could only further adjourn the sentence hearing after Mr Chan confirmed the Defendant’s admission of the charge. The Defendant was directed to file and serve an affirmation to set out all the actions taken by him to comply with the Injunction Order and given an explanation why he converted the material videos on Youtube to private videos. The Defendant was directed to attend the adjourned hearing on 25 November 2024.

9.As directed, the Defendant filed his 3^rd affirmation (“the 3^rd Affirmation”)  on 13 November 2024. Without leave, the Defendant further filed and served “The Defendant’s Reply to the Plaintiff’s Statement of Facts” dated 22 November 2024 out of time. The Plaintiff’s Statement of Facts dated 2 May 2024 (“the Statement of Facts”)  was filed in support of her ex parte application for leave to issue the OS.

10.This is the hearing for the purpose of sentencing.

The Injunction Order and the Defendant’s breach

11.I gave an account of the background facts leading to the grant of the Injunction Order and my reasons for granting the Injunction Order in Poon Ki Chi v Poon Chuk Hung Jason [2024] 2 HKLRD 851 (“the Injunction Decision”)  and I shall not make any repetition thereof in this Judgment. Suffice it to say, the Defendant, then acting in person, did not adduce any evidence to oppose the Plaintiff’s application and even did not attend the hearing of the Plaintiff’s application.

12.The Injunction Order is in the following terms:

“1. An injunction be granted to restrain the Defendant whether by himself, his employees, servants and/or agents or otherwise, from publishing and/or republishing by any means or causing the publication and/or republication of and/or howsoever participating in the publication and/or republication of the Defendant’s FB Words (as defined in paragraph 11 of the Statement of Claim herein)  and the Defendant’s YT Statements (as defined in paragraphs 19 to 21 of the Statement of Claim herein)  or similar words defamatory of the Plaintiff and/or containing false allegations against the Plaintiff in so far as it relates to:-

(a)  The theft of the White Jade Guanyin Buddha Statue; and

(b)  The theft of the Masks;

2. The Defendant do forthwith remove and cause to be removed the defamatory statements mentioned in paragraph 1 hereinabove or similar words defamatory of and/or containing false allegations against the Plaintiff from all websites or other public platforms within his control, including but not limited to:-

(a)  https://www.facebook.com/JasonPoonHongKong/; and

(b)  https://www.youtube.com/@chinatmedia.”

13.Obviously, in simple terms, the Defendant is injuncted from publishing and republishing any statements about the alleged theft of the White Jade Guanyin Buddha Statue (“the Buddha Statue”)  and the Masks (as defined in the Statement of Claim in HCA 514/2024)  and the Defendant is compelled to remove and cause to be removed such statements from his Facebook posts and Youtube videos.

14.The Injunction Order with the penal notice was served on the Defendant on 8 April 2024. MK Lam started acting for the Defendant on 16 April 2024.

15.According to the Statement of Facts, the Defendant’s breaches of the Injunction Order include the following matters:

(1)  Despite the several editions of the offensive posts in his Facebook account done on 13, 14, 22, 27 March and 2 April 2024, his pre-edited posts containing the alleged defamatory statements can still be retrieved and read in the edit history up until 1 May 2024.

(2)  The Defendant failed to remove 5 videos, namely EP801, EP806, EP808, EP809, EP810, (“the 5 Offensive Videos”)  from his Youtube channel and up until 1 May 2024 they remained publicly viewable and accessible. These videos contain similar defamatory statements relating to the alleged theft of the Buddha Statue and the Masks.

16.The solicitors for the Plaintiff issued to the Defendant a letter dated 19 April 2024 (“the Demand Letter”)  demanding the Defendant’s compliance with the Injunction Order by his removal of the relevant Facebook posts and the 5 Offensive Videos by 22 April 2024. As of 1 May 2024, the Defendant did not reply to the Demand Letter.

Applicable legal principles

17.Both Mr Tam, for the Plaintiff, and Mr Chan helpfully draw my attention to the relevant authorities setting out the guiding principles applicable to this matter.

18.First, in China Shanshui Cement Group Limited and Ors. v Zhang Caikui and Anor. [2018] HKCFI 1192, at §4, Madam Au Yeung J, for the material prinicples, referred to her previous decision in Arboit v Koo Siu Ying (No 2)  [2016] 3 HKLRD 154, §§2-10:

“(a)  The starting-point is to acknowledge that contempt of civil court orders is a serious matter and that court orders are made to be obeyed.  A prime consideration of the court in sentencing contempt is to signal importance of demonstrating to litigants that the orders of these courts are to be obeyed. By “litigants”, it is clearly referring to litigants in general and not just the contemnor himself.

(b)  The object of the sentence is both to punish conduct in defiance of the court’s order and to serve a coercive function by holding out the threat of future punishment as a means of securing the protection which the order was primarily there to do. The court has to balance the 2 objects.

(c)  The sentence for contempt may range from a fine to a term of imprisonment.

(d)  Imprisonment should be regarded as a sanction of the last resort.  Any custodial sentence should be as short as possible consistent with the circumstances of the case.

(e)  The court may suspend a term of imprisonment for such period or on such terms as the court deems fit. This is an “absolute discretion” but it would be difficult to think of circumstances where a suspended order should be made when nothing further remains to be done to comply with the order.

(f)  The court will consider if there are aggravating factors, mitigating factors, and acts to purge the contempt.

(g)  Relevant factors (which are not exhaustive)  include:

(i)  The nature of the order and breach in question, and the extent of the breach.

(ii)  Whether the contempt was contumacious or unintentional, the reasons, motives and state of mind.

(iii)  Whether the claimant has been prejudiced by virtue of the contempt and whether the prejudice is capable of remedy.

(iv)  Whether the contemnor appreciates the seriousness of the deliberate breach.

(v)  Whether the contemnor has cooperated.

(h)  As circumstances of contempt vary greatly, there is little mileage to be gained from the citation of other cases on sentence.”

19.Mr Chan refers to the decision of Lisa Wong J in Kot See For v Chan Leong Hang [2021] HKCFI 498 in which the learned judge said this (at §§26-27):

“26. Sir Gerard Brennan NPJ authoritatively laid down these principles in Kao, Lee & Yip v Donald Koo Hoi Yan (2009)  12 HKCFAR 830 at [6], [21], [24], [30]:

(1)  The objective of civil contempt proceedings is the maintenance of the court’s authority. The administration of justice would be undermined if any court order could be disregarded with impunity.

(2)  An allegation of civil contempt must be proved strictly. The contemnor’s guilt is to be proved beyond reasonable doubt.

(3)  Where the alleged contempt is based on a failure to comply with a court order, it is necessary to (a)  construe the relevant order to ascertain its meaning and operation; (b)  determine if the defendant in fact complied with the order so construed; and (c)  consider whether any failure to comply was accompanied by the state of mind necessary to establish punishable contempt.

27. As to the relevant state of mind in civil contempt:

(1)  It is sufficient to demonstrate (a)  that the contemnor’s conduct was intentional in the sense of consciously, voluntarily and unaffected by any mistake, as opposed to casually, accidentally or unintentionally; and (b)  that he knew the facts which rendered it a breach of the order.

(2)  It is not necessary to show that the defendant realised that his conduct would constitute a breach.

(3)  Reasons, motives and understandings of the contemnor may be highly relevant to penalty but not to liability.

See Arlidge, Eady & Smith on Contempt (5^th ed, 2017), §§12-94 – 12-95; Kao, Lee & Yip, [45], [46] & [53] per Sir Gerard Brennan NPJ.”

Discussion

20.The Defendant has repeatedly indicated his admission of the charge of contempt in open court both by himself and through his counsel. What remains for determination is the appropriate penalty for the Defendant’s contempt only.

21.The offensive Facebook posts and the Youtube videos including the 5 Offensive Videos were all created before the grant of the Injunction Order. The Defendant must forthwith remove these posts and videos upon being served with the Injunction Order on 8 April 2024.

22.For the purpose of sentencing, it is imperative to find out how the Defendant reacted to the Injunction Order and what he did to comply with the same purportedly. His conduct in these proceedings should also be examined.

The nature and the extent of the breach

23.I have studied the 3 affirmations filed by the Defendant.

24.In the 1^st Affirmation, the Defendant explained that all the 5 Offensive Videos were removed from the public domain after the Labour Day holiday, i.e. 1 May 2024. He pointed out that by an email dated 27 March 2024, he had informed the Plaintiff’s solicitors of the geographical restrictions of EP799 and EP808 by Youtube upon complaint by the Plaintiff.

25.For the Facebook posts, the Defendant maintained that he did not know that from the edit history, his offensive posts could still be seen after their deletion.

26.In the 2^nd Affirmation, in addition to explaining his absence at the 21/10 Hearing, the Defendant purportedly gave a fuller picture of his admission of guilt.

27.There, the Defendant alleged that MK Lam did not fully explain to him the contents of the 1^st Affirmation before asking him to sign it. He maintained that the Injunction Order arguably should not have been granted in the first place.

28.The Defendant went on to say that MK Lam advised him that they would lodge an appeal against the Injunction Order on his behalf. It transpired that they had never done so.  

29.It was submitted at the 7/11 Hearing that the Defendant believed that the Injunction Order would be released after the appeal and hence the Defendant thought that he did not need to take action before the appeal. This submission apparently suggested that the Defendant had done nothing to comply with the Injunction Order.

30.This alarmed me since this assertion was at odd with what the Defendant said in the 1^st Affirmation. There, he alleged that he had purged the contempt. Hence, I directed the Defendant to file a further affirmation to give a full account of exactly what he had done to comply with the Injunction Order.

31.Pursuant to my direction, the Defendant filed the 3^rd Affirmation.  There, the Defendant explained that first, before the grant of the Injunction Order, on 20 March 2024, he deleted all the offensive posts in his Facebook account.

32.Moreover, on 26 March 2024, the Defendant removed EP799 and EP800 from public view by changing the setting and choosing the “not open to public” option.

33.The Defendant then alleged that on or about 12 April 2024, after he reviewed the Injunction Order, he instructed his assistant to check 822 videos on his Youtube channel and a few hundred Facebook posts in his account. On the following day, his assistant reported to him that none of the posts and videos fell within the ambit of the Injunction Order. Thus, the Defendant thought he had complied with the Injunction Order.

34.After the receipt of the Demand Letter, on 23 April 2024, a paralegal of MK Lam called Gary had a discussion over the phone with the Defendant and they shared the view that the Demand Letter was in lack of details. Gary suggested to the Defendant that MK Lam would ask the solicitors for the Plaintiff for details. The Defendant exhibited some text messages exchanged between Gary and him purportedly evidencing this discussion. All I can see is a question raised by the Defendant as to whether the Demand Letter to the Plaintiff was available in the afternoon of 24 April 2024. I can see no reply to this question. Nor is there any follow-up message.

35.The Defendant allegedly waited for the update of Gary and not having heard from him, on 29 April 2024 at around 7:00 p.m., the Defendant asked his clerk to remove the 5 Offensive Videos from public view by turning them into private videos.

36.On 1 May 2024, the Defendant himself checked his Facebook account and his Youtube channel and confirmed that all the offensive posts had been deleted and all the 5 Offensive Videos have been turned into private videos. Hence, the Defendant was satisfied that the Injunction Order had been fully complied with.

37.The Defendant confirmed that on 13 June 2024, he deleted the relevant posts altogether and the edit history of such posts disappeared as well.

38.Lastly, the Defendant explained that he converted all the offensive videos into private videos in the genuine belief that they would become assessable to him only. He did not delete them altogether because he believed that he needed to preserve those evidence for the defamation action.

39.The gravamen of the complaint of the Plaintiff is that the Defendant failed to make sure all the offensive Facebook posts and Youtube videos vanished forthwith upon service of the Injunction Order on him on 8 April 2024.

40.The Defendant last edited such Facebook posts to remove the alleged defamatory statement before the Injunction Order was made. In my view, it takes an unusal amount of curiosity for a reader to delve into the edit history of a particular edited post. I accept that, to a large extent, the breach is minor and the damage caused to the Plaintiff as a result of this breach should be very limited.

41.For present purposes, I accept the Defendant’s explanation that he did not know thagt one could still read his offensive posts after edition by reading their edit history.  However, the Demand Letter, which the Plaintiff was not obliged to issue, gave the Defendant an unequivocal warning and the Defendant had no reason not to delete such posts from his Facebook account altogether immediately after the receipt of the Demand Letter. In particular, committal proceedings in case of non-compliance were threatened in the Demand Letter.

42.Now I turn to the 5 Offensive Videos. The Defendant was allegedly advised by MK Lam that the terms of the Injunction Order were clear. The Defendant should know what videos must be removed from his Youtube channel to comply with the Injunction Order. It was the Defendant who created such videos and uploaded them onto his Youtube channel. He should know their contents very well and that they contained the allegations of theft committed by the Plaintiff. It could not take him more than half an hour to delete them from his Youtube channel.

43.It is neither credible nor necessary for the Defendant to ask his assistant to review more than 800 videos to find out which of them contained the allegedly defamatory statements. He made such allegations of theft within a specific period of time only and all he needed was to review those videos created during that period. The Defendant merely wants to make the compliance of the Injunction Order seem labourious and onerous. In fact, it should be easy and straightforward.

44.I accept, for present purposes, that the Defendant has effectively purged the contempt by turning the 5 Offensive Videos into private videos. Only his invitees and he could have access to his private videos and there is no evidence that the Defendant has ever allowed any invitees to view such videos. Mr Tam fairly accepts that there is no such evidence. If the Defendant has ever invited anyone to view such videos, no doubt he would commit another breach of the Injunction Order.

45.However, I have perused the Demand Letter and I could not accept that the Demand Letter was in lack of particulars in any way. The 5 Offensive Videos were clearly identified. The Defendant’s wait for the reply of the solicitors for the Plaintiff is a mere excuse. There is simply no reason why the Defendant did nothing to remove the 5 Offensive Videos from public view until the evening of 29 April 2024.

46.Nor can I accept that the Defendant needed to preserve the 5 Offensive Videos for the defamation action. The Defendant could simply download such videos from his Youtube channel and save the video files in some other forms privately.

47.In conclusion, whereas the Defendant’s breach in respect of his Facebook posts is minor, the contempt in respect of the 5 Offensive Videos was only purged on 29 April 2024. 

48.To my mind, the Defendant did not do anything to further publish the alleged defamatory statements after the grant of the Injunction Order. The Defendant merely did not do his utmost to fulfil his removal obligations under the Injunction Order and I find that he did not treat the same seriously enough though he was represented by MK Lam at the material time. 

Conduct of the Defendant in these proceedings

49.In the 1^st Affirmation, the Defendant made a sincere and unqualified apology for his breach of the Injunction Order.

50.In the 2^nd Affirmation, the Defendant explained that he was advised by MK Lam that he had no defence in these contempt proceedings. To minimize the potential penalty, he thought he had to adopt a remorseful stance in the 1^st Affirmation. He went on to explain why he had a good defence in the defamation action and why the Injunction Order should not have been granted.

51.I am unable to find sincerity in the Defendant’s apology in these circumstances. 

52.For completeness, I have to give my view on the following statements made by the Defendant’s YouTube livestream videos on 27 August 2024, 3 days before the 1^st Affirmation containing the apology was filed:

“簡單講，我講嘅野全部有根有據，我哋而家呈審俾……俾法官嘅，希望法官今次呢就唔好好似上次咁啦。今次真係睇清睇楚唔好呢亂咁判”

53.Mr Tam submits that these statements show that the apology is a horrow one.

54.This is a reasonable submission. But I do not expect the Defendant to be happy with my grant of the Injunction Order. Whatever he thinks about its correctness is irrelevant. The Defendant expressed his wish publicly in a disrespectful manner that this court shuld not make a wrong decision carelessly again. This, strictly speaking, does not mean that he is not remorseful for his breach of the Injunction Order.

55.I do not take into account these statements in my sentencing accordingly.

56.Further, in his affirmations, the Defendant said a lot about his honest belief in the truth of the allegations in the offensive posts and videos and how he would justify them at trial. This certainly cannot exonerate him from his breach of the Injunction Order and has little bearing on sentencing. If anything, his intransigent position unnecessarily reiterated in his affirmations merely rubs salt into the wound of the Plaintiff.

57.After receipt of the Demand Letter, the Defendant had no excuse not to remedy the breach immediately. Yet, he sensed no urgency and waited for 10 days to act, deflecting the blame on Gary and the staff of MK Lam. This is inexcusable and unacceptable.

58.On the other hand, the parties were required to file an agreed Statement of Facts within 35 days from 5 July 2024 according to the 5/7 Directions. The Plaintiff duly sought the agreement of the Defendant on her draft agreed Statement of Facts on 27 September 2024 but the Defendant simply gave no response despite repeated reminders.

59.As for the Defendant’s absence at the 21/10 Hearing, in the absence of any evidence given by MK Lam in this matter, I am unable to make any factual finding and come to any conclusion as to whether the Defendant had an innocent excuse for his non-attendance at the 21/10 Hearing, which certainly caused a waste of court resources.

60.However, I have to make the following observations. On the Defendant’s evidence, he received a WhatsApp message on 25 September 2024 from an unknown person asking him to consider changing legal representation. I have read the messages exhibited to the 2^nd Affirmation. A person claiming to be the secretary of Mr Leung who was the Defendant’s solicitors advised the Defendant that Mr Leung had a health issue or MK Lam might cease practice. The person then advised the Defendant to consider a change of legal representation. The Defendant asked to have the request to be made in writing as he even did not know who the person was. He continued to say that because of the mishandling of the defamation action by MK Lam, he was liable to pay to the Plaintiff a sum of HK$242,330 as her costs and he asked MK Lam to wait until his claim for such an amount before they ceased practice. The person replied that in view of the Defendant’s intended claim against MK Lam, there was a conflict of interest and so the Defendant was advised to obtain new legal representation. The Defendant said that he had been unable to contact Mr Leung thereafter to verify the contents of the messages of the person.

61.In any event, the working relation between the Defendant and MK Lam does not appear to be good and the Defendant’s complete trust allegedly placed in MK Lam to represent him at the 21/10 Hearing in which he could be imposed an imprisonment term is unreasonable.

62.Under the 5/7 Directions, the Defendant was directed to file and serve a mitigation submission 14 days before the date of the adjourned hearing, i.e. 21 October 2024. The mitigation submission must be important to the Defendant and he should be concerned about its content. I cannot understand why the Defendant had not asked to have a copy of the mitigation submission well before the 21/10 Hearing or had a discussion with MK Lam about this document. If he had done so, he should have found out that it had not been prepared and MK Lam even intended to cease to act for him.

63.Regardless of the truthfulness of his explanation for his absence at the 21/10 Hearing, the Defendant plainly did not show sufficient care about these proceedings and his obligations under the directions given herein.

64.I accept Mr Tam’s submission that the last minute filing of the mitigation submission at the 7/11 Hearing is indicative of the Defendant’s uncooperative attitude. After DF took over this matter from MK Lam, the Defendant should as soon as possible make amends and ensure that the mitigation submission should be filed in good time before the 7/11 Hearing.

65.Mr Chan explained to this court that DF had spent some time to liaise with MK Lam to retrieve the papers from them and they had faced difficulties. This is a lame excuse. If the Defendant had been serious enough, he could have obtained all the relevant documents promptly after the first refusal of MK Lam.

66.I come to the conclusion that the Defendant has not been fully co-operative in these proceedings.

Personal circumstances

67.In the 1^st Affirmation, the Defendant set out his personal circumstances. By occupation, he is a merchant and company directors for various construction companies. The Defendant has been a law-abiding person with an unblemished record. He frequently speaks on social issues and he vows to protect public interest. One notable incident is his disclosure of the significant deficiencies in the construction work of the Shatin to Central Link leading to a well-known public inquiry.

68.The Defendant operates his own Youtube channel and regularly uploads his videos to the channel. His channel is popular in any view.

Further aggravating matters

69.As observed by this court in the Injunction Decision, the alleged defamatory statements relate to serious allegations of theft. They caused harm to the Plaintiff. This court found it necessary to protect the Plaintiff from such harm pending the trial of the defamation action. 

70.The evidence shows that as at 1 May 2024, each of the 5 Offensive Videos was viewed more than 40,000 times.

71.The Defendant’s breach means that the public could still watch the 5 Offensive Videos on his Youtube channel and the harm was continued until 29 April 2024. The mental distress caused to the Plaintiff is perfectly understandable.

72.There is utterly no legitimate purpose for the 5 Offensive Videos to remain in the public domain after the grant of the Injunction Order. The Defendant has no reasonable excuse. He had already reported the alleged theft to the police and the owner of the Buddha Statue did not take any action against the Plaintiff despite his full knowledge of the alleged theft.

Mitigating factors

73.The Defendant made admission of guilt at the earliest opportunities available. This is commendable.

74.The Defendant blamed his solicitors and his own assistant for causing the delay in the removal of the 5 Offensive Videos. This does not assist him at all. The Injunction Order was made against him personally and the penal notice made it clear that he had to shoulder personal liability for any breach. The Defendant had to make sure that he had carried out all his obligations under the Injunction Order.

75.This court accepts that the Defendant has effectively remedied all the breaches on 29 April 2024. He should have complied with the Injunction Order by removing all the Offensive Videos on 8 April 2024.

Sentence

76.Both Mr Tam and Mr Chan have cited a number of authorities to assist this court in sentencing. The general principles are well established and not in dispute.

77.I have examined the evidence and I can conclude that the Defendant did not intend to insist on publishing or republishing the alleged defamatory statements in his Facebook account or keeping his videos containing the alleged defamatory statements in his Youtube channel. Simply, the Defendant was less than conscientious in his compliance with the Injunction Order and was not serious enough about it. He did not appreciate sufficiently the effect of the Injunction Order and the harm which was caused to the Plaintiff by the continued publication of the alleged defamatory statements, particularly by the 5 Offensive Videos as a result of his breach.

78.Considering all the relevant matters in the round, I am of the view that an immediate custodial sentence is inevitable. Suspended sentence is insufficient to reflect the gravity of the breach and I am not convinced that there is any good reason to order suspension anyway. A short term of imprisionment for 21 days is appropriate and serves the purpose. I so order.

Costs

79.On established principles, indemnity costs is the usual order in contempt proceedings: see Kot See For, supra and Isbilen v Selman Turk [2024] EWHC 565 (Ch)  at §35.

80.I order that the Plaintiff’s costs of and occasioned by these contempt proceedings including any costs previously reserved be borne by the Defendant to be taxed on an indemnity basis. This includes the costs of the 21/10 Hearing, which was aborted, regardless of whether MK Lam was fully or partially responsible for the absence of the Defendant.

81.I received 2 Statements of Costs from the Plaintiff and a List of Objections from the Defendant (in respect of the 1^st Statement of Costs only). Mr Chan had no submission to make on the 2^nd Statement of Costs. Having heard the submissions of Mr Tam and Mr Chan, the costs payable to the Plaintiff was assessed at HK$406,000.

Mr Jeffrey Tam and Mr William Kwok, instructed by Wan Yeung Hau & Co., for the Plaintiff

Mr Vod K.S. Chan and Mr Lawrence Cheung Shing Chung, instructed by David Fenn & Co., for the Defendant