Kam Min Ho Andrew and Kam Man Kit Thomas, The Joint Executors and Trustees of the Estate of Kam Chan Cheng, Deceased v. Lam Ho Chi

HCMP 1338/2023

[2025] HKCFI 3718

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS No 1338 OF 2023

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J U D G M E N T

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A. BACKGROUND

1.This is an application by the executors of KCC to substitute themselves for the Committee as the plaintiff.

2.On 18 October 2023, this Court handed down a judgment (“the Judgment”) finding, in the absence of the Defendant, that he was guilty of contempt of court in breaching the Disclosure Order (Judgment, §29).  Hearing of his mitigation and sentencing took place on 18 August 2025 (“August Hearing”).

3.In the course of the August Hearing, this Court pointed out that the Deceased passed away on 3 May 2024, after the Judgment was handed down.  Pursuant to section 27(4) of the Mental Health Ordinance, Cap 136, the Committee was discharged by operation of law. 

4.Pursuant to the last will of KCC dated 28 January 2022, Mr Andrew Kam and Mr Thomas Kam were appointed as the joint executors and trustees of KCC’s estate (“the Executors”).

5.On 23 April 2025, probate was granted to the Executors. 

6.The August Hearing had to be adjourned for the Executors to be substituted as the plaintiff. 

7.Lam &Co, solicitors for the Executors as intended plaintiff, only first took out an ex parte summons on 23 July 2025 to change the capacity of the Plaintiff.  Given the advanced stage of these proceedings, this Court considered that it was not appropriate to apply ex parte.

8.The Plaintiff has since taken out an inter partes summons on 18 August 2025 instead.  The supporting affirmation was made by a solicitor of Lam & Co. However, Mr Kam Man Kit has attended in person and affirmed in the witness box that he agrees to the present application.

B.  LEGAL PRINCIPLES

9.Under Order 15, rule 7(1) Rules of the High Court (“RHC”), where a party to an action dies, the cause of action survives.  The action shall not abate by reason of the death.

10.Under rule 7(2), Where at any stage of the proceedings in any cause or matter the interest of any party devolves upon some other person, the Court may, if it thinks it necessary in order to ensure that all matters in dispute in the cause may be effectually and completely determined and adjudicated upon, order that other person to be made a party to the cause or matter and the proceedings to be carried on as if he had been substituted for the first mentioned party.

11.The present cause or matter in the contempt proceedings survives the death of KCC. His Executors have an interest in carrying on the present proceedings to substitute the Committee who no longer has power as a matter of law.  It is appropriate to grant an order to continue as well.

12.Under rule 8(4), the Executors shall not become a party until, where the order is made under rule 7, the order has been served on him under rule 7(4) or, if the order is not required to be served on him, the order has been noted in the cause book.  And where by virtue of the foregoing provision a person becomes a party in substitution for some other party, all things done in the course of the proceedings before the making of the order shall have effect in relation to the proceedings before the making of the order shall have effect in relation to the new party as they had in relation to the old.

13.The Court has power to give a substitute order even after judgment: Mercer Alloys Corp v Rolls Royce Ltd [1971] 1 WLR, 1520.

14.It would have been better if the application were made soon after the Defendant was brought before the Court on 7 July 2025.  However, the delay would not invalidate these proceedings as the Executors’ powers took effect from the date of death of KCC.  The Executors are in fact 2 of the members of the Committee. The same firm of solicitors and counsel acted for the Committee throughout the contempt proceedings leading up to the Judgment, and now for the Executors.  No prejudice could have been caused to the Defendant and the Defendant does not need to adduce further evidence upon the amendment.  Proceedings since the death of KCC till today would not be invalidated because of the effect of Rule 8(4).

15.It is thus appropriate to grant an order to substitute the Executors for the Committee.  An order to carry on the proceedings should also be granted.  Upon the death of KCC, there is no longer any need to refer to the Executors and KCC by initials in the case title and daily cause list.

16.I therefore order as follows：

(1)  Kam Min Ho Andrew, Kam Man Kit Thomas and Kam Man Chun Johnny, the Committee of the Estate of Kam Chan Cheng, a mentally incapacitated person (“Committee”) cease to be the Plaintiff in these proceedings on 3 May 2024;

(2)  Kam Min Ho Andrew and Kam Man Kit Thomas be made a party to these proceedings, and these proceedings be carried on as if they had been substituted for the Committee as the Plaintiff;

(3)  Leave be granted to the Intended Plaintiff to amend the Originating Summons filed herein on 18 August 2023 as per the draft Amended Originating Summons annexed to the Inter partes Summons filed herein on 18 August 2025 by the Intended Plaintiff (“Inter partes Summons”), and to re-file and serve the said Amended Originating Summons by 8 September 2025;

(4)  The Ex-parte Summons filed by the Intended Plaintiff herein on 23 July 2025 be withdrawn with no order as to costs;

(5)  Save for paragraph 4 above, costs of this application be in the cause.

17.I now proceed to sentencing of the Defendant. 

C.  BACKGROUND TO THE AUGUST HEARING

18.It was about 2 years after the Judgment was handed down that the Defendant was stopped by the police by chance whilst he was wandering on the street on 7 July 2025. He was immediately brought before this Court on the same day (“the July Hearing”) and bail was granted to him.  This Court gave him leave to file an affirmation to provide his reasons for mitigation or dispute that he had breached the Disclosure Order.

19.It transpired that on 13 October 2023, the Defendant had filed an affirmation in person (“D’s Affirmation”) stating how he had disposed of the HK$4.75 million that he received from KCC or the Defendant’s mother.  The Plaintiff (then KCC’s Committee) did not receive D’s Affirmation until 19 October 2023.  As the Court was not aware that D’s Affirmation had been filed, the Judgment was given without the benefit of D’s Affirmation.

20.The Defendant has not filed any affirmation for his mitigation despite leave granted at the July Hearing.  His solicitors came on board on 15 August 2025. Mr Chan, the Defendant’s counsel, disclosed a number of facts in his written submission.  Without disrespect to Mr Chan who was trying his best to assist in the limited time available to him, this was totally unsatisfactory as it deprived the Plaintiff of the opportunity to refute his assertions by evidence.

21.As the sentencing involves liberty of a subject, this Court will consider D’s Affirmation to see if the Defendant had a deliberate intention to breach the Disclosure Order or has purged his contempt.

D.  LEGAL PRINCIPLES ON SENTENCING FOR CONTEMPT

22.I have considered the principles on sentencing in Arboit v Koo Siu Ying (No. 2) [2016] 3 HKLRD 154 and Kot See For v Chan Leong Hang, [2021] HKCFI 2014, Lisa Wong J.  In simple terms, sentencing is to punish conduct in defiance of a court order and to serve a coercive function.  It may range from a fine to imprisonment.  Imprisonment is a sanction of the last resort and should be as short as possible, consistent with the circumstances of the case.

23.Information concerning assets is uniquely within the defendant’s knowledge and is pertinent to police a Mareva injunction.  A fine is inappropriate when the defendant has not purged or offered to purge his contempt.  Any deliberate and substantial breach of disclosure provisions of an injunction is a serious matter, which normally attracts an immediate custodial sentence measured in months.  Where there is a continuing failure to disclose relevant information, the court should consider imposing a long sentence to encourage future cooperation by the contemnor.

24.The court may suspend a term of imprisonment 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.

25.I would add that suspension is not appropriate where it is necessary for the Plaintiff or the Court to police the compliance with the order.

26.The court should consider if there are aggravating factors, mitigating factors and acts to purge the contempt. The extent of the breach and the contemnor’s state of mind, whether the claimant has been prejudiced by the contempt and whether the prejudice is capable of remedy, whether the contemnor appreciates the seriousness of the breach and whether he has cooperated.

27.As circumstances of contempt vary greatly, there is little mileage to be gained from citation of other cases on sentencing.

E.  D’s AFFIRMATION

28.D’s Affirmation did not exhibit any document.  In gist, he claimed that:

(1)  He had not been living with his mother since 2021 and had not been working for years. He had been living on the support of friends and had to change abode every now and then.  He was not aware of or received the Order except as told by his mother, that the Court required him to disclose the whereabouts of the $4.75 million (“the Sum”) which Mr Kam to him as a gift and his assets of a value of $10,000 or above.

(2)  He spent the Sum by speculating in Bearbrick and other fashionable items, worth several thousands to ten thousands.  He had not kept records of those transactions.  Part of the transactions was by cash/FPS.  He could not decide through such frequent purchases and sales whether he had operated at a profit or a loss.  All transactions in and out were done through his only and one bank account.  Unless specified in the bank statements, he could not remember the actual situation of deposits and withdrawals.

(3)  Between 21 May 2021 and 3 December 2021, he had deposited $3,978,562 and withdrawn $1,885,119.  He had seldom used that account since 2022 and from recollection, it only had a small balance of cash.  He considered that he had lost close to $2,100,000.

(4)  He had spent about $542,393.80 “according to his records” on fashion for himself or as gifts to others. 

(5)  In 2022, he had to sell some personal items for living expenses and is not sure if the items included those in sub-paragraph (4).

(6)  He confirmed that he had not owned any asset worth $10,000 or above.

29.It is plain from paragraph 13 of D’s Affirmation that the Defendant had squandered the Sum in about 6 months.

30.Even based on the Defendant’s own evidence, D’s Affirmation was filed late and was inadequate.

31.The Affirmation was late as being filed only 8 ½ months after the due date (2 February 2023).  Mr Chan informed the Court that the Defendant only first heard about the Disclosure Order in August 2023.  This is hard to believe because the Defendant’s accounts had been frozen by the Injunction Order.  He could not have failed to ascertain the reasons therefor and discover the Disclosure Order. 

32.The Defendant claimed, through Mr Chan, that he was never informed of the Disclosure Order but only the Injunction Order.  However, he was represented by Peter Cheung & Co (who came off the record after the Disclosure Order was made) and then Or & Partners (between 1 March and 7 June 2023).  Those firms were never asked to verify the Defendant’s assertion and I decline to accept it. 

33.The Defendant also stated that after he was informed of his failure to comply with the Disclosure Order in August 2023, he started to act in person and was not even informed that Or & Partners had ceased to act in June 2023.  I find this incredible because the Notice to Act in Person was signed by the Defendant himself, showing that he knew his solicitors had come off the record. 

34.The Defendant claimed that after filing D’s Affirmation, he had a hot quarrel with his mother on the following day and they had a serious fallout.  He moved away from home.  He had been living with his friends for 2 years and was not aware of there being a warrant of arrest.  Even accepting such assertions, the Defendant has never refuted this Court’s findings in the Judgment that he had evaded service before that.

35.Anyhow, the Defendant accepted that it was his responsibility to pay attention to a court order.  He accepted that his ignorance of the Disclosure Order and his delay in taking action were inexcusable.

36.D’s Affirmation was inadequate:

(1)  It disclosed the existence of one bank account only, that of Hang Seng Bank.  Mr Chan’s submission disclosed that there were 3 bank accounts altogether and some bank statements were ready for disclosure to the Plaintiff’s solicitors. 

(2)  He claimed to have $400,000 in his Hang Seng Bank account, as he admitted to the Court at the hearing on 7 July 2025.  Mr Chan’s submission stated that that bank account had closed and D2 needed more time to get the relevant bank statements.  His oral submission, based on instructions, was that Hang Seng Bank forced D2 to close it.  So when was it closed?  And where had the $400,000 gone?

(3)  He has not disclosed the whereabouts of the $1.88 million withdrawn from the Jockey Club Account.

(4)  There is no evidence that he had lost about $2.1 million on betting.

(5)  The Court was told at the July Hearing that D’s “trading business” had been affected by the Injunction Order (Judgment, §26).  He would have needed capital to operate his business. However, he had not disclosed his business nor the fact that it generates an income of $10,000 per month.

37.Based on D’s current evidence, the $4.75 million was squandered on gambling, speculation in crypto currency, fashionable items and living expenses.  There is continuing breach in failing to make full disclosure.

F.  FURTHER DISCLOSURE

38.Mr Chan informed the Court that 3 sets of bank statements were ready for disclosure:

(1)  Those for the Hang Seng Bank account for June 2021 to December 2021; as the account has been closed, D2 needed more time to get the statements for other periods;

(2)  Those for MOX Bank for July 2022 to December 2023;

(3)  Those for ZA Bank for July 2022 to December 2023.

39.Since the August Hearing, the Defendant has further produced bank documents:

(1)  Hang Seng Bank, for the year 2022 until closure of this account;

(2)  MOX Bank and ZA Bank, up to 2025.

Mr Yau confirmed that the Plaintiff has received those documents.  The Defendant asked for time to file a supplemental affirmation to comply with the Disclosure Order.

G.  MITIGATING FACTORS

40.Despite the late and incomplete disclosure in D’s Affirmation, D2 has made an effort to comply with the Disclosure Order.  Although the contents were not backed up by documents, it could be seen that there were details provided down to the exact cents insofar as the Jockey Club Account and spending on fashionable items were concerned.

41.He (whilst unrepresented) tendered an unreserved apology to the Court at the July Hearing, and made no denial of his fault.  I accept his apology. 

42.While he may not have deliberately breached the Order, the Defendant had plainly failed to pay regard to its significance and failed to ascertain its true ambit.

43.The Plaintiff has suffered prejudice in not being to police the Mareva injunction in time when the Defendant withheld information as to his assets of an individual value of $10,000 or more and as to the $1.88 million that he had withdrawn from the Jockey Club Account.  The Plaintiff had to spend a lot of costs to trace him, commit him for contempt. 

44.D2 is now aged 27.  Apparently, he has never lived a serious life of hard work or vision.  His lives on the generosity of his friends.  He trades on line in fashionable items with a monthly income of around $10,000 per month.  He has not maintained a good relationship with his mother.  He was just arrested by chance.  He has not disputed the Court’s findings in the Judgment that he had evaded service.  He has now moved back to live with him mother at Tsz Wan Shan in compliance with the bail terms.

45.Not much weight would be put on the fact of his being a first offender as the public must not be misled into thinking that every person has one chance of disobeying a court order.  In any case, there are no special personal circumstances to be taken into account.

46.Each case should be looked at on its own facts.  I remind myself that the Defendant is found guilty for breach of the Disclosure Order, not the Injunction Order. Accordingly, I place no weight on the circumstances in which it is suspected that the Defendant acted in concert with his mother to deceive Mr Kam into paying him huge sums.

47.Taking all circumstances into account, I consider a custodial sentence of 3 months to be appropriate but reduce it to 2 months to take account of the mitigating factors.

48.There is no reason to suspend the term of imprisonment for him to purge the contempt.  He already had two chances to do so, by D’s Affirmation and since the July Hearing. The purging is not near complete.  Suspension is not appropriate where it is necessary for the Plaintiff or the Court to police the compliance with the order. 

49.I therefore order an immediate custodial sentence of 2 months.  I give time for the Defendant to file an affirmation to further comply with the Disclosure Order within 42 days of his release from prison.  There shall be liberty to apply should there be purging of the contempt.

50.On costs, the Defendant shall pay costs to the Plaintiff on indemnity basis to be summarily assessed.