Choi Wai Kwong v. Choi Wai Keung

DCMP 1525/2025

[2025] HKDC 1596

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1525 OF 2025

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REASONS FOR JUDGMENT

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1.This is an action for a committal order for contempt of court.

Background

2.On 25 March 2024, this court made an Order (DCCJ 4763 of 2023) (“the Injunction”) as follows:

“1. An injunction restraining the 1^st and 2^nd Defendants from doing, whether by themselves or by instructing or encouraging any other person, obstructing or interfering with the use of the Path by the Plaintiff and his family, servants, agents and visitors;

2. The 1^st and 2^nd defendants do forthwith remove any obstruction on the Path including in particular the vehicles bearing registration No. KD 8310 (now changed to CN 1808) and an unknown black vehicle…”

3.By way of an Originating Summons dated 14 March 2025, the Applicant (who is the Plaintiff in DCCJ 4763 of 2023) took out the current application against the Respondent (who is the 1^st Defendant in DCCJ 4763 of 2023).

4.The Applicant alleged that, since the Injunction, the Respondent has repeatedly parked the unknown black car (“the Black Car”) and his taxi (“the Taxi”) in a manner that has blocked the path. On one occasion, the Applicant’s car could not gain further access along the path to approach his house to transport his wife to the hospital. On another, an ambulance could not gain further access along the path to transport the Applicant’s aunt to hospital (paragraphs 16-18 of the 5^th Affirmation of Choi Wai Kwong, Hearing Bundle p.9).

The hearing on 24 April 2025

5.Although the Respondent has already filed and served an Affirmation in opposition dated 22 April 2025 (“R’s Affirmation”), during the hearing on 24 April 2025, his Counsel Ms. Virginia Leung (“Ms. Leung”) sought leave to file and serve a second affirmation in opposition.

6.The court has taken the opportunity to point out to Ms. Leung the deficiency in the evidence in R’s Affirmation, in particular, that under paragraph 4, the Respondent stated that (as the court translates) (Hearing Bundle p.30):

“…The taxi and black car that I parked did not obstruct the path alleged by the Applicant, ordinary vehicles must be able to pass through…”

7.I made it clear to Ms. Leung that I would not entertain any arguments in whether “ordinary” vehicles could or could not pass through the path. Instead, the Injunction was that the Respondent (amongst others) was restrained from “obstructing or interfering with the use of the path” by the Applicant (amongst others) and the evidence provided by the Applicant so far showed that the Respondent’s cars were still encroaching on the path. So, in order to purge the contempt, it would be for the Respondent, by way of his second affirmation, to advance evidence to show that he has complied with the Injunction.

8.Ms Leung also suggested that the Black Car has no road tax and when the Respondent previously drove the car, the Applicant has made a complaint to the police, so he could not drive it again.

9.This line of defence was entirely misconceived: a court injunction is not a matter open for bargaining.

10.Indeed, I informed Ms. Leung if the vehicle has no road tax and should not be driven, it could still be towed by a tow truck or even be physically pushed a few feet back so that it would not encroach the path. Alternatively, the Respondent might also obtain a road tax to drive the vehicle in order to comply with the Injunction.

11.As such, the court has granted leave for the Respondent to file and serve a second affirmation and adjourn the hearing to 17 July 2025.

The current hearing

12.After all that, the Respondent did not file or serve his second affirmation at all. Ms. Leung indeed confirmed at the adjourned hearing that the Respondent would not be doing so and would only rely on R’s Affirmation.

13.After hearing submissions from both the Counsels for the Applicant, Mr. Albert Yau (“Mr. Yau”), and Ms. Leung, at the end of the hearing, the court gave the following orders:

a.  The Court has found the Respondent guilty of contempt of court and will hand down the Reasons of Judgment within 3 months, i.e. on or before 17 October 2025;

b.  The hearing be adjourned to 6 November 2025 at 10am for mitigation and sentencing;

c.  Parties shall lodge and exchange their written submissions on mitigation and sentencing no later than 14 days before the hearing, i.e. on or before 23 October 2025;

d.  The Respondent shall attend the hearing on 6 November 2025; and

e.  Costs be reserved.

14.The following are the reasons for judgment.

Legal principles

15.These legal principles are trite.

16.The approach is a three-stage test (Effiscient Ltd. v Edward Eugene Lehman [2013] 3 HKC 300):

a.  The relevant court order must be construed to ascertain its meaning and operation;

b.  It must be determined whether the defendant has in fact complied with the order as so construed; and

c.  It must be determined whether any failure to comply was accompanied by the state of mind necessary to establish punishable contempt.

17.Further, the burden is on the plaintiff to prove the defendant’s contempt beyond reasonable doubt (Hao Xiaoying v Wong Yiu Lam William & Ors, HCMP 1968/2014).

18.As for the requisite state of mind:

“As to the requisite state of mind in civil contempts, it is not necessary to prove that the alleged contemnor’s conduct was contumacious, i.e. that he directly intend to disobey the order: it is sufficient to prove (a) that he knew the facts which are said to make his act or omission a contempt and (b) that such act or omission was not accidental.” (Hong Kong Civil Procedure 2025 paragraph 52/1/17):

Reasons for judgment

19.During the hearing, Mr. Yau took the court through the extensive CCTV and video footages which were exhibited as CWK-15 to CWK-25. I would summarise the evidence as follows:

a.  CWK-15 dated 27 May 2025 (i.e. about 2 months after the Injunction) showed the Respondent apparently jump-starting the Black Car and drove it from a position in front of a gate of a house and parking it on a parking space of the side of a wall of this house. He reversed the Black Car into this space but then drove forward a little before stopping. It was clear that the Respondent had parked the Black Car in a position where the centre point of front wheel of the car was directly over the edge of the path (as shown by the edge of the pathed concrete) so the length of the car forward of the centre of the front wheel was encroaching on the path.

b.  CWK-17 to CWK-20, CWK-22, CWK-24 dated 6, 10, 11, 12, 14 and 18 June respectively showed the Respondent parking the Taxi next to the Black Car (which has remained in the same position as before). The front of the Taxi also encroached on the path on each occasion.

c.  CWK-20 dated 13 June 2024 showed the Respondent parking the Taxi. He reversed into the space first but then drove it forward so that the front again encroached on the path. He got out of the Taxi and then stopped to look at the front of the Taxi. Mr. Yau submitted that the Respondent was checking to make sure that the front of the Taxi was encroaching the path. In any case, the video footage showed that the Respondent was pausing to look at the front of the Taxi so there was no defence that the encroachment was “accidental”.

d.  CWK-23 dated 17 June 2024 showed a van attempting to reverse into the path beyond the encroachment of the Black Car but this attempt caused a minor collision with the Black Car with some damage to the front bumper of the van.

e.  CWK-25 dated 28 June 2024 showed the Applicant’s car stopping on the path before the point of the Black Car’s encroachment. It then showed a female, purported to be the Applicant’s wife, being pushed in a wheelchair out to the car.

f.  CWK-26 is a medical certificate from Pok Oi Hospital showing that the Applicant’s wife had attended the A&E Department on 28 June 2024 and had suffered from vertigo.

g.  CWK-27 dated 2 July 2024 again showed the Respondent reversing the Taxi and then drove it forward before stopping. The video also showed him looking at the front of the Taxi before leaving, just like what he did on 13 June 2024 (CWK-20).

h.  CWK-28 dated 2 September 2024 was a serious of photographs and video taken close to the Black Car showing that there was only some dead grass / branches at a low level behind the Black Car. Evidently, the Black Car could be parked further back by perhaps 5-6 feet by removing these dead grass / branches or by simply driving over them. In any case, this clearly showed that the Respondent’s claim that “my black car has been reversed to the limit because of a wall and vegetation blocking” was simply not true (paragraph 4 of R’s Affirmation, Hearing Bundle p. 30).

i.  CWK-29 dated 2 September 2024 showed an ambulance stopping on the path before the point of the Black Car’s encroachment and a lady, purported to be the Applicant’s aunt who lived further up the path, being taken out by a stretcher to the ambulance.

20.In the Applicant’s 6^th Affirmation dated 11 June 2025 (in reply to R’s Affirmation), the Applicant stated that (paragraph 6, Hearing Bundle p.35):

“…it has come to my attention that the black car had been backed up and had left sufficient space to the pathway. The Respondent undoubtedly knew that he had been acting in breach of the injunction for the last 16 months (at least) and deliberately let the black car obstruct the pathway.”

21.Mr. Yau attempted to submit further evidence purported to show that the Black Car has been encroaching on the path right up until 23 April 2024, i.e. only 1 day before the first hearing of this application. However, Ms. Leung objected to such late disclosure of evidence and the court has refused leave to adduce such.

22.Indeed, there is no need to adduce such evidence since the Applicant already gave evidence in his 6^th Affirmation (dated 12 June 2025) that the Black Car has by then been “backed up” but was previously obstructing the path for “the last 16 months (at least)”.

23.It is for the Respondent to raise evidence to dispute all such evidence. He has been given ample opportunity to do so (by way of further affirmation which leave was granted) but has chosen not to.

24.Instead, Ms. Leung confirmed that the Respondent was only relying on R’s Affirmation which, as stated above, was deficient and contradictory to the CCTV and video evidence adduced by the Applicant.

25.In any case, as stated above, the compliance to the Injunction was not “conditional” upon whether “ordinary” vehicles could or could not gain access to the path, whether the Black Car could or could not be reversed further, or whether the Black Car had road tax or not.

26.On application of the legal principles, firstly, the Respondent has not raise any defence that the terms of the Injunction are unclear and ambiguous. Indeed, I find the terms very clear and concise in both in their meaning and operation.

27.Secondly, from the evidence, including the extensive CCTV and video footages provided by the Applicant, I find it beyond reasonable doubt that the Respondent has failed to comply with the Injunction by “obstructing or interfering with the use of the Path by the Plaintiff…and his family, servants, agents and visitors” and by failing to “remove any obstruction on the Path…” at the very least between the dates of 27 May to 2 September 2024. Further, I note that the Applicant’s evidence that the duration of non-compliance was “at least 16 months” was not challenged.

28.As for the requisite state of mind, I note that there are convincing evidence (e.g. CWK-20 and CWK-27) to show that the breach was contumacious, but the law does not require the proof to go so far. Such evidence was enough to show that the breach was not merely accidental. It was not as if that there was evidence that the Black Car was parked in a way not blocking the path but due to, say, an accidental failure of the brake, it had inadvertently slipped forward. Indeed, no defence of “accidental breach” was raised by the Respondent.

29.Further, the Respondent does not raise any defence that he does not know the facts which are said to make his act or omission a contempt. He has legal representation and from R’s Affirmation, he clearly knew such because he actually denied obstructing the path (which, as stated above, the Court finds otherwise).

30.Indeed, the only useful argument that Ms. Leung raised was that by this time, the Black Car was no longer blocking the path. However, this was based on the Applicant’s own evidence in his 6^th Affirmation dated 12 June 2025. At best, this is not a defence to contempt but a matter for mitigation.

31.Based on the above considerations, the Court finds the Respondent guilty of contempt.

32.The usual procedure would have been to proceed to mitigation and sentencing in the same hearing. However, despite the fact that the Court has already warned the Respondent during the previous hearing that the Court might consider a custodial sentence, the Respondent has failed to attend the current hearing. As such, the Court has ordered that the hearing to be adjourned to 6 November 2025 for mitigation and sentencing.

33.I would take note of such conduct of the Respondent in my consideration for sentencing, pending any explanation of such during mitigation.