Li Wai Chun Transportation Co Ltd v. Chang Man Shan Yvette

HCMP 1187/2025

[2026] HKCFI 6053

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1187 OF 2025

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BETWEEN

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J U D G M E N T

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1.The Plaintiff is seeking to commit the Defendant for contempt of court for breaching the order for disclosure ancillary to the Mareva injunction granted by this Court dated 14 March 2023.

Background

2.The Plaintiff is a family company running a mini-bus service.  It was founded by the parents of its current shareholder and director Mr Lam Kin Wah (“Mr Lam”).

3.Mr Lam and the Defendant were married in 1996.  They were divorced by a decree absolute in September 2019.

4.In November 2001, Mr Lam’s parents retired and he became a 60% shareholder and director of the Plaintiff, and the Defendant a 40% shareholder and director.  After the divorce, the Defendant remained one of the two directors of the Plaintiff until she was removed in May 2022.

5.In May 2019 after the decree nisi was granted, the Defendant purchased a flat in the Artisan Garden, Kowloon (“Artisan Property”) with a mortgaged loan.

6.In August 2020, the Defendant moved to the United Kingdom.  In December 2020, the Defendant invested in a restaurant called Hong Kong Choi at Broughton Lane, Salford, Greater Manchester.  The Defendant was a 20% shareholder and her daughter Britta was a 60% shareholder of the holding company of Hong Kong Choi.

7.In February 2021, the Defendant purchased a residential property for £288,000 at Rake Lane, Manchester (“Rake Lane Property”).

8.After the Defendant was removed as director of the Plaintiff, it was alleged that the Defendant had authorized numerous payments from the Plaintiff to the tune of over HK$34 million to herself, her parents, and one Mr Choi, apparently the boyfriend of the Defendant.  Payments were also made to a political organization of one Mr Leung, former boyfriend of the Defendant, by Li Wai Chun Management Co Ltd, an associate of the Plaintiff under the control of the Defendant.

9.On 6 May 2022, the Defendant was removed as a director of the Plaintiff by Mr Lam. 

10.On 20 July 2022, Messrs Huen & Partners, Solicitors (“H&P”) acting for the Defendant wrote to Messrs Edward Lau Phoebe Ng Solicitors LLP (“ELPN”) and asked for an explanation of the removal.

11.On 29 July 2022, ELPN wrote to H&P alleging breach of director’s duties by the Defendant, and set out a series of unauthorized transfer of funds by the Defendant.

12.On 26 August 2022, the Defendant wrote to the Labour Tribunal in support of a claim by a former employee of the Plaintiff Mr Poon Shing Hin (LBTC 2077/2022) stating that Mr Poon left the employment of his own accord and he was entitled to various bonuses.

13.On 9 February 2023, the Plaintiff commenced an action HCA 198/2023 alleging misappropriation by the Defendant (“Main Action”).  The former accountant of the Plaintiff and Mr Poon were sued as the 2^nd and 3^rd Defendants therein.  In November 2024, the Writ and Statement of Claim were amended and re-amended to add the Defendant’s parents, Mr Choi, and one Ms Lau, former employee of the Plaintiff as Defendants.

14.On 10 February 2023, ELPN wrote to H&P stating that HCA 198/2023 had been commenced, asking whether they had instructions to accept service for the Defendant.

15.On 13 February 2023, H&P wrote to ELPN stating that they had no instructions to accept service and the Defendant was domiciled in the UK.

16.On 2 February and 15 March 2023, the Defendant entered into the provisional and formal sale and purchase agreement through an attorney for the Artisan Property at HK$5.28 million (“Artisan SPA”).  The Artisan SPA was discovered upon land search on 27 February 2023. 

17.On 14 March 2023, the Plaintiff applied ex parte for a domestic Mareva injunction whereby it was granted by this Court (“Subject Injunction”).

18.Ancillary to the Subject Injunction, the Defendant was required to disclose her assets in Hong Kong with individual value exceeding HK$10,000 in writing within 7 days of service of the Subject Injunction (§3), and to confirm the disclosure on oath with 14 days of service of the Subject Injunction (§4) (“Disclosure Order”).

19.On 15 March 2023, the Subject Injunction was served by facsimile on the Defendant’s conveyancing solicitors Messrs Edmond WC Chow & Co (“EC&C”) ordering the freezing and non-distribution to the Defendant of the sale proceeds of the Artisan Property.  

20.The completion of the Artisan Property took place on 31 March 2023 and the proceeds were freezed.

21.It is not disputed that Subject Injunction and the concurrent Writ under the Main Action were served on the Defendant via courier delivery at the Rake Lane Property, the premises of Hong Kong Choi restaurant and the Defendant’s accountant in the UK.  The effective date of service was agreed to be on 19 March 2023.

22.The Subject Injunction contained a Penal Notice that if the Defendant neglect to obey or comply with the Order, she might be held to be in contempt of Court and might be sent to prison or fined or liable to process of execution to compel her to obey the Order.

23.On 19 March 2023, the Defendant transferred her 20% share in Hong Kong Choi to her daughter Britta.

24.On 24 March 2023, H&P appeared on the return date before Cheng J and consented to the continuation of the Subject Injection.

25.On 26 March 2026, the Defendant did not make disclosure in writing pursuant to §3 of the Disclosure Order.

26.On 2 April 2023, the Defendant did not make disclosure on oath pursuant to §4 of the Disclosure Order.

27.On 11 April 2023, the net proceeds of sale for the Artisan Property of HK$1,669,985.78 was paid into Court by EWCC&C pursuant to the Subject Injunction.

28.On 14 April 2023, an application for registration of the gratuitous transfer of the Rake Lane Property by the Defendant to Britta was made to the Land Registry in the UK.

29.On 19 June 2023, the Defendant belatedly filed an affirmation in the Main Action for the disclosure of her assets in Hong Kong under the Disclosure Order (“Disclosure Affirmation”).  The additional assets disclosed were the Defendant’s MPF account, and Citibank Account and HSBC accounts with insubstantial balances.

30.On 11 August 2023, the Plaintiff obtained a worldwide Mareva injunction before D’Almada Remedios J (“HK WW Mareva”).

31.On 25 August 2023, the Plaintiff obtained a mirror worldwide Mareva injunction before Green J in the English High Court (“UK WW Mareva”).

32.On 4 September 2023, the Defendant’s solicitor appeared before DHCJ MK Liu on the return date of the HK WW Mareva was eventually not opposed, and hence, continued.

33.On 5 September 2023, an undertaking not to dispose of, deal with and/or diminish the shares in Hong Kong Choi and the Rake Lane Property was executed by Britta in favour of the Plaintiff in the UK.  A copy of the undertaking was sent by the Defendant’s solicitors in Hong Kong to the Plaintiff’s solicitors in Hong Kong on the same day.

34.On 7 September 2023, the UK WW Mareva was continued on the return date by Roth J in the English High Court.

35.On 14 March 2025, the Plaintiff obtained an order for further disclosure before DCHJ G Lam (“Further Disclosure Order”).

36.On 4 April 2025, an order for further disclosure mirroring the order of DCHJ G Lam was obtained in the English High Court.

37.On 8 April 2025, the Plaintiff applied ex parte for leave to commit the Defendant for contempt for breach of the Disclosure Order.

38.On 9 May 2025, the Defendant filed her 1^st Affirmation pursuant to the Further Disclosure Order.  Thereafter, further affirmations were filed.

39.On 10 July 2025, leave was granted to the Plaintiff by this Court to commit the Defendant for contempt.

40.On 17 July 2025, the Plaintiff issued the Originating Summons for the committal (“OS”).  The OS was served on the Defendant in the UK by a process server.

Issues

41.The issues in the Joint Statement of Issues are:

(1)  Was the breach of §§3 and 4 of the Subject Injunction Order intentional and/or contumelious?

(2)  As proposed by the Plaintiff:

Should the Defendant be committed for contempt, if proved, in the circumstances?

(3)  As Proposed by the Defendant:

Should the Defendant be committed for contempt, if proved, in all the circumstances, inter alia, (a) whether the Defendant’s contempt was merely technical, and (b) whether the present committal proceedings is an abuse of process?

42.It is common ground between the parties that contumelious and contumacious contempt carry the same meaning.

Plaintiff’s case

43.Mr Chan, counsel for the Plaintiff at both leave application and at trial, proffered these arguments when applying for leave to commit the Defendant for contempt:

(1)  The Defendant delayed in making disclosure in order to gain time for disposing of the Rake Lane Property and the shares in Hong Kong Choi in the UK in dissipation of assets;

(2)  There were ongoing proceedings for disclosure of assets both in Hong Kong and in the UK and the Defendant was in continuing breach in the UK, and it is the public policy for contempt proceedings that pressure was brought to bear on the Defendant to comply with ongoing obligation to disclose.

44.These two arguments on dissipation were repeated in the OS.

45.For (1), Mr Chan indicated at closing submission that the Plaintiff would no longer be relying on the contumelious limb, but that the Defendant were in intentional breach.  The matter will be dealt with in the Discussion section below.

46.For (2), Mr Chan was asked by this Court at the leave application why contempt proceedings were not taken out in the UK, whereby he said it would be considered. 

47.Contempt proceedings for failure to make disclosure was later taken out in the High Court in the UK but had been dismissed.

48.Originally, the Plaintiff relied on circumstantial evidence against contumelious breach.  Now, the case of intentional breach was based on the Defendant’s admission of negligence in not reading the Disclosure Order and actual delay.

Defendant’s Case

49.The Defendant’s evidence for her defence were contained in both her affirmations and oral evidence upon cross-examination. 

50.In the Disclosure Affirmation filed for the Disclosure Order, the Defendant made her explanation for delay in §7:

“Lastly, I do apologize for the delay in complying with paragraphs 3 and 4 of the Order.  I am now residing in UK and it was difficult for me to look for Hong Kong lawyers remotely.  Given the time difference, it also takes me much time to communicate with and give instructions to my solicitors.  Further, I am managing a restaurant business in UK which takes up much of my time.  I have no intention whatsoever to disregard any order of the Court and I humbly seek the Court’s indulgence in granting me time extension to comply with the Order in this regard.”

51.And under the contempt proceedings, the Defendant filed her Affirmation dated 15 December 2025 (“1^st Affirmation”).

52.In the 1^st Affirmation the Defendant stated that she did not know of the Main Action until she was served with the Subject Injunction in March 2023.  However, she corrected it at her own initiative that she knew of the threatened proceedings in mid-February 2023 when H&P sought instructions from her on acceptance of service, which was a month earlier than the service of the Writ and Subject Injunction on her.

53.The Defendant said the Subject Injunction was delivered to her neighbour at the Hong Kong Choi restaurant in the UK on 17 March 2023, but she only got hold of it on 19 March 2023.  The documents weighed 5 kg.  She just read the cover letter and noticed it was an injunction with a court hearing on 24 March 2023, and did not notice the Disclosure Order until sometime in April 2023.

54.On 19 March 2023, she asked her friend Elyse in the UK who is a solicitor from Hong Kong.  She was told the injunction was to freeze her assets in Hong Kong including the proceeds of sale of the Artisan Property, and there was a hearing on 24 March to determine whether to continue the injunction, but not told of the Disclosure Order.

55.On 20 March 2023, the Defendant spoke to a friend who is a judge in Hong Kong.  She asked whether she could be absent from the hearing on 24 March.  Her friend said she could not ignore it.  He said if she wanted to save costs and not to instruct counsel, she could instruct a solicitor to continue the injunction.

56.The Defendant said she knew no familiar solicitor in Hong Kong.  She could only think of H&P who had dealt with employee compensation for the Plaintiff which were handled by her staff Ms Lau.  Hence, she asked Ms Lau to contact H&P to represent her.

57.On 22 March 2023, she received a reply from H&P.  She was required to pay costs of HK$68,954.

58.On 24 March 2023, H&P appeared on the return date and consented to the continuation of the Subject Injunction.  Thereafter, H&P had not contacted her at all.  After about a week, she asked Ms Lau to contact H&P and was told the solicitor had gone on a trip.

59.Thereafter, the Defendant had flipped through the Subject Injunction, but not line by line and word for word, and did not notice the Disclosure Order.  She admitted she was negligent in not reading it carefully.

60.On 31 March 2023, she received an email from H&P attaching the continuation order by Cheng J made on 24 March 2023.  The Order simply stated the continuation of the Subject Injunction without mentioning any of the terms.

61.The Defendant said up until then, she still did not have direct conversation with H&P.  Each time, she expressed her views through Ms Lau, and she only received minimal response from H&P.  She was not satisfied with H&P and intended to change solicitors.  Her friend Elyse introduced Mr Ivan Tang of Ivan Tang & Co (“IT&C”) to her.

62.The Defendant said she was not hurried to change solicitor then because she did not know that the Subject Injunction had the Disclosure Order nor that time for compliance had already lapsed. 

63.On 12 April 2023, H&P sent an email in Chinese to her which mentioned the Disclosure Order, and that H&P would be asking for the Plaintiff’s consent for extension of 28 days.

64.The Defendant said she only read the email of 12 April on 18 April because there was no push notification for her email.  Also, it was Easter holidays and the restaurant was very busy. 

65.It was the first time she knew about the Disclosure Order.  She could not make head or tail of it and she consulted Elyse on 19 April 2023 and the Disclosure Order was explained about.

66.The Defendant said the fact that the email of 12 April 2023 contained so much information showed that H&P had hitherto not explained the matter to her.

67.The Defendant lost confidence in H&P and was determined to change solicitor.  H&P asked Ms Lau to chase her to sign the retainer but she ignored them. 

68.She then approached Mr Tang of IT&C.  She produced messages from the Signal App between Mr Tang and herself.  On 19 April 2023, the Defendant wrote that H&P was pressing her to sign things, and she asked whether Mr Tang could inform H&P that he would be assisting her, which Mr Tang replied Ok.  She later added it transpired that the deadline for disclosure of Hong Kong assets had lapsed, and Mr Tang replied not to worry for the time being.

69.On 24 April 2023, the Defendant sent another Signal message to Mr Tang asking whether he had notified H&P.  Mr Tang replied with a voice message, and the transcript stated that he was thinking of representing the 2^nd and 3^rd Defendants in the Main Action as well, spending some time trying to contact them but of no avail.  He was not going to wait for them anymore, and would be sending the retainer for her to sign, and to file a notice of change of solicitor, and to ask for time from the Court, and told the Defendant not to worry.

70.On 2 May 2023, IT&C formally replaced H&P as the Defendant’s solicitors.  On 13 May 2023, Mr Tang arranged a tele-conference with Mr Bache Sit of counsel and the Defendant.  In the tele-conference, the Defendant again raised the Disclosure Order, and asked Mr Tang and Mr Sit whether they would make disclosure for her, and they both indicated to do so.

71.On 12 June 2023, Mr Sit prepared the draft Disclosure Affirmation, and she affirmed it at a notary in England and have it couriered back to IT&C.

72.The Defendant said she had chased Mr Tang but some WhatsApp messages were lost when the subscription to her mobile number was terminated by the Plaintiff and the number was taken up by another subscriber.

73.The Defendant said she had no intention to breach any Court order, or to refuse or delay the disclosure of assets.  She was a lay person and did not know how to deal with the matter, and had to rely on the lawyers.  Ever since she knew of the Disclosure Order, she had repeatedly reminded the lawyers, and she believed the lawyers would obtain extension of time for her. 

74.The Defendant said the reasons she first gave in §7 of the Disclosure Affirmation were not the full reasons but neither were they untruths.  The reasons for delay also included the irresponsibility of H&P in not notifying her in time after the return date, and IT&C and Mr Sit using much time in preparing the Disclosure Affirmation.  She believed that Mr Tang he would ask for time when he said not to worry.

75.The Defendant said before she was served with the Subject Injunction, she was already minded to transfer to Rake Lane Property and the shares in Hong Kong Choi to Britta.  During that time, she had warning signs about her health, and was worried about the vagaries of life.  She planned to make early distribution of her properties so that Britta would have something to hang on to.

76.She produced a medical report dated 27 July 2021 by Dr N Abidin, Consultant Cardiologist of the Salford National Health Service, stating palpitation which was most likely benign and she was advised to undergo echocardiography and 7-day ambulatory ECG monitoring,

77.On the transfer of Rake Lane Property, the Defendant produced email correspondence first dated 15 March 2023 where she asked her solicitor in England Mr Fergal O’Cleirigh the procedure and time frame of transferring her property to her daughter.

78.As to Hong Kong Choi, the Defendant said she had already transferred 60% shareholding to Britta back in September 2021 before the restaurant started business.  Britta was involved in the running the restaurant since its establishment.  In March 2023, she transferred the remaining 20% shareholding Britta according to her original plan.

79.The Defendant made another Affirmation dated 9 June 2026 (“2^nd Affirmation”) exhibiting an email dated 17 December 2025 sent by her English accountant Mr Mat Guest stating that they had discussed the transferring of her 20% shareholding and directorship to Britta in early March and they had a meeting well before 17 March 2023.

80.The Defendant stated that if she had any intention to stall for time in order to transfer her English assets, she would not have made disclosure in June 2023, because as at that time the Rake Lane Property was still in the process of being transferred, which still was not complete when the worldwide injunctions were obtained in August 2023.

81.The Defendant stated that the Plaintiff’s application for contempt was motived by personal vendetta and malice, aiming at using up her legal costs in the numerous interlocutory applications and putting improper pressure on her, and hence, was an abuse of process of the court.

82.The Defendant said she was cited for contempt in England but the application was dismissed.  The count was that she refused to file an affirmation in the further discovery proceedings there mirroring the Further Disclosure Order in Hong Kong, by simply producing an affirmation filed in Hong Kong in order to save costs.  The contempt proceedings were dismissed by reason of lack of proportionality.

83.Mr Bache Sit, the Defendant’s counsel in the Main Action who drafted the Disclosure Affirmation gave evidence for the Defendant.

84.Mr Sit said the Disclosure Affirmation was drafted by him.  The explanations in §7 of the Affirmation were not the main reasons but minor reasons for the delay in disclosure.  They were put together based on facts gathered from the Defendant.  The real reason for the delay was due to the lawyers being dilatory in May and June 2023.

85.Mr Sit said he was first given the papers on 27 April 2023.  His brief was to prepare the Defence in the Main Action, and unfreeze the money in the Subject Injunction.  When reading the Subject Injunction, he only read the part on the injunction, but not the Disclosure Order, because he had not been briefed to deal with disclosure.  In any case, Mr Sit admitted he was not careful enough in reading the Subject Injunction.

86.Mr Sit first learnt about the failure to comply with disclosure in the tele-conference with the Defendant on 13 May 2025.  He said Miss Anita Mak, solicitor of IT&C, was supposed to draft the Disclosure Affirmation, but the staff at IT&C were otherwise engaged.  He offered to draft it but did not do so until June 2023 because he was busy.  He should have drafted the Disclosure Affirmation sooner, and the solicitors should have asked for time.  He admitted he was at fault in the delay.

87.A WhatsApp chat group was created amongst the Defendant, Mr Sit and Miss Mak.  On 9 June 2023, Mr Sit asked the Defendant about her bank accounts and items in the safe deposit box over $10,000 in value.  They identified a Citibank Account, HSBC account and MPH account not already listed in the Subject Injunction.

88.On 10 June 2023, a draft affirmation was uploaded to the chat group by Mr Sit.  Mr Sit stated that if the draft were agreeable to the Defendant, it should be sent to the other side first thing on Monday (i.e. 12 June 2023) for their advance reading so as to minimize the delay in complying with the order.  The Defendant could then take her time to have the document affirmed in the UK and post it back to Hong Kong.  Mr Sit also uploaded some exhibit sheets for the Disclosure Order.

89.On 12 June 2023, the Disclosure Affirmation was finalized, but no advance unsworn copy was sent to the other side.  Mr Sit said he should have reminded Miss Mak on the matter.  On 26 June 2023, the Disclosure Affirmation was filed after a delay of 3 months.

90.Mr Sit accepted there was a breach of the Subject Injunction Order by failing to comply with the ancillary disclosure.  He agreed that a reasonable and competent solicitor should have applied for time.

Legal Principles

91.The mental element in civil contempt has been set out by the Court of Final Appeal in Kao Lee & Yip v Koo Hoi Yan (2009) 12 HKCFAR 830, per Brennan NPJ at 855-856 §45:

“45. In Spectravest Inc v Aperknit Ltd [1988] FSR 161, 173-174 per Millett J:

‘To establish a contempt of court, it is sufficient to prove that the defendant’s conduct was intentional and that he knew of all the facts which made it a breach of the order.  It is not necessary to prove that he appreciated that it did breach the order … Authority for this conclusion may be found in Heatons Transport (St. Helen’s) Ltd. v. Transport & General Workers’ Union ([1972] 3 All ER 101 at 116-117, [1973] AC 15 at 108-110), and Mileage Conference Group of the Tyre Manufacturers’ Conference Ltd.’s Agreement ([1966] 2 All ER 849, [1966] 1 WLR 1137).  In the first of those cases, Lord Wilberforce described as contempt conduct which was ‘neither casual nor accidental and unintentional.’

The House of Lords again approved the Stancomb principle in Director of Fair Trading v. Pioneer Concrete (UK) Ltd [1995] 1 AC 456.  It has been applied in Hong Kong.  In Citybase Property Management Ltd v. Kam Kyun Tak (No. 1) [2003] 2 HKC 98, Ma J, in the course of finding a defendant guilty of civil contempt in breaching an order requiring her to cease using premises for the processing of food, observed (at p.103):

‘Unlike in criminal proceedings, where mens rea has to be demonstrated, there is no requirement in civil contempt proceedings to show that the alleged contemnor intended to disobey the order (ie his conduct was contumacious).  It is sufficient to proof (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.’

Although I would doubt, with respect, the dichotomy which Ma J drew between the liability for crime and the liability for civil contempt, it is clear that liability for civil contempt does not depend on a contumacious intent.”

92.In Jeanny Helena Franslay v Fung Ariel Mei Shan [2021] HKCFI 258, G Lam J (as he then was) held at §34:

“34. To establish contempt of court, it is not necessary to show that the defendant’s conduct was contumacious; it is sufficient to prove that his conduct was intentional and that he knew of all the facts that made it a breach of the order, that is, the breach was not casual or accidental or unintentional: Kao, Lee & Yip v Donald Koo Hoi Yan (2009) 12 HKCFAR 830, §§43‑46, 53, 55.  In general, it is necessary for the plaintiff to prove not only that the defendant knew that an order had been made but also that he knew of the material terms of the order: Pang Zhengyun & another v Chow Chun Kit, the personal representative of the estate of Chow Wing Cheuk (HCMP 2251/2016, 14 September 2017), §21.  If, however, a defendant knows of the order but chooses not to acquaint himself with its terms and then acts in breach of them, he may be held liable in contempt: Re Witten (an infant) (1887) 4 TLR 39; Sino Wood Investment Ltd v Wong Kam Yin (No 2) [2004] 2 HKLRD 324, §§27-29.

93.In Wong Luen Hang & anor v Chan Yuk Lung & anor [2023] HKCFI 304, Linda Chan J set out the guiding principles at §§36-38, 54 & 60:

“36. The principles are not in dispute.  As submitted by Mr Tai, in hearing an application for committal for civil contempt, the court will first construe the orders to ascertain their meaning and operation, then to determine whether the defendant has in fact complied with the orders as so construed, and finally to consider whether any failure to comply was accompanied by the state of mind necessary to establish punishable contempt (Kao, Lee & Yip v Koo Hoi Yan (2009) 12 HKCFAR 830, §21).

37. As regards mental element in civil contempt:

(1) It is not necessary to prove that the alleged contemnor’s act was contumacious, i.e. that there was direct intention to disobey the order.  It is sufficient to prove that the defendant’s conduct was intentional (i.e. not casual or accidental and unintentional disobedience of the order) and that he knew of all the facts which made it a breach of the order.  It is not necessary to prove that the defendant appreciated that he did breach the order (Kao, Lee & Yip, §§43-46).

(2) It is immaterial that the breach was committed in reliance on a third party’s advice, even legal advice.  Questions as to the bona fides of the persons who are in contempt, and their reasons, motives and understandings in doing the acts which constitute the contempt of court, may be highly relevant in mitigation of the contempt (Kao, Lee & Yip, §53).

(3) It is not enough for a person who has breached a court order to say he did his best. The intention and efforts of the contemnor, the delay of his ex-legal advisers and bona fide reliance on legal advice are only relevant to mitigation (Dr Q v Health Committee of Medical Council of Hong Kong (No. 2) [2014] 2 HKLRD 57, §§66-67).

38 The following principles are also relevant:

(1) There is an element of public policy in punishing civil contempt since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity (Kao, Lee & Yip, §42).

(2) Given the seriousness of a finding of contempt, the court must be satisfied beyond reasonable doubt before making such a finding (Kao, Lee & Yip, §30; Citybase Property Management Ltd v Kam Kyun Tak (No 1) [2003] 2 HKC 98, §§13, 16).

(3) A motion for committal is a means of putting pressure on the contemnor to obey the order, but it is not this alone.  It is also a means of imposing any penalty thought proper in respect of the contempt that has already been committed (Re Grantham Wholesale Fruit, Vegetable and Potato Merchants Ltd [1972] 1 WLR 559, 565F).

54. In any event, as submitted by Mr Tai, a defendant’s lack of knowledge of the consequence of a breach cannot be an answer where a person deliberately chose or was careless in failing to make himself acquainted with the terms of the order.  As stated by Kay J in Re Witten, (an infant) (1887) 4 TLR 36, at 39 (applied in Sino Wood Investment Ltd v Wong Kam Yin (No. 2) [2004] 2 HKLRD 324, §27):

‘[I cannot] for one moment accept the excuse the father had made that he had not seen the order, and had therefore disobeyed innocently.  If a man did not choose to see the terms of an order which had been made against him, and chose to act without seeing the terms of the order, he must take the consequences.  Carelessness in failing to make himself acquainted with the terms of the order was as gross a contempt as if he had disobeyed the order.’

60.  … In any event, it is no answer for D1 to assert that he had no knowledge of the terms of the Orders or of the undertaking as it was his own decision not to see the terms of the Orders and to ignore them.  Having acted in this way, D1 must take the consequence of the breachl.”

94.In High Fashion New Media Corp Ltd v Leong Ma Li (2026) 29 HKCFAR 250, Lam PJ helpd at §§90-91 that:

“90. … A genuine casual, accidental or unintentional breach of an implied term of an injunction would not render a defendant liable as he would be protected by the exception postulated by Warrington J in Stancomb v Trowbridge Urban District Council [1910] 2 Ch 190. But that exception does not excuse the negligent failure to comply with an injunction…

91. It is a false premise to say that the Stancomb exception exonerates a negligent breach of an injunction… The kind of mistake Jacob J alluded to in Adam Phones Ltd v Goldschmidt [1999] 4 All ER 486 (Ch D) was a scenario where a man had honestly tried to obey the order, but made a mistake in overlooking a trivial and technical item. It was in such a context that Sir Gerard Brennan NPJ characterised such a mistake as falling within the “unintentional” exemption in the Stancomb principle.”

95.In Kao, Lee & Yip v Koo Hoi Yan op. cit., Brennan NPJ also discussed the Stancomb principle at §53:

“53. There is no reason, either of policy or authority, for adopting a criterion of liability for civil contempt that is stricter than that defined by the Stancomb principle. The exception for breaches that are not “casual or accidental or unintentional” ensure that no injustice is done when the breach of the court order is occasioned by such a cause. But when an act or omission in breach of a court order is done or made consciously, voluntarily and unaffected by any mistake — that is, not casually, or accidentally or unintentionally — it is immaterial that the breach was committed in reliance on a third party’s advice, even legal advice. Re Mileage Conference Group of the Tyre Manufacturers’ Conference Ltd’s Agreement [1966] 1 WLR 1137 is the authority chiefly cited for the proposition that reliance on legal advice is no defence if a breach is established…”

96.In Secretary for Justice v Sung Ho Tak Edward [2022] 1 HKLRD 779 per Coleman J (as he then was) held that the Court was entitled to expect breaches of Court orders to be brought to the attention of the Court within a fairly short time.  Enforcement steps which were considered necessary or appropriate or proportionate if taken within weeks or months of the breach of the order might no longer be appropriate or proportionate if only pursued years later (see §§29 to 30).

97.In Century Equipment Co Ltd v Excellent Co Ltd (HCA 2542 of 1998, 3 June 1999 unrep.), Yeung J (as he then was) held that where the orders in question no longer serve any purpose, there is no point in enforcing the order by committal.

98.In AG v Times Newspapers Ltd [1974] AC 273 (HL(E)), Lord Diplock held at 312B that:

“The courts have therefore been vigilant to see that the procedure for committal is not lightly invoked in cases where, although a contempt has been committed, there is no serious likelihood that it has caused any harm to the interests of any of the parties to the litigation or to the public interest.”

99.The evidential principles applicable to contempt proceedings have been set out in Jeanny Helena Franslay v Fung Ariel Mei Shan op. cit. at §37:

“(1) The burden lies on the plaintiff to prove the alleged contempt beyond reasonable doubt: Kao, Lee & Yip v Donald Koo Hoi Yan (2009) 12 HKCFAR 830, §30.

(2) Whilst the defendant may bear an evidential burden in relation to particular matters he has raised to exculpate himself, there is no legal burden on him to prove anything affirmatively: Concorde Construction Co Ltd v Colgan Co Ltd (No 2) [1984] HKC 253, 257; Ip Pui Lam Arthur & another v Alan Chung Wah Tang & another (CACV 214/2016, 16 February 2017), §4.3.

(3) No adverse inference against the defendant may be drawn from his failure to call one or more witnesses or adduce certain evidence: China Metal Recycling (Holdings) Ltd v Chun Hei Han [2018] 1 HKLRD 455, §§36-37; Kissel v HKSAR (2010) 13 HKCFAR 27, §82.

(4) If by cross‑examination to credit a plaintiff proves that the defendant’s evidence cannot be relied on, and he has testified that he did not do a certain act, the plaintiff does not thereby prove that he did it: Hobbs v Tinling (C T) and Co Ltd [1929] 2 KB 1, 21. The plaintiff has to prove his case affirmatively, though this may be done by inference.

(5) For an inference of fact properly to be made: (a) it must be grounded on clear findings of primary fact; (b) the inference must be a logical consequence of those facts; (c) beyond being logical, the inference must be “irresistible”, that is, it must be the only inference that can reasonably be drawn on the basis of those facts: Winnie Lo v HKSAR (2012) 15 HKCFAR 16, §115. The third requirement has also been expressed in other ways, such as that “the inference must be compelling — one (and the only one) that no reasonable man could fail to draw from the direct facts proved”: Kwan Ping‑bong v R [1979] HKLR 1 at 5, or that the facts must be such as to exclude reasonable hypotheses consistent with innocence: Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387, §185.

(6) In other words, if the court concludes from the evidence that there is more than one reasonable inference to be drawn and at least one of them is inconsistent with a finding of contempt, the plaintiff fails: Daltel Europe Ltd v Makki [2005] EWHC 749 (Ch), §30.

(7) The standard of proof beyond reasonable doubt does not mean that every piece of evidence that does not by itself establish a fact beyond reasonable doubt should be disregarded. It is sufficient if the body of evidence relied on, viewed as a whole, satisfies the burden: Myers v R [2015] UKPC 40, §46; HKSAR v Lo Hung Kwong [2000] 3 HKC 474, 480.

(8) In appropriate cases, proof of a fact by inference to the requisite standard may be achieved by taking various pieces of circumstantial evidence together, like cords comprised in a rope, or strands in a cable, or converging rays of light producing a body of illumination, such that ‘there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion, but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of …’”.

Discussion

100.The parties have agreed on the relevant terms of the Disclosure Order, i.e. the disclosure assets in Hong Kong each exceeding HK$10,000 by certain dates, and there is no issue as to the breach.

101.In the Joint Statement of Issues, Issue (1) was whether the breach was intentional and/or contumelious (ie contumacious).

102.In closing submissions, Mr Chan indicated that he was not pursuing the contumelious limb, and just relying on the intentional limb, as it might not be able to prove on the criminal standard.

103.Mr Chan submitted that the Defendant was served with an injunction with a Penal Notice warning her of imprisonment for neglect.  She was careless in choosing not to read through the entire order and the breach was not accidental.

104.Mr Chan submitted that here was no need for the Defendant to know the terms of §§3 & 4 of the Disclosure Order.  The law established that negligence in not getting oneself acquainted with the terms of the order would not be a defence (Wong Luen Hang op. cit. §54) nor would the mere reliance on the lawyers be enough (Kao, Lee & Yip op. cit. §54).

105.Mr Chan submitted that after knowing the requirements of the Disclosure Order on 18 April 2023, the Defendant could have easily done two things: (1) to tell H&P to ask for extension of time; and (2) to make disclosure in writing to be confirmed by an affirmation later.

106.Mr Chan submitted that if the Defendant was not satisfied in H&P’s service after the return date, she should take more active steps on the Subject Injunction.  Losing confidence in H&P was no excuse to not acting herself or to engage another law firm promptly. 

107.After the Defendant first communicated with Mr Tang and told him the discovery of Hong Kong assets had passed the deadline, the next time she chased up the matter was at the tele-conference with Mr Tang and counsel on 13 May 2023.

108.The Defendant must know that changing lawyers means further delay.  She should have asked for extension of time as suggested by H&P in the email on 12 April 2023. 

109.Mr Siu, counsel for the Defendant, submitted that the Court would still have to determine on the facts (1) whether the Defendant did not read the Disclosure Order when she received the Subject Injunction on 19 March 2023; (2) whether she only read H&P’s email dated 12 April 2023 referring to the Disclosure Order on 18 April 2023.

110.Although the dispute of facts is now much more limited, it is still necessary to assess the Defendant’s credibility as general background as her evidence was shown to be inconsistent under cross-examination, and her blameworthiness.  The point will be become more apparent later.

111.Mr Chan submitted that an inference could be drawn that the Defendant have read the Disclosure Order before she read H&P’s email dated 12 April 2023.  The grounds were (1) she knew English; (2) she had flipped through the documents many times and had read some of it.

112.The Defendant was cross-examined on her English standard.  She tried to give the impression that her English was not very good.  She said she had to use Google to find out the meaning of “injunction”, and AI to compose her submissions, also with help from her daughter Britta. 

113.Be that as it may, it remained that she had a bachelor degree in Communications.  She addressed the English High Court in English herself well enough.  I find the Defendant was able to understand the salient points of the legal documents in this case.

114.In the Disclosure Affirmation, the Defendant gave three reasons for the delay.  The first was the difficulties to find a Hong Kong lawyer remotely from the UK.  But she managed to instruct H&P and had a tele-conference with counsel on 23 March 2023 before the return date.  The tele-conference is also contrary to her assertion that she had scant communication with H&P and she was merely acting through Ms Lau.  The Defendant explained that her choice of lawyer was relatively limited. Again, she managed to find another firm IT&C through her friend Elyse.

115.The Defendant alleged that she only knew H&P as they handled the Plaintiff’s employment compensation matters through her staff Ms Lau.  But in fact H&P had acted for her in July 2022 on her removal as a director of the Plaintiff, and H&P had sought her instruction whether to accept service in the Main Action in February 2023.  This also contradicted the Defendant could only liaise with H&P through Ms Lau.

116.The second reason was time difference.  However, looking at the WhatsApp messages with IT&C, there were instant communications or delay for 8 hours (which is the time difference between Hong Kong and the UK).  So time difference was not really a major problem. 

117.The third reason was she was busy managing the restaurant.  Again, the Defendant did manage to give instructions to H&P in time for the return date, and later to IT&C and Mr Sit on the Disclosure Order.

118.Hence, I find the Defendant had exaggerated the problem in finding and giving instructions to solicitors in Hong Kong from the UK.

119.The Defendant now said the main problem was delay on the part of her lawyers.  She said H&P first sought her instructions for extension only on 12 April 2023.  I accept that H&P’s conduct at the early and critical stage had left a lot to be desired for.

120.The first Signal message from Mr Tang on 19 April 2023 told the Defendant not to worry but nothing seemed to have been done.  The voice message of Mr Tang on 24 April 2023 showed delay on his part as he was waiting for instructions from the other Defendants in the Main Action which had nothing with the Disclosure Order.

121.In any case, Mr Sit who drafted the Disclosure Affirmation took the blame for the delay in May and June 2023.  He said the reasons in §7 were facts gathered from the Defendant, and not in so many words, put up as formal excuses.  The real reason was he had failed to read the Disclosure Order in the first place, and both IT&C and himself failed to pay undivided attention to drafting the Disclosure Affirmation forthwith.  Mr Sit said it was not something lawyers would be too eager to admit.

122.I find Mr Sit a sincere and forthright witness.  His evidence was admissions against self interest.  He said if he were to protect IT&C and himself, he would not have come to Court to give evidence.  However, whether it would exonerate the Defendant is another matter.

123.Mr Siu pointed to objective contemporaneous evidence that the Defendant had raised time and again the deadline for the Disclosure Order had lapsed.  Also, the fact remained that after Mr Sit had finalized the draft on 12 June 2023, the Defendant had it affirmed before a notary on 15 June 2023, and then it was filed on 19 June 2023. 

124.Mr Chan indicated that it was not his case that Mr Sit was colluding with the Defendant on the delay.  Neither do I find as such conspiracy as I have found Mr Sit to be an honest witness.

125.I also negate the Defendant had put on the charade of reminding the lawyers the deadline had passed but she wanted to delay.  It would not sit well with the criminal as standard of proof. 

126.The fact that Mareva injunctions had been granted in both Hong Kong and in the UK must mean there were risks of dissipation of assets.  However, it is another matter on the criminal standard of proof is another, especially in the context of delay in order to achieve dissipation.

127.Mr Chan queried the timing of sale of the Artisan Property and it was sold at a loss.  However, the fact remained that the Defendant was emigrating to the UK, and the property market in Hong Kong had been in a falling streak by 2023.

128.Mr Chan submitted that the Defendant said she did not know of the Main Action when the Rake Lane Property was transferred to Britta was a lie as she corrected it on her own motion.  Hence, the property was sought to be transferred after she was threatened with the Main Action. 

129.The Defendant’s purported explanation before the English High Court for the transfer because of Inheritance Tax was shown to be untrue because property value brought it within the offspring exemption. 

130.The Defendant also attributed her palpitation as a reason for the transfer.  Mr Chan pointed out that the NHS medical report opined it was benign.  But the fact remained the she had such condition which was first documented in 2021 way before any transfer had taken place.

131.The Defendant said the period of delay was insufficient to see through the transfer of the Rake Lane Property.  Of course, she could be labouring in her subjective mind a complete transfer notwithstanding any objective ineffectuality.  But this was not established in evidence.

132.Mr Chan queried that Hong Kong Choi was closed down when it was profitable.  The Defendant said it was more profitable to sub-let the shop premises rather than running a restaurant.  In any case, it was also not established that the closing down was anything sinister.

133.Notwithstanding that there were many inconsistencies or even lies probably in the Defendant’s evidence, one cannot be sure that she was delaying the compliance of the Disclosure Order in order to buy time for dissipation of her assets.  

134.It must be borne in mind that under the criminal rules of evidence, lies can only be used as corroborating circumstantial evidence only if they were motivated by realization of guilt, but not if there were any innocent reasons such as exaggerating the evidence to bolster a defence.  The latter cause is possible form the way she gave evidence.

135.Anyway, it is now really not so important to determine whether the Defendant had read the Disclosure Order early on, as the case for contempt has shifted to one of negligence rather than contumacy.

136.Afortiori, it is also not so important to determine the timing of reading H&P’s email dated 12 April 2023, as the lapse of 6 days until 18 April 2023 does not see to loom as large given that the case is now not on dissipation of assets, and there were still the 2 months delay before the eventual filing of the Disclosure Affirmation.

137.Even the Defendant was not aware of the Disclosure Order until she read H&P’s email on 18 April 2023, the primary responsibility to comply with a Court order must be personal to the party against whom the order was made.  She also admitted reading the Penal Notice. 

138.If an alleged contemnor could be excused of a breach by reason of not reading or not reading carefully through the terms of the order, it would be practically impossible to enforce a breach of order against him/her.  While a genuine casual, accidental or unintentional breach of an injunction would not render a defendant liable, a negligent breach of not reading the order in full under circumstances where he/she had the opportunity to do so and was able to understand them will not exonerate the responsibility (see High Fashion New Media Corp op. cit. & Kao Lee & Yp v op. cit.).

139.Further, the personal responsibility will not cease by reason that the party has engaged lawyers for compliance of the order on his/her behalf (see Kao, Lee & Yip. cit.).

140.Mr Siu referred to the case of ZQA & Ors v SCC & Anor [2021] 3 HKC 458 where Cheung JA held that the “unintentional” exemption is applicable where the alleged contemnor honestly intended to comply with the order, entrusting the task to his lawyers, but the dilatory conduct on the part of the lawyers resulted in breach of the order.  In those circumstances, it cannot be said that the alleged contemnor had the requisite intention to breach the order.

141.The facts in ZQA v SCC op. cit. were that an application was made for financial relief by the relatives under the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481).  G Own DJ ordered the respondents (as executors to the estate) to file an affirmation in answer to interrogatories served on them, including the question on the value of the “net estate” under Cap. 481, etc.  The respondents belatedly filed a 1^st affirmation and then a 2^nd affirmation, which was sworn but left unfiled for almost half a year.  The respondents blamed the solicitor which was not challenged.

142.The applicants obtained leave to cite the respondents for contempt for failing to file the requisite affirmation on interrogatories.  Among other things, the District Judge found that the 1^st affirmation was filed as an opposition to the financial application under Cap. 481, and not in the usual format with answers clearly referable to the interrogatories, and not stated to be answers to the interrogatories even if it were also intended for such a purpose. 

143.The respondents were found to be in contempt and sentenced to 3 months imprisonment.  They appealed to the Court of Appeal.

144.In the appeal judgment, Cheung JA cited Brennan PJ in Kao, Lee & Yp op. cit. at §53.  But His Lordship said ZQA v SCC was an exceptional case.  First, the answers to the interrogatories involved technical and legal points which were meant to be dealt with by professionals, the respondents had provided instructions to the solicitor, and had made enquiries and consciously chased him for the progress.  The 1^st affirmation was not prepared in the requisite format of answer to interrogatories and did not contain any explanation of non-compliance within time.  The 2^nd affirmation was only filed 6 months after being sworn, and almost half a year after leave for contempt was granted.  The appeal was allowed with personal costs ordered against the solicitor.

145.The facts in ZQA v SCC op. cit. are very different from the present case.  Here, once the Defendant was apprised by H&P of the deadline for compliance of the Disclosure Order had lapsed and an extension of time should be sought, she should have given instructions that it be done forthwith.  There is no excuse to say she was dissatisfied and lost confidence with H&P.  Further, the scope of disclosure was much more limited in the present case: merely the Defendant’s MPF account and two additional bank accounts with insubstantial balance.

146.Then came IT&C and the Defendant should have known that there were bound to be extra delay with change of solicitors.  She should have used her best endeavours to make up lost time.  Granted she did remind the lawyers the lapse of the deadline and she was told not to worry, she should have taken more active steps to ask for time, say, by instructing IT&C to do so straight away, or to write to the other side herself rather than sit and wait for the lawyers.

147.Notwithstanding that the lawyers have been dilatory, I do not find that the Defendant should be exonerated of personal responsibility.  Once she was aware of the terms of the Disclosure Order, it is well within her capability to comply with them.  Further, she has not used her best endeavours to chase up the lawyers.

148.Hence, I found that there was intentional breach under the Joint Statement of Issues under Issue (1).  And I do not find the breach technical. 

149.Then we come to Issue (2) and (3) of the Joint Statement of Issues: whether the Defendant should be committed for contempt in all the circumstances.

150.Mr Siu submitted that there was delay of 2 years in bringing contempt proceedings, material non-disclosure of Britta’s undertaking on the Rake Lane Property and Hong Kong Choi shares at leave application. 

151.Mr Siu submitted that the Defendant had complied with the Further Disclosure Orders in Hong Kong and the UK and it was unfair for the Plaintiff to allude to still undisclosed hidden assets, when the Subject Injunction was varied by E Fung J for the release of legal expenses.

152.Mr Chan was asked by the Court as to compliance of the Further Disclosure Orders.  Mr Chan submitted that while the Plaintiff was not satisfied with the disclosure, there was as yet no ground to show that the further disclosures were incomplete.  Hence, there is no need to deal with the so-called hidden assets point.

153.Mr Chan submitted that notwithstanding dissipation of assets was no longer relied on, the breach was not mere technical breach.  Ancillary disclosure is an important aspect of a Mareva injunction, and breach on disclosure is a serious matter.  The Defendant is under an ongoing duty to disclose, say for her income from time to time.

154.Mr Chan submitted that the Court should have a bird’s eye view of the matter.  That is of course so, and what is sauce for the goose is sauce for the gander.

155.It must be borne in mind the sea change from contumelious breach to negligent breach.  That will have effect on the appreciation of the period of the delay, the effect of Britta’s undertaking as to status quo of the Rake Lane Property and Hong Kong Choi 20% shares.

156.The period of 3 months was not de minimis in itself, but will fare much less than if there were an intent to dissipate the assets.

157.Mr Chan submitted that he considered the non-disclosure of Britta’s undertaking immaterial at the leave application.  I am not delving into the duty of full and frank disclosure at the leave application, because with the shift from contumelious breach to negligent breach (which was not the case at the leave application), I need only consider what effect Britta’s undertaking will have on the finding at this point in time.

158.The cumulative effect of the delay of 2 years in instigating contempt proceedings, the delay of the breach, the benefit of Britta’s undertaking on the Plaintiff’s interests, and pro tanto compliance of the Further Discovery Orders, and the purpose and utility of the committal, the overall consideration is that the Defendant should no longer be committed for contempt.

Conclusion

159.In the event, the application for committal for contempt is dismissed.  

160.Lastly, I thank Mr Chan and Mr Siu for their submissions.

Mr Zenith Chan and Mr Alvin Cheung, instructed by Edward Lau Phoebe Ng Solicitors LLP, for the Plaintiff

Mr Sampson Siu, instructed by Lee & Yik Lawyers, for the Defendant