Axa China Region Insurance v. Axa China Region Insurance

HCA009975B/2000

HCA 9975/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 9975 OF 2000

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Coram: Deputy High Court Judge Longley in Court

Dates of Hearing: 4-8 February, 11-15, 18, 19, 21 March 2002

Date of Sentence: 17 April 2002

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S E N T E N C E

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1.The order of Yeung J was a personal order directed to you to hand over the documents specified in that order. What motivated the Plaintiffs in seeking the order from Yeung J was a belief that you had improperly retained documents belonging to them which enabled you to contact their policy holders and attempt to persuade them to switch their policies to Winterthur policies.

2.The evidence before the court has shown that from an early stage you were concerned to frustrate the Plaintiffs' purpose and retain certain documents or copies of certain documents which you thought would be useful to you, despite the fact that they were covered by the court order, presumably so that you would contact Axa clients and pursuade them to take out Winterthur policies.

3.It has been said by Mr Bell on your behalf that there was substantial compliance with the order of Yeung J but the fact is, despite the volume of documents you may have surrendered, you retained the documents or copies of documents most useful to you: a complete set of White cards which enabled you to know the particulars of policies taken out by clients of Axa through you, including the dates when those policies would come up for renewal. You also retained a significant volume of Proposals which would enable you to draw unfavourable comparisons with Winterthur policies.

4.In considering the appropriate sentence in a case of contempt of court, the courts are bound to bear in mind that they must make it clear that their orders cannot be flouted in the deliberate way you have done in this case. In this case the Plaintiffs have proved that you were in contempt of the order of Yeung J in 4 separate instances.

5.In my view, the gravity of these breaches warrant a sentence of imprisonment and an overall starting point of 2 months.

6.There is little that can be said in mitigation in your case apart from the fact that you are a woman of previous good character who has been successful in her line of business and apparently enjoyed a good reputation in the insurance world.

7.You have shown no remorse for what you have done. Indeed you have attacked the credibility and character of the 2 principal witnesses who came to court to disclose what you had done.

8.You yourself have lied to this court and called a number of witnesses who now work with you knowing that the evidence that they would be giving was not truthful. The expense occasioned by the length of these proceedings had been almost entirely of your own making.

9.In my view the overall starting point of 2 months is the appropriate sentence. I pass that sentence upon you in respect of each of the 4 grounds the sentences to run concurrently.

10.I have considered the submissions which have been made on the question of costs. In particular, I have taken into account that it was successfully submitted on your behalf that there was no case to answer on 4 grounds placed before the court. Although relatively little time was devoted to those grounds during the course of trial, instructions would have had to have been taken by your solicitor in relation to those allegations. I note also that affirmations were filed by your 2 sisters in relation to one of those grounds.

11.I also take into account on Wednesday 16 February the court did not sit until late in the morning because of the need for Mr Bell to read through the exhibits which the Plaintiffs had not previously intended to produce.

12.I consider that the justice of the case would be served by ordering you to pay 85% of the Plaintiffs' costs. Those costs should be taxed on an indemnity basis and be payable forthwith after taxation.

Representation:

Mr Simon Westbrook, SC, instructed by Messrs Herbert Smith, for the Plaintiffs

Mr Adrian Bell, instructed by Messrs Haldanes, for the Defendant