Re Liu Lee Yuk

Case No.HCMP 814/1982

Court

High Court CFI

Date28 Jul 1982

Judge—

Case Document

100%Judiciary

HCMP000814/1982

Contempt - Abuse of process in Matrimonial Proceedings in District Court - Jurisdiction of Full Bench - Service of Injunctions on 3rd parties - effect of Matrimonial Causes Rule 121 - deliberate abuse and harassment - observations on ex parte applications.

IN THE HIGH COURT OF JUSTICE

Miscellaneous Proceeding
Action No. 814 of 1982

IN the matter of an application by Liu Lee Yuk Ching, nee Lee Yuk Ching, for leave to apply for an Order of Committal.

and

IN the matter of DIVORCE PROCEEDINGS VICTORIA DISTRICT COURT ACTION NO. 2777 OF 1981

and

IN the matter of Order 52 Rule 2 of of the Rules of the Supreme Court (Cap. 4)

__________

Coram: Hon. Hunter & Kempster JJ. in the Full Bench.

Date: 28 July 1982

___________

JUDGMENT

___________

1. In this matter Liu Lee Yuk Ching, nee Lee Yuk Ching (whom we shall call "the wife"), with the prior leave of this Court, moves for an Order for Committal against Liu Ming Sun (whom we shall call "the husband").

2. The background is as follows. The husband and wife were married on 4th June 1969. Cohabitation ceased in July 1981 when the husband left. It is clear that both before and after this parting, the parties were in dispute not simply in relation to their family relationship but also as to their commercial relationship. At the time of the parting the latter centred on a company named Reynold Plastic Industry Limited (the Company). This was incorporated in May 1977 and later took over the business of Reyonld Industrial Company (the Firm). A fundamental dispute arises as to the capitalization and origins of the firm. In her original affirmation the wife asserted that she was the sole proprietor of this firm, it having been bought for her in about 1968 by her father and a friend for quite a modest sum. In his oral evidence before us (we having allowed cross-examination upon his affirmation) the husband seemed to be asserting that in 1968 this business was his, the wife, he said being then only a worker, and that it was the sole source of the family wealth and of the money used to buy the family assets which he now claims. What is however clear is that at the time of the parting, the parties each held 40% of the shares in the company: that the remaining 20% were vested in the wife's father and sister; and that all four persons were directors, the latter having been appointed at a general meeting held in June 1981. Following the parting, the parties did not personally meet or speak to one another, but there seems to have been some correspondence between their solicitors in relation to disputes over the affairs of the company.

3. The principal sequence of events after the parting was as follows:-

(i)		The husband took advice from his former solicitors. He decided to petition for divorce and for financial relief. His petition was filed on 23rd December 1981 in the Victoria District Court. Form the husband's references to delay, his decision to proceed must have been taken at least some weeks before this.
(ii)		The husband returned to the former matrimonial home when the wife and children were away. No date can be put to this save that it was before Christmas. It seems that he went on three occasions. On the first two he failed to gain access with his old key as the locks had been changed. On the third the amah admitted him. He stayed for about an hour searching for and removing documents. He told us that he removed documents which he thought would be of assistance to him in his Court case and particularly in respect of his financial claims against the wife, or to the I.C.A.C.
(iii)		The husband then handed to the I.C.A.C. some documents which he said evidenced the buying of gifts and presents by the wife. At the same time he asserted that he did not want the I.C.A.C. to investigate and that he did not mean to complain about his wife. We cannot accept this. The purpose of handing documents to the I.C.A.C. was plainly to achieve that which he denied and to embarrass the wife.
(iv)		On 30th December the husband took out a summons in the Victoria District Court. This document is not before us, but there is no reason for thinking that it differs materially from the ex parte Order thereafter made. On the same date the husband swore an affirmation in support of the claim in such summons.
(v)		No attempt seems to have been made to serve this summons on the wife. Instead the husband brought the matter ex parte before H.H. Judge Caird in the Victoria District Court on 8th January.

4. On 8th January 1981, the learned judge ordered that:-

"(i)		The respondent by herself, her servants or agents or otherwise be enjoined from in anywise attacking, molesting, threatening or howsoever disturbing or interfering with the petitioner until after the Inter Parte Summons returnable on the 10th February 1982 shall have been heard and determined or until further order.
(ii)		The respondent by herself, her servants or agents or otherwise be enjoined from in anywise entering or creating any disturbance or disruption at the premises of or howsoever interfering with the business and operations of Reynold Industrial Company and Reynold Plastic Industry Limited more particularly carrying on business at Unit A, 19th floor, Chaiwan Industrial Building, 20 Lee Chung Street, Hong Kong until after the Inter Partes Summons returnable on the 10th February 1982 shall have been heard and determined or until further order.
(iii)		The respondent by herself, her servants or agents or otherwise be restrained and an injunction is hereby granted restraining her from selling, transferring, interfering or howsoever dealing with any of the assets of the respondent and/or the petitioner and/or the joint assets of the respondent and the petitioner until the Inter Partes Summons returnable on the 10th February 1982 shall have been heard and determined or until further order."

5. These facts, regrettably, seem to us to demonstrate a disregard of fundamental principle in relation to ex parte applications. First, as Ormrod L.J. said in Ansah v. Ansah 1977 2 W.L.R. 760 at page 764: "Orders made ex parte are anomalies in our system of justice which generally demands service or notice of the proposed proceedings on the opposite party. ...... The Court should only act ex parte in an emergency when the interests of justice or the protection of the applicant or a child clearly demands immediate intervention by the Court. Such cases should be extremely rare, since any urgent application can be heard inter partes on two days notice to the other side". There was here no semblance of urgency: no danger to person or risk to property. There was no possible excuse for giving no notice of the application to the wife between 30th December 1981 and 8th January 1982. The distant return date confirms this lack of urgency and was in itself inappropriate.

6. Secondly, a particular duty lies upon an ex parte applicant and upon his legal advisers to put all material facts fully and frankly before the Court. With the complexities of modern commercial life leading to an increasing number of applications for Mareva and Anton Pillar Type Orders, the Court must be able to feel confidence in the materials put before it. In two respects this does not seem to us to have happened:-

(i)		Molestation. Although the affirmation did not refer specifically to any recent physical contact, its absence was masked by the husband's assertion that the wife "has made my life a misery and has totally disrupted my business". There was a failure to reveal clearly or openly that there had been no direct contact whatever between the parties since July. Had this been made clear we cannot believe that any Order would have been made.
(ii)		The businesses. One sub-paragraph in the affirmation referred to share holdings in terms which were accurate in relation to the company. But no names were given either of the company or of the firm; and this statement was submerged in repeated references to "my business", "my company" and "my factory". In these circumstances we very much doubt whether the learned judge realised that matrimonial proceedings were being used as a cover for what was in reality a company court dispute, or that he was excluding from the company's premises a lady who was both a director and with her family, the controlling shareholder.

7. Thirdly in matrimonial proceedings relief by way of injunction may be sought to protect two different types of financial claim. The first is a claim for some or more of the types of financial relief available on divorce such as was made by the husband in his petition, see eg. S.4-6 Matrimonial Proceedings and Property Ordinance (Cap. 192). This is normally for a Mareva type of order, and is justified only when there is clear evidence of a threatened removal or dissipation of assets; see S.17 of that Ordinance and Chen v. Chen Civil Appeal No. 25 of 1981. The second is a proprietary type of claim, where one party is asserting some beneficial interest in property held in the name of the other, often on the basis of some resulting trust. Such a claim may well be determined at the same time as any financial claim in the petition, but it has to be separately formulated and advanced. We fail to see how relief by way of injunction in support of such claim can properly be granted unless and until such formulation occurs; or in a case of extreme urgency save upon an undertaking to formulate and issue the appropriate proceedings.

8. The sole evidence filed in support of the third part of the judge's order was:-

"8. The respondent is the registered owner or has an interest in a considerable number of properties and shares in companies. While I do not at this stage want to go into the whole history of how she acquired those interests, it suffices to say that at the very least they form part of the family assets about which it is anticipated there will be a dispute in due course."

9. We do not know how the matter was put before the learned judge on 8th January. It may be that it was sought to be justified by the financial relief claimed in the petition, overlooking the principles of such cases as Chen. No such attempt was made by Mr. Payne, the husband's present counsel, to support the order on this basis and we think rightly. Conversely it may have been acknowledged that the claim was wholly prospective, and from the use of the blanket phrase "family assets" proprietary in nature. But if this be right we do not understand how it could have been granted without the imposition of any term as to the formulation of such claim. Thereafter the husband declined all the wife's requests to formulate his claim, and he has taken the line that he will pursue the matter "as and when advised". The claim was in fact first formulated before us by the husband in answer to leading questions during his re-examination, and in terms of the greatest generality. We can only regret this reversal of what we regard as proper procedures.

10. We have no appellate jurisdiction. The order of 8th January was made and has never in fact been appealed. It is therefore not for us to go behind it. But we are concerned with it aftermath. It is not possible properly to assess this without taking it into consideration the circumstances in which and the means by which the husband succeeded in obtaining this order.

11. Following the making of this order, the husband by his then solicitors, took the following steps: -

(i)		With a letter dated 11th January, a sealed copy of the judge's order, the whole order, was sent "by way of service" to Banque Nationale de Paris (B.N.P.) the mortgagees of a flat in Beverley Height held in the wife's name. This was one of the properties the husband was later to assert to have been bought out of the profits of his business and to be a family asset.
(ii)		With a letter dated 11th January, and inferentially in similar terms, a copy of the judge's order, again the whole order, was sent to the Kowloon Stock Exchange. The wife owns a seat on this Exchange. The husband later claimed this to be a family asset. He said in evidence that the copy order was so served to stop her selling this seat. He did not himself think that she was about to sell it. He said that this step was only taken because his then counsel thought it was necessary but that he did not ask her why. We can see no justification whatever for this step.
(iii)		The wife was a share holder in three other limited companies besides the company. These companies were Yoposeyo Limited: High Gold Co. Ltd.: and Three Roof Co. Ltd. By a letter dated 12th January four copies of the judge's order, again the whole order, were sent to the Registrar of Companies for filing apparently as charges against each such company. This was plainly wrong as the order in no way operated as a charge. Three copy orders were apparently rejected and returned by the Registrar. But the fourth was put on the file of Yoposeyo Limited where it remained open to public view until some date in June.

12. On 20th February, after three days of argument, His Honour Judge Caird made the following further orders namely:-

(i)		The injunction referred to in paragraph 1 of the order herein made on 8th January 1982 upon the ex parte application of the petitioner (hereinafter called "the Ex Parte Order") enjoining "the respondent by herself, her servants or agents or otherwise .... from in anywise attacking, molesting, threatening or howsoever disturbing or interfering with the petitioner" be discharged upon the mutual undertakings given by the petitioner and the respondent on like terms mutatis mutandis of the said ex parte order.
(ii)		The injunction referred to in paragraph 2 of the said ex parte order herein enjoining "the respondent by herself, her servants or agents or otherwise ..... from in anywise entering or creating any disturbance or disruption at the premises of or howsoever interfering with the business and operation of Reynold Industrial Company and Reynold Plastic Industry Limited" be discharged upon the Undertaking given by the respondent to appoint forthwith Mr. D. Agnew and Mr. C. Greaves, partners and chartered accountants of Messrs. Deloitte Haskins & Sells, certified public accountants, to act as joint receivers over the management and affairs of the said Reynold Plastic Industry Limited, and upon the Mutual Undertakings given by the petitioner and the respondent as directors of the said limited company to co-operate fully and to render all assistance to the said receivers whenever called upon to do so and FURTHER upon the Mutual Undertakings given by the petitioner and the respondent to account to the court if called upon to do so for any trading profits or losses attained or sustained respectively in the course of their businesses under their respective sole proprietorship.
(iii)		That the injunction referred to in paragraph 3 of the said ex parte order herein restraining "the respondent by herself, her servants or agents or otherwise from selling, transferring, interfering or howsoever dealing with any of the assets of the respondent and/or the petitioner and/or the joint assets of the respondent and of the petitioner" be discharged upon the Undertaking given by the respondent not to until further order dispose of any of the properties listed in Part I of the schedule attached hereto without first obtaining the leave of the Court and undertaking to comply with any conditions which may in that event be imposed on the respondent by the Court as to the application of the proceed of the sale thereof, not to mortgage any of the properties referred to in Part I of the said schedule beyond 50% of their market value, save and except those properties subject to pre-existing mortgages over 50% of their market value AND FURTHER upon the Undertaking given by the petitioner on like terms, mutatis mutandis, of the said Undertaking given by the respondent in relation to the property referred to in Part I of the said schedule. Part I of the said schedule listed five properties standing in the wife's name: Part II listed one property standing in the husband's name.

13. Following the making of this order the husband by his then solicitors:-

(i)		Sent a sealed copy of the Order of 20th February by way of service to B.N.P. Having considered the terms of the order B.N.P. pointed out that the property in question was already mortgaged to more than 50% of its value and therefore, the bank argued, not subject to any undertaking. B.N.P. asked the husband's then solicitors specifically if they agreed with this interpretation. The only answer was that B.N.P.'s letter had been "duly noted". A third party who has been served with a court order with a view to compelling it to co-operate in its enforcement on pain of contempt is entitled to receive clear directions see Z. Limited v. A-Z 1982 2 W.L.R. 288 per Lord Denning M.R. at page 297F. It is intolerable for a third party to be left in the air in this way.
(ii)		Sent a sealed copy of the order of 20th February, by way of service, to Kowloon Stock Exchange, adding that the wife's seat was "no longer an issue of the subject injunction".
(iii)		Declined to reveal to the wife's solicitors the names of any other persons or companies upon whom or to whom copies of either order had been sent or served. The wife therefore had no idea to whom else, in her view, she had been defamed. This refusal of information was plainly calculated to disturb the wife and we can see no justification for it.
(iv)		By letter dated 9th March sent sealed copies of both orders by way of service to Citibank. In November 1981, some months after the parting, the wife bought a flat at Victoria Centre with mortgage assistance from Citibank. This assistance took the from of a loan reducible by monthly instalments; and overdraft facilities intended to be used to effect such reduction. Citibank's reaction to the service of these orders was to freeze the overdraft facilities; but to maintain its demand for the monthly instalments and to threaten to sell if these were not paid. This freezing of overdraft facilities was a typical cautious banks' reaction but one which went well beyond the intent of the undertaking. This position was demonstrated to the husband in the wife's first and second affirmation on this application which exhibited the Citibank letters. His reaction in his affidavit in reply was that these matters "arose from her default in making monthly instalments and not from" his activities. At the hearing his counsel made no attempt to support this and readily offered to write an appropriate letter to Citibank. The husband's affirmation and his failure heretofore to take any such step are however uncomfortably clear pointers to his real attitude to his wife.

14. The question before us is whether in taking the steps outlined above the husband has been guilty of contempt of court. Before considering that we must deal with a preliminary objection taken by the husband namely that the Full Bench had no jurisdiction to deal with the wife's present complaint which was said to be misconceived.

Jurisdiction

15. This application is brought under O.52 (Cap. 4). This regulates applications for committal made in the High Court, O.52 r.1(1). O.52 r.1(2) provides that where a contempt is alleged to have been committed in connection with "proceedings in an inferior court", such an application must be made initially to the Full Bench for leave and finally to the Full Bench on motion and not to a single judge. The contempt here (if any) arose in connection with proceedings in the Victoria District Court. It is not alleged that the District Court is not an inferior court. Nor is it alleged that the Full Bench would not have jurisdiction, in many cases in parallel with the District Court judge, had the contempt in question arisen in connection with the District Court's normal civil jurisdiction. This is because in Xavier v. Xavier 1976 H.K.L.R. 964, the Hong Kong Court of Appeal followed and applied the reasoning of the English Court of Appeal in Jennison v. Baker 1972 2 Q.B. 52. What was there in issue was the jurisdiction of a county court judge. But the Court of Appeal thought it "beyond doubt" that the Divisional Court of the Queen's Bench Division (the Court specified in the English rule) had jurisdiction, per Edmund Davies L.J. at p. 69F, and Salmon L.J. p. 61/63. Salmon L.J. significantly gave examples of contempts where only the High Court (Divisional Court) would have jurisdiction.

16. The submission advanced by Mr. Ian Payne for the husband was confined to the matrimonial jurisdiction of the District Court. When a contempt is committed in connection with matrimonial proceedings, he argued, the only judge to whom application can be made directly is the District Court Judge himself. The High Court, whether in Full Bench or by a single judge, can exercise no immediate supervisory jurisdiction. If the applicant wishes to take the matter to the High Court he must first apply to the Registrar of the District Court to have the whole matter transferred to the High Court, and only if he succeeds there can he apply by summons to a single High Court Judge. This argued Mr. Payne was the combined effect of Order 2 rule 3 (Cap. 4) and of rules 90 and 91 of the Matrimonial Causes Rules (Cap. 179). He also at one time sought to pray in aid the English provisions assigning business between the Queen's Bench and Family Divisions e.g. Section 56(3) of the Judicatory Act 1925, as amended, and Schedule 1 of the Administration of Justice Act 1970. But he later recognised that they had no parallel in Hong Kong where one Full Bench deals with all cases.

17. For a number of reasons we are unable to accept this contention. To us O.52 is quite clear. Very much clearer and more specific provision that anything that we have seen would be required to cut down its operation in the manner claimed. The purpose of O.2 is to enable the rule making bodies of the specialist courts listed to choose freely which of the Supreme Court Rules to adopt. Its counterpart is rule 3(1) of the Matriminial Causes Rules, which shows that that body has adopted the rules of the Supreme Court as a whole. That O.52 is specifically included in this is shown by the opening words of rule 90(1): "notwithstanding anything in RSC O.52". This presumes and assumes the applicability generally of Order 52 to Matrimonial Causes. Rule 91(1) is purely permissive. It cannot be said to be in conflict, and still less over-ridingly in conflict with Order 52. The existence of a supervisory jurisdiction in the High Court is generally desirable and in some cases e.g. those identified by Salmon L.J. essential. The suggested route to the High Court via the Registrar of the District Court is bizarre, circuitous and quite unsatisfactory. It savours of Lewis Carroll.

Matrimonial Causes Rule 121

18. On contempt, the first matter to consider is the applicant's submission based upon this rule and upon Section 5 of the Publication of Information Ordinance (Cap. 287). The submission was that this rule contained a general prohibition against the publication of Orders made in chambers in matrimonial proceedings within the meaning of Section 5(2). By sending copies of the orders "by way of service" to the persons above referred to, the husband's former solicitors were "issuing" the copy document to "any person" without leave. It being admitted that no leave had in fact been obtained, service, the wife argued, was in every case a contempt.

19. We cannot accept this and prefer the contrary view put before us by Mr. Payne for the husband and by Mr. Chan whom we allowed to address us on behalf of the husband's former solicitors. We think they are right when they argued that this rule is directed primarily to the Registrar and his staff, and that "issue" means issue by them to any person other than "a party" who calls for a copy or extract or who tries to make a search. The Registrar cannot refuse to supply a sealed copy of an order made in chambers to a party or his solicitors. This is no doubt what happened here and explains how the former solicitors obtained their sealed copies. Once that happened this rule was exhausted, and any legal restriction upon the use a party makes or may make of copies so supplied must be found elsewhere. In this respect there is little difference between this rule and O.63 r.4 (see the notes in the White Book at page 1108). Both Section 5(2) of the Hong Kong Ordinance, and the Section 12(1)(e) of the English Administration of Justice Act 1960 envisage express prohibition. Neither rule constitutes a general prohibition. If it were otherwise Lord Denning M.R. would have been unable to speak as he did in Wallersteiner v. Moir 1974 1 W.L.R. 991 at p. 1003F. An injunction does not avail a litigant, acting in good faith, if he cannot give notice of it.

Contempt

20. It is therefore necessary to consider whether the law imposes any and if so what restriction upon a party's freedom to serve on third parties sealed copies of a chambers order which the Registrar cannot deny him under rule 121. Mr. Raymond Sears Q.C. for the wife submitted that a party cannot publish an order to the world or to use it for a "collateral ulterior purpose" in the sense that that phrase was used by Lord Diplock in Harman v. Secretary of States 1982 2 W.L.R. 338 at page 343. Mr. Payne agreed that it would be a misuse of the Court's process and therefore a contempt for a person to use an order such as this, not bona fide to protect his interest but for some collateral purpose e.g. to harrass, molest or bully a wife. Whilst not dissenting from this broad approach it seems to us necessary and desirable to seek greater definition of what is legitimate and what is collateral: of what is proper and what is an abuse: and of the standard and principles by which these questions are to be judged. Guidance from authority here is perhaps more general and indirect than direct.

21. Assistance can we think be derived from the following statements of general principle namely:-

(i)		"Any act done or writing published, calculated to obstruct or interfere with the due course of justice or the lawful process of the courts is a contempt of court" per Lord Russell of Killowen C.J. in Reg v. Gray 1900 2 Q.B. 36 at page 40.
(ii)		"The jurisdiction (contempt) must surely be limited to wilful and malicious publications going beyond the necessity. .... When a court has to decide either that there shall be no justice available for people suffering under wrong, or that malicious publication should be prevented, I believe that the second is the right alternative". Per Earl Loreburn in Scott v. Scott 1913 A.C. 417 at pages 448-9.
(iii)		"One of the safeguard of legal procedure in this country, is the prescriptive authority of courts of record to visit with summary punishment persons who purposely obstruct or divert the cause of justice": per Lord Merrivale P. in Apted v. Apted 1930 P.246 at p. 263.
(iv)		"The jurisdiction sought to be invoked in this case is the jurisdiction which it is very necessary that the court should possess both for the vindication of its own authority and for the protection of the litigants who may come before it. On the other hand it is a jurisdiction the exercise of which may deprive the subject of his liberty without the intervention of a jury - it is therefore a jurisdiction to be used with circumspection and only to be invoked for grave and serious reasons and on real and substantial grounds. It certainly ought not to be invoked merely for the purpose of getting costs which I do not suggest is the purpose in this case. It ought not to be invoked merely for the purpose of satisfying a feeling of vengeance against the person who may have done something which the opposite side of the litigation does not like": per Goddard J. (as he then was) in Gaskell v. Chambers Ltd. 1936 2 K.B. 595 at p. 603.
(v)		The Court should consider whether powers are available to it other than to punish for contempt.
(vi)		It is no defence, though it may be a factor in mitigation of penalty, that, as in the present case, the acts or omissions complained of resulted from advice given by counsel or solicitors: Re Mileage Conference Group 1966 1 W.L.R. 1137 at p. 1161-2.

22. In relation to orders such as those in question in this matter, inferential guidance can be obtained from the Mareva injunction cases, especially the most recent case in the Court of Appeal in England Z. Limited v. A-Z 1982 (supra) where that court considered at length such injunctions in the particular context of service on banks. This is not a Mareva case, but the principles governing the grant of injunctions in support of proprietary claims are if anything we think stricter and not more lax than those governing Mareva cases generally.

23. The principles and guidance, relevant to present purposes, which emerge from this decision we think are:-

(i)		The injunction operates in rem upon assets of the respondent in the hand of the third party.
(ii)		Applicants for such orders are under a duty in their supporting evidence to say "on what third parties it is intended - and reasonably necessary - to serve a copy of the injunction": per Kerr L.J. p. 310B.
(iii)		The order should contain, and should be drafted by the applicant to contain, an undertaking to indemnify any third party intended to be served against any costs, expenses or fees reasonably incurred by it in seeking to comply with the order; p. 307H approving Searose Ltd. v. Seatrain U.K. Ltd. 1981 1 W.L.R. 894.
(iv)		If a third party who has been served with such an order knowingly assists in the disposal of the assets therein referred to he will be guilty of a contempt of court. "For it is an act calculated to obstruct the course of justice" citing Lord Russell in Reg v. Gray 1900 2 Q.B. 36: per Lord Denning M.R. at p. 296 A-B.
(v)		The Court's jurisdiction to grant such orders must not be abused, p. 306E. "The great value of this jurisdiction must not be debased by allowing it to become something which is invoked simply to obtain security for a judgment in advance, and still less as a means of pressurizing defendants into settlements (our emphasis)" per Kerr L.J. at p. 307 E-F. These words echo what Robert Goff J. said in Searose Ltd. v. Seatrain U.K. Ltd. 1981 (supra): "A weapon which has forged to prevent abuse may become an instrument of oppression" at page 897B.

24. We also deduce from Z. Limited v. A-Z 1982 (supra) that:-

(i)		It cannot be reasonably necessary to serve an injunction upon any third party who has no asset in his hands.
(ii)		The breath of intended service should be known to and controlled by the court by the undertakings in its order.
(iii)		The procedure is open to abuse. The cause of justice can equally be obstructed by the pressurizing or harassment of defendants. The court should in this respect not treat those who obtain and serve orders differently or more favourably than those who are restrained by or served with them.

25. It remains to determine the point at which bona fide pursuit of a claim ends and abuse begins. Mr. Payne for the husband suggested for example that bona fide belief in a claim was decisive and that nothing done in such belief could amount to abuse or contempt. We cannot accept this. What is on trial before us is not the husband's claim but the methods used to advance it: not his substantive claim but his procedural conduct. Having regard particularly to the time when and the manner in which this husband's claim was first formulated, we cannot and do not even begin to comment upon it. Although no doubt the temptation is the greater in the case of a thin claim, there can we think be an abuse of the court's procedure by a party who bona fide believes that he has some claim. Only in the extreme case of no bona fide belief in any claim would this factor in our view be decisive.

26. Assuming such belief, the ultimate question for the court must be does the conduct complained of amount to deliberate misuse by the alleged contemnor of procedures designed to further the cause of justice. The court must not prevent or inhibit vigorous prosecution of claims or proper use of the advantages of the rules. Litigation it was once said is not a "vicarage tea party". But bullying and harassment are a different matter, particularly when they take place not in or through the Court but by conduct and publicity outside the Court. Whilst not being over ready to find abuse, the Court we think must be prepared to condemn it when it occurs. The intention of the party whose conduct is in question may on occasions be decisive, as Lord Loreburn suggested. Sometimes his conduct may so obviously go beyond what could reasonably have been thought to be proper and be so obviously calculated to pressurize threaten, hurt or harass the other party that the abuse will be clear. Where however the conduct is more equivocal the court must look for the presence or absence of a positive intent such as we have just described.

27. No one other than the parties themselves had any possible legitimate interest in Part I and II of the learned judge's orders. Whatever may be said about Part III, it was not "reasonably necessary" to serve those parts upon B.N.P., The Kowloon Stock Exchange, Citibank or the Registrar of Companies. Mr. Payne in argument did not attempt to advance one. Equally it must have been transparently obvious to the husband and his advisers that the publication of those parts of the orders to such parties would seriously hurt and embarrass the wife. She would be made to appear to them as a woman who had behaved so badly that the Court had seen fit to dub her as a molester and to restrain her. In the circumstances described this was a particularly unfair suggestion. To those who were aware of her connection with the company and the firm, the fact that the court had decided that she must not even enter their premises was calculated to be particularly damaging to her personal and to her commercial reputation. It must be doubted how many recipients of these orders realised that the wife had been so condemned unheard.

28. The story however does not end there. In our judgment the husband's conduct since last December is consistent and consistent only with a deliberate planned attempt to pressurize the wife into a speedy settlement to save herself further public embarrassment. The documentary raid: the report to the I.C.A.C.: the lack of frankness in the affirmation of 30th December: the non service of the summons on the wife: the publicity given to the first and second parts of the order: the service on Kowloon Stock Exchange at all: the refusal to tell the wife whom else had been served: the behaviour towards B.N.P., and more recently and obviously to Citibank, all point to this conclusion. Having seen and heard the husband in the witness box we can give no more credence to his denials of any intent to hurt his wife then to his denials of any attempt to cause I.C.A.C. to investigate her conduct. In our judgment this conduct on behalf of the husband was an abuse of the "lawful process of the court" in relation to which it has no alternative powers and which it must treat as a contempt. By reason of his said conduct since 20th February we also find that he has molested and interfered with his wife contrary to his undertaking contained in the order of that date, which also constitutes contempt.

29. At the conclusion of his argument, counsel for the husband offered an undertaking on behalf of his client to take all such steps as were necessary and possible to eradicate the effects of the conduct complain of. Such necessary steps in our judgment include:

(i)		Informing the wife of the names and addresses of any other persons to whom copies of either orders were sent by way of service or otherwise.
(ii)		The addressing of letters to Citibank and B.N.P. which either explain the limitations in the undertaking of 20th February or release the properties with which those two organizations are concerned from such undertaking.
(iii)		The proper formulation without further delay in the Victoria District Court of the husband's proprietary claim.

Having regard to the fact that the husband has throughout acted upon the advice of solicitors and perhaps counsel; and to his apologies tendered to this court; and upon an undertaking that the steps above set out will be taken; we do not think it is appropriate or necessary to make an order for committal and feel rather that the justice of the case will be met by an order that the husband pay the wife's costs of these proceedings. on solicitors and own client basis.

(D.S. Hunter)
Judge of the High Court

(M. Kempster)
Judge of the High Court

Representation:

Mr. Raymond Sears, Q.C., and Mr. Patrick Woo (Edmund W.H. Chow & Co.) for Applicant.

Mr. Ian Payne (Kwong & Lam) for Respondent.

Mr. Edward Chan (Iu, Lai & Li) watching brief for Iu, Lai & Li, Solicitors.