Tang Ping Kwan and Another v. Excel Sky Management Ltd.

HCA007281/2000

HCA 7281/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7281 OF 2000

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Coram: Deputy High Court Judge To in Court

Date of Hearing: 7 December 2000

Date of Decision: 7 December 2000

Date of handing down Reasons for Decision: 21 December 2000

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D E C I S I O N

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Introduction:

1. The present case is one of a number of similar cases brought by villagers of Pak Tin Village in Shatin against the Defendant in which the villagers complained of serious acts of harassment and intimidation against them by the Defendant, its servants or agents. The village is situated within Lot No 698RP, D.D. 181 (hereinafter called the "Lot"). The 1st and 2nd Plaintiffs are occupiers of a plot of land in the village in which they claim possessory title. The Defendant is the manager of the Lot, employed by the agent of the legal owners to manage the entire Lot and to negotiate with the villagers for the surrender of the plots of land they occupy or for payment of rent.

2. On 30 May 2000, the Defendant demanded each family in the village, including the Plaintiffs, to pay a monthly rent of $30,000. On 4 June 2000, the Defendant offered to pay each family a compensation of $30,000 for surrendering their plots. On 6 June 2000, the Defendant started erecting fences in the Lot, allegedly to prevent arbitrary expansion of the plots occupied by the villagers. Then on 13 June 2000, the Defendant increased their demand for rent to $60,000 per month. The compensation negotiations broke down. The villagers complained of intimidation, noise and nuisance created by the Defendant, while the Defendant accused the villagers of being hostile and obstructive and making unrealistic demand for compensation.

3. The Plaintiffs alleged that on two occasions on 18 and 25 June 2000 the Defendant placed buckets of rotten pork in the houses which had been vacated thereby fouling the air of the village and that on 10 July 2000 the Defendant de-stablised the slope above their house. On 19 July 2000, the Plaintiffs obtained an interlocutory injunction from Pang J restraining the Defendant whether by itself or by its servants, agents or any of them or otherwise from, inter alia, interfering with the plaintiffs' quiet enjoyment of their house and garden whether by depositing noxious substances at or near the house and garden or by making noise, or in any other way causing a nuisance including any measure likely or calculated to cause a health hazard.

4. The plaintiffs now allege that in breach of the order of Pang J, the Defendant's agent poured rotten pork on the slope and on the path outside the Plaintiffs' house on 27 July 2000 and seek an Order of Committal against the Defendant and Mr Yeung Kwok Sang, one of its directors, for contempt of court. The defence is that the Defendant has taken proper steps to comply with the injunction order and suggests that the act on 27 July 2000, if it had ever been committed, was done by an employee of its sub-contractor because of his personal grudge against the Plaintiffs and not as agent, servant or employee of the Defendant. The issue is therefore, firstly, whether the act now complained of had been committed; secondly if it had, the identity of the wrongdoer; and thirdly, whether the wrongdoer committed the act complained of as agent or for and on behalf of the Defendant; and in addition, as against Mr Yeung, whether he was aware of the injunction and its terms and whether he has wilfully failed to take reasonable care to secure the Defendant's compliance with the order.

The relevancy of background circumstances:

5. Mr Harris for the Plaintiffs referred me to the first affirmation of the 2nd Plaintiff in support of their application for the injunction before Pang J and to the other affirmations filed in the other related cases. Mr Grossman SC, for the Defendant said that the Defendant does not dispute that there was an injunction order made against the Defendant and the terms of that injunction order. He submitted that the sanction sought related to one action by one person on one occasion and hence the allegations contained in the other affirmations relating to divers other matters should be disregarded.

6. I do not think I should restrict myself to the evidence on 27 July 2000 nor should I indulge myself in considering the evidence in relation to the other cases. A lot of issues in those other cases are in hot dispute, the determination of which is unnecessary for the present proceedings. This is also not the appropriate venue to adjudicate on those issues. However, the present incident cannot be considered in complete isolation of its background circumstances. For the present purpose, I consider the demand for rent, the previous incidents of rotten pork and the de-stabilisation of the slope are relevant as part of the background circumstances and also for determining credibility of the parties.

7. Mr Harris sought to place reliance on the fact that in none of the six other cases in which ex parte injunction orders have been obtained against the Defendant did the Defendant contest the continuation of the injunctions after the return date, nor did it submit any affirmation or affidavit evidence in reply to the very serious allegations made by the villagers. He submitted that this is a powerful indication that the Plaintiffs' allegations are true. I respectfully disagree. The injunctions were granted on the basis of balance of convenience and on the Plaintiffs' undertaking of damages. If the balance was in favour of the Plaintiffs and the undertaking was adequate, it was reasonable not to contest the continuation of the injunction and pointless to file affirmation or affidavit evidence in reply. I draw no adverse inference against the Defendant for not contesting.

8. Mr Harris emphasised that Mr Grossman SC declined his offer to cross examine the 2nd Plaintiff and Mr Law, the two deponents of the affirmations relied upon by the Plaintiffs. Mr Grossman SC took the view that it was unrealistic to cross examine in view of the time constraint in such a hearing and the numerous issues to be cross examined on. He submitted rightly that there is no onus on the Defendant to cross examine or to prove a defence or other possibilities. The Defendant has put in its affirmations in reply disputing the allegations and offering a possible explanation for what allegedly had happened. I do not think it could be right to assume from Mr Grossman SC's decline to cross examine that the Defendant is accepting what is said in the Plaintiffs' affirmations. The veracity of what is said in any of the affirmations has to be determined in the absence of any cross examination and in the light of the totality of evidence and the burden and standard of proof.

Standard of proof and admissibility of hearsay evidence:

9. Counsel for both parties had no dispute that the present proceedings are civil proceedings. As the proceedings are punitive in nature and involve the liberty of the subject, the standard of proof is that applicable to criminal proceedings: see Savings & Investment Bank Ltd v. Gasco Investments (Netherlands) BV and Others (No 2), [1988] 1 Ch 422. Hence the burden is on the Plaintiffs to prove the guilt of the Defendant and its director, Mr Yeung Kwok Sang, beyond reasonable doubt.

10. Mr Harris sought to rely on hearsay evidence of identity of the person who allegedly poured rotten pork on the slope on 27 July 2000. He submitted that as the present proceedings are civil proceedings, hearsay evidence is admissible under section 47 of the Evidence Ordinance. In Savings Bank v. Gasco BV (No 2), the English Court of Appeal held that as committal proceedings are civil proceedings brought to enforce an ancillary order pending trial hearsay evidence could be admitted under the Order of Supreme Court. At page 448, Russell LJ held:

"As to the judge's concern that hearsay was inappropriate form of evidence in committal proceedings where the liberty of the subject is involved, the counter balancing consideration is that such evidence is not infrequently the only form of evidence available Reliance upon hearsay evidence is not mandatory and the court can be trusted to ensure, so far as is humanly possible, that no injustice results from the admission of such evidence."

11. Mr Grossman SC submitted on the authority of R v. Shokoya, (1992) The Times 10 June 1992, that a finding of contempt in summary proceedings should not be based upon mere hearsay evidence. In Shokoya, the finding of contempt of court was quashed on the ground that it was based upon hearsay evidence given by a police officer that another person, who had not been called, had told the officer that he had informed the appellant of the new hearing date. In my view, Shokoya is readily distinguishable from the present case as the contempt proceedings in that case arose out of criminal proceedings.

12. The present committal proceedings are civil proceedings instituted under Order 52 of the Rules of High Court. On matters of evidence and procedure, section 47 of the Evidence Ordinance relating to evidence in civil proceedings and the Rules of High Court are clearly applicable. These proceedings are brought to enforce an order, ancillary to the main proceedings, seeking to preserve the status quo pending final determination, or to regulate the conduct of litigation, or to regulate the conduct of the parties pending trial, lest a party would suffer irreparable damage. Breach of such an order may create extreme urgencies, for example, the need to promptly restore the status quo, which if upset would cause irreparable damage to a party; the need to preserve evidence, which if destroyed would result in prejudice to a party; the need to preserve assets, which if dissipated would render any future judgment nugatory. As these are civil proceedings, such an order has to be enforced by the parties themselves, who are civilians with limited resources and means and power of investigation. This limitation militates strongly against indiscriminate exclusion of all hearsay evidence from all committal proceedings where time is of the essence, if compliance with the court's orders and sanctions to support such compliance are to be achieved. In the light of the above, I think justice would be better served by admitting hearsay evidence, if such evidence is relevant and is of probative value. As for the party against whom such hearsay evidence is admitted, his safeguard lies in the good sense of justice of the court in exercising its discretion to exclude the evidence if it is prejudicial to the interest of justice and ultimately in the very high standard of proof beyond reasonable doubt which the other party has to discharge.

13. Accordingly, I consider the hearsay evidence of identity contained in the 2nd Plaintiff's affirmation admissible. However, having made that ruling, I must add, for reasons as will become apparent in the later part of this decision, such evidence of identity is unnecessary for the Plaintiffs' case. If that evidence could serve any useful purpose, it was to make it possible for the Defendant to put forward an innocent explanation, in the hope of throwing a reasonable doubt on the Plaintiffs' case. This is all the more a reason for its admission than its exclusion.

THE FACT:

14. I do not think it necessary for me to make finding of fact on all of the Plaintiffs' allegations of high handed conduct and nuisance caused by the Defendant, except for the demand for rent, the two incidents of rotten pork on 18 and 25 June 2000, the de-stabilisation of the slope and the act now complained of.

The demand for rent:

15. I shall begin with the Defendant's demand on 30 May 2000 for rent of $30,000 per family which was arbitrarily increased within 2 weeks to $60,000. These allegations have been mentioned in the 2nd Plaintiff's affirmation and in their solicitor's letter to the Defendant dated 17 June 2000 exhibited in that affirmation. The Defendant did not respond to these allegations in its affirmations in reply. According to its own affirmation, negotiation for rent or surrender is part of the Defendant's scope of duty. If the Defendant had not made such demands, it would be most unusual not to respond in the face of such an allegation exhibiting a solicitor's letter. I find that the Defendant had made such demands. Though I do not have evidence of the rental value and the size of the plots involved, I do not think I would be wrong to say that a rent of $60,000 per month for a village house and a vegetation plot in Shatin is extortionate. Even if it were not, a 100% increase in the rent demanded from $30,000 to $60,000 within two weeks clearly illustrates its extortionate and arbitrary nature and the very high handed manner in which the Defendant dealt with the Plaintiffs and the villagers who refused to leave.

Previous incidents of rotten pork:

16. On 18 June 2000, the Defendant's or their sub-contractor's employees (hereinafter collectively referred to as the "Defendant's team") placed buckets of rotten pork in the various houses which had been vacated. On the following day, the rotten pork produced a disgusting smell in the village. The matter was reported to the Food and Environmental Hygiene Department and then the police. Through the intervention of the police, the Defendant's team removed the buckets.

17. On 25 June 2000, the Plaintiffs smelt rotten pork again. The police was called; but this time, the Defendant's team refused to remove the rotten pork and had a confrontation with the police. However, they disappeared before police reinforcement arrived. The rotten pork was then removed by the police.

18. In his affirmation Mr Yeung denied that there was such misconduct. He said that on 12 July 2000 the Defendant posted a notice on the Lot advising villagers that there had been unknown persons impersonating to be representatives of the Defendant company causing nuisance and invited the villagers to contact the Defendant and report on such impersonation. He said despite that the Defendant had not received any such complaint, the Plaintiffs and villagers repeatedly sought injunctions. He suggested that the Plaintiffs' allegations were false and the injunction applications were made to put pressure on the Defendant with a view to obtain higher offer for their land.

19. According to Mr Yeung's affirmation, the Defendant has at least a staff of ten on the Lot, though the works were assigned to a number of sub-contractors. The two incidents of rotten pork allegedly involved police intervention and even confrontation. With Cheung Yat Ping, a senior staff member in charge of the Lot and his staff of ten employees, it would not be difficult for the Defendant to conduct some inquiries and collect evidence to refute the Plaintiffs' allegations of rotten pork and police intervention, if such incidents had not occurred. However, Mr Yeung did not address to those matters in his affirmation, save a bald and general denial of any misconduct and suggestion of impersonation.

20. In the light of the Plaintiffs' specific allegation of calling for the police and police confrontation, the Defendant's simple blanket denial in the total absence of particulars is incredible. The Defendant knew that the act of contempt now complained of is the pouring rotten pork and not about de-stabilising the slope. Yet, it gave ample coverage in its affirmation about the slope but made no mention about the previous incidents of rotten pork. If the Defendant thought it unnecessary to deal with those previous similar allegations which resulted in the grant of the injunction, it only has itself to blame. I find that the complaints about these incidents of rotten pork were genuine.

21. Further, it is unthinkable that strangers wholly dis-interested in whether the villagers would surrender their plot would impersonate themselves as staff of the Defendant and commit acts of nuisance of such an obnoxious nature to pressure them to surrender their plots of land. Such acts must have been committed with the Defendant's authority or for and on behalf of the Defendant. The Defendant's suggestion of impersonation is a defiance of common sense.

22. The Defendant being the manager of the Lot, instead of preventing such misconduct and acts of nuisance but attempted to cover them up, must have permitted or authorized or even participated in those acts. Accordingly I find further that those previous acts of rotten pork had been committed with the Defendant's authority and therefore for and on the Defendant's behalf. As there was no question of impersonation it made no sense for the villagers to complain to the Defendant who was the one harassing them.

De-stabilisation of the slope:

23. On 10 July 2000, the Defendant's team sprayed water on the slope above the Plaintiffs' house. Two days later, the 2nd plaintiff, staff of the Civil Engineering Department and Lands Department together with the police went to inspect the slope. They found rocks and stones had been stacked up along the edge of the slope, thus putting additional weight on the slope. Along the edge of the slope and on the slope itself were dug many holes to trap water. The water channels had been dug to divert water onto the slope. The trees and vegetation on the slope had been cut and removed. The surface of the slope had been dug loose. The chunam surface of part of the slope platform had been damaged so as to allow water to penetrate it and the soil below. This might affect the plaintiffs' house which is immediately below that part of the slope.

24. What Mr Yeung said in his affirmation in reply is utterly unconvincing. He exhibited a letter dated 8 January 1999 from the Buildings Department requesting the owners to carry out maintenance and protective works for the slope as a reason for the Defendant's intervention on the slope six months later. He said certain works have been done for maintenance and protection, but gave no particulars of the works. He did not respond to the dangerous state of the slope mentioned by the 2nd Plaintiff in his affirmation and as illustrated by the photographs exhibited therein. Nor did he dispute that holes on the edge of the slope and the slope itself had been dug. He said nothing about whether these holes were dug by his staff or sub-contractor and the reasons for digging them, and what the digging had to do with maintenance and protection of the slope. He mentioned nothing about why rocks had been stacked along the edge of the slope. Those rocks would not have been there by themselves. He mentioned nothing about the digging of the water channels and the damage to the chunam surface. He exhibited a report dated 2 August 2000 by Fugro (Hong Kong) Limited Consulting Engineers as evidence that removal of the trees and vegetation does not adversely affect the overall slope stability and that there are no signs of potential slope instability that would cause immediate danger to the facilities at its toe. Nothing of what is said in that report and nothing of what is said by Mr Yeung in his affirmation dealt with the dangerous state of the slope as alleged by the 2nd Plaintiff. The dangerous state of the slope could not be disputed in view of the photographs exhibited in the 2nd Plaintiff's affirmation and their expert report from Wong & Cheng Consulting Engineers Ltd exhibited to Mr Law's second affirmation.

25. On the other hand, the Fugro report is very brief and was written in very guarded language as to suggest the very limited reliance one could place on the report. In view of the Plaintiffs' affirmations, the photographs and the Wong & Cheng report, I consider the Fugro report misleading. It is the typical example where what has not been disclosed renders what has been reported untrue or misleading in the circumstances. The conclusion in the report could imply the opposite, namely that the removal of the trees does affect overall stability, though not adversely, or does adverse affect stability in part but not the overall stability. The conclusion could also imply there were signs of potential instability but they would not cause immediate danger. Also, what is immediate depends much on what time scale the writer has in mind. This report is unhelpful save to confirm the 2nd Plaintiff's allegation that trees and vegetation have been removed. I give no weight to the Fugro report.

26. If what the Defendant did, whether as a result of that letter from the Buildings Department, was what the 2nd Plaintiff alleged in his affirmation, then it is proof beyond reasonable doubt that the Defendant de-stabilised and not maintained or protected the slope. In fact the Fugro report support the Plaintiffs' case that maintenance works are required; and I should add, as a result of what the Defendant did on the slope. All these showed a total absence of good faith or sincerity on the part of Mr Yeung in telling the truth. I give no weight to what he said in his affirmations. I accept the Plaintiffs' evidence that the Defendant had caused work to be done to de-stabilise the slope.

The act now complained of:

27. The circumstances on 27 July 2000, according to the Plaintiffs, are as follows. Mr Law saw a member of the Defendant's team walk past his own house towards the Plaintiffs'. He recognised that person to be among the Defendant's team who had previously poured noxious substances onto the village path. He immediately informed the 2nd Plaintiff. Being thus alerted, the 2nd Plaintiff placed that man under observation as he walked past the Plaintiffs' house. The 2nd Plaintiff also recognised that man as a member of the Defendant's team. He then saw that man pour rotten pork on the slope. He took a photograph of that man as he walked off the slope, though that man was hardly visible on the photograph. As the man left and walked past Mr Law's house, Mr Law again recognised him and took a photograph of his back.

28. In the meantime, the 2nd Plaintiff went to the slope and took photographs of the scene and the shoe-print of the man. He then went to the police station to make a report. When he returned, he found more rotten pork had been poured on the access path to his house.

29. On the following day, i.e. 28 July 2000, Mr Law saw the same man again walk towards the direction of the 2nd Plaintiff's house with Cheung Yat Ping, who is a senior staff member of the Defendant in charge of the Lot. The 2nd Plaintiff called for the police. The police duly arrived and checked the identity of the said man. He was then informed by the police officer that the man was called Tse Chung Kam. Mr Law and the 2nd Plaintiff referred to this man as an employee or a member of staff of the Defendant. Mr Grossman SC challenged the basis of this evidence and submitted that if in fact this man is Tse, he is not a member of staff of the Defendant but an employee of the Defendant's sub-contractor. Hence, I use the more encompassing phrase and describe him as "a member of the Defendant's team", i.e. an employee of the Defendant or of its sub-contractor. The pouring of rotten pork on this occasion is not challenged. On the basis of the 2nd Plaintiff's second affirmation and photographs exhibited therein, I find that the incident did occur as alleged.

Identity of the wrongdoer:

30. Mr Grossman SC challenged the evidence of identity of this man as Tse Chung Kam as being hearsay evidence, which in fact it is, as the police officer who checked his identity was not called. For reasons as given above, I rule such hearsay evidence of identity admissible. The 2nd Plaintiff and Mr Law had kept Tse under observation while the 2nd Plaintiff called for the police. They then obtained the name of Tse from the police officers. They did not know Tse prior to the Defendant's involvement on the Lot. They had no knowledge of his name and could not have made up one which happened to be the same as that of one of the employees of the Defendant's sub-contractor. I find the 2nd Plaintiff's evidence of Tse's identity credible and have no reason to exclude that evidence. I accept the 2nd Plaintiff's and Mr Law's evidence about the incidents on 27 and 28 July 2000.

31. Though I have admitted the hearsay evidence of identity of the person who poured rotten pork as Tse Chung Kam, in my view, that name is immaterial. By whatever name that man is called, he was the man whom Mr Law and the 2nd Plaintiff recognised as among the Defendant's team. Mr Law saw that man among the Defendant's team who had previously poured noxious substances onto the village path. Both the 2nd Plaintiff and Mr Law had been dealing with the Defendant's team since May 2000. That man was seen walking in the Lot managed by the Defendant on 27 and 28 July 2000 and previously when he poured noxious substance onto the path. He was seen talking to Cheung, an undisputed senior staff member of the Defendant in charge of the Lot. From the above, I draw as the only irresistible inference that that man, be him called Tse Chung Kam or otherwise, was associated with the Defendant, either as an employee of the Defendant or of his sub-contractor engaged in management of the Lot. That is why I consider the hearsay evidence as to that man's identity is not necessary for the Plaintiffs' case. Mr Grossman SC has been invited to cross examine both the 2nd Plaintiff and Mr Law. He chose not to. While he has no obligation to strengthen the Plaintiffs' case with his searching cross examination, but if he did not do so, he ran the risk that I may accept the Plaintiffs' evidence and draw the above inference, which in fact I do.

Whether the act committed for and on behalf of Defendant:

32. Mr Yeung offered an explanation that that man, assuming he is Tse Chung Kam, is an employee of the Defendant's sub-contractor and if he did commit the act complained of, he did so out of his personal grudge against the Plaintiffs or the villagers and not for and on behalf of the Defendant. This is a bald assertion unsupported by objective evidence. There is nothing to suggest what caused such a serious grudge as to provoke Tse to perform such an obnoxious task of obtaining such a large quantity of rotten pork, bringing it up the slope and pouring it, and again to bring more rotten pork to pour onto the path leading the Plaintiffs' house. On the contrary and on my finding, the Defendant or the Defendant's team was the offending party in respect of the previous incidents. If anybody has any grudge, it would be on the part of the villagers against Tse. It is unrealistic that an offending and harassing party should have any grudge against the party being harassed. Only the Defendant would benefit from such continued harassment. Having dismissed the possibility of personal grudge, I am left with the irresistible inference that in the light of the circumstances, the pouring of pork on 27 July 2000 was committed either on the Defendant's instruction or for and on behalf of the Defendant.

Whether Defendant had taken reasonable steps to comply with the injunction order:

33. Mr Yeung said he had taken steps to ensure compliance with the order of Pang J by the Defendant's own employees and by his sub-contractors. These steps, according to his own affirmation, were showing the injunction order to his staff and sub-contractors and issuing a notice to the sub-contractors on 27 July 2000, i.e. on the very date of the incident.

34. On the facts as I have found, there were two previous incidents of rotten pork involving police intervention and confrontation. In view of the Defendant's presence on the Lot through its senior staff member and ten other employees, there is no reason why the Defendant was unaware of the two incidents and who were the instigators behind. If these were the unauthorised acts of its sub-contractor, it could easily have been discovered, if not on the first occasion, at least on the second. The Defendant could have given a proper response in its affirmation. Yet the attitude of the Defendant was to shun its liability or to cover it up by a blanket denial. Having dismissed the possibility of personal grudge and in view of the insincere attitude of the Defendant, that the Defendant is the only party to benefit from such continued harassment, and my finding that the act complained of was committed either on the Defendant's instruction or for and on its behalf, I draw as the only irresistible inference that the steps taken by the Defendant to ensure compliance with the order was understood between the Defendant and its sub-contractor to be a token gesture which was not meant to be taken seriously and that the Defendant would turn a blind eye to, or would even welcome or impliedly authorize such continued harassment.

Defendant's liability for contempt:

35. Mr Yeung has demonstrated his lack of good faith in what he said about impersonation, framing up in respect of the two earlier incidents of rotten pork and about the maintenance and protective works carried out on the slope. I consider what he said in his affirmation is incredible and what he said about the steps taken to ensure compliance with the order were token gestures which were not meant to be taken seriously by the sub-contractor.

36. Having rejected what he said in his affirmation, I am satisfied beyond reasonable doubt that the allegations contained in the Plaintiffs' affirmations are true. I am satisfied that the person who poured the rotten pork on 27 July 2000, be him Tse or otherwise, was associated with the Defendant. The extortionate demand for rent, the previous two incidents of rotten pork, the de-stabilisation of the slope, all formed part of a persistent and systematic intimidation by the Defendant to evict the villagers. The attitude of the Defendant, as manager of the Lot is irresponsible and insincere. The Defendant's attempt to cover up the previous incidents suggests that it was the instigator of those incidents. From all these circumstances, I draw as the only irresistible inference that the person who poured the rotten pork on 27 July 2000 did so as part of that continuing systematic course of harassment and intimidation and was therefore performed as agent of and for and on behalf of the Defendant.

37. In my view, proof beyond reasonable doubt does not mean proof beyond any scintilla of doubt. I do not think Mr Yeung's bald assertion of personal grudge in the circumstances raises any reasonable doubt that Tse poured the rotten pork for and on behalf of the Defendant. As against the Defendant company, I find the Plaintiffs have discharged the burden of proof to the appropriate standard.

Director's liability for contempt:

38. Mr Grossman SC agreed to the following proposition of law as stated in Attorney General for Tuvalu v. Philatelic Distribution Corporation Ltd, [1990] 1 WLR 926, as regards the liability of a director whose company is guilty of contempt of court. Where a company had been restrained by order from doing certain acts, a director who was aware of its terms was under a duty to take reasonable care to secure the company's compliance with it; that if he wilfully failed to take adequate and continuing steps to ensure that those to whom the relevant matters had been delegated had not misunderstood or overlooked the obligations imposed, and the company breached the order, he would be liable to be punished for contempt of court, notwithstanding that he had not actively participated in the breach.

39. According to Mr Yeung's affirmation, he was the director responsible for the project in the Lot and the actual works have been assigned to a senior staff member Mr Cheung Yat Ping. This is the man who was seen talking to Tse in the village a day after the present incident. Mr Yeung was aware of the injunction order. He was the controlling mind of the Defendant in respect of the management of the Lot, the harassment and the act complained of on 27 July 2000. Given the adverse view I have formed of Mr Yeung's credibility and for the same reasons as I gave on Page 17 in respect of the Defendant, I find that despite he has informed his staff and sub-contractors of the injunction and issued a notice, those steps were understood as and intended to be token gestures only. Accordingly, I find that he has not taken reasonable care to secure the Defendant's compliance with the order of Pang J and that he has wilfully failed to take adequate and continuing steps to ensure that his sub-contractor and his staff had not misunderstood or overlooked the obligations. He is therefore guilty with the Defendant of contempt.

CONCLUSION:

40. I am satisfied that the Defendant and Mr Yeung as its director were in contempt of court. The act now complained of is not the worst of its kind. It caused discomfort but no risk to life and safety. The Plaintiffs' case against the registered owners of the Lot have not been seriously prejudiced as a result. Mr Harris also agreed that it is not a very serious act of contempt. As this is the first act of contempt, I consider a modest fine appropriate. Having satisfied myself as to the Defendant's and Mr Yeung's means, I fine the Defendant company $50,000 and Mr Yeung $20,000 and allow them 14 days to pay.

41. The costs of the last adjournment has been reserved. That adjournment was occasioned by the late filing of affirmations by the Plaintiffs. In view of the nature and seriousness of the allegation, it is reasonable for the Defendant to be granted an adjournment to consider the affirmation, though in the end no substantial reply has been filed. In determining liability for costs for that adjournment, I consider more weight should be given to causation than to a post mortem analysis of the necessity for adjournment, which may be difficult for counsel to assess at the spur of the moment. Of course, the eventual outcome also has a bearing on the liability of costs of the adjournment. Having balanced all these consideration, I consider the appropriate costs order for that adjournment is that the parties shall bear their own costs. Accordingly I order that the Defendant and Mr Yeung shall jointly and severally pay the Plaintiffs' costs, save and except the costs of the adjourned hearing on 30 September 2000 for which I make no order as to costs.

Representation:

Mr Paul Harris, instructed by Messrs Ho, Tse, Wai & Partners, for the 1st and 2nd Plaintiffs

Mr C S Grossman SC and Mr Simon H W Lam, instructed by Messrs Paul Cheng & Co, for the Defendant