Citybase Property Management Ltd. v. Kam Kyun Tak and Siu Wai Fong Angel

HCA009676A/2000

HCA9676/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.9676 OF 2000

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Coram: Hon Ma J in Court

Dates of Hearing: 20 June 2002 and 7 August 2002

Date of Judgment: 7 August 2002

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J U D G M E N T

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1.By a Notice of Motion dated 9 January 2002, the plaintiff applied for an order for committal against the 2nd defendant for contempt. The alleged contempt was the breach by the 2nd defendant of the terms of an interlocutory injunction granted by Chung J on 29 December 2000 which was made in the following terms : "the 2nd defendant, whether acting by herself or her servants or agents, be restrained until trial or further order, from using the unit of Flat C on 35th Floor and Roof of Block 13, Locwood Court, Kingswood Villas, Tin Shui Wai, Yuen Long, New Territories, Hong Kong for any Food Manufacturing/Processing or Fast Food or similar business activities."

2.On 20 March 2002, after a hearing in which affidavit and oral evidence were presented to the court, I found the contempt proved. Though served, the 2nd defendant did not attend the hearing. After making the finding, I adjourned so as to give the 2nd defendant the opportunity to make submissions before I arrived at a decision on the appropriate form of punishment. I shall say more about the 20 March 2000 hearing presently.

3.The Reasons for Decision on the contempt were handed down on 10 April 2002. On 3 June 2002, at the resumed hearing of the Notice of Motion, the 2nd defendant again did not appear. I further adjourned the matter to give the 2nd defendant a final opportunity to make submissions. I also ordered, in so far as may have been required, substituted service of the Reasons for Decision and notice of hearing.

4.On 19 June 2002 a Notice to Act was filed by the 2nd defendant's solicitors. At the hearing on 20 June 2002, Mr Steven Lau appeared for the 2nd defendant. Again I adjourned the hearing, this time to allow the plaintiff time to serve any affirmation evidence in response to the 2nd defendant's affirmation and the affirmation of one Lee Kin Chung, both of which had been served only the day before. Mr Wong Tai Cheong, the plaintiff's senior property manager, has made an affirmation in reply and the 2nd defendant has responded to this in her 2nd affirmation.

5.At the hearing today, Mr Lau accepts, on behalf of the 2nd defendant, that she was in contempt of court as I have found and asks for leniency. The 2nd defendant is aged 51 and is educated only up to primary 6 level. She and her husband are now unemployed. Her husband suffers from kidney trouble. Both are dependent on their son and daughter.

6.All that said though, the contempt in the present case was, as I have already found, a knowing and deliberate breach of Chung J's Order. The breach was, moreover, not an isolated one. It was a continuing series of breaches in flagrant disregard of the order. What is particularly aggravating about the breaches is that they not only created a nuisance for the other residents in that part of Locwood Court but also a potential danger. The operation of a fast food outlet in the relevant premises meant the presence, amongst other things, of LPG containers. The continued entering and exiting of persons from the premises posted security risks for the building as well.

7.The 2nd defendant accepts that the terms of the 29 December 2000 Order were explained to her by Chung J together with a warning as to the consequences of a breach of such order. As I said in the Reasons for Decision handed down on 10 April 2002, I have listened to the tape recording of the proceedings that day and can confirm that the 2nd defendant was told in no uncertain terms of the consequences of a breach. Despite this warning, the 2nd defendant, nevertheless, breached the order. Her only explanation was that she was told by her employer, one Lee Kwok Hung, who was said to be the person actually in charge of the fast food business at the premises, that she was not affected by the 29 December 2000 Order since she was merely his employee (although I should add she now says that she was at one stage a minor partner in the business as well). I am unable to accept this as a proper, or indeed any, excuse, even if plausible. No explanation has been provided to me as to why the 2nd defendant should have listened to the advice of Mr Lee as to the effect of an order directed against her personally in the face of the admission that the effect and consequences of the Order were explained to her by the learned judge. In my judgment, there is no mitigating factor here. The 2nd defendant is not a person of subnormal intelligence, unable to comprehend the significance of a warning from a judge.

8.Next, in her first affirmation, the 2nd defendant provides an explanation as to why she was not present at the hearing which took place before me on 20 March 2002. It is deposed in that affirmation that the premises where notification of the hearing and the relevant documents were served, were not occupied by her. It was said : "All I know about this place is that I have a mahjong friend living there." There is no challenge to the ruling I made that day on the basis of the 2nd defendant not having been present. However, the significance of the 2nd defendant's explanation for present purposes is that it is misleading. First, those premises in which the fast food business was carried on were in fact leased by the 2nd defendant's son. Secondly, the premises were leased by her son on behalf of her partners and her. Mr Lau quite frankly and rightly said that the 2nd defendant had not been telling the truth here, in the same way as the allegation in her first affirmation that she was a mere employee in the fast food business when in fact she was at one stage a partner, was also not the truth.

9.Committal proceedings are of course a remedy of last resort and imprisonment even more so. However, in cases of deliberate breaches of orders of the court, the public interest in the administration of justice must be taken into account. As Stone J said in Abu Dhabi National Tanker Co. v. Lam Ming Chi [1998] 4 HKC 320 at 336 :

"...There is always in matters of this nature a delicate balance to be maintained between the strong public interest in ensuring that the orders of the Hong Kong courts are not flouted and the evaluation of the individual circumstances of each case. ..."

10.Further, as more recently stated by the Court of Appeal in Excel Noble Development Ltd v. Wah Nam Group Ltd [2001] 4 HKC 148 at 162 :

" ... a sentence of imprisonment for a wilful failure to observe a court order can often be appropriate. ..."

11.Taking into account the matters deposed to in the affirmations before me, Mr Lau's submissions and the public interest to which I have referred, I am of the view that the appropriate punishment should be a term of six weeks' imprisonment. This term would have been longer but for the fact that the 2nd defendant's husband is suffering from kidney trouble. It is not deposed to by the 2nd defendant that her husband requires her to take care of him and indeed their son resides with them, but his illness is nonetheless a relevant factor in my view and Mr Lau has told the court that she is needed by her husband to take care of him.

12.I accept the breach is not a continuing one, but this is not so much due to the fact that the 2nd defendant has purged her contempt as, rather, the relevant premises have been vacated. I note that once the premises were vacated, another fast food business was run from premises also situate at the Kingswood Villas development. As I have already said, those premises were rented by the 2nd defendant's son on her and her partners' behalf.

[Discussion on costs]

Representation:

Mr George Lam, instructed by Messrs C.T. Chan & Co., for the Plaintiff

Mr Steven Lau, instructed by Messrs Raymond Chan, Kenneth Yuen & Co., for the 2nd Defendant