Chopard Et Cie S.A. v. Ace King Watch Ltd and Another

HCA007413/1983

Action No. 7413 of 1983

IN THE HIGH COURT OF JUSTICE

BETWEEN

Coram: Hon. Mantell J.

Date of Hearing : 6th April, 1984.

Date of Delivery of Judgment : 6th April, 1984.

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JUDGMENT

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1. The court has been moved by Chopard to commit the respondent for contempt of court. Chopard are well-known manufacturers of expensive watches. They are a Swiss company. The respondent is a trader in Hong Kong and he has had access to watches which on superficial examination resemble Chopard's products. He has been buying them from a source in Taiwan and selling them in Hong Kong or to customers overseas. Through their solicitors in Hong Kong Chopard discovered what was happening in the early summer of last year. They discovered as a result of an Anton Piller order against an entirely different party that the respondent was dealing in these watches. They took proceedings and an order was obtained before Mr. Justice Barnes. I cannot recall the date. It does not matter. When that order, also of the Anton Piller variety, was sought to be put into effect, it was resisted by the respondent or so the plaintiffs' or their solicitors' thought, and they took proceedings for contempt. The motion was returnable before me on 15th September last year. When the matter came on, I think with the concurrence of the respondent, although the order is not expressed to be by consent, undertakings were given by the respondent to the court and those certainly must have been with his agreement and various orders were made involving a company, of which he is a director, and himself. The undertakings which the respondent gave at that time were to this effect, and I paraphrase: that he should not further deal in these imitation Chopard watches in any way whatsoever; that the only watches of this kind that he dealt with in the past were some 10 in number; and it was part of the order which I made on that occasion that he should make full disclosure by way of affirmation not only of his sources but also of his purchasers. The second undertaking contained a very considerable lie and when the affirmation was filed some several days later which was to the same effect as to the number of watches involved, that also was an untruthful affirmation. This last was a very serious matter for which prosecution would lie. But the respondent does not come before me directly because the affirmation was untrue. It is not my direct concern save in so far as it is an aggravating feature of the case. The respondent has been brought before me for breach of his undertakings and for breach of the order which required him to make full disclosure by affidavit.

2. It is not necessary for me to rehearse all the facts. It. is sufficient, I believe, if I summarize them and as I rely on my memory I shall be corrected, I hope, if I make mistakes.

3. The undertaking was untrue and the affirmation was untrue at the time it was made because in addition to the 10 watches, even at the date of the appearance before me, the respondent had dealt in total with 967 watches which in itself makes the contempt a serious one. And. he was, at the very time that the matter was proceeding before me and was giving his untrue undertaking, dealing with a further 800 watches of this description. The documents make it plain that the order had been placed with him some time towards the end of August and he eventually, I think, concluded the bargain at the beginning of October, if memory serves me on the 4th. There could hardly be a more flagrant breach of an order of this kind and I am bound to view it very seriously. It cannot be overlooked. I have thought long and hard as to whether or not it is my duty in the circumstances to mark this contempt by an order of committal to prison. But on what I consider to be very good advice, Mr. Lin has had the sense to go into the witness box and, having affirmed, to make what I must accept at this stage to be a full disclosure of the position and to apologize and he has not attempted to brazen out, or to justify or excuse that which he did, except unwisely at the end when he sought to persuade me that he had not fully understood the nature of the proceedings in last September. I am prepared to overlook that. If he had not done that which he did on advice, it is almost certain that I would now be sending him to prison but I feel that a monetary penalty,will suffice. There will be a fine of HK$20,000. I shall allow 21 days for the payment of that fine and if it is not paid within 21 days, then there will be a term of imprisonment in default of 4 weeks. There will be an order that the respondent bear the plaintiffs' costs on an indemnity basis as defined and to be given effect to in the same way as by Sir Robert Megarry in the E.M.I. case.⁽¹⁾

Representation:

Anthony Rogers instructed by Baker & McKenzie for Plaintiff.

Miss Alice Mok instructed by Philip K.H. Wong for 2nd Defendant.

(1) E.M.I. Records Ltd. v. Ian Cameron Wallace Ltd & another [1982] 2 All E.R. 980