Sino Wood Investment Ltd v. Wong Kam Yin

HCA 307/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 307 OF 2002

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BETWEEN

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Before: Deputy High Court Judge Saunders in Court

Date of Hearing: 20 January 2006

Date of Decision: 20 January 2006

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D E C I S I O N

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1.In these proceedings I have found Ms Wong guilty of contempt.  A prohibition order had been made, prohibiting her from leaving Hong Kong.  I found that she knew that the order had been made preventing her from leaving Hong Kong.  I found that the penal notice on the order had been adequately drawn to her attention by the process server. 

2.Ms Wong chose not to receive the order or to read its terms.  Instead, having been informed of the order and its terms she proceeded, following a meal, to the Macau ferry terminal, and, in contumelious disregard of the order, attempted to leave Hong Kong.  Upon being informed of the order by Immigration Officers, she then, falsely claiming ignorance of it, chose not to leave Hong Kong.

3.She now comes before me for determination of penalty.

4.Mr Chain first points out that this matter has been long delayed.  The act of contempt occurred on 26 May 2003.  Any delay is entirely of Ms Wong’s own making.  I accept that she has acted on legal advice, but it was ultimately her own decision to resist the proceedings through trial.  It was her own decision to appeal the findings against her, the consequence of which was that the matter was further delayed while it went to the Court of Final Appeal.  She must accept the consequences of her own decisions.  In my view the delay does not constitute mitigation.

5.Before me today, Ms Wong relies upon an affidavit sworn by her on 5 May 2004, prior to the hearing of the contempt proceedings.  Apart from other matters, that affidavit sets out the circumstances of a deterioration in her physical and mental health.  Exhibited to her affidavit is a psychological report from Professor Peter W H Lee, a consultant clinical psychologist at the University of Hong Kong.

6.Mr Chain referred by way of mitigation, to Ms Wong’s psychiatric condition, a condition that existed at the time she committed the contempt.  I accept that Ms Wong has a medical condition.  However I regard the severity of that medical condition in the light of the fact that at the time she committed the contempt she was on her way to Macau to play golf.  Her medical condition is not such that it prevents her from enjoying a game of golf.

7.Mr Chain submitted that Ms Wong’s act in attempting to leave Hong Kong was an unpremeditated act, and that the unpremeditated nature of the act was a mitigating factor.

8.I reject the proposition that the contempt was unpremeditated.  Ms Wong has been found to have been fully aware of the terms of the order.  She knew that she was not permitted to leave Hong Kong.  After being informed of the terms of the order she first took a meal, and then went to the Macau ferry terminal where she attempted to leave Hong Kong.  The evidence established that the order was served on her at about 4:32 p.m..  She presented herself at immigration at the Macau ferry terminal at 5:33 p.m., an hour later.

9.While I accept that her contempt may have been impulsive and foolhardy, it cannot be described as unpremeditated.  It was a deliberate decision made plainly after considered thought over a period of an hour.  Being aware of the terms of the order she had more than sufficient time to consider her position and obey the order.

10.Mr Chain then sought to advance to the court an apology for the contempt.  I had been surprised that Mr Chain had wished to proceed with mitigation in the absence of any formal apology from Ms Wong.  Having been found in contempt, it is fundamental to any question of penalty whether or not the contemnor has purged the contempt.  Traditionally, a person found to be in contempt would not be heard by the court, other than in an application to purge the contempt: see Arlidge Eady & Smith on Contempt 3^rd Ed §12-66.  The usual way in which this is done is the tendering of an appropriate and comprehensive apology to the court.  By apologising for the contemptuous conduct the contempt is purged.

11.It is right that it is common in the criminal courts for counsel to tender to the courts, and to victims of offences, an apology on behalf of a prisoner.  Such apologies are accepted on a regular basis.  But in my view contempt falls into a different category from ordinary crime.  For a person to properly purge their contempt by an apology, the apology ought to be personally made, in order that its precise terms, flowing from the contemnor, may be seen and accepted as being genuine.  Whether it is made by affidavit or by viva voce evidence will be a matter for the contemnor and his advisors.  I indicated to Mr Chain that a formal apology ought to be tendered, if there was to be an apology, and he sought and was granted a short adjournment.

12.Following the adjournment a brief affidavit was filed by Ms Wong in which she expressed her regret and apologised for her conduct.  In criminal cases a plea of guilty at an early opportunity is accepted by the court as a sign of remorse.  It entitles the person who pleads guilty to a discount on the sentence imposed, whether that be imprisonment or a fine.  This is an apology which comes at the last possible opportunity and with little sign of genuine remorse.  I am obliged to accept the apology, but in doing so I note its lateness and its brief and formulaic structure.  Whether it is sincere remains to be determined, and may well be demonstrated by the way in which Ms Wong conducts herself for the remainder of the litigation between the parties.

13.Mr Chain is right when he says that Ms Wong’s attempt to breach the prohibition order was not a contempt that related to the administration of justice, in the sense that it was not the disregard of an order that was designed to be to the immediate benefit of the plaintiff in the proceedings, such as an order in the nature of discovery or the like.  While that is right, in sentencing for contempt there is a signal importance in demonstrating to litigants that orders of the Court are to be obeyed.  An order of the court, when made, is to be obeyed, whether it is to the immediate benefit of another party in the proceedings or not.  There can be no exceptions.

14.Mr Chain has said nothing at all as to Ms Wong’s means to meet a fine or costs.  The litigation concerns a substantial amount of money and I draw the inference from the whole of the circumstances that Ms Wong has substantial means and is well able to meet both a fine and costs.

15.I have weighed up all of these matters.  Ms Wong must pay a fine in the sum of $20,000, to be paid within 21 days of today.  In addition she must pay the plaintiff’s costs of and incidental to the contempt proceedings, those costs to be taxed on an indemnity basis and to be payable forthwith.

16.Mr Chain submitted that Ms Wong’s actions were not intended so much as a contempt of court, but were a reflection on the relationship between herself and the plaintiff.  That may be so.  But the fact that there is bad feeling between parties to litigation does not in any way excuse or justify the disregard of an order of the Court.  There is a long way yet to go in this litigation.  Ms Wong must realise that the subject matter of the litigation is extremely serious, and that the Court will not be trifled with when making orders in relation to that litigation.  Perhaps the next time she is on the golf course she will reflect upon the matter and realise how closely she came to going to prison.  That reflection may, I hope, encourage her to deal more sensibly with the litigation in which she is involved.

Mr Peter Ng, instructed by Messrs Allen & Overy, for the Plaintiff

Mr Benjamin Chain, instructed by Messrs Lau Lin & Co., for the Defendant