Kao, Lee & Yip (A Firm) v. Donald Koo Hoi Yan and Others

cacv 32/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 32 of 2006

(on appeal from HCA NO. 8847 of 1993)

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BETWEEN

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Before: Hon Le Pichon, Cheung JJA and Sakhrani J in Court

Date of Hearing: 26 April 2007

Date of Judgment: 26 April 2007

Date of Handing Down Reasons for Judgment: 8 May 2007

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REASONS FOR JUDGMENT

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Hon Le Pichon JA:

1.This was an application for leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance.  At the conclusion of the hearing, leave was refused.  The reasons are set out below.

2.The background facts are set out in paragraphs 2 to 22 of the judgment of this court dated 8 November 2006 to which reference should be made.  The judge below had dismissed the plaintiffs’ motion that the first defendant be committed for contempt of court for failure to comply with three court orders.  The appeal was allowed.  The central issue before this court on the appeal was the mental element required for civil contempt.

3.Although in the notice of motion for leave a number of questions of great general or public importance are said to arise, they fall under the following main groups.

4.The first group of questions said to be of great general or public importance is whether this court was correct in holding that in civil contempt, liability is strict in the sense that an intention to interfere with or impede the administration of justice is not required.  As explained in paragraphs 25 to 29 of the judgment of this court, that common law principle has been approved by the House of Lords and applied time and again by the courts for almost a century.  In my view, the fact that there is an English Court of Appeal decision (viz. Irtelli v Squatriti [1992] QB 83) which, on its very special facts, departed from the traditional approach, holding that a deliberate intention to breach the order must be shown, does not raise any question of great general or public importance.

5.The second group concerns the question whether reliance on legal advice in good faith is a defence to committal for civil contempt and whether in approaching the question of civil contempt, a distinction should be made between a restraining and a mandatory order.  Again, it is well settled by a long line of authorities that reliance on legal advice in good faith is not a defence.  Further, the suggestion that the application of the well-established principle was limited to breaches of a restraining order rather than a mandatory order is novel and unsupported by authority.  A question of great general public importance does not arise simply because a party desires well established principles to be revisited.

6.The defendant also sought to raise a question on the burden of proof.  But the question said to arise has to be viewed in the context that the party in whose favour an order is made is entitled to have it enforced and that liability for civil contempt is strict.  That being so, it is open to the party said to be in contempt to raise as a defence that the breach was “casual” or “accidental and unintentional” by adducing the requisite evidence.  I do not therefore consider that any burden of proof point arises.

7.Finally, Mr Pow SC who appeared for the defendant submitted that the court should exercise its general discretion on the “or otherwise” limb of section 22(1)(b) in his client’s favour.  The grounds advanced were based on ‘fresh evidence’ including the defendant’s 19th affirmation inasmuch as that affirmation was not relied on at the Court of Appeal hearing in October 2006 and did not form part of the appeal bundles although it predated that hearing.

8.There is no application before us for leave to adduce fresh evidence for the purposes of the appeal to the Court of Final Appeal.  Be that as it may, if the new grounds are based on fresh evidence, it stands to reason that that evidence has to be adduced not only for the purposes of the appeal to the Court of Final Appeal but also for the leave application itself and the conditions in Ladd v Marshall apply.  See Aqua-Leisure Industries Inc v Aqua Splash Ltd (No. 2) [2003] 2 HKLRD 422.  Although there is no formal application to adduce the fresh evidence, if this court is to consider those new grounds, it can only do so if the fresh evidence is allowed to be adduced.  Had an application for leave to do so been made, I have no doubt that, at the very least, it would have failed to satisfy the first of the Ladd v Marshall conditions.  In those circumstances, I do not consider that there is any basis for this court to consider the new grounds based on the fresh evidence.

Hon Cheung JA:

9.I agree.

Hon Sakhrani J:

10.I also agree.

Ms Audrey Eu SC & Mr Jin Pao, instructed by Messrs Kao, Lee & Yip, for the Plaintiff/Respondent

Mr Jason Pow SC & Mr Samuel Chan, instructed by Messrs Robert Wang Solicitors, for the 1^st Defendant/Applicant