Ng Yiu Ki v. Chan Yuk Fung

DCMP3254/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3254 OF 2009

BETWEEN 

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Coram:  H H Judge Chow in Court (Open to public)

Date of Hearing:  6 May 2010

Date of Judgment:  6 May 2010

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J U D G M E N T

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1.On 8 January 2010, I found that the Defendant had breached the injunction order made against her by Judge Leung on 13 July 2009.  She was in contempt of court by violating the said injunction order.  She made the admissions regarding matters referred to in the Plaintiff’s affirmations.  The matter was adjourned to today for this court to impose penalties on her due to such contempt, so that she could seek medical reports in the meantime for mitigation purposes.

2.Today the Defendant submitted the medical reports of Dr Mak Fu-kwok and Dr Josephine Wong.

3.Dr Mak’s report reveals that the Defendant was first seen at the Western Psychiatric Centre, Department of Psychiatry, Queen Mary Hospital since November 1998.  Diagnosed with a depressive illness, she was noted to have a fixation towards a male doctor working in the Queen Mary Hospital.  This no doubt is the Plaintiff in this case, Dr Ng.  She sent letters or gifts or copies of academic papers to his office, stalked him, waited for him after work.

4.She was treated with anti-depressant till she stopped taking them in October 2000.  Psychological treatment was terminated in March 2001 due to her resistance to doctors’ advice.  She defaulted follow-up since October 2007.  Then she was seen by Dr Mak since August 2009.  She was depressed in facing an injunction order made against her prohibiting her from contacting or stalking the Plaintiff.  She was diagnosed at that time with an adjustment disorder with depressed mood.  She was treated with an anti-depressant with an adjunctive sedating medication to help her to sleep.  However, by December 2009, she again took gift to the doctor’s office in violation of the injunction order.  At that time, she felt rejected by her family members who told her to move out of the family home and she had to adjust to independent living.  She had too much time on hand after moving out to live in a rented room close to her working place.  She could not help thinking of the doctor.  An adjunctive psychotropic medication Risperdal 1 milligram nocte was added to her regimen but she did not try the new medication.

5.On 19 March 2010, she was seen by Dr Mak.  She reported to have taken the medication as prescribed and she claimed that her mood had improved as the effect of the medications kicked in.  She is still living alone.  She realised that she should not do anything more to contact the Plaintiff.

6.In her report, Dr Josephine Wong said that she first saw the Defendant in Western Psychiatric Centre in November 1998.  She was referred there by Tsan Yuk Hospital because of her harassing behaviour towards the Plaintiff.  Then Dr Wong in her report described in detail about her behaviour towards Dr Ng and other matters relating to her daily living.  Then Dr Wong goes on to say that in November 2009, the Defendant’s family asked her to move out of the family where she had been living with her parents.  Her younger brothers felt that she had brought shame to the family because of this court case and the media interest it generated.  She moved out and rented a room.  Then she started bringing food to the Plaintiff again and made phone calls to his conference room in his department.  She started doing this again because she felt that she had been thrown out by her family and was upset.  She felt empty and unoccupied.  Her mood was low.

7.On 8 January 2010, she admitted that she had breached the injunction order.  She reported no attempts to contact or bring gifts to the Plaintiff since the end of November 2009.  She missed the Plaintiff but she realised that she must not contact him anymore.  She was medically examined on 13 April 2010 by Dr Wong.  Then she understood that the Plaintiff’s application to the court for injunction order reflects that he had no feelings for her.  She accepted that she had wasted a lot of time, energy and money on the Plaintiff.

8.She breached the injunction order because of rejection by her family in November 2009 and she had to move out to live by herself for the first time in her life.  Feelings of unhappiness, rejection, emptiness and lack of occupation led to resumption of the act of bringing food to the Plaintiff again.  She realised that she must not contact the Plaintiff again and there is no evidence that she has contacted Dr Ng since the end of November 2009 until now.  If she had done so, no doubt the Plaintiff’s counsel would have informed this court.  So, for a period of five months, she has not contacted the Plaintiff.  This is one of the mitigating factors I have to consider before passing penalty.

9.The Plaintiff’s counsel submitted the case of Citybase Property Management Limited v Kam Kyun Tak & Others, No. 2003 2 HKC.  In that case, the court sentenced the 2nd defendant to 6 weeks’ imprisonment.  The court said that there was no mitigating factor in that case.  The 2nd defendant operated a fast food outlet at residential premises.  The 2nd defendant created a nuisance for other residents in the same building.  At the same time, she was posing a potential danger to the public by the presence of LPG containers.  The continued entering and exiting of persons from the premises in question also posed security risks for the building.  This constitutes aggravating factors for the purpose of sentencing.

10.In our case, there are mitigating factors.  The Defendant admitted wrongdoing on her part.  She stopped contacting Dr Ng since November 2009.  Now, she is taking the new medications which prove to be effective.  The most important thing is that she realised that she had wasted time and money on the Plaintiff and this will not bring any fruit at all.  Such way of thinking will bring her to comply with the injunction order and it will ensure that she will not get in contact with the Plaintiff again.  There are no aggravating factors in this case.

11.Now, in my view, if a term of imprisonment is imposed,  most probably she would lose her job and her family.  The punishment will be too severe.  I think that the proper order in this case is one of imposing a fine.

12.I make the following orders: (1) The Defendant do pay a fine of $10,000 for her contempt of court within 30 days from today.  The payment is to be made into court; (2) the Defendant do pay to the Plaintiff the costs of this action on an indemnity basis with certificate for counsel.

(Discussion re costs)

13.The Defendant do pay to the Plaintiff the costs of this action on an indemnity basis with certificate for counsel.  Costs summarily assessed at $145,000 to be paid forthwith.

Mr Allen Lam, instructed by Messrs Ko & Chow, for the Plaintiff

Defendant, in person, present