Secretary for Justice v. Yuen Oi Yee Lisa
Read the full judgment text of HCMP 2390/2008 on BabelCite. This High Court CFI judgment was delivered on 25 October 2010.
1. This is the Secretary for Justice’s application to commit the respondent for contempt of court on account of breaches of court orders and undertaking to court and for interference with the due and proper administration of justice. The application is made pursuant to Order 52, rule 2(2) of Rules of the High Court, Cap. 4.
Cited by 3 cases · Cites 10 cases
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HCMP2390/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 2390 OF 2008 ---------------------------
--------------------------- BETWEEN
--------------------------- Before : Hon Chu J in Court Date of Hearing : 22 March, 11, 12 and 14 October 2010 Date of Judgment : 25 October 2010 ------------------------ JUDGMENT ------------------------ 1.This is the Secretary for Justice’s application to commit the respondent for contempt of court on account of breaches of court orders and undertaking to court and for interference with the due and proper administration of justice. The application is made pursuant to Order 52, rule 2(2) of Rules of the High Court, Cap. 4. The conduct of the proceedings herein 2.Leave to commence these proceedings was granted by Fung J on 3 December 2008. The Originating Notice of Motion was issued on 9 December 2008. The direction hearing of the application took place on 13 January 2009. At the time, the respondent was being prosecuted for an offence of forgery in Magistracy case no. ESCC 5404/2008, the facts of which overlap with some of the allegations in this application. In light of this, Fung J ordered that the part of the committal application, which relates to the subject matter ESCC 5404/2008, shall not be dealt with in these proceedings unless otherwise directed by the court. Fung J also gave directions on the filing of evidence. 3.The respondent was convicted in ESCC5404/2008 and was sentenced to three months’ imprisonment. Her appeal against conviction under case no. HCMA 402 of 2009 was dismissed shortly before the trial of this application. 4.The application was set down for trial on 22 March 2010. Despite the directions given on 19 January 2009, the respondent had not filed any evidence. After Mr Wong for the Secretary for Justice had completed his opening submissions, the respondent indicated she wished to file evidence in opposition, explaining, inter alia, that she was unable to do so as a result of her incarceration in ESCC5404/2008. The trial was adjourned part-heard with directions (which were subsequently varied) for the respondent to file affirmation evidence in opposition. 5.In total, the respondent had filed seven affirmations for the purpose of the trial[1]. The four affirmations dated 29 April and 10, 11 and 28 June 2010 were filed with leave of the court. Two affirmations dated 17 and 20 August 2010 were filed without leave, and had been allowed to be referred to at the trial on de bene esse basis. Although some parts of these two affirmations are frivolous and irrelevant, having regard to the extent and nature of the reference made to them by both parties at the trial, I will admit them as evidence in the trial. The respondent filed yet another affirmation on 13 October 2010, the day before she was due to making her closing submission. As both sides had by then closed their case and the respondent was unable to provide any satisfactory reason for filing this affirmation, no leave was given for the affirmation to be filed or used for the trial. 6.The trial of the application was initially scheduled to resume on 24 and 25 August 2010. On 19 August 2010, the respondent made an application for legal aid. This was in spite of her confirmation at the commencement of the trial and after being reminded of her right to legal representation that she did not wish to be legally represented. As a result of the legal aid application and the statutory stay imposed by the Legal Aid Ordinance, Cap. 91, the trial was further adjourned and re-fixed to 11 and 12 October 2010. 7.In the interim period between 22 March 2010 and 11 October 2010, the respondent had made a number of interlocutory applications. No less than 26 summonses were issued. A great variety of matters were raised in these interlocutory applications, the bulk of which are incomprehensive, procedurally irregular, irrelevant and unmeritorious. They have also generated several proceedings in the Court of Appeal for leave to appeal. 8.For the purpose of this trial, it is only necessary to mention two batches of these applications. The first is the respondent’s repeated applications (initially by letters, later by summonses) to subpoena or summons or cross-examine a number of people, ranging from the government counsel who prepared the Statement applying for leave to commence this application to people who are unrelated to the issues in the trial, including judges. Except in respect of Miss Lee Yuk Yin Sandra, for whom leave to cross-examine was given, all the applications were refused with reasons given either orally or in writing. The second batch is applications to either adjourn the trial, vacate the trial dates or to strike out or dismiss the application. Many different reasons were cited for these applications, none of which however came up to scrutiny. In her latest summons filed to vacate the hearing dates on 8 October 2010, the last working day before the trial was due to resume, she even went to the extent of claiming that the government counsel had at the interlocutory hearing on 9 September 2010 alleged a love affair between her and a Judge[2] and this amounted to contempt of court such that the trial against her should not proceed. There can be no doubt that the respondent had been trying very means to put off the trial. 9.When the trial eventually resumed on 11 October 2010, the respondent produced a medical certificate issued on at 4:53 am on the same day by the Accident & Emergency Department of the Pamela Youde Nethersole Eastern Hospital. It certified that the respondent was suffering from headache and acute pharyngitis and was recommended for one-day sick leave. She also handed in a handwritten note, which stated that she had serious headache and therefore lost most of her memories, that she had “broken [her] voice” and could not speak, and that she had taken the drugs prescribed for her and felt sleep and dizzy. She requested for a court interpreter to be provided to her. Upon clarification, she indicated in writing that the interpreter was to “speak out” for her. As requested, a court interpreter was arranged to read aloud and into the record everything written by the respondent as representing what she had to say in the course of the trial. 10.Despite her claim of loss of memories and feeling sleepy and dizzy, the respondent did not indicate she was unable to continue with the trial. Neither did she request an adjournment on account of her health condition. As a matter of fact, apart from seemingly not able to speak aloud, the respondent did not show any other sign of being unwell or unfit to proceed with the trial. She was fully alert and had no problem understanding and following the proceedings, including cross-examining witness and answering Mr Wong’s questions in cross-examination. On the following day, the respondent appeared to have made a full recovery from her pharyngitis. Not only could she speak, she was also able to speak loudly, clearly and at length when being cross-examined by Mr Wong. Throughout the two days, the respondent had conducted her defence with vigour and aggression. 11.In her closing submission, the respondent asserted it was unfair to proceed with the trial when she was given one-day sick leave. There is, in the premises, no merit in the assertion. The allegations of contempt 12.I turn now to the allegations of contempt. In the Statement applying for leave to apply for committal, there are 11 allegations of contempt (Allegations A to K). As a result of Fung J’s order dated 13 January 2009, three of the allegations relating to the commencement of HCA189/2008 are not proceeded with at the trial. They are Allegation B (for breach of the order dated 3 December 2007 in commencing HCA189/2008) and Allegations I and J (for interferences with the due and proper administration in (i) employing illegal and deceptive and misleading means to commence proceedings in HCA189/2008, and (ii) using the proceedings in HCA189/2008 for an improper, malicious and ulterior purpose). 13.The remaining eight allegations are as follows:
14.These allegations fall into two categories: (1) Breach of court orders (Allegations A and D) and breach of undertaking given to the court (Allegation C); and (2) Interference with the due and proper administration of justice (Allegations E to H and K). The relevant legal principles 15.At the heart of the Secretary for Justice’s complaint against the respondent in this application is her deliberate flouting of court orders and undue interferences with the administration of justice. In this context, it is apt to note the essence of the law of contempt as explained by Lord Diplock in Attorney General v. Times Newspapers Ltd [1974] AC 273 at 309:
16.The purpose of the law of contempt and the powers of the court to commit for contempt, as the authorities have long recognised, is not to protect the dignity of judges individually, but to prevent interference with the due administration of justice: see Attorney General v. Times Newspapers Ltd [1992] 1 AC 191, 209 and the cases cited in Hong Kong Civil Procedure 2010 Vol. 1 para.52/1/4. As Dodds CJ pointed out in R. v. Fowler (1905) 1 Tas LR 53, at 56:
17.Hence, while contempt of court may take a variety of forms, the emphasis is the wrongful interference with the administration of justice either in a particular case or more generally as a continuing process. 18.As to proof of contempt, it is trite law that strict proof of guilt is required. The applicant must prove to the criminal standard of beyond reasonable doubt, both the act claimed to constitute the contempt and the alleged contemnor’s requisite state of mind: Kao Lee & Yip (a firm) v. Donald Koo Hoi Yan (2009) 12 HKCFAR 830, para.30; see also Secretary for Justice v. Choy Bing Wing, unreported, CACV 11 of 2004 (3 December 2004) at paras.57 &58. 19.In the context of civil contempt (which involves breach of court order or breach of undertaking), the requisite state of mind is that the alleged contemnor knew the facts which are said to make the act in question a contempt, and that the act was not accidental. It is no answer to say that the act was not contumacious in the sense that there was not deliberate intention to breach the court order or undertaking: see Kao Lee & Yip (a firm) v. Donald Koo Hoi Yan at paras.43-53. It is however necessary to show that the contemnor knows of the material terms of the order or undertaking in question: Re L (a Ward) (Publication of Information) [1988] 1 FLR 255 at 259. 20.As for criminal contempt (such as conduct which interferes with or threatens the due administration of justice), what has to be shown is the intentional and conscious doing of an act or the bringing of a state of affairs which objectively is likely to bring about such interference. The mens rea required is an intent to interfere with the course of justice, but it needs not be the sole intent and it may be inferred: Attorney General v. Punch Ltd [2003] 1 AC 1046, at paras.4, 66 and 87 & Attorney General v. Newspaper Publishing Plc [1988] Ch 333 at 383B-C. HCA2107/2006 21.I turn next to the events leading to the institution of this committal application. The majority of the relevant facts are not controversial. The present application stems from a High Court Action No. 2107 of 2006. HCA2107/2006 is one of a series of litigations commenced by the respondent in 2006 in the High Court and also in the Small Claims Tribunal against Mr Robert Lam (“RL”) and those associated with him. 22.HCA2107/2006 was brought by the respondent against Miss Lam Kit Seong, Miranda (“ML”). ML is RL’s sister. She was at the time a director in a company called Robertlam Properties Limited and also the respondent’s superior when the latter was working in the company. In HCA 2107/2006, the respondent alleged that ML misappropriated funds of the company and/or of RL and that there was an agreement between ML and her whereby ML became liable to pay her $560,000. The respondent claimed against ML for the amount of $560,000 and also $3,600,000 as “general or punitive damages for breach of contract”, totalling $4,160,000. 23.Arising from the conduct of HCA2107/2006 and the respondent’s actions in the Small Claims Tribunal are two pieces of satellite litigation, namely, HCA 2831/2006 and HCA 239/2007. Photobition Hong Kong Limited, ML and RL’s solicitors were the respective defendants in the two actions. The defendants in the three actions applied to strike out the respondent’s claims against them. Their applications were heard by Lam J on 30 July 2007, together with RL’s application to strike out the respondent’s claim against him in HCA2742/2006. There were at the same time applications for restricted proceedings order (RPO) and restricted applications order (RAO) against the respondent. An interim RPO and RAO had already been granted against the respondent as a result of the manner in which she conducted the various actions. 24.On 8 August 2007, Lam J handed down the Judgment on the several applications. By the Judgment, Lam J ordered that:
The Order dated 8 August 2007 25.As directed, the solicitors submitted a draft revised ROP and RAO, which was approved and sealed. The order, which was dated 8 August 2007 (“the 8/8/2007 Order”), was filed on 28 August 2007. 26.The 8/8/2007 Order is not endorsed with a penal notice. The order was not personally served on the respondent. Service of the order on the respondent was carried out on 28 August 2007 by inserting through the letter box for her address at 1st Floor, No.21 Li Yuen Street West, Central, Hong Kong, which was the respondent’s address for service in HCA2107/2006. 27.Paragraph 1 of the 8/8/2007 Order provides that:
28.Among the Relevant Proceedings set out in Part A of Schedule 1 to the 8/8/2007 Order is “HCA 2107 of 2006 (Yuen Oi Yee, Lisa -v- Lam Kit Seong, Miranda)”. HCB8954/2007 29.The respondent did not pay the costs of ML for the striking out application. On 18 October 2007, ML presented a creditor’s bankruptcy petition against the respondent under HCB8954/2007. On 27 February 2008, Chung J made a bankruptcy order against the respondent. The bankruptcy order is still subsisting. HCB9860/2007 30.On 19 November 2007, the respondent attempted to issue a bankruptcy petition against ML (“the Bankruptcy Petition”). The Bankruptcy Petition adopted the statutory Form 10C, which is a prescribed form for bankruptcy petition for default in connection with voluntary arrangement. The petitioner was “David & Goliath”, a firm in which the respondent was admittedly one of the two partners. Paragraph 2 of the Bankruptcy Petition alleged that ML had made a voluntary arrangement, which was approved by the respondent and the respondent is the nominee of the said voluntary arrangement. Paragraph 3 of the Bankruptcy Petition stated that the voluntary arrangement was for ML to pay to David & Goliath an amount of HK$4,160,000 (HK$560,000 + HK$3,600,000). It can be readily seen that these amounts are the same as those claimed by the respondent in HCA2107/2006. Indeed, paragraph 3 of the Petition made an express reference to HCA2107/2006. There is no dispute in these proceedings that the voluntary arrangement alleged in the Petition did not exist. 31.On the second page of the Petition in the space for the signature of the attesting witness, the words “Sheung Joi Tak (常在德)” were written. As for the space for the signature of the petitioner, the words “David & Goliath” were inserted. It is the respondent’s evidence that both signatures were written by her. It is also the respondent’s case that 常在德 (Sheung Joi Tak) is a nickname of a male person called Lau Chak Nam (劉澤南), whom she claims is her cousin (表哥). 32.There are some disputes as to the events that happened at the High Court Registry on 19 November 2007, which I shall return to deal with below. What is not in dispute is that although an action number had been assigned to it, the Bankruptcy Petition was neither sealed nor in any way endorsed by the High Court Registry, and it has never been properly issued or presented and was not filed with the High Court. It is also not disputed by the respondent that on 19 November 2007, she was aware that the process for the issuance and presentation of the Bankruptcy Petition had not been completed. In the evening of the same day, however, the respondent served the Bankruptcy Petition on ML’s solicitors. By separate letters dated 20 November 2007 to HSBC and The Bank of East of Asia, the respondent informed these banks that a bankruptcy petition had been commenced against ML and requested the banks to immediately freeze all accounts of ML and Photobition Hong Kong Limited. Consequently, ML’s account with The Bank of East Asia was frozen on 20 November 2007 and only became operative again after being served with an order of Lam J on about 23 November 2007. The Order of 23 November 2007 33.Immediately after being served with the Bankruptcy Petition, ML’s solicitors wrote to the court, bringing the matter to Lam J’s attention and requesting that the Bankruptcy Petition be dismissed. On the following day, a summons was issued on behalf of ML applying to strike out the Bankruptcy Petition. On 23 November 2007, the application came before Lam J. The respondent was absent. In respect of the Bankruptcy Petition, Lam J held that it fell within the scope of the RPO under paragraph 1 of the 8/8/2007 Order and that it had no merits and was doomed to fail. But since the Bankruptcy Petition had not been properly issued and presented, there was no need to make a striking out order. Lam J directed for a report from Registrar of High Court on the happenings at the High Court Registry on 19 November 2007 with a view to referring the matter to the Secretary for Justice for further action. As directed, the Registrar High Court furnished a report to Lam J on 30 November 2007. The respondent was provided with a copy of the report, which she had exhibited in her affirmation to oppose the present application. 34.In light of the respondent’s conduct and to prevent further abuse by her, Lam J granted an interim RPO in terms of the draft provided by ML’s counsel. He also made an interim injunction restraining the respondent from: (i) making representation to third parties that a bankruptcy petition against ML had been issued; and (ii) writing, sending or copying abusive and offensive letters and making harassing telephone calls to His Lordship’s clerk. The return date for the injunction was fixed for 3 December 2007. 35.A sealed copy of the order of 23 November 2007 endorsed with penal notice was personally served on the respondent on 29 November 2007. Paragraph 14 of the order, which is relevant to Allegation C, provides that:
36.The written reasons for Lam J’s decision on 23 November 2007 were handed down on 27 November 2007. The undertaking of 3 December2007 37.On the return day on 3 December 2007, the respondent was present. The transcript of the hearing is in evidence. During the hearing, the respondent opposed the continuation of the interim injunctions against her and offered to make an undertaking to the court in terms of the order made on 23 November 2007. She produced two written undertakings to the court. One of them, which is the undertaking referred to in Allegation C, is in these terms:
38.The respondent confirmed to Lam J that this is a permanent undertaking. She further told Lam J she appreciated it would be a contempt of court to breach the undertaking. She was explained the consequences of possible imprisonment if she were in contempt by breaching the undertaking. The relevant part of the transcript of the hearing reads:
39.Lam J accepted the respondent’s undertaking and made an order on that basis. The respondent’s undertaking was recited in the Order that was drawn up for the hearing on 3 December 2007, the relevant part of which reads as follows:
40.The Order dated 3 December 2007 was endorsed with a penal notice. There was however no record of service of the order on the respondent. Telephone voice recordings left by the respondent 41.After the hearing on 3 December 2007, on Sunday 23 December 2007 at around 4:08 pm and 4:27 pm, the respondent left two voice recordings for the clerk to Lam J. Then on Friday 29 February 2008 at around 3:50 pm, the respondent left another telephone voice recording for the clerk to Lam J, using the name of Wang Kai Chi (王佳芝). 42.Prior to these occasions, the respondent had also left two telephone voice recordings for the clerk to Lam J on Saturday 24 November 2007 at around 2:00 pm and 3:04 pm. 43.The respondent does not dispute that all these voice recordings were left by her and that she had used the name of Wang Kai Chi (王佳芝) on the occasion on 29 February 2008. The recordings had been exhibited in these proceedings. At the hearing, the respondent indicated she did not require the recordings to be played and she is contented for this court to rely on the transcripts. The Order dated14 April 2008 44.Meanwhile on 1 February 2008, the respondent instituted HCA 189/2008 against ML as the 1st defendant and herself under the name of the name of Wang Kai Chi (王佳芝) as the 2nd defendant. She used the name of Tony Boulton as the plaintiff and signed the writ of summons in that name. This was the subject matter of Magistracy case no. ESCC 5404/2008, in which the respondent was prosecuted for an offence of forgery. In light of Fung J’s order dated 13 January 2009, it is not necessary to go into the details of HCA189/2008, other than to refer to a hearing on 11 April 2008 before Lam J. 45.The hearing on 11 April 2008 was to determine, among other matters, whether HCA189/2008 was commenced with proper authority from the person named as the plaintiff in the writ. The respondent was present at the hearing. By the judgment handed down on 14 April 2008, Lam J dismissed the action and granted an injunction restraining the respondent from, inter alia, writing, sending and copying documents to Lam J and his clerk and making telephone calls to clerk to Lam J. Paragraph (2) of the 14/4/2008 Order (“the 14/4/2008 Order”) provides:
46.In paragraph 27 of the Judgment handed down on 14 April 2008, Lam J emphasised that this injunction applies irrespective of the subject matters referred to in the documents, meaning that it is applicable generally, irrespective of the action in which the respondent wishes to put forward the relevant document. 47.The 14/4/2008 Order was endorsed with a penal notice. A sealed copy of it was personally served on the respondent by the Court Bailiff’s Assistant on 9 May 2008. Letters and documents written, sent and copied by the respondent to Lam J and his clerk 48.On the very day the 14/4/2008 Order was made, the respondent wrote and mailed a letter to Lam J and the Chief Judge of the High Court. Thereafter, between 26 May and 30 September 2008, the respondent wrote or copied to Lam J or his clerk a total of 76 letters or documents, which were either delivered by hand or faxed to the court. The respondent does not dispute she had written and sent these 76 letters or documents to Lam J or his clerk. These 76 letters or documents form the subject matter of Allegation D. Although the letter dated 14 April 2008 was included as a particular of Allegation D in the Statement for the leave application, it is not relied upon by the Secretary for Justice for it was written and sent before the respondent was served with the 14/4/2007 Order. 49.Including the 77 letters or documents referred to above, the respondent had between 3 September 2007 and 30 September 2008, also written, sent or copied to Lam J or the clerk to Lam J a large number of letters, affirmations and court documents. It is the Secretary for Justice’s case that 39 of these letters or documents contain insulting, abusive, offensive, ridiculing or threatening language. Notice of appeal dated 22 May 2008 50.As a result of the RPO and RAO imposed in HCA2107/2006 under the 14/4/2008 Order, the respondent made a RPO leave application on 16 May 2008 in respect of an intended judicial review application. On 20 May 2008, Lam J refused to grant leave to the respondent to commence the proceedings. The respondent appealed against Lam J’s refusal. In her Notice of Appeal dated 22 May 2008, the respondent wrote under paragraph 2 of the grounds of appeal the following words:
It is the Secretary for Justice’s case that the respondent had in this Notice of Appeal used insulting, abusive or offensive language against Mr Justice Chung. Allegation A: Breach of the 8/8/2007 Order 51.Allegation is A is for breach of paragraph 1 of the 8/8/2007 Order, which is in essence an RPO against the respondent in respect of the Relevant Proceedings and subject matter as defined in Parts A and B of Schedule 1 thereto. The grounds relied upon by the Secretary for Justice for the Allegation are that the Bankruptcy Petition in HCB 9860/2007 falls within paragraph 1 of the 8/8/2007 Order and the respondent did not have leave from the court to present the Bankruptcy Petition or to commence the bankruptcy proceedings. In the premises, in seeking to commence HCB 9860/2007 by presenting the Bankruptcy Petition, the respondent acted in breach of paragraph 1 of the 8/8/2007 Order. 52.In her affirmations and written submissions, the respondent raises a number of defences to the Allegation. They can be summarised as follows:
53.The Secretary for Justice has adduced the affirmation from the clerk to Lam J to show that a copy of the Judgment handed down on 8 August 2007 had been given to the respondent and that no leave had been given by Lam J for the issue of the Bankruptcy Petition against ML. There are also the affirmations of the process server of ML’s solicitors to show that a sealed copy of the 8/8/2007 Order had been served to the respondent by inserting into the letter box of her address for service in HCA2107/2006. The respondent has raised no challenge to these aspects of the Secretary for Justice’s evidence. 54.As for the events on 19 November 2007, the evidence of the Secretary for Justice consists primarily of the affirmations made by three staff of the High Court, namely, Miss Lee Yuk Yin Sandra (“SL”), Miss Chung Kit Ching Teresa (“TC”) and Miss Cynthia Lee Yuet Wa (“CL”). In addition, SL was cross-examined by the respondent. 55.According to the three witnesses, on 19 November 2007 at about 3 pm, the respondent approached SL, who was on duty at the High Court Registry, to make enquiries. She showed SL a Form 10C (Creditor’s Petition for Default in connection with Voluntary Arrangement) and asked whether there was anything missing from it. She also told SL she had been to the Official Receiver’s Office (“OR Office”) and was told no leave was required for the issue of the petition. SL told her she had to pay the deposit at the OR Office first and also to insert the title of the action on the form. 56.Later at about 3:30 pm, the respondent approached TC for the issue of a case number. As the respondent was subject to a RPO, TC consulted SL, who was her superior, as to whether a case file could be opened for her. SL noticed that the Form 10C did not bear the signature of the attesting witness. The respondent was requested to rectify this and to go before a senior officer to check whether there were other problems with the Form. The respondent declined and left. 57.Then at about 4:15 pm, the respondent approached TL again to issue the bankruptcy proceedings. On checking the Form 10C, SL saw that the attesting witness had signed and the petitioner’s name was David & Goliath. SL had previously not heard of this name and had no idea who was/ were its owner/ partners. SL was of the view that this petition did not fall within the RPO against the respondent because the petitioner, David & Goliath, was not subject to any RPO and it was a petition for default of a voluntary arrangement. And since this type of bankruptcy petition could be issued without leave of the bankruptcy master, SL instructed TC to assign an action number to the Form 10C submitted by the respondent. The case number HCB9860/2007 was issued at 4:21 pm. The respondent was asked to go to the listing officer to obtain a hearing date for the petition and then to return to TC to file the origin petition and obtain sealed copies of the same. 58.When the respondent had left TC’s counter, it occurred to SL that she had not checked whether the petition was attested by a solicitor or the commissioner for oath of the OR Officer. She therefore telephoned CL, who was the listing officer, to report on this. When the respondent approached CL, she was asked who the attesting witness was, to which she replied he was the petitioner’s accountant. CL told the respondent the petition should be attested before a solicitor or the commissioner of oath of the OR’s Office and she had to put the petition in order. No hearing date was given for the petition. After the respondent left her room, CL telephoned SL to inform her of what had happened. Later that afternoon after 5:00 pm when the court registry had closed, SL came across the respondent at the lobby of the registry when the respondent gave her a copy of the petition and said she would file the original petition later on. 59.It is SL’s evidence that the respondent was alone when she approached her and when she was at TC’s counter. She disagreed she had been introduced to anyone by the name of Lau Chak Nam or that she had met or spoken to such a person. She also disagreed she had any discussion or telephone conversation with the respondent about the name Sheung Joi Tak. She further denied the respondent’s suggestion that she had contacted Lam J’s clerk in the afternoon of 19 November 2007. She had no recollection of the respondent asking whether a bankruptcy order was within the RPO against her and whether she could use the name of David & Goliath. SL was however clear that she did not confirm anything to the respondent. When she was asked about her ability to recall the events on 19 November 2007, SL explained she had made a note of the incident and provided the information to her superior when the Registrar of High Court was directed by the order of Lam J of 23 November 2007 to prepare a report. 60.The respondent’s evidence in her affirmations and cross-examination is that David & Goliath was a partnership initially between herself and her husband. Without letting her husband know, she arranged for her cousin, Lau Chak Nam (“Lau”), to replace her husband as one of the two partners of David & Goliath. This she did in order to open a bank account for the firm, as part of the preparatory step for her plan to issue a bankruptcy petition against ML. The Bankruptcy Petition was the respondent’s revenge against ML for, among other things, presenting the bankruptcy proceedings against her in HCB8954/2007. The respondent said she was anxious to present the Bankruptcy Petition against ML on 19 November 2007 so as to freeze the bank accounts of ML, because she knew ML had just sold her properties and the sale proceeds would be in her bank accounts. 61.According to the respondent, Lau was present with her throughout the afternoon of 19 November 2007, both when she was at the High Court Registry and at the OR’s Office. She said she brought Lau along so that he could file the bankruptcy petition in the event she was not allowed to issue the petition in the name of David & Goliath. She claimed that when she approached SL, she explained to her that Lam J had not made any RPO or RAO against Lau and Lau was her partner in David & Goliath. She also told SL that it was Lau who intended to file and serve a bankruptcy petition against ML in his personal capacity and in the name of David & Goliath. She further pointed out to SL that the RPO and RAO made by Lam J against her only referred to her company, but David & Goliath was also Lau’s company and it would be unfair not to allow Lau to present the petition. The respondent said that after contacting Lam J’s clerk, SL advised her to make her affirmation at the OR’s Office. 62.It is also the respondent’s evidence that she had showed a copy of Lam J’s judgment dated 8 August 2007 to SL, who, after studying it, agreed that Lau could present the bankruptcy petition in his personal capacity and in the name of David & Goliath. The respondent further said that, in answer to her questions whether a “bankruptcy order” was within the scope of the RPO against her and whether the name of David & Goliath could be used, SL “confirmed to me that a bankruptcy order was not under the scope of my RPO and I might use the name of David & Goliath but not my name as Lisa Yuen”: the respondent’s affirmation dated 17 August 2010 para.3(3). 63.The respondent also claimed that when she was at TC’s counter, SL and TC asked her to sign the name of the witness on the petition and told her an initial or a nickname could be used. She therefore signed the nickname of “Sheung Joi Tak” in front of them. Thereafter, a case number was given to the petition. When she went to obtain a hearing date, CL saw the name of Sheung Joi Tak and questioned who the person was. CL then telephoned SL and had a good laugh between them as this was the name of a character in a TV drama series. In the end, CL told them to go to the OR’s Office to affirm the petition. By then, it was 5:00 pm, so CL told her to return the following morning. When the respondent and Lau returned from the OR’s Office to the High Court building, they saw TC (not SL) at the lift lobby. The respondent asked whether she should return the documents and the case number for cancellation. TC replied she could keep the case number, but asked for a copy of the documents. 64.The respondent said that although she did not succeed in presenting the Bankruptcy Petition, she was happy to have obtained a bankruptcy case number because with it, she could carry out her revenge on ML. In the same evening, she asked Lau to telephone ML’s solicitors and also served a copy of the bankruptcy petition at the solicitors’ office. She further contacted The Bank of East Asia to inform them of the bankruptcy proceedings with a view to procuring the freezing of ML’s bank accounts. 65.In her cross-examination, the respondent explained she used David & Goliath as the petitioner because she had given a name card of David & Goliath to ML at the meeting during which ML agreed to pay her $560,000, and she wanted ML to know that this was a claim arising from their agreement. The respondent accepted that the claim in the Bankruptcy Petition was similar to her claim in the previous action against ML and she was merely using another name or capacity to sue ML. The respondent admitted that it was her own idea to commence bankruptcy proceedings against ML and the Bankruptcy Petition was drafted and filled out by her. As to the involvement of Lau on 19 November 2007, the respondent agreed that Lau in fact played no part in the attempt to present the Bankruptcy Petition. There was no need to involve him because she encountered no problem in using the name of David & Goliath. She accepted that Lau, whom she claimed was nicknamed Sheung Joi Tak, was not qualified to be the attesting witness to the Bankruptcy Petition. 66.In her oral testimony, the respondent retracted from her affirmation evidence in several material aspects. First, she no longer maintained that it was SL and TC who told her to sign the attesting witness’ name on the Bankruptcy Petition, and that she signed the name of Sheung Joi Tak in their presence. Instead, she said she could not be sure at what point and at what place did she sign the attesting witness’ name on it. Second, she could not remember whether she had asked SL about using an initial or nickname for the attesting witness. Third, she did not know whether SL had contacted Lam J’s clerk before instructing TC to assign a case number to the Bankruptcy Petition. She agreed she was only guessing. Fourth, it was no longer her case that Lau was standing next to her all the time. Her oral evidence is that Lau was not beside her when she was in CL’s room to obtain a hearing date, and she could not remember whether Lau was with her when she allegedly told SL she had to check with Lau whether he was qualified to be an attesting witness. She further testified that Lau had left her at some time after 4:00 pm as he had to go to work at 5:00 pm. Fifth, while she said in the affirmation that she had introduced Lau to SL on 19 November 2007, she admitted this did not happen. The respondent was in fact forced to make this admission because she claimed to have told SL that the attesting witness was in mainland China. 67.The respondent’s evidence in her affirmations and in court about the events on 19 November 2007 is at variance with the account she gave in her letter dated 26 November 2007 to the clerk to the Chief Judge of High Court in a number of aspects. Just to mention a few: First, while she said in the letter that Lau was her friend, she claimed in her affirmation and oral evidence that Lau was her cousin. Second, the respondent wrote in the letter that she obtained $12,150 from a bank in Pacific Place to pay the deposit of the OR. Her account in the affirmation is that because the OR required cash payment, Lau was forced to draw cash from the ATM machine to pay for the deposit. Third, she stated in the letter that when they were at the OR’s Office, upon her request, Lau signed as the attesting witness by putting down his nickname Sheung Joi Tak on the Bankruptcy Petition. But in her affirmations and oral evidence, she said both the petitioner’s and the attesting witness’ signatures were signed by her. When this inconsistency was put to her, the respondent admitted she had lied about this in the letter. Fourth, the respondent said in cross-examination that she went to CL to obtain a hearing date because by that stage she did not know the attesting witness had to be a Hong Kong solicitor or accountant. However, she stated in the letter that before the attesting witness’ signature was put in the petition, a Miss Lee of the OR’s Office had already told her that the attesting witness had to be a solicitor or accountant practising in Hong Kong. Fifth, the respondent said in the letter that after she left a copy of the Bankruptcy Petition with the office of ML’s solicitors, she phoned Lau, who was at that moment in China, to make a phone call to ML’s solicitors. In her oral evidence, she claimed that Lau went to work in a restaurant in Hong Kong after he left the High Court building. Similarly, when the discrepancy was put to her, she admitted telling a lie in the letter. 68.Sixth and importantly, while the respondent claimed in cross-examination that she did not know a bankruptcy petition was within the scope of the RPO imposed by paragraph 1 of the 8/8/2007 Order and that she did not consider David & Goliath to be her company, she said in the letter (at para.20): “I used my company’s name called David & Goliath as a petitioner against Miss Miranda Lam in Form 10C because I cannot use my name as Lisa Yuen or whatsoever restrained in HCA509 of 2004, HCA96 and HCMP1087 of 2005, HCA2107, 2742, 2831, 2735 of 2006, 239, 328, 728, 1242 of 2007.” 69.The respondent in fact ran into considerable difficulties about the time when Lau became her partner in David & Goliath. According to the Business Registration record (“BR record”), David & Goliath commenced business on 1 April 2006 and ceased business on 31 December 2007. The respondent was one of the two partners throughout the entire period. Lau became a partner since 5 December 2007. This means Lau was not yet a partner when the attempt was made to present the Bankruptcy Petition against ML. The respondent alleged that the BR record was wrong. She said Lau had replaced her husband as a partner on a date before 19 November 2007. She was adamant this was the case because 5 December 2007 was her husband’s birthday and that by 19 November 2007 David & Goliath already had a bank account and a cheque book with Lau as an authorised signatory. The respondent was however unable to produce any document or proof to substantiate these assertions. It is no good for her to say that she could obtain the proof from the bank if she was given time to do so. The BR record of David Goliath was exhibited to ML’s affirmation filed in November 2008. As late as April 2010, the respondent had in her own affirmation raised the issue that the Bankruptcy Petition was intended to be filed and issued by Lau in his capacity as a partner of David & Goliath. In the circumstances, she should have taken steps to obtain the necessary proof had she wished to demonstrate that the BR record was erroneous. She has ample time and opportunity to do so, but she chose not to. 70.More significantly, the respondent had offered no explanation as to how the BR record, which was compiled from information provided by those who operated the business, came to contain an error on the date Lau became the respondent’s a partner. In addition, the respondent had prevaricated in her evidence as to when exactly did Lau became her partner. In her affirmation dated 28 June 2010, she stated that on about 18 October 2007 that Lau became a partner of David & Goliath. In her cross-examination, however, she said this took place about 2 weeks before 19 November 2007. In short, I find the respondent’s evidence that Lau became her partner in David & Goliath on a date earlier than that shown on the BR record and that the BR record contains an error in this regard wholly unconvincing. I reject it. 71.The many oscillations, inconsistencies and self-contradictions in the accounts given by the respondent in her letter, affirmations and oral testimony demonstrate that the respondent is not a truthful and reliable witness. She is prepared and quite able to say one thing at a time and to make up and change her story when it suits her. 72.I accept the evidence of SL, TC and CL and find that the events on 19 November 2007 took place in the manner as related by them. I reject the respondent’s evidence insofar as it differs from their evidence. 73.In particular, I find as a fact that:
74.I now deal with the defences raised by the respondent to Allegation A. In light of the respondent’s admission that Lau played no part in the attempt to issue the Bankruptcy Petition, the arguments that the Bankruptcy Petition was intended to be filed and served by Lau, that the respondent only assisted Lau to commence the bankruptcy proceedings, and that the registry staff had agreed that Lau could issue the proceedings in his capacity as a partner of David & Goliath are both irrelevant and unsustainable. Further, on the basis of my findings on the evidence with regard to what happened on 19 November 2007, the contentions that the registry staff had told lies and that SL had confirmed to the respondent that bankruptcy order was not within the scope of the RPO under the 8/8/2007 Order and that the name of David & Goliath could be used fall to be rejected. Even if SL did make the confirmation, it is irrelevant to whether the respondent had in fact breached the 8/8/2007 Order. After all, it is not SL’s duties, and she is not qualified, to give legal advice on the scope and application of court orders. For the same reason, if the Bankruptcy Petition is prohibited by the 8/8/2007 Order, but the registry staff has failed to notice it, it does not mean the respondent has not breached the order by attempting to present the Bankruptcy Order. 75.This brings me to the core issue of whether the Bankruptcy Petition falls within the scope of paragraph 1 of the 8/8/2007 Order. I have found that the subject matter of the Bankruptcy Petition is a repetition of the respondent’s claim against ML in HCA2107/2006, which is one of the Relevant Proceedings in Part A of Schedule 1 to the 8/8/2007 Order. In fact, paragraph 3 of the Bankruptcy Petition made an express cross-reference to HCA2107/2006. It follows that the Bankruptcy Petition is within the scope of prohibition under paragraph 1 of the 8/8/2007 Order. Further, paragraph 1 of the 8/8/2007 Order prohibits the commencement of proceedings “by whatever originating process”. A bankruptcy petition is a mode of originating process. The use of a bankruptcy petition will not take the matter outside the scope of prohibition under paragraph 1 of the 8/8/2007 Order. The respondent claims that she did not know bankruptcy petition was within the scope of prohibition. This is to be rejected having regard to what she wrote in the letter dated 26 November 2007, namely, she used David & Goliath as the name of the petitioner because her name could not be used. 76.As to the respondent’s argument that David & Goliath was not her company and is therefore not caught by paragraph 1 of the 8/8/2007 Order, four points need to be made. First, the respondent clearly regarded David & Goliath as her company in November 2007, as manifested by what she wrote in the letter dated 26 November 2007 to the court and her letters to HSBC and The Bank of East Asia both dated 20 November 2007. In all these letters, she referred to David & Goliath as “my company”. Second, while David & Goliath was registered as a partnership, it cannot be overlooked that the respondent was admittedly in complete control of the firm. It was her evidence that she was the one to arrange for Lau to replace her husband as the other partner, and that she had done so without having to inform her husband or obtain his agreement. Third, the plain meaning of the words “her company” in the 8/8/2007 Order clearly cover any company owned by the respondent, whether solely or jointly as a partner. The respondent’s argument, if accepted, will mean that the prohibition only applies to a sole proprietorship of the respondent. There is no warrant for such a narrow construction, especially having regard to the reasons underlying the making of the order, as explained in the Judgment of 8 August 2007. Fourth, the subject matter of the prohibition under paragraph 1 of the 8/8/2007 Order is the commencement of fresh proceedings by the respondent. The provision about the capacity and name used in bringing the fresh proceedings was to prevent attempts to circumvent the prohibition. On the respondent’s admissions, the Bankruptcy Petition was engineered by her alone and for serving her purpose of taking revenge on ML. She used the name of David & Goliath because she could not use her personal name. Clearly, the respondent was seeking to circumvent the prohibition by the use of the name David & Goliath. What she did was to deliberately flout the order of the court. 77.For these reasons, I do not accept the respondent’s argument that David & Goliath was not her company or that the use of its name to commence the Bankruptcy Petition had the effect of taking her attempts to commence the proceedings in HCB9860/2007 outside the prohibition of paragraph 1 of the 8/8/2007 Order. I find the respondent had acted in breach of paragraph 1 of the 8/8/2007 Order in seeking to commence the bankruptcy proceedings in the name of her company, David & Goliath. 78.As to the fact that the bankruptcy proceedings were in the end not properly commenced, what the respondent had done was sufficient to embark on a process of commencing the proceedings as to render her liable for contempt of court: see Sino Wood Investment Ltd v. Wong Kam On (2005) 8 HKCFAR 715. 79.The evidence shows the 8/8/2007 Order had been served on the respondent before 19 November 2007. The respondent has not disputed this. She had additionally received a copy of the Judgment dated 8 August 2007. The fact that the respondent was aware of the prohibition under paragraph 1 of the 8/8/2007 Order is further borne out by her letter dated 26 November, in which she said she had to use David & Goliath because she could not use her own name. As found above, the terms and the effect of the order is clear. There is no rational basis for the respondent’s view that the prohibition does not cover proceedings commenced in the name of David & Goliath. In any event, even if the respondent was mistaken that the use of David & Goliath is not caught by the 8/8/2007 Order, it is not a defence. It is because she knew the terms of the order and the facts which constitute her act a contempt, and the act was not accidental: see Kao Lee & Yip, op cit at para.63 and Citybase Property Management Ltd v. Kam Kyun Tak (No. 1) [2003] 2 HKC 98 at 103H-I. 80.The 8/8/2007 Order was not endorsed with a penal notice. This raises the question whether the respondent was aware of the consequence of a breach of the order, including the possibility of committal, in which case the requirement of a penal notice may be dispensed with. Mr Wong has fairly pointed out that the evidence before the court does not show that by 19 November 2007 the respondent knew she was liable to be committed for contempt if she acted in breach of the 8/8/2007 Order. I consider that the respondent should be given the benefit of the doubt. Hence, while I find Allegation A proved and that the respondent was guilty of contempt of court, no punishment should be impose on her: see MSA v. London Borough of Croydon [2009] EWHC 2474 (Admn). Allegation C: Breach of the Undertaking 81.Allegation C is for breach of the Undertaking, under which the respondent undertook that, except her written application for RPO or RAO leave, she would not write, send or copy letters to Lam J or his clerk and she would not make telephone calls to the clerk of Lam J for whatever purposes. The grounds for the Allegation are that on three occasions, twice on 23 December 2007 and once on 29 February 2008, the respondent telephoned and left voice recordings for the clerk to Lam J and that she did so without leave of the court and with clear knowledge of the Undertaking. 82.The respondent does not dispute she had given the Undertaking to the court at the hearing on 3 December 2007. She also does not dispute she had left the three voice recordings for the clerk to Lam J. It is clear from the transcript of the hearing on 3 December 2007 that the respondent had been explained, and she fully appreciated, the consequences of breach of the Undertaking. The evidence also establishes that the process serve of ML’s solicitors had personally served on the respondent the order dated 3 December 2007 that embodied the Undertaking and was endorsed with a penal notice. In fact, such service is not required since it was the respondent who personally gave the Undertaking and she was aware of the consequences of breach: Hussain v. Hussain [1986] Fam 134. 83.The respondent argues that she has not breached the Undertaking because:
84.The first two arguments can be taken together. The terms of the Undertaking as well as the Order dated 23 November 2007 have no temporal limit. There is no basis for saying that they only prohibit telephone calls made during office hours and do not extend to calls made outside office hours. Further, the distinction sought to be placed on telephone calls and voice messages is a distinction without a difference. The respondent could not possibly have left voice messages without telephoning the clerk to Lam J. It is also clear from the contents of the voice recordings that the respondent was calling and leaving the messages specifically for the clerk to Lam J. The respondent’s argument that anyone could have picked up the phone call or messages is therefore devoid of merits. As for the suggestion that voice messages left outside office hours would cause no interference to the clerk to Lam J, it is again unmeritorious. When the Judge’s clerk returned to work, she would have to pick up and listen to the voice messages and incurred time and resources on doing so. 85.As to the last two arguments, the purpose of making the telephone calls and voice messages is irrelevant. By the Undertaking, she undertook not to make telephone calls to the clerk to Lam J “for whatever purposes”. The respondent is not permitted by the order of 23 November 2007 or the Undertaking to make oral applications to Lam J. 86.I find the respondent had acted in breach of the Undertaking by making telephone calls and leaving voice recordings on the three occasions identified by Allegation C, and that on each of the occasions, she did so consciously and deliberately and with full knowledge of the Undertaking. I find the respondent guilty of contempt of court under Allegation C. Allegation D: Breach of the 14/4/2008 Order 87.Allegation D is for breach of the 14/4/2008 Order, which prohibits the respondent from writing, sending or copying documents to Lam J or his clerk, without prior permission by Lam J and save as to the filing of court documents through the court registry. The grounds of the Allegation are that since the personal service of the 14/4/2008 Order on the respondent and up to 30 September 2008, she had, other than by filing through the court registry and without prior permission of the court, sent letters or documents to Lam J and/or his clerk on 76 occasions. 88.The evidence before the court shows that a sealed copy of the 14/4/2008 Order endorsed with penal notice was served on the respondent personally on 9 May 2008. Copies of the 76 letters and documents in question were exhibited to the affirmation of Fung Mei Fung Jenny. The affirmation of Lam J’s clerk confirms that Lam J had not given leave for these letters or documents to be sent. 89.The respondent does not dispute the service of the 14/4/2008 Order on her. She accepts she had written, sent and copied these letters or documents and that no leave had been given for her to do so. Her defence is that:
90.The first and last argument can hardly be a defence. The order prohibits the respondent from sending or copying documents to Lam J and his clerk. It is irrelevant that the respondent felt the urge to write to the Judge. Further, under the terms of the RPO and RAO imposed against the respondent and Practice Direction 11.3, papers for RPO and RAO leave applications are to be left at the court registry. There was no need and no justification to send them to Lam J. 91.As to the second argument, paragraph 27 of the Judgment of 14 April 2008 was to explain the scope and meaning of the injunction order imposed by Lam J under paragraph 26(1), which was reproduced in the 14/4/2008 Order. It is to aid the interpretation and understanding of the 14/4/2008 Order and the two are to be read together. The fact that paragraph 27 was not included in the Order will not undermine the effect of the 14/4/2008 Order. There is no doubt that the 76 letters and documents are within the scope of prohibition under the 14/4/2008 Order. 92.Turning to the third argument. Fung J’s direction only relates to the subject matter of the prosecution in ESCC5404/2008, which is the forgery of Mr Boulton’s signature on the writ in HCA189/2008. The complaint under Allegation D is the act of sending or copying letters and documents, which is different from the subject matter in the criminal prosecution. There is also no overlapping of the facts. This defence is untenable. 93.I find the respondent had acted in breach of the 14/4/2008 Order in writing, sending or copying to Lam J on 76 occasions and that she did so consciously and deliberately and with full knowledge of the prohibition under the Order. The respondent is guilty of contempt of court under Allegation D. Allegation E: Insulting, abusive and offensive letters and affirmations 94.Allegation E is for interference with the due and proper administration of justice by reason of letters written, sent or copied to and affirmations filed with the court. The grounds upon which this allegation is based are twofold. First, the respondent had between 3 September 2007 and 30 September 2008 written and/or copied letters to various judges in large volume for no good reason. They include the 76 letters and documents covered by Allegation D. Second, the respondent had in some of the letters and affirmations, used and adopted insulting, abusive, offensive, ridiculing or threatening language against Judges and their clerks. The Secretary for Justice’s case is that the volume of these correspondence and documents, individually and cumulatively, and the language used therein, constituted an interference with the due and proper administration of justice. 95.The 39 letters and affirmations were exhibited to the affirmation of Fung Mei Fung Jenny. Some of these letters were in the name of Wang Kai Chi, which the respondent does not dispute is her alias. The particular words used in each of them which are said to constitute insulting, offensive, ridiculing and/or threatening language are set out in paragraph 33 of the Statement. The respondent does not dispute she had written copied to and filed with the court the letters and documents complained of. She also does not dispute the contents of the 39 letters and affirmations particularised under paragraph 33 of the Statement. In the circumstances, there is no need to list out all the letters and documents in this Judgement or to reproduce the words complained of. 96.In Re the Ludlow Charities; Mr Lechmere Charlton’s Case (1837) 2 My & Cr 316, at 339, Lord Cottenham LC pointed out that:
97.It can be readily seen from a reading of the letters and affirmations and paragraph 33 of the Statement that the language used is insulting, offensive, abusive, ridiculing and threatening. For example, the respondent accused judges of being biased, stupid, nonsense and perverting the course of justice. She repeatedly stated that she would “play games” with the judges and that she enjoyed challenging, vexing and taking revenge on judges. She further launched personal attacks against judges by calling them names and making scandalous and vulgar insinuations against them. The respondent even threatened to follow Lam J around like a ghost and to act in such a way as to provoke Lam J into citing her for contempt. 98.As submitted by Mr Wong, the letters and documents were written with the intent of victimizing judges who had made decisions against the respondent and of improperly influencing the conduct of the judges in their conduct of matters relating to her, including consideration of her applications for leave to commence fresh proceedings and also consideration of her pending appeals. In this regard, it matters not that the respondent had addressed her letters and documents to the clerks to the judges or by citing some other proceedings or matters as the caption or title to the letters and documents: see Mr Lechmere Charlton’s case, op cit and at 353. Communications with a judge for the purpose of influencing his decision on matter publicly before him if calculated to divert the course of justice is a contempt of court. 99.Although the respondent had attempted to deal with Allegation E in her affirmations filed for the trial, it is unclear what her arguments are. She seemed to suggest she had in other letters and documents sent to Lam J and his clerk, used languages that are much more offensive than those relied upon for Allegation D. She further said in her written submission that it was because she was irritated by Lam J and his clerk that she resorted to doing the acts complained of. Plainly, neither of this provides a justification for bombarding judges with loads of letters (in some instances, up to four or more letters a day) or the use of highly insulting and abusive language in these letters as well as in affirmations filed with the court. It is not difficult to imagine the resources wasted and the nuisance caused to the judiciary in having to receive these frivolous letters and documents. 100.The respondent had also made some vague references to absolute immunity, implied undertaking and absolute privilege, and claimed that the language used by her was protected because the letters and documents were mostly related to HCA 189/2008. There is however no particulars given and the point is not understood. The respondent also referred to her right to freedom of speech under the Basic Law and as part of her human right. As discussed in the context of Allegation K, the right to freedom of speech is not absolute. Maintaining the authority and impartiality of the judiciary is a permitted exception under Article 16(3) of the Hong Kong Bill of Rights Ordinance, Cap. 383. 101.I find the volume of the correspondence and affirmations written and/or copied to and filed with the court as particularised under Allegation E, taken individually and cumulatively, coupled with the insulting, abusive, offensive, ridiculing and threatening language used therein constitute an interference with the due and proper administration of justice. I find the respondent guilty of contempt of court under Allegation E. Allegation F: Insulting, abusive and offensive telephone calls to Lam J’s clerk 102.Allegation F is for interference with the due and proper administration of justice by reason of telephone calls made to the clerk to Lam J. The ground upon which this allegation is based is that the respondent had on five occasions telephoned and left voice recordings for the clerk to Lam J, containing insulting, abusive, offensive, ridiculing or harassing remarks. Three of the five occasions are the same occasions referred to under Allegation C. The other two occasions took place in the afternoon of 24 November 2007. 103.The transcripts of the voice recordings were set out in paragraphs 22 and 34 of the Statement and further exhibited to the affirmation of the clerk to Lam J. In her affirmation, Lam J’s clerk stated that these telephone messages had interfered with her work. When she returned to work, she had to spend up to ten or more minutes to listen to the voice recordings left by the respondent. She also stated that she found the contents of the voice recordings a nuisance and disturbing. 104.The respondent admits she had left the voice recordings in question. She explained in her affirmation that they were all made for the purpose of HCA 2107/2007 and HCB 9860/2007. In relation to the two occasions on 24 November 2007, she claimed that she did so out of emotional stress because earlier on she was unwell, but Lam J’s clerk had refused her request to summons an ambulance for her. All these do not amount to a defence to the allegation. 105.Insofar as the respondent also relies on the defence to Allegation C, as analysed above, they do not afford the respondent a defence. 106.As with the case in Allegation E, it is obvious from the transcripts of the recordings that the contents are offensive and harassing. As said by Sir Richard Scott VC in In re de Court [1997] TLR 601, it is paramount to the administration of justice that court officers should not be interfered with in the proper discharge of their duties and functions. 107.The telephone voice recordings left by the respondent had caused nuisance and harassment to the clerk to Lam J and had interfered with the proper discharge to her duties. In the circumstances, these telephone calls and messages constitute undue interference with the administration of justice amounting to contempt of court. I find the respondent guilty of contempt under Allegation F. Allegation G: Deceptive and misleading means in seeking to commence HCB986/2007 108.Allegation G is for interference with the due and proper administration of justice by knowingly employed deceptive and misleading means in seeking to commence bankruptcy proceedings against ML in HCB9860/2007. The Secretary for Justice relied on one or more of the following as the deceptive and misleading means employed by the respondent:
109.On the representation that no leave was required for the presentation of the Bankruptcy Petition, what SL had stated in her 1st affirmation (at paragraph 3) is that the respondent told her she had consulted the OR and was told “no leave to issue proceedings was required in this case”. It is not very clear what sort of leave was being referred to, whether the respondent was taking about RPO leave or leave from the bankruptcy master to issue bankruptcy petition. In paragraph 6 of the same affirmation, SL stated she also took the view that the Bankruptcy Petition could be issued without leave because a petition for default in connection with voluntary arrangement does not require leave from the bankruptcy master to be issued. If the respondent was referring to leave from the bankruptcy master, then it could not be said that she had made a false representation. 110.Thus viewed and bearing in mind the criminal standard of proof, I find that it has not been made out to the required standard of proof that the respondent had falsely represented to the registry staff that no leave was required for the presentation of the Bankruptcy Petition. 111.As to the second and third deceptive and misleading means relied upon by the secretary for Justice, they are clearly made out as a result of my findings as set out under Allegation A, and also having regard to Lam J’s findings in the Judgment of 27 November 2007 (at paragraphs 10 and 11) that the respondent had tried to: (i) mislead the registry staff by using Form 10 and falsely claiming the existence of a voluntary arrangement by ML under which David & Goliath was the creditor; and (ii) evade the attention of the registry staff by using the name of David & Goliath as the petitioner instead of her own name. 112.Mr Wong submitted, and I agree, that there is overwhelming evidence that the respondent deliberately and knowingly present a fictitious and false claim against ML by means of a Form 10 petition presented in the name of David & Goliath. In order to achieve he ends, she had employed the second and third deceptive and misleading means and statements set out above. The respondent is therefore guilty of contempt in knowingly putting forward a falsehood in an attempt to deceive the court and thereby interfere with the due and proper administration of justice: Lord v. Thornton (1614) 2 Bulstr 67; Re Elsam (1824) 3 B&C 597; Apted v. Apted and Bliss [1930] P 246; and R v. Weisz, ex p Hector MacDonald Ltd [1951] 2 KB 611. I find the respondent guilty of contempt of court under Allegation G. Allegation H: Abuse of process 113.Allegation H is for interference with the due and proper administration of justice by abusing the process of the court in seeking to commence the proceedings in HCB99860/2007. The ground for this allegation is that the respondent sought to commence the proceedings for an improper, malicious and ulterior purpose, namely, as an act of revenge against ML. 114.It is admitted by the respondent in her letter dated 26 November 2006 to the court and in her affirmations and oral evidence that her purpose and objective in seeking to commence the bankruptcy proceedings in HCB9860/2007 was to have her revenge on ML. She made similar admissions in the letter to ML’s solicitors dated 19 November 2007 that accompanied the service of the Bankruptcy Petition. 115.Further, the respondent admits that she served the Bankruptcy Petition on ML’s solicitors knowing full well that it had not been properly issued and that it contained a false and fictitious claim. It was with the same knowledge that she informed ML’s bankers about the bankruptcy proceedings in HCB9860/2007. 116.There cannot be the slightest doubt that the respondent had committed a knowing misuse and abuse of the process of the court. It must be an interference with the due administration of justice and a very grave one because the court process was invoked fraudulently. I find the respondent guilty of contempt of court under Allegation H. Allegation K: Insulting, abusive or offensive language against Chung J 117.Under Allegation K, the Secretary for Justice’s case is that the respondent had used insulting, abusive or offensive language against Mr Justice Chung in the Notice of Appeal dated 22 May 2008 and which interferes with the due and proper administration of justice, amounting to contempt of court. 118.The respondent does not dispute that she wrote the Notice of Appeal and that it contained the words complained of. It appears from her affirmations and submission that she defends the allegation on the ground of the right of freedom of speech. 119.In terms of principle, judges are of course not sheltered by the law of contempt from criticisms. In Ambard v. Attorney‑General for Trinidad and Tobago [1936] AC 322 at 335, Lord Atkin said:
120.However, it is equally trite that the right of criticism has its limits and boundaries. As Hogan CJ observed in Edwards v. Almao (No.3) [1957] HKLR 269, at 277-278:
121.In respect of the right to freedom of speech, it is correct that the Basic Law (Article 27) and as well as the Hong Kong Bill of Rights Ordinance, Cap 383 (Article 16(2)) guarantee this right. As with the right to criticism, the right to freedom of speech is not absolute. The authorities have long established that the law of contempt is a permissible restriction against the freedom: Attorney General v. Cheung Kim Hung [1997] HKLRD 472; Wong Yeung Ng v. Secretary for Justice [1999] 2 HKLRD 293; see also Ahnee v. Director of Public Prosecutions [1999] 2 AC 294, at 305-306 and Skalka v Poland (2004) 38 EHRR 1. 122.The Notice of Appeal dated 22 May 2008 was for the purpose of an appeal against the decision of Lam J on 16 May 2008. It was not an appeal against the decision of Chung J. There is therefore neither basis nor necessity to refer to Chung J. It is also clear from a reading of the document that the respondent was not engaged in a process of reasoning or rational discussion and was not making a bona fide balanced and justified criticism of the Judge’s decision. It is not a case that the respondent was exercising a right of criticism and doing so in good faith. On the contrary, it is an unwarranted personal attack of the Judge. The language used by the respondent against the Judge is, by any standard, insulting, abusive and offensive. It is a blatantly invective statement made only to insult and abuse the Judge. The right to freedom of speech cannot afford the respondent a defence to this Allegation. 123.I find this allegation proved beyond reasonable doubt against the respondent. The respondent is guilty of contempt of court under Allegation K. Conclusion 124.For the reasons set out above, I am satisfied beyond reasonable doubt that the acts of the respondent amount to breaches of court orders and undertaking given to court in the manner particularised under Allegations A, C and D, thereby constituting contempt of court. I am also satisfied beyond reasonable doubt that the conduct abuse and of the respondent amount to interferences with the due and proper administration of justice in the manner particularised under Allegations E, F, G, H and K, thereby constituting contempt of court. 125.The respondent is therefore committed for her contempt, save in relation to Allegation A.
Mr Stewart Wong instructed by the Department of Justice for the applicant. The respondent, unrepresented, appeared in person. |
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