Chan Wai Tak v. Chiu Kwok Kuen

HCMP 899/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 899 OF 2010

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Before: Hon Chung J in Court

Date of Hearing: 2 February 2011

Date of Sentence: 2 February 2011

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REASONS FOR SENTENCE

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1.This is the decision on sentence, the defendant having been committed for contempt of court.

2.The facts leading to, and the basis for, the committal had been set out in the judgment handed down earlier on 2 February 2011 and will not be repeated.

3.The principles relevant to sentencing for contempt of court have been set out in authorities and text books; see for example:-

(a) Hong Kong Civil Procedure 2011, Vol. 1, para. 52/1/6 to 52/1/9;

(b) Arlidge, Eady & Smith on Contempt (2005) 3^rd Ed, Cap. 14 (especially para. 14-1 to 14-7, 14-40 to 14-51, 14-101, 14-110 and 14-132 to 14-133).

4.It was observed in Morris v Crown Office [1970] 2 QB 114, 125:-

“The powers at common law remain intact. It is a power to fine or imprison, to give an immediate sentence or to postpone it, to commit to prison pending his consideration of the sentence, to bind over to be of good behaviour and keep the peace, and to bind over to come up for judgment if called upon….”

Therefore, quite a few sentencing options are available to the sentencer.

5.It was also observed that imprisonment should be regarded as a sanction of last resort in civil contempt: Arlidge, Eady & Smith, para. 14‑5.

6.The facts relevant to the defendant’s sentence in this committal include:-

(1) the defendant’s e-mail correspondence in June 2010 shows that he was fully aware of his undertaking given earlier to court, and its effect, and that he realizes the potential consequence of its breach (including the sanction of imprisonment) and decided to take the risk by breaching it nevertheless;

(2) he has not shown remorse for the contempt and resisted the application for his contempt to the end;

(3) an e-mail the authenticity of which is doubtful has been relied upon to resist the application for committal.

7.The defendant discloses that he is 47 years old and is married.  His wife is a housewife and his daughter in her twenties is studying at university.  He is the sole breadwinner of the family.  Further, his parents, who are in their eighties, also rely financially on him.  The defendant also says that he has not transgressed the law and is a man of good character.  His family members also plea for leniency from the court.

8.Any custodial sentence will have a traumatic effect not only for the person imprisoned, but unfortunately often for his family as well.  What makes sentencing in this case more difficult is that tomorrow will be the Lunar New Year, a time for family members to gather by Chinese tradition.

9.However, that sentencing should take place today is at least partly the defendant’s own making: his earlier delay in producing relevant documents has caused the hearing in November 2010 to be adjourned to last week.

10.While imprisonment should be a last resort, the court should pass a sentence which shows clearly that the course of justice should not be interfered with.  A deliberate breach of court orders should normally be met with imprisonment.

11.Having considered the whole circumstance, I find that a short period of imprisonment is appropriate.  Despite defence counsel’s submission, I do not consider it appropriate to suspend or postpone the sentence.

12.Accordingly, the sentence I will pass is a period of imprisonment of 21 days.  The defendant is so sentenced accordingly.

Mr T M Lee, instructed by Messrs David Y Y Fung & Co., for the Plaintiff

Mr James Tze, instructed by Messrs Christine M Koo & Ip, for the Defendant