Iss Eastpoint Properties Ltd v. Yuen Mei Wah

DCMP144/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 144 OF 2011

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BETWEEN

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

Date of Hearing: 26 May 2011

Date of Judgment: 26 May 2011

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J U D G M E N T

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1.This is an application for an order of committal against the Defendant on the ground that she had continued to make and cause annoyance and disturbance during the period from April 2008 to the date hereof at the premises known as Flat 5, 24th Floor, Block B, Tong Ming Court, 15 Tong Ming Street, Tseung Kwan O, Sai Kung, New Territories (“the Premises”) in breach of the order I have made on 16 January 2008.

2.I am satisfied that the Plaintiff has properly served the originating summons on the Defendant by way of personal service and yet the Defendant does not appear in today’s hearing.  In such circumstances, the court can proceed with the hearing despite the absence of the Defendant (see: Hong Kong Civil Procedure 2001, Volume 1, paragraph 52/6/4).

3.In order to obtain an order for committal, the Plaintiff must prove its case to the criminal standard, that is beyond reasonable doubt, that the Defendant was in breach of the order made by the court.

4.On 16 January 2008, I had made an order restraining the Defendant from causing any further nuisance at the Premises. Based on an affirmation made by one Madam Wai Chi-yin, the Property Manager of Tong Ming Court, I am satisfied that she had received a lot of complaints from the owners and the residents of Block B of Tong Ming Court (“the Building”) about the Defendant making and causing nuisance during the period from April 2008 to the date hereof at the Premises.  The nuisance included shouting and screaming indecent language, shouting and screaming loudly, and causing excessive noises at the Premises or within the Building, mostly at early hours in the morning and at such loudness and sound level that could be heard by other occupiers of the Building with alarm and discomfort.  The particulars of the complaints are all listed out in paragraph 7 of the Affirmation of Madam Wai.

5.As the Defendant had repeatedly failed to comply with the court order I made on 16 January 2008, I am satisfied that the court should make an order of committal against the Defendant.  However, as the court does not have the opportunity to listen to the Defendant’s case and explanation, I will not impose any punishment at this stage.  Instead, I will issue a warrant of arrest requiring the Chief Bailiff and his assistant and the Commissioner of the Correctional Services and the Commissioner of Police and each and every one of his officers in Hong Kong to arrest the Defendant so that she may be held in custody until such time as she may be brought before this court to answer for her contempt.

6.This is in line with the procedures as adopted by Deputy High Court Judge Chan in 律政司司長對邱志華, unreported, HCMP1907/2006, (decision on 27 February 2007) (see: paragraphs 19 and 20 of the judgment).

7.Further, as I do not have the opportunity to listen to the Defendant’s submission and defence, I will not impose any order of costs at this stage.  Hence, I order that the costs of today’s hearing be reserved.

8.I now listen to the party’s submission on the exact wordings of the order for committal and the warrant for committal.

Mr Victor K H Chiu, of Messrs Chan & Tsu, for the Plaintiff

Defendant, in person, absent