Fastway Technology Ltd v. Ngai Shing (HK) Products Manufactory Ltd
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DCCJ 3727/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 3727 OF 2010 ___________________ BETWEEN
___________________ DCMP 2577/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 2577 OF 2011 ___________________
___________________ Before: Her Honour Judge HC Wong in Chambers (open to the public) Dates of Hearing: 19 March 2012 Date of Decision: 28 March 2012 ___________________ DECISION ___________________ 1.The plaintiff applies for leave to appeal against my order of 14 July 2011 out of time and further requested me to recuse from further conduct of DCCJ 3727 of 2010 and DCMP 2577 of 2011. Background 2.The plaintiff claimed against the defendant for breach of a manufacturing contract dated 5 August 2009 and the return of moulds for the production of plastic parts in the action. On 30 November 2010, the plaintiff went before Deputy Judge Jack Wong and obtained an interlocutory injunction against the defendant for the return of a number of moulds. The defendant was absent on that occasion. 3.On 5 May 2011, the plaintiff took out an inter parte summons for an injunction order for the handover of the moulds and equipments set out in the schedule to the agreement between the parties of 5 August 2009 and for judgment on liability to be entered against the defendant and damages for breach of contract to be assessed. 4.At the hearing on 27 May 2011, the defendant’s legal representative informed the court it was abandoning its defence and counterclaim to the action, therefore, judgment on liability was entered in default of defence. The defendant was ordered to handover to the plaintiff the moulds and other equipments set out in schedules 1 and 2 annexed to the order of Deputy Judge J Wong of 30 November 2010 within 4 days, with damages for breach of contract to be assessed with interests and costs to the plaintiff. 5.On 2 June 2011, the plaintiff took out a summons requesting the defendant to show cause as to why it should not be adjudged in contempt of court for failure to comply with the court order of 27 May 2011. 6.At the 7 June 2011 hearing, the defendant through his then solicitor Mr Victor Chan of Messrs Tang Wong & Cheung asked for leave to file an affirmation and gave an undertaking that the defendant would make delivery of the moulds to the plaintiff’s designated address within 14 days, should the plaintiff failed to name an address for delivery, the defendant would deliver the moulds to a warehouse within 14 days. The plaintiff’s application was adjourned to 14 July 2011. 7.At the adjourned hearing on 14 July 2011, the defendant appeared in person and informed the court that he had completed the mould delivery. He deposed in his affirmation that he had been attempting to handover the 63 sets of moulds to the plaintiff but the plaintiff had failed to take delivery. That the plaintiff had visited his factory in Shenzhen on 30 May 2011 and inspected the moulds with a Mr Ma who was to take the moulds to his factory in Shenzhen. Mr Rund, the director of the plaintiff, informed the Court at the hearing Mr Ma had subsequently refused to assist the plaintiff. Because the plaintiff had failed to name an address for delivery, the defendant had to deliver the moulds to a warehouse after the plaintiff failed to agree to or name a warehouse in Shenzhen for the delivery to be effected. The defendant had obtained a surveyor’s report on the moulds delivered to the warehouse; it was shown to Mr Rund in court at the 14 July 2011 hearing. On the basis of the defendant’s compliance of the order, leave to cite the defendant for contempt of court was discharged with no orders as to costs. 8.On 29 August 2011, the plaintiff took out an ex parte summons for leave to apply for an order of committal against the defendant for contempt of court and for an injunction to enjoin the defendant and its director Wong Yu Shing to transfer their assets in Hong Kong and in the PRC until damages are assessed and awarded in the action. The application was heard on 4 October 2011. At the hearing, the defendant through his then solicitor undertook to deliver the moulds to an address to be named by the plaintiff from the Shenzhen warehouse or deliver a letter of authorisation to the plaintiff to remove the moulds from the Shenzhen warehouse within 7 days of the order. The defendant was further ordered to pay the warehouse charges up to 11 October 2011. The application for injunction was adjourned sine die and costs of the application was awarded to the plaintiff. 9.At the same hearing, the plaintiff was granted leave to apply for an order of committal against the defendant for contempt of court with leave to the plaintiff to file an affirmation in support and the defendant to file an affirmation in opposition. 10.On 12 January 2012, the application was adjourned to a date to be fixed. The plaintiff was given leave to file and serve a supplemental affirmation in support and the defendant to file and serve an affirmation in opposition. The adjourned hearing has yet to take place. The application for leave to appeal out of time of my refusal to commit the defendant for contempt on 14 July 2011 11.It is clear from the background set out above that at the 14 July 2011 hearing the defendant had already arranged to handover the moulds to the plaintiff. The defendant had also obtained a surveyor’s report on the moulds he had delivered to a warehouse in Shenzhen before the hearing. Therefore, the court’s order had been complied with on 14 July 2011. It remained for the plaintiff to take delivery of the moulds at the Shenzhen warehouse. No effect would be served to commit the defendant even if the defendant had been in contempt and failed to comply with the court order previously, it had been purged by the compliance of the order. On that basis, the application to commit the defendant was refused. 12.The District Court is conferred the same powers of a judge of the Court of First Instance to (a) punish for disobedience of a judgment or order of the Court; or (b) punish for breach of undertaking under s 48B of the District Court Ordinance Cap 336. In reaching a decision whether to punish the defendant for contempt of court, the burden is on the plaintiff to adduce evidence of contempt. The defendant’s affirmations in opposition and the plaintiff’s affirmations showed the defendant had made several attempts to handover the moulds after the 27 May 2011 hearing, but the plaintiff had repeatedly failed to take delivery of the moulds. When the defendant tried to deliver to Mr Ma’s (the plaintiff’s former employee) factory, he was told by Mr Ma there was no room to accommodate all the moulds. The defendant claimed at the 28 June 2011 hearing that when he attempted to deliver the moulds to the plaintiff in early June 2011, the plaintiff refused to take delivery. At the hearing, the defendant gave a personal undertaking to the court to deliver the moulds to an address named by the plaintiff within 7 days or to a warehouse to be agreed by both parties, failing agreement, to deliver to a warehouse chosen by the defendant within 14 days. 13.At the 14 July 2011 hearing, the defendant confirmed he had delivered the moulds to a warehouse in Shenzhen and obtained a surveyor’s report on the moulds delivered to the warehouse. On the basis of the surveyor’s report which was shown to the plaintiff and on the defendant’s confirmation, it was clear the defendant had fulfilled his undertaking to the court. The plaintiff raised no objection at the hearing other than informing the court he would check the moulds at the warehouse. 14.I found no intentional or wilful action on the part of the defendant to disobey the court order or breach the undertaking to court. I also found the plaintiff had suffered no prejudice, his failure to take delivery was because he was not able to find a factory in China to take the moulds. On that basis the application was discharged. 15.Subsequently, on 29 August 2011 the plaintiff took out an ex parte application to commit the defendant for contempt of court on the basis that he was not able to remove the moulds from the Shenzhen warehouse. The application was heard on 4 October 2011, the defendant admitted he had made a demand on the plaintiff to pay certain charges and the plaintiff had refused to do so. At the hearing, the defendant was ordered to pay the warehouse charges and give an authorisation to the plaintiff to remove the moulds from the warehouse. Directions were given for the second application to cite the defendant for contempt at that hearing. Those proceedings have not been concluded. 16.I find the plaintiff has shown no merits in his application for leave to appeal against my decision to discharge the application for citing the defendant for contempt of court on 14 July 2011. No useful purpose would be served to commit the defendant’s director in prison if he had complied with his undertaking to the court. Lord Diplock stressed the need for the contempt jurisdiction to be used with caution, he held in the case of Attorney General v Times Newspapers Ltd [1974] AC at p 311-2:
17.On the plaintiff’s application to recuse myself from further hearing of this action and the second contempt proceedings. I find the plaintiff have been putting pressure on the defendant throughout these proceedings and pressing the court in his attempt to punish the defendant. The court is not a debt collecting agency and the court’s power to punish should not be employed in the assistance of abusive conduct. It is an abuse of court process for litigants to employ pressurising tactics on other parties in the guise of contempt proceedings. 18.On the other hand, I believe the plaintiff considered I am biased against him. He asserted justice has not been seen to be done. Though I do not agree with him, I am happy to step aside and let another judge conduct these proceedings in future. 19.Leave to appeal is refused with costs against the Plaintiff to be taxed if not agreed. No order as to costs on the plaintiff’s application for the future conduct of these proceedings to be handled by another judge.
The plaintiff was represented by Mr Rund, Richael Michael The defendant was represented by Mr Wong Yu Shing | ||||||||||||||||||||||||||
Further hearings and rulings under DCCJ 3727/2010