Chan Chee Wah and Another v. Chan Man Moon

DCMP 2063/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2063 OF 2013

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REASONS FOR DECISION

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1.This is an application by the plaintiffs to commit the defendant to prison and/or fine for contempt of court.

Background

2.This is a very sad case of how drug addiction would destroy a family.

3.After years of being harassed by their drug addict son for money to fuel his addiction, the plaintiffs in this case, who are the aged parents of the defendant, finally made the painful decision to apply for legal aid with a view to take out an injunction to prohibit the defendant from harassing or causing nuisance and/or annoyance to them.  Subsequently, solicitors and counsel were assigned to them to apply for injunctive reliefs.

4.On 30 May 2013, this court granted an order of interlocutory injunction restraining the defendant, a known drug addict, from harassing and causing nuisance to the plaintiffs, who are 77 and 68 years old respectively (“the Order”). 

5.The terms of the Order specifically restrained the defendant from:-

(1) causing or permitting harassment, nuisance, annoyance, discomfort and/or excessive noise to the 1^st and/or 2^nd plaintiffs;

(2) causing or permitting trespass to properties belonging to the 1^st and/or 2^nd plaintiffs;

(3) entering or remaining at or coming within a distance of 30 metre radius from the public housing unit the 1^st and 2^nd plaintiffs reside at Tai Hing Estate in Tuen Mun (“the plaintiffs’ residence”) and the wet market of Tai Hing Estate;

(4) interfering with the 1^st and 2^nd plaintiffs’ use, occupation of enjoyment of the plaintiffs’ residence;

(5) approaching or contacting the 1^st and 2^nd plaintiffs, whether directly or indirectly, whether by telephone, mobile phones or otherwise.

6.The defendant has personally attended the hearing for the inter-partes summons on 30 May 2013 where he has been specifically warned by this court of the dire consequence of disobeying the Order granted by the court on that day, including the possibility of being committed to prison for contempt.

7.As a matter of caution, I have ordered the plaintiffs’ solicitors to translate the Order, endorsed with a panel notice, into the Chinese language and serve a copy of that, together with the original copy of the Order (in English), on the defendant at his residential address also situated in Tuen Mun, albeit at a different public housing estate.

8.The above the plaintiffs’ solicitors have done on 31 May 2013 by way of personal service.  An affirmation of service by the clerk of the plaintiffs solicitors filed on 8 June 2013 has verified this.

Breaches of the Order

9.Despite the very clear terms of the Order, starting only a few days after the Order had been served on him, on 4 June 2013, the defendant started to call up his mother, the 2^nd plaintiff in this case, who is the wife of the 1^st plaintiff, to demand for money.

10.Such phone calls made by the defendant continued on no less than 10 separate occasions from 4 June 2013 until the 2^nd plaintiff gave up using her mobile phone on 28 June 2013 due to the persistent harassment.  According to the 2^nd plaintiff’s mobile phone record, the defendant used different telephone numbers to call her during those occasions.  On each of those occasions, the defendant had demanded money from the 2^nd plaintiff but the 2nd plaintiff rejected such requests.

11.Besides calling the 2^nd plaintiff on the telephone, the defendant also turned up uninvited on 5 June 2013 at the restaurant where the 2^nd plaintiff and the 1^st plaintiff were having their morning breakfast on 5 June 2013.  On that occasion, the defendant demanded HK$170 from the 2^nd plaintiff allegedly as travelling expenses to the Shek Kwu Chau Treatment and Rehabilitation Centre.  In order to drive him away, the 2^nd plaintiff had no alternative but to give him that amount of money.

12.On 6 June 2013, the defendant, besides calling the 2^nd plaintiff twice in the early morning on the telephone, turned up at the entrance of the public housing building she and her husband were staying, which is well within the 30 metre radius of the plaintiffs’ residence.  They were on their way to have their breakfast in a restaurant.  Again, the defendant demanded money from them. They refused and called the Police.  The defendant fled before the Police arrived.

13.Such patterns of behaviour of the defendant continued by phone calls on the mobile phone of the 1^st plaintiff (after the 2^nd plaintiff had ceased using her mobile phone), text messages and whatsapp messages on a daily basis, up to 4 times a day, each time asking for money from them, up to the time when the plaintiffs filed their affirmations in support of the present application on 23 July 2013.  Further, the defendant had turned up at the plaintiffs’ residence shouting loudly outside the door at least twice on 1^st and 2^nd July 2013 respectively.  He also was seen by the plaintiffs sitting around the bench outside of the building where they were living, even though it was outside the 30 metre radius imposed by the Order.

14.All the above incidents were verified by the affirmations of the 1^st and 2^nd plaintiff filed on 23 July 2013, together with documentary evidence like mobile phone records, photos and images of the texted and whatsapp messages.

15.The defendant has not filed any evidence to rebut any of the above evidence or has he seriously disputed any of those incidents during the hearing.

Defendant’s contempt

16.Based on the evidence filed by the plaintiffs in the contempt proceedings, I am satisfied beyond reasonable doubt that that there were repeated and deliberate acts on the part of the defendant to flout the court’s order.  In fact, in one of the texted messages sent by the defendant to his parents, he admitted having caused nuisance to the plaintiffs and challenged them to ask the court to arrest him for disobeying the Order.  I am satisfied that the applicants have proved to the criminal standard both the acts claimed to constitute the contempt and the alleged contemnor’s requisite state of mind. 

17.I am aware that the applicants do not have to prove that the contemnor’s conduct was contumacious, ie that he directly intends to disobey the Order.  It is sufficient to prove that (1) the contemnor knew the facts which are said to make his act or omission a contempt; and (2) such act was not accidental: see paras 52/1/16 & 52/9/2 of Hong Kong Civil Procedure 2013.

18.I have carefully considered the matters stated by the plaintiffs in their affirmations in support of the contempt proceedings, including the evidence filed at the stage when leave was sought for commencing the contempt proceedings. 

19.I am satisfied beyond reasonable doubt that the defendant had, between 4 June 2013 and 23 July 2013, on numerous occasions:-

(a) called the plaintiffs’ home and mobile phone numbers demanding money from them;

(b) sent text messages to the plaintiffs’ mobile phones asking for money;

(c) harassing the plaintiffs by asking them for money by appearing at the restaurant where they had their breakfast;

(d) shouted and appeared at the door of the plaintiffs’ residence demanding the plaintiffs to give him money;

(e) ambushed the plaintiffs within 30 metre radius of the residence/building of the plaintiffs and asked them for money.     

20.The defendant’s deliberate breaches of the Order can be supported by the following documentary evidence which I accept as true and accurate:-

(a) the 2^nd plaintiff’s mobile phone records which show that during the aforementioned period, the 2^nd plaintiff received numerous phone calls from the defendant;

(b) text messages sent by the defendant to the plaintiffs’ mobile phones causing harassment to the plaintiffs;

(c) various slips and police report numbers showing that the plaintiffs had reported the matters to the Police when the defendant caused harassment/nuisance to the plaintiffs at their residence and at the restaurant where they had their breakfast;

(d) photos taken by the 2^nd plaintiff showing the defendant: (1) turned up suddenly and uninvited at the restaurant where the plaintiffs had their breakfast; (2) outside the front door at the plaintiffs’ residence; and (3) within 30 metre radius of the plaintiffs’ residence.

Defendant’s state of mind

21.As said, at the hearing of the interlocutory injunction on 30 May 2013, this court had explained clearly the contents of the Order to the defendant in the local dialect.  He acknowledged to the court that he fully understood the contents of the Order. He has also been reminded by the court of the serious consequence of not obeying the Order, including the possibility of going to prison.  The translated Chinese version of the Order, together with a bilingual penal notice, has been personally served on him the next day.  Thus, there is no question of the defendant not knowing what were the acts that he was prohibited from doing under the Order and the consequence of breaching the Order.

22.I am satisfied that given the repeated and deliberate nature of the acts, such conduct of the defendant are not mere accidents.  The text message sent to the 2^nd plaintiff challenging her to ask the court to have him arrested show that the defendant clearly knew what he was doing. 

23.In the aforesaid circumstances, I am satisfied beyond reasonable doubt that the defendant possessed the requisite state of mind when committing those acts when breaching the Order.

Appropriate punishment

24.It must be an extremely painful decision for any parent to apply to court to prohibit their own son to cause harassment and nuisance to them, let alone to apply to court to commit their own flesh and blood to prison for contempt of court.  I am sure that they did so as a last resort when every means of trying to help their son to get rid of his drug addition had failed. 

25.However, this is no longer a family matter between the plaintiffs and the defendant.  What the court is now dealing with is the defendant’s repeated and deliberate flouting of the Order made against him.  Save for the first few days after the Order was made, the defendant has basically ignored the terms of the Order and committed almost each and every single act he was prohibited to do under the Order.  The court will not tolerate such deliberate, repeated and flagrant breaches of a court order.

26.I consider that a fine will not be appropriate as punishment in this case for 2 reasons.  First, the defendant does not have the financial means to pay such fine and in fact money was the very reason why he had caused the harassment and nuisance to his parents in the first place.  Second, it is not sufficient to reflect the gravity of the deliberate acts committed by the defendant.

27.I am of the view that an immediate custodial term of imprisonment will be appropriate as punishment.

28.As to the appropriate length of the imprisonment, I have taken into account of the sentences passed by Deputy Judge Herbert Au-Yeung (as he then was) in the case of Kinform Ltd v Tsui Loi (no 2) [2011] 5 HKLRD 80 where an immediate custodial sentence was passed to the defendants in a civil case who gave false statements in pleadings and witness statements verified by statement of truth regarding a letter of complaint allegedly sent to the plaintiff.  In sentencing the contemnors, the learned judge made reference to perjury cases and sentenced the defendants in that case to 5 and 6 months immediate imprisonment.

29.In my judgment, while the defendant’s breaches could not be treated in the same category as a person making false statements in a pleadings and/or witness statement or someone who has committed perjury, nonetheless, they are of a repeated, deliberate and blatant nature over a long period of time.

30.I consider that an immediate term of imprisonment of 4 months will be appropriate.  However, having taken into account of the defendant’s admission of responsibility during the hearing, I am prepared to reduce the sentence to one of 3 months’ imprisonment only.  I therefore sentence the defendant to 3 months imprisonment for the contempt of court.

Miss Shannon Leung, instructed by Cheung & Choy, for the plaintiffs

The defendant appeared in person