Shen Xing V.Li Jun

HCMP 362/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 362 OF 2014

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R E A S O N S  F O R  J U D G M E N T

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1.This is the plaintiff’s application to commit the defendant for contempt of court. It arises out of an action commenced by her in September 2013 (HCA 1680/2013) wherein the plaintiff alleges that the defendant has:

(a) trespassed the plaintiff’s premises;

(b) assaulted the plaintiff;

(c) threatened and harassed the plaintiff.

2.Further to commencing the action, the plaintiff applied for an injunction to enjoin the defendant (among other things) to:

(1) cause or permit harassment, nuisance or intimidation to the plaintiff;

(2) cause or permit trespass to specified real properties belonging to her (both here and in the Mainland);

(3) enter, remain at or come within a distance of 30 metres of:

(a) the said real properties;

(b) specified places of work of the plaintiff (both here and in the Mainland);

(4) approach or contact the plaintiff, whether directly or indirectly, and whether by telephone, facsimile, email, short message service, social networking tools or otherwise.

3.At the hearing of the plaintiff’s said injunction application on 13 September 2013, the defendant offered an undertaking to the above effect in lieu of injunction.  The offer was accepted by the plaintiff and the said undertaking was recorded in the order made on 13 September 2013.

4.In support of this application for contempt, the plaintiff has filed affirmation evidence to the effect that the defendant has breached his said undertaking in that on various occasions:

(a) in December 2013 and January 2014, the defendant called the plaintiff’s mobile telephone and spoke to her;

(b) in December 2013 and January and February 2014, the defendant sent messages to the plaintiff’s mobile telephone using short message service;

(c) in February 2014, the defendant, through the driver employed by him in Hong Kong, continued to send a message to the plaintiff’s mobile telephone.

5.The court documents relevant to, and for use at the hearing of, this application have been served on the defendant in accordance with the order dated 11 February 2014 for substituted service.  There is also evidence that the defendant’s solicitors in HCA 1680/2013 said they would contact the defendant for the purpose of informing him of this application. Despite the above, the defendant has not filed evidence to refute the plaintiff’s said affirmation evidence, nor has he attended the hearing of this application.

6.In view of the above matters, I am satisfied that the defendant must be aware of this application.  All the crucial procedural requirements have also been complied with.  This application should be permitted to proceed in his absence.

7.Further, in view of the evidence placed before me, I am satisfied beyond reasonable doubt that:

(1) the defendant was aware, and understood the effect, of his said undertaking;

(2) the defendant has breached his said undertaking by acting in the manner set out in para 4 above;

(3) because the defendant has engaged lawyers in Hong Kong to represent him up to at least the 13 September 2013 hearing (when he offered his said undertaking), he must have been properly advised of the law in Hong Kong relevant to the giving of his said undertaking and the consequences of its breach;

(4) by reason of sub-para (1) to (3) above, the defendant must therefore be in deliberate breach of his said undertaking.

8.Accordingly, I am satisfied that the defendant should be committed for contempt of court.

9.As regards the penalty to be imposed for the contempt, the plaintiff submits that the proper sentence should be 6 months’ imprisonment.

10.The evidence before me (both in this application and in HCA 1680/2013) shows that the defendant is a successful businessman in the Mainland.  The conduct which constituted the contempt, though intimidating to the plaintiff (who has been medically diagnosed to suffer from post-traumatic stress disorder because of similar conduct of the defendant in the past) is not the worst of its kind.  There was no face-to-face confrontation, nor was there the use of actual violence.  On the other hand, although only one express threat has been uttered by the defendant over the telephone (which could have been spontaneous), some of his verbal statements could be understood as intending to cause alarm to the plaintiff.

11.Taking the above matters into account, I consider the appropriate penalties should be:

(a) 6 months’ imprisonment but its execution should be suspended from 12 March 2014 to 11 March 2016 (both inclusive) unless within the said period the defendant commits any breach of his said undertaking (whereupon the plaintiff may apply to this court, or the court which deals with the said breach, for an order that the said suspension be lifted);

(b) a fine of $100,000 to be paid within 28 days from service of this order.

12.It is also appropriate for the defendant to pay indemnity costs to the plaintiff in view of the history leading to this application (set out above).

Mr David Chen, instructed by Haldanes, for the plaintiff

The defendant was not represented and did not appear