Shuchi Singh v. Anamika Chhawal and Another

HCMP 2410/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLLANEOUS PROCEEDINGS NO. 2410 OF 2014

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DECISION

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1.This Decision has to be read in conjunction with the Judgment delivered by this court on the same day and in this document, I shall adopt the abbreviations used in the Judgment. By the Judgment, I committed both Madam Chhawal and Tolani for contempt of the Order. I invited all the parties to make submissions on sanctions and costs and I subsequently received written and oral submissions from them.

2.After hearing the parties, I make the following orders on the Originating Summons:

(1)  for her contempt found, Madam Chhawal do stand committed to prison for a period of 21 days to be suspended for 24 months.

(2)  for his contempt found, Tolani do within 28 days from today pay into court a fine in the sum of HK$5,000 and in default of his so doing, he be committed to prison for 3 days.

(3)    Madam Chhawal and Tolani do pay Madam Singh 50% of her costs of this application on an indemnity basis in the ratio of 70:30. For the avoidance of doubt, out of the 50% of Madam Singh’s legal costs, Madam Chhawal do pay 70% and Tolani do pay 30% of such costs.

3.I now give my reasons for the foregoing orders I made as follows.

Sanctions for Contempt

4.In passing the suspended sentence on Madam Chhawal, I have taken into account the following matters:

(1)  She is a young lady who came to Hong Kong with a visa in 2008. She has no financial burden and she now makes about HK$13,500 per month in her business. She has not had any trouble with the law before. Her application for permanent residency in Hong Kong may be prejudiced in the event of an immediate custodial sentence.

(2)  She persisted in her breach of the Order despite the warning of the Deputy Judge at the Hearing in strong terms.

(3)    I do not accept that she was justified to wait until she afforded to have legal advice in November 2014 to comply with the Order given the clear warning of the Deputy Judge. I, however, accept that she committed the breach out of her ignorance rather than any other wilful intention with a view to her financial gain and/or causing further injury to Madam Singh.

(4)  She has at long last shown some remorse for her breach of the Order. She made apologies to Madam Singh in open court in her presence.

(5)  She purged the contempt in November 2014 albeit after a long delay.

5.As explained to Madam Chhawal, this court must act in the strong public interest in ensuring that the orders of the Hong Kong courts are not flouted. This is essential to the rule of law in Hong Kong and she accepts this.

6.Madam Chhawal was indeed very close to the prison gate but this court, having regard to all the circumstances and in particular her purge of the contempt and open apology to Madam Singh, is minded to give her maximum leniency and a suspended sentence should suffice to mark the strong disapproval of her breach of the Order.

7.Madam Chhawal in her written submissions addressed at great length about her conviction in protection female rights in India. She did so in a bid to explain why she abhors the conduct of the Unknown Man and all those persons who allegedly have assisted him to go scot free and avoid criminal prosecution. I am not impressed by her explanation. Whatever her view of the Alleged Assault is, she must also respect the rights of Madam Singh under the Order and must abide by the Order. She now accepts this without qualifications.

8.In regard to Tolani, as explained in my Judgment, his role in this application and indeed in the Action is passive and there is no doubt that Madam Chhawal is the main culprit. I am sympathetic with his situation. He further expressed his remorse for the breach. Though not accidental, his breach could not be said to be contumacious or wilful. I am of the view that a light fine would be adequate.

9.Tolani has explained to this court that his present salary is about HK$10,000 per month. He is a single man and he has to support his mother.

10.I set the fine at HK$5,000 in the circumstances. That should adequately bring home to Tolani the importance of complying with court orders.

Costs

11.Costs should follow the events. Indemnity costs are appropriate since Madam Chhawal and Tolani could have avoided these committal proceedings altogether if they had paid heed to the well-intentioned warning of the Deputy Judge.

12.However, I am of the view that the following matters should disentitle Madam Singh to a full recovery of her legal costs.

13.First and foremost, half of her complaints were not made out whilst those substantiated ones were straightforward and evidenced by documents.

14.Moreover, in the present case, the way that the personal service of the Order was carried out left much to be desired and it gave rise to unnecessary disputes. When litigants in person are at the receiving end of an injunction, legal practitioners should take particular care in the personal service of the injunction obtained including the inclusion of an appropriate penal notice so as to ensure effective enforcement of the same.

15.Looking at all the matters in the round, I allow only 50% of her legal costs to be recovered from Madam Chhawal and Tolani.

16.I accept that Tolani’s breach was still a breach calling for these proceedings to be eventually rectified by Madam Chhawal. Nevertheless, Madam Chhawal should shoulder the lion share of the blame for the breach of the Order in my judgment. Accordingly, I apportion their liability to pay the 50% costs of Madam Singh in the foregoing ratio to meet the justice of the present case.

17.Lastly, I thank Mr Kim for his commendable fairness and patience in this matter.  

Mr Minju Kim, instructed by Hart Giles, for the Applicant

The 1^st Respondent appeared in person

The 2^nd Respondent appeared in person