Sin Chan Kam 對 the Incorporated Owners of Wai Sun Building

On 23 September 2026, the Court of Appeal (VP Kwun, JA Lam, JA Chow) handed down reasons in CACV 493/2025, Sin Chan Kam v The Incorporated Owners of Wai Sun Building, dismissing the IO's appeal against a finding of contempt of court. Mr Sin, who appeared in person throughout, was awarded $8,000 in costs.

The dispute concerns a decade-long saga over water seepage at Shop D on the ground floor of Wai Sun Building in Wan Chai. Mr Sin, the owner of Shop D, obtained a mandatory injunction against the IO in 2019 (LDBM 43/2016) requiring the IO to carry out all necessary repair and remedial works to stop water seepage at the ceiling of Shop D and its toilets within three months. After multiple extensions, the deadline was set at 29 August 2022.

Despite the IO spending over $1.6 million on works and over $600,000 on its expert Mr Yeung, the seepage continued. Mr Sin applied to commit the IO for contempt. After a five-day hearing, Deputy Judge Li at the Lands Tribunal found the IO guilty, fined it $300,000, and ordered costs on an indemnity basis summarily assessed at $100,000. The IO's appeal was dismissed, with Mr Ng Tsun-yin appearing as counsel for the IO.

The Court held that:

(1) Contempt of court is a common law offence developed through case law, not statute. The rigid distinction between "element of the offence" and "defence" does not apply with the same force as in statutory offences (§44).

(2) When the contemnor disputes ability to perform, the applicant bears the persuasive burden to prove ability beyond reasonable doubt. The contemnor bears an evidential burden to raise the issue, but this is not unfair because the persuasive burden remains on the applicant throughout (§§47-48).

(3) In this case, the IO never actually raised inability to perform. Its case was that it had completed the works under its own (incorrect) interpretation of the injunction. The IO never said it was impossible to stop the seepage, only that further investigation would require substantial resources. The judge was therefore not required to address ability to perform (§§49-50).

The second ground of appeal, alleging inadequate reasons, fell away as it depended on the first.

The appeal was dismissed. The IO was ordered to pay Mr Sin's costs of the appeal and the application for leave to appeal, summarily assessed at $8,000 (40 hours at $200/hour for self-representation).

Why it matters

Practitioners should note that in contempt proceedings for non-compliance with a mandatory injunction, the burden of proof regarding ability to perform only crystallises when the contemnor actually disputes it. If the contemnor's case is simply that it has done what was required under its own interpretation, the applicant need not separately prove ability. Contemnors who wish to rely on impossibility must put it in issue, and once they do, they bear an evidential burden while the applicant retains the persuasive burden.