LAU YEE CHING v. WONG TAK KWONG AND OTHERS

cacv 385/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 385 of 2005

(on appeal from HCCW NO. 807 of 2004)

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J U D G M E N T

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Hon Rogers VP:

1.  This is an appeal in relation to a matter of costs.  It is brought with leave of the court below.  The judge gave leave to appeal on the question of costs alone and extended the respondent’s time for appealing.

2.  The matter before the judge was an application for committal for contempt.  It was said that the respondents had breached their undertakings to the court in three respects.  The judge found that the contempt was proved.

3.  Although Mr Allan, who has appeared on behalf of the respondents today, has sought to minimise the effect of the contempt and the seriousness of it, nevertheless, a contempt is a contempt and I am not disposed to say that it was merely technical or otherwise a breach of an order which should be overlooked.

4.  When the judge gave judgment, she considered that the respondents should not be committed to prison but she imposed a fine of $10,000 on the 1^st respondent and $5,000 on the 2^nd respondent and ordered the respondents to pay the petitioner’s costs of the application on an indemnity basis, and she did that as one and the same order.

5.  I have to say that it is, in my experience at any rate, a normal order on contempt proceedings that costs are ordered on an indemnity basis.  It has to be borne in mind that the complainant in committal proceedings stands to gain very little other than the enforcement of the order which is the subject of the committal proceedings; he stands to gain no damages because of the breach of that order or any other material benefit.

6.  Hence, the bringing of a contempt proceedings is, in itself, an expensive exercise but it is for the benefit of the court because the court’s orders are enforced and adhered to.  This is a matter which the courts naturally bear in mind when coming to a conclusion as to what penalty to impose and the courts are alive to the fact that an order for indemnity costs is, in itself, a penalty.  In those circumstances, the court will adjust the other penalties that are imposed to take that into account and, in one respect, that is what has happened here.  It has given rise to this situation that has enabled Mr Allan to say, “Well, if you compare the $10,000 for the 1^st respondent and the $5,000 for the 2^nd respondent and compare that to the $700,000-odd which the bill of costs has apparently come to on an indemnity basis, the matter is disproportionate.”  Well, it may look disproportionate but what one has to bear in mind is that it is a global penalty, the indemnity costs being part of the penalty which is imposed and imposed, in my view, for sound reasons.

7.  The judge gave leave to appeal but nothing further stems from that and, in my view, I see no reason for this court to interfere in any way with the order made by the judge.  I would therefore dismiss this appeal.

Hon Woo VP:

8.  I agree.

Hon Le Pichon JA:

9.  I agree.