SECRETARY FOR JUSTICE v. YUEN OI YEE LISA

HCMP2390/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2390 OF 2008

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DECISION ON PENALTY

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1.  By my Judgment delivered on 25 October 2010, the respondent was found to be in contempt of court for breaches of two court orders and breach of undertaking to the court and interferences with administration of justice. The inferences with administration of justice take the form of: (i) sending or copying letters and documents to judges and officers of the court in insulting, abusive and offensive, ridiculing and threatening language and in large quantity and volume; (ii) making insulting, abusive, offensive, ridiculing or harassing telephone calls to judge’s clerk; (iii) employing deceptive and misleading means in seeking to commence proceedings in court; (iv) abusing the process of the court by using court proceedings for an improper, malicious and ulterior motive; and (v) using insulting, abusive or offensive language against a judge in court document.

2.  The respondent was committed for her contempt save in relation to the breach of the order dated 8 August 2007.  This is because the order was not endorsed with a penal notice and there is no evidence to show that the respondent was aware of the consequences when she committed the breach.  Hence, giving her the benefit of the doubt, no penalty will be imposed for this breach.

The respondent’s submissions

3.  The respondent addressed the court on the penalty to be imposed for the contempt.  She stressed she did not breach the orders and undertaking deliberately.  She said she had tried to follow strictly the injunction orders, and since she was found to be in breach, it must be because she had not understood the orders.  It was therefore a mistake on her part, and not a deliberate flouting of the orders. 

4.  Next, the respondent asked the court to consider the risk of her re-offending.  She claimed that as soon as she was told the orders prohibit her from making phone calls to Lam J’s clerk, she had ceased doing so.  She accepted she had continued to send or copy letters and documents to Lam J even after the commencement of these committal proceedings.  She explained it was because she had to have guidance from the Judge whether her intended actions fall within the scope of the Restricted Proceedings Order (RPO) and Restricted Applications Order (RAO) made against her and so that these documents could be annexed to or used in her future applications for RPO or RAO leave.  She said she could undertake not to send or copy letters and documents to Lam J, especially if this court would vary the RPO and RAO against her by having another judge to replace Lam J as the Designated Judge.

5.  The respondent said the RPO and RAO against her was the source of all problems.  These orders, she said, infringed her human right of access to court and made her a victim.   The respondent said if Lam J would cease to be the Designated Judge to deal with her RPO and RAO leave applications, she would not have to bother Lam J by sending or copying documents to him.  She therefore asked this court to vary the RPO and RAO against her.

6.  About the letters, documents and phone calls to judges and officers of the court, the respondent said she was just expressing her genuine feelings.  She explained she came under stress and further felt aggrieved by the police arrest in connection with her commencement of HCA189/2007.  As to the language she had used, she considered it is a matter of opinion.  Personally she did not think there was a problem for she was just being funny and humorous.  But if judges were offended by what she wrote and said, she would apologise.

7.  The respondent asked the court to pass a suspended sentence on her so as to test if she would refrain from sending or copying letters and documents to Lam J and his clerk.  She referred to Order 52 rule 7 of Rules of the High Court, Cap.4A and asked the court to suspend the committal order.  Alternatively, she asked to be discharged pursuant to Order 52 rule 8 of Rules of the High Court.

8.  As a further alternative, the respondent sought a stay of the committal order pending her appeal against the Judgment finding her guilty of contempt. 

Relevant principles

9.  The court has a wide discretion as to the sanction to be imposed for contempt of court.  Sanction for contempt ranges from a fine to a term of imprisonment. 

10.  In civil contempt, which covers breach of court order and undertaking to court, the primary concern in sentencing is to demonstrate to litigants that orders of the court are to be obeyed: Abu Dhabi National Tanker Co v Lam Ming Chi [1998] 4 HKC 320 at 336E.  In modern times, imprisonment is regarded as a sanction of last resort.  However, where there has been deliberate and repeated breach of court orders and undertaking, a term of imprisonment is appropriate:  Excel Noble Development Ltd v. Wah Nam Group Ltd [2001] 4 HKC 148, at 162; Oriental Daily publisher Ltd v. Ma Chiu Sing [2009] 2 HKLRD 558; and Citybase Property Management Ltd v. Kam Kyun Tak (No.2) [2003] 2 HKC 108.  Further in cases of deliberate breaches of orders, the court has to take into account public interest in the administration of justice: Citybase Property Management Ltd v. Kam Kyun Tak (No.2) at para.9                 

11.  In criminal contempt, which involves interference with the administration of justice, a term of imprisonment is generally called for: see R v. Montgomery [1995] 2 All ER 28, at 32j. This is particularly the case where the interferences are grave and contumelious and contumacious: see for example Secretary for Justice v. The Oriental Press group [1998] 2 HKLRD 293, at 172-176 and Secretary for Justice v. Choy Bing Wing [2005] 4 HKC 416 at 445-450.   

12.  In considering the penalty to be imposed, the court will have regard to the facts of the case.  The acts of contempt, its nature and volume, the circumstances in which the contempt is committed as well as the gravity of the interference with the due administration of justice are the relevant considerations.

Breaches of court orders and undertaking to court

13.  I now turn to the circumstances of the present case.  In respect of the breaches of court order and undertaking, they are not single incident of breach, but a continuous series of breach.  There were five incidents of breach of the undertaking and 76 incidents of breach of the Order dated 14 April 2008.  It is a flagrant disregard of court order and her own undertaking.

14.  It is also important to note that prior to the hearing on 3 December 2007and 14 April 2008, the court had repeatedly told and warned the respondent to desist from sending or copying letters and documents and making telephone calls to judges and their clerks: see the judgments dated 8 August 2007 (at paras.47 and 51) and 27 November 2007 at para.31) in HCA2107/2006. 

15.  The respondent claims to have followed the court orders faithfully and the breaches are the result of her not understanding the terms; hence it is not a case of deliberate flouting of the order and undertaking, but a case of mistake.  This is untenable.  The language of the order is simple and plain.  The undertaking was offered by her.  The order and the undertaking were preceded or accompanied by the judgments dated 27 November 2007 and 14 April 2008, explaining in unambiguous terms the activities that she should refrain from.  There were also several prior warnings from the court.  There is no room for any mistake or misunderstanding as to what were prohibited by the undertaking and the order. 

16.  Additionally, in her letter dated 16 June 2008 copied to the clerk to Lam J, the respondent said that the order dated 14 April 2008 “has no substantial meaning or restrictions to me at all but in fact, it only encourages me to play more and more challenges against Justice Lam in future.” Her intention and reason for the breaches of the order cannot be plainer.  She was determined to defy the court order.

17.  Her claims during mitigation that she had to write to Lam J (through his clerk) to obtain guidance on whether litigations she intended to bring fall within the scope of RPO and RAO against her, and so that she could annex or exhibit her letters to her future applications for RPO or RAO leave are equally untenable.  It is no part of a judge’s function and duty to give advice and guidance, still less legal advice, to litigants.  Being the Designated Judge to deal with the respondent’s RPO and RAO leave applications, Lam J will rule on applications that are properly made.  This had already been pointed out to the respondent by Lam J.  There is also no logic in sending to Lam J letters and documents that will be used in coming RPO or RAO leave applications.  The truth of the matter is the respondent was using the train of letters and documents sent or copied to Lam J as her protestations against the RPO and RAO and other adverse orders made against her and as her means of vexing the Judge.

18.  The respondent’s breaches, in the circumstances, are intentional, deliberate, contumacious and contumelious.  Given her repeated and deliberate breach, a term of imprisonment is appropriate and necessary.  For each of the breach of the undertaking and the breach of the 14 April 2008 Order, I impose a term of one month imprisonment.

19.  The respondent asks this court to pass a suspended sentence.  The power of the court to suspend a sentence of imprisonment in criminal proceedings does not apply to the committal for contempt of court: Morris v. Crown Office [1970] 2 QB 114, 124, 125.  Under Order 52 rule 7 of Rules of the High Court, however, there is power to suspend an order for committal.  The court may direct the execution of an order of committal be suspended for such period on such terms or conditions as it may specify.  It has been said that the decision whether to suspend will depend on whether the court’s objective is primarily coercion or punishment: Arlidge, Eady & Smith on Contempt (3^rd edition) para.14-46.  Suspension of the committal order will be appropriate where the objective is to secure compliance with a court order or to allow the contemnor a period of time within which to purge the contempt.        

20.  The undertaking and the order in question are prohibitory in nature.  As the respondent acknowledged, the order is an injunction order whereas the undertaking was given in lieu of an injunction.  With full knowledge of the consequences of breach, the respondent persisted and indulged in doing exactly what was prohibited by the order and the undertaking.  As noted above, the respondent’s breaches are intentional, contumacious and contumelious.  The application for committal also has not deferred her from continuing with the breaches.  She continues to send and copy huge quantity of letters and documents to Lam J and his clerk and other judges and judges’ clerks.  In the premises, there must be serious doubt as to the genuineness and sincerity of the respondent’s statement made in mitigation that she would in future refrain from sending and copying letters and documents to Lam J.  There is also no reason to believe that suspending the committal order will bring about due compliance with the order and observance of her undertaking.  I do not accept this is a proper case for suspending the committal order.

Using insulting, abusive and offensive languages

21.  Turning to the several interferences with the due administration of justice, I will deal firstly with the three that involve the use of insulting, abusive and offensive language against judges in letters, court documents and telephone voice recordings.  There are a total of 39 such letters and affirmations, one notice of appeal and five telephone messages.  They spanned over a long period, from 3 September 2007 to 30 September 2008.  It was a long and continuous process of abuse.  As noted above, during this period, the respondent had been warned by Lam J about these letters, documents and phone calls in the judgments dated 27 November 2007 and 14 April 2008.               

22.  The respondent attempted to lessen the gravity of her wrong by saying it is a matter of opinion and that she was just trying to be funny and humorous.  This is a thin excuse.  The language she had employed is, by any standard, scurrilous, abusive and vicious.  The respondent also said she was under considerable stress as a result of her police arrest. This would only explain letters she wrote around the time of the arrest, but not the letters, documents and phone calls that went considerably before and after her arrest. 

23.  The respondent had been involved with litigations long before 2007 and has always been unrepresented.  She is an educated person and is not entirely ignorant about legal matters and court procedure, as illustrated by her ability to cite the relevant Rules of the High Court in her submission on sentence.  She knew what she was doing when she carried out the activities complained of.  The purpose, as I have found, is to scandalise and victimise judges who had made decisions against her and to improperly influence the judges in their conduct of matters relating to her.  This is not a case of a litigant, being overborne by the stress and burden of litigation, exhibits an outburst of emotion or has a moment of exasperation. 

24.  The respondent said if judges were offended, she would apologise.  This is neither an unreserved nor genuine apology.  The respondent’s submissions on sentence demonstrate a complete lack of remorse. There is no sincere attempt to purge her contempt.

25.  I had said this in my judgment delivered on 25 October 2010, but it is a point of importance that I will reiterate it here:  The court’s power to punish for contempt is not to protect the dignity of individual judges, but to uphold the integrity of the administration of justice and ultimately the rule of law.  It would be a mistake for the respondent to think that this application for contempt was brought because individual judges felt offended.  As the court had highlighted in Secretary for Justice v. Choy Bing Wing, op cit, at p.449G, the administration of justice, if it is to function effectively and properly, must be able to protect itself from abuses and attacks launched against it of the kind committed by the respondent.

26.  For the three offences of interference with the administration of justice that involve the use of insulting, abusive and offensive language against judges in letters, court documents and telephone calls, an immediate prison term is called for.  I impose a term of two months on each of them.

Employing deceptive and misleading means to commence proceedings and abuse of process

27.  Coming to the remaining two offences of interference with administration of justice, they consist of the employment of deceptive and misleading means to commence proceedings and an abuse of the court process by seeking to commence the proceedings for an improper, malicious and ulterior purpose.  They both relate to the attempt to commence the bankruptcy proceedings in HCB9860/2007.  

28.  These are very grave contempt.  The gravamen lies in the fact that there was an attempt to invoke the court process fraudulently and for an improper and malicious purpose.   On the respondent’s own admissions, she embarked on a premeditated and calculated course of knowingly putting forward a false and fictitious claim as an act of revenge against Miranda Lam and with a view to causing financial harm to her.  What she did is a serious threat to the due administration of justice.  It is an aggravating feature that, when her attempt to commence the bankruptcy proceedings failed, she nonetheless proceeded to inform Miss Lam’s banks about the bankruptcy petition when she knew full well that the petition had not yet been properly issued.  Any litigant who engages in abuse of the court process of the kind can expect to receive nothing short of an immediate custodial term.  

29.  On the two offences of interfering with the administration of justice by employing deceptive and misleading means to commence proceedings and by seeking to commence proceedings with an improper, malicious and ulterior purpose, I impose a term of two months on each of them.

Total sentence

30.  As the respondent is being sentenced on a total of seven contempt, the court must have regard to the principle of totality of sentence: Oriental Daily Publisher Ltd v. Ma Chiu Sing, op cit.  In addition, I will observe that for a litigant like the respondent, the greatest part of the punishment is the fact of being imprisoned for contempt; and it is this, not a lengthy term of imprisonment, that she has to live with.  I do not overlook the importance of the general deterrent aspect of sentencing in cases of contempt.  I however consider that the sentiments expressed in this judgment and other authorities would have brought home to ordinary litigants the importance of strict compliance with court orders and having due regard and respect to the administration of justice and that failure to do so will lead to grave consequences.  

31.  I will order that the sentences be served concurrently.  The total term of imprisonment is one of two months.   

Order 52 rule 8

32.  The respondent had referred to Order 52 rule 8 and sought an order of discharge. Given that the respondent has not yet been sentenced, the power of discharge under the rule does not arise for consideration.

Stay pending appeal

33.  The respondent also asked that the execution of the committal order may be stayed pending her appeal to the Court of Appeal. Other than the power to suspend an order for committal under Order 52 rule 7, I do not consider the court has power to postpone or stay the execution of an order of committal.  While the Court of Appeal has power to grant bail pending appeal in contempt proceedings: section 50(3) of the High Court Ordinance, Cap.4 and Order 59 rule 20(2)  of Rules of the High Court, the Court of First Instance has no such power.

34.  The respondent must therefore surrender herself to the bailiffs who are present in court as soon this hearing is over.                

Costs

35.  As to costs of these proceedings, the Secretary for Justice applies for an order to be made against the respondent and for the costs to be on indemnity basis.  The respondent had advanced no submissions on this.  She is presently an undischarged bankrupt.  That however is no bar to the court making a costs order against her.  I can see no reason why the respondent should not be ordered to pay the costs of these proceedings. 

36.  On the question of indemnity costs, I recognise this is a matter of judicial discretion: Koo Hoi Yan v. Kao, Lee & Yip (2009) 12 HKCFAR 904 at para.12.  Although it is not a principle of law or an inflexible rule, an indemnity costs order is always made in contempt proceedings.  The reason is as explained by Rogers VP in Lau Yee Ching v. Wong Tak Kwong (unreported) CACV 385/2005, 3 March 2006 at paras.5 and 6:

“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. …”

37.  These observations apply with full force in the present case.  An indemnity costs order is warranted.

Conclusion

38.  For the reasons stated above, I make the following orders:

(1) For her contempt of court, the respondent is committed to prison to be imprisoned for:

(a) one month for breach of undertaking given to court on 3 December 2007;

(b) one month for breach of the Order dated 14 April 2008;

(c) two months for interference with the due and proper administration of justice in sending or copying letters to judges and officers of the High Court and filing affirmations with the High Court in insulting, abusive, offensive, ridiculing or threatening language, and in large quantity and volume;

(d) two months for interference with the due and proper administration of justice in making insulting, abusive, offensive, ridiculing or harassing phone calls to the clerk to Mr Justice Lam;

(e) two months for interference with the due and proper administration of justice in employing deceptive and misleading means in seeking to commence proceedings in HCB9860/2007 in breach of paragraph 1 of the Order dated 7 August 2007;

(f) two months for interference with the due and proper administration of justice in using proceedings or purported proceedings under HCB9860/2007 for an improper, malicious and ulterior purpose thereby abusing the process of the court; and

(g) two months for interference with the due and proper administration of justice in using insulting, abusing or offensive language against Mr Justice Chung in a Notice of Appeal dated 22 May 2008;

and the terms of imprisonment are to be served concurrently.

(2) The costs of these proceedings, including the costs of the application for leave to make the application for an order for committal and all costs reserved, be paid by the respondent to the applicant on indemnity basis, to be taxed if not agreed.