TIONG KING SING v. SAM BOON PENG YEE

HCMP 2206/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2206 OF 2014

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JUDGMENT

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Introduction

1.  This is the hearing of the Plaintiff’s Originating Summons dated 5 September 2014 (the “Plaintiff’s Committal Summons”) for an order that the Defendant be committed for contempt of court for his wilful breaches of his undertakings given to court on the basis of which Louis Chan J granted the order dated 22 February 2013 in HCA 1517 of 2011 dismissing the Plaintiff’s application for Mareva injunction, discharging the injunction order dated 13 January 2012 as amended on 30 January 2012 (the “Injunction Order”) and ordering costs against the Plaintiff (the “Subject Order”).

2.  The Plaintiff filed two affirmations dated 15 August 2014 and 11 February 2015 in support of his application.  The Defendant filed one affirmation dated 12 December 2014 in opposition, but at the hearing he chose not to give evidence or deploy it in evidence.

The background

3.  The Plaintiff is a Malaysian Chinese.  He was the owner of all the shares in Wijaya International Investment Limited, later renamed as W International Investment Group Limited (“W Group Limited”), which in turn owns all the share capital of Chongqing Wijaya Realty Limited (“Chongqing Wijaya”), later renamed as Chongqing Whittier Homes Limited.  Chongqing Wijaya owns a major commercial and residential property development in Ba Nan District in Chongqing (the “Ba Nan Project”) in the People’s Republic of China (the “PRC”).

4.  The Defendant is also a Malaysian and a United States citizen.  He was the general manager of Chongqing Wijaya since September 2009.

5.  In 2009, the Plaintiff sold all his shares in W Group Limited to the Defendant and his nominee, ie the 2^nd Defendant (“New Sunshine”), for RMB333.5 million, payable by seven instalments over a period of three year until 1 March 2012.

6.  After paying three instalments totalling RMB83.5 million, the Defendant defaulted.  Later the parties entered into two variation agreements to pay the balance of RMB250 million plus an additional sum of RMB300 million between July 2011 and January 2014.  The variation agreements provided for inspection of the accounts of W Group Limited by the Plaintiff’s representative.  The Defendant only paid RMB5 million towards the additional sum.  The outstanding balance of the purchase price of RMB250 million and the outstanding balance of the additional sum of RMB295 million remain unpaid.

7.  On 28 June 2011, the Plaintiff commenced HCA 1069/2011 as an action in aid of arbitration proceedings in Singapore.  On the same day, he applied ex parte for a Mareva injunction to restrain the Defendant and New Sunshine from disposing of the shares and the assets of W Group Limited and Chongqing Wijaya.  The application came before Poon J (as he then was) who made no order.

8.  By a letter dated 5 July 2011, the Plaintiff through his then solicitors, Huen & Partners (“H&P”) communicated to the Defendant and New Sunshine his stance that he considered them to be in repudiation of their agreement and demanded, among other things, the return of the shares in W Group Limited.

9.  On 8 July 2011, the Plaintiff commenced HCMP 1289/2011 seeking essentially similar injunctive relief against the Defendant and New Sunshine as before.  On the same day, he applied ex parte for Mareva injunction and succeeded before me. He then discontinued HCA 1069/2011.

10.  At the inter partes hearing on 12 August 2011, Chung J discharged the ex parte injunction on the ground of material non-disclosure and on the Plaintiff’s failure to establish real risk of dissipation of assets.  Chung J also refused to re-grant the injunction inter partes.  That action was subsequently discontinued.

11.  In September 2011, the Plaintiff commenced HCA 1517/2011. 

12.  On 10 January 2012, the Plaintiff applied for a Mareva injunction against the Defendants or alternatively an order that they pay into court the sum of RMB245 million.  The application was first heard on 13 January 2012 before Deputy High Court Judge Louis Chan (as he then was), who adjourned the application to 2 March 2012 for substantive hearing. He also made an interim injunction order, which was subsequently amended on 30 January 2012, ie the Injunction Order, that the Defendant and New Sunshine:

(1)  shall pay the sum of RMB45 million on or before 20 January 2012 into a designated bank account as agreed by the parties;

(2)  shall not dispose of the shares of W Group Limited and the shares of Chongqing Wijaya; and

(3)  shall, commencing on 13 January 2012, provide weekly written reports of the sale and/or disposal of and/or any creation of encumbrances on the units and landed properties comprising the Ba Nan Project.

At the substantive hearing on 2 March 2012, the learned judge reserved his decision and continued the Injunction Order.   

13.  While pending deliberation by the learned judge, the Plaintiff had a change of his legal team and amended his pleadings, first in May and then in November 2012.  The significant amendment was that the Plaintiff is now primarily claiming rescission of all the agreements between the parties and the reinstatement of his position as the registered owner of the shares in W Group Limited.  Termination of the agreement as a result of the Defendants’ repudiation has become his alternative case. 

14.  On 17 December 2012, the Public Security Bureau in Chongqing ceased all the books and accounts of Chongqing Wijaya for investigation.  The bureau engaged the Chongqing Branch of Daxin Certified Public Accountants (the “PRC Forensic Accountants”) to conduct forensic examination of the accounts of Chongqing Wijaya.  In mid January 2013, the Plaintiff was supplied a copy of the PRC Forensic Accountants’ draft report.  The Plaintiff’s forensic accounting expert, KPMG, inspected the books and accounts of Chongqing Wijaya at the office of the PRC Forenisc Accountants.  On 3 February 2013, KPMG compiled its first report (“KPMG’s 1^st Report”). 

15.  On 14 February 2013, while still waiting for a decision from Louis Chan J, the Plaintiff took out a summons for inter alia, appointment of receivers and injunctive relief against the Defendant’s and New Sunshine’s dealing with assets of Chongqing Wijaya (the “receivership summons”).

16.  On 22 February 2013, Louis Chan J handed down his decision.  In summary, the learned judge did not accept the Plaintiff’s complaints of real risk of dissipation of assets by the Defendant or New Sunshine or of changes in circumstances materially different from those already canvassed by Chung J. Upon the cross undertakings of the parties, the learned judge made the Subject Order dismissing the Plaintiff’s application, discharging the Injunction Order and ordered costs against the Plaintiff.  Two of the Defendant’s and New Sunshine’s undertakings incorporated in the Subject Order are as follows:

(1)  to maintain a deposit of RMB45 million at a bank in Chongqing as agreed by the parties (the “1^st Undertaking”); and

(2)  to provide the Plaintiff’s solicitors weekly reports of the sale and/or disposal and/or creation of encumbrances on the units and landed properties comprising the Ba Nan Project (the “2^nd Undertaking”).

These undertakings mirrored the obligations under the Injunction Order.

17.  Between March and June 2013, KPMG performed further inspections of Chongqing Wijaya’s books and accounts and made site visits at the Ba Nan Project.  On 27 June 2013, KPMG produced its second report (“KPMG’s 2^nd Report”).  

18.  On 2 July 2013, the Plaintiff issued another summons for, inter alia, injunctive relief against the Defendant and New Sunshine dealing with the assets of Chongqing Wijaya.  That summons and the earlier receivership summons were heard together and dismissed by Deputy High Court Judge Leung on 3 December 2013 with costs, as the court was not satisfied that the Plaintiff had established significant change in circumstances or new and real risk of dissipation of assets since the last failed attempt to obtain Mareva injunction.

19.  In May 2014, a group of men in the presence of the Plaintiff caused harassment to the Defendant at the office of Chongqing Wijaya.  On 13 May 2014, the Defendant and New Sunshine made an ex parte application for leave to issue committal proceedings against the Plaintiff for his breach of undertaking.  On 4 June 2014, I granted them ex parte leave to issue an originating summons for committal of the Plaintiff.  On 10 June 2014, the Defendant and New Sunshine issued an originating summons under HCMP 1404/2014 applying for an order of committal against the Plaintiff (the “Defendants’ Committal Summons”). 

20.  On 30 July 2014, the Plaintiff applied to set aside the ex parte leave granted to issue the Defendants’ Committal Summons and to have that summons dismissed.  Those applications were heard before me on 19 December 2014.  On 21 January 2015, I handed down decision dismissing both of the Plaintiff’s applications.

21.  On 15 August 2014, the Plaintiff issued a statement pursuant to Order 52 of the Rules of the High Court and obtained leave to issue the Plaintiff’s Committal Summons.

The applicable legal principles

22.  Counsel have no dispute as to the applicable legal principles in relation to contempt proceedings.  The leading authority is the Court of Final Appeal decision in Kao, Lee & Yip v Donald Koo Hoi Yan[1]. The following is a summary of the applicable legal principles.

23.  First, an undertaking given to the court by a party has exactly the same force as an order made by the court against him, and breach thereof amounts to contempt in the same way as a breach of an injunction: Barrie & Lowe[2]; Miller[3].

24.  Second, adjudication on liability for civil contempt involves a three-stage process: Kao, Lee & Yip v Donald Koo Hoi Yan [4]:

(1)  construing the subject orders so as to ascertain their meaning and operation (the “construction issue”);

(2)  determining whether the alleged contemnor has in fact not complied with the orders as so construed (the “breach issue”); and

(3)  considering whether any failure to comply was accompanied by the state of mind necessary to establish punishable contempt (the “mens rea issue”).

25.  Third, on the construction issue, an order will be enforced by committal only if it is expressed in clear, certain and unambiguous language.  But a distinction must be drawn between an ambiguous order and an order which requires a party to do a specific act and leaves it to that party to determine the way in which that requirement is to be obeyed. Provided that the order specifies with certainty the result to be achieved it is not normally for the applicant to suggest, or for the court to prescribe, a particular method of complying with the order: Kao, Lee & Yip[5].  Any ambiguity in the order or undertaking will be resolved in favour of the alleged contemnor: Hong Kong Civil Procedure 52/1/17.

26.  Fourth, on the breach issue, orders of any court must be complied with strictly in accordance with their terms.  It is not sufficient, by way of answer to an allegation that a court order has not been complied with, for the person concerned to say that he “did his best”.  If a court order requires a certain state of affairs to be achieved, the only way in which the order can be complied with is by achieving that state of affairs: Kao, Lee & Yip[6]. Even if a party is legally advised that an order has been made invalidly, delay in complying with the order is legitimate only pending application to the court to discharge the order: Kao, Lee & Yip[7].

27.  Fifth, on the mens rea issue, it is sufficient to prove that the alleged contemnor’s conduct was intentional, not casual, not accidental; and that he knew of all the facts which made it a breach of the order: Kao, Lee & Yip[8].  An honest mistake or inadvertence will not be enough for contempt: Adam Phones Ltd v Goldschmidt[9].  That the conduct was not intentional or reckless, but merely casual accidental and unintentional is not sufficient but might visit the offending party with costs: Kao, Lee & Yip[10].

28.  It is not necessary to prove that the breach was wilful or that the alleged contemnor appreciated that he did breach the order: Kao, Lee & Yip[11]. It is also not necessary to prove an intention to interfere with or impede the due administration of justice: Kao, Lee & Yip[12]. 

29.  It is no answer to a complaint of contempt that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order: Kao, Lee & Yip[13]. 

30.  However, a contumacious disobedience to an order negates the possibility that the disobedience is “casual or accidental and unintentional” and is relevant to the penalty to be imposed: Kao, Lee & Yip[14].

31.  Contumacious disobedience may be inferred from matters such as:

(a)  a “catch me if you can” attitude exhibited by the alleged contemnor: Grasberg Capital Asia Ltd v Huchun Joseph Yung[15];

(b)  persistent non-compliance with the order: Hao Xiaoying v Wong Yiu Lam William[16];

(c)  delay in complying with the order: Grasberg Capital Asia Ltd v Huchun Joseph Yung[17]; and

(d)  the engagement of lawyers within jurisdiction suggesting that the alleged contemnor must have been properly advised of the law in the jurisdiction relevant to the giving of undertaking and the consequences of its breach: Shen Xing v Li Jun[18].

32.  The plea that an alleged contemnor “did his best” or that the ordinary practice of his office was considered by him and his solicitor as adequate does not show that the failure was “casual or unintentional or accidental”: Kao, Lee & Yip[19]. 

33.  When an act or omission in breach of a court order is done or made not casually, or accidentally or unintentionally, it is immaterial that the breach was committed in reliance on a third party’s advice, even legal advice: Kao, Lee & Yip[20].

34.  Sixth, on the question of proof, the burden of proof is on the applicant.  The standard of proof is that of the criminal standard, ie proof beyond reasonable doubt in respect of both the actus reus which is claimed to constitute the contempt and the mens rea of the alleged contemnor:  Kao, Lee & Yip[21].  There is no burden on the alleged contemnor to prove his innocence.  There is no difference between civil and criminal contempt in this regard: Hong Kong Civil Procedure 52/1/17.

35.  Seventh, contempt proceedings should, in the absence of a good reason, be initiated within a reasonable time of a party obtaining knowledge of a breach of a court order or undertaking or other misconduct: Hong Kong Civil Procedure 52/2/5; and Taylor v Ribby Hall Leisure Ltd[22].

Plaintiff’s application to amend

36.  It would be convenient to deal with two matters first and get them out of the way before dealing with the merits of this application.  These are the Plaintiff’s application to amend the Plaintiff’s Committal Summons and statement and the issue of delay.

37.  As the statement and the Plaintiff’s Committal Summons are complaining of breaches of the 1^st and 2^nd Undertakings in the Subject Order dated 22 February 2013, the effective date for the purpose of this contempt can only be from the date of that order.  Four of the six breaches in respect of the 2^nd Undertaking were committed before 22 February 2013.  Hence, it is Ms Eu’s, counsel for the Defendant’s, submission that as these complaints were not pleaded in the Plaintiff’s Committal Summons they should not be entertained.  In reply, Mr Shieh, counsel for the Plaintiff, submits that the breaches of the Injunction Orders were pleaded in paragraphs 14 to 17 of the Plaintiff’s Committal Summons and in corresponding paragraphs 19 to 20 of the statement under the heading of “Particulars of Sam Yee’s breaches of the Injunction Orders and then the 1^st Undertaking”.  There is a similar heading in respect of the breaches of the Injunction Orders and the 2^nd Undertaking.  Hence, Mr Shieh seeks leave, insofar as may be necessary, to slightly amend the Plaintiff’s Committal Summons and statement as per the drafts submitted during his reply submission. He submits that such minor amendments would in no way cause any injustice to the Defendant and should be allowed.

38.  In view of the penal nature of the sanctions for contempt, the statement in support of the application for leave to issue contempt proceedings is to be treated in a similar manner as an indictment in criminal proceedings.  The grounds in respect of which leave for making application for an order of committal has been granted must be included in the originating summons.  At the substantive hearing, the applicant cannot, except with the leave of the court, rely on any grounds not stated in the originating summons, being grounds in respect of which leave for making the application for an order for committal has been granted: Order 52 rule 3(1A) and rule 6; Hong Kong Civil Procedure,paragraphs 52/2/6 and 52/3/1; and LPK v HSH[23].

39.  However, the court has discretion under Order 20 rules 5, 7 and 8 to grant leave to amend pleadings at any stage of the proceedings.  While respecting the need to protect and ensure fairness to the alleged contemnor by the above procedural requirements, the court itself has a very substantial interest in seeing that its orders are upheldand the system of justice not undermined by wanton flouting of the court’s orders. The prime consideration for the court is the requirements of justice.  The court will therefore exercise its discretion to cure any procedural defect so long as it does not prejudice the contemnor.  In Kao, Lee & Yip[24], Sir Gerard Brennan NPJ affirmed the court’s power to dispense with procedural requirement in appropriate cases.  He adopted the following dicta of Lord Woolf MR in Nicholls v Nicholls[25]:

“… Like any other discretion, the discretion provided by the statutory provisions must be exercised in a way which in all the circumstances best reflects the requirements of justice. In determining this the court must not only take into account the interests of the contemnor but also the interests of the other parties and the interests of upholding the reputation of civil justice in general. Today it is no longer appropriate to regard an order for committal as being no more than a form of execution available to another party against an alleged contemnor. The court itself has a very substantial interest in seeing that its orders are upheld. If committal orders are to be set aside on purely technical grounds which have nothing to do with the justice of the case, then this has the effect of undermining the system of justice and the credibility of the court orders. While the procedural requirements in relation to applications to commit and committal orders are there to be obeyed and to protect the contemnor, if there is non-compliance with the requirements which does not prejudice the contemnor, to set aside the order purely on the grounds of technicality is contrary to the interests of justice …”

40.  In the Plaintiff’s Committal Summons, the Plaintiff claims two reliefs: (1) committal of the 1^st Defendant for contempt of court for his wilful breaches of the Defendant’s undertakings as incorporated in the Subject Order and (2) costs.  No relief is expressly sought for breaches of the Injunction Order.  However, the breaches of the Injunction Orders were comprehensively set out in the Plaintiff’s Committal Summons as well as in the statement.  Despite the deficiency, by no reading of these documents, could the Defendant be led to the belief that his alleged breaches of the Injunction Orders were mentioned merely by way of background and do not form part of the complaint for which remedy is sought.  It is clear that these breaches are also part of the subject matter of this prosecution. 

41.  This is a bad case of omission on the part of the Plaintiff’s solicitors.  However, the omission is only one as to form but not as to substance.  The breaches of the Injunction Orders were identified with sufficient particularity.  Ms Eu had no difficulties taking instructions from the Defendant and responding to the allegations.  The amendments sought are just to comply with formality.  The breaches are continuing and persistent breaches.  The Defendant had clear notice of the breaches complained of.  If established, the Defendant has been in wanton and contumacious disregard of his own undertakings.  As the evidence shows, he did not even have any intention to honour his payment undertaking when it was first offered.  To afford him protection on purely technical grounds which have nothing to do with the justice of the case would have the effect of undermining the system of justice and the credibility of the court orders.  It would make a mockery of the exercise of the court’s discretionary power to grant him protection for abusing the court’s machinery of justice.  In the interest of justice, I allow the amendments.

Delay

42.  Quoting Paragraph 52/2/5 of Hong Kong Civil Procedure 2015 and Taylor and Another v Ribby Hall Leisure Ltd [26], Ms Eu submits that contempt proceedings should, in the absence of a good reason, be initiated within a reasonable time of a party obtaining knowledge of a breach of a court order or undertaking or other misconduct.  She places great emphasis on the fact that the Subject Order was made on 22 February 2013, but it was not until 15 August 2014, 18 months later, that the Plaintiff commenced this contempt proceeding.  Hence, she submits that the Plaintiff’s Committal Summons should be dismissed by reason of delay.

43.  The court has inherent discretionary power to strike out proceedings.  But I am not aware of any authority which lays down any proposition that delay as such justifies withholding of relief as a matter of discretion or as a matter of law.  The test of whether to exercise that discretion is: whether to commence or continue the proceedings would, in view of the delay, amount to an abuse of the process of the court.  In that connection, an important consideration is whether the delay has any impact on a fair trial: Japan Capsule Computers (UK) Ltd v Sonic Games Sales[27]. 

44.  In Taylor v Ribby, the plaintiff had knowledge of the defendant’s misconduct for five years.  No reason for the delay in commencing proceedings was given, other than a deliberate decision not to do so earlier.  The delay occasioned difficulties to the defendant in finding witnesses and for loss of recollection after six years.  It was in those circumstances that the judge made an express finding that the defendant had been seriously prejudiced by the delay and struck out the proceedings.  On appeal, the English Court of Appeal upheld the learned judge’s exercise of discretion and held that the appellate court will not interfere with a judge’s exercise of discretion if there was no error of principle and not manifestly wrong.  It then went on to lay down for guidance that absence of a good reason contempt proceedings should be initiated within a reasonable time of a party obtaining knowledge of a breach of a court order or undertaking or other misconduct.  That rule of guidance is not intended to be a straight jacket.  What is a good reason and what is a reasonable time depends on the circumstances.  In deciding whether the delay amounted to an abuse of process, I have to assess the impact on a fair trial by balancing the delay and the reason for delay on the one hand against the prejudice suffered or likely to be suffered by the alleged contemnor on the other. 

45.  In the present case, a delay of eighteen months is very long.  The Plaintiff’s explanation is that he did not want this satellite proceeding to delay the main action.  The genuineness of his intention and concern is supported by the zeal with which he pursued his rights in the various applications under HCA 1517/2011.  Shortly before Louis Chan J delivered his decision and made the Subject Order, the Plaintiff had taken out a summons for appointment of receivers.  About five months later, he took out another summons for injunctive relief against the Defendant’s dealing with the assets of Chongqing Wijaya.  Though the Plaintiff did not say so, I believe, had those applications turned out in his favour, he would not have found it necessary to commence this contempt proceeding for his interests would have been secured and it would be in his best interest to proceed promptly to trial without further ado.  I accept the Plaintiff’s explanation that he had a serious concern not to sidetrack from the main action in which a lot more is at stake. 

46.  The Plaintiff goes on to explain that he eventually commenced this proceeding because the Defendant and New Sunshine had unjustifiably commenced contempt proceeding against him which made delay obviously inevitable.  As I accept his concern not to sidetrack, this explanation appears credible.  As the matter now stands, the main action will have to be delayed.  The Plaintiff may as well take out this proceeding concurrently.  As the events turned out, no delay has been caused by this proceeding because the Defendants’ Committal Summons against the Plaintiff is still to be heard.  Ms Eu argues that it is clear from the Plaintiff’s own explanation that the present application is an act of retaliation.  Timing-wise, it appears to be.  But having accepted the Plaintiff’s concern not to sidetrack and having accepted his explanation why he now chooses to proceed now, I rule out this motive and accept the Plaintiff’s explanations for the delay.

47.  On the other hand, the Defendant has put forward no evidence of any prejudice.  He was able to put forward affidavit evidence in response which he chose not to rely on and which in any event mentioned nothing about any prejudice caused by the delay.  I find that the delay has no impact on a fair trial.  In balancing the delay and the reasons for delay on the one hand against the prejudice suffered or likely to be suffered by the Defendant on the other, despite the very long delay, I do not consider it appropriate to exercise my discretion to strike out the Plaintiff’s Committal Summons by reason of the delay.

The 1^st Undertaking – the construction issue

48.  The Defendant’s obligation under the 1^st Undertaking is to “maintain a deposit of RMB45 million at a bank in Chongqing as agreed by the parties”.  To ascertain the meaning and operation of this undertaking, this undertaking has to be construed against the following factual matrix.    

49.  On 13 January 2012, Louis Chan J made the Injunction Order, which was amended on 30 January 2012, ordering the Defendant to “pay the sum of RMB45 million on or before 20 January 2012 into a designated bank account as agreed by the parties”.  On 22 February 2013, the learned judge made the Subject Order incorporating the undertakings.  The use of the word “maintain” in the 1^st Undertaking presupposes the deposit had been paid pursuant to the Injunction Order into a designated bank account as agreed by the parties or before 20 January 2012 and the obligation under the 1^st Undertaking is to maintain or keep that deposit in the account as agreed by the parties. 

50.  But in reality, no account had been agreed.  No deposit had been paid into any account as agreed by the parties on or before 20 January 2012 or at all.  Between 31 January and 1 March 2012, the Plaintiff’s then solicitors, H&P were negotiating with the Defendant’s solicitors, CL Chow & Macksion Chan (“C&C”), trying to agree a designated account.  On 31 January 2012, H&P wrote to C&C proposing that there should be two signatories in the designated account who should be Hong Kong residents; that its partner should be one of the signatories; and that the signatories should sign an undertaking not to withdraw the funds from the account before 2 March 2012.  That proposal was flatly refused by C&C in their letter dated 2 February 2012:

“ The purpose of paying RMB45,000,000 into a designated account is, as we understand it, to show our clients’ ability of making payment to the Plaintiff under the Formal Agreement or the subsequent agreement as varied.

As we have informed you, we are instructed that our clients have arranged a sum of RMB45,000,000 to be deposited into a designated account number 50001093600050212814 with Chongqing Branch of China Construction Bank, and that the said deposit or any part thereof will not be withdrawn before 2^nd March 2012.”

(My emphasis underlined)

From this letter, it is obvious that the Defendant knew the purpose of the maintaining the funds in the designated account was to provide security for making payment to the Plaintiff if he is found liable, that the funds should be unencumbered and will not be withdrawn before 2 March 2012.

51.  From the further correspondence it transpired that no agreement on a designated account was reached.  In C&C’s letter dated 29 February 2012, the Defendant insisted that the additional signatory should be a PRC resident due to tax implications, procedural difficulties, charges and levies in transferring the funds out of Chongqing to another province within the PRC.  C&C even assured H&P that they had obtained PRC accounting and legal advice confirming the same.

52.  The disagreement about the designated account and the non-compliance of this part of the Injunction Order was known to Louis Chan J at the substantive hearing on 2 March 2012.  The learned judge expressed surprise about the tax and costs implications suggested by the Defendant.  However, Ms Eu repeatedly assured him that the funds were in a bank in Chongqing, unencumbered and the Defendant will not “take away the 45 million”.  That assurance must have been given on the instruction of the Defendant.  It was against this background that the undertaking was offered by Ms Eu on behalf of the Defendant and accepted by Louis Chan J.  

53.  The purpose of paying the sum of RMB45 million into a designated account as acknowledged by C&C’s letter dated 2 February 2012 and by Ms Eu at the substantive hearing is to show the Defendant’s ability to make payment to the Plaintiff if found liable and as a security.  The funds must be unencumbered and will not be withdrawn from the account save for the purpose of discharging the Defendant’s liability towards the Plaintiff.   

54.  The Defendant’s obligation under the Injunction Order was to pay RMB45 million into a designated account (putting aside, for the time being, the question that the account has to be agreed by the parties) for the purpose of providing a security.  The funds in the account must be within his or New Sunshine’s unfettered power to dispose of or use as a security.  As against the bank, the only person with that power is the account holder.  The funds must therefore be paid into an account of the Defendant or New Sunshine or a third party which the Defendant has, as against the bank, the power to order payment out and that account has to be agreed by the parties.  This is the most favourable construction to the Defendant that I can make of his undertaking.  I cannot accept, in the context of the Injunction Order, that the account can be an account of any third party, unless agreed by the Plaintiff.  The Defendant would not be complying with the Injunction Order by paying RMB45 million into his wife’s account.  As submitted by Mr Shieh, if the Defendant and New Sunshine wish to rely on funds in the name of a third party’s account it is incumbent upon them to provide proof that the funds in that account are, as against the account holder, within their unfettered power to control or dispose of. 

55.  The word “maintain” has many meanings according to the Shorter Oxford English Dictionary[28].  The most apposite meaning in the present context is to “cause to continue a state of affairs, a condition, an activity etc.”  Hence “to maintain a deposit of RMB45 million” means to keep an unencumbered balance of RMB45 million in the account.  That, as I said, presupposes a deposit of that amount had already been paid into the account.  The obligation is to cause to continue that state of affairs, ie keeping an unencumbered balance at or above the level of RMB45 million in the account.  Since the purpose of maintaining the account into which the funds were paid pursuant to the Injunction Order is provide a security, that account must have the features in the preceding paragraph, ie the funds in the account must be within the Defendant’s or New Sunshine’s unfettered power to dispose of or use as a security.  It cannot be a third party’s account, unless it was so agreed by the Plaintiff.

56.  Thus, on the true construction of the 1^st Undertaking, the Defendant must:

(1)  maintain a deposit with an unencumbered balance at or above the level of RMB45 million in his, or New Sunshine’s or a third party’s account which he or New Sunshine has unfettered power to dispose of or use as a security;

(2)  the account must be with a bank in Chongqing; and

(3)  the account must be agreed by the parties,

The 1^st Undertaking – the breach issue

57.  Purportedly pursuant to the Injunction Order, the Defendant had been providing copies of certificates issued by the Chongqing branch of the China Construction Bank (the “Bank”) of a RMB45 million deposit in an account number 50001093600050212814 in the name of Chongqing Wijaya (the “814 Account”).  Commencing on 24 December 2013, the Defendant produced certificates for the deposit issued by the Bank relating to account number 50001093600049211861 (the “861 Account”) instead. 

58.  The Plaintiff alleges that the deposits in the 814 Account and the 861 Account belong to Chongqing Wijaya; they do not belong to the Defendant or New Sunshine; they are encumbered and cannot be used by the Defendant or New Sunshine; and the accounts were never agreed to by the Plaintiff.

59.  While it appears from the correspondence between the parties’ solicitors, including C&C’s letter dated 2 February 2012 above, that C&C was relying on the deposit in the 814 Account and the 861 Account as compliance with the 1^st Undertaking, Ms Eu adopts a different stance at the hearing.  She argues that as the bank account must be agreed by the parties and as the parties had never agreed to any account, the obligation to pay RMB45 million into or maintain any account never arose.  She argues that the deposit was already in the 814 Account at the time of hearing before Louis Chan J on 13 January 2012.  It was known that the account was in the name of Chongqing Wijaya.  If an account were ever agreed between the Plaintiff and Defendant, the Defendant and New Sunshine would be under an obligation to move the deposit or pay RMB45 million into the 861 Account in December 2013.  No complaint was made in relation to the 861 Account until these contempt proceedings.  Even if there was a complaint it is immaterial since there was no agreed account.  Ms Eu therefore submits that as no account had been agreed, the Defendant cannot be in breach of any undertaking.  Thus, Ms Eu admits non-compliance with the 1^st Undertaking but seeks to excuse that non-compliance for want of an agreed designated account.   

60.  Mr Shieh argues that it is wrong for Ms Eu to presuppose the 1^st Undertaking provided for sequential obligations and that agreeing an account is a condition precedent before the obligation to pay could arise. I emphatically agree with Mr Shieh.  The starting point is that a court order is meant to be complied forthwith unless otherwise provided for.  As Sir Gerard Brennan NPJ held in Kao, Lee & Yip[29], “if a court order requires a certain state of affairs to be achieved, the only way in which the order can be complied with is by achieving that state of affairs.  The undertakings bite the moment the Subject Order was made by Louis Chan J. 

61.  The obligation to comply with a court order rests on the party who has been ordered to perform.  There is no burden on the party for whose benefit the order was made.  The burden is therefore on the Defendant and New Sunshine to secure or procure agreement on the designated account into which the money be paid pursuant to the Injunction Order and to maintain that account.  They must do so forthwith, meaning within such time as is reasonably practicable.  The duty to comply is owed to the court and not to the party for whose benefit the order was made.  If for any reason the party obliged to perform cannot comply, even if it is due to the fault of the party for whose benefit the order was made, he should apply to court for direction or for extension of time for compliance or for variation or even discharge of the order or undertaking.  It lies ill in his mouth to say the obligation has not yet arisen because we have not agreed the account.  It is even worse, if non-compliance is due to his self-imposed obstruction. The argument of sequential obligations or approach in compliance is disingenuous.  To adopt Ms Eu’s sequential approach would open the gate to parties obliged to perform to avoid performance by putting up excuses for not agreeing to an account into which to pay or maintain the deposit.  Having so construed the 1^st Undertaking and rejected Ms Eu’s submission, I find that the Defendant was in breach of the 1^stUndertaking.  What remains is for me to analyse his excuse so as to make a further finding whether the breach was substantial or just technical.

62.  On the fact, the 814 Account or the 861 Account are the accounts of Chongqing Wijaya and not the Defendant’s or New Sunshine’s account.  Technically, they are third party’s accounts.  The fact that an individual by himself holds practically all the shares in a company does not in any way make the property or assets of the company his: Gramophone and Typewriter, Limited v Stanley[30]. As against the Bank, neither the Defendant nor New Sunshine had unfettered power over the funds in those accounts.   Chongqing Wijaya cannot be compelled to withdraw funds out of those accounts to discharge the liability of the Defendant and New Sunshine, if they are found liable to the Plaintiff.  As New Sunshine is the Defendant’s nominee and through it the Defendant is effectively in control of Chongqing Wijaya and its bank accounts, it can be argued that the Defendant’s breach caused by corporate personality issue was just technical. 

63.  However, more importantly, the accounts were not unencumbered or freely disposable in the Defendant’s hands.  According to paragraph 4.3.3 to 4.3.11 of KPMG’s 1^st Report, the operation of the 814 Account was subject to the Real Estate Development Loan Closed Management Agreement (the “Closed Management Agreement”) and the Fixed Assets Loan Agreement (the “Fixed Assets Loan Agreement”) signed by the Defendant on behalf of Chongqing Wijaya on 22 December 2010.   

64.  Under the Fixed Assets Loan Agreement, Chongqing Wijaya borrowed RMB145 million from the Bank for a period of 36 months from 27 December 2010 to 26 December 2013.  The funds in the 814 Account were secured for the purpose of repaying loans advanced by the Bank under that agreement. Clause 6 of that agreement provides:

“ 第六條 賬戶使用與監管

1. 貸款發放賬戶

……

2. 還款準備金賬戶

本合同生效之日起 叁 個工作日內，甲方[Chongqing Wajiya]應在乙方[the Bank]開立還款準備金賬戶或將已在乙方開立的現有賬戶 (賬號: 50001093600050212814) 作為還款準備金賬戶。還款準備金賬戶應滿足以下要求:

……

(4) 未經乙方同意，甲方不得以任何方式 (包括但不限於轉賬、支用)處分還款準備金賬戶內的資金。

3. 乙方有權對甲方在乙方開立的以下賬戶進行監控:

(1) 賬號 : 50001093600050212807;

(2) 賬號 : 50001093600050211860;

(3) 賬號 : 50001093600050212814。

乙方的監控措施包括但不限於:

(1) 對 (50001093600050212807，貸轉存賬戶)的資金需經乙方審查同意後方可支用;

(2) 對 (50001093600050212814，償債資金賬戶)的資金按照雙方簽訂的《房地產開發貸款封閉管理協議》執行，每季扣收當期提取的償債資金歸還乙方貸款本金;

…”

According to that clause, the funds in the 814 Account shall be used in accordance with the provisions of the Closed Management Agreement.   The Bank had supervisory control over that account.  Save with the Bank’s consent, Chongqing Wijaya may not dispose of the funds in that account. 

65.  Clause 4 of Closed Management Agreement provides:

“ 第四條 甲方[Chongqing Wijaya]在乙方[the Bank]開立專用存款賑戶(賬號為 50001093600050212807)，以下簡稱支用賬戶，用於貸款項目貸轉存後的建設資金支用以及銷售再投入部份的資金支用:開立項目銷售收入歸集賬戶 (賬號為 50001093600050211860)，以下簡稱收入歸集戶，用於項目開始銷售後貸款項目產生的全部銷(預)售收入及出租收入的歸集:開立保証金存款賬戶 (賬號為 50001093600050212814)，以下簡稱償債賬戶，用於償債資金的留存。乙方有權對上述賬戶進行監管。”

According to that clause, the 814 Account was the loan repayment account maintained specifically for receiving funds to be used for making repayment to the Bank and the Bank had supervisory control over that account.  The funds in that account were secured for the purpose of repaying loans advanced by the Bank.  Chongqing Wijaya may not dispose of the funds in that account without the consent of the Bank.  The funds in that account are not unencumbered.

66.  Mr Shieh refers me to KPMG’s 1^st Report and submits that the matter goes further.  According to the KPMG’s 1^st Report, under the applicable laws in the PRC, a property developer may not sell unfinished residential properties unless it has first obtained the Chongqing Residential Property Pre-Sale Permission (the “Pre-sale Permit”) issued by the Chongqing Land Bureau.  To obtain the Pre-sale Permit, the developer has to enter into a tripartite Agreement for Supervising the Use of Pre-sale Proceeds of Residential Property (the “Supervision of Pre-sale Proceeds Agreement”)with a bank and a construction supervision company registered with the Chongqing Administration for Industry and Commerce and set up a “supervisory account” with the bank.  The agreement is a standard form agreement containing standard terms issued by the Chongqing Land Bureau.  Under the agreement, all sales proceeds of unfinished flats shall be deposited into the supervisory account and the funds in that account may only be used for making payments relating to the same real estate development.  The funds may not be used for repaying bank loans or other debts of the property developer until such time when the balance in the supervisory account is sufficient to meet all the construction costs of the real estate project and the balance exceeds 15% of the total investment costs of the project.  Only when these requirements are met that the developer may seek the bank’s consent for the use of any excess funds.

67.  For the purpose of obtaining the Pre-sale Permits, the Defendant, on behalf of Chongqing Wijaya, entered into a number of those Supervision of Pre-sale Proceeds Agreement in respect of the Ba Nan Project and identified an account with the Bank, account number 50001093600050211860 (the “860 Account”) as the supervisory account.  As at 30 November 2012, the balance of the 860 Account stood at RMB1.68 million only which was significantly below the minimum 15% threshold as prescribed under the Supervision of Pre-sale Proceeds Agreement.  KPMG opined that the 860 Account could not have been the supervisory account for that agreement.  While it was unable to find any other document suggesting that Chongqing Wijaya and the Bank had re-designated the supervisory account, KPMG nevertheless opined that the 814 Account must have been re-designated as the supervisory account in place of the 860 Account.  Adopting that opinion, Mr Shieh submits that the funds in the 814 Account could only be used for paying construction costs in relation to the Ba Nan Project and not freely accessible to the Defendant.  Though Mr Shieh’s submission is based on forensic accounting expert opinion of KPMG, that opinion is un-supported by documentary evidence and is speculative at best.  I do not accept Mr Shieh’s submission. 

68.  Commencing on 24 December 2013, C&C produced copies of certificates from the Bank certifying a deposit of RMB45 million in Chongqing Wijaya’s 861 Account in the place of deposit in the 814 Account. Presumably, it was C&C’s stand that Chongqing Wijaya’s deposit of funds into this account was the Defendants’ compliance with the 1^st Undertaking.  But that is not Ms Eu’s stand at the hearing.  I have no information about this account from the KPMG’s 1^st and 2^nd Reports which pre-dated the date of this deposit or from the bundles of documents filed by the parties.  Counsel have not referred me to any information about this account.  I do not know if the funds in this account are subject to control of the Bank.  If the Defendant wishes to argue that the deposit in that account is unencumbered such that the breach was technical, he has to show that the funds are within his unfetter power of control or disposal, but he has not. 

69.  In summary, the use of the funds in the 814 Account was subject to the restrictions in the Fixed Assets Loan Agreement. The funds were to provide security for repayment to the Bank of the loan advanced to Chongqing Wijaya.  The account was subject to supervision and control of the Bank and may not be withdrawn except with the consent of the Bank.  The Bank had control over the funds in the account as if it were a first charge over the funds in the account.  There is no conceivable reason why the Bank would defer its interest over the funds and allow them to be withdrawn for the purpose of enabling the Defendant to discharge his obligation under the 1^st Undertaking.  It is manifestly clear that the funds in that account were not unencumbered and neither the Defendant nor New Sunshine had unfettered power to dispose of the funds in that account. The extent of Chongqing Wijaya’s indebtedness to the Bank is not known.  In the light of the Closed Management Agreement and the Fixed Assets Loan Agreement, if the Defendant seeks to argue that the deposit in this account is compliance or substantial compliance with the Injunction Order or the 1^st Undertaking or that the breaches were technical, he has to show Chongqing Wijaya had fully repaid the loan of RMB145 million at all material times, but he has not.  The Defendant has not shown that he has unfettered power of control and disposal over the funds in the 861 Account.  Obviously, the breach was not technical, but substantial.

70.  Stepping back and looking at what this breach is all about, I find this is not the case of a defendant with a stack of cash earnestly wanting to deposit into an account but was prevented from performing his obligation by the plaintiff refusing or unreasonably refusing to agree an account into which to place the deposit.  This is not the case of a defendant, through ignorance, relied on the funds in a third party account over which he has de facto control as performance of his obligation.  The funds in the account were secured for the purpose of repaying the Bank and over which the Bank had effectively a first charge.  The funds were not unencumbered as represented to the court by the Defendant through his counsel. 

71.  In that light, the Defendant’s conduct is obviously deliberate and contumacious.  He executed the Fixed Assets Loan Agreement and the Closed Management Agreement on behalf of Chongqing Wijaya. Corporate personality issue apart, he knew the funds in the 814 Account were secured to the Bank and not freely disposable by him. Yet, he instructed his counsel to inform the court that the funds were unencumbered.  He instructed his counsel to tell the court that the funds could not be transferred to Guangzhou without incurring unnecessary and substantial costs and causing tax implications. Louis Chan J expressed surprise.  For my part, I would not accept that assertion on face value without production of evidence, especially as C&C had asserted they had obtained accounting and legal advice to that effect.  Given his proven deceptive behaviour, I wonder if there is any truth in that assertion.  I would take another step further to infer from his deceptive behaviour that what he instructed his counsel to tell the court was to thwart any attempt by the court requiring him to transfer the funds to be placed in an account in the Guangzhou branch of the Bank to which the Plaintiff’s solicitor could be made a joint signatory.  I also doubt the truthfulness of what he told his solicitors that there would be tax implication if a non-PRC citizen is made a joint signatory of a bank account, not a joint holder.  I think almost if not all foreign companies or joint venture companies carrying on business in the PRC have accounts operated by joint signatories who are non-PRC citizens.  The Defendant is a United States citizen and not a PRC citizen. He seems to have no problem about tax implication in his signing accounts for Chongqing Wijaya. These demonstrate the hollowness of his assertions.  Accordingly, I draw the irresistible inference that right from inception, the Defendant set out to deceive the court and never had any intention to honour his 1^st Undertaking.  All these assertions about charges and levies for transferring funds from Chongqing to Guangzhou and tax implications if a non-PRC citizen is appointed as signatory of a bank account were mere excuses deployed by him to avoid reaching agreement on a designated account to which to transfer the funds for the purpose of performing the 1^st Undertaking.  I find the breach was intentional, substantial and contumacious.  This finding, incidentally, also dealt with the mens rea requirement for the contempt.

 The 2^nd Undertaking – the construction and breach issues

72.  The 2^nd Undertaking is written in simple plain English with no technical terms.  The Plaintiff is not seeking to rely on any implied meaning or implied obligation.  It can hardly be argued that on the plain meaning of the undertaking, the Defendant must provide the Plaintiff’s solicitors weekly reports.  The reports were to cover all sale, disposal or creation of encumbrances pertaining to the units and landed properties comprising the Ba Nan Project.

73.  Again, there can be no serious dispute that the Defendant has committed six breaches of the 2^nd Undertaking.  Ms Eu argues that four of the breaches were committed before the date of the Subject Order and are therefore not caught by the Subject Order.  I have allowed the Plaintiff’s application for amendment to include breaches of the Injunction Order which cured the defect in the statement and the Plaintiff’s Committal Summons.  I now turn to examine the six breaches.

74.  First, in paragraph 57 of the Defendant’s purported affirmation filed in HCA 1517/2011, the Defendant admitted failure to report the new charge in favour of Han Hua Guarantee Co Ltd registered on 30 October 2012. The only response from Ms Eu is that the breach predated the 2^nd Undertaking.  In view of the amendment, that is no defence.

75.  Second, in paragraph 64 of the same affirmation referred to above, the Defendant admitted underreporting of 47 out of 326 units sold in the Ba Nan Project.  No explanation for the underreporting was offered.  The only response is that the breach occurred before the 2^nd Undertaking.

76.  Third, the Plaintiff relied on KPMG’s finding reported in paragraph of the KPMG’s 2^nd Report as the Defendant’s breach of the 2^nd Undertaking in failing to report a pledge over 17 commercial units at the ground floor of Blocks 3 and 4 of the Ba Nan Project registered as “restricted for sales”.  In paragraph 4.3.4 of the report, KPMG wrote:

“ We checked the Online Record and noticed that 26 commercial units with a total area of 2,295 m² located under Block 3 and Block 4 were registered for sale as at 12 June 2013 (Appendix 58).  Of the 26 commercial units, 17 were stated as “restricted for sales”, 4 as “available for sale” and 5 as “public area”.”

77.  Ms Eu’s response is that “Appendix 58” which was referred to in the KPMG’s 2^nd Report has not been included in evidence.  It is not known what that appendix is about.  But the Defendant does not dispute the underreporting and puts forward no evidence to contradict the allegation of breach.  If the Defendant wishes to dispute the breach, what can be simpler than to say “I deny and put the Plaintiff to strict proof”.  In the absence of an unequivocal denial or an assertion of a positive case, I accept KPMG’s evidence of their online check and their expert opinion as prima facie proof of breach.  The Plaintiff’s solicitors’ failure to include the appendix in the hearing bundle is just a fortuitous event of no bearing.

78.  Ms Eu’s second response is that there is no evidence as to when the alleged pledge had taken place and whether such pledge fell within the reporting period of the 2^nd Undertaking.  In view of the amendment, that is of no relevance, unless the pledge took place before the date of the Injunction Order.  If that is the case, it is for the Defendant to adduce evidence and to plead.  He does not. 

79.  Fourth, in paragraph 4.4.4 of the KPMG’s 2^nd Report, KPMG reported a charge of the commercial units in the Ba Nan Project in favour of Yipin Construction Group Co Ltd (“Yipin”) as security for timely payments under clause 4 of the Supplemental Agreement entered into between Chongqing Wijaya and Yipin dated 31 December 2012.  This charge has not been reported by the Defendant.  Again, the Defendant does not dispute the non-reporting.  Ms Eu’s only response is that this breach pre-dated the 2^nd Undertaking.  But it is caught by the Injunction Order.

80.  Fifth, in paragraph 5.3.4 of the KPMG’s 2^nd Report, KPMG reported a finding from the official web site of Chongqing Land Bureau that a charge was created over Chongqing Wijaya’s land title deed 202D FangDiZheng 2012 Zi No. 02015 in favour of China Development Bank Corporation on 31 January 2013, which was not reported by the Defendant until more than four months later on 4 June 2013.  Again, Ms Eu’s response is that this breach pre-dated the 2^nd Undertaking and the Plaintiff is guilty of delay in making a complaint.  This breach is also caught by the Injunction Order.

81.  Ms Eu argues that the complaint was known to the Plaintiff since the KPMG’s 2^nd Report dated 27 June 2013, but it was not until 15 August 2014, a delay of 14 months, that the Plaintiff commenced the contempt proceedings.  I have dealt with this issue of delay earlier.  As there is no evidence of prejudice to the Defendant and there is an acceptable explanation from the Plaintiff, it would be inappropriate for me to exercise my discretion to dismiss this complaint of breach.

82.  Sixth, the Plaintiff discovered as late as in 2014 from the website of Land Resources and Housing Authority of Chongqing that Chongqing Wijaya had created and/or caused to be created a charge of certain landed properties in favour of the Chongqing branch of Fudian Bank Co Ltd (“Fudian Bank”).  This charge had never been reported at all by the Defendant.

83.  By referring to a copy of a resolution passed in a shareholders meeting of Chongqing Wijaya on 3 September 2013 and W&G’s letter dated 16 September 2013, Ms Eu submits that it is evident that the Defendant had actually made disclosure of the same before the charge was entered into.  She further submits that as the Defendant had made prompt reporting even before the charge was executed it shows that he had no intention to act in breach of the 2^nd Undertaking.   

84.  From W&G’s letter, it appears that the Defendant had informed W&G that Chongqing Wijaya had resolved to apply to Fudian Bank for a short term loan for and on behalf of its building contractor, Yipin and produced a copy of the resolution.  At the highest, the Defendant had informed the Plaintiff his intention to offer some of the property under the Ba Nan Project as security for a third party indebtedness, but not that he had actually done so.  That is far from saying that he had informed, not to mention “reported”, that a charge had been created over properties under the Ba Nan Project.  In fact, W&G was asking in its letter if the charge had been executed and other questions, such as why Chongqing Wijaya agreed to provide security for Yipin’s indebtedness.  The Defendant does not dispute that he had never reported the charge.  W&G’s letter was never answered.  It is not enough for the Defendant to say “I have told you that I am going to charge the property.  Here are the books, you go and look for yourself what you want me to report or to find out if a charge has been created.”  If a charge has been created, it has to be reported.  If a charge has not yet been created, there is nothing to report.  There is no such thing as “prompt reporting” before the charge was executed, when those questions asked remained unanswered.  That failure to report is a clear breach of the 2^nd Undertaking.

85.  Ms Eu complains that W&G’s letter shows that the Plaintiff typically wanted to interfere with the Ba Nan Project by questioning every charge and the purpose relating thereto which is not permissible under the 2^nd Undertaking.  Whether those questions asked are permissible under the 2^nd Undertaking is beside the point.  The point is whether the Defendant had reported the encumbrances.  In my view, the questions asked are reasonable.  The parties are in dispute over the sale of the Plaintiff’s shares in W Group Limited, which effectively means sale of Chongqing Wijaya and the Ba Nan Project.  Creating a charge over properties under the Ba Nan Project is depleting or is likely to deplete the value of the shares in W Group Limited.  The Plaintiff is seeking rescission of the agreement for sale of the shares in W Group Limited, it must be in his interest to keep a close watch on the assets of the Ba Nan Project and guard against dissipation of the assets.  He also maintains an alternative case of breach of contract.  As an unpaid vendor, he has an equitable lien over the shares in W Group Limited: Langen & Wind Ltd and Others v Bell[31]. As a holder of an equitable lien, he is in the same position as a mortgagee and has the right to preserve the value of its security: Fisher & Lightwood’s Law of Mortgage[32] and Standard Chartered Bank v Walker[33].  In that position, he has every interest to keep a close watch on the assets in the Ba Nan Project.   

86.  Lastly, Ms Eu argues that it is important to put this case in context.  She says that apart from the 2^nd Undertaking, there is also the 4^th Undertaking which allows the Plaintiff and his representative accompanied by three accountants to inspect the books and accounts of Chongqing Wijaya upon reasonable prior notice.  She says that the Defendant has been accommodating the Plaintiff’s unreasonable demands which have been continuously interfering with the Ba Nan Project.  Thus, she submits, even if there has been any delay or slip in the weekly reporting, the Plaintiff cannot prove beyond reasonable doubt that the Defendant had any mens rea to breach any undertaking.  It may equally be due to casual or accidental or unintentional slip rather than intentional breach because the Plaintiff would have discovered the same upon inspection by merely giving reasonable notice.

87.  With respect, Ms Eu is wrong about the Defendant being accommodating to the Plaintiff’s unreasonable requests.  The many unless orders made against the Defendant speaks for his “accommodating” behaviour.  For reasons as I have explained, the questions raised are not unreasonable.  The picture of an accommodating Defendant and interfering Plaintiff painted by Ms Eu is a distorted one.  But this is not the important point and not the real difference I have with Ms Eu.  As I said, the starting point is that orders of the court must be complied with strictly in accordance with its terms.  If a court order requires reporting, the only way in which the order can be complied with is by reporting accurately and timously as required.  It is not enough to say “I have done my best”.

88.  On the question of mens rea, Ms Eu suggests that with the 4^th Undertaking hanging over the Defendant’s head it is likely that the breach was casual or accidental and the Plaintiff cannot prove beyond reasonable doubt that the Defendant committed the breaches with the necessary mens rea.  Proof of mens rea is always by inference.  The 4^th Undertaking is a fact which must be taken into consideration when drawing inference.  It is mildly favourable to the Defendant.  But on the other hand, there are many other more damaging facts which must also be taken into consideration.  There are the six breaches.  The Defendant has a history of persistent non-compliance and delay in compliance with the 2^nd Undertaking.  Such persistent non-compliance and delay negate the possibility of casual or accidental breach.  The Defendant has engaged lawyers in Hong Kong to rigorously contest the Plaintiff’s action.  He must have been properly advised of the laws in Hong Kong relevant to the giving of undertakings and the consequences of breach.  By his persistent breach, he must be taken to have intended not to honour his 2^nd Undertaking.  He has no burden to prove his innocence.  But if he intends to raise casual or accidental breach to negative mens rea under damaging circumstances as in the present case, it is not enough to rely solely on his 4^th Undertaking.  He may have to come forward to adduce evidence about his mental state so as to tilt the balance in his favour.  He has given an affirmation. He felt comfortable not to deploy it.  That is his choice.   I am not going to consider it.  On the state of the evidence, I am well satisfied that the Plaintiff has proved mens rea beyond reasonable doubt.

Conclusion

89.  For the above reasons, I am satisfied beyond reasonable doubt that the Defendant was in contempt of this court for his breaches of undertakings as incorporated in the Subject Order dated 22 February 2013. 

90.  Mr Shieh has made submissions on the appropriate penalties for breach of court order but reserved further submissions upon this court’s finding on liability.  Ms Eu has not made any submission on penalty.  In fairness to the Defendant, it would be appropriate to adjourn for sentence.  

91.  Court orders are made to be complied with. Contempt of civil court orders is a serious matter.  Given his “catch me if you can” attitude, his deceptive conduct in relation to the breach of the 1^st Undertaking and the persistent breaches in relation to the 2^nd Undertaking, the inference is that the breaches were not technical but deliberate and made with the purpose of flouting the court’s order and defeating the interest of the Plaintiff.  These are aggravating features.  These breaches are contumacious.  Custodial sentence is inevitable.  I therefore issue a warrant for his arrest, with bail allowed at $2 million.

92.  Accordingly, I adjourn this summons to a date to be fixed for sentence, in consultation with counsel’s diary, being not later than 18 January 2016.  In default of agreement reached before 31 December 2015 as to the date of the adjourned hearing, the hearing shall be adjourned to 9:30 am on 18 January 2016.