NICHOLAS PAPPADIS AND ANOTHER v. CHAN SHING SHEUNG BARRY AND OTHERS

M.P. No. 2005 of 1988

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Appearances: Mr Peter Graham instructed by M/s. Denton Burgin & Warrens for the 1st & 2nd Applicants

                      Mr Michael Bunting instructed by M/s. Baker & Mckenzie for 1st, 2nd & 3rd Respondents

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ORDERS PRONOUNCED

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1. I will deal first faith the 3rd respondent, Mr Cris Chiu-yin YIP. Court orders must be obeyed. Those who are unbecoming enough to risk disobedience deliberately can expect unpleasant consequences. I have described your involvements in my written judgment and I do not propose to repeat them.

2. I have given this matter my concerned consideration. I have taken into account also what has been said on your behalf by counsel. In your case, you do deserve a period of imprisonment.

3. Cris Chiu-Yin YIP, you are found guilty of contempt of court in that you knowingly defied the order made by Macdougall J. on the 28th September 1988 for disclosing the assets of H.K. Lotus Scientific Development Ltd., including, in particular, its bank accounts, by withholding yourself and/or assisting the said company to withhold information of that company's bank accounts in your affirmation made on the 30th September 1988.

4. I order that for your said contempt, you, Cris Chiu-Yin YIP, do stand committed to the Victoria Remand Prison or such other prison as the Commissioner of Correctional Services directs, to be there imprisoned for 14 days. I have taken into consideration the stringent and full order of costs about to be made against you in assessing the proper term of your incarceration.

5. You, Cris Chiu-yin YIP, are further found guilty of contempt of court as a director of the said company which neglected to obey the said order of Macdougall J. by failing to disclose fully its assets, that is to say, omitting its bank accounts, in the manner and within the time as ordered by the judge.

6. I order that for your said contempt, you, Cris Chiu-Yin YIP, do stand committed to the Victoria Remand Prison or such other prison as the Commissioner of Correctional Services directs, to be there imprisoned for five days, to run concurrently with your said term of imprisonment of 14 days.

7. You, Cris Chiu-yin YIP, are further found guilty of contempt of court as a director of the said company which disobeyed the Mareva injunction granted in the order of de Basto J. made on the 8th September 1988 by dealing with its 3 million joint venture shares in Everbright Lotus C.P.T. Manufacturing Ltd. on the 19th September 1988 with the result that the same were delivered by you to the Hong Kong & Shanghai Banking Corporation for custody on terms.

8. I order that for your said contempt, you, Cris Chiu-Yin YIP, do stand committed to the Victoria Remand Prison or such other prison as the Commissioner of Correctional Services directs, to be there imprisoned for a further term of three days, to run consecutively to you said 14 days' imprisonment for your said contempt, as I have earlier explained to you, in withholding yourself and/or assisting the said company to withhold information of its bank accounts.

9. I further order that for your said contempt in the dealing with the three million joint venture shares, the further term of three days' imprisonment imposed by this order shall not be carried into effect, or otherwise executed if you pay a fine of $20,000 within five days from today. What it means is, for your contempt in relation to the dealing with the three million joint venture shares, you are to go to prison for three more days unless you pay a fine of $20,000 in five days.

2nd Respondent, Norman JARRETT

10. So far as you are concerned, the company H.K. Lotus Scientific Development Ltd. was in wilful breach in the sense that it was not casual, accidental or intentional. Your role, as the new General Manager, was passive. No moral blame attaches to your own relative inactivity. Norman JARRETT, you are found guilty of contempt of court as the General Manager of H.K. Lotus Scientific Development Ltd. which neglected to obey the order of Macdougall J. made on the 28th September 1988 by failing to disclose fully its assets, that is to say, by omitting its bank accounts, in the manner and within the time as ordered by the judge.

11. Allegations made against you have, in part, failed. Some allegations have been abandoned. For your passive role of inactivity, I am unable to say that you deserve any real punishment. I make no order and no order as to costs, either in your favour or against you. The extra contribution in costs that you are to bear in these proceedings and the anxiety you no doubt have experienced are, in my view, just punishment in your case.

12. I further order that the 3rd respondent, Cris Chiu-yin YIP, to pay the applicants' costs irrespective of the merits in proceedings resulting in costs reserved on the 31st October 1988 and irrespective of the merits in the question of costs for failed allegations, such costs to be taxed on a solicitor and client basis with, what we all understand as, the burden reversed.

13. I think, gentlemen, it would be helpful to mention the case of Parsons v. Nasar, Times Nov. 19, 1988 where it was said in the English Court of Appeal that "it was not open to the prison authorities to decide for themselves when (a contemnor) should be released, or to release him early without an order of the Court to that effect". At this moment, I wish merely to draw attention to it without further observation.

14. As for Mr CHAN Shing-sheung, Barry, the 1st respondent, none of the accusations has been proved against him. It was said, inter alia, that his own description of Assistant General Manager has brought upon himself these proceedings against him by the applicants, but Mr Chan has, from the early stage of the proceedings, stated his case. The allegations against Mr Chan were, nevertheless, pursued, matters were contested, and the applicants have lost. The applicants must, in the circumstances, bear the costs of the 1st repondent in these proceedings, including costs reserved on the 31st October.

15. I order, in respect to the 1st respondent, that the applicants to pay the 1st respondent the costs I have mentioned.