CHAN HIN CHEUNG v. KWAN YAT HUNG

HCMP 106/2024

[2024] HKCFI 2576

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 106 OF 2024

________________________

BETWEEN

________________________

________________________

D E C I S I O N

________________________

1.  This is the substantively hearing of an Originating Summons dated 19 January 2024 (“the OS”) issued by the plaintiff for his application for an order of committal to prison of the defendant by reason of his failure to comply with §§2 and 3 of the order of Madam Justice Lisa Wong dated 27 October 2023 made in HCMP 1861/2022 (“the Order”).

2.  §§2 and 3 of the Order read,

(§2) The defendant do deliver possession and control of Ground Floor, 17 Cooke Street, Hung Hom, Kowloon (“the Hung Hom Property”), Hong Kong to the plaintiff in the state and condition he found it when he entered into possession of the same within 28 days from the date of the order; and

(§3) the defendant do furnish a true and perfect inventory and account of the estate of the late Madam Wong Siu Pik (“the Estate”), to be verified by affirmation by the defendant and supported by documents within 28 days from the date of the order.

3.  Leave to commence committal proceedings was granted by Madam Justice Lisa Wong by her order dated 11 January 2024. The solicitors acting for the plaintiff made many attempts to serve on the defendant personally the OS and the related documents from 22 January 2024 to 5 March 2024 but in vain.

4.  Eventually, on 20 March 2024, at the first hearing of the OS, the plaintiff obtained an order from this court (“the Service Order”) that personal service of the OS and all the related documents be dispensed with and that service of the said documents together with the notice of the adjourned hearing be good and sufficient by posting up a notice at the address of the Hung Hom Property and by ordinary post to the defendant’s residential address at a public housing estate in Kwai Chung.

5.  I have read the 2^nd Affirmation of Kwok Ching Nam Manley and I am satisfied that service of OS and the related documents including the notice of the adjourned hearing of the OS was properly effected on the defendant pursuant to the Service Order. I am satisfied that the defendant has due notice of the present hearing but fails to appear. Thus, I should proceed with the hearing of the OS in his absence.

6.  The deadline for the compliance of the obligations in these two paragraphs fell on 24 November 2023. The defendant had done nothing to comply with the same. Hence the present proceedings were necessitated.

7.  Subsequent to the grant of the Order, the plaintiff obtained a Writ of Possession dated 20 February 2024. On 16 May 2024, the bailiff successfully enforced the Writ of Possession and delivered possession of the Hung Hom Property to the plaintiff.

8.  The legal principles relating to proof of civil contempt are well settled. Mr Hu, for the plaintiff, refers to the three-stage test explained by Coleman J in Trends Trade Hong Kong Limited v Artur Shevchenko [2019] HKCFI 2936 (§42):

“First, it is necessary to construe the Court’s order, to ascertain its meaning and operation. Second, it is necessary to determine whether the defendant has in fact complied with the order. Third, it is necessary to consider whether any failure to comply was accompanied by the state of mind required to establish punishable contempt.”

9.  The terms of the Order are clear. The Order was made when the defendant was legally represented by two counsel. It cannot be disputed that the defendant has failed to do anything to comply with paragraph 2 and paragraph 3 of the Order, ie, delivery of vacant possession of the Hung Hom Property and furnishing a true and perfect inventory and account of the Estate to be verified by affirmation and supported by documents by the deadline or at all.

10.  In the absence of any explanation furnished by the defendant for his failure to comply with the Order after being served with the same, this court can only conclude that the defendant knowingly breached the Order by his intentional default. In fact, there is nothing to suggest that his non-compliance is merely accidental.

11.  I am satisfied that the plaintiff has discharged his burden of proof in this application and the defendant’s contempt is proved beyond reasonable doubt.

12.  In the circumstances, this court is minded to make an order of committal and I order that a warrant for arrest be issued against the defendant.

13.  I also make an order that the order for committal shall not be executed if the defendant complies with paragraph 3 of the Order within 14 days from this Decision and there be liberty to apply.

14.  Costs should be reserved.

15.  Lastly, I thank Mr Hu for his helpful assistance and his clear and fair presentation of the plaintiff’s case.