CEDAR BASE ELECTRONIC LTD. v. WONG CHAK KUNG t/a HUNG FUNG ELECTRONICS & TOYS MFY. CO. AND ANOTHER

1999, No. HCA 757

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 757 OF 1999

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D E C I S I O N

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1. On 14th January 1999 I gave an order against Hung Fung Electronics & Toys Mfy. Co. and an order against Win (Takbo) Electronics Co. Ltd. These orders are commonly known as Anton Pillar Orders. They permit the executing solicitors to request entry into premises and to conduct searches for relevant evidence with the view to preserving evidence for proceedings in court.

2. In Action No. 757/99 Miss Marlene Courbet was named as the executing solicitor. On 15th January 1999 at about 2:00 p.m., Miss Courbet arrived at the office premises of the 2nd Defendant, namely Win (Takbo) Electronics Co. Ltd. There she met Madam Ho Ying who is the 2nd Respondent in this Notice of Motion for committal. Madam Ho was and is a director of Win (Takbo) Electronics Co. Ltd. and is the wife of the other director Mr. Wong Chak Kung. It is not disputed that Miss Courbet explained the contents of the court order on which a penal notice had been endorsed. It is not disputed that it was also interpreted to Madam Ho and there was also a Chinese version of the Order which Madam Ho had, which she could read and did read intermittently. This explanation and interpretation took until about 3:15 p.m. because Madam Ho was attending to business from time to time.

3. From 3:00 p.m. to 5:00 p.m. within the two hours allocated under the court order, the company and Madam Ho did not, or were not able to, retain solicitors to act for the company. Madam Ho did, however, speak to the other director Mr. Wong over the telephone, in the course of which she informed him what had happened.

4. At about 5:00 p.m. and this is not disputed, Madam Ho did not permit Miss Courbet to commence the search because she requested Miss Courbet and her party to leave, even though the court order permitted Miss Courbet and her party to stay until 8:00 p.m. in order to conduct the search.

5. At para. 27 of Miss Courbet's affidavit, she says:

"Through my interpreter I then explained to Madam Ho that I had served and explained the said order to her as a director of Win (Takbo) Electronics Co. Ltd. She was a person in charge of the said premises. Therefore, it must be her decision whether she asked us to leave the said premises. I also again explained to her the notice and para. 1(1) on p.4 of the said order. I also referred her to the penal notices at the back sheet of the said order and again explained the contents thereof to her. However, despite that Madam Ho still insisted on [the executing solicitor's] departure."

It is, therefore, clear that the order has been properly served on both the company and Madam Ho, that Madam Ho understood the order and she intended the consequences of her conduct. It was not an accidental failure to comply. I hope she appreciates by now that this is a serious matter.

6. At the time according to Miss Courbet's affidavit, Madam Ho said that Mr. Wong had told her to ask the solicitors to leave, but in Court today Madam Ho herself has said that this was her own decision. If it was her own decision then she will have to bear the consequences of it.

7. This is an intentional flouting of the order of the Court. Orders of the Court are not to be disobeyed, otherwise the rule of law will just be as thin as the piece of paper they are written on. The full force of law must be brought to bear on persons who intentionally refuse to comply with court orders.

8. In ordinary circumstances, I would have immediately sentenced you to a term of imprisonment, and this is something I have seriously considered. However, I have taken into account the fact that you have just delivered a baby, and it is very fortunate for you, Madam, that your baby has been born just less than a month ago, and that you are living with the baby. Otherwise, I would have had no hesitation whatsoever sending you to jail, and I would like you to know that there are previous cases where people have been sent to jail for between one and eight months for contempt by at least two or three other judges. I hope you do not take this casually.

9. In the consequences, I will order that there be a fine of $50,000.00 against the company and a separate fine of $30,000.00 against yourself to be paid within seven days, and you will also have to pay costs to the Applicant on an indemnity basis to be taxed if not agreed. And if that fine is not paid within seven days, I will consider issuing a writ of sequestration against the property of the company and yourself. That means your property and the company's property will be taken possession of by someone else until the fines are paid.