SINO WOOD INVESTMENT LTD v. WONG KAM YIN

HCA 307/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 307 OF 2002

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J U D G M E N T

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1. There are two applications before me seeking an Order for Committal pursuant to O. 52. R.3, first, of the Defendant in these proceedings Wong Kam-ying, (Miss Wong) and second, Mr. Paul Lee Yat Kwong (Mr. Lee).

Background:

2. The allegation made against Miss Wong is that on 26 May 2003 at around 5:33 p.m. she knowingly acted in disobedience to a Prohibition Order dated 24 May 2003, granted by Master A Ho, (the Order), after a sealed copy, endorsed with a penal notice, had been served on her personally, by taking steps to leave Hong Kong via the Macau Ferry Terminal in Sheung Wan, Hong Kong.

3. The allegation against Mr Lee is that on 26 May 2003 at around 4:32 p.m., between Hang Seng Building and Crocodile House, Connaught Road Central, Hong Kong, he knowingly obstructed and/or attempted to obstruct a process server in the execution of his duty in serving the Order on Miss Wong and/or abused and/or assaulted the process server whilst in the execution of his duty aforesaid, with the intention of preventing and/or deterring the service of process on Miss Wong and interfering with the administration of justice.

4. The applications for committal arose in the context of on-going litigation between the Plaintiff company and Miss Wong. In that litigation it is the Plaintiff's case that while Miss Wong was a Director of the Plaintiff company, she misappropriated some RMB42.7 million. Miss Wong's case is that the sum of RMB42.7 million was "the Plaintiff's reinvestment in various items of business". It is alleged by the plaintiff that she has not yet revealed just where those "reinvestments" have been made.

The Prohibition Order is made:

5. On 24 May 2003, upon the Plaintiff's application, the Master granted the Order against Miss Wong restraining her from leaving Hong Kong. The Order is in following terms:

"It is ordered that the Defendant, Wong Kam Yin (also known as Wong Kam Ling and Mandy Wong) (holder of Hong Kong Identity Card No. XXXXXXX(X)) is prohibited from leaving Hong Kong."

6. Application for the Order had been made on 23 May 2003, but the Order was not immediately granted as the Master who considered the matter had directed the Plaintiff to file a further affirmation. That was done on the morning of Saturday 24 May 2003, and the Order was then made. By that time, the filing counter and the shroff were closed and the prescribed filing fee could not then be paid. However, due to the urgency of the matter, the Plaintiff's solicitors obtained a sealed copy of the Order from the Clerk to the Master. The Order was dated 24 May 2003 and that date was endorsed below the seal of the chop which was fixed to the first page of the document.

7. The solicitors endorsed a penal notice on the back sheet of a number of copies of the Order, intended for personal service. The penal notice, on the Order served, is in the following terms:

"PENAL NOTICE.

If you the within named Defendant Wong Kam Yin (also known as Wong Kam Ling and Mandy Wong) neglect to obey this order or disobey this order, you may be held to be in contempt of court and liable to a process of execution to compel you to obey the same and/or liable to imprisonment.

Dated of May 2003.

Allen and Overy, solicitors for the Plaintiff."

The facts:

8. The following facts which I set out, surrounding the circumstances of the service of the Order, are not in dispute. Neither Miss Wong nor Mr. Lee elected to give evidence and the evidence of the process server, Mr. Cheng Wai-kee, (Mr. Cheng), was virtually unchallenged.

9. The solicitors for the Plaintiff company instructed a process server, Mr Cheng to effect service of the Order on Miss Wong. To do this they gave him a number of sealed copies of the Order each with the penal notice endorsed on the back sheet. He was also given photographs of Miss Wong to assist him in identifying her. At around 8:15 a.m. on 26 May 2003, Mr Cheng went to the lift lobby on the ground floor of Hang Seng Building, Connaught Rd., Central in which the offices of Miss Wong's solicitors were located. He was to wait there to see if she came into or out of the building in order that he may effect service.

10. At around 4:30 p.m. on that day he saw a woman come out of the lift with another woman and two men. He said he saw the four people stand in the lobby for a moment and they then left the lobby walking quickly towards an escalator leading to Connaught Road. Mr. Cheng was by this time satisfied that one of the women in the group was in fact Miss Wong. It is not in dispute that she was one of the people in the group.

11. The four people left the building and turned left to walk towards Western. Mr Cheng followed them at the distance of about 20 feet. He said that they walked as a group with Miss Wong in the middle. The group crossed a side street, Queen Victoria Street, and continued quickly on Connaught Road, stopping outside the Hang Seng Bank Headquarters Building. There they tried to hire a taxi. Mr Cheng went up to the group. Behind Miss Wong was one of the men and the other woman, and in front of her was the other man. Mr Cheng said that the people behind Miss Wong were about a foot behind her, and the man in front, about two feet in front of her.

12. Mr Cheng went up to the group and reached out with the Order in his hand touching Miss Wong on the left shoulder with the document. He said:

"Wong Kam Yin, this is a Court Prohibition Order prohibiting you not to leave Hong Kong. You can ask your solicitor for the details."

13. He said that he was about a foot away from Miss Wong when he made this statement. He then tried to put the document in her hand but she refused to accept it, and pushed it away. As she did she said:

"Who are you, I don't know you."

Mr Cheng responded by saying:

"I am a representative of Sino Wood Investment Limited to serve a Prohibition Order on you."

14. The group had failed to hire a taxi and, again as a group, walked in a hurried manner towards Western. They all, including Mr Cheng, who followed, crossed Jubilee Street, and came outside Crocodile House. Again the group tried to hire a taxi. Taking the opportunity that they had stopped, Mr Cheng went up to them and came alongside Miss Wong. He said that one of the men shouted at him to stop and asked Mr Cheng what the matter was. Mr Cheng responded by saying that he had to serve a Prohibition Order on Miss Wong. That man asked to see the document. It is not in dispute that that man was Mr Lee. Mr Cheng gave him the document. Mr Lee glanced at it, and, using one hand and his body, screwed it up and threw it on the ground.

15. By this time, a taxi had stopped and Miss Wong and the other two members of the group were in the process of boarding the taxi. Mr Cheng said that he immediately picked up the document and tried to give it to Miss Wong. He walked up to the taxi for that purpose. Mr Lee then pushed Mr Cheng once on each shoulder with the flat of his hand, and then used his forearm to push Mr Cheng in his abdomen. These actions were intended to prevent Mr Cheng gaining access to the taxi and delivering the document to Miss Wong.

16. The taxi with Miss Wong on board left, and Mr Lee walked back the way he had come and turned south into Jubilee Street, with Mr Cheng following. There then followed a discussion between Mr Lee and Mr Cheng, and the police were called. However none of these subsequent events are relevant to the issues that I have to consider.

17. It is not in dispute that thereafter Miss Wong went to the Macau Ferry Terminal where, in possession of a ferry ticket, she entered the restricted area and approached the Immigration Counter, presenting her identity card in order to pass through immigration and board the ferry. When informed of the Order she claimed that she was ignorant of it, and after some advice from Immigration Officers, she chose not to go further, and left the ferry terminal building.

Was service of the order effected?

18. Mr Griffiths accepted that by touching Miss Wong on the shoulder with the document, and informing her of the nature of the document, Mr. Cheng had effected service of the Prohibition Order. However Mr Griffiths raises a point in respect of the penal notice, which I will deal with later.

Civil or Criminal Contempt?

19. There is no doubt that the allegation against Miss Wong is an allegation of civil contempt of court. Civil contempt involves disobedience of a court order: see Arlidge, Eady and Smith on Contempt, 2nd edition, para. 3-1.

20. Mr. Bleach says that the actions of Mr. Lee in assaulting Mr. Cheng, albeit technically, and further, preventing Mr. Cheng from leaving the Order in Miss Wong's presence, by hindering his access to the taxi, are actions which obstructed the service of process on Miss Wong and interfered with the administration of justice, which constituted a contempt of court.

21. Although Mr Griffiths contended that the allegations against Mr Lee were an allegation of civil contempt, I am satisfied that they constitute an allegation of criminal contempt. It is plain that the allegations made against Mr Lee are allegations of interference with the administration of justice. In Arlidge, para. 11-34, the essence of criminal contempt is described as interference with the administration of justice.

22. It is right that Mr Lee is not a party to the Order. That notwithstanding, he is still capable of committing contempt in relation to the Order. The matter is best put by Lord Bingham CJ in AG v Newspaper Publishing [1997] 3 ALL ER 159 at 166:

"...if a third party, with the requisite knowledge and intent, so acts as to frustrate or undermine or set at nought the basis upon which a Court had determined that justice should be administered, such third party is guilty of contempt because he thereby interferes with the due administration of justice."

Notification of the penal notice:

23. It was Mr Griffiths' submission that before Miss Wong can be guilty of contempt, it must be established that she was aware of the consequence of breaching the Order. In the context of this case, he says that means that she must be fully aware of the terms of penal notice. Where a person is present when an order is made and the judge, as he usually will in such circumstances, states that a breach of the order will result in contempt proceedings and possibly imprisonment, there can be no doubt that the person has been made fully aware of the consequences of a breach of the order. It is usually equally the case where a person physically receives an order upon which is endorsed a penal notice, although Mr Griffiths says that that will not always be so. In the present case, although service of the Order has been effected, Mr. Griffiths says that it is not established that Miss Wong was fully aware of the consequences of breaching the Order because the specific terms of the penal notice were not drawn to her attention by the process server.

24. The submission is made in reliance upon the following passage from Ma J (as he then was) in City Base Property v Kam Kyun Tak No. 1 [2003] 2 HKC 98 at 102D:

"However, it is in my view essential that the alleged contemnor shall have been told, whether by being present in court or by being notified by telephone, telegram or otherwise, that the consequences of breaching any order made is to be held in contempt of court and liable to a process of execution...... In my view, whether the penal notice is made in writing or given orally the alleged contemnor must be made aware of the consequences of a breach of the relevant order."

25. Mr Griffiths relies further on P v P (Contempt of Court) [1999] 2 FLR 897 at 904 per Sedley LJ:

"What it is necessary that a potential contemnor should understand is that an order has been made forbidding him to do certain things and if that he does them he may well be punished."

26. It is beyond argument that the document, properly served on Miss Wong, contained the appropriate penal notice. Miss Wong rejected the document, electing merely to glance at the front page, and then disregarding it, pushing it aside. Mr Griffiths was obliged to acknowledge that the consequence of his submission was that in such circumstances there was then a further burden on the process server to state orally words to the effect of the penal notice. Only then he said, could it be established that the alleged contemnor had been told of the consequences of breaching the Order. I reject this submission. The submission disregards the word "otherwise" in the passage cited from Ma J.

27. I am not required to decide upon Mr. Griffiths example that lack of knowledge may be an answer for a person who has received an order, then placed immediately in a brief case without reading it, intending to read it later, and then had the brief case stolen before having an opportunity to read the document, and then does an act in defiance of the order, to say that they were not aware of the terms of the order. But lack of knowledge of the consequences simply cannot be an answer where a person deliberately chooses not to read the terms of an order. In Re Witten, (an infant) (1887) 4 TLR 39, Kay J dealt with a case where a man said that he was not aware of precise terms of an order prohibiting him from taking certain steps, saying that he had not seen it, and the effect of it had only been communicated to him by his solicitor. Kay J. had this to say:

"(I cannot) for one moment accept the excuse the father had made that he had not seen the order, and had therefore disobeyed innocently. If a man did not choose to see the terms of an order which had made against him, and chose to act without seeing the terms of the order, he must take the consequences. Carelessness in failing to make himself acquainted with the terms of the order was as gross a contempt as if he had disobeyed the order."

28. To accept Mr. Griffiths' submission would be to grant a charter to anyone served with an order to merely disregard it, never read it, to close their mind and ears to anything said to them, and then plead that they had no knowledge of the matter, thereby avoiding any responsibility. I am satisfied that Ma J did not intend such a consequence. His use of the word "otherwise" makes that clear. Here Miss Wong was duly informed of the terms of the penal notice by actual service of the order containing the penal notice. She elected not to read it.

29. Hong Kong is a civilised society in which the conduct of citizens is governed by the rule of law. In such a society citizens have a right to have their disputes determined by courts of law in which all will, pursuant to both the Basic Law and the Bill of Rights, be treated equally and fairly heard. Such a right carries with it a corresponding responsibility to accept and submit to the rules of society and the rules prescribed for the administration of justice. That acceptance, and submission, requires persons involved in litigation to accept service of documents upon them, and not to engage in devices to avoid service. The service of documents is part of the litigation process and part of the administration of justice. If a person chooses deliberately, as here, to avoid the physical receipt of documents and to disregard the terms of a document properly served upon them, then they do so at their own risk. The courts will not offer support to those who, by a device, as here, deliberately set about to frustrate the administration of justice.

30. It is right as Mr Griffiths says, that the letter from the Immigration Department stated that Miss Wong claimed that she was ignorant of the Order made against her, but, in the circumstances of this case, no weight can be placed upon that assertion. The unchallenged evidence was that when Mr. Cheng told her that the Order prevented her from leaving Hong Kong, she was about two feet away from him. The only, and overwhelming, inference is that she heard that statement. There is no assertion from her to the contrary. I find that Miss Wong clearly heard what was said to her, and that when she went to the Immigration Counter at the Macau Ferry Terminal, she knew the Court had made an order prohibiting her from leaving Hong Kong.

31. I am satisfied beyond reasonable doubt that Miss Wong knew that an order had been made preventing her from leaving Hong Kong, and that the penal notice endorsed upon the order had been adequately drawn to her attention by proper service of the document upon her. There is no additional burden on a process server, should a person served elect not to physically receive a document served upon them, to say anything other than that sufficient to inform them of the nature of the document. By stating that the order prohibited her from leaving Hong Kong, Mr. Cheng had adequately discharged his duty, and informed Miss Wong of all that she was entitled to know about the document. It was then for her to read the document should she wish to know its precise terms. Having chosen not to read it she must accept the consequences of her actions.

Does an attempt to breach an order constitute a contempt of court?

32. Mr Griffiths' submission was that at its highest Miss Wong's conduct could only be characterised as an attempt to breach the Order, however he did not concede that that conduct constituted a breach of the Order. Mr Bleach asserted that the conduct of Miss Wong was sufficiently proximate to leaving Hong Kong to constitute an attempt to breach the order and that such conduct was a contempt of court.

33. With respect to counsel, and the way in which the case has been argued, I do not think it is appropriate to view the issue in terms of whether or not there was an attempt to breach the order. There is a modest amount of academic discussion on the issue as to whether or not there may be an attempt at contempt. The learned editors of The Law Of Contempt Borrie & Lowe 3rd edition, 22, say that the matter is still to be authoritatively resolved. The Court of Appeal in Balogh v St Albans Crown Court [1975] 1 QB 73 were divided on the issue. In England, where criminal contempt is the subject of specific legislation, the Contempt of Court Act 1981, Arlidge para 11-23 is of the view that the issue is now resolved by the Criminal Attempts Act 1981.

34. It is I think, more useful to examine the conduct of the alleged contemnor, not in terms of the law relating to an attempt, but simply whether the conduct complained of constitutes a breach of the Order.

35. Here the terms of the Order were that Miss Wong was "prohibited from leaving Hong Kong". Clearly, if a person is in the process of committing the act which they have, by court order, been prohibited from doing, then they are in breach of the order. Completion of the act is not necessary. In the context of the Order, the word "leaving" is a participle describing the act she was enjoined not to carry out. In my view the act of leaving Hong Kong is not effected solely and simply by physically crossing the territorial boundary of Hong Kong, whether that boundary be on land or on sea. Some acts in relation to the act of leaving Hong Kong will be merely preparatory and will not constitute the act of leaving Hong Kong. Those are acts such as packing a bag, the purchase of a ticket to travel either by land, sea or air, and probably even travelling to the appropriate place of departure according to the mode of travel chosen. But I am satisfied that once a person enters into the area that is restricted for departing passengers only, and presents a travel document to an Immigration Officer, thereby seeking permission to pass beyond the immigration point to board the means of transport, that person has commenced the act of "leaving Hong Kong". When Madam Wong presented her Hong Kong Identity Card to the Immigration Officer, she was in the process of "leaving Hong Kong" and was thereby then performing the very act she had been prohibited to perform.

36. I am satisfied beyond reasonable doubt that Miss Wong knew that she was prohibited from leaving Hong Kong and that she proceeded to do so in disregard of the Prohibition Order. I find that in so doing she has committed a contempt of court.

Do Mr. Lee's actions constitute contempt of court?:

37. In relation to Mr Lee, Mr Griffiths' submission was that to constitute contempt the behaviour complained of must:

(a) occur in the course of the official duty of the process server; and

(b) be of a serious and not a comparatively trivial nature.

38. Mr Griffiths' submission was that service had been effected by touching Miss Wong with the document and informing her of its nature, and that consequently the process server had completed his task and had nothing more to do. Mr Griffiths said that as the task was completed anything that happened after that event could not constitute a contempt of court, although it might constitute a criminal offence. The submission disregards the long established requirement that if a defendant refuses to take a copy of the document, it is not necessary to leave it in his actual physical possession, but it is sufficient to inform him of his nature and throw it down in his presence. The notes to O. 65 R. 2 in HKCP 65/2/3 provide:

"If the defendant refuses to take the copy writ it is not necessary to leave it in his actual corporeal possession, but it is sufficient to inform him of its nature and throw it down in his presence (per Patteson J in Thomson v Pheney (1882) 1 Dowl. 441):"

It is necessary to look carefully at the facts in relation to the requirement to "throw it down in his presence".

39. Mr. Cheng had touched Madam Wong with the document and informed her of its nature. She pushed it away and refused to take it. Mr Lee then asked for and was given the document. I find Mr. Cheng's action in giving it to Mr. Lee to be reasonable. It was plain that Mr Lee was with Madam Wong and was associated with her. Mr. Lee looked at the Order, screwed it up and threw it on the ground. As he was doing this, Miss Wong had entered the taxi and was above to leave. Mr. Cheng had not yet been able, having regard to Miss Wong's refusal to take the document, and to Mr. Lee's disposal of the document, to throw it down in her presence. Mr. Cheng picked up the document and endeavoured to move to the taxi in order that he might throw it down in her presence, which was then inside the taxi. It was at that this point that Mr Lee intervened, assaulting Mr. Cheng and preventing him from gaining access to the taxi in order to leave the document in Madam Wong's presence. The taxi then left. Plainly, nothing further was to be achieved by Mr. Cheng. It would have been a futile gesture to throw the document on the ground where the taxi had been. But so long as Mr. Cheng was endeavouring to get close enough to Miss Wong to throw the Order down in her presence, he was acting in the course of his duty as a process server.

40. Having regard to these facts it is plain that not only has Mr Lee assaulted a process server in the course of lawfully serving process, but he has physically hindered and prevented the process server from leaving the document with the person to be served. I am satisfied beyond reasonable doubt that the assault and the physical handling of Mr. Cheng occurred in the course of his official duty as a process server.

41. I am equally satisfied that this is no trivial matter. It is right that in Adams v Hughes, (1819) 129 ER 632 the court said that:

"...they would lay down no rule, whether every collaring and shaking of an officer, however improper such conduct were, should or should not be deemed a contempt of court..."

In that case service of the document had been effected. The criminal law is well capable of dealing with an assault on a process server following effective service of a court document. But here there has been a deliberate device adopted by Miss Wong, Mr. Lee and the other two people to attempt to shield her from service and thereby frustrate the Court's process. That, combined with the fact of an actual assault on the process server, albeit of a technical nature, takes this matter beyond the trivial and into the realm of serious conduct. The administration of justice and the authority of the Court would be seriously undermined if such conducted were to be considered as trivial and consequently ignored.

42. I am accordingly satisfied beyond reasonable doubt that Mr Lee has committed a contempt of court in his assault upon, and his hindering of, Mr. Cheng in the course of his attempting to serve the Order on Miss Wong.

Should the Prohibition Order have been translated?:

43. Mr Griffiths argued that as the Order was in English only it was not a sufficient document to meet the requirements of the law. He said it this was in breach of Practice Direction 24.2 which contains following terms:

"2. This practice direction shall apply to a party or intending party to an action proposing to serve a court form on a party or an intended party, who was likely to be Chinese-speaking and who may not be proficient in English."

44. Mr Griffiths submitted that as Miss Wong had a Chinese name, it could be assumed that she was Chinese-speaking, but it could not be assumed that she was proficient in English. He said that there was no evidence that she was proficient in English and accordingly the document to be served upon her ought to have contained, at the very least, in Chinese, the endorsement set out in paragraph 4 of the Practice Direction (to the effect that the document was a legal document and that the consequences of ignoring it may be serious), and at best should have wholly been in Chinese and with the penal notice in Chinese.

45. The submission is quite without foundation. The Practice Direction leaves it to the judgment of those advising the party proposing to serve the court form as to whether or not it is appropriate that it should be translated into Chinese. The evidence established that this is a long running matter and the parties have been at loggerheads for some considerable time over complicated commercial issues. It is plain that those advising the Plaintiff would have had ample time to assess the proficiency, or lack thereof, of Miss Wong in English. In those circumstances, in the absence of evidence to the contrary suggesting that she was not so proficient, I am satisfied that there was no need to translate the documents into Chinese pursuant to the Practice Direction.

46. In any event, no harm was done by any failure to translate the document, for Miss Wong declined any opportunity to receive it and to consider its terms. In that circumstance the submission was quite audacious.

Disposal:

47. It follows that I find that both Miss Wong and Mr. Lee are guilty of contempt of court. It is clear that the Court has a discretion in deciding whether to grant an order for committal: see Century Equipment Company Ltd. v Excellent Electrical Company Ltd. HCA 2542/98 per Yeung J (as he then was). In that case committal was sought, after the grant of a default judgement against the defendant, for failure to comply with orders for discovery and answering interlocutories at an earlier stage in the proceedings. After judgment a committal order would have served no purpose as the discovery and other answers were no longer required, and, in the circumstances the was plainly no need to punish the defendant, there being no adverse consequences from the breach of the orders.

48. The circumstances of the present case are quite different. Here Miss Wong has engaged in contumelious disregard of an order and Mr. Lee has engaged in conduct deliberately designed to frustrate the administration of justice.

49. In relation to Miss Wong, Mr. Griffith made the further submission that the jurisdiction in civil contempt was such that the only orders that could be made were orders designed to secure compliance with the order that had been breached. As Miss Wong had not left Hong Kong and was still in Hong Kong he said that therefore no further orders need be made as she was in compliance with the order.

50. There is clearly a duality of purpose in punishing civil contempt. It is right that orders can be made compelling obedience to a Court order but there are many examples of the imposition of a penalty for a contempt that has already been committed, even if there is no threat of repetition, in order to uphold the authority of the Court and for the sake of the proper administration of justice. If authority for the proposition is required it may be found in cases such as AG v Times Newspapers [1974] AC 273, at 307H-308A; Lightfoot v Lightfoot [1989] 1 FLR 414 and Re Grantham Wholesale Fruit Vegetable & Potato Merchants Ltd. [1972] 1 WLR 559 at 565F.

51. Having regard to all of the circumstances I am satisfied that this is an appropriate case to issue orders for committal.

52. Miss Wong and Mr. Lee must both appear before me at 10.00 a.m. on Tuesday 11 May 2004 when I will hear counsel as to the particular form those orders should take. I will hear counsel on costs at the same time.

Remarks:
Appeal by the Defendant to Court of Appeal. Appeal allowed. Please refer to the appeal judgment of CACV000130/2004.