LOKE MUN YEE TERESA v. LOKE KA MING STEPHEN AND ANOTHER

HCMP 1952/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1952 OF 2014

____________

_____________

____________

______________

JUDGMENT
______________

1.  This is an application by the plaintiff to commit the defendants for contempt for breaching an undertaking given in HCA 89/2014 (“the prior action”).

Background in HCA 89/2014

2.  The plaintiff is the sister of the defendants. The parties have had dispute over their parents’ estate for years.

3.  The plaintiff sued the defendants in the prior action, alleging that they had harassed her and caused nuisance, intimidated her, her servants or agents and trespassed her residence at Repulse Bay (“the plaintiff’s residence”).  She took out a summons for an interim injunction to stop such conduct (“the injunction summons”).

4.  The 1^st hearing of the injunction summons took place on 24 January 2014.  The summons was adjourned upon the defendants’ joint and several undertaking (1) not to visit the plaintiff’s residence; and (2) not to contact her, her servants or agents without going through the parties’ solicitor (“the undertaking”).  (The words underlined shall be referred to as (“the amendments”.)  No injunction was ordered.  The parties were directed to personally attend on 8 May 2014.

5.  On 8 May 2014, the plaintiff came to court with her domestic helper, Susana.  There is no dispute that, before the hearing, there was a conversation between Susana and D1 (“the conversation”); that Susana told the defendants her telephone number and D2 took it down in his mobile phone.

6.  Following the hearing on 8 May 2014, the undertaking was extended and there was no order made in respect of the plaintiff’s summons.  The prior action was regarded as satellite litigation and was stayed pending outcome of an administration action between the parties.

7.  In the present proceedings, the plaintiff relies on what happened on 8 May 2014 to accuse the defendants for breaching the undertaking.  Much turns on the evidence of Susana and the defendants.

8.  The issues before the court are:

A. Whether the defendants had knowledge of the undertaking;

B. Whether Susana was present on 8 May 2014 as a “servant” of the plaintiff;

C. What had happened on 8 May 2014;

D. Whether D1 had “contacted” Susana ;

E. Whether D2 had “contacted” Susana; and

F. Whether the acts of the defendants were in breach of the undertaking.

Credibility of witnesses

9.  The plaintiff, Susana and the defendants have been cross-examined on their affirmations.

10.  Some way into the evidence, the plaintiff chose to use English.  I find that she could understand the questions put to her by defence counsel.

11.  In her affirmation in support of her application for leave to commit the defendants for contempt (“plaintiff-2^nd”), the plaintiff stated:

“… I believe that by pointedly and aggressively reminding Susana that the 1^st Defendant had given Susana this HK$30,000, the Defendants were trying to warn Susana that she should not be giving evidence against the Defendants in court.”

12.  The plaintiff accepts that she only first had sight of Susana’s affirmation in support (“Susana-1^st”) after it was affirmed (and it was on the same day as the plaintiff-2^nd). This was of course in contradiction to §2 of plaintiff-2^nd.  Anyway, the plaintiff could not state the basis for saying that D1 was “aggressive” as Susana (the only relevant witness) never said that D1 was aggressive during the conversation. The plaintiff had exaggerated the evidence. I do not find her to be a reliable witness.

13.  I find Susana to be an honest witness.  She would not give an answer if she could not understand the question.  I am not satisfied that she had compromised her honesty and independence despite being the plaintiff’s domestic helper.

14.  Susana honestly repeated several times that she did not feel threatened by D1when she was cross-examined.  She denied being scared or that the defendants persuaded her not to give evidence.  This effectively refuted §§10 and 12 of Susana-1^st and contradicted §6 of plaintiff-2^nd.  I am left with a strong sense of unease that someone might have put words into Susana-1^st which she affirmed to without being clear as to the contents.

15.  Further, in paragraph 3 of her affirmation, Susana has purportedly set out the contents of the conversation in the form of a series of questions and answers.  She said she had been asked to write them out about a week after 8 May 2015.  Something important had admittedly been left out of that series.  (See paragraph 43 below.)  I do not think the fault lay with her but whoever might have taken instructions from her had not verified with her or clarified how she could have remembered so precisely the sequence of questions and answers. 

16.  Therefore, whilst I find Susana to be an honest witness, I am unable to fully rely on her evidence.

17.  The defendants were evasive and unreliable, as I shall explain in Section C below. 

Background information from the prior action

18.  The plaintiff has put in a lot of evidence from the prior action about the dispute between her and her brothers, dating as far back as 15 years in 2000.   

19.  Mr Hughes (counsel for the plaintiff) relies very heavily on the fact that Susana was not challenged as regards §9 of Susana-1^st, which stated as follows:

“I was nervous and frightened when the 1^st Defendant spoke to me on 8 May 2014 outside the court because, as I have seen him behave on numerous occasions over the years, the 1^st Defendant was angry and was behaving aggressively. As a maid of his family, I felt I could not resist to answer the 1^st Defendant’s questions. I was (and am) also scared of him.”

20.  Except for one incident that happened to the plaintiff 6 years ago, Susana has not specified what those “numerous occasions” were and how D1 acted aggressively. There was nothing to even show, eg that any of the defendants had used violence, intimidation or even verbal abuse on her. In any case, she denies being threatened or scared by the defendants.  The lack of challenge to §9 of Susana-1^st does not justify adducing the background information.

21.  The background information put forth by the plaintiff had the prejudicial effect of smearing the image of the defendants. I decline to take it into account, except only to show what the allegations of the plaintiff in the prior action were, and what led her to issue the injunction summons and the contempt proceedings.

Legal principles on committal for contempt

22.  For civil contempt, it must be proved beyond reasonable doubt that the person was in contempt of court: Kao Lee & Yip (a firm) v Koo Hoi Yan Donald & ors [2009] 5 HKC 35, 49A.

23.  Liability for civil contempt does not depend on contumacious intent.  It is sufficient to prove that the contemnor knew of the facts which are said to make his conduct contempt and that such act was not accidental and unintentional.  It is not necessary to prove that he intended to disobey the order, or that he appreciated that his conduct breached the order: Kao Lee & Yip v Koo Hoi Yan Donand, §§45-46.

A. Whether the defendants had knowledge of the undertaking

24.  Mr Chong (together with Ms Law) accepts that it is not a pre-requisite for committal that the order embodying the undertaking must be personally served or endorsed with penal notice.  This is because, contrary to orders containing injunctions, it is the undertaking, not the order, which requires the giver of the undertaking to act in accordance with its terms; and the person giving the undertaking must be presumed, whether his undertaking was positive or negative, to have known what it was: Hussain v Hussain [1986] Fam 134, CA, 139H; Winner Food Products Ltd v Chung Yat-ming [1989]1 HKLR 371, 376D.

25.  However, Godfrey J was careful to add this: if the contemnor was not present in court when the undertaking was given, the court would require to be satisfied that the contents of his undertaking had been made known to him by his solicitors or counsel after the conclusion of the hearing: Winner Food Products, at 375D-E.

26.  It is thus necessary for the plaintiff to prove not merely that the alleged contemnor knew that an undertaking had been given but also that he knew of the material terms: Re L (A Ward) (Publication of Information) [1988] 1 FLR 255, at 259G-H, Booth J. 

27.  Mr Hughes submits that an undertaking could be given by lawyers with the authority of a party and that party will still be bound.  He relies on the following passage:

“Even where such an undertaking is communicated to the person on whose behalf it was purportedly given, it is difficult to see why he should be bound by it unless there was express or at least implied authority for it to be made on his behalf at the time when it was given. It has been held that a litigant can be treated as bound by an undertaking given on his behalf, and that enforcement by process of contempt will therefore lie against him should he be in breach, without being served formally with an order containing the undertaking…” Arlidge, Eady & Smith on Contempt (4^th ed), 12-200.

28.  With respect, he overlooks the need for the undertaking to be communicated to the party as stated in the same textbook:

“Where an undertaking has been given in court purportedly on a person’s behalf, but actually without his authority or knowledge (even of his being a party to the litigation in question), and without being communicated to him, it should not be enforced by process of contempt.” Arlidge, Eady & Smith on Contempt (4^th ed), 12-198

29.  The defendants had admittedly given express authority to their lawyers to give an undertaking in response to the injunction summons.  The proposed undertaking in their affirmations in the prior action was not to contact the plaintiff.   The ultimate undertaking was not to contact also her servants or her agents.  

30.  The defendants were not present in court on 24 January 2014.  There was no personal service of the January Order on them.  It was only served on their solicitors.

31.  The defendants testified that they were not sure if their solicitors had given them a copy of the January Order or the written decision of 24 January 2014.  D1 said he would go back and search his papers but he never informed the court of the outcome of his search.  D2 denied that his solicitors had told him of the amendments. The defendants were evasive and I disbelieve them. 

32.  Mr Hughes contends that the defendants would have asked their solicitors of the outcome of the 24 January hearing or that solicitors must have advised the defendants of the meaning and importance of the undertaking.  In fact, D1 said under cross-examination that his solicitors gave a “partial” explanation to him that he could not contact his sister. With respect, even if these should have happened, it fell short of the standard of proving beyond reasonable doubt that the defendants were aware of the amendment. 

33.  Accordingly, the defendants’ contact with Susana (if it be so) could not be said to be with knowledge of the terms of the undertaking.  On this ground alone, the application should be dismissed.

34.  For the sake of completeness sake, I have considered other issues as well.

B. Whether Susana was present on 8 May 2014 as a “servant” of the plaintiff

35.  Mr Chong submits that Susana was not acting in the capacity of a “servant” when the alleged contact occurred.  He refers me to various authorities on the meaning of “servant”.  He contends that being in the waiting area outside court no. 32 (“the waiting area”) and talking to D1 were not acts ordinarily and reasonably incidental to her role as a servant.  The employment contract prohibited Susana from working outside the plaintiff’s residence.

36.  With respect to Mr Chong, common sense should be used in the interpretation of the undertaking.  What led to the injunction summons was the defendants’ visit to the plaintiff’s residence on 13 January 2014.  At that time the plaintiff was not there but it was her servant who answered the door and to whom the defendants spoke.  It was clear that the plaintiff’s intention was to bar the defendants’ contact with her servants as well.  See §1(a) of the injunction summons.

37.  In my view, “servant” mentioned in the undertaking was clear and unambiguous.  It would have covered Susana.  She did not cease being a servant at the waiting area, whether to accompany the plaintiff (on the plaintiff’s evidence) or to act as a witness (as directed by the plaintiff).  I see no merit in Mr Chong’s argument.

C. What had happened on 8 May 2014?

38.  According to the plaintiff, Susana was to accompany her to court but I see no reason why she needed the company.  I prefer the evidence of Susana, namely, that she had been told by the plaintiff the day before to appear in court to testify on matters “way back to 2009”.

39.  On 8 May 2014, outside court no. 32, the plaintiff and Susana first had a conference with the plaintiff’s solicitors (Mr Yeung and Mr Wong) inside a conference room.   Susana later left the conference room to make room for the plaintiff’s counsel.

40.  Whilst she intended to take the first row of seats in the waiting area, Susana saw D1 wave to her.  I agree with Susana, judging from the demonstration of the defendants, that it was a “greeting gesture” and not as beckoning.  Susana walked over to the defendants and sat at the 4^th row opposite to them.  She participated in the conversation since she knew the defendants were brothers of the plaintiff. 

41.  There has been no cross-examination of Susana on it, and I find that D1 had said, “The Filipino girl is here.” 

42.  There is no dispute that D1 initiated a conversation with Susana but there is dispute as to the contents of the conversation. 

43.  According to Susana, the conversation was as follows.  The questions were all purportedly from D1 and the answers all from Susana. For ease of reference, I have numbered each question and answer.

“Q1. Why are you here? Why did she (Plaintiff) bring you here?

A1. Mum brought me here.

Q2. What is the purpose of bringing you here?

A2. Mum wants me here to testify you slapped Mum Teresa’s face 3 years ago.

Q2A. Never mind. Just tell the truth. (“the omitted words”; added by Susana when she was cross-examined).

Q3. What will you say?

A3. Really I said you slapped mum’s face.

Q4. Yeah I did slap her. Do you know the reason why I slapped your mum’s face that time?

A4. No, I don't know. Of course, I don’t know your family matters or the money matters between your families and your mother. I’ve seen you slap her but I wasn’t able to see the whole scene because your mom keeps on calling me to carry her to get near to both of you.

Q5. OK, that’s true. Do you know there is a safe in mother’s room?

A5. I have no idea. I only know there was a safe until your mother passed away. I only know when they opened the safe by hiring someone to open.

Q6. Do you know Teresa has stolen $30,000,000.00 from mother’s account?

A6. Sir, I have no idea it is your family matter.

Q7. Do you remember I gave you and Mary Ann $30,000 each. Did you mention it to Teresa?

A7. OK sir.

Q8. Give me your mobile number.”

Q1 up to Q2A have been admitted by the defendants.

44.  Mr Chong submits that the omitted words would have rendered it impossible for the 3^rd question and answer to be given.  I do not agree.  D1’s curiosity might have driven him to ask on.

45.  D1’s evidence as to the conversation was most evasive.

(a) D1 had not denied in his affirmation the conversation relating to the $30,000 but went to the full extent of explaining the background to that sum.  He would not have to do this if he had not mentioned the payment at all during the conversation.

(b) D1 had not denied in his affirmation that he had talked about the plaintiff’s stealing $30 million from her mother’s bank account.   D1 was evasive under cross-examination.  He said, “I did not use the word “stolen” and “I never mentioned the amount”. He also initially confirmed that he had mentioned the same matter of the missing money to Susana outside Court on 8 May 2014.   In light of the above, D1’s claim, under cross-examination, that he did not mention the $30m does not stand up to scrutiny.

(c) When asked whether he had asked Susana to give him her mobile phone number, D1 said that he had asked Susana if she was  still having the old number.  Allegedly, Susana said yes and that she would give it to him again.  This was never mentioned in his affirmation.  Nor was it put to Susana in cross-examination. Clearly D1’s intent was to cover up his act of contacting Susana.

(d) D1 agreed that §§16-19 of his affirmation had been carefully drafted in order to tone down the length and seriousness of the conversation.

I disbelieve D1.

46.  In his affirmation, D2 did not respond at all with regard to Q3 onwards.  Like D1, he was evasive and I disbelieve him.

47.  On the other hand, I do not see why Susana needed to make up the conversation from Q3 onwards.  I find that there had been mention of the $30,000 and $30,000,000 but I cannot be sure of the sequence of the questions and answers or the exact words used by D1 and Susana.   In view of paragraphs 14-16 above, it would not be safe to rely on Susana’s evidence to convict the defendants.

48.  I accept Susana’s evidence that the conversation lasted for about 30 seconds to 2 minutes.  Throughout the process, D2 only nodded his head “in unison with” D1.

D. Whether D1 had “contacted” Susana

49.  I find that D1 had “contact” with Susana in 3 ways:

(i) in asking why she was there and telling her to tell the truth when he learnt the purpose;

(ii) in continuing the conversation with her; and

(iii) in asking for her mobile phone number.

E. Whether D2 had “contacted” Susana

50.  By simply nodding “in unison to” what D1 said was not “contact”, especially since Susana agreed that it witness statement to acknowledge her address “sir”.  There was nothing to show that D2 was acting in concert with D1.

51.  There was no duty on D2 to stop D1 from talking or to walk away from the conversation.  Mere passivity is unlikely to attract liability in contempt. 

52.  It was not open to Mr Hughes to submit that D2 was aiding and abetting D1 in breaching the undertaking as it was not part of the plaintiff’s case.  In any case, D2 could not be liable in common law for “aiding and abetting”, as this concept applies to a third party not privy to the undertaking: Seaward v Paterson [1897] 1 Ch 545.

53.  I find that in taking down Susana’s mobile phone number after listening to the conversation, D2 had had contact with Susana.

F. Were the acts of the defendants in breach of the undertaking?

54.  Casual or accidental and unintentional breaches would not end up in liability for contempt.  In Fairclough & sons v. Manchester Ship Canal Co. (No.2) (1897) 41 Sol Jo 225, Lord Russell CJ says as follows:

“We desire to make it clear that in such cases no casual or accidental and unintentional disobedience of an order would justify either committal or sequestration. Where the court is satisfied that the conduct was not intentional or reckless, but merely casual and accidental and committed under circumstances which negative any suggestion of contumacy, while it might visit the offending party with costs and might order an inquiry as to damages, it would not make the extreme course of ordering either of commitment or of sequestration.”

55.  There could not be breach of the undertaking if the contact was made without notice of the amendment.

56.  Further, the undertaking had been given at the January hearing.  The hearing on 8 May 2014 was set down for 30 minutes only for the court to talk to the parties personally.  There was no indication that there would be a hearing on the merits of the injunction.  There was simply no need for any witness to be cross-examined, let alone Susana, who has not filed any affirmation up to that day.  Hence, D1 understandably expressed surprise on seeing Susana and asked why she was there.  Therefore, with regard to Q1, Q2 and Q2A, even with notice of the amendment, any breach of the undertaking would have been accidental or unintentional, and would not attract liability for contempt.

57.  On the other hand, if the amendment had been brought to the defendants’ notice, I am unable to agree with Mr Chong that continuing with the conversation was “casual and unintentional” breaches of the undertaking. There was no reason for D1 to mention the $30,000 and $30,000,000 out of the blue, except to try and influence what Susana may testify about.  It would have caused harm to the interests of the plaintiff or to the public interest:  A-G v. Times Newspapers Ltd[1974] AC 273, at 312A-C, per Lord Diplock.

58.  D1’s asking about the mobile phone number and D2’s recording of it would have been for no other purpose but future contact with Susana whom they already knew would testify.  That at no time on or after 8 May 2014 had any of the defendants contacted Susana was irrelevant to whether or not there was a breach.  It only went to sentence.

59.  That Susana did not feel threatened would not undermine the culpable conduct of the defendants but only goes to sentence

Conclusion

60.  The conversation and the taking down of Susana’s mobile phone number would have constituted contact with a servant within the meaning of the undertaking.  However, there is reasonable doubt as to whether or not the defendants had notice of the amendment to the undertaking and the reliability of Susana’s evidence.  Contempt has not been proved beyond reasonable doubt.  Accordingly, I dismiss the originating summons.

61.  I make an order nisi that costs shall be paid by the plaintiff to the defendants with certificate for one counsel only. There shall be summary assessment of the defendants’ costs on 2 October 2015 on the papers.   No attendance is required.  The defendants do file and serve their costs statement by 18 September 2015.  The plaintiff do file and serve her grounds in opposition by 30 September 2015.

62.  I thank counsel for their assistance.