SINO WOOD INVESTMENT LTD v. WONG KAM YIN

CACV 130/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 130 OF 2004

(ON APPEAL FROM HCA NO. 307 OF 2002)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1. This is an appeal from a judgment and order of Deputy High Court Judge Saunders given on 14 April 2004. The matter before the judge was an application to commit the defendant and a Mr Paul Lee Yat Kwong ("Mr Lee") for their several contempts. The judge had found both persons to be in contempt of court in respect of separate matters. Sentence had been deferred and was due to take place on 7 June this year. At the conclusion of the hearing of this appeal, this court allowed the defendant's appeal and set aside the finding of contempt against her but dismissed Mr Lee's appeal. Costs were awarded in favour of the defendant both in this court and the court below and in favour of the plaintiff in respect of the application against Mr Lee in this court.

Background

2. This action relates to a claim made by the plaintiff against the defendant, who was a former director of the plaintiff, for misappropriation of some RMB42.7 million. The matter is hotly disputed. The writ in this action was endorsed with a statement of claim and issued on 25 January 2002. Service of the writ was acknowledged by solicitors on behalf of the defendant on 11 February 2002. It appears that one of the first steps taken on behalf of the plaintiff in the action was to obtain an order prohibiting the defendant from leaving Hong Kong as well as obtaining a Mareva injunction. That order prohibiting the defendant from leaving Hong Kong was of no avail since the defendant had not been in Hong Kong for more than two weeks prior to the plaintiff seeking the order. That first prohibition order was extended for one month but appears to have lapsed after the first extension.

3. More than a year later, on Friday 23 May 2003, a further application for a prohibition order was made before Master J Wong. On the basis of the evidence before him, Master Wong apparently refused that order, which on the evidence presented to him would seem to have the correct course but, seemingly, indicated that if there was further evidence that might justify an order, a further application could be made. On the following day, armed with the ninth affirmation of Siu See Kong, a further application was made, this time before another master. The master granted the order ("the prohibition order").

4. Although the prohibition order is dated 24 May 2003 it was not, apparently, filed until 2:43 p.m. on 26 May. It is not part of the function of this court on this appeal to consider the merits or otherwise of the grant of the prohibition order on 24 May 2003. I would, therefore, confine myself to the observation that it is not altogether apparent from the evidence that was filed as to why such an order was granted. The same observation might be made in respect of further prohibition orders which have been made in recent months.

5. The prohibition order was granted in the terms of Form No. 106 in Appendix A of the Hong Kong Rules. The relevant part was as follows:

"IT IS ORDERED that WONG KAM YIN ... is prohibited from leaving Hong Kong."

Service of the prohibition order of 24 May 2003

6. The plaintiff engaged the services of a Mr Cheng to serve the prohibition order. On instructions, Mr Cheng went to the ground floor of Hang Seng Bank Building, Connaught Road, Central at about 8:15 a.m. on 26 May 2003. The offices of the defendant's solicitors were located in that building. Mr Cheng had been instructed to wait to see if the defendant came out. His wait ended at around 4:30 p.m. when he saw the defendant emerge from the lift with another woman and two men. When the four people left the building Mr Cheng followed them at a distance of about 20 feet. They evidently crossed Queen Victoria Street and continued along Connaught Road, stopping outside the Hang Seng Bank Headquarters Building. When they tried to hire a taxi, Mr Cheng went up to the group. He reached out with a copy of the prohibition order in his hand and touched the defendant on her left shoulder with the document and 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."

7. The judge accepted that Mr Cheng was about a foot away from the defendant when he said that. Mr Cheng then tried to put the document in the defendant's hand but she refused to accept it and pushed it away. In doing so she said:

"Who are you? I do not know you."

Mr Cheng responded by saying:

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

8. The four persons failed to hire a taxi at their first attempt and then moved on in a westerly direction. They then crossed Jubilee Street and Mr Cheng followed them. They again tried to hire a taxi. Mr Cheng then went up to them and came alongside the defendant. It is at this stage that Mr Lee shouted at Mr Cheng and asked him what was the matter. Mr Cheng responded by saying that he had to serve a prohibition order on the defendant. Mr Lee then asked to see the document. When Mr Cheng gave Mr Lee the document, Mr Lee glanced at it and, so it is said, using one hand and his body, screwed it up and threw it on the ground. Following that, the group then stopped a taxi. When the defendant and two other persons in the group were in the process of boarding the taxi, Mr Cheng picked up the document and tried to give it to the defendant. He walked up to the taxi. Mr Lee then pushed Mr Cheng once on the shoulders with the flats of his hands and then used his forearm to push Mr Cheng in the abdomen.

9. The defendant left in the taxi and there is no dispute that she then went to the Macau Ferry Terminal where she went to the immigration counter. She already had a ticket to Macau in her hand when the immigration officers informed her that there was an order prohibiting her from leaving Hong Kong. According to a letter from the Immigration Department dated 26 May 2003, the defendant claimed that she was ignorant of the prohibition order made against her and "chose to refrain from leaving after being advised."

10. Meanwhile, the police were called to the scene where Mr Cheng and Mr Lee remained. It suffices to say that Mr Lee was prosecuted on Mr Cheng's allegations of common assault. Mr Lee was acquitted. The magistrate expressed himself as dissatisfied with Mr Cheng's veracity and seemingly was not impressed by his protestations of injury.

The contempt proceedings

11. Following application, leave was granted to bring contempt proceedings. The remaining contempt alleged against the defendant was as follows:

"On 26 May, 2003 at around 5:33 p.m., Wong knowingly acted in disobedience to a Prohibition Order dated 24th May, 2003 granted by Master A. Ho ('the Prohibition Order'), after a sealed copy of which endorsed with a penal notice had been served on her personally and/or after she had been informed of its effect, by taking steps to leave Hong Kong via the Macau Ferry Terminal in Sheung Wan, Hong Kong."

In respect of Mr Lee the contempt alleged was:

"On 26 May, 2003, at around 4:32 p.m., between Hang Seng Building and Crocodile House along Connaught Road Central, Central, Hong Kong, or thereabouts, Lee knowingly obstructed and/or attempted to obstruct Cheng in the execution of his duty in serving the Prohibition Order on the Defendant and/or abused and/or assaulted Cheng whilst in the execution of his duty aforesaid, with the intention of preventing and/or deterring the service of process on the Defendant and interfering with the administration of justice."

The judgment below

12. As has already been noted, the order against the defendant was that the defendant "is prohibited from leaving Hong Kong." On the face of the motion for committal the matter of which complaint is made does not constitute leaving Hong Kong but taking steps to leave Hong Kong. The two matters are very different. The judge decided the matter in the following way:

"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."

13. In my view, the judge's approach was flawed. Whilst going up to an immigration counter with a ticket in hand might well be a step towards leaving Hong Kong it did not constitute leaving Hong Kong. The words are clear. "Leaving Hong Kong" is not constituted by taking steps towards that end, it is only constituted by leaving Hong Kong. A person only leaves a place when he or she is no longer there. It is trite law in relation to injunctions that they must be clearly worded. Those who are subject to injunctions must know exactly what they can do and what they cannot do. The prohibition order here was clear.

14. In the court below the question of an attempt to breach an order was clearly discussed in the course of argument. The judge however did not decide the case on that basis in respect of that he said:

"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."

15. Mr Bleach SC, who appeared on behalf of the plaintiff, sought to resurrect the argument in respect of an attempt to breach an order constituting a contempt. In my view this is not open to the plaintiff. In the first place it was not the way in which the notice of motion was framed. In the second place the judge did not decide the case on that basis but decided it on the basis that the defendant had done acts which constituted leaving Hong Kong. Whilst Mr Bleach sought to argue that an attempt to breach an order did constitute a contempt, the argument appears to me to be particularly tenuous. Indeed, as Mr Scott SC pointed out on behalf of the defendant, there is no reported case which counsel have found or known to this court where an attempt to breach an injunction has been held to have constituted a contempt. Even if an attempt to do an act which was prohibited by an injunction would constitute a contempt, I do not consider that what occurred here was sufficient to constitute an attempt. The defendant did not board the vessel: when informed of the prohibition order by the Immigration officer she left the terminal.

16. I consider that in the circumstances of this case it is unnecessary to take the matter further because, again as Mr Scott pointed out in the course of argument, the statutory provisions and the rules and forms made under those provisions lead to the conclusion that an attempt to leave Hong Kong is dealt with by other provisions. Section 21B of the High Court Ordinance, Cap. 4 is the statutory provision relating to prohibition orders. Under subsections (7) and (8) it is provided that:

"(7) Where the Court makes an order under subsection (1) prohibiting a person from leaving Hong Kong, any person who, having been served with a copy of the order or otherwise informed of its effect, attempts to leave Hong Kong in contravention of that order may be arrested by any immigration officer, police officer or bailiff.

(8)	(a)	A person arrested under subsection (7) shall be brought before the Court before the expiry of the day after the day of arrest and the Court may-
		(i)	in the case mentioned in subsection (1)(a), make such order, for the examination or imprisonment of that person, under rules of court, as is appropriate;
		(ii)	in the case of any other person, make an order for the imprisonment of that person until the lapse or discharge of the prohibition order; or
		(iii)	in any case, make an order discharging that person from arrest either absolutely or upon compliance with such conditions as the Court thinks fit.
	(b)	Section 71 of the Interpretation and General Clauses Ordinance (Cap 1) shall not apply to this subsection."

17. The form of the prohibition order is specified in the Rules of the High Court. Order 44A, rule 3 specifies that the Court may make an order prohibiting the debtor from leaving Hong Kong, subject to the provisions of section 21B of the Ordinance. Sub-paragraph (2) then requires that the order prohibiting a debtor from leaving Hong Kong shall be in Form No. 106 in Appendix A. That form is in the same form as the order in this case. This specified form of order is entirely consistent with the fact that the order is intended to be an order prohibiting a person from leaving Hong Kong and it is not an order that specifies that the person should not attempt to leave Hong Kong. If a person who is the subject of a prohibition order does attempt to leave Hong Kong that person will be subject to the provisions of section 21B(7) and (8).

18. In view of the conclusion to which I have reached in respect of the terms of the order it is unnecessary to deal with any further points that are raised in relation to the service of the order, the penal notice or the translation of the order. It suffices to say that I do not consider that those points had merit.

Mr Lee's contempt

19. The point taken on behalf of Mr Lee was that anything that Mr Lee did in relation to the service of the prohibition order and in relation to Mr Cheng was done after the prohibition order had been served and, therefore, was not preventing service as that had already been accomplished. Mr Scott drew attention to the passage in the cross-examination of Mr Cheng where he admitted that the defendant had been properly served with the order when she was touched on her shoulder with the copy. That may be so and in the composed atmosphere of the court room Mr Cheng might appreciate that. But in the heat of the moment Mr Cheng was clearly trying to effect service of the order by giving it to the defendant, which she was trying to avoid. It is, of course, regrettable in any proceedings that there should be personal confrontation. As the files in this case reveal, this does not appear to be the only occasion on which there has been some, perhaps unnecessary, personal confrontation between the parties. Nevertheless, however unreliable Mr Cheng's evidence possibly was and however much he may have tried to exaggerate the effect of any injuries, it does appear that Mr Lee was trying to prevent Mr Cheng serving a copy of the prohibition order. In doing so, obviously Mr Lee was also acting in the heat of the moment, his aim was no doubt to shield the defendant rather than to harm anybody. Insofar as he came into contact with Mr Cheng it was clearly with the intention of keeping him away from the defendant and not to hurt Mr Cheng. I, myself, would not be disposed to consider the matter as seriously as the judge below appears to have done in paragraphs 40 and 41 of his judgment.

Hon Le Pichon JA:

20. I agree with the judgment of the Vice-President.

Hon Suffiad J:

21. I have had the benefit of reading the Reasons for Judgment of the Vice President and I fully agree with all that has been said by him.

22. If the judge below was correct that what was done by the defendant (on the facts as found by him) amounted to a breach of the prohibition order, it would be quite unnecessary for the subsections (7) and (8) of Section 21B of the High Court Ordinance to have been enacted to cover the situation of a person who attempts to leave Hong Kong after being served with a copy of a prohibition order.

23. The fact that subsections (7) and (8) of Section 21B exist is itself a clear indication that the legislature intended that a prohibition order, which must be worded in the prescribed form (Form No. 106), is breached only when the person so prohibited has left Hong Kong with knowledge of the prohibition order. An attempt to leave Hong Kong, which is short of the actual breach of the prohibition order, is then covered by subsections (7) and (8) of Section 21B.