PACIFIC BULK SUPRAMAX CO LTD v. WONG MAN KAM PATRICK AND ANOTHER

HCMP 1632/2021

[2026] HKCFI 2878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1632 OF 2021

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BETWEEN

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DECISION

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1.   Introduction

1.1  By a judgment dated 1 August 2025 (“Judgment”)[1], Ds were (1) acquitted of Act of Contempt 2 and (2) committed for Acts of Contempt 1 and 3. This is my decision on sentencing and costs.

1.2  The hearing on sentencing and costs was originally scheduled to take place on 17 November 2025 (“Original Hearing”). Written submissions were lodged by trial counsel (Mr Rimsky Yuen, SC leading Mr Nicholas Oh) on behalf of Ds on 6 November 2025 (“Nov 2025 Submissions”). However, very shortly before the Original Hearing, Wong informed the court and Ds’ solicitors (“H&I”) that he was unable to attend the hearing. As H&I were unable to obtain instructions from Wong, the Original Hearing was adjourned (partly) for H&I to make a formal application to cease to act for Wong, which application was granted on 21 November 2025.

1.3  Wong did not attend the adjourned hearing on 4 December 2025 (“Adjourned Hearing”). He had on 29 November 2025 (“29/11/25 Email”) (1) provided his further explanation for not attending the Original Hearing and his explanation for his inability to attend the Adjourned Hearing and (2) requested the court to proceed with the Adjourned Hearing in his absence, “based on the arguments presented by my legal representative, Mr Yuen”.

1.4  The Adjourned Hearing proceeded in Wong’s absence. As far as Wong’s position is concerned, I should clarify that I have taken into account the Nov 2025 Submissions (insofar as they concerned Wong) and the 29/11/25 Email. As Mr Yuen pointed out, his further written submissions dated 1 December 2025 was lodged on behalf of Leung only and he only appeared for Leung at the Adjourned Hearing.

1.5  The main differences between counsel are as follows.

1.6  First, in terms of sentencing, it is Ds’ case that a fine, coupled with an appropriate costs order, should be the appropriate penalties for each of Ds. In the alternative, even if the court sees fit to impose a custodia sentence, Mr Yuen says that a suspended sentence is appropriate. Mr Yuen makes the foregoing submissions in reliance on a number of factors, namely (1) Ds acted under pressure in carrying out Act of Contempt 1 (and to a lesser extent Act of Contempt 3), (2) there was no real impact caused by Acts of Contempt 1 and 3, (3) the personal circumstances of Ds, in particular their advanced age and in the case of Wong his health conditions, (4) there is no chance of repetition and (5) Ds have already suffered a great deal.

1.7  Conversely, whilst P does not seek to actively seek a certain penalty (Lee Shu Hang v Kan Lap Kee [2022] HKCFI 2671 §§3-5), P emphasizes that the nature of the Act of Contempt 1 is such that Ds were found guilty in presenting a false case and were successful in interfering with the administration of justice. The authorities put forward by Mr Chain suggest that an immediate custodial sentence is appropriate. As far as Act of Contempt 3 is concerned, P submits that a breach of a disclosure provisions attached to a freezing order usually merits an immediate custodial sentence. In either case, Mr Chan says that the case law shows that the other factors relied on by Ds do not detract from the foregoing propositions.

1.8  I have also received helpful submissions at the Adjourned Hearing on the issue of the matters to be taken into account in imposing concurrent or consecutive sentences in respect of the sentences to be imposed in respect of Acts of Contempt 1 and 3.

1.9  Secondly, in terms of costs, Ds say that given P’s failure in proving Act of Contempt 2, there should be no order as to costs. On the other hand, P’s primary position is that P should be entitled to the costs of the entire action on an indemnity basis, or alternatively, were the court minded to proceed on an issue-based approach, P should be awarded 70% of the costs of the action on an indemnity basis.

1.10  At the Adjourned Hearing, counsel also provided helpful submissions on whether the Ds’ liability to pay costs should be made on a joint and several basis or only on a several basis.

2.   Acts of Contempt 1 and 3

2.1  As pointed out at Judgment §1.2, the 3 Acts of Contempt were concerned with P’s application by its OS dated 10 August 2020 for a Mareva injunction in the Underlying Proceedings in aid of the then ongoing arbitral proceedings between P and BMC.

2.2  Initially, a domestic order was granted on an ex parte basis on 14 August 2020. P thereafter applied to convert the Domestic Order into a worldwide order. On 4 September 2020, DHCJ Jin Pao SC refused to grant a worldwide order on an interim basis. P subsequently renewed the application for a worldwide order, which application was heard by DHCJ Jin Pao SC on 15 October 2020. By the 15/10/20 Decision, the learned Judge refused to convert the Domestic Order into a worldwide order.

2.3  At Judgment §2.13, I pointed out that the additional undertaking referred to at 15/10/20 Decision §28 included the C&D Sale Proceeds Undertaking which was the subject matter of Act of Contempt 1. In gist, as set out at Judgment §1.2(1), Act of Contempt 1 alleged that Ds (1) knowingly aided and abetted BMC to provide the C&D Sale Proceeds Undertaking knowing at all times it was a worthless and empty undertaking based on false premises that could not be fulfilled (Act of Contempt 1 (Primary Case)) and (2) failed to take reasonable steps to comply with the C&D Sale Proceeds Undertaking (Act of Contempt 1 (Alternative Case)).

2.4  The substantive hearing of the OS took place on 23 February 2021. By the 15/3/21 Decision, DHCJ Le Pichon granted the Worldwide Order and directed BMC to make Asset Disclosure Orders which formed the subject matter of Act of Contempt 3 (Judgment §§1.2 and 2.17).

2.5  Act of Contempt 1 (Primary Case) was dealt with at Judgment Section 7. In gist, at Judgment §7.21, I found that Act of Contempt 1 (Primary Case) was proved, in that Ds knew that the underlying premises of the C&D Sale Proceeds Undertaking were false and that the false statements were likely to interfere with the course of justice.

2.6  Act of Contempt 1 (Alternative Case) was dealt with at Judgment Section 8. At Judgment §8.8, I found that Ds willfully failed to take reasonable steps to procure BMC to provide regular updates in accordance with the C&D Sale Proceeds Undertaking.

2.7  Act of Contempt 3 was dealt with at Judgment Section 9. At Judgment §9.8, I found that there was belated compliance in relation to the ICBC Payments and the Guangfa Payments, but by the time of the purging, the information provided no longer served any useful purpose. At Judgment §9.9, I found that, in relation to the South Pacific Payments, Ds failed to properly supervise the relevant personnel to comply with the Asset Disclosure Orders.

3.   Relevant principles on sentencing

3.1  Contempt of civil court orders is a serious matter. A prime consideration in sentencing contempt cases is to demonstrate to litigants that court orders are to be obeyed. The nature of the order and the breach in question as well as the extent of the breach are highly relevant considerations. The court will consider if there are aggravating factors, mitigating factors and also acts to purge the contempt. The sentence may range from a fine to a term of imprisonment, either suspended or immediate.

3.2  Whilst it is common ground that imprisonment should be regarded as a sanction of the last resort and any custodial sentence should be as short as possible consistent with the circumstances of the case, subject to any mitigating factors, the case law shows that (1) giving of a false undertaking or a false statement and (2) breaching a disclosure provisions attached to a freezing order are ordinarily viewed as serious matters which generally warrant an immediate custodial sentence.

3.3  In terms of cases involving the giving of a false undertaking or a false statement:

(1) At Judgment §4.5, I recorded counsel’s agreement that the giving of a false undertaking falls to be determined as an equivalent of giving a false statement on affidavit, a key common element being that the falsity is likely to interfere with the course of justice;

(2) Santa Monica Equity Inc v Nzololo [2022] 1 HKLRD 752 §46 is an authority for the proposition, unless the circumstances are wholly exceptional, imprisonment is the only appropriate sentence for interference with the administration of justice;

(3) A similar view was reached at Kinform Ltd v Tsui Loi [2011] 5 HKLRD 80 at §§7-12 where a parallel was drawn with the commission of perjury.

3.4  In terms of cases involving the breach of a disclosure order attached to a freezing injunction, the authorities highlight one important aspect of sentencing, namely that it has both a punitive aspect for sanctioning a breach of a court order and a coercive aspect in holding out the threat of future punishment as a means of securing compliance. For example, Kam Min Ho Andrew v Lam Ho Chi [2025] HKCFI 3718 §23 is an authority for the proposition that any deliberate and substantial breach of disclosure provisions of a freezing injunction is a serious matter which normally attracts custodial sentence, and where there is a continuing failure to disclose relevant information, the court should consider imposing a longer sentence to encourage future cooperation by the contemnor.

3.5  As I understand Mr Yuen, he has no quarrel with the above propositions that cases involving the giving of a false undertaking or the breach of a disclosure order attached to a freezing order ordinarily attract an immediate custodial sentence. He however argues that the circumstances of the present case warrant a departure from the foregoing “usual” position.

3.6  I now proceed to deal with the relevant factors advanced by the parties.

4.   Ds’ personal background

4.1  Each of Ds has filed evidence for the purpose of sentencing, respectively Wong 7^th and Leung 3^rd.

4.2  Wong is now aged 74. He is married with three children. Since 2021, he has been suffering from recurrent depressive disorder, pancreatic tumours and prostatic cancer and had undergone various surgeries, including a procedure to remove part of his pancreas in June 2023. It appears from the 29/11/25 Email that his failure to return from England to attend the Original Hearing and Adjourned Hearing was largely due to medical treatment for his psychological conditions. In particular, he has produced a letter dated 28 November 2025 from one Dr M Khan, a chartered psychologist at the Department of Psychology of South London and Maudsley NHS Foundation Trust, confirming that he was required to attend a two-month course of psychological therapy commencing on 28 November 2025 and that he “must remain in London throughout the full two-month period [and he] should not miss any scheduled sessions, as disruption in attendance may significantly compromise the effectiveness of treatment and prolong his condition.”

4.3  D2 is now aged 72. He is married with one son. In order not to cause his wife any distress, he has thus far not informed her of these committal proceedings. He has built a lifelong career as an accountant.

4.4  It cannot be gainsaid that Ds are persons of good character. Both have made significant contributions to the society locally and elsewhere, as attested by their character references. For example:

(1) During the time BMC/BMSI conducted mining operations on the Rennell Islands, substantial donations and financial contributions were made to the local communities including the construction of medical facilities and schools and the funding of students;

(2) As regards Wong, he was instrumental in the establishment of formal diplomatic relations between the Government of Solomon Islands and the Mainland in 2019. He also made substantial contributions in Hong Kong, including donation of land lots to Ying Wa College, locating a site for the Ebenezer School and Home for the Visually Impaired and donations to the Hospital Trust of the Pamela Youde Easter Hospital. He was described one of the character referees as “a man of integrity, diligence and generosity of spirit”;

(3) As regards D2, he is also held in high regard by all of his character referees, and references were in particular made to his pro bono service as honorary auditor to a host of charitable organizations.

4.5  As to the “weight” to be placed on the above matters, I have borne in mind the following observations made in the authorities:

(1) As regards the health conditions of Wong, Arboit v Koo Siu Ying (No 2) [2016] 3 HKLRD 154 §41 and AXA China Region Insurance Co Ltd v Li Yu Ping Ellen [2002] 3 HKC 339 §63 are authorities for the proposition that, if a custodial sentence is justified, medical condition weighs little as there is no reason to suppose that a contemnor cannot receive proper and appropriate medical treatment whilst in custody. In my view, the foregoing observations are especially apposite in the present case since (a) it does not appear to me that D1’s psychological condition is debilitating as he was able to provide the 29/11/25 Email which was drafted in lucid terms and (2) according to D1’s evidence, the only physical condition identified after his successful surgeries is that a follow-up scan has identified a cyst which requires surveillance;

(2) On a related note, I accept Mr Chain’s submission that D1’s failure to attend the Original Hearing and the Adjourned Hearing can be regarded as an aggravating factor: La Dolce Vita Fine Dining Co Ltd v Zhang Lan [2019] 2 HKLRD 341 §12. The 29/11/25 Email does not provide a proper explanation for his absence from the Original Hearing since (a) there is no supporting evidence on the allegation that he was advised by a general practitioner on 5 November 2025 to postpone travel due to his condition and (2) his scheduled consultation was to take place only on 18 November 2025 (after the Original Hearing). In any event, there is no evidence to support that any consultation or treatment (including the one recommended by Dr Khan) could not be obtained in Hong Kong;

(3) As regards Ds’ good character, I accept Mr Chain’s submission that the decided cases demonstrate that it counts little in the context of contempt proceedings since “the public must not be misled to believe that every person has one chance of disobeying a court’s order”: see for example Arboit §§37 and 42. However, on a slightly different emphasis, the loss of good character can be regarded as a punishment in itself, especially for a man of mature years who may no longer hold up his head in the community: The Queen on the Application of London Borough Of Havering v Mark Bowyer & Ors [2012] EWHC 2237 §19;

(4) As regards Ds’ advanced age, I accept Mr Yuen’s submission that it is a relevant factor, citing Wright v Rogers [2023] 4 WLR 9 §§28 and 31 and 陳玉屏v Liew Shuk Fui [2021] 3 HKLRD 290 §13.

5.   Relevant circumstances of the commission of Acts of Contempt 1 and 3

5.1  I accept Mr Yuen’s submission that amongst other factors, the court can and should take into account, inter alia, the extent to which the contemnor has acted under pressure, whether P has been prejudiced by virtue of the contempt and the degree of culpability: Crystal Mews Ltd v Metterick [2006] EWHC 3087 §13.

(i) Ds acted under pressure

5.2  Mr Yuen submits that Act of Contempt 1 was committed against the background that Ds were under immense pressure generated by the unprecedented COVID pandemic which adversely impacted the operations of BMC and BMSI. As a result of the pandemic, travel restrictions were imposed by the Solomon Islands Government in March 2020 and there had not been any sale of bauxite by BMC and BMSI after June 2020 and sale proceeds were only received by BMC and/or BMSI up to 30 June 2020: Judgment §§2.3 and 6.14. Notwithstanding the adverse situation faced by them, it was common ground that Ds injected not less than US$4.8 million into the business between March 2020 and April 2021, well after the 15/3/21 Decision.

5.3  Mr Yuen further points out that the court accepted that Ds believed that the impact of the pandemic would be temporary, and that they could simply bide its time and wait for the pandemic to blow over before resuming operation, especially when it was the case that BMSI did not have substantial indebtedness and BMC’s indebtedness was owed to “friendly” creditors : Judgment §6.19. He says that the inference to be drawn is that Ds were trying their best to rescue the businesses and such attempt would not only benefit themselves but also the employees and the local economy, Whilst accepting that Act of Contempt 1 remains an act of contempt, he invites the court to view Ds’ conduct with sympathy.

5.4  I am unable to place any or any significant weight on the financial pressure faced by BMC and BMSI. As pointed out by Mr Chain, the gravamen of Act of Contempt 1 (Primary Case) rests on Ds lying to the court by putting forward what they knew to be a worthless and empty undertaking, for the purpose of avoiding an immediate grant of the Worldwide Order. That Ds were under financial pressure to save BMC and BMSI was not an excuse to lie to the court.

(ii) Lack of prejudice to P

5.5  As regards Act of Contempt 1 (Primary Case) is concerned, Mr Yuen submits that the only possible prejudice caused to P was that DHCJ Jin Pao SC might have converted the Domestic Order into a worldwide order at the hearing on 15 October 2020. He points out that the Worldwide Order was subsequently granted in March 2021, a delay of only 5 months. Between October 2020 and March 2021, there is no evidence that BMI or BMSI had dissipated any assets in that period. To the contrary, Ds themselves injected substantial sums to meet the financial obligations of BMC even after the Domestic Order was granted. He argues that, in putting forward the C&D Sale Proceeds Undertaking, the only real effect was the delay of the conversion of the Domestic Order into a worldwide order, and the giving of the undertaking was not for the furtherance of any attempt to dissipate the assets of BMC or BMSI or to buy time to do so. Viewed in that light, he argues that the Act of Contempt 1 (Primary Case) had effectively been purged by the continued injection of funds.

5.6  Mr Chain disagrees. His submissions may be summarized as follows:

(1) Ds’ deliberate and contumacious conduct was successful in interfering with the course of justice, as DHCJ Jin Pao SC refused to convert the Domestic Order into a worldwide order partly because of the C&D Sale Proceeds Undertaking: Judgment §7.21;

(2) The eventual grant of the Worldwide Order was due to the fact that P discovered on its own investigation in November 2020 the Wider C&D Arrangement;

(3) Whilst a denial of the charge or putting P to strict proof is not an aggravating factor, the court is entitled to take into account the manner in which Ds advanced their defences when considering whether remorse is shown: AXA §§59-60. In this regard, Ds’ factual case (principally advanced by D1) was comprehensively rejected by the court as falling within the rubric of surmise, speculation, shifting and against the contemporaneous evidence: Judgment §§7.8, 7.14 and 7.17;

(4) Even in the evidence filed by Ds for the purpose of sentencing, no apology is proffered in respect of Act of Contempt 1 (Primary Case);

(5) That there was no evidence of dissipation of assets does not assist Ds, as Ds had given undertakings to the court that BMC itself would not and would not cause BMSI to do so: Judgment §§2.10(4) and 2.13. The fact that BMC had complied with the other undertakings simply means that Ds were not in further contempt;

(6) As regards the relevance of Ds’ injection of funds, Mr Chain points out that it has never been Ds’ evidence that the injection of funds was for the purpose of purging the contempt. Conversely, Ds had every self-interest to save BMC and BMSI, being essentially their own businesses.

5.7  Despite the initial attraction of Mr Chain’s submissions, having reflected on the matter, I agree with Mr Yuen that I should take into account the fact of Ds’ injection of funds and the resulting amelioration of the prejudice caused to P by reason of Act of Contempt 1 (Primary Case). The submissions made by Mr Chain set out at subparagraphs (1) to (5) of the preceding paragraph have already been taken into account in my finding that Ds were guilty of Act of Contempt 1 (Primary Case), but the pertinent issue, as I understand Mr Yuen, is whether any prejudice has been caused by Act of Contempt 1 (Primary Case). In this regard, Mr Chain may be correct in his submission that it is not Ds’ evidence that their fund injections were for the purpose of purging the contempt. However, whether one describes it as an act of “purging” or otherwise, the effect of the fund injections did objectively lessen the prejudice caused to P, especially when the sum injected after the grant of the Domestic Order (US$3.4 million) was in fact higher than the sum covered by the C&D Sale Proceeds Undertaking (around US$ 2 million). Even if the fund injections did not amount to the purging of the contempt, it seems to me that they are capable of amounting to an exceptional circumstance which I should take into account in sentencing.

5.8  As regards Act of Contempt 1 (Alternative Case), I accept Mr Yuen’s submission that there is no evidence to suggest that it has caused any real prejudice to P (especially when one bears in mind the financial situation of BMC/BMSI at the time).

5.9  As regards Act of Contempt 3, DHCJ Le Pichon granted the Asset Disclosure Orders on the basis that the information to be disclosed might lead to applications under the Chabra jurisdiction: Judgment §9.6. Mr Chain says that Act of Contempt 3 frustrated P’s assessment of the need to invoke the Chabra jurisdiction: Judgment §9.7. As I understand Mr Yuen, he does not dispute that Act of Contempt 3 did cause prejudice to P.

(iii) Culpability

5.10  In relation to Act of Contempt 1, Mr Yuen relies on the fact that, as found at Judgment §5.6, the role played by Leung was very different from that of Wong. Leung’s personal culpability should be seen through the fact that it was Wong who took up the primary responsibility for handling the C&D Sale Proceeds (Wong 7^th §17 and Leung 3^rd §10) and instructing BCC to provide the updates (Judgment §8.5).

5.11  However, as pointed out by Mr Chain, the C&D Sale Proceeds Undertaking was in fact given in Leung 1^st (1190): Judgment §7.13. Whether D2 was the person handling the C&D Sale Proceeds or signing the 3 C&D Agency Contracts is not relevant when assessing the culpability of Leung. Indeed, at Judgment §7.20, I had set out the reasons for finding that Leung knew that the underlying premise for the C&D Sale Proceeds Undertaking, namely Shipments 412, 413 and 415 had been sold, was untrue even on the premise that Leung was only responsible for the accounting and banking operations of BMC.

5.12  In relation to Act of Contempt 3, Mr Yuen submits that Ds had never concealed the bank statements underlying the ICBC Payments, the Guangfa Payments and the South Pacific Payments. In the light of the extent of the disclosure given, the failure to give details of the ICBC Payments, the Guangfa Payments and the South Pacific Payments were more out of inadvertence, and in any event, the contempt in relation to the ICBC Payments and the Guangfa Payments were eventually purged.

5.13  However, as found at Judgment §9.8, the breach in relation to the ICBC Payments and the Guangfa Payments was only purged on 8 March 2022, and the information provided served no useful purpose contemplated by the 15/3/21 Decision. As regards the South Pacific Payment, I have found at Judgment §9.9 that Ds’ efforts in securing compliance to be cursory and inadequate.

(iv) Apology

5.14  Ds have apologized in relation to Act of Contempt 1 (Alternative Case) and Act of Contempt 3.

(v) No coercive purpose left

5.15  Mr Yuen submits that there is no coercive purpose left in any sentence to be ordered against Ds as BMC and BMSI are already in liquidation. In particular, in relation of Act of Contempt 3, he relies on Excel Nobel Development Ltd & Ors v Wah Nam Group Ltd & Ors [2001] 4 HKC 148, in which the Court of Appeal set aside a sentence of 21 days for failure to procure a company to file a disclosure affidavit under a Mareva injunction (at 163 A-F).

5.16  Subject to what is stated below, I agree with Mr Chain that Ds can only derive limited assistance from Excel. The sentence was set aside by consent and the Court of Appeal expressly stated that the custodial sentence imposed by the judge could not be criticized. Pertinently, as pointed out by Mr Chain, the fact that Ds were able to purge the breach in March 2022 in relation to the ICBC Payments and the Guangfa Payments showed that the voluntary liquidation did not affect Ds’ ability to comply with the Asset Disclosure Orders.

(vi) Losses suffered by Ds/no chance of repetition

5.17  I accept Mr Yuen’s submissions that this is an unfortunate case caused by the unprecedented COVID pandemic and, given the good character of Ds, there is little concern that Ds would repeat such conduct and Ds have learnt the lesson. Ds have lost substantial sums that they have invested in the businesses and there is no realistic chance of any recovery. Bearing in mind their old age, losing a substantial part of their fortune would no doubt have an adverse effect on them, both financially and mentally.

6.   The appropriate sentence

6.1  Drawing the above threads together, I am of the view that the following sentences are appropriate.

6.2  In relation to Act of Contempt 1 (Primary Case), it must be acknowledged that it is of a serious nature given the falsity involved and the consequent interference with the administration justice. It has been said that in the context of a contempt of court, the giving of a false statement verified by a statement of truth (and by extension the giving of a false undertaking) will usually be so inherently serious that nothing other than an order for committal to prison will be sufficient (Liverpool Victoria Insurance Co Ltd v Khan [2019] 1 WLR 3833 §§58-59). However, in the particular circumstances of the present case, I am of the view that there are justifications for not imposing an immediate custodial sentence.

6.3  I bear in mind that Act of Contempt 1 (Primary Case) had the effect of delaying the conversion of the Domestic Order into a worldwide order. As pointed out above, on the facts of this case, Ds had injected funds into BMC/BMSI the total of which far exceeded the C&D Sale Proceeds. The facts of the present case are a far cry from an unscrupulous defendant causing dissipation of the assets to render his company judgment proof or to enrich himself. To the contrary, Ds were putting in their own money to keep the businesses afloat. I have considered the cases referred to by Mr Chain. If I have understood them correctly, none of them deals with the foregoing peculiar feature, namely the mischief caused by a false undertaking is substantially mitigated or reversed by the contemnor’s own voluntary actions.

6.4  It seems to me that the matter may be tested this way. As I understand the evidence, the injected funds were only first raised in Wong 5^th (1190) which was filed after the grant of the Worldwide Order. In other words, neither DHCJ Jin Pao SC nor DHCJ Le Pichon was aware of the fund injections. Had the fund injunctions been raised before DHCJ Le Pichon, it seems to me that, at the very least, it would be a material consideration in respect of the learned Judge’s assessment on the issue of risk of dissipation.

6.5  I also bear in mind the advanced age of Ds and the loss of good character.

6.6  For the above reasons, I am of the view that a substantial fine is appropriate. As stated above, I do not regard the culpability of Leung is less than that of Wong. Having regard to Ds’ costs liability, the mitigating factors and the sentences imposed for the other acts of contempt, I consider the appropriate level of fine is HK$550,000 for Wong and HK$500,000 for Leung. The higher fine imposed against Wong is to reflect the aggravating factor for his failure to attend the Original Hearing and the Adjourned Hearing.

6.7  In relation to Act of Contempt 1 (Alternative Case), I take into account the lack of prejudice caused to P, the apology made, Ds’ advanced age and the loss of good character. Having regard to Ds’ costs liability, the mitigating factors, the sentences imposed for the other acts of contempt and the cases cited by Mr Yuen, I consider the appropriate level of fine is HK$125,000 for Wong and HK$100,000 for Leung.

6.8  I now deal with Act of Contempt 3. I have earlier stated that Ds can only derive limited assistance from Excel, in that the setting aside of the custodial sentence in that case was by consent. However, Excel remains relevant in illustrating a common-sense approach. In the present case, DHCJ Le Pichon granted the Ancillary Disclosure Orders because she was concerned by the decrease of the balances in BMC’s bank accounts in Hong Kong and she formed the view that it was not unlikely that funds might have been transferred to other entities under circumstances that would fall with the Court’s Chabra jurisdiction (15/3/21 Decision §§107 and 108). However, BMC was placed in voluntary liquidation on 25 March 2021 and the liquidators of BMC procured BMSI to be wound up on 13 November 2021. As pointed out by Mr Yuen, despite the length of time in which BMC and BMSI have been in liquidation, there is no evidence that there has been any improper dissipation of assets by way of any of the payments or concealment of assets from P. As such, the prejudice caused to P in the form of having been frustrated in considering whether to invoke the Chabra jurisdiction is more theoretical than real. As observed at Excel page 162B-F, the information that would be revealed in liquidation would be fuller than that obtained under a disclosure order, and to impose a sentence of imprisonment would serve no useful purpose other than possibly emphasizing for the benefit of others the importance of the observance of court orders which could be done equally as well by an indication that a sentence of imprisonment for a willful failure to observe a court order can often be appropriate.

6.9  Having regard to Ds’ costs liability, the mitigating factors, the sentences imposed for the other acts of contempt and the cases cited by Mr Yuen, I consider the appropriate level of fine is HK$200,000 for Wong and HK$175,000 for Leung.

6.10  For completeness, I should point out that Mr Chain relies on Navig8 Chemical Pools Inc v Inder Sharma, HCMP 2885 of 2016, 14 February 2017 §41 for the proposition that a fine imposed on Wong would be very difficult to enforce abroad and is thus not an available option. However, Navig8 is concerned with a defendant who lived and worked in India (§47). As far as I am aware, Wong still has a home in Hong Kong and has indicated in the 29/11/25 Email that he would return to Hong Kong upon completion of his treatment.

6.11  For the above reasons, I order (1) Wong is to be fined the sums of HK$550,000, HK$125,000 and HK$200,000 and (2) Leung is to be fined the sums of HK$500,000, HK$100,000 and HK$175,000.

7.   Costs

7.1  Counsel agree that the applicable principles are those set out at Tapbo Civil Engineering Company Ltd v Hong Kong River Engineering Company Ltd [2025] HKCFI 4537 §8. For present purposes, the following principles are relevant:

(1) Costs are in the discretion of the court and they should generally follow the event;

(2) The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or costs of the proceedings he may be deprived of the whole or part of his costs;

(3) Where the successful party raises issues or makes allegations, improperly, or unnecessarily, the court may not only deprive him of his costs but may order him to pay the whole or part of the unsuccessful party’s costs;

(4) A party seeking to displace the general rule that costs follow the event bears the burden of showing that the circumstances justify the exceptional course of such displacement;

(5) Whilst the court may order a successful party to pay the costs of the issues or allegations which were made improperly or unnecessarily and such issues have caused a significant increase in the length or cost of the proceedings, those issues have to be discreet and isolated.

7.2  There can be no dispute that P is the “overall winner” in the present proceedings. The question is whether, as submitted by Mr Yuen, P (1) should be ordered to pay to Ds the costs or (2) should be deprived of its costs relating to the failure of Act of Contempt 2.

7.3  It ought to be clear from Judgment Section 6 that I formed a dim view on Act of Contempt 2, principally on the basis that the case pursued in closing represented a marked departure from the Statement and in any event lacked merits on the substance. In my view, Act of Contempt 2 was raised improperly and unnecessarily.

7.4  I further agree with Mr Yuen that Act of Contempt 2 is distinct from the other Acts of Contempt: (1) Act of Contempt 1 related to whether the C&D Proceeds Undertaking given at the hearing on 15 October 2020 was worthless and empty; (2) Act of Contempt 2 related to whether Ds failed to caveat/qualify the BMSI Valuation Evidence/BMSI Value Representations at the hearing on 23 February 2021 and (3) Act of Contempt 3 related to the compliance with the Ancillary Disclosure Orders after the Worldwide Order was granted on 15 March 2021. I do not accept Mr Chain’s generalization that the 3 Acts of Contempt arose out of the same factual matrix rendered them not discreet and not isolated.

7.5  For the above reasons, I am of the view that Ds should pay to P the costs of Acts of Contempt 1 and 3 which liability is to be set off against P’s liability to pay to Ds’ the costs of Act of Contempt 2. I have considered the parties’ submissions on apportionment. In my view, the net effect is that Ds should pay to P 40% of the costs of the present action. I further agree with Mr Yuen that I should make it clear that P is only entitled to the costs of the leave application to commence these committal proceedings insofar as they relate to Acts of Contempt 1 and 3.

7.6  The last issue is whether Ds’ liability to pay costs should be on a joint and several basis or simply on a several basis. Mr Chain relies on, inter alia, Willwin Development (Asias) Co Ltd v Wei Xing & Ors, HCMP 2946 of 2014, 16 November 2015 in which the court ordered the defendants, who were separately represented, to pay costs jointly and severally as they had adopted part of each other’s defence. As noted by Mr Yuen, in none of the cases cited by Mr Chain was the question as to whether joint and several liability as to costs should be imposed fully or properly argued. In Willwin, the issue was conceded by the defendants (§40). Mr Yuen principally relies on the different roles played by Wong and Leung to justify the costs liability should be on a several basis.

7.7  I am here only concerned with the costs of Acts of Contempt 1 and 3. As set out above, I do not regard Leung was less culpable than Wong in relation to Act of Contempt 1 and Mr Yuen has not sought to differentiate the roles between Wong and Leung in Act of Contempt 3.

7.8  In my view, Ds’ liability should be on a joint and several basis.

7.9  For all the above reasons, I make the following orders on costs:

(1) Save as set out below, Ds are to pay to P jointly and severally 40% of the costs of action on an indemnity basis to be taxed if not agreed with a certificate for 2 counsel;

(2) Ds are to pay to P jointly and severally the costs of the ex parte application for leave to commence the present proceedings (including the costs of the Statement) only insofar as they relate to Acts of Contempt 1 and 3 to be taxed of not agreed[2];

(3) Costs thrown away in relation to the hearing of the Original Hearing be paid by Wong to P on an indemnity basis, to be taxed if not agreed, with a certificate for 2 counsel;

(4) Costs for sentencing, including the costs of the Adjourned Hearing, be paid by Ds to P jointly and severally on an indemnity basis, to be taxed if not agreed, with a certificate for 2 counsel.

7.10  For avoidance of doubt, the orders made at subparagraphs (3) and (4) of the preceding paragraph are on a nisi basis.