LEE CHEE HON v. SONG LIHUA

HCMP 314/2024

[2026] HKCFI 4491

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 314 OF 2024

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BETWEEN

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J U D G M E N T

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Background

1.  On 19 February 2024, this Court granted leave to the Plaintiff to commence proceedings to commit the Defendant for contempt of court.

2.  The underlying background facts are not in dispute.

3.  According to the Agreed Chronology, an arbitral award was issued on 11 October 2021 whereby the Plaintiff was ordered to pay to the Defendant the sum of RMB 337,222,219.90, with interest and costs (“Award”).

4.  On 12 December 2022, the Defendant obtained an injunction in Hong Kong to restrain the Plaintiff from disposing of or dealing with his assets in Hong Kong up to the value of HK $38,400,000 (“Injunction”). On 16 December 2022, an order was made by the court that the Injunction would be discharged upon the Plaintiff’s payment into court of the sum of HK $38,400,000 (“Sum”). The said Sum was paid into court by the Plaintiff on 23 December 2022.

5.  On 12 January 2023, the Defendant obtained leave from the Court to enforce the Award as a judgment of the Hong Kong Court (“Enforcement Order”). This was followed by the Plaintiff’s application made to the Court (on 26 January 2023) to set aside the Enforcement Order.

6.  On 24 August 2023, the Enforcement Order was set aside by this Court on the ground that it would be contrary to public policy to enforce the Award. Shortly thereafter, on 30 August 2023, the Plaintiff applied by summons for the Sum to be paid out of court to him (“Payment Out Application”).

7.  On her part, the Defendant applied on 6 September 2023 for leave to appeal against the setting aside of the Enforcement Order. This application was subsequently dismissed by the Court on 14 November 2023.

8.  The Payment Out Application was dealt with on the papers, and on 6 October 2023, the Court allowed the application and ordered that the Sum paid into court was to be paid out of court to the Plaintiff through his solicitors “forthwith” (“Payment Out Order”). The said order was duly served on the Defendant.

9.  The contempt proceedings arose out of letters sent by the Defendant’s solicitors after the Payment Out Order.

10.  On 9 October 2023, the Defendant’s then lawyers in Hong Kong (“GHK”) sent a letter to the Court seeking (inter alia) a stay of the Payment Out Order. They were informed by the Court that any application should properly be made by summons. Accordingly, on 12 October 2023, a summons was issued on behalf of the Defendant for stay of execution of the Payment Out Order (“Stay Application”), pending determination of the Defendant’s application for leave to appeal against the setting aside of the Enforcement Order. The Stay Application was fixed for hearing on 7 November 2023.

11.  Having failed to obtain an undertaking from the Plaintiff not to effect payment out of the Sum, GHK (ie the Defendant’s lawyers) sent a letter to the Accounts Office of the High Court on 20 October 2023 (“1^st Letter”), in the following terms:

“1. We refer to the sum in Court of HK$38,400,000.00 paid by the Respondent on 23 December 2023 in compliance with the Order of the Deputy High Court Judge Winnie Tsui Dated 16 December 2022 (the “Sum”).

2. We write to inform your Office that, while there is an Order made by the Honourable Madam Justice Mimmie Chan dated 6 October 2023 for payment out of the Sum, the Applicant has taken out application for stay of execution of the said Order by way of Summons on 12 October 2023 (the “Stay Application”), which would be dealt with at the hearing fixed on 7 November 2023 before Mimmie Chan J. We attach a copy of the Summons for the Stay Application for your attention.

3. Thus, in order to avoid the situation where administrative arrangements pre-empt the Court’s substantive determination of relevant matters, we would be very grateful if you could withhold any payment out request in relation to the Sum until determination of the Stay Application.

4. If you have any query, please feel free to contact our Mr. Arthur Yan at 2160 2385.”

12.  The Plaintiff’s lawyers immediately wrote to GHK on the same day, stating that the 1^st Letter was “an abuse of process and constitutes contempt of court by interfering with the due administration of justice”. They demanded GHK to “unreservedly withdraw” the 1^st Letter.

13.  GHK responded by stating that their 1^st Letter did not constitute any abuse of process or contempt of court, and that the purpose of the 1^st Letter was simply to inform the Accounts Office of the existence of the Stay Application and the imminent hearing of the Stay Application fixed on 7 November 2023. They stated at the end of the letter to the Plaintiff’s lawyers that they were nevertheless prepared to withdraw the 1^st Letter, on a without prejudice basis and solely to avoid further arguments.

14.  Accordingly, on 24 October 2023, GHK sent a letter to the Accounts Office (“2^nd Letter”), stating as follows:

“1. The purpose of our earlier letter to your Office dated 20 October 2023 is to inform you that there is the stay application via our client’s Summons dated 12 October 2023 (“Stay Application”) and the imminent hearing fixed on 7 November 2023 (“Hearing”).

2. As your Office is responsible for dealing with requests for payment out, we take the view that your Office entitled (sic) to be informed of the pending Stay Application and the Hearing so that your Office has the complete picture if and when your Office receives a request for payment out by Messrs. D.S. Cheung & Co. Needless to say, it is entirely a matter for your Office to decide what is the appropriate action to take in the event your Office does receive a request for payment out from Messrs. D.S. Cheung & Co.

3. We do not agree that our earlier letter to your office constitutes any abuse of process or contempt of court as alleged by Messrs. D.S. Cheung & Co. or at all.

Without prejudice to our position and solely with a view to avoiding unnecessary argument or satellite litigation (and thereby saving costs), we are prepared to withdraw our earlier letter and we do so by this letter. We leave it entirely to your Office to decide what is the most appropriate action to take if and when your Office does receive a request for payment out from Messrs. D.S. Cheung & Co.”

15.  The Plaintiff’s lawyers informed GHK that they did not accept the 2^nd Letter as an unreserved withdrawal of the 1^st Letter as it suggested that there was some appropriate course of action other than compliance with the Payment Out Order. GHK therefore sent a further letter to the Accounts Office on 25 October 2023, referring to their 2 earlier letters, and stating:

“At (the Plaintiff’s) requests, we hereby unreservedly withdraw Our Two Letters.”

16.  It is not in dispute, that on 26 October 2023, the Defendant applied to the court and obtained an interim stay of execution of the Payment Out Order until 7 November 2023, the scheduled hearing of the Stay Application (“Interim Stay Order”).

17.  On 14 November 2023, the Defendant’s application for leave to appeal was dismissed. Following that, the Sum was finally released to the Plaintiff on 20 November 2023.

18.  On 8 February 2024, the Plaintiff applied for leave to commence contempt proceedings against the Defendant, on the basis of her issuance of the 1^st Letter and the 2^nd Letter (collectively referred to as the “Letters”) which the Plaintiff claims constituted criminal contempt. Leave was so granted on 19 February 2024.

Applicable legal principles

19.  The Court must be satisfied beyond reasonable doubt that both the relevant actus reus and mens rea of contempt have been met (Secretary for Justice v Hui Chi Fung [2022] HKCFI 839).

20.  Criminal contempt was described in Chu Kong v Sun Min (2022) 25 HKCFAR 318 (at para 24-26 of the judgment of Lord Neuberger NPJ) as conduct which “so threatens the administration of justice that it requires punishment from the public point of view”, and conduct which “goes beyond mere compliance with a court order or undertaking and involves a serious interference with the administration of justice”.

21.  On the submissions made by Counsel for the Plaintiff, the actus reus for criminal contempt is conduct that is inherently likely to interfere with the due administration of justice (Secretary for Justice v Wong Ho Ming [2018] HKCA 173). Counsel for the Defendant highlighted that the act or omission should be calculated to prejudice the due administration of justice, in the sense that there is a “real risk”, as opposed to a remote possibility, that prejudice will result (citing Crane World Asia Pte Limited v Hotrade Engineering Limited HCA 109/2014, 20 May 2016). It was contended for the Defendant that it is necessary to show that there was some significant and adverse effect on the administration of justice, and that the risk of prejudice must be serious, real or substantial (Secretary of Justice v Ng Wai Bing [2011] 5 HKLRD 620).

22.  The submissions made for the Defendant are that for there to be criminal contempt, there must be conduct which (1) amounts to interference with the administration of justice; and (2) which is significant, and more than merely trivial or technical.

23.  With regard to mens rea, the Court of Appeal in Wong Ho Ming summarized the relevant authorities on the subject, as follows:

“(1) Under Hong Kong common law on mens rea for criminal contempt :

(a) There is no starting point that for every form of criminal contempt, a specific intent to interfere with administration of justice is required.

(b) Nor is there a rigid rule that for every form of criminal contempt, only a basic intent to perform the acts which constituted the actus reus of the contempt is required.

(c) Whether a specific intent or a basic intent is required depends on the actual form of contempt before the court and the public policy considerations involved.

(d) When a party to a court order obstructs the bailiff in executing the order, whether or not the order contains a provision authorizing the bailiff to do so, he commits a criminal contempt. For such a criminal contempt, no specific intent to interfere with the administration of justice is required. Proof of a basic intent would suffice.”

The actus reus

24.  It was contended for the Defendant that there was no actus reus in this case, as the issue of the Letters was trivial and technical, and they did not pose a real risk of the administration of justice being interfered with. The Defendant claims that there is no evidence that the Accounts Office had indeed been caused to delay payment out or compliance with the Payment Out Order as a result of the Letters. Counsel highlighted that there was only an interim of less than a week in this case: the 1^st Letter was unreservedly withdrawn after 3 days, and the Defendant obtained an interim stay of execution of the Payment Order 5 days after the 1^st Letter. On behalf of the Defendant, it was contended that the Letters made no difference and that any contempt by the issue of the Letters was, at most, technical.

25.  I agree with Counsel for the Plaintiff, that there can be no dispute that the Letters had been issued by GHK, on the Defendant’s instructions, to the Accounts Office. The material question is whether the contents and effect of the Letters can constitute interference with the administration of justice and whether there is the necessary mens rea.

26.  The Defendant explained that around 20 October 2023, she was informed by her lawyers on the Mainland (“GBJ”) that GHK had advised that it would be appropriate to issue a letter to the Accounts Office to inform the Accounts Office of the Stay Application, and to request the Accounts Office to consider whether it would be prepared to suspend the Payment Out pending the determination of the Stay Application. The Defendant knew that GHK issued a letter to the Accounts Office but she had not read the contents of the 1^st Letter. She did not dispute that GHK was authorized by her or on her behalf to send the 1^st Letter, but the Defendant’s evidence is that she had no intention to dictate how the Accounts Office would respond. She never suspected that the course of action proposed by GHK would be unlawful. On 21 October 2023, when she was informed by GBJ that GHK had advised her to withdraw the 1^st Letter, she had agreed. The Defendant claims she was not aware of the issue of the 2^nd Letter until after commencement of these proceedings.

27.  As this Court observed (at paragraph 47) in the Decision of 3 December 2025 on the Plaintiff’s application for specific discovery, there can be no dispute that GHK had been acting on the Defendant’s instructions when the 1^st Letter was issued, and the Defendant had knowledge of and approved the issue of the 1^st Letter to the Accounts Office as advised by GHK. Whether she had read the 1^st Letter, after giving her approval and consent to its issue as advised by GHK, is not material. Although the Defendant claims that the purpose of the 1^st Letter was only to inform the Accounts Office of the existence of the Stay Application, it is also clear from the Defendant’s evidence that such purpose must also include informing the Accounts Office of the Stay Application so that the Accounts Office would consider withholding the Payment Out before the Stay Application was determined and an order made by the Court on the summons. There would have been no other purpose to inform the Accounts Office of the Stay Application and the summons issued.

28.  I cannot agree that the 1^st Letter is not an act inherently likely to interfere with the due administration of justice. As highlighted by Counsel for the Plaintiff, the Accounts Office is the administrative unit of the High Court, which handles payments into and out of court. It is the unit responsible for executing the Payment Out Order made on 6 October 2023.

29.  The Payment Out Order was clear, and mandated the payment of HK $38,400,000 out of court to the Plaintiff “forthwith”. There was no ambiguity in the order, and the Accounts Office was duty bound to comply with the payment as ordered, without any discretion to decide whether or not it would be appropriate to make payment, and when to make payment. These are matters for determination by the Court, and had already been so determined. In the normal course, the payment can be made by the Accounts Office within 10 working days of the sealing of an order.

30.  I accept the submission made for the Plaintiff, that the 1^st Letter was inherently likely to interfere with the due payment and immediate release of the Sum to the Plaintiff pursuant to the Payment Out Order. The 1^st Letter expressly requested the Accounts Office to “withhold any payment out request … until determination of the Stay Application”, despite the fact that the Payment Out Order made no mention of the Stay Application, and provided otherwise by its express provision for payment out “forthwith”.

31.  Counsel for the Plaintiff submitted that the statement in the 1^st Letter, that payment out should be withheld by the Accounts Office in order to “avoid the situation where administrative arrangements pre-empt the Court’s substantive determination of the relevant matters” is offensive as a “thinly-veiled threat”, that the act of the Accounts Office releasing the Sum to the Plaintiff would in fact forestall the Court’s determination of the Stay Application, and was inappropriate. It was contended that on receipt of the 1^st Letter, the Accounts Office was likely to withhold payment of the Sum to the Plaintiff.

32.  I do not accept that the 1^st Letter had no effect, or was incapable of having any effect, or that there was no real risk that the administration of justice would be prejudiced. On receipt of the 1^st Letter, the Accounts Office would take time at least to consider the contents and the request made by the Defendant, or (as suggested by Counsel for the Plaintiff) actually withhold the Payment Out pending any response from the Plaintiff or further clarification from the Court. I agree that compliance with the Payment Out Order would naturally have been delayed, at least until receipt and consideration of the 2^nd Letter, and the unreserved withdrawal contained therein. This is the natural consequence of the 1^st Letter which can be readily perceived, and is not mere speculation as the Defendant contends. Consideration of the 2^nd Letter would also add to the delay in the release of the Sum.

33.  Causing and procuring delay in the due compliance with an order of the Court by the administrative unit responsible for compliance with the order constitutes interference with the due administration of justice. On the facts, I do not agree that such interference is trivial, to be ignored. Nor do I agree that there is no real risk that the course of justice in the proceedings would be seriously impeded or prejudiced, by the delay in payment. The Sum to be paid out to the Plaintiff is substantial and the payment was ordered to be made forthwith, without delay, so that the Plaintiff can utilize the Sum.

34.  In my judgment, the short interim of time or delay involved as highlighted by the Defendant only goes towards mitigation.

35.  The payment of the Sum was ordered by the Payment Out Order and the Defendant had no right after the Payment Out Order to delay or cause the delay in the payment to the Plaintiff. It was only upon the grant of the Interim Stay Order that the Payment Out Order was suspended. The 1^st Letter and the Defendant’s request for payment to be delayed, themselves constituting interference with the administration of justice, cannot be said to have been somehow rectified by the Interim Stay Order later made. I consider the facts of Re Wing Fai Construction Company Limited CACV 244/2004 12 October 2007 to be distinguishable.

36.  I am satisfied that the Defendant’s procuring and instructing GHK to issue the Letters to the Accounts Office, and requesting the Accounts Office to consider the suspension of the payment out constituted the actus reus for contempt.

Mens rea

37.  The dispute in this respect is whether it is necessary to prove the Defendant’s specific intent to interfere with the administration of justice, or whether basic intent to send the Letters is sufficient. However, the parties are in agreement that (as held in Wong Ho Ming) whether a specific intent or a basic intent is required depends on the actual form of contempt before the court and the public policy considerations involved.

38.  Mr Ho, Counsel for the Defendant, made the distinction between acts of contempt in the face of the court, which demand strict responsive action to uphold the administration of justice such that proof of specific intent would not be required, and “more ambivalent conduct” where specific intent must be proved. As an example of the latter type of conduct, Counsel referred to the case of Dobson v Hasting [1992] Ch 394, where a newspaper journalist was found not to have the necessary mens rea for contempt, when she harbored the mistaken belief that it was simply a mere formality to obtain the necessary leave before her inspection of documents at the court offices, leading her to not seek such leave. In the judgment of the Court, Nicholls VC observed:

“The boundary line is to be drawn at the point where there has been a taking of information from documents in the custody of the court knowing that leave was needed and that it had not been obtained. In such cases there is an act of interference with the judicial process; there is also an intention to interfere, because the act was done with knowledge that it was a contravention of the prescribed judicial process.”

39.  Mr Ho also drew analogy from the courts’ approach to mens rea for the crime of perversion of the course of justice, where the proof of specific intent to pervert the course of justice turns on whether the conduct in question has a “manifest tendency to pervert the course of justice”. Reliance was placed on the judgment of the Court of Final Appeal in HKSAR v Wong Chi Wai (2013) 16 HKCFAR 539 where it was observed (at para 32 of the judgment):

“(a) To prove that a defendant intended to prevent the course of justice, it is necessary to prove that he knew that his conduct would have or that he intended it to have a tendency to pervert the course of justice in relation to the curial proceedings in question.

(b) Where his conduct has a manifest tendency to pervert the course of justice, the required intention may readily be inferred from proof that the defendant intended to perform the relevant act. But where the act does not manifestly have the prohibited tendency, it is necessary to prove the abovementioned specific intent on the defendant’s part.” (emphasis supplied)

40.  In this case, it was contended for the Defendant that the issue of the Letters is not conduct which is contempt in the face of the court, cannot be equated to open or physical obstruction of bailiffs in the execution of duties (as in Wong Ho Ming), is ambivalent in nature, and accordingly requires proof of specific intent.

41.  As the parties accept, determination of the applicable mens rea is guided by considerations of public policy.

42.  On behalf of the Plaintiff, Counsel relies on the matters already set out at paragraphs 28 and 29 above, as to the important role and functions of the Accounts Office, as an arm of the Court in administering justice. The matter has in my judgment been clearly considered and explained by Poon JA in Wong Ho Ming where, after having analyzed the authorities on mens rea, His Lordship concluded at paragraph 78 of the judgment:

“78. First, it is axiomatic that in Hong Kong where the rule of law reigns, the due administration of justice can in no way be interfered with. Those who strike at it strike at the very foundations of our society. As Salmon LJ observed in Jennison v Baker [1972] 2 QB 52 at p 61, quoted by Lord Oliver in Attorney-General v Times Newspaper Ltd (HL) (1992) at p 216C-D :

“The inherent power of the judges of the High Court to commit for contempt of court has existed from time immemorial.…The power exists to ensure that justice shall be done. And solely to this end, it prohibits acts and words tending to obstruct the administration of justice. The public at large no less than the individual litigant have an interest and a very real interest in justice being effectively administered. Unless it is so administered, the rights, and indeed the liberty, of the individual will perish.”

In a like vein, Lord Oliver at p 216A-B spoke of the court’s power to commit for contempt thus :

“It is as essential as it is ancient, for unless litigants can be assured that the rights which it is the duty of the courts to protect can be fairly determined and effectively protected and enforced the system of justice necessarily ceases to command confidence and an essential foundation of the structure of civilized society is undermined.”

79. Second, there are many facets of administration of justice that need to be protected. So correspondingly, challenges to the administration of justice embrace various kinds of conduct. The result is that contempt, which is only a generic term, in reality takes many forms : See Attorney‑General v Times Newspaper (HL) (1974), per Lord Diplock at p 307H. Despite its protean nature, contempt has been traditionally classified under two heads, namely, civil contempt and criminal contempt.

80. Civil contempt involves a breach of a court order or undertaking given to the court by a party to the proceedings. As Lord Oliver in Attorney-General v Times Newspaper Ltd (HL) (1992) at p 217G-H explained :

“One particular form of contempt by a party to proceedings is that constituted by an intentional act which is in breach of the order of a competent court. Where this occurs as a result of the act of a party who is bound by the order or of others acting at his direction or on his instigation, it constitutes a civil contempt by him which is punishable by the court at the instance of the party for whose benefit the order was made…”

For civil contempt, only basic intent in the sense that the contemnor’s conduct was intentional and that he knew of all the facts which made it a breach of the order, is required : Kao, Lee & Yip v Koo Hoi Yan, per Sir Gerard Brennan NPJ at [45]-[46] and [50]-[53].

81. Criminal contempt involves other forms of interference with the due administration of justice, either in a particular case or more generally as a continuing process : cf Attorney-General v Newspaper Publishing Plc (CA), per Sir John Donaldson at p 362D.

…

83. Fourth, there are occasions where the disobedience or breach of a court order is sufficiently flagrant to warrant the imposition of a penal rather than a merely coercive sanction. For example, the scale and nature of the breach of the order is such that the contempt threatens the due administration of justice as a whole. Or when the disobedience or breach of the order also gives rise to a particular form of criminal contempt. When such occasions arise, the civil contempt would also amount to a criminal contempt : see Report of the Committee on Contempt of Court 1974,19 at §22. 20”

43.  At paragraph 84 of the judgment, Poon JA made the following observations on the duty of a bailiff as an officer of the court:

“ In executing the order, the bailiff is also discharging his duty as an officer of the court. In so discharging his official duty, the bailiff’s conduct in executing the order is part and parcel of the due administration of justice. When a party in breach of the order obstructs the bailiff in executing the same, he is obstructing the due administration of justice, thereby committing a criminal contempt : Halsbury’s Law of England, Vol 22, §§17 and 49. As Sir Richard Scott VC in De Court Re [1997] TLR 601, explained :

“The administration of justice depends not simply on the judges or upon counsel in court, it depends upon court officials…discharging essential functions for the purpose of enabling cases to come to court and to be dealt with by judges and counsel in the way with which we are all familiar. In my judgment a physical interference with officers of the court while conducting their duty in furthering the administration of justice is indeed a contempt of court.”

85. In De Court Re, the contemnor physically assaulted a court officer while he was engaged in official business. It was held that he had the requisite mens rea if he intended to do what he had done and did it consciously. In other words, a specific intent to interfere with the due administration of justice was not required. In our view, there is no distinction in principle between an assault against a court officer in discharging his duty and other forms of interference with the latter’s performance of his duty. The same requirement for basic intent would also suffice for the latter. In cases of obstructing a bailiff in discharging his duty, such as executing a court order, the contemnor must know or be taken to know that in obstructing the bailiff, he is also at the same time obstructing the administration of justice. Any requirement for specific intent is therefore superfluous. In other words, no specific intent to interfere with the due administration of justice is required.

86. But not only that. When executing court orders, bailiffs act as an extended arm of the court in administering justice. As a matter of public policy, bailiffs must be fully protected from interference by parties when executing orders against them in the discharge of their duty. To require the proof of specific intent would open the door for arguments over what the alleged contemnor knew or did not know, intended or did not intend. It would not only introduce much unwanted uncertainty into the equation where certainty is most required, but also make the very often difficult job of bailiffs even more difficult. All this is bad for the due and effective administration of justice in Hong Kong.

87. Any sense of injustice to the alleged contemnor arising from not requiring the proof of specific intent is militated by the fact that, by definition, (1) the alleged contemnor was a party who had been served with and was bound by the court order in question; (2) the person whose discharge of duty the alleged contemnor is said to have interfered with was to his knowledge a bailiff; and (3) to his knowledge also, the duty the latter was discharging was the execution of the very court order that the alleged contemnor had been served with and was bound by.”

(Emphases added)

44.  The conclusion made on mens rea is set out at paragraph 89 of Poon JA’s judgment:

“Applying the above public policy considerations and principles, we hold that when a party to a court order obstructs or interferes with the bailiff in executing the order, whether or not the order contains a provision authorizing the bailiff to do so, he commits a criminal contempt. For such a criminal contempt, it is sufficient to prove as mens rea that he intended to do the acts which constituted the actus reus of the contempt. No specific intent to interfere with the administration of justice is required. In other words, so long as the acts of the alleged contemnor are inherently likely to obstruct or interfere with the bailiff when he is executing an order, and the contemnor intends to do the acts, that would be sufficient. There is no need to go further to prove an intention on the part of the contemnor to interfere or obstruct though very often such intent is self-evident or can be readily inferred.”

45.  Whilst a distinction may be made between the court bailiff and the Accounts Office of the court, the former being an officer of the court, I am not persuaded that any such distinction detracts from the significance of the fact that the Accounts Office is charged with the duty of executing orders of the Court in effecting payments made into and out of court. As Counsel for the Plaintiff rightly pointed out, if parties are allowed to write to the Accounts Office, to persuade it not to release funds in the face of an order of the Court directing such a release, the established procedures of the Court would be subverted and the Accounts Office would be inundated with requests and administrative chaos would be created.

46.  Following the analysis made in Wong Ho Ming, the Accounts Office should be protected from interference by parties when carrying out orders of the Court in the discharge of its duties. Parties cannot be encouraged to challenge and disregard court orders without going through the appropriate avenues of appealing against the orders or applying for stay of execution of the orders. Mr Chen submitted for the Plaintiff that to require proof of specific intent for criminal contempt in this case would be opening the door for arguments as to knowledge and intention, which was discouraged by the Court in Wong Ho Ming (at para 86 of the judgment of Poon JA).

47.  It was highlighted by Mr Chen that the matters set out at paragraph 87 of Poon JA’s judgment apply with the same force to the Defendant in this case, as the party to, served with and bound by the Payment Out Order. She knew that the Payment Order had been made, and that it directed payment out of court of the Sum forthwith. She also knew that the Accounts Office was the administrative unit of the Court which was responsible for releasing payment of the Sum forthwith, and for discharging its duty to execute and comply with the Payment Out Order to which the Defendant was a party, had been served with and was bound by.

48.  Having considered the nature and form of the act in this case, my conclusion is that it is sufficient to prove as mens rea that the Defendant intended to do the act of instructing and allowing the issue of the 1^st Letter, and it is not necessary to show that she specifically intended to interfere with or obstruct the administration of justice.

49.  Even if I should be wrong, and specific intent is necessary in this case, my finding is that the intention to interfere with the administration of justice is clear and can readily be inferred from the Defendant’s agreement to the issue of the 1^st Letter, for the purpose she confessed to.

50.  At paragraph 17 of the Defendant’s affirmation, she stated that she had been informed that GHK considered it “appropriate and advisable” to issue a letter to the Accounts Office to inform them of the existence of the pending Stay Application, and to request the Accounts Office “to consider whether it would be willing to suspend the payment out of the Sum” pending the Stay Application. At paragraph 18 of her affirmation, the Defendant stated that her understanding of the issue of the 1^st Letter was “to draw the attention of the Accounts Office to the fact and existence of the Stay of Execution Summons and/or any potential appeal against the Setting Aside Order”. Her purported intention was to leave it to the Accounts Office to decide on the appropriate action, but there was no other appropriate action, or option, open to the Accounts Office. It was required by the Payment Order to release payment of the Sum forthwith, as the Defendant well knew. There was nothing for the Accounts Office to consider.

51.  It is therefore clear from the Defendant’s evidence on the admitted purpose of the issue of the 1^st Letter, that the 1^st Letter was issued for the sole purpose of seeking the withholding of the release of the Sum, in circumstances when there was, to the Defendant’s knowledge, a Payment Out Order in existence. By asking the Accounts Office to withhold payment and to consider whether it was appropriate to do so, the Defendant was asking the Accounts Office to ignore the Payment Out Order of the Court. Intending so to do by the issue the 1^st Letter is intending to interfere with the Court order and with the administration of justice.

52.  I do not agree that the Defendant’s act is trivial, and that the contempt proceedings do not serve any utility. The authority of the court process cannot be undermined. As Poon JA highlighted from the judgment of Lord Oliver in Attorney-General v Times Newspaper Ltd (HL) [1974] AC 273, litigants must be assured, not only that the rights which it is the duty of the courts to protect can be fairly determined, but also that such rights would be “effectively enforced”. If parties such as the Plaintiff cannot enforce the Payment Out Order and cannot expect that the Payment Out Order will be enforced and implemented by the Court through the Accounts Office, there cannot possibly be public confidence in the system of justice.

53.  If it can be shown that the act does not warrant a serious penalty, or that the Defendant had been misguided by bad legal advice, those matters can in my judgment be addressed in mitigation and when the question of the appropriate penalty is considered.

Disposition

54.  I find that the Defendant has acted in criminal contempt of Court.

55.  The Amended Originating Summons is adjourned to a date to be fixed in consultation with Counsel’s diaries, with 2 hours reserved, for the purpose of considering mitigation, sentencing and costs.

56.  The following directions are made:

(1)  the Defendant is at liberty to file an affirmation in respect of mitigation, if any, within 21 days;

(2)  the Defendant shall attend the adjourned hearing of the Amended Originating Summons, and in default, a warrant for her arrest be issued;

(3)  the Plaintiff shall file and serve skeleton submissions and authorities (if any) not later than 14 days before the adjourned hearing;

(4)  the Defendant shall file and serve skeleton submissions and authorities (if any) no later than 7 days before the adjourned hearing; and

(5)  costs be reserved.