WINSOME PAINTS CO. LTD. v. WONG YIN SUN t/a YAU CHEUNG PAINT AND DYE CO.

HCMP 3185/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3185 OF 2002

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J U D G M E N T

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1. This is a motion brought by the Applicant for an order of committal against the Respondent, Mr Wong Yin Sun, who has been at all material times trading as Yau Cheung Paint and Dye Company, in respect of his failure or refusal to comply with paragraphs 2, 3 and 4 of an Order made by me in HCA 809/2002 on 10 May 2002. Those paragraphs of my earlier order relate to the delivery up to the Applicant's solicitors for safe keeping products that infringe the registered trademark of the Applicant, the making and filing of an affirmation and the service thereof on the Applicant's solicitors in that action verifying that he has complied with the delivery-up order, and the making and filing of an affirmation and the service thereof on the Applicant's solicitors disclosing information relating to his obtaining supply of the infringing products as well as the orders that he has received relating to the products in question.

2. The order was sealed on 10 June 2002. A penal notice in accordance with the requirements of the rules was endorsed on the backsheet of the sealed order.

3. According to evidence placed before me, the order was personally served on the Respondent on the same day who, it may be noted, has never entered any appearance in the High Court action. The Respondent failed or refused to comply with any of those 3 paragraphs in my order. I have evidence to that effect from a Mr Lee Fu Wah of the Applicant. I have no reason to doubt his evidence. In those circumstances, the Applicant applied for and successfully obtained leave from me to issue the present committal proceedings.

4. The notice of motion, the statement pursuant to order 52, rule 2(2) as well as the affirmation of Lee Fu Wah which contained the necessary evidence relating to non-compliance with my order were personally served on the Respondent on 28 August 2002. On the notice of originating motion, a hearing date of the motion i.e. today's date, was clearly set out. As regards the service of documents personally on the Respondent, I have before me several affirmations of service by the document server. I have no reason not to accept her evidence.

5. At today's hearing, the Respondent has not turned up; nor has he put in any evidence or material to oppose the present motion, or indeed to give any explanation or excuse for his refusal or failure to comply with the relevant paragraphs in my earlier order, none of which he is of course obliged to do if he does not want to.

6. Having heard detailed submission from counsel appearing for the Applicant, I am persuaded on the material before me, based on the criminal standard of proof, that a case of contempt has been made out by reason of the non-compliance by the Respondent with paragraphs 2, 3 and 4 of my earlier order. He has had due notice of the order by means of personal service. The order set out clearly what he was required to do and the time within which he had to do it. He has been warned of the importance of complying with the court order as the requisite penal notice has been endorsed on the order. A letter in Chinese dated 24 June 2002 setting out the relevant paragraphs in my order and warning the Respondent of the Applicant's application for leave to issue contempt proceedings was also sent by the Applicant's solicitors to the Respondent by certified post. I have nothing before me to suggest that the Respondent was not aware of what he was required to do under the court order or that his non-compliance with the order, which as mentioned above has been proved by evidence, was accidental.

7. The Respondent has been given due and sufficient notice of the present committal proceedings by personal service of the court documents. He has chosen not only to disregard the court order but also not to appear before this Court at today's hearing to explain his position, or at least to seek an indulgence for an extension of time to comply with the relevant parts of my order, so as to purge the contempt. In other words, even up to today's date, none of what I have ordered several months back in my order has been complied with by the Respondent.

8. A court order is made to be obeyed. This is a case in which a court order has been fragrantly disregarded. This cannot be condoned or lightly tolerated. In fact a strong message should be sent by the court to the public that all court orders must be duly, punctually and fully obeyed as ordered. This is important to the proper administration of justice in Hong Kong.

9. I view this as a very serious matter. The Respondent has not made any effort to tell this Court what if any difficulties or reasons that he may be having or may have had in relation to compliance with the relevant parts in my order. There is no mitigating factor so far as I can see from the material that is placed before me. Certainly, the Respondent has not sought to put in any mitigating material.

10. Taking everything into account, in my judgment, a short term of imprisonment is the appropriate sentence in the present case. In those circumstances, I make an order that the Respondent be committed to prison for a period of 21 days.

11. As regards the costs of these proceedings, they must be paid by the Respondent to the Applicant to be taxed, if not agreed, on a full indemnity basis.