HIGH FASHION NEW MEDIA CORPORATION LTD (suing on behalf of itself and also in its capacity as the sole shareholder of LONGFORD INFORMATION AND TECHNOLOGY CO., LTD) v. LEONG MA LI

HCMP 932/2020

[2025] HKCFI 3992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 932 OF 2020

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BETWEEN

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DECISION

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A. INTRODUCTION

1.  By a Judgment handed down on 26 July 2022 (“the Liability Judgment”), the defendant was found guilty of having committed contempt of court in failing to comply with an order in HCA 1953/2014 of Chow J (as he then was) (“the Injunction Order”).

2.  By a Decision (“the Sentencing Decision”) made at the end of the hearing held on 30 May 2024, the defendant was committed to prison for a period of 4 weeks (“the Committal Order”). This Court further ordered that the execution of the Committal Order be suspended pending the determination of the defendant’s appeal against the Liability Judgment, on the condition that the defendant paid $500,000 into Court by 4pm on 31 May 2024. She was also ordered to put the sum of RMB8,606,600.43 (or an equivalent sum in Hong Kong Dollars) into an escrow account opened in the name of the plaintiff in an independent law firm.

3.  The defendant’s appeal against the Liability Judgment (“the Liability Appeal to CA”) has since then been dismissed by the Court of Appeal (CACV 341/2022, [2024] HKCA 1067), which has also rejected the defendant’s application for leave to appeal to the Court of Final Appeal (“CFA”) ([2025] HKCA 220). By virtue of a Notice of Motion filed on 1 April 2025, the defendant is now applying to the CFA for leave to appeal, and the decision of which is still pending.

4.  On the other hand, the defendant is also appealing against the Sentencing Decision (CACV 258/2024) (“the Sentencing Appeal”), which has been fixed to be heard by the Court of Appeal on 16 January 2026.

5.  There are 3 summonses before this Court:

(1) The defendant’s summons filed on 15 November 2024 (“D’s 1^st Stay Summons”) for an order that the execution of the Committal Order be suspended or stayed until 28 days after the disposal of the Sentencing Appeal;

(2) The defendant’s summons filed on 5 December 2024 (“D’s 2^nd Stay Summons”) for an order that the execution of the Committal Order be suspended or stayed until 28 days after:

(a) the disposal of the defendant’s application to the Court of Appeal and (if necessary) the CFA for leave to appeal against the Court of Appeal’s Judgment dated 18 November 2024 in CACV 341/2022,

(b) if leave to appeal is granted, the determination of the defendant’s appeal by the CFA, or

(c) further order of the Court; and

(3) The plaintiff’s summons filed on 12 December 2024 (“P’s Activation Summons”) for an order that the Committal Order be activated, and if necessary, a warrant for committal against the defendant be issued; alternatively, if the execution of the Committal Order is to be suspended, various conditions be imposed.

B. D’S 1^ST STAY SUMMONS

B1. Necessity for considering merits of the appeal against sentence

6.  In gist, it is argued on behalf of the defendant that the execution of the Committal Order should be suspended pending the Sentencing Appeal because otherwise such an appeal would be rendered nugatory.

7.  The defendant also heavily relies on the fact that:

(1) this Court took the view in the Sentencing Decision that justice requires that the defendant should only be ordered to serve her sentence upon dismissal of her appeal, as the defendant would have fully served her 4 weeks’ imprisonment by the time of the appeal;

(2) by reason of the Sentencing Appeal, there is, in substance, no material change in circumstances since the Sentencing Decision despite the dismissal of the Liability Appeal to CA.

8.  However, it should be noted that the aforesaid view of this Court was expressed in the circumstances where the plaintiff also agreed with such an approach at the time, and as a result, this Court’s attention was not drawn to those case authorities which Ms Rachel Lam SC and Ms Eva Leung have now cited to this Court. Put it in another way, the stay/suspension of the Committal Order was in effect given by consent.

9.  Having considered those authorities, I agree that a short sentence alone (and the possibility that the appeal would/might be rendered nugatory) does not automatically entitle the defendant to a stay of execution of the imprisonment or an order to that effect.

10.  It is of course trite law in relation to civil proceedings, in respect of which it has been said that the existence of an arguable appeal (that is, one with reasonable prospect of success) is the minimum requirement before a court would even consider granting a stay: Star Play Development Limited v Bess Fashion Management Co. Ltd. [2007] 5 HKC 84. However, taking into account the fact that the execution envisaged in civil proceedings does not concern liberty of any person, one may have doubt as to whether such a legal principle should be applicable to cases such as the present one.

11.  As a result, I think the Court should consider the approach adopted in criminal cases in which the accused is sentenced to a short term of imprisonment.

12.  Mr Wong Yan Lung SC together with Mr Howard Wong and Mr Shaun Elijah Tan disagree, and have referred to the following authorities in support of their contention that the policy consideration of the criminal proceedings and contempt proceedings are fundamentally different:

(1) In Secretary for Justice v Persons Conducting in Acts Prohibited Etc (274/2023, 303/2023) (Use of Protest Song) [2024] 3 HKLRD 32, Poon CJHC stated at [67] that:

“It is settled that contempt proceedings are distinct from criminal proceedings although they may arise from the same facts: Director of Public Prosecutions v Tweddell [2002] 2 FLR 400, per Latham LJ at [14]. Contempt proceedings are founded on the inherent jurisdiction of the court to enforce its orders with the primary purpose of preventing interference with the due administration of justice, which is different from criminal proceedings for maintenance of law and order […]”

(2) In Director of Public Prosecutions v Tweddell [2002] 2 FLR 400, it was held at [14] by Latham LJ that:

“In domestic law contempt proceedings and criminal charges have different purposes. As far as the proceedings for contempt are concerned, as Hale LJ said in Hale v Tanner; Practice Note [2000] 1 WLR 2377, sub nom Hale v Tanner [2000] 2 FLR 879, there are two objectives. First, the court has to mark the court's disapproval of disobedience to its order; secondly, it has to consider how best to secure future compliance with the order. Those are two considerations which are quite different and separate from the considerations which are raised by a criminal charge. Unlike contempt proceedings, which are essentially proceedings between the court seeking to enforce its order and the contemnor, criminal proceedings are between the public and are concerned with different considerations.”

(3) In Arlidge, Eady & Smith on Contempt (5^th edition, 2017), the learned author wrote at §2-15 that:

“The specific duty of the court under the contempt jurisdiction is to protect the integrity of the justice process, whereas the police and CPS are concerned to investigate crime and bring criminals to justice. Moreover, the evidential test under the Code for Crown Prosecutors has no application to contempt proceedings.”

13.  With respect, I do not agree that the authorities are relevant for the present purpose, for the views as quoted above were expressed in entirely different situations:

(1) In the Secretary for Justice case, the issue was whether there were any real and substantial conflicts between contempt proceedings and criminal proceedings such that the injunction application made in that case ought to be refused;

(2) In Director of Public Prosecutions v Tweddell, the Court was considering whether, upon a respondent having been imposed a 3-month sentence of imprisonment for breach of an injunction, to subject him to a criminal charge on the basis of the same set of facts would amount to an abuse of process of the court;

(3) In Arlidge, Eady & Smith on Contempt, the learned author was dealing with the overlap between contempt and the general criminal law.

14.  In the context of criminal law, it has been held by Zervos JA in HKSAR v Chow Yuen-kong [2019] HKCA 1340 that:

“6. It is well settled that there is no right to be admitted to bail pending appeal after a person has been convicted and sentenced to a term of imprisonment. That is fundamentally because a convicted person has lost the presumption of innocence.

7. It follows that to admit an appellant to bail pending appeal is only done in exceptional circumstances and clearly at the discretion of the court. To this end, the court must exercise such discretion judicially and should grant bail pending appeal when it is just to do so.[1]

8. It is accepted that when deciding whether to grant bail pending appeal relevant considerations generally involve the strength of the grounds of appeal and the length of sentence served by the time the appeal is heard. It can be granted where there is a reasonable prospect of success of the applicant’s appeal or where there is a risk that the sentence imposed on the applicant will have been served by the time the appeal is heard, subject to the applicant having a reasonably arguable case on appeal.”

(emphasis added)

15.  His Lordship has reiterated the above in the recent case of HKSAR v Wong Wai Wah [2025] HKCA 540 at [7]:

“Bail pending appeal is an exceptional remedy after conviction which may be granted where it appears that the appeal has a strong likelihood of success (the ‘merits ground’), or where there is a likelihood that all or a substantial part of the sentence would be served before the disposal of the appeal (the ‘time ground’). In considering the time ground, it must also be demonstrated that the appeal is at least reasonably arguable or promising. In other words, the grounds of appeal are reasonably arguable in that they afford some real chance of success.”

(emphasis added)

16.  It can therefore be seen that the approach adopted in criminal cases are similar to that followed in civil cases – the minimum requirement is that there exists an arguable appeal.

17.  In HKSAR v Lau Man Kin [2010] 1 HKLRD 336, Tang VP (as he then was) has explained further that:

“6. Of course as Bokhary JA said in Oscar Lai Ka To, bail pending appeal is not practically inevitable even in cases of relatively short sentences. That is why, for example, in HKSAR v Kwok Chi Fai, CACC 473/2000, unreported, dated 20 December 2000, Stock JA refused bail because the prospect of success was negligible, although the applicant would have served a substantial part of his sentence before the appeal could be heard.

7. Section 83R of the Criminal Procedure Ordinance, Cap.221 gives power to this court to grant bail pending appeal “if it thinks fit”. As Bokhary JA has explained in Oscar Lai Ka To, the jurisdiction of this court to grant bail pending appeal is not fettered. Naturally the discretion must be exercised judicially and the court should only grant bail when it is just to do so. After conviction, bail would be the exception rather than the rule.

8. Ms Wong for the respondent has submitted that even when an application for bail is made on the time ground, bail should not be granted unless the applicant can show that the appeal is highly likely to be successful. With respect, I do not agree. The submission is contrary to authority. The right to appeal (and an application for leave to appeal is effectively the appeal) must not be rendered illusory. That does not mean in a case where the appeal is unlikely to succeed bail should nevertheless be granted. That would encourage unmeritorious appeals and is not conducive to good administration of justice. In a case where the appeal is reasonably arguable. I believe bail may be granted on the time ground as explained above.”

(emphasis added)

18.  The defendant’s counsel team has further referred this Court to Dadra Inc. v Chan Choi Har Ivy [2023] HKCA 707, in which the defendant applied for stay of execution of the order of 6-week imprisonment, in which Chow JA held at [15] that:

“Without a stay, the Defendant’s appeal will likely be rendered nugatory because, by the time that the appeal is heard and disposed of, the Defendant will likely have completed serving the term of imprisonment imposed by the Master.”

19.  However, what Chow JA said at [12] and [14] is also important:

“12. The applicable principles for a stay of execution of an order of judgment pending appeal are well settled and do not require repetition (see Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84 §§6-10).

[…]

14. Having read and considered the parties’ submissions and the authorities referred to, we consider the Jurisdiction Ground to be reasonably arguable (ie one with reasonable prospects of success). Having reached this view, it would not be appropriate for us to further discuss the merits of this ground, which will have to be fully argued at the substantive hearing of the appeal. It also becomes unnecessary for us to deal with the merits of the remaining grounds of appeal, suffice it for us to indicate that we would not be minded to grant any stay of execution of the Order on any one or more of those grounds.”

20.  The above is self-explanatory. I cannot see why the same approach should not be adopted herein.

21.  My attention has also been drawn by the defendant to the Court of Final Appeal case of Sher Ali Khan v HKSAR (2006) 9 HKCFAR 791, in which Bokhary Acting CJ emphasised that:

“[...] the Judiciary, always highly protective of liberty, will do whatever it can reasonably do to avoid his applications [for leave to appeal to the Court of Final Appeal and for bail pending appeal] being rendered nugatory by the passage of time” (at [4])

22.  However, that does not mean that the CFA would disregard the merits of the application for leave to appeal. Indeed, in the above case, the Acting Chief Justice expressly stated that the determination of the question of bail required considering whether there were any reasonable prospects of leave to appeal to the CFA being granted to the applicant.

B2. Merits of the appeal against sentence

23.  I would therefore turn to consider the merits of the Sentencing Appeal.

24.  In gist, the defendant’s grounds of appeal against the Sentencing Decision are that:

(1) The findings that the defendant breached the Injunction Order “at least partly for her own benefit” and “had pocketed at least part of Longford’s funds” are not allegations which have been pleaded and therefore should not have been relied on by this Court. Those findings are also not supported by evidence (“the 1^st Sentencing Ground”);

(2) Contrary to this Court’s finding, the Revised Purging Proposal[2] would purge the contempt and remedy any prejudice caused by the contempt (“the 2^nd Sentencing Ground”);

(3) The finding that the defendant’s breach of the Injunction Order was contemptuous is not supported by any plea, evidence or proper reasoning (“the 3^rd Sentencing Ground”);

(4) Taking into account the principle that imprisonment is a sanction of last resort, custodial sentence in the circumstances of this case is manifestly excessive and wrong in principle (“the 4^th Sentencing Ground”);

(5) The imposition of immediate custodial sentence (as opposed to a suspended custodial sentence) is inappropriate and unjustified in light of the personal circumstances of the defendant, namely:

(a) the death of her son;

(b) the medical condition of her husband; and

(c) the fact that the defendant is the only person who can act as caretaker of her husband.

(“the 5^th Sentencing Ground”)

25.  While considering the merits of these grounds, it has to be borne in mind what the Court of Appeal reminded in [8.3] of China Shanshui Cement Group Limited & Others v Zhang Caikui & Another [2021] HKCA 1139 in which the defendant therein appealed against, among others, the sentence imposed on him upon the court’s findings that he had breached certain injunction orders:

“Ultimately the sentence imposed by the Court is an exercise of judicial discretion: SJ v Yuen Oi Yee Lisa [2011] 1 HKC 346 at [9] per Chu J (as she then was). Accordingly, the principles governing an appeal from the Court’s exercise of discretion applies and the Court of Appeal will not interfere unless the judge’s exercise of discretion is flawed under the established principles.”

B2.1 The 1^st Sentencing Ground – the defendant’s own benefit

26.  On the 1^st Sentencing Ground, with respect, I do not think it is wrong for the Court to rely on such matters, since it was the defendant who raised them during mitigation in the first place (see [62] of the Sentencing Decision).

27.  Once the defendant has put those matters in issue, it is not up to the defendant to say that the Court should not consider those matters if they are in fact to her disadvantage.

28.  As to the challenge of this Court’s findings of fact that the Injunction Order was breached “at least partly for her own benefit” and that she “had pocketed at least part of Longford’s funds”, it is trite that the Court of Appeal would not lightly interfere with factual findings of the trial judge.

29.  In this regard, it was submitted on behalf of the defendant that there was no proof or findings that the employees mentioned in [66] of the Sentencing Decision had received funds for the benefit of the defendant or payments to them were somehow channelled to the benefit of the defendant. However, with respect, it is a red-herring to focus on the employees solely. One only has to refer to [66(4)] – [66(8)] of the Sentencing Decision so as to understand why such findings were arrived at[3].

30.  It is therefore my conclusion that this ground is not reasonably arguable.

B2.2 The 2^nd Sentencing Ground – the Revised Purging Proposal

31.  Pursuant to the 2^nd Sentencing Ground, the defendant argued that this Court had overlooked the fact that the Revised Purging Proposal would practically achieve the same result despite the fact that the monies to be paid back by the defendant were not paid to the plaintiff, because the plaintiff would not be in a position to deploy any of the monies except with the consent of the defendant anyway.

32.  With greatest respect, this argument is not understood, because this Court had accepted that the revised proposal could partly purged the contempt.

33.  However, the effect of the Revised Purging Proposal is apparently different from the situation in which the monies were paid back to the place where they came from, otherwise, there was no point in the defendant insisting to limit her purging act to this Revised Purging Proposal. As this Court recorded in [97] of the Sentencing Decision:

“[…] this Court has not forgotten about the defendant’s alleged rationale of the Revised Purging Proposal – she was worried that if she returned the monies to the plaintiff/Longford, such monies would be under the control of the Lams, and there was no mechanism for the protection of such monies.”

34.  Indeed, it was further commented at [98] that:

“With respect, such explanation is simply unacceptable, for there is no evidence that the Lams will misappropriate the monies to be paid back by the defendant. The defendant’s explanation only demonstrated that she placed her own interest over the purging of her contempt.”

35.  As the plaintiff’s senior counsel pointed out, the practical effect of the Revised Purging Proposal is to add an extra layer of administrative inconvenience to the Longford Account Protocol. It therefore lies ill in the defendant’s mouth to say that she had fully purged her contempt.

36.  It is therefore my conclusion that this ground is not reasonably arguable.

B2.3 The 3^rd Sentencing Ground – Contemptuous breach

37.  Under this ground, the defendant argued, inter alia, that:

(1) An allegation of bad faith is a serious allegation which has to be distinctly pleaded and proved;

(2) Yet, neither was it pleaded nor proved;

(3) The Court’s inference of contemptuous conduct was drawn upon incorrect or incomplete consideration of the evidence;

(4) It is a fact that by an email dated 23 October 2017 (“the 2017 Email”), the defendant expressly instructed 唐魯華 (“Tong”), an employee of Longford, that she should timeously seek approval from the ultimate shareholders of Longford. If Tong had followed this instruction, even if she did not know of its terms, the Injunction Order would not have been breached. Hence, the 2017 Email itself is compelling evidence of good faith. Further, there is no plea or proof that the defendant knew or should have known that Tong would not seek the requisite approval from the plaintiff;

(5) While the defendant might not have succeeded in putting in place an effective system to ensure that there was no dealing with the Capital Account[4] except in accordance with the specified signing arrangement, this is not evidence, not to mention evidence beyond reasonable doubt, that the defendant knew or should have foreseen Tong (a) would ignore the 2017 Email, or (b) would go back on Tong’s own promise to the defendant in Tong’s reply, or (c) would stop making the written applications to the plaintiff for approval (as she had been doing), (d) but would instead withdraw funds from the Capital Account and/or the Current Account[5] without first obtaining the plaintiff’s approval. Furthermore, even if defendant could have foreseen more or done more, any failure could have been carelessness at the highest, not contumacious conduct beyond reasonable doubt;

(6) It is evident that the defendant had at the very least made efforts in good faith to ensure that the Injunction Order would not be breached, however inadequate objectively.

38.  Similar arguments on pleading and finding of facts had been made but rejected by the Court of Appeal in the Liability Appeal to CA (see [2024] HKCA 1067, at [103] – [106]).

39.  Furthermore, the defendant had completely disregarded [53] – [55] of the Sentencing Decision, which are quoted below for easy reference:

“53. One of the main mitigating factors relied on by the defendant’s counsel was that there was no finding in the Judgment that the defendant had breached the Injunction Order intentionally or recklessly. Heavy emphasis had been placed on the Court’s finding that she had failed to take reasonable steps to prevent Tong from committing acts which were not compliant with the Injunction Order. It was stated that this is equivalent to a finding of negligence only.

54. With greatest respect, such a line of argument was made in total disregard of the findings made in the Judgment:

(1) Since the defendant’s case was that she had entrusted Tong to comply with the Injunction Order, the test is whether the defendant had taken all reasonable steps to see that her orders to Tong had been obeyed. The relevant legal principles had been cited at [26] of the Judgment, and this Court had considered the defendant’s case by following such guidance. That is the reason why this Court had used the ‘reasonable steps’ test as the yardstick in the Judgment. However, it would be taking the findings made by this Court totally out of context to say that this Court only found that the defendant had been negligent;

(2) Indeed, it has been held in the Judgment that the defendant must be taken to have authorised Tong to deal with the Capital Account in the absence of Yau’s or Will Lam’s signature (as the case may be), and that the defendant must also have foreseen that ‘備用金’ would be transferred from the Capital Account in the absence of the required signature of Yau/Will Lam.[6]

55. The very bold suggestion made by the defendant’s counsel that the defendant had an honest and bona fide intention to comply with the Injunction Order is also totally contradicted by the findings made in the Judgment. For example, the defendant had been found to be in blatant disregard of the Injunction Order as far as the Category B transactions are concerned[7]. It was also found that she had never informed Tong the terms of the Injunction Order[8]. Moreover, it was found that the Injunction Order would be breached even if Tong had acted in full compliance with the defendant’s instructions given by virtue of the 23 October 2017 Email[9].”

40.  I should also add that the defendant’s pleading point is a non-starter, for a contemnor should be punished for the substance of his/her contempt and not for what he/she had originally been charged with: Arboit v Koo Siu Ying (No 2) [2016] 3 HKLRD 154 at [12].

41.  Furthermore, as I pointed out above, I find it unreasonable if the defendant is allowed to run a point (the mitigation that she did not breach the Injunction Order intentionally or recklessly), and then argue that the Court cannot use such a point against her in the circumstances where the Court makes a finding on such a point which is not in her favour.

42.  In any event, as pointed out by the plaintiff’s counsel, the plaintiff has indeed pleaded in §6(f)(2) of the Amended Statement that:

“Therefore, Mary Leong’s decisions to only renew part of the original fixed deposit(s) and not to renew the other part of the fixed deposit(s) constitute deliberate, intentional, and voluntary breaches by dealing with the funds in the Longford ICBC Capital Account. By manipulating the funds between the Longford ICBC Capital Account and the Longford Fixed Deposit Account, Mary Leong was then able to release part of the fixed deposits and transferred the same to the Longford Current Account for other unauthorized uses.”

43.  It is therefore my conclusion that this ground is not reasonably arguable.

B2.4 The 4^th Sentencing Ground – Excessive punishment

44.  The 4^th Sentencing Ground is that custodial sentence in the circumstances of this case is manifestly excessive and an error in principle.

45.  It was emphasised that imprisonment is a sanction of last resort, and that whenever a reasonable alternative is available, that alternative must be taken.

46.  However, this Court had already taken these trite principles into account when the conclusion of short immediate custodial sentence was arrived at.

47.  There is therefore no reasonable prospect for the defendant to argue successfully on appeal that this Court’s exercise of its discretion is flawed under the established principles.

B2.5 The 5^th Sentencing Ground – The defendant’s personal circumstances

48.  This is an additional ground of appeal introduced by the defendant in her Supplemental Notice of Appeal.

49.  However, this ground was not referred to in the defendant’s submissions at all.

50.  It appears that, by this ground, the defendant is not complaining against the exercise of discretion of this Court, because the matters relied on by the defendant (i.e. the death of her son and the latest medical condition of her husband) only took place after the date of the Sentencing Decision.

51.  As I pointed out at [84] of the Sentencing Decision, this is the second time that she breached the Injunction Order. At the material time, she should have appreciated the serious consequences that such a second breach would bring. She only has herself to blame.

52.  I therefore hold the view that this ground is not reasonably arguable.

B3. Conclusion

53.  By reason of the aforesaid, the defendant cannot meet the minimum requirement for obtaining a stay of execution of the Committal Order or an order to that effect.

54.  The D’s 1^st Stay Summons is therefore dismissed.

C. D’S 2^ND STAY SUMMONS

55.  Under D’s 2^nd Stay Summons, the defendant asks for suspension of the execution of the Committal Order, pending her appeal to the Court of Final Appeal.

56.  At the moment, the defendant’s application to the CFA for leave to appeal is still pending.

57.  On 16 April 2025, the Registrar of the CFA issued a summons to the defendant under rule 7(1) of the Hong Kong Court of Final Appeal Rules (Cap. 484A, Laws of Hong Kong), stating that he is of the opinion that the defendant’s application for leave to appeal to the CFA discloses no reasonable grounds, and requiring her to show cause before the Appeal Committee by written submissions to be filed to the CFA by 14 May 2025 and explain why her application should not be dismissed by the Appeal Committee.

58.  On 14 May 2025, the defendant has filed her written submissions accordingly.

59.  Since 12 September 2025, the parties had been informed by the Registrar of the CFA that a hearing before the Appeal Committee of the CFA would be held on 30 October 2025, at which parties will be heard on 2 out of 14 questions raised by the defendant in her Form B (Application for leave to appeal) as well as 2 other matters raised by the Appeal Committee.

C1. The defendant’s preliminary argument

60.  Paragraph 2 of the order made pursuant to the Sentencing Decision reads:

“The execution of the Committal Order be suspended pending the determination of the Defendant’s appeal against the Judgment dated 26 July 2022, on the condition that the Defendant pays $500,000 into Court by 4pm on 31 May 2024. ”

(“the Suspension Order”)

61.  The defendant’s counsel initially submitted that:

“[O]n the proper reading of §2 of the Sentencing Order, the ‘determination of the defendant’s appeal against the Judgment’ means the completion of the entire appellate process including the determination of an appeal to the CFA (as opposed to simply the CA Liability Appeal)”

62.  However, I have been told by Mr Wong SC at the hearing that the defendant would not pursue this argument any further.

63.  I therefore do not have to say anything more on this submission, apart from stating that it was indeed wise for the defendant to abandon this argument, given it cannot be clearer that, according to the Committal Order, the suspension only lasted until “the determination of the defendant’s appeal against the Judgment dated 26 July 2022”.

C2. The plaintiff’s preliminary argument

64.  It was the plaintiff’s submission that this Court simply has no jurisdiction to grant relief to stay pending the determination of application for leave to appeal to the CFA when the CA has already made a determination on the defendant’s appeal on liability. Reliance has been placed on section 26(1) of the Hong Kong Court of Final Appeal Ordinance (Cap.484, Laws of Hong Kong) (“HKCFAO”) which provides that:

“Where a judgment appealed from requires the appellant to pay money or perform a duty, the Court of Appeal or the Court, as the case may be, shall have power, when granting leave to appeal or subsequently, either to direct that the judgment shall be carried into execution or that the execution shall be suspended pending the appeal.”

65.  The defendant counter-argued that, by virtue of Order 52 rule 7(1) of the Rules of the High Court (Cap.4A, Laws of Hong Kong) (“RHC”), this Court still has power to suspend the Committal Order.

66.  Order 52 rule 7(1) of the RHC reads:

“The Court by whom an order of committal is made may by order direct that the execution of the order of committal shall be suspended for such period or on such terms or conditions as it may specify.”

67.  I do not accept the defendant’s argument. This is because all the proceedings in the High Court in relation to the liability part of the contempt proceedings (i.e. the first instance trial and the appeal therefrom to the Court of Appeal) have been completed. Therefore, I have great doubt as to whether the RHC should still be applicable to the liability part of the proceedings.

68.  On the other hand, I agree with the plaintiff that section 26(1) of the HKCFAO is the only source of power to grant a stay of execution pending an appeal to the CFA. As this sub-section vests such a power in the Court of Appeal and the CFA only, the Court of First Instance does not have such a power. In this regard, it must be borne in mind that the only pending application in relation to the liability part of the contempt proceedings is the defendant’s application for leave to appeal to the CFA.

69.  Even if the wordings of Order 52 rule 7(1) of the RHC allow this Court to impose a further order to suspend the 4-week imprisonment (which I do not agree), I do not think such a power should be exercised in the present circumstances, because that would be equivalent to granting a stay of execution order which is incompatible with the provisions under the HKCFAO.

70.  The defendant submitted that section 26(1) of the HKCFAO is not applicable to the suspension of a committal order made under Order 52 (i.e. penal punishment by imprisonment) because the Committal Order is not an order “requiring the appellant to pay money or perform a duty”. That may be so. However, that would not provide power to this Court which it does not have.

71.  Furthermore, in my view, the conclusion that any application for stay of execution must be made either to the Court of Appeal or the CFA makes much better sense than the conclusion which the defendant would like this Court to reach, because, as aforesaid, when considering any application for stay of execution (even in relation to a short term of imprisonment), the Court has to consider the merits of the appeal. In the present scenario, the Court of Appeal has already dismissed the defendant’s appeal on liability, and the defendant is applying for leave to appeal from that Court of Appeal’s Judgment. Hence, if this Court were to consider the defendant’s stay of execution application, it has to consider whether it is reasonably arguable that the Court of Appeal is wrong. It simply does not make sense for a lower court to comment on the Judgment of the Court of Appeal. The defendant’s argument that this Court is not asked to pronounce whether the Court of Appeal’s Judgment was right or wrong but to make an objective and judicious assessment on her reasonable prospect of success is, with greatest respect, unrealistic and wrong in principle.

72.  A special feature of the present case, as contended by the defendant, is that one of the grounds of appeal (Ground No.2) which is relied on by the defendant in her application for leave to appeal to the CFA was not raised in the Liability Appeal to CA. Insofar as it is her submission that, as a result, there is nothing which renders it inappropriate for this Court to assess the merits of such a new ground, such a submission is rejected. If the present application for stay/suspension should as a matter of principle be made to the Court of Appeal or the CFA, I see no reason why the defendant should be allowed to single out one of the grounds of appeal and on the basis of which make an application to this Court.

73.  The defendant also submitted that her current application was made pursuant to what Kwan VP said in the hearing for the Liability Appeal to CA. The defendant alleged that, at the end of the appeal hearing, after her senior counsel’s submission that in the event the Liability Appeal to CA is dismissed, the Court of Appeal should consider granting an immediate stay of execution of the Committal Order, Kwan VP stated that the defendant should consider making the appropriate application to the Court of First Instance.

74.  The plaintiff disputed that assertion as a matter of fact. The plaintiff stated that what Kwan VP said at the hearing was that:

(1) A stay is not automatic;

(2) The defendant must make the appropriate application, be it before the Court of First Instance or the Court of Appeal, and it would be for the defendant to figure out.[10]

75.  I have listened to the recording of the substantive hearing. It is clear that the version asserted by the plaintiff is correct. Kwan VP did not state that the defendant should make a further application at the Court of First Instance. What is clear is that Her Ladyship asked the defendant to make her decision on the matter.

76.  There is therefore no merit in the defendant’s submissions.

77.  The defendant’s fall-back argument was that even if what the plaintiff stated was right, the Court of Appeal “obviously contemplated the likelihood of this Court (as the court making the committal order) retaining jurisdiction to suspend the said order pending appeal. The Court of Appeal did not immediately consider the usual stay of execution principles in civil proceedings to be applicable to preclude the CFI of the power to suspend”[11].

78.  With respect, I do not think it is right to read too much into what Kwan VP stated at the time. It is apparent that Her Ladyship was simply asking the defendant to consider what to do herself and take out an appropriate application. It should not be taken as if Her Ladyship had expressed any view on the matter.

79.  On this ground alone, the D’s 2^nd Stay Summons should be dismissed.

80.  Without disrespect to counsel, despite their comprehensive arguments on the merits of the defendant’s appeal to the CFA, I am not minded (as I think it is not right) to give my view on the matter. This is something which can only be done by the Court of Appeal and the CFA.

D. P’s ACTIVATION SUMMONS

81.  By P’s Activation Summons, the plaintiff asked for an order that the Committal Order be activated, and if necessary, a warrant for committal against the defendant be issued; alternatively, if the execution of the Committal Order is to be suspended, various conditions be imposed.

82.  Although the Committal Order was suspended only up to the determination of the Liability Appeal to CA, I agree with the plaintiff that, procedurally, an activation order would be required before the defendant is deprived of her liberty. On this matter, attention may be drawn to the case of G v G [2001] 1 HKLRD 580, in which Keith JA opined at [25(ii)] that:

“Deputy Judge Geiser ordered that ‘a warrant of committal be issued’ upon the Respondent’s solicitors filing an affidavit of non-compliance with the conditions which had to be satisfied if the order for the Petitioner's committal to prison was to continue to be suspended. I do not think that such an order can be made. There may be a dispute as to whether the Petitioner has failed to comply with the conditions for the suspension of the order. Moreover, the court may think that even if the conditions for the suspension of the order have not been satisfied, it would not be appropriate for the order of committal to be activated. In my view, the order of committal should not be capable of being activated except by the court, and only then if the court is persuaded that no other course is appropriate. Accordingly, for my part, I would in addition have varied Deputy Judge Geiser’s order by removing the paragraph relating to the issue of a warrant of committal.”

83.   Although his Lordship’s view was at the end of the day not reflected in the ultimate decision of the Court of Appeal in that case, that view was confirmed to be correct (though only as obiter) by the Court of Final Appeal in G v S (2001) 4 HKCFAR 419 (appealed from the aforesaid Court of Appeal’s Judgment in G v G) in which Nazareth NPJ had the following to say at [22]:

“It remains to note that the effect of paragraph 5 seems to be that a warrant of committal would be automatically issued upon the filing of an affidavit of non-compliance. It cannot be right that a judgment debtor in default should be simply deprived of his liberty and subjected to a term of imprisonment in that way. There might by that time be good reason why he should not be imprisoned. To take examples that are entirely conceivable even in the present case, the judgment debtor may have made payment that was not received or otherwise dispute the allegation of non-payment, or his health may make incarceration unreasonable or hazardous. The proper course would be at least for a judge of the Family Court to assess the propriety of and to sanction the warrant. This could be achieved by requiring the warrant to be obtained by judgment summons; but the matter would not end there. Suffice it to say that the considerations in point were touched upon in Mubarak v Mubarak [2001] 1 FLR 698. It would be prudent for those concerned with prescribing and carrying into effect the procedures which might result in deprivation of liberty in the circumstances discussed, to have them carefully examined.”

84.  In BT v CBY (Committal for Contempt) [2020] 3 HKLRD 287, [2020] HKCA 426, similar view has also been expressed by Cheung JA at [8.3]:

“As to the proper procedure to activate a properly obtained suspended committal order, the point has not been fully argued before us. What is clear is that it is not permissible to rely only on a solicitor’s affidavit stating that the condition suspending the committal had been breached and obtain a warrant of committal on that basis : G v G [2001] 1 HKLRD 580 [CA] and on appeal to Court of Final Appeal, G v S (2001) 4 HKCFAR 419. A full discussion on this topic can only be canvassed in an appropriate case when this issue arises. The present case is a fresh application for committal and not an activation of a suspended committal order.”

(emphasis added)

85.  The plaintiff suggests that an application made by summons is required for the purpose of obtaining an activation order. I tend to think that this is the correct approach. The defendant did not suggest otherwise.

86.  Now that this Court has refused to accede to the defendant’s applications for further stay or suspension of the Committal Order, I see no reason why the Court should not make an order in terms of the P’s Activation Summons. There should also be an order that the “bail money” of $500,000 paid into court be paid out to the defendant.

E. ORDER

87.  I therefore order that:

(1) The Committal Order be activated.

(2) The D’s 1^st Stay Summons and the D’s 2^nd Stay Summons be dismissed.

(3) The sum of $500,000 paid into Court by the defendant shall be paid out to her.

F. COSTS

88.  I order that the defendant shall pay the plaintiff’s costs of the D’s 1^st Stay Summons, the D’s 2^nd Stay Summons and the P’s Activation Summons, to be taxed forthwith on indemnity basis if not agreed, with certificate for two counsel (including all costs reserved).