DARYL MARK O'SHAUGHNESSY v. DAVID WILLIAM GUNSON AND ANOTHER

HCA 9218/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 9218 OF 1999

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DECISION ON SENTENCE

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1. In a decision made on 12 April 2000, I found the 1st Defendant to have been in contempt of court. This is the decision on the penalty to be imposed on him.

2. I have invited the 1st Defendant to address me in mitigation and his background is briefly as follows. The 1st Defendant is 46 years old, married with 3 children aged between 11 and 19 years old. His family lives in the U.K. The 1st Defendant was born in New Zealand and received his education there. He is legally qualified to practise in New Zealand, Australia, and Hong Kong and has worked in a law firm in the U.K. Since 1986, the 1st Defendant has been working in Hong Kong, specialising in tax and fund management work.

3. In brief, his personal background shows a man of good character, with apparently a stable family life and gainful employment. This is a matter in his favour in mitigation.

4. On the other hand, as I indicated earlier today, I consider that the 1st Defendant has not shown by his conduct in these proceedings that he is genuinely repentant despite the verbal apologies offered by him in mitigation. Not only were the committal proceedings contested to the end, both yesterday and today the 1st Defendant has repeatedly represented to the court that the funds in question are likely to be available but these indications (like so many before them) never materialised. This is of course not an aggravating factor, but it certainly does not assist the 1st Defendant in his mitigation.

5. A number of options are open to the Court in relation to the form of punishment to be imposed, including a fine, a suspended sentence and immediate imprisonment (with or without a suspension under O.52 r.7(1)).

6. I consider that the contempt committed in this case is a serious one. The 1st Defendant is a qualified solicitor and should be fully aware of the consequence of the breach of an undertaking given to court (which has the force of a court order). Up to today, the undertaking is still not complied with.

7. Further, from the contemporaneous documents filed by the parties herein (especially those referred to by Mr Pirie in his cross-examination of the 1st Defendant), some of which dated back to 1998, there was no reasonable ground for the 1st Defendant to believe on 7 January 2000 that he was in a position to comply with his undertaking of 7 January 2000. This is therefore a case which:-

(a) (at best) the 1st Defendant deliberately took the risk of breaching his undertaking; or

(b) (at worst) the 1st Defendant well knew at the time that he would not be able to comply with his undertaking.

In either case, as I indicated earlier, the contempt should be regarded as a serious one.

8. I bear in mind (and agree with) the observations of Stone J in Abu Dhabi National Tanker Co. Ltd v. Lam Ming Chi [1998] 4 HKC 320 that a delicate balance has to be maintained in the imposition of the penalty for civil contempt between the strong public interest in ensuring that the orders of the Hong Kong Courts will not flouted and the evaluation of the individual circumstances of each case.

9. It certainly does not give me pleasure to have to deal with a person in the position of the 1st Defendant. However, taking everything into consideration, I do not consider that a fine is an appropriate form of punishment, nor is it appropriate to impose a suspended sentence. Mr Pirie has made certain observations regarding the question of punishment. With respect to him, I do not consider the approach he advocated for should be adopted and I therefore ignore them.

10. Having taken everything into account, I find that a sentence of 3 months' imprisonment is appropriate. In view of the numerous opportunities which were given to the 1st Defendant to make payment or transfer of funds since 7 January 2000, especially those given since yesterday. I do not consider it appropriate to suspend the execution of the order under O.52 r.7(1). The 1st Defendant will therefore have to serve this term of imprisonment forthwith.

11. I should mention for the 1st Defendant's benefit (in case it is not already known to him) that he can apply for a discharge under O.52 r.8 on good cause being shown.