LPK v. HSH

FCMP 237/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 237 OF 2011

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D E C I S I O N

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Introduction

1. The Plaintiff in these proceedings seeks an order for committal against the Defendant for contempt for breach of an Order of the Family Court dated 28 July 2011 made in matrimonial proceedings FCMC No.11930 of 2011 (“the divorce suit”) between the Plaintiff (as Petitioner in the divorce suit), the Defendant’s son as 1^st Respondent and the Defendant as 2^nd Respondent in the divorce suit.

2. The Defendant intervened in the divorce suit and was allowed to join in as the 2^nd Respondent for the purpose of the matrimonial ancillary reliefs which involve certain properties in Taiwan where the registered legal ownership belongs to the 1^st Respondent in the divorce suit, that is, the son of the Defendant herein.

3. The Defendant commenced legal proceedings in the Taiwan court (“the Taiwan Civil Action”) claiming ownership of those Taiwan properties which formed the bulk of the Plaintiff’s ancillary reliefs claim against his son in the divorce suit in Hong Kong. By an Order of the Family Court in the divorce suit dated 28 July 2011 (“the Restraint Order”), the 1^st and 2^nd Respondents therein are restrained from taking further steps in the Taiwan Civil Action.  The terms of the Restraint Order, in so far as the alleged breach is concerned, are as follows :-

“1. The 1^st Respondent and the 2^nd Respondent whether by themselves, their servants or agents or otherwise be restrained from charging, dealing, transferring or otherwise disposing of the following landed properties until the Petitioner’s application for ancillary relief or further Order, namely :

(i) ……………….(“Hong Kong Property”);

(ii) 14^th Floor, ……………. Taiwan;

(iii) 1 of 14^th Floor, ……………..Taiwan;

(iv) A car parking space at LG2 of ……….. Taiwan

((ii) to (iv) above collectively referred as “Taiwan Properties”).

2.  The 1^st Respondent and the 2^nd Respondent whether by themselves, their servants or agents or otherwise be restrained until further Order from taking further steps in the Civil Action in Taiwan in respect of the Taiwan Properties, and/or any other action affecting the ownership or possession of the Taiwan Properties, including any appeal against the restraint order granted in Taiwan on 17^th November 2010 and/or the decision of the Taiwan Court refusing an application for transfer of ownership of the Taiwan Properties.”  

4.  Pursuant to Order 52 rule 2(2) of the Rules of the District Court (“RDC”), the Plaintiff filed her Statement dated 30 September 2011 (“the Plaintiff’s Statement”) setting out the grounds of application upon which the committal was sought against the Defendant. Leave was granted ex parte on notice on 3 October 2011 for commencement of these proceedings.  The Originating Summons was then issued on 7 October 2011 and scheduled for full argument before me on 5 March 2012 with 2 hours reserved.

The 2 Summonses

5. Following the filing and exchange of Affirmations of the parties and of the Taiwan lawyer Miss Leung for the Defendant, the Defendant’s solicitors issued a Summons on 28 February 2012 seeking leave for the filing of an Affirmation by the handling solicitor in Hong Kong Mr. Chiu who deposed to the fact that he had contacted the Defendant and the Defendant’s Taiwan lawyer notifying both of them the granting of the Restraint Order.  On the other hand, the Plaintiff’s solicitors also issued a Summons on 2 March 2012 seeking leave for adducing Affidavit evidence by one Mr. Chang, a Taiwan lawyer, on question of Taiwanese law.  Both Summonses were listed for hearing on the same date on 5 March 2012 but prior to the substantive hearing.

6. At the hearing, Senior Counsel Mr. McCoy opposed the Plaintiff’s Summons.  Counsel for the Plaintiff Miss Remedios decided not to proceed with their Summons for the sake of saving time and the Plaintiff’s Summons was then withdrawn. Further, Miss Remedios for the same reason, confirmed that she would not stand on the way to the Defendant’s Summons and leave was granted for the solicitor Mr. Chiu’s affirmation to be filed.

Order 52 rule 6(4)

7. Before the hearing, I obtained confirmation from Mr McCoy that no oral evidence would be given by the Defendant who might express a wish to give evidence which is permissible under the rules. 

The alleged breach

8. As stated in the Originating Summons, the Plaintiff relied upon her 8^th Affirmation filed in the divorce suit, the Plaintiff’s Statement filed under Order 52 r 2(2) and her supporting Affirmation filed in these proceedings as evidence seeking the committal order against the Defendant. 

9. In the Plaintiff’s Statement, it sets out the Plaintiff on or about 22 September 2011, having caused a search of the Taiwan Taipei District Court website on the Taiwan Civil Action, discovered that there was a hearing scheduled on 3 October 2011 at 2:40 p.m.  It is the Plaintiff’s case that the Defendant must have caused the scheduling of the Taiwan Civil Action for hearing and thus is a breach of the Restraint Order.

10. Following such discovery, the Plaintiff through her lawyers wrote to the Defendant’s Solicitors the following day (i.e. 23 September 2011) and also on the 26 September 2011 making enquiries and requesting a joint application to be made to the Taiwan Court to stay the Taiwan Civil Action.  No constructive response was received from the Defendant’s Solicitors.

The defence

11. Mr McCoy, Senior Counsel leading Counsel Miss Pauline Leung, raised a number of contentions at the hearing which I may summarise as follows  :

(a)  The Statement dated 30 September 2011 upon which leave to commit the Defendant was sought is an indictment constituting the ‘Charge’ the contents of which the Plaintiff must prove to the requisite criminal standard of ‘beyond reasonable doubt’;

(b)The ‘Charge’, so to speak, set out matters happened as at the date of the Statement (i.e. 30 September 2011).  The Plaintiff is confined to her pleaded case in the Statement and cannot go outside the circumference and rely upon matters happened ‘before or after’ the 30 September 2011.  Furthermore, the Plaintiff chose not to seek leave to amend the Statement prior to this substantive hearing;

(c)  The Restraint Order was not attached with a penal notice when it was granted on 28 July 2011 nor was it so endorsed as at the date of the ‘Charge’, namely, the 30 September 2011.  It was only on the 3 October 2011 that the Plaintiff obtained leave of the Family Court to attach the penal notice to the Restraint Order.  A penal notice is prospective only.  Accordingly, the Plaintiff has had no case for seeking committal since there was no penal notice attached to the Restraint Order as at the date of the ‘Charge’ (i.e. 30 September 2011).  Any attempt to make a penal notice retrospective cannot be done as a matter of law;

(d)There had never been any personal service of the Restraint Order on the Defendant at any time after it was granted;

(e)  The Plaintiff possessed no direct evidence as to what had actually happened in the Taiwan Civil Action as she had never attended any of the Taiwan court hearings. She only had reasons to believe what had happened and thus in effect is relying upon hearsay evidence.  This is fatal to the criteria of proving the “Charge’ beyond reasonable doubt;

(f)  The terms of the Restraint Order are to prohibit the Defendant and/or his servants and agents from ‘advancing’ the Taiwan Civil Action.  The Defendant is not prohibited from ‘maintaining’ the Taiwan Civil Action;

(g)  The principal and agency relationship between the Defendant and his Taiwan lawyer had been ended by the Defendant’s express instructions not to proceed with the Taiwan Civil Action given around August 2011.  Thus, the Taiwan lawyer’s attendance at the Taiwan court at the hearings of 3 October 2011 and 17 November 2011 was acting without authority or instructions of the Defendant.

Discussion

12. I will first deal with the technicalities on service of the Restraint Order and the issue of penal notice before dealing with those other issues raised.

13. To start with, I will summarise the undisputed facts as follows :-

(a)  Following full argument by Counsel for the parties in the divorce suit, the Restraint Order was granted on 28 July 2011.  The Order was sealed and perfected on 18 August 2011 by the Plaintiff’s Solicitors, Messrs. Iu, Lai & Li (“ILL”) (who are also the solicitors acting for the Petitioner wife in the divorce suit) without a penal notice attached;

(b)The Restraint Order (without penal notice attached) was then served on the 1^st and 2^nd Respondent’s solicitors on record in the divorce suit; namely, Messrs. Li, Chow & Co (“LCC”) and Messrs. Chiu, Szeto & Cheng, Solicitors (“CSC”) respectively.  CSC are also the solicitors acting for the Defendant in the present proceedings;

(c)  ILL obtained leave in the divorce suit to apply for an order for committal against the Defendant (i.e. 2^nd Respondent in the divorce suit) on 3 October 2011.  At the same hearing, leave was also obtained from the Family Court for :

(i)  penal notice be endorsed on the Order granted at that hearing directing the 1^st and 2^nd Respondents in the divorce suit to forthwith comply with the Restraint Order and also be endorsed on the Restraint Order dated 28 July 2011;

(ii)   personal service of the Plaintiff’s Statement and the 8^th Affirmation of the Petitioner (i.e. the Plaintiff herein) and the exhibits thereto on the Defendant be dispensed with save and except service of the same be effected upon CSC;

(iii)  personal service of the Originating Summons herein and the notice of hearing for committal order and the supporting affirmation on the Defendant be dispensed with save and except service of the same be effected upon CSC.  

Service of the Restraint Order and Penal Notice  

14. The pre-requisites for enforcement of an Order by way of an order of committal are set out in Order 45 r 7 of the Rules of the District Court (“RDC”). 

15. Order 45 r 7 provides :-

“(2) Subject to Order 24, rule 16(3), Order 26, rule 6(3) and paragraphs (6) and (7) of this rule, an order shall not be enforced under rule 5 unless –

(a) a copy of the order has been served personally on the person required to do or abstain from doing the act in question, and

(b) in the case of an order requiring a person to do an act, the copy has been so served before the expiration of the time within which he was required to do the act.

(3) …………………….

(4) There must be indorsed on the copy of an order served under this rule a notice informing the person on whom the copy is served –

(a) in the case of service under paragraph (2) that if he neglects to obey the order within the time specified therein, or, if the order to abstain from doing an act, that if he disobeys the order, he is liable to process of execution to compel him to obey it, and …….

(5) ………………..

(6) An order requiring a person to abstain from doing an act may be enforced under rule 5 notwithstanding that service of a copy of the order has not been effected in accordance with this rule if the Court is satisfied that, pending such service, the person against whom or against whose property is sought to enforce the order has had notice thereof either –

(a) by being present when the order was made, or

(b) by being notified of the terms of the order, whether by telephone, telegram or otherwise.

(7)  Without prejudice to its powers under Order 65, rule 4, the Court may dispense with service of a copy of an order under this rule if it thinks it just to do so.”

16.  Order 45 r 5 provides –

“(1) Where -

(a)a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or, as the case may be, within that time as extended or abridged under Order 3, rule 5, or

(b)a person disobeys a judgment or order requiring him to abstain from doing an act,

then, subject to the provisions of these rules, the judgment or order may be enforced by one or more of the following means, that is to say –

(i)…………….

(ii)……………

  (iii) an order of committal against that person or, where that  person is a body corporate, against any such officer.”

17.  The Order dated 3 October 2011 granted by the Family Court ex parte on notice giving leave to endorse penal notice on the order of that day and the Restraint Order was not challenged by Mr. McCoy.  This is perhaps right as any such challenge would have to be made in the divorce suit and not in the present proceedings. There is, however, no application  taken out in these proceedings by the Defendant to set aside these committal proceedings on the ground that the leave granted on 3 October 2011 was irregularly obtained by virtue of any defect in the Plaintiff’s Statement (see The Incorporated Owners of United Building –v- Ng Yuk Ming and others, HCA No.4157 of 1993).

18.  The issues on penal notice and service raised by Mr. McCoy which I have set out under paragraphs 11(c) and (d) of this Decision, as I see it, rest principally that the penal notice endorsed retrospectively (even with leave of the Family Court on 3 October 2011) could not make good any deficiency that had existed as at the date of the ‘Charge’.  The deficiency being that the Restraint Order, of which breach was alleged and enforcement by order of committal is now being sought, did not contain a penal notice as required by the RDC.  Thus the Plaintiff has had no case to seek a committal order on the date of the ‘Charge’, namely, 30 September 2011.  Furthermore, there had never been any personal service of the Restraint Order on the Defendant.

19.  Miss Remedios for the Plaintiff referred me to the case of AXA China Region Insurance Co Ltd & Anor –v- Li Yu Ping Ellen [2002] 3 HKC on the powers of the court to dispense with service of injunction orders retrospectively.  I noted that Mr. McCoy represented the appellant in the AXA case on the first day of the appeal hearing.  On appeal, it was held that the Court had the power under Order 45 r 7(7), where the circumstances for the application of Order 45 r 7(6) did not exist and where there has been a failure to serve an order which required a person to do an act, to dispense with service and the court may do so retrospectively.  Further, it follows that if the power to dispense with service of an order was properly exercised, the requirement to endorse a copy of the order with a penal notice under Order 45 r 7(4) fell away, even though there was no express power to dispense with a penal notice within the rules of the Court.

20.  Mr. McCoy sought to distinguish the AXA case from the facts of the present case as there were 2 orders in the AXA case where the first order had been properly endorsed with a penal notice and duly served personally on the Defendant in that case. It was only the second order, which varied the first order and extended the time for compliance of the first order, had not been endorsed with a penal notice and also had not been personally served on the contemnor in that case except delivery by hand to her solicitors on record.

21.  In the present case, there is no dispute that the terms of the Restraint Order are prohibitory or negative in nature.  Thus when it comes to consider the whether the Order could be enforced in the absence of personal service, it may first invoke consideration of the court’s discretion under Order 45 r 7(6) before having had to consider the wider dispensation powers under Order 45 r 7(7).  On the facts of the present case, if it could be proved by evidence to the criminal standard of beyond reasonable doubt that the Defendant has had been notified of the terms of the Restraint Order, there is then no question of Order 45 r 7(7) discretion on dispensation of service. The matter would fall squarely within the exception under Order 45 r (7)(6). There will be no question of applicability or non-applicability of the AXA case which is a case primarily on the court’s discretionary powers under Order 45 r 7(7) dispensing with the service of a mandatory order.

22.  In the case of Chou Yi Feng –v- Chou Yi Chen and Ors (HCA No.4393 of 2001), Hon Chung J considered the English and Hong Kong cases on the court’s discretionary powers to dispense with service of orders under Order 45 r 7(6) and 7(7).  At paragraph 28 of the Judgment, the learned Judge said :-

“28. The following propositions can be distilled from the above observations and/or conclusions of the Hong Kong court of appeal (in Excel Noble) and the English court of appeal (in Davy International, Turner and Hill Samuel & Co Ltd) :-

(a) Ord 45 r 7(6) applies to prohibitory orders and the discretion thereunder is only available when the conditions prescribed by it are met;

(b) Ord 45 r 7(7) however confers an unfettered discretionary power and can be exercised whenever it is just to do so;

(c)   the old authorities before the changes to the Rules (made in England in the mid-1960’s) can no longer be relied upon to fetter the court’s discretion under Ord 45 r 7(7).”

23.  In our case, the Defendant by his Affirmation dated 10 October 2011 deposed at paragraph 3 thereof to the fact that back in August 2011, which was soon after the Restraint Order was granted, he had informed his Taiwan lawyer the Restraint Order against him, expressly stating any non-compliance of the Restraint Order or taking of further steps in the Taiwan Civil Action whether by him or the Taiwan lawyer might amount to breach and contempt of Court in Hong Kong.  This is supported by the affirmation evidence of the Defendant’s lawyer in Hong Kong Mr. Chiu, who deposed to the fact that he had advised the Defendant immediately after the Restraint Order was granted to inform his Taiwan lawyer about the Restraint Order.  Mr. Chiu also confirmed he had sent a copy of the Restraint Order to the Taiwan lawyer on 4 October 2011.  This was soon after the hearing of the Taiwan Civil Action on 3 October 2011.  Enquiry was also made from the Taiwan lawyer on the scheduling of the hearing of 3 October 2011 in the Taiwan court. I was told at the hearing that no letter of reply was received from the Taiwan lawyer.

24.  The question thus comes along is, whether from the evidence of the Defendant and his lawyer in Hong Kong Mr Chiu, it is suffice for this Court to be satisfied beyond reasonable doubt that the Defendant had been notified of the terms of the Restraint Order and thus the exception as to the requirement of personal service under Order 45 r 7 (6)(b) applies or would have applied. My view is that the answer must be in the affirmative. First of all, no issue on absence of knowledge of the terms of the Restraint Order had ever been taken at any time by the Defendant.  The Defence case has all along been to the contrary.  Secondly, the Defendant had at one stage instructed his lawyer to lodge an appeal against the Restraint Order.  Without knowing the terms of the Restraint Order, the Defendant would not have given instructions to lodge the appeal.  The Summons for leave to appeal was issued on 10 August 2011 (i.e. within 2 weeks of the Restraint Order) which was subsequently withdrawn.  Thus, I am satisfied beyond reasonable doubt that the Defendant must be notified of the terms of the Restraint Order.  

25.  Having come to such conclusion on the Defendant’s notice of the terms of Restraint Order, it follows that the Restraint Order can be enforced by virtue of Order 45 r 7(6)(b) of the RDC notwithstanding that personal service on the Defendant had not been effected.  With such a finding, whether or not the Restraint Order was endorsed with a penal notice becomes academic and falls away in consequence (see para 36 of the AXA case, supra).  Thus, the contention as to lack of personal service of the Restraint Order and the absence of a penal notice both fails.

26.  However, there still remain the issue as to whether a penal notice is prospective only.  It has been contended that the Plaintiff has had no case for committal since the penal notice was attached to the Restraint Order retrospectively on 3 October 2011.  On the date of the ‘Charge’, namely, 30 September 2011, there was simply no penal notice in existence. 

27.  I do not accept this argument.  Where the order alleged to have been breached is not endorsed with a penal notice, and the alleged contemnor is not otherwise aware of the consequences of a breach of order, the court can still make a finding of contempt and to make appropriate orders in enforcement, and to award indemnity costs, but it should not impose any punishment.  A distinction must be made between an ability to make a finding of contempt, and the ability to punish so as to enforce the order, and it is only in the latter case that Order 45 applies requiring a penal notice (see 52/2/9 at page 957 of the Hong Kong Civil Procedure 2012).

28.  In our case, the Defendant had been advised by his lawyer on the Restraint Order after it was granted, which advice must have included the consequences of breach, it goes far more than the situation where the alleged contemnor was not aware of the consequences of breach.

29.29.  Therefore, following a proper exercise of the court’s discretion on dispensation of personal service of injunction orders whether under Order 45 r 7(6) or 7(7), also the requirement of penal notice having fallen away in consequence, the mere absence of a penal notice would not ‘debar’ a party from issuing committal proceedings on enforcement although punishment could not be imposed. 

‘Statement’ / ‘Indictment’ and Standard of Proof  

30.  It is common ground that the Plaintiff’s Statement dated 30 September 2011 is to be treated as if an ‘indictment’ in criminal cases.  The Plaintiff bears the burden of proving the matters stated therein at the criminal standard of “beyond reasonable doubt”.

31.  The issue raised by Mr. McCoy, in respect of the Plaintiff’s Statement filed pursuant to Order 52 r 2(2), focuses on the scope or spectrum within which matters which the Plaintiff had pleaded in it upon which she may rely on for seeking the committal order. 

32.  The importance of the statement under Order 52 r 2(2) has been discussed in the Hong Kong Civil Procedure 2012, para 52/2/6, at page 954 as follows :-

“The statement in support of the application is to be treated in a similar manner as an indictment in criminal proceedings having regard to the penal nature of the sanctions for contempt. At the substantial hearing the applicant cannot (except with the leave of the court) rely on any grounds not stated in the originating summons, being grounds in respect of which leave for making the application for an order of committal has been granted. The statement should state all the factual elements which, if proved, are sufficient to establish the contempt, but not the evidence in support. Great care therefore must be exercised in drafting the statement……”

33.  The learned editors went on to say, at para 52/2/6, at page 954 :

“The following should be included (r.2(2)) :

(a)the name and the description of the applicant;

(b)the name, the description and the address of the person sought to be committed…..

(c) the relief sought, i.e. an order for committal and/or fine (and/or sequestration if appropriate) and costs;

(d)particulars of the order or the undertaking alleged to have been breached;

(e) in case of civil contempt, the personal service thereof on the alleged contemnor (see para 52/2/8) (if personal service is unnecessary for some reason, the statement should state why : Chou Yi Feng –v- Chou Yi Chen., unrep. HCA No.4393 of 2001, November 23, 2002, [2002] HKEC 1437, Chung J., para 44);

(f) how and in what manner is it alleged the order or undertaking has been breached, with sufficient particularity to enable the alleged contemnor to defend himself, ……….The test for the sufficiency of the statement is : ‘Does it give the person alleged to be in contempt enough information to enable him to meet the charge ?’ (Chiltern D.C. –v- Keane [1985] 1 WLR 619 CA at 622, per Sir John Donaldson M.R.,……..;

(g)………………………”

34.  In the Plaintiff’s Statement, the background of the case and the grounds upon which the committal was sought are set out under paragraphs 4 to 7. The injunctive orders granted in the divorce suit are set out in paragraphs 8 to 10.  The grounds of application for committal are set out in paragraphs 11 to 15. The reliefs sought are set out in paragraph 16.

35.  Since no application has been made to set aside these proceedings on the basis that it was commenced upon leave which should not have been granted, the issues thus require consideration falls upon those raised by Mr. McCoy, namely, whether the Plaintiff is confined to matters that have been pleaded in the Plaintiff’s Statement for seeking the committal order. 

36.  However, in my view, if there exists any fundamental flaw in the proceedings, it has to be addressed or resolved before any other issues are to be considered.  This is important for otherwise the entire proceedings may be irregular and orders made therein would be improperly obtained.  The fact that such fundamental flaw not being raised as an issue or preliminary issue or having been noticed by the parties in the litigation would not prevent the Court’s intervention. This is especially important if the proceedings involve the liberty of the subject such as the present proceedings.

The Plaintiff’s Statement

37.  Upon reading the Plaintiff’s Statement as a whole, there is no reference to personal service of the Restraint Order on the Defendant or any reason why it was not so served; say, for example, service has been dispensed with or substituted service has been ordered.  The only reference to service of the Restraint Order is at paragraph 10(4) of the Statement that it was served on the Defendant’s Solicitors. This is not in compliance with the rules  (see para 52/2/6 of the Hong Kong Civil Procedure 2012 and the case of Chou Yi Feng –v- Chou Yi Chen & others, supra, at para 44).

38.  The fact that the Plaintiff’s solicitors sought to ‘remedy’ the situation by obtaining directions in the Family Court on 3 October 2011 dispensing with personal service of documents, including the Plaintiff’s Statement and other documents, on the Defendant save and except on his solicitors CSC would not, or simply could not, remove the strict requirement on details of service to be included in the contents of the Plaintiff’s Statement.  Any defect or deficiency in the contents of the Statement under Order 52 r 2(2) could only be cured by amendment with leave of the Court although the more appropriate way is to set aside the leave granted upon the Statement for procedural irregularity leaving the applicant free to make a fresh application for leave using a compliant statement  (see the case of The Incorporated Owners of United Building –v- Ng Yuk Ming & others, HCA 4157 of 1993 and para 52/2/10 of the Hong Kong Civil Procedure 2012 at page 957).

39.  In the case of Re M  [1989] 2 HKLR 117, CA where Silke VP at page 122 said :

“The technicalities of compliance with the Rules are there to protect the individual and that protection is, in these cases, a matter of considerable importance.”

40.  For the reason aforesaid, I am of the view that the absence of reference to the personal service or any valid reasons why such reference is not required constitute a fundamental flaw in the Plaintiff’s Statement which renders it defective.  This follows that leave granted upon such Statement must be set aside.  The present Originating Summons issued upon such leave should accordingly be dismissed. 

Contentions raised by Mr. McCoy

41.  Although the Plaintiff’s Statement being found defective, I am prepared to deal with those other contentions raised by Mr. McCoy as if the Statement had complied with the rules.

42.  On the first contention that the Plaintiff could not rely upon matters occurred before or after the date of the Statement, I agree. The importance of the Order 52 r 2(2) statement, the requirement on strict compliance of full details and sufficient particulars to be given in the contents of such statement and also the restriction on reliance upon grounds not stated in the originating summons (being grounds where leave to apply for committal has been granted) are all supportive of Mr. McCoy’s contention.  Had the applicant in committal proceedings been allowed to rely upon matters not specifically pleaded in the statement filed under Order 52 r 2(2), the alleged contemnor may not be able to know to what extent the applicant is relying upon as grounds to establish the contempt. 

43.  Miss Remedios in her submission sought to refer to the findings of ‘concerted effort’ in the Reasons for Decision of the Family Court when granting the Restraint Order.  This was apparently done with an aim to support the Plaintiff’s case that the Defendant “must have caused” the Taiwan Civil Action to be scheduled for hearing set out in paragraph 12 of the Plaintiff’s Statement.  Mr. McCoy in response submitted that any inference has to be the only irresistible inference found on primary facts from admissible materials.  It is also contended that the standard of proof for the present committal proceedings is the criminal standard which differs from the civil standard of proof for the divorce proceedings where the said findings of ‘concerted effort’ were made.

44. I agree with Mr. McCoy. The findings of ‘concerted effort’ came about after trial and assessment of evidence based on the civil standard of proof.  The standard of proof in these committal proceedings being different in that the higher criminal standard of proof of beyond reasonable doubt applies.  It works one way but not the other, that is to say, a finding upon assessment of evidence by the criminal standard could well be accepted as proven evidence in a civil case, but not vice versa.  A day-to-day example would be a finding of guilt on a criminal charge of ‘careless driving’ is proven evidence of ‘negligence’ in a civil claim for damages, again, not vice versa.

45.  The other contention is that the evidence possessed by the Plaintiff being hearsay and is therefore fatal to the criteria of proving the ‘Charge” beyond reasonable doubt. With respect, I do not agree with Mr. McCoy on this contention. A piece of evidence being hearsay in nature, provided that it is admissible under the rules or otherwise, may still be relied upon to prove an issue though it is likely to be an uphill battle when the standard of proof required of is the higher standard of beyond reasonable doubt. 

46.  For civil contempt, hearsay evidence is admissible, either under Order 41 r 5(2) if the contempt proceedings are interlocutory or under Section 47 of the Evidence Ordinance, Cap.8 if they are final (see para 52/6/3 of the Hong Kong Civil Procedure 2012 at page 961).

47.  The other contention that the Restraint Order is simply prohibiting ‘advancing’ the Taiwan Civil Action with no constraint on ‘maintaining’ the Action cannot be decided without first to understand the relevant civil procedure in Taiwan.  The terms ‘advancing’ and ‘maintaining’ could have different meanings within different context. In the absence of a hearing with independent experts on Taiwanese law testifying and subject to cross examination, it is in no way fair or proper to determine whether the present scenario is the result of the Defendant  ‘advancing’ or ‘maintaining’ the Taiwan Civil Action. In my view, in the absence of independent expert evidence on Taiwanese law, it is not correct for this Court applying the local law to consider the result achieved in the Taiwan Civil Action and then to find and determine whether the Defendant was ‘advancing’ or ‘maintaining’ the Taiwan Civil Action.  I have not been assisted by Mr. McCoy as to how I could do so. Thus I make no finding on this contention although I am prepared to take judicial notice of the legal system in Taiwan being inquisitorial which Mr. McCoy had invited me so to do.

48. The contention of principal and agency will be dealt with in the latter part of this Decision under the heading “Hearings in Taiwan Court”.

Duty to prove contempt

49.  As stated in paragraph 30 of this Judgment, the Plaintiff bears the burden of proof to the criminal standard.  There is no burden on the Defendant to prove anything (see Concorde Construction Co. Ltd –v- Colgan Co. Ltd (No.2) [1984]  HKC 253 at 257 per Rhind J).  Having said that, it is pertinent to have a general review on the law.  To succeed, the Plaintiff must prove both the act claimed to constitute contempt and the alleged contemnor’s requisite of mind.

50. In civil contempt, it is not necessary to prove that the alleged contemnor’s conduct was contumacious (i.e. that he directly intended to disobey the order), it is sufficient to prove (a)  that he knew the facts which are said to make his act or commission a contempt and (b) that such act or omission was not accidental (see Stancomb –v- Trowbridge UDC [1910] 2 Ch.190 at 194 per Warrington J) and the House of Lords decision of Heatons Transport (St Helens) Ltd –v- TGWU [1973] AC 15.

51.  The evidence before this Court for proving the alleged contempt comes from the Plaintiff’s 1^st and 2^nd Affirmations and the exhibits attached thereto.  Attached to the 2^nd Affirmation is an exhibit marked “LPK-7” which contains a 2-page Note (at pages 254 to 255 of the Trial Bundle) prepared by the Plaintiff’s Taiwan lawyer Miss Yang.  Mr. McCoy at the hearing and also in paragraph 21 of his skeleton submissions sets out four grounds of objection to such Note being admissible and/or no weight should be attached to it. 

52.  Apart from the Note of Miss Yang, there remains only the affirmation evidence of the Plaintiff herself.  As Mr. McCoy rightly pointed out, the Plaintiff had not presented herself at the hearing in the Taiwan court on 3 October 2011.  Therefore, she would not be in any position to give direct evidence as to what had happened at those hearings.  She largely relied upon matters which she allegedly had reasons to believe to have happened which are generally hearsay.

53.  The Plaintiff’s complaint of the breach constituting the alleged contempt is that the Defendant “must have caused” the scheduling of the hearing in the Taiwan Civil Action on 3 October 2011. Pausing here, the term “must have caused” itself already lacked clarity and precision as to when and how the Defendant had caused it.  The test laid down in Chiltern D.C. –v- Keane, supra, has not been passed.

54. Counsel Miss Remedios for the Plaintiff attempted to rely upon the court findings of “concerted effort” in the Judgments in the divorce suit to discharge the burden of proving the Defendant having, or must have, caused the scheduling of the said hearings.  Leaving aside my view as to court findings reached upon different standard of proof stated in paragraph 44 of this Decision, and also taking the Plaintiff’s evidence to the highest, I still believe the Plaintiff is not able to prove beyond reasonable doubt that it was the Defendant or his Taiwan lawyer acting upon his instructions to schedule the said hearings.  There is simply no evidence to support the alleged conduct except by way of drawing inference from surrounding circumstances and the said court findings of the Family Court. 

55.  I have not been assisted by Counsel Miss Remedios as to how and on what circumstances the Court should draw inference from court findings reached upon assessment of evidence based on the civil standard of proof “on balance of probabilities” so much so that they could be relied upon as evidence to discharge the burden of proof at the criminal standard of “beyond reasonable doubt”.  I am now aware of any of those circumstances or authorities. 

56.  As regards the Note of Miss Yang produced by the Plaintiff, I agree with Mr. McCoy it should not be admissible as evidence. First, it was not by way of affirmation or made under oath.  Secondly, there is no Statement of Truth.  Thirdly, it is not even signed or dated.  Fourthly, it is unclear whether she is providing evidence as an expert; and if so, directions on expert evidence ought to have been sought from the Court beforehand.

57.  The Plaintiff bears the burden of proof.  On the disclosed evidence, it is not sufficient for this Court to find the scheduling of the  hearing of 3 October 2011 was caused by the Defendant or his Taiwan lawyer upon instructions.  This is particularly so when there are affirmation evidence from the Defendant and the Taiwan lawyer which the Plaintiff had not been able to rebut.  There is also no expert evidence on Taiwanese law adduced to contradict the Defendant’s Taiwan lawyer’s evidence.  All these, in addition to my finding of the lack of particulars and clarity as to when and how the scheduling of court hearing came about, even without having to consider the procedural defect on the statement filed under Order 52 r 2(2) which I set out in paragraphs 37 to 40 of this Decision, lead to my conclusion that the Plaintiff fails in proving the alleged breach for an order of committal against the Defendant.

Hearings in Taiwan Court

58.  There are 2 hearings, namely, on 3 October and 17 November 2011.  It is undisputed that the Defendant’s Taiwan lawyer Miss Leung attended both hearings.  Although the Plaintiff’s Statement referred only to the scheduling of the hearing on 3 October 2011 which formed the subject of the alleged breach, Miss Remedios also made reference to the hearing on 17 November 2011 in her oral submission of the Plaintiff’s case. Since I have decided the Plaintiff could not rely upon matters not stated in the Plaintiff’s Statement, I have not specifically dealt with the scheduling of the 17 November 2011 hearing in the earlier part of this Decision.  Had I been required to do so, my findings would be the same for the 3 October 2011 hearing.

59.  Miss Leung filed 2 Affirmations explaining why she attended  the two hearings on 3 October and 17 November 2011. 

60.  In paragraph 5 of her 1^st Affirmation, she said soon after the Restraint Order was granted, the Defendant informed her of the same and did not give her any instructions in relation to the Taiwan Civil Action.  In paragraph 8 of her 1^st Affirmation, she said on 8 September 2011 she received from the Civil Court of Taipei District Court a notice that the Taiwan Civil Action was scheduled for hearing on 3 October 2011. As a practising lawyer and according to the Code of Ethics, she has to attend the hearing even though no instructions were given by the Defendant.  Further, Miss Leung at paragraph 10 of her 1^st Affirmation, she referred to Sub-Article 1 and 2 of Article 191 of the Taiwan Code of Civil Procedure, in that if the parties fail to appear on two occasions, either by himself or by his advocates, the proceedings will be deemed dismissed.  In order to protect the interest of the Defendant and to avoid the Taiwan Civil Action being deemed dismissed, she had the duty to attend the hearing on 3 October 2011. It later transpired that at the hearing on 3 October 2011, there was an indication from the Taiwan Court that the Plaintiff has the right to join in the Action.

61.  In the 2^nd Affirmation, Miss Leung said she received a Notice from the Civil Court of the Taipei District Court on 5 November 2011 with a hearing scheduled for the Taiwan Civil Action on 17 November 2011.  Again, this hearing was arranged by the Taiwan court without any contact with her beforehand about the scheduling or had she received any instructions from the Defendant to fix this date.  Miss Leung attended this hearing also for the same reasons as she did for the hearing on 3 October 2011.

62.  In paragraph 3 of the 2^nd Affirmation, Miss Leung said she informed the Taiwan court at the hearing on 17 November 2011 due to the Restraint Order, the Defendant (who is the Plaintiff in the Taiwan Civil Action) could not participate in the Action including personal attendance in the Taiwan court.

63.  Miss Leung accepts that her attendance at the two hearings were without any instructions from the Defendant on the Taiwan Civil Action.  Thus, the question which follows would be whether Miss Leung, when she attended the Taiwan court hearings on 3 October and 17 November 2011, was acting as the professional agent of the Defendant ?  The terms of the Restraint Order cover not only the Defendant himself but also his servants and/or agents acting on his behalf.

64.  The Defendant being a Taiwan citizen engaging the legal services of a Taiwan lawyer, I believe in the normal course of event the contract of retainer between the Defendant and his lawyer Miss Leung would be governed by Taiwanese law and may, probably same as in Hong Kong, subject to legal professional conduct and ethics.  As regards the contention raised by Mr. McCoy that the principal and agent relationship between the Defendant and his Taiwan lawyer had ended, it has to be resolved in the context of Taiwanese law of principal and agent; in particular, the area of law covering solicitor and clients under the Taiwan law spectrum.  Unfortunately, I have not been assisted by Senior Counsel or Counsel on this topic.  In the absence of independent expert evidence on Taiwanese law, I am not in any position to consider whether such contention by Mr. McCoy stands or fails by simply applying the law of principal and agent in Hong Kong.  There is also no basis for me to take judicial notice that such area of the law in Taiwan is the same as in Hong Kong.

Conclusion

65.  Based on my reasoning under paragraph 40 of this Decision, I set aside the leave granted on 3 October 2011 and also the Originating Summons issued herein for committal be dismissed. 

66.  Had I been wrong in setting aside the leave at this stage or in the absence of any application to set aside leave or the Originating Summons by the Defendant, I would also find the Plaintiff’s application for committal fails for the reasons set out in paragraphs 49 to 57 of this Decision.

67.  As the Plaintiff’s case fails primarily on an issue not pursued by the Defendant, it is reasonable and fair not to make any costs order save and except the Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.

Orders

68.  I now make the following Orders :-

(1)The Order dated 3 October 2011 granting leave to issue committal proceedings be set aside;

(2)The Originating Summons dated 7 October 2011 be dismissed;

(3) There be no Order as to costs including all costs reserved (if any) save and except the Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.

(4) There be Certificate for Counsel.

69.  And lastly, I wish to thank Senior Counsel and Counsels for their assistance.