LAM MUI SO AND ANOTHER v. LAM YIN

HCA115/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 115 OF 2008

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J U D G M E N T

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1.  Mr Lam, stand up please.  You have demonstrated a complete lack of seriousness about your obligations to comply with an order made by consent as long ago as 19 September 2008, by which you agreed no later than the expiry of 4 months from the date of that order, that is to say by 19 January 2009, to transfer the land identified in the order to the plaintiff.

2.  That date came and went, and it was not until 11 March this year when you appeared before me again in respect of your apparent breach of that order.  Since then, you have put forward a number of accounts, which have turned out to be either hopelessly optimistic or simply downright wrong.

3.  What you told me had caused me to have some sympathy for your position, and I initially adjourned the matter to 4 June to give you more time, and again to 25 June.  From then I was persuaded by you to adjourn the matter to 2 August.  Finally, I adjourned it to today, making it clear to you that the hearing today was to be for you to show cause why you should not be committed to prison.

4.  You have made absolutely no progress in respect of this matter.  Today, you have produced the visiting card of a firm of solicitors and indicated to me, firstly, that they had instructions to appear for you on this committal application, and when they were telephoned on the court’s behalf by my clerk, they made it clear that they had no such instructions because you had not put them in funds, so that was false. 

5.  Secondly, that they also had instructions to sell the land on your behalf for between $500,000 and $600,000.  When questioned about this, the solicitor concerned, a Mr Wong Wai-yi, says that he was only given general instructions to carry out a land search, and he also mentioned that there was a company interested in buying the land for around that sort of figure, but that there was nothing in writing.

6.  Before you can comply with the order, you are going to have to sell the particular block of land that you own, and this is why I have been giving you these adjournments. 

7.  You say today that the mortgage, which is outstanding, is between $200,000 and $250,000.  The fact is, and I accept this from Miss Phyllis Wong who appears for the plaintiff, she has a letter to this effect, that at some time last year, the outstanding amount was in fact $700,000.  You have not paid the principal or interest since 2004 in respect of that mortgage with the result that any sale for under $700,000 is not going to enable you to comply with the order.

8.  It seems to me that you are playing the court for a fool. 

9.  You simply have not shown yourself to be serious about complying with a consent order that you entered into over an important matter that has been going on for many years; a dispute between you and your relatives, a consent order that we are coming up to the second anniversary of.

10.      An order of committal is an order of last resort.  The whole purpose of committal proceedings is to see to it that orders of the court are complied with.

11.      Having given you every opportunity, it seems to me I am left with no alternative but to make such an order.

12.      I propose to commit you to prison for 42 days, but I am going to suspend that for 56 days on terms that by the expiry of that period of suspension you are to provide the court with a binding contract in writing.  The terms of the order will be that it will be a contract in writing showing a concluded and enforceable agreement under which you are bound to sell the land, Lot 3061 and Lot 3567 in DD No. 93, to a purchaser within 84 days of today.

13.      So you have now got 12 weeks - that is what 84 days is, 12 weeks precisely - to prevent this committal order taking effect.  What you have got to do within 8 weeks, which is 56 days from today, is to provide the court with that contract in writing. 

14.      Under the court order, you have got to have the agreement under which this particular plot of land, which I have identified, the sale should be completed within 84 days of today - that is within 12 weeks of today.  So the crucial thing for you to do to save you from going to prison is that, within 56 days of today, you have got to produce a binding contract showing that the sale will be completed within 84 days of today.

15.      So today you are walking free and it is up to you now to complete the sale under the terms of the order which I have explained to you.

16.      If Miss Phyllis Wong reports to me by end of the 56 days that you have not produced a binding contract, then the bailiff will be notified, you will be arrested and taken to prison and you will serve 42 days.

17.      And let me explain to you that by having served 42 days, if you were to serve 42 days, that would not put an end to your obligation under the order.  The order remains the order that you transfer this land to the plaintiff, and if you do not do so, then it is open to the plaintiff s to start fresh committal proceedings with the same consequences, so if you do not deal with this, you may end up going to prison repeatedly.

(Discussion re costs)

18.      I am going to make a gross assessment and I take the view that the amount claimed is perfectly reasonable, $87,948.