SINO WOOD INVESTMENT LTD v. WONG KAM YIN

CACV130/2004

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 130 OF 2004

(ON APPEAL FROM HCA NO. 307 OF 2002)

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J U D G M E N T

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Hon Rogers VP:

1.          This application for leave to appeal to the Court of Final Appeal is based on the ground that it is of great general or public importance.  The first observation that might be made is that the facts of this case are special in themselves.

2.           As regards the first question as to whether an attempt to do an act which is prohibited by an order of the court can constitute a contempt, first of all, the judge did not find the contempt on the basis that it was an attempt.  Secondly, this court has held that on the facts what was done was not sufficient to constitute an attempt.

3.          As to the second question, it is based, in my view, on a false premise because it is based not on the facts, because the facts are that when informed of the order of the court by an Immigration officer, the defendant “chose to refrain from leaving after being so advised”.  The facts do not show that the defendant was prevented by the Immigration authorities from leaving.

4.          As regards the third and fourth questions, those are based on a misreading of the judgment.  The question which was really involved was in the framing of the order of the court and that is what the court has to look at: the framing of the injunction and the framing of the alleged contempt.  The court does not look at the situation as it might have been if those documents had been framed differently or if the plaintiff had been bolder or better advised. 

5.          For those reasons I would not accede to this application.

Hon Le Pichon JA:

6.          I agree.

Hon Suffiad J:

7.          I agree also.