ROGER PAUL GERMAIN YVES FROMENTIN v. KIM’S YACHT CO LTD AND ANOTHER

HCA1226/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.1226 OF 2004

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J U D G M E N T

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1. This contempt proceedings were brought by the plaintiff against the 2^nd defendant in respect of my order made on 29 June 2004.  The terms of the order reads as follow :

“The 1st and 2nd Defendants within 14 days hereof do, and further or in the alternative, that the 2nd Defendant within 14 days hereof do, procure the 1st Defendant to:
(a)	within 14 days hereof provide to the Plaintiff a shipbuilder’s certificate attesting to the building of the Yacht K112 at the 1st defendant’s shipyard in Xinhui in the Mainland China; and
(b)	within 7 days after the said Yacht can set sail to Hong Kong lawfully from the said 1st Defendant’s shipyard in Xinhui in the Mainland China deliver or cause to be delivered the said Yacht to the Gold Coast Marina, Tuen Mun, New Territories in Hong Kong into the joint custody of the parties hereto, and in the case of dispute and/or discord between the parties, into the custody of the bailiff of the Court.”

2. I accept that in contempt proceedings in considering whether Mr Brodie, the 2^nd defendant, was in contempt of court by not obeying the order, it must be an objective test.  However, in an objective test concerning the construction of the order, the order should not be construed in vacuum.  It should be construed in the circumstances of the case with the full knowledge and experience of Mr Brodie as at the material time of the order and the 14 days thereafter in which the 2^nd defendant should comply with the same.  In other words, it should be construed in the context and also as I have said what Mr Brodie would understand that to mean.  In my judgment, the 2^nd defendant actually knew, with his vast knowledge and experience, what a shipbuilder’s certificate means and in particular, it would confer title onto the owner.

3. After hearing the evidence of Mr Brodie in-chief, after cross-examination and his own re-examination, I actually believe that he knew at least :

(1)	the shipbuilder’s certificate he has given on the last day as prescribed by the order that is 13 July 2004 as contained at page 18 of bundle 2A would not be enough to enable the plaintiff to take the yacht out of the PRC to the HKSAR to the plaintiff;
(2)	there would be other problems flowing from such a so-called shipbuilder’s certificate, say custom clearance when the plaintiff was named as the owner of the yacht.

4. This is just an example of the number of hurdles, the plaintiff would have to face with such a document.  That, in my view, fell short of the spirit of the order.  Therefore this is distinguishable from the case of Federal Bank of Middle East Ltd v. Hadkinson (CA) [2000] 1 WLR 1695 whereby Mr Hadkinson’s understanding of what his assets would mean.  As an entrepreneur, Mr Hadkinson obviously knew that his assets should mean assets beneficially owned by him and therefore it would not cover assets he held on trust for the benefit of other members of his family.  It is also different from the undertaking given by the company, by the name of Redwing Forest Products Limited in that case whereby there were two possible constructions of an undertaking and one of them would not cover or include kitchen furniture although it is so named in the order which the defendant company did not in fact carry on business in those products.

5. This is an indication of a purposive approach in the construction of the term of an order or an undertaking given by the defendants.  In respect of strict construction of an order in contempt proceedings, Mr Daniel Fung SC, counsel for the 2^nd defendant, in his forceful submission with flattery submitted that those were the words I have chosen to use in my order.  In the first place, this is an order sought from me.  Secondly, being the person of humble means, I actually know very little about pleasure boats not to mention about a shipbuilder’s certificate thereof and I must confess my ignorance in Admiralty law and procedure. 

6. However, Mr Brodie is different.  I am satisfied that he probably knew that the plaintiff could not succeed in getting this yacht to be delivered to Hong Kong in the joint custody of the plaintiff and the defendants or to the Chief Bailiff of our court.  The whole operation in that stage would not affect Mr Brodie’s lien on the yacht.  The question, however, before the court today is whether Mr Brodie is in contempt of court when he gave the defendant this document, the so-called generically shipbuilder’s certificate.  I do not consider the second part of the order has any bearing today because the order said Mr Brodie would have an obligation to deliver the yacht only after it could set sail to Hong Kong lawfully from Xinhui in the mainland.

7. To my mind, it is the opposite of notion that Roses by another name would smell as sweet.  The question before the court is whether these are roses at all, or a proper shipbuilder’s certificate acceptable to all person in the trade as such.  This is a question of mixed question of fact and law.  In other words, it would not be enough if this is not a shipbuilder’s certificate acceptable to all person in the trade.

8. The question is : was he in contempt of such an order?  To put it in another way, did he deliberately flout the strict wordings of the order.  I accept Mr Fung’s submission that breach of an order is not equivalent to contempt of court.  In order to find contempt of court, I must find that Mr Brodie contuminously, knowing what the order means, disobeyed such an order.  I am afraid I cannot say here that it is a case proved beyond reasonable doubt that Mr Brodie as a shipbuilder himself had deliberately disobeyed an order even when I find that he probably was in breach of the order requiring him to give a shipbuilder’s certificate which he understood what it means and/or properly so-called and accepted by people in its trade.

9. This fine distinction is important as explained by Mummery LJ in the case of Federal Bank cited above.  It has been said that (at p.1705)

“… in the civil law of contempt is that, although there is an obligation to comply strictly with the terms of an order, the court will only punish a person for contempt of court upon adequate proof that the terms of the order are clear and unambiguous and that he has broken those terms …”

10. It is not beyond reasonable doubt by following the strict wordings of the order as he was flouting the order and the requirement of the order and he was contemptuous about it.  Whilst the order itself is not ambiguous, the ambiguity lied in what is a compliance and what is not a compliance.  Here, I must say this is by no means any criticism of the plaintiff’s team of lawyers or the plaintiff himself.  They or even their client probably would not know the document at page 18 would not enable them to bring the yacht to Hong Kong territorial waters.  They could only deal with the unanticipated hurdles until they encountered them. 

11. However, on the other hand, I cannot say the 2^nd defendant knew with mens rea that by following the strict letters of the order, he would be in contempt of court.  To my mind, that is just the contrary situation of an order enabling a creditor to get one pound of fresh from his debtor without allowing him to shed blood and so if blood is shed that would not be covered by the order and therefore consequently it would be an act of disobedience of the order simpliciter.

12. I now come back to the law cited before me and that is in the Hong Kong Civil Procedure 2004 (Vol.1) cited by Mr Fung at paragraph 52/1/16 “any ambiguity in the order or undertaking will be resolved in favour of the alleged contempt law.  Thus, where the order is silent on its geographical scope, it will be construed as limited to Hong Kong only”.  This is only an example in that case.

13. Accordingly, with some reluctance, I have to dismiss the plaintiff’s application to commit the 2^nd defendant for contempt of court on the basis of disobedience of my order dated 29 June 2004.

14. I have reserved the question of costs until this written judgement.  I consider that the 2^nd defendant has just fall short of committing contempt beyond reasonable doubt.  He followed the strict letters of the order but he knew, in my judgement, the document would not be enough to enable the plaintiff to have the yacht delivered to Hong Kong.  I do not consider that he should have the costs of the contempt proceedings.  Accordingly, I make an order nisi that each party should bear his own costs.