FUNNY ELECTRONICS COMPANY LIMITED v. WORLD ASIA PLASTICS DIE-CASTING MOULD FACTORY (a firm) AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. The plaintiff applies for committal of Lau Hung Woon for contempt in disobeying an ex parte order made by Barnes J. on 4th February 1985. The material part of that order required the 2nd defendant, by a director, to forthwith deliver up to the plaintiff's solicitor certain moulds. It was executed on 5th February by the plaintiff's solicitor who served upon Lau the requisite documents. The plaintiff's solicitor collected a large number of moulds, but was not able to find the moulds for a right speaker box rear cabinet. Lau informed the plaintiff's solicitor that the 2nd defendant had indeed tested the moulds in question, but that he could not recollect their present whereabouts; he promised to notify the plaintiff or the plaintiff's solicitor once he located them.

2. Nothing was heard from him so on 3rd May 1985, nearly 3 months after execution of the order, the plaintiff applied for leave to apply for committal of the respondent for contempt of court in accordance with the provisions of Order 52 of the Rules of the Supreme Court. On 17th May 1985 Barnos J. gave leave to apply for committal. Notice of Motion was taken out on 21st May 1985, seeking committal of the respondent and costs on indemnity basis. The Notice of Motion was served on 29th May personally upon the respondent.

3. The Motion was to be heard on 14th June 1985. On 11th June 1985, 3 days before the hearing, the plaintiff's solicitors were informed by the 2nd defendant's solicitors that the moulds required were at the 2nd defendant's factory premises. By arrangement between the solicitors the moulds were collected on 13th June 1985, the day before the hearing. In consequence, the plaintiff asked only for costs and no order for committal was made. In July the plaintiff discovered that the moulds collected were in fact not the right ones. In consequence of that, the present summons was ultimately issued.

4. Mr. Chain for the respondent takes 2 points. First, he says that the respondent should not be held to be in contempt unless the evidence shows that he had the ability to comply. When the respondent was first served on 5th February, it is not disputed that he said he had no recollection of where the moulds were. That statement has not been challenged by the plaintiff. On the other hand, the evidence shows that the respondent is the managing director of the 2nd defendant. He must, therefore, have been in a decisive position both to locate the moulds and to cause the 2nd defendant to do so and to deliver them up.   In my view, it is quite properly open to me to draw such an inference. But without drawing that inference, I will proceed to Mr. Chain's second ground.

5. Mr. Chain's second ground is that the penal notice upon which the Motion is founded is bad in law. He refers me to Order 45 rules 7(3) & (4).  I accept that it is clear from these that where an order requires a body corporate to do an act, it cannot be enforced by committal of an officer of that body unless notice is served upon him with an endorsement that if the body corporate neglects to obey the order within the time specified, he is liable to process of execution to compel the body to obey it.

6. This is made quite clear by the form of the requisite endorsement set out in the following passage at p. 671 of Vol. 1 of the 1985 edition of the Supreme Court Practice, pare. 45/7/6:

The penal notice in this case was framed in the following terms -

"If you, Lau Hung Moon, director of the within named the 2nd defendant, Yee Hing Hung Foon Industrial Company Limited, disobey this order, you will be liable to process of execution to compel. you to obey it."

It is clearly defective, having regards to the requirements of order 45 rules 7(3) & (4).

7. Mr. Chain has also submitted that the penal notice is defective in not stating the time within which the order had to be complied with. The relevant order was for delivery up "forthwith". Were this the only ground he complained of in regard to the penal notice, I would not have been disposed to regard it as sufficient, but it does add to the first deficiency.

8. At this point, I think it is helpful to look at the matter in broad terms. There clearly appears to have been compliance with all the other many requirements of the order; at any rate the only complaint made is that relating to the missing moulds for the right speaker box rear cabinet. While the plaintiff is clearly entitled to have those moulds delivered up, it is difficult to see what threat failure to secure them poses to the plaintiff.

9. Reverting then to the question of whether I should regard the deficiency in the penal notice to be merely an irregularity or not, in my view penal notices should be strictly construed. I think that in the present case the deficiency is such that the notice must fail altogether. If I am wrong in that view and the deficiency is to be regarded as merely an irregularity in terms of Order 2 of the Rules of the Supreme Court, then having regard to the matters I have mentioned, I would be disposed to set aside the Motion on the ground that there has been failure to meet the requirements of Order 45 rules 7(3) & (4).

10. I therefore dismiss the application. Subject to any submissions counsel may wish to make, I propose to make no order as to costs having regard to the singularly unsatisfactory conduct of the respondent in this matter, conduct by which the respondent has brought upon himself these proceedings.