AQUA-LEISURE INDUSTRIES, INC. AND ANOTHER v. AQUA SPLASH LTD.

HCA 18928/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 18928 OF 1998

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J U D G M E N T

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1. This is an application for an order of committal by the plaintiffs against the defendant and its directors for failure to comply with the order of Keith J granted on 14 May 1999. Leave was granted by this court on 4 December 2000.

2. Mr Harris, on behalf of the directors of the defendant applies for a discharge of the Notice of Motion and the Statement in support of the leave application on the basis that they do not contain sufficient particulars of the allegations as required by Order 52 of the Rules of the High Court.

3. There can be no doubt that the Statement and the Notice of Motion only contain general allegations that the defendant had failed to comply with the order of Keith J. But for the purpose of the present application I am inclined to take the view that the particulars of those allegations are, in fact, contained in the affirmation and affidavit in support of the application.

4. I am also prepared to accept that by reference to those affidavit and/or affirmation the defendant and its directors must be able to fully apprehend the exact nature of the plaintiffs' allegations against them. The issue that I have to decide is whether the defects in the Statement and the Notice of Motion can be cured by the contents of the supporting affirmation and affidavit.

5. On this particular issue I feel bound by the authorities referred to this court, namely, the case of Chiltern District Council v. Keane [1985] 1 WLR 619 and Harmsworth v. Harmsworth [1987] 1 WLR 1676, in particular, the judgment of Nicholls LJ in the case of Harmsworth v. Harmsworth at page 1683.

6. I am not persuaded that the difference in the wordings of the English Rules and those of the Hong Kong Rules should make any difference in the approach that the court should adopt on an application of this nature. The "grounds" stipulated in Order 52 rule 2 of the Rules of the High Court must contain detailed allegations of the alleged breach in support of the application for leave. After all, as often said, contempt proceedings are quasi-criminal proceedings with serious consequences. I quote from the Hong Kong Civil Procedure, page 721:

"The statement in support of an application is to be treated in similar manner as an indictment in criminal proceedings, having regard to the criminal nature of the sanctions for contempt."

7. It cannot be said that in a criminal case the defect in the indictment can be cured by the contents of the summary of facts in support of the indictment, or the statements of the prosecution witnesses.

8. The court must be presented with a precise and accurate statement pertaining to the background of the case, in particular, the allegations of the breaches of the court's order in an application for leave before a decision as to whether leave should be granted is made.

9. I appreciate that the approach that I have just mentioned is indeed a very strict approach to the application. But I am persuaded that such a strict approach is required in an application for a committal for contempt of court, which, as I keep saying, has a serious and far-reaching effect. I am firmly of the view that strict compliance with the requisite rules must be observed.

10. In the light of this decision the Statement in support of the leave application is defective and the leave granted in pursuance to such statement should be set aside.

11. That being the case, the proposed amendment to the Notice of Motion is not going to assist the plaintiff at all. I am persuaded that the leave granted to the plaintiff to make an application for an order for committal should be set aside, and there is nothing further for this court to continue with. The application is therefore dismissed.

12. But for the avoidance of doubt I expressly state that the order made by this court today is without prejudice to the plaintiffs commencing a fresh proceeding on properly formulated Statement.

(argument on costs)

13. The application, of course is dismissed on a technicality, but it is dismissed because of the plaintiffs' failure to comply with the Rules of the High Court.

14. The directors of the defendant may well be guilty of misconduct for failure to comply with the court's earlier order if the plaintiffs' allegations are substantiated, which is a matter that has to be gone into in greater details at an appropriate stage. But the alleged misconduct even substantiated is no justification for the defendant or its directors to incur additional or extra costs which is a result of the failure on the part of the plaintiffs to properly follow the rules of the court.

15. That being the case the costs must follow the event. I order that the defendant and its directors' costs of today is to be borne by the plaintiffs in any event. But as a safeguard, and bearing in mind the background of this matter, I order that this costs order is not to be enforced without the leave of the court, and for that purpose I grant the parties liberty to apply.