WONG SAI HUNG v. WONG YU

DCMP 1709/2022

[2023] HKDC 919

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO.1709 OF 2022

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REASONS FOR JUDGMENT

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1.  This is an application by the plaintiff for an order for committal, a payment of fine into court and issue of a writ of sequestration for contempt of court for non-compliance of an order made in the case of DCMP 4039/2019 to deliver the title deeds and documents of the property (“the Delivery Order”) known as Flat A, 7/F Pak Lok Building, Nos. 322 – 326 Nathan Road, Kowloon (“the Property”).

2.  The Delivery Order was made by District Judge Leung (“Judge Leung”) on 14 September 2020 as amended on 17 November 2020. The deadline for compliance of the Delivery Order was extended to 26 January 2022 by Master Maurice Lam (“Master Lam”) on 1 December 2021 (“the Supplemental Order”).

3.  At the end of the hearing, I made the order for liability for contempt of court to be entered and for the hearing to be adjourned for 7 days until 2:30pm on 30 June 2023 for consideration of sentencing.

4.  I also ordered that the reasons for the judgment to be handed down in writing, which are as follows.

Background

5.  It is not in dispute that, by purchase, the plaintiff became the co-owner of the Property with the defendant. The former applied for an order for sale of the Property under the Partition Ordinance Cap 352 in DCMP 4039/2019.

6.  According to the Judgment of Judge Leung (“the Judgement”, Hearing Bundle page 62 - 75), the application was opposed by the defendant who filed an affirmation (paragraph 20 of the Judgment, Hearing Bundle page 68-69).

7.  Judge Leung found for the plaintiff and made an order for the sale of the Property and for, inter alia, for the defendant to deliver “title deeds and documents of the Property within 28 days from the date hereof to the plaintiff for the purpose of the sale of the Property.” (paragraph 2 of the Order of Judge Leung, Hearing Bundle page 77)

8.  The Order was dated 14 September 2020 so the deadline for the Delivery Order would have been 12 October 2020.

9.  The defendant made an application to vary the cost order nisi on 28 September 2020 which was dismissed by Judge Leung (Trial Bundle page 80 - 81) who also gave reasons for his decisions (Trial Bundle page 83 - 88).

10.  The plaintiff then made two applications, the relevant effect resulted in the Supplemental Order which extended the date for compliance to the Delivery Order to 26 January 2022 (paragraph 3 of the Order of Master Maurice Lam, Hearing Bundle page 90).

11.  It is not in dispute that the defendant has failed to comply with the Delivery Order and the Supplemental Order within the deadline or at all.

12.  Leave was granted by this court on 16 May 2022 (Hearing Bundle page 92) for the plaintiff to take out an application for a committal order, which the plaintiff did by way of an Originating Summons on 20 May 2022.

13.  The defendant has still not complied with the Delivery Order and the Supplemental Order up to the time of the hearing of this application.

The Legal Principle

14.  The approach to determining contempt is trite:

“The proper approach to committal for civil contempt by reasons of breach of a court order is a three stage test, namely, it is necessary to (1) construe the relevant court order to ascertain its meaning and operation (2) then determine whether the defendant has in fact complied with the order as so construed and (3) finally consider whether any failure to comply was accompanied by a state of mind necessary to establish punishable contempt (Kao, Lee & Yip v. Koo Hoi Yan (2009) 12 H.K.C.F.A.R. 830 at 846 B-C, per Sir Gerard Brennan N.P.J….)” (paragraph 52/1/16 Hong Kong Civil Procedure 2023 Vol 1)

15.  The standard of proof required for contempt is also trite:

“To succeed, the applicant must prove to the criminal standard, i.e. beyond reasonable doubt, both the act claimed to constitute the contempt and the alleged contemnor’s requisite state of mind, and there is no difference between civil and criminal contempts in this regard (Eugene Mah Yau Chim v. C King Lee [1969] H.K.L.R. 411…)

…

As to the requisite state of mind in civil contempts, it is not necessary to prove that the alleged contemnor’s conduct was contumacious, i.e. that he directly intended to disorder the order: it is enough to prove (a) that he knew the facts which are said to make his act or omission a contempt and (b) that such act or omission was not accidental…The plea that a defendant has done his best does not mean that the failure is casual or unintentional or accidental (Romag Fasteners Inc v Kim Sang Jo (HCMP 1257/2010, 5 February 2013) at para. 28(iii), per Recorder Ambrose Ho S.C.)…” (paragraph 52/1/17 Hong Kong Civil Procedure 2023 Vol 1)

The defendant’s evidence

16.  The defendant has filed and served 3 affirmations in opposition (respectively dated 7 July 2022 (the “1^st Affirmation”), 13 July 2022 (the “2^nd Affirmation”) and 30 August 2022 (the “3^rd Affirmation”), Hearing bundle page 121 - 122, page 127 - 129, page 130 - 133) along with some 18 documents as exhibits (Hearing Bundle page 157-176).

17.  In summary, the defendant raised that she did not have possession of the title deeds and documents of the Property, that they were in the possession of her younger brother (“Wong Fan”) but she could not get them from him. She claimed that she had already raised this with the court in the hearing on 1 December 2021 (the hearing before Master Lam when the Supplemental Order was given).

18.  There was a direction hearing by District Judge M.K. Liu (“Judge Liu”) on 14 July 2022 which was when the defendant has already filed and served the first 2 affirmations in opposition. Judge Liu directed, amongst others, that the plaintiff should translate all the English documents on file to Chinese and serve the same to the defendant, and thereafter grant leave for the defendant to file and serve a further affirmation in opposition if required. The defendant accordingly filed and served the 3^rd Affirmation.

19.  Judge Liu further directed that no further affirmations should be filed without leave of court (Hearing Bundle page 102).

20.  There was a further direction hearing before District Judge Wong on 22 December 2022. The defendant has, by then, filed and served all 3 affirmations. No application for leave to file further affirmations was made by the defendant (Hearing Bundle page 112).

21.  Despite this court order, on the morning of this hearing, at 9:09am, the defendant sought to file a further affirmation dated 23 June 2023 (the “4^th Affirmation”).

22.  No formal application for leave was made by the counsel for the defendant, Ms. Wendy Lau Chui Ling (“Ms. Lau”).

23.  Any attempt to adduce further evidence at the “Eleventh Hour” would clearly be an ambush so this was rightly opposed by Ms. Wong Hoi Yung, counsel for the plaintiff (“Ms. Wong”).

24.  However, for the sake of complete fairness for the defendant, the court is prepared to exercise the discretion in favour of the defendant to consider the 4^th Affirmation on a de bene esse basis.

The defendant’s case

25.  The defendant denied that she has committed civil contempt of court.

26.  In her Skeleton Argument, Ms. Lau did not deny that the defendant has failed to deliver the title deeds and documents as ordered by the court, she advanced 3 grounds of denial, namely, the defendant’s background (old age, low education level, does not know English, does not know the law, suffering from depression etc.), the “problems” with the Judgment (the defendant alleged that she was absent in the substantive hearing of DCMP 4039/2019, the “concern” of Judge Leung for an interpreter for the Judgment which is in English, the alleged “problem” with the service of the Judgment, and that the defendant did not know the contents of the Judgment etc.), and that the defendant has never been in possession of the title deed of the Property.

27.  In support of her last ground of denial, the defendant sought to produce the 4^th Affirmation enclosing, inter alia, a police record showing that she had made a report to the police dated 20 June 2023 for the “loss” of the title deeds and documents of the Property on 19 June 2023 (which was 4 days before this hearing).

Applying the legal principles

28.  In applying the “three stage test”, firstly, there can be no reasonable doubt as to the construction of the meaning and the operation of the relevant court order: the defendant is to deliver the title deeds and documents of the Property by 26 January 2022 (the Supplemental Order, Hearing bundle page 90).

29.  The order is drafted in Chinese and the meaning and operation of this order is plain and clear. Further, Ms. Lau did not raise any dispute on the construction of this order as to its meaning and operation. It is clear that the first stage is satisfied beyond reasonable doubt.

30.  As to the second stage, again, it is not disputed that the defendant has failed to deliver the title deeds and documents of the Property at all so again, the fact that the defendant has failed to comply with the court order as construed is also beyond reasonable doubt.

State of mind

31.  Thus, the only dispute concerns the third stage, that is, whether the defendant’s failure to comply was accompanied by a state of mind necessary to establish punishable contempt.

32.  In finding whether the state of mind of the defendant is necessary to establish punishable civil contempt, there is no need to establish that she intended to disorder the order.

33.  As stated above, there are two limbs to be satisfied: “it is enough to prove (a) that she knew the facts which are said to make her act or omission a contempt and (b) that such act or omission was not accidental”.

The first limb

34.  In the first and second “grounds of denial”, Ms. Lau appeared to suggest that the defendant did not “know the facts which are said to make her failure to comply a contempt”.

35.  I would reject this argument.

36.  Firstly, the fact that the defendant is old (60 years old) relatively uneducated and ignorant of law etc. does not mean that she is not aware of the simple and clear order that she needed to deliver up the tile deeds and documents of the Property by a certain date.

37.  Secondly, as for the claim that the defendant was not present at the substantive hearing on 31 August 2020 for DCMP 4039/2019 (which is disputed by Ms. Wong), I note that the Judgment stated “The defendant was not represented and appear” (Hearing Bundle page 75).

38.  From my reading, this seems to show that the defendant did appear for the hearing. But even if I am wrong, the defendant has never raised this in any of her affirmations (even in the 4^th Affirmation) or even in her correspondences with the court. It is clearly inappropriate for Ms. Lau to raise such evidence from the bench.

39.  Further, not only that the defendant never raised that she had not attended the substantive hearing, she had never raised any evidence why she failed to do so. Whether ignorant of law or not, it was clear that the defendant was able to put in an affirmation of opposition in DCMP 4039/2019 raising at least 6 grounds of opposition for an order for sale including loss of rental income (paragraph 20 of the Judgment, Hearing Bundle page 68). I can see no reason why she could not attend the hearing even assuming that she really had not.

40.  Thirdly, any attempt to suggest that, for whatever reasons (e.g. failure to attend the substantive hearing, not served the Judgment properly, language barrier, illness etc.) that she was somehow unaware and ignorant of the Judgment and the Delivery Order was clearly inconsistent to the fact that the defendant was able to apply to vary the cost order nisi of the Judgment on 28 September 2020, which was 14 days after the date of the Judgment and the Delivery Order. She could not have understood the relative intricacies within the Judgment such as a cost order nisi without proper overall knowledge and understanding of the Judgment.

41.  Fourthly, there is no dispute that she did personally attend the hearing concerning the cost order on 17 November 2020 (Hearing Bundle page 88). During the hearing, she was able to produce arguments of her financial concerns etc., but she clearly did not raise any concern that she did not understand the Judgment or the Delivery Order. Further, if she understood the Judgment and the Delivery Order, it was inexplicable why she failed to raise at this stage any concern that she could not comply with the Delivery Order.

42.  In any case, all such arguments are irrelevant given that it is not in dispute that the defendant attended the hearing before Master Lam on 1 December 2021 when the Supplemental Order was given in Chinese. This was the first time that she alleged that she was not in physical possession of the title deeds and documents of the Property so even on the defendant’s case, by this time, she must know, beyond reasonable doubt, “the facts which are said to make her failure to comply a contempt”.

The second limb

43.  As such, the only relevant “ground of denial” raised by Ms. Lau was that the defendant has never been in possession of the title deeds and documents of the Property.

44.  One observation, as stated above, is that one would question why the defendant, having proper knowledge of the Delivery Order, never raised it until the hearing before Master Lam on 1 December 2021 if she has never been in possession of such documents.

45.  More importantly, this “ground of denial” clearly contradicts the series of correspondence between the plaintiff’s solicitors, Messrs. Pauline Wong & Co. (“PWC”), and Wong & Tang Solicitors (“WTS”) which, in a letter dated 13 August 2021 (Hearing Bundle page 144-27), stated that:

“We act for Madam Wong Yu, the registered owner of ½ share of the Premises…We are instructed that the title deeds and documents (“the Documents”) are in our client’s possession…”

46.  When PWC wrote back on 18 August 2021 to seek confirmation of the list of title deeds and documents in “you or your client’s possession” (Hearing Bundle page 144-28), WTS replied on 23 August 2021 (Hearing Bundle page 144-31) stating that:

“We are instructed to inform you that the title deeds and documents as per the schedule…are in our client’s possession…”

47.  Indeed, it was only when PWC wrote on 26 August 2021 enclosing the Delivery Order and seeking compliance with the order (Hearing Bundle page 144-33) that WTS replied on 6 September 2021 (Hearing Bundle page 144-38) that:

“…we have no further instructions to act for Madam Wong Yu.”

48.  PWC subsequently wrote to the defendant directly on 8 September 2021 stating, inter alia, the Delivery Order and the risk and consequence of a failure to comply (Hearing Bundle page 144-40 - 144-41).

49.  The defendant did not address such matters until her 3^rd Affirmation (Hearing bundle page 130 and 131) when she claimed that she told the plaintiff on 3 August 2021 that the title deeds and documents were kept by Wong Fan, and that (as I translate):

“I discussed with my younger brother and decided to hand in the title deeds to WTS for arranging for inspection, but Wong Sai Hung’s lawyers told WTS that the court has made an order for Wong Yu to deliver the title deeds and documents, therefore WTS informed me and my younger brother to take the title deeds back, afterwards I went to WTS on 1 September to sign for receipt of the documents, but arranging for lawyers to deal with matters and return of the documents was dealt with by my younger brother, I was not involved. Therefore, although I signed the receipt for the documents, I did not take away any of the title deeds documents (the lawyers can confirm this)…”

“5. At the time, because I coordinated the delivery of the title deeds, and then my younger brother gave the title deeds to WTS to be dealt with under my name, this caused my misunderstanding that I have the power to obtain the title deeds.”

50.  I find this ludicrous.

51.  Firstly, the defendant is the registered co-owner of the Property so the title deeds and documents clearly belonged to her and not to Wong Fan.

52.  Her claim of a “misunderstanding” is baffling: effectively she is claiming that she actually has no power to obtain her own property but she “misunderstood” that she has such power.

53.  Ms. Lau attempted to explain this by suggesting that the defendant was ignorant of the law. As I mentioned during the hearing, if someone robbed me of my expensive watch, I would not need “legal advice” to know what I could do to try to recover it, especially when I all along know the identity and address of the robber!

54.  Also, the defendant on one hand admitted that she had a) discussed with Wong Fan in making the decision to hand in the title deeds to WTS; b) had been personally informed (along with Wong Fan) by WTS to take the deeds back; and c) had personally signed the receipt for the title deeds and documents from WTS, and yet at the same time, she claimed that she was “not involved” with this matter. This is clearly self-contradictory.

55.  Indeed, if the court examines her admission to personally signing for the receipt of the deeds and documents at WTS and her claim that she “did not deal with” the return of such documents, one must question how she could sign for the receipt and yet somehow failed to take physical possession of the documents. The defendant gave no evidence of the circumstances of how this could have happened: was she suggesting that Wong Fan physically forced her to give up possession of the documents, i.e. robbing her in front of the WTS solicitors? Even if one speculates such a ridiculous set of circumstances, the defendant also did not give evidence as to what steps she took to attempt to recover possession. She claimed that WTS could “confirm this” but of course failed to produce any such evidence from WTS.

56.  The only logical conclusion of all this is that after signing for the receipt, the defendant voluntarily gave up physical possession of the documents to Wong Fan. It is a clear indication of her state of mind: she certainly did not, and could not have, “accidentally” handed the documents to Wong Fan in defiance of the Delivery Order.

57.  Further, if indeed she had instructed Wong Fan to deal with the matter, he could only act as her agent, but WTS never mentioned Wong Fan, either being as an agent for the defendant instructing WTS or being in possession of the title deeds and documents (on behalf of the defendant), or at all. Of course, there was no evidence from WTS or, indeed, Wong Fan himself about such arrangements so all these were nothing but bare (not to mention inconsistent) assertions by the defendant.

58.  Incidentally, if the defendant had intended to raise any argument of ignorance in law, this series of correspondence clearly contradicts that argument. Even if she did not have any legal representations in DCMP 4039/2019 and the current action (until very recently), she cannot claim ignorance of “the facts which are said to make her failure to comply a contempt” even on her own evidence.

59.  More importantly, even if we assume that Wong Fan is in physical possession of the title deeds and documents now, the defendant has not provided any details of any attempt to retrieve them She has simply stated in the 1^st and 2^nd Affirmation that she could not get them from Wong Fan. In her 3^rd Affirmation, she claimed (paragraph 6, Hearing Bundle page 131) that there was a deteriorating relationship between her and Wong Fan, and that:

“After the Delivery Order, I could only try to arrange with my younger brother to obtain the title deeds, but because of the bad emotions with him, communication failed to yield any results.”

60.  There was a complete lack of information as to what attempts were made and how these failed to yield results: there was no evidence of any communications of any such requests nor the replies from Wong Fan, and there was no evidence of any action taken by the defendant to attempt to retrieve such documents, let alone any claim that she had “done her best”.

61.  The defendant sought to adduce by way of exhibit in the 4^th Affirmation a police record which showed that she made a report to the police on 19 June 2023 that the title deeds of the Property was lost or stolen.

62.  As such, the court is asked to believe that after non-compliance for 2 years and 8 months with the Delivery Order (and 1 year and 5 months with the Supplemental Order), and having been aware all along that the subject of such an order was in the physical possession of Wong Fan, the defendant only went to report to the police 4 days before the substantive hearing for contempt of court, and even then, the defendant did not give any useful information to the police to help them arrest the “robber” or to recover possession of her property: according to the police record, the defendant only (as I translate):

“…reported to the police that on 19 June 2023 at 7:23pm, the following property was lost or stolen somewhere in Hong Kong: 1 number of Lease…”

63.  The defendant all along knew that it was Wong Fan who had “robbed” her of her property and presumably would know his contacts and address, yet she failed to provide such information to the police. To inform the police that the property was stolen “somewhere in Hong Kong” under such circumstances could only be a deliberate vagueness so not to assist the police to investigate and recover the stolen property.

64.  When asked by the court, Ms. Lau claimed that this was because she won’t do that to her own brother.

65.  It is entirely illogical that on one hand, the defendant claimed deteriorating relationship which caused Wong Fan to refuse to return her the documents, but yet at the same time claim that she cared for her brother so not to mention his details to the police.

66.  This is clearly a lie.

67.  The police report simply adds weight to the already-obvious fact that the defendant has never made any serious attempt to comply with the Delivery Order: it is nothing but a desperate “window dressing” attempt to show that the defendant has done something, but the attempt was so laughably close to being nothing. It is blatant what the defendant’s state of mind is all along: she certainly has not “accidentally” forgotten to inform the police as to who actually possessed her “lost or stolen” property in order to recover physical possession.

68.  Thus, even if I were to allow leave for the 4^th Affirmation (including this exhibit) to be adduced for the hearing, the content is clearly detrimental to the defendant’s own case.

69.  As such, it is beyond reasonable doubt that in her failure to comply, “such act or omission was not accidental”. From her evidence, it is clear that the defendant was very far from “having done her best to comply”, let alone the trite legal principle that: “The plea that a defendant has done his best does not mean that the failure is casual or unintentional or accidental”.

Conclusion

70.  Having considered all the evidence and the submissions of the respective counsels before me, I find that the “three stage test” was satisfied beyond any reasonable doubt and therefore find the defendant guilty of a civil contempt of court.