FONG KUN SHENG RAYMOND v. FONG CHIU LUN

HCA484/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.484 OF 2005

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J U D G M E N T

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1. I have before me a motion for an order of committal for contempt of the court dated 6 April 2005, taken out by the plaintiff against the defendant.  The defendant is not present today.  The application for committal is based on an alleged breach of an order made on 18 March 2005 by Deputy Judge Gill in favour of the plaintiff against the defendant.

2. The background to this case is somewhat complicated.  I would only briefly state that the relationship between the plaintiff (son) and the defendant (father) who is now alleged to be over 70 had been an unhappy one.  The father divorced his wife, that is the plaintiff’s mother some time ago.  The father was alleged to have relationship with other woman.  The son, having gone away to school as a teenager, never had a close relationship with the father. 

3. The affidavit evidence in support of the application for injunction before Deputy Judge Gill showed that, upon the son’s return from England to Hong Kong, the relationship between the son and the father had been stormy with a large number of occasions when the father caused public embarrassment to the son, both at the son’s place of work as well as at the son’s residence.

4. This was the background which led to the son, the plaintiff seeking an injunction order against the father.  That injunction order was granted by Deputy Judge Gill on 18 March 2005.  Paragraph 1 which is the critical paragraph relied upon of that order says that : “The Defendant [namely, the father] be restrained, whether by himself, his servants, agents or otherwise howsoever, from entering or remaining in the vicinity of the building where the plaintiff is working at Block A, 21 Tung Yuen Street, Yau Tong Bay, Kowloon, Hong Kong.”  

5. That same night after the order being made, the order was served on the father.  It was effected by personal service as evidenced by an affirmation of service of Evan Cheng Ching Lim, dated 24 March 2005, wherein at paragraph 1 it was stated that the service of the order and its Chinese translation, the Writ, the inter partes summons of 18 March, the supporting affidavit of 17 March of both Fong Kun Sheng Raymond (that is the son) as well as Winnie Kwan (that is the son’s assistant) as well as other documents were effected.  

6. The two essential elements therefore of the contempt had been satisfied, that is the making of the order and the service of the order.  The third essential ingredient required to establish contempt was the breach of the order.  The breach was alleged and proved by the second affirmation of Winnie Kwan, which was a confirmation of the annexed Statement pursuant to Order 52 r.2(2).  It is paragraph 4 of the Statement which is critical.  

7. There in paragraph 4, it was stated that on 23 March 2005 that is some five days after the service of the order, at 11 a.m. in the morning, the defendant and a woman rushed inside the building where they stayed, with the woman staying at the reception.  It is not clear whether it was the reception on 1^st floor of that building where the office of the plaintiff was located, or the reception on the ground floor.  But what is important is that the father (the defendant) attempted to enter the main office of the company, that is attempted to enter the 1^st floor and did.  Even though a guard stopped the father (the defendant), saying that he should not do so because of the court order restraining him from doing so, the father pushed the guard aside and went into the main office.  The defendant ignored the request to leave the company’s office on the 1^st floor, walked into a room where the staff of the company was working, interrupted the work and asked if the plaintiff was in the office.  The defendant, after walking around the office subsequently went out.  The police then came. 

8. What had been sufficiently proved to my satisfaction is that on 23 March, long after the defendant had been served with the order and with knowledge of the restraint injunction granted against him from going onto the building, he went there and remained there.  Therefore I find as a fact, at the appropriate standard of beyond reasonable doubt, that there was a breach by the defendant of the order of the court made on 18 March 2005.  

9. I am therefore satisfied that the defendant is guilty of having committed a civil contempt, and I find also, based on the aforesaid evidence, that the breach was not accidental.  The approach I propose to adopt, having reached that finding of civil contempt is per Ma J (as he then was) in the case of Citybase Property Management Ltd v. Angel Kam in HCA9676/2000, at paragraph 32, dealing with the question of punishment on a subsequent occasion.  

10. It seems to me that, in the absence of the defendant, I should adjourn the question of punishment so that the defendant can have an opportunity of explaining to me what happened and the circumstances that led to his breach, as well as possibly hearing from the plaintiff, the background of the detail relationship between the father and the son which led to the breach of the order and this unhappy domestic situation.  It seems to me appropriate that I should give the plaintiff and the defendant an opportunity to make submissions to me as well as to give evidence before me before the court reaches a final decision on the appropriate punishment. 

11. Accordingly, I would also adjourn, per the Citybase case, this motion to a date to be fixed.  What I would therefore propose in the order that I make is that there is a finding of guilty of civil contempt.  I would order the issue of a warrant of arrest so that the defendant can be brought before this court to enable the court to decide what should be the appropriate punishment at the adjourned hearing.  I direct that immediately upon the execution of the search warrant and within 24 hours of that execution the defendant be brought before this court and, at that time when the defendant is brought before this court, there would be a directions hearing when the court can direct the parties as to the date of the adjourned hearing and the steps necessary to be taken for the adjourned hearing including the question of the father and the son giving evidence and further submissions to be made by the father and/or the son to the court for the adjourned hearing and including also the question of the court granting bail pending the adjourned hearing. 

12. I reserve the costs of today, so that the question of costs can also be determined finally at the time of the adjourned hearing.