SINO WOOD INVESTMENT LTD v. WONG KAM YIN

FACV No. 3 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2005 (Civil)

(ON APPEAL FROM CACV No. 130 of 2004)

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Between:

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J U D G M E N T

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Chief Justice Li:

1.  I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Bokhary PJ:

2.  I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Chan PJ:

3.  I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

4.  In this appeal, the Court is asked to consider what conduct amounts to “leaving Hong Kong” so as to constitute breach of a prohibition order and therefore a contempt of court. 

The statutory provision and the order

5.  The jurisdiction to make prohibition orders arises under s 21B(1) of the High Court Ordinance, Cap 4, which states:

“The Court shall have jurisdiction to make an order prohibiting a person from leaving Hong Kong (a prohibition order) to facilitate the enforcement, securing or pursuance of  [certain specified civil judgments and claims].”

6.  Pursuant to s 21B(11), the form of a prohibition order has been prescribed by rules of court, in particular, by O 44A r 3(2), which refers to Form No 106 in Appendix A. 

7.  On grounds which do not concern the Court on this appeal, a prohibition order, dated 24 May 2003, was made against the defendant (the respondent) in the present case.  The order is in accordance with the prescribed form, relevantly stating:

“It is ordered that the Defendant, Wong Kam Yin ...... is prohibited from leaving Hong Kong.”

The facts

8.  It was served on the defendant on 26 May 2003, endorsed with a penal notice.  Right after being served, she went to the Macau Ferry Terminal and, having acquired a ferry ticket for Macau, proceeded to the immigration counter situated in a restricted area, where she presented her Hong Kong identity card to the immigration officer with a view to being cleared for passage to Macau.  When told that there was a prohibition order against her, she “chose to refrain from leaving after being advised” (as the Immigration Department put it in their letter to the plaintiff’s solicitors dated 26 May 2003).

The contempt proceedings at first instance

9.  The plaintiff obtained leave to bring proceedings for contempt, alleging that the defendant had “knowingly acted in disobedience of” the prohibition order “by taking steps to leave Hong Kong”. 

10.  Deputy High Court Judge Saunders (HCA 307/2002, 14 April 2004) found that the defendant knew that a prohibition order had been made against her and that the penal notice had been adequately drawn to her attention.  He held that there was a breach of the order in that the defendant’s acts constituted “leaving Hong Kong”: 

“In my view the act of leaving Hong Kong is not effected solely and simply by physically crossing the territorial boundary of Hong Kong, whether that boundary be on land or on sea.  Some acts in relation to the act of leaving Hong Kong will be merely preparatory and will not constitute the act of leaving Hong Kong.  Those are acts such as packing a bag, the purchase of a ticket to travel either by land, sea or air, and probably even travelling to the appropriate place of departure according to the mode of travel chosen.  But I am satisfied that once a person enters into the area that is restricted for departing passengers only, and presents a travel document to an Immigration Officer, thereby seeking permission to pass beyond the immigration point to board the means of transport, that person has commenced the act of ‘leaving Hong Kong’.  When Madam Wong presented her Hong Kong Identity Card to the Immigration Officer, she was in the process of ‘leaving Hong Kong’ and was thereby then performing the very act she had been prohibited to perform.” (§35)

The decision of the Court of Appeal

11.  The judge’s decision was reversed by the Court of Appeal: see [2004] 2 HKLRD 1053.  With the concurrence of the other members of the court (Le Pichon JA and Suffiad J), Rogers VP emphasised the requirement that words used in injunctions must be clear and held that the defendant’s conduct did not constitute “leaving Hong Kong”, stating:

“Whilst going up to an immigration counter with a ticket in hand might well be a step towards leaving Hong Kong it did not constitute leaving Hong Kong.  The words are clear.  ‘Leaving Hong Kong’ is not constituted by taking steps towards that end, it is only constituted by leaving Hong Kong.  A person only leaves a place when he or she is no longer there.” (§13)

Construction of s 21B(1) and the prohibition order

12.  Accordingly, while the Judge had construed the word “leaving” as referring to a process which, in the present case, had started at least with presentation of the defendant’s identity card at the immigration counter with a view to boarding the Macau ferry, the Court of Appeal held that “leaving Hong Kong” would not occur until she had travelled to a point when she was no longer in Hong Kong.  Mr Edward Chan SC, appearing with Mr Benjamin Chain for the defendant, seeks to uphold the latter construction.

13.  I am respectfully unable to accept the Court of Appeal’s construction.  In my view, in the present context, the phrase “leaving Hong Kong” denotes conduct which involves a trajectory, a process which takes a person away from somewhere within Hong Kong to a place outside Hong Kong.  A person may properly be said to be “leaving Hong Kong” once he embarks on that process.  He has “left Hong Kong” when he has travelled beyond our territorial confines.  When exactly the process of leaving begins will depend on the circumstances but, linguistically, I am unable to regard “leaving Hong Kong” as referring uniquely to arrival at the point when one can be said to have left Hong Kong.

14.  More fundamentally, the express purpose of the power given by s 21B(1) to prohibit a defendant fromleaving Hong Kong is to facilitate the enforcement, securing or pursuance of the judgments or civil claims specified.  A prohibition order therefore aims to prevent a defendant leaving the jurisdiction where his absence from Hong Kong is likely to impede the pursuit of those legal benefits.  Yet if the Court of Appeal’s approach is correct, the prohibition order is not contravened, and its enforcement cannot be called for, unless and until the defendant has already left the jurisdiction and so placed himself beyond the reach of the court.  Such a construction runs counter to the express purpose of the section and postulates the making of orders that are incapable of being enforced against the defendant upon contravention. 

15.  Mr Chan SC endeavoured to argue that the court should ignore the terms of the Ordinance when construing the terms of the prohibition order since the key consideration in contempt proceedings is how the order was understood by the defendant.  I do not agree.  In determining the meaning of the order so as to decide whether it has been violated, the court plainly must read the order in the light of the section giving the court the power to grant such orders.  Where, as in the present case, the purpose of the power is expressly indicated, this provides an essential guide to interpretation.  Such an exercise of construction must not be confused with application of the principle concerning ambiguity in the terms of the order mentioned below.

Section 21B(7)

16.  Section 21B(7) gives a power of arrest to immigration officers, police officers and bailiffs where the person subject to a prohibition order “attempts to leave Hong Kong in contravention of that order”.  Mr Chan argues that the Ordinance thereby distinguishes between conduct (like that of the defendant) which is an “attempt to leave” and the act of “leaving Hong Kong”, meaning, as the Court of Appeal held, taking oneself beyond the territorial boundaries of the Region.  It follows, so the argument runs, that unless and until one actually leaves Hong Kong, one is at most only involved in an attempt to leave and therefore only in an activity which does not contravene the prohibition order, although it may trigger the s 21B(7) power of arrest.  Far from the order being unenforceable, the power of arrest for attempted breach gives it all the teeth it needs.

17.  I do not accept that argument.  Section 21B(7) is concerned with a person who, having been served with a prohibition order, “attempts to leave Hong Kong in contravention of that order”.  Accordingly, while the subsection refers to the conduct in question as an “attempt to leave”, it plainly identifies such conduct as a contravention of the order which prohibits “leaving”.  Section 21B(8) prescribes as possible consequences of such “attempts” court orders for the examination or imprisonment of the person concerned, including imprisonment for the duration of the prohibition order.  Sanctions of such a nature are plainly intended as responses to nothing short of a contravention of the order.  The reference to an “attempt to leave” in s 21B(7), rather than “leaving”, merely reflects the fact that the person concerned is prevented by arrest from completing the process of absenting himself from the jurisdiction.  It does not support the argument that his conduct involves no contravention of the prohibition against “leaving Hong Kong”. 

18.  Section 21B(7) gives a power, but does not impose a duty, on the public officers concerned to make an arrest.  Existence of that power does not imply exclusion of civil contempt proceedings as the normal means of enforcing the court’s order at the behest of the other party. 

Contravention of the order in the present case

19.  The judge rightly regarded the defendant’s conduct in the present case as forming part of the process of leaving Hong Kong.  He found that she had entered a restricted area which, both as a matter of law and of practice, is accessible only to departing passengers.  Thus, under the Shipping and Port Control (Ferry Terminals) Regulations, Cap 313, a person is excluded from a restricted area unless he is “a departing passenger on a ferry vessel ...... in possession of a valid travel document and a valid passenger ticket......” passing through the area “for the purpose of embarking on a ferry vessel of which he is a ferry passenger” (reg 23(1) and (2)).  He also found that the defendant had the necessary ticket and presented her identity card, which serves as a travel document, to the immigration officer with a view to obtaining clearance for such embarkation.  She was undoubtedly in the course of “leaving Hong Kong” in breach of the prohibition against her doing so.

Ambiguity in the terms of the order

20.  The defendant argues that she should not in any event be punished for contempt since the terms of the order were ambiguous, having resulted in a difference of judicial opinion in the courts below.

21.  It is of course well-established that punishment for contempt is only imposed where the order contravened is clear and unambiguous: Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387; Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87.  

22.  This is a principle which aims to ensure fairness to the defendant and to exclude punishment where the order makes it insufficiently clear what must or must not be done in order to avoid its contravention.  This is particularly so where the order is in mandatory terms.  As Lord Upjohn stated (with the concurrence of the other members of the House of Lords) in Redland Bricks Ltd v Morris [1970] AC 652 at 666:

“If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact ......”

23.  In R & I Bank of Western Australia Ltd (1993) 10 WAR 59 at 69, Ipp J cited a useful formulation of the principle in an American case in the following terms:

“The requirement of clarity was succinctly stated in Collins v Wayne Iron Works 227 P 326, 76 A 24, 25 (1910) – described in Miller, Contempt of Court (2nd ed, 1989), p 424 as ‘a leading American case’ – where it was said of an injunction that: ‘[It] should be as definite, clear and precise in its terms as possible, so that there may be no reason or excuse for misunderstanding or disobeying it; and, when practicable, it should plainly indicate to the defendant all of the acts which he is restrained from doing, without calling on him for inferences or conclusions about which persons may well differ.”

24.  In the present case, there was no ambiguity.  The order specifically prohibited the defendant from leaving Hong Kong.  Luxmoore J’s remarks in Iberian Trust Ltd (above, at 95) are apposite:

“If the Court is to punish any one for not carrying out its order the order must in unambiguous terms direct what is to be done. In saying this I do not intend to say anything contrary to what was said by Chitty J in Attorney-General v Walthamstow Urban Council (11 Times LR 533), that it was the duty of the defendants to find out the proper means of obeying the order. Of course, there is such a duty on a defendant where the order either prohibits or orders the doing of a specific act.”

25.  The defendant knew that the order had been made against her and there was nothing ambiguous in its wording that might have prevented her from realising that her intended departure for Macau was a contravention.  The case made on her behalf involves the purely legal argument as to whether, given that her planned departure was foiled at the immigration counter, she had gone far enough along her intended path to constitute “leaving Hong Kong”.  There is no question of any actual or potential unfairness to the defendant springing from any uncertainty or deficiency in the terms of the order.

Conclusion

26.  Leave had also been given for argument on the question whether a person subject to a prohibition order who does not “leave” Hong Kong, but attempts to do so, is guilty of contempt.  However, in the light of the foregoing conclusion, that question does not arise for determination. 

27.  I would accordingly allow the appeal and set aside the judgment of the Court of Appeal.  The judge, having decided that it was an appropriate case for the issue of orders for committal, had intended to proceed to hearing counsel on the terms of those orders.  I would accordingly remit the matter back to him to decide the terms of those orders after hearing the parties.  As the parties are agreed that costs should follow the event, I would order the defendant to pay the costs in this Court and in the Court of Appeal.  Costs before the judge are to be dealt with by him after hearing counsel, as indicated in paragraph 52 of his judgment.

Lord Hoffmann NPJ:

28.  I agree with the judgment of Mr Justice Ribeiro PJ.

Chief Justice Li:

29.  The Court unanimously allows the appeal and sets aside the judgment of the Court of Appeal.  The Court orders the defendant to pay the costs in this Court and in the Court of Appeal and remits the matter to the judge to decide the terms of the orders for committal and for the costs of the proceedings at first instance.

Mr Benjamin Yu SC and Miss Yvonne Cheng (instructed by Messrs Allen & Overy) for the Appellant

Mr Edward Chan SC and Mr Benjamin Chain (instructed by Messrs Lau Lin & Co) for the Respondent