SHUCHI SINGH v. ANAMIKA CHHAWAL AND ANOTHER

HCMP 2410/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLLANEOUS PROCEEDINGS NO. 2410 OF 2014

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JUDGMENT

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Introduction

1. In the libel action under HCA 728/ 2013 (“the Action”), DHCJ Leung granted the application of Madam Singh for two interlocutory injunctions against Madam Chhawal and Sanjay Tolani (“Tolani”) by his Decision handed down on 15 October 2013 (“the Decision”) resulting in the Order of the same date (“the Order”). This is the application of Madam Singh by her Originating Summons dated 26 September 2014 for an order of committal against both Madam Chhawal and Tolani by reason of their non-compliance of the Order. Madam Chhawal and Tolani deny any knowing breach of the Order and they contend in any event they have complied with the Order already.

2. The background facts are set out in the Decision and I shall not make full repetition here. For the purpose of this Judgment, the following summary should suffice. On 27 April 2013, allegedly an unknown male (“the Unknown Man”) misbehaved and even assaulted a woman who was a personal friend of Madam Chhawal at a club in Central (“the Alleged Assault”). At that time, Madam Chhawal and Tolani were working at the club for their company Rezonance Private Limited, the 3^rd defendant in the Action.  Madam Singh was present with other members of the Indian Dragon Boat Team, of which she was one of the co-organizers. Madam Chhawal and Tolani firmly believed that the Unknown Man was a member of the team and a friend of Madam Singh.

3. The Unknown Man fled after the Alleged Assault and Madam Chhawal and Tolani were very unhappy about this and decided to take legal action. They first demanded Madam Singh to disclose the identity of the Unknown Man but in vain. Frustrated, Madam Chhawal published her account of the Alleged Assault on her facebook page and demanded Madam Singh not to conceal the identity of the Unknown Man any more.

4. Madam Singh took this matter seriously and she instructed her solicitors, Hart Giles, to deal with this matter. Hart Giles on behalf of Madam Singh demanded Madam Chhawal and Tolani to cease publication of defamatory statements about Madam Singh.

5. Even more frustrated, Madam Chhawal and Tolani continued to post statements critical of the conducts of Madam Singh and Hart Giles on their facebook pages. Hence the Writ was issued on 30 April 2013 together with her summons for interlocutory injunctions.

6. After the Writ was issued, Madam Singh went to the police station with her legal representatives to assist investigation on 2 May 2013 after Madam Chhawal lodged a formal complaint to the police. Apparently the investigation yielded no result and the Unknown Man is still at large.

7. Madam Chhawal continued to post on her facebook pages some statements relating to this incident which have become the subject matters of these proceedings.

The Order

8. By the Order, the Deputy Judge ordered that, among other things, until the trial of the Action or further order of the court:

   (a)  Madam Chhawal and Tolani, whether by themselves, their servants or agents or otherwise, be restrained from publishing any means the defamatory statements contained in Annexures 27, 28 and 29 to the Statement of Claim filed on 4 June 2013 (“the Three Annexures”), or words to the effect that Madam Singh has committed a crime or Madam Singh has lied in her statement to the police (“Publication Injunction”);

   (b)  Madam Chhawal and Tolani, whether by themselves, their servants or agents or otherwise, do forthwith remove or cause to be removed the defamatory statements contained in Annexures 27, 28 and 29 to the Statement of Claim filed on 4 June 2013 from their respective pages on www.facebook.com (“Removal Injunction”).

9. Madam Singh now complains that Madam Chhawal failed to comply with both the Publication Injunction primarily by her subsequent postings on her facebook pages and did not act in accordance with the Removal Injunction. For Tolani, Madam Singh’s complaint is that he failed to remove the offending post containing Annexure 28.

10. This court granted leave to apply for an order of committal upon Madam Singh’s ex-parte application on 17 September 2014. A Statement dated 29 July 2014 and Madam Singh’s verifying affirmation have been duly filed and personally served on Madam Chhawal and Tolani. Both Madam Chhawal and Tolani have filed evidence in opposition to this application.

Personal service of the Order

11. Order 45 rule 7(2) of the Rules of the High Court requires personal service of an order to be enforced by way of committal. Rule 7(7) empowers the court to dispense with service of a copy of an order if it thinks it just to do so.

12. There is no dispute that the Order, endorsed with an appropriate penal notice was personally served on Madam Chhawal and Tolani on 17 July 2014 separately after a long delay.

13. Instead of giving an explanation for the delay, Madam Singh contends that personal service of the Order is unnecessary. In the Statement, Madam Singh relies on several grounds for her contention. Mr Kim, counsel for Madam Singh, is reasonable enough to rely on a hearing held on 2 May 2014 before the Deputy Judge (“the Hearing”) only.

14. At the Hearing, Madam Singh made an application for default judgment without success and both Madam Chhawal and Tolani were present. There, Madam Singh, quite unnecessarily, also made allegations of the breaches of the Order by Madam Chhawal and Tolani in her supporting affirmation dated 3 April 2014 (“the Supporting Affirmation”). Madam Singh now contends that at the Hearing the Deputy Judge warned them against any breaches and advised them that they should comply with the Order as soon as possible and so both of them must be aware of the terms of the Order and the legal consequence of any breach of the Order on their part.

15. The audio-recording of the relevant part of the Hearing was played on the first day of the hearing of this application so as to eliminate any dispute about what the Deputy Judge had exactly told Madam Chhawal and Tolani. The Deputy Judge took the opportunity to advise Madam Chhawal and Tolani that it was open to Madam Singh to commence committal proceedings to prove her allegations of their breaches of the Order. Though the Deputy Judge did not spell out the precise terms of the Order, he referred to the publication on their  facebook pages and he was satisfied by reading the Supporting Affirmation that Madam Chhawal and Tolani were aware of the allegations of the breaches. The Deputy Judge urged them to consider rectifying such breaches if actually committed and further warned them that imprisonment and fine were the usual sentencing options if contempt was proved against them. For ease of reference, the transcripts of the relevant part of the Hearing have been obtained and made available to the parties.

16. I too read the Supporting Affirmation and it mentioned about the Order with reference to the Three Annexures, which were allegedly defamatory in nature. Madam Singh claimed that despite the Order, Madam Chhawal and Tolani continued to publish such defamatory statements on their respective facebook pages. Copies of such facebook pages were exhibited to the Supporting Affirmation.

17. In the circumstances, I accept the submission of Mr Kim that it is beyond reasonable doubt that Madam Chhawal and Tolani must be aware of the Order and the consequence of any breach of the same after the Hearing despite the fact that the Order was only personally served on them in July 2014.

18. Mr Kim fairly indicates that Madam Singh does not rely on any allegation of breach of the Order committed prior to the Hearing.

Applicable Principles

19. Before my evaluation of the evidence in support of Madam Singh’s allegations of breaches of the Order, I should first set out the applicable principles though not in dispute.

20. The law is settled in this kind of applications and I only need to refer to the following dictum of Ma J (as the Chief Justice then was) in Citybase Property Management Ltd v Kam Kyun Tak & Ors (No.1) [2003] 2 HKC 98 at §§16-17:

“16. Given the seriousness of a finding of contempt (and the consequences of such a finding), the first stage requires the court to be satisfied beyond reasonable doubt before a finding of contempt can be made even in cases of civil contempt : Re Bramblevale Ltd [1970] Ch 128, at 137A‑B; Dean v. Dean [1987] 1 FLR 517, at 521; Hong Kong Civil Procedure 2002 at paragraph 52/1/16; Arlidge, Eady and De Smith on Contempt (2^nd Edn) at paragraphs 12‑37 to 12‑42.

17. Having said that the standard of proof is the criminal one (i.e. beyond reasonable doubt), I should however point out what may possibly regarded as anomalies in this type of proceedings:

(1)… It is to be borne in mind that in contempt proceedings, there is no burden on the respondent to prove his innocence : see Concorde Construction Co. Ltd v. Colgan Co. Ltd (No.2) [1984] HKC 253, at 257.

(2)  Unlike in criminal proceedings, where mens rea has to be demonstrated, there is no requirement in civil contempt proceedings to show that the alleged contemnor intended to disobey the order (i.e. his conduct was contumacious).  It is sufficient to proof (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 : see the cases referred to in Hong Kong Civil Procedure 2002 at paragraph 52/1/6.  Of course, the alleged contemnor should be aware of the order and the consequences of breaching it : see paragraphs 14(1) and (2) above.”

 Alleged Breaches

21. In the Statement, Madam Singh puts forth seven breaches for the purpose of this application. Bearing in mind the foregoing principles, I now turn to each of the seven alleged breaches to find out whether the Order has been breached by Madam Chhawal and/or Tolani and whether a contempt has occurred.

The First Three Alleged Breaches

22. The first three complaints are actually based on the same factual allegation. The first two complaints arise from the fact that Madam Chhawal and Tolani have failed to comply with the Removal Injunction and hence the Three Annexures have remained to be published on their respective facebook pages thereby in breach of the Publication Injunction at all. The third complaint is that Madam Chhawal and Tolani continued the breach of the Publication Injunction and the Removal Injunction despite the “judicial warning” of the Deputy Judge at the Hearing.  I cannot accept that the third complaint can stand alone as a separate contempt even if the factual allegation is proved.

23. About the first two complaints, Madam Singh first refers to the exhibits to her 4^th Affirmation dated 3 April 2014 to prove the breach of the Order by Madam Chhawal and Tolani. As explained above, the alleged breach took place before the Hearing and so I refuse to take into account this allegation.

24. Next Madam Singh relies on the computer printouts from the respective facebook pages of Madam Chhawal and Tolani obtained on 29 July 2014 by way of screenshot. They are exhibited as “SS-22” to her 5^th affirmation.

25. I studied each pages of the exhibits carefully and I have come to the following factual conclusions (as at 29 July 2014):

   (1)  Madam Chhawal failed to remove the cartoon drawing appearing in Annexure 27 from her facebook page and so it remained to be published. Both the Publication and the Removal Injunctions were breached.

   (2)  Madam Chhawal failed to remove the post appearing in Annexure 28 from her facebook page and so it remained to be published. Both the Publication and the Removal Injunctions were breached. To give more details about the post, it consisted of the same cartoon drawing appearing in Annexure 27 and Madam Chhawal shared the cartoon drawing with her friend named Minaz Bhat. She added a caption to the cartoon drawing and tagged the same to, among other persons, Tolani. Therefore, the post also appeared on Tolani’s facebook page.

   (3)  The post remained on Tolani’s facebook page as at 29 July 2014. Apparently, he did not comply with both the Publication and the Removal Injunctions in respect of Annexure 28.

   (4)  The post appearing in Annexure 29 remained to be published on the facebook page of Madam Chhawal including the offensive part – Madam Singh lied in her statement made to the police about the Unknown Man. Madam Chhawal failed to remove this post and so she did not comply with both the Publication and the Removal Injunctions in respect of Annexure 29.   

26. There is no evidence that prior to 29 July 2014 Madam Chhawal had done anything at all to remove the Three Annexures from her facebook pages. The Three Annexures would not possibly disappear by her inaction. I conclude that she knew that the Three Annexures remained on her facebook pages as at 29 July 2014.

27. In her affirmation dated 19 November 2014, Madam Chhawal confirmed that after the call-over hearing in this court on 30 October 2014, she as advised took legal advice and immediately removed the Three Annexures from her facebook pages. There is no contrary evidence.

28. Therefore, on the basis of the foregoing findings of fact, beyond reasonable doubt I can conclude that Madam Chhawal was in breach of the Order by allowing the Three Annexures to be published on her facebook pages even after the Hearing. I find her guilty of having committed a civil contempt.

29. Tolani is in a different position. His role was passive. Annexure 28 came to appear on his facebook page merely because he was tagged by Madam Chhawal. It remained on his facebook page until Madam Chhawal removed it from her own facebook page. Tolani explained in his evidence that he could do nothing to remove Annexure 28 and so he relied on Madam Chhawal to remove this offensive post for him.

30. Mr Kim does not agree with this explanation. I am skeptical about it too but the fact remains that his explanation is not contradicted by any contrary evidence. There is no evidence to show how Tolani himself could have removed the offensive post from his facebook page after the Hearing. I refrain from doing any experiment on facebook pages myself and in any event the operation rules of facebook can change from time to time. 

31. That said, even if I accept Tolani’s explanation, it only means that he should use his best endeavour to cause Madam Chhawal to remove Annexure 28 from his facebook page. He should have taken the Order seriously especially after being warned by the Deputy Judge in no uncertain terms at the Hearing. There is no evidence that he has ever made any effort to ensure that Madam Chhawal would cause Annexure 28 to disappear from his facebook page. Nor is there any evidence that he made any enquiries with Madam Chhawal to check her progress in complying with the Order.

32. In the absence of any such effort, I cannot accept that Tolani honestly believed that Madam Chhawal had already done so and hence he already complied with the Order. I hold that he knew that Annexure 28 still remained intact on his facebook page. This is a breach of both the Publication and the Removal Injunctions. This court is satisfied beyond reasonable doubt that he is guilty of a civil contempt.

The Fourth Alleged Breach

33. The fourth complaint is about Madam Chhawal only and it arises from a passage in the affirmation of Madam Chhawal dated 15 May 2014. It read,

“High Court putting such restraining order on me is just violation of my rights & shows Hong Kong law on rights for women under poor light. If court can set a clear guideline of what could be said or referred if I find it reasonable enough I will surely follow them.”

34. Mr Kim submits that by this statement in her affirmation, Madam Chhawal expressed a clear refusal to comply with the Order and hence a civil contempt can be found. I cannot agree with this submission.

35. To start with, on a fair reading of the passage quoted above, I do not see it as an unequivocal indication that Madam Chhawal refused to abide by the Order. She merely expressed her view that the Order amounted to a violation of her rights in the beginning. She went on to say that if the court gives her a clear guideline which she accepts to be reasonable she would abide by it. It cannot mean and it certainly cannot be beyond reasonable doubt that she will not abide by this interlocutory order.

36. Even if it were such an indication that she refused to comply with the Order, this alone, in my view, cannot amount to a breach of the Order. It is her conduct rather than her verbal indication that matters. I have asked for an authority to support the proposition that a verbal indication to refuse to disobey an order can be equated with a breach of the order. Mr Kim is unable to provide this court with such an authority.

37. In the premises, I am not satisfied that this complaint is made out.

The Fifth and Sixth Alleged Breaches

38. These two alleged breaches are targeted at Madam Chhawal only and they arise from the two posts of Madam Chhawal on her facebook pages created on the same day, viz, 5 June 2014.

39. The first post reads as follows:

“For now reading blatant lies submission by the banker bunch. For the people who knew them & have chosen to yet keep their mouth shut, hope its not your own who experiences something like this someday.”

40. It is the case of Madam Singh that the inference to be drawn from this post is that she lied to the police. It follows that Madam Chhawal breached the Publication Injunction by this post.

41. The second post seems to be a comment made under the first post and was made in response to an earlier comment made by Madam Chhawal’s facebook friend. It reads as follows:

“It (has) all been manipulated & no video footage has been received. Every visit to the police station all we hear is NO NO NO NO that's. Lead is with that woman & she is suppose (sic) reveal his identity but again NO police did some lame interrogation where she can answer as per your convenience.”

42. Again, it is the case of Madam Singh that this court can draw the inference from this post that she lied to the police. She claims that it is a breach of the Publication Injunction by this post.

43. As regards the first post, there is no affirmation evidence to explain to me that Madam Chhawal had previously stated that Madam Singh was included in the banker bunch. In the Statement, Madam Singh was described as a businesswoman in the apparel and fashion industry. I cannot possibly find that Madam Singh is known to be in the banking business and so an ordinary reader of the post knows that the banker bunch referred to by Madam Chhawal must include Madam Singh.

44. Mr Kim tells this court that the husband of Madam Chhawal in fact is a banker. Be that as it may, at best it means that the post referred to Madam Singh’s husband and not her and it does not seem to be a case of reference by association. The post, in the circumstances, cannot be said to be defamatory of her in that she lied to the police.

45. In any event, it must be arguable that no reference was ever made to Madam Singh in this post and so it cannot be defamatory of Madam Singh. I cannot be satisfied beyond reasonable doubt that it was in breach of the Publication Injunction as a result.

46. The second post has the same problem. It was posted in answer to an earlier post of Triston Negreaux which raised the questions as to why the police could not find the culprit and whether there was any video footage.

47. In the second post, Madam Chhawal only said that in every visit to the police station made by her, she could only hear negative answers. To a reasonable reader, the provider of such negative answers should be the police rather than any individuals. It is certainly not a strong let alone irresistible inference to be drawn that Madam Chhawal alleged that Madam Singh had lied to the police.

48. Furthermore, for the latter part of the second post, I do not find it beyond reasonable doubt that sufficient reference to Madam Singh was made and that it is in its natural and ordinary meaning defamatory in nature.

49. All in all, whether sufficient reference to Madam Singh was made and whether the statements contained are defamatory in both posts are very much live issues in the Action. I cannot accept that a civil contempt by reason of the two posts is proved beyond reasonable doubt.

The Seventh Alleged Breach

50. The last alleged breach relates to a post on the facebook page of Madam Chhawal on 22 July 2014. There, Madam Chhawal shared a link relating to an assault case in India. She added the following comments:

“Hong Kong Indians if you still question my action against those Indian Bankers & Dragon Heart Indian Team, I do not want this Dirt to exist in India or carry such dirty act & coward mentality outside India. Mr Giles don't worry I am returning back to Hong Kong soon to give you Nightmare as a Lawyer for managing such social criminals.”

51. There is an averment in the Statement that the inference can be drawn from the above comments is that Madam Singh has committed a crime.

52. Mr Kim draws my attention to the fact that in previous posts of Madam Chhawal, Madam Singh was already associated with the Indian Dragon Boat Team and in Annexures 27 and 28, Mr Giles was portrayed as the lawyer acting for criminals. Therefore, putting two and two together, Mr Kim submits that the social criminals referred to in this post must include Madam Singh. There is much force in this submission.

53. Of course a claimant need not be referred to by name and where the claimant is referred to in an indirect way or by implication it will be a question of degree how far evidence will be required to connect the libel with him. It is not enough that the recipients of the statement did understand it to refer to the claimant: the issue is whether the reasonable people with their knowledge would so understand it: Gatley on Libel, 12^th Edn. §7.3 at p.267.

54. Adopting this test, on the evidence before me, I am still not satisfied beyond reasonable doubt that Madam Singh was sufficiently identified to those reasonable people with their knowledge of the extraneous facts contained in Madam Chhawal’s earlier posts. I do not find that the complaint of contempt arising from this post of Madam Chhawal has been proved to the requisite standard.

55. For completeness, during her testimony, Madam Chhawal expressly agrees to remove the three posts, which are the subject matters of the fifth, sixth and seventh alleged breaches from her facebook pages on a without prejudice basis.

Conclusion on Liability

56. I find that Madam Chhawal knowingly failed to remove from her facebook pages the Three Annexures until November 2014and hence caused the same to be published thereon until their removal. She was in breach of both the Publication and the Removal Injunctions.  She is proved to have committed a civil contempt. All other complaints of contempt are not substantiated.

57. As regards Tolani,  I find the sole complaint against him to have been proved beyond reasonable doubt. He failed to cause to be removed from his facebook page Annexure 28 and hence the same continued to be published until November 2014. I find him guilty of having committed a civil contempt.

58. Given these conclusions, I shall deal with the question of punishment. I should now hear the parties on this question. I shall also deal with costs together with my decision on sanctions.