NICHOLAS PAPPADIS AND ANOTHER v. CHAN SHING SHEUNG BARRY AND OTHERS

M.P. No. 2005 of 1988

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

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R U L I N G

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1. Much has been said by one Counsel or another. I am obliged, as requested by Mr Bunting, to make a ruling on the point that he has raised.

2. There are two orders made by two judges, one by de Basto, J. on the 8th September and another by Macdougall, J. some twenty days later on the 28th September.

3. Paragraph 1(b) of the Notice of Motion reads, in effect, as follows : The respondents be committed for alleged contempts in failing to cause a company, the H.K. Lotus Scientific Development Limited, "to comply with an order granted by The Honourable Mr Justice Macdougall on 28th September 1988 in High Court Action No. A6157 of 1988 in that the said H.K. Lotus Scientific Development Limited has failed to .....(b) deliver into the custody of the Registrar of the Court its share certificates in respect of its 50% shareholding in Everbright Lotus C.P.T. Manufacturing Limited".

4. It is the contention of Mr Bunting, Counsel for the respondents, that it would not be open to the applicant to rely on any matters other than those exclusively ordered in the said Order of Macdougall, J. Counsel leans heavily on the specific reference made to the Order of Macdougall, J. in the Notice of Motion.

5. Mr Graham, Counsel for the applicants, submits that the court should not shut its eyes realistically to the background against which the contempts complained of allegedly arose. Counsel emphasizes the very fact that it is the culpability of the respondents in the past, which had brought about the wilful non-compliance of the relevant provision in the Order of Macdougall, J. Counsel further submits that the Order of Macdougall, J. is part and parcel of the Order of de Basto, J. or at least it is tantamount to a continuation of that previous Order of de Basto, J. Hence, so Mr Graham's argument proceeds, silence on the Order of de Basteo, J. in the Notice of Motion would not bar or have the effect of barring the applicants from addressing this Court onthe respondents' conduct prior in time to the date of Mr Justice Macdougall's Order.

6. What has been and still is troubling this court is this : alleged acts of contempt should be stated in detail in the Notice of Motion as it must be so stated in the committal order, if made. See marginal references 52/1/3 and 52/4/3 at p.p. 776 & 783, 1988 White Book Vol. 1.

7. There would seem to be two obstacles in the way of Counsel for the applicants. Described in broad terms, one can be said to be a question of identity and the other, a question of timing.

8. As to the question of identity, the Notice of Motion must identify precisely what order is said to have been breached. There is much to be said in the theory of relating back as submitted by Mr Graham. But even if Mr Graham were correct in his contention, matters alleging contempts would have to be clearly and accurately set out in the Notice of Motion, well corroborated by the statement. That does not appear to be so in this case. The parties sought to be committed must know precisely what case they have to meet. They ought not be left to speculate what court order they are said to have inferentially infringed.

9. Turning next to the question of timing, if indeed the complaint stemmed from both orders, we would not know, in clear terms, either from the Notice of Motion or even from the explanation offered by Mr Graham whether the alledged breach or contempt is of one order or both, and if one, which one.

10. As it appears in the Notice of Motion, only Mr Justice Macdougall's Order was identified and the alleged contempts are stated to be in breach of that Order alone.

11. Even if the wording of the Notice of Motion were susceptible of the meaning sought to be placed on it by Mr Graham, the court would still be left with this timing problem as I have endeavoured to explain.

12. In the circumstances, Mr Bunting's anxiety is, I find, well founded, and I rule that the applicant should not be permitted on the Notice of Motion, as it now stands, to go beyond the Order of Macdougall, J.

13. As I understand him, Mr Graham would seek amendments if I ruled in favour of the respondents, which I have done in this ruling. Counsel has referred to a further matter set out in page 9 of the affirmation of Mr Chis Yip filed last Friday, relating to a letter of hypothecation connected with a sum of US dollars. The applicants wish to include that transaction as yet another contempt. I think it is permissible for Counsel for the respondents to reserve his position until the proposed amendments are formally formulated.