JEANNY HELENA FRANSLAY v. FUNG ARIEL MEI SHAN

HCMP 1614/2019

[2021] HKCFI 686

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1614 OF 2019

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BETWEEN

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S E N T E N C E

F O R   C O N T E M P T

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1.  The defendant having been found guilty of contempt of court on two counts as set out in my judgment of 29 January 2021,[1] I have heard the parties this morning on the appropriate sentence to be imposed.

2.  The general principles on sentencing for contempt are well established, as set out in the cases cited to me, including Arboit v Koo Siu Ying (No. 2) [2016] 3 HKLRD 154; Secretary for Justice v Yuen Oi Yee Lisa [2011] 1 HKC 346; Secretary for Justice v Chan Oi Yau Riyo [2020] 3 HKLRD 494, and need not be repeated here.

3.  In my judgment finding contempt, I have essentially found that the defendant, with knowledge of the order of Master Kot dated 23 April 2019 requiring her to attend an oral examination on 20 May 2019, failed to do so, and that, with knowledge of that order and the subsequent order of Master J Wong dated 20 May 2019 adjourning the examination to 10 June 2019, failed again to attend the examination at the adjourned hearing.  It is therefore a case of wilful failure to comply with court orders.  Further, in coming to that conclusion, I had rejected the central parts of the evidence of the defendant and her husband as being incredible. 

4.  The primary consideration in sentencing for civil contempt, it has been said, is to demonstrate to litigants that the orders of the courts are to be obeyed.  It bears emphasising that this is fundamental to the rule of law and is the building blocks by which the administration of justice is made workable, as pointed out by Coleman J in Secretary for Justice v Chan Oi Yau Riyo at §§57-58.  This underlies the approach of the court that, even though imprisonment is regarded as a sanction of last resort, “a sentence of imprisonment for a wilful failure to observe a court order can often be appropriate”: Excel Noble Development Ltd v Wah Nam Group Ltd [2001] 4 HKC 148, 162; Citybase Property Management Ltd v Kam Kyun Tak & others (No. 2) [2003] 2 HKC 108, §10.

5.  The order for examination was made against the defendant as a former director of Bel Trade Investment Holdings Ltd (“Bel Trade”), one of the judgment debtors in Hong Kong based on an arbitral award made in Singapore.  It is part of the recovery exercise that the plaintiff had regrettably had to undertake in order to obtain satisfaction of the award that she had obtained against Stephen Sy, Anita Hung, Sandy Sy and Bel Trade.  The defendant’s failure to comply with the order had the effect of delaying and obstructing the plaintiff’s pursuit of those judgment debtors who are closely related to her.  Her examination, which should have taken place in May and June 2019, is only now being conducted.  This is a serious matter with real consequences.

6.  I take note that the defendant has since around early 2020 agreed to fix a date for the oral examination and has recently attended her first examination hearing before Master A N Tse Ching on 3 March 2021, although the examination, which had commenced, was adjourned to 6 May 2021 pending steps for the defendant to try to locate documents and information relating to Bel Trade.  The purpose of the examination is to elicit from her information and books and documents in her possession or power relating to Bel Trade’s assets and liabilities.  As such I do not think it can be said that she has already fully purged her contempt, but there is a prospect that she will have done so in due course to the extent possible.

7.  The defendant has also filed an affidavit expressing her recognition that she has done a serious wrong, her remorse and her apologies to the court.  She has also produced references in her support to the effect that she is generally of good character.  She has also rendered services to her church and for a number of years in her children’s school.

8.  The defendant is now 39 years old.  She has worked before for around 4 years but has since shortly after her marriage in 2008 ceased working outside.  She has 3 children, aged 5, 9 and 10 respectively, with whom she has a very close relationship.  It has been stressed on her behalf that an immediate custodial sentence would have traumatic effects on the children.  This is something I take into account but I do not give it the overriding weight that has been urged on me.  While her care and attention for them is important, it is also imperative that the defendant demonstrate to her children that one has to take responsibilities for one’s wrongdoing.

9.  Taking into consideration everything that has been said by Mr Shieh on her behalf, I consider that the appropriate sentence is 2 months’ imprisonment for each count of contempt, to be served concurrently, but I direct that the execution of the order of committal be suspended for 1 year, ie until (and including) 11 March 2022, unless within the specified period the defendant commits any breach of any order in HCCT 38/2018 for oral examination or production of documents, whereupon the plaintiff may apply to this court within the specified period for an order that the suspension be lifted.  This is something that I hope the defendant will strive to avoid, by fully complying with her obligations under the orders of the court to the best of her ability.

10.  As for costs, the defendant does not oppose an order for indemnity costs, which is the usual order where contempt is established.  I therefore make an order that the defendant do pay the plaintiff the costs of these proceedings, to be taxed on the indemnity basis if not agreed, with a certificate for two counsel.