LEE KAM TAI v. CHAN KAM WAH

HCMP 198/2021

[2021] HKCFI 3496

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 198 OF 2021

______________________

______________________

______________________

_______________________

JUDGEMENT

_______________________

1.  Madam Lee was the wife of Mr Chan. They got married in 1969 and divorced in 1988. They have four children. By the originating summons dated 11 February 2021 (“the Originating Summons”), Madam Lee seeks an order for the committal of Mr Chan for his alleged breaches of an interlocutory injunction against him (“the Injunction”) in a High Court action under HCA 2841/2017 (“the Action”) on diver dates in December 2020.

2.  The Injunction was first granted on an ex-parte basis by DHCJ Mr Robert Pang SC on 8 December 2017 and was subsequently continued by the deputy judge on 15 December 2017 at an inter partes hearing.

3.  DHCJ MK Liu granted leave to Madam Lee to commence these committal proceedings on 9 February 2021.  Two days later, Madam Lee issued the Originating Summons.

4.  The Action was discontinued by consent in early January 2021 by way of a settlement before the issuance of the Originating Summons. In gist, Madam Lee and Mr Chan agreed that Mr Chan would transfer all his interest in certain landed properties to Madam Lee in exchange of a full and final settlement of the Action thereby discharging the Injunction. Despite the settlement, Madam Lee now accuses Mr Chan of having breached the Injunction during its currency.

5.  The Injunction consisted of two parts.  First, Mr Chan was injuncted from causing or permitting harassment, nuisance or intimidation to Madam Lee (“No Tort part”). The second part (“No Entry part”) is that Mr Chan was injuncted from entering, remaining at or coming within a distance of 30 metres from Madam Lee’s place of residence (“the Residence”) at 44-45 Ping Yeung North, Ta Ku Ling, New Territories, Hong Kong (“the Prohibited Area”).

6.  In the Statement dated 20 January 2021 (filed pursuant to O.52 r.2 of the Rules of the High Court), there are altogether 6 alleged breaches of the Injunction on the part of Mr Chan.  On the first day of the hearing, after the opening submissions of Mr Ng, together with Mr Lui, for Madam Lee, and reviewing the relevant documentary and video evidence in support of Madam Lee’s allegations, Mr Chan indicated that he would accept liability in regard to 5 of such breaches.  In other words, he accepts that he was in contempt of the Injunction.

7.  On the other hand, Madam Lee, in view of the admission of Mr Chan, agrees to abandon her allegation of the remaining breach.  The respective positions of the parties are recorded in a document signed by the parties.  

8.  The breaches admitted by Mr Chan in the Statement are as follows. 

9.  First, on 1 December 2020, at around 5.48 p.m., Mr Chan and two of his servants entered, remained at or came within a distance of 30 metres from the Residence. One of his servants took photographs by her phone outside the Residence in a suspicious manner. 

10.  Second, on 14 December 2020, at around 4.32 p.m., Mr Chan again entered and remained at the Prohibited Area, harassed and intimidated Madam Lee and scolded her and another person with foul language. Madam Lee felt offended, insulted and intimidated.  She alleged that she felt distress and anxiety as a result.

11.  Third, on 24 December 2020, at about 5.36 p.m., Mr Chan entered and remained at the Prohibited Area again with his two servants.  Upon the instructions of Mr Chan, one of his servants tore down a copy of the Injunction and a warning notice issued by the solicitors of Madam Lee. These documents were posted on one of the gates of the Residence.  Mr Chan then threw the Injunction and the warning notice in the air in a dismissive manner causing the documents to scatter all over the ground.  Further, another servant of Mr Chan took photos of the outside of the Residence with her phone in a suspicious manner. 

12.  Fourth, on 27 December 2020, at about 5.14 pm, Mr Chan again entered and remained at the Prohibited Area.  One of his servants again took photographs of the Residence with her phone in a suspicious manner upon his instruction.

13.  Lastly, on 28 December 2020, at about 5.47 p.m., Mr Chan again entered and remained at the Prohibited Area with his servants.

14.  Upon the admission by Mr Chan, his contempt of court in breaching the Injunction is established.  Contempt of civil court orders is a serious matter as highlighted by the court from time to time. 

15.  A prime consideration of the court in sentencing contempt is to signal the importance of demonstrating to litigants that orders of the court are to be obeyed. The jurisdiction of the court in contempt proceedings arises out of its inherent jurisdiction to enforce its own orders.  The purpose of the law of contempt is not to protect the dignity of judges, but to prevent interference with the due administration of justice; see La Dolce Vita Fine Dining Co Ltd v Zhang Lan [2019] 2 HKLRD 341 per Mimmie Chan J at §8.

16.  A person in breach of an injunction order knowingly should expect a custodial sentence and the normal penalty for breaches of injunction orders is imprisonment measured in months as highlighted to me by Mr Ng, see also La Dolce Vita Fine Dining Co Ltd at §15.

17.  The sentencing principles relating to civil contempt are well established.  I find the succinct summary in the judgment of Queenie Au-Yeung J in Arboit v Koo Sui Ying (No. 2) [2016] 3 HKLRD 154 of particular relevance and assistance. 

18.  At §§7 and 8, the judge set out the relevant factors which should be taken into account in the following terms:

“The court will consider if there are:

(a) aggravating factors;

(b) mitigating factors; and

(c) any acts to purge the contempt, ie., acts to atone for a contempt, eradicate it or cleanse it of its previous ill-effect which, in the case of a mandatory order, may be fulfilled if the contemnor thereupon does the act or causes it to be done.”

19.  And:

“Relevant factors (which are not exhaustive) include:

(a) the nature of the order and breach in question, and the extent of the breach;

(b) whether the contempt was contumacious or unintentional, the reasons, motives and state of mind;

(c) whether the claimant has been prejudiced by virtue of the contempt and whether the prejudice is capable of remedy;

(d) whether the contemnor appreciates the seriousness of the deliberate breach;

(e) whether the contemnor has cooperated.”

20.  Guided by these principles, I have studied with care the evidence relating to the 5 admitted breaches. There are, indeed, aggravating factors.

21.  To begin with, Mr Chan had all along been legally represented and he only acted in person shortly before the hearing.  There is no question about his knowledge of the terms and effect of the Injunction.  

22.  On 16 December 2020, Madam Lee’s solicitors did by way of a letter complain about the breaches and Mr Chan was expressly warned about the possibility of the committal proceedings.  The dire consequence of imprisonment was highlighted to Mr Chan in this letter.  Regrettably, Mr Chan persisted in the breaches despite the clear and unequivocal warning. Now, Mr Chan could only repeatedly tell this court that he was foolish at that time.

23.  Then I turn to the evidence of the admitted breaches.  Most of the breaches of the No Entry part were borne out by video evidence.  Such video recordings were produced by the candid cameras or CCTV installed by Madam Lee at the Residence.

24.  From all such video recordings, it can be seen that Mr Chan, for all the breaches except the 2^nd breach, did not stay within the Prohibited Area for long.  I accept Mr Chan’s explanation that he did not know that Madam Lee would find out that he had been there in breach of the No Entry part. He only stayed there for one or two minutes at most and during his stay, he did not exhibit any violent conduct.  All along he was seated in his wheelchair pushed by his servants.  I could discern no sinister motive.

25.  Mr Chan could not possibly intend to harass or intimidate Madam Lee, nor could he intend to cause nuisance to her during those visits.  Though he was in breach of the No Entry part, I could not find any breach of the No Tort part.

26.  For the 2^nd breach, the police was involved and Madam Lee alleged to have been intimidated or verbally abused by Mr Chan, thereby she suffered distress and anxiety.  Mr Chan explained to this court that he was merely concerned about the safety of his property, of which he then was the registered owner, having observed that there were strangers staying there.

27.  His explanation was supported by a police report.  The police issued a letter dated 19 April 2021 setting out the investigation undertaken by them in relation to the 2^nd breach on that day.  Indeed, it was Mr Chan who made a report to the police complaining about the entry of four unknown persons into his property without his permission.

28.  On that occasion, Madam Lee showed the Injunction order to the police and complained about Mr Chan’s breach of the No Entry part of the Injunction. The police concluded that there was no such breach, and the police found nothing suspicious and closed the case.

29.  It is noteworthy that Madam Lee did not complain to the police about having been intimidated or verbally abused by Mr Chan on that occasion.

30.  Whilst I accept that Mr Chan was in breach of the No Entry part, I am far from convinced that he had actually intimidated Madam Lee with his foul language and was in breach of the No Tort part.  

31.  I opine that Mr Chan’s mere use of foul language in the heat of the moment, if any, could not amount to intimidation and harassment.  Apart from the mere assertion in the Statement, Madam Lee failed to provide further details in regard to the 2^nd breach in her supporting affirmation. Though I am aware that Mr Chan admitted the 2^nd breach and the related allegations in the Statement, I still have to scrutinize the evidence and assess the gravity of those allegations. I am not convinced that Mr Chan breached the Injunction maliciously and Madam Lee suffered significant prejudice.

32.  For the 3^rd breach, the entire incident was recorded by the CCTV and I have studied the video recording.  In the first place, as shown by a photo produced by Madam Lee, two documents were affixed to one of the gates by plastic ties. 

33.  On the top, there was a warning written in the Chinese language and the three Chinese characters, “禁制令”, were printed conspicuously.  The document posted thereunder is a copy of the Injunction order printed in English with the stamp of the court.

34.  One of the servants of Mr Chan took these documents down from the gate and handed them to Mr Chan.  No sooner had she handed to him the documents than Mr Chan threw them away onto the ground.  From the video recording I could see that the copy of the Injunction order was thrown onto the ground. 

35.  Mr Ng highlighted to me that this conduct showed the disdain of the court order by Mr Chan. He submits that this is an aggravating factor.  I could not be certain that Mr Chan was aware of the nature of the document by the mere glance of its front page. I could observe that he was without his glasses.  I accept Mr Chan’s explanation that he did not know that it was a court order at that time. In any event, he did it merely on the spur of the moment and he did not really intend to treat the document with disdain or disrespect.

36.  For the remaining two breaches, no doubt Mr Chan was in breach of the No Entry part. Mr Chan could not satisfactorily explain why he appeared in the Prohibited Area on those two occasions.  In any event, he stayed there very briefly without any overt offensive behaviour.

37.  I can conclude that Mr Chan was in cynical disregard of the Injunction. He simply ignored the Injunction. That said, the breaches are not very serious and malicious and there was no real harm caused to Madam Lee in my view.

38.  On the other hand, Mr Chan expressed his remorse for the breaches.  He apologized to this court.  To show the sincerity of his remorse, he undertakes not to contact Madam Lee by any means without her permission and he undertakes not to go anywhere near the gates of the Residence, and to be exact, he undertakes not to enter the area within 10 metres from each of the gates of the Residence.

39.  I have explained the legal implications of these undertakings and any breach of such undertakings may lead to another set of contempt proceedings. He understands that a custodial sentence would be inevitable in the event of any breach of such undertakings.  He confirms his understanding and agrees to give such undertakings.

40.  Now I consider his personal circumstances. Mr Chan is presently 73 years old.  He produced a letter dated 8 November 2021 issued by Dr Ho who has taken care of him since March 2018. He told this court that he had seen Dr Ho during the adjournment. In the letter, Dr Ho said that Mr Chan has kidney failure, severe diabetes, hypertension, and he had his hips replaced in 2019.  He is immobile and requires his helpers for lifting his wheelchair.   On the whole, the health condition of Mr Chan is unsatisfactory.

41.  Mr Chan has been sternly warned by this court that he is very close to the prison gate by reason of his breaches.  He should have learned a hard lesson.  Weighing all the relevant factors, I believe a custodial sentence of 1 month is warranted. After all, Mr Chan committed repeatedly breaches of the Injunction within a short period of time.

42.  However, taking into account the circumstances of the present case including his personal circumstances, this court finds that there are good grounds for a suspension of the custodial sentence and I believe 12 months is the appropriate period. Therefore, Mr Chan’s 1-month imprisonment should be suspended for 12 months.

43.  I have explained to Mr Chan the implication of a suspended sentence and Mr Chan confirms his understanding.And I also make it clear to him that the sentence is passed on the basis of his undertakings given to the court.

44.  I further order that costs of and occasioned by these legal proceedings relating to the Originating Summons must be paid by Mr Chan to Madam Lee on an indemnity basis.[1]

45.  This Judgment was delivered orally in court. With the assistance of a court interpreter, Mr Chan, who knows punti only, comprehended its full contents and confirmed his understanding. Should Mr Chan require assistance upon receipt of this Judgment, this court could make arrangement for him so that a court interpreter could explain to him this Judgment once again.

46.  Lastly, I thank Mr Ng and Mr Lui for their assistance in this matter.