FAMEWAY INVESTMENT LTD v. LAI OI CHUN

HCMP 947/2019

[2020] HKCFI 2685

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 947 OF 2019

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DECISION

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The application

1.  This is the hearing of the Originating Summons dated 28 June 2019 (the “OS”) taken out by the plaintiff (“P”) for an order that the defendant (“D”) be committed for contempt of court for her alleged willful breach of the undertaking she together with other parties gave to the Court (“D’s Undertaking”) and encompassed in the Order of Anthony Chan J dated 28 February 2018 (the “Order of A Chan J”) in HCA 1377 of 2017 (“HCA 1377”).

HCA 1377, D’s Undertaking, and the Order of A Chan J

2.  Sum Tak Ki (“Ki”) passed away on 22 October 2016.

3.  D is the widow of Ki.

4.  At the time when he passed away, Ki was the registered co‑owner of the half interest in Lot 1099 in DD 17 (“Lot 1099”). The other half was registered in the name of Sum Tak Ming (“Ming”).

5.  Adjoining Lot 1099 is Lot 1103 in DD 17. P has since around November 2006 been the registered owner of Lot 1103.  It has since been sub‑divided into various sub‑lots.

6.  P claims to have a right of way (the “Right of Way”) from Lot 1103 over Lot 1099 to the main road.  The basis of the claim is certain oral agreements primarily with and through Ki and Ming.

7.  Dispute has arisen over the existence of that Right of Way.  P subsequently initiated HCA 1377.  Ming, the executrix of Ki and D are the 3 named defendants.

8.  On 23 June 2017, P took out an application by way of an inter partes summons under HCA 1377 for certain interim relief relating to the Right of Way.

9.  On 23 February 2018, P and all 3 defendants in HCA 1377 (hence including D) filed a consent summons, consequential upon which the Order of A Chan J was granted.  It reads, in so far as material for the present proceedings:

“ UPON the Defendants undertake (a) to continue to allow the passage of pedestrians and vehicles over the area coloured pink as identified in the Schedule of the Amended Statement of Claim for all present and/or subsequent owners, occupiers, tenants or visitors of Lot 1103, namely Units:

1) #120,

2) #121-G/F,

3) #121-2/F,

4) #122-G/F,

5) #122-2/F,

6) #125-G/F,

7) #125-2/F,

8) #126-G/F,

9) #126-2/F,

10) #127-G/F,

11) #127-2/F,

in return for a month payment of a lump sum of HK$8,000 for such of the aforementioned units to be paid to the Defendants’ Solicitors on the 28^th day of each month in advance until the determination of this Action and (b) to keep a proper record of all such sums received.

BY CONSENT IT IS ORDERED that:

1. The Summons filed herein on 23^rd June 2017 be withdrawn …”

10.  I on 19 June 2019 made an order varying D’s Undertaking.  The variation concerns only how the monthly payments are to be treated. D’s Undertaking otherwise has remained materially the same.

Leave to issue contempt proceedings  

11.  On 16 May and 24 May 2019, P filed its Statement and Supplemental Statement pursuant to Order 52 Rule 2(2) for leave to issue contempt proceedings against D for her alleged breach of D’s Undertaking.  The application for leave was supported by the 7^th and 8^th affirmations of Leung Kai Yin (“Mr Leung”, “Leung/7” and “Leung/8”).

12.  On 22 June 2019, Anthony Chan J granted P leave to commence contempt proceedings against D.

13.  On 28 June 2019, the OS was issued.

The hearing on 19 November 2019

14.  On 19 November 2019, the OS first came before me.  D acted in person.  Up till then, D had filed no evidence in reply.

15.  On that day, having heard parties, I decided to give D the chance to file evidence.  I ordered Leung/7 and Leung/8 be translated into Chinese, and that the Chinese version be served on D within 35 days. I gave D the liberty to file her evidence in reply within 21 days thereafter.

16.  Despite having been permitted to do so, D has filed no evidence in reply.

Approach in determining contempt

17.  As summarized at §52/1/16 of Hong Kong Civil Procedure 2020 Vol 1:

“ The proper approach to committal for civil contempt by reason of breach of a court order is a three stage test, namely, it is necessary to (1) construe the relevant court order to ascertain its meaning and operation (2) then determine whether the defendant has in fact complied with the order as so construed and (3) finally consider whether any failure to comply was accompanied by a state of mind necessary to establish punishable contempt …”

18.  As to the requisite state of mind necessary to support a finding of contempt, I refer to the summary at §52/1/17 of Hong Kong Civil Procedure 2020 Vol 1, that

“ … it is not necessary to prove that the alleged contemnor’s conduct was contumacious, i.e. that he directly intended to disobey the order: it is sufficient to prove (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 …”

19.  The onus of proving D’s contempt is on P.  The standard of proof is beyond reasonable doubt.

Construction of the Order of A Chan J

20.  I have set out above the Order of A Chan J.  I have considered the same.  In my view, what D has undertaken is on the face of that Order clear.  I have also considered the Schedule of the Amended Statement of Claim referred thereto.  The Right of Way has clearly been marked thereon, which leaves no doubt as to the scope of D’s obligation.

Whether D has breached D’s Undertaking

21.  I have considered Leung/7 and Leung/8.  I refer in particular to the photographs exhibited by Mr Leung.  They show that on various dates between late April and May 2019 as specified in Leung/7 and Leung/8, and amongst other acts, D placed wire netting across the Right of Way, erected the wire netting onto metal poles, put up a long metal bar resembling a bar gate horizontally across the Right of Way, arranged a container truck to try to put a container across the Right of Way in an attempt to block it up, caused blockage of the Right of Way by driving and leaving certain vehicles onto the same, and even arranged a loading claw crane to unload stone blocks of substantial sizes onto the Right of Way. 

22.  I am left with no doubt that D has breached D’s Undertaking.

Whether D’s acts were accompanied by the requisite state of mind

23.  There is no requirement to prove that D’s conduct was contumacious.

24.  D was represented when D’s Undertaking was given.  It was given by way of a Consent Summons.

25.  The core part of D’s Undertaking is not technical and is easy to understand.  It is in effect simply to continue to allow the Right of Way to be used by the designated parties. 

26.  The acts which in my view constituted breach are deliberate acts — erection of metal netting, long horizontal bar, and use (or attempted use) of a container and stone blocks to block up the Right of Way.

27.  Mr Yim for D submits that upon D acting in person on 17 January 2019, and upon D having received certain money that should have been stakeheld by her previous solicitors, D formed some sort of honest but mistaken belief that she would be entitled to receive further monthly payments, and that in the absence of such payments, she thought she could resort to “self‑help”.

28.  Evidence of any such alleged “honest mistaken belief” could only have been from D.  She has filed no evidence despite having afforded the opportunity to do so.

29.  In any event, I do not understand Mr Yim as seeking to put forward this proposition of “honest mistaken belief” as some sort of defence or justification for D’s conduct.  It cannot be.  D’s Undertaking cannot be discharged by any breach of any mutual undertaking by P (even assuming that there were any — see Grasberg Capital Asia Ltd v Huchun Joseph Yung, unrep, HCMP 727/2014, 8 May 2015, per Deputy Judge To at §§25‑26), and a fortiori, not by D’s mistaken belief in that regard, honest or otherwise. 

30.  The irresistible inference is that D was aware of the terms and effects of D’s Undertaking, and that her acts were not accidental.

Conclusion

31.  For the reasons set out above, I am left in no doubt that D is guilty of contempt.  In fact, in the course of the hearing, Mr Yim confirms that he is not seriously disputing that contempt can adequately be proved to the requisite standard.  He is in effect treating the hearing as one for mitigation.

Penalty

32.  I have been shown a number of authorities. Imprisonment for a deliberate breach of court order is often appropriate.

33.  In the present case, I however take into account two mitigating factors in D’s favour:

(a)  As revealed in the 9^th affirmation of Mr Leung, the filing of which I grant leave, following the hearing before me on 19 November 2019, D on or about 9 December 2019 caused a truck to remove the debris placed by her on the Right of Way, and that the Right of Way has been and has remained clear since then; and

(b)  D has tendered a written apology for her acts.

34.  Mr Chow for P is not pushing for any immediate term of imprisonment.  In my view, an immediate term of imprisonment is a sanction of the last resort, and is a disproportionate one in the circumstances of the present case.

35.  I have considered the option of imposing a suspended sentence.  However, in the present case, the Right of Way has remained clear for nearly 1 year.  Consistent with D’s apology, there is no indication that she might commit new breach of D’s Undertaking.  In my view, there is no need to resort to a suspended committal order to coerce continuous compliance.  I add however that any new breach by D will be treated most seriously by this Court, and D ought not harbour any illusion in that regard.

36.  On the question of fine, I have heard that she does not have a job.  She has been living off her savings, which have nearly been depleted as a result of the proceedings, leaving only about HK$100,000. She has been borrowing from her friends.  Although she has a daughter, they are not on good terms, primarily as a result of their different views on how the present set of proceedings should have been conducted.

37.  In the end, I am persuaded and have decided on the facts of this case to impose a fine of HK$5,000.  This should not be taken as any indication that this Court does not treat breach of undertakings seriously. This Court does.  But given the fact that the contempt has in effect been purged, that the Right of Way has been and has remained clear since December last year, the absence of any indication of further breach, and D’s humble means (and hence the fine is not an insubstantial one), I form the view that the imposition of the fine is an appropriate penalty.

38.  On costs, I order that D should bear the costs of the OS on an indemnity basis, to be taxed if not agreed. 

39.  The fine of HK$5,000 is to be paid within 14 days from the date hereof.