FONG KUN SHENG RAYMOND v. FONG CHIU LUN

HCA484/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.484 OF 2005

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J U D G M E N T

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1. I have before me the defendant Fong Chiu Lun, also known as Fong Ki, also known as Fong Biu, who is the subject of the contempt proceedings brought by his son Raymond Fong Kun Sheng, the plaintiff herein, as a result of the alleged breach of the injunction order by the defendant on 23 March 2005.

2. By my judgement of 30 May, I held that the defendant was in civil contempt for having breached the order of 18 March and I ordered that the warrant of arrest be issued.  I also ordered that the question of the punishment of the defendant for contempt to be deferred and I would like to hear the evidence, both from the son as well as from the father, as to the circumstances of the alleged breach of the order, so that I could then consider the appropriate punishment. 

3. Although the order was made on 30 May 2005, the minute of the order was not passed to my clerk nor was a draft of the warrant given to my clerk.  So the formal order had not been drawn up nor was there any formal issue of the warrant of arrest.

4. The Hong Kong newspaper, however, very quickly picked up what happened on 30 May and the proceedings of 30 May was widely reported in the Hong Kong Chinese newspapers.  The defendant’s father who is close to 80 read the newspaper report and yesterday afternoon contacted my clerk and asked to see the court.  Arrangement therefore was made yesterday afternoon for the father and the son’s solicitors or barrister to appear before me today at one o’clock.  And this is what has happened.

5. At today’s hearing, three things happened :

(1)	The first thing is that the son’s lawyers had indicated to the court that the son did not wish to see the father actually in jail, he only wished the father to comply with the order of the court, that is to say not to harass him.
(2)	The second thing that had happened is that the father had agreed to give an undertaking to the court not to harass the son, not to go to the son’s office and not to contact the son.
(3)	The third thing that had happened is that the father had indicated to the court that he was not aware of the making of the order of 18 March, because he only received a bundle of documents in English but there was no Chinese translation of the order of 18 March.  This is his allegation.

6. The happy circumstances now is that as the father is willing to give the undertaking not to harass the son or to trouble the son, the son is happy on that basis to withdraw the contempt proceedings.  Having regard to the outstanding question whether the order was correctly made, because there is an outstanding question whether the father had actually received a Chinese translation of the order of 18 March, I am prepared, upon the basis of the undertaking and upon the consent of the son, to give leave for the son to withdraw the contempt application and consequently to rescind the order that I have made on 30 May, especially since that had not been formally drawn up.  I hope this would bring a happy end to a rather unfortunate domestic dilemma.

7. For the benefit of the future peace between the father and the son, let me pass on to the son a painful message from the father.  It can be termed what the French will call ‘cri de coeur’, that is ‘a cry from the heart’, that the father would very much like at his advance age to be able to see his two other sons in Hong Kong, his daughter in Hong Kong and possibly also his wife in Hong Kong.  He understands, of course, that the plaintiff son does not want to see him.  If it is at all possible, I hope that the plaintiff can persuade the other two brothers, the sister and the mother, perhaps to occasionally see the defendant, on such occasions as the birthday of the defendant or New Year or Christmas.  This hopefully may promote a happy conclusion to an unhappy domestic dispute.

8. I therefore order that upon the undertaking of the defendant to this court and to the plaintiff that the defendant, whether by himself, his servants or agents or otherwise, from entering or remaining in the vicinity of the building where the plaintiff is working at Block A, 21 Tung Yuen Street, Yau Tong Bay, Kowloon, Hong Kong and upon his second undertaking that the defendant, whether by himself, his servants, agents or otherwise, howsoever from harassing the plaintiff or any of the staff of the company where the plaintiff is working at Block A, 21 Tung Yuen Street, Yau Tong Bay, Kowloon, Hong Kong by telephone or otherwise, that upon those two undertakings being given to the court, I order that the plaintiff be at liberty to withdraw the contempt application made to the court and I also direct that my order made under my judgement on 30 May 2005 be hereby rescinded.

HCA484/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.484 OF 2005

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J U D G M E N T

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1. I have before me a motion for an order of committal for contempt of the court dated 6 April 2005, taken out by the plaintiff against the defendant.  The defendant is not present today.  The application for committal is based on an alleged breach of an order made on 18 March 2005 by Deputy Judge Gill in favour of the plaintiff against the defendant.

2. The background to this case is somewhat complicated.  I would only briefly state that the relationship between the plaintiff (son) and the defendant (father) who is now alleged to be over 70 had been an unhappy one.  The father divorced his wife, that is the plaintiff’s mother some time ago.  The father was alleged to have relationship with other woman.  The son, having gone away to school as a teenager, never had a close relationship with the father. 

3. The affidavit evidence in support of the application for injunction before Deputy Judge Gill showed that, upon the son’s return from England to Hong Kong, the relationship between the son and the father had been stormy with a large number of occasions when the father caused public embarrassment to the son, both at the son’s place of work as well as at the son’s residence.

4. This was the background which led to the son, the plaintiff seeking an injunction order against the father.  That injunction order was granted by Deputy Judge Gill on 18 March 2005.  Paragraph 1 which is the critical paragraph relied upon of that order says that : “The Defendant [namely, the father] be restrained, whether by himself, his servants, agents or otherwise howsoever, from entering or remaining in the vicinity of the building where the plaintiff is working at Block A, 21 Tung Yuen Street, Yau Tong Bay, Kowloon, Hong Kong.”  

5. That same night after the order being made, the order was served on the father.  It was effected by personal service as evidenced by an affirmation of service of Evan Cheng Ching Lim, dated 24 March 2005, wherein at paragraph 1 it was stated that the service of the order and its Chinese translation, the Writ, the inter partes summons of 18 March, the supporting affidavit of 17 March of both Fong Kun Sheng Raymond (that is the son) as well as Winnie Kwan (that is the son’s assistant) as well as other documents were effected.  

6. The two essential elements therefore of the contempt had been satisfied, that is the making of the order and the service of the order.  The third essential ingredient required to establish contempt was the breach of the order.  The breach was alleged and proved by the second affirmation of Winnie Kwan, which was a confirmation of the annexed Statement pursuant to Order 52 r.2(2).  It is paragraph 4 of the Statement which is critical.  

7. There in paragraph 4, it was stated that on 23 March 2005 that is some five days after the service of the order, at 11 a.m. in the morning, the defendant and a woman rushed inside the building where they stayed, with the woman staying at the reception.  It is not clear whether it was the reception on 1^st floor of that building where the office of the plaintiff was located, or the reception on the ground floor.  But what is important is that the father (the defendant) attempted to enter the main office of the company, that is attempted to enter the 1^st floor and did.  Even though a guard stopped the father (the defendant), saying that he should not do so because of the court order restraining him from doing so, the father pushed the guard aside and went into the main office.  The defendant ignored the request to leave the company’s office on the 1^st floor, walked into a room where the staff of the company was working, interrupted the work and asked if the plaintiff was in the office.  The defendant, after walking around the office subsequently went out.  The police then came. 

8. What had been sufficiently proved to my satisfaction is that on 23 March, long after the defendant had been served with the order and with knowledge of the restraint injunction granted against him from going onto the building, he went there and remained there.  Therefore I find as a fact, at the appropriate standard of beyond reasonable doubt, that there was a breach by the defendant of the order of the court made on 18 March 2005.  

9. I am therefore satisfied that the defendant is guilty of having committed a civil contempt, and I find also, based on the aforesaid evidence, that the breach was not accidental.  The approach I propose to adopt, having reached that finding of civil contempt is per Ma J (as he then was) in the case of Citybase Property Management Ltd v. Angel Kam in HCA9676/2000, at paragraph 32, dealing with the question of punishment on a subsequent occasion.  

10. It seems to me that, in the absence of the defendant, I should adjourn the question of punishment so that the defendant can have an opportunity of explaining to me what happened and the circumstances that led to his breach, as well as possibly hearing from the plaintiff, the background of the detail relationship between the father and the son which led to the breach of the order and this unhappy domestic situation.  It seems to me appropriate that I should give the plaintiff and the defendant an opportunity to make submissions to me as well as to give evidence before me before the court reaches a final decision on the appropriate punishment. 

11. Accordingly, I would also adjourn, per the Citybase case, this motion to a date to be fixed.  What I would therefore propose in the order that I make is that there is a finding of guilty of civil contempt.  I would order the issue of a warrant of arrest so that the defendant can be brought before this court to enable the court to decide what should be the appropriate punishment at the adjourned hearing.  I direct that immediately upon the execution of the search warrant and within 24 hours of that execution the defendant be brought before this court and, at that time when the defendant is brought before this court, there would be a directions hearing when the court can direct the parties as to the date of the adjourned hearing and the steps necessary to be taken for the adjourned hearing including the question of the father and the son giving evidence and further submissions to be made by the father and/or the son to the court for the adjourned hearing and including also the question of the court granting bail pending the adjourned hearing. 

12. I reserve the costs of today, so that the question of costs can also be determined finally at the time of the adjourned hearing. 

Mr Ronald Lau, instructed by Messrs George Tung, Jimmy Ng & Valent Tse, for the Plaintiff

Defendant in person, absent