Case Detail

DCMP3254/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3254 OF 2009

_____________________

BETWEEN

	NG YIU KI	Plaintiff
	And
	CHAN YUK FUNG	Defendant

_____________________

Coram: H H Judge Chow in Court (Open to public)

Date of Hearing: 6 May 2010

Date of Judgment: 6 May 2010

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J U D G M E N T

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1. On 8 January 2010, I found that the Defendant had breached the injunction order made against her by Judge Leung on 13 July 2009. She was in contempt of court by violating the said injunction order. She made the admissions regarding matters referred to in the Plaintiff’s affirmations. The matter was adjourned to today for this court to impose penalties on her due to such contempt, so that she could seek medical reports in the meantime for mitigation purposes.

2. Today the Defendant submitted the medical reports of Dr Mak Fu-kwok and Dr Josephine Wong.

3. Dr Mak’s report reveals that the Defendant was first seen at the Western Psychiatric Centre, Department of Psychiatry, Queen Mary Hospital since November 1998. Diagnosed with a depressive illness, she was noted to have a fixation towards a male doctor working in the Queen Mary Hospital. This no doubt is the Plaintiff in this case, Dr Ng. She sent letters or gifts or copies of academic papers to his office, stalked him, waited for him after work.

4. She was treated with anti-depressant till she stopped taking them in October 2000. Psychological treatment was terminated in March 2001 due to her resistance to doctors’ advice. She defaulted follow-up since October 2007. Then she was seen by Dr Mak since August 2009. She was depressed in facing an injunction order made against her prohibiting her from contacting or stalking the Plaintiff. She was diagnosed at that time with an adjustment disorder with depressed mood. She was treated with an anti-depressant with an adjunctive sedating medication to help her to sleep. However, by December 2009, she again took gift to the doctor’s office in violation of the injunction order. At that time, she felt rejected by her family members who told her to move out of the family home and she had to adjust to independent living. She had too much time on hand after moving out to live in a rented room close to her working place. She could not help thinking of the doctor. An adjunctive psychotropic medication Risperdal 1 milligram nocte was added to her regimen but she did not try the new medication.

5. On 19 March 2010, she was seen by Dr Mak. She reported to have taken the medication as prescribed and she claimed that her mood had improved as the effect of the medications kicked in. She is still living alone. She realised that she should not do anything more to contact the Plaintiff.

6. In her report, Dr Josephine Wong said that she first saw the Defendant in Western Psychiatric Centre in November 1998. She was referred there by Tsan Yuk Hospital because of her harassing behaviour towards the Plaintiff. Then Dr Wong in her report described in detail about her behaviour towards Dr Ng and other matters relating to her daily living. Then Dr Wong goes on to say that in November 2009, the Defendant’s family asked her to move out of the family where she had been living with her parents. Her younger brothers felt that she had brought shame to the family because of this court case and the media interest it generated. She moved out and rented a room. Then she started bringing food to the Plaintiff again and made phone calls to his conference room in his department. She started doing this again because she felt that she had been thrown out by her family and was upset. She felt empty and unoccupied. Her mood was low.

7. On 8 January 2010, she admitted that she had breached the injunction order. She reported no attempts to contact or bring gifts to the Plaintiff since the end of November 2009. She missed the Plaintiff but she realised that she must not contact him anymore. She was medically examined on 13 April 2010 by Dr Wong. Then she understood that the Plaintiff’s application to the court for injunction order reflects that he had no feelings for her. She accepted that she had wasted a lot of time, energy and money on the Plaintiff.

8. She breached the injunction order because of rejection by her family in November 2009 and she had to move out to live by herself for the first time in her life. Feelings of unhappiness, rejection, emptiness and lack of occupation led to resumption of the act of bringing food to the Plaintiff again. She realised that she must not contact the Plaintiff again and there is no evidence that she has contacted Dr Ng since the end of November 2009 until now. If she had done so, no doubt the Plaintiff’s counsel would have informed this court. So, for a period of five months, she has not contacted the Plaintiff. This is one of the mitigating factors I have to consider before passing penalty.

9. The Plaintiff’s counsel submitted the case of Citybase Property Management Limited v Kam Kyun Tak & Others, No. 2003 2 HKC. In that case, the court sentenced the 2nd defendant to 6 weeks’ imprisonment. The court said that there was no mitigating factor in that case. The 2nd defendant operated a fast food outlet at residential premises. The 2nd defendant created a nuisance for other residents in the same building. At the same time, she was posing a potential danger to the public by the presence of LPG containers. The continued entering and exiting of persons from the premises in question also posed security risks for the building. This constitutes aggravating factors for the purpose of sentencing.

10. In our case, there are mitigating factors. The Defendant admitted wrongdoing on her part. She stopped contacting Dr Ng since November 2009. Now, she is taking the new medications which prove to be effective. The most important thing is that she realised that she had wasted time and money on the Plaintiff and this will not bring any fruit at all. Such way of thinking will bring her to comply with the injunction order and it will ensure that she will not get in contact with the Plaintiff again. There are no aggravating factors in this case.

11. Now, in my view, if a term of imprisonment is imposed, most probably she would lose her job and her family. The punishment will be too severe. I think that the proper order in this case is one of imposing a fine.

12. I make the following orders: (1) The Defendant do pay a fine of $10,000 for her contempt of court within 30 days from today. The payment is to be made into court; (2) the Defendant do pay to the Plaintiff the costs of this action on an indemnity basis with certificate for counsel.

(Discussion re costs)

13. The Defendant do pay to the Plaintiff the costs of this action on an indemnity basis with certificate for counsel. Costs summarily assessed at $145,000 to be paid forthwith.

(Chow)
District Court Judge

Mr Allen Lam, instructed by Messrs Ko & Chow, for the Plaintiff

Defendant, in person, present

DCMP3254/2009

香港特別行政區

區域法院

雜項案件2009年第3254號

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原告人	Ng Yiu Ki
	對
被告人	Chan Yuk Fung（陳玉鳳）

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主審法官：區域法院周兆熊法官法庭聆訊

聆訊日期：2010年1月8日

判決書日期：2010年1月8日

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判決書

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1. 這是原告人的申請，他要求本庭作出以下的命令：

（1）The Defendant Chan Yuk Fung（陳玉鳳）be committed to prison for her contempt of this Court in having carried out act and conduct that are in breach of the Injunction Order made against her by H.H. Judge Simon Leung on 13^th July 2009 in DCCJ no. 2983 of 2009.

（2）Further or alternative to （1） above, the Defendant Chan Yuk Fung（陳玉鳳）be sentenced to pay a fine for her contempt of this Court in having carried out act and conduct that are in breach of the Injunction Order made against her by H.H. Judge Simon Leung on 13^th July 2009 in DCCJ no. 2983 of 2009.

2. 2009年7月13日，梁法官針對被告人作出以下的禁制令：

（a）The Defendant be restrained whether by herself, her servants or agents from sending any message, note, letter, card or document by mail, by fax whether at the number 2817 5254 or not, by hand, by courier, by the internal mail system of the Hospital Authority or howsoever to the Plaintiff at Ward K10 on the 10th Floor of K Block, Queen Mary Hospital, or any other part of Queen Mary Hospital, No. 102 Pokfulam Road, Hong Kong.

（b）The Defendant be restrained whether by herself, her servants or agents from sending any parcel, gifts or items including but not limited to food, whether cooked or fresh, by mail, by hand, by courier or howsoever to the Plaintiff at Ward K10 on the 10th Floor of K Block, Queen Mary Hospital, or any other part of Queen Mary Hospital, No. 102 Pokfulam Road, Hong Kong.

（c）The Defendant be restrained whether by herself, her servants or agents from making any telephone call to the Plaintiff whether at the telephone number 2855 3476, 2855 3487 or any other telephone number at Ward K10 on the 10th Floor of K Block, Queen Mary Hospital, or any other part of Queen Mary Hospital, No. 102 Pokfulam Road, Hong Kong.

（d）The Defendant be restrained form entering into or remaining on the 10th Floor of K Block and the New Clinical Building of Queen Mary Hospital, No. 102 Pokfulam Road, Hong Kong.

（e）The Defendant be restrained from coming to or remaining within the radius of 50 meters of the Plaintiff.

(3) The above Order will remain in force until trial of this Action or further Order of this Court.

3. 根據原告人於2009年11月26日的誓章，被告人違反上述的命令。被告人在2009年7月13日出席聆訊，梁法官在庭上向她解釋破壞法庭命令的最嚴重後果可能為監禁，但在同一日的晚上7時，被告人即日違反法庭所頒布的命令。原告人在他支持本申請的誓章提及不同日期被告人的作為，以示她沒有遵守法庭的命令。被告人告知本席她不反對原告人在誓章所說的為真實的事情，她亦不反對原告人是次申請。

4. 在原告人誓章的4（a）段，原告人說（審訊文件夾第207頁）， “On 13^th November 2009” -- 原告人（原文照錄）是在11月13日7點，不是在判決當日違反法庭的命令。 “On 13^th November 2009, at around 7:00 p.m., the Defendant made a telephone call to the telephone number 2855 3476 at the seminar room in Ward K10 on the 10th Floor of K Block, Queen Mary Hospital. When I picked up the telephone, the defendant spoke and asked me to pick up food items at the rear staircase. I recognized the Defendant’s voice. I went to the rear staircase and found 3 plastic bags and a “Green” bag containing food items such as fruits, bread, fresh meat, instant noodle, vegetables, eggs, ‘Yakult’ drinks, on the landing platform between the 9th from 10th Floor of K Block, Queen Mary Hospital. There was also a roll of plastic storage bags. There was a large label ‘To: Dr. Y.K. Ng, Paed. Dept., QMH’ on the outside of the “Green” bag. There were payment slips found inside the bags, and Chinese handwritings appeared on one of the payment slips.”

5. 在4（b）段,原告人說， “On 16^th November 2009, at around 7:00 p.m., the Defendant made a telephone call to the telephone number 2855 3476 at the seminar room in Ward K10 on the 10th Floor of K Block, Queen Mary Hospital. When one of my colleagues picked up the telephone, the Defendant spoke and asked me to pick up food items at the rear staircase. Then the Defendant cut off the line. My colleague recognized the Defendant’s voice. My colleague went to the rear staircase on Ward K10 and found several bags of food items.”

6. （c）小段， “On 18^th November 2009, at about 7:00 p.m., the Defendant made a telephone call to 2855 3476, at the seminar room in Ward K10 on the 10th Floor of K Block, Queen Mary Hospital. When I picked up the telephone, the Defendant spoke and asked me to pick up food items at the rear staircase, and she cut off the line immediately. I recognized the Defendant’s voice. I went to the rear staircase and found 3 plastic bags and 2 “Green” bags containing food items such as fruits, bottles of drink, vegetables, fresh meat, roast chicken, bread, pudding, biscuits, a bunch of banana and 2 packs of instant noodle wrapped in a Hospital Authority newsletter, on the landing platform between the 9th and 10th Floor of K Block, Queen Mary Hospital. There were also 3 plastic folders. There was a large label ‘To: Dr. Y.K. Ng, Paed. Dept., QMH’ on the outside of one of the plastic bags. There were payment slips found inside the plastic bags. There were notes with Chinese handwritings found in the plastic bags. I recognized those Chinese handwritings to be the Defendant’s.”

7. （d）, “On 20^th November 2009, at around 6:45 p.m., the telephone with number 2855 3476 at the seminar room in Ward K10 on the 10th Floor of K Block, Queen Mary Hospital rang. I went to the seminar room and picked up the phone, the line was cut immediately. ......... I went to the rear staircase on Ward K10 and found a total of 8 plastic bags containing food items such as fruits, drinks, vegetables, fresh meat, cooked chicken, bread, cakes, biscuits, a bunch of banana, Chinese sausage, instant noodle, on the landing platform between the 9th and 10th Floor of K Block, Queen Mary Hospital. ......... There was a large label ‘To: Dr. Y.K. Ng, Paed. Dept., QMH’ on the outside of one of the plastic bags. There were notes with Chinese handwritings found in the plastic bags. I recognized those Chinese handwritings to be the Defendant’s.”

8. “On 23^rd November 2009, at around 7:00 p.m., the telephone with number 2855 3476 at the seminar room in Ward K10 on the 10th Floor of K Block, Queen Mary Hospital rang. One of my colleagues picked up the telephone ......... and my colleague passed the message to me. I went to the rear staircase on Ward K10 and found a total of 5 plastic bags containing food items such as fruits, vegetables, fresh meat, fish, cooked chicken, chicken wing, barbecued pork, bread, dim sum and instant noodle, on the landing platform between the 9th and 10th Floor of K Block, Queen Mary Hospital. ......... There was also a bunch of 6 yellow roses and forget-me-not, with a large label ‘To: Dr. Y.K. Ng, Paed. Dept., QMH’ on the outside. ......... There were also notes with Chinese handwritings found in the plastic bags. I recognized those Chinese handwritings to be the Defendant’s.”

9. 其後，原告人把上述的事情，通過他的律師向被告人的律師作出投訴，但似乎原告人律師所寫的信的投訴不產生效用。於2009年11月25號，有關被告人再次致電予原告人發生多一次，在原告人誓章的第6段，他說， ‘... ... on 25^th November 2009, at about 7:00 p.m., the telephone with number 2855 3476 at the seminar room in Ward K10 on the 10th Floor of K Block, Queen Mary Hospital rang. When I picked up the telephone, the Defendant said “Go to the rear staircase to pick up the food, please” and she repeated saying that more than 6 times. Then the line was cut. I recognized the Defendant’s voice. I went to the rear staircase on Ward K10 and found several plastic bags containing food items such as fruits, vegetables, fresh meat, fish, ......... on the landing platform between the 9th and 10th Floor of K Block, Queen Mary Hospital. There was a large label ‘To: Dr. Y.K Ng, Paed. Dept., QMH’ on outside of one of the plastic bags. There were payment slips and notes with Chinese handwritings found in the plastic bags. I recognized those Chinese handwritings to be the Defendant’s.’

10. 上述的有關被告人的行為，都是發生於2009年11月份之內。這是發生於2009年7月13日，梁法官作出命令之後。上述的行為明顯地、清楚地違反梁法官於7月13日所頒布的命令，因此，該等行為構成藐視法庭的行為，而由於該些行為是由被告人作出的，所以被告人違反了梁法官於2009年7月13日所作出的命令。

（法官與雙方討論有關內容更改的事宜）

11. 本庭接受原告人在他的誓章內提及有關被告人違反梁法官於7月13日命令的事實。

（法官與雙方討論有關內容更改的事宜）

12. 本席接受原告人在他的兩個誓章內提及有關被告人違反7月13日命令的事實。

（周兆熊）
區域法院法官

原告人：由高覺輝律師行高覺輝律師代表

被告人：無律師代表

NG YIU KI v. CHAN YUK FUNG

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