ZQA AND OTHERS v. SCC AND ANOTHER

FCMP 129/2018

[2020] HKFC 184

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 129 OF 2018

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BETWEEN

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D E C I S I O N
(Leave to appeal out of time)

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Foreword

1.  On 11/6/2019, this Court handed down its decision (“Contempt Decision”) having found the 1^st and 2^nd Respondents are in contempt of Court after trial for failing to comply with an Order of the Court dated 16/11/2017 in another set of proceedings under FCMP No.63/2017 (“2017 Order”).

2.  On 31/7/2020, this Court handed down its decision on sentencing whereby the 1^st and 2^nd Respondents were each committed to prison for a period of 3 months (“Committal Decision”).

3.  On 12/8/2020, the 1^st and 2^nd Respondents issued an Inter Partes Summons seeking :-

- An extension of time to apply for leave to appeal the Contempt Decision; and

- Leave to appeal to the Court of Appeal the Contempt Decision.

4.  In the draft Notice of Appeal attached to the Summons dated 12/8/2020, it sets out 5 grounds of appeal and seeking (a) the ContemptDecision be quashed; and (b) costs of the appeal and in the Court below be to the 1^st and 2^nd Respondents. 

5.  The 1^st Respondent’s filed his 3^rd Affirmation, which was also filed on behalf of the 2^nd Respondent, in support of the application.  In this Affirmation, there was an Appendix attached sub-divided into 6 stages containing whatsapp messages since July 2017 up to July 2020 between the 1^st Respondent and his then handling solicitor Peter Wong (whom I will refer as “Mr. Wong”) in this Decision.  Against these narrated whatsapp messages there were comments/description provided by the 1^st Respondent.  The 1^st Respondent expressly waived the legal professional privilege within those whatsapp messages save on some redacted parts appeared in the Appendix[1].  Besides, it was also attached to the 3^rd Affirmation as exhibit “SCC-24” the print-out of the whatsapp messages, including those narrated whatsapp messages appeared in the Appendix.

6.  In the 3^rd Affirmation, it was divided into 3 parts, namely, Parts A, B and C[2] classified as :-

Part A –	summary of background to the intended appeal and the key documentary evidence relied upon for Parts B and C;
Part B –	the nature and scope of the fresh evidence intended to adduce before the Court of Appeal and also, for completeness, in support of the appeal against the Committal Decision;
Part C –	the factual basis in support of the intended application to adduce fresh evidence in Part B and for extension of time to apply for leave to appeal against the Contempt Decision.

The applicable law and legal principles

7.  The jurisdiction to grant leave to appeal was contained in Section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.  It is trite that the duty of showing reasonable prospect of success falls upon the applicant for leave to appeal, namely, the 1^st and 2^nd Respondents in this case.

8.  The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he or she has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be

“probable” (see KNM v. HTF, HCMP No.288/2011 per Hon Fok JA (as he then was) at paragraph 9 of that Judgment).

9.  In the same Judgment, which also came with an application for extension of time to apply for leave to appeal, His Lordship went on to say :-

“18. As to this, it is clear that the application is 14 days, and not just one day, out of time. Further, the applicant’s assertion that she had already signed her affirmation in support before the deadline is contradicted by the fact that it is dated 24 February 2011. In any event, the attempt to lay a blame on her former solicitors, although it may be a matter of complaint as between her and them, is not a good excuse for the delay. (emphasis added) This is therefore a case in which the delay is inexcusable.

19. Where a delay is inexcusable although insubstantial (which is the situation in the present case), a party seeking an extension of time must show a real prospect of success on the merits: see Secretary for Justice v. Hong Kong & Yaumatei Ferry Co Ltd [2001] 1 HKC 125 at 129I applying Chiu Sin Chung v. Yu Yan Yan Angela [1993] 1 HKLR 225 at p.229 line 45.

20. Therefore, in the circumstances of this case, the threshold for the grant of leave is not simply the test of a reasonable prospect of success but rather the test of a real prospect of success on the merits.”

10.  In determining whether leave to appeal out of time should be given, the following factors have to be considered :-

(a) the length of the delay;

(b) the reasons for the delay;

(c) the prospects of success;

(d) the extent of prejudice that would be caused to the other party if leave is granted.

(see : Norwich and Peterborough Building Society v. Steed [1991]WLR 449 followed by Birkenhead Properties & Investments Ltd v. Leung Yiu & Ors[1998] 1 HKLRD 527.)

New Arrangement for Application for leave to appeal

11.  From 13/8/2018 and thereafter, the case management practice suggested by the High Court in the case of ZJ v. XWN[3] was adopted in the Family Court for handling applications for leave to appeal.  A Protocol was issued to practitioners and members of the public by the Principal Family Court Judge on the same day (“the Protocol”) (**As attached).

12.  Paragraphs 4 to 7 of the new arrangement under the Protocol provides :

“4. Together with the summons, the applicant for leave to appeal (“the Applicant”) has to file:

(1) A draft grounds of appeal which should be attached to the summons;

(2) Where appropriate, an affidavit explaining the reasons for any delay in support of an extension of time; and

(3) A written statement/skeleton submission in support (which should not be more than 5 pages on A4 paper (single side only) legibly printed in no less than 14 font size and 1.5 line spacing, unless otherwise directed by the Court) as to why leave should be granted.

5. All the above documents, together with a notice of this new arrangement in both English and Chinese language (a copy of which is available at the Family Court Registry) must be served on the other party or parties to the proceedings except for ex parte proceedings (unless specifically directed).  An affidavit of service has to be filed within 3 days of service.

6. If the Applicant shall fail to comply with the above new arrangement, he/she may run the risk of having his/her application struck out and dismissed on the ground of failure to prosecute the application with due diligence.

7. A party wishing to oppose the grant of leave to appeal (“the Respondent”) must, within 14 days of the service of the application, file and serve an affidavit (but only where it is necessary in response to the Applicant’s affidavit, if any) and a statement/skeleton submission in opposition (which should not be more than 5 pages on A4 paper (single side only) legibly printed in no less than 14 font size and 1.5 line spacing, unless otherwise directed by the Court) as to why leave to appeal should not be granted or why leave should only be granted on terms.”

The Grounds of Appeal

13.  In the draft Notice of Appeal, the 1^st and 2^nd Respondents set out the following 5 grounds, namely :

(a) that the 1^st and 2^nd Respondents be allowed to adduce evidence to show the non-compliance with the 2017 Order was not wilful, deliberate or contumacious;

(b) this Court failed to consider or sufficiently consider the 1^st Affirmation of the 1^st Respondent and erred in finding the Applicants’ Amended Interrogatories had not been answered or sufficiently answered;

(c) further or alternatively, this Court was wrong to infer that the non-compliance with the 2017 Order was wilful, deliberate or contumacious;

(d) this Court erred in finding that the 1^st Affirmation and/or the Unfiled 2^nd Affirmation did not purge the contempt so found by this Court; and

(e) this Court erred in finding that the 1^st and 2^nd Respondents had acted in breach of the 2017 Order without remorse or regret.  

Discussion

Whether there was compliance with the Protocol ?

14.  Apart from the Inter Partes Summons dated 12/8/2020 and the 3^rd Affirmation of the 1^st Respondent (which was also filed on behalf of the 2^nd Respondent) in support of the present application for leave to appeal out of time, there was no written statement/skeleton submission setting out why leave to appeal should be granted.  This is not only unhelpful but also contrary to paragraph 4(3) of the Protocol.  Thus this Court could only confine to reading into the factual matters set forth in the said 3^rd Affirmation.

15.  More importantly, it is also unclear as to whether paragraph 5 of the Protocol, which is mandatory, had been complied with.  Suffice to say is that as at the date of this Decision, no affidavit of service of the Inter Partes Summons and the 3^rd Affirmation of the 1^st Respondent on the Applicants’ solicitors had been filed.  The Inter Partes Summons was marked and also meant to be served on the Solicitors for the 1^st, 2^nd and 3^rd Applicants[4].  In any event, the 1^st, 2^nd and 3^rd Applicants are entitled to file an affirmation to oppose the present application had they been properly served with the Inter Partes Summons and the 3^rd Affirmation of the 1^st Respondent as per paragraph 7 of the Protocol. 

16.  Almost 4 weeks had now elapsed since the present application was filed on 12 August 2020, paragraph 6 of the Protocol readily applies.  On this alone, I am entitled to strike out and dismiss the 1^st and 2^nd Respondents’ application for their failure to prosecute their application with due diligence.  And I will do so accordingly.

17.  In the absence of any affidavit of service, it is unclear whether the Solicitors for the 1^st, and 2^nd 3^rd Applicants are aware of the present application.  As a matter of fact, no affidavit in response had ever been filed by the 1^st, 2^nd and 3^rd Applicants.

18.  For the sake of completeness, I will go into the merits of the present application for leave to appeal out of time and also the substantive grounds of appeal in the event that my decision to dismiss the present application for failure to prosecute the application with due diligence was overturned by the appellate court.

Whether leave to appeal out of time should be given in this case ?

19.  It is within the Court’s discretion as to whether justice could be served by allowing extension of time for seeking leave to appeal, given full consideration to the following factors.   

(a) The length of the delay

20.  The Contempt Decision was handed down on 11/6/2019.  The 28-day period for appeal expired on 9/7/2019.  The present Summons for leave to appeal was issued on 12/8/2020.  There was a delay of, say, about 400 days which is substantial and excessive.

(b) The reasons for the delay

21.  The reasons for the delay can be found at the following paragraphs of the 3^rd Affirmation :-

“70. We also wish to highlight that the time between the Contempt Decision and the Committal Order appeared to be unusually long for a period of more than 12 months. We had not applied our mind to an appeal, and neither were we expressly advised to pursue one, until the Committal Order for imprisonment on 31^st July 2020.

……….

73. We have been advised that the Court has power to extend the time for applying for leave to appeal against the Contempt Decision. In support of an application for time, we pray in aid of the following matters :-

(i) the matters deposed to in Part C Sections A and B above are repeated;

(ii) particularly, the Contempt Decision albeit dated 11^th June 2019 was only sent to us by Peter Wong on 22^nd July 2019, by which time the original time limit for making an application for leave to appeal had already expired;

(iii) at all material times after the Contempt Decision but before the Committal Order, Peter Wong and Ms Janine Cheung had not advised us on the time limit or merits for bringing an appeal against the Contempt Decision. This is evident from the Whatsapp messages records since 22^nd July 2019;

(iv) it was only until the Committal Order and with the benefit of advice from our present solicitors and counsel were KK So and I made aware about the lateness of an appeal against the Contempt Decision;

(v) even from a practical point of view, if, which KK So and I had at all the material times given to believe, the Court at first instance decided to impose a non-custodial sentence, there would be a realistic possibility for us not to pursue an appeal against the Contempt Decision as this would invariably meant more costs, time and an unnecessary distraction for both the continued conduct of the proceedings in FCMP 63/2017 and the administration of the estate of the Deceased;

(vi) the time between the Contempt Decision and the Committal Order was a long one spreading over 12 months;

(vii) in all the circumstances it may be seen as fair and sensible for KK So and I to adopt a wait and see approach and leave the Contempt Decision to appeal until the Committal Order.”

22.  I will now deal with each of the reasons for the delay in their order of sequence.                          

23.  For the reason under paragraph 70 of the 3^rd Affirmation, I fail to see why and how the length of time between the ContemptDecision and the Committal Order of imprisonment would have any impact or influence on the decision as to whether or not to seek leave to appeal the Contempt Decision. The 1^st and 2^nd Respondents seem to suggest that their decision to appeal or not to appeal the ContemptDecision only came to their mind when they learnt about the sanction of imprisonment imposed by the Court in July this year which was over 12 months.  In my view, had the sanction of imprisonment been a dominant factor for deciding whether or not to seek leave to appeal, it matters not when the Committal Order was passed, be it immediately after the Contempt Decision or 12 weeks or 12 months afterwards.  As a matter of fact, the lapse of time had offered the 1^st and 2^nd Respondents, who have had the benefit of reading the full reasons for convicting them of contempt, ample time and yet another opportunity to take whatever steps as may be appropriate to purge the contempt in the best way they could.  At the end, this had not been done.  Their decision to adopt a “wait and see” attitude could not be accepted as an excuse for the substantial and excessive delay.

24.  For the reason under paragraph 73 (i) of the 3^rd Affirmation, the matters advanced under Part C Sections A and B, namely, events which had happened after the trial of the Committal on 13 March 2019 and their lawyer Mr. Wong was continuously engaged (Section A); and the failure to adduce whatsapp messages at the substantive trial hearing of the Committal on 13 March 2019 (Section B) could hardly be acceptable reasons or excuse for the delay.  In my view, the 1^st and 2^nd Respondents’ decisions to continue engage Mr. Wong, rightly or wrongly with hindsight, could not be acceptable reasons or excuse for the delay.   The alleged failure to adduce whatsapp messages exchanged with Mr. Wong has nothing to do with the reasons for the delay in seeking leave to appeal.  It could not be disputed that whether to adduce the whatsapp messages at the substantive trial hearing of the Committal was a decision made with the benefit of legal advice from Mr. Wong.  I fail to see how the 1^st and 2^nd Respondents could now seize upon their decision to continuously engage Mr. Wong as an excuse for the delay. Had this been lightly accepted as an excuse, it simply opens the floodgate that litigants could place complaints on the lawyers that they had entrusted and then have a change of the legal team when they come to seek extension of time for appealing the Court’s decision.  The attempt to lay a blame on the former solicitors, although it may be a matter of complaint as between them and the lawyers, is not a good excuse for the delay[5].

25.  For the reason under paragraph 73 (ii) of the 3^rd Affirmation, that is, the time when the Contempt Decision was received by the 1^st and 2^nd Respondents had passed the time limit for seeking leave to appeal is another non-starter.  Had the 1^st and 2^nd Respondents wanted to appeal, they could have sought extension of time to do so in the way same as what they are now doing soon after (emphasis added) they received the Contempt Decision[6] on 22 July 2019[7].  In my view, they could not get away with their inactivity for the past 400 days by now shifting the blame on their then lawyer Mr. Wong.  Given the 28-day period for appeal expired on 9 July 2019[8], the delay allegedly caused by Mr. Wong was only about 13 days (between 9 July 2019 and 22 July 2019).  Apparently, the period counting from 22 July 2019 to 12 August 2020 (i.e. the date of this application for extension of time) was around 387 days which was substantial and excessive.

26.  For the reason under paragraph 73 (iii) of the 3^rd Affirmation, had they not been duly advised on the time limit and merits of bringing an appeal of the Contempt Decision, this is only a cause of complaint upon their legal representatives rather than an excuse for the delay.

27.  For the reason under paragraph 73 (iv) of the 3^rd Affirmation, that the advice as to the lateness of an appeal of the Contempt Decision only came from their present legal team also is not an excuse for the delay.

28.  For the reason under paragraph 73 (v) of the 3^rd Affirmation, the practicality of appealing the Contempt Decision had the 1^st and 2^nd Respondents been given to believe that only a non-custodian sentence may be imposed could hardly be an excuse for the delay or any concern to the Court.  Such a submission implicitly hinted that custodial sentence would provoke appeal application.  With respect, such a submission is plainly wrong, offensive and unscrupulous.  The Court would never be deterred from or threatened by any appeal application when passing the appropriate sentence on contemnor according to established legal principles and the particular circumstances of the case before it.

29.  The other submission of pursuing an appeal against the Contempt Decision would mean invariably more costs, time and an unnecessary distraction of proceedings is another lacuna.  As a matter of fact, this is exactly what is now happening.  

30.  For the reason under paragraph 73 (vi) of the 3^rd Affirmation, I repeat my decision at paragraph 23 of this Decision.

31.  For the reason under paragraph 73 (vii) of the 3^rd Affirmation, adopting the approach of “wait and see” what would be the sanction could hardly be an excuse for the delay.  This was a free choice of the 1^st and 2^nd Respondents.  No doubt both of them must have prepared to run the risk of not being able to obtain the indulgence of the Court to grant them extension of time to appeal.

32.  Taking all the above into account, I decided that there are no acceptable excuses for the substantial and excessive delay of, say, 400 days for seeking leave to appeal the Contempt Decision dated 11 June 2019.

(c) The prospects of success

33.  As said[9], I have not been assisted by the lawyers for the 1^st and 2^nd Respondents with any written statement/skeleton submissions or reference to any cases or authorities which they intended to rely upon to support the present application.  This is unusual and extremely unhelpful. 

34.  In all cases of leave to appeal applications, it is pertinent for the appellants to set out in detail and with precision in their written statement/skeleton submissions as to what error of law they envisaged having reasonable prospects of success on appeal and that leave should be readily given.   As the trial Judge giving the Contempt Decision and now to have to consider granting leave to appeal, it is wrong for me to “descend into the arena” and, by reading the grounds of appeal and my reasons for the Contempt Decision, to forecast or guess any possible line of contention that the 1^st and 2^nd Respondents may be arguing to overturn the Contempt Decision.  Such an exercise is akin to the Court undergoing a “review” of its own reasons for the decision and then to find out any flaws in the decision that are likely to be overturned or set aside on appeal.

35.  With such reminder, I will now go through each of the 5 grounds of appeal set forth in the draft produced in their order of sequence.

Ground 1

36.  Ground 1 appears to tie in an application for leave to adduce further or fresh evidence for overturning this Court’s finding against the 1^st and 2^nd Respondents that their non-compliance of the 2017 Order was wilful, deliberate and contumacious.

37.  The law on admission of further or fresh evidence when a case went on appeal are well settled.

38.  Order 59 rule 10 (2) of the Rules of the High Court provides that the Court of Appeal shall have the power to receive further evidence on questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner, but no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.

39.  In the cardinal case of Ladd v. Marshall[10], it was held that the party seeking to adduce further or fresh evidence after trial must satisfy 3 conditions, namely :-

- it must be shown that the evidence could not have been obtained with reasonable diligence for use at trial; and

- the evidence must be such that, if given, it would probably have an important influence in the result of the case, though it need not be decisive; and

- the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

40.  Furthermore, the Court of Appeal has adopted a strict approach in applying the conditions set out in Ladd v. Marshall (supra) for the reason that :-

“When a litigant has obtained a judgment in a court of justice…. he is by law entitled not to be deprived of that judgment without very solid grounds” (Brown v Dean [1910] AC 373 at 374 per Lord Loreburn LC) who adds that the maxim interest reipublicae ut finis sit litium applies.”[11]

41.  Having said, there are however exceptional cases where the Ladd v. Marshall conditions do not apply, or apply in a modified form. It has been held that, in the following exceptional categories, fresh evidence of pre-trial matters or events may, at the discretion of the court (emphasis added), be admitted notwithstanding the fact that the Ladd v. Marshall conditions are not satisfied[12]. The categories of exceptional cases are :-

- Appeals in judicial review proceedings;

- Appeals against committal orders;

- Appeals involving the welfare of minor children.

42.  There are altogether 9 sub-paragraphs, namely, from (i) to (ix) under Ground 1.  In a gist, they referred to their previous lawyer Mr. Wong to whom they had provided instructions and documents in a timely manner but whose inaction, lack of attention and/or negligent conduct in handling their case was unbeknown to them.  Further, Mr. Wong had not adequately advised them on the consequences of and/or the appropriate steps to take by virtue of the non-compliance with the 2017 Order.

43.  I have not been assisted further as to the underlying core issue whether serious allegation of solicitors’ inactivity and/or oversight and/or negligence, whilst proof of the same is wanting, could readily be a ground for granting leave to adduce further or fresh evidence; in particular, those further or fresh evidence perse attracted legal professional privilege (“LPP”) although it had now been waived[13]. 

44.  Even though the present intended appeal may fall within one of the exceptional cases for adducing further or fresh evidence where the Ladd v. Marshall conditions do not apply[14], or have to be applied in modified form, the court would still have to exercise its own discretion as to whether the further or fresh evidence could be adduced.    

45.  As said by Fok JA (as he then was) in the KNM v. HTF case, supra, where the delay was inexcusable although insubstantial, the party seeking an extension of time must show a real prospect of success on the merits[15]. In the present case, I have already decided against the 1^st and 2^nd Respondents that the reasons for the delay are inexcusable and the length of the delay was also substantial and excessive.  With such finding in place, together with my decision on striking out and dismissal of the present application for want of prosecution[16], the prospect of success factor must be shown to be a real one rather than merely reasonable.  Even this could be shown, which I have not so decided, leave could only be granted upon the second limb of “some other reasons in theinterests of justice” under the statutory provisions[17] for granting leave to appeal. 

46.  The stand or fall of Ground 1 depends on whether leave to adduce further or fresh evidence could be granted.  Without the aid of any written statement/skeleton submission from the 1^st and 2^nd Respondents; coupled with my observation under paragraph 43 of this Decision, I am not convinced that leave should be granted for further or fresh evidence to be adduced at this stage.

47.  Having said, I decided that there is no real or reasonable prospect of success on appeal in respect of Ground 1.  

Ground 2

48.  The challenge under this Ground refers to this Court failed to consider or sufficiently consider the contents of the 1^st Affirmation together with exhibits and thereby erred in finding against the 1^st and 2^nd Respondents for not answering the Interrogatories or Amended Interrogatories.

49.  As set out in the reasons for the ContemptDecision, the 1^st Affirmation of the 1^st Respondent was clearly said to be filed in opposition to the Applicants’ claim (emphasisadded).  There is no reference anywhere in this 1^st Affirmation that it was filed or intended to be filed as the affirmation to answer Interrogatories pursuant to the 2017 Order[18].  Thus, there is no basis and in fact wrong, for the Court to input another purpose for the filing of the 1^st Affirmation disregarding the clearly stated purpose of filing it by the deponent.  To do so is tentamount to the Court usurping the litigation process to the prejudice of the parties.

50.  Besides, there is also an issue that such 1^st Affirmation was filed out of time without leave to do so being sought from the Court.

51.  I find there is no real or reasonable prospect of success on appeal in respect of Ground 2.

Ground 3

52.  There are 8 sub-paragraphs, namely, from (i) to (viii) under this Ground.  The challenge made was that this Court was wrong to infer non-compliance with the 2017 Order was willful, deliberate or contumacious.

53.  Sub-paragraph (i) refers to the 1^st Affirmation in substance had provided answers to the Interrogatories although not drafted in a desired format or manner.  In my decision, such contention is completely devoid of merits.  The issue is not the way of drafting or the format used.  It was the stated purpose for which the 1^st Affirmation was filed.

54.  Sub-paragraph (ii) refers to delay in filing of the 1^st Affirmation was insufficient for drawing inference against the 1^st and 2^nd Respondents having done so deliberately. 

55.  Under the 2017 Order, the 1^st Affirmation was required to be filed within 28 days from the said Order, that is, the time would be expired on 14 December 2017[19]. The 1^st Affirmation was only filed on 15 May 2018[20], that is, a delay of some 151 days (between 14/12/2017 and 15/5/2018).  The fact that there was never any application for time extension or any reason put forward for not applying for leave to do so out of time is suffice to support the finding of deliberate or intent.  The 1^st and 2^nd Respondents could not simply take the law into their own hands and do whatever they want and whenever they like.

56.  The contention under sub-paragraph (ii) must fail.

57.  Sub-paragraph (iii) must fail.  Since the 2^nd Affirmation had not been filed, let alone that leave to do so would be required but had never been obtained, the contention that the contents of such “unfiled” 2^nd Affirmation were substantially the same as the 1^st Affirmation (which was filed but without leave to do so out of time) becomes a non-starter.  As said in the Contempt Decision[21], this Court could not even consider the “unfiled” 2^nd Affirmation. The need of the 2^nd Affirmation was also in doubt if the 1^st Affirmation was said to have already provided answers to the Interrogatories.  There is also the unexplained fallacy as to the purpose of the “unfiled” 2^nd Affirmation.

58.  On sub-paragraph (iv), reliance and acting upon their own legal advisers had no impact on this Court’s finding of the 1^st and 2^nd Respondents’ conduct being willful, deliberate and contumacious unless the legal advisers had been found to be unethical or negligent by their governing bodies, say the Law Society, or the Court.  So far this had not happened in this case.

59.  On sub-paragraph (v), the lapse of time between affirming the 2^nd Affirmation and the date of service of the Amended Interrogatories and the substantive trial hearing on contempt on 13 March 2019 had no impact whatsoever, given the fact that the 2^nd Affirmation had never been filed with the Court or properly served on the 1^st, 2^nd and 3^rd Applicants who administered the Amended Interrogatories.

60.  The contention under sub-paragraph (v) must fail.

61.  On sub-paragraph (vi), the absence of knowledge of the 1^st and 2^nd Respondents that the 2^nd Affirmation was not formally filed or properly served, after it was affirmed on 10 September 2018 and before the substantive trial hearing on contempt on 13 March 2019, was neither here nor there.  Reason being that such 2^nd Affirmation had never been accepted as evidence to prove compliance with the 2017 Order[22].  That said, no inference of non-compliance had been drawn as per the contention under sub-paragraph (vi).  The conclusion that was drawn was that there was no compliance.

62.  On sub-paragraph (vii) as to the penal notice and lack of legal advice on consequences of non-compliance, I repeat paragraphs 39 to 47 of my Reasons for the Contempt Decision.

63.  The contention under sub-paragraph (vii) must fail.

64.  On sub-paragraph (viii), it was wrong to say an inference was drawn on the mere fact of lapse of time alone.  From the Reasons for the Contempt Decision, it was clear that the finding made or inference drawn came from all factors properly considered collectively rather than upon an inference drawn from an isolated fact of lapse of time.

65.  The contention under sub-paragraph (viii) must fail.

66.  I find there is no real or reasonable prospect of success on appeal in respect of Ground 3.

Ground 4

67.  The 1^st Affirmation was specifically stated and filed for opposing the claim by the 1^st, 2^nd and 3^rd Applicants rather than in compliance with the 2017 Order.  At the time of filing the 1^st Affirmation, which was 15 May 2018, there was no finding of contempt against the 1^st and 2^nd Respondents yet.  Hence. it was wrong for the challenge under this Ground that the Court was wrong to find the 1^st Affirmation did not purge the contempt found as per the Contempt Decision (which was dated 11 June 2019).  The 1^st Affirmation preceded the Contempt Decision.

68.  The “unfiled” 2^nd Affirmation had never been accepted as evidence for the want of filing and service, let alone leave to do so had never been obtained.  Thus, the challenge under this Ground must fall apart.

69.  I find there is no real or reasonable prospect of success on appeal in respect of Ground 4.

Ground 5

70.  This Court having found in the Contempt Decision that the non-compliance was one of “no answer was provided” rather than a case of “insufficient answers wereprovided”[23].

71.  I fail to see how a complete defiance of the 2017 Order for not providing any answers could not be said to be without remorse or regret.

72.  I find there is no real or reasonable prospect of success on appeal in respect of Ground 5.

Concluding Views

73.  Considering all the above, I find that none of the 5 grounds of appeal had any real or reasonable prospects of success on appeal. 

(d) The extent of prejudice to the other party

74.  In my written Decision on sentence dated 31 July 2020, I said the following :-

“21. In my decision, there was inordinate and excessive delay on the part of the 1^st and 2^nd Respondents to comply with the 2017 Order. Given the fact that there was a lapse of some 20 months (since December 2017 when the answers should have been provided), coupled with the fact that both the 1^st and 2^nd Respondents were legally represented throughout, this is a case where justice calls for appropriate sanctions be imposed upon the contemnor who persist in their continuing breaches of court orders.

22. The 2017 Order was granted in the FCMP 63/2017 proceedings whereby the three Applicants therein, also the same Applicants in these proceedings, who are the mother and 2 minor children at the age of 9 and 6, seeking financial reliefs under the Inheritance (Provision for Family and Dependants) Ordinance, Cap.481, out of the estate of the late SYC. I am minded to say the inordinate and excessive delay on the part of the 1^st and 2^nd Respondents posed serious prejudice to the three Applicants in their proceedings in FCMP 63/2017.”

75.  Given my views and observation above, I have no reservation to say that the extent of prejudice caused to the three Applicants if leave to appeal out of time was granted to the 1^st and 2^nd Respondents would be significant and repugnant to any sense of justice; if not disastrous to the three Applicants.

76.  Taking into account the contumacious attitude and litigation conduct of the 1^st and 2^nd Respondents, I am satisfied that if leave to appeal out of time was granted, the three Applicants (that is, the mother and the 2 children of the age of 6 and 9) in FCMP 63/2017 who are also the same Applicants in these proceedings, would be seriously prejudiced in their claim for financial reliefs which no Court would encourage or tolerate.  If such litigation conduct was to be condoned, I also believe that it is in contravention to the spirit and underlying objectives of the Civil Justice Reform (CJR).

Any exceptional circumstances?

77.  To complete the picture, I have also considered whether there are any exceptional circumstances where justice calls for leave to appeal, or granting extension of time to do so, be given to the 1^st and 2^nd Respondents.

78.  Given careful consideration, I do not find any exceptional circumstances exist in the present case.

Costs

79.  Since there is no evidence before this Court that the 1^st, 2^nd and 3^rd Applicants had been served with this application and no affirmation of opposition had ever been filed by them, I believe it is fair and reasonable that there should be no Order as to costs of this application.

Orders

80.  I now make the following Orders :-

(a) The 1^st and 2^nd Respondents’ Summons dated 12 August 2020 for leave to adduce further or fresh evidence and leave to appeal out of time be dismissed; and

(b) There be no Order as to costs of this application.

[** Attached Protocol dated 13 August 2018]

FCMP 129/2018

[2020] HKFC 155

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 129 OF 2018

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BETWEEN

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D E C I S I O N
(Committal : Sentence)

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Introduction

1.  On 11 June 2019, this Court handed down its Judgment after trial (“2019 Judgment”) whereby the 1^st and 2^nd Respondents were found guilty of contempt for having failed to comply with the order of this Court in FCMP 63/2017 (“2017 Order”).  Details of the 2017 Order and the related background are set out in the 2019 Judgment which I do not intend to repeat here.

2.  As directed under the 2019 Judgment, the 1^st and 2^nd Respondents filed their submissions on mitigation and the Applicants filed their submissions in reply.

3.  Solicitors for the 1^st and 2^nd Respondents referred me to the cases of Crystal Mews Ltd v. Metterick & Others [2006] EWHC 3087; Willwin Development (Asia) Co Ltd v. Wei Xing, unreported, HCMP 2946/2014; CMA CGM v. Ng Chip Choi Maurice, unreported, HCMP 2988/2014; and Re Mileage Conference Group [1966] 1 WLR 1137.

4.  Counsel for the Applicants in reply referred me to the cases of Law Lai Lan v. Tamang Prem Chandr[2018] HKCFI 536 and La DolceVita Fine Dining Co Ltd v. Zhong Lan [2019] 2 HKLRD 341.

5.  For the present purpose, I will consider the sentence in light of the established legal principles, submissions on mitigation and in reply, and all the relevant circumstances of the case.

The legal principles

6.  The applicable legal principles on sentencing for contempt of court have been set out by Au Yeung J in the case of Bruno Arboit v. Koo Siu Ying (No.2)[1] which was summarised by Deputy High Court Judge To (as he then was) in the subsequent case of Law Lai Lan v. Tamang Prem Chandr[2018] HKCFI 536 (date of judgment : 5 March 2018) where it was said :-

“Principles on sentencing

40. The starting point for consideration of sentencing this type of offence is that the court’s orders are made to be obeyed. Civil contempt of court order is a serious matter. The principles applicable to sentencing this type of offences have been usefully summarized by Au-Yeung J in Bruno Arboit as Sole Liquidator of Highfit Development Company Limited and Koo Siu Ying and Another[2] as follows:

(1) A prime consideration of the court in sentencing contempt is to signal the importance of demonstrating to the litigants that the orders of the court are to be obeyed.

(2) The object of the sentence is both to punish the conduct in defiance of the court’s order and to serve a coercive function by holding out the threat of future punishment as a means of securing the protection which the order was primarily there to do: Crystal Mews Ltd v Metterick[3] and Re Barrell Enterprises[4]. The court has to strike a balance between the two objectives.

(3) Imprisonment should be regarded as a sanction of the last resort. Any custodial term should be as short as possible and consistent with the circumstances of the case: Willwin Development (Asia) Co Ltd v Wei Xing[5]; CMA CGM v Ng Chip Choi Maurice[6].

(4) The court has an absolute discretion to suspend a sentence of imprisonment for such period and on such terms as it deems fit: CMA CGM v Ng Chip Choi Maurice[7].

(5) The court will have to consider all the circumstances of the contempt, including the nature of the order and extent of the breach; whether the contempt was contumacious or unintentional; the reasons, motives and state of mind of the contemnor; and whether the contemnor appreciates the seriousness of the deliberate breach.

(6) The court will have to consider aggravating and mitigating factors, including whether any prejudice is suffered by the plaintiff; whether the prejudice is capable of being remedied; whether the contemnor has cooperated and purged the contempt; and the personal circumstances of the contemnor.

41.  Of all the factors listed above, the two most important ones are whether the contemnor has purged the contempt and whether the plaintiff has suffered any prejudice which is irremediable.  If the contempt has been purged, the coercive function of the sentence has been spent.  What remains to be addressed is punishment for the disobedience. Purging the contempt may even affect the sentencing option. While each sentence depends on its facts and circumstances, references may still be drawn from sentences passed by the court in similar cases.  If the contempt has not been purged and was the result of wilful and contumelious conduct, the starting point is term of immediate imprisonment.  The term depends on the prejudice suffered by the applicant as a direct result of the breach of the order and whether such prejudice is irremediable.  In theory, the court has jurisdiction to impose an unspecified term of imprisonment until the contemnor purges the contempt.  Such a sentence is a very draconian one and would only be imposed for the most recalcitrant contemnor and in the worst type of cases where unless the order is complied with the applicant would suffer or continue to suffer more irremediable and serious injury or damage.”

7.  In the recent case of 張月清 v. Tsui Yiu Hei (徐耀熙), [2020] HKCFI 103[8], Deputy High Court Judge Leung referred to the principles set out in the Bruno Arboit case to be applicable in sentencing contempt of court cases.

8.  In the latest case of BT v. CBY (formerly known as YHK and also known as YCB), [2020] HKCA 426[9], the sentencing principles set out in Bruno Arboit v. Koo Siu Ying (No.2) were accepted by the parties in the Court of Appeal to be the applicable principles in sentencing contempt of court cases.

The 1^st and 2^nd Respondents’ submissions on mitigation

9.  In the written submissions on mitigation filed by the lawyers for the 1^st and 2^nd Respondents, the factors set forth are as follows[10] :-

- The 1^st and 2^nd Respondents all along were co-operative;

- They have consented to the request for Interrogatories which formed the 2017 Order;

- The 1^st Respondent had signed his 2^nd Affirmation in September 2018 whereby the contents therein were organised to answer the questions listed in the Applicants’ Interrogatories;

- Solicitors for the 2^nd Respondent had accepted service of these proceedings for committal without taking any issue as to service of court documents;

- They have consented to amendments of the Originating Summons in these proceedings whereupon leave to issue committal proceedings was granted.

10.  In addition, the 1^st and 2^nd Respondents had all along relied upon the legal advice of their then lawyers, Messrs. C.W. Chan & Co., which turned out to be erroneous[11].

11.  Finally, it was submitted by the 1^st and 2^nd Respondents that reliance upon wrong legal advice is something very important as mitigation[12].

The Applicants’ submissions in reply

12.  In reply, Counsel Miss Christine Yu submitted that the 1^st and 2^nd Respondents’ contempt is of the most egregious type which called for immediate custodial sentence and the only issue being as to the length of the sentence.  There is no mitigating factor.  

13.  Apart from setting out the factual background leading up to the need for the present proceedings, reference was also made to the 1^st and 2^nd Respondents’ conduct post 2019 Judgment for failing to file any affirmation to comply with the 2017 Order within the agreed time frame notwithstanding that further time was given under a separate consent order granted in FCMP 63/2017 for them to do so on or before 13 August 2019.

14.  The 1^st Respondent eventually filed his 2^nd Affirmation on 29 August 2019 (that is, about 16 days late) without seeking from this Court any extension of time to do so or further consent of the Applicants.

Discussion

15.  In the 2019 Judgment, both the 1^st and 2^nd Respondents’ conduct, insofar as to failure to comply with the 2017 Order was concerned,  was found to be wilful, deliberate and contumacious[13] after trial in that each of them was in contempt of court.

16.  On the mitigation factors, I fail to see how the 1^st and 2^nd Respondents could be said to be all along “co-operative” when they were contesting the Applicants’ Interrogatories application to the fullest extent. Their consensus to the Interrogatories raised could hardly be a mitigating factor when they failed or refused to provide the answers.  It was indeed an aggravating factor.  The fact that there was only a 2^nd Affirmation signed by the 1^st Respondent but not been filed[14] (emphasis added) and the Court’s views on such “unfiled” affirmation[15] had already been stated in the 2019 Judgment.  Finally, the acceptance of service of proceedings and consent to amendments could hardly be taken as mitigating factors for contempt of court cases.    

17.  The remaining mitigating factor of reliance upon former legal advice of Messrs. C.W. Chan & Co., which turned out to be erroneous, in my decision, is a non-starter.  According to the records, it was Mr. T. C. Wong of Messrs. C.W. Chan & Co., who appeared for the 1^st and 2^nd Respondents throughout in the proceedings under FCMP 63/2017.  It appeared that the same Mr. Wong commenced his own practice under the firm name Messrs. T.C. Wong & Co., and took over conduct of proceedings for the 1^st and 2^nd Respondents from Messrs. C.W. Chan & Co.  As a matter of fact, such “change” was once confirmed with Mr. Wong by this Court at one of the hearings.  Having said, there is no issue of erroneous legal advice being provided by former lawyers unless Mr. Wong himself is prepared to concede that he had advised his clients erroneously whilst he was practising at Messrs. C.W. Chan & Co.  

18.  The 1^st and 2^nd Respondents successfully procured the consent of the Applicants for them to file the Affirmation to answer the Amended Interrogatories at the late stage post 2019 Judgment might only be a mitigating factor if there was full compliance in respect of the answers provided thereunder and within the agreed extended time frame, given the fact that there had already been a delay of around 20 months.  The 2017 Order provides for the answers to be provided by 12 December 2017.     

19.  It turned out that the 1^st Respondent filed his 2^nd Affirmation only on 29 August 2019, which is 16 days after the agreed time frame of 13 August 2019.  There was no application for further extension of time by the 1^st Respondent.  There was no explanation for the 16-day delay.  There was no reference as to whether the answers provided are also given on behalf of the 2^nd Respondent despite the fact that the terms of the consent summons dated 7 August 2019 referred to both (emphasis added) the 1^st and 2^nd Respondents to have to file their answers.  Thus it is unclear as to whether there are answers forthcoming from the 2^nd Respondent later the day.  It appeared to me that the 1^st and 2^nd Respondents, notwithstanding they have the benefit of legal advice, simply take the law in their own hands and do whatever they want and whenever they wish.  As Mr. T.C. Wong all along had been representing the 1^st and 2^nd Respondents, this is far from satisfactory which the Court should not condone.

20.  Although the 1^st Respondent had filed his 2^nd Affirmation in FCMP 63/2017 on 29 August 2019 (which is 16 days after the agreed time frame on or before 13 August 2019 had expired), it remains dubious as to whether full and complete answers had been provided as he said the following in the concluding paragraph :

“15. I would submit to the Court that I shall file and serve further supplemental answer if I obtained further information regarding the estate of my father in the future.”

21.  In my decision, there was inordinate and excessive delay on the part of the 1^st and 2^nd Respondents to comply with the 2017 Order.  Given the fact that there was a lapse of some 20 months (since December 2017 when the answers should have been provided), coupled with the fact that both the 1^st and 2^nd Respondents were legally represented throughout, this is a case where justice calls for appropriate sanctions be imposed upon the contemnor who persists in their continuing breaches of court orders.

22.  The 2017 Order was granted in the FCMP 63/2017 proceedings whereby the three Applicants therein, also the same Applicants in these proceedings, who are the mother and 2 minor children at the age of 9 and 6, seeking financial reliefs under the Inheritance (Provision for Family and Dependants) Ordinance, Cap.481, out of the estate of the late SYC.  I am minded to say the inordinate and excessive delay on the part of the 1^st and 2^nd Respondents posed serious prejudice to the three Applicants in their proceedings in FCMP 63/2017.

23.  Whether the contemnor has purged the contempt and whether the aggrieved party had suffered any prejudice which is irremediable are two most important factors when deciding the option for sentencing contempt of court.  In theory, the court has jurisdiction to impose an unspecified term of imprisonment until the contemnor purges the contempt[16].

24.  Given careful consideration to the applicable principles, the submissions on mitigation and submissions in reply, the overall circumstances, the period of inordinate and excessive delay and prejudice created thereby, I am minded to say the 2017 Order had been wilfully or intentionally flouted by the 1^st and 2^nd Respondents. Immediate custodial sentence for punishment is warranted, suitable and appropriate and is the only option available to this Court.

25.  I have considered but unable to find any justification for exercising discretion to suspend any period of custodial sentence to be passed upon the 1^st and 2^nd Respondents.  Their lawyers in their written submissions on mitigation also failed to convince this Court that any custodial sentence should be suspended on any justifiable grounds.  I have reminded myself that custodial sentence is a very draconian one and would only be imposed as a last resort and for the most recalcitrant contemnor and in the worst type of cases.  It is unfortunate that the recalcitrant conduct of the 1^st and 2^nd Respondents throughout the past 20 months have brought each of them within such category.

26.  Both the Law Lai Lan and La Dolce Vita FineDining Co Ltd cases (supra) involved breaches of orders for disclosure of assets within the commercial context.  In the present case, it involves breaches of orders for disclosure of assets in the family context whereby non-compliance would hinder the progress of proceedings for financial reliefs with significant impact on two minor children.  This is, in my view, another aggravating factor in determining the appropriate sentence. 

27.  In the case of Suzanne Ruth Henderson v. Scott Hendersen[17] (HCMP No.2016/2014), it was emphasized that contempt of civil court orders is a serious matter.  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 the judges but to prevent interference with the due administration of justice.

Sentencing

28.  In passing, I wish to add that the 1^st Respondent is a professional.  He is a chartered civil engineer by occupation who would have known, even if not fully advised, the serious consequences of breaching court orders.  The 2^nd Respondent had never filed any affirmation since the 2017 Order was granted. 

29.  Taking into account all the above, I decided that an immediate custodial sentence of 3 months be imposed on each of the 1^st Respondent and 2^nd Respondent is justified, reasonable and appropriate.

Miss Christine Yu instructed by Messrs. Rowdget W. Young & Co., Solicitors for the 1^st, 2^nd and 3^rd Applicants

Mr T.C. Wong of Messrs. T.C. Wong & Co., Solicitors for the 1^st and 2^nd Respondents 

[2019] HKFC 149

FCMP 129/2018

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 129 OF 2018

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BETWEEN

_____________

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D E C I S I O N

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Introduction

1.  These proceedings are brought by the 1^st, 2^nd and 3^rd Applicants (“the Applicants”) for an Order for Committal of the 1^st and 2^nd Respondents (“the Respondents”) for contempt of Court.

2.  The Respondents are also named as the 1^st and 2^nd Respondents in another set of proceedings in FCMP No.63/2017 whereby the Applicants (also as 1^st, 2^nd and 3^rd Applicants in that proceedings) are claiming financial reliefs under the Inheritance (Provision for Family Dependants) Ordinance, Cap.481 (“Inheritance Proceedings”).

3.  By an Order dated 16/11/2017 (“2017 Order”) in the Inheritance Proceedings, the 1^st and 2^nd Respondents were ordered to file and serve an affirmation to answer the interrogatories contained in the Interrogatories for Examination of the Respondents in the Inheritance Proceedings.  The time stipulated in the said 2017 Order was 28 days which expired on 14/12/2017.

4.  The Respondents had not filed any affirmation so ordered. Leave was granted on 19/6/2018 in the Inheritance Proceedings to issue committal proceedings against the Respondents upon which these proceedings were started.  The reliefs sought in these proceedings set out in the Originating Summons dated 28/6/2018 (“OS”) read as follows :-

“(a) that the 1^st and 2^nd Respondents be committed to prison and/or fined for contempt of this Honourable Court for refusing or neglecting to obey paragraph 3 of the Order of His Honour Judge G. Own made on 16 November 2017 within the time specified therein;

(b) that such further or other Orders be made as the Court may deem just; and

(c) that the 1^st and 2^nd Respondents do pay to the Applicants the costs of and occasioned by these proceedings on an indemnity basis.”

5.  By an Order dated 20/2/2019, leave was granted to amend paragraph (a) of the OS and also adding 2 paragraphs to the Statement of Facts dated 16/5/2018 filed in the Inheritance Proceedings upon which leave was granted for issuing the present committal proceedings. 

6.  With the amendments (which are underlined below), paragraph (a) of the OS now read as follows :-

“(a) That the 1^st and 2^nd Respondents be committed to prison and/or fined for contempt of this Honourable Court for refusing or neglecting to obey paragraph 3 of the Order of His Honour Judge G. Own made on 16 November 2017 within the time specified therein; and for refusing or neglecting to answer the Amended Interrogatories filed on 31 July 2018;”

7.  The 2 additional paragraphs made to the Statement of Facts are numbered as (c) and (d) which read as follows :-

“(c) On 31 July 2018, His Honour Judge George Own granted leave to amend paragraph 3 of the Interrogatories for the Examination of the 1^st and 2^nd Respondents filed on 23 November 2017, in the manner as shown and underlined in red as below :

“3. What is the total amount of provision (whether the same consists of money, securities or other properties) that the Deceased had left by will to the 4^th, 5^thand 6^thand 7^th Respondents according to the most recent valuation ?”

(d) The Amended Interrogatories dated 31 July 2018 was served on Solicitors for the Respondents on 1 August 2018 and the Order of His Honour Judge George Own dated 30 July 2018 was served on Solicitors for the Respondents on 6 August 2018. The 1^st and 2^nd Respondents have neglected to file and serve an affirmation to answer the interrogatories at any time thereafter.”

The Respondents’ contentions

8.  The Respondents were represented by Counsel Miss Janine Cheung for this hearing.  Both Respondents chose not to give evidence at this trial.

9.  Counsel Miss Cheung in her written submissions sought dismissal of the present committal proceedings with costs on various grounds.  The grounds are as follows :-

(a) There was compliance by the Respondents by the filing of the 1^st Respondent’s Affirmation on 15/5/2018, albeit late, which by its contents had provided the answers to the Applicants’ interrogatories;

(b) The said Affirmation of the 1^st Respondent had exhibited the Executors’ Account and Schedule of Assets and Liabilities which had also provided answers to the Applicants’ interrogatories;

(c) Even if there was further or outstanding information required, the Applicants could well have applied for leave to file further interrogatories. Application for committal for contempt is only a remedy of last resort, particularly in family proceedings, and ought not to have been sought if there were alternative applications available;

(d) The Statement of Facts, though having been amended, is wholly deficient in that it failed to state with any degree of particularity how and/or in what manner the Order in question had been breached so as to enable the Respondents to properly meet the charge and defend themselves;

(e) There is nothing in the Statement of Facts (as amended) on what information the Respondents have failed to provide, such that it is clear as to what additional matters the Respondents need to be dealt with, in order to comply with the Order in question, or to purge the contempt;

(f) The Applicants had failed to establish a case of wilful and contumacious contempt of the Respondents;

(g) No penal notice had been filed or served.  No explanation had been given or exceptional circumstances shown as to why a penal notice ought to be dispensed with.

10.  Miss Cheung referred me to 2 cases, namely, Kao, Lee & Yipv. Donald Koo (2009) HKCFAR 830 and CKF v. LHL [2016] HKFC 129 whereby the other case of LPK v. HSH [2012] 2 HKLRD 1031 of this Court was considered. 

The Applicant’s Reply

11.  In reply, Counsel Miss Christine Yu for the Applicants first submitted that the 1^st Respondent’s Affirmation filed on 15/5/2018 (which was dated 2/5/2018) expressly stated at paragraph 1 therein that it was filed in opposition to the Applicants’ claims in the Inheritance Proceedings.  Hence, it could not be said that there was compliance with the 2017 Order.

12.  In any event, such Affirmation in opposition was filed grossly out of time despite the fact that it should be filed within 28 days from the date of another Order of this Court dated 25/7/2017, that is to say, before 22/8/2017.  It turns out that such Affirmation in opposition was not only some 9 months late and was also “filed” without first seeking leave of the Court to do so out of time. 

13.  As to the Respondents’ submissions that the exhibits produced under the 1^st Respondent’s Affirmation filed on 15/5/2018 (which was dated 2/5/2018) already contained the answers to the interrogatories, the Applicants contended that they should not be expected to rummage through the exhibits in order to look for answers to the Interrogatories.

14.  For the submission that there was non-disclosure of material facts when obtaining leave to issue these committal proceedings, the Applicants denied and submitted that no Summons had been issued by the Respondents to set aside the leave granted or to challenge the contents of the Statement of Facts (as amended) if the Respondents wanted to raise this as an issue.

The relevant procedural rules

15.  It is trite that the purpose behind the law of contempt is to prevent interference with the due process and administration of justice.  It is essential to demonstrate to parties in litigation that orders of the courts are to be strictly obeyed and complied with. 

16.  Since the alleged contempt touched upon non-compliance of orders made under Order 26 rule 6 of the Rules of the District Court (“RDC”), it is necessary to set out those relevant provisions.

17.  Order 26 rule 6 of the RDC provides :-

“(1) If a party against whom an order is made under rule 1 of 5(2) fails to comply with it, the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly.

(2) If a party against whom an order is made under rule 1 or 5(2) fails to comply with it, without prejudice to paragraph (1), he shall be liable to committal.

(3) Service on a party’s solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order, but the party may show in answer to the application that he had no notice or knowledge of the order.

(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal.

18.  Further, Order 26 rule 5 of the RDC provides :-

“(1) Where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer.

(2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently, the Court may make an order requiring him to make a further answer, either by affidavit or on oral examination as the Court may direct.”

19.  Since the Respondents had also raised as one of their objections to committal in that penal notice not having been endorsed or served or otherwise dispensed with, I would also set forth those relevant provisions governing service of orders prerequisite to enforcement proceedings, which include committal proceedings.   

20.  Order 45 rule 7(2), (4), (6) and (7) of the RDC provides :-

“7. Service of copy of judgment, etc., prerequisite to enforcement under r.5 (O.45, r.7)

(1) ……

(2) Subject to Order 24, rule 16(3), Order 26, rule 6(3) and paragraphs (6) and (7) of this rule, an order shall not be enforced under rule 5 unless –

(a) a copy of the order has been served personally on the person required to do or abstain from doing the act in question; and

(b) in the case of an order requiring a person to do an act, the copy has been so served before the expiration of the time within which he was required to do the act.

(3) ……

(4) There must be indorsed on the copy of an order served under this rule a notice informing the person on whom the copy is served –

(a)   in the case of service under paragraph (2) that if he neglects to obey the order within the time specified therein, or, if the order is to abstain from doing an act, that if he disobeys the order, he is liable to process of execution to compel him to obey it; and

(b)   in the case of service under paragraph (3) that if the corporation neglects to obey the order within the time so specified or, if the order is to abstain from doing an act, that if it disobeys the order, he is liable to process of execution to compel the corporation to obey it.

(5) ……

(6) An order requiring a person to abstain from doing an act may be enforced under rule 5 notwithstanding that service of a copy of the order has not been effected in accordance with this rule if the Court is satisfied that, pending such service, the person against whom or against whose property it is sought to enforce the order has had notice thereof either –

(a) by being present when the order was made; or

(b) by being notified of the terms of the order, whether by telephone, telegram or otherwise.

(7) Without prejudice to its powers under Order 65, rule 4, the Court may dispense with service of a copy of an order under this rule if it thinks it just to do so.”

21.  Further, Order 45 rule 5 of the RDC provides :-

“5. Enforcement of judgment to do or abstain from doing any act (O.45, r.5)

(1) Where –

(a) a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or, as the case may be, within that time as extended or abridged under Order 3, rule 5; or

(b) a person disobeys a judgment or order requiring him to abstain from doing an act,

then, subject to the provisions of these Rules, the judgment or order may be enforced by one or more of the following means, that is to say,

(i) with the leave of the Court, a writ of sequestration against the property of that person;

(ii) where that person is a corporation, with the leave of the Court, a writ of sequestration against the property of any director or other officer of the corporation;

(iii) an order of committal against that person o, where that person is a corporation, against any such officer.

(2) Where a judgment or order requires a person to do an act within a time therein specified and an order is subsequently made under rule 6 requiring the act to be done within some other time, references in paragraph (1) of this rule to a judgment or order shall be construed as references to the order made under rule 6.

(3) Where under any judgment or order requiring the delivery of any goods the person liable to execution has the alternative of paying the assessed value of the goods, the judgment or order shall not be enforceable by order of committal under paragraph (1), but the Court may, on the application of the person entitled to enforce the judgment or order, make an order requiring the first-mentioned person to deliver the goods to the applicant within a time specified in the order, and that order may be so enforced.”

Discussion and Analysis

22.  It is common ground that the burden of proving contempt always lies with the Applicants to the requisite standard of beyond reasonable doubt. 

23.  I noticed that the 2017 Order in the Inheritance Proceedings was a consent order made at the time when the Respondents were legally represented by Messrs. C.W. Chan & Co., who are also representing the Respondents in these proceedings.

24.  Pursuant to paragraph 3 of the 2017 Order, the 1^st and 2^nd Respondents shall file an affirmation to answer the interrogatories raised by the Applicants.  Undisputedly, the interrogatories were subsequently amended with leave of the Court granted on 30/7/2018 in the Inheritance Proceedings also with the consent of the Respondents.  Having said, this does not alter the original terms of the 2017 Order insofar as to the filing of affirmations by the 1^st and 2^nd Respondents is concerned.

25.  From reading all the documents filed with this Court in the Inheritance Proceedings, there was only the 1^st Affirmation filed by the 1^st Respondent on 15/5/2018. This is the Affirmation referred to by Counsel Miss Cheung in her written submissions that there was compliance by the Respondents in answering the Applicants’ interrogatories.  The 2^nd Affirmation of the 1^st Respondent was marked under the Inheritance Proceedings bearing the date of 10/9/2018 at the signing page was not filed with the Court even at the date of this trial.  It only came about in one of the hearing bundles (Bundle G) prepared by Respondents’ lawyers[1] with the filing date at the back sheet[2] of it left blanked.  Undisputedly, this Bundle G was only served upon Applicants’ lawyers the day before this trial within which this 2^nd Affirmation of the 1^st Respondent was included or inserted.

26.  At paragraph 1 of the 1^st Affirmation, it clearly stated that it was filed in opposition to the Applicants’ claims.  There is no reference anywhere that it was filed or intended to be filed as the affirmation to answer interrogatories pursuant to the 2017 Order.  Furthermore, the 1^st Respondent had not stated in this 1^st Affirmation that it was filed also on behalf of the 2^nd Respondent who was supposed to file an affirmation under the 2017 Order.  I do not agree with Counsel Miss Cheung’s submission that there was compliance by the Respondents by the filing of the 1^st Affirmation.  Moreover, as rightly pointed out by Counsel Miss Yu, the 1^st Affirmation was “filed” without any leave to do so out of time being sought from this Court.

27.  Given my finding against the Respondents’ contention of compliance by the filing of the 1^st Affirmation on 15/5/2018, it follows that the other submissions that the contents of the said Affirmation and the exhibits produced thereunder had provided answers to the Interrogatories becomes a non-starter. 

28.  I wish to say a few words on the 2^nd Affirmation of the 1^st Respondent dated 10/9/2018 (which does not appear in the Court file for the fact that it had never been filed).  Since the 2^nd Affirmation was neither filed with the Court nor properly served on the Applicants, it could not be accepted as evidence to prove compliance with the 2017 Order although, for this time, it was said to be made in answer to the Applicants’ Interrogatories[3].  As it was Respondents’ case that no contempt had ever been committed, I could not even consider such 2^nd Affirmation as an act to purge any contempt that this Court might have found against the Respondents at the end of the day.  In any event, there is no expression anywhere in this 2^nd Affirmation that it was made for the purpose of purging any contempt or any intend to do so. 

29.  The date of this 2^nd Affirmation (that is, 10/9/2018) is long after the 1^st Affirmation filed on 15/5/2018 (but was dated 2/5/2018) and contained an express paragraph that it was made to answer the Applicants’ Interrogatories (as amended).  As such, it renders the earlier contention that the filing of the 1^st Affirmation had achieved compliance wholly unsustainable for obvious reasons.  Had there been compliance by the filing of the 1^st Affirmation (which I do not agree), why there is a need to do the 2^nd Affirmation for the same purpose ?  The 2^nd Affirmation does not even say that it was made to supplement any answers already provided in the 1^st Affirmation which the Respondents are entitled to so supplement, even without a Court order, as provided for in Order 26 rule 5(2) of the RDC. 

30.  To complete my decision on this contention, I agree with Counsel Miss Yu that the Applicants should not be expected to rummage into Respondents’ documents and exhibits for answers to their Interrogatories, even if the 1^st Affirmation was to be accepted as properly filed for the purpose of answering interrogatories (of which there is no such finding).  This is not the way how Interrogatories in litigation were to be administered and responded. 

31.  For the Respondents’ contention over the Statement of Facts (as amended), namely, that it lacked particulars or information to enable the Respondents to meet the alleged charge or to purge the contempt is a red herring. 

32.  First, the Respondents were all along legally represented by the same firm of lawyers when the 2017 Order was made in the Inheritance Proceedings and also in the present committal proceedings.  As a matter of fact, the 2017 Order was a consent order of which the Respondents’ lawyers must have properly advised them before they gave instructions to their lawyers to consent to it.  There is no room for the Respondents now to try and argue on lack of information as to what need to be dealt with in order for them to comply with the 2017 Order.  Had there been any lack of information or particulars, the Respondents would not have consented to it.

33.  Secondly, the Statement of Facts which had been amended set forth the facts upon which the Respondents should be found liable for contempt are clear and straightforward, namely :-

(a) the refusal or neglect to file affirmation to answer interrogatories as directed under paragraph 3 of the 2017 Order; and

(b) the refusal or neglect to answer the Interrogatories (as amended) filed on 31/7/2018.

34.  In my decision, there is no room for debate as to what was required of from the Respondents when they had failed to do so.  Thus, the contention that the Statement of Facts, though having been amended, is wholly deficient without any degree of particularity simply could not stand. 

35.  The other contention that the Statement of Facts did not specify what information the Respondents had failed to provide so as to enable them to deal with in order to comply with the 2017 Order or to purge the contempt is, in my decision, a sham wholly devoid of merits.  How could the Applicants “specify” or “dictate” for the Respondents as to what information they need to provide in the contents of the affirmation required of from them or in the answers to be given by them to the Interrogatories ? 

36.  For these reasons, I find the contention that the Statement of Facts (as amended) is fundamentally flawed and defective for lack of information or particulars must fail.  The OS issued based upon the Statement of Facts (as amended) stands.  In passing, I would like to add that any contention over leave being granted upon “defective” Statement of Facts could have been the subject of debate only upon proper application being taken out rather than through Counsel’s submissions tendered at trial.  As Counsel Miss Yu rightly submitted, no such Summons had ever been issued by the Respondents.  

37.  Counsel Miss Yu referred me to the “3-stage test” established in Kao, Lee & Yip v. Donald Koo(2009) HKCFAR 830, as summarized in 52/1/16 of the Hong Kong Civil Procedure for approaching committal for civil contempt by reason of breach of a court order.  First, the Court has to construe the relevant court order to ascertain its meaning and operation.  Secondly, to determine whether the defendant has in fact complied with the order as so construed.  Thirdly, to consider any failure to comply was accompanied by a state of mind necessary to establish punishable contempt.

38.  In the present case, the 2017 Order simply requires the Respondents to file an affirmation to answer the interrogatories raised.  The meaning and operation of the terms of the 2017 Order are plain and clear, namely, to file an affirmation.  This had not been done.  As to the state of mind factor, I find against the Respondents.  They had all along been legally represented who must have the benefit of legal advice as to the need to comply with court orders and also the consequences of flouting court orders.  Nonetheless, they had failed to comply with the 2017 Order without any justifiable reasons being shown.  I unreservedly find the Respondents’ failure to comply the 2017 Order was wilful, contumacious and accompanied by a state of mind sufficient to establish punishable contempt.  

39.  Now I will deal with the contention as to the lack of penal notice in the 2017 Order.

40.  Counsel Miss Yu submitted that O.45 r.7(2) of the RDC for service of orders prerequisite to enforcement is subject to Order 26 rule 6(3) in respect of orders to answer interrogatories.  Thus penal notice is not required for the 2017 Order which is an order requiring the Respondents to answer interrogatories and therefore falls squarely under Order 26 rule 6(3).  As a fallback position, Miss Yu submitted that this Court has the power to dispense with the requirements of a penal notice even though no formal summons and affirmation had been taken out (Kao, Lee & Yip v. Donald Koo Hoi Yan(2009) 12 HKCFAR 830).

41.  I accept Miss Yu’s interpretation of Order 45 r.7(2) is correct.

42.  As to her fallback position so submitted, in the case of LPK v. HSH[2012] 2 HKLRD 1031 where this Court set aside leave granted for commencement of committal proceedings and dismissed the originating summons issued thereupon, had considered the court’s discretionary powers under Order 45 r.7(6) and 7(7) to dispense with service of orders whereupon enforcement proceedings were brought.  This Court cited the decision of Hon Chung J in the case of ChouYi Feng v. Chou Yi Chen (unreported, HCA 4393/2001) where His Lordship at paragraph 28 of the Judgment had said:

“[28] The following propositions can be distilled from the above observations and/or conclusions of the Hong Kong court of appeal (in Excel Noble) and the English court of appeal (in Davy International, Turner and Hill Samuel & Co Ltd):

(a) Order 45 r.7(6) applies to prohibitory orders and the discretion thereunder is only available when the conditions prescribed by it are met;

(b) Order 45 r.7(7) however confers an unfettered discretionary power and can be exercised whenever it is just to do so;

(c) the old authorities before the changes to the Rules (made in England in the mid-1960’s) can no longer be relid upon to fetter the court’s discretion under O.45 r.7(7)”

43.  I noted that Respondents’ Counsel Miss Cheung in her written submissions did not take any issue as to the interpretation of Order 45 rule 7(2) submitted by Counsel Miss Yu.  This is fair and correct.

44.  Apart from Order 26 rule 6(3) which provides for service on a party’s solicitors of an order to answer interrogatories shall be sufficient service to found committal against the disobedient party, subject to whether that party is able to show that he or she had no notice or knowledge of the order, Order 45 rule 7(2) is also subject to rules (6) and (7) of the same Order.  The court’s discretion as to dispensing with service of the order depends upon the nature of the order in question, whether it is prohibitory or otherwise (see ChouYi Feng v. Chou Yi Chen, supra).  

45.  In the present case, the 2017 Order directed the Respondents to file and serve affirmation to answer interrogatories.  This is clearly not prohibitory by nature.  Thus this Court’s discretion to dispense with service of the 2017 Order is within the scope of Order 45 rule 7(7) which would be unfettered.

46.  The Respondents have had knowledge of, and indeed had consented to, the terms of the 2017 Order as they had all along been legally represented by the same firm of lawyers upon whom the 2017 Order (without penal notice) was served.  Should the lack of penal notice on the 2017 Order be an issue for commencement of the present committal proceedings, it is my decision that since this Court has unfettered discretion to dispense with service of the 2017 Order (see ChouYi Feng v. Chou Yi Chen, supra), such issue simply does not exist.   

47.  I find the contention of lack of penal notice fails.

48.  The Respondents’ other contention is that committal proceedings should only be taken as a remedy of the last resort.  The Applicants should and could have sought for further interrogatories or take out any other alternative applications or even sought for an unless order. 

49.  With my finding that the 1^st Respondent’s affirmation filed on 15/5/2018 (but dated 2/5/2018) not be accepted as an affirmation filed pursuant to the 2017 Order, there is simply no basis for the Applicants to seek further interrogatories when no answer had ever been provided.  This is not a case of insufficient answers were provided.  This is a case of no answer was provided. It is unscrupulous for the Respondents who are legally represented throughout in the Inheritance Proceedings to first consent to the terms of the 2017 Order and, having acted in breach of it without any remorse or regret, then sought to argue that an unless order or other alternative applications should have been made by the Applicants to compel their compliance.  Such contumacious conduct simply flies in the face of the Court.

50.  I find the Respondents’ contention of further interrogatories or other alternative applications or unless orders should be obtained prior to seeking committal for contempt completely devoid of merits and must fail.   

Conclusion

51.  I am satisfied that the Applicants have successfully proved to the requisite standard of beyond reasonable doubt that the 1^st and 2^nd Respondents’ failure to comply with the 2017 Order to file an affirmation to answer the Interrogatories (as amended) was wilful, deliberate and contumacious conduct sufficient for this Court to find each of them to be in contempt of Court. 

52.  I will reserve sentence to a date to be fixed after the 1^st and 2^nd Respondents have filed and served written submissions on mitigation within 21 days from the date of this Decision.  The Applicants do have leave to file and serve their written submissions in reply (if so advised) within 21 days thereafter.

53.  Given the outcome of these proceedings, I ordered that the 1^st and 2^nd Respondents do pay the Applicants’ costs of and occasioned by these committal proceedings, including all costs reserved, on indemnity basis to be taxed if not agreed.

54.  This is a costs order nisi which will become absolute if no application is filed to vary the same within 14 days from the date of this Decision.

Miss Christine Yu instructed by Messrs. Rowdget W. Young & Co., Solicitors for the 1^st, 2^nd and 3^rd Applicants

Miss Janine Cheung instructed by Messrs. C.W. Chan & Co., Solicitors for the 1^st and 2^nd Respondents