陳玉屏 v. LIEW SHUK FUI

DCMP 720/2020

[2021] HKDC 712

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO.720 OF 2020

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Reasons for Judgment

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1.  This is the sentencing hearing for the defendant to answer her contempt. At the conclusion of the hearing, I have given the order that:

a) The court would impose a sentence of 28 days’ imprisonment to be suspended for 2 years; and

b) Costs be awarded to the plaintiff on an indemnity basis summarily assessed at HK$210,000 (inclusive of Counsel’s fees item E1 of the summary bill of costs assessed at HK$60,000 and item E2 at HK$45,000).

2.  I have also directed that the reasons for judgment be handed down in writing. These are the reasons.

3.  The background of this case has been set out in the Judgment dated 10 September 2020 and needs not be repeated here.

4.  On 18 March 2021, the defendant was brought before the court to answer her contempt.

5.  During the hearing, the defendant raised various bizarre accusations (though not appeared to be against the plaintiff in particular): for example, she claimed that “gangsters” were breaking into her flat and starting a brothel, and neighbours were “shinning” radiation into her flat etc.

6.  I have raised concerns about the defendant’s mental capacity to make representations on her own behalf, and whether she has the necessary mens rea in committing civil contempt of court.

7.  Nevertheless, the defendant also informed the court that despite having been “taken to hospitals”, doctors have never taken steps to detain her for treatment (she said she was given medications at various times) and she appeared to be capable of looking after herself living on her own.

8.  As there was no medical evidence before the court concerning the defendant’s mental state and the extent of her mental capacity, I decided to give the defendant a chance to purge her contempt. With the agreement of the plaintiff, I gave the options for the plaintiff to either comply with the court order by immediately removing all offending materials on her front gate, or to face a custodial sentence pending medical examination. In either case, the hearing would be adjourned to 1 April 2021 (either to check her compliance or to review the medical report into her mental capacity).

9.  The defendant appeared to understand and readily agreed to the first option. She informed the court that she would remove the offending materials and to return to court on 1 April 2021. She also appeared to understand my warning that the situation would be reviewed at the return date and if she failed to purge her contempt, she would be put into custody pending medical examination.

10.  On 1 April 2021, the defendant attended the hearing and the plaintiff confirmed that all the offending materials have been removed in compliance with the court order stated in the Originating Summons.

11.  It would appear, therefore, that despite the defendant’s rather bizarre beliefs, she was quite capable of understanding the court order and the consequence of contempt of court, and had acted appropriately under the circumstances.

12.  As for the appropriate sentence, the counsel for the plaintiff has taken me to the cases of Secretary for Justice v Chan Oi Yau Riyo [2020] 3 HKLRD 494 and Oriental Daily Publisher Ltd v Ma Chiu Sing [2009] 2 HKLRD 558.

13.  There was a clear contempt of court but I agree that an immediate custodial sentence was inappropriate given the defendant’s old age and (albeit very belated) action to purge the contempt. However, given that she had breached the court order with attempts to evade service for more than 5 years, there was obviously a need for a suitable deterrent.

14.  I would therefore consider it appropriate for the court to impose a sentence of 28 days’ imprisonment to be suspended for 2 years.

15.  As for costs, it was usual under the circumstances to award costs on an indemnity basis and I saw nothing in this case to consider otherwise.

DCMP 720/2020

[2020] HKDC 779

IN THE DSTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 720 OF 2020

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JUDGMENT

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1.  This is an application for an order of committal against the defendant on the grounds that she had continued to breach an injunction granted by Deputy District Judge Timon Shum on 5 June 2015.

2.  The injunction, as stated in an Amended Order, in summary, restrained her from putting up or displaying various disturbing objects, messages and drawings on the entrance of Flat B7, 14/F, Block B, Tak Bo Garden, No. 3 Ngau Tau Kok Road, Kowloon (the “Premises”), from making loud noises within the Premises and pouring liquid in the public areas where the Premises was situated etc.

3.  The Premises was the defendant’s last known address.

Procedural history

4.  There was some procedure history in this case which is not relevant to the current application which I need not repeat here. Suffice to say that leave to apply for order of committal against the defendant was granted on 8 August 2019. Due to the current Covid-19 situation, there was further delay in the hearing.

Service of documents

5.  It is of note that the defendant has a long history of evading personal service: there has been a previous order from the Court of Appeal for personal service to be dispensed with.

6.  The affirmation of the clerk of the plaintiff’s solicitors, Mr Ho Kuen Lam (as I translate), documented three attempts to effect personal service of the originating summons and supporting documents on the defendant. It is clear that the defendant has been evading personal service and I am satisfied that the plaintiff has exhausted all reasonable attempts to do so.

7.  Instead, the plaintiff has attached the relevant documents to the entrance gate of the Premises on one occasion and inserted them into the post box of the Premises on another. Under the circumstances, I am satisfied that the defendant is well aware of today’s hearing as well as its intent and purposes.

8.  I would therefore order that the personal service of the originating summons and supporting documents be dispensed with and the hearing should proceed.

Order of committal

9.  In order to obtain an order of committal, the plaintiff must prove its case to the criminal standard.

10.  The 2^nd and 3^rd Affirmations of the plaintiff, including various photographs exhibited, clearly documented a continual breach of the injunction since it was made. Such breaches include a continual display of disturbing messages and objects (including on one occasion, what appeared to be used face masks) at the entrance of the Premises. There were also occasions when loud noises were made within the Premises, and vile smelling liquid poured outside the entrance of the Premises.  

11.  I am therefore satisfied that the defendant has continued to breach the injunction and, as such, I held that the court should make an order of committal against the defendant.

12.  However, the defendant has failed to attend today’s hearing so the court did not have the opportunity to hear her case and explanation.

13.  As such, I will not impose any punishment at this stage but will instead issue a warrant of arrest requiring the Chief Bailiff and his assistant and the Commissioner of the Correctional Services and the Commissioner of Police and each and every one of his officers in Hong Kong to arrest the defendant so that she may be held in custody until such time as she may be brought before this court to answer for her contempt.

14.  Further, as I do not have the opportunity to hear the defendant’s case, I will not impose any order for costs at this stage. I order that the costs of today’s hearing be reserved.