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張月清 v Tsui Yiu Hei

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date08 January 2020
Neutral Citation[2020] HKCFI 103
Judgement NumberHCMP602/2019
CourtHigh Court (Hong Kong)
Subject MatterMiscellaneous Proceedings
HCMP875A/2018 張月清 v. TSUI YIU HEI

HCMP 875/2018,
HCMP 602/2019 and
HCMP 845/2019
(Heard Together)
[2020] HKCFI 103

HCMP 875/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 875 OF 2018

____________

IN THE MATTER OF an application on behalf of 張月清 against TSUI YIU HEI (徐耀熙) for an Order of Committal

____________

BETWEEN

張月清 Plaintiff
and
TSUI YIU HEI (徐耀熙) Defendant

____________

AND HCMP 602/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 602 OF 2019

____________

IN THE MATTER OF an application on behalf of 張月清 against TSUI YIU HEI (徐耀熙) for an Order of Committal

____________

BETWEEN

張月清 Plaintiff
and
TSUI YIU HEI (徐耀熙) Defendant

____________

AND HCMP 845/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 845 OF 2019

____________

IN THE MATTER OF an application on behalf of 張月清 against TSUI YIU HEI (徐耀熙) for an Order of Committal

____________

BETWEEN

張月清 Plaintiff
and
TSUI YIU HEI (徐耀熙) Defendant

____________

(Heard Together)

Before: Deputy High Court Judge Leung in Court

Date of Hearing: 30 December 2019

Date of Reasons for Judgment: 8 January 2020

________________________

REASONS FOR JUDGMENT

________________________


1. On 13 December 2019, this court handed down the judgment (“the Judgment”) whereby the defendant was found guilty of the charges of contempt in HCMP 875/2018 and HCMP 845/2019 whereas the charge of contempt in HCMP 602/2019 was not proved beyond reasonable doubt. These are my reasons for the sentence I imposed on the defendant at the end of the hearing on 30 December 2019. The Judgment should be read in order to understand these reasons for sentencing. For the present purpose, I adopt the same defined and abbreviated terms in the Judgment.

The principles

2. The applicable principles were set out in Bruno Arboit v Koo Siu Ying (No.2) [2016] 3 HKLRD 154 at §§2-11. They were summarised by DHCJ To in HCMP 2402/2017 (5 March 2018), which was cited by this court in the judgment in Law Lai Lan v Tamang Heshna; Ghising Chhegu Maya, HCMP 2260/2018 & HCMP 2261/2018 (19 September 2019) as follows:

“40. …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 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 and Re Barrell Enterprises. 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; CMA CGM v Ng Chip Choi Maurice.

(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.

(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.

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 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.”

Consideration

3. In view of the nature of these proceedings, and therefore the burden of the plaintiff to prove the defendant’s breach beyond reasonable doubt, the defendant’s denial in the course of putting the plaintiff to proof per se is not an aggravating factor in considering sentencing. Insofar as sentencing is concerned, that the charges were denied but proved means that the defendant now does not have the benefit of mitigation that he would have had, had he admitted the breach.

4. Whilst the defendant is technically a first offender, he had the prior experience of being cited for contempt of the Interlocutory Injunction, which contained the prohibition similar to that in the Final Injunction...

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