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China Shanshui Cement Group Ltd And Others v Zhang Caikui And Another

Judgment Cited authorities 1 Cited in 1 Precedent Map Related
Vincent
Judgment Date31 May 2018
Neutral Citation[2018] HKCFI 1192
Year2018
Judgement NumberHCMP1574/2016
Subject MatterMiscellaneous Proceedings
CourtCourt of First Instance (Hong Kong)
HCMP1574D/2016 CHINA SHANSHUI CEMENT GROUP LTD AND OTHERS v. ZHANG CAIKUI AND ANOTHER

HCMP 1574/2016

[2018] HKCFI 1192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO1574 OF 2016

____________

BETWEEN
CHINA SHANSHUI CEMENT GROUP LIMITED
(中國山水水泥集團有限公司) 		1st Plaintiff
CHINA SHANSHUI CEMENT GROUP (HONG KONG) COMPANY LIMITED
(中國山水水泥集團(香港)有限公司) 		2nd Plaintiff
CHINA PIONEER CEMENT (HONG KONG) COMPANY LIMITED 3rd Plaintiff
and
ZHANG CAIKUI (張才奎) 1st Defendant
ZHANG BIN (張斌) 2nd Defendant

____________

Before: Hon Au-Yeung J in Court
Date of Hearing: 23 May 2018
Date of Reasons for Sentence: 31 May 2018

__________________________________

REASONS FOR SENTENCE

__________________________________

Introduction

1. This decision should be read with my judgment handed down on 28 February 2018 (“the Judgment”), by which I found the Zhangs guilty of contempt of court.

2. This was the sentencing hearing. The Zhangs were absent. Ms Lam of Deacons filed a summons seeking to adduce a draft affirmation of Zhang senior’s driver and Zhang junior respectively to explain the Zhangs’ absence. I dismissed the summons for reasons orally given.

3. The Plaintiffs were keen to proceed with sentencing and asked the court to consider a fine or imprisonment. They did not press for an order to debar the Zhangs from defending the underlying action in HCA 2880/2015. I thus proceeded to hear the mitigation.

Legal principles on sentencing

4. The principles have been set out in my decision in Arboit v Koo Siu Ying (No 2) [2016] 3 HKLRD 154 dated 18 May 2016, §§2-10:

(a) The starting-point is to acknowledge that contempt of civil court orders is a serious matter and that court orders are made to be obeyed. A prime consideration of the court in sentencing contempt is to signal importance of demonstrating to litigants that the orders of these courts are to be obeyed. By “litigants”, it is clearly referring to litigants in general and not just the contemnor himself.

(b) The object of the sentence is both to punish 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. The court has to balance the 2 objects.

(c) The sentence for contempt may range from a fine to a term of imprisonment.

(d) Imprisonment should be regarded as a sanction of the last resort. Any custodial sentence should be as short as possible consistent with the circumstances of the case.

(e) The court may suspend a term of imprisonment for such period or on such terms as the court deems fit. This is an “absolute discretion” but it would be difficult to think of circumstances where a suspended order should be made when nothing further remains to be done to comply with the order.

(f) The court will consider if there are aggravating factors, mitigating factors, and acts to purge the contempt.

(g) Relevant factors (which are not exhaustive) include:

(i) The nature of the order and breach in question, and the extent of the breach.

(ii) Whether the contempt was contumacious or unintentional, the reasons, motives and state of mind.

(iii) Whether the claimant has been prejudiced by virtue of the contempt and whether the prejudice is capable of remedy.

(iv) Whether the contemnor appreciates the seriousness of the deliberate breach.

(v) Whether the contemnor has cooperated.

(h) As circumstances of contempt vary greatly, there is little mileage to be gained from the citation of other cases on sentence.

5. The approach I shall adopt is to ascertain the extent of the breach as found by the court, the context in which the contempt had arisen, effect of the breach on the Plaintiffs, explanations of the Zhangs, the aggravating factors, the mitigating factors, acts to purge the contempt and the personal circumstances of the Zhangs.

The extent of the breach found by the court

6. By the Judgment, I found Zhang senior guilty of the following charges:

Charge 1: Failure to comply with an order restraining the concealment from the Plaintiffs or destroying or tampering with the Plaintiffs’ records, including those listed in Schedule 2.

Charge 2: Failure to comply with an order to forthwith deliver over to the Plaintiffs’ solicitors any of the Plaintiffs’ records or copies thereof which were in their possession, custody or control.

Charge 3: Failure to comply with an order to answer in writing 5 questions containing the whereabouts of the Plaintiffs’ records and to provide an affirmation confirming those answers.

Charge 4: Failure to comply with an order giving continued effect to the orders forming the subject-matter of Charges 1‑3.

Charge 6 (1st limb): Failure to comply with an order restraining D1 from acting upon or exercising any power or entitlement pursuant to amendments to the Articles of Association of Shandong Cement.

Charge 7: Failure to comply with an order to execute the court-approved corrective amendments to Shandong Cement’s Articles of Association.

7. Zhang junior was found guilty of Charges 1-3 only.

Context in which the contempt has arisen

8. Firstly, Charges 1-3 (and 4) formed one category. The acts for which the Zhangs were complained of concerned the Plaintiffs’ documents, not the Zhangs’. Having been removed from office, the Zhangs simply had no reason to retain the documents. Charges 6 (1st limb) and 7 formed another category and were a continuance of Zhang senior’s defiant conduct under Charges 1-3.

9. Secondly, the Zhangs did not appear at the trial on liability for contempt. They did not appear at this hearing either, despite my express direction for their personal attendance in the Judgment. Viewed together with my reasons for rejecting the draft affirmations, the Zhangs simply had no intention to come before this court to face the consequence of their contempt.

10. Thirdly, because the Zhangs had not presented themselves for cross-examination at the trial, their affirmations (items 16, 31 & 34 in the Defendants’ hearing bundle) were excluded from the evidence (“the excluded affirmations”). However, at this hearing, the Zhangs relied on the excluded affirmations to “explain” (not to “excuse”) their conduct or as acts of purging the contempt. This attempt to adduce the excluded affirmations through the backdoor should not be allowed.

11. Fourthly, the contents of the excluded affirmations, if accepted, could have exempted the Zhangs from liability for contempt for part or all of the Charges. One wonders why they did not attend the trial to try and get the best possible results for themselves? Even in the affirmations they have filed for the purpose of mitigation, the Zhangs have not explained why they did not attend the trial.

12. The irresistible inference was that the Zhangs dared not face the cross-examination for fear of the truth being exposed and the truth would be against them. Accordingly, I place no weight on the excluded affirmations.

13. Fifthly, Zhang senior joined the Shandong Cement Plant some 50 years ago in 1968 and dedicated his entire career to building the...

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1 cases
  • Kot See For v Chan Leong Hang
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 7 Mayo 2021
    ...See Arboit v Koo Siu Ying (No 2) [2016] 3 HKLRD 154, [2]-[10] per Queeny Au-Yeung J; China Shanshui Cement Group Ltd v Zhang Caikui [2018] HKCFI 1192, [4] per Queeny Au-Yeung J; JSC BTA Bank v Solodchenko (No 2) [2012] 1 WLR 350, [45] per Jackson LJ. 5. Whether the contemnor has purged the ......

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