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Koo Ming Kown v Chan Chi Mong, Hopkins

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date21 December 2020
Neutral Citation[2020] HKCFI 3128
Year2020
Judgement NumberHCMP937/2020
Subject MatterMiscellaneous Proceedings
CourtCourt of First Instance (Hong Kong)
HCMP937A/2020 KOO MING KOWN v. CHAN CHI MONG, HOPKINS

HCMP 937/2020

[2020] HKCFI 3128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 937 OF 2020

________________________

IN THE MATTER of an Application on behalf of KOO MING KOWN against CHAN CHI MONG, HOPKINS for an Order of Committal
and
IN THE MATTER of an Order dated 3rd June 2020 granted in High Court Action No 2337 of 2016
and
IN THE MATTER of Order 52 rule 3, Rules of the High Court

________________________

BETWEEN

KOO MING KOWN Applicant
and
CHAN CHI MONG, HOPKINS Respondent

________________________

Before: Hon Au-Yeung J in Court
Date of Hearing: 14 December 2020
Date of Judgment on Sentence: 21 December 2020

________________________

JUDGMENT ON SENTENCE

________________________

Introduction

1. This judgment is to be read with my judgment dated 4 November 2020 whereby I found the charge of contempt of court proved beyond reasonable doubt against the Respondent.

2. The Order that was breached required the Respondent to produce his PhD certificate (“Certificate”) and to provide further and better particulars. The contempt in relation to provision of further and better particulars was purged on 29 October 2020, about a week before the hearing of the committal proceedings took place.

3. The contempt in relation to the Certificate has not been purged. The Respondent only produced an apostillized copy of the Certificate. Inexplicably, it now appears that the Respondent has 2 “original” Certificates, which were never produced.

Undisputed principles on sentencing

4. The relevant sentencing principles have been summarised in Bruno Arboit as sole liquidator of Highfit Development Co Ltd v Koo Siu Ying (No 2) [2016] 3 HKLRD 154 at §§2 to 8, Au-Yeung J:

“2. 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.

3. 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.

4. The sentence for contempt may range from a fine to a term of imprisonment. The UK Contempt of Court Act 1981 imposes a maximum term of 2 years’ imprisonment but Hong Kong does not have that statutory limit.

5. 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.

6. The court may suspend a term of imprisonment for such period or on such terms as the court deems fit: … Order 52, rule 7. 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.

7. The court will consider if there are:

(a) Aggravating factors;

(b) Mitigating factors; and

(c) Acts to purge the contempt.

8. Relevant factors (which are not exhaustive) include:

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

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

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

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

(e) Whether the contemnor has cooperated.”

5. The Court should examine the context in which the contempt had arisen, the effect of the breach on the Applicant, the aggravating factors, the mitigating factors and the personal circumstances of the respondent.

6. Where there are aggravating factors of the respondent being uncooperative and dragging his feet before the application for leave to commit for contempt was made, an immediate custodial sentence of 3 months may be appropriate: see §43 of Bruno Arboit v Koo Siu Ying (No 2), supra.

7. Where there were two or more distinct breaches, either consecutive or concurrent terms may be appropriate and it is incumbent on the court to clarify which approach is being adopted: Miller on Contempt of Court, 4th ed, §12.115.

8. The burden of proving that the contempt has been purged rests on the respondent. It does not have to be beyond reasonable doubt but there must be credible evidence to satisfy the court of the purging.

Context in which the contempt has arisen

9. The Order was simple in terms. There should be no difficulty in understanding what needed to be done. The Respondent has had many chances before and after commencement of the contempt proceedings to comply with the Order, which were not taken. He had been warned by the Applicant’s solicitors of the serious consequences of non-compliance by letters. Despite DHCJ Le Pichon’s remark that he was prima facie in contempt, he persisted in his non-compliance. He even evaded service of the originating summons.

10. The Respondent claimed that he had a lapse of judgment and delayed in giving instructions to his solicitors to comply with the Order. These were hollow excuses as he had knowledge of the Order and had not delayed in seeking to appeal against other parts of DHCJ Le Pichon’s order.

Steps to purge the contempt

11. The further and better particulars were provided only 4 months after the deadline under the Order.

12. As for the Certificate, the Respondent (or his former solicitors at one time) has all along been in possession of what he considered to be the original until he handed it to his current solicitors to comply with the Order.

13. The Respondent did purport to produce his Certificate but it turned out to be an apostillized copy (“Apostillized Certificate”). He averred that this was the only certificate that he had ever been given upon completion of his doctorate degree at the European University of Ireland. He had always thought that it was the original.

14. After the Apostillized Certificate was produced for inspection, the Applicant’s solicitors quickly drew to the Respondent’s attention that the original certificate (“1st Certificate”) had been produced earlier in a related case, HCA 1619/2014. The Applicant sought the Respondent’s consent to produce a copy of the photo of the 1st Certificate to the Court.

15. That suggestion was brushed aside by the Respondent on the excuse that no leave has been obtained from the Court to disclose documents used in another case. The Respondent maintained that the 1st Certificate was the same as the Apostillized Certificate.

16. On the morning of this hearing, the Respondent lodged his 3rd affidavit and emails from the Applicant, which disclosed without doubt that the 1st Certificate and Apostillized Certificate were not the same. The material visual differences of the 2 Certificates are that:

(a) The golden seal on the left bottom of each...

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