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Kot See For v Chan Leong Hang

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date07 May 2021
Neutral Citation[2021] HKCFI 1305
Year2021
Judgement NumberHCMP2323/2020
Subject MatterMiscellaneous Proceedings
CourtCourt of First Instance (Hong Kong)
HCMP2323A/2020 KOT SEE FOR v. CHAN LEONG HANG

HCMP 2323/2020

[2021] HKCFI 1305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2323 OF 2020

______________________

IN THE MATTER of an application by KOT SEE FOR (葛師科) against CHAN LEONG HANG (陳亮行) for an order of committal

______________________

BETWEEN
KOT SEE FOR (葛師科) Plaintiff
and
CHAN LEONG HANG (陳亮行) Defendant

______________________

Before: Hon Lisa Wong J in Court

Date of Hearing: 6 May 2021

Date of Sentence: 6 May 2021

Date of Reasons for Sentence: 7 May 2021

___________________________________

REASONS FOR SENTENCE

___________________________________

1. The first hearing of the originating summons herein took place on 24 February 2021 in the absence of the defendant. On the grounds set out in the Reasons for Judgment handed down on 26 February 2021 (“Judgment”), I found the defendant guilty of contempt of court and awarded the plaintiff the costs of these proceedings on an indemnity basis. The contempt was constituted by the defendant’s refusal or failure to perform the disclosure order (“Disclosure Order”) ancillary to a proprietary/Mareva injunction granted against the defendant on 26 November 2019 in HCA 2208/2019 (“Injunction Order”) regarding 3 sums of money (adding up to $15 million) (“Sums”) said to have been defrauded from the plaintiff and paid into the defendant’s bank account. A warrant for the defendant’s committal was issued, which led to his apprehension on 2 March 2021. The defendant was duly brought before this court for mention on the same day. He was subsequently released on bail pending sentence on conditions, inter alia, that he paid $100,000 into court.

2. At the sentencing hearing yesterday, I committed the defendant for a term of imprisonment of 6 months, suspended for 14 days for a last opportunity to the defendant to comply with the Disclosure Order. If the defendant persists in his non-compliance with the Disclosure Order, the plaintiff shall apply to this court for an order that the defendant be taken into custody immediately. I also ordered the defendant to pay the plaintiff’s costs of these proceedings since the hearing on 24 February 2021 on an indemnity basis.

3. I now give reasons and summarily assess costs.

Relevant sentencing principles

4. The principles on sentencing for contempt of civil court orders are established:

(1) Court orders are made to be obeyed.

(2) Contempt of civil court orders is a serious matter.

(3) In sentencing, the court seeks to signal to litigants in general, not just the contemnor, that the orders of these courts are to be followed.

(4) The court has to balance between punishing the conduct in defiance of the court’s order and holding out the threat of future punishment as a means of securing the protection for which the order was in the first place made.

(5) As circumstances may vary greatly, the sentence for contempt may range from a fine to a term of imprisonment. Imprisonment should be regarded as a sanction of the last resort. Any custodial sentence should be as short as possible and consistent with the circumstances of the case.

(6) The court will consider if there are aggravating/mitigating factors and acts purging the contempt, if any. The following is an inexhaustive list of relevant factors:

(a) the nature of the order;

(b) the breach in question and the extent thereof;

(c) whether the contempt was contumacious or unintentional - the reasons, motives and state of mind of the contemnor;

(d) whether the contemnor appreciates the seriousness of the breach;

(e) whether the contempt has caused the plaintiff any irredeemable prejudice;

(f) whether the contemnor has been cooperative.

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 contempt and whether the plaintiff has suffered any irremediable prejudice are particularly weighty considerations. If the contempt was wilful and contumelious and has not been purged, the starting point is a term of immediate imprisonment: Law Lai Lan v Tamang Prem Chandr[2018] HKCFI 536, [41] per Deputy High Court Judge To.

6. In the case of a breach of an injunction order, subject to the presence of mitigating factors, the starting and primary penalty is imprisonment (normally measured in months). Information concerning assets is uniquely within the defendant’s knowledge and is pertinent to police a Mareva injunction. A fine is inappropriate when the defendant has not purged or offered to purge his contempt: La Dolce Vita Fine Dining Co Ltd v Zhang Lan [2019] 2 HKLRD 341,...

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