Ngai Chu v Wong Kam Shing

CourtDistrict Court (Hong Kong)
Judgment Date07 December 2005
Judgement NumberDCMP4219/2004
Subject MatterMiscellaneous Proceedings
DCMP004219/2004 NGAI CHU v. WONG KAM SHING

DCMP4219/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 4219 OF 2004

BETWEEN

  NGAI CHU Plaintiff
  and  
  WONG KAM SHING Defendant

___________________________

Coram: H H Judge Lok, in Court

Date of Hearing: 7 December 2005

Date of Judgment: 7 December 2005

______________________

J U D G M E N T

______________________

1. The Plaintiff was injured in an industrial accident on 24 April 2002, and he wished to call the Defendant, who was his co-worker at the time of the accident, as his witness in his claim for employees’ compensation. However, after the issuance of the Writ of Subpoena, the Defendant failed to attend the trial starting on 22 November 2004. Hence, the Plaintiff brought the present contempt proceedings against the Defendant for refusing or failing to attend the trial in the relevant employees’ compensation proceedings, DCEC801/2003 (“the EC Case”), under the Writ of Subpoena dated 2 November 2004.

2. It is common ground that the Defendant failed to attend the trial. The main issues in the present case are as follows:

(1) whether the Writ of Subpoena was properly served on the Defendant; and

(2) whether the Defendant did have the requisite state of mind at the relevant time which satisfied the mental element for contempt.

The Plaintiff’s evidence

3. The Plaintiff called 2 witnesses to testify against the Defendant. The first is one Mr Lai Cheung, who was working as a general assistant in the Legal Aid Department from June 2002 to March 2005. As the Plaintiff was legally aided in the EC case, Mr Lai was assigned to serve the Writ of Subpoena on the Defendant. At around 5.50 pm on 9 November 2004, he arrived at the Defendant’s flat at Room 3406, Ying Kai House, Fu Tai Estate, Tuen Mun. When he arrived, the Defendant was not there. However after about 15 minutes, a man appeared. Mr Lai asked that man whether he was the Defendant, and he replied in the affirmative. Mr Lai then explained the contents of the Writ of Subpoena to the Defendant, and told him that he had to attend court in due course. After hearing so, the Defendant was fierce, unco-operative and refused to accept service of the Writ of Subpoena. Mr Lai therefore put the same on the ground in front of him.

4. The trial of the Plaintiff’s EC Case was actually put in the warned list. After the Legal Aid Department knew about the actual hearing date, Mr Lai was instructed to serve the Letter of Notification of the Hearing Date on the Defendant on 19 November 2004. On that occasion, the Defendant was not in his flat, and so Mr Lai inserted the Letter of Notification in the letterbox of the Defendant’s flat.

5. On 9 December 2004, Mr Lai proceeded to serve the originating summons of the present contempt proceedings on the...

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