Ngai Chu v Wong Kam Shing

Judgment Date07 December 2005
CourtDistrict Court (Hong Kong)
Judgement NumberDCMP4219/2004
Subject MatterMiscellaneous Proceedings






  NGAI CHU Plaintiff
  WONG KAM SHING Defendant


Coram: H H Judge Lok, in Court

Date of Hearing: 7 December 2005

Date of Judgment: 7 December 2005




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 Defendant. At this time, the Defendant, whom he saw earlier on 9 November 2004, appeared in his flat. Upon seeing Mr Lai, the Defendant scolded him in foul language and refused to accept service. Mr Lai then threw the originating summons through the door into the Defendant’s flat.

6. The Plaintiff’s second witness is Madam Li Yuk-king, who is a law clerk working in the Legal Aid Department. According to her, she called the Defendant on his mobile phone on 20 November 2004, reminding him to attend the trial of the EC case on 22 November 2004. Even though the Defendant confirmed that he had received the Writ of Subpoena and the Letter of Notification, the Defendant said he would not attend the hearing. After the Defendant failed to attend court on the first day of the trial, Madam Lee called the Defendant again that evening, reminding him of the serious consequences of disobeying the Writ of Subpoena, and urging him to attend the hearing on the following day. However, the Defendant said he would not attend the hearing and hung up the phone immediately.

The Defendant’s evidence

7. The Defendant himself testified in the hearing. According to him, he has been working as a construction site labourer for about 30 years. He speaks Hok Lo dialect and he only knows a little Cantonese.

8. According to the testimony of the Defendant, no one has ever served any Writ of Subpoena or originating summons of the contempt proceedings on him. He, however, admits that he had two telephone conversations with a lady. On the first occasion, the place where he received the call was noisy. As the lady spoke Cantonese at a fast pace and his Cantonese was not very good, he did not understand the message from the caller. On the second occasion, the lady likewise spoke Cantonese at a fast pace and he, again, could not understand what the lady was...

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