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HCA 307/2002
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 307 OF 2002
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| BETWEEN |
| SINO WOOD INVESTMENT LIMITED |
Plaintiff |
| AND |
| WONG KAM YIN (also known as WONG KAM LING and MANDY WONG) |
Defendant |
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Coram: Deputy High Court Judge Saunders in Court
Date of Hearing: 24 March 2004
Date of Delivery of Judgment: 14 April 2004
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J U D G M E N T
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1. There are two applications before me seeking an Order for Committal pursuant to O. 52. R.3, first, of the Defendant in these proceedings Wong Kam-ying, (Miss Wong) and second, Mr. Paul Lee Yat Kwong (Mr. Lee).
Background:
2. The allegation made against Miss Wong is that on 26 May 2003 at around 5:33 p.m. she knowingly acted in disobedience to a Prohibition Order dated 24 May 2003, granted by Master A Ho, (the Order), after a sealed copy, endorsed with a penal notice, had been served on her personally, by taking steps to leave Hong Kong via the Macau Ferry Terminal in Sheung Wan, Hong Kong.
3. The allegation against Mr Lee is that on 26 May 2003 at around 4:32 p.m., between Hang Seng Building and Crocodile House, Connaught Road Central, Hong Kong, he knowingly obstructed and/or attempted to obstruct a process server in the execution of his duty in serving the Order on Miss Wong and/or abused and/or assaulted the process server whilst in the execution of his duty aforesaid, with the intention of preventing and/or deterring the service of process on Miss Wong and interfering with the administration of justice.
4. The applications for committal arose in the context of on-going litigation between the Plaintiff company and Miss Wong. In that litigation it is the Plaintiff's case that while Miss Wong was a Director of the Plaintiff company, she misappropriated some RMB42.7 million. Miss Wong's case is that the sum of RMB42.7 million was "the Plaintiff's reinvestment in various items of business". It is alleged by the plaintiff that she has not yet revealed just where those "reinvestments" have been made.
The Prohibition Order is made:
5. On 24 May 2003, upon the Plaintiff's application, the Master granted the Order against Miss Wong restraining her from leaving Hong Kong. The Order is in following terms:
"It is ordered that the Defendant, Wong Kam Yin (also known as Wong Kam Ling and Mandy Wong) (holder of Hong Kong Identity Card No. XXXXXXX(X)) is prohibited from leaving Hong Kong."
6. Application for the Order had been made on 23 May 2003, but the Order was not immediately granted as the Master who considered the matter had directed the Plaintiff to file a further affirmation. That was done on the morning of Saturday 24 May 2003, and the Order was then made. By that time, the filing counter and the shroff were closed and the prescribed filing fee could not then be paid. However, due to the urgency of the matter, the Plaintiff's solicitors obtained a sealed copy of the Order from the Clerk to the Master. The Order was dated 24 May 2003 and that date was endorsed below the seal of the chop which was fixed to the first page of the document.
7. The solicitors endorsed a penal notice on the back sheet of a number of copies of the Order, intended for personal service. The penal notice, on the Order served, is in the following terms:
"PENAL NOTICE.
If you the within named Defendant Wong Kam Yin (also known as Wong Kam Ling and Mandy Wong) neglect to obey this order or disobey this order, you may be held to be in contempt of court and liable to a process of execution to compel you to obey the same and/or liable to imprisonment.
Dated of May 2003.
Allen and Overy, solicitors for the Plaintiff."
The facts:
8. The following facts which I set out, surrounding the circumstances of the service of the Order, are not in dispute. Neither Miss Wong nor Mr. Lee elected to give evidence and the evidence of the process server, Mr. Cheng Wai-kee, (Mr. Cheng), was virtually unchallenged.
9. The solicitors for the Plaintiff company instructed a process server, Mr Cheng to effect service of the Order on Miss Wong. To do this they gave him a number of sealed copies of the Order each with the penal notice endorsed on the back sheet. He was also given photographs of Miss Wong to assist him in identifying her. At around 8:15 a.m. on 26 May 2003, Mr Cheng went to the lift lobby on the ground floor of Hang Seng Building, Connaught Rd., Central in which the offices of Miss Wong's solicitors were located. He was to wait there to see if she came into or out of the building in order that he may effect service.
10. At around 4:30 p.m. on that day he saw a woman come out of the lift with another woman and two men. He said he saw the four people stand in the lobby for a moment and they then left the lobby walking quickly towards an escalator leading to Connaught Road. Mr. Cheng was by this time satisfied that one of the women in the group was in fact Miss Wong. It is not in dispute that she was one of the people in the group.
11. The four people left the building and turned left to walk towards Western. Mr Cheng followed them at the distance of about 20 feet. He said that they walked as a group with Miss Wong in the middle. The group crossed a side street, Queen Victoria Street, and continued quickly on Connaught Road, stopping outside the Hang Seng Bank Headquarters Building. There they tried to hire a taxi. Mr Cheng went up to the group. Behind Miss Wong was one of the men and the other woman, and in front of her was the other man. Mr Cheng said that the people behind Miss Wong were about a foot behind her, and the man in front, about two feet in front of her.
12. Mr Cheng went up to the group and reached out with the Order in his hand touching Miss Wong on the left shoulder with the document. He said:
"Wong Kam Yin, this is a Court Prohibition Order prohibiting you not to leave Hong Kong. You can ask your solicitor for the details."
13. He said that he was about a foot away from Miss Wong when he made this statement. He then tried to put the document in her hand but she refused to accept it, and pushed it away. As she did she said:
"Who are you, I don't know you."
Mr Cheng responded by saying:
"I am a representative of Sino Wood Investment Limited to serve a Prohibition Order on you."
14. The group had failed to hire a taxi and, again as a group, walked in a hurried manner towards Western. They all, including Mr Cheng, who followed, crossed Jubilee Street, and came outside Crocodile House. Again the group tried to hire a taxi. Taking the opportunity that they had stopped, Mr Cheng went up to them and came alongside Miss Wong. He said that one of the men shouted at him to stop and asked Mr Cheng what the matter was. Mr Cheng responded by saying that he had to serve a Prohibition Order on Miss Wong. That man asked to see the document. It is not in dispute that that man was Mr Lee. Mr Cheng gave him the document. Mr Lee glanced at it, and, using one hand and his body, screwed it up and threw it on the ground.
15. By this time, a taxi had stopped and Miss Wong and the other two members of the group were in the process of boarding the taxi. Mr Cheng said that he immediately picked up the document and tried to give it to Miss Wong. He walked up to the taxi for that purpose. Mr Lee then pushed Mr Cheng once on each shoulder with the flat of his hand, and then used his forearm to push Mr Cheng in his abdomen. These actions were intended to prevent Mr Cheng gaining access to the taxi and delivering the document to Miss Wong.
16. The taxi with Miss Wong on board left, and Mr Lee walked back the way he had come and turned south into Jubilee Street, with Mr Cheng following. There then followed a discussion between Mr Lee and Mr Cheng, and the police were called. However none of these subsequent events are relevant to the issues that I have to consider.
17. It is not in dispute that thereafter Miss Wong went to the Macau Ferry Terminal where, in possession of a ferry ticket, she entered the restricted area and approached the Immigration Counter, presenting her identity card in order to pass through immigration and board the ferry. When informed of the Order she claimed that she was ignorant of it, and after some advice from Immigration Officers, she chose not to go further, and left the ferry terminal building.
Was service of the order effected?
18. Mr Griffiths accepted that by touching Miss Wong on the shoulder with the document, and informing her of the nature of the document, Mr. Cheng had effected service of the Prohibition Order. However Mr Griffiths raises a point in respect of the penal notice, which I will deal with later.
Civil or Criminal Contempt?
19. There is no doubt that the allegation against Miss Wong is an allegation of civil contempt of court. Civil contempt involves disobedience of a court order: see Arlidge, Eady and Smith on Contempt, 2nd edition, para. 3-1.
20. Mr. Bleach says that the actions of Mr. Lee in assaulting Mr. Cheng, albeit technically, and further, preventing Mr. Cheng from leaving the Order in Miss Wong's presence, by hindering his access to the taxi, are actions which obstructed the service of process on Miss Wong and interfered with the administration of justice, which constituted a contempt of court.
21. Although Mr Griffiths contended that the allegations against Mr Lee were an allegation of civil contempt, I am satisfied that they constitute an allegation of criminal contempt. It is plain that the allegations made against Mr Lee are allegations of interference with the administration of justice. In Arlidge, para. 11-34, the essence of criminal contempt is described as interference with the...
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