ZQA v SCC [2021] 3 HKC 458, [2021] HKCA 194

Jason Wong represented the respondents in ZQA & ORS v SCC & Anor [2021] 3 HKC 458, [2021] HKCA 194.

By a court order dated 16 November 2017 (2017 Order), the 1st and 2nd respondents were to file and serve an affirmation before 14 December 2017. Despite retaining a solicitor (Mr Wong) for this purpose, they failed to do and were found to be in contempt of court on 11 June 2019 (the 2019 Judgment) and sentenced to three months’ imprisonment on 31 July 2020 (the 2020 Judgment). Through new solicitors engaged on 5 August 2020, a summons was filed on 12 August 2020 in the District Court for extension of time to appeal against the 2019 Judgment and for leave to appeal to the Court of Appeal. The District Court dismissed the summons on 8 September 2020. The 1st and 2nd respondents also filed on 12 August 2020 an appeal against the 2020 Judgment with notice of motion for their release pending the sentence appeal. On 21 September 2020, the 1st and 2nd respondents renewed their application for leave to appeal out of time against the 2019 Judgment before the Court of Appeal. In support of the renewed leave application, new evidence was sought to be adduced attributing the delay in responding to the 2017 Order to Mr Wong, who had confirmed in writing that there was delay on his part in handling the proceedings and that he was not prepared to file any affirmation in response.

Held, unanimously, allowing the appeal and setting aside the 2019 Judgment and the 2020 Judgment: 

Per Cheung JA

(1) In view s 48B of the (hk) District Court Ordinance (Cap 336), it was not necessary for the 1st and 2nd respondents to apply for leave to appeal against the 2019 Judgment. Further, no extension of time was required to appeal the 2019 Judgment as there was in effect only one judgment: the 2019 Judgment finding the breach of the 2017 Order with the 2020 Judgment ordering the punishment. The composite judgment came into existence when the Judge delivered the 2020 Judgment and the 1st and 2nd respondents were entitled to appeal as of right within the 28-day appeal period under O 58 r 2(9) of the Rules of the District Court (Cap 336H) (paras 1.12, 5.5-5.7).

(2) The threshold to admit fresh evidence was that it was necessary or expedient in the interest of justice and it was met in the present case. Justice required the Court to be fully apprised of the background of why the 1st and 2nd respondents had not responded to the 2017 Order and the way the contempt proceedings was being handled by Mr Wong on their behalf. They were relevant to the issue of the intention of the 1st and 2nd respondents towards the compliance of the 2017 Order. Kao, Lee & Yip v Koo Hoi Yan [2009] 5 HKC 36 ; (2009) 12 HKCFAR 830 followed (para 5.11).

(3) The proper approach in committal for civil contempt by reason of breach of a court order was essentially a three-stage test, namely: (i) the relevant court order must be construed to ascertain its meaning and operation; (ii) it must be determined whether the person had in fact complied with the order as so construed; and (iii) it must be determined whether any failure to comply was accompanied by the state of mind necessary to establish punishable contempt. Kao, Lee & Yip v Koo Hoi Yan [2009] 5 HKC 36 ; (2009) 12 HKCFAR 830 and Effiscient Ltd v Edward Eugene Lehman [2013] 3 HKC 300 followed (para 5.12).

(4) There was no dispute on the first two stages of the approach as the 2017 Order was clear that it required the 1st and 2nd respondents to file an answer before 14 December 2017 and this was not complied with. The real issue in the appeal was whether they had the requisite intention. The context of the case was exceptional. The truth of the 1st respondent’s narration of Mr Wong’s conduct was not challenged by him. On the contrary he admitted that he had delayed in ‘handling’ the 1st respondent’s 1st affirmation (affirmed on 2 May 2018) from October 2017 to April 2018. In light of the fresh evidence admitted in the appeal, one would not be able to hold beyond a reasonable doubt that the 1st and 2nd respondents had the requisite intent to breach the 2017 Order and had committed a contempt of court. The present case came within the recognized ‘unintentional’ exemption. Stancomb v Trowbridge Urban District Council [1910] 2 Ch 190, Re Mileage Conference Group of the Tyre Manufacturers’ Conference Ltd’s Agreement [1966] 1 WLR 1137, Heatons Transport (St Helens) Ltd v Transport and General Workers’ Union [1973] AC 15, Spectravest Inc v Aperknit Ltd [1988] FSR 161 considered, Adam Phones Ltd v Goldschmidt [1999] 4 All ER 486 and Kao, Lee & Yip v Koo Hoi Yan [2009] 5 HKC 36 ; (2009) 12 HKCFAR 830 considered (paras 5.13 and 5.22).

[The above is excerpted from the headnote to the report in HKC.]

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