HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 210 of 2006

The Attorney-General

v

James Fang and
Fang’s Company Limited

Date of Hearing: 3rd August 2006
Date of Judgement: 17th August 2006

N. Moshinsky Q.C., and R. Ziza for the Applicant/Plaintiff
C. Ashley for the Respondents/Defendants 

Palmer CJ.:

This is an application by the Attorney-General on behalf of the Town and Country Planning Board ("the Board"), for the committal to prison of the first Defendant, James Fang ("Fang") by himself and as an officer of the second Defendant, for contempt of the High Court Orders dated 2nd June 2006 and orders made on 6th July 2006 perfected on 12th July 2006.

The orders of 2nd June 2006 read as follows:

"1. That until the hearing and determination of the interlocutory summons or further order, the Defendants are restrained by themselves or their servants or agents or otherwise howsoever from 

(a)	 Performing or causing or permitting the performance of building works or the erection of any structure on lot 286 in Chinatown ("the Site").
(b)	 Occupying or permitting the occupation of the site for any purpose other than the demolition of the building or any structures situated thereon.
….."

This restraining order was obtained by ex parte application following grave concerns expressed by the Board in the refusal of Fang to comply with a "stop notice" issued on 3rd May 2006, to work on his property in Lot 286 that had been severely damaged by fire on April 25 2006 during the April riots. The property had been completely gutted by fire and burnt to the ground save for the concrete structures of the building. On or about 10th May 2006 an Enforcement Notice was issued requiring Fang to stop all activity on the site, have the burnt building structures demolished and to submit redevelopment plans to the Board for its consideration and approval.

On 6th June 2006 a Writ of Summons, Statement of Claim and a Summons for inter partes hearing fixed for 21st June 2006, were issued. On or about 7th June, Fang issued an inter partes summons seeking orders inter alia for the Orders of the Court of 2nd June 2006 to be set aside and or stayed and for the interlocutory summons returnable on 21st June 2006 to be adjourned generally with liberty to restore on 7 days notice.

On 6th July Mr. Nori for the Defendants sought variation of orders, which were not objected to by the Plaintiff, provided an express undertaking was given. The variation was to permit Fang to continue to use the said property for storage purposes only of the cargo that is already in the building. It was made clear to Fang that if there was to be any new stock he had to find alternative storage facilities for them and alternative site for trading. I quote:

"1. The interim orders of the Court dated 02nd June 2006 is varied so as to allow the Defendants to use the concerned premises as storage only for cargo already in stock but no additional new cargo is to be stored in the said premises;

2. Save for the variation herein the rest of the orders to remain in force; …."

The Plaintiff now comes to court for orders to commit Fang for contempt of court for breaching those orders.

The issue before the Court

Did Fang use the premises for anything else other than for storage purposes?

The Plaintiff says that on three occasions, 9th, 10th, and 12th July 2006, Fang used his premises other than for storage as directed by order of Court.

The evidence for 9th July 2006

Nandy Romana says that on Sunday 9th July 2006 at about 11.39 a.m. she and Mrs. Lulei drove to China Town and saw at Fang’s Shop a vehicle parked outside the shop. The vehicle’s number plate was AB1318. She saw passengers from that vehicle going into the shop and purchasing goods. She also saw a container in front of the shop that was open and saw employees or persons carrying cargoes into the shop from the container.

In his response, Fang merely denies this but has not provided any other explanation for it.

The evidence for 10th July 2006

Nandy Romana also states in her affidavit that she drove to Fang’s building with Rawcliffe Ziza ("Ziza’) and Allen Gaddie ("Gaddie") on 10th July at about 3.15 pm and again witnessed that the shop was open and trading. She saw people going in and out of the shop.

Gaddie also witnessed the same incident. He saw a vehicle with registration plate number AB1607 parked in front of the shop and being loaded with bags of rice. Ziza also saw this. He had gone into the shop and saw Peter Sipolo ("Peter") buying 3 bags of rice. Fang does not deny this. He says that Peter had ordered 3 bags of rice from him by telephone and had gone to collect them.

The evidence of 12th July 2006

The evidence of the events of 12th July 2006 came from Allen Gaddie, Francis Seddy and James Su’umi. All witnessed new cargoes being loaded into the shop. Photos were also taken of that event including the registration number of the vehicle (AB2675) being used. No evidence in rebuttal of this event has been filed.

Decision

Apart from mere denials no explanation has been provided for the incidents of the 9th and 12th July 2006. It is for the Plaintiff to prove contempt beyond reasonable doubt. Having considered the evidence adduced in respect of those two incidents, I am more than satisfied Fang allowed new cargo to be loaded into his shop contrary to the orders of this court. I am satisfied I can safely find him thereby guilty of contempt of the orders of the court for permitting the said premises for use other than storage of old cargo.

As to the events of 10th July 2006, whilst there is evidence that Fang was trading at the site he has provided satisfactory explanation that he was actually trying to get rid of his cargo from his building at that time. Peter and Patrick Tema confirmed that they had ordered 3 bags of rice from Fang by phone and had gone to collect them at that particular time. To remove the cargo that is already in the building would not be in breach of the orders of the court provided he does not use the premises to trade. I have doubt in my mind in respect of this incident whether Fang was actually trading or not and do not find him guilty of contempt of that particular incident.

This court appreciates the difficulties Fang has been through. That is no excuse however for defying orders of the court that had been imposed. If he wishes to challenge the validity of those orders he has right to come to court and have his objections heard and considered. Until that is done, he is obliged to comply with those orders; not break them and then complain later. 

I find him guilty of contempt of this court’s orders for the incidents on the 9th and 12th July 2006. The Plaintiff has asked that Fang be committed to prison for 4 weeks. Before I consider what sentence to impose I will hear any mitigation that Fang has.

The Court.