Zhang v Fortune Holding Group Pty Ltd

1 On 11 December 2017, a judge of the Trial Division found the applicant guilty of 21 charges of contempt.[1] On 13 February 2018, the judge sentenced the applicant to four weeks' imprisonment. In sentencing the applicant, the judge pronounced the following order:

The defendant, Ian Yan Zhang, is adjudged guilty of contempt of court in that, in breach of the order of Macaulay J on 18 September 2013 (as varied) he withdrew $24,857.34 in 18 separate withdrawals, made between 26 September 2013 and 4 June 2014, from eight bank accounts; and Ian Yan Zhang is convicted and sentenced to four weeks' imprisonment which expires Tuesday 13 March 2018.[2]

2 While the judge's order states that the sentence of imprisonment imposed upon the applicant expired on Tuesday 13 March 2018, the applicant was released on bail on Saturday 3 March 2018,[3] and accordingly has another 10 days to serve of his sentence.

3 Pursuant to s 278 of the Criminal Procedure Act 2009, the applicant now seeks leave to appeal against his sentence.[4] In his application for leave to appeal, the applicant named the plaintiffs in the proceeding at first instance as respondents,[5] and identified his proposed grounds of appeal as follows:

1. The sentencing judge erred [in] receiving submissions from [the respondents] about the appropriate length of a sentence of imprisonment.
2. The sentencing judge erred in failing to consider discretely whether the sentence should be suspended.

4 This morning, the applicant sought leave to add a fourth proposed ground of appeal, namely that 'the judge erred in finding that the applicant's contempt was contumacious'. We permitted the applicant to advance argument in respect of this proposed ground, saying that we would rule on this application in our reasons for judgment.

5 The applicant is a former employee of the first respondent. In 2010, the fourth respondent engaged the applicant to manage the respondents' businesses in Australia. As a result, the applicant and the first respondent entered into an employment agreement which commenced on 22 February 2010.

6 In early 2013, the fourth respondent carried out an investigation with respect to suspected misappropriations by the applicant and, in late April 2013, the applicant was dismissed from his employment. The respondents commenced a proceeding in the Supreme Court against the applicant, in which they alleged that the applicant improperly paid or retained amounts totalling $721,468.49. The respondents also claimed the repayment of a loan of $100,000.

7 On 18 September 2013, Macaulay J made a freezing order against the applicant. Paragraph 6 of the freezing order was in the following terms:

1. You [i.e. the respondent] must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets which are in Australia ('Australian assets') up to the unencumbered valued of AUD$169,000.00 ('the relevant amount').
2. If the unencumbered value of your Australian assets exceeds the relevant amount, you may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of your Australian assets still exceeds the relevant amount.

1. If the unencumbered value of your Australian assets is less than the relevant amount and you have assets outside Australia ('ex-Australian assets') -
   1. you must not dispose of, deal with or diminish the value of your Australian assets and ex-Australian assets up to the unencumbered value of your Australian and ex-Australian assets of the relevant amount; and
   2. you may dispose of, deal with or diminish the value of any of your ex-Australian assets, so long as the unencumbered value of your Australian assets and ex-Australian assets still exceeds the relevant amount.

The order prohibited the applicant from in any way disposing of, dealing with or diminishing the value of his assets up to the unencumbered value of $169,000. The order that was served contained the required Penal Notice describing the possible consequences of breaching the order.

8 Paragraph 10 of the order set out four exceptions to the prohibition stipulated in paragraph 6. These allowed the applicant to:

(a) pay up to $500 a week on his ordinary living expenses;

(b) pay $10,000 on his reasonable legal expenses;

(c) deal with or dispose of his assets in the ordinary and proper course of his business, including paying business expenses, bona fide and properly incurred; and

(d) in relation to the matters not falling into 10(a), (b) or (c), deal with or dispose of any assets in discharge of obligations bona fide and properly incurred under a contract entered into before the freezing order was made, provided that before doing so the defendant gave the plaintiffs, if possible, at least two working days' written notice of the particulars of the obligation.

9 On 20 September 2013, on the return of the order, Macaulay J extended it until 27 September 2013. Relevantly, at this hearing, the applicant was represented by counsel.

10 On 27 September 2013, Cavanough J extended the order until 8 November 2013 and varied it so that the applicant could:

(a) pay up to $1000 a week on his ordinary living expenses; and

(b) pay $20,000 on his reasonable legal expenses.

At this hearing the applicant was once again represented by counsel.

11 On 8 November 2013, the order was extended by Garde J, this time until further order of the Court. The applicant was not legally represented at this hearing and did not appear in person.

12 On 16 October 2014, the respondents filed a summons against the applicant alleging that the freezing order had been breached and that the applicant was in contempt of court. Amended summonses, filed in November 2014 and March 2017, ultimately resulted in the applicant facing 40 charges for contempt in respect of multiple withdrawals from bank accounts that were made in breach of the freezing order.

13 On 24 May 2016, following a trial of the respondents' primary proceeding, Riordan J gave judgment for the respondents against the applicant in the sum of $792,370.07, together with interest of $218,319.37 plus costs.[6]

14 As the terms of the judge's order[7] make plain, the contempt of court for which the applicant was sentenced was constituted by the withdrawal of $24,857.34 in 18 separate withdrawals, made between 26 September 2013 and 4 June 2014, from eight bank accounts, in contravention of the terms of the freezing order.

15 In her reasons for sentence, the judge stated that the applicant's breaches of the freezing order arose by reason of his:

(a) failing to give the plaintiffs notice of the prior existing obligations, for example in connection with periodic mortgage payments, interest and bank fee payments direct debited from his bank account; and

(b) causing the limit imposed by the order to be exceeded by expenditure on items including dining, entertainment, luxury items and overseas travel costs.[8]

16 The judge recorded a submission made by the respondents that a number of the applicant's breaches were 'serious and deliberate'.[9] The judge then recorded the respondents' submission that the applicant was aware of, and understood the terms of the order and 'repeatedly and willingly ignored it, spending several hundred and, on occasion, thousands of dollars on items such as Ugg boots, duty free purchases, extravagant dinners and overseas trips and at karaoke bars and "massage parlours".'[10]

17 Next, the judge recorded that while the applicant maintained in evidence that his breaches were unintentional, she concluded, citing Zhang [No 2], that the applicant understood the contents of the freezing order and his obligations pursuant to it. The judge referred to what she said in Zhang [No 2][11] as follows:

There were some aspects of the defendant's evidence that gave me concern as to his credit. For example, his evidence in relation to his understanding and knowledge of the content of the order. The defendant maintained that he was never given any legal advice about the order and that he never appraised himself of its contents. This evidence does not sit comfortably with the fact that:

(a) he had legal representation at the time of the first return date and until 31 October 2013;

(b) upon service he immediately retained a lawyer to act for him and provided them with the order and other relevant documents;

(c) he is fluent in English and attended secondary school and university in Australia;

(d) the email correspondence from his lawyers dated 20 September 2013 is consistent with him knowing the terms of the order; and

(e) the concession that he made in cross-examination that he understood his obligations under the terms of the order.[12]

18 The judge then discussed relevant principles relating to penalty,[13] the materials relied upon in respect of penalty[14] and the applicant's evidence.[15]

19 The judge summarised the applicant's submissions that:

(a) the breaches were unintentional and that he did not receive legal advice on the extent or nature of the freezing order;

(b) he has two children and a wife to support;

(c) he will be commencing new employment and incarceration 'would destroy my life completely';

(d) this is the first time he has been held in contempt;

(e) a fine would be appropriate; and

(f) he is sorry for the breaches of the freezing order and will never allow himself to get into such a situation again and apologises to the court.[16]

20 The judge then turned to the question of penalty and said:

The defendant's evidence on the whole was unsatisfactory and unreliable. He did not call a single witness to support his assertions, either his parents in relation to the payment of a fine, or someone who could vouch for his new job prospects. Nor did he produce a single affidavit. This is in circumstances where the defendant, who at one stage ran his own civil trial, is fully aware of the need to put cogent evidence before the Court.

The defendant's evidence about his new job opportunity with 'Wayne' appears at best speculative. There were no particulars as to his potential earnings, salary or commission. The business was loosely described as providing mortgages out of a $300 million capital pool to Chinese borrowers. He described his prospective role as essentially that of a 'broker'.

On the one hand, the defendant conveyed his failed business ventures over the last five years, which have left him with no financial means (and so have prevented him from repaying the judgment debt). On the other hand, in cross-examination, it was revealed that he has a company, selling milk products to China, which is making a profit. There was no documentary evidence to support the defendant's bald assertions in relation to any of the substantive matters he deposed to.

It is not clear how long the defendant worked as a private driver or Uber taxi driver, why he stopped or how much money he earned.

The defendant wanted the Court to accept that he has been consumed with his several legal proceedings and so has been prevented from working. Despite this, he was prepared to engage in business development projects, including setting up a new company and developing contacts through dinners, meetings and karaoke. None of this, on his evidence, has generated any real income for him to discharge his judgment debt to the plaintiffs.

The defendant's personal circumstances include his wife and two young children. It is not clear who is responsible for his accommodation costs. He says he parents (sic) live with him.

The defendant's breaches, save for that detailed in charge 5, do not involve large sums of money. However, they are not trivial, flowing from the defendant's defiance of the order. The total quantum of the breaches is approximately $25,000. I have found that the defendant was aware of and understood the terms of the order and repeatedly breached it over a 36 week period (the breaches occurring in 18 of the 36 weeks). Of the 21 breaches, I note that a number consist of a failure to give notice to the plaintiffs of any payment relating to a prior obligation, which are of a less serious nature. Nevertheless, a majority of the breaches were caused by expenditures like extravagant dinners, attendance at karaoke bars, overseas trips, luxury items and gifts, which took the defendant over his weekly allowance of $1000 for ordinary living expenses.

The defendant has not made any attempt to pay the judgment debt against him. Having said that, the order makes such payment difficult, and the plaintiffs have only recently made a demand for payment.

To breach a court order is a serious matter. The breaches commenced just one week after the order was made and continued over the following 36 weeks. The breaches were wilful and therefore interfered with the administration of justice.

The defendant's conduct has had the effect of removing approximately $25,000 from his bank accounts that might otherwise have been used to pay part of the judgment owed to the plaintiffs. I have already found that the defendant was aware and understand the terms of the order. The defendant has throughout this proceeding placed the blame and responsibility for his actions on everyone but himself.

The defendant says he is sorry for what he has done and that it will not happen again. I consider this apology disingenuous. He maintained that he had committed no contempt until I found otherwise. I do not consider that such an apology shows any genuine remorse that can be taken into account. As I have said, the defendant has tried to pass the blame for his breaches to advisors, who he complains did not give him proper advice. This does not show mitigatory contrition.

The defendant did not put any character evidence before the Court.

The defendant has had every opportunity to provide evidence about his current financial circumstances. There is no evidence that he has the capacity to pay a fine. In such circumstances, the imposition of a fine is not likely to have a significant effect upon the defendant, making it an insufficient vehicle for vindicating the authority of the Court.

The penalty imposed in this proceeding is for the breaches of the order and not for his conduct with which Justice Riordan's judgment dealt.

The plaintiffs submitted that an appropriate penalty would be a term of imprisonment for each breach of the order. The total term of imprisonment should be around four to six weeks. Further, and consistent with the usual approach in contempt proceedings, the plaintiffs' costs should be paid on an indemnity basis.

It is appropriate to take into account specific and general deterrence. The defendant and any others who may contemplate disobedience of a court order should realise that this will not be tolerated. As I have said, on the evidence before the Court, it is clear that the defendant's contempts were serious. They were precisely the kind of mischief to which the order was directed.

I am satisfied that the defendant was wilfully disobedient in disregarding the order. I take into account the defendant's personal circumstances and the nature and circumstances of the contempt. As I have said, the effect of the contempt was significant, eroding confidence in the administration of justice. I consider the defendant culpable. There is a need to deter him and others like him from such conduct.

Even though the quantum of the breaches is less than that found in other comparative cases, quantum by itself does not determine the type of penalty to be imposed (nor the severity of that type). Indeed, while the quantum was small, the defendant's conduct was highly disturbing. He adopted a somewhat reckless and cavalier approach to the order and decided to breach it so as to engage in what can only be described as speculative business opportunities. He clearly wished to make a great deal of money quickly rather than obtain ordinary employment. On his evidence, the LED lighting company never made a profit, yet he continued to engage in speculative business opportunities. His evidence in relation to his recent job prospect with 'Wayne' smacks of a high-risk low-return employment opportunity. In addition, the defendant attempted to maintain what appears to be a lifestyle beyond his means, including repeated trips to China, dinners and luxury purchases (i.e. $350 Ugg boots for an eight month old child).

Consonant with the principle of parsimony, I have considered all possible available penalties, including suspended sentences and fines. It is essential that persons subject to court orders be aware that they may face grave consequences if they breach them. In my opinion, this is a case in which it is appropriate to impose a term of imprisonment, and nor do I consider that any other penalty would adequately reflect the objective gravity of the contempt.

Having regard to the above factors, and the submissions of the parties, I convict and sentence the defendant to a term of four weeks' imprisonment.

I have carefully considered each of the following:

(a) the defendant is a family man with no prior convictions for contempt;

(b) his financial circumstances are such that, in an indirect sense, his family will have to bear the burden of his behaviour; and

(c) he will be required to pay the plaintiffs' costs on an indemnity basis (as discussed below).[17]

21 Under proposed ground 1, the applicant submitted that the sentence was manifestly excessive in light of the following:

(a) the long delay in the prosecution of the contempt proceedings;

(b) the absence of any evidence of steps taken by the respondent at the relevant time to warn the applicant of the potential consequences of his breaches, particularly where a substantial number of the breaches related to the failure to give advance notice of the payment of bona fide obligations;

(c) the relatively small sum involved;

(d) the fact that the penalty did nothing to advance the interests of the respondents;

(e) the costs order against the applicant;

(f) the fact that the judge accepted[18] that much of the 'extravagant' expenditure was in fact related to real, if foolish, attempts to establish businesses; and

(g) the lack of any relevant prior history on the part of the applicant.

22 The applicant contended that, in the circumstances identified above, the imposition of a sentence of actual imprisonment was 'unwarranted'.

23 Under proposed ground 2, the applicant submitted that, consistent with Barbaro v The Queen,[19] 'the view of the respondents on penalty was irrelevant to the exercise of her Honour's discretion'. It was also submitted that the High Court's decision in Commonwealth v Director, Fair Work Building Industry Inspectorate[20] did not authorise the judge to receive submissions from the respondents on the length of a term of imprisonment that might be imposed upon the applicant.

24 Under proposed ground 3, the applicant submitted that the question of whether the sentence of imprisonment imposed upon him was suspended 'required discrete consideration'. The applicant contended that, while the judge expressly addressed the reason why a fine would be an inadequate penalty, she did not address why suspension of the sentence was inappropriate.

25 Under the applicant's proposed new ground 4, the applicant made complaint that the judge had found his contempt to be contumacious.[21] A finding that the applicant's contempt was contumacious, or that the applicant was wilfully disobedient[22] was said to be not justifiable on the evidence.

26 It is convenient to commence with the applicant's complaints of specific error in proposed grounds 2 and 3. Proposed ground 2 makes the complaint that the judge erred in receiving submissions from the respondents about the appropriate length of a sentence of imprisonment.

27 The judge recorded[23] the respondents' submission that an appropriate penalty would be a term of imprisonment for four to six weeks. The judge then said that 'the total term of imprisonment should be around four to six weeks'. However, even if one accepts that Barbaro would have prevented the respondents from making a submission as to the length of an appropriate term of imprisonment,[24] it is to be remembered that a quantified range submission does not vitiate the sentencing discretion unless it can be demonstrated that the sentencing judge was influenced by the submission in arriving at his or her sentence.[25] A fair reading of her Honour's reasons for judgment does not disclose any basis upon which it might be contended that the judge, in fixing a sentence of four weeks' imprisonment, was influenced by the respondents' submission that there should be a term of imprisonment of four to six weeks.

28 The applicant's complaint in proposed ground 3 is that the judge 'fail[ed] to consider discretely whether the sentence [of imprisonment] should be suspended'. There is no substance in this ground. The judge said[26] that she had considered 'all possible available penalties, including suspended sentences and fines'. The judge then said that she considered it appropriate to impose a term of imprisonment, and that she did not consider that any other penalty would adequately reflect the objective gravity of the contempt. Plainly, in making these statements, the judge considered whether the term of imprisonment she imposed should be suspended. Proposed ground 3 is bereft of merit.

29 We turn now to consider the applicant's complaint that the sentence imposed was manifestly excessive (proposed ground 1). In considering this complaint, it must be remembered that the judge concluded that the applicant was aware of, and understood, the terms of the freezing order, and that he was wilfully disobedient in disregarding the order. As the judge put it:

Indeed, while the quantum was small, the defendant's conduct was highly disturbing, he adopted a somewhat reckless and cavalier approach to the order and decided to breach it so as to engage in what can only be described as speculative business opportunities. ... In addition, the defendant attempted to maintain what appears to be a lifestyle beyond his means, including repeated trips to China, dinners and luxury purchases.[27]

30 As part of his manifest excess argument, the applicant contends that there was a 'long delay in the prosecution of the contempt proceedings'.

31 The contempts were committed between September 2013 and June 2014. The respondents issued their first summons in relation to the contempts in October 2014. The hearing of the charges occurred on various days in March, August and September 2017. Following judgment in December 2017 and the plea hearing in January 2018, the applicant was, as we have already observed, sentenced on 13 February 2018.

32 It may be accepted that there was a not insignificant elapse of time between the end of the offending (June 2014) and sentencing (February 2018). However, as was pointed out by the respondents, much of this elapse of time was brought about by the applicant's applications for adjournments that were granted by the judge over the respondents' opposition. That said, the elapse of time was (and is) a relevant consideration in that the contempt charges hung over the applicant's head for some three and a half years before he was sentenced.

33 Similarly, the lack of any relevant prior criminal history, the size of the sum involved and the fact that a costs order was to be (and was) made against the applicant, were relevant matters in the sentencing synthesis, and are again in the determination of whether the sentence imposed by the judge was manifestly excessive.

34 Contrary to the applicant's submissions, however, the absence of any evidence of steps taken by the respondents to warn the applicant is not of great moment - particularly having regard to the judge's conclusions about the applicant's knowledge of the terms of the order and his state of mind in breaching the order. Likewise, the fact that the penalty 'did nothing to advance the interests of the respondents' is not of great moment when determining what penalty should be imposed for the wilful breach of a court order.

35 In order to establish that a sentence is manifestly excessive, an appellant must demonstrate that the sentence was 'wholly outside the range of sentencing options' available to the judge.[28] As has been said before, manifest excess is a stringent ground that is difficult to make good. In essence, in order to succeed, the applicant must demonstrate that the sentence imposed on him was so excessive as to bespeak error in the exercise of the sentencing discretion, notwithstanding that no specific error can be identified in the reasons for sentence given by the judge.[29]

36 In the present case, the judge could undoubtedly have decided to impose a suspended term of imprisonment. She was not, however, bound to do so. Indeed, it might equally be said that the judge could reasonably have imposed a longer term of imprisonment than four weeks.

37 The circumstances of this case, and the judge's careful and appropriately detailed reasons, demonstrate why it cannot be said that the sentence she imposed was outside the permissible range. Notwithstanding each of the matters argued by the applicant in support of his proposed ground of manifest excess, when one considers all of the applicant's circumstances and the circumstances of his offending, it is not reasonably arguable that the sentence was manifestly excessive. Indeed, in our respectful view, the sentence was entirely appropriate for what were wilful and deliberate breaches of the freezing order made against the applicant.

38 Finally, we turn to the applicant's application for leave to add proposed ground 4. There is no substance in proposed ground 4. In convicting the applicant, the judge convicted him of the charges pleaded. Contumacy, as the judge observed, was an issue relevant to the question of any penalty.[30] With respect, we see no error in the judge's treatment of this issue.

39 Moreover, it was well-open to the judge to find that the applicant was 'wilfully disobedient in disregarding the [freezing] order'.[31] The proposition that the judge erred in this conclusion is not reasonably arguable. That said, and in any event, for the reasons already given, we are not persuaded that any different sentence should now be passed.

40 As proposed ground 4 is without merit, a grant of leave to add that ground would be futile. Accordingly, the applicant's application to add proposed ground 4 will be refused.

41 As none of the applicant's proposed grounds of appeal are reasonably arguable, the application for leave to appeal must be refused.

[1] Fortune Holding Group Pty Ltd v Zhang [No 2] [2017] VSC 738 ('Zhang [No 2]').

[2] Fortune Holding Group Pty Ltd v Zhang [No 3] [2018] VSC 22 [63] ('Sentencing Reasons').

[3] Zhang v Fortune Holding Group Pty Ltd [2018] VSCA 46.

[4] Section 278 of the Criminal Procedure Act 2009 permits a person 'sentenced for an offence by an originating court' to appeal to the Court of Appeal against the sentence if the Court of Appeal gives the person leave to appeal. 'Originating court' is relevantly defined in s 3 of the Act to mean 'the Supreme Court in its original jurisdiction'. 'Original jurisdiction' is relevantly defined to include 'a proceeding for contempt of court'.

[5] While this Court's decision in Allen v The Queen (2013) 36 VR 565, 568 [13] ('Allen') holds that the Queen is the proper respondent to an appeal against the summary adjudication of a contempt of court charge, no party took any issue before us about this matter. It was uncontroversial that this Court has jurisdiction to hear the application for leave to appeal (and appeal if leave is granted): see Allen (2013) 36 VR 565, 569 [15]. See also Construction, Forrestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261; (2014) 47 VR 527 ('CFMEU v Grocon')

[6] Fortune Holding Group v Zhang [2016] VSC 273.

[11] Zhang [No 2] [2017] VSC 738 [51].

[17] Ibid [37]-[57] (citations omitted).

[19] [2014] HCA 2; (2014) 253 CLR 58 ('Barbaro').

[20] [2015] HCA 46; (2015) 258 CLR 482 ('Fair Work Building Industry Inspectorate').

[21] But cf Sentencing Reasons [4], [45] and [53].

[24] See generally, Matthews v The Queen [2014] VSCA 291; (2014) 44 VR 280, 292-3 [29] ('Matthews') and the cases referred to therein; Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482, 500-1 [34]-[37], 502 [40], 512-3 [74]-[77], 516-9 [88]-[98], and 520-1 [102]. Note also that the respondents' summonses were issued pursuant to r 75.06 of the Supreme Court (General Civil Procedure) Rules 2015 and that the penalty was imposed pursuant to r 75.11; and that such a proceeding is a civil proceeding: Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375, 380-1 [3] and 388-390 [42]-[45].

[25] See Matthews [2014] VSCA 291; (2014) 44 VR 280, 285 [7].

[28] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89]; DPP v Hayes [2017] VSCA 285 [47] ('Hayes').

[29] McPhee v The Queen [2014] VSCA 156 [9]-[11]; Hayes [2017] VSCA 285 [47].

[30] Zhang [No 2] [2017] VSC 738 [184]. See also CFMEU v Grocon (2015) 47 VR 527, 586-598 [242]-[299].