CHANG MING FANG JACQUELINE alias CHANG HWAI YING JACQUELINE v. ZHANG ZI QIANG

CACV229/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 229 OF 2009

(ON APPEAL FROM HCA NO. 2714 OF 2006)

---------------------

BETWEEN:

---------------------

-----------------------------------------

REASONS FOR JUDGMENT

-----------------------------------------

Hon Yuen JA (giving the reasons for judgment of the Court):

1.  This is an appeal from a judgement of Recorder Anthony KK Chan SC granting an injunction to the Plaintiff restraining the Defendant from assaulting or intimidating her, and restricting his access to her workplace and residence, and awarding her damages of $200,000 with interest and costs.

2.  At the conclusion of the appeal, we dismissed the appeal with costs.  Our reasons appear below.

Factual Background

3.  The Plaintiff is the elder sister of the Defendant.  It is common ground that the Plaintiff and the Defendant had a close and loving relationship when they were growing up.  They had 3 other siblings, one being a half-sister. 

4.  In 1976 the Plaintiff (then 21) moved to Hong Kong from the Mainland.  In 1988, the Defendant (then 28) emigrated to Australia from the Mainland. 

5.  In 1992 the Plaintiff started divorce proceedings against her husband with whom she had 2 children.  It is common ground that she was in financial difficulties and that the Defendant transferred some money to her, although the exact amount is disputed.  Another brother lent some money to the Plaintiff (which, it is not disputed, has been repaid).

Transfers of funds between Plaintiff and Defendant

6.  Thereafter from 1993 - 1998, some more funds were transferred between the Plaintiff and the Defendant.  It is not necessary in this appeal to go into the specific allegations of the parties regarding these transfers of funds because there was no counterclaim.  The Plaintiff says she has repaid all that she owed.  The Defendant says she has not.

7.  In 2001, there was an equal distribution from their mother’s estate, of which the Defendant was co-executor with the half-sister. 

8.  In 2002, the Plaintiff’s divorce proceedings were finalized. 

The Letter

9.  In this action a matter which took on some significance is a letter which the Defendant said the Plaintiff drafted for him in connection with her arrangements with the Legal Aid Department and which she faxed to him in 2003.  The letter was addressed to 瑩家姐 , and was to the effect that the Defendant had lent the Plaintiff $1.1m in the course of the divorce proceedings and he needed to press her for repayment (however it is common ground the Defendant had not lent the Plaintiff as much as $1.1m). 

10.  This letter has been referred to at trial as “Letter B” and we will come back to this document later. 

11.  Also in 2003 the Defendant began asking the Plaintiff for money.  The Plaintiff said it was because the Defendant had lost money gambling.  The Defendant said he was only asking for repayment of the sums he had previously lent her, now that she was financially better off. 

12.  It is common ground that the Plaintiff did transfer some funds to the Defendant in 2003 and 2004.

13.  It is also common ground that in 2004 the Defendant left Australia, where he had a family and a business, when the Plaintiff took him under her wing in a health products distribution business in which the Plaintiff had achieved some success.  The Plaintiff gave the Defendant money to set up his own distributorship and also gave him a small sum every month for living expenses.  The Defendant however left the business at the end of the following year (2005).

Defendant’s demands for money

14.  It was round about this time (end of 2005) that the Plaintiff said other relatives told her that the Defendant needed money due to his gambling.  She said the Defendant pressed her for money and began intimidating her when she refused to satisfy his demands.  She said he threatened her personal safety in telephone calls and messages, saying that if she did not take his calls, she would “死硬”.  However she did not make recordings of these telephone calls or messages. 

15.  On 23 December 2005 the Plaintiff said she received a number of telephone calls from relatives warning her to be careful because the Defendant was going to Hong Kong to get money from her.  Eventually that day she saw the Defendant at a hotel coffee shop near her workplace where she told the Defendant she would try to borrow money and obtained the Defendant’s bank details. 

16.  According to the Defendant, he was only asking her for repayment and he had not made any threats.   

The 3 Messages - 16 February 2006

17.  It is common ground that the Plaintiff did not remit any money to the Defendant afterwards. 

18.  The Plaintiff said that on 16 February 2006, the Defendant called her on the telephone saying that if she did not give him money, she would “知死”when he came to Hong Kong (the Defendant was then living on the Mainland). 

19.  It is common ground that the same day the Defendant waited for the Plaintiff at the lobby of her apartment building but he was unable to see her as he was stopped by security guards. 

20.  The Defendant admitted at trial that he was upset and he went to the Plaintiff’s workplace.  At the workplace the Plaintiff, accompanied by two people working there, had a brief exchange of words with the Defendant, who then left.                  

21.  However from 3:19 pm to 3:45 pm that day, the Defendant left 3 messages on the Plaintiff’s telephone voicemail (“the 3 Messages”) which were played to the learned Recorder at trial.  In the Messages, the Defendant was obviously emotionally charged.  He swore at the Plaintiff 6 times, referred to “冚家鏟”and said “你死吖” twice.

22.  The next day the Plaintiff went to the police to record the incident but she did not make a formal complaint.

Disturbance at place of business - 29 August 2006

23.  After returning to Australia for a while, the Defendant came to Hong Kong again. 

24.  It is common ground that on 29 August 2006, the Defendant went to the Plaintiff’s workplace again.  The Plaintiff said the Defendant shouted that she owed him money and that although no threatening words were used, his demeanour was intimidating.  At trial the Plaintiff said that the Defendant was holding a document he claimed to be her IOU. 

25.  At trial the Defendant admitted asking for repayment and admitted that he was holding a 2 ft by 3 ft poster, but he said it was a letter written in big characters so that the Plaintiff could read it from afar, and that the letter concerned family matters.

26.  According to two persons at the workplace (PW2 and PW3) whose evidence was not challenged in cross-examination, the Defendant was behaving emotionally and demanding repayment, shouting that he would “put up big posters on the street”.  He caused such a commotion that some trainees were alarmed and began to leave.  Some of the people in the workplace tried to stop the Defendant approaching the Plaintiff in her office but were unsuccessful, and some had to “wrestle” with the Defendant to stop him.  The police had to be called to the workplace and they spent some time talking to the Defendant. 

27.  After the police left the workplace however, the Defendant was seen on the street outside the lobby.  At trial the Defendant admitted that he was distributing copies of Letter B to people leaving the Plaintiff’s workplace, he said “to explain why he was there”. 

28.  The Plaintiff was worried and called the police again, but the Defendant left before they arrived.

29.  Two days later the Plaintiff started seeing a psychiatrist.  She was diagnosed as suffering from depressive disorder.  

30.  On 22 September 2006 the Plaintiff made a complaint to the police against the Defendant.

Paint-splashing incident at place of business - 20 October 2006

31.  Less than two months after the Defendant’s visit, on 20 October 2006 the Plaintiff’s workplace was splashed with paint.  CCTV coverage showed a man splashing the paint and sticking two posters onto the door.   One of the posters contained an enlarged copy of the Letter (this enlarged copy was referred to at trial as “Letter A”), and added onto that poster were the Plaintiff’s photograph, her name card and the words:

“ 瑩家姐已改名張銘芳

這是張銘芳03年上法庭的親筆字

灣仔司徒拔道8號肇輝臺御堡8E

Nuskin 張銘芳見字速打香港電話30776417

否則後果自負”

32.  At trial the Defendant denied any involvement with the paint-splashing incident.  He was not in Hong Kong on the day in question.                                     

Proceedings

33.  The Plaintiff said she was so disturbed by the Defendant’s actions she had to see a psychiatrist.  She commenced proceedings against him in January 2007 for an injunction, and damages for assault and intimidation amongst other things.  An interlocutory injunction was granted against the Defendant on 10 January 2007.

The Defence

34.  In his Defence which was drafted by counsel (not Mr Hung who appeared before us on appeal), the Defendant denied having assaulted or intimidated the Plaintiff.  In particular, para. 4(h) of the Statement of Claim which pleaded the 3 Messages was denied.  It was pleaded on behalf of the Defendant:

“ ... the Defendant again repeats its emphatical denial, the Defendant had not uttered any threats or menaces to the Plaintiff over the phone and/or at the Plaintiff’s mobile phone mailbox whether as alleged or at all ...”

35.  The Defendant denied “any involvement in or connection with” the paint-splashing incident and pleaded that he “has no knowledge how and why it happened”.

36.  At the end of the Defence, there was a “claim” in which the Defendant claimed against the Plaintiff for

“(1) Discharge of the interlocutory injunction order dated 10^th January 2007 against the Defendant;

(2) Costs;

(3) Further and/or other relief”.

37.  It would be noted that there was no counterclaim by the Defendant against the Plaintiff for repayment of any alleged loans that he had given her. 

Trial

38.  The trial before the learned Recorder took 4 days. Apart from the Plaintiff and the Defendant and the two persons at the Plaintiff’s workplace who witnessed the Disturbance (PW2 and PW3), the parties’ father (DW2) and a friend of the Defendant (DW3) also gave evidence.

39.  DW2, who was 84 years old, gave evidence refuting the Plaintiff’s evidence that the Defendant had also asked him for money.  He also supported the Defendant’s evidence that he (the Defendant) had given A$100,000 cash to the Plaintiff in Australia in 1996.  However in cross-examination DW2 was asked about the Defendant’s arrest by the police for criminal intimidation (a charge for which the Defendant was not prosecuted).  When asked if he was aware that even if the Defendant lost in the civil action, he would not have to go to prison, DW2 said he was not so aware.

40.  DW3 gave evidence that he had lent A$35,000 to the Defendant who said it was for the Plaintiff, and he had seen the Plaintiff receive A$100,000 cash from the Defendant in Australia in 1996.  He said it was he who had counted the money and his explanation for that was that he was skilful in counting money.

The Recorder’s judgment

41.  The learned Recorder, recognizing the difficulty of deciding questions of credibility on viva voce evidence alone, considered that the Plaintiff’s evidence was corroborated by the 3 Messages and the Disturbance at the Plaintiff’s workplace on 29 August 2006, the evidence of the latter from PW2 and PW3 being unchallenged. 

42.  The learned Recorder found that the 3 Messages did in fact come from the Defendant and that they showed that the Defendant was behaving in a highly abusive manner towards the Plaintiff. 

43.  The learned Recorder also found from the unchallenged evidence of PW2 and PW3 about the Disturbance that the Defendant was acting in an intimidating way.  He was particularly impressed by PW2's evidence.  The learned Recorder found that since the Defendant had gone to the Plaintiff’s workplace armed with the poster and photocopies of Letter B for distribution, the Defendant’s actions were pre-meditated and intended to put pressure on the Plaintiff. 

44.  The learned Recorder also inferred that the Defendant was behind the paint-splashing incident.  The Defendant was in possession of all the information set out in the poster stuck to the workplace.  Letter A (on the poster) was the same as Letter B which the Defendant distributed after the Disturbance.  Although the Plaintiff would have had a copy of the letter if the Defendant’s evidence that she had faxed it to him was accepted, the learned Recorder rejected as fanciful the Defendant’s suggestion that it was the Plaintiff who had engineered the incident to frame the Defendant.

45.  The learned Recorder noted the Plaintiff’s reticence about the Letter as she said only that she had “no impression” of it, but held that apart from that, the Plaintiff’s evidence was unshaken. 

46.  The learned Recorder discussed the various pieces of evidence regarding the payment in cash of A$100,000 but did not consider it important to his decision.  He also found that DW2 (the father) came to court believing the Defendant “was in real trouble and he was prepared to say what was necessary to get him out of trouble”.

47.  The crucial finding of the learned Recorder was (para. 78):

“Even if I accept that the Plaintiff did borrow the AUS$100,000 from the Defendant, I remain of the view that her evidence about the wrongful acts of the Defendant is true, reliable and supported by the 3 Messages and the incidents on the 23[29] August [the Disturbance] and 20 October 2006 [the paint-splashing incident]”.

48.  Accordingly the learned Recorder gave judgment in favour of the Plaintiff for an injunction against the Defendant from assaulting or intimidating her, and restricting his access to her workplace and residence, and awarding her damages of $200,000 with interest and costs.  We would have thought that in view of the quantum of damages, costs could have been ordered on the District Court scale only, but the Defendant has not made this a ground of appeal, and so we say no more about it.

Appeal

49.  On appeal the Defendant’s counsel Mr Hung accepted that the Defendant faced a high threshold on an appeal from a trial judge’s findings of fact.  We will deal with his arguments in the order set out in his skeleton submissions.  He argued first that the learned Recorder had erred in drawing the adverse inference that the Defendant had instigated the paint-splashing incident.  His arguments went as follows.  The Plaintiff had given different versions regarding the Letter.  She had told the police that the handwriting was “like” hers, and she only said at trial that she had “no impression” of having written it.  If she had indeed written it and had faxed it to the Defendant, she could have retained the original or a copy.  She could therefore have made up the poster herself and engineered the paint-splashing incident to frame the Defendant. 

50.  Mr Hung argued that the learned Recorder failed to consider why the Defendant would have been so foolish as to use the Letter (in which the Plaintiff was referred to as “sister”) as that was the same letter he had distributed during the Disturbance, and that would connect him to the paint-splashing incident. 

51.  Mr Hung also argued that the Plaintiff did not need to be reminded what her working name, photograph, and residential address were, and so these “riders” were intended “for third parties” and not directed to the Plaintiff. 

52.  In our view, the Plaintiff’s reticence about the Letter was understandable even on the Defendant’s case, which was that it was for the purpose of showing the Legal Aid Department that she had been lent as much as $1.1m by the Defendant (which it is common ground was not the case).  But even if the Plaintiff did write the Letter and had retained the original (or had taken a copy distributed by the Defendant in August), the learned Recorder was entitled to draw the inference that it was the Defendant who had instigated the paint-splashing incident.  It was entirely consistent with his actions during the Disturbance.  The purpose was to pressurize the Plaintiff into paying him money by embarrassing and intimidating her at her workplace.  The learned Recorder was entitled to reject as “fanciful” the idea that the Plaintiff, a successful businesswoman, would have chosen to have her working name, photograph, and full residential address displayed in that embarrassing context in public near her workplace, thereby suffering a gross loss of privacy. 

53.  As to why the Defendant would have been foolish enough to have connected himself to the paint-splashing incident by the use of the term “sister” and the use of the Letter which copies he had distributed, it was clear from the 3 Messages that he had been behaving in an emotional way, and it was clear from the Disturbance in August that he was trying to publicize his demands for money from the Plaintiff.  After the 3 Messages and the Disturbance in August, it was the next step in an escalating campaign to embarrass the Plaintiff publicly at her workplace and thereby intimidate her into paying him money. 

54.  As for Mr Hung’s argument that the Plaintiff did not need to be reminded what her working name, photograph, and residential address were, that is completely missing the obvious point of the poster.  The poster was designed to be read by trainees or customers at the Plaintiff’s workplace so that she would be embarrassed and intimidated into giving in to his demands for money.  In our view, the learned Recorder was clearly entitled to draw the inference that the Defendant had instigated the paint-splashing incident.

55.  As for Mr Hung’s argument that the 3 Messages did not amount to assault or intimidation, the learned Recorder had listened to the Messages and we have read the transcript.  We do not agree with Mr Hung’s argument.  They were clearly threatening in tone and content.

56.  As for Mr Hung’s arguments based on whether the Plaintiff was indebted to the Defendant, with respect that is beside the point.  Even if that were so, the Defendant cannot take the law into his own hands and conduct himself as he did.  As for the effect of the account between the parties on the Plaintiff’s credibility, the crucial finding of the learned Recorder was, as stated earlier, that:

“Even if I accept that the Plaintiff did borrow the A$100,000 from the Defendant, I remain of the view that her evidence about the wrongful acts of the Defendant is true, reliable and supported by the 3 Messages and the incidents on the 23[29] August [the Disturbance] and 20 October 2006 [the paint-splashing incident]”.

57.  As for the issue whether the Defendant had lost heavily at gambling, this was peripheral to the main issue, which is that set out in the preceding paragraph.

58.  Finally on findings of credibility, these are matters for a trial judge who has seen and heard the witnesses.  It is well-established that an appellate court generally does not interfere in these matters.

59.  In our view, it is clear that the 3 Messages, the Disturbance in August and the Paint-splashing incident in October 2006 were acts which caused the Plaintiff to apprehend fear for her own safety, and they were threats designed to pressurize her into paying money to the Defendant.

Order

60.  For these reasons, we dismissed the appeal with costs to be paid by the Defendant/Appellant to the Plaintiff/Respondent.