AQUA-LEISURE INDUSTRIES INC. AND ANOTHER v. AQUA SPLASH LTD.

CACV 175/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 175 OF 2002

(ON APPEAL FROM HCA NO. 18928 OF 1998)

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J U D G M E N T

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Hon Le Pichon JA:

1. This is an appeal by the two directors of the defendant from the order of Deputy High Court Judge To which imposed fines on them for the several contempts of court committed by the defendant by breaching an earlier order made by Keith J ("the Keith Order") in a passing-off action.

Background

2. The 1st plaintiff is a manufacturer of swim accessory products for swimming pool or beach use under various trademarks including "Aqua", "Aqua Splash Action" and "Aqua-Leisure". The 2nd plaintiff is the 1st plaintiff's Hong Kong representative. Impag HK Limited ("Impag HK") and Connie Lin Ya Ling (collectively "the appellants") are the directors of Aqua Splash Limited, the defendant in a passing-off action brought by the plaintiffs in November 1998. The defendant which was incorporated in March 1998, was a subsidiary of Impag HK which, in turn, is a subsidiary of Impag Toys Europe BV ("Impag BV"). On 14 May 1999, Keith J struck out the defence and entered judgment in favour of the plaintiffs. The relief granted by that order was substantially in terms of relief sought against the defendant in the amended statement of claim, namely, permanent injunctions to restrain passing-off and the use in connection with any business or trade with swim products the name 'Aqua' as its name or part thereof and ancillary relief requiring the delivery up or destruction of offending articles.

3. On 14 June 2001, the plaintiffs took out a motion for committal for an order that the defendant and Impag HK be fined and that Ms Lin be committed to prison for the several contempts committed by the defendant. It is to be noted that by this date the defendant was already in liquidation, having on 30 November 2000 passed a resolution of its inability to carry on business pursuant to section 228A of the Companies Ordinance.

4. The motion came on for hearing in August 2001 before Deputy Judge To. The committal proceedings complained of breaches of paragraphs 2, 5, 7, 8 and 9 of the Keith Order. The judge rejected some of the complaints but he found that the defendant was in breach of the following paragraphs of the Keith Order:

"5. The Defendant do within 7 days of service of this order deliver up to the Plaintiffs' solicitors all articles including ... name cards ... bearing the name or mark 'Aqua Splash' or any name or mark of which the name 'Aqua' forms part thereof in the possession, custody, power or control of the Defendant.

...

7. The Defendant do within 7 days of service of this order deliver up to the Plaintiffs' solicitors or destroy upon oath or affirmation all articles ... in the possession, power, custody or control of the Defendant, its directors, servants or agents or any of them the use or retention of which would be a breach of the foregoing injunctions.

...

9. The Defendant do within 14 days of service of this order file and serve an affirmation or affidavit made by a duly authorised officer confirming compliance with the Orders in paragraph 4, 5, 7 and 8 above."

He found the appellants liable for contempt with the defendant. Impag HK and Ms Lin were ordered to pay a fine of $200,000 and $50,000 respectively. The plaintiffs were also awarded costs in relation to the contempt proceedings on an indemnity basis, such costs to be borne jointly and severally by the defendant, Impag HK and Ms Lin. It is against this order of Deputy Judge To that the present appeal has been brought.

The judgment below

5. The judge dealt with a number of preliminary matters before considering the specific breaches complained of. On the question of a director's liability for contempt committed by his company, the judge considered that the purpose of Order 45 was to compel compliance by a company with the court's order by the threat of sanction on the company's directors. After referring to English and Hong Kong authorities which he believed to be in conflict, he felt bound by the decisions of this court in Cartier International BV v Kaybee International Ltd [1985] HKLR 127 and Nicolas Pappadiis & Others v Chan Shing-sheung, Barry & Others [1989] 2 HKLR 511 which he read as supporting the proposition that culpability, wilfulness or misconduct on the part of the director served with the order was not necessary for liability under Order 45. The judge then turned to the nature of committal proceedings. Whether they were final or interlocutory would affect the admissibility of hearsay evidence in the form of affidavits. The judge ruled that committal proceedings taken after the final determination of the main action were final rather than interlocutory in nature and the question whether contempt was civil or criminal would depend on the nature of the proceedings in respect of which the protective order of the court was made. As the main action was a civil action, he concluded that the contempt in the present case was civil contempt. He rejected the defendant's submission that where the committal proceedings (being final) are outside Order 41 rule 5, affidavit evidence may not be used. He then considered the admissibility of hearsay evidence contained in affidavits. The judge drew a distinction between affidavits used in interlocutory proceedings containing statements of information or belief which were admissible under Order 41 rule 5 which he considered to be "of a lower quality as evidence and have less probative value" and ordinary hearsay evidence. After referring to Order 38 rule 2 (which dealt with evidence by affidavit) and Order 52 rules 1(3) and 6(4), the judge ruled that affidavits containing evidence as to fact which the deponent himself could have testified in court as well as hearsay evidence admissible under section 47 of the Evidence Ordinance might be used. The judge went on to deal with the specific breaches complained of. For the purposes of this appeal, only the following are pertinent.

Mr Oltmanns' business card

6. A name card bearing the Aqua Splash logo and the name Horst Oltmanns was said to have been found and available at a sales booth rented by Impag BV at the Nuremberg Toy Fair on 29 July 1999, manned by one Mr Sjoers whose business card described him as Sales Manager of Impag HK and by Mr Oltmanns whose card bore the description in German that Mr Oltmanns was the defendant's "German representative". The judge observed that the finding of Mr Oltmanns' card in Nuremberg was supported by credible evidence and stated that the defendant must have had power and control over the cards used by its agent bearing its logo. Although the breach related to one card, the judge inferred from the circumstances that the card was "used" by Mr Oltmanns in the course of business while manning the booth such that the breach went beyond a technical or de minimis breach.

7. As the appellants had been duly served with the order endorsed with a penal notice as required by Order 45 rule 7(3), they were held liable for contempt with the defendant.

The Dongguan investigation

8. On 11 and 12 June 1999, an investigation agency ("Panoramic") retained by the plaintiffs found a torn off portion of a packing list and a production notice, referable to a shipment of goods to "Impag" in the garbage thrown away by Dongguan Guan Pin Plastic Products Factory ("the Guan Pin Factory"). A complaint was made to the Dongguan Technical Supervision Bureau ("TSB") by the plaintiffs' PRC lawyer, Mr Lu Fangming, which resulted in a raid on the Guan Pin Factory on 5 July 1999 by TSB officers and Mr Lu. The inspection culminated in the seizure by the TSB of

"(a) 23,911 pieces of Aqua Splash products of various kinds in stock;

(b) more than 20,000 pieces of Aqua Splash packing boxes and cartons;

(c) more than 30,000 copies of Aqua Splash instruction manuals."

(For convenience, the products under (a) will be referred to as "the Dongguan products" and the boxes and instruction manuals under (b) and (c) will be referred to as "the printed materials" and collectively as "the offending articles".)

9. A month later, the TSB informed Mr Lu that the factory refused to destroy the offending articles seized on the basis of a trademark certificate sent to them from Hong Kong. The fax bore an originating header from Impag HK and was a certificate of a Benelux trademark application for "Aqua Splash" in World Intellectual Property Organisation (WIPO) registered in various European countries and dated 17 June 1999 ("the WIPO certificate"). These matters were deposed to by Mr Lu in his affirmation of 5 August 2000 as well as in the 6th, 7th and 8th affirmations of Douglas Stephen Clark, the plaintiffs' handling solicitor.

10. It is common ground that these affirmations contained hearsay statements. The judge ruled that the evidence was admissible. He rejected the submission that the question whether the defendant had 'control' over the Dongguan products fell to be determined according to the laws of the PRC on the basis that he could apply the presumption that the law in a foreign jurisdiction is the same as the local law. In determining whether the goods were in the power and control of the defendant, the test which the judge applied was whether the defendant had a presently enforceable legal right to possession of the goods in question. Although there was no evidence of the terms of the contract between the defendant and the Guan Pin Factory, the judge was prepared to assume in favour of the defendant that the products would be delivered upon payment and that the property would only pass upon delivery and payment. Nevertheless, he held that in relation to contracts for delivery of specific or ascertained goods, the court had power under section 54 of the Sales of Goods Ordinance, Cap. 26 to order specific performance and if that remedy were available to the defendant, it had a presently enforceable right to possession of the goods in the contract and that whether or not he had paid for the goods or had property in them was not essential. He found the evidence overwhelming that the Dongguan products had been produced for the defendant by the factory for export to Impag BV. He relied, inter alia, on the packing list and the production order, drawing the inference that they related to a transaction involving the sale and/or supply by the defendant or by Impag HK on its behalf to Impag BV.

11. In relation to the printed materials, he found that these had been produced by the United Asia Printing Factory for the defendant and delivered to the Guan Pin Factory. The judge held that because they were specific and ascertained goods, the property in them passed to the defendant upon delivery to the Guan Pin Factory which held them as bailee and agent of the defendant. He did not consider payment to be a relevant factor and held that United Asia had lost its lien upon delivery to the Guan Pin Factory. The judge found the defendant to be in control of the offending articles seized from the Guan Pin Factory and that this constituted a breach of paragraphs 5 and 7 of the Order. The appellants, as directors, were also held liable without the need for any proof of culpable conduct on their part.

12. As to the WIPO certificate, it was unclear from the header whether it was sent on 21 or 1 July 1999. The judge noted that Mr Lu who had seen the original facsimile copy received by the TSB stated that it was dated 21 July. Mr Lu was himself only informed by the TSB on 5 August 1999. The judge reasoned that had that fax been available on 1 July 1999, it would have been used by the factory to resist seizure on 5 July. Based on that reasoning, he inferred that the document showed that Impag HK as a director of the defendant was interested in salvaging the goods such that it warranted the further inference that the defendant had an interest in those products.

Affirmation of compliance

13. In view of the breaches of paragraphs 5 and 7 relating to the business card found in Nuremberg and the offending articles found in the Guan Pin Factory, the judge was of the view that the affirmation of compliance by Ms Lin was inaccurate and, prima facie, that amounted to a breach of paragraph 9 of the Keith Order. In the judge's view, the defendant could not have overlooked the offending articles given the quantities involved. Further, that Mr Oltmanns was allowed to continue to use the business card in the course of business two months after the due date for compliance suggested that the affirmation was made as a perfunctory exercise and could not have been made in good faith after taking all reasonable steps to ascertain its accuracy. He therefore found that the defendant and the appellants were in breach.

14. The appellants were held liable by virtue of the fact that they were directors of the defendant. In imposing fines on the appellants, the judge make due allowance for the plaintiffs' delay in taking out the proceedings. The fine of $200,000 imposed on Impag HK reflected the judge's view that the breach was deliberate and contumacious through Impag HK's attempt to salvage the offending articles from destruction by the TSB i.e. by faxing the WIPO registration document to the TSB. In the case of Ms Lin, whilst accepting that there was no evidence of her active participation in the breach discovered in the Guan Pin Factory and in Nuremberg, nevertheless, Ms Lin had the management of the defendant. Although it was not sufficiently serious to warrant imprisonment, it warranted a substantial fine which was ordered in the sum of $50,000.

This appeal

15. Mr Huggins SC who appeared for the appellants identified seven issues as arising on this appeal, namely, whether (1) the judge was wrong in failing to require proof of the applicable foreign law; (2) the judge was wrong to apply a legal presumption that the relevant foreign laws are the same as Hong Kong law; (3) alternatively, the judge applied Hong Kong law incorrectly to the facts; (4) the judge erred in law as to the basis for the relevant criteria for admitting hearsay evidence; (5) the judge was wrong to apply Order 45 rule 5(1); (6) the form of the punitive order imposed by the judge was fatally defective; and (7) the fines imposed were too harsh. In my view, the critical issues in this appeal are whether the judge was correct in his conclusion that as a matter of law the defendant had control over the offending articles seized in the Guan Pin Factory and the name card seized at the Nuremberg Toy Fair, and whether the correct principles had been applied in admitting hearsay evidence to establish the necessary underlying facts. To these matters I now turn.

Control

16. Did the defendant have control over the offending articles seized in Dongguan? In deciding that question, the judge proceeded on the basis that the law in the foreign jurisdiction was the same as Hong Kong law. Assuming (without deciding) for present purposes that the applicable law was no different from Hong Kong law, the judge's conclusion that the defendant did have control because it had an enforceable right to possession of the Dongguan goods merits closer examination.

17. There was no evidence that the Guan Pin Factory and the defendant were related entities. At the time of the TSB raid, the TSB officers interviewed a person whose English name as it appeared on his business card which was exhibited to Mr Lu's affirmation was "Ian Kao", and whose title was sales manager of the Guan Pin Factory. For reasons not readily apparent, he is referred to as "Mr Gao" rather than Mr Kao in the affirmations of Mr Lu and Mr Clark and by the judge. It may be attributable to the fact that Mr Lu's affirmation was in Chinese and the translator did not have the benefit of seeing the exhibit. Be that as it may, according to the card, the head office was in Taipei under the name of High Crown International Corp. There was also a Hong Kong office under the name of High Crown (International) Limited. Such evidence as was adduced would suggest that vis-à-vis the defendant, Guan Pin was an unrelated third party who had, at some stage, manufactured products for the defendant. According to Mr Kao, Guan Pin was established on 3 August 1985. Mr Kao told the TSB officers that the defendant had informed him of the action brought by the plaintiff in April 1999 and that because it could possibly lose the action, the defendant had requested that all its products be finished and delivered before the end of April and that starting 1 May 1999 no more "Aqua Splash" products should be put into production. He also stated that there were "overruns".

18. Underpinning the judge's finding of control was the finding that the Dongguan products were produced for the defendant for export to Impag BV. The judge appeared to have based this finding on the following matters: (a) Mr Kao told the TSB officers that the Guan Pin Factory was commissioned to produce goods for the defendant; (b) this was confirmed by Mr De Vries when he was examined under Order 48 rule 1; (c) it was supported by the finding of the packing list and production order found on 11 and 12 June. As will become apparent, I have considerable reservations as to whether there was sufficient evidence to support such a finding.

19. Whilst it is clear that prior to 1 May 1999 goods had been produced for the defendant, according to Mr Kao, the defendants had requested that no more Aqua Splash products should be produced starting from 1 May 1999. There was also the explanation proffered that the Dongguan products might have been overruns but this was not even mentioned by the judge. Whilst some 24,000 pieces might appear excessive for overruns, that has to be seen in context and would depend on the size of the orders about which there appeared to be little evidence. Turning to the evidence of Mr De Vries, the extracts in the appeal bundle show that the examination was directed at the financing arrangements of the group of which the defendant was part. There were no specific questions put relating to production orders placed on the Dongguan products. Rather, he was asked in general terms about the role of the different companies in the group without a specific time-frame. That the Factory had in the past produced goods for the defendant is neither here nor there in view of what Mr Kao stated to be the defendant's instructions as to the ceasing of production. There would not appear to be anything in Mr De Vries' evidence to link the Dongguan products to the defendant. The production order and packing list do not take matters further. The client named in the production order was Impag and not the defendant. As that is referable to at least two entities - Impag HK and Impag BV - one cannot rule out the possibility that the order had emanated from Impag BV. It was also a post-April 1999 order, being dated 9 May 1999 when, according to Mr Kao, production for the defendant had ceased.

20. The judge appeared to derive comfort for his finding from the inference he felt able to draw from the WIPO certificate faxed from Impag HK. In passing, it should be noted that at the hearing, the appellants were content not to challenge the judge's finding that the WIPO certificate was faxed to the Guan Pin Factory on 21 July 1999. The inference drawn by the judge appears at paragraph 55, where it is stated as follows:

"The [WIPO certificate] shows that Impag HK, as a director of the Defendant, was interested in salvaging the goods. The inference must be that the Defendant had an interest in those products."

Were the inferences warranted?

21. It is apparent from the 'Explanation' attached to the WIPO certificate that the certificate was not evidence of registration of the mark: it meant nothing more than that the mark had been applied for in the countries indicated on the certificate. The mark could still be rejected either ex officio or at the request of third parties save in Algeria, North Korea and San Marino where registration follows automatically. That being the effect of the WIPO certificate, I have considerable difficulty with the inference drawn by the judge. On any footing, the WIPO certificate was not a 'trademark certificate' since the present case does not involve any of the 3 countries where registration is automatic. That being so, it could not reasonably have been considered a valid basis for resisting the destruction of the offending articles. Moreover, the sending of the WIPO certificate was equally consistent with an innocent purpose. It is to be noted that there is a manuscript annotation on the face of the WIPO certificate which suggests that a copy had been sent to High Crown, the parent of the Guan Pin Factory. There would be nothing exceptional in sending a copy to its subsidiary. There was thus no compelling basis for inferring that Impag HK's purpose in sending it was to salvage the offending articles, much less the further inference that the defendant had an interest in them.

22. More importantly, given the terms of paragraphs 5 and 7 of the Keith Order, they cannot affect articles which come into existence after the expiration of 7 days from the service of the order i.e. 25 May 1999. There was simply no evidence of when the Dongguan products were manufactured. Once it is accepted that it is at least possible that the Dongguan products could have been produced after 25 May, I have to say that it is difficult to see how the alleged breaches can be made good since the standard is proof beyond reasonable doubt.

23. Be that as it may, if (contrary to my view) the Dongguan products had been produced for the defendant and assuming for present purposes that they had come into existence pre-25 May 1999, it could not be said that they were in the 'control' of the defendant since the Dongguan products were in the possession of a third party and there was no evidence of payment. Section 54 of the Sale of Goods Ordinance relied on by the judge does not assist. That section provides:

" In any action for breach of contract to deliver specific or ascertained goods, the court may, if it thinks fit, on the application of the plaintiff, by its judgment direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages. The judgment may be unconditional, or on such terms and conditions as to damages, payment of the price, and otherwise, as to the court may seem just. The application by the plaintiff may be made at any time before judgment."

Control which is dependant on the exercise of a discretionary power vested in the court is not enough. Putting the matter at its highest, the defendant has no more than an expectation that the discretionary power might be exercised in his favour.

24. Control would cover the right to tell the possessor what is to be done. See per Somervell LJ in Dollfus Mieg et Compagnie SA v Bank of England [1950] 1 Ch 333 at 359. If payment had not been made, the defendant would not have such a right. The same reasoning applies to control of the printed materials. Since there was no evidence of payment either for the Dongguan products or the printed materials, the judge was wrong in holding that the offending articles were in the 'control' of the defendant.

25. As to the question of control over Mr Oltmanns' business card, the same point can be made as to the absence of any evidence as to whether the card was in existence prior to 25 May 1999, bearing in mind that it was only found on 29 July 1999.

26. Further, there are difficulties with the judge's finding of control over the business card. First, there was no evidence that Mr Oltmanns was in the defendant's employ on 29 July 1999. Rather, the evidence from Koop Keizer, the personnel manager of Impag BV was that he was an independent sales representative engaged by Impag Spiel-und Sportwaren Gmbth (a company within the Impag BV group) who was paid on a commission basis. The judge made no mention of this evidence nor state why it should be rejected. Second, there was no evidence that the defendant knew of the use of the card by Mr Oltmanns. For these reasons, the judge's finding of control cannot be sustained.

Hearsay evidence

The business card

27. Mr Clark deposed to the raid carried out by the plaintiffs' lawyers in Germany although he was not party to it. Paragraph 14 of his 7th affirmation read:

"In co-operation with the criminal investigation department in Nuremberg, Germany, the Plaintiffs through their lawyers in Germany, raided the sales booth and exhibition room rented by Impag B.V. at the Toy Exhibition in Nuremberg at Feststanshalle 12, Karl-Schonleben-Str. 65,90471, Nuremberg, on 29th July 1999. The sales booth was manned by two individuals: Mr. Marco Sjoers and Mr. Horst Oltmanns. Their respective budiness cards were available at the booth. Mr. Sjoers business card stated that he was a Sales Manager of Impag HK Limited, whereas Mr. Oltmanns' business card stated that he was a German representative of 'Aqua Splash Limited' and bore the 'Squa Splash' logo. Copies of the respective business cards of Mr. Sjoers and Mr. Oltmanns taken from the sales booth are now produced and shown to me marked 'DSC-33'."

It is accepted by the plaintiffs that exhibit DSC 33 in fact exhibited business cards actually delivered up by the defendant in Hong Kong pursuant to the Keith Order and not what Mr Clark thought he was exhibiting. This error remained uncorrected until Mr Clark's examination in chief, when exhibit "P1" was tendered in evidence. This was a letter dated 30 August 1999 from the plaintiffs' German lawyer to the plaintiffs' Hong Kong solicitors attaching a copy of the cards. In pertinent part it read:

"In reference to above mentioned trademark case, please be informed, that we had been able to seize the sales samples of Aqua Splash at the permanent sales booth of impag B.V. at the premises of the Toy Fair in Nuremberg on July 29, 1999 through the criminal investigation department, .... The confiscation was supervised by Mr. Knoll from the detective force in presence of my colleague Mr. Holger Hoffmann from our law firm. ...

...

According to the police, the manager in charge has to expect a substantial fine. His name is Marco Sjoers, Sales Manager of impag H.K. Ltd., according to the business card of which we have enclosed a copy, together with the business card of the German representative Mr. Horst Oltmanns. Both cards were available at the booth."

The author of the letter was an attorney by the name of Frank A Dassler.

28. Two matters might be noted: first, the contents of the letter were not deposed to; second, the writer never identified his source of information. What is clear is that the writer himself also did not take part in the raid. Thus not only did the evidence involve multiple hearsay, the source of information was also not identified.

The Dongguan products

29. The evidence relating to the raid on the Guan Pin Factory was mainly to be found in the affirmation of Mr Lu. Whilst Mr Lu was present at the time of the raid and was thus able to depose to what he witnessed, his affirmation is replete with hearsay evidence as is apparent from the following passages:

"11. During my inspection of the factory, I had the chance to speak with some factory employees. I questioned these employees about the Aqua Splash items and packaging we were seeing and asked specifically where these items came from. Some of the employees told me that they items belonged to a company called Aqua Splash which was located in Hong Kong.

...

13. The TSB verified the following Aqua Splash goods discovered at the factory:

(a) ...

...

16. On 5 August 1999, I was informed by the TSB that Guan Pin had said that they would not destroy the Aqua Splash products and packaging which was detained in the course of the 5 July 1999 inspection. The TSB told me that Guan Pin reasoned their refusal to destroy the products on the basis of a trademark certificate sent to them from Hong Kong. ... Upon my verification, the facsimile bears an origination header of 'IMPAG H.K. LTD' and is dated 21 July 1999. ..."

30. As to the production notice and packing list upon which the judge placed considerable reliance, no evidence was filed by Panoramic or its agent or employee who found the same. Rather, these matters were dealt with by way of hearsay statements in Mr Clark's 7th affirmation. At paragraph 6, it is stated that:

"6. ... Panoramic conducted ... searches on 11th and 12th June, 1999, and recovered, inter alia, two relevant documents. The first was a torn off portion of a packing list which is now produced and shown to me together with an English translation marked 'DSC-29. The second was a production notice which is now produced and shown to me together with an English translation marked 'DSC-30'."

31. Mr Huggins SC who appeared for the appellants did not contend that hearsay evidence was wholly inadmissible. His position was that the admissibility of hearsay was governed by the old regime i.e. prior to the amendments introduced by the Evidence (Amendment) Ordinance (No. 2 of 1999). The amendments to the Evidence Ordinance became effective in June 1999 whilst the proceedings as a whole began in November 1998. On the basis that committal proceedings are merely ancillary and incidental to the proceedings in which the relevant order was made rather than separate proceedings, he argued that the amendments were not applicable. The appellants' alternative submission was that even if the provisions of the new hearsay regime were applicable, in estimating the weight to be given to such evidence, the judge failed to have regard to the statutory considerations that had to be taken into account pursuant to section 49 of the Evidence Ordinance. Moreover, where (as in the present case) there was multiple hearsay, the failure to identify the source of the information or the chain of evidence meant that the appellants were effectively denied the benefit of section 48 of the Evidence Ordinance which gave them a right to apply to cross examine the maker of the hearsay statements.

32. I propose to deal with the alternative submission first and proceed on the basis that the new hearsay regime was applicable. Section 49 of Cap. 8 which is entitled 'Considerations relevant to weighing of hearsay evidence' reads:

"(1) In estimating the weight, if any, to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) For the purposes of subsection (1), regard may be had, in particular, to the following-

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight;

(g) whether or not the evidence adduced by the party is consistent with any evidence previously adduced by the party."

33. The first matter to note is that section 49 is framed in mandatory terms i.e. "the court shall have regard ..." to, inter alia, the circumstances set out in subsection 2 if any inference can reasonably be drawn from them as to the reliability or otherwise of the evidence. There is nothing in the judgment to suggest that the judge had section 49 in mind when evaluating the weight of the evidence adduced by the plaintiffs. Not once did he allude to the statutory considerations contained in section 49 such as multiple hearsay or the absence of any attempt to identity the source of the information and chain of evidence. Nor did the judge allude to section 48 which provides that:

"Rules of court may provide that where a party to civil proceedings adduces hearsay evidence of a statement made by a person and does not call that person as a witness-

(a) any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine him on the statement as if he had been called by the first-mentioned party and as if the hearsay statement were his evidence in chief;"

In cases of multiple hearsay where the source of the information or chain of evidence has not been identified, section 48 is rendered ineffectual in that the party for whose benefit that section was enacted cannot in practice avail itself of the procedure contained in that section.

34. In my judgment, the apparent failure of the judge to take sections 48 and 49 into account when evaluating the evidence would warrant the setting aside of the judgment below.

35. It is therefore not strictly necessary for me to address the submission that hearsay was admissible only under the old regime because the committal proceedings were not separate proceedings. In this connection, I need only mention that there was considerable debate during the appeal whether the committal proceedings were final or interlocutory in nature. This was thought relevant to the issue whether contempt proceedings were separate and free standing or whether they were incidental to and ancillary to the main proceedings and arising out of the order already made in the action itself. Both parties relied on Savings and Investment Bank Limited v Gasco Investments (Netherlands) BV (No. 2) [1988] 1 Ch 422 in support of their respective positions. That case concerned undertakings offered and accepted to preserve assets in the UK to protect what would be the fruits of victory in the main suit if not the property which was the subject matter of the action itself. Purchas LJ held (at 436C) that a motion to commit may be either interlocutory or final depending upon the purpose for which the order or undertaking was given. If the true purpose of a motion to commit for contempt is to enable the proper conduct of the trial and the final resolution of the issues between the parties, the proceedings are interlocutory. Russell LJ adopted a similar approach. See his judgment at 448B.

36. Had it been necessary to apply the test adumbrated by Purchas LJ to the facts of the present case, the committal proceedings cannot be other than final since the action has been disposed of and final judgment given long before the committal proceedings. But as I have said, this debate has been rendered academic in view of my conclusion that the judge had failed to apply the correct criteria for the new hearsay regime. In the result, his findings, based as they were in substantial part on hearsay evidence, cannot stand.

Conclusion

37. My conclusions on the issues of control and hearsay are sufficient to dispose of this appeal. The judgment below must be set aside. I would allow the appeal and make an order nisi that the appellants do have their costs both here and below.

Other matters

38. Save in one respect, I do not propose to deal with the other issues raised in the appeal, namely, proof of foreign law, the application of the presumption that foreign law is the same as Hong Kong law, Order 45, the form of the order and the fines. In his discussion of a director's liability for his company's contempt, the judge considered that there was a difference in approach between the Hong Kong and English courts. However, the judge was not referred to the decision of this court in Excel Noble Development Ltd v Wah Nam Group Ltd [2001] 4 HKC 148 where (at 156D-157H) Rogers VP traced the history and case law concerning Order 45 and explained why in fact there is no difference in approach.

Hon Yuen JA:

39. I agree with the judgment of Le Pichon JA which I have had the benefit of reading in draft. I would only like to add the following two observations.

40. First, in relation to the goods found in Dongguan, it has to be noted that the goods were in the physical possession of Dongguan Guan Pin Products Factory, a company which was not in the prima facie control of the defendant (such as a subsidiary). Therefore, for the Plaintiffs to show that the goods found in Guan Pin's possession were in the "possession, custody, power or control" of the defendant within the terms of the Keith Order, it was necessary for the Plaintiffs to show that the defendant had some legal right to the goods. That would depend on the terms of the contract between Guan Pin and the defendant. Unfortunately the contract was not in evidence. It would appear no order had been obtained for disclosure of the contracts between the defendant and its manufacturers on the Mainland, notwithstanding the fact that the defendant had volunteered the information in its Defence that its goods were manufactured on the Mainland.

41. Secondly, I would observe that even if the WIPO certificate had been faxed from Impag HK to Guan Pin with a view to resisting seizure of the goods, the inference that Impag HK's interest in salvaging the goods was "as a director of the defendant" was not the only reasonable inference that could have been drawn, as Impag HK was a subsidiary of Impag BV and may well have been acting at Impag BV's behest.

Hon Waung J:

42. I agree. For the reasons given by Le Pichon and Yuen JJA, I too would allow the appeal.