CHAN WAI TAK v. CHAN MAU PING AND OTHERS

HCA2321/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2321 OF 2009

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BETWEEN

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D E C I S I O N

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BACKGROUND

1.  In his Supplemental Witness Statement dated 22 August 2011, in response to allegations made by the 1^st defendant in his Supplemental Witness Statement dated 1 August 2011 that the plaintiff is not the owner of the 7^th defendant, the plaintiff referred to and produced various documents with a view to demonstrating that the 1^st defendant actually knew very well of the plaintiff’s interest in the 7^th defendant.  Such documents consisted of several affirmations filed in committal proceedings commenced by the plaintiff against the 3^rd defendant complaining of the 3^rd defendant’s breach of the undertaking given by him to the court on 4 December 2009 as well as selected exhibits to such affirmations. Some of those affirmations and documents related to an e-mail purportedly sent by Mary Lu which suggested that Mary Lu and other former staff of the 7^th defendant had been asked by the plaintiff to fabricate evidence against the 3^rd defendant.  The affirmations and documents also included an affirmation made by the plaintiff in which the plaintiff had sought to demonstrate that the disputed e-mail was a forgery, forged by using a simple computer trick. 

2.  The plaintiff adverted to the fact that the Honourable Mr Justice Chung, who tried the committal proceedings, had found that one of the alleged e-mails “could well have been fabricated” and had found the 3^rd defendant to be in contempt of court in breach of the undertaking which he had given to the court.  The Judgment of the Honourable Mr Justice Chung is already included in the trial bundles. 

3.  In his Supplemental Witness Statement, the plaintiff also adverted to the fact that an officer of the Commercial Crime Bureau of the Hong Kong Police had recently invited him to ask Mary Lu to provide information about the use of the allegedly forged e-mail in the committal proceedings and that he had been told by the officer that the matter had been referred to them for investigation by the Secretary for Justice.  The plaintiff then went on to say that he had been advised by the solicitors that, in those circumstances, it was likely that the matter had been referred by the Honourable Mr Justice Chung to the Secretary for Justice for investigation. 

4.  The plaintiff then went on to observe that the fact that the 1^st defendant had gone to such lengths to provide to the 3^rd defendant the allegedly forged e-mail to help the 3^rd defendant in defending the committal proceedings was evidence that both the 1^st and 3^rd defendants were involved in the plot to rob him of the 7^th defendant. 

THE APPLICATION

5.  By Summons dated 23 August 2011, the 1^st, 2^nd and 6^th defendants (hereinafter referred to collectively as “the defendants”) now apply to strike out paragraphs 36 to 44 (“the Disputed Paragraphs”) of the Supplemental Witness Statement of the plaintiff which raised the aforesaid matters.  The application is said to be made under Order 38 rule 2A(13) of the Rules of the High Court and the Court’s inherent jurisdiction. 

6.  Before dealing with the grounds relied upon by the defendants in support of the application, I should first state that I find that the defendants reliance on Order 38 r. 2A(13) is wholly misconceived. 

7.  Order 38 r. 2A(13) provides as follows :

“The judge may refuse to give a direction under paragraph (12) in relation to a witness statement, or may exclude from such a direction any words or passages in a statement, if he considers that inspection should not be available-

(a) in the interests of justice on national security;

(b) because of the nature of any expert medical evidence in the statement; or

(c) for any other sufficient reason.”

8.  Order 38 r. 2A(12) provides as follows :

“Subject to paragraph (13), the judge shall, if any person so request course of the trial, direct the Clerk of Court to certify as open to inspection any witness statement which was ordered to stand as evidence in chief under paragraph (7)(a).”

9.  It is accordingly clear that Order 38 r. 2A(13) has nothing to do with applications to strike out witness statements or parts of witness statements. 

10.  The defendants’ application is made on 3 grounds :

(a)   the finding of the court in the committal proceedings is inadmissible;

(b)   the Disputed Paragraphs are scandalous, irrelevant or oppressive; and

(c)   the contents of the Disputed Paragraphs in themselves may be a violation of the criminal law itself.

11.  I shall deal with each of these grounds in turn. 

Ground (a)

12.  The defendants argue that “it is a well-settled principle that evidence/finding/conviction of court is inadmissible” (sic). In support of such proposition, the defendants’ counsel rely upon Hollington v. Hewthorn & Co. Ltd [1943] 1 K.B. 587 where the English Court of Appeal held, at p. 596, that :

“A judgment obtained by A against B ought not to be evidence against C, for, … ‘It would be unjust to bind any person who could not be admitted to make defects, or to examine witnesses or to appeal from the judgment he might think erroneous: and therefore … The judgment of the court upon facts found, although evidence against the parties, and all claiming under them, are not, in general, to be used to the prejudice of strangers.’ This is true, not only of convictions, but also of judgments in civil actions. If given between the same parties they are conclusive, but not against anyone who was not a party.”

13.  Whilst the defendants’ submission that “it is a well-settled principle that evidence/finding/conviction of court is inadmissible” (sic) is unsupported by authority and clearly incorrect, the above statements of principle in the judgment of the English Court of Appeal are uncontroversial and trite.  However, I accept the submission of Mr Lee Tung Ming, counsel for the plaintiff, that in making reference to the committal proceedings and the evidence which was filed in such proceedings, the plaintiff is not seeking to rely on any judgment or finding of the court in the committal proceedings.  Instead, what the plaintiff is seeking to do is to invite this court to find that the 1^st defendant had provided the disputed e-mail to the 3^rd defendant to help the 3^rd defendant in defending the committal proceedings and that this was evidence that both the 1^st and 3^rd defendants were involved in the plot to rob the plaintiff of the 7^th defendant.  Whether or not I will make such findings will depend on the evidence which will emerge at this trial.  The plaintiff is not contending that I should make such findings by reason of the findings of the Honourable Mr Justice Chung.  I do not accordingly see any merit in this ground relied upon by the defendants.

Ground (b)

14.  The defendants’ argument under this ground is that the purpose of the committal proceedings was to determine whether the 3^rd defendant had breached his undertaking and that the ownership of the 7^th defendant had not been touched upon in those proceedings.  That is uncontroversial.  The defendants then go on to argue that “Not only the finding in that proceedings is not relevant to the present trial but the prejudicial value outweighted its evidential value.”(sic).  The defendants accordingly argue that if the Disputed Paragraphs were allowed to remain, “the 1st Defendant would have substantial prejudice as when the finding was made he was not entitled to dispute within that proceedings, which means the 1st Defendant would suffer from one-sided attack”. 

15.  I see no merit in this ground either.  As I have indicated above, the evidence contained in the Disputed Paragraphs is to support the plaintiff’s case that the 1^st defendant had provided the disputed e-mail to the 3^rd defendant to help the 3^rd defendant in defending the committal proceedings and that this was evidence that both the 1^st and 3^rd defendants were involved in the plot to rob the plaintiff of the 7^th defendant.  I do not understand the plaintiff to be contending that I am bound to make such findings based on the findings of the Honourable Mr Justice Chung in the committal proceedings. 

Ground (c)

16.  In support of this last ground, the defendants relied upon the provisions of the Organised and Serious Crime Ordinance (Cap. 455) and specifically sections 3, 4 and 7 and Schedule 2 thereof. 

17.  Section 3(1) of the Ordinance provides that :

“The Secretary for Justice may, for the purpose of an investigation into an organized crime, make an ex parte application to the Court of First Instance for an order under subsection (2) in relation to a particular person or to persons of a particular description.”

18.  Section 3(2) of the Ordinance provides that :

“The Court of First Instance may, if one such an application it is satisfied that the conditions in subsection 4(a), (b) and (d) or subsection 4(a), (c) and (d) are fulfilled, make an order complying with subsection (3) in respect of the particular person, or persons of the particular description, to whom the application relates.”

19.  Section 4(1) of the Ordinance provides that :

“The Secretary for Justice or an authorized officer may, for the purpose of an investigation into-

(a) an organized crime; or

(b) the proceeds of organized crime of any person who has committed or is suspected of having committed an organized crime; or

(c) the proceeds of a specified offence of any person who has committed, or is suspected of having committed, that specified offence,

make an ex parte application to the Court of First Instance for an order under subsection (2) in relation to particular material or material of a particular description, whether in Hong Kong or, in the case of an application made by the Secretary for Justice, elsewhere.”

20.  Section 7(1) of the Ordinance provides that :

“Where an order under section 3 or 4 has been made or has been applied for and it has not be refused or a warrant under section 5 has been issued, a person who, knowing or suspecting that the investigation in relation to which the order has been made or applied for or the warrant has been issued is taking place-

(a) without lawful authority reasonable excuse makes any disclosure intending to prejudice the investigation; or

(b) …

commits an offence.”

21.  The defendants argue that there is an investigation ongoing and that any disclosure of the investigation would be an offence under section 7 of the Ordinance and will certainly prejudice the investigation.  They therefore contend that the court should exercise its discretion not to allow the evidence in the disputed paragraphs of the plaintiff’s Supplemental Witness Statement. 

22.  I am of the view that the defendants’ argument is misconceived.  As submitted by Mr Lee, one of the preconditions for the application of section 7 is that an order under section 3 or 4 of the Ordinance has been made or has been applied for and has not been refused.  There is nothing before me to indicate that any order under section 3 or 4 has been made or has been applied for.  Nor is there any evidence that the plaintiff has made any disclosure intending to prejudice an investigation being made pursuant to an order made or applied for under section 3 or 4 of the Ordinance.  There is accordingly no merit in this last ground relied upon by the defendants. 

23.  In the circumstances, I dismiss the defendants’ application.