HAN’S REAL ESTATE (HONG KONG) LTD AND OTHERS v. APEX CONSTRUCTION HOLDINGS CO LTD AND OTHERS

HCA 1886/2018

[2021] HKCFI 2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1886 OF 2018

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DECISION

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Introduction

1.  By summons dated 5 October 2020, the 1^st and 2^nd defendants apply for an order that they be released from the undertakings which they gave to the court on 14 September 2018 (“the Undertakings”).  That was the return day for an ex parte injunction granted to the 1^st plaintiff on 7 September 2018 (“the Injunction”).  (The Injunction and the present application do not concern the 3^rd defendant.  I shall refer to the 1^st and 2^nd defendants below generally as “the defendants”.)

2.  In gist, the basis of the defendants’ application is that the affirmations filed by the 1^st plaintiff in support of the Injunction contained false and/or inaccurate evidence.  To date, the 1^st plaintiff has failed to provide any explanation for such falsity and/or inaccuracies.  The defendants contend that since the Injunction and the Undertakings were obtained by the 1^st plaintiff based on incorrect or false information, the Undertakings must be discharged.

3.  The defendants seek to demonstrate that the supporting affirmations contained false or inaccurate evidence by relying on the oral evidence given by the deponents of four of those affirmations in a criminal trial in WKCC 5119/2018.  The trial took place in January 2019 at the West Kowloon Magistrates’ Court (“the Criminal Trial”).  In that trial, the 2^nd defendant was charged with two counts of criminal intimidation.  He was acquitted after trial. 

4.  The defendants say that in the Criminal Trial, the four deponents admitted under oath that their respective affirmations contained inaccuracies and/or allegations which in fact did not happen.

The action

5.  The background to the action is a memorandum of understanding signed by the 1^st plaintiff and a company called Apex Global Investment Holdings Company Limited, which is the parent company of the 1^st defendant.  The plaintiffs’ case is as follows.

6.  The MoU was signed with a view to exploring co-operation in future land development projects.  It expressly provided that it was not legally binding and that for each project, the parties must separately sign an agreement for it.

7.  Subsequently, the 1^st plaintiff had concerns and reservations about Apex Global’s business methods and dealings.  The 1^st plaintiff did not pursue the co-operation further.

8.  To the 1^st plaintiff’s surprise, the 1^st defendant issued an invoice to it in June 2018 for $3,000,000 allegedly for works done in “Design and Build Services”.  The 1^st plaintiff then terminated the MoU and told the 1^st defendant that it was only prepared to pay for actual work as assessed by independent assessors.  (According to the 1^st plaintiff’s assessors, the alleged work was worth about $60,000 to $90,000.)

9.  The 1^st defendant then issued another invoice to the 1^st plaintiff claiming $10,000,000 for alleged loss of profit on the MoU.  The 1^st plaintiff did not pay the invoice.

10.  What followed, the 1^st plaintiff says, was a campaign of intimidation, harassment and unlawful interference against the 1^st plaintiff, its directors and staff and its contractors in order to bring the 1^st plaintiff to its knees and to comply with the 1^st defendant’s demands.  The 1^st plaintiff says that the 2^nd defendant was the prime-mover of the campaign, acting as the agent of the 1^st defendant.  It was this campaign which led the plaintiffs to commence the action against the defendants on 13 August 2018.

11.  The plaintiffs seek, among other things, injunctive relief against the defendants to restrain them from entering into the 1^st plaintiff’s office premises in Wanchai, interfering with the 1^st plaintiff’s interest in the building site at 201, 201A, 203 and 203A Yee Kuk Street, Shamshuipo, Kowloon, of which the 1^st plaintiff is the owner and occupier in possession (“the Building Site”) and intimidating and/or harassing the 1^st plaintiff.

The Injunction

12.  What prompted the 1^st plaintiff to apply for the Injunction was an incident which took place at the Building Site on 31 August 2018.

13.  It is the 1^st plaintiff’s case that on that day, the defendants brought their muscle men to intimidate workers at the Building Site, made threats to them, demanded them to leave immediately and close down the site.  The ground investigation works which were then ongoing were brought to a halt.

14.  In support of its application for the Injunction, the 1^st plaintiff filed six affirmations.  Relevant to the present application are four of those affirmations made by the staff of Hanki Contracters (HK) & Associate Limited (“Hanki”).  At that time, Hanki was engaged as the contractor to carry out surveying work at the Building Site. 

15.  The four deponents were:

(a)     Ng Sheung Tat Kelvin, a chartered building engineer and a director of Hanki;

(b)     Leung Yau Sing, a construction site worker;

(c)     Ko Kwok Wai, another construction site worker; and

(d)     Tse Kwai, a machine operator.

16.  The case presented by the 1^st plaintiff to the ex parte judge on 7 September 2018 was based primarily on the evidence of the above four deponents.  Its case was that intimidation and threats were made by the 2^nd defendant and his cronies against Hanki’s staff.  More specifically:

(a)     An unidentified man in baseball cap told Hanki’s workers to stop the machines, get changed and leave the site immediately.

(b)     The workers were told that more people would be coming and they should shut down the Building Site (拉閘).

(c)     The 2^nd defendant told the workers that they had better believe that he could call in 100 people to the site and throw out their pipes and drills and destroy their machinery.

(d)     The 2^nd defendant scolded Kelvin Ng and asked why he dared call the police.

(e)     The 2^nd defendant said that they had taken Kelvin Ng’s photograph and told Kelvin Ng not to enter Yee Kuk Street, otherwise they would beat him up every time they saw him there.

(f)     The defendants put locks to the roller shutters at Lots 201 and 203A of the Building Site.  No access could be gained by Hanki to retrieve its machinery.

17.  The Injunction was granted on an ex parte basis on 7 September 2018 in the following terms:

“That the 1^st Defendant whether acting by itself, its directors, officers, servants or agents or any of them or otherwise howsoever and the 2^nd Defendant whether acting by himself, his servants or agents or any of them or otherwise howsoever be restrained until after the hearing and determination of the 1^st Plaintiff’s summons filed herein on 7 September 2018 or until further order of this Court from

(a) Visiting, entering and/or remaining in or at the 1^st Plaintiff’s building site at 201, 201A, 203 and 203A, Yee Kuk Street, Shamshuipo, Kowloon, Hong Kong (‘the Building site’) and/or other premises owned, possessed and/or occupied by the 1^st Plaintiff without the 1^st Plaintiff’s consent in writing;

(b) Coming or staying within the vicinity of a radius of 50 metres of the entrances of the Building Site;

(c) Making any request or demand for any work in or at the Building Site to stop or otherwise interfering with or disrupting any such work, whether directly or indirectly and whether verbally or in writing, or by any other means whatsoever;

(d) Intimidating, harassing, interfering with and/or causing or threatening any harm, distress or anxiety to the 1^st Plaintiff’s directors, officers, servants and agents including any staff and workers of any of the 1^st Plaintiff’s contractors in carrying out any work in or at the Building Site, whether directly or indirectly and whether verbally or in writing, or by any other means whatsoever; and/or

(e) Interfering in any way whatsoever with the 1^st Plaintiff’s servants and agents in breaking any of the locks at the Building Site,

or authorizing, procuring, causing, enabling or assisting others to do the above acts or any them; …”

18.  The return day was fixed for 14 September 2018.

19.  Before the return day, the 1^st plaintiff took out a summons to continue the Injunction until after judgment or further order.  The defendants took out a summons asking for the Injunction to be discharged or, alternatively, be varied such that the distance set out in sub-paragraph (b) be changed from 50 metres to 3 metres.

20.  On the return day, the defendants gave the Undertakings, which were effectively in the same terms as the Injunction save that the distance in sub-paragraph(b) was changed to 15 metres.  The Undertakings were to be effective until after judgment or further order or the completion of the work at the Building Site, whichever is earlier.  I was told at the hearing that the work has not yet been completed.

21.  On the basis of the Undertakings, at the inter partes hearing, the judge made no order on the two summonses.

22.  No substantive evidence was filed by the defendants to dispute the alleged incident.  (The 2^nd defendant only complained about the notice given and the scope of the Injunction in a short affirmation.)

The Criminal Trial

23.  The 2^nd defendant was subsequently charged with two counts of criminal intimidation against Kelvin Ng in respect of the incident on 31 August 2018.  Among the prosecution witnesses were Kelvin Ng, Leung, Ko and Tse.  As mentioned above, each of them made an affirmation which the 1^st plaintiff relied on to apply for the Injunction. Kelvin Ng was a major prosecution witness in the Criminal Trial.

24.  The 2^nd defendant was acquitted of both charges. 

25.  In the present application, however, Mr Chase Pun, counsel for the defendants, did not rely on the fact of the acquittal as a ground for seeking the release order.  Instead, he pointed to some of the oral evidence of Kelvin Ng, Leung, Ko and Tse given in the Criminal Trial, and submitted that in the oral evidence identified by him, they admitted that their respective affirmations contained inaccuracies and/or allegations which in fact did not happen and/or contrary to the statements they had made with the police.  I shall refer to this ground as “the falsity ground”.

26.  Mr Pun submitted that had the ex parte judge known about the truth, the Injunction would hardly have been granted.  Further, if on the return day the court had known that incorrect or false information had been given to the court at the ex parte hearing, the Injunction would have been discharged without consideration of the merits and the defendants would not have been required to give the Undertakings.  In the circumstances, the defendants contend that they should now be released from the Undertakings.

The oral evidence in the Criminal Trial

27.  In order to determine whether the defendants have made out the falsity ground, it is necessary to reproduce the relevant parts of the supporting affirmation of each of the four deponents and look at them side by side with the related oral evidence given by that deponent in the Criminal Trial.

28.  First, Kelvin Ng’s evidence.  He would appear to be the main deponent in the application for the Injunction and the main prosecution witness.

29.  In his affirmation, he stated:

“12. Mr. Law was fierce and intimidating in manner and language and warned us that we had better believe that he could call in 100 people to come to the site, dismantle our machines and throw out our pipes (通) and drill poles (鑽杆).

…

16. After the departure of the police officers, I was surrounded by several men brought by the 2^nd defendant. The 2^nd Defendant scolded me and asked why I dared call the police. He said that they had taken my photograph and told me not to enter Yee Kuk Street ever again, otherwise they would beat me up every time they see me there (見一鑊、打一鑊). I explained to the 2^nd Defendant that it was not me who called the police.” (underline added)

30.  Mr Pun submitted that in the Criminal Trial, Kelvin Ng admitted that his affirmation contained inaccuracies and/or allegations which in fact did not happen.  He admitted that he was aware that his affirmation was crucial in the ex parte application.  Yet, he was unable to explain the inaccuracies.  Mr Pun relied on the following evidence:

“問: 咁跟住我再問「你除咗喺差館落個嘅書面供詞之外，你就住嗰度民事禁制令亦都落過一份誓章，宣誓底下簽嘅一份文件，監誓嘅律師都講咗俾畀你聽個內容必須真確，否則的話，可能會構成發假誓嘅刑事罪行，而當中係好清楚用英文寫咗係話抌啲通同埋鑽桿，亦都用中文括住，特登將個「通」同埋「鑽桿」呢幾個字係用中文括住寫咗喺度添，你亦都記得，係咪?

答: 係。

問: 係。咁跟住我再問你囉，咁點解既然被告喺現場冇講過「通」，冇講過掉你啲通，冇講過話掉你啲鑽桿，點解喺份誓章，呢份嚴肅嘅法律文件上面，你會聲稱話被告人講過一啲而事實上佢冇講過嘅說話㗎? 你解唔解釋得到?

答: 解釋唔到。

…

問: 係， 事實上被告人亦都冇講話影咗你相，認得你個樣，啱唔啱?

答: 係。

問: 冇㗎嘛，係咪呀？

答: 冇。

問: 唔，你亦都冇見到被告人有影你相吖，係咪?

答: 冇，冇見到被告影，冇。

問: 冇見到嘅?

答: 係。

…

答： 但係佢係冇--佢係冇親口講話佢係影咗我相。

問： 係囉，我知道呀，我哋嘅案情都係話被告冇咁樣講架。咁但係我個問題，就係點解你喺誓章嗰度要加插呢一句說話，話被告有咁講吖？

答： 我…

問： 解唔解釋到呀？

答： 解釋唔到。

問: 係咪又係大族嘅律師寫咗����份誓章，寫咗呢個段落，跟住就你簽落去宣誓呀？

答： 係--係囉，嗰日係我一路敍述個過程，跟住佢律師咪一路寫落去囉，記錄番低囉。

問： 如果被告人的而且確冇講過話影咗你相，你敘述個過程，唔應該有講到話被告人有講呢句說說㗎嘛，係咪呀？

答: （沒有可聽到的回答）

問： 嗰個英文嗰個寫法呢，你就咁寫嘅，你話 ‘He said that they had taken my photograph and told me not to enter Yee Kuk Street ever again.’ 記得，係咪呀？

答： 睇吓先…

問： 你記唔記得咁樣寫咗係度先，首先？需唔需要睇番？

答： 有印象。

問： 有印象?

答： 有印象。

問： 咁呢句說話，你頭先講得好清楚喇，根本就冇發生過嘅，即係被告人冇講過呢句話「影咗相」呢句說話嘅，點解會喺你一份誓章宣誓底下加插咗出嚟，點解呀，吳先生？

答： 解釋唔到。” (underline added)

31.  Second, I turn to the affirmation of Leung.  He wrote:

“4. On 31^st August 2018 at around 4:00pm, while we were working at the site, I saw a man in baseball cap outside the premises taking pictures of us with his hand-held phone. He was also signalling me to come out. I went up to him and asked what the matter was, as I thought there might be a complaint about our work. The man told us that we must stop the machines, get changed and leave the site immediately, as there was some legal action about the place. I reported the request to my superior, Mr. Tse Kwai (“Mr. Tse”) and Mr. Tse came over to speak with the man in baseball cap. The man in baseball cap repeated his request to Mr. Tse. Mr. Tse did not want to leave and told him that we could not leave without the permission of our company. The man in baseball cap became a little more agitated and told us that he had more people coming to the site and if we answered back, there would be trouble and danger for us, and he could not guarantee what would happen to us. Mr. Tse then called Mr. Ng [ie Kelvin Ng] and informed him of the situation.

5.     Mr Ng arrived soon after the call.  The man in baseball cap told Mr. Ng in our presence that they had already posted a notice at the site before and asked who permitted us to come to the Building Site.  He said that we must stop the work, remove the machinery and leave at once.  He told us that there was some kind of ongoing legal action.  He said that there were more of his people coming to the site.  He told us to shut down the Building Site (拉閘).  Mr. Ng told the man in baseball cap that he had to report to his superior and get permission to leave.

6.     As the man in baseball cap has threatened more of his people were coming, we had concerns for our safety. Mr. Ng instructed us to leave the Building Site.  We then stopped the work and pulled down the roller shutter at Lot 203A and prepared to leave.

7.     Before we left, a man came out of a motor car and told us we must leave at once.  He said that we had better believe that he could call in 100 people to the site and throw out the pipes and drills (machine parts) and destroy our machinery.

8.     We then locked the roller shutters at Lots 201 and 203A and left the Building Site together at around 4:30pm, leaving Mr. Ng to deal with the situation.” (underline added)

32.  Mr Pun submitted that in the Criminal Trial, Leung admitted that in fact he did not hear any intimidatory remarks. 

33.  Mr Pun relied on the following evidence:

“問: 唔。咁即係或者再清晰啲講，你冇聽到任何人向吳尚達[ie Kelvin Ng] 講任何恐嚇性概說嘅說話喇，啱唔啱?

答: 啱。

問: 為咗呢件事呢，除咗喺差館落口供之外，亦都要有上去律師樓嗰度宣誓簽名份誓章，記唔記得呀？

答： 記得。

…

問： 係。嗰份誓章我想問淸楚，係你一路講，個律師一路用電腦打出嚟吖，定抑或你上到去律師樓嘅時候，佢已經做好咗㗎喇，呢份誓章？

答： 我都唔知喎，我坐喺度，佢叫我簽咪簽囉，佢講完嘅嘢，我咪簽囉。

…

問：你頭先都好清楚喇，就講咗話冇任何人講--講過一啲恐嚇性嘅說話喇？

答： 係。

問： 係咪？亦都恐嚇性說話，我相信包括就係話「哦，我會搵成一百個人落嚟」，冇--冇聽到有人講呢嗰説話喇，啱唔啱？

答： 聽到都唔出奇吖，嗰條街日日都有人咁講嘢㗎喇。

問： 哦，唔好講日日喇，即係當日你冇聽到喇，如果因應番你頭先我哋一路問咗你咁耐嘅證供，⋯

答： 係呀。

問： …係咪，冇吖嘛？

答： 冇。

問： 即係你話「哦，嗰條街成日都咁亂，之前有人講唔好出奇」咁，咁就一件事喇…

答： 係咪囉，我由細聽到大㗎喇。

問： 哦，由細聽到大，okay。亦都冇聽到有人話要掉咗啲通，掉咗啲鑽桿咁樣，冇喇，係咪呀?係咪呀？

答： 冇。

問： 冇嘅，唔。咁點解你嗰份誓章嗰度會有咁寫嘅？就係話「有個男子就我我哋走之前，佢就話呢你哋最好就相信佢可以叫到一百個人落嚟地盤，抌哂啲桿同埋抌晒」--等我睇番個中文點譯先吓，「抌晒啲通同埋抌哂啲鑽桿」，點解你咁樣喺個誓章咁講嘅？

答： 我都話咯，我係日日都聽唔知邊個講，日日都聽到呢啲說話㗎喇，我哋一趕貨唔切，人哋又叫我乜嘢㗎喇。

問： 即係嗰--嗰個誓章裡面話嗰個人有咁講，其實就唔係好正確個囉喎，即係只係你平時聽到有人咁講？

答： 我都冇望住嗰個人，我都唔知邊個講，淨係聽到佢咁講，我唔知邊個講。

問： 而但係你剛剛嘅講法，你係8月31號就冇人--你冇聽到有人咁講吖嘛，啱唔啱？

答： 係呀，係呀。

問： 係。即係你頭先話「咩嘢邊個講，唔知邊個講」嗰啲係講緊其他嘅日子啫？

答： 係呀，冇錯。” (underline added)

34.  The next (and third) relevant deponent is Ko. He stated the following in his affirmation:

“The Affirmation of LEUNG YAU SING was read, interpreted and explained to me.  I was one of the co-workers of Leung Yau Sing (“Mr Leung”) working at the Building Site as mentioned by Mr. Leung and was present during the incident in the afternoon of 31^st August 2018 referred to by Mr. Leung in his affirmation.  I confirm the contents in Mr. Leung’s affirmation as true and correct to the best of my knowledge, information and belief.” (underline added)

35.  Mr Pun submitted that in the Criminal Trial, Ko admitted that Leung’s affirmation in fact had not been explained to him and he did not know what was written there.  Mr Pun relied on the following evidence:

“問：啱。嗰度就有引述梁友成嘅誓章嘅，你記唔記得你簽嘅時候，律師解畀你聽有講呢一樣嘢？

答： 佢應該有啩，我都唔知呀，唔記得，咁耐邊記得呢啲嘢呀。

問： 佢嗰個律師有冇解釋埋梁友成嗰份誓章畀你聽吖？

答 : 冇。

問： 冇㗎？咁但係點解你份誓章上面寫話梁友成嗰份誓章已經係翻譯、解釋同埋讀過畀我聽，我確認個內容係真確嘅？

答： 讀過都唔記得喇，我點知佢有冇梁友成呀，咁耐。

問： 唔係，有就有，冇就冇；…

答： 我唔知呀。

問： …唔記得就唔記得。

答： 唔記得呀。

問： 你唔記得。但係因為你頭先好肯定講話個律師冇讀過梁友成嗰份誓章畀你聽個喎？

答： 梁友成還梁友成，我還我，係咪呀？

問： 係呀，梗係啦，但係佢話有讀過畀你聽吖嘛，咁我想搞清楚有冇讀過畀你聽？

答： 冇喎。

問： 冇嘅。咁樣梁友成嗰份誓章入面寫咗啲乜，你唔知嘅?

答： 唔知呀。” (underline added)

36.  Fourth, the next and last relevant deponent is Tse.  In his affirmation, he said:

“On 31^st August 2018, we were carrying out the field work at the Building Site.  Shortly after 4:00pm on that day, I was operating the machine and one of co-workers, Leung Yau Sing, came to me and told me that a man had come and told them to stop and leave.  I then went up and found a man in baseball cap.  He repeatedly requested me to get my workers to stop the work and leave the Building Site immediately.  I told him that we could not leave without the permission of our company.  He then became less friendly and told me that more of his people were on their way to the site.  He said that when they have arrived and I were to answer back, there would be trouble and there would be danger to our personal safety.  I felt his threat and immediately reported this to our director Mr. Ng Sheung Tat Kelvin (“Mr. Ng”).  Mr. Ng soon arrived to speak to the man in baseball cap.  What happened afterwards has been averred to in paragraphs 5 to 8 of the Affirmation of LEUNG YAU SING a copy of which has been read, interpreted and explained to me by the 1^st Plaintiff’s solicitors.  I confirm its content as true and correct to the best of my knowledge, information and belief.” (underline added)

37.  Mr Pun submitted that in the Criminal Trial, Tse admitted that he in fact did not hear any intimidatory remarks made by the 2^nd defendant or the man in baseball cap.  Mr Pun relied on the following evidence:

“問: 即係羅生[ie the 2^nd defendant]同嗰個管工講乜, 你都冇聽到，啱唔啱?

答: 係。

問: 唔。佢哋講嘢嗰個--但係你見到佢哋有講嘢嘅，係咪呀?

答: 有講嘢。

問: 見到佢哋有講嘢嘅?

答: 係呀，有講嘢。

問: 係。語氣都係平靜嘅，啱唔啱? 我見你岋頭，又係你要講出聲。

答: 係，啱。

問: 啱？

答: 係，係。

問: 唔，係。 或者咁講喇， 你冇聽到羅生向呢個管工講任何恐嚇嘅說話，啱定唔啱，你自己本人冇聽到？

答: 冇聽到。

問: 冇聽到，係咪？

答: 冇聽到佢哋。

…

問: 係，梁友成有一份誓章，你喺你份誓章入面呢，就話有關其中一個事件喇，即係話有啲--有人講啲恐嚇嘅說講喇，你就話「呢個事件呢，喺梁友成嘅誓章嘅第5至第8段已經寫咗出嚟喇，亦都係翻譯咗解釋咗畀我聽嘅，我確認嗰個內容係正確同埋真實嘅」，記唔記得有咁講過？

答: 係呀，可能係。

問: 係，係呀嘛，係咪？

答: 係。

問: 正正梁友成嗰份誓章內容就講到，就係話嗰個第二名男子，即係應該相信係嗰個你 -- 你頭先講嗰個羅生喇吓，就話要--會搵 -- 大致上喇吓，話會搵一百個人落嚟，抌晒啲通同埋啲鑽…

答: 同--同機一嚿一嚿拆咗，抌出馬路。

問: 乜嘢？唔係，我嘅意思係梁友成嗰份誓章有咁講吖，但係你本身聽唔到㗎嘛，係咪呀？

答: 我 -- 佢喺嗰度講，冇留意去聽。

問: 係囉，…

答: 係。

問: … 咁點解你會可以確認梁友成嗰份誓章關於呢部分嘅內容呀？你都冇聽到。

答: 我聽到，後來佢講出嚟嘛。

問: 邊個講出嚟呀? 梁友成喺個誓章講出嚟吖嘛，係咪呀？

答: 喺食飯嗰時會一齊講嘢嘛。

…

問: 係。即係其實就係你冇親耳聽到，不過喺食飯嘅時候，梁友成有一齊講過，咁你就當咗你自己聽到咁樣引述番出嚟?

答: 係喇，係喇。

問: 係，你個誓章呢，你自己嗰份呢，甚至乎你講到戴鴨嘴帽嗰個男人就話呢 -- 話「如果你再嘈嘅話呢，你就會有麻煩，會對你嘅個人安全呢有危險」，你喺你份誓章咁講添喎，係咪呀？

答: 係呀。

問: 係。 但係事實嗰個戴鴨嘴帽嗰個男人都冇同你講過嘢，點解你會咁樣講㗎喺誓章，又係其他人話畀你聽㗎?

答: 佢講出嚟吖嘛，係囉。

問: 邊個「佢」出嚟呀？

答: 阿--阿成嘛。

問: 阿成講出嚟？

答: 係呀。

問: 即係戴鴨嘴帽嗰個男人冇咁講過呀嘛，冇同你，係咪？

答: 係。

…

問: 總括嚟講，你喺現場冇聽到有任何人講一啲恐嚇性嘅說話，啱唔啱?

答: 啱，係。” (underline added)

Legal principles

38.  A party who seeks an injunction ex parte is under a duty to make full and frank disclosure of all the material facts.  If there has been a breach of that duty, the general rule is that the court should discharge the order obtained in breach and refuse to renew the order until trial. Notwithstanding the general rule, the court has jurisdiction to continue or re-grant the order.  That jurisdiction should be exercised sparingly and should take account of the need to protect the administration of justice and uphold the public interest in requiring full and frank disclosure.  The court should assess the degree and extent of the culpability with regard to non-disclosure. The court should also assess the importance and significance to the outcome of the application for an injunction of the matters which were not disclosed to the court.  In making this assessment, the fact that the judge might have made the order anyway is of little if any importance.  The court can weigh the merits of the plaintiff’s claim.  It is however not a simple balancing exercise in which the strength of the plaintiff’s case is allowed to undermine the policy objective of the principle.

39.  It is always important to bear in mind the rationale underlying the above approach.  The general rule has a two-fold purpose.  It deprives the wrongdoer of an advantage improperly obtained.  It also serves as a deterrent to ensure that parties who make ex parte applications realise that they have the duty of disclosure and of the consequences if they fail in that duty.  On the other hand, the rule cannot be allowed itself to become an instrument of injustice.  That is why the court must have a discretion to continue the injunction or to grant a fresh injunction in its place, notwithstanding that there was non-disclosure when the ex parte application was made.  When considering what consequence should follow or attach to the breach of the duty, the court should have regard to the proportionality between the wrongdoing (ie the non-disclosure) and the consequence.  The overriding question is what is in the interests of justice in the particular circumstances of the case. 

40.  For authorities in support of the above well-established principles, see, eg, Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350 at 1356F-1358E; Excel Courage Holdings Ltd v Wong Sin Lai [2014] 3 HKLRD 642 at paras 56 to 58.

41.  An undertaking given by a defendant in lieu of an injunction can be released on grounds of material non-disclosure by the plaintiff: Hong Kong Civil Procedure 2021 at 29/1/36.

42.  Here, the defendants submit that what the 1^st plaintiff had committed when applying for the Injunction was not material non-disclosure, it was something worse.  It was the use of false and/or inaccurate statements.  That said, I understand that Mr Pun accepted that the principles governing material non-disclosure applies generally to the present case.   

Discussion

43.  In the present application, I consider that my task is, first, to determine whether the defendants have successfully made out the falsity ground.  I should scrutinise the oral evidence given by the four deponents in the Criminal Trial and decide whether when viewed against such evidence, the deponents’ affirmations contained the false or inaccurate statements as alleged by the defendants.

44.  Secondly, if the answer is yes, I should consider the extent of the false or inaccurate statements and how material they are in the context of the Injunction.

45.  Thirdly, in light of the materiality as determined, I should consider what the court should do about the situation and what consequence should follow. Should the court release the defendants from the Undertakings by reason of those false or inaccurate statements?  Or should the court exercise its discretion to allow the Undertakings to remain in effect, notwithstanding the false or inaccurate statements?

46.  I should at the outset deal with two primary arguments advanced by Ms Priscilla Wong, counsel for the plaintiffs, in her written submissions on the falsity ground. 

47.  First, Ms Wong invited the court to look at the ruling of the magistrate in the Criminal Trial.  It is, she submitted, pertinent to note that the magistrate ruled that there was a case to answer on the two charges of criminal intimidation but the 2^nd defendant was acquitted because the crime was not proved beyond all reasonable doubt.

48.  The magistrate noted that there were differences between the oral evidence of the prosecution witnesses and the content of their affirmations. However, he could not confirm which evidence was correct.  The benefit of such doubt must be given to the 2^nd defendant.

49.  Ms Wong emphasised that it was not the case that the magistrate ruled that the oral evidence was true and the affirmation evidence was false or inaccurate.  On the contrary, he expressly noted that he could not confirm which was correct and which was not.  Hence, Ms Wong submitted that the defendants cannot now rely on the Criminal Trial to show that the affirmations contained false or inaccurate statements.

50.  In my view, the submission does not assist the plaintiffs’ case.  This is because the basis of the defendants’ application is not the ruling or the outcome of the Criminal Trial.

51.  It is not the defendants’ contention that the affirmation evidence was false or inaccurate because the 2^nd defendant was found not guilty of criminal intimidation.  The basis of the defendants’ application is a much simpler and narrower one.  The defendants say that each of the deponents in fact admitted under oath in the Criminal Trial that what they had earlier said in their respective affirmations was false or inaccurate.  Put in another way, the defendants say that the deponents retracted or altered what they had said in their affirmations.

52.  Given the basis of the application, in determining whether the falsity ground is made out, my task is to look at the oral evidence given in the Criminal Trial, rather than looking at the magistrate’s ruling.  The latter is simply not relied on by the defendants.

53.  I should also add that for present purposes, my task is not to determine the credibility of the statements made in the affirmation evidence.  That is something to be determined at trial, after the deponents (if called) give oral evidence.

54.  Secondly, Ms Wong placed considerable reliance on the approach in Dormeuil Freres SA v Nicolian International (Textiles) Ltd [1988] 1 WLR 1362, and the Hong Kong authorities which adopt this approach: Pandora v Glamulet International Ltd HCA 2941/2015, 26 July 2016 at paras 15 to 24; and Top Gains Minerals Macao Commercial Offshore Ltd v TL Resources Pte Ltd HCMP 1622/2015, 18 November 2015 at paras 59 to 61. She submitted that it is not appropriate for me to determine whether the affirmation contained false or inaccurate statements at this interlocutory stage.  The issue cannot be resolved now in the absence of cross-examination and ought to be adjourned to trial.  I do not agree.

55.  I would say that in this case, the determination of the falsity ground is capable of being determined on the basis of the affirmation evidence and the transcript of the Criminal Trial.  There is therefore no need to adjourn the application to the trial for a proper disposal.

False or inaccurate statements in the affirmations?

56.  I now turn to the affirmation evidence of the four deponents.

57.  I accept Mr Pun’s submission in relation to the evidence of Leung, Ko and Tse – see paras 32, 35 and 37 above.  (I would have more to say about Ko’s evidence shortly.)  By looking at the relevant parts of the transcript of the Criminal Trial alongside with the corresponding paragraphs in the affirmation evidence, it is fair to say that both Leung and Tse had retracted some of their affirmation evidence – identified by the underlined passages in the above extracts – as they expressly confirmed that those parts were not correct. 

58.  As mentioned above, I am not here concerned with the credibility of the allegations made in the affirmations.  Instead, for this part of the analysis, I am undertaking a rather “mechanical” exercise of determining whether the deponents had themselves admitted in the Criminal Trial that what they had previously said was false or inaccurate.

59.  There may well be reasons why the deponents would make the admissions or retractions in the Criminal Trial.  But to date the plaintiffs have not adduced any evidence at all to explain why those admissions or retractions should not simply be taken at face value.  In opposing the present application, the plaintiffs have filed two short affirmations made by their handling solicitor. The plaintiffs have not filed any affirmation made by any of the four deponents.  On the falsity ground, what we have is only the following passage from the handling solicitor:

“As for the Defendants’ bold but groundless assertions that the Plaintiffs “adduced false and/or inaccurate evidence in supporting Affirmations” at their ex parte application, this is simply not the case, not made out, not substantiated, and in any case should not justify a release of the Defendants from their undertakings given on the return day in place of interlocutory injunctions.  On behalf of the Plaintiffs, I formally refute such allegations.  For the avoidance of doubt, the Plaintiffs have confirmed with the affirmants Mr. Ng Sheung Tak Kelvin, Mr. Leung Yau Sing, Mr. Ko Kwok Wai and Mr. Ho Chun Kau again that their Affirmations filed herein were not false or misleading.  I have myself confirmed with Mr. Ng Sheung Tak Kelvin on 12 November 2020 that the contents of the Affirmation he made herein were not false or misleading.”

60.  What we have is an indirect, negative and bare confirmation from the four deponents that the contents of their affirmations were not false or misleading without any explanation as to the apparent differences between the affirmation evidence and the oral evidence.

61.  In the circumstances, in respect of Leung, Ko and Tse, their oral evidence is to be taken at face value and I find that their affirmations contained false or inaccurate statements as submitted by the defendants.

62.  As regards Kelvin Ng, the position is not as straightforward or clear-cut as Mr Pun sought to portray in his submissions.

63.  If one looks at the extracts of the transcript relied on by the defendants closely, one can readily see that the falsity or inaccuracy only goes to the following two points:

(a)     He stated in his affirmation that the 2^nd defendant warned the workers that his people would throw out pipes (通) and drill poles (鑽杆).  However, according to his oral evidence, the 2^nd defendant in fact did not say anything about pipes and drill poles at the scene.

(b)     He stated that the 2^nd defendant said that his people had taken his (ie Kelvin Ng’s) photograph.  However, according to his oral evidence, the 2^nd defendant did not say anything about photograph at the scene.

64.  Hence, strictly speaking, even looking solely at the defendants’ extracts of the transcript, Kelvin Ng did not retract the rest of what he said about the incident in the affirmation.

65.  It is important to bear in mind the key allegations made by Kelvin Ng in his affirmation.  I have reproduced them in para 29 above.  That forms the crux of his complaint against the 2^nd defendant.

66.  Having gone through the whole transcript of the Criminal Trial, it is quite plain and clear that save for the two matters concerning drills and poles and photograph, in the Criminal Trial, Kelvin Ng stood by the main crux of his complaint against the 2^nd defendant as set out in his affirmation.

67.  I would quote below examples of such evidence given by Kelvin Ng in his examination-in-chief, cross-examination and re-examination.

68.  In examination-in-chief:

“答: … 就突然之間就有--有個人揸住架車，架Benz嚟嘅，咁就--就係駛到過嚟，停咗喺馬路邊嗰一邊嘅，即係啱啱201個對出馬路嗰度，咁佢就落車就喺度同鴨嘴帽嗰個喺度講話「邊個叫佢哋喺度開工?邊個准佢地喺度開工㗎?」咁樣，咁跟住就走咗過嚟，同我哋嗰一邊我哋講，就係話「邊個准你哋喺度開工?你哋而家即刻搬晒啲嘢走，如果唔係呢，我等陣間會call成百人過嚟就拆爛你啲機呀，掟晒你啲架撐就出去街出面」，咁…

…

官: 叫你即刻搬啲機走?

答: 機器，係喇，同埋啲工具，係喇。

官: 如果唔係，成班人…?

答: 成百人…

官： 成百人？

答： 係。

官： 係，成百人。

答： 就嚟幫你拆爛晒啲機，搬晒你啲架撐掉晒出去咁樣囉。” (underline added)

69.  In cross-examination:

“問: 啱，係咪呀?佢係冇向你講過任何恐嚇嘅說話吖嘛，啱唔啱?

答: 唔--佢有叫我哋搬晒啲機走囉，立刻搬晒啲機走囉，佢話。

問: 唔，係。我向你指出，佢冇咁樣講嘅。同唔同意?

答: 唔同意，佢--佢就係叫我哋搬晒啲機走。” (underline added)

“問: 係喇，係。我向你指出呢，個原因點解你冇再要求警員進一步跟進，因為根本被告人冇同你講過話叫你即刻搬啲機器、工具走，唔係就成百人嚟幫你拆攔晒啲機同掉晒啲嘢出去，冇咁講過。同唔同意?

答:     唔同意。”

“問: 咁即係喺個誓章你宣誓底下，都係話被告人曾經講過話會拆你啲機器同埋抌你啲通，同埋抌你啲鑽桿，係唔係?

答: 係。

問: 而事實上，被告人喺現場係冇咁講過嘅，係咪?你剛剛確認咗喇。

答: Sorry，我好混淆呀，可能，係。

問: 其實就好簡單啫，被告人冇咁講，但係你喺誓章嗰度就講咗一啲指稱話被告人有講嘅說話，事實上佢冇咁講嘅。同唔同意?

答: 唔係，事實上，佢係有--有講話要拆爛晒啲機，掉晒出去咁。” (underline added)

“問: 係。咁但係個問題，就係我始終唔明點解被告人冇講話掉你啲通同鑽桿，你就兩次喇，起碼，而家文件上睇到兩次，喺差人嘅口供--喺警署落嘅口供，同埋喺誓章都有咁講，而呢啲係被告人冇講過嘅?

答:     咁你--冇呀，因為佢叫我搬走晒啲嘢，如果我唔搬就掉晒我啲嘢，咁我啲嘢入面係當中係一定會有通同鑽桿嗰啲…”

“問: 唔。根據你今朝主問嗰個講法呢，你就話被告人話「四眼仔，你報警呀?信唔信你落嚟醫局街，我見一鑊，打一鑊吖」咁樣恐嚇你吖嘛，係咪呀?

答: 係。

問: 係。咁即係佢係冇講過--冇好清楚講話你唔可以去醫局街嘅，不過呢佢就話「你唔好畀我喺醫局街見到你啫，見一鑊，打一鑊」，啱唔啱?

答: 係。

問: 但係--就係咁多喇，係咪呀?據你所講恐嚇嘅說話，…

答: 係。

問: …即係呢--呢部份。

答: 係。

問: 係咁多喇?我見你岋頭。佢冇話「四眼仔，我影咗你相喇，我認得你個樣」，冇咁講嘛，啱唔啱?

答: 唔記得。” (underline added)

“問：我向你指出喇，被告人根本就冇講過話有影過你相，呢個你同意喇，啱唔啱？

答： 唔。

問： 唔。被告人亦都冇講過，就係話「信唔信你嚟醫局街，我見一鑊，打一鑊」，佢亦都冇咁講過。同唔同意？

答： 唔同意。” (underline added)

70.  In re-examination:

“答: …咁跟住就有個人楂住架銀色Benz就過咗嚟，停咗喺201嗰個對出個馬路嗰度。咁跟住佢一落車就兜咗入嚟，跟住就問戴鴨嘴帽嗰個先嘅，咁就問--問即係--即係「邊個叫佢哋開工，邊個准佢哋喺度開工」咁樣，咁跟住對住我吔講話「喂，你哋呀快啲走，你如果唔走嘅呢，啲機啲--啲--即係嗰啲機呀嗰啲嘢呢唔走呢，就我就call成百人落嚟幫你哋拆爛晒佢，掉晒佢出去」，咁跟住我咪叫高國偉「喂，快快脆脆走喇」咁樣囉，咁--係囉，個過程就係咁樣。” (underline added)

71.  To sum up, Kelvin Ng’s affirmation contained false or inaccurate statements only to the extent identified by the defendants, ie in relation to the wrong references to (a) drills and poles, and (b) photograph.  In the Criminal Trial, he basically stood by his evidence deposed to in the affirmation.

72.  Lastly, as observed above, Ko’s affirmation evidence was inaccurate.  On the one hand, he confirmed that the content of Leung’s affirmation was correct and true.  On the other hand, in his subsequent oral evidence, he said that he did not know the content at all. Notwithstanding that, in other parts of his evidence, Ko gave evidence which corroborated Kelvin Ng’s affirmation evidence.  See, eg:

“問: 不如咁喇，喺呢個階段，你講晒你聽到呢個男子講嘅嘢先，你聽…

答: 係，佢--佢嗌我哋收工，如果你唔收工，佢話就搵人嚟搬啲通呀同埋呢部機出街，就係咁樣，就係咁講。

問: 唔。搬--你頭先所講呀，佢有講過話「搬啲通同埋桿出街」，即係咩嘢呀?「啲通同啲桿」，可唔可以解釋下係咩嘢嚟㗎？

答： 鑽桿同埋嗰啲機，我哋嗰啲機械嗰啲--做嘢嗰啲機械嗰啲嘢，就係咁講嘅。

問: 你哋啲機器?

答: 係呀。

問: 呢啲機器係屬於邊個㗎？

答： 呢啲機器係屬於我公司嘅。

問: 到咗呢個位呢，我諗要請你細心咁諗清楚喇，佢實際上係講咗呢幾個字嘅，即係話「啲通同埋個鑽桿」你頭先講過嘅，佢係咪實際上有講呢幾個字?

答: 有。

問: 你係聽到佢咁講嘅?

答: 係呀。” (underline added)

“問：咁佢講嗰啲說話，話叫你哋收工，搬啲通同埋鑽桿出街，佢講咗幾多次呢啲咁嘅說話？

答： 係講一次。

問: 一次?

答: 一次。

問: 唔。咁有冇其他人同呢個男子對話呢?

答: 講嘢嗰陣時冇。

問: 即係你意思嗰個男子講嘢嗰陣，冇人同佢對話?

答: 係。

問: 咁之後呢?

答: 之後我哋咪換衫收工囉，之後嗰啲嘢我就唔清楚喇。

…

問: 咁你聽到嗰個男子話叫你哋收工，搬啲通同埋鑽桿出街嗰陣，你同佢個距離可唔可以講到大約有幾多喥呢?用米或者呎都得。

答: 大約米半至兩米喥喇，喺度講呀。

問: 唔。咁你聽到佢講呢句說話，你有咩嘢感受?

答: 咪驚驚地囉，咪趕住收工囉。

問: 點解驚驚地呀?

答: 我都唔知佢咩嘢人，佢話要收工，我唔驚呀?” (underline added)

“問: 係喇，係。你主問講就--就咁話「桿」啫,當然，呢個少少分別喇吓，即係嗰個書面口供就寫住「鑽桿」，咁到底…

答: 係呀，鑽桿，啱吖。

問: …佢係當時嗰個男子講係話「鑽桿」吖，定抑或就咁講話「桿」呀?

答:     好似係講「桿同埋啲通」。”

73.  In summary, I find that in light of the oral evidence given at the Criminal Trial, the affirmations of the four deponents contained false or inaccurate statements to the extent identified by Mr Pun. At the same time, however, I note that Kelvin Ng in the Criminal Trial maintained the crux of his complaint against the 2^nd defendant as set out in his affirmation.  Furthermore, part of Ko’s evidence in the Criminal Trial supported Kelvin Ng’s affirmation evidence as identified above.

Are the false or inaccurate statements material?

74.  Mr Pun emphasised that the present case is, strictly speaking, not a case of material non-disclosure.  It is a worse situation.  It is a case where a party presented false or inaccurate evidence to the court in the course of obtaining an ex parte injunction.

75.  I think there is force in that submission. 

76.  In the present case, the court should consider whether the false or inaccurate statements relate to material information in the context of the obtaining of the Injunction.

77.  In my view, the answer is yes.

78.  The factual case portrayed by the 1^st plaintiff before the ex parte judge was built on the strength of the affirmations of six deponents, including the four affirmations which now turn out to contain false or inaccurate statements to varying extent.  The 1^st plaintiff was putting forward a case of intimidation at the ex parte hearing.  The fact that the 1^st plaintiff was able to present evidence from six individuals in support of the intimidation incident must have had a bearing on the judge’s evaluation of the merits of the application.

79.  In the case of Leung and Tse, they recounted in their affirmations the intimidatory remarks (in Tse’s case, indirectly by reference to Leung’s affirmation).  But they retracted the evidence in the Criminal Trial.  So they were deposing to matters which, according to their knowledge, did not in fact happen.  The false or inaccurate statements are material not only because such evidence would affect how the judge would rule on the injunction application, but also because the presentation to the court of such falsity or inaccuracy is fundamentally wrong in nature.

80.  On the other hand, I consider that the evidence of Kelvin Ng excluding the inaccuracy relating to the drills and poles and the photograph, together with the evidence of Ko excluding the reference to Leung’s affirmation, would make out a serious case of intimidation which should be tried.  Hence the Injunction could still be properly granted if the false or inaccurate statements now identified were omitted.

81.  Nevertheless, that does not detract from the fact that the false or inaccurate statements are material in the context of the Injunction.

What consequence should follow?

82.  I should then consider whether I should immediately proceed to release the defendants from the Undertakings, or whether I should exercise my discretion to allow the Undertakings to remain in place. The overriding consideration is which course of action better serves the interests of justice in the particular circumstances of the present case.

83.  In my view, the proper course to take here is to continue the Undertakings notwithstanding the false or inaccurate statements contained in the 1^st plaintiff’s ex parte affirmation evidence.  The following matters are what I believe to be the relevant and material considerations in the exercise of my discretion.

84.  First, I have found that the false or inaccurate statements are material in the context of the Injunction.  The court takes a very serious view of the use of such statements, particularly in the context of an ex parte application when the other party is not present to defend itself before an order adverse to its interest is made against it.  The starting position is that the defendants ought to be immediately released from the Undertakings.  This would serve as a stark reminder to the plaintiffs that consequences would follow from such wrongful act and their substantive rights (in the nature of interim relief) would be taken away.

85.  Secondly, up to now, there is no or no concrete explanation given by the plaintiffs why the false or inaccurate statements were made and included in the evidence and relied upon in the ex parte application.

86.  In the present application, the plaintiffs have filed two affirmations in opposition, both made by their solicitor.  None of Kelvin Ng, Leung, Ko or Tse have made any affirmation personally explaining the apparent difference between their previous affirmation evidence and their oral evidence given in the Criminal Trial.  The plaintiffs’ solicitor stated on affirmation that the four deponents confirmed with the plaintiffs that their affirmations “were not false or misleading”. 

87.  The fact that no attempt has to date been made to properly explain the discrepancy would weigh against the continuation of the Undertakings. 

88.  Thirdly, on the other hand, my view is that based on the affirmation evidence used in the ex parte application, with the false or inaccurate statements removed, the Injunction could still have been properly granted.  The crux of the complaint of intimidation was contained in Kelvin Ng’s affirmation.  The mistaken references to “drills” and “poles” and the taking of photograph are minor inaccuracies.  They do not diminish or affect the core substance of the intimidation incident as recounted by Kelvin Ng.  The complaint has been set out clearly and succinctly in his affirmation – see para 29 above. 

89.  Objectively speaking, on the strength of the “correct” affirmation evidence, the application for the Injunction has substantive merits.  In this regard, it would be recalled that after the Injunction was granted, the defendants did not seek to file any substantive opposing affirmation disputing the alleged incident but instead consented to give the Undertakings. Furthermore, in the same vein, as highlighted by Ms Wong, at the Criminal Trial, the magistrate ruled that there was a case to answer on the basis of the evidence before him.

90.  The Injunction and the Undertakings are negative in nature.  They prohibit the defendants from doing things which have the effect of intimidating, harassing or interfering with the 1^st plaintiff. 

91.  On the whole, this is a case which warrants the grant of the Injunction.  As an interim measure pending trial, it is just and fair that the defendants should be subject to the restraints imposed by the Undertakings. 

92.  Hence, there is much to be said for the continuation of the protection afforded by the Undertakings pending trial. 

93.  The balancing exercise therefore boils down to this.

94.  On the one hand, if the court allows the Undertakings to remain in place, it may be seen to be condoning the use of false or inaccurate evidence by the plaintiffs with the result that they can get away with it with no consequence.  On the other hand, if the court releases the Undertakings, the 1^st plaintiff would be deprived of the interim protection given by the Undertakings, which is plainly warranted on the evidence before me. 

95.  I am of the view that to release the defendants from the Undertakings and to deprive the 1^st plaintiff of their benefit would amount to a larger injustice in the overall circumstances of the case than if the other course is taken.  It would be a disproportionate response to the plaintiffs’ wrongdoing. 

96.  The balance comes down in favour of maintaining the Undertakings pending trial.

Order

97.  For the above reasons, notwithstanding the false or inaccurate statements contained in the affirmation evidence filed in support of the Injunction, I would exercise my discretion such that the Undertakings should remain in place in their original terms. 

98.  I therefore dismiss the 1^st and 2^nd defendants’ summons.

99.  I make a costs order nisi that the costs of the summons be in the cause of the action.  The plaintiffs have successfully resisted the summons.  But the defendants have succeeded in making out the falsify ground.  In the end, the court exercises its discretion in favour of the plaintiffs.  It is not a case in which they should have their costs straightaway.