XCHRX HKCT TRADING LTD. v. LI LUEN PING

HCA 18823/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 18823 OF 1999

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REASONS FOR DECISION

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1. The Plaintiff claims against the Defendant for the return of an alleged loan of $2 million.

2. The Defendant denies the claim. He admits that a cheque for $2 million drawn by the Plaintiff in his favour was given to him, but such amount was agreed by the parties to be part of the investment by the Plaintiff in a company called Townlink Ltd.

3. The Defendant contends that after the cheque was delivered to him, he had requested for a replacement cheque to be issued in the name of Townlink Ltd. The Plaintiff however requested the Defendant to pay the cheque into his own account and then arrange for the transfer of the fund to Mr Li Sun Ming of Townlink Ltd which he did. In the circumstances, the Defendant denies liability for the said cheque.

4. The case is about to be set down for trial and by this application, the Defendant seeks an order pursuant to Order 38 rule 3(1) of the Rules of the High Court for an order that he be allowed to give his evidence at the trial of this action by way of a video or television link.

5. The background of the case suggests that the Defendant had immigrated and settled in Hong Kong. But since August 2000, the Defendant has not returned to Hong Kong and he makes his home in Laos and China.

6. The Defendant chooses not to return to Hong Kong because he is being wanted by the Independent Commission Against Corruption in connection with an ongoing investigation into certain alleged irregularities concerning Letters of Credit opened by Highdone Company Ltd for Guangnam (Holding) Ltd. The Defendant believes that if he returns to Hong Kong he may be detained for questioning by the ICAC. The Defendant says he does not wish to subject himself to such detention and questioning by the ICAC.

7. It is the Defendant's contention that his wish to avoid investigation by the ICAC should not prejudice his right to defend himself properly. As the rules of the Court clearly give the Court the discretion to order evidence to be given in such manner as may be appropriate and in the absence of any prejudice to the Plaintiff, it is fair to the Court to make the order as sought.

8. The discretion of this Court under Order 38 must of course exercise judicially. On the Defendant's own case, there are two significant factors:

(1) He is not a foreign witness but an ordinary resident in Hong Kong;

(2) He had deliberately put himself outside Hong Kong to avoid investigation by a law enforcement agency in connection with suspected criminal acts.

9. I do not agree with Ms June Wee's observation that the issue is simply one of doing justice between the parties to the action. In my view, the case concerns a widen issue of public interest or public policy. The Court should not make any order which would have the effect of encouraging or condoning any attempt to avoid or hinder investigation by a law enforcement agency.

10. In A.G. v. Lui Lok [1982] HKLR 413, the Court of Appeal refused to allow the Defendant to have his own evidence taken before a special examiner in Taiwan where the Defendant lived in order to avoid criminal proceedings.

11. The Court of Appeal took the view that an order under Order 39 Rule 1 should not be made in favour of a person who could rightly be said to be ordinarily resident here, yet by his own choice and action had deliberately put himself outside the jurisdiction.

12. Cons JA at page 417 said:

"I agree with Mr Lee that the defendant is entitled to defend himself with all the means normally available in the Courts. But as I see it, he is asking now for something that is not normal. The established form of trial is for parties who wish to give evidence to be examined viva voce in court before the judge who has to determine the issues. The Defendant is asking us to depart from that norm, and the only reason he puts forward in support is that he is fleeing from the justice administered by the same court to whom he makes his request. For my part that does not appear to me to be something that is 'necessary for the purpose of justice', rather the contrary. Even in civil matters justice is comprised of something more than the mere settlement of disputes between individuals. It is something in which the whole of the community has a general, if usually only residual interest. It would in my view be quite wrong for the courts of this colony to make such an order in favour of a person who could rightly be said to be ordinarily resident here, yet by his own choice and action has deliberately put himself beyond their jurisdiction."

13. With respect, I agree with the reasoning of Cons JA in Lui Lok (supra) the decision of which is in fact binding on me.

14. It is in my view wrong to exercise my discretion by making the order as sought. The Defendant's application must therefore be dismissed.