KINFORM LTD v. TSUI LOI AND OTHERS

DCMP 947/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 947 OF 2011

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BETWEEN

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REASONS FOR SENTENCE

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BACKGROUND

1.  I have found the 1^st and 3^rd defendants guilty of contempt of court.

2.  The basis for the committal had been set out in another judgment delivered earlier today.

3.  In brief, I have found that the 1^st defendant had caused his solicitor to sign a statement of truth to verify the content of an Answer to Request to provide Further and Better Particulars of the Defence (“FBP”) filed in DCCJ 3854/2009 (“the Civil Action”). He himself has also signed a statement of truth to confirm the correctness of the content of his witness statement filed in the same action. Part of the FBP and the said witness statement is now found to be false: it has been proved that a complaint letter which was allegedly sent by him to the plaintiff on 30^th October 2008 (“the Complaint Letter”) could not have existed on that day.

4.  On the other hand, it is my finding that the 3^rd defendant has made a false statement in his witness statement (filed in the same action) verified by a statement of truth in that he said that he received the Complaint Letter on 30^th October 2008.

5.  This is the decision on punishment.

THE LAW

6.  As observed by Chung J. in Chan Wai Tak v Chiu Kwok Kuen (HCMP 899/2010, unreported, 2^nd February 2011), there are quite a few sentencing options available to the sentencer in contempt proceedings. His Lordship cited Morris v Crown Office [1970] 2 QB 114 where it was said that:

“The powers at common law remain intact. It is a power to fine or imprison, to give an immediate sentence or to postpone it, to commit to prison pending his consideration of the sentence, to bind over to be of good behaviour and keep the peace, and to bind over to come up for judgment if called upon….” (at 125)

7.  However, in the present case, I have found that the 1^st and 3^rd defendants have given false statements verified by statements of truth. These statements have or would likely have (as the case may be) interfered with the course of justice. This is no doubt a very serious matter.

8.  Like the commission of the offence of perjury, the giving of a false statement verified by a statement of truth would undermine the whole process of our system of justice and the Court will not tolerate such an act. A clear message has to be sent to all litigants that they must not lie when they put forward their case in the form of pleadings or witness statements.

9.  Given the nature of the acts of the 1^st and 3^rd defendants, I am of the view when I decide on the punishment, I should make references to cases involving perjury.

10.  I have been referred to a number of cases in which the proper sentence in relation to perjury was discussed including R v Lo Fu Keung [1980] HKLR 191, R v Wu Wing Keung Anthony (CACC 202/1988, unreported, 9^th August 1988), R v Lui Kwok Wai [1992] 1 HKCLR 78 and R v Ko Yim Fan (CACC 244/1992, unreported, 9^th June 1993). The general approach of the Court is that an immediate custodial sentence has to be imposed on a person found to have committed the offence of perjury unless there are exceptional circumstances. The starting point of imprisonment adopted in these cases range from 9 months to 2 years, depending on the circumstances of the particular case.

11.  In R v Wu Wing Keung Anthony (see above), Hunter J.A. held that in the case of perjury, the cases may be broadly categorized into 3 categories:

“The first is the man who commits perjury in the course of giving evidence in his own defence. That is the sort of case which the law looks upon somewhat benevolently. Attempts to bring a charge of perjury against such a man are few.

Secondly there is the not unusual circumstance of the family, rallying round to give support to a member who has strayed[…]

The third type of case, is where you have some third party coming in and deliberately giving false evidence in support of a defendant.”

12.  In my view, what have been said in these authorities are applicable in the present case.

13.  However, while this Court may make references to perjury cases when sentencing contemptors who have put forward false statements verified by statements of truth, I consider that I should also take into account any indemnity costs order which may be made against them because any such costs order would also serve as a kind of punishment.

14.  Mr. Lee also referred me to section 20 of the District Court Ordinance. This section provides that:

“If any person –

(a) wilfully insults a judge or a witness or any officer of the Court during his sitting or attendance in court, or in going to or returning from the Court; or

(b) wilfully interrupts the proceedings of the Court or commits contempt of the Court or otherwise misbehaves in court,

any officer of the Court, with or without the assistance of any other person may, by order of the judge, take the offender into custody and detain him until the rising of the Court and the judge may if he thinks fit –

(i) by a warrant under his hand commit the offender to prison for a specified period not exceeding 2 years; or

(ii) impose upon the offender a fine for every such offence.”

15.  Relying on the said section 20, Mr. Lee submitted that the maximum sentence for contempt of court is 2 years. If he is right, then I should take this into account when I consider the starting point because for perjury cases, the maximum sentence is 7 years.

16.  However, I have serious doubt as to whether this section is applicable in the present case.

17.  It is true that section 20(b) mentions about “contempt of the Court”. However, it is apparent that this sub-section is dealing with “contempt in the face of the court” only. This is also supported by the words which followed:

“any officer of the Court…may…take the offender into custody and detain him until the rising of the Court…”

18.  It could not be the intention of section 20 to cover cases involving statements of truth because section 20(i) (which provides a maximum sentence of 2 years) was last amended in 1972 whereas the CJR only came into effect in 2009.

THE SENTENCE

19.  With the above authorities in mind, I will now turn to discuss the proper punishment in respect of the 1^st and 3^rd defendants individually.

1^st defendant

20.  The 1^st defendant is now 49 years old. He has a clear record. His son and daughter are aged 22 and 18 respectively.

21.  He was educated only up to Form 1. According to his witness statement, he had been working in the timber business for more than 20 years. He set up Ho Man Trading Limited in 2003 with his wife.

22.  I have been told that because of the legal costs incurred in these proceedings and the related civil action (DCCJ3854/2009), he will no longer be able to run this business.

23.  He hasnot shown remorse for the contempt until a very late stage. He resisted the contempt proceedings till the end. In this regard, the only good thing that may be said for him is that he abandoned his defence in the Civil Action at the beginning of the trial therein and accepted full liability at last minute instead of relying on his false statement in the Civil Action.

24.  He also offered his apology to this Court through his counsel during mitigation this morning. In normal circumstances, I should not give any weight to apology which is only offered after a finding of guilt has been pronounced. However, given the fact that he has also abandoned his defence in the Civil Action altogether and submitted to judgment before the result of these contempt proceedings is known, I would give him a small discount in his sentence because I take it that he is now genuinely remorseful about his wrongful act.

25.  I also take note of the family support which the 1^st defendant has gained from his children who are in court today. I have also read the mitigation letter written by his son. I will take all these matters into account when I decide on the length of imprisonment.

26.  I agree that the 1^st defendant falls within the 1^st category as described by Hunter J.A. in that he was giving evidence to support his and his company’s defence in the Civil Action. However, this is not the case where he, out of a split second of evil thought, made up something while he was giving evidence in the witness box. The reliance on the Complaint Letter cannot be anything but a pre-meditated move on his part for the sole purpose of bolstering his defence.

27.  Further, it is evident (as certified by his solicitor, Mr. Victor Yeung, to be the case) that he knew when he signed his witness statement that making a false statement would bring serious consequences. He went ahead to give a false statement nonetheless.

28.  Having considered all the relevant circumstances (including the fact that he is liable to pay indemnity costs to the plaintiff in the present proceedings), I would adopt a starting point of 6 months’ imprisonment. In the light of his personal circumstances, I think a small discount of 1 month is warranted. I will therefore sentence him to 5 months’ imprisonment in respect of each of the two proved complaints. The sentences are to run concurrently.

29.  There is nothing in the 1^st defendant’s case which renders it suitable for me to suspend the sentence. Therefore he will have to serve the term of imprisonment immediately.

3^rd defendant

30.  Like the 1^st defendant, the 3^rd defendant is also a person with a clear record and is now 49 years old.

31.  Mr. Wong accepted on his behalf that the cases relating to perjury are applicable in the present case. However, he urged this Court to suspend any sentence to be imposed on the 3^rd defendant.

32.  He stated that by reason of the outcome of the present case, the 3^rd defendant would basically lose everything he had. He also said that this case would also have great impact on the various pending litigations between him and his separated wife.

33.  With respect, I do not agree that any of the matters mentioned by Mr. Wong among to exceptional circumstances which justifies suspension of sentence.

34.  The 3^rd defendant hasnot shown remorse for the contempt. Not only did he resist the application for his contempt to the end, he even gave evidence in support of his alleged innocence which I rejected.

35.  The position of the 3^rd defendant is even worse than the 1^st defendant for one more reason: he was not personally involved as a party in the Civil Action. He has assisted the 1^st defendant in giving false evidence against the plaintiff which is the company he worked for previously. In effect, he was also doing that against his separated wife. He thus falls within the third category of defendants as described by Hunter J.A. This must be an aggravating factor which the Court should take into account when determining the length of imprisonment which he has to face.

36.  On the other hand, I agree with Mr. Wong that the Complaint Letter was probably not created by the 3^rd defendant.

37.  As mentioned above, in determining the starting point, I would also take the indemnity costs order which is made against him into account.

38.  Having considered all relevant matters, I will adopt a starting point of 6 months’ imprisonment. I do not propose to give him any discount despite Mr. Wong’s submissions that the 3^rd defendant would lose everything, in particular, in relation to the pending suits he has with his separated wife. In my view, he was willing to give false evidence against the plaintiff because of his bad relationship with his separated wife. He is the author of his own misfortune if the result of the present case would have any adverse impact on those litigations he has with his separated wife.

CONCLUSION

39.  To conclude, the 1^st and 3^rd defendants will be sentenced to 5 months’ and 6 months’ imprisonment respectively.