CHOW TAK SUNG v. TSE CHING

DCCJ 454/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 454 OF 2002

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REASONS FOR DECISION

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In this action the Plaintiff claims against the Defendant for damages in respect of malicious prosecution, false imprisonment and/or malicious proceedings committed in a foreign jurisdiction i.e. in Shenzhen.

FACTS PLEADED

2. In 1999 the Plaintiff maliciously and without reasonable and proper cause instituted malicious proceedings in foreign court namely People Court of Lowu Shenzhen in which Wing Kay (Shenzhen) Garment Factory ("Wing Kay") was the Plaintiff (Case No. 146 of 1999).

3. The Defendant falsely imprisoned the Plaintiff or procured the false imprisonment of the Plaintiff when the Plaintiff was stopped and detained by the Chinese Authorities at Wang Kang checkpoint when he crossed the border on 7 December 2000. The Plaintiff was only released from the custody of the Chinese Authorities on the 8 December 2002 after he paid the Chinese Authorities a sum of ￥134,690.00.

DENFENDANT'S APPLICATION

4. The Defendant now applies under O.12 r8 of the Rules of District Court and/or the inherent jurisdiction of the Court to stay all proceedings on the grounds that :-

i) Hong Kong is not the proper forum

ii) The People's Court of Shenzhen is a more appropriate forum to try the dispute.

5. Very often litigants including lawyers come to District Court to invoke the inherent jurisdiction of this Court. Let me say once again that the District Court is created by statute and its jurisdiction can only be conferred by the Ordinance which established the District Court. Hence in the District Court there is no inherent jurisdiction.

PLAINTIFF'S CAUSES OF ACTION

6. The Plaintiff claims against the Defendant for damages under 3 limbs namely (i) malicious prosecution, (ii) false imprisonment and (iii) malicious proceedings. These are torts committed outside the jurisdiction i.e. foreign torts.

7. For malicious prosecution to be actionable as a tort the process must have been instituted or carried on maliciously and must have terminated in the Plaintiff's favour. There was no criminal prosecution in China according to the pleadings. Hence there was no determination by the Court in Shenzhen. I do not see how this cause of action can be sustained.

8. As to false imprisonment the imprisonment for which the claim lies must be the act of the Defendant or of someone for whose acts he is liable, or the result of an order of the Defendant. The Plaintiff was stopped by the Chinese Authorities at the border. It was not an act of the Defendant.

9. As for malicious proceedings, it is a fact that until the judgment obtained by Wing Kay (Shenzhen) Garment Factory being set aside or being upset is a regular judgment obtained by Wing Kay (Shenzhen) Garment Factory in a foreign court of competent jurisdiction to which the Defendant was not a party. Before the judgment is being set aside, the Plaintiff cannot be heard to say that it was malicious proceedings.

10. As the Defendant had not asked for the claim to be struck out, I will proceed to consider the application on the basis that if these are actionable torts whether the court in Shenzhen is an appropriate forum to consider the Plaintiff's claim.

THE FORUM

11. In choosing the forum it is essential to consider the parties domicile, the likely issues, the law applicable, and the witnesses who are likely to be called.

THE PARTIES

12. Although in this action the Plaintiff is a Hong Kong resident, it is unknown whether the Defendant is a Hong Kong resident. The Plaintiff's allegation is that the Defendant used Wing Kay to sue the Plaintiff in Shenzhen. Wing Kee is domiciled in China. Unless and until that judgment is set aside or upset by appeal that is a regular judgment, the Plaintiff's claim is doomed. It is not necessary to consider the Defendant's domicile or place of abode.

LIKELY ISSUES

13. By reason of the causes of action pleaded, the likely issues to be considered for malicious prosecutions are :

1) Whether there was a prosecution.

2) Whether the prosecution terminated in favour of the Plaintiff.

3) Whether the prosecution was without reasonable or probable cause and that it had been instituted or carried on maliciously.

4) Had the Plaintiff suffered damages.

14. The likely issues for malicious proceedings are :-

1) Whether the proceedings are undertaken maliciously and without reasonable and probable cause by Wing Kee.

2) Whether the Defendant instituted the proceedings.

3) Whether the proceedings terminated in favour of the Plaintiff.

4) The proceedings resulted in damage to reputation, person or property.

15. The likely issue for false imprisonment are :-

1) Whether the Plaintiff had been unlawfully imprisoned.

2) Whether the Defendant caused the imprisonment.

3) Whether there was any justification in the imprisonment.

4) Whether it was the act of the Defendant or of some one for whose acts he is liable or the result of an order of the Defendant.

WITNESSES

16. Apart from the Plaintiff and the Defendant who can easily come to testify in a Hong Kong Court. The other likely witnesses are :-

1) Staffs from Wing Kay

2) Staff or government officers at the checkpoint

They are all residents of Shenzhen.

THE LAW APPLICABLE

17. Since the alleged torts were committed in Shenzhen, the law that is applicable must be the law of the People's Republic of China.

THE COURT'S APPROACH TO STAY APPLICATIONS

18. The Court's basic approach is to apply the Spiliada test :-

"1) Is it shown that Hong Kong is not only not the natural or appropriate forum for trial, but there is another available from which is clearly or districtly more appropriate than Hong Kong.... The emphasis is upon "appropriate" rather than "convenient" because this is not simply a matter of practical convenience. The purpose is to identify the forum with which the action has the most real and substantial connection".....

2) If the answer to (1) is yes, will a trial at this other forum deprive the Plaintiff of any "legitimate personal or juridical advantages".....

3) If the answer to (2) is yes, a court has to balance the advantages of (1) against the disadvantages of (2).... Deprivation of one or more personal or juridical advantages will not necessarily be fatal to the applicant provided that the court is satisfied that notwithstanding such loss "substantial justice will be done in the available appropriate forum". The court must try to be objective. Proof of this, which can fairly be called the ultimate burden of persuasion, rests upon the applicant for the stay. By these means he establishes that on balance the other forum is more suitable "for the interests of all the parties and the ends of justice". This may be another way of saying that the plaintiffs' choice of forum has been shown to be so inappropriate as to deserve the pejorative description of "forum shopping" and to be restrained accordingly."

LEX FORI AND LEX LOCI DELICITI

19. Where a Plaintiff claims against a Defendant for a tort committed in foreign jurisdiction, in order for a claim to succeed, the Plaintiff would first have to show that the claims are actionable both in the lex fori and the lex loci deliciti. Although the Plaintiff disputes the expert evidence of the Defendant and there was no expert opinion on the Laws of the People's Republic of China from the Plaintiff, it seems the People's Republic of China law do recognize the torts of malicious prosecution and false imprisonment. So the action can be tried either in Hong Kong or in China.

WHICH IS THE MORE APPROPRIATE FORUM

1) AVAILABILITY OF WITNESSES

Should the case proceed most of the witnesses from People's Republic of China will have to be called. Some of them are government officials from the border and staffs from Wing Kay. It would be difficult if not impossible for them to come to Hong Kong not to mention the costs involved in bringing them to give evidence in Hong Kong.

2) NATURAL FORUM OF FOREIGN TORTS

The place in which these alleged torts were committed is Shenzhen. So the natural forum should be in Shenzhen.

In Distillers Co. Ltd. v Thompson [1971] AC 458 it was held that the place of a tort is where in substance the act or omission occurred which gave the Plaintiff his cause of action.

Then in Berezovsky v Michaels [2000] 1 WLR 1004 the House of Lords reaffirmed the line of authorities that suggests that the jurisdiction in which a tort has been committed is prima facie the natural forum for the determination of the dispute.

3) PLAINTIFF'S WORRIES

The Plaintiff worried that he would not be able to have a fair hearing in Shenzhen also he is concerned for his personal safety due to undue and improper influence or connection the Defendant has with the Chinese Authorities. There was no evidence to corroborate or substantiate his claim. The courts of Hong Kong have always shown their respect to the People's Republic of China Courts and have always regarded People's Republic of China Courts as courts of competent jurisdiction.

CONCLUSION

20. Having considered all the above factors I am of the view that Shenzhen is the most appropriate forum to try the present dispute. In the premises I order that all further proceedings in this action be stayed.

21. Costs to Defendant. Certificate for counsel.