PATHAK RAVI DUTT v. SANJEEV MAHESHWARI

HCA 1935/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1935 OF 2011

(Transferred from DCCJ No 3031 of 2009)

____________

____________

________________

J U D G M E N T

_________________

Background

1. Mr Pathak Ravi Dutt, the plaintiff in this action, is an Indian national. He was born in Rudrapur, a village town in the northern Indian state of Uttar Pradesh, where he was educated up to class 10.  After finishing his high school education, the plaintiff worked as a shop assistant in a small telephone shop. From 2000, he began working in Krishna Diamonds, which was a diamond trading company in Mumbai owned by one Mr Mundra, where he learned the skills of assorting polished and cut diamonds.  The plaintiff worked in the diamond business of Mr Mundra until 2007. 

2. The defendant, Mr Sanjeev Maheshwari, is Mr Mundra’s nephew.  The plaintiff came to know the defendant during the time when the plaintiff was working in Krishna Diamonds.  The defendant had learned the diamond business from his uncle Mr Mundra, and had worked for him until 1997.  The defendant had worked and resided in Hong Kong since 1993.  He left Mr Mundra’s business in 1997, but rejoined Mr Mundra again in 2000, and worked in Mr Mundra’s business until about December 2006, when there was a serious money dispute between the defendant and Mr Mundra. 

3. The plaintiff says that in May 2006, during the time when he was working in Krishna Diamonds, he was approached by the defendant.  The defendant informed the plaintiff that he had not yet started his own diamond business in Hong Kong, but would like to employ the plaintiff as a skilled diamond employee once he had established such business.  The plaintiff says that the defendant offered to employ him as “a diamond assorter cum trading/dealing salesman in Hong Kong”, and promised to pay him a more financially rewarding salary than what he was being paid at Krishna Diamonds.  According to the plaintiff, the defendant also promised that he would arrange for and obtain a proper employment visa for the plaintiff to work for him in Hong Kong, provide for his food expenses and reasonable accommodation in Hong Kong, as well as pay for the air tickets for the plaintiff to travel to and fro Mumbai for work (“Offer”). 

4. According to the plaintiff, the defendant had repeated the terms of the Offer between May and December 2006, and in reliance on the defendant’s representations and the Offer, the plaintiff agreed to take up the Offer, and consequently resigned from Krishna Diamonds at the end of January 2007.  According to the plaintiff, the agreement he thus made with the defendant (“Agreement”) was some time in May to December 2006, and contained the express terms summarized in paragraph 3 above, as well as implied terms (inter alia) that the plaintiff’s monthly salary would be paid on time, and that the defendant would not employ the plaintiff in a manner which breaches the laws of Hong Kong or the plaintiff’s conditions of stay in Hong Kong.

5. The plaintiff claims that in January or February 2007, he was asked by the defendant to sign a Domestic Helper Contract (“DH Contract”) to work as a domestic helper in Hong Kong.  He signed the DH Contract in English, “without being aware of the true nature and effect of (its) contents”, which were not explained, read or interpreted to him.  The plaintiff claims that in order to induce him to sign the DH Contract, the defendant had orally represented to him that he was signing “a document in relation to immigration matters in relation to the plaintiff entering Hong Kong” and that the plaintiff “would only work in relation to the diamond trade in Hong Kong” (“Representations”).

6. According to the plaintiff, he arrived in Hong Kong on 14 June 2007 in order to take up employment with the defendant.  He worked at the defendant’s office, and carried out duties of assorting diamonds as well as other office duties, including doing paperwork in the office, meeting customers, marketing and sales. He stayed at the defendant’s flat, which was on the 5^th floor of the building where the defendant’s office was located on the 8^th floor. The flat was occupied by the defendant, his wife, their 2 children and an Indian maid (“Maid”). 

7. It is the plaintiff’s case that it was only after his arrival in Hong Kong, that he discovered that the defendant’s Representations were untrue and were fraudulently made: in that the DH Contract he had signed was a contract to employ him as a domestic helper, and that he was required to work as a domestic helper as well as in the diamond trade.  Upon such discovery (which the plaintiff claims took place on 28 July 2007), the plaintiff asked to be returned to India and to be paid his outstanding salary, but the defendant refused and insisted on the plaintiff completing the 2 years’ employment under the DH Contract.

8. The plaintiff claims that since the defendant failed to pay him his outstanding salary, he was entitled to and did terminate his employment with the defendant on 19 November 2007.  He reported to the police in Hong Kong that the defendant had taken away his passport.  The plaintiff’s case is that as a result, or in retaliation, the defendant maliciously and without cause falsely accused the plaintiff of stealing diamonds from the defendant’s office, which led to charges of theft being laid against the plaintiff.  The plaintiff was consequently remanded in custody, until he was acquitted after a trial in the District Court which commenced on 7 July 2008 (“DCCC 1234/2007”).

9. Against such background, the plaintiff claims against the defendant in these proceedings damages for: fraudulent misrepresentation; breach of the Agreement whereby the defendant agreed to employ the plaintiff as a diamond assorter cum trading/dealing salesman; and malicious prosecution.

10. The defendant gave a different version of the history and events.  According to the defendant, he first met the plaintiff in June 2002 when the plaintiff was working as a domestic servant in his uncle’s home in Mumbai.  There, the plaintiff performed cooking and cleaning duties.  The defendant claims that the plaintiff visited the defendant’s sister (“Sister”) on a number of occasions in 2006, and sought the Sister’s help in asking the defendant to employ the plaintiff as a domestic helper in Hong Kong.  The defendant was initially unwilling, but eventually agreed to employ the plaintiff as an extra domestic helper (in addition to the Maid), to carry out the more physically demanding chores at home.

11. According to the defendant, he traveled to Mumbai in January 2007 to meet the plaintiff in person.  They discussed the terms of employment, and the defendant made the arrangements for the plaintiff to sign the standard contract for employment of a domestic helper in Hong Kong, ie the DH Contract.  The defendant claims that before the plaintiff signed the DH Contract, the defendant had explained the terms to the plaintiff, and had left the DH Contract with the plaintiff to enable the plaintiff to consider the matter.  According to the defendant, when the plaintiff decided to take up the employment and signed the DH Contract, the defendant had already left Mumbai and he asked the plaintiff to forward the DH Contract to the defendant’s friend, who was coming to Hong Kong from Mumbai, and to send the DH Contract together with the plaintiff’s passport and photograph.  The defendant claims that he had prepared the DH Contract himself, based on his experience of employing the Maid, who had come to Hong Kong from India to work for the defendant from 2004.

12. According to the defendant, at all material times before the plaintiff left India, he was fully aware that he would be employed by the defendant as a domestic helper in Hong Kong.  The defendant claims that after the work visa was issued under the DH Contract, the plaintiff came to Hong Kong in mid-June 2007 and commenced work for him as a domestic helper.

13. The defendant admits that he had reported the plaintiff’s theft of diamonds from his office to the police on 19 November 2007, but denies the plaintiff’s claim of malicious prosecution.  He claims that he had probable cause to make the complaint to the police, and further, that he and his wife were merely cooperating with the police by providing information required by the police for their investigation of the charge of theft.

14. To complete the history of events, after the plaintiff was acquitted of the charge of theft, he commenced proceedings against the defendant in the Labour Tribunal in September 2008, for recovery of outstanding salary and other payments due under the DH Contract.  The claim was settled out of court by the defendant’s payment and the plaintiff’s acceptance of a sum of HK $24,500, apparently without prejudice to further claims to be made by the plaintiff.  In about May 2009, the plaintiff commenced further proceedings in the Labour Tribunal, seeking damages from the defendant in respect of fraudulent misrepresentation and malicious prosecution.  These proceedings were transferred to this court.

Issues

15. Due to the divergence in the rival version of events as they were recounted by the plaintiff and the defendant, it is clear that the court’s findings in this case depend primarily on which opposing account of events is to be believed, and in turn, whose evidence is more credible and worthy of belief.  As is unfortunately but frequently the case, after hearing the evidence in this action, I cannot but come to the conclusion that neither the plaintiff nor the defendant has unfolded the whole truth of the matter to the court. 

16. The starting point is that the plaintiff bears the burden of proving his claims for relief in these proceedings.  Most of the key issues in dispute between the parties are factual in nature : whether the defendant made oral representations to the plaintiff, whether there was an oral agreement made for the defendant’s employment of the plaintiff in his diamond business in Hong Kong, whether the defendant made oral representations to the plaintiff in respect of the nature and effect of the DH Contract signed in early 2007, whether the plaintiff understood the nature and effect of the DH Contract he signed or had relied upon any representation made by the defendant, the terms of any oral agreement made for the defendant’s employment of the plaintiff, and the circumstances of the plaintiff’s arrest as a result of the defendant’s complaint of theft.  In deciding these factual disputes, the crucial considerations include the inherent probability of the parties’ assertions, whether these assertions of the parties are consistent with their conduct and the contemporaneous documents (if any), and the credibility and demeanour of the witnesses. 

17. I have borne in mind the observations made by the courts on assessment of the credibility of witnesses by reference to their demeanour. In Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at p 348, Bokhary PJ explained:

“It is common to speak of a trial judge’s advantage of having ‘seen and heard’ the witnesses…. the words ‘seen and heard’ are perhaps capable of giving an exaggerated impression of the role which demeanour plays in the resolution of disputes of fact - demeanour being, as Lord Pearce put it in Onassis v Vergottis [1968]2 Lloyd’s Rep 403 at p 431, ‘mostly concerned with whether the witness appears to be telling the truth as he now believes it to be’. (Emphasis supplied)

Having said that about demeanour, I should make it clear that I accept that trial judges are entitled to take demeanour into account when assessing testimony. In life what really happened is not always what afterwards seems objectively probable. So demeanour has a role to play. Of course trial judges must bear in mind that demeanour can be deceptive and is therefore to be approached with care. In general, I would trust them to do that. Unless good reason to think otherwise appears, trial judges should be taken to have considered demeanour with caution, doing so only in the context of such inherent probabilities as may exist and the whole of the evidence.

It can of course happen that neither rival account is appreciably more inherently probable or improbable than the other, and there may be little or no evidence other than the testimony of the protagonists, each with an interest to serve.  In such a situation, there will be little or nothing for the fact-finding judge to go on apart from demeanour.”

18. In EPI Environment Technologies Inc & Anor v Symphony Plastic Technologies plc & Anr [2005] 1 WLR 3456, 3470-3471 at para 74, Peter Smith J emphasized that it is essential to have regard to the entirety of a witness’s evidence.  As he observed, witnesses can make mistakes, but the mistakes do not necessarily affect other parts of their evidence.  Likewise, witnesses regularly lie.  However, lies themselves do not mean necessarily that the entirety of that witness’s evidence is to be rejected. A witness may lie in a stupid attempt to bolster his case, but the actual case may nevertheless remain good irrespective of the lie.

19. In the present case, there is only the evidence of the plaintiff and the defendant as to the circumstances of the signing of the DH Contract.  The only other factual witness, Mr Mundra, was not present when the DH Contract was signed, or when the defendant allegedly made oral representations to the plaintiff.  Nor did Mr Mundra profess to have any knowledge of the oral Agreement allegedly made between the plaintiff and the defendant between May and December 2006, which is relied upon by the plaintiff. The only person who signed as a witness to the plaintiff’s signature appearing on the DH Contract was not able to give evidence.

The plaintiff’s knowledge of the DH Contract

20. The basis of the plaintiff’s case is that although he signed the DH Contract, he did not know that it was a contract for his employment as a domestic helper of the defendant in Hong Kong, as he did not know English and could neither read nor understand the DH Contract, and the defendant had not explained it to him.  The defendant merely produced the document and asked him to sign, and he did so on the basis of his trust of the defendant.

21. It is trite that it is no answer for a person to disclaim a contract on the basis only that he did not know or read what he was signing.  A lack of understanding of the contents, meaning, terms or effect of a document signed by a person of full age and understanding is not a ground to disown the document.  In Bank of China (Hong Kong) Ltd v.  Fung Chin Kan (2002) 5 HKCFAR 515 at 533, Litton NPJ  stated the following fundamental principle:

“… generally speaking, when a person signs a legal document, he or she is bound by the act of signature: As a matter of general law, it is no defence to say that he or she did not understand the contents of a legal document; that person takes the chance of being bound by its terms, as he or she can take the simple precaution of not signing until its contents have been fully explained and understood.”

22. As Ribiero PJ also explained in his judgment in Ming Shiu Chung v Ming Shiu Sum (2006) 9 HKCFAR 334, at p 361:

“Reliance is universally placed on signatures appended to documents by persons of full age and understanding as signifying the signatory’s assent or adherence to what states. Where such a person has signed a document which purports to have legal effect, the law has never regarded it as enough to show that he signed without knowing its contents for the document to be disavowed. It is an everyday occurrence that people sign documents without reading the small (or even the large) print and therefore signed without actually knowing the terms (or all the terms) of the documents signed. But they are held to be documents which they have chosen to sign unless there is shown to be recognized legal basis for concluding that their apparent consent has been in some way vitiated or that reliance on the document by some other person falls into some category of unconscionable conduct justifying relief in equity.”

23. Leaving aside for the time being the plaintiff’s allegation of the defendant’s misrepresentation, the plaintiff’s case is that as he could not read English, he did not know the terms and effect of the DH Contract which he was asked by the defendant to sign in January 2007.  It is a fact that the plaintiff signed the DH Contract in Hindi.  In support of his case that he did not know or understand the nature of the DH Contract which he signed, the plaintiff maintains that he had not taken English as a subject in school, and that he had only very little knowledge of English, with the ability only to speak, read and write “very simple English”. 

24. It was clear during the trial that the plaintiff was able to understand some of the questions put to him in English.  He answered some questions without waiting for the translation.  However, I do not take this against the plaintiff, particularly since it was emphasized by his counsel that, by the time of the trial before me in January 2014, the plaintiff had been in Hong Kong for a total of 7 years.  With greater exposure to the language during this interim, the plaintiff’s competency in English has improved.

25. However, even after giving credit to the plaintiff for the improvement gained in the interim of the 7 years since he arrived in Hong Kong, I am not at all persuaded that at the relevant time in early 2007, the plaintiff’s knowledge and understanding of the English language was as poor as he would like me to believe.

26. The plaintiff appeared to be an intelligent and progressive young man.  He finished his high school education in the village and worked as an assistant in a small telephone shop in his village town, until he was selected by Mr Mundra to be trained in the diamond trade.  He worked for Mr Mundra in his diamond business in Mumbai, where he learned the specialized skills of assorting diamonds and in the wholesale dealing in and trading of diamonds.  From his evidence, Mr Mundra obviously had a good impression of the plaintiff.  He described the plaintiff as clever, and honest.  The plaintiff worked for Mr Mundra in Mumbai from 2000 to 2007.  Mumbai is a large city.  On the evidence, Mr Mundra’s diamond business involved the import and export of diamonds, with operations in and clients from Hong Kong, India, Japan and Thailand, Hong Kong being the location of the head office.  In the course of his working for Mr Mundra’s company in Mumbai, the plaintiff’s evidence is that he had contact and conversations with clients, including clients who spoke English. Even on the plaintiff’s own evidence, he was able to explain in English the quality, size and source of the diamonds to these clients with whom he dealt in Mumbai, and to answer some of the questions asked by these clients in English. On such evidence, I do not believe, and find it improbable, the plaintiff’s evidence that he could only speak “hi” and “hello”, and that what he described as “normal English” was so confined. 

27. Irrespective of his standard of English, if the plaintiff did not understand the effect and meaning of the DH Contract which he was asked to sign, he could easily have got someone to explain it to him first. His case is that the DH Contract was simply presented by the defendant to him for signature, without any explanation at all from the defendant, but the plaintiff had signed it immediately.  As explained by Litton NPJ in Bank of China (Hong Kong) Ltd v Fung Chin Kan, the plaintiff took his chance with the DH Contract and should be bound by what he chose, blindly or carelessly, to sign. 

28. Counsel for the plaintiff submitted that the defendant is not an honest or credible witness, as he was not believed by the judge in DCCC 1234/2007, in which the plaintiff was charged with theft of the defendant’s diamonds, but was acquitted.  It was submitted that the defendant’s denial of the plaintiff having undertaken work in the defendant’s office is incredible, and that his evidence should be rejected as being generally improbable and fraught with inconsistencies.  I agree that the defendant’s evidence, that the plaintiff had only worked for him as a domestic helper, is totally unreliable, but even if I should ignore the entirety of the defendant’s evidence as being unreliable, I must still be satisfied that the plaintiff’s case can be believed, and that he has discharged his burden of proof on a balance of probabilities.

29. The independent and contemporaneous documents are sparse.  There is the DH Contract itself signed by both the plaintiff and the defendant.  There is the indisputable evidence of : (1) the plaintiff having been issued with a visa by the Hong Kong Immigration, which was good for a single journey to Hong Kong on or before 7 September 2007, for his employment by the defendant as a domestic helper under the DH Contract; (2) the plaintiff’s passport having been chopped by Hong Kong Immigration on 13 June 2007, upon his entry that day, with permission to remain until 13 June 2009 or 2 weeks of determination of the contract, for employment by the defendant under the DH Contract; and (3) the plaintiff having been issued with a Hong Kong Identity Card on 20 June 2007. 

30. The undisputed evidence is that the plaintiff was told to pick up his employment visa in India, and that he travelled alone to Hong Kong in June 2007.  When the plaintiff was cross-examined as to whether and how he had completed the arrival card before entry into Hong Kong, and as to the reason he gave for coming to Hong Kong, the plaintiff claimed that he had not filled out any form, and that (as he could not read English) he had asked a young Indian boy, travelling on the same flight, to complete the form for him.  The plaintiff had simply signed on the form completed by this young boy, without having to give him his reason for travel, or any other information.

31. Upon being questioned by the court as to whether, at the Hong Kong Immigration counter upon his arrival in Hong Kong, he was asked questions by the immigration officer as to why he had come to Hong Kong, the plaintiff gave inconsistent answers.  At first, he claimed that he was not asked any questions, and had only produced his passport and visa.  Then, when pressed to confirm if the immigration officer had asked if he had come to Hong Kong to work, or as a tourist, the plaintiff said that his Indian friend told him at the counter what the immigration officer was saying to him (ie to the plaintiff), and that he spoke in Hindi in reply.  He claimed that the immigration officer asked in English if he had come to Hong Kong “to work”, and he asked his friend to reply for him, in English, that he had come to work.  He insisted that this Indian friend was the young boy who had travelled on the same plane and had completed the arrival form for him, who was standing either in front of him or at his back in line at the immigration counter, and that this boy acted as his interpreter.

32. In my view, the plaintiff’s evidence in relation to his encounter with the immigration officer at the Hong Kong airport is contrived, incredible, and totally improbable.  His testimony was inconsistent as to whether any questions had been asked of him at all at the immigration counter, and further, it was aimed to highlight the fact that he could not communicate in English, and had to rely on someone else to interpret, before he could understand the questions asked and answer such questions. 

33. I reject the plaintiff’s evidence in this regard for a number of reasons.  First, it is fraught with inconsistencies.  Secondly, I find it highly improbable and incredible that an immigration officer in Hong Kong would be prepared, in the discharge of his duties to check compliance with the conditions of a traveller’s visa upon entry into Hong Kong, to permit an unknown traveller to act as an interpreter of another traveller, or to rely on such interpretation made by one traveller on behalf of another traveller when they are totally unrelated (and not travelling together).

34. Further, even if I should believe the plaintiff’s evidence, that the defendant had agreed to employ him to work as a diamond assorter or salesman in the defendant’s business in Hong Kong, the defendant must have known that the visa which was issued by Hong Kong Immigration only permitted the plaintiff to come to Hong Kong to work as a domestic helper.  That is so stated in the visa on the plaintiff’s passport, and the evidence is that the defendant had dealt with and arranged for the application.  It is inherently improbable that, from his own personal experience and from his previous experience of employing the Maid, the defendant would not know or envisage that the plaintiff would have to present his passport and visa/work permit at the immigration counter upon the plaintiff’s arrival in Hong Kong, and that the plaintiff would be asked for his reason to come to Hong Kong, and might be asked about either the DH Contract specified in the work permit, or generally about the nature of his work in Hong Kong.  It is therefore inherently improbable that the defendant would risk not telling the plaintiff, before his (the plaintiff’s) leaving India for Hong Kong, that his visa or work permit was confined to a domestic helper contract and to the plaintiff working as a domestic helper.  Without prior warning, it is very probable that the plaintiff would disclose to the Hong Kong immigration officer upon his entry that he was coming to Hong Kong to work for the defendant as a diamond assorter or salesman - and this would have created difficulties, with the likely consequences of preventing the plaintiff’s entry, as well as rendering the defendant liable to the authorities by reason of his submission of a DH Contract which is false or a sham. 

35. On a balance of probabilities, I consider that it is more likely than not that the defendant would have informed the plaintiff that the only way to obtain a visa and work permit for the plaintiff to come to Hong Kong to work for the defendant was to produce the DH Contract, and for the plaintiff to come to Hong Kong as a domestic helper employed by the defendant. I believe that it is for this reason, that the plaintiff emphasized in his testimony that what he informed the immigration officer was that he had come to Hong Kong “to work”, ie without specifying whether he was to work as a skilled diamond worker as he professed to be, or as a domestic helper.

36. On the evidence, the plaintiff was keen to come to Hong Kong and work.  He would be paid a salary higher than what he was getting from his job with Mr Mundra in India.  There was good reason for him to agree to the arrangement proposed by the defendant.

37. The plaintiff’s claim of ignorance as to the nature of the DH Contract that he had signed, and of the fact that he was to come to Hong Kong under an arrangement whereby he was to work as the defendant’s domestic helper, is also rendered improbable and unbelievable, when considered in the light of the fact that shortly after his arrival in Hong Kong, on 20 June 2007, he had attended the immigration department in Hong Kong with the defendant’s wife, to apply for his Hong Kong identity card.  It is improbable that the immigration officer would not have asked the plaintiff and/or the defendant’s wife questions as to the plaintiff’s employment in Hong Kong under the DH Contract, in view of the condition of his stay under the visa.  The plaintiff was evasive when cross-examined as to whether the immigration officer had asked him questions at this appointment.  He claimed that he could not recall what questions were asked, but accepted that the immigration officer had asked questions in English, and would only say that if he had been asked questions, he must have answered them.

38. Counsel for the plaintiff argued that there is no evidence as to the usual practice adopted by immigration officers at the airport counter, on what questions would be asked, or if any questions would be asked, and he queried whether judicial notice can be taken of such practice.  In my view, it is all a question of deciding the probabilities and improbabilities of a case by common sense and common human experience.  In my judgment, the plaintiff’s evidence defies common sense and logic.

39. The plaintiff’s claim of ignorance as to the DH Contract being one for his employment as a domestic helper is also inconsistent with his account of how he had complained to the police, when he finally decided in November 2007 to leave the defendant’s employment.

The circumstances of the plaintiff leaving his employment

40. The plaintiff’s case is that after his arrival in Hong Kong in June 2007, he carried out work in the defendant’s office.  However, from the second month, the plaintiff was instructed by the defendant and his wife to carry out domestic duties in the flat, in addition to his usual duties in the office.  The plaintiff claims that the defendant also failed to pay his monthly salary.  He complained to the defendant about having to carry out domestic duties, and quarrels ensued between the plaintiff and the defendant’s wife.  At the end of July 2007, the plaintiff informed the defendant that he no longer wished to continue working for him, as he had not expected to carry out domestic duties, and that he would like to return to India.  According to the plaintiff, it was only then that he was first told by the defendant that he had been brought to Hong Kong under a domestic helper visa, and that this was the only visa that could be obtained for the plaintiff to live and work in Hong Kong.  The plaintiff claims that he immediately asked to be returned to India, but the defendant refused, and informed the plaintiff that the Immigration Department in Hong Kong would not allow the defendant to release the plaintiff, and that under the domestic helper visa, the plaintiff had to work for 2 years before he could return to India.

41. It was not until November 2007 that the plaintiff decided to put an end to the predicament in which he found himself in Hong Kong.  He explained what happened in the interim between July and November 2007, as follows.

42. According to the plaintiff, after realizing that the defendant had employed him under a domestic helper visa, to work both in the defendant’s office and at home, he informed the defendant that he did not wish to carry out risky work outside the office without insurance.  The defendant initially promised the plaintiff that he would only have to work in the office, and would not be required to perform any domestic helper duties.  The plaintiff claims however that the defendant did not live up to that promise.  After 2 weeks, he was again required to do work outside the office, and he was still required to carry out domestic helper duties.

43. In September 2007, the plaintiff again informed the defendant that he did not wish to continue working for the defendant.  The defendant had taken the plaintiff’s passport upon his arrival, and when the plaintiff asked the defendant to return his passport, to pay his outstanding wages and to give him a return air ticket, the defendant refused.  The plaintiff said that between September and mid-November 2007, he felt frustrated and helpless, and did not know what to do about his situation and predicament. The defendant and his wife continued to insist that he should continue to work in the office and carry out domestic duties, he did not have his passport, and he did not receive his full wages. 

44. Put simply, it was only on 18 November 2007 that the plaintiff finally decided to take some action.  He informed the defendant that day that if he refused to return his passport and get him an air ticket to India, he would report the matter to the police.  The defendant did not accede to the plaintiff’s demands.  The following day, the plaintiff asked the defendant for his outstanding salary, and when he did not receive a satisfactory response from the defendant, the plaintiff was “fed up” and finally decided to leave the office and to go to the police.

45. According to the plaintiff’s witness statement made for these proceedings and signed on 28 December 2010, he went to the Tsim Sha Tsui Police Station on 19 November 2007.  There, he told the police officer, in the little English that he could manage, that: (1) the defendant was his employer; (2) he was a domestic helper; (3) but he had to work in the defendant’s office; (4) he wanted to return to India; and (5) the defendant was holding his passport and refused to return it. 

46. The substance of the plaintiff’s complaint to the police is relevant to the  credibility of his claim that he had no knowledge that the DH Contract was for his employment as a domestic helper, and whether he had been induced to sign the DH Contract by the defendant’s misrepresentations.

47. If the plaintiff’s evidence is to be believed, he had been deceived into signing a contract to work as a domestic helper in Hong Kong, when the defendant had agreed to employ him as a diamond assorter and salesman.  On his case, he had been made to work as a domestic helper for nearly 5 months, in addition to carrying out duties in the defendant’s office and for his business.  Of course, it was also his complaint that the defendant had taken away his passport, and had refused to let him return to India.  After deliberating for 5 months over his conundrum, as he claims, and upon finally deciding to take the course of resorting to the police for help, the plaintiff’s report to the police was not that he had been employed to work in the defendant’s office, but was made to work as a domestic helper.  Instead, the plaintiff complained to the police that “he was a domestic helper”, but had been made to work in the defendant’s office.  In my view, this can only mean that his complaint was a reflection of the truth, and that he had indeed been employed as a domestic helper. 

48. There is also no question of the plaintiff’s inability to correctly express himself to the police when he made the complaint in November 2007.  As he admitted, he had managed to state the 2 scenarios in English, of being a domestic helper, and working in the defendant’s office.  It was simply a choice of stating which of the 2 scenarios was contrary to his agreement.  By the time of the plaintiff’s complaint to the police, he had been in Hong Kong for 5 months.  His English would have further improved.  In fact, it would have been simpler for him to complain that he had been cheated by the defendant, and been made to work as a domestic helper – if that was indeed true.

49. The plaintiff’s attempts in court to distance himself from the account given in his witness statement, and to change his evidence to say that he had only informed the police that he had “worked”, at home and in the office, are totally disingenuous.  The witness statement in English was certified to have been translated to the plaintiff, who signed a statement of truth.  He must have understood, and meant, what he stated in his witness statement as to his report to the police.

50. I can only conclude from all the evidence that the plaintiff’s complaint to the police in November 2007 represented the truth and substance of his case: that he was a domestic helper, as he knew, and had agreed to sign the DH Contract to work for the defendant as a domestic helper in Hong Kong.  This is in fact consistent with the plaintiff’s institution of proceedings in the Labour Tribunal in September 2008 for payment of the salaries and other amounts he claimed to be payable by the defendant to him under the DH Contract.

Whether there was misrepresentation

51. It follows from my above findings on the evidence that I reject the plaintiff’s claim, that he had been induced to sign the DH Contract by the defendant’s misrepresentations (paragraph 11 of the Re-Amended Statement of Claim) that the plaintiff was signing a document in relation to immigration matters concerning the plaintiff entering Hong Kong, and that the plaintiff would only work in relation to the diamond trade in Hong Kong.  My finding is that the plaintiff knew the nature of the DH Contract to be for his employment as a domestic helper of the defendant, and that he had agreed to sign such a contract.

Whether there was an oral Agreement

52. I also reject the plaintiff’s claim that there was an oral Agreement made with the defendant between May and December 2006, for the defendant’s employment of the plaintiff as a diamond assorter or salesman in Hong Kong, on the terms alleged in paragraphs 8 and 9 of the Re-Amended Statement of Claim.  His evidence has been shown to be unreliable and his credibility in serious doubt. I find that the plaintiff had been informed and had agreed that he could only be employed by the defendant as a domestic helper in Hong Kong, that he agreed to be so employed, that a DH Contract had to be signed to obtain a visa to come to Hong Kong, and that he agreed to sign and did sign the DH Contract in order to get the visa. 

53. As indicated in paragraph 28 above, after hearing the defendant’s evidence and after considering the transcript of the evidence which the defendant gave in DCCC 1234/2007, I find incredible the defendant’s claims, that he had not asked the plaintiff to carry out and the plaintiff had not carried out any duties in the office in Hong Kong.

54. Even if the defendant had agreed to employ the plaintiff to carry out the duties of a diamond assorter or salesman in Hong Kong in the defendant’s business, the performance of such an agreement without the necessary visa from the Hong Kong Immigration Department would have been illegal, and in breach of the plaintiff’s conditions of stay and entry into Hong Kong.  The defendant has not in his Amended Defence pleaded either illegality or the Agreement being in breach of public policy.  However, it is clear from the evidence that if the Agreement relied upon by the plaintiff was made between the plaintiff and the defendant, it was part of an arrangement between them which had the object of defeating the visa and work permit which only permitted the plaintiff to work as a domestic helper in Hong Kong, and misleading (if not deceiving) the Immigration Department and the authorities in Hong Kong.  The performance of the Agreement would have been illegal without a proper visa and work permit issued to the plaintiff.  In all these circumstances, I would not have enforced the Agreement even if I had found that it had been made (paragraph 16-208 Chitty on Contracts Vol 1 31^st ed). 

The claim of malicious prosecution

55. The plaintiff’s claim is that in retaliation against the plaintiff’s termination of employment and reporting to the police that he had worked in the defendant’s office, the defendant had maliciously and without cause accused the plaintiff of having stolen diamonds from the defendant, and had continued to prosecute charges against the plaintiff for theft.  The plaintiff claims damages against the defendant for malicious prosecution.

56. The plaintiff’s claim is made against the defendant, as the complainant of an offence allegedly committed by the plaintiff.  The plaintiff does not dispute that in such a case, the applicable principles are as summarized in Oh Jae-Hoon Eugene v Richdale [2004] 4 HKC 315 (Court of Appeal).  The plaintiff bears the onus of proving all the ingredients of malicious prosecution, and as can be seen from the judgment of Ma CJHC in Oh Jae Hoon Eugene (at paragraph 19), it is not easy to establish that a complainant such as the defendant in this case can be treated as a prosecutor for the purposes of the tort.

57. After considering the authorities, Ma CJHC summarized the principles, as follows:

“In my view, the following principles emerge from the authorities as to the question of how and in what circumstances in each given case, a complainant (such as the defendant) is to be treated as a prosecutor for the purposes of the tort of malicious prosecution :

(1) The basis of the tort lies in the wrongful use that a person has made of the legal system (namely, the process of the Court) to set in motion a prosecution of another person on a criminal charge. In short, there is involved the abuse of the Court’s criminal process in order to secure the wrongful conviction of another person: see Commercial Union at 192 and 199 per Richardson J. As Lord Steyn said in Gregory at 426C-D:

A distinctive feature of the tort is that the defendant has abused the coercive powers of the state.

(2) The pre-requisite in any case of malicious prosecution is that the complainant has lied or procured others to lie to the authorities in order to try to have another person prosecuted on a criminal charge. This, however, is not enough. The lie must also “at least” have influenced the relevant prosecution authority to prosecute:-see Commercial Union at 196 (lines 20 to 25).

(3) Even if the above is satisfied, it still does not follow even at this stage that the complainant can be treated as the executor. The final step (and this, I emphasize, is critical) is it must be demonstrated that the lie in the circumstances of the case was such that it became virtually impossible for the prosecuting authorities to exercise any independent discretion or judgment as to whether or not to prosecute. Put another way, where it is shown that the prosecuting authorities were able to and did exercise an independent discretion or judgment in investigating the case and in the decision to prosecute the Plaintiff, the nexus between the lie (as told or procured by the complainant) and the prosecution is broken and the complainant will not in the circumstances be held to be the prosecutor...

(4) In Commercial Union, Richardson J, in a judgment that critically analyzed the authorities in a number of common law jurisdictions on this point, said that 193:

The tension is particularly acute where the defendant has given false and incriminating information to the police who have then exercised their own judgment in deciding to prosecute.

… In the modern New Zealand context particular weight should in my view be given to two considerations.  One is that the police have the training and experience to investigate a possible offence impartially and with skill and in that process to assess whether the evidence justifies the invoking of the criminal process.  Then if it does to commence in conduct that process.  And the police have the professionalism to critically weigh and test the reliability of complaints and information which may be affected by self interest or ill-will.  To proceed on the premise that wherever it emerges that false information was given to the police the intelligent exercise of the discretion to prosecute was impossible, does not reflect the ordinary performance by the New Zealand police of their important responsibilities.”

58. The plaintiff in this case claims that the defendant and his wife had lied to the police, in wrongly accusing the plaintiff of stealing diamonds entrusted to him by the defendant in the morning of 19 November 2007.  The defendant and his wife had given statements to the police as to the alleged circumstances of how the plaintiff had been given diamonds, which he allegedly never returned.  The defendant gave evidence at the trial of DCCC 1234 /2007.  The plaintiff claims that it was not possible for the police to exercise any independent judgment or discretion before charging the plaintiff, since whether the misappropriation of the diamonds had taken place was a matter entirely within the defendant’s knowledge.

59. In his submissions on the defence to the claim of malicious prosecution, counsel for the defendant has focused on whether the nexus between any lie told or procured by the defendant and the prosecution had been broken, by virtue of the independent judgment of the police or prosecution.

60. In the case of Oh Jae-Hoon Eugene, the court already dismissed the argument that it is sufficient merely to show that but for the lie, the police would not have prosecuted the plaintiff.  As Ma CJHC pointed out (at paragraph 23) of his judgment, where a sophisticated and established prosecuting authority such as the Hong Kong Police Force or the Department of Justice is involved in a prosecution, caution must be exercised before identifying anyone else as a prosecutor.  The tort involves the malicious prosecution of another person, not a malicious reporting to the authorities. 

61. Whether independent judgment has been exercised by the prosecution is a question of fact depending on the circumstances of each case.  In this case, although it can be said that the plaintiff and the defendant were the main protagonists, the police had obtained statements from a number of witnesses (including the defendant, his wife and the supplier of the diamonds) in November and December 2007 and in April 2008, and had considered such statements (for whatever they were worth) as well as the CCTV footage which recorded the image of the defendant’s office at the time of the alleged theft.  The fact that such evidence was ultimately rejected by the court at DCCC 1234/2007 as unhelpful does not alter the fact that such evidence had been considered and no doubt evaluated by the police before the final decision was made to prosecute the defendant and to pursue DCCC 1234/2007.  The defendant’s testimony was rejected by the trial judge in DCCC 1234/2007 as being fraught with inherent improbabilities.  After a full trial and after considering all the evidence, the learned judge in DCCC 1234/2007 observed that there was a suspicious time gap between the time when the plaintiff left the defendant’s office and the time when he went to the police station, but that the suspicion was not sufficient to support a conviction. 

62. In Commercial Union Assurance v Lamont [1989] 3 NZLR 187, Richardson J observed at p 199:

“To proceed on the premise that wherever it emerges that false information was given to the police the intelligent exercise of the discretion to prosecute was impossible, does not reflect the ordinary performance by (the police) or their important responsibilities.

… The core requirement is that the defendant actually procured the use of the power of the States to hurt the plaintiff.  One should never assume that tainted evidence persuaded the police to prosecute.  In some very special cases, however, the prosecutor may in practical terms have been obliged to act on apparently reliable and damning evidence supplied to the police.  The onus properly rests on the plaintiff to establish that it was the false evidence tendered by a third party which led the police to prosecute before that party may be characterized as having procured the prosecution.”

63. On the evidence, I cannot agree that the facts of the case of theft were such that it was impossible for the police and the prosecuting authorities to exercise any independent discretion or judgment as to whether to prosecute the plaintiff.  If, at any time after the plaintiff was charged for the offence of theft on 20 November 2007, the police considered, upon reviewing further police statements and/or the CCTV footages, that the evidence did not support the charge, no doubt the decision to prosecute the plaintiff could have been reviewed or revoked or changed by a decision not to pursue the matter to trial.  The fact of a failed criminal prosecution does not in my view necessarily mean that false information had been given to the police or the prosecution.  Moreover, as Lam J (as he then was) pointed out at first instance in Eugene Jae Hoon Oh v Richdale, the court would not necessarily infer from the fact that false information had been given to the police that the police investigation was tainted.  Nor was the police obliged to act even if a decision had to be made on the strength of the defendant’s evidence alone.  If the police were not satisfied, after reviewing the statements and the CCTV footage, that there was a case of theft, they would not have proceeded with the trial of DCCC 1234/2007.  There is nothing to suggest that the defendant’s evidence had so prejudiced either the police investigation or the discretion to prosecute that these can be said to have been totally negated.  As the court emphasized in Oh Jae Hoon, this is not to be lightly inferred and caution should be exercised.

64. On the facts and evidence of this case, I am not satisfied on a balance of probabilities that the prosecuting authorities did not and had not been able to exercise independent judgment in investigating the complaint of theft, and in its decision to prosecute the plaintiff for theft.  Since the necessary ingredients of the tort of malicious prosecution have not been proved, I dismiss the plaintiff’s claim.

Conclusion

65. For all the above reasons, the plaintiff’s claims in this action are dismissed. 

66. I have found both parties’ evidence to be incredible, and that the defendant had arranged for the plaintiff to work illegally in his office as part of the defendant’s business.  The conduct of the parties can be said to be reprehensible, and I would not countenance such conduct in any way by making any order of costs in favor of either party, save that the plaintiff’s costs are to be taxed in accordance with the Legal Aid Regulations. The case may be referred to the Department of Justice for further action.