LAW KA YAN THOMPSON v. HO KANG WING

HCA 1926/2015

[2020] HKCFI 513

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1926 OF 2015

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J U D G M E N T

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A. INTRODUCTION

1.  This is the trial of the action brought by the plaintiff against the defendant based on the torts of intimidation and harassment.

2.  As stated in the defendant’s List of Issues (“LoI”), the issues can be summarized as follows:

(1)  Was the plaintiff intimidated or harassed by the Alleged Wrongful Acts (as defined below) of the persons purporting to act as the agents of the defendant (the “Purported Agent(s)”)?

(2)  If so, did the defendant cause the Purported Agent(s) to carry out the Alleged Wrongful Acts?

(3)  If so, what is the appropriate relief?

B.  OVERVIEW

B1.    Overview of the parties’ positions

3.  There is no direct evidence of the defendant having instructed the Purported Agent(s).  The plaintiff relies solely on inferences and hearsay evidence to draw the conclusion that the Purported Agent(s) were instructed by the defendant, or that his/her acts were conducted on the defendant’s instruction.  The defendant says that he is a victim of estate agency scam.  He does not know the Purported Agent(s) and has never instructed or caused anyone to carry out the Alleged Wrongful Acts, or any act, which would amount to intimidating/harassing the plaintiff.

B2.    The plaintiff’s case

4.  The plaintiff’s case is that he and Mr Ngai Lok Kei (“Mr Ngai”) are friends, the latter being a licensed estate agent. 

5.  The plaintiff says that he and the defendant were friends until the defendant’s dispute with Mr Ngai. The defendant also knows the plaintiff’s brother, Mr Law Ka Shing (“Carson”).

6.  In or about February/March 2015, Mr Ngai received a phone call from the defendant.  The defendant claimed that Mr Ngai had defrauded or deceived him in the sale and purchase of a property in Tin Shui Wai (the “Kingswood Villas Property”)which was sold by Mr Ngai as the estate agent (acting for the defendant and the defendant’s wife Madam Tam) to Take Point Investment Holding Limited, the shares of which are in the name of the defendant’s wife (“Take Point”). Mr Ngai at the time was acting as estate agent through Wealth Trustful Property Agency Limited, of which Mr Ngai was an employee and (which the defendant later found out) a director as well (“Wealth Trustful”).  The defendant allegedly accused and cursed Mr Ngai with violent language. 

7.  Between March and June 2015, the dispute and argument between the defendant and Mr Ngai continued, during which the defendant contacted Carson (the plaintiff’s brother) and allegedly disturbed, annoyed and/or interfered with him. 

8.  It is alleged that the defendant secretly obtained certain photographs of a female named Madam Poon Lai Shan (“Madam Poon”), the plaintiff’s mistress, which the defendant sent to Carson by Whatsapp messages on 9 May 2015.

9.  By a Writ dated 12 June 2015, Take Point, Madam Tam and the defendant commenced HCA 1289/2015 (the “Take Point Action”) against, inter alios, Mr Ngai and Madam Poon as two of five defendants.  The plaintiff is not a party in those proceedings. 

10.  The dispute in the Take Point Action relate to secret profits made or intended to be made by Mr Ngai and others in the sub-sale of the Kingswood Villas Property to Take Point.

11.  The plaintiff produced a recording of part of a telephone conversation between the defendant and Carson in the morning of 30 May 2015 (the “30 May Call”).  The defendant inter alia indicated to Carson that he could engage debt collectors, and it was not his concern if the debt collectors used any ‘evil means’ to collect money.

12.  On or around 19 June 2015, the plaintiff received WhatsApp messages from the Purported Agent(s):

(1)  claiming that he represents “Mr Ho”, and is chasing the plaintiff for HK$16 million to be paid within 2 days, otherwise he would be responsible for the consequences;

(2)  showing photographs of La Salle Primary School, where Carson’s sons were studying;

(3)  showing photographs of the plaintiff and his daughters;

(4)  showing photographs of a Manhattan Hill residential accommodation, where the plaintiff’s mother lives; and

(5)  issuing other threats.

13.  On 21 June 2015, the plaintiff returned a phone call to the Purported Agent(s), who made verbal threats to the plaintiff and referred again to HK$16 million.

14.  By 27 July 2015, Madam Poon and Mr Ngai indicated they would contest the Take Point Action by filing acknowledgments of service.

15.  On 13 August 2015, Mr Ngai was physically attacked and admitted to hospital.  Mr Ngai has reported the same to the Police.  The plaintiff has not mentioned any result of such Police investigation.

16.  On 13 August 2015 (after Mr Ngai was attacked), and on 16 August 2015, the plaintiff allegedly received missed calls and a WhatsApp message from the Purported Agent(s).

17.  From 13 August 2015 onwards, the plaintiff, Madam Poon, Mr Ngai and the plaintiff’s brother (presumably, Carson) and the plaintiff’s family were allegedly terrified by the events and frightened.

18.  In relation to the abovementioned events, the plaintiff applied for and obtained an ex parte injunction against the defendant on 21 August 2015; the injunction was continued on 28 August 2015; and ordered on 5 February 2016 to be further continued until trial or further order of the court(the “Continuation Order”). 

19.  Between the ex parte injunction and the Continuation Order, the court narrowed the scope of the injunction to cover fewer addresses and to remove any reference to the plaintiff’s relatives or friends (including Mr Ngai, Madam Poon, and Carson), as the plaintiff had no locus standi to seek an injunction on their behalf. 

B3.    The defendant’s position

20.  The common third limb for the tort of harassment and intimidation is whether any damage is caused to the plaintiff. 

21.  One must take the plaintiff (the purported victim) as one finds him.  Given the plaintiff’s reaction, the defendant submits that the plaintiff had not proved any damage as a result of the Alleged Wrongful Acts ie any of the severe distress and/or fright as alleged. 

22.  By contrast, the plaintiff has taken the initiative to contact the Purported Agent(s), to argue, and to even arrange a meeting with him/her. 

23.  For example, in response to the June 2015 WhatsApp Messages, the plaintiff had actually exchanged several WhatsApp messages with the Purported Agent(s) between 21 and 22 June 2015 and stated as follows:

(1)  The plaintiff did not owe to “Mr Ho”, and that he had no business dealings with such “Mr Ho”.  There were several misunderstandings between the plaintiff and “Mr Ho”, and he did not want to aggravate such misunderstandings.

(2)  Since the Purported Agent(s)’ WhatsApp messages, the plaintiff had been trying to contact “Mr and Mrs Ho” to resolve the matter.

(3)  The plaintiff even challenged the Purported Agent(s) to provide the relevant evidence to demonstrate that the plaintiff owed “Mr Ho” money, and if so, to provide such evidence quickly, especially since the plaintiff was about to leave Hong Kong the next day ie 22 June 2015 and back on 29 June 2015.  After then, the plaintiff would personally contact “Mr Ho”.

(4)  The plaintiff invited the Purported Agent(s) to send the relevant documents to the plaintiff’s mother’s home as the plaintiff was there at the time.  The plaintiff followed up by sending provocative messages to the Purported Agent(s) that if he/she was to collect debt, at the very least, he/she needed to present evidence such debt exists. 

(5)  The plaintiff invited the Purported Agent(s) to discuss the matter together with “Mr Ho” and him when the plaintiff returns to Hong Kong after 29 June 2015. 

(6)  The plaintiff repeatedly emphasized to the Purported Agent(s) that he did not know what debt he owed to “Mr Ho”, and even offered to meet with the Purported Agent(s) and discuss the possibility of meeting in Tsuen Wan, as well as a date and meeting time.

(7)  When the Purported Agent(s) allegedly sent further photographs to the plaintiff, the plaintiff’s response was he wanted the photographs back; then he said he was not convenient (“唔方便”).  The Purported Agent(s) clarified that he never harassed the plaintiff’s family (“我冇搞你屋企人”), but only wanted to pursue the debt owed to “Mr Ho” and urged the plaintiff to repay the money via cheque to a law firm with settlement agreement. 

24.  As for the telephone call between the plaintiff and the Purported Agent(s) on 21 June 2015 (a call which the plaintiff himself made to the Purported Agent(s)), the plaintiff had similarly debated and reasoned with such person(s) in order to reduce the sum demanded. 

25.  In the circumstances, the defendant submits that the plaintiff’s interactions with the Purported Agent(s) fail to demonstrate that the plaintiff suffered any of the alleged mental distress or other damage.  By contrast, the plaintiff was provocative and defiant.  His behaviour was not that of a victim intimidated or harassed. Instead, the plaintiff offered to meet with the Purported Agent(s) directly to negotiate matters, and even had confidence to debate matters with such person over a telephone call.

26.  It is not only illogical for the plaintiff to initiate such meetings with the Purported Agent(s) (without engaging the assistance of the Police), but it is furthermore illogical for the plaintiff to tell such person where he was located (ie at his mother’s home), where he was going (ie due to leave Hong Kong on 22 June), and when he was due to return (ie his return on 29 June 2015). 

27.  Furthermore, despite informing the Purported Agent(s) that he would return to Hong Kong on 29 June 2015, the plaintiff has not put forward any evidence of being harassed/intimidated after that date (until mid-August 2015).  In the circumstances, this strongly suggests there was little weight to the threats posed by way of the June 2015 WhatsApp Messages and June 2015 phone call.    

28.  It is significant that the plaintiff has failed to report any of the Alleged Wrongful Acts to the Police.  Given the plaintiff was able to speak to, and make arrangements to meet with, such Purported Agent(s), he could have easily involved the authorities at an early stage. 

29.  By contrast, the defendant who is anxious to prove his innocence has initiated a Police investigation into the matter of identifying the Purported Agent(s).  The Police eventually reported that there was insufficient evidence to charge any persons. 

30.  As for the missed calls and WhatsApp Message which have taken place on 16 August 2015, the plaintiff has provided no evidence of why he was purportedly intimidated/harassed by such missed calls or isolated message.

31.  The defendant further submits that the analysis above is equally apposite in reaching the conclusion that a reasonable person in the plaintiff’s position would not be put in a perceivable fear of the infliction of immediate, unlawful physical violence. The conversational nature of the interaction between the plaintiff and the Purported Agent(s), particularly one of the latter messages from the Purported Agent(s) on 21 June 2015 ie “我冇搞你屋企人” and “假若你願意退還間商舖的錢，請開票上律師樓簽回和解書” further emphasises that immediate threat is unrealistic.  If the plaintiff had felt any apprehension of immediate violence, then he would not have told them he would return after the 29June to contact him/her.

32.  In light of the above, the defendant submits that even though the Alleged Wrongful Acts may have amounted to unlawful threat(s), the plaintiff did not experience any of the alleged damage.  Furthermore, a reasonable person in the plaintiff’s position would have little reason to consider that such acts would amount to putting such person in fear of immediate, unlawful physical violence. 

33.  The defendant submits that everything depends on the first issue set out at paragraph 2 above.  If the plaintiff cannot prove that, there is no need to go into the second or third issue.  The first issue gives rise to the following questions:

(1)  What were the Alleged Wrongful Acts pleaded?  

(2)  Was the plaintiff threatened by such Alleged Wrongful Acts? 

(3)  Since the relief is meant to include persons other than the plaintiff (ie his family and friends), who were these other persons and were they threatened by such Alleged Wrongful Acts?

C.  WHAT WERE THE WRONGFUL ACTS PLEADED?

34.  As stated in the defendant’s LoI, in the Amended Statement of Claim (“ASOC”), the plaintiff has only pleaded particulars of Alleged Wrongful Acts relating to:

(1)  The WhatsApp messages sent by the Purported Agent(s) to the plaintiff on or about 19 June 2015 and/or 16 August 2015.

(2)  The words spoken by the Purported Agent(s) to the plaintiff in a telephone call on 21 June 2015.

(collectively, the “Alleged Wrongful Acts”)

35.  During the opening submissions, the plaintiff’s counsel tried to expand the Alleged Wrongful Acts to include the assault of Mr Ngai in the late evening of 13 August 2015.  I agree this is impermissible because:

(1)  The attack on Mr Ngai was not pleaded as an Alleged Wrongful Act caused by the defendant (the “Ngai Attack”).  A serious allegation like that cannot be implied or inferred.

(2)  In any case, Mr Ngai in his affirmation filed for the ex parte injunction admitted that the assailants did not say that they were sent by the defendant and the defendant did not say that he was responsible for sending the assailants.  Mr Ngai alleged that he never had grudges with any other people, but that was clearly untrue.  Even the plaintiff admitted to the defendant’s wife that Mr Ngai (nicknamed ‘Fat Boy’) was in a habit of receiving threatening calls late at night.  Hence, quite apart from the lack of pleading, there is no evidence that the assault on Mr Ngai was caused by the defendant.

(3)  “Assault” was included at the ex parte and inter partes stages, but ultimately deleted from the interlocutory injunction granted by Louis Chan J and has also been dropped from the plaintiff’s witness statement, where the plaintiff specifically adopts Louis Chan J’s rephrased scope of the injunction.  Clearly it is no longer pursued.

(4)  Paragraph 12 of the ASOC expressly avers that the plaintiff (and his family) were terrified as “from 13 August onwards”.  This is repeated in paragraphs 41 and 52 of his witness statement.  This can only mean that the plaintiff and his family were not terrified by reason of the prior Alleged Wrongful Acts as pleaded.  

(5)  Although the ASOC was specifically amended to allege that the missed calls took place after the Ngai Attack, it is clear from the date and the timing that the 13 August missed call took place before the Ngai Attack.  More importantly, there is no evidence that the missed calls amounted to threats or unlawful acts or that the plaintiff was threatened by the missed calls. 

36.  As submitted by the defendant, intimidation and harassment are serious allegations which may have criminal consequences.  The plaintiff must be held strictly to his pleadings and the particulars given.

D.  THE LAW ON INTIMIDATION AND HARASSMENT

37.  There is not much dispute on the applicable legal principles. 

38.  The plaintiff has the burden of proof, which proof must be commensurate with the seriousness of the allegations.  For intimidation, the plaintiff has to prove:

(1)  The unlawful threat;

(2)  The intention to cause harm with the threat; and

(3)  Damage to the plaintiff.

39.  For harassment, there is the extra element of repetition or course of conduct.

40.  As to the requirement of “damage to the plaintiff”, Anthony Chan J had this to say in Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197 at paragraphs 66 to 68: –

“66. As regards the kind of injury or damage which may ground an action in tort of harassment, one can envisage that the harassment can result, at one end of the scale, physical injury and, at the other hand, mere humiliation. The correct balance has to be struck. Further, different persons can react differently to the same type of harassment. A mature and confident person may feel humiliated about a course of conduct, whereas a younger and more sensitive person may be affected with serious anxiety. However, a wrongdoer must take his victim as he finds him.

67. Under the UK Protection from Harassment Act, s.3, damages can be awarded as a civil remedy for anxiety caused by harassment. However, anxiety has not been defined in the Act.

68. I believe that the right balance has been struck in the above Act and I take the view that anxiety on the part of the victim, which has been caused by harassment, would satisfy the threshold for this cause of action.”

E.  THE BURDEN OF PROOF FOR ALLEGATIONS OF CRIMINAL ACTS

41.  The allegations by the plaintiff tantamount to allegations of criminal acts on the part of the defendant, in particular, the defendant is alleged to have engaged in “blackmail” in paragraph 15 of the ASOC.

42.  During the oral opening, the plaintiff’s counsel referred to Phipson on Evidence (19^th Ed) at §18-23, submitting that good character evidence ought not to be admissible in civil actions.  However, this ignores the fact that the plaintiff’s allegations against the defendant in this action are grave.  The principles Re H [1996] AC 563 are engaged, especially since the alleged torts amount to criminal misconduct.

43.  In this regard:

(1)  Re H at 586D-587A held that the more serious the allegation, the less likely it is that the event occurred, and hence, “the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability”.  Fraud is usually less likely than negligence.  Deliberate physical injury is less likely than accidental injury.  The more improbable the event, the stronger must be the evidence that it did occur before its occurrence will be established.  This provides a basis for this court to be “more sure” before finding the serious Alleged Wrongful Acts (as allegedly carried out upon the defendant’s instructions) in this case to be proved, when compared against less serious or trivial matters.

(2)  A similar principle is expressed in Hornal v Neuberger Products Ltd [1957] 1 QB 247 (cited at 586H-587A of Re H) at 266-267 per Morris LJ:

“Though no court and no jury would give less careful attention to issues lacking gravity than to those marked by it, the very elements of gravity become a part of the whole range of circumstances which have to be weighed in the scale when deciding as to the balance of probabilities.  This view was denoted by Denning L.J. when in his judgment in Bater v. Bater he spoke of a “degree of probability which is commensurate with the “occasion” and of “a degree of probability which is proportionate to the subject-matter.” 

In English law the citizen is regarded as being a free man of good repute.  Issues may be raised in a civil action which affect character and reputation, and these will not be forgotten by judges and juries when considering the probabilities in regard to whatever misconduct is alleged.  There will be reluctance to rob any man of his good name: there will also be reluctance to make any man pay what is not due or to make any man liable who is not or not liable who is.  A court will not be deterred from a conclusion because of regret at its consequences: a court must arrive at such conclusion as is directed by the weight and preponderance of the evidence.”

(3)  On a related note, the defendant’s good character evidence “is relevant both to his credibility and to his propensity, or lack of it” to engage in the Alleged Wrongful Acts: see Re Bunting Electric Manufacturing Co Ltd [2006] 1 BCLC 550 at §§48-55.  See, also Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, where at §626 Lord Scott stated as follows: –

“... The probability of these allegations being true must be judged on the evidence adduced in the case. But it must also take account of propensity. If such an allegation is made against a person with a record of involvement in forgery of fraud, the strength of the other evidence necessary to satisfy the balance of probability test is obviously less than would otherwise be required. Evidence of propensity must go into the balance. In the present case, however, there is no such evidence to go into the balance either against Mrs Wang or against Mr Tse. Evidence to a very high standard of cogency indeed is necessary before the court can be justified in finding either to be dishonestly involved in the conspiracy to promote a forged will.”

44.  The state of the plaintiff’s evidence and his credibility must accordingly be judged against the high standards set out in both Re H and Hornal.  The defendant and his wife’s testimony and their good character evidence must be given their due weight in the same context.  

F.  THE BACKGROUND AND THE RELATED ACTIONS

45.  Before discussing the credibility of witnesses, it is important to note the parties’ earlier relationships and the related actions as they form an important backdrop to the understanding of the evidence. 

46.  It is common ground that the parties knew each other.  The defendant and his wife were successful in their businesses and were sufficiently well off to afford investments of properties in tens of millions of dollars.  They used to play mah-jong with the plaintiff’s parents when the plaintiff’s father was alive.  Through the parents, the defendant and his wife then came to know the plaintiff, his brother Carson and his sister.  Through the plaintiff, they also came to know Mr Ngai, who was an estate agent by profession.  Mr Ngai acted as the plaintiff’s estate agent and sold properties belonging to the plaintiff and his family.  Mr Ngai was thus introduced to the defendant and his wife and they came to invest in properties introduced by Mr Ngai.  Even though they may not be close friends, there was no reason for the defendant and his wife to mistrust the plaintiff or Mr Ngai until the present dispute.

47.  Unknown to the defendant and his wife, the plaintiff was much closer to Mr Ngai whom he said was the godfather of his son born out of Madam Poon, his mistress.  He relied on Mr Ngai to look after Madam Poon when it was inconvenient for him to do so. It was Mr Ngai who helped Madam Poon to move into her flat in Riviera Garden so that she could be Mr Ngai’s neighbour in the same development. 

48.  In October 2014, Mr Ngai introduced the Kingswood Villas Property to the defendant and his wife.  He told them that any price below $30 million would be a good buy.  The defendant and his wife trusted Mr Ngai to do the negotiation and to sign the preliminary sale and purchase agreement.  The estate agent company was Wealth Trustful. The purchaser was Take Point, a company owned by the defendant’s wife.  The price was HK$28,560,000.  The defendant and his wife paid deposits amounting to HK$5,712,000.  They did not know that the vendors of the Kingswood Villas Property, Chi Wing and Law Oi Ying (“the head vendors”), were willing to sell the property for $19,000,000.  A confirmor, Cheerful Joy Investments Limited (“Cheerful Joy”), was interposed in between to purchase the property from the head vendors for $19,000,000 and to on-sell to Take Point for $28,560,000 making a quick profit of $9,560,000.  Neither did they know that the sole director and shareholder of Cheerful Joy was Madam Poon, the mistress of the plaintiff.

49.  The defendant and his wife only discovered the scam when an agent called the defendant’s wife in February 2015 to alert her to this.  The defendant’s wife immediately rang Mr Ngai and spoke to him on various occasions to find out if this was in fact a confirmor sale via Cheerful Joy and to inquire into the person behind Cheerful Joy.  Mr Ngai was clearly lying in these telephone conversations.  He pretended that it was another agent and that he knew nothing about a confirmor sale.  He also pretended that it was not possible to find out who was behind Cheerful Joy because it was an offshore company.  Finally, when it was no longer possible to deny the scam, he told the defendant’s wife that he was greedy and pocketed $680,000 (which he also admitted to the defendant at around the same time) and that the defendant’s wife could make a report to the Estate Agents Authority. But he did not tell her that the plaintiff’s mistress was the person behind Cheerful Joy.  And the defendant and his wife did not suspect the plaintiff at the time.

50.  At around the same time, there was another property transaction relating to the Ka Ming Properties.  Blissful Voice Limited (“Blissful Voice”), a company beneficially owned by the defendant and his wife, was the purchaser.  Again the estate agent was Mr Ngai and he had agreed to take up a 15% share of the purchase.  It was close to completion and Mr Ngai had failed to pay up his full 15% share.  Hence the defendant and his wife asked the plaintiff to help locate Mr Ngai.  The plaintiff helped to arrange for a sale of Mr Ngai’s 15% share by way of an agreement signed between the parties on 17 March 2015 (“the alleged Settlement Agreement”).  The sale and purchase of the Ka Ming Properties was completed on 18 March 2015.  The defendant and his wife later found out that Madam Poon was also the sole director of the confirmor in this transaction, one Hailey Ventures Limited (“Hailey Ventures”).

51.  Thus the defendant’s wife hired a private investigator to find out the connection between Mr Ngai and Madam Poon and the photographs taken by the investigator in early May 2015 showing Madam Poon and the plaintiff enjoying a holiday together in Vietnam was proof of Madam Poon’s connection not only with Mr Ngai but also with the plaintiff.  This led to the WhatsApp messages with Carson on 9 May 2015, in which the defendant asked for Carson’s help to talk to the plaintiff to ask Mr Ngai to return the money paid.  Carson arranged meetings, which included a meeting in 沙田帝都酒店 (Royal Park Hotel in Shatin) on the same day; and a meeting in the defendant’s office in Fotan on 30 May 2015.  The plaintiff declined to help the defendant or his wife.  The plaintiff claimed that Madam Poon was merely a victim duped by Mr Ngai into signing a number of documents.

52.  On the face of the contemporaneous documents relating to these two transactions (even without the admission of Mr Ngai as evidenced by the taped conversations between the defendant’s wife and Mr Ngai), there is no doubt that the defendant and his wife were defrauded.  The term used is “食價” ie the confirmor in between pocketed the difference.  The defendant is not saying that a defrauded victim is entitled to intimidate and harass.  The issue here is whether the plaintiff is a trustworthy witness when he said he was intimidated and harassed because of these two transactions.  If the plaintiff is lying in his evidence and is clearly a dishonest and unreliable witness, the court cannot possibly grant him the discretionary injunctive remedy that he is seeking. 

53.  Whether or not the plaintiff was party to this scam from the outset, given the plaintiff’s own dealings with and investments in property, there is no doubt that the plaintiff should be able to recognize a scam when he sees one.  This proved to be his nemesis.  He cannot deny this obvious truth.  Yet he tried to hold on to his pretence for as long as possible.  When he first gave evidence, he tried to dodge the question by arguing that the defendant and his wife were not deceived if the price for the properties was the market price.  For example, just before the mid-morning break on Day 2, the plaintiff was adamant that even as of this date (when he was giving evidence), he was of the view that the defendant and his wife had not been deceived.  He repeated this view a number of times, for example when he was asked why he refused to help the defendant and his wife when he was asked in the meeting in the Shatin hotel.  He kept pretending that it was necessary for further clarification or investigation.  However, as pointed out by the court to him on Day 2 after the lunch break, it was not a question of market price.  An agent has a duty to get the best price for his client.  An agent who interposes a confirmor in between to make a profit commits a serious disciplinary offence leading to suspension of his estate agent licence which was exactly what happened in this case.  Given the plaintiff’s experience and his relationship with the parties, if the plaintiff was really innocent as he claimed, he should have been very angry with Mr Ngai for asking Madam Poon to sign documents for him, and he should have taken up the matter with Mr Ngai to extricate Madam Poon even if he was not willing to help the defendant or his wife.  Instead, he helped Mr Ngai to sign the alleged Settlement Agreement, in which the defendant and his wife were further duped into paying Mr Ngai agency fees for the two transactions. 

54.  As a result of the fraud, the defendant and his wife commenced the Take Point Action on 12 June 2015 and later the Blissful Voice Action on 25 November 2015 (collectively the “Consolidated Actions”) against inter alios Mr Ngai, Madam Poon and their companies.  The plaintiff’s own case is that the Alleged Wrongful Acts were carried out in order “to affect the legal proceedings of HCA 1289/2015” (ie the Take Point Action).  He is suggesting that intimidation and harassment were intended to force the plaintiff to compensate the defendant and his wife so that the Take Point Action could be compromised.  However, the reverse is more likely to be true, namely the defendant and his wife had already commenced the Take Point Action and the plaintiff later commenced this action to pressurize the defendant and his wife into compromising the Take Point Action with Madam Poon and Mr Ngai.  This court is not asked to try the Consolidated Actions, but the inconsistency of the plaintiff’s testimony in this case with the story given in his witness statement for Mr Ngai in the Consolidated Actions (“WS”; ie exhibit P2) shows that it is impossible to know when, if ever, the plaintiff is telling any truth.

55.  There is a third related action.  The defendant and his wife refused to complete the sale and purchase relating to the Kingswood Villas Property after they discovered the scam.  However, shortly thereafter on 8 April 2015, the same estate agency company, Wealth Trustful purchased the property from the head vendors for $18,970,000 with completion as late as 1 April 2016.  The property was subdivided into twenty parts and allegedly sub-sold to different purchasers for around $2 million each.  The sub-purchasers do not appear to be genuine.  This immediately increased the apparent value of the shop from $18,970,000 to over $40,000,000 on paper.  The sub-sale agreements as produced in C5 evidence a lot of amazing similarities or co-incidences in using the same solicitor which is representing the plaintiff in this action and the same mortgagee, having similar addresses and/or directors.  At least one director Yeung Ngai Yin is said to be the plaintiff’s staff who also works for Tong Ka Ho, the plaintiff’s partner who in the plaintiff’s own words used to do shady deals (行古惑). This gave rise to the action commenced by the plaintiff Xie Li Xin (“Xie”) (the “Xie Action”) where Xie is suing inter alios the plaintiff, Mr Ngai and Tong Ka Ho for inter alia fraud and misrepresentation. 

56.  According to the plaintiff, Mr Ngai was fearful that his licence would be forfeited by the Estate Agents Authority and begged the plaintiff to start a money lending business.  Even though none of the plaintiff, Mr Ngai or Tong Ka Ho had any experience in such business, they told Xie that the company would be so successful that it could be listed.  The plaintiff said he approached Xie, a parent of a child in the same school as his daughter, because he learnt that Xie had just sold his company for US$2 billion.  The plaintiff induced Xie to pay more than HK$40 million to finance the mortgages of the twenty sub-sales of the Kingswood Villas Property.  The plaintiff claimed that he was no longer friends with Mr Ngai when the Xie action was commenced in mid-2017 and he has no idea where Xie’s money has gone.  He pretended to be a victim rather than an accomplice in the fraud involving the Kingswood Villas Property.  When it was pointed out to him that he must have known that these sub-sales were bogus and (as found in the interlocutory judgment of Deputy High Court Judge R Ismail dated 25 May 2018 in the Xie Action, having regard to the undisputed evidence and contemporaneous documents at that stage) that he assisted in the withdrawal of the monies after he allegedly sold his interest, he invoked the privilege against self-incrimination. 

57.  Similarly, this court is not asked to adjudicate on the Xie Action.  I cite this as example why the court cannot trust the evidence of the plaintiff.  It is just too much of a coincidence for the plaintiff to be once again innocently caught up in Mr Ngai’s second scam involving the Kingswood Villas Property without the plaintiff having taken any steps to extricate Madam Poon whom he alleged was a victim of Mr Ngai’s first scam.

G.  THE WITNESSES OR LACK OF THEM

58.  On the calling of witnesses, one important point is that the plaintiff’s claim for injunction is meant to protect not just himself, but also his family members and friends, including but not limited to Carson, Mr Ngai and his mistress Madam Poon.  It is pleaded that they were frightened as a result of the Alleged Wrongful Acts by the defendant or his Purported Agents.  The plaintiff referred to them frequently as part of the ‘material facts leading to and in connection with this Action’, and claimed that Mr Ngai and Carson were subject to the defendant’s disturbance, annoyance, and/or interference.  The plaintiff also produced a tape recording of telephone conversation between the defendant and Carson, the earlier 6 minutes of which was unfortunately missing.  The plaintiff is clearly expected to call at least some if not all of these people to be covered by the injunction sought.  Yet the plaintiff was the only witness who gave evidence for his claim.

59.  It is well established that a court may draw adverse inference against a party who has failed, without explanation, to call a witness whom he might be expected to call.  The defendant relies on Wisniewski v Central Manchester Health Authority [1998] PIQR P324, per Brooke LJ at P340, where the following principles were summarized:

“From this line of authority I derive the following principles in the context of the present case:

(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.” (emphases added)

60.  If Carson had been called, he would be able to explain why he started to record the 30 May Call some 6 minutes after the call had commenced.  But even more importantly, he would have been able to explain why he never told the plaintiff about it until January 2016 and why he never made any report to the Police.  If Carson had any reason to believe that the defendant meant to hire debt collectors who might threaten or harm his younger brother, he should have warned his younger brother immediately and should have advised him to call the Police.  Yet Carson did nothing of that sort and instead arranged a meeting at the defendant’s office that same evening after the call.  Further, according to the plaintiff’s evidence, there was a family meeting or family meetings in June/July to discuss what to do.  The court specifically asked the plaintiff whether he had spoken to Carson before applying for an injunction in order to prepare for the necessary evidence. Here it must be noted that Carson was covered under the ex parte and inter partes injunction orders and photographs of the school attended by Carson’s sons were said to have been sent by the Purported Agent(s); but he was eventually excluded by Louis Chan J.  Initially the plaintiff said he did ask Carson but Carson did not give him any tape recording “有問過Carson ，但係佢冇同我提過呢份[錄音]。”.  Later he retracted this and said he had not spoken to Carson or to any member of the family before applying for the interlocutory injunction.  In any case, it is inexplicable why Carson did not produce the tape at the time of the recording if he had any reason to think the defendant meant harm.  We are only provided with an explanation by the plaintiff under cross examination: “佢咁遲都唔攞出嚟，亦都係正正因為大家個關係，[ie, referring to the relationship with the defendant], 佢一路都唔想繼續惡化落去。”.  I agree if that were true, then there was no reason to produce the tape recording in January 2016 either.  The clear inference that the court can draw from the plaintiff’s failure to call Carson is that Carson knew the defendant never meant to hire any collection agent and he knew that the defendant’s outbursts were merely angry words that people would sometimes utter in the heat of the moment without any intention of carrying them out.

61.  Furthermore, if Carson had been called, he would be able to tell the court his reaction when he received the photographs of the plaintiff and Madam Poon taken during the Vietnam trip.  He would also have been able to tell this court how the plaintiff obtained screencaptures of Carson’s WhatsApp messages with the defendant, especially in circumstances where the plaintiff had clarified that he had not spoken to Carson or to any member of the family before applying for the injunction.  Again the clear inference that the court can draw from the plaintiff’s failure to call Carson is that Carson was never pressured or intimidated by the communications with the defendant or his wife or the receipt of the photographs as alleged in the ASOC.

62.  When cross-examined, the plaintiff alleged that that if Carson was asked to provide oral testimony, it would have helped his case. However, his explanation for not calling him as a witness was “因為呢單案已經好困擾，我唔想再搞到屋企人”. Given the seriousness of the allegations at stake, such explanation is neither credible nor acceptable.  In any event, Carson’s involvement would have been limited.  He was clearly a necessary witness.  In the circumstances, this court ought to draw negative inferences as indicated above.

63.  With respect to Mr Ngai, although he gave an affirmation for the purpose of the interlocutory injunction application, he did not give any witness statement in this case, despite the plaintiff’s clear reference that Mr Ngai would be providing further evidence, at paragraph 40 of his witness statement.  Even though the plaintiff claimed in his evidence that he was no longer on good terms with Mr Ngai since around June 2017, he was still on good terms with Mr Ngai at the time of the exchange of witness statements in June 2016.  Indeed, the plaintiff himself did provide the WS (exhibit P2) for Mr Ngai in the Consolidated Actions as late as July 2017. Thus, the absence of any witness statement from Mr Ngai clearly means that the Ngai Attack cannot be connected to the defendant (quite apart from the lack of pleading).  Neither can the court rely on any allegation that Mr Ngai was ever intimidated or harassed by the defendant.

64.  As for Madam Poon, it is not clear from the pleadings in what way she was intimidated or harassed. Apart from the taking of the “secret” photograph and the alleged “stalking” in public (which in any case cannot be part of the Alleged Wrongful Acts), none of the particulars of threat pleaded relates to her.  Neither is there any evidence that she was ever frightened or threatened.  Her role in the Take Point and Blissful Voice transactions shows that she is more likely to be an accomplice of a fraudulent scheme to defraud the defendant and his wife than merely a victim who has been duped to sign documents for the purpose of defrauding the defendant and his wife.  It is significant that in the Consolidated Actions, she has even counterclaimed in the name of Cheerful Joy for the profit in the sub-sale of the Kingswood Villas Property.  Even at the time of the interlocutory injunction, Louis Chan J had already noted the inconsistency of her stance with that of the plaintiff’s in this action.  This has never been explained.  I agree the court should not grant any injunction to protect her without having heard her explanation.

H.  PLAINTIFF IS NOT A CREDIBLE WITNESS

H1.    Overview

65.  In evaluating witnesses’ credibility, as summarised in Chau Suk Wah v Chau Hau Tung [2018] HKCFI 1749 at §29 per Deputy High Court Judge Marlene Ng (as she then was), it is necessary to consider:

(1)  The totality of the evidence;

(2)  A lie does not necessarily prove the opposite of the lie, even though, depending on the subject matter and its significance in the case, it may indicate a consciousness on the part of the witness that the truth would not have assisted his case, or may amount to evidence that is corroborative of other evidence;

(3)  Inherent probabilities aided by contemporaneous documents/records that are not disputed or undisputable, circumstantial evidence tending to support one account rather than the other, and overall impression of the character/motivation of the witnesses; and

(4)  The intrinsic value of their evidence upon considering the totality of their evidence against the chronology of events, the available documentary evidence and the inferences based on inherent probabilities and/or undisputed facts.

66.  One other important factor in evaluating the plaintiff’s evidence is the principle cited in Section E above, namely, the more serious the allegation, the more compelling the evidence should be.

67.  I agree that, overall, the plaintiff was an extremely poor witness.  There were many long pauses (sometimes lasting as long as half a minute) where he was simply unable to decide how to answer the question.  There were many instances where he denied having said something and his recorded evidence had to be played back to him to prove that he has said what he later disowned (我諗我頭先噏錯嘢). He had to retract or contradict his own evidence quite often.  And on quite a number of instances he had to decline to answer the question by simply saying he could not answer “唔識答” “解釋唔到”.  There were at least 5 separate occasions when he invoked the privilege against self-incrimination “我選擇唔回答呢個問題”, with respect to matters put to him that he would have been expected to flatly deny.

H2.  Little sign of being intimidated or harassed

68.  In considering the inherent probabilities, the overall impression of character and motivation, it is significant that the plaintiff’s conduct and behaviour were at odds with and contrary to what one would normally expect of a victim of intimidation and harassment.  One would expect a victim to be frightened.  However, on his own pleading and witness statement (see paragraph 35(4) above), he was only terrified as from 13 August 2015, thus, not at the time of the Alleged Wrongful Acts or his dealings with the Purported Agent(s) in June.  Indeed, this was borne out by his responses to and his exchanges with the person he called the “Money Receiver”.  For example, he even invited the Money Receiver to send documents to his mother’s residence.  He volunteered his movements and invited the Money Receiver to his mother’s place for discussion upon his return from his holiday.  He tried to make arrangements to meet the Money Receiver.  He took the initiative of calling the Money Receiver on 21 June 2015 or sending WhatsApp to the Money Receiver on 22 June 2015.  When he was asked about this, his explanation was “你仲要扮到好驚，[...] 佢咪會更加捉心理囉 [...] [話]埋比你聽哩度係我啊媽屋企, 等佢知難而退”.

69.  It is also very odd that he should keep asking the Purported Agent(s) for the return of the photographs relating to Madam Poon and his son but there is nothing in the evidence which shows that the plaintiff has ever been shown any such photograph.  The photographs in the trial bundle are all digital, hence there is no point in “returning” digital photographs.  More importantly, none of the digital photographs in fact show Madam Poon and the plaintiff’s son.  When the plaintiff was cross-examined about this, he suddenly said for the first time that there was an earlier call (on around 18 June 2015 ie before the WhatsApp messages on 19 June 2015) which he had not even told his lawyers when he was threatened: “佢有講到，佢有我個仔啲相，同埋會淋油放火” [Day 3, after lunch].  If true, this would have been extremely serious and should clearly have been pleaded and referred to in his witness statement.  When asked why he never disclosed such a threat before, his explanation that he did not believe such threat would be carried out ie “淋油放火，我覺得佢唔會做嘅” is simply too bizarre for belief.  The plaintiff was holding back and clearly not telling the whole truth in his evidence and it is simply impossible for the court to grant a discretionary injunction given the plaintiff’s unwillingness to come clean. 

70.  Furthermore, if the plaintiff had truly received such a threatening call on around 18 June 2015 and thought that it was from the defendant’s Purported Agent(s), there is no reason why the plaintiff did not mention this in his WhatsApp messages to the defendant or the defendant’s wife on 19 June 2015.  Similarly, it was very strange for the plaintiff, as alleged victim of harassment/intimidation, to later send a message to each of the defendant and the defendant’s wife on 21 June 2015 to say “今天是父親節，祝你父親節快樂！” (exhibits P5/P6).

71.  Another very odd behaviour is that the plaintiff was most reluctant to make a report to the Police.  It is indeed remarkable that when the plaintiff was communicating with the Money Receiver and trying to arrange a meeting with him or to invite him to his mother’s residence for a discussion, he did not at the same time make a report to the Police so that the Police would be able to immediately arrest the Money Receiver for blackmail.  It is equally remarkable that when the defendant’s solicitor kept asking the plaintiff’s solicitor as to whether a report was made to the Police, the response was not very forthcoming.

72.  In particular, upon discovering the 30 May Call, the plaintiff’s solicitors (“H&N”) wrote in their letter of 20 January 2016 that “there may be criminal elements indicating that your client may have committed criminal offences.  We are in the course of seeking our client’s instructions to consider whether the evidence disclosed in the captioned action be reported to the Police.”  Under cross-examination, the plaintiff clarified that this was indeed the first time H&N had advised him to report the alleged harassment/intimidation to the Police.

73.  No police statement was ever disclosed in discovery.  It was only when the plaintiff was specifically asked in the witness box, the plaintiff then revealed that he did make a report to the Police sometime in June 2016 (the “Police Statement”, exhibit P1).  Upon reviewing the Police Statement dated 13 June 2016, it becomes clear why it was never disclosed.  The statement is very short, barely 3 pages in wide spacing.  Most of it is a summary of the Take Point Action dispute, and how the HK$16 million sum demanded by the Purported Agent(s) is calculated.  None of the Alleged Wrongful Acts were set out, let alone any mention of the alleged 18 June 2015 phone call, or the Ngai Attack.  Noris it mentioned that the defendant’s wife had engaged a private investigator who had taken photos of him and Madam Poon in Vietnam (and whose details have already been disclosed by the defendant to the plaintiff by that stage of the action).  Only the 30 May Call was briefly mentioned by the plaintiff on the third page of his Police Statement.  He claimed that certain contents of the call supported the possibility that the defendant intended to cause the plaintiff harm, and thus caused him fear ie “令我十分害怕”.  He claimed that after obtaining legal advice, he decided to report the matter to the Police.  But in fact he did not do so immediately.

74.  It should be noted that, Carson himself did not make a police report to support the plaintiff’s interpretation of the 30 May Call.  Furthermore, the 30 May Call was only revealed by Carson to the plaintiff around five months after the ex parte injunction order was obtained.  There was no basis for the plaintiff to claim that he was “十分害怕” due to the contents of a call which he was not privy to, and only reported to the Police some ten months after this action had already commenced.

75.  Furthermore, the plaintiff had received legal advice from H&N to report the 30 May Call to the Police since as early as January 2016.  It is incredible, for a person claiming to have been “十分害怕”, to only report it five months after receiving such legal advice.  It did not make sense for the plaintiff not to make a report to the Police at the time of the Alleged Wrongful Acts (if he was truly scared as a result) and yet make a report when there was no more intimidation and harassment which, according to him, ceased after the grant of the interlocutory injunction.

76.  If the plaintiff had really been scared as a result of the Alleged Wrongful Acts, it would not be difficult to mention some of the threats that stuck to his mind.  Yet he left out all such details in the Police Statement.  The only particulars mentioned was in the 30 May Call which was not even made to him, and which Carson did not even inform him about at the time.  Most importantly, the 30 May Call was not even pleaded, not even in paragraph 5 relating to Carson.

77.  In light of the above, I agree the only sensible conclusion is that the plaintiff was not “十分害怕” as claimed in the Police Statement (exhibit P1).

78.  The plaintiff’s various explanations for his failure to make a report earlier were also incredible.  At one stage he said “收數好似唔犯法” [Day 4 morning].  He also said it was all a misunderstanding “我都解釋咗好多次, 我都係覺得一路到尾都係一場誤會” [Day 2 after lunch and Day 4 morning].  He said a number of times he did not want the defendant to bear criminal liability “好糾結 [...] 我都係覺得唔想何生會有刑事責任” [Day 2 afternoon; Day 4 before morning break].  I agree that this is quite disingenuous.  When cross-examined, the plaintiff claimed that he no longer considered the defendant a friend by the time of the Alleged Wrongful Acts, ie from mid-June 2015 [Day 2 morning].  The plaintiff had also commenced litigation against the defendant by reason of his ex parte injunction in this action in August 2015.  If there were truly threats concerning his children and Carson’s children as well as other members of his family, not to mention his new born son, it is totally inexplicable for him not to make a report to the Police at the time.

79.  Accordingly, the plaintiff had no reason not to have involved the Police at an earlier stage.  If he had done so, he would have demonstrated that he was fearful for himself and/or his family and had done something to protect themselves (especially in light of the alleged family meeting in June 2015, where the plaintiff claimed that he felt his family was detrimentally affected by the Purported Agent(s)’ acts).

80.  Clearly the Police Statement was merely a tactical step carried out under legal advice, as a means of improving the presentation of the plaintiff’s case against the defendant. The late preparation of the Police Statement betrays the plaintiff’s true sentiment in relation to the Alleged Wrongful Acts, ie he never truly felt distressed by them.  He might have been distressed as a result of his family learning of his affair and the new born son (as indicated in his call with the Purported Agent(s) ie “依家就係你地知道我個仔，我淨係想保住個仔”). In the witness box, he explained [Day 4, before morning break], “因為成件事個矛頭由佢第一日開始都係追潘麗珊，佢一路都係搵潘麗珊，所以我最擔心係潘麗珊”, and that “因為嗰陣時淨係好驚個仔同埋潘麗珊因為呢件事會曝咗光”.  However, that is not the kind of distress as a result of the Alleged Wrongful Acts particularized in the ASOC.

81.  Taken together, the plaintiff’s tardiness in making a report to the Police shows that he suffered no damage and was not threatened in the same manner as a typical victim of intimidation/harassment would have been.

H3.  Clear instances of untruthfulness on the part of the plaintiff

82.  There are many instances where the plaintiff was clearly not being truthful and changing his evidence as he went along.  For example, the plaintiff clearly lied about his connection with the estate agent company Wealth Trustful.  Initially, under cross-examination (Day 2, before mid-morning break), the plaintiff claimed that he had no involvement or connection with it.  When it was pointed out that his wife was a 50% shareholder of Wealth Trustful (a fact which is pleaded by the defendant in the Blissful Voice Action), the plaintiff inexplicably paused for a long time before confirming that his wife was, indeed, a 50% shareholder of the company. He added that he was not sure whether she has sold her shares.  When he was cross-examined on why it took him so long to remember this fact, the plaintiff claimed it is not an important piece of information.  This is a surprising response because Wealth Trustful is still being sued in the Consolidated Actions.  Upon further questions from the court, he confirmed that there is a possibility that she is still a 50% shareholder to this day. 

83.  Under re-examination, in an obvious attempt to salvage the plaintiff’s answer (in order to distance the plaintiff from Wealth Trustful), the plaintiff’s counsel asked the DARTS recording to be played back to the plaintiff and asked the plaintiff to clarify what he meant by「我都係聽余大狀」.  The plaintiff then explained「我都係聽余大狀講我先醒起係咪我太太喺盈信裡面有股東之一」.  The plaintiff tried to correct his earlier testimony by saying that he was not sure whether his wife had held shares in Wealth Trustful.  After further clarification, his final answer was “... 到目前為止，我都唔能夠確認究竟我太太係幾時持有嗰啲股份，而家仲係咪揸住啲股份，我都冇去求證過 [...] 因為個糾紛係喺潘麗珊同蟻樂祺嗰度。跟住到我畀人騷擾，到有人畀比人打，我係冇去考慮過盈信呢件事。” [Day 4 afternoon].  This means his uncertainty was as to the timing when and not whether his wife ever held shares in Wealth Trustful.  There is no way he can disown what he said earlier, because at least twice he said on the morning of Day 2: “[...] 盈信已經同我係完全冇關係 [...] 所以根本唔關事”; “我太太賺錢, 我唔會清楚架” when he was asked about the agency fees paid by the defendant and his wife to Wealth Trustful.

84.  The plaintiff was unwilling to give a straight answer to such a simple fact even though the person in question is his wife (with whom he has two daughters); and the company in question is a common and central defendant in the Consolidated Actions.  As can be seen later from the witness statement he has given in the Consolidated Actions, the plaintiff clearly has a much bigger involvement in the two transactions and he wishes to hide his connection to the estate agency company Wealth Trustful.

85.  Another example of the plaintiff retracting his own evidence was when he was asked why he declined to help the defendant and his wife [Day 2 before mid-morning break].  He said there were two reasons (1) He had a debt of gratitude to Mr Ngai (“有恩於佢”); and (2) he could not be sure if the defendant had been duped in relation to the price (“咁當其時係咪真係有食價呀，好多嘢都未清楚”). 

86.  At this juncture, when it was pointed out to the plaintiff that in his affirmation evidence (in relation to his injunction application) he denied having said “有恩於佢” at the 9 May 2015 Meeting, he responded, “我諗係咪同我律師溝通既時候呢度有搞錯咗呢，因為我一直都係深信佢係有恩於我”.  Yet soon after that he corrected himself yet again, saying, “回想番成件事，佢點樣照顧潘小姐同我個仔喇 [...] 所以我而家有個咁嘅感覺出咗嚟”, and confirmed that his affirmation evidence remained correct but his oral testimony was wrong.

87.  Thus he had to revise his earlier oral testimony to say that he had only one reason for refusing to assist the defendant and his wife, namely that, at the time, he “唔清楚係咪有呢個差價”.  His view on this was that the defendant and his wife were never deceived.  He said, “喺個物業交易上面佢 [referring to the defendant and his wife] 冇比人呃架”.  But as said in paragraphs 52 and 53 above, there can be no doubt the plaintiff must have known simply by looking at the preliminary sale and purchase agreements that the defendant and his wife were indeed duped as to price.

88.  He was caught flatly lying in relation to his involvement in the Consolidated Actions.  Initially he tried to distance himself by saying he did not help Madam Poon with the Consolidated Action as he was not sure if he would be allowed to help.  The plaintiff further claimed that he never once read the documents from either proceedings, [Day 3 before mid-morning break] “我唔想睇”，“我唔知我可唔可以睇”.  He confirmed that he never clarified with the solicitors as to whether he would be allowed to read the documents or help Madam Poon.  He was unable to explain why he did not want to do so: “解釋唔到，就係唔想睇。”.  He also denied that he helped Mr Ngai.  He claimed that he did not want to help Mr Ngai.  He categorically denied having read any documents in the Take Point Action or in the Blissful Voice Action.  But this is contrary to his own witness statement.

89.  Further, the plaintiff’s WS (exhibit P2) in the Consolidated Actions contradicted his oral testimony in the witness box.  According to the WS (at paragraphs 3, 5, 6, and 8 thereof), the plaintiff read all of the documents and even cross-checked against the list of documents.  He thoroughly understood the two transactions.

90.  According to his WS, it was by being equipped with such information, that he was able to help liaise with the defendant’s wife and negotiate the alleged Settlement Agreement.  Without having intimate knowledge of the relevant documents, he would not have been in any position to claim that the defendant and his wife were lying in the Consolidated Actions.

91.  Such assertions in the WS directly contradicted his oral testimony under cross-examination.  When these contradictions were pointed out to the plaintiff, he decided that his oral testimony in this trial was correct; and that his written statement in his WS was erroneous.

92.  As a result, he conceded that the defendant and the defendant’s wife were not telling lies in those two actions (as asserted at paragraphs 32, 34 and 41 of his WS). The plaintiff accepted that the defendant and his wife were both deceived by Mr Ngai as to the price.

93.  The plaintiff’s explanation as to why his WS contained wrong assertions about the defendant and his wife is that he had earlier trusted Mr Ngai’s representation that “信錯咗嗰啲摸貨係合理嘅”.  Yet, when asked at what point in time he realized that the confirmor arrangement was unreasonable (“喺邊段時間突然間你如夢初醒”), he responded after a long pause, “我唔識答”.

94.  Similarly, when he was asked why he claimed earlier in his oral testimony that he did not read any of the conveyancing documents by the time of the May 2015 Meeting, whereas his WS said that he had already reviewed such documents before the alleged Settlement Agreement was signed, he again said: “我唔識答”.  The only conclusion is that he is lying so much it is impossible to tell if any version can be trusted.

95.  He flip-flopped between admitting or denying that the defendant and his wife were duped.  When asked about the May 2015 Meeting, he asserted inter alia that “喺個物業交易上面佢 [referring to the defendant and his wife] 冇比人呃架”.  This was a view he adopted not only at the time of the meeting.  He maintained the same sentiment during trial when this line of questioning was first posed to him.

96.  Yet, near the end of his evidence, he made a radical about-turn.  After admitting that he realised Mr Ngai was in fact a deceiver, he said, “當然我見到蟻生佢 [Mr Ngai] 喺入面講咗好多大話喇 [...]何生何太係有比人呃既” (emphasis added) (Day 2 before mid-afternoon break).  When he was asked why he flip-flopped between admitting or denying the defendant and his wife were deceived, he said “個時空可能我搞唔清楚 [...] 如果妳今日問我，係咪何生、何太當其時畀人呃嘅話，我會話係喇。” [Day 4 before mid-afternoon break].  All this is smokescreen.  As explained in paragraph 53 above, given the plaintiff’s experience in property investments, he must have known very well that the defendant and his wife were duped in the two transactions in buying at a much higher price than what the head vendors were willing to sell.  They suffered loss in terms of the profit that went to Cheerful Joy and Hailey Ventures as well as the higher estate agency fees that should never be paid to a deceiving agent. 

I.   THE CREDIBILITY OF THE DEFENDANT AND HIS WIFE

I1.     Overview of the defendant and his wife as witnesses

97.  The first point to note about both of them is their good character.  As stated in Section E above, good character means lack of propensity to do criminal acts.  They have been doing successful and substantial businesses for decades.  Clearly they are people who value their reputation.  In addition to their demeanour in court, the court is entitled to look at their overall conduct and behaviour at the time.  For example, when they discovered that they were defrauded by Mr Ngai, they approached the plaintiff for help.  When they discovered the plaintiff might also be implicated, they sought help from the plaintiff’s mother and brother.  When they got Carson’s assurance that he would shoulder all responsibility if it was proved that his brother was involved, the defendant and his wife accepted Carson’s word.  When they were told by a third party the plaintiff had a relationship with Madam Poon, they initially found that hard to believe and they took the precaution of hiring not just any private investigator but a reputable investigator with previous awards.  They relied on lawful means to recover their loss by commencing legal action against Mr Ngai, Madam Poon and their related companies on 12 June 2015.  They made a report to the Police so that the Police could investigate themselves to prove their innocence (this can be contrasted with the plaintiff’s reluctance to make any report to the Police until long after the event; and even then, his Police Statement is severely defective, lacking in particulars as expected of a victim of harassment).  They made reports to all relevant authorities they could think of, namely the EAA and the ICAC.  These are steps that the court would expect responsible citizens to take.

98.  I accept that the defendant and his wife are both credible and consistent witnesses.  They freely admitted when something was not within their knowledge or recollection; and where their answers were categorical, they were provided under the plaintiff’s counsel’s examination with immediacy and confidence, and such answers are well supported by their witness statements, affirmations, or contemporaneous documents. There is little contradiction, and any inaccuracies were of a minor nature, to be expected when honest witnesses are giving evidence to the best of their recollections of matters that happened some years back. 

I2.  Cross-examination of the defendant and his wife

99.  The plaintiff’s counsel’s line of cross-examination, as means of discrediting the defendant and his wife’s evidence, can be grouped into the following:

(1)  Their TransAKT business was suffering a loss in recent years.

(2)  They did not complete the Kingswood Villas Property transaction because of inability to obtain a mortgage.

(3)  They knew all along that the Kingswood Villas Property transaction was subject to a confirmor arrangement.

(4)  They were upset and angry at the plaintiff.

(5)  They were selective in their disclosure of material provided by the private investigator, as a more “complete” disclosure would have revealed the same material as those sent by the Purported Agent(s) to the plaintiff in mid-June 2015.

(1) TransAKT; and (2) Mortgage

100.  It is not clear why the loss of TransAKT in recent years has anything to do with this case. 

101.  As to the reasons for not completing the Kingswood Villas Property transaction, first, when the defendant and his wife discovered the fraud and realized that the confirmor Cheerful Joy (and whoever behind it) was making close to $10 million over a few days, it was totally understandable for them to refuse to be taken as fools and refuse to complete.  Secondly, even the plaintiff admitted in his evidence that the defendant and his wife were financially capable of investing or buying properties such as the Kingswood Villas Property.  Thirdly, it is clear from the defendant’s evidence that his main business was his 30-odd years old business manufacturing furniture for sale to the United States to big corporations such as Walmart, with payment by Letter of Credit and with no need for debt collectors.  There is absolutely no suggestion that their other businesses (apart from TransAKT) were not doing well or that they did not have enough savings to complete the Kingswood Villas Property if that was their wish.

(3) Their knowledge of the sub-sale/confirmor arrangement

102.  As the defendant had admitted, he left the sale and purchase of the Kingswood Villas Property to be handled by his wife.  When the defendant’s wife was cross-examined on how she missed the fact that the agreement she signed was headed “Sub-Sale Agreement”, she answered that her then solicitors Messrs Wong & Poon (“Wong Poon”) did not explain the document to her when she signed it, and she said that this point was in any event raised in “另外嗰兩單case” [Day 6, before mid-morning break] ie referring to the Consolidated Actions as she clarified under re-examination (“就係我同蟻 – 告蟻生嗰兩單case，一單就係for鋪位，C68個鋪位同埋另外嘉明嗰個鋪 – 嗰個工廠大廈囉”) [Day 6, before mid-morning break].  She also clarified, under re-examination, that the only Wong Poon representative who was present when she signed the agreement was a clerk and she was asked to sign other documents at the same time [Day 6, before mid-morning break].

103.  As submitted by the defendant, it is in any event unclear what the plaintiff intends to achieve with this line of inquiry.  The plaintiff seems to be suggesting that the defendant and the defendant’s wife are lying because (contrary to their witness statements) they actually knew about the confirmor arrangement, and the plaintiff’s role as a potential co-conspirator, from as early as February 2015.  

104.  First, it is clear from the transcript of the telephone conversations between the defendant’s wife and Mr Ngai that the defendant and his wife only learnt about the confirmor or sub-sale when the defendant’s wife was tipped off by another estate agent Mr Cheung.  Secondly, if the defendant’s wife had known early on that the plaintiff was a potential culprit, there was little reason for her to ask the plaintiff to help by (for example) acting as the negotiator/middle-man with respect to the alleged Settlement Agreement.  Thirdly, there would also be no reason for the defendant’s wife to delay hiring the investigator until 26 March 2015.    

105.  In response to the query of when she started suspecting the plaintiff, the defendant’s wife said that after the “告密嘅朋友” told her on 18 March 2015 about the secret relationship between the plaintiff and Madam Poon, “二奶嘅關係，其實我哋都係唔係好信，我哋先至搵私家偵探”, and the suspicion were confirmed after seeing the photos of the plaintiff and Madam Poon on their Vietnam trip [Day 6, after mid-morning break].  Similarly, the defendant was not yet upset with the plaintiff during the time of the alleged Settlement Agreement as there was no evidence tying the plaintiff and Madam Poon together [Day 5, before lunch].  I agree that her evidence as to the timing and sequence of events is accurate and reliable.

(4) Their feeling towards the plaintiff

106.  When the defendant and his wife were asked if they were upset or angry with the plaintiff, they both frankly admitted that they were.  Indeed, I agree this would only be natural. They had thought that the plaintiff was their friend and was helping them with Mr Ngai, given that: (1) he had acted as the negotiator/middle-man with respect to the alleged Settlement Agreement; and (2) he had denied knowing Madam Poon when she was actually his mistress.  However, when they found out who Madam Poon was, he had refused to help them by asking Madam Poon to go to the Police to give evidence against Mr Ngai.

107.  The defendant’s explanation of the 30 May Call was entirely credible and natural.  He immediately drew attention to the fact that the context of the recording of the 30 May Call was important.  He said that Carson “一開始佢激嬲咗我” [Day 5, after lunch].  The defendant added: “我好嬲 [...] 估唔到我同Carson傾電話嘅，佢錄咗我音 [...] 如果我知道我同Carson傾電話佢錄我音，我肯定唔會 – 唔會講呢啲說話” [Day 5, after lunch].  The defendant then further explained under cross-examination: “我從來冇搵過收數公司 [...] 我嘅生意冇收數呢樣嘢嘅概念 [...] 嗰陣時係好衝動而講出黎 [...] 係Carson講收數公司先，唔係我講先。因為之前嗰六分鐘 [...] 佢一路叫我搵收數 – 你搵收數佬冇用㗎，係咪先? [Day 5, after lunch]”, and “佢應該錄我就錄咗我，唔應該錄嘅唔(就)錄 [...] 我覺係唔係好公平咁樣，因為我哋兩個男人之間講電話，係咪先，追落去，乜都講 [...] 佢 (Carson)一路講 [...] 你搵收數佬收蟻生都冇用嘅，因為佢冇錢 [...] Carson仲講佢哋做呢啲咁嘅係投資 – 可以講係投資一方，叫我接受現實 [...] 我係同Carson傾偈啫，我當佢一個朋友傾偈 [...] 好勞氣咁講嘅 [...] 一般講嘢係咁講架喇，係咪先 [...] 因為我做嘅生意，我從來未搵過收數佬，呢個肯定嘅” [Day 5, after lunch].  In response to who the two “契弟” were, the defendant answered one was Mr Ngai, the other was the plaintiff, as the defendant was “怒氣沖沖”, therefore “衝口而出吖嘛，勞氣嗰陣時講嘅嘢啫”.  The defendant further said that “我只係講講，係衝口而出，我絕對冇呢個心” [Day 5, after lunch].

108.  It is also of great significance that, at the end of the 30 May Call, Carson assured the defendant by saying: “咁我孭上身囉，如果你查到佢有份，我孭上身囉”.  As explained in the defendant’s witness evidence, this was what gave him reason to calm down.  The defendant even said in reply, “OK喇，呢句話說得架喇，我自己查，你孭上身”.

109.  Furthermore, it was also after this 30 May Call that the defendant, Carson, Mr Ngai and the plaintiff met at the defendant’s wife’s office in Fotan.  Again, the plaintiff has put forward noevidence with respect to what transpired at that meeting.  By contrast, the defendant repeated that Carson continued to assure him that “if Thompson ever received any money, or had a role to play in the wider conspiracy, Carson would himself be personally responsible for all of [the defendant’s] loss”.

110.  The fact that Carson made these assurances to the defendant is important in the context of the interactions between him and the plaintiff at the time.  When the plaintiff’s counsel asked the defendant whether, on 30 May 2015, he thought the plaintiff was involved in the misconduct, the defendant immediately responded that he did suspect the plaintiff, but “佢大佬 [Carson] 都有表過態 [...] 如果佢細佬 [the plaintiff] 有做嘅，佢將條數孭咗上身” [Day 5, after lunch].  The plaintiff never put forward evidence to say that such assurances were not made or that Carson was forced by the defendant or the defendant’s wife to make them.

111.  It can also be observed that there is no clear connection between the defendant or his wife being upset with the plaintiff and the timing of the Alleged Wrongful Acts.  The plaintiff can only point to evidence that they started suspecting him between the time when they discovered his relationship with Madam Poon from the defendant’s wife’s “告密嘅朋友” ie after 18 March 2015, and were upset by May 2015.  However, by the time of the defendant and his wife’s last recorded interactions with the plaintiff and Carson on 30 May 2015, they would have been comforted by the fact that Carson gave his assurances.  The fact that neither the plaintiff nor the defendant recorded any further interactions between the defendant and his wife with the Law family from 1 June 2015 onwards suggests that they were, instead, squarely focused on pursuing the known perpetrators ie Mr Ngai and Madam Poon[1]. 

112.  In light of the above, I accept that the defendant and his wife were not the kind of people to resort to criminal tactics when being upset.  The answers by the defendant’s wife when she was asked about this at the end of her cross-examination is very telling. She repeatedly said they were rational people; that even if she hired a debt collector, she still needed to ensure there was sufficient evidence against the debtor; and there was no need for them to do something like that in any event.  It is also important to note at exhibit P6 on page 2, the defendant’s wife had already told the plaintiff that he was mistaken and she had not hired any debt collector.  If they had really hired the debt collector to frighten the plaintiff, the point would be to let the plaintiff know that, instead of denying that when asked.

(5) Private investigator

113.  Finally, if the plaintiff has any reason to believe that the private investigator had given the defendant or his wife more than what has been disclosed, the plaintiff could have taken out a non-party discovery application against the private investigator company in the same way as the plaintiff had done against the defendant’s wife. 

114.  In any event, the evidence under cross-examination of the defendant and the defendant’s wife’s is all clearly in line with the affirmations they have made on 23 March 2017, in particular, on matters related to the malfunctioning of their mobile telephones and their recollection of what they had and had not received from the investigator. 

115.  It is hardly convincing for the plaintiff to mount an argument that the defendant or his wife were making selective discovery to favour their case (which both had denied under cross-examination), based on certain statements made in the defendant’s list of documents or certain clauses in an engagement contract which is clearly based on a template.   

116.  There is also no evidence to suggest (as implied by the plaintiff’s counsel’s queries) that the investigative agency was willing to take part in any illegal activity.  Such activity would be contrary to the terms of engagement with the defendant’s wife in any event. 

I3.  Conclusion as to the credibility of the defendant and the defendant’s wife

117.  Clearly, the defendant left much of the follow up and paper work to his wife.  This is an important qualification of the defendant’s testimony, which he has admitted throughout his witness statement, that is to say, he relied heavily on his wife for matters relating to the Kingswood Villas Property transaction, including the process of investigating the culprit behind the conspiracy.  There were only a few isolated incidents where his wife did not participate. 

118.  Hence, in case of small discrepancies as to timing, particularly pertaining to his comparatively less direct knowledge of the progress of the investigation against Mr Ngai, Madam Poon and/or the plaintiff between February to May 2015, the recollection of the defendant’s wife is to be preferred to that of the defendant.

119.  But in general both their evidence was consistent with contemporaneous record, in particular the transcripts of the conversations and with the witness statements.  I accept their testimony that they have never hired any debt collector, let alone any person(s) to carry out the Alleged Wrongful Acts.

J.  CONCLUSION AND DISPOSITION

120.  Quite apart from the credibility of the defendant and his wife, in the light of the plaintiff’s poor performance as a witness, the odd behaviour or conduct at variance with a victim of intimidation or harassment, and the disparity between the pleaded case and the evidence, I agree that the plaintiff’s evidence should be rejected in total.  In its presented state, it is nowhere near “cogent” or “strong” as required bythe standard of proof under Re H or Hornal (Supra).  Accordingly, I find that: –

(1)  The plaintiff has failed to prove that he was threatened or has suffered any damage by reason of the Alleged Wrongful Acts;

(2)  The plaintiff has failed to prove that any other person apart from the plaintiff was threatened or suffered any damage as a result of the Alleged Wrongful Acts; and

(3)  In any case, there was no course of conduct or sufficient repetition, when there were only 3 instances of Alleged Wrongful Acts in the course of June to August 201.  In particular, the first 2 instances are over a short period of time on 19 and on 21 June 2015, and one of these was actually a call initiated by the plaintiff himself.

121.  Given the plaintiff’s failure to establish Issue 1 (see paragraph 2 above), there is no need to deal with the remaining two issues.  Even if it is necessary to consider Issue 2, it is self-evident from the survey of evidence in section I above that there is no basis to say the defendant caused the Alleged Wrongful Acts to be carried out.

122.  In this regard, it is important to point out a few oddities, and material ambiguities with respect to the plaintiff’s case on the remaining issues. 

123.  Firstly, the plaintiff’s counsel submitted that the Alleged Wrongful Acts must be caused by the defendant because the amount demanded was $16 million which is approximately the amounts claimed in the Consolidated Actions.  However, the plaintiff has repeatedly said that the $16 million was based on the claim in the Take Point Action.  He has never said that the Blissful Voice Action was relevant.  This is his evidence at the interlocutory stage, in his witness statement and even in his Police Statement (exhibit P1).  Yet this is clearly wrong as the only claim in the Take Point Action is for the return of the deposit of $5,720,000, and not $16 million.  It remains unclear why the Purported Agent(s) claimed the $16 million sum.

124.  Secondly, the plaintiff claims that the debt collector or Purported Agent(s) (which he retitled as “Money Receiver” on his phone contact) was/were sent by the defendant.  Yet as early as 19 June 2015 7:16 pm (see exhibit P6 p.2), the defendant’s wife already denied it.  However:

(1)  In light of the defendant’s wife’s denial, the plaintiff ought to have (but never) queried the “Money Receiver” if he/they were truly sent by the defendant or his wife. 

(2)  Logic would dictate that if the defendant or his wife had intended to hire a debt collector to collect a debt from the plaintiff, then either of them would have simply admitted to the plaintiff that they engaged such agent, and that the plaintiff should simply comply with his/her demands.  The defendant’s wife’s denial of any connection to the Purported Agent(s) would inevitably frustrate the debt collection process. 

(3)  Logic would also dictate that the plaintiff should use the defendant’s wife’s denial to confront the debt collector.  Had he done that, the debt collector could have stopped his action, and the present litigation could have been avoided.  Instead, the plaintiff continued to negotiate with the debt collector without mentioning the defendant’s wife’s denial at all.   

(4)  Despite the plaintiff being aware that none of his further WhatsApp messages under exhibits P5 and P6 reached the defendant or the defendant’s wife (due to the single grey ticks under them), the plaintiff did not take any more active steps to clarify the identity or the authority of the Purported Agent(s) with the defendant or his wife or indirectly through his other family members.

(5)  In short, the plaintiff’s entire story does not make much sense.

125.  Thirdly, with respect to the 30 May Call, the plaintiff claimed in his witness evidence that the defendant had “admitted” engaging certain people to collect debts against him. In the witness box, the plaintiff was unsurprisingly unable to point to such “admission”. Instead, he relied wholly on his own characterisation of the call contents: “佢又冇講過話佢唔搵人[...] 佢話搵人收, 佢唔會有事[...]” [Day 2, after morning break, pre-lunch]. The plaintiff claimed that when the defendant said to Carson “我收到就收，收唔到就算囉”, he felt “佢 [referring to the defendant] 已經做左 [...]”.  Eventually, the plaintiff conceded that it was merely his own interpretation of the text: when it was put to him, “佢無講過佢已經搵咗人”, he replied, “我文法上，我覺得佢已經係做– 睇到佢係做咗囉。”.  Thus, I agree not only is the plaintiff’s characterisation of the defendant’s statements disingenuous and subjective, it is also unsafe to rely on the plaintiff’s interpretation of the 30 May Call in circumstances where Carson is the better person to explain its contents.

126.  For all the reasons stated above, I dismiss the plaintiff’s claim in this action against the defendant.  I discharge the interlocutory injunctions granted under the Continuation Order.  I grant liberty to the defendant to apply to enforce the plaintiff’s cross-undertaking as to damages.

127.  Further, I order that the costs of the action be paid by the plaintiff to the defendant, such costs are to be taxed if not agreed (with a certificate for 2 counsel for the trial).

128.  The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

129.  Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.