LAW KA YAN THOMPSON v. HO KANG WING

HCA 1926/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1926 OF 2015

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D E C I S I O N

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1.  This is an application by the plaintiff to continue an ex parteinjunction given by this court on 21 August 2015 and continued on 28 August 2015 pending this application. The defendant opposes the application and has also issued a summons to discharge it.

The injunction

2.  The injunction restrained the defendant from threatening, harassing, intimidating, causing disturbance or interference to the plaintiff, the members of his family, his relatives and friends, including but not limited to a few named individuals.  The injunction also enjoined the defendant from approaching or communicating by telephone, fax, e-mail, SMS or social networking tools with the plaintiff, members of his family and friends, including but not limited to the named individuals. 

3.  I cannot tell how large is the plaintiff’s circle of friends, but they are all protected by this injunction regardless of whether they feel the need for such protection.

4.  The injunction also enjoined the defendant from going to anywhere within 50 metres of six specific location.  They are the residential addresses of the plaintiff, his mother, his elder sister and his mistress, one Madam Poon, and the schools of his children and the children of his elder brother.

The other summonses

5.  There are three other summonses all taken out by the plaintiff.  The first is for leave to file and serve the plaintiff’s third and fourth affirmations out of time.  They are affirmations in reply.  This summons was issued on 4 January 2016.  The defendant opposes this summons solely on the ground that the plaintiff has not explained his delay but does not say what prejudice the defendant will suffer if leave is granted.

6.  Since these affirmations in reply had been provided to the defendant’s solicitors for a month, I see no prejudice to the defendant by allowing the summons.  I therefore allow the summons with costs against the plaintiff, but the costs of their hearing against the defendant.

7.  The next summons is for leave to file and serve the plaintiff’s fifth affirmation. That summons is for production of an audio recording of a conversation between the defendant and the plaintiff’s elder brother, one Carlson Law, together with the transcript of the recording.

8.  The conversation was recorded on about 30 May 2015.  The plaintiff said that he only discovered that his brother had this recording recently, hence he could not have produced it earlier.  The defendant contested this explanation. I think there may be some truth in the explanation as the plaintiff had produced other audio and visual records in his first affirmation.  There is no reason for him to delay the production of this recording and transcript.  In any event, the defendant has prepared his second affirmation to reply to this affirmation of the plaintiff just in case I should allow this summons.

9.  Since the defendant has prepared a full response to the fifth affirmation of the plaintiff, I therefore allow this affirmation and the defendant’s second affirmation to be admitted for the purpose of this hearing with costs of the summons be paid by the plaintiff but no order of costs for hearing this summons.

10.  The third summons is for leave to cross-examine the defendant and his wife, Madam Tam, on their affirmations.  After some exchange between Mr Yip, counsel for the plaintiff and me, the plaintiff decided to withdraw this summons.  I granted leave for him to do so with costs to the defendant.

Background

11.  The plaintiff and defendant are acquainted with each other since sometime in 2011.  The background leading to this dispute started with the sale and purchase of a shop at No. C 68, 1/F, Commercial Development of Lockwood Court, Kingswood Villas, No. 1 Tin Wu Road, Tin Shui Wai, Yuen Long (“the Property”).

12.  An estate agent, Ngai Lok-kei, who was acquainted with both the plaintiff and defendant, introduced the Property to the defendant in early October 2014.  On 29 October 2014, the defendant’s wife, Madam Tam, through her company Take Point Investment Holdings Limited (“Take Point”) entered into a provisional sale and purchase agreement to purchase the Property at HK$28,560,000.

13.  The vendor was one Cheerful Joy Investments Limited (“Cheerful Joy”), a BVI company.  The provisional sale and purchase agreement was, in fact, a sub-sale, and Cheerful Joy was selling the Property as a confirmor.  Cheerful Joy had entered into a provisional sale and purchase agreement with the owners on 18 October 2014 agreeing to purchase the Property at HK$19,00,000.

14.  It is the defendant’s case that the defendant and his wife only became aware that Cheerful Joy was selling the Property as a confirmor to Take Point on about 2 February 2015.  They also became aware that Cheerful Joy was trying to reap a profit of HK$9,560,000 out of this purchase and sub-sale arrangement.  They also learned in February 2015 that the estate agent, Grand Vision Property Limited, which clinched the sale and purchase agreement between the head vendors and Cheerful Joy, was a company solely owned by the estate agent Ngai.

15.  They alleged that Ngai had admitted to having received HK$680,000 from Cheerful Joy and Ngai then persuaded Take Point to purchase the Property at a high price.

16.  They also learned at the end of March 2015 that the sole director of Cheerful Joy at all material times was the plaintiff’s mistress, Madam Poon. Madam Poon was appointed to this office on about 20 October 2014, which was shortly before the making of the provisional sale and purchase agreement between Cheerful Joy and Take Point.  She also became the sole shareholder of Cheerful Joy on day between 13 November 2014 to 16 February 2015.

17.  Eventually, Take Point did not complete the sub-sale and purchase of the Property and Cheerful Joy also did not complete the head sale and purchase.  However, Take Point had already paid HK$5,712,000 to Cheerful Joy which Cheerful Joy had refused to return.  In the meantime, the defendant phoned Ngai repeatedly and accused him of conspiring with Cheerful Joy to defraud Take Point.  Ngai denied the charge.

18.  The defendant had also complained against Ngai to the Estate Agents Authority in March and to the ICAC in May. 

19.  Since Madam Poon was the plaintiff’s mistress, the defendant also sought help from the plaintiff’s elder brother, Carlson Law.  He asked Carlson Law to find out if Madam Poon and/or the plaintiff was involved in the alleged deception.

20.  The defendant at that time had already engaged a private detective to tail Madam Poon and had obtained some photos of Poon and the plaintiff when they travelled in Vietnam.  The defendant sent these and other photos of Poon to Carlson Law through a social networking tool on the mobile phone from 9 to 15 May 2015.

21.  The defendant explained on affirmation that he did so to enable Carlson Law to identify Madam Poon because Carlson Law said that he was not familiar with Poon.  I doubt this explanation.  If Carlson Law should have desired to identify or meet with Poon, he could have made a request to the plaintiff. There is no evidence that Carlson Law had made such request but the plaintiff was not cooperative so that Carlson Law needed the defendant’s help. It is obvious that the defendant by sending the photos to Carlson Law was giving him a veiled message that the defendant could reach the plaintiff and Poon at any time with ease.

22.  Apart from conducting dialogues on social networking tools, the parties also had two meetings in May, but the plaintiff denied in the meetings that he or Madam Poon had anything to do with the alleged plot of deceiving Take Point.  The plaintiff said that everything was arranged by Ngai and that Poon had merely signed some papers at Ngai’s request. 

23.  On the plaintiff’s case, Ngai, was on the one hand(through his estate agency company) the estate agent of Take Point, but was on the other hand tryingto sell the Property as the concealed vendor to Take Point with a view to making a profit of HK$9,560,000 from Take Point.

24.  Since the plaintiff had denied that he or Poon had anything to do with the scheme of purchase and sub-sale, Carlson Law also provided no assistance to the defendant to recover the HK$5,712,000 that Take Point had paid Cheerful Joy.

25.  The defendant, his wife, Madam Tam, and Take Point then issued a writ of summons in HCA 1289/2015 on 12 June 2015 against Ngai, his two estate agency companies that acted as agents in the head sale and sub-sale, Madam Poon and Cheerful Joy.

26.  I note that the stance taken by Ngai, Madam Poon and Cheerful Joy in their defence in HCA 1289/2015 is different from the plaintiff’s stance herein as revealed in the evidence of this action.  The plaintiff’s stance herein is that he and Madam Poon both had nothing to with the purchase and sub‑sale of the Property, save that Poon had signed some papers at Ngai’s request.  The logical deduction from this is that Cheerful Joy was not sub-selling the Property for the indirect benefit of its sole shareholder, Madam Poon, but was for the benefit of Ngai.  That means Cheerful Joy was acting as the alter ego of Ngai in this transaction. 

27.  However,Ngai, Poon and Cheerful Joy pleaded in their defence in HCA 1289/2015 that Cheerful Joy was at the material time not the alter ego, corporate vehicle of and/or controlled by Ngai.  They further pleaded that Poon was not at the material time a nominee of or acting in concert with Ngai. 

28.  Before the defendants in HCA 1289/2015 had filed their defence, the plaintiffherein had from 18 June to 16 August 2015 received on the social networking tool on his mobile phone some messages and photos from a debt collector.

29.  The debt collector said in the messages that he represented a Mr Ho to demand repayment of HK$16 million from the plaintiff.  The photos showed the schools where the sons of Carlson Law and the daughters of the plaintiff were studying.  The messages also contained threats of harm to the children and other kinds of veiled threat.  There was also a message that if the plaintiff was willing to repay the money of the shop, he could take a cheque to a solicitors firm to sign a settlement agreement.

30.  On 21 June 2015, the plaintiff phoned and had a discussion with the debt collector.  The plaintiff asked the debt collector not to harm Madam Poon and their son.  The debt collector replied that if there was no payment, everybody would be harmed (B19).

31.  The plaintiff also disputed the sum of HK$16 million and said that Mr Ho had only lost HK$5.7 million.  The debt collector, however, asserted that there were also legal costs and the sum due to the defendant in another transaction involving properties in a building called Ka Ming Court, which I will refer to below (B91).  The debt collector also alleged that the plaintiff had engaged in price difference deception (B92). 

32.  The conversation was then taken over by another debt collector.  This debt collector appeared to be willing to negotiate the amount payable, but he insisted that the plaintiff should admit liability first (B92). 

33.  This debt collector also alleged that it was the plaintiff’s mistress who had sold a property to the wife of his boss thereby cheated the money of his boss (B92).

34.  On 13 August 2015, Ngai, in the company of his wife, was attacked by three or four males in a carpark.  He was hit by an iron bar on the head.  He was admitted to a hospital and was diagnosed to have suffered a 7 cm laceration on his head and injuries to his neck, elbow, arm and fingers.  The plaintiff and his family were terrified by the incident (§ 35, A142).  The incident was reported to the police for investigation. 

35.  The plaintiff also said in his affirmation that the acts of the debt collectors, who were the defendant’s agents, had caused disruption to the daily life of his family.  He thus applied for the ex parte injunction against the defendant.

The defendant’s case

36.  The defendant said in his affirmation of opposition that he managed several businesses and was the chairman, president and CEO of a company called TransAKT Ltd, which is listed on the OTCQB Venture Stage Marketplace in the US.  He referred to how his wife’s company, Take Point, had been allegedly defrauded by Ngai and Cheerful Joy.  Regarding the messages that he sent Carlson Law in May 2015, he said he was sending them to Law for Law to identify Madam Poon (§ 33, A184).  I have already expressed my doubt on this explanation.

37.  The defendant also said that he had reported Ngai’s misconduct to the Estate Agents Authority and the ICAC.  He had also taken out HCA 1289/2015 to recover his loss. 

38.  He did not however regard the plaintiff as having any role to play in the alleged swindle. Hence, he said he would not have engaged a debt collector to demand payment from the plaintiff.

39.  Miss Lau, counsel for the defendant also emphasised these points. However, the transcript of the conversation between the defendant and Carlson Law in May 2015, as produced in the plaintiff’s fifth affirmation, showed that the defendant was extremely angry about the plaintiff and Madam Poon.  The defendant thought that he had been swindled by the plaintiff, Madam Poon and Ngai.  The defendant repeatedly said in the conversation that he would engage a debtor collector to recover his money and he would not be bothered by whatever actionthat the debt collector might take (B151-158).

40.  Furthermore, a photo that the defendant had sent to Carlson Law in May 2015 showing the plaintiff in Vietnam was also found in the photos sent by the debt collector to the plaintiff in June to August 2015 (B69 and B76).

Analyses and decision

41.  Looking at the evidence in round, I am satisfied that the plaintiff has established a serious question to be tried that the debt collector was engaged by the defendant.  I rely, in particular, on several matters in coming to this conclusion:

(1) The first matter is that the defendant regards Poon as a co‑conspirator to the alleged scheme of sale and sub-sale of the Property to defraud Take Point.  Poon is being sued by the defendant, his wife and Take Point in HCA 1289/2015.

(2) The second matter is the audio recording and transcript of the conversation between the defendant and Carlson Law as produced in the plaintiff’s fifth affirmation. The defendant had said repeatedly in the conversation that he would engage a debt collector to go after the plaintiff. 

(3) I also rely on the messages and photos that were sent by the debt collector to the plaintiff. The debt collector expressly said that he was acting for a Mr Ho.  There was also a common photo in the photos sent by the defendant to Carlson Law in May and those sent by the debt collector to the plaintiff in June to August.

42.  Miss Lau, counsel for the defendant, takes the point that the 16 million could not be a sum demanded by the defendant as Take Point had only lost HK$5.7 million.  The plaintiff explained that the HK$16 million was made up of the price difference of over HK$9 million, the disputed commission of nearly HK$200,000 and a sum exceeding HK$5 million that the defendant said he had been defrauded in the sale of two flats in Ka Ming Court by the plaintiff’s family to him.  The fact that a debt collector was trying to recover a sum related to the transaction of the Ka Ming Court flats is shown in the conversation between the plaintiff and the debt collector (B91).

43.  Miss Lau also submits that there are two other possible explanations for what has happened.  One possibility is that the plaintiff owed another Mr Ho a sum of HK$16 million and the debt collector was engaged by that Mr Ho.  I reject this possibility.  If the plaintiff was chased by this other Mr Ho, he would have applied for an injunction against him and not the defendant herein, as an injunction against the defendant will not stop the other Mr Ho from intimidating him.  There is also too much coincidence for this other Mr Ho to be involved in the Ka Ming Court transaction too. 

44.  The other possibility submitted by Miss Lau is that this is all a plot set up by the plaintiff against the defendant, but I cannot see why the plaintiff should have set up this plot against the defendant when, on Miss Lau’s case, the plaintiff had not suffered anything and the defendant was only proceeding against Madam Poon and Ngai by legal proceedings and notby any other undesirable means.  I see no reason why the plaintiff should have chosen to frame the defendant, when, on Miss Lau’s case, the defendant has not done anything to provoke the plaintiff to act.  I therefore reject this possibility too. 

45.  In the premises, I also find that the plaintiff has shown a serious question to be tried on whether the defendant should be liable to him on the tort of intimidation. There is evidence showing unlawful threats being practised on the plaintiff by the debt collector on behalf of the defendant.  The threats as uttered showed an intention to harm the plaintiff and his family. The damage to the plaintiff is obviously the interruption to his daily life and that of his family.

46.  Miss Lau has also made several points about alleged material non-disclosure on the facts and in the law committed by the plaintiff in his ex parte application.  Miss Lau alleged that the plaintiff had mischaracterised the defendant’s motive in sending the photos of Madam Poon and him to Carlson Law. She submitted that the defendant’s motive was to assist Carlson Law to identify Madam Poon.  I have already disposed of this issue above.  I do not accept the defendant’s explanation.

47.  The next point is the HK$16 million demanded by the debt collector.  Miss Lau said the plaintiff had not explained to the court that Take Point had only lost HK$5.7 million-odd and not $HK16 million, but the plaintiff already explained how the 16 million was made up of and it included the sum claimed by the defendant in the Ka Ming Court transaction.  This is confirmed by the conversation between the plaintiff and the debt collector (B91).  Furthermore, the debt collector had shown a willingness to negotiate the amount if the plaintiff should admit liability (B92).  I therefore find that the plaintiff had an understanding of how the HK$16 million was made up of and he had explained it to the court.  I find that there is no material non‑disclosure on this matter. 

48.  Miss Lau also complained that the plaintiff had not inquired with the defendant and Madam Tam before going to court as an inquiry with either of them would reveal their denial that the defendant had engaged a debt collector to run after the plaintiff.  I, however, would not consider the plaintiff to be at fault for not inquiring with the defendant or Madam Tam on whether they had engaged the debt collector.  The debt collector was saying that he was acting for Mr Ho.  The Ka Ming Court transaction was mentioned.  The second debt collector in the conversation with the plaintiff also said that it was the plaintiff’s mistress who had sold a property to the wife of his boss thereby cheating his boss money (B92).

49.  Putting these together, the plaintiff was entitled to regard the debt collector as agents of the defendant and apply for an injunction against the defendant without further inquiry with the defendant or Madam Tam. 

50.  Miss Lau then said that when the plaintiff applied ex parte, he also relied on the tort of harassment, but the plaintiff had not mentioned to the court that there was doubt on whether such tort existed in Hong Kong. 

51.  I think any doubt about the existence of such cause of action had been set to rest by the Court of Appeal in Wong Tai Wai David v The Hong Kong SAR Government, CACV 19/2003 and 247/2003 (7 September 2004), where A Cheung J (as he then was), with Yuen J agreeing, said that it was quite impossible to say that given present state of the law and its possible development in Hong Kong the tort of harassment is unknown to the law as a cause of action.  That observation was made more than 10 years ago.  I do not think there is any material non‑disclosure by the plaintiff in not telling the court that there was a doubt about such cause of action more than 10 years ago. 

Order

52.  In the premises, I would continue the ex parte injunction until the trial or until further order.  But I would narrow down its scope so that the reference to the relatives and friends of the plaintiff, including Ngai Lok-kei and Poon Lai-shan, and the plaintiff’s elder brother, Carlson Law, in paragraphs 1, 2 and 4 of the order be deleted as the plaintiff has no locus standi to seek such an injunction for these individuals.  These individuals are not members of the plaintiff’s family and are at liberty to come to court for injunctive relief if they feel the need to do so.

53.  Paragraph 3 of the order also restrains the defendant or his agents from intruding into a circle of 50 metre radius from each of six addresses.  I would exclude the Star Court property from this paragraph as that is the residence of the plaintiff’s elder sister.  I would also amend the address of Riviera Gardens, 28 Wing Shun Street, Tsuen Wan to: “Room B, 7th Floor, Block A, Riviera Gardens, 28 Wing Shun Street, Tsuen Wan”.  The amended address was used in the original order applied for by the plaintiff but was amended to the whole of Riviera Gardens on 28 August 2015 at the instance of the plaintiff.  I am not satisfied with the need to amend this address as the plaintiff has not explained how he himself would have made any error on the address of his mistress when he applied ex parte.  I also make it clear that I maintain the injunction over this address for the sake of the plaintiff’s son and not for the sake of Madam Poon.

54.  Finally, I make a costs order nisi that the costs of the plaintiff’s summons to continue the ex parteinjunctionand the defendant’s summons to discharge the same be reserved to the trial judge, save that 80% of the costs of argument should be taxed and paid by the defendant to the plaintiff forthwith.

55.  I do not give the plaintiff 100%of the costs of argument because the plaintiff should pay some costs to the defendant for the argument on the scope of the injunction.  Instead of requiring the defendant to go for taxation for such costs, I reduce the plaintiff’sentitlement to costs to reflect that.