NGAI CHU v. WONG KAM SHING

DCMP4219/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 4219 OF 2004

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J U D G M E N T

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1.  The Plaintiff was injured in an industrial accident on 24 April 2002, and he wished to call the Defendant, who was his co-worker at the time of the accident, as his witness in his claim for employees’ compensation.  However, after the issuance of the Writ of Subpoena, the Defendant failed to attend the trial starting on 22 November 2004.  Hence, the Plaintiff brought the present contempt proceedings against the Defendant for refusing or failing to attend the trial in the relevant employees’ compensation proceedings, DCEC801/2003 (“the EC Case”), under the Writ of Subpoena dated 2 November 2004.

2.  It is common ground that the Defendant failed to attend the trial.  The main issues in the present case are as follows: 

(1) whether the Writ of Subpoena was properly served on the Defendant; and

(2) whether the Defendant did have the requisite state of mind at the relevant time which satisfied the mental element for contempt.

The Plaintiff’s evidence

3.  The Plaintiff called 2 witnesses to testify against the Defendant.  The first is one Mr Lai Cheung, who was working as a general assistant in the Legal Aid Department from June 2002 to March 2005.  As the Plaintiff was legally aided in the EC case, Mr Lai was assigned to serve the Writ of Subpoena on the Defendant.  At around 5.50 pm on 9 November 2004, he arrived at the Defendant’s flat at Room 3406, Ying Kai House, Fu Tai Estate, Tuen Mun.  When he arrived, the Defendant was not there.  However after about 15 minutes, a man appeared.  Mr Lai asked that man whether he was the Defendant, and he replied in the affirmative.  Mr Lai then explained the contents of the Writ of Subpoena to the Defendant, and told him that he had to attend court in due course.  After hearing so, the Defendant was fierce, unco-operative and refused to accept service of the Writ of Subpoena.  Mr Lai therefore put the same on the ground in front of him.

4.  The trial of the Plaintiff’s EC Case was actually put in the warned list.  After the Legal Aid Department knew about the actual hearing date, Mr Lai was instructed to serve the Letter of Notification of the Hearing Date on the Defendant on 19 November 2004.  On that occasion, the Defendant was not in his flat, and so Mr Lai inserted the Letter of Notification in the letterbox of the Defendant’s flat.

5.  On 9 December 2004, Mr Lai proceeded to serve the originating summons of the present contempt proceedings on the Defendant.  At this time, the Defendant, whom he saw earlier on 9 November 2004, appeared in his flat.  Upon seeing Mr Lai, the Defendant scolded him in foul language and refused to accept service.  Mr Lai then threw the originating summons through the door into the Defendant’s flat.

6.  The Plaintiff’s second witness is Madam Li Yuk-king, who is a law clerk working in the Legal Aid Department.  According to her, she called the Defendant on his mobile phone on 20 November 2004, reminding him to attend the trial of the EC case on 22 November 2004.  Even though the Defendant confirmed that he had received the Writ of Subpoena and the Letter of Notification, the Defendant said he would not attend the hearing.  After the Defendant failed to attend court on the first day of the trial, Madam Lee called the Defendant again that evening, reminding him of the serious consequences of disobeying the Writ of Subpoena, and urging him to attend the hearing on the following day.  However, the Defendant said he would not attend the hearing and hung up the phone immediately. 

The Defendant’s evidence

7.  The Defendant himself testified in the hearing.  According to him, he has been working as a construction site labourer for about 30 years.  He speaks Hok Lo dialect and he only knows a little Cantonese. 

8.  According to the testimony of the Defendant, no one has ever served any Writ of Subpoena or originating summons of the contempt proceedings on him.  He, however, admits that he had two telephone conversations with a lady.  On the first occasion, the place where he received the call was noisy.  As the lady spoke Cantonese at a fast pace and his Cantonese was not very good, he did not understand the message from the caller.  On the second occasion, the lady likewise spoke Cantonese at a fast pace and he, again, could not understand what the lady was saying.  Further, his wife was responsible for collecting the mail in the letterbox, and she had not passed any Letter of Notification to him. 

Assessment of the evidence

9.  After hearing the testimony of the witnesses, I find the Plaintiff’s witnesses to be honest and truthful witnesses.  They do not have any interest in the present proceeding and the related EC case, and there is no reason for them to fabricate the evidence against the Defendant.  I accept their evidence to be the truth.

10.  On the other hand, I do not find the Defendant to be a reliable witness.  He admits that he had received 2 telephone calls from Madam Lee.  On both occasions, he claimed that the lady spoke Cantonese at a fast pace.  As his Cantonese was limited, he did not understand the message from the caller.  However, before the Defendant had obtained legal representation, he was able to communicate well with the court in Cantonese in the past 3 hearings, and it is very difficult for me to accept that the Defendant’s understanding of Cantonese was limited, in particular, the Defendant has been in Hong Kong for so long.   Even if Madam Lee were to speak at a fast pace, he could have asked for further clarification in the conversations.  It is quite inconceivable that he failed to get Madam Lee’s message on both occasions.  In my judgment, the Defendant just made this excuse with a view to justify his non-attendance at the trial.

11.  Further, the Defendant was evasive when he was cross-examined on matters relating to the EC case, and about the requests made by the Legal Aid Department for his assistance in that proceeding.  The Defendant certainly has matters to hide in that regard, and this also undermines his credibility as a witness. 

12.  Indeed, to accept the Defendant’s evidence as the truth, it would mean that Mr Lai has fabricated the evidence for service on two occasions, the Defendant’s wife had not handed the Letter of Notification to him, and the Defendant, for some peculiar reasons, did not get Madam Lee’s message in both telephone conversations.  In my judgment, the chance of all these things happening at the same time is simply too remote, and the Defendant’s evidence cannot therefore be true.

13.  In his submission, Mr Kwan, counsel for the Defendant, submits that it was incredible the Defendant, in his first conversation with Madam Lee, would have volunteered the information that he had earlier received the Writ of Subpoena and the Letter of Notification.  But in my assessment of the evidence, when the Defendant was confronted by Madam Lee, there was nothing strange about him revealing such information somewhere in his conversation, and I do not accept that such argument would undermine the credibility of Madam Lee as a reliable witness.

Mistaken identity

14.  In the course of the proceedings, Mr Kwan did mention about the possibility of mistaken identity.  As Mr Lai did not ask for the identity card of the person to whom he served the Writ of Subpoena and the Originating Summons, a request which the Defendant was able to refuse under the law, that man might not be the Defendant himself.

15.  However, based on the evidence of Mr Lai, there is simply no possibility of mistaken identity in the present case.  On the first occasion, the man to whom the Writ of Subpoena was served admitted himself to be the Defendant.  On the second occasion, when the Originating Summons was served, the same man was found inside the Defendant’s flat.  Further, when the Defendant received the call from Madam Lee, he admitted that he had earlier received the Writ of Subpoena.  In such circumstances, there could not have been any mistake that the man who received the Writ of Subpoena and the Originating Summons was the Defendant himself.

16.  In fact, Mr Lai also identifies the Defendant in court.  Although Mr Kwan does not object the court identification, I am fully aware of the danger associated with such kind of visual identification, as a witness will too readily come to believe, without any true recollection, that someone present in court must be the man whom he had previously seen.  However, as Mr Lai had, during his employment with the Legal Aid Department, only been asked to effect personal service on less than 10 persons, I accept his identification as reliable.  However, I must emphasise that the other evidence of the Plaintiff’s witnesses is already  sufficient to identify the Defendant, and there is really no need for me to rely on the court identification in the present case.

The Defendant’s state of mind

17.  Based on the evidence of the Plaintiff’s witnesses, the Defendant was fully aware of his obligation to attend the trial.  As I have mentioned above, there is simply no room for the Defendant to complain that he did not understand the message given to him by Mr Lai and Madam Lee.  In fact, on 2 occasions when he spoke to Madam Lee, he clearly indicated that he would not attend the trial.  The Defendant knew full well that he would be punished if he disobeyed the Writ of Subpoena but he, nevertheless, deliberately failed to attend the trial as a witness.  The Defendant’s state of mind at the relevant time is therefore sufficient to satisfy the mental element for contempt. 

Conclusion

18.  It is the duty of the Plaintiff to prove beyond all reasonable doubt both the act claimed to constitute the contempt and the Defendant’s requisite state of mind.  After considering the evidence of this case, I am satisfied that the Plaintiff has discharged such burden.  I therefore find the Defendant guilty of contempt for refusing and failing to attend the trial in the EC case under the Writ of Subpoena dated 2 November 2004 and served on him on 9 November 2004.

19.  I will now listen to the parties on the appropriate punishment that should be imposed in the present case and on the issue of costs.