CHAK CHOI KWAN v. DAISY LAI AND OTHERS

HCA 1241/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1241 OF 2015

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DECISION
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I. INTRODUCTION

1.  The plaintiff (“P”) resided in Taiwan, but had an address for service in Hong Kong. He was an applicant for the Juris Doctor programme (“JD Programme”) of the Faculty of Law (“Law Faculty”), The University of Hong Kong (“HKU”). His application was rejected.

2.  Ms Daisy Lai (“Ms Lai”) was the Administrative Co-ordinator for the JD Programme of the Law Faculty, HKU. The JD Programme Admissions Committee, HKU (“Committee”) was responsible for admission matters for the JD Programme. Ms Lai and the Committee are the defendants in the present action (“Ds”).

3.  P alleged inter alia that:

(a) P completed the application procedure for admission to the JD Programme (“JD Application”) by sending the completed online form and bundle of certificates relating to his “professional work experience of the academic achievement and some related inventions patents” to the Law Faculty, HKU.

(b) On 4 February 2015, a whole set of International Education Research Foundation (“IERF”) certificate documents (“IERF Documents”) was shipped by DHL Express (“DHL”) to the Admissions and Academic Liaison Section Registry, HKU where the general office of the Law Faculty, HKU was located with “(Re: JD Application [Name: Chak, Choi-Kwan and Application Number 1100254883])” marked “on the envelop and on the IERF documents”.

(c) There was CCTV recording at about 16:18 hours on 4February 2015 for 20 minutes that showed the aforesaid delivery by DHL. A “Ms Wong” (ie administrative assistant PriscillaWong) signed and acknowledged such delivery, and on 15June 2015 DHL gave P a certificate confirming that an express envelop of “DOCUMENTS” (weight 0.15 lbs) was picked up on 2February 2015 at 15:40 hours (shipper was “IERF” in the United States) under waybill number 1417715014, and was delivered to HKU at “10/F Cheng Yu Tung Tower, Pokfulam Road Re: Chak, Choi-Kwan HONGKONG” (with “Piece IDs” being “JD0030162897000026”) with signature by “MSWONG” on 4 February 2015 at 16:18 hours (“DHL Confirmation”).

(d) On 6 March 2015, P enquired with the JD Programme as to why he was not selected for admission interview in that month, and urged for re-consideration.

(e) On 10 March 2015, the JD Programme replied that shortlisted applicants would be asked to attend admission interviews in person or by phone/video, depending on the locations and availabilities of the applicants, and that such interviews would mostly be conducted in March.

(f) On the same day, P informed the JD Programme that so far he had not been asked to attend an interview, and enquired whether or not he was a shortlisted applicant, and if not, why he did not match the shortlist requirements and how he could fulfil such requirements in future application.

(g) On 17 March 2015, P still had not received notice of being shortlisted for admission interview, so he sent a letter by EMS to enquire about the outcome of his application. He queried why he was not shortlisted for admission interview, and went on to explain his academic achievements (with assertion that IERF had certified his doctor of medicine degree to be equivalent to that in the United States), his invention patents, etc. P sent by post and by email documents of his JD Application that were “[supplementary] to IERF Documents sent to [the Ds]”.

(h) On 10 April 2015, Ms Lai on behalf of the JD Admissions Committee (“Committee”) of the Law Faculty, HKU sent an email addressed to P as follows (“Email”):

“The Admissions Committee has carefully considered your application for admission to the JD. Unfortunately, your application has been unsuccessful. As in the past, competition to the JD has been fierce, and your application was not ranked as highly as others, taking into account your academic achievements, your substantial work experience and the likely contribution you would make to the JD class. We wish you every success in the future.”

(i) On 13 April 2015, P sent email request to Ms Lai as follows:

“I am going to HK High Court, for filing the Writ of Summons on the Defamatory discrimination Statement of Claim in person; and for your convenient meeting arrangement with your Dean of the Faculty.

Would you be so kind as to manage my request and give me an answer of the matter at your soonest possible?

I am waiting for my appointment request.

Thank you very much for your kind service.”

(j) On the same day, Ms Lai replied as follows:

“On behalf of the JD Admissions Committee, I sent an email to you on 10 April 2015, via jdinfo@hku.hk. That was a formal and official reply from the Committee. If you need to make an appointment with our Dean, please email to deanlaw@hku.hk for his attention and arrangement.”

(k) On 13 April 2015, P replied he would proceed accordingly. He further enquired whether he could copy or obtain all documents he sent for his JD Application when he was next in Hong Kong, and claimed those documents “are important as evidences to prove my professional working experience, inventions, academic achieve, etc. They are direct evidence related to the oncoming defamation lawsuit before high court. I have repeatedly emphasized to remind your excellency, not to discard any of the papers you signed receipt for possession”.

(l) On 14 April 2015, Ms Lai replied that according to instructions given by HKU, documents once submitted would not be returned and would be destroyed if the applications were unsuccessful. But she went on to state that:

“Nonetheless, given the importance of the documents you provided, we may return the supporting documents we received for your application to you on an exceptional basis. This will also mean that we would not be able to respond to any of your enquiry as we would not have any evidence of your application then.

Please advise a date (on or before 15 July 2015) that you would come to our Office to collect your document. Otherwise, we will destroy all documents on 15 July 2015.”

(m) On 22 April 2015, P demanded a yes or no confirmation as to whether “these documents are certificates referring to every titles about my qualification, working experience, and academic achievement including the four invention patents certificates shown in the appeal of the EMS letter on 2015/03/18”.

(n) On 27 April 2015, the Law Faculty, HKU replied that P’s documents, ie qualification (1 sheet), working experience (8sheets) and academic achievement (2 sheets) including the 4invention patents certificates (6 sheets), would be returned to him when he would collect them in person on or before 15July 2015.

(o) On 4 May 2015, P reminded Ms Lai to preserve every paper that “you signed receipt for possession about my application”, and “[for] the convenience of discovery and listing stages in the near future” none of the papers should be discarded,

“including certificate sent to you from IERF. (you have signed receipt) Or we will save an unnecessary lawsuit, if you could show by law “bestowed upon you any justification for a legitimate aim; and/or condition (qualified) privilege” that exempt you from professional defamation and/or racial discrimination torts inflict on my person. It would be very kind of you to take seriously to my in good faith mitigation request.”

(p) On 5 May 2015, Ms Lai replied by stating “Noted with thanks”.

(q) On 6 May 2015, P chased for a reply to his request of 4May 2015, saying that:

“…… I am entitled to have the rights to ask you to answer in according to the rights subject to /The Hong Kong Bill of Rights Ordinance Cap 383 Article 14; //International Convention on Civil and Political Rights (ICCPR)//Article 17/; /International Convention on the Elimination of All Forms of Racial Discrimination//; //Convention against Discrimination in Education 1960//; //Asia-Pacific Regional Convention on the Recognition of Qualifications in Higher Education 2011//; //Race Discrimination Ordinance Cap 602/; //Defamation Ordinance Cap 21/.”

(r) On 11 May 2015, P continued to chase Ms Lai for a reply:

“It would be very kind of you, a top, to offer:

answer me you could or you could not show the justification/privilege cited in the above question; or you have the rights to do nothing for the mitigation request. Or you could offer any reason as a reasonable professor standard should have had under the like circumstances to prove your defamatory disparaged statement are not falsehood but are truth. You tortfeasors produce the affliction of intention infliction of emotional distress on my person. I have contracted insomnia for more than a month after being defamed. You got what you want to defame.

Take serious to what have done to harm others. Why you do it?”

(s) On the same day, Ms Lai replied as follows:

“Please be assured that all documents are retained in accordance with University policy. If you have any complaints about the JD admission process, it is now appropriate for you to direct them to the Dean, as I have previously advised you. Email of the Dean of the Faculty of Law is deanlaw@hku.hk. Furthermore, since that is the appropriate course of action for you to take, it is inappropriate for me now to respond, and that I will not be responding further, to your emails and messages.

Thank you for your attention and cooperation.”

(t) On 5 June 2015, P commenced the present action against Ds.

(u) On 10 June 2015, P collected documents for his JD Application but not the IERF Documents. Ms Lai refused to include the IERF Documents in the schedule of documents returned to P (“Return List”). The Return List comprised 20documents, 19 of which P acknowledged receipt and the remaining one P declined its return. P marked “[the] IERF certificate defendant ascertained that did not have it received” and “2015/6/10 1628” on the Return List and signed on the same.

II. STATEMENT OF CLAIM

4.  In the Statement of Claim (“SoC”) indorsed on the Writ of Summons, P alleged he submitted his JD Application in accordance with the published admission requirements[1] with legitimate expectation that the Committee would assess his application according to such requirements. Whilst P had “professional work experience of the academic achievements and some related invention patents”, some applicants admitted to the JD Programme did not have such. P contended that the Ds should have considered his fitness for the JD Programme on the merits based on “objective deduction of calculation” or “objective mathematical calculation” and not on “subjective induction of discretion”, and yet the Committee did not rank him as highly as or ranked him lower than those other admitted applicants without “professional work experience of the academic achievements and some related invention patents”, so the Committee’s “calculation” was “mathematically false”.

5.  P averred the Committee therefore “disparaged the professional work experience of the academic achievements and some related invention patents [of P] to zero value or negative value by the ranking”, and its “calculation are falsehood of their own being actual malice in that perspective” which caused “hatred, public contempt, shame ridicule, detriment to the person of [P]”. P claimed such “falsehood was used to nullify or impair reputation worthiness of [P’s] professional skill, knowledge, abilities, sufficiency and facilities as a Surgeon, an Anesthesiologist, and an Intensive Care Specialist and inventor of the inventions should have had; whereby the professional knowledge and skill are being a matter of significant essentials for the service in saving lives at risk from fatal injuries and diseases; whereby the professional comes from the academic achievements; whereby the academic achievements extends on some related inventions”. P further claimed that in breach of HKU’s own policy the Ds defamed him by having disparaged “the professional work experience of the academic achievements and some related invention patents of [P], used it as a pretext for the rejection”. It was also said the Ds could not rely on any defence of qualified privilege because they had abused and forfeited such privilege (if any) by actual malice.

6.  So in the SoC P claimed against the Ds on the grounds of inter alia:

(a) malicious falsehood and publication of false statements that vilified P’s “professionals work experience of academic achievement and some related inventions amidst members of the [Committee] and [Ms Lai] over the [Committee] of HKU on the ground of defamatory falsehood”;

(b) “disparate treatment of the professional work experience of academic achievements and some related inventions against [P] on the ground of national or ethnic discrimination”;

(c) “inequality in the [JD Programme] admission on the ground of disparate treatment”;

(d) nullification or impairment of “the recognition of [P’s] professionals and work experience, academic achievement and some related inventions which the [Ds] have been seeking and are seeking on the ground of national or ethnic origin preference”;

(e) nullification or impairment of “[P’s] qualification to tear the equality of treatment in education on the grounds of ‘discrimination’”.

7.  P further pleaded the Ds committed the aforesaid wrongs against him in breach of the Hong Kong Bill of Rights Ordinance Cap383, International Convention on Civil and Political Rights, Race Discrimination Ordinance Cap602, International Convention on the Elimination of All Forms of Racial Discrimination, Convention against Discrimination in Education 1960, Asia-Pacific Regional Convention on the Recognition of Qualifications in Higher Education 2011, International Covenant on Economic, Social and Cultural Rights, and various decisions by courts in the United States.

8.  P sought the following reliefs in the SoC:

“1. professional defamation recovery remedy for an order: declaratory judgement of the defamatory disparaged statement of the rejection are falsehood and the cause of admission reject be invalid;

2. relief from torts for an order: contravene anti-discrimination in the [JD Programme] admission decision and the disparate treatment of rejection be void;

3. recovery remedy for an order: declaratory judgement inequality in the [JD Programme] admission and the disparate treatment of rejection be dismissed;

4. recovery remedy for an order: declaratory judgment the nullifying or impairing the recognition of [P’s] professional academic achievement and some related inventions are irrational and [P’s] professional academic achievement and some related inventions be recognized and respected;

5. grant the education of the [JD Programme] for an order: on the merits to being study in the [JD Programme] class of HKU.

6. Plead HK$3,000,000 damage recovery.

7. Imbursement and spends incurred.”

9.  P pleaded further particulars and details in support of his claim in the SoC. Although I have considered the same, it is unnecessary for the present purpose to set out those further particulars and details in this Decision.

III. PROCEDURAL HISTORY

10.  On 19 June 2015, the Ds by their solicitors filed Acknowledgment of Service giving notice of intention to defend.

11.  On 8 July 2015, the Ds filed a summons to seek security for costs against P on the ground that P was/is ordinarily resident out of the jurisdiction (“Security for Costs Summons”). On the same day, the Ds filed the 1^st affirmation of their solicitors Yu Wen Yan (“Ms Yu”) in support of such summons (“Yu 1^st Aff”).

12.  In the Yu 1^st Aff Ms Yu noted P alleged in the SoC that he was (a) defamed by the Ds in the Email sent to him by the Committee on 10April 2015, which email informed P of his unsuccessful application for the JD Programme, and (b) discriminated against because he was Mandarin-speaking. Ms Yu said it appeared the crux of P’s complaint stemmed from his rejection from the JD Programme. The Ds told MsYu the purpose of the Email was to inform P that his application, when viewed holistically and taking into account all relevant factors, did not rank as highly as other applications. But the same criteria were applied to P as to other applicants, and P was not treated differently because he spoke Mandarin. Indeed, the Ds informed Ms Yu the JD Programme admitted a variety of students from different countries who spoke different languages, and there were Mandarin-speaking students admitted each year. Ms Yu (i) contended the ordinary meaning of the Email was not defamatory, and (ii) was informed by the Ds that the Email was only sent to P and there was no publication to a third party, so the Ds and their solicitors considered P’s claim unmeritorious and disclosed no reasonable cause of action.

13.  Ms Yu went on to explain in the Yu 1^st Aff that P was ordinarily resident outside Hong Kong, and there was no agreement for reciprocal enforcement of judgments between Taiwan (and the United States) and Hong Kong. Ms Yu also pointed out P did not appear to have any relevant assets in Hong Kong for the purpose of enforcement of any costs order that may subsequently be made against him. Ms Yu claimed P should pay security for the Ds’ costs to be incurred on High Court scale up to and including the hearing of the application for striking out the present action in the sum of $462,100. In the Yu 1^st Aff, Ms Yu exhibited (a) a copy of the Email (exhibit “WYY-1”), (b) a “true copy” of P’s JD Application (exhibit “WYY-2”, “Exhibit”), (c) a copy of Tolfin search on P made on 23June 2015 (exhibit “WYY-3”), and (d) a copy skeleton bill of costs (exhibit“WYY-4”).

14.  On 21 July 2015, P filed a summons for judgment against the Ds (“Judgment Summons”) on the basis inter alia that the Ds (a) failed to file any Defence within 28 days after filing the acknowledgment of service, (b) had no defence to P’s claims which were meritorious, (c) “committed destroying or concealing evidence, the [IERF] (more than 500,000 over 145 foreign countries to their U S equivalent reports) equivalent evaluation certification of US Doctor of Medicine, to prevent facts disclosure” (my emphasis), (d) “shifted the subject matter in dispute of their own, abuse of process by pleading security for huge costs for the sake of accessory to the same destination in their spoliation of evidence, by destroying or concealing evidence of IERF evaluation certification (equivalent to US doctor of medicine)” (my emphasis), and (e) misused the court’s process to stifle P’s claims by the Security for Costs Summons. On the same day, P filed his affirmation in support of the Judgment Summons by attaching a statement of facts that set out the alleged correspondence between P and MsLai summarised above (“P 1^st Aff”). P exhibited a copy of the Return List to the P 1^st Aff.

15.  On the same day, P filed a “Statement in opposition to counter the Summons of Security for Costs”. Again, it is unnecessary for the present purpose to set out the contents of such statement in detail save to note that P alleged inter alia that the Ds had no defence to his claims on the merits, that the Ds abused the court’s process by using the Security for Costs Summons to stifle his claims, that such summons was in violation of international conventions on human rights, and that the Ds destroyed or concealed “evidence of IERF evaluation certification” “of the US Doctor of Medicine equivalent qualification, knowingly, purposely, and intentionally; which concealment is adverse inference to [the Ds’] destination in the subsequent civil proceedings of security for costs”.

16.  On 22 July 2015, Master Ho inter alia adjourned the Security for Costs Summons for argument on a date to be fixed before a bilingual master, and granted leave for the Ds to file/serve affirmation in reply (if any). Subsequently, the Security for Costs Summons was fixed to be heard before a bilingual master on 2 March 2016 with 3 hours reserved.

17.  On 27 July 2015, the Ds filed a summons for leave to file and serve their Defence within 14 days after the determination of the Security for Costs Summons, subject to directions to be made in such application.

18.  On 31 July 2015, Master Hui granted leave for the Ds to file/ serve their Defence within 14 days after the determination of the Ds’ application under the Security for Costs Summons, subject to directions to be made in such application (“Time Order”).

19.  On 11 August 2015, the Ds filed Ms Yu’s 2^nd affirmation to oppose the Judgment Summons (“Yu 2^nd Aff”). Ms Yu explained that insofar as P sought default judgment in respect of the Ds’ alleged failure to file their Defence within 28 days after filing the acknowledgment of service, even though the deadline for filing the Defence under the court rules fell on 22July 2015, the court by the Time Order granted extension of time for the Ds to file their Defence within 14 days after the determination of the Security for Costs Summons.

20.  Ms Yu explained in the Yu 2^nd Aff that insofar as P sought summary judgment, the Ds opposed the same by relying on paragraphs3-8 of the Yu 1^stAff. She reiterated that P’s claim was unmeritorious and disclosed no reasonable cause of action because (a) there was no defamation in that the ordinary meaning of the Email was not defamatory, and there was no publication to a third party, and (b) there was no discrimination against P since the Ds did not treat P differently because he spoke Mandarin, and the same criteria was applied to him as to other applicants.

21.  In the Yu 2^nd Aff, Ms Yu also denied the Ds breached any human rights or committed any criminal office (if that was what P alleged), or that the Ds destroyed or concealed evidence, and “[there] is no factual basis for such an allegation, and it is not a ground to support the application for summary judgment”. Ms Yu further denied the Ds were using the Security for Costs Summons to abuse the process of the court, and reminded that the Yu 1^st Aff had set out the grounds in support of such application, ie P was resident outside the jurisdiction and appeared to have no assets in Hong Kong, the Ds believed P had no reasonable cause of action, and the costs of defending the present action would be significant. Ms Yu concluded in the Yu 2^nd Aff that the Ds had a good defence on the merits to P’s claims in the present action, so P was not entitled to default or summary judgment. MsYu urged the court to dismiss the Judgment Summons or alternatively grant unconditional leave to the Ds to defend the present action.

22.  On 17 August 2015 (ie the return day of the Judgment Summons), P filed his 2^nd affirmation in support of the Judgment Summons (“P 2^nd Aff”). In the P 2^nd Aff, P claimed the Email that asserted his JD Application was not “ranked as highly as others, taking into account your academic achievements, your substantial work experience and the likely contribution you would make to the JD class” must be illogical, false and in breach of human rights when he had “the material work experience of professionals and the academic achievement of an inventor who had a doctorate degree (IERF certifies equivalent to US doctor of medicine)” and the other applicants admitted to the JD Programme did not have such work experience, academic achievement and inventions. P claimed the falsity of the Ds’ assertions was demonstrated by their knowing or intentional destruction or concealment of the “IERF certification, of the US Doctor of Medicine equivalent qualification” to deprive him of possession/use of such document being his property.

23.  In the P 2^nd Aff, P exhibited the DHL Confirmation, and further claimed the whole set of the IERF Documents was delivered to the general office of the Law Faculty, HKU on 4 February 2015. He suggested the Ds must have destroyed or concealed evidence by exhibiting the Exhibit to the Yu 1^st Aff as the documents of his JD Application, which must be false as it failed to include the IERF Documents. Likewise, P suggested the Ds’ denial of such destruction or concealment of evidence in the Yu 2^nd Aff must also be false when the true copy of his JD Application should be the Exhibit plus the IERF Documents and not just the Exhibit. Given the falsity of the Ds’ assertions, adverse inference should be drawn against the Ds’ application for security for costs and against their denial of abuse of the process of the court by such application. On such basis, P sought default/summary judgment against the Ds, and an order to “vacate” the Time Order.

24.  At the return hearing of the Judgment Summons on 17August 2015, Master Ho dismissed such summons and ordered P to pay the Ds their costs summarily assessed at $8,500 within 14 days thereof (“Ho Order”).

25.  On 24 August 2015, P filed Notice of Appeal to (a) set aside the Ho Order, (b) seek judgment in default of defence and/or disposal of case on point of law on the ground that the Ds abused the court process by “Spoliation of Evidence, False Affirmation, Theft, and Perjury”, (c) unconditionally set aside the orders obtained by the Ds by “Spoliation of Evidence, False Affirmation, Theft, and Perjury” and (d) vacate the false Yu 1^stAff for the Security for Costs Summons (“Notice of Appeal”). The Notice of Appeal was scheduled to be heard before DHCJ KentYee on 17November 2015 (“Appeal Hearing”).

26.  On the same day, P filed his 3^rd affirmation in support of the Notice of Appeal (“P 3^rd Aff”). P did not make any application to the court for leave to file/serve the P 3^rd Aff pursuant to Order 58 rule 1(5) of the Rules of the High Court (“RHC”).

27.  In the P 3^rd Aff, P complained that Master Ho failed to see the legal grounds for the Judgment Summons, and the falsity of the assertions in the Yu 1^st Aff and in the Email that his JD Application was not ranked as highly as those of other applicants:

“II. As a question of law, whether parties pleading when found to be supported by false affirmation under oath could be granted enforceable.

And whether or not the dismissal of applications for Default of Defence Judgment (Cap 4A. O. 19 r.6) and the dismissal of application for vacated leave of Default Defence, when found to be supported by false affirmation under oath could be granted enforceable.

‘The IERF certificate [the Ds] ascertain that did not have it received” and refused to return as agreed ……

[The Judgment Summons]: IV. [The Ds] committed destroying or concealing evidence, the [IERF] (more than 500,000 over 145 foreign countries to their U.S. equivalents reports) equivalent evaluation certification of US Doctor of Medicine, to prevent facts disclosure.

[The Yu 2^nd Aff] paragraph 7, stating, “7. Paragraph IV of the [Judgment Summons] alleges that [the Ds] destroyed or concealed evidence. There is no factual basis for such allegation …’

[The Ds’] demand for factual basis on Spoliation of evidence allegation and its adverse inference was satisfied by [the DHL Confirmation], and unquestionably adopted before master A Ho at the open court hearing. [The Ds] did not object P’s allegation. [The ds] have no reason to object.

……

IV. Also, the assertion must be false because [the Ds] themselves had admitted it as false by their own conducts in destroying or concealing evidence, IERF certification, of the US Doctor of Medicine equivalent qualification, knowingly, purposely, and intentionally; which concealment is adverse inference to [the Ds’] destination in the subsequent civil proceedings of security for costs.

[The Ds] received the delivery of the whole set of [IERF Documents] at 16:18 o’clock, on the day of 4^th February, 2015, in the General Office of [the Law Faculty], 10/F Cheng Yu Tung Tower Pokfulam Road, [HKU], thus [the Ds] joint and severally liable for control over the IERF certificate. (Hereinafter refer to as proof of delivery and signed receipt, Exhibit: [DHL Confirmation])

V. [The DHL Confirmation] is sufficient beyond a reasonable doubt to prove [the Exhibit and the Yu 2^nd Aff] paragraph 7 8, stating, ‘7. Paragraph IV of [the Judgment Summons] alleges that [the Ds] destroyed or concealed evidence. There is no factual basis for such an allegation and it is not ground to support the application for summaryjudgment.’ and ‘8. Paragraphs V and VI alleges that [the Ds] are using the security for costs application as an abuse of process. I refer to paragraphs 13 to 15 of [the Yu 1^st Aff]. The reason why [the Ds] requested security for costs is because [P] resides outside the jurisdiction and appears to have no assets in Hong Kong. The Ds verily believe [P] has no reasonable cause of action and the costs of defending these proceedings will be significant’ are false.

VI. [The DHL Confirmation] is sufficient beyond reasonable doubt to prove the facts of matter asserted on the ‘Statement in opposition to counter the Summons for Security for Costs’ and ‘Summons of Default of Defence/Disposal of Case in Point of Law on merits against [the Ds] on the statement of claim’ are true.

VII. [The Ds] knowingly, purposely, and intentionally, committed the wrongdoing with intent to deprive [P’s] rights to the possession and or use of his property, the IERF document certificate, permanently. (IERF has more than 500,000 over 145 foreign countries to their U.S. equivalent reports)

VIII.[The Ds] knowingly, purposely, and intentionally, committed spoliation of evidence by destroying or concealing evidence, the whole set of IERF certificate documents. Proof is beyond a reasonable doubt that [the Yu 1^st Aff] paragraph 5, [the Email], and paragraph 6, stating, ‘There is now produced and shown to me marked “WYY-2” a true copy of [P’s] application’ are false. A true copy of [P’s] application should be [the Exhibit] + IERE, [the Ds] destroyed or concealed the whole set of IERF certificate.

[The Ds] knowingly, purposely, and intentionally, produced false affirmation, and used them to abuse processes in their court proceedings as to obstruction of justice.

 Accordingly, [P] Appellant contend that [the Ds’] leave for default of Defence order, is based on [the Ds’] ‘Security for Costs’. The security for costs motion of action is found to be supported by [the Ds] false affirmation upon destroying and concealing evidence. And that the supporting affirmation under oath for the Security for Costs was found to be lies, therefore, the motion of action is illegal, orders so obtained are unenforceable.

  The evidence being destroyed or concealed are relevant to the subject matter in dispute, because the IERF evaluation certificate documents, has the international standard ability to the consequent determination of the ranking ‘not as highly as others’ in dispute. The true copy of [P’s] application is “[the Exhibit] + IERF. [The Ds] made false affirmation, lying under oath to support their Security for Costs motion. “The true copy of [P’s] application is [the Exhibit]” affirmed on the [Yu 1^st Aff] under oath about [the Exhibit], are lies.

  Thus, as matter principle of law the consequent leave for Default of Defence order obtained which are depended on the illegal ‘Security of Costs’ motion must also be illegal.

  By removing the lies about [the Exhibit] of [the Yu 1^st Aff] under oath, the Security for Costs may not stand, so as are the leave for Default of Defence. [P’s] petitioning Judgment for Default of Defence may be granted even without appeal. Master did not see the matter principle of law about its basic facts, [P] appeal hereof for merits.”

28.  On 22 September 2015, P filed a summons to seek the following orders in relation to the documents for his JD Application set out in the Exhibit (“Exhibit Summons”):

“1. CAP 4A O14A

That [P’s] true copy of [the JD Application] is questionable (sic) to be [the Exhibit] plus the integration part of the [IERF], the whole set of [IERF Documents], thus is “[the Exhibit] + IERF documents”.

That the false instrument marked as [the Exhibit] admitted in evidence purports to be the true copy of [P’s][JD Application] be ordered inadmissible.

2. CAP 8 s 78

That the above said “[Exhibit] is a true copy of application” of [P’s] is false; that the false instrument [the Exhibit] admitted in evidence be impounding (sic) in according (sic) to Hong Kong Evidence Ordinance CAP s 78.

3. CAP 4A Defrault (sic) Pleading O 19 r 9

Dismissed Order filed on 21 August 2015 defrauded by [the Exhibit] be set aside, [the Exhibit] be remitted”.

29.In the document titled “SUMMONS Object False Instrument Admitted in Evidence” annexed to the Exhibit Summons, P explained that although the Exhibit annexed to the Yu 1^st Aff filed in support of the Security for Costs Summons was said to be a true copy of P’s JD Application, the actual true copy was in fact the Exhibit “plus, as [the DHL Confirmation] evidenced, the received integral part of the whole set of [IERF] (IEFR has more than 500,000 over 145 foreign countries to their US equivalents reports) documents that is to say, “[the Exhibit] + IERF”. P claimed the Exhibit alleged to be a true copy of his JD Application “admitted in evidence be impounded, remitted, and the Dismissed order filed on 21Aug 2015, defrauded by [the Exhibit] be set aside”.

30.On the same day, P filed his 4^th affirmation to confirm the contents of the P 3^rd Aff in support of the Exhibit Summons and to oppose the Security for Costs Summons (“P 4^th Aff”). P claimed the Ds:

“…… Refused to return the IERF documents as agreed by, ‘did not have it received.’ Notwithstanding, the IERF documents had been registered and retained in the booking records as required (duty) by HKU Policy of Registry as the Admission Committee’s reassurance.

[The Ds] had committed, with intent, to defraud and deprive [P’s] use/usage of his property of the IERF documents as certification to the application admission, permanently.

[The Ds] committed, with intent, to defraud and deprive [P] to use his property as tangible documentary evidence in the chose motion of this court proceedings, permanently.”

31.  In the P 4^th Aff, P further asserted inter alia that:

(a) the Ds failed to file their Defence after 28 days of filing the Acknowledgment of Service on 19 June 2015;

(b) the Ds destroyed or concealed the IERF Documents, so the Exhibit in the Yu 1^st Aff was false in that P’s JD Application was not the Exhibit but the Exhibit plus the IERF Documents, and consequently the Email was also false;

(c) the Ds repeatedly urged P to vacate the hearing of the Security for Costs Summons by consent summons;

(d) on 21 July 2015, P filed “Statement in opposition to counter the Summons of Security for Costs” setting out the grounds that the Exhibit and hence the Email (being exhibit “WYY-1” of the Yu 1^st Aff) were supported by false evidence, and that by solely relying on “Jurisdiction Residence” (ie exhibit “WYY-3”) the Security for Costs Summons was in conflict with international law and the United Nations Declaration of Human Rights;

(e) on 21 July 2015, P issued the Judgment Summons on the basis that the Ds did not have any meritorious defence as a matter of law, that they were in default of filing their Defence and that they had abused the process of the court by the Security for Costs Summons being “fraudulent court proceedings” by producing false evidence/affirmations to the court and by using false affirmations in court proceedings;

(f) the Yu 2^nd Aff filed to oppose the Judgment Summons denied P’s allegation of “Spoliation of Evidence and its Adverse Inference” as being without factual basis, but this was a false assertion.

32.  In the P 4^th Aff, P contended that:

“ In the HKU Education Institute, the registry, Admission and Liaison Section of Law Faculty Office, under the HKU Policy controlling by its Respondeat Superior and their authorized agents below, and the reasonable sequences in the treatment of a registered envelope and its containing documents weigh 0.5 pounds mailing from USA by international security post:

“shall decide whether [the Ds] did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.”

 To produce evidence [the Exhibit] purports to be a true copy of [P’s] application, under the reasonable professional standard of the public official, there must be particular steps of actions to meet the resulting plan further to the commissioning of the production of the evidence said [the Exhibit].

 [The Exhibit], is proffered to be a true copy of [P’s] application; that there must be an objective serial consequential acts leading to such intending destination. The serial actions integrate into the chain of actions being willfully linked as workable by the free minds which foreseeability were evidenced under the totalities of circumstances.

  Being a natural and probable consequences of those actions related to the facts shown above, …… meet the proof to be knowingly, intentionally, and purposely.”

On the aforesaid basis, P claimed that “[in] accordance to HKU Policy in treating registered post”, the IERF Documents (which the Ds must have known belonged to P’s JD Application) should be kept together with the other documents of his JD Application, and that the Ds should have perused every paper and made sure his JD Application in the file was complete as kept before making a copy of the documents. By omitting the IERF Documents without proper cross-checking when copying the documents and purporting to put forward the Exhibit (as a true copy of his JD Application) and also the Email as the Ds’ affirmation evidence despite “repeatedly contending by [P] that [the Ds] intend to destroying or concealing evidence, the IERF documents, before, during, and after the time of the [Yu 1^st Aff] and [the Exhibit] were produced …… [the Ds] let the consequential sequences of the above events happen to go to the final intending end point. Produced a false instrument the false evidence [the Exhibit]. While discovering [the Exhibit] is not a true copy of [P’s], if it is even without the allegation set forth above, [the Ds] should have forthwith admitted the case to [P] and filed the withdrawal of the same in good faith”.

33.  On 7 October 2015, the Ds filed Ms Lai’s 1^st affirmation to oppose the Exhibit Summons (“Lai 1^st Aff”). Ms Lai noted P complained that the Exhibit being a copy of his JD Application was “false” as it did not contain the IERF Documents. Ms Lai exhibited to the Lai 1^st Aff an extract from the website of the Law Faculty, HKU that provided instructions on how to apply for the JD Programme (“Application Instructions”). Under “Supporting Documents” of the Application Instructions, (a) it was sufficient to provide original or certified copies of academic transcripts and not necessary to provide the IERF Documents, and (b) applicants were instructed to include their JD Application reference number when sending supporting documents. Ms Lai did not know whether P quoted his application number when sending the IERF Documents. If his application number was not quoted, given the large number of applicants and different programmes in HKU, the IERF Documents might not have been allocated to the correct programme. Ms Lai confirmed she had not received or seen the IERF Documents, and she had made enquiries with the front desk but they had not been able to locate any such documents. In any event, applicants were informed in the Application Instructions all documents, once submitted, would not be returned and would be destroyed if the application was unsuccessful. Further, Ms Lai was advised that just because the copy of P’s JD Application did not contain the IERF Documents, this did not mean it was false evidence. Ms Lai asked the court to dismiss the Exhibit Summons.

34.  On 15 October 2015, the Ds filed a summons against the P for an order that “[unless P] do comply with the [Ho Order] and pay [the Ds’] costs of HK$8,500 within 14 days from the date hereof, all the proceedings in this action be stayed” with costs (“Unless Summons”).

35.  On 22 October 2015, P filed his 5^th affirmation in support of the Exhibit Summons (“P’s 5^th Aff”):

(a) P claimed the IERF Documents were an integral part of his JD Application which should be included in the Exhibit, and if MsLai had no knowledge of the contents of the IERF Documents, she could not have known they were not within the scope of the required “Supporting Documents”, and as a matter of evidence her assertions on matters which she did not have personal knowledge were inadmissible.

(b) What Ms Lai alleged in the Lai 1^st Aff was not what was said in the Email and in the Yu 1^st Aff which referred to the Exhibit as a true copy of P’s JD Application, but in fact P’s JD Application should comprise the Exhibit and the IERF Documents.

(c) P disagreed the Ds had the right to “destroy the documentary evidence once application failed” because such administrative power was subject to “duty of evidence preservation”:

“At common law litigants who foresaw a possible lawsuit are obliged to avoid Spoliation of Evidence by the law of court proceedings. Particularly, [Ms Lai] and [the Committee] had been noticed of the litigation, reminded of the obligation, and they acknowledged to re-assure P the documentary evidence were being retained by the requirement of the policy of HKU. …… After all, [the Ds] are bestowed with no privilege, as paragraph 5, to deprive P’s rights in the use/usage of his own property, the IERF documents as the tangible documentary evidence in the lawsuit; [the Ds] breached the obligation to preserve evidence, and thus violated spoliation of evidence.”

P reminded that when he told the Ds to preserve all papers of his JD Application for which they signed receipt for the purpose of discovery of documents in the present action, “including certificate sent to you from IERF (you have signed receipt)”, MsLai replied “Noted with thanks”.

(d) It was illegal for the Ds to adduce the Exhibit without the IERF Documents as evidence. They could only do so if the IERF Documents were not admissible evidence in the present action by virtue of such documents being “not within the scope of sufficient and or necessary part of [P’s JD Application]” and “not within the scope of the “Supporting Documents” for [P’s] application”. But since the Ds had not seen the IERF Documents and did not have personal knowledge of their contents, they could not have reached such conclusion. If MsLai were able to reach such conclusion, her assertion that she had not received or seen the IERF Documents must have been lies.

(e) Likewise, if the IERF Documents would be destroyed as provided in the Application Instructions, then such documents would have been part of the documents for P’s JD Application in the first place. There was “a logic flaw of dichotomy” since Ms Lai asserted that the IERF Documents were not part of the true and complete original set of P’s JD Application.

(f) “By Hong Kong Evidence Ordinance Chapter 8, Section29, certificate of posting of documents, [the Ds’] receiving the IERF Documents shall be admitted in any criminal or civil proceedings before any court on its production without further proof.” But if the IERF Documents had been submitted, given the high qualification certified therein, P’s JD Application “should not be unsuccessful”. It would only be unsuccessful if “the IERF documents had been deprived of its usage as certification of [P’s] qualification”.

(g) The Ds by the Yu 1^st Aff produced the Exhibit under affirmation as a true copy of P’s JD Application. It was false evidence because they must have known since 4 February 2015 that it should have included the IERF Documents, and the Ds left it uncorrected.

36.  The Exhibit and Unless Summonses were returnable to be heard before me on 28 October 2015 (“Hearing”). I reiterate that the hearing of the Notice of Appeal was returnable before DHCJ Kent Yee at the Appeal Hearing on 17 November 2015, and that the substantive hearing for the Security for Costs Summons was returnable before Master Ho on 2March 2016.

IV. UNLESS SUMMONS

37.At the Hearing, by consent of both P and Ms Yu, solicitor for the Ds, the Unless Summons was adjourned to be heard at the same time as the hearing of P’s Notice of Appeal at the Appeal Hearing with costs reserved.

V. P’s SUBMISSIONS

38.  In his oral submissions, P emphasised the DHL Confirmation (which set out the recipient and its address, and specified that the envelope of documents was for P’s JD Application) and section 78 of the Evidence Ordinance Cap 8 proved beyond doubt that the Ds had received the IERF Documents (which were part of the documents for P’s JD Application), and since the JD Application comprised the Exhibit and the IERF Documents (which the Ds had received), the Exhibit was not a true copy of his JD Application. P contended that as a result the Exhibit and the Yu 1^st Aff that asserted otherwise were false evidence, and that it necessarily followed the Ds had destroyed and concealed relevant evidence, and had refused to disclose true evidence in the present action. P argued the Exhibit being false and fabricated evidence should be “remitted” and not be used by the Ds for the purpose of the Security for Costs Summons. Further, the Ho Order that rested on such false premise could not be supported.

39.  P further claimed the Ds should have notified him early in respect of any defence arguments they would rely on, but they failed to do so and in fact confirmed his case. Indeed, the matters raised in the Lai 1^st Aff would not help the Ds because they were not in a position to say the IERF Documents were irrelevant when they claimed they had not sighted them.

VI. DISCUSSION

(a) Order that the Exhibit be inadmissible

40.  Order 14A rule 1 of the RHC provides as follows:

“(1) The Court may upon the application of a party …… determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that –

(a) such question is suitable for determination without a full trial of the action; and

(b) such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein.”

41.  P claimed his JD Application comprised the Exhibit and IERF Documents and by presenting the Exhibit as a true copy of his JD Application the Ds “knowingly, purposely and intentionally” destroyed or concealed the IERF Documents, so the Exhibit (which the Ds wrongfully asserted was a true copy of his JD Application) being a false, forged and/or fabricated instrument should be “ordered inadmissible” under Order 14A of the RHC.

42.  On the other hand, Ms Yu submitted the Yu 1^st Aff was filed in support of the Security for Costs Summons, and the purpose of the Exhibit was simply to give contextual background to the Email (which was the subject matter of P’s claim in the SoC and which the Ds said was not defamatory and was only sent to P and not other third party(ies)), and the lack of merits in respect of P’s claim over the Email was a relevant consideration as to why the Ds were entitled to security for costs. But Ms Yu claimed whether or not P’s JD Application included the IERF Documents was quite irrelevant to the Ds’ application for security for costs and to P’s claim for defamation/discrimination, and such question of fact would not resolve the present action or any issue therein.

43.In my view, the questions as to whether or not (a) the Exhibit was a false instrument or a forged/fabricated document and (b) the Ds “knowingly, purposely and intentionally” destroyed or concealed the IERF Documents and thereby failed to include them in the Exhibit were neither questions of law nor questions of construction of document, and hence these questions would not fall within the scope of Order 14A rule 1 of the RHC. These questions would necessarily have to be answered and determined upon consideration of the factual context by assessing the evidence to be adduced by P and also by the Ds. Here, there were conflicting allegations of fact, ie P asserted the IERF Documents had been delivered to the Ds, but the Ds disagreed with Ms Lai saying she had not received/seen them and enquiry with the front desk revealed they had not been able to locate such documents. Plainly, the Order 14A procedure would not be appropriate for the determination of the above questions. Hong Kong Civil Procedure2016 stated as follows:[2]

“…… Where the issues of fact are interwoven with the factual issues raised, it will be undesirable for the court to split the legal and factual determination, for to do so would in effect be to give legal rulings in vacuo or on a hypothetical ruling, which the court will not do. ……

     Where there are conflicting allegations of fact, or issues of fact interwoven with the legal issues to be determined, the O.14A procedure is not appropriate. ……”

44.  Likewise, the question whether or not the Exhibit should be admissible evidence for the Security for Costs Summons and/or Notice of Appeal is also not a question of law or question of construction of documents. The admissibility or otherwise of a piece of evidence for the purpose of court proceedings is a procedural matter that rested on a host of factors, including the factual, legal and procedural context in which the piece of evidence was intended to be introduced, its authenticity, and its relevance to the issues in dispute in the court proceedings. The Order 14A procedure would not be appropriate for determining this question.

45.  I am also not satisfied with the determination under Order 14A of the RHC as proposed by P would be final as to the entire cause or matter or any claim or issue therein. It must be remembered that the “cause or matter” was P’s claim in the SoC, and “any claim or issue therein” referred to those in the SoC, and not merely those in the Security for Costs Summons and/or Notice of Appeal. I find the questions referred to in paragraphs 43 and 44 above were not only sensitive to the facts, they also would not finally determine important issue(s) or dominant feature(s) of P’s cause or matter in the SoC. Even if the court were to order redaction of the Exhibit from the Yu 1^st Aff by holding it to be inadmissible evidence, it would not have resolved the entire cause or matter or any claim or issue raised in the SoC. After all, with or without the Exhibit, the tribunal dealing with “cause or matter” would still need to determine whether the Email was defamatory, whether the Email was actuated by malice, whether it was sent to any party other than P, whether the Email was discriminatory against P, and/or whether it was in breach of various statutes and international conventions.

46.  Indeed, it was unclear whether holding the Exhibit inadmissible would finally determine or dispose of even the Security for Costs Summons. In the Yu 1^st Aff, other than reference to the Exhibit, the Ds deployed other arguments, including their suggestions that P’s claim against them in the SoC were unmeritorious, that P resided outside this jurisdiction and appeared to have no available assets in Hong Kong to meet any costs order that might be made against him, and that there was no reciprocal enforcement of judgments between Hong Kong and Taiwan (and United States).[3] Although P disagreed with such contentions and raised counter-arguments, eg Ds’ alleged abuse in purporting to stifle his claims, the alleged conflict with international law and human rights in respect of the Ds’ “Jurisdiction Residence” ground etc, [4] the parties’ respective contentions would still have to be ventilated and determined at the hearing of the Security for Costs Summons, and there would be no practical savings in time and costs in dealing with the issue of the admissibility or otherwise of the Exhibit on a satellite basis.

47.  I note the court also has a residual discretion as to whether or not to embark on a determination of a question under Order14A of the RHC even where (a) the question of law or construction was one that was suitable for determination without a trial and (b) its determination would finally determine (subject to a possible appeal) the entire cause or matter or any issue or claim there, and the court may decline the application if it takes the view that there is no great saving of time and costs in acceding to it.[5]

48.  As explained above, decisions on the questions in paragraphs43 and 44 above would not finally determine the entire cause or matter or any issue or claim raised in the SoC. Further, P raised the same questions and deployed the same arguments for the purpose of the Security for Costs Summons and/or the Notice of Appeal (against the Ho Order in respect of the Judgment Summons). What P sought to do by the Exhibit Summons was to “remit” and remove the Exhibit as evidence before the court for the purpose of the Security for Costs Summons and/or Notice of Appeal. But even if there were any merits to P’s suggestions that the relevant parts of the Yu 1^st Aff that referred to the Exhibit and/or the Exhibit itself were falsities and/or lies, and that such offending parts of the Yu 1^st Aff ought to be struck out (which suggestions the Ds disputed), the Security for Costs Summons and the Notice of Appeal were yet to be substantively argued by the parties and heard/determined by the court.

49.  Pending the hearings of the Security for Costs Summons and Notice of Appeal, I do not see any sufficient basis for P to restrict the Ds’ liberty to file affirmation evidence with exhibits that the Ds considered appropriate to support the Security for Costs Summons and the Judgment Summons[6] simply on the basis that P considered them to be falsities and lies. Further, the admissibility or otherwise of the Exhibit and the Yu 1^st Aff being evidence put forward by the Ds for the purpose of the Security for Costs Summons and the Judgment Summons (and hence for the Notice of Appeal) should be properly ventilated by the parties and, where appropriate, adjudicated by the court seized of those applications. P should raise his criticisms and objections as to the Exhibit and the Yu 1^st Aff at the hearings of the Security for Costs Summons and Notice of Appeal, and not by way of satellite preemptive summons to ward off the Yu 1^st Aff and the Exhibit.

50.  I particularly note that for the Security for Costs Summons, P’s “Statement in opposition to counter the Summons for Security for Costs” sought to persuade the court hearing such summons that the Ds deliberately destroyed and concealed the IERF Documents, and on such basis asked the court to draw adverse inference against the Ds’ application for security for costs.[7] Likewise, for the purpose of the Judgment Summons, P made arguments in a similar vein.[8] Indeed, his Notice of Appeal and the P 3^rd Aff filed in support thereof (but without leave of the court) rested significantly on such complaints in relation to the Exhibit and Yu 1^st Aff, and the alleged destruction or concealment of the IERF Documents.[9] This plainly demonstrated my conclusion in the above paragraph that P’s criticisms and objections to the Exhibit should be aired at the hearings of the Security for Costs Summons and Notice of Appeal, and not in a satellite and duplicitous manner by way of the Exhibit Summons and the P 4^th Aff.[10]

51.  In all the circumstances (including the analysis in Part V(b) below), I am not persuaded I should accede to P’s application for the proposed order under Order 14A of the RHC in the Exhibit Summons.

(b) Order that “[the Exhibit] admitted in evidence be impounded”

52.  Section 78 of the Evidence Ordinance Cap 8 provides as follows:

“Whenever any forged document or false instrument has been admitted in evidence by virtue of this Ordinance, the court or the person who has admitted the same, may, at the request of any party against whom the same is so admitted in evidence, dirct that the same shall be impounded and be kept in the custody of such officer of the court or other proper person, for such period, and subject to such conditions as to the court or person may seem meet.”

53.  Ms Yu noted that in any event P did not dispute the documents in the Exhibit were part of his JD Application, and his complaint was that it should also include the IERF Documents. But Ms Lai had explained that at the material time she had not seen/received the IERF Documents. Ms Yu therefore submitted the Exhibit was P’s JD Application according to the Ds’ records, and was not false. On such basis, even if P’s JD Application should have included the IERF Documents (which the Ds denied), Ms Yu argued that the Exhibit was at most incomplete but not false. Ms Yu contended it was unclear why P wanted to “impound” the Exhibit, which (according to the Ds’ records) was merely a copy of P’s JD Application. Ms Yu submitted this reflected P’s misunderstanding of the effect of section 78 of the Evidence Ordinance Cap8.

54.  It appeared P made the application for “impounding” the Exhibit on the basis there could not have been any dispute that the Ds did receive the IERF Documents as part of the documents for his JD Application, so in putting forward the Exhibit and making the assertion in the Yu 1^st Aff that the Exhibit was a true copy of P’s JD Application the Ds must have “knowingly, purposely and internationally” destroyed and concealed the IERF Documents which they had received, and on the basis of such deliberate destruction or concealment the Exhibit was unquestionably a falsity, forgery and/or fabrication, and the assertion in the Yu 1^st Aff that the Exhibit was a true copy of P’s JD Application was a given lie.

55.  But unless this court is able to come to clear findings of fact on the available affirmation evidence that (a) the Ds received the IERF Documents knowing they were part of P’s JD Application, and (b) the Ds deliberately destroyed and concealed the IERF Documents, there would be little basis at this interlocutory stage (ie before the substantive hearings of the Security for Costs Summons and the Notice of Appeal or perhaps even trial) to rule on the admissibility or otherwise of the Exhibit and the corresponding parts of the Yu 1^stAff that referred to such exhibit.

56.  Whilst P strongly relied on the DHL Confirmation to demonstrate the IERF Documents had been delivered to the Ds on 4February 2015, Ms Lai said she had not received/seen the same and enquires with the front desk did not locate the IERF Documents. MsLai explained that unless an applicant specified his JD application number when sending the supporting documents, then given the large number of applicants and different programmes in HKU, the supporting documents might not be allocated to the correct programme. Here, the DHL Confirmation made no reference to P’s JD Application number 1100254883 and only referred to “Piece IDs” of “JD0030162897000026”. No explanation was forthcoming from P as to why “JD0030162897000026” was specified instead of his JD Application number. I further note that P only made a bare assertion that his JD Application number was included in his own narrative annexure exhibited to the P 4^th Aff. I am not satisfied the DHL Confirmation provided irrefutable proof that P did specify his JD Application number on the documents sent by DHL.

57.  That being the case, and given Ms Lai’s aforesaid explanation and the Ds’ denial of any destruction or concealment of evidence,[11] question immediately arose whether (even if the IERF Documents had been delivered to and received by the Ds)[12] there had been any knowing, purposeful and/or intentional destruction or concealment of the IERF Documents. In my view, it is not a question that can be resolved on the available affirmation evidence outside the context of the pending applications under the Security for Costs Summons and Notice of Appeal. I bear in mind that in respect of allegations of “falsities”, “lies”, “forgery”, “fabrication”, “fraud”,[13] “illegality”[14] and deliberate “destruction and concealment”, such allegations must be plainly established and the cogency of the basis relied upon must be assessed by examining the particular factual matrix and by applying the standard of the balance of probabilities taking into account 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 would conclude that the allegation is established.[15]

58.  But P argued that on 13 and 22 April 2015 he had asked the Ds to preserve all documents he sent for his JD Application as evidence for the present action and for his copying/collection, and that on 4May 2015 he asked that none of his papers (including the IERF Documents for which the Ds had signed receipt) should be discarded.[16] However, before such communication on 4 May 2015, the Law Faculty, HKU had already written to P on 27 April 2015 to state that P’s documents comprised qualification (1sheet), working experience (8 sheets) and academic achievement (2sheets) including the 4 invention patents certificates (6 sheets), and they would be returned to P.[17] The Ds made no reference to the IERF Documents as part of P’s documents for his JD Application or as part of the documents kept by them for return to P. Thus having made the position clear and in the absence of testing and assessing the evidence of the deponents, I am unable to read Ms Lai’s response of “Noted with thanks” to P’s communication dated 4 May 2015 as being sufficient admission that contradicted Ds’ case.

59.  In light of the above discussion and the analysis in PartV(a) above, and outside of the context of the Security for Costs Summons and Notice of Appeal, I am unable to conclude with confidence on the affirmation evidence before me that the Ds deliberately destroyed and concealed the IERF Documents and then presented the Exhibit as forged document or false instrument. Indeed, P did not even begin to show a case of forgery. Although the question of the admissibility of the Exhibit and the corresponding parts of the Yu 1^st Aff that referred to the Exhibit should be reserved for consideration and, where appropriate, for determination at the hearings of the Security for Costs Summons and Notice of Appeal, I agree there was much to be said for Ms Yu’s submission that even on P’s own case (which the Ds disputed) the Exhibit was incomplete rather than false since P accepted the documents therein were part of the documents he submitted for the JD Application. As to whether the Exhibit was complete or not, even if the IERF Documents had been delivered to and received by the Ds, there was dispute as to whether or not they were received by the Ds as part of P’s JD Application by proper earmarking thereon with P’s JD Application number. This would impact on the further dispute as to whether or not there was improper and/or deliberate destruction or concealment of the IERF Documents. I am not satisfied that any order should be made under section78 of the Evidence Ordinance Cap8. As for the other arguments raised by P in the P 5^th Aff, P (if he so wished) should deploy and raise them at the hearings of the Security for Costs Summons and Notice of Appeal.

60.  In any event, as pointed out by Ms Yu, the Exhibit was just a set of copy documents (irrespective whether they were or were not a true copy of P’s JD Application) and not originals, and it is meaningless to “impound” copies. Further, subject to consideration and, where appropriate, determination by the courts hearing the Security for Costs Summons and Notice of Appeal, a ruling in due course on the admissibility or otherwise of the Exhibit as evidence would be sufficient, and it is wholly unnecessary and inappropriate for an order to be made under section 78 of the Evidence Ordinance Cap8.

(c) Order to dismiss the Ho Order

61.  By the Ho Order dated 17 August 2015 and sealed on 21 August 2015, Master Ho dismissed P’s Judgment Summons. It appeared that P sought to have the Ho Order “dismissed” or “set aside” under Order 19 rule 9 of the RHC because it was obtained on the basis that the Exhibit had been admitted in evidence (when it should have been remitted) and that Master Ho had been “defrauded”.

62.  Order 19 rule 9 of the RHC provided that “[the] Court, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order”.

63.  As Ms Yu submitted, the reference to “judgment entered in pursuance of this Order” (ie Order 19 of the RHC) was judgment in default of pleadings. But the Ho Order was an interlocutory order that dismissed P’s Judgment Summons, and not any judgment in default of pleadings that fell within Order 19 rule 9 of the RHC. In the circumstances, there is no jurisdiction under Order 19 rule 9 of the RHC to “dismiss” or “set aside” the Ho Order.

64.  In any event, since P had lodged the Notice of Appeal against the Ho Order, and such appeal is due to be heard at the Appeal Hearing, it is wholly inappropriate for P to circumvent the hearing of the Notice of Appeal to make a preemptive application to dismiss the Ho Order. Moreover, since this court in dealing with the Exhibit Summons does not sit on appeal against the Ho Order under Order 58 of the RHC, and there is no basis for this court to “dismiss” or “set aside” the Ho Order.

VII. CONCLUSION

65.  By reason of the above matters, P’s application by the Exhibit Summons was devoid of merits. I therefore order that without prejudice to any objection that P may wish to raise as to the admissibility of the Exhibit as a true copy of P’s JD Application for the purpose of the Security for Costs Summons and Notice of Appeal, the Exhibit Summons be dismissed. There is no reason why costs should not follow event. I grant a costs order nisi that P do pay the Ds costs of the Exhibit Summons to be summarily assessed and paid forthwith.

66.  The Ds had lodged and served their statement of cost for summary assessment. For the purpose of the summary assessment of costs, I grant the following directions:

(a) if no application is made to vary the costs order nisi within 14days from the date hereof, (i) leave for P to lodge and serve succinct summary of objections of not more than one page in respect of the Ds’ statement of costs within 7 days thereafter, and (ii) unless otherwise directed, the summary assessment of costs would be by paper disposal;

(b) if application is made to vary the costs order nisi within 14days from the date hereof, (i) the directions in (a)(i) above shall stand and apply, and (ii) the application for variation of the costs order nisi and (where appropriate) summary assessment of costs shall be heard before me in chambers (open to the public) on a date to be fixed not before 28 days from the date hereof with half hour reserved.