NUMERIC CITY LTD v. LAU CHI WING

DCMP 2850/2015

MISCELLANEOUS PROCEEDINGS NO 2850 OF 2015

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DECISION

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1.  The applicant (“Numeric City”) applies for leave to appeal against my refusal of its application (“Originating Application”) for committing the respondent (“Lau”) to prison for contempt of court in making a false statement, namely, his witness statement dated 31 March 2014 filed in DCCJ 1347/2013 (“Lau’s Statement”) without an honest belief in its truth.

2.  In DCCJ 1347/2013, a Madam Shi (“Shi”) claimed against Numeric City for possession of a property in Causeway Bay (“Property”) which in turn was the subject property of a tenancy dispute in DCCJ 3996/2011 in which a Madam Chan (“Chan”) claimed arrears of rent from Lau.  In DCCJ 3996/2011, Lau filed a homemade defence admitting himself to be a tenant of the Property (“Lau’s Defence”). 

3.  Lau served as one of Shi’s witnesses and gave evidence in DCCJ 1347/2013.  This time Lau retreated from the position he took in Lau’s Defence and alleged in Lau’s Statement that he was in fact not a tenant of the Property and explained, inter alia, that his admission to have rented the Property from Chan in Lau’s Defence was made out of a “sense of bitterness” (發晦氣) and that the payments he made to Chan were in fact gratuitous payments for Chan’s support of her mother rather than payments for the use of the Property. 

4.  DCCJ 1347/2013 was tried by Deputy District Judge K W Wong.  In his judgment dated 30 July 2015 (“Judgment”), DDJ Wong found Shi, Lau and another witness of Shi to be untruthful witnesses and their evidence incredible and unreliable.  More pertinently, he found Lau to be a tenant of the Property.

5.  In paragraph 83 of the Judgment, DDJ Wong comments that Lau may be criminally liable in making inconsistent statements verified by statements of truth and states that if action is to be taken on the matter, Numeric City should do so pursuant to Order 41A, rule 9 of the Rules of the District Court (“Judge’s Remark”). 

6.  In an ex tempore ruling of mine (“my ruling”), I dismissed the Originating Application with costs against Numeric City, hence this leave application.

7.  Section 63A of the District Court Ordinance, Cap 336 provides that leave will be granted if:-

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.

8.  In KNM v HTF (HCMP 288/2011), unrep., 7 September 2011, Hartmann and Fok JJA (as they then were) had this to say:-

“ 8. Leave to appeal shall not be granted under section 63A of the District Court Ordinance unless this court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice that the appeal should be heard.

9. The relevant test of whether an appeal has a reasonable prospect of success under section 63A is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”.”

9.  When it comes to findings of fact made by a trial judge, the Court of Appeal would only reverse a finding of primary fact if it is satisfied that the finding is plainly wrong.  If not so satisfied, it would defer to the trial judge’s conclusion even if in some doubt as to its correctness.  See Ting Kwok Keung v Tam Dick Yuen & Others (2002) 5 HKCFAR 336.  Note also the Court of Appeal’s discussion of the relevant principles on an appeal on fact in Singh Harjit v Determination Business Limited trading as Muse Studio (CACV 68/2015) at §§6-9 and China Gold Finance Limited v CIL Holdings Limited (CACV 11/2015), unreported, 27 November 2015 at §§11-24.

10.  Numeric City’s leave application is based on the following grounds:

(1) I wrongly concluded that the finding of DDJ Wong in DCCJ 1347/2013 as per the Judgment could only be regarded as a finding on proof of balance of probabilities, there being a failure on my part to give adequate consideration to the Judge’s Remark;

(2) I wrongly concluded that Lau was only disbelieved by a civil court and there is nothing else to prove the falsity of the Statement to the requisite standard of proof beyond reasonable doubt when:

(i) Lau’s Statement in which Lau denied that he was a tenant of the Property is completely contradictory to Lau’s Defence in which he admitted otherwise so that Lau’s Statement and Lau’s Defence cannot be both true;

(ii) Lau’s explanation for his admission to be a tenant in Lau’s Defence does not make sense and is clearly incredible;

(iii) Lau’s admission to be a tenant in Lau’s Defence tallies with Chan’s evidence in DCCJ 1347/2013;

(iv) DDJ Wong in DCCJ 1347/2013 found Lau to be a tenant of the Property; and

(v) Lau has not put in evidence to contest the contention that Lau’s Statement is a false statement.

(3) I did not articulate in my ruling in which respect there is a reasonable doubt as to the falsity of Lau’s Statement;

(4) The evidence herein shows Lau’s Defence to be a true statement. Even if both Lau’s Statement and Lau’s Defence are both false, Lau has still committed contempt of court for making the false Lau’s Statement.

First Ground

11.  Numeric City’s reliance on the Judge’s Remark is misconceived when it is no more than a general comment that Lau may have brought upon himself criminal liability by making contradictory statements in various court documents without specific reference to any particular document in respect of which criminal liability may be attached to Lau.  Mr Cheung, Counsel for Numeric City, submits that it is evidently clear that DDJ Wong must have had in mind Lau’s Statement.  This might or might not be so.  Insofar as Numeric City suggests that the Judge’s Remark indicates that DDJ Wong was satisfied beyond reasonable doubt that Lau had made a false statement by way of Lau’s Statement without an honest belief in its truth, however, the same must be rejected.

12.  As said in my ruling, it is beyond dispute that the court in DCCJ 1347/2013 must have applied the civil standard of proof in coming to a finding.  This is reflected in the tenor of the reasoning in the Judgment and, in particular, paragraph 76 of the Judgment which cites the fact that the court had carefully considered the evidence adduced by both parties before coming to a finding as to whose evidence to prefer.  In my view, the underlying basis of the finding is clearly one of preponderance of evidence commensurate with the civil standard of proof.

13.  All in all, nowhere in the Judgment can I find any indication of the court there having been satisfied beyond reasonable doubt that Lau had made a false statement before rejecting his evidence as being incredible and unreliable.  In any event, as the judge now seized of the matter, I am duty bound to independently assess all available evidence before me.  That I may share the Judge’s Remark does not suffice for the present purpose.

14.  In paragraphs 23 to 25 of my ruling, I stated my observation from reading the transcript of Lau’s evidence given before DDJ Wong that Lau had on several occasions exercised the right to silence in the face of questions in cross examination that might invite self-incriminating answers. This served to highlight the lack of clear evidence (such as Lau’s own admission), other than the trial judge’s finding on a balance of probabilities, to show Lau’s Statement to be a false statement made without an honest belief in its truth.

15.  Indeed, the highest Mr Cheung can put in his written submission is that the Judge’s Remark indicates that the trial judge is of the view that the evidence may also be sufficient to prove, on the criminal standard, that Lau had made a false statement.  That being so, it remains for this court to decide on the basis of all available evidence, aside from the Judge’s Remark, as to whether it is beyond reasonable doubt that Lau’s Statement is a false statement made without an honest belief in its truth.

16.  In the circumstances, I see no merits in the First Ground.

Second Ground

17.  This ground relates to my demur (without ruling) at paragraph 27 of my ruling with Mr Cheung’s proposition that, when someone gives two statements that are inconsistent with each other, one of them must be false absent good explanation.  I said I could not exclude any possibilities that inconsistent statements could be both true or even both false. 

18.  For the present purpose, Mr Cheung submits that there can only be three permutations out of this scenario, namely, that the two statements are both true; that one is true and the other false; and that they are both false.  As Lau’s Defence and Lau’s Statement are completely contradictory to each other, they cannot be both true.  As there is no evidential basis for saying that the two statements are both false, the only realistic permutation is that one of them is true and the other false.  Mr Cheung then goes on to analyse the contents of the two statements of Lau before submitting that there is nothing which may cast any reasonable doubt on Lau’s admission in Lau’s Defence that he was a tenant of the Property so that it must follow, beyond any reasonable doubt that what Lau said in Lau’s Statement is untrue.   

19.  Interesting as this analysis a priori may be, there is an important fact that Mr Cheung has failed to highlight from the Judgment, that is, Chan’s claim for arrears of rent against Lau in DCCJ 3996/2011 (in which Lau’s Defence was filed) was settled without trial.  What Lau said in Lau’s Defence or his evidence in support thereof was therefore never put to test or challenge and there is no way one can say with certainty, or for that matter a high degree of probabilities, that what Lau said in Lau’s Defence must be true in every sense of the word. 

20.  In dismissing as incredible Lau’s explanation in DCCJ 1347/2013 for retracting his admission in Lau’s Defence, all Mr Cheung manages to do is to refer to the apparently unequivocal terms of Lau’s admission in Lau’s Defence and the cheques he exhibited as evidence of rental payment in DCCJ 3991/2011.  With these, the highest one can put it is that it is more probable than not that Lau’s Defence reflects the truth.  But this would not suffice for the purpose of proving beyond reasonable doubt that Lau’s Statement is a false statement made without honest belief in its truth.

21.  Indeed, Mr Cheung accepts that there could be at least a third explanation for Lau’s occupation of the Property, namely, that Lau’s occupation of the Property was pursuant to Chan’s licence, with or without the authority of the registered owner.  However, he invites this court to dismiss the same as a mere theoretical possibility rather than a real one.  In so doing, he refers to the lack of evidential basis for one to say such a possibility could have existed and that if it did represent the truth Lau would have said so.

22.  Suffice it to say I am unable to dismiss the possibility of there being some other explanation for Lau’s occupation than Chan’s case by reference to the limited evidence available to this court.  In any event, the mere fact that Lau’s occupation of the Property, which lasted for a fairly long period, could have been explained by something other than a simple tenancy agreement suffices for this court to say Lau’s Defence, or for that matter Chan’s statement of claim, does not necessarily represent the whole truth even if there is some truth in it.

23.  That being so, Mr Cheung’s conclusion is at best one drawn from a philosophical exercise without evidential basis and as such must be rejected insofar as the same is proffered as a ground of appeal.  

Third Ground

24.  This ground is premised on Mr Cheung’s criticism that I had not articulated in my ruling as to any reasonable doubt on the falsity of Lau’s Statement.  I do not propose to defend the way I presented my reasons in my ruling other than saying that there is no need to explain the obvious. 

25.  As said in paragraphs 23 and 24 of my ruling, if a civil court is in a position to elevate a conclusion reached on a civil standard to one that can only be arrived at using the criminal standard of proof, there must be something else but that something else is missing in the present case.  Should clarification be required at all, I would say in the other way round that a court cannot jump, without more, from a conclusion as to which witness is to be believed or disbelieved reached on a balance of probabilities to a conclusion that the witness whom the court disbelieves has committed a criminal contempt of court by making a false statement without an honest belief in its truth.  Here, on top of the able analysis and finding of DDJ Wong, all Mr Cheung can point to is the contradictory statement in Lau’s Defence which, for the reasons given above, would not suffice for the present purpose.

26.  At paragraph 26 of my ruling, I said that on the basis of the evidence before me, I might have come to the same conclusion as DDJ Wong did but I would still be applying the civil standard of proof and would never be able to be satisfied beyond reasonable doubt that Lau was in fact making a false statement before the court.   By this, I should not be taken to be saying that in a civil setting, the court can never be satisfied beyond reasonable doubt that one has committed a criminal contempt of court.  Each case turns on its own facts.  All I am saying is that evidence in the present case is not such as to enable this court to come to such a finding.

27.  Mr Cheung submits that in the absence of credible explanation from Lau as to his retraction in Lau’s Statement of the admission in Lau’s Defence, there is nothing which casts any reasonable doubt that Lau’s Statement is false.  This submission is premised on the dichotomy of Mr Cheung’s proposition that one of the two inconsistent statements of Lau must be true (and that what Lau said in Lau’s Defence must be true).  For reasons given above, this must be rejected.  

28.  There is therefore nothing in this ground.

Fourth Ground

29.  Mr Cheung’s proposition here is that even if both Lau’s Statement and Lau’s Defence are both false, Lau has still committed contempt of court for making the false Lau’s Statement.  While this proposition is logically true, the question remains whether Numeric City has proven beyond reasonable doubt that Lau’s Statement is a false statement made without honest belief in its truth.  I do not propose to repeat the reasons for my answer in the negative.  For the present purpose, I need only say that this proposition does not avail Numeric City of any independent ground of appeal with any reasonable prospect of success.

Numeric City need not show this court’s decision to be plainly wrong?

30.  Mr Cheung submits that for leave to be granted to appeal from my decision, Numeric City need only show a reasonable prospect of the appellate court coming to a different opinion because my finding as to whether it is proven beyond reasonable doubt that Lau’s Statement is a false statement made without an honest belief in its truth is not a finding of primary or even secondary facts so as to require Numeric City to show the same to be plainly wrong.  As to the basis for submitting the existence of a reasonable prospect in this regard, Mr Cheung again relies on Lau’s Defence which he believes he has shown to be true.  

31.  Accepting for the present purpose that Mr Cheung is right to say my finding is not a finding of primary or secondary facts, I still do not see a reasonable prospect of the appellate court coming to a different opinion when Numeric City’s case is founded on Lau’s Defence being the true statement.

Conclusion

32.  I am not satisfied that the intended appeal by Numeric City has any reasonable prospect of success.  Accordingly, Numeric City’s application is dismissed.

33.  Numeric City is to pay Lau’s costs of this application, summarily assessed at $23,000 and payable forthwith.