CHANG MING FANG JACQUELINE alias CHANG HWAI YING JACQUELINE v. ZHANG ZI QIANG

   HCA2714/2006

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF FIRST INSTANCE

   ACTION NO. 2714 OF 2006

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BETWEEN

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J U D G M E N T

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Introduction

1.  The plaintiff is the elder sister of the defendant. In this action she sues the defendant in respect of the assault, intimidation and harassment allegedly committed by him from December 2005 to October 2006. Such wrongdoings, the plaintiff says, have caused her to suffer from psychiatric illness. The plaintiff seeks injunctive relief as well as damages, including exemplary and aggravated damages, against the defendant.

2.  It is the plaintiff’s case that the said wrongdoings were committed by the defendant with the aim to pressurize her into lending him money to satisfy his gambling habit. The defendant strongly denies the allegations. His case is that the plaintiff was indebted to him and when he pressed for the repayment of the debt the plaintiff refused to honour her obligations. The defendant maintains that he acted lawfully in pressing the plaintiff for repayment and that the plaintiff has made groundless allegations against him.

3.  It is common ground that this action turns upon the credibility of the evidence adduced by the parties.

Plaintiff’s Evidence

4.  The plaintiff gave evidence in this trial. In addition, two witnesses were called on her behalf — Ms Law Woon Hing (“PW2”) and Mr Kwok Hin Wing (“PW3”).

5.  The plaintiff is a 54 years old divorcee. She is the second eldest of five siblings in the family. She has been living in Hong Kong since 1976. Since 2001, the plaintiff has been working as an instructor at a Nu Skin training centre in Causeway Bay (“the Centre”). It appears that Nu Skin is the brand name for certain health products.

6.  In about 1992, the plaintiff was engaged in divorce proceedings and needed HK$200,000 for legal expenses. Her 4^th brother, Mr Cheung Chi Kin, and youngest brother, the defendant, each lent her HK$100,000 for those expenses. The 4^th brother’s loan was repaid in 1994. In 2002, the divorce proceedings were concluded. In respect of the defendant’s loan, the plaintiff was told by him that it need not be repaid.

7.  In November 1997, the plaintiff obtained another loan from the defendant in the sum of AUS$35,000. In February 1998, she repaid AUS$30,000 to the defendant. In cross‑examination, the plaintiff said that the balance of AUS$5,000 was given to her mother at the instruction of the defendant.

8.  In about October 2003, the defendant called the plaintiff and said that he had lost in gambling and needed HK$50,000. On 21 October 2003, a sum of AUS$10,000 was remitted to the defendant, who was living in Australia having emigrated there in 1988, by the plaintiff.

9.  In about April 2004, there was a similar request for money (HK$50,000) by the defendant due to gambling losses and on 8 April 2004 a sum of AUS$20,000 (equivalent to HK$118,670) was remitted to him by the plaintiff. The plaintiff said that before she made this remittance to the defendant she told him that the HK$100,000 he had lent her would be repaid and she was sending him more money.

10.  In about October 2004, the defendant came to Hong Kong to deal with the distribution of his mother’s estate. He stayed with the plaintiff at her home. He told the plaintiff that he had lost about HK$10 million through gambling in Australia. He was in financial difficulty and under extreme pressure from debt collectors. He was remorseful and promised the plaintiff that he would start afresh and not gamble anymore. The defendant then joined Nu Skin China as a member of the sales staff. In order to help the defendant, the plaintiff gave him HK$10,000 every month and bought him some clothes and other items. In October 2005, when the defendant had managed to build up his business, the monthly payments were deducted by the plaintiff from the defendant’s income.

11.  In November 2005, against the advice of the plaintiff, the defendant went to Macau with a visiting relative. In a matter of days, he lost HK$150,000 at the casino(s). Seeing this, and knowing that the defendant had stopped working at Nu Skin, the monthly payments were ended by the plaintiff.

12.  In the evening of the 4 December 2005, the plaintiff was told by her father, who was staying with her, that he had been pressed by the defendant for money to satisfy his gambling impulse. The defendant had also begun to ask the plaintiff for money and when refused, he raised his voice and abused her with foul language.

13.  Knowing that the defendant had returned to his gambling habit, the plaintiff was in fear of her safety. On 5 December 2005, she instructed the management office not to allow the defendant to visit her at her home and changed the door lock for the same.

14.  On 17 December 2005, the plaintiff received three calls from her family (including one from her father who had returned to Guangzhou) warning her to be careful because the defendant was going to Hong Kong to kill her if she did not give him any money. The plaintiff became very frightened, angry and worried. She was afraid to accept any phone calls.

15.  On 23 December 2005, the plaintiff received a similar call from her cousin who was living in Shanghai. At about 2:30 pm on that day, whilst on her way home, she called her domestic helper and was told that the defendant was waiting for her in the lobby. She became very frightened and, not knowing what to do, called her solicitor to discuss the matter.

16.  At about 5:30 pm, the plaintiff received a call from the defendant who spoke to her in a ferocious manner. She told him to meet her at the coffee shop at Park Lane Hotel in Causeway Bay. Then she discovered that the defendant had left three telephone messages for her. Those messages warned her that she would regret it if she refused to see the defendant — “Zhang Zi Qiang, you don’t answer the call, you would die”. She was shaken by these messages and was very frightened.

17.  During the meeting at Park Lane Hotel, the defendant behaved in a very fierce manner. He demanded AUS$100,000 from the plaintiff. The plaintiff said that she would only help him for a proper purpose. She did not have the cash and asked him to fax her his bank account number. The defendant then left.

18.  From then on, the plaintiff was afraid to accept any calls without caller’s identification. On 2 February 2006, she received a facsimile from the defendant containing his bank account details and she ignored it.

19.  On 14 February 2006, the plaintiff received a call from the defendant who said to her: “What do you want? I have waited two three months without any reply. Want to play?” The plaintiff did not respond to the defendant. She felt helpless and was very worried. The plaintiff accepted in cross-examination that no threatening words were used by the defendant during this incident.

20.  A number of events took place on 16 February 2006. At about 9:30 am, the defendant called the plaintiff and the following conversation took place :

Defendant : ‘… you have still not given me AUS$100,000.’

Plaintiff : ‘I don’t have so much. You want emotional debt, I only have HK$80,000 to HK$90,000 to give you. This is more than sufficient for the emotional debt.’

The defendant then raised his voice and yelled :

‘You treat me as a beggar … If you have no money, sell your Taikooshing flat and give me the money. If you don’t give me money, you will know about death when I go to Hong Kong. I will take you down with me[1].’ A considerable amount of foul language and insults were levelled at the plaintiff in the course of the yelling.

21.  The plaintiff said that she was very afraid after this conversation. She was afraid that the defendant would really harm her.

22.  At about 11:00 am, the plaintiff received a telephone message from the defendant: “Chang Hwai Ying, the game has started, I will come and play with you.”

23.  In the afternoon, when she returned home, the plaintiff found that the defendant was waiting for her in the lobby. She was very frightened and left immediately.

24.  At about 3:00 pm, the defendant went to the Centre. A class was being held at the time. Seeing the defendant, the plaintiff went outside to the lift lobby to meet him together with two instructors who volunteered to go with her to ensure her safety. In order to avoid any interference with the operation at the Centre, the plaintiff asked the defendant for his bank account number, to which the defendant replied that he did not have it with him and asked why he was not allowed to go to the plaintiff’s home. The plaintiff said that it was because he had started gambling again. The defendant replied that it was none of her business and told the two instructors that the plaintiff owed him money and that she had pushed her father to go back to the Mainland. The defendant then left. The plaintiff accepted in cross-examination that she had not been threatened by the defendant during this incident.

25.  At 3:19pm, 3:30 pm and 3:45 pm, three telephone messages were left for the plaintiff by the defendant. Those messages (“the 3 Messages”) were recorded by the plaintiff at the advice of her friend. The recording was replayed during the trial and a transcript of the same can be found at D175E. In short, the defendant was evidently in a state of fury. Much foul language was used. He accused the plaintiff of insulting him by telling other people that he was a gambler. An implied threat was repeatedly made that he would bad-mouth the plaintiff.

26.  The plaintiff was cross-examined about the recording, especially on the reason for its very late disclosure. The plaintiff explained that a copy of the recording was given to her solicitor within days after it was made. She only knew two weeks ago that it was lost when she attended a meeting with her solicitor. She then asked her friend for help and her friend managed to retrieve the recorded messages from his computer.

27.  The next incident happened on 29 August 2006 when the defendant went to the Centre again and caused a disturbance. The details of this incident were given by PW2 (see below). However, four points should be noted from the plaintiff’s evidence. Firstly, the plaintiff said that during the incident the defendant was holding a document which he said was an IOU in his favour signed by her. Secondly, she said that she was very frightened during the incident and that she was shaking. Thirdly, the plaintiff had to call the police twice that day. The police were called during the disturbance at the Centre. Later, after the defendant had left the Centre, the plaintiff was told by her colleagues that the defendant remained outside the building. Being in a state of fear and not knowing what to do, the plaintiff summoned the help of the police again. Fourthly, the plaintiff said in cross‑examination that although the defendant did not use threatening words towards her during this incident, she found his demeanour threatening.

28.  On 22 September 2006, the plaintiff went to the police with her Counsel and gave a statement in respect of the criminal intimidation by the defendant.

29.  In the morning of the 20 October 2006, the Centre was visited by a man wearing a dark suit. He put up two posters outside the Centre, splashed the outside of the Centre with blue paint and took a photograph before leaving. The whole incident took less than one minute and was captured by a CCTV camera. The recording of the incident was replayed during the trial.

30.  A copy of the poster can be found at D167. According to the plaintiff, the IOU which the defendant was holding on the 29 August 2006 (see paragraph 27 above) was the same document. It appears that the poster was based on an enlarged letter addressed to “Sister Ying” (“Letter A”). Letter A referred to the plaintiff having been abandoned by her husband, her divorce proceedings and her having lived by borrowing from her brother. It also referred to a total of HK$1.1 million having been borrowed and that despite the resolution of the proceedings, no repayment had been made and that the plaintiff was urged to make repayment to relieve the financial hardship of the writer. A photograph of the plaintiff appeared to the right of Letter A. A name card of the plaintiff appeared at the bottom right of the poster. At the bottom left, it was written in different handwriting (a) “Sister Ying had changed her name to Chang Ming Fang”; (b) the plaintiff’s address; and (c) “Upon seeing this, NuSkin Chang Ming Fong quickly call HK no.30776417, otherwise you are responsible for the consequences”.

31.  The plaintiff complains of various symptoms caused by these incidents. She consulted Dr Chan Sai Yin, a psychiatrist, in respect of her symptoms. A report by Dr Chan dated 27 September 2006 is before this court at D267. According to the report, the plaintiff had been seeing Dr Chan since 31 August 2006. She had been much distressed by the defendant’s harassment of her since November 2005. She developed multiple symptoms — insomnia, weight loss, general pains and the tendency to be easily frightened. In particular, her mood was depressed most of the time, with occasional crying, forgetfulness and loss of interest. There was palpitation, chest pain, shortness of breath and stomach bloating whenever the defendant phoned her. She was frequently preoccupied by the worry that the defendant would harm her. As assessed on 31 August 2006, the plaintiff was suffering from “Depressive Disorder”. Anti-depressant, sedative and hypnotic medicine were prescribed for her by Dr Chan. When she was seen by Dr Chan on 20 September 2006, her condition had not improved.

32.  The plaintiff said that the side effect of the medication prescribed by Dr Chan made her uncomfortable. She stopped taking them after two or three times and switched to a tension reliever which was a Nu Skin product. She stopped taking any medication in October 2006 after an injunction was obtained against the defendant.

33.  The plaintiff is still suffering from insomnia and fear when the phone rings.

34.  PW2 was a student of the plaintiff. She also knew the defendant because they were fellow students at the Centre at one time. On 29 August 2006, PW2 was at the Centre attending a training course. At about 4:00 pm, in the course of the training, she heard some commotion outside the Centre. Someone was shouting: “I have to come in”. Through the glass door of the Centre, she saw that some duty leaders (from the Centre) and the defendant were making a lot of noise. The defendant kept saying: “I have to come in. I have to see Chang Ming Fang.” At that time, there were many students at the Centre. They were alarmed by the commotion and began to leave. When the door was opened, the defendant rushed in. A few senior duty leaders attempted without success to block the defendant from coming into the Centre. PW2 said that these duty leaders were worried that something would happen when they tried to block the defendant’s advance. By way of clarification, she said that it was her reading of the situation.

35.  However, when the defendant got to the middle of the Centre he was blocked, this time successfully, by a group of senior students. PW2 said that the defendant had come into the Centre with a briefcase and a rolled-up piece of paper. When he was stopped, he kept waving that piece of paper. It was about 2 ft x 3 ft in size. PW2 did not see it clearly. Many words were written on it but she only managed to see the words “debt owed” written on it. At the same time, the defendant was in an emotional state and kept saying loudly that the plaintiff owed him money, that she did not give any money to her father and that he would put up big posters on the street. At that time, the plaintiff was staying in her room inside the Centre but she could see what was going on through the glass door. The defendant was only 8 to 10 ft from that door.

36.  A few senior students were guarding the plaintiff’s door. The defendant attempted to rush over to the plaintiff’s room a few times but he was stopped by the students. PW2 saw bodily contact between the defendant and students around him. She said that the students were holding out their hands to stop the defendant and used the word “wrestling” to describe what she saw.

37.  PW2 said that the plaintiff was told by the students not to come out of her room. The situation continued for about 20 minutes. Then the plaintiff asked for the police to be called. When the police arrived, the officers spent a long time talking to the defendant who eventually left. However, the defendant remained outside the building. The students had to go up and down the building to monitor the situation. After half an hour, the police were called again but the defendant had already left before they arrived. Later, three people, including PW2, accompanied the plaintiff to go to the police station to make a report.

38.  PW2 said that the incident had caused the plaintiff to be disturbed and worried. She said that the students were accompanying the plaintiff to go to and from the Centre to ensure her safety. They could see from her face that she was very worried and much saddened.

39.  PW2’s evidence was not challenged in cross‑examination.

40.  PW3’s evidence covers the same incident of the 29 August 2006 but with considerably less detail than that given by PW2. He was not cross‑examined. In truth, PW3’s evidence adds little, if anything, to that of PW2.

Defendant’s evidence

41.  The defendant gave evidence and called two witnesses, namely, his father, Mr Zhang Ying Kwai (“DW2”) and a friend, Mr Gary Wang Yi Qiao (“DW3”).

42.  The defendant emigrated to Australia from the Mainland in 1988 when he was 28 years old. There he got married and had three children. He started a computer business in 1993.

43.  Since around 1991, the plaintiff had on various occasions asked the defendant for a loan due to her financial difficulties caused by the state of her marriage and business. The defendant always did his best to help but he never had the mind to keep a record of the loans.

44.  Details of some of loans were given by the defendant. In 1991, he lent the plaintiff a sum of HK$140,000 for her divorce proceedings. In May 1995, the plaintiff asked for a loan and faxed to him details of her account for remittance purposes. On 1 August 1995, the defendant remitted AUS$3,400 to the plaintiff’s account.

45.  In 1996, the plaintiff asked for a loan of AUS$100,000 for the purpose of purchasing stock for her business. At that time, the defendant did not have sufficient money and he had to borrow AUS$35,000 from his good friend, DW3, to make up that sum. For that AUS$35,000 loan, there is an IOU dated 16 March 1996. After he raised the money, the defendant told the plaintiff to come to Australia to collect the same. The money was handed over to the plaintiff in cash by the defendant in his house and in the presence of his wife, father and DW3. When asked in cross‑examination why the money had to be given in cash, the defendant said that the plaintiff needed cash because the sum was large and she did not know how to declare it for tax. The defendant also said that if the Legal Aid Department knew about that sum of money, they would not grant legal aid to the plaintiff.

46.  In 1997, the defendant lent the plaintiff AUS$35,000 to furnishher new office.

47.  In 2001, after a distribution was made from his mother’s estate, the defendant started asking the plaintiff for repayment of the loans. There was pressure from his wife to do so. The plaintiff told him that she would make repayment after she obtained the maintenance under the divorce proceedings.

48.  In 2003, the plaintiff requested the defendant to write a letter to say that he had funded her in her divorce proceedings and her living expenses. The letter was to be used in her divorce proceedings. The defendant asked the plaintiff to write the letter for him to copy. A copy of the letter which was written by the plaintiff and dated 4 June 2003 is at D181 (“Letter B”). The defendant duly copied that letter and couriered it to her. I shall come back to this letter below.

49.  In October 2003, the plaintiff repaid a sum of AUS$10,000 to the defendant. In April 2004, another AUS$20,000 was repaid. These were the only repayments made by the plaintiff.

50.  In September 2004, the defendant returned to Hong Kong to deal with the second distribution of his mother’s estate (he and the eldest sister were the Executors of the estate). The plaintiff was doing very well financially at the time. She requested the defendant to join her team of Nu Skin sales staff to promote the business in the Mainland. The defendant was reluctant to leave his computer business at first but he was persuaded by the plaintiff to assist her for three months after she offered to pay him HK$10,000 per month for the purchase of stock, which was a requirement for all sales staff. After three months, the plaintiff begged him to stay and he eventually left after 11 month.

51.  The defendant’s efforts to seek repayment from the plaintiff intensified from the end of 2003 when the plaintiff’s financial position had improved.

52.  On 23 December 2005, the defendant went to the plaintiff’s home with the intention of asking her for repayment. He was surprised to find himself barred from going up to her flat by the security guards. He waited for the plaintiff in the lobby and called her. As he was unsuccessful in getting through to the plaintiff, he left a message for her. The message was that he had been waiting and wanted to see the plaintiff.

53.  Eventually, the defendant got in touch with the plaintiff and was asked to meet her at the Park Lane coffee shop. When they met, he asked for repayment and to which she promised that she would do so promptly. The meeting was “friendly and peaceful”.

54.  Sometime in February, the defendant called the plaintiff when he had not heard from her about the repayment. He was unable to get through to her on the phone and left a message asking her about the matter.

55.  On 16 February 2006, the defendant was getting impatient with the delay in repayment. He rang the plaintiff from Guangzhou and was told for the first time that she could not return the money. He felt helpless and desperate and thought that he needed to see the plaintiff in Hong Kong to clarify the matter.

56.  When he arrived at the lobby at the plaintiff home, he was again stopped by the security guards. He was very upset. He then went to the Centre to look for the plaintiff. As he stepped out of the lift, the plaintiff walked out of the classroom to meet him and asked him for his bank account number. However, when two of the plaintiff’s colleagues came out of the classroom, she suddenly raised her voice and said that the defendant had gambled away his father’s money. The defendant was bewildered by the accusation and shortly left the Centre.

57.  After he left, he felt very bad over what had happened. He called the plaintiff but could not get hold of her, so he left messages for her. In his witness statement, the defendant stated that he could not recall the exact contents of the messages but that he never had the intention to leave any message of a threatening nature. The messages he left referred to the plaintiff having insulted him, lied about his gambling and that she had been making accusations that everybody around her was bad. I accept that at the time of making his statement the defendant was not aware of the existence of the recording of the 3 Messages.

58.  When he was cross‑examined about the transcript of the 3 Messages, the defendant said that he could not be sure that they were all his words. He said that he was talking nonsense and very angry at the time. He was in a state of confusion due to his anger. He was aware of a software with which one could imitate the voice of another person. When he was asked if he had uttered the expletives, he said that he did not remember and could not say for sure. He was also taxed about why he referred to “shameful family matter” if it was not true that he was a gambler. I am unable to understand the explanations of the defendant made in answer to this question.

59.  On 18 February 2006, the defendant sent a facsimile to the plaintiff containing his wife’s bank account number and a message urging the plaintiff to make repayment promptly, and stating that otherwise he would have difficulty explaining the matter to his wife. The defendant returned to Australia in April 2006.

60.  On 29 August 2006, he came to Hong Kong. He went to the Centre to look for the plaintiff to chase her for repayment after having failed to contact her via the phone. He was behaving properly whilst in the Centre. In cross-examination, the defendant admitted that he took with him to the Centre a 2 ft x 3 ft poster but said that it was in fact a letter, which was written in big characters, asking the plaintiff not to harm the family relationship because of money and to take their father back (it is the defendant’s evidence that the father had returned to the Mainland due to pressure from the plaintiff). He denied that he said to the students that the plaintiff owed him money but he did ask the plaintiff for repayment. He denied taking out the big poster and said that he only did so after the police had arrived. He denied taking the big poster along because he wanted the students to know that the plaintiff owed him money and said that he needed the poster because he was unable to talk to the plaintiff but that she could read the poster from afar. The defendant said that he was pushed by the big men who were surrounding him but he did not react to the pushing. He said that these men were acting under the mistake that he would treat the plaintiff with violence, so they pushed him away forcefully. He believed that the plaintiff had said to the students in advance that he would use violence against her. He admitted that after he left the Centre and was waiting outside the building, he distributed copies of Letter B to the people from the Centre. His reason was that he wanted to tell the people why he was there.

61.  The defendant was not in Hong Kong on 20 October 2006 when the paint splashing incident took place. He denied any involvement with this incident. In cross‑examination, the defendant agreed that he went to Macau on 18 October 2006. He said that he went to Macau to go to the Mainland. He suggested that he was aware of the mastermind behind the incident, although he did not disclose any detail about what he knew. He had reported the matter to the authorities and it is being investigated. He was also cross-examined about the posters which were used on that day. He denied having a copy of the plaintiff’s name card. Although he had possession of family photographs of the plaintiff, he could not remember seeing the photograph appearing on the posters.

62.  On 4 December 2006, whilst en route to Australia, the defendant was arrested by the police in connection with the complaints of the plaintiff. He was released on bail the next day. On 28 March 2007, he was informed by the police that he would not be prosecuted.

63.  DW2 is 84 years old. His evidence is that the defendant had never pressed him for money, nor had the defendant pressed him to persuade the plaintiff to lend him money. He rebutted a number of assertions made in the plaintiff’s affidavit as being untrue. He said that he was given a lot of money by the defendant and that the plaintiff had borrowed all his money from his third daughter who looked after the same. He denied that he had called the plaintiff warning her that the defendant would stab her if she did not give him any money. In 1995, the plaintiff went over to Australia and borrowed AUS$100,000 from the defendant in his presence.

64.  In cross‑examination, DW2 said that he was not aware that the defendant would not have to go to jail if he lost this action. He denied any knowledge of any gambling activities by the defendant.

65.  DW3 confirmed the AUS$35,000 loan to the defendant. When the defendant asked him for the loan, he was told that it was needed for his second sister. A few months after the money was lent, the plaintiff went to Australia and DW3 saw that AUS$100,000 was given to her by the defendant. He was present at the time because he was asked to count the cash, something which he was good at doing. DW3 left Australia in 2001 and is now residing in the Mainland.

66.  In addition to witnesses, a report from Dr Leo Chiu, a psychiatrist, dated 24 June 2008 has been adduced by the defence. It is stated in the report that Dr Chiu had not examined the plaintiff at all. The report basically contains Dr Chiu’s comments on or critique of Dr Chan’s report. With respect, I find such evidence unusual and unhelpful (in the absence of an examination of the plaintiff). I hope I can be forgiven for not adding to the length of this Judgment by setting out the critique.

67.  Finally, there are a number of hearsay statements relied upon by the defendant, e.g., declarations from the defendant’s brother and police statements from his sisters. The defendant seeks to rely upon them to show that the plaintiff was indebted to him. Ms Lo, who appears for the defendant, submitted that I should give them full weight. With respect, I disagree. There is an inherent unfairness in relying upon evidence which has not been tested in cross‑examination. Further, it is self-evident that some of the contents of the statements are multiple hearsay, e.g., D231, 4^th paragraph and A131, 2^nd paragraph. I shall adjudicate on these matters on the basis of the evidence given by the witnesses and decline to place any weight on the hearsay statements.

Assessment of the evidence

68.  It is never easy to decide questions of credibility simply on the basis of what was said in the witness box. First and foremost, I look for corroboration of the evidence. In my view, the 3 Messages and the unchallenged evidence of the 23 August 2006 incident constitute support for the plaintiff’s evidence. The 3 Messages show that the defendant was behaving in a highly abusive manner towards his sister, and it lends support to the plaintiff’s claim that she was in fear.

69.  The 23 August 2006 incident is significant for a number of reasons. It shows the defendant’s volatile behaviour. He admitted that he was surrounded by the students because they were fearful that he might turn violent. Further, it demonstrates that the defendant resorted to using the big poster and distributing copies of Letter B to, putting it at the lowest, embarrass the plaintiff. I do not believe that what precisely was written on the big poster changes the picture in a material way. Furthermore, it clearly was a premeditated act on the part of the defendant to put pressure on the plaintiff at a time when the Centre was filled with people.

70.  I believe that there is a compelling inference to be drawn that the paint splashing incident was carried out at the defendant’s instigation. On examination, Letter A and Letter B are the same letter. It is too much of a coincidence for the poster to be based on the very letter which the defendant was distributing on the street two months ago. Further, I have no doubt that the defendant had possession of all the information stated on the poster. Furthermore, the paint splashing incident, albeit more serious, is consistent with the course of action adopted by the defendant against the plaintiff. With respect, I find Ms Lo’s suggestion that the incident was engineered by the plaintiff a fanciful one.

71.  The plaintiff was cross‑examined for the better part of two days. Her police statements, affidavits and her statements to Dr Chan as contained in Dr Chan’s report were all deployed in the cross-examination. There are omissions and inconsistencies in such previous statements compared with the evidence given by the plaintiff in court. Commonsense and experience dictate that such deficiencies are only to be expected. The important consideration is whether such deficiencies reveal a lack of credibility in the plaintiff’s evidence. I accept the plaintiff’s explanations for some of the deficiencies — she did not see the need to go into great detail when making her police statements and she was emotionally disturbed at the time.

72.  The plaintiff was unshaken by the cross-examination. There is only one matter which has caused me some doubt over her credibility. In respect of Letter B, when she was asked in cross-examination whether she wrote it for the defendant and she answered “I have no impression.” It strikes me that the contents of that document are such that the plaintiff should be able to say affirmatively whether she had ever written such a letter.

73.  The defendant does not impress me as a credible witness. He was evasive when he was cross-examined about the 3 Messages. I am unable to accept that he cannot remember, with the benefit of hearing the recording, whether he had uttered the expletives. Also, he could not be as confused as he portrays himself to be because he was able to provide a fair amount of detail about those messages in his witness statement. I believe that the 3 Messages came from the defendant.

74.  Further, where his evidence contradicts with that of PW2, I have no hesitation preferring the latter. Apart from the fact that PW2 was not challenged in cross‑examination, she impresses me as a credible witness who was careful to be accurate and fair in her evidence.

75.  In addition, there are a number of unsatisfactory aspects in the defendant’s evidence. Without being exhaustive, I find him evasive when asked about his gambling, refusing to give any idea about the maximum amount of money he had lost. I find it difficult to accept his evidence that the two deposits totalling AUS$30,000 were not repayments by the plaintiff. The defendant said that those were moneys taken back to Hong Kong by his father on his behalf and when the plaintiff asked to borrow his money which was kept by father, he insisted that she should leave him AUS$30,000 and deposit the same into his account in Hong Kong. There is artificiality in this explanation. I see no reason why the AUS$30,000 could not remain with his father or why the money was not remitted to his own account by himself. Further, I believe that his explanation that on 23 August 2006 the students feared that he might turn violent because they were told by the plaintiff that he would resort to violence is something he made up in the witness box.

76.  Last but not least, I had to repeatedly remind the defendant in the witness box that he should slow down his speech and give shorter answers if he could. I observed that when he was asked difficult questions in cross-examination, the defendant would often give long, and mostly repetitive answers spoken at a considerable speed. I get the impression that he had a script of his evidence which he had memorised by heart and, when pressed, he would repeat the script.

77.  The significance of the evidence of DW2 and DW3 lies in the loan of AUS$100,000. The plaintiff has strongly denied such a loan. However, I find it very difficult to decide this matter without any documentary evidence. On one hand, it was a large sum of money for the plaintiff to have to carry back to Hong Kong. The explanation that she needed to do so for tax purpose or to avoid jeopardising her legal aid application are difficult to accept (the money was not hers). On the other hand, DW2 and DW3 are quite adamant that they witnessed the handing over of the money.

78.  If it is an issue which requires adjudication in this action, I would have to resort to the burden of proof. It is a matter alleged by the defendant and I am not satisfied that it is more likely than not that there was such a loan. However, this matter only goes to credibility of the witnesses. Even if I accept that the plaintiff did borrow the AUS$100,000 from the defendant, I remain of the view that her evidence about the wrongful acts of the defendant is true, reliable and supported by the 3 Messages and the incidents on the 23 August and 20 October 2006.

79.  For completeness, I should say that (i) apart from the AUS$100,000, I have no doubt that the plaintiff had repaid all the loans given to her by the defendant and (ii) I believe that there is a real likelihood that DW2 came to court believing that his youngest son was in real trouble and he was prepared to say what was necessary to get him out of trouble.

Law

80.  Mr Wong, who appears for the plaintiff, has referred me to a number of authorities concerning debt collectors. I rely upon the principles of law set out Wong Wai Hing & Anr v Hui Wai Lee, unrep., HCA2901/98 :

“It is clear that threats and vile abuse per se do not constitute assault (Clerk & Lindsell on Torts 17^th Edn., para 12-12).

I was referred to Barton v Armstrong [1969] 2 NSWR 451 by Counsel for the plaintiff, Mr Kwok. In that case, it was held, inter alia, that threats which put a reasonable person in fear or apprehension of physical violence can constitute an assault, although the victim did not know when that physical violence may be effected. In dealing with whether threats made over the telephone can amount to an assault, Taylor J said at 455 :

‘I am not persuaded that threats uttered over the telephone are to be properly categorised as mere words. I think it is a matter of the circumstances. To telephone a person in the early hours of the morning, not once but on many occasions, and to threaten him, not in a conversational tone but in an atmosphere of drama and suspense, is a matter that a jury could say was well calculated to not only instill fear into his mind but to constitute threatening acts, as distinct from mere words. If, when threats in this manner are conveyed over the telephone, the recipient has been led to believe that he is being followed, kept under surveillance by persons hired to do him physical harm to the extent of killing him, then why is this not something to put him in fear or apprehension of immediate violence? In the age in which we live threats may be made and communicated by persons remote from the person threatened. Physical violence and death can be produced by acts done at a distance by people who are out of sight and by agents hired for that purpose. I do not think that these, if they result in apprehension of physical violence in the mind of a reasonable person, are outside the protection afforded by the civil and criminal law as to assault. How immediate does the fear of physical violence have to be? In my opinion the answer is it depends on the circumstances. Some threats are not capable of arousing apprehension of violence in the mind of a reasonable person unless there is an immediate prospect of the threat being carried out. Others, I believe, can create the apprehension even if it is made clear that the violence may occur in the future, at times unspecified and uncertain. Being able to immediately carry out the threat is but one way of creating the fear of apprehension, but not the only way. There are other ways, more subtle and perhaps more effective.

Threats which put a reasonable person in fear of physical violence have always been abhorrent to the law as an interference with personal freedom and integrity, and the right of a person to be free from the fear of insult. If the threat produces the fear or apprehension of physical violence then I am of opinion that the law is breached, although the victim does not know when that physical violence may be effected.’

Barton was applied in R v Ireland [1996] 3 W.L.R. 690. I accept that the law is as stated by Taylor J in Barton and as applied in Ireland.

There is as yet no tort of harassment in our law. However, the tort of intimidation by way of a threat to commit a criminal or tortious act is well established (see Rookes v Barnard [1964] AC 1129).”

Conclusions

81.  In light of my findings on the evidence, I am satisfied that the plaintiff has made out her causes of action of assault and intimidation. The series of acts carried out by the defendant against her from 23 December 2005 to 20 October 2006 clearly constituted an assault and intimidation. Some of the acts by itself constituted an assault and intimidation, e.g., the paint splashing incident.

82.  I am satisfied that the plaintiff has suffered psychiatric illness as a result of the defendant’s wrongdoings (I accept the report of Dr Chan).

83.  With respect, I decline Mr Wong’s invitation to decide whether there is a tort of harassment in our law. Apart from a Court of Appeal decision to the effect that it is arguable that such a cause of action exists in the law of Hong Kong (see Wong Tai Wai David v The HKSAR Government, unrep., CACV19/2003), I have not been given any assistance for the purpose of exploring this difficult but no doubt interesting area.

Relief

84.  I grant a permanent injunction in the same terms as the Order of Poon J dated 10 January 2007 save that the address of the plaintiff’s workplace requires updating.

85.  I award the plaintiff HK$200,000 as damages against the defendant. In doing so I have taken into account the three authorities cited to me by Mr Wong — Wong Kwai Fun v Li Fung [1994] 1 HKC 549; Shek Gee Qun v Wong Wai Kuen t/a Mei Tak Decoration and Engineering Co., unrep., HCA4455/2002 and Mo Hee Yuk v Gammon Shanska Ltd, unrep., HCPI 502/2004. Interest should run on the damages at Judgment rate from the date of Judgment until payment.

86.  In relation to the plaintiff’s claim for exemplary or aggravated damages, I decline to make such an award. I take into account the principles set out in Barton at p.457, l.5-15 :

“It cannot be doubted that in an action for assault, in certain circumstances, the damages may be aggravated by the manner in which the assault is committed. It is, I think, also clear that exemplary damages may be awarded where the facts show that the defendant’s conduct in committing the wrong exhibited a contumelious disregard of the plaintiff’s rights, see Uren v John Fairfax & Sons Pty Ltd [1967] ALR 25; 117 CLR 118. The distinction between aggravated damages and exemplary damages is pointed out in that case. The former are given by way of compensation for injury to the plaintiff; they are frequently intangible, resulting from the circumstances and manner of the defendant’s wrongdoing.” On the other hand exemplary damages are awarded, as Lord Devlin says in Rookes v Barnard, ‘to punish and deter the wrongdoer’, though in many cases the same set of circumstances might well justify either an award of exemplary or aggravated damages”, per Taylor, J, ALR at p.32; CLR at pp129-30.”

I believe that the sum of HK$200,000 adequately compensates the plaintiff for her injuries. The gravity of the defendant’s wrongdoings makes it a fine balance whether exemplary damages should be awarded against him.

87.  Finally, I make an order nisi that the costs of these proceedings be borne by the defendant to be taxed if not agreed.