LAING O'ROURKE CONSTRUCTION HONG KONG LTD v. BANTAWA SUKRA

DCMP 2697/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS No. 2697 OF 2013

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JUDGMENT

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Introduction

1.  On 21 October 2013, I gave Laing O’Rourke Construction Hong Kong Limited (“LOC”) leave under Order 41A r.9 of the Rules of the District Court, Cap.336H (“RDC”) on its ex parte application to apply for an order of committal against Bantawa Sukra (“BS”) on the grounds set out in the statement filed by LOC dated 11 October 2013 (“the Statement”). LOC issued an Originating Summons dated 22 October 2013 to commence these committal proceedings pursuant to Order 53 r. 3(1) of the RDC accordingly.  

2.  The gravamen of the complaint of LOC is that BS allegedly made a false statement in his witness statement (“the Witness Statement”) filed in DCEC 19311/2012 (“the EC Proceedings”) on 27 June 2013 wherein BS seeks compensation against LOC in respect of an ear injury sustained by him in the course of his employment with LOC pursuant to the Employees’ Compensation Ordinance, Cap. 282 (“ECO”).

Preliminary matters

3.  At the outset, Ms Li, counsel for BS, raised an objection to any reference to the affirmation of BS filed for the purpose of these committal proceedings until BS elects to give evidence should this court did not accede to the application of LOC. She submitted that BS’s affirmation filed should be treated as being in limbo until the conclusion of the LOC’s case. Ms Li relied on In re W (Wards) (Publication of Information) [1989] 1 F.L.R. 246 in this regard.

4.  Mr Wong, counsel for LOC, fairly agreed to her submissions. As a result, all the references to the evidence of BS in his opening submissions were to be ignored and the reply affidavit filed on behalf of LOC was to be struck out provisionally save that the letter issued by Messrs Deacons dated 30 May 2013 on behalf of LOC exhibited thereto was agreed to be admitted as evidence.

5.  At the conclusion of the case of LOC, which consists of the unchallenged affidavit evidence of Lee Shuk Ling Linda filed on behalf of LOC, Ms Li made a submission of no case. Mr Wong, counsel for LOC, fairly drew my attention to the decision of Kwan J (as she then was) in Re Kennedy (No 1) [2004] 3 HKC 404 and did not insist on putting BS to an election whether to adduce evidence. After hearing counsel’s submission, I took time to deliberate and at the resumed hearing I ruled that there is a case to answer.

6.  Ms Li then indicated that BS elected not to give evidence to answer the complaint. It follows that the affirmation of BS and the reply affidavit of Lee Shuk Ling Linda should be excluded. I bear in mind the uncontroversial principle that the defendant has no legal burden to prove anything in committal proceedings. I also note that the respondent to a motion to commit for contempt is not a compellable witness and cannot be compelled to submit to cross-examination on an affidavit he has filed until such affidavit has been deployed in evidence: Re Kennedy (No 1) p.409B.

7.  Before proceeding to my assessment of the evidence adduced by LOC, it is apposite to set out the relevant legal principles.

8.  In Kinform Ltd v Tsui Loi (No 1) [2011] 5 HKLRD 57, Deputy Judge Herbert Au-Yeung (as he then was) in dealing with a similar application summarized the pertinent legal principles concerning false statements in a document verified by a statement of truth. Of particular relevance is the dicta of Coulson J in Walton v Kirk [2009] EWHC 703 (QB) cited by the deputy judge. Coulson J set out the three elements to be proved by the plaintiff in committal proceedings: (a) the falsity of the statement in question; (b) the statement has or would have interfered with the course of justice in some material respects; and (c) at the time it was made, the maker of the statement had no honest belief in the truth of the statement and knew of its likelihood to interfere with the course of justice.

9.  It is trite that the criminal standard of proof is applicable and it is incumbent on LOC to prove the three elements beyond reasonable doubt. Given the quasi-criminal nature of contempt proceedings, any genuine doubt must be resolved in the defendant’s favour: Walton v Kirk §14.

10.  With these principles in mind, I turn to evaluate the evidence of LOC to see whether the alleged contempt can be established beyond reasonable doubt.

LOC’s case and evidence

11.  The primary facts underlying the complaint of LOC are not in dispute and can be summarized as follows.

12.  BS is a Nepalese man. He got the employment with LOC as a welder on or about 13 June 2012. He allegedly injured his right ear when working for LOC by a sudden loud sound produced by an excavator at a construction site on or about 27 July 2012 (“the Accident”). BS then commenced the EC Proceedings to seek compensation on account of the Accident under the ECO.

13.  In the Witness Statement, under the heading of “Present Complaint”, paragraph 18, consisting of one sentence only, read as follows:

“Prior to the accident, I was well and did not have any major illness or right ear injury.”

14.  This statement (“the Subject Statement”) is the subject matter of these proceedings. For the reasons given below, LOC says it is false.

15.  On 24 May 2013, Deacons wrote to Messrs Chan Lawyers (“CL”), former solicitors for BS, stating that a writ search disclosed that one person having the same name of BS issued a writ against Young Yim Construction Company (“Young Yim”) in the High Court on 16 February 2006 seeking damages for personal injury. Deacons then asked CL to confirm whether BS was actually the plaintiff in the High Court Action and if so to provide all the details and particulars of his claim in the High Court Action.

16.  CL replied by way of a letter dated 29 May 2013 containing an unequivocal denial.

17.  It should be noted that the Witness Statement and the Statement of Truth were signed by BS on 30 May 2013.

18.  On 6 June 2013, CL wrote again to clarify that BS did start the High Court Action but due to lapse of time BS could not remember his previous accident clearly. All they said about the High Court Action was that BS was employed by Young Yim as a welder and injured his back when working for Young Yim (“the Previous Injury”). Presumably that was the subject matter in the High Court Action.

19.  Deacons were understandably unhappy about having been misled and were dissatisfied with the explanation. By a letter dated 7 June 2013, they asked for full discovery of the Previous Injury and the High Court Action.

20.  Under the cover of the letter dated 5 July 2013, CL sent to Deacons the documents filed in the High Court Action including the pleadings, the joint expert report dated 5 September 2006 and the witness statement of BS dated 21 June 2006.

21.  From these documents, the following information can be gleaned. First, on 12 June 2004, BS injured his back when lifting a piece of H beam in the employment of Young Yim. Messrs Massie & Clement on behalf of BS commenced the High Court Action on 16 February 2006. In the joint expert report, the two doctors opined that BS only sustained minor back sprain injury, which essentially involved soft tissue only. They further opined that BS was expected to have good prognosis for his back sprain injury. In the witness statement, BS disclosed that he was granted sick leave from 13 June 2004 to 14 April 2005 and he still complained about his back injury causing him a lot of difficulties in his daily life and rendering him unable to resume his work as a welder.

22.  Deacons were naturally frustrated with the way the High Court Action came to light. On 11 October 2013, they applied for leave to commence these committal proceedings by reason of the alleged falsity of the Subject Statement.

Analysis

Falsity of the Subject Statement

23.  LOC’s position is that the Subject Statement was false. Given the Previous Injury, LOC contends that BS could not be well and had to have a major illness prior to the Accident, contrary to the Subject Statement.

24.  Disarmingly, Ms Li accepts that the Previous Injury was omitted from the Witness Statement and agrees that the Previous Injury could be characterized as a major illness. If the Previous Injury persisted, BS could not be well before the Accident.

25.  However, adopting a restrictive and perhaps somewhat pedantic construction of the Subject Statement, which in my view is justified in view of the quasi-criminal nature of the present proceedings, BS only said that he was well and did not have any major illness prior to the Accident. The past tense instead of the past perfect tense was used in the Subject Statement meaning BS’s stated condition was time specific. The material point of time was the time prior to the Accident in July 2012. BS did not claim that he had all along been well without any major illness throughout his life until the Accident.

26.  I believe that the key question here is whether BS had totally recovered from the Previous Injury prior to the Accident. If not, I am inclined to find the Subject Statement to be inaccurate. Nevertheless, on the evidence of LOC, I am unable to form any view on this question. The Previous Injury was sustained in 2004 and persisted in 2006. These primary facts do not give rise to an irresistible inference that the Previous Injury persisted in 2012. There is no medical evidence of BS’s physical condition in July 2012 prior to the Accident. There is every possibility that he had overcome totally the Previous Injury during the six years, which is a substantial period of time in any view. Thus, I am not satisfied beyond reasonable doubt that the Previous Injury still persisted in 2012 despite its gravity alleged by BS himself in his witness statement made in 2006 filed in the High Court Action in the absence of medical evidence.

27.  To conclude, I find that LOC has failed to discharge its burden of proof in respect of the first element. On this ground alone, the application of LOC should be rejected and I shall dismiss the Originating Summons with costs to BS.

Likely Interference with the Course of Justice in Some Material Respects

28.  For completeness, I shall proceed to consider the other two elements assuming the Subject Statement is false in nature. The parties agree that it is sufficient to show that the action complained of is inherently likely so to interfere: Secretary for Justice v Oriental Press Group Ltd [1998] 2 HKLRD 123, §155 and Secretary for Justice v Ng Wai Bing [2011] 5 HKLRD 520 at §§38-57.

29.  Ms Li first took a technical objection. She draws to my attention the fact that LOC did not explain how the Subject Statement has or would be likely to have interfered with the course of justice in some material respects in the EC Proceedings in the Originating Summons, the Statement and the supporting affidavit. She prays in aid the observation of Kwan J (as she then was) in Re Wing Fai Construction Co. Ltd [2004] 3 HKLRD 357 at §98, which was as follows:

“Further, it has not been made clear in what respects the respondent was alleged to have significantly interfered with the administration of justice in each of the five grounds set out in the Re-amended Notice of Motion, or in respect of each of the eight instances particularised under the first ground. It is not sufficiently merely to assert, at the end of each paragraph, that in consequence of the act complained of, the respondent has interfered with the administration of justice as a result of the act complained of, the respondent has interfered with the administration of justice.”

30.  In that case, the act complained of was the report made to the police by the liquidator of a company about certain matters arising from a private examination of the two directors of the company pursuant to section 221 of the Companies Ordinance, Cap.32. The two directors brought criminal contempt proceedings against the liquidator on the basis that the liquidator should have obtained leave of the court before the report.

31.  The judge was of course correct in pointing out the requirements of setting out the full grounds in the motion documents. Order 52 r.3(1A) of the RDC provides that the originating summons shall state at the grounds in respect of which leave for making an application for an order of committal has been granted.

32.  Further, the statement should state all the factual elements which, if proved, are sufficient to establish the contempt, but not the evidence in support: Kao Lee & Yip v Koo Hoi Yan (2009) 12 HKCFAR 830, CFA, §72 per Sir Gerard Brennan.

33.  The affidavit in support should verify the statement of fact in the statement supporting the application. The necessary particulars should be provided in the statement rather than the affidavit: Incorporated Owners of United Building v Ng Yuk Ming [1994] 3 HKC 637 at 639.

34.  In Re Wing Fai Construction Co. Ltd, as noted by the judge, it was difficult to see how the action complained of could be an interference with the administration of justice. It is hence imperative for the applicant to let the respondent know what exactly the charge he has to meet with the supporting particulars.

35.  In the present case, however, the situation is different. It is obvious that a false statement about the physical condition of the applicant in the EC Proceedings immediately before the accident is likely to cause interference with the administration of justice. The fact that the Previous Injury was concealed is the central complaint of LOC and it is expressly made in the Originating Summons and the Statement. BS should be left in no doubt as to what exactly the charge is against him. How the concealment of and/or omission to mention the Previous Injury would cause interference with the administration of justice could be a matter of inference and could be dealt with by way of submissions. I do not find such particulars indispensable in the documents in these circumstances. I do not accept the technical objection in the result.

36.  Ms Li next submits that in the EC Proceedings, BS merely complains about his right ear injury and the Previous Injury could not be relevant. She argues that the two injuries are very different and the Subject Statement would not cause a significant and adverse effect in the assessment of the compensation payable to BS.

37.  Mr Wong points out that though the main complaint is BS’ right ear injury in the EC Proceedings, the harm caused set out in the Witness Statement however includes his loss of the ambulatory ability and hence the impairment of his employability. These problems allegedly caused by the ear injury could be attributable to the Previous Injury. BS indeed complained in his witness statement filed in the High Court Action that his back pain caused him a lot of movement problems. Therefore, Mr Wong submits that the concealment of the Previous Injury may affect the quantum of compensation payable to BS. I agree with Mr Wong.

38.  To sum up, I am satisfied beyond reasonable doubt that the Subject Statement would likely to cause/have caused an interference with the course of justice in the EC Proceedings.

No Honest Belief and Knowledge of the Likelihood of Interference

39.  The discussion about this last element can be brief in light of the foregoing analysis. If the Previous Injury persisted in July 2012 before the Accident, there is no reason why BS would have omitted to disclose the same in the Witness Statement in October 2013 and instead have positively indicated that he was completely free from health problems. I can think of no innocent reasons for making such a misleading statement and I would be driven to the inescapable conclusion that BS had no honest belief in the truth of the Subject Statement.

40.  Furthermore, given the materiality of the Subject Statement, I am satisfied beyond reasonable doubt that BS was aware of the likelihood of the Subject Statement’s causing an interference with the course of justice in the EC Proceedings.

Conclusion and Orders

41.  For the foregoing reasons, I am not satisfied that LOC has established the alleged contempt beyond reasonable doubt though I understand its frustration. I therefore dismiss the Originating Summons with costs to BS, to be taxed if not agreed. I also grant certificate for counsel. This is a costs order nisi subject to variation upon either (or both) parties’ application to be made within 14 days from the date of this judgment.

42.  It remains for me to thank both Mr Wong and Ms Li for their very able assistance and I should in particular thank Ms Li for her helpful written submissions.