KINFORM LTD v. TSUI LOI AND OTHERS

DCMP 947/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 947 OF 2011

__________________________

__________________

JUDGMENT

__________________

BACKGROUND

1.   In DCCJ 3854/2009 (“the Civil Action”), the plaintiff sued the 1^st defendant, the 2^nd defendant and a company known as Ho Man Trading Limited (“Ho Man”) (collectively, “the Defendants in the Civil Action”), among other things, for the outstanding price of timber products sold and delivered.

2.   The Defendants in the Civil Action filed a Defence and defended the plaintiff’s claim on the primary ground that the timber products supplied by the plaintiff were substandard.  It was further pleaded that the Defendants in the Civil Action had made numerous complaints to the plaintiff about the quality of the timber products.

3.   In answer to a request for further and better particulars of the Defence made by the plaintiff, the Defendants in the Civil Action gave particulars (“the FBP”), among other things, that a written complaint was made by a letter dated 30^th October 2008 from Ho Man to the plaintiff (“the Complaint Letter”).

4.   Afterwards, the plaintiff applied for summary judgment against the Defendants in the Civil Action.  In opposition to the Order 14 application, the 3^rd defendant, who was still working for the plaintiff on 30^th October 2008, made an affirmation for and on behalf of the Defendants in the Civil Action.  In his affirmation, the 3^rd defendant confirmed that he had received the Complaint Letter on 30^th October 2008.  He also exhibited a copy of the Complaint Letter in his affirmation.  The content of the 3^rd defendant’s affirmation was confirmed by the 1^st defendant in his own affirmation.

5.   The plaintiff’s application for summary judgment was subsequently dismissed with costs.

6.   The Civil Action then proceeded.  The Defence filed therein was amended, and the parties have filed witness statements.

7.   In the course of discovery, the plaintiff’s solicitors (Messrs. Edwin Yun & Co. (“EYC”)) requested Messrs. Henry Wan & Yeung (the solicitors acting for the Defendants in the Civil Action) (“HWY”) to provide the original of the Complaint Letter for inspection.  That request was eventually acceded to.  The inspection took place on 17^th March 2010, during which EYC photocopied the original Complaint Letter (with the reverse side of the letter) for record. 

8.   Subsequently, upon a closer examination of the said photocopy, it was found that the Complaint Letter was printed on the reverse side of part of a letter dated 24^th March 2009 sent by the Bank of China Limited (“BOC”) to the 2^nd defendant.  The plaintiff therefore took the view that the Complaint Letter could not have been in existence on 30^th October 2008 and that it could not have been issued by Ho Man or received by the 3^rd defendant on 30^th October 2008.

9.   The plaintiff therefore applied for leave to commence contempt proceedings against the defendants herein on the basis that they had made or caused to be made false statements in documents verified by Statements of Truth without honest belief in their truth pursuant to Order 41A rule 9 and Order 52 rule 2 of the Rules of the District Court.  Such leave was granted by His Honour Judge Chow on 4^th April 2011.

THE PLAINTIFF’S CASE OF CONTEMPT

10.  The grounds relied upon by the plaintiff in the hearing are narrower than those set out in the Originating Summons.  For easy reference, I shall set out below the conducts of the defendants which are said to be in contempt of court:

(1)    On 8^th October 2009, the 1^st and 2^nd defendants caused a Defence be filed in the Civil Action and pleaded therein that: “The Defendants made numerous complaints to the Plaintiff about the quality of the goods between the end of October 2008 and February of 2009”.  A Statement of Truth was signed on the 1^st and 2^nd defendants’ behalf by their solicitor, Mr. Victor Yeung (“Yeung”). (“the 1^st Complaint”)

(2)    The 1^st and 2^nd defendants caused the FBP be provided on 29^th October 2009 in which it was stated under Answer 5(a) that “A written complaint was made by letter dated 30^th October 2008 from [Ho Man] to the Plaintiff”.  A Statement of Truth was signed on the 1^st and 2^nd defendants’ behalf by Yeung. (“the 2^nd Complaint”)

(3)    The 1^st and 2^nd defendants caused their Defence be amended on 19^th October 2010, and in paragraph 4 of the Amended Defence and Counterclaim, it was pleaded that “The Defendants made numerous complaints to the Plaintiff about the quality of the goods between the end of October 2008 and February of 2009.”  Again, their solicitor, Yeung, signed a Statement of Truth on their behalf. (“the 3^rd Complaint”)

(4)    On 13^th December 2010, the 1^st defendant made a witness statement, and in paragraph 20 of which he stated that: “I sent also a formal letter of complaint on 30^th October 2008 to the Plaintiff (copy exhibited herein and marked “TL-5”)”.  The 1^st defendant signed a Statement of Truth himself at the end of his witness statement and confirmed that the facts stated therein are true. (“the 4^th Complaint”)

(5)    On the same day, the 3^rd defendant also made a witness statement and stated in paragraph 26 therein that: “I received a formal letter of complaint on 30^th October 2008 (copy exhibited herein and marked “CWK-5”)”. The 3^rd defendant also signed a Statement of Truth and confirmed that the facts stated in his witness statement are true. (“the 5^th Complaint”)

11.  The plaintiff alleged that these statements are false.

THE RELEVANT LEGAL PRINCIPLES

12.  I accept that the followings are the applicable legal principles:

(1)    In cases where a person is being prosecuted for contempt by reason of his having verified a false statement by a statement of truth, the plaintiff must prove beyond reasonable doubt in respect of each statement:

1^st Element:   The falsity of the statement in question;

2^nd Element:     That the statement has, or if persisted in would be likely to have, interfered with the course of justice in some material respects; and

3^rd Element: That 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.

(Carol Walton v Joanne Kirk [2009] EWHC 708 at §8)

(2)    Given the quasi-criminal nature of contempt proceedings, any genuine doubt must be resolved in the defendants’ favour.

(Carol Walton v Joanne Kirk [2009] EWHC 708 at §14)

(3)    It is not necessary to prove a specific intent to interfere with the administration of justice.  It is enough if the action complained of is inherently likely so to interfere. (Secretary for Justice v The Oriental Press Group Ltd & Others [1998] 2 HKLRD 123 at page 155I & Secretary for Justice v Ng Wai Bing & Others [2010] 6 HKC 488 at §§38 – 57)

THE EVIDENCE ADDUCED

13.  In proving its case, the plaintiff has altogether called 4 witnesses, namely:

(1)    Mr. Chan Wing Cheong (“Chan”), the Vice President, Client Services of Computershare Hong Kong Investor Services Limited (“Computershare”), the H-Share Registrar of BOC;

(2)    Madam Poon Tik Ka (“Poon”), a director and shareholder of the plaintiff.  She is also the wife of the 3^rd defendant, but they have separated since January 2009;

(3)    Yeung, a partner of HWY; and

(4)    Mr. Edwin Yun (“Yun”), the sole proprietor of EYC.

14.  The 1^st and 2^nd defendants have elected not to give any evidence in court.  In this regard, it is recognized that they do not have the burden to prove their innocence.  They have the right to remain silent in these proceedings, and the burden remains on the shoulder of the plaintiff in proving its case.

15.  On the other hand, the 3^rd defendant has given testimony before me.

16.  Yeung has been subpoenaed by the plaintiff to give evidence in court.  The plaintiff made it clear in paragraph 35 of its Opening Submissions that it was intended that Yeung would be asked to confirm what appears on the face of the documents that:

(1)    Yeung had fully explained the contents and the exhibits of the 3^rd defendant’s witness statement before the 3^rd defendant signed the same; and

(2)    The 3^rd defendant was involved in matters arising from the handling of the original of the Complaint Letter.

17.  Mr. Lee raised a preliminary point at the beginning of the hearing and argued that Yeung should not be called as a witness.  It was submitted that since the 1^st and 2^nd defendants were not going to give evidence, the calling of Yeung would embarrass those defendants.  It was also said that Yeung would be bound by legal professional privilege anyway and such LPP has not been waived by the 1^st and 2^nd defendants.

18.  Mr. Lee relied on paragraphs 12-57 and 12-58 of Archbold Hong Kong (2011) to make good his point.  These paragraphs state the general principles, inter alia, that communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client or in connection with or in contemplation of legal proceedings would be protected from disclosure.  Items enclosed with or referred to in such communications should also be covered.

19.  With respect, if the plaintiff was only limiting to the lines of questions as spelt out in paragraph 35(1) and (2) of its Opening Submissions (as referred to above), I could not see how it could be said that the answers to be given should have been protected by legal professional privilege as contended.  I agreed with Mr. Yu S.C. who submitted on behalf of the plaintiff that the subject matters to be asked were not communications made in connection with the giving of legal advice.

20.  This is particularly so in respect of the matters under paragraph 35(1) of the said Opening Submissions. 

21.  Furthermore, the rule as to privilege does not extend to communications between a client and his solicitor which the client instructed his solicitor to repeat to the other party, for such communications are not confidential: see Conlon v Conlons, Ltd. [1952] All ER 462 at 466D – G.  Therefore, Mr. Lee’s argument that the plaintiff should not even be allowed to confirm with Yeung in respect of the matters stated in the open letters sent by the solicitors of the 1^st and 2^nd defendants to the plaintiff’s solicitors must also be rejected. 

22.  For these reasons, I ruled this preliminary point in the plaintiff’s favour and allowed the plaintiff to call Yeung as a witness.  I did not consider it appropriate to rule Yeung out as a witness altogether. However, I also made it clear when I made such a ruling that by doing that, I was not indicating that the plaintiff might ask whatever questions it liked without regard to the privilege owned by the 1^st and 2^nd defendants.  If necessary, Mr. Lee was at liberty to re-visit the issue of privilege in respect of any particular questions asked by the plaintiff while Yeung was giving evidence in the witness box.   

THE FALSITY OF THE COMPLAINT LETTER

23.  The main issue of the present case is whether the plaintiff has proved beyond reasonable doubt that the Complaint Letter could not have been issued on 30^th October 2008 as purportedly stated in the said letter.  This is the factual basis upon which all the complaints were made.  I will therefore consider this issue first before examining the complaints individually.

Yun’s evidence

24.  Yun has been called by the plaintiff to give evidence.  He confirmed that he has attended HWY’s office on 17^th March 2010 for the purpose of inspecting the original copy of the Complaint Letter.  The inspection was smoothly done.  He was provided with the original Complaint Letter by HWY.  He has made a photocopy of the original Complaint Letter and also its reverse side for record.

25.  Such photocopies show that the Complaint Letter was printed on the reverse side of a letter issued by BOC dated 24^th March 2009 (“the BOC letter”).

26.  After the inspection, Yun made an attendance note on the same day recording the inspection and the time taken.  He also sent a letter on the next day to HWY to put the fact of inspection on record.

27.  Yun’s evidence was not challenged by the defendants and is supported by contemporaneous documents.  I therefore accept his evidence in full.

Chan’s evidence

28.  Chan has been subpoenaed by the plaintiff to give evidence in Court.  He has no interest in these proceedings nor in the Civil Action.  I have no hesitation in accepting his evidence in its entirety.

29.  Chan explained that Computershare is the only company which is responsible to issue letters to BOC’s shareholders for and on behalf of BOC.  He also stated in evidence that as he was the Relationship Manager of Computershare who was responsible for serving BOC, hence it was his responsibility to oversee the issuance of any letters to be issued by BOC to its shareholders.  Indeed, the BOC letter was sent out under his supervision on 24^th March 2009.

30.  He has produced a number of internal emails of Computershare in which the draft BOC letter was discussed and approved.  In one of those emails, the working schedule for the preparation and sending out of the BOC letter was set out, and it can be seen that 24^th March 2009 was the scheduled date on which the BOC letter would be issued and 20^th April 2009 was the “deadline for returning consent letters”. 

31.  Chan has also produced an original copy of a sample of the BOC letter in Court.  It can be seen that the BOC letter was dated 24^th March 2009.  There are altogether 3 pages.  The first 2 pages are the body of the letter and the 3^rd page is a Reply Form, which is identical to the reverse side of the Complaint Letter.

32.  Pausing here, I should note that it can be seen from the Reply Form (on the reverse side of the Complaint Letter) that it was related to the means of receipt and language of BOC’s Periodic Reports.  This matches the content of the BOC letter. 

33.  I should also add that in the said Reply Form, the recipient (the shareholder) was asked to reply by 20^th April 2009, failing which it would be assumed that he has made certain decisions in relation to the receipt of Periodic Reports of BOC.  Again, this corresponds to the working schedule referred to above.

34.  I have therefore no doubt that the reverse side of the Complaint Letter is part of the BOC letter.

35.  Given the fact that the BOC letter was not issued until 24^th March 2009, I find that the Complaint Letter could not have been in existence on 30^th October 2008 (the date when it was allegedly issued).  It could not have been issued by Ho Man or received by the plaintiff around such time, and in any event not before 24^th March 2009.

3^rd defendant’s evidence

36.  For the purpose of these proceedings, the 3^rd defendant had deposed an affirmation which he adopted in Court as part of his viva voce evidence. 

37.  He told this Court that upon receipt of the Complaint Letter, he had taken it back to the plaintiff’s office and did not have sight of the same since then.  When he prepared his affirmation and witness statement for use in the Civil Action, he was only provided with a copy of the Complaint Letter for perusal but not the original. 

38.  It seems that the 3^rd defendant was suggesting that the original Complaint Letter (which was produced to this Court for preservation by the 1^st and 2^nd defendants pursuant to an order of His Honour Judge Lok made on 18^th January 2011 (“the Preservation Order”) is not the document which he received from the 1^st defendant on 30^th October 2008.

39.  Indeed, at the early stage of his cross-examination, he said that the Complaint Letter which was shown to him in Court was “almost identical” to the document which he received on 30^th October 2008, but he stated that that Complaint Letter was not the same letter which he received.

40.  However, he changed his evidence afterwards.  While he maintained that at the time when he made his affirmation and witness statement, he was not shown the original Complaint Letter, he said he could confirm that the copy of the Complaint Letter which he exhibited was identical to the one which he received on 30^th October 2008.  Furthermore, he admitted that the original Complaint Letter which was shown to him in Court was identical to the letter which he exhibited with his affirmation and witness statement.  In other words, he accepted that the content of the original letter placed before him in Court is identical to that contained in the letter which he received on 30^th October 2008.

41.  Having said that, the 3^rd defendant still insisted that the original Complaint Letter which was shown to him in Court is not the one which he received on 30^th October 2008. 

42.  I find his evidence in this regard totally incredible because it was his own evidence that he had never paid attention to the reverse side of the original letter at all.  He has been given chances to explain why he could be so sure that the original letter which was shown to him in Court is not the one which he received in October 2008 (given the fact that they look identical) but his answer was simply incomprehensible.  In my judgment, he maintained that there was another original complaint letter only because he wanted to cover up his wrong-doing.  If, as he said, he has never paid attention to the reverse side of the original Complaint Letter, it is impossible for him to be so sure that the letter placed before him in court is just a replica of the same letter but not the letter.

43.  Mr. Wong (who acts for the 3^rd defendant) suggested that the 1^st and 2^nd defendants might have re-printed the Complaint Letter after 24^th March 2009 to ease their worry that there was no documentary evidence in support of their complaint about substandard goods in the Civil Action.  I do not accept this suggestion.  If the original Complaint Letter had been sent to the plaintiff, it is only natural that the 1^st and 2^nd defendants could not produce the original of the letter anymore.  The 1^st and 2^nd defendants could have sought specific discovery for the plaintiff’s disclosure of the original letter received.  Further, their evidence that a complaint letter had been sent would be supported by the plaintiff’s own employee (the 3^rd defendant) anyway.  There is nothing for them to worry about.  Further, if they thought fit to re-print a copy from their computer file as suggested by Mr. Wong, they could have explained to the Court that the re-printed copy is identical in content to the one which was sent to the plaintiff on 30^th October 2008.  They did not have to treat the newly printed letter as if it were the original copy like what they did. 

44.  To the contrary, as mentioned before, it was HWY, the solicitors’ firm acting for the Defendants in the Civil Action, which presented the letter which was printed on the reverse side of the BOC letter as the original letter for EYC’s inspection on 17^th March 2010.  In my view, there is no room to argue that the letter placed before me (produced pursuant to the Preservation Order) is just a replica of the letter allegedly issued on 30^th October 2008.

45.  Mr. Wong further argued that the 3^rd defendant could not have created the false Complaint Letter because the BOC letter was sent to the 2^nd defendant (and hence it should be in the 2^nd defendant’s possession) and there is no evidence that the 3^rd defendant had the company chop of Ho Man (it can be seen from the original letter that Ho Man’s company chop was affixed thereon).  In my view, I do not have to find that the Complaint Letter was created by the 3^rd defendant before finding him guilty of contempt.  The crux of the matter is whether he knew that the letter was false, but went ahead to confirm by virtue of a Statement of Truth that it was a genuine letter.

Hearsay evidence – solicitors’ correspondences

46.  The plaintiff has placed certain correspondences between solicitors before me.  In a letter dated 9^th March 2010 which was sent by EYC to HWY, EYC mentioned that Yun has been informed by a Miss Cheng of HWY that the original complaint letter had been returned to the 3^rd defendant after a copy thereof was taken by HWY for the purpose of preparing the 3^rd defendant’s affirmation and that Miss Cheng also stated that another original document (identified in the letter as “TL-2”) had also been returned to the 1^st defendant after HWY had taken a copy thereof.

47.  In reply, by letter dated 10^th March 2010, HWY put on record that it did not inform EYC that the original of “TL-2” had been returned to the 1^st defendant after a copy thereof was taken.  However, HWY did not deny EYC’s assertion of what Yun had been told in respect of the original Complaint Letter.

48.  HWY even went further and informed EYC in its letter that the Defendants in the Civil Action “might be able to ask [the 3^rd defendant] to locate the original of the document at ‘CWK-4’ [i.e. the Complaint Letter] and expected that the same would be available for inspection at [HWY’s] office sometime [the following] week”.

49.  The plaintiff made use of these letters to show that the 3^rd defendant was lying in saying that he did not have sight of the original Complaint Letter since 30^th October 2008. 

50.  Mr. Wong, acting for the 3^rd defendant, accepted that although certain matters contained in those correspondences are hearsay evidence, they are admissible in these proceedings and the only question is the appropriate weight to be attached thereto.

51.  Mr. Lee, on the other hand, argued that hearsay evidence is inadmissible in these proceedings.  He relied on a sentence in paragraph 52/6/3 of volume 1 of the Hong Kong Civil Procedure 2011 (at page 949) which reads:

“Hearsay evidence is not admissible in cases of criminal contempts.”

52.  Although the hearsay evidence in question does not concern Mr. Lee’s clients at all, the issue concerning admissibility of hearsay evidence is dealt with below.

53.  The present committal proceedings are initiated under and governed by Order 52 of the Rules of District Court. In my judgment, these proceedings cannot be anything but civil proceedings.  The fact that criminal contempt is involved does not change the nature of these proceedings.

54.  That being the case, section 47 of Evidence Ordinance (which allows the admission of hearsay evidence in civil proceedings) clearly applies.

55.  The sentence cited by Mr. Lee from the Hong Kong Civil Procedure 2011 is backed up by a case known as R v Shokoya (The Times, 10^th June 1992 (CA)).  In reply thereto, Mr. Yu SC has drawn my attention to the case of Daltel Europe Ltd. & Others v Makki & Others [2006] 1 WLR 2704.  In this case, the English Court of Appeal held that even in a case involving criminal contempt, a flexible approach to the admission of hearsay evidence is appropriate.  This casts doubt as to whether R v Shokoya is still good law in England.

56.  In Tang Ping Kwan & Another v Excel Sky Management Ltd. (HCA 7281/2000, unreported, 7^th December 2000), Deputy High Court Judge To (as he then was) also refused to follow the approach of R v Shokoya.

57.  Further, it must be noted that even in a case involving purely allegations of civil contempt, the applicant is still required to prove his case up to the standard of beyond reasonable doubt; if that is done, the same serious consequence (imprisonment) could be resulted.  Therefore, in my view, there should not be a different rule governing the admissibility of hearsay evidence.  The Court should retain a discretion to decide whether such evidence should be admissible and if so the weight to be attached. 

58.  In Citibase Property Management Limited v Kam Kyun Tak [2003] 2 HKC 98, Ma J. (as he then was), said as follows:

“Affidavit evidence is invariably used in committal proceedings unless otherwise directed by the court: see O 38 r 2(3); Hong Kong Civil Procedure 2002 at para 52/6/3. Furthermore, hearsay evidence is permissible: see Hong Kong Civil Procedure 2002 at para 52/6/3; Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV (No 2) [1988] Ch 422. The court obviously has a discretion whether or not to disregard such evidence and is certainly duty bound to consider carefully the quality of such evidence. I would, however, make this observation: where contempt proceedings are involved, although affidavit evidence is both admissible and normal, it is important that as much first hand evidence of the actual contempt is adduced or if not, an explanation given as to why such evidence is unavailable. This is not to fetter a court’s consideration of hearsay evidence where appropriate, but no court would wish to make a finding of contempt unless the evidence to support such a finding was good. It is to be borne in mind that in contempt proceedings, there is no burden on the respondent to prove his innocence: see Concorde Construction Co Ltd v Colgan Co Ltd (No 2) [1984] HKC 253 at 257.” (at paragraph 17(1) thereof)

59.  While the paragraph quoted above was said in a case of civil contempt, in my view, it should be equally applicable to a case involving criminal contempt.  The Court no doubt should bear the quality of evidence in mind when determining whether the plaintiff has proved the case beyond reasonable doubt.

60.  There is one more matter which I should mention at this juncture.  I note that the plaintiff has not filed any hearsay notice in respect of the correspondences.  However, neither Mr. Lee nor Mr. Wong has raised any objection on the basis of the lack of such a notice. 

61.  Under sections 47, 47A and 49 of the Evidence Ordinance (Cap.8, Laws of Hong Kong), hearsay evidence should not be excluded in civil proceedings unless the party against whom such evidence is adduced objects and the exclusion of such evidence is not prejudicial to the interests of justice.  The factors set out in section 49 of the Evidence Ordinance (albeit in the context of weighing hearsay evidence) are also relevant in this regard (see High Fashion Garments Co. Ltd. v Ng Siu Tong & Others [2004] 1 HKLRD 928 at paragraph 12).

62.  When deciding on the weight of such evidence, the Court should also consider any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence and for this purpose, the Court may have regard to a number of factors referred to in section 49(2) of the said Ordinance.  While the practice of giving hearsay notices is preserved, the failure of issuing such notices is not fatal in terms of the admissibility of the evidence, although such a failure should be taken into account when the Court decides on, among other things, the weight to be given to the hearsay evidence. 

63.  Having considered all the relevant matters including the factors under section 49 of the Evidence Ordinance, in my judgment, there is no reason why full weight should not be given to the content contained in the said solicitors’ letters.

64.  In my view, it is obvious that upon enquiry, HWY only denied one of the two assertions made by EYC (which concerns “TL-2”) but not the other (which concerns the Complaint Letter).  It is thus clear that the original Complaint Letter was returned to the 3^rd defendant after HWY has taken a copy for the purpose of preparing his affirmation.  This directly contradicts the 3^rd defendant’s evidence, namely, that he did not have sight of the original Complaint Letter since 30^th October 2008.  It also shows that there was all along only one original Complaint Letter.  I do not accept the 3^rd defendant’s evidence in these respects.

65.  Mr. Wong also relied on HWY’s letter to EYC dated 5^th March 2010 in which it was stated that the original Complaint Letter “has been delivered to Mr. Chow of your client”.  He argued that this must be referring to the “delivery of the letter” back in October 2008 and hence this supported the 3^rd defendant’s evidence that that was the last time when the 3^rd defendant had sight of the Complaint Letter.  In my judgment, we should not read this letter in isolation from the other 2 letters which I referred to above.   Neither should we interpret the meaning of the word “delivery” as if we were interpreting a word contained in the statute.

Poon’s evidence

66.  Poon stated in her evidence, inter alia, that although she was quite sure that the plaintiff had not received any complaint letter from Ho Man, she still caused the plaintiff’s staff to check the plaintiff’s record upon being informed by EYC about the alleged existence of the Complaint Letter.  However, the search revealed nothing.

67.  She was cross-examined as to when she caused the search to be done, her whereabouts on 30^th October 2008 and another civil action between her and the 3^rd defendant.  Submissions had been made by the defendants as a result of these lines of cross-examination that it could not be proved beyond reasonable doubt that the plaintiff had never received any complaint letter from Ho Man on 30^th October 2008 on the basis that Poon did not personally take part in the handling of the purchase orders placed by Ho Man with the plaintiff nor in the plaintiff’s filing of documents.  It was also stated on the defendants’ behalf that the letter received on 30^th October 2008 might have been lost because of change of personnel in the plaintiff.

68.  These arguments fall away once I have accepted that the copy of Complaint Letter placed before this Court is the original letter allegedly issued on 30^th October 2008 and that it could not have been issued on 30^th October 2008.

69.  When I considered Poon’s evidence, I have borne in mind the fact that her relationship with the 3^rd defendant is obviously very bad.  As aforesaid, they are husband and wife but they are applying for divorce.  They are also involved in quite a number of civil actions against each other. 

70.  Be that as it may, I accept Poon’s evidence as credible. 

THE INDIVIDUAL COMPLAINTS

71.  With the above findings, I now analyse the complaints one after another.

The 1^st Complaint

72.  The 1^st Complaint concerns paragraph 4 of the Defence under which it was pleaded that: “The Defendants made numerous complaints to the Plaintiff about the quality of the goods between the end of October 2008 and February of 2009.”

73.  In order to succeed in these proceedings in relation thereto, the plaintiff has to prove beyond reasonable doubt that the said paragraph 4 is false in its content.

74.  In my judgment, the plaintiff has failed to do so.

75.  It is obvious from the wordings of the said paragraph 4 that the Defendants in the Civil Action were referring to more than one complaint.  Even though I am satisfied that the Complaint Letter is not a document created on 30^th October 2008 and could not have been issued on that date, there is no evidence proving to the required standard that the Defendants in the Civil Action did not make any other complaints in the period between the end of October 2008 and February 2009.

76.  Mr. Yu SC asked me to read the Defence in conjunction with the FBP.  I do not consider it appropriate to do so because the subject statements in the Defence and the FBP respectively are framed in the Grounds as two independent complaints.   

77.  Therefore, the 1^st Complaint cannot stand.

The 2^nd Complaint

78.  The subject matter under the 2^nd Complaint is the FBP filed on behalf of the 1^st defendant, 2^nd defendant and Ho Man.  This document was verified by Yeung acting on their behalf.

79.  Under Answer 5(a) of the FBP, it was stated that:

“A written complaint was made by letter dated 30^th October 2008 from [Ho Man] to the plaintiff”.

80.  In the course of his final submissions, Mr. Lee suggested that the date of the Complaint Letter (30^th October 2008) may have been wrongly printed on the Complaint Letter by mistake.  I reject this argument.  Not only was this suggestion made without any evidential basis, this is in fact contrary to the witness statements filed by the 1^st and 3^rd defendants which confirmed that the Complaint Letter was sent and received on that very day.

81.  Furthermore, the said Answer 5(a) was made to give particulars in respect of paragraph 4 of the Defence under which it was pleaded that the complaints were made between October 2008 and February 2009.  Hence, even assuming for the time being that Mr. Lee’s suggestion is possible in that the date on the said letter was wrongly printed, the “correct” date, according to the Defence, would not be later than February 2009.  In other words, it would still be before 24^th March 2009 (the date of the BOC letter), and the Answer 5(a) must still be false.  Hence, the 1^st and 2^nd defendants’ case cannot be saved by this argument. 

82.  I will now turn to the 2^nd Element (see paragraph 12(1) above).

83.  After the FBP was provided, the plaintiff proceeded to apply for summary judgment. The application was dismissed by Deputy District Judge Kent Yee.  I quote the relevant part of his Judgment for the present purpose as follows:

“The Defence is parsimonious in detail and Kinform duly asked for further and better particulars. The defendants’ answers dated 29 October 2009 disclose the following matters: […] (2) […] There was 1 written complaint by letter dated 30 October 2008 from Ho Man to Kinform.” (at paragraph 22)

“…There are two written complaints including the Complaint Letter too. Though Kinform denies having received these complaints and Mr. Lam finds the timing of such complaints suspect (sic), whether such complaints were made is really a factual dispute to be resolved at trial. At this stage I cannot accept that the defence only raised allegation of defective quality in the Defence for the first time so as to avert judgment.” (at paragraph 39)

“Despite the sterling effort of Mr. Lam, I am not convinced that summary judgment is appropriate. Most of the contentions of the defendants are evident in the defendants’ pleadings (including their Answers to Request for Further and Better Particulars of the Defence) and should be known to Kinform before Kinform took out this summons. This is a case falling squarely within O.14 r.7 and I order that the summons be dismissed in its entirety. I also make an order nisi that Kinform should pay costs of this application to the defendants including any costs reserved…” (at paragraphs 71 & 72, with emphasis added)

84.  In my view, in dismissing the plaintiff’s Order 14 application and making a cost order against the plaintiff, the learned Deputy District Judge has given much weight to Answer 5(a) of the FBP.  Such an answer in the FBP has no doubt interfered with the course of justice in some material respects.

85.  Moreover, such an answer in the FBP would undoubtedly have been part of the matters to be considered by the trial judge in the Civil Action if there were a full trial. In other words, the FBP would be likely to have interfered with the course of justice in some material respects at the trial.  It should be noted that out of the alleged complaints made by the Defendants in the Civil Action, the Complaint Letter was the only written complaint made.

86.  I therefore find that the 2^nd Element has been proved beyond reasonable doubt.

87.  By relying on Yee Sang Metal & Building Supplies Co. Ltd. & Another v Yip Yeuk Ping & Others (HCMP 2493/2002, unreported, 1^st November 2002 at paragraph 24), Mr. Lee argued that whether a document is the original copy or a photocopy is neither here nor there and it is hard to say that there is any interference with the course of justice in material respects.  With respect, Mr. Lee has overlooked a crucial fact in that case (where the only complaint made against the respondent was that he had stated in an affirmation that the subject documents were originals, when in fact they were photocopies), namely, that “it was never an issue at the time that the documents in question were forged or in some way dishonest”.  It is thus understandable why the Court in that case held that by saying “originals” rather than “photocopies” the deponent there could not be convicted of perjury or contempt of court.  The facts in the present case are apparently totally different.

88.  The remaining issue is whether the 1^st and 2^nd defendants had honest belief in the truth of the Statement of Truth and knew of its likelihood to interfere with the course of justice when such a statement was signed by Yeung for and on their behalf.

89.  I will deal with the 1^st defendant first.

90.  It is undisputed that the 1^st defendant has made an affirmation and a witness statement for the purpose of the Civil Action and stated that he has sent the Complaint Letter on 30^th October 2008.

91.  By reason of my rulings on the 1^st Element, I have no doubt that the 1^st defendant did not have honest belief in the truth of the Statement of Truth attached to the FBP when such a statement was signed by Yeung for and on his behalf.  He could not have held any honest belief that the Complaint Letter existed on 30^th October 2008 because the letter could not have existed on that day.  I reject Mr. Lee’s argument that the 1^st defendant might have mistakenly believed that the copy which was provided to him when he signed his affirmation and witness statement was a true copy because it is my finding that all along there has only been one original letter dated 30^th October 2008.  For the same reason, his argument that it is possible for the 1^st defendant to have honest belief that the date of the Complaint Letter is correct is also rejected.

92.  I also hold that the 1^st defendant knew of the likelihood to interfere with the course of justice if the false Answer 5(a) was given.  The Complaint Letter was no doubt relied on to support the defence case in the Civil Action.

93.  It is thus my finding that the plaintiff has proved this complaint against the 1^st defendant beyond reasonable doubt.

94.  Pausing here, I note that Mr. Lee argued that the well-known Ghosh test ([1982] QB 1053) on dishonesty should be applied. First of all, I hold the view that the Ghosh test has no application to the present proceedings.  Secondly, in the light of all the circumstances, I have no difficulty in coming to the conclusion that the 1^st defendant who knowingly made a false statement in the Civil Action must have acted dishonestly by the standards of ordinary and honest people and he must have realised that what he was doing was by those standards dishonest.  It must also have been his intention to interfere with the course of justice.

95.  The matter is not that straight forward as far as the 2^nd defendant is concerned. 

96.  In order to find the alleged contempt proved against her, I have to satisfy myself that she knew that the Complaint Letter in fact did not exist on 30^th October 2008. 

97.  If the 2^nd defendant has made any affirmation or witness statement stating that she personally knew of the existence of the Complaint Letter on 30^th October 2008 (like what the 1^st defendant did), then given my finding that the said letter could not have existed by then, I would have come to the conclusion that she was deliberately telling a lie on that.  However, the 2^nd defendant has never made any affirmation or witness statement to that effect.  In my judgment, it remains possible that she put forward the FBP on the basis of what she had been told by the 1^st defendant (her husband).  The 1^st defendant might or might not have told her that as a matter of fact the letter was not sent on 30^th October 2008 and that Answer 5(a) in the FBP is a false statement.  As Mr. Yu SC frankly admitted, there is little evidence in support of an inference that the 2^nd defendant must have known that in fact the letter was not sent on 30^th October 2008.  In these circumstances, I have doubt as to whether her belief expressed on her behalf in relation to the FBP was dishonest as alleged.  The 2^nd defendant should be given benefit of the doubt.  I therefore find that the plaintiff has failed to prove its case of contempt against the 2^nd defendant.

The 3^rd Complaint

98.  The 3^rd Complaint relates to paragraph 4 of the Amended Defence and Counterclaim.  It was pleaded therein that “The Defendants made numerous complaints to the Plaintiff about the quality of the goods between the end of October 2008 and February of 2009.” 

99.  For the same reasons as expressed in relation to the 1^st Complaint, it is my judgment that the plaintiff has failed to prove this complaint.

The 4^th Complaint

100.  The 4^th Complaint concerns the 1^st defendant’s witness statement which was made on 13^th December 2010.  In paragraph 20 thereof, he stated that he sent a formal letter of complaint on 30^th October 2008 to the plaintiff.  The 1^st defendant also exhibited a copy of the Complaint Letter with his witness statement. 

101.  The 1^st defendant signed a Statement of Truth himself at the end of his witness statement and confirmed that the facts stated therein are true.

102.  If the 1^st defendant were going to give evidence at the trial of the Civil Action, his witness statement must become part of the matters to be considered by the trial judge in the Civil Action.  It is therefore likely that such a statement would have interfered with the course of justice in some material respects at the trial.

103.  By reason of the findings above, I have no hesitation in ruling that the 1^st defendant had no honest belief in the truth of the witness statement as far as the Complaint Letter is concerned, and that he knew of its likelihood to interfere with the course of justice.

104.  It is therefore my finding that the plaintiff has proved the 4^th Complaint beyond reasonable doubt against the 1^st defendant.

The 5^th Complaint

105.  The 5^th Complaint relates to the 3^rd defendant’s witness statement made on 13^th December 2010 in which he stated in paragraph 26 that:

“I received a formal letter of complaint on 30^th October 2008 (copy exhibited herein and marked “CWK-5”).”

106.  The 3^rd defendant also signed a Statement of Truth and confirmed that the facts stated in his witness statement are true.

107.  I have no doubt that if the 3^rd defendant were called upon to give evidence at the trial of the Civil Action, it would be likely that his witness statement would have interfered with the course of justice in some material respects.  It should be borne in mind that he was an employee of the plaintiff at the material time.

108.  I am also satisfied that at the time when the Statement of Truth of his witness statement was made, the 3^rd defendant had no honest belief in the truth of the statement relating to the Complaint Letter.  This is because the Complaint Letter could not have been issued or received before 24^th March 2009.

109.  Mr. Wong argued that the 3^rd defendant honestly believed when he signed his witness statement that the letter exhibited therewith was a copy of the Complaint Letter.  With greatest respect, I do not accept this argument.  This argument may only make sense if I accept that the letter placed before this Court is actually only a replica of the letter which the 3^rd defendant received on 30^th October 2008.  However, as I have explained above, I do not accept that is the case. 

110.  Further, in my judgment, the 3^rd defendant must know of its likelihood to interfere with the course of justice, in particular, in the light of his relationship with the plaintiff.

111.  It is therefore my finding that the 5^th Complaint has been proved against the 3^rd defendant beyond reasonable doubt.

CONCLUSION

112.  To conclude, I find the 1^st defendant guilty of contempt of court in relation to the 2^nd and 4^th Complaints.

113.  I also find the 3^rd defendant guilty of contempt of court in respect of the 5^th Complaint.

[submissions on costs]

114.  Having considered counsel’s respective submissions, I hold that the 1^st and 3^rd defendants should bear the plaintiff’s costs in these proceedings, to be taxed on indemnity basis if not agreed, with certificate for two counsel.

115.  I make no order as to the costs of the 2^nd defendant.

116.  I shall now hear submissions on mitigation for the 1^st and 3^rd defendants respectively.