NUMERIC CITY LTD v. LAU CHI WING

CACV 53/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 53 OF 2016

(ON APPEAL FROM DCMP NO 2850 OF 2015)

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REASONS FOR JUDGMENT

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Hon Poon JA (giving the Reasons for Judgment of the Court) :

A.   INTRODUCTION

1.  This is an appeal by the plaintiff against the order of Deputy District Judge D Ho dated 15 December 2015 dismissing its application for an order of committal against the defendant with costs summarily assessed at HK$23,000.00.[1]

2.  On 5 August 2016, after hearing the parties, we dismissed the appeal with costs.  We now hand down the reasons for our judgment.

B.   Background

3.  The application for committal arose out of DCCJ 1347/2013.  There, a Madam Shi Ling Yee sued the plaintiff, the registered owner of the suit property (“the Property”) for possession on the ground of estoppel and constructive trust.

4.  Earlier in another action DCCJ 3996/2011, the plaintiff’s predecessor in title, a Madam Chan Kam Fong sued the defendant as tenant of the Property for arrears of rent.  The defendant filed a home-made defence, verified by a statement of truth, admitting to be a tenant of the Property but disputing the amount of rental as agreed by the parties (“the Defence”). However, in DCCJ 1347/2013, the defendant filed a witness statement, also verified by a statement of truth, for Madam Shi, retracting from the purported position that he took in the Defence (“the Witness Statement”).  He now denied that he was a tenant of the Property.  He explained that his earlier admission in the Defence that he was a tenant was made out of a sense of bitterness, hoping to deter Madam Chan from pursuing the matter any further.  The payments that he made to Madam Chan in the past were not rental but gratuitous payments for Madam Chan’s support of her mother.  He also gave oral evidence for Madam Shi at the trial before Deputy Judge WK Wong.

5.  After trial, Deputy Judge Wong found that Madam Shi and the defendant (and another witness called by Madam Shi) to be untruthful witnesses.  He rejected their evidence as incredible and unreliable.  Significantly for present purposes, he set out the inconsistencies of the defendant’s evidence at [63] of his judgment dated 30 July 2015.  In particular at [63(5)], he referred to the defendant’s evidence under cross-examination in respect of the Defence, noting in the end that the defendant said that what he alleged in Defence was not true.  Further, the Judge found that the defendant was in fact a tenant of the Property since 2001.  He dismissed Madam Shi’s claim and ordered her to deliver possession of the Property to the plaintiff.

6.  Deputy Judge Wong went on to observe at [83] that the defendant might be criminally liable for making inconsistent statements verified by statements of truth and that if the plaintiff were to take action, it should be done under Order 41A, rule 9 of the Rules of the District Court (“RDC”).

C.   The leave application

7.  In October 2015, the plaintiff took out an ex parte application under Order 52, RDC for leave to commence committal proceedings against the defendant on the ground that he had made the Witness Statement, which was false.  The application was supported by an affirmation of Chan Man Fai Joe, the sole director of the plaintiff dated 30 September 2015 (“Chan’s Affirmation”) and a statement dated 5 October 2015 (“the Statement”).

8.  District Judge Levy granted leave on paper on 22 October 2015.

D.   The hearing before Deputy Judge Ho

9.  The plaintiff issued the originating summons for committal on 28 October 2015.  The matter then came before Deputy Judge Ho on 15 December 2015.  By then, the only evidence before the Judge was Chan’s Affirmation together with the exhibits.  The defendant had elected not to give evidence.  Mr Cheung, counsel for the plaintiff, asked the Judge to deal with the matter summarily.  After hearing counsel’s submissions, the Judge dismissed the application with costs.

10.  Deputy Judge Ho’s reasons for his decision were reduced into writing in his Ruling of the same date.  Briefly, he took the view that Deputy Judge Wong arrived at his finding in DCCJ 1347/2013 that the defendant was a tenant of the Property on the civil standard of proof.  He must look for “something else” before he could arrive at the same conclusion on the criminal standard of proof on the evidence before him.  Although the defendant had made inconsistent statements, Deputy Judge Ho could not be satisfied that he was in fact making a false statement before him.  So he ruled that the plaintiff had not discharged the burden of proving the defendant’s contempt beyond reasonable doubt.

E.   Leave under Order 41A rule 9

E1.    The statutory requirement

11.  Order 41A, rule 9 of the RDC provides :

“ (1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

(2) Proceedings under this rule may be brought only-

(a) by the Secretary for Justice or a person aggrieved by the false statement; and

(b) with the leave of the Court.

(3) The Court shall not grant the leave under paragraph (2) unless it is satisfied that the punishment for contempt of court is proportionate and appropriate in relation to the false statement.

(4) Proceedings under this rule are subject to the law relating to contempt of court and this rule is without prejudice to such law.”

12.  Although the procedure to apply for leave is contained in Order 52, RDC, it does not distract from the need to obtain the court’s prior leave under Order 41A, rule 9(2) to commence committal proceedings.

13.  Some of the important factors which the court will consider in deciding whether to grant leave to bring contempt proceedings under Order 41A, rule 9 are summarized in Hong Kong Civil Procedure 2016, Vol 1 at §41A/9/1 at p 870 :

“ (i) A person who makes a statement verified by a statement of truth or false disclosure statement is only guilty of contempt if the statement is false and the person knew it to be so when he/she made it and;

(ii) it has to be in the public interest for contempt proceedings to be brought, and the relevant factors are that : (a) the case against the alleged contemnor must be a strong case; (b) the false statement must be significant in the proceedings; (c) whether the alleged contemnor understood the likely effect of the statement and the use to which it would be put, and; (d) the deterrent effect of contempt proceedings.

(iii) The Court must give reasons but care has to be taken to avoid prejudicing the outcome of the substantive proceedings.

(iv) Only limited weight should be attached to the likely penalty.

(v) A failure to warn the alleged contemnor at the earliest opportunity that he/she may have committed a contempt could be taken into account.

(vi) Delay in bringing proceedings for contempt is also a significant factor.  It may be oppressive to grant leave if there is a significant period of delay in bringing proceedings for contempt (KJM Superbikes Ltd v. Hinton [2008] EWCA Civ 1280 and Barnes (t/a Pool Motors) v. Seabrook [2009] EWHC 1849 (Admin).”

E2.    No leave granted under Order 41A rule 9(2)

14.  This Court was not sure how the plaintiff applied for and obtained leave from Judge Levy until after reading the lower court file shortly before the hearing on 5 August 2016 and confirming with Mr Cheung at the hearing.  Having clarified the matter, we have no doubt whatsoever that the plaintiff had not obtained the requisite leave from Judge Levy under Order 41A, rule 9(2).  The simple reason is that neither the Statement nor Chan’s Affirmation made any reference to Order 41A, rule 9.  Judge Levy’s attention was simply not drawn to it at all.  In the circumstances, she could not have granted any leave under Order 41A, rule 9(2).

15.  Mr Cheung submitted that he had in fact considered Order 41A, rule 9 when he prepared the leave application.  When he drafted Chan’s Affirmation and the Statement, he did have some of the points in the commentary in §41A/9/1 of the Hong Kong Civil Procedure 2016 in mind.  Thus it was said in both documents that the defendant did not have an honest belief in the truth of the Witness Statement when he made it and he made it to mislead the court, hence to interfere with the administration of justice and that it was in the public interest to commit him accordingly.  Further, the judgment of Deputy Judge Wong was exhibited to Chan’s Affirmation.  When one read [83] of his judgment, one was clear that the plaintiff was proceeding under Order 41A, rule 9.  Mr Cheung therefore submitted that when reading the Statement and Chan’s Affirmation, Judge Levy must have been fully aware of the basis of the leave application, that is, it was brought under Order 41A, rule 9.  He further submitted that Judge Levy must be taken to have been familiar with the RDC including Order 41, rule 9 when she dealt with the leave application.  So, Mr Cheung reasoned, the failure to refer to Order 41A, rule 9 was just a technical slip.  Judge Levy must have granted leave under Order 41A, rule 9.  With the greatest respect, we disagree.

16.  An application for leave to commence committal proceedings is made ex parte to a judge who will usually determine the application without an oral hearing.  In an ex parte application, the applicant has a duty to make full and frank disclosure.  This duty applies with full force and rigour to an application for leave to commence committal proceedings because of its penal nature and the serious consequences that might befall the alleged contemnor.  It is therefore incumbent upon the applicant to draw the judge’s attention to all matters which are material to his application, including, where applicable, the provisions in the rules of court which he seeks to rely on.  When he fails to do so, it lies ill in his mouth to say that the judge is expected to be familiar with the rules and can discern the statutory basis of the application by going through the supporting materials himself.

17.  The need to refer to Order 41A, rule 9 is of paramount importance.  For the court always approaches with extreme caution an application for leave to cite a person for contempt for giving a false statement verified by a statement of truth without an honest belief in its truth.  As explained by Moore-Bick LJ in KJM Superbikes Ltd v Hinton [2009] 1 WLR 2406 :

“ 16. Whenever the court is asked by a private litigant for permission to bring proceedings for contempt based on false statements allegedly made in a witness statement it should remind itself that the proceedings are public in nature and that ultimately the only question is whether it is in the public interest for such proceedings to be brought. However, when answering that question there are many factors that the court will need to consider. Among the foremost are the strength of the evidence tending to show not only that the statement in question was false but that it was known at the time to be false, the circumstances in which it was made, its significance having regard to the nature of the proceedings in which it was made, such evidence as there may be of the maker’s state of mind, including his understanding of the likely effect of the statement and the use to which it was actually put in the proceedings. Factors such as these are likely to indicate whether the alleged contempt, if proved, is of sufficient gravity for there to be a public interest in taking proceedings in relation to it. In addition, the court will also wish to have regard to whether the proceedings would be likely to justify the resources that would have to be devoted to them.

17. In my view the wider public interest would not be served if courts were to exercise the discretion too freely in favour of allowing proceedings of this kind to be pursued by private persons.  There is an obvious need to guard carefully against the risk of allowing vindictive litigants to use such proceedings to harass persons against whom they have a grievance, whether justified or not, and although the rules do not prescribe the class of persons who may bring proceedings of this kind, the court will normally wish to be satisfied that the applicant was liable to be directly affected by the making of the statement in question before granting permission to bring proceedings in respect of it.  Usually the applicant will be a party to the proceedings in which the statement was made, but I would not exclude the possibility that permission might be granted to someone other than a party if he was, or was liable to be, directly affected by it.  In my view there is also a danger of reducing the usefulness of proceedings for contempt if they are pursued where the case is weak or the contempt, if proved, trivial.  I would therefore echo the observation of Pumfrey J. in the Kabushiki Kaisha Sony Computer case [2004] EWHC 1192(Ch) at [16] that the court should exercise great caution before giving permission to bring proceedings.  In my view it should not do so unless there is a strong case both that the statement in question was untrue and that the maker knew that it was untrue at the time he made it.  All other relevant facts, including those to which I have referred, will then have to be taken into account in making the final decision.”

18.  In our view, it is always incumbent upon an applicant who wishes to cite a person for contempt for making a false statement to state explicitly that he is seeking leave under Order 41A, rule 9(2) so that the court’s vigilance is aroused.  The applicant should also set out the facts and matters which he relies on in contending that it is in the public interest to permit his application be brought.  The court will then carefully vet the application according to the guidance as laid down by the authorities.  It will only give leave when it is satisfied that the punishment for contempt is proportionate and appropriate in relation to the false statement.  This filtering process ensures that the disincentive in Order 41A against a party making a false statement will not be misused or abused.

19.  We fail to understand why Mr Cheung could have failed to refer to Order 41A, rule 9 in the supporting documents for the leave application when according to him he had in fact consulted it and the commentary at §41A/9/1 of the Hong Kong Civil Procedure 2016.  In any event, for the reasons stated, we do not accept that it would be treated as a technical slip.  Even though leave had been granted by Judge Levy under Order 52, it could not possibly be assumed, as Mr Cheung argued, that she had also granted leave under Order 41A, rule 9(2).

20.  A failure to obtain leave under Order 41A, rule 9 alone will ordinarily result in the dismissal of the application for an order of committal.  However, the court has the power to cure the irregularity in exceptional circumstances.  In the context of Order 52, the court may exercise its discretion under Order 2, rule 2 to rectify the error of failing to obtain leave to commence committal proceedings if the judge seized of the matter would have granted leave without hesitation and where there is no injustice : see Fabrique Ebel Societe Anonyme v MBO Far East (HK) Ltd [1985] 1 HKC 166, per Hunter J at pp 169H – 170B; endorsed by the Court of Appeal in Effiscient Ltd v Lehman [2012] 3 HKLRD 671, per Kwan JA at [24].  We think the same test should apply in the context of Order 41A.

21.  Here, as said, the plaintiff had not obtained leave from Judge Levy under Order 41A, rule 9(2).  Nor had it applied for leave before Deputy Judge Ho to cure the irregularity.  That being the case, the plaintiff’s application for contempt must be dismissed without going into the merit.  Its appeal must also fail on this ground alone.

22.  What we have said so far is sufficient to dispose of the appeal.  For completeness, we would deal with the plaintiff’s evidence adduced in support of the contempt.  In the course of our discussion, we will lay down some general guidance on the evidence for contempt proceedings.  The guidance should apply to contempt proceedings in both the District Court and the High Court.

F.    Evidence

F1.    General principles

23.  In Citybase Property Management Ltd v Kam Kyun Tak (No 1) [2003] 2 HKC 93, Ma J (as the Chief Justice then was) had this to say on the use of evidence in contempt proceedings :

“ 17. Having said that the standard of proof is the criminal one (ie beyond reasonable doubt), I should however point out what may possibly be regarded as anomalies in this type of proceedings :

(1)   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.”

Subject to what we have to say below on hearsay evidence, we respectfully agree with his Lordship’s observations.

24.  We digress to deal with the proposition advanced in Hong Kong Civil Procedure 2016, Vol 1, §52/6/3 at p 1017 that hearsay evidence is admissible in civil contempt but not criminal contempt.  In support of this proposition, the learned editors cited R v Shokoya, The Times, June 10 1992, CA.  It seems that the differential treatment in admission of hearsay evidence is based on the fact that the committal proceedings are for criminal contempt and not civil contempt.  Insofar as it is the purported basis for refusing to admit hearsay evidence for criminal contempt proceedings brought under Order 52, it can no longer stand.  For this Court (Cheung CJHC, Yeung and Lam VPP) held recently in Secretary for Justice v Cheung Kai Yin, CACV 69/2016, unreported, 1 August 2016, that committal proceedings brought under Order 52, be it for civil or criminal contempt, are civil proceedings.

25.  Further, when properly understood, R v Shokoya does not support the very general and unreserved proposition that affidavit evidence is not admissible in contempt proceeding for criminal contempt brought under Order 52.  In that case, the appellant gave evidence at committal proceedings launched against a man charged with a serious offence of wounding.  The appellant, one of the victims, was a fully bound prosecution witness at the trial.  The trial date was fixed and the appellant notified but because of administrative difficulties the date had to be altered.  On that and a later date fixed neither the appellant nor two other witnesses appeared, and the accused had to be discharged.  Two days later the appellant surrendered to the crown court and was kept in custody for six days, until the enquiry into his absence when he was required as a witness.  At the enquiry the judge heard evidence from the police officer in charge of the proceedings that he had told the mother of one of the other witnesses of the new date and she had confirmed that she had told the appellant of that.  However, she was not called to give evidence.  The English Court of Appeal took the view that the judge had referred to evidence which was inadmissible in reaching his conclusion, namely that the appellant was aware of the date of the trial and had nevertheless not put in an appearance.  As can be readily seen, the contempt proceedings in R v Shokoya were summary proceedings.  They were not brought under Order 52.

26.  In fact, in a more recent case of Daltel Europe Ltd v Makki and others [2006] 1 WLR 2704, the English Court of Appeal held that hearsay evidence is admissible in contempt proceedings brought under the English CPR, whether for civil or criminal contempt, which are regarded as civil proceedings for that purpose.

27.  For the reasons given, a general proposition that hearsay evidence is inadmissible in contempt proceedings for criminal contempt brought under Order 52 is wrong in law.  It must be rejected.  Hearsay evidence is admissible for contempt proceedings brought under Order 52, irrespective of whether it is civil or criminal contempt, because they are civil proceedings.

28.  Returning to the use of hearsay evidence in contempt proceedings, we note in Citybase Property Management Ltd v Kam Kyun Tak (No 1), the court had not discussed the wider implications flowing from the penal nature of the process and the effects of article 10 and 11 of the Hong Kong Bill of Rights, Cap 383 (“HKBOR”) on it.  This is an area which merits a closer attention, especially in light of the recent development of international jurisprudence on similar provisions in the European Convention on Human Rights (“ECHR”).

29.  In terms of use of evidence, article 11(2)(e) of the HKBOR is relevant.  It entitles a person facing a criminal charge, which includes contempt :

“ to examine, or have examined, the witnesses against him…”

This right materially impacts on the use of hearsay evidence in contempt proceedings in that the court must ensure that the admission of the hearsay evidence is compatible with the putative contemnor’s right to cross-examine the witnesses against him as guaranteed in the particular circumstances of the case.

30.  Article 11(2)(e) of the HKBOR is substantially similar to article 6(3)(d) of the ECHR.  Thus the principles adopted by the European Court of Human Rights on compatibility of admission of hearsay evidence with article 6(3)(d) helpfully inform the correct approach to the same question under our article 11(2)(e).  Those principles have been recently summarised by the European Court of Human Rights in Al-Khawaja v United Kingdom (2012) 54 EHHR 23 and Horncastle v United Kingdom (2015) 60 EHHR 31.  In the latter case the Court said :[2]

“ 130. As the Court has consistently underlined, the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair.[3]

131. In Al-Khawaja,[4] the Grand Chamber reiterated that the guarantees in (3)(d) are specific aspects of the right to a fair hearing set forth art.6(1) which have to be taken into account in the assessment of the overall fairness of proceedings. In making this assessment, the Court will look at the proceedings as a whole having regard to the rights of the defence but also to the interests of the public and the victims that crime is properly prosecuted and, where necessary, to the rights of witnesses. Art.6(3)(d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings.[5]

132. The grand Chamber set out two requirements which flow from the general principle identified. First, it has to be established that there was a good reason for the non-attendance of the witness. Secondly, even where there was a good reason, where a conviction is based solely or to a decisive extent on statements made by a person whom the accused has had no opportunity to examine, the rights of the defence might be restricted to an extent incompatible with the guarantees of art.6. Accordingly, when the evidence of an absent witness is the sole or decisive basis for a conviction, sufficient counterbalancing factors are required, including the existence of strong procedural safeguards, which permit a fair and proper assessment of the reliability of that evidence to take place.[6]

133. It is plain that, where a witness has died, in order for his evidence to be taken into account it will be necessary to adduce his witness statement if his evidence is to be taken into account.[7] Where absence is the result of fear, a distinction can be drawn between fear attributable to threats or other actions of the defendant or those acting on his behalf and fear attributable to a more general fear of what will happen if the witness gives evidence at trial. In the former case, it is appropriate to allow a statement of that witness to be introduced at trial even if it is the sole or decisive evidence against the defendant, because to allow the defendant to benefit from the fear he has engendered in witnesses would be incompatible with the rights of victims and witnesses. As to the latter, there is no requirement that a witness’s fear be attributable directly to threats made by the defendant in order for that witness to be excused from giving evidence at trial. This does not mean, however, that any subjective fear of the witness will suffice. The trial court must conduct appropriate enquiries to determine, first, whether or not there are objective grounds for that fear, and, second, whether those objective grounds are supported by evidence. In all cases, where no prior examination of the witness has taken place, the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort. The trial court must be satisfied that all available alternatives, such as witness anonymity and other special measures, would be inappropriate or impracticable.[8]

134. As far as the “sole or decisive” rule is concerned, as was pointed out by the Grand Chamber in its judgment in Al-Khawaja, “decisive” in this context means more than “probative” or that, without the evidence, the chances of a conviction would recede and the chances of an acquittal advance. It should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence; the stronger the corroborative evidence, the less likely that the evidence of the absent witness will be “decisive”.[9]”

31.  In England, the courts apply the same principles in addressing compatibility of admission of hearsay evidence in contempt proceedings with article 6(3)(e) of the ECHR : see Daltel Europe Ltd v Makki and others, supra, at [52] – [57].

32.  In our view, these principles propounded by the European Court of Human Rights and adopted by the English courts are equally applicable in considering compatibility of admission of hearsay evidence in contempt proceedings with article 11(2)(e) of the HKBOR.[10]

33.  The right guaranteed under article 11(2)(e) of the HKBOR also impacts on the admission of affidavit evidence without calling the deponent.  Under Order 38, rule 2(3), the court may upon application by any party order the attendance of the deponent of the affidavit for cross-examination and if he does not attend, his affidavit shall not be used as evidence without the leave of the court.  In determining the putative contemnor’s application for cross-examining a deponent on his affidavit and the question whether to use his affidavit if he does not attend, the court must ensure that its decision is compatible with the putative contemnor’s right as guaranteed by article 11(2)(e).  In so doing, the same principles on admission of hearsay evidence as set out above equally apply.

F2.    The plaintiff’s evidence

34.  Turning to the present case, the only evidence adduced by the plaintiff before Deputy Judge Ho was Chan’s Affirmation together with the exhibits including Deputy Judge Wong’s judgment and the transcripts of Madam Chan’s evidence in DCCJ 1347/2013.  When Mr Cheung asked the Deputy Judge to dispose of the application summarily, he was confident that the evidence was sufficient to enable the plaintiff to discharge the burden of proving the defendant’s contempt beyond reasonable doubt.  With respect, his belief was misguided.

35.  In citing a person for contempt for making a false statement under Order 41A, rule 9, the applicant must prove each of the following three elements of contempt beyond reasonable doubt :

(1)   the falsity of the statement in question;

(2)   the statement has or would have interfered with the course of justice in some material respects; and

(3)   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.

See Walton v Kirk [2009] EWHC 703, at [14].        

36.  The first thing that the plaintiff needs to prove is the falsity of the Witness Statement.  In this regard, one crucial matter that the plaintiff needs to prove beyond reasonable doubt is that the defendant was in fact a tenant of the Property, contrary to what he alleged in the Witness Statement.  This really lays the foundation of the contempt against the defendant.

37.  Mr Cheung first relied on Deputy Judge Wong’s finding on this matter in DCCJ 1347/2013.   However, Deputy Judge Wong’s finding is just an opinion expressed on the admissible evidence before him in DCCJ 1347/2013.  His finding is not evidence that the defendant was a tenant of the Property since 2001 for the purpose of the contempt proceedings before Deputy Judge Ho.

38.  Mr Cheung next relied on the transcripts of Madam Chan’s evidence in DCCJ 1347/2013.  However this is hearsay evidence for the purpose of the contempt proceedings before Deputy Judge Ho.  It does not appear that the plaintiff had any difficulty in calling Madam Chan to give evidence in the contempt proceedings.  So the plaintiff ought to have asked her to make an affidavit to give first-hand evidence on the matter and tendered her for cross-examination.  Absent any good explanation why Madam Chan’s first-hand evidence was not available, it was not enough to simply exhibit the transcripts of her evidence in DCCJ 1347/2013 to prove that the defendant was a tenant of the Property, a decisive component of the contempt against him.  The use of the transcripts in the circumstances would be incompatible with the defendant’s right under article 11(2)(e) of the HKBOR.

39.  For the above reasons, the plaintiff had failed to discharge its burden of proving beyond reasonable doubt the defendant’s alleged contempt by simply relying on Chan’s Affirmation and the exhibits.

G.   Conclusion

40.  Although Deputy Judge Ho’s reasons differ from ours, he is correct in dismissing the plaintiff’s application on the evidence before him.  We therefore dismissed the plaintiff’s appeal with costs.