CHAN WAI TAK v. CHIU KWOK KUEN

HCMP 899/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 899 OF 2010

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BETWEEN

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J U D G M E N T

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Introduction

1.  This is the application for the defendant to be committed for contempt of court.  Leave to do so was given on 16 April 2010.

2.  This application stems from an undertaking given by the defendant on 4 December 2010 in HCA 2321/2009 (“the underlying action”).  The defendant was (and still is) the 3^rd defendant in the underlying action.

The Defendant’s Undertaking and the Alleged Breach

3.  The defendant’s undertaking given on 4 December 2010 was:-

“(a)   The [defendant] must not enter, stay in or attend any premises in which [佛山市富池貿易有限公司 (“Fosan Wealthypond”)] carries on its business or operation.

(b)   The [defendant] must not operate, manage, conduct or otherwise participate or assist in the operation, management or conduct of the business of [Fosan Wealthypond].”

4.  The statement in support of this application alleges that the defendant:-

“… did enter, stay in or attend the premises in which [Fosan Wealthypond] carried on its business or operation, namely the office of [Fosan Wealthypond] at 中國上海市淮海路香港廣場南座1001室; and/or … did operate, manage, conduct and/or participate or assist in the operation, management and/or conduct of the business of [Fosan Wealthypond] at the said office … ” (para. 14(a)(i) and (ii) thereof).

Important Documents

(a)   The Defendant’s E-mail

5.  The plaintiff produced an e-mail dated 7 December 2009 to show that the defendant took part in the business of Fosan Wealthypond (“the defendant’s e-mail”).  The defendant’s e-mail was in reply to an earlier e-mail sent on the same date.  The earlier e-mail was sent by a clerk of Fosan Wealthypond seeking approval for delivery to fulfill an order placed by a customer of Fosan Wealthypond.  The defendant’s e-mail approved the delivery.

6.  The defendant denies having sent the defendant’s e-mail.  It was suggested during closing submissions the defendant’s e-mail could have been sent by someone else.  It was also suggested it is possible the defendant’s e-mail was sent from outside of Fosan Wealthypond’s office.

7.  The above suggestions are unsupported by evidence except the defendant’s testimony (which, as stated under the next heading below, is rejected as being untruthful).  I reject the suggestions as fanciful.

8.  Taking the factual circumstances and the admissible evidence as a whole, I find that full weight should be given to the defendant’s e-mail.

(b)   The Disputed E-mail

9.  The defendant produced an e-mail allegedly sent on 30 March 2010 by a Mary Lu, one of the plaintiff’s witnesses; the authenticity of the e-mail is disputed by the plaintiff (“the disputed e-mail”).

10.  The disputed e-mail shows that Mary Lu wrote to the plaintiff (subsequent to an e-mail sent to her by the plaintiff’s solicitors) stating in essence:-

(a)   she was uncertain of the dates when the defendant was in Shanghai (which in the context of this application must mean the dates when he attended the office of Fosan Wealthypond);

(b)   despite her uncertainty, the plaintiff’s solicitors insisted that, since the testimony would only be used in Hong Kong, there would not be any trouble even if she lied;

(c)   neither Veronica (which in context must mean 卞敏, a clerk of Fosan Wealthypond) nor Suki (which in context must mean 程琦, the financial controller of a Juran Company (巨然公司)) knew the defendant. Therefore she told the plaintiff’s solicitors she was unwilling to sign the court document, or to “put her hand print” on the letter sent by the plaintiff’s solicitors;

(d)   she asked the plaintiff to pay her RMB50,000 and pay the others RM30,000 each for signing the evidence.

As stated above, the plaintiff denies the genuineness of the disputed e-mail.

11.  The plaintiff has demonstrated that the disputed e-mail could be fabricated.  He also deposed that e-mails which have been fabricated would exhibit the following characteristic, which can also be found in relation to the disputed e-mail; namely, in the related header report, a line:-

“To:<A href=“mailto: [the fabricated recipient e-mail address]”>[the fabricated recipient e-mail address]</A><BR>Subject : … ”

can be found.

12.  I accept the plaintiff’s demonstration and find that the disputed e-mail could well have been fabricated.  I also accept the reasons put forth in the plaintiff’s written closing submissions for rejecting the claim that the disputed e-mail was sent by Mary Lu.

13.  No weight is therefore placed thereon. 

(c)   The Defendant’s Admission

14.  The plaintiff also produced an e-mail sent by the defendant on 23 June 2010 (“the defendant’s admission”).  The defendant’s admission was part of a series of e-mail passing between him and another defendant in the underlying action, Tandy Chan.

15.  The series commenced with an e-mail sent by the defendant to Tandy Chan where the defendant asked the latter to reimburse him for 2 air tickets.  When Tandy Chan asked why he should do so, the defendant wrote:-

“WHY, because after [Fosan Wealthypond] was captured back from [the plaintiff], I was stayed [sic] in [Shanghai] to take care the office, in December there was a injunction [sic] undertook me [which in context must mean the defendant’s undertaking], you said it was ok, no problem, pasted Juran in the office front door, continue to stay there.

…

You know how to protect yourself, what about me, I was in the front line like a battle field during those days, where are you???

…

Now, I am involved in this undertake action [which in context must mean this application],

You and [Fosan Wealthypond] must responsible [sic] for all the legal fee and traffic arrangement. I wish I don’t need to come back for this, who knows, may be I will be in jail not you”.

The defendant does not deny he wrote and sent the defendant’s admission.

16.  During closing submissions, the defendant suggested that the defendant’s admission does not amount to an admission that he continued to stay in the office of Fosan Wealthypond after the defendant’s undertaking was given.  It was said the defendant was merely stating what Tandy Chan told the defendant.

17.  I reject the suggestion.  The defendant admission shows the defendant’s persistent request for reimbursement from Tandy Chan.  He also attempted to justify the request.  To do so, he said in effect he had taken the risk of going to prison for the benefit of Tandy Chan (possibly others also) by continuing to go back to the office of Fosan Wealthypond.

18.  It is proper in all the circumstances to place full weight on the defendant’s admission.

Witnesses’ Credibility and Reliability

19.  The plaintiff himself testified, and called Mary Lu (and 3 others) to testify as well. The defendant also testified.  In short, I accept the plaintiff’s witnesses to be truthful and reliable witnesses.  On the other hand, I find the defendant to be dishonest insofar as his testimony denies breach of the defendant’s undertaking.

20.  Mary Lu’s testimony is crucial to the plaintiff’s case regarding the defendant’s attendance at the office of Fosan Wealthypond. Mary Lu was then the general manager of that office (from April 2008 to February 2010).  She testified in short that the defendant attended that office to deal with the business matters during that period.  She said she was particularly sure the defendant did so:-

(1)   from 29 to 31 December 2009; and

(2)   on 12 and 13 January 2010.

Although she also mentioned a period from 9 to 11 February 2010, that period was not relied upon by the plaintiff.  Further, in the course of cross-examination, she slightly changed her testimony by saying the defendant was present on either of 12 and 13 January 2010.

21.  Several criticisms have been levied against Mary Lu’s credibility and reliability; the more important criticisms include the following.

22.  First, it was pointed out Mary Lu asserted in her 2^nd affirmation:-

(a)   in her e-mails to the plaintiff, she seldom addressed him as “Victor”; instead, she usually addressed him as “boss”;

(b)   in her e-mails to her colleagues, such as卞敏 and 裴敏 , she would not use their English names, but only the Chinese names.  This is because her English level was not high.

However, in e-mails shown to her during cross-examination, she has addressed the plaintiff as “Victor” (and the defendant as “Mike”) and used the English names “Veronica” and “Suki”.

23.  Mary Lu explained that, because the plaintiff and the defendant were from Hong Kong, they usually addressed some of the staff, such as Veronica and Suki, using their English names.  She sometimes followed the practice and copied the English names in some of her e-mails.

24.  Only one or two e-mails were produced by the defendant for this purpose.  It has not been suggested to Mary Lu during her cross-examination she commonly adopted such practice. For these reasons, and the other reasons set out under this heading, I accept her explanation.

25.  Secondly, the defendant relies on the return train tickets dated 12 January 2010 (from Hong Kong to Guangzhou and back) to show that Mary Lu was lying and/or mistaken in saying he was in Shanghai on that day.

26.  I am prepared to approach Mary Lu’s testimony on the assumption she was either untruthful or wrong regarding the defendant’s presence in Shanghai on 12 January 2010 (see also para. 39 below). 

27.  Even in such case, I find the rest of Mary Lu’s testimony to be truthful and reliable.  In so concluding, I have taken into account (among other things) the defendant’s e-mail and the defendant’s admission.  I also note that Mary Lu has changed her testimony in this regard to either one of 12 and 13 January 2010 during cross-examination without being shown, or reminded of, the defendant’s return train tickets.

28.  The defendant also drew my attention to the absence of quite a few deponents of the affirmations filed by the plaintiff.  While an adverse inference can be drawn against a party for its failure to call such deponents, I find it inappropriate to draw such an inference in this application.

29.  The defendant also attempted to rely on the fact that only the defendant’s e-mail was produced by the plaintiff.  This is said to be implausible in view that Mary Lu’s testimony claims that the defendant attended the office for more than a few days. However, because such matter has not been put to Mary Lu during cross-examination, I do not consider it fair to allow the defendant to rely on such a point.

30.  On the other hand, I find the defendant to be a dishonest witness taking into account the defendant’s admission and the defendant’s e-mail.  I also prefer the testimony of Mary Lu to that of the defendant.

Conclusion

31.  By reason of the matters set out above, and subject to para. 40 to 43 below, I am satisfied beyond reasonable doubt that the defendant has breached the defendant’s undertaking in the manner set out in the statement in support of this application.  In relation to the period from 12 to 13 January 2010, I find the defendant to have attended the office of Fosan Wealthypond on 13 January 2010.

32.  I therefore find him to be guilty of contempt of court.

Late Disclosure of Immigration Record

33.  At the close of the defendant’s case, the defendant sought to produce an immigration record dated 5 July 2010 showing that he departed Hong Kong for the Mainland in the morning of 12 January 2010 and returned to Hong Kong from the Mainland that late evening.

34.  The purpose of producing the record is to cast doubt on the part of Mary Lu’s testimony concerning the defendant’s presence in Shanghai on 12 January 2010.

35.  Having heard the parties’ submissions, I refused to give the defendant leave to produce the record.  This is because:-

(1)   the defendant has repeatedly been guilty of delay in filing affirmations.  The first delay in filing an affirmation resulted in the original hearing in November 2010 being adjourned to January 2011.  The second delay took place when he sought leave to file an affirmation out of time on the first day of the hearing scheduled to commence in January 2011.  No valid reason was given for the delay;

(2)   he admits the immigration record was obtained as early as July 2010 (before he filed an affirmation in August 2010).  His explanation that he has forgotten it is both lame and inconsistent with what his legal advisers disclosed (namely, the record was disclosed by him to them in November 2010 and he decided to withhold it until the January 2011 hearing).

A deliberate decision to delay disclosing relevant evidence to the court and the other party is deplorable, especially after the coming into effect of the “new” Rules of the High Court as a result of the Civil Justice Reform.  It can be treated as contumelious default: Hong Kong Civil Procedure 2011, Vol. 1, para. 25/L/3.

36.  The defendant argues he should be at liberty to produce evidence favourable to him as and when he wishes.  This is because he is afforded the constitutional right to remain silent.  I reject this argument: it is one thing for a defendant to be able to remain silent, it is another thing to argue that somehow for that reason he is effectively immune from all case management powers of the court.  This argument may be invalid even in the criminal courts.

37.  Thus, Arlidge, Eady & Smith on Contempt (2005) 3^rd Ed. says:-

“A respondent to a committal application is not a compellable witness … Nevertheless, the court by virtue of its power to regulate its own procedure is entitled to require respondents to swear affidavits or produce statements of witnesses as to facts upon which they may wish to rely, in advance of the hearing, so as to afford the applicant an opportunity of preparing evidence in reply … ” (para. 15-35).

(see also Miller: Contempt of Court (2000), para. 2.10 to 2.11).  It must be implicit that, in filing affirmation and/or statement, the respondent (in this application, the defendant) should also include all relevant evidence (especially documentary evidence) he wishes to rely on.

38.  The immigration record no doubt can be relevant to the assessment of the credibility and reliability of the plaintiff’s witnesses (especially that of Mary Lu).  That factor is in the defendant’s favour.  On the other hand, the matters set out in para. 35 to 37 above are against his application.

39.  Having considered the whole circumstance, I decided to exercise my discretion in refusing the application.  However, as stated above, I have for the sake of completeness also assessed credibility and reliability assuming the immigration record had been placed before me.

Other Matters

40.  The defendant contends that, even if the court is satisfied that the defendant’s e-mail was written and sent by the defendant, this is still insufficient to establish the plaintiff’s case alleging that he:-

“… did operate, manage, conduct and/or participate or assist in the operation, management and/or conduct of the business of [Fosan Wealthypond] at the office at 中國上海市淮海路香港廣場南座1001室… ” (para. 14(a)(ii), statement in support of this application).

41.  The contention is based on the observation in Hong Kong Civil Procedure 2011, Vol. 1, para. 52/2/6:-

“The statement in support of the application is to be treated in a similar manner as an indictment in criminal proceedings having regard to the penal nature of the sanctions for contempt … ”.

The defendant says that all the averments set out in the grounds have to be proven, including the office address of Fosan Wealthypond.  However, (so he argues) there is no direct evidence as to where the defendant’s e-mail was written or sent from.

42.  Even in criminal proceedings, not all averments set out in an indictment are necessarily material averments.  The prosecution only needs to prove the latter.  The place of the offence may or may not be material: Blackstone’s Criminal Practice 2011, para. D11.37; Archbold Hong Kong 2011, para. 1-112 to 1-115 and 1-121.

43.  Applying the same principles to the facts of this application, I find that the place of the contempt to be an immaterial averment.  The gravamen of the contempt lies in the defendant’s operation, management and/or conduct of the business of Fosan Wealthypond.

44.  But even if such were a material averment, the whole of the evidence is sufficient for an inference to be drawn that the defendant’s e-mail was written and sent from the office of Fosan Wealthypond: Mary Lu’s testimony shows that the defendant was present in the said office at the time when the defendant’s e-mail was sent.

45.  Because there is evidence which indicates the disputed e-mail may be a forged document, the matter should be referred to the Department of Justice for it to consider if further investigation is required.