SINO WOOD INVESTMENT LTD v. WONG KAM YIN

HCA 307/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 307 OF 2002

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J U D G M E N T

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1. On 10 July 2003, I gave leave to the Plaintiff to apply for an order of committal against the Defendant as well as a Mr Lee Yat Kwong. Notices of Motion were duly filed, seeking orders that the Defendant and Mr Lee be committed to prison and/or fined for their respective (alleged) contempts of court.

2. I now have a summons before me taken out on behalf of the Defendant and Mr Lee, seeking directions for the further conduct of the contempt proceedings, an order to strike out certain parts of the affirmations filed by the Plaintiff, and an order to set aside the leave granted by me previously and to dismiss the Notice of Motion against the Defendant in respect of one particular ground set out in the O 52 r 2(2) statement.

3. I will deal with the two substantive applications first, and return to the procedural application afterwards.

4. I have already set out and indeed discussed, albeit concisely, the background, the material facts, and the pleaded issues in dispute between the parties, in an earlier judgment of mine handed down on 23 December 2002, when I dealt with the Plaintiff's application for Mareva relief. I will not repeat the same here.

5. As regards the application to strike out certain parts of the supporting affirmations, the allegedly offending paragraphs are paragraph 18 of the 3rd affirmation of Chan Wai Ling (Ms Chan) and those parts of paragraph 6 of the 14th affirmation of Siu See Kong starting with "With regard to paragraph 18 of Ms Chan's 3rd affirmation" up to the end of the same paragraph, together with exhibit "SSK-55" to the 14th affirmation.

6. The paragraphs (and supporting exhibit) in question refer to obviously hearsay allegations that the Defendant has through others made "murder threats" to Mr Yaw Chee Siew, a director and allegedly the ultimate beneficial owner of the Plaintiff.

7. Mr Scott SC, appearing with Mr Anson Wong, for the Defendant and Mr Lee, complains strongly that these hearsay allegations are highly offensive and prejudicial, totally irrelevant, defective in form and inadmissible.

8. I agree that the paragraphs and exhibit in question should be expunged. The alleged contempt in question is the Defendant's (alleged) interference with Ms Chan, a "potential witness" - see below. Mr Ng, appearing for the Plaintiff, does not dispute that in order to establish the charge, the Plaintiff need not prove that the (potential) witness (i.e. Ms Chan) was as a matter of fact threatened or that she actually felt threatened by the acts complained against the Defendant. See Re B (JA) (an infant) [1965] Ch. 1112, 1123C-D (per Cross J), discussed in Lowe and Sufrin, The Law of Contempt (3rd ed.) 403 relied on by Mr Scott.

9. The avowed reason for introducing the various serious allegations against the Defendant is to explain the state of mind of Ms Chan and the genuine alarm caused by the Defendant's various actions under complaint. Given that whether Ms Chan actually felt threatened by what the Defendant allegedly did is not a necessary element of the charge in question, I fail to see the relevance of the state of mind of Ms Chan, and a fortiori, the hearsay allegations of murder threats.

10. Mr Ng faintly suggested during the hearing that the allegation of murder threats may also be relevant to "sentencing". I do not accept the submission at all. In any event, even if this was the case, I would still exercise the court's undoubted discretion in the matter (which Mr Ng very fairly accepts) to strike out the allegations, given the highly prejudicial, scandalous and hearsay nature of the allegations, at this stage of the contempt proceedings. If the contempt was eventually established, and if the court was of the view that whether Ms Chan was actually threatened was material to "sentencing", the court could at that stage consider giving leave to put in evidence regarding the same. To allow the allegations to remain in evidence at this stage would, amongst other things, only serve to widen rather unnecessarily the scope of evidence and controversies that the court may be faced with at the substantive hearing, not to mention the allegations' obvious prejudicial effect.

11. In those circumstances, I am with Mr Scott, and in the exercise of my discretion, having borne in mind the whole circumstances of the case as well as the various specific objections, I make an order in terms of paragraph 2 of the summons stated 25 August 2003.

12. As regards the complaint against paragraph 4(a) of the O 52 r 2(2) statement, it centres on the allegation that Ms Chan was "a potential witness in the present proceedings". Mr Scott's argument here is that the statement, which is similar to an indictment in criminal proceedings - bearing in mind that one is concerned with a criminal contempt here, has failed to contain "sufficient particularity to enable the alleged contemnor to defend himself, by telling him exactly what is it that he has done or failed to do which constitutes the contempt, or full particulars of the conduct alleged to be a contempt in a case of criminal contempt": Hong Kong Civil Procedure 2002, vol. 1, para. 52/2/6; see also Chiltern District Council v Keane [1985] 1 WLR 619, 622; Harmsworth v Harmsworth [1987] 1 WLR 1676. Mr Scott quite correctly submits that the court adopts a strict approach regarding the content of an O 52 r 2(2) statement, and any defects in the statement cannot be cured by the supporting affidavit: Aqua-Leisure Industries Inc. v Aqua Splash Limited HCA 18928/1998 Yeung J (18 April 2001).

13. Again I am with Mr Scott here. It is true that Ms Chan has made two affirmations in the past in support of the Plaintiff's application for Mareva relief against the Defendant. I am prepared to accept Mr Ng's argument that that fact constitutes part of the known background of the present application for an order of committal, so that the Defendant should be taken to have knowledge of that fact, even though the same has not been mentioned at all in the statement. However, it must be remembered that the present charge of contempt is not in relation to reprisal against witnesses (treating a deponent as a witness), regarding what Ms Chan has done in the past in making her two affirmations. The charge of contempt in the present proceedings relates to Ms Chan's status as a "potential witness" at the trial of the action, i.e. something in the future.

14. The statement describes Ms Chan as "a potential witness". At the present hearing, Mr Ng likewise described Ms Chan as a potential witness: he was non-committal as to the likelihood of calling Ms Chan to give evidence at trial. The problem with that approach is that as Mr Scott has submitted, the concept of "potential witness" is an imprecise concept. It is a generic term with no definite legal meaning. It covers witnesses who are about to testify in court at one end of the spectrum to witnesses who merely have knowledge of some matters forming the subject matter of an existing or intended legal action at the other end.

15. There is indeed authority to the effect that interfering with "a potential witness - a person who, unless prevented, is very likely to give evidence" may amount to contempt: Re B (JA) (an infant), supra, at p. 1123A; see also Arlidge, Eady and Smith on Contempt (2nd ed.) paras. 11-203 to 11-210, 11-239 to 11-242. Whether interfering with a person who is less "likely" to give evidence at trial than the victim in Re B (JA) (an infant) may amount to contempt is, however, less certain. And as I say, Mr Ng is non-committal as to the likelihood of calling Ms Chan to give evidence at trial, and therefore one is unable to say (and Mr Ng does not suggest) that "potential witness", as used in the present O 52 r 2(2) statement, is used in the same sense that it was used by Cross J in Re B (JA) (an infant).

16. On the other hand, I do not think Mr Ng in his submission goes so far as to suggest that all potential witnesses within the very wide spectrum that the term permits are covered by the contempt in question.

17. In those circumstances, in my judgment, it is incumbent upon the Plaintiff in its statement to specify, with sufficient particularity, the likelihood of Ms Chan giving evidence at trial as witness, so as to bring her within the scope of protection by the law of contempt.

18. In my judgment, it is no answer to say, as Mr Ng seeks to argue, that if the Defendant thinks that the statement does not disclose a reasonable cause of action based on contempt, she may apply to strike out, or raise it during submission at the substantive hearing. The reality is that a "potential" witness may or may not be protected by the law of contempt, depending on the facts, and therefore those facts that the applicant relies on to say that the "potential" witness in question is one protected by law must be clearly set out in the statement. In other words, "potential witness", though used in some authorities and textbooks as a sort of abbreviation or shorthand when discussing the present aspect of the law of contempt, is too imprecise, general or ambiguous a term for use in an O 52 r 2(2) statement. Without the necessary particulars, the Defendant cannot even tell whether the Plaintiff has alleged an arguable case of contempt against her in the statement, so as to decide whether to make an application to strike out on that ground. In other words, one has not even reached the stage of strike-out in the analysis used by Mr Ng.

19. It must follow from the above that Mr Scott is correct in his further complaint that likewise, the statement contains no particulars at all regarding the Defendant's knowledge at the material time that Ms Chan was a "potential" witness (within the protection of the law of contempt) and her knowledge of the underlying facts in support to say that she was such a "potential" witness. In fact, Mr Scott also has much force in his argument that in the statement, there is no allegation of such knowledge at all, let alone particulars of such knowledge. Mr Ng does not dispute that such knowledge is a necessary ingredient of the charge in question, which the Plaintiff needs both to allege (in its statement) and prove.

20. I do not agree with Mr Ng that the words allegedly said by Ms Chan (which are set out in the schedule to the statement) are sufficient to supply the necessary particulars of knowledge (or allegation of knowledge), given the obvious ambiguities in the words used.

21. For all these reasons, in the exercise of my discretion, I make an order setting aside the leave that I granted to the Plaintiff to apply for an order of committal against the Defendant and dismissing the Notice of Motion against the Defendant, in respect of the ground set out in paragraph 4(a) of the O 52 r 2(2) statement and repeated in paragraph (a) of the schedule to the Notice of Motion.

22. As regards directions for the further conduct of these proceedings, having heard counsel, I would give the following directions:

(1) Cheng Wai Kee, Siu See Kong and Chan Wai Ling do attend the substantive hearing of the Notice of Motion dated 14 July 2003 issued in respect of the Defendant for cross-examination on their affirmations respectively filed on 7 July 2003 in support of the said Notice of Motion (namely, the 4th affirmation of Cheng Wai Kee, the 14th affirmation of Siu See Kong and the 3rd affirmation of Chan Wai Ling);

(2) Cheng Wai Kee and Siu See Kong do attend the substantive hearing of the Notice of Motion dated 14 July 2003 issued in respect of Lee Yat Kwong for cross-examination on their affirmations respectively filed on 7 July 2003 in support of the said Notice of Motion (namely, the 4th affirmation of Cheng Wai Kee and the 14th affirmation of Siu See Kong);

(3) leave to the Defendant and to Lee Yat Kwong to file and serve evidence in opposition within 21 days after this judgment is handed down;

(4) leave to the Plaintiff to cross-examine the deponents of the affidavit(s) or affirmation(s) filed by the Defendant and Lee Yat Kwong respectively in opposition pursuant to the previous sub-paragraph, if and only if the same should be used by the Defendant, or as the case may be, Lee Yat Kwong, at the substantive hearing of the respective Notices of Motion;

(5) leave to the Plaintiff to file and serve evidence in reply within 21 days after service of the Defendant and/or Lee Yat Kwong's evidence in opposition;

(6) the deponents of the affidavit(s)/affirmation(s) filed pursuant to the preceding sub-paragraph do attend the substantive hearing of the respective Notices of Motion for cross-examination on their said affidavit(s)/affirmation(s);

(7) hearing of the respective Notices of Motion be adjourned to an early date to be fixed in consultation with counsel's diaries, estimated time: three days, before any judge.

23. On the question of the Plaintiff's filing evidence in reply, see Re B (a minor) (Contempt of court; affidavit evidence) [1996] 1 WLR 627, 638C-E; Arlidge, at para. 15-36. The same also discuss what use, if any, an applicant may make of the evidence filed by the alleged contemnor, and the question of cross-examination of the contemnor on his affidavit evidence.

24. Given the quasi-criminal nature of the present contempt proceedings, I agree with the parties that there should be an early hearing. For that reason, I do not think I should reserve the case to myself. Moreover, although there are some material in Chinese, given the Defendant's and Mr Lee's choice of counsel, the substantive hearing (like the present hearing) will be conducted wholly in English in any event. Coupled with the desirability of having an early hearing, I am not minded to direct that the substantive hearing be held before a bilingual judge. In my judgment, any additional costs in obtaining agreed or certified English translations will be out-weighed by the advantages of having an early hearing, which in my judgment, is the overriding consideration in the present context.

25. As regards costs, I make the following costs order nisi, which shall become absolute unless any party applies to vary the same within 14 days after this judgment is handed down:

(1) costs of the strike-out application be paid by the Plaintiff to the Defendant and Lee Yat Kwong forthwith, to be taxed if not agreed;

(2) costs of the setting aside and dismissal application be paid by the Plaintiff to the Defendant forthwith, to be taxed if not agreed;

(3) save as aforesaid, costs of the summons dated 25 August 2003 and costs of the hearing of the two Notices of Motion on 28 August 2003 be costs in the cause of the committal proceedings;

(4) the above three sets of costs be apportioned, for the purpose of taxation, in the ratio of 35% : 55% : 10% respectively.

26. Lastly, I would like to thank counsel on both sides for their helpful assistance.