THE KA WAH BANK LIMITED v. PRODUCT SCOUTING INTERNATIONAL LIMITED AND ANOTHER

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JUDGMENT

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Cons, J.A.:

1. This is an appeal against the decision of Mayo J. who on the 12th April this year refused an application by Mr. Oosterveld for leave to commit for contempt of Court a Mr. Alex Lam, a director of the Ka Wah Bank Limited, a Bank which has been engaged in extensive litigation with Mr. Oosterveld and with a company with which Mr. Oosterveld is obviously closely connected, and to commit a Mr. Edward Wing Yui Cheung, a solicitor of the firm instructed by the Bank in the conduct of those proceedings.

2. The basis of Mr. Oosterveld's application is that both these gentlemen maintained before various courts that a mortgage, the subject of the litigation, had been signed on the 30th June 1981 whereas in fact it had, to their knowledge, been signed many days earlier. However I can see no evidence in the papers that were before Mayo J. - and we have not considered the further papers before us - that Mr. Lam had in any way maintained that proposition to any court. The only suggestion that is made refers to an affirmation filed by a member of the bank staff in which the mortgage was referred to as being dated the 30th June 1981. But there is no evidence that Mr. Alex Lam personally authorized the making of that affirmation, and even then, I may add, the affirmation does not aver that the mortgage was signed on that date.

3. Likewise I can see nothing which indicates that Mr. Cheung was responsible for contempt. The argument, as I understand it, derives from a suggestion that Jones J. found as a fact at one stage of the litigation that the mortgage had been so signed and that Mr. Cheung, neither then nor later, saw fit to draw his attention to the error. But again, there is no evidence in support. Mr. Costerveld now seeks time to find some. In my view it would not be appropriate to grant an adjournment. Although Mr. Oosterveld has appeared in person he has argued his case skilfully and it is obvious that he is sufficiently experienced in law and litigation to know at what stage evidence ought to be produced.

4. For these reasons I would dismiss the appeal.

Fuad, J.A.:

5. I agree. There was not a scrap of evidence before Mayo J. that could have justified him in acceding to Mr. Oosterveld's application. I am sorry to have to say that I regard this entire set of proceedings as outrageous and an abuse of the process of the court; and so have no hesitation in dismissing the appeal.

Kempster, J.A.:

6. I agree that this appeal should be dismissed. Mayo J. had a discretion to exercise on the material put before him. The locus standi of the appellant apart there is nothing in that material, which has not been added-to before this Court, which would entitle us to say that he in any way erred in principle or indeed to find that this was an application which in due course would have any prospect of success. I heard Mr. Oosterveld say in the course of argument that he was not really concerned to commit the two gentlemen in question but, perhaps, to purify the course of justice. That is not his task and an application to commit should not be made for that purpose.