VANESSA KWAI FUN LUK AND OTHERS v. KWAI KUN CHOI

HCA4261/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4261 OF 2003

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REASONS FOR JUDGMENT

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1.  This action was set down for trial on 15 to 17 January 2007.  Shortly before the pre-trial review scheduled for 13 December 2006, the plaintiffs applied by summons dated 8 December 2006 to strike out the Defence and Counterclaim and for judgment be entered as claimed.  After hearing the parties, I made an order in terms of the summons and gave oral reasons for the decision.  I now reduce my reasons into writing.

The background leading to the plaintiffs’ application

2.  The background and the nature of the dispute between the parties had been summarized in a judgment given by Deputy Judge Muttrie on 5 January 2006, which I shall adopt and set out below:

“2.	Hugo Choi and Vanessa Kwai Fun Luk, the 1st plaintiff, were husband and wife, and they had two children, Natalie and Adrian.  Hugo and Vanessa were divorced in 2002 in Singapore.
3.	Hugo was a beneficiary under his father’s Will, which provided for him to have five thirtieths of the estate, but held on trust for 10 years after the father’s death.  The father died on 24 August 1993, and accordingly the vesting day, on which Hugo’s interest under the Will vested in him, was 24 August 2003.
4.	Hugo had, on 17 September 1998, executed a Deed of Assignment, assigning part of his share in the estate to his wife and children.  This action, which commenced on 19 November 2003, arose because Hugo and Vanessa produced different versions of this Deed.  Vanessa, in her personal capacity and as trustee for Adrian, who is still a minor, and Natalie claim for declarations that Vanessa’s Deed is genuine and that Hugo’s Deed is a forgery and so null and void.  Hugo counterclaims for declarations that his Deed is genuine, and Natalie’s is a forgery and so null and void.”

3.  The gist of the defendant’s Defence, and also his Counterclaim, is that the defendant’s copy of the Deed is the true copy of the Deed of Assignment and the copy of the Deed produced and relied upon by the plaintiffs is not.

4.  Subsequent to the commencement of these proceedings, the defendant was charged with two counts in District Court case no. DCCC1088/2004.  The first count was for using a copy of false instrument, contrary to section 74 of the Crimes Ordinance, cap.200.  He was convicted of both charges on 6 May 2005 and sentenced to 12 months imprisonment for the first count.  He appealed against the convictions in CACC263/2005.  On 20 March 2006, the Court of Appeal dismissed the appeal.

5.  The instrument that forms the subject matter of the first charge and conviction was the copy of the Deed the defendant produced. 

6.  Subsequent to the criminal proceedings, the plaintiffs amended the Statement of Claim to give notice of intention to adduce evidence of, and to rely on, the defendant’s conviction of the first count and the facts upon which the conviction was entered for the purpose of establishing that the plaintiffs’ copy is genuine and the defendant’s copy is forged.

7.  On 26 April 2006, the defendant filed his witness statement in this action.  He only served it on the plaintiff’s solicitors in June 2006.  In the witness statement, the defendant referred to and adopted three affidavits he made in support of his application in March 2005 for a stay of this action on the ground that the parties had reached a binding, full and final settlement.  The defendant’s application was dismissed by Master J Wong and the appeal also dismissed by Deputy Judge Muttrie on 5 January 2006.  The defendant had appealed to the Court of Appeal in February 2006, but has since not applied to set down the appeal for hearing.  In the Judgment as mentioned above, Deputy Judge Muttrie found that there was no binding settlement agreement between the parties. 

8.  It is against this background that the plaintiffs applied to strike out the Defence and Counterclaim and for judgment be entered as claimed.

Reasons for Judgment

9.  Clearly, the dispute between the parties boils down to one issue, namely, which of the two copies of the Deed of Assignment is the true and genuine copy.

10.  At the hearing of the plaintiff’s application, the defendant indicated that:

(1)    Consequent upon the criminal prosecution and the convictions, he would no longer pursue the point that the copy he produced is a true copy of the Deed of Assignment. 

(2)    His sole defence is to put the plaintiffs to strict proof of their entitlements to the declaration sought, and in turn, the fact that the copy they produced is the true copy.

(3)    At the trial of this action, he would not be giving evidence.  The witness statement he had filed is thus of no significance.   

11.  Under section 62(1) and (2) of Evidence Ordinance, cap.8, the plaintiffs are at liberty to adduce evidence at trial of the defendant’s conviction on using a copy of a false instrument and the facts upon which the conviction was based.   For this purpose, the plaintiffs had obtained the Reasons for Verdict given by the trial judge in the District Court.  

12.  In convicting the defendant of the offence of using a copy of a false instrument, the trial judge found as a fact that, inter alia:

(1)    The copy produced by the 1^st plaintiff to the trustee, which is the copy relied upon by the plaintiffs in this action, is a true copy of the original Deed of Assignment: paragraphs 66 and 70 of the Reasons for Verdict; and

(2)    The defendant had produced to the trustee a copy of a false and forged deed, which is the same copy he seeks to rely in this action: paragraphs 95 and 96 of the Reasons for Verdict.

13.  It was held in Stupple v Royal Insurance Co Ltd [1971] 1 QB 50 that the effect of section 11 (2)(a) of Civil Evidence Act 1968, which is the equivalent of section 62(2)(a) of Evidence Ordinance, has the effect of shifting the legal burden of proof to the defendant. 

14.  In the context of this action, this means the defendant has to prove on a balance of probabilities that the copy produced by the plaintiffs is not a true copy of the Deed of Assignment and that his copy is a true copy.  If he fails to overthrow the conviction, the conviction will prove the case and he losses by the very force of the conviction: see the analysis in Lord Denning’s judgment at 72C-73C.   

15.  Since the defendant had not filed any witness statements, other than his own, and given his clear indication that he would not be testifying at the trial, there will be no other direct evidence to counter or contradict the conviction. Further, the facts found by the trial judge and upon which the defendant was convicted is admissible as evidence in this action.  There will also be no evidence to counter or contradict the findings, including the fact that the plaintiffs’ copy is a true copy of the Deed of Assignment.

16.  This being the case, the plaintiff’s claim is made out and well supported by the conviction and the findings in the criminal proceedings.  It is plain and obvious that the defendant’s defence and counterclaim stand must fail.

17.  In addition, even though the striking out application was made close to the trial, it will be a proper case for the court to exercise its power and to accede to the application because the position at trial will be the same as it is now.  It will be a waste of time, costs and resources to allow the action to proceed to trial.

Conclusion

18.  For these reasons, I make an order that the Defence and Counterclaim be struck out.  I also enter judgment for the plaintiffs for the two declarations sought. 

19.  Costs follow event. There is further an order that the defendant pays the plaintiffs the costs of this action, to be taxed if not agreed.