CHUI LAP PAN AND ANOTHER v. CHUNG CHEUK WAI

DCCJ1218/2024

[2025] HKDC 94

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1218 OF 2024

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DECISION

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1.  The plaintiffs took out a Summons on 15 April 2024, asking for summary judgment on their claim (“the Summary Judgment Summons”). In summary, they claimed for the following reliefs:

1.1  A permanent injunction preventing the defendant, whether by himself or otherwise, from harassing, or causing the harassment of the plaintiffs and their family members, and those around them; and

1.2  Damages in the sum of $410,050.00, or alternatively to be assessed.

2.  The plaintiffs further issued 2 other Summonses prior to the hearing before me:

2.1  On 30 December 2024, they issued a Summons for leave to file and serve out of time their Reply and Defence to Counterclaim (“the Time Summons”); and

2.2  On 10 January 2025, they issued a Summons for amending the Writ and the Statement of Claim, together with consequential amendments to the summary judgment sought in the Summons of 15 April 2024 (“the Amendment Summons”).  The Amendment Summons is supported by the respective affirmations of the 1^st and the 2^nd plaintiffs dated 13 January 2025.

3.  After hearing Mr Jonathan Tsang (counsel for the plaintiffs)  and Mr Lai Ho Yeung (counsel for the defendant), I indicated at the hearing that I would grant orders in favour of the plaintiffs for the Time Summons and the Amendment Summons.  I shall set out below the reasons for my decision.

The plaintiffs’ factual case

4.  The plaintiffs are husband and wife.  The 1^st plaintiff[1] knew the defendant[2] since they were roommates when studying overseas.

5.  Some time in December 2023, the defendant started his own business in decoration and renovation through Like Deco Company Limited (“Like Deco”), of which he is the sole shareholder and director.

6.  Around the same time, the plaintiffs planned to refurbish their matrimonial home in Tai Kok Tsui. Setting aside the irrelevant background disputes between the parties for the time being, the plaintiffs retained the defendant to refurbish the floor tiles in their flat, and to build a cabinet-cum-bedframe for the use of their child in one of the bedrooms. 

7.  It is the plaintiffs’ case that the defendant agreed to accept $8,000.00 for refurbishing the floor tiles.  The defendant further quoted $10,000.00 to $20,000.00 for building and installing the cabinet.

8.  After the defendant sent over workers to refurbish the floor tiles, and worked on designing and constructing the cabinets, a dispute as to whether the defendant’s works were up to standard arose.  There is no need to recount all the twist and turns of this dispute. It suffices for me to note that, on the plaintiffs’ case, the defendant requested them to pay $8,000.00 for refurbishing the floor tiles; and they would relieve the defendant from building and installing the cabinet.  But the defendant became angry and blocked the 1^st plaintiff from sending further messages to him on WhatsApp.

9.  The plaintiffs claim that, on 29 January 2024, the 2^nd plaintiff[3] sent a message to the defendant’s girlfriend Ms Li[4] with a hope of pacifying the defendant.  However, the defendant allegedly took this in a wrong way.  On 2 February 2024, the defendant sent messages to a WhatsApp chat group making complaints about the plaintiffs approaching Ms Li.  In one of those messages, the defendant said he was forced by the plaintiffs to demand $12,000.00 as payment for refurbishing the floor tiles, and $16,000.00 for designing the cabinets.  The defendant asked the sums to be paid to his account within 24 hours, or else he would engage a debt collecting company to recover them.  He said he knew the address of the plaintiffs’ flat, and also that of the 1^st plaintiff’s company.  The defendant concluded the message by saying that the plaintiffs had to take the consequence if the sums were not paid[5].

10.  On 3 February 2024, the 2^nd plaintiff transferred $8,000.00 to Ms Li, intending it as payment for the refurbishment of the floor tiles.  When the 2^nd plaintiff messaged Ms Li via Instagram messenger to notify her of the payment, Ms Li replied by asking the 2^nd plaintiff to ignore the defendant, and saying that the defendant was not very rational.

11.  On 4 February 2024, the defendant sent a message in the same WhatsApp chat group before he quitted it.  He said that he had passed the sums to a debt collecting company, and he and Ms Li should no longer be bothered[6].

12.  On 8 February 2024, the 1^st plaintiff and his colleagues at work received 10 letters at the office address.  The letters were identical: each was a 1-page document, printed in large bold fonts, demanding the 1^st plaintiff to repay debts; a packet of dark coloured and rotten fluid was also included in the envelope.  Another threatening letter of a similar content was also mailed to the plaintiffs’ flat.

13.  On 15 February 2024, another 10 letters were sent to the 1^st plaintiff’s company.  Apart from a similar document demanding the 1^st plaintiff to repay debts in bold fonts, each of the letters was accompanied by some “hell money”[7]. Again, another threatening letter of a similar content was also mailed to the plaintiffs’ flat.

14.  Subsequent to the issue of the Writ on 4 March 2024, the 1^st plaintiff received a letter at his office address on 18 April 2024.  This letter again demanded him to repay debts in bold fonts, with his photo printed on it, and some hell money attached. Some of his colleagues also received such letter.  Again, another threatening letter of a similar content was also mailed to the plaintiffs’ flat.

15.  On 6 days between 18 May 2024 and 27 June 2024, the plaintiffs and the 1^st plaintiffs’ colleagues received further letters.  Some of these letters complained that the 1^st plaintiff forged his academic achievement and defrauded investors.  They were stated to have been copied to the Chief Executive’s office, the Hong Kong Monetary Authority, the Securities and Futures Commission, the Ombudsman, and the Independent Commission Against Corruption.  Two other letters accused the 2^nd plaintiff of renting out her public housing unit in Choi Tak Estate, underreporting her income, and defrauding the government. 

16.  Of course, the sender(s)  for all the above threatening letters cannot be identified.  The plaintiffs claim that they must have been sent by the defendant and/or at his instruction, because:

16.1  The plaintiffs did not have any monetary dispute, except with the defendant.

16.2  On 7 February 2024, the 1^st plaintiff got a notification that the defendant viewed his profile page on LinkedIn.  On the next day, the 1^st plaintiff received the 1^st batch of threatening letters. 

16.3  In the Amended Defence and Counterclaim (“the ADCC”)  and his affirmation evidence, the defendant stated that the 1^st plaintiff forged his academic achievement, and the 2^nd defendant obtained her public housing unit by fraud.  These allegations are consistent with the threatening letters.  In particular, the fact that the 2^nd plaintiff previously lived in a public housing unit was little known, except by the closest of her friends, of which the defendant and Ms Li were 2.

The defendant’s factual case

17.  The defendant first filed his home-made Defence and Counterclaim on 13 March 2024.  He made substantial addition to it and made it the ADCC on 26 April 2024.

18.  The defendant claims that the 1^st plaintiff was known to be stingy, and the 2^nd plaintiff a troublemaker.  On the other hand, he has been well provided for since young.  There was no reason for him to go after small sums.

19.  In essence, the defendant denied the threatening letters were sent by him and/or at his instruction.  He counterclaimed $38,032.26 as the outstanding cost that the plaintiffs agreed to pay him for building and cabinets, and $48,531.00 as lost income for the time he spent on the present case.

20.  The defendant points to the following to suggest that he could not have been the culprit and/or the mastermind behind the threatening letters:

20.1  Whilst the plaintiffs made a report to the police regarding the threatening letters, he was never asked by the police to render any assistance.  This shows that the police did not think he was the culprit.

20.2  He only viewed the 1^st plaintiff’s LinkedIn account because he had received a notification that the 1^st plaintiff had browsed his LinkedIn account.

20.3  The 2^nd plaintiff freely talked about renting out her public housing unit at the opening reception of Like Deco.  Apart from the defendant’s mother[8], another friend called Kristy also heard what the 2^nd plaintiff said. The defendant knew that the 2^nd plaintiff and the Kristy were not on good terms.

20.4  From 21 to 27 June 2024, the defendant and Ms Li went on holiday in Thailand.  Therefore, he could not have the threatening letters mailed out within that period of time. 

The defendant’s preliminary objections

21.  In his written submissions, Mr Lai argues that the plaintiffs’ application is fundamentally flawed, because their claim is in essence one on defamation.  As such, as per Order 14 rule 1(2)  of the Rules of the District Court (Cap.336H), summary judgment cannot be granted.

22.  I disagree.  Paragraph 31 of the Statement of Claim clearly avers that the threatening letters, allegedly sent out by the defendant or at his instruction, constituted assault, harassment or intimidation by the defendant.  Paragraph 32 goes on to plead that, as a result of the tort committed by the defendant, a permanent injunction restraining the defendant from committing those tortious acts.

23.  Mr Lai points to various parts of the pleadings and the affirmation evidence, in which the plaintiffs refer to the damage done to their reputation by the threatening letters.  I do not accept that they can support Mr Lai’s submissions that the plaintiffs’ claim is, in pith and substance, one on defamation.  It is common sense that the threats and intimidation often complained of, in a case like the present, have an incidental effect of tarnishing the victim’s reputation.  In my decision, the plaintiffs’ reference to damage to their reputation was raised in such context.  With respect, Mr Lai’s submissions have taken them out of context.

24.  Next, Mr Lai complains that the threatening letters subsequent to the issue of the Writ cannot form the basis for the plaintiffs’ application for summary judgment, because they are not included in the Statement of Claim.

25.  I agree.  But perhaps that is the reason prompting the plaintiffs to issue the Amendment Summons.  The court is empowered to allow amendment relating to matters going to the remedy claimed rather than introducing a new cause of action, even if the amendment introduces facts arising subsequent to the date of the writ: Hong Kong Civil Procedure 2025 at §20/8/2.

26.  I am of the view that the plaintiffs’ amendment ought to be allowed, so that they can rely on the facts subsequent to the issue of the Writ to support their application for summary judgment.  The further matters they seek to introduce by way of the amendment go to support the same cause of action of harassment and/or intimidation. Affirmation evidence has been filed by the plaintiffs setting out those matters, apparently without objection by the defendant.  The defendant is not prejudiced as he had the chance to respond to them. 

27.  Thirdly, Mr Lai complains that Mr Tsang asks this Court to strike out the defendant’s counterclaim without a proper application being extant.

28.  I agree with Mr Lai.  I do not accept that the outcome of the plaintiffs’ summary judgment necessarily dictates the outcome of the defendant’s counterclaim.  As Mr Tsang recognises, the plaintiffs’ claim does not actually depend on the underlying dispute about the renovation of the plaintiffs’ flat.  He does not submit that, if this Court grants a summary judgment on the plaintiffs’ claim, the defendant automatically loses the right to recover anything for the underlying dispute.  Rather, he submits that, based on what the defendant has said in various documents, his counterclaim is apparently bad. 

29.  I do not think this is the proper way to invite the court to strike out the defendant’s counterclaim.  Mr Tsang asks this Court to strike out the counterclaim as per Order 18 rule 19(1)(b)  & (c)  of the Rules of the District Court; but the defendant has not been given due notice to put in evidence to oppose to the striking out.  I do not find it appropriate to consider the merits of the counterclaim at this juncture.

Unconditional leave to defend to be granted

30.  Mr Tsang refers to the Court of Appeal’s judgment in Sir Elly Kadoorie & Sons Limited v Bradley [2024] 4 HKLRD 428 on the elements for establishing the tort of harassment, to which Mr Lai does not dispute.  At §32 of the judgment, the Court of Appeal set out as follows:

“In summary, in the present state of the development of tort of harassment in Hong Kong, in order to make out a cause of action in this tort, the victim of harassment has to show that:

(1)  the harasser, directly or through third parties, has, by a course of sufficiently repetitive, unreasonable and oppressive conduct, caused, and which he ought reasonably to know would case, worry, alarm, emotional distress or annoyance to the victim;

(2)  the conduct complained of must, objectively, amount to harassment (in the ordinary sense of the word);

(3)  the harasser either intends to cause harm or injury to the victim by his harassing conduct, or is reckless as to whether the victim would suffer harm or injury as a result of the harassing conduct; and

(4)  to complete the tort, the victim must have suffered actual damage caused by the harassment.  For this purpose, physical harm, including anxiety, distress, (a fortiori)  recognised psychiatric illness, and financial loss would suffice.”

31.  The parties have no dispute that, in Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197, the court held that, to make out a claim for the tort of intimidation, 3 elements would be required: (i)  an unlawful threat; (ii)  intention to cause harm to the claimant with threat; and (iii)  damage to the claimant.

32.  I agree with Mr Tsang that the crux of the dispute is whether the plaintiffs can show, to the extent requisite of a summary judgment, that the threatening letters were sent by the defendant and/or at his instruction.

33.  The plaintiffs point to the following as direct evidence showing that the defendant instructed debt collectors to send the threatening letters:

33.1  On 8 February 2024, the 2^nd plaintiff called Ms Li.  Ms Li told her that the defendant was by her side, and confirmed that he had engaged debt collectors to send the threatening letters to the plaintiffs.

33.2  Also on the same day, the 2^nd plaintiff sent a photo of one of the threatening letters by WhatsApp to Ms Li, and asked whether it was the defendant himself, or someone instructed by the defendant sticking the threatening letter at the 1^st plaintiff’s office.  Ms Li replied that it was someone else who stuck it. 

34.  Ms Li, by way of her affirmation, corroborated the defendant’s case.  In particular:

34.1  Whilst the 2^nd plaintiff and Ms Li agree that they met in person on 2 February 2024, they had a diametrically different account of what they discussed on that day regarding the defendant’s renovation works.

34.2  Again, whilst there is no dispute that the 2^nd plaintiff called Ms Li on 8 February 2024, they disagree on whether Ms Li told the 2^nd plaintiff that the defendant confirmed he had hired debt collectors to send the threatening letters.

34.3  Ms Li disagrees with the plaintiffs’ claim that, when she responded to the 2^nd plaintiff’s WhatsApp message on 8 February 2024 as to whether it was the defendant himself, or someone instructed by the defendant sticking the threatening letter at the 1^st plaintiff’s office, her answer meant it was someone instructed by the defendant.  Rather, she meant it was someone else altogether[9].

35.  In my decision, it is not possible to discern whether the 2^nd plaintiff or Ms Li was telling the truth by looking at the affirmation evidence alone regarding the above factual dispute.

36.  In light of the affirmation evidence recited above, I do not accept as apposite Mr Tsang’s characterization that the defendant’s denial that he did not send the threatening letters, nor did he instruct anyone to do so, as a bare assertion.  As Mr Tsang agrees, the plaintiffs’ case rests on an inference (albeit they say an irresistible one)  from the whole circumstances.  Thus, the present case is not one in which a defendant puts forward a general denial despite clear evidence proving his prima facie liability.  In my decision, in order to see whether the inference suggested by the plaintiffs ought to be drawn, the court needs to hear and receive evidence to ascertain the circumstances in which an inference is to be drawn.  Such an exercise cannot be done summarily. 

37.  I disagree with Mr Tsang that the current case resembles Ho Frederick Kwok Lung & Anr v Lam Ping [2021] HKDC 1431 (Deputy Judge Charles Wong; 18 November 2021).  The defendant in that case admitted that she owned the mobile phone number making the harassing calls to the plaintiffs; some of the harassing photos could only be owned by the 1^st plaintiff and the defendant therein, as they showed the intimacy they had when they were in an extra-marital relationship.  The proximity between the defendant and the harassing calls and messages in that case is not comparable with that in the present case.

38.  After some anxious consideration, I have come to the view that the defendant’s denial cannot be said to be unbelievable on the existing affirmation evidence.  I pay heed to the proximity in time between the threatening letters and the recent dispute the defendant had with the plaintiffs.  However, given the allegation of repeated unlawful conduct and the circumstances of the case, I am not comfortable with rejecting the defence summarily.  I trust this is abundantly clear in showing that I am not expressing any definitive view on the parties’ respective case; quite to the contrary, it is exactly because my inability to do so at this stage that causes me to conclude that the present case should go to trial.

Conclusion

39.  There shall be an order in terms of §§1-3 & 5 of the Amendment Summons.  The costs of and occasioned by the Amendment Summons be to the defendant, to be taxed if not agreed, with a certificate for counsel.

40.  The defendant do have unconditional leave to defend.  Costs of and occasioned by the Summary Judgment Summons be in the cause, with certificate for counsel.  I disagree with Mr Lai that the defendant ought to have costs, as it is my view that the defendant’s successful opposition to the plaintiffs’ application is largely secured through the filing of affirmation evidence.

41.  Leave be granted to the plaintiffs to file and serve their Reply and Defence to Counterclaim within 14 days from the date of this Decision.  The costs of and occasioned by the Time Summons dated 30 December 2024 be to the defendant, summarily assessed at $700.00.

42.  I am of the view that the present case requires speedy resolution.  I shall hear parties on the consequential directions which may be required to bring the present case forward as quickly as possible.