REFCO INC. v. TROIKA INVESTMENT LTD AND OTHERS

CL-96 of 1987

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Headnote

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Practice and procedure - Anton Piller Order - Discharge - Basis for such an Order - control of Mareva Injunction - disclosure of contempts of court.

No. CL-96 of 1987

IN THE SUPREME COURT OF HONG KONG

COMMERCIAL LIST

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JUDGMENT

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1. The Plaintiffs who are a U.S.A. company are said to be the world's largest commodity brokers. The 1st Defendant is a Hong Kong futures Broker and the 2nd Defendant at one time held 99,999 of the 100,000 issued shares of the 1st Defendant. The stock exchange crash which echoed around the world in October 1987 has led to this action by the Plaintiff claiming nearly US$7.2 million against the 1st Defendant as money due on a futures trading account alternatively damages for breach of contract. I gave leave at a later date to join the 2nd Defendant who are said to be liable by virtue of a clearing agreement in 1983. Since the institution of proceedings I have dealt with a number of interlocutory applications and have been made familiar with all aspects of this case. One of my earlier decisions concerning the formulation of a claim against the 2nd Defendant has been appealed and the Court of Appeal has just concluded hearing argument. Nothing in that appeal affects my consideration in this matter.

2. It had been clear to me for some time that the relationship between the solicitors for the Plaintiffs and the 1st Defendant had deteriorated and serious allegations have now been levelled against Mr. Peter Sit, the solicitor for the 1st Defendant. This particular summons I have been hearing for three days with four Queens Counsel and four Junior Counsel engaged. I have been sitting long hours in order to accommodate counsel and have had to consider over a thousand pages of affidavits and exhibits, more than thirty authorities and detailed and powerful submissions by very experienced counsel.

3. The implications of any ruling I make may be of serious concern to the parties. I therefore give this judgment in open court. Further, matters which may affect public confidence in our legal system should be dealt with openly and not behind close doors.

4. On May the 25th I granted an Anton Piller Order in favour of the Plaintiffs against the 1st Defendant. I varied this by telephone during the course of the evening and the solicitors attended my home at about 7.30 p.m. Both the 1st and 2nd Defendants now seek to discharge that order.

5. I do not intend to set out all the principles culled over the years as to the grant and discharge of this type of specialised injunction. These are well established and found in a number of well-known authorities. Many of them cited on this topic depend upon the particular facts of their case. With regard to the grant I have had regard principally to

(1)    Anton Piller KE v Manufacturing Processes Ltd and the classic judgmnet of Lord Denning M.R.

(2)    Bank Mellat v Nikpour

(3)    Columbia Pictures v Robinson

(4)    R v Kensington Tax Commissioner

(5)    Yousif v Salavia

(6)    EMI v Pandit

(7)    Bekhor v Bilton

With regard to the discharge I have had regard principally to

(8)    Thermax v Schott Industrial Gloss Ltd

(9)    Booker McConnell Plc v Plascow

(10)    Citibank v Express Slip Management Services Ltd

(11)   Wardle Fabrics v G. Hyristes Ltd

(12)    Brinks Mat Ltd v Elcombe

(13)    Dormeuil Freres SA v Nicolian International

6. On November the 20th 1987 I granted ex-paste to the plaintiff a Mareva injunction over the assets of the 1st Defendant, but they were permitted to utilize $200,000 for legal costs. On November the 26th I extended by consent the provision for costs to $400,000 and the 1st Defendant was given until December the 11th to file an affidavit verifying its assets. On December the 10th Peter Wong, the company secretary of the 1st Defendant, filed an affidavit in support of a stay of proceedings on the ground that U.S.A. was the more appropriate forum. This affidavit is important, but I do not set it out in full. In paragraph 7 Mr. Wong stated that the Defendant is able to utilize a maximum of $400,000 for legal advice in litigation in respect of the two said proceedings (referring to the proceedings both in the United States and in Hong Kong). He said that the Defendant had been advised by legal advisers that the Plaintiff is retaining the services of junior counsel and Queen's counsel, and the Defendant is advised to retain the services of Mr. Charles Ching and Mr. Warren Chan, Hong Kong counsel practising in the Hong Kong Courts. He later says that the Defendant has been advised the sum of $400,000 will soon be consumed, and a new application will have to be made to the court for additional sums to be released from the Defendant's bank account in order to finance the legal proceedings. It is clear from the affidavit that Mr. Wong was addressing his mind to the state of proceedings in both America and Hong Kong.

7. This affirmation was filed by the 1st Defendant's solicitors. On the next day, December the 11th, Mr. Ma, the General Manager of 1st Defendant, made an affirmation with regard to the lot Defendant's assets. On January the 28th, Mr. Carey, who is the solicitor having the conduct of this litigation on behalf of the Plaintiffs, swore an affidavit that the lot Defendant must have exceeded the provision of $400,000 for legal costs. On March the 9th, Mr. Ma, in an affidavit, did not deal with this matter. On April the 8th, the Plaintiff issued a summons seeking to interrogate the Defendants, inter alia, to disclose the sum expended by them on legal costs and how the same had been funded. This summons was consented to, and I made an order on April the 12th. On May the 2nd, Mr. Ma swore that $1.5 million and US$75,000 had been expended on the litigation, and that insofar as the 1.5 million was concerned, it was paid by the 1st defendant to Sit, Fung, Kwan & Shum, the 1st Defendant's solicitors on the 22nd of October as "agreed fees" i.e. one month: before the writ was issued by the Plaintiff against the 1st Defendant. This was the first occasion that the 1st Defendant or his solicitor had disclosed this payment and, of course, it is the first time the court had been told about it.

8. It was against this background of facts that I heard the application for the ex-parte Anton Pilfer. As I said, I was familiar with this case, and at the hearing I was provided with all the affidavits and exhibits which had already been sworn.

9. Mr. Ching now seeks to discharge this order on basically four grounds:

10. First, he says, there was no real basis for such an order, and that includes a point on misrepresentation.

11. Secondly, he says there was non-disclosure of material facts.

12. Thirdly, that there was improper oral extensions.

13. Fourthly there was oppressive execution.

14. As far as the last matter is concerned, oppressive execution, this would involve a detailed examination of a factual conflict which cannot be dealt with on affidavits. Mr. Ching accepts that Sections El, 2 and 3 in his written skeleton argument on this topic:

"by themselves could not affect my decision. "

15. Lord Irvine, who appears for the 1st Defendant has not dealt with these matters and I have ruled that the enforcement of any undertaking as to damages should be left to the trial judge. Therefore, I do not deal at all with the issues between the parties in respect of what is said to be oppressive execution.

16. I turn then to the first ground that Mr. Ching puts forward.

17. The general principle is that this order is used to preserve documents where there is a real likelihood or legitimate fear that they will be tampered with or destroyed to the prejudice of the Plaintiffs. The judgments in the Anton Piller ⁽¹⁾ case demonstrate how special the Order is. It is not a search warrant nor should it be used to obtain evidence of contempt. That said, it is important to recognize that the utilization of this order, in my judgment, is predicated by the particular circumstances put before the court. Further, this order was on any view unusual in that the litigation had started and was well on its way. This was not therefore a standard type of application in order to preserve evidence which would be the subject matter of the particular action. I had already granted a Mareva injunction over the assets of the company and I had permitted $400,000 to be removed from those assets in order to fund the litigation. But for that permission, the $400,000 would be covered by the Mareva and would be preserved pending the outcome of this litigation. In my judgment, an Anton Piller can be utilized to ensure that the Mareva injunction is effective over the assets it ought to cover, that is assets which are or should be the subject of the Mareva injunction. If contempts of court are incidentally disclosed as a result of the order, this in no way, in my judgment, vitiates the grant of the order. Further, in conformity with the normal principles of equity, a defendant cannot rely on his own breaches in order to mount an attack on the grant of such an order.

18. What then has the factual background I sketched earlier disclosed? Lord Irvine makes a sustained and detailed challenge to the integrity of Mr. Peter Sit and his clients. He accuses them of a conspiracy of deception. He submits that the solicitor has misled the court and his own counsel, that his conduct has been such as to make the Plaintiff unable to accept on trust anything he says about costs and that the concealment points strongly to collusion between the 1st Defendant and their solicitors. These are strong and serious allegations to make. Mr. Ching says that this is not a witch hunt and that the attack on Mr. Peter Sit is really irrelevant to the instant matters I have before me. I have naturally been deeply concerned at having to adjudicate on matters deposed on affidavit and not by oral evidence, involving a professional man who is an officer of the court and also at an interlocutory stage in the course of the proceedings. Nevertheless, this is my unfortunate task. It is the 1st Defendant who seeks to set aside this order, and I must not shrink from expressing my opinion if there is evidence before me which clearly supports that opinion.

19. I turn first to the payment of 1.5 million which was paid by the 1st Defendant to Mr. Sit.

20. I have read and re-read Mr. Sit's main affidavit which goes to some 39 pages together with a number of exhibits, and it makes illuminating reading. He swears to a number of meetings which took place between himself and a person who figures prominently in this case, a Mr. Simon Lo; Mr. Lo being the Managing Director and major shareholder of the 1st Defendant. Mr. Simon Lo is well-known to Mr. Peter Sit and they had a number of meetings together shortly after the crash of the world stock markets. Present also at some of these meetings was Mr. Sam Yung Ma who was the same Mr. Ma who swore the affidavit to which I have earlier referred. Mr. Sit says that he was told that the Plaintiffs, Refco, were making a claim against the 1st Defendant for unpaid margin costs of approximately US$13 million, that the transactions had taken place on the Chicago exchange and would be governed by the laws of the States of Illinois and that the Plaintiff would probably take action against the 1st Defendant in Chicago. However, the Plaintiff could well take action against the 1st Defendant in Hong Kong as it was a Hong Kong company, and he says this at paragraph 8(5):

"In the event that the Plaintiff should take proceedings against the 1st Defendant in Hong Kong, it was almost inevitable that there would be an application for a Mareva injunction in this jurisdiction. "

So it was clear from the very outset of the discussions which took place between Mr. Sit and Mr. Lo and/or other officers of the company that there was a real probability of proceedings being initiated in Hong Kong and those proceedings would include an application for a Mareva injunction.

I find that sentence may throw some light upon what subsequently transpired. He also said:

"I Anew that if a Mareva injunction was granted, the 1st Defendant's assets would be frozen. In the event that such an injunction was ordered, the 1st Defendant-would have to seek the consent of the Plaintiff or the leave of the Court before any sums were expended on litigation which, at that time, I thought would mainly be in Hong Kong. "

21. Mr. Sit deposes that he explained the position to Mr. Lo about his own firm's costs including disbursement for counsel's fees, and I point out, as it must have been abundantly clear to Mr. Sit, that the counsel he would instruct would indeed be Hong Kong counsel for the purpose of Hong Kong litigation, and he says:

"I told him that a total sum of 1.5 million would probably be enough for the Hong Kong litigation which I thought was inevitable....... in these circumstances I was thinking only in terms of the Hong Kong proceedings, until a stay could be achieved..."

 

"I suggested to Mr. Simon Lo the sum of 1.5 million as an agreed fee for the litigation is Hong Kong and Mr. Simon Lo agreed. "

22. On the 22nd of October, 1987 a cheque was drawn, but I do not know who was the signatory. It was drawn apparently on the 1st Defendant's account and it was taken by Mr. Sit and paid into his client's account, it being receipted as money paid on account. Mr. Lo, referred to in this so-called agreement as to costs, has not sworn any affidavit in these proceedings. He is apparently the major shareholder of the 1st Defendant. He was also present on the premises at the time the Anton Piller order was served. I find it remarkable that the court has not had placed before it any affidavit by that gentleman. I have not been told that he is unavailable and presumably he is in Hong Kong, able to swear an affidavit should he so wish.

23. Mr. Sit then deposes as the attitude of his firm with regard to the 1.5 million and he says that if his fees had come to more than 1.5 million he would have expected the 1st Defendant to pay them all. If they were less than 1.5 million, he would have paid the money back. It is clear from this affidavit that he is closely connected with Mr. Lo. He says that he has known him for many years, and he says this in paragraph 11:

"The 1st Defendant was a valued client as were its directors. I am practising in Hong Kong where goodwill and face are very important. "

If that sentence means that the normal standard of professional behaviour is lower because of a particular relationship with a client, then I find it regrettable. What then in reality was this 'agreement' with regard to fees?

24. In my judgment, Mr. Sit's firm was acting as if a bank holding the 1st Defendant's money for possible costs to be incurred in the future. Lord Irvine has not specifically taken the point as to whether the 1.5 million was still an asset of the Defendant or not, albeit the receipt had originally marked on it 'on account' (later struck out by Mr. Sit). I therefore do not have to decide it, but in my judgment the starting point of this whole unfortunate chapter of events is the basis of receipt of the 1.5 million. Lord Irvine described the assertion that it was for "agreed fees" as a sham, and, in my judgment, that is a justifiable conclusion. Mr. Sit knew therefore that he had enabled the 1.5 million to escape the Mareva for his costs. How did it occur therefore that he hid this from his own counsel, from the Plaintiff and the court? Mr. Wong's affidavit was filed by Mr. Sit and was most probably drafted by him. I have had handed in to me this morning yet another affidavit by Mr. Peter Sit and Mr. Wong where it is clear now that Mr. Wong accepts that what he set out in that affidavit was based upon information provided by Mr. Sit and, indeed, in reality, it was Mr. Sit's own affidavit, albeit made under the guise of being sworn by another gentleman. That, I find, deeply regrettable that solicitors caused to be sworn an affidavit by someone who in reality knows nothing about the situation. In my judgment, that affidavit was not only misleading, it appears to be a deliberately conceived method of channelling out of this company another $400,000. As I said, that is now accepted by Mr. Sit as his affidavit. In my judgment, therefore, what appears to have happened is that $400,000 has been taken outside the ambit of the Mareva.

25. The probabilities on the evidence before me are that Mr. Sit and Mr. Wong agreed to mislead the court and in fact succeeded in so doing. Alternatively, Mr. Sit deliberately withheld information from Mr. Wong, and he himself caused this false affidavit to be sworn. In view of the affidavit just read to me before I gave judgment, the probabilities now on the evidence are that it was Mr. Sit who deliberately withheld information from Mr. Wong, and this has led to a false affidavit being sworn to the court.

26. It was only Mr. Carey's persistence in trying to discover what had happened that has revealed the sad story. I shall revert to this aspect of the case at the end of my judgment.

27. I agree that this solicitor had deprived himself of the right to be trusted by the Plaintiffs on costs. In my judgment, with the background of facts as I have described them, there was a legitimate fear that any documents relating to the so-called agreement were at real risk of destruction, and I underline so-called agreement because in my judgment it is seriously open to doubt whether there was in reality any agreement as to costs.

28. I can see no reason why the Plaintiff should warn the Defendant or their solicitor of this potential application for an Anton Piller, or make further inquiries from him with regard to this aspect of the case. This was an unusual application before me, but the circumstances surrounding it were exceptional. Much discussion has occurred in court as to whether or not this so-called agreement was in writing. The Plaintiff's solicitors may have been under an innocent misapprehension that legally it had to be a written agreement.

29. Section 58 of the Ordinance empowers solicitors in contentious business to have an agreement in writing. This was a large sum of money which, at the ex-parte stage, I was persuaded probably had been deliberately concealed. Why should the agreement not be in writing? In my judgment, it is a reasonable assumption that when the General Manager, Mr. Ma used the words "agreed costs and disbursements", this meant costs and disbursements the subject matter of an agreement which had been entered into between the solicitor and the 1st Defendant, as I said, one month before the writ was issued and which, in all probability, would be evidenced in writing. I confess I still consider it strange that if there was a genuine agreement as to costs and disbursements, it would not have been reduced to writing. Although other documents might have been recovered from other sources, in my judgment, all the documents which were sought in the Anton Pillar were reasonably so sought. On the totality of the evidence that was placed before the court, this Anton Piller was fully justified.

30. The second point Mr. Ching makes is material non-disclosure and he puts this in two ways. First, he says, the address on the order i.e. the 32nd floor, New World Tower, 16-28 Queen's Road Central, was also the address of the 2nd Defendant, Troika Investment Limited. I was well aware of that. The writ so stated, and I was well aware in the course of the hearing on the many interlocutory applications that indeed the 1st and 2nd Defendants had the same address.

31. Further, the 2nd Defendant, are in some way, which I find highly suspicious, intertwined with the 1st Defendant. Mr. Wong is the Company' Secretary of the 1st Defendant who was persuaded to or agreed to swear the misleading affirmation which I have referred to. He now swears an affidavit on behalf of the 2nd Defendant with regard to the discharge of this Anton Filler order. Mr. Simon Lo, who keeps silent, is the Managing Director and major shareholder of the 1st Defendant who made the alleged agreement with Mr. Sit. He apparently carries on business on that floor. Although I am told the 1st Defendant is not trading, there apparently are other companies with similar sounding name as Troika Investment Limited. Mr. Lo was also making payments totalling some, I think, US$75,000 (which is disclosed in Mr. Ma's affidavit) to America for the costs of the litigation of the 1st Defendant over some months. The affidavit of Mr. Ma says, in a rather strange note, 8(a):

"On about the 23rd November, 1987, Mr. Simon Lo paid US$25,000 for the US litigation which sum Simon Lo understood and agreed would not be refunded to him by the 1st Defendant. "

This happened on three occasions. I have not heard from Mr. Lo, but he was apparently paying out of his own pocket some US$75,000, and that money was going to America.

32. Furthermore, some money was provided through Troika Investment Limited for the costs of the American litigation. As the courts in the past have lifted what is described as the corporate veil to discover what is really happening in a net work of companies, so I can make a fair judgment at the close inter-connection which I find exists between the 1st and 2nd Defendants. Insofar as this complaint is concerned, I reject it.

33. The second ground is that two letters were not disclosed. These are marked "P.S. 10 and 11" (to Mr. Sit's firm from the Plaintiff's solicitors and the reply concerning the 1.5 million) and Mr. Ching therefore complains that there has been material non-disclosure such as to justify me on that ground alone in discharging the order.

34. The reality of this matter is that in the conduct of this litigation, the preparation and swearing of affidavits, all has been done by Mr. Sit or under his supervision. I am now reinforced in that view by the recent affidavit which has been placed before the court with regard to Mr. Sit's involvement in Mr. Wong's affirmation. I do not consider these two letters relevant to the weighing question. See the judgment of Mr. Justice Goulding in Wardle Fabrics v G. Hyristes Ltd. ⁽¹¹⁾

35. Even I am wrong, this is not the case of a court being misled or misinformed. I accept that it is immaterial whether the non-disclosure is deliberate or accidental, but there should be an element of misinformation present in the material which was disclosed, when compared with the material not disclosed. That appears to be the basis of the judgment in the R v Kensington Tax Commissioner ⁽⁴⁾. Even if I am wrong about that aspect and these documents were material to the relevant weighing question and did fall within the ambit of the category of documents which should be disclosed, in my judgment, I still have a discretion as to whether or not to discharge the order. I do not understand that the Hong Kong Court of Appeal in the Citibank ⁽¹⁰⁾ case have said otherwise. The powerful judgments in the BrinksMat ^(12a) case in the Court of Appeal in England were not cited to the Hong Kong Court of Appeal in the Citibank case, but they have been approved by Vice-Chancellor Browne-Wilkinson who himself decided the Thermax ⁽⁸⁾ case cited with approval by Mr. Justice Fuad in the Citibank case; and Brinks Mat has been cited with approval in a recent decision of Vice-Chancellor Browne-Wilkinson in Dormeuil Freres SA v Nicolian International Textiles Ltd. ⁽¹³⁾

36. In my judgment, therefore, I am entitled to examine the documents which have not been disclosed. They really add nothing at all to the matter. Mr. Sit, as I said, had drafted the affidavit. Mr. Sit was the author of everything which took place, and, in my judgment, it was wholly immaterial that they were not so disclosed. Even if, as I have said before, they were of that category of documents which can be classified as material, and therefore there was non-disclosure, then in my judgment, the 'justice of the case' to use the words used by Vice-Chancellor Browne-Wilkinson in the Dormeuil Freres ⁽¹³⁾ case and the judgment of Lord Justice Slade in the Brinks Mat ^(12a) case, demands that I should not discharge the order on that ground.

37. The third matter is that there were, as it is said, improper oral extensions to the order I made.

38. After I granted the order, I was telephoned several times at my home by the solicitors for the Plaintiff and also for the 1st Defendant, and I invited them to my home in the evening so that any matters could be discussed between solicitors in front of me. I did extend the order on the telephone as I considered it necessary so to do, and it was unnecessary, in my judgment, for a formal hearing to take place.

39. It is not challenged by Mr. Ching that a Judge can do this by telephone, but he said that it should be put into writing and the order re-served with the penal notice, so that the recipient of the order knows that if he disobeys the order, he is liable to contempt proceedings.

40. It is important to remember that I am not dealing with a motion to commit, where Mr. Ching's point may have some validity, but with an application to discharge my order. I do not consider that the Plaintiff has done anything improper at all. Whatever was done by them was sanctioned by me. I was satisfied that I should so extend the order on the telephone. Looking at the matter in hindsight, the events which occurred, which are not the subject matter of any actual decision by me today, demonstrates such an extension was necessary. I reject this ground.

41. Finally, insofar as Mr. Ching's submissions are concerned, the order I granted contained no undertaking as to damages.

42. Before hearing the application, it is my common practice to read all the papers before going into court. Nevertheless Mr. Kaplan who appeared at the ex-parte stage, an experienced counsel, took some time in taking me through the relevant considerations and relevant evidential matters for my attention. I raisedthe question as to whether or not the undertaking in damages should be fortified. The Plaintiff company is a foreign company and again it is my normal practice in this type of injunction to require fortification from a foreign company. Mr. Kaplan referred me to the injunction I had already granted, the Mareva injunction, the status of the Plaintiff's and the absence of any fortification in that order and indeed the absence of any application for fortification since the making of the order. The Anton Piller order I made did not contain an undertaking as to damages. This, in my judgment, was a pure oversight. I have before me a summons to correct the order I made by including such an undertaking in wide terms. I do not think there is any opposition to the summons, but I will not make a decision as yet on it before hearing any argument. It is quite clear in my judgment the order granted did not reflect the intention of the Plaintiff and, indeed, the intention of the court in ensuring that the undertaking as to damages was included within the order, and that should be readily corrected.

43. As far as Mr. Ching's summons is concerned, I dismiss it.

44. Mr. Huggins appears for the 2nd Defendant, Troika Investment Limited, and he submits an affidavit by Mr. Wong, the Company Secretary of the 1st Defendant. This is the same Mr. Wong who swore the grossly misleading affidavit on behalf of the 1st Defendant in December, 1987. Much of this current affidavit I find unhelpful, yet it indicates the proximity of relationship between the 1st and 2nd Defendants. It is submitted that the order I granted should have been drafted in such a way as to protect the rights of the 2nd Defendant, as it was known that they were situate also on the 32nd floor, and what was happening was that the Plaintiffs would have used this order as the basis, as it is said, of an unwarranted search of the 2nd Defendant's documents. He also supports Mr. Ching's general proposition that there was no evidence of a written agreement, but I have dealt with that point.

45. There is nothing, in my judgment, in the complaints of the 2nd Defendant. I find the general stance taken by Mr. Huggins on behalf of his clients, albeit skilfully put forward, lacks commercial reality. The order I made is clear. I was well aware of the factual background in this case. The 2nd Defendant's complaints, in the circumstances of this case and disregarding any opinion on the conduct of Mr. Peter Sit which, of course, does not affect the 2nd Defendants, I find are unjustified. Lord Irvine describes the complaints as unreal and theoretical. I agree. This summons is dismissed.

46. I now turn to the conduct of the 1st Defendant and/or their solicitors. As I said earlier, I find this whole matter disturbing. When a judge is faced with a situation such as the present, then he must come to a decision however distasteful it is. From a public point of view, I must not shirk my responsibility otherwise confidence in the Judiciary would be at risk. In my judgment, it appears that this court has been seriously misled by Mr. Peter Sit. It has permitted some $400,000 to be removed from the ambit of the Mareva injunction for the benefit of the 1st Defendant. Mr. Sit has deliberately withheld any information concerning the payment to him of 1.5 million under what is said to be an agreement as to costs. He has had ample opportunity so to do. He waited until being forced into a position where it had to be brought into the open. I consider that Mr. Peter Sit may be in contempt of court. I have had regard to an affidavit just placed before me that Mr. Wong swore his affidavit under the supervision of Mr. Peter Sit and that in reality he knew nothing about what he was swearing to. That, in itself, may be a contempt of court, but, in my judgment, it is not necessary for me to initiate contempt proceedings against that gentleman. The Plaintiffs may consider that it is right to bring the matter back to the attention of the court but that is for them. I find, however, that Mr. Peter Sit, a solicitor and officer of the court may well be in contempt of court. He has made a belated apology in his affidavit. In the context of the mariner in which it is made, I do not accept it. I direct Mr. Peter Sit attend before me for the purposes of answering this matter and if necessary purging his contempt. He is entitled to separate legal representation and it should be at a time suitable to himself. I have also considered whether I should send the relevant papers to the Law Society for the purpose of the Law Society enquiring into Mr. Sit's professional conduct. In my judgment, I would be fully justified in so doing. However, this is in the middle of litigation, and I consider that I have enough powers to deal adequately with this matter.

47. Having heard further argument as to costs, the 1st Defendant's summons is dismissed with costs on a common fund basis with a Certificate for 3 Counsel. The 2nd Defendant's summons is dismissed with a Certificate for 2 Counsel.

(1)     1976 Ch. 55

(2)     1985 FSR 87

(3)     1986 3WLR 542

(4)     1917 KB 486

(5)     1980 1WLR 1540

(6)     1975 FSR 111

(7)     1981 1QB 423

(8)     1981 FSR 289

(9)     1985 RPC 425

(10)   1987 HKLR 1184

(11)   1984 FSR 263

(12)   June 12th 1987 (unreported)

(12a)   June 12th 1987

(13)   Times May 5th 1988