ATARA SIVAN v. JANNICK JACQUES SIMERAY

HCA1149/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1149 OF 2011

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BETWEEN

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DECISION

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1.  There are 2 applications before me:

(i)   The Defendant’s application to dispute the Court’s jurisdiction over the Plaintiff’s claim (“the Jurisdiction Summons”);

(ii)   The Plaintiff’s application for continuation of the interim injunction against the Defendant (“the Injunction Summons”).

BACKGROUND

2.  The Plaintiff is a professor in a university in Hong Kong (“the University”).  The Defendant and the Plaintiff’s husband (“the Husband”) and a company of which he is a director and shareholder are currently engaged in litigation concerning patent rights over a children’s toy (“the Patent Action”).  The Plaintiff is not involved in that action.

3.  The Plaintiff claims against the Defendant damages for nuisance, harassment and libel; and an injunction restraining the Defendant’s unlawful conduct. Such unlawful conduct comprised:

(i)   Sending of unwarranted emails;

(ii)   Making unwelcomed visits to the Plaintiff’s workplace;

(iii)   Making an unwelcomed visit to the Plaintiff’s home.

4.  Between 19 April and 9 July 2011, the Defendant sent 10 emails to the Plaintiff.  Of those, 8 were also sent to 6 of the Plaintiff’s colleagues and an association in Hong Kong of which the Plaintiff is chairperson.  In those emails, the Defendant accused the Husband of criminal conduct which ruined the Defendant’s life.  There were also attacks on the Husband’s moral life.  The Plaintiff was accused of sharing in the proceeds of her Husband’s alleged crimes and her sons as accomplices.  The emails alleged that the Plaintiff destroyed another family with her unlawful action.  She was associated with the management of the Husband’s business and the Patent Action.  The Defendant said that the Plaintiff had failed to educate the Husband and the children properly and therefore was not qualified to teach her subject.  The Defendant threatened to ask the police to search the university campus, to make the matter a scandal and publicize the matter on international TV and information network if the Husband did not repay him.  The Defendant accused the Plaintiff of putting shame on the University and that the damages caused by her Husband involved her employer and would involve her employer for a long, long time.  An email dated 2 July intimated that the Defendant was demanding the University and the Plaintiff’s insurance company to be responsible for the loss of education of the Defendant’s daughter and moral prejudice to him.  The Defendant stated that he had given a professor’s details to the journalist in order that the University might satisfy the curiosity of the journalist directly.

5.  The Defendant allegedly went to the University and forced himself onto the Plaintiff’s colleagues.

6.  The Defendant also made an unwelcomed and uninvited visit to the Plaintiff’s home to serve the papers in relation to the Patent Action.  He made the domestic helper stand with the Court documents in her hands so that he could take a photo of her.  It scared the domestic helper.

7.  The Defendant’s conduct has led the Plaintiff to feel insecure physically and stressed and she went on medication for a month.  She also felt concerned about her reputation.  She had to continuously apologize to her employer and colleagues for the disturbance.

8.  The Defendant denies forcing himself onto the Plaintiff’s colleagues but does not deny sending the 10 emails.  He claims that he has been cheated by the Husband and such conduct affected his and his family’s lives and business.  He said that at the Plaintiff’s persuasion, the Husband had entered into a partial settlement with the Defendant.  The Plaintiff also accessed the emails the Defendant sent her through the Husband’s company.  The Defendant could not believe that the Plaintiff had no knowledge about the Husband’s business/litigation.  He admits that he was not being nice but claims that what he did was lawful.  He saw injustice and exposed the truth.  He relies on the law of France “that imposes the professors to report any risk in relation with children and students.”  There is no penalty for “alerting the staff of a university about the questionable ethic of a professor in charge of students.”

9.  On 29 July 2011, the Defendant gave an undertaking to Suffiad J: (1) not to directly communicate or approach the Plaintiff and (2) not to communicate with the academic and administrative staff of the University concerning or in relation to the Plaintiff.

10.  The Defendant sent another email to the Plaintiff on 5 August again making allegations of criminal conduct against the Husband.  Worse still, since the month of August, there has been emails from persons claiming to be the Defendant’s wife, daughter and father to the Plaintiff, copied to the same senior and staff members of the University.  They made attacks on the Plaintiff similar to those made by the Defendant.

11.  On 12 August, I imposed an interim injunction (‘the Interim Injunction”) on the Defendant in the following terms:

(i)   That the Defendant, whether by himself or his servants, agents or family members, relatives or friends or any of them be restrained from intimidating or otherwise interfering with the Plaintiff and her direct family members; and communicating with her or any academic and administrative staff of the University in any manner in relation to the Plaintiff;

(ii)   That the Defendant be restrained from procuring, aiding, abetting or inciting any third party to do the things in the preceding sub-paragraph.

12.  The Defendant contests the jurisdiction of this Court to entertain the Plaintiff’s claims.  On the other hand, the Plaintiff asks for continuation of the Interim Injunction.

THE JURISDICTION SUMMONS

The Tests

13.  The 3-stage test for deciding whether Hong Kong is the appropriate forum for trial are well-known:

I.   Is it shown that Hong Kong is not only not the natural and appropriate forum for the trial but that there is another available forum which is clearly or distinctly more appropriate than Hong Kong?

II.   If the answer to (I) is yes, will a trial at the other forum deprive the plaintiff of any legitimate personal or juridical advantages?  The evidential burden lies on the plaintiff.

III.   If the answer to (II) is yes, a court has to balance the advances of (I) against the disadvantages of (II).

See Spiliada Maritime Corporation v. Cansulex Ltd. [1987] AC 460, adopted in the Hong Kong Court of Appeal’s decision of The Adhiguna Harapan [1987] 1 HKLR 904, 907; Pei Zheng Middle School & others v. China Pui Ching Education Foundation Ltd & others, CACV 262 of 2005, para 12.

14.  Where jurisdiction is not founded as of right, as in this case where the Defendant is sued as a person residing in France[1], the burden is on the Plaintiff to show that Hong Kong is the appropriate forum under the Stage (I) test.  See Noble Power Investments Ltd v. Nissei Stomach Tokyo Co. Ltd. [2008] 5 HKLRD 631; Hong Kong Civil Procedure 2011,para 11/1/10.   Mr. Justice Ma CJHC (as he then was) had this to say,

“21. Questions of jurisdiction and forum (that is, the appropriate forum to hear the dispute) are relevant in the exercise of the court’s discretion in this regard and, in most cases, this is perhaps the most important factor to be considered by the court when deciding whether or not to grant leave to serve out of the jurisdiction.

22. In this context, the following points should be emphasized:

(1) Where a plaintiff institutes proceedings in Hong Kong as of right, the defendant may challenge the jurisdiction of the Hong Kong courts to hear the claim in the sense that it may be argued that there is an alternative forum which ought, in preference to Hong Kong, to deal with the claim. This usually arises where the defendant relies on the existence of a foreign jurisdiction clause or on the principle of forum non conveniens. Such a challenge is based on the inherent jurisdiction of the court to stay an action in Hong Kong where the interests of justice so dictate. When the Rules of the High Court are revised consequent on the Civil Justice Reform in Hong Kong, such applications will be made under O.12 r.8. The burden is on the applying party (the defendant) to demonstrate that a stay should be granted.

(2) Where, however, a plaintiff institutes proceedings in Hong Kong not as of right (and the present case is one since leave to serve out of the jurisdiction was required), the approach of the court to questions of forum is quite different. Although this point will often only be raised by a defendant who seeks to set aside any order granting leave to serve out, the burden will not be on the defendant to demonstrate that there is an alternative forum which ought to entertain the action. Rather, the legal burden is all along on the plaintiff to show, in seeking to persuade the court to grant an order to serve out, that Hong Kong is clearly the appropriate forum for the trial of the action. As Lord Goff of Chieveley put it in a well-known passage in Spiliada Maritime Corporation v. Cansulex Ltd. [1987] AC 460, at p.481E:

The effect is, not merely that the burden of proof rests on the plaintiff to persuade the court that England is the appropriate forum for the trial of the action, but that he has to show that this is clearly so. In other words, the burden is, quite simply, the obverse of that applicable where a stay is sought of proceedings started in this country as of right.

(3) The reason for this difference in approach is that unlike the situation wherein the plaintiff sues the defendant in Hong Kong as of right, in an O.11 situation (where the plaintiff requires leave), the defendant is by definition a foreigner who ‘owes no allegiance’ to Hong Kong (in that he is not automatically subject to the court’s jurisdiction here). The court must accordingly in this latter situation be careful not to subject that defendant to what may be an “exorbitant” jurisdiction (for example, the inconvenience or annoyance of litigating in Hong Kong rather than in his own country): see Spiliada Maritime Corporation v. Cansulex Ltd. at p.481 B-D.”

15.  With the above principles in mind I proceed to analyze the causes of action to see if they fall within these tests.

The Claims for Nuisance and Harassment

16.  The unwelcomed visits to the Plaintiff allegedly took place in Hong Kong.  However, at her home, it was the domestic helper who was frightened and not the Plaintiff who was harassed.  At her workplace, it was allegedly the colleagues who were forced upon by the Defendant, again not the Plaintiff.

17.  The emails belong to a different category.  They do create harassment (in the ordinary English sense) to the Plaintiff in terms of their frequency and contents. However, indisputably, they were not written or sent by the Defendant in Hong Kong.  Neither were they opened by the Plaintiff in Hong Kong. As pointed out by the Defendant, the Plaintiff appears to have opened the emails in question through the server of the Husband’s company when she was in Europe.

18.  What is more, harassment is not a stand-alone tort.  The Plaintiff seems to have classified it as a form of private nuisance.  However, nuisance is an act that unduly interferes with the use or enjoyment of land: Clerk & Lindsell on Tort, 20^th ed, para 20-01.  In Khorasandjian v. Bush [1993] QB 727,harassment by telephone calls was held to be an actionable interference with an 18 year old girl’s ordinary and reasonable use and enjoyment of her home where she was lawfully present as a licensee.  That case was overruled by the House of Lords which held that a plaintiff was required to prove an interest in land or a right to exclusive possession of property and not just a mere license to occupy: Hunter & ors v. Canary Wharf Ltd [1997] A.C. 655.  The position in England has since been overtaken by the Protection from Harassment Act 1997.  The Hong Kong position is still governed by common law.

19.  There is no proof as yet that the Plaintiff has exclusive possession to her residence at the staff quarters or at her workplace.   It is questionable whether she has sustainable causes of action in nuisance and/or harassment.

Claim in Libel

20.  The intention of the emails was to tarnish the Plaintiff’s reputation as a person and cast doubt on her fitness to be a professor.  In the email dated 13 July 2011 (subsequent to the writ), the Defendant stated that he managed to “expose the through (sic, should be “the truth”) and lies that will disqualify [the Plaintiff] as professor, being admitted that teaching human sciences request a minimum of intellectual honest; or this is just fake.”  His intention could not be clearer.

21.  Even if the Defendant could prove his case against the Husband, there is nothing in law to make the Plaintiff (or any family member) liable for his or his company’s acts.  Still less should the University be informed or troubled with the dispute between the Defendant and Husband.  The Defendant clearly intended to associate the Plaintiff and other people connected with the Husband with unlawful conduct yet to be proved to serve his personal vendetta against the Husband.  In so doing, he disparages the Plaintiff’s reputation in the eyes of fair-minded people, including her colleagues.   The emails were defamatory in nature.

22.  An alleged defamation is to be regarded as having been committed in the place where the publication comes to the attention of the reader of an internet posting and not where the web server is located: Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, High Court of Australia; Hong Kong Civil Procedure 2011,para 11/1/28A.

23.  In the present case, the emails were sent to the addresses of the Plaintiff and her colleagues at the University server, clearly intending the recipient to download and read them there.  Damage to the Plaintiff’s reputation would have occurred in Hong Kong.

24.  The Defendant submits that there was no evidence that his emails to the Plaintiff’s colleagues had been received or read.  With respect, libel is actionable per se. Publication being the gist of libel, the cause of action arises immediately the publication has taken place.  See Gatley on Libel & Slander, 11^th ed, para 3.6 and 6.1.

Stage I Test - The Proper Forum

25.  At least in relation to the claim for libel, there is a sustainable cause of action and the Hong Kong Court has jurisdiction. 

26.  The libel and damage to reputation occurred in Hong Kong. Hong Kong law applies instead of French law.  The likely witnesses for the Plaintiff will be herself and her colleagues in Hong Kong.  The Defendant has addresses in France and Shenzhen.  There is no difficulty in his coming to Hong Kong.  Hong Kong is clearly and distinctly the most natural and appropriate forum to litigate the claim in libel.

27.  The Defendant suggests having the proceedings in Paris because he has no comfort having the trial in Hong Kong.  He has already one action and he does not want to spend 10 years to fight a case with the Plaintiff.  He has not seen his family in France for a year.  He refers to an experience with an ex parte application in front of a judge when he was unprepared but was handed documents without notice.

28.  To my mind, the Defendant has not shown what connection this case has with Paris or any other jurisdiction.  His concern with the time needed for litigation can be allayed by proper case management by the Court.  His description of the ex parte applications (I believe is for interim injunctions in the Patent Action and this case) was not out of the ordinary under Hong Kong law. The Court did provide opportunities for him to address it in inter parte hearings such as the present one.

29.  The Stage I test has been satisfied.  There is nothing to consider under Stage II.  The Defendant has not shown anything under Stage III to tip the balance against having a trial in Hong Kong.

The Reliefs Sought by the Defendant on the Jurisdiction Summons

30.  The Defendant has asked for specific declarations as follows:

(i)   That the Plaintiff has not brought sufficient evidence that the Defendant has breached Hong Kong law inside the Hong Kong territory and jurisdiction.

(ii)   That the orders of the Court do not apply outside of the jurisdiction.

(iii)   That the Hong Kong Court has no authority to restrain:

“● the family, friends of collaborators of the defendant; representing a group of around 20 peoples in France USA; Iran; Australia; Israel; Turkey and China;

● to independently accede to the email address used by the defendant and the group as a privileged exchange platform for heavy documents; said email address and documents being domiciliated by Google in a server in USA;

● To independently download and store any of the contents exposed to the group including the court documents sent without any allowance to this “semi public” address by the plaintiffs.

● Any member of the group to independently transfer any document received to any public address available on any public websites; including to the addresses of the [University] staff; disclosed to the international public by the university.”

(iv)   That the Plaintiff has not brought sufficient evidence that any email sent by the Defendant has been opened and read by the recipients in Hong Kong.

(v)   That the Plaintiff has affirmed that the emails have been downloaded and opened and read by the Plaintiff outside of the jurisdiction.

The Defendant also asks that the claims be dismissed.

31.  With regard to the proposed declaration (i), the Plaintiff has, at this interlocutory stage, produced sufficient evidence to support her case on libel. As analyzed above, the Plaintiff sustained damage in Hong Kong so as to found jurisdiction in proceeding here.

32.  With regard to the proposed declaration (ii), whether or not the orders of the Court apply outside jurisdiction is a question of enforcement which we are not concerned with at this stage.  It is not a ground for denying the Hong Kong Court jurisdiction.

33.  With regard to the proposed declaration (iii), I believe the Defendant is suggesting that this Court cannot impose an injunction on his “family members” and others.  He claims that there are people who shared his email account and password.  I do note that the family members have not been made defendants to this action. However, there is clear evidence that it was the Defendant who fed his family members with information on his case with the Husband and this case so as to prompt emails from his family members that has the effect of defaming the Plaintiff.  In so doing, the Defendant was in fact in breach of the usual undertaking in confidentiality as a party, namely, not to disclose information obtained in this case except for the purpose of this case.  He is also aggravating his acts of defamation.  The Court does have power to restrain the Defendant and persons acting through him from doing so.

34.  With regard to the proposed declaration (iv), it is true that there is no such evidence.  However, libel is actionable per se. 

35.  With regard to the proposed declaration (v), it is true that the Plaintiff had opened the emails addressed to her when she was not in Hong Kong.  She cannot, of course, rely on these emails from the Defendant to her to found a claim in libel.  However, she can use these emails to establish the fact of harassment or nuisance (subject to the proof of interest in land as stated above).

36.  In summary, none of the proposed declarations can justifiably be granted.  The Defendant may have his own sense of grievance based on his own perception of French law.  He has regrettably mixed up the incidence of liability between individuals and limited companies which are separate legal entities.  He also harbours the notion that a wife is liable for the civil wrongs of her husband which is not part of Hong Kong law.  He may have expectation on how a professor should behave but that was simply not a reason to associate the Plaintiff with the Husband’s alleged wrongdoings.  None of the grounds put forth to oppose jurisdiction can withstand scrutiny. 

37.  The lack of proof for the claims in harassment and/or nuisance is not a sufficient ground to dismiss (or strike out) the Plaintiff’s claim at this stage.  Still less is the alleged failure of the Plaintiff to abide by court rules when attempting to serve documents on the Defendant by email.  The Defendant’s application should be dismissed.

THE INJUNCTION SUMMONS

38.  The Plaintiff asks that the Interim Injunction be continued.  She has to show that (i) there are serious questions to be tried;         (ii) damages do not provide adequate remedy; and (iii) the balance of convenience clearly lies in favour of granting an injunction.

Serious Questions to Be Tried

39.  As analyzed above, the Plaintiff’s claims on harassment and/or nuisance are questionable as a matter of law.  The evidence of a single visit by the Defendant to her home to serve court documents might not be sufficient to justify an interim injunction of the type granted.  Moreover, as pointed out by the Defendant, there were no particulars of his alleged unwelcomed visit to the University.  However, she has a valid cause of action in libel.

40.  The Defendant claims that he has told the story of his dispute with the Husband to SCMP but SCMP was not sued in defamation.  The story was public and might have consequences on the reputation of the University.  The accountancy of the companies (I take that to include the Husband’s companies) were necessarily inside the home of the remaining directors and hence inside the University campus.  There was no harassment to inform the dean of the University of such legal matters, so the Defendant submits.

41.  With respect, the fact that SCMP was not sued did not affect the fact that the Defendant has libelled the Plaintiff.  That a director of a company resided inside university campus does not mean the University was involved in anyway and had to be informed of his acts.  The Plaintiff’s case is supported by emails emanating from the Defendant the contents of which the Defendant is not yet able to justify.  There are serious questions to be tried on libel and the Plaintiff does have a strong case on the merits.

Adequacy of Damages as a Remedy

42.  The wrongful acts of the Defendant have caused damage to the Plaintiff’s reputation built up over the years, something clearly irreparable.  They have affected her concentration on work and her health, and caused her embarrassment in having to apologize to her colleagues.  The University and Plaintiff’s colleagues were also troubled.  Damages will not be a sufficient remedy for the Plaintiff.

43.  On the other hand, there will be no damage to the Defendant if an injunction is granted. 

Balance of Convenience

44.  The Defendant has shown no sign of stopping his email attacks.  He has forwarded to his family members the documents received from the Plaintiff’s solicitors by email in support of the application for interim injunction.  It was in breach of a party’s undertaking of confidentiality and not to use information received except for the purpose for the litigation itself.  The “wife” and “daughter” both admitted in the emails that they have read the Plaintiff’s affidavits.   His “family members” have since joined in the scheme of sending disparaging emails to the Plaintiff and her colleagues.  The Plaintiff has never met the Defendant’s wife, daughter and father nor had they been involved in the business venture between the Husband and the Defendant. The words used in their emails and contents, written in broken English and imperfect grammar, were similar to the style and format previously used by the Defendant. It can be inferred that the Defendant sent the documents to his family members to prompt their attacks on the Plaintiff.

45.  The balance of convenience is clearly in favour of granting an injunction pending trial.

Terms of the Interim Injunction

46.  The interim injunction should be continued until trial.  To put things beyond doubt, I make a slight adjustment so that in paragraph 2, after the words “third party”, there shall be added “including but not limited to the Defendant’s wife [name], daughter [name] and father [name]”.

COSTS

47.  Costs should follow the event and be paid by the Defendant to the Plaintiff with regard to both applications.  With regard to the Defendant’s application, I summarily assess costs in the sum of $28,000.  With regard to the Plaintiff’s application, I summarily assess costs (including costs reserved on 15 July 2011, 29 July 2011 and 12 August 2011) in the sum of $80,000.

CONCLUSION

48.  I dismiss the Defendant’s summons.   I order that the interim injunction do continue subject to changes in the wording stated in paragraph 48 above. The Defendant shall pay costs of $108,000 to the Plaintiff as costs for both summonses within 14 days.

49.  I thank counsel for her assistance.