SECRETARY FOR JUSTICE v. SIEGFRIED LEE SIU FUNG AND OTHERS

HCMP 2851/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2851 OF 2004

______________________

______________________

____________________________________

REASONS FOR DECISION

____________________________________

The Application

1. Following the oral examination conducted before me against the 2^nd Judgment Debtor Mr. Daniel Chan Kwong Tat (“Chan”) on 20 February and 16May 2006, the Judgment Creditor applied by way of an inter partes summons filed on 16 June 2006 (“the Summons”) for an order to imprison Chan for a period of 3 months under Section 21A of the High Court Ordinance and Order 49B Rule 1B of the Rules of High Court.

2. A call-over hearing of the summons was heard on 14 July 2006.  While Chan was acting in person during the course of the oral examination, he was legally represented by Counsel at the said call over hearing.  To put a proper foundation for the said application by the Judgment Creditor so that Chan could respond in good time, directions were made for filing and serving of written submissions by parties before the adjourned hearing.  Since a prohibition order was in place against Chan since last December up to the said hearing, I also directed that the matter be restored before me with an early date be given.

3. The formal hearing came before me on 21 September 2006.   Parties have filed their respective written submissions.  Upon considering the same and hearing further oral submissions from Ms. Chan for the Judgment Creditor and Mr. Chang for the 2^nd Judgment Debtor, I decided to dismiss the Summons.  On costs, I made no order as to costs of the Summons save that costs of the hearing on 21 September 2006 be to the 2^nd Judgment Debtor to be taxed if not agreed, such costs to be set off against the Judgment Debt.  At the hearing, I indicated that I would give my reasons in writing later, which I now do.

Background

4.  To have a better understanding of the matter in particular the line of questioning put against Chan during the oral examination, it is desirable to give a brief summary of the events leading to the examination.

5. After conducting an extensive inquiry, the Insider Dealing Tribunal (“the Tribunal”) determined that Chan, amongst others, was involved in insider dealing of the listed shares of Siu Fung Ceramics Holding Limited.  As a result, on 25 October 2004, Chan was ordered by the Tribunal, inter alia, to pay the Hong Kong SAR Government a penalty of HK$13,925,337.00 and a sum of HK$2,296,339.00 being approximately 10% of the cost of the inquiry on or before 31 March 2005 (“the Tribunal Order”).

6. In the meantime, the Judgment Creditor representing the Hong Kong SAR Government then registered the Tribunal Order pursuant to Section 29(1) of the repealed Securities (Insider Dealing) Ordinance in the Court of First Instance on 2 November 2004 so that the Tribunal Order shall become for all purposes an Order of the Court.

7. Chan failed to pay the said sums under the Tribunal Order.  To enforce the Tribunal Order, an oral examination order was obtained against Chan.  While Chan has been residing in New Zealand for a period of time, just when he returned and entered Hong Kong, the Judgment Creditor applied and obtained a prohibition order against Chan.  Chan sought to discharge the prohibition order before me on 9 January 2006 but was unsuccessful.  Directions were given on that occasion for the purpose of conducting the oral examination.  Thereafter, a series of prohibition orders and various extensions thereof were granted by this Court to secure the personal attendance of Chan at the examination and this Summons.

Order 49B of the Rules of High Court and the Law

8. The Judgment Creditor relies upon the provisions under Order 49B of the Rules of High Court for the oral examination and the Summons.  The relevant parts of the provisions are set out below:

9. The Judgment Creditor relies upon grounds under subrule 1B(a) and (c) to seek the order for imprisonment against Chan; that is, Chan is able to satisfy the judgment, wholly or partly; and he has wilfully failed to make a full disclosure as required under rule 1A(2) or to answer any question.

10. Both Ms. Chan and Mr. Chang have no dispute that my previous judgment in Trading Consultants Ltd. V. John Stewart Sloan, DCCJ 2548 and 13438 of 2000 (unreported, 7/11/2001) has summarized the applicable legal principles, namely:

“	7.	The law as it now stands only empowers the court to imprison a judgment debtor on confined grounds as those specified under Order 49B Rule1B(1).  The Court should exercise its discretion with care and circumspection so that a judgment debtor would not be imprisoned merely because he has no means to satisfy the judgment debt no matter whether the Judgment was entered by consent or otherwise.
	8.	Mr. Clarke for the Judgment Creditor accepted that as the relief sought is of a criminal nature, he must prove the grounds on a criminal standard of proof, i.e. the court must be satisfied beyond reasonable doubt before an order of imprisonment will be made (see Bank of India v. Murjani & others [1991] HKLY 819 and Hua Chiao Commercial Bank Ltd. v. Alpha Plus International Development Ltd. HCA 14714 of 1999).
	9.	The present application for imprisonment of the Judgment Debtor was proceeded under grounds (b) and (c) of Rule 1B(1).    Under ground (b), the Judgment Creditor has to show that the Judgment Debtor has disposed of assets.  Although the rules do not specify whose assets, it must follow that it should refer to the assets of the Judgment Debtor but not the others.  As decided in the case of Luen Hing Fat Textile Ltd. v. Lam Shing-chin t/a New Cotton Trading Company [1990] 1 HKLR 737, in order to invoke the rule to imprison a judgment debtor, the wordings of the provision must be construed strictly.  Furthermore, the Judgment Creditor has to prove that the disposal was made with a view to avoiding satisfaction of the Judgment Debt.
	10.	For ground (c), the failure to make a full disclosure must be deliberate and intentional as opposed to accidental and negligent.  The failure to make disclosure should be judged as a whole following the examination rather than for disobedience of a specific order (Luen Hing Fat Textile Ltd. v. Lam Shing-chin t/a New Cotton Trading Company, op cite followed).”

11. Mr. Chang further submitted that since the criminal standard of proof is applicable to the Summons, any inference that is to be drawn by the Court against Chan must be the only and irresistible one (see Kwan Ping Bong& another v. The Queen [1979] HKLR 1 at 5).

The Judgment Creditor’s Case

12. Ms. Chan for the Judgment Creditor asserted in her submission that the 2^nd Judgment Debtor was giving inconsistent oral testimonies during the oral examination and was evasive in answering questions posed by her.

13. The main complaint of the Judgment Creditor against Chan focused on his testimony as to the whereabouts of the sum of HK$25 million purportedly received by Chan from Siu Fung Ceramics Group (“the Company”) on his resignation of directorship.  The Judgment Creditor argued that Chan refused or avoided to answer questions put to him in relation to the details of his accounts to which his receipt of the said sum of HK$25million was deposited back in 1996, and his subsequent dealings with the said sum. Contradictory statements were given by Chan on different occasions. 

14. Further, Chan was evasive in confirming the present whereabouts of the money and wilfully failed to disclose bank information at which the money was deposited.  The Judgment Creditor suggested that Chan has concealed the money in question or refused to make it available in satisfaction of the debt owed to the Government under the Tribunal Order.  They took the view that Chan still has the money in hand and is therefore able to repay the debt.

15. The Judgment Creditor further urged the Court to draw a strong inference that Chan has failed to make full disclosure of his assets in light of his contradictory testimony and uncooperative attitude given in the course of the oral examination.

16.  To support the Judgment Creditor’s arguments, Ms. Chan confirmed that she would only rely on the testimonies given by the 2^nd Judgment Debtor during the oral examination.  Before the hearing, the 2^nd Judgment Debtor’s solicitors have prepared a separate bundle of documents consisting transcript of the Inquiry of the 2^nd Judgment Debtor at the Tribunal.  Ms. Chan, at the outset of the hearing, opposed the intended use of such transcript by Mr. Chang.

17. Mr. Chang explained that he was not relying upon the said transcript as direct evidence for the purpose of the Summons.   Instead, he was trying to demonstrate that the questions put forward by Ms. Chan at the oral examination were factually incorrect by reference to such transcript.  Mr. Chang suggested that the 2^nd Judgment Debtor’s answers to those questions should be viewed in that context.

18. Ms. Chan argued that she did not have the transcript before the oral examination and has not read the same before she cross examined the 2^nd Judgment Debtor.  She only received some reliable information that the 2^nd Judgment Debtor gave statements to the Tribunal about his receipt of HK$25 million from the Company.  Therefore, she has to ask questions on this issue.

19. During the hearing, I deferred to rule on such objection raised by Ms. Chan until Mr. Chang considered whether he would refer to the transcript in his oral submission.  Eventually, Mr. Chang decided not to refer to the transcript and the arguments rested there.

Testimonies of the 2^nd Judgment Debtor

20. It is impossible to rule on the Summons without referring the oral testimonies given by the 2^nd Judgment Debtor during the oral examination.

21. The oral examination was conducted in Cantonese and the transcript of the same was of course written in Chinese.  To properly understand the relevant and material parts of the testimonies of the 2^nd Judgment Debtor, instead of translating the same in English, I would refer and set out the actual texts in Chinese.

22. The gist of Ms. Chan’s complaint against the 2^nd Judgment Debtor was that on one hand he said that after receipt of HK$25 million, it was transferred to his overseas bank account but later he retracted from such answer and said that the overseas account belonged to Lee Siu Fung. 

23. The relevant parts of the transcript of the testimonies given on 20 February 2006 are as follows:

“	陳小姐：咁誒因為呢有關嗰個嘅命令呢，就係誒牽涉阿陳生呢喺兆豐陶瓷集團內幕交易--誒--誒有關嗰個嘅誒內幕審裁署所頒嘅命令嚟嘅。
	問：咁而阿陳生，你當時係有喺內幕交易聆訊呢係作供嘅，係咪？
	答：對。
	問：你當時期實係咪有講過，喺1996年，誒你係辭去兆豐陶瓷集團主席一職，…
	答：唔係主席。
	問：…之前呢你係收到阿李兆豐（譯音）先生一筆為數港幣二千五百萬嘅金額呢？
	答：對。
	問：而你當時亦都係作供呢，係承認呢筆金額呢，呢筆金錢呢，係李兆豐先生誒作為對你多年為集團服務嘅一啲誒--誒係獎勵嚟嘅，獎勵金額嚟嘅？
	答：對。
	問：咁而你係正式响誒零--96年嘅9月呢，就係辭去誒兆豐陶瓷集團主席一職，係咪？
	答：誒對唔住，唔係主席，董事。
	…
	…
	問：而你嗰筆款額呢，就喺同年嘅七月收到嘅？
	答：對。
	問：而你當時期呢亦都承認呢筆款項呢係你自己收取嘅，當中呢有一千萬呢係入咗落去你海外嘅戶口嘅？
	答：對。
	問：另外一千五百萬呢，係入咗落去你誒母親嘅戶口嘅？
	答：對。
	問：但係其後呢你又由你母親嘅戶口呢再轉到你自己名下嘅海外戶口？
	答：轉嗰筆錢去oversea。
	問：你當時係咪有咁講過呢？
	答：有，有講過。	”

Ms. Chan relied those parts of the testimony underlined to show that the 2^nd Judgment Debtor admitted the overseas bank account belonging to him.

24. Ms. Chan then started to cross examine the 2^nd Judgment Debtor on the details of the overseas bank account and in particular who owned such account. The 2^nd Judgment Debtor then raised the issue of privilege against self-incrimination.   Upon my explanation of his right to seek legal advice before answering the questions, the 2^nd Judgment Debtor chose to answer the questions.   

“	問：咁請問你嗰個海外戶口，係即係乜嘢嘅戶口呢？
	答：海外戶口囉，總之而家就係話2001年1月1號開始，我係冇--我係冇嗰個戶口。即係而家問題就係問，你係問緊我2001至2005年我所有嘅銀行戶口資料吖嘛，我已經係答晒你，就係話我喺2001年1月1號至到2005年嘅3月31號，我已經詳盡披露晒我所有--所有銀行或者其他嘢嘅資料，就喺呢度。
	問：我要你親身答我，你嗰二十--誒二千五百萬嘅港幣係轉到去--當時係轉到去邊一個戶口？同今次呢個法庭即係同--要求你去作出誒對前五年嗰個文件披露呢，係另外一條問題嚟嘅。
	答：法官大人，我--我喺嗰個insider dealing嗰陣時我已經講過，就係話我係怕即係話有一樣嘢係刑事檢控嘅，係申請唔--唔想作答，就係呢一個原因。
	官：但係而家同刑事檢控係冇關係個喎，而家喺呢個，係民事上面嘅--民--民事上面嘅--嘅盤問聆訊，係兩回事嚟個喎，佢哋係有權問番你可以被即係吓追討嘅資產嘅所有有關問題。咁所以我而家一路聽緊，係關於緊你之前收到嘅錢，而家轉咗落邊個戶口嗰度，同你有機會被刑事檢控係兩回事嚟喎。你認為點解你覺得呢部份你係有機會被刑事檢控呢，如果你係作答咗有關嘅問題？
	答：我個錢係轉咗過去星加坡嗰邊嗰個戶口。
	問：請你講清楚嗰個戶口嘅詳細資料？
	答：我唔知道嗰個戶口係邊個喎，即係總之我係以根據嗰個戶口--嗰個戶口嗰個冧巴去轉過去。
	官：咁嗰個戶口係咪你嘅戶口先喇？
	答：唔係，我--我驚會係畀…
	…
	答：…刑事檢控係呢樣吖嘛。
	官：你--你--嗱，你首先第一樣嘢先，我唔知道點解你覺得會有機會係被刑事檢控，不過嗱，我要提醒你，如果你真係覺得你答咗呢條問題係會有機會係形成一個刑事檢控嘅話呢，咁你係有權唔答嘅，不過你要解到畀我聽先，咁同埋呢你覺得點解有咁嘅情況。嗱，或者如果你真係驚有咁嘅問題嘅話呢，或者我亦要建議你去尋求你嘅律師嘅意見，或者你如果想嘅話呢，由你律師代表你呢作出有關嘅陳詞。…嗰個刑事--嗰個誒內部審查嗰個--內幕交易調查委任員會嗰個聆訊，係幾時開--幾時做嘅？
	陳小姐：係01年。
	官：01年，咁而家05年，如果佢都冇檢控嘅，點解你有咁嘅憂慮呢，我想問吓？
	…
	問：誒我諗咁樣喇，陳生，當時期呢證鑑會有關嘅調查員呢係向你誒作出盤問嘅時候，你係承認嗰筆錢呢，二千五百萬呢係存咗入去你個人名譽嘅--而持有嘅海外戶口，咁當中呢其實你係--誒嗰--嗰筆錢係以兩張支票呢係交畀你嘅，而你係將嗰兩張支票呢就存入咗你响匯豐銀行嘅一個嘅誒支票戶口，再由個誒匯豐銀行嘅支票戶口轉出去誒你名下呢一個嘅海外戶口嘅？
	答：唔係我名下。
	…
	問：…--嘅誒證供嘅時候，就同今次我哋今日出庭你講嘅有出入，當時期你係講你係轉去畀你海外嘅戶口嘅。
	答：係，海外戶口，總之係海外戶口。
	…
	問：咁點解當時期，或者你誒當時期你回答證鑑會嗰個問題嘅時候，你係話你自己嘅，屬於？又或者就算係喺呢今次呢個聆訊裏面，你都答我剛才問你嘅問題，係屬於你自己嘅？
	答：我而家係由頭到尾係講我個資產嘅問題吖嘛，我係冇呢筆錢，冇呢個資產喺度吖嘛。	”

25. At this juncture, perhaps it is appropriate to refer to the submission of Mr. Chang that the factual allegations put into the questions posed by Ms. Chan were factually incorrect.  In this connection, he purported initially referred to the transcript of the hearing of the Tribunal. 

26. Ms. Chan denied such accusation.  However, judging from those parts that I have highlighted above by italics, it must appear to the minds of any reasonable person that Ms. Chan was trying to confront the 2^nd Judgment Debtor with what he had said previously at the hearing of the Tribunal.  It is proper to assume that when she put those questions to the 2^nd Judgment Debtor at the oral examination, Ms. Chan would have known the testimonies of the 2^nd Judgment Debtor given at the Tribunal hearing.  In fact, that was my impression.  Otherwise, I would not remind Ms. Chan  during the course of her cross examination that I did not have the transcript of the Tribunal hearing (line G at page 44 of the Bundle).  Later, I further reminded Ms. Chan not to repeat what had been asked during the Tribunal hearing (line C at page 47 of the Bundle).

27. It turns out from the submission of Ms. Chan at this hearing that she did not have the transcript of the Tribunal hearing before the oral examination and she only obtained reliable information from some other sources about the money.  Since eventually Mr. Chang chose not to refer to the transcripts of the Tribunal hearing, I cannot say whether the questions put by Ms. Chan were factually incorrect or not.  Nevertheless, I must say that such questions put by Ms. Chan were at least misleading and I must consider the answers given by the 2^nd Judgment Debtor in such context.

28. Mr. Chang further drew my attention to the facts that during the hearing of the Tribunal, when the 2^nd Judgment Debtor was asked with similar line of questions about the details of the overseas account whereby the said sum of money was eventually transferred to, he also claimed the privilege against self-incrimination.  At the hearing, Mr. Justice Lugar-Mawson, the Chairman of the Tribunal ruled that the 2^nd Judgment Debtor was entitled to claim such privilege.

29. Ms. Chan did not dispute such fact.  If I were informed of such ruling of the Tribunal at the time of the examination, and with the benefit of legal submission which the 2^nd Judgment Debtor’s legal representative had made at the Tribunal, I might also allow the 2^nd Judgment Debtor to claim privilege and not to answer such questions.

30. Under the possibility of criminal prosecution, the 2^nd Judgment Debtor still chose to answer the questions.  His answers must in my view carry considerable degree of truthfulness.

31. Ms. Chan continued putting to the 2^nd Judgment Debtor that he was still in possession of HK$25million but the 2^nd Judgment Debtor flatly denied the same.  He maintained such denial throughout the examination.  Upon pressing by Ms. Chan to seek confirmation who owned the overseas account, the 2^nd Judgment Debtor eventually disclosed that it was owned by Lee Siu Fung.

“	問：但係當中嗰二千五百萬嘅港幣，而家--誒--誒或者當時期，你點樣處理呢？
	答：我唔知道。
	問：但係你頭先剛才同法庭係承認，嗰筆錢係李兆豐先生畀你嘅一筆誒--誒服務嘅獎賞金，响你辭職之時係畀你個喎，你亦都確認係你係收到呢一筆錢嘅，咁點解你會咁大筆錢，二千五百萬嘅港幣，你會唔知道中間係點樣處理？
	答：我轉咗過去嗰度之後，就冇理到。
	問：點解會係…
	答：即係我可以答畀你聽，就係話我二零--即係總之我係2001至2005年，喺呢段時間，所有嘅oversea bank account就已經披露晒出嚟嘞。
	問：唔。咁即係話--嗱，如果我咁樣講喇，如果你話唔知道，誒總之你係承認你係轉咗二千五百萬去星加坡BNP銀行嘅話呢，我而家向你指出，你現時仍然係擁有呢為數港幣二千五百元嘅金錢？
	官：二千五百萬。
	問：二千五百萬…
	答：肯定冇。
	問：…嘅金錢？你嘅答案係…
	答：肯定冇。
	問：但係你解釋唔到點解你唔知道嗰個戶口誒幾時停用，亦唔知道嗰筆款額誒而家係去咗邊度，或者係當時期點樣處理咁大筆嘅金錢？
	答：我唔知道。
	…
	…
	答：誒法官大人，嗰個戶口唔係屬於我嘅。
	官：唔。即係戶口唔係你名下嘅？
	答：對。
	…
	問：而家個戶口…
	答：而家我唔知道，我唔知道，而家我唔知道嗰個戶口。
	問：咁既然嗱，而家嗰個戶口你唔--你唔知道屬於邊個，咁當時期你話你將二千五百萬嘅港幣存入去嗰個戶口嘅時候，你知唔知嗰個戶口係屬於嘅？
	答：應該係屬於李兆豐。
	…
	答：但係我跟住將嗰筆錢轉咗出去咋嘛。
	問：「轉咗出去」嘅意思係…
	答：存番入去星加坡嗰個戶口咋嘛。
	問：嗰個戶口你而家就係講話唔係屬於你自己嘅，陳先生，我有理由相信你而家仍然係擁有呢港幣二千五百萬元正嘅金錢嘅，咁我…
	答：我係冇喎，你如果係認為係，我冇得講吖，不過你如果係嘅，你咪證明我呢樣嘢囉。	”

32. Ms. Chan also complained the 2^nd Judgment Debtor for failure to produce bank statements of the overseas account showing his receipt of HK$25 million since July 1996 to present.  Instead, the 2^nd Judgment Debtor simply alleged that the account did not belong to him but failed to produce any supporting information at the adjourned oral examination in May 2006.

“	陳小姐盤問
	問：陳先生，咁你喺上次二月二十號呢，係一連串係承認咗我向你發出嘅問題喇，就係你係喺九六年係收取二千五百萬，就作為你响兆峰(譯音)嗰個集團裏面服務多年嘅一啲嘅酬金嘅。咁你亦都上次亦都承認，喺有關嘅內幕交易聆訊裏面呢，係承認有收取呢二千五百萬嘅金錢。咁點解你今日係冇向法庭係提出有關呢個二千五百萬呢個金額嘅銀行交易嘅紀錄呢？
	答：我上次講嗰個收取嗰個數，係我--係我喺證監會嗰陣時講嗰陣時嗰個收取，咁嗰個錢係支票，係經過我個戶口，同埋我阿媽嘅戶口匯番出去新加坡個海外戶口。我亦都承認咗喺上次講，我話嗰個戶口係唔屬於我嘅，係屬於李兆峰(譯音)先生嘅。咁我何來點會畀到我啲資料你啫。
	…
	答：我意思係話喺證監會嗰個文件嗰度講，嗰個錢係屬於係我，嗰陣時我老闆寫畀我嗰個二千五百萬。但係事關呢個--呢個係事實，真相就係我冇呢次--由頭到尾，我係冇呢個--戶口唔屬於我嘅，錢亦都唔屬於我嘅，我點會畀到啲資料你啫。我戶口我都唔知係咩嘢冧把。
	問：嗱，如果你前後講嘅嘢係有出入嘅，我唔知邊啲係事實嘅真相。因為上次你係講到呢二千五百萬係你嘅個人酬金嚟嘅，係你個人收取嘅，咁亦都係轉到你個人名義嘅海外戶口嘅。咁當中有一千五百萬亦都落咗去你母親嘅戶口，後來亦都係轉過去你個海外嘅戶口嘅。你上次亦都有提及呢，呢二千五百萬分別係有兩張支票，抬頭係分別都係寫你個名嘅。咁你後來就亦都講到呢個戶口亦都係新加坡一個戶口，銀行呢就係BMP，咁係咪即係國家--呀，法國國家巴黎銀行呀？
	……
	答：不過呢個戶口唔係屬於我㗎嘛，我點樣會攞到個戶口資料畀你呀？
	問：陳生，咁你係咪承認有收過二千五百萬嘅酬金？
	答：嗰個酬金係佢畀我--寫支票畀我，經我入落去佢嗰個新加坡戶口嗰度。我上次已經喺呢度已經講咗，我初初嗰陣時係話驚係刑事起訴，就係因為我喺證監會嗰陣時講話屬於我㗎嘛。褸屘我都好--真真正正同法官講咗喇，我都話唔係我個囉，個戶口。
	…
	官：嗰二千五百萬實際上喺你手上有幾耐時間？
	答：即日即刻匯走囉。
	官：即係嗰頭你入支票入戶口嗰頭你匯番走？
	答：係。
	官：咁張支票都未過到數個喎？
	答：即係過咗之後，因為喺銀行嗰度mark good跟住匯--匯走㗎嘛，因為嗰陣時係李兆峰先生個戶口喺匯豐銀行，我亦都啱--我亦都有個戶口喺匯豐銀行㗎嘛。即係以我嘅記憶就應該係跟住入咗，過咗戶就跟住匯走新加坡戶口。
	…
	答：我嗰陣時講就係話喺證監會，我--我意思係你講嗰二千五百萬係講證監會嗰陣時講嗰個樣嘅，即係。但我上次喺Insider Tribunal嗰陣時，嗰陣時已經畀佢哋講晒，其--而法官同埋所有嘅人都知道嗰啲錢係唔屬於我㗎喇。嘩，如果我做--我喺佢嗰度做兩--兩--三年幾四年，咁快攞二千五百萬，我就真係發達喇，即係如果--如果真係啲錢係屬於我嘅，我一早已經還咗畀你，我唔使咁煩喇，我何來點會有千幾萬--六千--一千六百幾萬找數，如果我二千五百萬，我真係收到嘅話，我還咗畀你呀，我唔使咁而家變到身敗名裂，自己一啲錢都冇，仲要陷--畀人陷害到我話我係一個內幕交易嘅人。
	問：嗱，首先內幕交易嗰個程序呢，已經完結咗㗎喇。咁今日呢一個係另外一個嘅程序嚟……
	答：我明白，我只係--即係只係「呻」下我自己本身嘅冤氣，因為我自己從來都冇得益過，只係老闆叫我跟住做，我就照做咗呢樣嘢，我都估唔到會係咁大件事，因為本身我--我知道我自己嗰個教育水平唔係咁高，如果我知道呢啲係咁嘅嘢，我一定唔會做喇。對唔住吓，我--我即係自己--自己喺呢度講番，即係我自己嘅感受咁解啫。	”

33. I find it not surprising that the 2^nd Judgment Debtor cannot find any bank statement of the overseas account since the same was not belonged to him.  It is rather difficult to ask a person to prove something not belonging to him.  In fact, as submitted by Mr. Chang, the 2^nd Judgment Debtor had tried to provide to the Judgment Creditor the bank statement of HSBC for the relevant period back in 1996 when he transferred the money out to the overseas account.  HSBC replied that they only retain records of up to 7 years only and therefore cannot provide the records as requested by the 2^nd Judgment Debtor.

Findings of the Complaints of the Judgment Creditor

34. The Judgment Creditor argued that the 2^nd Judgment Debtor gave inconsistent testimony and was evasive.                                

35. As I can see, the only incident when the 2^nd Judgment Debtor was said to give inconsistent testimony during the oral examination was when he was first asked in February 2006 whether the sum of HK$10 million was transferred to his overseas account and the 2^nd Judgment Debtor answered in affirmative.  Later, the 2^nd Judgment Debtor maintained that the overseas account did not belong to him.  He maintained such stance in the adjourned hearing about 3 months later in May 2006.

36. As mentioned above, the question was asked in a misleading manner.  The 2^nd Judgment Debtor was seemingly confronted by Ms. Chan for what he had given statement in the inquiry of the Tribunal about the transfer of HK$25 million.  He later decided to waive his claim of privilege facing with the risk of criminal prosecution and corrected what he said initially.  He maintained such stance all through the rest of the oral examination.   I believe his clarification made at the examination.

37. The Judgment Creditor has not produced any statement or testimony given by the 2^nd Judgment Debtor during the inquiry of the Insider Dealing Tribunal to contradict his testimony given in the present oral examination.  There is plainly no independent evidence to contradict what the 2^nd Judgment Debtor said about the ownership of the overseas account.

38.  As held by me in Trading Consultants Ltd. V. John Stewart Sloan (op. cit), I have to judge the credibility of the 2^nd Judgment Debtor from the totality of his evidence and through the observation of his gesture and demeanour when he gave evidence in court under oath.  From the overall testimony given by the 2^nd Judgment Debtor at the 2 hearings, despite the said inconsistency, I am satisfied that the 2^nd Judgment Debtor was a credible and honest witness.  I do not find him evasive.  Facing with possible criminal prosecution, he was frank enough to disclose the real person who was at the material time holding the overseas account and masterminded the whole transaction in transferring the money to overseas.

39. I accept the explanation of the 2^nd Judgment Debtor that he was instructed by Lee Siu Fung to transfer the money of HK$25 million through his own HKBC account to the Singapore BNP account on the same day when he received cheques from Lee Siu Fung.  The Singapore account did not belong to him and was apparently belonged to Lee Siu Fung.  After the money was transferred to such account, the 2^nd Judgment Debtor did not know what had happened to the money.

Conclusion

40. For reasons as stated above, the Judgment Creditor failed to prove beyond reasonable doubt that the 2^nd Judgment Debtor has wilfully failed to make full disclosure.   The only substantial asset that the Judgment Creditor tried to identify against the 2^nd Judgment Debtor was the said sum of HK$25 million.  In light of the above findings, the Judgment Creditor must also fail to establish his other ground of the application that the 2^nd Judgment Debtor is able to satisfy the judgment, wholly or partly.

41. In the premises, the Summons for imprisonment of the 2^nd Judgment Debtor must be dismissed.

42. Both parties asked for costs of the Summons.

43. While the Judgment Creditor may consider necessary to apply for the order for imprisonment against the 2^nd Judgment Debtor in light of the alleged inconsistent statement given at the oral examination and his initial hesitation to answer question on the ownership of the overseas account, after receipt of the written submission of the Counsel for the 2nd Judgment Debtor, they should seriously consider withdrawing the application.  Based on the evidence available, the Judgment Creditor could hardly discharge the onerous burden of proof.  As such, to proceed further arguing the issue at the substantive hearing should follow with the necessary costs consequences.

44. To do justice and in order to be fair to all parties, I ordered that there be no order as to costs of the application save that costs of the hearing on 21 September 2006 be to the 2^nd Judgment Debtor to be taxed if not agreed.

45. Since the 2^nd Judgment Debtor is yet to pay the Judgment Debt owed to the Government under the Tribunal Order, I also ordered that the said costs to be set off against the said Judgment Debt.

46. Ms. Chan also sought to ask for costs of the oral examination at the hearing.  Such application should normally be made at the conclusion of oral examination instead of at a later stage.  However, no application was made until almost 4 months later after the conclusion of the examination.  As the hearing of the Summons was overrun already and I see no urgency of such application, I ordered to adjourn such arguments on the costs of the oral examination to a date to be fixed with 1 hour reserved.