HO YUEN KI WINNIE v. HO HUNG SUN STANLEY AND ANOTHER

cacv 329/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 329 OF 2007

(ON APPEAL FROM HCA NO. 1097 OF 2006)

----------------------

----------------------

----------------------------

J U D G M E N T

----------------------------

Hon Rogers VP:

1.  This was an appeal from a judgment of Hartmann J given on 7 August 2007.  The matter before the judge was an application on the part of the defendants that these proceedings be stayed on the ground that Hong Kong was not the appropriate forum to determine the action.  The judge dismissed that application.  At the conclusion of the hearing of this appeal judgment was reserved which we now give.

Background

2.  The plaintiff is the sister of the first defendant.  Both the plaintiff and the defendants were shareholders and directors of Sociedade de Tourismo e Diversoes de Macau (“STDM”).  STDM owned and managed casinos and hotels in Macau and for many years held the sole concession for the operation of casinos there.

3.  The judge recorded the origins of the dispute between the plaintiff and the defendants in paragraph 9 of his judgment where he said that in or about 2001 the Government of Macau was offering a number of casino licences for tender.  That would inevitably bring an end to STDM’s monopoly.  It was said by STDM that the plaintiff and her son had attempted to secure one of the new casino licences which would have enabled them to go into direct competition with STDM.  On the basis that the plaintiff’s actions were considered by the board of STDM to be against the interests of that company, the plaintiff was removed from her position as an executive director.  In mid-2005 it was resolved in an emergency general meeting of the company that action be taken to remove the plaintiff as a shareholder of the company.

4.  As the judge recorded, there have been a number of well-publicised lawsuits in Macau between STDM and the plaintiff.  Although this action arises out of the plaintiff’s dispute with STDM, neither that company nor any of its associated companies are parties to this action.

5.  The judge summarised the plaintiff’s claims in this action in paragraph 13 of the judgment.  There were three causes of action pleaded.  The first was against the first defendant and was an allegation that unlawful means had been employed to prevent the plaintiff transferring her shares in STDM.  As against both defendants it was said that there was a conspiracy to cause the plaintiff economic loss by preventing her disposing of her shares other than to the first defendant’s family at below market value.  The second cause of action was in defamation.  The third cause of action was for an account of monies which the plaintiff claimed was due to her as an annual bonus.

6.  In considering whether the Hong Kong proceedings should be stayed on the basis of forum non-conveniens the judge referred to the decision of the House of Lords in Spiliada Martime Corp v Cansulex Ltd [1987] 1 AC 460 and the decision of this court in Pei Zheng Middle School and Another v China Pui Ching Education Foundation Ltd and Others (unreported, CACV 262/2005, 21 February 2006).  In that respect it can be noted that both parties were in agreement that the judge referred to the correct tests.  The judge then held that it had been clearly demonstrated that Macau was the natural and most appropriate forum for the resolution of the plaintiff’s action.  Again, nothing arises on this appeal in respect of that since that holding is accepted.

7.  The judge, nevertheless, came to the conclusion that he should not stay the proceedings because the plaintiff had shown that if the present proceedings had to be tried in Macau she would be deprived of a legitimate personal advantage.  That arose because the plaintiff feared for her safety should she have to go to Macau.  A solicitor who had previously acted for her had been assaulted on two occasions with the consequence that he refused to represent the plaintiff any further.  The plaintiff herself had received threatening letters referring to those incidents and warning her not to go to Macau.  After that the new solicitor acting for her and an accountant who had been advising her also received threatening letters and in August 2006 there was a very serious and vicious attack on her new solicitor which caused him to be hospitalised for several days.  Whilst neither of the solicitors who had been assaulted were able to say for sure that the cause had been their representation of the plaintiff, the judge said that the only known common denominator was the fact that at the time of the attacks both represented the plaintiff in her Macau litigation.  Putting all these matters together the judge said at paragraph 33 of the judgment:

“33.  Does this history of intimidation constitute cogent, objective evidence that, if the plaintiff goes to Macau to pursue her action, there is a real danger that she and/or her representatives may be subject to harm?  Yes, I believe it does.  Past conduct is a standard tool for estimating future risk.”

8.  He went on to say in paragraphs 35 and 36:

“35.  During the course of submissions, it was said on behalf of the defendants that, to allow the plaintiff’s action to continue in Hong Kong would be to submit to the intimidation.  But that is not the issue.  The issue is whether the plaintiff should be forced to give up her legal proceedings in Hong Kong, proceedings which she has instituted in this jurisdiction as of right, and start them again in a jurisdiction in which she is subject to credible threats of intimidation.  Why should she be placed at that disadvantage?  That strikes me as a denial of justice to the plaintiff more than an act of balancing opposing measures of convenience.

36.   As I have said, who was responsible for the campaign of intimidation is not known.  There is no evidence that either defendant would tarnish his reputation with such conduct.  But again, that is not the issue.  The issue, in my view, is whether the plaintiff should be directed by this court to conduct her litigation in a jurisdiction in respect of which she and her lawyers have been the subject of intimidation.”

9.  In paragraph 39 the judge said of the plaintiff’s statement that she was too afraid to go to Macau to pursue her litigation and that she would rather abandon her case than run the risk of having to be in Macau in order to testify that her fear was rational.

10.  It was in those circumstances that the judge then came to the conclusion in paragraphs 43-46 of the judgment that although the natural forum was Macau and to have the litigation conducted in Hong Kong would add costs and possibly delay, there was cogent evidence that if the plaintiff was forced to bring her action in Macau her personal safety and that of her representatives may well be at risk.  On that basis the judge held that the balance was in favour of not granting the stay of the proceedings.

This appeal

11.  As already indicated, there was no dispute between the parties that the judge had identified the correct tests.  There was, furthermore, no dispute between the parties that this was an appeal against the exercise of the judge’s discretion.  In that regard the principles upon which this court must act are well defined.

12.  Mr Thomas SC, who appeared on behalf of the defendants, put his case on the basis that the defendants accepted the judge’s finding that the plaintiff had a legitimate fear for her own safety should she go to Macau and that was derived from the various incidents.  Counsel also conceded that the plaintiff had a right to commence these proceedings in Hong Kong.  The core of his argument was that the plaintiff had not established that she would suffer any detriment by having to litigate in Macau and, in those circumstances, the plaintiff had not established grounds for the action not to be tried in Macau.

13.  The argument was that the plaintiff’s litigation could and should be conducted in Macau without the plaintiff having to attend.  Counsel emphasised that the procedural law in Macau prevented a party from giving evidence in that party’s own favour.  That was accepted by Mr Lee SC on behalf of the plaintiff.

14.  However, the defendants’ own evidence was that a “counterparty”, in other words the defendants in this case, could call upon the plaintiff to give evidence in respect of personal facts or matters of which it can be demonstrated she would have knowledge.  The evidence went on:

“The purpose of examination is to seek clarifications and admissions (if applicable) to matters which are negative to their position in the litigation.  Occasionally, the court may summon any of the parties to explain issues relevant to the dispute.  Only in either one of these cases could Mdm. Ho be required to depose before the court.”

Paragraph 23, second affidavit of Henrique Miguel de Pedro Saldanha, filed 25 October 2006.

15.  In an attempt to bolster their evidence, the defendants applied to have admitted for the purposes of this appeal further evidence.  The first was an affidavit from a former justice of the Portuguese Supreme Court of Justice who had retired in November 1994.  That affidavit by Fernando Jorge Castanheira da Costa gives a further explanation of the procedure.  The procedure entails that the judge hearing the case puts questions to one of the parties.  The party requesting that the opposing party may be required to attend to give evidence leading to a potential admission being made has to give a clear indication to the court of the factual issues in respect of which the testimony is requested.  That affidavit carries on in paragraph 11:

“In circumstances where the Court finds that the party’s non-attendance is justified, most normally when that party cannot attend due to ill health, the Court will decide the facts that would have been the subject of the confession on the basis of other evidence before it in the proceedings, following the general legal principles on the burden of proof (Section 342 of the Civil Code).”

16.  Based on that it was Mr Thomas’ submission that the plaintiff was an elderly person who had on two previous occasions relied upon certificates issued by a Hong Kong doctor which had been accepted by the judge hearing the relevant cases in Macau to be a justified reason for non-attendance.  The submission was that the plaintiff would never be medically fit to journey to Macau to give evidence and, hence, her attendance would always be excused.

17.  In my view, that submission entirely overlooks the contents of the two certificates from the doctor.  The first in December 2006 states that the plaintiff would be reassessed in one month but in the meantime she was recommended to stay in Hong Kong in order to minimise the physical and mental stress of travel.  In the second certificate, that issued on 3 July 2007, it was stated that the plaintiff was unfit to travel for two weeks.  Those certificates, therefore, clearly do not established that the plaintiff would be permanently too ill to travel to Macau.  The fact that the plaintiff has commenced a number of actions in Macau, does not demonstrate that she is confident of being able to be excused court attendance there by reason of ill health.  As the judge pointed out the nature of those proceedings probably dictated that they had to be brought in Macau.  In those circumstances the basis upon which it is suggested that the plaintiff would always be in a position to justify her non-attendance to the Macau court falls away.

18.  Given the fact that there has been two previous occasions when her attendance was requested in Macau proceedings there seems ample justification for the statement made in paragraph 19 of the second affidavit of Lionel Alberto Alves filed on 11 December 2006 that:

“However, judging by the nature of the Plaintiff’s claim here, chances are that the Plaintiff will be called upon by the Defendant or the Macau court to testify if the claim is to be made here.”

19.  The remaining points made by counsel on behalf of the defendants when seen in that context do not begin to establish that there are grounds for interfering with the exercise of discretion by the judge below.  Given the history of the matter and the attacks and threats which had been made against the plaintiff’s professional advisers the judge was amply justified in making reference to the lawyers having a rationally based fear of physical violence.

20.  I would therefore dismiss this appeal with an order nisi of costs in favour of the plaintiff.  As is apparent from what has been said above, I have given full consideration to the new evidence sought to be adduced.  In my view it did not advance the defendants’ case and, for the most part, could have been obtained before.  As a matter of formality I would not give leave to admit it.

Hon Le Pichon JA:

21.  I agree.