Numeric City Ltd v. Lau Chi Wing

DCMP 2850/2015

IN THE DICTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2850 OF 2015

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BETWEEN

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R U L I N G

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1.This is an application by the plaintiff for an order that the defendant, Mr Lau, be committed to prison for contempt of court in making a false statement, namely, his witness statement dated 31 March 2014 filed in DCCJ 1347/2013 which is verified by his statement of truth, without an honest belief in its truth.

Background

2.This application arose from what would otherwise be a dispute between landlord and tenant in a previous District Court action, namely DCCJ 3996/2011, where one Madam Chan Kam-fong, as administratrix of the estate of one Madam Ko, sued Mr Lau for arrears of rent in respect of a residential unit in Causeway Bay.  There, Mr Lau filed a defence admitting himself to be the tenant of the residential unit in question. 

3.As it turned out, a third party commenced action in this court under DCCJ 1347/2013 against the plaintiff in the present application, namely, Numeric City Limited, in respect of the residential unit in question.  Very briefly, that third-party, one Madam Shi, claimed for possession of the residential unit on grounds of proprietary estoppel and/or constructive trust.

4.In this subsequent action, Mr Lau, this time served as a witness of Madam Shi and gave evidence on her behalf.  In a nutshell, Mr Lau this time retreated from his earlier position as per his defence in DCCJ 3996/2011 and said he was in fact not the tenant of the residential unit and he gave reasons for changing his position regarding the existence of any tenancy with Madam Chan.

5.The action by Madam Shi against Numeric City went before Deputy District Judge Wong who heard evidence from, inter alia, Mr Lau.  In his judgment dated 30 July 2015, the learned deputy judge at paragraph 63 set out in detail his analysis of Mr Lau’s evidence given in the action before him, as well as those given in the previous actions, including that Mr Lau gave in DCCJ 2647/2012, and found Mr Lau’s evidence in the case before him to the inconsistent in a material way with his defence filed in the previous actions.

6.In no less than seven subparagraphs, the learned deputy judge analysed the evidence before coming to the conclusion that,in Chinese, at paragraph 64: “很明顯，劉的證供有很多自相矛盾及不合常理、邏輯之處。即使原告人的大侓師亦同意，劉的口供未能與書面證供互相佐證”.

7.The learned judge went on at paragraph 68 to conclude that, again in Chinese: “仔細考慮原告人劉”, that is, Mr Lau, “及李”, another witness, “的證供，本席裁定他（她）”, again, “他們全部不是誠實可靠的證人，他（她）們的證供不可信及不可靠。劉在多次給予法庭答辯並簽署屬實的文件中互相矛盾。他一方面承認自己是租客（DCCJ 3996/2011 及 DCCJ 2647/2012) ，但又在本案否認。他的證供充斥著謊言。本席拒絕接受他（她）們的證供。”.

8.It is pertinent to note also the learned judge’s remark at paragraph 83 of his judgment: “本席同意被告人的陳述，劉在多次給予法庭簽署屬實的文件中互相矛盾，可能觸犯刑責。若要採取行動，被告人應根據區域法院第41A號命令第9條規則提出。”.

9.Naturally, the learned judge found in favour of the defendant and against Madam Shi in that action.

10.The aftermath of that civil trial is the present application by the plaintiff against Mr Lau. Obviously, in light of the learned deputy judge’s remark at paragraph 83 of his judgment and the grounds of the application as amplified by Mr Cheung, counsel for the plaintiff, is that Mr Lau in the two statements he made on different occasions, namely, the defence in the previous action and the witness statement he made in the action before the learned deputy judge are inconsistent with each other.

11.Mr Cheung put forward the proposition that given the fact that the two statements are inconsistent, that is, on the one hand Mr Lau said he was a tenant; on the other he denied that he was a tenant in relation to the same residential unit.  So, Mr Cheung submits, one of the statements must be false.

12.Mr Cheung goes on to rely on the finding made by the learned deputy judge that the witness statements Mr Lau gave in the action before him was false.

13.In the circumstances, Mr Cheung submits this court is in a position to come to a finding beyond reasonable doubt that Mr Lau had made or had in fact made a false statement before the civil court and therefore should be committed for contempt of court.

14.Mr Cheung emphasised the purpose of Order 41A rule 9, that is, to discourage people from making false statements in civil proceedings. 

15.I should add that Mr Cheung’s proposition, that is, when two statements are inconsistent with each other one must be false, Mr Cheung’s proposition has this rider, that is, absent good explanation, one of the statements must be false. And Mr Cheung goes on to rely on the learned deputy judge’s findings to support the present application.  In particular, Mr Cheung invites me to consider the learned deputy judge’s analysis which I have referred to (that is the seven subparagraphs) in coming to a decision on the present application.

16.This application is of course opposed by Mr Lau.  Mr Siu, counsel for Mr Lau, submits that it is not sufficient for the plaintiff to simply rely on the proposition that one of the two inconsistent statements of Mr Lau must be false.  Mr Siu submits that the plaintiff must prove beyond reasonable doubt that the witness statements Mr Lau gave in DCCJ 1347/2013 is false.  That is to say, Mr Cheung’s proposition per se is insufficient.  There must be something else on which the plaintiff can rely to prove Mr Lau’s statement to be false.

17.Mr Siu highlights the fact that the plaintiff in the present application is simply relying on the judgment of the learned deputy judge in DCCJ 1347/2013 which was made on balance of probabilities.

18.In this connection, Mr Siu fairly accepts that in his judgment the learned deputy judge did not mention the standard of proof applied in his finding and in coming to his conclusion that Mr Lau’s evidence was to be disbelieved.  That said, I believe it is beyond dispute that the court in DCCJ 1347/2013 must have applied the civil standard of proof in coming to the finding as the learned deputy judge did there.  In any event, I am not aware of the court there having ever said it was satisfied beyond reasonable doubt that Mr Lau had made a false statement in the action before him or before Deputy Judge Wong.

19.Therefore, Mr Siu submits, putting the plaintiff’s case to the highest, it is no more than saying that it is likely that the witness statements of Mr Lau is false and thereforefails to meet the necessary standard for committal purposes.

20.In addition, Mr Siu has sought to argue before me that the plaintiff in obtaining the leave of this court for commencing the present proceedings had committed an act of material non-disclosure in the leave application.  However, as the defendant, or Mr Lau, has not filed any evidence before me, I am unable to allow Mr Siu to pursue this line of argument and Mr Siu fairly indicates that he would not be pursuing this line of argument and would be relying on what I have set out in the above in opposition to the application.

Finding

21.In my view, Mr Siu must be right.  The hearing before the learned deputy judge is no doubt a hearing conducted as a civil matter and there is no indication whatsoever that the court there in coming to a finding that Mr Lau’s evidence was to be disbelieved arrived at the conclusion on the criminal standard of “beyond reasonable doubt”.

22.However careful the analysis of the learned deputy judge may be, and I would say with respect that the learned deputy judge’s analysis has much to be commended, the position, however, remains that the conclusion was arrived at on the civil standard of proof.  Mr Cheung says on the evidence before me this court should be able to come to a finding beyond reasonable doubt that Mr Lau had made a false statement in DCCJ 1347/2013.  With respect, this cannot be right.

23.I have carefully considered the transcript of Mr Lau’s evidence given before the learned deputy judge.  I have also read and I am fully aware of what Mr Lau had said in the defence filed in the previous actions.  Clearly, Mr Lau had given inconsistent statements on different occasions and he was disbelieved by a civil court subsequently.  But this is something that happens in many civil trials.  If a civil court is in a position to elevate a conclusion reached on a civil standard to one that can only be arrived at using the criminal standard of proof, then as Mr Siu submits there must be something else.

24.In the present case, that “something else”), in my view, is missing.  Look at the transcript for instance.  On no less than two occasions the learned deputy judge reminded Mr Lau, when the latter was being cross-examined by the plaintiff’s counsel, that he had a right to remain silent in face of questions that may be inviting answers that would incriminate Mr Lau himself.  On at least several occasions, as can be seen on from the transcript, Mr Lau did exercise his right to silence during cross-examination.

25.For instance, at 332 of bundle of transcripts there are these questions and answers in excerpt:“問：究竟邊一個版本先係真㗎？你係私贈比高麗娟定係你交租比陳錦芳？喺你抗辯裏面邊個版本先係真㗎？”  Subsequently, Mr Lau answered, “私贈係真嘅”.  This was followed by another question:“即係你喺抗辯書裏面講話係租金係假嘅?”  Mr Lau answered, “亦都唔係假嘅”.  Counsel asked, or rather, persisted with his questioning and Mr Lau gave this answer:“抗辯書係講租金”.  Counsel asked, or rather put to Mr Lau in this way:“係，呢個唔係真確嘅，唔係租金嚟嘅。好簡單之嘛，你抗辯書講咗租金，你講咗話係私贈就唔係租金喇，係唔係呀”.  There was no audible answer from Mr Lau for a while before he categorically said, “唔回答呢個問題”.

26.To put it simply, on the basis of the evidence before me, even though if I were the trial judge in the civil matter before the learned deputy judge, I might have come to the same conclusion for the reasons put forward by the learned deputy judge.  Still, I would very much be applying the civil standard of proof and would never be able to be satisfied beyond reasonable doubt that Mr Lau was in fact making a false statement before this court.

27.I should add that in relation to Mr Cheung’s proposition, that is when someone gives two statements that are inconsistent with each other, one of them must be false absent good explanation.  I am not entirely sure this is a universal truth.  I cannot exclude any possibilities that inconsistent statements can be both true or even both false.  But I do not have to make any ruling on this proposition as Mr Siu rightly points out that for the present purposes the plaintiff has the burden of proving beyond reasonable doubt that Mr Lau had made a false statement in DCCJ 1437/2013, and I conclude that the plaintiff has failed so to do. 

28.The plaintiff’s application must therefore be dismissed with costs and I am granting a certificate for counsel.

(Submissions on costs)

29.This being a summary assessment of costs and the court on authorities can take a global view of this matter rather than going into the nitty-gritties of the individual items of costs. In my view, given actually what I have said, that is, there will be counsel’s certificate, I take the view that this matter should attract no more than $23,000, and this is the global sum I am prepared to award to the defendant as the defendant’s costs in this application.

30.So my order would be, first, the application be dismissed; and the plaintiff do pay the defendant his costs summarily assessed at $23,000 and payable forthwith.

Mr Earnest Cheung, instructed by Ho & Tam, for the applicant

Mr Patrick Siu, instructed by Y H Yeung and Associates, for the respondent