Chen Mei Lan and Another v. The Registrar of Companies and Others

HCMP 894/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 894 OF 2015

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D E C I S I O N

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Summons to expunge evidence

1.The 3^rd, 4^th and 5^th Defendants seek to expunge a Mainland Chinese judgment (“the Judgment”) from the trial bundles on the ground that it is irrelevant and inadmissible as a matter of law.  The Judgment shows that D3 has been convicted of Illegal Collection of Public Deposits and was sentenced to 7 years’ imprisonment.  The Plaintiffs intend to rely on some admissions of D3 recorded in the Judgment (“the admissions”).

Legal principles

2.A document should only be adduced if it is relevant to the issues before the court. 

3.A previous criminal conviction is inadmissible as evidence in subsequent civil proceedings: Hollington v F. Hewthorn & Co. Ltd [1943] K.B. 587.  This rule extends not only to convictions but also judgments as they are opinions of another court (at pg 596).

4.This rule was partially abrogated by s.62 of Evidence Ordinance (Cap 8) which provides that past convictions before a Hong Kong court are admissible in civil proceedings subject to certain conditions.   There are also pleading requirements to be fulfilled before the conviction can be adduced: Order 18, rule 7A(1) of the Rules of the High Court, Cap 4A.

5.In Pacific Electric Wire & Cable Company Limited v Gold Global Limited & Ors, HCCL 17/2009, 9 November 2010), §17, Master de Souza correctly decided that Hollington v Hewthorn still applies to exclude foreign convictions. 

6.Mr Kenneth Lam, counsel for the Plaintiffs, relies on the following passages in Phipson on Evidence (18^th Edition), §§43-02 & 43‑85:

“Judgments being public transactions of a solemn nature are presumed to be faithfully recorded. Every judgment is, therefore, conclusive evidence for or against all persons (whether parties, privies or strangers) of its own existence, date and legal effect [citing Hollington v Hewthorn], as distinguished from the accuracy of the decision rendered. In other words, the law attributes unerring verity to the substantive, as opposed to the judicial, portions of the record...

So, judgments are admissible in this connection when they are tendered to contradict a witness...

... A record is also sometimes received in favour of a stranger against one of the parties, as an admission by such party in a judicial proceeding, with respect to a certain fact.  This is no real exception, however... since the record is not received as a judgment conclusively establishing the fact, but merely as a declaration by the party which is prima facie evidence thereof; it belongs therefore to the subject of admissions rather than judgments...”

7.With respect, Phipson does not purport to challenge the validity of Hollington v Hewthorn. The passages cited (in fact that chapter in Phipson) is not discussing foreign convictions or judgments.

Application of the legal principles

8.Ms Rachel Lam, counsel for the 3^rd, 4^th and 5^th Defendants, accepts that D3 has been sentenced to imprisonment in Mainland China and is not available as a witness.  Beyond that, she (rightly in my view) objects to the Judgment being adduced as evidence.  

9.Mr Kenneth Lam explains that the Plaintiffs want to rely on the admissions of D3’s close (or conspiratorial) relationship with a Gu Zhuo Heng (“Gu”) which was contrary to the denial or non-admission position currently taken by D3 in her pleading.  This is relevant to the issue of whether the Plaintiffs’ case on the Trust Arrangement entered into with the involvement of D3 and Gu.

10.Applying Hollington v Hewthorn, I do not think the Plaintiffs should be permitted to do that.  They are in fact relying, not just on the fact of there being admissions recorded in the Judgment but the truth of the admissions.  The admissions were in the context of a conspiracy different from the one in the present case and D3 is not available for cross-examination.  This court knows nothing of the evidence placed before the Mainland Court which led to those passages being recorded as admissions. 

11.Mr Kenneth Lam also points out that this application was late and made after solicitors on both sides have agreed on the contents of the trial bundles.  The summons was heard on day 1 of the trial. 

12.With respect, the Judgment was only disclosed to the Defendants on 13 September 2016.  In 4 weeks’ time and 6 days before trial, this summons was taken out.  I do not think there could be complaint of delay against the Defendants.  In any event, having regard to my decision based on established principles, I do not think any delay should bar the Defendants from making this application.

13.I therefore grant leave to expunge the Judgment. I thank counsel for their assistance. I will deal with costs at the end of the trial.

Mr Kenneth Lam and Ms Melinda Chiang, instructed by Tsang, Chan & Woo, for the plaintiffs

Ms Rachel Lam and Mr Joseph Wong, instructed by Wong & Lawyers, for the 3^rd, 4^th and 5^th defendants