Cwg v. Mh and Others

HCMP 643/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 643 OF 2012

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D E C I S I O N

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Introduction

1.This court gave the Main Judgment on the Wife’s Part IIA application for financial relief in March 2013, after a long trial.  I shall continue to use the abbreviations in the Main Judgment unless otherwise indicated.

2.The Husband’s appeal against the Main Judgment was dismissed, save to a limited extent, by a judgment of the Court of Appeal handed down at the end of June earlier this year (“CA Judgment”).  The Wife’s appeal was also dismissed.  R2’s appeal was earlier dismissed based on the Hadkinson principles.

3.The present application was issued by the Wife in July 2013 after the Main Judgment, to seek leave from this court to produce and use various documents adduced during the main trial (“Summons”).  The Summons was later adjourned by consent pending the determination of the appeals and has now been restored for hearing before this court.

4.Prior to this hearing, there were certain concessions by the Husband, leaving only the dispute over those documents set out in Paragraph 3 of the Summons.  Those documents in Paragraph 3 were referred to respectively “Schedule 1 Documents”, “Schedule 2 Documents”, and “Browne’s Report”.  At the hearing, it was clarified by the Wife that she was only seeking leave to produce and use part of the Schedule 1 Documents and not the Schedule 2 Documents.

5.The documents sought by the Wife in Schedule 1 consisted of  (i) copies of 15 Offshore Minutes, (ii) copies of 4 P/As (namely respectively, the 2^nd, 3^rd , 4^th and 5^th P/A”)[1] (collectively “Schedule 1 Documents”), and (iii) a handwriting expert report prepared by the expert Mr Bowne instructed by the Wife, namely Browne’s Report. 

6.The Schedule 1 Documents and Browne’s Report were the subject matter of applications made by the Wife in the midst of the main trial.  The Wife had applied on 16 October 2012 to exclude the Schedule 1 Documents produced by the Husband, on the ground that they were originally produced in R2’s affirmations which were not admitted due to her failure to attend for cross examination.  The Wife’s application was not allowed.  She then applied for an order for the Husband and/or R2 to produce the originals of the Schedule 1 Documents for inspection and for leave to adduce Browne’s Report.  These applications were also not allowed.  This court had handed down a ruling on 14 November 2012 in relation to the Wife’s applications (“2nd Ruling”).

7.The Wife challenges the authenticity of those copies of the Schedule 1 Documents and the sole purpose of W’s present application is for W to use copies of the Schedule 1 Documents and Browne’s Report by passing them to the Hong Kong Police to commence and conduct such investigation as the Police sees fit.

8.Ms Audrey Eu SC and Mr Chan Hei Ching appeared for the Wife and Mr CY Li SC appeared for both the Husband and R2.  R3’s attendance was excused.

Brief Background

9.The background to this case had been set out in the Main Judgment, which I will not repeat.  The history of the production of the Schedule 1 Documents had also been set out in the 2^nd Ruling.

10.The 15 Offshore Minutes were minutes of shareholders’ meetings of respectively 3 Offshore Companies, AC Oversea (BVI), WS (BVI), and SBI (Bahamas), purportedly held in June 1997, July 2001, April 2010 and signed by R2.  As for the 4 P/As, they were the 2^nd P/A (a General P/A) signed by R2 on 4 June 2002, the 3^rd PA (a Special P/A) and a 4^th PA (a General P/A) both signed by R2 on 29 March 2012, and the final 5^th P/A (a General PA) on 8 June 2012.

11.This court did not find at the time of the 2^nd Ruling that the Wife had adduced evidence of a sufficient cogency to raise a prima facie case on the authenticity of R2’s signatures on the Schedule 1 Documents.   This was, however, at a time when the Husband had just started to give evidence at the trial[2], and further prior to Mr Seeger (R2’s attorney under the 4 P/As who had filed an affirmation opposing the Wife’s then applications), or Ms Lo (the accounts clerk), or Mr Au (the driver) giving evidence.  Ms Lo and Mr Au were witnesses to R2’s signature on the 3^rd and 4^th P/As.

12.As pointed out in the Main Judgment, generally speaking, this court found that Mr Seeger was an evasive witness, and further Ms Lo’s evidence was confusing and not reliable.  This court had also found the Husband’s evidence unreliable and was inconsistent in some respects, and in some others, he was “extremely economical with the truth.”

13.In particular, I found that Mr Seeger was vague and evasive as to when copies of the Offshore Minutes came to his possession, or how.  This court’s finding was that the corporate documents in relation to the 3 Offshore Companies were produced on a selective basis and that the Husband had not provided full and frank disclosure of the ultimate beneficial ownership of those companies.  This court then drew adverse inferences against the Husband and R2 and found that they both held beneficial interest in the 3 Offshore Companies, and that the Husband’s beneficial interest therein was no less than 50%.

14.The Schedule 1 Documents were produced by the Husband and Mr Seeger.  Browne’s Report was produced by the Wife.  The Wife did not seek leave of court to use/produce copies of the Schedule 1 Documents to Mr Browne for examination, and thus in the Summons, she had also sought leave for the release of Browne’s Report as it contained references to the Schedule 1 Documents.

15.Prior to the present hearing, the Husband’s solicitors had sent  a letter on 3 August 2016 to indicate that the Husband made no submissions on Paragraph 3 as those Schedule 1 Documents sought were discovered against/disclosed by R2[3].  They later wrote a letter on 18 August 2016 to say that the Husband had made a mistake, as the Schedule 1 Documents were disclosed by him who obtained the copies from R2.  At the hearing, R1 basically adopted the arguments of R2 in opposing W’s present application.

General Principles

16.At s start, Order 24 r 14A of the RHC provides that:

“Any undertaking, whether express or implied, not to use a document for any purposes other than those of the proceedings in which it is disclosed shall cease to apply to such document after it has been read to or by the Court, or referred to, in open court, unless the Court for special reasons has otherwise ordered on the application of a party or of the person to whom the document belongs.”

17.Generally, as stated in paragraph 24/14A/1 of the RHC, a party who obtains discovery may use the documents disclosed to him only for the proper purposes of conducting his own case, and there is an implied undertaking by him not to use them for any collateral or ulterior purpose; any misuse of the documents may be restrained by injunction or punished as a contempt.  Further, leave to use the documents notwithstanding the undertaking is discretionary and the discretion will be exercised cautiously so as not to undermine the effect of the undertaking.  In exercising its discretion, the court may consider a number of factors, including the nature of the document, the nature of the information in the document, any prejudice the author of the document may sustain, and the likely contribution of the document to achieving justice in the second proceedings.

18.In Secretary for Justice v Florence Tsang Chiu Wing (2014) 17 HKCFAR 739, which arose out of ancillary relief proceedings in which the wife claimed that a fraudulent transaction had taken place between the husband and his father to defeat her claim for financial provision.  The ancillary relief trial judge had directed a copy of his judgment to be forwarded to the Director of Public Prosecutions, who then applied to be given access to the relevant documents disclosed during the trial in aid of a criminal investigation.

19.The judge who heard the application held that the husband and his father could not claim legal professional privilege (LPP) in relation to some of the documents sought as they fell within the “crime-fraud exceptions” rule, and further allowed the wife to be released from her implied undertaking in relation to the relevant documents for the purpose of disclosure to the Secretary of Justice and the police.

20.The order granted the Secretary of Justice access to the documents was set aside by the Court of Appeal on the ground that the Director of Public Prosecutions had to himself establish the applicability of the “crime-fraud exceptions” rule before obtaining access, and remitted the question of LPP to the Court of First Instance for determination.  The Court of Appeal, however, upheld the release of the wife from her implied undertaking. 

21.The husband’s and his father’s appeal was later allowed by the Court of Final Appeal, which held that as the issue of whether the documents sought were protected by the LPP had not yet been determined, it would be wrong in principle to release the wife from her implied undertaking.

22.It has been held in Secretary for Justice v Florence Tsang Chiu Wing (2014) 17 HKCFAR 739, among other things, that[4]:

“A party who obtained documents on discovery gave an implied undertaking to the court that he would make use of them only for the purpose of that action and no other purpose. Where release from the undertaking is sought, it was for the person who obtained the documents to demonstrate cogent and persuasive reasons why it should be released. Each case turns on its own facts and no general principle can be formulated beyond stating that the court will not released or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery.”

23.Ms Eu had also referred to Re NDT (BVI) Trading Ltd (No 2) [2009] 5 HKLRD 615, in which the plaintiffs who were petitioners in winding up proceedings against the company NDT, applied for leave under O 24 r 14A of the RHC for leave to use certain documents disclosed by NDT in winding up proceedings to, among other things, lodge a criminal complaint of perjury against two persons who were defendants in another guarantee action.

24.Kwan JA had the following to say[5]:

“7. Leave of the court is required before reporting any wrongdoings revealed by documents disclosed on discovery to the appropriate authorities (Matthews and Malek, Disclosure 2^nd ed, 2000, para 13.21). It is a balancing exercise whether what is sought to be achieved by relaxing the implied undertaking is more important for the administration of justice generally, such as in discouraging and punishing false evidence, than in maintaining confidentiality so as not to operate as a disincentive to full and frank discovery.

8. In A v A (Ancillary Relief) [2000] 1 FLR 701 at pp 746H-747A, whilst acknowledging the public interest in full and frank disclosure on discovery, Charles J stated that if a court is satisfied there had been illegal or unlawful conduct which it had no power to deal with itself, it should generally report the relevant material to the relevant public authority. In Marlwood Commercial Inc v Kozeny [2005] 1 WLR 104 at para 52, the English Court of Appeal stated that in the absence of any other factors argued to constitute some injustice, the public interest in the investigation or prosecution of serious fraud should take precedence over the general concern of courts to control the collateral use of compulsorily disclosed documents. It was reasoned that the court’s exceptional permission for relaxing the rule against collateral use in cases of serious fraud in the international context does not give cause for thinking that proper disclosure in the general run of cases will be undermined.  See also Capital Television Group v Northern Rivers Television Pty Limited [1995] NSWSC 75 at para 10.”

25.Kwan JA found that there were special reasons in Re NDT for relaxing the implied undertaking, in that there were stark contradictions between the disclosed documents, namely witness statements and affirmations and the Court found it appropriate for the relevant authorities to investigate the complaints of perjury.

26.There was no real dispute on the general principles and I turn to the facts of the present case.

The evidence

27.The Summons was supported by the Wife’s 54^th affirmation. R1’s case was supported by his 35^th affirmation and Mr Seeger’s 2^nd affirmation.

28.R2 has not filed any affirmation in opposition.

R2’s position

29.It was submitted by Ms Eu that R2 had no right to be heard in respect of the Summons as she was/is subject to the Hadkinson principle and has not yet purged her contempt and that she has still not complied in full with the Discovery Order.

30.However, notwithstanding the Hadkinson Order made by this court on 2 August 2013, the Wife had on 3 September 2013 consented to an order for R2 to file evidence in opposition to the Summons[6].  There was no indication that at that time the Wife had objected to R2 being heard on the Summons.  Then more recently, after the Summons had been restored for hearing and notwithstanding further Hadkinson Orders had by then been made by the Court of Appeal and this court since the issue of the Summons, the Wife’s solicitors had sent two letters to R2’s solicitors in August 2016 asking them to clarify R2’s stance as to the Summons[7].  In neither letter did the Wife object to R2 being heard.

31.Mr Li submitted that the present application was not on any issue to be decided in the main proceedings or on appeal therefrom and therefore the Hadkinson Order/s should not apply to the present application by the Wife.  Further, even if the Hadkinson Order/s should apply, this court should exercise its discretion to allow R2 to be heard.

32.Having considered the Wife’s own somewhat inconsistent stance in relation to R2, and as the result of the Summons may lead to a criminal investigation, I am prepared to exercise my discretion on this occasion and to allow R2 to be heard on the Summons, despite the Hadkinson Order/s and R2 still not having complied with the Disclosure Order.

The Wife’s reasons for her application

33.The basis of the Wife’s application was that she suspected that R2’s signatures were forged, or the Schedule 1 Documents were false documents in that they had been signed recently and back-dated, or vice versa, to give readers the wrong impression that they were contemporaneous documentary evidence of their contents[8].   

34.First of all, it was only in the Wife’s 51^st affirmation, when she alleged that the Husband had asked her to sign on pieces of blank paper in about 1990’s and thereafter used her signatures on documents she had never seen, and her allegation appeared to be that R2 had also been asked to sign in the same manner, namely on undated blank pieces of paper.  The Wife’s 51^st affirmation was filed after her oral evidence had completed and for the purpose of supporting her applications for leave to produce Browne’s Report.  This was the first time that the Wife made such an allegation.

35.The Wife had referred to a transcript of an exchange between her then Counsel and that the court during the hearing of the Wife’s applications for inspection of the originals and for leave to file Browne’s Report, and that this court had remarked that it would not go into investigating whether there was forgery or not, and that if the Wife suspected that there was forgery of the Schedule 1 Documents, then she should go to the police (“Remark”).

36.The Remark was not intended as an indication from this court that the Wife should make a report to the police, and this court was only pointing out to the Wife that if she suspected forgery, she could make a report to the police.  Further, as pointed out by Mr Li, the Remark did not indicate any sanction or waiver of the Wife’s implied undertaking as to the use of the Schedule 1 Documents.

37.Ms Eu submitted on behalf of the Wife that there are cogent and persuasive reasons to relax or release the implied undertaking, based on public interest, namely:

(i) There is public interest in upholding the integrity of the administration of justice by defending against any attempt to pervert the course of justice by perjury in court proceedings and by the production of false documentary evidence by affidavit evidences;

(ii) There is public interest in facilitating the reporting of crime; and

(iii) There is public interest in the proper investigation of suspected crime.

38.As seen from Ms Eu’s submissions, the Wife relied on (i) the findings of this court in the Main Judgment and (ii) Browne’s Report.

The findings of this court

39.There was no finding by this court that the Offshore Minutes were forged and this had further been pointed out  and confirmed by the Court of Appeal[9].

40.It is, however, not necessary for there to be an actual finding of forgery.  In Anite Telecoms Limited and World Best Cargo-Ling Company Limited HCA 2560/2013, 19.10.15 (unreported), all this court found was that there was a prima facie case of a serious fraud in Hong Kong. Further, in Re NDT, Kwan JA allowed the release of the documents upon being satisfied that there was a prima facie case that the documents would appear to contradict parts of the witness statement and affirmations of the two deponents concerned.

41.What this court did find in the Main Judgment in relation to the Offshore Minutes were, among other things, as follows:

(i) The Offshore Minutes (and the 4 P/As) were produced by Mr Seeger on behalf of R2, and this court found that Mr Seeger’s evidence ‘vague and evasive’;

(ii) None of the Offshore Minutes produced by Mr Seeger had been certified as true copies by the registered agents of the 3 Offshore Companies, if all original executed minutes were sent to the registered agents;

(iii) There was no independent confirmation from the registered agents for the 3 Offshore Companies that those corporate documents produced by Mr Seeger formed the complete record of all the information in the files kept by the registered agents;

(iv) There were crucial discrepancies and missing links in the corporate documents of the Offshore Companies;

(v) It was strange that R2’s request for information were not complied with if R2 was indeed the sole ultimate beneficial owner of the Offshore Companies.  R2’s solicitors had written on behalf of R2 to the registered agents in November 2012 asking for, among others, the originals of the Offshore Minutes, and OIL (Bahamas) replied to say they regret to advise they were unable to comply with the requests for information, and there was no reply from OIL (BVI) at all;

(vi) The corporate documents in relation to the 3 Offshore Companies were produced on a selective basis and that they did not represent all the documents filed with the registered agents since the acquisition of those companies;

(vii) The Husband had adopted a “catch me if you can” attitude.

42.The above findings were in relation to the Offshore Companies and the Offshore Minutes.  There were no findings in relation to the 4 P/As drawn to this court’s attention.

43.In his 2^nd affidavit filed on behalf of the Husband to oppose the Summons, Mr Seeger had gone to great lengths to argue against this court’s findings against him in the Main Judgment in relation to the Offshore Minutes and to explain his evidence during the trial.

44.Mr Seeger had complained that this court’s findings against him were, among other things, “unfair and unfounded”.  Suffice to say, this court’s findings against him had not been disturbed by the Court of Appeal. 

The latest evidence

45.One of the matters Mr Seeger had sought to explain in his latest affidavit was the inconsistency in his answers as to when he saw the originals of the Offshore Minutes.  He tried to explain that the inconsistency in his answers was due to his confusion over whether the question asked of him by the Wife’s then Counsel Mr Chow referred to the “originals … which were sent … from Hong Kong” or “original copy(s)… obtained from OIL (BVI) or OIL(Bahamas)”[10].  

46.However, according to the transcript produced by Mr Seeger, the question asked was quite clear, namely whether he had ever kept those documents or had he ever been in possession of the originals of those documents[11].  In his latest affidavit, Mr Seeger claimed there were interruptions caused by exchanges between counsel and/or the court regarding the questions and/or the volume of the speaker which made the hearing of the questions difficult.

47.In my view, if this was indeed the case, Mr Seeger could have clarified the question before answering it, particularly when he himself is an experienced lawyer for some 35 years.  Instead, his answer at the trial was clearly “I have seen these documents before.  I believe we – we obtained them from OIL.  That’s my recollection”[12].

48.In the Judgment, I said I had found it odd that Mr Seeger did not seem to even remember where the documents came from even though he produced them, and my comment was based on his own answer at the trial that he believed they came from OIL.  

49.In so far as I can see from the transcript, neither R2’s Counsel Mr Li nor Mr Chow, or anyone else at the trial had referred to the expression “original copies”.  Whether Mr Seeger was under the impression that he was being asked about “original copies” of the documents instead of “originals” or not, his answer was vague and evasive in that he only believed the documents came from OIL, and could not even say for sure where they came from when it was he who produced them around October 2012.

50.In any event, it would appear Mr Li did not ask Mr Seeger on re-examination to clarify his answer.  In fact, earlier on in answer to Mr Li’s questions during examination in chief, when being asked where he obtained those corporate documents of the 3 Offshore Companies (including the Offshore Minutes) in the trial bundles and supplied by him, Mr Seeger’s answer was the documents came from either Hong Kong or from OIL[13]. 

51.In answer to Mr Li’s further question as to whether he remembered having received the 27 June 1997 minute referred to by Mr Li in the trial bundle around that time or later, he had said he could not recall what happened in 1997, but went on to confirm that he did not receive the Offshore Minute very lately around, say 2012 and that after he received them, he kept a copy and sent one to the OIL[14].    

52.It was vague answers such as the above answers which led the court to say it was not clear when at or how the copies of the Offshore Minutes came to his possession.  Mr Seeger’s latest explanations in fact confirmed this court’s finding that he was vague and evasive.  Further, notwithstanding his latest explanations, as pointed by Ms Eu, the “provenance” of those corporate documents supplied by him, including the 15 Offshore Minutes, is still not clear.  If they or some of them went to him from Hong Kong, then why were they not produced by R2 directly, rather than via a circular route round the world.

53.I also find Mr Seeger’s latest explanations have raised even more questions.  As I have said, neither Mr Li nor Mr Chow had used the expression “original copies” in their questions.  It is also not quite clear whether the so called “original copies received from OIL” were the same as those copies which he kept upon receipt of the Offshore Minutes from Hong Kong.

54.In any event, whether the question asked by Mr Chow referred to “originals” or “original copies”, more importantly, if according to Mr Seeger, the originals of the 15 Offshore Minutes were sent to OIL, up until now, there has been no explanation from OIL as to why the requests from R2’s solicitors for the originals of the Offshore Minutes and other information in November 2012 were not complied with and/or ignored.

55.Mr Li submitted that Mr Seeger “fortified his position” in his latest affidavit by stating that he had written to OIL BVI/Bahamas and archive companies for the complete historical records of the Offshore Companies.  As this court had already found Mr Seeger to be vague and evasive, one would have thought the way to “fortify his position” would be to obtain independent evidence and confirmation from OIL BVI/Bahamas to confirm that all the originals of the 15 Offshore Minutes were received by OIL at around the time of the dates stated thereon.  This has not been done.

56.Further, as I have said, one of the key issues in the main trial is the beneficial ownership of the 3 Offshore Companies.  If R2 was/is indeed the sole ultimate beneficial owner, all Mr Seeger needed to do, as R2’s attorney, is to obtain independent confirmation and documentary evidence from OIL, and produce them in his latest affirmation, rather than to take issues with this court’s various findings.

57.R2 had made a statutory declaration on 7 August 2013 before a solicitor confirming that she had signed the Offshore Minutes “at the dates and time as specified or appeared on the said documents” and she “was and am conversant with the nature and contents of the said documents”[15] (“Statutory Declaration”).

58.I do not understand why R2 would choose to make the Statutory Declaration instead of filing a proper affirmation in this application to oppose the Summons, which she was given leave to do.  Further, the Statutory Declaration was not produced by her but by the Husband in his 35^th affirmation. 

59.The Offshore Minutes were originally produced by R2 in her affirmations in the main trial but were not admitted since she failed to attend the trial for cross examination.  R2 had produced them in her affirmations as purportedly signed by her on the dates stated therein as evidence to support her allegation of being the sole beneficial owner of the 3 Offshore Companies.  The Statutory Declaration was no more than confirming R2’s position at the time of the trial as seen in the 2^nd Ruling[16].  As what R2 had said and produced in her then affirmations could not be tested at the trial, I am of the view that no weight should now be given to the Statutory Declaration. 

60.The Husband had said in his affirmation that the Offshore Minutes were true copies of the originals as duly executed on the dates specified therein[17].  However, he did not explain how he could confirm this or the basis of his confirmation.  He gave no information as to when he saw or last saw the originals or any confirmation as to the present whereabouts of the originals. 

61.Again as I have said earlier, if the originals of the Offshore Minutes indeed been sent to OIL, OIL should be able to confirm the respective date/s of receipt/s of the originals.  Even if only copies were sent to OIL, OIL should be able to confirm the respective date/s of receipt/s, which may help to dispel the Wife’s suspicion that the Offshore Minutes were not contemporaneous documents, in that they were not signed on the dates stated thereon or sent to OIL on about the dates stated thereon.  Or, as Ms Eu had submitted, the Husband/R2 could have simply produced the originals of the 15 Offshore Minutes at the hearing.

62.Having considered the evidence filed by the Husband and Mr Seeger in opposition to the Summons, I am of the view that their latest evidence indicated further evasiveness, which would only add further to the Wife’s suspicion.

Browne’s Report

63.The Wife’s handwriting expert Mr Browne had examined the signatures of R2 on the Offshore Minutes and the 4 P/As.  The conclusion of Mr Browne was that there was strong evidence that none of the questioned signatures were written in 2010 or 2012 and there was moderate evidence to suggest that all the questioned signatures were not written later than 2001. 

64.Mr Li further submitted that the Browne’s Report did not help the Wife for the following reasons:

(i)   Mr Browne did not examine the actual authorship of the signatures of the questioned documents;

(ii)   Browne’s Report was about the year when the questioned documents were signed by R2, but the report was not reliable as the date when a document was signed may require examination other than handwriting, such as the ‘ink-dating technique’ mentioned by the Husband’s and/or R2’s expert Mr SC Leung.

(iii)   Further, as Mr Browne only examined 10 “controlled signatures” or “reference signatures”, it was unclear on what basis the purported “controlled signatures” were selected.

65.Mr Li had listed out a “plethora of problems” with Browne’s Report.  Mr Li submitted that in fact Mr Browne’s conclusion did not mean that the signatures in 2002, 2010 or 2012 were not signed by R2 and the conclusion in fact confirmed that R2 was indeed the maker of all “questioned signatures”, and further those signatures signed on or before 2001 were indeed genuine.

66.Mr Browne’s finding was based on:

(i) The “questioned signatures” showed they had all appeared to have been fluently written, and evenly and many would seem to have been written in one sitting;

(ii) The “controlled signatures” or “reference signatures” however displayed significant variation over the years;

(iii) According to Dr Tse Tak Fu’s letters dated 28 September 2012 and 5 October 2012, the author of the “controlled signatures”, who would be 90 years old in 2013, had been suffering from “long standing hypertension and heart disease, old age, fragility and senility amongst other disease” and it was certainly noticeable that the signatures had deteriorated from 2009 onwards, but the later signatures had been written with greater care and thus there was a loss of fluency.

67.The finding of Mr Browne would indicate that if the signatures on the questioned documents of purported dates in 2010 or 2012 were indeed that of R2, they were in fact signed not later than 2001.  In other words, the suggestion was that the author of the questioned signatures signed before 2001 and ‘post-dated’ the documents.

68.Mr Li submitted that this would mean that R2 and/or others was (were) already “planning the forgery” way back more than 10 years ago, and that such a finding or suggestion was absurd.

69.There was no suggestion from the Wife or any one that R2 and/or others were “planning the forgery” more than 10 years ago.  There could be other reasons as to why R2 would sign documents prior to 2001 without dating them if indeed that was what happened.  It was, however, not R2’s case that she pre-signed undated copies of the Offshore Minutes, and the dates were inserted later with her knowledge and consent and/or otherwise authorised by her.  Her case up until now is that the 15 Offshore Minutes were signed by her on the dates stated thereon.

70.On the face of it, the conclusion in the Browne’s Report did indicate there were inconsistencies of the “questioned signatures” with the “controlled signatures”.

Other suspicious circumstances

71.During the hearing, Ms Eu had drawn this court’s attention to the copies of the 15 Offshore Minutes.  As pointed out by Ms Eu, curiously, there is a single black line across the middle at the same place on all 15 copies of the Offshore Minutes, notwithstanding that they were supposedly signed at different times in 1997, 2001 and 2010.  Further, more importantly, the heading of the minutes under the name of each of the 3 Offshore Companies all appeared to be typed in a different font from the rest of the minute.  All these again added to the Wife’s suspicion.  The above observation was however only raised be Ms Eu during her reply submissions and there was no opportunity for the Husband and/or R2 to file any further evidence in response thereto.  I will not take these observations by Ms Eu into consideration. 

The 4 P/As

72.The Wife’s affirmation in support of Paragraph 3 of the Summons was mainly in relation to the 15 Offshore Minutes.  Browne’s Report had however included R2’s signatures on the 4 P/As.

73.Ms Eu had pointed out that notwithstanding the 4 P/As being some 10 years apart, the signatures of R2 all looked suspiciously similar, and they all appeared to be “cut and paste”.  The originals of the 4 P/As, were shown to the court on the screen when Mr Seeger was giving evidence by video link.

74.Those parts of the transcript relating to Ms Lo’s evidence and Mr Au’s evidence in relation to the signing of the 4 P/As were not referred to this court at the present hearing, nor was this court’s finding, if any, in the Main Judgment.

75.However, the “questioned signatures” in Browne’s Report had included R2’s signatures on the 4 P/As, and any release of the Browne Report, should in my view, also include the release of the 4 P/As, so that there be a complete picture.  

Any injustice or prejudice to the Husband and/or R2

76.As pointed out by Ms Eu, the Offshore Minutes and the 4 P/As contained no commercially sensitive information and related to matters that occurred sometime ago, and it is up to the Police to conduct any investigation if it sees fit. 

77.I agree it is really up to the Police to decide what to do with the documents and whether to conduct any investigation, after being provided with them.  This court is not going to direct that the Police to investigate.  

78.So far as the Husband’s 35^th affirmation was concerned, he said that the Offshore Companies were set up for purpose of protection of assets and that the release would grossly infringe R2’s rights of privacy and confidentiality.  However, there was no affirmation from R2 and no direct evidence from her of any prejudice or injustice she might suffer as a result of any release.  There was also no sufficient evidence from the Husband as to indicate what prejudice or injustice the Husband would suffer as a result of the release.  There were also no submissions from Mr Li on any privilege against self-incrimination.  Anyway, so far as privacy and confidentiality is concerned, the beneficial ownership of the Offshore Companies was the subject matter of the Husband’s appeal, a matter which had already been heard in open court.

79.In any event, I am satisfied that the public interest clearly outweighs any privacy or confidentiality.

80.The Husband has said if Browne’s Report is to be released by the Wife to the police, it is his belief that all the evidence, including the transcripts may also have to be released to the police in order to give them a full appraisal of all material facts and circumstances for the sake of conducting a fair investigation.  Neither the Husband nor R2 has made a proper application in this regard.  I will consider this matter if and when a proper application has been made if this matter cannot be agreed between the parties, namely what other documents should be released from the parties’ respective implied undertaking as a result of my present order.

Conclusion

81.Having considered all the evidence, the Wife has satisfied this court that there is prima facie evidence that the Offshore Minutes were not signed by R2 on the purported dates stated thereon. The Wife has provided cogent and persuasive reasons on public interest grounds as to why this court should relax or release her from the implied undertaking in respect of the 15 Offshore Minutes, the 4 P/As, and Browne’s Report.  I am prepared to release her from her implied undertaking for the sole purpose of her providing those documents to the Hong Kong Police, for the Hong Kong Police to consider whether to commence any investigation and if so, to conduct such investigation as the Hong Kong Police sees fit.

Order

82.My order is as follows:

(i)   Leave be granted to the Applicant to produce and use the documents being referred to herein as (1) Schedule 1 Documents; and (2) Browne’s Report for the sole purpose of passing the same to the Hong Kong Police and for the Hong Kong Police to consider whether to commence any investigation and if so, to conduct such investigation as the Hong Kong Police sees fit.

83.As for costs, as the Wife has succeeded with her applications, I order that the Husband and/or R2 shall jointly and severally pay the Wife’s costs of and incidental to the Summons, with certificate for two Counsel, and such costs are to be summarily assessed and paid forthwith.  The Wife shall submit her statement of costs within 21 days, and the Husband and/or R2 shall submit their statement of opposition within 14 days thereafter.  This is a costs order nisi which shall be made final after 21 days.

Ms Audrey Eu SC and Mr Chan Hei Ching, instructed by C T Chan & Co, for the applicant

Mr C Y Li SC, instructed by Tso Au Yim & Yeung, for the 1^st respondent

Mr C Y Li SC, instructed by B C Chow & Co, for the 2^nd respondent

Messrs Simon C W Yung, for the 3^rd respondent was excused