Suratwala Rubin Talakchand v. Hameed Moona Assan Abdul Cader t/a Durai Enterprise
Read the full judgment text of HCA 2662/1981 on BabelCite. This High Court CFI judgment.
1. This Cause comes before me by way of a Notice of Motion issued on the 2nd September of this year for an Order that the Plaintiff be at liberty to issue a Writ of Sequestration to sequester all the real and personal property of the two Respondents, K. Yu Sein Trading Company Limited and U. Sein Win, otherwise known as LAM Sang Fai, a director of that company, for several contempts which are set out, first, the wilful disobedience of an Order of Mr. Justice Penlington made on the 25th June, 198
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HCA002662/1981 Practice and procedure: Civil Action: Registry file: use of by trial judge improper. Practice and procedure: Civil Action: Affidavits on file but not put into evidence by parties: Perusal by judge improper save by invitation of Counsel. Judge: Civil Action: duties of: restriction on personal enquiries, personal intervention and personal search through the Registry file. Witness: Judge's duty to observe. Witness: Assessment of credibility: factors governing. Sequestration, Writ of: Burden of proof. Highest civil burden. Civil action: Burden of proof: Quasi-criminal proceedings: Proof beyond reasonable doubt. Practice and procedure: "Filed": use of to be avoided in relation to Summonses and Orders. Practice and procedure: Judgment or Order: "Signed, entered or otherwise perfected" (0. 42 rr. 3 & 5 and 0. 59 r. 4(1)). Use of word "Filed" to be avoided.
----------------- Coram: The Honourable Mr. Justice Jackson-Lipkin in Court Date of Judgment: 18th November, 1981 at 2.30 p.m. Appearances: Mr. Richard Mills-Owens, Mr. John Bleach and Miss Selina Lau for the Plaintiff. Defendant in person. Mr. Pirie for the Respondents. ----------------- JUDGMENT ----------------- 1. This Cause comes before me by way of a Notice of Motion issued on the 2nd September of this year for an Order that the Plaintiff be at liberty to issue a Writ of Sequestration to sequester all the real and personal property of the two Respondents, K. Yu Sein Trading Company Limited and U. Sein Win, otherwise known as LAM Sang Fai, a director of that company, for several contempts which are set out, first, the wilful disobedience of an Order of Mr. Justice Penlington made on the 25th June, 1981, and secondly the breach of an Attachment Order made on the 30th April 1981 by Mr. Registrar Chism. 2. The Action was commenced by a Writ issued on the 28th April by Suratwala Rubin Talakchand, otherwise known as Rubin Talakchand, (who has throughout these proceedings been referred to as "Rubin") as Plaintiff, and Hameed Moona Assan Abdul Cader, trading as Durai Enterprise, (who, throughout these proceedings has been called "Mr. Durai"), as Defendant. 3. On the 9th May a Summons was issued by Messrs. Stevenson, Low & Company, (the back sheet of which bizarrely says that it was "filed" on the 9th May; an utter impossibility, legally and physically, as a Summons issues out of the Registry, and it is not open to anyone to "file" into the Registry something which is issued out of it). It was a Summons under Order 14 rule 1: It came before Mr. Registrar Blackwell on 28th May, when both Plaintiff and Defendant were represented, the Plaintiff by counsel, the Defendant by his solicitor; the solicitor was Mr. Lau of H.H. Lau & Company: I say that because the name was mentioned in the course of certain questions I put to Mr. Hameed towards the close of his evidence. 4. Judgment was pronounced for the Plaintiff against the Defendant in the sum of $1,591,879.05£ with interest at 12½ per cent and there was an Order for costs. That judgment was passed and entered on the 28th May and signed by the Senior Registrar, and, although it was signed, entered or otherwise perfected in accordance with the Hong Kong Rules of the Supreme Court, it is endorsed as having been "filed" on the 20th June, 1981. I trust those semantic mistakes will not recur again at the hands of those solicitors, or of any other solicitors: They could have very serious consequences [see 0. 42 rr. 3 & 5 and 0. 59 r. 4(1)]. 5. The next thing that happened was on the 30th April there was an Order by Mr. Registrar Chism to which I must now refer. That ordered, 6. "that all the Defendant's property", that is, diamonds, precious stones, the full particulars of which are set out in the schedule appended to the Order,
- I think that means "itself" -
That Order was served on K. Yu Sein Trading Company Limited on the same day, the 30th April, and it was endorsed with a Penal Notice. To that Order there has been no intervention and from that Order there has been no appeal. 7. In view of the finding of the Registrar that the stones were in the possession of K. Yu Sein Trading Company Limited, it is somewhat surprising that, when the Order was served on that Company, it did not then intervene and try to get the Order set aside on the ground that there was no or no sufficient evidence for the Registrar to make the Order, for the basis of his Order was that the diamonds and precious stones "now in the possession" of K. Yu Sein Trading Company Limited, be attached. 8. Be that as it may, the matter then came before Mr. Justice Penlington and he made the Order of 25th June. That was passed and entered on the 30th June, and, once again, that ludicrous word "Filed" appears on the back of the Order. However, I must look to the substance of it and it is as follows: 9. "IT IS ORDERED THAT. -
10. I have only three comments to make on that: First, the Order itself is defective in that it does not say that the balance should be repaid to K. Yu Sein Trading Company Limited; secondly, it has never been appealed; and, thirdly, of course, it follows from what I have just said, there has been no intervention. That was served, I have been informed, on the 20th July, 1981, and, from that date to this, there has been no intervention by K. Yu Sein Trading Company Limited, or by any of its directors, to have it set aside. 11. On the 8th July a Writ of Delivery issued out of the Registry, addressed to the Bailiff (in the inexplicable absence of a Sheriff in Hong Kong, which office was held for very many years) ordering him to attend at the premises of K. Yu Sein Trading Company, and ordering K. Yu Sein Trading Company to deliver up to the Bailiff all or so much of the Defendant's property attached by the Attachment Order that I have mentioned; that the Defendant's property be brought into court and sold; and that the proceeds of sale be paid out to the Plaintiff in satisfaction of his claim. The Writ, of course, is also defective in that it does not deal with the balance. 12. Even after that Writ was issued and an attempt was made to enforce it, no intervention by K. Yu Sein Trading Company Limited was attempted. 13. The next thing that happened was the issue of the Notice of Motion on 2nd September, 1981. 14. This Cause came on before me, and it was clear beyond peradventure that, on the face of it, the Motion was improperly constituted, because it sought a Writ of Sequestration against people who were not named in and did not appear on the face of it. 15. Mr. Mills-Owens very properly applied to amend the title because, as entituled, the Notice of Motion, as I say, was defective. At first, there was opposition to that amendment, and then, with great propriety, Mr. Pirie withdrew that objection and I allowed the amendment. As a result this Cause is now corrected entituled as follows:-
16. When Mr. Mills-Owens moved, I had, of course, no papers. All I had was the Notice of Motion. I say that advisedly and deliberately, because, as a Judge of the High Court sitting in a civil matter, and this is a civil matter, I am not entitled in any circumstances to embark upon a search of the Registry file, or even to read the Registry file. There is contained in each Registry file, kept down in the Registry, everything that the parties wish to file, much of which is inadmissible on the trial of the Action, Cause, Matter or Suit. No Judge of the High Court in Hong Kong is a Commissioner in Eyre. Whatever the motives - and I say whatever the motives, for the motives are usually of the best -whatever the motive, whether it be to see that injustice is not done or to see that justice is done, whether it be to "get the feel" or to "get the smell" of the matter, or whether it arises out of mistrust of the Solicitors of this Colony in their preparation of cases, it is not open to me (or indeed to any High Court Judge) to go rummaging through a Registry file before the Hearing to see if he can learn something about the case from that file. I will not go through the reaons why in great depth: Suffice it to say I might well read matters which are inadmissible, and they could perhaps affect my judgment in the case; I might well see the things that I ought not to see; and further, it is a cardinal rule of civil proceedings that a judge shall sit, listen and hearken to the evidence put before him and only to that evidence: See Jones v. National Coal Board(1) at p. 64. In other words, it is a matter entirely for the parties in civil proceedings to decide what evidence they put before the Judge. No other evidence is admissible, whether there are affidavits on the file or not. Until those affidavits are read, they are not in evidence. Until they are put before the judge, they ought not to be looked at. In this respect, I reiterate what was said by Blair-Kerr, J. in Cathay Textile Corporation v. Eastern Zone Industrial Co. Ltd.(2) at p. 145. 17. We started off, therefore, with my having only the Notice of Motion. Due to the good sense of Mr. Mills-Owens, his solicitors worked overnight and produced a Bundle the next day of what he considered to be the relevant documents to be put before me. I say "considered" for this reason. There is a large number of affidavits on the Registry file and Mr. Mills-Owens, not unnaturally, thought that all the affidavits filed in relation to this Motion would in fact be used. It turned out that they were not so used, and should this Cause go any further, I will see that the pages in the Bundle are turned down to indicate to the Court of Appeal that they should not look at those pages, as those pages were never put in evidence. 18. There is one final preliminary matter I should mention and it is this: On 30th October, 1981, Mr. Registrar Wilson made an Order that the Defendant Hameed Moona Assan Abdul Cader attend before me and be orally examined as to whether he has any and what other property or means of satisfying the Judgment. By consent, that Summons was heard at the same time as the Motion. 19. At the outset I was told that there would be two applications: One related to the placing before me of such oral evidence from the Defendant, and originally Mr. Pirie opposed that. I need not go into the reasons why he opposed it: Suffice it to say he considered them sufficient at the time, but later thought better of it and withdrew his application. The second was an application for Security for Costs which was argued before me, and I found in favour of Mr. Pirie's clients and made an Order accordingly. The fact that the Order was subsequently amended by consent is neither here nor there, and it does not affect my judgment in any way. 20. I revert now to the title of the Motion. I appreciate that this is a small Colony, a long, long way from other places, particularly from the source of our law and of our practice. The title of an Action, Cause, Matter or Suit can be important, even in Hong Kong. It can also be remedied. It is rarely fatal. 21. I mention the title here, not because it is a matter of practice; not because it is an irregularity; not because it is one of those things which, when referred to in many cases, can properly be described as an "exercise in pedantry"; I mention it for this reason: The principal witness in this case was Hameed Moona Assan Abdul Cader, and, for the greater part of his evidence, he firmly believed, because of the title on the papers served on him, that he was here to answer for his own debts in respect of the Action originally brought against him. It was not until very near the conclusion of his evidence, that he was made aware that these were not proceedings against him, but that they were proceedings against Mr. Lam and Mr. Lam's Company: That is a factor which weighs greatly with me when assessing the weight of Mr. Hameed's evidence. I say "Hameed" because he was called "Hameed" and "Durai" throughout the hearing, and "Hameed" is an easier way of referring to him than "Durai", which was but a trading name. 22. There are two ways of looking at it: One that his evidence was exculpatory, and, therefore, that it should have little weight: The other was that, as he had no knowledge whatever that this was an action against Mr. Lam and his Company, he could not be considered as "slanting" his evidence in order to "do down" Mr. Lam or Mr. Lam's Company, or to influence me in any way against Mr. Lam or Mr. Lam's Company. Indeed, most of his evidence was directed to the activities of certain gentlemen, who formed what was referred to as "a settlement committee", and who were called "mediators", and to some of his other creditors (all of whom will have to answer in due course for their behaviour to the Attorney General when he considers these papers, which are going to be sent to him). In other words, we have a case here where the title so misled a witness as to make him more truthful than he might otherwise have been. That does not mean to say that he was truthful: I shall come to that in a moment, but it weighs very much in favour of my giving credence to some of his statements, where I might otherwise not have done so, and I stress the word "otherwise". 23. The evidence that I did hear, and the evidence for the Plaintiff that was put before me, was as follows:- 24. The oral evidence of Senior Inspector Paul Edward Foster of the Commercial Crimes Bureau; the oral evidence of the Defendant Mr. Hameed; an Affirmation of the Plaintiff affirmed on 28th August 1981 together with its exhibits; and I will digress for one moment in relation to those exhibits, because two of the exhibits were Affidavits in the self-same proceedings, and I can do no better than to repeat what was recently said by Mr. Justice Walton, reiterating years of directions from judges, that it is quite improper to exhibit affidavits to an affidavit; all that needs to be done is to give Notice of an intention to rely upon them - that appears in the Note 41/9/3 to Order 41 and in Atkin's Court Forms and Precedents. 25. But I must accept that there are the Affidavits exhibited to the Affidavit of the Plaintiff, and I was asked to, and I did, look at those of Mr. Philip Li and of Mr. Ashok Rakyan. 26. That constituted the evidence in support of the Motion. 27. The Notice of Motion itself (pages 1 to 5 of the Bundle) listed certain other Affidavits and Affirmations, which were never put before me, and, therefore, were not and cannot be evidence in this Motion. 28. I should observe that no objection was taken to my reading the Plaintiff's Affirmation of 28th August, 1981, although it does not appear in the list set out in the Notice of Motion, and, in the absence of objection, I received that Affidavit and have taken note of its contents. It is the Affidavit that appears from page 6 to page 12 of the Bundle. The Affirmation of Philip Li Siu-Chuen that was read to me is that one which is exhibited to the aforesaid Affidavit of the Plaintiff and was affirmed on 30th April: It appears from page 47 to page 49 of the Bundle. Although there is reference in the Notice of Motion to two other Affirmations of Philip Li, they were not read to me, and, consequently, they are not evidence in this Cause. The Affidavit of Ashok Rakyan to which I have referred to is the one referred to in the Notice of Motion and appears from page 101 to page 103 of the Bundle. 29. I am told that, on the Registry file, there are other Affidavits and Affirmations of divers people. I wish to mention one or two of them at this stage. 30. There was an Affirmation of Mr. Lam Seng-Fai himself. That was affirmed on 5th November, 1981, and it was put into the Registry file on the same day. That was withdrawn from my consideration by Mr. Lam's counsel, and, in consequence, it has not been put in evidence in this case. However, as is customary, and provided for and governed by the Rules, (See Note 38/2/3, 1st paragraph), it is, nevertheless, open to Mr. Mills-Owens to make use of any admissions contained in it, and he invited my attention to certain passages in that Affirmation, (at page 187 of the Bundle) not for the purpose of reading them, but for the purpose of relying upon them qua admissions. 31. There was also an Affirmation of Abdul Sukur Hamidou, who throughout these proceedings has been referred to as "Sukur". That was affirmed on 2nd November, 1981, and it was put into the Registry file on the 5th November, 1981. It appears from page 172 to page 175 of the Bundle. That was never put in evidence either, but Mr. Mills-Owens made reference to a passage in it on which he wished to rely on constituting an admission. 32. Then there was an Affidavit of Mr. Peter Hon, an Officer of this Court, which was sworn on the 28th October, 1981 and put into the Registry file on the 5th November. It appears from page 180 to page 185 of the Bundle. On that I must say two things. First, Mr. Hon. is a very responsible Officer of this Court: He, his firm and his family have been well known to the Court for many, many years, and, as one would expect of a responsible Officer of this Court, he, having heard certain of the evidence, caused Counsel for his clients (the Respondents) to make a statement, which Mr. Pirie most properly did, which put a different gloss on paragraph 3 of that Affidavit, because Mr. Pirie made it clear to me that his Instructing Solicitor, Mr. Hon, could now no longer say that he was "100 per cent sure" that Mr. Hameed, the Defendant, went with Mr. Lam to see him, as deposed to, on Tuesday, the 5th May, an important date in this case; but he, Mr. Hon, is sure that it could not be later than the 8th May, and to those two ends Mr. Pirie referred me to the diary - page 185 in the Bundle - produced as an exhibit to Mr. Hon's Affidavit. 33. Secondly, I would add this, that there was no attendance note of either of those conferences produced by Mr. Hon, and that Mr. Hon is relying solely on his recollection, unconfirmed by any written documents: I cannot commend him too highly for his action in explaining to me that the positive assertion in paragraph 3 ought no longer to be treated as a positive assertion. It does him, and counsel representing him, the greatest credit, and, whatever the result in this Cause, Mr. Lam ought to be very happy that he has a Solicitor of such rectitude. In view of the concession made by Mr. Hon as to paragraph 3 of his Affidavit, although there was a Notice of intention to cross-examine him, Mr. Mills-Owens decided, I think in the circumstances very correctly, that there was no need further to keep Mr. Hon here and that he would not cross-examine him. 34. The last Affirmation put before me was that of Mr. Lam Chun-Wing, which was affirmed on 28th October 1981 and put into the Registry file on the 5th November. It appears from page 176 to page 179 of the Bundle. That was read to me and was made the subject of cross-examination. 35. The reason that I have recited the evidence at length is that this matter may well go to the Court of Appeal; and when it does go to the Court of Appeal, there will be put before that Court the Bundle which consists of 222 pages, that is 221 numbered ones and a loose page 37A, and I would not wish the Court of Appeal to think that there was evidence for the Plaintiff other than that I have recited, on which I have based my decision. 36. There is another evidential matter I must refer to, and it is this: When Mr. Foster gave evidence he did so twice: First he appeared upon a subpoena duces tecum; and when he did that he produced a Police file, and I stress that it was a Police file, containing copies of all the documents in the original Police file (which was still being used elsewhere as investigations are continuing). That was marked Exhibit 3 and it contains twenty-two items. Only two of those items were put into and made evidence, and they are Items 13 and 14; statements of the Defendant, Hameed Moona Assan Abdul Cader, made respectively on the 22nd and the 28th July, and they were made exhibits in this Cause, marked respectively Exhibits 1 and Exhibit 2. None, and I repeat none, of the other contents of the Police file, Exhibit 3, was put in evidence before me, and none of it was in evidence in any way at all. I will revert to this point later, but I should mention it at this stage in relation to the Police file. 37. Both counsel invited me to deal with this Cause ignoring all hearsay evidence. Mr. Pirie did it by submitting that this was a quasi-criminal matter and that the Court should, in those circumstances, exercise its discretion to exclude all hearsay evidence. Mr. Mills-Owens merely invited me to ignore all hearsay evidence, and said that he would be content if I were to deal with the matter in that way. 38. This is a civil case, and I will do what counsel wish. That excuses me from the unhappy but interesting task, that I otherwise would have had, in deciding whether a Motion for leave to issue a Writ of Sequestration gives rise to an interlocutory judgment or to a final judgment, and, in consequence, whether or not hearsay evidence is admissible in such a Hearing. Those I must leave to another Court at a later date. 39. There is, however, no doubt that this is a quasi-criminal matter. It is clear from the Notes in the White Book relating to Sequestration that it is in the nature of contempt: That is to be found at Note 46/5/1 and it makes sense that that should be so. The Motion makes it quite clear, because the Plaintiffs ask for leave to issue their Writ against the Respondents, (K. Yu Sein Trading Company Limited and Mr. Lam), for their several contempts. That contempt is a quasi-criminal matter is also beyond doubt: See the judgment of Lord Denning M.R. in In re Bramblevale, Ltd.(3) at page 137A-B, and it is covered by the decision of Mr. Justice Cross, as he then was, in Yianni v. Yianni(4) at p.124D. That is the case that was specifically approved by the Court of Appeal in Comet Products (U.K.) Limited v. Hawkex Plastics Limited(5), which, incidentally, makes it quite clear that there could be no cross-examination of Mr. Lam, save by his consent, because the Court of Appeal, consisting there of Lord Denning, Lord Justice Megaw and Lord Justice Cross, was unanimous that a man charged with contempt cannot be compelled to give evidence against his will. In this case Mr. Lam has chosen not only not to give evidence, that is to say not to be cross-examined, (and in that respect I do not overlook Order 38 rule 2(3)), but he has chosen not to put his own Affidavit in evidence. (I would add here that Mr. Mills-Owens in this quasi-criminal matter, could not invoke Cauty v. Houlditch(6) to enable him to read it into evidence.) 40. Towards the end of the closing submission by Mr. Pirie on the case for the Respondents, he raised two questions:- 41. One concerned the giving of evidence by Mr. Lam's daughter, Miss Lim, but, after argument, he withdrew that application, and in those circumstances I do not have to deal with it; fortunately, because Mr. Pirie at first wished to invoke my powers, and such powers I undoubtedly have, to issue a subpoena to call witnesses who have not been called, or to call witnesses myself, because of the quasi-criminal nature of these proceedings. Anyway, that application was withdrawn. 42. The other, towards the close of Mr. Pirie's submission, was the suggestion that Mr. Lam might give oral evidence. That would have given rise to the difficulties I have referred to when mentioning Yianni v. Yianni(4), but that application was also withdrawn. 43. There was put before me, in addition to the two statements made to the Police and the Police file, an exhibit to an Affidavit, which was exhibited to the Affidavit of the Plaintiff to which I have referred, which consisted of 17 photostat copies of what appeared to be statements of borrowings, that is, by the Defendant, Hameed, from the Respondent Company. The actual Exhibit to the Affidavit (pages 27 to 42 of the Bundle) which is an exhibit to an Affidavit, was arranged in a higgledy-piggledy fashion, and difficult to go through, so I have caused my Clerk to take photostats to the documents themselves, and they will, for the purposes of this Motion, and, if it goes to appeal, for the purpose of the appeal, be Exhibit 4A. 44. I was also given a handwritten list, written by the Defendant, Hameed, from memory and given to the Plaintiff, Exhibit 5. I was given a bundle of documents, which both sides wished me to make an exhibit, Exhibit 6, which contains a letter from the Defendant, Hameed, copied to Inspector Cook at Tsim Sha Tsui Police Station, complaining about his having been ousted from his flat by a Mr. Yaseem together with another Mr. Hameed, while he was away in Malaysia, and also a statement of the Defendant, Hameed, about the wrongful possession of his flat and the loss of the contents of his desk and the destruction of his property, together with a list of precious stones and their approximate value. 45. I was also given Exhibit 8, which is in the nature of a stocklist that was made in either December, 1980, or January, 1981, by the Defendant, Hameed, which gives reference numbers, reference descriptions, descriptions of the stones, the number thereof, the carats and the rate per carat, and it has some entries of sale in it. 46. There are two other exhibits that I should mention. The first is Exhibit 4. That consists of the original duplicate documents referred to in the Police statements, and in evidence, as the "17 pages", and occasionally the "17 documents". Those were produced to his counsel by Mr. Lam, and put in evidence by Mr. Mills-Owens, but making it quite clear to me, and I now make it quite clear to the parties and to the Court of Appeal (if necessary), that they were the Respondent's documents. 47. And, lastly, I was given a bundle of telephone charge slips, from four hotels and the telegraph office in Kuala Lumpur. 48. Those are matters to which I shall refer in a moment. 49. I have to decide this case on the highest civil burden of proof, which approximates to proof beyond reasonable doubt: See, for example, In re Bramblevale, Ltd.(3). Whether it is proof beyond reasonable doubt or approximates to it, matters not; it is the highest standard of proof in a civil case, and it has been said in the English Courts, over and over again, that the more serious the allegation the higher the burden of proof on he who makes the allegation; and the allegations in this case are serious. 50. They involve a conspiracy to pervert the course of justice: They involve forgery. They involve conspiracy to utter forged documents: They involve conspiracies to deceive. They probably involve obtaining by deception: They probably involve conspiracy to obtain by deception. They cannot involve forgery before me by anyone other than the Defendant, Hameed, because, Mr. Lam's Affidavit, having been withdrawn, there is no evidence from him which could be the foundation of a finding of forgery. However, the Attorney General may take a different view when he reads as he is entitled to do, all the Affidavits and Affirmations, but that is not a matter with which I need to concern myself. 51. I now have to consider the principal evidence that was put before me, the only direct evidence in support of the contention that there was contempt of the Orders of 30th April and 25th June, 1981, and that is the evidence of Mr. Hameed, the Defendant. 52. It is not, I stress, a matter merely of observation. Sometimes it is said the trial judge sees and hears a witness, and, therefore, that his finding in relation to that witness is binding. That is not so. My duty is twofold: One, it is to observe the demeanour of the witness, to listen, (not to scribble notes endlessly, without raising my eyes from my notebook) but to watch the witness, and to listen. The second is to assess and weigh that witness's evidence against the background of the whole case; in other words, to consider the totality of the evidence, and to add to it my impressions of the witness. Observation and hearing in themselves are not conclusive: There must be an analysis of the evidence, and the weighing of that evidence against the background of the case: See Yuill v. Yuill(7) and the numerous cases which adopted and applied the words of Lord Greene, M.R. at pp. 19/20. 53. It is to be observed that Mr. Hameed gave no evidence in chief. 54. He was cross-examined by Mr. Mills-Owens and by Mr. Pirie. He was cross-examined thoroughly, and at very considerable length. Further, I permitted Mr. Mills-Owens to ask some additional questions at the end in clarification of certain points which had seemed confused at an earlier stage. I do not propose to go through the whole of the evidence of that gentleman. I propose to give a general summary of it, and to pick out one or two salient points. 55. I have no hesitation in saying I was most impressed with Mr. Hameed, not merely as a man seeking to exculpate himself, but who was prepared, in so doing, to say things against himself, because that in itself weighs in his favour, but because of the way he gave his evidence, and because of this factor: Whenever he was challenged in cross-examination on a particularly important point, he was able to point to, or to produce a contemporaneous document, which corroborated his evidence: For example, his story about his telephone calls from Malaysia; he did not know that he was going to be asked about telephone calls from Malaysia; he did not know that he was going to be challenged on those. He was challenged. He asked my leave to look in his briefcase, and, from his briefcase, he produced a bundle of charges, which is the Exhibit 7, to which I have referred, and they substantiated the fact that he had called the people when he said he called; and that was reinforced when Mr. Mills-Owens put the clarification questions to him with my leave, and through me, and identified those telephone numbers as being the numbers of the persons he said he called, such as Mr. Mehta, Mr. Sukur, Mr. Sultan and Mr. Hameed of the Gem Corporation-both their office numbers and their home numbers; and I observed that, in the majority of those cases, he was not prepared to answer Mr. Mills-Owens, as an untruthful witness would have done, with an immediate "Yes"; he wished to refer to yet another document that none of us knew he had, and that was a pocket book containing what looked from here to be several hundreds of telephone numbers and names; and, sure enough, the names on the documents issued by the Hotel Champagne, the Peking Hotel and so on, were the numbers of the people he said he called. Only then was he prepared to say "Yes". That is an indication of how careful he was. 56. Exhibit 8 was produced only in order to reinforce what he said. When he was challenged about certain stones and certain documents, he asked that certain Court Exhibits be handed to him and, lo and behold, again he was correct. He was able, in each instance when he was challenged, to give what appeared to me either to be a convincing answer, or an incontrovertible answer, by reference to other documents, which had been accepted by both sides. 57. I think that is sufficient to indicate some of my reasons, the major ones of my reasons, for accepting his evidence without qualification. He was a man who had no hesitation in admitting to me that he was so "without guts", to use his own phrase, that he was not prepared to face the Plaintiff, Mr. Rubin, and that he was so utterly ashamed of himself that he would not even go to prayers for three weeks: That latter may, in this iconoclastic age, seem strange to some of the persons listening in this Court. But when you consider that here was a man who gauged time by prayer days and by prayer hours, who wished not to give evidence on his religious holy day, and who took the step of raising his right forefinger to Heaven and invoking the name of Allah in support of his evidence when asked, right at the end, not a question about any particular detail, but about whether he wished to change anything that he had said in the light of his very, very recently acquired knowledge that this was not a case against him, in which he had to defend himself, but a case against somebody else, whom he could have chosen to attack. On that matter I think it is only right, before I go on, to mention another small incident that occurred at the very early stage in his evidence. He was asked whether Mr. Lam was, in the circumstances put to him and in the light of his own answers, a liar. He was not prepared to say that Mr. Lam was a liar, and, although pressed on it he twice, made it quite clear that he was not prepared to say that Mr. Lam was a liar; he was prepared to say that he himself was being truthful, but he would leave it to two others to decide whether Mr. Lam was a liar, one, an earthly judge, and the other a judge in the world to come. 58. It may not have been understood by Counsel, but the essence of what he was saying was that it is not for him to say who lies, it is for Allah to determine once and for all, and it is also for a temporal judge to decide pending a decision of the Court of Appeal. That came so spontaneously that it lent additional weight to his evidence, and it is something that I have not overlooked. I have not put too much weight on it - it is just a grain put on an apothecary's scale when there are scruples there already. 59. What then is the effect of his evidence? And, in saying that, I direct myself in accordance with the invitation issued by both counsel, and accepted by me, that I must put out of my mind all hearsay evidence, all the Defendant's conversations with his other creditors, all his conversations with Mr. Sukur, with Mr. Dayal, with Mr. Hameed of Gem, Corporation, and I must deal only with his direct evidence. 60. On the basis of that evidence, he gave all the gems in question to Mr. Lam of K. Yu Sein Trading Company; he borrowed money against those stones, (I will add parenthetically at this point that those two facts are expressly admitted by the two respondents through their counsel). He has said affirmatively, and has neither been challenged nor shaken on it, that he never repaid a penny to Mr. Lam or Mr. Lam's company in respect of the millions of dollars in debts owing on those stones. The debts, of course, are the debts occasioned by his borrowing from Mr. Lam against the value of the stones, which were not his stones. He has said affirmatively, and I considered him to be unshaken in his evidence, that he has never received back any of those stones. In the absence of evidence to the contrary, that means that all the gem stones listed, were in the possession of the Respondents at the date of Mr. Justice Penlington's Order of 25th June, 1981, and, a fortiori, were in their possession at the date of the Attachment Order of Mr. Registrar Chism of 30th April, 1981. 61. I accept that evidence that they were so in the possession of the Respondents on those two dates, but, in coming to that conclusion, I have not overlooked the Affirmation of Mr. Hon, as modified by him through his counsel, nor the Affirmation and evidence of Mr. Lam Chun-Wing. It is necessary that I should go further into those two matters, because it is not sufficient for me to say, in a quasi-criminal matter, that I accept Mr. Hameed's evidence and that, therefore, I must find for the Plaintiff whose Motion this is. I must look at Exhibits 4A and 4, and I put them in that order advisedly, and I must consider the conflict between Hameed and Mr. Hon's Affidavit at paragraphs 2 and 3, and the actual conflict between the evidence of Mr. Lam Chun-Wing and the afore-mentioned Affidavit lodged on behalf of the Plaintiff. 62. I will deal with the first matter first. 63. Mr. Hameed has told me, and I accept and I find as a fact, that Exhibit 4A are true photostat copies of true carbon copies of the 17 pages, in his possession at the Excelsior Hotel at the time when the photostat copies were either made by Mr. Rubin or someone with him, and handed to Mr. Rubin. 64. I accept the evidence of Mr. Hameed that the endorsements on Exhibit 4 (also to be found at pages 195 to 211 of the Bundle) were not made on the dates when they appear to be made, and I find as a fact (on the aforesaid standard of proof) that they were made a few days before he saw Mr. Hon, on what was probably 8th May. 65. The conflict between Mr. Hon and Mr. Hameed is more apparent than real. If one looks at what Mr. Hameed said happened, it is sufficiently near to the evidence of Mr. Hon as to what happened between him and Mr. Hameed as to be reconcilable, and, as I have said, I accept Mr. Hameed as a truthful witness. That does not mean that I do not accept Mr. Hon as a truthful witness. Both are searching back in their memories for a conversation that took place on 5th or 8th - most probably the 8th - of May of this year, and it is notoriously difficult to recall the ipsissima verba of a conversation. When one matches what Mr. Hameed said in answer to Mr. Pirie, and what he said in answer to Mr. Mills-Owens against Mr. Hon's affidavit, the difference will be seen, as I have just said, to be more apparent than real. Consequently, I do not need to resolve the "difference" between those two, and it does not in any way shake my findings in favour of Mr. Hameed. 66. It follows from that, most regrettably, that I must find as a fact (again on the standard of proof referred to) that Exhibit 4 are forgeries, deliberately made to deceive this Court and to deceive other creditors (including the Plaintiff, Mr. Rubin). It gives me no pleasure to reach such a finding because of the possible consequences, and, because of the possible consequences, I do not wish to say any more about those two exhibits. 67. So far as the conflict between Mr. Lam Chun-Wing and the Plaintiff's witnesses is concerned, I really do not need to resolve it in view of what I have already found. But I will add this: Mr. Lam was young, a new-comer to Hong Kong. He had never given evidence in Court before and, consequently, was extremely nervous. No doubt he comes from a traditional background which looks with horror upon appearing in a court of law. He struck me as being truthful but uncertain, and, if I had to choose between him and the evidence given on behalf of the Plaintiff, I would, on balance, find in favour of the Plaintiff, but, as I say, I do not have to reach that conclusion in view of my other findings. If I had to, I would find in favour of the Plaintiff's evidence only on the balance of probabilities, which would not weigh in favour of the Plaintiff because I have to find for him on a standard equivalent to, if not equal to, beyond reasonable doubt. But this is a subsidiary matter: It relates only to a conversation between the Bailiff and three others on the one side and Mr. Lam Chun-Wing on the other. In the absence of any evidence from the first Respondent, Mr. Lam; and I do not forget that he is not obliged to give evidence; I do not forget that he is not compellable; I do not forget that he cannot be cross-examined except by consent: But in the absence of anything from him or from Miss Lim, I am left only with the evidence of a man whom I found to be truthful. 68. In my judgment, therefore, these stones were, at both material dates, in the possession of the Respondents. They have not handed them to my Bailiff as directed, and they are, therefore, in breach of the Attachment Order of 30th April and they are, therefore, also in contempt by wilfully disobeying the Order of Mr. Justice Penlington. I am not asked to commit anybody to prison for either of those contempts: All I am asked to do is to grant the Plaintiff leave to issue a Writ of Sequestration, and that I do. 69. I want to make it quite clear, however, that the Order when drawn must contain a provision for the repayment to the Respondents, and to each of them, of any balance in their favour after the realisation of the judgment debt, interest and costs. The Security for Costs is released. The only Costs that I have to deal with then are the costs of these proceedings. 70. ORDER: Plaintiff to be at liberty to issue a Writ of Sequestration against each Respondent in terms of the Amended Notice of Motion. The Plaintiff's costs of and incidental to the Motion are to be paid by the Respondents on a common fund basis. The Plaintiff undertakes by his Counsel to ensure that the Respondents are repaid any balance remaining after sequestration and realisation to meet the judgment debt, interest and costs of the Action.
Representation: Solicitors: Deacons for the Plaintiff Hon & Co. for the Respondents Appearances: Mr. Richard Mills-Owens, Mr. John Bleach and Miss Selina Lau for the Plaintiff. Defendant in person. Mr. Pirie for the Respondents. (1) [1957] 2 Q.B. 55 (2) [1962] H.K.L.R. 139 (3) [1970] Ch. 128 (4) [1966] 1 W.L.R. 120 (5) [1971] 2 Q.B. 67 (6) (1844) 14 Sim. 75 (7) [1945] P. 15 |