Wong Wai Hing v. Hui Wei Lee
Read the full judgment text of HCA 2901/1998 on BabelCite. This High Court CFI judgment was delivered on 29 March 2000.
1. In this action the 1st and 2nd Plaintiffs claim that the Defendant has, through her agents, assaulted and intimidated them. They seek injunctive relief as well as damages including exemplary damages against the Defendant.
Cited by 5 cases
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HCA002901/1998 HCA 2901/1998 Headnote Claim by 1st and 2nd Plaintiffs against Defendant for injunction and damages for assault and intimidation. Whether the acts complained of amounted to assault and intimidation. Whether Defendant liable for the unlawful acts of her agents. Held, some of the acts complained of constituted assault and intimidation but the Defendant was not liable for the unlawful acts of her agents. HCA 2901/1998 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 2901 OF 1998
Coram: Hon. Sakhrani J in Court Date of Hearing: 28 February 2000 - 3 March 2000 and 6 March 2000 - 9 March 2000 Date of Judgment: 29 March 2000 ____________________ J U D G M E N T ____________________ 1. In this action the 1st and 2nd Plaintiffs claim that the Defendant has, through her agents, assaulted and intimidated them. They seek injunctive relief as well as damages including exemplary damages against the Defendant. 2. Both the 1st and 2nd Plaintiffs gave evidence. I also heard evidence from Lau Kam Ping ("Lau") and Connie Mo Fu Kuen ("Connie Mo") on behalf of the Plaintiffs. I also heard evidence from the Defendant as well as from Li Yuk Ping ("Li") and Kwong Ho Yin ("Kwong") on behalf of the Defendant. Background 3. The 1st and 2nd Plaintiffs are husband and wife. The 1st Plaintiff is and was at all material times employed by American International Assurance (Bermuda) Limited ("AIA") as a high ranking officer namely, senior district director. The 2nd Plaintiff is and was at all material times employed by AIA as a district director. AIA is a well-known insurance company which sells insurance. The Defendant is a medical practitioner practising medicine in Hong Kong. 4. The 2nd Plaintiff first came to know the Defendant through one of her insurance clients, Leung Lai Ha ("Leung") in or about September or October 1994. The Defendant subsequently became a client of the 2nd Plaintiff who sold her an insurance policy with AIA. At a tea party in late 1994 attended by the 1st and 2nd Plaintiffs, the Defendant and others, the 1st Plaintiff was introduced to the Defendant by a mutual friend, Tin Yuen Sin ("Tin"). 5. Apart from their duties with AIA, the 1st and 2nd Plaintiffs had their own personal investments. As at late 1994, the 1st and 2nd Plaintiffs, together with others, had already invested in two Chinese restaurants in Toronto, Canada. The investments were in shares in the companies owning the restaurants. There were plans to open a third restaurant in Scarborough, Toronto, Canada. According to the evidence of the 2nd Plaintiff, Leung and the Defendant heard Tin, who was one of the investors, asking the 1st Plaintiff questions about this investment and the Defendant and Leung both expressed an interest in investing in this restaurant as well. The third restaurant was to be owned by Grand Yatt Dynasty (Scarborough) Restaurant Inc. ("GYD"). There were originally six shareholders of GYD including the 1st and 2nd Plaintiffs and Tin. According to the minutes of the meeting of GYD held in Hong Kong on 7 March 1995, each shareholder was to receive 150 shares in GYD. 6. The evidence of the Plaintiffs is to the effect that it was the Defendant who approached the 1st Plaintiff to be included as an investor in the restaurant owned by GYD. According to the 2nd Plaintiff, Leung said she was interested in investing in this restaurant but she didn't have the money. She requested the Defendant to make available the necessary money for her but the Defendant declined. The Defendant made the request to join in on her own without Leung. The Defendant, however, gave evidence that it was the other way round. She said that it was the 1st and 2nd Plaintiffs who were after her to make an investment in GYD. Whether the Plaintiffs' version or the Defendant's version is correct is not a matter that I need to or should resolve in this action as there is another action between the Defendant and the 1st Plaintiff where that issue will have to be decided. Suffice it to say that it is common ground that the Defendant was permitted by the Plaintiffs and the other shareholders to participate as an investor in GYD. The 1st Plaintiff gave evidence that as a result of this, the shareholding of the 2nd Plaintiff in GYD was adjusted slightly so that instead of taking 150 shares she would take 100 shares. The Defendant and the other five shareholders including the 1st Plaintiff would each take 150 shares making a total of 1000 shares. The paid up capital of GYD would be CAD $1,000,000 instead of CAD $900,000 with the participation of the Defendant as an investor. The shareholders, apart from the 2nd Plaintiff, were each to invest CAD $150,000 for 150 shares. In the case of the 2nd Plaintiff this was to be CAD $100,000 for 100 shares. The Defendant contributed a total of CAD $150,000 by two instalments. In April 1995 she paid CAD $127,000 and the balance was paid subsequently. 7. The 1st Plaintiff gave evidence that he was subsequently advised by a Canadian lawyer and accountants that the corporate structure should be changed for taxation purposes . The shareholders of GYD should instead each hold 15 special shares of CAD $1 each and GYD would issue each of them with a promissory note in the amount of CAD $149,985 without interest to make a total of CAD $150,000 investment. The number of special shares and the amount of the promissory note in the case of the 2nd Plaintiff would be less as she was only investing CAD $100,000. The 1st Plaintiff said that all the shareholders including the Defendant agreed to this change. The restaurant opened for business in about June 1995. 8. The Defendant gave evidence that she received a share certificate dated August 1995 for 15 special shares in GYD and a promissory note from GYD for CAD $149,985 in respect of an interest free loan to GYD for five years. She later learnt that the holder of the special shares did not have voting rights nor the right to attend shareholders' meetings according to the article of incorporation of GYD. This was, she said, contrary to what she had been promised by the 1st Plaintiff when she agreed to contribute CAD $150,000 to GYD. 9. After the institution of this action, the Defendant brought an action namely High Court Action No. 3863 of 1998 against the 1st Plaintiff ("the other action"). The other action 10. I have been referred to the pleadings in the other action. It is alleged by the Defendant that there were a number of representations made by the 1st Plaintiff to induce her to enter into an agreement with the 1st Plaintiff whereby the 1st Plaintiff agreed to procure the allotment of 150 shares of CAD $1,000 each in GYD at the value of CAD $150,000. The representations that were allegedly made were, inter alia, that GYD was a subsidiary of the Grand Yatt Group of restaurants in Canada which would be publicly listed in Canada and that the 150 shares would entitle the Defendant to participate in the company's business including voting rights, the rights to be rendered monthly accounts of the company and the rights of attending shareholders' meetings. It is alleged that the misrepresentations were false and that the 1st Plaintiff made the representations fraudulently. As a result, she seeks in the other action rescission of the agreement and return of the sum of CAD $150,000 paid by her or damages to be assessed. She also alleges that in March 1996 an agreement was made between her and the 1st Plaintiff that the 1st Plaintiff would purchase or procure GYD to purchase from her the 15 special shares and the rights under the promissory note for CAD $150,000 before the end of July 1996. The 1st Plaintiff failed to pay her that sum and she claims that he owes her the said sum of CAD $150,000 with interest. 11. The 1st Plaintiff denied that he made the representations as alleged or that he has made any fraudulent misrepresentations to the Defendant. He also denied that he had ever agreed to purchase the shares held by the Defendant and the promissory note back from the Defendant for CAD $150,000 or at all. These are matters which will have to be resolved in the other action which has not yet been set down for trial. As such, I should, of course, not make any findings on these matters. 12. The 1st Plaintiff also gave evidence that GYD has now been wound up. It is plain from the evidence of the Defendant that she felt that she had been cheated by the 1st Plaintiff into investing her CAD $150,000 and in not receiving 150 common shares with voting rights and access to monthly accounts. On 5 September 1996 she engaged solicitors Lo, Wong & Tsui ("LWT") to write to the 1st Plaintiff alleging that he had made fraudulent misrepresentations to her to induce her to pay over the sum of CAD $150,000. Her solicitors also alleged that the 1st Plaintiff had agreed to purchase back her shares and the promissory note by July 1996 and they made a demand on her behalf for the sum of CAD $150,000. The 1st Plaintiff's solicitors Charles Yeung, Clement Lam & Co ("CYCL") replied on 19 September 1996 and denied the allegations and also set out the 1st Plaintiff's case. No proceedings were instituted by the Defendant at that time. Instead, a number of things occurred giving rise to the complaints against the Defendant in this action. 7 October 1996 13. Lau, the secretary of the 1st Plaintiff, gave evidence that on 7 October 1996 she was at the premises of AIA on 17 Floor of Caroline Centre, Yun Ping Road, Causeway Bay, Hong Kong ("AIA's premises"). She said that she told two Chinese men who came there looking for the 1st Plaintiff that he was not in. One of the two men gave his surname as Chan. They then requested to see the 2nd Plaintiff and were told by Lau that she was not in her office. One of the two men said that it was a Mrs Ng who had told them to come. He told Lau to get in touch with the 1st Plaintiff and that if she failed to locate him within that day then the 1st Plaintiff would have to bear the consequences. He was impolite and rude and said that the press as well as the police would come up to the office very soon and would take away all the documents and computers for investigation, that press photographers would take photographs and that it would harm the reputation of the company. He said he knew who the 1st Plaintiff was. He demanded to see the 1st Plaintiff and said that it was in connection with a fraud case and he would like the 1st Plaintiff to pay the debt. He requested to go inside the offices to talk but on being requested to register in the visitor's book, he refused. He told Lau that they had to get in touch with the 1st Plaintiff within that day or else he would take action and the 1st Plaintiff would have to bear all the consequences. Lau then went inside the office and reported the matter to the office manager, Connie Mo. Connie Mo asked her to take them to her office which she did. Connie Mo also gave evidence that when the two men were brought to her office, one of them said that the 1st Plaintiff was involved in a deception case. He refused to identify himself when asked by her to do so. He said he was a civil servant. He also said he was a Public Security Bureau Officer. He told Connie Mo that the 1st Plaintiff was involved in a deception case where he ought to have issued 150 shares but he only issued 15 shares. She said that she did not understand what he was talking about and if it was something to do with the 1st Plaintiff personally and if it was a deception case, he should report the matter to the police. The two men made a number of telephone calls using their mobile phones. He also said to Connie Mo that in this world some people just disappear without any apparent reason. He asked her to get in touch with the 1st Plaintiff immediately and also to tell AIA's Vice President, Mr Pou about the matter. She asked how he could be contacted and he jotted down a telephone number on a piece of paper. He told her she should get in touch with the Defendant. As he was about to go away, he waved a green card in front of her which said Public Security Bureau Officer of the PRC but there was no photograph on the card. They then left. Connie Mo gave evidence that she wrote a message for the 1st Plaintiff explaining the incident and asked Lau to get in touch with the 1st Plaintiff. She also informed Mr Pou of the incident. The matter was reported to CYCL and they wrote to LWT on 7 October 1996 making a complaint about this incident and asking the Defendant to desist from using her agents to molest, harass and intimidate the 1st Plaintiff and the staff. 9 October 1996 14. The 2nd Plaintiff gave evidence that she was working on that day at AIA's premises. She received two telephone calls from a male looking for the 1st Plaintiff. She told him the 1st Plaintiff was not in and the caller said in a fierce tone that the 1st Plaintiff had absconded and had gone very quickly. The second call came half an hour later from the same caller who said the same thing and hung up. She was scared and worried as she had learnt about the incident at AIA's premises two day earlier on 7 October 1996. 11 October 1996 15. On that day, the Defendant telephoned the 2nd Plaintiff and told her that the 1st Plaintiff had sent two persons to her clinic to threaten her. She accused the 1st Plaintiff of defrauding her and said that the whole world knew it. She said that even though the 1st Plaintiff had good connections she didn't think that would help him and she also had good connections. She then hung up. The 2nd Plaintiff told her solicitors about this and on 11 October 1996 CYCL complained to LWT about this incident as well as the occasion of 10 October 1996 when the Defendant went to see Mr Pou of AIA and allegedly made defamatory statements against the 1st Plaintiff to Mr Pou. The next thing that happened was in early 1998. 9 February 1998 16. The 2nd Plaintiff gave evidence that on that day two men from Yue Hoi Financial Management Company ("Yue Hoi") came to AIA's premises. Her secretary, Miss Wong, told her that two debt collectors had come there and were at the reception hall looking for the 1st Plaintiff. She asked her secretary to let Connie Mo know about it and to ask the two men to register as visitors. As the 2nd Plaintiff was on the telephone at that time she finished her call and then went to the reception area. She saw the two men with her secretary who told her that they refused to register themselves. It is common ground that the two men were Kwong and Chan Ming Fat who were debt collectors employed by Yue Hoi at the material time. They told the 2nd Plaintiff that they were from Yue Hoi and were looking for the 1st Plaintiff. She asked him whether he had a letter of authorization and he said yes. A file was put on the table and she saw an authorization letter from Yue Hoi. She requested him to take it out to let her have a look but he declined. She also saw a photocopy of the 1st Plaintiff's and her own name card on the file. By this time, Connie Mo had come out and asked what she could do to help. They said that they were looking for the 1st Plaintiff to collect a debt. The 2nd Plaintiff said that to her understanding the matter had been taken over by solicitors but the debt collector shouted at her saying that there wasn't any need for her to tell him what to do. According to the 2nd Plaintiff, Connie Mo also said that if there were any further matters they ought to look for a solicitor to sort it out. But the man said in a loud voice that he didn't need her to tell him what to do. He said he would go to his home searching him out right away and he crossed out the words "Yue Hoi" in the visitor's book and left. The 2nd Plaintiff said she was scared by the incident and informed CYCL. She spoke to the 1st Plaintiff over a long-distance telephone call as he was in Canada at the time. On his suggestion, a report was made to the police two days later. 17. Connie Mo also gave evidence that on 9 February 1998 she was informed by a colleague that there were two men at the reception hall behaving in a vulgar fashion and were foul-mouthed saying that they had come to collect a debt. She confirmed the 2nd Plaintiff's evidence on these matters. She also confirmed that the man, later known as Kwong, said that he would go and search the 1st Plaintiff out in an angry and loud voice. They were using foul language and were so fierce that she was very frightened by this incident. 18. The 1st Plaintiff also gave evidence that he was very worried when the 2nd Plaintiff told him over the telephone of this incident and when she spoke to him she cried. They knew their office address, home address and they could appear at any time. He was concerned about his wife's safety, his own safety and his colleagues' safety and told the 2nd Plaintiff to report the matter to the police which she did. 13 February 1998 19. Kwong and Chan Ming Fat both went back to AIA's premises on 13 February 1998. Lau said that she saw the two men there when she went back to her offices in the afternoon. She knew something was brewing as she had seen the closed-circuit video tape of the incident which took place on 9 February 1998. She told Connie Mo about their presence and was told that the police had been called. Then she and Connie Mo went out to the reception hall. Kwong requested to see the 1st Plaintiff and Connie Mo told him that he was not in Hong Kong. Kwong told her it was not her business and that she had better not take the matter up. He also requested to see the 2nd Plaintiff but was told that she was not in. Then Kwong produced a pile of documents and said that those were the proof to show that the 1st Plaintiff had done something wrong outside his office. He requested to see the 1st Plaintiff and they replied saying that he was not in Hong Kong. He said he would send 15 young men to the office to cause a disturbance and that it would only cost $500 for bail money for each of them. Kwong requested to go to the office to talk to Connie Mo and she agreed. He was requested to register in the visitor's book which he did and he produced his identity card. He then went to Connie Mo's office. After a while, Lau was informed that the police had arrived and Connie Mo went out to attend to the police leaving Lau and Kwong in the room. Kwong told Lau to tell Connie Mo not to play any games and that it was not going to help them by calling the police. Then Connie Mo and the policeman came into the office. After the policeman spoke to Kwong, Kwong and Chan Ming Fat left AIA's premises. 20. Connie Mo confirmed the evidence of Lau of the incident on 13 February 1998. She said that she was told that two male debt collectors were there to collect a debt and they said that there would be over 10 persons coming up to the offices to cause a disturbance. So she telephoned 999 and called the police first because of what had happened on 9 February 1998. Kwong told her he had come to collect a debt of CAD $150,000 plus interest. She said that the 1st Plaintiff was not in and he asked her to tell his mistress to come out, referring to the 2nd Plaintiff. She told him that the 2nd Plaintiff was not in. According to her, he said a lot of things using vulgar language. She remembered him saying that it was nothing concerning her and asked her not to take the rap for other people. He said that she had better not play any games otherwise he would send 15 young men adding that it would only cost $500 for bail money for each of them. She also said that when she went out to see the policeman, the other debt collector, Chan Ming Fat, made a gesture and said to her that she had better be careful. She spoke to the policeman telling him why she had reported the matter. The policeman then spoke to Kwong and after that Kwong and Chan Ming Fat left. 15 February 1998 21. This was a Sunday. The 2nd Plaintiff and Connie Mo both gave evidence that they went back to AIA's premises on that day because someone had sprayed red paint in the lift lobby. The photograph produced in evidence shows that the words "Wong Wai Hing repay money" was sprayed in large Chinese characters in red paint. Connie Mo said that she called the police about this incident. 20 February 1998 22. Lau gave evidence that on that day she was working at AIA's premises. She received a phone call from a male looking for the 1st Plaintiff. She told him that he was not in Hong Kong and asked who was looking for him. The caller said he would chop the 1st Plaintiff up. He asked Lau whether she was his secretary. Then he said that she should relate the call to the 1st Plaintiff and that he had better show up and pay the money back. He also said that he would go after the 1st Plaintiff, the 2nd Plaintiff and her and he would disfigure them. She was very scared at the time. The caller said that he knew where the 1st Plaintiff and others, including Lau, lived and that they had to be careful when they were out in the street. He repeated that he meant what he said and that he would really take action. He asked Lau to get in touch with the 1st Plaintiff and said that they should be careful. Lau couldn't identify the caller. 23. As a result of these incidents, the Plaintiffs issued the writ in this action on 26 February 1998 and applied for an interlocutory injunction. The Defendant gave an undertaking until trial or further order in the terms contained in the order of Sears J. made on 20 March 1998. The Issues 24. The issues that I have to deal with are :-
The Defendant's evidence 25. The Defendant gave evidence that it was the 1st Plaintiff who was persuading her all along to invest in the restaurant in Canada. She said that she felt she was cheated when she received the share certificate for the 15 special shares and the promissory note and when she learnt that she was not given any voting rights or the right to inspect the accounts. She also gave evidence that in March 1996 the 1st Plaintiff agreed to buy back the shares and the promissory note from her. She felt that she had been cheated by the 1st Plaintiff and asked LWT to write the demand letter of 5 September 1996. As I have said, these are matters to be resolved in the other action. 26. The Defendant denied that she had sent any one to AIA's premises to look for the 1st Plaintiff on 7 October 1996. She, however, said that she knew from her solicitors that one of the two men who went there on 7 October 1996 was Chiu Chi Kwan ("Chiu"), a patient of hers. She said that she had mentioned to Chiu at her clinic that she had been cheated. Chiu had been her patient since about August 1996. She said that she did not send Chiu to go to the 1st Plaintiff's office asking to see him. However, she did speak to him about the matter and that she had lost CAD $150,000. She said that she showed him the 1st Plaintiff's name card. Chiu said he would try to have a talk with 1st Plaintiff if he had the time and she thanked him. She said that she didn't follow up the matter with Chiu. 27. The Defendant denied any knowledge of the telephone call to the 2nd Plaintiff on 9 October 1996. She also gave evidence that on 11 October 1996 whilst she was in her Tai Po clinic she was visited by two men who said to her that the 1st Plaintiff was more well off than her and that he knew what people to instruct and what action to take and asked her not to play any tricks or games at all. They asked her to be careful. She reported the matter to the police. She telephoned the 2nd Plaintiff to complain about this visit. 28. The Defendant also gave evidence that in around December 1997 her nurse Li had suggested to her that to sue the 1st Plaintiff to recover her CAD $150,000 would take time and cost a lot of money. Li suggested that she should engage a financial management company to collect the debt for her as many banks would engage such a company for collection of debts. She agreed to do so and read an advertisement in the Oriental Daily which led her to contact Yue Hoi. She telephoned them and Kwong came to her clinic on 3 January 1998 for a meeting. Li was present but was not there for the whole of the meeting. The Defendant showed Kwong the documents concerning the CAD $150,000. Kwong took the documents back to his office for photocopying. She told Kwong that the 1st Plaintiff had cheated her and asked him whether she would be able to get it back. Kwong said he would have a way to do it. He assured her that no illegal means would be used. She besieged him not to do anything that was illegal. He told her not to worry and that there was a contract which already stated that nothing illegal would be undertaken. 29. The letter of appointment and the contract with Yue Hoi were produced in evidence. The second paragraph of the letter of appointment provided as follows :
Clause 3 of the contract stated that :
Clause 9 provided that :
Under the contract, Party A was the Defendant and Party B was Yue Hoi. 30. The Defendant said that Kwong had drawn her attention to those clauses. She agreed to pay Yue Hoi 35% of the sum collected with 65% going back to her. The Defendant did read the letter of appointment and contract and she also made some additions in her own handwriting which she initialed. 31. She denied any knowledge of the incident at AIA's premises on 9 and 13 February 1998. She said she received a telephone call from the police on 16 February 1998 to go to the police station. Because of this she telephoned Kwong to ask him about the matter. He assured her that he hadn't done anything to cause a disturbance. She said that after her visit to the police station she called Kwong again asking him to leave the matter alone and told him that he could claim back the expenses incurred. Again he assured her that he hadn't done anything unlawful and said that he would see how much expenses had been incurred and would let her know. On 21 March 1998 she paid Kwong $5,000 cash and obtained a receipt signed by Kwong on behalf of Yue Hoi dated 21 March 1998. This was done in the presence of her solicitors. It provided, inter alia, as follows :
32. The Defendant also denied knowledge of the red paint sprayed outside AIA's premises on 15 February 1998 and the telephone call to Lau on 20 February 1998. Li's evidence 33. Li gave evidence that she had been working for the Defendant since 1994 as a nurse. She said that the Defendant had told her that she had been cheated in the investment that she had made in Canada. She said that in late 1997 she understood from a patient that instructing a solicitor would cost a lot of time and money. She had also heard that banks had engaged debt collectors to collect debts and that it would not be so expensive to do so. It would also be quicker. So she suggested to the Defendant that she should engage the services of a debt collector. She confirmed that the Defendant called Yue Hoi after seeing an advertisement for Yue Hoi in the newspaper. She confirmed that Kwong came to the clinic. She was present and remembered that the Defendant showed him some documents as proof that she had been deceived. She also remembered that Kwong had guaranteed to the Defendant that only proper means would be used to collect a debt. She didn't think Kwong had explained to the Defendant how he would collect the debt and he said that his company would have its ways to do it. He guaranteed that it would only involve proper means. She was not present throughout the whole meeting with Kwong and the Defendant as she had to attend to other matters in the clinic. Kwong's evidence 34. Kwong gave evidence that he was employed by Yue Hoi as a debt collector. He explained that he would only employ lawful means to collect the debt. He confirmed that the Defendant had called Yue Hoi and he went up to see the Defendant at her clinic at Nathan Road. He said that the Defendant told him that the 1st Plaintiff had taken her money to invest in a restaurant but after some time there wasn't any business and the money wasn't given back to the Defendant by the 1st Plaintiff. He was shown about 40 to 50 pages of documents, mostly in English. He took these back to his office for photocopying and also brought a letter of authorization and contract for the Defendant to sign. 35. He said that the second paragraph of the letter of appointment and the clauses in the contract set out above were standard clauses in Yue Hoi's letter of appointment and contract. They were there for the protection of the client as debtors would try every way to avoid payment including wrongly accusing them of intimidation as was the case here. He said that the instruction given by the Defendant was to talk to the 1st Plaintiff in a polite manner. 36. Kwong admitted going up with Chan Ming Fat on 9 February and 13 February 1998 to AIA's premises but he denied that they had behaved in the way that the Plaintiffs' witnesses gave evidence about. He denied that he or Chan Ming Fat had used foul language or had threatened any one there. He denied saying that he would search the 1st Plaintiff out or that he would send 15 young men to go up to the office to cause a disturbance and that it would only be a matter of $500 bail money for each of them. 37. Kwong said that on 9 February 1998 at AIA's premises he requested to see the 1st Plaintiff. After he was told that he was not there, he asked to see the 2nd Plaintiff. A woman came out, and he told her about the matter. She said that a solicitor was dealing with the matter. He said that he still wanted to speak to the 1st Plaintiff about the matter. She said she would try her best to get in touch with the 1st Plaintiff. Kwong said he would come back in a few days' time and then left. He denied using any foul language or raising his voice. He did show documents to the persons during the visit. 38. He went back again with Chan Ming Fat to AIA's premises on 13 February 1998. He asked to see the 1st Plaintiff and registered in the visitor's book when asked to do so. He said that he was there acting on the Defendant's behalf and that he would like to speak to the 1st Plaintiff regarding the debt. He showed them the letter of appointment and a bundle of documents. Whilst he was waiting for a while, a policeman came and spoke to him and after taking down his particulars, he was told to leave which he did. He denied using any foul language or threatening any one or saying that he was going to bring 15 young men to cause a disturbance in the office. He also denied knowledge of the red paint found outside AIA's premises on 15 February 1998 and the telephone call to Lau on 20 February 1998. 39. There was also evidence that Kwong and Chan Ming Fat were arrested by the police in respect of criminal intimidation on 18 February 1998. Both Kwong and Chan Ming Fat were charged with criminal intimidation but they were both acquitted when the prosecution offered no evidence against them on this charge. Kwong also said that after his arrest he did speak to the Defendant who said that the contract was going to be terminated. He confirmed that on 21 March 1998 he received $5,000 from the Defendant and that he signed the receipt dated 21 March 1998. Assaults and Intimidation 40. It is clear that threats and vile abuse per se do not constitute assault (Clerk & Lindsell on Torts 17th Edn., para. 12-12). 41. I was referred to Barton v. Armstrong [1969] 2 NSWR 451 by Counsel for the Plaintiff, Mr Kwok. In that case, it was held, inter alia, that threats which put a reasonable person in fear or apprehension of physical violence can constitute an assault, although the victim did not know when that physical violence may be effected. In dealing with whether threats made over the telephone can amount to an assault, Taylor J. said at 455 :
Barton v. Armstrong was applied in R v.Ireland [1996] 3 W.L.R. 690. I accept that the law is as stated by Taylor J. in Barton v. Armstrong and as applied in R v.Ireland. 42. There is as yet no tort of harassment in our law. However, the tort of intimidation by way of a threat to commit a criminal or tortious act is well established (see Rookes v Barnard [1964] AC 1129). Findings 43. As regards the incidents which took place from 7 October 1996 to 20 February 1998, I have no hesitation in accepting the evidence of the 2nd Plaintiff, Lau and Connie Mo on these matters. I am satisfied that they are witnesses of truth who gave their evidence honestly and tried their best to recall the events. I prefer and accept their evidence and reject the evidence of Kwong where his evidence is at variance with their evidence. I do not believe that Kwong has told me the truth about what took place at AIA's premises on 9 February 1998 and 13 February 1998. I also do not believe him when he said that he knew nothing about the incident where red paint was sprayed at the lift lobby outside AIA's premises and which was discovered on 15 February 1998. And I also do not believe him when he said that he knew nothing about the telephone call to Lau on 20 February 1998. 44. I find that on 7 October 1996 two men went to AIA's premises asking to see the 1st Plaintiff. In my judgment, one of them must have been Chiu. He was the one who had agreed with the Defendant to go and talk with the 1st Plaintiff about returning the money to the Defendant that she felt that she had been cheated out of by the 1st Plaintiff. This visit was shortly after the Defendant's discussion with Chiu. Also, the Defendant said that she knew that one of the two men was Chiu. I am satisfied that they were impolite and rude and made the threat that the police would come to the office very soon and take away all the documents and computers and that the press would also come. Lau was asked to get in touch with the 1st Plaintiff or else they would take action and the 1st Plaintiff would have to bear all the consequences. This was intended to be conveyed to the 1st Plaintiff. I also accept Connie Mo's evidence that one of the two men said that some people would just disappear without any apparent reason. This was also obviously intended to be conveyed to the 1st Plaintiff. This was, in my view, calculated to extract from the 1st Plaintiff the money said to be owing by him to the Defendant under a threat that he might well disappear if he did not repay. Although neither the 1st nor the 2nd Plaintiff gave evidence to the effect that they were frightened by this visit, I am satisfied that there was a reasonable apprehension of physical injury to the 1st Plaintiff. This was, in my view, sufficient to constitute an assault on the 1st Plaintiff. I am also satisfied that the tort of intimidation against the 1st Plaintiff has been established. 45. I am also satisfied that the 2nd Plaintiff did receive the telephone calls on 9 October 1996. The inference I draw is that it was probably Chiu who made the telephone calls. He said that the 1st Plaintiff had absconded. I do not, however, think that constituted an assault or intimidation even though the telephone calls must have been worrying and unpleasant. In my view, they were not actionable wrongs. 46. I am also satisfied, on the evidence of the 2nd Plaintiff, Lau and Connie Mo, that on the 9 February 1998 and the 13 February 1998 Kwong and Chan Ming Fat, as employees of Yue Hoi, assaulted and intimidated the 1st and 2nd Plaintiffs. I am satisfied that both of them shouted and used foul language on those occasions. 47. I am also satisfied that on 9 February 1998 Kwong threatened to go to the 1st Plaintiff's home to search him out. I have no doubt that the 2nd Plaintiff was scared by this incident and I accept her evidence in this regard. I also believe and accept the 1st Plaintiff's evidence that he was scared by the visit of the two men on 9 February 1998 and was concerned for his safety, the 2nd Plaintiff's safety and the safety of the other colleagues so much so that a report was made to the police. Apart from behaving in a rude and impolite manner and using foul language, a threat was made to search the 1st Plaintiff out of his home. This was obviously intended to be conveyed to the 1st Plaintiff as well as to the 2nd Plaintiff and would have caused a reasonable apprehension of physical violence. This, in my judgment, amounted to an assault and intimidation of both the 1st and 2nd Plaintiffs. 48. I am also satisfied that on 13 February 1998 Kwong made a threat that 15 young men would come up to AIA's premises and cause a disturbance on being told that the 1st Plaintiff was not in. This was again no doubt intended to be conveyed to the 1st and 2nd Plaintiffs. There was a reasonable apprehension of damage to property and physical injury to the person with the threatened presence of 15 young men coming into AIA's premises to cause a disturbance. In my judgment, it constituted an assault on, as well as intimidation of, both the 1st and 2nd Plaintiffs. 49. I am also satisfied that the debt collectors Kwong and Chan Ming Fat were responsible for the red paint that had been sprayed outside AIA's premises with Chinese characters asking the 1st Plaintiff to repay. I infer that this was done by either Kwong or Chan Ming Fat or both of them. This was not, in my view, strictly an assault but I am satisfied that this amounted to intimidation of the 1st Plaintiff. 50. The next thing that occurred was on 20 February 1998 when Lau received a menacing and threatening phone call. I am satisfied that the message was intended to be conveyed to the 1st and 2nd Plaintiffs. There was a direct threat to cause physical violence to the 1st and 2nd Plaintiffs as well as to Lau. I am satisfied that the caller threatened to chop up the 1st Plaintiff and disfigure them unless the 1st Plaintiff paid the money back to the Defendant. I disbelieve Kwong on these matters and reject his evidence. I am satisfied that the caller was either Kwong or Chan Ming Fat. They must, in my view, have been angry with the 1st Plaintiff for reporting the matter to the police. This led to the arrest of Kwong and Chan Ming Fat on 18 February 1998 and the telephone conversation to Lau occurred shortly after that on 20 February 1998. In my judgment, it was either Chan Ming Fat or Kwong who made that menacing phone call. This constituted an assault on both Plaintiffs as well as on Lau. This also amounted to the tort of intimidation against them. 51. The Defendant spoke about an incident in her clinic on 11 October 1996. I do not believe the Defendant when she said that two men went to her clinic on 11 October 1996 and threatened her. On her evidence, they were sent there by the 1st Plaintiff. I reject this part of her evidence. I do not believe that the 1st Plaintiff ever sent anyone to threaten the Defendant or that he would resort to such tactics. Is the Defendant liable? 52. Is the Defendant liable for the acts of her agents Chiu and the employees of Yue Hoi, namely Kwong and Chan Ming Fat? This depends on the facts of the case. 53. The Defendant is divorced with a daughter who has completed her studies in Canada and has returned to live in Hong Kong. The Defendant is a successful medical practitioner. She must have worked very hard to obtain her qualifications in Shanghai and in Hong Kong and to build up a successful medical practice in Hong Kong over the years. She currently runs three clinics in private practice. 54. There was clearly a dispute between the 1st Plaintiff and the Defendant over her CAD $150,000 investment in GYD. Until that dispute is resolved, it remains a dispute. As such, the 1st Plaintiff did not owe a debt to the Defendant. It is plain that the Defendant felt that she had been cheated by the 1st Plaintiff and that he should repay her CAD $150,000. She tried to collect what she regarded as a debt from the 1st Plaintiff in a manner which she believed to be quicker and cheaper than engaging a solicitor to pursue an action in the courts. 55. There can be nothing wrong per se in engaging a debt collector to collect a debt. After all, it is common knowledge that reputable banks and credit card companies do from time to time engage debt collectors to collect debts from customers. What is wrong, however, is the unlawful manner in which some debt collectors have used to collect debts by threats of assaults to the person and damage to property and sometimes actually carrying out their threats. Such disgraceful and unlawful conduct deserves the strongest condemnation. Unfortunately, there are no regulations governing debt collectors in Hong Kong. There is as yet no requirement for debt collectors to be licensed in Hong Kong. It is, in my view, important to determine whether, on the facts of each case, the employer is liable for the unlawful acts of the agent that he has employed. 56. I believe the Defendant and accept her evidence that she was concerned that Yue Hoi should collect the debt from the 1st Plaintiff only by lawful means. 57. I accept that the Defendant went through the letter of appointment and the clauses of the contract with Kwong and that she was assured by Kwong that only lawful means would be employed. On this matter, I also accept the evidence of Kwong. I was impressed with Li as a witness of truth. She was the one who suggested to the Defendant that she should use a debt collection agency instead of a solicitor and the Defendant accepted this suggestion. Li distinctly remembered that Kwong guaranteed the Defendant that only proper means would be employed in collecting a debt. 58. The evidence shows that the Defendant sought and obtained assurances from Kwong that only proper and lawful means would be used in collecting the debt said to be owing by the 1st Plaintiff. I accept this evidence. I accept that the second paragraph of the letter of appointment and clauses 3 and 9 of the contract the Defendant entered into with Yue Hoi as set out above were standard clauses inserted by Yue Hoi. These were drawn to the Defendant's attention. Of course, the said standard clauses do not have the effect of exempting an employer from liability if the employer in fact participates in the wrongful or unlawful acts. But in this case, I am satisfied that the Defendant's instructions to Kwong was that only lawful means should be used to collect CAD $150,000 with interest from the 1st Plaintiff. I am also satisfied that she was given an assurance by Kwong that only proper and lawful means would be used. It was in those circumstances that she agreed to employ Yue Hoi. That being so, I cannot see how she can be liable for the wrongful and unlawful acts of Kwong and Chan Ming Fat. 59. Mr Chung, Counsel for the Defendant, referred me to Vol. 1(2) Halsbury's 'Laws of England' 4th Edn. para. 52 where it is stated as follows :
60. In this case, the express authority of the agent was to collect the debt only by lawful means. The unlawful acts committed by Kwong and Chan Ming Fat were, in my judgment, outside the scope of the express authority. In my judgment , the unlawful acts were also not within the scope of the implied authority of the agent as they were, in my view, neither necessary nor incidental to the express authority. 61. On 7 October 1996 the acts of Chiu were also, in my judgment, outside the scope of the express authority. I am satisfied that the Defendant only agreed with him that he should talk to the 1st Plaintiff on the Defendant's behalf. In my judgment, Chiu's unlawful acts were also not within the scope of the implied authority as they were also, in my view, neither necessary nor incidental to the express authority. 62. Mr Kwok submitted that a person is liable for the manner in which his agent has conducted himself in doing the business which he has put the agent in his place to do that class of acts even if he has not authorised the particular act. He relied on Janvier v. Sweeney [1919] 2 K.B. 316 and also on Dyer and Wife v. Munday and another [1895] 1 Q.B. 742. Each case does, of course, depend on its own facts. Both of those cases were concerned with a master and servant relationship. It was held in those cases that the Defendant was liable for the acts of his servant or employee committed in the course of his employment. Both those cases are, in my view, distinguishable on the facts. They do not, in my view, assist the Plaintiffs. 63. Mr Kwok also relied on Jarmain v. Hooper, Pilcher and Heenan 6 M. & G. 827 and submitted that the Defendant was in law liable for the wrongs committed by her agents against the Plaintiffs. It was held, inter alia, in that case that the Defendant Heenan was bound by the act of his attorney who also had taken a step essentially necessary for the benefit of his client. The attorney had given directions to the sheriff to take the goods of the plaintiff in execution of judgment. There was a trespass because the wrong goods were seized. Heenan was held to be liable because what his attorney did was within the scope of his authority. That case is also distinguishable on the facts. I would observe that it has also been held that the principal will not be liable where the act was beyond the scope of the solicitor's authority (Smith v. Keal [1882] 9 Q.B.D. 340). In my view, Jarmain v. Hooper, Pilcher and Heenan, supra, does not assist the Plaintiffs. 64. Para. 8-174 of Bowstead & Reynolds on Agency 16th Edn. sets out Article 92 which deals with the liability of a principal for torts committed by his agent and states that :
On the facts of this case as I have found them, the wrongful acts of Chiu, Kwong and Chan Ming Fat were not specifically instigated, authorised, or ratified by the Defendant. Conclusion 65. In my judgment, the Defendant is not liable for the wrongful acts of Chiu, Kwong and Chan Ming Fat. The claim by the 1st and 2nd Plaintiffs against the Defendant is dismissed. 66. I make an order nisi that the 1st and 2nd Plaintiffs do pay the Defendant her costs of the action.
Representation: Mr. S.H. Kwok inst'd by Messrs. Charles Yeung Clement Lam Liu & Yip for Plaintiffs Mr. Hylas Chung inst'd by Messrs. Gary Lau & Partners for Defendant Plainitffs' appeal to Court of Appeal allowed. Please refer to CACV136/2000 dated 16 March 2001 |
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